Purchasing Terms & Conditions

MAGNESIUM ELEKTRON NORTH AMERICA INC., doing business as Luxfer  Graphic Arts (“Buyer”) 

Terms and Conditions of Purchase (“Conditions”) 


1. BASIS OF CONTRACT. 1.1 The Order constitutes  an offer by the Buyer to purchase materials and/or  services in accordance with these Conditions. BUYER  RESERVES THE RIGHT TO REVOKE THE ORDER,  WITHOUT NOTICE, AT ANY TIME PRIOR TO ITS 

ACCEPTANCE. The Order shall be deemed agreed to  and accepted by the Seller on the earlier of (a) written  acknowledgement of the Order or (b) Seller doing any  act consistent with fulfilling the Order, at which point the  contract between the Buyer and Seller shall come into  existence (“Contract”).  

1.2 Seller shall comply with the terms of the Order,  which terms include the following; 

(a) these Terms and Conditions of Purchase; 

(b) requirements stated or expressly incorporated  therein by reference on the Order; and 

(c) descriptions, drawings, planning, quality  requirements, instructions, and specifications  provided or specified by Buyer in writing from time  to time.  

2. WARRANTY. Seller warrants and represents that  with respect to all materials, supplies and equipment set  out in the Order (herein collectively referred to as  “materials”) delivered hereunder: (i) title shall be good,  merchantable, rightful and the materials free of any  security interest, lien or encumbrance; (ii) the materials  will be free from defects in material and workmanship, be  of quality, size, description and dimension required by  Buyer, and will meet the specifications set out in the  Order; and (iii) the materials, the process by which they  are made, the use for which they are designed by Seller  and Buyer’s use of the materials will not infringe any  patent, trademark, copyright, or other rights of any third  parties (“Intellectual Property Rights”). Seller further  warrants and represents that with respect to all services  set out in the Order (herein collectively referred to as  “services”) furnished hereunder: (i) the services will be  performed in a professional and workmanlike manner by  qualified Seller representatives; (ii) the services will be  performed in accordance with Buyer’s specifications and  instructions, the highest standard in the industry, and all  applicable laws; and (iii) the performance of the services  will not infringe any third party’s Intellectual Property  Rights. These express warranties shall not be deemed  waived by reason of either or both the receipt of the  materials and services, and payment therefore by Buyer.  

3. COMPLIANCE WITH LAWS; STANDARDS AND  TESTING. 3.1 In performing its obligations under the  Contract, Seller shall comply, and ensure that all of its agents, subcontractors and suppliers comply, with all  applicable state, federal and local laws, regulations,  ordinances, and rules (“Laws”), as well as all applicable  Buyer policies.  

3.2 Without limitation to clause 3.1, Seller represents  and warrants that:  

(a) all materials and/or services furnished  hereunder, and Seller’s manufacturing and/or  performance thereof, comply with all Laws, and, if  applicable, each chemical substance sold hereunder has  been reported to the US Environmental Protection  Agency (EPA), as required by the Toxic Substances  Control Act and regulations for inclusion in the inventory  of chemical substances compiled by the Administrator of  the EPA.  

(b) it shall treat materials prior to shipment to Buyer  in accordance with testing standards requested by  Buyer, and shall furnish Buyer certifications in support  thereof.  

(c) it shall take appropriate measures to prevent the  use, purchase, or sale of counterfeit or suspected  unapproved materials (being any item misrepresented  as having been designed and/or produced under an  approved system or other acceptable method). Further,  Seller shall have a process in place to (i) ensure the  sourcing of safe, reliable materials, (ii) mitigate the risk  of counterfeit materials from entering into its system, and  (iii) notify the Buyer’s quality department or other  appropriate individual within Buyer’s organization. 

(d) if the materials comprise raw materials, the Seller  shall: (i) notify the Buyer of changes in material and/or  process definition and, where required, obtain  organizational approval; (ii) allow rights of access for the  Buyer, its customers, and regulatory authorities to  relevant facilities and applicable records; (iii) flow down  to sub-tier suppliers the applicable requirements in the  Contract, including key characteristics where required;  and (iv) maintain records of quality related information  pertaining to the Order for a minimum of 15 years.  

3.3 In accordance with clause 3.1, Seller shall  grant Buyer entry to its facilities to determine and verify  Seller’s compliance with Laws, Seller’s processes, and  the quality of material and the work intended for  incorporation into the materials at all production stages.  

3.4 Without limitation to clause 3.1, Seller  acknowledges that that Orders from Buyer may be DPAS  rated. Buyer and Seller agree that these Orders shall be  identified by a priority rating consisting of either DX or  DO. DPAS rated Orders take precedence over all  unrated Orders, as necessary, to meet required delivery  dates. DX rated Orders take precedence over DO rated  Orders. Seller agrees to give priority to said Orders as set forth herein.  

3.5 Seller shall ensure that at all times it has,  and that it shall maintain, all the licences, permissions,  authorizations, consents, and permits that it needs to  carry out its obligations under the Contract. 

3.6 If Seller becomes aware of any breach of  this clause 3, it shall notify the Buyer immediately in  writing. 

4. INDEMNITY. Seller will defend, indemnify, and hold  harmless Buyer, its affiliates, vendors, and their officers,  directors, shareholders, employees, and agents from  and against any and all loss, liability and expense by  reason of (i) any actual or alleged violation of Laws, (ii)  any actual or alleged infringement of Intellectual  Property Rights, (iii) injury, death, or property damage  resulting, in whole or in part, from any negligent or more  wilful act or omission on the part of the Seller or which  may result from the installation, operation, or use of the  materials or services furnished hereunder, (iv) a defect  in the manufacture or design of the materials supplied  hereunder, or (v) any breach or alleged breach by Seller  of any representation, warranty, or other provision of  these Conditions. Upon notification from Buyer, Seller  shall promptly assume full responsibility for the defense  of any suit or proceeding which may be brought against  Buyer or any of its subsidiaries, affiliated companies,  agents, and vendors in connection with the indemnities  set forth herein. Seller shall not, without the prior written  consent of the Buyer, enter into any compromise or  settlement that commits the Buyer to take, or to forbear  to take, any action. Buyer reserves the right to control  any such suit or proceeding. Seller shall further  indemnify and hold Buyer, its subsidiaries, affiliated  companies, agents, and vendors harmless from any and  all expenses, losses, claims, royalties, profits, and  damages, including court costs and attorneys’ fees,  resulting from the bringing of such suits or proceedings  or the threat thereof and from any settlement, decree or  judgment therein.  

5. COVER; DELIVERY. 5.1 The dates of delivery and  quantities specified in the Order are of the essence, and  delivery must be affected within the specified time period or as otherwise agreed in writing by the parties. If  deliveries are not made on time and in the quantities  specified, Buyer reserves the right, without penalty, to  cancel the Order and to purchase the materials and/or  services elsewhere and hold Seller accountable  therefore.  

5.2 Seller shall cooperate with Buyer in respect  to all customs formalities applicable to the import or  export of the materials, shall be responsible for  determining proper import or export classifications, and  shall provide Buyer documentation to Buyer’s  satisfaction for such classifications. 

6. PACKAGING. Buyer’s purchase order number must  be shown on all packing cases and invoices. All  materials shall be packed for shipment according to  Buyer’s written instructions and, in any event, in a  manner sufficient to ensure the materials are delivered  in good and undamaged condition. Buyer shall not  (unless otherwise agreed in writing) be required to return  any packaging material. Any return of such packaging  material shall be at Seller’s expense. 

7. PRICES. Unless otherwise agreed to by the parties  in writing, orders shall not be filled at prices higher than  those prices set out in the Order. Unless otherwise  agreed to by the parties in writing, prices include  packaging, labelling, crating, taxes, and duties. Unless  otherwise agreed to by the parties in writing, all prices  include shipping, and delivery will be Cost, Insurance  and Freight (CIF) (based on ICC 2020 standards). Drafts  against the Buyer will not be honored, nor C.O.D.  shipments accepted, except by express written  agreement of the parties to that effect. 

8. INSPECTION AND REJECTION. Materials and  services are subject to inspection, test, and acceptance  by Buyer and the ultimate purchaser. Buyer shall have a  reasonable number of days from the date of arrival to  inspect the materials and review the services and notify Seller of any non-conformity to the Order (including  quantity, quality, delivery dates, and any other  specifications set out in the Order). Such inspection may  not occur until final sale of the materials or services to  Buyer’s customers. Buyer reserves the right to reject any  material or service, even after delivery and inspection at  Buyer’s site, which does not fulfil the specifications of the  Order and to (i) return rejected materials to Seller at  Seller’s risk and expense for full credit at the Order price;  (ii) to require Seller at Seller’s expense to replace  rejected materials, or reperform rejected services; or (iii)  consider the Contract breached as to the rejected  material or service and cancelled as to any unfulfilled  portion of the Order. The remedies set out above are  without prejudice to the Buyer’s right to claim damages  for any other costs, loss, or expenses incurred by the  Buyer which are in any way attributable to the Seller’s  failure to carry out its obligations under the Contract, and  Seller is not relieved of the responsibility imposed by this  clause, either as to proper packaging, quantity of  materials, quality of materials or services, or  specifications, by reason of acceptance by Buyer.  

9. CHOICE OF LAW. The Contract shall be construed,  and the respective rights and duties of Buyer and Seller  shall be determined, according to the laws of the State  of Illinois without giving effect to its principles of conflicts  of laws. The UN Convention on Contracts for the  International Sale of Goods shall not apply to this  Agreement. 

10. PAYMENT AND INVOICING. Invoices and bills of  lading showing full routing should be dated and mailed  at the time of shipment and a separate invoice must be  made for each destination showing point of shipment and  how the materials were shipped. Invoices bearing  transportation charges must be supported with attached  original receipted transportation bills and, in the case of  consolidated carload shipments, must show weight and  rate. F.O.B. point and cash discount terms must be  shown on all invoices. The discount period, if any, stated  in the face of the Order shall be calculated from the date  of receipt by Buyer of a proper invoice from Seller. Unless otherwise agreed to in writing by the parties,  Buyer reserves a minimum of sixty (60) days from the  date of Buyer’s receipt of Seller’s invoice, in proper form  and with necessary supporting documentation, for  processing and payment of invoices. 

11. CONFIDENTIALITY. The parties anticipate that  Seller will obtain and have access to confidential  information (“Confidential Information”) of Buyer as a  consequence of this Contract. Seller agrees, on behalf  of itself and its officer, employees, agents and all other  persons acting on or for its behalf, (i) to keep all  Confidential Information of Buyer confidential and not to  disclose such Confidential Information, either directly or  indirectly, to any third party, and (ii) not to use any such  Confidential Information for any purpose other than for  performance of the transaction contemplated by this  Contract without the prior written consent of the non disclosing party. Seller shall insure that all officers,  employees, agents and other persons acting on or for its  behalf, have agreed to be bound by these obligations of  confidentiality, and shall cause such individuals to  execute such further agreements of confidentiality as  Buyer may require. These obligations shall not apply to  any: (i) information that Seller knows about the other  prior to the date of the Order except any information  which is the subject of unexpired confidentiality  obligations; (ii) information that is publicly known, or  becomes publicly known, through no breach of a duty of  confidentiality owed to Buyer; (iii) information that is  rightfully obtained by Seller from any third party who  owes no duty of confidentiality to Buyer; (iv) information  that is independently developed by or for Seller without  reference to or knowledge of Confidential Information  made hereunder, or (v) is otherwise necessary to  disclose in order to comply with applicable law, but only  to the extent that any such disclosure is reasonably  necessary and Seller has provided Buyer with sufficient  advance notice of such disclosure to reasonably permit  Buyer to contest the disclosure. Seller agrees to take all  reasonably necessary steps, and to prepare and execute  all necessary documents, to protect and prohibit the  disclosure and use of Confidential Information of Buyer  in contravention of this Contact, using at least the same  care as it uses to maintain the confidentiality of its  confidential information, and no less than reasonable  care. In the event of a breach or threatened breach by  Seller of its confidentiality obligations hereunder, Seller  acknowledges that Buyer will suffer irreparable harm  and, as such, in addition to any and all other rights which  may be available, shall have the right to seek injunctive  relief and other appropriate equitable remedies to  restrain any such breach or threatened breach, without  the obligation to post a bond. Upon request, Seller shall  immediately return to Buyer the originals and all copies  of any Confidential Information of Buyer. 

12. ASSIGNMENT. Seller may not assign the Contract  or any of Seller’s obligations hereunder without Buyer’s  written consent.  

13. INSURANCE. Seller shall maintain at its own  expense at all times while performing hereunder  occurrence-based commercial general liability insurance  and product-liability insurance with a reputable and  financially responsible carrier(s) satisfactory to Buyer for coverage in aggregate amounts of not less than USD 5 million per occurrence, USD 10 million in aggregate, respectively, professional liability insurance in amounts  not less than USD 2 million per occurrence and USD 5  million in aggregate, respectively and all other insurance  required by applicable law. Seller shall also maintain  workers compensation and employers liability insurance  as required by applicable state law. Seller shall furnish  insurance certificates as directed by Buyer, satisfactory  in form and substance to Buyer, showing the above  coverages, and providing for at least 10 days prior  written notice to Buyer by the insurance company of  cancellation or material modification. 

14. SELLER’S REPRESENTATIVES. If Seller’s  employees, subcontractors, consultants, or other  representatives under Seller’s control perform any  services at Buyer’s premises or at Buyer’s direction at  the premises of others, (i) such persons shall comply  with all rules and regulations of such premises and (ii)  Seller shall keep materials and the premises on which  the work is performed free and clear of all liens for  material and labor incident to the performance of Seller’s  services hereunder. In the event of entry by Seller or any  of Seller’s agents or employees upon the property or  premises of Buyer in the performance of this Contract,  Seller agrees to (i) provide all necessary safeguards and  to take all precautions against the occurrence of  accidents, injuries, or damages to any persons or  property and (ii) be responsible for, and indemnify and  hold harmless the Buyer from, all loss or damage and  any or all claims rising by reason of accidents, injuries,  or damage to any persons on Buyer’s property in  connection with Seller’s performance of this Contract. 

15. TERMINATION. 15.1 Buyer may terminate the  Contract, in whole or in part at any time before delivery  with immediate effect by giving the Seller written notice,  whereupon the Seller shall discontinue all work on the Order. Buyer shall pay Seller fair and reasonable  compensation for any work-in-progress at the time of  termination, but such compensation shall not include  loss of anticipated profits or any consequential loss. 

15.2 Without limiting its other rights or remedies, the  Buyer may terminate the Contract with immediate effect,  and without any liability on Buyer’s part, by giving written  notice to the Seller if: (a) the Seller commits a breach of  any term, representation, or specification of the Contract  and (if such breach is remediable) Seller fails to remedy  that breach within 7 days of being notified in writing to do  so; or (b) any proceeding, voluntary or involuntary, in  bankruptcy or insolvency is brought by or against Seller,  or a receiver or assignee is appointed for the benefit of  creditors, with or without Seller’s consent.,  

16. BUYER’S PROPERTY. All tools, dies, patterns,  designs, molds, drawings, specifications, and other data  or papers, and the like furnished by Buyer to Seller in  connection with this Order by Buyer remains the property  of Buyer. In the event materials furnished by Buyer to  Seller include any intellectual property of Buyer, Seller is  granted a non-exclusive, non-transferable, non sublicenseable and non-assignable license required only  for the production of materials or completion of services  under this Order, and shall use Buyer’s intellectual  property only for that purpose. Except for this license,  no right, interest, ownership or privilege of use of Buyer’s  intellectual property shall inure to the benefit of Seller.  

17. INTELLECTUAL PROPERTY. 17.1 Buyer retains  ownership of all right, title and interest in and to any and  all information and materials delivered by it to Seller (“Buyer Materials”). Buyer grants to Seller a limited,  non-exclusive, non-transferable, royalty-free license,  without the right to grants sublicenses, to use the Buyer Materials solely for purposes of performing its obligations  under this Contract.  

17.2 Seller agrees that any ideas, designs,  inventions, discoveries, computer programs or code,  improvements, written materials, or the like that Seller may conceive, make, invent, produce, develop, reduce  to practice or suggest in the performance of this Contract (collectively, the “Technology”), shall be the absolute  property of Buyer, and shall be promptly disclosed by  Seller to Buyer. Seller further agrees that any work of  authorship prepared by Seller in the performance of this  Contract (each, a “Work of Authorship”), shall be a  “work made for hire” and Buyer shall be the sole author  of such Work of Authorship and the owner of all rights  comprised in the copyright of such Work of Authorship.  Seller hereby assigns to Buyer exclusively throughout  the world all right, title and interest (choate or inchoate)  in and to: (i) the Technology and all precursors, portions  and works-in-progress with respect thereto; (ii) all  information, know-how, and materials relating thereto or  to the development, support or maintenance thereof, (iii)  the Works of Authorship, to the extent not deemed  “works made for hire” by operation of law; and (iv) all  copyrights, patent rights, trade secret rights, trademark  rights and associated goodwill, mask works rights, sui generis database rights, and all other intellectual and  industrial property rights of any sort and all contract  rights and causes of action (past, present and future),  incorporated or embodied in, or related to, any of the  foregoing. Seller shall itself, and shall cause its  employees, agents, officers and others providing  services hereunder to, execute such confirmatory intellectual property assignments in favor of Buyer as  Buyer may require. 

18. AMENDMENT AND MODIFICATION. No change  to the Contract is binding upon Buyer unless it is in  writing, specifically states that it amends the Contract, and is signed by an authorized representative of Buyer.  

19. JURSDICTION; VENUE. Any dispute, controversy  or claim arising out of or related in any way to the  Contract, including but not limited to, the validity, scope, and enforceability of this Contract, which cannot be  amicably resolved by the parties, shall be subject to the  jurisdiction of the state and federal courts located in the  State of Illinois. Seller consents to the exclusive  jurisdiction of such courts, and agrees to waive any  objection to the venue of such courts. The prevailing  party in any such proceeding shall be entitled to  reimbursement from the other party of the out-of-pocket,  costs, expenses and fees (including reasonable  attorneys’ fees) incurred in connection with such  proceeding. 

20. NOTICE. For the purpose of any notice required to  be given by this contract or under any applicable  provisions of the Commercial Code or pursuant to other  pertinent law, notice to Buyer shall be sent to:  lga.usa.sales@luxfer.com.  

21. EXPORT CONTROL. Provided items and/or  technical data herein may be subject to export control  under the International Traffic in Arms Regulations  (ITAR) or the Export Administration Regulations (EAR).  Such data should not be disclosed, exported, or  transferred in any manner to any foreign person or any  foreign country without prior written approval of the  Office of Defense Trade Controls, U.S. Department of  State, the Bureau of Industry and Security, or the U.S.  Department of Commerce. All suppliers of the Buyer  shall be required to have a documented ITAR  Compliance Program. 

22. ETHICAL BEHAVIOR. In performing its obligations  under the Contract, Seller shall conduct its business in  an ethical manner and hold its workforce, employees, contractors, and agents accountable for ethical behavior. Seller shall ensure that its workforce, employees,  contractors, and agents are aware of their contribution to  material and service conformity and safety. Buyer  reserves the right to request training documentation from  Seller in order to verify that ethical behavior expectations  are being communicated to Seller’s workforce,  employees, and agents.