Forms
Purchase Order Terms and Conditions
1. These terms and conditions, including the provisions on the face hereof, (the “Contract”) govern the parties’ duties, obligations and relationship with respect to the sale by the vendor described on the face hereof (“Seller”) and the purchase, acceptance and use by Silgan of the goods and/or services described on the face hereof (the “Products”). This Contract constitutes an offer by Silgan to buy the Products from Seller in accordance with the terms contained herein. If this document is deemed an acceptance of a prior offer by Seller, such acceptance is limited to the express terms and conditions contained herein. Seller’s acceptance of this offer is limited to the terms, covenants and conditions contained herein. Buyer hereby objects to and rejects any additional, different or varying terms proposed by Seller, except additional warranties made by Seller, regardless of whether such terms would materially alter these terms and conditions. Seller’s proposal of additional or different terms shall not operate as a rejection of Silgan’s terms unless such variances are in the description, quantity, price, or place or date of delivery of Products, and Silgan’s terms shall be deemed accepted without such additional or different terms. THIS CONTRACT CONSTITUTES THE FINAL WRITTEN EXPRESSION OF THE TERMS BETWEEN SILGAN AND SELLER REGARDING THE PRODUCTS AND IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THOSE TERMS. ANY TERMS, CONDITIONS, NEGOTIATIONS OR UNDERSTANDINGS BETWEEN THE PARTIES WHICH ARE NOT CONTAINED HEREIN SHALL HAVE NO FORCE OR EFFECT UNLESS IN WRITING AND SIGNED BY SILGAN, EXPRESSLY STATING SILGAN’S INTENT TO MODIFY THESE TERMS AND CONDITIONS.
2. If prices are omitted from the face of this Contract, Seller’s prices are subject to Silgan’s written approval and acceptance. Delivery shall be FOB (as defined in the applicable Uniform Commercial Code, as determined pursuant to Section 10 below) Silgan’s dock (the “Delivery Point”) regardless of which party arranges and/or pays the freight. Title to and risk of loss of the Products shall pass from Seller to Silgan upon delivery at the Delivery Point. Time is of the essence. Products must be shipped on the date or during the time specified. Should Seller fail to ship any Products in accordance with these requirements, Silgan shall have the right to cancel, without further obligation, any remaining unshipped Products upon delivery of written notice of such cancellation to Seller. All Products shall be packed and shipped by Seller in accordance with Silgan’s instructions and good commercial practices to ensure against damage in transportation. All Products are subject to Silgan’s inspection for quality and workmanship and its approval, notwithstanding any prior payment. In addition, Silgan may conduct a facility inspection to insure Seller’s capacity to consistently meet specification and quality requirements. If Silgan has previously acquired like Products from Seller, any changes in specifications since that sale which might affect any characteristic or performance of the Products must be approved in writing by Silgan prior to shipment.
3. Seller warrants to Silgan that: (a) the Products (including Products sold to Silgan but manufactured by others) (i) will be free from all defects in workmanship and materials; (ii) will conform to required specifications; and (iii) will be fit for Silgan’s intended use; (b) the use and/or sale of Products will not infringe or violate any domestic or foreign patent, any right in or to any unpatented invention or idea, or any trademark, copyright or other intellectual property right; (c) the Products and their production, storage, pricing, delivery and sale hereunder are in compliance with all applicable foreign, U.S., state and local laws, orders, rules and regulations.
4. If any Products are defective, unsuitable or do not conform to all of the terms or specifications contained in this Contract and with all warranties implied by law, then Silgan may at its option reject and return any or all such Products to Seller for full credit or refund of the purchase price or for repair at Seller’s expense and may charge Seller such price or expense and the cost of any incurred inbound and outbound freight, handling, storage and/or inspection charges. If modifications are required by Silgan, Seller shall pay all costs of modifications necessary to bring the Products into compliance with the specifications. Silgan may cancel all or part of the Products ordered under this Contract at any time without cause by providing written or electronic notice to Seller
5. Any covered federal contractor/subcontractor involved in the fulfillment of this Contract shall, where applicable, comply: (a) with the terms of the Equal Opportunity clause contained in 41 C.F.R. § 60-1.4(a), or 2-5 Revised 05/07/2015 its successors, which clause is hereby incorporated by reference as provided for in 41 C.F.R. § 60-1.4(d); (b) with the terms of the Equal Opportunity for Disabled Veterans, Recently Separated Veterans, Other Protected Veterans, and Armed Forces Service Medal Veterans clause contained in 41 C.F.R. § 60-300.5(a), or its successors, which clause is hereby incorporated by reference as provided for in 41 C.F.R. § 60-300.5(d); (c) with the terms of the Equal Opportunity for Special Disabled Veterans, Veterans of the Vietnam Era, Recently Separated Veterans and Other Protected Veterans clause contained in 41 C.F.R. § 60-250.5(a), or its successors, which clause is hereby incorporated by reference as provided for in 41 C.F.R. § 60-250.5(d); (d) with the terms of the Equal Opportunity for Workers with Disabilities clause contained in 41 C.F.R. § 60- 741.5(a), or its successors, which clause is hereby incorporated by reference as provided for in 41 C.F.R. § 60- 741.5(d); (e) with the Fair Labor Standards Act of 1938, as amended; and (f) with the terms of the “Employee Rights Under the National Labor Relations Act” employee notice clause contained in 29 C.F.R. Part 471, Appendix A to Subpart A, or its successors, which clause is hereby incorporated by reference as provided for in 29 C.F.R. § 471.2(b).
6. Seller hereby certifies to Silgan that: (a) if applicable, Seller is in compliance with the California Transparency in Supply Chains Act of 2010; (b) Seller is in compliance with the laws regarding slavery and human trafficking in the countries in which Seller produces its products; (c) Products sold to Silgan do not contain any chemical that requires a notice under California Proposition 65, the Safe Drinking Water and Toxic Enforcement Act of 1986; and (d) Products sold to Silgan do not contain Conflict Minerals, as defined in Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, that are sourced from the Democratic Republic of the Congo or surrounding areas
7. Seller shall defend, indemnify and hold harmless Silgan and its affiliated corporations, employees, customers, successors and assigns, and any other third party to whom Silgan may owe a similar obligation by contract, lease agreement or operation of law from and against any charges, claims, demands, suits, actions, judgments, liabilities, losses, damages and expenses, including, without limitation, reasonable attorney’s fees and consequential and incidental damages, allegedly arising out of or in any manner resulting from or connected with: (a) the Products purchased hereunder or the manufacture, sale, purchase, consumption or use of such Products (except to the extent directly resulting from Silgan’s specifications, negligence or willful misconduct); (b) any claim that a Product sold by Seller, or the use of such Product, constitutes an infringement of any patent, trademark or other third party intellectual property right; (c) any breach in this Contract by Seller; (d) any actual or alleged violation of applicable laws, orders, rules or regulations by Seller; or (e) any negligence or willful misconduct by Seller’s servants, agents or employees. Seller agrees to maintain insurance coverage as provided in Silgan’s Company Policy Statement Regarding Contractor Insurance Requirements.
8. Any trailer, container, pallet or other means used for the transportation or storage of the Products that may be subject to deterioration shall be suitably constructed for transport of such Products, shall be properly cleaned in order to prevent possible contamination and shall protect such Products against deterioration. Each container or pallet shall have a stamped lot number indicating the date Products were produced. Codes must also be recorded on the shipping manifest.
9. Seller agrees that all Silgan information not otherwise in the public domain or otherwise known to Seller without restriction as to its use at the time of the disclosure, including, but not limited to, technical data, specifications, designs, developments and requirements, disclosed by Silgan to Seller is (a) confidential information and shall be maintained as such by Seller and (b) shall not be used by Seller for any purpose other than performing its obligations under this Contract. This paragraph is in addition to other confidentiality or similar agreements between the parties.
10. This Contract and all disputes arising under or relating to this Contract shall be governed by the internal laws of the state in which the Products are to be delivered to Silgan (without regard to such state’s choice of law provisions), including the Uniform Commercial Code as adopted in such state. Seller hereby irrevocably submits itself to and consents to the jurisdiction of the courts situated in such state.
COMPANY POLICY STATEMENT REGARDING CONTRACTOR INSURANCE REQUIREMENTS
Purpose
This policy is designed to ensure that all contractors performing work or providing products and/or services for Silgan Containers and Silgan Closures (together with their respective parent, subsidiary and affiliated companies, collectively referred to herein as “Silgan”) are maintaining insurance coverage that is acceptable to Silgan.
Scope
This policy outlines contractor insurance requirements that must be verified by the Plant Manager or Project Engineer prior to anyand all contractor/s performing work or providing products and/or services for Silgan.
Policy
All contractors performing work or providing products and/or services for Silgan are required to purchase and maintain specific types of insurance with minimum coverage limits and specific policy endorsements. The insurance shall be written for not less than the limits of liability indicated in this policy or statutory limits required by law. The insurance coverage shall include completed operations and contractual liability as applicable to the contractor’s obligations under the Indemnification portion of this policy
Minimum Financial Requirements of Insurance Companies
Silgan will only accept insurance from insurance companies which are approved to do business in the state where the service/activity is to be performed and which have received an A.M. Best Company rating of at least, Level: A-, Class: VII.
Guide to A.M. Best’s Ratings
(Rating Levels and Classes)
Levels:
| A++, A+……..Superior | B, B-……….Adequate | D………..Very Vulnerable |
| A, A-………….Excellent | C++, C+……Fair | E………..Under State Supervision |
| B++, B+……..Very Good | C, C-……….Marginal | F…………In Liquidation |
Financial Size Categories:
(In $000 of Reported Policyholder’s Surplus and Conditional Reserve Funds)
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| Type of Insurance | Limits |
| General Liability (Occurrence Form) | |
| General Aggregate | $2,000,000 |
| Products – Completed Operations AGG | $2,000,000 |
| Personal and Adv Injury | $1,000,000 |
| Each Occurrence | $1,000,000 |
| Damage to Rented Premises (ea occurence) | $100,000 |
| Medical Expenses (any one person) | $5,000 |
| Automobile Liability | |
| Combined Single Limit (any auto) | $1,000,000 |
| Workers’ Compensation | |
| Workers’ Compensation | Statutory Limits |
| Employers Liability | |
| Each Accident | $500,000 |
| Disease – Policy Limit | $500,000 |
| Disease – Each Employee | $500,000 |
| Professional Liability / Errors & Omissions | |
| (For Consultants Only) | |
| Each Occurrence | $2,000,000 |
| General Aggregate | $2,000,000 |
Note: The limits listed above are minimum limits only. Higher limits may be necessary depending on the dollar value of the contract.
Insurance Policy Endorsements
The Contractor shall require any and all subcontractors to have all insurance policies covering any work performed specifically endorsed as follows:
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Include Silgan, its directors, officers, agents and employees as additional insured, Workers’ Compensation and Professional Liability I Errors & Omissions excluded.
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Provide that the insurance shall be primary and non-contributing.
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Waive the right of recovery or subrogation against Silgan, its directors, officers, agents and employees. In addition to the coverage listed, this waiver must be added by endorsement to all floaters or policies covering Contractors property used in execution of work performed under this purchase order.
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No cancellation or material change in the policies shall become effective except on thirty (30) days written notice thereof to Silgan.
Indemnification
The Contractor shall:
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Indemnify and hold harmless Silgan, its directors, officers, agents and employees from and against any and all claims, demands, causes of action whatsoever, loss, costs, damages and expenses including attorneys’ fees and court costs, for injury to or death of persons and for damage to property arising or resulting from the acts, omissions or negligence, in whole or in part, of the Contractor, its agents, employees, Subcontractors and others in the performance of the work and any and all related matters, except any such injury or harm as may be determined caused by the fault or negligence of Silgan.
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Reimburse Silgan for any and all said claims, demands, causes of action whatsoever and for all loss, costs, damages and expenses paid by Silgan for injury or death of persons arising or resulting from any act, omission or negligence, in whole or in part, of the Contractor, Subcontractor or anyone employed by any of the foregoing parties in the performance of their work and any and all related matters, except any such injury or harm as may be determined caused by the fault or negligence of Silgan.
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Indemnify and hold Silgan harmless from and against any and all claims for liens and liens filed or asserted against the work. The Contractor agrees to reimburse Silgan for all moneys paid to satisfy or discharge claims of liens, arising or resulting from work performed, filed or recorded against the property including all amounts paid for attorneys’ fees and court costs.
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In any and all claims against Silgan, its directors, officers, agents and employees, by any employee of the Contractor, any Subcontractor, anyone directly or indirectly employed by any of them. The indemnification obligation shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the Contractor or any Subcontractor under Worker’s Employee Benefit Acts and Contractor or any Subcontractor hereby waives any immunity they may be provided under those Acts.
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Each liability policy shall contain a Severability of Interest Provision allowing Silgan and the other additional insureds to recover on a claim covered by the policy notwithstanding that they are additional insureds.