Tilibra Produtos de Papelaria Ltda.
Terms and Conditions to Purchase Order
1. Acceptance; Entire Agreement: The following Terms and Conditions are incorporated by reference into each purchase order and constitute Buyer's offer to purchase products and services of any kind from Seller. As used herein, reference to this purchase order include these Terms and Conditions. Buyer expressly objects to and expressly rejects any provisions additional to or different than the terms hereof that may appear in Seller’s quotation, acknowledgment, confirmation, invoice or in any other prior or later communication from Seller to Buyer unless such provision is expressly agreed to by Buyer in a writing signed by Buyer. No change, modification, rescission, discharge, abandonment, or waiver of these Terms and Conditions shall be binding upon Buyer unless made in writing and signed on its behalf by a duly authorized representative of Buyer and specifically references these Terms and Conditions to purchase order. No conditions, custom, usage of trade, course of dealing or performance, understanding or agreement purporting to modify, vary, explain or supplement these Terms and Conditions shall be binding unless hereafter made in writing and signed by the party to be bound. Mistakes in prices, discounts, specifications, delivery schedules or other terms and any noticeable discrepancies in quantities or sizes are to be reported immediately by Seller to Buyer and Seller shall immediately remedy such mistakes by refunding incorrect charges to Buyer or correcting such other discrepancies, unless otherwise directed by Buyer.
2. Delivery of Products; Transfer of Title: Seller shall deliver the products to Buyer on the date(s) and in accordance with the shipping terms indicated in the purchase order. Time is of the essence. If a delivery is not expected to be made on time, Seller will notify Buyer and will take all reasonable steps at Seller's own cost to expedite delivery; provided, however, Buyer reserves the right, without liability, in addition to its other rights and remedies, to cancel this purchase order notice to Seller and arrange for completion and/or purchase of substitute items elsewhere and to charge Seller with any loss or additional costs incurred. Seller shall give Buyer sufficient notice of the dispatch of the products and any other notice necessary to take delivery of the products. Title shall pass upon delivery.
3. Packing and Marking: All products shall be packed, crated and braced to prevent damage or deterioration and in accordance with all applicable laws with no charges being paid by Buyer for packing, crating or bracing. The contents of each shipping container shall be clearly identified on the outside of the container, and the purchase order number for the contents shall be clearly stated on the outside of each such container, if applicable.
4. Invoices: Seller shall issue one commercial invoice and packing list for each shipment of products that includes relevant invoice details, such as the tax ID of the Seller and the Buyer, unit and total price, quantity, item number, purchase order number, HTS code, country of origin, number and date of the customs documents (if applicable), and the address of manufacturing location. Seller’s packing list must also accurately state the weights by line item number. The invoice and the XML file containing all the information must be sent to firstname.lastname@example.org within 05 (five) days after its issuance, under penalty of being rejected. Seller shall provide to Buyer the country of origin of manufacture validation for the products on an annual basis and shall certify to Buyer on an annual basis that the country of manufacture for the products is accurate and correct on all documentation and declarations. Seller agrees that any transshipments of products will not change the original country of origin of manufacture of the products. In the case of purchase of goods, the invoice must be delivered with the products and stamped by the Buyer upon receipt, being prohibited the delivery of the products in the last 4 days of the month. In the case of provision of services, the invoice must be issued by the 20th day of each month. Invoices that are not issued in accordance with the conditions described in these Terms and Condition to Purchase Order will be rejected and returned.
5. Price: The price shall be that stated on the purchase order. If there is no price stated in the purchase order or any agreement between Buyer and Seller,
6. Terms of Payment: The terms of payment shall be as set forth on the purchase order. The payment term will be at least 30 (thirty) days after the issuance of the invoice. The account for deposit the payment must be held by the Seller, under penalty of withholding the amounts.
7. Inspection: Buyer and its agents and representatives may inspect any products ordered under this purchase order during their manufacture, construction or preparation at reasonable times, and shall also have the right to inspect such products at the time of their completion and/or delivery notwithstanding any prior payment. Products delivered under this purchase order may at any time be rejected for defects revealed by inspection or analysis even though such products may have previously been inspected accepted and paid. Buyer may return rejected products to Seller for a full refund or replacement, at its option, and in each case at Seller’s risk and expense, including shipping and transportation charges and other costs incurred by Buyer due to the rejection of products.
8. Quality; Drawings and Specifications: The products supplied by Seller shall equal or exceed the quality approved with any production samples or industry standard, whichever is higher, and shall conform to Buyer’s specifications and quality control standards. Any specifications, drawings, notes, instructions, engineering information, or technical data furnished by either Buyer or Seller to the other, or referred to in the agreement between Buyer and Seller, if any, shall be incorporated herein by reference. Seller shall be fully and solely responsible for obtaining product data adequate to design, manufacture, fabricate, construct and deliver the products in compliance with all requirements of this Purchase Order. Buyer shall retain title to all such documents which it provides or causes to be given to Seller, and Seller shall not use any of such documents or the information contained therein for any purpose other than in performance of this purchase order. Seller shall not disclose such documents or information to any party other than Buyer or a party duly authorized by Buyer. Upon Buyer’s request, Seller shall promptly return to Buyer all such documents and copies thereof.
9. Warranties: Seller expressly warrants that the products will: (a) be of merchantable quality; (b) be fit for a consumer’s particular purposes; (c) be of high quality and be free from defects in material and workmanship; (d) comply with the most stringent of Buyer’s or Seller’s specifications, performance guarantees and requirements; and (e) comply with the highest of all nationally or internationally recognized codes and established industry standards. All products shall be sold by Seller to Buyer free and clear of any liens and encumbrances. Seller’s warranties shall survive inspection, delivery and acceptance of the products and/or payment by Buyer. If the products do not conform to any of these warranties, then, at Buyer’s option, Seller shall repair or replace the defective products, at Seller’s expense including shipping and transportation charges and other costs incurred by Buyer. In the event that, in the reasonable opinion of Buyer, Seller cannot repair or replace the products within a commercially reasonable time, then Buyer may take all steps necessary to have the breach of warranty cured and/or may cancel this purchase order without penalty or further responsibility. In any event, Seller shall be responsible for all expenses (including but not limited to expert witnesses’ fees, court costs and attorneys' fees) and damages that Buyer incurs because of the actual or alleged breach of warranty. The foregoing warranties and obligations shall also apply to the products supplied by Seller in such repair, replacement or re-performance. Disclaimers of express or implied warranties and limitations of liability in any Seller document will be of no effect unless specifically agreed to in writing by Buyer, and even then shall not apply in the event of bad faith by the Seller in the performance of any Purchase Order. Seller hereby unconditionally and irrevocably waives any right under Article 26 of the Brazilian Consumer Protection Code.
10. Compliance with Laws: Seller warrants that neither any of the products provided to Buyer nor their manufacture, fabrication, construction, transportation, sale or use shall violate or cause Buyer to be in violation of any federal, state or local law, code, ordinance, regulation, standard, rule, requirement or order (collectively, “Laws”). In the event that any applicable Laws conflict with each other, the most stringent provisions shall apply. Seller shall promptly take, at its expense, all action necessary to make the products comply with the applicable Laws after Seller receives either from the applicable agency or from Buyer a notice that some violation exists with respect to the products. If Seller fails to promptly take such action, Buyer may take all such action at Seller’s sole cost and expense. Seller shall also be liable for the payment of any penalties and/or fines imposed as a result of the failure of any Item provided by or for Seller hereunder to comply with all of the above requirements.
11. Restricted Substances; Conflict Minerals: Seller hereby represents and warrants that it has received and read Buyer’s Restricted Substances requirements located at https://www.accobrands.com/values/product-safety-compliance/, which may be amended from time to time, and agrees that it shall comply with such requirements. In addition, Seller shall not use any tantalum, tungsten, tin or gold (the “Conflict Minerals”) in the manufacture of the products, if such Conflict Minerals originate in the Democratic Republic of the Congo or in the adjoining countries of Angola, Burundi, Central African Republic, the Republic of the Congo, Rwanda, South Sudan, Tanzania, Uganda, and Zambia (the “Conflict Mineral Countries”), unless the source of the minerals are certified as Conflict Free. Seller shall conduct a country of origin inquiry with its supply chain to identify the source of all Conflict Minerals, and shall certify the usage, origin and source of all Conflict Minerals in Buyer’s online portal as directed by Buyer. Seller shall provide Buyer with copies of such records as Buyer requests to verify the source and chain of custody of the Conflict Minerals. Seller shall permit Buyer or its representatives to inspect Seller’s books and records from time to time to audit compliance with this Section 11. If Seller is found to be using Conflicts Minerals from any of the Conflict Mineral Countries in the products to be purchased under this purchase order, Buyer shall be entitled to cancel any outstanding purchase order and immediately terminate any agreement between Buyer and Seller upon notice and without penalty or any liability for Buyer.
12. Anti-Corruption: Seller hereby represents and warrants that it has received and read a copy of the ACCO Brands Anti-Bribery and Anti-Corruption Policy (the “ACCO Brands ABAC Policy”), which is located in Portuguese at https://www.tilibra.com.br/politica-anticorrupcao and in English at https://accobrands.gcs-web.com/static-files/92fafea7-2835-421c-8246-029f92f6e426, and may be amended from time to time, and agrees to comply with it and with the Anti-Corruption Laws (as defined below). Additionally, Seller warrants that the employees, temporary workers, agents, consultants, partners, officers, directors, members, shareholders, representatives and subcontractors of Seller performing under this purchase order (each, a “Seller Representative”) shall comply with the ACCO Brands and the Anti-Corruption Laws. In furtherance of these obligations, Seller shall not directly or indirectly pay, offer, give, promise to pay or authorize the payment of any money or other things of value in connection with its performance of any purchase order to a Government Official (as defined below) to obtain or to retain business or to secure any improper advantage; further, Seller shall cause the Seller Representatives to refrain from such activity. Seller shall promptly report to Buyer in writing any request or demand it receives for an improper or suspicious financial payment or other advantage of any kind in connection with the performance of this purchase order. If Buyer in good faith reasonably believes that Seller or a Seller Representative has violated the ACCO Brands ABAC Policy or any Anti-Corruption Law, Buyer shall be entitled to cancel any outstanding purchase order and immediately terminate any agreement between Buyer and Seller upon notice to Seller and without penalty or any liability for Buyer.
As used herein, “Anti-Corruption Laws” means any and all laws, treaties, regulations, norms, directives, provisions, acts, rules, decisions, judgements, providences, interpretations and authorizations concerning corruption, bribery, money laundering or similar activities in force, including without limitation (1) the Anticorruption Law of Brazil (Law nº 12.846 / 13), (2) the U.S. Foreign Corrupt Practices Act, (3) the UK Bribery Act, and (4) all other applicable anticorruption laws and regulations, including those implemented in connection with the U.N. Convention Against Corruption. “Government Official” means (a) an officer or employee of any government or any department, agency, or instrumentality thereof, including government-owned or government-controlled commercial entities; (b) an officer or employee of a public international organization; (c) any person acting in an official capacity for or on behalf of any government or department, agency, or instrumentality or public international organization; (d) any political party or official thereof; (e) any candidate for political office; or (f) any other person, individual or entity at the suggestion, request or direction or for the benefit of any of the above-described persons or entities.
13. Supplier Codes of Conduct: As a condition for the performance of this Agreement, Buyer requires Seller to comply with “Acco Brands Supplier Workplace Code of Conduct” and “Acco Brands Supplier Security Code of Conduct”, located at https://www.accobrands.com/supplier-workplace-page/ (hereinafter “Principles of Conduct”). Seller will conduct its business in accordance with the Principles of Conduct, which may be amended from time to time by Buyer who will give Seller full knowledge of the changes made. Seller must then determine whether it is able to comply with Buyer's requirements and must promptly notify it in writing. If Seller agrees to comply with Buyer's Principles of Conduct and other policies and procedures, those codes, policies and procedures will become Seller's obligations under this Agreement and will be incorporated into it by reference. The Seller and its subcontractors shall guarantee to Buyer's representatives and employees access to its facilities, records and employees, provided that they are pre-scheduled 02 (two) days in advance, to carry out the audits and commit to cooperate and fulfill orders that were made when the purchaser carried out the audits. Seller acknowledges that any failure by it or its suppliers to comply with the Principles of Conduct and codes of conduct or other policies and procedures arising from Buyer that Seller has agreed to comply with, may lead to immediate loss of business with Buyer and the immediate cancellation of this and other contracts in force. Seller and its subcontractors and suppliers shall grant all such representatives and agents access to their facilities, records and employees to conduct the audits, and Seller and its subcontractors and suppliers shall cooperate with all reasonable requests of the representatives and agents in the performance of the audits. The foregoing rights and obligations apply to all factories that manufacture products or components of the products. Seller acknowledges that its failure or the failure of its subcontractors or supplier to comply with the Codes of Conduct, as well as any codes of conduct or other compliance policies and procedures of Buyer's direct or indirect customers and licensors to which Seller has agreed to comply, will constitute a material breach, without a cure requirement, of this purchase order. Thereupon, Buyer shall be entitled to cancel any outstanding purchase order and immediately terminate any agreement between Buyer and Seller upon notice to Seller and without penalty or any liability of Buyer.
14. Intellectual Property; Ownership of Product Designs: Seller warrants that the products and the sale and use of the products will not infringe any Brazil or foreign patents, trademarks, copyrights, trade secrets or any other form of intellectual property (“Intellectual Property”), and Seller acknowledges that Buyer’s patents, trademarks, copyrights, trade secrets or any other form of intellectual property that Buyer provides to Seller are Buyer’s exclusive property and Seller disclaims all rights in them. All drawings, artwork, special products, materials, information or data furnished by Buyer and all Intellectual Property shall be used by Seller only to ensure the execution of this Purchase Order, shall be kept confidential pursuant to the terms of Section 15 below, and shall be returned promptly at Buyer’s request. Seller cannot copy, duplicate or otherwise use Buyer’s product designs and concepts or other confidential and proprietary information for any customer other than Buyer. Buyer may market, distribute and/or sell the products under its own trademarks and trade names. Buyer has the right to use any of Seller's marks, names, other trade identities, copyrighted works or other intellectual property to the extent that Seller has incorporated such property in the products or used such property in the manufacture of the products supplied by Seller to Buyer. If a Intellectual Property claim infringement is made against the products, then in addition to its indemnification obligations in Section 16, Seller shall do any of the following as requested by Buyer: (a) procure for Buyer the right to continue using the products, (b) replace the products with equivalent or better non-infringing products, or (c) modify the products, so that they become non-infringing, provided they perform in an equivalent or better manner.
15. Confidential Treatment: Buyer has disclosed or may disclose confidential and proprietary information to Seller relating to Buyer’s customers, suppliers, licensors, methods of operation, financial status, cost of materials, price of products and services, market plans, product designs and concepts, product information, operational policies, and other business and/or technical information. Seller shall hold all such information confidential and shall not use it for any purpose other than as required to perform its obligations under this purchase order, except as expressly authorized by Buyer in writing. The requirements of this Section 15 shall apply to all information received, whether orally or in writing, by Seller from Buyer or from an agent of Buyer, other than: (a) information that is known to Seller prior to its receipt from Buyer, (b) information that is generally known in the public through no fault of Seller, as of the date and to the extent that such information becomes generally known, and (c) information received by Seller from any third party not bound to Buyer to maintain such information confidential, as of the date and to the extent that such information is received from the third party. The requirements of this Section 15 shall survive for five years following the termination of any purchase order.
16. Indemnity: Seller shall at all times indemnify, defend and hold harmless Buyer and its affiliates, shareholders, directors, officers, employees, customers, agents and representatives, and its and their successors and assigns, from and against any and all suits, actions or legal proceedings of any kind, losses, damages, liabilities, costs, fines, penalties and expenses (including reasonable attorneys' fees and other costs of defending any action) ("Losses") which such indemnified parties may sustain or incur related to, arising out of, or in connection with (a) a breach of any representation, warranty or undertaking made by Seller in this purchase order or such parties' enforcement of this purchase order, (b) any and all actual or alleged claims for infringement of any Intellectual Property by reason of the design, manufacture, purchase, use or sale of the products, and (c) the labor relationship of Seller and its employees.
17. Insurance: While performing this purchase order and for two years after the products are delivered, Seller must maintain the policies of insurance described in this Section 17 at its sole expense, with such insurance placed with companies rated at least B VIII by the A.M. Best Company. If Seller’s insurance company does not meet the minimum rating, then Seller shall submit the insurance company’s information to Buyer for its written approval. Seller shall not deliver Products under this purchase order until all required insurance has been obtained and all required Certificates of Insurance or insurance policies and endorsements have been delivered to Buyer. Seller shall require any subcontractors performing under this purchase order to comply with this Section 17.
Commercial General Liability/Umbrella Insurance (Responsabilidade Civil) on an occurrence basis for bodily injury and property damage that includes coverage for premises/operations, contractual liability, products/completed operations, all independent contractors, subcontractors and their employees, and personal/advertising injury liability with limits of at least US $500,000 per occurrence for bodily injury, property damage and personal/advertising injury. This insurance must include duty to defend or Defense Cost (Gastos de Defensa) coverage. In addition, the policy will provide US $500,000 in general products/completed operations aggregate limits. The policy must be endorsed to name Buyer as an additional insured for all products, operations and completed operations in which the sole negligence of the additional insured is not excluded and include a waiver of subrogation in favor of Buyer. The additional insured and waiver of subrogation endorsements must be attached to the insurance certificate or insurance policy. Unless unavailable in Seller’s country, the insurance afforded by this policy must include a separate endorsement attached to the certificate or policy and provide that coverage for the additional insured is primary insurance and any other insurance maintained by or available to Buyer is non-contributory.
If Seller has a presence in the United States of America, Workers Compensation Insurance covering all statutory benefits in the states of operation where the work is to be performed and Employers’ Liability with limits of at least U$ $1 million per accident or disease, endorsed with a waiver of subrogation, in favor of Buyer is required. The waiver of subrogation and alternate employers’ endorsements must be attached to the certificate of insurance. In addition, the policy must include an alternate employer’s endorsement, showing Buyer in the schedule as the alternate employer. If Seller is self-employed with no other employees, a qualified self-insured, or not required to carry Workers’ Compensation, Seller must submit either a letter stating this or a copy of its certificate of self-insurance to Buyer, along with a waiver of subrogation issued in favor of Buyer.
If Seller is responsible for insurance and risk of loss pursuant to the delivery terms governing this purchase order, then Seller shall maintain Cargo Liability Insurance covering loss or damage to goods being transported with a limit of not less than US $100,000 per vehicle and not less than US $10 million per terminal, and naming Buyer as Loss Payee. Such insurance shall include a BMC 32 Endorsement in accordance with 49 CFR 387.301 if Seller is located in the United States of America. Any exclusions in such cargo liability insurance shall be reasonable having regard to the goods being transported. The terms of this insurance will be subject to Buyer’s prior approval.
The specified limits of insurance may be satisfied by any combination of primary, excess or umbrella liability insurance policies; provided, however, that the minimum limits of each underlying insurance coverage must be at least in an amount necessary to support the excess liability insurance coverage and must be endorsed to be as broad as the primary policy. The umbrella/excess policies must be identical or provide broader coverage than coverage under the applicable primary policies. The policies’ coverage territory must be worldwide. If available in Seller’s country, each policy shall expressly provide that it will not be subject to cancellation, reduction of coverage or material change without at least 30 days’ prior written notice to Buyer. Policy renewal dates should be noted, and new certificates or insurance policies must be provided 10 days prior to the expiration with endorsements to follow. Any losses within the deductible or self-insured retention amounts provided for under the above policies shall be borne by Seller or its sub-contractors.
Failure to obtain and maintain the required insurance shall constitute a breach of this purchase order permitting Buyer to cancel this purchase order and any agreement between Buyer and Supplier immediately upon notice and without penalty.
The insurance required under this Section 17 will not be limited by the indemnification language in Section 16 hereof or by any limitation placed on the indemnity provision as a matter of law. The terms of this Section 17 control over any contrary conditions implied or stated in any agreement signed between Buyer and Seller and in any transactional documents such as bills of lading.
18. Relationship between the Parties: Nothing in these Terms and Conditions or any purchase order shall be construed as creating an employer-employee relationship between the employees of Buyer and the Seller or the employees of the Seller and Buyer. Each party is solely and exclusively liable with respect to any third party obligations, as well as with its labor, administrative and tax obligations. Each party recognizes that the labor relationship with its personnel shall not give rise to a labor relationship between such personnel and the other party or its affiliates or subsidiaries. Therefore, any labor liability arising in connection with the employees of each party shall be the sole and exclusive liability of such party.
19. Cancellation, Suspension or Delay: Buyer shall have the right at any time without any liability to cancel, suspend or delay this purchase order in whole or in part by prior written notice to Seller. If Buyer cancels this purchase order, Seller shall then transfer to Buyer, in accordance with Buyer’s directions, all materials and all information accumulated, specifically prepared or acquired by Seller for use in the performance of this purchase order. The Seller shall, if directed by the Buyer and to the extent stated in the notice of cancellation, suspension or delay, make all efforts necessary to preserve the work in progress and to protect the products whether still at Seller’s manufacturing facilities or in transit to Buyer’s facilities. In the event of cancellation, Buyer shall pay to Seller: (a) the reasonable and documented costs incurred by Seller in accordance with this purchase order prior to Seller’s receipt of notice of cancellation, plus, (b) the reasonable and documented costs and charges incurred by Seller in winding up its activities under this purchase order prior to the effective cancellation date. Before Buyer resumes performance under any purchase order following a suspension or delay, Seller and Buyer shall negotiate in good faith on the adjustments, if any, which may be required in payments to Seller or in the price to avoid inequities either to Seller or Buyer.
20. Termination: If either party: (a) infringe any of the clauses or conditions agreed; (b) enter into extrajudicial recovery, judicial recovery, bankruptcy and/or insolvency; (c) practice illegal or immoral activity and/or action that may cause harm (financial or moral) to the other party, then the aggrieved party may cancel this Purchase Order, regardless of any indemnity or penalty
21. Changes: Buyer reserves the right to change any specifications, drawings, delivery dates, quantities and products covered by this purchase order, by notifying the Seller within a reasonable period of time. If such change would materially affect the price or delivery date, Buyer and Seller shall mutually agree upon an equitable adjustment in the price and/or delivery date to reflect the effect of such change; provided, however, the Parties shall formalize such amendment in writing. Seller shall not suspend performance of this purchase order while Buyer and Seller are in the process of making such changes and any related adjustments. Seller agrees that it will not make any process or manufacturing changes which might affect the performance, characteristics, reliability or life of the products, or substitute any materials without prior written approval of Buyer.
22. Governing Law; Jurisdiction: This purchase order and the performance hereunder shall be exclusively governed by, and construed in accordance with, the laws of Brazil. The parties elect the District Court of Bauru (SP), to the exclusion of any other, however privileged it may be, to resolve doubts or issues arising from these Terms and Conditions, as well as any Purchase Orders.
23. Assignment and Subcontracting: Buyer shall have the right, at its sole discretion, to assign this purchase order or any of its rights hereunder to any of its affiliates or to a successor-in-interest to all or substantially all of its business or assets. Seller may not assign or subcontract any of its obligations under this purchase order without the prior written consent of Buyer, which may be conditioned or denied in Buyers’ sole discretion, and any attempted assignment or transfer by Seller of its obligations under this purchase order shall be void and of no effect unless the prior written consent of Buyer has been obtained.
24. Waiver: The failure of Buyer to require strict compliance with or complete performance of any of Seller’s obligations shall not be construed as a waiver of any subsequent breach by Seller.
25. Severability: In the event that any words, phrase, clause, sentence or other provision of any purchase order shall violate any applicable statute, ordinance or rule of law in any jurisdiction in which it is used, such provision shall be ineffective to the extent of such violation without invalidating any other provision of any purchase order.
26. Prevailing Language: This Agreement may be translated into different languages for convenience. The parties agree that in the event of inconsistencies between the Portuguese version and any subsequent translation, the Portuguese version shall prevail.