Terms Of Service

Upfitting Services:

At Holman, We have built a strong brand and reputation for Our work truck upfitting services. We seek to treat all of our customers as long-term business partners, providing best-in-class upfitting with the most efficient and effective methods in the industry. These Terms clarify the terms of Our relationship with You. Holman’s acceptance of any order is expressly limited to Your acceptance of these terms.  Holman objects to any different or additional terms. If You are a party to a definitive written upfitting contract (“Definitive Contract”) duly executed by You and authorized representatives of Holman, then Your Definitive Contract governs. In these Terms, when We refer to “You” or “Your,” We mean the legal entity which houses Your business.

 

Your purchase of vehicles and upfit services (including equipment and components) from Us, and Your submission of orders for upfit service is Your acceptance of these Terms as binding. We may from time to time modify these Terms without prior notice to You. You will need to regularly review these Terms on Our website for modification. When these Terms are modified, the effective date shall be updated to the effective date of the modification.

 

  1. Your Order. We thank You for Your Order, which is not cancellable (in whole or in part) by You at any time later than 5 business days after the date on which We receive your Order, as shown by the electronic delivery time stamp in Our system, or other means. If You cancel Your Order after such 5 days, then You are responsible to pay for any equipment or materials We have ordered to fulfill Your Order. We reserve the right, at Our sole discretion, to return any ordered materials or equipment, and if We return such equipment or materials, You will be responsible for all restocking fees, administrative charges and storage fees. Price for Your Order is subject to adjustment by Auto Truck Group at any time. Auto Truck Group will provide Customer notice (which may occur via email, or telephone call) of any such adjustment to the Order Price.

 

  1. Payment Terms. We will invoice You for Your Invoiced amounts include sales and other taxes, and any other governmental charges, excluding taxes on Our income. Invoiced amounts also include shipping and freight. Our invoices are due for payment in full within 30 days after the invoice date. Amounts not paid when due, bear interest from the due date at 1/2% per month.

 

  1. Shipment and Delivery. We will arrange for shipment and if requested, We will engage Your designated carrier(s). We will ship to Your designated receiving point, and prices are FOB Our location, with risk of loss borne by You. For the avoidance of doubt, risk of loss to Your vehicle or equipment shall be borne by You at all times, even when Our property, or in possession of Our designee.

 

  1. Inspection and Acceptance of Goods. You will inspect the vehicles at delivery to Your receiving point, and You are deemed to have accepted the vehicles unless You notify Us to the contrary within 15 days after delivery. If You do notify Us, then We shall determine, in Our sole discretion, whether to repair the vehicle(s). If We choose to repair the vehicle(s), then We will either dispatch technicians to Your location(s) or direct You to transport the Vehicle(s) to a repair location designated by Us.  Repairs due to our negligence will be at Our expense.  Transportation charges and all other repairs will be Your expense. Repair is Your exclusive remedy for rejected Vehicles.

 

  1. Rights. If You fail to pay or otherwise breach these Terms, then We may suspend work on your order(s), without penalty, liability or obligation, and pursue all remedies available, including restocking fees and storage fees.

 

  1. Vehicle Storage. Vehicles on Our property, or our designee’s property, may be subject to administrative and/or storage fees in accordance with this Section 6.

 

6.1       Any Vehicle Order with total fees in an amount less than $1,200 will incur storage fees immediately upon Our receipt of the Vehicle.

6.2       For Vehicle Orders with fees totaling $1,200 or more, such Vehicle shall bear storage fees in the event the Vehicle remains on our property, or our designee’s property, for a period of time greater than 30 days following the completion of upfit services.

6.3       Unassigned Vehicles.  Any Vehicle on our property, or our designee’s property, that is unassigned, or does not have an accepted Order for upfit services associated with such Vehicle, shall be subject to vehicle storage and administrative fees upon Our receipt of the Vehicle.

6.4       Vehicle Storage Fees. The fees referenced in this Section 6 include an administrative fee equal to $75 per vehicle per month (beginning on the first day a Vehicle incurs the fees set forth in this Section), with an additional storage fee equal to $7 per vehicle per day.  The administrative fee and storage fee may be adjusted by Us at any time with notice to You.

 

  1. Confidential Information. We will not disclose Your non-public confidential information which is marked on its face as confidential or in an accompanying writing. We may present ideas and concepts in performing Our work, and We retain all right to use those ideas and concepts, and other know-how, in Our business. If You disclose Your confidential information to others, We do not have protect its confidentiality.

 

  1. Compliance with Laws. Both You and We will comply with all applicable laws.

 

  1. Warranty. Our Warranty to You is limited to Our Warranty as published on our website. ALL OTHER WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, ARE DISCLAIMED, INCLUDING ANY WARRANTIES OF: (i) MERCHANTABILITY; (ii) FITNESS FOR A PARTICULAR PURPOSE; (iii) TITLE; OR (iv) NON-INFRINGEMENT. Any indemnification or other liability We might owe is limited to claims of death, bodily injury or property damage caused solely by Our negligence.

 

  1. LIMITATION OF LIABILITY. NEITHER OF US IS LIABLE TO THE OTHER FOR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS), OR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES.

 

  1. Notices. Any notice required or permitted under these Terms to Us shall be in a writing, signed by the notifying party and delivered by hand or recognized overnight courier, or mailed by US mail, postage prepaid, registered or certified, return receipt requested, addressed to Us at Our address at 1420 Brewster Creek Boulevard, Bartlett, IL 60103. Notice is given when received as evidenced by the delivery receipt or if receipt is refused, the first date receipt is refused as evidenced by the delivery receipt. Notice to You shall be at Your address of record on Your most recent order.

 

  1. Severability. If any of these Terms is unenforceable in any jurisdiction, such unenforceability shall not affect the rest of these Terms. On a determination that any term is unenforceable, the court may modify these Terms to give effect to the original intent of the parties.

 

  1. Choice of Law and Venue. These Terms are governed by New Jersey law, without regard to its conflict of laws rules, and the UN Convention on the International Sale of Goods is excluded. Any litigation under these Terms shall be commenced and maintained in US District Court, District of New Jersey, sitting in Camden, New Jersey, or if jurisdiction is lacking, in New Jersey state court, sitting in Burlington County, New Jersey. Each party waives the right to trial by jury.

 

  1. Force Majeure. No party shall be liable to the other party, nor be deemed to have defaulted under these Terms for any failure or delay in performing any of these Terms (except for obligations to make payments), when and to the extent the failure or delay is caused by or results from acts beyond the impacted party’s reasonable control (which events may include natural disasters, hail, floods, or other weather events, epidemics, pandemics and other public health threats, embargoes, explosions, riots, wars or acts of invasion or terrorism, requirements of law, national or regional emergency, strikes, labor stoppages or slowdowns, or shortage of adequate power or transportation) (each, a “Force Majeure Event”). A party shall give the other party prompt written notice of any event or circumstance that is reasonably likely to result in a Force Majeure Event, and the anticipated duration of such Event. An affected party shall use all diligent efforts to end the Force Majeure Event, ensure that the effects of such Event are minimized, and resume full performance under these Terms.

 

  1. Waiver. No waiver by Holman of any of these Terms is effective unless in writing and signed by an authorized representative of Holman. No failure by Holman to exercise, or delay in exercising, any right or remedy arising from these Holman Terms is or shall be a waiver thereof. No single or partial exercise of any right or remedy hereunder limits any other or further exercise thereof or the exercise of any other right or remedy.
Vendors:

GENERAL TERMS AND CONDITIONS (“HOLMAN TERMS”) EFFECTIVE: AUGUST 1, 2022

At Auto Truck Group, LLC t/a Holman, or Holman Manufacturing & Distribution (including its subsidiaries, “Holman”), we treat our vendors as long-term business partners, and in that spirit, these Holman Terms clarify and govern the provision of products and services by you, to Holman.   These Holman Terms supersede all prior understandings and agreements, as well as any terms on a sales or service confirmation or invoice.  If you are a party to a definitive written contract (“Holman Definitive Contract”) duly executed by you and authorized representatives of Holman, then the Holman Definitive Contract governs.

 

In these Holman Terms, we sometimes refer to “you” or “your,” or “Vendor.”  By each reference, we mean the legal entity which houses your business, e.g. a corporation owned by you, or of which you are an employee or agent, or if you are not incorporated, you as a sole proprietor.

 

Your continued provision of goods and/or services (the “Deliverables”), and your acceptance of payment by Holman for Deliverables, signifies your acceptance of these Holman Terms and your representation that you have authority to bind the legal entity where you are employed or for which you act as agent or other representative.

 

Holman may from time to time modify these Holman Terms.  When these Holman Terms are modified, the effective date will be updated to the effective date of the modification.

 

If you are a Vendor in Canada, please be sure to review the final page of these Holman Terms.

 

  1. Deliverables.

 

1.1       Vendor shall provide the Deliverables as may be requested or authorized by Holman, within Vendor’s published lead time, or if no such published lead time exists, within a reasonable time.  Vendor shall perform all Deliverables in a workmanlike manner, in compliance with applicable law and regulation.  Vendor agrees that time is of the essence in providing the Deliverables.

 

1.2       If Vendor fails to provide the Deliverables to Holman’s satisfaction, including within an acceptable timeframe, then Holman may terminate the Deliverables on notice to Vendor, and Vendor shall be responsible for any costs incurred by Holman as a result of Vendor’s failure to perform.  As to the Deliverables, Holman reserves the rights to inspect, reject and require replacements.  Risk of loss to any tangible property, such as a Holman Client vehicle for which Vendor is providing Deliverables, shall be borne by Vendor until Deliverables are complete and acceptance is confirmed by Holman or the Holman Client to Vendor.

 

  1. Price. The price of the Deliverables billed to Holman shall be the price approved by Holman via the issuance of a Holman Purchase Order, and shall include all insurance, customs, duties, fees, and applicable taxes, including sales, use, excise, property, or value added taxes, and any other amounts required to be paid under any applicable law or regulation.  Acceptance of a Purchase Order shall bind the parties to the price stated on such Purchase Order.  Holman shall not be required to pay any amount invoiced by Vendor, in excess of the price on the applicable Purcahse Order.  The term “Purchase Order” means (a) a writing issued by Holman or (b) the confirmation of Vendor’s request for payment of specific Deliverables to Holman, made in a Holman system, in either case, accompanied by a Purchase Order number.  Notwithstanding any written agreement to the contrary between the parties, risk of loss to Deliverables shipped under these Holman Terms shall pass to Holman upon Holman’s receipt and acceptance of the Deliverables, and Vendor shall bear all risk of loss or damage regarding Deliverables until Holman’s receipt and acceptance of such Deliverables in accordance with these Holman Terms.

 

  1. Pricing is Competitive. Vendor represents, warrants and covenants that the Price of all Deliverables billed to Holman shall be competitive with the price billed by Vendor to others for substantially similar Deliverables in substantially similar quantities.

 

  1. Payment Terms. Vendor shall issue an invoice to Holman at or promptly after delivery.  Invoices shall be accurate and complete, and otherwise reasonably acceptable to Holman.  Invoices issued more than 60 days after the date Deliverables are delivered, or which are not accurate or complete, shall not be paid.  Unless otherwise agreed by Holman, Holman shall pay all invoiced amounts properly due to Vendor within 45 days after Holman’s receipt of such invoice, except for any amounts disputed by Holman in good faith. Payments shall be in local currency of the Holman location placing the Holman Purchase Order.  If Holman pays Vendor’s invoice within 15 business days of receipt, then Holman may deduct 2% of the total invoice amount, unless otherwise set forth on a Purchase Order. 

 

  1. Set off and Dispute Resolution. Without limiting any other rights of Holman, Holman reserves the right to set off any amount owing to Holman by Vendor against any amount payable by Holman to Vendor.  Should any dispute arise, the parties shall resolve all such disputes expeditiously. Vendor shall continue performing its obligations under applicable Holman Purchase Orders, notwithstanding any such dispute.  Acceptance of a Holman payment by Vendor is a waiver by Vendor of any rights and claims of Vendor related to that payment as of the date of acceptance.

 

  1. Anti-Trust Assignment. Vendor hereby assigns to Holman all right, title and interest in and to any claim under federal or state anti-trust, unfair competition, unfair trade practices or other law or regulation, relating to Deliverables provided by Vendor.  Vendor shall provide Holman with prompt notice of any such claim, and Vendor shall comply with Holman’s requests for information to evaluate and pursue such claim.

 

  1. Vendor Obligations. Vendor shall at all times comply with the following:

 

7.1       Licenses, Permits and Consents; Compliance with Laws.  Vendor shall obtain and maintain at all times all necessary licenses and permits, and comply with all applicable laws, rules and regulations.  Such laws include anti-corruption laws such as the US Foreign Corrupt Practices Act or UK Bribery Act of 2010, anti-money laundering laws such as the US Bank Secrecy Act, USA Patriot Act and requirements of the US Office of Foreign Assets Control (OFAC), laws prohibiting human trafficking, laws governing employees, employee compensation and workplace safety such as the US Immigration and Control Reform Act of 1986, US Fair Labor Standards Act and the US Occupational Health & Safety Act, and laws prohibiting discrimination such as Title VII of the US Civil Rights Act of 1964 and the US Americans with Disabilities Act of 1990, laws prohibiting unfair or deceptive trade practices such as the US Federal Trade Commission Act, and laws governing customs, export and import, such as the US Export Control Act.

 

7.2       US Federal Government Requirements.  If and to the extent Vendor’s Deliverables are provided in connection with a contract with the US Federal Government or a US Federal Government Contractor, and Federal government flow-down requirements apply, then Vendor shall comply with such requirements.  Examples of such requirements include the Equal Opportunity Clause (41 CFR 60-§1.4(a)); Equal Opportunity Clause for Special Disabled Veterans, Veterans of the Vietnam Era, Recently Separated Veterans, and Other Protected Veterans (41 CFR 60-§250.5(a)); Equal Opportunity Clause for Disabled Veterans, Recently Separated Veterans, Other Protected Veterans and Armed Forces Service Medal Veterans (41 CFR §60-300.5(a)); Equal Opportunity Clause for Workers with Disabilities (41 CFR §60-741.5(a)); Employee Rights Under the National Labor Relations Act (29 CFR §471, Appendix A to Subpart A); and the Certification of Nonsegregated Facilities Clause (41 CFR § 60-1.8).

 

7.3       Holman Policy and Procedure.  Vendor shall comply with all policies and procedures adopted by Holman from time to time, including information security and cybersecurity policies and procedures.  Copies of all such policies and procedures are available from Holman on request.  From time to time, Holman may develop policies and procedures designed to increase the marketability of Holman’s Deliverables to Holman Clients, which may have the effect of creating additional opportunities for Holman vendors, such as Vendor.  Vendor agrees to participate, if requested by Holman, in such policies and procedures, so long as Holman does not require the payment of a participation fee or membership subscription for such participation.

 

7.4       Accurate Books and Records; Review.  Vendor shall maintain complete and accurate records relating to the Deliverables, including records of the time spent and materials used in such form as Holman shall approve, in accordance with Vendor’s document retention policy, but in any event, at least 7 years. Upon Holman’s request, Vendor shall allow Holman to inspect such records and other Vendor information to confirm compliance with these Holman Terms, and Vendor shall certify as to Vendor’s compliance with these Holman Terms. Vendor represents, warrants and covenants that Vendor’s payment requests, and all other information provided by Vendor is true, correct and complete in all respects.

 

7.5       Subcontractors.  Vendor may engage subcontractors, suppliers and other third parties to assist Vendor in providing the Deliverables, and Vendor shall ensure and hereby guarantees that all such third parties shall comply with these Holman Terms.  Vendor shall pay all of its employees, contractors, subcontractors and suppliers the amounts due them, when due and Vendor shall defend, indemnify and hold Holman harmless from any lien or claim from such persons or entities, whether for non-payment by Vendor or otherwise.

 

7.6       Vendor Employees, Equipment and Property.  Vendor shall ensure that all persons, whether employees, agents, or subcontractors, or others acting for or on behalf of Vendor, are properly licensed, certified or accredited as required by applicable law and are qualified to provide the Deliverables.  Vendor shall ensure that all Vendor’s equipment used in providing Deliverables is in good working order and complies with applicable law and regulation.  Vendor shall ensure that any property of Holman, or property owned by a third party that comes into Vendor’s care, custody or control through Holman, is not lost, stolen or damaged, and remains in good working order (or if brought to Vendor for maintenance, repair or overhaul, is properly maintained, repaired or overhauled to good working order and to a condition fit for the intended use of such property), normal wear and tear excepted.

 

7.7       Taxes.  Vendor shall comply with all national, state or provincial, and local tax laws, rules and regulations, including sales and use taxes, value added taxes, gross receipts taxes, income taxes, property taxes or any other assessment or payment required by any national, state or provincial or local tax authority or other governmental agency or authority.  Vendor shall timely file all returns and timely pay of all amounts due.  If the discount deducted by Holman from Vendor’s total invoice amount under Section 4 is held to be subject to any tax payable by Holman, Holman may deduct such tax from Vendor’s invoice, and from subsequent invoices.

 

  1. Warranties.  Vendor warrants to Holman that, for a period of 12 months from completion, or longer as may be provided by Vendor or the manufacturer, the Deliverables: (i) shall be free from defects in workmanship, material and design, (ii) shall comply with all applicable laws, rules and regulations, (iii) shall be fit for their intended purpose, (iv) shall be merchantable, (v) shall be free and clear of all liens and other encumbrances, and (vi) shall be non-infringing.  Vendor further warrants to Holman that, to the extent any services as provided as a part of any Deliverable, such service: (a) shall be of a professional quality, (b) shall be performed and provided by fully trained, certified, suitably qualified, capable and competent personnel, (c) shall conform to generally accepted professional practices in Vendor’s field, and (d) shall be performed in a workmanlike and ethical manner.     Vendor agrees that all representations and warranties set forth in these Holman Terms are cumulative and in addition to any other warranty provided by law or equity.  If Holman gives Vendor notice of noncompliance pursuant to this Section, Vendor shall, at its own cost and expense, within 30 days (A) replace or repair any defective or nonconforming goods provided as part of the Deliverables, and (B) repair or re-perform the applicable Deliverables.

 

  1. General Indemnification. To the maximum extent permitted by law, Vendor shall defend, indemnify and hold harmless Holman (including its affiliates), the applicable Holman Client, and their respective directors, officers, employees, shareholders, agents and assigns (collectively, “Indemnitees“) from and against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses“) arising out of or occurring in connection with the Deliverables purchased from or provided by Vendor, or any act or omission of Vendor (including any Vendor subcontractor, supplier or other third party) or Vendor’s negligence, gross negligence, willful misconduct or breach of these Holman Terms. Vendor shall not enter into any settlement without Holman’s prior written consent.

 

  1. Insurance. For purposes of this Section 10 and 11 only, “Holman” refers to Holman and the Indemnitees described in Section 9, collectively. Vendor shall, at its own expense, obtain and maintain with financially sound and reputable insurers licensed to do business in the state where any Deliverables are provided, with an AM Best rating and Financial Size Category of at least “A-, VII” or better or otherwise reasonably satisfactory to Holman, the following coverages in at least the amounts stated:

 

10.1      Worker’s Compensation. Worker’s compensation coverage as required by applicable law.

 

10.2      Commercial General Liability. Commercial General Liability Insurance on an “occurrence” basis, including coverage for bodily injury, property damage, personal injury and advertising injury, ongoing operations, products-completed operations and liability assumed under an insured contract, with limits no less than $2,000,000 per occurrence.  If a general aggregate limit applies, the general aggregate limit shall be twice the required occurrence limit.

 

10.3      Business Automobile Liability. Business automobile liability covering hired and non-owned vehicles with limits no less than $1,000,000 combined single limit per occurrence for bodily injury and property damage.

 

10.4      Garage Liability. Where Vendor provides maintenance or repair services, Garage Liability insurance with limits no less than $1,000,000 per occurrence may be provided in lieu of coverages required in Sections 10.2 and 10.3, and Garagekeepers Liability insurance covering damage to property in Vendor’s care, custody or control.

 

10.5      Employer’s Liability. Employer’s liability insurance with a limit of no less than $1,000,000 per accident for bodily injury or disease.

 

10.6      Umbrella / Excess Liability. Umbrella/Excess liability insurance on the above commercial general liability insurance, business automobile liability, garage liability insurance (if applicable) and employer’s liability insurance with minimum limits of at least $5,000,000 per occurrence and $5,000,000 in the aggregate.

 

10.7      Ability to Combine Primary and Excess Coverage. The minimum limits of insurance required by this Section 10 may be satisfied by a combination of primary and excess coverage.

 

  1. Additional Insurance Coverages. Vendor shall also obtain and maintain the following:

 

11.1      Professional Liability. Where Vendor provides any professional services, Vendor shall obtain and maintain Professional Liability (Errors and Omissions) Insurance written on a “claims-made” basis with a limit no less than $1,000,000 per occurrence.  If, when providing Deliverables to Holman, Vendor will have access to any personal data of any Holman employees or any employees of any Holman Clients, then Vendor shall ensure that such insurance includes cyber liability and data breach coverages.

 

11.2      Holman as an Additional Insured. Holman and all other Indemnitees (the “Holman Parties”) shall be included as additional insureds on Vendor’s insurance policies for liability arising out of Vendor’s Deliverables and any other services or work performed by Vendor and its subcontractors, both for ongoing operations and completed operations, for a period of 24 months after completion of Deliverables or other services or work.  Vendor specifically assumes, and agrees that Vendor’s policies shall accept tort liability of the Holman Parties, including liability caused by the negligence of any of the Holman Parties, even where solely negligent.

 

11.3      Vendor Coverage is Primary; Certificates of Insurance. Vendor’s additional insured coverage shall be primary and non-contributory, irrespective of any other insurance or self-insurance programs that may be carried by Holman or any other Indemnitee.  When requested, Vendor shall provide Holman with an insurance certificate evidencing all required insurance coverages, in a form reasonably acceptable to Holman. Such insurance certificates shall identify any applicable self-insured retentions or deductibles, which shall be the sole responsibility of Vendor.  The insurance certificates shall provide that Holman shall receive at least 30 days’ prior written notice of any cancellation or amendment of any insurance required by this Section.  Vendor shall also provide copies of written endorsements that identify Holman, its affiliates and their directors, officers, employees, shareholders, agents and assigns as additional insureds for each of the insurance policies procured pursuant to this Section.

 

11.4      Coverage Required is Not Limiting. Vendor agrees that the insurance required by these Holman Terms does not limit Vendor’s liability to Holman under these Holman Terms, including Vendor’s duty to defend, indemnify and hold Holman and the other Indemnitees harmless.  If Vendor maintains higher limits than the minimums shown above, Holman shall be entitled to coverage for the higher limits maintained by Vendor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to Vendor.

 

11.5      Failure to Maintain Coverage. Vendor’s failure, for any reason, to maintain any of the insurance coverages required by these Holman Terms is a material breach of contract.  Holman, at its sole option, may terminate all Holman Purchase Orders and obtain damages from Vendor resulting from said breach.  Alternatively, Holman may purchase such required insurance coverage, and without further notice to Vendor, Holman may deduct from sums due to Vendor any premium costs advanced by Holman for such insurance.

 

11.6      Subrogation Waived. Vendor shall require its insurer to waive all rights of subrogation against Holman and Holman’s insurers.

 

11.7      Electronic Collection of Insurance Certificates. Should Holman institute a process for the electronic collection, by Holman or its designated third party provider, of insurance certificates from suppliers, Vendor shall comply with Holman’s instructions and adopt such process, at Vendor’s cost.

 

  1. Termination. If Vendor has not complied with any of these Holman Terms, in whole or in part, in addition to any other remedies of Holman under these Holman Terms, Holman may terminate all Holman Purchase Orders with immediate effect upon written notice to Vendor, either before or after Vendor’s delivery of the Deliverables. During the time period beginning upon the issuance of a Purchase Order, and delivery, Holman may cancel a Purchase Order, at will and for convenience, with notice to Vendor. In the event of such cancellation by Holman prior to delivery, Vendor and Holman shall work together in good faith to determine reasonable compensation owed to Vendor due to such cancellation.  Notwithstanding the foregoing, if Vendor does not deliver or perform within a period of time equivalent to twice the published lead time or delivery date set forth on a Purcahse Order, Holman may cancel such Purchase Order. For example, if the delivery date for a Deliverable is 3 weeks, and Vendor has not delivered after 6 weeks from the initial Purchase Order, Holman may terminate such Purchase Order at will, with no expense owed to Vendor. Further, if Vendor becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then Holman may terminate all Holman Purchase Orders upon written notice to Vendor. If Holman terminates any or all Holman Purchase Orders for any reason, Vendor’s sole and exclusive remedy is payment for the Deliverables accepted by Holman prior to the termination.  In no event shall any expiration or termination of any Holman Purchase Orders excuse either party from any breach or violation of these Holman Terms and full legal and equitable remedies shall remain available therefor, nor shall it excuse either party from making any payment due under Holman Purchase Orders completed prior to the date of termination.  Sections 10, 11, 12, 13, 16, 19 and 20 shall survive any termination of these Holman Terms, the completion of any Purchase Order, or any payment therefor.

 

  1. Waiver. No waiver by Holman of any of the provisions of these Holman Terms is effective unless explicitly set forth in writing and signed by a duly authorized officer of Holman. No failure by Holman to exercise, or delay in exercising, any right, remedy, power or privilege arising from these Holman Terms operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

 

  1. Confidential Information. All non-public information of Holman, including specifications, samples, designs, plans, drawings, documents, business operations, customer or supplier lists, pricing, discounts or rebates and other data disclosed by or on behalf of Holman to Vendor, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” is and shall be and remain confidential and proprietary information of Holman, shall be used by Vendor solely for the purpose of performing Vendor’s obligations under these Holman Terms, and may not be disclosed to any third party without Holman’s prior written consent. Upon Holman’s request, Vendor shall promptly return all documents and other materials received from Holman. Holman shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Vendor at the time of disclosure and not subject to a confidentiality undertaking; or (c) rightfully obtained by Vendor on a non-confidential basis from a third party. Vendor specifically agrees that all data compiled or reported by Vendor related to Deliverables or any other work performed by Holman shall be owned exclusively by Holman.

 

  1. Force Majeure. Neither party shall be liable to the other for any delay or failure in performing its obligations under these Holman Terms to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party’s fault or negligence, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable (each, a “Force Majeure Event“). Force Majeure Events include acts of God or the public enemy, government restrictions, floods, fire, earthquakes, explosion, epidemic, war, terrorist acts, riots, strike, embargoes or industrial disturbances. Vendor’s economic hardship or changes in market conditions are not Force Majeure Events. Vendor shall use all diligent efforts to end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized and resume performance under these Holman Terms.  If a Force Majeure Event prevents Vendor from performing under these Holman Terms for a period of more than 30 days, Holman may terminate any pending Holman Purchase Orders immediately by written notice to Vendor.

 

  1. Assignment and Amendment. Vendor shall not assign, transfer, delegate or subcontract any of its rights or obligations under these Holman Terms without the prior written consent of Holman. Any purported assignment, transfer or delegation in violation of this Section shall be null and void. Holman may at any time assign or transfer any or all of its rights or obligations under these Holman Terms without Vendor’s prior written consent to any affiliate. These Holman Terms may only be amended or modified in a writing executed by Holman, or emailed by Holman to Vendor at Vendor’s email address as permitted by Section 21.

 

  1. Relationship of the Parties. The parties are independent contractors. Nothing in these Holman Terms creates any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties. Neither party has authority to bind the other party in any manner whatsoever. These Holman Terms are for the sole benefit of the parties hereto and their respective successors and permitted assigns, provided that the General Indemnification is also for the benefit of the Indemnitees.

 

  1. Governing Law. These Holman Terms are governed by the internal laws of the State of New Jersey, without regard to its choice of laws rules. The UN Convention on the International Sale of Goods is expressly excluded. Any litigation relating to these Holman Terms or any Deliverables shall be commenced and maintained in the US District Court, District of New Jersey, sitting in Camden, New Jersey, or if jurisdiction is lacking, in New Jersey state court, sitting in Burlington County, New Jersey, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Each party waives the right to a jury trial.  Vendor expressly waives any objection to personal jurisdiction or venue.

 

  1. Notices. All notices and other communications hereunder (each, a “Notice“) shall be in writing and if to Holman, shall be addressed to 1420 Brewster Creek Blvd. Bartlett, IL 60103, Attention: Accounts Payable, or if to Vendor, to Vendor’s address of record in Holman’s systems, or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by hand or nationally recognized overnight courier, facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, first class postage prepaid). Holman may give notice to Vendor at Vendor’s email address on Holman’s systems. Except as otherwise provided in these Holman Terms, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with this Section.

 

  1. Severability. If any term or provision of these Holman Terms should be found to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Holman Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.

 

  1. Meanings. The words “include” or “including”, when used in these Holman Terms, mean “include but are not limited to” and “including but not limited to.”

 

  1. Conflicts. Absent a Holman Definitive Contract, these Holman Terms govern the relationship of Vendor and Holman, as to all Deliverables.  All conflicting or additional terms in any invoice, confirmation or other writing are expressly superseded.

CANADIAN RIDER TO GENERAL TERMS AND CONDITIONS (“Holman TERMS”) EFFECTIVE: DECEMBER 1, 2018

For Vendors in Canada, the above Holman Terms shall apply with the following adjustments, commencing on October 1, 2017:

 

The last sentence of Section 4 is hereby deleted in its entirety and the replaced with the following:

 

If Holman pays Vendor’s invoice within 15 business days of receipt, then Holman may charge a fee of 2% of the total invoice amount, plus applicable taxes, e.g. GST / HST and any provincial sales tax.

 

Section 8.1 of the Holman Terms is hereby deleted in its entirety and replaced with the following:

8.1       Licenses, Permits and Consents; Compliance with Laws. Vendor shall obtain and maintain at all times all necessary licenses and permits, and comply with all applicable federal, provincial, territorial and local laws, rules and regulations. Without limiting the generality of the foregoing, such laws include anti-corruption laws such as the Corruption of Foreign Public Officials Act (Canada), anti-money laundering laws such as the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), laws prohibiting human trafficking, laws governing employees, employee compensation and workplace safety including all applicable provincial or territorial employment standards, workers’ compensation and occupational health and safety legislation, laws prohibiting discrimination such as the Canadian Human Rights Act (Canada) and all applicable provincial or territorial human rights legislation, any applicable provincial and territorial laws prohibiting unfair or deceptive trade practices, and laws governing customs, export and import, such as the Customs Act (Canada).

The first paragraph of Section 11 of the Holman Terms is hereby deleted in its entirety and replaced with the following:

  1. Insurance. Vendor shall, as its own expense, obtain and maintain the following coverages in at least the amounts stated with a company (i) approved by Holman; (ii) licensed to do business in the province or territory where any Deliverables are provided; and (iii) ordinarily engaged in the business of insuring against the risks described herein: