Doing Business With TOPS Products LLC
Thank you for your interest in doing business with TOPS Products LLC. If you've received a purchase order, you can click on the links below to read our terms and conditions (including general and environmental conditions).
If you're a paper roll supplier, you can help us manage a more efficient supply chain by reviewing the guidelines below for providing paper rolls to TOPS Products LLC.
CONTRACTOR EHS PROGRAM
Read Contractor Environmental Health & Safety Program Attachments
TOPS Products LLC Contractor Safety
D-1 SPECIFICATIONS
Terms for Development and Professional Services
(Revised December 8,2008) revised December 2020 for TOPS Products LLC
- Contract Documents
These Specifications constitute an integral part of the Services Agreement between TOPS Products LLC and Supplier ("Services Agreement")in which they are referenced, to the extent Supplier provides any Professional Services (as hereinafter defined) to TOPS Products LLC.
- Definitions
As used in these Specifications D-1, the terms listed below shall have the following definitions. Terms not otherwise defined herein shall have the meanings set forth in the Definitions section of the Services Agreement.
"Acceptance Certificate" means a written certificate in a form to be provided by TOPS Products LLC, that Supplier shall prepare and TOPS Products LLC shall sign to evidence TOPS Products LLC's acceptance of Deliverables.
"Acceptance Date" means the date on which TOPS Products LLC delivers the Acceptance Certificate or is otherwise deemed to have accepted such Deliverables.
"Acceptance Test" means any test specified in the Order which will be used to demonstrate that the Deliverables perform the functions and operate with the capabilities described in the Documentation or Specifications.
"Deliverables" means the computer programs, firmware, schematics, flowcharts, drawings, specifications, Documentation, reports, recommendations or other writings, information or material embodied in a tangible medium that are to be provided by Supplier pursuant to the Services Agreement.
"Documentation" means the visually readable English language materials provided by Supplier that are relevant to the Deliverables.
"Intellectual Property Right" means a patent, copyright, trademark, trade secret, registered design, industrial design, design right, utility model or other intellectual property right recognized by statute or at common law.
"Professional Services" means all professional services to be provided by Supplier pursuant to an Order and this Agreement, including, but not limited to, development, consulting, analysis, design, computer programming, installation, testing, conversion, implementation, training, technical writing and any other services necessary or desirable to successfully install and operate the Deliverables or complete the tasks specified in the Order.
"Specifications" means the specifications referenced in and attached to the Order. The Specifications shall include, but not be limited to, tasks to be completed, functions to be performed, user operational instructions, descriptions, tolerances, capabilities and physical requirements of a Deliverable.
"Warranty Period" means that period of time commencing on the Acceptance Date and continuing for one (1) year thereafter.
- Project Management
Each party shall appoint a project manager who shall be responsible for Coordinating its activities with respect to this Agreement. Each party shall direct all performance-related inquiries to the project manager of the other party. Each party's project manager shall have the authority to act on its behalf of in all matters concerning the technical details of the Order. To change the scope of the Order, TOPS Products LLC's project manager shall provide a written request detailing the desired changes to Supplier's project manager. Supplier's project manager shall provide the TOPS Products LLC project manager with an estimate of the cost of such change and impact on the schedule. Supplier shall continue performing pursuant to the previously agreed-upon Order until the parties agree in writing on the applicable changes in scope of the Order, scheduling, and fees.
- Scope Of Services
The Professional Services or Deliverables to be provided by Supplier under the Service Agreement shall be described in an Order issued by TOPS Products LLC and accepted by Supplier. If a task specification is issued in connection with an Order, it will reference the Service Agreement and such Order and will describe the work to be done, deliverables, ownership and confidentiality, TOPS Products LLC and Supplier responsibilities, scheduled completion, criteria for acceptance and cost/milestone deliverable payments. A task specification or Order may not be changed or be terminated orally, but may be modified at any time by an instrument in writing signed by authorized representatives of both parties hereto.
- Interviews/Screening
TOPS Products LLC shall have the right to interview and accept or reject any personnel provided by Supplier prior to assignment to TOPS Products LLC, it being understood that such interviews are for the purpose of TOPS Products LLC confirming the individual's ability to perform the technical aspects of the assignment. As a condition to any engagement involving work to be performed at a Site, Supplier personnel may be required to pass a drug screening test administered by TOPS Products LLC.
- Key Resources
An Order may specify a key employee, subcontractor and agent resources ("Key Resources") committed to the performance of Supplier's obligations. Supplier shall not change Key Resources or assign Key Resources to any other activities which are not directly associated with the performance of its obligations to TOPS Products LLC without the prior written consent of TOPS Products LLC.
- Non-Solicitation
Neither party shall recruit or hire any personnel of the other who are or have been assigned to perform any Professional Services in connection with any Order entered into between the parties pursuant to the Services Agreement until one (1) year after completion of the Professional Services, except that TOPS Products LLC shall have the right to recruit and hire any employee or consultant of Supplier if TOPS Products LLC terminates this Agreement or an Order for cause as specified in the Services Agreement.
- Delivery
Supplier acknowledges that time is of the essence for delivery of all Deliverables and completion of all Professional Services. Supplier shall deliver all Deliverables and complete all Professional Services on or before the scheduled delivery date specified on the Order. No Deliverable shall be deemed delivered and no Professional Services shall be deemed to be completed unless and until all Deliverables have been delivered and all Professional Services have been completed in their entirety in accordance with the requirements set forth in the Services Agreement, these D-1 Specifications and the Order. Any delays in delivery of Deliverables or completion of Professional Services shall be reported by Supplier to TOPS Products LLC immediately as they become known to Supplier.
- Acceptance
The Deliverables shall be deemed accepted upon their successful installation at TOPS Products LLC's satisfaction that the capabilities and performance of the Deliverables conform to the Documentation and Specifications.
When so specified on an Order, Supplier will demonstrate to TOPS Products LLC's satisfaction that the Deliverables meet the Acceptance Test criteria. In such case, if the Deliverables pass the Acceptance Test and otherwise conform to the Documentation and Specifications, Supplier shall provide TOPS Products LLC with an Acceptance Certificate. The Deliverables shall be deemed accepted when TOPS Products LLC signs the Acceptance Certificate. If TOPS Products LLC does not sign the Acceptance Certificate, TOPS Products LLC shall specify to Supplier in writing, within fifteen (15) working days (Monday through Friday, excluding holidays) after the Supplier has delivered the Acceptance Certificate, the deficiencies in the Deliverables which caused TOPS Products LLC not to sign the Acceptance Certificate. If such notification of the deficiencies is not provided within fifteen (15) working days, the Deliverables shall be deemed accepted.
If TOPS Products LLC specifies a deficiency as set forth above:
Supplier will proceed to correct the deficiency. When the deficiency is corrected to TOPS Products LLC's satisfaction, TOPS Products LLC will sign the Acceptance Certificate.
In the event that Supplier determines that a deficiency is not due to any Deliverable, then Supplier shall provide in writing the basis for this determination. If the deficiency is not due to a Deliverable, then TOPS Products LLC shall sign the Acceptance Certificate.
If within ninety (90) days after delivery there is no acceptance of the Deliverables due to deficiencies in or caused by one or more Deliverables or if Supplier and TOPS Products LLC do not agree whether the deficiency is due to a Deliverable, TOPS Products LLC may, at its option, notify Supplier in writing that the Deliverables have not been accepted and that the Order is canceled. In such event Supplier shall immediately refund all monies paid by TOPS Products LLC to Supplier for such Deliverables. TOPS Products LLC shall retain the right to continued use of any Deliverable required for the non-disrupted continuation of its business until, but not after the earlier of:
twelve (12) months after termination of the Order, or
such time as TOPS Products LLC has, at its convenience, successfully installed a suitable replacement for said Deliverable(s).
- Title and Possession
All Deliverables developed in connection with any Order, either by TOPS Products LLC or jointly by TOPS Products LLC and Supplier, or by Supplier pursuant to Specifications or instructions provided by TOPS Products LLC shall be owned by and confidential to the party identified in the Order. In the absence of any such identification in an Order, Deliverables shall be deemed to be owned by and confidential to TOPS Products LLC.
Deliverables that are owned by and confidential to TOPS Products LLC shall be considered a works made for hire belonging exclusively to TOPS Products LLC with TOPS Products LLC having the right to obtain and to hold in its own name patents, copyrights, registrations, or such other protection as may be appropriate to the subject matter and any extension or renewals thereof. To the extent that any such Deliverables are not subject to the United States Copyright Act or do not otherwise qualify for work-made-for-hire treatment under such Act, Supplier agrees to assign and does hereby assign all Intellectual Property Rights in such Deliverables to TOPS Products LLC and shall cause its employees to waive all moral rights. Supplier agrees to give TOPS Products LLC and any other person designated by TOPS Products LLC, at TOPS Products LLC's expense, all assistance reasonably required to perfect its rights pursuant to this Section. Supplier will not, nor will it permit its Employees, to sell, transfer, assign, plagiarize or otherwise disclose such Deliverables to any third party.
Supplier agrees that in connection with any work performed for TOPS Products LLC, it will not collaborate in the creation of patentable or copyrightable works with any person (other than TOPS Products LLC employees or other persons who have signed agreements consistent with the provisions of this Section) without TOPS Products LLC's prior written consent.
Supplier shall, at its sole cost and expense, release, defend at TOPS Products LLC's option, indemnify and hold harmless TOPS Products LLC, its directors, officers, agents, employees, and shareholders from and against all claims, demands, disputes, complaints, causes of action, suits, losses and damages (including attorneys' fees) of any kind to the extent they in any way relate to or arise, in whole or in part, due to the acts or omissions to act of Supplier, its subcontractors, Suppliers, or agents or the employees of any thereof, in the performance of the Contract or any breach or default thereunder.
There are no restrictions on TOPS Products LLC's right to make, have made, use, modify, create derivative works of, reproduce, have reproduced, perform, display, sell and distribute Deliverables that are owned by TOPS Products LLC.
With respect to any TOPS Products LLC-owned software, Supplier agrees to deliver to TOPS Products LLC the source code (including flowcharts, compile listings and comments sufficient to enable a reasonably skilled programmer to understand the function and operation of the computer programs) at no additional charge. W hen TOPS Products LLC shall come into possession of the computer program source code in accordance with this Agreement, TOPS Products LLC shall thereafter have the absolute right to modify the source code to perform any functions that TOPS Products LLC deems necessary or desirable. TOPS Products LLC agrees that any modifications to the computer programs may void any applicable warranties that may be in effect.
- Professional Services and Deliverables Warranty
Supplier warrants during the Warranty Period that all Professional Services and Deliverables provided under the Services Agreement will be performed to the best of its, and its employees', agents', and contractors' ability and in a professional manner, and that Deliverables will conform to and perform in accordance with the relevant Specifications and with all associated Documentation. Supplier's obligation under this warranty is to re-perform any Professional Services and correct and adjust any portions of the Deliverables which do not comply with this warranty, at no additional cost to TOPS Products LLC. After the W arranty Period, (i) any TOPS Products LLC requested corrections and modifications shall be furnished on a time and materials basis in accordance with the Agreement at the then current charges therefor, and pursuant to a separately negotiated maintenance agreement. This warranty is in addition to all other warranties expressed or implied, and other obligations of Supplier.
- Subcontracts
Supplier shall include in every subcontract provisions consistent with those contained herein. Prior written approval of each subcontractor must be obtained from the appropriate TOPS Products LLC Supply Chain Management representative, but such approval shall not relieve Supplier of responsibility for the subcontractor's performance of the work.
G-1 SPECIFICATIONS
(Revised November 2015) revised Decmeber 2020 for TOPS Products LLC
Contract Documents
These General Conditions apply to any manufacturing, installation or construction work performed by Supplier on TOPS Products LLC property (the "Work") and are an integral part of the contract between TOPS Products LLC and Supplier, together with all other specifications, plans, drawings, exhibits and addenda referenced in the contract (collectively, the "Agreement"). Supplier shall bring to the attention of the appropriate TOPS Products LLC Global Strategic Sourcing representative ("GSS") any conflict between the drawings and the specifications before proceeding with that particular phase of the job. The written specifications will take precedence over the drawings in the event of any conflict between those documents, unless otherwise approved by GSS. Supplier shall obligate all subcontractors engaged by Supplier to be bound by these General Conditions but nothing herein shall be construed to create a contractual relationship between any such subcontractor and TOPS Products LLC.Materials and Workmanship
All materials, parts, components and articles incorporated in the Work shall, unless otherwise specifically provided in the Agreement, be new and of the best available grade and quality for the purpose used. All Work shall be done in a thoroughly first-class and workmanlike manner, shall be neat and orderly, and shall conform to the best trade practices generally accepted in the industry. Supplier shall verify all dimensions, measurements, grades, levels and conditions at the work site, become fully acquainted with the conditions relating to the Work and fully understand the facilities, difficulties and restrictions attending to execution of the Work.Permits
Supplier shall comply with all applicable laws, ordinances, rules and regulations of governmental agencies and shall procure and pay for all permits (except pollution control permits), certificates of inspections and licenses required by any such law, ordinance, rules and regulations in the performance of the Work. Any required federal, state or local pollution control permits shall be the responsibility of TOPS Products LLC.Installation Coordinator and Supplier's Responsibility
TOPS Products LLC shall designate one of its employees as its Installation Coordinator with respect to the Work covered hereunder and shall advise Supplier of such designation. The Installation Coordinator shall be Supplier's principal contact and shall coordinate the project and assist Supplier in obtaining the various TOPS Products LLC approvals required by the Agreement. Supplier shall not, under any circumstances, provide labor or material without the prior approval of the Installation Coordinator regardless of the source of the request. The Installation Coordinator has sole responsibility for the authorization of all "extras" and W ork outside the scope of the Agreement. Supplier shall refer such requests for such additional Work to the Installation Coordinator, when such requests come from other TOPS Products LLC personnel. For matters outside the responsibility of the Installation Coordinator, the GSS Buyer designated on TOPS Products LLC's Purchase Order will remain the commercial/contractual contact between TOPS Products LLC and Supplier. Notwithstanding the above, Supplier understands it has the full responsibility to supervise and direct the Work, using Supplier's best skill and attention.Supplier shall be solely responsible for and have control over the means, methods, techniques, sequences and procedures, and for coordinating all portions, of the Work.
Insurance
Before commencing Work, Supplier shall assure it meets the following insurance requirements:Required Coverage
Supplier agrees to maintain the following types of insurance coverage during the term of this Agreement with insurance carriers rated "A VII" or better by the then current edition of Best's Insurance Reports published by A.M. Best Company and licensed to do business in the state(s) in which the Products are produced and the Services are performed:Workers' Compensation insurance as required by law in the state(s) where the Products are produced and the Services are being performed, including a waiver of subrogation in favor of TOPS Products LLC and, if Supplier is an employment agency and temporary labor service provider, an Alternate Employer's Endorsement;
Employers' Liability and Occupational Disease insurance with limits of $500,000 per occurrence;
Commercial General Liability insurance with combined single limits of not less than $2,000,000 per occurrence, including coverage for (1) premises and operations liability; (2) broad form property damage including damage to property in Supplier's care, custody or control; (3) blanket contractual liability; (4) personal and advertising injury; and (5) products and completed operations; If the Supplier is providing catering services, Supplier shall carry Liquor Liability insurance in addition to the General Liability coverage. If the Supplier is providing security services, Supplier shall include an Assault & Battery extension to the General Liability coverage,
If automobiles are used in connection with work to be performed hereunder, Commercial Automobile Liability insurance, covering all owned or rented vehicles, each with combined single limits of not less than $1,000,000 per occurrence for bodily injury and property damage;
If Professional Services are rendered in the performance of this Agreement, Professional Liability insurance with a limit not less than $2,000,000 per claim; and
Motor Cargo Liability coverage with a limit not less than $250,000 per conveyance.
Additional Requirements
The Commercial General Liability and Automobile Liability policies will name TOPS Products LLC as an additional insured as its interest may appear, and contain a cross liability (severability of interests) clause. The Commercial General Liability and Automobile Liability insurance shall be written on an occurrence basis.Insurance Certificates
Supplier shall maintain and could be requested to provide certificates of insurance evidencing such insurance signed by an authorized representative of the insurance company. Supplier's insurance shall be primary and non-contributory to any insurance coverage maintained by TOPS Products LLC. Supplier shall be responsible for deductibles, self-insured retentions and premium payments contained in any of the foregoing policies. If requested, properly endorsed Certificates of Insurance may be sent to the following address:TOPS Products LLC
TOPS Products LLC Risk Management Department
184 Shuman Blvd. Ste. #130
Naperville, IL 60563Subcontractors
Any subcontractor that Supplier shall retain to perform Services under this Agreement must maintain insurance that meets all requirements of Supplier.Liability
TOPS Products LLC shall not, because of accepting, rejecting, approving, or receiving any certificate of insurance required hereunder, incur any liability for: the existence, non-existence, form or legal sufficiency of the insurance described on such certificate; the solvency of any insurer; or the payment of losses. No provision under this Section shall be construed or deemed to limit Supplier's obligations under this Agreement to pay damages or other costs and expenses.Supplier's Tools and Equipment
Supplier's own tools and equipment shall be entirely at Supplier's risk. Loss of TOPS Products LLC property shall be at TOPS Products LLC's risk unless damage is caused by the negligence of contractor or its subcontractors.
Payment
Except as otherwise provided in the Agreement, payment shall be made as follows:
On or before the tenth (10th) day of each month Supplier shall invoice for 90% of the contract value of labor and materials in place as of the end of the preceding calendar month, less the aggregate of amounts previously paid to Supplier by TOPS Products LLC; such invoice shall be made to TOPS Products LLC's Accounts Payable Department or other location as directed by GSS. If the Work has been performed as described in such invoice and in accordance with the Agreement, payments shall be made within the time period specified in the Agreement.If the total contract price exceeds $5,000.00, each invoice for payment shall be accompanied by Waivers of Mechanics' Liens (partial and/or final) from Supplier, all subcontractors and all material men, and an affidavit by Supplier stating that all expenses incurred to date in connection with the Work have been paid in full.
Prompt payment of the balance of the contract price shall be made (1) when the Work has been completed in accordance with the Agreement and certified by the Installation Coordinator, and (2) when Supplier has in all other respects fully performed its obligations hereunder.
Changes in the Work
Supplier agrees to make any and all changes, furnish the materials and perform such extra Work as TOPS Products LLC may require as a reasonable addition to or reduction from the contract price as hereinafter provided. Except for minor modifications in the Work not involving extra cost and not inconsistent with the purpose of the project and except in an emergency endangering life or property, no changes shall be made or extra Work performed unless authorized by TOPS Products LLC and confirmed by a written Purchase Change Order from TOPS Products LLC. No claim for an addition to the contract price for such Work shall be valid unless so authorized and ordered. Prior to authorizing any change or extra Work, the parties shall reach mutual agreement from the list of the alternative methods stated below how the proposed change or extra Work is to be priced which shall be confirmed by the written Purchase Change Order, on the specific terms of the pricing method so designated. The alternatives for the pricing proposed Work changes are as follows:Total lump-sum price to TOPS Products LLC, supported by a detailed breakdown of incremental costs and quantities.
Per-unit price to TOPS Products LLC, multiplied by the projected number of units involved in the Work change.
Estimate of total lump-sum price to TOPS Products LLC, with the Work to be done on a cost-plus basis subject to an agreed upon maximum price. When Supplier is ordered to proceed on this basis by the Installation Coordinator, Supplier shall keep and present in such form as directed a detailed and accurate record of all time changes and material costs incurred. Time tickets covering all of the labor and invoices substantiating material costs shall be approved by the Installation Coordinator prior to submission to GSS for payment authorization.
Completion of Installation
Upon completion of the project and before final payment, Supplier shall (1) furnish one complete set of marked drawings showing the sizes and locations of all installations and the as-built conditions of the project as actually completed, and (2) turn over all complete copies (as stated on the Agreement) of all manufacturer's instruction sheets supplied with any installed equipment.Testing
TOPS Products LLC personnel or equipment manufacturer's representatives shall be permitted to use tools to test, adjust and make any equipment installed by Supplier functional.Exceptions
All exceptions to the Agreement shall be detailed and accompany the quotations. Exceptions not specifically included in the Agreement will not be honored after the contract has been signed.Failure of Performance
If Supplier defaults in performing any of the conditions set forth in the Agreement, TOPS Products LLC may, on written notice to Supplier, terminate the Agreement and may enter upon and employ others to finish the Work. In such event, and not to the exclusion of other remedies which may be available to TOPS Products LLC, the costs of finishing the Work shall be deducted from the contract price to the extent the balance thereof is sufficient to pay such costs and Supplier shall pay any excess of such costs to TOPS Products LLC.Safety Guidelines
Supplier shall adhere to all EHS provisions contained within the TOPS Products LLC Contractor EHS program attachments posted at:Supplier Info.
At all times the Work is in progress, Supplier shall keep on the premises a responsible employee who shall be authorized by Supplier to give and receive information, receive notices and directions and, subject to the provisions of Section 1.07, agree to necessary changes arising in the course of the Work. Supplier shall also have a copy of the latest revised plans and specifications available on the premises at all times while the W ork is in progress.
Supplier shall during the progress of the Work remove and dispose of the resultant dirt, scrap and debris and shall keep the premises clean. All papers, cardboard boxes, etc., are to be broken up and placed in properly marked refuse containers. On projects of lengthy duration in production areas, the entire work area must be cleaned and all rubbish disposed of daily, Nonproductive areas shall be cleared with rubbish disposed of in periods not exceeding one week. Upon completion of the project, the premises shall be left in a neat and clean condition.
If any equipment to which this contract relates is received by Supplier and shows evidence of damage or defect when uncrated, removed from shipping containers, cleaned or while installing, Supplier's foreman shall notify the Installation Coordinator before any corrective action is taken so that responsibility may be determined and accepted before evidence is lost.
No smoking is permitted in any TOPS Products LLC building except in authorized smoking areas. The use or possession of alcoholic beverages, marijuana, narcotics or other controlled substances or illegal drugs on or off TOPS Products LLC premises on the day(s) Work is performed for TOPS Products LLC is strictly forbidden. No person who has used an alcoholic beverage, marijuana, narcotic or other controlled substance or illegal drug on or off TOPS Products LLC premises or who is under the influence of an alcoholic beverage, marijuana, narcotic or other controlled substance or illegal drug on the day(s) Work is performed for TOPS Products LLC shall enter upon or work on TOPS Products LLC premises.
TOPS Products LLC's Receiving Department will not sign for materials ordered by Supplier from vendors nor in any way be responsible for materials shipped directly to TOPS Products LLC. It shall be Supplier's responsibility to receive and handle materials at Supplier's place of business and have them brought to the job site in the same manner as Supplier's tools. Exceptions to this provision must be approved in advance. The exceptions cover bulky materials needed for the job, requiring special handling or elevator service. Supplier shall arrange in advance with the Installation Coordinator for the necessary facilities or service.
TOPS Products LLC will arrange for and designate adequate sanitary facilities for Supplier's employees, and facilities where such employees change clothes.
TOPS Products LLC reserves the right to inspect all toolboxes or other containers entering or leaving the premises.
Supplier's personnel shall not remove printed products from production areas or TOPS Products LLC premises.
Supplier shall inform business agents of any unions working in the TOPS Products LLC plant that they are not permitted in the plant without advance approval of the Installation Coordinator.
H-1 SPECIFICATIONS
Privacy and Data Security
Revised December 2020
- Contract Documents
These H-1 Specifications, together with all other specifications referenced in the contract, constitute an integral part of the agreement between TOPS Products LLC and the Supplier ("Agreement"). The Supplier must notify the appropriate TOPS Products LLC Purchasing or Global Strategic Sourcing representative in writing immediately if it cannot meet all requirements of these Specifications.
- Definitions
"Breach" means the acquisition, access, use or disclosure of PHI in a manner not permitted by the Privacy Rule which compromises the security or privacy of such information as described in 45 C.F.R. § 164.402, except where an unauthorized person to whom such information is disclosed would not reasonably have been able to retain such information. It also includes, except as provided elsewhere in this paragraph 1.a., the unintentional loss or inadvertent disclosure of Personal Information, or the attempted or successful unauthorized access, use, disclosure, modification, destruction or transfer of Personal Information, or any other type of information security breach, loss, corruption or interference with system operations involving Personal Information. Breach does not include: (i) any unintentional acquisition, access, or use of PHI by an employee or individual acting under the authority of Supplier if such acquisition, access or use was made in good faith and within the course and scope of such employee's or individual's authority and does not result in further use or disclosure by any person in a manner not permitted by 45 C.F.R. § 164 Subpart E; or (ii) any inadvertent disclosure by an individual who is authorized to access PHI at a facility operated by Supplier to another individual authorized to access PHI at the same facility and the information received as a result of such disclosure is not further used or disclosed in a manner not permitted by 45 C.F.R. § 164 Subpart E.
"Breach Notification Rule" means the final regulatory provisions set forth at 45 C.F.R., Parts 160 and 164, Subparts A and D.
"CMS" means the Center for Medicare and Medicaid Services.
"Covered Entity Client" shall mean each of TOPS Products LLC's clients that qualifies as a "Covered Entity" under 45 C.F.R. § 160.103.
"Designated Record Set" shall have the meaning as the term is defined in 45 C.F.R. § 164.501.
"Downstream Entity" means any party that enters into an agreement with a Delegated Entity or with another Downstream Entity for purposes of providing administrative or health care services related to the agreement between the Delegated Entity and the QHP Issuer. The term Downstream Entity is intended to reach the entity that directly provides administrative services or health care services to qualified individuals, qualified employers, or qualified employees and their dependents.
"Electronic PHI" means information that comes within paragraphs 1(i) or 1(ii) of the definition of PHI as defined in 45 C.F.R. § 160.103, limited to the information created or received by Supplier from or on behalf of TOPS Products LLC.
"Exchange" means a governmental agency or non-profit entity that meets the applicable standards of 45 C.F.R. §155, subpart D and makes QHPs (as defined below) available to individuals and employers. This term includes both state and Federally-facilitated Exchanges
"GLBA" means the Gramm-Leach-Bliley Act (15 U.S.C. 6801 et seq.) and the regulations promulgated from time to time thereunder.
"HIPAA" means the Health Insurance Portability and Accountability Act of 1996 and the final regulations promulgated by the U.S. Department of Health and Human Services from time to time thereunder.
"HITECH" means the Health Information Technology for Economic and Clinical Health Act as set forth in Title XIII of Division A and Title IV of Division B of the American Recovery and Reinvestment Act of 2009 and the final regulations promulgated by the U.S. Department of Health and Human Services from time to time thereunder.
"Individual" has the same meaning as the term "individual" in 45 CFR § 160.103 and shall include persons who qualify as a personal representative in accordance with 45 C.F.R. § 164.502(g).
"Massachusetts Data Security Law" means Massachusetts General Law Chapter 93H and the regulations promulgated from time to time thereunder.
"Personal Information" means any non-public information - whether in paper or electronic form supplied by TOPS Products LLC that identifies, relates to, describes, or is capable of being associated with, a particular individual, including, but not limited to, his or her name, address, social security number, driver's license or state identification card number, insurance policy number, financial or credit or account numbers (with or without any required security code, access code, personal identification number or password) or any other non public personally identifiable information as defined by any Privacy Law.
"Privacy Laws" means HIPAA, HITECH, GLBA, the Massachusetts Data Security Law, the Privacy Principles and any other applicable privacy or data security laws, rules or regulations.
"Privacy Rule" means the final federal privacy regulations issued pursuant to HIPAA, as amended from time to time, codified at 45 C.F.R. Part 160 and Part 164, Subparts A and E.
"Privacy Principles" means the EU-U.S. Privacy Shield Framework Principles issued by the U.S. Department of Commerce, the text of which may be available at ec.europa.eu/justice/data-protection/files/privacy.
"Protected Health Information" or "PHI" shall have the same meaning as the term "PHI" in 45 C.F.R. § 164.103, limited to the information created or received by Supplier from or on behalf of TOPS Products LLC.
"Qualified Health Plan" or QHP means a health plan that has been certified that it meets the standards described in 45 C.F.R. § 156, subpart C, or that has been approved by the state Exchange through which such plan is offered.
"Required By Law" shall have the same meaning as the term "required by law" in 45 C.F.R. § 164.103.
"Security Rule" means the final federal security regulations issued pursuant to HIPAA as amended from time to time, codified at 45 C.F.R. Part 160 and Part 164, Subparts A and C.
"Unsecured PHI" means PHI that is not rendered unusable, unreadable, or indecipherable to unauthorized persons through the use of a technology or methodology specified by guidance issued by the Secretary of the Department of Health and Human Services (the "Secretary").
All terms used in these Specifications that are not otherwise defined herein have the same meaning as those terms under the Privacy Laws. A reference in these Specifications to a section in a Privacy Law means the section as in effect or as amended from time to time.
- Purpose
TOPS Products LLC has certain obligations under Privacy Laws with regard to Personal Information and PHI that TOPS Products LLC receives from its clients or owns or licenses, and has agreed with its clients or is otherwise required under Privacy Laws to maintain an agreement with each agent or subcontractor that has or will have access to the Personal Information or PHI. These Specifications set forth the parties' agreement with respect to applicable provisions of (i) the privacy and security requirements of the Privacy Laws, and (ii) with respect to the applicable Medicare Advantage and Medicare Part D regulatory requirements described in Section 7 below.
- Minimum Necessary
Supplier agrees to limit, to the extent practicable and except as permitted by 45 C.F.R. § 164.502(b)(2), its uses and disclosures of, and its requests for, PHI and other Personal Information under these Specifications to de-identified PHI (as defined in 45 C.F.R. § 164.514(b)) or, if de- identified PHI is not sufficient for Supplier's purpose, to the minimum necessary PHI or other Personal Information to accomplish the intended purpose of such use, disclosure or request.
- Obligations of Supplier
- Permitted Uses and Disclosures.
Use and Disclosure. Supplier may use or disclose PHI or other Personal Information only to provide services to TOPS Products LLC under the Agreement. Supplier is not authorized to use or further disclose PHI in a manner that would violate the Privacy Rule if done by a Covered Entity Client or by TOPS Products LLC on behalf of a Covered Entity Client. Notwithstanding any other provision of these Specifications, Supplier may use and disclose PHI or other Personal Information for the proper management and administration of the Supplier or to carry out the legal responsibilities of the Supplier, provided that any such disclosures are either Required By Law or Supplier obtains reasonable assurances from the recipient of such information that the information will be held confidentially and used or further disclosed only as required by law or for the purpose for which it was disclosed to the recipient and the recipient will notify Supplier of any instances of which the recipient is aware in which the confidentiality of the information has been breached. Supplier may not use or disclose PHI or other Personal Information other than as permitted or required by these Specifications or as Required by Law.
Safeguards. At any and all times during which Supplier is processing PHI or other Personal Information, or otherwise having access to such PHI or other Personal Information, it will develop, implement and maintain safeguards, documented in writing, to prevent the use or disclosure of PHI or other Personal Information other than as provided by the Privacy Rule and these Specifications, and will comply, where applicable, with the Security Rule with regard to Electronic PHI. Such safeguards shall include, but not be limited to, provisions to: (i) ensure the security and confidentiality of PHI and other Personal Information; (ii) protect against the use or disclosure of PHI or other Personal Information other than as provided for in these Specifications, (iii) protect against any anticipated threats or hazards to the security or integrity of PHI or other Personal Information; (iv) protect the confidentiality, integrity, and availability of Electronic PHI or other electronic Personal Information that it receives, maintains or transmits on behalf of TOPS Products LLC, and (v) protect against unauthorized access to or use of PHI or other Personal Information. Supplier shall comply with Mass. 201 CMR 17.03 and 17.04, as such regulations are amended from time to time.
Privacy Principles. In connection with Supplier's processing of Personal Information that is subject to the Privacy Principles:
Supplier will (i) provide at least the same level of privacy and data security protection as is required under the Privacy Principles and (ii) process such Personal Information only to perform the Services under Supplier's contract with TOPS Products LLC or as otherwise instructed by TOPS Products LLC;
If Supplier determines that it is unable to protect such Personal Information in accordance with the Privacy Principles, it will (i) immediately notify TOPS Products LLC; (ii) immediately cease processing such Personal Information, (iii) take reasonable and appropriate steps to remediate such inability, and (iv) immediately notify TOPS Products LLC upon such remediation; and
Without the prior consent of TOPS Products LLC, Supplier will not disclose or otherwise transfer any Personal Information that is subject to the Privacy Principles (i) outside of the United States, or (ii) to any third party, except as required by applicable law or court order.
Suppliers and Agents. Supplier shall (1) ensure that any third party , including an agent or subcontractor, to whom it provides PHI or other Personal Information received from, or created or received by Supplier on behalf of, TOPS Products LLC agrees, in writing, to at least same restrictions and conditions that apply through these Specifications to Supplier with respect to such information and (2) be liable for the acts or omissions of any such party.
Internal Practices. Supplier agrees to make its internal practices, books, and records, including policies and procedures, relating to the use and disclosure of PHI and Personal Information received from, or created or received by Supplier on behalf of, TOPS Products LLC available to TOPS Products LLC, its client(s) and government agencies for purposes of determining compliance with a Privacy Law.
Accounting for Disclosures. Supplier agrees to document any disclosures of PHI or Personal Information by Supplier, including documentation required by 45 C.F.R. § 164.528. Within three (3) business days of notice by a client, TOPS Products LLC or a government agency, Supplier shall make available to TOPS Products LLC or, at TOPS Products LLC's request, the client or government agency such information as is in Supplier's possession.
Access to PHI and Personal Information. Within three (3) business days of a request by TOPS Products LLC, a client or government agency for access to PHI or Personal Information about an individual contained in a Designated Record Set, Supplier shall make available to TOPS Products LLC or, at TOPS Products LLC's request, the client or government agency, such PHI or Personal Information. Supplier will: (1) immediately notify TOPS Products LLC of any request by a data subject to exercise any right with respect to Personal Information, including the right to access, correct, amend or delete such Personal Information; (2) at the direction of TOPS Products LLC, cooperate and assist TOPS Products LLC in responding to any such data subject request; and (3) upon TOPS Products LLC'ss request, correct, amend, delete or take any other action with respect to Personal Information. As between TOPS Products LLC and Supplier, TOPS Products LLC shall be responsible for determining whether to deny access to the PHI or Personal Information and Supplier shall comply with such determinations. If Supplier maintains any PHI in a Designated Record Set electronically, and TOPS Products LLC requests an electronic copy of such PHI, Supplier will provide an electronic copy in the form and format requested by TOPS Products LLC, if feasible. If it is infeasible for Supplier to provide an electronic copy in the form and format requested by TOPS Products LLC, Supplier will provide a readable electronic copy of such PHI in a form and format as agreed by Supplier and TOPS Products LLC.
Amendments. Supplier agrees to make any amendment to PHI or Personal Information in a Designated Record Set, as requested by the client or TOPS Products LLC.
Carrying Out Covered Entity Client Obligations. To the extent Supplier is to carry out a Covered Entity Client's obligations under the Privacy Rule; or (b) TOPS Products LLC's obligations on behalf of a Covered Entity Client under the Privacy Rule, Supplier will comply with the requirements of the Privacy Rule that apply to the Covered Entity Client in the performance of such obligations.
Notification of Breach. With the exception of law enforcement delays that satisfy the requirements under 45 C.F.R. § 164.412 or as otherwise required by applicable Privacy Laws, Supplier agrees to promptly report to TOPS Products LLC any Breach of Personal Information or Unsecured PHI and in no case later than five (5) calendar days after discovery of a Breach in accordance with the applicable Privacy Laws. Supplier's notification of a Breach under this section shall include, to the extent known:
the identification of each Individual whose PHI or other Personal Information has been, or is reasonably believed to have been, accessed, acquired, or disclosed during the Breach;
a brief description of what happened, including the dates of the Breach and discovery of the Breach, if known;
the scope of the Breach, including a description of the types of PHI or Personal Information involved; and
a description of Supplier's response to the Breach.
Supplier shall provide any additional information concerning the Breach as reasonably requested by TOPS Products LLC. Supplier will also assist and cooperate with TOPS Products LLC with any necessary or appropriate disclosures and other investigative, remedial and monitoring measures as a result of the Breach, including but not limited to notification to affected individuals or regulating authorities as may be required by law. At the direction of TOPS Products LLC, Supplier shall provide such notifications in accordance with the Breach Notification Rule and applicable state law and/or pay for the reasonable and actual costs associated with TOPS Products LLC's provision of those notifications, any remediation, and TOPS Products LLC's legal fees. Supplier further agrees to immediately report to TOPS Products LLC any Security Incident of which it becomes aware.
Mitigation. Supplier shall mitigate, to the greatest extent reasonably possible, any deleterious effects from any Breach of Personal Information or Unsecured PHI, any Security Incident or any other improper use or disclosure of PHI or Personal Information.
Training. Supplier represents that all employees, agents, representatives, and work force members whose services are used to fulfill obligations under these Specifications or the underlying agreement are appropriately trained in order to satisfy the terms of these Specifications.
Business Associate Agreements. Notwithstanding the previous provisions, Supplier also shall be bound by the restrictions, terms, and conditions of the business associate agreements that TOPS Products LLC has entered into with Covered Entity Clients and that are provided to Supplier under these Specifications. Upon request (and approval by applicable Covered Entity Clients), TOPS Products LLC shall provide copies of the applicable business associate agreements(s) into which TOPS Products LLC has entered, that apply to Supplier's work under these Specifications, including any new business associate agreements TOPS Products LLC may enter following the execution and delivery of these Specifications, and all the provisions of all such agreements shall be automatically incorporated into these Specifications. Where any business associate agreement requires TOPS Products LLC to take action within a certain time frame and such action would require Supplier to notify or respond to TOPS Products LLC in order for TOPS Products LLC to fulfill its obligations to any Covered Entity Client, Supplier shall promptly notify or respond to TOPS Products LLC to enable TOPS Products LLC to meet its obligations.
Disclosure for Remuneration. Supplier shall not directly or indirectly receive remuneration in exchange for disclosing PHI received from TOPS Products LLC, or created or received by Supplier on behalf of TOPS Products LLC. Supplier shall not disclose PHI received from TOPS Products LLC, or created or received by Supplier on behalf of TOPS Products LLC, for marketing purposes.
- Permitted Uses and Disclosures.
- Information Security Requirements.
Duty to Protect and Standards for Protecting PHI and Personal Information. Supplier shall comply with all Privacy Laws that govern the privacy or security of Personal Information, including but not limited to, the Security Rule, the Privacy Principles and the requirements set forth in the Massachusetts 201 CMR 17.03 and 17.04. Supplier shall implement a written comprehensive information security program which shall include but is not limited to the following:
Designating one employee as the Security Official, to develop and maintain the comprehensive information security program;
Identifying and assessing reasonably foreseeable internal and external risks to the security, confidentiality and/or integrity of any electronic, paper or other records containing Personal Information, and evaluating and improving, where necessary, the effectiveness of the current safeguards for limiting such risks.
Developing security policies for employees relating to the storage, access and transportation of records containing PHI or Personal Information inside and outside of business premises.
Imposing disciplinary measures for violations of the comprehensive information security program rules.
Preventing terminated employees from accessing records containing Personal Information.
Reasonable restrictions upon physical access to records containing Personal Information and storage of such records and data in locked facilities, storage areas or containers.
Regular monitoring to ensure that the comprehensive information security program is operating in a manner reasonably calculated to prevent unauthorized access to or unauthorized use of Personal Information; and upgrading information safeguards as necessary to limit risks.
Reviewing the scope of the security measures at least annually or whenever there is a material change in business practices or environment that may reasonably implicate the security or integrity of records containing Personal Information.
Documenting responsive actions taken in connection with any incident involving a breach of security, and mandatory post-incident review of events and actions taken, if any, to make changes in business practices relating to protection of Personal Information.
Computer System Security Requirements. Supplier shall include in its information security program a computer security system that complies with the Security Rule, including but not limited to the following elements:
Secure user authentication protocols including:
control of user IDs and other identifiers;
a reasonably secure method of assigning and selecting passwords, or use of unique identifier technologies, such as biometrics or token devices;
control of data security passwords to ensure that such passwords are kept in a location and/or format that does not compromise the security of the data they protect;
restricting access to active users and active user accounts only; and
blocking access to user identification after multiple unsuccessful attempts to gain access or the limitation placed on access for the particular system;
Secure access control measures that:
- restrict access to records and files containing Personal Information or PHI to those who need such information to perform their job duties; and
assign unique identifications plus passwords, which are not vendor supplied default passwords, to each person with computer access, that are reasonably designed to maintain the integrity of the security of the access controls;
Encryption of all PHI and Personal Information at rest and during transmission, using an encryption methodology or technology approved by the Secretary.
Reasonable monitoring of systems, for unauthorized use of or access to Personal Information;
For files containing Personal Information or PHI on a system that is connected to the Internet, there must be reasonably up-to-date firewall protection and operating system security patches, reasonably designed to maintain the integrity of the Personal Information.
Reasonably up-to-date versions of system security agent software which must include malware protection and reasonably up-to-date patches and virus definitions, or a version of such software that can still be supported with up-to-date patches and virus definitions, and is set to receive the most current security updates on a regular basis.
Education and training of employees on the proper use of the computer security system and the importance of Personal Information and PHI security.
- Medicare Advantage, Medicare Part D and Qualified Health Plan Regulatory Compliance.
Certain services provided by Supplier may be subject to regulatory requirements applicable to Medicare Advantage plans, Medicare Part D plans, and Qualified Health Plan ("QHP") issuers and their delegated and downstream entities pursuant to Title XVIII of the Social Security Act and any subsequent amendments or relevant regulations promulgated thereto ("Medicare Regulations"), and/or the Patient Protection and Affordable Care Act ("ACA") and any subsequent amendments or relevant regulations promulgated thereto ("ACA Regulations"). To the extent that Supplier provides Services that are subject to Medicare or ACA Regulations, the following shall apply:
Fraud, Waste and Abuse Training. In accordance with, but not limited to 42 C.F.R. § 423.504(b)(4)(vi)(C)&(D) and 42 C.F.R. § 422.503(b)(4)(vi)(C)&(D) (and corresponding subregulatory guidance), Supplier agrees and certifies that it, as well as its agents and subcontractors that provide services under the underlying agreement ("Supplier Personnel") shall participate in annual fraud, waste and abuse compliance training and implement effective lines of communicating compliance issues as requested by TOPS Products LLC or its customers, or as otherwise required by applicable law. Such training shall be required for any new Supplier Personnel that are involved in the performance of any services under the underlying agreement within 90 days of initial hire or contracting and annually thereafter.
Training options. Suppliers may satisfy the training requirement in one of two ways: (1) Completion of the general compliance and/or FWA training modules located on the CMS Medicare Learning Network (MLN). Once the individual completes the training module, the system will generate a certificate of completion. Or, (2) Incorporation of the CMS standardized training modules into the organization's existing compliance training materials/systems. If Supplier chooses option 2, CMS training content must not be modified. However, Supplier can add to the CMS training to cover topics specific to their organization
Training documentation. Supplier must maintain certificates or documentation of training completion and will furnish a certificate of training such as certificates of completion, training logs, system generated reports, spreadsheets, etc. upon request by TOPS Products LLC, its customers or the Department of Health and Human Services ("HHS"). Documentation of training completion such as training logs, reports, etc. must include at minimum employee names, dates of employment, dates of completion, and passing scores (if captured) to clearly document training completion.
Background Checks. Supplier certifies that neither it nor any of its Supplier Personnel that perform services under the underlying agreement are listed on either the Office of Inspector General, HHS or the General Services Administration exclusion list. Supplier shall immediately notify TOPS Products LLC if any Supplier Personnel are excluded by a state or federal health care program. At least monthly (or as otherwise required by TOPS Products LLC, its customers or HHS), Supplier shall, upon request, perform and document (or shall allow TOPS Products LLC to perform and document) appropriate background checks of applicable Supplier Personnel to ensure compliance with this requirement.
Inspection of Books and Records; Record Retention. In accordance with, but not limited to, 42 C.F.R. § 422.504(i) and/or 42 C.F.R. § 423.505(i) and/or 45 C.F.R. § 156.340, Supplier acknowledges that TOPS Products LLC, TOPS Products LLC's customers, HHS, the Comptroller General or their designees have the right to timely inspect, evaluate and audit Supplier and/or certain Supplier books, records, computers and other electronic systems related to the underlying agreement or services provided under the underlying agreement. Such audit rights shall continue for a period of ten (10) years from termination of the underlying agreement or the date of the completion of any audit, whichever is later or for such longer period to the extent required by 42 C.F.R. § 422.504(e)(4) and/or C.F.R. § 422.505(e)(4) and/or 45 C.F.R. § 156.340(b)(4) or other applicable law, and Supplier shall maintain all applicable books and records in accordance thereto. Supplier shall produce upon request by HHS, or its designees, any books, contracts, or records relating to the Part D program, to either the Part D sponsor to provide to CMS, or directly to CMS or its designees.
Compliance with Medicare Law. Supplier shall comply with all applicable federal laws, regulations, and CMS instructions as well as all applicable state and federal laws and regulations including, but not limited to the provisions of 45 C.F.R. Parts 155 and 156, to the extent relevant in performing its duties and obligations on behalf of TOPS Products LLC or its customers.
Automatic Amendment. Supplier agrees to include in these Specifications such other terms and conditions as CMS may find necessary and appropriate in order to implement Medicare Regulations.
Consistency with CMS Contracts. The parties agree that the services performed by Supplier are consistent with and comply with the contractual obligations of Medicare Advantage plans, Part D plan sponsors and QHP issuers under their contracts with CMS.
Freedom from Conflict of Interests. As required by TOPS Products LLC's customers, Supplier shall require their managers, officers and directors responsible for the administration of Part D benefits to sign a conflict of interest statement, attestation or certification at the time of hire and annually thereafter certifying that the individual is free from any conflict of interest in administering or delivering Part D benefits.
Qualified Health Plan Regulatory Compliance. Vendor shall include in its contract with any Downstream Entities, and require such Downstream Entities to include in their contracts with other Downstream Entities, language that is the same or substantially similar to that contained in these Specifications, and which expressly requires each Downstream Entity to:
Comply with all applicable state and federal laws and regulations, including but not limited to the provisions of 45 C.F.R. Parts 155 and 156, to the extent relevant, in performing or assisting in the performance of the duties and obligations set forth in these Specifications; and
Grant access to its books, contracts, computers, or other electronic systems (including medical records and documentation), relating to such downstream entity's compliance with applicable provisions under 45 C.F.R. Parts 155 and 156 in connection with the duties and obligations set forth in these Specifications, to HHS and its Office of Inspector General (or their designees), for the duration of the period in which these Specifications is effective, and for a minimum of ten (10) years from the date these Specifications terminate.
- Term and Termination
Term. The Term of these Specifications shall be effective as of the Agreement's Effective Date and shall terminate when all of the PHI and Personal Information provided by TOPS Products LLC to Supplier or created or received by Supplier on behalf of TOPS Products LLC is destroyed or returned to TOPS Products LLC.
Termination for Cause. Without limiting the termination rights of the parties pursuant to the Agreement, upon either party's knowledge of a violation of a material term of these Specifications by the other party, the non-breaching party may either: (a) provide an opportunity for the breaching party to cure the breach or end the violation, or terminate the underlying agreement, if the breaching party does not cure the breach or end the violation within five (5) business days of notice of breach by the non-breaching party; or (b) immediately terminate these Specifications (and Agreement), if cure is not reasonably possible.
Effect of Termination.
Except as permitted by subsection (ii) below, upon termination of the Agreement for any reason, Supplier shall return or destroy all PHI or other Personal Information received from TOPS Products LLC, or created or received by Supplier on behalf of TOPS Products LLC which Supplier still maintains in any form. This provision shall apply to PHI or other Personal Information that is in the possession of subcontractors or agents of Supplier. Supplier shall retain no copies of the PHI or Personal Information.
In the event that returning or destroying the PHI or other Personal Information is infeasible, Supplier shall notify TOPS Products LLC in writing and may retain the PHI subject to this Subsection 8.c.2. and TOPS Products LLC's approval. Supplier shall extend the protections of these Specifications to such PHI or other Personal Information and limit further uses and disclosures of such PHI or other Personal Information to those purposes that make the return or destruction infeasible, for so long as Supplier maintains such PHI or other Personal Information.
Compliance with these Specifications. Compliance with the terms of these Specifications is a material term of the underlying agreement and any and all agreements pursuant to which TOPS Products LLC is making available PHI and other Personal Information to Supplier. Breach of these Specifications shall constitute a default by Supplier under the underlying agreement and any and all other agreements between the parties and shall give rise to TOPS Products LLC's immediate right to terminate the Agreement and such other agreements.
- Indemnification.
Supplier shall indemnify, defend and hold TOPS Products LLC harmless against any and all claims, liabilities, losses, damages, costs or expenses, including reasonable attorneys' fees and legal expenses incurred by TOPS Products LLC as a result of Supplier's violation of these Specifications or any Privacy Laws or Breach of Unsecured PHI.
- Miscellaneous
Amendment. TOPS Products LLC may amend these Specifications at any time to comply with the requirements of Privacy Laws, as they may be amended from time to time, and any implementing regulations thereto that may be promulgated or revised from time to time. The governing version of these Specifications shall be the version in effect at the time services are provided by Supplier. TOPS Products LLC shall retain copies of all versions of these Specifications during the term of the Agreement and records showing the effective dates of each version.
Survival. The obligations of Supplier under these Specifications shall survive the termination of these Specifications.
Entire Agreement. These Specifications and the Agreement embody and constitute the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior oral or written agreements, commitments, and understandings pertaining to the subject matter hereof.
Conflict. In the event of any conflict between these Specifications and the Agreement as to the subject matter referenced herein, these Specifications shall control.
No Assignment. Supplier may not assign its rights and obligations under these Specifications without the prior written consent of TOPS Products LLC.
INVOICE REQUIREMENTS
Added November 18, 2013, revised December 2020 for TOPS Products LLC
Please send invoices to the Bill-to on your Purchase Order unless otherwise stated on the PO or other arrangements have been made with TOPS Products LLC.
For the email Bill-to:
- Email invoices and credit memos to lscinvoices@lsccom.com as attachments.
- Only one invoice or credit memo per attachment.
- Multiple attachments are allowed in one email.
- Attachments can be PDF, TIFF, MS Word, or MS Excel files.
- Each invoice or credit memo can reference only one PO, but it must reference a PO.
- Do not send duplicate invoices or credit memos.
- Do not send comments in the body of the email. The email address is not monitored so any comments in the email will go unnoticed.
- Do not send invoices and credit memos to a different email address or by fax or mail.
- If you have any questions about an invoice, credit memo, or payment, please use our online customer service portal or contact Nvoicepay directly at 877-626-6332 or email at vendorsupport@nvoicepay.com
- If emailing invoices as attachments is absolutely not an option, then mail invoices to PO Box 281949, Nashville, TN 37228.
For the regular mail Bill-to's (sites not on centralized invoicing):
- Mail invoices and credit memos to the street address on the Purchase Order.
- Each invoice or credit memo can reference only one PO, but it must reference a PO.
- Do not send duplicate invoices or credit memos.
- Do not send invoices and credit memos to the TOPS Products LLC invoice email address or by fax.
- Send any inquiries about an invoice, credit memo or payment to the street address on the Purchase Order.
PURCHASE ORDER TERMS & CONDITIONS - US
Revised December, 2020
Acceptance
These terms and conditions and the documents referred to herein govern all Purchase Orders ("Orders") issued by TOPS Products LLC or one of its subsidiaries located in the United States of America to the Supplier identified on each Order. Fulfillment of any part of an Order, or any other conduct by Supplier which recognizes the existence of a contract pertaining to the subject matter of such Order, shall constitute acceptance by Supplier of such Order and all of the terms and conditions included or referenced on this page (the "Contract Terms"). TOPS Products LLC objects to any terms proposed in Supplier's proposal, sales note, acknowledgment or other form of acceptance of TOPS Products LLC's offer which add to, vary from, or conflict with the Contract Terms. Any such proposed terms shall be void and the Contract Terms constitute the complete and exclusive statement of the terms and conditions between Supplier and TOPS Products LLC. The Contract Terms may be modified only by a written instrument executed by authorized representatives of both Supplier and TOPS Products LLC. If an Order has been issued by TOPS Products LLC in response to Supplier's offer and if any of the Contract Terms add to, vary from or conflict with any terms of Supplier's offer, then the issuance of the Order by TOPS Products LLC shall constitute an acceptance of Supplier's offer subject to the express conditions that Supplier assents to the additional, different and conflicting Contract Terms and acknowledges that the Order and these Contracts Terms constitutes the entire agreement between Supplier and TOPS Products LLC with respect to the subject matter hereof and the subject matter of Supplier's offer. Supplier shall be deemed to have accepted the Contract Terms unless Supplier notifies TOPS Products LLC to the contrary in a writing signed by Supplier's authorized representative within one (1) business day after receipt of the Order.Termination
TOPS Products LLC may terminate for convenience at any time by written notice any Order, or its obligation to purchase any products or services from Supplier. If an Order is terminated for convenience, the Order shall be deemed terminated upon receipt of the Notice, unless the notice specifies a date for termination or otherwise mutually agreed to by the parties. TOPS Products LLC shall pay for any products delivered or services performed prior to the date that termination becomes effective (on a pro rata basis if TOPS Products LLC has paid in advance any fees covering a fixed period of Services). Unless TOPS Products LLC has requested and received a refund in respect of any undelivered product(s) or terminated services, it shall be entitled to the delivery of all product(s) and completion of all services for which it has paid prior to the effective date of the termination. In addition to any other remedy provided at law or equity, either party shall have the right to terminate or cancel an Order, and any obligation to purchase, sell or provide a product or service, in the event the other party (a) fails to comply with any condition of the Order or any related Agreement, and such failure is not remedied within thirty (30) days after written notice thereof has been given to such other party; (b) becomes insolvent, makes an assignment for the benefit of creditors, suffers or permits the appointment of a receiver, trustee in bankruptcy or similar officer for all or parts of its business or assets; or (c) avails itself of or becomes subject to any bankruptcy proceeding under the laws or any jurisdiction relating to insolvency or the protection of rights of creditors.Confidentiality
All specifications, documents, artwork, or drawings delivered to Supplier by TOPS Products LLC, and any other non-public information TOPS Products LLC discloses to Supplier, remains TOPS Products LLC's property. The information is provided to Supplier solely for the purpose of Supplier's performance of the Order and on the express condition that neither the Order nor the information contained therein or provided in connection therewith shall be disclosed to others nor used for any purpose other than in connection with the Order without TOPS Products LLC's prior express written consent. TOPS Products LLC reserves the right to request that Supplier return all such information to TOPS Products LLC or destroy it. Supplier's obligations under this paragraph shall survive the cancellation, termination or other completion of the Order.Warranty
Supplier expressly warrants that all products and services supplied to TOPS Products LLC by Supplier as a result of an Order shall conform to the specifications, drawings or other description upon which the Order is based, shall be fit and sufficient for the purpose intended, merchantable, of good material and workmanship, free from defects and free and clear of all liens or encumbrances. Inspection, testing, acceptance or use of the goods by TOPS Products LLC shall not affect Supplier's obligations under this warranty, and such warranty shall survive inspection, testing, acceptance and use. Supplier agrees to replace or correct promptly defects of any goods or services not conforming to the foregoing warranty without expense to TOPS Products LLC, when notified of such non-conformity by TOPS Products LLC. If Supplier fails to correct defects in or replace non-conforming goods or services promptly, Supplier will be responsible for any costs or damages incurred by TOPS Products LLC due to errors or defects in, or non-performance or non-delivery of, all or any part of the goods or services specified in any Order.Price
An Order must not be filled at a higher price than shown on the Order. Unless another currency is specified on the order, all monetary amounts are deemed to be expressed in U.S. dollars. If no price is shown, Supplier must notify the TOPS Products LLC Buyer who issued the Order of the price and his/her acceptance must be obtained in writing before filling the Order. The price shall not in any event be higher than the lowest price Supplier provides to any of Supplier's other customers ordering similar quantities, after taking into consideration all rebates, discounts and allowances. Unless otherwise provided on the Order, delivery of Goods shall be f.o.b. destination and Supplier will not charge for boxing, packing, crating or other charges. Supplier's prices include any and all related customs duty. If Supplier sells products to TOPS Products LLC, or if the services include provision to TOPS Products LLC of any deliverables, subject to any customs duty, Supplier's prices include any and all related customs duty.Taxes
TOPS Products LLC will not be liable for any taxes with respect to an Order, except for sales, use, retailers occupation, service occupation, excise, ad valorem, value added, or consumption taxes imposed by any governmental authority for the purchase of the products Supplier supplies, which Supplier is required by law to collect from TOPS Products LLC. Supplier shall not collect or remit, and TOPS Products LLC shall not be liable for, any such taxes if TOPS Products LLC has provided Supplier with a tax exemption certificate. TOPS Products LLC also will not be liable for any taxes of any nature based on the income of Supplier. If TOPS Products LLC is required by the law of any jurisdiction to withhold any taxes, duties, fees, levies, or charges ("Withholding Taxes") from any fees or other charges (including reimbursement of expenses) paid to Supplier, TOPS Products LLC will be entitled to deduct the amount of such Withholding Taxes from the amount of such fees or other charges (including reimbursement of expenses). If Supplier is either exempt from withholding or entitled to a reduced rate of withholding pursuant to a tax treaty or other applicable law, and provides TOPS Products LLC with adequate documentation of such exemption from or reduced rate of withholding, TOPS Products LLC will be entitled to withhold only such Withholding Taxes from which Supplier is not exempt. In case of doubt by TOPS Products LLC as to TOPS Products LLC's liability for any such tax, Supplier shall allow TOPS Products LLC, at TOPS Products LLC's expense, to assume control of any litigation or proceeding relating to the determination and settlement of such tax. TOPS Products LLC shall, upon final settlement of such litigation and proceeding, reimburse Supplier for any tax owing including in the amount to be reimbursed, any interest charges and penalties accruing thereon.Invoices
Supplier agrees to issue invoices referencing the Order number, line number (where applicable), release number (where applicable), item number, description of items, sizes, quantities, unit prices and extended totals. If an Order contains more than one item, Supplier's invoice will make the proper reference. Taxes, if any that are to be collected by Supplier shall be stated separately and shall be remitted by Supplier to the appropriate taxing authority. All invoices shall comply with the requirements of each relevant taxing authority and shall contain data and registration numbers that will enable TOPS Products LLC to obtain appropriate credit for any Taxes charged. All invoices shall be sent to the email or street address on the Order. Failure to comply with the above may result in delayed payment or returned invoices.Payment
As full consideration for Supplier's satisfactory provision of the products or performance of the services, TOPS Products LLC will pay Supplier's invoice not later than ninety (90) days following TOPS Products LLC's receipt of said invoice unless otherwise indicated in supplier agreement. TOPS Products LLC's payment of any such invoice shall constitute full and complete satisfaction of any and all actual and potential fees for the billing period covered by the invoice. Partial payments will not be made, unless TOPS Products LLC agrees otherwise in writing. All payment terms will be calculated based upon date of invoice and payment terms will be considered satisfied based upon date of postmark of payment, or if EFT payment, date of transmission. TOPS Products LLC shall receive invoices within three (3) business days of invoice date.Presumptions
Supplier shall be conclusively presumed to have waived Supplier's right to receive payment for products or services covered by any Order if Supplier has not submitted an invoice for the products or services within one (1) year of the date of the Order. Supplier's submission of an invoice shall give rise to a presumption that the charges are the full amount Supplier is due for the products or services listed on or referred to in the invoice for the purpose of determining the existence of any underpayment. Supplier may submit supplemental invoices only if accompanied by a photocopy of the original invoice and documentation acceptable to TOPS Products LLC that establishes the validity of Supplier's claim for underpayment. Supplier waives any claim for underpayment if a supplemental invoice and supporting documentation have not been furnished within the earlier of (i) one (1) year after the Delivery Date or performance of the services covered by the supplemental invoice, or (ii) three (3) months after the date of submission of the original invoice.Force Majeure
Neither party shall be liable for a delay in performance of its obligations and responsibilities under this Order due to causes beyond its control, and without its fault or negligence, such as but not limited to war, embargo, national emergency, insurrection or riot, acts of the public enemy, fire, flood or other natural disaster, provided that said party has taken reasonable measures to notify the other promptly in writing, of delay (but in any event, within 72 hours of the force majeure event). Time is of the essence of this Agreement, and should Supplier fail to comply with TOPS Products LLC's delivery schedule or otherwise fail to comply with its obligations hereunder, TOPS Products LLC may terminate this Order without liability. Failure of subcontractors or inability to obtain materials shall not be considered as a force majeure delay.Intellectual Property
If Supplier provides to TOPS Products LLC any development, consulting, analysis, design, computer programming, installation, testing, conversion, implementation, training, technical writing and any other services resulting in the creation or modification of any computer programs, firmware, schematics, flowcharts, drawings, specifications, documentation, reports, recommendations or other writings, information or material embodied in a tangible medium, the terms and conditions of TOPS Products LLC's Specifications D-1 (Terms for Development and Professional Services) shall apply to that Order. TOPS Products LLC shall retain a copy of the version of Specifications D-1 that was in effect at the time each Order was placed and records showing the effective dates of each version.Indemnity
Supplier shall, at Supplier's sole cost and expense, release, defend indemnify and hold TOPS Products LLC, its Affiliates, directors, officers, agents, employees, and shareholders harmless from and against all claims, demands, disputes, complaints, causes of action, suits, losses and damages (including attorneys' fees) of any kind to the extent they in any way relate to or arise, in whole or in part, due to (a) the acts or omissions of Supplier, its subcontractors, or agents or the employees of any thereof, in the performance of this Order or any breach or default hereunder or (b) a claim that the goods or services Supplier provides are dangerously defective, or (c) a claim that Supplier's products or services, or any part thereof, infringes a patent, copyright, trademark, trade secret or other intellectual or proprietary right of a third party.Insurance
Supplier shall maintain and could be requested to provide certificates of insurance from companies meeting an A.M. Best rating of at least A- VII showing that Supplier is covered by A) Workers' Compensation as required by law, including a waiver of subrogation in favor of TOPS Products LLC; B)Employers Liability and Occupational Disease insurance with limits of $500,000 per occurrence; C) Commercial General Liability, including Products and Completed Operations, with limits of not less than $2,000,000 per occurrence for bodily injury and property damage; D) Auto Liability covering all autos with a limit of $1,000,000; and E) Professional Liability with a limit of $2,000,000 per claim. The Commercial General Liability policy shall name TOPS Products LLC as an additional insured as its interest may appear, contain a cross liability (severability of interests) provision and be primary and non-contributory to any insurance available or maintained by TOPS Products LLC. Additional insurance requirements may apply under the TOPS Products LLC G-1 Specifications. No exceptions to these coverages may be made unless approved in writing by TOPS Products LLC. If requested, properly endorsed Certificates of Insurance may be sent to the following address:TOPS Products LLC
Risk Management Department
184 Shuman Blvd. Ste. #130
Naperville, IL 60563TOPS Products LLC shall not, because of accepting, rejecting, approving or receiving any certificate of insurance required hereunder, incur any liability for the existence, non-existence, form or legal sufficiency of the insurance described on such certificate; the solvency of any insurer; or the payment of losses. No provision under this section shall be construed or deemed to limit Supplier's obligations under this Agreement to pay damages or other costs and expenses.
Limitation of Liability
IN NO EVENT WILL TOPS Products LLC BE LIABLE TO SUPPLIER OR ANY THIRD PARTY, IN CONTRACT, TORT OR OTHERWISE, FOR ANY LOSS OF PROFITS OR BUSINESS, OR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, ARISING FROM OR AS A RESULT OF THESE CONTRACT TERMS, ANY ORDER OR ANY AGREEMENT BETWEEN THE PARTIES RELATING TO THE PRODUCTS, SERVICES OR DELIVERABLES SUPPLIER PROVIDES, EVEN IF TOPS Products LLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.Changes
TOPS Products LLC reserves the right to make changes in drawings, designs, specifications, scope of work to be performed, time and place of delivery and method of transportation. If such change is to be made, it will be evidenced in writing by TOPS Products LLC in the form of a change Order. If any such change has an effect on the price, warranty, delivery date or indemnification provisions of the Order, an equitable written acknowledgement of the effect on the changed provisions shall be indicated on the change Order. Supplier may not make any change in drawings, design specifications, scope of work to be performed, time and place of delivery and method of transportation without TOPS Products LLC's written Change Order acknowledging the change. Any such Change Orders accepted by Supplier shall be incorporated in and amend the Order.Packaging
Unless otherwise specified, the products Supplier sells to TOPS Products LLC shall be (a) packed, packaged, marked and otherwise prepared for shipment in a manner which is in accordance with good commercial practice, (b) acceptable to common carriers for shipment at the lowest rate for the particular goods and in accordance with applicable regulations, and (c) adequate to insure safe arrival at the named destination. Supplier agrees to mark all containers with necessary lifting, handling, and shipping information and also Order numbers, date or dates. A packing list must be enclosed in all shipments showing the Order number and exact quantity and description of the goods shipped.Risk of Loss
Regardless of the method of shipment used, Supplier agrees to deliver all product specified on the Order to the location(s) specified on the Order at Supplier's own risk. Supplier shall bear the risk of loss, destruction or damage until the items are accepted by TOPS Products LLC.Delivery
Time is of the essence. Supplier agrees to comply with TOPS Products LLC's shipping, delivery, installation or startup schedules (as applicable) without any delay and without anticipating TOPS Products LLC's requirements, and shall comply with the provisions and follow the procedures outlined in the TOPS Products LLC Inbound Routing Guide that has been provided separately to Supplier or is available upon request. Shipments must equal the exact amounts identified in the Order and no partial shipments or runt cartons, changes or substitutions in specifications may be made without TOPS Products LLC's prior written consent. TOPS Products LLC's acceptance of late shipments or partial shipments shall not constitute a waiver of any of TOPS Products LLC's rights to collect damages for goods not delivered or for late delivery. Supplier shall report to TOPS Products LLC any delays in a schedule immediately as they become known to Supplier. TOPS Products LLC reserve the right to cancel the Order and effect cover if Supplier cannot comply with the schedule(s) indicated on the Order. If dates are not specified on the Order, Supplier shall procure materials, fabricate, assemble and ship goods or provide services only as authorized by shipment releases TOPS Products LLC issues to Supplier. TOPS Products LLC may return overshipments to Supplier at Supplier's expense for all packing, handling, sorting and transportation. TOPS Products LLC may from time to time, and with reasonable notice, suspend schedules specified in the Order or such shipment releases. If it becomes necessary for Supplier to ship by a more expensive mode than specified on the Order in order to meet a schedule, Supplier shall pay any resulting premium transportation cost unless Supplier can establish to TOPS Products LLC's satisfaction that the necessity for the change in routing is occasioned by force majeure events.Acceptance
Payment by TOPS Products LLC for the products or services delivered hereunder shall not constitute TOPS Products LLC's acceptance. TOPS Products LLC retains the right to inspect the products or services performed and to reject any or all of the products or services performed which are in TOPS Products LLC's judgment defective, as well as the right to inspect Supplier's manufacturing operations, handling and storage of products and raw material, including the equipment used to manufacture the products. TOPS Products LLC will give Supplier reasonable notice of any planned Supplier site visit. No inspection or test made prior to final acceptance shall relieve Supplier for defects or other failure to meet the requirements of this Agreement. Products rejected by TOPS Products LLC and products supplied in excess of quantities called for herein may be returned to Supplier at Supplier's expense. In addition to TOPS Products LLC's other rights, TOPS Products LLC may charge Supplier all expenses of unpacking, examining, repacking, and reshipping such goods. In the event TOPS Products LLC receive goods whose defects or nonconformity is not apparent on examination, resulting in deterioration of TOPS Products LLC's finished product, TOPS Products LLC reserves the right to require the replacement, as well as payment of any resulting damages. When a shipment is rejected based upon TOPS Products LLC's inspection, and such rejection increases the risk of jeopardizing TOPS Products LLC's production schedules by reason of the fact that at least some of the products are necessary to meet such production schedules, then TOPS Products LLC, at its option, may charge Supplier for the reasonable costs of an increased level of inspection up to and including inspection of each of the products comprising such shipment.TOPS Products LLC Property
Any material or parts furnished by TOPS Products LLC intended for use by Supplier in Supplier's execution of Supplier's duties as required by this Order are held by Supplier on consignment. All such materials or parts not used by Supplier in connection with this Order shall be returned to TOPS Products LLC at TOPS Products LLC's expense unless Supplier is otherwise directed in writing. If not accounted for or not returned to TOPS Products LLC, Supplier shall pay or reimburse TOPS Products LLC for such materials or parts. All such materials or parts will be kept insured by Supplier at Supplier's expense in an amount equal to the replacement cost with a loss payable to TOPS Products LLC.Assignment/Delegation/Subcontracting
Supplier may not assign, delegate, subcontract or transfer any Order, the work required to be done or any payments to be made hereunder without TOPS Products LLC's prior written approval. In the event of agreed delegation or subcontracting, Supplier shall continue to be liable with respect to all of the obligations or liabilities assumed by it hereunder and hereby guarantees satisfactory performance of the Agreement, if any, by its delegate or subcontractor. Supplier shall enter into a written agreement with any permitted subcontractor, which, at a minimum, meets the insurance requirements of these Contract Terms and includes provisions protecting TOPS Products LLC's Confidential Information in a manner consistent with the terms of this Agreement. All claims for monies due or to become due from TOPS Products LLC shall be subject to deduction by TOPS Products LLC for any setoff or counterclaim arising out of this or any other Orders with Supplier whether such setoff or counterclaim arise before or after such assignment, delegation, subcontracting or transfer by Supplier.Export/Import
Any export credits belong to TOPS Products LLC, and Supplier shall furnish all documents required for international shipments, and upon request, all documents required by TOPS Products LLC to obtain export credits and customs drawback and remission. Supplier shall include a priced invoice with the master packing slip for international shipments. Upon TOPS Products LLC's request, Supplier shall furnish certificates that identify the country of origin of the materials used in the goods TOPS Products LLC purchase from Supplier and the value added thereto in each country.On-Site Services
If Supplier performs any services at one of TOPS Products LLC's sites, TOPS Products LLC reserve the right to interview and accept or reject any personnel Supplier provide prior to assignment to TOPS Products LLC's facility. TOPS Products LLC may require any such personnel to pass a drugscreening test that TOPS Products LLC administers. Supplier agrees to employ only competent and skilled personnel to perform the services and shall use all reasonable means to ensure the continued employment of personnel performing services pursuant to this Order. Upon TOPS Products LLC's request, Supplier will immediately remove from all facilities and replace any personnel who are unsatisfactory to TOPS Products LLC for any reason. Supplier warrants that all Supplier personnel assigned to the TOPS Products LLC facility shall have a prior satisfactory work record in a responsible capacity; have no job-related criminal convictions; and be legally authorized to work in the United States. Employment authorization shall be verified through E-verify. Supplier personnel will be capable of performing the essential functions of the job for which they are hired, with or without a reasonable accommodation. If Supplier is or becomes a party to any collective bargaining agreement regarding contracted personnel, no provision in that agreement shall be binding upon TOPS Products LLC, unless otherwise required by law. Supplier further agrees, while Supplier's personnel are on TOPS Products LLC's premises, that they will abide by TOPS Products LLC's normal rules of work. Supplier further agrees to comply with all environmental, health and safety provisions contained in TOPS Products LLC Specifications 'RPM - Regulated Products and Materials' and G1. A Supplier representative shall participate in an initial and annual review of the TOPS Products LLC Contractor EHS Program and shall advise and cause all personnel and subcontractors who perform Services at the site to comply with the requirements of the program. The governing version shall be the version in effect as of the date of the Order or at the time of the annual review. TOPS Products LLC shall retain copies of all versions of the documents referenced above and records showing the effective dates of each version.Compliance With Laws
General. Supplier shall comply with all laws applicable in any jurisdiction in which any products or services are produced for, or delivered or provided to TOPS Products LLC.
Environmental, Health and Safety Compliance. Supplier also represents and warrants that Products it supplies or delivers under this Agreement shall comply with all applicable national and international environmental, health, safety or product safety laws, regulations, treaties or other legal requirements relating to the manufacture, distribution, use and sale of the Products, including those requirements relating to the presence or use of chemicals or other materials in products (including but not limited to the laws and regulations of the United States (e.g., the Toxic Substances Control Act, the European Union (e.g., the Directive on the Restrictions on use of Hazardous Substances in Electrical and Electronic Equipment) and international law (e.g., the Montreal Protocol relating to ozone-depleting substances). Supplier shall obtain a similar agreement from all of its subcontractors. Supplier agrees to obtain and , including test reports prepared by certified and accredited testing laboratories relating to lead, phthalates and heavy metals content in the Products, to enable TOPS Products LLC to ensure its own compliance with product safety laws, and to confirm compliance with this provision or to determine the environmental, health or safety effects of materials or chemicals contained in or used by a Product provided to or delivered on behalf TOPS Products LLC by Supplier. Supplier also agrees to indemnify TOPS Products LLC against any loss, expense and penalty incurred by TOPS Products LLC as the result of Supplier's failure to comply with this provision.
Anticorruption Laws. Supplier further represents and warrants that in the performance of this Agreement Supplier and its employees and agents will not violate federal, national, local or other anticorruption laws (including provisions of the U.S. Foreign Corrupt Practices Act or the U.K. Bribery Act, collectively "Anti-Corruption Laws") that may be applicable to one or both parties to this Agreement, and have not previously engaged in conduct that would have violated Anti-Corruption Laws, including but not limited to obtaining or retaining business or a business advantage through unlawful payments, bribes, kickbacks, gifts, or other illegal inducements. Supplier shall maintain anti-bribery policies and procedures and true and accurate records consistent with the requirements of the applicable Anti- Corruption Laws. Supplier agrees to immediately notify TOPS Products LLC if it violates any Anti- Corruption Laws in the performance of this Agreement.
Federal Acquisition Regulations. To the extent this Order is placed under an TOPS Products LLC prime contract with the Federal Government, the provisions of Sections 52.219-8, 52.222-26, 52.222- 35, 52.222-36, 52.222-54 and 52.247-64 of the Federal Acquisition Regulation ("FAR") in their version in effect as of the date this Order is placed are incorporated herein by reference with the same force and effect as if set forth herein. The full text of these FAR clauses may be accessed electronically at the following Internet website: https://www.acquisition.gov/far/. The following changes to the FAR clauses are made for incorporation of these clauses in this Order: "Contractor" shall mean "Supplier"; "Contracting Officer" shall mean "TOPS Products LLC's Purchasing Representative."; "Contract" shall mean this "Purchase Order."; "Government" shall mean "TOPS Products LLC." and "Subcontractor" shall mean "Supplier's subcontractor." Supplier is not required to comply with the FAR clauses cited herein, except for FAR 52.247-64, with regard to Supplier's work performed outside the United States by employees who were not recruited within the United States.
Employment Regulations. The parties hereby incorporate the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a), if applicable. These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability.
Business Records. Supplier agrees to maintain accurate business records relating to Supplier's compliance with the foregoing laws, rules and regulations, and to retain the same for a period of at least five (5) years from the date of the last invoice issued to TOPS Products LLC. All such records, books and information may be audited or inspected by TOPS Products LLC representatives upon reasonable notice at all reasonable times.
Supplemental Terms
Additional terms and conditions, as outlined below, may apply to Products or Services provided by Supplier to TOPS Products LLC, depending on the nature of the Products or Services. These terms, as well as the other documents referenced in this Section, are listed and available on TOPS Products LLC's Supplier Info page. The version governing this Agreement shall be the version in effect as of the Effective Date or at the time of the annual review. TOPS Products LLC shall retain copies of all versions of the documents referenced above during the term of this Agreement and records showing the effective dates of each version.If Supplier sells Products to TOPS Products LLC that include any food, drug, cosmetic or medical device, or consumer product, the terms of RPM (Regulated Product and Materials) Safety Specifications shall apply to such purchases.
If Supplier performs any design, development or other professional Services to TOPS Products LLC, the terms of Specification D-1 shall apply to such Services.
For Services performed at an TOPS Products LLC site, Supplier shall conform to all EHS provisions contained in Specifications 'RPM - Regulated Products and Materials', G1 and the TOPS Products LLC Contractor EHS Program. A Supplier representative shall participate in an initial and annual review of the TOPS Products LLC Contractor EHS Program and shall advise and cause all personnel and subcontractors who perform Services at the site to comply with the requirements of the program.
If Supplier's Services include the receipt, storage, maintenance or processing of, or if Supplier is otherwise granted access to, Protected Health Information or Personal Information or is otherwise involved in the administration of certain Medicare-related products or services, the terms of Specification H-1 shall apply to such Services. The terms "Protected Health Information" or "Personal Information" are defined in Specification H-1.
Remedies
TOPS Products LLC's remedies shall be cumulative and shall include any remedies allowed by law. Waiver of any breach by TOPS Products LLC shall not constitute TOPS Products LLC's waiver of any other breach of the same or any other provision. Acceptance of any items or payments therefore shall not waive any breach.Governing Law/Submission To Jurisdiction
This agreement shall be construed in accordance with the laws governing contracts made and to be performed in the State of Illinois, U.S.A., exclusive of the U.N. Convention on the International Sale of Goods. Supplier hereby consents to the jurisdiction of any local, state, or federal court located within the State of Illinois and waives any objection which Supplier may have based on improper venue or forum non conveniens to the conduct of any proceeding in any such court.Language
The parties confirm that it is their wish that these Contract Terms, as well as any other documents relating hereto, including all Orders, notices, schedules, authorizations, attachments and amendments, have been and shall be drawn up in the English language only. Les parties confirment que c'est leur volente expresse que ce contrat et tous documents y etant relatif, y compris les bons de commande, les avis, les annexes, les autorisations, les pieces jointes et les amendements soient rediges en langue anglais seulement.Entire Agreement
This Agreement and associated documents referenced herein constitute the entire agreement between the parties with respect to the subject matter hereof; all prior agreements, representations, statements, negotiations and undertakings, whether oral or written, are superseded hereby. In the event TOPS Products LLC acquires, is acquired by or merges with another company that has a written contract with Supplier, or otherwise assumes a contract between Supplier and the acquiring, acquired or merging company (each, a "Legacy Contract"), TOPS Products LLC may at its sole option terminate the Legacy Contract by written notice and elect to have this Agreement govern all transactions between Supplier and TOPS Products LLC and its Affiliates from and after the date given in the notice.
PURCHASE ORDER TERMS & CONDITIONS - CANADA
Revised November 16, 2015, revised December 2020 for TOPS Products LLC
Acceptance
These terms and conditions and the documents referred to herein govern all Purchase Orders ("Orders") issued by LSC Communications LLC Canada Corporation or one of its subsidiaries located in Canada to the Supplier identified on each Order. Fulfillment of any part of an Order, or any other conduct by Supplier which recognizes the existence of a contract pertaining to the subject matter of such Order, shall constitute acceptance by Supplier of such Order and all of the terms and conditions included or referenced on this page (the "Contract Terms"). LSC Communications LLC Canada Corporation objects to any terms proposed in Supplier's proposal, sales note, acknowledgment or other form of acceptance of LSC Communications LLC Canada Corporation's offer which add to, vary from, or conflict with the Contract Terms. Any such proposed terms shall be void and the Contract Terms constitute the complete and exclusive statement of the terms and conditions between Supplier and LSC Communications LLC Canada Corporation. The Contract Terms may be modified only by a written instrument executed by authorized representatives of both Supplier and LSC Communications LLC Canada Corporation. If an Order has been issued by LSC Communications LLC Canada Corporation in response to Supplier's offer and if any of the Contract Terms add to, vary from or conflict with any terms of Supplier's offer, then the issuance of the Order by LSC Communications LLC Canada Corporation shall constitute an acceptance of Supplier's offer subject to the express conditions that Supplier assents to the additional, different and conflicting Contract Terms and acknowledges that the Order and these Contracts Terms constitutes the entire agreement between Supplier and LSC Communications LLC Canada Corporation with respect to the subject matter hereof and the subject matter of Supplier's offer. Supplier shall be deemed to have accepted the contract terms unless Supplier notifies LSC Communications LLC Canada Corporation to the contrary in writing signed by Supplier's authorized representative within one (1) working day after receipt of the Order.Termination
LSC Communications LLC Canada Corporation may terminate for convenience at any time by written notice any Order, or its obligation to purchase any products or services from Supplier. If an Order is terminated for convenience, then the termination date shall be not less than 10 days from the date of notice, unless otherwise mutually agreed to by the parties, except that if LSC Communications LLC Canada Corporation has reasonable cause to believe that Supplier failed to comply with any Anticorruption Laws (see Section 24), LSC Communications LLC Canada Corporation may in its sole discretion terminate this Agreement with immediate effect upon written notice to Supplier. LSC Communications LLC Canada Corporation shall pay for any products delivered or services performed prior to the date that termination becomes effective (on a pro rata basis if LSC Communications LLC Canada Corporation has paid in advance any fees covering a fixed period of Services). Unless LSC Communications LLC Canada Corporation has requested and received a refund in respect of any undelivered product(s) or terminated services, it shall be entitled to the delivery of all product(s) and completion of all services for which it has paid prior to the effective date of the termination. In addition to any other remedy provided at law or equity, either party shall have the right to terminate or cancel an Order, and any obligation to purchase, sell or provide a product or service, in the event the other party (a) fails to comply with any condition of the Order or any related Agreement, and such failure is not remedied within thirty (30) days after written notice thereof has been given to such other party; (b) becomes insolvent, makes an assignment for the benefit of creditors, suffers or permits the appointment of a receiver, trustee in bankruptcy or similar officer for all or parts of its business or assets; or (c) avails itself of or becomes subject to any bankruptcy proceeding under the laws or any jurisdiction relating to insolvency or the protection of rights of creditors.Confidentiality
All specifications, documents, artwork, or drawings delivered to Supplier by LSC Communications LLC Canada Corporation, and any other non-public information LSC Communications LLC Canada Corporation discloses to Supplier, remains LSC Communications LLC Canada Corporation's property. The information is provided to Supplier solely for the purpose of Supplier's performance of the Order and on the express condition that neither the Order nor the information contained therein or provided in connection therewith shall be disclosed to others nor used for any purpose other than in connection with the Order without LSC Communications LLC Canada Corporation's prior express written consent. LSC Communications LLC Canada Corporation reserves the right to request that Supplier return all such information to LSC Communications LLC Canada Corporation or destroy it. Supplier's obligations under this paragraph shall survive the cancellation, termination or other completion of the Order.Warranty
Supplier expressly warrants that all products and services supplied to LSC Communications LLC Canada Corporation by Supplier as a result of an Order shall conform to the specifications, drawings or other description upon which the Order is based, shall be fit and sufficient for the purpose intended, merchantable, of good material and workmanship, free from defects and free and clear of all liens or encumbrances. Inspection, testing, acceptance or use of the goods by LSC Communications LLC Canada Corporation shall not affect Supplier's obligations under this warranty, and such warranty shall survive inspection, testing, acceptance and use. Supplier agrees to replace or correct promptly defects of any goods or services not conforming to the foregoing warranty without expense to LSC Communications LLC Canada Corporation, when notified of such non-conformity by LSC Communications LLC Canada Corporation. If Supplier fails to correct defects in or replace non-conforming goods or services promptly, LSC Communications LLC Canada Corporation may, after reasonable notice to Supplier, make such corrections or effect cover at Supplier's expense.Price
An Order must not be filled at a higher price than shown on the Order. Unless another currency is specified on the order, all monetary amounts are deemed to be expressed in Canadian dollars. If no price is shown, Supplier must notify the LSC Communications LLC Canada Corporation Buyer who issued the Order of the price and his/her acceptance must be obtained in writing before filling the Order. The price shall not in any event be higher than the lowest price Supplier provides to any of Supplier's other customers ordering similar quantities, after taking into consideration all rebates, discounts and allowances. Unless otherwise provided on the Order, delivery of Goods shall be f.o.b. destination and Supplier will not charge for boxing, packing, crating or other charges. Supplier's prices include any and all related customs duty. If Supplier sells products to LSC Communications LLC Canada Corporation, or if the services include provision to LSC Communications LLC Canada Corporation of any deliverables, subject to any customs duty, Supplier's prices include any and all related customs duty.Taxes
LSC Communications LLC Canada Corporation will not be liable for any taxes with respect to an Order, except for sales, use, retailers occupation, service occupation, excise, ad valorem, value added, or consumption taxes imposed by any governmental authority for the purchase of the products Supplier supplies, which Supplier is required by law to collect from LSC Communications LLC Canada Corporation. Supplier shall not collect or remit, and LSC Communications LLC Canada Corporation shall not be liable for, any such taxes if LSC Communications LLC Canada Corporation has provided Supplier with a tax exemption certificate. LSC Communications LLC Canada Corporation also will not be liable for any taxes of any nature based on the income of Supplier. If LSC Communications LLC Canada Corporation is required by the law of any jurisdiction to withhold any taxes, duties, fees, levies, or charges ("Withholding Taxes") from any fees or other charges (including reimbursement of expenses) paid to Supplier, LSC Communications LLC Canada Corporation will be entitled to deduct the amount of such Withholding Taxes from the amount of such fees or other charges (including reimbursement of expenses). If Supplier is either exempt from withholding or entitled to a reduced rate of withholding pursuant to a tax treaty or other applicable law, and provides LSC Communications LLC Canada Corporation with adequate documentation of such exemption from or reduced rate of withholding, LSC Communications LLC Canada Corporation will be entitled to withhold only such Withholding Taxes from which Supplier is not exempt. In case of doubt by LSC Communications LLC Canada Corporation as to LSC Communications LLC Canada Corporation's liability for any such tax, Supplier shall allow LSC Communications LLC Canada Corporation, at LSC Communications LLC Canada Corporation's expense, to assume control of any litigation or proceeding relating to the determination and settlement of such tax. LSC Communications LLC Canada Corporation shall, upon final settlement of such litigation and proceeding, reimburse Supplier for any tax owing including in the amount to be reimbursed, any interest charges and penalties accruing thereon.Invoices
Supplier agrees to issue invoices referencing the Order number, line number (where applicable), release number (where applicable), item number, description of items, sizes, quantities, unit prices and extended totals. If an Order contains more than one item, Supplier's invoice will make the proper reference. Taxes, if any that are to be collected by Supplier shall be stated separately and shall be remitted by Supplier to the appropriate taxing authority. All invoices shall comply with the requirements of each relevant taxing authority and shall contain data and registration numbers that will enable LSC Communications LLC Canada Corporation to obtain appropriate credit for any Taxes charged. All invoices shall be sent to the email or street address on the Order. Failure to comply with the above may result in delayed payment or returned invoices.Payment
As full consideration for Supplier's satisfactory provision of the products or performance of the services, LSC Communications LLC Canada Corporation will pay Supplier's invoice not later than seventy- five (75) days following LSC Communications LLC Canada Corporation's receipt of said invoice. LSC Communications LLC Canada Corporation's payment of any such invoice shall constitute full and complete satisfaction of any and all actual and potential fees for the billing period covered by the invoice. Partial payments will not be made, unless LSC Communications LLC Canada Corporation agrees otherwise in writing. All payment terms will be calculated based upon date of invoice and payment terms will be considered satisfied based upon date of postmark of payment, or if EFT payment, date of transmission. LSC Communications LLC Canada Corporation shall receive invoices within three (3) business days of invoice date.Presumptions
Supplier shall be conclusively presumed to have waived Supplier's right to receive payment for products or services covered by any Order if Supplier has not submitted an invoice for the products or services within one (1) year of the date of the Order. Supplier's submission of an invoice shall give rise to a presumption that the charges are the full amount Supplier is due for the products or services listed on or referred to in the invoice for the purpose of determining the existence of any underpayment. Supplier may submit supplemental invoices only if accompanied by a photocopy of the original invoice and documentation acceptable to LSC Communications LLC Canada Corporation that establishes the validity of Supplier's claim for underpayment. Supplier waives any claim for underpayment if a supplemental invoice and supporting documentation have not been furnished within the earlier of (i) one (1) year after the Delivery Date or performance of the services covered by the supplemental invoice, or (ii) three (3) months after the date of submission of the original invoice.Force Majeure
Neither party shall be liable for a delay in performance of its obligations and responsibilities under this Order due to causes beyond its control, and without its fault or negligence, such as but not limited to war, embargo, national emergency, insurrection or riot, acts of the public enemy, fire, flood or other natural disaster, provided that said party has taken reasonable measures to notify the other promptly in writing, of delay (but in any event, within 72 hours of the force majeure event). Time is of the essence of this Agreement, and should Supplier fail to comply with LSC Communications LLC Canada Corporation's delivery schedule or otherwise fail to comply with its obligations hereunder, LSC Communications LLC Canada Corporation may terminate this Order without liability. Failure of subcontractors or inability to obtain materials shall not be considered as a force majeure delay.Intellectual Property
If Supplier provides to LSC Communications LLC Canada Corporation any development, consulting, analysis, design, computer programming, installation, testing, conversion, implementation, training, technical writing and any other services resulting in the creation or modification of any computer programs, firmware, schematics, flowcharts, drawings, specifications, documentation, reports, recommendations or other writings, information or material embodied in a tangible medium, the terms and conditions of LSC Communications LLC Canada Corporation's Specifications D-1 (Terms for Development and Professional Services) shall apply to that Order. LSC Communications LLC Canada Corporation shall retain a copy of the version of Specifications D-1 that was in effect at the time each Order was placed and records showing the effective dates of each version.Indemnity
Supplier shall, at Supplier's sole cost and expense, release, defend indemnify and hold LSC Communications LLC Canada Corporation, its Affiliates, directors, officers, agents, employees, and shareholders harmless from and against all claims, demands, disputes, complaints, causes of action, suits, losses and damages (including attorneys' fees) of any kind to the extent they in any way relate to or arise, in whole or in part, due to (a) the acts or omissions of Supplier, its subcontractors, or agents or the employees of any thereof, in the performance of this Order or any breach or default hereunder or (b) a claim that the goods or services Supplier provides are dangerously defective, or (c) a claim that Supplier's products or services, or any part thereof, infringes a patent, copyright, trademark, trade secret or other intellectual or proprietary right of a third party.Insurance
Supplier shall maintain and could be requested to provide certificates of insurance from companies meeting an A.M. Best rating of at least A- VII showing that Supplier is covered by A) Workers' Compensation Insurance or Workplace Safety & Insurance coverage with the applicable Provincial or Territorial Workplace Safety & Insurance Board ; B)Employers Liability and Occupational Disease insurance with limits of $500,000 per occurrence; C) Commercial General Liability, including Products and Completed Operations, with limits of not less than $2,000,000 per occurrence for bodily injury and property damage; D) Auto Liability covering all autos with a limit of $1,000,000; and E) Professional Liability with a limit of $2,000,000 per claim. The Commercial General Liability policy shall name LSC Communications LLC Canada Corporation as an additional insured as its interest may appear, contain a cross liability (severability of interests) provision and be primary and non-contributory to any insurance available or maintained by LSC Communications LLC Canada Corporation. Additional insurance requirements may apply under the LSC Communications LLC Canada Corporation G-1 Specifications. No exceptions to these coverages may be made unless approved in writing by LSC Communications LLC Canada Corporation. If requested, properly endorsed Certificates of Insurance may be sent to the following address:TOPS Products LLC
Risk Management Department
191 West Wacker Drive
Chicago, Illinois 60601LSC Communications LLC Canada Corporation shall not, because of accepting, rejecting, approving or receiving any certificate of insurance required hereunder, incur any liability for the existence, non- existence, form or legal sufficiency of the insurance described on such certificate; the solvency of any insurer; or the payment of losses. No provision under this section shall be construed or deemed to limit Supplier's obligations under this Agreement to pay damages or other costs and expenses.
Limitation of Liability
IN NO EVENT WILL LSC Communications LLC Canada CORPORATION BE LIABLE TO SUPPLIER OR ANY THIRD PARTY, IN CONTRACT, TORT OR OTHERWISE, FOR ANY LOSS OF PROFIT OR BUSINESS, OR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, ARISING FROM OR AS A RESULT OF THESE CONTRACT TERMS, ANY ORDER OR ANY AGREEMENT BETWEEN THE PARTIES RELATING TO THE PRODUCTS, SERVICES OR DELIVERABLES SUPPLIER PROVIDES, EVEN IF LSC Communications LLC Canada CORPORATION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.Changes
LSC Communications LLC Canada Corporation reserves the right to make changes in drawings, designs, specifications, scope of work to be performed, time and place of delivery and method of transportation. If such change is to be made, it will be evidenced in writing by LSC Communications LLC Canada Corporation in the form of a change Order. If any such change has an effect on the price, warranty, delivery date or indemnification provisions of the Order, an equitable written acknowledgement of the effect on the changed provisions shall be indicated on the change Order. Supplier may not make any change in drawings, design specifications, scope of work to be performed, time and place of delivery and method of transportation without LSC Communications LLC Canada Corporation's written Change Order acknowledging the change. Any such Change Orders accepted by Supplier shall be incorporated in and amend the Order.Packaging
Unless otherwise specified, the products Supplier sells to LSC Communications LLC Canada Corporation shall be (a) packed, packaged, marked and otherwise prepared for shipment in a manner which is in accordance with good commercial practice, (b) acceptable to common carriers for shipment at the lowest rate for the particular goods and in accordance with applicable regulations, and (c) adequate to insure safe arrival at the named destination. Supplier agrees to mark all containers with necessary lifting, handling, and shipping information and also Order numbers, date or dates. A packing list must be enclosed in all shipments showing the Order number and exact quantity and description of the goods shipped.Risk of Loss
Regardless of the method of shipment used, Supplier agrees to deliver all product specified on the Order to the location(s) specified on the Order at Supplier's own risk. Supplier shall bear the risk of loss, destruction or damage until the items are accepted by LSC Communications LLC Canada Corporation.Delivery
Time is of the essence. Supplier agrees to comply with LSC Communications LLC Canada Corporation's shipping, delivery, installation or startup schedules (as applicable) without any delay and without anticipating LSC Communications LLC Canada Corporation's requirements, and shall comply with the provisions and follow the procedures outlined in the LSC Communications LLC Canada Corporation Inbound Routing Guide that has been provided separately to Supplier or is available upon request. Shipments must equal the exact amounts identified in the Order and no partial shipments or runt cartons, changes or substitutions in specifications may be made without LSC Communications LLC Canada Corporation's prior written consent. LSC Communications LLC Canada Corporation's acceptance of late shipments or partial shipments shall not constitute a waiver of any of LSC Communications LLC Canada Corporation's rights to collect damages for goods not delivered or for late delivery. Supplier shall report to LSC Communications LLC Canada Corporation any delays in a schedule immediately as they become known to Supplier. LSC Communications LLC Canada Corporation reserve the right to cancel the Order and effect cover if Supplier cannot comply with the schedule(s) indicated on the Order. If dates are not specified on the Order, Supplier shall procure materials, fabricate, assemble and ship goods or provide services only as authorized by shipment releases LSC Communications LLC Canada Corporation issues to Supplier. LSC Communications LLC Canada Corporation may return overshipments to Supplier at Supplier's expense for all packing, handling, sorting and transportation. LSC Communications LLC Canada Corporation may from time to time, and with reasonable notice, suspend schedules specified in the Order or such shipment releases. If it becomes necessary for Supplier to ship by a more expensive mode than specified on the Order in order to meet a schedule, Supplier shall pay any resulting premium transportation cost unless Supplier can establish to LSC Communications LLC Canada Corporation's satisfaction that the necessity for the change in routing is occasioned by force majeure events.Acceptance
Payment by LSC Communications LLC Canada Corporation for the products or services delivered hereunder shall not constitute LSC Communications LLC Canada Corporation's acceptance. LSC Communications LLC Canada Corporation retains the right to inspect the products or services performed and to reject any or all of the products or services performed which are in LSC Communications LLC Canada Corporation's judgment defective, as well as the right to inspect Supplier's manufacturing operations, handling and storage of products and raw material, including the equipment used to manufacture the products. LSC Communications LLC Canada Corporation will give Supplier reasonable notice of any planned Supplier site visit. No inspection or test made prior to final acceptance shall relieve Supplier for defects or other failure to meet the requirements of this Agreement. Products rejected by LSC Communications LLC Canada Corporation and products supplied in excess of quantities called for herein may be returned to Supplier at Supplier's expense. In addition to LSC Communications LLC Canada Corporation's other rights, LSC Communications LLC Canada Corporation may charge Supplier all expenses of unpacking, examining, repacking, and reshipping such goods. In the event LSC Communications LLC Canada Corporation receive goods whose defects or nonconformity is not apparent on examination, resulting in deterioration of LSC Communications LLC Canada Corporation's finished product, LSC Communications LLC Canada Corporation reserves the right to require the replacement, as well as payment of any resulting damages. When a shipment is rejected based upon LSC Communications LLC Canada Corporation's inspection, and such rejection increases the risk of jeopardizing LSC Communications LLC Canada Corporation's production schedules by reason of the fact that at least some of the products are necessary to meet such production schedules, then LSC Communications LLC Canada Corporation, at its option, may charge Supplier for the reasonable costs of an increased level of inspection up to and including inspection of each of the products comprising such shipment.LSC Communications LLC Canada Corporation Property
Any material or parts furnished by LSC Communications LLC Canada Corporation intended for use by Supplier in Supplier's execution of Supplier's duties as required by this Order are held by Supplier on consignment. All such materials or parts not used by Supplier in connection with this Order shall be returned to LSC Communications LLC Canada Corporation at LSC Communications LLC Canada Corporation's expense unless Supplier is otherwise directed in writing. If not accounted for or not returned to LSC Communications LLC Canada Corporation, Supplier shall pay or reimburse LSC Communications LLC Canada Corporation for such materials or parts. All such materials or parts will be kept insured by Supplier at Supplier's expense in an amount equal to the replacement cost with a loss payable to LSC Communications LLC Canada Corporation.Assignment/Delegation/Subcontracting
Supplier may not assign, delegate, subcontract or transfer any Order, the work required to be done or any payments to be made hereunder without LSC Communications LLC Canada Corporation's prior written approval. In the event of agreed delegation or subcontracting, Supplier shall continue to be liable with respect to all of the obligations or liabilities assumed by it hereunder and hereby guarantees satisfactory performance of the Agreement, if any, by its delegate or subcontractor. Supplier shall enter into a written agreement with any permitted subcontractor, which, at a minimum, meets the insurance requirements of these Contract Terms and includes provisions protecting LSC Communications LLC Canada Corporation's Confidential Information in a manner consistent with the terms of this Agreement. All claims for monies due or to become due from LSC Communications LLC Canada Corporation shall be subject to deduction by LSC Communications LLC Canada Corporation for any setoff or counterclaim arising out of this or any other Orders with Supplier whether such setoff or counterclaim arise before or after such assignment, delegation. subcontracting or transfer by Supplier.Export/Import
Any export credits belong to LSC Communications LLC Canada Corporation, and Supplier shall furnish all documents required for international shipments, and upon request, all documents required by LSC Communications LLC Canada Corporation to obtain export credits and customs drawback and remission. Supplier shall include a priced invoice with the master packing slip for international shipments. Upon LSC Communications LLC Canada Corporation's request, Supplier shall furnish certificates that identify the country of origin of the materials used in the goods LSC Communications LLC Canada Corporation purchase from Supplier and the value added thereto in each country.On-Site Services
If Supplier performs any services at one of LSC Communications LLC Canada Corporation's sites, LSC Communications LLC Canada Corporation reserve the right to interview and accept or reject any personnel Supplier provide prior to assignment to LSC Communications LLC Canada Corporation's facility. LSC Communications LLC Canada Corporation may require any such personnel to pass a drug screening test that LSC Communications LLC Canada Corporation administers. Supplier agrees to employ only competent and skilled personnel to perform the services and shall use all reasonable means to ensure the continued employment of personnel performing services pursuant to this Order. Upon LSC Communications LLC Canada Corporation's request, Supplier will immediately remove from all facilities and replace any personnel who are unsatisfactory to LSC Communications LLC Canada Corporation for any reason. Supplier warrants that all Supplier personnel assigned to the LSC Communications LLC Canada Corporation facility shall have a prior satisfactory work record in a responsible capacity; have no job-related criminal convictions; and be legally authorized to work in the United States. Employment authorization shall be verified through E-verify. Supplier personnel will be capable of performing the essential functions of the job for which they are hired, with or without a reasonable accommodation. If Supplier is or becomes a party to any collective bargaining agreement regarding contracted personnel, no provision in that agreement shall be binding upon LSC Communications LLC Canada Corporation, unless otherwise required by law. Supplier further agrees, while Supplier's personnel are on LSC Communications LLC Canada Corporation's premises, that they will abide by LSC Communications LLC Canada Corporation's normal rules of work. Supplier further agrees to comply with all environmental, health and safety provisions contained in TOPS Products LLC's Specifications 'RPM - Regulated Products and Materials' and G1. A Supplier representative shall participate in an initial and annual review of the LSC Communications LLC Canada Corporation Contractor EHS Program and shall advise and cause all personnel and subcontractors who perform Services at the site to comply with the requirements of the program. The governing version shall be the version in effect as of the date of the Order or at the time of the annual review. LSC Communications LLC Canada Corporation shall retain copies of all versions of the documents referenced above and records showing the effective dates of each version.Compliance With Laws
General. Supplier shall comply with all laws applicable in any jurisdiction in which any products or services are produced for, or delivered or provided to LSC Communications LLC Canada Corporation.
Environmental, Health and Safety Compliance. Supplier also represents and warrants that Products it supplies or delivers under this Agreement shall comply with all applicable national and international environmental, health, safety or product safety laws, regulations, treaties or other legal requirements relating to the manufacture, distribution, use and sale of the Products, including those requirements relating to the presence or use of chemicals or other materials in products (including but not limited to the laws and regulations of the United States (e.g., the Toxic Substances Control Act, the European Union (e.g., the Directive on the Restrictions on use of Hazardous Substances in Electrical and Electronic Equipment) and international law (e.g., the Montreal Protocol relating to ozone-depleting substances). Supplier shall obtain a similar agreement from all of its subcontractors. Supplier agrees to obtain and furnish any information reasonably requested by LSC Communications LLC Canada Corporation, including test reports prepared by certified and accredited testing laboratories relating to lead, phthalates and heavy metals content in the Products, to enable LSC Communications LLC Canada Corporation to ensure its own compliance with product safety laws, and to confirm compliance with this provision or to determine the environmental, health or safety effects of materials or chemicals contained in or used by a Product provided to or delivered on behalf LSC Communications LLC Canada Corporation by Supplier. Supplier also agrees to indemnify LSC Communications LLC Canada Corporation against any loss, expense and penalty incurred by LSC Communications LLC Canada Corporation as the result of Supplier's failure to comply with this provision.
Anticorruption Laws. Supplier further represents and warrants that in the performance of this Agreement Supplier and its employees and agents will not violate federal, national, local or other anti- corruption laws (including provisions of the U.S. Foreign Corrupt Practices Act or the U.K. Bribery Act, collectively "Anti-Corruption Laws") that may be applicable to one or both parties to this Agreement, and have not previously engaged in conduct that would have violated Anti-Corruption Laws, including but not limited to obtaining or retaining business or a business advantage through unlawful payments, bribes, kickbacks, gifts, or other illegal inducements. Supplier shall maintain anti-bribery policies and procedures and true and accurate records consistent with the requirements of the applicable Anti- Corruption Laws. Supplier agrees to immediately notify LSC Communications LLC Canada Corporation if it violates any Anti-Corruption Laws in the performance of this Agreement
Federal Acquisition Regulations. To the extent this Order is placed under an LSC Communications LLC Canada Corporation prime contract with the Federal Government, the provisions of Sections 52.219-8, 52.222-26, 52.222-35, 52.222-36, 52.222-54 and 52.247-64 of the Federal Acquisition Regulation ("FAR") in their version in effect as of the date this Order is placed are incorporated herein by reference with the same force and effect as if set forth herein. The full text of these FAR clauses may be accessed electronically at the following Internet website: https://www.acquisition.gov/far/. The following changes to the FAR clauses are made for incorporation of these clauses in this Order: "Contractor" shall mean "Supplier"; "Contracting Officer" shall mean "LSC Communications LLC Canada Corporation's Purchasing Representative."; "Contract" shall mean this "Purchase Order."; "Government" shall mean "LSC Communications LLC Canada Corporation." and "Subcontractor" shall mean "Supplier's subcontractor." Supplier is not required to comply with the FAR clauses cited herein, except for FAR 52.247-64, with regard to Supplier's work performed outside the United States by employees who were not recruited within the United States.
Business Records. Supplier agrees to maintain accurate business records relating to Supplier's compliance with the foregoing laws, rules and regulations, and to retain the same for a period of at least five (5) years from the date of the last invoice issued to LSC Communications LLC Canada Corporation. All such records, books and information may be audited or inspected by LSC Communications LLC Canada Corporation representatives upon reasonable notice at all reasonable times.
Remedies
LSC Communications LLC Canada Corporation's remedies shall be cumulative and shall include any remedies allowed by law. Waiver of any breach by LSC Communications LLC Canada Corporation shall not constitute LSC Communications LLC Canada Corporation's waiver of any other breach of the same or any other provision. Acceptance of any items or payments therefore shall not waive any breach.Governing Law/Submission To Jurisdiction
This agreement shall be construed in accordance with the laws governing contracts made and to be performed in the Province of Ontario exclusive of the U.N. Convention on the International Sale of Goods. Supplier hereby consents to the jurisdiction of any local, state, or federal court located within the Province of Ontario and waives any objection which Supplier may have based on improper venue or forum non conveniens to the conduct of any proceeding in any such court.Environmental, Health and Safety Rules
For Services performed at an LSC Communications LLC Canada Corporation site, Supplier shall conform to all EHS provisions contained in Specifications 'RPM - Regulated Products and Materials', G1 and the LSC Communications LLC Canada Corporation Contractor EHS Program. A Supplier representative shall participate in an initial and annual review of the LSC Communications LLC Canada Corporation Contractor EHS Program and shall advise and cause all personnel and subcontractors who perform Services at the site to comply with the requirements of the program. To the extent the Products sold by Supplier to LSC Communications LLC Canada Corporation include any food, drug, cosmetic or medical device, or consumer product, the terms of RPM (Regulated Product and Materials) Safety Specifications shall apply to such purchases. The foregoing Specifications and LSC Communications LLC Canada Corporation EHS Contractor Safety program are posted at Supplier Info. The version governing this Agreement shall be the version in effect as of the Effective Date or at the time of the annual review. LSC Communications LLC Canada Corporation shall retain copies of all versions of the documents referenced above during the term of this Agreement and records showing the effective dates of each version.Language
The parties confirm that it is their wish that these Contract Terms, as well as any other documents relating hereto, including all Orders, notices, schedules, authorizations, attachments and amendments, have been and shall be drawn up in the English language only. Les parties confirment que c'est leur volente expresse que ce contrat et tous documents y etant relatif, y compris les bons de commande, les avis, les annexes, les autorisations, les pieces jointes et les amendements soient rediges en langue anglais seulement.Entire Agreement
This Agreement and associated documents referenced herein constitute the entire agreement between the parties with respect to the subject matter hereof; all prior agreements, representations, statements, negotiations and undertakings, whether oral or written, are superseded hereby. In the event LSC Communications LLC Canada Corporation acquires, is acquired by or merges with another company that has a written contract with Supplier, or otherwise assumes a contract between Supplier and the acquiring, acquired or merging company (each, a "Legacy Contract"), LSC Communications LLC Canada Corporation may at its sole option terminate the Legacy Contract by written notice and elect to have this Agreement govern all transactions between Supplier and LSC Communications LLC Canada Corporation and its Affiliates from and after the date given in the notice.
RPM (REGULATED PRODUCT AND MATERIALS) SAFETY SPECIFICATIONS
Replaces C-1 and E-1 Specifications
(Revised September 2014) revised December 2020 for TOPS Products LLC
Download the RPM (Regulated Product and Materials) Safety Specifications
TAX FORMS
Request for taxpayer identification and number certification
Revised December 2020 for TOPS Products LLC
W-9/1099 Information Page
Federal income tax laws require that TOPS Products LLC file annual tax information returns for certain payments made by us during the year. In order for us to properly complete these returns, you are required by law to provide us with your taxpayer identification number or certify your exemption from these requirements. Payment cannot be released to your company until this form is received and on file in our Corporate Accounts Payable department.
TRANSPARENCY IN SUPPLY CHAIN ACT DECLARATION
Originally posted on December 27, 2011 by RR Donnelley, revised December 2020 for TOPS Products LLC
In 2010, the State of California of California adopted the Transparency in Supply Chain Act, which requires certain retailers and manufacturers to post a disclosure statement on their web site detailing whether, and to what extent, they investigate or monitor slavery or human trafficking in their direct product supply chains.
On October 1, 2016, TOPS Products LLC was spun off from R. R. Donnelley & Sons Company ("RR Donnelley") as a separate, independent company. In accordance with the requirements of the Act, TOPS Products LLC hereby declares that it requires suppliers in its direct product supply chains to comply with applicable laws, will investigate claims brought to its attention regarding the use of slavery or human trafficking by its suppliers and will take appropriate action to discontinue use of a supplier that uses such labor. TOPS Products LLC management is not aware of any claims regarding the use of slavery or human trafficking by any member of TOPS Products LLC's direct supply chains since RR Donnelley was founded in 1864.
Except as disclosed in the preceding paragraph and because there is no known claim of use of slave or human trafficking labor by TOPS Products LLC suppliers in the history of the company, TOPS Products LLC has not (a) reviewed its product supply chains to evaluate and address risks of human trafficking and slavery or employed a third party to audit or evaluate such risks, (b) established entity standards on human trafficking and slavery and then conducted supplier audits to evaluate whether suppliers comply with standards, (c) required direct suppliers to certify that materials incorporated into their products comply with the laws addressing human trafficking and slavery of the country or countries in which they are doing business, (d) maintained internal accountability standards and procedures for employees or contractors failing to meet company standards regarding slavery and trafficking, or (e) provided company employees and management, who have direct responsibility for supply chain management, training on slavery and human trafficking and how to mitigate risks along the product supply chain.