(i) Buyer acknowledges that it has had the opportunity to review Seller’s written Anti-Corruption Policy, which is available at the following web address: www.alcoa.com/global/en/about_alcoa/corp_gov/info_page/policy_anti_corruption.asp.
Buyer represents and certifies that it fully understands the Policy, agrees to take no action with respect to its purchase, use, or disposition of the Goods, or this Agreement generally, that might be a violation of the Policy.
(ii) It is the intent of Seller and Buyer that no payments or transfers of value shall be made in relation to this Agreement or to Buyer’s use or disposition of the Goods that have the purpose or effect of public or commercial bribery, or acceptance of or acquiescence in extortion, kickbacks, or other unlawful or improper means of obtaining business or any other benefit.
(iii) Buyer represents that it, and each of its owners, directors, officers, employees and every other person working on its behalf has not and shall not, in connection with the transactions contemplated by this Agreement or in connection with any other business transactions involving Seller, make any payment or facilitate or transfer or cause to transfer anything of value, directly or indirectly to:
(1) any governmental official or employee (including any employee of a government corporation or public international organization);(2) any political party, official or worker of a political party, or candidate for public office;(3) any other person or entity if such payment or transfer would violate any applicable anti-corruption law; or(4) an intermediary for payment to any of the foregoing.
(iv) In the event of a breach of any of the representations, warranties or covenants made by Buyer in the Anti-Corruption Compliance Section of these Terms and Conditions (including the General subsection and Terms Specific to Distributors and Resellers of Goods subsection), Company may, in its sole discretion and in addition to any other remedies it may have under law or this Agreement, cancel or terminate this Agreement without notice and any claims for payment by Buyer with regard to transactions under this Agreement, including claims for services previously performed, shall be automatically terminated and cancelled, and any payments previously paid by Company shall be refunded to Company by Buyer. Buyer shall further indemnify and hold Company harmless against any and all claims, losses or damages arising from or related to such breach and/or termination of this Agreement.
(b) Terms Specific To Distributors and Resellers of Goods.
If Buyer is acting as a distributor or reseller of Seller’s Goods, with or without the knowledge or agreement of Seller, Buyer hereby represents, warrants and covenants to Seller:
(i) Buyer and its owners, directors, officers, employees and agents have not and will not pay, offer, promise to pay or authorize the payment directly or indirectly of any monies or anything of value to any government official, representative or employee or to any political party, holder of public office, or candidate for public office in connection with this Agreement. Buyer acknowledges that, for purposes of this clause, a “government official” may include an employee or official of a commercial entity in which a government body has an ownership interest or exerts control over such entity, as well as officials, representatives and employees of public international organizations;
(ii) None of Buyer’s owners, directors, officers, partners, employees, agents or close family members thereof, i.e., spouses, children, parents and siblings, is presently (or has been within the last year) a government official, representative or employee of any political party, holder of public office, or a candidate for public office. Buyer covenants that it will inform Seller promptly in writing, if any such person assumes such a position while at the same time remaining one of Buyer’s owners, directors, officers, partners, employees or agents;
(iii) All information that has been submitted by Buyer to Seller is complete, truthful and accurate. Buyer will not prepare, approve or execute any contract or other document or make any record that Buyer knows or has reason to know is false, inaccurate or incomplete;
(iv) Buyer is organized for legitimate business purposes and not for any unlawful purpose, and has only lawful sources of funding;
(v) Buyer does not have any existing or potential relationship creating a conflict of interest that restricts or is otherwise in conflict with its ability to distribute or resell the Goods;
(vi) Buyer is fully qualified to distribute or resell Goods purchased hereunder in accordance with the laws, regulations, rules, decrees and other directives applicable to it. Buyer has obtained licenses or completed such registrations as may be necessary or required to perform such activities; and,
(vii) Neither Buyer nor any of its owners, directors, officers, partners, employees or agents has been convicted of or pleaded guilty to an offense involving fraud, corruption or moral turpitude, nor has any such person been listed by any government agency as debarred, suspended, proposed for suspension or disbarment or otherwise ineligible for government procurement programs.
(viii) Buyer will give prompt written notice to Seller in the event that at any time it continues to act as a distributor or reseller of Goods, Buyer breaches any of the warranties, representations or covenants contained herein. Buyer further agrees to give prompt written notice to Seller about any potential violation of any of the warranties, representations or covenants contained herein of which it obtains knowledge or becomes aware or has reasonable grounds to believe has occurred. Notices shall be directed to:
Director Global Compliance
201 Isabella Street
Pittsburgh, Pennsylvania 15212-5858
Telephone: (412) 553-4203
Facsimile: (412) 553-4180
(ix) Buyer will cooperate fully and in good faith with Seller and its representatives in the event of any actual or potential violation by Buyer, or any of its owners, directors, officers, employees or agents, of the Foreign Corrupt Practices Act or any other applicable anti-corruption law, or any warranties, representations or covenants contained herein, including providing access for interviews to its owners, directors, officers, employees and agents.
(x) Buyer will certify in writing, at the request of Seller, its compliance with all applicable laws. In addition, it will certify (in the form of a Certificate to be provided by Seller), that it has not (and to its knowledge no other person, including but not limited to every director, officer, employee, representative, consultant or agent of Seller, made, offered to make, or agreed to make any loan, gift, donation, or other payment, directly or indirectly, whether in cash or in kind, to or for the benefit of any government official, political party, party official, candidate for political office, or faction of any government subdivision, or any individual elected, appointed or otherwise designated as an employee or officer thereof to secure or retain business, influence any decision or obtain any benefit for Seller. Buyer will also complete annual training on anti-corruption principles sent by the Seller for so long as Buyer continues to purchase Goods from Seller for distribution and/or resale.
(xi) During the term of this Agreement, and for a period of five (5) years after its expiration or termination, Buyer will maintain records that accurately and completely document all services performed; all payments received or made (whether in kind or in cash); and all expenditures incurred by Buyer on behalf of Seller or otherwise in connection with the performance of this Agreement.
(xii) In order to verify compliance with the terms of this Agreement, Buyer agrees that Seller shall have the right, from time to time, upon written notice, to audit Buyer’s books and records to the extent that such books and records relate to the performance of this Agreement and any payments received or expenditures incurred hereunder. Buyer agrees to furnish promptly to Seller any additional information it may reasonably request to verify compliance with this Agreement.
BUYER AGREES THAT IT WILL INDEMNIFY SELLER FOR ALL DAMAGES SUFFERED BY SELLER AS A RESULT OF ANY BREACH BY BUYER OF THE FORGOING REPRESENTATIONS, WARRANTIES AND COVENANTS.
(c) If Buyer is acting as a distributor or reseller of Seller’s Goods, with or without the knowledge or agreement of Seller, Buyer acknowledges and agrees that notwithstanding any other written agreement with Company:
(i) Any and all payment to Buyer relating to or arising out of this Agreement shall be made payable to Buyer in the country in which Buyer does business or resides.
(ii) All payments to Buyer shall be made by wire transfer or by a Seller check delivered to Buyer in the locations where it does business or resides.
(iii) Company has the right to suspend or withhold payment pending an investigation into any suspected violation of the prohibition of bribery in these Terms and Conditions, any applicable anti-corruption law and/or the Foreign Corrupt Practices Act.
(iv) Unless agreed to expressly in writing, Buyer shall not be reimbursed for any expenses incurred in its capacity as a distributor or reseller of Goods. Buyer acknowledges and agrees that notwithstanding any other written agreement with Seller, to the extent that any payments are agreed upon, Buyer shall be reimbursed for all disbursements and travel and lodging expenses reasonably incurred by it in the performance of its obligations under this Agreement, but only to the extent they are documented and supported by receipts to Seller’s satisfaction.
(v) Under no circumstances shall Seller issue any payment under this Agreement directly to any owner, director, officer, employee, representative, agent or consultant of Buyer.
(vi) No request for cash payments or cash equivalents will be accepted by Seller.