TERMS AND CONDITIONS
THE FOLLOWING TERMS AND CONDITIONS SHALL APPLY TO EVERY PURCHASE, SALE, SHIPMENT AND DELIVERY OF PRODUCTS FROM SELLER TO BUYER AND RELATED TRANSACTIONS UNLESS THE PARTIES HAVE MUTUALLY AGREED AND SPECIFICALLY LISTED CONTRARY TERMS IN WRITING ON THE FRONT OF THIS PURCHASE ORDER.
ACCEPTANCE, AGREEMENT. Acceptance of this Purchase Order is limited to the terms and conditions (“Terms and Conditions”) contained on the face and the back hereof. Any additional or different terms or conditions proposed by Seller or on Seller’s form are hereby deemed material alterations and are rejected unless expressly agreed to in a written document signed by Buyer.
ACKNOWLEDGEMENTS, PACKING LISTS AND INVOICES. Each delivery of Products shall reference the Purchase Order Number, Release Number, item code, quantity and description of Products shipped.
QUALITY AND INSPECTIONS. Seller shall supply the Products in accordance with Buyer’s specifications and to the applicable Purchase Order. Products are subject to Buyer’s inspection and approval or rejection notwithstanding Buyer’s prior receipt of or payment for the Products. Products received by Buyer from Seller that: (a) do not conform to the applicable Purchase Order in quantity; (b) do not fully conform to Buyer’s specifications; or (c) on visual inspection, Buyer reasonably determines are otherwise defective are “Nonconforming Products”. Buyer shall have a reasonable period of time, not to be less than thirty (30) days following delivery of the Products to Buyer’s facility (“Inspection Period”), to inspect all Products received under the Purchase Order and to inform Seller, in writing, of Buyer’s rejection of any Nonconforming Products. Buyer may return to Seller any or all units of rejected Products that constitute Nonconforming Products because they exceed the quantity in the corresponding Purchase Order. If Buyer rejects any other Nonconforming Products, Buyer may elect to (a) require Seller, at Seller’s sole cost, to repair or replace the rejected Products at the location specified by Buyer (which may include Seller’s location, Buyer’s location or the location of a third party), (b) purchase similar products from another source, (c) produce similar products itself, (d) repair the Products itself or have a third party repair the Products, or (e) retain the rejected Products; in each case without limiting the exercise by Buyer of any other rights available to Buyer under these Terms and Conditions or pursuant to applicable law. All returns of Nonconforming Products to Seller are at Seller’s sole risk and expense. Products that are not rejected within the Inspection Period will be deemed to have been accepted by Buyer; provided, however, that Buyer’s acceptance of any Products will not be deemed to be a waiver or limitation of Seller’s obligations pursuant to these Terms and Conditions (or any breach thereof), including those obligations with respect to the warranties provided by Seller herein and Seller’s duty to indemnify Buyer.
PACKAGING. Packaging will be of quality necessary to ensure Products are received in undamaged condition. Packages will bear Buyer’s order number and show gross, tare and net weights and/or quantity. Charges for packaging will not be allowed by Buyer.
DELIVERY AND BILL OF LADING. All Products shall be delivered FOB Buyer’s facility listed on the applicable Purchase Order with title and risk of loss passing to Buyer upon delivery to Buyer’s facility, as evidenced by the authorized signature of Buyer, its designee, or its designated carrier. A copy of the Bill of Lading or comparable paper must accompany invoice. Seller is responsible for all costs, including but not limited to, all tariffs, duties or import taxes, associated with ensuring the Products are cleared for import or export.
CHANGES. Buyer shall have the right to make changes in this Purchase Order at any time, and Seller agrees to accept such changes. If such changes result in additional costs, Buyer shall make an equitable adjustment in the purchase price provided such additional costs are limited for Buyer by Seller within thirty days of the change.
TITLE AND WARRANTY. The Seller warrants that it has good title to any Products sold hereunder and that it has the right to transfer such title. Seller also warrants that all Products or services furnished hereunder shall be merchantable and free from any defects in workmanship or material and shall conform to all specifications and appropriate standards. If Seller has been informed of the use of the Products, then Seller also warrants that the Products furnished hereunder are fit for such use. Seller shall extend all warranties it receives from its vendors to Buyer, and Seller’s warranty shall extend to Buyer’s customers.
INDEMNIFICATION. SELLER WILL, AT ALL TIMES, INDEMNIFY, DEFEND AND HOLD HARMLESS TO THE FULLEST EXTENT PERMITTED BY LAW BUYER, ITS AFFILIATES, AND THEIR SUCCESSORS AND ASSIGNS AND THEIR RESPECTIVE PARTNERS, OFFICERS DIRECTORS, SHAREHOLDERS, AGENTS, REPRESENTATIVES, INDEPENDENT CONTRACTORS, SERVANTS AND EMPLOYEES (COLLECTIVELY, THE “BUYER INDEMNITEES”) FROM ALL LOSSES AND EXPENSES INCURRED IN CONNECTION WITH ANY ACTION, SUIT, PROCEEDING, CLAIM, DEMAND, INVESTIGATION OR INQUIRY (FORMAL OR INFORMAL), OR ANY SETTLEMENT THEREOF, BY A THIRD PARTY (“CLAIM”), WHETHER OR NOT A FORMAL PROCEEDING OR ACTION HAS BEEN INSTITUTED WHICH ARISES OUT OF OR IS BASED UPON ANY OF THE FOLLOWING: (A) ANY ACTUAL OR ALLEGED DEFECT IN THE PRODUCTS SUPPLIED BY SELLER HOWEVER OCCURRING; (B) SELLER’S BREACH OF ITS REPRESENTATIONS, COVENANTS AND WARRANTIES OR OTHER BREACH OF THESE TERMS AND CONDITIONS; (C) SELLER’S SERVICES IN VIOLATION OF APPLICABLE LAW OR INFRINGING UPON ANY THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS; (D) ANY AND ALL COSTS ASSOCIATED WITH ANY RECALL OR CORRECTIVE ACTION PLAN IN ACCORDANCE WITH THESE TERMS AND CONDITIONS; OR (E) THE PERSONAL INJURY TO OR DEATH OF ANY PERSON, HOWEVER OCCURRING, THAT IS CAUSED BY ANY PRODUCT OR ANY DEFECT IN ANY PRODUCT.
PRODUCT RECALL. IF BUYER, SELLER OR ANY GOVERNMENTAL AGENCY HAVING JURISDICTION IDENTIFIES A DEFECTIVE PRODUCT, WHETHER BASED ON INFORMATION RECEIVED THROUGH CUSTOMER COMPLAINTS, WARRANTY RETURNS, INSURANCE CLAIMS OR PAYMENTS, PRODUCT LIABILITY CLAIMS OR LAWSUITS, REPORTS OF PRODUCTION PROBLEMS OR PRODUCT TESTING, SELLER WILL, AT SELLER’S EXPENSE, ASSIST COMPANY TO: (A) IMPLEMENT A CORRECTIVE ACTION PLAN THAT COMPLIES WITH APPLICABLE LAW; AND (B) NOTIFY ANY REQUIRED GOVERNMENTAL AGENCY OR AUTHORITY IN COMPLIANCE WITH APPLICABLE LAW AND SUBMIT ALL REQUIRED REPORTS IN COMPLIANCE WITH APPLICABLE LAW. “Corrective Action Plan” means an action plan to be executed by Seller in the event of recall or a quality issue or abnormality caused by a process deviation of one or more defective Products including, but not limited to, any plan for return of defective Products to Seller for a refund or replacement Product, any plan for withdrawal of defective Product from the marketplace, repair of defective Product, and any notice to Buyer and the general public of hazards with respect to one or more defective Products. For purposes of these Terms and Conditions, a Corrective Action Plan includes all actions necessary or advisable to comply with applicable law, including all steps mandated, requested or suggested by governmental authorities.
TERMINATION. Buyer reserves the right to terminate any Purchase Order for its convenience. In such event Seller shall immediately stop all work and follow any instructions from Buyer as to work in process. Seller shall be paid an equitable adjustment for any work already performed prior to the notice of termination. Buyer may also terminate this Terms and Conditions for cause upon a default by Seller of any of its obligations hereunder. In such event, Buyer shall not be liable to Seller for any amounts, and Seller shall be liable for, and shall indemnify and hold Buyer harmless from, any damages occasioned by the Seller’s default. If it should be determined that Buyer has improperly terminated a Purchase Order for default, such termination shall be deemed to be for Buyer’s convenience. All terms which by their nature survive any expiration or earlier termination of these Terms and Conditions will survive any expiration or earlier termination of these Terms and Conditions, including, without limitation: Warranty; Product Recall; Indemnification; Limitation of Buyer’s Liability; and Dispute Resolution.
PATENTS. Seller agrees to assume, at its own expense, full responsibility for defense of any suit or action brought against Buyer for infringement or misappropriation of patents or trade secrets by reason of use or sale of any Products furnished hereunder, except for Products manufactured entirely to Buyer’s specifications. The Seller further agrees to indemnify and hold Buyer harmless against all liabilities and damages resulting from any such suit action. The Buyer, at its options may be represented by and actively participate through its own counsel in any such suit or action. In the event of any claim of infringement resulting from the purchase of said Products, the Buyer may cancel (without prejudice to any claims that the Buyer may have against Seller) any or all of the unfilled portion of any Purchase Order and may return to the Seller for full refund the unused portion of said Products.
FREEDOM OF ACTION. Nothing herein will limit Buyer’s right to develop, procure, market, sell, or distribute any products or services whatsoever, in any manner, through any means, medium, or channel of distribution (including, without limitation, through the Internet), to any customer or any consumer, or through any supplier, now or in the future, including any products which are the same as or which may be competitive with the Products.
PAYMENT. Unless otherwise specified on the front of the Purchase Order, or any other documents as agreed to by the parties, payment shall be made net 60 days from the (i) date of invoice to (ii) receipt of the Products, whichever is later. If Buyer disputes the accuracy or applicability of a charge, Buyer will pay the undisputed portion of the charge in accordance with this Payment Section and will notify Seller of such disputed amount as soon as practicable after discovering the discrepancy. Buyer and Seller will investigate and attempt to resolve the dispute through a good faith meeting of senior executives of each party with authority to settle the dispute.
FORCE MAJEURE. Upon the occurrence of a Force Majeure Event (defined below), the party that is unable to perform its obligations hereunder will promptly notify the other Party in writing of the existence, nature, and expected duration of the Force Majeure Event and will use all reasonable efforts to overcome the effects of the Force Majeure Event and resume performance as soon as reasonably practicable provided that such causes shall not relieve any payment obligations of either party. Buyer may delay delivery or acceptance of Products for causes beyond its control. Seller will hold such Products pending Buyer’s instructions, and Buyer shall be liable only for direct increased costs incurred by Seller due to Buyer’s instructions. “Force Majeure Event” means a strike, riot, fire, explosion, act of God, war, act of terrorism or governmental action, Cybersecurity Incident, or any other similar cause which is beyond the reasonable control of Buyer or Seller. “Cybersecurity Incident” means any event or occurrence that results in unauthorized access to, or adversely affects the availability or integrity of, Buyer’s confidential information, which event or occurrence could not have been prevented by reasonable administrative, physical or technical security measures.
LIMITATION ON BUYER’S LIABILITY. Buyer shall not be liable for any indirect, incidental, special, exemplary, punitive, or consequential damages, including, but not limited to, compensation for damages to reputation and goodwill, costs of or resulting from delays, financing, marketing materials and media time and space (and costs of changing, substituting or replacing the same), damage or loss of other property or equipment, loss of profits or revenue, cost of capital. Buyer’s liability on any claims of any kind arising out of this Purchase Order shall not exceed the price allocable to the Products or services that give rise to the claim.
GOVERNMENTAL REGULATION. Seller warrants that all applicable laws, rules, and regulations of government authority covering the production, sale and delivery of the Products or services specified herein have been complied with.
TSCA. Seller warrants that all chemical substances constituting or contained in the Products sold or otherwise transferred to the Buyer under this Terms and Conditions are on the list of chemical substances complied and published by the administrator of the Environmental Protection Agency pursuant to the Toxic Substance Control Act and are otherwise in compliance with said Act.
EQUAL EMPLOYMENT OPPORTUNITY, AFFIRMATIVE ACTION. The requirement of Executive Order 11246, the Vietnam Era Veterans Readjustment Assistance Act of 1972, and the Rehabilitation Act of 1973, all as amended to date together with their implementing regulations, equal opportunity and affirmative action clauses, are hereby incorporated into this Terms and Conditions t by reference.
SUBCONTRACTING REQUIREMENTS. If this Purchase Order exceeds $10,000 then the clause entitled “Utilization of Small Business Concerns and Small Disadvantaged Business Concerns” as set forth at 48 C.F.R. 52.219-8 and the clause entitled “Utilization of Women-Owned Small Businesses” as set forth as 48 C.F.R. 52.219-13 are hereby incorporated into these Terms and Conditions by reference.
CONFIDENTIAL INFORMATION. Except as required by law or otherwise permitted in writing signed by Buyer, Seller will keep and maintain the Buyer Confidential Information in strict confidence and will not disclose any of the Confidential Information to any person other than to bona fide employees, agents or professional advisors of Seller who Seller believes require such Confidential Information on a need-to-know basis in the course of their employment or work with Seller. If Seller discloses any Confidential Information to a Subcontractor, an agent or professional advisor that is not an employee of Seller, such disclosure will not occur until such Subcontractor, agent or advisor enters into a confidentiality agreement in a form approved by Buyer. If any unauthorized disclosure of the Confidential Information occurs or is suspected by Seller, Seller will immediately notify the Buyer of the full particulars of such actual or suspected disclosure. Seller will return all Confidential Information in its possession on termination of these Terms and Conditions or at the request of Buyer. For purposes of these Terms and Conditions, “Confidential Information” means all information and data, in any form whatsoever, relating to Buyer’s business, trade practices, trade secrets, quality standards, forecasts, methods of operation, sales, marketing, technology, know-how, providers, financial statements or other financial information, or business plans (including any copies or versions thereof), including, without limitation, the identity of and information regarding Buyer’s customers, and prices.
ADDITIONAL TERMS. No part of any Purchase Order may be assigned or subcontracted without the prior written approval of the Buyer. Any monies due to Buyer from Seller can be set off from any monies due Seller from Buyer whether or not under this Purchase Order. Buyer’s failure, at any time, to require performance by the Seller of any of the provisions herein will not operate as a waiver of the right of Buyer to require strict performance of the same or like provisions, or any other provisions hereof, at a later time. Time is of the essence of this Purchase Order. Seller shall pay all taxes, duties, and other governmental exactions imposed by law on or on account of the manufacture and/or sale of Products covered by this Purchase Order unless specifically imposed on Buyer by law.
ORDER FOR SERVICE. If this Purchase Order includes work to be performed on Buyer’s premises, Seller agrees to indemnify the Buyer from all loss or damage arising out of such work, to observe the highest safety standards, to maintain adequate insurance, and to furnish evidence of such insurance at Buyer’s request.
FAIR LABOR STANDARDS ACT. Seller certifies that Products sold hereunder were produced in compliance with all applicable requirements of Section 6, 7, and 12 of the Fair Labor Standards Act, as amended, and of regulations and orders of the United States Department of Labor issued under Section 14 thereof.
DISPUTE RESOLUTION. These Terms and Conditions and all resulting Purchase Orders shall be construed, and its performance governed, by the Laws of Illinois, excluding the 1980 United Nations Convention on Contracts for the International Sale of Goods if otherwise applicable. Seller and Buyer hereby agree that any dispute will be finally determined by binding arbitration administered by the American Arbitration Association’s International Centre for Dispute Resolution pursuant to the International Dispute Resolution Procedures, except as otherwise provided in this Agreement. The location of the arbitration will be in State of Illinois before a single arbitrator. This agreement does not foreclose a party seeking injunctive relief in a court of competent jurisdiction and any such proceeding seeing injunctive relief must be brought in the federal and state courts located in the State of Illinois.
REMEDIES. Each right and remedy hereunder is cumulative with each and every other right and remedy herein or in any other agreement between Buyer and Seller or under applicable law.
SEVERABILITY. If any one or more of the provisions contained in these Terms and Conditions are deemed illegal or unenforceable, such provision: (a) will be construed in a manner to enable it to be enforced to the extent permitted by applicable law; and (b) will not affect the validity and enforceability of any legal and enforceable provision hereof.
THIRD PARTY BENEFICIARIES. These Terms and Conditions are solely for the benefit of Buyer and Seller and will not confer upon any other person or entity any remedy, claims, actions, or other right.