Terms and Conditions of Purchase (Purchase Order Terms & Conditions):
1. ACCEPTANCE : Unless otherwise agreed in a single writing mutually executed by authorized representatives of Buyer and Supplier: This purchase order, together with any documents specifically adopted by reference including drawings, specifications and releases (collectively, "Purchase Order" or "PO"), constitutes the entire agreement between the parties concerning the purchase of materials, parts, products, and/or services (as applicable) (“Goods”) specified and (a) supersedes any previous representations, discussions, agreements, and/or negotiations, including but not limited to those in Supplier’s quotes or acknowledgements; (b) is an offer, and (any of the following) Supplier’s written acknowledgement, commencement of work on the Goods specified, or shipment of Goods constitutes Supplier’s acceptance of these terms; and (c) is expressly limited to these PO terms. Supplier’s additional or different terms or any attempt by Supplier to remove, add to, or otherwise vary any of the terms of this PO, is objected to and rejected and shall be deemed a material alteration. This PO shall be deemed accepted by Supplier without any additional or different terms unless agreed to otherwise in writing by Buyer. No unilateral action by Buyer or Seller may alter these terms or their applicability to any orders wherein these terms are incorporated. It is agreed that it is the express wish of Buyer and Supplier that this Agreement and any related documents be drawn up and executed in English only. Buyer is severally liable and responsible for its obligations and performance requirements under this PO.
2. BUYER'S COMMITMENT: Buyer will purchase Goods at the price and in the quantity on this PO or if this is a blanket PO, at the quantity indicated in the firm period of a release. A release is a written document issued by Buyer’s authorized representative stating the delivery dates and quantities needed.
3. PRICE: Supplier will provide the Goods at the price in this PO or such other price as the parties agree. Supplier warrants that the price for the Goods including discounts and rebates, is no less favorable than those prices extended to any other customer of Supplier for the same or similar Goods in similar quantities. If Supplier at any time reduces its price to other customers, Supplier will also immediately reduce its prices to Buyer. Supplier warrants that its prices are complete, and that no additional charges of any type shall be added without Buyer's prior written consent including, but not limited to, charges for shipping, packaging, labeling, storage, cartage, insurance, taxes, brokerage fees, customs duties, and surcharges of any type. Cash discounts shall be computed from the date of receipt by Buyer of a final invoice or receipt of the Goods, whichever occurs later.
4. DELIVERY: Terms of delivery are as indicated in this PO or as otherwise agreed upon by Buyer and Supplier. Supplier agrees that TIME IS OF THE ESSENCE with respect to all of Supplier’s obligations herein and Supplier agrees it is responsible for timely shipment of the Goods to meet the quantities and delivery dates in releases and for performance of services by the dates agreed to. Buyer shall not be liable for material or labor commitments or production arrangements in excess of the amount or in advance of the time necessary to comply with this PO unless otherwise agreed in writing. If Supplier fails to meet Buyer’s releases, Buyer may without limiting its other rights/remedies, expedite shipments and debit Supplier for any excess costs incurred.
5. CHANGES: Buyer may at any time by notice to Supplier change the specifications (including part number), time or place of delivery or performance, method of transportation, quantity, or other requirements. The parties will negotiate an equitable adjustment in price and terms where Supplier’s costs are materially affected unless the change is necessary due to Supplier’s non-conformance or breach.
6. INSPECTION/TESTING: Payment for Goods, or inspection or testing specified or performed by Buyer does not constitute acceptance or relieve Supplier of its obligations. Buyer may inspect Goods provided and reject any or all of them which are in Buyer’s judgment defective or non-conforming. Rejected may be returned at Supplier’s expense and, in addition to other rights, Buyer may charge Supplier all expenses relating to the inspection and return. Buyer may require Supplier to provide to Buyer's satisfaction, any services previously rendered in a non-conforming, negligent, or unworkmanlike manner and to pay to Buyer any related damages. Nothing contained in this PO relieves Supplier from its obligation of testing, inspection, and quality control. Buyer has all rights allowed by law in connection with this PO, including the applicable Statute of Limitations period, and such remedies shall be cumulative. Where Supplier’s breach or stop shipment threatens a shutdown of Buyer’s manufacturing facility, monetary damages will not be sufficient entitling Buyer to injunctive relief in addition to all other remedies.
7. WARRANTIES : Supplier warrants that from the time of delivery and continuing for the Warranty Period (defined below) all Goods (a) shall conform to specifications, Buyer’s Restricted Materials List, samples, models, drawings, descriptions and standards; (b) are packaged, marked and labeled properly and according to Buyer’s instructions; (c) are new, merchantable, fit for intended purposes, safe and free from defect in materials, assembly, workmanship and design; (d) shall be manufactured, sold and delivered in compliance with all relevant codes, laws and regulations; (e) all services shall be performed by Supplier in a competent, workmanlike manner and in accordance with industry standards; and (f) Buyer shall receive title to the Goods that is free and clear of any liens, encumbrances and any actual or claimed infringement or misappropriation of any intellectual property or trade secrets. Warranty Period means the longer of the following periods: (i) 18 months from the date of first use of the Goods or acceptance of Goods, whichever is later; or (ii) if Goods are used in Buyer’s finished product, 18 months from the date of incorporation into Buyer’s finished product or the time period of warranty Buyer gives to third parties, whichever occurs later. None of the remedies available to Buyer for breach of warranties may be limited except to the extent agreed to by Buyer in writing. In addition, Supplier warrants that antidumping and countervailing duties do not apply to Goods that are (1) sold to Buyer before the publication date of an antidumping or countervailing duty order applicable to the Goods and (2) exported to Buyer before the publication date of a final antidumping determination, and Supplier agrees to reimburse Buyer for all antidumping or countervailing duties paid on U.S. imports of Goods covered by this warranty, provided that apart from this warranty Supplier shall not directly or indirectly reimburse Buyer any antidumping or countervailing duties. Any quality improvement, goal or target is not in lieu of and does not limit or modify this warranty or Buyer’s remedies, rights, or damages. All warranties shall survive inspection, testing, acceptance of Goods by Buyer, and expiration or termination of this PO. Supplier agrees to abide by Buyer’s quality requirements as amended from time to time and incorporated herein. Supplier agrees it shall cover Buyer for any loss, damage, or expense as a result of breach of warranty.
8. INDEMNIFICATION : Supplier agrees at its own expense to protect, defend, hold harmless and indemnify Buyer and Buyer's successors, assigns, agents and customers from and against any claims, damages, losses, costs and expenses (including attorneys' fees and settlement amounts) arising out of or resulting in any way from any (a) actual or alleged infringement or misappropriation of any intellectual property or trade secrets by reason of the manufacture, use or sale of any Goods; (b) actual or alleged death of or injury to any person, damage to property, or any other damage or loss suffered, including economic loss, costs of rework or recall, that are alleged to result from or result from any (i) defective or non-conforming Goods or breach of warranty, contract, negligence or intentional misconduct, including Buyer’s failure to warn due to Supplier’s Goods; or (ii) actual or alleged violation by Supplier of any law, statute, administrative order, rule or regulation.
9. INSURANCE : Supplier agrees to obtain and maintain, at its expense, commercial general liability insurance coverage providing coverage for Buyer on a worldwide basis and naming Buyer as an additional insured, and insuring against liability for any injury, damage or loss arising out of an alleged defect or deficiency of Supplier’s Goods, including coverage for Goods-completed operations hazard, regardless of the theory of liability or causation alleged in the underlying lawsuit or claim. Such insurance shall be primary to (and from an underwriting having a rating approved in advance by Buyer) and not in excess of or contributory with other insurance available to Buyer and provide coverage in an amount equal to the full amount maintained by Supplier in the normal course of Supplier’s business (including excess and umbrella liability coverage), but in no event shall such combined coverage be in an amount less than $5,000,000 per occurrence. Supplier shall provide Buyer with a certificate of insurance evidencing this coverage or policy annually or upon request.
10. CONSUMER PRODUCT SAFETY : Supplier shall notify Buyer immediately if any Goods provided under this PO (a) fail to comply with any applicable consumer product safety rule; (b) contain a defect which could create a risk of injury to the public and/or obligate Buyer under any law or regulation to warn the public of such defect; or (c) contain or were manufactured with a chemical (i) known or specified in any law or regulation to be harmful or injurious to human health or reproduction or the environment; or (ii) which creates an obligation under any law or regulation for Supplier or Buyer to label the Goods or warn that Supplier’s Goods contain or were manufactured with such chemicals. Should Goods cause a product recall, Supplier shall reimburse Buyer for all associated costs and expenses.
11. ENVIRONMENTAL PROTECTION: Supplier shall label any Goods supplied to Buyer as required by 40 CFR Part 82 (or similar federal/state laws or regulations) if they contain or were manufactured with any chemical defined as a “controlled substance.”
12. REMOVAL OF LABELS: Supplier agrees not to sell or otherwise dispose of Goods, or Tooling without Buyer’s written consent and without first removing Buyer's identification or trademarks.
13. INDEPENDENT CONTRACTOR: Supplier and Buyer are independent contracting parties and nothing in this PO shall make either party the agent of the other nor does it grant either party any authority to assume or to create any obligation on behalf of or in the name of the other.
14. INTELLECTUAL PROPERTY: All inventions, designs, drawings, technologies, improvements, processes, copyrights, trademarks or the like ("Intellectual Property") that Supplier creates or develops in connection with this PO for the benefit of Buyer belong to Buyer. Supplier assigns to Buyer all right, title and interest in such Intellectual Property including as necessary, a perpetual, worldwide, non-exclusive, paid up, royalty free license to use it.
15. CONFIDENTIALITY AND NON-USE: Supplier shall not sell or otherwise provide to anyone other than Buyer any Goods made in accordance with any drawings, designs, or specifications that Buyer furnishes to Supplier or that include or are made according to Buyer’s Intellectual Property. Supplier shall maintain the confidentiality of, and not disclose or permit to be used the Goods, any designs of or specifications for them, any Buyer Tooling or property, Intellectual Property, or any information concerning Buyer’s business, operations, or activities ("Confidential Information"), except to the extent necessary for Supplier to perform its obligations under this PO. Supplier agrees that breach of this paragraph would cause irreparable harm that entitles Buyer to injunctive relief.
16. C-TPAT/NAFTA: Supplier shall comply with all C-TPAT guidelines and supply Buyer with a NAFTA certificate of origin when and where required by law or regulation or pursuant to Buyer’s request.
17. FORCE MAJEURE: Any delay or failure of either party to perform its obligations shall be excused if it is caused by an extraordinary event or occurrence beyond the control of the nonperforming party and without the nonperforming party’s fault or negligence, such as acts of God, fires, floods, windstorms, explosions, natural disasters, wars, and sabotage. Raw material or labor shortages are not force majeure events. Each party shall promptly notify the other of the reason for the delay and use its best efforts in curing such cause and shall take all action practicable to minimize the adverse impact of the delay on the other party.
18. TERMINATION: (a) Buyer may immediately terminate this PO or any order or release for cause in the event of any default by Supplier. Defaults include but are not limited to: (i) late delivery; (ii) delivery of Goods/services that are defective or that do not conform to this PO; (iii) failure upon request to provide Buyer with reasonable assurances of future performance; or (iv) if Goods become subject to antidumping or countervailing duty order. Additionally, Buyer may cancel this PO in the event of Supplier’s insolvency, filing of bankruptcy, assignment for creditors, appointment of a receiver, or inability of Supplier to pay debts as they mature or become due. If there is a termination for cause, Buyer shall not be liable to Supplier for any amount, and Supplier shall be liable to Buyer for all damages sustained because of Supplier’s breach or default. (b) Buyer also has the right to terminate this PO or any order under it without cause. In the event of such termination and upon notice by Buyer, Supplier shall immediately stop all work and cause its suppliers and subcontractors to stop work. Supplier shall be paid for work performed before the termination and shall submit its claim for this work within 30 days of the termination. Buyer reserves the right to verify the claim by auditing Supplier’s records. Supplier shall not be paid for any work performed after the specified termination date, nor for any costs incurred by Supplier’s suppliers or subcontractors which Supplier could reasonably have avoided. Buyer shall not, in any event, be liable for loss of profits or other cancellation charges. In the event of any termination of this PO as provided herein, Supplier shall immediately refund to Buyer all deposits advanced by Buyer in support of this PO.
19. ASSIGNMENTS AND SUBCONTRACTING: No right or obligation under this PO shall be assigned, transferred, or subcontracted by Supplier without Buyer’s prior written consent and without which will be void.
20. SETOFF: Supplier agrees that Buyer has the right to set off or recoup any indebtedness or obligations of Supplier to Buyer, or other claim which Buyer may have against Supplier under this PO or other agreement. The terms "Buyer" and "Supplier" for purposes of this paragraph shall include their parent companies, subsidiaries, and affiliates.
21. LIMITATIONS OF DAMAGES: Buyer will not be liable to Supplier for indirect, special, consequential, incidental, punitive, or exemplary damages including, but not limited to, lost profits.
22. APPLICABLE LAW: This PO shall be governed and interpreted by the laws of the State of Wisconsin, U.S.A., without regard to any conflicts of law provisions and excluding the United Nations Convention for the International Sale of Goods. All disputes shall be adjudicated exclusively in the state or federal courts in Wisconsin, U.S.A. The parties hereby submit to the personal jurisdiction of such courts and waive the defense of venue with respect to any such proceeding.
23. U.S. FEDERAL GOVERNMENT CONTRACTS: If applicable, Buyer and Supplier [subcontractor] shall abide by the requirements of 41 CFR Sections 60-1.4(a), 60-300.5(a) and 60-741.5(a). 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, national origin, gender identity or sexual orientation. 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, gender identity or sexual orientation, protected veteran status or disability. This PO [subcontract] may also be subject to the following: Executive Order 13496 and implementing regulations at 29 CFR Part 471, Appendix A to Subpart A.
24. SURVIVAL: The provisions of this PO which by their nature would go beyond the termination, cancellation, or expiration of this PO, including but not limited to, Warranty, Indemnity, Insurance and Confidentiality and Non-Use survive its termination, cancellation, or expiration.
25. ENTIRE AGREEMENT: This PO, any related releases, consignment, and other documents incorporated into these terms by Buyer constitute the entire agreement regarding the identified Goods between Buyer and Supplier, unless otherwise agreed in writing by Buyer.