TERMS AND CONDITIONS
TERMS AND CONDITIONS OF SALE
Revised September 2014
- The definition of terms used, interpretation of this agreement and rights of parties hereto shall be construed under and governed by the Uniform Commercial Code and other applicable laws of the State of Oklahoma. “Seller” when used herein means DW-National Standard-Stillwater, LLC, as applicable. “Purchaser” when used herein means the person or entity purchasing or receiving Goods from Seller. “Goods” means the equipment, products, articles, supplies or other property sold by Seller to Purchaser under an order. “Contract” means the purchase order or purchase agreement between Seller and Purchaser for Goods.
- Seller’s quotations and estimates are not offers and are subject to change or withdrawal without notice before an order is acknowledged by Seller. If Seller’s proposal is deemed to constitute an offer, it may be accepted only on terms set forth in such proposal, including, without limitation, these Terms and Conditions. If Seller’s proposal constitutes an acceptance of an offer, such acceptance is expressly conditioned on Purchaser’s assent to the terms of such proposal, including, without limitation, these Terms and Conditions. An acceptance of any part of the Goods covered hereunder shall be deemed to constitute such assent. Any additional and/or different terms and conditions proposed by Purchaser and/or any attempt by Purchaser to vary any of these terms and conditions shall be deemed a material alteration and is hereby objected to and rejected unless expressly agreed by Seller in writing. Only variations or modifications to the Contract made in writing and signed by Seller and Purchaser shall be enforceable.
- Unless otherwise agreed by Seller in writing, Seller’s prices are subject to change without advance notice at any time prior to order acknowledgment. Seller reserves the right to adjust the invoice price, after the price is quoted and/or acknowledged, to take account of any material variation in Seller’s costs beyond Seller’s reasonable control since the date of the quotation or (if no quotation is issued) the order acknowledgement, and the invoice so adjusted shall be payable as if the price set out therein were the original contract price. All sales are subject to increase without notification by the amount of any sales, excise or other tax or duty levied or charged by any governmental agency and are subject to any price adjustment necessitated by Seller’s compliance with any government action.
- Unless specified in the Contract or otherwise agreed by Seller in writing, Seller reserves the right to change or modify the design, specifications and construction of any product or to substitute material equal to or superior to that originally specified, without notice to the Purchaser.
- Any action for breach of contract hereunder must be commenced within one year after the cause of action has accrued or they are waived. Any failure by Seller to enforce its rights under this Contract will not be deemed a waiver of such rights.
- All disputes arising under or in connection with this Contract shall be resolved by (a) good-faith negotiations by knowledgeable, responsible representatives of each party who are fully authorized to settle any such dispute, or (b) in the event such negotiations do not resolve such dispute within a thirty (30) day period (or such longer period as the parties may agree), binding arbitration held in Chicago, Illinois, by a single arbitrator mutually agreed by the parties, conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Each party shall bear its own costs of these procedures; the parties shall equally split the fees of the arbitration and the arbitrator. Notwithstanding the above, either party shall have the right to seek a temporary restraining order or an injunction related to the purposes of this Contract, to compel compliance with confidentiality obligations, or to file suit to compel compliance with this dispute resolution process.
- Purchaser may not assign, novate or otherwise transfer its rights or obligations under this Contract without Seller’s prior written consent, and any attempt to do so shall be null and void and of no effect.
Purchaser cannot cancel Contracts under any circumstances without Purchaser first reaching an agreement in writing with Seller covering Seller’s damages. Unless a cancellation schedule is agreed in the Contract, cancellation charges for nonstandard Goods shall be an amount sufficient to reimburse Seller for all expenses incurred, including, but not limited to, costs of purchased materials, labor costs, engineering costs, third-party service costs, and a reasonable mark-up to cover overhead and profit. Cancellation charges for standard Goods shall be limited to a twenty-five percent (25%) restocking fee. Purchaser will be responsible for any return freight and insurance.
DRAWINGS, DESIGNS AND CONFIDENTIALITY
- All of Seller’s specifications, designs, drawings and indications of physical, chemical and electronic properties (the “Specifications”) are made in good faith and are approximate indications only and are not binding in detail unless explicitly agreed in the Contract or Seller has agreed in writing to a particular Specification upon which Purchaser has indicated it is relying; Seller shall be entitled to vary the same and/or to correct errors and omissions provided the Goods remain in substantial conformity with the contractual requirements.
- The Specifications and all other designs, drawings, know-how, technologies, proprietary information and other intellectual property concerning Seller’s products or services (including all patents, copyright, design right, knowhow, trade secret and other intellectual property in them) are and shall remain, as between the parties, the sole property of Seller. Purchaser is not entitled, licensed or authorized to make any use of the Specifications or other intellectual property of Seller other than for the use of the Goods as contemplated by this Contract.
- Unless specifically agreed in writing otherwise, any inventions, modifications, improvements, techniques, know-how or intellectual property rights affecting Seller’s products or services made or gained in the course of performing this Contract shall belong to Seller absolutely.
- Neither party shall disclose to third parties or use for its own purposes any confidential or proprietary information of the other party without the prior written consent of the other party.
SHIPMENT, PAYMENT AND CREDIT
- Credit Terms of Payment: All Contracts shall be subject to credit approval by Seller in its sole discretion. Unless specifically agreed otherwise in this Contract, payment terms are net thirty (30) days from date of invoice. Delinquent accounts shall bear interest until paid at the lesser of 18% per annum and the maximum permissible rate under applicable law. Unless specifically agreed otherwise in this Contract, payment shall be in U.S. funds by wire transfer or irrevocable Letter of Credit, confirmed by a major U.S. Bank. In addition to late payment charges, Seller may add to the amount past due any costs associated with collection thereof, including reasonable attorneys’ fees.
- Seller may, in its sole discretion, accept payment for Goods by cash in advance or by money-down with scheduled progress payments.
- If Purchaser fails to fulfill the terms of payment, or if at any time before payment in full is made (whether or not payment is yet due) a petition is presented or resolution passed for the winding up or bankruptcy of Purchaser, or in the event of the appointment of a receiver or administrator of Purchaser’s business, Seller may defer further shipment or, at its option, cancel the unshipped balance. Seller reserves the right prior to making any shipments to require from Purchaser satisfactory security for performance of Purchaser’s obligation. In the event of cancellation in accordance with the provisions hereof, or in the event of non-payment (in full or in part) for the Goods by the due date, Purchaser hereby irrevocably licenses Seller (insofar as it is able) to enter upon any premises to repossess the Goods. No failure of Seller to exercise any right accruing from any default of Purchase shall impair Seller’s right in case of any shipment default of Purchaser.
- Unless specifically agreed otherwise in this Contract, all sales are F.O.B. Mill. Seller may, in its discretion, select the carrier unless specified in advance by Purchaser. Title to the Goods shall transfer to Purchaser upon the earlier of full payment therefor and Seller’s delivery of the Goods per the agreed delivery terms. Risk in the Goods shall transfer to Purchaser upon delivery of the Goods per the agreed delivery terms.
- While expected dates of delivery of goods are given in good faith, the same are not of the essence of or in any way terms of this Contract or representations of fact. All shipping dates given are approximate, and while effort is made to maintain schedules, Seller will not be liable for damages on account of delay. In case of delay by Purchaser in furnishing complete schedules, materials or information, delivery dates may be extended for a reasonable time. Seller shall not be responsible for reasonable or excusable delays nor shall the Purchaser refuse to accept delivery because of any such delays. Excusable delays include, without limitation, delays resulting from accidents, fires, floods, severe weather or other acts of God, strike, lockout or other labor difficulties, embargoes, government controls or other forms of intervention, inability to obtain labor, materials or services and other causes beyond Seller’s control. If there is a scarcity in any of its products or goods, Seller will allocate its available supply in its sole discretion.
- Purchaser shall inspect Goods within ten (10) business days after delivery of Goods and notify Seller in writing of any defects or any failure of the Goods to conform to the requirements of this Contract. All claims by Purchaser for shortages in a shipment of Goods or Goods damaged in transit must be made against the carrier. All claims by Purchaser against Seller for nonconforming Rev. Sept. 2014 Goods and claims for shortages in a shipment or damaged Goods (other than claims to be made against the carrier) must be made in writing to Seller within ten (10) business days after receipt of shipment or Purchaser shall be deemed to have accepted such Goods and any claims for nonconforming Goods shall be waived.
DISCLAIMER OF WARRANTY
SELLER DOES NOT WARRANT THE MERCHANTABILITY OF ITS PRODUCTS AND DOES NOT WARRANT THE FITNESS OF THE PRODUCTS FOR A PARTICULAR PURPOSE. SELLER DOES NOT MAKE, AND HEREBY DISCLAIMS AND EXLUDES, ANY WARRANTY, EXPRESS OR IMPLIED, OTHER THAN THE WARRANTY CONTAINED HEREIN OR OTHERWISE EXPRESSLY AGREED BY SELLER IN WRITING.
WARRANTY OF SELLER’S GOODS
- Except as specifically agreed otherwise in this Contract, Seller warrants that Goods sold by Seller hereunder shall conform to specifications agreed in writing and shall be free from material defect in material and workmanship for a period of twelve (12) months from date of shipment(the “Warranty Period”). In the event of breach of such warranty, Seller’s sole responsibility shall be to either repair or replace, at Seller’s option, any nonconforming Goods. Such replacement parts shall be provided at no cost to Purchaser, at the business establishment of Seller during regular working hours. Seller’s obligation under this warranty shall not include any cost of removal, installation, duty, taxes or any other charges whatsoever. Further, unless agreed otherwise by Seller, goods alleged to be defective must be returned to Seller at Purchaser’s expense; Seller will pay for freight expenses back to Purchaser upon confirmation that the defects are subject to warranty.
- Seller shall be under no liability for breach of the warranty set forth herein to the extent any damage or nonconformity is caused by: (i) improper installation, use, maintenance and/or service; (ii) modification or alternation by other than Seller; (iii) delays in notifying Seller of the alleged defect; (iv) equipment, component, materials or parts supplied by or on behalf of Purchaser; and/or (v) failure to perform proper long-term storage preparations per Seller’s instructions.
- If Purchaser informs Seller of a defect after the Warranty Period has expired, then Seller may, in its discretion, offer advice (free of charge) and repair or replacement of goods or additional services at Purchaser’s expense.
- There are no third party beneficiaries of the warranty granted by Seller herein.
Seller shall indemnify and hold Purchaser harmless from loss, claim, cost, expense or damage (including payment of reasonable attorneys’ fees) suffered or incurred by Purchaser and arising from any injury, death or property damage but only to the extent caused by any defect in the design or manufacture of the Goods or any negligent act or omission in the performance of the Contract, provided that Seller shall have no obligation to indemnify or hold Purchaser harmless to the extent any loss, claim, cost, expense or damage arises from or is caused by any specification, material, information or instruction provided by or on behalf of Purchaser.
Seller shall indemnify and hold Purchaser harmless from loss, claim, cost, expense or damage (including payment of reasonable attorneys’ fees) suffered or incurred by Purchaser and arising from any claim of infringement of a third party’s intellectual property rights but only to the extent caused by the Goods (including the Designs) provided by Seller hereunder, provided that Seller shall have no obligation to indemnify or hold Purchaser harmless to the extent any loss, claim, cost, expense or damage arises from or is caused by any specification, material, information or instruction provided by or on behalf of Purchaser, by Purchaser’s combination of the Goods with materials not supplied by Seller or by Purchaser’s use of the Goods other than as instructed by Seller or contemplated by this Contract. In the event Seller reasonably deems any Goods to infringe a third party’s intellectual property rights, Seller may, in its sole discretion, either license Purchaser to use the infringing content or modify the Goods so as not to infringe.
Seller’s total liability for any and all claims, damages, losses and injuries arising out of or relating to Seller’s performance or breach of any term herein shall not exceed the price of the Goods provided hereunder. IN NO EVENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL SELLER BE LIABLE FOR LIQUIDATED, INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, EXPENSES OR COSTS, INCLUDING BUT NOT LIMITED TO: (1) LOSS OF PROFITS, BUSINESS OR GOODWILL; (2) LOSS OF USE OF EQUIPMENT OR FACILITIES; OR (3) LOSS RESULTING FROM UNUSABLE MACHINERY OR FACILITY DOWNTIME, HOWSOEVER CAUSED AND EVEN IF THE POTENTIAL FOR SUCH DAMAGES WAS DISCLOSED AND/OR KNOWN.
Some jurisdictions provide rights in addition to those listed above, or do not allow the exclusion or limitation of implied warranties, or liability for incidental or consequential damages. If any provision or part of a provision of these terms is found to be illegal, invalid or unenforceable under any applicable law, such provision or part of a provision shall, insofar as it is severable from the remaining terms, be deemed omitted from these terms and shall in no way affect the legality, validity or enforceability of the remaining terms.
TERMS AND CONDITIONS OF PURCHASE
Revised December 2018
- The definition of terms used, interpretation of this Purchase Order, and the rights of the parties shall be construed under and governed by the Uniform Commercial Code of the State of Oklahoma. “Buyer” means DW-National Standard-Stillwater, LLC [and/or any of its divisions, subsidiaries, and/or affiliates]. “Seller” means the party to which this Purchase Order is addressed and also includes Seller’s principal if Seller is acting as broker or agent. “Purchase Order” means the attached or enclosed purchase order, which includes these Terms and Conditions of Purchase, all performance requirements and specifications issued hereunder, and all drawings, models, and samples furnished hereunder. “Goods” means those articles, materials, supplies, drawings, data, or other property or services described in the Purchase Order.
- If the Purchase Order is deemed to constitute an offer, it may be accepted only on terms set forth in the Purchase Order, including, without limitation, these Terms and Conditions. If the Purchase Order is deemed to constitute an acceptance of an offer, such acceptance is expressly conditioned on Seller's assent to the terms of the Purchase Order, including, without limitation, these Terms and Conditions of Purchase, and shipment of any part of the Goods or other commencement of performance shall be deemed to constitute such assent. Any additional and/or different terms and conditions proposed by Seller and/or any attempt by Seller to vary any of these terms and conditions shall be deemed a material alteration and is hereby objected to and rejected.
- Buyer may at any time, by written notice to Seller, make changes in the drawings, specifications, quantities, and delivery schedules and shipping instructions under the Purchase Order. If any such change increases or decreases the cost of performing the Purchase Order or the time required for its performance, an equitable adjustment in prices and/or delivery schedules shall be agreed between the parties as soon as practicable, but in any event no later than 10 days prior to delivery of the Goods.
- Buyer’s part number & Purchase Order number must appear on all shipping papers, invoices, parcels, or containers
- In the event of Seller’s delay or failure to perform due to a cause beyond Seller’s reasonable control, including acts of God, government action, floods, epidemics, war, or riot, but excluding strikes or other labor disturbances or disputes involving Seller, the date for Seller’s performance shall be extended for a period equal to the time lost by reason of such occurrence; provided, however, that Seller shall take reasonable measures to mitigate and minimize the effect of such event and to continue with performance of its obligations, and Buyer may, at its option, cancel the Purchase Order with no resulting cost or liability to Buyer.
- Oklahoma law shall apply to this Purchase Order and any proceeding relating hereto, notwithstanding its provisions regarding conflicts of law. If any provision or part of a provision of the Purchase Order is found to be illegal, invalid or unenforceable under any applicable law, such provision or part of a provision shall, insofar as it is severable from the remaining terms, be deemed omitted from Purchase Order and shall in no way affect the legality, validity or enforceability of the remaining terms.
- The Purchase Order constitutes the entire agreement between the parties with respect to the subject matter hereof and shall supersede all previous proposals, both oral and written, negotiations, representations, commitments, writings and all other communications between the Parties. Seller may not assign any of the amounts due or to become due and may not assign or subcontract any of the work to be performed under the Purchase Order without the prior written consent of Buyer.
- All disputes arising under or in connection with the Purchase Order shall be resolved by (a) good-faith negotiations by knowledgeable, responsible representatives of each party who are fully authorized to settle any such dispute, or (b) in the event such negotiations do not resolve such dispute, binding arbitration held in Chicago, Illinois, by a single arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Each party shall bear its own costs of these procedures; the parties shall equally split the fees of the arbitration and the arbitrator. Notwithstanding the above, either party shall have the right to seek a temporary restraining Purchase Order or an injunction related to the purposes of the Purchase Order, to compel compliance with confidentiality obligations, or to file suit to compel compliance with this dispute resolution process.
PRICE; CREDIT; WAIVER OF LIENS
The Purchase Order shall not be filled at a higher price than specified herein. If the price is omitted in the Purchase Order, the Goods shall be billed at the price last paid or quoted, or at the prevailing market price, whichever is lower. Buyer shall only be liable for such federal, state, and local taxes levied on Buyer which Seller is required by law to collect from Buyer. Seller shall not assess, and Buyer shall not be responsible for, surcharges of any kind (including, but not limited to, surcharges for raw materials, fuel, freight or otherwise), unless specifically agreed to in a writing signed by Buyer which states the applicable surcharge and the precise method or formula by which such surcharge is determined. In the event importation of the Goods results in the assessment of a countervailing duty on Buyer as the importer, Seller shall reimburse such countervailing duty to Buyer, provided such reimbursement is permitted under applicable laws and regulations.
Seller agrees that the Goods are being sold to Buyer on credit under the terms described on the face of the Purchase Order. If no credit terms are set forth or referenced on the face of the Purchase Order, payment shall be due after delivery of the Goods to Buyer, within 60 days of Buyer’s receipt of Seller’s invoice.
Invoices will be submitted by Seller to the location indicated on the Purchase Order and shall include the Purchase Order number, part number/product description, unit price, and name of person or party issuing the Purchase Order. Unless specified in the Purchase Order or agreed otherwise in writing, all invoicing and payments shall be made in U.S. dollars.
Buyer shall have the right (but no duty) to withhold payment for any amounts in dispute. Buyer shall have the right (but no duty) to withhold any payment and apply it to the payment of any obligations of Seller to Buyer arising out of the Purchase Order or any other Purchase Order or agreement between Seller and Buyer.
Seller expressly waives and releases any and all claims to any lien upon any Goods owned or purchased by Buyer. The foregoing waiver and release of liens shall not apply to any consensual security interest created under a separate Security Agreement executed by Buyer pursuant to Article 9 of the Uniform Commercial Code.
DELIVERY; RISK OF LOSS; EXCESS SHIPMENTS AND DELAYS
- Time is of the essence in the performance of the Purchase Order. In the event of Seller’s delay or failure to perform (except when due to a cause beyond Seller’s reasonable control as outlined above), Seller shall pay to Buyer, upon demand, as liquidated damages and not as a penalty, an amount equal to 1.0% of the contract price of the Goods for every week of delay beyond the delivery date specified on the Purchase Order.
- The Goods shall be suitably packed and prepared for shipment to secure lowest transportation rates (unless a premium method is specified on the face hereof) and to comply with carrier and packaging regulations, including the International Standard for Phytosanitary Measures for wood used in packaging. Unless expressly agreed to by an authorized representative of Buyer, no charges shall be allowed for packing, crating, freight express, or cartage. Buyer may select the mode of transportation, the routing of, and the carrier for the Goods. Exceptions to stated routings and terms must be secured from an authorized representative of Buyer, and Seller shall be liable for excess transportation costs resulting from any deviation from Buyer's instructions.
- Goods shall be delivered by Seller to Buyer's place of business from which the Goods were ordered, unless otherwise specified on the face hereof. Unless Buyer instructs otherwise, shipments with the same ship to address must be combined for the lowest freight rates. Seller shall not send partial shipments unless authorized.
- Unless otherwise agreed in writing, all shipments shall be F.O.B. Buyer’s destination, and risk of loss as to such Goods shall remain with Seller until after the Goods are delivered and all nonconformities are cured or accepted. The party bearing the risk of loss shall be responsible for providing adequate insurance on shipments.
- Buyer's count shall be conclusive, and Buyer shall have no liability for payment for Goods delivered in excess of the quantity specified herein unless Buyer elects to keep such excess, and then Buyer shall be liable only for the price thereof and not any incremental freight expenses. Such excess Goods shall, at Buyer’s option, be subject to rejection by Buyer and redelivery to Seller at Seller's expense.
- If, prior to the time for delivery, Seller has reason to believe that it will be unable to meet its delivery schedule, it shall immediately notify Buyer in writing indicating the cause of delay and the suppliers involved and shall use its best efforts to cure the anticipated delay. Upon receipt of such notice, or upon occurrence of an actual delay, Buyer may, in its sole discretion, (i) direct expedited routing of the Goods, with Seller being responsible for all excess costs, or (ii) cancel the Order by written notice to Seller and purchase substitute Goods elsewhere, with Seller being responsible for all resulting excess costs, including, without limitation, any increase in the price paid for the Goods and any expenses to expedite routing of the substitute Goods.
INSPECTION; REJECTION AND REVOCATION OF ACCEPTANCE
After receipt of the Goods, Buyer shall have a reasonable time, but not less than 10 days, in which to inspect and accept or reject the Goods, and payment for the Goods shall not constitute acceptance. Buyer reserves the right to reject Goods not conforming to the Purchase Order. Unless specifically agreed otherwise, Rejected Goods shall be returned to Seller for full credit or replacement, at Seller's risk and expense, including transportation costs both ways. Buyer may, at its option, purchase substitute Goods in lieu of the rejected Goods, with Seller being responsible for all resulting excess costs, including, without limitation, any increase in the price paid for the Goods and any expenses to expedite routing of the substitute Goods. Acceptance by Buyer of part of the Goods shall not bind Buyer to accept the remainder. Acceptance of all or a part of the Goods shall not deprive Buyer of the right to revoke acceptance and return any part of the Goods or the right to make a claim for damages because of the failure of the Goods to conform to the Purchase Order by reason of defects or other breach of warranty or by reason of damage caused by improper packing. Buyer shall not be liable to Seller for failure to accept the Goods for causes beyond Buyer's reasonable control.
- In addition to Seller’s standard warranty on the Goods, Seller warrants, for the longer of either 12 months after Buyer’s final acceptance of Goods or Seller’s standard warranty period, that all Goods shall (i) strictly conform to the terms, conditions, specifications, descriptions, drawings, and data specified herein or furnished herewith; (ii) be of good design, quality, material, and workmanship; (iii) be free from defects in materials and shall be merchantable and fit for their particular purpose; (iv) meet applicable industrial or governmental safety standards; (v) be manufactured and produced in compliance with all applicable laws; and (vi) be free from liens, security interests or encumbrances.
- Seller further warrants that all Goods are free of asbestos and all other hazardous substances and that no claim, demand, or notice has been filed nor any proceeding commenced alleging liability of Seller in connection with the use of asbestos and/or any other hazardous substances relating in any way to the manufacture or sale of the Goods. Seller shall provide a material safety data sheet for each substance containing a toxic substance that is purchased by Buyer from Seller, and Seller shall affix on each container containing toxic substances the chemical name and the appropriate hazard warning for the use and safe handling of the toxic substance. Seller shall provide other material safety data sheets relating to the Goods upon request.
- Seller further warrants that Seller will have title to the Goods and the right to sell such Goods at the time of delivery to Buyer, and that all such Goods shall be new and unused (unless otherwise specified in the Purchase Order) at the time of delivery to Buyer.
- Seller shall also extend to Buyer the warranties or guaranties, if any, given to Seller by any third party manufacturer of component parts and accessories incorporated into the Goods sold hereunder. Seller agrees to use its best efforts and will cooperate with Buyer in enforcing any claims against such third party manufacturer(s) for defects that may occur.
- All warranties shall survive any intermediate or final inspections, delivery, acceptance, or payment by Buyer, and all such warranties shall run to Buyer, its successors, assigns, customers, and users of the Goods. No warranties shall be deemed disclaimed or excluded except in writing signed by an authorized representative of Buyer. Repairs or replacements of defective Goods shall be made by Seller, without cost to Buyer, at any time within the applicable warranty period of the Goods, with any return shipping at Seller’s expense.
Seller shall protect and indemnify Buyer from and against any loss, cost, damage, or expense arising from infringement or alleged infringement of any patent of the United States or foreign letters patent by any of the Goods, and Seller shall defend or settle at its own expense any suit, action, or proceeding brought against Buyer for such infringement. Furthermore, in the event that Buyer should be enjoined in such suit or proceeding from using any of the Goods, Seller, at its option, shall promptly either (a) secure termination of the injunction and obtain for Buyer the right to use such Goods without any obligation or liability; (b) replace such Goods with non-infringing goods, all at Seller's expense and to Buyer's satisfaction; or (c) remove such Goods at Seller's expense and refund to Buyer the amount paid. The provisions of this paragraph shall not apply to claims, demands, suits, or injunctions directly attributable to Goods manufactured by Seller in accordance with Buyer's specific instructions, specifications, design, or drawings.
Seller shall defend, indemnify and save harmless Buyer from and against any loss, cost, damage, or expense, including but not limited to reasonable attorneys’ fees, suffered or incurred by Buyer, Buyer’s affiliates, and/or their respective directors, officers, employees and agents and/or for which any of them may be liable to any third party, due to, arising from or in connection with, directly or indirectly:
- any and all claims made against Buyer by reason of injury or death to person or damage to property suffered or claimed to have been suffered by any person or entity and caused or alleged to have been caused by defective Goods or by any act or omission of Seller or any of Seller’s subcontractors, employees, or agents;
- any and all damage to Buyer's property, including property occupied or used by or in the care, custody, or control of Seller, caused or alleged to have been caused by defective Goods or by any act or omission of Seller or any of Seller’s subcontractors, employees, or agents;
- any and all claims made against Buyer by reason of injury or death to person or damage to property, howsoever caused or alleged to have been caused, and suffered or claimed to have been suffered by Seller or any of Seller’s subcontractors, employees, or agents;
- liabilities, claims, fines, civil and criminal penalties which arise directly or indirectly out of the failure of Seller to comply with the Insurance and/or Compliance with Law provisions of the Purchase Order; and
- an actual or alleged breach of warranty under the Purchase Order or other actual or alleged breach of the Purchase Order by Seller.
In no event shall Seller be required to indemnify Buyer for any injury, death, or loss caused solely by the negligence of Buyer.
Seller shall maintain in force standard liability insurance of the type and in such amounts as reasonably satisfactory to Buyer and shall furnish Buyer, at any time upon request, with a certificate of insurance that shall provide for Buyer to receive at least 30 days’ prior written notice of modification, non-renewal, cancellation or termination.
NON-WAIVER; CUMULATIVE REMEDIES
The failure of Buyer to insist upon strict performance of any terms and conditions hereof, failure or delay to exercise any rights or remedies provided herein or by law, failure to properly notify Seller in the event of breach, the acceptance of or payment for any Goods, or approval of design, shall not release Seller from any of the warranties or obligations and shall not be deemed a waiver of any right of Buyer to insist upon strict performance or of any of its rights or remedies as to the Goods or as to any prior or subsequent default, nor shall any purported oral modification or rescission of the Purchase Order by Buyer operate as a waiver of any of the terms hereof. Any right or remedy of Buyer provided herein is in addition to Buyer's other rights and remedies provided herein or by law.
COMPLIANCE WITH LAWS
Seller warrants and agrees that it shall comply with all applicable laws, regulations and administrative requirements and not take any action that would subject Buyer penalties under U.S. or foreign laws, regulations or administrative requirements. Seller acknowledges that it has read Buyer’s Global Business Partner Code of Conduct and will comply with all terms thereof.
CANCELLATION; TERMINATION OF PURCHASE ORDER
- Buyer reserves the right to cancel any item on the Purchase Order or terminate Seller's performance under the Purchase Order, in whole or in part, by written notice to Seller, whereupon Seller shall terminate its performance on such date of notice and shall terminate all Purchase Orders and subcontracts to the extent they relate to such performance. Seller shall promptly advise Buyer of the quantities of Goods and raw material on hand or purchased prior to termination and of the most favorable disposition that Seller can make thereof. Seller shall comply with Buyer's instructions regarding disposition of Goods and raw materials. Seller shall submit to Buyer in writing notice of its intention to submit claims based on such termination within 15 days from the date of notice of termination, and all such claims shall be made in detail and substantiated by bills, receipts, and similar documents within 30 days thereafter, or such claims shall be waived. Buyer shall pay Seller the Purchase Order price of finished Goods accepted by Buyer and the cost to Seller, excluding profits and losses, of work in process and raw materials relating to the Purchase Order, less the agreed value of any Goods used or sold by Seller with Buyer's consent. Buyer reserves the right to verify such claims at any reasonable time or times by inspecting and auditing the records, facilities, work, or materials of Seller relating to the Purchase Order. Buyer will make no payments for finished work, work in process, or raw materials fabricated or procured by Seller unnecessarily in advance or in excess of Buyer's delivery requirements under the Purchase Order. Notwithstanding the above, payments made under this paragraph shall not exceed the aggregate price specified in the Purchase Order, less any payments made or to be made. Payment provided under this paragraph shall constitute Buyer's only liability in the event the Purchase Order is terminated.
- To the extent the Purchase Order covers Goods normally carried in the inventory of Seller, as distinguished from Goods specially made to Buyer's specifications, Buyer shall have no liability for any termination of the Purchase Order, in whole or in part, prior to actual shipment. For any termination for which the notice thereof is sent to Seller after receipt of Goods by Buyer, liability shall be limited to returning such Goods and reimbursing Seller the direct cost of handling and transportation.
BUYER'S PROPERTY; CONFIDENTIALITY; RIGHTS IN INVENTIONS
- Buyer retains title to all information and materials (including, but not limited to, all drawings, designs, specifications, technical data, production or product “know-how”, and/or proprietary information of Buyer, in whatever form or format, furnished to Seller to facilitate performance under the Purchase Order, and the same shall be (i) treated as Buyer's confidential information and held in strict confidence, (ii) used exclusively by Seller to complete the Purchase Order, and (iii) returned to Buyer at its direction or within 5 days after completion, termination, or cancellation of the Purchase Order, along with all copies or reproductions thereof. Seller shall restrict disclosure of such information solely to those of its employees, representatives, agents and subsuppliers who have a need to know for purposes of completing the Purchase Order and shall ensure that each recipient of such information is aware of and is made subject to the obligations to keep such information confidential.
- All property of Buyer furnished or made available to Seller for performance of work under the Purchase Order, including, but not limited to, materials, tools, tooling, special tooling (as defined below), equipment, and replacements thereof, shall remain the property of Buyer, shall be segregated from Seller's property and be individually marked and identified as Buyer's property and shall be promptly returned to Buyer at its written request, or upon termination, cancellation, or completion of the Purchase Order. Seller shall maintain and keep up-to-date a list of all such property and shall furnish the list to Buyer upon request. Such property, including, without limitation, special tooling, shall be used exclusively for performance under the Purchase Order and Seller agrees to: (i) maintain such property in good condition and assume all risks and liability for loss or damage thereto excepting normal wear; (ii) purchase insurance to cover the replacement cost thereof, with the proceeds payable to Buyer, and furnish Buyer evidence of such insurance upon request; (iii) permit inspection of such property by Buyer during normal business hours; (iv) at Buyer's request, furnish detailed statements of such inventory; and (v) fully cooperate and assist Buyer in any effort by it to obtain possession of such property through court proceedings or otherwise.
- Seller agrees to assign to Buyer and not otherwise to make use of any invention, improvement, or discovery, whether or not patentable, which is conceived or reduced to practice in performance of the work under the Purchase Order by any employee of Seller or any person working under Seller's direction. Seller shall cooperate with Buyer to complete such assignment and shall execute all documentation reasonably requested by Buyer to effect the assignment.
- Before commencing work under the Purchase Order, Seller agrees to obtain Buyer’s prior written approval for the purchase of any special tooling, describing in detail in such request each item and its price. Upon completion, cancellation, or termination of the work for which such special tooling is required, Seller shall prepare a list of Goods for which special tooling has been used, together with a detailed listing in a form acceptable to Buyer of the special tooling, including each item’s unamortized cost and fair market value, and shall upon request by Buyer, in its sole discretion, transfer title to the special tooling to Buyer, by written assignment, free and clear of liens and encumbrances, in exchange for the lesser of the tooling’s unamortized cost or fair market value, and shall transfer possession of the special tooling to Buyer, except that Buyer shall be under no obligation to purchase such special tooling. Buyer reserves the right to dispose of special tooling without taking possession thereof and to receive any salvage or resale revenues resulting therefrom. Seller agrees that Buyer shall have the right to enter Seller's premises for the purpose of obtaining possession of any special tooling.
- As used herein, “special tooling” means all patterns, dies, fixtures, molds, jigs, models, gauges, inspection devices, special cutting tools, special test devices, drawings, and templates, and any replacements thereof, which, prior to the date of the Purchase Order, were not owned or used by Seller and which Seller has been or will be required to acquire and use solely for the purpose of furnishing Goods under the Purchase Order. Special tooling does not include tools, capital items, or property owned by or furnished by Buyer.
APPLICABLE LAW AND JURISDICTION
The formation, existence, construction, performance, validity and all aspects of the agreement arising from this Purchase Order shall be governed by the laws of the People’s Republic of China without regard to its conflicts of laws principles. Buyer and Supplier agree that the United Nations Convention on contracts for the International Sale of Goods (1980) is excluded and shall not apply to the agreement arising from this Purchase Order or the transactions contemplated by such agreement.
TERMS OF PAYMENT
Terms of payment will be net 55 days from receipt of an invoice unless otherwise agreed in writing. All invoices must itemize transportation charges, taxes, and packaging separately. Buyer reserves the right to withhold payment if an invoice does not reference a valid Purchase Order number, position number, proper quantity, and item description.
COMPLIANCE WITH LAWS
Supplier will fully comply with all applicable PRC laws and regulations as well as other applicable foreign laws, ordinances, rules and codes, including, without limiting the generality of the foregoing, those relating to occupational health and evidence of compliance when requested by Buyer.
TITLE AND DELIVERY OF GOODS
Terms of sale will be Delivered Duty Paid (DDP) (Incoterms 2010) to the designated destination on this Purchase Order, unless otherwise specified.
DUTY DRAWBACK RIGHTS
This Purchase Order includes all related customs duty and import drawback rights, if any, which Supplier can transfer to Buyer (including rights developed by substitution and rights, which may be acquired from Supplier’s suppliers). Supplier agrees to inform Buyer of the existence of any such rights and to supply such documents as may be required to attain such drawback.
R&D TAX CREDIT/GRANTS
Buyer retains the right to all claims for government support for research and development, including any grants, tax credits, or tax refunds available under applicable PRC law and other applicable foreign tax incentive laws.
Supplier agrees to make best efforts to assist Buyer in participating in all governmental security/border initiatives to strengthen supply chain and border security, including but not limited to, Customs Trade Partners Against Terrorism (C-TPAT) and Partners in Protection.
These Terms and Conditions are in the English and Chinese language versions. In case of any discrepancy between the English and Chinese versions, the English language version shall prevail, and shall be controlling in all respects.
All disputes arising under or in connection with the Purchase Order, except with respect to a dispute relating to intellectual property, which dispute shall be resolved by a court of competent jurisdiction, shall be resolved by (a) good-faith negotiations by knowledgeable, responsible representatives of each party who are fully authorized to settle any such dispute, or (b) in the event such negotiations do not resolve such dispute, binding arbitration held in Hong Kong, PRC, by a panel of three arbitrators (the parties each selecting one arbitrator, and the third arbitrator being selected by the arbitrators selected by the parties) pursuant to the Administered Arbitration Rules of the Hong Kong International Arbitration Centre. The Parties agree that any arbitration shall be conducted on a one-on-one basis between Company and Representative. Each party shall bear its own costs of these procedures; the parties shall equally split the fees of the arbitration and the arbitrator. Notwithstanding the above, either party shall have the right to seek a temporary restraining order or an injunction related to the purposes of the Purchase Order, to compel compliance with confidentiality obligations, or to file suit to compel compliance with this dispute resolution process. This process does not constitute a waiver of the dispute resolution provisions of this Section 25.