PRO/MARK TERMS AND CONDITIONS OF
1. Acceptance. The following terms and conditions of sale are applicable to all quotations from Pro/Mark a Division of Illinois Tool Works Inc. (ITW), (“Seller”) and to all Purchase Orders from Seller customers (“Purchasers”) and are the only terms and conditions applicable to the sale of Seller's Products or Services, except those relating solely to prices, quantities, delivery schedules, terms of payment, invoicing, shipping instructions, or descriptions of the products set forth in Purchaser's Purchase Orders (collectively, “Purchase Order Terms”). Purchase Orders, if accepted by Seller, are accepted subject to the terms and conditions set forth herein and in Seller's quotations. SELLER HEREBY REJECTS ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS PROPOSED BY PURCHASER, WHETHER OR NOT CONTAINED IN ANY OF PURCHASER'S BUSINESS FORMS OR ON PURCHASER'S WEBSITE, AND SUCH ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS SHALL BE VOID AND OF NO EFFECT UNLESS SPECIFICALLY AGREED TO BY SELLER IN A WRITING REFERRING TO AND AGREEING TO THE CHANGE. Purchaser's acceptance of products or services (“Products or Services”) called for in said Purchase Order shall constitute its acceptance of the following terms and conditions of sale (this “Agreement”). Any changes to these terms and conditions must be in writing and signed by Seller.
2. Quotations. Quotations are only valid in writing and for 30 days from the date of the quotation unless otherwise notified. All quotations by Seller are subject to change or withdrawal without prior notice to Purchaser unless otherwise specifically stated in the quotation. Quotations are made subject to approval by Seller of Purchaser's credit. Seller shall have no obligation to sell or deliver Products or Services covered by Seller's quotation unless and until Seller issues an Order Acknowledgement form (sale and delivery will be subject to the terms of such form and this quotation) or ships Products or begins providing Services (sale and delivery will be subject to this quotation).
3. Prices. Prices are in U.S. Dollars and are subject to change without notice. If a raw material, component or service provider raises its prices, or imposes a surcharge on Seller, Seller reserves the right to increase prices and/or surcharge Purchaser and Purchaser agrees to accept such price increase or surcharge until the term of such price increase or surcharge or until termination of the contract to which these terms and conditions apply is reached. Time of payment is of the essence. All orders are accepted subject to Seller's price in effect at time of shipment. Seller anticipates use of common carriers for transport of goods. Unless specifically otherwise provided in Seller's invoice, the carrier, and not Seller, will bill for freight rates and other transportation charges. Such payments are solely the responsibility of the Purchaser, to be paid directly by the Purchaser to the carrier.
4. Taxes. Purchaser shall pay to Seller, in addition to the purchase price, the amount of all fees, duties, licenses, tariffs, and all sales, use, privilege, occupation, excise, or other taxes, federal, state, local or foreign, which Seller is required to pay or collect in connection with the Products or Services sold to Purchaser. Failure by the Seller to collect any such fees or taxes shall not affect Purchaser's obligations hereunder and Purchaser shall fully defend, indemnify and hold harmless Seller with respect to such tax obligations.
5. Quantities. Unless otherwise agreed in writing, any variation in quantities shipped over or under the quantities ordered (not to exceed 10%) shall constitute compliance with Purchaser's order and the stated price per item will continue to apply.
6. Title/Risk of Loss/Delivery. All Products shall be shipped F.O.B. Seller's plant (
7. Inspection/Damage. The Purchaser shall notify Seller and the delivering carrier promptly after receipt of Products of any damage or shortage. Any loss occasioned by damage or shrinkage in transit will be for Purchaser's account and claims for such loss shall be made solely against the carrier.
8. Inspection/Non – Conforming Shipments. The inspection rights granted to Purchaser under this paragraph will not affect or alter the payment terms or the timing of Purchaser's payment obligations. Under no circumstances will Purchaser have a right of set-off. The Purchaser will have the right to inspect goods during a period of fifteen (15) business days immediately following delivery (“Inspection Period”). Purchaser must notify Seller of any goods that do not conform to the terms applicable to their sale within the inspection period, and afford Seller a reasonable opportunity to cure any nonconformity. If Purchaser fails to provide Seller with notice of nonconformity within the Inspection Period, Purchaser shall be deemed to have accepted the goods. Purchaser will have no right to return any goods without Seller's prior written authorization. Any return authorized by Seller must be made in accordance with Seller's return policies then in effect and must be accompanied by a Return Goods Authorization (“RGA”) from Seller. Purchaser will be responsible for all costs and expenses associated with any returns of goods and will bear the risk of loss or damage of such goods, unless Seller agrees otherwise in writing or determines that the goods do not conform to the applicable terms of sale. Seller, in its sole discretion may reject any return of goods not approved by Seller in accordance with this paragraph or otherwise not returned in accordance with Seller's then current-return policies.
9. Force Majeure. Seller shall not be liable for failure to perform or delay in performance or delivery of any Products or Services due to (a) fires, floods, strikes, or other labor disputes, accidents, sabotage, terrorism, war, riots, acts of precedence or priorities granted at the request or for the benefit, directly or indirectly, of any federal, state or local government or any subdivision or agency thereof, delays in transportation or lack of transportation facilities, restrictions imposed by federal, state or local laws, rules or regulations; or (b) any other cause beyond the control of Seller. In the event of the occurrence of any of the foregoing, the time for performance shall be extended for such time as may be reasonably necessary to enable Seller to perform. Seller may, during any period of shortage due to any of the above circumstances, allocate its available supply of Products or Services among itself and its purchasers in such manner as Seller, in its judgment, deems fair and equitable.
10. Terms of Payment. Unless otherwise expressly agreed to by Seller in writing, terms of payment are 30 days net from the date of Seller's invoice. Purchaser agrees to pay interest on overdue invoices at the rate of 1 ½ % per month, but not higher than the highest rate permitted by law. All invoices are due and payable in United States dollars at Seller's address specified on the invoice. If Purchaser fails to make any payment as required, Purchaser agrees to indemnify Seller for all costs and expenses, including reasonable attorney fees, court costs, and associated costs incurred by Seller.
11. Credit Approval. All shipments to be made hereunder shall at all times be subject to the approval of Seller's credit department. Seller may invoice Purchaser and recover for each shipment made pursuant to this quotation as a separate transaction without regard to any other order or agreement with Seller, or if, in Seller's sole judgment, the financial responsibility of Purchaser is or becomes unsatisfactory, then Seller may, at its option and without prejudice to any of its other remedies, (a) defer or decline to make any shipments hereunder except upon receipt of satisfactory security or cash payments in advance, or (b) terminate all Purchase Orders of Purchaser.
12. Warranty. SELLER WARRANTS ONLY THAT THE PRODUCTS OR SERVICES SOLD HEREUNDER (A) WILL CONFORM TO A SAMPLE, IF ANY, PROVIDED BY SELLER, (B) WILL BE CONVEYED FREE AND CLEAR OF ANY LIEN, SECURITY INTEREST OR ENCUMBRANCE CREATED BY SELLER OR ANY PARTY CLAIMING BY, THROUGH OR UNDER SELLER AND (C) IF NO PRINTED SAMPLE HAS BEEN PROVIDED, WILL CONFORM TO PERFORMANCE REQUIREMENTS UNDER NORMAL USE IF PROPERLY INSTALLED AND MAINTAINED, FOR A PERIOD OF TWELVE (12) MONTHS FROM THE DATE OF MANUFACTURING. ANY CLAIM OR ACCOUNT OF DEFECTIVE PRODUCTS OR SERVICES OR FOR ANY OTHER CAUSE WHATSOEVER SHALL CONCLUSIVELY BE DEEMED WAIVED BY PURCHASER UNLESS WRITTEN NOTICE THEREOF IS GIVEN TO SELLER PROMPTLY AFTER DISCOVERY BUT NO LATER THAN TWELVE (12) MONTHS FROM THE DATE OF MANUFACTURING OR, IF RELATING SOLELY TO SERVICES, FROM THE DATE WHEN ANY SERVICES ARE PROVIDED HEREUNDER. RETURN OF PRODUCTS TO SELLER WILL NOT BE ACCEPTED WITHOUT AN RGA AS NOTED ABOVE. PURCHASERS MUST CONTACT SELLER'S CUSTOMER SERVICE DEPARTMENT FOR COMPLETE DETAILS. SELLER SHALL HAVE THE RIGHT EITHER TO REPLACE OR REPAIR ANY DEFFECTIVE PRODUCTS, TO REFUND THE PURCHASE PRICE UPON RETURN OF THE PRODUCTS OR TO GRANT A REASONABLE ALLOWANCE ON ACCOUNT OF SUCH DEFECTS. SELLER'S LIABILITY AND PURCHASER'S EXCLUSIVE REMEDY FOR DEFECTIVE PRODUCTS SHALL BE LIMITED SOLELY TO REPLACEMENT, REPAIR, REFUND OR ALLOWANCE AS SELLER MAY ELECT. SELLER SHALL BE GIVEN A REASONABLE OPPORTUNITY TO INVESTIGATE ALL CLAIMS AND NO PRODUCTS SHALL BE RETURNED TO SELLER UNTIL AFTER INSPECTION AND APPROVAL BY SELLER.
A) DISCLAIMER OF FURTHER WARRANTIES. EXCEPT AS SET FORTH ABOVE, SELLER MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND, EXPRESS OR IMPLIED (INCLUDING NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE) WITH RESPECT TO ITS PRODUCTS OR SERVICES.
B) LIMITATION OF LIABILITY AND REMEDIES. SELLER SHALL NOT BE LIABLE, AND PURCHASER WAIVES ALL CLAIMS AGAINST SELLER, FOR INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR COMMERCIAL LOSSES, WHETHER OR NOT BASED UPON SELLER'S NEGLIGENCE OR BREACH OF WARRANTY OR STRICT LIABILITY IN TORT OR ANY OTHER CAUSE OF ACTION, EVEN IF SELLER MAY HAVE BEEN ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT WILL SELLER'S LIABILITY UNDER OR IN CONNECTION WITH THE SALE OF PRODUCTS BY SELLER EXCEED THE PURCHASE PRICE OF THE SPECIFIC PRODUCTS OR SERVICES AS TO WHICH THE CLAIM IS MADE. SELLER WILL NOT BE LIABLE TO PURCHASER FOR ANY LOSS, DAMAGE, OR INJURY TO PERSONS OR PROPERTY RESULTING FROM THE HANDLING, STORAGE, TRANSPORTATION, RESALE, OR USE OF ITS PRODUCTS IN MANUFACTURING PROCESSES, OR IN COMBINATION WITH OTHER SUBSTANCES, OR OTHERWISE.
13. Cancellation. Once Seller has either accepted a Purchase Order or begun activities to satisfy a Purchase Order, the Purchase Order cannot be canceled, terminated or modified by Purchaser in whole or in part except with Seller's consent in writing and then only upon terms and conditions to be agreed upon. Purchaser shall indemnify Seller for any costs incurred, including material and labor costs, in connection with any Purchase Order that Purchaser desires to cancel, terminate or modify.
14. Waiver. No failure of Seller to insist upon strict compliance by Purchaser with these terms and conditions or to exercise any right accruing from any default of Purchaser shall impair Seller's rights in case Purchaser's default continues or in case of any subsequent default by Purchaser. Waiver by Seller of any breach by Purchaser of these terms and conditions Orders shall not be construed as a waiver of any other existing or future breach.
15. Confidential Information. All information furnished or made available by Seller to Purchaser in connection with the subject matter of this quotation or of Purchaser's Purchase Order shall be held in confidence by the Purchaser. Purchaser agrees not to use such information or disclose such information to others without Seller's prior written consent. The obligations in this paragraph will not apply to any information which (a) at the time of disclosure was or thereafter becomes, generally available to the public by publication or otherwise through no breach by the Purchaser of any obligation herein, (b) the Purchaser can show by written records was in the Purchaser's possession prior to disclosure by Seller, or (c) is legally made available to the Purchaser by or through a third party having no direct or indirect confidentiality obligation to Seller with respect to such information.
16. Ownership of Intellectual Property. All drawings, know-how, designs, specifications, inventions, devices, developments, processes and other information or intellectual property disclosed to Purchaser by Seller and all rights therein (collectively, “Confidential Information”) will remain the property of Seller and will be kept confidential by Purchaser in accordance with these terms and conditions. Purchaser shall have no claim to, nor ownership interest in, any Confidential Information and such information, in whatever form and any copies thereof, shall be promptly returned to Seller upon written request from Seller. Purchaser acknowledges that no license or rights of any sort are granted to Purchaser hereunder in respect of any Confidential Information. Graphic designs supplied by Purchaser for use in Seller Products to be delivered to Purchaser shall remain solely Purchaser's property. Any modifications to such designs by Seller, shall be solely Seller's property.
17. Infringement and Indemnification. (a) Except as set forth below, Seller agrees to defend, indemnify and hold the Purchaser harmless against any claims, costs, damages, liability and expenses resulting from actual or alleged patent, trademark, or copyright infringement, misappropriation of confidential information, or violation of any other intellectual property right, domestic or foreign, that may arise from the sale or use of any item or Product that is owned by Seller and that pertains to the subject matter of this quotation (provided that the item or Product is not modified in anyway by the Purchaser or any other party, and that the item or Product is used in the manner intended by Seller) . If a suit or claim results in any injunction or any other order that would prevent Seller from supplying any part or product falling under this quotation, or if the result of such a suit or claim would, in the reasonable opinion of Seller's counsel, otherwise cause Seller to be unable to supply such parts or products, Seller shall have the right, at its opinion, if it so chooses, to do one or more of the following: (i) secure an appropriate license to permit Seller to continue supplying said parts or products to Purchaser; (ii) modify the appropriate part or Product so that it becomes non-infringing, provided that any modification does not cause any material change to the operation or performance of the part or Product; or (iii) replace the appropriate part or Product with a non-infringing but practically equivalent part or product. (b) Purchaser agrees to defend, indemnify and hold Seller harmless against any claims, costs, damages, liability and expenses resulting from actual or alleged patent, trademark, or copyright infringement, misappropriation of confidential information, or violation of any other intellectual property right, domestic or foreign, that may arise from the making, using or selling of any part or product or using any process that is owned by the Purchaser or is designed or specified by the Purchaser and that pertains to the subject matter of this quotation. (c) If any claim is made by a third party on the basis of which indemnification may be sought under this paragraph, the party entitled to indemnification (the “Indemnified Party”) shall give written notice of such claim to the party liable for such indemnification (the “Indemnifying Party”) promptly after the Indemnified Party has actual notice of such claim. The Indemnifying Party shall have the right to defend and/or settle such claim at its expense, provided that it does so diligently and in good faith. The Indemnified Party shall cooperate with such defense and/or settlement and shall have the right to participate in (but not to control) such defense and/or settlement at its expense. No settlement shall be entered into unless the Indemnified Party shall be released from all liability for such claim.
18. Technical Data. All physical properties, statements and recommendations are either based on the tests or experience that Seller believes to be reliable, but they are not guaranteed. Seller bases its tests on sample substrates provided by Purchaser. Once a Heat Transfer had been approved by a Purchaser and agreed to be applied on a given substrate, Seller is not responsible for the quality of such label if applied on a different substrate or fabric.
19. Tooling / Mold / Dies. Unless otherwise agreed in writing signed by Seller, all material, equipment, facilities, and special tooling, (which term includes but is not limited to tools, jigs, dies, fixtures, molds, patterns, special taps, special gauges, special test equipment, and manufacturing aids and replacements thereof), used in the manufacture of the Products covered by any Purchase Order shall remain the property of Seller. Any material, tooling, or equipment furnished to Seller by Purchaser shall be and remain the personal property of Purchaser with the title to and right of possession remaining in Purchaser.
20. Product Use. User is solely responsible for determining whether the Seller Product is fit for a particular purpose and suitable for user's method of application. Accordingly, and due to the nature and manner of use of Seller's products, Seller is not responsible for the results or consequences of use, misuse or application of its products by anyone.
21. Inventory. Except as provided in Sections 8 and 12 hereof, Seller will neither accept return of product, or packing material, nor be responsible for their destruction.
22. Construction. All sales, agreements for sale, offers to sale, proposals acknowledgements and contracts of sale, including but not limited to, Purchase Orders accepted by Seller, shall be considered a contract under the laws of the State of Connecticut, USA, and the rights and duties of all persons, and the construction and effect of all provisions hereof, shall be governed by a construed according to the laws of the State of Connecticut, USA.
23. Jurisdiction and Venue. Any dispute arising out of or related to Seller quotations, Purchaser's Purchase Orders, or these terms and conditions shall be litigated exclusively in a state or federal court located in Hartford, Connecticut, and the parties hereby agrees to the jurisdiction and venue of such courts.
24. Litigation costs. If any litigation or arbitration is commenced between Seller and Purchaser concerning any provision of these terms and conditions, a Seller quotation, or a Purchaser Purchase Order, the party prevailing in the litigation or arbitration is entitled, in addition to such other relief that is granted, to a reasonable sum as and for their attorney's fees in such litigation or arbitration, provided that if each party prevails in part, such fees shall be allocated in such manner as the court or arbitrator shall determine to be equitable in view of the relative merits and amounts of the parties' claims.
25. Assignment and Delegation. No assignment of any rights or interest or delegation of any obligation or duty of Purchaser under these terms and conditions, a Seller quotation, or Purchaser's Purchase Order may be made without the written consent of Seller. Any attempted assignment or delegation will be wholly void and totally ineffective for all purposes.
26. Integration Clause. These terms and conditions, together with Seller's quotation and Purchase Order Terms in a Purchaser Purchase Order accepted by Seller, constitutes the entire contract of sale and purchase between Seller and Purchaser with respect to the products covered by this Purchase Order, and supersedes any prior agreements, understandings, representations and quotations with respect thereto. No modification hereof shall be of any force or effect unless in writing and signed by the party claiming to be bound thereby. Any conflict among these terms and conditions, Seller's quotation, and Purchase Order Terms or any Purchaser Terms on the internet, shall be resolved by giving first priority to these terms and conditions, second priority to Seller's quotation not inconsistent with these terms and conditions, and third priority to Purchase Order Terms or any Purchaser Terms on the internet not inconsistent with the above.
27. Cumulative Remedies. The remedies herein reserved by Seller shall be cumulative and in addition to any other legal remedies available to Seller, at law or in equity.
28. Limitation of Actions. Notwithstanding any contrary statute of limitations, any cause of action for any alleged breach of these terms and conditions Seller shall be barred unless commenced by Purchaser within six (6) months from the accrual of such cause or action.
29. Headings. Paragraph heading contained herein are fore reference only and shall not be considered a substantive part of these terms and conditions.
30. Severability. If any provision of this terms and conditions shall be held to be unlawful or unenforceable, the remaining provisions for these terms and conditions shall remain in full force and effect.
ITW Purchase Order Terms and
Conditions
1. Acceptance ‑ Agreement. Seller's commencement of work on the goods subject to this purchase order or shipment of such goods, whichever occurs first, shall be deemed acceptance of this purchase order. Any acceptance of this purchase order is limited to acceptance of the express terms contained on the face and back of ITW’s Purchase Order or other contract. Any quote or proposal for additional or different terms or any attempt by Seller to vary in any degree any of the terms of this offer in Seller's acceptance is hereby objected to and rejected, but such proposals shall not operate as a rejection of this offer, and this offer shall be deemed accepted by Seller without said additional or different terms. If an ITW purchase order shall be deemed an acceptance of a prior quote or offer by Seller, such acceptance is limited to the express terms contained on the face and on the back hereof.
2. Termination for Convenience of Purchaser. Purchaser reserves the right to terminate
this order or any part hereof for its sole convenience. In the event of such termination, Seller
shall immediately stop all work hereunder, and shall immediately cause any of
its suppliers or subcontractors to cease such work. Seller shall be paid actual direct costs
resulting from termination. Seller shall
not be paid for any work done after receipt of the notice of termination, nor
for any costs incurred by Seller's suppliers or subcontractors which Seller
could reasonably have avoided.
3. Termination for Cause. Purchaser may also terminate this order or
any part hereof for cause in the event of any default by the Seller or if the
Seller fails to comply with any of the terms and conditions of this offer. Late deliveries, deliveries of products which
are defective or which do not conform to this order, and failure to provide
Purchaser, upon request, of reasonable assurances of future performance shall
all be causes allowing Purchaser to terminate this order for cause. In the event of termination for cause,
Purchaser shall not be liable to Seller for any amount, and Seller shall be
liable to Purchaser for any and all damages sustained by reason of the default
which gave rise to the termination.
4. Proprietary Information ‑
Confidentiality ‑ Advertising.
Seller shall consider all information furnished by Purchaser to be
confidential and shall not disclose any such information to any other person,
or use such information itself for any purpose other than performing this
contract, unless Seller obtains written permission from Purchaser to do
so. This paragraph shall also apply to
drawings, specifications, or other documents prepared by Seller or the like for
Purchaser in connection with this order.
Seller shall not advertise or publish the fact that Purchaser has
contracted to purchase goods from Seller, nor shall any information relating to
the order be disclosed without Purchaser's written permission.
5. Ownership of Inventions. All drawings, know-how, designs, confidential information, and the like disclosed to Seller by Purchaser and all rights therein will remain the property of Purchaser and will be kept confidential by Seller in accordance with these terms and conditions. The Seller shall have no claim to, nor ownership interest in, any information provided or communicated by the Purchaser, and such information, in whatever form and any copies thereof, shall be promptly returned to the Purchaser upon written request from the Purchaser. Seller acknowledges that no license or rights of any sort are granted to Seller under this Agreement in respect of any rights in Purchaser’s information, developments, devices, processes, or other intellectual property arising therefrom. Should the Seller perform development work in producing the material covered by this Purchase Order, the Purchaser shall receive a full and complete, worldwide, non-exclusive, royalty-free license to make, have made, use or sell any intellectual property developed through such development work.
6. Equipment. All tool, dies or any equipment (“devices”) furnished to Seller by Purchaser, or specifically paid for by Purchaser, shall be the Purchaser’s property and it is understood and agreed that these devices may be inspected and/or removed by Purchaser at any time Purchaser desires to do so without additional cost. These devices shall be used only for purposes of manufacture of products to be sold to Purchaser. Seller shall bear any taxes assessed against such devices and the full cost of preparing and crating for shipment as directed by Purchaser upon completion of such orders as Purchaser may give. The devices shall be kept free of liens and encumbrances at all times, without expense to Purchaser. The devices shall not be removed from Seller’s plant without Purchaser’s consent. Payment for invoices for such devices are subject to Purchaser written approval of samples from such devices. Production samples must have written approval before any production shipments are made unless a written exception to this rule is submitted by Purchaser’s authorized representative. Seller shall return all such devices, including all tooling, dies and equipment immediately upon the written request of the Purchaser. If Seller fails to return any such items, Seller shall be liable to the Purchaser for any damages arising out of such retention, including all attorneys' fees and costs that may be required to obtain the return of the Purchaser's property.
7. Infringement Indemnification. The Seller agrees to defend, indemnify and hold the Purchaser, its successors, assigns, agents and users of its products and processes harmless against any claims, costs, damages, liability and expenses resulting from actual or alleged patent, trademark, or copyright infringement, misappropriation of confidential information, or violation of any other intellectual property right, domestic or foreign, in the manufacture, use or disposition of any article or material supplied hereunder.
8. Warranty.
Seller expressly warrants that all goods or services furnished under
this Agreement shall conform to all contract specifications and appropriate
standards, that the goods will be new, and will be free from defects in
material or workmanship. Seller warrants
that all such goods or services will conform to any statements made on the
containers or labels or advertisements for such goods or services, and that any
goods will be adequately contained, packaged, and marked and labeled in
accordance with Purchaser’s requirements and all laws relating thereto. Seller
warrants that all goods or services furnished hereunder will be merchantable,
and will be safe and appropriate for the purpose for which goods or services of
that kind are normally used. If Seller
knows or has reason to know the particular purpose for which Purchaser intends
to use the goods or services, Seller warrants that such goods or services will
be fit for such particular purpose.
Seller warrants that goods or services furnished will conform in all
respects to samples provided to Purchaser.
Inspection, test, acceptance or use of the goods or services furnished
hereunder shall not affect the Seller's obligation under this warranty, and
such warranty shall survive inspection, test, acceptance and use. Seller's warranty shall run to Purchaser, its
successors, assigns and customers, and users of products sold by
Purchaser. In addition to all other
remedies, Seller agrees to replace or correct defects in any goods or services
not conforming to the foregoing warranty promptly, without any expense to Purchaser,
when notified of such nonconformity by Purchaser, provided Purchaser elects to
provide Seller with the opportunity to do so.
In the event of failure of Seller to correct defects in or replace
nonconforming goods or services promptly, Purchaser, may make such corrections
or replace such goods and services and charge Seller for the cost incurred by
Purchaser in doing so. Seller shall be
liable for incidental or consequential damages resulting from failure to
conform to any contract specifications.
9. Price Warranty. Seller warrants that the prices for the
articles sold Purchaser hereunder are not less favorable than those currently
extended to any other customer for the same or similar articles in similar
quantities. In the event Seller reduces
its price for such article during the term of this order, Seller agrees to
reduce the prices hereof correspondingly. Seller warrants that prices shown on
this purchase order shall be complete, and no additional charges of any type
shall be added without Purchaser's express written consent. Prohibited additional charges include, but
are not limited to, shipping, packaging, labeling, custom duties, taxes,
storage, insurance, boxing or crating.
10. Force
Majeure. Purchaser may delay
delivery or acceptance occasioned by causes beyond its control. Seller shall hold such goods at the direction
of the Purchaser and shall deliver them when the cause affecting the delay has
been removed. Purchaser shall be
responsible only for Seller's direct additional costs in holding the goods or
delaying performance of this agreement at Purchaser's request. Causes beyond Purchaser's control shall
include, but are not limited to, government action or failure of the government
to act where such action is required, fire, flood, transportation difficulties
or unusually severe weather.
11. Insurance. In the event that performance of services by
Seller's employees, or persons under contract to Seller, is to be done on
Purchaser's property, or property of Purchaser's customers, the Seller agrees
that all such work shall be done as an independent contractor and that the
persons doing such work shall not be considered employees of the
Purchaser. Seller shall maintain all
necessary insurance coverages, including public liability and Workers'
Compensation insurance. Seller agrees to
name Purchaser as an ADDITIONAL NAMED INSURED on any of its primary and excess
insurance policies for either product liability or general liability coverage
arising out of the sale of any goods or performance of work under this
Agreement. Seller shall furnish to Purchaser a certificate of insurance
evidencing this coverage, but failure of the Seller to provide such certificate
shall not be deemed a waiver of this requirement. Seller shall indemnify and save harmless and defend Purchaser from any
and all claims or liabilities arising out of the work covered by this
paragraph.
12. Indemnification. Seller shall defend, indemnify and hold
harmless Purchaser against all damages, claims or liabilities and expenses
(including attorneys' fees) arising out of or resulting in any way from any
breach of warranty or actual or alleged defect in the goods or services
purchased hereunder, or from any act or omission of Seller, its agents,
employees or subcontractors. This
indemnification shall be in addition to the warranty obligations of Seller.
13. Changes. Purchaser shall have the right
at any time to make changes in drawings, designs, specifications, materials,
packaging, time and place of delivery and method of transportation. If any such
changes cause an increase or decrease in the cost, or the time required for the
performance, an equitable adjustment shall be made and this Agreement shall be
modified in writing accordingly. Seller agrees to accept any such changes
subject to this paragraph.
14. Inspection/Testing. Payment for the goods delivered hereunder
shall not constitute acceptance thereof. Purchaser shall have the right to
inspect such goods and to reject any or all of said goods which are in
Purchaser's judgment defective or nonconforming. Goods rejected and goods supplied in excess
of quantities called for herein may be returned to Seller at its expense and,
in addition to Purchaser's other rights, Purchaser may charge Seller all
expenses of unpacking, examining, repacking and reshipping such goods. In the
event Purchaser receives goods whose defects or nonconformities are not
apparent on examination, Purchaser reserves the right to require replacement,
as well as payment of damages. Nothing
contained in any purchase order shall relieve in any way the Seller from the
obligation of testing, inspection and quality control.
15. Entire Agreement. The purchase order, and any documents referred
to on the face hereof, constitute the entire agreement between the parties.
16. Assignments and Subcontracting. No part of this order may be assigned or
subcontracted without prior written approval of Purchaser.
17. Set-off.
All claims for money due or to become due to Seller shall be subject to
deduction or set-off by the Purchaser by reason of any claim arising out of
this or any other transaction with Seller.
18. Shipment. If in order to comply with Purchaser's
required delivery date it becomes necessary for Seller to ship by a more
expensive way than specified in this purchase order, any increased
transportation costs resulting therefrom shall be paid for by Seller, unless
the necessity for such rerouting or expedited handling has been caused by
Purchaser.
19. Waiver.
Purchaser's failure to insist on performance of any of the terms or
conditions herein or to exercise any right or privilege or Purchaser's waiver
of any breach hereunder shall not thereafter waive any other terms, conditions,
or privileges, whether or not of the same or similar type.
20. Delivery. Time is of the essence in this contract, and
if delivery of items or rendering of services is not or will not be completed
by the time promised, Purchaser reserves the right, without limitation or
liability, in addition to its other rights and remedies, to terminate this
contract by notice effective when received by Seller as to items not yet
shipped or services not yet rendered and to purchase substitute items or
services elsewhere and charge Seller with any loss incurred.
21. Limitation on Purchaser's Liability ‑ Statute of Limitations. In no event shall Purchaser be liable for anticipated profits or for incidental or consequential damages. Purchaser's liability on any claim of any kind for any loss or damage arising out of or in connection with or resulting from this agreement or from the performance or breach thereof shall in no case exceed the price allocable to the goods or services or unit thereof, which gives rise to the claim. Purchaser shall not be liable for penalties of any kind or description. Any action resulting from any breach on the part of Purchaser as to the goods or services delivered hereunder must be commenced within one year after the cause of action has accrued.
22. Compliance with Laws. Seller guarantees that all goods delivered or services performed (including production of such goods) by Seller pursuant to an order will comply with all applicable federal, state and local laws, ordinances and regulations to the extent applicable to such goods and/or services and Seller shall indemnify Purchaser, its customers (if any) and users from and against any and all claims, or liability arising from failure of such goods and/or services to comply therewith. Without limiting the generality of the foregoing regulations, rulings or executives orders thereunder (or any amendments thereof, successors thereto, or other similar laws and regulations), any and all such provisions are incorporated herein by reference. Applicable laws, regulations, rulings and executive orders include, but are not limited to, the following:
(a) The Fair Labor Standards Act (29 U.S.C. 201-219);
(b) Executive Order 11246 as amended, the Rehabilitation Act of 1973 as amended, the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 as amended, and their implementing regulations at 41 CFR Part 60. Seller also agrees to comply with Executive Order 13201 and its implementing regulation at 29 CFR Part 470;
(c) Occupational Safety and Health Act of 1970 (84 U.S. Stat 1590), as amended and state plans approved under such act and the regulations thereunder; and the
(d) Veterans Compensation, Education and Employment Amendment of 1982.
23. Settlement of Disputes. Purchaser has a right to all remedies provided by law in connection with the purchase order and such remedies shall be cumulative. A waiver of a breach of any purchase order provision shall not constitute a waiver of any other breach of this purchase order.
24. Applicable Law. This agreement shall be governed and interpreted by the State of Illinois, U.S.A., and not the United National Convention for International Sale of Goods. All disputes involving this agreement shall be adjudicated in Chicago, Illinois, U.S.A.
25. Waiver of Jury Trial. Each party waives, to the fullest extent permitted by law, the right to trial by jury in any legal proceedings arising out of or relating to this Agreement.
26. Fees and Costs. In any arbitration or legal action filed under this Agreement, the prevailing party will be entitled to all of its fees and costs, including reasonable attorney’s fees.