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Terms & Conditons

AGREEMENT:  This order is Buyer’s offer to Seller and becomes a binding contract, subject to the terms hereof, when accepted by acknowledgment or commencement of performance by Seller.  Buyer objects to all additions, exceptions, or changes to these terms, whether contained in any printed form of Seller or elsewhere, unless such terms are approved by Buyer in writing.  To the extent there are any inconsistencies between such terms and those written on the face of this order, the latter will control.  This order constitutes the entire agreement between the parties with respect to the goods and/or services reflected in this order and all prior understandings between the parties related to such goods and/or services are superseded except to the extent that the terms of this order are in conflict with a written agreement fully executed by both parties in which case the terms of the fully executed agreement control.

2. PRICE:  Unless otherwise specified, the prices stated on the front of this order include all charges for packing, hauling, storage, and transportation to point of delivery.  Sales and use taxes not subject to exemption shall be stated separately in Seller’s invoice.  Seller warrants that the prices quoted in this order are no greater than those currently charged any other buyer for similar quantities of goods or services.  Any price reduction extended to others by Seller prior to delivery shall also be extended to Buyer.  In the event Seller breaches this warranty, the prices of the products shall be reduced accordingly retroactive to the date of such breach.

3. PACKING:  The products shall be packed and shipped by Seller in accordance with Buyer’s instructions and good commercial practice and so as to insure that no damage shall result from weather or transportation.

4. CHANGES:  Buyer may give written notice at any time to make changes in the delivery date, scope, or quantity of the goods or services covered by this order or in other terms hereof, in which event an equitable adjustment will be made to any price, time of performance, and other provisions of this order if appropriate.  Claims for such an adjustment must be made within fifteen (15) days from the date of receipt by Seller of notice of the change.  Substitutions or changes in package count or size or quantities or specifications or changes in labels, labeling or packaging of goods private labeled for Buyer by Seller shall not be made without Buyer’s prior written approval.

5. OVERSHIPMENTS:  Overshipments of goods not approved by Buyer in writing will be returned at Seller’s expense if such overshipment exceeds 5% of the total quantity.

6. WARRANTY:

(a) Seller expressly warrants that the goods or services ordered shall be merchantable; shall conform to this order, to specifications, drawings, and other descriptions referenced in this order, and to any accepted samples; shall be free from defects in materials and workmanship; shall be free from defects in design unless the design was pursuant to a design supplied by Buyer.  Seller warrants that it has clear title to the goods and that the goods and services shall be delivered free of liens and encumbrances.

(b) Seller warrants that all products sold to Buyer shall be Year 2000 compliant and Seller’s supply of product to Buyer under this order shall not be interrupted due to problems relating to the Year 2000.

(c) All these warranties and other warranties as may be prescribed by law shall extend to Buyer, its successors, assigns, and customers and to users of the goods or services and shall run through any expiration date stated on the goods, or, if no expiration date is stated, then for a period of one (1) year after delivery.  Claims under these warranties must be made within the applicable period prescribed by statute.

7. INSPECTIONS; TESTING:  Goods or services purchased under this order are subject to Buyer’s reasonable inspection, testing, and approval at Buyer’s destination.  Buyer reserves the right to reject and refuse acceptance of goods or services which are not in accordance with this order or Seller’s representations or warranties, express or implied.  Buyer will charge Seller for the cost of inspecting rejected goods or services.  Rejected goods or services may be returned to Seller, or held by Buyer, at Seller’s risk and expense.  Payment for any goods or services under this order shall not be deemed acceptance of the goods or services.  Upon the request of Buyer, if Seller fails to promptly replace or correct any goods or services so returned to Buyer’s satisfaction, Buyer may purchase or replace same and Seller shall be liable to Buyer for any additional costs thereby incurred by Buyer.

8. RECALL:  In the event that a recall of the goods or product corrective action is necessitated by a defect, a failure to conform to the specifications, applicable laws, or any other reason within Seller’s control not due to Buyer’s negligent act or omission,  Seller shall bear all costs and expenses of such recall or corrective action including, without limitation, costs of notifying customers, customer refunds, costs of returning goods, lost profits, and other expenses incurred to meet obligations to third parties.

9. SPECIAL LAWS:  In filling this order, Seller will comply with all applicable international/national, state, provincial and local laws, ordinances, regulations, rules, declarations, interpretations and orders issued thereunder.

10. INDEMNIFICATION:  Seller shall defend, indemnify and hold Buyer, its successors, assigns, officers, directors, employees, customers, and users of the goods or services harmless with respect to all claims, liability, damage, loss and expenses, including attorney’s fees incurred, relating to or caused by, or arising from:

(a) actual or alleged patent, copyright, or trademark, infringement or violation of other proprietary rights, arising out of the purchase, sale, or use of the goods or services covered by this order;

(b) actual or alleged defects in the services or in the design, manufacture or material of the goods;

(c) actual or alleged breach of warranty;

(d) failure of Seller to deliver the goods or services on a timely basis, including liquidated damages and costs to recover; or,

(e) failure of the goods or services to meet the requirements of the applicable federal, state, and local law, ordinances, regulations, rules, declarations, interpretations and orders law.

In the event of a claim under this paragraph, Buyer may at its option terminate this order or defer acceptance of the balance of the goods or services ordered until the claim is resolved.  If Buyer is enjoined from use of the goods, Seller shall, at Buyer’s option, either procure for Buyer the right to continue using the goods, replace the goods with substantially equivalent goods, modify the goods so as to be usable by Buyer, or repurchase the goods at the price set forth in this order.  This Paragraph 10 shall not be construed to indemnify Buyer for any loss to the extent it is attributable to Buyer’s design, specification, or negligence.

11. INSURANCE:  Seller shall, at its sole expense, obtain and keep in force, for three years after the last delivery under this order, the following insurance covering the Seller and  the Seller’s agents, employees, representatives and subcontractors:

         (a)     Comprehensive or Commercial General Liability in an amount not less than $3 Million each occurrence combined single limit for bodily injury and property damage for: (1) Premises-Operations, (2) Products/Completed Operations Liability (3) Vendors Liability (4) Blanket Contractual Liability (5) Personal injury (6) Independent Contractor’s Protective Liability (if subcontractors employed to perform portions of the Services).

If services are to be performed under this order while on Buyer’s premises, the above insurance obligations of Seller shall also include:

(b) Comprehensive Automobile Liability for owned, hired and non-owned motor vehicles with the same coverage amounts as specified above;

(c) Workers’ Compensation in accordance with applicable statutory requirements and Employer’s Liability in an amount of not less than $1 Million;   

(d) if equipment installation or refurbishing/remodeling/minor construction of existing facilities is part of this order, All Risk Installation Floater Property Insurance covering loss or damage to the Seller’s property damage arising out of the installation, assembly, or testing of equipment or construction at Buyer’s facility;

(e) Fidelity Bond in an amount not less than $1 Million, with an acceptable surety company,  for all of the Seller’s employees.

  Prior to any delivery of product, service or equipment under this order, Seller shall furnish Buyer with certificates of insurance evidencing the required insurance, which shall name Buyer as an additional insured as regards to paragraphs (a) and (b), and require at least thirty (30) days’ written notice to Buyer prior to any cancellation, nonrenewal or material change in coverage.

12. RISK OF LOSS:  Risk of loss or damage to the products shall be on Seller until the products have been delivered to and accepted by Buyer notwithstanding any other terms contained herein.  All products will be received by Buyer subject to its right of inspection and rejection.  Buyer shall be allowed a reasonable period of time to inspect the products and to notify Seller of any non-conformance with the terms and conditions of the order.  Buyer may reject any products which do not conform to the terms and conditions of this order.  Product so rejected may be returned to Seller or held by Buyer at Seller’s risk and expense.

13. BUYER-FURNISHED MATERIAL:  Seller shall not use, reproduce, or appropriate for or disclose to anyone other than Buyer, any material, tooling, dies, drawings, designs, or other property or information furnished by Buyer (“Material”) nor shall Seller use the same to manufacture more products than are required hereunder without Buyer’s prior written approval.  Title to all Material shall remain in Buyer at all times, and where practicable the Material shall be clearly marked or tagged to indicate this ownership.  Seller shall bear the risk of loss or damage to the Material until it is returned to Buyer.  All Material, whether or not soiled or used, shall be returned to Buyer at termination or completion of this order unless Buyer shall otherwise direct.  This provision shall survive termination of this order.

14. NOTICE OF LABOR DISPUTES:  Whenever an actual or potential labor dispute is delaying or threatens to delay the timely performance of this order, Seller shall immediately give notice thereof, including all relevant information with respect thereto, to Buyer.  Seller shall insert the substances of this paragraph in any subcontract hereunder so that each such subcontract shall provide that in the event its timely performance is delayed or threatened by delay by any actual or potential labor dispute, the subcontractor shall immediately notify Seller of all relevant information with respect to such dispute.

15. TRADEMARKS:  Buyer warrants that all of the trademarks Buyer requests Seller to affix to the products purchased are those owned by Buyer and it is understood Seller shall not acquire or claim any rights, title, or interest therein, or sue any such trademarks on any products produced for itself or any one other than Buyer.

16. REFERENCES TO BUYER:  Except to the extent required by law, Seller shall make no reference, advertisement, or promotion regarding Buyer or Buyer’s purchase or use of the goods or services covered by this order without prior written consent of Buyer.

17. USE OF SELLER’S INFORMATION:  All information disclosed to Buyer in connection with this order is furnished as part of the consideration for Buyer’s placement of this order.  This information is not to be treated as confidential or proprietary, and no claim will be asserted against Buyer, its assigns, or customers for its disclosure or use.

18. TERMINATION:

(a) Buyer may terminate this order, in whole or in part, without liability to Buyer,  if Buyer anticipates Seller’s breach of this order and Seller does not provide adequate assurance of its performance within ten (10) days of Buyer’s request; if deliveries are not made at the time or in the quantities specified; or in the event of a breach or failure by Seller to meet other terms of this order which remains uncured within ten (10) days following Buyer’s request.  This right shall be in addition to any other remedies provided Buyer by law.

(b) Buyer may terminate this order, in whole or in part, at any time for its convenience by notice to Seller in writing.  Upon receipt of such notice, Seller shall, to the extent specified in such notice, stop work under this order (by itself and permitted subcontractors).  Seller’s  sole compensation for such termination shall be payment by Buyer of the percentage of the total order price corresponding to  the proportion of work completed in filling the order prior to such notice, plus any reasonable expenses incurred by Seller in terminating orders and work in progress.  Such termination claim must be submitted to Buyer within sixty (60) days of the date of termination and shall be subject to audit by Buyer.

(c) Upon any termination under this paragraph, title to all equipment, materials, work-in-progress, finished  products, plans, drawings, specifications, information, special tooling, and any other items for which Seller may submit a claim shall vest in Buyer and Seller shall promptly deliver these items to Buyer and take all necessary action to protect such property prior to such delivery.  The provisions of paragraph 5 through 18 and 20 shall survive any expiration or termination of this order.

(d) Buyer shall have the right to audit all elements of any termination claim and Seller shall make available to Buyer on request all books, records, and papers relating thereto.

19. SETOFF:  Any counterclaims against Seller or any of its related entities by Buyer or any of its related entities which arise out of this or any other transaction may be set off against any money due Seller under this order.

20. ASSIGNMENT; SUBCONTRACTING:  Seller shall not assign this order or subcontract any material portion of the performance of it without Buyer’s prior written consent.  If any goods are made to Buyer’s design, all subcontracting by Seller shall be subject to Buyer’s prior written consent.  Seller’s right to receive payment under this order may not be assigned to any person or entity without Buyer’s prior written consent.

21. CONTROLLING LAW:  This order and the performance under it shall be controlled and governed by the law of the country shown in Buyer’s address on the face of this order, and Seller hereby submits to the jurisdiction of the courts of that state for purposes of resolving any dispute.

22. GENERAL:  All warranties shall be construed as conditions as well as warranties.  No waiver or a breach of any provision of this order shall constitute a waiver of any other breach or provision.  No modification or change in, or departure from, or waiver of the provisions of this order shall be valid or binding unless approved by Buyer in writing.