PURCHASE TERMS AND CONDITIONS
The following Purchase Terms and Conditions (“Terms”) apply to every proposal, sale order, purchase order, or other writing (“Purchase Order”) for the purchase of materials, equipment, or other goods (“Goods”) by Certified Industrial Partners, Inc. (“Buyer”). The Purchase Order governs the purchase of Goods from the supplier, manufacturer, or person selling such Goods to Buyer and identified as the contracting selling party on the Purchase Order (“Seller”). These Terms, the Purchase Order, and all documents explicitly incorporated by reference in writingherein or therein, constitute the entire agreement of the Parties (“Agreement”). Seller and Buyer are sometimes referred to herein as the “Parties” or individually as a “Party.” Seller acknowledges and agrees these Terms are an integral part of the Purchase Order and are binding upon Seller.
1. APPLICABILITY.
a. Seller acknowledges and agrees these Terms govern the Purchase Order between Buyer and Seller. The Purchase Order is Buyer’s offer to purchase to Seller, to which Seller’s signature, acceptance of payment, or commencement of performance to fill the Purchase Order constitute Seller’s unqualified acceptance of the Agreement, which is a binding and enforceable contract.
b. To the extent Seller proposes or submits terms and conditions with acknowledgment or acceptance of the Purchase Order, or otherwise, Buyer objects to such terms and conditions, which shall have no effect unless expressly agreed in writing by Buyer. Seller agrees these Terms shall prevail and govern in all cases, except as otherwise provided in Section 28 or as explicitly agreed in writing by Buyer.
c. Buyer’s offer to purchase Goods through the Purchase Order or any acceptance by Buyer of any offer made by Seller is expressly conditioned upon Seller’s acceptance of, and assent to, these Terms. The Agreement merges and supersedes any understandings, agreements, course of dealing or performance, transactions, or usage of trade that purport to modify, vary, explain, supplement or contradict this Agreement. Unless otherwise specified in writing, all Purchase Orders made by Buyer are effective for fourteen (14) days from the date of the Proposal, which is the time such Proposal is sent to Buyer. Buyer reserves the right in its sole discretion to refuse any shipment of Goods that do not conform to these Terms.
2. PRICES.
All prices shall be gross and shall include any taxes (including but not limited to, value added taxes, import fees and taxes, and any other city, county, state, or federal taxes where applicable). Price quotes shall be based on the quoted terms of shipment, and shall include any charges for transportation, freight, storage, special handling, demurrage, insurance, or any other similar charges, costs, or fees.
3. PAYMENT TERMS.
Payment in full shall be made by Buyer within the time frame or not later than the date set forth in the Purchase Order, or if no payment date is set forth in the Purchase Order, then within ninety (90) days from the date of delivery and acceptanceof the Goods. Buyer shall have the right to set-off any amount owing from Seller to Buyer against any amount payable from Buyer to Seller.
4. SHIPMENT, DELIVERY AND RISK OF LOSS.
Unless otherwise expressly agreed to in writing by the Parties, the Parties agree all shipments are FCA, Incoterms. Any additional charges incurred for shipping by Seller-designated carriers, specialized carriers or Seller-designated shipments beyond reasonable dispatch are the exclusive responsibility of Seller. Unless otherwise agreed, Buyer reserves the right to select the mode of transportation. If delivery of the goods requires specialized transportation equipment, including platforms or low beds, Seller shall bear all such costs and if Buyerunder any circumstance incurs those costs, Seller agrees to promptly reimburse Buyer for such costs. Risk of loss for the Goods is assumed by Seller and passes to Buyer upon thedesignated Incoterm and any claims for shortage or damages suffered prior to such time are the responsibility of Seller and shall be submitted by Seller directly to the carrier. Neither Seller nor the carrier or any consignee shall have the right to divert or reconsignsuch shipment of Goods to any carrier or destination other than specified in the bill of lading without Buyer’s prior written consent. Time shall be of the essence for the Purchase Order and all orders between Seller and Buyer. Seller hereby agrees and acknowledges that any delays in shipment caused by Seller will harm Buyer and cause Buyer to incur damages. Seller agrees to indemnify, defend, and hold harmless Buyer and its respective officers, directors, employees, agents, affiliates, subcontractors, successors and assigns from and against any and all claims, actions, suits, demands, damages, liabilities, obligations, and other losses, including reasonable attorneys’ fees and court costs arising therefrom or related thereto, claimed from or against Buyer and related to delays in shipment or the failure to ship Goods by the date specified on the Purchase Order.
5. PACKING AND INVOICING.
An itemized packing list must accompany each shipment of Goods and clearly indicate Buyer’s name, quantity shipped, part number, manufacturer’s part number, drawing number, description, number of packages included in the shipment, and Purchase Order number. Each Goods package must be numbered and labeled with the Purchase Order number. Invoices, shipping notices, bills of lading, and all other documents or communications related to a Purchase Order must include the Purchase Order number and product number(s) and shall be mailed to the address specified by Buyer within one business day after shipment unless Buyer specifies a different time. Invoices shall be rendered in hard copy form and sent via US mail or in electronic form and sent via email based on the requirements of the Purchase Order and shall be directed to the billing address as specified in the Purchase Order, or to an address otherwise specified in writing by Buyer. Purchase Orders shall be invoiced individually and in no instance shall an invoice cover more than one Purchase Order.
6. CANCELLATION.
Buyer shall have the right to cancel any Purchase Order at any time in accordance with these Terms. If a Purchase Order is cancelled within five (5) business days from the date on which Buyer sent such Purchase Order, there shall be no cancellation charges associated with such cancellation. If a Purchase Order is cancelled after the 5th business day from the date on which Buyer sent such Purchase Order, Buyeragrees to pay a reasonable cancellation charge consistent with Seller’s quoted cancellation schedule, but only if Seller has communicated such cancellation schedule to Buyer in writing prior to the date of such cancellation. Such cancellation fee shall in no case include consequential costs or expenses of Seller, including but not limited to lost profit or overhead, and in no instance will such cancellation fee exceed the price of the Goods quoted in the cancelled Purchase Order.
7. INSPECTION/REJECTION.
a. All Goods delivered under any Purchase Order shall conform to the plans and specifications included in the Agreement. All Goods of Seller shall be subject to inspection and acceptance by Buyer or Buyer’s designated agent at the place of delivery or at Seller’s place of manufacture and Buyer or its designated agent shall have the right to reject such delivery in the instance that any Goods contained in such delivery do not conform to the Purchase Order, with such determination to be made in the sole discretion of Buyer or its designated agent. Seller shall be responsible for taking possession of such rejected Goods. Buyershall incur no charges, fees, or penalties associated with any deliveries that are rejected for nonconformance to the Agreement and Seller shall be solely responsible for all such charges, fees, or penalties, including but not limited to, costs for storage and return shipping of the rejected Goods. Seller agrees to indemnify, defend, and hold harmless Buyer and its respective officers, directors, employees, agents, subcontractors, successors and assigns from and against any and all claims, actions, suits, demands, damages, liabilities, obligations, and other losses, including reasonable attorneys’ fees and court costs arising therefrom or related thereto, claimed from or against Buyer and related to Goods or deliveries that are rejected for nonconformance with the Agreement including, but not limited to costs associated with Buyer’s inability to timely deliver such Goods to its customers due to such nonconformance. Buyer shall not be liable for Goods or work not accepted.
b. In addition to the inspection rights set forth above, Buyer or its designated agent shall have the right to inspect the production and manufacturing of the Goods upon providing reasonably advance notice of the same to Seller.
c. Goods to be delivered hereunder shall be new materials, not used, reconditioned, remanufactured, or of such age to impair usefulness or safety of the Goods.
8. CHANGE IN SPECIFICATIONS OR DELIVERY.
Buyer reserves the right at any time to make changes in drawings, specifications and delivery dates as to Goods covered by an Agreement. Any difference in price or time for performance resulting from such change shall be equitably adjusted and the Purchase Order schedule shall be modified accordingly upon written agreement of the Parties.
9. WARRANTY.
Seller warrants that all Goods delivered by Seller pursuant to any Agreement will be free from defects in materials and workmanship for a period of eighteen (18) months after the date of Buyer’s acceptance of the Goods, or twelve (12) months after installation, whichever occurs sooner, unless otherwise expressly agreed by Buyer in writing. All costs of dismantling, reinstallation and freight and the time and expense of Buyer’s personnel and representatives for site travel and diagnosis of defective Goods or Goods perceived as defective under this warranty shall be borne by Seller unless otherwise accepted in writing by Buyer. Seller assumes all other responsibility for any loss, damage, or injury to persons or property arising out of or connected with, or resulting from the use of Goods, either alone or in combination with other products/components. This Section 9 applies to any entity or person who may buy, acquire or use the Goods, including any entity or person who obtains the Goods from Buyer. Buyer agrees to provide such subsequent transferee conspicuous, written notice of the provisions of this Section 9. Seller agrees to defend, indemnify, release and hold harmless Buyer against any and all claims, demands, losses, judgments, fines, penalties, expenses and liabilities, including without limitation costs, fees and all damages from any claim, suit, action or proceeding, at law or in equity, arising as a result of injury or property damage caused by any Goods sold by Seller to Buyer.
10. LIMITATION ON LIABILITY.
SELLER AGREES THAT UNDER NO CIRCUMSTANCES MAY BUYER’S LIABILITY TO SELLER EXCEED THE AGREED PRICE FOR THE GOODS SET FORTH IN THE AGREEMENT. BUYERSHALL HAVE NO LIABILITY TO SELLER AND ITS SUPPLIERS FORINCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES. THE TERM “CONSEQUENTIAL DAMAGES” SHALL INCLUDE, BUT NOT BE LIMITED TO: LOSS OF ANTICIPATED PROFITS; BUSINESS INTERRUPTION; LOSS OF USE, REVENUE, REPUTATION, OR DATA; COSTS INCURRED, INCLUDING WITHOUT LIMITATION, FOR CAPITAL, LABOR, FUEL, OR POWER; AND LOSS OR DAMAGE TO PROPERTY OR EQUIPMENT. SELLER EXPRESSLY ACKNOWLEDGES AND AGREES THAT BUYER HAS ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND OTHER TERMS AND CONDITIONS SPECIFIED IN THIS AGREEMENT ALLOCATED CERTAIN RISK BETWEEN BUYER AND THE SELLER AS AN INTEGRAL COMPONENT OF THE BASIS FOR THE BARGAIN BETWEEN THE PARTIES.
11. NO AGENCY.
It is understood and agreed that Seller is a vendor of Buyer contracting independently with Buyer and is not an agent, employee or representative of Buyer. Seller shall make no representations to the contrary. Seller agrees Seller does not have authority to sign contracts, notes, obligations, to make purchases or acquire or dispose of any property for or on behalf of Buyer.
12. CONFIDENTIALITY.
The term "Confidential Information" means any and all confidential and proprietary information, data, lists, compilations, specifications, plans, files, documentation, reports, financial information pricing, drawings, specifications, data, goods, technical information, information on processes, customer lists, customer identities, and other tangible and intangible property provided to or obtained by the receiving party ("Recipient") by or from the disclosing party ("Disclosing Party"), including, without limitation, information pertaining to Disclosing Party's customers, products, methods of doing business, marketing, strategic and other business plans, and financial results and projections, whether provided orally, visually, in writing, or in any other medium regardless of whether such information is specifically marked or identified as confidential. Confidential Information also includes the fact that discussions or negotiations are taking (or have taken or are scheduled to take) place concerning a Potential Transaction, including the terms or status of a Potential Transaction. This Agreement does not apply to information that is (i) in the public domain through no fault of Recipient; (ii) is independently developed by Recipient; or (iii) information that Disclosing Party has otherwise approved in writing for disclosure by Recipient. Disclosing Party shall retain full ownership of the Confidential Information and all copies thereof. Upon either a request from the Disclosing Party or negotiations of the Potential Transaction ending, the Recipient will promptly deliver to the Disclosing Party original or copies of the Confidential Information. Recipient acknowledges and agrees that Disclosing Party's Confidential Information is confidential and proprietary property of Disclosing Party and constitutes a valuable trade secret of Disclosing Party. Nothing herein shall be construed as granting Recipient any right, title or interest in Disclosing Party's Confidential Information. Recipient agrees to hold Disclosing Party's Confidential Information in trust and to use all reasonable effort to maintain and protect confidentiality. Except as expressly provided above, Recipient, whether by act or omission, shall not copy, publish, disseminate, divulge, release, furnish or otherwise disclose Disclosing Party's Confidential Information. Recipient shall give Disclosing Party notice of any unauthorized use or disclosure of Disclosing Party's Confidential Information. This Agreement shall not be deemed to prohibit disclosures required by applicable law, regulation, court order or subpoena. The Parties agree this Section 11 is effective and in full force throughout the course of the Parties’ business relationship with the other Party and shall survive for a period of five (5) years after the most recent Purchase Order placed by Buyer to Seller
13. INDEMNIFICATION.
Seller shall defend, indemnify and hold Buyer, its parent, subsidiary and affiliate companies, successors and assigns, and each of their respective officers, directors and employees, liability or expense, including attorneys’ fees, arising from, in whole or in part, violations by the Seller of any applicable laws, rules and regulations, or any breach of any term of the Agreement. Seller shall be liable for the acts and omissions of its employees, agents, contractors and subcontractors and Seller agrees to defend, indemnify and hold Buyer, its officers, directors, and employees harmless from all liability or expense, including attorney's fees, arising from or out of the acts or omissions of Seller and its employees, agents, contractors, and subcontractors. Seller shall defend, indemnify, and hold harmless Buyer, its parent, subsidiary and affiliate companies, successors and assigns, and each of their respective officers, directors and employees, from and against any and all third party claims, liabilities, and expenses (including, without limitation, reasonable attorneys’ fees and costs), regardless of the form of action, arising out of or in connection with an allegation or claim that the Goods manufactured by Seller infringe, violate, or misappropriates a valid third party patent, copyright, or other proprietary right. The Parties agree the terms of this Section 13, together with any other indemnity provisions in these Terms, survive termination of the Parties’ Agreement.
14. FORCE MAJEURE.
Buyer shall not be liable for any act, omission, result or consequence, including but not limited to any delay in performance or non-performance due to acts of God; acts of Seller; war; weather; sabotage; civil disturbances or riots; the prior performance of any government order; any order bearing priority rating or order placed under any allocation program (mandatory or voluntary) established pursuant to law, local labor shortage; fire; flood or other casualty; acts of the government (including through regulation or requirements) or public enemy; epidemics, pandemics, or other public health emergencies; shortage or failure of power or transportation, breakdown of equipment; strikes, labor disputes or differences with workmen, regardless of whether or not Buyer is capable of settling any such labor problem; unforeseen circumstances or any events beyond Buyer’s reasonable control whether of similar or dissimilar nature than those above enumerated (each a “Force Majeure Event”). If Seller experiences a Force Majeure Event which delays its performance by more than ten (10) days, Buyer shall have the right to terminate any outstanding Purchase Orders that are affected by the Force Majeure Event without liability or penalty of any kind.
15. PROPERTY RIGHTS.
During the term of the Agreement, Buyer is authorized to use Seller’s trade name or any of Seller’s trademarks and licenses in connection with Buyer’s rights and duties under the Agreement and these Terms. Seller agrees that Seller is selling its Goods to Buyer generically and Buyer has the right to repackage such Goods and to add the Buyer logo and/or trademark to such packaging. Such repackaging shall not affect the warranty applicable to such Goods or affect either Party’s rights or responsibilities under the Agreement with respect to such Goods.
16. INSURANCE.
a. Seller, at its own cost and expense, as well as its subcontractors, shall procure and maintain worker’s compensation, comprehensive general liability, bodily injury, and property damage insurance in reasonable amounts, including Workers Compensation Insurance, General Liability Insurance, Automobile Liability Insurance, Excess/Umbrella Liability Insurance, Errors and Omissions Liability Insurance, and such additional insurance as may be required, including but not limited to ocean cargo marine, all risk builder’s risk, contractor’s equipment, insurance requirements pursuant to the U.S. Longshoreman’s and Harbor Workers’ Compensation Act, or insurance requirements pursuant to the Jones Act, and other such insurance as Buyer may require from time to time. Such insurance shall be written through a licensed carrier with a financial rating of no less than A – lawfully authorized to write insurance in the state in which Buyer issued the Purchase Order.
b. Insurance shall apply on a primary and non-contributory basis, with respect to any other insurance or self-insurance programs afforded to Buyer. The policy will be so endorsed if necessary. Policies must contain a severability of interest clause. Any deductibles or self-insured retentions carried by Seller are the sole responsibility of Seller and must be declared on certificates of insurance.
c. Buyer, its parent, affiliates, sister entities, officers, directors, employees, agents, subsidiaries, and assigns must be included as an additional insured under the General Liability, Automobile Liability and Excess/ Umbrella Liability policies utilizing the broadest commercial insurance form available and stated on the certificate of insurance provided to Buyer.
d. Buyer assumes no responsibility for loss or damage to Seller’s and/or subcontractor’s personal property while on Buyer’s premises.
17. WAIVER.
Failure of Buyer to enforce any right hereunder shall not waive any right of Buyer or obligation of Seller with respect to any other or future rights or obligations.
18. EXPORT/IMPORT.
Seller agrees that all applicable import and export control laws, regulations, orders and requirements, including but not limited to those of the United States of America, will apply to the Goods furnished in connection with the Purchase Order. In no event shall Seller use, transfer, release, import, or export Goods in violation of such applicable laws, regulations, orders or requirements. Seller is familiar with and shall fully comply with all applicable laws, regulations, rules and other requirements of Buyer’s jurisdiction and of any applicable state, foreign and local governmental body in connection with the sale, shipment, use, transfer and disposal of the Goods. If Seller imports or exports Goods in violation of any applicable law, regulation or rule, Seller shall be solely responsible for any fines or penalties imposed by competent authorities and shall indemnify and hold Buyer harmless for any fines, penalties, and costs (including legal fees) incurred by Buyer in connection with Seller’s violation. Seller warrants that all sales made hereunder are or will be made at not less than fair value under the United States Anti-Dumping Law (Title VII of the Tariff Act of 1930, as set forth in 19 U.S.C. 1671-1677n, as amended). Buyer is not and will not be a party to the importation of Goods or materials and all transactions between the Parties will be consummated subsequent to importation of any Goods or materials. Seller shall neither cause nor permit Buyer’s name to be shown as “Importer of Record” on any customs declaration.
19. POTENTIALLY HARMFUL MATERIALS.
Seller shall inform Buyer in writing in advance of any toxic or harmful materials used in the manufacture of Goods purchased under any Purchase Order and shall indemnify, hold harmless, and defend Buyer from any liability arising from such Goods. Seller shall provide material Safety Data Sheets to Buyer, as required by law.
20. TOOLS AND MATERIALS.
Buyer shall retain title to any designs, sketches, drawings, blueprints, patterns, dies, models, molds, tools, special appliances and materials (“Articles”) furnished or paid for by Buyer in connection with any Purchase Order. Articles shall be marked as property of Buyer and shall be properly insured, with losspayable to Buyer, and shall be replaced if lost or destroyed, all at Seller’s cost.
21. GOVERNMENT CONTRACTS.
If Goods are being shipped to Buyer to fulfill the requirements of a contract with or affecting any governmental jurisdiction, Seller agrees to accept and accommodate any additional or different terms imposed upon Buyer or Seller by such governmental jurisdiction.
22. DEFAULT AND REMEDIES.
a. Buyer, by written notice, may terminate this Order for default, in whole or in part, if Seller fails to comply with any of the terms of this Agreement, fails to make reasonable progress in its performance of the Purchase Order, or fails to provide adequate assurance of future performance. Seller shall have five (5) days to cure any failure/breach after receipt of written notice from Buyer, except for defaults involving delivery schedule of Goods. b. In the event of Seller's failure to deliver as and when specified, Buyer reserves the right to cancel this Agreement, or any part, without prejudice to Buyer’s other rights, and Seller agrees that Buyer may return part or all of any shipment made late or not in conformance with this Order. Seller shall, upon demand by Buyer, reimburse Buyer for any loss or expense sustained as a result of Seller's failure to perform.
23. SURVIVABILITY.
If the Agreement is terminated for any reason whatsoever, Seller agrees Seller will not be relieved of the obligations contained in these Terms under the following sections:
9. Warranty.
10. Limitation on Liability.
11. No Agency.
12. Confidentiality.
13. Indemnification.
15. Property Rights.
18. Export/Import.
24. Applicable Law; Venue; Compliance with Laws.
25. Disputes.
24. APPLICABLE LAW; VENUE; COMPLIANCE WITH LAWS.
Interpretation of these Terms and all transactions between the Parties shall be governed by and interpreted in accordance with the laws of the state of Missouri (without regard to conflict of lawsprovisions). The Parties hereby submit to the exclusive jurisdiction in the federal and state courts, in Jackson County, Missouri for the purposes of resolving any disputes arising under or otherwise regarding the Agreement. Seller shall comply with all federal, state, and local laws and regulations.
25. DISPUTES.
a. Any dispute, controversy or claim arising out of or relating to this Agreement, or default, termination, or invalidity hereof, shall be settled by a single arbitrator, selected by Buyer with assistance of Seller, administered by American Arbitration Association under its Commercial Arbitration Rules. The place of arbitration shall be Kansas City, Jackson County, Missouri. The language to be used in the arbitral proceedings shall be English. Judgment of the arbitrator shall be final and nonappealable and may be entered in any court having jurisdiction or application may be made to such court for a judicial acceptance of the award and an order of the enforcement. Each party shall bear its own expenses of the arbitration, but the fees and costs of the arbitrator shall be borne by arbitration. Until final resolution of any dispute hereunder, Seller shall diligently proceed with the performance of this Order as directed by the Buyer.
b. Any dispute regarding discovery, or the relevance or scope thereof, shall be determined by the arbitrator, whose determination shall be conclusive. All discoveries shall be completed within thirty (30) days following the appointment of the arbitrator.
c. No action at law or in equity may be commenced by Seller under or arising from this Order unless it is brought within six (6) months after the accrual of the cause of action upon which the claim is based, regardless of whether Seller knew or should have known of the accrual of any such cause of action.
d. Notwithstanding the foregoing, in the event of a breach or threatened breach by Seller affecting the Confidential Information of Buyer, Buyer may forego arbitration under this provision and seek immediate judicial and equitable remedies, including but not limited to, injunctive relief or specific performance.
26. NOTICE.
All notices, claims, requests and other communications hereunder which are required or may be given under this Agreement shall be in writing and shall be deemed to have been duly given and received on the date sent if hand-delivered or sent by delivery service, telegram or facsimile transmission to the other Party at the address set forth on the Order. Notices, claims, requests, and other communications delivered by mail shall be deemed to have been received three (3) business days after deposit in the US mail postage prepaid.
27. ASSIGNMENT.
Neither this Agreement nor any of the rights, interest or obligations hereunder shall be assigned by either Party without the prior written consent of the other Party provided, however, that a Party may (i) assign this Agreement to any entity that acquires all or substantially all of such Party’s assets or its business, or (ii) upon written notice to the other Party, assign this Agreement to any entity that is owned by such Party.
28. ATTORNEY’S FEES.
Buyer shall have the right to recover from Seller its reasonable costs, expenses, and attorneys’ fees incurred in enforcing the Agreement or resulting from Seller’s breach of Agreement.
29. HEADINGS.
The paragraph headings and numbers are for convenience only and shall not be deemed to affect in any way the language of the provisions of the Agreement.
30. INTERPRETATION.
Where the context of the Agreement so requires, the singular shall include the plural and vice versa.
31. ORDER OR PRECEDENCE.
In the event of any conflict between this Agreement and any other terms and conditions of any other document, this Agreement shall govern. In the event of conflict between the terms and conditions found in the Purchase Order and these Terms, the Purchase Order shall govern.
