PURCHASE ORDER TERMS & CONDITIONS“BUYER” MEANS MAR-BAL, INC. “SELLER” MEANS THE PARTY SELLING THE PRODUCTS TO BUYER.BY SELLING PRODUCTS TO BUYER, SELLER CONFIRMS THAT THE FOLLOWING TERMS AND CONDITIONS(“the Std Terms”) APPLY TO BUYER’S PURCHASE. ANY MODIFICATIONS MUST BE IN WRITING ANDSIGNED BY BUYER. THE TERM “PRODUCTS” ALSO INCLUDES THE TERM SERVICES, WHERE APPLICABLE.
1. TERMS AND CONDITIONS OF PURCHASE
a. Any Products Buyer purchases from Seller by paper, electronic means, phone, pager or any other formof transmission, are purchased subject to the following: (i) if Seller already has a fully signed separatepurchase agreement currently in effect with Buyer, then the terms of that agreement, together with anyterms and conditions of Buyer’s applicable purchase order with the effect provided in that separateagreement, constitute the complete agreement; and (ii) if Seller does not already have a fully signedseparate purchase agreement with Buyer, then the terms and conditions of Buyer’s applicable purchaseorder constitute the complete agreement. The complete agreement as defined in this Section 1 isreferred to as the “Purchase Agreement.”
b. Seller may not assign or subcontract its obligations under the Purchase Agreement without priorwritten consent of Buyer, and if Seller does so, the assignment or subcontract will not be enforceableagainst Buyer.
c. The Purchase Agreement is governed by, and will be interpreted under the substantive laws of theState of Ohio.
2. PRICING; PAYMENT
a. Unless otherwise provided in writing, prices are (i) stated in U.S. dollars, and (ii) not subject toincrease for the duration of the Purchase Agreement. No extra charges of any kind will be allowedwithout Buyer’s specific written agreement.
b. Unless prohibited by law, Seller will separately indicate on its invoices any taxes or othergovernmental charges imposed on the sale or delivery of Products.
c. Unless otherwise provided in the Purchase Agreement, payment will be net 60 days after the later of(i) the date of Buyer’s receipt of a proper invoice, or (ii) the date of Buyer’s receipt of product at itslocation as provided in the purchase order, as applicable.You created this PDF from an application that is not licensed to print to novaPDF printer (http://www.novapdf.com)
d. Seller warrants that it is selling Buyer at the lowest prices and upon the most favorable terms(including, without limitation, volume, quality and/or payment terms) that it offers any buyer forProducts of the same of similar quality as that provided for in the Purchase Agreement. If, during theterm of the Purchase Agreement, Seller makes an offer to sell any similar Products to a third party at alower price or upon one or more terms that are more favorable than the price or terms then applicableunder the Purchase Agreement, an equivalent reduction or modification of Buyer’s terms under thePurchase Agreement will automatically apply as of the earliest date Seller sold at a lower price or onmore favorable terms.
e. Buyer will be responsible for all sales, use, and similar taxes (excluding taxes based on or measured bythe net income, commercial activity, net worth or gross receipts of Seller) imposed as a result of thesales of Products. With notice to Seller, Buyer may pay such taxes directly to the taxing authority whereallowed by law. Seller shall remit all taxes paid to Seller by Buyer to the appropriate taxing authority.Upon Buyer’s request, Seller will provide written evidence that Seller is properly licensed to collect thetaxes paid by Buyer and that Seller has remitted taxes to the appropriate taxing authority.
3. TRANSPORTATION; DELIVERY
a. Delivery dates are firm and TIME IS OF THE ESSENCE. Seller will use all commercially reasonableefforts to meet the Delivery Request Date and will promptly notify Buyer in writing if Seller anticipatesdifficulty in meeting a Delivery Request Date. Buyer is not obligated to accept deliveries that are notmade on the Delivery Request Date. If Seller fails to meet a Delivery Request Date, Buyer may procurereplacement Products without obligation to purchase the products which are late. Seller will beresponsible for all of Buyer’s costs incurred as a result of early or late deliveries and procurement ofreplacement Products.
b. Unless otherwise provided in writing, delivery will occur and title and risk of loss will transfer, whenthe product arrives at Buyer’s designated location.4. INSPECTION
Buyer may inspect and test all Products and materials, equipment and facilities used by Seller inproducing Products for Buyer. Seller will maintain an inspection and testing system for its Products soldthat is acceptable to Buyer and will keep records of all inspection and testing data and, with respect toProducts, samples of each lot shipped, for two (2) years after delivery. Unless otherwise agreed by BuyerYou created this PDF from an application that is not licensed to print to novaPDF printer (http://www.novapdf.com)in writing, Seller will deliver to Buyer a certificate of analysis as to specifications required by Buyer withrespect to each product lot shipped.
a. Seller warrants that all Products will be: (i) free of any claims by third parties; (ii) in strict accordancewith the specifications, samples, drawing or other descriptions approved by Buyer; (iii) free fromdefects; and (iv) to the extent that Buyer relies on Seller to specify the Products, fit for their intendedpurpose.
b. Seller further warrants that all services will be performed in accordance with the standards of careand diligence normally practiced by persons performing similar services and in the best workmanlikemanner.
c. With each Product delivered Seller will deliver to Buyer a certificate of analysis confirming theconformance to specifications approved by Buyer with respect to each product lot shipped.d. The above warranties will be in effect for a period of eighteen (18) months after the date of Buyer’sreceipt of Products by Buyer. If any Products fail to conform to the above warranties Seller, at Buyer’soption, will: (i) with respect to Products, replace or repair the nonconforming Products; (ii) with respectto services, re-perform all services necessary to correct any such nonconformity; or (iii) refund thepurchase price of the nonconforming Products or services, plus any related costs incurred by Buyer.
6. QUANTITY TERMINATION; ORDER CHANGES
a. Buyer may, by written notice to Seller, terminate its purchase of any quantity of Products (i) forconvenience, (ii) if Seller fails to complete or deliver any portion of Product when required, or (iii) ifSeller is in breach of any material term of the Purchase Agreement in accordance with Section 16.
b. If termination for convenience, Buyer will pay Seller termination charges equal to the cost ofmaterials and labor incurred (and not otherwise mitigated) on ordered Products prior to the date ofBuyer’s termination notice; provided Seller takes all commercially reasonable steps to mitigate its costs.Seller must notify Buyer of the actual termination charges within ten (10) days after termination.
c. If termination is due to breach of any material term of the Purchase Agreement (including deliverytimes), no termination charges will apply and Buyer may procure substitute Products or Services andSeller will be liable to Buyer for any excess costs incurred by Buyer.
d. Prior to shipment or completion, Buyer may request changes with respect to the Products to beprovided, including, changes in shipping, packing, time or place of delivery and changes in orderedquantity. Seller will promptly notify Buyer of any resulting increase or decrease in cost and Buyer andSeller must agree on any price adjustment before implementing any change. All changes andadjustments must be confirmed and mutually agreed to in writing by both parties or are notenforceable.
7. COMPLIANCE WITH LAWS
a. Seller certifies and covenants that: (i) Seller will comply with all applicable laws, rules, regulations,orders or other pronouncement of any government or quasi-governmental authority in performing itsobligations under the Purchase Agreement, including environmental, health and safety, immigrationcustoms and employment.
b. From time to time, at Buyer’s request, Seller shall provide certificates to Buyer relating to compliancewith any applicable legal requirements, including ROHS, REACH, NAFTA, county of origin and otherreasonable requests of Buyer.
8. CONFIDENTIAL INFORMATION; OWNERSHIP OF DOCUMENTS & MATERIALS
a. Seller will treat as confidential and not disclose any information received from Buyer (“Buyer Info”) inconnection with the Purchase Agreement other than to its employees or agents with a need to know inorder to perform the Purchase Agreement or other disclosure authorized by Buyer in writing. Seller willuse Buyer Info only as necessary to perform its obligations under the Purchase Agreement. Upontermination of Purchase Agreement, all Buyer Info will be returned to Buyer, or at Buyer’s option,destroyed by Seller. Seller will not make any announcement or release any information concerning thePurchase Agreement to any other person or entity without Buyer’s prior written consent, except asrequired by law.
b. All drawing, models, specifications and other documents and materials prepared by Seller inconnection with the Products supplied under the Purchase Agreement are deemed to be Buyer Info andwill become Buyer’s property and be delivered to Buyer, as part of the consideration of the PurchaseAgreement, upon (i) completion, abandonment or postponement, or delivery of the Product or (ii)termination of the Purchase Agreement. Seller hereby assigns any and all rights that it has in and to allsuch documents, materials and Buyer Info to Buyer.
9. INTELLECTUAL PROPERTY INFRINGEMENT
Seller represents and warrants that the sale or use of the Products provided to Buyer will not infringe orcontribute to the infringement of any patents, trademarks, or copyrights anywhere in the world. If anyproduct, service, or part thereof is held to constitute an infringement, Seller, at its expense, will obtainfor Buyer a license to use the item or service, or replace or modify the same, in a manner satisfactory toBuyer, so as to avoid the infringement. Seller will not assert any of its patent or other intellectualproperty rights against Buyer or Buyer’s affiliates or customers worldwide in connections with any use ofProducts provided under the Purchase Agreement.
Seller will not change the manufacturing process, raw materials or proportions of raw materials used inProducts unless Seller notifies Buyer in writing of the change at least one hundred eighty (180) daysbefore its implementation and Buyer agrees to the change in writing. Seller will be liable for all lossesand damages that Buyer may suffer if Seller does not comply with the requirements of the precedingsentence. At Buyer’s request, Seller will provide free samples of Product with the proposed change totest in Buyer’s manufacturing.
11. CUSTOMS AND TRADE
a. Unless otherwise agreed by Buyer in writing, Buyer will not be a party to the importation of Products.All purchases under the Purchase Agreement will be consummated subsequent to importation, priceswill be inclusive of all duties and other costs of customs clearance. Seller will not take any action thatwould cause Buyer to be shown as “importer of record” on any customs declaration. In any case whereBuyer agrees to be the importer of record, Seller will provide all information needed to affect customsentry into each country into which the Products are to be imported.
b. Seller will provide such documentation and other assistance as Buyer may request to allow Buyer toclaim drawback of duties and taxes on Products or articles manufactured from Products provided underthe Purchase Agreement.
c. Seller will accurately indicate the country of origin of the Products on the customs invoice and otherapplicable documentation. Seller will provide certificates of origin relating to such Products within themeaning of the rules of origin of the NAFTA preferential duty provisions and execute such otherdocuments as may be necessary for Buyer to claim duty preference under any applicable programs.
12. SERVICES/LIENS; SITE RULES; INSURANCE
a. Seller will obtain from all of its subcontractors waivers and releases of all liens which may be imposedby them against the Products or Buyer’s premises or the improvements thereon, and Seller will defend,indemnify, and hold harmless Buyer with respect thereto.
b. Prior to performing any services on Buyer’s premises, Seller will obtain, and thereafter maintain at alltimes, the following minimum insurance coverages: (i) Worker’s Compensation insurance as requiredunder the applicable laws of the jurisdiction in which the services are to be performed; (ii) Employers’Liability insurance as required under the applicable laws of the jurisdiction in which the services are tobe performed, with minimum coverage of $1,000,000; (iii) Comprehensive General Liability insurancewith minimum coverage of $2,000,000 for bodily injury and property damages; (iv) Automobileinsurance for owned or hired vehicles covering bodily injury, death and property damage, with minimumcoverage of $1,000,000 per occurrence and in the aggregate and (v) Additional Umbrella Coverage withminimum coverage of $5,000,000. All required insurance must be with companies licensed in thejurisdiction in which the services are performed and acceptable to Buyer.
c. Seller in rendering any services on Buyer’s premises, is an independent contractor and that neitherSeller nor any principal, partner, agent or employee of Seller is the legal representative of Buyer and hasno right or authority to assume or create, by action, in writing or otherwise, any obligation of any kind,express or implied, in the name of or on behalf of Buyer. Neither Seller nor any principal, agent oremployee of Seller is entitled to or be eligible to participate in any benefit program extended by Buyerto its employees.
d. All Sellers’ employees provided services under the Purchase Agreement must be authorized to workin the jurisdiction where the services are performed.
Seller will fully defend, indemnify, hold harmless and reimburse Buyer, its officers, directors,shareholders, employees, agents, customers and assigns from and against all claims, suits, action,proceedings, damages, losses and expenses, including attorneys’ fees, arising out of, related to, orresulting from: (i) any breach of any representation, warranty, certification, covenant or agreementmade by Seller in the Purchase Agreement; (ii) any negligence or willful misconduct of Seller, or itsagents or subcontractors in connection with performance under the Purchase Agreement; (iii) anylitigation, proceeding or claim by any third party relating to the obligations of Seller under the PurchaseAgreement; and (iv) Seller’s use, control, ownership, or operation of its business and facilities, except tothe extent caused by the negligence of Buyer. Seller agrees to include this clause in any subcontractsissued hereunder.
14. BUYER’S PROPERTY
Unless Buyer otherwise agrees in writing, all tools, equipment or other materials furnished to Seller byBuyer are the personal property of Buyer. Seller will adequately identify Buyer’s property and safelystore it separate and apart from Seller’s property. Seller will not substitute any property for Buyer’sproperty and will use such property only for fulfilling its obligations under the Purchase Agreement.While in Seller’s custody or control, Buyer’s property will be held at Seller’s risk and kept fully insured bySeller.
15. FORCE MAJEURE
a. Any non-performance or delay in performance of any obligation of Seller or Buyer under the PurchaseAgreement will be excused to the extent such failure or non-performance is caused by “Force Majeure.”“Force Majeure” means any cause preventing performance of an obligation under the PurchaseAgreement which is beyond the reasonable control of the Seller or Buyer, and which, by the exercise ofdue diligence, could not be overcome, including without limitation, fire, food, sabotage, shipwreck,embargo, explosion, strike or other labor trouble, accident, riot, acts of a government authority, andacts of God. In no event shall Seller’s ability to sell Products at a better price or Seller’s economichardship in buying raw materials necessary to manufacture Products at a commercially reasonable priceconstitute Force Majeure.
b. If Buyer or Seller is affected by Force Majeure, it will (i) promptly provide notice to the other party,explaining the full particulars and the expected duration of the Force Majeure and (ii) use itscommercially reasonable efforts to remedy the interruption or delay if it is reasonably capable of beingremedied. If a Force Majeure event, deliveries or acceptance of deliveries of Products which have beensuspended will not be required to be made up on the resumption of performance. To the extent nototherwise permitted under the Purchase Agreement, Buyer will have the right to purchase Products andservices from other sources during the period of Force Majeure. If a Force Majeure extends for morethan sixty (60) days, the Purchase Agreement may be terminated upon written notice by the party notdeclaring Force Majeure without any liability on its part.
c. If a Force Majeure compels Seller to allocate deliveries of Products, Seller will make such allocation ina manner that ensures Buyer at least the same proportion of the Seller’s total output as was purchasedby Buyer prior to the Force Majeure. Seller will use commercially reasonable efforts to source Productsor other items, at Seller’s expense, from its own or its affiliates’ global operations or the market in orderto meet Buyer’s required delivery dates.
Buyer or Seller may terminate the Purchase Agreement upon thirty (30) days’ prior written notice if theother party breaches any material term thereof or files for bankruptcy; provided, however that duringsuch notice period, the party in default may cure its default and thereby abate the termination. In theevent Seller has not complied in any respect to Sections 7, 8 or 9 above, Buyer shall have the right toimmediately terminate the Purchase Agreement.
17. ACCESS AND AUDIT
In Order to assess Seller’s work quality and compliance with the Purchase Agreement, Seller will permitBuyer reasonable access to (i) all locations where work is performed in connection with the Productsprovided for in the Purchase Agreement, and (ii) Seller’s books and records relating to the PurchaseAgreement.
The following definitions apply to these Std Terms: (i) any reference to Section followed by a numbermeans a section of the Std Terms, (ii) including, includes and similar terms means “including but notlimited to” and does not limit references to examples listed, (iii) singular includes plural and vice-versa,(iv) one gender includes all genders, (v) writing means letter, purchase order, memorandum, text, emailor similar verifiable communication.