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© Copyright Duraco 2019. All purchase orders are subject to Our Purchase Order Terms and Conditions, which are subject to change without notice.
1. Definitions. "Buyer" means Duraco and includes its designated representatives and its successors and assigns. "Seller" means the person, firm, corporation or other business entity indicated on the face of this order.
2. Inconsistent Terms. In the event of any inconsistency or conflict among the terms and conditions of this order, the inconsistency or conflict shall be resolved by giving the contract documents the following order of precedence: (1) the terms and conditions on the face of his order, (2) any terms and conditions expressly incorporated by reference on the face of this order, (3) the preprinted terms and conditions on the back of this order, and (4) any other terms and conditions that may be a part of the contract. Seller's written acceptance of this order or commencement of the work or services under this order shall be deemed acceptance of these terms and conditions. Any forms used by Seller to acknowledge this order shall be for administrative purposes only and shall have no force or effect on this order. No addition to or modification of the terms and conditions herein shall be binding on Buyer unless specifically agreed to by Buyer in writing.
3. Changes. Buyer may at any time, by written notice to Seller, make changes in, additions to or deletions from the scope hereof. If any such change increases or decreases the time required for Seller's performance hereunder, an equitable adjustment shall be made in the schedule for such performance if one is attached hereto or included on the face hereof. If any such change increases or decreases Seller's cost of performance, then there shall be an equitable adjustment in the price. Seller's right to an equitable adjustment in the price or schedule, or both, as a result of any change made by Buyer pursuant to this term 3 is expressly conditioned on Seller providing Buyer written notice of a request for such adjustment within l0 days after Seller receives Buyer's notice of change. Seller shall proceed with its performance, as changed, pending agreement upon an equitable adjustment in the price or schedule, or both, and shall not halt or delay performance because of any failure to so agree.
4. Price; Title. All prices are for goods delivered F.O.B. Buyer's facility set forth on the face of this order. The prices represent the full and complete compensation for all profit, labor, supervision, materials, overhead and other costs associated with the manufacture, sale and delivery of the goods, including all excise, value added, privilege or similar taxes but exclusive of any sales and use tax that may be applicable on the sale of the goods and except as specifically stated otherwise on the face of this order. Except as provided in term 11, title and risk of loss for such goods shall pass to Buyer upon receipt thereof at Buyer's facility set forth on the face of this order.
5. Quantities. Buyer shall not be required to pay for goods delivered in excess of the quantities specified on this order.
6. Time of Essence. Time is of the essence with respect to this order. All goods shall be delivered and services performed within the time or times specified in this order, except as excused as provided in term 18. Seller's failure to perform within the specified times shall be deemed a material breach of this order. Notwithstanding the foregoing, if Seller fails to meet Buyer's delivery schedule as stated in this order and such failure is not excused as provided in term 18, and Buyer determines, in its sole discretion, that it requires a more expeditious form of transportation than stated on this order, Seller shall deliver the goods as expeditiously as possible at Seller's expense. Buyer may change the rate of scheduled shipments or direct temporary suspension of scheduled shipments and Seller shall not be entitled to an equitable adjustment to the price due to such changes.
7. Right to Inspect. Payment before inspection of goods shall not constitute acceptance. Buyer may, but need not, inspect the goods covered by this order at all reasonable times and places during their manufacture and before and after delivery. All goods shall be subject to final inspection by Buyer and acceptance upon receipt at Buyer's facility set forth on the face of this order.
8. Packing. Seller shall, at no additional cost to Buyer, package all shipments of goods hereunder in accordance with the requirements specified in this order or, if no such requirements are specified, in accordance with standard commercial practices. Each shipment shall contain a packing list indicating purchase order number, item numbers and other identifying information corresponding to that set out on the face of this order.
9. Marking. Prior to shipment, each package containing goods to be delivered hereunder shall be clearly marked with Buyer's purchase order number, shipping symbols, serial numbers, weights, measurements and other means of identification as may be directed by Buyer or reasonably necessary to facilitate due delivery.
10. Invoices and Payment. Invoices may be submitted upon delivery, and shall be payable 30 days after Buyer's receipt thereof. If freight charges are to be paid by Buyer, they shall be shown as a separate item on the invoice and the paid freight bill or receipt must be attached. Delay in receiving accurate invoices will be cause for withholding payment without loss of cash discount privilege. Discount periods will begin when invoices are received at Buyer's address indicated on the face hereof. Payment under this order shall not constitute acceptance of any defective goods. If Buyer disputes any portion of an invoice, Buyer shall be entitled to pay the undisputed portion only without incurring any liability to Seller for nonpayment. If Seller breaches any portion of this order, or if any person or entity asserts a claim or lien against Buyer's property or facilities arising out of Seller's performance hereunder, Buyer shall have the right to retain out of any payments due or to become due to Seller an amount sufficient to protect Buyer completely from all claims, losses, damages and expenses (including reasonable attorneys' fees), until the breach has been cured or the claim or lien has been satisfied, terminated, released or otherwise removed to Buyer's satisfaction. Buyer's right to withhold monies pursuant to this term shall be in addition to other rights and remedies available to Buyer under this order, at law or in equity.
11. Title and Special Interests. If full or partial payment is made to Seller prior to the delivery of all goods or the performance of all services hereunder, Seller shall segregate goods for delivery to Buyer (or components thereof) from other goods it may maintain in its inventories and shall identify such goods as being dedicated to the performance of this order, such segregation and identification to be sufficient to provide and protect Buyer's special interest in such goods. In addition, title to all such goods shall pass to Buyer, and Seller shall be deemed a bailee of all goods remaining in its possession; in no event, however, shall the risk of loss pass to Buyer until the goods are delivered to the destination specified herein. Seller agrees to maintain property insurance coverage in types and amount satisfactory to Buyer for all such goods, such insurance to name Buyer as loss payee as its interest may appear.
12. Compliance with Laws, Regulations and Codes. Seller warrants that all goods furnished hereunder will comply with, and be manufactured, priced, sold and labeled in compliance with, all applicable U.S. and foreign federal, state and local laws, codes, rules, regulations, orders and ordinances relating to the manufacture, labeling, transportation, importation, exportation, licensing, approval or certification of the goods and services, including, without limitation, environmental protection, energy and labor laws and regulations and applicable industry codes and standards. Without limiting the generality of the above, this order may be subject to the equal employment opportunity and affirmative action provisions of Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 793, and the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended, 38 U.S.C. 4212. To the extent required by law, this order incorporates by reference the provisions contained in the regulations of the Office of Federal Contract Compliance Programs in the "Equal Employment Opportunity" clause, 41 CFR 60-1.4(a)(1)-(7), the "Affirmative Action for Disabled Workers" clause, 41 CFR 60-741.4(a)-(f), and the "Affirmative Action for Disabled Veterans and Veterans of the Vietnam Era" clause, 41 CFR 250.4(a)-(m). These clauses, if applicable, are to be applied in conformity with Seller's obligations under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e. In addition, and without limiting the above requirements, all goods furnished hereunder and services furnished in connection herewith shall conform to the requirements of the Occupational Safety and Health Act of 1970, the Construction Safety Act of 1969, all regulations under such acts, and all other applicable U.S. and foreign federal, state and local laws, regulations, and standards relating to safety and health.
13. Disclosure of Ingredients; Warnings. If requested by Buyer, Seller shall promptly furnish to Buyer, in the form and with such detail as Buyer may direct, (a) a list of all ingredients and materials contained in the goods and the amount of such ingredients and materials, and (b) information regarding any changes in or additions to such ingredients and materials. Prior to and with each shipment of goods, Seller shall provide Buyer sufficient notice and warning in writing (including, but not limited to, appropriate labels on the goods, containers and packing) of any hazardous material that is an ingredient in the goods or a part of the goods, together with special handling instructions as may be necessary to advise carriers, Buyer and their respective employees of the proper handling, transportation, processing, use or disposal of the goods, containers and packing delivered to Buyer.
14. Tools and Materials; Safety Requirements. In the event that services will be performed on Buyer's premises, Seller shall be responsible for and shall bear the risk of loss of its materials, tools and equipment while on Buyer's premises, unless such loss or damage results solely from the gross negligence or willful misconduct of Buyer, its employees or agents. Seller shall require its subcontractors and agents engaged in the performance of the services to waive all liability against Buyer for lost or damaged materials, tools or equipment and shall indemnify Buyer against claims, liabilities or costs in connection with lost or damaged materials, equipment or tools belonging to Seller's subcontractors or agents; provided, however, nothing herein shall require Seller to indemnify Buyer against claims, liabilities or costs demonstrated by Seller to have resulted solely from Buyer's negligence or willful misconduct. Seller is responsible for keeping all areas where the services are to be performed clean and orderly to Buyer's satisfaction. Any costs incurred by Buyer in cleaning Seller's mess or removing tools or debris shall be deducted from any amounts due Seller hereunder. Buyer shall provide reasonable access to Buyer's premises for Seller's employees, provided that any person for whom access is approved by Buyer shall comply with Buyer's security, safety and environmental requirements which may be communicated by Buyer to Seller.
15. Warranties. Seller warrants that each item of the goods supplied hereunder shall (a) be new and shall conform strictly to the description and specifications, if any, contained or referenced herein and (b) be free from defects in design (except to the extent the design is provided or specified by Buyer), workmanship and materials. Seller also warrants that any services provided hereunder shall (a) be performed in strict accordance with any specifications contained or referenced herein and (b) reflect the level of skill, knowledge and judgment required or reasonably expected of suppliers performing comparable services. If Buyer discovers that any item of the goods supplied or services performed by Seller hereunder fails to conform to the above warranties, then Seller shall, at Buyer's option and without further compensation to Seller, promptly repair, replace or modify any item of the goods or correct or re-perform any service so that it conforms to the above warranties, provided that, unless otherwise specified on the face of this order, Buyer shall give Seller written notice of the nonconformity within 60 days after (i) Buyer discovers or receives notice of the nonconformity or (ii) the nonconforming service is completed by Seller, as applicable. Seller shall provide all labor, engineering, supervision, equipment, tools and materials necessary to effect the remedy and shall bear all expenses in connection therewith, including transportation costs. Seller shall perform its remedial obligations hereunder in a timely manner consistent with Buyer's reasonable requirements. If Seller is unable to remedy such nonconformity during a time period consistent with Buyer's reasonable requirements, Buyer may undertake to remedy the nonconformity and in such case Seller shall reimburse Buyer for any reasonable costs thereby incurred.
16. Indemnity. To the fullest extent permitted by law, Seller shall indemnify and hold harmless Buyer and Buyer's directors, officers, agents and employees from and against all claims, losses, liabilities, damages and expenses (including reasonable attorneys' fees), including but not limited to personal injury to or death of persons (including but not limited to Buyer's employees) and damage to Buyer's property or facilities or the property of any other person or entity, in any manner arising out of, caused by or connected with this order or any of the goods supplied or services performed hereunder. Nothing herein shall be construed as making Seller liable for any injuries, deaths or damages caused solely by the negligence of Buyer or its agents or employees. If requested by Buyer, Seller shall undertake the defense of Buyer and its directors, officers, agents and employees in connection with any claim or action for which they are entitled to indemnity under this paragraph.
17. Insurance. Seller shall maintain adequate liability, employer's liability and workers' compensation insurance to protect Buyer and its agents, employees and contractors with respect to the indemnity contained in term 16 and any claims under workers' compensation, safety and health and similar laws and regulations. If requested by Buyer, Seller shall furnish evidence of such insurance in form and substance satisfactory to Buyer.
18. Force Majeure. Seller shall not be deemed in breach of this order to the extent any delay Seller's performance hereunder is due to circumstances beyond the reasonable control and without the fault or negligence of Seller provided Seller shall give Buyer written notice of any delay within five days of the occurrence of events or circumstances causing the delay. During the period of such delay or failure to perform by Seller, Buyer, at its option, may purchase the goods form other sources and reduce the quantity ordered from Seller by such amount without liability to Seller, or have Seller provide the goods from other sources in quantities and at times requested by Buyer and at the price set forth herein. Seller shall allocate available supplies of its product equitably among its customers, with priority given to customers whose orders predate any circumstances that would excuse full and timely performance under this term 18.
19. Termination for Convenience. Buyer may terminate this order at any time, in whole or in part, by providing written notice of termination to Seller, such termination to be effective as specified in the notice but not earlier than two days after the notice is received by Seller. Buyer shall be entitled to terminate without fee, charge or liability, except for conforming deliveries made prior to the effective date of termination. Upon termination, Seller shall reimburse Buyer for any payments made prior to termination respecting the terminated item(s) of material, equipment or service. In no event shall Buyer be liable for any termination charges or for any lost profits or unabsorbed overheads on account of such termination. All warranties, indemnities and confidentiality rights and obligations provided in this order shall survive the termination hereof.
20. Cancellation for Breach. This order may be canceled by Buyer upon Seller's breach or repudiation of the order without regard to materiality of such breach or repudiation, provided such breach shall not be cured, or such repudiation is not retracted within five days after Buyer provides written notice thereof to Seller.
21. Bankruptcy Subject to applicable bankruptcy law, in the event of any proceeding by or against Seller in bankruptcy, reorganization or insolvency or for the appointment of a receiver or any assignment for the benefit of creditors, Buyer may terminate this order without further liability except for conforming deliveries previously made.
22. Trademarks, Copyrights and Patents. Seller shall respect all trademark, copyright and patent rights of Buyer and shall not make, use or sell any material or goods reflecting such rights for any purpose other than fulfillment of this order without the express permission of Buyer. Seller shall not sell or distribute or cause to be sold or distributed to anyone other than Buyer, either directly or indirectly, any goods which display or incorporate any of Buyer's trademarks, copyrighted material or patents. Seller shall, at its expense, defend any suit or proceeding brought against Buyer based on an allegation that any goods or services, or any part thereof furnished hereunder, or use thereof for their intended purpose, constitute an infringement of any patent, trademark or copyright or violation of any trade secret. Seller shall (a) pay all damages and costs (including reasonable attorneys' fees) awarded in any suit or proceeding against Buyer and (b) indemnify Buyer against any costs incurred by Buyer in connection with any suit or proceeding and in providing information and assistance to Seller for the defense of the suit or proceeding. If the goods or services, or any part thereof, as a result of any suit or proceeding are held to constitute infringement of any patent, trademark, or copyright or violation of any trade secret and their use by Buyer is enjoined, Seller shall, at no cost to Buyer, procure for Buyer the right to continue using the goods or services, or any part thereof. To the extent this order is issued for the creation of copyrightable works, the works shall be considered "works made for hire." To the extent the goods sold hereunder do not qualify as "works made for hire," Seller hereby assigns to Buyer all right, title and interest in all copyrights and other rights therein.
23. Buyer's Property and Seller's Technical Information. All drawings, plates, cylinders, electrotypes, tooling, molds and similar items made in connection with this order and paid for by Buyer shall be Buyer's property, shall not be used by or for the benefit of any third party and shall be returned to Buyer on request. Seller shall not copy, reproduce, or sell any of Buyer's Property and shall not make any goods using Buyer's Property except as authorized by this Order. Seller shall not make any claim against Buyer (other than a claim for patent infringement) with respect to any technical information Seller may have disclosed to Buyer in connection with the goods or services provided hereunder.
24. Customs and Export Requirements. Credits or benefits resulting from or arising from this order, including trade credits, export credits or the refund of duties, taxes or fees, shall belong to Buyer. Seller shall provide all information necessary to permit Buyer to receive such credits or benefits, and to permit Buyer to fulfill its customs-related obligations, origin marking or labeling requirements and local content origin requirements, if any. Export licenses or authorizations necessary for the export of the goods sold hereunder shall be the responsibility of Seller unless otherwise indicated on the face of this order, in which event Seller shall provide such information as may be necessary to enable Buyer to obtain such licenses or authorization(s). Seller shall undertake such arrangements as necessary for the goods to be covered by any duty deferral or free trade zone programs of the country of import.
25. Governing Law. This order shall be governed by the laws of the State of Illinois, U.S.A., notwithstanding any choice of law provision that might apply to the laws of another jurisdiction. Any claim or cause of action brought by Seller against Buyer relating to or arising out of this order or the goods or services provided hereunder shall be brought only in the federal or state courts located in State of Illinois. [Disclaim UN convention.]
26. Remedies. The rights and remedies reserved to Buyer shall be cumulative with, and in addition to, all other remedies in this order, at law or in equity. Where no specific remedy for breach of contract is specified, Buyer shall be entitled to pursue all available remedies in this order, at law or in equity.
27. Miscellaneous. This order and the terms and conditions incorporated by reference or otherwise made a part hereof constitute the entire agreement of the parties and supersede any prior or contemporaneous agreements or understandings. Seller is an independent contractor for all purposes hereof. This order is a contract for the sale of goods and/or performance of services, and the relationship between the parties is that of buyer and seller, and is not intended to be one of hiring under the provisions of any workers' compensation or other laws and shall not be so construed. Nothing herein shall be deemed to constitute a partnership or joint venture between the parties. Seller shall not release any information relative to this order for publication, advertising or any other purpose without Buyer's prior written consent. Seller shall not assign or subcontract any right or obligation in this order without Buyer's prior written consent. Failure by Buyer in any instance to insist upon observance or performance by Seller of any of the terms, conditions or provisions of this order shall not be deemed a waiver of any such terms, conditions or provisions. No waiver shall be binding upon Buyer unless in writing and signed by Buyer and any such waiver shall be limited to the particular instance referred to. Payment of any sum to Seller by Buyer with knowledge of any breach shall not be deemed to be a waiver of such breach or any other breach. The remainder of this order will not be voided by the invalidity of one or more of its provisions. The obligations of Seller in this order shall survive acceptance of the goods and payment therefore by Buyer.
Duraco Terms and Conditions/V3/09.16.2009