Terms and Conditions of Purchase
Terms and Conditions of Purchase
. DEFINITIONS: “Supplies” means the goods, works, materials or Services furnished hereunder to Buyer.
“Agreement” shall mean these Terms and Conditions together with the Order pursuant to which Supplies are being provided and all documents specifically referenced herein or in such Order.
“Buyer” shall mean Advanced Composites, Inc.
“Laws” means all applicable federal, state and local laws, regulations, rules and orders.
“Order” shall mean a document, electronic or hard copy, issued by Buyer to Seller, in the form of a purchase order or release or similar document, referring to these Terms and Conditions and ordering Supplies.
“Seller” shall mean the individual, partnership, corporation or other entity contracting to furnish the Supplies described in the Order, to whom the Order is issued by Buyer.
“Services” shall mean services (whether or not ancillary to a sale of Supplies) described in Orders, the purchase of which is governed by the terms of this Agreement.
2. BILLING AND SHIPPING/CHANGE ORDERS: All Supplies shall be suitably packed, marked and shipped in accordance with the Order and in accordance with the requirements of common carriers in a manner to secure the lowest transportation cost, while providing adequate protection for the purchased Supplies, and no additional charge shall be made to the Buyer therefore unless otherwise stated on the applicable Order.
Invoices and bills of lading complying with the Order and showing full routing should be dated and mailed at the time of shipment, and a separate invoice must be made for each destination showing point of shipment and how shipped. Invoices bearing transportation charges must be supported with attached original receipted transportation bills. All invoices will be paid pursuant to the terms set forth in the Order, or if not specified therein, net 60 days. Payment date shall be determined from the later of the delivery date or the invoice date, provided that invoices covering materials shipped prior to the specified date will not be paid unless otherwise agreed until their normal maturity after the date specified for delivery.
Buyer shall have the right at any time prior to the delivery of any Supplies to make changes in drawings, designs, specifications, packaging, place of delivery, nature and duration of services, and method of transportation, or require additional or diminished work. If any such changes cause an increase or decrease in the cost or the time required for the performance or otherwise affect any other provision of the Order, an equitable adjustment shall be made and the Order shall be modified in writing accordingly. Seller’s claims for adjustment under this section shall be deemed waived unless asserted in writing (including the amount of the claim) and delivered to Buyer within thirty (30) days from the date Seller receives the change order.
3. ACCEPTANCE: The Agreement shall become a binding contract when it is accepted either by Seller’s acknowledgment or performance. Seller acknowledges that the Agreement, along with any attachment from Buyer relevant to the purchase of the Supplies (“Attachment”), and all documents incorporated by specific reference into the Agreement or any Attachment, constitute the complete and exclusive statement of the terms of this agreement governing all purchases of Supplies by Buyer from Seller, regardless of whether or not Buyer or Seller expressly make reference to these Terms of Purchase in any documentation related to any such purchase. Buyer’s Order is expressly limited to, and expressly made conditional upon Seller’s acceptance of, the terms of this Agreement. Buyer hereby objects to and rejects any terms in any of Seller’s quotations, acknowledgment forms, or other Seller documents that are different than or in addition to the Agreement, and such terms are considered to be material alterations and shall not constitute any part of the agreement between Buyer and Seller. Any reference in the Order to Seller’s quotation or proposal does not imply acceptance of any terms or conditions in that quotation or proposal. Buyer may inspect or test Supplies at any time or place and such inspection or testing by Buyer (as well as Buyer’s failure to detect any defect in Supplies) shall not constitute “acceptance” by Buyer nor impose any liabilities on Buyer.
By acceptance of this Agreement, Seller agrees that the prices contained herein are not in excess of Seller’s list, catalog or published prices; that such prices are not higher than prices charged to other purchasers for similar materials or equipment, and that the said prices are not in excess of the prices provided by any Law.
4. DELIVERY; TITLE; RISK OF LOSS: Seller hereby acknowledges that time is of the essence in the performance of this contract and except as herein specified, delivery shall be strictly in accordance with the delivery schedule. If Seller’s deliveries fail to meet such schedule with the result that Buyer elects to call upon Seller for Air Express shipments, Seller shall pay the difference between freight and Air Express rates. In addition, in the case of late delivery by Seller, Buyer may obtain materials and services from other sources and hold Seller responsible for any damages occasioned thereby. Title and risk of loss to Supplies shall remain in Seller until Supplies in a completed state have been delivered to and accepted by Buyer or an agent or consignee duly designated by Buyer at the delivery point specified by Buyer. Supplies to be shipped shall be shipped F.O.B. destination, unless otherwise specified by Buyer.
5. FORCE MAJEURE: Neither party shall be liable for delays or defaults performing under this Agreement due to (1) acts of God or public enemy, (2) acts of United States or any state or political subdivision thereof, (3) fires, floods, explosions or other catastrophes, (4) epidemics and quarantine restrictions, (5) strikes, slowdowns, or labor stoppages of any kind, (6) freight embargoes, (7) unusually severe weather, (8) delays of a supplier due to such causes, or (9) causes beyond the control and without the fault or negligence of Seller in furnishing Supplies or of Buyer in accepting Supplies hereunder, provided that when the Seller has reason to believe that deliveries will not be made as scheduled, written notice setting forth the cause of the anticipated delay shall be given immediately to Buyer. Buyer shall have the right to terminate this Agreement if the cause of the delay or default extends beyond fourteen (14) days from the date of such notice.
6. NOTICE OF LABOR DISPUTES: Whenever Seller has knowledge that any actual or potential labor dispute is delaying or threatens to delay the timely performance of this Agreement, Seller shall immediately give notice thereof, including all relevant information with respect thereto to Buyer. Buyer shall have the option to terminate this Agreement in accordance with Section 5 herein.
7. WARRANTIES: Seller warrants that it has clear title to all Supplies furnished under the Order and that such Supplies are being delivered to Buyer free and clear of any encumbrances of any nature. Seller warrants that Supplies provided under the Order, if such are Supplies other than Services, will be merchantable, fit for the intended purpose, free from any defects in material or workmanship, free and clear of any encumbrances and will conform to any specifications, samples and other descriptions and any other requirements of Buyer set forth in the Order or furnished to Buyer. Seller warrants that Supplies provided under the Order, if such Supplies are Services, will be performed in a good, timely, and workmanlike manner that meets or exceeds industry standards, free from any defects, and will conform to any specifications, samples and other descriptions and any other requirements of Buyer set forth in the Order or furnished to Buyer. If required by Buyer, Seller shall promptly correct or replace defective or nonconforming Supplies. Shipping costs from Buyer’s place of business to Seller’s place of business for such returns shall be borne by Seller. If Buyer does not require correction or replacement, Seller shall repay such portion of the Order price of said Supplies as is equitable under the circumstances. These warranties shall survive acceptance and payment and shall run to Buyer, its successors, assigns, customers and users of Supplies, and shall not be deemed to be exclusive, but rather, the aforesaid warranties shall be in addition to not lieu of Buyer’s other rights under the Order or at law or in equity. Seller agrees, at its own expense and whenever and as often as reasonably requested by Buyer, to furnish and deliver to Buyer satisfactory evidence showing that all requirements have been fully and completely complied with and that Supplies supplied hereunder fully and completely conform thereto. Buyer’s approval of Seller’s designs, materials or Supplies shall not relieve Seller of the warranties set forth herein. The foregoing rights of Buyer are not exclusive and shall not limit Buyer’s right to avail itself of any other remedy provided by the Order, at law or in equity.
Seller hereby represents, warrants and covenants that Supplies purchased hereunder and the manufacture, sale, resale or use of them will not infringe any patent, copyright or other intellectual property rights (“Intellectual Property Rights”) of other persons. Unless otherwise specifically agreed to in writing, Seller agrees to indemnify and hold harmless Buyer and its successors, assigns, customers and users of Supplies against any loss, damage, liability, costs and expenses which may be incurred by them as a result of or in defending or settling any suit, claim, judgment or demand involving infringement of Intellectual Property Rights of other persons by the sale, resale or use of Supplies purchased hereunder. Seller agrees that it will assume the defense of Buyer and its successors, assigns, customers and users of Supplies against any such aforementioned suits, claims or demands, and Buyer shall be consulted and have approval rights in the choice of defense counsel and the conduct of the defense.
THE WARRANTIES AND REMEDIES PROVIDED FOR HEREIN SHALL BE IN ADDITION TO THOSE IMPLIED BY LAW AND SHALL EXIST NOTWITHSTANDING THE ACCEPTANCE BY THE BUYER OF ALL OR PART OF THE SUPPLIES IN RESPECT TO WHICH SUCH WARRANTIES AND REMEDIES ARE APPLICABLE. NEITHER ACCEPTANCE OF THE SUPPLIES PURCHASED HEREBY NOR ANY INSPECTIONS THEREOF SHALL WAIVE ANY BREACH OF WARRANTY WHETHER EVIDENT AT SUCH TIMES OR NOT.
8. INDEMNITY/LIMITATION OF LIABILITY: Seller shall defend, indemnify and hold harmless Buyer, its affiliates, vendors, and their officers, directors, shareholders, employees, and agents from and against any and all loss, liability and expense, including attorneys’ fees, by reason of (i) any actual or alleged violation of any Law, (ii) injury, death or property damages resulting in whole or in part, from any negligent act or omission on the part of the Seller or which may result from installation, operation or use of the Supplies, (iii) a defect in the Supplies, or (iv) any breach or alleged breach by Seller of any representation, warranty, or other provision of this Agreement. Upon notification, Seller shall promptly assume full responsibility for the defense of any and all claims, demands, suits, proceedings, and actions brought against Buyer, its affiliates, vendors, and their officers, directors, shareholders, employees, and agents, arising out of, connected with the Supplies, or for alleged unfair competition resulting from similarity in design, trademarks, or appearance of the materials or equipment. Seller shall further indemnify and hold Buyer, its subsidiaries, affiliated companies, agents and vendors harmless from any and all expenses, losses, claims, royalties, profits, and damages, including court costs and attorneys’ fees, resulting from the bringing of such suits or proceedings or the threat thereof and from any settlement, decree or judgment therein. Buyer reserves the right to control any such suit or proceeding.
UNDER NO CIRCUMSTANCES SHALL BUYER BE LIABLE FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY TYPE, WHETHER IN CONTRACT, TORT, WARRANTY OR OTHERWISE, OR FOR ANY DAMAGES RELATED TO OR ARISING FROM AN ORDER EXCEEDING THE TOTAL AMOUNT OF THE ORDER.
9. INSPECTIONS: All Supplies are subject to final inspection and approval at Buyer’s plant or other places designated by Buyer in writing notwithstanding prior inspections. Such inspection may be made at any time. Payment for any item hereunder shall not be deemed an acceptance. Buyer reserves the right to (i) reject and refuse acceptance of Supplies which are not in conformity with the instructions, specifications, drawings and data or Seller’s warranty (express or implied) and to return said Supplies at Seller’s expense, for full credit at the order price without prejudice to other damages for such breach, (ii) require Seller, at Seller’s expense to replace rejected materials at the unit price of the Order, or (iii) consider the Order breached as to the rejected quantity and cancelled as to any unfulfilled portion of the Order, and to hold Seller liable for such breach and cancellation. Seller shall not replace or correct defective Supplies unless so directed by Buyer in writing. Inspection cost and expense for Supplies found to be defective shall be charged to Seller. If Seller received a written direction from Buyer to correct any nonconformance, Seller shall promptly correct the defect in the time frame required by Buyer. In addition, Seller shall be responsible for all costs and expenses resulting from the defective Supplies, including, without limitation, the following: Rework, material, labor, and freight incurred in repairing the Supplies and all other components damaged as a result of the defect.
10. TERMINATION:
A. For Default
1) Buyer may terminate this Agreement, any part thereof, by written notice of default to Seller under any of the following circumstances:
a) If Seller fails to perform within the time specified by Buyer.
b) If Seller fails to comply with other provisions of this Agreement and does not cure any such failure within a period of ten (10) days after receipt of notice from Buyer specifying such failure.
c) If Seller becomes insolvent or makes a general assignment for the benefit of creditors or files or has filed against it a petition of bankruptcy or for reorganization, or pursues any other remedy under any other Law relating to the relief for debtors or in the event a receiver is appointed for Seller’s property or business.
2) In the event of such termination, Buyer may purchase or manufacture similar Supplies and/or require Seller to transfer title and deliver to Buyer any and all property produced or procured by Seller under this Agreement and Seller shall be liable to Buyer for any excess cost to Buyer.
B. Any termination by Buyer, whether for default or otherwise shall be without prejudice to any claims for damages or other rights of Buyer against Seller.
C. Seller shall continue performance of this Agreement to the extent not terminated. Any provisions for delivery or acceptance of the Supplies in installments shall not make severable the obligations of the Seller.
D. Notwithstanding anything to the contrary, Buyer shall have the right for any reason and at its convenience to cancel and/or terminate any Order in whole or in part at any time by written notice to Seller. Upon receipt of notice, Seller shall immediately discontinue performance and shall comply with Buyer’s instructions concerning disposition of completed and partially completed Supplies, work in progress and materials acquired pursuant to the Order. In the event of such cancellation and/or termination, Seller shall be paid an amount in settlement to be mutually agreed upon by the parties which shall cover Seller’s reasonable costs of performance incurred prior to cancellation/termination in connection with the Supplies for which the Order is terminated plus a reasonable profit based upon such costs; provided, however, such payment shall not exceed the price specified in the Order for such Supplies. TO THE FULLEST EXTENT NOT PROHIBITED BY LAW, BUYER SHALL IN NO EVENT BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY CHARACTER IN CONNECTION WITH THE TERMINATION OF THE ORDER PURSUANT TO THIS SECTION 10.D., WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED TO BUYER IN ADVANCE OR COULD HAVE BEEN REASONABLY FORESEEN BY BUYER. Seller shall advise Buyer, in writing, of Seller’s claim, if any, for cancellation/termination costs within seven (7) days after receipt of Buyer’s notice of termination. If a court of competent jurisdiction finds that any termination for default was wrongful, then such termination shall be automatically converted to a termination for convenience and the rights and obligations of the parties will be as set forth in this Section 10.D.
11. COMPLIANCE WITH LAW: Seller guarantees that its performance under this Agreement and all Supplies will comply with all Laws. Seller represents that the Supplies to be furnished pursuant to this Agreement were or will be produced in compliance with the requirements of the Fair Labor Standard Act of 1938, as amended, Executive Order 11246, as amended, all equal opportunity Laws and regulations, and all applicable employment Laws. Seller guarantees that it will comply with all export Laws of the United States and any other applicable jurisdiction. Seller agrees to comply with Buyer’s environmental, health and safety standards during Seller’s performance hereunder and when at Buyer’s jobsites/facilities/customer sites.
12. INTELLECTUAL PROPERTY: “Intellectual Property” means all proposals, prototypes, designs, methods, processes, inventions, ornamental designs, works of authorship, requirements, specifications, graphical displays, interfaces, marks, knowhow, algorithms, codes, computer programs, software, strategies, invention disclosures, patents, copyrights, mask works, industrial property rights, trademarks, trade secrets, and other information or rights of a similar nature worldwide to the extent that such information or rights are created or made possible by Seller (alone or acting with Buyer or others) and result from the Seller’s performance under this Agreement or are included in any Supplies provided to Buyer.
Seller shall promptly disclose in writing to Buyer all Intellectual Property conceived or first reduced to practice or created in the performance of this Agreement. Seller hereby assigns to Buyer all right, title, and interest it has to any such Intellectual Property. To the extent Seller does not have the right to so assign such Intellectual Property to Buyer, Seller hereby grants to Buyer worldwide, non-exclusive, perpetual, fully-paid, irrevocable, transferable licenses (with rights to grant sublicenses) to (i) make, have made, use, offer for sale, sell, import, (ii) copy, distribute, publicly display, publicly perform, make derivative works, embed, operate, install, maintain, repair, and otherwise freely exploit in connection with the Supplies and similar, related or integrated goods or services, all Intellectual Property which Seller provides or has provided to Buyer either during the term of or prior to the effective date of this Agreement, in any and all media now known or later developed.
Seller will cooperate fully and will execute or cause to be executed any documents required to establish, defend and enforce Buyer’s Intellectual Property rights under this Agreement.
All drawings, specifications and other technical data or information furnished by Buyer hereunder shall remain the property of Buyer and shall not be disclosed to others or used for manufacturing purposes, for other than Buyer’s order, without Buyer’s prior written permission. In the event materials furnished by Buyer to Seller include any Intellectual Property of Buyer, Seller is granted a non-exclusive, non-transferable, non-sublicensable and non-assignable license required only for the production of materials under the Order, and shall use Buyer’s Intellectual Property only for that purpose. Except for this license, no right, interest, ownership or privilege of use of Buyer’s Intellectual Property shall inure to the benefit of Seller.
13. INSURANCE:
A. Buyer shall not insure nor be responsible for any loss or damage to any property of any kind owned or leased by Seller (including any subcontractor), its employees, servants or agents.
B. Seller and its subcontractors, if any, at their sole costs, shall maintain insurance coverage throughout the entire term of this Agreement as described below with insurance companies reasonably acceptable to Buyer. The limits set forth are minimum limits and shall not be construed to limit Seller’s liability. All costs and deductible amounts shall be for the sole account of Seller or its subcontractors. All policies required by Buyer pursuant to this Agreement (or otherwise) shall name Buyer as an additional insured and waive subrogation rights in favor of Buyer. All policies shall also be designated as primary coverage and non-contributory to any similar coverage carried by Buyer.
C. Seller shall not commence work or provide Supplies until all insurance as required hereunder has been obtained, and certified copies of such insurance policies or certificates of insurance have been submitted to and accepted by Buyer.
D. All policies shall contain provisions that provide at least thirty (30) days written notice of any cancellation, non-renewal, or reduction in coverage to Buyer. Seller shall deliver Certificates of Insurance in a form satisfactory to Buyer evidencing the existence of insurance required above.
E. Any policy of insurance with respect to work to be performed under this Agreement and submitted by Seller must be acceptable to Buyer. Insurers must have a minimum rating of A- as evaluated by the most current A.M. Best Rating Guide. If the insurer has a rating of less than A-, Seller must receive specific written approval from Buyer’s Purchasing Representative prior to proceeding with work any work or providing any Supplies.
F. The required coverage shall be:
Worker’s Compensation and Employers’ Liability Insurance providing benefits as required by applicable law; with a minimum limit of $1,000,000 per occurrence or limits set by applicable law, whichever is greater;
Commercial General Liability Insurance (Occurrence Coverage) including products, completed operations, contractual liability coverage of indemnitees contained in this Agreement (if applicable) and Seller’s contingent liability for subcontractors with a combined single limit of liability of $5,000,000 per occurrence for bodily injury or death and property damage;
Business Automobile Liability Insurance (Occurrence Coverage) for owned, non-owned, and hired automotive equipment with a minimum combined single limit of liability of $2,000,000 for each occurrence for bodily injury and property damage.
The minimum limits of coverage required by this Agreement may be satisfied by a combination of primary and excess or umbrella insurance policies.
G. If the scope of work under the Order includes design or engineering or other professional Services, Buyer will have the option of requiring an Errors or Omissions Liability policy with appropriate coverage.
14. CONFIDENTIALITY: Seller agrees that all information relating to Buyer’s business, including without limitation, customer lists, trade secrets, financial information, information relating to employees, plans, strategic initiatives, specifications and improvements to Supplies, are Buyer’s exclusive and proprietary property (collectively, “Confidential Information”) and shall not be utilized for purposes other than fulfillment of the Order. Seller shall safeguard, treat as confidential, and shall not disclose to any third party, use, or reproduce any Confidential Information so long as, and to the extent that such information does not become part of the public domain through no fault of Seller. These obligations shall survive the termination or expiration of the Order. Buyer shall not be liable for any loss or damage resulting from Seller’s use of any Confidential Information. Title to all Confidential Information shall at all times remain with Buyer, and Seller shall take all necessary measures to preserve Buyer’s right, title and interest in and to Confidential Information. Neither the delivery of the Order nor the furnishing of Confidential Information will be deemed to grant to Seller, expressly or by implication, any right or license to use any Confidential Information except as specifically provided in this Agreement.
15. REMEDIES: The remedies reserved in this Agreement to Buyer shall be cumulated and additional to any other or further remedies provided in law or equity.
16. INCONSISTENCIES: In the event the printed conditions hereof are inconsistent with the typed, stamped and/or written provisions on the Agreement hereof, the written, stamped and/or typed provisions shall govern
17. ASSIGNMENT: Seller shall not assign this Agreement or any monies due or to become due hereunder unless so permitted by the prior written consent of Buyer.
18. AUDIT RIGHTS: Buyer may inspect and audit, on reasonable notice, Seller’s books, records and its facilities, or such parts of its facilities as may be engaged in the performance of this Agreement.
19. INDEPENDENT CONTRACTOR: Seller’s provision of Supplies is as an independent contractor and Seller shall have exclusive control and direction of the persons engaged by Seller, including, but not limited to, employees of Seller working at Buyer facilities. Seller assumes full responsibility for the acts and omissions of such persons. Seller shall have exclusive liability for the payment of and compliance with all Laws pertaining to local, state, and federal or other governmental entity payroll taxes or contributions, and taxes for unemployment insurance, workers’ compensation, social security and/or similar or related protection for such persons, as required by Law. Seller shall have no power to legally bind, or act on behalf of, Buyer and shall not hold itself out as an agent of Buyer.
20. WAIVER OF MECHANIC’S LIENS: Seller hereby waives its rights to any mechanic’s lien or other lien under any applicable statutes or otherwise for work done or materials furnished in connection with the Supplies. Seller shall obtain from any subcontractor or materialman prior to the performance of any work on the Supplies, or to the furnishing of any materials for the Supplies, a written waiver satisfactory to Buyer of such subcontractor’s or materialman’s right to any such lien and shall deliver such waiver to Buyer promptly upon receipt thereof. Upon Buyer’s request, Seller shall obtain, without additional cost to Buyer, a bond satisfactory to Buyer to indemnify Buyer against such liens and charges. Seller shall reimburse Buyer for all costs and damages including attorneys’ fees and any special, indirect, incidental, or consequential damages incurred by Buyer in connection with or as a result of the existence or discharge of any such lien or charge, which are not satisfied by such a bond. Amounts due to Seller under any Order may be credited by Buyer against amounts owed to Buyer in respect of such costs or damages.
21. TAXES: Federal, state or local taxes of any nature which are billed to Buyer shall be stated separately in Seller’s invoice.
22. GOVERNING LAW: The contract resulting from acceptance of this Agreement is to be construed and governed according to the laws of the State of Ohio.
23. NON-WAIVER: No waiver of any provision or waiver of any failure to perform any provision of this Agreement shall be effective unless consented to by Buyer in writing, nor shall such waiver constitute a waiver of any provision or failure to perform.
24. SURVIVAL. The provisions of Sections 1, 3, and 7 through 24 will survive any termination or cancellation of this Agreement and/or any Order.
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