(United Shade, an Airxcel brand, is herein referred to as “Purchaser”)
All Purchase Orders issued by Purchaser are expressly limited to the terms and conditions contained herein, in addition to all terms and conditions set forth on the face of the Purchase Order. Acceptance of a Purchase Order by Seller may be made by signing and returning the acknowledgement copy hereof, by other express acceptance, or by shipment of goods hereunder. If Seller uses its own order acknowledgement or other form to accept this order, it is understood that said form shall be used for convenience only and any terms or conditions contained therein inconsistent with or in addition to those contained herein shall be of no force or affect whatsoever between the parties hereto.
Seller warrants the goods sold to Purchaser, and their packaging and labeling, shall be in merchantable condition and shall be free from defects in workmanship and materials, and shall be in conformity with the specifications, drawings, samples and descriptions attached hereto or referred to on the face hereof, if any. Seller warrants that the goods sold to Purchaser shall be fit for such particular purpose and uses, if any, as specified by or otherwise known to Seller. Seller warrants that the goods shall be free and clear of any lien or other adverse claim against title, and to the extent not manufactured to detailed designs furnished by Purchaser shall be free from defects in design. All warranties contained herein shall survive inspection, test and acceptance by Purchaser. Seller agrees, at its own cost and expense to defend and hold Purchaser harmless from and against any and all claims made against Purchaser based upon, relating to, or arising out of any claimed defects in the goods or services sold to Purchaser. Seller.s warranties (and any consumer warranties, service policies, or similar undertakings of the Seller) shall be enforceable by Purchaser and by and subsequent owner or operator of the goods.
3. Shipping Instructions
No charge shall be made to Purchaser for draying and packaging unless authorized by Purchaser. Merchandise shipped by freight or express shall be packed, marked, and described and the carrier shall be selected so as to obtain the lowest rate possible under freight or express classifications or regulations, except when otherwise specified by Purchaser, and penalties or increased charges due to failure so to do will be charged to the Seller. The forgoing notwithstanding, Seller shall comply with all instructions of Purchaser as to packaging, marking, shipping and insurance. Prior to passage of title to Purchaser, the goods shall be held by Seller without risk or expense to Purchaser.
4. Invoices, Other Documents and Charge
Seller shall invoice in duplicate, and all originals of all invoices, Government and commercial bills of lading and air express receipts shall be made available to the Accounts Payable Department of Purchaser when goods are shipped. Packing slips must accompany each case, or container, showing the name of Purchaser, and the Order Number, Item number, and a complete description of its contents. Except as otherwise provided on the face hereof, the contract price includes all cost and charges to be paid or reimbursed to Seller by Purchaser, including without limitation, all applicable taxes and duties and all charges for packing, loading and transportation. Any exceptions must be specifically provided for on the face of the Purchase Order and shall then be listed as separate items on Seller.s invoices.
5. Inspection Nonconformity
Purchaser may inspect the goods and, with respect to nonconforming goods, may return them or hold them at Seller.s risk and expense, and may in either event charge the Seller with cost of transportation, shipping, unpacking, examining, repacking, reshipping, and other like expense. Promptly upon written request, and without expense to Purchaser, Seller agrees to replace or correct defects or any rejected goods or other goods not conforming to the warranty set forth above. In the event of failure of Seller to replace or correct defects in nonconforming goods promptly, Purchaser, after reasonable notice to Seller, may make such corrections or replace such goods and charge Seller for the cost incurred by Purchaser in doing so. Time is of the essence in this transaction. In addition to its remedies for breach of contract, Purchaser reserves the right to return goods in unopened original packing to Seller if delivered to Purchaser more than (5) days after the delivery date shown in shipping instructions. If the delivery date shown in shipping instructions is revised by Purchaser by written notification to Seller, then such five (5) day period shall not commence to run until such revised delivery date. Also, Purchaser reserves the right to refuse goods delivered contrary to instructions or not in recognized standard containers. Purchaser shall be under no duty to inspect goods prior to use or resale, and neither retention, use nor resale of such goods shall be construed to constitute an acceptance of goods not in compliance with requirements of Purchaser.s order.
Unless agreed in writing by Purchaser, Seller shall not purchase materials, or make material commitments, or production arrangements, in excess of the amount, or in advance of the time necessary to meet Purchaser.s delivery schedule. Purchaser shall have the right at any time to make changes in drawings, designs, specifications, materials, packaging, time and place of delivery and method of transportation. If any such changes cause an increase or decrease in the cost, or the time required for the performance, an equitable adjustment shall be made and this agreement shall be modified in writing accordingly. Seller agrees to accept any such changes subject to this paragraph. This right to an adjustment shall be deemed waived unless asserted by Seller within (30) days after the change is ordered. Purchaser or subsequent owner reserves the right to terminate any order or any part thereof for its sole convenience. In the event of such termination, Seller shall immediately stop all work on such goods and shall immediately cause any of its suppliers of subcontractor to cease such work. Seller shall be paid a reasonable termination charge consisting of a percentage of the order price reflecting the percentage of the work performed prior to the notice of termination. Such charge shall be Seller.s only remedy for such termination. Seller shall not be paid for any work done after receipt of the notice of termination nor for any work done by Seller.s supplies or subcontractors which Seller could reasonably have avoided.
Purchaser may also terminate any order or any part thereof for cause in the event of any default by the Seller or if the Seller fails to comply with any of the terms and conditions of the Purchase Order. Late deliveries, deliveries of goods which are defective or which do not conform to the Purchase Order, and failure to provide Purchaser, upon request, reasonable assurances of future performance shall all be causes allowing Purchaser to terminate a Purchase Order for cause. In the event of termination for cause, Purchaser shall not be liable to Seller for any amount, and Seller shall be liable to Purchaser for any and all damage sustained by reason of the default which gave rise to the termination.
Seller will defend and indemnify Purchaser, upon demand, against all claims, actions, liability, damage, loss, and expense (including investigative expense and Attorney.s fees incurred in litigation or because of threatened litigation) as the result of Purchaser.s purchase and/or use of the goods; or arising from, or alleged to arise from patent, Trademark, or copyright infringement; unfair competition; the failure or alleged failure of the goods to comply with specifications or with any express or implied warranties of Seller; the alleged violation by such goods or in its manufacture or sale of any statute, ordinance, or administrative order, rule or regulation; defects, whether latent or patent, in material or workmanship; defective design; defective warnings or instructions; or Sellers negligence.
9. Price Reductions
Seller will give Purchaser the benefit of any price reductions occurring before the specified shipping date or to actual times of shipment, whichever is later. Likewise, if Seller accepts this order as a commission merchant, Seller shall obtain for Purchaser from the manufacturer of such goods, the benefit of price reductions to the specified date or to actual time of shipment, whichever is later. Seller warrants that the price for the articles sold to Purchaser hereunder are not less favorable than those currently extended to any other customer for the same or similar articles in similar quantities.
10. Confidential Information
Seller shall consider all information furnished by Purchaser to be confidential and shall not disclose any such information to any other person or use such information itself for any purpose other than performing this order unless Seller obtains written permission from Purchaser to do so. This confidentiality requirement shall also apply to drawings, specifications, or other documents prepared by Seller for Purchaser in connection with this order, Seller shall provide confidential information only to those of its agents, servants, and employees who have been informed of the requirements of this paragraph and have agreed to be bound by them. Upon completion or termination of this order, Seller shall make such disposition of all such information and items as may be directed by Purchaser. Seller shall not advertise or publish the fact that Purchaser has ordered goods from Seller, nor shall any information relating to this order be disclosed without Purchaser.s written permission. Unless otherwise agreed in writing, no commercial, financial, or technical information disclosed in any manner or at any time by Seller to Purchaser shall be deemed secret or confidential, and Seller shall have no rights against Purchaser with respect thereto except such rights may exist under patent laws.
11. Tools, Dies, Etc.
Seller agrees that the information, tools, jigs, dies, etc., drawings, patterns, and specifications supplied or paid for by Purchaser shall be and remain Purchaser.s property, shall be used only on Purchaser.s orders, and shall be held by Seller for Purchaser unless Purchaser directs otherwise. Seller will account for such items and keep them in good working condition and fully covered by insurance at all times without expense to Purchaser. In the event Seller devises and incorporates any new features of design into any goods made under this order, Seller grants to Purchaser the right of reproduction of such goods, together with a royalty.free, non-exclusive, irrevocable license to use such new features of design.
12. General Provisions
(a) Seller and Purchaser shall be independent contractors. This transaction does not create a principal-agent or partnership relationship between them, and neither one may legally commit the other in any matter.
(b) Purchaser may deduct from any payment due to Seller or set-off against any claim by Seller any amount which is due to Purchaser from Seller for any reason, including, among other reasons any excess transportation charges caused by deviations from Purchaser.s shipping instructions or the shipping of partial shipments.
(c) Seller shall comply with all laws, regulations, and policies applicable to it by any jurisdiction, and shall obtain all permits needed to complete this transaction.
(d) Seller shall obtain at Sellers expense, Comprehensive General Liability Insurance including Contractual Liability and Products liability covering Seller.s premises and operations and products with minimum limits of $3,000,000 per occurrence, $3,000,000 aggregate bodily injury, and $300,000 property damage in company or companies as shall be satisfactory to Purchaser; and, shall upon request, furnish Purchaser with a certificate of insurance certifying to the existence of same. All such policies and the certificate of insurance shall provide that the coverage shall not be terminated or changed without at least thirty (30) days prior written notice to Purchaser. Purchaser shall be added as additional insured under a broad form vendor.s endorsement. In the event that Seller.s obligations under a Purchase Order require or contemplate performance of services by Seller.s employees, or other persons under contract to Seller, to be done on Purchaser.s property or property of Purchaser.s customers, the Seller agrees that all such work shall be done as an independent contractor, and that the persons doing such work shall not be considered employees of Purchaser. Seller shall maintain all necessary insurance coverage.s, including public liability and Workmen.s Compensation Insurance. Seller shall indemnify and save harmless and defend Purchaser from any and all claims or liabilities arising out of the work covered by this paragraph.
(e) Goods ordered hereunder to be made with use of Purchaser.s confidential information, designs, trademarks or trade names or with the trademarks or trade names of Purchaser.s customers shall be furnished by Seller exclusively to Purchaser. Any excess of such inventory shall be destroyed by Seller at its own expense.
(f) Seller warrants that it has neither accepted nor paid any gratuities of any kind from or to any employees of Purchaser in connection with placement of this order.
(g) Seller shall cooperate fully with Purchaser at Seller.s expense in obtaining approvals of the goods requested by Purchaser from certifying organizations such as Underwriters Laboratories.
(h) Any goods that are hazardous will be packaged, marked, and shipped by Seller to comply with all special Purchaser requirements. Seller shall furnish Purchaser a Material Hazard Data Sheet and a letter of compliance covering Conflict Minerals and ROHS compliance for all such goods.
(i) Purchaser shall not be liable to Seller for any loss incurred by Seller due to Strikes, Riots, Storms, Fires, Explosions, Acts of God, War, Embargo, Government boycott, or any other governmental action or any other causes similar thereto, beyond the reasonable control of Purchaser. Any failure or delay in performance caused by any of the forgoing shall not be a default hereunder.
(j) Purchaser may waive performance of any condition, but waiver by Purchaser of a condition shall not be considered a waiver of that condition for succeeding performance. None of Purchaser.s remedies hereunder shall exclude its pursuit of other legal remedies.
(k) This document and any other documents mentioned on the face hereof, constitute the entire agreement between the parties on this subject. All prior representations or arrangements on this subject matter are superseded by these terms. All amendments to these terms must be agreed to in writing by Purchaser.
(l) If any manufacturer.s excise tax, value added tax, or other tax measured by selling price is included in or added to the price of the goods paid by Purchaser, then, in the event all or any part of that tax shall be refunded to the Seller, Seller shall promptly remit such refund in full to Purchaser.
(m) This order is non-assignable. Any attempt to assign without Purchaser.s written consent is void.
(n) This transaction and all its terms shall be construed in accordance with, and all disputes shall be governed by the laws of the State of Kansas, USA, but without giving force to any provision that would incorporate the law of any other jurisdiction. Seller submits to the jurisdiction of the courts located in the State of Kansas in the event of any proceedings therein in connection herewith.
(o) Any and all disputes arising between Purchaser and Seller in connection with this transaction (other than actions for contribution or indemnity with respect to court actions involving third parties) shall be exclusively and finally decided by arbitration in Kansas under the commercial arbitration rules of the American Arbitration Association. The arbitration award shall be final and non-appealable. There shall be three arbitrators, one chosen by each party and the third chosen by the first two, or in the event of their failure to agree by the commercial arbitration rules of the American Arbitration Association. The arbitrators shall reach their decision, and state it in writing with reasons for it, within twelve months after the appointment of the third arbitrator.
13. Fair Labor Standards
Seller hereby agrees to comply with all applicable requirements of section 6, 7, and 12 of the Fair Labor Standards Act, as amended, in the performance of work hereunder, and with all applicable regulations and orders issued under Section 14 thereof. All invoices (packing slips if no invoices are issued) shall contain the following written Assurance, “we hereby certify that these goods were produced in compliance with all applicable requirements of section 6, 7, and 12 of the Fair Labor Standards Act, as amended and of regulations and orders of the United States Department of Labor issued under Section 14 thereof”.
14. Affirmative Action
During the performance of this purchase order the Seller agrees to comply with Executive Order 11246 of September 24, 1965 (as may be amended), and with the rules, regulations, and relevant orders of the Secretary of Labor, and with all other applicable laws and regulations. Seller will, upon request, execute Purchaser-required certificates detailing required civil rights compliance including Equal Opportunity, Non-Segregated Facilities, Minority Business, Employment of Veterans, and Employment of Handicapped Persons.