1.TERMS AND CONDITIONS
THIS ACKNOWLEDGMENT AND ACCEPTANCE (“ACKNOWLEDGMENT”) IS EXPRESSLY LIMITED TO AND MADE CONDITIONAL UPON THE TERMS AND CONDITIONS CONTAINED HEREIN, AND ANY OF THE PURCHASER’S TERMS AND CONDITIONS WHICH ARE IN ADDITION TO OR DIFFERENT FROM THOSE CONTAINED HEREIN, WHICH ARE NOT SEPARATELY AGREED TO IN WRITING (EXCEPT ADDITIONAL PROVISIONS SPECIFYING QUANTITY, CHARACTER OF THE PRODUCTS ORDERED, AND SHIPPING INSTRUCTIONS) ARE HEREBY OBJECTED TO AND SHALL BE OF NO EFFECT. OBJECTION TO ANY OF THE TERMS AND CONDITIONS CONTAINED HEREIN SHALL BE DEEMED TO HAVE BEEN WAIVED IF WRITTEN NOTICE OF SUCH OBJECTION IS NOT RECEIVED BY THE COMPANY WITHIN TEN DAYS OF THE DATE OF THIS ACKNOWLEDGEMENT. THE PURCHASER WILL IN ANY EVENT BE DEEMED TO HAVE ASSENTED TO ALL TERMS AND CONDITIONS CONTAINED HEREIN IF ANY PART OF THE PRODUCTS DESCRIBED HEREIN IS ACCEPTED.
Purchaser shall purchase the goods from the Company at the price (the “Price”) set forth in the Purchase Order. The Price is exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Purchaser. Purchaser shall be responsible for all such charges, costs and taxes; provided, that, Purchaser shall not be responsible for any taxes imposed on, or with respect to, the Company’s income, revenues, gross receipts, personnel or real or personal property or other assets.
a. Purchaser shall pay all invoiced amounts due to the Company within thirty (30) days from the date of the Company’s invoice. Purchaser shall make all payments hereunder by wire transfer or check and in US dollars.
b. Purchaser shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Purchaser shall reimburse the Company for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under the terms of this Acknowledgment or at law (which the Company does not waive by the exercise of any rights hereunder), the Company shall be entitled to suspend the delivery of any goods if Purchaser fails to pay any amounts when due hereunder and such failure continues for thirty (30) days following written notice thereof.
c.Purchaser shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with the Company, whether relating to the Company’s breach, bankruptcy or otherwise.
a. The goods will be delivered within a reasonable time after the receipt of Purchaser’s Purchase Order, subject to availability of finished goods. the Company shall not be liable for any delays, loss or damage in transit.
b. Unless otherwise agreed in writing by the parties, the Company shall deliver the goods FOB the Company’s dock (the “Delivery Point”) using the Company’s standard methods for packaging and shipping such goods. Purchaser shall take delivery of the goods within five (5) days of the Company’s written notice that the goods have been delivered to the Delivery Point. Purchaser shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the goods at the Delivery Point.
5. Title and Risk of Loss.
Title and risk of loss passes to Purchaser upon delivery of the goods at the Delivery Point. As collateral security for the payment of the purchase price of the goods, Purchaser hereby grants to the Company a lien on and security interest in and to all of the right, title and interest of Purchaser in, to and under the goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Indiana Uniform Commercial Code.
6. Inspections and Rejections
a. Purchaser shall inspect the goods within seven (7) days of receipt (“Inspection Period”). Purchaser will be deemed to have accepted the goods unless it notifies the Company in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by the Company. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Purchaser’s Purchase Order; or (ii) product’s label or packaging incorrectly identifies its contents.
b. If Purchaser timely notifies the Company of any Nonconforming Goods, the Company shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Purchaser in connection therewith. Purchaser shall ship, at its expense and risk of loss, the Nonconforming Goods to the Company’s facility. If the Company exercises its option to replace Nonconforming Goods, the Company shall, after receiving Purchaser’s shipment of Nonconforming Goods, ship to Purchaser, at the Company’s expense and risk of loss, the replaced goods to the Delivery Point.
c. Purchaser acknowledges and agrees that the remedies set forth in Section 6(b) are Purchaser’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 6(b), all sales of goods to Purchaser are made on a one-way basis and Purchaser has no right to return the goods purchased under this Acknowledgment to the Company.
7. Purchaser’s Property
Unless otherwise agreed in writing, all tools, equipment or materials of every description furnished to the Company by Purchaser or paid for by Purchaser, and all replacements thereof, and all materials affixed or attached thereto, shall be and remain the personal property of Purchaser. Each individual item shall be plainly marked or otherwise adequately identified by the Company as the property of Purchaser and be safely stored separate and apart from the Company’s Property. The Company shall not substitute any of Purchaser’s property nor use such property except in filling Purchaser’s Orders of Purchaser. The Company waives any right to hold a lien against said property and agrees that such property shall be subject to removal at Purchaser’s request, in which event the Company shall prepare such property for shipment and redeliver it to Purchaser in the same condition as originally received by the Company, reasonable wear and tear excepted, at the Company’s expense. The foregoing shall not affect the rights, if any, of the U.S. Government in such property.
8. Limited Warranty
a. For a period of 12 months from the date of delivery, the Company warrants and represents to Purchaser that all products and materials sold by the Company pursuant hereto will, when delivered to Purchaser, conform to the specifications, drawings or samples specified or furnished thereof and be and remain free from defects in workmanship and material. This warranty shall survive any inspection, delivery or acceptance of, or payment by Purchaser for, the products or materials or services.
b. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 8(a), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
c. The Company shall not be liable for a breach of the warranty set forth in Section 8(a) unless: (i) Purchaser gives written notice of the defect, reasonably described, to the Company within thirty (30) days of the time when Purchaser discovers or ought to have discovered the defect; (ii) the Company is given a reasonable opportunity after receiving the notice to examine such goods and Purchaser (if requested to do so by the Company) returns such goods to the Company’s place of business at the Company’s cost for the examination to take place there; and (iii) the Company reasonably verifies Purchaser’s claim that the goods are defective.
9. Limitation of Liability
a. IN NO EVENT SHALL SELLER BE LIABLE TO PURCHASER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
b. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS ACKNOWLEDGEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER
c. The limitation of liability set forth in Section 9(b) above shall not apply to (i) liability resulting from the Company’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from the Company’s acts or omissions.
Any changes to an order initiated after the acceptance of a Purchaser Order requires the written approval of both parties and shall reflect any changes in delivery schedule, Company’s out-of-pocket costs and any other revision resulting from such change.
11. Process Control
When prior review is required by Purchaser, the Company shall identify and present to the Purchaser processes for planning the fulfillment of Purchase Order requirements. The Company shall not modify the manufacturing and/or processing of controlled items without Purchaser’s prior written approval, which shall not be unreasonably withheld.
12. Certificate of Conformance
The Company agrees to generate a certificate of conformance when requested by the Purchaser in a form mutually agreed upon and reasonably acceptable to the parties.
13. Title to Drawings and Specifications
Purchaser shall at all times retain title to all drawings and specifications furnished by Purchaser to the Company. The Company shall use such drawings and specifications only in connection with Purchase Orders and not disclose or use such drawings and specifications to or for the benefit of any person or entity other than Purchaser. The Company shall, upon Purchaser’s request or completion of orders, promptly return all drawings and specifications to Purchaser.
14. Confidential or Proprietary Information
All non-public, confidential, or proprietary information of either party, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by one party to the other, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” shall not be disclosed or copied by the other party unless authorized in advance by the other party in writing. Upon either party’s request, the other party shall promptly return all documents and other materials received from such other party. Either party shall be entitled to injunctive relief for any violation of this section. This section does not apply to information that is: (a) in the public domain; or (b) rightfully obtained by the disclosing party on a non-confidential basis from a third party.
15. Record Retention
The Company shall maintain complete and accurate records associated with articles and materials throughout procurement, processing, fabrication, inspection, and test (“Quality Records”). Quality Records shall be retained for one (1) year after final payment of any Purchase Order. The Company shall maintain complete and accurate shipping records and invoices related to the goods (“Non-Quality Records”). Non-Quality Records shall be retained for three (3) years after final payment of any Purchase Order.
In addition to any remedies that may be provided under the terms of this Acknowledgment, either party may terminate this Acknowledgment upon written notice if the other party: (i) fails to pay any amount when due under this Acknowledgment and such failure continues for fifteen (15) days after the breaching party’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of the terms of this Acknowledgment, in whole or in part, and such failure continues for thirty (30) days after the breaching party’s receipt of written notice of such failure; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
17. Relationship of the Parties
The parties agree that they are independent contractors, and nothing relating to the sale of goods hereunder shall be deemed or constructed as creating a joint venture, partnership, agency, or employment relationship between Purchaser and the Company.
18. Third Party Beneficiaries
Nothing in this Acknowledgment, express or implied, confers on any third party any legal or equitable right, remedy, or benefit of any nature whatsoever.
Neither party shall assign, transfer, delegate, or subcontract any of its rights or obligations under this Acknowledgment without the prior written consent of the other party. Any purported assignment or delegation in violation of this Section shall be null and void.
No waiver by either party of any of the provisions of this Acknowledgment is effective unless explicitly set forth in writing and signed by such party. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Acknowledgment operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
21. Force Majeure
The Company shall not be liable or responsible to Purchaser, nor be deemed to have defaulted or breached this Acknowledgment, for any failure or delay in fulfilling or performing any of the terms of this Acknowledgment when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of the Company including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
22. Compliance with Laws
Each party shall comply with all applicable laws, regulations and ordinances and maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Acknowledgment. Purchaser shall comply with all export and import laws of all countries involved in the sale of the goods under this Acknowledgment or any resale of the goods by Purchaser. Purchaser assumes all responsibility for shipments of goods requiring any government import clearance. The Company may terminate this Acknowledgment if any governmental authority imposes antidumping or countervailing duties or any other penalties on goods.
23. Governing Law; Jurisdiction
Purchase Orders and acceptances thereof and this Acknowledgment shall be a contract made in the State of Indiana, governed in all respects by the laws of Indiana. Any legal suit, action or proceeding arising out of or relating to this Acknowledgment shall be instituted in the federal courts of the United States of America or the courts of the State of Indiana in each case located in the County of Marion, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.