KONDEX CORPORATION - TERMS AND CONDITIONS OF PURCHASE
1. Governing Provisions
These terms and conditions of purchase, including Buyer's Purchase Order or other document provided by Buyer into which these terms and conditions are incorporated, shall govern the parties' duties, obligations and relationship with respect to the sale by the vendor described herein (the "Seller") and the purchase, acceptance and use by Kondex Corporation (the "Buyer") of the goods and/or services described herein (the "Products"). Buyer's agreement to purchase the Products is limited to these terms. NO UNDERSTANDINGS OR AGREEMENTS THAT ARE INCONSISTENT WITH, DIFFER FROM, MODIFY OR ADD TO THESE TERMS, EXCEPT ADDITIONAL WARRANTIES FROM SELLER, SHALL BIND BUYER, REGARDLESS OF WHETHER SUCH UNDERSTANDINGS OR AGREEMENTS WOULD MATERIALLY ALTER THESE TERMS. SUBJECT TO THE FOREGOING, ANY ADDITIONAL OR DIFFERENT TERMS CONTAINED IN ANY COMMUNICATION RECEIVED BY BUYER AT ANY TIME SHALL BE DEEMED MATERIAL AND OBJECTED TO AND REJECTED WITHOUT ANY NEED FOR FURTHER ACTION BY BUYER, AND SHALL BE OF NO FORCE OR EFFECT. THESE TERMS AND CONDITIONS CONSTITUTE THE FINAL CONTRACT BETWEEN BUYER AND SELLER REGARDING THE PRODUCTS AND ARE THE COMPLETE AND EXCLUSIVE STATEMENT OF THOSE TERMS. Buyer's purchasing representatives are without authority to change these terms and conditions. If this document is deemed an acceptance of a prior offer by Seller, such acceptance is limited to the express terms and conditions contained herein. Seller shall be deemed to have made unqualified acceptance of these terms and conditions on the earliest of the following to occur: (a) Buyer's receipt of a copy of these terms and conditions signed by Seller; (b) Seller's acknowledgment of any purchase order submitted by Buyer from time to time ("Purchase Order") or these terms and conditions; (c) Seller's acceptance of any payment from Buyer; (d) Seller's commencement of manufacture or delivery of the Products; (e) failure by Seller to notify Buyer to the contrary within ten days of receipt of these terms and conditions; or (f) any other event constituting acceptance under applicable law.
2. Packaging and Shipping
Seller shall prepare and package the Products for shipment so as to prevent damage or deterioration. Seller shall clearly mark all packages with Buyer's Purchase Order number, an appropriate description of the Products and the part number and the quantity of items contained in each package. Buyer shall not be obligated to Seller for additional charges of any kind for boxing, packaging, cartage or other extras. Delivery in whole or in part may not be made prior to the established delivery date. Buyer may from time to time change delivery schedules. [Seller agrees to supply Buyer's requirements for Products.] Seller shall deliver Products to Buyer F.O.B. Buyer's facility. For purchases from Sellers outside the United States, if Buyer has designated a delivery term in its Purchase Order, such term shall be defined in accordance with INCOTERMS 2010 of the International Chamber of Commerce, as amended or updated from time to time. Buyer shall have the right to specify the carrier and/or method of shipment, upon adjustment to cover agreed transportation costs. Buyer will return at Seller's expense all Products shipped contrary to instructions or otherwise not in accordance with these terms and conditions, or hold such Products subject to Seller's instructions at Seller's risk and expense. Packing slips satisfactory in form and substance to Buyer shall accompany each shipment. Buyer's count shall be accepted as final on all shipments not accompanied by proper packing lists. Buyer's Purchase Order number and material number must appear on all packing slips and invoices if listed on Buyer's Purchase Order. Any forecasts offered by Buyer are nonbinding and Buyer shall not be required to purchase any minimum amount of Products. Where deliveries are to be made in accordance with Buyer's written releases, notwithstanding any quantity specified herein, Seller shall not procure or manufacture Products covered by the order, or procure materials required therefor, except to the extent authorized by such written releases. Buyer may procure Products from alternate sources. To enable compliance with U.S. Customs and Border Protection Importer Security Filing requirements, Seller shall (or shall cause its shipper to) provide all required or requested U.S. Customs-related documentation to Buyer's designated Customs broker, freight forwarder or other agent ("Agent") at least 72 hours prior to the documentation cut-off date used by such Agent. Such documentation shall be complete and accurate. If Seller does not provide (or cause its shipper to provide) such documentation within such timeframe, Seller shall pay Buyer on demand, as liquidated damages and not as a penalty, an amount identified by Seller of up to $5,000 per affected shipment. Such remedy represents a good faith estimate of the damages Buyer would incur as a result of Seller's failure to provide (or cause its shipper to provide) the documentation within such timeframe.
3. Prices and Payment
Buyer shall pay Seller for Products as set forth on Buyer's Purchase Order. Seller shall provide Buyer will all documentation reasonably requested by Buyer before Buyer shall be required to pay for Products. Buyer reserves the right to set off, against any amounts due or to become due to Seller, any amounts due or to become due from Seller to Buyer. If a price is not stated in Buyer's Purchase Order or agreed by Buyer in writing, the Products shall be billed at the lower of the last price quoted or the prevailing market price. Prices shall be fixed and are not subject to increase without Buyer's prior written approval. Seller represents that it has not offered to Buyer, and shall not offer to Buyer, a price which violates applicable law. Subject to applicable law, Seller warrants that the prices for Products hereunder, and any discounts and rebates, are not less favorable than those Seller currently extends to any other customer for the same or similar goods or services in similar quantities. If during the term of a Purchase Order, Seller sells such goods or services in such similar quantities to any other customer at a price that is lower than the price then in effect hereunder, such lower price shall apply to all goods and services thereafter delivered pursuant to such Purchase Order during the time that the lower price to the other customer remains in effect. Prices are stated and payable in U.S. dollars.
Buyer may terminate its Purchase Order, at any time, for its convenience and in whole or in part, by any reasonable manner, including written correspondence, facsimile or electronic mail. If Buyer terminates its Purchase Order for its convenience, Seller's sole claim shall be for the costs it reasonably incurred in the performance of the Purchase Order prior to such termination, with due allowance for the salvage value of Products and parts. If termination is due to Seller's breach of these terms, Buyer may complete performance of the contract by means it selects and Seller shall be responsible for additional costs incurred by Buyer in so doing.
Time is of the essence with respect to delivery of the Products. Buyer reserves the right to cancel its Purchase Order if Seller does not deliver the Products by the established delivery dates. Whenever Seller has knowledge that any actual or potential delay may occur, Seller shall give Buyer immediate notice thereof.
6. Inspection and Acceptance by Buyer
Buyer may inspect and test the Products at Seller's plant and/or the point of destination. At Buyer's option, Buyer may inspect Seller's quality and reliability procedures as well as the data supporting same. Buyer's acceptance of or payment for the Products shall neither (a) relieve Seller from any of its obligations and warranties hereunder nor (b) constitute a waiver of Buyer's rights and claims hereunder. If Buyer rejects any Products, Seller shall, within 20 business days, at Buyer's option and Seller's expense, either repair or replace such Products. Alternatively, Buyer may retain and correct Products at Seller's expense.
Seller expressly warrants to Buyer, Buyer's customers and the ultimate user and the successors and assigns of all of them that the Products and all articles, material and work covered by any Purchase Order, including any special tools, dies, jigs, patterns, machinery and equipment obtained at Buyer's expense by Seller for the performance of the order (all of which are Buyer's property), will (a) conform to the specifications, representations, standards, drawings, samples or other description furnished by Buyer or Seller or adopted by Buyer; (b) be of good material and workmanship; (c) be new and free from defects; (d) be merchantable, fit and sufficient for the purposes intended; (e) be conveyed to Buyer with good title, free and clear of liens and encumbrances of any nature; (f) comply with all applicable laws; and (g) not infringe on any patent, trademark, copyright or other right of a third party. Buyer's approval of specifications, designs, drawings, samples or descriptions shall not relieve Seller of its warranty obligations. Seller acknowledges that it has knowledge of Buyer's intended use and warrants that all Products that have been selected, designed, manufactured or assembled by Seller based on Buyer's use and will be fit and sufficient for the particular purposes intended by Buyer.
8. Breach of Warranty
If Seller breaches any of its warranties, including its express warranties and its implied warranties of merchantability and fitness for Buyer's specific purpose, Seller shall be liable for all damages incurred by Buyer, including, without limitation, the purchase price of the Products, delivery costs, repair, replacement and cover costs, lost profits, consequential and incidental damages and lost time expended on behalf of Buyer in attempting to make the Products perform as warranted. Seller acknowledges that, if the Products cause Buyer to deliver services or products to its customers either late or below Buyer's standards, Buyer will incur lost profits and other damages for which Seller is liable. Seller shall promptly and at no cost repair or replace any Products failing to conform with the warranties set forth above. Buyer retains the right to correct defective Products at Seller's expense. Products or services provided by Seller or its subcontractors or agents pursuant to repair or replacement shall be subject to the same warranty as provided above. If any Products are made according to Buyer's manufacturing information (e.g., designs, specifications, drawings), such information shall be used only to manufacture Buyer's Products.
9. Release and Indemnification
Seller hereby releases and agrees to promptly defend, indemnify and hold Buyer and its affiliates, shareholders, directors, officers, employees, agents, customers, successors and assigns (in this section 9, collectively "Buyer") harmless from and against all suits, liabilities, losses, claims, demands, proceedings, court costs, actual attorneys' fees, expert witness fees and other expenses arising from any loss, damage, harm or injury (including death) to any person or property relating to the Products or (a) any alleged defects in the Products, (b) any inadequate notices, warnings, disclosures or instructions, (c) the alleged violation of any statute, ordinance, code, standard, law, rule or regulation, (d) any alleged patent, trademark or copyright infringement, (e) any alleged unfair competition resulting from similarity of design, trademark, use or appearance of the Products, (f) any breach of these terms and conditions, (g) any use or consumption of the Products by Buyer, except damages resulting solely and directly from Buyer's negligence; (h) any negligence or wrongful act of Seller, its agents, representatives or subcontractors; (i) any injury, death or occupational disease of any employee or agent of Seller or its subcontractor; and (j) any recalls or corrective actions. Buyer shall have the right (but not the obligation) to control any recall process and Seller shall cooperate with Buyer. Seller agrees upon receiving notification from Buyer to promptly assume full responsibility for defense of any suit or proceeding which may be brought against Buyer and covered by this provision. Buyer may be represented by and actively participate through its own counsel in any such proceedings if it so desires and the cost of representation, including attorneys' fees, shall be paid by Seller. Seller shall, at its own expense, either procure for Buyer the right to continue using Products subject to intellectual property rights claims or, if the performance thereof will not be adversely affected, replace the same with a noninfringing substitute, or modify the Product so it becomes noninfringing, or remove it at Seller's expense and refund to Buyer the purchase price. Seller shall, at its own expense, maintain in effect insurance with respect to its performance hereunder and the Products with such coverages and in such amounts as Buyer may require in writing from time to time and, at a minimum, as may be commercially reasonable. All insurance policies shall be issued by insurance companies reasonably acceptable to Buyer. At Buyer's request, Seller shall cause the issuer of each insurance policy to issue a certificate of insurance naming Buyer as an additional insured and containing an agreement that the policy shall not be terminated or modified without at least 30 days' prior written notice to Buyer, and Seller shall, at Buyer's request, deliver each such certificate to Buyer. Compliance by Seller with the insurance requirements set forth herein shall not relieve Seller from liability under the indemnification provisions of these terms and conditions
10. Applicable Laws
Seller, in the performance of Buyer's Purchase Order, shall comply with all applicable laws, regulations, rules and ordinances, and agrees, upon request, to furnish Buyer a certificate to that effect. If the Products are known to Seller to be restricted, toxic or hazardous substances, or if otherwise required by law, Seller shall provide complete and accurate MSDS sheets.
Buyer shall have the right, at any time, to make changes in drawings, designs, specifications, and 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 of the Purchase Order, an equitable adjustment shall be made. Seller agrees to accept any such changes subject to this section. No other change to the Purchase Order shall be binding unless agreed to in writing by Buyer.
12. Manufacturing Changes
Seller shall give Buyer advance notice in writing of all proposed specification, design, part number and other identification changes, as well as material changes in process procedures made by Seller applying to the Products. All changes require Buyer's prior written approval.
Seller shall hold and maintain in good working order, all machinery, equipment, tools, jigs, dies, patterns, drawings, specifications and samples furnished to Seller by Buyer or paid for by Buyer. Upon the completion of the Purchase Order, Seller shall return such materials to Buyer in good working order, reasonable wear and tear excepted. Unless otherwise agreed by Buyer in writing, Seller shall, at its expense, insure all such items for the reasonable value thereof against loss or damage of any kind. Seller shall keep such materials free of all liens and encumbrances.
14. Technical and Proprietary Information
Any sketches, models, samples, equipment, specifications, designs, blueprints, Product technology and know–how, tools, dies, jigs, fixtures, molds, drawings, photographs and other engineering technical and manufacturing information or material supplied by Buyer or its customer and or other proprietary information submitted by Buyer to Seller or its representatives shall remain the property of Buyer and shall be treated by Seller and its representatives as confidential information. Seller shall insure and bear the risk of loss of any property of Buyer in Seller's possession. Buyer shall have the right to remove such property at any time upon termination or cancellation, with or without cause, of any Purchase Order, free of any claims by Seller for lien or otherwise against the same. Seller hereby assigns to Buyer any rights in designs, drawings and other materials that may develop or accrue in connection with supplying the Products to Buyer pursuant hereto. No Product designs, drawings or other materials furnished by Buyer, shall, without Buyer's written permission, be incorporated in or used in connection with goods furnished to others. Neither Seller nor its representatives may use or disclose such sketches, models, samples, equipment or other proprietary information submitted by Buyer to Seller or its representatives except to provide Products to Buyer. Nothing herein shall limit or negate the common or statutory law of torts or trade secrets where it provides Buyer with broader protection than that provided herein. All engineering data, design information and engineering and shop drawings used in the completion of Buyer's order are Buyer's property. Seller shall not copy, reproduce, distribute, publish or communicate such data to any third party without the written permission of a properly authorized representative of Buyer. All of Buyer's Intellectual Property Rights are and shall remain Buyer's sole property and Seller agrees not to take or permit any action contradicting Buyer's rights thereto. "Intellectual Property Rights" include, without limitation, any copyright, patent, registered or unregistered design, logo, trademark, trade dress, trade name or other designation, translation of trade name into another language, and any similar rights or applications for rights in any of the foregoing in any part of the world owned or used by Buyer or any of its affiliates, and any goodwill relating thereto. Buyer's rights shall be enforceable by injunctive relief and/or a decree of specific performance.
15. After–Sales Service
Seller agrees to provide after–sales service for the Products as may be required by Buyer from time to time. Seller shall provide such service at competitive rates and on competitive terms.
Seller shall not assign, transfer or subcontract Buyer's Purchase Order or any obligation or interest therein without the prior written consent of Buyer. Subject to the foregoing, these terms and conditions shall inure to the benefit of and bind the parties' successors and assigns.
Prices set forth on the Purchase Order shall separately state all sales, use, excise and similar taxes and all other fees or charges applicable to the Products furnished hereunder or the materials used in the manufacture thereof.
18. Governing Law
The internal laws of the State of Wisconsin shall govern the rights and liabilities of Buyer and Seller hereunder and the interpretation and enforcement of these terms and conditions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these terms and conditions or any purchases or sales hereunder. Any cause of action, claim, suit or demand by Seller allegedly arising from or related to these terms and conditions or the relationship of the parties shall be brought in a court situated in the State of Wisconsin. Both parties irrevocably admit themselves to and consent to the jurisdiction of said court and waive any argument of forum non conveniens or objection to venue.
Buyer reserves the right to correct clerical or similar errors relating to any terms and conditions of Buyer's Purchase Order. Invalidity or unenforceability of any term or condition of Buyer's Purchase Order shall not affect the validity or enforceability of the remainder of the Purchase Order. The failure of Buyer to insist, in any or more instances, upon performance of any of the terms, covenants and conditions of Buyer's Purchase Order shall not be construed as a waiver or relinquishment of any rights granted hereunder or the future performance of any such term, covenant or condition. IN NO EVENT SHALL BUYER BE LIABLE FOR CONSEQUENTIAL, INCIDENTIAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES ARISING IN RELATION TO THESE TERMS AND CONDITIONS OR THE PARTIES' RELATIONSHIP. No remedy herein provided to Buyer shall be deemed exclusive of any other remedy available to Buyer.
20. Conflict Minerals Compliance
Seller represents and warrants that none of the materials it supplies or will supply to Buyer or Buyer’s affiliates hereunder or pursuant to a purchase order issued by Buyer or its affiliate will contain any Conflict Minerals (as defined below) and that no Conflict Minerals will be used or purchased for use by Seller in a product manufactured or contracted to be manufactured by Seller hereunder or pursuant to a purchase order issued by Buyer or its affiliate where such Conflict Minerals are necessary to the functionality or production of the product manufactured or contracted to be manufactured by Seller hereunder or pursuant to a purchase order issued by Buyer or its affiliate. Seller shall ensure that each of its suppliers of materials necessary to the functionality or production of the product manufactured or contracted to be manufactured by Seller hereunder or pursuant to a purchase order issued by Buyer or its affiliate complies with the obligations contained in this paragraph. In addition, Seller agrees to provide Buyer and its affiliates with such assistance and cooperation, as is reasonably necessary, in order for Buyer and its affiliates to fully comply with the Conflict Minerals Law (as defined below). Without limiting the foregoing, the assistance and cooperation to be provided by Seller to Buyer and its affiliates pursuant to this paragraph shall include assistance and cooperation with a country-of-origin inquiry for any minerals used or purchased for use by Seller in a product manufactured or contracted to be manufactured by Seller hereunder or pursuant to a purchase order issued by Buyer or its affiliate, and producing information and documentation requested by Buyer and/or its affiliates or any third party hired by Buyer and/or its affiliates to assist with compliance with the Conflict Minerals Law. For purposes of this paragraph the following terms have the following meanings:
“Conflict Minerals” means (a) columbite-tantalite (coltan), cassiterite, gold, wolframite, or their derivatives, which include tantalum, tin and tungsten, unless the Secretary of State of the USA determines that additional derivatives are financing conflict in the Democratic Republic of the Congo or a country that shares an internationally recognized border with the Democratic Republic of the Congo (i.e. Angola, Burundi, Central African Republic, The Republic of the Congo, Rwanda, South Sudan, Tanzania, Uganda and Zambia); or (b) any other mineral or its derivatives determined by the Secretary of State of the USA to be financing conflict in the Democratic Republic of the Congo or a country that shares an internationally recognized border with the Democratic Republic of the Congo.
“Conflict Minerals Law” means Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, as it may be amended from time to time, and any regulations, rules, decisions or orders relating thereto adopted by the Securities and Exchange Commission or successor governmental agency responsible for adopting regulations relating thereto.
SMF 15 06/08/18