NILCO, LLC STANDARD TERMS AND CONDITIONS OF PURCHASE
1. ACCEPTANCE: The acceptance of this purchase order (“Order”), by acknowledgement or shipment of goods or performance of services, shall constitute acceptance of the conditions set forth below and on the face of this Order. No purported acceptance of this Order on terms and conditions which modify, supersede or otherwise offer the terms and conditions hereof shall be binding upon Buyer. Any shipment of goods or performance of services by Seller shall be deemed to be only upon line terms and conditions contained herein, except to the extent that an authorized purchasing representative of Buyer may expressly consent in writing to such modifications or alterations, not withstanding Buyers payment for any shipment of goods.
2. DELIVERY: Delivery shall be made by Seller at such times and places and such items and quantities as may from time to time be specified by Buyer on the face of the Order. If no date is specified then delivery shall be within a reasonable time following receipt of Order. All items to be delivered hereunder shall be at Seller’s expense be packed and packaged to insure safe arrival at their destination to secure the lowest transportation costs and to comply with the requirements of common carriers. Each container and accompanying packing list must show this Order number. If Seller fails to meet its schedule delivery dates and Buyer elects to call for expedited shipments, Seller will pay the difference between the methods of shipping specified and the actual expedited rate incurred. Seller shall be responsible for any additional charges resulting from deviation from Buyers routing instructions. If Seller fails to make delivery promptly and regularly, as required hereunder, Buyer may, in addition to other remedies at law without any liability whatsoever, terminate this Order by giving notice to Seller. Any delivery more than 5 business days late will not be considered a prompt delivery, except as Buyer shall advise in writing. Title and risk of loss shall remain in Seller until goods are delivered to the F.O.B. destination point specified in this Order. Notwithstanding such delivery, Seller shall bear risk of loss or damage to goods purchased hereunder from the date that Buyer gives notice of rejection of goods pursuant to the inspection provisions of this Order. Seller must inform Buyer immediately in writing as to any anticipated delays in deliveries and the proposed reschedule delivery dates.
3. INSPECTION: Buyer shall have the right to inspect and test the goods supplied hereunder upon or after delivery and at any time during the manufacture or fabrication thereof at Seller’s facilities or elsewhere. Such inspection shall include, without limitation, raw materials, components, work in process and completed products as well as drawings, specifications and related data. Final inspection, testing and acceptance shall be after delivery to the delivery point designated by Buyer. It any inspection or test is made by Buyer at Seller’s facility or elsewhere, Seller shall provide reasonable facilities and assistance for the inspection personnel. Buyer may reject all goods and services supplied hereunder which are found to be defective. Without prejudice to any right to damages for such breach, Buyer at it’s election shall have the following remedies: (1) rejected goods may be returned to Seller at Seller’s expense and Buyer shall receive full credit of the entire Order price; or (2) at Buyer’s request, Seller shall repair or replace defective goods or re-perform defective services at Seller’s expense: or (3) Buyer may consider this Order breached as to the rejected quantity and cancelled as to any unfilled portion of the Order and may hold Seller fully liable therefore; (4) or Buyer may retain and rework the detective goods at Seller’s expense, which rework shall not invalidate Seller’s warranty in, the event that rejections of goods exceed a normal percentage of the total inspected. Buyer shall have the right to conduct such other inspections as Buyer deems necessary, all at Seller’s expense. Failure to inspect goods, failure to discover defects in goods, or payment for goods shall not constitute acceptance or limit any of Buyer’s rights, including without limitation those under the warranty provisions of this Order.
4. OVERSHIPMENTS: Goods shall not be supplied in excess of quantities and shipping tolerances, without the approval of Buyer. Seller shall be responsible for handling charges and return shipment costs for any excess quantities in the event Buyer elects to return them.
5. PRICES: Prices are set forth on the face of this Order and, unless otherwise specified; are F.O.B. destination. All federal, state or local taxes of any nature which are billed to Buyer shall be separately stated In Seller’s invoices, Any and all tax exemption certificates shall be accepted by Seller, unless otherwise specified, no charge will be allowed for packaging, crating, drayage or storage.
6. PAYMENT: Seller shall be paid upon submission of properly prepared invoices for materials and supplies delivered to and accepted by Buyer. Invoices are to be delivered to Buyer within thirty (30) days of delivery of goods or services to Buyer’s Accounting Department. Payment terms are specified on the face of the Order, in the absence thereof, Buyer shall pay all properly invoiced amounts due to Seller within sixty (60) days after receipt of such invoice, except for any amounts disputed by Buyer. Any adjustments in Seller’s invoice due to shortages, late delivery, rejection or other failure to comply with the provisions of this Order; or for other set offs to which Buyer is entitled, may be made by Buyer before payment. Errors in the invoices shall be considered just cause for withholding payment without prejudice. No charges will be honored unless specified on the face of this Order. Invoices must by accompanied by transportation receipt, if transportation is payable as a separate item. Upon Seller receipt of amounts properly invoiced, Seller waives and releases all rights to, for itself and its subcontractors, and at its sole cost shall obtain prompt removal of any lien fixed against Buyer for goods delivered or services performed under this Order.
7. WARRANTY: Seller warrants that all goods and services furnished hereunder will be free from defects in design, material, and workmanship; will conform to applicable specifications drawings and all other requirements of this Order will be fit and sufficient for the purpose intended; and will be of merchantable quality, when shipped shall be free from all liens, security interests and encumbrances of any type whatsoever; and shall be manufactured, produced, labeled, furnished and delivered to Buyer in full and complete compliance with all applicable laws and regulations. This warranty shall not be deemed to be exclusive, shall run to Buyer, its’ successors and assigns, and to Buyers customers, and shall survive inspection, testing and acceptance by Buyer. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Buyer’s discovery of the noncompliance. If Buyer gives Seller notice of noncompliance, Seller shall, at its own cost and expense, promptly replace or repair the nonconforming goods or services.
8. SELLER’S TRADEMARKS: Seller hereby grants to Buyer a non-exclusive, royalty-free right and license to use Seller’s trademarks and logos in Buyer’s advertising and promotional materials to represent that Buyer uses, sells, and distributes Seller’s goods.
9. COMPLIANCE WITH LAWS AND REGULATIONS: Seller warrants and represents to Buyer that it is in compliance with and shall remain in compliance during performance of this Order and ensure that its employees, agents, contractors and subcontractors comply with all applicable laws, regulations and ordinances, including, without limitation the Robinson Patman Act, the Fair Labor Standards Act of 1938 as amended by Executive Order No. 11246 (Equal Employment Opportunity), Executive Order No. 11458 and 11625 (Utilization of Minority Business Enterprises), Executive Order No. 11701 (Listing of Job Openings for Disabled Veterans and Veterans of the Vietnam Era), Executive Order No. 11758 (Employment of the Handicapped), 41 CFR 60-741.5(a) prohibiting discrimination against qualified individuals on the basis of disability, and requiring affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified individuals with disabilities, the Hazardous Materials Transportation Act of 1975, the Federal Hazardous Substances Act, the Federal Poison Prevention Packaging Act of 1970, the Occupational Safety and Health Act of 1970, the Toxic Substances Control Act, Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, 41 CFR 60-741.5(a) prohibiting discrimination against qualified individuals on the basis of disability, and requiring affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified individuals with disabilities, and all rules, regulations, standards and rulings promulgated or issued thereunder, as from time to time amended, modified and/or superseded. If this is a federal government subcontract valued over $10,000, 29 CFR part 471, appendix A to subpart A is incorporated by reference. Seller agrees to indemnify Buyer against any loss, cost damage or liability by reason of Sellers violation of this Section.
10. DEFAULT: Buyer may without any liability whatsoever terminate the whole or any part of this Order in the following circumstances: (i) if Seller fails to deliver the goods or services required by this Order within the time specified herein, or any extension thereof granted by Buyer in writing, or (ii) if Seller fails to perform any of the other provisions of this Order, and in either of these circumstances does not cure such failure within a period of ten (10) days after receipt of notice from Buyer. If at any time Seller, in Buyer’s judgment, is failing to make sufficient progress so as to endanger performance of this Order with its terms or Buyer otherwise has reasonable grounds for insecurity with respect to Seller’s performance under this Order, Buyer shall have the right to so notify Seller and request adequate assurance of due performance. Failure of Seller to furnish the requested assurances within ten (10) days after receipt of written notification and request therefore, shall constitute grounds for termination of this Order, in whole or in part, without further notice of Sellers breach. In any of the foregoing events, and in addition to other rights of Buyer, Buyer may require Seller to transfer title and delivery to Buyer in the manner and to the extent directed by Buyer (i) any completed goods and (ii) such partially completed goods and materials, parts, tools, jigs, fixtures, plans, drawings, information and contract rights (“Manufacturing Material”) as Seller has produced or acquired for the performance of this Order, including the assignment to Buyer of Sellers subcontracts if directed to do so by Buyer, and Seller shall upon direction of Buyer, protect and preserve any property in possession of Seller in which Buyer has an interest. Payment for completed products and services delivered to and accepted by Buyer shall be at the Order price. Payment for Manufacturing Material delivered to and accepted by Buyer and for the protection and preservation of property shall be at the price equivalent to Sellers actual cost. Seller’s actual cost shall not be entitled to profit on work partially completed. In the event of such termination, Buyer shall have the right to procure on such terms and in such manner as Buyer may deem appropriate, supplies or services similar to those terminated and to recover from Seller the excess cost for such similar supplies or services. Buyer may withhold from Seller amounts otherwise due to Seller to complete products of Manufacturing Materials in such sums as Buyer determines as necessary to protect Buyer against loss because of outstanding liens or claims against said items, or offset any said amounts against excess costs of procurement. The rights and remedies provided to Buyer herein, shall not be exclusive but are cumulative and in addition to any other rights or remedies provided by law or otherwise under this Order.
11. INDEMNIFICATION: Seller shall defend, indemnify, and hold harmless Buyer, its distributors and customers and their respective parent company, subsidiaries, affiliates, successors or assigns and its respective directors, officers, shareholders, and employees (collectively, "Indemnitees") against any and all loss, injury, death, damage, liability, claim, action, judgment, interest, penalty, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder (collectively, "Losses") arising out of or occurring in connection with the use, sale, distribution, disposal of Seller's goods and services, and (b) any actual or alleged infringement of any patent, copyright, or trade secret arising out of the manufacture, use, sale, delivery or disposal of goods furnished or services rendered under this Agreement or any Order. Buyer shall notify Seller as soon as practicable, of any claim of infringement received by Buyer. Seller shall not enter into any settlement without Buyer’s or Indemnitee's prior written consent. Seller’s duties hereunder shall survive cancellation or termination of this Order.
12. INSURANCE: Seller shall, at its own expense, maintain, and carry insurance in full force and effect with financially sound and reputable insurers, which includes: (a) commercial general liability (including product liability) in a sum no less than $1,000,000 for each occurrence and $2,000,000 in the aggregate; (b) workers’ compensation insurance in compliance with the applicable laws of each jurisdiction affected by the Order; (c) if the Seller will use or provide for use of motor vehicles in providing and/or performing the Order, automobile (motor vehicle) insurance covering all liabilities for personal injury and property damage arising from the use of such vehicles, with limits of no less than $1,000,000. Upon Buyer’s request, Seller shall provide Buyer with a certificate of insurance evidencing the coverage specified in this Order and naming NILCO, LLC and its affiliates as an Additional Insured on its General Liability Policy and on a Broad Form Vendors Endorsement to any and all Products Liability Policies. Seller must include a 30 day Notice of Cancellation or Non-Renewal for all related Insurance Policies except for Non-payment of Premium which shall be not less than 10 days’ Notice of Cancellation. Seller agrees to waiver of subrogation in favor of Buyer for any all claims that are tendered to Seller for defense under this agreement. Failure of Seller to provide Buyer with Certificate of Insurance and Additional Insured Endorsement make Seller the insurer.
13. BANKRUPTCY: In the event any bankruptcy, assignment or insolvency proceedings are commenced by or against Seller, or in the event of the appointment of any assignee for the benefit of creditors or of a receiver of Seller of its properties, or in the event that Buyer has reasonable cause to believe the Seller is financially unable to fulfill Seller’s obligation hereunder, Buyer, at its option shall be entitled to cancel any unfilled portion of this Order without any liability whatsoever.
14. CHANGES: Buyer shall have the right to make changes within the general scope of this Order including, without limitation, to packing, destinations, specifications, quantity and delivery schedule. No such change will be made without the written authorization of Buyers authorized representative. If any such change causes an increase or decrease in the cost of or the time required for performance of this Order, an equitable adjustment shall be made in the Order price or delivery or both, and the Order shall be modified in writing accordingly.
15. STOP WORK ORDER: Buyer may at any time by written notice to Seller require Seller to stop all or any part of the work called for by this Order for a period of up to ninety (90) days after the notice is delivered to Seller (“Stop Work Order”). Upon receipt of the Stop Work Order, Seller shall forthwith comply with its terms and take all reasonable steps to minimize to incurrence of costs allocable to the work covered by the Order during the period of work stoppage. Within a period of ninety (90) days after the Stop Work Order is delivered to Seller, or within any extension of that period to which the parties shall have agreed. Buyer shall either cancel the Stop Work Order, or terminate the work covered as provided in the “Default” or the “Termination for Convenience” sections of this Order, whichever may be appropriate. Seller shall resume work upon cancellation of any Stop Work Order. An equitable adjustment shall be made in the delivery schedule or prices hereunder, or both, and this Order shall be modified in writing accordingly, if the Stop Work Order results in an increase in the time required for the performance of this Order or in Seller’s cost properly allocable thereto.
16. TERMINATION FOR CONVENIENCE: Buyer may at any time by written notice terminate all or any part of this Order for Buyer’s convenience. If an Order for services is terminated, in whole or in part, for Buyers convenience, Seller shall be paid an amount, to be mutually agreed upon, which shall be adequate to cover the reasonable costs of Seller’s actual performance of work under the Order to the effective date of termination; provided that no amount shall be paid to Seller for (1) any anticipatory profits related to work Order under this Order not yet performed; or (2) costs incurred due to Seller’s failure to terminate work as Ordered on the effective date of termination. In no event shall the total amount under this provision exceed the prices set forth on this Order for the work terminated. Buyer may cancel any Order for goods at any time and without any obligation to make payment until 24 hours prior to the later of (i) the actual ship date and (ii) the expected ship date specified on the Order.
17. TOOLING AND DATA: All drawings and specifications and all materials, including tools, special dies and patterns, furnished or paid for by Buyer shall be the property of Buyer, shall be subject to removal at any time without additional cost upon demand by Buyer, shall be used only in filling Orders from Buyer and shall be kept separate from other drawings, specification and materials, and identified as the property of Buyer. When Buyer has supplied blueprints or specification receipt by Seller of written or oral approval of samples which may not conform in all respects to Buyer’s blueprint shall not be deemed a waiver by Buyer of the specification unless specifically waived by Buyer in writing. The information contained in reports, drawings, documents or other records which are accessible by Seller or furnished to Seller by Buyer to this Order, to the extent that such information is not in public domain, shall not be disclosed to others, except to subcontractors as necessary for completion of this Order. In which event the subcontractor shall have the same obligation of nondisclosure. Seller assumes all risk and liability for loss or damage to Buyers property, except for normal wear and tear. Seller shall supply to Buyer statements of inventory upon request of Buyer. Upon completion, termination or cancellation of this Order, Seller shall return all drawings, specification, copies thereof and material to Buyer. In the event Buyer requests return of any such items, written thirty (30) days after the effective date of completion, termination or cancellation. Any such property of Buyer retained by Seller shall remain sublet to the foregoing restrictions on use, reproduction and disclosure. Buyer may at any time, reimburse Seller for the cost of part or all special too long paid for by the Seller and upon payment therefore, shall become the owners thereof, entitled to possession at the completion of this Order, or at such date as the parties may agree. Upon termination of this Order, either for cause or convenience, Buyer may, at Buyers option, use on a non-exclusive basis, all drawings, documents or other records related this Order whether created by Buyer or Seller without further compensation to Seller. Seller may not disclose the existence of the Order or the terms to be supplied hereunder without Buyer’s written consent, except to subcontractors who shall have the same responsibility.
18. APPLICABLE LAW: This Order shall be governed by and construed in accordance with the laws of the State of Ohio, excluding its choice of law rules. Jurisdiction and venue for any suit between the parties hereto arising out of or connected with this Order or the goods and services furnished hereunder, shall lie only in Ohio. Pending resolution of any disputes hereunder, Seller shall proceed diligently with the performance of this Order and in accordance with Buyer’s direction.
19. ASSIGNMENT AND SUBCONTRACTORS: Seller shall not assign this Order or any contract resulting from this Order or any portion thereof or any account receivable resulting therefrom, nor shall Seller subcontract for completed or substantially completed goods or services purchased hereunder, without the prior express written consent of Buyer. Seller is responsible for the performance or non-performance of any subcontractor and will indemnify, defend and hold Buyer harmless from and against all claims, actions, losses, damages, costs and expenses (including reasonable attorneys’ fees) arising from any subcontractor’s acts or omissions.
20. NOTICES: All notices required or permitted to be given hereunder shall be deemed to be properly given if delivered in writing personally or sent by United States certified or registered mail addressed to Seller or Buyer, as the case may be at the addresses set forth on the face of this Order, with postage thereon fully prepaid. The effective time of notice shall be at the time of the mailing or personal delivery.
21. WAlVER: No waiver by Buyer of any breach of this Order or of the granting of an extension for performance hereunder shall be deemed to be a waiver of any other or subsequent breach.
22. ENTIRE AGREEMENT: This Order contains the entire agreement between Buyer and Seller with respect to the goods or services specified therein and there are no other understandings verbal or written with respect thereto. No modification to this Order will be binding upon Buyer unless made in writing and signed by an authorized representative of Buyer.