Standard Terms & Conditions for Acceptance of Purchase Orders (Rev. July 1, 2014)
Applicability. These Standard Terms & Conditions for Acceptance of Purchase Orders (hereafter, “Standard Terms”) shall apply to all purchase orders or other Supply Arrangements (hereafter defined) submitted by any customer (“Buyer”) of Spunfab Limited and/or its affiliates (collectively, “SPUNFAB”) regardless of the form or medium of Buyer’s purchase order, and regardless of whether SPUNFAB’s actions are deemed to be a prior offer of Buyer’s purchase order or acceptance thereof and regardless of SPUNFAB’s execution of any agreement or other instrument/document required by Buyer. If SPUNFAB is deemed to be accepting a prior offer of Buyer, such acceptance is limited to the terms contained herein. Buyer’s acceptance of any goods shipped or services provided by SPUNFAB shall constitute acceptance of these Standard Terms, regardless of any conflicting terms or waiver language contained in any Buyer purchase order, general terms & conditions, or other Supply Arrangement. Any proposal for additional or different terms or any attempt by Buyer to vary in any degree any of the Standard Terms is hereby rejected, but such proposals shall not operate as a rejection of an offer by SPUNFAB unless such variances are in the terms of the description, quantity, price or delivery schedule of the goods or services, but shall be deemed a material alteration thereof, and the offer by SPUNFAB shall be deemed accepted by Buyer without said additional or different terms.
Acceptance of Orders. All Buyer purchase orders shall be deemed accepted when SPUNFAB issues an order acknowledgment to Buyer or when SPUNFAB begins performance of the order. All orders accepted by SPUNFAB shall be governed by these Standard Terms and by any additional terms and conditions which are expressly agreed upon by authorized representatives of the parties in a fully executed Supply Arrangement. Unless otherwise agreed to in a Supply Arrangement, SPUNFAB shall have no obligation to accept any particular Buyer purchase order and these Standard Terms shall control.
Shipment/Delivery Dates. The delivery date is only an estimate of when the product will be shipped. SPUNFAB shall use reasonable efforts to meet any shipment or delivery date stated in any Buyer purchase order, but SPUNFAB assumes no liability for loss or damage (including any direct, incidental, consequential or punitive damages) due to delays or failure to meet any Buyer-specified delivery date. If SPUNFAB cannot meet such shipment or delivery date, it will promptly notify Buyer. Buyer will designate common carriers for the shipment of all products (but if Buyer fails to designate a carrier, SPUNFAB shall have the right to select a carrier on Buyer’s behalf). To the extent a quoted price for any product does not expressly include shipping; the cost thereof shall be paid directly by Buyer. SPUNFAB reserves the right to make delivery in installments (including both advance shipments and back orders). All such installments shall be separately invoiced and paid for when due, without regard to subsequent deliveries. Delivery of an installment shall not relieve Buyer of its obligation to accept remaining deliveries. SPUNFAB shall have no responsibility to ship goods to any location other than those in the United States, Canada or Mexico unless Buyer has previously secured all applicable permits and licenses for the transfer of goods.
Taxes/Duties. Applicable sales, excise, use and other taxes, and import/export duties and other charges, are in addition to any prices quoted by SPUNFAB and shall be paid by Buyer.
Price Changes. The price shall be as set forth on the Supply Arrangement and due within thirty (30) days of invoice unless otherwise specified in writing. With respect to any “open” or “blanket” purchase order of Buyer, or if any Supply Arrangement contemplates the purchase/sale of products or services beyond a 6- month period, SPUNFAB may from time-to-time increase the price of any particular product or service by an amount proportional to any increase in SPUNFAB’s labor, utility or other verifiable costs respecting such product or service. Additionally, in the event SPUNFAB’s raw material costs materially increase, SPUNFAB may pass on such increases to Buyer at any time. Prices shall be adjusted to SPUNFAB’s prices in effect at the time of shipment.
Credit/Late Payments. Any obligation of SPUNFAB to extend credit to Buyer is conditional upon Buyer’s prior application and credit approval by SPUNFAB’s credit department, timely payment of invoices, and upon the continued financial stability of Buyer. SPUNFAB reserves the right to limit, cancel or revoke credit of Buyer at any time for any reason, and SPUNFAB may require or demand payment or adequate assurances of performance from Buyer prior to performing any aspect of the sale of goods hereunder. Late payments on invoices shall bear interest at 1% per month or the highest rate allowed by applicable law, whichever is less. SPUNFAB shall be entitled to recover its costs of collection of any past due invoice, including court costs and reasonable attorneys’ fees. Buyer agrees that SPUNFAB shall have the right to obtain financial information on a quarterly basis and shall be entitled to annual tax returns.
Warranty. SPUNFAB represents and warrants to Buyer that:
1.SPUNFAB is a duly organized limited liability company, validly existing and in good standing under the laws of the State of Ohio; SPUNFAB has the power and authority to enter into this Agreement and to perform the obligations of SPUNFAB hereunder; except for matters which will not affect the performance of this Agreement by SPUNFAB, the execution, delivery and performance hereof by SPUNFAB will not conflict with or result in any violation of or constitute a default under any term of the organization documents of SPUNFAB, any other agreement to which SPUNFAB is a party, or any applicable law or governmental regulation, order or decree which applies to SPUNFAB.
2.SPUNFAB warrants that at the time of delivery the Products sold by SPUNFAB (“Products”) (1) shall be free of any security interests, liens or similar encumbrances, (2) conform to the specifications set out in Exhibit A and (3) be free from defects in materials or workmanship (the “EXCLUSIVE WARRANTY”). The EXCLUSIVE WARRANTY shall remain in effect for 60 days after the date of delivery.
THE EXCLUSIVE WARRANTY DOES NOT APPLY TO: (a) any Product that has been modified, altered or repaired or improperly transported, stored, installed, used or maintained; (b) damage caused by use of the product for purposes other than that for which it was designed; (c) damage caused by unavoidable acts of nature; or (d) damage caused by war or vandalism.
THE EXCLUSIVE WARRANTY IS THE ONLY WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, MADE BY SPUNFAB IN CONNECTION WITH THE PRODUCTS. SPUNFAB EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY AND INFRINGEMENT. SPUNFAB MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, OF ANY KIND WHATSOEVER CONCERNING THE SUITABILITY, EFFECTIVENESS, SAFETY OR PERFORMANCE OF THE PRODUCTS IN ANY PARTICULAR APPLICATION OR SITUATION OR FOR ANY PARTICULAR PURPOSE. Buyer assumes the entire risk as to the suitability, results and performance of the Products in any particular application of situation. SPUNFAB shall not be responsible for improper or incorrect use of the Products. The EXCLUSIVE WARRANTY supersedes all statements made in any other documents or oral statements made concerning the Products. No person, including without limitation, any director, office employee or agent of SPUNFAB, has any authority to make any other warranties or representations concerning the Products or any components thereof, and any such purported warranty or representation may not be relied upon.
Remedies and Liabilities. THE EXCLUSIVE REMEDY FOR ANY BREACH OF THE EXCLUSIVE WARRANTY OR CLAIM ARISING OUT OF THE SALE AND USE OF THE PRODUCTS SOLD BY SPUNFAB, WHETHER THE CLAIM IS BASED UPON THEORIES OF CONTRACT, WARRANTY, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHERWISE, SHALL BE, AT SPUNFAB’S OPTION, REPLACEMENT OF PRODUCT OR A REFUND OF THE PURCHASE PRICE OF THE PRODUCT WHICH BREACHES THE EXCLUSIVE WARRANTY. IN NO EVENT SHALL SPUNFAB BE LIABLE FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR FOR ANY LABOR OR INSTALLATION COSTS, ENGINEERING, FREIGHT, DISPOSAL CHARGES, TAXES OR OTHER COSTS IN CONNECTION WITH CLAIMS ARISING OUT OF THE SALE OR USE OF THE PRODUCTS.
UNDER NO CIRCUMSTANCES SHALL BUYER BE ENTITLED TO OBTAIN INJUNCTIVE RELIEF AGAINST SPUNFAB FOR ANY REASON WHATSOEVER.
Risk of Loss/Title. Possession and risk of loss for all goods shall pass to Buyer upon SPUNFAB’s delivery of such goods to any carrier, common or otherwise. Title to such goods shall not pass until they have been fully paid for by Buyer. Buyer shall have been deemed to have accepted the goods and services as delivered within five (5) business days of delivery unless Buyer shall notify SPUNFAB of any deficiency in writing.
Assignment. Buyer shall not assign its interest in any Supply Arrangement without SPUNFAB’s prior written consent.
Indemnity. To the maximum extent allowed by law, Buyer shall reimburse, indemnify and hold SPUNFAB and its employees and agents harmless from and against any claims, demands, liabilities, damages, suits, judgments, losses, costs and/or expenses (including attorneys’ fees and other expenses of any litigation) suffered and paid by SPUNFAB (collectively, “Losses”) that relates to or arises on account of (a) Buyer’s negligence, use, ownership, maintenance, transfer, transportation or disposal of the goods and services delivered by SPUNFAB or (b) Buyer’s violation or alleged violation of any federal, state, county or local law, rule or regulation.
1. If Buyer provides SPUNFAB with any specifications for goods or services to be furnished by SPUNFAB, Buyer shall reimburse, indemnify, defend and hold SPUNFAB harmless from and against any Losses concerning, arising out of or relating to any claimed or actual infringement of any patent, copyright, trade secret or other intellectual property rights of any third party respecting such goods or services.
2. Except with respect to any product that Buyer has specifically contracted with SPUNFAB to design or develop, (i) any product or any improvement to any product developed by SPUNFAB, and (ii) any method or process of production respecting the product or improvement thereto developed by SPUNFAB, shall be the sole property of SPUNFAB.
3. Buyer may use SPUNFAB’s trademarks only to sell new SPUNFAB products purchased by Buyer directly from SPUNFAB, and for no other reason. Buyer shall not take any or fail to take any action that may dilute SPUNFAB’s trademarks.
4. Except as expressly set forth herein, (i) SPUNFAB shall have no obligation to sell, assign, license, or transfer intellectual property of any kind to Buyer, and (ii) Buyer shall have no right to use any intellectual property of SPUNFAB without the express written consent of SPUNFAB, which may be withheld in its sole discretion. SPUNFAB may enforce this Section through injunction or otherwise.
Force Majeure. SPUNFAB shall be temporarily excused from performance under any Supply Arrangement to the extent such non-performance is caused by acts of God, war, terrorism, riot, embargoes, fire, floods or other severe weather problems, accidents or other casualty, quarantine restrictions, factory conditions, labor disputes, governmental acts, orders or regulations, delays in transportation, shortage of transport vehicles, labor or materials or other circumstances beyond the reasonable control of SPUNFAB. SPUNFAB shall use all available commercially reasonable efforts to remedy the circumstances causing the non-performance, or shall take steps to work around such circumstances. Promptly after the circumstances causing the non-performance are remedied, SPUNFAB shall resume performing.
Termination. Unless otherwise agreed to in a fully executed Supply Arrangement, SPUNFAB may terminate any Supply Arrangement, including open or continuing purchase orders: (i) on reasonable ten- day notice to Buyer, for any or no reason, or (ii) immediately, if Buyer fails to timely pay for goods delivered or services rendered, breaches any of its other obligations under any Supply Arrangement, violates or refuses to abide by or acknowledge these Standard Terms, or threatens any of the foregoing. Buyer has no right to terminate for convenience. Buyer may only terminate for SPUNFAB’s material breach if SPUNFAB, after written notice, fails to cure within 30 days of receipt of such notice. Any termination by Buyer must be in writing. In the event of a termination by Buyer or SPUNFAB for any
reason other than a material breach by SPUNFAB that SPUNFAB fails to cure, Buyer shall pay SPUNFAB termination charges consisting of all of SPUNFAB’s costs and expenses incurred in connection with SPUNFAB’s performance (including without limitation labor, material and overhead), all costs and expenses incurred as a result of termination, any of SPUNFAB’s other incidental damages and SPUNFAB’s expectation damages. Regarding any breach by Buyer hereunder, SPUNFAB reserves all rights and remedies available hereunder.
Miscellaneous. Notwithstanding any Buyer purchase order or Buyer standard terms and conditions to the contrary:
1. Buyer shall have no right to (i) inspect SPUNFAB’s facilities, (ii) examine SPUNFAB’s books, records or other documents, or (iii) seek or obtain any information from SPUNFAB deemed proprietary or confidential by SPUNFAB in its sole discretion, without the express written consent of SPUNFAB obtained in each instance, which consent may be withheld in SPUNFAB’s sole discretion.
2. SPUNFAB shall have no obligation to sell or otherwise transfer any raw materials, work-in- progress, tools, dies, jigs, fixtures, molds, patterns, templates, models, mock-ups, gauges, drawings, equipment/machinery or other means of production to Buyer except where the same was specifically designed, developed and/or purchased by SPUNFAB solely for Buyer’s account under a bona fide Supply Arrangement and has been fully paid for by Buyer.
3. While SPUNFAB shall reasonably maintain all tooling owned by Buyer in SPUNFAB’s possession, SPUNFAB shall have no liability for the damage or loss of any tooling, equipment or other property unless such damage or loss arises out of the negligence of SPUNFAB.
4. SPUNFAB shall have no obligation to comply with any agreements between Buyer and any third party unless SPUNFAB is furnished a written copy of such agreement and expressly agrees to so comply in a signed writing after SPUNFAB’s receipt of such copy.
5. SPUNFAB shall not be required to obtain any property, liability or other type of insurance for its own account or for the account of Buyer or its property.
6. SPUNFAB shall not be required to arbitrate any claim against Buyer or Buyer’s customers or agents, or bring or defend any such claim in any particular forum.
7. Buyer shall have no right to dictate personnel changes in SPUNFAB’s workforce, or to mandate labor union relations, affiliations or other changes to SPUNFAB’s workforce management or labor relation policies.
8. SPUNFAB shall have the right to manufacture any product for Buyer in any of its facilities without Buyer’s prior approval or consent.
9. Buyer shall have no right to notice of any sale of stock or assets of SPUNFAB so long as the same occurs in the ordinary course of SPUNFAB’s business. In addition, no sale of SPUNFAB’s stock or assets shall give rise to any Buyer right of termination of any Supply Arrangement with SPUNFAB.
10. SPUNFAB’s alleged or actual default with respect to any particular Supply Arrangement shall have no effect on Buyer’s obligation to perform under any other Supply Arrangement between Buyer and SPUNFAB, nor shall Buyer have any right of setoff against SPUNFAB with respect to any such other Supply Arrangements.
11. In the event of any formal dispute resolution proceeding between the parties, the prevailing party shall be entitled to recover its reasonable attorney’s fees and other expenses of dispute resolution, such as arbitrator fees, case filing fees, costs of transcription and expert witness fees.
12. The substantive laws of the State of Ohio shall apply to all dealings and transactions between Buyer and SPUNFAB.
Conflict of Terms. These Standard Terms supersede any prior purchase orders, supply agreements, nomination letters, proposals, quotations, requisitions, oral statements and/or representations, Buyer standard terms and conditions, correspondence or similar matters (collectively, “Supply Arrangements”) between the parties or their representatives. Any conflict between these Standard Terms and other Supply Arrangements shall be resolved in favor of these Standard Terms. Buyer’s acceptance of any goods shipped or services provided by SPUNFAB shall constitute acceptance of these Standard Terms. If at any time (i) Buyer claims or asserts that these Standard Terms are not applicable to any Supply Arrangement between SPUNFAB and Buyer, or (ii) a determination is made by a court, arbitration panel or other legal authority that these Standard Terms do not apply to any Supply Arrangement between the parties, SPUNFAB shall have the right to immediately terminate such Supply Arrangement without liability
or further obligation to Buyer. However, the failure or refusal of SPUNFAB to so terminate any Supply Arrangement shall not constitute or be deemed a waiver by SPUNFAB of the effectiveness or enforceability of these Standard Terms. SPUNFAB reserves the right to amend these Standard terms from time to time.
Waiver. Either party hereto may waive any requirement, condition or obligation to be performed by the other party, provided any such waiver is in writing and executed by the party waiving the requirement, condition or obligation and shall be specifically designated as a waiver hereunder with reference to the applicable section. A waiver by a party of any breach of any term, covenant, or condition contained herein to be performed by a party, or the delay, forbearance, indulgence or failure of a party in exercising any right hereunder on account of such breach, or the partial exercise of such right, shall not be deemed a waiver of any subsequent breach of the same term or any other term, covenant or condition hereof.
Severability. If any provision of this Agreement or any related document or instrument is held to be illegal, invalid or unenforceable under present or future laws, such provision shall be either reformed by a court of competent jurisdiction to reflect the intent of the parties, or deleted from the Agreement by the court, whichever course of action in the opinion of the court would best reflect the intent of the parties, taking into consideration all provisions of this Agreement. If a provision is deleted, the remaining provisions hereof shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by severance here from.
Waiver of Jury Trial. BUYER AND SPUNFAB ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. EACH OF THE BUYER AND SPUNFAB, AFTER CONSULTING (OR HAVING THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF ITS CHOICE, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR OTHER LEGAL PROCEEDING ARISING OUT OF OR RELATING TO ANY OTHER DOCUMENT PERTAINING TO ANY ORDER.
Jurisdiction and Venue. The parties hereby agree that all actions or proceedings arising directly or indirectly, from this Agreement shall be litigated in courts having a situs within the state of Ohio, county of Summit and the parties hereby consent and agree to such courts having exclusive jurisdiction of such litigation
Statute of Limitations. Any action resulting from any breach on the part of SPUNFAB as to the goods or services delivered hereunder must be commenced within one year after the cause of action has accrued.