Conditions for Purchasing
1. Parties: Items. ANGELL-DEMMEL NORTH AMERICA, Ltd. will be referred to as “Purchaser” and the Vendor indicated on the front hereof will be referred to as “Seller”. All products or work covered by this order will be referred to as “Items”.
2. Price. In no event is this order to be filled at higher prices than specified on the order without the written consent of Purchaser. Seller’s price will be the lowest prevailing market price. Purchaser shall have the right to return the Items, with Seller paying the cost of transportation, if Seller charges Purchaser a price in excess of the lowest prevailing market price at which Seller is selling such Items. Except as otherwise provided in this order, the price includes all applicable federal, state, and local taxes. No boxing or crating expenses shall be charged without the written consent of Purchaser.
3. Delivery. Method and route of shipping shall be in accordance with Purchaser’s instructions. In the event Seller fails to deliver as and when specified or if at any time Purchaser reasonably believes that delivery as and when specified will not be met, Purchaser reserves the right to cancel all or any part of the order, without prejudice to its other rights, and Purchaser may return, with Seller paying the cost of transportation, part or all of any shipment so made. Time is of the essence of this purchase order.
4. Title and Risk; Shipment. Title and risk of loss with respect to the Items remain in Seller until the Items in a completed state have been delivered to and accepted by Purchaser or an agent or consignee duly designated by Purchaser at the location specified on the front hereof. Items which are to be shipped shall be shipped F.O.B. destination, unless otherwise specified by Purchaser.
5. Compliance with Laws. Seller warrants that the Items and their production, completion and delivery shall not violate or cause Purchaser to be in violation of any federal, state or local laws, regulations or orders. Without limiting the foregoing, Seller certifies that the Items will be produced in compliance with Section 12 and all applicable requirements of and regulations under the Fair Labor Standards Act, the Occupational Safety and Health Act of 1970 and the Toxic Substances Control Act.
6. Equal Employment Opportunity and Other Non-Discrimination Clauses. This clause applies only in the event the Items ordered are to be used in whole or in part for the performance of government contracts and where the dollar value of said Items exceeds, or may in any one year exceed, $10,000:
The provisions of the Equal Opportunity Clause, as promulgated by Executive Order 11246 dated September 24, 1965, as amended, are incorporated herein by reference.
It is hereby agreed that, if applicable under the transaction herein stated, the provisions of the following affirmative action clauses are hereby incorporated by reference into the terms and conditions hereof 41 C.F.R. §60-250.4 relating to the Vietnam Era Veterans Readjustment Assistance Act of 1974: 41 C.F.R. §60-741.4 relating to the Rehabilitation Act of 1973: and 41 C.F.R. §1-1.1310-2 relating to the Utilization of Minority Business Enterprises.
7. Changes. Purchaser shall have the right to make changes (including additions and omissions) at any time in the items, their specifications, drawings, designs, packing instructions or destination, or to postpone the delivery schedule. Immediately upon such changes being ordered, the parties shall undertake to agree in writing, on an appropriate adjustment on price and or on other terms of this purchase order.
8. Inspection. Purchaser may inspect the Items at any reasonable time and shall have the right to inspect such Items at the time of their delivery and or completion. Items furnished hereunder may at any time be rejected for defects or defaults revealed by inspection, analysis, or by manufacturing operations or use after delivery even though such Items may have previously been inspected and accepted. Such rejected Items may be returned to Seller for full refund to Purchaser, including shipping and transportation charges. Purchaser, at its option, may require Seller to inspect and remove and replace Items found defective by Purchaser with Items that comply with this order. If Seller fails to promptly make the necessary inspection, removal and replacement, Purchaser may perform the necessary inspection and sorting of Items at Seller’s expense.
9. Warranty by Seller. Seller warrants all items delivered hereunder to be free from defects in material or workmanship, to be of good and merchantable quality to conform strictly to any material requirements, specifications, drawings, or samples which may have been provided to or furnished by purchaser, and to fit the purposes for which the items are intended. Seller further warrants that it will have good title to the items free and clear of all lens and encumbrances and will transfer such as title to purchaser. This warranty shall survive any inspection, delivery, acceptance or payment by purchaser.
10. Indemnification. Seller shall indemnify and hold harmless Purchaser, its agents, consignees, employees and representatives from and against all expenses, losses, claims, demands or causes of action of whatever kind, including negligence, breach of express or implied warranty, failure to warn, or sinci liability, and from and against all special, indirect, incidental, or consequential damages, including lost profits, of every kind whatsoever arising out of by reason of or in any way connected with, accidents, occurrences, injuries or losses to or of any person or property, including Purchaser or Purchaser’s property, which may occur before or after acceptance of the completed Items by Purchaser, in any way due or resulting from in whole or in part, the design, preparation, manufacture, construction, completion, warning or failure to warn, delivery or non-delivery of Items, including such as are caused by any subcontractor of Seller.
Immediately upon receipt from Purchaser of written notice of any suit or claim relating to any risk described in the first paragraph of this section and upon written request by Purchaser, Seller shall assume the defense of the litigation. In any event, Seller shall pay for or reimburse Purchaser for all costs and expenses, including attorneys’ fees, arising out of any suit or claim relating to any risk described in the first paragraph of this Section 10.
11. Contingencies. In the event of causes beyond the control of Purchaser, including but not limited to acts of God, fire, the elements, strikes or labor disputes, and accidents or transportation difficulties which would make it unreasonable in Purchaser’s judgment to accept delivery hereunder. Purchaser shall have the option to cancel this purchase order or to delay the delivery or completion of all or part of the Items without cost to Purchaser.
12. Patent Infringement. Seller shall indemnify Purchaser against and hold Purchaser harmless from any and all claims for infringement of any patent, by reason of the manufacturer, use, or sale of the Items. Seller shall indemnify Purchaser for any costs, expenses, liability and damages, including attorneys’ fees, which Purchaser may incur by reason of any suit or claim of any alleged infringement immediately upon receipt from Purchaser of written notice of any such suit or claim. Seller shall appear in and assume the defense of the litigation if purchaser shall so request.
13. Purchaser’s Materials, Specifications, Technical Data. Any materials, (including materials used in the manufacture of items), specifications, drawings, notes, or technical data of Purchaser furnished to Seller or referred to in this order shall be deemed to be incorporated herein by reference Purchaser shall retain title to all such materials and documents and Seller shall not deliver or disclose such to any party other than a party duly authorized by Purchaser. Upon Purchaser’s requests, Seller shall promptly return to Purchaser all such materials and documents and copies thereof. All materials furnished by Purchaser and not used in the manufacture of the Items shall be returned to Purchaser at Purchaser’s expense. All materials not used or returned shall be paid for by Seller. Seller shall provide for fire and extended coverage insurance for all such materials and documents.
14. Information. Seller agrees to furnish promptly to Purchaser, upon request, a list of the names and amounts of all ingredients and components in Items purchased and Seller shall advise Purchaser of changes, if any, in such Items. Knowledge or information, or any nature whatsoever disclosed by Seller to Purchaser shall not, unless specifically agreed to in writing by Purchaser, be deemed to be confidential or proprietary information, and shall be acquired by Purchaser free from any restrictions as part consideration for this order.
15. Work on the Premises. If work is to be performed hereunder on premises of Purchaser, Seller represents that it has or will examine the premises and any specifications or other documents furnished in connection with the Items and satisfy itself as to the condition of the premises and site. Seller agrees that no allowance shall be made in respect of any error as to any of the foregoing on the part of Seller. Seller shall at all times keep the premises free from accumulations of waste material or rubbish. At the completion of the Items, Seller shall leave the premises and the items broom-clean.
Seller shall abide by all applicable federal, state, and local safety laws, and all plant safety regulations of Purchaser on Performing any work in connection with the Items on the premises of Purchaser and shall indemnify and hold Purchaser harmless from any loss, damage, claim, or legal action resulting from Seller’s performance of work on the premises. Seller understands that Purchaser shall have no duty to maintain insurance against any loss or damage to any materials or equipment of Seller used by Seller in connection with the performance of work on Purchaser’s premises, nor shall Purchaser have any duty to maintain insurance against any accidents or injuries to persons resulting from Seller’s performance of work on the premises.
16. Termination. Purchaser shall have the right to terminate this order upon the occurrence of any of the following events: Seller’s insolvency or actions indicating insolvency such as the filing of a petition by or against Seller under any chapter of the bankruptcy laws, the appointment of a receiver for Seller or Seller’s attempt to make a general assignment for the benefit of creditors: Seller’s failure to use properly skilled personnel: Sellers failure to make prompt payment to any subcontractors it may have: Seller’s failure to make prompt payment for any materials, labor, or any other expenses it incurs in the production or construction of the Items: or Seller’s failure to comply with any of its obligations under this order. Upon termination of the order in accordance with this section, Purchaser may take possession of the Items in whatever stage of completion they may be, contract with or employ any other person or persons to finish the Items, and collect from Seller any additional expenses or damages, including attorney’s fees, which Purchaser may suffer.
17. Limitation on Assignment. Neither party may assign this order or any right hereunder without the prior written consent of the other except that Purchaser shall have the right to assign to any company with which it is affiliated, or to any corporation into which it shall be merged, with which it shall be consolidated, or by which it, or all or substantially all of its assets, shall be acquired
18. Purchaser’s Rights or Remedies. Any rights or remedies granted to Purchaser in any part of this order shall not be exclusive of, but shall be in addition to, any other rights or remedy granted under this order, at law or in equity Purchaser may at any time insist upon strict compliance with these terms and conditions, notwithstanding any previous custom, practice or course of dealing to the contrary.
19. Entire Agreement. This document shall be deemed to contain the entire agreement between Purchaser and Seller and to constitute the complete and exclusive expression of the terms of the agreement. In the event of a written request by Seller for additional or contrary terms or conditions such modification may only be made in these terms and conditions by a written instrument signed by one of Purchaser’s officers or authorized representatives.
20. Severability. In the event that any words, phrase, clause: sentence, or other provision hereof shall violate any applicable statute, ordinance or rule of law in any jurisdiction in which it is used, such provision shall be ineffective to the extent of such violation without invalidating any other provision hereof.
21. Governing Law. This document and the purchase of any Items hereunder shall be governed by and construed in accordance with the laws of the State of Ohio.
22. Arbitration. If any dispute occurs between the parties arising out of or related to this Agreement, the dispute shall be settled by arbitration in Dayton, Ohio under the then current rules of the American Arbitration Association. The decision and award of the arbitrator shall be final and binding and the award so rendered may be entered in any court having jurisdiction thereof.