TERMS AND CONDITIONS
1. Sale. BUYER'S PURCHASE AND ACCEPTANCE OF SUPPLIER’S GOODS IS CONDITIONED ON THE TERMS AND CONDITIONS SET FORTH HEREIN AND AS MAY BE SET FORTH WITHIN A PRODUCT SUPPLY AGREEMENT BY AND BETWEEN THE PARTIES. NO ADDITIONAL OR DIFFERENT TERMS OFFERED BY SUPPLIER SHALL BE OR SHALL BECOME PART OF THIS ORDER, AND ANY SUCH TERMS ARE HEREBY REJECTED. THE TERMS AND CONDITIONS AS STATED HEREIN SHALL NOT BE MODIFIED WITHOUT THE EXPRESS WRITTEN APPROVAL OF BUYER. FAILURE OF SUPPLIER TO IMMEDIATELY OBJECT TO THESE TERMS AND CONDITIONS IN WRITING SHALL BE DEEMED ACCEPTANCE HEREOF AND SHALL CONSTITUTE A WAIVER OF ANY PRIOR OR SUBSEQUENT TERMS OR CONDITIONS REQUESTED BY SUPPLIER. IF THE PARTIES DO NOT ENTER INTO A PRODUCT SUPPLY AGREEMENT, THE TERMS AND CONDITIONS HEREIN SHALL ALONE GOVERN THE PURCHASE AND ACCEPTANCE OF THE GOODS.
2. Order. Written purchase orders are submitted for acceptance within three (3) days from the date of issuance, or within such other period as may be specified in the purchase order (“Order”). An Order shall be a contract between Supplier and Buyer when it has been accepted by Supplier.
3. Prices. All prices for goods shall be set forth upon the Order.
4. Payment. Terms of payment are as specified on the Order. If not specified, the net amount shall be due 30 days following the date of invoice.
5. Freight. Shipping shall be FOB Supplier’s dock. Buyer shall have the right to designate the freight carrier.
6. Warranty. Without limiting the representations or warranties applied by law or otherwise provided by Supplier, Supplier warrants that the goods shall be: (a) free from defect; (b) fit for their intended purpose or application; and (c) manufactured and supplied strictly in accordance with the relevant specification of the goods and/or equipment into which the goods are incorporated. Supplier shall pass through any applicable manufacturer’s warranty for the benefit of Buyer. The warranty for goods commences on the latter of the day Buyer takes physical possession of the goods or the date the goods have been installed by Buyer and is valid for the longer of twelve months or the length of Supplier’s or the manufacturer’s standard warranty period. The warranty for goods replaced or repaired by Supplier likewise commences on the latter of the day Buyer takes physical possession of the goods or the date the goods have been installed and is valid for the longer of twelve months or the length of Supplier’s or the manufacturer’s standard warranty period. The terms of this Section shall apply for the benefit of Buyer regardless whether the goods or equipment into which the goods may have been incorporated is no longer within Buyer’s possession. To the extent the goods are sold by Buyer to a consumer or incorporated into equipment sold by Buyer to a consumer, Supplier’s warranty shall be deemed to extend to cover all time and matters required by law, including but not limited to the Magnuson-Moss Warranty Act and Ohio Consumer Sales Practice Act.
7. Inspection. During the manufacture or after delivery, Buyer may inspect any materials or goods which have been or will be worked upon, produced, or sold to satisfy this Order. Goods which are nonconforming shall, at Buyer’s option, be repaired or replaced at Supplier’s sole expense. Any goods furnished pursuant to the foregoing repair or replacement obligation shall be subject to the same warranty as provided herein. If the parties have entered into a Product Supply Agreement, Buyer shall have additional remedies as stated therein.
8. Rejection. Any goods which have been rejected or required to be corrected shall be removed and/or corrected by and at the expense of Supplier, promptly after notice. If, after being requested by Buyer, Supplier fails to promptly replace or correct any defective goods, Buyer (a) may, by contract or otherwise, replace or correct such goods, and charge to Supplier the cost occasioned Buyer thereby; or (b) may, without further notice, terminate this order for default without waiving any rights or remedies Buyer may have at law or in equity.
9. Intellectual Property. If Buyer has conducted, taken part in, or paid for the design of goods, the intellectual property rights in the goods shall wholly accrue to Buyer, unless otherwise regulated in a specific agreement. In the event Buyer does not own the rights to the goods, the Supplier guarantees that the design of the goods does not infringe upon any third party intellectual property right (including by way of example, but without limitation, patent, copyright or trademark) and Supplier hereby indemnifies Buyer against all claims made by third parties and Supplier shall be obligated to provide and pay any and all royalties, counsel fees, litigation expenses, judgments, awards, settlements and all other costs and expense, incurred in defending Buyer against such demands, claims and litigation. The Supplier also undertakes to replace such infringing goods with non-infringing goods of at least equal quality and functionality or to obtain the rights necessary to permit Buyer to use such goods.
10. Indemnification. Supplier shall indemnify, defend and save harmless Buyer from and against all claims for loss or damage of any kind or for injury to any person or property (and any expenses, including attorney’s fees, resulting there from) arising out of or in any way related to, the condition, use, repair, installation or design of the goods or services purchased hereunder, whether such claims are based on negligence, breach of warranty (including any implied warranty or warranty provided pursuant to the Magnuson-Moss Warranty Act), strict tort liability or otherwise, and whether any such goods are in the same mode as when delivered hereunder. Supplier agrees to and will assume on behalf of Buyer, upon its demand (without regard to the real or apparent merits of said action) the defense of any action which may be brought against Buyer.
11. Limitation of Buyer’s Liability. Buyer shall not be liable to Supplier, its employees, representatives, agents, suppliers, or subcontractors for any anticipated profits or incidental damages (except to the extent expressly provided in Section 14) or consequential damages. Without limiting the foregoing, Buyer’s liability for any claim arising directly or indirectly under or in connection with the Order shall in no event exceed the cost of the goods or services giving rise to the claim. Buyer shall have no liability for penalties of any kind.
12. Use of Information. Any specifications, drawings, sketches, models, samples, tools, technical information or data furnished to Supplier by Buyer shall remain Buyer’s property and shall be returned to Buyer upon its request. Supplier shall use information only in connection with this Order, agrees to keep the same confidential and shall not disclose any Buyer-furnished drawings and/or specifications to any person, firm or corporation other than the Buyer’s or the Supplier’s employees, and/or subcontractor, only to the extent reasonably necessary to perform the work hereunder, all having been made aware of the confidential nature hereof, and being bound thereon.
13. Changes. Buyer may at any time, by written order, make changes within the general scope of this Order, in any one or more of the following: (a) applicable drawings, designs or specifications; (b) method of shipment or packing; (c) place or time of delivery, including temporary suspension of shipments; (d) materials, methods or manners of production, or final goods. If any such change causes an increase in the cost of or time required for performance, an equitable adjustment shall be made in the price or delivery schedule, and this Order shall be modified in writing accordingly. Where the cost of property made obsolete or excess as the result of a change is included in Supplier’s claim for adjustment, Buyer shall have the right to prescribe the disposition of such property. Any claim by Supplier for adjustment hereunder must be asserted within ten days from the date of receipt by Supplier of the notification of change. However, nothing in this section shall excuse Supplier from proceeding with the order as changed or modified.
14. Termination for Convenience.Buyer may, by written notice to Supplier, terminate the Order, or any part thereof, for any or no reason. Upon notice of termination, Supplier shall stop all work and cause its suppliers and/or subcontractors to stop all work in connection with the Order. If Buyer terminates for convenience, Buyer shall pay Supplier for goods accepted as of the date of termination, and, subject to Section 11, for Supplier’s actual, reasonable, out of pocket costs incurred directly as a result of such termination. Buyer shall have no responsibility for work performed after Supplier’s receipt of notice of termination.
15. Bankruptcy. If Supplier becomes insolvent or a petition in bankruptcy is filed by or against it, Buyer may elect to terminate this Order and shall thereupon be relieved from all liability to any person or persons.
16. Packing. No charge for boxing, crating, packing, or cartage will be allowed without the specific written approval of the Buyer. All shipments must be adequately boxed or crated, with any special handling clearly marked, and the contents protected to prevent damage in transit.
17. Delivery Date. Shipment shall be delivered on the required date. Time is of the essence. Buyer, without waiving any other legal rights, reserves the right to cancel without charge or to postpone deliveries of any of the goods covered by this Order which are not shipped in time to meet the required delivery date.
18. Title. Title to the goods shall pass to Buyer the earliest of when Buyer pays for the goods or takes physical possession of the goods. Transfer of title shall not limit Buyer’s right to refuse or reject the goods in case of non-conformity or defect. If Buyer rejects goods as non-conforming or defective, or where Supplier retakes possession of the goods in accordance with the remedy provisions herein, risk of loss or damage to those goods shall revert to Supplier on repossession.
19. Damages. Without limiting Buyer’s rights and remedies at law or in equity, Buyer reserves the right to charge Supplier for any loss, expense (including reasonable attorneys’ fees) or damage sustained as a result of Supplier’s failure to deliver conforming goods or services or other breach of the Order, including without limitation, expenses incurred in connection with Buyer’s purchase of substitute goods, incidental damages and consequential damages resulting from Supplier’s failure or breach.
20. Recovery of Legal Fees and Costs. Buyer shall be entitled to recover, in addition to all other remedies or damages, reasonable attorney's fees and court costs incurred in any suit required to enforce the terms hereof.
21. Governing Law and Venue. This Order and any questions with respect to the construction, validity, and interpretation of the Order shall be governed by and determined in accordance with the laws of Ohio, without regard to conflict of laws principles therein. Supplier covenants and agrees that any legal action or lawsuit brought to enforce the Order or any of the terms and provisions hereof shall be exclusively venued in the Common Pleas Court of Wayne County, Ohio, or the United States District Court for the Northern District of Ohio.
22. Partial Inapplicability. Should any term or condition, or any portion hereof, be invalid or inapplicable, the balance of the terms and conditions shall govern.