1. TERMS. These Purchase Order Terms and Conditions are the exclusive contract between Vendor and Purchaser; there are no terms, understandings, agreements, other than those stated herein. Upon acceptance or shipment of Products, Vendor is bound by these Terms and Conditions, including all provisions set forth on the face of any applicable purchase order. These Terms and Conditions may not be altered, amended, nor waived except in writing signed by an officer of the party to be bound thereby. IF ANY PROVISIONS OF VENDOR’S CONFIRMATION OR OTHER WRITINGS ARE DIFFERENT FROM OR ARE OTHERWISE IN CONFLICT WITH THESE TERMS AND CONDITIONS, THESE TERMS AND CONDITIONS SHALL GOVERN AND THE TERMS CONTAINED IN VENDOR’S CONFIRMATION OR OTHER WRITINGS ARE EXPRESSLY REJECTED BY PURCHASER.
2. PRICE. Vendor may not increase prices after acceptance. Vendor shall provide Purchaser with pricing and terms which are not less favorable than those extended to other purchasers. If Vendor reduces its price, Vendor shall reduce Purchaser price accordingly. The price on the Order is complete and no additional surcharges or taxes may be added.
3. PAYMENT. Unless otherwise specified in an Order or agreed in writing by the parties, payment terms are net 60 days from Purchaser’s receipt of Vendor’s invoice and invoicing may occur only after shipment. Purchaser has no obligation to pay any invoice for Product received more than one year after shipment. Unless otherwise specified on the face of this Order, all prices are quoted in U.S. Dollars. Payment does not constitute acceptance of Product or relieve Vendor of any obligations. Purchaser may withhold funds, without interest, to assure itself of the discharge of all Vendor’s obligations or Purchaser claims. Purchaser may set off any amount owing from Vendor to Purchaser (or any of Purchaser’s affiliates and subsidiaries) against any amount payable by Purchaser (or any of its affiliates and subsidiaries) to Vendor.
4. SHIPMENT. Vendor shall ship Product F.O.B. Delivered unless otherwise specified in an Order. Purchaser’s weights taken at delivery point govern. Vendor shall package the Product per Purchaser’s specifications and in compliance with applicable laws, rules and regulations.
5. DELIVERY. Time is of the essence in this Order. If delivery of Product or rendering of services is not completed by the time provided for or established herein, Purchaser may, without waiving any of its rights and remedies, terminate this Order, purchase substitute items or services elsewhere and charge Vendor for any loss or damage incurred by Purchaser.
6. TITLE AND RISK OF LOSS. Vendor shall be responsible and bear the risk of loss or damage for the Products until delivery at the designated delivery point and acceptance by Purchaser. Risk of loss for Products transfers to Purchaser when Products are offloaded on delivery. Vendor shall maintain manufacturing and shipment records for at least two (2) years from the date of Vendor’s shipment and Purchaser shall have access to such records upon reasonable prior notice.
7. MSDS AND LABELS. Vendor shall provide Purchaser with a copy of each of its current and future revised Product labels, decals and stencils (“Labels”) and Material Safety Data Sheets (“MSDSs”) for each Product. Vendor represents and warrants that the Labels and MSDSs are (a) accurate, (b) adequate to fully advise those who come into contact with the Product of the safety requirements and hazards associated with the Product, and (c) in compliance with all industry standards and applicable laws, rules and regulations. Purchaser has no obligation to review the accuracy or adequacy of the Labels or MSDSs.
8. WARRANTY. Vendor warrants that (a) the Product conforms to Vendor’s published specifications and all information on applicable Labels, literature and MSDSs, (b) the Products are free from design defect, merchantable, and suitable for the purpose intended by Purchaser, (c) warnings provided by Vendor on Labels and MSDSs accurately inform those who come into contact with the Product of the safety requirements and hazards associated with the Product, (d) Vendor has free and clear title to Product delivered to Purchaser, (e) it shall not violate any United States, or foreign, federal, state, national, provincial, municipal or other statute, law, regulation or ordinance, and (f) the Product does not infringe any patent, trademark, trade secret or trade name. Vendor’s inclusion of express warranties and representations or exclusions of warranties are not deemed to create or exclude any warranties that may be implied or expressly set forth in law or fact. Purchaser’s warranties are cumulative and in addition to any warranties available at law. The warranties contained herein shall run to Purchaser and its customers and users of Purchaser’s Products or services, and shall survive inspection, acceptance and payment.
9. REMEDIES. Purchaser may inspect Products prior to acceptance. Notwithstanding any inspection, Vendor is responsible for any nonconformance. Purchaser may return nonconforming Product to Vendor for, at Purchaser’s option, replacement, credit, or refund at Vendor’s risk and expense including but not limited to, all transportation costs (both ways) and other handling costs. Vendor is liable for Purchaser’s incidental and consequential damages. Notwithstanding anything set forth in Vendor’s terms, documents, Purchaser may avail itself of any remedy available at law or in equity.
10. INDEMNITY. Vendor shall indemnify, defend and hold Purchaser, and its officers, members, employees, agents, servants and other vendors harmless from and against any claim, demand, action, causes of action, judgment, penalty or other liability (including defense or settlement costs and reasonable attorneys’ fees) (“Claim”) if the Claim is caused or alleged to be caused by (a) Vendor’s breach of this Agreement, (b) the negligence or willful misconduct of Vendor, its employees or agents, (c) any failure to provide warnings that make the Product safe for the Product’s intended uses, (d) any Product defect existing when the Product was delivered to Purchaser’s specified location, or (e) any alleged patent, trademark, trade dress, trade secret or other intellectual property right infringement. Purchaser shall indemnify, defend and hold Vendor harmless from and against any Claim related to personal injury or property damage to third parties to the extent the Claim is caused by Purchaser’s sole negligence or willful misconduct. The parties’ rights and remedies are cumulative and in addition to any other rights and remedies the parties have at law or equity.
11. INSURANCE. Vendor shall maintain the following insurance policies with at least the listed minimum limits through an insurer having an AM Best Rating of A- or better: (a) commercial general liability for bodily injury/property damage, products liability/completed operations and contractual liability — $2,000,000 per occurrence; and (b) commercial automobile liability, with an MCS-90 endorsement with limits as required by applicable federal law, covering all owned, hired and non-owned vehicles — $1,000,000 per occurrence. If the policies have a deductible or self-insured retention, Vendor assumes all policy obligations as if the policy had first-dollar coverage. The policies will waive all rights of subrogation against Purchaser. Vendor will add Purchaser as an additional insured on the policies in (a) and (b). Vendor shall provide Purchaser with a certificate of insurance evidencing the required coverages, including endorsements that waive the right of subrogation against Purchaser and add Purchaser as an additional insured. The certificate and additional insured endorsement must provide Purchaser with at least 30 days’ notice of cancellation, non-renewal or material change. Vendor shall provide Purchaser with certified copies of the policies at Purchaser’s request.
12. FORCE MAJEURE. Neither party is liable for nonperformance or delay in performance caused by circumstances beyond the party’s control (“Force Majeure Event”). Product shortages, increases in Vendor’s costs, events due to Supplier’s negligence, or any foreseeable events are not circumstances beyond Vendor’s control under this provision. If there are Product shortages as a result of the Force Majeure event, Vendor may reduce its supply to Purchaser in a manner equitable and proportional to those reductions Vendor makes to all other similarly situated distributors and major customers.
13. FUTURE BUSINESS. Purchaser is only obligated to purchase Products from Vendor under a specific Order. Purchaser has no obligation to place future orders with Vendor and is not obligated to continue to do business with Vendor by oral agreement, course of dealing, concepts of contracts of indefinite duration or business expectancy or otherwise.
14. TERMINATION. Purchaser may terminate or suspend any Order on notice to Vendor. Purchaser’s only liability for such termination shall be payment for any properly delivered Products. Purchaser may return saleable inventory on termination of this Order without incurring restocking fees.
15. GOVERNING LAW/ARBITRATION. This Order shall be governed and interpreted by the laws of Ohio, without reference to principles of conflicts of law. The parties will submit any dispute related to this Agreement to arbitration in Columbus, Ohio before one arbitrator under the American Arbitration Association’s Commercial Arbitration Rules. A party may seek interim relief from any court having jurisdiction without waiving any remedy under this Agreement. The arbitrator may not award punitive damages or other damages not measured by actual damages, or limit, expand or otherwise modify the terms of this Agreement. A party may enter a judgment on an award in any court having jurisdiction. The prevailing party is entitled to an award of reasonable attorney fees.
16. GENERAL CONDITIONS. Vendor nor may not assign, delegate or sub- contract its rights or obligations under this Order without the express written consent of Purchaser. This Order shall inure to the benefit of and be binding upon the parties hereto and their respective successors and legal representatives. No provisions of this Order will be waived by any party except in writing. The parties hereto agree that the waiver by any party of a breach of any provision of this Order shall not operate or be construed as a waiver of any subsequent breach of that provision by the same party, or any other provision or condition of this Order. If any provision or application of this Order shall be held invalid or unenforceable, the remaining provisions and applications of this Order shall not be affected, but rather shall remain valid and enforceable. Those obligations or responsibilities contained in this Order which are continuing in nature shall survive the expiration or termination of this Order.