TERMS AND CONDITIONS OF PURCHASE
1. CONTRACT FORMATION.
This offer to purchase becomes a contract only when acknowledged in writing or otherwise accepted by Seller; the furnishing of any product or service hereunder or the acceptance of any payment made by Buyer under this offer constitutes an unqualified acceptance by Seller of this purchase order and all of these Terms and Conditions of Purchase. Buyer objects to the prior or subsequent inclusion of any different or additional terms proposed by Seller in any quotation, proposal, acknowledgment, invoice or other form, correspondence or communication whatsoever; and a contract will result only on the basis of this purchase order including these Terms and Conditions of Purchase. If this order responds to Seller’s quotation or proposal, Seller agrees that the terms of this purchase order including these Terms and Conditions of Purchase shall supersede any terms and conditions contained in the quotation or proposal. Acceptance of any Buyer's quotation or proposal by Seller is expressly conditional on Seller’s assent to the additional and different terms contained in this purchase order including these Terms and Conditions of Purchase.
2. COMPLETE AGREEMENT.
This purchase order contains the complete and final agreement between Buyer and Seller, superseding all prior oral or written negotiations, representations, statements and communications. No agreement or other understanding in any way purporting to modify this purchase order, including these Terms and Conditions of Purchase, shall be binding upon Buyer unless made in writing and signed by an authorized representative from Buyer's Purchasing Department. Buyer is not responsible for any goods delivered or services performed unless authorized by a written purchase order.
3. TIMELY DELIVERY AND PERFORMANCE.
(a) Time is of the essence with regard to delivery of all goods and services under this purchase order. Shipments must be made and services commenced to meet agreed dates. Seller shall give the Buyer immediate notice in writing of the cause and of the length of any delay or anticipated delay in meeting the delivery requirements of this purchase order. Buyer, at its option, may either approve a revised shipment, delivery or performance schedule or may cancel the shipment, delivery, or this purchase order without liability. In the alternative, Buyer may also require a more expeditious method of transportation for the goods than the transportation method originally specified. In such case, Seller shall, at Buyer's option
(i) promptly reimburse Buyer for the increased cost of the more expeditious method, (ii) allow Buyer to reduce its payment of Seller's invoices by such difference, or
(iii) ship the goods as expeditiously as possible at Seller's expense and invoice Buyer for the amount that Buyer would have paid for normal shipment.
(b) Seller represents that it has taken such steps as are necessary to ensure that the timely delivery of goods and services is not affected by disruption or failure of computer or other systems related to the millennium date change. Seller further agrees to provide such documentation or certification as Buyer may request from time to time in order to document Seller’s compliance with this representation. In no event shall disruption or failure of Seller’s or its suppliers’ computer or other systems relating to the millennium date change be deemed outside the reasonable control of Seller, a force majeure event or in any way excuse or limit any performance due by Seller under this purchase order.
4. SHIPPING, PACKING, RISK OF LOSS, RECEIPT.
Buyer shall have the right to route all shipments. All goods shall be suitably packed, marked with the purchase order number and shipped in accordance with Buyer’s shipping instructions and in accordance with the requirements of common carriers so as to obtain the lowest transportation cost. Packing slips must be included with all shipments showing purchase order number, part number and quantity; and the last copy must state “Order Completed”. The order number must also be shown on the invoice. No charge shall be made to Buyer for boxing, packing, crating or carting unless separately itemized on the face of this purchase order. Regardless of shipping terms, all risk that the ordered goods may be lost, damaged or delayed in transit shall be upon the Seller until conforming goods have been actually received, inspected and accepted by Buyer. The Seller shall be liable to Buyer for any loss or damage resulting from the Seller’s failure to provide adequate protection during shipment. Additional expenses, charges or claims incurred as a result of deviation from the specified route, noncompliance with these or other shipping instructions, or improper description in shipping documents shall be assumed by the Seller. Seller will handle all claims with carrier and its insurer, and billing and payment for lost or damaged goods shall be withheld until the claim is resolved. Buyer will not be responsible for deliveries made to it unless receipted for by the Buyer’s Receiving Department.
5. WARRANTIES.
(a) Seller represents and warrants that all the goods and services covered by this purchase order:
(i) conform to the specifications, drawings, data, samples, or other descriptions furnished or specified by Buyer;
(ii) are new, merchantable, and free from defect in material, workmanship and design;
(iii) are supplied with all operation, testing, service and maintenance manuals, instructions, warnings, software (including source code) and documentation;
(iv) are free of liens or claims by any third party; and
(v) are designed to be used prior to, during and after the calendar year 2000 A.D. and will be able to correctly recognize, calculate, sort, store, display and/or process dates outside of the range of 1900-1999, including the years 1999, 2000 and beyond. The goods will correctly recognize that the year 2000 is a Leap Year and will correctly handle all date calculations involving the date February 29, 2000.
(b) In addition, Seller acknowledges that it knows of Buyer's intended use and warrants that all goods and services covered by this order which have been selected, designed, manufactured, assembled or supplied by Seller, will be fit and sufficient for that use.
(c) All warranties shall commence only upon acceptance by Buyer of all the goods and services supplied under this purchase order and shall continue thereafter for at a minimum of one (1) year, unless a different term is expressly stated on the face of this purchase order, from the point of install of the end product (VMC, Rotary Table) at Fadal’s customer. In addition, the above Section 5(a)(v) warranty shall expire no earlier than January 31, 2001.
(d) These representations and warranties shall survive acceptance and subsequent use or resale or other disposition of the goods or services, as well as payment therefor, by Buyer; and also run to Buyer’s successors, assigns, customers and users of Buyer’s products that contain, incorporate or embody goods or services purchased under this purchase order.
(e) Buyer objects to any provision limiting the Buyer's rights or remedies under applicable law.
6. PRICE WARRANTY.
If prices in effect at the date of acceptance of this purchase order are reduced prior to the date of delivery or performance, or if Seller lowers prices to other buyers under similar conditions and in similar quantities before completion delivery, Seller agrees to afford to Buyer the benefit of such reduction or lower prices. This purchase order may not be filled at a higher price than last quoted or charged without Buyer's prior written consent. If no price is specified, the price is to be the price of the last delivery.
7. NONCONFORMING GOODS.
(a) Goods or services not represented, warranted or otherwise not in accordance with this purchase order may be rejected and returned by Buyer at Seller's risk and expense. To the extent Buyer rejects goods as nonconforming, quantities under this order will automatically be reduced unless Buyer otherwise notifies Seller. Payment for nonconforming goods or services shall not constitute an acceptance thereof, or limit or impair Buyer's right to assert any legal or equitable right or remedy, or relieve Seller of responsibility for latent defects.
(b) Seller also agrees to repair, replace or correct any goods or services not conforming to the foregoing warranties promptly, without expense to Buyer. In the event of Seller’s failure to correct defects in or replace nonconforming goods or services promptly, Buyer may repair, replace or correct such goods and services and charge Seller for the cost incurred by Buyer in doing so.
8. BAILED PROPERTY.
All supplies, materials, tools, jigs, dies, gauges, fixtures, molds, patterns, equipment and other items furnished by Buyer, either directly or indirectly, to Seller to perform this purchase order, or for which Seller has been reimbursed by Buyer, shall be and remain the property of Buyer (hereinafter “Bailed Property”). Bailed Property shall not be used to manufacture goods or provide services to any other party and shall: be properly housed and maintained by Seller; be deemed to be personalty; be conspicuously marked "Property of Fadal Machining Centers, LLC" by Seller; not be commingled with the property of Seller or third party; and, not be moved from Seller's premises without Buyer's prior written approval. Upon the request of Buyer, and in any event upon completion of Seller’s performance hereunder, such property shall be immediately released to Buyer or delivered to Buyer by Seller, either
(a) FOB or FCA Seller's plant properly packaged and marked in accordance with the requirements of the carrier selected by Buyer, or
(b) to any location designated by Buyer, in which event Buyer shall pay to Seller the reasonable cost of delivering such property to such location. Buyer shall have the right to enter onto Seller's premises at all reasonable times to inspect Bailed Property and Seller's records with respect thereto. Bailed Property shall be fully insured by Seller for the benefit of the Seller and Buyer against loss by fire, or against such losses as are usually insured against under the ordinary extended coverage. Notwithstanding the existence or limits of any insurance, Seller shall bear the risk of loss of or damage to Bailed Property. No storage charge shall be assessed by Seller with respect to any of Bailed Property.
9. PROPRIETARY RIGHTS.
(a) Buyer’s data, designs, specifications, computer programs, drawings, plans, documentation, processes, models, prototypes, methods, technologies, techniques, formulae or other information concerning its products or business, in whatever form (including that which may be embodied in Bailed Property), is Buyer’s proprietary and confidential property (“Proprietary Property”). If any goods are made or services supplied according to, by means of or with Proprietary Property, the Seller agrees that the same goods or services will not be furnished to any other party and that Proprietary Property will not be used to provide goods or services to Buyer, without the Buyer's written consent. Seller shall keep all Buyer’s Proprietary Property confidential. Upon completion of this purchase order, Seller shall turn over to the Buyer all Proprietary Property in its possession.
(b) Seller agrees that Buyer also owns all right, title and interest in and to any invention, discovery, concept, idea or work of authorship conceived, developed, reduced to practice or created in connection with or suggested by this purchase order (hereinafter “Developments”), which Developments are hereby deemed Proprietary Property. If any goods or services supplied by Supplier are copyrightable, they shall be deemed to be a "work made for hire," as such term is defined in the Copyright Laws of the United States. In any event, the Seller hereby assigns, and agrees to assign or cause the assignment of, without further compensation, to Buyer, all right, title and interest in and to all Developments, and Seller shall execute or cause the execution of all papers reasonably required to protect Buyer’s rights.
(c) In the event or to the extent Buyer does not acquire the right, title and interest in any goods or services as described in subsection (b) above, Seller hereby grants Buyer a perpetual, worldwide, nonexclusive, royalty-free, irrevocable license to make, use, sell, sublicense, and import all Developments and to repair and have repaired, to reconstruct and have reconstructed the goods, and to prepare derivative works of any works of authorship performed or delivered hereunder.
(d) Buyer may agree to hold the Seller's confidential and proprietary property in confidence, but only if, and to the extent, a separate confidentiality agreement is signed by Buyer.
10. GENERAL INDEMNIFICATION.
Seller shall defend, indemnify and hold harmless Buyer from and against any and all claims, demands, losses, suits, causes of action, damages, injuries, costs, expenses and liabilities whatsoever, including reasonable attorneys' fees (such liabilities hereinafter referred to in this Section 10 and in the following Sections 11 (Intellectual Property Infringement) and 12 (Work on Buyer’s Premises) as “Liability”) arising out of the Seller’s performance of this purchase order and including without limitation Liability for property or personal injury (including death), whether said Liability is premised on contract or on tort (including without limitation strict liability or Buyer's negligence). This indemnity will not apply where such Liability arises solely from the negligence or other fault of Buyer or its employees. Buyer, at its option, may require Seller to furnish evidence of insurance reasonably satisfactory to Buyer covering the Liability and indemnification provided above, but no acceptance of such evidence by Buyer shall be deemed a waiver, release or limitation of such Liability or duty to indemnify. This general indemnification shall not be construed as limiting or qualifying Buyer’s other indemnification rights under this purchase order.
11. INTELLECTUAL PROPERTY INFRINGEMENT.
(a) Seller hereby agrees to defend, hold harmless and indemnify Buyer, its successors and customers, against all Liability arising out of any actual or alleged, direct or contributory, infringement of, or inducement to infringe, any United States or foreign patent, trademark, copyright or other intellectual or industrial property right, or for the actual or alleged misuse or misappropriation of a trade secret by reason of the manufacture, use, sale, license or import of the goods or services supplied by Seller under this purchase order.
(b) The preceding subsection shall not apply if Liability directly and solely results from the detailed design or specification supplied by Buyer to Seller, if and to the extent Seller has not participated in or contributed to the development of such design or specification. This displaces and Seller waives any claim against Buyer under the Uniform Commercial Code or otherwise, including any hold harmless or similar claim, in any way related to a claim asserted against Seller or Buyer for infringement or the like.
12. WORK ON BUYER'S PREMISES.
If Seller's performance of this purchase order involves or results in the presence of Seller or its agents on premises of Buyer or Buyer's customer(s), Seller shall take all necessary precautions to assure that the work and other Seller activities are carried out in a safe and proper manner and Seller shall defend, hold harmless and indemnify Buyer against all Liability arising out of such work or Seller’s presence on the premises. Seller shall also maintain such public liability, property damage, and employer's liability and workers’ compensation insurance as will protect Buyer from risk and from any claims under any applicable workers' compensation acts. Seller agrees to sign Buyer's standard independent contractor agreement, if requested by Buyer, before performing any work on the Buyer's premises.
13. TAXES.
Any applicable sales or use or federal excise tax will be shown separately on the invoice. Buyer will not pay any additional taxes unless specifically agreed to in writing.
14. DUTY DRAWBACK.
Should Buyer be entitled to make application for duty drawback with respect to any material imported by Seller to satisfy this order (including rights developed by substitution and rights which may be acquired from Seller's suppliers), Seller will provide without cost to Buyer the necessary information and documentation to enable Buyer to make such application.
15. SETOFF.
In addition to any right of setoff provided by law, all amounts due Seller or its affiliates under this or any other purchase order or contract shall be considered net of Seller’s indebtedness or obligation to Buyer and its affiliates; and Buyer may deduct any amounts due or to become due from Seller and its subsidiaries and affiliates from any sums due or to become due from Buyer or its affiliates.
16. CHANGE ORDERS.
Buyer may at any time by written order make changes in the goods or services ordered, including changes in drawings and specifications, or require additional goods or services. If such changes cause an increase or decrease in Seller's cost or in the time required for Seller's performance, an equitable adjustment shall be made and this purchase order shall be modified in writing. Seller shall perform under the purchase order as changed by Buyer while negotiation or other determination of the equitable adjustment is taking place.
17. TERMINATION.
(a) Buyer may terminate all or any part of this purchase order without cause and at its convenience. Upon written notice from Buyer to Seller of such termination, Seller shall stop all work and shall cause its suppliers or subcontractors to stop all work.
(b) Upon such termination, Buyer shall pay to Seller the following amounts without duplication:
(i) the order price for all goods or services which have been completed in accordance with this purchase order; and
(ii) the actual direct costs of and the proportionate profit allocable to goods-in-process, raw material committed and services rendered as of the date of termination, but only to the extent such costs and profits are reasonable in amount and otherwise proper under generally accepted accounting principles, and less, however, the reasonable value of any goods-in-process or materials otherwise used or sold by Seller with Buyer's written consent and any undelivered goods or raw materials which are in Seller's standard stock or which are readily marketable.
(c) Buyer will make no payments for finished goods, goods-in-process, or raw materials in excess of those authorized in delivery releases outstanding at the date of termination. In no event will payments made exceed the aggregate price payable to Buyer for finished goods which would be provided by Seller under delivery or release schedules outstanding at the date of termination.
(d) Buyer shall not be liable for and shall not be required to make payments to Seller, directly or on account of claims by Seller's subcontractors, for loss of anticipated profit (except to the limited extent as expressly provided in Subsection 17(b)(ii)), unabsorbed overhead, interest on claims, product development and engineering costs, facilities and equipment rearrangement or rental costs, unamortized depreciation costs, and general and administrative burden charges arising out of the termination.
(e) Payment is conditioned upon receipt by Buyer of Seller’s termination claim, with sufficient supporting data to permit Buyer's audit, within ten (10) business days from the effective date of termination, and thereafter prompt receipt of such supplemental and supporting information as Buyer may request. Buyer, or its agents, shall have the right to audit and examine all books, records, facilities, work, material, inventories, and other items relating to Seller’s termination.
(f) Upon payment in accordance with this Section 17, all right, title and interest in and to finished goods, goods or services (including Developments) in process and raw materials shall vest in Buyer.
18. CANCELLATION.
Buyer reserves the right to cancel or suspend, from time to time, all or any part of this purchase order for cause, if Seller fails to make any delivery of any goods or perform any services in accordance with this purchase order, if Seller otherwise breaches any of the other provisions of this purchase order or upon the happening of any of the following or comparable events:
(a) Seller’s insolvency;
(b) Seller’s filing of a voluntary petition in bankruptcy;
(c) filing of any involuntary petition in bankruptcy against Seller;
(d) appointment of a receiver or trustee for Seller;
(e) execution of an assignment for the benefit of creditors by Seller, provided that such petition, appointment, or assignment is not vacated or nullified within 15 days of such event;
(f) Seller’s failure to provide documentation in a timely manner pursuant to a request by Buyer under Section 3(b) of these Terms and Conditions; or
(g) Buyer’s reasonable determination that Seller is at risk for non-delivery of any goods or services or other breach as a result of the millennium date change.
19. ASSIGNMENTS AND SUBCONTRACTS.
Seller will not assign or transfer this purchase order nor subcontract the furnishing of any complete or substantial portion of the goods or services without the prior written approval of Buyer. Buyer reserves the right to assign or transfer this order.
20. RELATIONSHIP OF PARTIES.
Seller and Buyer are independent contracting parties and nothing in this purchase order shall make either party the agent or legal representative of the other for any purpose whatsoever, nor does it grant either party any authority to assume or to create any obligation on behalf of or in the name of the other.
21. APPLICABLE LAWS.
(a) This purchase order shall be governed by and shall be construed according to the laws of the state of the Buyer’s facility indicated on the face of this purchase order without regard to principles of conflicts of laws. The rights and obligations of the parties shall not be governed by the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods.
(b) Seller represents and warrants that this purchase order is being performed subject to all applicable federal, state or local laws, rules, regulations, ordinances or requisitions, and the Seller agrees upon request to furnish the Buyer a certificate to such effect, in such form as the Buyer may from time to time require.
22. FAIR LABOR STANDARDS.
The Seller hereby certifies that all goods furnished and service provided hereunder shall have been produced in compliance with all applicable requirements of Sections 6, 7 and 12 of the Fair Labor Standards Act of 1938, as amended, and of regulations and orders of the Administrator of the Wage and Hour Division issued under Section 14 thereof, and in accordance with all applicable state and federal laws and regulations governing general conditions for labor employed in the production of such goods.
23. OSHA HAZARD COMMUNICATION.
As a requirement of this purchase order and the Federal OSHA Hazard Communication Standard, the Seller will provide to Buyer’s purchasing department a Material Safety Data Sheet (MSDS) that meets all the requirements of the OSHA standard for all goods purchased. Seller will also assure that every product delivered is labeled in compliance with all applicable laws and regulations.
24. GOVERNMENT CONTRACTS.
If the face of this purchase order identifies a government prime contract, the following clauses are hereby incorporated by reference: Equal Opportunity (E. O. 11246), 48 CFR 52.222-26; Affirmative Action for Special Disabled and Vietnam Era Veterans (38 U.S.C. 4212(a)), 48 CFR 52.222-35; Affirmative Action for Handicapped Workers (29 U.S.C. 793), 48 CFR 52.222-36. Copies of these clauses are available on request.
25. RIGHTS AND REMEDIES.
(a) Any action resulting from any breach on the part of Buyer arising out of this purchase order must be commenced within six (6) months after the cause of action has accrued or be forever waived.
(b) Buyer’s failure to insist on performance of any term or condition of this purchase order, or to exercise any right or privilege or Buyer’s waiver of any breach of this purchase order shall not thereafter be a waiver of other terms, conditions or privileges, whether of the same or similar type.
(c) Otherwise, the rights and remedies herein reserved to both Buyer and Seller shall be cumulative, and in addition to any other or further remedies provided in law or equity.
26. SEVERABILITY.
If any provision of this purchase order or part thereof is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, such shall be deemed reformed or deleted, but only to the extent necessary to comply with such statute, regulation, ordinance, order or rule, and the remaining provisions of this purchase order shall remain in full force and effect.
27. LEGAL AND ETHICAL COMPLIANCE.
It is Buyer’s company policy that its employees will abide by the law and conform to high ethical standards when conducting company business. Seller may communicate suspected violations of this policy to the Buyer by telephoning 1-800-599-4548 or by writing to: Giddings & Lewis, Inc., Attn.: Corporate Compliance Officer, 142 Doty Street, Fond du Lac, WI, U.S.A. 54935.
--------------------------------------------------------------------------------
POTC-0599
