SUPPLIER PURCHASE ORDER TERMS AND CONDITIONS
Effective 07/12/2012
1. SERVICES & DELIVERABLES. Seller agrees to provide to
Dayton Air Control Products LLC (hereinafter referred to as “Company”) the
services ("Services") and/or goods (“Goods”), described in any purchase
order, in accordance with these Terms and Conditions ("Agreement"). Upon
acceptance of a purchase order, shipment of Goods or commencement of a
Service, Seller shall be bound by the provisions of this Agreement,
including all provisions set forth on the face of any applicable purchase
order, whether Seller acknowledges or otherwise signs this Agreement or the
purchase order, unless Seller objects to such terms in writing prior to
shipping Goods or commencing Services.
This writing does not constitute a firm offer, and may be revoked at any
time prior to acceptance. This Agreement may not be added to, modified,
superseded, or otherwise altered, except by writing signed by an authorized
COMPANY representative. Any terms or conditions contained in any
acknowledgment, invoice, or other communication of Seller, which are
inconsistent with the terms and conditions herein, are hereby rejected. To
the extent that this Agreement might be treated as an acceptance of Seller’s
prior offer, such acceptance is expressly made on condition of assent by
Seller to the terms hereof and shipment of the Goods or beginning
performance of any Services by Seller shall constitute such assent. COMPANY
hereby reserves the right to reschedule any delivery or cancel any purchase
order issued at any time prior to shipment of the Goods or prior to
commencement of any Services. COMPANY shall not be subject to any charges or
other fees as a result of such cancellation.
2. DELIVERY. Time is of the essence. Delivery of Goods
and Services shall be made pursuant to the schedule, via the carrier, and to
the place specified on the face of the applicable purchase order. COMPANY
reserves the right to return, shipping charges collect, all Goods received
more than five days in advance of the delivery schedule. If no delivery
schedule is specified, the order shall be filled promptly and delivery will
be made by the most expeditious form of land transportation. If no method of
shipment is specified in the purchase order, Seller shall use the least
expensive carrier. In the event Seller fails to deliver the Goods or
Services within the time specified, COMPANY may, at its option, decline to
accept performance and terminate the Agreement or may demand its allocable
fair share of Seller’s available Goods and terminate the balance of the
Agreement. Seller shall package all items in suitable containers to permit
safe transportation and handling. Each delivered container must be labeled
and marked to identify contents without opening and all boxes and packages
must contain packing sheets listing contents. COMPANY’s purchase order
number must appear on all shipping containers, packing sheets, delivery
tickets, and bills of lading.
3. IDENTIFICATION, RISK OF LOSS, & DESTRUCTION OF GOODS.
Seller assumes all risk of loss until receipt by COMPANY. Title to Goods
shall pass to COMPANY upon receipt by it of the Goods at the designated
point of destination. If the Goods ordered are destroyed prior to title
passing to COMPANY, COMPANY may at its option cancel the Agreement or
require delivery of substitute Goods of equal quantity and quality. Such
delivery will be made as soon as commercially practicable. If loss of Goods
is partial, COMPANY shall have the right to require delivery of the Goods
not destroyed.
4. PAYMENT. As full consideration for the performance of
the Services, delivery of the Goods and the assignment of rights to COMPANY
as provided herein, COMPANY shall pay Seller (i) the amount agreed upon and
specified in the applicable purchase order, or (ii) Seller’s quoted price on
date of shipment (for Goods), or the date Services were started (for
Services), whichever is lower. Applicable taxes and other charges such as
shipping costs, duties, customs, tariffs, imposts, and government imposed
surcharges shall be stated separately on Seller's invoice. Payment is made
when COMPANY's check is mailed. Payment shall not constitute acceptance. All
personal property taxes assessable upon the Goods prior to receipt by
COMPANY of Goods conforming to the purchase order shall be borne by Seller.
Seller shall invoice COMPANY for all Goods delivered and all Services
actually performed. Each invoice submitted by Seller must be provided to
COMPANY within ninety (90) days of completion of the Services or delivery of
Goods and must reference the applicable purchase order, and COMPANY reserves
the right to return all incorrect invoices. COMPANY will receive a 2%
discount of the invoiced amount for all invoices that are submitted more
than ninety (90) days after completion of the Services or delivery of the
Goods. Unless otherwise specified on the face of a purchase order, COMPANY
shall pay the invoiced amount within thirty (30) days after receipt of a
correct invoice. Seller will receive no royalty or other remuneration on the
production or distribution of any products developed by COMPANY or Seller in
connection with or based on the Goods or Services provided.
5. WARRANTIES.
5.1 Services: Seller represents and warrants that all
Services shall be completed in a professional, workmanlike manner, with the
degree of skill and care that is required by current, good, and sound
professional procedures. Further, Seller represents and warrants that the
Services shall be completed in accordance with applicable specifications and
shall be correct and appropriate for the purposes contemplated in this
Agreement. Seller represents and warrants that the performance of Services
under this Agreement will not conflict with, or be prohibited in any way by,
any other agreement or statutory restriction to which Seller is bound.
5.2 Goods: Seller warrants that all Goods provided will
be new and will not be used or refurbished. Seller warrants that all Goods
delivered shall be free from defects in materials and workmanship and shall
conform to all applicable specifications for a period of fifteen (15) months
from the date of delivery to COMPANY or for the period provided in Seller’s
standard warranty covering the Goods, whichever is longer. Seller hereby
agrees that it will make spare parts available to COMPANY for a period of
five (5) years from the date of shipment at Sellers then current price, less
applicable discounts. Additionally, Goods purchased shall be subject to all
written and oral express warranties made by Seller’s agents. All warranties
shall be construed as conditions as well as warranties and shall not be
exclusive. Seller shall furnish to COMPANY Seller’s standard warranty and
service guaranty applicable to the Goods. All warranties and Service
guaranties shall run both to COMPANY and to its customers.
If COMPANY identifies a warranty problem with the Goods during the
warranty period, COMPANY will promptly notify Seller of such problems and
will return the Goods to Seller, at Seller’s expense. Within five (5)
business days of receipt of the returned Goods, Seller shall, at COMPANY’s
option, either repair or replace such Goods, or credit COMPANY’s account for
the same. Replacement and repaired Goods shall be warranted for the
remainder of the warranty period or six (6) months, whichever is longer.
6. INSPECTION. COMPANY shall have a reasonable time
after receipt of Goods or Service deliverables and before payment to inspect
them for conformity hereto, and performance hereunder shall not be deemed
accepted until COMPANY has run an adequate test to determine whether the
Goods and Services conform to the specifications hereof. Use of a portion of
the Goods for the purpose of testing shall not constitute an acceptance of
the Goods. If performance tendered does not wholly conform with the
provisions hereof, COMPANY shall have the right to reject such performance.
Nonconforming Goods will be returned to Seller freight collect and risk of
loss will pass to Seller upon COMPANY’s delivery to the common carrier.
7. INDEPENDENT CONTRACTOR. COMPANY is interested only in
the results obtained under this Agreement; the manner and means of achieving
the results are subject to Seller's sole control. Seller is an independent
contractor for all purposes, without express or implied authority to bind
COMPANY by contract or otherwise. Neither Seller nor its employees, agents
or subcontractors ("Seller’s Assistants") are agents or employees of
COMPANY, and therefore are not entitled to any employee benefits of COMPANY,
including but not limited to, any type of insurance. Seller shall be
responsible for all costs and expenses incident to performing its
obligations under this Agreement and shall provide Seller's own supplies and
equipment.
8. COMPANY OWNED TOOLING. If COMPANY has purchased or
furnished tooling for the manufacture of the item being purchased, it is the
responsibility of the Supplier to maintain, handle and store the tooling in
a manner that will not damage the tooling. Buyer Owned Tooling is to remain
at Sellers Facility at no additional cost to the Buyer as long as Seller
agrees to produce the ordered product. At such time either Seller or Buyer
decide Seller is not to continue the supply of the product, seller will
return tooling to buyer without demurrage or other charges (except
reasonable freight charges).
Seller is responsible for verifying that tooling can produce parts that
meet all requirements and specifications prior to beginning production and
fulfillment of order. Discrepancies shall be reported to Buyer. Seller
is to receive written disposition from seller before production can be
resumed.
9. SELLER RESPONSIBLE FOR TAXES AND RECORDS. Seller
shall be solely responsible for filing the appropriate federal, state and
local tax forms, including, without limitation, a Schedule C or a Form 1020,
and paying all such taxes or fees, including estimated taxes and employment
taxes, due with respect to Seller's receipt of payment under this Agreement.
Seller further agrees to provide COMPANY with reasonable assistance in the
event of a government audit. COMPANY shall have no responsibility to pay or
withhold from any payment to Seller under this Agreement, any federal,
state, or local taxes or fees. COMPANY as required will regularly report
amounts paid to Seller by filing Form 1099-MISC with the Internal Revenue
Service.
10. INSURANCE. Seller shall be solely responsible for
maintaining and requiring Seller’s Assistants to maintain such adequate
health, auto, workers' compensation, unemployment compensation, disability,
liability, and other insurance, as is required by law or as is the common
practice in Seller's and Seller's Assistants' trades or businesses,
whichever affords greater coverage. Upon request, Seller shall provide
COMPANY with certificates of insurance or evidence of coverage before
commencing performance under this Agreement. Seller shall provide adequate
coverage for any COMPANY property under the care, custody or, control of
Seller or Seller's Assistants.
11. INDEMNITY. Seller shall indemnify, hold harmless,
and at COMPANY's request, defend COMPANY, its officers, directors,
customers, agents and employees, against all claims, liabilities, damages,
losses, and expenses, including attorneys' fees and cost of suit arising out
of or in any way connected with the Goods or Services provided under this
Agreement, including, without limitation, (i) any claim based on the death
or bodily injury to any person, destruction or damage to property, or
contamination of the environment and any associated clean up costs, (ii)
Seller failing to satisfy the Internal Revenue Service’s guidelines for an
independent contractor, (iii) any claim based on the negligence, omissions,
or willful misconduct of Seller or any Seller’s Assistants, and (iv) any
claim by a third party against COMPANY alleging that the Goods or Services,
the results of such Services, or any other products or processes provided
under this Agreement, infringe a patent, copyright, trademark, trade secret,
or other proprietary right of a third party, whether such are provided alone
or in combination with other products, software, or processes. Seller shall
not settle any such suit or claim without COMPANY's prior written approval.
Seller agrees to pay or reimburse all costs that may be incurred by COMPANY
in enforcing this indemnity, including attorneys' fees.
Should COMPANY’s use, or use by its distributors, subcontractors, or
customers, of any Goods or Services purchased from Seller be enjoined, be
threatened by injunction, or be the subject of any legal proceeding, Seller
shall, at its sole cost and expense, either (a) substitute fully equivalent
non-infringing Goods or Services; (b) modify the Goods or Services so that
they no longer infringe but remain fully equivalent in functionality; (c)
obtain for COMPANY, its distributors, subcontractors, or customers the right
to continue using the Goods or Services; or (d) if none of the foregoing is
possible, refund all amounts paid for the infringing Goods or Services.
12. CONFIDENTIALITY. Seller will acquire knowledge of
COMPANY Confidential Information (as defined below) in connection with its
performance hereunder and agrees to keep such COMPANY Confidential
Information in confidence during and following termination or expiration of
this Agreement. "COMPANY Confidential Information" includes but is not
limited to all information, whether written or oral, in any form, including
without limitation, information relating to the research, development,
products, methods of manufacture, trade secrets, business plans, customers,
vendors, finances, personnel data, Work Product (as defined herein), and
other material or information considered proprietary by COMPANY relating to
the current or anticipated business or affairs of COMPANY which is disclosed
directly or indirectly to Seller. In addition, COMPANY Confidential
Information means any third party's proprietary or confidential information
disclosed to Seller in the course of providing Services or Goods to COMPANY.
COMPANY Confidential Information does not include any information (i) which
Seller lawfully knew without restriction on disclosure before COMPANY
disclosed it to Seller, (ii) which is now or becomes publicly known through
no wrongful act or failure to act of Seller, (iii) which Seller developed
independently without use of the COMPANY Confidential Information, as
evidenced by appropriate documentation, or (iv) which is hereafter lawfully
furnished to Seller by a third party as a matter of right and without
restriction on disclosure. In addition, Seller may disclose Confidential
Information which is required to be disclosed pursuant to a requirement of a
government agency or law so long as Seller provides prompt notice to COMPANY
of such requirement prior to disclosure.
Seller agrees not to copy, alter, or directly or indirectly disclose any
COMPANY Confidential Information. Additionally, Seller agrees to limit its
internal distribution of COMPANY Confidential Information to Seller's
Assistants who have a need to know, and to take steps to ensure that the
dissemination is so limited, including the execution by Seller's Assistants
of nondisclosure agreements with provisions substantially similar to those
set forth herein. In no event will Seller use less than the degree of care
and means that it uses to protect its own information of like kind, but in
any event not less than reasonable care to prevent the unauthorized use of
COMPANY Confidential Information.
Seller further agrees not to use the COMPANY Confidential Information
except in the course of performing hereunder and will not use such COMPANY
Confidential Information for its own benefit or for the benefit of any third
party. The mingling of the COMPANY Confidential Information with information
of Seller shall not affect the confidential nature or ownership of the same
as stated hereunder. Seller agrees not to design or manufacture any products
which incorporate COMPANY Confidential Information. All COMPANY Confidential
Information is and shall remain the property of COMPANY. Upon COMPANY's
written request or the termination of this Agreement, Seller shall return,
transfer, or assign to COMPANY all COMPANY Confidential Information,
including all Work Product, as defined herein, and all copies thereof.
13. OWNERSHIP OF WORK PRODUCT. For purposes of this
Agreement, "Work Product" shall include, without limitation, all designs,
discoveries, creations, works, devices, masks, models, work in progress,
Service deliverables, inventions, products, computer programs, procedures,
improvements, developments, drawings, notes, documents, information and
materials made, conceived, or developed by Seller, alone or with others,
which result from or relate to the Services performed hereunder. Standard
Goods manufactured by Seller and sold to COMPANY without having been
designed, customized, or modified for COMPANY do not constitute Work
Product. All Work Product shall at all times be and remain the sole and
exclusive property of COMPANY. Seller hereby agrees to irrevocably assign
and transfer to COMPANY and does hereby assign and transfer to COMPANY all
of its worldwide right, title, and interest in and to the Work Product
including all associated intellectual property rights. COMPANY will have the
sole right to determine the treatment of any Work Product, including the
right to keep it as trade secret, execute and file patent applications on
it, to use and disclose it without prior patent application, to file
registrations for copyright or trademark in its own name, or to follow any
other procedure that COMPANY deems appropriate. Seller agrees: (a) to
disclose promptly in writing to COMPANY all Work Product in its possession;
(b) to assist COMPANY in every reasonable way, at COMPANY's expense, to
secure, perfect, register, apply for, maintain, and defend for COMPANY's
benefit all copyrights, patent rights, mask work rights, trade secret
rights, and all other proprietary rights or statutory protections in and to
the Work Product in COMPANY’s name as it deems appropriate; and (c) to
otherwise treat all Work Product as COMPANY Confidential Information as
described above. These obligations to disclose, assist, execute, and keep
confidential survive the expiration or termination of this Agreement. All
tools and equipment supplied by COMPANY to Seller shall remain the sole
property of COMPANY.
Seller will ensure that Seller's Assistants appropriately waive any and
all claims and assign to COMPANY any and all rights or any interests in any
Work Product or original works created in connection with this Agreement.
Seller irrevocably agrees not to assert against COMPANY or its direct or
indirect customers, assignees, or licensees any claim of any intellectual
property rights of Seller affecting the Work Product.
COMPANY will not have rights to any works conceived or reduced to
practice by Seller which were developed entirely on Seller's own time
without using equipment, supplies, facilities, or trade secret or COMPANY
Confidential Information, unless (i) such works relate to COMPANY's
business, or COMPANY's actual or demonstrably anticipated research or
development, or (ii) such works result from any Services performed by Seller
for COMPANY.
14. NONINTERFERENCE WITH BUSINESS. During and for a
period of two years immediately after the termination or expiration of this
Agreement, Seller agrees not to unlawfully interfere with the business of
COMPANY in any manner, and further agrees not to solicit or induce any
employee or independent contractor to terminate or breach an employment,
contractual, or other relationship with COMPANY.
15. TERMINATION. COMPANY may terminate this Agreement
upon written notice to Seller if Seller fails to perform or otherwise
breaches this Agreement, files a petition in bankruptcy, becomes insolvent,
or dissolves. In the event of such termination, COMPANY shall pay Seller for
the portion of the Services satisfactorily performed and those conforming
Goods delivered to COMPANY through the date of termination, less appropriate
offsets, including any additional costs to be incurred by COMPANY in
completing the Services.
COMPANY may terminate this Agreement for any other reason upon thirty (30)
days' written notice to Seller. Seller shall cease to perform Services
and/or provide Goods under this Agreement on the date of termination
specified in such notice. In the event of such termination, COMPANY shall be
liable to Seller only for those Services satisfactorily performed and those
conforming Goods delivered to COMPANY through the date of termination, less
appropriate offsets.
Seller may terminate this Agreement upon written notice to COMPANY if
COMPANY fails to pay Seller within sixty (60) days after Seller notifies
COMPANY in writing that payment is past due.
Upon the expiration or termination of this Agreement for any reason: (a)
each party will be released from all obligations to the other arising after
the date of expiration or termination, except for those which by their terms
survive such termination or expiration; and (b) Seller will promptly notify
COMPANY of all COMPANY Confidential Information or any Work Product in
Seller’s possession and, at the expense of Seller and in accordance with
COMPANY’s instructions, will promptly deliver to COMPANY all such COMPANY
Confidential Information and/or Work Product.
16. REMEDIES. If Seller breaches this Agreement, COMPANY
shall have all remedies available by law and at equity. For the purchase of
Goods, Seller’s sole remedy in the event of breach of this Agreement by
COMPANY shall be the right to recover damages in the amount equal to the
difference between market price at the time of breach and the purchase price
specified in the Agreement. No alternate method of measuring damages shall
apply to this transaction. Seller shall have no right to resell Goods for
COMPANY’s account in the event of wrongful rejection, revocation of
acceptance, failure to make payment or repudiation by COMPANY and any resale
so made shall be for the account of Seller.
17. FORCE MAJEURE. COMPANY shall not be liable for any
failure to perform including failure to (i) accept performance of Services
or, (ii) take delivery of the Goods as provided caused by circumstances
beyond its control which make such performance commercially impractical
including, but not limited to, acts of God, fire, flood, acts of war,
government action, accident, labor difficulties or shortage, inability to
obtain materials, equipment, or transportation. In the event COMPANY is so
excused, either party may terminate the Agreement and COMPANY shall at its
expense and risk, return any Goods received to the place of shipment.
18. ATTORNEYS' FEES. In any action to enforce this
Agreement, the prevailing party shall be entitled to recover all court costs
and expenses and reasonable attorneys' fees, in addition to any other relief
to which it may be entitled.
19. SEVERABILITY. If any provision of this Agreement
shall be deemed to be invalid, illegal or unenforceable, the validity,
legality, and enforceability of the remaining provisions shall not in any
way be affected or impaired thereby.
20. LIMITATION OF LIABILITY. IN NO EVENT SHALL COMPANY
BE LIABLE TO SELLER OR SELLER'S ASSISTANTS, OR ANY THIRD PARTY FOR ANY
INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR
IN CONNECTION WITH, THIS AGREEMENT, WHETHER OR NOT COMPANY WAS ADVISED OF
THE POSSIBILITY OF SUCH DAMAGE, AND WHETHER OR NOT THERE IS A FAILURE OF ANY
AGREED REMEDY.
21. ASSIGNMENT; WAIVER. Seller may not assign this
Agreement or any of its rights or obligations under this Agreement, without
the prior written consent of COMPANY. Any assignment or transfer without
such written consent shall be null and void. Waivers of any default
hereunder or of any term or condition of this Agreement shall not be deemed
to be a continuing waiver or a waiver of any other default or any other term
or condition.
22. NONEXCLUSIVE AGREEMENT. This is not an exclusive
agreement. COMPANY is free to engage others to perform Services or provide
Goods the same as or similar to Seller's. Seller is free to, and is
encouraged to, advertise, offer, and provide Seller's Services and/or Goods
to others; provided however, that Seller does not breach this Agreement.
23. NOTICES. All notices, and other communications
hereunder shall be in writing, and shall be addressed to Seller or to an
authorized COMPANY representative, and shall be considered given when (a)
delivered personally, (b) sent by confirmed electronic transmission or
facsimile, (c) sent by commercial overnight courier with written
verification receipt, or (d) three (3) days after having been sent, postage
prepaid, by first class or certified mail.
24. SURVIVAL OF OBLIGATIONS. Any obligations and duties
which by their nature extend beyond the expiration or termination of this
Agreement shall survive the expiration or termination of this Agreement.
25. GOVERNING LAW. This Agreement shall be construed in
accordance with, and disputes shall be governed by, the laws of the State of
Ohio, excluding its conflict of law rules. Jurisdiction and venue over all
controversies arising out of, or relating to, this Agreement shall be in
Montgomery County, Ohio. The applicability of the UN Convention on Contracts
for the International Sale of Goods is hereby expressly waived by the
parties and it shall not apply to the terms and conditions of this
Agreement.
26. ENTIRE AGREEMENT; MODIFICATION. This Agreement is
the complete, final, and exclusive statement of the terms of the agreement
between the parties and supersedes any and all other prior and
contemporaneous negotiations and agreements, whether oral or written,
between them relating to the subject matter hereof. This Agreement may not
be varied, modified, altered, or amended except in writing, including a
purchase order or a change order issued by COMPANY, signed by the parties.
The terms and conditions of this Agreement shall prevail notwithstanding any
variance with the terms and conditions of any acknowledgment or other
document submitted by Seller. Notwithstanding the foregoing, this Agreement
will not supersede or take the place of any written agreement which is
signed by both parties and covers the same subject matter as this Agreement
or its related purchase orders.
27. COMPLIANCE WITH LAWS.
27.1 General: Seller shall comply fully with all
applicable federal, state, and local laws and regulations in the performance
of this Agreement including, but not limited to, all applicable employment,
labor, tax, export control, and environmental laws; including working
conditions, employee health and safety, hiring and discrimination, building
and fire codes, OSHA training and compliance, workers compensation
compliance
27.2 Business Ethics: Seller shall operate business in
an ethical manner that will detect and prevent corruption both internally
with employees and contractors and externally with companies and
governmental authorities, employees, or other representatives. Seller shall
notify Company of known potential conflicts of interest between parties
involved in supplying Goods or Services required by this order
27.3 Hazardous Materials: If Goods include hazardous
materials, Seller represents and warrants that Seller understands the nature
of any hazards associated with the manufacture, handling, and transportation
of such hazardous materials. Seller shall notify Company of any potentially
hazardous material included in Sellers product prior to acceptance of order
and prior to shipment of material to Company.
27.4 Customs: Upon COMPANY’s request, Seller will
promptly provide COMPANY with a statement of origin for all Goods and United
States Customs documentation for Goods wholly or partially manufactured
outside of the United States.
28. INJUNCTIVE RELIEF. Seller acknowledges and agrees
that the obligations and promises of Seller under this Agreement are of a
unique, intellectual nature giving them particular value. Seller's breach of
any of the promises contained in this Agreement will result in irreparable
and continuing damage to COMPANY for which there will be no adequate remedy
at law and, in the event of such breach, COMPANY will be entitled to seek
injunctive relief, or a decree of specific performance.
End of Document.
