Terms and Conditions of Purchase
ACCEPTANCE: These Terms and Conditions shall govern the purchase of products and services (collectively, “Products”) pursuant to Purchase Orders issued to Seller by Foster Transformer Company, Inc. (“Buyer”). These Terms and Conditions may be amended by mutual agreement of the parties, which may be evidenced by exchange of written communications. This order is not binding upon Buyer until accepted by Seller. Acceptance of all terms and conditions of this Purchase Order (“Order”) shall take place when (a) Buyer receives the acknowledgment copy of this Order, properly executed by the Seller, or (b) Seller delivers to Buyer the Products.
ACCEPTANCE OF THIS ORDER IS EXPRESSLY LIMITED TO THE TERMS HEREOF. ANY ADDITIONAL TERMS ON ANY SELLER FORM ARE OBJECTED TO AND REJECTED, AND SHALL NOT BE BINDING ON OR ENFORCEABLE AGAINST BUYER. IN THE EVENT OF INCONSISTENCY BETWEEN THE TERMS OF THIS ORDER AND ANY PURPORTED ACCEPTANCE, THE TERMS OF THIS ORDER SHALL PREVAIL.
PRICE: It is agreed unless otherwise provided, (a) the within stated price (“Purchase Price”) is a firm price; (b) the Purchase Price shall be all-inclusive and shall include all taxes on items ordered hereby; (c) the price as herein stated shall include all costs for transporting and insuring the items ordered to the Buyer’s dock; and (d) the Purchase Price is not less favorable than that extended to any other customer for the same or similar Products in equal or lesser quantities.
PAYMENT TERMS: Buyer will remit payment of the Purchase Price (less any applicable discounts or offsets) for each Conforming Product according to terms stipulated on the face of this purchase order or if no terms are stipulated within 60 days of invoice date, provided that the Invoice Date shall not be earlier than the date the Products are actually shipped by Seller.
EXTRA CHARGES: No extra charges of any kind including charges for packing or cartage will be allowed unless specifically agreed to by Buyer in advance.
DELIVERY: Seller shall pack, mark and ship all Products to Buyer in new condition using good commercial practices and the most advantageous transportation service and rates. Seller shall convey to Buyer good title, free and clear of all liens and other security interests. Unless otherwise specified on the face of this Order, the F.O.B. point shall be Buyer’s location designated on the face of this Order. If transportation is F.O.B. Seller’s location, Seller shall bear all risk of loss or damage to the Products, and title shall not shift to the Buyer, until delivery of the Products to the carrier. If transportation is F.O.B. to Buyer’s location, Seller shall bear all risk of loss or damage to the Products, and title shall not shift to Buyer until delivery of the Products to Buyer’s location. Delivery shall be in accordance with the schedule set forth in this order, provided, however, Seller shall not be liable for any delay or failure to perform its obligation resulting directly or indirectly from causes beyond its reasonable control, such as strikes and acts of God. If Seller fails to deliver Products in accordance with the lead time specified in these Terms and Conditions or the applicable Purchase Order, then Seller will be responsible for all premium freight charges and any other associated costs required to supply Products to Buyer as soon as possible.
CANCELLATION OF PURCHASE ORDERS: Buyer may cancel any Purchase Order, in whole or in part, without further obligation or liability to Seller, at any time prior to Seller’s shipment of the Products covered by such Purchase Order by providing Seller written or electronic notice of such cancellation.
WARRANTIES: By accepting this order Seller warrants (“Performance Warranty”) that the items to be furnished hereunder will be (a) in full compliance with Buyer’s specifications, blueprints, drawings, and data or Seller’s samples, if any; (b) fit for the use intended by the Buyer, (c) free from defects in materials, workmanship, and design; and (d) free from any actual or claimed patent, copyright, or trademark infringement. Seller warrants title to the Products. Notwithstanding anything contained herein to the contrary, Buyer may, at its option, assign or otherwise transfer any warranty, in whole or in part, on any particular Products to any of Buyer’s customers; whereupon (a) such customer may enforce the Warranty against Seller on, in, and for such customer’s own behalf, name, and benefit, and (b) Buyer may enforce such Warranty against Seller on, in, and for Buyer’s or such customer’s behalf, name or benefit.
Seller agrees the warranties herein contained shall (a) be in addition to any warranties (i) implied by law; (ii) expressly made by Seller other than hereunder, and (iii) survive acceptance and payment by Buyer.
The warranty period (“Warranty Period”) is for one year after delivery unless otherwise stated on the face of the order.
During the Warranty Period, Seller shall, at no additional cost to Buyer, credit or replace at Buyer’s option any Product that fails to conform to its Performance Warranty in any respect whatsoever (“Defective Product”). If Buyer’s option is for credit, Seller shall grant Buyer a credit equal to the full amount of the Purchase Price originally paid for the Product. If Buyer’s option is to replace such Product, the replacement Product must conform to the Performance Warranty in all respects. Replacement Product must be new product; no repaired product will be accepted. Seller shall replace, at the Buyer’s option, each Defective Product and redeliver a Conforming Product to Buyer as soon as possible, and in all events no later than five (5) days of Seller’s receipt of each Defective Product. In the event Seller fails to do so, Buyer shall be entitled to an immediate and full refund of the Purchase Price paid to Seller for such Defective Product. All return shipments of Defective Products to Seller shall be at Seller’s sole cost, risk, and expense. Seller shall bear all reasonable direct costs and expenses incurred by Buyer to replace a Defective Product with a Conforming Product, including, but not limited to, labor and travel expenses. Buyer has the right to return Product on a per occurrence basis. No minimum quantity shall be required for returns. At the end of the Warranty Period the Seller will make available to Buyer any technical documentation (including schematic diagrams), repair parts and training for Buyer technicians as may be reasonably required to permit Buyer to maintain and repair the Products.
TOOLS: Tools, dies, molds, and patterns of all kinds manufactured or purchased for Buyer and held by Seller for making Buyer’s parts must be repaired, renewed, and fully insured by Seller against possible loss or damage. Seller shall protect and indemnify Buyer from any loss or damage to such items. The cost of changes in such items necessary to effect design or specification changes ordered by Buyer shall be paid for by Buyer. Buyer shall have the right to take possession of and title to any such items that are special for the production of Buyer’s parts and goods covered by this order upon payment to Seller of the unamortized cost thereof; provided, however, that no further payment to Seller shall be required if Buyer previously paid for or reimbursed Seller for the cost of the items.
INSPECTION: All Products shall be subject to Buyer’s inspection and approval at any place that Buyer may reasonably designate prior to acceptance and payment of the Purchase Price. Any Product requiring installation shall not be deemed finally accepted until Buyer establishes that such Product conforms to the Performance Warranty through installation, inspection, or use thereof. The Performance Warranty on each Product shall survive any testing, inspection, delivery, payment, and acceptance of any Product by Buyer. Buyer expressly reserves, without liability hereunder or otherwise, to reject and refuse acceptance of items which do not conform in all respects to (a) any instructions contained herein, (b) Seller’s approved samples; and (c) Seller’s warranties. No inspection, tests approval, or acceptance of the Product shall relieve Seller from responsibility for any defects in the Product or other failures to meet the requirements of this order, or for latent defects, fraud, or such gross mistakes as amount to fraud.
EXCESS AND PREMATURE PRODUCT: Buyer shall not be obligated to accept or pay for: (a) any Products in excess of the quantity ordered in its Purchase Order (“Excess Product”); (b) Products that have been discontinued in transit, or (c) deliveries arriving more than five (5) days in advance of the Delivery Date specified on the Purchase Order (“Premature Products”).
RIGHTS AND REMEDIES: No payment shall be due hereunder for any amount invoiced for any Defective Product, Excess Product, Premature Product, or any Product not received at the Delivery Location by the Delivery Date. Nothing herein shall limit Buyer’s right to cancel Purchase Orders for Defective Products and undelivered Products hereunder or Buyer’s right to revoke its acceptance of any Defective Product under this Agreement or applicable law. All of Buyer’s rights and remedies under this Section for Defective Products shall be in addition to, and cumulative with, Buyer’s other rights and remedies under this Agreement, at law, or in equity.
CHANGES: Buyer reserves the right to change any one or more of the following; (a) specifications, drawings, blueprints, and data incorporated in this order where the items to be purchased are to be specifically manufactured for the Buyer; (b) method of packaging, packing, or shipment, and (c) place and/or time of delivery. If any such change causes an increase or decrease in the cost of or the time required for the performance hereunder, an equitable adjustment shall be made in the price or delivery schedule, or both. Any claim for adjustment by the Seller shall be deemed waived unless asserted in writing within thirty (30) days from the receipt by Seller of the change. Nothing contained in this clause shall relieve Seller from its obligation to proceed without delay in the performance of this order as changed.
INDEMNIFICATION: Seller agrees to defend, indemnify and hold Buyer harmless from and against damages, losses, claims, costs and expenses (including reasonable attorney fees) related to any third party claims against Buyer arising out of (a) any allegation that any Product infringes any patent, copyright, trademark, trade secret or other intellectual property right of a third party and (b) any personal injury, wrongful death or property damage (including, without limitation, to the property or employees of Buyer) alleged to have been caused by the negligence of Seller or a defect in a Product. Buyer shall give Seller prompt notice of any such claims (“Claims”), and permit Seller to control the defense and settlement of Claims, and reasonably cooperate with Seller in connection with the defense and settlement of Claims. The foregoing indemnification obligations shall not be limited by the amount or existence of insurance maintained or provided by Seller.
PROPRIETARY INFORMATION: Seller and Buyer shall treat as confidential all specifications, drawings, blueprints, and data supplied by Buyer (“Data”). Such Data shall remain the property of Buyer and shall not be used for any purpose other than the production for the Buyer. All Data shall be returned to Buyer promptly upon Buyer’s request. Seller shall not disclose any information relating to this order to any third person without the other party’s consent.
TERMINATION: For the purposes of this paragraph the following definitions shall apply: “Complete Work” shall mean all Products completed in accordance herewith for which Seller shall not have received payment as of the date of termination. “Work in Progress” shall mean all Products upon which work shall have commenced but which are not completed items as of the date of termination. “Terminated Work” shall mean all Products ordered hereunder upon which work had not commenced as of the date of termination. “Material” shall mean all goods, supplies, and services required to be furnished by Seller for the completion of the Product ordered hereunder.
(a) Buyer may terminate this order, in whole or in part, at any time upon notice to Seller. Upon receipt of such notice, unless otherwise directed by Buyer, Seller shall (i) stop work under this order to the extent specified; (ii) terminate all orders and subcontracts to the extent that they relate to terminated work; (iii) place no further orders for materials except as they are required to complete work in progress, if required, and non-terminated work, if any, and at Buyer’s election; (iv) complete the work in progress and non-terminated work, if any, in accordance herewith.
(b) Upon termination and subject to Buyer’s direction and approval, Seller shall (i) settle all claims with subcontractors and suppliers arising from such termination and (ii) use its best efforts to sell the material relating to the terminated work or in Seller’s sole discretion retain the material.
(c) Not later than three months after termination, Seller shall submit a termination claim (herein, the “Claim”) to Buyer, in the form prescribed by Buyer setting forth the proposed amounts due Seller as a consequence of the termination. If Seller fails to submit the Claim within such time, Buyer may independently determine the amount due Seller, if any, and such determination shall be final. Upon submission of a timely Claim by Seller, and if the parties fail to agree upon all or any part of such amount within a reasonable time, Buyer shall, but only with respect to any part as to which there is no dispute, pay to Seller that amount (herein the “Termination Payment”) equal to the costs incurred by Seller (i) prior to notification of termination in anticipation of performing the Terminate Work, including claims arising from the termination of contracts made with third parties to complete the Terminated Work, to the extent such costs so incurred are not limited on the face hereof, and (ii) Less the aggregate of (X) all payments, if any, made to Seller on account of the Terminated Work and materials purchased by Seller prior to the effective date of termination. (Y) any claim which the Buyer may have against the Seller in connection with this order and (Z) the agreed price or proceeds of sale of any material allocable to the Terminated Work or a sum equal to cost to Seller of all material retained by Seller. In no event shall Buyer’s obligations to Seller, as a consequence of the termination exceed the aggregate purchase price of the items as stated on the face hereof or the Termination Payment whichever is the lesser amount, and upon payment thereof, Buyer shall have no further obligations to Seller hereunder or otherwise.
(d) All determinations required hereby shall be made by generally accepted accounting principles. Seller shall make his premises available to Buyer at any time after termination and prior to settlement for the purpose of inspection by Buyer of Seller’s inventory, work in progress, books, records, documents and other evidence bearing on the Termination Payment.
COMPLIANCE WITH LAWS: Seller shall comply with all federal, state, or local law, ordinance, rules and regulations in the manufacture and sale of the Products, including, but not limited to, the Occupational Safety and Health Act, the Truth 1 Negotiation Act, all applicable provision of the Fair Labor Standards Act, and all provisions of Executive Order No. 11246 of September 24, 1965, and all rules, regulations, and relevant orders of the Secretary of Labor related to equality of employment opportunity which Executive Order, regulations and orders are incorporated herein by reference.
GENERAL
(a) If this order is given pursuant to any existing contract, it is also subject to the terms of such contract. In the event of any conflict with the provisions hereof, the contract terms shall control.
(b) Seller shall not assign this order nor delegate its performance hereunder without the written consent of Buyer.
(c) Waiver by either party of any default by the other hereunder shall not be deemed a waiver by such party of any other default.
(d) Seller shall not change this order nor ship non-conforming items without first obtaining the written consent of Buyer.
(e) If at Buyer’s request any research and development is performed with respect to any of the items sold hereunder or in anticipation hereof which results in any patents, trademarks, or copyrights, title thereto shall vest in Buyer.
(f) This order shall be governed by and construed in accordance with the laws of the State of Ohio, without reference to its choice of law rules. Any claim or litigation brought under or relating to this Agreement shall be brought in a court of competent jurisdiction located in Hamilton County, Ohio.
(g) These Terms and Conditions, together with Purchase Orders issued hereunder, constitute the final and entire agreement between Buyer and Seller with respect to the purchase of the Products and supersede any terms and conditions in any acknowledgement form, invoice or other document of Seller. These Terms and Conditions may be amended only by a written instrument duly executed by both parties, and may not be amended orally or by the course of performance.