means Duraco Specialty Tapes LLC and its designated representatives and successors and assigns. “Seller” means the person, firm, corporation or other business entity indicated on the face of this order.
2. Acceptance of Terms.
Seller’s written acceptance of this order, or commencement of the work or services under this order, or the shipment of goods under this order, shall be deemed acceptance of these terms and conditions and Seller’s agreement to be bound thereby.
3. Inconsistent Terms.
In the event of any inconsistency, ambiguity, or conflict among the terms and conditions of this order, the inconsistency, ambiguity, or conflict shall be resolved by giving the contract documents the following order of priority: (1) the terms and conditions on the face of this order, (2) any terms and conditions expressly incorporated by reference on the face of this order, and (3) these terms and conditions. Any forms used by Seller to acknowledge this order shall be for administrative purposes only and shall have no force or effect on this order. All additional or different terms submitted by Seller are expressly rejected and shall not apply to this order. No addition to or modification of these terms and conditions shall be binding on Buyer unless specifically agreed to by Buyer in writing. These terms and conditions may not be supplemented or changed by any course of performance, course of dealing, or trade usage.
Buyer may at any time and from time to time, by written notice to Seller, make changes in, additions to, or deletions from these terms and conditions. If any such change increases or decreases the time required for Seller’s performance, an equitable adjustment shall be made in the schedule for such performance if one is attached to or included on the face of this order. If any such change increases or decreases Seller’s cost of performance, then there shall be an equitable adjustment in the price. Seller’s right to an equitable adjustment in the price or schedule, or both, as a result of any change made by Buyer under this Section 4 is expressly conditioned on Seller providing Buyer written notice of a request for such adjustment within 10 days after receiving Buyer’s notice of change. Seller shall proceed with its performance, as changed, pending agreement upon an equitable adjustment in the price or schedule, or both, and shall not halt or delay performance because of any failure to so agree.
5. Price; Title.
If this order is for the purchase of goods, all prices are for goods delivered F.O.B. Buyer’s facility set forth on the face of this order. Except as may be specifically stated otherwise on the face of this order, the prices specified represent the full and complete compensation for all profit, labor, supervision, materials, overhead and other costs associated with the manufacture, sale and delivery of the goods, including all excise, value added, privilege or similar taxes, but exclusive of any sales and use tax that may be applicable on the sale of the goods. Except as provided in Section 12 below, title and risk of loss for the goods shall pass to Buyer upon receipt thereof at Buyer’s facility set forth on the face of this order.
Buyer shall not be required to pay for goods delivered in excess of the quantities specified on the face of this order.
7. Time of Essence.
Time is of the essence with respect to this order. All goods shall be delivered and all services performed within the time or times specified on the face of this order, except to the extent excused under Section 19 below. Seller’s failure to perform within the specified times shall be deemed a material breach of this order. Notwithstanding the foregoing, if Seller fails to meet Buyer’s delivery schedule as stated in this order and such failure is not excused under Section 19 below, and Buyer determines, in its sole discretion, that Buyer requires a more expeditious form of transportation than stated on the face of this order to account for Seller’s delay, Seller shall deliver the goods as expeditiously as possible at Seller’s expense. Buyer may change the rate of scheduled shipments or direct temporary suspension of scheduled shipments and Seller shall not be entitled to an equitable adjustment to the price due to such changes.
8. Right to Inspect.
Payment before inspection shall not constitute acceptance of any defective goods. Buyer may, but need not, inspect the goods covered by this order at all reasonable times and places during their manufacture and before and after delivery. All goods shall be subject to final inspection by Buyer and acceptance upon receipt at Buyer’s facility set forth on the face of this order.
Seller shall, at no additional cost to Buyer, package all shipments of goods in accordance with the requirements specified in this order or, if no such requirements are specified, in accordance with standard commercial practices. Each shipment shall contain a packing list indicating purchase order number, item numbers, and other identifying information corresponding to that set forth on the face of this order.
Prior to shipment, each package containing goods to be delivered under this order shall be clearly marked with Buyer’s purchase order number, shipping symbols, serial numbers, weights, measurements and other means of identification as Buyer may be direct or as may reasonably be necessary to facilitate proper delivery.
11. Invoices and Payment.
(a) Seller may submit invoices to Buyer upon delivery of the goods or completion of services that are the subject of this order. All proper invoices shall be payable 45 days after Buyer’s receipt thereof. If Buyer is required to pay freight charges they must be shown as a separate item on the invoice and the paid freight bill or receipt must be attached to the invoice. If Buyer disputes any portion of an invoice, Buyer shall be entitled to pay the undisputed portion only without incurring liability to Seller for nonpayment.
(b) Buyer’s delay in receiving accurate invoices will be cause for withholding payment without loss of any cash discount privilege. Discount periods will begin when Buyer receives the invoice in question at Buyer’s address indicated on the face of this order.
(c) If Seller breaches any portion of this order, or if any person or entity asserts a claim or lien against Buyer’s property or facilities arising out of Seller’s performance hereunder, Buyer shall have the right to retain out of any payments due or to become due to Seller an amount sufficient to protect Buyer completely from all claims, losses, damages and expenses (including reasonable attorneys’ fees), until the breach has been cured or the claim or lien has been satisfied, terminated, released, or otherwise removed to Buyer’s satisfaction. Buyer’s right to withhold monies under this Section 11 shall be in addition to other rights and remedies available to Buyer under this order, at law, or in equity.
12. Title and Special Interests.
If Buyer makes full or partial payment to Seller before Seller delivers all goods or completes all services under this order, Seller shall (a) segregate goods for delivery to Buyer (or components thereof) from other goods it may maintain in its inventories and shall identify such goods as being dedicated to the performance of this order, or (b) reserve adequate personnel and materials to ensure prompt completion of the services under this order, in each case in a manner sufficient to provide and protect Buyer’s special interest in such goods or services. In addition, title to all such goods shall pass to Buyer, and Seller shall be deemed a bailee of all goods remaining in its possession; in no event, however, shall the risk of loss pass to Buyer until the goods are delivered to the destination specified herein. Seller agrees to maintain property insurance coverage in types and amount satisfactory to Buyer for all such goods, such insurance to name Buyer as loss payee as its interest may appear.
13. Compliance with Laws, Regulations and Codes.
Seller warrants that all goods furnished under this order will comply with, and be manufactured, priced, sold and labeled in compliance with, all applicable U.S. and foreign federal, state and local laws, codes, rules, regulations, orders and ordinances relating to the manufacture, labeling, transportation, importation, exportation, licensing, approval or certification of the goods and services, including, without limitation, environmental protection, energy and labor laws and regulations and applicable industry codes and standards. Without limiting the generality of the above, this order may be subject to the equal employment opportunity and affirmative action provisions of Executive Order 11246; Section 503 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 793); and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended (38 U.S.C. 4212). To the extent required by law, this order incorporates by reference the provisions contained in the regulations of the Office of Federal Contract Compliance Programs in the “Equal Employment Opportunity” clause, 41 CFR 60-1.4(a)(1)-(7), the “Affirmative Action for Disabled Workers” clause, 41 CFR 60-741.5(a)-(f), and the “Affirmative Action for Disabled Veterans and Veterans of the Vietnam Era” clause, 41 CFR 60-300.5(a). These clauses, if applicable, are to be applied in conformity with Seller’s obligations under Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000e et seq.). In addition, and without limiting the above requirements, all goods furnished under this order and services provided under this order shall conform to the requirements of the Occupational Safety and Health Act of 1970, the Construction Safety Act of 1969, all regulations under such acts, and all other applicable U.S. and foreign federal, state and local laws, regulations, and standards relating to safety and health.
14. Disclosure of Ingredients; Warnings.
If requested by Buyer, Seller shall promptly furnish to Buyer, in the form and with such detail as Buyer may reasonably direct, (a) a list of all ingredients and materials contained in the goods and the amount of such ingredients and materials, and (b) information regarding any changes in or additions to such ingredients and materials. Prior to and with each shipment of goods, Seller shall provide Buyer sufficient notice and warning in writing (including, but not limited to, appropriate labels on the goods, containers and packing) of any hazardous material that is an ingredient in the goods or a part of the goods, together with safety data sheets as required by applicable law or as requested and special handling instructions as may be necessary to advise carriers, Buyer, and their respective employees of the proper handling, transportation, processing, use or disposal of the goods, containers and packing delivered to Buyer.
15. Tools and Materials; Safety Requirements.
(a) If services under this order will be performed on Buyer’s premises, Seller shall be responsible for and shall bear the risk of loss of its materials, tools and equipment while on Buyer’s premises, unless such loss or damage results solely from Buyer’s negligence or willful misconduct.
(b) Seller shall require all subcontractors and agents engaged in the performance of the services to waive all liability against Buyer for lost or damaged materials, tools or equipment and shall indemnify Buyer against claims, liabilities or costs in connection with lost or damaged materials, equipment or tools belonging to Seller’s subcontractors or agents; provided, however, nothing herein shall require Seller to indemnify Buyer against claims, liabilities or costs demonstrated by Seller to have resulted solely from Buyer’s negligence or willful misconduct.
(c) Seller is responsible for the safety and supervision of its employees, subcontractors and agents while they are working at Buyer’s premises, and Seller shall take immediate action to halt and fix any non-compliance by Seller’s employees, subcontractors and agents.
(d) Seller is responsible for keeping all areas where the services are to be performed clean and orderly to Buyer’s reasonable satisfaction. If Buyer incurs any costs to clean Seller’s work area or to remove Seller’s tools or debris from Buyer’s premises, Buyer may deduct those costs from any amounts due Seller under this order. Buyer agrees to provide reasonable access to Buyer’s premises for Seller’s employees, provided they comply with all security, safety and environmental requirements communicated by Buyer to Seller.
(a) If this order is for the purchase of goods, Seller warrants and guarantees that each item of the goods shall (a) be new and shall conform strictly to the description and specifications, if any, contained or referenced on the face of this order, (b) conform to these terms and conditions, and (c) be free from defects in design, workmanship and materials.
(b) If this order is for the purchase of services, Seller represents and warrants that the services shall (a) be performed in a good and workmanlike manner and in strict accordance with any specifications contained or referenced on the face of this order, (b) conform to these terms and conditions, and (c) reflect the level of skill, knowledge and judgment required or reasonably expected of suppliers performing comparable services. Seller also represents and warrants that (x) Seller shall comply with all applicable federal, state and local laws, codes, rules, regulations, orders and ordinances bearing on the performance of the services, (y) Seller shall not delegate or subcontract all or any part of the services without Buyer’s prior written consent, and (z) all materials used in connection with the services will be new, unless otherwise expressly approved by Buyer in advance.
(c) If, during the applicable period specified below, Buyer discovers that any item of the goods supplied or services performed by Seller hereunder fails to conform to the above warranties, then Seller shall, at Buyer’s option and without further compensation to Seller, promptly repair, replace or modify any item of the goods or correct or re-perform any service so that it conforms to the above warranties. Unless otherwise specified on the face of this order, Buyer shall give Seller written notice of (i) the nonconformity of any goods within 60 days after Buyer discovers or receives notice of the nonconformity, or (ii) the nonconformity of the services provided within one year after the date of substantial completion of the services, as applicable. Seller shall provide all labor, engineering, supervision, equipment, tools and materials necessary to effect the remedy and shall bear all expenses in connection therewith, including transportation costs. Seller shall perform its remedial obligations hereunder in a timely manner consistent with Buyer’s reasonable requirements. If Seller is unable to remedy the nonconformity during a time period consistent with Buyer’s reasonable requirements, Buyer may undertake to remedy the nonconformity and in such case Seller shall reimburse Buyer for any reasonable costs thereby incurred.
(a) To the fullest extent permitted by law, Seller shall indemnify, defend, and hold harmless Buyer and Buyer’s directors, officers, agents and employees from and against any and all actual or threatened claims, losses, liabilities, damages, costs and expenses (including but not limited to reasonable attorneys’ fees) in any manner arising out of, caused by or connected with this order or any of the goods supplied or services performed under this order, including but not limited to personal injury, death and property damage. Nothing herein shall be construed as making Seller liable for any injuries, deaths or damages caused solely by the negligence or intentional wrongful acts of Buyer or its agents or employees.
(b) With respect to claims made or losses, liabilities, damages, costs and expenses suffered or incurred by any employee or subcontractor of Seller, or anyone for whose acts Seller or such contractor may be liable, Seller’s indemnification obligation shall not be limited in any way by any limitation on the amount or type of compensation, benefits or damages payable under any worker’s compensation, disability benefit, or other employee benefit acts, and Seller hereby waives any immunity from, or limitation on, Seller’s liability to Buyer under this Section 17 based on any applicable worker’s compensation act.
(c) This indemnification obligation shall not negate, limit, or otherwise reduce any other right or obligation of indemnity or contribution that may otherwise exist in favor of Buyer.
(d) Seller’s obligations under this Section 17 shall survive.
Seller shall maintain adequate liability, employer’s liability and workers’ compensation insurance to protect Buyer and its agents, employees and contractors with respect to the indemnity obligation contained in Section 17 above and any claims under workers’ compensation, safety and health and similar laws and regulations. If this order is for services, Buyer shall be named as an additional insured on Seller’s liability insurance policy, and that insurance shall be considered primary coverage with respect to any other insurance maintained by Buyer, and such other insurance shall be considered non-contributing and excess coverage only. Neither maintain nor failing to maintain any insurance required hereunder shall relieve Buyer of any obligation under these terms and conditions. Before entering onto Buyer’s premises, and otherwise upon request by Buyer from time to time, Seller shall promptly furnish proof of all required insurance in form and substance satisfactory to Buyer.
19. Force Majeure.
Seller shall not be in breach of these terms and conditions if the delay in Seller’s performance is due to circumstances beyond Seller’s reasonable control and Seller gives Buyer written notice of and explanation for the delay within five days after the occurrence of force majeure event. During any period of delay or failure to perform, Buyer, at its option, may purchase goods or services from other sources and reduce the quantity ordered from Seller without liability, or have Seller provide the goods or services from other sources in quantities and at times requested by Buyer and at the price set forth in this order. Seller shall allocate available supplies of its product equitably among its customers, with priority given to customers whose orders predate any force majeure event that would excuse full and timely performance under this Section 19.
20. Termination for Convenience.
Buyer may terminate this order at any time, in whole or in part, by providing written notice of termination to Seller, such termination to be effective as specified in the notice but not earlier than two days after the notice is received by Seller. Buyer shall be entitled to terminate without fee, charge or liability, except for conforming deliveries made or confirming services rendered prior to the effective date of termination. Upon termination, Seller shall reimburse Buyer for any payments made prior to termination respecting the terminated item(s) of material, equipment or service. In no event shall Buyer be liable for any termination charges or for any lost profits or unabsorbed overheads on account of such termination. All warranties, indemnities and confidentiality rights and obligations provided in this order shall survive the termination hereof.
21. Cancellation for Breach.
This order may be canceled immediately by Buyer upon Seller’s breach or repudiation of this order without regard to the materiality of such breach or repudiation.
22. Lien Waivers.
If this order is for the purchase of services, as a condition of payment Seller shall submit to Buyer an original, executed and notarized waiver of lien in customary form for all work completed and for all materials supplied in connection with the work. Buyer shall have the right to withhold payment in the event of any lien claims asserted, threatened or filed with respect to services rendered or materials supplied in connection with this order.
Subject to applicable bankruptcy law, in the event of any proceeding by or against Seller in bankruptcy, reorganization or insolvency or for the appointment of a receiver or any assignment for the benefit of creditors, Buyer may terminate this order without further liability, except for conforming deliveries previously made or confirming services previously rendered.
24. Trademarks, Copyrights and Patents.
Seller shall respect all trademark, copyright and patent rights of Buyer and shall not make, use or sell any material or goods reflecting such rights for any purpose, other than fulfillment of this order, without Buyer’s express written permission. Seller shall not sell or distribute or cause to be sold or distributed to anyone other than Buyer, either directly or indirectly, any goods that display or incorporate any of Buyer’s trademarks, copyrighted material or patents. Seller shall, at its expense, defend any suit or proceeding brought against Buyer based on an allegation that any goods or services, or any part thereof, furnished under this order, or the use thereof for their intended purpose, constitute an infringement of any patent, trademark or copyright or violation of any trade secret. Seller shall (a) pay all damages and costs (including but not limited to reasonable attorneys’ fees) awarded in any suit or proceeding against Buyer, and (b) indemnify Buyer against any and all costs incurred by Buyer in connection with any suit or proceeding and in providing information and assistance to Seller for the defense of any such suit or proceeding. If the goods or services, or any part thereof, as a result of any suit or proceeding are held to constitute infringement of any patent, trademark, or copyright or violation of any trade secret and their use by Buyer is enjoined, Seller shall, at no cost to Buyer, procure for Buyer the right to continue using the goods or services, or any part thereof. To the extent this order is issued for the creation of copyrightable works, the works shall be considered “works made for hire.” To the extent the goods sold hereunder do not qualify as “works made for hire,” Seller hereby assigns to Buyer all right, title and interest in all copyrights and other rights therein.
25. Buyer's Property and Seller's Technical Information.
All drawings, plates, cylinders, electrotypes, tooling, molds and similar items made in connection with this order and paid for by Buyer shall be Buyer’s property, shall not be used by or for the benefit of any third party, and shall be promptly returned to Buyer on request. Seller shall not copy, reproduce, or sell any of Buyer’s property and shall not make any goods using Buyer’s property except as expressly authorized on the face of this order. Seller shall not make any claim against Buyer (other than a claim for patent infringement) with respect to any technical information Seller may have disclosed to Buyer in connection with the goods or services provided under this order.
Except to the extent required under applicable law, Seller shall not, without Buyer’s express written consent, publicize or disclose to any third party the existence of this order or the contents herein. Seller shall not use Buyer’s name, trademarks, trade dress, logos, or other intellectual property in any advertising, marketing or other public statement without Buyer’s express written consent.
27. Customs and Export Requirements.
Credits or benefits resulting from or arising from this order, including trade credits, export credits or the refund of duties, taxes or fees, shall belong to Buyer. Seller shall provide all information necessary to permit Buyer to receive such credits or benefits, and to permit Buyer to fulfill its customs-related obligations, origin marking or labeling requirements and local content origin requirements, if any. Export licenses or authorizations necessary for the export of the goods sold hereunder shall be the responsibility of Seller unless otherwise indicated on the face of this order, in which event Seller shall provide such information as may be necessary to enable Buyer to obtain such licenses or authorization(s). Seller shall undertake such arrangements as may be necessary for the goods to be covered by any duty deferral or free trade zone programs of the country of import.
28. Governing Law.
This order shall be governed by the laws of the State of Illinois, U.S.A., without giving effect to conflict of law principles. Seller and Buyer hereby disclaim any application of the United Nations Convention on Contracts for the International Sale of Goods with respect to this order. Any dispute or claim or cause of action relating to or arising out of this order or the goods or services provided hereunder shall be settled exclusively by final and binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association. The arbitral tribunal shall consist of a single arbitrator jointly appointed by the parties or, in the absence of agreement, appointed by the American Arbitration Association upon request of either party. The arbitration shall take place in Chicago, Illinois. A proceeding to enforce the award of the arbitrator may be brought in any applicable forum.
Buyer’s rights and remedies under these terms and conditions are cumulative with, and in addition to, all other remedies at law or in equity. Where no specific remedy for breach of contract is specified, Buyer shall be entitled to pursue all available remedies in this order, at law or in equity.
This order and the terms and conditions incorporated by reference or otherwise made a part hereof constitute the entire agreement of the parties and supersede any prior or contemporaneous agreements or understandings. Seller is an independent contractor for all purposes hereof. This order is a contract for the sale of goods and/or the performance of services, and the relationship between the parties is that of buyer and seller, and is not intended to be one of hiring under the provisions of any workers’ compensation or other laws and shall not be so construed. Nothing herein shall be deemed to constitute a partnership or joint venture between the parties. Failure by Buyer in any instance to insist upon observance or performance by Seller of any of the terms, conditions or provisions of this order shall not be deemed a waiver of any such terms, conditions or provisions or of Buyer’s right to insist upon strict performance of the terms, conditions or provisions of this order thereafter. No waiver shall be binding upon Buyer unless in writing and signed by Buyer and any such waiver shall be limited to the particular instance referred to. Payment of any sum to Seller by Buyer with knowledge of any breach shall not be deemed to be a waiver of such breach or any other breach. This order and the remainder of these terms and conditions will not be voided by the invalidity of one or more of its provisions. The obligations of Seller in this order shall survive acceptance of the goods and payment therefore by Buyer.