STANDARD TERMS & CONDITIONS OF PURCHASE ORDER
A.P. NONWEILER CO., INC. (“Buyer”) and the entity to which the order is issued (“Seller”), agree that these Standard Terms & Conditions, which are incorporated into each and every purchase order (“Order”), shall apply in every respect to all purchase of products, materials, or other goods (“Goods”) or to all services (“Services) by Buyer from Seller. Seller and Buyer are each a “Party” and collectively “Parties.” If the Order is a release against an existing agreement between the Parties, these Standard Terms & Conditions do not supersede the terms of such agreement. Any additional, conflicting, or different terms or conditions set forth in any invoice, in any acknowledgment of this Order, or in any document other than this Order as issued by Seller and any properly executed purchase contract between the Parties, shall have no effect. The Order is accepted by Seller when it begins providing the Goods or Services, unless accepted earlier. Buyer’s failure to object to provisions contained in any purchase order or other communication from Seller shall not be construed as a waiver of these Standard Terms & Conditions, nor an acceptance of any such provisions.
1. Delivery. Unless otherwise stated in the Order, all Goods will be shipped freight collect or freight prepaid. If Seller is responsible for shipping Goods, Seller will ship Goods via the most economical route and in a single shipment. Seller will deliver all Goods and Services within the time period stated in the Order, or the Parties agree to a shorter time period. Seller will make no charge for any packing, crating, storage, insurance, shipping, or delivery expense, unless authorized in the Order. Seller will pay any excess costs due to failure to follow Buyer’s shipping instructions. The following guidelines are provided as minimum requirements for preparation of conveyances for domestic shipments of materials and shall be followed when there are no prevailing procedures or requirements specified by the site or business, (a) hazardous materials being shipped will use a High Security Seal, (b) non-Hazardous materials being shipped will use a Security Seal, and (c) empties being shipped/returned will use a Tamper Indicating Device. If Seller delivers any Goods other than that stated in the Order without Buyer’s prior written consent, Buyer may return any of that delivery, at Seller’s expense. Buyer’s determination of the Goods’ count and weight is conclusive, unless Seller encloses a packing slip stating a different amount. TIME IS OF THE ESSENCE FOR ALL ORDERS.
2. Unavoidable Delay. If a Party cannot perform its obligations, in whole or in part, under an Order because of civil or military authority, war, flood, fire, epidemic, or other condition or cause beyond its reasonable control and not related to its fault or negligence (an “Unavoidable Delay”), that Party will be excused from that performance during the Unavoidable Delay to the extent that performance is prevented or delayed. If Seller has an Unavoidable Delay, Buyer may modify or terminate any Orders on notice to Seller without liability to Seller. During a Seller Unavoidable Delay, Seller will allocate any available Goods as is fair and reasonable.
3. Labor and Materials. Seller shall furnish all labor and materials (e.g., facilities, equipment, and packaging) necessary to perform the Order, unless provided by Buyer. Seller assumes full responsibility, liability, and risk of loss for the safekeeping and safe handling of all such Buyer material or equipment while such is in Seller’s care, custody, and control.
4. Prices and Payment. Goods and Services will be delivered to Buyer for the price stated in the Order. Seller represents that the price(s) specified in the Order do not exceed the current selling price for the same or substantially similar goods or services to any other purchaser, considering the quantity under consideration. Buyer’s payments may be adjusted for Seller’s errors, defects, or non-compliance with the Order (including these Terms). Each invoice must relate to only one Order. Seller will invoice Buyer no earlier than the date of delivery of the Goods or completion of Services and no later than 90 calendar days after the delivery of the Goods or completion of the Services, whichever is earlier. Buyer will have no obligation to pay any invoice submitted after that date. Seller’s invoice will contain, at a minimum, the Order number, description of the Goods and/or Services, quantity per line item, unit price, extended price on each line, total value of the shipment. Buyer shall pay the price(s) set forth in the Order within 90 calendar days, if the payment due date is a day other than a business day, Buyer will make such payment on the next business day after such due date.
5. Taxes. Buyer shall be responsible for all taxes with respect to payments made under this order to the extent such taxes are included in the price. Buyer shall not be responsible for any taxes measured by Seller’s net income or taxes through withholding. If Buyer is required by law to withhold and remit tax relating to an Order, Buyer shall be entitled to reduce the payment by the amount of such tax. For U.S. purposes, and notwithstanding any language to the contrary above, prices are exclusive of Sales and Use Tax. Such taxes, if applicable, shall be added separately in Seller’s invoice and Buyer shall remit such taxes to Seller. Seller will not invoice or otherwise attempt to collect from Buyer any taxes with respect to which Buyer had provided Seller with (i) a valid resale or exemption Certificate (ii) evidence or direct payment authority, or (iii) other evidence, reasonably acceptable to Seller, that such taxes do not apply.
6. Changes. Buyer may change an Order by giving electronic or written notice to Seller before shipment of the applicable Goods or performance of the Services. If any change Order causes an adjustment in price or delivery date, the Parties will make an equitable adjustment and modify an Order accordingly, provided that Seller gives Buyer notice of that adjustment claim within 3 business days after receipt of Buyer’s change Order notice.
7. Cancellation. Buyer may cancel an Order, without cause, at any time by electronic or written notice to Seller, but if Buyer’s notice of cancellation is issued less than 5 calendar days before a scheduled Goods delivery date or Services performance date, then Seller will be entitled to reimbursement for: (a) if Goods, any unique raw materials that cannot be returned to Seller’s supplier or sold to other Seller customer(s) and are necessary to provide those Goods due on that delivery date; or (b) if Services, the fees for those Services completed before the termination and Seller’s actual, out-of-pocket expenses paid to third parties that are not refundable and were reasonably necessary to provide those Services. If Seller fails to comply with all of an Order’s Terms or admits its inability to meet its financial obligations, or it otherwise becomes apparent that Seller will not be able to fulfill its obligations under that Order due to Unavoidable Delay or other cause, then Buyer may cancel an Order at any time by electronic or written notice to Seller without any liability of any kind to Seller, in addition to any other legal or equitable remedies Buyer may have.
8. Warranty. In addition to all implied and express warranties available under the Uniform Commercial Code (“UCC”) Seller warrants (a) the Goods will conform to the specifications referred to in the Order and will be of merchantable quality and free from defect in design, material, and workmanship; (b) the Goods will conform to any statements or representations made to Buyer, or appearing in Seller’s literature or advertisements; (c) the Goods will be safe and appropriate for the purpose for which the Goods are intended; (d) Seller will deliver good and marketable title to the Goods and the Goods will be delivered free of liens or encumbrances; (e) Seller has complied in all respects with all laws, rules, and regulations relating to the manufacture, transportation, and delivery of the Goods and performance of Services; (f) Services will be performed in a workmanlike manner using qualified, efficient, and careful workers and in a manner as to cause minimum interference with other operations; (g) Services will be in accordance with all plans, drawings, and specifications provided by Buyer.
9. Remedies. If Goods or Services are found to be defective or otherwise fail to conform to the warranties, and Buyer so notifies Seller, Seller shall, at Seller’s sole expense and using its best efforts, promptly correct such nonconformity to the satisfaction of Buyer, failing which (a) Buyer may reject or revoke acceptance and cover by making purchase of substituted goods or services; (b) Buyer may proceed to correct Seller’s nonconforming work by the most expeditious means available, in which case, the costs for such correction will be at Seller’s expense; or (c) Buyer may retain the nonconforming Goods or Services with an equitable reduction to the Order price to reflect the diminished value of such nonconforming Goods or Services.
10. Production Discontinuation. Before Seller’s discontinuing the manufacture or sale of any Good identified in any Order issued by Buyer during the preceding 12 months: (a) Seller will fill all current Orders for that Good; (b) Seller will give Buyer at least 6 months’ prior written notice of that discontinuation; and (c) Buyer will have the right to issue a last-time buy Order for, and Seller will deliver, that discontinued Good at its then-current price in an amount up to Buyer’s largest twelve-month purchase volume (based on Orders issued).
11. Confidentiality. (a) Seller will keep the Confidential Information (defined below) confidential and will not disclose all or any part of the Confidential Information to any third party (except as expressly allowed herein or as may be compelled by applicable law, a government agency or a court or other tribunal, and only then after giving Buyer reasonable notice and opportunity to object). Seller may disclose Confidential Information only to (i) those of its employees who reasonably require access to the Confidential Information for purposes of performing under the Order, and (ii) those members of Seller’s organization authorized by Buyer to have access to the Confidential Information. Seller will ensure any such persons receiving any Confidential Information treat it in accordance with the Order. Seller agrees the Confidential Information will not be processed and/or used by Seller for any purpose other than performing as required under the Order. Seller will limit duplication of Confidential Information to only the number of copies reasonably required for performing under the Agreement. Within 20 days after receipt of Buyer’s written request, Seller will, at Buyer’s sole option, either return all originals and copies of the Confidential Information in every media in Seller’s possession or control or destroy all such originals and copies and certify in writing to such destruction and the destruction method. To the extent applicable law does not permit Seller to destroy any Confidential Information, Seller will notify Buyer of such law and the required retention period and permit Buyer to respond to such requirement. Seller will continue to be bound by this Section for any retained Confidential Information. (b) The term “Confidential Information” means all information that Seller, directly or indirectly, acquires from Buyer or its affiliates hereunder, and all information that arises out of the performance under the Order, including Personal Data (defined below) and information concerning the business plans and operations of Buyer and its affiliates; provided, however, Confidential Information will not include (i) information that is, at the time of disclosure, development, observance, or discovery hereunder (the “Time of Access”), or subsequently becomes, within the public knowledge generally through no fault of Seller; (ii) information that Seller can show was known to it (on a non-confidential basis) as of the Time of Access, independent of anything relating to Buyer, its affiliates or the performance hereunder; and (iii) information that Seller can show was lawfully obtained (on a non-confidential basis) from a third party (independent of anything relating to Buyer, its affiliates, or the performance hereunder) and that such third party lawfully obtained the information, through no fault of Seller, subsequent to the Time of Access. The term “Personal Data” means any data, information, or record that directly or indirectly identifies a natural person or relates to an identifiable natural person, including but not limited to, first name, last name, address, telephone number, e-mail address, payment card data, Social Security Number, date of birth, driver’s license number, age, consumer preferences, medical and health-related information, and any other personally identifiable information that Seller processes in connection with its performance hereunder.
(c) Seller agrees, at all times, it will take all appropriate and commercially reasonable measures to comply with all safeguards and industry standards concerning privacy, data protection, confidentiality, and information security.
(d) Seller acknowledges that it may receive Confidential Information relating to or belonging to Buyer’s affiliates and agrees each such affiliate shall be protected by all terms and provisions of the Section, including for purpose of enforcing the provisions hereof.
Seller’s duties under this Section will survive the termination or expiration of this Agreement.
12. Indemnity and Insurance. Seller will defend, indemnify, and hold harmless Buyer, its affiliates and any other related entities and their respective officers, directors, and employees (collectively “Indemnitees”) from and against all claims, liabilities, damages, causes of action, strict liability claims, penalties, fines, and expenses (including, but not limited to, attorneys’ fees) (collectively “Claims/Liabilities”) arising out of or in any way incident to (a) any act or omission of the Seller, (b) any of the Goods and/or Services, and (c) any breach of the Order including, Claims/Liabilities relating to personal injuries, damage to property, or infringement of any property right, regardless of whether such harm is to the Seller, Indemnitees, or any other person or entity. The foregoing obligations include Claims/Liabilities that result from the negligence of any person or entity, including Indemnitees, except Seller will not be liable for Claims/Liabilities resulting from the sole negligence of Indemnitees. Claims arising out of handling, packaging, labeling, storage, treatment, removal, transportation, and disposal of any waste material at any Seller site or related to the Goods under any laws, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. Sections 9601 et. seq. as amended, known as “CERCLA”), the Hazardous Materials Transportation Act (49 U.S.C. Sections 5101 et. seq.), the Resource Conservation and Recovery Act (42 U.S.C. Sections 6901 et. seq., known as “RCRA”), or any other current or future law of similar effect. These indemnities do not affect any other Buyer remedies. Seller will maintain liability, property damage, and other insurance to protect Buyer from all the foregoing risks, and will, on request, supply certificates evidencing this coverage. Seller’s obligations under this section will survive the termination, revocation or expiration of this agreement.
13. Governing Law/Waiver of Jury Trial. Any claim or dispute arising from or relating to a Good, Service, or an Order (including these Terms) will be governed by the laws of the state of Wisconsin. Any litigation will occur in the Winnebago County Circuit Court, Wisconsin. Each Party consents to the personal jurisdiction of the Winnebago County Circuit Court, Wisconsin.. Buyer and Seller each waive all rights to a trial by jury.
14. Term and Termination. The Order shall continue for the period specified (or, if not specified, until completed) unless terminated earlier (in whole or in part): (a) as set forth herein; (b) by Buyer, with or without cause, upon immediate notice; or (c) by Seller if Buyer fails to cure a breach within 30 calendar days after notice. Any permitted termination (or expiration) shall be without penalty (including termination fees) and shall not relieve or release either Party from any rights, liabilities, or obligations that have accrued under the law or the Order.
15. Notices. All notices, consents, or other communications will be in writing and will be deemed received on the day of actual receipt; provided that if the date of receipt is not a business day or the communication is received after the close of business on a business day, the communication will be deemed given and effective on the next day that is a business day.
16. No Third-Party Beneficiaries. These Standard Terms & Conditions are solely for the benefit of, and will inure to the benefit of, Buyer and Seller, and will not otherwise be deemed to confer upon or give to any third party any right, claim, cause of action, or other interest herein, except as expressly set forth herein.
17. Severability. The invalidity or unenforceability of any provision of the Order will not affect the validity or enforceability of its other provisions.
18. Miscellaneous. The captions and section headings set forth in the Order and Terms and Conditions are used for convenience only and will not be used in defining or construing any of the terms and conditions set forth in the Agreement. The term “days.” as used herein, will mean actual days occurring, including, Saturdays, Sundays, and holidays where banks are authorized to be closed in Oshkosh, Wisconsin. The term “business days” will mean days other than Saturdays, Sundays, and holidays where banks are authorized to be closed in Oshkosh, Wisconsin. The term “including.” or any variation thereof, means “including, without limitation” and will not be construed to limit any general statement that it follows to the specific items immediately following it. Unless the context indicates otherwise, words importing the singular number will include the plural and vice versa, and words importing person will include firms, association, partnerships, and corporations, including public bodies and governmental entities, as well as natural persons, and words of masculine gender will be deemed to include correlative words of the feminine gender and vice versa as the circumstances may require.