TERMS AND CONDITIONS
- Applicability. These ERT Standard Terms and Conditions (the “Terms”) accompany the purchase of goods (the “Goods”) as specified in a Purchase Order Agreement (the “Agreement”). These terms are hereby incorporated by reference into the applicable Agreement and constitute the sole and entire agreement of the parties with respect to the order, and supersede all prior or contemporaneous understandings, quotations, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the order. These Terms prevail over any terms or conditions contained in any other documentation and expressly exclude any of Seller’s general terms and conditions of sale or any other document issued by Seller in connection with this order.
- Acceptance. The purchase is not binding on Buyer until Seller accepts the purchase order in writing. Buyer may withdraw the order at any time before it is accepted by Seller.
- Inventory Capacity. Throughout the term of this Agreement, Seller shall maintain the capacity and availability to supply Buyer’s peak weekly, monthly and annual requirements of Goods (as communicated by Buyer to Seller in Purchase Orders).
- Delivery Date. Seller shall deliver the Goods in the quantities and on the date(s) specified in this order or as otherwise agreed in writing by the parties (the “Delivery Date”). If no delivery date is specified, Seller shall deliver the Goods within seven to ten (7 to 10) business days of Seller’s receipt of the order. Timely delivery of the Goods is of the essence. If Seller fails to deliver the Goods in full on the Delivery Date, Buyer may terminate the order immediately by providing written notice to Seller and Seller shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses directly attributable to Seller’s failure to deliver the Goods on the Delivery Date.
- Quantity. If Seller delivers more than or less than 100% of the quantity of Goods ordered Buyer may reject all or any excess Goods. Any such rejected Goods shall be returned to Seller at Seller’s risk and expense. If Buyer does not reject the Goods and instead accepts the delivery of Goods at the increased or reduced quantity, the Price for the Goods shall be adjusted on a pro-rata basis.
- Delivery Location. All Goods shall be delivered to the address specified in this order (the “Delivery Location”) during Buyer’s normal business hours or as otherwise instructed by Buyer.
- Shipping Terms. Delivery shall be made in accordance with the terms on the face of this order. Seller shall give written notice of shipment to Buyer when the Goods are delivered to a carrier for transportation. Seller shall provide Buyer all shipping documents, including the commercial invoice, packing list and any other documents necessary to release the Goods to Buyer within one (1) business day after Seller delivers the Goods to the transportation carrier. The order number must appear on all shipping documents, shipping labels, invoices, correspondence and any other documents pertaining to the order.
- Title and Risk of Loss. Title passes to Buyer upon delivery of the Goods to the Delivery Location. Seller bears all risk of loss or damage to the Goods until delivery of the Goods to the Delivery Location.
- Packaging. All goods shall be packed for shipment according to Buyer’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. Seller must provide Buyer prior written notice if it requires Buyer to return any packaging material. Any return of such packaging material shall be made at Seller’s expense.
- Amendment and Modification. No change to this order is binding upon Buyer unless it is in writing, specifically states that it amends this order and is signed by an authorized representative of Buyer.
- Inspection and Rejection of Nonconforming Goods. Buyer shall have the right to inspect and test the goods ordered prior to delivery and at the time and place of receipt before paying for or accepting the goods. Defective goods or goods not in compliance with Buyer’s drawings, specifications or standards, if any, will, at Buyer’s choice, but at Seller’s sole risk and expense, either be held pending Seller’s reasonable instructions or be shipped to Seller at Seller’s address on the face of this Purchase order. Any such goods chosen by Buyer to be held, shall be held at Seller’s risk and expense pending Seller’s reasonable instructions for a period not exceeding thirty (30) days and, if Seller so instructs Buyer, will be returned to Seller at Seller’s risk and expense. Any such goods remaining in Buyer’s possession after the expiration of such thirty (30) day period may be destroyed or otherwise disposed of by Buyer at Seller’s risk and expense. If inspection or test discloses that any part of the goods received are defective or not in compliance with Buyer’s drawings, specifications or standards, Buyer shall have the right to cancel any unshipped portion of the Purchase order in addition to any rights or remedies it may have, whether under this Purchase order or otherwise. Buyer’s payment of goods prior to inspection shall not constitute acceptance thereof and is without prejudice to any and all claims Buyer may have against Seller or any other party. Seller shall remit to Buyer that portion, if any, of the price paid by Buyer for any defective goods together with any and all costs, expenses charges relating thereto including without limitation destruction and transportation costs. Buyer shall also be entitled to receive credit for any goods later rejected by Buyer as not being in compliance with this Purchase order and damaged goods that are later returned. Buyer shall also have the right to send one or more of its authorized representatives to inspect Seller’s business operations (including without limitation manufacturing and warehouse facilities) at any time during regular business hours. If for any reason Seller’s business operations do not comply with applicable laws, ordinances, rules and regulations, the Seller at its own cost and expense shall remedy any such deficiency.
- Price. The price of the Goods is the price stated in the order (the “Price”). If no price is included in the order, the Price shall be the price set out in Seller’s published price list in force as of the date of the order. Unless otherwise specified in the order, the Price includes all packaging, transportation costs to the Delivery Location, insurance, customs duties, fees and applicable taxes, including, but not limited to, all sales, use or excise taxes. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Buyer.
- Most Favored Customer. Seller represents and warrants that the price for the Goods is the lowest price charged by Seller to any of its external buyers for similar volumes of similar Goods. If Seller charges any other buyer a lower price, Seller must apply that price to all Goods under this order. If Seller fails to meet the lower price, Buyer, at its option, may terminate this order without liability pursuant to Section 23.
- Payment Terms. Payment terms are 2% 15 net 60 unless otherwise negotiated and agreed to in writing by both Buyer and the Seller. Buyer shall receive the 2% 15 standard or negotiated discount regardless of whether the discount is shown on Seller’s invoice. Unless freight and other charges, where applicable, are itemized, discount will be taken on the full invoice amount. Seller shall issue a separate invoice (in duplicate) for each shipment made against this Purchase order. Each invoice must contain this Purchase order number, Buyer’s Part Number(s), if any, and quantities shipped. Unless otherwise specified, no invoice shall be issued prior to shipment of Goods and no payment will be made prior to receipt and acceptance of Goods and a correct invoice. A delay in receiving an invoice, invoicing for Goods shipped ahead of the specified schedule or invoices received with errors or omissions will be considered just cause for Buyer to withhold payment, without losing discount privileges. Payment terms, including without limitation discount privileges, will apply from the date of receipt of the Good(s) or the correct invoice, whichever is later. Buyer shall pay all properly invoiced amounts due to Seller within sixty (60) days after Buyer’s receipt of such invoice, except for any amounts disputed by Buyer in good faith. All payments hereunder must be in US dollars. In the event of a payment dispute, Buyer shall deliver a written statement to Seller no later than fifteen (15) days prior to the date payment is due on the disputed invoice listing all disputed items and providing a reasonably detailed description of each disputed item. Amounts not so disputed are deemed accepted and must be paid, notwithstanding disputes on other items, within the period set forth in this Section 14. The parties shall seek to resolve all such disputes expeditiously and in good faith. Seller shall continue performing its obligations under the order notwithstanding any such dispute.
- Set-off. Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Buyer to Seller under the order.
- Warranties. Seller warrants to Buyer that for a period of twenty-four (24) months from the Delivery Date, all Goods will: (a) be free from any defects in workmanship, material and design; (b) conform to applicable specifications, drawings, designs, samples and other requirements specified by Buyer; (c) be fit for their intended purpose and operate as intended; (d) be merchantable; (e) be free and clear of all liens, security interests or other encumbrances; and (f) not infringe or misappropriate any third party’s patent or other intellectual property rights. These warranties survive any delivery, inspection, acceptance or payment of or for the Goods by Buyer. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Buyer’s discovery of the noncompliance of the Goods with the foregoing warranties. If Buyer gives Seller notice of noncompliance with this Section, Seller shall, at its own cost and expense, promptly replace or repair the defective or nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods to Seller and the delivery of repaired or replacement Goods to Buyer.
- Seller shall maintain appropriate documentation necessary to demonstrate Seller’s compliance with this Agreement and as otherwise necessary to comply with Law. Upon reasonable notice and during normal business hours, Seller shall provide to Buyer and its internal and external auditors (“Buyer Auditors”) and regulators access to any facility or part of a facility at which Seller is providing the Goods, or at which the books and records relating to the Goods are located, for the purposes of performing audits and inspections of Seller and examination of the systems and infrastructure. The foregoing audit rights shall include, when applicable, audits of (i) practices and procedures, (ii) systems and infrastructure, (iii) security practices and procedures, (iv) disaster recovery and backup procedures, and (v) other areas necessary to enable Buyer to comply with applicable laws and quality assurance. Upon reasonable notice from Buyer, Seller shall provide Buyer Auditors with access to financial records and supporting documentation to the extent necessary to ascertain the correctness of charges to Seller hereunder. Such Buyer Auditors may audit the fees charged to Buyer to determine if such fees are accurate and in accordance with this Agreement. Seller shall be obligated to notify Buyer of any overcharges of which Seller becomes aware. In the event that any such audit reveals an overcharge of 5% or more of a particular fee category or a breach by Seller of any of its obligations or representations hereunder, Seller shall pay to Buyer an amount equal to, or at Buyer’s option, issue to Buyer a credit against fees payable in an amount equal to, the reasonable cost of such audit. Seller shall cooperate with Buyer or Buyer Auditors in connection with audit functions. For the avoidance of doubt, audit cooperation is included as part of the purchasing of the Goods (including participation by Seller accountants) and shall not be counted against resource utilization and shall be provided at no cost to Buyer.
- Material Change Notice. Buyer shall provide Seller thirty (30) days prior written notice before performing any material changes to the Goods. Material changes include but are not limited to: (i) any major modification to any Goods, specifications, or any other requirement set out in this Agreement or purchase order; or (ii) any change to the Good’s software, operating systems, processes, controls, interfaces, or hardware that could affect or require Seller to make changes to the processes, controls, interfaces, hardware, software or systems of Seller (including any operating, network or security standards).
- General Indemnification. Seller shall defend, indemnify and hold harmless Buyer and Buyer’s subsidiaries, affiliates, successors or assigns and their respective directors, officers, shareholders and employees (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with the products purchased from Seller or Seller’s negligence, willful misconduct or breach of the Terms. Seller shall not enter into any settlement without Buyer’s or Indemnitee’s prior written consent.
- Intellectual Property Indemnification. Seller shall, at its expense, defend, indemnify and hold harmless Buyer and any Indemnitee against any and all Losses arising out of or in connection with any claim that Buyer’s or Indemnitee’s use or possession of the Goods infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. In no event shall Seller enter into any settlement without Buyer’s or Indemnitee’s prior written consent.
- Insurance. Prior to commencement of this Agreement, each Party shall, at its sole expense, maintain the following insurance on its own behalf, and furnish to the other Party, upon prior written request, Certificates of Insurance evidencing same.
|Type of Coverage||Amount|
|Automobile liability covering all vehicles owned, non-owned, hired and leased||Not less than $1,000,000.00 per claim (combined single limit for bodily injury and property damage)|
|Commercial general liability insuring against bodily injury, property damage, premises liability, contractors’ completed operations, and contractual liability (including covering Provider’s indemnification obligations contained herein)||· General Aggregate: $3,000,000
· Products/Completed Operations Aggregate: $1,000,000
· Each Occurrence: $1,000,000
· Personal and Advertising Injury: $1,000,000
|Professional liability and errors and omissions insurance||Not less than $ 10,000,000.00 per claim and $10,000,000.00 in the aggregate|
|Umbrella coverage (including commercial general liability coverage)||Not less than $ 10,000,000 per occurrence or $10,000,000 in aggregate (where applicable)|
|Workers Compensation and Employer’s Liability coverage.||Statutory limits. Employer’s Liability coverage in an amount not less than $100,000 Each Accident; $100,000 Each Employee and $500,000 Policy Limit|
- Compliance with Law. Seller is in compliance with and shall comply with all applicable laws, regulations and ordinances. Seller has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under the order. Seller shall comply with all export and import laws of all countries involved in the sale of Goods under this order. Seller assumes all responsibility for shipments of Goods requiring any government import clearance. Buyer may terminate this order if any government authority imposes antidumping duties, countervailing duties or any retaliatory duties on the Goods.
- Termination. Buyer may terminate this order, in whole or in part, at any time with or without cause for undelivered Goods on fifteen (15) days’ prior written notice to Seller. In addition to any remedies that may be provided under these Terms, Buyer may terminate this order with immediate effect upon written notice to the Seller, either before or after the acceptance of the Goods, if Seller has not performed or complied with any of these Terms, in whole or in part. If the Seller becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then the Buyer may terminate this order upon written notice to Seller. If Buyer terminates the order for any reason, Seller’s sole and exclusive remedy is payment for the Goods received and accepted by Buyer prior to the termination.
- Limitation of Liability. Nothing in this order shall exclude or limit (a) Seller’s liability under Sections 16, 19, 20 and 22 hereof, or (b) Seller’s liability for fraud, personal injury or death caused by its negligence or willful misconduct. Each party’s maximum liability to the other party shall not exceed the greater of $100,000.00 or the aggregate amount actually paid or payable under this order.
- Waiver. No waiver by any party of any of the provisions of the order shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the order, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the order shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- Confidential Information. All non-public, confidential or proprietary information of the Buyer, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Buyer to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the order is confidential, solely for the use of performing the order and may not be disclosed or copied unless authorized by Buyer in writing. Upon Buyer’s request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to the Seller at the time of disclosure; or (c) rightfully obtained by the Seller on a non-confidential basis from a third party.
- Force Majeure. Neither party shall be liable to the other for any delay or failure in performing its obligations under the order to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party’s fault or negligence, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable (“Force MajeureEvent”). Force Majeure Events include, but are not limited to, acts of God or the public enemy, government restrictions, floods, fire, earthquakes, explosion, epidemic, war, invasion, hostilities, terrorist acts, riots, strike, embargoes or industrial disturbances. Seller’s economic hardship or changes in market conditions are not considered Force Majeure Seller shall use all diligent efforts to end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized and resume performance under the order. If a Force Majeure Event prevents Seller from carrying out its obligations under the order for a continuous period of more than twenty (20) business days, Buyer may terminate this order immediately by giving written notice to Seller.
- Assignment. Seller shall not assign, transfer, delegate or subcontract any of its rights or obligations under the order without the prior written consent of Buyer. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Seller of any of its obligations hereunder. Buyer may at any time assign or transfer or subcontract any or all of its rights or obligations under the order to an affiliate without Seller’s prior written consent.
- Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in the order shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from this order.
- No Third-Party Beneficiaries. This order is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
- Governing Law. All matters arising out of or relating to this order shall be governed by and construed in accordance with the internal laws of the State of Pennsylvania without giving effect to any choice or conflict of law provision or rule (whether of the State of Pennsylvania or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Pennsylvania.
- UCC Applicability. Except to the extent that the provisions of these Terms and Conditions are clearly inconsistent therewith, this Agreement shall be governed by any applicable provisions of Article 2 of the Uniform Commercial Code (UCC) in effect in the State of Pennsylvania. To the extent that this contract entails delivery or performance of services, such services shall be deemed “goods” within the meaning of the Uniform Commercial Code, except where to deem such services as “goods” would result in an absurdity.
- Governmental Sanction. Buyer will immediately cease conducting business if Seller’s name or identification number appears on any government sanction list and will not resume until rectified to the satisfaction of Buyer, with no penalty to Buyer.
- Cumulative Remedies. The rights and remedies under this order are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
- Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of this order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this order, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
- Severability. If any term or provision of this order is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
- Survival. Provisions of this order which by their nature should apply beyond their terms will remain in force after any termination or expiration of this order including, but not limited to, the following Sections: 16, 19-20, 22, 24-26 and 28-37.