Seller has read and understands this contract and agrees that Seller’s written acceptance or commencement of any work or services under this contract shall constitute Seller’s acceptance of these terms and conditions only.
(a) “Contract” means the contract made pursuant to any Purchase Order, and all related “Contract Documents”, which include any Purchase order, Supply Agreement, Delivery Order, these Terms, and any special conditions, instructions, or other related documents solely issued by Buyer. (b) “Seller” means each party providing Goods to Buyer under the Contract. (c) “Buyer” Means Oakland Industries, LLC or any of its affiliated or subsidiary companies as currently exist or may be subsequently formed. (d) “Owner” means the person or entity with which Buyer has entered into a contract relating to the Project and, if such a person or entity is not the owner of the Project, shall include the Project owner. (e) “Project” means the project identified in the applicable Contract. (f) “Goods” means any of the following provided or performed by or on behalf of the Seller, including, but not limited to: (i) all items, equipment, tooling, machinery, parts, goods, personal property, software and any intellectual property; (ii) all labor and materials supplied by Seller in connection with or reasonably related to performance by Seller under the Contract; (iii) all specifications, plans or drawings supplied by Seller in connection with or reasonably related to performance by Seller under the Contract; and/or (iv) any services provided by Seller in performing under the Contract, including installation and construction activities.
- SHIPPING AND BILLING.
Seller agrees: (a) to properly pack, mark and ship goods in accordance with the requirements of Buyer, the involved carriers, and, if applicable, the country of destination; (b) to route shipments in accordance with Buyer’s instructions; (c) to make no charge for handling, packaging, storage or transportation of goods, unless otherwise stated as an item in this contract; (d) to provide with each shipment packing slips with Buyer’s contract and/or release number and date of shipment marked thereon. Seller further agrees to accept payment by check or electronic funds transfer, whichever is deemed to be acceptable by the Buyer. The payment date is set forth elsewhere in this Contract, or if not stated, shall be 60 days and paid on a weekly basis, which provided that payment shall be made on average in 60 days, with weekly disbursement, following receipt of the goods at Buyer’s plant or, if directed by Buyer, receipt of a valid invoice. Seller agrees invoices submitted to Buyer that do not accompany a Purchase Order or Contract and Bill of Lading will not be accepted or paid by the Buyer. Seller grants to Buyer access to all pertinent information and records in order to cooperate with Buyer so as to facilitate an audit, if need be.
Buyer agrees to pay Seller for the Materials at the sum set forth in the Contract, providing such materials are satisfactory to Buyer. Partial payments may be made according to the terms set forth in the Contract not to exceed the amount paid to Buyer by Owner. The Contract overrides any previous quotations or agreements. Buyer will pay Seller in agreed upon terms after receipt by Buyer of its payments from Owner.
- CHANGES AND SUBSTITUTIONS.
Seller shall not, at any time, make any changes, additions or deletion in the Good or prices as described in the Contract Documents, without Buyer’s prior written approval. Buyer may make such changes, additions or deletions only upon written notice to Seller. Seller shall continue its performance of this Contract while such changes, additions or deletions are pending, unless otherwise instructed by Buyer. If the words “or equal” are used in the Contract Documents with regard to any Goods, any “equals” proposed to be substituted by Buyer must first be approved in writing by Buyer.
- DELIVERY AND DELIVERY SCHEDULES.
Deliveries shall be made both in quantities and at times as specified by Buyer and agreed to by Seller via such means as Buyer’s schedules. Where quantities and/or delivery schedules are not specified, Seller shall deliver goods in such quantities and times as Buyer may direct. Seller shall be responsible for any loss or damage to the Goods caused in whole or in part by improper packing. If seller’s acts or omissions result in Seller’s failure to meet Buyer’s delivery requirement and Buyer requires a more expeditious method of transportation for the goods than the transportation method originally specified by Buyer, Seller shall ship the goods as expeditiously as possible at Seller’s sole expense.
- NONCOMFORMING GOODS.
Seller acknowledges that Buyer has no obligation to perform incoming inspections of the goods, and waives any rights to require Buyer to conduct such inspections. Any such inspection performed by Seller shall be without obligation to Buyer. Nonconforming goods will be held by Buyer in accordance with Seller’s instructions at Seller’s risk. Seller’s failure to provide written instructions within 14 days, or such shorter period as may be commercially reasonable under the circumstances, after notice of nonconformity shall entitle Buyer, at Buyer’s option, to charge Seller for storage and handling or to dispose of the goods without liability to Seller. Payment for nonconforming goods shall not constitute an acceptance of them, limit or impair Buyer’s right to assert any legal or equitable remedy, or relieve Seller’s responsibility for latent defects.
- FORCE MAJEURE.
Any delay or failure of either party to perform its obligations shall be excused if, and to the extent that, it is caused by an event or occurrence beyond the reasonable control of the party and without its fault or negligence. During the period of such delay or failure to perform by Seller, Buyer, at its option, may purchase goods and services from other sources and reduce its schedules to Seller by such quantities, without liability to Seller, or have Seller provide the goods and services from other sources in quantities and at times requested by Buyer, and at the price set forth in the contract. If requested by Buyer, Seller shall, within 10 days of such request, provide adequate assurances that the delay shall not exceed 30 days. If the delay lasts more than 30 days or Seller does not provide adequate assurance that the delay will cease within 30 days, Buyer may immediately terminate this contract without liability. The time to perform under this contract will be extended by one day for each day of excusable delay.
Seller represents and warrants that it has the full power to enter in to the Contract and to perform its obligations under the Contract. Seller warrants/guarantees that the goods and/or services covered by this contract will conform to the specifications, drawings, samples or descriptions furnished to or by Buyer, and will be merchantable, of good material and workmanship and free from defect. In addition, Seller acknowledges that Seller knows of Buyer’s intended use and warrants/guarantees that all goods covered by this contract that have been selected, designed, manufactured, or assembled by Seller, based upon Buyer’s stated use will be fit and sufficient for the particular purposed intended by Buyer. The warranty period shall be that specified in this contract or provided by applicable law, except that if Buyer offers a longer warranty to its customers, such longer period shall apply. This warranty runs to Buyer and Buyer’s customer(s) and is in addition to those otherwise provided or implied by law or customarily given by Seller with respect to similar goods.
- INGREDIENTS AND DISCLOSURE FOR SPECIAL WARNINGS.
If requested by Buyer, Seller shall promptly furnish to Buyer in such form and detail as Buyer may direct: (a) a list of all ingredients in the goods; (b) the amount of all ingredients; and (c) information concerning any changes in or additions to such ingredients. Prior to and with the shipment of the goods, Seller agrees to furnish to Buyer sufficient warning and notice in writing (including appropriate labels on goods, containers and packing) of any hazardous material that is an ingredient or a part of any of the goods, together with such special handling instructions as may be necessary to advise carriers, Buyer, Buyer’s customer(s) and their respective employees of how to exercise that measure of care and precaution that will best prevent bodily injury or property damage in the handling, transportation, processing, use, or disposal of the goods, containers and packing material shipped to Buyer.
Buyer may immediately terminate this contract without liability to Seller in any of the following or any other comparable events: (a) insolvency of Seller; (b) filing of a voluntary petition in bankruptcy by Seller; (c) filing of any involuntary petition in bankruptcy against Seller; (d) appointment of a receiver or trustee for Seller; or (e) execution of an assignment for the benefit of creditors by Seller, provided that such petition, appointment or assignment is not vacated or nullified within fifteen (15) days of such event. Seller shall indemnify Buyer from all liability, claims, demands, actions, losses, suits, damages, judgments, attorney fees, costs, charges, expenses, and consequences of any liabilities, of any nature incurred by Buyer in connection with or arising out of any of the foregoing.
- TERMINATION FOR NONPERFORMANCE OR BREACH.
Buyer reserves the right to terminate all or any part of this contract, without liability to Seller, if Seller: (a) repudiates or materially breaches any of the terms of this contract, including Seller’s warranties; (b) fails to perform services or deliver goods as specified by Buyer; (c) fails to make progress so as to endanger timely and proper completion of services or delivery of goods, and does not begin to correct such failure or breach within 10 days (or such shorter period of time if commercially reasonable under the circumstances) after receipt of written notice from Buyer specifying such failure or breach.
- TERMINATION FOR CONVENIENCE.
In addition to any other rights of Buyer to terminate this contract, Buyer may, at its option, immediately terminate all or any part of this contract, at any time and for any reason, by giving written notice to Seller. Upon such termination, Buyer shall pay to Seller the following amounts without duplication: (a) the contract price for all goods or services which have been completed in accordance with this contract and not previously paid for; and (b) the actual costs of work-in-process and raw materials incurred by Seller in furnishing the goods or services under this contract to the extent such costs are reasonable in amount and are properly allocable or apportionable under generally accepted accounting principles to the terminated portion of this contract; less, however the sum of the reasonable value or cost (whichever is higher) of any goods or materials used or sold by Seller with Buyer’s written consent, and the cost of any damaged or destroyed goods or material. Payments made under this Paragraph shall not exceed the aggregate price payable by Buyer for finished goods that would be produced by Seller under delivery or release schedules outstanding at the date of termination. Except as provided in this Paragraph, Buyer shall not be liable for and shall not be required to make payment to Seller, directly or on account of claims by Seller’s subcontractors, for loss of anticipated profit, unabsorbed overhead, interest on claims or past due charges from Seller’s suppliers, product development and engineering costs, facilities and equipment rearrangement costs or rental, unamortized depreciation costs, or general and administrative burden charges from termination of this contract. Within 60 days from the effective date of termination, Seller shall submit a comprehensive termination claim to Buyer, with sufficient supporting data to permit Buyer’s audit and shall thereafter promptly furnish such supplemental and supporting information as Buyer shall request. Buyer, or its agents, shall have the right to audit and examine all books, records, facilities, work, material, inventories, and other items relating to any termination claim of Seller.
- INTELLECTUAL PROPERTY.
Seller agrees: (a) to indemnify, defend, and hold Buyer, its successors and customers harmless from and against any and all liability, claims, demands, actions, losses, suits, damages, judgments, attorney fees, costs, charges, expenses, and consequences of any liabilities, of any nature asserted by any person or entity, against Buyer in connection with, or arising out of, any suit, claim, or action for actual or alleged direct or contributory infringement of, or inducement to infringe, any United States or foreign patent, trademark, copyright, industrial design right, mask work, or other proprietary right by reason of the manufacture, use, or sale of the goods or services ordered, including infringement arising out of compliance with specifications furnished by Buyer, or for actual or alleged misuse or misappropriation of a trade secret, arising in any way in relation to the goods or services, including such claims in which Seller has provided only part of the goods or services ordered; (b) to waive any claim against Buyer under the Uniform Commercial Code or otherwise, including any hold harmless or similar claim, that any such infringement arose out of compliance with Buyer’s specification; (c) that Buyer is hereby granted a worldwide, nonexclusive, royalty free, irrevocable license to repair, and have repaired, to reconstruct and have reconstructed, rebuild and have rebuilt, the goods ordered hereunder; (d) that goods manufactured based on Buyer’s drawings and/or specifications may not be used for Seller’s own use or sold to third parties without Buyer’s express written authorization; and (e) that Buyer is hereby assigned all right, title, and interest in and to all patents and patentable ideas, trademarks, copyrights, and mask work rights created by Seller in its performance of this contract, and to the extent that copyrightable works are created in connection with Seller’s performance of this contract, such works shall be deemed “works made for hire” and shall be the exclusive property of Buyer, but to the extent such works do not qualify as “works made for hire,” Seller hereby assigns to Buyer all right, title, and interest in and to such copyrights, including all moral rights therein.
- TECHNICAL INFORMATION DISCLOSED TO BUYER.
Seller agrees not to assert any claim (other than a claim for patent infringement) with respect to any technical information that Seller shall have disclosed or may hereafter disclose to Buyer in connection with the goods or services covered by this contract.
To the extent caused by Seller’s negligent or willful conduct or actions, omissions or failure to act, Seller will indemnify, defend and hold Buyer harmless from and against any and all liability, claims, demands, actions, losses, suits, damages, judgments, attorney fees, costs, charges, expenses, and consequences of any liabilities, of any nature, including but not limited to personal injury, death, property damage, and breach of contract claims and suits, asserted by any person or entity, against Buyer in connection with, or arising out of, Seller’s supply of goods and/or services to Buyer hereunder and performance to this contract, except for such liability arising out of the sole negligence of Buyer.
Seller shall maintain insurance coverage with carriers acceptable to Buyer. Seller shall furnish to Buyer either a certificate showing compliance with these insurance requirements or certified copies of all insurance policies within 10 days of Buyer’s written request. The certificate will provide that the Buyer will receive 30 days’ prior written notice from the insurer of any termination or reduction in the amount or scope of coverage. Seller’s furnishing of certificates of insurance or purchase of insurance shall not release Seller of its obligations or liabilities under this contract.
- BUYER’S PROPERTY.
All supplies, materials, tools, equipment and other items furnished by Buyer, either directly or indirectly, to Seller to perform this contract, or for which Seller has been reimbursed by Buyer, shall be and remain the property of Buyer. Seller shall bear the risk of loss of and damage to Buyer’s Property. Buyer’s Property shall at all times be properly housed and maintained by Seller, at its expense, shall not be used by Seller for any purpose other than the performance of the Contract and shall not be moved from Seller’s premises without Buyer’s prior written approval. Buyer shall have the right to enter Seller’s premises at all reasonable times to inspect such property and Seller’s records with respect thereto.
- SERVICE AND REPLACEMENT PARTS.
Seller will sell to Buyer goods necessary for it to fulfill its service and replacement parts requirements at the most favorable price Seller sells such parts or goods to other customers. When requested by Buyer, Seller shall make service literature and other materials available at no additional charge to support Buyer’s service part sales activities.
- SUBCONTRACTOR RIGHTS AND OBLIGATIONS.
Unless explicitly stated, all subcontractor Contracts will be on a Scope of Work basis requiring the subcontractor to complete the work as described in the Contract Documents. Invoices in excess of the agreed upon Contract amount will not be accepted by the Buyer without express written consent via a work order authorization. As part of the Contract between the Buyer and Seller, the Seller agrees to provide working log of hours on-site, to be approved by Buyer, and include daily details of work performed on Monday by noon for the 7 previous days. If the Buyer agrees to a Time and Material contract with the Seller, the Seller agrees that the Contract is only enforceable for 10 working days from the date of the Contract and any work in excess of this time frame will require an additional order. Overtime hours for time and material contracts must be approved in writing.
The rights and remedies reserved to Buyer in this contract shall be cumulative with, and additional to, all other or further remedies provided in law or equity. Without limiting the foregoing, should any goods fail to conform to the requirements and warranties set forth in this contract, Buyer shall notify Seller and Seller shall, if requested by Buyer, reimburse Buyer for any incidental and consequential costs and damages caused by such nonconforming goods, including, but not limited to, costs, expenses, attorney fees and losses incurred by Buyer (a) in inspecting, sorting, repairing or replacing such nonconforming goods, (b) resulting from production interruptions, (c) conducting recall campaigns or other corrective service actions, and (d) claims for personal injury (including death) or property damage caused by such nonconforming goods.
Credits or benefits resulting or arising from the contract, including trade credits, export credits or the refund of duties, taxes or fees, shall belong to Buyer. Seller shall provide all information necessary (including written documentation and electronic transaction records) to permit Buyer to receive such benefits or credits, as well as to fulfill its customs related obligations, origin marking or labelling requirements and local content origin requirements, if any. Export licenses or authorizations necessary for the export of the goods shall be the responsibility of Seller unless otherwise indicated in the contract, in which event Seller shall provide such information as may be necessary to enable Buyer to obtain such licenses or authorization(s).
In addition to any right of offset provided by law, all amounts due to Seller under this or any other transaction between Buyer and Seller shall be considered net of indebtedness of Seller and its affiliates/subsidiaries to Buyer, and Buyer shall have the right to setoff such indebtedness against, or to recoup such indebtedness from, any amounts due to Seller and its affiliates/subsidiaries from Buyer.
Seller shall not, without first obtaining the written consent of Buyer, in any manner disclose to any third party, advertise, or publish the fact that Seller has contracted to furnish Buyer the goods or services covered by this contract, or use any trademarks, service marks, or trade names of Buyer in Seller’s advertising or promotional materials.
Seller will ensure that the goods, services, and all related information covered by this contract, including but not limited to design and manufacturing information, which Seller receives from Buyer (“Confidential Information”) will be kept in strict confidence. Seller will exercise reasonable precautions to prevent unauthorized disclosure of Confidential Information to any third party. Seller will not use the Confidential Information for any purpose other than for executing its obligations under this contract. This provision will survive cancellation, termination, or expiration of this contract.
- COMPLIANCE WITH LAWS.
Seller, and any goods or services supplied by Seller, shall comply with all applicable laws, rules, regulations, orders, conventions, ordinances, or standards in effect on the date Seller accepts the contract that relate to the manufacture, labeling, transportation, importation, exportation, licensing, approval, or certification of the goods or services, including, but not limited to, those relating to environmental matters, wages, hours and conditions of employment, subcontractor selection, discrimination, occupational health/safety, and motor vehicle safety. Seller further represents that neither it nor any of its subcontractors will utilize slave, prisoner, or any other form of forced or involuntary labor in the supply of goods or provision of services under this contract. At Buyer’s request, Seller shall certify in writing its compliance with the foregoing. Seller will indemnify, defend and hold Buyer harmless from and against any and all liability, claims, demands, actions, losses, suits, damages, judgments, attorney fees, costs, charges, expenses, and consequences of any liabilities, of any nature asserted by any person or entity, against Buyer in connection with, or arising out of, Seller’s noncompliance.
- NO IMPLIED WAIVER.
The failure of either party at any time to require performance by the other party of any provision of this contract shall in no way affect the right to require such performance at any time thereafter, nor shall the waiver of either party of a breach of any provision of this contract constitute a waiver of any succeeding breach of the same or any other provision.
Unless otherwise specifically prohibited by law, Seller may not assign or delegate its right or obligations under this contract without Buyer’s prior written consent.
- RELATIONSHIP OF PARTIES.
Seller and Buyer are independent contracting parties and nothing in the contract shall make either party the agent or legal representative of the other for any purpose whatsoever, nor does it grant either party any authority to assume or to create any obligation on behalf of or in the name of the other.
- GOVERNING LAW AND JURISDICTION.
This contract is to be construed according to the laws of the country (and state/province, if applicable) from which this contract is issued as shown by the address of Buyer. Any action or proceedings by Buyer against Seller must be brought by Buyer in any court(s) having jurisdiction over Seller or, at Buyer’s option, in the court(s) having jurisdiction over Buyer’s location, in which event Seller consents to jurisdiction and service of process in accordance with applicable procedures. Any actions or proceedings by Seller against Buyer may be brought by Seller only in the court(s) having jurisdiction over the location of Buyer from which this contract is issued.
The invalidity in whole or in part of any of these Terms or the Contract Documents shall not affect the validity or enforceability of any other part of these Terms or the Contract Documents.
- ENTIRE AGREEMENT.
This contract, together with the attachments, exhibits, supplements or other terms of Buyer specifically referenced in this contract, constitutes the entire agreement between Seller and Buyer with respect to the matters contained in this contract and supersedes all prior oral or written representations and agreements. This contract may only be modified by a purchase order amendment issued by Buyer and signed by both parties.