G&S METAL PRODUCTS COMPANY, INC.
TERMS AND CONDITIONS
The following terms and conditions shall apply to all G&S purchase orders, change orders and blanket orders, in addition to any terms set forth on the face of an individual such order or in any plans, specifications or other documents incorporated by reference (each, collectively, an “Order”).
1. Definitions. “Goods” means all goods, articles, documentation, drawings, prints and services provided by Seller under the Order. “G&S” means one or more of the affiliated companies of G&S Metal Products Company, Inc. identified on the Order.
2. Acceptance. This Order is an offer to Seller for the purchase of Goods and includes and is governed by these Terms and Conditions of Purchase (“Terms”). This Order supersedes all prior agreements, orders, quotations, proposals and other communications regarding the Goods covered by this Order. This Order does not constitute an acceptance of any offer or proposal made by Seller. Any reference in this Order to any offer or proposal made by Seller is solely to incorporate the description or specifications of Goods in the prior proposal, but only to the extent that the description or specifications do not conflict with the description and specifications in this Order. Seller accepts these Terms and forms a contract by doing any of the following: (a) commencing any work under this Order; (b) accepting this Order in writing; or (c) any other conduct that recognizes the existence of a contract with respect to the subject matter of this Order. THIS ORDER IS LIMITED TO AND CONDITIONAL UPON SELLER’S ACCEPTANCE OF THESE TERMS EXCLUSIVELY. Any additional or different terms proposed by Seller, whether in Seller’s quotation, acknowledgement, invoice or otherwise, are material alterations and are expressly rejected by G&S, and will not become part of this Order.
3. Requirements. All Goods furnished under this Order must comply strictly with any specifications, instructions, drawings, data, samples and other descriptions furnished or accepted by G&S. Quantities listed in this Order are G&S’s best estimate of the quantities of Goods it might purchase from Seller for the contract term specified in this Order. If no other quantity is stated on the face of this Order or if the quantity is blank or states “blanket” or a similar term, then this Order is a requirements contract under which Seller is required to supply all of G&S’s requirements. G&S’s requirements shall be defined as those quantities ordered by G&S from time to time, as evidenced by written releases issued by G&S from time to time. G&S’s requirements are determined by the needs of G&S’s customers and such needs may change from time-to-time. If the requirements of G&S’s customers or market, economic or other conditions require changes in delivery schedules, G&S may change the rate of scheduled shipments or direct temporary suspension of scheduled shipments without entitling Seller to a price adjustment or other compensation. If the Order covers services, G&S is required to purchase such services to the extent expressly stated in a work order signed by G&S. Unless expressly stated on the face of the Order or in a signed agreement, G&S is not required to purchase goods and/or services exclusively from Seller.
4. Payment. Prices shall be as agreed to between G&S and Seller and specified in this Order. Seller warrants to G&S that all prices, terms, warranties and benefits taken as a whole granted to G&S are at least as favorable as those offered by Seller to any of its other customers ordering similar goods and/or services in similar quantities. Seller agrees that any price reduction made in Goods covered by this Order subsequent to the placement of this Order will be immediately applicable to this Order. Except as provided in the preceding sentence, prices are firm for the duration of this Order, and no price increase, surcharge or other addition to the price may be applied to the Goods covered by this Order. Except as may be otherwise provided in this Order, the price specified includes all applicable federal, state and local taxes. Payment for Goods accepted by G&S shall be net 60 days from the date of receipt of an accurate invoice from Seller, unless otherwise specified. G&S may withhold payment pending receipt of evidence, in the form and detail requested by G&S, of the absence of any liens, encumbrances, or claims on goods and/or services provided under this Order. G&S shall have the right to offset any claim for reimbursement of costs and damages against any and all sums owing to Seller.
5. Shipment and Delivery. Seller must comply at Seller’s expense with any packing and shipping instructions issued by G&S. Seller is responsible for loss or damage to the Goods caused by improper packing. Seller is responsible for additional costs caused by Seller’s failure to comply with shipping instructions. Seller must give G&S immediate notice of its anticipated failure to meet the shipment or delivery schedule. If Goods are not shipped or delivered on time, or in the event of any other failure to perform this Order by Seller, G&S may, at its option, in whole or in part, and without waiving its claim for damages against Seller: (a) cancel the Order; (b) return the Goods to Seller at Seller’s expense; (c) keep the Goods; and/or (d) purchase similar goods in the open market, in which case Seller must pay G&S the amount the price paid exceeds the price contained in the Order. G&S’s retention of Goods is not acceptance of the Goods. In the event that any cancellation by G&S is determined to be without proper cause, Seller’s damages shall be limited to the damages payable under Paragraph 11. TIME IS THE ESSENCE of this Order.
6. Force Majeure. Neither party shall be in breach of the Order to the extent that any delay or default in performance is due to causes beyond the reasonable control of the delayed or defaulting party. If Seller is subject to a force majeure event that lasts for fourteen (14) days or more, G&S may, in addition to any other rights granted herein or under law or equity, terminate this Order, in whole or in part, without liability to Seller.
7. Title and Risk of Loss. Title to and risk of loss of the Goods shall pass to G&S upon delivery and acceptance of the Goods. Title to the Goods shall be free and clear of all liens and encumbrances.
8. Inspection. G&S shall have free access to Seller’s and its subsuppliers’ facilities for inspection purposes. Upon delivery of the Goods to G&S’s site, G&S shall promptly inspect the Goods for conformance to the Order. G&S’s inspection or acceptance of the Goods shall not relieve Seller of its obligation to comply with the terms of the Order, or of the design, workmanship or material warranties. G&S may reject non-conforming Goods at any time at Seller’s expense.
9. Warranty. Seller warrants that the Goods delivered pursuant to the Order shall be merchantable, fit for the particular purpose intended, free of design, material and workmanship defects, new, and in conformance with the Order. For a period of 12 months from G&S’s first use of the Goods, Seller shall repair or replace, at its expense, including any installation or transportation cost, any defective or non-conforming Goods. G&S’s acceptance of the Goods shall not relieve Seller of its warranty obligations. If Seller fails to correct a defect within a reasonable period of time, or in the event of an emergency, G&S may repair or replace any defect in warranted Goods at Seller’s expense. In addition G&S may claim damages for defects according to law.
10. Infringement and Confidentiality. Seller warrants that the purchase or use of the Goods by G&S will not infringe upon or violate any trademarks, patents, copyrights, trade secrets or other third party property rights. Seller agrees to indemnify and save G&S harmless from and against any liability or damages, including attorneys’ fees, arising out of any alleged infringement or violation. All G&S information is proprietary and confidential to G&S and will be used solely by Seller for the purposes of this Agreement. Any and all such G&S information shall be treated and protected by Seller as strictly confidential and shall not be disclosed to any third party without the prior written consent of G&S.
11. Termination. This Order may be terminated immediately by G&S without liability to Seller if any of the following or comparable events occur, and Seller will reimburse G&S for all costs incurred by G&S in connection with any of the following, including without limitation attorneys’ and other professional fees: (i) Seller becomes insolvent; (ii) Seller files a voluntary petition in bankruptcy; (iii) an involuntary petition in bankruptcy is filed against Seller; (iv) a receiver or trustee is appointed for Seller; (v) Seller needs accommodations from G&S, financial or otherwise, in order to meet its obligations under the Order; or (vi) Seller executes an assignment for the benefit of creditors. G&S may terminate all or any part of this Order, without liability to Seller, if Seller: (a) repudiates, breaches or threatens to breach any of the terms of the Order; (b) fails or threatens not to deliver Goods or perform services in connection with the Order; (c) fails to make progress or to meet reasonable quality requirements so as to endanger timely and proper completion or delivery of Goods and does not correct the failure or breach within ten (10) days (or such shorter period of time if commercially reasonable under the circumstances) after receipt of written notice from G&S specifying the failure or breach. G&S, by written notice, may terminate this Order in whole or in part at any time for its convenience. If this Order is terminated for the convenience of G&S, Seller shall be compensated proportionately to the extent that Goods ordered have been delivered to and accepted by G&S prior to the effective date of termination. Other than to this extent, G&S shall not be liable to Seller for any damages on account of its failure to accept all of the Goods ordered, including, without limitation, other costs or damages for loss of profit or revenue. In addition to the foregoing, G&S shall be entitled to a refund of any progress payment made prior to the date of termination.
12. Indemnification. SELLER SHALL INDEMNIFY, DEFEND AT ITS EXPENSE, AND SAVE G&S HARMLESS, FROM ANY LIABILITIES, COSTS AND CLAIMS, INCLUDING JUDGMENTS RENDERED AGAINST, AND FINES AND PENALTIES IMPOSED UPON, G&S AND REASONABLE ATTORNEYS’ FEES AND ALL OTHER COSTS OF LITIGATION, ARISING OUT OF THE ORDER, INCLUDING INJURIES, DISEASE OR DEATH TO PERSONS, OR DAMAGE TO PROPERTY, INCLUDING ENVIRONMENTAL CLAIMS AND LIABILITIES, CAUSED BY SELLER, ITS EMPLOYEES OR AGENTS, OR IN ANY WAY ATTRIBUTABLE TO THE PERFORMANCE OF THE ORDER. TO THE EXTENT PROVIDED IN THIS SECTION, SELLER EXPRESSLY AGREES TO INDEMNIFY G&S FOR G&S’S ACTS AND OMISSIONS, NEGLIGENT OR OTHERWISE. SELLER SHALL PAY G&S’S REASONABLE ATTORNEYS’ FEES AND ALL COSTS OF LITIGATION ASSOCIATED WITH ENFORCEMENT OF THE OBLIGATION SET FORTH IN THIS SECTION.
13. Limitation of Liability. G&S shall not be liable to Seller for any of its incidental, indirect, special, punitive or consequential damages. Seller must bring any cause of action arising under this Order within one year from the time the cause of action accrues. The affiliated companies of the G&S Metal Products Company, Inc. are several and not jointly liable for obligations arising hereunder.
14. Changes. G&S reserves the right at any time to make changes in drawings, designs, specifications, quantities and delivery schedules as to any Goods covered by this Order and Seller shall be bound by any such changes. Any differences in price or time for performance resulting from such changes shall be equitably adjusted and agreed to by G&S. Any claim by Seller for adjustment under this Paragraph must be asserted within thirty (30) days from the date of notification of the change. Seller shall not make changes to the specifications or design of any Goods supplied under this Order without the prior written approval of G&S.
15. Compliance with Laws. In furnishing Goods required under this Order or any amendment thereto, Seller represents warrants and agrees that it shall comply with the provisions of all applicable federal, state, and local laws, regulations, orders and all applicable export laws, rules and restrictions. Seller shall provide North American Free Trade Agreement (“NAFTA”) certificate to G&S as required. Additionally, Seller also represents and warrants that it is in conformity with all applicable international laws rules and regulations, including but not limited to working hours and conditions, non-discrimination, child or prison labor, forced and indentured labor and product safety, and that it is in compliance with all of G&S’s customers’ ethical standards and requirements. Notwithstanding the above, G&S and Seller expressly agree that the U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Order and is specifically and wholly excluded.
16. Remedies. The remedies herein reserved shall be cumulative and additional to any other or further remedies provided at law or in equity. Seller will reimburse G&S for any incidental or consequential damages arising out of Seller’s breach of this Order, or related to any nonconforming Goods, including without limitation costs, expenses and losses incurred directly or indirectly by G&S or its customer(s): (a) in inspecting, sorting, repairing or replacing the nonconforming Goods or any system or component that incorporates such nonconforming Goods; (b) resulting from production interruptions or slowdowns; (c) conducting recall campaigns or other corrective service actions including, without limitation, the amounts paid to distributors and/or dealers for material and replacement parts and the labor costs to perform such work; or (d) resulting from personal injury (including death) or property damage caused by the nonconforming Goods. G&S’s damages include reasonable attorneys’ and other professional fees incurred by G&S. If requested by G&S, Seller will enter into a separate agreement for the administration or processing of warranty charge-backs for nonconforming Goods, and will participate in and comply with warranty claims reduction or related programs as directed by G&S that relate to the Goods. In any action brought by G&S to enforce Seller’s obligations in connection with the production or delivery of Goods, the parties agree that G&S does not have an adequate remedy at law and G&S is entitled to an immediate order for specific performance of Seller’s obligations, plus G&S’s reasonable attorneys’ fees.
Miscellaneous. Seller shall be an independent contractor of G&S in the performance of this Order. No waiver by either party of any default shall be deemed a waiver of any subsequent default. If any provision of this Order is held to be invalid, such invalidity shall not affect the remaining provisions of this Order. This Order shall be governed by the laws of the State of Ohio. Each party agrees to personal jurisdiction in any action brought in any court, Federal or State, within the County of Cuyahoga, State of Ohio having subject matter jurisdiction over the matters arising under this Order. Any suit, action or proceeding arising out of or relating to this Agreement shall only be instituted in the County of Cuyahoga, State of Ohio. Each party waives any objection which it may have now or hereafter to the laying of the venue of such action or proceeding and irrevocably submits to the jurisdiction of any such court in any such suit, action or proceeding. It is the Seller’s responsibility to comply with this and all documents referenced specifically in the Order and to clarify any inconsistencies or conflicts therein, such as the terms of the Order, additional terms and conditions, general specifications, detailed specifications, and the like furnished by G&S in connection with the Order. Should Seller fail to contact G&S to resolve these conflicts or inconsistencies, Seller shall be solely responsible for errors resulting from conflicts or inconsistencies.