TERMS AND CONDITIONS OF PURCHASE
Purchase Orders are made subject to the following terms and conditions, in addition to those stated or referenced on the Purchase Order, and include any drawings, specifications, schedules, exhibits or other writings incorporated herein. As used in a Purchase Order "Buyer" means Etna Supply Company; "Seller" means the party named on the Purchase Order; and "UCC" means the Uniform Commercial Code in effect from time to time in the state of Michigan.
- 1. Agreement: In consideration of Seller agreeing to sell, and Buyer agreeing to buy goods or services identified in the Purchase Order, the Seller agrees as follows: These Terms and Conditions of Purchase, together with the terms and conditions of any other document prepared by Buyer and sent to Seller, constitute the agreement between the parties (the "Agreement"). Seller agrees to each and every term contained in the Agreement as a precondition to Buyer's performance. Any term or condition in any invoice, acknowledgment, or other form or document issued by Seller, regardless of the materiality of the term or condition, that differs from or is contrary to the terms and conditions contained in the Agreement are objected to and excluded unless expressly agreed to in a written acknowledgment issued by Buyer. No other terms or conditions not set forth in the Agreement shall apply unless expressly agreed to in a written acknowledgment issued by Buyer.
- 2. Seller's Acceptance: Acceptance of a Purchase Order from Buyer is expressly limited to these Terms and Conditions of Purchase. Any additional or different terms or conditions proposed by Seller shall constitute a counteroffer. Seller accepts a Purchase Order by signing and returning an acknowledgment copy of a Purchase Order, other written notice of acceptance which expressly refers to a Purchase Order and accepts the terms hereof, or commencement of performance. Acceptance of the Purchase Order must be received by Buyer within the time period specified on the Purchase Order.
- 3. Purchase Order Changes: Buyer may, at any time, by written notice to Seller make changes in any one or more of the following (i) applicable drawings, specifications, delivery schedules, exhibits or other writings forming a part of a Purchase Order; (ii) method of shipment or packing; (iii) place of delivery. If any such change causes a decrease in the cost or the time required for performance of a Purchase Order, an equitable adjustment shall be made in the price or delivery schedule, or both, and a Purchase Order shall be modified in writing to reflect such changes. If any such change causes a increase in the cost or the time required for performance of a Purchase Order, in order for Seller to be able to recover such increase, Seller must immediately notify Buyer of its claim for such an increase. Buyer may then request from Seller an estimate of the increase in the cost or the time required for performance of any change prior to ordering the same, whereupon Seller shall promptly submit to Buyer a firm bid in writing stating the amount of any increase or decrease. Seller shall not proceed with the change for which any such estimate has been requested unless and until Buyer gives written notice to Seller to make such change.
- 4. Delivery: Time is of the essence in a Purchase Order. Seller is responsible for all costs of delivery of goods and/or performance of services. Should Seller fail to comply with the delivery or performance terms of a Purchase Order, Buyer may terminate a Purchase Order in whole or part and may buy elsewhere and charge Seller any additional expense incurred thereby. Buyer expressly retains all its rights and remedies provided by law in the case of such default, and no action on the part of the Buyer shall constitute a waiver of any right or remedy. Neither Buyer nor Seller shall be liable by reason of any failure to deliver or delay in delivery due to any cause beyond reasonable control without fault or negligence.
- 5. Identification: Identification of the goods shall occur upon Seller's acceptance of a Purchase Order or as soon thereafter as the goods are identifiable.
- 6. Risk of Loss: Risk of Loss shall be upon the Seller until receipt of the goods by Buyer at the location identified on a Purchase Order or at such other location identified by Buyer.
- 7. Seller Warranties: (a) Seller warrants that the goods and/or services subject to a Purchase Order will conform to all applicable specifications and samples furnished or accepted by Buyer, will conform to any representations or statements made by Seller to Buyer, will consist of only first-class workmanship and materials (all of which materials shall be new unless otherwise specifically allowed by notation by Buyer on the Purchase Order), and will be free from any defects, latent or patent, in material, design, or workmanship; Seller acknowledges that Buyer has relied on representations or statements made by Seller to Buyer, and that Buyer is relying on Sellers' expertise, knowledge, skill, and judgment. (b) Seller warrants that it has complied, and the goods and/or services covered by a Purchase Order will comply, with all applicable federal, state and local laws, rules, regulations and orders, which directly or indirectly regulate or affect the manufacture and/or sale of such goods or services. Seller will furnish Buyer with guarantees and assurances in accordance with the applicable provisions of any such law, rule, regulation or order which provide a specific written guarantee or assurance to be given by Seller with respect to such goods or services. (c) Seller warrants that it has, or will have, at the time of delivery, good title to the goods covered by a Purchase Order, and that it has a right to transfer such goods, free from any security interest, lien or encumbrance. Before final payment, Seller shall, if requested, satisfy Buyer by affidavits or otherwise, that there is no outstanding security interest, lien or encumbrance for labor or material against the goods delivered to Buyer.
- 8. Disclaimers and Limitation of Liability Ineffective: Any attempt by Seller to disclaim any warranties, including those specified under the UCC, shall be ineffective. Seller shall remain liable for any indirect, special, incidental, consequential or punitive damages caused by Seller, and any attempt by Seller to limit Seller's liability as to Buyer shall be ineffective.
- 9. Price: (a) The price of the goods and/or services covered by a Purchase Order shall be the lesser of (i) the amount specified on the Purchase Order or (ii) the lowest price in effect on the date of shipment for comparable goods and/or services in comparable quantities, and Seller shall promptly notify Buyer in writing of any reduction in price required hereunder. (b) Buyer is not responsible for any charge not appearing on a Purchase Order.
- 10. Invoices and Payment: (a) An invoice for goods and/or services, with evidence of shipment properly signed by carrier's representative, if applicable, shall be submitted to Buyer for each shipment or performance of services. Error or omissions on invoices or delay in the receipt of invoices shall entitle Buyer to withhold payment without penalty or loss of any discount. Payment shall be made per the payment terms on the Purchase Order. (b) Except as otherwise provided herein, payment for goods and/or services covered by a Purchase Order shall be made only (i) after arrival of goods at destination or after completion of services, (ii) after Buyer's inspection and acceptance of goods and workmanship, (iii) after receipt of the appropriate and corrective invoices, and (iv) insofar as final payment is concerned, after Seller has complied with all of its obligations to Buyer. Buyer shall have the right to set off against a Purchase Order any amounts that Seller may owe to Buyer. (c) Neither inspection nor payment shall be deemed to waive any rights of the Buyer.
- 11. Right of Inspection: Buyer shall have the right to inspect the goods and/or services at the time and place of delivery or performance before paying for or accepting them.
- 12. Buyer's Property: (a) Any property furnished by Buyer to Seller in connection with a Purchase Order shall be and remain Buyer's property and Seller shall be deemed to be an insurer thereof. (b) Seller shall segregate, clearly mark and maintain complete inventory of all such property and will notify Buyer of any loss or destruction of or damage to such property. (c) Upon termination or completion of a Purchase Order Seller shall deliver any such property to Buyer, in good condition subject to ordinary wear and tear and normal manufacturing losses, in accordance with Buyer's instructions, or shall otherwise dispose of such property as directed by Buyer. (d) Seller shall maintain fire insurance with extended coverage and theft insurance for any such property and provide evidence of such coverage upon request.
- 13. Indemnification: Seller shall indemnify, defend and save Buyer harmless from any liability, loss, cost, penalty, damage or expense, including attorneys' fees, which Buyer may incur as a result of any claim, damage, injury, cause of action, proceeding, citation, or work stoppage arising out of or in any way connected with product or services provided by Seller pursuant to a Purchase Order. This indemnity includes all costs and attorneys fees, regardless of whether litigation is filed or arbitration demanded. This indemnity survives the termination or completion of the Purchase Order. This indemnity also includes all claims for patent infringement or any intellectual property claims.
- 14. Confidential Information: Seller acknowledges that any data, designs or other information disclosed by Buyer to Seller in connection with a Purchase Order is confidential and proprietary to Buyer and that use of or disclosure of this information other than as may be required in the course of Seller's performance of a Purchase Order will be detrimental to Buyer. Seller shall not in any manner advertise, publish or release any information concerning a Purchase Order without the prior written consent of Buyer, except as may be required by law.
- 15. Assignment and Transfer: Seller shall not assign or transfer any of its rights or obligations under a Purchase Order without the express prior written consent of Buyer.
- 16. Remedies: Buyer and Seller shall have all of the remedies afforded by the UCC, as well as any other remedies which may be provided by law.
- 17. Costs of Breach: In the event Seller shall breach in any way Seller's obligations under this, or any other agreement, to Buyer, Seller shall be liable to Buyer for all of Buyer's costs of remedying the breach including, but not limited to, attorney's fees and expenses
- 18. Waiver: Failure of Buyer to insist upon strict adherence to any term of a Purchase Order on any occasion shall not be considered a waiver or deprive Buyer of the right thereafter to insist upon strict adherence to that term or any other term of a Purchase Order. Any waiver must be in writing and signed by an authorized representative of Buyer.
- 19. Governing Law: A Purchase Order shall be governed by and construed in accordance with the laws of the State of Michigan without regard to its conflict of law doctrine.
- 20. General: Buyer's order number must appear on all packages, invoices and packing slips. All invoices must be rendered in duplicate. All invoices dated after the 25th of the months shall be considered dates as of the first of the following month. Seller must provide to Buyer the expected ship date of all orders. Please do not process any purchase order until pricing is correct.
- 21. Insurance/Bonding: The Seller must maintain and pay for insurance coverage of the types and with the limits set forth in this section and its subsections. Seller agrees and acknowledges that Buyer is entering into this Agreement in reliance on Seller's representation that the policies of insurance contemplated by these provisions will be in place, with all premiums paid.
- a. Such coverage must be maintained in a form and with companies acceptable to Buyer and must, notwithstanding the requirements of this section, cover bodily injury, and property damage.
- b. Each policy of insurance must name Buyer as an additional named insured, on a primary and non-contributory basis, which may not be limited and must include completed operations coverage for a minimum of three (3) years after completion of the contractual relationship between Buyer and the Seller, and must provide that the same may not be canceled or altered, except upon thirty (30) days prior written notice to Buyer.
- c. In the event any policy or policies of insurance that Seller is required to maintain is written on a "claims made" insurance form, each policy must have a "retroactive date" which is not later than the date on which the parties entered into their agreement. Furthermore, should insurance coverage be written on a "claims made" basis, Seller's obligation to provide insurance must be extended for an additional period equal to the statute of limitations for such claims in the State of Michigan, plus one year.
- d. By executing this agreement, and thereafter upon request, Seller must provide to Buyer a certification, signed by an authorized agent of Seller and sworn to before a notary public under penalty of law, of the following: Seller hereby certifies that it has not cancelled and that Seller has not delivered, sent by overnight courier, mailed, faxed, sent by telegram, or transmitted by any other means any notice of cancellation of the Policies.
- e. Certificates evidencing coverage by the policies of insurance identified in the provisions of this Agreement (the "Policies"), for instance in the form for a certificate for Additional Insured for Ongoing and Products/Completed Operations or its equivalent, must be delivered to Buyer prior to the delivery of any product and from time to time thereafter at Buyer's request. and the delivery to Buyer of current certificates is an absolute condition precedent to any obligation by Buyer to Seller.
- f. Seller is independently responsible for any desired coverage against damage or loss to its own materials, facilities, roofs, equipment, scaffolds, bracing and similar items not covered by other policies of insurance.
- g. Buyer and Seller waive all rights against each other, including, but not limited to, rights of subrogation for damages caused by fire and other perils to the extent covered by the insurance required to be maintained hereunder.
- h. Prior to any performance by Buyer or Seller, Seller must provide Certification of Insurance from an Insurance Company with an A.M. Best rating of A- or better evidencing coverage in amounts not less than the greater coverages required by the attached sample Certificate of Insurance and the following general principles.
- i. Workers' Compensation Insurance: Workers' Compensation and Employer's Liability Insurance shall be provided as required by law or regulation (statutory requirements). Employer's Liability insurance shall be provided in amounts not less than $500,000 per accident for bodily injury by accident; $500,000 policy limit by disease; and $500,000 per employee for bodily injury by disease. If Seller is a sole proprietor unable to obtain such insurance, this requirement may be satisfied by providing to Buyer certification from the applicable State agency that Seller is not subject to the State's worker's compensation coverage requirements.
- ii. Commercial General Liability Insurance: Covering Premises/Operations, nd Bodily Injury, Property Damage, Personal Injury and Advertising Injury. Blanket Contractual Liability, XCU, and Completed Operations Coverage, Broad Form Property Damage including completed operations in the following minimum limits, or such higher limits as Seller may specify:
Bodily Injury & Property Damage:
$1,000,000 Each Occurrence
$1,000,000 Personal & Advertising Injury
$2,000,000 Products and Completed Aggregate
$2,000,000 General Aggregate per project
$3,000,000 Umbrella Form
- iii. Automobile Liability: Covering all owned, non-owned and hired vehicles in the amount of $1,000,000 Combined Single Limit.
- iv. Completed Operations Liability: It is hereby agreed and understood that completed operations liability will be carried 3 years after the completion date of any project entered into using products that are the subject of this agreement.
- v. Seller must maintain these aggregate limits of insurance coverage for each project.
- i. The terms and requirements relating to insurance coverage are subject to change at any time and from time to time by Buyer in its sole discretion and Seller covenants and agrees to promptly comply with such changes.
- 22. Entire Agreement: A Purchase Order, and these Terms and Conditions of Purchase, together contain the complete agreement of the parties as to their subject matter, supersede all prior agreements with respect to their subject matter, and may not be amended or discharged except in writing signed by the duly authorized representatives of both parties.