Terms & Conditions

STANDARD TERMS AND CONDITIONS

  • APPLICATION. These Terms and Conditions will apply to all sales of Products by Vendor to Buyer as set forth in the Purchase Order that references these Terms and Conditions (and together with such Purchase Order, the “Agreement”). In the event of a conflict between the Purchase Order and the Terms and Conditions, the Purchase Order shall control. All purchases of Products by Buyer are expressly limited and conditioned upon acceptance of these Terms and Conditions. Any provisions additional to or different from the Agreement that may appear in any of Vendor’s acknowledgement, confirmation, writing, or in any other prior or later communication from Vendor to Buyer, unless such provision is expressly agreed to in a writing signed by Buyer, is expressly rejected. 
  1. ADDITIONAL TERMS OF PAYMENT.  Vendor shall provide Buyer with a properly documented invoice, with taxes separately listed, at such times and in such amounts as are set forth in the Purchase Order. Within sixty (60) days of Buyer’s receipt of the applicable invoice (the “Payment Period”), Buyer shall pay to Vendor such amounts set forth therein. The amounts invoiced to Buyer shall include all labor, materials, material handling equipment, packaging, shipping, insurance, supervision, testing and other services required for the manufacture and delivery and of the Products to Buyer. In the event that Buyer disputes any invoiced amount(s), Buyer will notify Vendor of the disputed amount(s) within the Payment Period and submit payment for all undisputed amounts in accordance with this Section 2. Upon Buyer’s notification, the Payment Period shall be suspended until Buyer and Vendor mutually agree to a resolution of such dispute, at which time Buyer shall make payment of such amounts within the greater of: (i) the remainder of the Payment Period or (ii) thirty (30) days from the date of such resolution.
  • DELIVERY. Vendor shall be responsible for packaging, loading and shipping of the Product in a manner sufficient to prevent damage or loss to the Product. Vendor shall deliver the Product to Buyer at the “ship to” address set forth in the Purchase Order DAP (Incoterms 2020) on or before the estimated delivery date set forth in the Purchase Order (the “Estimated Delivery Date”). Vendor shall provide any delayed Products to Buyer as soon as reasonably possible, and shall be responsible for any and all additional costs. For the purpose of clarity, Buyer shall be responsible for the satisfaction of all requirements for the importation of the Products into the United States, if applicable; provided, that Vendor shall (as soon as reasonably possible and at Vendor’s sole cost) provide any and all information and forms reasonably requested by Buyer. Acceptance of all Products shall be subject to inspection, test and audits by Buyer.
  • TITLE/RISK OF LOSS. Title and risk of loss in and to the Product shall pass to Buyer only upon delivery of such Product to Buyer.
  1. INTELLECTUAL PROPERY.
    1. All drawings, specifications, technical know-how, software, computer files, samples, molds, models, formulas, designs, tests, test results, manufacturing information or other proprietary information provided to Vendor by Buyer or developed by Vendor in exchange for payment from Buyer under this Agreement or any Purchase Order (“Buyer Intellectual Property”) will be and remain the sole property of Buyer. 
    2. Buyer hereby grants Vendor a limited, non-transferable, non-exclusive, royalty-free, worldwide, terminable license to use the Buyer Intellectual Property, but only for the purposes of manufacturing and selling the Products to Buyer as set forth in this Agreement. For the purpose of clarity, any Products incorporating Buyer Intellectual Property in any way may only be sold to Buyer and not to any third party.
    3. The Buyer Intellectual Property is confidential. Except as provided in this Section 5, no right, license, permission, or ownership or other interest of any kind in or to the Buyer Intellectual Property is given or transferred to or acquired by Vendor
  2. WARRANTY. Vendor warrants that each Product shall: (i) conform in all respects to the requirements of this Agreement, including the Product Description; (ii) be of good quality and free from all defects, whether patent or latent, in materials, workmanship, and design; (iii) be merchantable and fit for its intended purpose, whether expressed or reasonably implied; (iv) not infringe or misappropriate any United States or foreign patent, copyright, trade secret or other proprietary right (except with respect to any Buyer Intellectual Property); (v) be free and clear of and from all liens, charges and encumbrances of any kind whatsoever resulting from Vendor’s sale, manufacture or delivery thereof; and (vi) be manufactured and delivered to Buyer in compliance with all applicable law, best practices, and industry standards communicated by Buyer to Vendor.
  3. INDEMNIFICATION. 
    1. VENDOR SHALL DEFEND, INDEMNIFY AND HOLD BUYER AND ITS OFFICERS, DIRECTORS, MEMBERS, MANAGERS, EMPLOYEES AND AGENTS (THE “INDEMNIFIED PARTIES”) HARMLESS FROM AND AGAINST ANY AND ALL ACTIONS FOR BODILY INJURIES (INCLUDING DEATH) AND/OR LOSS OR DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY, INCLUDING COSTS AND REASONABLE ATTORNEY’S FEES (EACH, A “CLAIM”), TO THE EXTENT CAUSED IN ANY MANNER OR TO ANY EXTENT RESULTING FROM OR ARISING OUT OF A DEFECT OR NONCONFORMITY IN THE PRODUCTS (INCLUDING THE FAILURE OF THE PRODUCTS TO MEET THE PRODUCT DESCRIPTION) AND/OR VENDOR’S BREACH, DEFAULT, MISREPRESENTATION, NEGLIGENCE, BAD FAITH, GROSS NEGLIGENCE, RECKLESSNESS, WILLFUL MISCONDUCT OR OTHER WRONGFUL ACT OR OMISSION.
    2. WITHOUT LIMITING OR OTHERWISE ADVERSELY IMPACTING THE INDEMNIFIED PARTIES’ RIGHTS UNDER SECTION 7(A), VENDOR AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS BUYER FROM AND AGAINST ANY AND ALL CLAIMS THAT MAY BE SUFFERED OR INCURRED BY, ACCRUED AGAINST, CHARGED TO OR RECOVERABLE FROM THE INDEMNIFIED PARTIES ARISING OUT OF A CLAIM THAT ANY PRODUCT PURCHASED HEREUNDER (EXCEPT TO THE EXTENT ANY INFRINGEMENT OR MISAPPROPRIATION IS CAUSED BY OR ARISES FROM BUYER INTELLECTUAL PROPERTY, IF ANY) INFRINGES OR MISAPPROPRIATES ANY UNITED STATES OR FOREIGN PATENT, COPYRIGHT, TRADE SECRET OR OTHER PROPRIETARY RIGHT. THE OBLIGATIONS OF VENDOR SET FORTH HEREIN SHALL NOT APPLY TO EITHER (I) BUYER’S USE OF THE PRODUCTS IN A MANNER IN WHICH THE SAME WAS NEITHER CONTEMPLATED NOR DESIGNED, OR (II) BUYER’S FAILURE TO USE NON-INFRINGING SUBSTITUTE PRODUCTS FURNISHED BY VENDOR TO AVOID INFRINGEMENT.
  4. CANCELLATION, MODIFICATION. Buyer may, upon written notice to Vendor, terminate this Agreement or any Purchase Order in whole or in part if: (i) the Products, in Buyer’s sole discretion, breach any of the warranties set forth in Section 6, (ii) the Products are not delivered within 2 business days of the Estimated Delivery Date, (iii) Vendor is in breach of this Agreement, or (iv) in Buyer’s reasonable opinion the credit or ability of Vendor to perform becomes impaired, whereupon Buyer shall have the right to obtain the Products from a third party. Buyer may by written communication cancel or make changes to any Purchase Order subject to an equitable adjustment in the price, delivery schedule or both, where appropriate.
  5. INSURANCE. At the time of the delivery of the Products and for a period of 2 years thereafter, Vendor, at its sole cost and expense shall procure and maintain in full force and effect with insurers of recognized reputation insurance policies that cover types of potential liabilities customarily insured against by companies similarly situated and/or providing similar products to those provided by Buyer with commercially reasonable limits of liability.
  6. FORCE MAJEURE. Neither party shall have any liability to the other in the event of any circumstance beyond the reasonable control of such party, including, but not limited to an act of God, a shortage of raw materials and/or energy, epidemic or pandemic, war (declared or not), fire, flood, government enactment and strikes (each, an “Event of Force Majeure”). The affected party shall be excused from the performance of its obligations under this Agreement if such performance is prevented by an Event of Force Majeure as long as the condition constituting the Event of Force Majeure continues. To the extent that an Event of Force Majeure continues for more than 15 days, the party that is not delayed or prevented from performing by such Event of Force Majeure, may terminate this Agreement immediately by providing written notice to the other party.
  7. ASSIGNABILITY. The rights and duties under the Agreement are not assignable or transferable by either party, in whole or in part, by operation of law or otherwise, without the prior written consent of the other party, such consent not to be unreasonably withheld. Any assignment or attempted assignment in contravention of the foregoing shall be null and void and shall be considered a material breach of the Agreement.
  8. GOVERNING LAW. The Agreement and its execution, performance, interpretation, construction and enforcement shall be governed by the laws of the State of Illinois, without regard to its conflicts of law rules. Any action or proceeding between Buyer and Vendor relating to the Agreement shall be commenced and maintained exclusively in the State or federal courts located in Chicago, Illinois, and each party submits itself unconditionally and irrevocably to the personal jurisdiction of such courts.
  9. NOTICE. All notices, consents, communications or transmittals under the Agreement shall be in writing and shall be deemed received on the day of delivery if personally hand delivered or sent by electronic transmission (with written confirmation of the completed transmittal); or within 2 business days if mailed as certified or registered mail with return receipt, postage prepaid addressed to the party to whom such notice is given at the address of such party stated in the Agreement. 
  • ENTIRE AGREEMENT; AMENDMENT; WAIVERS. The Agreement shall supersede all prior negotiations, discussions, and dealings concerning the subject matter hereof, and shall constitute the entire agreement between the parties concerning the subject matter hereof. There are no understandings, inducements, commitments, conditions, representations or warranties of any kind, whether direct, indirect, collateral, express or implied, oral or written, from either party to the other, other than as contained in the Agreement. Neither party shall claim any amendment, modification or release of any provisions hereof unless the same is in writing and signed by both parties. No waiver by either party of any breach of any terms, conditions or obligations under the Agreement shall be deemed a waiver of any continuing or subsequent breach of the same or any other terms, conditions or obligations hereunder.
  1. INDEPENDENT CONTRACTORS. The parties are independent contractors only and are not partners, master/servant, principal/agent or involved herein as parties to any other similar legal relationship with respect to the transactions contemplated under the Agreement or otherwise, and no fiduciary, trust, or advisor relationship, nor any other relationship imposing vicarious liability shall exist between the parties under the Agreement or otherwise at law.
  2. NO THIRD PARTY BENEFICIARIES. The Agreement is solely for the benefit of, and shall inure to the benefit of, Buyer and Vendor, and shall not otherwise be deemed to confer upon or give to any third party any right, claim, cause of action or other interest herein.
  • SEVERABILITY. The invalidity or unenforceability of any provision of the Agreement shall not affect the validity or enforceability of its other provisions and the remaining provisions shall remain in full force and effect.