Last Revised: 8/16/2010
“Goods” means all goods, including documentation, and services provided by Seller under the Order. “Buyer” means Foss Manufacturing Company, LLC, and its affiliates and subsidiaries.
The Order consists of the following documents, listed in their order of priority in the event of a conflict: any change orders to the Order; the numbered Order; these Terms and Conditions; and any exhibits or schedules incorporated into the Order. Acceptance of the Order is expressly limited to the terms of the Order. Additional or different terms contained in Seller’s acceptance shall not become a part of the Order unless expressly agreed to in writing and signed by Buyer.
Seller shall invoice Buyer for the purchase price as agreed upon at time of sale. Buyer shall pay Seller, upon submission of a proper invoice, the purchase price for Goods delivered and accepted. Buyer may withhold all or part of payment if Buyer disputes Seller’s compliance with the terms of the Order. Buyer’s payment of this Order is not acceptance of the Goods. The Order number must appear on all invoices, notices and packing materials. Seller’s price shall include all taxes, except sales and use taxes. Buyer shall provide Seller with Buyer’s direct pay permit or exemption certificate where applicable.
Seller must comply at Seller’s expense with any packing and shipping instructions issued by Buyer. 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 Buyer 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, Buyer 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 Buyer the amount the price paid exceeds the price contained in the Order. Buyer’s retention of Goods is not acceptance of the Goods. In the event that any cancellation by Buyer is determined to be without proper cause, Seller’s damages shall be limited to the damages payable under Paragraph 14.
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.
Title to and risk of loss of the Goods shall pass to Buyer upon delivery and acceptance of the Goods. Title to the Goods shall be free and clear of all liens and encumbrances.
Buyer shall have free access to Seller’s and its subsuppliers’ facilities for inspection purposes. Upon delivery of the Goods to Buyer’s site, Buyer shall promptly inspect the Goods for conformance to the Order. Buyer’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. Buyer may reject non-conforming Goods at any time at Seller’s expense.
Seller warrants that the Goods delivered pursuant to the Order shall be free of design, material and workmanship defects, new, and in conformance with the Order. For a period of 12 months from Buyer’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. Buyer’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, Buyer may repair or replace any defect in warranted Goods at Seller’s expense.
At any time while Seller is on Buyer’s site, Seller shall (a) comply with the workers’ compensation and occupational disease law of the state where the services are performed; (b) maintain commercial general liability insurance with limits of not less than $1,000,000 each occurrence and aggregate; (c) maintain commercial general automobile liability insurance with limits for bodily injury and property damage of not less than $1,000,000 each accident. Policies written on a claims-made basis shall be maintained for five years after performance of the Order is completed. Prior to entering Buyer’s site, Seller shall provide Buyer with an acceptable certificate of insurance waiving subrogation against Buyer. The certificate of insurance must state that the insurance carrier has issued the insurance specified, that such policies are in force, and that the insurance carrier will give Buyer 30 days prior written notice of any material change in, or cancellation of, such policies. The insurance required by this section shall include contractual liability insurance covering the obligations under this Order.
Seller shall comply with all applicable laws, rules, regulations and orders of any governmental authority, and will obtain at its expense all permits and licenses, pertaining to its obligations under this Order. Unless exempted, Seller shall comply with the equal employment opportunity clause in Section 202 of Executive Order 11246 and all applicable rules, regulations, and relevant orders pertaining to Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, and Section 4212 of the Vietnam Era Readjustment Assistance Act of 1974, as amended. Seller shall comply with all applicable project and site rules. Seller agrees to indemnify and save Buyer harmless from and against any liability or damages, including attorneys’ fees, for non-compliance therewith by Seller. Seller shall provide Buyer with Material Safety Data Sheets for all applicable materials prior to shipment.
Seller warrants that the purchase or use of the Goods by Buyer will not infringe upon or violate any trademarks, patents, copyrights, trade secrets or other third party property rights. Seller agrees to indemnify and save Buyer harmless from and against any liability or damages, including attorneys’ fees, arising out of any alleged infringement or violation. Each party agrees (a) to protect the Confidential Information of the other with at least the same degree of care used to protect its own most confidential information; (b) not to use (except for the purpose described herein), publish or disclose to third parties such Confidential Information; and (c) upon the request of the other party, to promptly deliver to the other party all written copies of its Confidential Information. “Confidential Information” shall include, but not be limited to, engineering data and the dates of Buyer’s outage schedule.
Buyer may, for its convenience, terminate all or any part of the Order upon notice to Seller. Upon termination, Seller shall immediately stop work on the terminated portion of the Order and shall submit to Buyer an invoice with supporting information setting forth the Order price for the Goods delivered prior to the notice of termination, plus Seller’s actual, direct unavoidable costs resulting from the termination, less salvage value. Buyer shall not be liable to Seller for Seller’s lost profits on the terminated part of the Order.
(a) IN STATES OTHER THAN NEW HAMPSHIRE, TO THE EXTENT PERMITTED BY LAW, SELLER SHALL INDEMNIFY, DEFEND AT ITS EXPENSE, AND SAVE BUYER HARMLESS, FROM ANY LIABILITIES, COSTS AND CLAIMS, INCLUDING JUDGMENTS RENDERED AGAINST, AND FINES AND PENALTIES IMPOSED UPON, BUYER 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, EXCEPT THAT SELLER’S OBLIGATION TO INDEMNIFY BUYER SHALL NOT APPLY TO ANY LIABILITIES ARISING FROM BUYER’S SOLE NEGLIGENCE. TO THE EXTENT PROVIDED IN THIS SECTION, SELLER EXPRESSLY AGREES TO INDEMNIFY BUYER FOR BUYER’S ACTS AND OMISSIONS, NEGLIGENT OR OTHERWISE. (b) In New Hampshire, Seller shall indemnify and save Buyer harmless from any and all costs and expenses, including but not limited to reasonable attorneys’ fees and court costs, arising from or relating to 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 Order. (c) WITH RESPECT TO CLAIMS AGAINST BUYER BY SELLER’S EMPLOYEES, SELLER AGREES TO EXPRESSLY WAIVE ITS IMMUNITY AS A COMPLYING EMPLOYER UNDER THE WORKERS’ COMPENSATION LAW, BUT ONLY TO THE EXTENT THAT SUCH IMMUNITY WOULD BAR OR AFFECT RECOVERY UNDER OR ENFORCEMENT OF THIS INDEMNIFICATION OBLIGATION. (d) SELLER SHALL PAY BUYER’S REASONABLE ATTORNEYS’ FEES AND ALL COSTS OF LITIGATION ASSOCIATED WITH ENFORCEMENT OF THE OBLIGATION SET FORTH IN THIS SECTION.
Except as expressly provided herein, neither party shall be liable to the other for any 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 and subsidiary companies of Foss Manufacturing Company, LLC, are severally and not jointly liable for obligations arising hereunder.
Purchasing documents clearly and completely describe the ordered products including, where applicable: Precise identification, including name, part number, type, class, style, and grade; Title and revision level of relevant standards, specifications, drawings, process requirements, and other such technical data. Seller shall be an independent contractor of Buyer in the performance of this Order. No waiver by either party of any default shall be deemed a waiver of any subsequent default. This Order constitutes the entire agreement of the parties. 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 New Hampshire.