Purchase Order General Terms & ConditionsThe following Standard purchase order Terms and Conditions (“Terms”) only apply to transactions that do not have a signed written agreement between the parties. If there is such an agreement signed by both parties, then those terms shall be the terms that govern the transaction and relationship of the parties. In the absence of such a written agreement, duly executed by both parties, then these Terms provide you (“Seller”) with the guidelines and legal stipulations of any purchase order (“Purchase Order”) with Edison Manufacturing and Engineering, Inc. (“Purchaser”) for the goods and/or services that are described on the face of the Order. These Terms shall be part of and control any Purchase Order issued by either party.
1. Acceptance and terms and conditions: Seller accepts these Terms and any amendments to these Terms by transacting business with Purchaser. By receipt of these Terms, Seller agrees to be bound by, and to comply with all these Terms, which include any supplements to it, and all specifications and other documents referred to in any Purchase Order issued by Purchaser. These Terms apply to everything listed in any Purchase Order and constitute Purchaser's offer to Seller, which Purchaser may revoke at any time prior to Seller’s acceptance. These Terms are not a Purchase Order and are not an acceptance by Purchaser of any offer to sell, any quotation, or any proposal. Reference in these Terms to any such offer to sell, quotation, or proposal will not constitute a modification of any of these Terms. Terms and conditions different from or in addition to these Terms, whether contained in any acknowledgment Purchase Order or other document, or with delivery of any goods or services to Purchaser or otherwise, shall not be binding on Purchaser, whether or not they would materially alter these Terms, and Purchaser hereby rejects them. These Terms may be modified only by a written document signed by duly authorized representatives of Purchaser and Seller. Seller may not subcontract any production or services provided under these Terms or a Purchase Order issued by Purchaser without the express written consent of the Purchaser. Seller may not change any sub-supplier without the express written consent of the Purchaser.
2. Default:Time is of the essence in the performance of any Purchase Order issued or accepted by Purchaser. If Seller fails to perform, or so fails to make progress as to jeopardize performance of any Purchase Order issued by Purchaser in accordance with its terms, and does not cure such failure within a period of ten (10) days (or such longer period as Purchaser may authorize in writing) after receipt of notice from Purchaser specifying such failure, Purchaser may by written notice to Seller (a) terminate all or any part of any Purchaser Order and (b) procure, on such terms as it will deem appropriate, goods or services similar to those so terminated. Seller will continue performance of a Purchase Order to the extent not terminated and will be liable to Purchaser for any excess costs for such similar goods or services. As an alternate remedy, and in lieu of termination for default, Purchaser, at its sole discretion, may elect to extend the delivery schedule and/or waive other deficiencies in Seller's performance, in which case an equitable reduction in a Purchase Order price will be negotiated. If Seller for any reason anticipates difficulty in complying with the required delivery date, or in meeting any of the other requirements of a Purchase Order, Seller will promptly notify Purchaser in writing. If Seller does not comply with Purchaser's delivery schedule, Purchaser may require delivery by fastest way and charges resulting from the premium transportation must be fully prepaid and absorbed by Seller. The rights and remedies of Purchaser provided in this Section 2 will not be exclusive and are in addition to any other rights and remedies provided by the Uniform Commercial Code, by law, at equity or under these Terms.
3. Price: A Purchase Order must not be filled at a price higher than shown on the face of the Purchase Order. If no price is set forth on the front of the Purchase Order, the goods or services will be billed at the price last quoted or at the prevailing market price, whichever is lower, and, in any event, goods and services ordered under the Purchase Order will not be billed at a higher price than last quoted or charged without Purchaser's specific written authorization. Purchaser will be entitled at all times to set off any amount owed at any time by Seller or any of its affiliates to Purchaser or any of its affiliates against any amount payable at any time by Purchaser in connection with a Purchase Order. No extra charges of any kind will be allowed unless specifically agreed to in writing by the Purchaser. All applicable taxes arising out of transactions contemplated by a Purchase Order will be borne by Seller except as otherwise specified by the parties in writing. If Seller reduces its prices for such goods and/or services during the term of a Purchase Order, Seller shall correspondingly reduce the prices of goods and/or services sold thereafter to Purchaser under a Purchase Order.
4. Invoices, payment, and taxes:(a) Invoices shall be rendered on completion of services or delivery of goods and shall contain the Purchase Order Number, item number, description of goods or services, quantities, unit prices, date(s) rendered and total purchase price. Each invoice must refer to one, and only one, Purchase Order. (b) Payment shall be made on the terms of net 30 days from the date of invoice. All claims for money due or to become due from Purchaser shall be subject to deduction by Purchaser for any setoff or counterclaim arising out of this or any other of Purchaser's Orders with Seller.
5. Packaging: All goods must be packaged in the manner specified by Purchaser and shipped in the manner and by the route and carrier designated by Purchaser. If Purchaser does not specify the manner in which the goods must be packaged, Seller shall package the goods so as to avoid any damage in transit. If Purchaser does not specify the manner of shipment, route, or carrier, Seller shall ship the goods at the lowest possible transportation rates, consistent with Seller's obligation to meet the delivery schedule set forth in a Purchase Order.
6. Inspection: All goods and services will be subject to inspection and test by Purchaser at all times and places, including the period of manufacture and in any event prior to final acceptance. Final acceptance or rejection of the goods or services will be made as promptly as practical after delivery, but failure to inspect and accept or reject goods or services or failure to detect defects by inspection, will neither relieve Seller from responsibility for such goods or services as are not in accordance with a Purchase Order nor impose liabilities on Purchaser for them. Purchaser's payment for the goods shall not constitute its acceptance of the goods. Goods rejected and goods supplied in excess of quantities ordered may be returned to the Seller at Seller’s expense. Payment, if any, made for any goods rejected hereunder shall be promptly refunded by Seller. Seller will provide and maintain an inspection and process control system acceptable to Purchaser covering the goods and services ordered. Records of all inspection work by Seller will be kept complete and available to Purchaser during the performance of a Purchase Order and for seven (7) years after Seller's completion of a Purchase Order. If any of the goods or services are found at any time to be defective in material or workmanship, or otherwise not in conformity with the requirements of a Purchase Order, including any applicable drawings and specifications, then Purchaser, in addition to such other rights and remedies it may have by contract or by law or equity, at its sole discretion may reject and return such goods at Seller's expense, require Seller to inspect the goods and remove nonconforming goods and/or require Seller to replace nonconforming goods or services with conforming goods or services. If Seller fails to make the necessary inspection, removal, and replacement in a time and manner satisfactory to Purchaser, Purchaser may at its option inspect and sort the goods and Seller shall pay any sorting costs incurred by Purchaser.
7. Warranties: Seller represents and warrants that (a) all goods and services shall be free of any claim of any nature by any third person and that Seller will convey title to Purchaser free and clear of any liens or encumbrances; (b) all services shall be performed in a competent, workmanlike and professional manner consistent with industry standards and in accordance with generally accepted standards, are free from all defects, are fit for the particular purposes for which they are acquired, and are provided in strict accordance with the specifications or other requirements (including performance specifications) approved or adopted by Purchaser; (c) all goods sold will be of merchantable quality, free from all defects in design, workmanship and materials, and fit for the particular purposes for which they are purchased and that the goods and services are provided in strict accordance with the specifications, samples, drawings, designs or other requirements (including performance specifications) approved or adopted by Purchaser and (d) Seller shall not act in any fashion or take any action that will render Purchaser liable for a violation of any applicable anti-bribery legislation (including without limitation, the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act 2010), which prohibits the offering, giving, or promising to offer or give or receiving, directly or indirectly, money or anything of value to any third party to assist it, them or Purchaser in retaining or obtaining business or in procuring the goods or services. Purchaser's inspection, test, acceptance, or use of the goods shall not affect Seller's obligations under these warranties. Seller shall replace or repair, at Purchaser's option and at Seller's cost, defects of any goods not conforming to these warranties. If Seller fails to correct defects in or replace nonconforming goods within ten (10) days from the date the Purchaser notifies Seller of the defect or defects, Purchaser may, on ten (10) days prior written notice to Seller, either (i) make such corrections or replace such goods and charge Seller for all costs incurred by Purchaser, or (ii) revoke its acceptance of the goods in which event Seller shall be obligated to refund the purchase price and make all necessary arrangements, at Seller's cost, for the return of the goods to Seller. All warranties of Seller herein or that are implied by law shall survive any inspection, delivery, acceptance, or payment by Purchaser. Any attempt by Seller to limit, disclaim, or restrict these warranties or any remedies of Purchaser, by acknowledgment or otherwise, in accepting or performing a Purchase Order, will be null, void, and ineffective without Purchaser's written consent.
8. Indemnification: Seller shall indemnify and hold Purchaser and its affiliates harmless and, on Purchaser’s request, shall defend each of them from and against any or all third party claims, demands, litigation, or proceedings of whatever kind, whether based upon negligence, breach of express or implied warranty, strict liability, infringement of intellectual property rights, or any other theory, and from and against all direct, indirect, special, exemplary, incidental or consequential damages of every kind whatsoever, arising out of, by reason of, or in any way connected with the goods and/or services, the design, manner of preparation, manufacture, construction, completion, or delivery or non-delivery of any goods and/or services by Seller, any breach by Seller of any of its obligations hereunder, or any other act, omission or negligence of Seller or any of Seller's employees, workers, servants, agents, subcontractors, or suppliers. Seller shall, on request, pay or reimburse Purchaser or any other party entitled to indemnification hereunder for all costs and expenses, including attorneys' fees, as incurred by Purchaser or such other party in connection with any such claim, demand, litigation, proceeding, loss, or damage. In addition, for infringement claims, Seller will, at its own expense and at Purchaser’s option, either procure for Purchaser the right to continue using the allegedly infringing item, replace it with a non-infringing equivalent, or remove it and refund the purchase price and the transportation and installation costs thereof.
9. Limitation of liability: Purchaser's aggregate liability arising from or relating to these Terms or any Purchase Order is limited to the amount paid by purchaser for the goods and/or services. To the maximum extent allowable under applicable law, purchaser shall not be liable under this order for any special, incidental, consequential, indirect, or punitive damages including, without limitation, lost revenue or profit even if purchaser has been advised of the possibility of such damages.
10. Purchaser's property: Tangible or intangible property of any nature furnished to Seller by Purchaser or specifically paid for in whole or in part by Purchaser, and any replacements or attachments, are the property of Purchaser and, unless otherwise agreed in writing by Purchaser, will be used by Seller solely to render services or provide goods to Purchaser. Seller will not substitute any property or take any action inconsistent with Purchaser's ownership of such property. While in Seller's custody or control such property will be held at Seller's risk, will be kept insured by Seller at its expense for its replacement cost with loss payable to Purchaser, and will be subject to removal at Purchaser's written request, in which event Seller will prepare such property for shipment and redelivery to Purchaser in the same condition as originally received by Seller, reasonable wear and tear excepted, all at Seller's expense.
11. Changes: At all times Purchaser will have the right to make changes to a Purchase Order or these Terms, including changes to drawings, designs, configurations, specifications, quantities, methods of shipment or packing and delivery schedules or location of delivery. If any such changes cause an increase or decrease in the cost of or the time required for the performance of any work under this a Purchase Order, an equitable adjustment will be made in the contract price or delivery schedule, or both, and a Purchase Order will be modified in writing accordingly. Nothing in this Section, including any disagreement with Purchaser as to any claimed adjustment, will excuse Seller from proceeding or complying with a Purchase Order as changed. Any claim by the Seller for adjustment under this Section 10 must be in a detailed writing and delivered to Purchaser within five (5) days after the date Seller receives notification of change. Any change will be authorized only by a duly executed amendment to a Purchase Order. Information, such as technical information or guidance provided to Seller by representatives of Purchaser, will not be construed as a change within the meaning of this Section. If Seller considers that the conduct of any of Purchaser's employees has constituted a change under a Purchase Order, Seller will immediately notify Purchaser's Purchasing Manager, in writing, as to the nature of the change and any proposed adjustment, which will then be subject to this Section 10.
12. Compliance with laws: Seller represents and warrants that it is in compliance with and all goods and/or services supplied hereunder have been produced or provided in compliance with the applicable provisions of all federal, state, or local laws or ordinances and all related orders, rules and regulations. Seller shall comply with any provisions, representations, or agreements, or contractual clauses required to be included or incorporated by reference or operation of law regarding any Purchase Order. Seller shall be required to obtain and pay for any license, permit, inspection or listing by any public body or certification organization required in connection with the manufacture, performance, completion or delivery of any good and/or service.
13. Work on purchaser's premises: If Seller's work under a Purchase Order requires Seller to be on the premises of Purchaser or at Purchaser’s direction, Seller will take all necessary precautions to prevent any injury to persons or damage to property, including following any rules, procedures or other requirements of Purchaser.
14. Insurance: Seller will maintain Comprehensive General Liability (including Contractual Liability coverage insuring the liabilities assumed in these Terms), Automobile Liability and Employers' Liability insurance with limits of liability of not less than $5,000,000, as well as appropriate Workers' Compensation insurance as will protect Seller from all claims under any applicable workers' compensation and occupational disease acts. At Purchaser's request, Seller will furnish to Purchaser a Certificate of Insurance completed by its insurance carrier(s) certifying that the required insurance coverage is in effect, with waiver of subrogation, naming Purchaser as an additional insured, and containing a covenant that such coverage and will not be canceled or materially changed until ten (10) days after prior written notice has been delivered to the Purchaser.
15. Termination: Purchaser may terminate all or any part of a Purchase Order for convenience at any time by written notice to Seller. Upon such termination, Purchaser's liability will be limited to reasonable termination charges mutually agreed by Seller and Purchaser, provided that Seller must specify any proposed charges in writing within fifteen (15) days after termination. Any Purchase Order shall terminate automatically, without notice, if Seller becomes insolvent or the subject of any proceeding under the laws relating to bankruptcy or the relief of debtors or any assignment for the benefit of creditors by Seller.
16. Miscellaneous: (a) Non-assignment: Assignment of a Purchase Order or any interest in it or any payment due or to become due under it, without the written consent of the Purchaser, shall be void. An assignment will be deemed to include not only a transfer of a Purchase Order or such interest or payment to another party but also a change in control of Seller, whether by transfer of stock or assets, merger, consolidation, or otherwise. The decision by Purchaser to approve or disapprove an assignment shall be in Purchaser’s sole discretion.
(b) Transportation: All the prices are established as F.O.B. Seller and/or Origin Dock, Freight Prepaid, unless otherwise specifically provided on the front of this Order. Title and risk of loss shall not pass to Purchaser until delivery of the goods to the location designated on the face of a Purchase Order and acceptance by Purchaser. If Purchaser rightfully rejects the goods, receives a non-conforming tender, or revokes its acceptance, risk of loss and title shall be deemed to have remained with Seller. The responsibility for freight damaged merchandise will be assumed by Seller. No charges for unauthorized transportation will be allowed. Any unauthorized shipment, which will result in excess transportation charges, must be fully prepaid by the Seller. Seller will not declare any value on such materials shipped via United Parcel Service, Rail Express, Air Express, Air Freight or Parcel Post. Seller will release rail or truck shipments at the lowest released valuation permitted in the governing tariff or classification.
(c) Anticipation of delivery schedule: Unless otherwise agreed in writing, Seller will not make material commitments or production arrangements in excess of the amount or in advance of the time necessary to meet Purchaser's delivery schedule. Goods shipped to Purchaser in advance of schedule may be returned to Seller at Seller's expense.
(d) Seller's inventory: Purchaser will have no obligation to request quotations or place Purchase Orders with Seller, both of which will be in Purchaser's sole discretion. Purchaser acting in its sole discretion will determine the actual quantity of goods or services to be purchased. The quantity of goods or services, if any, specified in forecasts supplied by Purchaser from time to time, or otherwise, is an estimate only. Seller bears sole responsibility for managing Seller's raw material, work in process, and inventory, and Purchaser will have no liability with respect thereto (whether upon termination of a Purchase Order or otherwise) other than in connection with termination as provided in this Section 15.
(e) Force majeure: Purchaser may delay delivery and/or acceptance occasioned by causes beyond its control.
(f) Remedies: Each of the rights and remedies reserved to Purchaser in a Purchase Order shall be cumulative and additional to any other remedies provided in law or equity. No delay or failure by Purchaser in the exercise of any right or remedy shall affect any such right or remedy and no action taken or omitted by Purchaser shall be deemed to be a waiver of any such right or remedy.
(g) Publicity: Seller will not use Purchaser's name or logo in publicity, advertising, or similar activity, except with Purchaser's prior written consent. Seller will not disclose the existence of a Purchase Order or any of its respective terms to any third party without Purchaser's prior written consent.
(h) Documentation: It is agreed that all technical documentation and other literature necessary for the proper use of the goods or services will be provided to Purchaser with the goods or services, unless otherwise directed by Purchaser, and its cost is included in the price.
(i) Governing law: A Purchase Order, these Terms, and all related transactions, will be interpreted under and governed by the laws of the state of Michigan in the United States of America without regard to its conflict of law principles.
(j) Dispute resolution: Disputes arising under this Agreement will be resolved by the parties through good faith negotiations in the ordinary course of business. Any dispute not so resolved shall be resolved in state or federal court in Michigan. To the extent permitted by law, the Purchaser and Seller waive the right to a jury trial in any dispute between them. In the event of litigation between the parties, the losing party as determined by the Court shall be the actual costs and legal fees incurred by the prevailing party.
(k) Survival: Seller’s obligations under these Terms, will survive the termination of any Purchase Order.
(l) Waiver; modification: No claim or right arising out of a breach of a Purchase Order can be discharged in whole or in part by a waiver or renunciation of the claim or right unless supported by consideration and in a writing signed by the aggrieved party. The failure of Purchaser to enforce at any time or for any period of time any of the provisions hereof will not be construed to be a waiver of such provisions or of the right of Purchaser thereafter to enforce each and every such provision. A Purchase Order can be modified or rescinded only by a writing signed by authorized representatives from both parties.
(m) Notices: All notices, consents, waivers, and other communications required or permitted to be given pursuant to these Terms or a Purchase Order, shall be in writing and shall be deemed to have been delivered either (i) on the delivery date, if personally delivered, or if delivered by confirmed facsimile or e-mail, (ii) one (1) business day after delivery to any national overnight courier directing delivery on the next business day, receipt requested, or (iii) three (3) business days after deposit in the United States mail, certified mail, return receipt requested, with adequate postage affixed thereto. All notices to Purchaser shall be sent to ___________________________________and to Seller at its address as set forth in a Purchase Order, or at such other address as either party may designate in writing to the other party.
(n) Severability: If any provision of a Purchase Order or these Terms shall be held or deemed to be or shall, in fact, be illegal, inoperative or unenforceable, this provision shall not affect any other provision or provisions contained in this Order.
(o) Paragraph titles: The paragraph titles are solely for convenience of reference and shall not affect the meaning or construction of any provision of these Terms.
(p) Entire agreement: Provided that there is no written agreement, duly executed by both parties, applying to the transaction, these Terms and/or a Purchase Order, with such documents as are expressly incorporated by reference, is intended by the parties as a final expression of their agreement with respect to such terms as are included in it, and is intended also as a complete and exclusive statement of the terms of their agreement. No course of prior dealings between the parties and no usage of the trade will be relevant to determine the meaning of this agreement even though the accepting or acquiescing party has knowledge of the nature of the performance and opportunity for objection.