TWIN CITY FAN COMPANIES, LTD.
TERMS AND CONDITIONS OF PURCHASE
- AGREEMENT. These Terms and Conditions and the purchase order issued by, or otherwise approved by, Twin City Fan Companies, Ltd. (“Buyer”) and describing the goods and/or services being sold to Buyer (“collectively “Purchase Order”), together with any non-disclosure agreement executed between Buyer and the other party hereto (the “Seller”), constitute the entire agreement between the parties and supersede all other agreements and understandings, whether written or oral, between the parties with respect to the subject matter hereof. This Purchase Order shall not be construed as an acceptance of any previous offer by Seller, and with respect to any such previous offer, this Purchase Order shall operate as a rejection and counteroffer. Any additional or different terms proposed by the Seller or any attempts by Seller to vary in any degree any of the terms in this Purchase Order are hereby objected to and rejected. Reference to Seller’s bids or proposals, if noted on this Purchase Offer, shall not affect the provisions hereof, unless specifically provided to the contrary herein. Seller’s return to Buyer of a copy hereof or other written or oral acknowledgement of Seller’s acceptance of this Purchase Order, or Seller’s commencement of any services provision of any goods ordered in this Purchase Order shall be deemed to constitute Seller’s acceptance of the terms of this Purchase Order. None of the terms and conditions contained herein may be added to, modified, superseded or otherwise altered except by written instrument signed by an authorized representative of Buyer and each shipment received by Buyer from Seller shall be deemed to be only upon the terms and conditions set forth herein.
- PACKAGING AND SHIPPING. Seller shall pack or otherwise prepare all goods for shipment so as to secure the lowest transportation rate, meet carrier’s requirements, and safeguard against damage from weather and transportation. Buyer reserves the right to charge Seller for any transportation or replacement costs resulting from Seller’s failure to comply with shipping instructions. No charge will be allowed for drayage, packaging, crating or storage. Each container must be labeled showing a Purchase Order number and a packing sheet showing Purchase Order number and part numbers must be included in at least one package marked “Packing Slip Enclosed.”
- TITLE AND RISK OF LOSS. Unless otherwise mutually agreed in writing on this Purchase Order, all shipments under this Purchase Order shall be DPP (Delivered Duty Paid) Buyer’s plant (Incoterms 2010). Title and all risk of loss shall pass from Seller to Buyer at Buyer’s plant or the Buyer-designated destination. All delivery expenses, including transportation, freight, insurance, and any other shipping costs, and risk of damage or loss during delivery and transportation, shall be borne by Seller. Upon transfer of title as provided above, Buyer will receive such goods free and clear of all liens and encumbrances.
- INSPECTION. All goods shall be received subject to Buyer’s inspection and rejection. Defective goods not in accordance with Buyer’s specifications will be held for Seller’s instruction and at Seller’s risk and, if Seller so directs, will be returned at Seller’s expense. Buyer, in addition to its other remedies at law, reserves the right, at its option, to have rejected goods replaced in place or otherwise, and also the right to accept such part of any shipment that fulfills Buyer’s specifications and reject any part not meeting such specifications, and to consider the Purchase Order breached to the extent of the amount of rejected goods. No goods returned as defective shall be replaced without written authorization from Buyer. Buyer has the option to inspect goods or materials at Seller’s facility, but this shall in no way waive Buyer’s right of inspection and approval at a reasonable time after delivery to the Buyer’s plant. Payment for materials on the Purchase Order prior to inspection shall not constitute an acceptance thereof, nor shall acceptance remove Seller’s responsibility for latent defects. Nothing in this paragraph shall in any way limit Buyer’s rights under the paragraph hereof entitled “Warranties.”
- DELIVERIES; TIME IS OF THE ESSENCE. Deliveries are to be made both in the quantities and at the times and places specified herein as such delivery and schedules are of the essence. Should Seller fail to deliver all goods by the dates set forth herein, Buyer will suffer damages that may not be totally calculable. Therefore, Seller and Buyer hereby agree that Seller shall pay to Buyer liquidated damages for late delivery of the goods in the amount of one (1) percent (1%) of the total order value per day of late delivery up to fifteen percent (15%) of the total order value. Seller shall not be liable for delays or defaults in deliveries beyond its control and without its fault or negligence due to acts of God, war, riot, civil insurrection or acts of common enemy (terrorism), fire, flood, strikes, or orders from governmental authorities. If at any time Seller has reason to believe that deliveries will not be made as scheduled, written notice setting forth the cause of the anticipated delay shall be given immediately to Buyer.
- EXCESS GOODS. Except for customary quantity variations recognized by trade practice, goods in excess of those specified will not be accepted, and such goods will be held at Seller’s risk. Buyer may, and at Seller’s direction shall, return such goods at Seller’s risk, and all transportation charges, both to and from the original destination, shall be paid by Seller.
- NOTICE OF DELAYS. Whenever any event including, without limitation, an actual or potential labor dispute, is delaying or threatens to delay Seller’s timely performance of this Purchase Order, Seller shall immediately give notice thereof to Buyer, including relevant information with respect thereto.
- COMPLIANCE WITH APPLICABLE LAWS. Seller represents, warrants and agrees that the manufacturing, delivery and shipment of the goods and any materials provided pursuant to this Purchase Order and the performance of any related services by Seller shall comply with all applicable laws, statutes, regulations, rules or orders of any governmental authority that are applicable or binding to Seller’s goods, services or operations including, without limitation, the Occupational Safety and Health Act regulations and standards; the Fair Labor Standards Act and all labor laws, rules and regulations; the equal employment opportunity (EEO) requirements of Executive Order 11246, as amended, and its implementing regulations; all other laws and regulations applicable to import and export, anti-bribery, anti-corruption, employee or environmental protection, the handling of hazardous materials or electrical or electronic equipment or packaging or related waste or the registration or use of chemicals (“Applicable Laws”). Seller further expressly represents and warrants that the goods and materials provided under this Purchase Order contain no asbestos. Seller shall provide to Buyer Material Safety Data Sheets for hazardous materials prior to or with shipment of the goods. Upon Buyer request, Seller shall provide Buyer with sufficient documentation to comply with its legal and regulatory obligations including providing any information relating to the origin of conflict minerals and notifying Buyer if the goods are compliant with all applicable Restriction of Hazardous Substances (“RoHS”) directives or legislation.
- PAYMENT. Invoices will be paid 60 days following the later of: (i) date of delivery at Buyer’s plant specified in this Purchase Order, (ii) Buyer’s receipt and acceptance of goods/services, (iii) Buyer’s receipt of an approved invoice. All invoices shall contain the Buyer’s Purchase Order number. If required, and as a condition precedent to making any payments, with each invoice, Seller shall complete and sign the applicable conditional final lien waiver and release form provided by Buyer. Failure of Seller to provide Buyer the proper release forms with invoices will result in a delay in payment.
- TAXES. Any applicable federal, state or local sales, use or similar taxes on sale of the goods and/or services must be separately stated and itemized. It is understood that unless such taxes are separately stated and itemized, no such taxes are included in the amount billed. Tax exemption certificates acceptable to the taxing agency or other evidence of exemption will be furnished by Buyer in lieu of payment of any such taxes so invoiced.
- AUDIT. Seller agrees to maintain records and accounts pertaining to the sale of goods under this Purchase Order for a period of five (5) years after final payment has been made to Seller. Buyer shall have the right to audit, copy and inspect, or cause to have audited, copied or inspected, such records and accounts during such period. In the event that an audit reveals that Seller has overcharged Buyer, Seller shall refund such overpayment within ten (10) days following a written demand.
- WARRANTIES. Seller warrants that all of the goods and work covered by this Purchase Order will be of new manufacture and will conform to the specifications, drawings, samples or other description furnished or specified by Buyer, and will be merchantable, of good material and workmanship and free from defect. Seller warrants that all goods covered by this Purchase Order, which are the product of the Seller or are in accordance with Seller’s specifications, will be fit and sufficient for the purposes intended. Such warranties, together with Seller’s service warranties and guarantees, if any, shall survive inspection, test, acceptance of, and payment for the material and work and shall run to Buyer, its successors, assigns and customers. Buyer may, at its option, either return for credit or refund or require prompt correction or replacement of the defective or nonconforming goods or portions thereof. Return to Seller of any defective or nonconforming goods and delivery to Buyer of any corrected or replaced goods shall be at Seller’s expense. Defective or nonconforming goods shall not be corrected or replaced unless specified by Buyer’s written order. Goods required to be corrected or replaced shall be subject to the provisions of this provision and Section 4 (Inspection) in the same manner and the same extent as goods originally delivered under the Purchase Order. Seller’s liability shall extend to all damages caused by the breach of any of the foregoing warranties, including direct, indirect, consequential and incidental damages, such as disassembly, removal, inspection, re-installation, re-testing, cost of transportation and warehousing. Seller warrants that the prices of the items set forth herein do not exceed those charged by the Seller to any other customers purchasing the same items in like or smaller quantities. If this Purchase Order includes the purchase of services, Seller warrants that qualified personnel shall perform all such services in a competent and workmanlike manner in conformance with the warranties herein, and that such services will comply with the specifications contained in this purchase Order. Seller further warrants that such services will be properly performed in accordance with the applicable industry standards and practices then prevailing at the time of this Purchase Order, or, if higher, at the time such services are performed.
- NON-INFRINGEMENT. Seller represents and warrants and agrees that Seller shall not provide Buyer any goods or materials which violate the intellectual property or proprietary rights of any third party and that the manufacture, use, sale and provision of the goods by Seller and Buyer’s subsequent use of the goods will not infringe or violate the intellectual property or proprietary rights of any third party.
- MATERIAL FURNISHED BY OR PRODUCED FOR BUYER. Unless otherwise agreed in writing, all tools, equipment or material furnished to Seller by Buyer or specifically paid for by Buyer, and any replacement thereof or any materials affixed or attached thereto, shall be and remain the personal property of Buyer and Seller shall have no interest therein whatsoever. Such property and whenever practical each individual item thereof, shall be plainly marked or adequately identified by Seller as Buyer’s property, and shall be safely maintained at the Seller facility approved by Buyer separate and apart from Seller’s property and not commingled therewith. Seller shall not substitute any property for Buyer’s property and shall not use such property except in filling Buyer’s order. Such property while in Seller’s custody or control shall be held at Seller’s risk, shall be completely insured by Seller at Seller’s expense in an amount equal to the replacement cost with loss payable to Buyer, and shall be subject to return upon Buyer’s written request, in which event Seller shall prepare such property for shipment and shall deliver such property to Buyer in the same condition as originally received by Seller, reasonable wear and tear excepted.
- CONFIDENTIAL INFORMATION. Any data, designs, or other information belonging to or supplied by on behalf of Buyer to Seller and any copies thereof are deemed Buyer’s “Confidential Information” and shall be maintained as confidential and not be used or disclosed by Seller or its personnel except in the performance of this or other orders for Buyer. Upon Buyer’s request, such Confidential Information shall be returned to Buyer or destroyed. Seller shall only furnish such Confidential Information to Seller’s contractors or suppliers to the extent necessary for the provision of goods hereunder and provided that Supplier has appropriate agreements in place with its contractors and suppliers to require compliance with the terms of this Section. Supplier shall notify Buyer upon discovery of any unauthorized use or disclosure of Confidential Information and will cooperate with Buyer to help regain possession of the Confidential Information and mitigate further loss or harm.
- Buyer may at any time, by written notice, make changes in the specifications, designs, drawings, samples or other descriptions to which the ordered goods are to conform, and in the method of shipment and packaging or place of delivery. If any such change causes an increase or decrease in the cost of, or the time required for, the performance of any part of the work under this Purchase Order, an equitable adjustment shall be made in the price or delivery schedule or both, and this Purchase Order modified in writing accordingly. Any claim by Seller for an adjustment must be made in writing within thirty (30) days of the receipt of any such notice, provided however, that Buyer may, in its discretion, receive and act upon any such claims so made at any time prior to final payment under this Purchase Order. Nothing in this clause shall excuse the Seller from proceeding without delay to perform the Purchase Order as changed.
- TERMINATION. (A) Buyer reserves the right to terminate this Purchase Order or any part thereof, and to cancel all or any part of the undelivered portion of this Purchase Order if: (i) Seller does not make deliveries as provided, (ii) Seller breaches any of the terms hereof, or (iii) any proceeding is commenced by or against Seller in bankruptcy or insolvency or for appointment of a receiver or trustee or an assignment is made for the benefit of creditors. Buyer shall have no obligation to Seller in respect to the cancelled portion on this Purchase Order and Buyer’s liability shall be limited to payment for the delivered and accepted portion of this Purchase Order, at the rate specified on the face hereof. If, as a result of default in performance by Seller, this contract is terminated in whole or in part and it is necessary for Buyer to procure the materials or services elsewhere, Seller shall be liable for any charges which exceed the amount which would have been due Seller if Seller had satisfactorily completed this Purchase Order. (B) Buyer may terminate work under this Purchase Order, in whole or in part, at any time by notice to Seller in writing. Seller shall immediately stop work on this Purchase Order or the terminated portion thereof, and notify its subcontractors or suppliers to do likewise. Except where such termination is caused by default or delay of Seller, Seller’s sole remedy shall be reimbursement for its actual non-recoverable costs incurred up to and including the date of the termination, applicable to the termination and in accordance with recognized accounting. Termination claims shall be subject to inspection, audit and approval by Buyer. (C) Buyer reserves the right to suspend or cancel shipments of the materials covered by this order or terminate this order in its entirety, without any liability in the event of strikes, floods, fire, catastrophes, Acts of God, or other contingencies beyond the control of the Buyer, whether foreseen or unforeseen.
- INDEMNIFICATION. Seller agrees to defend, indemnify and hold harmless Buyer and its affiliates, subsidiaries, directors, officers, employees and agents from and against all loss, injury, liability, claim, damage or expense (including reasonable attorney fees and expenses), interest, court costs, and amounts paid in settlement of claims arising from, or alleged to arise from, directly or indirectly: (a) the performance or non-performance by Seller of its obligations under this Purchase Order including Seller’s refusal or failure to make delivery as specified, (b) Seller’s acts or omissions in connection with this Purchase Order, including but not limited to, negligence, gross negligence and strict liability, (c) any nonconforming or defective goods provided by Seller, (d) infringement of any intellectual property or proprietary right of a third party, including without limitation, any trade secret, trademark, patent or copyright in any jurisdiction, by any of the goods, (e) any breach of any of the representations, warranties, covenants or agreements of Seller, and (f) any violations by Seller of any Applicable Laws. The indemnification obligations of Seller shall survive acceptance of the goods and payment therefore by the Buyer.
- Seller shall secure and maintain in effect, at all times during the performance of work, insurance coverage with limits not less than the following: worker’s compensation insurance in accordance with all applicable federal, state and local statutory requirements; automobile liability with a combined single limit of $1,000,000 for bodily injury and property damage liability (coverage will apply to non-owned and hired automobiles); product liability of $2,000,000 per occurrence covering all goods sold hereunder; employer’s liability insurance with limits of $1,000,000 by accident each accident, $1,000,000 by disease each employee, $1,000,000 by disease policy limit; errors and omissions liability insurance (including technology errors and omissions, network and information security liability and communications and media liability) with a limit of $5,000,000 per occurrence and $5,000,000 aggregate; commercial general liability insurance on an occurrence basis with minimum combined single limit coverage of $1,000,000 per occurrence and $2,000,000 general aggregate for bodily injury and property damage liability; and excess or umbrella insurance with limits of $5,000,000 per occurrence in excess of the limits specified above for employer’s liability and general commercial liability insurance. All policies shall be with carriers with an A.M. Best rating of A-X or better, unless otherwise agreed by Buyer. If required by Buyer, Seller shall deliver to Buyer no later than ten (10) days after execution of the Purchase Order, a completed Certificate of Insurance, naming Buyer, and its directors, officers, agents, and employees as Additional Insureds on a primary noncontributory basis except for errors and omissions liability. Such insurance shall be endorsed to show that the insurer waives rights of subrogation in favor of the Buyer, its directors, officers, agents and employees. The insurance coverages to be maintained, are not intended to and shall not in any manner limit or qualify the liabilities and obligations of Seller. Failure to obtain the aforementioned insurance coverages shall be a material breach of this Purchase Order for which Buyer may exercise any rights or remedies it may have under the law, including the right to withhold moneys due and owing the Seller.
- ASSIGNMENT. With the exception of procurement of materials and components in the ordinary course of business, Seller shall not assign or delegate to another the performance required by the acceptance of this Purchase Order or assign this Purchase Order without written consent of Buyer.
- GOVERNING LAW/VENUE/ATTORNEYS FEES/LIMITATIONS. This Purchase Order and the resulting agreements shall be governed by and construed in accordance with the laws of the state of Minnesota, without giving effect to its conflict of laws principles. The parties agree that any controversy arising under this Purchase Order shall be determined by the state and federal courts located in the state of Minnesota, and Seller hereby irrevocably submits and consents to the jurisdiction of the courts of said state and waives any argument that venue in any such courts is inconvenient. If Buyer prevails in any such action, Buyer will be entitled to an award of its costs, fees and expenses including attorneys’ fees incurred in the action. Any action or claims by Seller under this Purchase Order shall be commenced within 12 months after the occurrence giving rise to the action or claim.
- REMEDIES. Rights and remedies of Buyer specified in this Purchase Order are cumulative and in addition to any other rights or remedies provided by law or in equity. Without limiting the foregoing, upon notice to Seller, Buyer may deduct damages for breach of any provision of this Purchase Order from the amount shown due Seller on any invoice, whether or not the deduction and invoice are related to the same sale or series of sales.
- WAIVER. Failure of either party in any one or more instances to insist upon performance of any of the terms and conditions of this Purchase Order, or to exercise any right or privilege, shall not be construed as a waiver of any such terms, conditions, rights or privileges thereafter, and the same shall continue and remain in force and effect as if no waiver had occurred.
- SEVERABILITY. If any provision contained or referred to in this Purchase Order is determined to be legally invalid or unenforceable, that provision will be ineffective to the extent of the invalidity or unenforceability without affecting the remaining provisions of the terms, which will continue to be valid and enforceable to the fullest extent permitted by law.