GENERAL PURCHASE ORDER TERMS & CONDITIONS
As used throughout this Order, the following definitions apply unless otherwise specifically stated:
(a) “Buyer” means one of the Harmar business sites
(b) “Supplier” (or “subcontractor”) means the legal entity that is the contracting party with Buyer for this Purchase Order
(c) “Order,” or “subcontract” or “Purchase Order” refer to this contractual instrument
(d) “Ordered Item” means any good or other item or service ordered by Buyer pursuant to this Order. Depending on the context, Ordered Items or parts thereof are sometimes referred to as “goods” or “property” or by other appropriate terms.
(e) “Written Acceptance” means documented acceptance by either Buyer or Supplier inclusive of all common forms of communication via FAX, email or hard copy.
Any of the following acts (whichever occurs first) shall constitute valid acceptance of this Order: (1) receipt by Buyer of Supplier’s written acceptance, including all electronic transmittal mediums, (2) Supplier’s commencement of work on any Ordered Item or part thereof, or (3) shipment of any Ordered Item to Buyer. Any acceptance of this Order is limited to acceptance upon the express terms of the Order.
Buyer hereby objects to and rejects any proposal for additional or different terms or any attempt by Supplier to vary in any way from these terms as stated herein. Any such proposal or attempt shall be deemed a material alteration of this Order. This Order shall be deemed accepted by Supplier without any additional or different terms (except in the case of proposals to change the description, quantity, price or delivery schedule of the Ordered Items (“Basic Changes”)). In the case of proposals for Basic Changes, there shall be deemed to be no agreement between Buyer and Supplier unless accepted by the both parties in writing.
If this Order is deemed an acceptance of a prior offer by Supplier, (1) such acceptance is limited to the express terms contained in the Order; (2) any additional or different terms in such prior offer or any other attempt by Supplier that varies in any way from the terms of this Purchase Order are hereby excluded and (3) such prior offer may be deemed accepted, but only upon the terms contained in this Order.
3. COMPLETE AGREEMENT.
When this Order is signed by a Buyer or Buyer’s Authorized Purchasing Representative, it shall constitute a complete and exclusive statement of the terms of the agreement between Supplier and Buyer with respect to the subject matter hereof. Authorized signatures include the use of Fax, email and electronically generated signatures.
No modification of this Order (including any additional or different terms in Supplier’s acceptance hereof) shall be binding on Buyer unless Buyer agrees to such modification in writing and signed by Buyer’s Purchasing Representative.
5. PRICE AND QUANTITY.
If Supplier’s actual cost or regular market price of any Ordered Item shall be higher than the price stated in this Order for such Item on the date of shipment thereof, Supplier agrees that the Purchase Order price shall prevail. Any trade custom, other customer and/or any practice to the contrary notwithstanding, Buyer shall not be required to receive or pay for any quantity of Ordered Items in excess of the quantity specified on the Order unless pre-approved by the Buyer prior to shipment of the Ordered item.
6. PACKING, MARKING AND SHIPPING.
Supplier shall pack, mark and ship all goods and supplies in accordance with the requirements of this Order, all applicable transportation regulations and good commercial practice for protection and shipment of the Ordered Items. Supplier shall secure the transportation service and rates most advantageous to the Buyer as long as procurement thereof shall be consistent with Supplier’s foregoing obligations. No separate or additional charge shall be payable by Buyer for containers, crating, boxing, bundling, dunnage, drayage or storage unless specifically stated in this Order. Any expense, damage or liability incurred by Buyer as a result of improper preservation, packaging, packing, marking or method of shipment shall be reimbursed by Supplier upon demand. A packing list showing this Order number, Line number, Item number and Quantity shall be included with each shipment, and each container shall be marked to show the Order number. Supplier shall mail the original bill of lading to Buyer’s Purchasing Department unless otherwise instructed. Any transportation charges paid by Supplier for which Supplier is entitled to reimbursement shall be shown on Supplier’s invoice as a separate line item and the receipted freight bill shall be attached thereto.
In the case of a drop shipment, Supplier shall send, email or Fax Buyer at time of shipment two copies of the above-described packing list.
Supplier shall not ship in advance of schedule. If Supplier ships product sufficiently ahead of schedule such that ordered items are received by the Buyer in excess of five (5) work days prior to the scheduled dock date, Buyer reserves the right to either 1) return the product to the Supplier at the Supplier’s expense to be debited from their account or 2), extend the payments terms for the received items by the number of days received early. Except as otherwise specified or approved by Buyer in writing, Supplier shall ship exact quantities ordered.
Deliveries shall be completed strictly in accordance with the quantities and schedules specified in the Order. If, at any time, it appears Supplier may not meet such delivery schedule, Supplier shall immediately notify Buyer of the estimated duration of any delay and the reasons for the delay. In such event, Supplier shall, upon request by Buyer, mitigate such delay (or such portion thereof as Buyer requires) by appropriate methods, including (without limitation) incurring expenditures for overtime and expedited shipment by air or other means of expedited transport for all or a portion of such delivery quantity as requested by the Buyer. Any costs incurred by Supplier to avoid such delay shall be borne solely by Supplier. The foregoing requirements are in addition to all of Buyer’s other rights and remedies as may be provided by applicable law or this Order. Delivery according to the schedule provided herein is an important condition of the business. Therefore, the delivery date(s) will not be advanced or delayed without agreement between the parties.
9. INSPECTION, REJECTION AND REMEDY OF DEFECTS
Buyer shall have the right to inspect and test any item furnished pursuant to this Order. Payment for material under this Order prior to inspection shall not constitute acceptance of the products. If Buyer rejects any goods, Buyer shall then be relieved any obligation to pay for the goods. In the event Buyer rejects any goods after receipt and the parts are determined not to be compliant to the part specification, Buyer shall be entitled to require the Supplier to provide replacement goods that fully comply with the terms of this Order. Without limiting the foregoing, Buyer may elect to accept defective goods due to schedule constraints, subject to an equitable reduction in price, or return the goods to the Supplier to have them reworked to a state in which the goods do fully comply with the terms of this Order. All goods rejected by the Buyer and reworked to print by the Supplier are to be clearly identified as ‘Reworked Items’ being resubmitted to Buyer and segregated from other new items being delivered in the same shipment from the Supplier. In all cases, freight or transportation costs for the expedited return and/or replacement of the defective goods will be borne fully by the Supplier.
10. INVOICES AND STATEMENTS.
Payment of Seller’s invoice is subject to adjustment for over-shipment, shortage, early delivery in excess of five (5) work days prior to the delivery date stated on the Order and full or partial rejection of the delivered quantity. Individual invoices must be issued for each shipment applying to the Order unless otherwise negotiated or stated in the order. Such invoices must state (a) the P.O. number of the Order, (b) the Line number of the PO item being shipped, (c) the quantity of each Ordered Item shipped corresponding to that Line number, (d) the Item number and description of each Ordered Item shipped and (d) price of each ordered item shipped. Any applicable sales tax, duty, excise tax, use tax or other similar tax or charge, for which Buyer has not furnished an exemption certificate must be itemized separately on each invoice. All freight or transportation charges the Supplier has paid for which they are entitled to repayment must also be listed as a separate line item on the invoice.
Unless subject to an adjustment as defined above, the effectivity of the negotiated payment terms for all items contained in this Purchase Order is the date of Seller’s invoice unless the terms are other than FOB Shipping Point. All negotiated discount periods begin on the date of Buyer’s actual receipt of the invoice. If the Supplier shipped sufficiently early so that the Ordered items are delivered more than five (5) days prior to the date defined on the Order and such early shipment was not preapproved by the Buyer, the effectivity of the Supplier’s payment terms will be delayed an equal number of days corresponding to the early shipment.
11. LOSS OR DAMAGE CAUSED BY SUPPLIER.
In the event Supplier, its employees, agents and/or subcontractors enter premises occupied by or under the control of Buyer in the performance of this Order, Supplier shall fully compensate, indemnify and hold harmless Buyer, its officers, employees, agents and contractors, for or from damage or injury of any sort to any person or property, any claim, charge, liability, obligation, penalty, damages, costs or expenses (including reasonable attorneys’ fees incurred in connection therewith) arising out of or in connection with any act or omission of Supplier, its employees, agents and/or subcontractors on or about such premises. Without in any way limiting the foregoing undertakings, Supplier (and its subcontractors at all tiers) shall maintain with a reputable insurance company or companies liability insurance in reasonable limits covering the obligations set forth above and shall maintain proper Workmen’s Compensation insurance covering all employees, agents and contractors performing this Order.
12. RESPONSIBILITY FOR BUYER FURNISHED PROPERTY.
All property, including material, tooling and equipment that is furnished to Supplier by Buyer for performance of this Order or for which Buyer has specifically agreed to pay Supplier, shall be and remain the property of Buyer and title to such property shall not be affected by incorporation or attachment to any other property. All property furnished or consigned to Supplier by Buyer under this Order shall be kept and maintained in accordance with reasonable commercially acceptable standards. Such property shall be used by Supplier only in the performance of this Order or as may otherwise be authorized by Buyer. When instructed by Buyer, Supplier shall deliver the property covered by this clause to Buyer, F.O.B. carrier, Supplier’s plant at the completion or termination of this Order, or shall make such other disposition of property as the Buyer may direct. Supplier shall bear the risk of loss or destruction of and damage to property covered by this clause until delivered or returned to Buyer. Supplier shall deliver or return Buyer property in the same condition as when manufactured, acquired, or received, except for reasonable wear and tear or for utilization thereof in accordance with the terms of this Order.
13. CONFIDENTIALITY, PATENT AND PROPRIETARY DATA PROTECTION.
All drawings, specifications, prints or other data furnished or purchased by the Buyer (Data) shall remain the property of the Buyer and shall be returned without additional cost, upon demand of the Buyer. Such Data shall be held secret and confidential by the Supplier and shall not be disclosed, in whole or in part, to any third party without the prior written consent of the Buyer; shall not be duplicated, used or disclosed, in whole or in part, for any purpose other than the performance of this Purchase Order; and will be disclosed only to those employees of Supplier who are directly engaged in the performance of this Purchase Order and who have been advised of the restrictions upon duplication, use and disclosure contained herein.
Supplier shall implement and maintain storage and handling procedures sufficient to protect the confidentiality of the Data furnished by the Buyer. In the reproduction of any of the controlled documents, Supplier shall duplicate on and/or in such reproductions all of the restrictive legends, copyright notices or other intellectual and industrial property rights markings and legends as appear in the original versions provided by the Buyer.
Any breach by Supplier of any of the foregoing shall be deemed to be a material breach of this Purchase Order on the part of the Supplier. In addition to any remedies that the Buyer may then have, the Buyer shall have the right to cancel this and any other unfilled Purchase Order that it has placed with the Supplier without liability. The provisions of this paragraph shall survive the completion, expiration or termination of this Purchase Order.
14. NONEXCLUSIVE LICENSE
Supplier acknowledges that, to the extent indicated by notices, legends or other markings, the drawings, specifications, prints or other data furnished by the Buyer under this Purchase Order constitute or contain trade secrets that are the property of the Buyer. Subject to the limitations and restrictions contained in this Purchase Order, Buyer grants to Supplier a nonexclusive license to use said trade secrets for the limited purpose of supplying the articles or services required by this Purchase Order. To the extent that said trade secrets describe the articles or services required by this Purchase Order, Supplier agrees it will not supply identical articles or services that have been extracted from Buyer’s data, at the direction of or for the use or benefit of, any person other than the Buyer or persons designated by the Buyer.
Federal, State or local taxes of any nature shall be billed separately in Supplier’s invoices.
16. PUBLIC RELEASES.
Supplier shall not, without first obtaining the written consent of Buyer, in any manner advertise or publish the fact that Supplier has furnished or contracted to furnish Buyer with the Ordered Items, or disclose any information contained in or connected with this Order (including, without limitation, the terms and conditions hereof) to any person or entity other than Supplier and Supplier’s agents and subcontractors, except as expressly allowed herein, and except as may be required to perform this Order.
17. RISK OF LOSS AND RESPONSIBILITY FOR GOODS.
(a) When this Order specifies that the designated delivery point is F.O.B. carrier, Supplier’s plant, risk of loss (used in this clause to include damage, destruction, theft or other loss of the goods) shall pass to Buyer upon delivery of the items to the common carrier by Supplier properly addressed, labeled and consigned, and Buyer shall be responsible for asserting any claims against the carrier and for maintaining any required insurance against loss in transit.
(b) When this Order specifies that the designated delivery point is F.O.B. destination, risk of loss shall remain with Supplier until delivery of the items to Buyer, and Supplier shall be responsible for asserting any claims against the carrier and for maintaining any required insurance against loss in transit.
(c) Supplier shall be responsible for the goods covered by this Order until they are delivered at the designated delivery point, regardless of the point of inspection. After delivery to Buyer at the designated delivery point and prior to acceptance or rejection by Buyer, Buyer shall be responsible for risk of loss. Supplier shall bear all risks of loss as to properly rejected goods after timely written notice of rejection has been given, except that Buyer shall be responsible for risk of loss as to the rejected supplies of such loss results from the negligence of officers, agents or employees of Buyer.
(a) Any dispute arising under this Order that is not settled by negotiated agreement between the Buyer and Supplier within sixty (60) days of written notification to the other party of the issue, or for which either party refuses to engage in reasonable negotiation with the intent to reach an agreement, may be settled by appropriate legal proceedings.
(b) If any legal appeal, suit or claim is prosecuted by Buyer under this clause, Supplier shall be permitted at Supplier’s expense, to participate fully in such prosecution for the purpose of protecting Supplier’s interest.
(c) During pendency of any dispute, decision, appeal, suit or claim covered by this clause, Supplier shall continue to proceed diligently with performance of all open Orders. All costs and expenses incurred by Supplier and Buyer in prosecuting any appeal, suit or claim initiated by Buyer solely at Supplier’s request shall be paid by Supplier; otherwise each party shall bear its allocable share of the expense. The rights and obligations of Buyer and Seller under this clause shall survive completion of, and final payment under, this Order.
Seller shall not, without first obtaining Buyer’s written approval, subcontract any portion of this Order provided, however, that this section shall not apply to Supplier’s purchase of reasonable commercial supplies of standard raw materials. Supplier shall select subcontractors (including subcontractors supplying such raw materials) on a competitive basis to the maximum practical extent consistent with the objectives and requirements of this Order.
20. WAIVER AND MODIFICATION.
The failure of or delay by Buyer in any one or more instances to insist on delivery of any Ordered Item by the date specified herein or on full performance of any of Supplier’s obligations under this Order shall not be construed to be a waiver by Buyer of any other delivery requirement or full performance of any other provision herein. Acceptance by Buyer of any performance hereunder by Supplier shall not constitute a waiver of any then-existing or future default or any remedy therefor. In event of termination or change by Buyer, any portion of Supplier’s claim (if any) based on manufacture or procurement of materials shall not include any amounts for manufacture or procurement in advance of Supplier’s normal manufacture or procurement flow unless Supplier has previously obtained Buyer’s written consent for such accelerated manufacture or procurement flow.
This Order shall be governed in all respects by the laws of the State of Florida. Venue for any dispute arising out of this Order, the subject matter thereof or related directly or indirectly to this Order shall be in the Superior Court of Florida.
All Ordered Items to be delivered herein and all property to be returned to Buyer shall be free and clear of any and all claims, liens and encumbrances whatsoever. Supplier shall immediately discharge any claim, lien or encumbrance of any kind, which at any time exists or arises in connection with any Ordered Items.
Supplier warrants that all Ordered Items delivered under this Order shall conform to the requirements of this Order (including, without limitation, all technical descriptions, performance criteria, specifications and drawings), shall be free from defects in material and workmanship and shall, to the extent not manufactured pursuant to detailed designs furnished by the Buyer, be free from defects in design and fit for the intended purposes as Buyer has relied upon Supplier’s ability, expertise
and awareness of such intended purpose. Buyer’s approval of designs furnished by Supplier or any approval of Supplier’s “First Article” shall not relieve Supplier of its obligations under this Warranty. All of Supplier’s warranties set forth in this Order shall be enforceable by Buyer, Buyer’s customers and any subsequent owner or operator of the Ordered Items. Any inspection or acceptance of such Items by Buyer shall not be deemed to alter, waiver, extinguish or otherwise affect the obligations of Supplier or the rights of Buyer, its customers or subsequent owners or operators under these warranties.
Unless otherwise negotiated and documented on this Order, all such warranties shall run from date of acceptance of goods by Buyer to one year after date of delivery to Buyer’s customer of Buyer’s end product containing Supplier’s Ordered Item. If Supplier’s Ordered Items purchased herein does not consist of goods to be made a part of an end product sold by Buyer to a customer, such warrantee shall run for a period of one year from date of acceptance by Buyer of Supplier’s Ordered Item.
The Buyer may, at any time by written notice to Supplier, change this Order, including (without limitation) changes in method of shipment or packing, and place of delivery. Supplier shall proceed immediately to perform this Order as changed. If any such change causes an increase or decrease in the cost of, or the time required for, performance of this Order, an equitable adjustment shall be made in the price or delivery schedule, or both, and the Order shall be subsequently modified in writing. Failure to modify in writing by either party shall not be considered a waiver of the requirement of such writing and no extra charge shall be made by the Supplier for any change unless pursuant to modification in writing. Any claim for adjustment under this clause must be asserted within 30 days from the date of receipt by the Supplier of the notification of change. Nothing in this clause shall excuse the Supplier from proceeding with the contract as changed. Buyer will not be liable for delay in furnishing any Ordered Items to be provided by it, when such delay is caused by its failure to receive such Items from its source of supply or by any causes beyond the control of Buyer. When property or material is made obsolete, excess or unusable (in whole or in part) in connection with the Ordered Items as a result of changes hereto, then the Buyer shall have the right, but not the obligation, to prescribe within a reasonable time the manner of disposition thereof. Any claim by Supplier related to changes to this Order not made in compliance with this section shall be deemed waived. Except for changes identified as such in writing and signed by the Buyer, the Supplier shall notify the Buyer within 30 days of any conduct or circumstances whatsoever that the Supplier considers would constitute, or would require, a change to the order. Notwithstanding any provision hereof, no change or proposed change to this Order shall be effective after acceptance of this Order unless such change is in writing and signed by an authorized Buyer’s Purchasing Representative as provided above.
25. COMPLIANCE WITH LAWS.
Supplier warrants that, in the performance of this Order, it will comply with all applicable Federal, State and local laws applicable to its regional of operation. Supplier also warrants that it is and will continue during the period of performance of the Order to be in full compliance with all provisions of Anti-Kickback, Non-Discrimination and Labor Laws applicable to the country and region of its operation.
26. PARTIAL INVALIDITY.
If any provision of this Order is or becomes void or unenforceable by force or operation of law, the other provisions shall remain valid and enforceable.
27. PATENT PROTECTION.
To the extent the Ordered Items are not manufactured pursuant to design originated by Buyer, Supplier shall indemnify and hold harmless Buyer and/or its agents or customers harmless from any loss, damage, liability, damages, or expenses, including (without limitation) attorneys’ fees and costs incurred in connection therewith, which may be incurred on account of any actual or alleged infringement of United States or other patent rights with respect to such items.
28. RIGHT OF FORCE MAJEURE
Buyer and Supplier each reserve the right to delay delivery and/or acceptance of ordered items, or postpone performance of its obligations hereunder to the extent occasioned by events beyond its reasonable control. Such events include, but are not limited to; war, strikes, fires, natural disasters, a public enemy, extended labor or transportation difficulties, or other such causes.
The performance of work under this Order may be terminated in whole or in part by the Buyer under any of the following circumstances:
(i) If Supplier fails to deliver the Ordered Items required by this Purchase Order or fails to respond in writing with cause of delay and a schedule recovery plan within ten days after Supplier’s receipt of notice from Buyer of Supplier’s failure to provide such delivery within the time(s) specified in this Order,
(ii) If Supplier fails to provide full performance of any other provision of this Purchase Order in strict compliance with the terms hereof within ten days of Supplier’s receipt of notice from Buyer specifying such failure,
(iii) If Supplier shall fail to make progress in its operations so as to endanger performance of this Order in strict compliance with the terms hereof, and shall subsequently fail to correct such lack of progress within ten days of Supplier’s receipt of notice from Buyer concerning such failure.
In addition to any other rights provided in this Section, if the conditions for termination described in clauses (i), (ii) or (iii) of this Section shall be satisfied, Buyer may require Supplier to transfer title and deliver to Buyer, in the manner and to the extent directed by Buyer (i) any completed products, and (ii) such partially completed products and materials, parts, tools, dies, jigs, fixtures, plans, drawings, and information or similar items (hereinafter called “Manufacturing Material”), as the Supplier has produced or acquired for the performance of this Order; and the Supplier shall, upon direction of Buyer, protect and preserve property in possession of the Supplier in which Buyer has an interest. Payment for completed products delivered to and accepted by Buyer shall be at the Order price. Payment for Manufacturing Materials delivered to and accepted by Buyer and for the protection and preservation of property shall be at a price determined in a mutually agreeable manner.
In the event of any termination of this Order by Buyer due to Supplier’s failure to perform the requirements of the Order, Buyer shall have the right to procure such terms from alternate sources and in such manner as it may deem appropriate and to recover from Supplier the excess of the cost for such replacement Items over the price agreed to in the Order. The rights of Buyer provided in this clause shall be in addition to any other rights provided by law or this Order.
Without limiting any provision hereof and in addition thereto, Buyer may, by written notice to Supplier, cancel the whole or any part of this Order in the event of suspension of Supplier’s business, insolvency of Supplier, institution of bankruptcy,
reorganization, arrangement or liquidation proceedings by or against Supplier, appointment of a trustee or receiver for Supplier’s property or business, any assignment by Supplier for the benefit of creditors or Buyer’s good faith belief that Supplier may be incapable of performing its obligations hereunder in strict compliance with the provisions hereof. These circumstances described in the preceding sentence of this Section shall be deemed Defaults, which shall entitle Buyer to exercise any of its remedies described above.
30. ORDER OF PRECEDENCE.
To the extent of any inconsistency between information contained within the face of this Purchase Order, these General Terms and Conditions (“General Terms”), any special conditions, or other documents referenced herein or attached hereto (“Other Documents”), the following shall prevail:
1. The Purchase Order document, including all information specifically contained or referenced therein as signed or initialed by Buyer’s Purchasing Representative shall prevail over General Terms and Other Documents.
2. General Terms shall prevail over Other Documents.
To the maximum extent allowed under applicable law, Supplier may not assign any of its rights or delegate any of its duties under this Order without the prior written consent of Buyer. In the event of an assignment not prohibited hereunder, (a) Buyer shall be furnished with two signed copies of any assignment which is not prohibited by this clause, and (b) payment to an assignee in accordance with any such assignment shall be subject to setoff or recoupment for any present or future claim or claims by Buyer against Supplier or such assignee.
32. INSPECTION / AUDIT AT SUPPLIER’S FACILITIES.
Upon providing reasonable advance notice, any authorized representative of the Buyer may perform inspections and/or audit of Supplier or Suppliers’s subcontractors facilities and processes engaged in the performance of this Order and may inspect and test the goods to be delivered under this Order to the extent practicable at all times and places, including (without limitation) during the period of manufacture and prior to acceptance. If any such audit, inspection or test is made by the Buyer, Supplier shall provide all reasonable facilities and assistance for the safety and convenience of the personnel involved.
33. ADVANCE NOTIFICATION OF CHANGES.
HARMAR must be notified in advance of any proposed changes to the Supplier’s manufacturing processes, critical process sources, equipment or facilities that may impact the quality, acceptability or on time delivery of the product(s) provided to HARMAR. This includes any proposed relocations of manufacturing or assembly facilities that include HARMAR products. Any such changes have the potential to negatively impact the flow of acceptable product to HARMAR or HARMAR’s customers and must be planned and coordinated between the two parties of this agreement prior to implementation. Failure to do so may result in ‘termination with cause’ of this agreement.