SPRAYING SYSTEMS CO. TERMS AND CONDITIONS OF PURCHASE
BY ACCEPTING THE PURCHASE ORDER, AND/OR PERFORMING HEREUNDER SUPPLIER AGREES TO COMPLY FULLY WITH THE TERMS AND CONDITIONS OF PURCHASE SET FORTH IN THIS DOCUMENT. ACCEPTANCE OF THE PURCHASE ORDER IS EXPRESSLY LIMITED TO THE TERMS AND CONDITIONS OF THE PURCHASE ORDER AND NONE OF SUPPLIER'S TERMS AND CONDITIONS WILL APPLY IN ACKNOWLEDGING THE PURCHASE ORDER OR IN THE ACCEPTANCE OF THE PURCHASE ORDER. ACCEPTANCE BY SPRAYING SYSTEMS CO., OF THE ITEMS, SERVICES OR WORK DELIVERED UNDER THE PURCHASE ORDER WILL NOT CONSTITUTE AGREEMENT TO SUPPLIER'S TERMS OR CONDITIONS. SUPPLIER MAY NOT SHIP UNDER RESERVATION.
Supplier agrees to provide the Items and/or perform the Services, described in the accompanying Purchase Order, in accordance with these Terms and Conditions. Upon acceptance of the Purchase Order, shipment of Items or commencement of Services, Supplier will be bound by the provisions of these Terms and Conditions, including all provisions set forth on the face of the Purchase Order, whether Supplier acknowledges or otherwise signs these Terms and Conditions or the Purchase Order, unless Supplier objects to such terms in writing prior to shipping Items or commencing Services.
These Terms and Conditions will be controlling over any additional, inconsistent or conflicting terms of any acknowledgment, invoice or other communication of Supplier, even if accepted in writing by both parties; provided, however, that If a supply agreement, or confidentiality agreement, or general tooling maintenance agreement exists between Supplier and Spraying Systems Co. with respect to the Items or Services covered by these Terms and Conditions, the terms of such agreements will prevail over any inconsistent terms herein. To the extent that these Terms and Conditions might be treated as an acceptance of Supplier's prior offer, such acceptance is expressly made on condition of assent by Supplier to these Terms and Conditions and shipment of the Items or commencement of Services by Supplier.
Spraying Systems Co. hereby reserves the right to reschedule any delivery at any time prior to shipment of the Items. Spraying Systems Co. hereby reserves the right to cancel any Purchase Order prior to commencement of any Services. Spraying Systems Co. will not be subject to any charges or other fees as a result of such reschedule or cancellation. These Terms and Conditions may not be added to, modified, superseded or otherwise altered, except by a writing signed by an authorized Spraying Systems Co. representative.
A. "Custom Items" means those Items manufactured to Spraying Systems Co.'s specifications solely for Spraying Systems Co. and not offered or sold to any other customer.
B. "Items" means goods that Supplier is to provide to Spraying Systems Co. as set forth in the Purchase Order.
C. "Purchase Order" means the purchase order accompanying these Terms and Conditions and delivered to Supplier by Spraying Systems Co. and these Terms and Conditions.
D. "Release" means Spraying Systems Co.'s authorization to ship in accordance with the Purchase Order, and authorizing Supplier to ship a definite quantity of Items to a specified schedule. The Release is contained in the Purchase Order.
E. The Purchase Order "Services" means services that Supplier is to provide to Spraying Systems Co. as set forth in the Purchase Order.
F. "Standard Items" means those Items that are manufactured to Supplier's specifications for offer and sale to all customers.
3. INVOICING AND PAYMENT.
Prompt payment discounts will be computed from the latest of: (i) the scheduled delivery; (ii) the date of actual delivery; or (iii) the date a property filled out original invoice, or quality certification, or packing list is received. Payment is made when Spraying Systems Co.'s check is mailed or EDI funds transfer initiated. Spraying Systems Co. will make payment within 45 days of receipt of the proper original invoice or Spraying Systems Co.'s receipt of Items, whichever is later. Original invoices and packing lists will be submitted and will include: purchase agreement number (if applicable), Purchase Order number, line item number, Release number, part number, complete bill to address, description of Items, quantities, unit price, and extended totals as well as suppliers name. Invoices shall be issued using only one Spraying Systems Co. purchase order number per invoice. All costs forwarded to Spraying Systems Co. for reimbursement of expenses agreed under the terms of the Purchase Order will be net of any reclaimable Value Added Taxes ("VAT") incurred on such expenses. Spraying Systems Co.'s payment will not constitute acceptance. Supplier agrees to invoice Spraying Systems Co. no later than 180 days after shipment of Items. Spraying Systems Co. will not be obligated to make payment against any invoices submitted after such period. COD shipments are expressly prohibited. The supplier shall not place shipments for this PO on credit hold without submitting written notice to Spraying Systems Co. account payable and the buyer 48 hours in advance of the hold.
A. Spraying Systems Co. may terminate the Purchase Order or Release, or any part hereof, at any time for its sole convenience by giving written notice of termination to Supplier. Upon Supplier's receipt of such notice, Supplier will, unless otherwise specified in such notice, immediately stop all work hereunder and give prompt written notice to and cause all of its suppliers or subcontractors to cease all related work.
B. There will be no charges for termination of orders for Standard Items.
C. Any claim for termination charges for Custom Items, along with a summary of all mitigation efforts, must be submitted to Spraying Systems Co. in writing within 30 days after receipt of Spraying Systems Co.'s termination notice.
D. Supplier's claim for termination charges for Custom Items may include the net cost of custom work in process, scheduled to be delivered within 15 days, and which must be scrapped due to the termination. Supplier will be required to mitigate losses and, wherever possible, place such custom work in process in its inventory and sell it to other customers. In no event will such claim for termination charges for Custom Items exceed the total price for the Custom Items terminated. Upon payment of Supplier's claim, Spraying Systems Co. will be entitled to all work and materials paid for.
E. Before assuming any payment obligation for Custom Items terminated, Spraying Systems Co. may inspect Supplier's work in process and audit all relevant documents prior to paying Supplier's invoice.
Neither party will be responsible for its failure to perform due to causes beyond its reasonable control such as acts of God, fire, theft, war, terrorism, riot, embargos or acts of civil or military authorities. If delivery is to be delayed by such contingencies, Supplier will immediately notify Spraying Systems Co. in writing and Spraying Systems Co. may either (i) extend time of performance, or (ii) terminate the uncompleted portion of the Purchase Order at no cost to Spraying Systems Co.
6. DELIVERY, RELEASES, AND SCHEDULING.
A. Supplier will notify Spraying Systems Co. in writing within two business days of receipt of the Purchase Order if Supplier is unable to make any scheduled delivery and state the reasons therefore. The absence of such notice constitutes acceptance of the Purchase Order and commitment to the Release terms.
B. Supplier will deliver Items per the Release schedule and Spraying Systems Co. may return non-conforming shipments at Supplier's risk and expense. Spraying Systems Co. may reschedule any Release in whole or in part prior to the Release date at no additional charge. Spraying Systems Co. may place any portion of a Release on hold by notice that will take effect immediately upon receipt. Releases placed on hold will be rescheduled or terminated in accordance with Paragraph 4 within a reasonable time. If the shipments are late, supplier shall ship using an express service at no charge to Spraying Systems Co.
7. ACCEPTANCE AND WARRANTY.
A. Spraying Systems Co. may inspect and test all Items at reasonable times before, during, and after manufacture. All Items will be received subject to Spraying Systems Co.'s inspection, testing, approval, and acceptance at premises designated by Spraying Systems Co. notwithstanding any inspection or testing at Supplier's premises or any prior payment for such Items. Items rejected by Spraying Systems Co. as not conforming to these Terms and Conditions, the Purchase Order, or Item specifications, whether provided by Spraying Systems Co. or furnished with the Item, may be returned to Supplier at Supplier's risk and expense and, at Spraying Systems Co.'s request, will immediately be repaired or replaced.
B. Supplier represents and warrants that all Items furnished hereunder will be new, of the grade and quality specified, free from defects in workmanship and material, conform to all samples, drawings, descriptions, and specifications furnished or published by Supplier, and to any other agreed-to specifications and quality provisions, and will be free of liens and encumbrances.
C. Supplier represents and warrants that all Services provided will be performed in workmanlike and competent manner in accordance with the highest professional standards in Supplier's trade or industry, and will meet the description specifications provided and/or published by Supplier, and those provided by Spraying Systems Co.
D. If Supplier breaches any of the foregoing representations or warranties, or Items or Services are otherwise defective or non-conforming, during a period of three years after Spraying Systems Co.'s acceptance of such Items or Services, Supplier will, at Spraying Systems Co.'s option, promptly repair, replace, or refund the amount paid for such Items or Services. Supplier will bear the cost of shipping and risk of loss of all defective or non-conforming Items while in transit.
E. Supplier warrants that supplier has or will acquire and maintain at the supplier's expense the necessary inspection, gauge and test equipment or services to verify conformity to Spraying Systems Co. requirements and will provide test reports to certify compliance upon request.
8. PRODUCT SPECIFICATIONS AND IDENTIFICATION.
Supplier will not modify the specifications for Items without Spraying Systems Co.'s written consent. Supplier will notify Spraying Systems Co. at least 120 days in advance of any changes in the manufacturing process. Supplier will cooperate with Spraying Systems Co. to provide configuration control and traceability systems for Items supplied hereunder.
9. PACKAGING AND SHIPMENT.
All Items will be prepared for shipment in a manner which: (i) follow good commercial practice; (ii) is acceptable to common carriers for shipment at the lowest rate; and (iii) is adequate to ensure safe arrival. Supplier will mark all containers with necessary lifting, handling and shipping information, purchase order number, date of shipment, and the names of Spraying Systems Co. and Supplier. Spraying Systems Co. will notify Supplier of the method of shipment and expected delivery date. If no instructions are given, Supplier will select the most cost effective carrier, given the time constraints known to Supplier. Supplier will ship only the quantity of Items specified in the Release. Spraying Systems Co. may return at Supplier's expense any Items in excess of the quantity stated in the Release. As directed by Spraying Systems Co., freight will be managed by Supplier or Spraying Systems Co. in accordance with the following terms and conditions: (i) For Supplier Managed Freight: all Items will be shipped Delivered Duty Paid, Spraying Systems Co.'s Dock (DDP: Spraying Systems Co.'s Dock, Incoterms 2000) for non free trade zone factory sites or Delivered Duty Unpaid, Spraying Systems Co.'s Dock (DDU: Spraying Systems Co.'s Dock, Incoterms 2000) for non-free trade zone factory sites. Title and risk of loss will pass to Spraying Systems Co. upon delivery of Items to Spraying Systems Co.'s Dock. (ii) For Spraying Systems Co. Managed Freight: title and risk of loss will pass to Spraying Systems Co. upon delivery of Items to Spraying Systems Co.'s agent at the Supplier Dock.
10. OWNERSHIP, BAILMENT RESPONSIBILITIES.
Any specifications, drawings, copyrights, models, schematics, technical information, data, tools, dies, molds, patterns, masks, gauges, test equipment, and other materials furnished or paid for by Spraying Systems Co. will: (i) be kept confidential; (ii) remain or become Spraying Systems Co.'s exclusive property; (iii) be used by the Supplier exclusively for Spraying Systems Co.'s orders; (iv) be clearly marked as Spraying Systems Co.'s property and segregated when not in use; (v) be kept in good working condition at Supplier's expense; and (vi) be shipped to Spraying Systems Co. promptly upon demand. Supplier will insure Spraying Systems Co.'s property and be liable for loss or damage while in Supplier's possession or control, ordinary wear and tear accepted.
All work product, concepts, inventions, ideas, patent rights, dimensions, drawings, images, know-how, data, trademarks, trade secrets, copyrights and/or other intellectual property rights which are related to, arise out of, or are developed in connection with the provision of Services or Custom Items to Spraying Systems Co. (collectively, the "Intellectual Property") are and shall remain the exclusive property of, and all ownership rights therein do and shall vest in, Spraying Systems Co. Supplier hereby irrevocably assigns to Spraying Systems Co. any right it has in the foregoing and agrees to sign all necessary documents and/or take such other actions as Spraying Systems Co. may request in order to perfect any and all such rights.
11. CONFIDENTIALITY AND PUBLICITY.
During the course of the Purchase Order, either party may have or may be provided access to the other's confidential information and materials. The Supplier shall consider all communication from Spraying Systems Co. relating to pricing, designs, drawings, models, quantities, forecasts and specifications are to be confidential. Supplier shall not use the intellectual property of Spraying Systems Co. in any way other than the performance of this PO and the manufacture and support of Products for Spraying Systems Co." Each party agrees to maintain confidential information in accordance with the terms of the Purchase Order and any applicable separate nondisclosure agreement between Spraying Systems Co. and Supplier ("NDA"). In the absence of a NDA or other written agreement, at a minimum each party agrees to maintain such information in confidence and limit disclosure on a need to know basis, to take all reasonable precautions to prevent unauthorized disclosure, and to treat such information as it treats its own information of a similar nature. Use of Spraying Systems Co. product in advertising materials or web sites is strictly prohibited without written authorization.
12. INTELLECTUAL PROPERTY INDEMNIFICATION.
Supplier will indemnify and hold Spraying Systems Co. and its customers harmless from any costs, expenses (including reasonable attorneys' fees) losses, damages, or liabilities incurred because of actual or alleged infringement of any patent, copyright, trade secret, trademark, mask work, or other intellectual property right arising out of the use or sale by Spraying Systems Co. or Spraying Systems Co.'s customers of Items or Spraying Systems Co.'s products manufactured using the Items or containing the Items, irrespective of whether Spraying Systems Co. furnishes any specifications to Supplier.
13. HAZARDOUS MATERIALS.
If Items or any Services provided hereunder include materials which are or contain hazardous goods, chemicals, contaminants, substances, pollutants, or any other materials that are defined as hazardous by relevant local, state, national, or international law, regulations, and standards ("Hazardous Materials"), Supplier represents and warrants that Supplier and its personnel providing Services to Spraying Systems Co. understand the nature of and hazards associated with the design and/or service of such Items including handling, transportation, and use of such Hazardous Materials, as applicable to Supplier. Prior to causing Hazardous Materials to be on Spraying Systems Co.'s property, Supplier will obtain written approval from Spraying Systems Co.'s Site Environmental/Health/Safety organization. Supplier will be fully responsible for and indemnify Spraying Systems Co. from any liability resulting from the actions of Supplier or contractors in connection with: (i) providing such Hazardous Materials to Spraying Systems Co., or (ii) the use of such Hazardous Materials in providing Services to Spraying Systems Co. The supplier shall deliver an MSDS to Spraying Systems Co. with each shipment of the above listed materials.
14. CUSTOMS CLEARANCE.
Upon Spraying Systems Co.'s request, Supplier will promptly provide Spraying Systems Co. with a statement of origin for all Items and with applicable customs documentation for Items wholly or partially manufactured outside the country of import.
15. COMPLIANCE WITH LAWS...
General: Supplier will comply with all national, state, and local laws and regulations governing the manufacture, transportation, import, export, and/or sale of Items and/or the performance of Services in accordance with the Purchase Order, including but not limited to Department of Commerce, including U.S. Export Administration regulations, Securities Exchange Commission, Environmental Protection Agency, and Department of Transportation regulations applicable to Hazardous Materials, and Customs and Border Protection (including country of origin marking/disclosures).
Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act relating to the use of conflict minerals (including related SEC rules)- In order to comply with Spraying Systems Co.'s policy of eliminating conflict minerals from the Democratic Republic of the Congo (DRC) and other covered countries from our supply chain wherever commercially feasible to do so, Supplier agrees that by fulfilling this purchase order it either:
A. Is representing and warranting that all products supplied to Spraying Systems Co. contain no conflict minerals; or
B. will provide to SSCO an itemized written disclosure of the conflict mineral content of each product and the country of origin of the conflict minerals prior to shipment.
*Covered Countries are: Democratic Republic of the Congo, Angola, Burundi, Central African Republic, Congo Republic, Rwanda, South Sudan, Tanzania, Uganda or Zambia
European Union 2002/95/EC, Restriction of Hazardous Substances Directive (RoHS) - Supplier agrees to assure that all electrical and electronic products supplied to Spraying Systems Co. are compliant with this directive.
European Union Regulation 1907/2006 EC Registration, Evaluation, Authorization and Restriction of Chemicals (REACH)- Supplier warrants that all products supplied to Spraying Systems Co. are free of all chemical substances of very high concern (SVHC) prohibited by this regulation.
Supplier further agrees to abide by all of Spraying Systems Co.'s rules and regulations while on Spraying Systems Co.'s premises or performing Services including, but not limited to, safety, health and Hazardous Material management rules, and rules prohibiting misconduct on Spraying Systems Co.'s premises such as use of physical aggression against persons or property, harassment, and theft.
16. BUSINESS ETHICS
Spraying Systems Co. does not tolerate the use of child labor, forced labor, human trafficking or discriminatory practices with-in its operations or within the operations of affiliated partners or suppliers. Further, SSCO expects all of its suppliers to respect the human rights of its employees and to require the same from its supply chain. Supplier's who are found to violate this policy will be considered in material breach of contract. We continue to work to improve programs and implement measures to assure protection of human dignity, human rights and safety in our facilities and supply chain.
SPRAYING SYSTEMS CO.'s agents and employees are prohibited from soliciting or accepting kickbacks, bribes, loans, and inappropriate gifts; including meals or entertainment of more than nominal value. Supplier is required to avoid any actions which might induce SPRAYING SYSTEMS CO.'s agents and employees to accept any improper consideration, whether legal or illegal. Supplier warrants that no such consideration has been offered or provided to any SPRAYING SYSTEMS CO. agent or employee. SPRAYING SYSTEMS CO. reserves the right, and by acceptance of an order, Supplier hereby agrees to permit SPRAYING SYSTEMS CO., to audit any of Supplier's records that are deemed necessary by SPRAYING SYSTEMS CO. to ensure compliance with this ethics policy. Supplier further agrees to certify compliance with this policy or disclose any violations thereof, if requested to do so. The supplier is required to assure it's agents, employees, and subcontractors abide by SPRAYING SYSTEMS CO.'s visitor policy which is available in our lobby (or upon request).
Noncompliance with the SPRAYING SYSTEMS CO.'s ethics policy on the part SPRAYING SYSTEMS CO.'s agents or employees should be reported to the purchasing manager, the CFO, and/or other appropriate management.
17. WAIVER, REMEDIES AND ASSIGNMENT.
No waiver of any breach hereof will be held to be a waiver of any other or subsequent breach. If any provisions of the Purchase Order are determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination will not affect the validity of the remaining provisions. Spraying Systems Co.'s rights and remedies herein are in addition to any other rights and remedies provided by law or in equity. Neither party may assign any rights in nor delegate any obligations under the Purchase Order or any portion thereof, without the written consent of the other. For purposes of this Paragraph 16, the acquisition, merger, consolidation, or change in control of Supplier or any assignment by operation of law will be deemed an assignment that requires Spraying Systems Co.'s written consent.
18. GOVERNING LAW.
These terms and conditions of purchase are to be governed by and will be construed in accordance with the laws of the State of Illinois without regard to the rules concerning conflicts of laws.
19. GENERAL INDEMNIFICATION.
Supplier will indemnify, defend and hold Spraying Systems Co. and its affiliates, their officers, directors, employees and agents, harmless from and against all claims, losses, damages, punitive damages, liabilities, suits, and related costs and expenses (including reasonable attorneys' fees and other costs of litigation) ("Losses"), whether actual or alleged, arising or resulting, from the acts, omissions or negligence of Supplier or its employees or agents, Supplier's breach of warranty hereunder or the deficient performance of, or failure to perform, the scope of work allocated to Supplier under this PO. Supplier will further indemnify and hold Spraying Systems Co. harmless from all loss and damages arising from supplier's breach of confidentiality.
Without limiting or qualifying Supplier's liabilities, obligations, or indemnities otherwise assumed by Supplier pursuant to the Purchase Order, Supplier will maintain, at its sole cost and expense, with companies acceptable to Spraying Systems Co., commercial general liability and automobile liability insurance with limits of liability not less than $1,000,000.00 per occurrence and including liability coverage for bodily injury or property damage: (1) assumed in a contract or agreement pertaining to Supplier's business and (2) arising out of Supplier's product, services, or work. Supplier's insurance will be primary, and any applicable insurance maintained by Spraying Systems Co. will be excess and non-contributing. The above coverage will name Spraying Systems Co. as additional insured. Supplier will also maintain statutory workers' compensation coverage, including a broad form all states endorsement in the amount required by law, and employers' liability insurance in the amount of $1,000,000.00 per occurrence. Such insurance will include an insurer's waiver or subrogation in favor of Spraying Systems Co. If Supplier is providing any Service to Spraying Systems Co. of a professional nature, Supplier will maintain professional liability insurance (including errors and omissions coverage) with liability limits not less than $1,000,000.00. Supplier will provide Spraying Systems Co. with properly executed certificate(s) of insurance prior to commencement of performance of the Purchase Order and will notify Spraying Systems Co., no less than 30 days in advance, of any reduction or cancellation of the above coverage.
Spraying Systems Co. will be entitled at all times to set off any amount owing, for any reason, at any time, from Supplier to Spraying Systems Co. or any of its affiliated companies against any amount payable at any time by Spraying Systems Co. in connection with the Purchase Order.
22. RESERVATION OF RIGHTS.
Spraying Systems Co. expressly reserves all rights and remedies which are available to it at law or equity, including but not limited to rights and remedies set forth in the Uniform Commercial Code.
23. INDEPENDENT CONTRACTOR.
In performing Services or providing Items under the Purchase Order, Supplier is an independent contractor and its personnel and other representatives will not act as nor be agents or employees of Spraying Systems Co. As an independent contractor, Supplier will be solely responsible for determining the means and methods for performing or providing the required Services or Items. Supplier will have complete charge and responsibility for personnel employed by Supplier, however, Spraying Systems Co. reserves the right to instruct Supplier to remove from Spraying Systems Co.'s premises immediately any of Supplier's personnel who are in breach of the Purchase Order. Such removal will not relieve Supplier's obligation to provide Services or Items under the Purchase Order.
24. CONFLICTS - SUBCONTRACTOR REQUIREMENTS.
A. Supplier represents and warrants that supplier has no outstanding agreement or obligation that is in conflict with any of the provisions of the Purchase Order, or that would adversely affect Supplier's performance hereunder.
B. Supplier warrants that: (1) all of its employees or subcontractors who perform work for it hereunder will have entered into written agreements with Supplier that ensure that the work they do is subject to the terms and conditions of Paragraph: 7, 11, 13, 15, and 16.