The following terms and conditions (“Terms and Conditions”) form a part of the purchase order (the “PO” or the “Order”) attached hereto issued to Buyer’s (defined below) supplier or vendor. In case of conflict between any of the following Terms and Conditions and the specific instructions in the Order, the specific instructions shall control.
1. Definitions. As used herein: (a) “Buyer” shall mean Environmental Solutions Group , The Heil Co., Marathon Equipment Company, Bayne Machine Works, The Curotto-Can, LLC, 3rdEye, So. Cal. Soft-Pak, Inc., or and any other entity which may be subsequently acquired or designated by Dover Corporation as being part of ESG Order (collectively, “ESG”), and (b) “Seller” shall mean the supplier or vendor accepting the Order, or undertaking to furnish the goods, materials, equipment, labor, or services specified in the Order, together with any agent, officer, servant, employee, or subcontractor of such supplier or vendor.
2. Acceptance of Terms and Conditions. ANY PURCHASE BY BUYER FROM THE SELLER, AND ANY ACCEPTANCE OF THE ORDER BY SELLER, IS AT ALL TIMES EXPRESSLY LIMITED TO AND CONDITIONAL UPON THESE TERMS AND CONDITIONS AND THE TERMS OF THE ORDER, AND SELLER’S COMPLETE ASSENT TO AND ACCEPTANCE OF ALL OF SUCH TERMS AND CONDITIONS. BUYER’S ORDER AND SELLER’S ACCEPTANCE THEREOF SHALL AT ALL TIMES BE SUBJECT TO AND CONDITIONAL UPON THE SPECIFIC TERMS AND CONDITIONS SET FORTH IN THE ORDER AND HEREIN.
ANY TERMS STATED ON SELLER’S FORMS (HOWEVER AND WHENEVER PROVIDED TO BUYER) THAT PURPORT TO MODIFY, ARE DIFFERENT FROM, ARE IN ADDITION TO, OR ARE INCONSISTENT WITH, THE ORDER OR THE TERMS AND CONDITIONS ARE DEEMED TO BE MATERIAL AND ARE HEREBY EXPRESSLY OBJECTED TO, AND SHALL HAVE NO FORCE OR EFFECT UPON BUYER UNLESS SPECIFICALLY AGREED TO IN A WRITTEN AGREEMENT SIGNED BY AN AUTHORIZED OFFICER OF BUYER. BUYER’S FAILURE TO OBJECT TO PROVISIONS CONTAINED IN ANY COMMUNICATION FROM SELLER SHALL NOT BE DEEMED A WAIVER OF THE TERMS AND CONDITIONS OF THE ORDER OR THESE TERMS AND CONDITIONS.
IF, AND TO THE EXTENT, SELLER’S TRANSACTIONAL DOCUMENTS MAY HAVE TERMS AND CONDITIONS WHICH ARE INCONSISTENT WITH OR CONTRARY TO THESE TERMS AND CONDITIONS OR THE TERMS IN THE BUYER’S ORDER, SUCH SELLER’S TERMS AND CONDITIONS SHALL AT ALL TIMES BE DEEMED NULL AND VOID.
3. Quantity. The quantity set forth in the Order must be delivered or performed in full and may not be changed without the Buyer’s prior written consent. Goods or services in excess of those specified in the Order will not be accepted.
4. Price. If the applicable price is not specifically stated in the Order, the goods or services shall be billed by Seller at the lesser price of: (1) the price last charged to Buyer or (2) a price, not less favorable, than is currently extended by Seller to any other customer for the same or similar articles in similar quantities. Seller warrants that prices shown on the Order are complete and there are no additional charges of any type including, but not limited to, shipping, packaging, labeling, custom duties, taxes, storage, insurance, boxing, or crating.
5. Payment. Invoices from Seller to Buyer are payable net 120 days from the date of delivery to the specified manufacturing facility. Upon the express written request by Buyer, invoices and the payments of invoices, will be transmitted electronically, otherwise all invoices will be mailed. Seller shall share with Buyer such information, including the federal tax identification number for Seller, as is reasonably necessary or appropriate to properly address applicable federal and state income tax reporting obligations. Any cash discount period will date from the receipt of the goods or completion of services or from the date of the invoice, whichever is later. C.O.D. shipments will not be accepted. Errors or omissions in invoices shall entitle Buyer to delay payment of disputed amounts without loss of any discount privileges. Buyer shall have the right to withhold disputed amounts until said dispute is resolved, provided undisputed amounts are paid to Seller. Buyer shall also have the right to set off any monies due to Buyer from Seller.
6. Shipment. At the time of shipment, Seller shall send Buyer a notice of shipment stating purchase order number, kind and amount of goods, and route by which shipment is being made. Buyer may cancel or terminate an Order at any time prior to shipment by written notice delivered to Seller, without cost or expense to Buyer. All goods shall be suitably packed, marked, and shipped in accordance with shipping instructions in the Order and the requirements of common carriers, in a manner to protect the ordered goods and secure the lowest transportation cost. Seller shall be responsible for any difference in freight charges arising from failure to comply with all provisions of the applicable Order or to describe the shipment properly. If, for any reason, the Order does not indicate terms of shipment, the shipment will be DDP – Named Place (Incoterms® 2020) as the delivery location specified in the respective Order. Seller agrees to pay all transportation charges incurred as a result of deviation from Buyer’s routing instructions. Notwithstanding any agreement to the contrary, Seller shall bear all risk of loss with respect to the goods described in the Order until such goods are delivered to Buyer’s specified facility.
7. Inspection and Acceptance. All goods and services received from Seller shall be subject to Buyer’s right of inspection and rejection. Non-conforming or defective goods will be held for Seller’s instruction at Seller’s risk and expense, and may be returned at Seller’s expense. Buyer may, in its sole discretion, modify such non- conforming goods to comply with the terms and delivery time frame of its Order. Costs of any such modifications will be the sole expense and liability of the Seller. If Buyer’s inspection discloses that any portion of the goods are defective or non-conforming, Buyer shall have the right to cancel any unshipped portion of the corresponding Order. Payment for goods prior to inspection shall not constitute acceptance thereof and is without prejudice to any and all claims that Buyer may have against the Seller
8. Revocation. Notwithstanding any other provision herein, the Order is not a firm offer, and Buyer reserves the right to revoke the Order at any time prior to Seller’s acceptance thereof.
9. Warranties. Seller expressly warrants that all goods and merchandise furnished pursuant to the Order (i) will conform to the specifications, drawings, samples, or other descriptions furnished or adopted by Buyer, (ii) will be of good material and workmanship, and
(iii) will be free from defects. Seller further warrants that the goods and merchandise will be merchantable and fit and sufficient for the purpose intended. In addition to any other remedies available to Buyer pursuant to these Terms and Conditions or applicable law, Seller agrees to reimburse Buyer the amount paid for, or at Buyer’s election, to replace at Seller’s sole cost (including shipping, handling and installation), any defective goods or merchandise. In the event that Buyer has to perform field work (or have such field work performed by a third party) to effect repairs caused by Seller’s defective goods, Seller shall reimburse Buyer for Buyer’s expenses to effect such repairs. This warranty shall survive the delivery of the goods and any inspection, acceptance and payment therefor.
Seller warrants that all goods or services furnished pursuant to the Order were produced or performed in compliance with all applicable federal, state, and local laws, rules, regulations, and ordinances, including, without limitation, (a) the Fair Labor Standards Act; (b) Equal Employment Opportunity Acts; (c) the Occupational Safety and Health Act and all standards, rules, regulations, and orders issued pursuant thereto; and (d) all other federal and state occupational safety and health statutes, and all applicable Governance Policies published on the Dover Corporation Website (www.dovercorporation.com) including but not limited to the Supplier Code of Conduct and Conflict Minerals Policy. Seller shall secure all necessary government authorizations, licenses, and permits applicable to the goods to be supplied or the labor or services to be performed pursuant to the Order.
10. Buyer’s Indemnities. Seller agrees to indemnify and to defend Buyer, its officers, employees, agents, affiliates, representatives, successors and assigns, from and against all costs, expenses, claims, demands, suits, causes of action, proceedings, awards, judgments, taxes, damages (of any kind or nature whatsoever) and liabilities (including, without limitation, attorneys’ fees) incurred or suffered by Buyer at any time which may arise from or out of:
(a) Any acts or omissions of Seller or its employees or agents;
(b) Seller’s obligations and performance under the Order and these Terms and Conditions;
(c) Any breach by Seller of its warranties or representations as provided in the Order or these Terms and Conditions;
(d) Allegations that any goods, merchandise or services provided by Seller were in any way defective, including, without limitation, allegations that any of the goods, merchandise or services (i) were not merchantable or not fit for the particular purpose for which the items are to be used; (ii) failed to meet any industry standard or guideline;(iii) failed to meet any applicable specifications; (iv) were defective in their design, manufacture, or material; (v) breached any warranty; or (vi) failed to comply with any applicable law or regulation;
(e) Allegations that Seller or Buyer is strictly liable due to a defect in the goods or services provided to Buyer pursuant to the Order;
(f) Any recall of the goods or merchandise provided by Seller, whether determined necessary by Buyer, Seller, or any other entity;
(g) Any field campaign to repair or replace Seller’s goods or merchandise, whether determined necessary by Buyer, Seller, or any other entity;
(h) Allegations that Seller or its goods or services infringed on any patent, trademark, copyright, or trade secret;
(i) Allegations that Seller failed to perform under any contract, expressed or implied, with its subcontractors, suppliers, or employees, including but not limited to Mechanics Liens;
(j) Enforcement of the Order or the terms and Conditions; and
(k) Any violation by Seller or its employees or agents of applicable law.
Any money due Seller may be retained by Buyer until all such claims or suits shall have been settled. The indemnities described above shall survive the delivery of the subject goods or services provided to Buyer pursuant to the Order and the inspection, acceptance and payment therefor. Buyer may require Seller to defend any suits concerning the foregoing, regardless of whether such suits are justified. Buyer may be represented by and actively participate through its own counsel in any such act or proceeding, if it so desires, and the cost of such representation will be paid by Seller. Seller shall be responsible for payment or performance of any settlement of any such suit or proceeding.
11. Trademarks and Intellectual Property. Seller shall not use any of Buyer’s trademarks, service marks or other logos (the “Marks”) without Buyer’s prior written approval. Seller acknowledges and agrees that: (i) Buyer owns all of its trademarks and service marks and Seller acquires no rights in the Marks; and (ii) Seller will not contest the ownership of such Marks.
Except for goods manufactured by Seller according to designs or specifications specifically provided to Seller by Buyer, Seller agrees to indemnify, defend, and discharge Buyer from any loss, liability or expense incurred by Buyer in connection with the violation or infringement of any patent or trademark applicable to the manufacture or sale by Seller or Buyer of the goods purchased from Seller by Buyer. All intellectual property of Buyer, its products and processes including, but not limited to, Buyer’s patents, copyright, trademarks, design rights and know-how, is and shall remain the sole and exclusive property of Buyer.
All of Buyer’s specifications, drawings, sketches, schematics, models, samples, tools, computer or other apparatus programs, technical or business information or data, written, oral or otherwise (all hereinafter designated “Buyer’s Information”) obtained by Seller shall remain Buyer’s sole and exclusive property and a Bailment Agreement shall be signed if seller is provided any Buyer-owned tools, fixtures or equipment. All copies of Buyer’s Information in written, graphic or other tangible form shall be returned to Buyer upon request. No licenses under any patents, copyrights, trademarks, trade secrets or any other intellectual property, expressed or implied, are granted by Buyer to Seller under the Order.
12. Title. Seller warrants to Buyer that it will convey good and marketable title to the goods which it sells to Buyer pursuant to the Order free and clear of all liens, encumbrances and claims.
13. Governing Law. The Order and these Terms and Conditions shall be governed by and interpreted in accordance with the laws of the State of Tennessee. The parties hereto agree that all actions or proceedings arising in connection with the Order and these Terms and Conditions shall be tried and litigated exclusively in the State and Federal courts located in the County of Hamilton, State of Tennessee. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature, thereby precluding the possibility of litigation between the parties with respect to or arising out of the Order in any jurisdiction other than that specified in this paragraph. Each party hereby waives any right it may have to assert the doctrine of forum non-conveniens or similar doctrine or to object to venue with respect to any proceeding brought in accordance with this paragraph, and stipulates that the State and Federal courts located in the County of Hamilton, State of Tennessee shall have in personam jurisdiction and venue over each of them for the purpose of litigating any dispute, controversy, or proceeding arising out of or related to the Order or these Terms and Conditions. Each party hereby authorizes and accepts service of process sufficient for personal jurisdiction in any action against it as contemplated by this paragraph by registered or certified mail, return receipt requested, postage prepaid, to its address for the giving of notices as set forth in the Proposal. Any final judgment rendered against a party in any action or proceeding shall be conclusive as to the subject of such final judgment and may be enforced in other jurisdictions in any manner provided by law.
14. Dispute Resolution. If a dispute arising out of or in connection with this Agreement develops between the parties, and parties are unable to settle it through the good-faith negotiation between senior management, the parties mutually agree to utilize mandatory non-binding mediation with personal attendance of representatives of each party, having full authority to resolve disputes to address any controversy or claim arising out of, or relating to this Agreement, or relating to any change orders or other changes or addendums to this Agreement. The parties agree that if there is one or more disputed items that remain unresolved at the end of the mediation or thirty (30) days after one party notifies the other of intent to mediate (whichever occurs earlier), either party shall be entitled to file an action at law with such trial to be a bench trial, not a jury trial. To the extent a party prevails, that party shall be entitled to reimbursement of its pro rata costs and expenses, including reasonable attorneys’ fees, from the non-prevailing party.
15. Alteration of Terms. The Order and these Terms and Conditions constitutes the entire agreement between parties. Any conduct or transactional documents by Seller pertaining to the Order which adds to, varies from, or conflicts with the terms herein are hereby objected to. Such proposed terms will be void and the terms of the Order and these Terms and Conditions shall constitute the complete and exclusive statement of the contract between the parties. If this Order has been issued by Buyer in response to an offer and if any terms herein are additional to or different from any terms of such offer, issuance of this order by Buyer constitutes an acceptance of such offer subject to the express conditions that Seller (1) consents to such additional and different terms contained herein, and (2) acknowledges that this Order and Buyer’s Terms and Conditions constitute the entire agreement between the Buyer and Seller with respect to the sale and purchase of the goods.
16. Assignment. The Order may not be assigned or sublet by Seller without Buyer’s prior written consent, and in no case shall assignment or subletting relieve Seller from liability.
17. Confidentiality. For purposes of the Order and this paragraph, “Confidential Information” shall mean all of Buyer’s Information (as earlier defined herein) and Buyer’s proprietary or confidential information and trade secrets, whether disclosed in writing or by samples, including, but not limited to, Buyer’s inventions, techniques, technology, know-how, designs, specifications, processes, development, material formulations, ideas, concepts, customer information, and marketing, sales, business plans, merchandising and pricing information and strategies. All information provided by Buyer to Seller shall be deemed to be Buyer’s Confidential Information whether or not specifically identified by Buyer as Confidential Information. Buyer’s Confidential Information shall include summaries, work sheets, memoranda or other materials created by Seller that is based upon or derived from the Confidential Information provided by Buyer. Seller agrees that it shall not without the express written consent of Buyer: (i) use for itself, or for the benefit of any third party, any of the Confidential Information it may obtain from Buyer; disclose or communicate Buyer’s Confidential Information to any third party; nor (iii) use any portion of Buyer’s Confidential Information for any purpose other than for the purposes which are specifically identified by Buyer in writing. The obligations set forth in this paragraph will not extend to any of Buyer’s Confidential Information which (a) was in the unrestricted possession of Seller prior to the receipt thereof from Buyer, (b) is within the public domain or has been publicly disclosed, or enters into the public domain through no fault or wrongful act of Seller; or (c) is received from a third party with the lawful right to possess it, not under an obligation of confidentiality to Seller. Notwithstanding the foregoing, Seller may disclose any Confidential Information if required to do so by subpoena or other legal process but shall notify Buyer of such anticipated disclosure as soon as practicable.
18. Insurance. Seller shall comply with the following insurance requirements, unless a higher coverage limit is required due to the type of Products or Services being provided by Seller:
(a) Seller shall comply with all workmen’s compensation laws and employer’s liability acts of the state or states having jurisdiction of Seller, and Seller will carry full insurance covering, or to be authorized to self-insure, liability to its employees under such laws.
(b) Seller shall carry comprehensive general public liability insurance, including the following liability coverages: (1) independent contractors, (2) products liability, and (3) automobile. Each liability coverage shall have personal injury limits of not less than $1,000,000 for each person or occurrence, and not less than $5,000,000 in the aggregate, and property damage limits of not less than $1,000,000 for each occurrence and not less than $5,000,000 in the aggregate.
(c) Seller will endorse Buyer as an additional insured on Seller’s coverage for general liability with coverage of at least $1,000,000 per occurrence and not less than $5,000,000 in the aggregate
(d) Upon request, certificates from insurance carriers acceptable to Buyer evidencing the required insurance coverages shall be provided by Seller. Failure to obtain insurance policies at the requisite coverage levels shall not mitigate Seller’s obligation to indemnify Buyer against any such claims of loss or damage.
19. Successors and Binding Effect. These Terms and Conditions shall be binding upon and shall inure to the benefit of the parties and their respective legal representatives, successors and assigns.
20. Agency. No agent, employee, salesman, dealer or distributor has any authority to obligate Buyer with regard to any terms or conditions that are not expressly contained in the Order or these Terms and Conditions.
21. Enforcement. In any litigation or other proceeding by which Buyer either seeks to enforce its rights under the Order or these Terms and Conditions (whether in contract, tort, or both) or seeks a declaration of any rights or obligations under the Order or the Terms and Conditions, Buyer shall be awarded its reasonable attorney fees and costs and expenses incurred.
22. Severability. If any term or provision of the Order or the Terms and Conditions is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, such illegal, unenforceable, or invalid provisions or part thereof shall be stricken therefrom, and such provision shall not affect the legality, enforceability, or validity of the remainder of the Order or Terms and Conditions. If any provision or part thereof is stricken in accordance with the provisions of this section, then the stricken provision shall be replaced, to the extent possible, with a legal, enforceable, and valid provision that is as similar in tenor to the stricken provision as is legally possible.
23. Time of the Essence. Time is of the essence in respect to all provisions of the Order that specify a time for performance by Buyer.
24. Ambiguities. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in interpreting the order or the Terms and Conditions. The language in the Order and the Terms and Conditions shall be interpreted as to its fair meaning and not strictly for or against any party.
25. Waiver. Buyer’s failure to enforce at any time any of the provisions, rights or elections provided in the Order or the Terms and Conditions, irrespective of any previous action or proceeding taken by it, shall in no way be considered (i) a waiver of those or any other provisions, rights or elections, (ii) to affect the validity of the Order, or (iii) preclude or prejudice the exercise of the same or any other provisions, right or election it may have hereunder.
26. Headings. The headings herein are included for convenience only and shall neither affect the construction or interpretation of any provision in the Order or the Terms and Conditions nor affect any of the rights or obligations of the parties to the Order.
27. Jury Trial Waiver. To the fullest extent permitted by law, and as separately bargained-for-consideration, Seller hereby waives any right to trial by jury in any action, suit, proceeding, or counterclaim of any kind arising out of or relating to the Order.
28. Compliance. Seller and its employees, agents, subcontractors and representatives, if ever in or about the premises of Buyer or Buyer’s customer as a result of the Order, shall at all times be subject to all of Buyer’s work rules and standards of conduct, and shall at all times conduct themselves in a safe, cautious and professional manner.
29. Notice. Any notice, demand, or communication required, permitted, or desired to be given hereunder shall be deemed effectively given when mailed by prepaid certified mail, return receipt requested; delivered by hand or personal delivery or overnight courier service; or delivered by facsimile or other electronic transmission, which date and time stamps such notices, addressed to the intended recipient at its address contained in the Order, or, if none, then to its last known address, or to such other address, and to the attention of such other person(s) or officer(s) as either party may designate by written notice.
END OF DOCUMENT
Revision Date – February, 2020
