Supplier Terms & Conditions
PAKET CORPORATION, AN ILLINOIS CORPORATION (together with its affiliates and/or subsidiaries, “Buyer”), will not accept and objects to any terms and conditions or other writing on the sales order of a seller (“Seller”) or acknowledgement which is different from or additional to those terms and conditions contained in the applicable purchase order (the “Purchase Order”). No modification or waiver of the Purchase Order will be effective unless specified in writing and signed by the party against whom enforcement is sought. No term or condition of Seller’s sales order or acknowledgement, expressly including any effort to negate the terms and conditions set forth in the Purchase Order, shall be effective or binding against Buyer. The Purchase Order shall constitute written notice signed by Buyer of objection to and rejection of any term or condition in Seller’s sales order or acknowledgement, inconsistent with the terms and conditions of purchase of Buyer contained in the purchase order, whether issued or delivered to Buyer prior or subsequent to the date of the Purchase Order. Notwithstanding the foregoing, each Purchase Order shall be subject to, and governed by, these Terms and Conditions of Purchase (the “T&Cs”), and to the extent a Purchaser Order conflicts with the T&CS, the T&Cs shall govern unless such Purchaser Order (a) specifically states that it is controlling and (b) is signed by an officer of Buyer.
2. PAYMENT, PRICING AND ESCALATION
The price to be paid for the goods shall be set forth in the Purchase Order. The parties agree that all charges are included in the price of the goods set forth in the Purchase Order and extra charges of any kind shall not be allowed unless specifically agreed to in writing by Buyer. The price fixed in or by the Purchase Order is not subject to change except as expressly provided herein or by amendment as provided herein. Seller warrants that the price complies with all applicable laws and regulations. If price is omitted on the Purchase Order, the price will be the lowest prevailing market price at the time of the issuance of the Purchase Order. Unless escalation terms are stated on the Purchase Order, no price escalation will be applicable to the Purchase Order.
3. PACKING, SHIPPING AND STORAGE:
(a) No charge will be assessed against Buyer for packing, crating, drayage, freight, storage and/or any other services unless set forth on a Purchase Order, and shipments must be packed and crated to conform with the requirements of the carriers and all applicable Federal, State, and local laws. Seller shall be responsible for ensuring the proper packaging of goods so that all packaging, packing, and marking requirements are satisfied and comply with all applicable Federal, State and local laws. Seller certifies that it is in compliance with the Occupational Safety Hazards Act (“OSHA”) and with all of the rules and regulations promulgated by the U.S. Department of Transportation (“USDOT”), including those relating to hazardous materials. Unless otherwise specified on a Purchase Order, all packing, packaging, and crating by Seller shall be in compliance with carrier’s tariffs and in suitable containers for protection in shipment and storage. Unless otherwise directed, all goods shipped in one day from and to a single location must be consolidated on one bill of lading or airbill, as appropriate. Seller shall at all times comply with Buyer’s written shipping instructions.
(b) Seller must include Buyer’s item code(s) on the container label for each item and must provide the shipping documentation listed immediately below. Should Seller fail to include such Buyer’s item code(s) or provide any of the documentation listed below, Buyer shall be permitted to reject delivery of the applicable Purchase Order at no cost to Buyer and returned to Seller at Seller’s expense.
(i) Certificate of Analysis (COA)
(ii) Technical Data Sheet (TDS) or Product Specification Sheet
(iii) Safety Data Sheet (SDS)
(iv) Certificate of Conformance (COC)
(v) Packing Ship to include Purchase Order Number and item code(s)
(vi) Bill of Lading
All shipping documents not included with the shipment should be sent to firstname.lastname@example.org and email@example.com. All updates, changes and additional information pertaining to a Purchase Order should be sent to Buyer’s purchasing department at firstname.lastname@example.org.
Goods delivered either in excess of 105% of the amount called for in the Purchase Order or less than 95% of the amount called for in the Purchase Order may be refused by Buyer and returned at Seller’s expense. In the event the quantity delivered is less than the quantity ordered, Buyer at its option may either accept the quantity delivered as fulfillment of the Purchase Order (and receive a credit or return of payment for the amount of such Goods that were not delivered to Buyer) or require Seller to deliver the balance of the goods in accordance with the terms of the Purchase Order. In the event the quantity delivered is greater than the quantity ordered, Buyer at its option may either accept the quantity delivered as fulfillment of the Purchase Order (without any additional payment to Seller) or require such excess amount of goods to be returned to Seller at Seller’s expense.
5. SUBSTITUTION AND MODIFICATION
No substitution or modification of any goods, component parts, tooling, sources of raw materials, processes, or manufacturing sites may be made without Buyer’s prior written consent.
6. TERMS, INTEREST, DISCOUNTS, LATE FEES, NOTICE OF DEFAULT, U.S. DOLLARS AND COMMISSIONS
Payment is made when Buyer’s check is mailed or upon initiation of an electronic funds transfer (ACH or wire transfer). All charges against Buyer shall be made in US Dollars. Payment by Buyer shall not constitute acceptance of a Purchase Order. All personal property taxes assessable upon the goods prior to receipt by Buyer shall be borne by Seller. Unless otherwise specified on the Purchase Order, Buyer shall pay the invoiced amount within sixty (60) after receipt of a correct invoice from Seller. In connection with any discount offered for early payment, time shall be computed from the date of the receipt of the invoice. For the purpose of computing the discount earned, payment shall be considered to have been made on the date which appears on the payment check or the specified payment date if an electronic funds transfer payment is made. No late charges shall be assessed against Buyer for the late payment of an invoice. If Buyer fails to pay an invoice when due, Seller shall give Buyer not less than thirty (30) days written notice to cure such failure prior to declaring a breach of this agreement.
(a) Buyer may cancel and terminate the Purchase Order, in whole or in part, at any time prior to delivery in which case Buyer’s sole and exclusive financial obligation and liability will be limited to actual damages actually suffered by Seller with respect to such cancellation and termination. Actual damages shall be measured by the actual, direct cost to Seller of goods supplied (as supported by documents presented by Seller); provided that Seller shall be obligated to use commercially reasonable efforts for a reasonable time to sell the goods to other prospective purchasers (in which event Buyer’s liability shall be measured by the difference, if any, between said actual damages and the proceeds of any resale of the goods by Seller). In any event, if the goods are fungible and in a reasonable and general saleable condition (and not unique or special to Buyer), then Buyer’s sole and exclusive liability hereunder shall be a reasonable charge for storage of such goods by Seller until resold, but in no event exceeding thirty (30) days. Notwithstanding the foregoing, Buyer may terminate the Purchase Order, in whole or in part, without liability if (i) Buyer anticipates Seller’s breach of the Purchase Order and Seller does not provide adequate assurance of its performance within ten (10) days of Buyer’s request; (ii) deliveries are not made at the time or in the quantities specified; or (iii) in the event of a breach or failure by Seller to meet other terms of the Purchase Order. This right shall be in addition to any other remedies provided Buyer by law.
(b) Seller acknowledges that time is of the essence to the Purchase Order; and therefore, Seller shall have no right to cancel or terminate the Purchase Order and Seller acknowledges and agrees that in the event of a breach of the Purchase Order by Seller that Buyer shall be entitled to all remedies available to it at law or in equity including money damages for both direct and indirect damages (indirect damages being deemed to include, without limitation, damages resulting in connection with the breach of any other agreement between Buyer and a third party, the subject matter of which relates to the Purchase Order).
The goods shall be delivered by the date or dates set forth on the Purchase Order, or in the absence thereof, as promptly as practicable. If Seller does not, or it is reasonably apparent that Seller will not, meet such schedule, Buyer may, in addition to any other rights or remedies provided by law or this order, require that Seller ship the goods via expedited routing to meet the schedule or to recover the time lost and Seller shall pay the difference in shipping costs. Any delays caused by Buyer for changes requested by Buyer must be acknowledged by Buyer in writing prior to the delivery dates. Unless otherwise set forth on the Purchase Order, (a) all Purchase Orders that expressly contemplate delivered pricing will be shipped and delivered via that method to Buyer’s plant or warehouse, and (b) all other Purchase Orders shall be shipped and delivered ex works to Buyer’s plant or warehouse. The goods shall be shipped via a carrier specified by Buyer, unless otherwise specified in the Purchase Order. The items set forth in Section 3(b) must accompany all shipments. Buyer reserves the right to change shipping dates specified for any portion of the Purchase Order.
9. INSPECTION AND TESTING
Buyer may reasonably inspect and test the goods prior to or upon receipt thereof and may reject any non-conforming or otherwise defective or damaged goods. Buyer reserves the right to reject and refuse acceptance of goods which are not in accordance with the Purchase Order or Seller’s representation or warranties, expressed or implied. Goods rejected by Buyer will be returned to Seller and Seller shall be responsible for charges for transportation both ways and for the cost of inspection. Despite any prior payment or acceptance, the goods are subject to test and inspection by Buyer for sixty (60) days after delivery. As to any defect not discoverable by inspection, Buyer may reject the goods at any time.
In the event that a recall of the goods is necessitated by a defect, a failure to conform to the specifications, applicable laws, or any other reason within Seller’s control, Seller shall bear all costs and expenses of such recall, including without limitation, costs of notifying customers, customer refunds, costs of returning goods, lost profits, and other expenses incurred to meet obligations to third parties.
11. TITLE AND RISK OF LOSS
Regardless of the delivery terms specified in the Purchase Order, title and risk of loss shall pass to Buyer at the time the goods are delivered to Buyer’s designated plant or other specified destination.
In consideration of Buyer purchasing the goods, Seller shall keep confidential and not disclose to any persons, or use, any and all confidential and proprietary knowledge, information or materials (collectively, the “Materials”), with respect to Buyer’s business, including, without limitation, customer names, customer supplied information, pricing, quantities, business and marketing plans and strategy, processes, tooling, dies, drawings, designs and trade secrets for so long as permitted by applicable law. Title to the Materials shall remain in Buyer at all times and Seller shall bear the risk of loss or damage to the Materials until returned to Buyer. All Materials, whether or not spoiled or used, shall be returned to Buyer at termination or completion of the Purchase Order unless Buyer shall otherwise direct. Additionally, the use of Buyer’s name or logo or other proprietary marks or those of Buyer’s customers in any advertisement or other publication by Seller must be pre-approved in writing by Buyer.
13. USE OF SELLER’S INFORMATION
All information disclosed to Buyer in connection with the Purchase Order is furnished as part of the consideration for Buyer’s placement of the Purchase Order. This information is not to be treated as confidential or proprietary, and no claim will be asserted against Buyer, its assigns, or customers, for its disclosure or use.
14. REPRESENTATION AND WARRANTIES; COVENANTS
Seller represents, warrants and covenants to Buyer that each of the following are, and shall continue to be, true, complete and correct:
(a) it has good title to all goods to be sold under the Purchase Order and that it has the unrestricted right to and shall convey marketable title free and clear of all liens, encumbrances and security interests;
(b) all goods delivered or services performed by Seller will conform to the Purchase Order and any description, specification, or sample relating to such goods or services;
(c) all goods shall be merchantable and fit for the use intended by Buyer;
(d) it shall produce and/or supply goods as more fully described in this attached Purchase Order and the goods shall conform to all specifications described in the Purchase Order or in any related document;
(e) it shall use, and deliver goods to, carriers specified by Buyer and shall be responsible for all shipping and delivery arrangements and expenses unless otherwise specified in the Purchase Order;
(f) all goods manufactured by Seller shall be manufactured in accordance with good quality workmanship and material and that all goods, and Seller, shall comply with and/or be sold, as the case may be, in accordance with all applicable Federal, state and local laws, statutes, rules, ordinances and regulations and Seller shall furnish Buyer with any certifications as may be required by such laws, statutes, rules, ordinances and regulations;
(g) Seller warrants that the prices of the items set forth herein do not exceed those charged by Seller to any other customer purchasing items in like or similar quantities.
Seller agrees that the foregoing representations, warranties and covenants shall inure to the benefit of Buyer, its successors, assigns, and customers, purchasers and users of its goods. The foregoing representations, warranties and covenants shall survive any delivery, inspection, testing, acceptance for payment by Buyer under the Purchase Order; and the termination of the Purchase Order for any reason for one (1) year from the date of delivery.
15. INFRINGEMENT OF PROPRIETARY RIGHTS
To the extent that the goods supplied under the Purchase Order are not supplied or produced to detailed specifications originated and furnished by Buyer, Seller represents and warrants that the sale or use of the goods will not infringe any United States or foreign patent, copyright, trademark, industrial design right or other proprietary right. Seller shall indemnify, defend and hold Buyer, its successors, assigns, shareholders, officers, directors, employees, agents, customers and those persons selling or using any of Buyer’s goods and any affiliated company of Buyer, harmless from and against any damage, liability, claims, losses, costs, expenses and fees (including reasonable attorneys’ fees) which may be incurred on account of infringement or alleged infringement of any United States or foreign patent, copyright, trademark, industrial design right or other proprietary right by the goods or use of the goods supplied under the Purchase Order.
16. EXCLUSION OF DAMAGES
To the fullest extent permitted by law, in no event shall Buyer be liable for any indirect, consequential, incidental, punitive or special damages (including loss of business, loss of opportunity or any damages based on a multiple of revenue, earning or similar financial metric) arising out of or in any way related to any cause whatsoever in relation to the Purchase Order, even if Buyer has been advised of the possibility of such damages. Buyer, under no circumstances, shall be liable for any damages in excess of the amount Buyer paid Seller (or was required to pay Seller) for the goods provided in the three (3)-month period immediately prior to the date in which the applicable claim arose.
Seller hereby covenants and agrees to indemnify and hold Buyer and its successors, assigns, employees, agents, customers and users of its goods, harmless against and from all liability, demands, claims, actions or causes of action, assessments, losses, fines, penalties, costs, damages and expenses, including reasonable attorneys’ fees, sustained or incurred by Buyer as a result of or arising out of or by virtue of (a) any inaccuracy in a representation or warranty made by Seller to Buyer herein, (b) the failure of Seller to comply with, or the breach by Seller, of any of the covenants of the Purchase Order to be performed by Seller (including, without limitation, this Section), (c) for the failure to make appropriate warnings, (d) for Seller’s negligent acts or omissions, (e) for failing to comply with any and all applicable Federal, State and local laws, statutes, orders, rules and regulations, and standards issued thereunder in effect on the date that the Purchase Order is accepted, including but not limited to those relating to health and safety. If Buyer is enjoined from use of the goods, Seller shall at Buyer’s option, either procure for Buyer the right to continue using the goods, replace the goods with substantially equivalent goods, modify the goods so as to be usable by Buyer, or repurchase the goods at the price set forth in this order.
Seller represents that as of the date of the Purchase Order it has, and shall pay for and maintain in full force and effect for one (1) year following the date of delivery of the goods, the following insurance coverage with an insurance company or companies acceptable to Buyer, and shall furnish promptly to Buyer an insurance carrier certificate evidencing such coverage and naming Buyer as an additional insured: public liability insurance with broad form endorsement (including goods liability, completed operations, contractors liability and protective liability) each with limits for bodily injury of not less than $1,000,000 per person and $2,000,000 per occurrence and for property damage of not less than $2,000,000.
19. FORCE MAJEURE
Buyer reserves the right, without any liability to Seller, to defer delivery under the Purchase Order, cancel or modify the Purchase Order or change any performance dates in the event of a strike, lockout, concerted act of workers or other industrial disturbance, fire, explosion, flood, epidemic, pandemic or other natural catastrophe, civil disturbance, riot or armed conflict whether declared or undeclared, curtailment, shortage, rationing or allocation of normal sources of supply of labor, materials, transportation, energy or utilities, mechanical breakdown, equipment failure, accident, Act of God, delay of subcontractors or vendors, sufferance of or voluntary compliance with acts of government and government regulations (whether or not valid), embargo or other conditions beyond Buyer’s reasonable control.
20. GOVERNING LAW AND CONSENT TO JURISDICTION
The Purchase Order shall be governed by and construed in accordance with the laws of the State of Illinois. Any court action which may be brought by any party pertaining to the Purchase Order shall be brought in Chicago, Illinois. The parties consent to personal jurisdiction and venue by state and federal courts in Chicago, Illinois for any action pertaining to the Purchase Order by personal service of process within or without the State of Illinois. Buyer and Seller agree that the United Nations Convention on International Sale of Goods shall have no force or effect on transactions relating to the Purchase Order.
21. INDEPENDENT CONTRACTORS
Nothing contained in the Purchase Order shall be construed as creating a partnership or joint venture between Buyer and Seller, and Seller shall at all times be deemed to be an independent contractor, solely responsible for the manner by and the form in which it fulfills the Purchase Order. To the extent Seller’s obligations under the Purchase Order require performance of services by Seller on the premises of Buyer or the premises of any of Buyer’s customers, Seller agrees that such services are to be rendered by Seller as an independent contractor and Seller shall comply with all of Buyer’s or said customer’s safety rules and regulations and shall provide all safeguards and take all necessary precautions to prevent the occurrence of any injury to any person or property during the performance of such services.
The Purchase Order may not be transferred, assigned or subcontracted in whole or in part by Seller without the prior written consent of Buyer. Such consent shall not relieve Seller of its obligations and liabilities hereunder.
Except as otherwise provided in Section 5, the Purchase Order may be modified or amended only by a writing of the party against whom enforcement is sought. These T&Cs may be amended or modified by the Buyer.
24. MISCELLANEOUS PROVISIONS
This instrument, together with all schedules, attachments and documents incorporated herein by reference, shall constitute the entire agreement between the parties. The failure of either party at any time to require performance by the other party of any provision of this agreement shall in no way affect the right to require such performance at any time thereafter, nor shall the waiver of either party of a breach of any provision of this agreement constitute a waiver of any succeeding breach of the same or other provision.
25. SELLER RESPONSIBLE FOR TAXES AND RECORDS
Seller shall be solely responsible for filing the appropriate federal, state and local tax forms, including, without limitation, a Schedule C or a Form 1020, and paying all such taxes or fees, including estimated taxes and employment taxes, due with respect to Seller’s receipt of any payments from Buyer. Buyer shall have no responsibility to pay or withhold from any payment to Seller, any federal, state, or local taxes or fees.
26. NONEXCLUSIVE AGREEMENT
Neither these T&Cs nor any Purchase Order shall create an exclusive agreement with Seller. Buyer is free to engage others to provide goods the same as or similar to Seller’s and Seller is free to offer and provide Seller’s goods to others; provided however, that Seller does not breach any of the terms and conditions contained herein.
27. COMPLIANCE WITH LAWS
Seller shall comply fully with all applicable foreign, federal, regional, provincial, state and local laws, statutes, orders, rules, ordinances and regulations in the performance of its obligations under the Purchase Order, including, but not limited to, all applicable employment, tax, export control, environmental laws and occupational health and safety regulations.
Upon Buyer’s request, Seller will promptly provide Buyer with a statement of origin for all the goods purchased hereunder and United States Customs documentation for the goods wholly or partially manufactured outside of the United States.
29. TAXES, LEVIES, DUTIES AND ASSESSMENTS
Unless otherwise specifically set forth on the Purchase Order, the contract price of the goods shall include all applicable foreign, federal, state, and local taxes, levies, duties and assessments. Seller shall pay all taxes, levies, duties, and assessments of every nature including any sales, use or other taxes payable at source and due in connection with the Purchase Order and Seller agrees to indemnify, defend, and hold Buyer harmless from any liability on account of any and all such taxes, levies, duties and assessments.
Seller agrees that Buyer shall have the right to set-off against any amounts which may become payable by Buyer to Seller under the Purchase Order, any amounts which Seller may owe to Buyer, whether arising under the Purchase Order or otherwise.
If a lien is filed against the goods by any entity which has supplied goods at the request of Seller, Seller shall at its expense, take all necessary action to cause such lien to be released or discharged immediately. Upon request of Buyer, Seller shall furnish affidavits, releases or other evidence Buyer may require to satisfy Buyer that all claims, liens, demands, liabilities, costs, expenses, losses, and damages, have been paid and discharged. Seller’s failure to comply with the requirements of this paragraph, shall be construed as authorization for Buyer to act on Seller’s behalf to facilitate compliance. Seller agrees that any and all costs incurred by Buyer while acting on Seller’s behalf will be the sole responsibility of Seller and will be paid upon demand.
The invalidity or unenforceability of any provision contained herein shall not affect the validity or enforceability of any other provision hereof. Any invalid or unenforceable provision shall be deemed severed from the Purchase Order to the extent of its invalidity or unenforceability, and the Purchase Order shall be construed and enforced as if the Purchase Order did not contain that particular provision to the extent of its invalidity or unenforceability.