Supplier Terms and Conditions

Terms and Conditions of Purchase

ARTICLE 1 – EXCLUSIVE TERMS. The materials, supplies or services covered by this order shall be furnished by Seller subject to all the terms and conditions set forth in this order including the following, which Seller, in accepting this order, agrees to be bound by and to comply with in all particulars and no other terms or conditions shall be binding upon the parties. Written acceptance or shipment of all or any portion of the materials or supplies (the “Goods”), or the performance of all or any portion of the services (the “Services”), covered by this order shall constitute unqualified acceptance of all its terms and conditions. This order expressly limits acceptance to the term of this offer and Buyer hereby objects to any different or additional terms contained in any response to this order. The terms of any proposal referred to in this order are included and made a part of this order only to the extent it specifies the Goods or Services ordered, the price therefore, and the delivery thereof, and then only to the extent that such terms are consistent with the terms and conditions of this order.  This order supersedes any prior communications, representations, promises, or negotiations, whether oral or written, regarding the subject matter of this order.

ARTICLE 2 – TIME OF PERFORMANCE. Time of performance of this order is of the essence.  Seller will provide a ship date of Goods to Buyer within 72 hours of the order being submitted to Seller.

ARTICLE 3 - INSPECTION. The Goods and Services furnished shall be exactly as specified in this order, free from all defects in Seller's performance, design, workmanship and materials, and shall be subject to inspection and test by Buyer at all times and places. If, prior to final acceptance, any Services and any Goods furnished therewith are found to be incomplete, or not as specified, Buyer may reject them, require Seller to correct them without charge, or require delivery of such Goods or Services at a reduction in price which is equitable under the circumstances. If Seller is unable or refuses to correct such items within a time deemed reasonable by Buyer, Buyer may terminate the order in whole or in part. Seller shall bear all risks as to rejected Goods or Services and, in addition to any costs for which Seller may become liable to Buyer under other provisions of this order, shall reimburse Buyer for all transportation costs, other related costs incurred, or payments to Seller in accordance with the terms of this order for unaccepted Goods or Services. Notwithstanding final acceptance and payment, Seller shall be liable for latent defects, fraud or such gross mistakes as amount to fraud.

ARTICLE 4 - CHANGES. Buyer may make changes within the general scope of this order in drawings and specifications for specially manufactured Goods, place of delivery, method of shipment or packing of the order by giving notice to Seller and subsequently confirming such changes in writing. If such changes affect the cost of or the time required for performance of this order, an equitable adjustment in the price or delivery or both shall be made. No change by Seller shall be allowed without written approval of Buyer. Any claim of Seller for an adjustment under this Article must be made in writing within ten (10) days from the date of receipt by Seller of notification of such change unless Buyer waives this condition in writing. Nothing in this Article shall excuse Seller from proceeding with performance of the order as changed hereunder.

ARTICLE 5 – TERMINATION. Buyer may cancel this order or any part thereof at any time upon written notice to Seller.  Buyer’s sole liability to Seller, and Seller’s sole and exclusive remedy, is payment for Goods or Services received and accepted by Buyer before the termination, and a sum reflecting the costs of time and materials attributable directly to work in process on behalf of Buyer at the time of termination, but such compensation shall not include loss of anticipated profits or any consequential loss.

ARTICLE 6 - TITLE. Title to any Goods purchased hereunder shall pass directly from Seller to Buyer FOB Buyer’s designated destination, subject to the right of Buyer to reject upon inspection, free and clear of any and all liens or other encumbrances.

ARTICLE 7 - PAYMENT, EXTRA CHARGES. Seller warrants that the prices, terms, conditions, warranties, and other benefits provided are and will be no less favorable than those provided to any other similar customer under similar circumstances. If Seller offers more favorable pricing or terms to any other similarly situated customer than are offered to Buyer, then Seller will concurrently extend that pricing and terms to Buyer, and this Agreement, at Buyer's option, will be deemed amended to provide that pricing and terms to Buyer. Any amounts charged to Buyer more than prices offered by Seller to any other similarly situated customer will promptly be refunded or credited to Buyer by Seller at Buyer's option.  Buyer shall pay Seller, upon submission of acceptable invoices, for Goods and Services delivered and accepted within 45 days of receipt of invoice.  All invoices shall include sales and similar taxes, which Seller shall remit to the applicable taxing authority. Buyer will not pay cartage, shipping, packaging or boxing expenses, unless specified in this order. Invoices must be accompanied by shipping documents or photocopies of such if transportation is payable and charged as a separate item.  Buyer or its affiliates may deduct any amount owing from Seller or its affiliates to Buyer or its affiliates as a set off against any amount owing to Seller under any purchase order.

ARTICLE 8 – INDEPENDENT CONTRACTOR. Seller will perform under this order as independent contractor to Buyer. Seller acknowledges Buyer has no employment relationship with, or right or duty to select or direct any of, Seller’s employees, subcontractors or other representatives.

ARTICLE 9 - INDEMNITY.

1. General. Seller shall defend, indemnify, and hold harmless Buyer, its customers, officers, employees, and agents, from and against all losses, expenses (including attorneys' fees), damages, and liabilities of any kind resulting from or arising out of this order and/or Seller's performance hereunder. Further, Seller shall fully indemnify, defend, and hold harmless Buyer and its customers from and against any and all claim, action, and liability, for injury, death, and property damage, arising out of the dispensing or use of any of Seller's product provided under Buyer orders. In addition to the liability imposed by law on the Seller for damage or injury (including death) to persons or property by reason of the negligence, willful acts or omissions, or strict liability of the Seller or its agents, which liability is not impaired or otherwise affected hereby, the Seller hereby assumes liability for and agrees to save Buyer and its customers harmless and indemnify it from every expense, liability or payment by reason of any damage or injury (including death) to persons or property suffered or claimed to have been suffered through any act or omission of the Seller or its employees or agents.
2. Proprietary Rights. Seller shall indemnify, defend, and hold harmless Buyer, its customers, officers, agents, and employees against all losses, damages, liabilities, costs, and expenses (including but not limited to attorneys' fees) resulting from any judgment or proceeding in which it is determined, or any settlement agreement arising out of the allegation, that Seller's furnishing or supplying Buyer with Goods, parts, components, programs, practices, or methods under this order or Buyer's or its customer’s use of such Goods, parts, components, programs, practices, or methods supplied by Seller under this order constitutes an infringement of any patent, copyright, trademark, trade name, trade secret, or other proprietary or contractual right of any third party. Seller shall not settle such suit or action without the consent of Buyer. Buyer retains the right to participate in the defense against any such suit or action.

ARTICLE 10 - DECLARED VALUATION OF SHIPMENTS. Except as otherwise provided on the face of this order, all shipments by Seller under this order for Buyer's account shall be made at the full replacement cost.

ARTICLE 11 - WARRANTY. Seller represents and warrants that at the time title passes to Buyer, and for the shelf life of the Goods, the Goods, and all parts: (i) are in full compliance with Buyer’s specifications; (ii) are safe and otherwise appropriate and fit for Buyer’s use; (iii) are of merchantable quality and free from latent and patent defects; and (iv) are in full compliance with all applicable laws. Seller represents and warrants that at the time of performance of Services, and continuously thereafter, the service will be: (i) in full compliance with Buyer’s specifications; (ii) done in a competent, workmanlike manner and free from defects in materials and workmanship, whether latent or patent; (iii) in conformity with the standards of care employed by leading vendors in the services industry for similar projects; and (iv) in full compliance with all applicable laws. Seller agrees that the Goods or Services furnished under this order shall be covered by the most favorable commercial warranties the Seller gives to any customer for the same or substantially similar goods or services, or such other more favorable warranties as specified in this order. The rights and remedies so provided are in addition to and do not limit any rights afforded to Buyer by any other article of this order. Such warranties will be effective notwithstanding prior inspection and/or acceptance of the Goods or Services by Buyer.

ARTICLE 12 - ASSIGNMENT AND SUBCONTRACTING. This order is assignable by Buyer. This order may not be assigned or subcontracted by Seller.

ARTICLE 13 – INSURANCE.  Seller will maintain and carry liability insurance which includes, but is not limited to, workers compensation and commercial general liability (including product liability) in commercially reasonable amounts, but in no event less than $3,000,000 per occurrence and in the aggregate. Such insurance will include Buyer as additional insured in connection with Seller’s performance under this order to be stated explicitly on the Certificate(s) of Insurance. Seller hereby irrevocably and unconditionally waives and will cause its insurers to irrevocably and unconditionally waive any rights of subrogation for claims against Buyer, to be documented to Buyer’s satisfaction. Seller will, at Buyer’s request, provide Buyer with a copy of the insurance certificates evidencing its compliance with these requirements.

ARTICLE 14 – COMPLIANCE WITH LAW. Seller agrees to procure all necessary permits or licenses and abide by all applicable laws, regulations and ordinances of the United States and of the applicable state, territory and political subdivision. Seller shall be liable for all damages and shall indemnify and save Buyer and its customers harmless from and against all damages and liability which may arise out of failure of Seller to secure and pay for any such licenses or permits or to comply fully with any and all applicable laws, ordinances and regulations.

ARTICLE 15 – REMEDIES; WAIVER OF DEFAULT. The remedies herein reserved shall be cumulative and in addition to any other or further remedies provided in law or equity. No waiver of a breach of any provision of this order shall constitute a waiver of any other breach, or of such provision on the future occasion.

ARTICLE 16 - OTHER APPLICABLE LAWS. Any provision required to be included in a contract of this type by any applicable and valid federal, state or local law, ordinance, rule or regulations shall be deemed to be incorporated herein.

ARTICLE 17 - GOVERNING LAW. The law of the State of Ohio shall control this order.  Any dispute shall be adjudicated in the United States District Court for the Southern District of Ohio or the Circuit Court of the County of Hamilton.

ARTICLE 18 – CONFIDENTIALITY; NON-SOLICITATION. All specifications, data and other information furnished by Buyer, or its agents, or confidential information about Buyer or its customers learned by Seller in connection with this order will remain the exclusive intellectual property of Buyer or its customer and shall be treated by the Seller as proprietary and shall not be disclosed or used, outside the limitation of this order, without prior written approval of Buyer.  For a period of two years after expiration or termination of this order, Seller shall not solicit any customer of Buyer or its affiliates, or any such customer’s customers or vendors, directly or indirectly, for any supplies, or services of the type offered by Buyer, or sell supplies or perform services for such parties, directly or indirectly through a third party where (a) the availability of or need for such supplies or services first became known to Seller as a result of the efforts of Buyer or its affiliates, or (b) where any supplies or services for such customer, customer’s customer or vendor were first requested from Seller by Buyer or its affiliates.

ARTICLE 19 – AUDIT. Buyer may, on reasonable notice to Seller, audit Seller's books, ledgers, supporting records/documentation and related procedures and controls, relating to any charges paid by Buyer in connection with this order.

ARTICLE 20 – SURVIVAL. Any term of this order which must survive for the parties to receive the benefit of this order, will survive the expiration or termination of this order.

Eff. 3.9.23