1. AGREEMENT. The agreement (the "Purchase Agreement") Buyer (Mennie Machine Company) and Seller with respect to the purchase of goods (the "Goods") or performance of work or services shown on the face of this order shall consist of the terms appearing thereon and this side of this order, together with all specifications, drawings and data submitted to Seller herewith or identified on the face hereof. BUYER SHALL NOT BE BOUND BY ANY ADDITIONAL OR DIFFERENT TERMS APPEARING IN SELLER'S QUOTATION, PROPOSAL, ACKNOWLEDGMENT OR ANY OTHER FORMS OF COMMUNICATIONS FROM SELLER AND NO REFERENCE THERETO SHALL BE DEEMED TO INCORPORATE ANY TERM THEREOF UNLESS SUCH TERMS ARE MUTUALLY AGREED TO IN WRITING AND SIGNED BY BUYER AND SELLER. Acceptance of this order will occur upon Seller executing and returning to Buyer the acknowledgment copy hereof or in lieu thereof, shall be deemed accepted unless Buyer is notified by the Seller in writing to the contrary within 10 of receipt hereof..
2. PURCHASE PRICE AND PAYMENT. Prices shown on the face hereof shall not be subject to increase without the written consent of Buyer. If prices are not shown for any of the Goods or Services then prices to be charged by Seller shall not be higher than prices last quoted or charged to Buyer for the same or commercially similar Goods and Services, or at prevailing market price, whichever is lower, unless otherwise agreed in writing. Buyer shall pay for the goods with its provided payment terms agreement after its acceptance of the goods. If a discount is allowed to Purchaser for payment within an agreed upon period, the period for the cash discount as shown on the face hereof shall extend from the date of receipt of the invoice by Buyer or from the date of receipt by Buyer of any corrected invoice, whichever is later. Prices include all costs and charges for crating, wrapping, and packaging and all other expenses of Seller's performance of the Purchase Agreement except as otherwise shown on the face thereof.
3. PRICE WARRANTY. Seller warrants that the prices for the articles sold to Buyer hereunder are not less favorable than those currently extended to their next best customer for the same or similar articles in similar qualities. In the event Seller reduces its price for such article during the term of this order, Seller agrees to reduce the prices hereof correspondingly. Seller warrants that prices shown on this purchase order shall be complete, and no additional charges of any type shall be added without Buyers express written consent. Such additional charges include, but are not limited to shipping, packaging, labeling, custom duties, taxes, storage, insurance, boxing, crating.
4. TAXES. Unless taxes are expressly shown with prices on the face hereof, Seller shall indemnify and hold harmless buyer against the assessment or imposition of any excise, use or other tax (however designated) upon the production, sale or delivery of Goods shipped hereunder or upon the performance of Services rendered hereunder, to the extent such assessments or impositions are required or not forbidden by law to be borne by Seller.
5. DELIVERY. Delivery of goods shall be F.O.B. at the location and on the date(s) specified on the face side hereof. Unless otherwise specified on the face side, the goods must be delivered in a single delivery and not in lots or installments. Detailed invoices shall be mailed at the time goods are shipped to Buyer. Separate packing slips must be included in each shipment showing order number, quantity, part number and description of goods therein. Time is of the essence of the Agreement. Seller shall not deliver any of the goods or perform any of the Services except at the time or dates indicated on the face hereof. No change in the scheduled delivery date or performance will be permitted without Buyer's prior written consent. No acceptance of goods or services after scheduled delivery date will waive Buyer's rights with respect to such late delivery, nor shall it be deemed a waiver of future compliance with the terms hereof. In the absence of designated times for delivery or performance Seller shall deliver or perform in accordance with such subsequent directions given by Buyer or otherwise as expeditiously as possible. Failure of Seller to deliver or perform in accordance with the times required thereof, as herein provided shall constitute a breach of the Purchase Agreement between Seller and Buyer. Late deliveries that result in delay of Buyer's production or consequent machine downtime shall be viewed as a breach of contract and will result in a charge of $250 per incident. This charge will be deducted from the Seller's invoice after notification in writing from the Buyer.
6. BREACH. In the event that Seller shall breach any of its obligations hereunder, Buyer may purchase a substitute Goods and Services, and Seller shall pay to Buyer the excess of the cost of such Goods and Services over the purchase price herein provided plus expenses incurred by the Buyer. Buyer may notify Seller that the delay will result in damages and deduct the damages from the sale price upon acceptance of the Goods. The remedy stated in this paragraph shall be in addition to, and not in lieu of, other remedies which Buyer may have under the Purchase Agreement or under applicable law and acceptance by Buyer of any payment by seller of amounts herein provided shall not be a waiver of Buyer's rights to recover against Seller any other amounts, damages, or losses occasioned by Seller's breach. Buyer may be required to accept replacements or substitutes or permit cure of defects in any Goods or Services rightfully rejected. Seller shall be liable for any actual, consequential or incidental damages relating to the breach.
7. QUANTITIES. Unless otherwise agreed in writing by Buyer, deliveries of Goods must be in the quantities stated on the face hereof. If Seller ships or delivers a quantity of Goods greater than or less than the quantity prescribed for each shipment, Buyer shall have the right at its election to reject the shipment in its entirety or to accept any part thereof and reject the remainder or to accept the entire shipment. In no event shall Buyer be responsible for any additional shipping or transportation charges resulting from shipments by Seller in less than specified quantities or from partial shipments.
8. REJECTION. Rejected goods may at the election of Buyer be returned to Seller at Seller's expense and risk or held at Seller's risk for Seller's instructions. Acceptance of a portion of the Goods shall not preclude subsequent rejection of the remainder in whole or in part. Any inspection of the Goods or Services by Buyer shall not constitute a waiver or acceptance as to any defects therein or breaches by Seller not actually discovered by Buyer pursuant to such inspection.
9. In addition to Seller's customary warranties and any other warranties implied in fact or by law, Seller warrants to the Buyer and to any third party ultimately using any item, whether such third party is a customer of Buyer or not, unless otherwise agreed in writing and signed by the parties, that the Goods delivered and Services performed and pursuant to this Agreement shall conform to all descriptions and specifications and to samples furnished by the Buyer and shall be of high quality, free from defects, latent or patent, in design, material and workmanship, and fit for intended purposes. SELLER'S WARRANTY SHALL EXTEND FOR A PERIOD OF 12 MONTHS AFTER THE ITEM IS DELIVERED AND ACCEPTED BY BUYER, AND APPLIED TO ITS INTENDED USE. Where Buyer incorporates that item into a product of Buyer to be delivered to its customer, Seller's obligation under this clause shall be for the benefit of Buyer's customer and shall extend to one year after application of the item to its intended use.
10. DEFECTIVE GOODS. If any of the goods fail to meet warranties contained in paragraph 9, Seller, upon notice from Buyer, shall promptly correct or replace after acceptance the same at Seller's expense. If Seller fails to do so, Buyer may cancel this order as to all such Goods and in addition, may cancel the remaining balance of the order. After notice to Seller, all such Goods will be held at Seller's risk and all transportation charges both to and from the original destination, shall be paid by Seller. Any payment such Goods shall be refunded by Seller unless Seller promptly corrects or replaces the same at its expense.
11. FORCE MAJEURE. Buyer may delay delivery or acceptance occasioned by causes beyond its control. Seller shall hold such goods at the direction of the Buyer and shall deliver them when the cause affecting the delay has been removed. Buyer shall be responsible only for Seller's direct additional costs in holding the goods or delaying performance of this Agreement at Buyer's request. Causes beyond Buyer's control shall include government action or failure of the government to act where such action is required, strike or other labor trouble, fire, or usually severe weather.
12. INDEMNIFICATION. Seller shall defend, indemnify and hold harmless Buyer against all damages, claims or liabilities and expenses (including attorney's fees) arising out of or resulting in any way from any defect in the goods or services purchased hereunder, or from any act or omission of Seller, its agents, employees or subcontractors. This indemnification shall be in addition to the warranty obligations of Seller and Seller agrees to provide Certificates of Insurance for such indemnity upon request.
13. RISK OF LOSS. Regardless of F.O.B. point, Seller agrees to bear all risk of loss, injury or destruction of goods and material ordered herein which occur prior to acceptance by Buyer. No such loss, injury, or destruction shall release Seller from obligations hereunder.
14. SHIPPING COST. All goods are to be shipped freight collect, F.O.B. shipping point, unless otherwise stated using a MMC recognized carrier. Where Buyer has so authorized in writing, goods may be shipped freight prepaid, but Seller shall prepay all shipping charges and route the goods by the carrier requested and list said charges as a separate item on Seller's invoice.
15. COMPLIANCE WITH LAW. Seller warrants that all applicable laws rule and regulation of government authority, including any applicable Executive Order mandating use of American materials covering the production, sale and delivery of Goods and the performance of Services under this Agreement shall be complied with.
16. CHANGES. Buyer may at any time cancel this Agreement with respect to any Goods not then delivered or Services not then performed if such cancellation shall be for other than breach of the Purchase Agreement by Seller. Buyer shall pay to Seller cancellation charges as may be agreed upon between Buyer and Seller, but in no event to exceed the lesser of the purchase price applicable to such cancelled Goods or Services or the labor material and manufacturing overhead cost actually incurred by Seller through the date of cancellation in the production of the Goods or performance of the Services, in each case, however, less the reasonable resale or salvage value of materials and work in process. Notwithstanding the foregoing, Buyer shall not be liable for cancellation charges if the Goods are standard or stock items of the Seller. Buyer may also issue additional instructions and make changes in connection with the Purchase Agreement in any one or more of the following: (i) designs or specifications; (ii) method of shipment or packaging, and (iii) time and destination of deliveries. If any such change results in an increase or decrease in the cost of performance by Seller the parties shall agree in writing upon an equitable adjustment in the purchase price. Any claim by Seller for adjustment under the preceding sentence shall be asserted in writing 15 days after receipt by Seller of notice of change. Seller shall perform in accordance with the change pending the assertion of any such claim and pending agreement upon any equitable adjustment.
17. PROPERTY FURNISHED TO SELLER BY BUYER INCLUDING DIES AND MOLDS. All dies, molds patterns, jigs, materials, suppliers and any other property furnished to Seller by Buyer, for use in the performance of the Purchase Agreement shall be and remain the property of Buyer, shall be subject to removal upon Buyer's instructions, shall be used only in filling orders form Buyer, shall be held at Seller's risk, and upon recall by Buyer shall be packaged at Seller's expense for shipment to Buyer in accordance with Buyer's instructions, and shall be kept insured by Seller at Seller's expense to the extent of their full insurable value. Evidence of insurance shall be furnished to Buyer on request comparable to the total value of material received. Unless Buyer and Seller agree in writing signed by both parties to other terms and conditions, any costs expended by Seller for dies, molds, or forms made in connection with this agreement, are included in the payments hereunder by Buyer and thereby are recovered by Seller through this agreement.
18. CONFIDENTIALITY. All descriptions, specifications, and samples, drawings, flow charts, data reports, photos, artwork, software, etc. furnished to Seller by Buyer shall be and remain the property of Buyer. Seller shall consider all information furnished by Buyer to be confidential and shall not disclose any such information to any other party or use such information for any purpose other that performing this agreement such items at Seller's expense, upon request of Buyer.
19. INFRINGEMENT. Seller warrants that the Goods shall be free of the rightful claim of any third person, by way of infringement of any U.S. or foreign letters patent or of any other proprietary information or know-how. Seller shall indemnify and hold harmless Buyer and its customers users of its products against all losses, liabilities, damages, costs and expenses (including attorneys' fees) incurred or arising in connection with any such infringement or claims thereof, and after notice, Seller shall appear and defend, at its own expense by counsel acceptable to Buyer, and suits based on any infringement or claim thereof. This warranty shall not extend to any compliance to designs or specifications furnished by Buyer.
20. SERVICES ON BUYER'S PREMISES. If the Services are to be performed on Buyer's premises, seller shall indemnify and hold harmless buyer against all losses, liabilities, damages, costs and expenses ( including attorneys' fees) caused by or arising out of the performance thereof, seller shall maintain public liability, property damage, and workers' compensation insurance with liability limits and other terms and conditions reasonably satisfactory to Buyer and upon Buyer's request shall furnish copies of policies or certificates evidencing such insurance, Buyer shall have no obligation to pay for any of the services until waivers of all applicable mechanic's liens have been delivered by buyer. The provisions of this paragraph shall also apply to any other party or subcontractor engaged by seller for the performance of the services.
21. EQUAL EMPLOYMENT CLAUSE. Unless exempt under the rules and regulations of the United States Secretary of Labor, the provisions of Executive Order 11246, the Vietnam Era Veterans Readjustment Assistance Act of 1974, the Rehabilitation Act of 1973, the Americans with Disability Act of 1990, and implementing regulations issued there under shall constitute a term of this purchase agreement and seller agrees to be bound thereby. At the request of the buyer, seller shall execute and deliver to buyer a written agreement and certificate embodying the Equal Opportunity Clause, a Certification of Nonsegregated Facilities and, if applicable, seller's written Affirmative Action Compliance Program and Standard Form 100 (EEO-1). The provisions of this paragraph shall also apply to other party of subcontractor engaged by seller for the production and sale of the goods or the performance of the services.
22. ASSIGNMENT. The Purchase Agreement shall be binding upon and shall insure to the benefit of Buyer and Seller and their respective successors and assigns. Seller shall not assign the Purchase Agreement or any interest there under, without buyer's prior written consent.
23. WAIVER. Buyer's failure to insist on performance of any of the terms or conditions herein or to exercise any right or privilege or Buyer's waiver of any breach hereunder shall not thereafter waive any other terms, conditions, or privileges, whether of the same or similar type.
24. SEVERABILITY. If any term, clause or provision contained in the sales contract is declared or held invalid by a court of competent jurisdiction, such declaration or holding shall not affect the validity of any other term, clause or provision herein contained.
25. LIMITATION ON BUYER'S LIABILITY - STATUE OF LIMITATIONS. In no event shall Buyer be liable for anticipated profits or for incidental or consequential damages. Buyer's liability on any claim of any kind for any loss or damage arising out of or in connection with or resulting from this Agreement or from the performance or breach thereof shall in no case exceed the price allocable to the goods or services or unit thereof which gives rise to the claim. Buyer shall not be liable for penalties of any description. ANY ACTION RESULTING FROM ANY BREACH ON THE PART OF BUYER AS TO THE GOODS OR SERVICES DELIVERED HEREUNDER MUST BE COMMENCED WITHIN ONE YEAR AFTER THE CAUSE OR ACTION HAS ACCURED.
26. GOVERNMENT LAW. The laws of the State of Illinois govern this agreement.
27. CLAIMS OR CONTROVERSIES. Any claim arising out of the Warranty and policy statement or any other claim whatsoever related to the subject matter of the agreement, shall be litigated in courts having status in Illinois, which Buyer and Seller agree is the most convenient forum for such purposes and Seller consents to service of process and submits to such jurisdiction. Seller hereby waives any right to transfer or change the venue of any litigation brought in accordance with this paragraph.
28. M.S.D.S LABELING-INCOMING. It is Seller's obligation under the O.S.H.A. Hazard Communication Standard to: (a) insure proper labeling on all containers Buyer receives; and (b) supply Buyer with updated Material Safety Data Sheets. This requirement is a condition of all purchase orders we issue. Buyer will consider Seller's failure to comply with this requirement as a basis for rejection of shipment.
29. TERMINATION FOR CONVENIENCE: The Buyer may terminate performance of work under this contract in whole or, from time to time, in part if the Buyer's purchasing manager determines that a termination is in its best interest. The Buyer's Purchasing Manager shall terminate by delivering to Seller a Notice of Termination specifying the extent of termination and the effective date.
After receipt of a Notice of Termination, and except as directed by the Buyer's Purchasing Manager, the Seller shall immediately proceed with the following obligations, regardless of any delay in determining or adjusting any amounts due under this clause:
(1) Stop work as specified in the notice.
(2) Place no further subcontracts or orders for materials, services, or facilities, Page 5 of except as necessary to complete the continued portion of the contract.
(3) Terminate all subcontracts to the extent they relate to the work terminated.
(4) As directed by the Buyer's Purchasing Manager, transfer title and deliver to the Buyer (i) the fabricated or unfabricated parts, work in process, completed work, supplies, and other material produced or acquired for the work terminated, and (ii) the completed or partially completed plans, drawings, information, and other property that, if the contract had been completed would be required to be furnished to the Buyer.
(5) Complete performance of the work not terminated.
(6) Take any action that may be necessary, or that the Buyer's Purchasing Manager my direct, for the protection and preservation of the property related to this contract that is in the possession of the Seller and in which Mennie Machine Company has or may acquire an interest.
If termination is for other than default of the Purchase Agreement by Seller, Buyer shall pay to Seller Cancellation charges as may be agreed between Buyer and Seller, buy in no event to exceed the lesser of the purchase price applicable to such canceled Goods or Services or the labor, material and manufacturing overhead costs actually incurred by Seller through the termination effective date , in each case, however, less the foregoing, Buyer shall not be liable for termination charges if the Goods are standard or stock items of the Seller.
30. DEFAULT. The Buyer may, by written notice of default to the Seller, terminate this contract in whole or part if the Seller fails to (i) Deliver the supplies within the time specified in this contract or any extension; (ii) Make progress, so as to endanger performance of this contract; or (iii) Perform any of the other provisions of this contract.
The Buyer's right to terminate this contract under subdivision (ii) and (iii) above, may be exercised if the Seller does not cure such failure within 10 days (or more if authorized in writing by the Buyer's Purchasing Manager) after receipt of the notice from the Buyer's Purchasing Manager specifying the failure.
If the Buyer terminates this contract in whole or in part, it may acquire, under the terms and in the manner the Buyer's Purchasing Manager considers appropriate, supplies similar to those terminated, and the Seller will be liable to the Buyer for any excess costs for those supplies. However, the Seller shall continue the work not terminated.