Terms and Conditions of Purchase
- Definitions. Whenever used herein, the word “Buyer” means Frank Winne & Son Inc., and the word “Seller” means the party selling the Goods purchased by Buyer. The term “Purchase Order,” “herein” and “hereto” refer to and include Buyer’s Purchase Order, these Terms and Conditions of Purchase, and any other documents expressly made a part of the Purchase Order by written agreement of Buyer and Seller. Any products covered by the Purchase Order are referred to herein as the “Goods”. The words “including” and “includes” are used without limitation.
- Acceptance of Buyer’s Terms and Conditions; Entire Agreement. Buyer’s offer to purchase is expressly limited to Seller’s acceptance of the terms and conditions of Buyer’s offer. Seller acknowledges acceptance of these Terms and Conditions of Purchase by delivery of the Goods. No terms or conditions at variance with, or in addition to, those contained herein shall be applicable to the Purchase Order, unless expressly agreed to in writing by Buyer and Seller. All agreements, negotiations, and understandings of the parties, and the parties’ course of dealing, usages of trade and course of performance, prior to the date of the Purchase Order, whether written or oral, are superseded hereby. No modification of the provisions of the Purchase Order shall result from Buyer’s acceptance of the Goods, or receipt from Seller of an invoice or acceptance or other form containing terms and conditions in addition to, or differing from, the terms and conditions hereof. In the event of a conflict between the terms and conditions of the Purchase Order and any terms and conditions of Seller, including any purchase order acknowledgement of Seller, the parties agree that these Terms and Conditions of Purchase shall control and take precedence. Any additional or different terms and conditions are hereby rejected and shall not be deemed a part of the contract between the parties.
- Changes to Purchase Order. Buyer shall have the right to make changes to the Purchase Order. Should any change affect the prices or delivery terms contained in the Purchase Order, Seller shall, before proceeding, notify Buyer of any price changes or changes in delivery terms, and receive Buyer’s written agreement thereto. No amendment or supplement to the Purchase Order shall be effective unless agreed to by Buyer in writing (which may be in electronic form). All costs in returning over shipped items and any related storage charges will be at Seller’s expense.
- Delivery and Default. Buyer may, at its election, by delivery to Seller of written notice, terminate the Purchase Order or any part hereof (a) if Seller fails to deliver the Goods in accordance with any delivery or performance dates specified herein, or (b) if Seller fails to comply with any other provision of the Purchase Order and does not cure such failure within a period of ten (10) days or such longer period as Buyer may authorize in writing, or (c) upon the occurrence of any of the following: the voluntary or involuntary liquidation or dissolution of Seller, the sale or other disposition of all or substantially all of the assets of Seller, or the marshalling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, or reorganization, arrangement, composition or readjustment of Seller, or other similar proceeding affecting Seller or any of its assets, or any action taken by a trustee or receiver or by any court in any such proceeding, or the disaffirmance, rejection or postponement in any such proceeding of any of Seller’s obligations pursuant to the Purchase Order. In the event of any termination for the reasons described in (a), (b) or (c) above, Seller shall be liable to Buyer for all loss or damage suffered or incurred by Buyer arising from or relating to such termination. Seller shall not be so liable for the failure to deliver the Goods in accordance with delivery dates when such failure is due to causes beyond the control and without the fault or negligence of Seller, and Seller has notified Buyer (which may be in electronic form) within forty-eight hours of the commencement of the occurrence that caused such failure.
- Late Delivery of Goods. In delivering the Goods, time is of the essence. Failure to deliver the Goods within the time stated in the Purchase Order shall constitute a material breach. Seller shall notify Buyer as soon as Seller becomes aware that Seller cannot meet the delivery date specified in the Purchase Order, and shall propose a new delivery date. In the event of such delay, without prejudice to Buyer’s other rights and remedies hereunder: (a) Buyer reserves the right to instruct Seller to take any practicable action to remedy any delay in delivery; (b) Buyer shall have the right to claim from Seller by way of liquidated damages, one percent (1%) of the price per week or part thereof, for each week, or part thereof, such Goods are delayed, with a maximum of ten percent (10%); (c) Buyer may terminate the Purchase Order or reject the Goods, without any liability whatsoever to Seller; or (d) Buyer may purchase replacements for the Goods from others, and Buyer shall be liable for the actual and reasonable costs and damages Buyer incurs. Seller shall, at no additional cost to Buyer, use accelerated measures such as material expediting fees, premium transportation costs, and labor overtime to ensure that the Goods are delivered on or before the delivery date.
- Nonconforming Goods. All Goods shall be subject to Buyer’s inspection upon delivery to Buyer’s location, notwithstanding prior payment or the provisions of any document executed prior to such inspection. Goods rejected as nonconforming and not accepted will be held for Seller’s instruction, at Seller’s risk of loss. Any Goods not in compliance with any specifications or other requirements of the Purchase Order are subject to rejection by Buyer, and any such Goods may be returned to Seller at Seller’s expense. Any payments for Goods made prior to acceptance shall not constitute an acceptance of such Goods or impair any remedies of Buyer.
- Title and Risk of Loss. All Goods will be shipped FOB destination (with shipping costs and insurance paid by Seller), unless otherwise stated in the Purchase Order. Title to and the risk of loss of all Goods will remain with Seller until the Goods are delivered to such destination, unless otherwise stated in the Purchase Order. All Goods must be suitably packed, marked, and shipped in accordance with Buyer’s requirements. No charge shall be made by Seller for packing, boxing, drayage, or storage, unless stated in the Purchase Order.
- Payment. Invoices dated prior to delivery of any Goods will not be accepted. Payment terms shall be as set forth in the Purchase Order. Buyer may withhold any payment due hereunder to such extent necessary to protect Buyer from loss because of a reasonable doubt (a) that the Goods will meet the requirements of the Purchase Order, or (b) that the Goods will be delivered or completed on the date or dates specified in the Purchase Order. Upon the submission of proper invoices, Seller shall be paid the prices set forth for all Goods delivered and accepted, less deductions, if any. In connection with any discount offered, time will be computed from the date of delivery at destination or from the date a proper invoice is received, whichever is later.
- Limited Warranties. Seller represents and warrants that the Goods (a) will be new, unless otherwise specified in the Purchase Order, (b) will conform to any specifications, drawings, samples or other descriptions furnished to Seller or specified by Buyer, and (c) will be free from any defects in design, workmanship, and materials for a period of twelve months from the date of initial use by the end user. Any repair or replacement Goods or correction to workmanship or materials shall be additionally warranted for a period of one year from the date the defect is remedied. Any repair or replacement Goods or other materials or corrections provided pursuant to the warranty shall be shipped FOB Buyer’s plant (or other destination specified by Buyer) at Seller’s expense. Seller also warrants that title to all Goods will be free and clear of all liens, claims, and encumbrances, of any nature and kind. The foregoing warranties shall survive delivery, inspection, acceptance, and payment and shall extend to and be for the benefit of Seller’s customers and subsequent end users as intended third party beneficiaries. The warranties expressed herein are in addition to any other warranties provided at law.
- Limited Remedies. In the event Buyer gives notice to Seller of any defect in design, workmanship, or materials of the Goods within twelve months from the date of initial use by the end user, Seller’s sole obligation and Buyer’s exclusive remedy shall be for Seller to repair or replace such Goods, or to correct such workmanship or materials, at the option of Buyer, at Seller’s expense, including the cost and expense of delivery of repaired or replacement Goods, and any other damages directly incurred by Buyer as a result of such breach.
- Compliance with Laws. Seller represents and warrants that all Goods delivered will comply with all applicable laws, rules, and regulations, including all environmental laws, rules, and regulations. Seller agrees to acquire and pay for all licenses and permits that may be required to comply with all applicable laws, rules and regulations of the proper public authorities in connection with the manufacture and delivery of the Goods. Buyer and Buyer’s representatives shall be entitled to conduct audits from time to time at Seller’s facilities, with not less than five (5) days prior notice to Seller, including audits to determine Seller’s compliance with the foregoing warranties, quality systems audits, Goods specific audits and process audits, and compliance with laws, rules, and regulations. Seller agrees to indemnify Buyer and hold Buyer harmless from and against all fines, penalties, response and remedial costs, and other damages or injuries assessed against or costs incurred by Buyer resulting from any breach by Seller of any of the foregoing representations, warranties, and agreements.
- Disclaimer of Consequential Damages. Neither Buyer nor Seller shall be liable to the other for any consequential damages, including lost profits or lost business opportunities, arising under or in connection with these Terms and Conditions of Purchase and any Goods sold by Seller hereunder, even if advised of the possibility of such damages. This disclaimer shall not apply to indemnification obligations herein as to third party claims or in the case of a party’s gross negligence or willful misconduct. This provision may not be modified or rejected by any subsequent purchase or sales order term or condition.
- Cancellation or Termination by Buyer.
- Cancellation Due to Causes Beyond Buyer’s Control. Buyer may cancel the Purchase Order, in whole or in part, or defer acceptance of any Goods purchased hereunder by written notice to Seller (which may be in electronic form), in the event of a shutdown of any of Buyer’s plants or a substantial reduction in the operation of Buyer’s plant due to strikes, floods, riots, accidents, acts or failures to act of any governmental entity, major equipment breakdowns, or any other causes whatsoever, provided that any such cause was beyond the reasonable control of Buyer. In the event of such a cancellation or deferral, Buyer agrees to negotiate in good faith, as Seller’s sole and exclusive remedy, a reasonable cancellation or deferral charge, which charge shall in no event exceed the actual damages incurred by Seller as a direct result of the cancellation or deferral.
- Cancellation for Convenience of Buyer. Buyer may also cancel the Purchase Order, in whole or in part, for its convenience, by written notice to Seller. Immediately upon receipt of notice of such cancellation, Seller shall stop all performance hereunder except as otherwise directed by Buyer. If Seller is not in default of any of its obligations hereunder at the time of such termination, Buyer agrees to negotiate in good faith a reasonable compensation not to exceed an amount equal to those reasonable and documented costs incurred by Seller prior to termination, provided, however, that such amount, plus any prior payments, shall in no event exceed the purchase price of the Goods. All Goods completed or partially completed prior to termination shall become property of Buyer, or at Buyer’s option, the salvage value of the Goods may be deducted from the amount due Seller by reason of the termination. Notwithstanding the foregoing, where Buyer provides Seller with notice of cancellation of a Purchase Order at least thirty (30) days prior to the scheduled delivery date, Buyer shall have no liability or obligations to Seller whatsoever. Buyer may, without liability on five (5) days’ notice (or greater), reschedule any delivery date to a later date. Seller shall not, without Buyer’s prior written consent, commence manufacture, or procurement of parts for, the Goods in advance of Seller’s normal lead time for such Goods.
- Termination by Buyer for Seller Bankruptcy. In the event of a voluntary or involuntary bankruptcy, receivership, insolvency or reorganization proceedings involving Seller or its property, or the assignment of all or substantially all of the assets of Seller for the benefit of creditors, Buyer may terminate the Purchase Order by giving written notice of termination, which shall become effective upon the date set forth in the notice.
- Termination by Buyer for Cause. In the event of a material breach by Buyer of any term or condition of the Purchase Order, and such breach continues uncured for ten (10) days after written notice (which may be an electronic notice) thereof by Buyer, then Buyer may terminate the Purchase Order by giving written notice (which may be an electronic notice) of termination, which shall become effective upon the date set forth in the notice.
- Intellectual Property Infringement Indemnity. Seller hereby agrees to indemnify and hold harmless Buyer and Buyer’s successors and assigns, and its and their directors, officers, employees, agents and contractors, and Buyer’s customers and users of Buyer’s products, from and against any and all liabilities, actions, claims, demands, suit, losses, damages, penalties, costs and expenses (including court costs and reasonable attorneys’ fees and expenses) relating to any infringement or claimed infringement of any patent, copyright, trade secret, trademark or other intellectual property rights of any person or entity arising from the purchase or use of the Goods. Buyer shall giver Seller reasonable notice of any such action, claim, demand or suit known to Buyer, and Seller agrees to undertake, at its own expense, the defense of any such action, claim, demand or suit upon demand by Buyer. In addition, upon notification by Buyer of an infringement action, claim, demand or suit, Seller covenants and agrees to do one of the following: (a) procure for Buyer the right to continue using the Goods on a permanent basis, without cost to Buyer and without any restrictions on the right of Buyer to use the Goods for the purpose for which they are intended, or (b) replace the Goods with non-infringing goods satisfactory to Buyer, or (c) modify the Goods in a manner satisfactory to Buyer so that they become non-infringing.
- Nonwavier of Remedies. The remedies of Buyer provided for herein shall be cumulative and shall be in addition to any other or further remedies provided in law or equity, except where expressly limited herein. No delay in the exercise of, or failure to exercise any right, remedy or power of Buyer shall be construed to be a waiver thereof, and such right, remedy or power may be exercised from time to time as often as may be deemed expedient by Buyer.
- General Indemnity. Seller hereby agrees to indemnify and hold harmless Buyer and Buyer’s successors and assigns, and its and their directors, officers, employees, agents and contractors, and customers of Buyer and users of Buyer’s products, from and against any and all liabilities, actions, claims, demands, suits, losses, damages, penalties, costs and expenses (including court costs and reasonable attorneys’ fees and expenses) for damage to property of Buyer or others of whatsoever kind or nature, and injury to persons (including death), arising from or relating to the delivery or use of the Goods, or to the negligent, willful, or wanton, acts or omissions of Seller, and its directors, officers, employees, agents or contractors, and whether or not caused in whole or in part by any acts or omissions of Buyer or any of its directors, officers, employees,agents or contractors, or any other person or entity.
- Inspection and Acceptance. If the Purchase Order involves manufacture of the Goods, Seller shall provide all shop inspections required to insure compliance with the Purchase Order, and Buyer shall have the right at all reasonable times to inspect and test all work in process. Neither the presence nor the absence of an inspector or other personnel of Buyer in Seller’s facility shall relieve Seller of any requirements of the Purchase Order. Seller must submit monthly progress reports (or more frequently if delivery requirements make it necessary) until final inspection and acceptance of the Goods by Buyer.
- Insurance. Seller shall, at its own expense, maintain in effect commercial general liability insurance maintained on an occurrence basis covering bodily injury, death, and property damage arising from or relating to any Goods purchased by Buyer hereunder, with minimum coverage of One Million Dollars ($1,000,000) per occurrence and Three Million Dollars ($3,000,000) in the aggregate. Upon request, Seller shall provide a certificate of insurance evidencing such coverage.
- Prohibition on Assignment. Seller shall not assign or otherwise transfer the Purchase Order without the prior written consent of Buyer. Any attempted assignment or transfer without Buyer’s prior written consent shall be void, and shall constitute a material breach of the Purchase Order.
- Controlling Law. The Purchase Order, including these Terms and Conditions of Purchase, shall be governed by and interpreted in accordance with the laws of the State of New Jersey, without regard to New Jersey conflicts of laws principles.
Customer will be responsible to pay the full P.O. price if Products are sold in response to a P.O. cancelled by Customer (without Frank Winne’s fault). Rejection of alleged nonconforming Products must be made in writing 30 days after delivery for non-conformities reasonably discoverable on inspection, and three (3) months after delivery for latent non conformities; after that time Products will be deemed accepted and not subject to revocation of acceptance. Customer will give Frank Winne reasonable opportunity to examine and test Products that are the basis for any claim. As a condition for replacement, refund or credit, Frank Winne may request the return of alleged nonconforming Products in the same condition as when received, except such part as cannot be returned due to necessary testing. On request, Customer shall also return, if possible, tested Products. No claim against Frank Winne shall be made or allowed for Products returned without Frank Winne’s prior written consent. All claims for loss or damage during transit must be made against the carrier and by notation on freight bill or delivery receipt. All returns of other than nonconforming Products must be: (i) approved in advance by Frank Winne; (ii) of Products in new condition and not printed or special; (iii) made within 90 days; (iv) shipped at Customer’s expense; and (v) accompanied by or subject to a twenty-five percent (25%) restocking charge. Credits (other than those for overpayments) expire 180 days after issuance.
Warranty and Limitation of Claims
The products sold hereunder shall be of merchantable quality and shall confirm to Seller’s standard specification. Defective or non-conforming products shall be replaced by seller without any additional charge, or in lieu thereof, if seller elects, seller may upon return of the products at Seller’s expense refund the purchase price. Seller’s liability for any loss or claim whatsoever, including claim for breach of warranty of merchantability, shall be limited solely and exclusively to replacement of defective or non-conforming products or, at the election of seller, to return of the products and repayment of the price in no event shall seller be liable for any special, incidental, consequential or exemplary damages. There are no warranties which extend beyond the description of the product on the face hereof, and seller makes no warranty, express or implied, of fitness for particular use or otherwise, and buyer assumes all risk whatever as to the result of the use of the products purchased, whether used singly or in combination with other substances or products.