PURCHASE ORDER TERMS AND CONDITIONS - ATTACHMENT “A”

PURCHASE ORDER TERMS AND CONDITIONS - ATTACHMENT “A”
PURCHASE ORDER TERMS AND CONDITIONS - ATTACHMENT “A”
Acceptance - Agreement Seller’s commencement of work on the goods subject to this purchase
order or shipment of such goods, whichever occurs first, shall be deemed an effective mode of
acceptance of this purchase order. Any acceptance of this purchase order is limited to acceptance
of the express terms contained on the face and back hereof. Any proposal for additional or
different terms or any attempt by Seller to vary in any degree any of the terms of this offer in
Seller’s acceptance is hereby objected to and rejected, but such proposals shall not operate as a
rejection of this offer unless such variances are in the terms of the description, quantity, price or
delivery schedule of the goods, but shall be deemed a material alteration thereof, and this offer
shall be deemed accepted by Seller without said additional or different terms. If this purchase
order shall be deemed an acceptance of a prior offer by Seller, such acceptance is limited to the
express terms contained on the face and on the back hereof. Additional or different terms or any
attempt by Seller to vary in any degree any of the terms of this purchase order shall be deemed
material and are objected to and rejected, but this purchase order shall not operate as a rejection of
the Seller’s offer unless it contains variances in the terms of the description, quantity, price or
delivery schedule of the goods.
Termination for Convenience of Purchaser Purchaser reserves the right to terminate this order
or any part hereof for its sole convenience. In the event of such termination, Seller shall
immediately stop all work hereunder, and shall immediately cause any of its suppliers or
subcontractors to cease such work. Seller shall be paid a reasonable termination charge consisting
of a percentage of the order price reflecting the percentage of the work performed prior to the notice
of termination, plus actual direct costs resulting from termination. Seller shall not be paid for any
work done after receipt of the notice of termination, nor for any costs incurred by Seller’s
suppliers or subcontractors which Seller could reasonably have avoided. Seller shall not
unreasonably anticipate the requirements of this order.
Termination for Cause Purchaser may also terminate this order or any part hereof for cause in
the event of any default by the vendor, or if the vendor fails to comply with any of the terms and
conditions of this offer. Late deliveries, deliveries of products which are defective or which do not
conform to this order, and failure to provide Purchaser, upon request, with adequate assurances of
future performance shall all be causes allowing Purchaser to terminate this order for cause. In the
event of termination for cause, Purchaser shall not be liable to Seller for any amount, and Seller
shall be liable to Purchaser for any and all damages sustained by reason of the default which gave
rise to the termination. If it should be determined that Buyer has improperly terminated this
contract for default, such termination shall be deemed a termination for convenience.
Proprietary Information - Confidentiality - Advertising Seller shall consider all information
furnished by Purchaser to be confidential and shall not disclose any such information to any other
person, or use such information itself for any purpose other than performing this contract, unless
Seller obtains written permission from Purchaser to do so. This paragraph shall apply to drawings,
specifications, or other documents prepared by Seller for Purchaser in connection with this order.
Seller shall not advertise or publish the fact that Purchaser has contracted to purchase goods from
Seller, nor shall any information relating to the order be disclosed without Purchaser’s written
permission. Unless otherwise agreed in writing, no commercial, financial or technical information
disclosed in any manner or at any time by Seller to Purchaser shall be deemed secret or confidential
and Seller shall have no rights against Purchaser with respect thereto except such rights as may
exist under patent laws. Seller recognizes that Purchaser’s employees have no authority to accept
any information in confidence.
Warranty
Seller expressly warrants that all goods or services furnished under this agreement
shall conform to all specifications and appropriate standards, will be new, and will be free from
defects in material or workmanship. Seller warrants that all such goods or services will conform to
any statements made on the containers or labels or advertisements for such goods, or services, and
that any goods will be adequately contained, packaged, marked and labeled. Seller warrants that all
goods or services furnished hereunder will be merchantable, and will be safe and appropriate for
the purpose for which goods or services of that kind are normally used. If Seller knows or has
reason to know the particular purpose for which Purchaser intends to use the goods or services,
Seller warrants that such goods or services will be fit for such particular purpose. Seller warrants
that goods or services furnished will conform in all respect to samples. Inspection, test, acceptance
or use of the goods or services furnished hereunder shall not affect the Seller’s obligation under this
warranty, and such warranties shall survive inspection, test, acceptance and use. Seller’s warranty
shall run to Purchaser, its successors, assigns and customers, and users of products sold by
Purchaser. Seller agrees to replace or correct defects of any goods or services not conforming to the
foregoing warranty promptly, without expense to Purchaser, when notified of such nonconformity
by purchaser, provided Purchaser elects to provide Seller with the opportunity to do so. In the
event of failure of Seller to correct defects in or replace nonconforming goods or services promptly,
Purchaser, after reasonable notice to Seller, may make such corrections or replace such goods and
services and charge Seller for the cost incurred by Purchaser in doing so. Seller recognizes that
Purchaser’s production requirements may require immediate repairs or reworking of defective
goods, without notice to the Seller. In such event, Seller shall reimburse Purchaser for the costs,
delays or other damages which Purchaser has incurred.
Price Warranty Seller warrants that the prices for the articles sold Purchaser hereunder are not
less favorable than those currently extended to any other customer for the same or similar articles in
similar quantities. 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
Purchaser’s express written consent. Such additional charges include, but are not limited to,
shipping, packaging, labeling, custom duties, taxes, storage, insurance, boxing, crating.
Force Majeure
Purchaser may delay delivery or acceptance occasioned by causes beyond its
control. Seller shall hold such goods at the direction of the Purchaser and shall deliver them when
the cause affecting the delay has been removed. Purchaser shall be responsible only for Seller’s
direct additional cost in holding the goods or delaying performance of this agreement at
Purchaser’s
Thermo Products, LLC
P.O. Box 217
request. Seller shall also be excused if delivery is delayed by the occurrence of unforeseen and
unforeseeable events, provided Seller notifies Purchaser of such events as soon as they occur, and
gives Purchaser its best estimate of revised delivery dates. If any delay exceeds 30 days from the
original delivery date, Buyer may cancel this order without any liability. If Seller’s production
is only partially restricted or delayed, it shall use its best efforts to accommodate the
requirements of Buyer, including giving this order preference and priority over those of other
customers which were placed after this order.
Patents
Seller agrees upon receipt of notification to promptly assume full responsibility for
defense of any suit or proceeding which may be brought against Purchaser or its agents,
customers, or other vendors for alleged patent infringement, as well as for any alleged unfair
competition resulting from similarity in design, trademark or appearance of goods or services
furnished hereunder, and Seller further agrees to indemnify Purchaser, its agents and customers
against any and all expenses, losses, royalties, profits and damages including court costs and
attorney’s fees resulting from any such suit or proceeding, including any settlement. Purchaser
may be represented by and actively participate through its own counsel in any such suit or
proceeding if it so desires, and the costs of such representation shall be paid by Seller.
Insurance In the event that Seller’s obligations hereunder require or contemplate performance
of services by Seller’s employees, or persons under contract to Seller, to be done on Purchaser’s
property, or property of Purchaser’s customers, the Seller agrees that all such work shall be done
as an independent contractor and that the persons doing such work shall not be considered
employees of the Purchaser. Seller shall maintain all necessary insurance coverages, including
public liability and Workers’ Compensation insurance. Seller shall indemnify and save harmless
and defend Purchaser from any and all claims or liabilities arising out of the work covered by this
paragraph.
Indemnification
Seller shall defend, indemnify and hold harmless Purchaser 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.
Changes Purchaser shall have the right at any time to make changes in drawings, designs,
specifications, materials, packaging, time and place of delivery and method of transportation. If
any such changes cause an increase or decrease in the cost, or the time required for the
performance, an equitable adjustment shall be made and this agreement shall be modified in
writing accordingly. Seller agrees to accept any such changes subject to this paragraph.
Inspection/Testing Payment for the goods delivered hereunder shall not constitute acceptance
thereof. Purchaser shall have the right to inspect such goods and to reject any or all of said goods
which are in Purchaser’s judgment defective or nonconforming. Goods rejected and goods
supplied in excess of quantities called for herein may be returned to Seller at its expense and in
addition to Purchaser’s other rights, Purchaser may charge Seller all expenses of unpacking,
examining, repacking and reshipping such goods. In the event Purchaser receives goods whose
defects or nonconformity is not apparent on examination, Purchaser reserves the right to require
replacement, as well as payment of damages. Nothing contained in this purchase order shall
relieve in any way the Seller from the obligation of testing, inspection and quality control.
Entire Agreement This purchase order, and any documents referred to on the face hereof,
constitute the entire agreement between the parties.
Assignments and Subcontracting
No part of this order may be assigned or subcontracted
without the prior written approval of Purchaser.
Setoff All claims for money due or to become due from Purchaser shall be subject to deduction
or setoff by the Purchaser by reason of any counterclaim arising out of this or any other
transaction with Seller.
Shipment If in order to comply with Purchaser’s required delivery date it becomes necessary
for Seller to ship by a more expensive way than specified in this purchase order, any increased
transportation costs resulting therefrom shall be paid for by Seller unless the necessity for such
rerouting or expedited handling has been caused by Purchaser. Vendor shall bear all risk of loss
of all merchandise covered by this order until such merchandise has been delivered to the
designated location.
Waiver Purchaser’s failure to insist on performance of any of the terms or conditions herein or
to exercise any right or privilege or Purchaser’s waiver of any breach hereunder shall not
thereafter waive any other terms, conditions, or privileges, whether of the same or similar type.
Delivery Time is of the essence of this contract, and if delivery of items or rendering of services
is not completed by the time promised, Purchaser reserves the right without liability in addition
to its other rights and remedies to terminate this contract by notice effective when received by
Seller as to items not yet shipped or services not yet rendered and to purchase substitute items or
services elsewhere and charge Seller with any loss incurred.
Limitation on Purchaser’s Liability - Statute of Limitations In no event shall Purchaser be
liable for anticipated profits or for incidental or consequential damages. Purchaser’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. Purchaser shall
not be liable for penalties of any description. Any action resulting from any breach on the part of
Purchaser as to the goods or services delivered hereunder must be commenced within one year
after the cause of action has accrued.
5235 West State Road 10
North Judson, IN 46366
800-248-5130
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