ND INDUSTRIES, INC. TERMS AND CONDITIONS OF SALE
- Background. ND Industries, Inc. (“ND”) develops, manufacturers, markets, sells and distributes various coatings and other products for the fastener and other industries, including bottled adhesive products that are user applied, as well as the equipment utilized to apply such coatings. The Buyer (as identified in the related quote or Purchase Order) is interested in purchasing from ND those goods and/or services as more fully described in the Buyer’s Purchase Order or ND’s quote, as applicable (the “Products and/or Services”). These Terms and Conditions shall be deemed incorporated into Buyer’s Purchase Order whether or not specifically referenced therein.
- Offer & Acceptance; Agreement. Buyer’s acceptance of ND’s quote and/or ND’s acceptance of Buyer’s written Purchase Order is limited to acceptance of the express terms and conditions contained herein. Once accepted, ND’s quote or Buyer’s Purchase Order, as the case may be, together with these Terms and Conditions, and any supplementary written information incorporated by reference herein, shall be the complete and exclusive statement of the parties’ agreement and supercedes any prior discussions, negotiations, agreements, and understandings. Any modifications proposed by Buyer are not part of the parties’ agreement in the absence of ND’s written acceptance thereof. Any terms or provisions in the Purchase Order which are in any way inconsistent with those herein shall be null and void and the Terms and Conditions herein shall control. The placing of a Purchase Order or the shipping of goods to ND to be processed shall constitute acceptance of the Terms and Conditions contained herein.
- Purchase Price And Payment Terms. The price quoted by ND for the Products and/or Services is in U.S. dollars for the quantity shown, less any taxes, freight, duty, and custom’s charges. The purchase price for the Products and/or Services shall be paid net thirty (30) days unless otherwise specified by ND in writing. If, in ND’s judgment, the financial condition of the Buyer at the time processed goods are ready for shipment does not justify the terms specified, ND reserves the right to change these terms or to require full payment or partial payment in advance. All sales are subject to the approval of ND’s credit department.
- Warranty. ND warrants the Products and/or Services to be free from defects in material and workmanship under normal and recommended use and that the Products and/or Services will conform to ND’s published specifications or, if applicable, Buyer’s specifications accepted by ND in a separate writing. ND’s obligation under this warranty shall be limited to providing replacement products to the extent of any defective Products and/or Services, or at ND’s election, to the repayment or crediting of Buyer with an amount equal to the purchase price of such defective Products and/or Services whether such claims are for breach of warranty, breach of contract, or negligence. This warranty shall extend for twelve (12) months from date of the original purchase by the original buyer only, and shall apply only to those goods which upon ND’s examination disclose to its satisfaction that the Products and/or Services in question were in fact defective. THIS WARRANTY IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES EXPRESSED OR IMPLIED INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE AND OF ALL OTHER OBLIGATIONS OR LIABILITIES ON ND’S PART. THIS WARRANTY SHALL NOT APPLY TO ANY PART WHICH HAS BEEN SUBJECT TO ACCIDENT, NEGLIGENCE, ALTERATION, ABUSE OR MISUSE OR WHICH IS DEFECTIVE. ND MAKES NO WARRANTY WHATSOEVER IN RESPECT TO ACCESSORIES OR PARTS OR CHEMICALS NOT SUPPLIED BY ND. Notwithstanding the foregoing, any parts purchased by ND from its vendors shall only carry the vendor’s specific warranty, to the extent transferable to Buyer. No representation or warranty, expressed or implied, made by any sales representative or other agent or representative of ND, which is not specifically set forth herein, shall be binding upon ND.
- Standards. Many countries have adopted laws relative to standardization and product certification applicable to various products, including equipment and products such as those produced by ND. ND warrants that its Products and/or Services are compliant with standards required under United States law, but it cannot and does not warrant conformity with the standardization and product certification requirements of any other country except to the extent set forth in a separate writing delivered to Buyer by ND.
- Inspection And Rejection. Final inspection of the Products and/or Services purchased pursuant to the terms hereof shall be at Buyer’s premises unless otherwise agreed in writing. The Products and/or Services (or parts) rejected as not conforming to the Purchase Order, or as otherwise defective, shall be returned at Buyer’s initial expense, including transportation and handling costs, but subject to reimbursement by ND upon confirmation of the defect claimed. Acceptance by Buyer of shipment of the Products and/or Services rendered by ND shall be deemed to have occurred no later than ten (10) days following receipt of such shipment by Buyer or Buyer’s customer, unless a timely rejection has been made by that date.
- Shipment And Delivery. Except as provided in Paragraph 6, above, as it relates to returned processed goods, shipment of the processed goods shall be F.O.B. ND’s place of business. Buyer shall be responsible for all delivery costs and shall bear the risk of any loss or damage in transit. Delivery dates, if specified by ND, are estimates only and are not guaranteed and are not binding on ND.
- Confidentiality And Non-Disclosure. Buyer recognizes that ND is the owner of certain confidential and proprietary information relating to the development and application of the Products and/or Services, which includes specifications, technological know-how and other types of information or data, including certain patents related thereto (the “Technical Information”). Buyer shall not, directly or indirectly, disclose, disseminate or otherwise publish to any third-party any of the Technical Information. Buyer shall protect from disclosure ND’s Technical Information to the same extent which Buyer seeks to protect its own Technical Information from disclosure (but in no event will Buyer exercise less than reasonable measures). The confidentiality obligations herein shall not apply to any Technical Information which (a) at the time of disclosure is in the public domain, (b) after disclosure becomes part of the public domain other than through a breach of a non-disclosure obligation, or (c) was received from a third-party who acquired such information through lawful means and without any breach of a non-disclosure obligation. Tooling and gages, if any, for which Buyer is invoiced shall remain property of ND unless otherwise indicated and shall be maintained by ND only as long as reasonable usage warrants, as determined by ND.
- Patents. ND shall indemnify and save Buyer harmless from any judgments for damages and their costs which may be rendered against Buyer in any suit brought against Buyer on account of the infringement of any United States patent by any goods supplied by ND hereunder, provided that Buyer promptly notifies ND of the commencement of any such suit and authorizes ND to settle or defend such suit as ND may see fit, and provided further that Buyer renders every reasonable assistance which ND may require in defending any such suit. This indemnity shall not apply if Buyer has furnished the specifications for the Products and/or Services, or if Buyer has altered or modified in any way such Products and/or Services. In that event, Buyer shall indemnify and hold ND harmless for any claim of patent infringement.
- Taxes. Buyer shall be responsible for all taxes, duties, assessments and other governmental charges related to the sale and shipment of the Products and/or Services; provided, however, ND shall be responsible for U.S. income taxes related to amounts received by ND in connection with its sale of the Products and/or Services.
- Termination. The Purchase Order and these Terms and Conditions may be terminated in any of the following ways:
- A. By mutual agreement of ND and Buyer;
- B. By ND, on thirty (30) days prior written notice, in the event that:
(i) Buyer breaches or otherwise fails to comply with any provision contained herein, and such breach is not cured within that time period;
(ii) ND reasonably believes that Buyer’s financial condition places it in a position of being unlikely to be able to meet its contractual obligations;
(iii) Buyer defaults under any other material contract to which it is a party; or
(iv) Buyer sells all or substantially all of its assets, a majority of its voting stock or merges with another entity.
- C. By Buyer, upon thirty (30) days prior written notice, in the event that:
(i) ND breaches or otherwise fails to comply with any provision contained herein, and such breach is not cured within that time period;
(ii) Buyer reasonably believes that ND’s financial condition places it in a position of being unlikely to be able to meet its contractual obligations;
(iii) ND defaults under any other material contract to which it is a party; or
(iv) ND sells all or substantially all of its assets, a majority of its voting stock or merges with another entity, unless ND is the surviving corporation in any such merger.
- Cancelation. All orders that have been accepted by ND are considered final and binding and may not be cancelled, altered or terminated by Buyer except upon terms and conditions acceptable to ND, in its sole discretion, or as permitted by Paragraph 11C of these Terms and Conditions. Notwithstanding the foregoing, purchase orders for “stock” replacement or additional parts only, may be cancelled by Buyer upon written notice to ND given at least five (5) days prior to the scheduled shipment date of such replacement or additional parts and upon payment by Buyer to ND of a cancellation/restocking fee in the amount of 25% of the purchase order amount. In no event may Buyer cancel any special or custom order. Any deposit or advance payment made by Buyer in connection with a cancelled purchase order may be applied by ND to such cancellation/restocking fee. In the event of a cancellation in accordance with this paragraph 12, Buyer shall include the purchase order number and purchase order date in its cancellation notice. All replacement or additional parts that are the subject of a cancelled purchase order shall remain the sole and exclusive property of ND.
- Currency. All payments shall be in U.S. currency. Payments not made within the time period required herein shall bear interest at the rate of one (1%) percent per month on the unpaid amount. In the event that ND finds it necessary to take action to collect any unpaid amounts, Buyer shall be responsible for all costs and attorney fees incurred by ND in connection therewith.
- Limitation Of Damages. ND shall not be liable for any special, incidental or consequential damages, losses or expenses directly or indirectly arising from the sale, inspection, handling or use of the goods or from the Products AND/OR SERVICES provided by ND or from any other cause relating thereto, and ND’s liability hereunder, in any case, is expressly limited to providing replacement Products AND/OR SERVICES for those Products AND/OR SERVICES not complying with the terms hereof or, at ND’s election, to the repayment or crediting of Buyer with an amount equal to the purchase price paid by Buyer for the non-complying Products AND/OR SERVICES. If Buyer brings any action at law or equity in connection with the Purchase Order or these Terms and Conditions, no cause of action by Buyer shall include a claim, nor may recovery be had against ND, for any punitive, incidental, special or consequential damages of any kind, including but not limited to, damages to property OR PERSONS (INCLUDING DEATH), for loss of use, loss of time, loss of profits or income, or otherwise. ND’s liability shall be specifically limited as provided herein.
- Labeling. If Buyer purchases from ND bottled products for resale by Buyer and to which Buyer, directly or indirectly, is to apply its own label (or its content), Buyer shall ensure that the label contains the content and form as specified by ND in writing, and as may be supplemented or amended by ND from time to time. In the event Buyer shall fail to comply with this paragraph, or any other provision of the Purchase Order or these Terms and Conditions, or shall otherwise fail to comply with any labeling requirements existing as a matter of law, Buyer shall defend, indemnify and hold ND harmless from all costs, expenses, liability, damages, fines, penalties, judgments or losses arising with respect thereto.
- Trademark Usage. ND’s guidelines on trademark and logo usage must be followed in order to maintain brand integrity. Requiring consistent use of the trademarks and logos in all graphic (print, electronic, etc.) applications will help to maintain the prestige of the brand and will assist in maintaining and growing customer and brand awareness. Subject to this Paragraph, Buyer may use the trademarks, tradenames, logos and designations used by ND for its Products solely in connection with Buyer’s advertisement, promotion and sale of the Products, and in accordance with ND’s then-current trademark usage policies. Buyer shall not remove or destroy or alter any copyright notices, trademarks or other proprietary markings on the Products, documentation or other materials related to the Products. Such usage by Buyer shall terminate immediately upon termination of its business relationship with ND, or upon written request from ND to cease such use. Any marketing materials released by Buyer, including catalogs, advertisements, flyers and Websites, must comply with the foregoing. Note that any product, process or technology described in ND’s materials, including on its Website, may be the subject of other intellectual property rights reserved by ND and are not licensed hereunder. ND, Vibra-Tite and other brand names listed on ND’s Website are the worldwide trademarks or registered trademarks of ND. Trademarks of other parties are identified wherever possible and ND acknowledges their rights.
- Force Majeure. Except for payment obligations of Buyer hereunder, neither party shall be liable under the purchase agreement for delays in performance or failure to perform its obligations caused by circumstances beyond its control, including but not limited to, acts of God, wars, riots, strikes, floods, labor disputes, accidents, and governmental restrictions.
- Miscellaneous. The following miscellaneous Terms and Conditions shall apply:
- A. These Terms and Conditions may be executed in counterparts (including counterpart facsimiles) and each counterpart shall be deemed to be an original instrument, but all counterparts shall together constitute one agreement.
- B. In case any one or more of the provisions contained in these Terms and Conditions shall for any reason be held to be invalid, illegal or unenforceable in any respect that disability shall not affect any other provision herein and these Terms and Conditions shall be construed as if that provision had never been contained herein.
- C. Captions to paragraphs of in these Terms and Conditions have been included solely for the sake of convenient reference, and are entirely without substantive effect.
- D. These Terms and Conditions shall be binding upon, and its benefits shall inure to, the parties hereto and their respective heirs, representatives, successors, and assigns.
- The Purchase Order and these Terms and Conditions shall be governed by and construed in accordance with the laws of the State of the Michigan with the courts sitting in either Oakland County, Michigan or the United States District Court for the Eastern District of Michigan having exclusive jurisdiction.
- The Purchase Order and these Terms and Conditions embody the entire understanding between the parties with respect to the transaction contemplated herein. All prior or contemporaneous agreements, understandings, representations, warranties, and statements, oral or written, are merged into these Terms and Conditions. Neither these Terms and Conditions nor any of its provisions may be waived, modified, amended, discharged, or terminated except by an instrument in writing signed by the party against which that enforcement is sought and then only to the extent set forth in that instrument.
- Assignment. Buyer may not assign its rights under the Purchase Order or these Terms and Conditions without the prior written consent of ND. Any assignment made without ND’s written consent shall be null and void.
TERMS AND CONDITIONS TO ND’S PURCHASE ORDERS
1. Background. ND Industries, Inc. (“ND”) develops, manufacturers, markets, sells and distributes various coatings and other products for the fastener and other industries, as well as the equipment utilized to apply such coatings. The Seller (as identified in the related quote or Purchase Order) is interested in selling ND those goods and/or services as more fully described in Seller’s quote or ND’s Purchase Order, as applicable (the “Work”, “products”, or “services”). These Terms and Conditions shall be deemed incorporated into ND’s Purchase Order for the Work whether or not specifically referenced therein. Unless otherwise expressly agreed in writing, all purchases are subject to the following terms and conditions:
2. Prices. All prices shall be stated in this Purchase Order and are firm and not subject to escalation. Seller represents and warrants that the prices set forth in this Purchase Order are at least as low as those currently being quoted by Seller to commercial users for the same products or services, in like quantities, under similar circumstances. If no price is stated for any product or service, the price for that product or service shall be the lowest price currently quoted or charged by Seller for that product or service, but in no event higher than the price most recently quoted or charged to ND by Seller for that product or service.
3. Taxes. Unless otherwise provided in this Purchase Order, the price includes, and Seller shall pay, all excise, sales, use, transfer or other taxes, federal, state, and local, in connection with the sale or delivery of the Work to ND.
4. Terms Of Payment. Unless ND has otherwise agreed in writing, payment terms shall be net thirty (30) days from the later of the date ND receives Seller’s invoice or the date on which ND accepts the Work as satisfactory.
5. Quantities. Unless ND has otherwise agreed in writing, Seller must deliver the exact quantities specified, if applicable. ND reserves the right to reject incomplete deliveries and to return at Seller’s risk and expense excess quantities delivered.
6. Packaging and Shipment. All products provided as part of the Work, if any, shall be packaged, marked, and otherwise prepared for shipment by Seller in suitable containers in accordance with sound commercial practices. Seller shall mark on all containers all necessary handling, loading, and shipping instructions, including but not limited to: ND’s Purchase Order number; ND’s item number and bar code; and description of product contained and quantity therein. An itemized packing list shall be included with each shipment on the outside of shipping container stating same information. Bills of lading and delivery slips must also include Purchase Order number and description of product.
7. Delivery. ND’s sale schedules are established in part in reliance upon the delivery information specified in this Purchase Order. The date specified (if any) is the date of arrival at ND’s facility. Time and place of delivery are of the essence in the performance of this Purchase Order. Any provision for delivery in installments shall not be construed as making the obligations of Seller severable. If delivery cannot be made at the specified time and place, Seller shall promptly notify ND of the earliest possible date for conforming delivery. Notwithstanding such notice, and unless otherwise agreed by ND in writing, Seller’s failure to effect conforming delivery shall entitle ND to revoke any acceptance, to cancel this order without liability to Seller, to receive a full refund on any amounts paid, to purchase substitute products or services elsewhere, to return at Seller’s risk and expense all or any part of a nonconforming delivery and to hold Seller accountable for any loss or additional costs incurred. ND’s receipt or acceptance of all or part of a nonconforming delivery shall not constitute a waiver of any claim, right or remedy ND has under this Purchase Order or under applicable law.
8. Title and Risk of Loss. Title to and risk of loss for products purchased which conform to this Purchase Order shall pass to ND upon receipt and acceptance at ND’s premises. Title to and risk of loss for nonconforming products and for all property provided to ND by Seller shall remain with Seller.
9. Inspection and Rejection. ND may inspect and test all products and services at reasonable times before, during and after manufacture or provision. All products and services shall be received subject to ND’s inspection, testing, approval and acceptance at ND’s premises. Products or services rejected by ND as not conforming to the Purchase Order may be returned to Seller at Seller’s risk and expense and shall not be replaced by Seller without ND’s written authorization.
10. Warranties. In addition to any other express or implied warranties, Seller warrants that all Work delivered hereunder will be merchantable, new, suitable for the uses intended, of the grade and quality specified, free from all defects in design, material and workmanship, will conform to all samples, drawings, descriptions and specifications furnished, and will be free of liens and encumbrances. These warranties shall survive any delivery, inspection, acceptance, payment or resale of the Work and shall extend to ND and ND’s customers, if applicable. These warranties shall be construed as conditions as well as warranties and shall not be deemed to exclude Seller’s standard warranties or other rights or warranties which ND may have or obtain. At its expense and option, Seller shall replace or repair any products not conforming to the foregoing warranties and shall correct all software products not performing substantially in accordance with applicable product specifications. If after notice Seller fails promptly to replace or repair any such product or to correct any such software product, Seller shall promptly refund to ND the full purchase price paid by ND for all such products.
11. Intellectual Property; Non-Infringement. Seller acknowledges and agrees that all intellectual and industrial property provided to Seller by ND, as well as the terms of this Purchase Order and the existence and content of the relationship between the Seller and ND, shall be treated as confidential, and shall not be used or disclosed by Seller except as required in the course of performing this or other Purchase Orders for ND. Seller represents and warrants that the Work delivered hereunder does not infringe any United States or foreign patent, trademark, trade secret or copyright, or any proprietary, intellectual property, industrial property, contract or other right held by any third party.
12. Changes. ND may, at any time and from time to time, by notice to Seller, make changes in specifications, designs, drawings, method of packing or shipments, quantity ordered, destinations and delivery schedules and Seller shall immediately comply therewith. If any such change causes a material increase or decrease in Seller’s cost or the time for performance, an equitable adjustment shall be made to the price or delivery schedule, or both. No change, modification or revision of this Purchase Order by Seller shall be binding upon ND unless in writing and signed by ND’s duly authorized representative.
13. Compliance with Laws.
A. Seller shall comply with all applicable governmental laws, ordinances, codes, rules, regulations, programs, plans and orders in the performance of this Purchase Order. At ND’s request, Seller shall provide appropriate certificates of compliance.
B. Seller shall obtain all permits or licenses required in connection with the manufacture, sale, shipment and installation of the products ordered hereby and/or the performance of the services..
C. If in connection with the Work to be delivered under this Purchase Order, Seller is required to comply with Occupational Safety and Health Act’s hazardous communications standard (48 Fed. Reg.53280(1983)), Seller agrees to provide ND with copies of the applicable Material Safety Data Sheets at the time of delivery to ND’s premises of the products or services ordered hereunder which require such compliance, and any updates of such sheets required to be delivered by Seller to ND under such laws and regulations and/or upon request. In providing the products under this Purchase Order, Seller will comply with any and all applicable federal, state, local, and foreign laws, regulations and other legal requirements, including but not limited to the Federal Occupational Safety and Health Act of 1970, the Federal Hazardous Substances Act, the Transportation Safety Act of 1974, the Hazardous Materials Transportation Act, the Clean Air Act, the Toxic Substances Control Act, the Clean Water Act, the Resource Conservation and Recovery Act, Sections 6,7, and 12 of the Fair Labor Standards Act, the U.S. Foreign Corrupt Practices Act (“FCPA”), the United Kingdom Anti-Bribery Act of 2010 (“Bribery Act”), the Customs-Trade Partnership Against Terrorism (“C-TPAT”) Program, and such amendments to such laws and regulations and policies, orders, permits, licenses and governmental approvals promulgated or issued thereunder. Upon request by ND, Seller shall certify in writing, from time to time, its compliance with all or any applicable laws, rules, regulations or legal requirements.
D. Seller represents that it is in compliance with all federal laws and regulations relating to contracting with small and disadvantaged business concerns and to equal employment opportunity and affirmative action in the employment of minorities, women, individuals with disabilities, and certain veterans. All such laws and regulations are incorporated herein by reference and Seller agrees not to discriminate against any employee or applicant for employment because of age, race, color, religion, sex, national origin, veterans’ status, or physical/mental disability that is not related to the performance of the specific position.
E. Seller will indemnify, defend, and hold harmless ND, its agents, employees, customers, and users of its and their products against all suits, actions or proceedings, at law or in equity, and from all claims, demands, losses, judgments, damages, costs, expenses, or liabilities, including reasonable attorneys’ fees, resulting from or arising out of any failure of Seller or Seller’s employees, agents, and subcontractors to comply with any applicable laws and regulations.
F. Seller agrees to provide all information necessary for ND to comply with all applicable laws and regulations, including, without limitation, related legal reporting obligations, in the country of destination. Seller agrees to provide all documentation and/or electronic transaction records to allow ND to meet customs related obligations, any local content and origin requirements, and to obtain all tariff and trade program duty avoidances and/or refund benefits, where applicable. Seller further agrees to assume, and to indemnify ND against, all financial responsibility arising from Seller’s failure to comply with these requirements and/or to supply ND with the information required to meet legal reporting obligations, including, without limitation, any fines, penalties, forfeitures, or counsel fees incurred or imposed as a result of actions taken by the importing country’s government. The rights to and benefits of any duty drawback, including rights developed by substitution and rights which may be acquired from Seller’s suppliers and export credits, to the extent transferable to ND, are the property of ND. Seller will provide all documentation and information and take any necessary steps to obtain refunds or drawback of any duty, taxes or fees paid, and to receive export credits from, the government of the country of origin or export country. Seller will provide ND with all documentation and information required by applicable law necessary to determine admissibility, timely release, customs clearance and entry of the Work into the destination country. Seller will advise ND if the importation or exportation of the product requires an import or export license and will assist ND in obtaining any such license, but will not be required to incur any costs without reimbursement by ND. Seller warrants that the information regarding the import or export of the product supplied to ND is true and correct, and that all sales covered by the Purchase Order will be made at not less than fair value under the anti-dumping laws of the countries to which the product is exported.
G. Seller represents that it does not, and shall not, utilize slave, prisoner, child, or any other form of forced or involuntary labor, as defined by applicable law, in connection with the supply of products or services to ND under the terms of this Purchase Order.
H. Seller shall certify in writing that it is either a participating member of the C-TPAT program as promulgated by the U.S. Customs and Border Protection Bureau or that is in compliance with all applicable supply chain security recommendations or requirements of the C-TPAT program initiative (for more information go to http://cbp.gov/xp/cgov/import/commercial_enforcement/ctpat/). Seller shall indemnify and hold ND harmless from and against any liability, claims, demands or expenses (including attorneys’ or other professional fees) arising from or relating to Seller’s noncompliance.
I. Seller will, and will ensure that its subcontractors will, not act in a manner or take any action that will, or could be reasonably expected to, render ND liable for a violation of the FCPA, the Bribery Act, and any other similar act, law, directive, rule or regulation which prohibits the offering, giving or promising to offer or give, directly or indirectly, money or anything of value to any official of a government, governmental entity or agency, political party or instrumentality to assist Seller or ND in obtaining or retaining business or to gain an unfair business advantage.
J. During the term of the Purchase Order, ND’s customer may ask or require ND to disclose the country of origin of the raw materials or components of ND’s product or services, including, without limitation, the location of the mines from which the minerals were extracted which were used to form such raw materials. At ND’s request, Seller shall provide all relevant information and reporting as may be requested (including, without limitation, information related to Seller’s suppliers) to enable ND to completely and accurately make its disclosures, and will take any other actions reasonably required by ND to comply with this Section, including, but not limited to, purchasing or otherwise acquiring access to (and requiring Seller’s suppliers to purchase or otherwise acquire access to) any raw material “tracking” software or other products or activities required by ND. By way of example (but not by way of limitation), the requirements of this Section would include the disclosure to ND of information necessary to enable ND’s customer to comply with the Conflict Minerals disclosure mandate under section 1502 of the U.S. Dodd Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203) and regulations promulgated thereunder, potential legislation or regulations enacted by other countries or states pertaining to conflict minerals, as well as for social policies that ND, or ND’s customer wishes to pursue. If further guidance on compliance with section 1502 is provided by governmental or regulatory sources from and after the date hereof, Seller acknowledges and agrees that this section will be automatically and without any action required by ND modified to require compliance with such additional guidance.
A. ND may, by notice to Seller, cancel the whole or any portion of this Purchase Order in the event of:
(i) proceedings, voluntary or involuntary, in bankruptcy or insolvency, by or against Seller;
(ii) the appointment, with or without Seller’s consent, of any trustee or receiver for any substantial portion of Seller’s assets;
(iii) any assignment for the benefit of Seller’s creditors; or
(iv) Seller’s breach of any provision contained herein. In the event of any such cancellation, ND may procure, upon such terms and in such manner as ND may deem appropriate, products or services comparable to the Work covered by the Purchase Order so terminated, and Seller shall be liable to ND for any excess cost of such comparable products or services.
In the event of any such cancellation, ND may require Seller to deliver to ND in the manner and to the extent directed by ND, any completed or partially completed products or services, and such delivery shall be credited against any prepayment by ND properly allocable to such products or services. Seller shall continue performance of this Purchase Order to the extent not canceled. Except to the extent specifically set forth herein, ND shall have no obligation or liability to Seller in respect of the canceled portion of this Purchase Order. ND’s rights set forth in this Section 14 shall be in addition to ND’s other rights in the event of Seller’s default. In the event of any such cancellation all deposits or prepayments shall be deemed to have been held in trust for ND’s benefit and shall be returned to ND promptly upon request.
B. All of Seller’s obligations set forth in this Purchase Order shall survive the cancellation, termination or completion of this Purchase Order.
15. Assignment. Seller shall not delegate or subcontract any duties or assign any rights or claims under this Purchase Order without ND’s prior written consent, and any such attempted delegation, subcontract or assignment shall be void.
16. Governing Law. This Purchase Order and the rights and obligations of the parties hereunder shall be governed by and interpreted, construed and enforced in accordance with the laws of the State of Michigan, United States of America, and the courts sitting in Oakland County, Michigan, or the U.S. District Court for the Eastern District of Michigan shall have exclusive jurisdiction and venue over any dispute arising hereunder. The United Nations Convention on Contracts for the International Sale of Goods will not apply.
17. Authorization. Seller represents and warrants that it has been duly authorized to execute, deliver and perform this Purchase Order, and the person signing on the Seller’s behalf has the power and authority to do so.
18. Indemnification. Seller shall indemnify and hold ND harmless against any and all claims, losses, liabilities, damages, costs or expenses, including attorneys’ fees and court costs, and shall defend all actions and proceedings at its sole expense, resulting from the breach or alleged breach of any representation, warranty or agreement made by Seller in this Purchase Order, including, without limitation, Seller’s obligations to deliver the Work pursuant to this Purchase Order and Seller’s representations, warranties and agreements contained in this Purchase Order.
19. Insurance. Seller shall maintain with an insurance company or companies Comprehensive General Liability Insurance (including liability hereunder) in the minimum amount of $1,000,000, naming ND as an additional insured. Seller shall also maintain all required workers’ compensation insurance, automobile liability insurance, and errors and omissions insurance, as well as such other insurance coverage as ND may request. At ND’s request, a certificate of such insurance shall be filed with ND and shall provide for not less than 10 days prior written notice to ND of cancellation or material change. Liability insurance limits shall not be construed to limit ND’s right of indemnity hereunder.
20. Set-Off. Any amount owed to Seller by ND or any of ND’s affiliates shall be subject to deduction for any set-off counterclaim or indemnification right arising out of this or any other Purchase Order to Seller from ND or any of ND’s affiliates.
21. Severability. In the event that any one or more provisions contained in this Purchase Order shall be held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. The remedies contained herein are cumulative and in addition to any other remedies at law or equity. ND’s failure to enforce, or waiver of a breach of, any provision of this Purchase Order shall not constitute a waiver of any other breach or of such provision.
22. Entire Agreement. These Terms and Conditions and the related Purchase Order are the complete and exclusive statement of the contract between ND and Seller with respect to ND’s purchase of the Work. In case of a conflict between the terms and conditions on the face of this Purchase Order and the terms and conditions contained herein, the terms and conditions on the face of the Purchase Order shall control.
23. Additional or Inconsistent Terms. Any term or condition set forth in any Purchase Order provided to ND by Seller which is in any way different from, inconsistent with or in addition to the terms and conditions set forth herein will not become a part of this Purchase Order or be binding upon ND. If Seller objects to any term or condition set forth herein, this objection must be in writing and received by ND at the address stated on the opposite side prior to Seller’s delivery. ND’s failure to object to terms contained in any communication from Seller will not be a waiver of the terms set forth herein. Seller shall not condition any delivery upon the abrogation or modification of any of the terms and conditions included in this Purchase Order.
24. Work to be Completed on ND’s Premises by Seller. In the event that Seller is required, as a part of its fulfillment of the terms of this Purchase Order, to perform all or any aspect of the Work on ND’s premises, Seller assumes entire responsibility and liability for (and shall indemnify and hold ND harmless from) any losses, expenses, damage, demands and claims in connection with or arising out of any injury or alleged injury (including death) or damage to property, sustained or alleged to have been sustained in connection with or to have arisen out of the performance of such Work by Seller, its employees, agents or contractors.
25. Right to Audit. ND shall have the right, at any reasonable time and upon reasonable advance notice, to send its authorized representatives to examine all of the Seller’s documents and materials relating to Seller’s obligations under this Purchase Order or relating to Seller’s charges to ND, and to inspect Seller’s facility. If requested by ND, Seller will provide ND with such financial reports and documentation as are reasonably necessary to enable ND to assess the Seller’s ongoing ability to perform its obligations under the Purchase Order and for no other purpose, unless the Seller agrees otherwise in writing. Seller shall maintain all pertinent books and records relating to this Purchase Order for a period of four (4) years after completion of delivery of products or services pursuant to this Purchase Order.
A. ND’s sole liability to Seller under the Purchase Order (including its termination, expiration or cancellation) is to pay for the products and services and to pay any specific termination related amounts described herein. IN NO EVENT SHALL ND BE LIABLE TO SELLER FOR ANTICIPATED OR LOST PROFITS, INTEREST, PENALTIES OR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, MULTIPLE, OR EXEMPLARY DAMAGES OR LIABILITIES IN CONNECTION WITH THIS ORDER, WHETHER FOR BREACH OF CONTRACT, TORT LIABILITY, LATE PAYMENT, PROPERTY DAMAGE, PERSONAL INJURY, ILLNESS, OR DEATH OR OTHERWISE.
B. This Purchase Order includes all related customs duty and import drawback rights, if any, including rights developed by substitution and rights that may be acquired from Seller’s supplier(s) which Seller can transfer to ND. Seller shall inform ND of the existence of any such rights and upon request to supply such documents as may be required to obtain such drawback.
C. The failure of either party at any time to require performance by the other party of any provision of this Purchase Order will in no way affect the right to require such performance at any time thereafter, nor will the waiver of either party of a breach of any provision of this Purchase Order constitute a waiver of any succeeding breach of the same or any other provision.
D. Seller and ND are independent contracting parties and nothing in this Purchase Order will make either party the agent or legal representative of the other for any purpose, nor does it grant either party any authority to assume or to create any obligation on behalf of or in the name of the other.
E. If any term of this Purchase Order is invalid or unenforceable under any statute, regulation, ordinance, executive Purchase Order, or other rule of law, that term will be deemed reformed or deleted as reasonably determined by ND, but only to the extent necessary to comply with such statute, regulation, ordinance, Purchase Order or rule, and the remaining provisions of this Purchase Order will remain fully in effect. If this Purchase Order covers products or services to be exported into or imported from a country other than the United States whose laws, rules or regulations affect the composition or quality of the products or services, or any other material term hereof, Seller shall so inform ND and ND may, at its option, attach to this Purchase Order a supplement reasonably addressing such laws, rules or regulations, or may direct Seller to those terms and conditions of sale that govern ND’s purchases in such other country and, upon such direction by ND, such alternate terms and conditions shall then govern the Purchase Order.
F. The rights and remedies reserved to ND in this Purchase Order are cumulative and additional to all other remedies available to ND in law or equity.
G. Seller’s covenants, representations and warranties under this Purchase Order will survive any delivery, inspection, payment or acceptance and any completion, termination or cancellation of this Purchase Order.
H. If this Purchase Order covers products or services for ND’s use in the performance of any contract, sub-contract, or purchase order in which the United States Government, or any agency or department thereof, is the principal contractor, then a Supplement A will be attached hereto and the additional terms and conditions set forth in Supplement A to this Purchase Order will apply.
I. If this Purchase Order covers products or services to be delivered by Seller to or for the benefit of a facility of ND or one of its affiliates outside the United States, this Purchase Order shall also be subject to the specific terms and conditions published by ND for the country in which such facility is located.
Rev. Date: May, 2015