Supplier Terms and Conditions
TERMS AND CONDITIONS
Purchase Orders for LE SUEUR INCORPORATED
The term “Seller” as used herein shall mean the individual, firm, partnership or corporation to whom this purchase order is issued. The term “Buyer” as used herein shall mean LE SUEUR INCORPORATED.
OFFER AND CONTRACT: The following terms, together with such terms as are set forth on the face of this purchase order, with such plans, specifications, or other documents as are incorporated by reference on the face of this order, and with such additional terms as are provided in writing by buyer in any Change Order issued by LE SUEUR INCORPORATED to this purchase order, shall constitute the offer of buyer to seller and shall, when accepted by seller, constitute the entire order or contract between the parties. Buyer hereby gives notice of its objection to any different or additional terms as may be contained in any acceptance of this order by seller. This purchase order shall be deemed to have been accepted upon buyer’s receipt of an acknowledgement of this purchase order, upon seller’s shipment to buyer of the products identified herein, or, if the products are to be specially manufactured for buyer or a customer of buyer, upon seller’s commencement of the manufacture of such products. Seller shall have twenty (20) days from the date of this purchase order within which to acknowledge its acceptance. Any reference herein to any proposal, quotation, or other communication by seller shall, unless indicated to the contrary herein, be deemed to be limited to the description of the products and to be limited by the terms set forth or incorporated by reference herein. Except as hereinafter provided, products purchased under this purchase order shall be sold by seller at the prices set forth on the face of this document, and seller assumes all future increase in labor, materials, transportation and other costs.
ASSIGNMENT, SUBCONTRACTING: Neither party shall have any right to assign this purchase order or any benefits arising from this purchase order without the prior written consent of the other, and, unless otherwise agreed in writing, the rights of any assignee shall be subject to all set-offs, counterclaims and other comparable rights arising hereunder. Seller shall not, except in case of obtaining raw materials or standard commercial items, or except as otherwise agreed in writing by buyer, delegate or subcontract all or substantially all of the work on any item or material to be furnished under this purchase order.
SUBSTITUTIONS, EXTRAS: No substitution of materials or accessories may be made without buyer’s authorization, which is confirmed in writing. No charges for extras or changes will be allowed unless such extras and changes have been ordered in writing by buyer and the price agreed upon.
CONFIDENTIAL BUSINESS INFORMATION: Unless otherwise agreed in writing between the parties, any designs, drawings, specifications or other manufacturing information furnished by buyer to seller, shall be deemed to be confidential and to have been furnished solely for the performance of this purchase order and all copies of such information shall be returned to buyer upon completion by seller of the manufacture and delivery of the goods contracted for. Seller shall not disclose to any third party information furnished by buyer to seller or permit access to such information by any third party unless seller shall first obtain buyer’s written consent.
INVOICES: Seller shall provide buyer with invoice in duplicate, listing terms of payment, unit price, trade discounts, date shipped and routing information. Each order or shipment shall be separately invoiced. Invoices not conforming to buyer’s purchase order will be returned for correct billings. The time allowed by the seller for payment of invoices or for allowing discounts, shall commence on the date invoices are received by the buyer or material is received at the destination.
COMPLIANCE WITH LAWS: Seller’s performance of work, pursuant to this purchase order, and all products to be delivered hereunder, shall be in accordance with any and all applicable executive orders, federal, state, municipal and local laws, ordinances, rules, orders, requirements, and regulations. Such federal laws shall include, but not be limited to the Fair Labor Standards Act of 1938, as amended.
SHIPMENT, TITLE AND RISK OF LOSS: Title to, and risk of loss with regard to each product or part to be delivered by seller hereunder shall, unless otherwise provided in writing, remain with seller until such time as seller makes delivery to buyer of such product at F.O.B. point designated on the face of this order. Shipments shall be made in accordance with buyer’s shipping instructions, which are subject to revision or temporary suspension with respect to undelivered quantities. Packing slips showing the correct destination, quantity, part number, description and the purchase order number, must accompany each shipment made to the buyer. The package or container, containing the master packing slip, must be conspicuously marked “Packing Slip Inside”.
INSPECTION: All material and work in progress shall be subject to inspection by buyer at seller’s place of business or manufacture, during normal business hours. All goods shall be subject to inspection by buyer after receipt by buyer at buyer’s plant. If material shipped or work performed by seller is found to be defective, buyer shall have the right to require the prompt correction thereof either by seller, or by a third party of buyer’s sole choice and selection, which corrections shall be undertaken at seller’s risk and at seller’s expense. Buyer may back-charge seller for the cost of any corrections. If the defects are such that corrections are impracticable, seller shall, after receipt of notice of rejection by buyer, and if so requested by buyer and at its own expense, promptly manufacture or otherwise provide to buyer all necessary replacements. Should seller fail to make such replacements properly, buyer may, by contract with a third party, or otherwise, acquire replacement goods from another source and charge seller with the excess costs incurred by buyer in acquiring such goods together with such damages as may have been incurred by buyer, and/or buyer’s customer by reason of seller’s sale of defective products to buyer under this purchase order. Seller shall reimburse and pay to buyer all products and transportation costs (both delivery and return) which are incurred by buyer on account of any defective, nonconforming or rejected products purchased by buyer under this purchase order.
CHANGE ORDERS: Buyer shall have the right, from time to time, by written change order, to make changes or additions in or to the drawings, specifications or instructions for the work, the quantity of product to be delivered by seller, or the time or method of delivery or shipment. Should any change so ordered cause a material increase or decrease in the cost of or the time required for, the performance of any part of the work to be done under this purchase order an equitable adjustment shall be made in the order price or time of performance or both. Seller shall, however, as a condition precedent to any such right of adjustment, submit its written notice to buyer requesting such adjustment within thirty (30) days after seller has received buyer’s change order or after any other action of buyer which seller considers to constitute a change request. Seller shall, unless written instructions to the contrary have been received from buyer, proceed with the work as changed without interruption and without awaiting settlement of any adjustment occasioned by the change. Change orders shall be acknowledged in writing by seller within twenty (20) days of the date reflected on each such change order.
DELIVERY, DELAYS: The time or times of delivery specified in this purchase order are of the essence of any contract entered into by the parties. Any delay in the delivery of the products purchased pursuant to this order will be excused only if such delay is due to fire, windstorm, riot, act of God, act of the public enemy, or other unforeseeable causes beyond the control and without the fault or negligence of seller. In the event of such delay, seller shall immediately notify buyer in writing of the existence and cause thereof.
TERMINATION, CANCELLATION: Buyer shall have the right to terminate this order in whole or in part by written or telegraphic notice whenever it deems such action to be in its best interest. In the event of a termination, other than a cancellation for default by seller, if seller, at the time of termination shall have in stock or on firm order any raw, semi-processed, or completed materials for use in fulfilling this contract or purchase order, then and in that event buyer may at its option, either require delivery of all or part of the completed materials and make payment therefor at the contract price or, without taking delivery thereof pay seller the equivalent of the net profit which seller would have received for the sale of those completed goods to the buyer under the contract; and in the case of raw or semi-processed materials, buyer may, at its option, either require seller to complete and deliver all or part of such materials at the contract price, or without taking delivery thereof pay seller a proportion of the contract price based on the stage of completion of such materials reduced by the value of such materials at such stage of completion; and in the case of materials which seller has on firm order, buyer may, at its option, either take an assignment of seller’s rights under such order together with the obligation to pay the cost thereof, or buyer may take delivery of said materials and reimburse the seller therefor. The preceding paragraph shall not limit any legal rights of buyer to cancel this order by reason of any default by seller and buyer further reserves the right to cancel this order without further liability for articles not accepted by buyer in the event buyer terminates this contract for cause.
WARRANTY: Seller expressly warrants that the products or services to be delivered or performed hereunder will comply with the descriptions and specifications set forth or incorporated by reference herein, will be free of defects in workmanship and material, will be merchantable, and will be fit for such purposes as are expressed in or reasonably inferable from the specifications, drawings or other descriptions of the goods and material which are a part of this purchase order. Seller further warrants that all materials, parts, and services to be supplied under this purchase order, will meet all federal and state EPA and OSHA requirements including proper usage instructions, labeling, and packaging specifications. Seller warrants that any and all equipment and material delivered for or to buyer, or its designee, and/or any and all work performed for buyer’s premises or the premises of buyer’s customer under this purchase order shall comply with all requirements of the Occupational Safety and Health Act of 1970, as amended, including all regulations adopted pursuant to such Act, and shall comply with all requirements of any applicable health or safety statute or regulation of any state or local government or agency having jurisdiction in the location to which such equipment is to be shipped, or where such work is to be performed, pursuant to this purchase order. The foregoing provisions shall not be deemed to limit any other duty of the seller to comply with statutes, order, rules or regulations.
LIENS: Seller shall deliver products which are the subject matter of this purchase order to buyer free and clear of all liens, claims and encumbrances.
PATENTS: Unless otherwise expressly agreed in writing, and except as herein below provided, seller shall assume the defense of any suit for infringement of patents brought against buyer or its vendees, based upon the goods or products purchased hereunder constituting a patent infringement, and seller shall indemnify buyer and such vendees against any decree or costs in such suit. Buyer shall promptly notify seller in writing of any such suit and shall give seller full opportunity to conduct the defense thereof. Seller shall have the same right to manufacture and sell, as set forth above, in the event such products are manufactured by seller to buyer, and manufactured in accordance with designs, specifications or drawings supplied by buyer or buyer’s customer and in the event that an infringement results, unless seller is found to be a contributory infringer.
BUYER FURNISHED PROPERTY: Any and all tools, equipment, material, molds, castings, drawings, specifications, directions, photographs, models or other property used in the manufacture of products for buyer which are supplied to seller by buyer or which are acquired by seller on buyer’s account or which are paid for by buyer, shall not, without buyer’s written consent, be used by seller on work being performed for any other customer. Title to all such property shall, at all times, be remain in buyer. Seller shall, upon request of buyer and without additional charge, execute such financing statements, security agreements, or other instruments as may be necessary to make buyer’s title a matter of public record. Seller shall keep all such property separate from all other property and clearly marked to show buyer’s ownership and seller shall do all things necessary and appropriate to preserve buyer’s title thereto, free and clear of all encumbrances. Seller shall, upon request by buyer, furnish buyer with an itemized inventory of all buyer-owned property in seller’s possession or under seller’s control. Buyer shall have the right, during normal business hours to enter upon seller’s premises and inspect all such property held by seller. Buyer shall have the right, at buyer’s sole election, to enter upon seller’s premises and remove any or all of buyer’s property therefrom, with or without the decree or order of any court. Upon completion, termination, or cancellation of this order, seller shall upon request of buyer, cause buyer’s property to be delivered to buyer at such destination as buyer may designate. Seller shall, at its own expense, perform all maintenance work; repairs and replacements which may be necessary with respect to any of buyer’s property held by it so that the same may remain suitable for the use contemplated hereby. Upon termination of this purchase order, said property will be returned to buyer in as good condition as when received by seller except for reasonable wear and tear and for any consumption of materials necessarily resulting from the use thereof. Risk of loss for buyer’s property held by seller shall be upon seller and seller shall carry property damage insurance in the amounts sufficient to compensate for any casualty to its property while held by seller. Seller hereby assumes all responsibility for, and agrees to indemnify and hold buyer harmless against any and all liability for damage to property or injury or death of persons arising from the presence, use or operation of buyer’s property while in the possession or under the control of seller, whether on seller’s premises or elsewhere. Seller shall maintain public liability insurance covering the indemnity set forth above, in the amount of $250,000. Seller shall furnish buyer with certificates evidencing such insurance upon buyer’s request. Seller shall also maintain adequate Workmen’s Compensation Insurance coverage for all of its employees engaged in the performance of this order. Seller shall indemnify and hold buyer harmless against any and all claims of such employees and their dependents, arising out of the use of buyer’s property on seller’s premises, or arising out of the presence or use of the buyer’s property upon seller’s premises, or arising out of the care, custody or control of buyer’s property by seller.
EQUAL EMPLOYMENT OPPORTUNITY: All subcontractors, vendors, and suppliers are hereby notified that it is the policy of LE SUEUR INCORPORATED to provide equal employment opportunity and to adhere to the federal, state, and local law pertaining thereto. It is requested that appropriate action be taken on the part of all LE SUEUR INCORPORATED subcontractors, vendors, and suppliers to ensure adherence to such laws. Therefore, seller agrees to comply with all provision of Executive Order 11246 of September 24, 1965, and all rules, regulations, and relevant orders of the Secretary of Labor related to equality of employment opportunity. Said Executive Order, rules and regulations are incorporated herein by reference and seller further agrees that upon request by buyer, seller shall execute all certifications required by said Executive Order and/or Department of Labor.
TERMINATION FOR CAUSE: Buyer reserves the right to terminate this purchase order, or any part thereof, and to cancel all or any part of the undelivered portion of this order if seller fails to deliver the products or perform services, by the time specified in this purchase order, or if seller fails to deliver products or perform services that meet the required specifications, or if seller otherwise breaches any of the terms or conditions of this purchase order, including the warranty set forth herein. Buyer may also terminate this purchase order if it appears to buyer that seller has failed to make sufficient progress on the work so as to endanger timely performance. Seller’s insolvency, the filing of a voluntary or involuntary petition in bankruptcy, a filing for appointment of a receiver or an assignment for the benefit of creditors by seller shall also constitute justification for termination of this purchase order for cause by buyer. Buyer shall have no continuing obligations to seller in respect of the cancellation of this purchase order, or any portion thereof, when the termination of seller is founded upon any cause under this paragraph. Buyer’s liability shall be limited to payment for those goods and services which have been delivered to buyer pursuant to this purchase order and which have been accepted by buyer prior to notice of termination for cause being given to seller by buyer.
GOVERNING LAW AND SELECTION OF FORUM: This purchase order and any contract of which it forms a part, shall be governed by and construed in accordance with the laws of the State of Minnesota. Buyer and seller hereby designate the Minnesota State District Court as the forum before which any and all disputes, litigation, or claims arising out of this contract shall be brought. Buyer and seller do hereby expressly acknowledge and admit to the personal jurisdiction of the courts of the State of Minnesota for the resolution of all disputes arising out of this contract.
INDEMNIFICATION: Seller hereby expressly and unequivocally agrees to hold buyer harmless from and indemnify buyer against any and all claims, damages, lawsuits, judgments, injury, or loss of any kind or nature, including attorney fees and other costs and expenses of litigation, arising in whole, or in part, out of any alleged defect, regardless of whether patent or latent, in any of the products, workmanship or services rendered by seller, or any subcontractor of seller in connection with seller’s performance of any portion of the contract evidenced by this purchase order, or arising out of any delay by seller or any subcontractor of seller to timely perform its obligations under this purchase order, or arising out of any breach of warranty, breach of any term or condition of this contract, or negligence on the part of seller or any of its subcontractors in performing, or failing to properly perform, any part of the contract evidenced by this purchase order. This indemnification of buyer and seller shall include, but shall not be limited to any and all claims made against buyer for property damage, personal injury, death, lost profits, commercial loss, economic loss, consequential damages, punitive damages, general damages, special damages, cost of cover, cost to cure, incidental damages, and all other damages, relief or remedies which may be sought against buyer whether at law, in equity, by statute, by rule, by regulation, by penalty or by forfeiture.
SET-OFF: Buyer shall be entitled at any and all times to set-off any amount of monies owed at any time from seller to buyer (or any affiliated company of buyer) against any amount payable at any time by buyer (or any of its affiliated companies) to seller.
COMPLETE CONTRACT: This purchase order contains the complete and final agreement between the parties, and may not be varied or amended except by written instrument signed by both parties.
