Nichols Aluminum Supplier
Terms and Conditions
This Purchase Order is an offer by Nichols Aluminum, a Division of Quanex ("Purchaser") to purchase Products from you ("Seller"). This is not an acceptance of any offer by Seller, and Purchaser objects to any additional or different terms of acceptance contained in any of Seller's forms or other correspondence. No contract shall exist except as herein provided, and the terms in this offer and those documents incorporated herein by reference, when accepted by Seller, shall constitute the entire agreement between the parties and shall supersede all prior writings, communications and negotiations. No modification of these terms and conditions shall be binding upon Purchaser unless in writing and signed by Purchaser. If Seller does not agree with these terms and conditions, Seller may: 1) decline to fill the order, or 2) contact Purchaser to negotiate different terms in writing. Any other action, including execution and return of this Purchase Order with additional or different terms will constitute an acceptance of this Purchase Order and its original terms. Any additional or different terms will be of no effect. Shipment of Products pursuant to this Purchase Order shall be deemed to be an acceptance by Seller of the terms and conditions contained herein, regardless of whether or not Seller has acknowledged this Purchase Order.
1. ACCEPTANCE/ENTIRE AGREEMENT:
All prices are firm, and no additional charges or payment terms will be allowed unless agreed by Purchaser. Purchaser shall be entitled to set-off from any amount due Seller hereunder any sums which Seller or any affiliated company owes to Purchaser.
Time shall be of the essence in performance of this Purchase Order. Deliveries are to be made on or before the date identified in the Purchase Order. Purchaser shall have no obligation to pay Seller for Product delivered under this agreement until the specified delivery date. Seller shall immediately notify Purchaser in writing of any causes which may delay delivery. If Sellerís performance is delayed beyond the date specified, Purchaser shall be entitled to cancel this Purchase Order without liability for any undelivered product and without waiver of any rights or remedies for breach by Seller. If delivery is so delayed, Seller shall utilize express shipment if necessary, at Seller's cost. Title to, and risk of loss, of Products purchased hereunder shall rest upon Seller until such Products are delivered to the F.O.B. point specified in this Purchase Order. If F.O.B point is not specified, the price stated is F.O.B. Purchaserís place of business as specified on this Purchase Order with shipping to that point at Seller's cost. The F.O.B. point shall be deemed to be the place of performance of this Purchase Order. Notwithstanding passage of title at the F.O.B. point, the Products purchased hereunder shall be subject to inspection and acceptance by Purchaser upon arriving at its destination.
All Products shall be packaged at Seller's expense and in a manner to prevent damage or destruction in transit. The Products shall be marked conspicuously with this Purchase Order and any packing list Identification, and shipped by the carrier and route specified by Purchaser. If carrier and route is not specified, Seller shall route and bill shipments to protect lowest freight rate. Seller shall comply with all applicable federal and state regulations concerning shipment of Products, including but not limited to, clearly identifying country of origin and labeling of Products.
5. INSPECTION/ACCEPTANCE OF PRODUCTS:
Seller guarantees that all Products or services supplied hereunder will conform to Purchaser's order. All goods received will be subject to Purchaser's inspection and acceptance. Payment for Products prior to inspection shall not constitute an acceptance thereof, and Purchaser shall be allowed a reasonable time after receipt or installation, if installation is required, for inspection or testing. Purchaser may reject nonconforming Products, and in its sole discretion, may demand immediate replacement and return such rejected Products at Seller's expense, hold pending Seller's instructions, effect cover, or pursue any alternative remedy allowed by law.
6. WARRANTIES AND REPRESENTATIONS:
Seller warrants and represents that all Products shipped under this Purchase Order, including packaging and labeling: (a) are sold in compliance with all applicable laws, regulations, orders, and ordinances of the country of origin and of the United States, and any state or agency or political subdivision thereof, including without limitation, any environmental or hazardous substance laws and regulations, the Federal Fair Labor Standards Act or similar state and local hour and wage payment laws, the Occupational Safety and Health Act of 1970, Equal Employment Opportunity Clause described by Executive Order 11246 and Executive Order 11375 (unless this transaction is exempt); (b) do not and will not infringe upon any patent, trademark, trade name, copyright, trade secret, or similar right; (c) are sold free and clear of all liens and encumbrances; (d) are free from any defects in design, material or workmanship, are of good and merchantable quality, and are fit for the particular purpose for which purchased hereunder; (e) conform to quality and standards and specifications established by Purchaser as set forth or referenced herein. Seller further represents that none of the items transferred or to be transferred by Seller are, nor contain, a "hazardous substance" as said term is defined in any federal, state or local environmental laws, nor contain radionuclides or other radioactive materials. If Purchaser rejects any Products because of the presence of hazardous substances, radionuclides or other radioactive materials, Seller shall retain title to the rejected Products, and shall have sole responsibility for, and shall ensure proper management of the Products to prevent any release or threatened release of such substances. Seller further warrants that Seller is in substantial compliance the substantive provisions of any and all applicable federal, state and local environmental laws or regulations and any related compliance orders (including any decrees issued pursuant thereto) which are applicable to the handling, processing or reclamation of (or other management activities associated with) recyclable materials.
If Seller fails to comply with any of these terms and conditions, Purchaser shall have the option to immediately cancel all or any part of this Purchase Order. Such cancellation shall not be deemed a waiver by Purchaser of any rights or remedies for any breach by Seller, and Purchaser expressly reserves all rights and remedies provided by statute or common law in the event of such breach. Without limiting the foregoing, Purchaser may, at its option, require Seller to repair or replace, at Seller's expense, any Products which breach Seller's warranty, wherever located. If Purchaser or an authorized dealer must repair or rework any product as a result of Seller's breach of warranty, then Seller agrees to reimburse Purchaser and/or the dealer for the labor and costs incurred in performing such work. In the event of nonconformity or failure of delivery, Purchaser may, in its sole discretion, cancel this contract and/or replace the items in open market after due notice, and recover from Seller the anticipated profit or difference between the market price at the time of replacement and the contract price, whichever is greater. The remedies of Purchaser are cumulative, and additional to any/or other further remedies provided by law. No waiver of any breach shall constitute a waiver of any other breach.
Seller agrees to defend, indemnify and hold Purchaser and its successors harmless, against any and all claims, liability or costs, damages and expenses (including attorneys' fees and costs for defending any action), fines and penalties which Purchaser or any successor may incur or sustain as a result of any claims of negligence, acts or omissions of Seller or its agents, breach or alleged breach of any of the foregoing warranties or terms of this Agreement, or products liability claims made in connection with the use of Products purchased under this Purchase Order. Seller shall procure and maintain insurance in sufficient amounts to conform to this requirement and name Purchaser as an additional insured under the policy whenever possible. Failure to insure Purchaser will constitute a contract to indemnify and hold Purchaser harmless even for its own negligence or fault. The duty to defend exists unless the whole cause of the injury or condition complained of is Purchaser's fault. In the event that the Purchaser incurs any liability, costs or obligation due to a breach of duty to defend, Seller agrees to indemnify and hold Purchaser harmless from all such costs, liabilities and obligations.
Purchaser may cancel this Purchase Order without cause and in such event Purchaser's liability for cancellation shall be limited to Seller's actual cost of work and Products applicable solely to this Purchase Order which have been expended before notice of cancellation has been received.
10. DRAWINGS, SPECIFICATIONS AND TECHNICAL INFORMATION:
All drawings, specifications, photographs and other engineering and manufacturing information supplied by Purchaser are hereby incorporated herein and made a part of this Purchase Order. Such information shall remain Purchaser's property, and shall be treated as confidential information and returned to Purchaser upon completion of the Purchase Order or upon demand. Any information which Seller may disclose to Purchaser with respect to the design, manufacture, sale or use of the items covered by this Purchase Order shall be deemed to have been disclosed as part of the consideration for this Purchase Order, and Seller shall not assert any claim against Purchaser by reason of Purchaser's use thereof.
11. NON-DISCRIMINATION AND CERTIFICATION OF NON-SEGREGATED FACILITIES:
If this Purchase Order is subject to Executive Order 11246, Seller acknowledges that it is Sellerís responsibility to ensure Equal Employment Opportunity to its employees and applicants in the performance of this Purchase Order (as provided in said Executive Order and the regulations applied thereto) and Seller warrants that it is in compliance therewith.
12. INDEPENDENT CONTRACTOR:
If this Purchase Order covers services, Seller shall act as an independent contractor in providing all such services, and shall have full control of the work involved in the work site, including the duty to supervise all workers, and comply with all the laws and regulations concerning their work. In such case, Seller must ensure that its employees are aware of site-specific safety conditions and fully comply with all safety rules and policies. Anyone exhibiting unsafe behavior will be asked to leave the premises. Preferential treatment may be given to contractors who voluntarily comply with the Nichols Aluminum Contractor Safety Program. Seller must obtain a copy of the Nichols Aluminum Contractor Safety Practices Manual and orient all of its employees and subcontracted employees to Buyerís site-specific safety conditions.
13. FORCE MAJEURE:
Purchaser reserves the right to cancel all or any part of this Purchase Order which has not actually been shipped if Purchaser's business is interrupted because of strike, labor disturbance, lockout, riot, fire, act of God, or any other cause beyond Purchaser's control. In the event of a delay in delivery, or nondelivery by Seller otherwise excusable under UCC ß 2-615, Seller shall notify Purchaser within 24 hours pursuant to paragraph (c) thereof. Seller agrees to meet all of Purchaser's requirements under this Purchase Order prior to any allocation among Seller's other customers pursuant to UCC ß 2-615(b) unless Purchaser instead terminates this Purchase Order.
Purchaserís failure to require Seller's performance of any obligations hereunder shall in no way affect its rights to require such performance at any time thereafter.
The invalidity or unenforceability of any term of this Purchase Order shall not affect the validity and enforceability of the remainder of this Purchase Order, or any of its other terms, and such other terms shall be construed as though such invalid or unenforceable term was not included herein.
16. ASSIGMENT/BINDING EFFECT:
This Purchase Order shall not be assigned by Seller except with Purchaserís prior written consent. This Purchase Order shall be binding and inure to the benefit of permitted successors and assigns. If Seller contracts to others to perform parts of this Purchase Order with Purchaserís consent, Seller shall require each such sub-contractor to agree to these terms and conditions, to the extent applicable to them, and shall be responsible for subcontractors and their workers in all respects.
This Purchase Order, and any agreement resulting from the acceptance hereof, shall be governed by and construed in accordance with the laws of the State of Iowa. The rights and obligations of the parties hereunder shall not be governed by the provisions of the 1980 UN Convention on Contracts for the International Sales of Goods. If litigation arises hereunder as a consequence of any transaction contemplated or resulting from this agreement, or either party's performance or breach hereof, jurisdiction and venue of such litigation shall be exclusively in the Iowa District Court for Scott County, Iowa, and Seller expressly consents to the exercise of jurisdiction by such Court.
17. GOVERNING LAW/CHOICE OF FORUM:
Sellerís records shall be open to inspection and subject to audit and/or reproduction by Purchaser upon reasonable notice during normal business working hours, to the extent necessary to permit evaluation and verification of Sellerís compliance with the terms of any pricing change orders, invoices or claims. If such an audit inspection reveals overpricing or overcharges of any nature, Seller shall make appropriate adjustments for the overcharges. If any such overcharges have already been billed to Purchaser under the applicable contract, Seller shall make appropriate adjustments for the overcharges and reimburse Purchaser as necessary. If such overcharges exceed one percent (1%) of billings under the contract, Seller will reimburse Purchaser for the costs of its audit.
19. COMPLIANCE WITH LAWS:
In connection with its manufacture of goods or services hereunder, the Seller shall at all times comply with all laws, rules and regulations applicable to it.