Purchase Orders Terms and Conditions
1) Applicability.
a) This purchase order is an offer by [O.C. Tanner Entity] (the “Buyer”) for the purchase of the goods specified on the face of this purchase order (the “Goods”) from the party to whom the purchase order is addressed (the “Seller”) in accordance with and subject to these terms and conditions (the “Terms”; together with the terms and conditions on the face of the purchase order, the “Order”). This Order, together with any documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the Order, unless a Master Agreement has been executed between the Buyer and Seller (the “Master Agreement”). The Order expressly limits Seller’s acceptance to the terms of the Order, or those found in the Master Agreement. These Terms prevail over any terms or conditions contained in any other documentation, except for those found in a Master Agreement executed between Buyer and Seller and expressly exclude any of Seller’s general terms and conditions of sale or any other document issued by Seller in connection with this Order. If there is any ambiguity between this Purchase Order and an executed Master Agreement, the terms of the Master Agreement shall govern.
b) These Terms also apply to any repaired or replacement Goods provided by Seller hereunder.
2) Acceptance. This Order is not binding on Buyer until Seller accepts the Order in writing or starts to perform in accordance with the Order. Buyer may withdraw the Order at any time before it is accepted by Seller.
3) Delivery Date. Seller shall deliver the Goods in the quantities and on the date(s) specified in this Order or as otherwise agreed in writing by the parties (the “Delivery Date”). Timely delivery of the Goods is of the essence. If Seller fails to deliver the Goods in full on the Delivery Date, Buyer may terminate the Order immediately by providing written notice to Seller and Seller shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses directly attributable to Seller’s failure to deliver the Goods on the Delivery Date. [
4) Quantity. If Seller delivers more than the quantity of Goods ordered, Buyer may reject all or any excess Goods. Any such rejected Goods shall be returned to Seller at Seller’s risk and expense. If Buyer does not reject the Goods and instead accepts the delivery of Goods at the increased or reduced quantity, the Price for the Goods shall be adjusted on a pro-rata basis.
5) Delivery Location. All Goods shall be delivered to the address specified in this Order (the “Delivery Location”) during Buyer’s normal business hours or as otherwise instructed by Buyer.
6) Shipping Terms and Packaging. Unless otherwise specified in this order, Buyer is responsible for all shipping charges as specified in the Buyer Routing Guide and all Goods shall be packed for shipment according to the Buyer’s Routing Guide. Seller shall give written notice of shipment to Buyer when the Goods are delivered to a carrier for transportation. Seller shall provide Buyer all shipping documents, including the commercial invoice, packing list, and any other documents necessary to release the Goods to Buyer within three business day[s] after Seller delivers the Goods to the transportation carrier. The Order number must appear on all shipping documents, shipping labels, invoices, correspondence and any other documents pertaining to the Order.
7) Title and Risk of Loss. Title passes to Buyer upon delivery of the Goods to the Delivery Location. Seller bears all risk of loss or damage to the Goods until delivery of the Goods to the Delivery Location.
8) License. Seller hereby grants to Buyer a nonexclusive, worldwide license (i) to modify the file size of, display, reproduce, and publish all images, text, or information supplied by Seller (collectively, the “Seller Content”) for resale purposes of the Goods and Buyer’s products and services; and (ii) to display, reproduce, and publish Seller’s and all trademarks and logos related to the Goods in any media in connection with the promotion of the Goods.
9) Inspection and Rejection of Nonconforming Goods. The Buyer has the right to inspect the Goods on or after the Delivery Date. Buyer, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines the Goods are nonconforming or defective. If Buyer rejects any portion of the Goods, Buyer has the right, effective upon written notice to Seller, to: (a) rescind the Order in its entirety; (b) accept the Goods at a reasonably reduced price; or (c) reject the Goods and require replacement of the rejected Goods. If Buyer requires replacement of the Goods, Seller shall, at its expense, promptly replace the nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective goods and the delivery of replacement Goods. If Seller fails to timely deliver replacement Goods, Buyer may replace them with goods from a third party and charge Seller the cost thereof and terminate this Order for cause pursuant to Section 20. Any inspection or other action by Buyer under this Section shall not reduce or otherwise affect Seller’s obligations under the Order, and Buyer shall have the right to conduct further inspections after Seller has carried out its remedial actions.
10) Recalls. If the Consumer Product Safety Commission or other international, federal, state or local agency (the “Agency”) issues an order pursuant to any consumer protection law (hereinafter referred to as the “Act”) requiring either Buyer or Seller to recall, replace, repair, or make refunds with respect to all or part of any Goods (a “Recall”) or where Seller determines that a Recall is warranted prior to or without regard to any proceeding or determination by the Agency, Seller shall do so at its expense and assume all costs (including without limitation, reimbursements to Buyer for its out-of-pocket expenses) and such Recall shall be effectuated in a manner determined by Seller with Buyer’s consent (which shall not be unreasonably withheld, conditioned or delayed). For purposes of this Section 10, out-of-pocket expenses shall include any expense incurred by Buyer relating to the Recall. In any event, Seller shall accept return of all of Buyer’s Goods involved in a Recall and Seller shall refund to Buyer all monies paid for such Goods (including all applicable shipping costs, taxes, and duties). Nothing contained in this Section shall prevent Buyer from taking any actions as may be required of it under applicable law and Seller shall reimburse Buyer for all costs and expenses incurred by Buyer in doing so. Seller shall promptly notify Buyer of any Recalls or threatened Recalls of any Goods.
11) Price. The price of the Goods is the price stated in the Order (the “Price”). Unless otherwise specified in the Order, the Price includes all packaging, insurance, customs duties and fees. No increase in the Price is effective, whether due to increased material, labour, or transportation costs or otherwise, without the prior written consent of Buyer.
12) Payment Terms. Seller shall issue an invoice to Buyer within five (5) days of the completion of delivery and only in accordance with the Terms. Buyer shall pay all properly invoiced amounts due to Seller within sixty (60) days after Buyer’s receipt of such invoice, except for any amounts disputed by Buyer in good faith. In the event of a payment dispute, Buyer shall deliver a written statement to Seller no later than fourteen (14) days prior to the date payment is due on the disputed invoice listing all disputed items and providing a reasonably detailed description of each disputed item. Amounts not so disputed are deemed accepted and must be paid, notwithstanding disputes on other items, within the period set forth in this Section 13. The parties shall seek to resolve all such disputes expeditiously and in good faith. Seller shall continue performing its obligations under the Order notwithstanding any such dispute.
13) Warranties.
a) Seller further represents and warrants that: (i) it has all right, power and authority to enter into this Agreement and perform its obligations hereunder; (ii) Seller will comply with all applicable laws, regulations, and ordinances; (iii) Seller shall provide complete and accurate hazardous material data with each shipment of Goods, if required; and (iv) neither Seller nor any of its employees, agents or representatives has offered or given any gratuity to any of Buyer’s employees, agents or representatives with a view towards securing favorable treatment with respect thereto.
b) Seller warrants to Buyer that from the Delivery Date, all Goods will: (a) be free from any defects in workmanship, material and design; (b) conform to applicable specifications; (c) be fit for their intended purpose and operate as intended; (d) be merchantable; (e) be free and clear of all liens, security interests or other encumbrances; (f) be genuine, new, and unused; and (g) not infringe or misappropriate any third party’s patent or other intellectual property rights. Seller’s warranties survive any delivery, inspection, acceptance or payment of or for the Goods by Buyer. Seller’s warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Buyer’s discovery of the noncompliance of the Goods with the foregoing warranties. If Buyer gives Seller notice of noncompliance with this Section, Seller shall, at its own cost and expense, promptly replace or repair the defective or nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods to Seller and the delivery of repaired or replacement Goods to Buyer.
c) The foregoing warranties are in addition to all other warranties, whether express or implied and will survive delivery, inspection, acceptance, and payment by Buyer. Statements of Seller made by sales agents or in advertising or promotional materials as to the quality, grade, performance and use of the goods furnished hereunder shall be express warranties of Seller made to Buyer in connection with this Agreement. Seller agrees that applicable warranties may be passed on to the end users of the Goods without additional charge and shall remain in effect for the duration of the longer of Seller’s normal warranty period or such period as may be set forth on the Purchase Order.
14) General Indemnification. Seller shall defend, indemnify, and hold harmless Buyer and Buyer’s parent company, its subsidiaries, affiliates, successors or assigns and its respective directors, officers, shareholders, and employees and Buyer’s customers (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost, or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any Insurance providers (collectively, “Loss”) arising out of or occurring in connection with the products purchased from Seller or Seller‘s negligence, willful misconduct or breach of the Terms. Seller shall not enter into any settlement without Buyer’s or Indemnitee’s prior written consent.
15) Intellectual Property Indemnification. Seller shall, at its expense, defend, indemnify, and hold harmless Buyer and any Indemnitee against any and all Losses arising out of or in connection with any claim that Buyer’s or Indemnitee’s use or possession of the Goods infringes or misappropriates the patent, copyright, trade secret, or other intellectual property right of any third party. In no event shall Seller enter into any settlement without Buyer’s or Indemnitee’s prior written consent.
16) Insurance. During the term of the Order and for a period of 6 months thereafter, Seller shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability), in an amount that is reasonable and prudent in the context of Seller’s business in general and this Agreement in particular, with financially sound and reputable insurers. Except where prohibited by law, Seller shall require its insurer to waive all rights of subrogation against Buyer’s insurers and Buyer or the Indemnitees.
17) Compliance with Law. Seller is in compliance with and shall comply with all applicable laws, regulations, and ordinances, including but not limited to the manufacturing, production, and shipping of any goods provided under this Order. Seller has and shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under the Order. Seller shall comply with all export and import laws of all countries involved in the sale of Goods under this Order. Seller assumes all responsibility for shipments of Goods requiring any government import clearance. Buyer may terminate this Order if any government authority imposes antidumping duties, countervailing duties or any retaliatory duties on the Goods.
18) Termination. Buyer may terminate this Order, in whole or in part, at any time with or without cause on upon written notice, including by e-mail or other electronic transmission, to Seller. If Buyer terminates the Order for any reason, Seller’s sole and exclusive remedy is payment for the Goods received and accepted by Buyer prior to the termination.
19) Limitation of Liability. IN NO EVENT IS BUYER, OR ANY OF ITS SUBSIDIARIES, AFFILIATES, FACILITIES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR ANY OF THEIR RESPECTIVE SUCCESSORS OR ASSIGNS, LIABLE FOR SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, OR OTHER INDIRECT DAMAGES, LOSSES, OR EXPENSES. Nothing in this Order shall exclude or limit (a) Seller’s liability under Sections 15, 16, 17 and 23 hereof, or (b) Seller’s liability for fraud, personal injury or death caused by its negligence or willful misconduct.
20) Waiver. No waiver by any party of any of the provisions of the Order shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the Order, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the Order shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
21) Confidential Information. All non-public, confidential or proprietary information of the Buyer, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Buyer to Seller, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential,” in connection with the Order is confidential, solely for the use of performing the Order and may not be disclosed or copied unless authorized by Buyer in writing. Upon Buyer’s request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to the Seller at the time of disclosure; or (c) rightfully obtained by the Seller on a non-confidential basis from a third party.
22) Publicity. Seller shall not advertise. use, issue any press release or make any other similar public announcement with regard to this Agreement, Buyer Property, or the relationship of the parties without the prior written consent of Buyer.
23) Force Majeure. No party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such party’s (the “Impacted Party”) failure or delay is caused by or results from the following force majeure events (“Force Majeure Event(s)”):(a) acts of God; (b) flood, fire, earthquake, pandemics, epidemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; and (g) other similar events beyond the control of the Impacted Party. The Impacted Party shall give notice within 10 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.
24) Assignment. Seller shall not assign, transfer, delegate or subcontract any of its rights or obligations under the Order without the prior written consent of Buyer. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Seller of any of its obligations hereunder. Buyer may at any time assign, transfer or subcontract any or all of its rights or obligations under the Order without Seller’s prior written consent.
25) Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in the Order shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from this Order.
26) No Third-Party Beneficiaries. This Order is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
27) Governing Law. All matters arising out of or relating to this Order shall be governed by and construed in accordance with the internal laws of the State of Utah without giving effect to any choice or conflict of law provision or rule (whether of the State of Utah or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Utah.
28) Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or relating to this Order shall be instituted in the federal courts of the United States of America or the courts of the State of Utah in each case located in the City of Salt Lake City and County of Salt Lake, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
29) Cumulative Remedies. The rights and remedies under this Order are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
30) Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of this Order, and in the case of Buyer, to SCS@octanner.com, or to such other address that may be designated by the receiving party in writing. Such Notice shall be deemed given when hand delivered, sent by telecopy or telefax, or other electronic transmission service, provided a confirmation copy is also sent by first class mail, return receipt requested, or, if mailed, five (5) business days after the date of mailing.
31) Amendment and Modification. No change to this Order is binding upon Buyer unless it is in writing, specifically states that it amends this Order and is signed by an authorized representative of Buyer.
32) Severability. If any term or provision of this Order is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
33) Survival. Provisions of this Order which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Order including, but not limited to, the following provisions: Warranties, General Indemnification, Intellectual Property, Indemnification, Insurance, Compliance with Laws, Confidentiality, Governing Law, Submission to Jurisdiction, and Survival.
34) Other.
a) Where applicable, any product Seller supplies to Buyer must comply with the PTSI Act which requires that manufacturers, importers and distributors (retailers) of consumer connectable products imported and/or sold in the UK to comply with certain minimum-security requirements.
b) Seller agrees to comply with the provisions of Buyer’s Code of Conduct available at www.octanner.com/company/our-commitment.
c) Where applicable, any product Seller supplies to Buyer must comply with EU REACH Regulation (EC 1907/2006).
d) Where applicable, any product Seller supplies to Buyer must comply with California Proposition 65, officially known as the Safe Drinking Water and Toxic Enforcement Act of 1986.