PURCHASE ORDER TERMS & CONDITIONS
GENERAL. These terms and conditions (these “Terms”) apply to all purchases of goods (“Goods”) by Consolidated Bearing Company (“Consolidated”) pursuant to a purchase order or other document or instrument that references these Terms (an “Order”). The Order and these Terms (collectively, the “Agreement”) constitute the sole and exclusive agreement of Consolidated and the seller of the Goods (the “Seller”), and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the Agreement. The Agreement expressly limits Seller’s acceptance to the terms of the Agreement. These Terms prevail over any terms or conditions contained in any other documentation and expressly exclude any of Seller’s general terms and conditions of sale or any other document issued by Seller in connection with this Agreement. These Terms apply to any repaired or replacement Goods provided by Seller hereunder. Consolidated is not obligated to any minimum purchase or future purchase obligations under this Agreement.
Acceptance. An Order is not binding on Consolidated until Seller accepts the Order in writing or starts to perform in accordance with the Order. Consolidated may withdraw an Order at any time before it is accepted by Seller.
Price. The price of the Goods is the price stated in the Order (the “Price“). If no price is included in the Order, the Price shall be the price set out in Seller’s published price list in force as of the date of the Order. Unless otherwise specified in the Order, the Price includes all packaging, transportation costs to the Delivery Location, insurance, customs duties and fees and applicable taxes, including, but not limited to, all sales, use or excise taxes. Seller shall be responsible for all costs associated with compliance with any applicable tariffs, duties, or trade restrictions. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Consolidated.
Payment Terms. Seller shall issue an invoice to Consolidated on or any time after the completion of delivery and only in accordance with the Terms. Consolidated shall pay all properly invoiced amounts due to Seller within 60 days after Consolidated’s receipt of such invoice, except for any amounts disputed by Consolidated in good faith. All payments hereunder must be in US dollars. Without prejudice to any other right or remedy it may have, Consolidated reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Consolidated to Seller under this Agreement or any other agreement between the parties.
Quantity. If Seller delivers more than 103% or less than 97% of the quantity of Goods ordered, Consolidated may reject all or any excess Goods. Any such rejected Goods shall be returned to Seller at Seller’s risk and expense. If Consolidated 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.
Packaging. All goods shall be packed for shipment according to Consolidated’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. Seller must provide Consolidated prior written notice if it requires Consolidated to return any packaging material. Any return of such packaging material shall be made at Seller’s expense and risk.
DELIVERY. All Goods shall be delivered to the address specified in the Order (the “Delivery Location“) during Consolidated’s normal business hours or as otherwise instructed by Consolidated. Delivery shall be made in accordance with the terms of the Agreement. Seller shall give written notice of shipment to Consolidated when the Goods are delivered to a carrier for transportation. Seller shall provide Consolidated all shipping documents, including the commercial invoice, packing list, bill of lading and any other documents necessary to promptly release the Goods to Consolidated. The Order number must appear on all shipping documents, shipping labels, bills of lading, invoices, correspondence and any other documents pertaining to the Order. Title and risk of loss passes to Consolidated upon delivery of the Goods to the Delivery Location.
Delivery Date. Seller shall deliver the Goods in the quantities and on the date(s) specified in the Order or as otherwise agreed in writing by the parties (the “Delivery Date“). If no delivery date is specified, Seller shall deliver the Goods promptly following its receipt of the Order. Timely delivery of the Goods is of the essence. If Seller fails to deliver the Goods in full on the Delivery Date, Consolidated may terminate the Order immediately by providing written notice to Seller and Seller shall indemnify Consolidated against any losses, claims, damages, and reasonable costs and expenses directly attributable to Seller’s failure to deliver the Goods on the Delivery Date.
Inspection and Rejection of Nonconforming Goods. Consolidated has the right to inspect the Goods on or after the Delivery Date. Consolidated, 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 Consolidated rejects any portion of the Goods, Consolidated 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 Consolidated requires replacement of the Goods, Seller shall, at its expense, promptly replace the nonconforming Goods and pay for all related expenses. If Seller fails to timely deliver replacement Goods, Consolidated may replace them with goods from a third party and charge Seller the cost thereof and terminate the Order. Any inspection or other action by Consolidated under this Section shall not impact Seller’s obligations under the Order, and Consolidated shall have the right to conduct further inspections after Seller has carried out its remedial actions.
Warranties. Seller warrants to Consolidated and its customers and end-users that all Goods will: (a) be free from any defects in workmanship, material and design; (b) conform to applicable specifications, drawings, designs, samples and other requirements specified by Consolidated or published or provided by Seller; (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; and (f) not infringe or misappropriate any third party’s patent or other intellectual property rights. These warranties survive any delivery, inspection, acceptance or payment of or for the Goods by Consolidated. These 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 discovery of the noncompliance of the Goods with the foregoing warranties. If Consolidated or its customer or an end-user of the Goods 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.
Indemnification. Seller shall defend, indemnify and hold harmless Consolidated and Consolidated’s subsidiaries, affiliates, successors and assigns and their respective directors, officers, shareholders and employees and Consolidated’s customers and the end-users of the Goods (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 arising out of or occurring in connection with (i) the Goods purchased from Seller, (ii) Seller’s negligence, willful misconduct or breach of the Agreement, or (iii) any actual or alleged infringement or misappropriation of any intellectual property rights by the Goods. Seller shall not enter into any settlement of any claims subject to indemnification without Consolidated’s prior written consent.
Insurance. Seller represents that it has and maintains commercially reasonable insurance, including without limitation commercial general liability (including product liability), with financially sound and reputable insurers. Upon Consolidated’s request, Seller shall provide Consolidated with a certificate of insurance evidencing such insurance and naming Consolidated as an additional insured. Except where prohibited by law, Seller shall require its insurer to waive all rights of subrogation against Consolidated and the Indemnitees.
Compliance with Law. Seller is in compliance with and shall comply with all applicable laws, regulations and ordinances. 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 Agreement. Seller shall comply with all export and import laws of all countries involved in the sale of Goods under the Order. Seller assumes all responsibility for shipments of Goods requiring any government import clearance. Consolidated may terminate any Order if any government authority imposes antidumping duties, countervailing duties or any retaliatory duties on the Goods.
Termination. Consolidated may terminate any Order, in whole or in part, at any time with or without cause for undelivered Goods on thirty (30) days’ prior written notice to Seller. In addition to any remedies that may be provided under these Terms, Consolidated may terminate an Order with immediate effect upon written notice to Seller if Seller has not performed or complied with any of these Terms, in whole or in part. If Seller becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then Consolidated may terminate the Order upon written notice to Seller. If Consolidated terminates the Order for any reason, Seller’s sole and exclusive remedy is payment for the Goods received and accepted by Consolidated prior to the termination.
Waiver. No waiver by a party of any of provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. 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.
Confidential Information. All non-public, confidential or proprietary information of Consolidated, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Consolidated to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked or 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 Consolidated in writing. Upon Consolidated’s request, Seller shall promptly return all materials received from Consolidated. Consolidated 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 Seller at the time of disclosure; or (c) rightfully obtained by Seller on a non-confidential basis from a third party.
Force Majeure. Neither party shall be liable to the other for any delay or failure in performing its obligations under the Agreement to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party’s fault or negligence, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable (“Force Majeure Event“). Seller’s economic hardship or changes in market conditions are not considered Force Majeure Events. Seller shall use all diligent efforts to end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized and resume performance under the Order. If a Force Majeure Event prevents Seller from carrying out its obligations under the Order for a continuous period of more than 10 business days, Consolidated may terminate this Agreement immediately on written notice to Seller.
Assignment. Seller shall not assign, transfer, delegate or subcontract any of its rights or obligations under the Order without the prior written consent of Consolidated. Any purported assignment or delegation in violation of this Section shall be null and void.
Governing Law; Jurisdiction. All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of New Jersey without giving effect to any choice or conflict of law provision or rule. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the state or federal courts located in New Jersey and the parties accept such venue and jurisdiction and waive all objections thereto, including that of inconvenient forum. The parties hereby waive all provisions of the United Nations Convention on Contracts for the International Sale of Goods which might otherwise be applicable to this Agreement.
MISCELLANEOUS: The rights and remedies under this Agreement 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. The relationship between the parties is that of independent contractors. Nothing contained in these Terms 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. All notices, request, consents, claims, demands, waivers and other communications hereunder shall be in writing and addressed to such address as may be designated by the receiving party in writing. Provisions of this Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Warranties, Indemnification, Insurance, Compliance with Laws, Confidentiality, Governing Law, Jurisdiction and Miscellaneous.