Last updated date: 10/14/2024
General Terms and Conditions of Purchase
Orders:
This purchase order constitutes an offer by Hodell-Natco Industries, an Ohio Corporation (“HNI”) and the party to whom the order is addressed (“Seller”) to purchase the goods or services (collectively, “Goods”) designated on the face of the purchase order or other documentation (“Order”) to which these Terms and Conditions of Purchase are attached. Unless the parties have a fully executed agreement currently in effect as of the date of the Order, this Order together with these Terms and Conditions of Purchase (collectively, the “Agreement”) shall constitute the entire agreement between the parties and supersedes all prior representations, communications, quotations, proposals, orders, agreements or understandings between the parties regarding the subject matter hereof. HNI’s Order is made expressly conditioned on Seller’s acceptance of this Agreement. Confirmation order, invoices or other documents submitted by Seller with terms that in any way try to modify, add to, or are inconsistent with these Terms and Conditions of Purchase are hereby expressly rejected, shall be deemed material alterations to HNI’s Order and shall be of no force and effect. Acceptance of this Agreement will be deemed to occur upon the earlier of: (i) Seller’s written acceptance of an Order; (ii) any action undertaken by Seller in performance of the terms of the Agreement; or (iii) delivery of the Goods to HNI.
Quantity; Forecasts:
If HNI provides Seller with any estimates, forecasts, or projections for HNI’s future anticipated volume requirements for Goods, Seller hereby acknowledges and agrees that such estimates, forecasts or projections are provided for informational purposes only, are subject to evolve over time, and are not binding upon HNI. Any shipping expenses that are a result of Seller’s backorder shall be paid by Seller, unless otherwise authorized by HNI in writing.
Shipping and Delivery:
Seller shall prepare, pack, mark, and ship the Goods in accordance with HNI’s requirements and route shipments in accordance with HNI’s instructions. Seller shall be responsible for all charges for preparations, packing, crating, storage, cartage, handling, and shipping unless otherwise stated in the Order. HNI shall have the right, without penalty or liability to Seller, to reschedule or postpone delivery of the Goods. If for any reason, HNI is unable to accept delivery of the Goods at the time when they are due for delivery, then Seller shall, if its facilities permit, store the Goods in a secure manner until HNI is ready to accept delivery. Seller shall comply with all applicable regulations and other legal requirements in connection with the manufacturing, packaging, packing, and delivery of the Goods. The Goods shall be properly packed and secured in such a manner as to reach their destination in good condition under normal conditions of transport. Shipping documents, such as the bill of lading and Seller’s packing list must accompany each shipment. Seller shall bear the risk of loss until the Goods are delivered and accepted by HNI. Under no circumstances shall HNI be obligated to return any packaging or packing materials for the Goods to Seller, regardless of whether any Goods are accepted by HNI.
Time:
Seller shall deliver the Goods in the quantities and at the time specified in the Order. Time is of the essence in connection with Seller’s performance under this Agreement. Seller shall promptly provide notice to HNI of any delay in delivery of the Goods. Seller acknowledges and agrees that any late or nonconforming delivery of Goods may obligate Seller to pay HNI direct, incidental and consequential damages as result thereof. If Seller’s acts or omissions are the cause of Seller’s failure to meet HNI’s delivery requirements, then HNI may terminate the Order for default and procure cover Goods from another supplier and charge Seller the difference between the price of the cover goods and the price of Seller’s Goods. Except in the case of a default, HNI shall have the option to require Seller to expedite the shipping of the Goods at Seller’s expense where Seller’s negligence is the cause of the failure or delay.
Price; Invoicing; Payment Terms:
All prices shall be expressed in U.S. dollars unless otherwise agreed upon in writing by HNI. Payment terms will be mutually agreed upon in writing between HNI and Seller and noted on HNI’s Order. Seller shall provide its invoice no earlier than upon shipment of the Goods or completion of the services, as applicable, to HNI. Seller’s invoice shall contain HNI’s purchase order number, a description of the Goods and the quantity of Goods shipped, if applicable. All prices quoted for Goods shall be Ex Works (HNI’s facility), unless otherwise agreed upon in writing and noted on HNI’s Order. Prices quoted by Seller shall include all sales, excise, municipal, state or other governmental taxes. All taxes and other governmental charges on the production, manufacture, distribution, sale or use of the Goods, to the extent required or not forbidden by law to be paid by Seller, shall be paid by Seller.
Changes; Cancellation:
Unless otherwise agreed upon in writing by HNI in an Order, HNI may make changes to or cancel any Order upon written notice to Seller. In the event that a change made by HNI impacts the schedule or cost of the Goods, then Seller shall promptly inform HNI of the impact within a period not to exceed five (5) calendar days of HNI’s notice of the change and the parties thereafter shall mutually agree on an equitable adjustment. In the event that HNI cancels an Order pursuant to this Section, then HNI shall only be responsible for the cost of any finished Goods or work in process that cannot be reasonably sold to another customer of Seller. Seller shall have a duty to mitigate any damages in connection with a cancellation.
Inspection; Rejection:
In connection with any Order, HNI shall have the option, but no obligation, to inspect or test the Goods for compliance with the requirements in the Order. These inspection rights, include, without limitation, the option to have a sample of the Goods sent to a third-party laboratory for testing, at HNI’s expense; provided, however, that if such third-party testing report determines that the Goods fail to adhere to the specifications under an Order, then such testing, including shipping costs in connection therewith, shall be borne by Seller. HNI’s inspection shall not be deemed as any waiver or modification of this Agreement whatsoever. Where testing is required by Seller in connection with an Order, Seller shall provide all necessary documentation to show that the Goods meet any applicable requirements under an Order. HNI shall have a reasonable time after delivery of the Goods to inspect such Goods for any patent defects. Where any such Goods are non-conforming or defective, HNI shall have the option to reject acceptance and return the Goods to Seller at Seller’s sole cost and risk. If the non-conforming or defective goods cannot be cured within the timetable specified for delivery for the Goods, HNI shall be permitted to treat such as an untimely delivery and pursue its remedies as set forth in this Agreement and applicable law.
Warranties:
Seller represents and warrants to HNI that the Goods under each Order shall: (a) conform to the specifications in the Order, including, without limitation, the quality standards and description contained therein; (b) be free of all defects in design, materials, and workmanship; (c) conform to any samples, drawings, or specification provided by Seller in connection with the Order; (d) meet any performance or other standard that is specified in the Order; (e) comply with all applicable laws related to the Goods; (f) be free of any liens, encumbrances, security interests, or other property rights at the time of delivery of the Goods to HNI; and (g) not infringe upon or otherwise violate any patent, copyright, or other intellectual property right of a third party, except that Seller shall have no duty to indemnify where the specific design was mandated by HNI to be used by Seller in the manufacturing of the Goods. The warranty period for the Goods shall continue for the longer of: (x) any period of time provided by applicable law where the Goods will be used; or (y) the warranty that HNI provides to its customers. In the event of a breach of warranty, Seller shall, at HNI’s option: (i) replace the non-conforming goods with Goods that conform to the warranty in this Section; or (ii) refund the purchase price paid by HNI for such non-conforming Goods. The foregoing remedy is in addition to any other remedies that may be available at law or in equity to HNI for a breach of warranty. Seller hereby acknowledges and agrees that it shall respond to any warranty or quality issues promptly, within twenty-four (24) hours of notice from HNI and shall maintain regular and ongoing communication with HNI to promptly resolve all such issues. Where HNI determines, in its sole discretion, that a breach of warranty regarding quality is of the nature that it has lost confidence in Seller’s capability to resolve the issue or where Seller has not promptly responded to HNI’s communications regarding such issues, then HNI shall have the right to immediately terminate the Order for default and to charge Seller the costs incurred by HNI to procure goods from another supplier that adhere to the terms of the Order. The return of any non-conforming goods to the Seller will be entirely at the risk and expense of Seller. If Seller initiates a recall for Goods sold hereunder, then Seller shall reimburse HNI for all its expenses in connection with facilitating such a recall with HNI’s customers. If HNI must initiate a recall of any of Seller’s Goods due to quality issues with Seller’s Goods, then HNI shall have the right to seek indemnity from Seller for all of HNI’s costs and expenses incurred as a result thereof.
Tooling:
If HNI provides Seller with any tools, equipment, technology, documentation in relation to any of the foregoing, or otherwise pays for an object, data or technology to be used by Seller in connection with the manufacturing of the Goods, including any accessions, attachments, parts, accessories, substitutions, replacements, and appurtenances thereto (collectively, “Tooling”), then during the term of this Agreement, HNI grants Seller a limited, non-exclusive, paid-up, revocable, non-transferrable license to use Seller’s intellectual property contained in such Tooling for the sole purposes of manufacturing the Goods. Seller agrees to take possession of Tooling and maintain such Tooling in good condition, fully covered by insurance, free of liens and encumbrances and will replace and repair any such Tooling when it is lost, damaged, or destroyed. If a lien, security interest, encumbrance, or claim of any nature is imposed on the Tooling through Seller or as a result of Seller’s actions, Seller will, to the extent permitted by law, immediately take all actions necessary to remove such lien, security interest, encumbrance or claim. Seller shall not re-locate any Tooling without HNI’s prior written consent. Tooling is and will, at all times, remain the sole and exclusive property of, and is being held by Seller as a bailee at will for HNI. Seller will mark and identify Tolling as property of HNI and acknowledges that title to Tooling remains with Seller and is subject to Seller’s direction and control. Seller expressly acknowledges and agrees that Tooling shall only be used for the benefit of HNI and not Seller or any third party. Seller shall have no right to retain Tooling. Upon request from HNI or upon expiration or termination of this Agreement, HNI shall have the right to enter upon Seller’s premises to remove all Tooling, without recourse to any legal proceeding.
Insurance:
For the duration of any Order and any applicable warranty and statute of limitations period thereafter, Seller agrees to procure and maintain, at its sole cost and expense: (a) commercial general liability insurance, including coverage for completed operations, product liability, advertising injury, death, personal bodily harm, and property damage in an amount of at least $1 million per occurrence and $2 million in the aggregate; and (b) excess liability or umbrella insurance in a coverage amount of at least $4 million. The insurance policies required by this Section shall be primary and not excess over or require any contribution from any valid insurance maintained by HNI. Such policies shall name HNI as an Additional Insured and shall waive any subrogation right. Seller shall be responsible for all premiums, deductibles, co-insurance, self-insurance, and amounts owed in excess of policy limits. Upon request by HNI, Seller shall supply HNI with a certificate of insurance that demonstrates Seller’s compliance with the insurance requirements in this Section. Nothing contained in this Section shall be construed to limit Seller’s liability under this Agreement.
Confidentiality:
In the event that the parties have executed a confidentiality or non-disclosure agreement, then the terms and conditions of that fully executed agreement will apply and control the confidentiality obligations between the parties. If there is no confidentiality agreement between the parties, then the terms of this provision shall control. Seller acknowledges and agrees that it may have access to certain non-public, confidential, or proprietary information of HNI, whether conveyed orally, in writing, or any other format and regardless of whether marked “confidential” or “secret”, including, without limitation, specifications, customer information, drawings, know how, business information, financial information, testing information, supplier information, reports, memorandum, compilations, and other information that a party would reasonably believe to be confidential (collectively, “Confidential Information”). Confidential Information shall not include information, which at that: (a) at the time of disclosure is publicly available, or after disclosure becomes a part of the public domain without breach of this Agreement by Seller or its Representatives; (b) was known to the Seller prior to its receipt from HNI as shown by Seller’s written records; or (c) is developed by Seller independently and without reference to or use of Confidential Information. Seller shall only use Confidential Information for the purposes of performing its obligations under this Agreement and not for its own benefit or that of a third party, provided, however, that Seller may disclose Confidential Information to those of its employees, agents, and representatives (collectively, “Representatives”) who require such Confidential Information for their job function and who agree to be bound by the terms of this Section. Seller shall remain liable for any breach of this Section by its Representatives. Seller shall maintain confidentiality over the Confidential Information for the duration of this Agreement and for two (2) years thereafter; provided, however, that the confidentiality obligation over any information that is a trade secret shall remain for so long as it is a trade secret under applicable law. Upon HNI’s request or expiration or termination of this Agreement, Seller shall, at HNI’s option, either return or destroy all Confidential Information. For any breach or threatened breach of Sections 9 or 11, Seller acknowledges and agrees that HNI would suffer irreparable harm for which monetary relief would be an insufficient remedy. Therefore, in the event of any breach or threatened breach of Sections 9 or 11, Seller agrees that HNI may see a protective order or other injunctive relief without the necessity of establishing that monetary damages are an insufficient remedy or the requirement to post a bond or other security.
Indemnification:
Seller shall fully defend, indemnify, and hold HNI, including its officers, directors, employees and representatives harmless, from and against any and all claim, suits, demands for damages, causes of action and other proceedings and pay all liabilities, orders, damages, losses, judgments, orders, penalties, fines, interest, cost and expenses (including attorney’s fees and court costs) whatsoever incurred as a result therein, arising out of or in connection with: (a) any claim that the Goods provided hereunder infringe or otherwise misappropriate any patent, copyright, or intellectual property right of a third party; (b) any personal injury, death, or property damage caused by the negligence or willful misconduct of Seller, including any manufacturing or design defect in the Goods; (c) any third party claim in connection with Seller’s breach of this Agreement; or (d) any violation of applicable law in connection with Seller’s obligations under this Agreement. Where HNI seeks the defense of any claim hereunder, HNI shall promptly inform Seller and Seller shall thereafter promptly confirm that it will undertake the defense using counsel reasonably acceptable to HNI. Seller shall not settle any claim hereunder unless it includes a complete release of liability for HNI, contains no admission of guilt or liability by HNI, and does not obligate HNI to pay any money to a third party.
Cumulative Remedies; Set-Off:
The rights and remedies provided in 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. HNI shall be entitled to set-off any amounts owed to it by Seller against any sum due from HNI to Seller.
Compliance with Laws:
Seller acknowledges and agrees that HNI refuses and prohibits any direct or indirect business with Cuba, Iran, North Korea, Syria, Russia, Belarus, sanctioned regions of Ukraine, or any other country or region as this list may be updated from time to time by HNI. Seller shall not do business with any individual or entity in the foregoing countries in connection with its performance under any Order. Seller shall comply with all applicable laws and regulations regarding the sale, supply, transfer, export, re-export, transfer or re-transfer of any Goods, including, but not limited to trade sanctions and export controls. Seller shall not take any act or omission that causes HNI to directly or indirectly, risk any potential violation of any trade sanctions or export control laws of the United States and United Nations. Seller shall not seek to evade or circumvent any trade sanctions or export control laws. Seller certifies that as of the date of the Order, neither Seller nor its parent, subsidiary, or affiliates is a Restricted Person, as defined by the United States Government. Seller shall immediately notify HNI should Seller or any of its parent, subsidiary, or affiliated companies become or have reasonable cause to believe that they may become a Restricted Person. Seller shall defend, indemnify, and hold HNI harmless from and against any and all losses, claims, causes of action, damages, liabilities and expenses arising out of its non-compliance with this Section.
Subcontracting; Assignment:
Seller shall not subcontract any part of an Order without the prior written consent of HNI. Any such consent to a subcontractor shall not impact Seller’s liability under this Agreement. Any act, omission, or breach of this Agreement by Subcontractor shall be construed as a breach of this Agreement by Seller. Seller shall not assign, delegate, or otherwise transfer this Agreement without the prior written consent of HNI.
Governing Law; Disputes:
All transactions under this Agreement shall be governed by and construed in accordance with the laws of the State of Ohio, without regard for any conflict of law rules or procedures that would result in the application of laws other than those of the State of Ohio. The parties hereto expressly agree that the United Nations Convention on the International Sale of Goods shall not apply to this Agreement. In the event of any dispute, controversy, matter of interpretation, or other proceeding arising out of or in connection with this Agreement, the parties irrevocably consent to the exclusive personal jurisdiction of the state and federal courts in and for Cuyahoga County, Ohio and irrevocably waive any claim or challenge that the jurisdiction of or venue in such courts is improper or inconvenient.
Miscellaneous:
If any provision of this Agreement is determined to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such a determination shall have no effect on any other provision of this Agreement, which shall continue in full force and effect. This Agreement 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 person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement. No waiver by a party of any of the provisions of this Agreement is effective unless explicitly set forth in a writing and signed by the party against whom enforcement is sought. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. The relationship between the parties is that of independent contractors and the parties will represent themselves as such in all respects. Nothing contained in this Agreement 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. This Agreement may not be amended except in a writing signed by duly authorized representatives of the parties, which in the case of HNI, only an officer will be deemed an authorized representative. The parties hereto agree that Sections 1, 3, 5-13, 16 and 17 shall survive expiration or termination of this Agreement.