Terms and Conditions of Purchase
HYDRITE CHEMICAL CO.
TERMS AND CONDITIONS OF PURCHASE
- Acceptance of Terms and Conditions Without Changes. These Terms and Conditions of Purchase, together with the terms set forth in the Purchase Agreement, being submitted by Hydrite Chemical Co. (“Hydrite”) to the Supplier of the goods and services identified therein (collectively, the “Products/Services”), constitute the complete and final agreement between Hydrite and Supplier with respect to such Products/Services (such Purchase Agreement and these Terms and Conditions of Purchase being referred to herein as “this Agreement”). Any conduct by Supplier recognizing the existence of this Agreement (including without limitation acknowledgment or shipment) shall be deemed an acceptance by Supplier without exception to the terms and conditions of this Agreement. Additional or different terms already or hereafter proposed by Supplier, whether in a quotation, acknowledgment, invoice, or otherwise, are rejected and shall not apply. No change to this Agreement shall be binding unless agreed to in a writing signed by an officer of Hydrite.
- Changes. Hydrite may at any time make changes to drawings, designs, specifications, materials, packaging, time and place of delivery, method of transportation, or other terms of this Agreement, which changes shall be immediately implemented by Supplier. If any such change causes an increase or decrease in the cost, or the time required for the performance, an equitable adjustment shall be made and this Agreement shall be accordingly modified in writing. Supplier agrees to accept any and all such changes, subject to the preceding sentence.
- Termination For Convenience of Hydrite. Hydrite may at any time terminate this Agreement or any part hereof for its sole convenience. In the event of such termination, Supplier shall immediately stop all work and shall immediately cause its suppliers or subcontractors to cease such work. Supplier shall be paid for the work performed prior to the termination notice. Supplier shall not be paid for any work performed after receipt of the termination notice, except to the extent necessary to effect termination. Any claims under this section must be asserted in writing in detail within thirty (30) days after receipt of Hydrite’s termination notice.
- Termination For Cause. Hydrite may cancel this Agreement without penalty: (a) if Supplier fails to comply with the specifications or the terms and conditions of this Agreement; (b) if delivery is delayed beyond the requested delivery date; (c) if a petition in bankruptcy is filed by or against Supplier, Supplier is declared insolvent or has a receiver or trustee appointed for it or its assets, or if Supplier makes an assignment for the benefit of creditors or commences proceedings under any federal or state insolvency or similar law; or (d) if Hydrite encounters any labor disputes, governmental orders or actions, unavailability of transportation, fires, floods, breakdowns of essential machinery, accidents, or other cause beyond its control which affects its ability to receive and use the Products/Services.
- Delivery. Time Is Of The Essence with respect to Supplier’s obligations hereunder; if delivery of the Products/Services is not completed by the specified delivery date, Hydrite reserves the right, in addition to its other rights, to return the Products/Services or terminate all or part of this Agreement and charge Supplier with all costs, expenses, and damages associated with such return or termination, including but not limited to a full refund of any amount already paid to Supplier by Hydrite. Supplier shall strictly comply with delivery instructions contained in this Agreement; if none are stated, the Products/Services shall be delivered FOB Hydrite’s facility designated by Hydrite. Hydrite may delay delivery or acceptance for causes arising beyond its control.
- Inspection and Acceptance. All Products/Services are subject to Hydrite’s final inspection and approval. Hydrite shall have a reasonable time to inspect the Products/Services after delivery at their destination. Upon notice, Hydrite may make inspection visit(s) at the site where the Products/Services are being designed, manufactured, provided, or performed. If Hydrite determines that part of the Products/Services are not in accordance with Hydrite’s specifications, Hydrite has the right to reject any such Products/Services and is permitted to cancel any undelivered portion of this Agreement. Products/Services rejected or those which are supplied in excess of the quantities or the scope called for herein may be returned to Supplier at Supplier’s expense or may remain unpaid. Payment for the Products/Services prior to inspection and approval shall not constitute acceptance thereof, and shall be made without prejudice to any and all claims that Hydrite may have against Supplier. In the event the Products/Services must be installed, tested, inspected, or assembled prior to commercial use, they shall not be deemed finally accepted until such installation, testing, inspection, or assembly indicates that the Products/Services are approved in accordance with the specifications and are operating properly.
- Packaging and Shipping. All packages shall be clearly marked with an appropriate description of the Products/Services, the purchase order number for such Products/Services, the part number(s), and quantity of items contained within each package. No additional charges of any kind, including charges for boxing, packaging, cartage, or other extras shall be added unless specified on the face of this Agreement.
- Materials Furnished. If Hydrite furnishes any material for fabrication hereunder, Supplier: (a) agrees not to substitute any other material in such fabrication without Hydrite’s prior written consent; (b) agrees that title to such material shall not be affected by incorporation in or attachment to any other property; and (c) agrees to state and warrant in writing on its shipper and invoice for final parts that all material furnished by Hydrite under this Agreement (except that which became normal industrial waste or was replaced at Supplier’s expense) has been returned in the form of parts and unused material. Proceeds of scrap salvage shall accrue to Supplier and are reflected in the prices stated herein. Supplier will use any designs, tools, patterns, drawings, information, and equipment furnished by Hydrite only in the performance of this Agreement unless Hydrite’s prior written consent is obtained. Supplier agrees that no inaccuracy in tools or fixtures which Hydrite furnishes shall excuse performance that is not in strict accordance with the specifications. The contract price includes the cost of tooling (including gauges, jigs, fixtures, dies, molds, tools, patterns, and the like) that may be created or acquired by Supplier for use in the manufacture, fabrication, assembly, or delivery of the Products/Services called for herein and, unless otherwise specified, title to such tooling shall pass to Hydrite upon its creation or acquisition and will remain in Hydrite. Supplier shall deliver such tooling to Hydrite upon request.
- Taxes. Unless otherwise specified on the face of this Agreement, the prices herein include all applicable federal, state, and local taxes, customs, duties, and fees of every kind and nature, including, without limitation, sales and use taxes.
- Indemnification. Supplier shall defend, indemnify, and hold harmless Hydrite its affiliates, officers, directors, employees, agents, customers, other suppliers, and subcontractors against all damages, claims, costs, and expenses (including attorneys’ fees) arising out of or resulting from any act or omission of Supplier, its agents, employees, or subcontractors or which otherwise arises as a result of Supplier’s performance of this Agreement including, without limitation, all liabilities to Hydrite, its affiliates, officers, directors, employees, agents, customers, other suppliers, and subcontractors.
- Compliance With Law. Supplier warrants that all Products/Services provided hereunder have been produced and performed in compliance with all applicable local, state (or province), federal, and foreign laws, rules, regulations, standards, and codes including, but not limited to, the Fair Labor Standards Act, environmental protection laws, including, but not limited to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Resource Conservation and Recovery Act (RCRA), the Toxic Substances Control Act (TSCA), the Clean Water Act (CWA), the Clean Air Act (CAA) and the Emergency Planning and Right to Know Act (EPCRA), and similarly applicable state laws, transportation laws, and occupational health and safety laws. For orders within the United States, Supplier’s invoices shall contain a certification substantially as follows: “Supplier represents that these Products/Services were produced and provided in compliance with all applicable requirements of the Fair Labor Standards Act and of regulations and orders of the U.S. Department of Labor issued thereunder.” Supplier warrants that it shall not do anything which would cause the work environment for Hydrite’s customers, agents, or employees not to be in compliance with the law. If Supplier is located in the United States or if the work is to be performed in the United States, Supplier also warrants that it shall at all times comply with applicable provisions relating to obligations of government contractors and subcontractors, which are incorporated in this Agreement by reference, including without limitation the OFCCP Rules and Regulations, 41 CFR 60-1, et. seq. (including the reporting, record keeping and affirmative action program requirements) incorporating the Equal Opportunity Clause of Executive Order 11246, the maintenance of nonsegregated facilities, the Vietnam Era Veteran’s Readjustment Act of 1974, The Rehabilitation Act of 1973, Executive Order 11701 relating to the employment of veterans, and Executive Orders 11625 and 12138 relating to participation by minority and women-owned businesses and the utilization of concerns owned and controlled by socially and economically disadvantaged individuals.
- Warranties. Supplier warrants that all Products/Services delivered and provided shall (a) be new and of first quality; (b) be merchantable and free from defects in materials and workmanship; (c) conform to specifications, descriptions, and other conditions specified by Hydrite; (d) be performed by competent and qualified personnel in a proper and workmanlike manner; (e) be free from liens and encumbrances with good title conveyed upon payment of the purchase price; (f) be fit and safe for their intended purpose; and (g) be approved by qualified licensed professionals in the event professional design work is involved. Supplier also warrants that it shall obtain and assign or otherwise provide to Hydrite the benefits of warranties and guarantees provided by manufacturers or suppliers of material or equipment incorporated into the Products/Services, and shall perform its responsibilities so that such warranties or guarantees remain in full effect.
Supplier agrees to promptly replace or otherwise correct, without expense to Hydrite, any of the Products/Services which do not conform to the foregoing warranties. In the event that Supplier fails to promptly make such replacement or correction, Hydrite may cause such replacement or correction to be made and charge Supplier for all expenses associated therewith. The foregoing warranties and remedies shall be in addition to any warranties or remedies provided by law and shall survive inspection, test, acceptance, approval, and payment.
- Warranty Against Infringement Of Intellectual Property Rights; Indemnification. Supplier warrants that neither the sale nor use of the Products/Services provided pursuant to this Agreement will infringe upon any U.S. or foreign patent, copyright, trademark, or any other intellectual property right (collectively, “Property Rights”). Supplier will defend every claim, demand, or legal proceeding against Hydrite, its affiliates, officers, directors, employees, agents, customers, or anyone selling or using any of the Products/Services which alleges that the Products/Services sold hereunder infringe any such Property Rights or constitute unfair competition or trade secret violations; and Supplier will indemnify and hold harmless Hydrite, its affiliates, officers, directors, employees, agents, and customers from all costs and expenses (including attorneys’ fees) which Hydrite incurs in defending any such claim, demand, or suit, together with all liabilities, judgments, costs, damages, and profits recoverable therein. Hydrite shall have the right to employ, at Supplier’s expense, counsel on its own behalf, and shall have the right to participate in the defense of such claim, demand, or legal proceeding.
- Intellectual Property License. If any experimental, developmental, or research work is called for or required hereunder, Supplier agrees to and hereby does grant to Hydrite an irrevocable, non-exclusive, fully transferable, royalty-free license to make, have made, use, and sell any invention, improvement, or discovery (whether or not patentable) that Supplier conceives or first actually reduces to practice in performing this Agreement. Supplier agrees to and hereby does grant to Hydrite (a) an irrevocable, non-exclusive, fully transferable, royalty-free license to reproduce, translate, publish, use and dispose of, and to authorize others to do so, any copyrighted or copyrightable material or service ordered as Products/Services or incorporated in or supplied as a supplement with any Products/Services; and (b) the right to reproduce, use, and disclose for any purpose all or any part of the reports, drawings, blueprints, data, and technical information provided or specified to be provided by Supplier to Hydrite under this Agreement.
- Proprietary Information; Confidentiality; Advertising. All information furnished by Hydrite, by any other person acting on behalf of Hydrite, and all information learned or observed about Hydrite or its operations through performing this Agreement is confidential and Supplier shall not disclose any such information to any other person, or use such information for any purpose other than for performing this Agreement without Hydrite’s express written consent. All information in tangible form, including drawings, samples, models, specifications, or other documents provided by Hydrite or prepared by Supplier for Hydrite shall be returned to Hydrite promptly upon request. Supplier shall not publicize the fact that Hydrite has contracted to purchase Products/Services from Supplier, nor shall any information relating to this Agreement be disclosed without Hydrite’s written consent. Unless otherwise agreed in writing, no information disclosed by Supplier to Hydrite shall be deemed confidential and Supplier shall have no rights against Hydrite with respect to Hydrite’s use thereof.
- Liens. Supplier agrees that it shall not file any liens as a result of the Products/Services hereunder and that it shall not permit its subcontractors or other suppliers to file such liens. When requested, Supplier shall provide Hydrite with lien waivers for itself, its subcontractors, and other suppliers in a form satisfactory to Hydrite. Hydrite may withhold any payment(s) otherwise due until it has received reasonable assurances that all of Supplier’s obligations respecting the Products/Services have been paid. If a lien is filed, Supplier shall cooperate fully with Hydrite, at Supplier’s expense, to cause the lien to be removed.
- Insurance. Supplier shall obtain and maintain in force one or more continuous commercial liability insurance policies, with an endorsement in form reasonably satisfactory to Hydrite naming Hydrite as an additional insured, that: (a) insure against bodily injury (including death) and property damage caused by the Products/Services with limits not less than $1,000,000 per occurrence and an annual aggregate of not less than $2,000,000; (b) contain products and completed operations coverages with an annual aggregate of not less than $2,000,000; and (c) contain a contractual liability endorsement. Supplier shall maintain auto liability with a combined single limit of not less than $1,000,000 and cargo coverage in the amount of $100,000 per shipment; pollution liability with limits not less than $2,000,000 per claim; excess/umbrella liability policy with limits of not less than $3,000,000 per occurrence and an annual aggregate of not less than $3,000,000; professional liability with limits not less than $1,000,000 per occurrence; statutory workers’ compensation coverage; and employer’s liability with limits not less than $1,000,000 per occurrence. Upon request Supplier will provide Hydrite with one or more certificates evidencing such insurance coverage, and any related endorsements and policies. Any insurance required to be carried by Supplier, with the exception of workers’ compensation, shall list Hydrite as an additional insured and shall be primary, not excess, to any other insurance carried by Hydrite. In the event Supplier fails to keep in effect at all times said insurance coverage, Hydrite may, in addition to any other remedies it may have, terminate this Agreement and hold Supplier responsible for any resulting damages.
- Independent Contractor. Supplier, its subcontractors and other suppliers, shall at all times be independent contractors and no express or implied representations to the contrary shall be made. Supplier shall at all times retain exclusive liability for wages and all employment-related obligations due its employees and shall indemnify Hydrite for any liability arising therefrom.
- Statute of Limitations. All rights of Supplier to commence any court action or proceeding with respect to this Agreement shall terminate one (1) year after the cause of action has accrued.
- Labor Disputes. Whenever Supplier has knowledge that any present or potential labor dispute is delaying or threatens to delay the timely performance of this Agreement, Supplier shall immediately give notice thereof, including all information relevant thereto to Hydrite, and if this Agreement is issued under a Government prime contract, or subcontract thereunder, such notice shall also be given to the nearest representative of the Government Department concerned.
- Miscellaneous. (a) This Agreement and the parties’ performance hereunder shall be governed by the courts and the internal laws of the State of Wisconsin (including the Uniform Commercial Code as adopted), without giving effect to its conflict of laws principles; (b) no remedy provided herein shall be exclusive of any other remedy hereunder or provided by any applicable law; (c) the invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any of the other provisions of this Agreement; (d) this Agreement shall not be assigned by Supplier, and Supplier shall not delegate in any manner to any other person the performance of any work or the supplying of any Products/Services under this Agreement, in either case without the prior written consent of Hydrite; (e) Hydrite’s failure to insist on performance of any of the terms of this Agreement, its failure to exercise any right or privilege, or its waiver of any breach hereunder shall not effect a waiver of any other right or privilege, whether of the same or similar type; (f) in the event Hydrite is involved in any litigation with respect to this Agreement, Hydrite shall recover from Supplier its costs and attorneys’ fees incurred in enforcing or defending its rights hereunder; and (g) captions preceding particular sections are for convenience only and are not to be construed as part of this Agreement or as a limitation of the scope of a particular section to which they refer. If Supplier is a supplier located outside the United States, then: (i) the 1980 United Nations Convention on Contracts for the International Sale of Goods shall not apply; and (ii) except as otherwise specified, all customs fees, import duties, cargo insurance, taxes, and other charges imposed on or relating to the purchase or sale of the Products/Services shall be paid by Supplier, and prices include all commercial export packaging.