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Purchasing Terms and Conditions

TERMS AND CONDITIONS

1. ACCEPTANCE. This purchase order (“Order”) constitutes Buyer’s offer to Seller. This Order shall be deemed to have been accepted upon Seller’s commencement of performance pursuant to this Order or upon written acceptance by Seller, whichever occurs first. Conditions stated by Seller in acknowledgment of this Order shall not affect Buyer’s offer as presented by this Order, and shall not be binding on Buyer if in conflict with or in addition to, any of the provisions of this Order (including without limitation delivery schedule, price, quantity, specifications and terms and conditions) unless expressly agreed to in writing by Buyer. Buyer objects to any terms in addition to or different from the terms of this Order.

2. LAW AND JURISDICTION. The agreement resulting from the acceptance of this Order is to be construed according to the laws of the State of Ohio. Any suit brought to enforce any provision of this Order or remedy with respect hereto shall be brought in the Common Pleas Court of Franklin County, Ohio and Buyer and Seller expressly consent to the jurisdiction of such court.

3. DELIVERY SCHEDULE. Time is of the essence for this Order. Deliveries are to be made at times specified by Buyer. If Seller fails to make deliveries at the time agreed upon, Buyer preserves the right to cancel, purchase elsewhere, and hold Seller accountable for any additional costs or damages incurred. Buyer shall not be liable for failure to take delivery of goods or services, or render any other performance in the event fire, accidents, labor difficulties, governmental actions, third party failure, or if any other conditions beyond Buyer’s reasonable control render it commercially impractical to do so.

4. SAMPLES AND DRAWINGS. At Buyer’s request, Seller shall submit to Buyer samples and drawings showing in detail the goods to be provided hereunder. Seller will not change the design or method of manufacturing the goods ordered hereunder without Buyer’s prior written approval. If such approval is given, Seller upon Buyer’s request, will designate the redesigned goods with a new designation so as to avoid confusion.

5. EXCUSABLE DELAYS. Except with respect to defaults of subcontractors, Seller shall not be liable for delays or defaults in deliveries due to causes beyond its control and without its fault or negligence. If at any time Seller has reason to believe that deliveries will not be made as scheduled, written notice setting forth the cause of the anticipated delay will be given immediately to Buyer. Any delay due to default of subcontractor will be excusable beyond the control and without the fault or negligence of both Seller and its subcontractor and if Seller establishes that it could not obtain supplies or service from any other source in time to meet the delivery schedule. When Buyer receives notification of a material or indefinite delay, it may be written notification to the Seller modify this Order by agreeing to take available goods in substitution, and/or where the prospective delay substantially impairs the value of this Order, terminate this Order thereby discharging any unexecuted portion thereof.

6. PRICES. Seller’s price shall not be higher than last quoted or charged to Buyer unless otherwise agreed to in writing. Invoices must be rendered for each shipment under this Order on date of shipment.

7. TAXES. Except as may be otherwise provided in this Order, the price includes all applicable Federal, State and local taxes.

8. QUANTITIES. Shipments must equal exact amounts ordered. Unless agreed to by Buyer, Buyer will have no liability for payment for goods delivered to Buyer which are in excess of quantities specified on the face of the Order.

9. WARRANTY. Seller expressly warrants that all the goods and services covered by this Order will be of the highest grade and quality, will conform to the specifications, drawings, samples or other description furnished or specified by Buyer, and will be merchantable, of good material and workmanship, new, and free from defects. Seller expressly warrants that all goods and services covered by this Order, which are the product of Seller, or are in accordance with Seller’s specifications, will be fit and sufficient for the purposes intended. This warranty shall survive any inspection, delivery or acceptance of the goods and services, and payment therefore, by Buyer.

10. INSPECTION. All goods and services shall be received subject to Buyer’s inspection and rejection. Defective goods or goods not in accordance with Buyer’s specifications or this Order will be held for Seller’s instruction and at Seller’s risk and, if Seller so directs, will be returned at Seller’s expense. No goods returned as defective shall be replaced without a new order and schedule. Payment for goods on this Order prior to inspection shall not constitute an acceptance thereof, nor will acceptance remove Seller’s responsibility for latent defects.\

11. INDEMNIFICATION. Seller agrees to defend, protect and save harmless Buyer, its successors, assigns, and users of Buyer’s products, against any and all suits at law or in equity, and from all damages, expenses, including attorney’s fees, claims and demands relating to the goods or services provided hereunder and for any actual alleged infringement of any United States or foreign patent or copyright by reason of the use or sale of goods or services ordered provided that Seller shall not be required to indemnify Buyer from any suits, claims, damages, expenses or demands which result solely and proximately from Buyer’s negligence.

12. BUYER’S PROPERTY. All material, including tools, furnished or specifically paid for by Buyer, shall be the property of Buyer, shall be subject to removal at any time without additional cost upon demand by Buyer, shall be used only in filling orders from Buyer, shall be kept separate from other materials or tools, drawings, specifications and technical data, and shall be clearly identified as the property of Buyer. Seller assumes liability for loss or damage, with the exception of normal wear or tear for such materials and agrees to supply detailed statements of inventory of such materials upon request of Buyer.

13. TOOLS. Unless otherwise therein agreed, Seller at its own expense shall furnish, keep in good condition and replace when necessary all dies, tools, gauges, fixtures, patterns, etc., necessary for the production of the goods ordered. The cost of changes in the aforementioned items necessary to effect design or specification changes ordered in writing by Buyer after the date of this Order shall be a change subject to paragraph 14 below. Buyer has the option to take possession of and tittle to any dies, tools, fixtures, patterns, etc., that are special for the production of goods covered by this Order and shall pay to Seller the amortized cost thereof. This option shall not apply if the goods hereby ordered are the standard product of the Seller or if a substantial quantity of like goods are being sold by Seller to others.

14. CHANGES.
A. Buyer may at any time by written order make changes within the general scope of this Order in any one or more of the following, (i) drawings, designs or specifications, (ii) method of shipment or packing, (iii) quantities of goods or services to be furnished, (iv) place of delivery, and (v) delivery schedules. If any such changes causes any increase or decrease in the cost of the goods or services being acquired under this Order, an equitable adjustment shall be made in the price or delivery schedule, or both; and this Order shall be modified in writing accordingly. Any claim by Seller for adjustment under this clause must be asserted in writing within thirty (30) days from the date of receipt by Seller of the notification of change. Seller shall proceed to complete this Order as changed, on a timely basis; regardless of any dispute as to the amount of any adjustment to which Seller is entitled.
B. Buyer’s personnel may from time to time render assistance or give technical advise to, or exchange information with, Seller’s personnel concerning this Order or the goods or services to be furnished hereunder. However, such assistance, advise, statements or exchange of information shall not constitute a waiver with respect to any of Seller’s obligations or Buyer’s rights hereunder or be authority for any change in the goods or services called for hereunder any such waiver or change to be valid and binding upon Buyer must be in writing and signed by an authorized representative of Buyer’s Purchasing Department. In case of any doubt, Seller should promptly consult Buyer’s Purchasing Department for further instructions.
C. In connection with any claim for adjustment under this clause, Seller shall submit cost data in such form and detail as may reasonably be required by Buyer.
D. Where the cost of property made obsolete or excess as a result of a change is included in Seller’s claim for adjustment pursuant to this clause, Buyer shall have the right to prescribe the manner of disposition of such property.

15. SUPPLEMENTARY INFORMATION. Any specifications, drawings, notes, instructions, engineering notices or technical data referred to in this Order or provided by Buyer shall be deemed to be incorporated herein by reference as if fully set forth, in case of any discrepancies or questions, refer to Buyer’s Purchasing Department for decision or instructions or for interpretation.

16. TITLE TO DRAWINGS AND SPECIFICATIONS. Buyer shall at all times have title to all drawings and specifications furnished by Buyer to Seller and intended for use in connection with this Purchase Order. Seller shall use such drawings and specifications only in connection with this Order and shall not disclose such drawings and specifications to any person, firm or corporation without Buyer’s prior written approval. The Seller shall promptly return all drawings and specifications to Buyer.

17. CONFIDENTIAL INFORMATION. All specifications, drawings, notes, instructions, engineering notices, or technical data provided by Buyer and all information regarding the contents of this agreement and the production of goods or delivery of services pursuant to this agreement (collectively “Buyer’s Confidential Information”) will be the confidential and proprietary information and a trade secret as defined in Section 133.51, Ohio Revised Code, of Buyer or as applicable, Buyer’s customers. Seller will not sue Buyer’s Confidential Information, except in the performance of this Order, will ensure that Buyer’s Confidential Information is not disclosed to any persons, except those of its own employees on a need to know basis. Upon the termination of this Order, Seller will return all of Buyer’s Confidential Information and copies thereof to Buyer.

18. INFORMATION DISCLOSED. Unless otherwise expressly agreed to in writing by Buyer, no information or knowledge, heretofore, or hereafter, disclosed to Buyer, in the performance or in connection with this Order, shall be deemed to be confidential or proprietary, and any such information or knowledge shall be free from any restrictions (other than claim for patent infringement) as p art of the consideration for this Order.

19. SHIPPING AND BILLING.
A. All goods shall be suitably packed, marked and shipped in accordance with the requirements of common carriers in a manner to secure lowest transportation cost and no additional charge shall be made to the Buyer therefore unless otherwise stated herein.
B. No charge shall be made by Seller for dryage or storage, unless otherwise stated herein.
C. Seller shall properly mark each package with Buyer’s order number and where multiple packages comprise a single shipment each package shall also be consecutively numbered. Purchase order number and package numbers shall be shown on packing slips, bills of lading and invoices.
D. Packing slips must accompany each shipment.
E. Seller will describe the goods on the bill of lading or other shipping receipt and will route the shipment in accordance with instructions issued by Buyer.
F. Seller will render invoices in triplicate on day of shipment accompanied by the bill of lading or other shipment receipt.

20. TITLE AND DELIVERY OF GOODS. When goods are purchased FOB Seller’s plant or shipping point, it is agreed between Seller and Buyer that the goods covered by this Order shall not be considered as delivered and title thereto shall not pass until the goods reach the Buyer’s receiving point indicated hereon. However, Buyer assumes responsibility at the FOB point for carrier routing, transportation charges and risk of loss or damages to the goods in transit.

21. STATE APPROVAL OF VEHICLE EQUIPMENT. If the articles covered by this Order require approval for the sale and/or use thereof by a state statute or regulation, Seller certifies it has or will obtain an approval for their sale and/or use from the appropriate agency of each of the states requiring same, and upon request, Seller will submit to Buyer a photostat of each such approval for sale and/or use.

22. DUTY DRAWBACK RIGHTS. This purchase order includes all related customs duty and import drawback rights, if any including rights developed by substitution and rights which may be acquired from Seller’s suppliers which Seller can transfer to Buyer. Seller agrees to inform Buyer of the existence of any such rights and upon request to supply such documents as may be required to obtain such drawback.

23. GOVERNMENT STATUTES AND REGULATIONS. Seller will comply with all applicable Federal, State or local laws, rules, regulations or ordinances pertaining to this Order and/or the goods or services provided hereunder.

24. INSOLVENCY. Buyer may forthwith cancel this Order in the event of the happening of any of the following, or any other comparable event, insolvency of the Seller, the filing of a voluntary petition in bankruptcy, the filing of an involuntary petition to have Seller declared bankrupt provided it is not vacated within thirty (30) days from the date of filing, the appointment of a receiver or trustee for Seller provided such appointment is not vacated within thirty (30 days from the date of such appointment, or the execution by Seller of an assignment for the benefit of creditors.

25. ADVERTISING. Seller shall not, without first obtaining the written consent of Buyer, in any manner advertise or publish the fact that Seller has contracted to furnish Buyer the goods or services herein ordered and for failure to observe this provision, Buyer shall have the right to terminate this Order without any obligation to accept deliveries after the date of termination or make further payments except for completed articles delivered prior to termination.

26. INSURANCE. Seller shall procure and maintain insurance with Buyer as an additional insured, insuring against any and all public liability, including injuries or death to persons or damage to property, arising out of the goods or services provided hereunder. Such insurance will be maintained for not less than five (5) years from the date hereof and shall be written by a company with a Best rating of A or A+. Seller shall provide Buyer with a certificate of such insurance coverage, or if requested by Buyer, copies of the insurance policies. The insurance limits shall not be less than $2,000,000 for each occurrence with an aggregate limit of not less than $5,000,000 for all occurrences. The maximum deductible shall not be less than $25,000. Each policy will provide that it shall not be canceled or terminated or the coverage reduced without at least thirty (30) days written notice to Buyer.

27. ASSIGNMENT. Neither this Order nor any interest under it shall be assigned by Seller without the prior written consent of Buyer, except the claims for monies due or to become due under this Order may be assigned by Seller without such consent, and subject to the provisions of this paragraph. Buyer shall promptly be furnished with two signed copies of such assignment. Payment to an assignee of any such claim shall be subject to set off or recoupment for any present or future claim or claims which Buyer may have against Seller, except to the extent that any such claims may be expressly waived in writing by Buyer. Buyer reserves the right to make direct settlements and/or adjustments in price(s) with Seller, notwithstanding any assignment of claims for monies due or to become due hereunder without notice to the assignee.

28. TERMINATION.
A. Buyer may at any time terminate this Order in whole or part, by written notice, whereupon Seller shall terminate work pursuant to the terms of such notice.
B. If goods ordered are made specially for Buyer and cannot be sold to other purchasers, Seller shall promptly advise Buyer of the quantities of applicable work and material on hand or purchased prior to termination and the most favorable disposition that Seller can make thereof. Seller shall comply with Buyer’s instructions regarding disposition of such work and material. All claims by Seller based on such termination must be asserted in writing and in full, within ninety (90) days from the date of notification of the termination. Upon termination under this paragraph, Buyer will pay Seller the purchase order price of finished work and the cost to Seller (excluding profit or loss) of work in process and raw material, less, however, (i) the agreed value of any items used or sold by Seller with Buyer’s consent and (ii) the reasonable value or cost (whichever is higher) of any defective damaged or destroyed goods or materials and any items sold or used by Seller without Buyer’s consent. Buyer will make no payments for finished goods, work in process, or raw material fabricated or procured by Seller unnecessarily in advance or in excess of Buyer’s delivery requirements. The payment provided under this clause shall constitute Buyer’s only liability in the event this Order is terminated as provided herein. The foregoing provisions of this clause shall not apply to any termination by Buyer for default of Seller or under the following provisions of this clause.
C. To the extent this Order covers goods normally carried in inventory by Seller (as distinguished from items specially made to Buyer’s specifications), Buyer shall have no liability for any termination of this Order, in whole or in part prior to actual shipment, or for any termination, within ten (10) days after receipt of goods by Buyer, its liability shall be limited to returning said goods and reimbursing Seller for direct cost of handling and transportation.

29. QUALITY CONTROL REGULATION. The Supplier Quality Manual from time to time issued by Yusa Corp. and transmitted to Seller is and will be incorporated herein and will be applicable to the Seller. For the purpose of such incorporation, Seller will be deemed to be the “Seller” and subject to all the obligations of the Seller under the Regulation and the Buyer will be deemed to be the “Buyer” and entitled to all the rights of the “Buyer” under the Regulation.

30. REMEDIES. The remedies herein reserved shall be cumulative and additional to any other or further remedies provided in law or equity. No waiver of a breach of any provision of this Order shall constitute a waiver of any other breach, or of such provision.

31. Seller shall never modify agreed upon packaging specs., without prior approval of Buyer.

32. Verification of purchased product at Seller’s facility by Yusa Corp. and its customers is hereby incorporated.

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