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Formation, Acceptance, Modification.
1.1 Formation. A purchase order issued by Bastian Solutions, LLC (“Purchaser”) and any specifications, drawings, and/or other documents included by Purchaser shall incorporate these terms and conditions. Any terms and conditions offered by Seller are hereby rejected. The PO shall constitute the agreement between Purchaser and Seller and shall supersede any prior, contemporaneous, or future communications, promises, or negotiations regarding the PO subject matter. “Purchaser” shall mean Bastian Solutions, LLC or such other entity affiliated with Bastian as specified in the PO. “Seller” means the person, firm, corporation or other entity to whom a PO is addressed.
1.2 Acceptance. A PO is for the purchase of goods, services, or both, including all packaging, instructions, warnings, warranties, and other materials normally included (“Goods”). The PO is deemed accepted upon the earlier of Seller’s commencement of performance or any acknowledgment or assent to the PO. Each PO is expressly conditioned upon Seller’s assent to each and all of the terms hereof, and Seller’s acceptance is limited as such, and Purchaser rejects any additional or inconsistent terms and conditions not specifically agreed to in writing signed by Purchaser. The terms of Seller’s forms, bids, proposals, invoices or other documents shall not be a part of the terms of a PO except any such documents attached by Purchaser to the PO shall be incorporated solely for defining specifications, price, timing and/or scope of work.
1.3 Modification. No change to a PO will be binding upon Purchaser unless in writing specifically identifying that it amends a particular PO and signed by an authorized Purchaser representative. Purchaser may direct any PO changes through its authorized representatives. If the change causes an increase or decrease in the cost of performance, an equitable adjustment will be made.
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Delivery, Shipment and Packaging.
2.1 Seller will deliver Goods in the quantities and on date(s) specified on the PO, or if not specified, on the best delivery date(s) subject to Purchaser acceptance. Seller will not make any substitutions without Purchaser’s prior written approval and must immediately notify Purchaser of any actual or anticipated delays. Seller shall furnish sufficient labor/management, plant, and equipment and shall work such hours (including night, overtime, weekend/holiday, without additional cost to Purchaser) as may be required to assure timely delivery. Time is of the essence for the PO. If delivery of the Goods is not made as required, Purchaser reserves the right, at its sole option, to rescind the PO or any part thereof without obligation, demand a price reduction and/or claim damages.
2.2 If Goods are being supplied by Seller for use by Purchaser’s end-user, then Seller will be required to provide with the shipment all applicable drawings, installation instructions, and operation and maintenance manuals.
2.3 All items will be packaged according to good commercial practice sufficient to ensure no damage or degradation and in conformity with the instructions in the PO. Purchaser will not be liable for any discharge, spill or other environmental incident (including clean-up costs) involving any Goods until received and accepted by Purchaser. All containers will be properly marked and identified.
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Shipping, Title and Risk of Loss. Unless the PO specifies otherwise, delivery of Goods will be made per INCOTerm DDP Purchaser’s specified facilities, and risk of loss for the Goods remains with Seller until completion of delivery to and acceptance by Purchaser. Title shall pass to Purchaser upon the earlier of payment of the purchase price or delivery to Purchaser. If Purchaser makes progress payments, proportionate title to the Goods shall be transferred to Purchaser as payments are made. Seller shall also identify such Goods as the property of Purchaser, unless Purchaser waives identification. Seller’s shipping point shall be clearly identified in their quotation. Any change in shipping point and freight rate shall be the responsibility of the seller to notify purchaser in writing.
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Purchaser-Supplied Materials. Title to any material, tooling, equipment, or technical data that Purchaser pays for or is provided to Seller by or on behalf of Purchaser, will remain or vest with Purchaser. Seller will maintain Purchaser property in good condition and not allow any liens to be placed upon it. Seller is responsible for any loss, damage, or destruction of Purchaser property and any loss, damage or destruction of any third-party property resulting from Seller’s negligent use of Purchaser property. Purchaser makes no representations or warranties (express or implied) with respect to Purchaser property.
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Price. Seller will furnish the Goods at the prices in the PO. If prices are not stated by Purchaser, Seller will offer its lowest prices subject to written acceptance by Purchaser. Unless otherwise stated in writing and agreed to by Purchaser, the prices include all packaging, freight, and insurance for shipping and delivery to the specified delivery point, and all applicable taxes and other government charges.
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Payment. Payment terms are Net 30 days from receipt of a properly rendered invoice or acceptance of conforming Goods, whichever occurs later.
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Set Off and Liens. Purchaser may deduct any amount Seller owes Purchaser against any payment due to Seller under this PO. Seller waives its right to file a lien or otherwise encumber any Purchaser property.
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Warranty.
8.1 For the period specified in the Main Contract, or if none is stated therein for a period of eighteen (18) months from delivery, Seller warrants all Goods furnished (including all replacement or corrected Goods or components that Seller furnishes) will (a) be free from defects in material, workmanship, and design, (b) be merchantable and conform to all elements of drawings, designs, quality control plans, specifications and other descriptions furnished or specified by Purchaser, (c) conform to Seller’s descriptions, promises or samples, (d) be fit for the intended purposes and operate as intended, (e) be of good and acceptable quality, and (f) be free and clear of any liens, restrictions, reservations, security interests or encumbrances. Warranties hereunder shall survive acceptance and run to Purchaser and its successors, assigns, and end-users of the Goods. Seller extends to Purchaser all third-party manufacturer or Seller warranties in any way relating to the Goods. Seller agrees to use commercially reasonable efforts to assist and cooperate with Purchaser and its successors, assigns, and end-users of the Goods in enforcing any such warranties.
8.2 If Purchaser identifies a warranty problem with the Goods during the warranty period, Purchaser will promptly notify Seller of such problems. Within forty-eight (48) hours of said notification, or such shorter period as specified in the General Contract, Seller shall inspect the Goods and shall commence, within twenty-four (24) hours of said inspection, at Purchaser’s option, either repair or replacement of such Goods. In the event any Good(s) is returned to Seller, all costs of shipping same shall be borne by Seller. Replacement and repaired Goods shall be warranted for the remainder of the warranty period or one (1) year, whichever is longer.
8.3 Claims for breach of warranty and the applicable statute of limitations do not accrue until discovery of noncompliance, even if the Goods were previously inspected. Goods that meet all standards are collectively referred to herein as “conforming Goods.” If conforming Goods are not furnished or are delivered late, then Purchaser may, at its election and in addition to any other rights or remedies it may have at law or in equity, have the Goods repaired, replaced, corrected or sourced from a third party, and any additional resulting costs shall be at Seller’s expense. Seller is also responsible for all related expenses and damages including without limitation, the costs of failure analysis, fault isolation, reinstallation, removal, disassembly, re-inspection and retrofit of the nonconforming Goods or of Purchaser’s affected end-product; all freight charges; all charges to Buyer by its client(s); and all corrective action costs. Unless set off by Purchaser, Seller will reimburse Purchaser for all such costs upon receipt of Purchaser’s invoice. If Seller is unable to remedy the nonconformance or to deliver replacements, then Purchaser may, at its election, rescind the PO or any part thereof without obligation, demand a reduction of the purchase price and/or claim damages from Seller.
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Inspection and Rejection. All Goods furnished hereunder will be subject to Purchaser’s inspection and approval after delivery, irrespective of payment date. Purchaser may reject Goods not in accordance with the PO terms or Seller’s warranties (expressed or implied) and may return rejected Goods to Seller at Seller’s expense, and Purchaser shall have no further obligation for such Goods. Payment for, physical possession by Purchaser of, or acknowledgement of receipt of, any Goods shall not be deemed acceptance by Purchaser, and in no event shall Purchaser incur any liability for payment for rejected Goods. Purchaser shall have a reasonable time to submit claims of count, weight, quantity, loss, or damage. If Purchaser discovers at any time (including after acceptance) that Seller’s quantities are incorrect, Purchaser may reject and submit a claim. If the invoice was previously paid, Seller will promptly reimburse the amount of damages to Purchaser. Seller shall assume responsibility for and will pay any and all loss, cost, damage, or expense, including attorney fees and cost of replacement incurred by Purchaser, attributed to Purchaser’s rejection of Goods due to any non-conformity of the Goods, packaging, delivery or any other defect. Purchaser reserves the right to have a representative in Seller’s facilities to inspect any material covered by a PO at any reasonable time.
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Suspension and Termination.
10.1 Purchaser shall have the right to suspend performance of any PO, without monetary penalty, upon not less than ten (10) calendar days’ notice to Seller. Any suspension shall delay delivery on a day-for-day basis equal to the suspension.
10.2 The non-breaching party may terminate a PO if the other party commits a material breach and fails to remedy the breach within 30 calendar days following receipt of written notice specifying the breach. A material breach includes, but is not limited to, late delivery or nonconforming Goods. The solvent party may terminate a PO upon written notice that the other party is insolvent, or a petition is filed, or proceedings commenced by or against that party relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
10.3 Notwithstanding any firm time period or quantity on the PO, Purchaser may terminate a PO in whole or in part at any time with or without cause for undelivered Goods or unperformed services.
10.4 If Purchaser terminates a PO, Purchaser’s sole liability to Seller, and Seller’s sole and exclusive remedy, is payment for Goods received and accepted by Purchaser (a) before the termination; (b) following termination to the extent completed prior to termination or later completed regarding uncancellable orders; and (c) following termination for any uncompleted or raw Goods that Purchaser requests be delivered. The payment can be set off against any damages to Purchaser.
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General Indemnification. Seller will, at its expense, defend, release, protect, indemnify, and hold Purchaser and its agents, and their respective officers, directors, shareholders, managers, assigns, consultants, invitees, and employees, and their customers and other contractors and subcontractors (other than Seller) (collectively, “Indemnitees”) harmless from and against any and all loss, cost, expense, damage, claim, demand or liability, including reasonable attorney/professional costs and the cost of settlement, compromise, judgment or verdict incurred by or demanded of an Indemnitee arising out of, resulting from or in connection with, or otherwise related to the Goods attributable to (a) Seller’s fault, negligence, willful misconduct, or breach of the PO terms; (b) any liens or claims filed by Seller’s contractors or agents against Purchaser or its assets relating to amounts owed by Seller to its contractor or agents; or (c) any alleged: (i) patent, copyright or trademark infringement; (ii) unlawful disclosure or use of confidential information; or (iii) any other violation of any third party intellectual property right (each, a “Claim”); or (d) any fraudulent or negligent use of Seller’s information systems by a third party, including, but not limited to e-mail.
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Process Related to Indemnification. Seller will have the right to conduct the defense and settlement of any Claim, but in no event will Seller enter into any settlement related to Purchaser, the Goods or a PO without Purchaser’s prior written consent, which will not be unreasonably withheld. Purchaser shall have the right to participate in any legal action, alternate dispute resolution or settlement discussions relating to a Claim with counsel of its own selection and expense.
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Insurance. Seller will have at all times liability insurance sufficient to cover the risks and liability of the PO any other insurance coverage and at limits consistent with best practice in Seller’s industry. Such insurance will be primary and non-contributory, and name Purchaser and/or its other designees as additional insured. Except where prohibited by law, Seller will require its insurers to waive all rights of recovery or subrogation against Purchaser, and its officers, directors, shareholders, employees and agents. The amount of insurance carried will not be construed as a limitation on, satisfaction of, or otherwise impact Seller’s indemnification or PO obligations.
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Confidentiality and Ownership of Intellectual Property. All Goods, including without limitation inventions, discoveries, specifications, samples, drawings, materials, know-how, designs, processes, and other information whether technical, business, financial or other, that: (a) has been or will be provided to Seller by or on behalf of Purchaser or which Seller otherwise acquires under a PO; (b) Seller will design, develop or otherwise create in connection with a PO whether or not completed; and (c) the existence, negotiations, terms and performance of a PO, shall be regarded by Seller as confidential and deemed to be “Confidential Information” of Purchaser . All Confidential Information under 14(b) shall be a “work for hire” and the ownership and copyright therein vests in Purchaser and shall be the exclusive property of Purchaser. To the extent that exclusive title or ownership rights in such Confidential Information may not originally vest in Purchaser, Seller hereby irrevocably assigns, transfers and conveys to Purchaser all right, title and interest therein. Purchaser’s Confidential Information will remain the property of Purchaser and will not be used by Seller for any purpose other than for performing a PO and may not be disclosed to any third party. If the Goods are subject to an injunction or restraining order, Seller will, at its expense and Purchaser’s election, obtain for Purchaser the right to continue to use the Goods (“Goods” includes information), or replace or modify the Goods to make them non-infringing or eliminate the confidential information at issue while still meeting Purchaser’s requirements.
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Infringement. It is anticipated that any Goods delivered under a PO will be possessed, used, and/or sold by Purchaser. If by reason of any of these acts a claim or action is brought or threatened for infringement of any patent, trademark, trade name, or copyright with regard to the Goods, their manufacture, or use, Seller shall at its own expense defend, indemnify, and hold Purchaser harmless from any such claims or actions and any damages or expense whatsoever resulting therefrom.
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Audit. Seller will maintain detailed records to adequately reflect Seller’s compliance with the terms of a PO for at least five years from the last delivery. If, as a result of an audit by Purchaser, any invoice submitted by Seller is found to be in error, an appropriate adjustment will be made and will be paid promptly by Seller.
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Assignment and Subcontracting. Seller will not assign a PO or any rights or obligations or subcontract any material aspect of the work called for without the prior written approval of Purchaser. Any assignment without Purchaser’s written approval will be voidable at the option of Purchaser. Purchaser may assign a PO, in whole or part, to any purchaser or successor to all or substantially all of the assets of the business or product line to which a PO relates without Seller’s consent and upon written notice to Seller.
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Relationship of Parties and Work on Purchaser’s Premises. Nothing in a PO will be construed to place Seller and Purchaser in an agency, employment, franchise, joint venture, or partnership relationship. Seller will perform its obligations under a PO as an independent contractor. If Seller performs services at or enters onto the premises of Purchaser or its customers, Seller and its representatives shall comply with all safety and health laws, regulations, and ordinances, and with Purchaser’s and its customers safety, health and plant requirements, and shall ensure that all Seller’s employees and agents have a safe workplace.
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Support. If the Goods will be installed at a Purchaser’s end-user / customer site by Purchaser or its subcontractors, Seller will assign a technical support representative to remotely resolve any defects in the Goods that are discovered during the project. In the event of any major problems such as damage during shipment, incorrect specifications, or defective manufacturing of Goods that are discovered on site, then Seller will promptly furnish an onsite representative at no additional cost to Purchaser. Any onsite representative(s) will perform work in a manner that complies with applicable laws, regulations, and ordinances, as well as Purchaser and Purchaser’s customer’s safety and health requirements.
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Exclusivity. Seller agrees not to accept a purchase order from Purchaser’s end customer which is related to the same project for which the Goods hereunder are to be used. Seller shall forward to Purchaser all requests for Goods made by Purchaser’s end user.
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Safety. Seller shall, at least fourteen (14) days prior to delivery of an item of the Goods, provide to Purchaser in the English language: (a) a safety risk assessment for each item of the Goods; and (b) written safety training materials and procedures for the safe operation, maintenance, and repair of each item of the Goods. Seller shall also provide site specific hazard awareness training for each of its employees or subcontractors prior to any of them performing work at a Purchaser or Purchaser customer facility.
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Compliance with Laws. Seller will comply with all laws, regulations, and ordinances. Seller will maintain an effective compliance program acceptable to Purchaser and also comply with the terms of the Purchaser Code of Conduct for Sellers.
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IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT.
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Applicable Law and Dispute Resolution. A PO will be governed by and construed in accordance with the laws of the State of Indiana, without regard to conflicts of law principles. For any dispute which arises under this Purchase Order and which cannot be resolved by the parties during the normal course of business, the parties shall attempt in good faith to resolve the controversy(ies), claim(s) or dispute(s) of whatever nature arising out of or relating to this Purchase Order or the performance, breach, termination, enforceability or validity thereof (“dispute”) promptly by negotiation between executives or managers who have authority to settle the dispute, and who are a higher level of management than those persons who have direct responsibility for the day to day performance of this Purchase Order.
If the parties are unable to resolve the dispute through the aforementioned procedures, then federal and state courts located within Indiana will have exclusive jurisdiction to adjudicate any dispute.
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Survival. All provisions of a PO which by their nature should apply beyond its term will remain in force after any PO termination or expiration. If any provision of a PO is held to be illegal, invalid, or unenforceable by a court of competent jurisdiction, that provision will be severed, and the remaining provisions will remain in full force and a similar legal, valid and enforceable provision will be substituted for the severed provision.