DIAMOND PRODUCTS LTD.
Purchasing Terms and Conditions
1. Terms and Conditions: These Terms and Conditions, together with Diamond Products (hereinafter “DP”) Purchase Order (hereinafter “Order”) issued to SELLER contain the entire agreement between the parties pertaining to the purchase by DP of the goods and services set forth in the Order.
2. Acceptance: a) This Order is DP'S offer to SELLER and does not constitute an acceptance by DP of any offer to sell, quotation or proposal. Any reference to such offer to sell, quotation or proposal is solely for the purpose of incorporating the description and specifications of the goods and services (hereinafter collectively “Supplies”) contained herein to the extent that such description and specifications of the Supplies contained therein do not conflict with the description and specifications on this Order. This Order consists only of the terms contained herein and on this Order and any supplements, specifications or other documents expressly incorporated herein by reference. b) By acknowledging receipt of this Order (or by shipping the Supplies called for by this Order) SELLER agrees to the terms and conditions of sale contained in this Order. Any additional or different terms or conditions contained in any acknowledgement of this Order by SELLER shall be deemed objected to by DP without need of further notice of objection and shall be of no effect nor in any circumstances binding upon DP unless accepted by DP in writing. Acceptance or rejection by DP of any such additional terms or conditions shall not constitute an acceptance of any other additional term or condition.
3. Prices and Terms of Payment: The prices and terms of payment stated on the Order apply to all shipments made or services rendered hereunder. DP shall have no obligation to honor invoices for Supplies at any increased price unless such increase shall have been confirmed in writing by DP. No charges of any kind not stated on the Order hereof, including without limitation charges for packing, crating or containers, will be allowed unless specifically agreed to by DP in writing but damage to any Supplies because of packaging which fails to protect such Supplies will be charged to SELLER.
4. Conditions of Payment: Payment of Supplies covered by the Order will be made in accordance with the following terms: Payment date will be computed from the date of receipt of materials or service. Actual receipt will be the determining factor in the calculation of cash discounts and the scheduling of payment of invoices. Unless an earlier date is supported by evidence of shipment as a part of the invoice, DP's receiving date shall be used to establish time of payment. DP shall be entitled, at all times, to set off any amount owing from SELLER to DP against any amount due or owing to SELLER with respect to this Order. DP is authorized to settle disputed accounts.
5. Taxes: Any applicable federal, state, and local taxes shall be stated separately on SELLER'S invoice. The prices stated herein do not, nor will any invoice of SELLER, include any tax with respect to which an exemption is available or is indicated by DP to be available, or any federal excise or other tax with respect to which DP has furnished SELLER evidence of a lawful exemption. In case it shall ever be determined that any tax, whether separately stated on SELLER'S invoice and paid by DP or included in the price charged by SELLER was not required to be paid by SELLER, SELLER agrees to notify DP and promptly take all steps necessary to obtain a refund, and when received, to pay such refund to DP.
6. Delivery: The terms of delivery are stated on the Order. The obligation of the SELLER to meet the delivery dates, specifications and quantities as set forth on the Order is of the essence to the agreement. Deliveries are to be made both in quantities and at times specified on the Order, or if no such quantities or times are specified, pursuant to DP'S written instructions. Shipments in greater quantities than ordered may be returned at SELLER'S expense, unless written authorization is issued by DP. If SELLER'S deliveries fail to meet the specified receipt date indicated on the Order, without limiting its other rights or remedies, DP may either direct expedited routing and charge excess cost incurred thereby to SELLER or cancel all or part of the Order in accordance with the default provisions hereof. Supplies which are delivered in advance of the date indicated by the Order are at the risk of SELLER and may, at DP's option, be returned at SELLER'S expense for proper delivery and/or have payment therefore withheld by DP until the date that the Supplies are actually specified for delivery.
7. Excusable Delay for Non-Performance: It shall not be deemed a default hereunder and neither DP nor SELLER shall be liable for a failure to perform hereunder arising from cause or events beyond reasonable control and without the fault or negligence of DP or SELLER, including but not limited to, labor disputes of any kind. To the extent that, and so long as, the obligations of either party are affected by any such cause or event, such obligations shall be suspended, provided however, that time is of the essence of the Order and should SELLER fail to comply with DP's indicated delivery or its obligations hereunder, DP may terminate the Order without liability.
8. Government Regulations: a) FAIR LABOR STANDARDS ACT. Each of SELLER'S invoices covering materials covered by this Order must carry the following certificate or its equivalent in order to be passed for payment: “SELLER hereby certifies that any materials covered by this invoice were produced in compliance with all applicable requirements of the Fair Labor Standards Act, as amended, and of regulations and orders issued thereunder.” b) OCCUPATIONAL SAFETY AND HEALTH ACT. SELLER warrants that the Supplies to be furnished hereunder comply with the requirements of the Occupational Safety and Health Act of 1970, as amended. c) COMPLIANCE. The SELLER, by accepting this Order, agrees that Supplies furnished on this Order were manufactured in accordance with all applicable laws, acts, orders and regulations of the Federal, State and Local Governments, and all applicable codes and industry standards.
9. Inspection: All Supplies provided hereunder shall be subject to inspection and testing at the point of destination, notwithstanding prior payment by DP. If any of the Supplies are defective or otherwise not in conformity with the requirements of the Order or DP's designs, DP in addition to its other rights, may reject the same for full credit or may rework the same at SELLER'S expense or may require prompt correction of replacement thereof by SELLER at SELLER'S expense. Any Supplies rejected by DP shall be at SELLER'S risk and expense and shall not thereafter be tendered for acceptance without DP's written consent. The packaging and handling expense incidental thereto and the applicable transportation costs or charges will be charged to SELLER'S account. Nothing herein shall release SELLER from the obligation to make full and adequate testing and inspection of Supplies sold herein. The SELLER'S manufacturing plant or such part of any manufacturing plant as may be engaged in manufacturing or furnishing the product together with cost records or orders placed on a time and material basis, shall with reasonable notice be subject to inspection by DP.
10. Property: All tools, dies, patterns, drawing or other equipment furnished by DP shall continue to be DP's property and subject to DP's disposition at any time. SELLER shall hold DP property at its risk and agrees to replace said property if lost or destroyed. DP property shall be used exclusively in the preparation of Supplies ordered by DP.
11. Confidentiality of Information: SELLER shall not, without first obtaining DP's written consent, in any manner advertise, publish, communicate or otherwise divulge the fact that the SELLER has contracted to furnish the Supplies to DP. SELLER shall be responsible in matters within its control for safe guarding of all information that is non-public, confidential or proprietary in nature regarding DP and the use and/or application of DP's products that is disclosed or developed in connection with the work under this contract. DP shall be entitled to equitable relief, including injunction bond (without bond) and specific performance, in the event of any breach or threatened breach of this Paragraph 11 by SELLER. Such remedies shall not be deemed to be the exclusive remedies of DP, but shall be in addition to all other remedies available at law or in equity.
12. Warranties: Seller expressly warrants and guarantees to DP to DP successors, assigns and customers, that all Supplies delivered to DP will: (a) conform to the specifications, standards, drawings, samples, descriptions and revisions as furnished to or by DP; (b) conform to all applicable laws, orders, regulations and standards in countries where Supplies or other products incorporating Supplies are to be sold; (c) be merchantable and free of defects in design (to the extent designed by Seller), manufacture, materials and workmanship; and (d) be selected, designed (to the extent designed by Seller), manufactured and assembled by Seller based upon DP's stated use and be fit and sufficient for the purposes intended by DP. The warranty period is the longest of: three years from the date DP accepts the Supplies; the warranty period provided by applicable law; or the warranty period offered by DP or DP's customer to end-users for Supplies installed on or as part of products. The warranty period for any item determined to be defective is unlimited in time and scope. For all services, Seller further warrants that its work will be performed in a professional and workmanlike manner, consistent with all standards and specifications agreed on with DP and otherwise consistent with industry standards. Seller will immediately notify DP in writing when it becomes aware of any ingredient, component, design or defect in Supplies that is or may become harmful to persons or property. DP's approval of any design, drawing, material, process or specifications will not relieve Seller of these warranties.
13. Indemnification: SELLER agrees to defend, indemnify and save harmless DP from and against all losses, liabilities, judgments, settlements, expenses including, without limitation, attorney's fees or claims based on injuries or damages to any person or property arising out of or in any way related to (a) the Order, (b) the breach of any obligation or warranty hereunder, or (c) the delivery, condition, use or operation of the Supplies purchased hereunder, whether such Supplies are in the same mode as when delivered hereunder or whether they have been used in the manufacture of, and become part of, equipment, machinery or Supplies sold by DP to third parties. SELLER agrees to and shall assume on behalf of DP, upon its demand (without regard to the real or apparent merits of said action), the defense of any court or agency actions which may be brought against DP. The foregoing shall apply irrespective of whether claims are asserted by a party, its employees, subcontractors, or by unrelated third persons. With regard to any work-related injuries to SELLER'S employees, Seller expressly waives any immunity it may be granted under applicable Workers' Compensation statutes. In claims against any person or entity indemnified under this Paragraph 13 by an employee of SELLER, a subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation under this Paragraph 13 shall not be limited by a limitation on amount or type of damages, compensation, or benefits by or for SELLER or a subcontractor under Workers' Compensation acts, disability benefits acts, or employee benefits acts.
14. Intellectual Property: SELLER warrants that the Supplies specified herein and their sale or use alone, or in combination to SELLER'S specifications or recommendations, if any, will not infringe on any United States or foreign patent, copyright or trademark. In case the Supplies constitute patent, copyright, or trademark infringement and their use is enjoined, DP may, at its sole option, pursue any remedy or remedies available at law or in equity, including, without limitation, requiring SELLER to either procure for DP the right to continue using such Supplies, modify them so they become non-infringing or remove them and refund the total purchase price thereof.
15. Changes: DP may at any time, by written notice, make changes in the terms of the Order or the Supplies provided hereunder and SELLER shall comply therewith. If any such changes cause an increase or decrease in the cost of or time required for performance of SELLER'S obligation pursuant to the Order, an equitable adjustment shall be made in price or delivery schedule or both, and the Order shall be modified in writing accordingly. Any claim by SELLER for adjustment under this clause must be asserted within ninety (90) days from the date of receipt by SELLER of the notification of change.
16. Assignments: No right or obligation under the Order, including the right to receive monies due or to become due hereunder, shall be assigned by SELLER without the prior written consent of DP and any purported assignment without such consent shall be void. SELLER shall not subcontract or in any manner delegate to any other party the performance of any work or the supplying of any services under the Purchas Order without the prior written approval of DP.
17. Substitutions, Extras: No substitution of materials or accessories may be made without DP's written consent. No charges for extras will be allowed unless such extras have been ordered in writing by DP and the price agreed upon.
18. Insurance: SELLER shall maintain such public liability insurance (including products liability, completed operations, contractor's liability and protective liability), automobile liability insurance (including non-owned automobile liability) and workmen's compensation and employers' liability insurance in such amounts as will adequately protect DP against such damages, liabilities, claims, losses and expenses (including attorneys' fees); SELLER agrees to submit certificates of insurance evidencing its insurance coverages when requested by DP.
19. Gratuities: SELLER has not and will not offer or give to any employees, agent or representative of DP any gratuity with a view toward securing any business from DP or influencing such person with respect to the terms, conditions or performance of any contract/order or from DP. Any breach of this warranty shall be a material breach of each and every contract between DP and SELLER.
20. Default: In the event SELLER is insolvent or makes a general assignment for the benefit of creditors or admits in writing its inability to pay debts as they mature or if a trustee or receiver of SELLER or of any substantial part of the SELLER'S assets is a appointed by any court or if a proceeding against SELLER is instituted under any provision of the Federal Bankruptcy Act or any state insolvency law or by or against SELLER and is acquiesced in or is not dismissed within thirty (30) days or results in an adjudication in bankruptcy or insolvency or if SELLER fails, or appears to be unable to perform any of its obligations in accordance with the terms and conditions of the Order, DP may cancel the Order in whole or in part and/or pursue any further remedies available at law or in equity. No waive by DP of a breach by SELLER of any provision of the Order shall constitute a waiver of any other breach of such provision. All of DP's rights and remedies hereunder shall be cumulative and not exclusive.
21. Limitation of DP's Liability, Statute of Limitations: In no event shall DP be liable for anticipated profits or for incidental or consequential damages. DP's liability on any claim of any kind for any loss or damage arising out of, connected with resulting from the Order or the contract based thereon, or from the performance or break thereof, shall in no case exceed the price allocable to the Supplies or unit thereof which give rise to the claim. DP shall not be liable for penalties of any description. Any action resulting from any breach on the part of DP as to the Supplies delivered hereunder must be commenced with one (1) year after the cause of action has accrued.
22. Remedies: DP's rights and remedies in the Order will be cumulative with and in addition to all other or legal or equitable remedies. Seller will reimburse DP for any incidental or consequential damages caused by SELLER'S breach or by nonconforming Supplies, including without limitation costs, expenses, fees, and losses of whatsoever nature or kind, including but not limited to special travel costs (both from suppliers to DP and from DP to its customers), additional preproduction costs, additional costs caused by special shifts, loss of production costs, replacement/conversion costs, additional test costs and lost profit, incurred directly or indirectly by DP or its customer(s): (a) in inspecting, sorting, repairing or replacing the nonconforming Supplies; (b) resulting from production interruptions; (c) conducting recall campaigns or other corrective service actions; or (d) resulting from personal injury (including death) or property damage caused by the nonconforming Supplies. Consequential damages include reasonable professional fees incurred by DP. If requested by DP, Seller will enter into a separate agreement for the administration or processing of warranty charge-backs for nonconforming Supplies, and will participate in and comply with warranty reduction or related programs as directed by DP that relate to the Supplies. In any action brought by DP to enforce SELLER'S obligation to produce and deliver Supplies under the Order, the parties agree that DP does not have an adequate remedy at law and DP is entitled to specific performance (including temporary, preliminary and permanent injunctive relief without necessity of posting bond) of SELLER'S obligations under the Order. Seller expressly agrees that if it fails to make deliveries or perform services at the agreed time, fails to comply with DP transportation requirements, fails to ship the correct quantity, or fails to meet quality or certification requirements, then DP shall be entitled to a credit in the amount of ten percent of the value of the total Order, which may be applied at any time by DP at its sole discretion.
23. Risk of Loss or Damage: a) Risk of loss or damage to the Supplies furnished under the terms of this Order, shall pass to DP upon acceptance by DP. b) During the period that SELLER bears the risk of loss or damage, SELLER shall, by insurance or otherwise, bear the complete risk of loss or damage to the Supplies, no matter how caused and shall hold harmless DP from any such liability.
24. Cancellation: An addition to any other provisions contained herein for the cancellation or termination of the Purchas Order, DP may cancel the Order, for any reason or no reason, in whole or part, by written notice to SELLER on the condition that DP pay to SELLER the actual net cost to SELLER incurred in good faith prior to SELLER'S receipt of the cancellation notice in connection with this Order, provided however, that in no event shall DP be liable for SELLER'S commitments or production arrangements in excess of the amount, or in advance of that time, necessary to meet DP's delivery requirements.
25. Jurisdiction and Venue: Any dispute of whatsoever nature arising out of the providing Supplies pursuant to this Order, including payment for same, shall be venued in State or Federal courts of competent jurisdiction, for or located in Lorain County, Ohio. SELLER hereby consents to the exclusive jurisdiction of said courts to resolve any such dispute. In the event that an action is commenced in any other jurisdiction, SELLER agrees to the transfer of such action to the court of proper jurisdiction and reimbursed DP all fees (including reasonable attorney fees) and expenses in connection with the transfer. SELLER, OR ANYONE CLAIMING THROUGH SELLER, EXPRESSLY WAIVES THE RIGHT TO A JURY TRIAL WITH RESPECT TO ANY PROCEEDINGS ARISING OUT OF THE SALE OF THE SUPPLIES PROVIDED BY SELLER.
26. Relationship of Parties: Seller and DP are independent contracting parties and nothing in the Order will make either party the employee, agent or legal representative of the other for any purpose. The Order does not grant either party any authority to assume or to create any obligation on behalf of or in the name of the other. Seller will be solely responsible for all employment and income taxes, insurance premiums, charges and other expenses it incurs in connection with its performance of the Order, except as expressly provided in a written agreement signed by DP. All employees and agents of Seller or its respective contractors are employees or agents solely of Seller or such contractors, and not of DP, and are not entitled to employee benefits or other rights accorded to DP's employees. DP is not responsible for any obligation with respect to employees or agents of Seller or its contractors.
27. Conflict of Interest: Seller represents and warrants that its performance of the Order will not in any way conflict with any continuing interests or obligations of Seller or its employees or contractors. Seller further warrants that while the Order is in effect, Seller and those of its employees and contractors participating in the performance of the Order will refrain from any activities which could reasonably be expected to present a conflict of interest with respect to SELLER'S relationship with DP or its performance of the Order.
28. Language, Severability, No Implied Waiver: The parties acknowledge that it is their wish that these Terms and all documents relating thereto be in the English language only and only the English language version of these Terms shall govern. Any translation of the English language version of these Terms shall have no force or effect. If any term of the Order is invalid or unenforceable under any statute, regulation, ordinance, executive Order or other rule of law, the term will be deemed reformed or deleted, as the case may be, but only to the extent necessary to comply with applicable law. The remaining provisions of the Order will remain in full force and effect. The failure of either party at any time to require performance by the other party of any provision of the Order will not affect the right to require performance at any later time, nor will the waiver of either party of a breach of any provision of the Order constitute a waiver of any later breach of the same or other provision of the Order.
29. Survival: The obligations of Seller to DP survive termination of the Order, except as otherwise provided in the Order.
30. Headings: The headings in these Terms are for convenience only and shall not affect their interpretation.
31. Miscellaneous: This Order, as the same may be amended or modified in writing, and any document referred to herein supersede all prior understandings, transaction and communications, or writings with respect to the matters referred to herein. When SELLER has expressly accepted this Order, SELLER, by commencing work hereunder, shall be deemed to have agreed to all the provisions hereof.