1.1. Scope. These Terms & Conditions of Purchase (these “T&Cs”) apply to all Buyer purchase orders, in addition to any terms set forth on the face of an individual purchase order or in any plans, specifications and/or other documents incorporated by reference therein (collectively an “Order”).
(a) Acceptance. An Order is accepted by Seller on the earlier of (i) Seller’s shipment of any goods or rendering any services described in the Order, or (ii) the expiration of 15 days following Buyer’s issuance of the Order (unless Seller provides a written notice of non-acceptance to Buyer within that time). Acceptance by Buyer of any offer from Seller is expressly limited to the terms and conditions of the Order.
(b) Other Terms. Buyer hereby objects to and shall not be bound by any additional, different, or conflicting term contained in any oral or written communication between the parties of any kind, including any Seller shipping paper, confirmation, form, letter, paper, email, or electronic communication (“Other Term”). Every such Other Term shall be of no force or effect, except to the extent otherwise provided in ¶ 1.3 below.
1.2. Parties. As used in these T&Cs:
(a) “Affiliate” is a corporation, partnership, or other business entity that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the person specified.
(b) “Buyer” means the above-named corporation and all of its Affiliates — including, without limitation, IP Corporation, North American Composites Company (NAC), HK Research Corporation and Molding Products LLC.
(c) “Seller” is the addressee or intended recipient of Buyer’s purchase order or other Order (and its Affiliates).
1.3. Modification by Written Contract. These T&Cs may be modified only by a writing that is signed by Buyer’s authorized representative [¶ 8.6] and by Seller (“Written Contract”). When a conflict arises between these T&Cs and a Written Contract, the provisions of the Written Contract always control.
2.1. Termination for Cause. Buyer may, by written notice to Seller, terminate the Order, or any part thereof, in the event that Seller (i) fails to make timely, complete, and conforming delivery of goods and services; (ii) breaches any of its representations or warranties in the Order; (iii) breaches any of the terms and conditions of the Order; (iv) ceases its business operations; or (v) becomes insolvent or files for bankruptcy protection.
(a) No Payment Obligation. Whenever Buyer terminates for cause, Buyer has no payment obligations to Seller of any kind whatsoever.
(b) Adverse Court Determination. If a court determines that Buyer’s termination for cause was unjustified, then (i) such termination shall be considered to be a termination for convenience pursuant to ¶ 2.2 below, and (ii) Seller shall have all rights under that provision (but no other rights or claims for damages).
2.2. Termination for Convenience. Buyer may, by written notice to Seller, terminate the Order, or any part thereof, for any or no reason, for Buyer’s convenience. Upon notice of termination, Seller shall immediately stop all work and cause its suppliers and/or subcontractors to stop all work in connection with the Order. If Buyer terminates for convenience, Buyer shall pay Seller for goods and services accepted as of the date of termination, and, subject to ¶ 5.4, for Seller’s actual, reasonable, out of pocket costs incurred directly as a result of such termination. Buyer shall have no responsibility for work performed after Seller’s receipt of notice of termination.
3.1. Price. The Price shall be the amount stated in the Order. If there is no amount in the Order, then the price shall be Seller’s lowest price for similarly situated customers, unless the parties agree upon a different price.
3.2. Freight Charges. Except as expressly provided in the Order (i) packing, shipping, unloading, assembling and installation are included in the price in the Order; and (ii) Buyer shall not be charged any additional amounts for such services. Seller must prepay all shipments with freight charges. Collect shipments will not be accepted.
3.3. Payments. Unless otherwise specified in the Order, payment terms shall be Net 60. However, except as expressly stated in the Order, payment shall not be due (i) before final acceptance by Buyer, and (ii) until Buyer receives a correct and proper invoice for the amount due (which accurately reflects the terms in the Order).
(a) Contrary Terms. Payment or other terms identified on the Seller’s invoice which are contrary to those of the Order shall have no force and effect unless acted upon or approved in writing by Buyer.
(b) Discounts. If cash discounts are offered and identified, such discount periods will be computed from the date of delivery of the goods or services ordered; or the date Buyer receives a correct and proper invoice, whichever is later.
(c) Late Fees and Penalties. Buyer will use reasonable commercial efforts to pay invoices within terms. However, Buyer is not obligated to pay late fees or penalties for invoices paid outside the Order’s terms.
3.4. Setoff. Buyer has the right to reduce and set off against amounts payable under the Order any indebtedness or other claim which Buyer may have against Seller, regardless of how or when it arose.
3.5. U.S. Dollars. Unless the Order expressly provides to the contrary, all quotes and amounts paid under the Order shall be in U. S. Dollars, and Seller bears the risk of fluctuation in foreign exchange rate.
4.1. Packing. Buyer’s purchase order number and specific delivery location must appear on the outside of each package and on all packing slips, invoices, and allied papers. A packing slip must be included with each shipment. Except as expressly provided in the Order, Seller shall pack, mark and prepare all shipments to meet the carrier’s requirements, at Seller’s expense.
4.2. Timely Delivery. Time is of the essence in fulfillment of the Order. Shipment and delivery shall be made in accordance with the Order; provided, that if not addressed in the Order, delivery shall be made within ten (10) days of Buyer’s issuance of the Order. Buyer may, at its option, and without limitation of any of its other rights, cancel any unfilled part of the Order if complete, conforming delivery is not made within the times specified. Buyer is not required to accept partial or incomplete delivery. Acceptance of any part of the Order shall not bind the Buyer to accept any future shipments.
4.3. Inspection. Buyer shall have the right to inspect and test all goods and/or services delivered under the Order. Neither receipt nor payment for goods and/or services shall constitute acceptance. Buyer may reject any or all items that are nonconforming, as determined by Buyer’s sole reasonable judgment. Buyer’s failure to inspect shall not relieve Seller of any of its responsibilities. Material shipped in quantities in excess of Buyer’s stated requirements may be returned at Seller’s expense. If goods are rejected, they will be held at Seller’s risk and expense and Seller shall bear the risk of loss or damage to those goods until they are received by Seller.
4.4. Title and Risk of Loss. Until the goods purchased pursuant to the Order they are actually received by Buyer, Seller shall retain title to those goods, bear the risk of loss, and be solely responsible for damage to the goods.
5.1. Seller Warranties. Seller warrants that all material, work product, and merchandise supplied under the Order (i) shall strictly conform to all specifications, drawings, samples, or other descriptions furnished to and approved by Buyer; (ii) shall be fit and serviceable for the purpose intended, as agreed to by Buyer and Seller; (iii) shall be of good quality and free from defects in materials and workmanship; (iv) shall be new and not refurbished or reconditioned, unless expressly agreed in writing by Buyer; and (v) shall not infringe any patent, copyright, mask work, trademark, trade secret or other intellectual property, proprietary or contractual right of any third party.
(a) Good Title. Seller warrants that (i) Buyer shall have good and marketable title to all goods and all components thereof purchased by Buyer pursuant to the Order; (ii) upon delivery, the goods shall be free and clear of all liens and encumbrances of any kind, including purchase money security interests; and (iii) no licenses are required for Buyer to use such goods.
(b) Services. With respect to services, Seller warrants that all services shall be provided in a professional and workmanlike manner, with a degree of skill and care consistent with current, good and sound professional procedures.
(c) Effect of Receipt and Payment. Neither receipt of material, work, product, or merchandise — nor payment therefor by the Buyer — shall ever be deemed to constitute a waiver of the above provisions or preclude Buyer from enforcing the above provisions as written.
(d) Return Rights. In the event that a breach of warranty occurs, Buyer may, in its sole discretion, and without waiving any of its other rights, return for credit or require prompt correction or replacement of the nonconforming goods or services.
5.2. Intellectual Property Indemnity. Seller shall indemnify, defend and hold Buyer harmless against all claims, liabilities, losses, damages, costs and expenses (including legal fees) resulting from or arising in connection with any actual or claimed infringement of any patent, copyright, mask work, trademark, trade secret or other intellectual property, proprietary or contractual right of any third party, with respect to the goods or services provided under the Order.
5.3. Buyer’s Damages. Without limiting Buyer’s rights and remedies at law or in equity, Buyer reserves the right to charge Seller for any loss, expense (including reasonable attorneys’ fees) or damage sustained as a result of Seller’s failure to deliver conforming goods or services or other breach of the Order, including without limitation, expenses incurred in connection with Buyer’s purchase of substitute goods, incidental damages and consequential damages resulting from Seller’s failure or breach.
5.4. Limitation of Buyer’s Liability. Except to the extent expressly provided in these T&Cs or a Written Contract (i) Buyer shall not be liable to Seller, its employees, representatives, agents, suppliers, or subcontractors for any anticipated profits, any incidental damages, or any consequential damages; (ii) under no circumstances shall Buyer’s liability for any claim arising directly or indirectly under or in connection with the Order exceed the cost of the goods or services giving rise to the claim; and (iii). Buyer is not liable for penalties of any kind.
6.1. In General. These dispute resolution provisions may be modified by the parties in writing. Nothing herein prevents the parties from utilizing mediation if they so agree. As used below, the amount of a party’s requested claim or counterclaim excludes (i) interest; (ii) the monetary value of injunctive relief sought; (iii) any arbitration and arbitrator fees; (iv) all costs, disbursements, and attorney fees; and (v) damages not recoverable hereunder.
6.2. Claims of $150,000 or Less — Court. Any claim arising out of or relating to these T&Cs or the contract between the parties, or the breach thereof, shall be resolved by a court under the provisions below whenever the parties’ claims and counterclaims are each $150,000 or less (even if the aggregate exceeds that dollar threshold).
(a) Exclusive Jurisdiction & Venue. The court proceeding must be commenced in a federal or state district court in the Minneapolis-St. Paul Standard Metropolitan Statistical Area, and those courts shall have exclusive jurisdiction and venue to determine all legal and equitable disputes between the parties.
(b) Seller Consent to Jurisdiction & Venue. Seller hereby (i) consents to the jurisdiction and venue of the above courts, (ii) waives any right to contest the same or claim that those courts are inconvenient forums, and (iii) agrees that those courts shall have exclusive jurisdiction and venue.
6.3. Claims Above $150,000 — Arbitration. Except as otherwise stated in ¶ 6.2 above or ¶ 6.3(d) or ¶ 6.3(e) below, any claim arising out of or relating to these T&Cs or the contract between the parties, or the breach thereof, shall be settled by binding arbitration administered by the American Arbitration Association (“AAA”) under the AAA’s then existing Commercial Arbitration Rules.
(a) AAA Rules. The Expedited Procedures of the AAA shall be used when the parties’ claims and counterclaims are each less than $500,000 (even if the aggregate equals or exceeds that dollar threshold). The procedures for Large, Complex Commercial Disputes shall be used if either party’s claim or counterclaim is at least $500,000. There shall be just one arbitrator.
(b) Venue of Proceeding. The arbitration shall be in the Minneapolis-St. Paul Standard Metropolitan Area in the AAA offices or another location therein selected by the arbitrator (including his or her own offices).
(c) Arbitrator’s Powers. The arbitrator shall have all of the powers in the AAA rules, including the ability to grant injunctive relief. All jurisdiction issues shall be decided solely by the arbitrator (not a court).
(d) Indispensable Parties. Upon motion by either party, the arbitrator shall dismiss the proceeding without prejudice and costs when (i) the arbitrator cannot accord complete relief between the Buyer and Seller unless another party participates in the proceeding, and (ii) that person refuses to participate in the arbitration proceeding hereunder. If the arbitration gets dismissed, suit may be commenced in accordance with ¶ 6.2 above notwithstanding any dollar limit therein.
(e) Injunctive Relief. Nothing above precludes either party from seeking injunctive relief from a court of law pursuant to ¶ 6.2 above when (i) no money damages are sought, or (ii) the amount of money damages also being sought does not exceed the dollar threshold therein. For all other situations, see ¶ 6.3(c) above.
6.4. Loser Pays. Plaintiff is the “prevailing party” — and defendant is the “losing party” — whenever plaintiff is awarded (i) at least 67% of plaintiff’s monetary demand, and/or (ii) a substantial portion of plaintiff’s request for injunctive relief. If plaintiff is awarded neither of the preceding, then the “prevailing party” is defendant and the “losing party” is plaintiff.
(a) Costs & Disbursements. In all cases, the losing party must pay all of the prevailing party’s costs and disbursements including, without limitation, fees and expenses of expert witnesses. However, neither Party may recover for time spent by its employees or any of their travel costs, hotel charges, meals, or related items.
(b) Arbitration Expenses. In arbitration proceedings, the losing party must pay directly or provide reimbursement for (i) all AAA filing fees and other AAA charges, and (ii) all of the arbitrator’s fees and expenses.
(c) Attorney Fees. In all cases, the losing party shall pay the prevailing party’s reasonable attorney fees and their expenses. A contingency fee up to one-third (1/3) shall be deemed to be reasonable.
6.5. Interest. Any claim by Seller against Buyer for a liquidated sum, or by Buyer against Seller for a liquidated sum, shall accrue interest at the rate of eighteen percent (18%), or if less, at the maximum legal rate of interest.
6.6. Collection Costs. Until the award is paid in full, interest shall accrue on the unpaid amount at the rate in ¶ 6.5 above. In the event the full payment is not made within 30 days of the award, the prevailing party shall be entitled to recover all of its reasonable collection coasts, including additional attorney fees relating to collection of those unpaid amounts.
7.1. Conduct of Personnel. While at any Buyer location, Seller’s personnel, agents, and subcontractors shall comply with all of the reasonable requests, standard rules, and regulations of Buyer communicated to Seller regarding personal and professional conduct, including without limitation any security or privacy requirements, and shall otherwise conduct themselves in a businesslike manner.
7.2. Use of Buyer’s Name. Seller agrees not to use (i) Buyer’s name, (ii) the name of any employee, student or agent of Buyer; or (iii) any trademark, service mark or trade name owned or controlled by Buyer, in any sales, promotional, advertising or other publication, without the express prior written permission of Buyer. In no event shall Seller or its employees, agents or subcontractors represent themselves as employees or agents of Buyer.
7.3. Compliance with Laws. Seller represents and warrants that, in the production and sale of goods to be delivered pursuant hereto, and in the provision of services hereunder, Seller has complied with all applicable federal, state, and municipal laws and regulations, including, without limitation, (i) all such laws and regulations pertaining to health, safety and environmental standards; (ii) all such laws and regulations pertaining to design, manufacture, testing, labeling, and transportation of such goods; and (iii) all such laws and regulations which pertain to affirmative action, nondiscrimination, and/or equal opportunity, including without limitation, the requirements of the Fair Labor Standards Act of 1938, as amended, and the rules and regulations of the Secretary of Labor issued pursuant to Executive Order Number 11246 of September 24, 1965.
7.4. Confidentiality. Seller shall preserve in strict confidence all confidential, sensitive or proprietary information of Buyer received from Buyer (“Confidential Information”), whether or not marked “Proprietary” or “Confidential,” and whether oral or written, using the same degree of care as it takes to preserve and safeguard its own confidential or proprietary information (but in no event less than a reasonable degree of care. Confidential Information shall not include information that Seller can demonstrate by written evidence was publicly available at the time of disclosure or was independently developed by Seller without reference to Confidential Information. Seller will not (i) disclose or cause to be disclosed at any time any Confidential Information obtained from Buyer, or (ii) use or cause to be used any of such Confidential Information for any purpose, except as required in the performance of the services required by the Order. Seller represents, warrants and covenants that it shall maintain physical, electronic and procedural safeguards designed to (1) insure the security, integrity and confidentiality of all Confidential Information, (2) protect against any anticipated threats or hazards to the security, integrity or confidentiality of Confidential Information, and (3) protect against unauthorized access to or use or disclosure of Confidential Information.
7.5. Proprietary Rights. Seller agrees that all work created by Seller solely or in collaboration with others in the course of performing services under this Agreement or designing or developing materials to be delivered, including all intermediate and partial versions (“Work Product”) shall automatically be the sole property of Buyer upon their creation or (in the case of copyrightable works) fixation in a tangible medium of expression, and Buyer shall own all rights, including all proprietary and intellectual property rights, title and interest. Seller hereby assigns to Buyer all of its right, title and interest in and to all of the Work Product and all copies of any of the foregoing, including, without limitation, all copyright and other proprietary rights thereto throughout the world (and all renewals and extensions).
8.1. Entire Agreement. The Order represents the entire agreement between Seller and Buyer with respect to the goods and services described in the Order.
8.2. No Assignment. Seller may not assign, transfer or subcontract any part of the Order without the prior written consent of Buyer, and any assignment in violation of this provision shall be null and void.
8.3. Severability. If any provision of the Order is determined to be invalid, illegal or unenforceable, the remaining provisions of this Agreement remain in full force, if the essential terms and conditions of this Agreement for each party remain valid, binding, and enforceable.
8.4. Waiver. No waiver by Buyer of any provision of the Order or any breach hereunder shall be deemed a waiver of any other provision or subsequent breach, nor shall any such waiver constitute a continuing waiver. Delay or failure of Buyer to insist on strict performance of any provision of the Order or to exercise any rights or remedies hereunder shall not be deemed a waiver.
8.5. Meaning of Certain Terms. Unless the context clearly requires otherwise, all words used in these T&Cs in the singular include the plural, and all words used in the plural include the singular. Unless the context clearly requires otherwise, whenever the following terms are used in these T&Cs, they mean the following:
(a) “Include” and its derivatives are used in these T&Cs in an illustrative sense, not a limiting one (and thus has the same meaning as the phrase “including but not limited to”).(b) “Signed” means (i) an original signature; (ii) a fax copy with a manual signature; (iii) any signature affixed to a writing that is then scanned and sent by email or other electronic communication; and/or (iii) any signature satisfying the Electronic Signatures in Global and National Commerce Act (ESIGNS), 15 U.S.C. Chap. 96, or any state law that is applicable to that instrument.
(c) “Writing” includes (i) traditional paper documents, (ii) information that is inscribed on a tangible medium, and (iii) information that is stored in an electronic or other medium and is retrievable in a perceivable form (including, without limitation, an email).
8.6. Buyer’s Authorized Representative. The only Buyer representatives with authority to modify these T&Cs are (i) its Vice President & General Counsel, and (ii) its other executive officers. No such authority is held by sales personnel, purchasing officials, or other employees (and a purported medication by them has no force or effect).
8.7. Choice of Law. All matters arising under or related to the Order and these T&Cs shall be construed and enforced in accordance with the laws of the State of Minnesota, without regard to conflicts of law rules. This shall apply to all court proceedings [¶ 6.2], all arbitrations [¶ 6.3], and all other circumstances.