Carpenter Brothers, Inc. Terms and Conditions Of Purchase

CARPENTER BROTHERS, INC. TERMS AND CONDITIONS OF PURCHASE

1. Applicability.
   • These terms and conditions of purchase (these “Terms”) are the only terms and conditions which govern the purchase of the goods (“Goods”) by Carpenter Brothers, Inc. (the “Buyer”) from the vendor named on the Order (“Vendor”). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
   • The purchase order (the “Order”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Vendor’s general terms and conditions regardless of whether or when Vendor has submitted its sales confirmation or such terms. This Agreement expressly limits Vendor’s acceptance to the terms of this Agreement. Fulfillment of or other performance under an Order constitutes acceptance of these Terms. These Terms also apply to any repaired or replacement Goods provided by Vendor hereunder.
2. Acceptance. Unless Buyer receives a Notice of rejection within five (5) days of Vendor’s receipt of an Order, such Order shall be deemed accepted and is hereby binding on Vendor. Buyer reserves the right to withdraw an Order at any time before such Order is accepted by Vendor.
3. Delivery Date. Vendor shall deliver the Goods in the quantities and on the date(s) specified in the Order or as otherwise agreed in writing by the parties (the “Delivery Date”). Timely delivery of the Goods is of the essence. Vendor will notify Buyer promptly of any delay or threatened delay in the delivery of the Goods. Buyer reserves the right to cancel the Order in whole or in part if Vendor is unable to deliver the Goods on or before the designated Delivery Date.
4. Quantity. Buyer is not obligated to any minimum purchase quantities or future purchase obligations under this Agreement. If Vendor delivers more or less than five percent (5%) of the quantity of Goods ordered, Buyer may reject any excess Goods. Any such rejected Goods shall be returned to Vendor at Vendor’s risk of loss and expense. If Buyer does not reject the Goods and instead accepts the delivery of Goods at the increased or reduced quantity, the Price for the Goods shall be adjusted on a pro-rata basis.
5. Delivery Location and Shipping Terms. Unless otherwise stated in the Order, shipment shall be made DDP (Delivery Duty Paid as defined under INCOTERMS 2020) to the address specified in the applicable Order (the “Delivery Location”). Delivery will be made during Buyer’s normal business hours or as otherwise instructed by Buyer. Vendor shall give written notice of shipment to Buyer when the Goods are delivered to a carrier for transportation. Vendor shall provide Buyer all shipping documents, including the commercial invoice, packing list, and any other documents necessary to release the Goods to Buyer. Upon Buyer’s request, or if noted in an applicable Order, Vendor shall provide Safety Data Sheets and/or Certificates of Analysis for the applicable Goods. Buyer’s Order number must appear on all shipping documents, shipping labels, invoices, correspondence, and any other documents pertaining to the Order.
6. Title and Risk of Loss. Title and risk of loss to all Goods will remain vested in Vendor until the Goods are delivered to Buyer at the Delivery Location. Vendor will bear the risk of loss and damage to any Goods rejected by Buyer and placed on transport for return to Vendor, except for loss, destruction of, or damage to any rejected Goods resulting from the negligent actions of Buyer, its officers, agents, or employees. Buyer will notify Vendor prior to shipping any Goods back to Vendor to ensure proper receipt and handling.
7. Packaging. All Goods shall be packed for shipment according to Buyer’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. Vendor must provide Buyer prior written notice if it requires Buyer to return any packaging material. Any return of such packaging material shall be made at Vendor’s expense and risk of loss. Buyer will not pay for the packaging or boxing of any Goods unless expressly stated in the Order.
8. Inspection and Rejection of Nonconforming Goods. The Buyer has the right to inspect the Goods on or after the Delivery Date for a reasonable period of time. Buyer, at its sole option, may inspect all or a portion of the Goods, and may reject all or any portion of the Goods if it determines the Goods are nonconforming or defective. Payment for any Goods will not itself constitute acceptance of the Goods nor will it constitute a waiver of any of Buyer’s rights, remedies or claims under these Terms. If Buyer rejects any portion of the Goods, Buyer has the right, effective upon written notice to Vendor, to: (a) rescind the Order in its entirety; (b) accept the Goods at a reasonably reduced price; or (c) reject the Goods and require replacement of the rejected Goods. If Buyer requires replacement of the Goods, Vendor shall, at its expense, promptly replace the nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective goods and the delivery of replacement Goods. If Vendor fails to timely deliver replacement Goods, Buyer may purchase and replace them with comparable goods from a third party and charge Vendor the cost thereof and terminate the applicable Order for cause pursuant to Section 16. Any inspection or other action by Buyer under this Section shall not reduce or otherwise affect Vendor’s obligations under this Agreement, and Buyer shall have the right to conduct further inspections after Vendor has carried out its remedial actions.
9. Price. The purchase price of the Goods is the price stated on the applicable Order (the “Price”). The Price set forth on the Order will be complete, and no additional charges of any type will be added to those set forth on the Order without Buyer’s express written consent. Vendor represents and warrants that the Price charged for the Goods is no more than the lowest price charged by Vendor to similar buyers under conditions similar to those of the applicable Order.
10. Payment Terms. Unless an alternative method of payment is specified in the Order, Vendor shall issue an invoice to Buyer on or any time after the completion of delivery and only in accordance with these Terms. Buyer shall pay all properly invoiced amounts due to Vendor within sixty (60) days after Buyer’s receipt of such invoice, except for any amounts disputed by Buyer in good faith. Without prejudice to any other right or remedy Buyer may have, Buyer reserves the right to set off at any time any amount owing to it by Vendor against any amount payable by Buyer to Vendor.
11. Warranties. Vendor warrants to Buyer that all Goods shall: (a) be manufactured, produced, transported, stored, and shipped by Vendor in full compliance with all applicable federal, state and local laws, statutes, rules, regulations, ordinances and orders; (b) be free from any defects in design; (c) for a period of twelve (12) months from the date of delivery, be free from any defects in workmanship and material; (d) conform to applicable specifications, drawings, designs, samples and other requirements specified by Buyer; (e) be free and clear of all liens, security interests or other encumbrances; and (f) not infringe or misappropriate any third party’s patent, trade secrets or other intellectual property rights. These warranties survive any delivery, inspection, acceptance, or payment for the Goods by Buyer. These warranties are cumulative and in addition to any other warranty provided by law, in equity or otherwise. If Buyer gives Vendor notice of noncompliance with this Section 11, Vendor shall, at its own cost and expense, promptly replace or repair the defective or nonconforming goods and pay for all related damages and expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods to Vendor and the delivery of repaired or replacement Goods to Buyer.
12. General Indemnification. Vendor shall defend (with counsel reasonably acceptable to Buyer), indemnify and hold harmless Buyer and its subsidiaries, affiliates, successors, and assigns, and its and their respective directors, officers, owners, and employees (collectively, “Indemnitees”) from and against any claim, demand, suit, action, proceeding, loss, injury, death, damage, liability, deficiency, judgment, settlement, interest, award, penalty, fine, cost or expense, including reasonable attorneys’ fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with the Goods purchased from Vendor or Vendor’s negligence, willful misconduct or breach of this Agreement. Vendor shall not enter into any settlement or consent to any judgment or order relating to a Loss without the applicable Indemnitee’s prior written consent.
13. Intellectual Property Indemnification. Vendor shall defend (with counsel reasonably acceptable to Buyer), indemnify and hold harmless Buyer and any Indemnitee against any and all Losses arising out of or in connection with any claim that the Goods or Buyer’s or Indemnitee’s use or possession of the Goods infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. Vendor shall not enter into any settlement or consent to any judgment or order relating to a Loss without the applicable Indemnitee’s prior written consent.
14. Insurance. At all times during the performance of its obligations hereunder, Vendor will maintain insurance policies as follows: (a) Commercial General Liability Insurance with a minimum aggregate limit of Two Million US Dollars ($2,000,000) and a limit of One Million US Dollars ($1,000,000) per occurrence; and (b) Umbrella Coverage with an aggregate limit of at least Five Million US Dollars ($5,000,000) and a limit of One Million US Dollars ($1,000,000) per occurrence. The insurance described in this Section 14 shall include coverage for assumed contractual liabilities, product liability/completed operations and advertising liability. To the fullest extent allowed under applicable law, Vendor shall require each insurer to waives any and all subrogation rights against Buyer. Each policy of insurance described in this Section 14 shall name Buyer as an additional insured under such policies, and Vendor shall provide Buyer with certificates evidencing the above insurance coverage. Buyer requires the same limits, coverages, and conditions from any subcontractor used by Vendor to perform under an Order, unless otherwise agreed to in writing by Buyer. Vendor will provide Buyer with written notice of any proposed cancellation, termination, non-renewal or other material change to such insurance coverage, in accordance with the respective policy provisions. Buyer may request proof of insurance at any time. The failure of Buyer to review or require evidence of insurance will not be construed as a waiver of Vendor’s obligation to maintain insurance in accordance with this Section 14. This Section 14 will not be deemed to limit in any way the liability of Vendor hereunder or to limit any rights Buyer may have including, without limitation, rights of indemnity or contribution.
15. Compliance with Law. Vendor is in compliance with and shall comply with all applicable laws, statues, rules, regulations, ordinances, and orders. Vendor has and shall maintain in effect all licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Vendor shall comply with all export and import laws of all countries involved in the sale of Goods under this Agreement. Vendor assumes all responsibility for shipments of Goods requiring any government import clearance. Buyer may terminate an Order if any government authority imposes antidumping duties, countervailing duties or any retaliatory duties on the Goods.
16. Termination. In addition to any remedies that may be provided under these Terms, Buyer may terminate any Order upon written notice to the Vendor, with immediate effect, if Vendor fails to perform any of its duties or obligations under this Agreement, and such failure continues uncured for a period of five (5) days after written notice is given to Vendor requesting it to cure such failure. If the Vendor becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then the Buyer may terminate this Agreement or any Order upon written notice to Vendor. If Buyer terminates this Agreement or any Order for any reason, Vendor’s sole and exclusive remedy is payment for the Goods received and accepted by Buyer prior to the termination.
17. Waiver. No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
18. Confidential Information. All non-public, confidential or proprietary information of the Buyer, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed or made available by Buyer to Vendor, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized by Buyer in a signed writing. Upon Buyer’s request, Vendor shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section 18. This Section shall not apply to information that is: (a) in the public domain; (b) known to the Vendor at the time of disclosure; or (c) rightfully obtained by the Vendor on a non-confidential basis from a third party.
19. Assignment. Vendor shall not assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement without the prior written consent of Buyer. Any purported assignment or delegation in violation of this Section 19 shall be null and void. No permitted assignment or delegation shall relieve the Vendor of any of its obligations hereunder.
20. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from this Agreement.
21. No Third-Party Beneficiaries. Except for the indemnification rights in Section 12 and Section 13, this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
22. Governing Law; Venue; and Jurisdiction. All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of Wisconsin without giving effect to any choice or conflict of law provision or rule (whether of the State of Wisconsin or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Wisconsin. Further, the United Nations Convention on Contracts for the International Sale of Goods and the United Nations Convention on the Limitation Period in the International Sale of Goods, as amended, is excluded and shall not apply to this Agreement.  Any legal suit, action or proceeding arising out of or relating to this Agreement shall be exclusively instituted in the federal courts of the United States of America or the courts of the State of Wisconsin in each case located in Ozaukee County, and each party irrevocably waives their right to a jury trial and submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
23. Cumulative Remedies. The rights and remedies under this Agreement are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
24. Amendment and Modification. No change to this Agreement is binding upon Buyer unless it is in writing, specifically states that it amends this Agreement and is signed by an authorized representative of Buyer.
25. Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the receiving party at the addresses set forth on the face of this Agreement or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section 25.
26. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
27. Survival. Provisions of this Agreement which by their nature should apply beyond their terms will remain in force after any completion, termination, or expiration of this Agreement.
28. Headings. The headings used in these Terms are for reference only and do not affect the interpretation of this Agreement.

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