Terms and Conditions of Purchase

The offer by Contech Engineered Solutions LLC (“Buyer") to purchase the goods and/or services described in the purchase order (the "Order") to which these terms and conditions are included or referenced is expressly conditioned upon the acceptance by the designated supplier (the "Supplier") of the terms and conditions set forth herein.  These terms and conditions are incorporated into the Order and Buyer rejects all different or additional terms and conditions of Supplier contained in any acceptance, sales acknowledgement, quotation, catalog, proposal or other document unless such other terms are expressly agreed to in writing by an authorized representative of Buyer. Supplier’s signature to the Order, or acknowledgment or commencement of performance shall be deemed an acceptance of these terms and conditions. 

DELIVERY AND DELAY. Time is of the essence. Shipments or deliveries (as specified in the Order) shall be strictly in accordance with the quantities and schedule specified in the Order or, if no schedule is specified, a mutually agreed upon schedule. Supplier shall not make shipments or deliveries earlier than date(s) shown without written consent of Buyer. If goods are received in advance of scheduled delivery date(s), Buyer may return them or store them at Supplier's expense. If at any time it appears Supplier will not meet the schedule specified in the Order, Supplier shall promptly notify Buyer in writing of the reasons for and estimated duration of the delay and if requested by Buyer, ship via air or other fast transportation to avoid or minimize delay to the maximum extent possible, the added cost to be borne by Supplier.  Acceptance by Buyer of late deliveries shall not relieve Supplier of the obligations to make future deliveries on schedule and does not constitute a waiver of any of Buyer's rights. Buyer shall have no liability for (i) refusal to accept, (ii) reshipment to Supplier, and/or (iii) for payment for goods delivered to Buyer which are in excess of quantities specified in the Order. Buyer may return to Supplier, at Supplier's expense and risk, quantities in excess of those stated in the Order, and Supplier shall pay Buyer's costs of handling, sorting, packing and returning such quantities. Buyer may from time to time change delivery or service schedule(s) upon prior notice to Supplier. Title and risk of loss or damage to any goods shall pass to Buyer at Buyer's location (or other location) as designated by Buyer in the Order.  Any services shall be performed in a prompt and timely manner in accordance with the schedule specified in the Order or as otherwise mutually agreed.

PACKAGING AND SHIPMENT. Goods that Supplier sells to Buyer shall be carefully and properly secured, packed, packaged, marked and otherwise prepared for shipment in accordance with any requirements specified in the Order and, in any event, in a manner which is in accordance with good commercial practice, acceptable to common carriers for shipment at the lowest rate, and adequate to ensure safe arrival at the designated destination. All containers will be marked by Supplier with any necessary lifting, handling and shipping information as well as order numbers and date(s). Any materials required by the Order that are deemed hazardous will be prepared, secured, packed, packaged, marked and shipped by Supplier to comply with all present federal, state and local regulations. Any goods damaged in transit due to improper or inadequate packing shall be repaired or replaced at Supplier's expense. Unless otherwise specified in the Order, all shipments will be on the basis of FOB Destination. If Buyer agrees to pay freight, Supplier will include a copy of the freight bill including the weight of items shipped with each invoice. A packing list must be enclosed in all shipments showing the Order number and exact quantity and description of the goods shipped.

INVOICES. Supplier shall submit an invoice to Buyer upon completion of the ordered services.  For goods ordered, Supplier agrees to issue a separate invoice for each shipment referencing Order number, item number, description of items, sizes, quantities, unit prices and extended totals. Unless otherwise specified in the Order, no invoice shall be issued prior to shipment of goods. Taxes that are to be collected by Supplier shall be stated separately and shall be remitted by Supplier to the appropriate taxing authority; data and registration numbers that will allow Buyer to obtain appropriate credit for taxes charged shall be included.  

PRICE. Unless otherwise specified on the Order, all prices are in U.S. dollars. The Order must not be filled at a price higher than that specified in the Order, and any change in price must be agreed via a change order in writing, signed by an authorized representative of Buyer. If at any time it is determined that Buyer has overpaid Supplier for goods purchased hereunder, Supplier shall promptly refund to Buyer the amount of such overpayment.  Unless otherwise provided in the Order, all prices shall be FOB Destination, with no additional charges or fees for packaging, boxing, crating, handling or other charges. Supplier's prices include any and all       customs duties.

PAYMENT AND TERMS. Unless specified otherwise in the Order, upon Supplier's satisfactory delivery of the goods or performance of the services, Buyer will pay Supplier's invoice under terms of net 45 from Buyer's receipt of goods or date of receipt of a proper and correct invoice, whichever is later, subject to adjustment for over-shipment, shortage and rejection. Such payment shall constitute complete and final satisfaction for any actual and potential fees or charges for the billing period covered by the invoice. Terms of payment shall be considered satisfied as of the date of postmark, or in the case of electronic funds transfer, the date of transmission.

TAXES. Buyer will not be liable for any taxes with respect to the Order, except for sales, use or other taxes imposed by any governmental authority for the purchase of the goods or services supplied under the Order by Supplier, which Supplier is required by law to collect from Buyer. Buyer shall not be liable for any such taxes if Buyer has provided Supplier evidence of a valid tax exemption.

WARRANTY; STANDARD OF CARE. Supplier warrants that all goods supplied hereunder (i) shall be free from defects in design, workmanship and material, and shall conform to the specifications, drawings, and performance requirements specified in, or applicable to, the Order, (ii) shall be merchantable and fit for the use ordinarily intended or specified in the Order; and (iii) shall be free of any claim (including any claims that the goods provided by Supplier or use thereof by Buyer infringes any intellectual property) of any third party. Supplier shall perform any services in accordance with generally accepted industry practices using reasonable care and skill consistent with that ordinarily exercised by members of the industry under similar conditions. In the event of any warranty claim (a) with any goods supplied, Buyer may, at its option, and upon written notice to Supplier (i) retain the goods with an equitable adjustment in the price; (ii) have the goods repaired or replaced at the original delivery point by Supplier; or (iii) return the goods at Supplier's expense for refund, or (b) with any services performed, then upon written notice from Buyer, Supplier shall, at its sole cost and expense, promptly take such actions as are necessary to correct any failure to meet such standard of care hereunder. In the event Supplier does not correct any such warranty claim within a reasonable time, Buyer shall have the right to have applicable corrections made, and Supplier shall pay Buyer the costs thereof promptly after receipt of an invoice. Neither the acceptance of nor payment for any goods or services or any part thereof, nor the partial or entire use of the goods or service work product by Buyer, shall constitute a waiver by Buyer of any Supplier warranties.

INSPECTION AND TESTING. Buyer shall have access, upon prior notice and during normal business hours, to Supplier's premises to ensure compliance with the Order. Goods purchased under the Order may be subject to inspection and testing by Buyer at any time or point during manufacture and, in any event, shall be accepted subject to final inspection and approval by Buyer. If inspection or test is to be made at Supplier's location, Supplier shall provide reasonable assistance and facilities for the safety and convenience of Buyer's inspection personnel. Buyer reserves the right to reject non-conforming or defective goods. Payment for the goods shall not be deemed acceptance. Goods rejected by Buyer will be returned or stored at Supplier's expense.

ASSIGNMENTS; SUBCONTRACTING; SET OFF. Supplier may not assign, subcontract or transfer the Order, the work required to be done or any payments to be made hereunder without Buyer's prior written approval (such approval not to be unreasonably delayed, conditioned or withheld). Any amounts owing to Buyer from Supplier may be set off against amounts otherwise due to Supplier under this or any other order.

CONFIDENTIALITY OF INFORMATION. All specifications, documents, artwork, drawings, formula or manufacturing data delivered to Supplier by Buyer, and any other non-public, proprietary, information that Buyer discloses to Supplier, remains the property of Buyer, and is provided solely for the purpose of Supplier's performance of the Order, and any such information shall not be disclosed by Supplier to any third parties nor used by Supplier for any purpose other than fulfillment of the Order, and shall be returned to Buyer immediately upon Buyer's request. Confidential information shall not include information that (i) is or becomes generally available to the public other than as a result of Supplier’s breach of this Section 10 or (ii) is obtained by Supplier on a non-confidential basis from a third-party that, to Supplier’s knowledge, was not legally or contractually restricted from disclosing such information.  This obligation of confidentiality and non-use shall remain in effect for a period of five (5) years following completion of the Order; provided that as to any item of information that rises to the level of, and remains, a trade secret under applicable law, such period of confidentiality and non-use shall continue for the maximum period of time under applicable law.  To the extent the parties signed a non-disclosure agreement related to the Order, such non-disclosure agreement will supersede this Section 10.

INDEMNITY. Supplier shall, at Supplier's sole cost and expense, release, defend, indemnify and hold harmless Buyer, its affiliates and their respective directors, officers, agents, employees and shareholders, from and against all claims, demands, disputes, complaints, causes of action, suits, judgments, losses and damages (including reasonable attorneys' fees) of any kind arising from or relating to (i) any breach by Supplier of this Order; or (ii) any negligent or more culpable act or omission of Supplier or any of Supplier’s employees, representatives, agents, or others acting on its behalf.

INSURANCE. Supplier agrees to carry, at its sole expense:

1. Commercial General Liability Insurance including Personal and Advertising Injury and Products/Completed Operations, covering all goods supplied and all operations and work hereunder in the amounts of not less than $1,000,000 per occurrence and $2,000,000 general aggregate;
2. Automobile Liability Insurance for owned, non-owned and hired automobile liability in an amount not less than $1,000,000 combined single limit;
3. Worker’s Compensation Insurance in such amounts as required by law and Employer’s Liability Insurance covering all operations and work hereunder in an amount not less than $1,000,000 per accident and $1,000,000 policy limit;
4. Cargo Insurance (if applicable) in an amount not less than $100,000 or not less than the replacement value of the shipment;
5. Umbrella Liability Insurance in an amount not less than $2,000,000 per occurrence and $2,000,000 annual aggregate; and
6. Professional Liability Insurance (if applicable) in an amount not less than $1,000,000.

Buyer and its affiliates and subsidiaries, their respective directors, officers, agents and employees shall be named as additional insureds on all of the above policies (except Worker’s Compensation and Professional Liability).  All such insurance policies (except cargo insurance) shall be endorsed to include a waiver of subrogation clause in favor of Buyer and its affiliates and subsidiaries, their respective directors, officers, agents and employees.  All of the above policies are primary.  Policies cannot be canceled, reduced, or otherwise materially changed except upon thirty (30) days prior written notice to Buyer.

LIMITATION OF LIABILITY. Supplier agrees that Buyer will not be liable to Supplier or any third party, in contract, tort or otherwise, for any loss of profits or business, or any special, incidental, indirect, exemplary, punitive or consequential damages, arising from or as a result of the Order, or any order or any agreement between the parties relating to the products, services or deliverables Supplier provides under the Order, even if Buyer has been advised of the possibility of such damages.

COMPLIANCE WITH LAWS. Supplier warrants that the goods and services have been produced and provided in compliance with applicable federal, state, and local laws, ordinances and regulations. It is the obligation of Supplier to advise Buyer of any precautions necessary in the storage and handling of goods purchased pursuant to the Order.

ADVERTISING. Unless otherwise authorized in writing by Buyer, Supplier will not advertise or publicize its relationship with Buyer in the course of advertising or promoting its products or services.

SUPPLIER SUPPORT AND TRAINING WORK ON BUYER'S PREMISES. Supplier agrees to provide Buyer with such assistance, advice and training as reasonably required to permit Buyer to use and operate the goods and services purchased under the Order. In the course of any work performed on Buyer's premises by Supplier in fulfillment of the Order, Supplier will comply with all safety and security rules of Buyer and shall take all precautions required to prevent injury to persons or property during such work.

CANCELLATION AND SUSPENSION.  Buyer reserves the right to cancel the Order if shipping date(s) specified is not satisfactory to Buyer or if Supplier fails to perform within the time specified.  Buyer reserves the right, at any time and from time to time, to suspend the Order, in whole or in part.  In the case of suspension, Supplier shall take all reasonable steps to avoid additional costs allocable to the Order.  Claims for adjustment due to suspension must be made by Supplier in writing as soon as practicable, but no later than thirty (30) days from the date of notice of suspension and shall be supported with information and records necessary to permit Buyer to make a determination on the adjustment.   

TERMINATION AND DEFAULT. Upon the occurrence of a default, Buyer may terminate the Order upon oral or written notice without prejudice to any other rights or remedies it may have in law or equity. The term "default” as used herein means the occurrence of any of the following events: (i) the failure of Supplier to punctually and properly perform any agreements or conditions of the Order, (ii) the insolvency of Supplier, (iii) the appointment of a receiver, administrator, administrative receiver or liquidator with respect to Supplier or any of its assets, (iv) the adjudication of Supplier as bankrupt or the grant of any other relief against Supplier under any bankruptcy, reorganization, debtor's or insolvency laws now or hereafter existing, (v) the voluntary assignment by Supplier of its assets for the benefit of creditors, (vi) the good faith belief by Buyer that the prospect of performance by Supplier of any of Supplier's obligations under the Order is materially impaired. In the event of such termination, Buyer shall be relieved of all further obligations hereunder, and Supplier shall indemnify Buyer against and hold Buyer free and harmless from any losses sustained by reason thereof or damages incurred by Buyer in obtaining substitute goods. Buyer's remedies shall be cumulative and shall include any remedies allowed by law or in equity. No exercise by Buyer of any right hereunder shall preclude Buyer from exercising any other legal or equitable right or remedy available to it.

WAIVER.  No waiver of any provision hereof shall be effective unless made in writing and signed by the waiving party.  The failure of a party to require the performance of any term or condition hereof shall not be considered a waiver of any other term or condition or of the same term or condition at another time.  

INDEPENDENT CONTRACTOR. Supplier shall operate as an independent contractor in fulfillment of the Order and shall have no authority to bind Buyer. No employee of Supplier or any Supplier subcontractors shall be deemed an employee of Buyer, and Supplier acknowledges that it is solely responsible for the compensation and conduct of its employees or subcontractors providing services pursuant to the Order.

SEVERABILITY. If any provision of the Order or hereof or the application thereof to any person, entity, or circumstance shall be invalid or unenforceable to any extent, then such provision or application shall be modified to the minimum extent necessary to render it valid and enforceable, and the remainder of such provisions and the application thereof to the parties hereto and the transactions contemplated hereby shall not be affected and shall be enforced to the greatest extent permitted by law.

GOVERNING LAW. Any dispute arising hereunder shall be governed by the internal laws (excluding all conflict of laws rules) of the State of Georgia and any applicable federal laws of the United States of America. Each party hereby irrevocably submits to the exclusive jurisdiction of the United States District Court serving Fulton County, Georgia, or any court of the State of Georgia serving Fulton County, Georgia in any action, suit or proceeding arising out of or relating to the Order or any of the transactions contemplated thereby and agrees that any such action, suit or proceeding shall be brought only in one of such courts. Each party hereby irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of venue of any such action, suit or proceeding brought in such a court, and any claim that any such action, suit or proceeding brought in such a court has been brought in an inconvenient forum. AS A MATERIAL INDUCEMENT TO ENTER INTO THIS ORDER, BOTH PARTIES WAIVE THE RIGHT TO TRIAL BY JURY IN AN PROCEEDING ARISING OUT OF OR RELATED TO THIS ORDER.  

PREVAILING PARTY. In the event that it becomes necessary for a party hereto to initiate a suit or other legal proceeding against the other party for breach of the terms or conditions of the Order, either for recovery of monies paid or for damages incurred, the prevailing party shall be entitled to recover, in addition to damages or recovery of monies paid, attorneys' fees, costs and disbursements incurred in connection with such suit or legal proceeding.

REV. 11/24