(a) THIS ORDER IS BUYER’S OFFER TO SELLER AND DOES NOT CONSTITUTE AN ACCEPTANCE BY BUYER OF ANY OFFER TO SELL, QUOTATION OR PROPOSAL OF SELLER AND ANY REFERENCE TO ANY OFFER TO SELL, QUOTATION OR PROPOSAL IS SOLELY FOR THE PURPOSE OF INCORPORATING THE DESCRIPTION AND SPECIFICATIONS OF THE GOODS AND SERVICES CONTAINED THEREIN TO THE EXTENT THAT SUCH DESCRIPTION AND SPECIFICATIONS DO NOT CONFLICT WITH THE DESCRIPTION AND SPECIFICATIONS ON THE FACE OF THIS ORDER. THIS ORDER CONSISTS ONLY OF THE TERMS CONTAINED HEREIN AND ON THE FACE OF 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 GOODS OR PERFORMING THE SERVICES CALLED FOR BY THIS ORDER SELLER AGREES TO THE TERMS CONTAINED IN THIS ORDER. ANY ADDITIONAL OR DIFFERENT TERMS CONTAINED IN ANY ACKNOWLEDGMENT OF THIS ORDER, INVOICE OR OTHER DOCUMENT PROVIDED BY SELLER SHALL BE DEEMED OBJECTED TO BY BUYER WITHOUT NEED OF FURTHER NOTICE OF OBJECTION AND SHALL BE OF NO EFFECT NOR IN ANY CIRCUMSTANCE BINDING UPON BUYER UNLESS ACCEPTED BY BUYER IN WRITING. THE TERMS SET FORTH HEREIN CAN ONLY BE WAIVED OR AMENDED IN WRITING BY AN AUTHORIZED OFFICER OF BUYER. IF FOR ANY REASON THIS ORDER SHALL BE DEEMED AN ACCEPTANCE OF ANY OFFER MADE BY SELLER, SUCH ACCEPTANCE IS EXPRESSLY CONDITIONED UPON SELLER’S ASSENT TO THE TERMS CONTAINED HEREIN.
2. WARRANTIES. Seller warrants that: (i) Seller will not violate any foreign, federal, state or local statue, regulation, rule, ordinance, order or other law, including the Fair Labor Standards Act, Occupational Safety and Health Act and Equal Employment Opportunity Act, (ii) the execution, delivery and performance of this order by Seller will not conflict with or violate any provision of any law, rule, order, judgment, injunction, decree or agreement with any third party and (iii) Seller maintains all necessary permits, licenses and other authorizations to perform its obligations under this order.
Seller further warrants that all goods and services covered by this order shall (i) conform to the specifications, drawings, samples or other description upon which this order is based, (ii) be fit for the purposes intended by Buyer, (iii) be merchantable, (iv) be of good material and workmanship, (v) be free from defect in workmanship and material, (vi) be free and clear of all liens and encumbrances and (vi) be provided in accordance with current, sound and generally-accepted industry practices by qualified personnel. Inspection, acceptance or use of the goods or services furnished hereunder shall not affect Seller’s obligations under this order, and such warranties shall survive inspection, acceptance and use. This warranty shall run to Buyer, its successors, assigns and customers and the users of its products. Seller agrees to promptly replace or correct any goods or services not conforming to the foregoing warranties, without expense to Buyer, when notified of such non-conformity by Buyer. In the event of any failure by Seller to promptly correct defects in or replace nonconforming goods or services, Buyer, after reasonable notice to Seller, may make such corrections or replace such goods and services and Seller will reimburse Buyer for the costs incurred by Buyer. Seller shall pass through to Buyer any manufacturer warranties applicable to any goods or services provided hereunder.
3. INDEMNITY AND INSURANCE. Seller shall defend and indemnify Buyer against all damages, liabilities, claims, losses and expenses (including attorneys’ fees) arising out of, or resulting in any way from (i) the goods or service provided hereunder, including any claim such goods or services infringe the rights of any third party, (ii) a breach by Seller of the terms of this order or (iii) any act or omission of Seller, its agents, employees or subcontractors. Seller shall maintain, at its own expense, comprehensive general liability insurance (including products liability, personal injury liability, property damage liability, contractors’ liability and completed and operations liability coverage), automobile liability insurance (including non-owned automobile liability) and workers compensation and employers’ liability insurance as will adequately protect Buyer against such damages, liabilities, claims, losses and expenses (including attorney’s fees). Such policies shall name Buyer as an additional insured and Seller shall provide certificates of insurance evidencing its insurance coverage when requested by Buyer. All insurance coverage will include provisions providing Buyer with at least 30 days’ prior written notice of insurer’s intent to cancel or change such coverage.
4. DELIVERY. Each delivery of goods to Buyer shall (i) be labeled with Buyer’s order number, (ii) contain an itemized packing slip, (iii) be properly packed, marked and shipped in such manner as will meet the requirements of a common carrier, provide for efficient handling and insure adequate protection against damage to the goods and (iv) be shipping and routed in accordance with Buyer’s instructions.
5. TIME OF PERFORMANCE. Seller shall deliver the goods or provide the services at such times set forth in this order. Time of performance is of the essence.
6. TERMINATION. Buyer may at any time terminate this order in whole or in part for its convenience upon written notice to Seller. No expiration or other termination of this order will affect the parties’ respective rights and obligations accruing before the date of expiration or termination.
7. PROPRIETARY INFORMATION. The specifications, drawings, designs, manufacturing data and other information provided to Seller by Buyer in connection with the performance of this order are the property of Buyer and are disclosed in confidence. Seller shall not disclose any such information to any other person or entity, or use such information itself for any purpose other than performing this order.
8. BUYER PROPERTY. Seller shall keep in good condition, be responsible for and protect against loss of or damage to materials, equipment, tools, dies, molds and other property owned by Buyer (including such items made or provided by Seller at Buyer’s cost) that are in the possession or control of Seller; provided, however, that Seller shall not be responsible or liable for ordinary wear and tear to such items arising from processing or manufacturing in accordance with good shop practices. Seller shall not use such items except for performance of work hereunder. All such items shall be plainly marked or otherwise adequately identified by Seller as property of Buyer and shall be safely stored separately and apart from Seller’s property. Unless otherwise directed by Buyer, upon completion of deliveries made on this order, or upon cancellation of this order for any reason, Seller shall return all such items to Buyer at Buyer’s direction. Buyer shall have the right at any time to inspect and to take possession of any such items, including, without limitation, the right of entry for such purpose.
9. AUDIT AND INSPECTION. Seller shall maintain and make available to Buyer and its agents all records and books of account detailing any amounts invoiced under this order. Seller shall make these records available for audit during Seller’s regular business hours at Seller’s office and available in electronic form at Buyer’s request. Buyer may send one or more of its employees or agents to inspect, during Seller’s regular business hours and upon reasonable advance notice, those portions of Seller’s facilities at which any goods provided hereunder to Buyer are manufactured and stored.
10. MISCELLANEOUS. Seller is an independent contractor and neither it nor any of its employees is entitled to any Buyer employee benefit. The rights of all parties hereunder and the construction of every provision hereof shall be governed by the laws of the State of Ohio, without giving effect to principles of conflicts of law. This order merges all prior communications of the parties, supersedes all prior agreements and constitutes the entire agreement between Buyer and Seller with respect to the goods and services specified on the front of this order. If any provision of this agreement is unenforceable, those provisions that are not unenforceable remain in effect. The rights and remedies set forth herein are not exclusive and are in addition to all other rights and remedies available at law or in equity, including under the Uniform Commercial Code. Buyer’s failure to insist upon performance of any of the terms or conditions of this order or to exercise any right or privilege shall not thereafter waive the future performance of such term, condition, right or privilege or of any other terms, conditions, rights or privileges, whether of the same or similar type. Seller may not assign this order or any part hereof without Buyer’s written consent and any attempted assignment by Seller of this order or any part hereof without written consent shall be void. Seller will not subcontract any of the obligations of Seller hereunder without Buyer’s written consent. Any permitted subcontract will not relieve or discharge Seller from any obligation or liability arising under this order. The obligations of Seller under this Section and Sections 1, 3, 7, 8 and 10 shall survive the termination or expiration of this order.
CMI GROUP OF COMPANIES
STANDARD TERMS AND CONDITIONS FORM 102 REV. B