PURCHASE ORDER TERMS

 

PURCHASE TERMS & CONDITIONS DATED MARCH 10, 2024

 

 

1. ACCEPTANCE OF ORDER

This Order becomes a contract: (1) when a signed acknowledgment, acceptance or confirmation is received by SWISS KRONO SC, LLC, SWISS KRONO, LLC or SWISS KRONO USA, INC. (“SK”); or (2) when shipment according to the schedule of all or any portion of the goods covered by this Order shall be made; or (3) when SK gives Vendor written approval of the price and delivery schedule of the goods or services as stated by Vendor, if Vendor’s written acknowledgment, acceptance or confirmation of this Order contains either: (a) a different price or delivery schedule or a different type of item or service; or (b) no price or no delivery schedule for the item(s) or service to which SK’s approval applies. EXCEPT AS PROVIDED IN THE PRECEDING SENTENCE, IT IS A CONDITION OF THIS ORDER THAT ANY PROVISIONS PRINTED OR OTHERWISE CONTAINED IN ANY ACKNOWLEDGMENT, ACCEPTANCE OR CONFIRMATION ISSUED BY THE VENDOR, INCONSISTENT WITH OR IN ADDITION TO THE TERMS AND CONDITIONS HEREIN STATED, AND ANY ALTERATION IN THIS ORDER, SHALL HAVE NO FORCE OR EFFECT, AND VENDOR BY SUCH ACKNOWLEDGMENT, ACCEPTANCE OR CONFIRMATION THEREBY AGREES THAT ANY SUCH PROVISIONS THEREIN OR ANY SUCH ALTERATIONS TO THIS ORDER SHALL NOT CONSTITUTE ANY PART OF THIS ORDER OF PURCHASE AND SALE.  IF SK AND VENDOR HAVE A FULLY SIGNED CONTRACT THAT HAS DIFFERING TERMS ABOUT THE PURCHASE OF GOODS OR SERVICES LISTED ON THIS ORDER, THEN ANY TERMS CONTAINED IN THE FULLY SIGNED CONTRACT SHALL SUPERCEDE ANY CONFLICTING TERMS HEREIN OR OTHERWISE SUPPLEMENT THIS ORDER, AS APPLICABLE.  Otherwise, this Order contains the entire agreement of the parties.  This Order is an offer to purchase by SK upon the terms and at the prices stated herein and may be withdrawn at any time prior to this Order becoming a contract in the manner stated above. Acceptance of this Order shall be deemed to constitute an agreement on Vendor’s part to the conditions hereof and supersedes all previous agreements, except as otherwise set forth herein. SK hereby objects to any different or additional terms in any acceptance or acknowledgement to this offer by Vendor.

 

2. CHANGES IN ORDER

SK may, from time to time, order changes in the quantity and description of the goods or services ordered; whereupon, the price or time of performance, or both, shall be adjusted within reasonable and appropriate limits, as agreed to in writing by Buyer and Vendor at the time of such change.  Time is of the essence of this Order.

 

3. PERFORMANCE AND WAIVER

Vendor shall deliver the goods or services to be purchased/performed hereunder on or before the date required unless otherwise agreed in writing by SK. Any failure by SK to require strict performance of any terms of this Order shall not be deemed a waiver of SK’s right to insist upon strict performance of Vendor’s remaining obligations hereunder.

 

4. INSPECTION

All goods or services provided hereunder are subject to inspection by SK and may be rejected if not strictly in accordance with the terms hereof. Payment shall not constitute acceptance. Rejected goods shall, at SK’s option, be held for Vendors instructions at Vendor’s risk, or shall be returned at Vendor’s expense. Any prior payment by SK on rejected goods shall be immediately refunded, and the rejected goods shall not be replaced without an additional order from SK. Buyer may commence inspection prior to delivery at Vendor’s plant or elsewhere, but the goods covered by this Order are subject to rejection upon final inspection and use. No charges are or will be allowed for containers, packing, crating, drayage, or storage unless such charges are specifically provided for in this Order. SK’s count shall be accepted as final on all shipments not accompanied by packing list giving quantity and description of material and Purchase Order number.  Payment for services may be withheld until completion by Vendor and inspection by SK.

 

5. WARRANTIES

Vendor warrants all goods delivered hereunder to be free from any defect and liens whatsoever. Vendor warrants all services delivered hereunder will be performed in a good and workmanlike manner.  Vendor is aware of the particular purpose of all such goods designed, specified, or selected by Vendor, and warrants that all such goods are merchantable and fit for such purpose. Vendor warrants all goods delivered hereunder as to description, sample, model, quality, merchantability, and productiveness. The warranties provided for herein are in addition to those otherwise provided or implied by law or customarily given by Vendor, other manufacturers of this type of good or service, or other manufacturers in this industry with respect to goods substantially similar to those covered by this Order. Vendor’s representation of the quality of the goods or services delivered hereunder shall be an essential condition of the Order, and any noncompliance therewith shall give SK the right to reject any of the goods or services and to repudiate the Order.

 

6. INFRINGEMENTS

Vendor expressly warrants that the goods to be provided hereunder do not infringe any patent, copyright, trademark, trade name, trade secret or other proprietary right and, in consideration of the Order, hereby agrees at its expense (i) to dispose of any threats or charges of infringement made against SK; (ii) to defend any and all suits for patent, copyright, trademark, trade name, trade secret or other proprietary right claim for infringement that may be brought against SK resulting from the Order, or from the use or sale of the goods to be provided hereunder; and (iii) to pay any and all expenses, costs, and damages that may be incurred by SK or awarded in any such suits.

 

7. CANCELLATION

SK reserves the right at any time and from time to time for any reason to cancel all or any part of the undelivered portion of this Order. If this Order is cancelled as a result of any default by Vendor of the terms hereof, Vendor shall be liable for all damages and costs of SK resulting from such default, including, without limitation, attorneys fees, court costs, and interest on all such damages and costs from the date incurred at the lower of: (1) eighteen percent (18%) per annum; or (2) the maximum legal rate allowed, without any further notice or demand. Upon receipt of notice of cancellation from SK, Vendor shall immediately stop work under this Order, stop the placement of further orders or subcontracts outstanding hereunder, and take all necessary action to stop cost commitments and to protect any property in Vendor’s possession in which SK has or may acquire an interest. In the event that Vendor was not in default of this Order at the time of receipt of said cancellation notice, and if the parties, through negotiation, are unable, within six (6) months after the date of cancellation, to agree upon the amount of fair compensation to the Vendor for its performance through such date, SK shall pay Vendor: (a) the Order price for completed items and (b) the actual costs incurred by Vendor which are properly allocable under recognized commercial accounting practices to the portion of this Order on which work has been started but not completed, plus five percent (5%) of such costs, which is agreed by the parties as a fair profit. In any event, the total of payments under (a) and (b) above together with payments made pursuant to this Order prior to cancellation shall not exceed the aggregate price specified in this Order. SK may at any time audit all elements of Vendor’s termination costs. SK shall have no obligation to pay, and the right to refuse payment of any claim by Vendor hereunder which is not asserted in writing within three (3) months following the date of cancellation. In the event of any cancellation by SK hereunder, Vendor shall promptly deliver to SK all property in Vendor’s possession in which SK has or may acquire an interest, including, without limitation, all such finished product and work in process.

 

8. CONFIDENTIAL INFORMATION

Vendor acknowledges that in the course of providing the goods or services contemplated herein: (1) Vendor will have access to certain confidential and proprietary information which constitutes trade secrets, and (2) Vendor will have access to certain other confidential and proprietary information that may not constitute trade secrets as defined by law. Vendor agrees: (i) to hold in trust and confidence for SK and to not disclose to any third party without prior written consent of SK, any proprietary information, whether it is tangible or intangible; (ii) not to use the proprietary information for Vendor’s benefit or for the benefit of any third party; and (iii) to return to SK all proprietary information which is tangible upon demand by SK. Vendor and SK agree that Vendor’s obligations under this section as it relates to confidential information that does not constitute trade secrets shall apply for a period of three (3) years from the date of the last delivery by Vendor to SK under this Order.

 

9. DELIVERY AND FORCE MAJEURE

Vendor shall deliver the goods to SK or perform the services at the location(s) and on the delivery or service date(s) set forth in the Order Cover Page.  The risk of loss shall remain with Vendor until acceptance of the goods or services by SK.  Insofar as possible, shipments of goods will be complete and partial shipments will be avoided. Shipping lists, tags, invoices, and related documents shall be itemized using the numbers, phrases, or other descriptive devices used to describe the goods in this Order. Time of delivery of the goods or services is of the essence of this Order. However, if Vendor is delayed in manufacture, shipment, or delivery of the goods due to any breach of this Order by SK; fire, flood, windstorm, or other act of God; labor disputes which Vendor could not reasonably anticipate; or acts of war, terrorism, or civil disturbance, then the date of delivery shall be extended for such reasonable time as SK may agree to in writing; provided that no such extension shall be granted unless Vendor gives written notice of delay to SK within three (3) days after Vendor first has knowledge of the event causing such delay.  If SK is unable (i) to use or receive the goods; or (ii) to provide access to the appropriate location, equipment, or other material items within SK’s sole and exclusive control which are material to the Vendor providing the services and such inability is due to any breach of this Order by Vendor; fire, flood, windstorm, or other act of God; labor dispute which SK could not reasonably anticipate; or acts of war, terrorism, or civil disturbance, then SK may, at its option, either extend the date of delivery for such reasonable time as Vendor may agree to in writing or terminate this Order.

 

10. FEDERAL AND STATE LAWS

Vendor agrees to comply with all applicable Federal, state and local laws, and all rules, regulations, orders, and requirements issued pursuant to such laws and to indemnify SK against all liability for Vendor’s failure to comply.

 

11. TAXES

SK shall not pay Vendor any state or local sales, use, or similar tax unless separately stated and itemized herein, or any Federal Excise Tax, unless included in the prices stated herein, and Vendor agrees that, except as otherwise provided herein, all such taxes, which, at the date of this Order Vendor is required by law to collect from SK, are so included or separately stated and itemized herein. Vendor further agrees that the prices stated herein do not, and the amounts invoiced hereunder shall not, include any tax with respect to which exemption is available or indicated by SK herein or otherwise, or any Federal Excise Tax with respect to which SK has furnished an applicable exemption certificate. If after the date of this Order, and prior to date of shipment, any taxes charged to SK herein (whether separately stated and itemized or included in the prices stated herein) are increased or Vendor is relieved in whole or in part of the burden of said taxes the prices (or taxes if separately stated) shall be correspondingly increased or decreased.

 

12. EXCESS SHIPPING COSTS

Vendor agrees to assume any and all excess transportation costs caused by failure to comply with (a) SK’s routing instructions contained herein or issued separately; or (b) packing requirements of carrier Freight Classifications and tariffs naming applicable rate on date of shipment.

 

13. SETOFF

Vendor’s claims for amounts due or to become due from SK shall be subject to deduction by SK for any setoff or any counterclaim arising out of this Order or any other agreement by and between SK and Vendor.

 

14. INDEMNIFICATION

Vendor shall indemnify SK against any liability, loss, damage, cost or expense of any kind or nature incurred by SK arising out of or caused in any manner by this Order.

 

15. GOVERNING LAW

This Order and the contract resulting from acceptance by Vendor is deemed made in and shall be governed in accordance with the laws of the State of South Carolina in all respects.

 

16. ARBITRATION

Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration. It is agreed that the Federal Arbitration Act is applicable and that the arbitration will be administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.

 

17. ASSIGNMENT

Neither the benefits to, nor the obligations of Vendor hereunder shall be assigned or delegated, without prior written consent of SK.

 

18. INSURANCE AND PROTECTION OF THE WORK AND PROPERTY

 

• During the performance of this Order, Vendor, when delivering goods or providing services on SK’s property shall maintain and keep in force, at its own expense, the following insurance coverages and minimum limits, unless high minimum requirements are set forth in a fully signed contract between SK and Vendor that requires SK to purchase the goods or services listed on this Order, or as otherwise set forth in an exhibit or attachment to this Order:
  • Workers Compensation Insurance, with statutory limits as required by the laws and regulations applicable to the employees of Vendor who are engaged in the performance of this Order;
  • Employers Liability Insurance, for employee bodily injuries and deaths, with a limit of $1,000,000 each accident;
  • Comprehensive or Commercial General Liability Insurance, covering claims for bodily injury, death and property damage, including Comprehensive Form, Premises and Operations, Independent Contractors, Products and Completed Operations, Personal Injury, Contractual, and Broadform Property Damage liability coverages, with limits as follows: Each Occurrence/General Aggregate Limits as follows: (a) For bodily injury, death and property damage each or per occurrence $1,000,000; (b) General aggregate $2,000,000; with coverage for Products and Completed Operations continuing in full force and effect for three (3) years following completion, expiration or termination of this Order;
  • Comprehensive Automobile Liability insurance, covering owned, non-owned, hired and other vehicles, with limits as follows: Combined Single Limit as follows: For bodily injury, death and property damage per occurrence $1,000,000;
  • Umbrella liability in the amount of $10,000,000.00 per occurrence, $10,000,000.00 annual aggregate
• All such policies of insurance shall provide that the same shall not be cancelled nor the coverage modified not the limits changed without first giving thirty (30) days prior written notice thereof to SK. SK shall be named as an additional insured on all liability policies and Vendor shall provide SK with a Certificate of Insurance upon acceptance of this Order demonstrating compliance with this Section.

 

19. COMPLETE AGREEMENT

This Order, any attachment referenced herein, and any fully signed contract between SK and Vendor that requires SK to purchase the goods or services listed on this Order constitutes the entire agreement between the parties hereto with regard to the subject matter hereof. SK shall not be bound by any agents or employees representation, promise, or inducement not set forth in this Order. No course of prior dealing between the parties and no usage of trade shall be relevant or admissible to supplement, explain, qualify, or vary any of the terms of this Order, except the warranties provisions and except as otherwise stated herein.  This Order can only be modified by a writing signed by SK.