EHMKE MANUFACTURING COMPANY, INC. STANDARD TERMS AND CONDITIONS
1. Definitions. The word “Buyer” whenever used herein shall mean EHMKE MANUFACTURING COMPANY, INC. The party with which this order is placed is referred to herein as “Seller.” The products, machinery, equipment, supplies and/or labor or services covered by this Purchase Order are referred to herein as “Goods.” The terms “Purchase Order,” herein and “hereto” refer to and include the face of this document, these Standard Terms and Conditions and any other documents specifically made a part of this Purchase Order.
2. Acceptance: Entire Agreement. Buyer shall not be bound by this Purchase Order until Seller executes and returns to Buyer the acceptance copy of this order. No terms and conditions at variance with, or additional to, those contained herein shall be applicable hereto or to this Purchase Order unless specifically agreed to in writing by an authorized representative of Buyer. Any agreements, negotiations or understandings of the parties prior to the date of this Purchase Order, whether written or oral, are merged herein and superseded hereby. No modification of the provisions hereof shall result from Buyer’s acceptance of the Goods or receipt from Seller or an invoice or acceptance or other form containing terms and conditions in additional to, or inconsistent with, the provisions hereof.
3. Changes to Order and Overage. Buyer shall have the right to make changes in this Purchase order. Such changes shall include, but not be limited to, changes in any drawings and specifications upon which this Purchase Order is based. Should any change affect any prices (or delivery terms) contained in this Purchase Order, Seller shall, before proceeding, notify Buyer of any price changes (or changes in delivery terms) and receive Buyer’s written agreement thereto. No modification alteration amendment of this Purchase Order shall be effective unless in a written change order signed by Buyer and acknowledged by Seller. No charges for any changes not so authorized will be paid. Any overshipments shall be at Seller’s risk, and Buyer may delay payment therefor without loss of discount. All costs in returning overshipped items, if so desired by the Buyer, will be at Seller’s expense.
4. Assignment. Seller shall not assign its rights or delegate or subcontract its performance under this Purchase Order in whole or in part without the prior written consent of Buyer. Any attempted assignment, delegation or subletting without Buyer’s prior written consent shall be void and shall constitute a material breach of this Purchase Order by Seller.
5. Nonconforming Goods. All Goods furnished under this Purchase Order are subject to final inspection and approval at destination by Buyer. Any Goods not in compliance with any specifications or other requirements of this Purchase Order are subject to rejection by Buyer, and any or all of such Goods may be returned by Buyer at Seller’s expense. No goods returned as non-confirming shall be replaced unless authorized by Buyer. Any payments for Goods made prior to inspection shall not constitute an acceptance of said Goods or impair the remedies of Buyer hereunder and as provided by law.
6. Delivery and Default. Buyer may, at its election, by delivery to Seller of written notice of termination, cancel this Purchase Order or any part hereof (a) if Seller fails to deliver the Goods in accordance with any delivery or performance dates specified herein, of (b) if Seller fails to comply with any other provision of this Purchase Order and does not cure such failure within a period of ten (10) days or such longer period as Buyer may authorize in writing, or (c) upon the occurrence of any of the following: the voluntary or involuntary liquidation or dissolution of Seller , the sale or other disposition of all or substantially all of the assets of Seller, or the marshalling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of Seller, or other similar proceeding affecting Seller or any of its assets, or any action taken by any trustee or receiver or by any court in any such proceeding, or the disafirmance, rejection or postponement in any such proceeding of any of the Seller’s obligations pursuant to this order. In the event of any cancellation for the reasons described in (a) or (b) or (c) above. Buyer may purchase similar Goods and Seller shall be liable to Buyer for all loss or damage suffered or incurred by Buyer arising or resulting from such cancellation including without limitation, any additional cost or expense incurred in purchasing the Goods elsewhere. However, Seller shall not be so liable for failure to deliver the Goods in accordance with delivery or performance dates when such failure is due to causes beyond the control an without the fault or negligence of Seller, and Seller has notified Buyer within forty-eight (48) hours of the commencement of the occurrence that caused such failure. Time is of the essence of this Purchase Order.
7. Title and Risk of Loss. All Goods shall be shipped F.O.B. Buyer’s plant, Philadelphia, Pennsylvania (or such other destination as Buyer has expressly stated herein) unless specified to the contrary in the Purchase Order, and title and risk of loss to and with respect to the Goods shall remain with the Seller until the Goods are delivered to Buyer at Buyer’s plant, Philadelphia, Pennsylvania (or such other destination). All goods must be suitably packed, marked and shipped in accordance with the requirements of applicable common carriers in a manner to secure the lowest transportation cost. No charge shall be made by Seller for packing, boxing, drayage or storage unless otherwise stated herein.
8. Payment. Unless otherwise expressly stated herein, invoices dated prior to delivery of Goods will not be accepted. Buyer may withhold any payment due hereunder to such extent as may be necessary to protect Buyer from loss because of a reasonable doubt (a) that the Goods will met the requirements of this Purchase Order, of (b) that the Goods will be delivered on the date or dates specified in this Purchase Order. Upon the submission of proper invoices, Buyer shall be paid the prices stipulated herein for Goods delivered and accepted, or services rendered ad accepted, less deductions, if any. Unless otherwise specified, payments will be made on partial deliveries accepted by Buyer if Buyer, in its sole discretion, determines that the amount due is sufficient to warrant such partial payments, in connection with any discount offered, time will be computed from date of delivery at destination or from the date a correct invoice is received, if the latter date is later than the date of delivery.
9. Warranty. In addition to any other warranties, Seller warrants that the Goods shall be new unless otherwise specified, will conform to any specifications, drawings, samples or other descriptions furnished or specified by Buyer, will be merchantable and will be free from any defects in design, workmanship and materials for a period of one year from date of initial use. Any replacement or repair of materials or correction to workmanship shall be additionally warranted for a period of one year from the date the defect is remedied. Any replacement parts or other materials provided pursuant to this warranty shall be shipped F.O.B.. Buyer’s plant, Philadelphia, Pennsylvania (or other destination specified by Buyer). Seller acknowledges that, notwithstanding any drawings, specifications or other descriptions of the Goods set forth or referred to in this Purchase Order, Buyer is replying on Seller’s skill and judgment to furnish suitable Goods for the purposes described herein, and Seller warrants that the Goods will be fit and suitable for such purposes. Seller also expressly warrants title to all of the Goods is free and clear of any and all encumbrances of whatsoever nature and kind. All warranties shall survive any inspection, delivery, acceptance or payment.
10. Compliance with Laws:
(A) By accepting this Purchase Order, Seller acknowledges and warrants that all Goods furnished hereunder shall comply with all laws and regulations applicable in the Commonwealth of Pennsylvania and the United States of America . Seller acknowledges and warrants that their company, subcontractors, representatives, designees, et al. are in compliance with all U.S. Department of Labor applicable laws and regulations.
(B) Seller acknowledges that all or some portion of the Goods may constitute “chemical substances” or “mixtures,” “hazardous substances” and/or “hazardous wastes” under the U.S. Toxic Substances Control Act (TSCA),” the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”), the Resource Conservation & Recovery Act (“RCRA”), the Hazardous Materials Transportation Act (“HMTA”), the Pennsylvania Solid Waste Management Act (“PaSWMA”), or other similar federal, state, or local laws and regulations. By accepting this order Seller agrees and warrants that all goods including services furnished hereunder do and will comply with all applicable laws and regulations including, without limitation, TSCA, CERCLA, RCRA, HMTA, PaSWMA and their implementing regulations.
(C) Seller shall indemnify buyer and hold buyer harmless from and against all fines, response and remedial costs, and other damages or injuries assessed against or costs incurred by Buyer resulting from noncompliance by Seller with applicable laws and regulations.
11. Cancellation by Buyer:
(A) Cancellation due to causes beyond Buyer’s control. Buyer may cancel this order in whole or in part or defer acceptance of any Goods purchased hereunder in the event of a shutdown of its plant or a substantial reduction in the operation of said plant due to strikes, floods, riots, accidents, acts or failures to act of any governmental entity or of Seller, major equipment breakdowns, or any other causes whatsoever, whether similar or dissimilar to those set forth above, provided that any such cause was beyond the reasonable control of Buyer. In the event of such a cancellation or deferral, Buyer shall pay to Seller, as Seller’s sole and exclusive remedy, a reasonable cancellation or deferral charge, which charge shall in no event exceed the actual damages incurred by Seller as a direct result of the cancellation or deferral.
(B) Cancellation for convenience of Buyer. Buyer also reserves the right to cancel this order in whole or in part at any time, for its convenience, by written notice to Seller, immediately upon receipt of notice of such cancellation. Seller shall stop all performance hereunder except as otherwise directed by Buyer. If Seller is not in default of any of its obligations hereunder at the time of such termination, Buyer shall pay to Seller as its sole and exclusive remedy, an amount equal to those reasonable and documented costs incurred by Seller prior to termination. Provided, however, that the above amount plus any prior payments shall in no event exceed the purchase price of the Goods. All Goods completed or partially completed prior to termination shall become the property of Buyer, or at Buyer’s option, the salvage value of the Goods may be deducted from the amount due Seller by reason of the termination.
12. Patent Infringement. Seller hereby agrees to indemnify and hold harmless Buyer and its successors, assigns and customers and the users of its products against all costs whatsoever involved in any and all claims and suits for infringement or patent and patent rights arising from the purchase or use of the Goods. Buyer shall give Seller reasonable notice of any such claim or suit, and Seller agrees to undertake at its own expense the defense of any and all such claims or suits. In addition, upon notification by Buyer of an infringement claim, Seller shall do one of the following: (a) procure for Buyer the right to continue using the Goods on a permanent basis, without cost to Buyer and without any restrictions on the right of Buyer to use the Goods for the purpose for which they are intended, or (b) replace the same with non-infringing Goods satisfactory to Buyer, or (c) modify the goods in a manner satisfactory to Buyer so that they become noninfringing.
13. Nonwaiver of Remedies. The remedies of Buyer provided for herein shall be cumulative and shall be in addition to any other or further remedies provided in law or equity. No delay in the exercise of, or failure to exercise any right, remedy or power of Buyer shall be construed to be a waiver thereof, and such right, remedy or power may be exercised from time to time as often as may be deemed expedient by Buyer.
14. Indemnity. Seller shall indemnify and hold harmless Buyer and its agents, officers, directors, employees and assigns from and against any and all liabilities, claims, losses, damages, penalties, costs or expenses, (including, but not limited to court costs and reasonable attorneys’ fees) for damage to property of Buyer or others of whatsoever kind or nature or injury to persons (including, without limitation, death) arising from the delivery, use or operation of the Goods and due to the negligent or willful and wanton acts or omissions of Seller, its agents, independent contractors, subcontractors, officers or employees and whether or not caused or contributed to, in whole or in part, by the negligent acts or omissions of Buyer or any of its agents, officers, directors, employees and assigns or any other person or entity.
15. Inspection and Acceptance. If this Purchase Order involves manufacture of the Goods, Seller shall provide all shop inspection required and corresponding quality inspection reports to insure compliance with this order, and Buyer shall have the right at all reasonable times to inspect and test all work in process. Neither the presence nor the absence of an inspector or other personnel of Buyer in Seller’s facility shall relieve Seller of any requirements of this Purchase Order. Seller may request from Buyer, at the Seller’s discretion, to submit monthly (or more frequently if delivery requirements make it necessary) status reports and engineering production status reports if Buyer so specifies herein. Notwithstanding any prior inspection, the passage of title or any payments hereunder, all Goods furnished hereunder are subject to final inspection and acceptance by Buyer upon delivery.
16. Controlling Law and Severability. The terms and conditions of this Purchase Order shall be construed and interpreted under, and all respect rights and duties of the parties shall be governed by, the laws of the Commonwealth of Pennsylvania and United States of America Federal law to the extent the same may apply. If any provision or requirement of this Purchase Order is declared or found to be unenforceable, the balance of this Purchase Order shall be interpreted and enforced as if the unenforceable provision or requirement had never been a part hereof.
1. SALE AND PURCHASE TERMS
1.1 These Standard Terms and Conditions govern the sale by EHMKE MANUFACTURING COMPANY, INC (referred herein as “Seller”) and you (referred herein as “Buyer”) for the purchase of the products, services, machinery, parts, goods and other materials (herein referred to as the “Products”) identified on the Ehmke Sales Order.
1.2 Ehmke’s sale of the Product is conditioned upon your acceptance of all terms and conditions contained herein. YOU ARE HEREBY NOTIFIED OF EHMKE”S OBJECTION TO AND REJECTION OF ANY ADDITIONAL OR DIFFERENT TERMS IN YOUR PURCHASE ORDER, OTHER FORMS OR DOCUMENTS.
1.3 The effective date of the parties’ (Buyer & Seller) agreement (the “Effective Date”) shall be the date that the Seller receives from the Buyer’s written acceptance via Buyer’s Purchase Order or signed Quote Letter of the Sales Quote and/or Order and these Standard Terms and Conditions. On the Effective Date, the Sales Order and these Standard Terms and Conditions together shall be legally binding and have full force and effect and constitute the agreement of the parties (the “Agreement”).
1.4 Overs and Unders. Ehmke Manufacturing will strive to ship exact quantities on all orders. Production methods necessitate that we reserve the right to ship 5-10% over and under the quantity ordered. If exact quantity is desired, please note on order.
2. EFFECT OF THESE TERMS AND CONDITIONS
2.1 Upon the Effective Date, all former understandings, former proposals and writings are hereby deemed to be superseded by the Agreement and are hereby terminated and canceled and are merged into the Agreement. The parties acknowledge and agree that there have been and are no inducements to contract, no representations made for the purpose of inducing a contract, and no considerations other than those expressly set forth in the Agreement.
2.2 The Agreement expresses the complete and final understanding of the parties with respect to the subject matter thereof and shall not be altered, modified or changed in any way except by an instrument in writing signed by duly authorized representatives of the parties.
2.3 In case of conflict between the terms and conditions of the Agreement and the terms and conditions of any other document, including the Buyer’s purchase order, the terms and conditions of the Agreement shall govern.
3. PAYMENT TERMS; TAXES
3.1 All payments made to Ehmke Manufacturing Company, Inc. for the Products sold under the Agreement shall be made to the address as set forth in the Sales Invoice thirty (30) days of the date of the invoice. All payments shall be made without setoff or retention. Late payments shall be subject to interest on the unpaid balance at the highest rate permitted by law up to one and one-half percent (1.5%) per month.
3.2 Ehmke may add to any invoice and you shall pay an amount equal to any applicable taxes in connection with the Products sold, including state and local sales and use taxes..
4.1 PRODUCT WARRANTY: In the event that Ehmke is the original equipment manufacturer (O.E.M.) of the Product, Ehmke warrants that, for a period of one (1) year after delivery of the Product (hereinafter the “Warranty Period”) the Product shall be in good working order and shall conform in all material respects with the drawings, specifications and accepted industry standards furnished by the Buyer at time of purchase. If no drawings or specifications are provided by the Buyer at time of purchase, Ehmke will use the industry standard to interpret tolerances, assembly details, and fabrication techniques to manufacture the Product. If the Product is not in good working order or fails to conform in all material respects, within reason, with such specifications during the Warranty Period, you are entitled to the remedies described in Paragraph 4.3 below. Ehmke shall not be responsible for the intended use of our Product unless that use is fully disclosed by the Buyer in writing to Ehmke at time of purchase.
4.2 MANUFACTURER’S WARRANTY: In the event that Ehmke is not the manufacturer of the Product or sub-assembly of the Product, Ehmke hereby assigns to you all of Ehmke’s rights under the applicable manufacturer’s warranties with respect to the Product and such rights shall inure to your benefit as though you had purchased the Product directly from the manufacturer.
4.3 REMEDIES; PROCEDURES; LIMITATIONS: If, during the Warranty Period, you notify the Seller that the Product provided by the Seller is not in good working order or materially fails to conform to the drawing or specifications provided by the Buyer at time of purchase of the Product, the Seller shall, at its expense, rework, repair or replace the Product. Notice of any warranty claim by the Buyer shall be given to the Seller promptly and in writing at the address set forth in the Sales Invoice. The Seller shall not be obligated to provide, nor be liable for, any other or additional remedy and the Seller’s sole obligation shall be limited to making such repairs and replacements as the Seller deems necessary or proper to place the Product in good working order and in conformity with the drawings and specifications only. The Seller’s liability for any breach of its obligation to rework, repair or replace pursuant to this Paragraph 4.3 shall be limited to direct damages you actually incur and shall not exceed the Agreement price for the Product.
4.4 THE WARRANTY OF EHMKE MANUFACTURING COMPANY, INC. SET FORTH IN PARAGRAPH 4.1 IS EXCLUSIVE AND IS GIVEN BY EHMKE AND ACCEPTED BY YOU IN LIEU OF ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE (WHETHER KNOWN TO EHMKE OR NOT). ALL SUCH OTHER WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED BY EHMKE AND WAIVED BY YOU. Ehmke makes no warranties as to your ability to re-sell, use, obtain permits or licenses for any intended use of the Product..
4.5 EXCLUSIVE REMEDIES: The Seller’s sole liability to the Buyer for breach of the limited warranty contained in Paragraph 4.1 and the Buyer’s exclusive remedies for any such breach shall be the remedies set forth in Paragraph 4.3. The Seller shall have no other liability to the Buyer in connection with the Product, whether claimed in contract, equity, tort (including negligence, gross negligence or strict liability) or otherwise, for or resulting from any Products provided or any errors or omissions.
5. DISCLAIMER OF CONSEQUENTIAL DAMAGES
Notwithstanding anything to the contrary herein, the Seller disclaims and shall not be liable for any special, incidental, indirect, or consequential damages (or equivalents thereof no matter how claimed, computed or characterized), arising out of or in connection with the Agreement, its subject or its performance or breach of performance by the Seller, regardless of whether any such liability shall be based upon breach of contract, tort (including negligence, gross negligence and strict liability), violation of law or otherwise and whether the claim is brought at law or in equity. By way of example of the foregoing disclaimer, but without limiting in any manner its scope or application, the Seller shall not be liable for all or any part of the following losses, costs or expenses, no matter how claimed, computed, or characterized: lost profit or revenue, lost return on investment, cost of capital, lost operating time or production, lost reduced use or value of any facilities (including existing facilities) or any portion of any facilities, expense of replacement products or power, or increased costs of operations or maintenance. The foregoing disclaimer shall be effective without regard to the Seller’s performance or failure or delay of performance under any other term or condition of the Agreement, including, without limitation, those contained in Paragraph 4. This disclaimer shall be enforceable whether or not any limitation of remedies described herein is deemed to have failed in its essential purpose.
6. FORCE MAJEURE
Any loss, damage, or delay in, or failure of, performance by the Seller shall not constitute a default under the Agreement or give rise to any claim for damage if such loss, damage, delay, or failure is attributable in whole or in part to any cause or causes beyond the reasonable control of the Seller. These causes may include, without limitation, any act of God or the public enemy; compliance with any order, decree, or request of any governmental authority; act of declared or undeclared war; public disorder; rebellion; sabotage; fire; flood; explosion; accident; riot; strike; labor difficulty or other concerted act of workmen, whether direct or indirect; declaration of national emergency; mobilization of industry whereby material and labor required for manufacture of the Product are allocated or controlled; or any other cause not within the control of the Seller or which the Seller is unable to avoid by exercise of reasonable care. Upon any such occurrence, the estimated time for delivery of the Equipment shall be extended for a time which is reasonable in relation to the cause of such event.
7. DELIVERY & INSTALLATION
7.1 DELIVERY: The Seller agrees to cause the Product to be shipped per the Buyer’s direction (F.O.B: Origin) in accordance with general industry practice, and to cause the Product to be loaded on the carrier selected by the Buyer on the delivery date identified in the Sales Quote and/or Order. The Buyer shall make arrangements for the carrier and shipment of the Product, including freight, duty, taxes and export/import fees. The Seller (F.O.B. Destination) will cause the Product to be shipped to Buyer in accordance with general industry practice when so stated on the Sales Quote and/or Order at time of purchase.
7.2 INSTALLATION: In the case of Product supplied by the Seller that requires installation, the Buyer, prior to the agreed-upon delivery of the Product, shall be responsible for preparing the site for installation of the Product. The Seller may provide installation services, including supervision, unpacking, placement and set up of the Product at the Buyer’s expense.
8. SECURITY INTEREST
The Seller reserves and the Buyer hereby grants a purchase money security interest in the Product, all additions, accessions and replacements thereto, products and proceeds to secure payment by you. The security interest is retained by the Seller until you have paid in full for the Product pursuant to Paragraph 3. The Seller may file, at the Buyer’s expense, financing statements pursuant to the Uniform Commercial Code to perfect or evidence the Seller’s security interest.
9. RISK OF LOSS
The Seller shall bear risk of loss until the Product shall come to rest aboard the carrier at the shipping point defined in each Sales Quote and/or Order. Thereafter the Buyer shall bear risk of loss.
Waiver by either party of any breach by the other party of any of the terms or provisions of the Agreement shall not be deemed to be a waiver of breach on any other occasion of the same terms or provisions, or a waiver of breach of any other term or provision hereof.
11. CONFIDENTIAL AND PROPRIETARY INFORMATION; OWNERSHIP
The Buyer agrees, as does the Seller, to adhere to normal confidentiality and secrecy standards and practices with respect to all information received from each other except information which (a) at the time of its disclosure is in the public domain, (b) after disclosure becomes part of the public domain by publication or otherwise through no fault of the party bound to keep such information confidential, (c) which either the Buyer or Seller can show was in its possession at the time of disclosure or received by such party after disclosure from the third party who did not require the Buyer or Seller to hold it in confidence and did not acquire it from the other party under an obligation of secrecy. Upon termination, each party will return all written information and software received under the Agreement from the other. The parties agree to maintain the confidentiality of all such information and take all appropriate measures to do so such as, but not limited to, informing all persons having access to such information of its confidential nature.
12. INDEPENDENT CONTRACTOR STATUS
Nothing in the Agreement is intended to create any association, partnership, joint venture or other relationship between the parties. The Seller shall not be responsible for any intended use of the Product unless disclosed in writing at time of purchase.
Neither the Agreement nor any interest herein shall be assigned or transferred by either party thereto without prior consent of the other party. Subject to the foregoing, the Agreement shall inure to the benefit of and be binding upon the successors, legal representatives, and permitted assigns of the parties thereto.
14. GOVERNING LAW
The Agreement, its administration and performance, and all the rights, obligations, liabilities and responsibilities of the parties thereto, shall be governed by and interpreted in accordance with the laws of the Commonwealth of Pennsylvania, without regard to Pennsylvania conflict of laws principles.
15. HEADINGS, SEVERABILITY, NO THIRD PARTY BENEFICIARIES
15.1 Any headings preceding the text of any articles, paragraphs or parts of the Agreement are inserted solely for convenience of reference and are not to be considered a part of the Agreement nor shall they affect in any manner the meaning, interpretation or effect of the Agreement.
15.2 The Agreement shall be severable such that the invalidity or unenforceability of any portion or provision of the Agreement shall in no way affect the validity or enforceability of any other portion or provision. The balance of the Agreement shall be construed and enforced as if it did not contain such invalid or unenforceable portion or provision.
15.3 The Seller does not intend to give anyone other than the Buyer the benefit of, and no person or entity shall be a third-party beneficiary of these Standard Terms and Conditions.
The provisions of Paragraphs 3, 4, 5, 11, 15 and this Paragraph 16 shall survive indefinitely the termination of the Agreement for any reason.