Deist™ Purchase Order Terms and Conditions

OS-100v11 | January 17, 2018 rev

1. Contract Formation

Any purchase order issued by Deist Industries, Inc., d/b/a Bucks Fabricating and Switch-N-Go (“Deist”) is subject to, and governed by, these Purchase Order Terms and Conditions, which Purchase Order Terms and Conditions are incorporated by reference in any purchase order issued by Deist, as if fully put forth in such purchase order. A purchase order is an offer to purchase goods and/or services by Deist from the party (the “Seller”) to which the purchase order is issued. A purchase order does not constitute an acceptance by Deist of any offer, any quotation, or any proposal from Seller. Deist shall not be bound by a purchase order until Seller executes and returns to Deist the acknowledgment copy of the purchase order which shall constitute acceptance of the offer set forth in the purchase order. Seller shall be bound by the purchase order when: (1) Seller executes and returns the acknowledgment copy of the purchase order; (2) Seller otherwise communicates to Deist in writing its acceptance of the purchase order; or (3) Seller delivers to Deist any of the goods, or renders to Deist any of the services, identified in the purchase order. Deist reserves the right to revoke the purchase order at any time prior to its acceptance by Seller as provided herein. Acceptance by Seller of the purchase order is expressly limited to the terms and conditions stated in the purchase order (including, without limitation, these Purchase Order Terms and Conditions). Any additional or different terms proposed by the Seller are rejected unless expressly assented to in writing by Deist. Deist expressly objects to any terms contained in any of Seller’s documents which are different from, or additional to, the terms of the purchase order (including, without limitation, these Purchase Order Terms and Conditions). Deist’s execution of any document issued by Seller shall constitute only an acknowledgment of the receipt thereof, and shall not be construed as an acceptance of any of the terms therein. No contract shall exist between Deist and Seller except as provided in this Section 1.

2. Documents Constituting the Contract; Entire Agreement

The parties agree that, upon acceptance by Seller as provided in Section 1, above, the purchase order issued by Deist to Seller, including any terms and conditions of the purchase order, together with any documents attached to the purchase order and these Purchase Order Terms and Conditions, constitute the complete and final contract (the “Contract”) between Deist and Seller. The Contract supersedes all prior understandings, agreements and negotiations between Deist and Seller with respect to the subject matter of the Contract.

3. Amendments

The Contract may not be amended or otherwise modified except by a writing which is executed by Deist. Any acknowledgment form or other document of Seller containing terms and conditions shall not have the effect of modifying the terms and conditions of the Contract, even if signed by Deist, and such documents are hereby specifically rejected. Deist shall consider a request by Seller for an amendment only if such request is in writing and is directed to specific paragraphs in the Contract. No such amendment shall be binding upon Deist unless specifically accepted in writing by Deist.

4. Change Order; Adjustments

Deist reserves the right to make or request, at any time, written change orders with respect to any one or more of the following:   (1) specifications, drawings, and data incorporated into the Contract; (2) methods of shipment or packing; (3) place of delivery; (4) time of delivery; (5) manner of delivery; (6) quantities; and (7) any other aspect of the Contract. If any such change order causes an increase or decrease in the cost of, or the time required for, performance of the Contract, an equitable adjustment shall be made in the contract price or delivery schedule, or both. Any claim by Seller for an adjustment either under this Section 4 or on any other basis must be: (1) submitted in writing to Deist by Seller within fifteen (15) calendar days of the issuance of the change order or the occurrence of the event upon which the claim for an adjustment is based; and (2) approved by Deist in writing. Seller shall not proceed without having received Deist’s written approval. If Seller fails to submit a written claim for an adjustment within such fifteen (15) day period and/or if Seller proceeds without having first obtained Deist’s written approval for an adjustment, Seller shall be deemed to have waived any claim for an adjustment and Deist shall not be obligated to honor any claim for an adjustment relating to the change order or other circumstances in question.

5. Documents Constituting the Contract; Entire Agreement

5.1 Generally | Prices stated in the Contract shall apply to all deliveries to be made or services to be rendered hereunder. Deist shall have no obligation to pay invoices for goods or services at any increased price unless such increased price shall have been consented to in writing by Deist. The price set forth in the Contract is the entire price for the goods and/or services in question. Unless specifically otherwise set forth in the Contract, such price includes all shipping, postage, handling, packaging, containers, drayage and any other materials or services provided in connection with the performance of the Contract by Seller. Except as is otherwise provided in the Contract, Deist shall not be obligated to pay any fees or charges of any nature whatsoever which are in addition to the purchase price.

5.2 Taxes | Except as is expressly otherwise provided in the Contract, the purchase price includes all applicable federal, state and local taxes, including (without limitation) sales taxes. Seller shall be solely responsible for the payment of any such taxes and the application for any exemptions with respect thereto.

5.3 Discount for Prompt Payment | If a price discount is applicable for prompt payment, the discount period shall begin on the later of: (1) the date of Deist’s receipt of the Seller’s invoice; or (2) the date of Deist’s receipt of the goods and/or services which are the subject of the Contract.

6. Payment

Unless otherwise provided in the Contract, payment shall not be due until thirty (30) days  following: (1) in the case of goods, delivery and acceptance of the goods; and (2) in the case of services, complete performance of the services

7. Delivery

7.1 Delivery Terms | Time of delivery and time of performance by the Seller is of the Delivery terms specified in the Contract shall be construed in accordance with Incoterms 2010. Unless otherwise specified in the Contract, delivery of all goods shall be Delivered Duty Paid (if applicable) Deist’s facility at 3547 Perry Highway, Hadley, PA 16103 (Incoterms 2010).

7.2 Packaging | All goods to be delivered under the Contract shall be packaged by Seller in a manner which is sufficient to assure that the goods are delivered to Deist in good condition and without any damage, and shall take into account the mode of shipment, including (but not limited to) shipments involving multiple carriers or other forms of Without limiting the foregoing, Seller shall comply with any specific packaging instructions set forth in the Contract.

7.3 Remedies of Deist | If the delivery of the goods is not made at the times and in the manner specified in the Contract, or the rendering of services is not completed at the times specified in the Contract, Deist reserves the right, without liability, and in addition to its other rights and remedies, to take either or both of the following actions: (1) direct expedited routings of the goods (the difference in cost between the expedited routing and the purchase order routing shall be paid by Seller); and/or (2) terminate the Contract as provided in Section 15, below. If Deist terminates the Contract, Deist may, at its option, purchase substitute goods or services elsewhere and charge the Seller with any losses and expenses incurred by Deist in connection therewith. Deist will have no liability for payment for goods delivered to Deist which are in excess of quantities specified in the Contract and the applicable delivery schedules. Such goods shall be subject to rejection and return at Seller’s expense, including (but not limited to) transportation charges both ways. The foregoing remedies are in addition to, and not in lieu of or in limitation of, any other rights and/or remedies Deist may have under applicable law or under the terms of the Contract.

8. Inspection of Acceptance of Goods

8.1 Inspection Procedures

8.1.1 Generally | Except as is otherwise provided in the Contract, final inspection and acceptance of goods shall be made as promptly as practical after Notwithstanding the foregoing, the failure of Deist to promptly inspect and accept or reject goods, or to detect defects by inspection, shall not: (1) relieve Seller of any liability for the failure of the goods to conform to the requirements of the Contract; and (2) result in the imposition of any liability whatsoever upon Deist.

8.1.2 Inspection During Manufacturing | To the extent practicable, all materials or products (including, without limitation, raw materials, components, intermediate assemblies and end products), shall be made available by Seller for inspection by Deist at all times and places prior to final acceptance by Deist. Such inspection may occur during the period of manufacturing or assembly. Any such inspections shall be conducted in a reasonable manner with reasonable notice to Seller, and in such a manner as to not unduly delay or interfere with Seller’s performance of the Contract.

8.1.3 Inspections on Premises of Seller | If any inspection or test as specified in the Contract is made on the premises of Seller or its supplier, Seller without additional charge shall provide all reasonable facilities and assistance for the safety and convenience of the inspectors.

8.1.4 Inspection System | Seller shall maintain an inspection and process control system acceptable to Deist covering the goods to be delivered by Seller under the Contract. Records of all inspections and/or test work by Seller shall be kept complete and available to Deist during the performance of the Contract and for a period of four (4) years following delivery of the goods.

8.1.5 Rights of Deist’s Customers | Customers who purchase from Deist equipment into which the goods delivered or to be delivered by Seller under the Contract have been or will be incorporated, as well as any other end user of such equipment, shall have the right to exercise the inspection rights granted to Deist under this Section 8.1, as and to the extent authorized by Deist to do so, in Deist’s sole discretion. Such customers and end users may include, but are not limited to, the United States Government and contractors to the United States Government. The inspection rights described in this Section 8.1.5 are in addition to, and not in lieu of, any inspection rights such customers and end users may have under law.

8.2 Remedies | In the event that any goods fail to meet the warranties set forth in Section 10 or are defective in design, materials or workmanship, or otherwise not in conformity with the requirements of the Contract, Deist shall have the right to: (1) reject the goods and, in accordance with Section 15, below, terminate the Contract for default as to the rejected goods; (2) reject the goods and require correction by the Seller; (3) reject the goods and return the goods to Seller at Seller’s expense and receive a refund of the purchase price; or (4) accept the goods and deduct from the amount due Seller the cost of remedying the defects (provided Seller agrees to such cost prior to deduction); and/or (5) accept the goods and deduct from the amount due the Seller the greater of (i) any damages incurred by Deist as a result of the defect or non-conformity in question, or (ii) the difference in value of the goods as delivered and the purchase price under the Contract. If Deist elects to reject the goods and require their correction, Seller shall at no expense to Deist promptly correct or replace them with goods conforming to the requirements of the Contract in accordance with Deist’s instructions. If Seller fails to do so promptly Deist may either: (1) replace or correct such goods and charge Seller the costs incurred to do so; or (2) terminate the Contract for default in accordance with Section 15, below.

8.3 Acceptance Not a Waiver | Acceptance of all or part of the goods shall not be deemed to be a waiver of Deist’s right to revoke acceptance, to reject the goods, and to return all or any portion of the goods because of a failure of the goods to conform to the requirements of the Contract (including, but not limited to, any breach of warranty).

8.4 Handling and Shipping Charges with Respect to Rejected Goods | Seller shall be solely responsible for the cost of returning any rejected goods to the Seller, including (but not limited to) handling and transportation charges.

8.5 Effect of Force Majuere on Acceptance | Deist shall not be liable for failure to accept any part of the goods, if such failure is the result of any cause beyond the control of  Such causes include (but are not limited to): (1) fires; (2) floods; (3) Acts of God; (4) strikes; (5) differences with employees; (6) casualties; (7) delays in transportation; (8) shortages of transport; (9) inability to obtain necessary materials or machinery; and/or (10) total or partial shutdown of Deist’s plant for any cause.

8.6 Payment Not Accepted | Payment for any goods shall not constitute acceptance of the goods.

8.7 Remedies Not Exclusive | The remedies of Deist which are set forth in this Section 8 are in addition to, and not in lieu of or in limitation of, any other rights and/or remedies which Deist may have under applicable law or under the terms of the Contract.

9. Title and Risk of Loss

Unless otherwise provided in the Contract, title and risk of loss with respect to goods to be furnished pursuant to this Contract shall pass from Seller to Deist when risk of loss passes to Deist from Seller under the delivery terms (Incoterms 2010) governing the Contract.

10. Seller’s Warranties

10.1 Generally | Seller warrants that it shall have good and marketable title to all goods furnished pursuant to the Contract and that such goods shall be delivered to Deist free and clear from all liens and encumbrances. Seller further warrants that all goods furnished pursuant to the Contract shall be free from defects in material and workmanship and shall be in conformity with the requirements of the Contract. Seller further warrants that such goods shall be merchantable and fit for the purpose for which they are purchased and shall be free from defects in design. Deist’s approval of Seller’s specifications, drawings, bills of material and/or design shall not be construed to relieve Seller of the foregoing warranties. With respect to services rendered by Seller under the Contract, Seller warrants that: (1) such services shall be rendered in a good and workmanlike manner; (2) such services shall be rendered in conformity with all applicable professional standards; and (3) such services shall be rendered in conformity with the requirements of the Contract.

10.2 Survival; Remedies | Seller agrees that the warranties set forth in this Section 10 shall survive acceptance of the goods or the services rendered. Said warranties shall be in addition to, and not in limitation or replacement of: (1) any warranties of additional scope given by Seller to Deist, which warranties of additional scope are incorporated by reference in the Contract; and (2) any warranties which may exist as a matter of law. None of the warranties set forth in this Section 10 and no other implied or express warranties shall be deemed disclaimed, limited or excluded unless evidenced by an amendment to the Contract executed by Deist in accordance with the provisions of Section 3, above. In the event of a breach of any of the foregoing warranties, Deist shall have such remedies as are provided under the Contract and as are provided by law. Any remedies specified in the Contract for a breach of warranty shall be in addition to, and shall not be in lieu of or otherwise limit, any remedy which Deist may have under applicable law, including (without limitation) claims for damages.

11. Confidentiality of Information

11.1 Information Disclosed by Deist | All information disclosed by Deist to Seller in connection with the negotiation, execution and performance of the Contract (the “Confidential Information”) shall be considered confidential to Confidential Information includes, but is not limited to: (1) technical information (including, but not limited to, designs, blueprints, specifications and engineering data); and (2) business information relating to Deist (including, but not limited to, the existence, terms and conditions of the Contract, the intended use of the goods and services covered by the Contract, the business plans of Deist, information relating to customers of Deist, and so forth). Seller shall: (1) hold all Confidential Information in strict confidence; (2) take all necessary and appropriate precautions to maintain the confidentiality of the Confidential Information; and (3) use the Confidential Information solely for the purpose of fulfilling Seller’s obligations under the Contract. Seller shall require its employees, agents, representatives and subcontractors to maintain the confidentiality of the Confidential Information. Seller shall be liable to Deist for any breach of such obligations by Seller’s employees, agents, representatives and subcontractors. The existence of, and the terms of, the Contract shall be considered Confidential Information of Deist.

11.2 Information Disclosed by Seller | Unless otherwise agreed by the Seller and Deist in writing, any information which the Seller has disclosed or may hereafter disclose to Deist in connection with the negotiation, execution and performance of the Contract shall not be deemed to be confidential or proprietary information to Seller, and Deist may use such information without restriction.

12. Indemnification

Seller agrees to defend, indemnify and save harmless Deist, its officers, agents, successors, assigns and customers against all claims, demands, damages, costs, expenses, attorneys’ fees or liability of any kind which arise from, or are related in any way to:the actual or alleged infringement of any trade name, trademark, copyright or patent, or the misappropriation of any trade secrets or confidential information arising in connection with the possession, sale or use of the goods delivered, or services rendered, to Deist under the Contract;injuries or damages to any person or property arising from the performance of services for Deist, if the Contract calls for the performance of such services; (3) the performance of the Contract by Seller or any agent or subcontractor of Seller; and/or (4) the claims of third parties relating to or arising in connection with services performed and/or the goods delivered under the Contract. Seller further agrees, upon receipt of notification from Deist, to promptly assume full responsibility for the defense of any and all such claims, suits, actions or proceedings for which Seller is obligated to provide indemnification under this Section 12.

13. Insurance

If the Contract covers the performance of services for Deist, Seller agrees to maintain such insurance coverages as: (1) are specified in the Contract; (2) required by law; and (3) would normally and customarily be maintained by a prudent seller following normal industry practices, taking into account the nature and location of the services to be performed (including, without limitation, services to be performed on Deist’s premises and/or the premises of Deist’s customer). Upon the request of Deist, Seller shall: (1) cause Deist to be named as an additional insured under such insurance policies; and (2) furnish certificates of insurance or such other evidence of such coverages to Deist in such form as is satisfactory to Deist. Compliance by Seller with the foregoing insurance requirements shall not limit or otherwise affect Seller’s indemnification obligations under Section 12, above.

14. Termination by Deist for Convenience

Deist may, for the convenience of Deist and at Deist’s sole option and discretion, terminate the Contract, in whole or in part, by written notice of Upon receipt of such notice, Seller shall terminate, pursuant to the notice, the work started under the Contract. Seller will promptly advise Deist of: (1) the quantities of work in process and material on hand or purchased specifically for the Contract prior to termination; and (2) the most favorable disposition that Seller can make thereof. Seller shall comply with Deist’s instructions regarding disposition of such work and material. Unless otherwise directed by Deist, finished work shall be delivered to Deist by Seller in accordance with the terms of the Contract. Within thirty (30) days after receipt of the notice of termination, Seller shall submit its claims, if any, relating to the termination. Deist shall have the right to verify such claims at any reasonable time by inspecting and auditing the records, facilities, work or materials of Seller relating to the Contract. In the event of a timely claim, Deist shall pay Seller: (1) the purchase order price, pro rata, for finished work; and (2) the cost to Seller (excluding profit, overhead or losses) of work in process and raw material, based on any audit Deist may conduct and generally accepted accounting principles. Such amount shall be reduced by the following: (1) the reasonable value or cost (whichever is higher) of any items used or sold by Seller without Deist’s consent; (2) the value of any defective, damaged or destroyed work or material; and (3) the amount received, or which may reasonably be expected to be received, by Seller for usable and/or saleable raw materials or work in process which can be used or disposed of by Seller in a commercially reasonable manner in mitigation of its claim. Deist shall make no payment for finished work, work in process or raw material fabricated or procured by Seller in excess of Deist’s written releases. Payment as provided under this Section 14 shall constitute Deist’s only liability in the event the Contract is terminated or deemed to be terminated under this Section 14. Seller’s acceptance of such payment shall constitute acknowledgment that Deist has fully discharged such liability. In no event shall Deist be responsible for any lost profits, loss of use of capital, or any other form of direct, indirect, incidental or consequential damages with respect to any termination or deemed termination of the Contract under this Section 14. Except as otherwise provided in Section 15, below, the provisions of this Section 14 shall not apply to any termination by Deist for default by Seller or for any other cause allowed by law or under the Contract.

15. Termination by Default

Deist may terminate for default all or any part of the Contract if Seller: (1) does not make timely delivery of conforming goods and/or services as specified in the Contract; (2) materially breaches any of the terms and conditions of the Contract; or (3) so fails to make timely progress as to make it unlikely that Seller will be able to perform under the In addition, Deist may terminate the Contract if any of the following events occur: (1) insolvency  of  Seller;  (2) appointment  of  a  receiver  or  trustee  for  Seller;  or execution by Seller of an assignment for the benefit of The exercise by Deist of the right of termination hereunder shall not result in any liability to Deist nor have the effect of waiving any remedies or damages to which Deist might otherwise be entitled. The remedies set forth in this Section 15 are in addition to, and not in lieu of or in limitation of, any other rights and/or remedies Deist may have under applicable law or under the terms of the Contract. In the event that a court of competent jurisdiction should determine that Deist wrongfully terminated the Contract for default by the Seller, such termination shall be deemed to be a termination for convenience by Deist under Section 14, above, and the liability of Deist therefor shall be limited as provided in Section 14, above.

 

16. Complaince With Applicable Laws

Seller agrees that, in the performance of the Contract, it will comply with all applicable laws, regulations and orders of the United States or of any state or political subdivision. As and to the extent required by applicable law, the requirements of Deist’s customer, and/or the requirements of any end user of Deist’s products into which Seller’s goods and/or services are incorporated, Seller shall, upon written request by Deist, execute and provide to Deist appropriate certifications certifying Seller’s compliance with this Section 16 and any specific statute, regulation, executive order or other governmental enactment which is applicable to Seller’s performance of the Contract.

17. No Waiver

1. No waiver of any right of Deist under the Contract or under law shall be effective unless executed in writing by Deist’s failure or delay in enforcing strict compliance with any provision of the Contract shall not be construed as a waiver of such provision or right. The obligations of Seller with respect to any such provision or right shall continue in full force and effect, and may subsequently be enforced by Deist at any time.

18. Personal Performance By Seller

Deist has entered into the Contract with Seller in reliance upon Seller’s personal performance, and Seller agrees not to assign the Contract or to delegate the performance of its duties without the prior written consent of Deist. Any such assignment or delegation which is attempted without the prior written consent of Deist shall be void, and shall constitute a material breach of the Seller’s obligations under the Contract.

19. Deist’s Property

Unless otherwise agreed by Deist and the Seller in writing, the following items (collectively, the “Deist’s Property”) shall be, and shall remain, the personal property of Deist: (1) all tools, equipment, patterns, fixtures, drawings or materials of every description furnished to Seller by Deist or specifically paid for by Deist, and any replacements thereof; (2) all copyrights in all plans and/or drawings furnished to Seller by Deist; and (3) all trade secrets, intellectual property and other proprietary rights encompassed within the “Confidential Information,” as defined in Section 11, above.

20. Independent Contractors

Deist and Seller are strictly independent contractors with respect to one another, and nothing in the Contract shall be construed as rendering a party the partner, joint venturer, agent and/or employee of the other party

21. Governing Law; Forum

The Contract and the relationship between the parties shall be governed and construed in accordance with the laws of the Commonwealth of Pennsylvania, excluding any choice of law provisions which would direct the application of the laws of a different jurisdiction. Any litigation arising from or relating to the Contract, or the breach thereof, shall be brought and decided exclusively in the state or federal courts whose districts encompass Erie County, Pennsylvania. Deist and Seller hereby agree to submit to the personal jurisdiction of such courts for these matters. The United Nations Convention on the International Sale of Goods, the 1974 Convention on the Limitation Period in the International Sale of Goods and the Protocol amending the 1974 Convention shall not apply to the Contract.

22. Recovery of Expenses

Deist shall have the right to recover from the Seller all costs and expenses (including, but not limited to, attorneys’ fees) incurred by Deist in enforcing the provisions of the Contract.

22.1 Interpretation of Contract, Generally | For purposes of the Contract, the singular shall include the plural and the plural the singular, as the context may require. The Contract shall be construed as having been drafted by both parties and the Contract shall not be construed against one party or the other on the grounds that such party was the draftsman of the Contract.

22.2 Order of Precedence | The documents constituting the Contract are intended to be construed as a whole and in a manner which gives effect to each provision of the Contract. In the event that there is an express and irreconcilable conflict between provisions of different documents compromising the Contract, such documents shall be construed in the following  order  of  precedence:    (1) provisions  expressly  set  forth  on  the  purchase  order; (2) provisions of documents such as product descriptions, specifications, performance requirements and similar documents which are specific to the subject matter of the Contract and which are attached to the purchase order, but excluding any Seller terms and conditions of sale which may be included or referenced in such documents; and (3) these Purchase Order Terms and Conditions.

23. Survival

Those provisions of the Contract which, by their express terms or by their operation, are intended to survive termination of the Contract, shall survive termination of the Contract. Such provisions include, but are not limited to, this Section 24 and Sections 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, 19, 20, 21, 22 and 23.

 

OS-100v11 | January 17, 2018 rev