Terms and Conditions of Purchase
WinWholesale Inc. and each of its locally-owned and operated companies are hereinafter collectively referred to in these Terms and Conditions of Purchase (“Terms”) as “WinWholesale” and the entity or person from which WinWholesale is purchasing goods, products and/or services (collectively referred to as “Goods”) is referred to as “Seller.” These Terms shall be used in connection with the applicable (and/or attached) purchase order (the “Purchase Order”) for the purchase of Goods by WinWholesale from Seller. When these Terms are part of a written contract between Seller and WinWholesale for the purchase of Goods, as is the case for the Purchase Order, they shall be incorporated by reference and considered in addition to (and not in lieu of) the provisions of such written contract, and in case of any inconsistency, the provisions of such written contract shall control.
- Acceptance. The Purchase Order constitutes WinWholesale’s offer to Seller upon these Terms and shall become a binding contract when it is accepted either by Seller’s acknowledgment or performance. The Purchase Order expressly limits acceptance to these Terms. Any additional or different terms or conditions proposed by Seller are objected to and hereby rejected, including without limitation, Seller’s quotation or acknowledgment forms. Any reference in the Purchase Order to Seller’s quotation or proposal does not imply acceptance of any terms or conditions in that quotation or proposal. Upon acceptance, the Purchase Order shall constitute the entire agreement between WinWholesale and Seller. Seller will be deemed to have assented to these Terms if all or any part of the Goods covered by the Purchase Order are shipped or an invoice is presented in connection with such Goods. Except as hereinafter provided, the Purchase Order may not be altered or modified except in writing, duly executed by an appropriate representative of each party.
- Changes. The quantities, prices, terms, conditions or other pertinent specifications of the Purchase Order shall not be changed except by WinWholesale’s written authorization. Where Goods to be furnished are to be specifically manufactured in accordance with drawings and/or specifications, WinWholesale may, at any time, by written order, make changes in (i) drawings, designs or specifications, (ii) method of shipment or packing, (iii) place of delivery, or (iv) postpone the delivery schedule. If any such change causes a material increase or decrease in the cost of, or time required for performance of the work under the Purchase Order, an equitable adjustment shall be made in the contract price or delivery schedule or both. Seller shall submit its claim within thirty (30) days from the date of receipt of notification of change unless said period is extended in writing by WinWholesale. Where Seller’s claim for adjustment includes the cost of property which has become obsolete or excessive as the result of any change, and where Seller’s claim is accepted by WinWholesale, WinWholesale shall have the right to prescribe the disposition of such property.
- Price. If no price is set forth on the front of the Purchase Order, Goods shall be billed at the price last quoted or at prevailing market price, whichever is lower, and in any event, Goods ordered hereunder may not be billed at a higher price than last quoted or charged without WinWholesale’s specific written authorization. If WinWholesale can purchase Goods of comparable quality from another source at a lower cost than the delivered cost of Goods then in effect hereunder, and WinWholesale gives Seller written notice thereof, WinWholesale may purchase such Goods, unless within fifteen (15) days of receipt by Seller of said notice, Seller shall meet such lower delivered cost for any equal quantity of Goods thereafter sold hereunder. Any Goods so purchased from another source shall be deducted from any obligation that WinWholesale may have hereunder, but the Purchase Order shall otherwise remain unaffected.
If Seller sells Goods of like kind and quantity during the term of the Purchase Order to any other customers, at a price which is lower for the same or a lesser quantity than the purchase price then in effect hereunder, the purchase price hereunder shall be reduced to such lower price for all shipments made while such lower price remains in effect for other customers. Except as otherwise specified in the Purchase Order, the price includes all transportation charges and all charges for Seller’s packing, crating and storage.
- Taxes. All taxes, duties and fees arising out of the transactions contemplated by the Purchase Order shall be borne by Seller except as otherwise specified by the parties in writing.
- Billing. Invoices must be furnished by Seller in duplicate and mailed to the attention of the applicable WinWholesale “Accounts Payable Department” as designated by the applicable WinWholesale purchasing party. Any charges properly prepaid by Seller on behalf of WinWholesale pursuant to the Purchase Order for which reimbursement is sought must be separately stated on the invoice and supported by appropriate receipts furnished to WinWholesale. Alternatively, in WinWholesale’s sole discretion, Seller agrees to submit all invoices to WinWholesale via electronic means and Seller agrees to purchase all hardware, software and access mechanisms necessary for Seller to submit such invoices electronically.
- Payment. Payments shall be made as stated on the front of the Purchase Order less customary cash discount, unless WinWholesale agrees otherwise in writing. WinWholesale reserves the right to make payment following receipt and inspection of Goods and required documentation as provided in the Purchase Order, without waiving its right to the cash discount. When invoices subject to discount are not mailed on the date of shipment, discount periods shall begin on the date the invoices are received in WinWholesale’s office. WinWholesale’s count of Goods delivered will be accepted as final on all shipments not accompanied by a packing list. Payment of amounts due hereunder shall be subject to deduction of any amounts representing valid claims against Seller arising from the Purchase Order or any other transaction between WinWholesale and Seller.
- Packing and Marking. Goods shall be packed to ensure safe and proper carriage of Goods to WinWholesale in an undamaged condition and Seller shall be responsible for any loss or damage to such Goods that may arise from inadequate or inappropriate packing. Goods shall also be marked and packaged by Seller in accordance with law, regulation, WinWholesale’s instructions and packaging specifications and the requirements of the consolidated freight classification, exceptions to the classification or any applicable tariffs in effect on the date of shipment. A packing list shall be included with each shipment.
- Title and Risk of Loss; Shipment. Title and risk of loss to Goods shall remain in Seller until Goods in a completed state have been delivered to and accepted by WinWholesale or an agent or consignee duly designated by WinWholesale at the delivery point specified by WinWholesale. Goods to be shipped shall be shipped F.O.B. destination, unless otherwise specified by WinWholesale.
- Specifications. If designs, drawings, blueprints, instructions or specifications (collectively “Specifications”) are furnished by WinWholesale, the Purchase Order shall be based upon such Specifications, and approval of samples by WinWholesale shall not relieve Seller from strict and full compliance with such Specifications. Goods not conforming to such Specifications may be rejected at any time.
- Payments Not Constituting Acceptance. Payment for any Goods on the Purchase Order shall not constitute approval or acceptance of such Goods by WinWholesale, and WinWholesale’s right of inspection shall survive payment. Seller shall repay WinWholesale the purchase price of any Goods found to be defective, not to conform to Specifications or samples or not shipped in accordance with WinWholesale’s delivery schedule and which are returned to Seller. Rejected Goods shall be returned at the expense of Seller upon rejection and Seller shall bear all risk of loss as to rejected Goods. WinWholesale may elect to retain rejected Goods and remedy any defects or nonconformity to the Specifications or samples, and the cost of effecting such remedy shall be offset against any amounts due to Seller from WinWholesale.
- Contingencies/Force Majeure. Neither party shall be held responsible for any delay or failure in performance hereunder caused by acts of God, war, riots, fire, explosion, flood, strike, lock-out, injunction, governmental laws or regulations, or any other cause beyond the control of such party, preventing the manufacture, shipment, acceptance, or use of Goods; provided that the party who is affected or threatened by such event immediately notifies an authorized individual of the other party as to the nature and estimated effect upon its performance hereunder. Seller shall use its best efforts to remove any force majeure event to the extent possible.
At WinWholesale’s option, the period specified for delivery of Goods hereunder and any warranties shall be extended by the period of delay occasioned by any such cause, and deliveries omitted shall be made during such extension, or the total quantity shall be reduced by the deliveries affected by the suspension of such performance, but the balance of the Purchase Order shall otherwise remain unaffected. WinWholesale shall have the option to terminate the Purchase Order without liability to Seller in the event of a suspension of performance hereunder. In the event of allocation by Seller as a result of the foregoing, Seller shall allocate its total available supply of production and Goods to WinWholesale in order to fulfill WinWholesale’s Purchase Order(s) prior to fulfilling any other customers’ orders.
- Termination. Notwithstanding anything in these Terms to the contrary, WinWholesale shall have the right for any reason or no reason and at its convenience to terminate the Purchase Order in whole or in part at any time by written notice effective upon receipt by Seller. Upon receipt of notice of termination, Seller shall immediately discontinue performance and shall comply with WinWholesale’s instructions concerning disposition of completed and partially completed Goods, work in progress and materials acquired pursuant to the Purchase Order. In the event of such termination, Seller shall be paid an amount in settlement to be mutually agreed upon by the parties which shall cover Seller’s reasonable costs of performance incurred prior to termination in connection with the Goods for which the Purchase Order is terminated plus a reasonable profit based upon such costs; provided, however, such payment shall not exceed the price specified in the Purchase Order for such Goods. In no event shall Seller be entitled to recover incidental or consequential damages in the event of termination of the Purchase Order pursuant to this Section 12. Seller shall advise WinWholesale, in writing, of Seller’s claim, if any, for termination costs within seven (7) days after receipt of WinWholesale’s written notice of termination
- Default. In the event of bankruptcy or insolvency proceedings involving Seller, or in the event of the appointment of an assignee for the benefit of creditors or of a receiver, or if Seller is insolvent or fails to perform any provision of the Purchase Order, or so fails to prosecute the work as to endanger its performance of the Purchase Order in accordance with its terms, WinWholesale may, by written notice to Seller, without any liability whatsoever and without prejudice to any other rights or remedies which WinWholesale may have under the Purchase Order or in law or equity, terminate, in whole or in part, cancel or terminate further performance by Seller of the Purchase Order and any other outstanding purchase orders.
In the event of such an occurrence, WinWholesale may complete Seller’s performance by such reasonable means as WinWholesale determines, and Seller shall be responsible for, and shall indemnify WinWholesale against, any expenses and reasonable costs incurred by WinWholesale as a result thereof, including without limitation, attorneys’ fees. Any amounts due Seller for Goods delivered or provided by Seller in full compliance with the terms of the Purchase Order prior to such event shall be subject to setoff of WinWholesale’s additional costs and expenses of completing the Purchase Order and other damages incurred by WinWholesale as a result of Seller’s default. Waiver by WinWholesale of any default of Seller shall not be considered to be a waiver by WinWholesale of any provision of the Purchase Order or of any subsequent default by Seller. Seller shall return to WinWholesale and WinWholesale may at any time enter Seller’s premises to repossess any WinWholesale-Owned Property (as defined in Section 32 below) without liability to WinWholesale.
- Inspection and Expedition. WinWholesale and its customers, at WinWholesale’s option, shall have the right to visit the premises of Seller and any of Seller’s suppliers during their normal hours of operation to inspect and test Goods and work in process and to expedite their manufacture and delivery without relieving Seller of its obligations hereunder. Inspection or testing by WinWholesale (as well as WinWholesale’s failure to detect any defect in Goods) shall not constitute “acceptance” by WinWholesale nor impose any liabilities on WinWholesale; and, notwithstanding any such inspection (or failure to detect any defect in Goods), WinWholesale reserves the right to reject Goods for noncompliance with the provisions of the Purchase Order.
Seller shall provide and maintain an inspection and process or quality control system, or both, acceptable to WinWholesale and its customers covering Goods hereunder. Records of all inspection work and/or test work by Seller shall be kept complete and available to WinWholesale and its customers during the performance of the Purchase Order and for a period of five (5) years after the performance of the Purchase Order. Any prints or tool drawings maintained by Seller on WinWholesale’s behalf shall be returned to WinWholesale upon completion of the performance of the Purchase Order.
- Documentation. It is agreed that all technical documentation and other literature necessary for the proper use of Goods will be provided to WinWholesale with Goods, unless otherwise directed by WinWholesale, and its cost is included in the price of Goods.
- Work on WinWholesale Premises. If Seller’s performance requires Seller, its employees, agents or representatives to perform services or labor on the premises of WinWholesale, its agents, customers, or users, Seller agrees to comply with all safety regulations of WinWholesale, to indemnify and hold harmless WinWholesale against all claims and liabilities for injury or damage to persons or property arising out of such performance by Seller, and to maintain insurance in coverage and amounts acceptable to WinWholesale during such performance. WinWholesale shall have no obligation to maintain insurance against any loss or damage to any materials or equipment of Seller used by Seller in connection with the performance of work on WinWholesale’s premises nor shall WinWholesale have any duty to maintain insurance against any accidents or injuries to persons resulting from Seller’s performance of work on WinWholesale’s premises. Seller shall at all times keep WinWholesale’s premises free from accumulation of waste material and rubbish and shall leave WinWholesale’s premises in broom-clean condition.
- Insurance. Seller shall maintain:
A. Commercial general liability insurance with products liability and completed operations insurance (including without limitation coverage for private labeled products, which must be noted on the Certificate of Insurance) and contractual liability insurance to cover the indemnification provisions in these Terms, which provide, under the terms of the primary policy or by contractual liability endorsement if necessary, coverage in respect of claims involving bodily injury, liability, damages or property damage arising out of or in connection with the Purchase Order or the Goods. Such policies must have limits of not less than $10,000,000 per occurrence and be written on an occurrence basis
B. Environmental Impairment Liability covering Goods and all locations at which Goods are manufactured. Such policy shall not exclude coverage for lead, mercury or asbestos. Such policies must have limits of not less than $10,000,000 per occurrence and be written on an occurrence basis.
All policies of insurance set forth in this Section 17 shall not be cancelable or modified except upon at least ninety (90) days’ prior written notice to WinWholesale. WinWholesale shall be listed on each policy as additional insureds on a primary and non-contributory basis. Each policy shall be written by carriers acceptable to WinWholesale. All insurance carriers must be rated A- or better by AM’s Best. All policies shall contain a waiver of subrogation clause in favor of each of WinWholesale and such waiver of subrogation clause must be listed on each certificate of insurance applicable to the policies. Seller shall furnish WinWholesale, upon demand, an acceptable insurance carrier’s certificate showing that Seller has appropriate workers’ compensation, public liability and property damage insurance coverage as reasonably determined by WinWholesale, setting forth the amount of coverage, policy number and date of expiration, and naming WinWholesale as an insured if so requested. The provisions of this Section 17 shall survive the term and any termination or expiration of Purchase Order.
- Reports. Seller shall furnish to WinWholesale written reports of the cumulative quantities of Goods released hereunder and the status of any Goods in process at least quarterly or in accordance with a reporting schedule otherwise agreed to by the parties.
- Planning Information. Any forecast that may be made by WinWholesale of its requirements shall be made in good faith to assist Seller for planning purposes, but such forecast shall not be deemed a commitment or guarantee by WinWholesale. WinWholesale shall not be responsible for or liable to Seller for any costs or damages relating to Seller’s or any third-party’s change, alteration, use or fabrication of such materials.
- Delivery - Inventory Control. Time of delivery is of the essence in the Purchase Order. Deliveries shall be made strictly in accordance with WinWholesale’s direction, and in exact quantities ordered. Seller will limit and phase expenditures, incurrence of costs and purchases and subcontract commitments for raw materials and components so as to insure continuity of production and permit performance and completion of each production increment in sequence without creating any unreasonable accumulations of raw materials or components for any production increments. Shipments in excess of scheduled quantities or in advance of scheduled delivery dates as shown herein are not to be made without WinWholesale’s written approval and WinWholesale reserves the right to reject any shipments in excess of scheduled quantities or in advance of scheduled delivery dates. Retention of all or any part of such Goods shall not be considered acceptance of same. WinWholesale reserves the right to return at Seller’s expense any shipments received contrary to this instruction. If Seller’s deliveries are so far behind schedule that WinWholesale finds it necessary to call upon Seller for premium transportation, Seller shall be liable for the difference between specified and premium transportation. In addition, Seller shall perform overtime work and establish extra shifts without additional cost to WinWholesale, if necessary to maintain delivery dates. Acceptance by WinWholesale of any late delivery, either in whole or part, shall not constitute a waiver of its claim for any damages resulting from any such late delivery, nor shall it act as a modification of Seller’s obligation to make future deliveries in accordance with the delivery schedule.
- Warranty. Seller warrants that it has clear title to all Goods furnished under the Purchase Order and that such Goods are being delivered to WinWholesale free and clear of any encumbrances of any nature. Seller warrants that Goods provided under the Purchase Order, if such are Goods other than services, will be merchantable, fit for the intended purpose, free from any defects in material or workmanship, free and clear of any encumbrances and will conform to any Specifications, samples and other descriptions and any other requirements of WinWholesale set forth in the Purchase Order. Seller warrants that Goods provided under the Purchase Order, if such Goods are services, will be performed in a workmanlike manner, free from any material defects and will conform to any Specifications, samples and other descriptions and any other requirements of WinWholesale set forth in the Purchase Order. If required by WinWholesale, Seller shall promptly correct or replace defective or nonconforming Goods. Shipping costs from WinWholesale’s place of business to Seller’s place of business for such returns shall be borne by Seller. If WinWholesale does not require correction or replacement, Seller shall repay such portion of the Purchase Order price of said Goods as is equitable under the circumstances. These warranties shall survive acceptance and payment and shall run to WinWholesale, its successors, assigns, customers and users of Goods, and shall not be deemed to be exclusive, but rather, the aforesaid warranties shall be in addition to not lieu of WinWholesale’s other rights under the Purchase Order or at law or in equity. Seller agrees, at its own expense and whenever and as often as reasonably requested by WinWholesale, to furnish and deliver to WinWholesale satisfactory evidence showing that all Specifications and samples have been fully and completely complied with and that Goods supplied hereunder fully and completely conform thereto. WinWholesale’s approval of Seller’s designs, materials or Goods shall not relieve Seller of the warranties set forth herein. The foregoing rights of WinWholesale are not exclusive and shall not limit WinWholesale’s right to avail itself of any other remedy provided by the Purchase Order, at law or in equity.
- Cancellation or Suspension by WinWholesale. WinWholesale reserves the right to cancel the Purchase Order, or any part thereof, at any time, even though Seller is not in default hereunder, by giving written notice to Seller. In the event of such cancellation, WinWholesale shall pay for all Goods delivered and completed and an equitable settlement shall be arrived at for costs incurred by Seller for Goods in process not to exceed the aggregate committed quantity and/or prices specified in the Purchase Order. Where cancellation is by reason of termination of a contract of the United States government under which the Purchase Order has been placed, WinWholesale will pay Seller at such times as WinWholesale is paid by the United States government. Upon receipt of any notice of cancellation hereunder, Seller shall, unless otherwise directed, immediately discontinue all work in process and immediately cancel all orders or subcontracts given or made pursuant to the Purchase Order. Exercise by WinWholesale of the rights of cancellation reserved in this Section 22 shall give rise to no liability on the part of WinWholesale except as specified in this Section 22 and shall not have the effect of waiving damages WinWholesale might otherwise be entitled to. WinWholesale further reserves the right, from time to time and upon written notice to Seller, to suspend and reinstate execution of the whole or any part of the Purchase Order or any other outstanding purchase orders without invalidating the other provisions of the Purchase Order.
- Patent Indemnity Seller hereby represents, warrants and covenants that Goods purchased hereunder and the manufacture, sale, resale or use of them will not infringe any patent, copyright or other intellectual property rights (“Intellectual Property Rights”) of other persons. Unless otherwise specifically agreed to in writing, Seller agrees to indemnify and hold harmless WinWholesale, its successors, assigns, customers and users of Goods against any loss, damage, liability, costs and expenses which may be incurred by them as a result of or in defending or settling any suit, claim, judgment or demand involving infringement of Intellectual Property Rights of other persons by the sale, resale or use of Goods purchased hereunder. Seller agrees that it will assume the defense of WinWholesale, its successors, assigns, customers and users of Goods against any such aforementioned suits, claims or demands, and WinWholesale shall be consulted and have approval rights in the choice of defense counsel and the conduct of the defense.
- Intellectual Property License. Seller grants to WinWholesale a non-exclusive, transferable, sublicensable, and royalty-free license and right to use Manufacturer’s trademarks, symbols, logos, registered words or depictions, trade names and other names, and pictures and other images associated with the products Seller sells to WinWholesale (the “Marks”) in WinWholesale’s promotion, marketing, and advertising of such Manufacturer products (including, without limitation, by way of brochure, website, and other works), and in connection with WinWholesale’s distribution and sale of Seller’s products. WinWholesale acknowledges and agrees that this grant of license by Seller shall not give WinWholesale any ownership in the Marks, and that the Marks shall remain the sole property of Seller. The license granted hereby shall continue until this Agreement is terminated. However, Seller agrees that WinWholesale can continue to use and/or distribute all works and materials developed using the Marks for one (1) year after the effective date of such termination.
- Assignment. Seller shall not assign any portion of the Purchase Order, or any duty or right herein or any claim arising hereunder, and Seller’s performance hereunder shall not be delegated without the prior written consent of WinWholesale. The Purchase Order also may not be assigned by operation of law, by a merger, or by judicial sale or otherwise, without the prior written consent of WinWholesale. Any unauthorized assignment or attempted assignment by Seller shall constitute a material breach of the Purchase Order. The Purchase Order may be assigned by WinWholesale without Seller’s consent.
- Waivers. Failure of WinWholesale to insist on performance of any of the terms and conditions or requirements of the Purchase Order shall not be construed as a waiver of such terms, conditions or requirements and shall not affect the right of WinWholesale thereafter to enforce each and every term, condition or requirement hereof.
- Labor Disputes. Whenever Seller has knowledge that any actual or potential labor dispute is delaying or threatens to delay the timely performance of the Purchase Order, Seller shall immediately give notice thereof, including all relevant information with respect thereto to WinWholesale. Seller agrees to insert the substance of this clause in any subcontract hereunder as to which a labor dispute may delay the timely performance of the Purchase Order, except that each such subcontract shall provide that the notice and information mentioned above shall be given to its next higher tier contractor.
- Compliance with Laws. Seller warrants it and all Goods provided under the Purchase Order comply with all applicable foreign, national, state, and local laws, rules, regulations or orders, as amended or superseded, including without limitation, the applicable provisions of: (i) the Americans with Disabilities Act of 1990 (42 U.S.C. 12101); (ii) the U.S. Fair Labor Standards Act of 1938; (iii) the Occupational Safety & Health Act of 1970; and (iv) all applicable orders issued by the Secretary of Labor; and the full texts of all of the aforementioned laws, rules, regulations and orders are incorporated herein by reference.
Seller further warrants that any chemical substance or hazardous material of any nature sold hereunder, or incorporated into any Goods sold hereunder, shall at the time of sale, transfer or delivery, be on the list of chemical substances compiled and published by the Environmental Protection Agency pursuant to 15 U.S.C.A. Section 2607 and/or by any applicable state or state agency, including without limitation any chemical substances required to be listed pursuant to the California Safe Drinking and Water Act of 1986 (Chapter 6.6 added by Proposition 65, 1986 General Assembly). Seller shall comply with all applicable foreign, federal, state and local laws and/or regulations relating to providing notice and/or warnings to any and all individuals that may come into contact with such chemical substances. Seller shall indemnify WinWholesale from any and all liability, costs, or damages (including, without limitation, attorneys’ fees) of any nature arising from anyone’s exposure to such chemical substances. In addition, where required, Seller shall provide WinWholesale with hazardous material data sheets for all applicable Goods.
All invoices must carry the following certification in order to be passed for payment: “We hereby certify that these goods were produced in compliance with all applicable requirements of Sections VI, VII, and XII of the Fair Labor Standards Act, as amended, and of regulations and orders of the United States Department of Labor issued under Section XIV thereof.”
- Rights and Remedies. Any rights or remedies granted to WinWholesale herein shall not be exclusive of, but shall be in addition to, any other rights or remedies that WinWholesale may have at law or in equity.
- Proprietary Rights. Seller agrees that all WinWholesale-Owned Property (as defined in Section 32 below) and all other information relating to WinWholesale’s business, including without limitation, improvements to Goods, are WinWholesale’s proprietary property (“Proprietary Property”) and shall not be utilized for purposes other than fulfillment of the Purchase Order. Seller shall safeguard, treat as confidential, and shall not disclose to any third party, use, or reproduce any of WinWholesale’s Proprietary Property so long as, and to the extent that such property does not become part of the public domain through no fault of Seller. These obligations shall survive the termination or expiration of the Purchase Order.
- Products, Methods and Manufacturing Processes. Any knowledge or information which Seller shall have disclosed or may hereafter disclose to WinWholesale incident to the placing or filling of the Purchase Order, shall not, unless otherwise specifically agreed to in writing by WinWholesale, be deemed to be confidential or proprietary information and accordingly shall be acquired by WinWholesale free from any restrictions.
- Records. When WinWholesale or its customers require the maintenance of records of Goods, materials, parts, assemblies and/or manufacture, and WinWholesale provides Seller with written notice of such requirement, Seller agrees to maintain such records, including drawing number, serial number, if any, and testing data of such Goods, tool drawings, materials, parts, assemblies and/or manufacture and will maintain such records for two (2) years from the date of completion of the Purchase Order.
- WinWholesale-Owned Property. Unless WinWholesale and Seller otherwise agree in writing, Seller hereby grants WinWholesale and WinWholesale’s customers the right, without payment of additional compensation, to use, duplicate, operate, process, disclose and sublicense, all data, writings, reports, or other information and items produced and delivered by Seller to WinWholesale in connection with the Purchase Order. Seller agrees that all Goods and other data, writings, reports, or other information produced hereunder shall be deemed “works for hire” under the Purchase Order. In the event any such Goods are determined not to be a “work for hire” under the copyright laws, Seller hereby assigns to WinWholesale the copyright in such Goods, data, writings, reports, or other information produced hereunder, including without limitation all right, title, and interest therein, in perpetuity. Further, unless WinWholesale and Seller otherwise agree in writing, the following provisions shall apply to any drawings, designs, specifications, tools, tooling, jigs, dies, patterns, equipment, materials, samples or other properties used in the manufacture of Goods for WinWholesale or in the performance of the Purchase Order, that are either supplied to Seller by WinWholesale, or have been paid for by WinWholesale. All such properties shall be referred to as “WinWholesale-Owned Property.”
Title to all WinWholesale-Owned Property shall at all times remain with WinWholesale and Seller shall take all necessary measures to preserve WinWholesale’s title to WinWholesale-Owned Property, free of all encumbrances. WinWholesale retains the right, in addition to other rights provided by law, to enter Seller’s premises at any time and remove WinWholesale-Owned Property with or without a court order and without being liable for trespass. The risk of loss or damage to all WinWholesale-Owned Property shall be with Seller from the time that WinWholesale-Owned Property is delivered to Seller until removed from Seller’s premises as directed by WinWholesale in writing. WinWholesale shall not be liable for loss, damage, detention or delay resulting from causes beyond its control with respect to any WinWholesale-Owned Property to be delivered to Seller by WinWholesale.
With respect WinWholesale-Owned Property, Seller shall:
A. Have the right to use WinWholesale-Owned Property without payment only as required in the performance of the Purchase Order or other work for WinWholesale (and shall not use WinWholesale-Owned Property in the performance of any other work without prior written approval of WinWholesale);
B. On written request of WinWholesale, properly pack and ship WinWholesale-Owned Property to such destination as designated by WinWholesale;
C. At its expense, perform all maintenance work, repairs and replacements necessary so that WinWholesale-Owned Property remains suitable for the use intended;
D. Assume and indemnify WinWholesale against any and all liability for damaged property or injury to, or death of any persons arising from, incidental to the presence of, or use of WinWholesale-Owned Property, whether such damage, injury or death is caused by defects in the property, negligence in the use thereof, or otherwise;
E. Maintain adequate insurance on all WinWholesale-Owned Property in such amounts and coverages acceptable to WinWholesale, and provide proof of such insurance coverage upon written request of WinWholesale;
F. Plainly mark or otherwise adequately identify property as WinWholesale-Owned Property; and
G. Safely store WinWholesale-Owned Property separately and apart from Seller’s property.
- Indemnity. Seller, its heirs, successors, assigns and legal representatives, shall forever protect, indemnify and hold harmless WinWholesale, its subsidiaries and affiliated companies, their successors, assigns, customers and users of Goods provided hereunder, against all damages, expenses, claims, suits, demands, costs, attorneys’ fees or losses of every kind, whether based upon negligence, contract, breach of express or implied warranty, strict liability or any other theory, and all direct, indirect, consequential, special or incidental damages or every kind whatsoever, arising out of or alleged to have arisen out of or in connection with (a) accidents, occurrences, injuries or losses to or of any person or property, upon or about in any way due to or resulting from, or allegedly due to or resulting from, in whole or in part, Goods or the design, preparation, manufacture, construction, assembly, completion, packaging, shipping, delivery or non-delivery of Goods, (b) Seller’s performance or lack of performance hereunder, or (c) breach of any terms or conditions of the Purchase Order. Seller hereby expressly agrees to waive its immunity, if any, under applicable workers’ compensation laws if such immunity affects Seller’s indemnification set forth in this Section 33. The provisions of this Section 33 shall survive the term and any termination or expiration of the Purchase Order.
- Inspection and Audit. At any time during the term of the Purchase Order and for a period of two (2) years after the termination or expiration of the Purchase Order, WinWholesale may, from time to time, audit and/or inspect the facilities and/or books and records (in whatever form they may be kept, whether written, electronic or other) of Seller or Seller’s subcontractors to ensure compliance with these Terms, including but not limited to all documents and other materials, in whatever form they may be kept, which support or underlie those books and records. WinWholesale shall pay all of WinWholesale’s costs and expenses for such inspection or audit; provided, however, if such inspection or audit determines or verifies that Seller has violated any term or condition of these Terms, Seller shall pay all costs and expenses associated with such inspection or audit and for all costs and expenses associated with the next inspection or audit conducted by WinWholesale. The provision of this Section 34 shall survive the term and any termination or expiration of Purchase Order.
- Governing Law. The Purchase Order, and all transactions relating thereto, shall be interpreted under, and governed by, the laws of the State of Ohio in the United States of America without regard to its conflict of law principles. WinWholesale and Seller agree that the proper venue for all actions arising in connection herewith shall be deemed exclusively proper only in state court in Montgomery County, Ohio or in the federal court for the Southern District of Ohio, Western Division and the parties agree to submit to such jurisdiction. Further, the United Nations Convention on the International Sale of Goods (1980) (as amended from time to time) shall not apply to the Purchase Order or any transactions relating thereto. WinWholesale and Seller acknowledge that the Purchase Order may be translated from English (United States) into another language. In the event there is any ambiguity in a translation or any conflict between the terms contained in a translation and the Purchase Order, the English (United States) version of the Purchase Order shall in all cases govern.
- Equal Opportunity. Seller shall observe its responsibilities under Executive Order 11246, as amended and the regulations at 41 C.F.R. Parts 60-1 through 60-60 and 41 C.F.R. Parts 60-250 and 60-741.
- Notices. Except as provided otherwise herein, any notice, approval or consent required or permitted hereunder shall be in writing and will be deemed to have been duly given if mailed by registered or certified mail, postage prepaid, or delivered by overnight courier services with tracking capabilities to the respective addresses of the parties as set forth in the Purchase Order (or such other addresses a party may designate by ten (10) days prior written notice).
- Severability. The provisions of the Purchase Order are severable. If any provision of the Purchase Order shall be adjudged to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that the Purchase Order shall otherwise remain in full force and effect and enforceable.
- Entire Agreement and Miscellaneous. These Terms constitute the full understanding of the parties, and no terms, conditions, understandings or agreements purporting to modify or vary the terms of the Purchase Order or agreement shall be binding unless hereafter made in writing with reference to the Purchase Order and signed by authorized representatives of both parties. These Terms take precedence over Seller’s additional or different terms and conditions, to which notice of objection is hereby given. These Terms shall not be construed against the party preparing them, but shall be construed as if all parties jointly prepared these terms and any uncertainty or ambiguity shall not be interpreted against any one party.
Terms and Conditions of Purchase 02-05-2013.1