- Terms + Conditions
Sales Order Terms and Conditions
Review Date: 06/27/2023
1. Controlling Terms and Conditions. Acceptance of the Invoice is expressly limited to the terms and conditions stated herein and any additional or different term or condition on Buyer’s purchase order or acknowledgement form or otherwise communicated or proposed by Buyer is hereby objected to and rejected by Seller. Any such term or condition shall be totally inapplicable to the Invoice unless specifically agreed to in writing signed by an authorized representative of Seller. Shipment of the Goods covered by the Invoice shall not constitute acceptance by Seller of Buyer’s terms and conditions. Any correspondence, proposal, purchase order or other communication from Buyer characterized as an offer is hereby rejected in full, and in such situation the Invoice constitutes Seller’s counter-offer.
2. Acceptance. The Invoice is an offer to sell the goods and perform the services as set forth on the face hereof (the “Goods”). Buyer shall immediately and irrevocably accept the Goods when tendered and shall, in the case of nonconforming Goods, follow only the procedures and remedies outlined in the Invoice. If Buyer refuses to accept such Goods, Seller shall be entitled to exercise all rights and remedies available to it pursuant to the Uniform Commercial Code and all other applicable laws related to the sale of goods in the jurisdiction where the Goods are sold. Upon acceptance, the Invoice shall constitute the entire agreement between the Seller and the Buyer with respect to the Goods.
3. Changes; Taxes. The quantities, prices, terms, conditions or other pertinent specifications of the Invoice shall not be changed except by Seller's written authorization. Notwithstanding the foregoing, Buyer and Seller acknowledge and agree that all prices for the Goods, whether quoted or set forth in the Invoice shall be adjusted to Seller’s prices in effect at the time of shipment of the Goods. If transportation charges are included in the prices quoted or set forth in the Invoice, then any changes in such transportation charges shall be adjusted to the charges in effect at the time of the shipment of the Goods. Seller’s prices do not include sales, use, excise, value added, customs duties, or other similar taxes; therefore, the amount of any such present or future taxes applicable to the sale of the Goods, the use of the Goods by Buyer, or applicable to the shipping destination shall be paid by the Buyer.
4. Permissible Variations. Except as otherwise agreed to in writing by Buyer and Seller, all Goods shall be produced in accordance with Seller’s standard practice. All Goods and materials incorporated into the Goods, including those produced to meet exact specifications, shall be subject to deviations and variations consistent with usages of the trade, manufacturing processes, testing and inspection.
5. Solvency and Credit Approval. Buyer acknowledges and agrees that by placing its order for the Goods Buyer hereby represents and warrants that Buyer is solvent. In the event that Buyer becomes insolvent before accepting the Goods, it will notify Seller in writing of such insolvency. Failure to notify Seller shall constitute a written reaffirmation of Buyer’s solvency at the time of acceptance. Ordering, shipment and deliveries shall at all times be subject to Seller’s approval (in Seller’s sole discretion) of Buyer’s creditworthiness. If at any time Seller believes that its prospect of receiving payment from Buyer has been impaired, or if Buyer is insolvent or has repudiated its agreement with Seller or failed to make payment in full for any prior installment, then Seller may at any time, at Seller’s sole option do all or any of the following: (i) decline to make any shipment or delivery of Goods except upon receipt of prior payment or security, or upon such other terms and conditions as determined in Seller’s sole discretion; (ii) suspend production until any payments are received by Seller; or (iii) stop delivery of Goods at any time prior to delivery to Buyer. In addition to the foregoing, Seller shall have no obligation to make any further shipments of Goods until all payments for prior shipments have been received by Seller.
6. Payment, F.C.A., Title and Risk of Loss. Payment shall be made by Buyer in United States dollars or other medium acceptable to Seller. Payment shall be made by Buyer upon Seller’s presentation of the Invoice to Buyer, subject to the terms and conditions of payment stated herein. Unless otherwise stated in the quotation, seller’s prices are quoted F.C.A. Sunnen Products Company, St. Louis, Missouri, USA, Incoterms 2020 (at the location indicated on the face of the Invoice) unless otherwise stated on the face of the Invoice. The risk of loss or damage to the Goods shall pass to Buyer at the F.C.A. point, Seller’s warehouse (at the location indicated on the face of the Invoice). Notwithstanding the foregoing, title to the Goods shall transfer to Buyer on delivery at Buyer’s designated shipping destination.
7. Machine Acceptance Delay. For goods which require acceptance or runoff of the goods at Sunnen Products Company (Sunnen) prior to shipment, if customer has been notified Sunnen is prepared for acceptance/runoff at Sunnen, and such acceptance cannot be performed due to customer delays, any progress payments which are due prior to shipment will be invoiced after 30 days of said notification. Payment is due net 30 days or prior to shipment from Sunnen, whichever occurs first. If acceptance/runoff is delayed beyond 30 days, due to no fault of Sunnen, the Customer agrees to pay Sunnen a delayed shipment charge of 0.5% percent of the purchase price for every day the runoff is delayed. This will be invoiced at the time of acceptance, due net 30 days.
8. Shipment Authorization Delay. Upon notification that the goods are ready for shipment from Sunnen Products Company (Sunnen), if the customer fails to authorize shipment within 14 days, due to no fault of Sunnen, the Customer agrees to pay Sunnen a delayed shipment charge of 0.5% percent of the purchase price of those goods for every day the shipment of the goods is delayed, starting 15 days from the date of notification.
9. Delivery; Force Majeure. Each delivery of Goods shall stand as a separate sale and is subject to credit arrangements in accordance with Section 5. All delivery dates specified by Seller are approximate and are based upon its best estimate and are subject to change due to conditions beyond Seller’s control, including, but not limited to: (i) acts of God, unforeseeable circumstances, acts (including delay or failure to act) of any governmental authority or quasi-governmental authority, war (declared or undeclared), riot, revolution, priorities, fires, strikes, explosions, floods, quarantine restrictions, sabotage or epidemics, (ii) inability due to causes beyond Seller’s control to timely obtain, at normal prevailing market prices, necessary and suitable labor, materials, components, manufacturing facilities, transportation or instructions from Buyer, and (iii) any other cause beyond Seller’s reasonable control if by reason of any such circumstances Seller is unable to supply the total demand for the Goods to be delivered hereunder. Seller may make partial delivery of Buyer’s order shown on the Invoice or may distribute the available supply of Seller among any or all purchases on such basis as it may deem appropriate without liability for any failure of performance which may result therefrom. In the event of any such delay or failure, the date of delivery shall be extended for a period of time equal to the time lost by reason thereof.
10. Limited Warranty. For a period of twelve (12) months for consumables and (3) years for machines from the date of delivery of the Goods to the F.C.A. point, the Seller warrants to the original Buyer of the Goods that: (i) all Goods provided for under the Invoice will conform to the requirements of the Invoice; and (ii) at the time of delivery of the Goods, the Goods will be free of defects in materials and workmanship. Seller shall have the right, in its sole discretion, to extend the length of the applicable warranty period by delivering notice in writing to Buyer setting out the length of such extension and any other terms and conditions applicable thereto (including all costs and expenses related thereto). This warranty does not cover any defects or costs caused by: (i) modification, alteration, repair, or service of the Goods by anyone other than Seller; (ii) physical abuse to, or misuse of, the Goods or their operation in an incorrect manner; (iii) any use of the Goods other than that for which they were intended; or (iv) damage during any shipment of the Goods. This warranty excludes all costs arising from routine maintenance, including the replacement of any parts required by such maintenance. THE WARRANTY PRINTED ABOVE IS THE ONLY WARRANTY APPLICABLE TO THIS PURCHASE AND THE GOODS; SELLER MAKES NO WARRANTIES (EXPRESS OR IMPLIED) OTHER THAN AS SET FORTH IN THIS SECTION 10. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT THE SELLER SHALL NOT BE DEEMED OR HELD TO BE OBLIGATED, LIABLE OR ACCOUNTABLE UPON OR UNDER ANY GUARANTEES OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR BY OPERATION OF LAW OR OTHERWISE AND SELLER EXCLUDES ALL IMPLIED WARRANTIES (WHETHER IMPLIED IN FACT OR IMPLIED IN LAW OR IMPOSED BY LAW), INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ANY EXPRESS WARRANTY NOT PROVIDED HEREIN, AND ANY REMEDY THAT, BUT FOR THE WARRANTY CONTAINED HEREIN, MIGHT ARISE BY IMPLICATION OR OPERATION OF LAW, IS HEREBY EXCLUDED AND DISCLAIMED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
IT IS UNDERSTOOD AND AGREED THAT SELLER’S LIABILITY AND BUYER’S SOLE REMEDY, WHETHER IN CONTRACT, UNDER ANY WARRANTY, IN TORT (INCLUDING NEGLIGENCE), IN STRICT LIABILITY OR OTHERWISE SHALL NOT EXCEED THE RETURN OF THE AMOUNT OF THE PURCHASE PRICE PAID BY BUYER, AND UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, PROPERTY DAMAGE, DAMAGE TO OR LOSS OF EQUIPMENT, LOST PROFITS OR REVENUE, COSTS OF RENTING REPLACEMENTS, AND OTHER ADDITIONAL EXPENSES, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SELLER WILL NOT BE LIABLE FOR ANY DAMAGES, LOSSES, OR EXPENSES AS A RESULT OF THE BUYER’S NEGLIGENCE, WHETHER DEEMED ACTIVE OR PASSIVE, AND WHETHER OR NOT ANY SUCH NEGLIGENCE IS THE SOLE CAUSE OF ANY SUCH DAMAGE, LOSS OR EXPENSE.
11. Buyer’s Remedies.
Buyer’s sole and exclusive remedy for any alleged breach of the Seller’s warranties set forth in Section 10 or for any delivery of alleged nonconforming Goods shall be as set forth in this Section 11. Within ten (10) days after learning of any alleged defect or failure to fulfill the warranties set forth in Section 10, or in any event not more than twelve (12) months from the date of delivery of the Goods to the F.C.A. point (or such extended warranty period as may be determined by Seller as set forth in Section 10), Buyer shall deliver written notice to the Seller stating with reasonable detail any alleged defect or any failure to fulfill the warranties set forth in Section 10. Upon receipt of such notice, Seller shall, at Seller’s option, either: (i) issue a credit to Buyer for the Goods provided, however that Buyer shall return, by prepaid shipment at Buyer’s sole cost, all allegedly nonconforming Goods, only after first obtaining and following such instructions as Seller may require for authorizing any return by Buyer; or (ii) correct such failure by repairing or replacing such Goods found to be in fact nonconforming. Buyer’s retention of the Goods and failure to notify the Seller as set forth herein shall constitute a waiver of all claims with respect to the Goods.
Buyer acknowledges and agrees with Seller that any after-sales service work (including, but not limited to, (i) installation, repair, service or maintenance of the Goods, (ii) enhancements, upgrades or modifications to the Goods, (iii) training in respect of the operation and use of the Goods, or (iv) supervision of any such functions) to be performed on the Goods during the applicable warranty period as set forth in Section 10 requires specialized knowledge and shall be performed exclusively by an employee, contractor, representative or agent of Seller who has a very high degree of knowledge in respect of the Goods and already has the requisite skills obtained through extensive training in respect of the installation, repair, service, maintenance, enhancement, upgrade, modification and training of, to or in respect of the operation and use of, the Goods. For sales to Buyers located in Canada, Buyer acknowledges and agrees that Seller may supervise or train any Canadian citizen or permanent resident employee, contractor, representative or agent of Seller or Buyer regarding the use of the Goods at Buyer’s location to which the Goods are delivered or at such other location where the Goods are located as agreed by Seller and Buyer from time to time. Buyer may request from Seller and Seller may provide to Buyer, from time to time, enhancements, upgrades or modifications to the Goods or training in respect of the operation and use of the Goods, and the fees and expenses payable by Buyer related thereto shall be charged at the then-prevailing rates established by Seller.
12. Intellectual Property Indemnity. The Buyer agrees to indemnify and hold harmless the Seller, its successors, assigns, against any loss, damage, liability, costs and expenses which may be incurred as a result of or in defending or settling any suit, claim, judgment or demand involving infringement of any patents, trademarks or copyrights, or for unfair competition, arising from compliance with Buyer’s designs, specifications or instructions. The Buyer agrees that it will, when so requested, assume the defense of the Seller and/or its successors and assigns against any such suits, claims or demands.
13. Other Indemnifications. Buyer agrees to protect, defend, hold harmless and indemnify Seller from and against any and all liability and expense resulting from: (i) Buyer’s failure to comply with the terms and conditions of the Invoice; or (ii) any violation of any law, statute, ordinance, administrative order, rule or regulation connected with the Goods.
14. Assignment. Buyer may not assign, without the Seller’s prior written consent: (i) the Invoice or any portion hereof; (ii) any duty or right herein; or (iii) any claim arising hereunder. The Invoice may not be assigned by operation of law or a merger or judicial sale or otherwise without the prior written consent of Seller. Any unauthorized assignment or attempted assignment by Buyer shall constitute a material breach of the Invoice. The Invoice may be assigned by Seller to any of its successors or assigns without the Buyer’s prior written consent. The Invoice shall be binding upon and inure to the benefit of Buyer and Seller and their permitted successors and assigns.
15. Occupational Safety & Health Act. All items supplied by Seller shall be certified by Seller to be in compliance with requirements and standards of the Occupational Safety & Health Act of 1970 and all other applicable laws related to occupational health and safety in the jurisdiction where the Goods are located. In addition, where required, hazardous material data sheets will be supplied on all applicable products. Failure of Buyer to contest a citation resulting from non-compliance of these items will not relieve the Seller of liability under this warranty.
16. Department of Labor Compliance. In compliance with the Executive Order 13496 and Executive Orders 11246 and 11375, Equal Employment Opportunity and Section 503 of the Rehabilitation Act of 1973 and Section 402 of the Vietnam Veterans Readjustment Assistance Act of 1974, the acknowledgment is a certificate of compliance which includes a certification of nondiscrimination with regard to race, creed, color, national origin, sex or age.
17. Chemical Substances. By the Invoice, Seller certifies that all Goods supplied to Buyer will comply with provisions of 40 CFR 82.100 and do not contain and were not manufactured using Class l or Class II substances as defined by 40 CFR 82.104.
18. Compliance with Laws. Buyer shall comply with the provisions of all applicable federal, state, provincial and local, regulations, rules and ordinances from which liability may accrue to Seller from any violation thereof by Buyer.
19. Proprietary Rights. Any knowledge or information which Seller shall have disclosed or may hereafter disclose to Buyer, or which may hereafter be acquired by Buyer, in connection with the Goods described herein, including manufacturing information, shall be deemed to be Seller’s proprietary information and confidential and shall not be disclosed by Buyer.
20. Special Equipment. In the event that Seller manufactures or purchases special tools, dies or other equipment in connection with Buyer’s order of the Goods, such tools, dies and equipment shall remain the sole and exclusive property of Seller, notwithstanding that part of the cost thereof is included as part of the price specified herein.
21. Waiver of Terms and Conditions. The failure of Seller in any one or more instances to insist upon performance of any terms or conditions contained herein, or to exercise any right or privilege hereunder, or the waiver by Seller of any breach by Buyer of these terms and conditions shall not be construed as a waiver of any such term, condition, right or privilege or any subsequent breach thereof, and the same shall continue and remain in full force and effect as if no failure or waiver had occurred.
22. Governing Law. This transaction shall be a contract made in the State of Missouri and governed by the laws thereof.
23. Jurisdiction and Venue. Seller and Buyer agree that any dispute arising hereunder shall be subject to the exclusive jurisdiction of the State or Federal Courts in or for St. Louis County, Missouri.
24. Costs. The prevailing party in any litigation brought hereunder shall be entitled to recover its costs and expenses, including reasonable attorney’s fees, incurred in such litigation.
25. Entire Agreement. These terms and conditions, any other special conditions contained in any schedules hereto or any specification or other documents delivered in connection herewith and specifically incorporated herein by reference constitute and represent the complete and entire agreement between Buyer and Seller and supersede all previous communications, either written or verbal with respect to the subject matter of the Invoice.
Return: Preauthorization is required for all items being sent to Sunnen. Please contact Sunnen Customer Service at 1-800-315-3670 for a Return Merchandise Authorization (RMA) Number. All items without an RMA Number will be returned to the customer.
Certification: We hereby certify that these goods where produced in compliance with all applicable requirements of sections 6,7 and 12 of the fair labor standards act, as amended and regulations and order of the United States Department of Labor issued under Section 14 thereof.
These items are controlled by the U.S. Government and authorized for export only to the country of ultimate destination for use by the ultimate consignee or end-user(s) herein identified. They may not be resold, transferred, or otherwise disposed of, to any other country or to any person other than the authorized ultimate consignee or end-user(s), either in their original form or after being incorporated into other items, without first obtaining approval from the U.S. government or as otherwise authorized by U.S. law and regulations.
RETURNS: PREAUTHORIZATION IS REQUIRED FOR ALL ITEMS BEING SENT TO SUNNEN. PLEASE CONTACT SUNNEN CUSTOMER SERVICE AT 1-800-325-3670 FOR A RETURN MERCHANDISE AUTHORIZATION (RMA) NUMBER. ALL ITEMS WITHOUT AN RMA NUMBER WILL BE RETURNED TO THE CUSTOMER.
CERTIFICATION: WE HEREBY CERTIFY THAT THESE GOODS WERE PRODUCED IN COMPLIANCE WITH ALL APPLICABLE REQUIREMENTS OF SECTION6, 7, AND 12 OF THE FAIR LABOR STANDARDS ACT, AS AMENDED AND REGULATIONS AND ORDERS OF THE UNITED STATES DEPARTMENT OF LABOR ISSUED UNDER SECTION 14 THEREOF.
THESE COMMODITIES, TECHNOLOGY, OR SOFTWARE WERE EXPORTED FROM THE UNITED STATES IN ACCORDANCE WITH EXPORT ADMINISTRATION REGULATIONS. DIVERSION CONTRARY TO UNITED STATES LAW IS PROHIBITED.
Purchase Order Terms and Conditions
Purchase Order Terms and Conditions
1. Controlling Terms and Conditions. Acceptance of this Purchase Order is expressly limited to the terms and conditions stated herein and any additional or different term or condition on Seller’s invoice or acknowledgement form, or otherwise communicated by Seller in accepting this Purchase Order or in any quotation or proposal of Seller shall be deemed to be a material alteration of this Purchase Order and is hereby objected to and rejected by Buyer. Any such term or condition shall be totally inapplicable to this Purchase Order unless specifically agreed to in writing signed by an authorized representative of Buyer. Acceptance of the Goods covered by this Purchase Order shall not constitute acceptance by Buyer of Seller’s terms and conditions. Any correspondence, quotation, proposal, bid, invoice or other communication from Seller characterized as an offer is hereby rejected in full, and in such situation this Purchase Order constitutes Buyer’s counter-offer.
2. Acceptance. This Purchase Order is an offer to purchase the goods and services as set forth on the face hereof (the “Goods”). Any of the following acts by Seller shall constitute acceptance of this offer: Signing and returning to Buyer a copy of this Purchase Order; delivery of any of the Goods ordered by this Purchase Order; commencement of the performance requested by this Purchase Order or informing the Buyer in any manner of commencement of performance; sending to Buyer Seller’s own acknowledgment form regarding the Goods; or delivery of the Goods (or a portion of the Goods) to Buyer. Upon acceptance, this Purchase Order shall constitute the entire agreement between the Buyer and the Seller with respect to the Goods.
3. Changes. The quantities, prices, terms and conditions of this Purchase Order shall not be changed except by Buyer's written authorization. Buyer and Seller acknowledge and agree that the Goods and services to be furnished hereunder are to be specifically manufactured in accordance with drawings and/or specifications. Buyer and Seller further acknowledge and agree that Buyer may, at any time, by written order make changes in (i) drawings, designs or specifications, (ii) method of shipment or packing, and (iii) place of delivery and that when such terms are conveyed to Seller, such terms shall constitute a part of this Purchase Order. If any such change causes an increase or decrease in the cost of the Goods, an equitable adjustment shall be made in the purchase price. Seller shall submit its claim within thirty days from the date of receipt of notification of change unless said period is extended in writing by Buyer. Where the cost of property, which has become obsolete or excess as the result of any change is included in Seller's claim for adjustment, the Buyer shall have the right to prescribe the disposition of such property.
4. Specifications. If blueprints, drawings, designs or specifications are furnished by the Buyer, this Purchase Order shall be based upon and the Goods shall conform to such blueprints, drawings, designs and specifications, and approval of samples by the Buyer shall not relieve the Seller from strict and full compliance with such blueprints, drawings, designs and specifications. Goods not conforming to such blueprints, drawings, designs and specifications may be rejected.
5. Payment Not Constituting Acceptance. Payment for any item on this Purchase Order shall not constitute approval or acceptance of such Goods by Buyer or otherwise impair Buyer’s rights or remedies in respect of any default by Seller, and Buyer's right of inspection shall survive payment. Buyer retains the right to inspect the Goods and if the Goods are defective or do not conform to the requirements of this Purchase Order, then Buyer reserves the right to reject the Goods. Upon such rejection, Buyer may terminate this Purchase Order and return the Goods to Seller in exchange for a refund of the purchase price for the Goods. Rejected Goods shall be returned at the expense of Seller upon rejection and Seller shall bear all risk of loss as to such rejected Goods. Alternatively, Buyer may elect to retain rejected Goods and remedy any defects or nonconformity to specifications, drawings or samples and the costs of accomplishing such remedy shall be a reduction in the purchase price paid by the Buyer for the Goods, and Seller shall refund to Buyer any overpayments within 10 days after notice from Buyer. Notwithstanding Buyer’s termination of this Purchase Order or return of Goods to the Seller, Buyer shall retain any and all claims and rights available to it for damages for breach of contract.
6. F.C.A., Title and Risk of Loss. The Goods shall be shipped by the Seller at Seller’s cost F.C.A. the Buyer at the Buyer’s address designated on the face of this Purchase Order. The risk of loss or damage to the Goods shall pass to Buyer upon Buyer’s acceptance of the Goods. Title to the Goods purchased hereunder shall not pass from Seller to Buyer until the Goods have been delivered to and accepted by Buyer in accordance with the terms of this Purchase Order.
7. Delivery-Inventory Control. Deliveries of the Goods shall be strictly in accordance with the schedule referred to in this Purchase Order and in the exact quantities ordered. The Seller will limit and phase expenditures, incurrence of costs and purchases and subcontract commitments for raw materials and components in such fashion to ensure 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 quantities or in advance of scheduled delivery dates as shown herein are not to be made without Buyer’s written approval. Buyer reserves the right to return to Seller at Seller’s expense any shipments received contrary to this Section 7 and Seller shall bear all risk of loss as to such returns.
8. Warranty. The Seller warrants that at the time of delivery thereof all Goods and work provided for under this Purchase Order will be: (i) fit for the purpose for which they are intended; (ii) merchantable, of good material and workmanship and free from any defects in material or workmanship; (iii) will conform to the requirements of this Purchase Order, including any blueprints, drawings, designs or specifications forming a part of this Purchase Order; and (iv) this warranty will run to the buyer, its successors, assigns, customers and users of the Goods. These warranties, and all other warranties express or implied, shall survive delivery, inspection, acceptance and payment. Buyer shall deliver notice of any defects in the Goods or failure to comply with any of the Seller’s warranties set forth herein. Buyer may, at its sole option, require the Seller to promptly correct or replace the defective or non-conforming Goods. The costs of shipment of such defective or non-conforming Goods from Buyer's location to Seller's location and the costs of shipment for any replacement or repaired Goods to Buyer shall be borne by the Seller and the risk of loss to all such Goods shall be borne by Seller. This warranty shall continue as to the replacement and repaired Goods. If the Buyer does not require repair or replacement, the Buyer may elect to retain any defective or non-conforming Goods and remedy any defects or nonconformity and the costs of accomplishing such remedy shall be a reduction in the purchase price paid by the Buyer for the Goods, and Seller shall refund to Buyer any overpayments within 10 days after notice from Buyer. None of the provisions or remedies set forth in this Section 8 is in lieu of any claims for damages (including incidental, consequential or lost profits) which Buyer may have at law or in equity (whether under the Missouri Uniform Commercial Code or otherwise) for the Seller’s breach of this agreement including Seller’s warranties set forth in this Section 8, all of which claims for damage are specifically reserved by Buyer.
9. Cancellation by Buyer. Buyer reserves the right to cancel this Purchase Order, or any part thereof, at any time, even though the Seller is not in default hereunder, by giving written notice to the Seller. In the event of such cancellation, Buyer shall pay for all Goods and services delivered and completed and an equitable settlement shall be arrived at for cost incurred by Seller for Goods and materials in process not to exceed the aggregate committed quantity and/or price specified in this Purchase Order. Where cancellation is by reason of termination of a contract of the United States Government under which this Purchase Order has been placed, Buyer will pay the Seller at such times as Buyer 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 progress and immediately cancel all order or subcontracts given or made pursuant to this Purchase Order. Exercise by Buyer of the rights of cancellation reserved in this Section 9 shall give rise to no liability on the part of the Buyer and shall not have the effect of waiving any claims or damages the Buyer might otherwise be entitled to.
10. Intellectual Property Indemnity. The Seller hereby warrants that the Goods purchased hereunder and the sale or use of them will not infringe any patents, trademarks or copyrights. Unless otherwise specifically agreed to in writing, the Seller agrees to indemnify and hold harmless the Buyer, its successors, assigns, customers and users of its products against any loss damage, liability, costs and expenses which may be incurred as a result of or in defending or settling any suit, claim, judgment or demand involving infringement of any patents, trademarks or copyrights by the sale or use of the Goods purchased hereunder. The Seller agrees that it will, when so requested, assume the defense of the Buyer and/or its successors, assigns and customers and users of its products against any such suits, claims or demands.
11. Other Indemnifications. Seller agrees to protect, defend, hold harmless and indemnify Buyer from and against any and all liability and expense resulting from: (i) any failure of Seller to comply with the terms and conditions of this Purchase Order; (ii) any alleged or claimed defect in the Goods purchased or work performed hereunder, whether latent or patent, including allegedly improper construction and design; or (iii) from the failure of such Goods and services to comply with specifications or with any express or implied warranties of Seller; or (iv) arising out of the alleged violation of any law, statute, ordinance, administrative order, rule or regulation connected with the manufacture or sale of such Goods or services including but not limited to the Federal Occupational Safety and Health Act of 1970, as amended. At Buyer's request Seller shall obtain and maintain during the life of this agreement at its expense, product liability insurance, with a vendor's endorsement, in such form and amount and from such company as may be approved by Buyer in writing. Satisfactory evidence of such insurance shall be submitted to Buyer upon request. For the purposes of this paragraph, "Goods" shall be deemed to include any packaging supplied by Seller.
12. Assignment. Seller may not assign, without the Buyer’s prior written consent, (i) this Purchase Order or any portion hereof; or (ii) any duty or right herein; or (iii) any claim arising hereunder. This Purchase Order may not be assigned by operation of law or a merger or judicial sale or otherwise without the prior written consent of Buyer. Any unauthorized assignment or attempted assignment by Seller shall constitute a material breach of this agreement. This Purchase Order may be assigned by Buyer. This Purchase Order shall inure to the benefit of and be binding upon the Buyer and Seller and their permitted successors and assigns.
13. Labor Disputes.
(a) Whenever the Seller has knowledge that any actual or potential labor dispute is delaying or threatens to delay the timely performance of this Purchase Order, the Seller shall immediately give notice thereof, including all relevant information with respect thereto, to the Buyer.
(b) The Seller agrees to insert the substance of this Section 13, including this paragraph (b) in any subcontract hereunder, except that each such subcontract shall provide that the notice and information mentioned above shall be given to its next higher tier subcontractor.
14. Occupational Safety & Health Act. All items supplied under the terms of this Purchase Order shall be certified by Seller to be in compliance with requirements and standards of the Occupational Safety & Health Act of 1970. In addition, where required, hazardous material data sheets will be supplied on all applicable Goods and services. Failure of Buyer to contest a citation resulting from non-compliance of these items will not relieve the Seller of liability under this warranty.
15. Department of Labor Compliance. In compliance with the Executive Order 13496 and Executive Orders 11246 and 11375, Equal Employment Opportunity and Section 503 of the Rehabilitation Act of 1973 and Section 402 of the Vietnam Veterans Readjustment Assistance Act of 1974, the acknowledgment is a certificate of compliance which includes a certification of nondiscrimination with regard to race, creed, color, national origin, sex or age.
16. Chemical Substances. By acceptance of this Purchase Order, Seller hereby certifies that all Goods and items supplied to Sunnen Products Co. by or through Seller or any of its subcontractors will comply with provisions of 40 CFR 82.100 and do not contain and were not manufactured using Class l or Class II substances as defined by 40 CFR 82.104, are registered with the European Chemicals Agency (ECHA) as required in REACH regulation (EU) 1907/2006, will clearly identify if any Goods or items contain any substances listed on the European Chemicals Agency (ECHA) candidate list of Substances of Very High Concern (SVHC), are compliant with RoHS 3 (EU Directive 2015/863), and do not contain chemicals listed on the most current version of the California Prop 65 List, CHEMICALS KNOWN TO THE STATE TO CAUSE CANCER OR REPRODUCTIVE TOXICITY, and comply with all provisions of the United States Toxic Substances Control Act, 15 USC Chapter 53 Subchapters I to VI in effect as of the date of this purchase order.
17. Compliance with Laws. Seller, in the performance of this Purchase Order shall comply with the provisions of all applicable federal, state and local, regulations, rules and ordinances from which liability may accrue to Buyer from any violation thereof by Seller.
18. Proprietary Rights. Any knowledge or information which Buyer shall have disclosed or may hereafter disclose to Seller, or which may hereafter be acquired by Seller, in the course of the performance of this agreement and in connection with the Goods, including but not limited to, designs, specifications, formulas and manufacturing information shall be deemed to be Buyer’s confidential and proprietary information and shall not be disclosed by Seller.
19. Buyer-Owned Property. Unless Buyer and Seller otherwise agree in writing, the following provisions shall apply to any tools, tooling, patterns, equipment, materials or other properties or supplies used in the manufacture of Goods for Buyer or in the performance of this Purchase Order, that are either supplied to Seller by Buyer, or have been acquired by Seller and specifically paid for by Buyer. All such properties shall hereafter be referred to as Buyer-owned property.
(a) Seller shall have the right to use Buyer-owned property without payment for usage as required in the performance of this Purchase Order or other work for Buyer, but shall not use Buyer-owned property in the performance of any other work without prior written approval of the Buyer. Title to all Buyer-owned property shall at all times remain with Buyer. Title to such property which is procured or manufactured by Seller for Buyer shall be fully vested in Buyer upon Buyer’s acceptance of the same.
(b) Seller shall take necessary measures to preserve Buyer's title to Buyer-owned property, free of all encumbrances. Buyer retains the right, in addition to other rights provided by law, to enter Seller's premises and remove Buyer-owned property with or without a court order.
(c) Seller shall, on written request of Buyer, properly pack and ship Buyer-owned property to such destination as designated by Buyer.
(d) Seller shall, at its expense, perform all maintenance work, repairs and replacements necessary with respect to applicable Buyer-owned property so that such property remains suitable for the use intended.
(e) The risk of loss or damage to all Buyer-owned property shall be left with Seller from the time that such property is delivered to Seller until that property is removed from Seller's place of business as directed by Buyer in writing. Proof of adequate insurance coverage on Buyer-owned property shall be provided to Buyer by Seller upon written request of Buyer.
(f) Buyer shall not be liable for loss, damage, detention, or delay resulting from causes beyond its control with respect to any Buyer-owned property to be delivered to Seller by Buyer.
(g) Seller shall assume and shall indemnity Buyer 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 Buyer-owned property, whether such damage, injury, or death Is caused by defects in the property, negligence in the use thereof, or otherwise.
(h) Seller shall, upon receipt of written request, provide Buyer with a current listing of Buyer-owned property in its or its subcontractor's possession, indicating complete descriptions, quantities, and property conditions.
20. Remedies. No rights or remedies herein provided to Buyer shall be deemed exclusive of any other rights or remedies allowed by law.
21. Lien Waivers. Seller shall furnish to Buyer, within 5 days after Buyer’s request for the same, waivers by Seller and all other persons entitled to assert any lien rights in connection with the Goods and/or the performance of this Purchase Order. Seller shall indemnify Buyer against all costs, loss, or liability incurred by Buyer as a result of any failure by Seller or any other person to comply with the provisions of this Section 21.
22. Waiver of Terms and Conditions. The failure of Buyer in any one or more instances to insist upon performance of any terms or conditions contained herein, or to exercise any right or privilege hereunder, or the waiver by Buyer of any breach by Seller of these terms and conditions shall not be construed as a waiver of any such term, condition, right or privilege or any subsequent breach thereof, and the same shall continue and remain in full force and effect as if no failure or waiver had occurred.
23. Governing Law. This Purchase Order and the acceptance of it shall be a contract made in the State of Missouri and governed by the laws thereof.
24. Jurisdiction and Venue. Seller and Buyer agree that any dispute arising hereunder shall be subject to the exclusive jurisdiction of the State or Federal Courts in or for St. Louis County, Missouri.
25. Costs. The prevailing party in any litigation brought hereunder shall be entitled to recover its costs and expenses, including reasonable attorney’s fees, incurred in such litigation.
26. Entire Agreement. These terms and conditions, any other special conditions contained in any schedules hereto or any specification or other documents delivered in connection herewith and specifically incorporated herein by reference constitute and represent the complete and entire agreement between Buyer and Seller and supersede all previous communications, either written or verbal with respect to the subject matter of this Purchase Order.
All of Sunnen's products are subject to U.S. export controls and sanctions laws and regulations, even after the products are exported from the U.S. and title is transferred from Sunnen. These export control and sanctions regulations include: the U.S. International Traffic in Arms Regulations ("ITAR)" administered by the U.S. Department of State's Directorate of Defense Trade Controls ("DDTC"), U.S. Export Administration Regulations ("EAR") administered by the Bureau of Industry and Security ("BIS"), and the sanctions regulations administered by the Office of Foreign Assets Control ("OFAC") (collectively U.S. export control/sanctions laws").
Customer or Supplier agrees that it will comply with all U.S. export control/sanctions laws and will not export, re-export, transfer, sell or otherwise divert Company products, either in their original form or after being incorporated into other items:
(1) to any U.S. embargoed countries, which currently include the Crimea Region of Ukraine, Cuba, Iran, North Korea, Sudan and Syria.; or (2) to any “Prohibited End-User”, meaning any company, individual, or other party listed on OFAC's Specially Designated Nationals List, BIS's Entity List, Denied Persons List, and Unverified List, DDTC's Debarred Persons List, or any other prohibited party included on the U.S. Consolidated Screening List found at https://www.export.gov/csl-search; or
(2) for an end-use related to: (a) the design, development, production, stockpiling or use of missiles or nuclear, chemical or biological weapons; (b) nuclear facilities not under IAEA safeguards; (c) missiles or unmanned aerial vehicles capable of weapons delivery; or (d) deepwater, Arctic offshore or shale oil or gas exploration or production in or offshore Russia.
Customer or Supplier further certify that they are not a Prohibited End-User, and are not owned or controlled by or acting for or on behalf of a Prohibited End-User.