Poly-clip System LLC’s Purchase Terms and Conditions

1. Acceptance of Terms/Controlling Provisions. Poly-Clip System LLC, an Illinois limited liability company (“Buyer”) and the supplier (“Vendor”) hereby agree that these purchase terms and conditions (“Terms”) shall govern all of Buyer’s purchases of goods (“Goods”) and services (“Services”) from Vendor and shall also apply to all quotations, orders, and contracts for the Goods whether ordered via purchase order (“Purchase Order”) or otherwise. The Purchase Order and these Terms (collectively this “Agreement”) comprise the entire agreement between the parties and supersede all prior or contemporaneous understandings, agreements, negotiations, representations, and warranties, and communications, both written and oral. THE CONDITIONS CONTAINED IN THE AGREEMENT SHALL TAKE PRECEDENCE OVER ANY OTHER CONDITIONS AND NO CONTRARY, ADDITIONAL, OR DIFFERENT PROVISIONS OR CONDITIONS SHALL BE BINDING ON VENDOR OR BUYER UNLESS EXPRESSLY ACCEPTED BY VENDOR AND BUYER IN A WRITING SIGNED BY AN AUTHORIZED REPRESENTATIVE OF VENDOR AND BUYER. In the case of sales outside of the United States of America, Buyer and Vendor expressly agree that the provisions of the U.N. Convention on the Sale of Goods (C.I.S.G.) are herewith excluded.
2. Delivery of Goods and Performance of Services; Title and Risk of Loss. Vendor shall deliver the Goods in the quantities and on the date(s) specified in the Purchase Order or as otherwise agreed in writing by the parties (the “Delivery Date”). Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point. If Vendor fails to deliver the Goods in full on the Delivery Date, Buyer shall have the right to terminate this Agreement in addition to other remedies set forth herein and under applicable laws. Vendor shall deliver all Goods to the address specified in the Purchase Order (the “Delivery Point”) during Buyer’s normal business hours or as otherwise instructed by Buyer. Vendor shall pack all goods for shipment according to Buyer’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. Any return of such packaging material shall be made at Vendor’s risk of loss and expense.
3. Inspection and Rejection of Nonconforming Goods. Buyer, at its sole option, may inspect all or a sample of the Goods and may reject all or any portion of the Goods if it determines that the Goods are nonconforming or defective. If Buyer rejects any portion of the Goods, Buyer has the right, effective upon written notice to Vendor, to: (a) rescind this Agreement in its entirety; (b) accept the Goods at a reasonably reduced price; or (c) reject the Goods and require replacement of the rejected Goods. If Buyer requires replacement of the Goods, Vendor shall, at its expense, promptly replace the nonconforming or defective Goods and pay for all related expenses, including but not limited to, transportation charges for the return of the defective goods and the delivery of replacement Goods. If Vendor fails to timely deliver any replacement Goods, Buyer may replace them with goods from a third party and charge Vendor for the cost thereof and terminate this Agreement for cause pursuant to Section 12. Any inspection or other action by Buyer under this Section shall not reduce or otherwise affect Vendor’s obligations under the Agreement, and Buyer shall have the right to conduct further inspections after Vendor has carried out its remedial actions.
4. Price/Payment Terms. The price of the Goods and Services is the price stated in the Purchase Order (the “Price”). If no price is included in the Purchase Order, the Price shall be the price set forth in Vendor’s published price list in effect as of the date of the Purchase Order. Unless otherwise specified in the Purchase Order, the Price includes all packaging, transportation costs to the Delivery Point, insurance, customs duties, and fees, and applicable taxes, including, but not limited to, all sales, use, or excise taxes. No increase in the Price is effective, whether due to increased material, labor, or transportation costs, or otherwise, without the prior written consent of Buyer. Vendor shall issue an invoice to Buyer on or any time after the completion of delivery and only in accordance with these Terms. Buyer shall pay all properly invoiced amounts due to Vendor after receipt of such invoice, within the time frame found in the “Supplier Terms” section of the Purchase Order, except for any amounts disputed by Buyer in good faith. If no time frame is printed in the “Supplier Terms” section of the Purchase Order, then Buyer shall pay all properly invoiced amounts due to Vendor within thirty (30) days after Buyer’s receipt of such invoice, except for any amounts disputed by Buyer in good faith. Without prejudice to any other right or remedy.
5. Vendor’s Obligations Regarding Services. Vendor shall: (i) ensure that all persons whether employees, agents, subcontractors, or anyone acting for or on behalf of the Vendor are properly licensed, certified, or accredited as required by applicable law and are suitably skilled, experienced, and qualified to perform the Services; and (ii) ensure that all of its equipment used in the provision of the Services is in good working order and suitable for the purposes for which it is used and conforms to all relevant legal standards and standards specified by the Buyer.
6. Change Orders. Buyer may at any time by written instructions and/or drawings issued to Vendor (each a “Change Order”) order changes to the Services. Upon receipt of a Change Order, Vendor shall promptly submit to Buyer a firm cost proposal for the Change Order. If Buyer accepts such cost proposal, Vendor shall proceed with the changed services subject to the cost proposal and the terms and conditions of this Agreement. Vendor acknowledges that a Change Order may or may not entitle Vendor to an adjustment in the Vendor’s compensation or the performance deadlines under this Agreement.
7. Warranties. Vendor warrants to Buyer that all Goods will: (i) be free from any defects in workmanship, material, and design; (ii) conform to applicable specifications and other requirements; (iii) be fit for their intended purpose and operate as intended; (iv) be merchantable; (v) be free and clear of all liens, security interests, or other encumbrances; and (vi) not infringe or misappropriate any third party’s patent or other intellectual property rights. If Buyer gives Vendor notice of noncompliance pursuant to this Section, Vendor shall, at its own cost and expense, promptly (i) replace or repair the defective or nonconforming Goods and pay for all related expenses, including but not limited to, transportation charges for the return of the defective or nonconforming goods to Vendor and the delivery of repaired or replacement Goods to Buyer, and if applicable, (ii) repair or re-perform the applicable Services.
8. General Indemnification. Vendor shall defend, indemnify, and hold harmless Buyer and Buyer’s subsidiaries, affiliates, successors or assigns, and their respective directors, officers, shareholders, and employees (collectively “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost, or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively “Losses”) arising out of or occurring in connection with the Goods and Services purchased from Vendor or Vendor’s negligence, willful misconduct, or breach of the Terms. Vendor shall not enter into any settlement without Buyer’s prior written consent.
9. Intellectual Property Indemnification. Vendor shall, at its expense, defend, indemnify, and hold harmless Buyer and any Indemnitee against any and all Losses arising out of or in connection with any claim that Buyer’s or Indemnitee’s use or possession of the Goods or use of the Services infringes or misappropriates the patent, copyright, trade secret, or other intellectual property right of any third party. In no event shall Vendor enter into any settlement without Buyer’s or Indemnitee’s prior written consent.
10. Limitation of Liability/Statute of Limitations. Nothing in this Agreement shall exclude or limit (a) Vendor’s liability under any Section of this Agreement or (b) Vendor’s liability for fraud, personal injury or death caused by its negligence or willful misconduct. BUYER SHALL NOT BE LIABLE FOR ANY ANTICIPATED PROFITS, SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR PENALTIES OF ANY KIND. BUYER’S LIABILITY ON ANY CLAIM ARISING OUT OF, IN CONNECTION WITH, OR RESULTING FROM ANY PURCHASE ORDER OR FROM PERFORMANCE OR BREACH HEREOF SHALL IN NO CASE EXCEED THE PRICE ALLOCABLE TO GOODS OR SERVICES GIVING RISE TO THE CLAIM. VENDOR MUST COMMENCE ANY ACTION AGAINST BUYER ARISING FROM THIS AGREEMENT WITHIN ONE YEAR FROM DATE THE CAUSE OF ACTION ACCRUES.
11. Insurance. During the term of this Agreement, Vendor shall at its own expense maintain and carry insurance in full force and effect which includes minimum coverages as listed below: (i) commercial general liability insurance including products and completed operations, broad form contractual, and personal and advertising injury liability coverage providing bodily injury and property damage coverage on an occurrence form affording minimum single limit protection of no less than One Million Dollars ($1,000,000) per occurrence and with deductibles no greater than One Hundred Thousand Dollars ($100,000) per occurrence; (ii) commercial automobile liability insurance to cover all owned, non-owned, and hired vehicles in the amount of at least One Million Dollars ($1,000,000) per occurrence; (iii) worker’s compensation insurance in accordance with the legal requirements of the state where Vendor conducts its operations, as well as employer’s liability insurance in the amount of at least One Million Dollars ($1,000,000) per occurrence; (iv) excess or umbrella liability insurance with limits of at least Five Million Dollars ($5,000,000) per occurrence in excess of the limits afforded for general liability, automobile liability, and employer’s liability provided above; (v) professional liability insurance with limits of at least one million dollars ($1,000,000) per claim for economic damages sustained by Buyer and due to errors and omissions arising out of the performance of professional services to Buyer; (vi) Privacy/Network Security (Cyber) liability coverage providing protection against liability for (1) privacy breaches (liability arising from the loss or disclosure of confidential information no matter how it occurs), (2) system breach, (3) denial or loss of service, (4) introduction, implantation, or spread of malicious software code, and (5) unauthorized access to or use of computer systems, with limits of Ten Million Dollars ($10,000,000) per occurrence. No exclusion/restriction for unencrypted portable devices/media may be on the policy. Upon Buyer’s request, Vendor shall provide Buyer with a certificate of insurance from Vendor’s insurer evidencing the insurance coverage specified in these Terms. Buyer shall be named as an additional insured on the general, automobile, and excess/umbrella liability policies.
12. Termination. In addition to any remedies that may be provided under these Terms, Buyer may terminate this Agreement with immediate effect upon written notice to the Vendor, either before or after the acceptance of the Goods or Vendor’s delivery of the Services, if Vendor has not performed or complied with any of these Terms, in whole or in part. Additionally, Buyer may at any time and for any reason terminate this Agreement upon thirty (30) days written notice to Vendor. In the event of such termination, Buyer shall not be responsible for any of Vendor’s costs resulting from the termination, including without limitation, Vendor’s costs associated with any purchase of material relating to this Agreement. If Buyer terminates the Agreement for any reason, Vendor’s sole and exclusive remedy is payment for the Goods received and accepted and Services accepted by Buyer prior to the termination.
13. Confidentiality/Ownership of Buyer Material. The parties agree not to disclose to third parties and to only use for the sole purpose of the Agreement any trade secrets (the “Confidential Information”) received from a Party in connection with the Agreement. The plans, documents, results, materials, tools, molds, product samples, data, and information of any nature provided by Buyer to Vendor (“Buyer Material”) shall at all times remain the exclusive property of Buyer. They may not be disclosed or used without the prior written consent of Buyer, other than for the performance of the Agreement. Vendor shall, upon request of Buyer, either return to Buyer or delete all confidential information supplied by it during the term of this Agreement in written or other tangible form (such as samples of products, tools, molds, etc.) including all copies thereof, with the exception of electronic back-up tapes that are maintained in the ordinary course.
14. Force Majeure. Neither party shall be liable to the other for any delay or failure in performing its obligations under this Agreement to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party’s fault or negligence, and which by its nature could not have been foreseen by such party, or if it could have been foreseen, was unavoidable (“Force Majeure Event”). Force Majeure Events include, but are not limited to, acts of God or the public enemy, government restrictions, government acts, government orders, new laws, new regulations, floods, fire, earthquakes, explosion, epidemic, pandemic, quarantine restriction, war, invasion, hostilities, terrorist acts, threats of terrorism, riots, strike, embargoes, or industrial disturbances. Vendor’s economic hardship or changes in market conditions are not considered Force Majeure Events. Vendor shall use all diligent efforts to end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized, and resume performance under this Agreement. If a Force Majeure Event prevents Vendor from carrying out its obligations under this Agreement for a continuous period of more than ten (10) business days, Buyer may terminate this Agreement immediately by giving written notice to Vendor.
15. Assignment/Severability/Amendment and Modification. Vendor shall not assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement without the prior written consent of Buyer. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Vendor of any of its obligations hereunder. Buyer may at any time assign or transfer any or all of its rights or obligations under this Agreement without Vendor’s prior written consent to any affiliate or to any person acquiring all or substantially all of Buyer’s assets. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.
16. Governing Law, Venue, and Jurisdiction/WAIVER OF JURY. The Agreement and all purchases made pursuant thereto shall be governed by and interpreted for all purposes in accordance with the laws of the state of Illinois, without regard to this state’s or any other jurisdiction’s conflict of laws rules. Buyer and Vendor stipulate and agree that the court of competent subject matter jurisdiction for Lake County, Illinois, U.S.A., shall have jurisdiction, and both parties agree that such venue is proper in such courts for all actions or proceedings with respect to these General Terms. FURTHERMORE, THE PARTIES HERETO ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL RIGHT, BUT THAT THIS RIGHT MAY BE WAIVED. THE PARTIES EACH HEREBY KNOWINGLY, VOLUNTARILY, AND WITHOUT COERCION WAIVE ALL RIGHTS TO A TRIAL BY JURY OF ALL DISPUTES ARISING OUT OF OR IN RELATION TO THIS AGREEMENT.
17. Ethical Compliance. Vendor represents that it: (i) will perform this Agreement and operate its business in compliance with applicable laws; (ii) will perform this Agreement and operate its business to the highest ethical standards; (iii) will not take any action that will cause Buyer or Vendor to be in breach of any applicable laws for the prevention of fraud, bribery and corruption, racketeering, money laundering, terrorism, product security, or product safety, including the US Foreign Corrupt Practices Act; (iv) will not offer, pay, request, or accept any bribe, inducement, kickback, or facilitation payment and will not make or cause another to make any offer or payment to any individual or entity for the purpose of influencing a decision for the benefit of Vendor; and (v) will use reasonable efforts to cause its affiliated companies, suppliers, and subcontractors performing Services for Buyer or any of its affiliates to operate their business in compliance with all applicable laws.