Terms and Conditions of Purchase
All orders received by Seller from IRG Power Systems (“Buyer”) (regardless of the media) are hereby deemed to incorporate and be subject to these terms and conditions of purchase (these “Terms”). These Terms, and the terms of any individual purchase orders, may not be modified except by a written document signed by Buyer’s duly authorized representative. These Terms will be sent to Seller at the time of account origination or periodically as required. Unless Seller objects to any of these Terms in writing within ten (10) days of receipt of these Terms, Seller will be deemed to have accepted these Terms. Notwithstanding the foregoing, Seller’s fulfillment of a purchase order from Buyer constitutes acceptance of these Terms. These Terms shall prevail over any of Seller’s general terms and conditions of sale regardless whether or when Seller has submitted its sales confirmation or such general terms and conditions of sale.
1. Delivery. Except as otherwise provided in specific purchase orders, Seller shall tender delivery of an order by placement with carrier for shipment and delivery to Buyer. Title and risk of loss passes to Buyer upon delivery to Buyer during Buyer’s normal business hours or as otherwise instructed by Buyer. Buyer shall not be responsible for freight transportation, duties, insurance, shipping, storage, handling, demurrage, fees and applicable taxes, including, but not limited to, all sales, use or excise taxes, or similar charges unless such charges are included in the price on a specific purchase order.
2. Inspection. Buyer has the right to inspect the goods on or after the date on which Seller delivers such goods to Buyer. 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 the goods are nonconforming or defective. Buyer shall provide Seller with written notice of rejection for any goods within thirty (30) days after receipt of the goods. Upon receipt of any such notice from Buyer, Seller shall be afforded a reasonable opportunity to inspect the goods. If Buyer rejects any portion of the goods, Buyer has the right, effective upon written notice to Seller, to: (a) rescind the underlying purchase order 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, Seller shall, at its expense, promptly replace the nonconforming or defective goods and pay for all related expenses. Buyer shall have the right to conduct further inspections after Seller has carried out its remedial actions.
3. Installments. Buyer shall have the right to request delivery in installments. All installments shall be separately invoiced and paid as billed without regard to subsequent deliveries. Delay in deliveries of any installment shall not relieve Seller of its obligation to deliver remaining installments. Buyer reserves the right to withhold payment until any and all disputes regarding purchase orders and related installment deliveries are resolved to Buyer’s satisfaction. Pricing for any purchase orders with installment delivery will be held firm until the last delivery date indicated in the installment delivery schedule.
4. Delays. Time is of the essence with regard to Seller’s obligations under these Terms and under any purchase order. If Seller for any reason anticipates that deliveries will not be made as required, it shall immediately give Buyer written notice setting forth the cause(s) of the anticipated delay. If delay or inability to perform arises from interruption of supply or scarcity of raw materials or parts used by Seller, Buyer’s purchase orders shall be given priority in production scheduling. Buyer reserves the right, without liability, to take any or all of the following actions if for any reason Seller does not comply with its delivery obligations in their entirety: (1) assess a late delivery fee of no more than 1.0% per day of the invoice amount for each day in excess of thirty (30) days past the requested shipment date on the purchase order for late deliveries of products, (2) submit a revised purchase order, (3) terminate the purchase order and purchase products elsewhere, and Seller shall be liable for any resultant expense or loss, or (4) seek specific performance of Seller’s obligation to deliver.
5. Warranty. Seller warrants to Buyer that for a period of 12 months from the date of delivery, all goods will (i) be free from any defects in workmanship, material and design; (ii) conform to applicable specifications; (iii) be fit for their intended purpose and operate as intended; (iv) be free and clear of all liens, security interests or other encumbrances; and (v) not infringe or misappropriate any third party’s intellectual property rights. These warranties survive any delivery, inspection, acceptance or payment of or for the goods by Buyer. These warranties are cumulative and in addition to any other warranty provided by law or equity. Seller will make available to Buyer all transferable warranties made to Seller by the manufacturer of the goods.
6. Indemnification. Seller shall defend, indemnify and hold harmless Buyer and its subsidiaries, affiliates, successors or assigns and its 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 purchased from Seller or Seller’s negligence, willful misconduct or breach of the Terms. In addition, Seller 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 infringes or misappropriates intellectual property right of any third party. Seller shall not enter into any settlement without Buyer’s prior written consent.
7. Compliance with Laws. Seller shall comply with all applicable laws, regulations and ordinances, including any applicable export and import laws. Seller shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under these Terms and any purchase order between Seller and Buyer.
8. Confidentiality. All non-public, confidential or proprietary information of Buyer disclosed by Buyer to Seller, whether or not marked, designated or otherwise identified as “confidential,” in connection with these Terms or a purchase order is confidential, solely for the purpose of fulfilling an order and may not be disclosed unless authorized in advance by Buyer in writing. Upon Buyer’s request, Seller shall promptly return all documents and other materials received from Buyer. Buyer’s confidential or proprietary information does not include information that is: (a) in the public domain; (b) known to Seller at the time of disclosure; or (c) rightfully obtained by Seller on a non-confidential basis from a third party.
9. Governing Law and Venue. Any contracts between Buyer and Seller, including these Terms and any purchase order, are effective only when accepted by Buyer. All matters arising out of or relating to such contracts shall be governed by and construed according to the laws of the State of Missouri, United States of America, without giving effect to any choice or conflict of law provision or rule. Any legal suit, action or proceeding arising out of or based upon any contracts between Buyer and Seller, including these Terms and any purchase order, must be brought exclusively in the U.S. District Court for the Eastern District of Missouri or state court located in St. Louis County, Missouri. Seller must institute any controversies, actions, or claims arising out of or relating to these Terms or a purchase order between Buyer and Seller within three (3) years after occurrence giving rise to the controversy or claim.
10. Import/Export. In the event that the order received by Seller from Buyer involves the export of goods outside the United States or import of goods from outside the United States to the United States, the following terms shall also apply:
a. Seller (or Seller’s designated export or import agent) shall be responsible for the timely application for, and obtaining and maintaining in Seller’s name all necessary export or import licenses, exchange permits or any other authorization required by the governmental authorities in the jurisdiction to which export or from which import is made. Buyer and Seller agree to cooperate with each other when such cooperation is required for such licenses, permits or other authorizations and reasonably possible.
b. Except as otherwise provided in specific orders, all import or export duties, customs or other fees or charges shall be the sole responsibility of Seller.
c. All shipments of products by Seller outside of the United States are subject to export control laws and regulations. Buyer shall not make any disposition of U.S.-origin products purchased from Seller by way of trans-shipment, re-export, diversion or otherwise, other than in and to the ultimate country of destination specified on Buyer’s purchase order, except as permitted by law.
11. Severability. In the event that any provision or clause of these Terms is determined to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision or invalidate or render unenforceable such term or provision in any other jurisdiction, and to this end the provisions of these Terms.
12. Waiver. No waiver by Buyer of any of the provisions of these Terms is effective unless explicitly set forth in writing and signed by Buyer. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from these Terms operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
13. Entire Agreement. These Terms 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.