Terms and Conditions – Suppliers and Sub-Contractors
1. Acceptance of Terms: The Purchase Order, these Terms and Conditions, and where applicable, all supplements, drawings, and written specifications supplied by Buyer to Seller, all purchase documents governing Buyer’s order from Buyer’s prime contractor (“Customer”) for which the Goods and Services purchased by the Order are intended to be utilized or otherwise are in furtherance of (“Prime Contract”), including without limitation, any Prime Contract Flowdowns incorporated by Buyer by reference in these Terms and Conditions (such documents, collectively, the “Order”), establish and constitute the complete and exclusive agreement between A To Z. Machine Company, Inc. (“Buyer”) and the party to whom the Order is addressed and that party’s affiliates, parents, subsidiaries, and divisions (collectively, “Seller”) with respect to the production, purchase, sale and delivery of the goods or performance of the services identified in the Purchase Order (“Goods and Services”). Any additional or different terms and conditions which may appear in any communication from the Seller or in any printed form of the Seller are hereby rejected and shall not be effective or binding unless specifically agreed to in writing by Buyer. No such additional or different terms or conditions shall become part of the order despite Buyers’s receipt thereof unless Buyer specifically agrees in writing to their inclusion.
2. Pricing: Prices for the Goods and Services described in the Purchase Order are fixed as specified therein and constitute the total price for the manufacture and delivery of the Goods or Services, unless otherwise agreed in writing. Seller is not entitled to adjustments in the purchase price except as expressly provided in the Order and will not add charges of any type to an invoice without prior written consent from Buyer, which consent would constitute an amendment to the Order. Prices may be subject to decreases if specified elsewhere in the Order. Seller represents and warrants to Buyer that the price charged to Buyer complies with all applicable governmental laws and regulations in effect at the time of quotation, sale, and delivery. Prices shall be inclusive of all federal, state, and local taxes except those taxes from which Buyer as a purchaser is exempt or immune.
3. Shipping Instructions: Seller shall be responsible for the proper packaging of the Goods. Shipments will be prepaid via least costly common carrier, F.O.B. destination, unless otherwise stated in the Order. Buyer’s Purchase Order number must appear on all invoices, packing lists, packages, shipping notices, instruction manuals, and any correspondence. A listing of contents shall be enclosed with each shipment. Shipping charges, if expressly allowed under the Purchase Order, must be supported by copies of bills attached to invoices. Title and risk of loss shall pass to Buyer at shipping point regardless of method of shipping.
4. Time of Delivery: Time of delivery is of the essence of the Order, and the Order is subject to late fees for failure to deliver on time. Seller shall notify Buyer in writing immediately of any actual or potential delay or threat of delay to the timely performance of the Order, including notice to Seller of any actual or potential labor dispute which delays or threatens to delay the timely performance of the Order. Seller acknowledges and agrees that, where applicable, Buyer has the right to flow down and pass through to Seller any and all late fees or charges assessed by Customer of Buyer under the Prime Contract as a result of Seller’s late delivery.
5. Terms of Payment: Unless otherwise specified in the Purchase Order, Payments for Goods or Services furnished under the Order shall be due within sixty (60) days after receipt and acceptance of the Goods and Services by Buyer. Amounts not timely paid will incur an interest charge to be paid by Buyer of 1.5% per month, or if lower, the highest allowable by law.
6. Acceptance of Goods or Services: Acceptance of Goods or Services occurs at the time the Goods or Services are delivered to and receipted for at the location shown on the Purchase Order and Buyer has had a reasonable opportunity to inspect the Goods and Service for conformance to the Order. Acceptance shall not be deemed to cover defects that were not obvious (and not latent) at the time of inspection. In no event shall Buyer be liable to Seller for consequential damages resulting from any defects or deficiencies identified in accepted items. Goods and Services rejected by Buyer for any reason may be held, transported and/or stored by Buyer at Seller’s sole expense. On items delivered in error or in excess of the quantity ordered or authorized, Buyer reserves the right to return said items at Seller’s expense. Seller agrees to hold Buyer harmless for any damages, destruction, or other loss during such return. Seller shall promptly reimburse Buyer for any expense that Buyer has advanced on Seller’s behalf in holding, transporting and/or storing, rejected or nonconforming goods or over shipments.
7. Quality and Inspection: The Goods or Services supplied hereunder shall be of good quality, free from any faults, and defects, in conformance with the Order, including all specifications provided to Seller by Buyer, and shall at all times be subject to Buyer’s inspection before acceptance by Buyer. Neither Buyer’s inspection nor failure to inspect shall relieve Seller of any obligations, representations, or warranties hereunder. If the Goods and Services fail to conform to the Order’s specifications or are otherwise defective, Seller shall promptly replace the same at Seller’s sole expense. No payment for or acceptance of Goods and Services by Buyer hereunder shall constitute a waiver of any of the foregoing nor shall anything herein contained be construed to exclude or limit any or Seller’s warranties implied by law.
8. Right to Inspect Plant and Work: Buyer, and where as required by Buyer’s Customer under the Prime Contract, may, at reasonable times, inspect the part of the plant or place of business and work in progress of a Seller or any subcontractor of Seller, which is related to the performance of the Order.
9. Waiver: The waiver of any breach of the terms of the Order by Buyer shall not constitute a waiver of any of its terms or any subsequent breach, nor shall any payment for goods delivered constitute such waiver.
10. Warranties: Seller warrants that all Goods and Services supplied under the Order conform to the specifications of the Order, to be of merchantable quality, and to be free from defect in materials and workmanship. Seller shall honor standard commercial guarantees and warranties offered by the Seller, and any other specific warranty or guarantee specified elsewhere in the Order.
11. Liens or Claims: Seller warrants the Goods and Services furnished under the terms of the Order are unencumbered and not subject to any lien or claim.
12. Assignment: The Order, including the right to receive payment, is not transferable, or otherwise assignable without the express prior written consent of Buyer. Requests for transfer or assignment must be in writing, and in advance. An instrument of assignment shall be subject to prior claims of persons, firms, and corporations for supplies provided in the performance of the Order.
13. Changes: No modification of any of the terms or conditions of the Order, including, but not limited to, delivery, price, quality, quantities, and specifications, will be effective without the prior express written consent of Buyer.
14. Indemnification: Seller agrees to hold harmless Buyer, its Board of Directors, officers, agents and employees from, and to defend it against, any and all claims arising from the purchase, installation, and/or use of the Goods or Services which are furnished by the Seller under the Order. Seller assumes all risk of damages or injury to Seller’s own employees, property or person acting for or on behalf of Seller from whatever cause. Nothing herein shall be construed so as to relieve Buyer from liability arising solely as a result of its own acts or omissions.
15. Force Majeure: Seller or Buyer may delay delivery or acceptance occasioned by causes beyond Seller’s or Buyers’s reasonable control. If such delay exists beyond a period of five (5) working days, Buyer, at its sole discretion, shall have the right to: (a) terminate the Order, in whole or in part, (b) suspend the Order for the duration of the delaying cause, (c) resume performance under the Order once the delaying cause ceases, (d) or extend the effective dates up to the length of time the contingency endured, all without liability to the Seller.
16. Termination, Delays, and Excused Performance. Buyer may, by written notice stating the extent and effective date, terminate the Order for convenience, in whole or in part, at any time. In such event, Buyer shall pay the Seller as full compensation for performance until such termination: (1) the unit or pro rata price for the delivered and accepted portion; (2) a reasonable amount, as approved by the Buyer, not otherwise recoverable from other sources by the Seller with respect to the undelivered, unperformed or unaccepted portion of the Order; provided compensation hereunder shall in no event exceed the total Order price. Buyer may, by written notice, terminate the order for Seller’s default, in whole or in part, at any time, if the Seller refuses or fails to comply with the provisions of the Order or so fails to make progress as to endanger performance and does not cure such failure within a reasonable period of time or fails to make delivery or perform within the time specified or any written extension thereof. In such event, the Seller shall be liable for any and all damages incurred by Buyer including but not limited to cost of inspections, receipt, transportation, care, custody, and cover cost. Seller shall also be liable for any and all consequential damages incurred by Buyer that are related to such breach. If performance is delayed through no fault, and for reasons beyond the reasonable control of the Seller, an extension of time may be granted for completion. If a delay is determined to have been caused by Buyer, the time for performance, and the price of the order may be subject to adjustment. Seller shall in any event notify Buyer without delay when Seller has reason to believe performance will or may be delayed.
17. Retention, Examination, and Audit: Buyer, and where required by Buyer’s Prime Contract, the Customer and its agents may, at reasonable times and places, examine, copy, and audit the books and records of the Seller to the extent that the books and records relate to the Order or any cost and pricing data related to the Order. The Seller shall maintain books and records that relate to the order for three (3) years after the date of final payment under the order.
18. USE OF GOVERNMENT SUPPLY SOURCES. If any terms and conditions stated herein conflict with the terms and conditions of a government supply source, the terms and conditions of the government supply source takes precedence.
PRIME CONTRACT FLOW DOWN CLAUSES FOR PURCHASE ORDERS ISSUED UNDER FEDERAL CONTRACTS
Seller shall be bound to Buyer, and/or, as applicable, Customer, the U.S. Government, in the same way that Buyer is bound to the U.S. Government under the Prime Contract, with respect to the Prime contract terms and conditions set forth in the document entitled Flowdowns and Contract Clauses (or similar) provided to Seller (the “Flowdowns”). With respect to the applicable Federal Acquisition Regulation (“FAR” and Defense Federal Acquisition Regulation Supplement (“DFARS”) clauses set forth in the Flowdowns, by entering into the Order and rendering performance under the Order, Seller represents and warrants to Buyer that Seller is fully apprised of and in compliance with the latest version of the FAR and DFARS clause in effect, both at the time of entry into the Order and at any time hereafter when Seller provides Goods or Services pursuant to the Order. Seller is responsible for ensuring at all times that it is in compliance with, and that all Goods and Services received are in compliance with, the latest version of the FAR and DFARS clauses then in effect at the time of performance regardless of whether such FAR and DFARS clauses are posted on Buyer’s website or otherwise provided to Seller by Buyer. Buyer reserves the right to make updates and/or changes to the Flowdowns as necessary for Buyer to comply with its obligations to Customer under the Prime Contract. For avoidance of doubt, Seller shall additionally be bound to Buyer, and/or, as applicable the U.S. Government, in the same way that Buyer or the Customer is bound to the U.S. Government under the Prime Contract, with respect to any such updates and/or changes. Buyer may communicate to Seller updates and/or changes to the Flowdowns by either, as applicable, and at Buyer’s sole discretion: (1) posting the updated and/or changed Flowdowns on Buyer’s corporate website, located at https://www.atozmachine.com/terms-and-conditions; or (2) sending Seller a copy of the Flowdowns, as changed and/or updated.
IT IS THE RESPONSIBILITY OF SELLER TO COMPLY WITH THE FAR/DFARS CLAUSES/PROVISIONS APPLICABLE TO SELLER, THE REQUIREMENTS OF THE ORDER, AND THE PRIME CONTRACT.
19. Conflicts: If there is conflict between the Order, the Prime Contract, applicable FAR and DFARS clauses, and/or any prior or contemporaneous agreement or document exchanged between Buyer and Seller, or any other document attached to or incorporated into the Order by reference, the documents shall be controlling in the following order of priority (a) the applicable FAR and DFARS clauses incorporated by reference these Terms and Conditions and the Prime Contract; (b) the terms of the Prime Contract; (c) the Order; and (d) all supplements, drawings, and written specifications. To the extent of any conflict between drawings and written specifications provided by Buyer, the written specifications will govern. The parties have agreed, and it is their intent that the “battle of the forms” described in Section 2-207 of the Uniform Commercial Code will not apply to this Order or to any invoice or acceptance form of Seller relating to this Order.
20. Limitation of Liability: Buyer’s total liability and Seller’s exclusive remedy for any cause of action associated with the Order, whether based in tort, contract, strict liability or any other legal theory is expressly limited to the purchase price of the Goods and Services sold herein. In no event shall Buyer be liable for any other damages including without limitation, incidental, special, punitive or consequential damages including loss of profits, loss of production, loss of use or any other indirect damage or loss of any kind.
21. Governing Law: The contractual relationship between Buyer and Seller relating to the supply of the Goods and Services herein shall be governed by, and construed in accordance with, the laws of the State of Wisconsin as though made and to be fully performed in said state.
22. Choice of Venue: Each Party stipulates that any dispute regarding the Order shall be commenced and prosecuted in its entirely in, and consents to the exclusive jurisdiction and proper venue of the state courts located in Outagamie County, Wisconsin, and each Party consents to personal and subject matter jurisdiction and venue in such courts and waive and relinquish all right to attack the suitability or convenience of such venue or forum by reason of their present or future domiciles, or by any other reason. The Parties acknowledge that all directions issued by the forum court, including all injunctions and other decrees, will be binding and enforceable in all jurisdictions.
23. Attorneys’ Fees; Expenses: Should litigation between Buyer and Seller arise out of the Order, the prevailing party in such action shall be entitled to collect all of its reasonable attorneys’ fees, costs, and disbursements from the other party.