- Signed Contract: These Terms and Conditions and A to Z Machine Co., Inc.’s Purchase Order to Subcontractor are the “Contract.” All terms and conditions contained in any prior or subsequent oral or written communications, including, without limitation, terms and conditions contained in Subcontractor’s Purchase Order or Acknowledgement, which are different from or in addition to the Contract are hereby rejected and shall not be binding on A to Z Machine Co., Inc. and A to Z Machine Co., Inc. hereby objects thereto.
- Insurance: Subcontractor shall purchase and maintain insurance that will protect Subcontractor from claims arising out of Subcontractor operations under this Agreement, whether the operations are by Subcontractor, or any of the Subcontractor’s consultants or subcontractor or anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable. Subcontractor shall name A to Z Machine Co., Inc as additional ensured and provide a Certificate of Insurance to A to Z Machine Co., Inc.
- Indemnification: The work performed by Subcontractor shall be at the risk of the Subcontractor exclusively. Subcontractor hereby indemnifies and holds A to Z Machine Co., Inc., its parent and affiliates and their respective officers, directors, employees and agents, harmless from and against any and all claims, actions, losses, judgments, or expenses, including reasonable attorneys’ fees, arising from or in any way connected with the work performed, materials furnished, or services provided to A to Z Machine Co., Inc. by Subcontractor during the term of the Agreement.
- Understanding of Non-Employment: Subcontractor is an independent contractor and not an employee of A to Z Machine Co., Inc.
- Risk of Loss; Title: Title to and risk of loss or of damage to the Goods shall remain with Subcontractor until delivery to A to Z Machine Co., Inc. at the destination specified in the applicable Purchase Order. A to Z Machine Co., Inc. shall not be required to assert any claims against common carriers. Subject to A to Z Machine Co., Inc.’s right of inspection and rejection of nonconforming goods under the Uniform Commercial Code, A to Z Machine Co., Inc. shall be deemed to have accepted the Goods, and title and risk of loss or damage to such Goods shall pass to A to Z Machine Co., Inc. upon delivery to the appropriate address specified in the applicable Purchase Order unless A to Z Machine Co., Inc. notifies Subcontractor of A to Z Machine Co., Inc.’s rejection of the Goods within a reasonable time.
- Overshipments and Advance Shipments: Subject to its rights of inspection and acceptance, A to Z Machine Co., Inc. shall have no obligation to accept (a) Goods which exceed the quantity specified in the applicable Purchase Order (“overshipments”), or (b) Goods delivered to the wrong A to Z Machine Co., Inc. location or prior to the delivery date designated in the applicable Purchase Order (“advance shipments”). For advance shipments A to Z Machine Co., Inc. may, at its option, either return the Goods at Subcontractor’s sole risk and expense (including, without limitation, transportation charges) or delay paying the Purchase Price until the payment date which corresponds to the delivery date designated in the applicable Purchase Order. A to Z Machine Co., Inc. shall hold overshipments at Subcontractor’s risk and expense for a reasonable time while awaiting shipping instructions from Subcontractor, and any shipment of such Goods shall be at Subcontractor’s sole risk and expense.
SUBCONTRACTOR WARRANTS THAT:
- IF THERE IS A FAILURE OF AN A TO Z MACHINE CO., INC. FABRICATED PRODUCT IN THE FIELD AND SUBCONTRACTOR’S PRODUCT/SERVICE IS IN QUESTION, SUBCONTRACTOR MAY BE REQUIRED TO PARTICIPATE IN FAILURE ANALYSIS REVIEWS WITH A TO Z MACHINE CO., INC. AND ITS CUSTOMER(S) IN RESOLVING THE ISSUE. IF SAID FAILURE IS FOUND TO BE ATTRIBUTABLE, IN WHOLE OR IN PART, TO THE PRODUCT/SERVICE PROVIDED BY SUBCONTRACTOR, SUBCONTRACTOR AND A TO Z MACHINE CO., INC. WILL CONDUCT SEPARATE NEGOTIATIONS TO DETERMINE SUBCONTRACTOR’S PARTICIPATION IN COSTS THEREOF.
- SUBCONTRACTOR WARRANTS THAT ITS PRODUCTS/SERVICES WILL CONFORM TO APPLICABLE SPECIFICATIONS, DRAWINGS, SAMPLES AND/OR OTHER DESCRIPTIONS GIVEN AND WILL BE MERCHANTABLE AND FIT FOR THE PARTICULAR PURPOSE FOR WHICH IT HAS BEEN PURCHASED AND FREE FROM DEFECTS IN WORKMANSHIP AND MATERIAL FOR A PERIOD OF EIGHTEEN (18) MONTHS FROM SHIPMENT OR FOR THE PERIOD PROVIDED IN SUBCONTRACTORS STANDARD WARRANTY COVERING WORK, WHICHEVER IS LONGER. SUBCONTRACTOR WILL USE COMMERCIALLY REASONABLE EFFORTS TO OBTAIN AND FLOW THROUGH TO A TO Z MACHINE CO., INC. THIRD PARTY WARRANTIES FOR ANY PRODUCTS NOT MANUFACTURED BY SUBCONTRACTOR. IN ADDITION, ALL PRODUCTS WILL BE SUBJECT OT ALL WARRANTIES PROVIDED BY APPLICABLE LAW. SUBCONTRACTOR WARRANTS THAT IT HAS AND WILL PROVIDE A TO Z MACHINE CO., INC. WITH TITLE TO THE PRODUCTS FREE AND CLEAR OF ALL CLAIMS LIENS AND ENCUMBRANCES. ALL PRODUCTS PROVIDED TO A TO Z MACHINE CO., INC. HEREUNDER WILL BE NEW. THE WARRANTIES CONTAINED IN THIS SECTION ARE IN ADDITON TO AND ARE NOT TO BE CONSTRUED AS RESTRICTING OR LIMITING ANY WARRANTIES OR REMEDIES OF A TO Z MACHINE CO., INC., EXPRESS OR IMPLIED, WHICH ARE PROVIDED BY A PURCHASE ORDER OR LAW. ANY ATTEMPT TO LIMIT, DISCLAIM OR RESTRICT ANY SUCH WARRANTIES OR REMEDIES OF A TO Z MACHINE CO., INC., IN ANY MANNER WHATSOEVER, WILL BE NULL, VOID AND INEFFECTIVE. INSPECTION, TEST, ACCEPTANCE OR A TO Z MACHINE CO., INC.’S INCORPORATION OF PRODUCTS WILL NOT AFFECT SUBCONTRACTOR’S OBLIGATIONS UNDER THIS WARRANTY, AND WILL SURVIVE SUCH INSPECTION, TEST, ACCEPTANCE, AND USE. UPON NOTICE FROM A TO Z MACHINE CO., INC. THAT PRODUCTS SUPPLIED HEREUNDER FAILS WITHIN THE WARRANTY TIMEFRAME, IN ADDITION TO ANY RIGHTS OR REMEDIES A TO Z MACHINE CO., INC. MAY HAVE UNDER A PURCHASE ORDER OR LAW, SUBCONTRACTOR WILL REIMBURSE A TO Z MACHINE CO., INC. FOR ALL COSTS INCURRED BY A TO Z MACHINE CO., INC. AS A RESULT OF SUCH FAILURE, INCLUDING ALL REPAIR AND REPLACEMENT COSTS, AND SUBCONTRACTOR WILL REPLACE SUCH DEFECTIVE PRODUCTS AT NO COST TO A TO Z MACHINE CO., INC. OR REFUND THE PURCHASE PRICE OF THE PRODUCTS, AT A TO Z MACHINE CO., INC.’S DISCRETION. WARRANTY FAILURES WILL BE RETURNED TO SUBCONTRACTOR AT SUBCONTRACTOR’S EXPENSE. ALL REPAIRS AND/OR REPLACEMENTS WILL BE WITH NEW PRODUCTS ONLY. FOR SERVICES PROVIDED, SUBCONTRACTOR WARRANTS THAT (A) SUBCONTRACTOR AND THE INDIVIDUALS PROVIDED BY IT HEREUNDER POSSESS THE EXPERIENCE AND ABILITY TO PERFORM THE SERVICES; (B) SERVICES WILL BE PERFORMED IN A WORKMANLIKE AND PROFESSIONAL MANNER AND IN CONFORMANCE WITH ALL APPLICABLE LAWS AND PROFESSIONAL STANDARDS; (C) NO SERVICES, MATERIALS, EQUIPMENT OR PRODUCTS SUPPLIED BY SUBCONTRACTOR WILL INFRINGE THE RIGHTS OF ANY THIRD PARTY, INCLUDING BUT NOT LIMITED TO, PATENT, TRADE SECRET, TRADEMARK OR COPYRIGHT; (D) SUBCONTRACTOR IS NOT PROHIBITED BY ANY AGREEMENT FROM ENTERING IN TO THE PO OR PROVIDING THE SERVICES CONTEMPLATED HEREBY; AND (E) SUBCONTRACTOR HAS VERIFIED THE CREDENTIALS OF THE INDIVIDUALS PROVIDED BY IT HEREUNDER AND THAT THEY ARE SUITED TO PERFORM THE SERVICES.
- THE MANUFACTURE, PACKAGING, LABELING AND TRANSPORTATION OF THE GOODS COMPLIES WITH ANY AND ALL FEDERAL, STATE OR LOCAL LAWS, RULES, REGULATIONS AND ORDINANCES.
- Defective or Nonconforming Goods: A to Z Machine Co., Inc. shall have the right but not the obligation to inspect all Goods. If any of the Goods are defective or otherwise not in conformity with the requirements of this Agreement, then in addition to the remedies contained in Article 16 below, A to Z Machine Co., Inc. shall have the right to:
- Reject the Goods without obligation or liability and direct Subcontractor, at Subcontractor’s sole risk and expense, to properly dispose of the non-conforming Goods, in accordance with industry standards and all applicable laws, rules and regulations, and return any affected equipment to its proper condition; and
- Upon notification to Subcontractor, obtain replacement Goods from another vendor and recover from Subcontractor the difference between the Purchase Price and the price paid by A to Z Machine Co., Inc. for such replacement Goods, plus A to Z Machine Co., Inc.’s reasonable expenses related to such replacement. Refunds to A to Z Machine Co., Inc. for rejected or replaced Goods and payment of related expenses shall be made by Subcontractor in cash.
Subcontractor shall not replace any rejected Goods without A to Z Machine Co., Inc.’s prior consent. Any replacement of the Goods shall be additionally and automatically warranted against defects and subject to these same obligations of Subcontractor for a period of ninety (90) after the date of such replacement.
- Changes: Notwithstanding anything to the contrary contained herein, A to Z Machine Co., Inc. may make changes in the scope of a Purchase Order at any time, and make changes in the method of shipping or packaging and place or time of delivery, by any reasonable means of communication. If any change affect the Purchase Price or delivery schedule for the Goods, an equitable adjustment to the affected Purchase Price or delivery schedule shall be make if Subcontractor makes a written claim for such adjustment within seven (7) days from the date A to Z Machine Co., Inc. notifies Subcontractor of the change and A to Z Machine Co., Inc. agrees in writing to said adjustment.
- Infringment: Subcontractor represents to A to Z Machine Co., Inc. that Goods do not and shall not infringe upon any existing or pending patents, copyrights, trade secrets or other proprietary rights of third parties. Subcontractor shall defend at Subcontractor’s sole cost and expense any suit or other proceeding for infringement or misappropriation of any patent, copyright, trade secret or other proprietary right brought against A to Z Machine Co., Inc. or A to Z Machine Co., Inc.’s successors or assigns based upon use of the Goods. Subcontractor shall indemnify A to Z Machine Co., Inc. against liability, loss, damage, costs or expense of any kind or nature incurred in connection with any such suit or other proceeding. In addition, if A to Z Machine Co., Inc. is enjoined from using such Goods because of claims of misappropriation or infringement Subcontractor shall at its sole expense and in the following sequence:
- Obtain for A to Z Machine Co., Inc. the right to continue using such infringing Goods; or
- Replace such infringing Goods with non-infringing but equivalent Goods; or
- Modify the Goods so that they are non-infringing but equivalent.
If Subcontractor cannot accomplish any of the aforesaid solutions to the reasonable satisfaction of A to Z Machine Co., Inc., then Subcontractor, at A to Z Machine Co., Inc.’s option, shall purchase all infringing Goods from A to Z Machine Co., Inc. at the total Purchase Price paid by A to Z Machine Co., Inc. for all such infringing Goods and pay A to Z Machine Co., Inc. all costs and expenses incurred by A to Z Machine Co., Inc. in the removal of such Goods. All such payments to A to Z Machine Co., Inc. shall be made by Subcontractor in cash. A to Z Machine Co., Inc. shall promptly notify Subcontractor of any such suit for patent, copyright, trademark, trade secret or other proprietary right infringement brought against A to Z Machine Co., Inc. relating to A to Z Machine Co., Inc.’s use of the Goods.
- Default and Termination:
11.1 If Subcontractor fails to deliver Services, Goods or related Equipment, if any, or perform the Services in accordance with the delivery and service requirements of this Contract or any Purchase Orders issued pursuant to this contract; or
11.2 If Subcontractor fails to comply with any other material provision of this Contract and fails to remedy or cure such breach within ten (10) days after notice of such failure; or
11.3 If Subcontractor becomes insolvent or otherwise unable to pay its debts as they mature or a petition under federal or state bankruptcy or receivership laws is filed by or against Subcontractor.
Should any of the above circumstances occur, A to Z Machine Co., Inc. may elect to terminate this Agreement entirely or only with respect to the affected Purchase Order(s) by giving written notice to Subcontractor of such election. In the event of such termination, A to Z Machine Co., Inc. shall not be liable to Subcontractor for any amount (including, without limitation, incidental or consequential damages) except that Subcontractor shall be paid for all conforming Goods ordered by A to Z Machine Co., Inc. prior to such termination and satisfactorily delivered in accordance with this Contract. Subcontractor shall be liable to A to Z Machine Co., Inc. for any and all damages sustained by A to Z Machine Co., Inc. as a result of the default or other occurrence which resulted in such termination. Whether or not A to Z Machine Co., Inc. elects to terminate, A to Z Machine Co., Inc. may purchase replacement Goods from other suppliers and Subcontractor shall compensate A to Z Machine Co., Inc. for all costs of obtaining such replacement goods in excess of the applicable Purchase Price.
- Confidentiality: Subcontractor shall not at any time, either prior to or after the termination of this Contract, without A to Z Machine Co., Inc.’s express written permission, make use of (except for A to Z Machine Co., Inc.’s direct benefit as authorized herein), disclose or allow to be disclosed to others any confidential information or trade secret regarding A to Z Machine Co., Inc.’s products, business, customers, processes, techniques or operations learned by Subcontractor incident to its performance hereunder. All specifications, documents, drawings and other data delivered by either party to the other in connection with this Contract shall be subject to this confidentiality obligation.
- Assignment: Waiver; Remedies: Subcontractor shall not delegate any duties or liabilities nor assign any rights or claims under this Contract without the prior written consent of A to Z Machine Co., Inc.. Any such attempted delegation or assignment shall be void. Except as provided in this Article 13, this Contract shall be binding upon and inure to the benefit of the assignees, successors and assigns of the parties and A to Z Machine Co., Inc. may allow any of its subsidiaries to participate in this Contract. The waiver by A to Z Machine Co., Inc. of any breach of any term, condition or provision of this Contract shall not be construed as a waiver of any other term, condition or provision of this Contract, nor shall such waiver be deemed a waiver of any subsequent breach of the same or any other term, condition or provision of this Agreement. The remedies specified in this Agreement shall be cumulative, nonexclusive and in addition to any other remedies available at law or in equity.
- Notices: Unless otherwise provided in this Contract, any required notices shall be sent in writing, by certified mail (return receipt requested), reputable overnight courier, telecopy or hand delivery, to the applicable party at the respective address shown on the Purchase Agreement, and shall be deemed effective on the date received. Either party may change its notice address by giving advance notice of such change to the other party in accordance with this Article 14.
- Entire Agreement: This Contract, together with the additional, non-conflicting terms, if any, set forth in the applicable Purchase Order, constitutes the entire agreement between A to Z Machine Co., Inc. and Subcontractor with respect to the Goods. All prior and contemporaneous proposals, negotiations, representations and agreements with respect to the Goods are merged into this Contract and no course of prior dealings between the parties and no usage of the trade shall be relevant to supplement or explain any tem used in this Contract. Except for A to Z Machine Co., Inc.’s right to unilaterally modify the Purchase Order at any time as stated in Article 9, this Contract may not be altered, modified, superseded or amended and no additional or different terms shall become a part of this Agreement, except pursuant to a writing specifically referencing this Contract which is signed by both parties to this Contract.
- Limitation of Liability: A to Z Machine Co., Inc.’s total liability and Subcontractor’s exclusive remedy for any cause of action associated with the Contract, whether based in tort, contract, strict liability or any other legal theory is expressly limited to payment in an amount not to exceed the purchase price of the goods sold herein for which damages are claimed at A to Z Machine Co., Inc. In no event shall A to Z Machine Co., Inc. 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 to Subcontractor.
- Governing Law: The contractual relationship between A to Z Machine Co., Inc. and Subcontractor relating to the supply of the goods sold 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.
- Choice of Venue: If there is a lawsuit, Subcontractor agrees upon A to Z Machine Co., Inc.’s request to submit to the jurisdiction of the courts of Outagamie County, State of Wisconsin.
- Attorneys’ Fees; Expenses: Should litigation between Subcontractor and A to Z Machine Co., Inc. arise under the terms of the Contract, the prevailing party shall be entitled to Attorneys’ Fees and Expenses from the other party.