Purchase Order Standard Terms and Conditions
1. Applicable Contract Provisions
These Purchase Order Standard Terms and Conditions apply to any and all purchase orders submitted by Cambria Company; Cambria FabShop - Minnesota, Inc.; Cambria FabShop - Atlanta, Inc.; Cambria FabShop - Chicago, Inc.; and/or Cambria FabShop - Indianapolis, Inc. ( the “Buyer”) to the Seller to whom these Purchase Order Standard Terms and Conditions are delivered, including, without limitation, those purchase orders on which these terms are printed or to which they are attached, and/or posted at CambriaUSA.com. These Terms and Conditions supersede all prior oral and written understandings between Buyer and Seller and, together with the identification of the products and delivery dates contained on individual purchase orders submitted by Buyer, contain the sole and complete contract between Buyer and Seller in respect to the products identified on the Buyer’s purchase orders. Buyer specifically rejects those provisions of any previous offer or proposal, acknowledgement, invoice, or other communication from Seller, which are additional to or different from the terms hereof. Neither Buyer’s acceptance of the products nor any other action at any time on the part of Buyer shall constitute acceptance of such additional or different terms. Seller shall be bound by all of the terms of the Purchase Order when Seller accepts any purchase order from Buyer as evidenced by any statement, act, or course of conduct which constitutes acceptance under applicable law, including failure to object in writing hereto within a reasonable time, commencement of manufacture of the products and delivery of the products. By acceptance hereof, Seller expressly agrees that no collateral contracts, terms, conditions, warranties, or undertakings exist between Buyer and Seller.
2. Purchase Price and Terms of Payment
a. Price. The price for the products is as indicated on Buyer’s individual purchase orders (the “Purchase Order(s)”). Seller shall not bill Buyer at prices higher than those stated on the Purchase Order unless otherwise expressly agreed by Buyer in writing dated after the date of the Purchase Order. If no price is shown, Buyer’s authorized agent must be notified of the price and must accept such price in writing before Seller commences filling the order. Seller agrees that any price reduction made with respect to products covered by the Purchase Order subsequent to its placement, but prior to payment, will be applicable to the Purchase Order.
b. Payment Terms. Unless otherwise agreed to in writing between the parties, payment of the purchase price for the ordered products or services shall be that invoices go up for payment review on the 25th of the month following the receipt of the good or service. If progress payments are agreed to in writing by the Buyer and Seller, Seller hereby grants Buyer a security interest in all products subject to the progress payments.
c. Shipping, Insurance, and Taxes. Unless otherwise specified on the Purchase Order, the price stated includes all charges for packing, hauling, storage, and transportation (i) FOB Buyer’s location specified on the Purchase Order, if such shipment commences in the United States, or (ii) FCA (as such term is defined in Incoterms 2000, published by the International Chamber of Commerce) Buyer’s location specified on the Purchase Order if the shipment commences outside of the United States. Except as otherwise required by federal or state laws, Seller agrees to pay any tariffs; any federal, state, or local tax; or use tax, which may be imposed upon the products ordered herein. All taxes applicable to Buyer and paid by Seller must be included in and shown separately on the invoice issued to Buyer.
3. Security for Rejected Products/Progress Payments
Seller hereby grants Buyer a security interest in any of the products which Buyer rightfully rejects, or with respect to which Buyer rightfully revoked acceptance, to secure payment by Seller of any portion of the purchase price with respect to such products paid by Buyer and any damages suffered or losses incurred by Buyer arising out of or relating to the defect or nonconformity giving rise to such rejection or revocation. If progress payments are agreed to in writing by Buyer and Seller, Seller hereby grants Buyer a security interest in all products subject to the progress payments.
4. Shipment and Delivery Terms
a. Shipment. Seller will package the products for domestic or international shipment, as the case may be, in accordance with Buyer’s instructions, if so given, or if not given, with standard commercial practices and in a manner which will minimize risk of damage in transit. Invoices, packing slips, and containers must bear the purchase order number, stock number, vendor lot number, and description of item, together with shipping quantity, in a clearly visible position. Invoices and packing slips must be marked “complete” when final shipment is involved. Buyer shall have the right at any time to specify the carrier or method of transportation, and agrees, unless necessitated through fault of Seller, to compensate Seller for the excess cost of any specified transportation over the transportation cost for shipment in the manner specified in the Purchase Order. Buyer shall also have the right to require special, express, or air shipments if Seller fails or will fail to meet the delivery requirements of the Purchase Order. Seller shall pay for any resulting additional transportation costs, unless due solely to causes beyond the control and without the fault or negligence of Seller. Products must be shipped to assure arrival at "“ship to” point free of damage. Seller shall be responsible for all damage during shipment or at any other time prior to Buyer’s receipt of the products. Seller shall make any claims it may have directly against the carrier.
b. Title to Products, Risk of Loss. Notwithstanding anything in the Purchase Order to the contrary, title to and risk of loss of the products shall pass to Buyer only upon receipt of the same by Buyer, and any rightful rejection or revocation of any products by Buyer shall immediately shift the risk of loss of such products, wherever located, to Seller. Seller agrees that any contrary provisions of Section 2-509 and 2-510 of the Uniform Commercial Code shall not apply to the Purchase Order. No charges will be allowed for boxing, containers, or cartage unless agreed upon in writing or set forth specifically on the front hereof.
c. Delivery Schedule. Deliveries must be made in a manner to ensure receipt by Buyer at the times specified herein unless Buyer is promptly notified and agrees in writing to alternate dates. If Seller is unable to meet the specified delivery dates, Seller must notify Buyer immediately in writing. Any late delivery is subject to a daily monetary penalty which may be offset by the Buyer against any amounts owed to Seller, at Buyer’s option. If Seller indicates that any delivery of the products is going to be more than seven (7) days later than the delivery date specified by Buyer, Buyer shall have the option to: (1) cancel the order without penalty or any liability to Seller; or (2) agree in writing to a change in the specified delivery date. If Seller delivers any product more than seven (7) days later than the delivery date specified by Buyer and such change of delivery date was not approved in writing by Buyer, Buyer shall have the right to reject the products and return them to Seller, at Seller’s cost, in addition to such other rights and remedies provided by law. In the event Buyer cancels a product order after receipt of notification from Seller or Seller delivers the product more than seven (7) days after the specified delivery date without prior approval of Buyer, Seller agrees to pay whatever additional cost, expense, loss, or damage Buyer sustains as a result of the cancellation or late delivery, including, without limitation, lost sales, lost profits, and any incidental and consequential damages, unless the delay is due to unforeseeable causes beyond the control and without the fault or negligence of Seller.
5. Inspection and Acceptance
a. Inspection. Seller shall provide and maintain an adequate inspection system covering the supplies, processing methods, special tooling, materials, workmanship, and finished products ordered hereunder. Seller shall make its inspection records of all work and materials and finished products available to Buyer during the performance of the Purchase Order and for such longer period as may be necessary. Buyer shall have the reasonable right and opportunity to inspect and test all supplies, processing methods, special tooling, materials, workmanship, and finished products ordered hereunder to the extent practicable at all times and places including at the places and during the periods of manufacture.
b. Acceptance. Buyer shall not be deemed to have accepted any products until the expiration of a reasonable period of time for inspection after receipt, which period of time shall not be less than two (2) months. The parties acknowledge and agree that the Buyer may inspect any commercial lot of products consisting of numerous units of the same product by inspecting only a reasonable sample of such units and that Buyer may revoke acceptance of any other units of such commercial lot which Buyer at a later time discovers to be defective. Payment for products prior to inspection shall not constitute acceptance thereof.
c. Cancellation or Modification of Order. Buyer shall have the right to cancel any future delivery of product under the Purchase Order or modify the Purchase Order for any reason upon delivery of thirty (30) days’ advance written notice to Seller.
Seller expressly warrants that all the products delivered by Seller pursuant to the Purchase Order (i) will conform to the specifications, drawings, artwork, designs, or other descriptions (collectively, the “Specifications”) furnished by Buyer and/or referenced on the Purchase Order; (ii) will conform with any samples provided by Buyer; and (iii) will be merchantable, of good quality, and free from defects in materials and workmanship. Seller expressly warrants that all the products will be fit and sufficient for the purpose intended. Buyer reserves the right at any time to make changes in Specifications as to any products covered by the Purchase Order. Any difference in price or time for performance resulting from such changes shall be equitably adjusted, and the Purchase Order shall be modified in writing accordingly.
7. Indemnification and Insurance
Seller agrees to indemnify and hold Buyer harmless from and against all liabilities, claims, demands, damages, costs, and expenses (including, without limitation, reasonable attorneys’ fees and expenses) for any and all injuries or damages to any person or property arising out of or related to a breach of any term or condition of the Purchase Order by Seller, its servants, employees, agents, or representatives, including, without limitation, any breach of any express warranty provided in Section 6 herein or of any warranty provided or implied by law. Seller must maintain product liability insurance in an amount not less than two million dollars ($2,000,000) per occurrence with terms and with an insurance agency reasonably approved by Buyer, which approval shall not be unreasonably withheld. Seller shall provide a certificate evidencing such insurance at Buyer’s request, which certificate shall name Buyer as an additional insured and shall provide that the insurance may not be cancelled, modified, or not renewed without at least thirty (30) days prior written notice to Buyer.
8. Events of Default
Seller shall be deemed to be in default hereunder if it violates any of the terms hereof, if it fails timely to perform any of its covenants, duties, or obligations hereunder, or if it performs or fails to perform any other act, whether pursuant to agreement or otherwise, which gives Buyer reasonable grounds to feel insecure with respect to Seller’s future performance hereunder. Seller further shall be deemed to be in default hereunder upon the occurrence of any of the following events, or of any other comparable event: (a) insolvency of Seller; (b) filing by Seller of a voluntary petition in bankruptcy; (c) the filing of any involuntary petition to have Seller declared bankrupt provided such filing is not vacated within thirty (30) days from the date of filing; (d) the appointment of a receiver or trustee for Seller provided such appointment is not vacated within (30) days from the date of such appointment; or (e) the execution by Seller of an assignment for the benefit of creditors.
9. Buyer’s Remedies Upon Seller’s Default
Upon the occurrence of any event of default by Seller as defined in Section 8 above, Buyer may exercise any and all of the following rights and remedies, in addition to such other rights and remedies as may be provided hereunder or by operation of applicable law: (a) reject or revoke acceptance of any or all of the products, whether or not such products are defective and whether or not the condition or delivery thereof otherwise relates to, pertains to, concerns, or gives rise to such event of default; and (b) terminate the Purchase Order without obligation or liability whatsoever with respect to products not yet delivered to Buyer at the time of such termination. Buyer’s decision to pursue any one such remedy shall not be deemed to be an election not to pursue any other remedy at the same time or any other time.
10. General Provisions
a. Assignment/Binding Nature. Seller shall not delegate any of its duties or assign any of its rights under the Purchase Order to any third party unless Buyer has specifically consented to such delegation or assignment in writing. Seller shall have the right to use outside vendors to secure parts or materials or services necessary to manufacture the products and such vendors are normally utilized in its business. This Agreement shall be binding upon Buyer’s successors and assigns and upon Seller’s successors and assigns approved by Buyer as provided above.
b. Modification and Waiver. No purported amendment, modification, or waiver of any provision hereof shall be binding unless set forth in writing signed by an officer of Buyer. Any waiver shall be limited to the circumstance or event specifically referenced in the written waiver document and shall not be deemed a waiver of any other term of this Agreement or of the same circumstance or event upon any recurrence thereof. The failure of Buyer to enforce any provision of this Agreement at any time shall not be construed to be a waiver of such provision nor of the right of Buyer thereafter to enforce such provision.
c. Severability. If any provision hereof is held to be unenforceable by final order of any court of competent jurisdiction, such provision shall be severed from the Purchase Order and shall not affect the interpretation or enforceability of the remaining provisions hereof.
d. Notices. All notices required or permitted to be given hereunder shall be in writing in the English language and shall be deemed to have been duly delivered (i) when received, if hand delivered, (ii) the next business day if placed with a reputable overnight carrier for delivery during the morning of the following business day, or (iii) three (3) days after deposit in the US mails for delivery by certified or registered mail, return receipt requested, postage prepaid, and addressed to the appropriate party at the addresses set forth on the first page hereof. However, if the notice is being sent to or from a party located outside of the United States of America, such notices shall be deemed to be duly delivered (i) when received, if hand delivered, (ii) three (3) business days if placed with a reputable overnight international carrier for immediate delivery, or (iii) ten (10) days after deposit in the mails for registered, airmail delivery, return receipt requested, postage prepaid, and addressed to the appropriate party at the addresses set forth on the first page hereof. All notices to Buyer shall be delivered to the attention of the President. Addresses may be changed by giving written notice to the other party pursuant to the terms of this paragraph, but any such change shall not be effective until actually received.
e. Applicable Law and Jurisdiction. This Agreement shall be interpreted and governed by the laws of the State of Minnesota, USA, without application of its conflict of law provisions. The U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Any and all disputes relating to this Agreement, its interpretation, execution, enforcement or arising from the dealings between Buyer and Seller, or among Buyer, Seller, and/or customers of the products or other third parties relating to the products, shall be dealt with under the exclusive jurisdiction and venue of the state and federal courts located in the State of Minnesota, to the exclusion of all other courts. Each party expressly agrees to submit to the jurisdiction of such courts.