Terms & Conditions of purchase
JERHEN INDUSTRIES, INC. ("JERHEN")
1. ACCEPTANCE - ENTIRE AGREEMENT
Acceptance of a Jerhen Purchase Order by acknowledgment, shipment, or other performance shall be unqualified, unconditional, and subject to and expressly limited to the terms and conditions referenced in such Purchase Order and set forth herein. All previous offers by Seller are hereby rejected. Notification is hereby given that Jerhen shall not be bound by terms additional to or different from those referenced in Jerhen’s Purchase Order and set forth herein that may appear in Seller’s quotations, acknowledgments, invoices, or in any other communications from Seller, unless such terms are expressly agreed to in a writing signed by Jerhen. Upon acceptance, the terms and conditions referenced in Jerhen’s Purchase Order and contained herein and all terms of the Uniform Commercial Code providing any protection for the Buyer, including, without limitation, all expenses and implied warranty protection and all Buyer’s remedies, shall constitute the entire agreement (the “Agreement”) between the parties with respect to the subject matter of the Agreement, superseding all contemporaneous oral agreements and all prior oral and written quotations, communications, agreements, and understandings of the parties and may not be modified or rescinded except by a writing signed by Seller and Jerhen. All references in the terms and conditions to work, services, material, equipment, products, software, or information furnished under, in performance of, pursuant to, or in contemplation of the Agreement shall also apply to any orders pursuant to the Agreement (herein referred to as the “Product” or “Products”). As used herein, the term “Jerhen” shall mean Jerhen Industries, Inc., as well as its affiliates and each of their officers, directors, employees, successors, and assigns.
2. ASSIGNMENT AND SUBCONTRACTING
Seller shall not assign any right under the Agreement (except for monies due or to become due) or delegate or subcontract any obligation to be performed or owed under the Agreement without the prior written consent of Jerhen. Any assignment of monies shall be void and ineffective to the extent that (1) Seller shall not have given Jerhen at least thirty (30) days prior written notice of such assignment or (2) such assignment attempts to impose upon Jerhen’s obligations to the assignee additional to the payment of such monies or to preclude Jerhen from dealing solely and directly with Seller in all matters pertaining to the Agreement including the negotiation of amendments or settlements of charges due. All obligations related to Products performed by Seller’s subcontractor(s) at any tier shall be deemed obligations performed by Seller.
3. HEAVY METALS IN PACKAGING
Seller warrants to Jerhen that no chlorofluorocarbons, lead, cadmium, mercury, or hexavalent chromium are contained in any packaging component (as defined under applicable laws) to be provided to Jerhen under the Agreement. Seller further warrants to Jerhen that the sum of the concentration levels of chlorofluorocarbon, lead, cadmium, mercury, and hexavalent chromium in the package or packaging components provided to Jerhen under the Agreement does not exceed 100 parts per million. Upon request, Seller shall provide to Jerhen certificates of compliance certifying that the packaging and/or packaging components provided under the Agreement are in compliance with the requirements set forth above in this clause. Seller shall indemnify, defend, and hold Jerhen harmless for any liability, fine, or penalty incurred by Jerhen to any third party or governmental agency arising out of Jerhen’s good faith reliance upon these warranties or any certificates of compliance.
4. SUBSTANCES LABELING
Seller warrants and certifies that all Products (including packaging and packaging components), provided to Jerhen under the Agreement, have been accurately labeled.
5. CHOICE OF LAW
The Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Illinois without regard to its principles of conflicts of law. The parties hereby irrevocably consent to the exclusive personal jurisdiction of the federal court located in Illinois or, if such court lacks subject matter jurisdiction, to the jurisdiction of the applicable state court of the State of Illinois in Winnebago County, for all purposes in connection with the Agreement. The parties hereby expressly waive any and all claims and defenses either may have in respect of any proceeding in any such court based on alleged lack of personal jurisdiction, improper venue, inconvenient forum, or any similar defense, to the maximum extent permitted by law.
6. COMPLIANCE WITH LAWS
Seller and all persons furnished by Seller shall comply at their own expense with all applicable federal, state, local and foreign laws, ordinances, regulations and codes, including the identification and procurement of required permits, certificates, licenses, insurance, approvals, and inspections in performance under the Agreement. Seller agrees to indemnify, defend, and hold harmless Jerhen, its affiliates, its and their customers and each of their officers, directors and employees from and against any losses, damages, claims, demands, suits, liabilities, fines, penalties and expenses (including reasonable attorneys’ fees) that arise out of or result from any failure to do so.
7. FORCE MAJEURE
Neither party shall be held responsible for any delay or failure in performance of any part of the Agreement to the extent such delay or failure is caused by fire, flood, explosion, war, strike, embargo, government requirement, civil or military authority, act of God, pandemic-related illnesses causing slow down or closures of a party (including, without limitation, COVID-19), or other similar causes beyond its control and without the fault or negligence of the delayed or nonperforming party or its subcontractors (“force majeure conditions”). Notwithstanding the foregoing, Seller’s liability for loss or damage to Jerhen’s material in Seller’s possession or control shall not be modified by this clause. If any force majeure condition occurs, the party delayed or unable to perform shall give immediate notice to the other party, stating the nature of the force majeure condition and any action being taken to avoid or minimize its effect. The party affected by the delayer’s inability to perform may elect to: (1) suspend performance for the duration of the force majeure condition and (i) at its option buy, sell, obtain, or furnish material or services elsewhere to be bought, sold, obtained, or furnished under the Agreement of an order (unless such sale or furnishing is prohibited under the Agreement) and deduct from any commitment the quantity bought, sold, obtained, or furnished or for which commitments have been made elsewhere and (ii) once the force majeure condition ceases, resume performance under the Agreement or order with an option in the affected party to extend the period of the Agreement or an order up to the length of time the force majeure condition endured; and/or (2) when the delay or nonperformance continues for a period of at least fifteen (15) days, terminate at no charge, the Agreement or an order or the part of it relating to material not already shipped or services not already performed. Unless written notice is given within forty-five (45) days after the affected party is notified of the force majeure condition, (1) shall be deemed selected.
Seller shall not, without Jerhen’s prior written consent, engage in advertising, promotion, or publicity related to the order or make public use of any Identification in any circumstances related to the order. “Identification” means any copy or resemblance of any trade name, trademark, service mark, insignia, symbol, logo, or any other Product, or organization, designation, or any specification or drawing of Jerhen or its affiliates or evidence of inspection by or for any part of them. Seller shall remove or obliterate any Identification prior to any use or disposition of any material rejected or not purchased by Jerhen and shall indemnify, defend, and hold harmless Jerhen and its affiliates and each of their officers, directors, and employees from and against any losses, damages, claims, demands, suits, liabilities, fines, penalties, and expenses (including reasonable attorneys’ fees) arising out of Seller’s failure to so remove or obliterate.
Seller shall not implead or bring an action against Jerhen or its customers or the employees of either based on any claim by any person for personal injury or death to an employee of Jerhen or its customers occurring in the course or scope of employment and that arises out of Product furnished hereunder.
Seller shall indemnify, defend, and hold harmless Jerhen from and against any losses, damages, liabilities, fines, penalties, and expenses (including reasonable attorneys’ fees) that arise out of or result from any proved or unproved claim (1) of infringement of any patent, copyright, trademark, or trade secret right, or other intellectual property right, private right, or any other proprietary or personal interest and (2) related by circumstances to the existence hereof or performance under or in contemplation of it. If the infringement claim arises solely from Seller’s adherence to Jerhen’s written instructions regarding Product or tangible or intangible goods provided by Seller (“Items”) and if the Items are not (1) commercial items available on the open market or the same as such items or (2) items of Seller’s designated origin, design or selection, Jerhen shall indemnify Seller. Jerhen or Seller (at Jerhen’s request) shall defend or settle, at its own expense, any demand, action or suit on any Infringement Claim for which it is the Indemnitor under the preceding provisions and each shall timely notify the other of any assertion against it of any infringement claim and shall cooperate in good faith with the other to facilitate the defense of any such claim.
11. PAYMENT TERMS
Unless payment terms more favorable to Jerhen appear on Seller’s invoice and Jerhen elects to pay on such terms, invoices shall be paid in accordance with the terms stated in Jerhen’s offer to purchase or otherwise in the Agreement; and if no such terms are stated, then all invoices shall be paid by Jerhen on net sixty (60) days from complete receipt. Due dates for payment of invoices shall be computed from the date of receipt of invoices by Jerhen.
12. PRODUCT CONFORMANCE REVIEWS
(1) All material is subject to a Product Conformance Review (“Review”) prior to shipment. Seller shall notify Jerhen when material is ready for such Review.
(2) Seller may ship material without a Review, but Jerhen may perform such Review prior to shipment by giving Seller notice to that effect, in which event Seller shall notify Jerhen when material is ready for such Review. (3) Seller will provide without charge any production testing facilities and personnel required to perform or assist in the Review as specified in the applicable Quality Program Specification or the quality specification provided under the Agreement or order. Jerhen’s Review as set forth herein may only be waived by written notification from Jerhen’s organization.
13. RELEASES VOID
Neither party shall require (1) waivers or releases of any personal rights or (2) execution of documents which conflict with the terms of the Agreement from employees, representatives, or customers of the other in connection with visits to its premises and both parties agree that no such releases, waivers or documents shall be pleaded by them or third persons in any action or proceeding.
Seller shall: (1) ship the Product covered by the Agreement or order complete unless instructed otherwise; (2) ship to the destination designated in the Agreement or order; (3) ship according to routing instructions given by Jerhen; (4) place the Agreement and order number on all subordinate documents; (5) enclose a packing memorandum with each shipment and, when more than one package is shipped, identify the package containing the memorandum; and (6) mark the Agreement number and order number on all packages and shipping papers. Adequate prospective packing shall be furnished at no additional charge. Shipping and routing instructions may be furnished or altered by Jerhen without writing. If Seller does not comply with the terms of the FOB clause of the Agreement or order or with Jerhen’s shipping or routing instructions, Seller authorizes Jerhen to deduct from any invoice of Seller (or to charge back to Seller) any increased cost incurred by Jerhen as a result of Seller’s noncompliance.
15. SURVIVAL OF OBLIGATIONS
The obligations of the parities under the Agreement, which by their nature would continue beyond the termination, cancellation, or expiration of the Agreement, including, by way of illustration only and not by limitation, those in the clauses COMPLIANCE WITH LAWS, IDENTIFICATION, IMPLEADER, INFRINGEMENT, RELEASES VOID. USE OF INFORMATION and WARRANTY (and INSURANCE and INDEMNITY if included in the Agreement), shall survive termination, cancellation, or expiration of the Agreement.
16. TITLE AND RISK OF LOSS
Title and risk of loss and damage to Product purchased by Jerhen under the Agreement shall vest in Jerhen when the Product has been delivered at the FOB point. If the Agreement or order issued pursuant to the Agreement calls for additional services including, but not limited to, unloading, installation, or testing, to be performed after delivery, Seller shall retain title and risk of loss and damage to the Product until the additional services have been performed. Notwithstanding the foregoing sentence, if Seller is expressly authorized to invoice Jerhen for Product upon shipment or prior to the performance of additional services, title to such Product shall vest in Jerhen upon payment of the invoice but risk of loss and damage shall pass to Jerhen as provided in the foregoing sentence.
17. USE OF INFORMATION
Seller shall view as Jerhen’s property any idea, data, program, technical information, business information or other intangible information, however conveyed, and any document, print, tape, disc, tool, or other tangible information-conveying or performance-aiding article owned or controlled by Jerhen and provided to, or acquired by, Seller under or in contemplation of the Agreement (Information). Seller shall, at no charge to Jerhen and as Jerhen directs, destroy or surrender to Jerhen promptly at its request any such article or any copy of such Information. Seller shall keep Information confidential and use it only in performing under the Agreement and obligate its employees, subcontractors and others working for it to do so, provided that the foregoing shall not apply to Information previously known to Seller free of obligation or made public through no fault imputable to Seller.
The failure of either party at any time to enforce any right or remedy available to it under the Agreement or otherwise with respect to any breach or failure by the other party shall not be construed to be a waiver of such right or remedy with respect to any other breach or failure by the other party.
Seller warrants to Jerhen and its customers that all Products furnished will be new, merchantable, free from defects in design, material and workmanship and will conform to and perform in accordance with the specifications, drawings, and samples; will comply with all federal, state, and local laws, rules, and regulations applicable thereto. Jerhen’s approval of Seller’s drawings shall not relieve Seller of any of its warranties. These warranties extend to the future performance of the material and shall continue for the longer of (1) the warranty period applicable to Jerhen’s sales to its customers of the material or of Products which incorporate the material, (2) two years after the Product is discovered by Jerhen, or (3) such greater period as may be specified elsewhere herein. Seller also warrants to Jerhen and its customers that services will be performed in a workmanlike manner. In addition, if Product furnished contains one or more manufacturers’ warranties, Seller hereby assigns such warranties to Jerhen and its customers. All warranties shall survive inspection, acceptance, and payment. Product or services not meeting the warranties will be at Jerhen’s option, returned for or subject to refund, repair, replacement, or re-performance by Seller at no cost to Jerhen or its customers and with transportation costs and risk of loss and damage in transit borne by Seller. Repaired and replacement Product shall be warranted as set forth above in this clause. All services provided by Seller shall be performed in a good and workmanlike manner.
Jerhen may at any time require additions to or deductions or deviations (all hereinafter referred to as a “Change”) from the Product called for by the specifications, drawings, and samples. No charge shall be considered as an addition or alteration to or deduction or deviation from the Product called for by the specifications, drawings, and samples nor shall Seller be entitled to any compensation for work done pursuant to or in contemplation of a Change, unless made pursuant to a written Change order issued by Jerhen within ten (10) days after a request for a Change. Seller shall submit a proposal to Jerhen which includes any increases or decreases in Seller’s cost or changes in the delivery or Product schedule necessitated by the Change. Jerhen shall, within ten (10) days of receipt of the proposal, either (1) accept the proposal, which event Jerhen shall issue a written Change order directing Seller to perform the Change or (2) advise Seller not to perform the Change in which event Seller shall proceed with the original Product called for.
All persons furnished by Seller shall be considered solely Seller’s employees or agents, and Seller shall be responsible for payment of all unemployment, social security, and other payroll taxes, including contributions when required by law. Seller agrees to indemnify, defend, and hold harmless Jerhen from and against any losses, damages, claims, demands, suits, liabilities, fines, penalties and expenses (including reasonable attorneys’ fees) that arise out of or result from: (1) injuries or death to persons or damage to property, including theft, any way arising out of or occasioned by, caused or alleged to have been caused by or on account of the performance of Product or services performed by Seller or persons furnished by Seller; (2) assertions under Workers’ Compensation or similar acts made by persons furnished by Seller or by any subcontractor or by reason of any injuries to such persons for which Jerhen would be responsible under Workers’ Compensation or similar acts if the persons were employed by Jerhen; or (3) any failure on the part of Seller to satisfy all claims for labor, equipment materials and other obligations relating directly or indirectly to the performance of the Product, or any failure by Seller to perform Seller’s obligations under this clause or the INSURANCE clause. Seller agrees to defend Jerhen, at Jerhen’s request, against any such claim, demand or suit. Jerhen agrees to notify Seller, within a reasonable time, of any written claims or demands against Jerhen for which Seller is responsible under this clause.
Jerhen’s Representatives shall at all times have access to the Product for the purpose of inspection or Review, and Seller shall provide safe and proper facilities for such purpose.
Seller shall maintain and cause Seller’s subcontractors to maintain during the term of the Agreement: (1) Workers Compensation insurance as prescribed by the law of the state or action in which the Product is performed; (2) employer’s liability insurance with limits of at least $1,000,000 for each occurrence; (3) comprehensive automobile liability insurance if the use of motor vehicles is required, with limits of at least $1,000,000 combined single limit for bodily injury and property damage for each occurrence; (4) Commercial General Liability (“CGL”) insurance, including Blanket Commercial Liability and Broad Form Property Damage, with limits of at least $1,000,00 combined single limit for bodily injury and property damage for each occurrence; and (5) if the furnishing to Jerhen (by sale or otherwise) of Products or material is involved, CGL insurance endorsed to include products liability and completed operations coverage in the amount of $5,000,000 for each occurrence. All CGL and automobile liability insurance shall designate Jerhen as an additional named insured. All such insurance must be primary and required to respond and pay prior to any other available coverage. Seller agrees that Seller, Seller’s insurer(s) and anyone claiming by, through, under or in Seller’s behalf shall have no claim, right of action or right of subornation against Jerhen and its customers based on any loss or liability insured against under the foregoing insurance. Seller and Seller’s subcontractors shall furnish, prior to the start of Product, certificates or adequate proof of the foregoing insurance including, if specifically requested by Jerhen, copies of the endorsements and insurance policies. Jerhen shall be notified in writing at least thirty (30) days prior to cancellation of or any change in the policy.
Seller’s invoices shall be rendered upon completion of the Product or at other times expressly provided for in the order and shall be payable when the Product has been performed to the satisfaction of Jerhen. Seller shall mail invoices with copies of any supporting documentation required by Jerhen to the address shown on the order. The Product shall be delivered free from all claims, liens, and charges whatsoever. Jerhen reserves the right to require, before making payment, proof that all parties furnishing labor and materials for the Product have been paid.
25. TOOLS AND EQUIPMENT
Unless otherwise specifically provided in the Agreement, Seller shall provide all labor, tools, and equipment (the “Tools”) for performance of the Product. Should Seller actually use any Tools owned or rented by Jerhen or its customer, Seller acknowledges that Seller accepts the Tools “as is, where is,” that neither Jerhen nor its customer have any responsibility of the condition or state of repair of the Tools and that Seller shall have risk of loss and damage to such Tools. Seller agrees not to remove the Tools from Jerhen’s or its customer’s premises and to return the Tools to Jerhen or its customer upon completion of use or at such earlier time as Jerhen or its customer may request in the same condition as when received by Seller, reasonable wear and tear accepted.
26. WORK DONE BY OTHERS
If any of the Product is dependent on work done by others, Seller shall inspect and promptly report to Jerhen’s representative any defect that renders such other work unsuitable for Seller’s proper performance. Seller’s silence shall constitute approval of such work as fit and suitable for Seller’s performance.
27. BANKRUPTCY AND TERMINATION FOR FINANCIAL INSECURITY
Either party may terminate the Agreement by notice in writing: (1) If the other party makes an assignment for the benefit of creditors (other than solely an assignment of moneys due) or (2) If the other party evidences an inability to pay debts as they become due, unless adequate assurance of such ability to pay is provided within fourteen (14) days of such notice.
28. DEFAULT, TERMINATION, AND CANCELLATION
Jerhen may terminate the order for its convenience or cancel the order for Seller’s default, in whole or in part, at any time upon Jerhen’s written notification to the Seller, as follows:
At Jerhen’s Convenience. Jerhen’s liability shall not exceed the cost of the existing “finished goods” inventory. Such inventory shall not be greater than that required to fulfill the next delivery schedule within thirty (30) days following the date of termination. The existing “work-in-process” inventories required to fulfill an additional thirty (30) days of deliveries shall also be included. In no event shall Jerhen have any liability for inventories in either category which are readily unable or resalable.
(1) “Finished goods” shall mean Products that have passed final acceptance test and are waiting to be delivered. (2) “Work-in-process” shall mean Products in varying stages of completion with some degree of labor applied and/or individual piece parts and/or raw materials in a stage of completion no more than is necessary to meet delivery schedules.
For Seller’s Default. In the event (1) Seller fails to deliver the Product within the time specified in the order, (2) Seller fails to comply with any other provision of the order and such failure to deliver or noncompliance has not been cured by Seller within then ten (10) days after written notice from Jerhen to do so, or (3) Seller becomes the subject of any proceeding under state or federal law for the relief of debtors or otherwise becomes insolvent or bankrupt or makes an assignment for the benefit of creditors, then Jerhen may terminate the order for default. In such event, Jerhen shall have all rights and remedies provided in the order and at law or in equity, and Jerhen shall be entitled to an award of its costs and reasonable attorneys’ fees incurred in enforcing the terms hereof. Jerhen reserves the right to arrange for completion of performance by the purchase of substitute Products elsewhere and charge Seller with all loss and damage incurred.
30. CANCELLATIONS FOR CAUSE
Seller’s failure to deliver conforming Product in performance of, pursuant to, or in contemplation of the Agreement or in Warranty repair within the time specified in the Agreement or such order, shall give Jerhen, the right at any time to cancel the Agreement or any orders, placed pursuant hereto, in whole or in part. All obligations hereunder on Seller’s part incurred prior to the cancellation or termination of the Agreement or the cancellation or termination of any order hereunder by Jerhen shall survive such termination. Termination of orders or the Agreement pursuant to this Clause shall not require judicial intervention to be effective.
In the event of termination or cancellation for any reason, Jerhen may notify the Seller that all right, title, and interest in and to all or any portion of Products acquired by the Seller for the performance of the order, work-in-process or completed Products specified in such notice shall pass immediately to Jerhen. Jerhen shall have the right to enter upon the premises where such Product is located and take possession thereof.
31. DELIVERY NOTICE
Seller shall notify Jerhen by teleprinter or telefax of an impending shipment prior to actual shipment. On the day of actual shipment, Seller shall confirm shipment by such means, stating the carrier’s name, the way-bill number, number of pieces, weight (by piece and total), progressive bill number, destination, etc.
32. ENTIRE AGREEMENT
The Agreement shall incorporate the typed or written provisions on Jerhen’s orders issued pursuant to the Agreement and shall constitute the entire agreement between the parties with respect to the subject matter of the Agreement and the order(s) and shall not be modified or rescinded, except by a writing signed by Seller and Jerhen. All references in the terms and conditions to the Agreement or to Product furnished under, in performance of, pursuant to, or in contemplation of, the Agreement shall also apply to any orders issued pursuant to the Agreement. All provisions on Seller’s forms shall be deemed deleted. Additional or different terms inserted in the Agreement by Seller, or deletions thereto, whether by alterations, addenda, or otherwise, shall be of no force and effect, unless expressly consented to by Jerhen in writing. Estimates or forecasts furnished by Jerhen shall not constitute commitments. The provisions of the Agreement supersede all contemporaneous oral agreements and all prior oral and written quotations, communications, agreements, and understandings of the parties with respect to the subject matter of the Agreement.
33. LIENS AND ENCUMBRANCES
Seller agrees to pay the bills of its Sellers promptly and to comply with Jerhen’s reasonable requests for evidence of payment. Seller agrees to protect the interest of Jerhen by not permitting any attachment to the Product furnished under, in performance of, pursuant to, or in contemplation of, the Agreement or to the real estate owned or leased by Jerhen or liens, encumbrances or claims for labor or material and to indemnify, defend, and hold Jerhen harmless from all such claims, liens and encumbrances growing out of the design, manufacture, assembly, transit and installation of the Product furnished under, in performance of, pursuant to, or in contemplation of, the Agreement.
34. SHIP DATE
The date by which the Product furnished under, in performance of, pursuant to, or in contemplation of, the Agreement shall be completely loaded on board the carrier at Sellers facility, suitable packed, crated, and braced for carriage by the transportation mode being used and shall be no later than that reflected on Jerhen’s offer to purchase.
35. TIMELY PERFORMANCE
If Seller has knowledge that anything prevents or threatens to prevent the timely performance of the Product under the Agreement, Seller shall immediately notify Jerhen’s representative thereof and include all relevant information concerning the delay or potential delay.
These Terms and Conditions of Purchase may be modified at any time by Jerhen Industries, Inc.