GENERAL TERMS AND CONDITIONS FOR PURCHASE OF GOODS
WEISS NORTH AMERICA, INC.
- valid as of 10/18/2022 -
Any and all purchases made by weiss north america, inc., a delaware corporation, and/or its affiliated entities (collectively, “purchaser” or “weiss” or “company”), are subject to the following general terms and conditions (“terms and conditions”). These terms and conditions take absolute precedence and prevalence over any terms and conditions of the seller. Seller acknowledges that seller has read and understands these terms and conditions and agrees to be bound by these terms and conditions. In the event of any inconsistencies between any purchase order, purchase agreement, invoice, credit application or the like (or any document ancillary to the foregoing) and these terms and conditions, these terms and conditions shall control. Purchaser and seller expressly agree that purchaser may modify these terms and conditions from time to time, and such modifications shall be binding upon the seller as of the date of such modifications.
1. Acceptance of terms and conditions
Purchaser hereby orders from the vendor (“Seller”) identified on the Purchase Order or other proposed agreements for the sale of Goods (collectively, the “Order”) accompanying these General Terms and Conditions of Purchase (“Terms and Conditions”) the merchandise (“Goods”) and/or services (“Services”) specified in the Order, subject to and upon these Terms and Conditions. Purchaser shall not be bound by any proposed contractual provisions not appearing in these Terms and Conditions. SHIPMENT BY SELLER OF THE GOODS AND/OR PROVISION OF THE SERVICES ORDERED SHALL CONSTITUTE IRREVOCABLE ACCEPTANCE OF AND AGREEMENT TO THESE TERMS AND CONDITIONS AND AN IRREVOCABLE WAIVER BY SELLER OF ALL TERMS AND CONDITIONS CONTAINED IN ANY ACCEPTANCE FORM OF ANY OTHER COMMUNICATIONS WHICH ARE INCONSISTENT WITH THE TERMS AND CONDITIONS SET FORTH ON THE ORDER UNLESS SPECIFICALLY AGREED TO IN WRITING BY PURCHASER.
2. Prices and Payments
All prices are firm and shall not be subject to change unless evidenced by a written amendment to the Order signed by Purchaser and Seller. No charges of any kind, including, without limitation, crating, boxing, packing, or transporting to the point of delivery stated in the Order, will be allowed unless specifically agreed to in writing by Purchaser. The cost of freight (including freight insurance) is to be borne by Seller unless otherwise indicated in writing in the Order or in another writing by Purchaser. Unless otherwise specified in these Terms and Conditions or the Order or otherwise agreed in writing by Purchaser and Seller, payment by Purchaser shall be made in US Dollars and according to discount terms offered by Seller or, if not offered, within 60 days following the later date of Seller’s invoices or receipt of the Goods and/or Services hereunder. Seller shall pay all applicable sales, use, tariffs, goods and services taxes, export, import, and/or customer fees, charges and taxes, value-added or similar taxes that are incurred in connection with the sale and delivery of the Goods and/or Services from the Seller to the Purchaser.
3. Packing, Preservation and Marking
Packing, preservation and marking of the Goods shall be in accordance with Purchaser’s instruction as specified in the Order, specifications or other documents furnished by Purchaser. All material shall be suitably packed marked and shipped in accordance with the requirements of common carriers in a manner to secure lowest transportation cost, and no additional charge shall be made to the Purchaser therefor unless otherwise stated herein. Damage to any material not packed to insure proper protection shall be charged to the Seller. No charge shall be made by Seller for drayage or storage, unless otherwise stated in the Order, specification, or other writing signed by Purchaser. Unless otherwise specified herein, Seller shall properly mark each package with Purchaser’s order number, and where multiple packages comprise a single shipment each package shall also be consecutively numbered. Purchase order number and package numbers shall be shown on packing slips, bills of lading and invoices. Packing slips and Material Safety Data Sheets must accompany each shipment. Original bill of lading, or other shipping receipt, for each shipment shall be promptly forwarded by Seller in accordance with instructions issued by the Purchaser. Seller agrees to describe material on bill of lading or other shipping receipt and to route shipment in accordance with instructions issued by Purchaser’s authorized representative. Invoices, in triplicate, all copies priced and extended, shall be forwarded within twenty-four (24) hours after each shipment and also shall be transmitted electronically.
(a) Time is of the essence in the fulfillment by Seller of the Order. If Seller fails to deliver the Goods or to complete the Services to be furnished hereunder in quantities and in times specified in schedules furnished by Purchaser, Purchaser shall be entitled, in addition to any other remedy available at law or in equity, to cancel the Order with respect to all or any undelivered part or installment of the Goods or Services. Unless otherwise specified in the Order, all expenses and risks with respect to the Goods and/or Services are for Seller’s sole account until such Goods and/or Services are delivered to or performed for Purchaser at the destination shown on the Order and title of the Goods shall pass to Purchaser upon the delivery hereunder. Goods delivered to Purchaser in advance of the delivery date specified on the Order may be returned to Seller at Seller’s expense.
(b) Unless otherwise provided in the Order, the Goods may not be delivered in installments. If the Order provides for delivery in installments, or if Purchaser agrees in writing to accept delivery in installments, and Seller defaults in making timely delivery of any such installment or breaches any other term or condition hereof, Purchaser may, at its option, by giving written notice to Seller of its election so to do, cancel the Order or any undelivered portion thereof and avail itself of its rights described in the preceding paragraph. Purchaser shall have no liability for payment for material or items delivered to Purchaser which are in excess of quantities specified in the delivery schedules. Purchaser may from time to time, upon notice to Seller, change delivery schedules or direct temporary suspension of scheduled shipments without liability of any kind.
Purchaser may at any time, in writing, make changes within the general scope of the Order. If any such change causes a material increase or decrease in the cost of, or the time required for the performance of, any work under the Order, an equitable adjustment may be requested by Seller regarding the price or delivery date on the front of the Order, or both. Any request by Seller for such adjustment hereunder must be asserted in writing within 10 days from the date of receipt by Seller of notification of such change from Purchaser, setting forth with reasonable particularity the reasons for an adjustment in price or delivery schedule, and such adjustment shall not become effective until the execution by Purchaser and Seller of an Order amendment.
All Goods and/or Services (collectively “Inspection Items”) as well as status and progress of production, shall be subject to inspection and testing by Purchaser, its agent or its customers at all times and places, including the place of manufacture. Records of all inspection work by Seller shall be kept complete and available to Purchaser during the performance of the Order and for two (2) years thereafter.
If any of the Goods and/or Services ordered hereunder are found at any time to be defective, or otherwise not in conformity with the requirements of the Order or any other specifications furnished by Purchaser, Purchaser, in addition to its other legal rights, may, at its option: (i) reject and return in whole or in part such Goods at Seller’s expense; (ii) take such actions as may be required to cure all defects and/or bring the Goods into conformity with all requirements, at Seller’s own expense, and (iii) by written notice to Seller require Seller to re-perform, at its own expense, any defective portion of the Services performed.
Seller represents and warrants that: (a) the Goods and/or Services purchased and/or provided hereunder shall (i) be free from any defects in design, workmanship or materials, (ii) strictly conform to the applicable specifications, applicable Material Safety Data Sheets, samples or other documents furnished to or by Purchaser, (iii) strictly comply with all applicable requirements of all state and federal statutes, acts, ordinances, regulations, codes and standards in existence as of the date of acceptance of the Order (including, without limitation, the standards and/or regulations promulgated under California Proposition 65, the provisions of the Occupational Safety and Health Act of 1970, as amended, and the Consumer Safety Protection Act, (iv) be merchantable, and iv) be fit for the uses for which they normally are intended and to which they normally are put; (b) it has clear title to the Goods purchased hereunder and can transfer such Goods to Purchaser without encumbrance; (c) there is no pending litigation or existing claim in any manner involving the Goods and/or Services ordered hereunder or any party’s rights to use or sell such Goods and/or Services; and (d) the sale and proper use of the Goods and/or Services ordered hereunder by Purchaser and its customers will not violate (i) any applicable law, rule or regulation, (ii) any contract, agreement or understanding to which Seller is a party or by which Seller is bound, or (iii) any third-party rights in any patent, trademark, service mark, trade name, copyright, trade secret or other intellectual property right. The foregoing warranty is in addition to, and not in limitation of, Seller’s standard product warranty; in the event of a conflict between this Paragraph 8 and Seller’s standard product warranty, this Paragraph shall control.
9. Safety Information
Seller shall supply or make available to Purchaser any and all information relating to safety conditions and procedures (including but not limited to Material Safety Data Sheets) concerning the Goods that are the subject of the Order.
Seller shall defend, indemnify and hold harmless Purchaser and/or its customers from and against any liabilities, losses, damages, costs, expenses, fees (including reasonable attorneys’ and other professional fees), suits, claims and demands of every kind based on or arising out of: (i) the breach by Seller of any of the representations, warranties, covenants and agreements contained in these Terms and Conditions and/or any Order, (ii) death or injury to any person, damage to any property or any other damage or loss including economic loss by whomsoever suffered resulting or claimed to result, in whole or in part, from any defect in or condition of the Goods, including improper manufacture or the failure of any Goods and/or Services to comply with any express or implied warranties of Seller or any of Purchaser’s specifications contained in (or made part of) the Order, (iii) the failure of the Goods, whether by reason of manufacture, packaging, labeling, export, distribution or sale, to comply with any applicable federal, state or local laws, statutes, ordinances, governmental rules, regulations or standards, or any judicial or administrative orders applicable to the Goods, and (iv) any actual or alleged infringement of any patent copyright, trademark, or any other proprietary rights arising out of the manufacture, use, sale, delivery, or disposal of the Goods furnished under an Order. This right of indemnification is in addition to any rights which Purchaser may have with respect to the Goods and/or Services as set forth elsewhere hereunder and/or in the applicable Order, at law, under warranty (express or implied), or otherwise.
Purchaser reserves the right to terminate the Order, or any part hereof, for cause and to cancel all or any part of the undelivered or unperformed portion of the Order upon written notice to Seller, and without any cost, charge or penalty to Purchaser: (i) if Seller fails to deliver the Goods or perform the Services required hereby on or before the delivery date(s) specified in the Order; (ii) if Seller breaches any of the other terms and conditions of the Order, including the warranties set forth in Paragraph 8; and/or (iii) in the event of the bankruptcy or insolvency of Seller, or the execution by Seller of any assignment for the benefit of creditors. In addition to Purchaser’s right to terminate the Order for cause as described in the preceding sentence, Purchaser shall have the right upon notice to Seller to cancel the Order or any unfilled portion thereto for convenience and without any liability other than to make payment for that portion of the Order which has been delivered and finally accepted. In such event, Seller shall immediately stop all work and observe any instruction from Purchaser as to work in progress.
12. Confidential or Proprietary Information.
Seller shall keep confidential any technical or commercial information derived from specifications and other documents furnished by Purchaser or made accessible in connection with the Order and shall not divulge, directly or indirectly, such information for the benefit of any other party without obtaining Purchaser’s prior written consent. Except as required for the efficient performance of the Order, Seller shall not use such information or make copies to be or permit copies to be made of such specifications and other documents without the prior written consent of Purchaser. Upon completion or termination of the Order, Seller shall promptly return to Purchaser all materials incorporating any such information and any copies thereof.
Seller, as part consideration for the Order and without further cost to the Purchaser, hereby grants to Purchaser an irrevocable, nonexclusive, worldwide, royalty-free right and license (with the right to sublicense) to use, sell, manufacture, and cause to be manufactured, products embodying any and all inventions and discoveries made, conceived, or actually reduced to practice in connection with the performance of the Order.
14. Assigment and Subcontracting
Seller agrees not to assign the Order or any interest therein or any payment due hereunder without the prior written consent of Purchaser. Seller shall neither subcontract nor delegate performance of all or any substantial part of the work called for under the Order without the prior written consent of Purchaser.
15. Product Liability Insurance
Seller shall at all times maintain product liability insurance and vendor’s insurance of not less than $1,000,000 per occurrence and $3,000,000 in the aggregate and, upon Purchaser’s request, shall name Purchaser as an additional insured thereunder. Upon Purchaser’s request, Seller shall provide Purchaser with a copy of a certificate evidencing that such product liability insurance coverage is in full force and effect as of the date of this Agreement. Seller further agrees that not less than thirty (30) days prior to the expiration of any such product liability insurance or vendor insurance policy, Seller will deliver to Purchaser evidence of a renewal or a new policy to take the place of the policies expiring.
16. Right of Setoff
Purchaser shall be entitled to set off, deduct, or recoup any credit, claims, or refunds to which Purchaser is entitled under any purchase order, invoice, contract, or transaction between Purchaser and Seller, against any amounts due or arising under the Order.
17. Assignment of Accounts Receivable
Seller covenants it will not assign, pledge, discount, or factor its accounts receivable or invoices arising out of sales to Purchaser or any purchase order issued by Purchaser to a third party (factor). Any assignment or attempted assignment or pledge will be null and void and of no effect.
18. Export Regulations
Seller acknowledges that certain Services and/or Goods sold by Seller hereunder and any documentation and other technology of Seller may be subject to application export control and sanction laws, regulations, and orders. Seller certifies, represents, and warrants that it is in compliance and shall take all necessary acts to remain in compliance with all applicable export and re-export control laws and regulations, including, without limitation, the Export Administration Regulations maintained by the U.S. Department of Commerce, trade and economic sanctions and regulations maintained by OFAC (defined below), and the International Traffic in Arms Regulations maintained by the U.S. Department of State. Seller hereby agrees to defend, indemnify and hold Purchaser harmless from and against any and all claims, damages, losses, risks, liabilities and expenses (including attorney’s fees and costs) arising from or related to any breach of the foregoing certification.
19. FCPA; Anti-Bribery
In carrying out its responsibilities hereunder and under any Order, Seller shall comply with all applicable anti-bribery laws including, but not limited to, the U.S. Foreign Corrupt Practices Act, as revised (“FCPA”), and the Organization for Economic Cooperation and Development Anti-Bribery Convention, as implemented in the Territory. Seller understands that the FCPA generally prohibits the promise, payment or giving of anything of value either directly or indirectly to any government official for the purpose of obtaining or retaining business or any improper advantage. For purposes of this section, “government official” means any official, officer, representative, or employee of any non-U.S. government department, agency or instrumentality (including any government-owned or controlled commercial enterprise), or any official of a public international organization or political party or candidate for political office. Seller represents and warrants that, in the performance of this Agreement and in connection with its provision and/or sale of Services and/or Goods, (i) neither it nor any of its representatives are governmental employees or officials or candidates for political office and Seller will advise Purchaser of any change in such representation; (ii) Seller and its representatives have not and will not make, offer, or agree to offer anything of value to any government official, political party, or candidate for office; (iii) Seller will comply with all provisions of the FCPA and the regulations thereunder as amended from time to time; and (iv) Seller agrees to indemnify, defend, and hold Purchaser harmless for damages and expenses resulting from a violation of the foregoing by Seller or its representatives.
Pursuant to United States Presidential Executive Order 13224 (“Executive Order”), Seller may be required to ensure that it does not transact business with persons or entities determined to have committed, or to pose a risk of committing or supporting, terrorist acts and those identified on the list of Specially Designated Nationals and Blocked Persons (“List”) generated by the Office of Foreign Assets Control (“OFAC”) of the U.S. Department of the Treasury. The names or aliases of these persons or entities (“Blocked Persons”) are updated from time to time. Seller certifies, represents and warrants to Purchaser that: (a) it is not acting, directly or indirectly, for or on behalf of any person, group, entity or nation named by any Executive Order of the United States Treasury Department as a terrorist, “Specially Designated National and Blocked Person” or any other banned or blocked person, entity, nation or transaction pursuant to any Law that is enforced or administered by the Office of Foreign Assets Control; and (b) it is not engaged in this transaction, directly or indirectly on behalf of, or instigating or facilitating this transaction, directly or indirectly on behalf of, any such person, group, entity or nation. Seller hereby agrees to defend, indemnify and hold Purchaser harmless from and against any and all claims, damages, losses, risks, liabilities and expenses (including attorney’s fees and costs) arising from or related to any breach of the foregoing certification.
(a) Waiver. Seller agrees that the failure of Purchaser at any time to require performance of any of the provisions in the Order shall not operate as a waiver of its right to require strict performance of the same or like provisions, or any other provisions hereof, at a later time.
(b) Entire Agreement and Amendment. The Order, together with such documents as are expressly incorporated herein by reference, constitutes the entire agreement and supersedes all prior agreements and understandings, oral and written, between the parties hereto with respect to the subject matter hereof. No course of prior dealings between parties hereto and no usage of the trade shall be relevant or admissible to supplement, explain or vary any of the terms of the Order. The Order may be amended only by written agreement executed by an authorized representative of each of the parties hereto.
(c) Severability. Where possible, each provision of the Order shall be interpreted in such manner as to be effective and valid, but if any provision of the Order shall be prohibited by applicable law, unenforceable in any jurisdiction or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition, unenforceability or invalidity, without invalidating the remainder of such provision or the remaining provisions of the Order, or affecting the validity or enforceability of such provision in any jurisdiction.
(d) Governing Law. The rights and obligations of the parties hereto under the Order shall be governed by and interpreted in accordance with the internal, substantive laws of the State of Ohio, United States of America, applicable to contracts made and performed in the State of Ohio. Jurisdiction and venue for any action arising under this Agreement will lie in the Courts of Common Pleas of Cuyahoga County, Ohio or in federal courts situated in the Northern District of Ohio (Eastern Division), in addition to any other court of competent jurisdiction. The parties irrevocably consent and submit to the personal jurisdiction of said courts. The parties hereby exclude the application of the United Nations Convention on Contracts for the International Sale of Goods. Notwithstanding the previous sentence, in the event Seller’s primary place of business is located within the People’s Republic of China (each, a “Chinese Seller”), all disputes, controversies, or differences which may arise between Purchaser and a Chinese Seller, out of or in relation to or in connection with this Agreement or for the breach thereof, shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one (1) arbitrator appointed in accordance with the said Rules. The language of the arbitration shall be English. The situs for such arbitration shall be Hong Kong, China. The arbitrator shall apply the laws of the State of Ohio, USA to the merits of the dispute. The award rendered by the arbitrator shall be final and binding upon both Purchase and Chinese Seller and may be enforced in any court of competent jurisdiction. The parties hereby exclude the application of the United Nations Convention on Contracts for the International Sale of Goods.