Magretech Purchasing Terms and Conditions
Notwithstanding anything to the contrary in any quotation, purchase order or other communication (except a subsequent written amendment signed by the parties), the following terms will apply exclusively to all purchases by MagReTech, LLC or its designated subsidiaries or affiliates (“Buyer”) from the Seller of Supplies (as defined below). For purposes of clarity, references herein to “goods” shall include machinery and/or equipment, as the case may be.
1. OFFER; ACCEPTANCE; EXCLUSIVE TERMS; IDENTITY OF BUYER:
Each purchase order or purchase order revision (“Order”) issued by Buyer is an offer or counteroffer to Seller for the purchase of goods and/or services listed in the Order (“Supplies”) and includes and is governed by these terms (“Terms”). When accepted, the Order supersedes all prior agreements, orders, quotations, proposals and other communications regarding the goods and/or services covered by the Order, except that a signed prior agreement (such as an award letter, Statement of Work or Non-Disclosure Agreement) will continue to apply to the extent not directly in conflict with the Order. Seller accepts the Order, including these Terms, and forms a contract by doing any of the following: (a) commencing any work under the Order; (b) accepting the Order in writing; or (c) any other conduct that recognizes the existence of a contract with respect to the subject matter of the Order. The Order is limited to and conditional upon Seller’s acceptance of these Terms exclusively. The Order does not constitute an acceptance of any offer or counteroffer made, or sales order or quotation submitted, by Seller. Any reference in the Order to any offer or proposal made by Seller is solely to incorporate the description or specifications of Supplies in the prior proposal, but only to the extent that the description or specifications do not conflict with the description and specifications in the Order. Any additional or different terms proposed by Seller, whether in Seller’s quotation, acknowledgement, invoice or otherwise, are unacceptable to Buyer, are expressly rejected by Buyer, and will not become part of the Order, are invalid and non-binding, but shall not operate as a rejection of this Order if Seller accepts Buyer’s offer by commencement of work, shipment of Supplies, or by other means acceptable to Buyer, in which case this Order shall be deemed accepted by Seller without any additional or different terms or variations whatsoever. Any modifications of Buyer’s Terms must be expressly stated in the Order. Each Order can be modified only in accordance with the express provisions of these Terms. Seller acknowledges and agrees that it has read and understands these Terms.
2. SHIPPING AND BILLING:
2.1 Shipping. Seller will: (a) properly pack, mark and ship Supplies according to the requirements of Buyer (which, for the avoidance of doubt, may include those requirements set forth or referenced in an Order), the involved carriers and the country of destination and in accordance with any applicable laws or regulations; (b) route shipments as Buyer instructs; (c) label or tag each package according to Buyer’s instructions; (d) provide papers (including without limitation a packing slip) with each shipment showing the Order number, part number, amendment or release number, number of pieces in the shipment, number of containers in the shipment, Seller’s name and number, and the bill of lading number; (e) not charge for costs relating to handling, packaging, storage or transportation (including duties, taxes, fees, etc.) unless otherwise expressly stated in the Order; and (f) promptly forward the original bill of lading or other shipping receipt, and a copy of the packing slip, with
respect to each shipment as Buyer instructs and according to carrier requirements. Seller will include on bills of lading or other shipping receipts the correct classification identification of the Supplies shipped as Buyer or the carrier requires. The marks on each package and identification of the goods on packing slips, bills of lading and invoices must enable Buyer to easily identify the Supplies. Seller will reimburse Buyer for any expenses incurred as a result of improper packing, marking, routing or shipping.
2.2 Shipping and Payment Terms. Except as expressly stated in the Order, the price of Supplies includes storage, handling, packaging and all other expenses and charges of Seller. Except as otherwise stated in the Order, the shipping terms for all goods are D.D.P. (as that term is defined and used in Section 2- 319 of the Uniform Commercial Code) Buyer’s designated facility or such other location designated by Buyer. Buyer will pay proper invoices that reference the Order number, amendment or release number, Buyer’s part number, Seller’s part number where applicable, quantity of pieces in the shipment, weight and classification of the shipment if for scrap metal, number of cartons or containers in the shipment, bill of lading number and other information required by Buyer, per the payment terms put in the Order. Payment will be made in the currency expressly stated in the Order; if no such currency is noted, payment will be made in U.S. Dollars. Payment will be made by mailing on or before the due date unless otherwise expressly agreed by Buyer. Upon and during any breach of the Order by Seller, Buyer may withhold payment of the invoice. Seller will pay all premium freight costs over normal freight costs if Seller needs to use an expedited shipping method to meet agreed delivery dates due to its own acts or omissions. Seller will pay any costs incurred by Buyer, including without limitation costs charged by Buyer’s customer(s) to Buyer, as a result of Seller’s failure to comply with shipping or delivery requirements. Unless different payment terms are established in the Order, subject to the remainder of these Terms, Buyer will pay all undisputed and accurate invoices within ninety (90) days of receipt thereof, measured from the later of the date the Buyer receives the invoice, the date of delivery of the Supplies at Buyer’s facility, or if Seller is responsible for any installation or testing services or any other service specified in the Order, the date that Seller completes such services, provided, however, that Buyer may, in all cases, withhold all payments until the Supplies have successfully completed final qualification and acceptance testing at Buyer’s facility. Unless otherwise agreed in writing by Buyer, Buyer will initiate final qualification and acceptance testing within 30 days after delivery of the Supplies to Buyer’s facility. Buyer may also withhold payment for any goods or services until Buyer receives evidence, in such form and detail as Buyer requires, of the absence of any liens, encumbrances and claims on such goods or services.
2.3 Taxes. Unless otherwise stated in the Order, the price includes all applicable federal, state, provincial and local taxes other than sales, value added or similar turnover taxes or charges. Seller will separately invoice Buyer for any sales, value added or similar turnover taxes or charges that Seller is required by law to collect from Buyer. Seller will provide Buyer with whatever information and documentation that is required under local law in order to enable Buyer to recover any sales, value added or similar turnover taxes or charges. Invoices shall also be in the appropriate form as required by local law to permit deduction of payments for income tax purposes by the Buyer.
2.4 Withholding of Taxes by Buyer. If Buyer is required by law to make any deduction or withholding from any sum payable to Seller under the Order,
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Buyer shall be entitled to deduct or withhold such amount and effect payment thereof to the applicable tax authority. Buyer will, upon request from Seller, provide Seller official tax receipts or other evidence issued by the applicable tax authorities sufficient to establish that any taxes which are withheld have been paid.
2.5 Waiver of Liens. Where permitted by law, Seller waives any lien or other rights that Seller might otherwise have on or in any of the Supplies for work performed on, or utilizing, such Supplies or otherwise. Further, Seller hereby agrees that it will promptly release any and all liens that it may have on any property of the Buyer or the Buyer’s customer (whether or not such property is in Seller’s possession) and, upon Buyer’s request, provide Buyer with written confirmation that all such liens have been waived or released.
2.6 Delivery Schedules. Deliveries will be made to the address, in the quantities, on the dates and at the times specified by Buyer in the Order or any subsequent releases or instructions Buyer issues under the Order. Time is of the essence with respect to all delivery schedules Buyer establishes. Seller agrees to 100% on-time delivery of the quantities and at the times specified by Buyer, as stated in the Order. Buyer will not be required to pay for any Supplies that exceed the quantities specified in Buyer’s delivery schedules or to accept Supplies that are delivered in advance of the delivery date specified in Buyer’s delivery schedules. If the requirements of Buyer’s customers or market, economic or other conditions require changes in delivery schedules, Buyer may change the rate of scheduled shipments or direct temporary suspension of scheduled shipments without entitling Seller to a price adjustment or other compensation. Buyer is not obligated to accept early deliveries, late deliveries, partial deliveries or excess deliveries. Buyer reserves the right to refuse all or any portion of the Supplies and/or to terminate all or any portion of the Order if Seller fails to timely deliver or perform any portion of the Supplies in accordance with the Order. If Seller’s delivery of drawings (including without limitation proprietary drawings), other information or Supplies will not meet the required delivery date(s) for any reason, Seller shall provide Buyer with written notice of such delay and, unless Buyer terminates the Order as a result of such breach, Seller shall ship and/or provide the drawings, other information or Supplies via the most expeditious available method of transportation or otherwise, and any additional cost resulting therefrom shall be borne by Seller. Unless otherwise agreed in writing by Buyer, regardless of shipping terms, all risk that goods may be lost, damaged, stolen or delayed in transit shall be borne by Seller until conforming goods have been actually received, inspected, tested and accepted by Buyer in accordance with the Order. Seller shall not unreasonably anticipate delivery by purchasing materials or manufacturing quantities earlier than or in excess of what is reasonably required to meet Buyer’s delivery schedule.
2.7 Premium Shipments. If Seller fails to have Supplies ready for shipment in time to meet Buyer’s delivery schedules using the method of transportation originally specified by Buyer and, as a result, Buyer requires Seller to ship the Supplies using a premium (more expeditious) method of transportation, Seller will ship the Supplies as expeditiously as possible. Seller will pay, and be responsible for, the entire cost of such premium shipment, unless Buyer’s actions directly caused Seller to fail to meet Buyer’s delivery schedules, in which case Buyer will pay any costs for premium shipment.
2.8 Volume Forecasts. Buyer may provide Seller with estimates, forecasts or projections of its future anticipated volume or quantity requirements for Supplies. Seller acknowledges that any such forecasts are provided for informational purposes only and, like any other forward looking projections, are based on a number of economic and business factors, variables and assumptions, some or all of which may change over time. Buyer makes no representation, warranty, guaranty or commitment of any kind or nature,
express or implied, regarding any such forecasts provided to Seller, including with respect to the accuracy or completeness of such forecasts.
Unless otherwise agreed in writing by Buyer, Seller agrees that without further charge it shall assist Buyer in the installation of any Supplies purchased under the Order. Buyer and Seller shall agree in writing on the schedule for such installation and the role of each party in the installation process.
4. SPECIFICATION, DESIGN AND SCOPE CHANGES:
Buyer reserves the right to direct changes, or to cause Seller to make changes, to the goods and services to be provided pursuant to the Order, upon written notice to Seller. Buyer also reserves the right to otherwise change the scope of the work covered by the Order, including without limitation work with respect to such matters as inspection, testing or quality control, upon written notice to Seller. Buyer may also direct the supply of raw materials or other purchased components from itself or from third parties. Seller will promptly make any such requested change. In order for Seller to request a reasonable difference in price or time for performance as a result of such a change, Seller must notify Buyer of its request in writing within ten calendar days after receiving notice of the change. Buyer shall be entitled to receive additional documentation from Seller upon request relating to any change in specifications, price or time for performance. Seller will not make any change in the Supplies’ design, specifications, processing, packing, marking, shipping, price or date or place of delivery except at Buyer’s written instructions or with Buyer’s written approval.
5. QUALITY AND INSPECTION:
Buyer may enter Seller’s facility to inspect the facility, Supplies, materials manufacturing work and any of Buyer’s property (or the property of Buyer’s customer) related to the Order. Buyer’s acceptance, inspection, or failure to inspect does not relieve Seller of any of its responsibilities or warranties. Buyer’s inspection of Supplies, whether during manufacture, prior to delivery or within a reasonable time after delivery, does not constitute acceptance of any work-in-process or finished goods. Nothing in the Order releases Seller from the obligation of testing, inspection and quality control. Notwithstanding prior inspections, the Supplies are subject to inspection, evaluation and testing at the facility designated by Buyer, and notwithstanding any payment that may be made, the Supplies shall not be deemed accepted until such in-facility inspection, evaluation and testing demonstrate to Buyer’s satisfaction that the Supplies conform to all applicable terms of the Order, including through the production of a reasonable number of sample parts, and Seller receives a signed writing from Buyer’s authorized representative that acknowledges compliance of the Supplies with all applicable terms of the Order. Payment for nonconforming Supplies is not an acceptance, does not limit or impair Buyer’s right to assert any legal or equitable remedy, and does not relieve Seller’s responsibility for latent defects. Buyer’s inspection, evaluation or testing before, during or after manufacture, delivery and performance shall not constitute a waiver of the right of subsequent rejection by reason of any latent or otherwise undiscovered defect. If requested by Buyer, Seller shall provide a pre-acceptance run-off to Buyer at Seller’s facility, at no cost to Buyer.
6. NON-CONFORMING GOODS:
Seller will not substitute any goods for the goods covered by this Order unless Buyer consents in writing. In addition to other remedies available to Buyer: (a) Seller agrees to accept return, at Seller’s risk and expense at full invoice price, plus transportation charges, and to replace, defective Supplies as Buyer deems necessary; (b) Buyer may have corrected at any time prior to shipment from the facility designated by Buyer Supplies that fail to meet the requirements of