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Terms of Purchase and Contract
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1. DefinitionThese terms and conditions apply to ALL purchases made and service contracts entered into by Beta Die Casting Equipment, referred to as BETA hereinafter, made from or made with any and all various sellers, contractors, suppliers, shippers and service providers and any of their sub-contractors or assigns, referred to collectively as the SELLER hereinafter.
2. Modifications and VariationsNo modification or variation in any of the terms, conditions, deliveries, prices, quality, quantity and specifications of any order or written agreement, irrespective of the wording of the SELLER’S acceptance, shall be effective and binding upon BETA without BETA’s written consent. For purposes of these terms and conditions of purchase, the term “order or written agreement” shall refer to any BETA purchase order or written agreement, scheduling agreement or delivery schedule provided to the SELLER. If any term or condition in the SELLER’S quotation, terms of sale or credit application, is in any way inconsistent or contrary to any of the terms or conditions of this order or written agreement, then the BETA Terms and Conditions of Purchase and Contracts as herein outlined shall supersede and shall be read instead of the terms and conditions as set forth in the SELLER’S quotation, terms of sale or credit application. The terms hereof constitute the entire BETA Terms and Conditions of Purchase and Contracts and there are no other representations, understandings or agreements, express or implied. BETA hereby expressly limits the SELLER’S acceptance to the terms and conditions stated herein. All implied warranties and remedies in favor of BETA implied by any applicable statute, including without limitation the Uniform Commercial Code and the Sale of Goods Act, are incorporated herein.
3. Non-Assignment and Set-offThe SELLER shall not assign any order or written agreement or any interest therein or any payment due or to become due hereunder without the written consent of BETA. BETA may set off against amounts payable to the SELLER hereunder any claim or charge it may have against the SELLER. BETA shall be entitled to assign its rights and its performance in whole or in part without the consent of the SELLER.
4. Packaging and ShipmentAll items shall be suitably packed, marked and shipped in accordance with requirements of common carriers, in a manner to secure lowest transportation costs, unless otherwise specified. BETA will not allow extra charges for boxing, packing, cartage or other similar charges unless previously agreed to in writing. BETA’s purchase order or written agreement number and each individual part number must be plainly marked on all invoices, packages, packing slips included with material, shipping documents and correspondence, together with BETA’s purchase order or written agreement line number, if available. A separate invoice shall be issued for each shipment, no invoice of the SELLER shall cover items referred to in more than one purchase order or written agreement of BETA, and all invoices must show net or cash discount terms. Unless otherwise specified in the order or written agreement, no invoice shall be issued prior to shipment of items and no payment will be made prior to receipt, and any payment period shall be computed from date of receipt of items at final destination and correct invoice to date BETA’s check is mailed. Unless freight and other charges, where applicable, are itemized, discount will be taken on full amount of invoice. No C.O.D. shipments will be accepted nor will drafts for this purpose be honored unless previously agreed to in writing. Shipping instructions must be adhered to when specified and additional costs resulting from deviation will be charged to the SELLER’S account.
5. DeliveryTime of delivery is of the essence of this order or written agreement. The SELLER agrees to provide BETA with a written acknowledgement of the order or written agreement within one (1) week of the date of the order or written agreement. Said acknowledgement shall contain the purchase order or written agreement number, part number, part description, request date, delivery date, price, quantity, and shipping terms. Delivery shall not be deemed to be complete until goods have been actually received and accepted by BETA, notwithstanding any agreement to pay freight, express, or other transportation charges. The SELLER shall follow the delivery schedule provided by BETA and shall not make deliveries later or earlier than dates shown therein. If items are shipped in advance of scheduled delivery dates, BETA may return them at the SELLER’S expense and they will be reshipped at BETA’s instruction. The SELLER shall immediately notify BETA if unable to meet delivery requirements. If it appears that the SELLER will not meet the specified schedule, the SELLER shall, if requested by BETA, ship via air freight or other expedited routing to avoid or minimize delay to the maximum extent possible, the added cost to be borne by SELLER. If the SELLER does not adhere to the delivery schedule, BETA may agree to a revised delivery schedule or cancel the order or written agreement or remainder thereof without liability, purchase elsewhere and charge SELLER with any loss incurred through its failure to deliver. Acceptance by BETA of late delivery of either the whole or a part of the order or written agreement shall not constitute a waiver of BETA’s claim for any damages that the late delivery may have caused.
6. QuantitiesShipments must equal exact amounts order or written agreement unless otherwise agreed in writing by BETA. BETA may refuse over shipments and shipments of less than the quantity order or written agreement and return same at SELLER’S expense. The SELLER acknowledges and agrees that the items, material and quantities contained in an order or written agreement are estimates of BETA’s annual usage only and do not constitute a commitment by BETA to purchase the full estimated annual usage from the SELLER. BETA has the right to terminate any order or written agreement, in whole or in part, at any time in accordance with these terms and conditions of purchase.
7. Warranty, Inspection and AcceptanceThe SELLER expressly warrants that all items covered by this order or written agreement will be merchantable and free from defects (whether known or unknown by the SELLER) in materials and workmanship, and will conform to the specifications, drawings, samples, intended use, or other descriptions furnished or specified by BETA, or agreed to in writing. The SELLER further warrants that all such items which are supplied in accordance with the SELLER’S specifications, drawings or samples, photos, or which are listed in SELLER’S catalog or website, or which are also manufactured for others by SELLER, will be fit and serviceable for the purposes for which used or for the purposes specified. Such warranties together with all other warranties and guarantees of the SELLER, shall run in favor of BETA and its customers (and for that purpose BETA is and shall be deemed to be acting as agent or trustee on behalf of and for the benefit of persons who are or might be from time to time its customers and their respective successors and assigns, and the SELLER expressly agrees not to assert lack of privacy as a defense to any claim by any such customer). The SELLER shall promptly repair or replace any nonconforming goods, without cost to BETA, for the period specified on the SELLER’S warranty but no less than a period of twenty-four (24) months from date of shipment to BETA. If the SELLER does not take action to correct the nonconformity within a reasonable time, but in no event later than one week after notice by BETA of the nonconformity, BETA may (but is not required to) effect repairs, and the SELLER shall reimburse BETA for all expenses incurred. Such actions on the part of BETA shall not relieve the SELLER of any responsibility or liability with respect to such goods. If the nonconformity cannot be corrected, the nonconforming goods shall be removed at the SELLER’S expense and the SELLER shall, without cost to BETA, and at BETA’s sole option (a) furnish other goods satisfactory to BETA on the same terms set forth in the order or written agreement or (b) promptly refund the purchase price in full or that portion that has been paid by BETA along with BETA’s costs incurred for transporting the goods to and from the delivery point. All items will be subject to test and inspection by BETA at place of manufacture and shall be received subject to BETA’s final inspection and acceptance at destination and right of rejection for cause on arrival or within a reasonable time thereafter. If items are not in accordance with BETA’s order or written agreements and specifications, BETA’s options include any one or more of the following actions: (1) reject or hold for a reasonable time awaiting the SELLER’S shipping instructions, but at the SELLER’S sole risk, expense and disposal including transportation costs both in and out, (2) return to the SELLER’S for full credit at the order or written agreement price, including transportation costs both in and out, without prejudice to any right to damages for such breach, (3) require the SELLER’S expense to replace rejected items at the unit price of this order or written agreement, (4) consider this order or written agreement breached as to the rejected quantity and cancelled as to any unfilled portion of this order or written agreement, and hold the SELLER fully liable for such breach and cancellation, or (5) if BETA’s production schedule, in BETA’s judgment, requires BETA to perform additional work or rework on defective or incorrect parts to make them usable to BETA, BETA may perform such work at the expense of the SELLER, and the performance of work on such parts by BETA shall in no way invalidate any warranty of quality on the goods. Payment for items prior to final inspection shall not constitute acceptance thereof. Risk of loss or damage to goods shall not pass to BETA until BETA has inspected and/or accepted the goods. By acceptance of this order or written agreement the SELLER warrants to BETA that all goods furnished under this order or written agreement shall be in compliance with all other applicable federal, state, provincial and local occupational safety and health legislation. In addition, if such are required by law, the SELLER agrees to furnish BETA with hazardous material data sheets and material safety data sheets on all goods supplied by the SELLER.
8. ChangesBETA may at any time, by written order or written agreement, make changes within the general scope of this order or written agreement in any one or more areas: (1) drawings, designs and specifications, (2) method of shipment, (3) place of delivery, inspection and acceptance, (4) reasonable increases or decreases in quantity, (5) sourcing and supplier(s), (6) material, process and testing requirements, and (7) reasonable changes in delivery schedules. The SELLER shall proceed immediately to perform this order or written agreement as so changed. If such a change causes an increase or decrease in cost or time required for the performance of this order or written agreement these factors are to be negotiated with BETA prior to effecting the change. Written change order or written agreements do not relieve the SELLER from liability for failure to perform.
9. TerminationBETA may at any time terminate its order or written agreement in whole or in part for convenience by written notice to the SELLER. Upon termination for convenience, the SELLER shall thereupon as directed cease work and as directed deliver to BETA all finished goods based on the rolling forecast negotiated between the parties (“Finished Goods”) and BETA shall pay the SELLER the price stipulated in this order or written agreement for all Finished Goods which have been completed prior to such termination and which are accepted by BETA. Any failure by the SELLER to perform its obligations under this order or written agreement, which failure shall be determined by BETA in its sole discretion, shall be a ground for BETA to cancel the order or written agreement or the affected portion of the order or written agreement for cause. Upon termination for cause, the SELLER shall not be entitled to any compensation pursuant to such termination, except for the actual value of the Finished Goods delivered by Seller/Contractor/Service Provider and accepted by BETA, prior to termination, which amount shall not exceed the purchase price of such delivered and accepted goods. Subject only to that exception, the SELLER shall refund BETA any monies paid to the SELLER up to the point of termination. The provisions of this clause are without prejudice to the rights of BETA in the event of any failure on the part of the SELLER to comply with the delivery schedule or other provisions of this order or written agreement. BETA reserves the right to cancel all or any part of this order or written agreement if the SELLER ceases to carry on business, if it becomes insolvent, if it files an assignment in bankruptcy, if it seeks the protection of any statute providing for a moratorium on its obligations, or if an order or written agreement
10. InfringementThe SELLER at its own expense agrees to defend any and all claims and/or actions against BETA and/or its employees, officers, directors, agents, distributors, dealers, representatives, or users of any of BETA’s products, and to indemnify and hold BETA and/or its distributors, dealers, representatives, or users of any of BETA’s products harmless against all costs, damages and expenses, including reasonable legal fees and disbursements (including court costs), arising from any infringement or alleged infringements of patents, copyrights, trademarks, trade secrets or other intellectual property rights or violation of any third party property rights resulting from the use or sale of the items purchased hereunder.
11. PriceIf the SELLER is not in full agreement with price and terms indicated herein, the SELLER will notify BETA before proceeding with order or written agreement. The SELLER is not to fill this order or written agreement at a price higher than shown on the face of this order or written agreement without authorization from BETA. The SELLER will give BETA the benefit of any price reduction made by the SELLER in the United States or Canada during the period of this contract, such reduction to apply on quantities undelivered at the date of such reduction. All order or written agreements where the price is left open are subject to cancellation and return of the goods if the SELLER’S prices are not agreeable to BETA.
12. TaxesUnless otherwise specified in this order or written agreement, the prices do not include all applicable taxes.
13. Compliance with LawsThe SELLER shall comply with all applicable federal, state, provincial and local laws and executive order or written agreements and regulations, including without limitation, all U.S. and Canada export control laws, OFAC regulations and environmental laws. The SELLER agrees to indemnify and save BETA harmless from and against any and all costs, expenses, including reasonable legal fees and disbursements, penalties, or other liabilities attributable to the SELLER’S violation of this requirement.
14. Applicable LawThe SELLER agrees that any agreements, contracts, terms and obligations that BETA shall be involved in will be governed by and construed in accordance with the laws of the province of Ontario, Canada. Therefore, any dispute relating to said agreements, contracts, terms and obligations must be resolved solely in the provincial or federal courts located in Ontario, Canada.
15. ConfidentialityAll drawings, specifications, technical data, or other information furnished to the SELLER by BETA in connection herewith are and shall remain the property of BETA, and shall not be reproduced or used in any way except in the performance hereunder, or disclosed to third parties or used in any manner detrimental to BETA. Upon completion or termination of this order or written agreement, the SELLER shall return to BETA all information furnished by BETA in connection with the performance of this order or written agreement.
16. ToolingUnless otherwise agreed in writing, all tools, equipment or material furnished to the SELLER by BETA, or specifically paid for by BETA and any replacement thereof shall be and remain the property of BETA. Such property shall be plainly marked or identified as BETA’s property. The SELLER shall not substitute any property for BETA’s property and shall not use such property except in filling BETA’s order or written agreements. The SELLER agrees to execute any and all documents necessary to evidence BETA’s right, title and interest in such property. Such property, while in the SELLER’S possession or control, shall be held at the SELLER’S risk and shall be subject to recall by BETA unless otherwise indicated. The SELLER agrees at its cost to insure all of BETA’s tools, equipment and materials on a replacement cost basis against loss or damage with insurers satisfactory to BETA and naming BETA and any other party designated by BETA as an additional insured and loss payee on the applicable insurance policies in an amount not less than required to cover any loss or damage to such tools, equipment and materials. The SELLER agrees to provide a certificate or other evidence of such insurance to BETA upon request.
17. ResponsibilityThe SELLER shall indemnify and hold BETA, BETA’s employees, officers, directors, agents, representatives, distributors and dealers, or users of BETA’s products, harmless, at the SELLER’S expense, from all liability, loss, and expense (including reasonable legal fees, disbursements, and court costs) or claims therefore, arising out of the SELLER’S acts or omissions, death or injury to any person or damage to any property, by whomsoever suffered, connected with or resulting from goods or services purchased under this order or written agreement. Evidence of the SELLER’S insurance coverage for these risks must be furnished to BETA upon request. Where work in connection with this order or written agreement is to be done by the SELLER on the premises of BETA, the SELLER further agrees to fulfill, at his expense, all the provisions of the workers’ compensation legislation in force in the jurisdiction in which said work is to be done and to include any person (s) employed by him outside of his place of business so that the SELLER and not BETA will be liable as employer under the said legislation. The SELLER further agrees to carry, at his expense proper liability and property damage insurance acceptable to BETA, covering work done by the SELLER on the premises of BETA, to be evidenced by insurance certificates, if requested by BETA. If furnishing service or materials on BETA’s premises, the SELLER must in all cases keep the premises upon which it does so free and clear of all liens arising out of or in connection with this order or written agreement.
18. GratuitiesThe SELLER warrants that it has not offered or given and will not offer or give to any employee, agent or representative of BETA any gratuity with a view towards securing any business from BETA or influencing such person with respect to the terms, conditions or performance of any contract with or order or written agreement from BETA. Any breach of this warranty shall be a material breach of each and every contract between BETA and the SELLER.
19. Force MajeureBETA reserves the right to cancel or modify any or all parts of the order or written agreement without liability in the event of a fire, accident, strike or any other condition beyond BETA’s control, including, but not limited to, any act of God, or any act by government or its officials or agents.
20. QualityThe SELLER agrees to comply with BETA’s quality assurance requirements attached hereto and made a part hereof.
21. LanguageThe SELLER agrees that all purchase orders or written agreements and all related documents shall be in the English language only.
22. Standards of Business ConductThe SELLER shall adopt and comply with a policy statement or code of conduct regarding business ethics (“Code”). This Code will be suitable for the SELLER’S business and as a minimum will require compliance with all applicable laws and regulations. The Code shall assure a safe and healthy work environment, prohibit the use of child or forced labor, provide for the protection of the environment and minimization of waste, emissions, energy consumption and the use of materials of concern and prohibit engagement in corrupt practices (e.g. facilitating, offering or paying any bribe). This provision creates no additional duties for BETA with respect to the SELLER and confers no rights on third parties.
23. GeneralThe SELLER’S fulfillment of BETA’s order or written agreement will constitute acceptance of these terms and conditions. Waiver of any default hereunder shall not be deemed a waiver of any default which may thereafter occur. BETA and the SELLER agree that this order or written agreement and the acceptance thereof shall be a contract made in the state or province shown in the BETA’s address on the face of this order or written agreement, and governed by the laws thereof, and that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to such contract. The courts of such state or province shall have the non-exclusive jurisdiction over any dispute arising out of this order or written agreement. In the event that it becomes necessary for BETA to institute litigation for the enforcement of any provision hereof, the SELLER agrees to pay BETA’s reasonable legal fees and disbursements (including court costs).