Terms; Parties; Offer; Acceptance. This purchase order or schedule agreement (“Order”) is an offer by BFG Supply Co., LLC (“Buyer”) for the purchase of goods and services (“Supplies”) from the party to whom this Order is addressed (“Seller”). This Order does not constitute an acceptance of any offer or proposal made by Seller. Seller’s written acceptance, the shipment of Supplies, Seller’s commencement of any work under this Order, or any other conduct by Seller that recognizes the existence of a contract with regard to the subject matter of this Order, constitutes Seller’s acceptance of these terms and conditions only. All purchases by Buyer are expressly limited by and conditioned upon Seller’s assent to this Order, and Buyer’s failure to object to any other term or condition, and/or Buyer’s acceptance of any goods or services, shall not be deemed acceptance of Seller’s terms or conditions. Notice of objection is hereby given to any additional or different terms or conditions proposed by Seller, whether contained or referenced in Seller’s quotation, order acknowledgement, invoice or otherwise, and they shall not become part of the contract between the parties to this Order or govern the sale of any Supplies to Buyer. THE TERMS AND CONDITIONS OF THIS ORDER ARE EXCLUSIVE and can only be modified in the manner described herein.
Warranties; Representations. Seller hereby transfers and assigns any and all warranties and any intellectual property indemnity, from the manufacturer of the products being sold hereunder to the Buyer. Separate and apart from any manufacturer’s warranty, Seller expressly warrants, represents, and guarantees to Buyer that all ordered goods and services will conform to the specifications, drawings, samples, or other descriptions furnished or specified by Buyer for such goods or services; will be merchantable, of good materials and workmanship, free from defect; and conform to all applicable laws, orders, regulations or standards where the Supplies are sold. Seller hereby incorporates by reference and passes on to Buyer the benefits of any and all warranties given to Seller by persons from whom Seller purchased any of the materials. All warranties are cumulative and in addition to any other warranty provided by law or equity. The warranty period for the Supplies shall be one year after the Supplies are provided by Buyer to its customer. This warranty does not cover wear and tear and shall be ineffective and shall not apply to products that have been subjected to misuse or abuse, neglect, accident, damage, or improper installation or maintenance. Buyer will inspect the products upon delivery and will promptly notify Seller in writing of any apparent defect in the products. If Buyer intends to bring a claim against Seller for breach of warranty under this Order, Buyer will provide Seller with a written claim indicating: (i) the existence and nature of the breach; and (ii) the amounts of the actual or anticipated warranty loss. In the event that after any applicable warranty period has expired, there are failures of a statistically significant portion of the Supplies, or a defect in the Supplies is discovered which poses a significant threat of damage to property or to the health or safety of any person, then the parties will work together in good faith to reach a mutually acceptable solution; provided, such agreement shall be reached within six months of Buyer notifying Seller of such failures. The foregoing warranties and other warranties provided in this Order are in addition to all other warranties which vest in Buyer pursuant to the Uniform Commercial Code or otherwise by operation of law. Buyer’s failure to give notice to Seller of any breach of warranty shall not discharge Seller’s liability for each such breach. Upon request, Seller will provide Buyer a written certification of its compliance with the foregoing requirements.
Payment. Payment shall be made as set forth in the Order and any related document made part of the Order. Buyer may withhold payment pending receipt of evidence, in the form and detail requested by Buyer, of the absence of any liens, encumbrances, or claims on Supplies provided under this Order. Seller shall immediately remove and agrees to indemnify and hold Buyer harmless against all loss in connection with, any lien or encumbrance filed against Buyer’s property because of any act or default of Seller, its contractors, subcontractors, material, agents, consultants, or employees. Seller agrees that it shall have no purchase money security interest in, and no right to reclaim, the Supplies. Unless otherwise agreed by the parties in writing, payment will be made in U.S. dollars. Unless otherwise shown on the face of the Order, the prices in this Order shall include all federal, state and local taxes, import duties, license fees or other governmental charges applicable to this Order. Seller agrees that all such taxes shall be separately stated on each invoice provided to Buyer. Unless otherwise agreed to by all parties, Seller shall elect one of the following payment methods: (a) Buyer shall remit payment via check delivered by postal carrier to the remit to address provided by Seller; (b) Seller shall enroll in Buyers PNC’s Active Pay (virtual cc payment) and will be paid electronically on the day payment is due; (c) Seller shall be paid by ACH in 15 days in exchange for a 2% discount net 45 day term.
Packaging; Shipping. All of the Supplies shall be suitably packed, marked, and shipped in accordance with the requirements of common carriers in the manner specified in the Order or otherwise to secure the lowest delivered cost to Buyer. Time is of the essence; thus, time of shipment and routing instructions specified in the Order must be strictly adhered to, and Seller agrees to pay any added costs or expenses due to any delays. If delivery is not made at the time specified in the Order, Buyer may immediately cancel the Order in whole or in part. Seller shall notify Buyer immediately of any situation which may delay timely performance. Damage to any of the Supplies not so packed, marked, and shipped will be charged to Seller. Unless otherwise indicated in the Order, (i) no charge shall be made by Seller for packing, drayage, shortage transportation, or insurance; and (ii) title and risk of loss for the Supplies shipped shall remain with Seller until delivered to Buyer at the premises specified by Buyer. Seller shall be liable for any damages arising during shipment, whether detectable upon delivery and inspection or latent in nature. Seller agrees to comply with all applicable laws and regulations pertaining to product and warning labels. Seller shall comply with all California standards for the Supplies (including Proposition 65) and ensure that all Supplies are labeled in conformity therewith. Seller shall provide notice to Buyer in writing of the identity and amount of each chemical listed as a carcinogen or reproductive toxicant under Proposition 65 or similar standards in California or any other statute which is known or suspected to be present in the Supplies.
Compliance with Laws. Seller and Supplies shall comply with all applicable laws, including rules, regulations, orders, conventions, ordinances or standards (collectively, “Law”), that relate to the manufacture, labeling, handling, storage, transportation, importation, exportation, licensing, approval, sale, registration or certification of the Supplies, including without limitation, laws relating to environmental matters, wages, hours and conditions of employment, subcontractor selection, discrimination, occupational health or safety, and motor vehicle safety. All components and materials used by Seller in the Supplies or in their manufacture shall satisfy current governmental and safety constraints on restricted, toxic, and hazardous materials, as well as environmental, electrical and electromagnetic considerations that apply to the country of manufacture, sale, or destination. Seller warrants that the use and sale of the Supplies and the use of any services provided do not infringe rights in any patent, copyright, trademark, trade secret, or other intellectual property. Seller shall not utilize forced or involuntary labor, regardless of its form, employ any child except as part of a government-approved job training, apprenticeship, or similar program, or engage in abusive employment or corrupt business practices, in the manufacture or sale of Supplies. Without limiting the foregoing, and to the extent applicable, Seller warrants that the Suppliers (i) either meet or exceed the requirements of the United States Food and Drug Administration and the United States Department of Agriculture, and (ii) conform with the provisions of the Consumer Product Safety Act and any rules and regulations thereunder.
Consumer Protection. Whenever Seller becomes aware that any Supplies are or may become harmful to persons or property or that any of the Supplies have become infested or contaminated or that the design or construction of any of the Supplies is defective in any manner which is or may become harmful to persons or property, whether such Supplies are used in the same mode as when delivered or whether such Supplies are used in the manufacture of, or become part of, goods sold by Buyer, Seller shall immediately give notice to Buyer thereof, including all relevant information with respect thereto.
Product Recalls: If (a) any government authority issues a request, directive or order that the Supplies be recalled, or (b) a court of competent jurisdiction orders such a recall, or (c) Supplier or Buyer reasonably determine after consultation with the other that the Product should be recalled, the Parties shall take all appropriate corrective actions. If such recall results from any course or event for which Buyer is responsible, Buyer shall be responsible for the expenses of recall. In all other cases, Seller shall be responsible for the expenses of recall. For the purposes of this Agreement, the expenses of recall shall include, without limitation, the reasonable expenses of notification and destruction or return of the recalled Supplies and the costs for the Supplies recalled which shall be equal to the purchase price paid for such Supplies.
Termination.
Termination for Convenience. Buyer may terminate all or any part of an Order at any time in its sole discretion by providing notice to Seller. In the event of such termination by Buyer for convenience, Seller’s compensation shall be limited solely to actual, documented, and reasonable costs that the Seller incurred up to its receipt of Buyer’s notice of termination. Seller shall take reasonable steps to mitigate such reasonable costs.
Termination for Breach; Termination for Nonperformance. Buyer reserves the right to terminate all or any part of this Order, without liability to Seller, if Seller: (i) materially repudiates, breaches, or threatens to breach any of the terms of this Order; (ii) fails to perform or threatens not to perform services or deliver Supplies as specified by Buyer; (iii) fails to make progress so as to endanger timely and proper completion or delivery of Supplies and does not correct the failure within ten (10) days (or such shorter period of time if commercially reasonable under the circumstances) after receipt of written notice from Buyer specifying the failure; (iv) sells, or offers to sell, a substantial portion of its assets used for the production of Supplies for Buyer, or sells or exchanges, or offers to sell or exchange, an amount of its capital stock or other equity interests that would result in a change in control of Seller; or (v) Seller ceases to conduct its operations in the normal course of business, any proceeding under the bankruptcy laws is brought by or against Seller, a receiver is appointed or applied for on behalf of Seller, or an assignment for the benefit of creditors is made by Seller. In the event Buyer terminates this Order in whole or in part for cause, Buyer may procure, upon such terms and in such a manner as Buyer deems appropriate, goods or services similar to the goods or services so cancelled, and Seller shall be liable to Buyer for any excess cost for such similar goods or services. Any such termination shall not affect goods or services previously delivered pursuant to the terms of this Order.
Additional Termination. In addition to any other rights of a party to cancel or terminate this Order, either party may, at its option, immediately terminate all or any part of this Order at any time and for any reason by giving 60 days’ written notice to the other party, and notwithstanding the existence of any event of force majeure as defined in this Order. Upon receipt of Buyer’s notice of termination, and unless otherwise directed by Buyer, Seller will (i) terminate promptly all work under this Order; (ii) transfer title and deliver to Buyer the finished Supplies, the work in process, and the parts and materials that Seller produced or acquired in accordance with the terms and conditions of this Order and which Seller cannot use in producing goods for itself or for others; and (iii) upon Buyer’s reasonable request, cooperate with Buyer in transferring the production of Supplies to Buyer or a different supplier. Upon termination by Buyer under this subsection, Buyer’s sole obligation to Seller will be to pay to Seller: (i) at the purchase price set forth in this Order, the purchase price for all finished Supplies that conform to the requirements of this Order and were not previously paid for; and (ii) Seller’s reasonable actual cost of work-in-process and the parts and materials transferred pursuant to this subsection. Upon termination of this Order under this subsection, Buyer’s obligation to Seller shall not exceed the obligation Buyer would have had to Seller in the absence of termination.
Force Majeure. Any delay or failure of either party to perform its obligations hereunder shall be excused if, and to the extent, that it is caused by an event or occurrence beyond the reasonable control of the party and without its fault or negligence. By way of example, this includes acts of God; terrorism, restrictions, prohibitions, priorities, or allocations imposed by or actions taken by any governmental authority (whether valid or invalid); embargoes; fires; floods; windstorms; explosions; riots; natural disasters; pandemics; epidemics; wars; sabotage; inability to obtain power; or court injunction or order. Written notice of such delay (including the anticipated duration of the delay) must be given to the other party as soon as possible (but no more than ten (10) days) after the occurrence. During a delay or failure to perform by Seller, Buyer, at its option, (i) may purchase Supplies from other sources and reduce its Order to Seller by such quantities, without liability to Seller; or (ii) may ask Seller to deliver to Buyer at Buyer’s expense all finished goods, work in process and parts and materials produced or acquired for work under this Order; or (iii) have Seller provide Supplies from other sources in quantities and at a time requested by Buyer and at the purchase price set forth in this Order. In addition, Seller, at its expense, shall take all necessary actions to ensure the supply of Supplies to Buyer for a period of at least ninety (90) days during any anticipated labor disruption or resulting from the expiration of Seller’s labor contracts. If Buyer requests, Seller shall, within ten (10) days of Buyer’s request, provide adequate assurance that the delay will cease within thirty (30) days of Buyer’s request.
Insurance. Seller agrees to furnish and maintain at its own cost and expense, insurance policies underwritten by good and solvent insurance companies adequately covering (i) commercial general liability; (ii) the liability of Seller for damage to property and for injuries to or the death of any person; (iii) the full retail value of all the Supplies that, by the term of the Order, are to be stored at a facility other than that belonging to Buyer; and (iv) the liability of Seller under applicable worker’s compensation or similar laws of personal injury claims sustained by its employees, including death resulting therefrom. Upon request, Seller shall furnish to Buyer a Certificate of Insurance indicating such coverage. Seller shall not violate or permit to be violated any condition of any or all such policies and shall at all times satisfy the requirements of the insurance companies writing such policies. The existence of insurance does not release Seller from or limit Seller’s obligations or liabilities under the Order.
Indemnification. In addition to any indemnification provisions contained elsewhere in these terms and conditions, to the fullest extent permitted by law, Seller will defend, indemnify, and hold harmless Buyer, Buyer's officers, directors, representatives, employees, advisors, and agents, Buyer’s successors and assigns, against all damages, claims, liabilities and expenses (including reasonable attorney’s fees and other professional fees, settlements, and judgments) arising or resulting from any claims for injuries or damages arising out of the Order, the breach of any terms of this Order (including any representation or warranty made hereunder), the negligent or wrongful acts or omissions or willful misconduct of Seller, or Seller’s agents, representatives, employees or subcontractors or to the extent that such injuries or damage are caused by any nonconforming or defective Supplies. Seller’s obligation to defend and indemnify under these terms and conditions applies whether or not the claim arises in tort, negligence, contract, warranty, strict liability, or otherwise. Buyer shall inform Seller of any claim, demand, or suit asserted or instituted against it. At Buyer’s sole discretion, Buyer may assume control of the defense or settlement of claims against Buyer, including without limitation the right to designate legal counsel. In no event shall Buyer or its officers, directors, representatives, employees, advisors, or agents be liable to Seller for any punitive, exemplary, or consequential damages, anticipated or lost profits, incidental damages, loss of time, or other indirect losses or expenses that arise from any cause relating to the Order, regardless of the form of the action and regardless of whether Buyer has been advised of such damages.
Remedies. Except as otherwise provided herein, the rights and remedies reserved to Buyer in this Order shall be cumulative with, and additional to, all other legal or equitable remedies. Buyer will notify Seller if any Supplies fail to conform to the warranties set forth in these terms and conditions or if Seller fails to comply with or breaches any of the terms and conditions of the Order. Seller will not knowingly ship nonconforming Supplies. Seller will reimburse Buyer for any direct damages caused by nonconforming supplies, including but not limited to, reasonable costs, expenses, and losses incurred directly by Buyer. Seller’s performance of all terms and conditions is prerequisite to its fulfillment of this Order, including, without limitation, as a predicate to the right to receive payment of the purchase price.
Confidentiality. Unless the parties agree otherwise in writing, no information disclosed in any manner at any time by Seller to Buyer will be deemed secret or confidential. Seller agrees not to assert any claim against Buyer, Buyer’s customers, or their respective suppliers, with respect to any technical information that Seller has disclosed or may disclose to Buyer in connection with the Supplies and services covered by this Order. Seller may not release or disclose Buyer’s confidential information to any third party without the express written permission of Buyer.
Advertising. Without first obtaining Buyer’s written consent, Seller shall not advertise or publish in any manner the fact that Seller has contracted to furnish Buyer the Supplies covered by this Order or use any trademarks or trade names of Buyer in Seller’s advertising or promotional materials.
Relationship of Parties. Seller and Buyer are independent contracting parties and neither the provisions of this Order nor the performance by the parties of their respective obligations under this Order shall make either party the agent or legal representative of the other for any purpose. This Order does not grant either party any authority to assume or to create any obligation on behalf of or in the name of the other.
Assignment. Seller may not assign or delegate its obligations under this Order without Buyer’s prior written consent. In the event of any approved assignment or delegation authorized by Buyer, Seller retains all responsibility for Supplies, including, without limitation, all related warranties and claims, unless otherwise expressly agreed in writing by Buyer. Buyer will have the right to assign any benefit or duty under the Order to any third party upon notice to Seller with or without consent.
Governing Law; Jurisdiction. Any action arising out of or related to the Order shall be governed and construed in accordance with the laws of the State of Ohio without regard to conflict of laws provisions wherever contained. Buyer and Seller agree that any litigation shall be conducted exclusively in the state or federal courts located in Cleveland, Ohio, and hereby consent to such jurisdiction and waive any personal jurisdiction or venue objections (including forum non conveniens) to such forum.
Severability. If any term of this Order is held to be invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, the term shall be deemed reformed or deleted, as the case may be, but only to the extent necessary to comply with applicable law. The remaining provisions of this Order shall remain in full force and effect.
Survival. The obligations of Seller to Buyer survive termination of this Order, except as otherwise provided in the Order and its terms and conditions.
Entire Agreement; Modifications; No Implied Waiver. The Order, together with the attachments, exhibits, supplements, or other terms and conditions of Buyer specifically referenced in the Order, constitutes the entire agreement between Seller and Buyer with respect to the matters contained in the Order and supersedes all prior oral or written representations and agreements. The Order may only be modified by a written amendment executed by authorized representatives of both the Buyer and Seller. The failure of either party at any time to require performance by the other party of any provision of this Order shall in no way affect the right to require performance at any later time, nor shall the waiver of either party of a breach of any provision of this Order constitute a waiver of any later breach of the same or any other provision of this Order.