Terms and Condition of Purchase by Ridgid
- General Provisions – Acceptance
The purchase order (together with these terms and conditions, collectively, the “Order”) is an offer by Ridgid Paper Tube Corporation referenced on the purchase order (hereinafter referred to as “RPT”) to purchase the goods and/or services as defined on the purchase order and other related documents agreed to by RPT. Acceptance of the Order shall be deemed given by Supplier upon the earlier of acceptance, confirmation, shipment or other performance. The Order is conditioned upon Supplier’s complete acceptance of the Order without modifications or additions. Unless specifically agreed to in a writing by RPT. No additional or different term or provision (except additional warranties given by Supplier) of any quotation, invoice, acknowledgment or other form supplied by Supplier shall become part of the Order notwithstanding RPT’s failure to object to such term or provision, although the parties may use such documents for ease of administration.
- Delivery – Acceptance of Delivery
Supplier shall deliver the goods and/or services (the “Supply”) at the time and prices specified in the Order. Stated time limits and quantity commitments are of the essence. Supplier’s failure to comply with such requirements shall entitle RPT, in addition to any other rights or remedies, to cancel the Order, without liability. The date of delivery is the date the Supply is received at RPT’s designated delivery point. No early deliveries may be made without RPT’s prior written agreement.
- Lead-times – Penalties
In the event of delays in delivery or acceptance which are not attributable to an event of force majeure or to RPT’s sole negligence, RPT shall have the right to (i) require Supplier to ship such Order by air freight or other expedited means acceptable to RPT, and Supplier shall pay the costs of freight for such expedited shipment over the cost of the specified mode of transportation and/or (ii) impose penalties calculated on the total amount of the Order at a rate of 1% per calendar day of delay. In addition, RPT reserves the right to claim its actual loss from Supplier and/or to terminate the Order, in whole or in part, for breach of Supplier without liability and without prejudice to any damages.
RTP reserves the right to change the volumes, delivery dates, and/or the nature of the Supply at any time. For custom made supplies cancellation such rights shall exist to materials that have not commenced production to the point of making them unusable for other sale. Any decreases in cost of performance shall be passed through to RPT. If such change results in an increase in cost or time of performance, an equitable adjustment to the price and/or delivery date may be made by mutual agreement. If RPT and Supplier are unable to agree on an equitable adjustment, RPT may, at its option, terminate all or any portion of the Order without liability. Claims for equitable adjustment must be asserted by Supplier within ten (10) calendar days of the change to the Order.
- Risk of Loss
The Order is transported at Supplier’s risk. Risk of loss shall pass to RPT as soon as the Supply is delivered and signed for at RPT’s named delivery point. If an acceptance procedure is provided for, Supplier shall continue to bear risk of loss until RPT issues a written acceptance statement without reservations.
- Packaging and Documentation
The Supply shall be packaged adequately for shipment, storage and preservation and shall include all required documentation.
Supplier represents and warrants that the Supply meets the terms of the Order and RPT’s specifications. RPT is under no obligation to verify Supply immediately on receipt other than verification of counts of bulk packages. Determination at any time that the Supply does not meet RPT specifications or quantities within bulk packaging are incorrect is equivalent to determination at time or receipt including but not limited to rejection of part or all of the shipment.
Upon shipment of the Supply, Supplier shall send to RPT, by EDI, email, or mail, a copy of the shipping notification including the references and date of the Order, the number of parcels and an exact description of the shipped Supply.
Invoices shall be sent to the address in the Order and shall include RPT’s references and a description of the Supply invoiced, the unit prices, volumes delivered and such other information required by RPT from time to time. RPT reserves the right to suspend payment of any invoice which fails to comply with RPT’s requirements. Any disagreement by RPT as regards the volume or quality of the delivered Supply or the invoiced price, shall lead to the issuing of a debit notice to Supplier. Supplier shall have forty-five (45) days as from the issuing of the debit notice during which to challenge the latter.
- Prices and Terms of Payment
Unless otherwise provided in the Order (i) all prices are firm and include all transportation, insurance, packaging expenses and taxes, and (ii) payment terms are net thirty (30) days from the later of the date of the receipt of a complete invoice or RPT’s acceptance of the Supply unless otherwise agreed to by the parties in writing. Supplier hereby authorizes RPT to set-off and deduct any and all liabilities, debts and Claims Supplier or its affiliates now or hereafter owe to RPT.
- Assignment, Factoring of Accounts Receivables
Supplier shall not assign, transfer or factor all or any portion of its accounts receivable arising under the Order without at least fifteen (15) days prior written notice to and written authorization of RPT’s accounts payable department. Should Supplier have signed a factoring arrangement and have duly notified RPT thereof, all its invoices shall be paid solely to the factoring company and RPT shall not owe Supplier.
In addition to Supplier’s (or its suppliers’) standard warranty and/or service guaranty, Supplier warrants the Supply against any design, manufacturing and/or defect for a period of no less than twenty-four (24) months from delivery or acceptance, if an acceptance procedure is provided for. Supplier further represents and warrants that (1) the Supply: (i) is transferred to RPT with good and merchantable title and free and clear of all liens, claims and encumbrances; (ii) is of good quality, merchantable and free from defects in design, material and workmanship and is fit for the known purposes for which purchased; (iii) conforms to RPT’s specifications, the Order, and/or the sample approved RPT; (iv) is completed in a timely, competent and workmanlike manner; and (v) complies with all applicable Governmental Laws, including, without limitation, applicable industry codes and standards; and (2) Supplier has the requisite financial condition to fulfill the Order.
The foregoing warranties shall survive inspection, delivery and payment, and shall run in favor of RPT and its customers. No payment, inspection, acceptance, test, delay, use, resale or failure to inspect, test or discover any defect or other nonconformance shall relieve Supplier of any of its obligations under the Order or impair any rights or remedies of RPT.
If any Supply is found by RPT to be unsatisfactory for any reason, RPT may, at its option: (i) retain all or any portion of the Supply at an adjusted price; (ii) return the Supply for repair, replacement or refund as RPT shall direct; (iii) require re-performance or refund with respect to services; (iv) repair such Supply at Supplier’s sole cost; and/or (v) require Supplier to repair or replace the Supply in its environment.
In all cases, RPT shall be reimbursed by Supplier for all of its expenses in connection with the handling and transporting of any such unsatisfactory goods and additional expenses incurred by RPT as a result of nonconformance of goods or services, including travel, rework, de-installation, re-installation, disposal, replacement or recall so that the Supply operates in full compliance with the provisions of the Order and the use for which it is intended. Supplier shall assume all risk of loss or damage in transit to Supply returned by RPT.
Should Supplier fail to effectively comply with its warranty within fifteen (15) calendar days, RPT reserves the right to perform or to have any third party perform instead of Supplier at Supplier’s sole expense.
Any service furnished and/or any item replaced or repaired under this warranty are themselves guaranteed for twenty-four (24) months under the abovementioned conditions. Only the items / services with a normal lifecycle of less than twenty-four (24) consecutive months are excluded from the scope of this operational warranty.
- Discontinuation; Spare parts
If Supplier desires to discontinue any Supply, Supplier shall provide no less than nine (9) months prior written notice to RPT. RPT shall thereafter have the opportunity to purchase such requirements of the Supply as it deems necessary. Further, Supplier shall make available all spare parts for ten (10) years after the date of last delivery of any discontinued Supply.
- Intellectual Property
14.1 Each Party owns or has a license to use its respective patents, copyrights, trademarks, design rights, trade secrets, know-how and other intellectual property and proprietary rights (“IP Rights”) created or developed prior to entering into the Order including all modifications, improvements or changes in or to such pre-existing IP Rights. To the extent that any pre-existing materials are contained in or used in connection with the Supply (“Pre-existing IP”), Supplier grants to RPT a worldwide, irrevocable, non-exclusive, fully paid, royalty-free right and license to and to authorize others to use, execute, reproduce, display, perform, distribute and prepare derivative works of such Pre-existing IP.
14.2 Supplier acknowledges and agrees that all discoveries, inventions, technologies, procedures, processes, techniques, formulae, methods, improvements, designs, works of authorship, software, trade names, slogans, service marks, mask work rights, IP Rights and other intellectual property and proprietary rights and derivative works invented, conceived, created, discovered, developed, authored or devised, individually or in collaboration with any other person or entity during the Term or in the course of performing pursuant to the Order (collectively, “Inventions”) are “works made for hire” and shall be the sole and exclusive property of RPT. Notwithstanding the foregoing, if any Inventions do not qualify as “works made for hire”, Supplier hereby irrevocably assigns, without additional compensation, all right, title and interest in and to all such Inventions, including, without limitation, any and all applications, registrations, renewals, extensions, claims, allowances, reexaminations, reissues, extensions, other protections and all other United States and foreign intellectual property and proprietary rights of any type, nature and description for any and all Inventions throughout the world.
14.3 Supplier warrants that the sale or use of the Supply furnished hereunder will not infringe or contribute to infringement of any IP Right, and shall defend, indemnify and hold RPT, its predecessors, successors, assigns and customers (whether direct or indirect), harmless against any and all claims, losses, demands, damages and expenses (including reasonable attorneys’ fees and other costs of defending any action) (collectively, “Claims”) which they, or any of them, may sustain or incur as arising from or relating to the Pre-existing IP or of a breach of this warranty
- Confidentiality – Publicity
Any information, regardless of its nature (technical or commercial) or its support medium, provided to Supplier, or to which Supplier may have access or learn shall be kept strictly confidential and exclusively reserved for the purpose of performing the Order. Absent RPT’s prior written agreement, Supplier shall not disclose its business relationship with RPT to third parties, nor exhibit the whole of or part of the Supply manufactured from technical documents or specifications owned/provided by RPT.
Supplier shall defend, indemnify and hold RPT, its predecessors, successors, assigns and its customers (whether direct or indirect) harmless against any and all Claims, which they, or any of them, may sustain or incur in connection with the use of the goods or provision of services, except such as may be caused to the extent of the negligence of RPT that result from Supplier’s (i) violation of any common law or any federal, provincial, state, local or foreign statute, law, ordinance, rule, regulation, license, permit, authorization, registration, policy or order (collectively, “Governmental Laws” and individually, a “Governmental Law”), (ii) negligence, breach of warranty or strict liability in tort in connection with the use of the goods or provision of services and (iii) Supplier’s breach or default of the Order.
17.1 RPT may cancel any Order at any time prior to (i) shipment for non-specially manufactured goods, or (ii) commencement for services, without any liability to Supplier. If RPT terminates after the time set forth in 17.1(i) or (ii) above, RPT shall be liable to Supplier for Supplier’s actual, documented out of pocket expense expended prior to receipt of notice of cancellation by RPT for work and materials procured solely as a result of the Order which cannot be used by Supplier for any other product or service, and in no event shall exceed the purchase price of cancelled goods or services (the “Termination Cost”).
17.2 RPT shall have the right to cancel any Order for specially manufactured goods or services, and except as otherwise provided in applicable provisions of a government contract, RPT’s liability for cancellation of the Order for specially manufactured goods shall be limited to the Termination Cost.
17.3 In addition to its rights and remedies, RPT may immediately terminate any Order without liability whatsoever in the following cases:
- Court-ordered, or out-of-court dissolution or liquidation;
- An event of force majeure, the consequences of which last for more than six (6) weeks;
- Supplier’s breach or default of the Order;
- Supplier’s entering into a factoring arrangement;
- Supplier’s inadequate financial condition (as determined by RPT); and
- Supplier’s failure (as determined by RPT) to provide adequate assurance of performance and/or financial condition
- Disputes – Governing Law
The Order between RPT and Supplier is governed by New Jersey (USA) law without regard to conflict of law principles and to the exclusion of the provisions of the Vienna Convention of April 11th, 1980 on the international sale of goods.
- Sustainable Development
19.1. Supplier shall comply with the following principles:
– ISO26000 international standard “Guidance on social responsibility”. Basic principles of ISO26000 can be found on http://www.iso.org/iso/discovering_iso_26000.pdf
– the rules defined in the ISO 14001standard. – Furthermore, Supplier is informed that energy performance of the Supply that are the subject of the Order have been considered as part of the selection criteria used by RPT (ISO 50001 Standard).
19.2. In order to enable use of the Supply in total safety, Supplier shall:
– comply with all applicable Governmental Laws,
– comply with the legislation and regulations relating to the ban on, or restriction of, the use of certain products or substances which are effective when the Order is placed, if such is specified in the Order and/or the specifications, or which may become applicable up to the delivery date of the Supply.
Within forty-five (45) days of receipt of a request from RPT, which may be accompanied by a list which RPT may have sent to it and, otherwise, on the basis of the effective lists of restricted substances, Supplier shall advise RPT of the presence of such substances in its Supply.
At RPT’s first request, Supplier shall provide it with all supporting documents required during the legal timeframe for conserving documents.
19.3. Supplier certifies and warrants to RPT that any Supply that introduces any hazardous materials as defined by applicable Governmental Law into any facility of RPT or RPT’s customer(s) are properly labeled, shipped in proper containers and are accompanied by MSDS (material safety data sheets). Any Supply that introduces any materials or substances regulated under any Governmental Law (including, without limitation, California Proposition 65) shall be properly disclosed, labeled, packaged, shipped and shall be accompanied by material safety data sheets and other documents as required by applicable Governmental Law. Materials that are prohibited by Governmental Law, including, without limitation, asbestos, asbestos containing materials and polychlorinated biphenyls shall not be introduced into the Supply or any facility of RPT or RPT’s customers.
19.4 Supplier shall compensate RPT for all costs, damages and losses borne by RPT and/or for which it is found liable under third-party claims, owing to Supplier’s failure to comply with any of the provisions of this Article 19.
19.5. The Supplier will use its best efforts to report to RPT the presence and country of origin of any and all conflict minerals in the Supplies in accordance with the requirements of the US Dodd-Frank Act of 2010, and any similar law arising under any other jurisdiction.
- Management of Product / Process Changes
Supplier shall inform RPT in writing no less than nine (9) months prior to the date scheduled for the implementation of any material change made to the Supply including, but not limited to, changes affecting the processes, in its or its subcontractors’ business operations, information technology systems or processes, the procurement of critical components, the Supply’s design, composition or the location of the plant(s). RPT reserves the right to refuse any change. All changes remain under the full responsibility of Supplier. Supplier shall repay to RPT all the costs borne by RPT during, or in the context of, the reclassification of the Supply and/or component affected by the change.
Except as otherwise agreed in writing by RPT, RPT shall not be liable for any taxes, duties, customs or assessments in connection with the purchase and/or delivery of the Supply.
- Government Contract Terms and Conditions
If the goods or services to be furnished under the Order are identified by RPT as to be used in furtherance of any U.S. government contract or subcontract, then all the applicable provisions required to be included in the Order by the applicable government contract or by Governmental Law shall be deemed incorporated herein, including all applicable Federal Acquisition Regulation and DOD FAR supplement provisions. Supplier agrees to comply with all applicable Governmental Laws issued pursuant thereto, including without limitation, customs rules and regulations, restrictions on export of information, restrictions on dealing with restricted persons and citizens of restricted countries, compliance with equal opportunity requirements, EO13496 Notification of Employee Rights Under Federal Labor Laws and implementation of a supplier diversity plan. Importer Security Filing: For offshore suppliers, which will ship ocean to the U.S. only, Supplier represents, warrants and covenants that it shall fulfill the information data provision requirements detailed in http://www.cbp.gov/xp/cgov/trade/cargo_security/carriers/security_filing/, in cooperation with RPT’s named customs broker.
- NAFTA Certificates and Pedimentos
Supplier shall provide to RPT an appropriate NAFTA certificate of origin, other FTA certificate, GSP Form A, or other document as may be requested by RPT, as appropriate, for all eligible products to be imported into the United States, Canada or Mexico, as the case may be. For any sales or shipments to any of RPT’s maquiladora/IMMEX plants located in Mexico, Supplier shall provide to such plant appropriate export and/or import documents, including virtual pedimentos, as directed by RPT, to enable RPT to qualify for NAFTA benefits under the Government of Mexico’s maquiladora/IMMEX program or any successor program. Supplier shall immediately correct any errors in documents it furnishes to RPT or to any of its maquiladora/IMMEX plants in Mexico, regardless of when or by whom the errors are discovered. Supplier shall indemnify and hold RPT and/or its maquiladora/IMMEX plants harmless for all Claims attributable to such errors.
- U.S. Customs Documentation
Upon request, Supplier shall provide a country of origin affidavit and such other documents. Importing locations must have the opportunity to pre-approve the invoice, packing slip and any free trade agreement certifications prior to the first shipment. In the event that Supplier is located outside of the United States, Supplier will be responsible for export clearance. Upon request of RPT, Supplier will provide those documents required by RPT to recover duty paid by Supplier on imported Supply. All invoices for imported supply must: (1) contain the exact RPT catalog number; (2) reference the purchase order number for each invoice line item; (3) country of manufacture must be provided by line item; (4) a detailed description in English must be provided for each catalog number; (5) the currency must be identified; and (6) EDI to be established upon request. Supplier agrees to establish electronic data interface provision of the invoice information to both RPT and to its customs broker. The packing slip should contain weight and unit of measure, by line item if possible. The items shipped must be marked with the country of origin, or if excepted per the U.S. Customs Regulations, then the outermost export packaging unit must be marked.
- Fair Labor Standards Certificate
Supplier hereby certifies that all goods furnished hereunder have been produced in compliance with all applicable requirements of Sections 6, 7 and 12 of the Fair Labor Standards Act of 1938, as amended, and of regulations and orders of the Administrator of the Wage and Hour Division issued under Section 14 thereof, and in accordance with all applicable Governmental Laws governing general conditions for labor employed in the production of such goods, and will provide such certification on each invoice. Supplier further agrees to comply with the provision of all rules and regulations including Section 503 of the Rehabilitation Act of 1973, Section 402 of the Vietnam Veterans Readjustment Assistance Act of 1974, those of the Secretary of Labor, and executive orders including Numbers 11246, 13375, 11625, 11701 and 11758 applicable to this order regarding non-discrimination because of race, creed, color, sex, national origin, physical or mental handicap or veteran status.
- LIMITATION OF LIABILITY and STATUTE OF LIMITATIONS
IN NO EVENT SHALL RPT BE LIABLE FOR ANTICIPATED PROFITS OR FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. RPT’s LIABILITY OF ANY CLAIM OF ANY KIND FOR ANY LOSS OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH OR RESULTING FROM THE ORDER OR FROM THE PERFORMANCE OR BREACH THEREOF SHALL IN NO CASE EXCEED THE PRICE ALLOCABLE TO THE ORDER OR UNIT THEREOF WHICH GIVES RISE TO THE CLAIM. RPT SHALL NOT BE LIABLE FOR PENALTIES OF ANY DESCRIPTION. ANY ACTION RESULTING FROM ANY BREACH ON THE PART OF RPT AS TO THE ORDER MUST BE COMMENCED WITHIN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
- Entire Agreement
This Order, and any documents referred to on the face hereof, constitute the entire agreement between the parties.
- Assignments and Subcontracting
No part of this Order maybe assigned or subcontracted without the prior written approval of RPT.
A waiver will be effective only if in writing and signed by RPT and will be limited to the matter described therein; no such waiver will be or be deemed a waiver of any other, similar, prior, continuing or subsequent matter. Any notice, approval or consent required or permitted hereunder shall be in writing and will be deemed to have been duly given if mailed by registered or certified mail, postage prepaid or delivered by overnight courier service with tracking capabilities to the respective addresses of the parties as set forth in this Order (or such other addresses a Party may designate by ten (10) prior days written notice). If any provision of this Order shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Order shall otherwise remain in full force and effect and enforceable. Any failure by a Party to enforce any provision herein or right or remedy available to it on any one occasion shall not be construed as a waiver on any other occasion. Headings included herein are for convenience only and shall not be used to interpret or construe this Order.