FIBERTECH TERMS & CONDITIONS OF PURCHASE ORDER

  1. Parties, Products Defined, and Other Terms. Any products, goods, materials, items, or services (collectively, “Products”) purchased by Fibertech Plastics, LLC. (“Fibertech”) shall be governed by the terms and conditions stated herein (the “Terms”). Each contract for the purchase of Products between seller or vendor (collectively, “Seller”) and Fibertech (the “Contract”) shall include these Terms, together with any other written material describing the Products being purchased, pricing, delivery terms, or all other special provisions provided by Fibertech. Seller and Fibertech are independent contracting parties, not principals or agents, partners, or joint venturers. Neither party has the authority to enter into any Contract, or make any warranty or representation on behalf of the other party, except where and to the extent specifically authorized to do so in writing. Seller’s acceptance of Fibertech’s purchase order (“Order”) is made expressly conditional on Seller’s assent to these Terms, and Seller’s acceptance of an Order shall constitute unconditional assent to these Terms. Any additional terms proposed by Seller shall not be binding upon Fibertech unless approved and executed in writing by an authorized representative of Fibertech. Upon Seller’s acceptance of an Order, these Terms, together with the Order, shall together comprise the “Order.”  No terms or conditions provided by Seller’s acknowledgement, acceptance, or any other document shall be binding upon Fibertech nor supersede these Terms, and any Order shall be governed solely and exclusively by these Terms.  Fibertech may revise these Terms at any time, from time to time, with such revisions to take effect upon Seller’s receipt of notification.
  2. Terms of Payment and Set-Off. Unless otherwise agreed to in writing, all sums shall be considered due and payable within sixty (60) days from receipt of an undisputed invoice or Products, whichever is later. Fibertech shall have the right at all times to set off any amount owing from Seller to Fibertech, or any subsidiary or affiliate of Fibertech, against any amount payable at any time by Fibertech in connection with this Contract.
  3. Freight. Except as otherwise agreed by Fibertech in the Order, all delivery of Products will be made on terms DDP (Incoterms 2010) Fibertech’s named location. As such, Seller will bear all risks and costs, including duties, taxes and other charges, of delivering the Products, cleared for importation, to Fibertech’s named destination. No charges of any kind, including but not limited to, taxes and expenses incurred for boxing, cartage or insurance, will be allowed unless specifically agreed to by Fibertech in writing. Prices will cover net weight of material, unless otherwise specified herein. Seller assumes all risk of loss and liability arising out of or related to the transportation of the Products to Fibertech, including but not limited to any and all liability for environmental contamination or damages occurring during said transportation.
  4. Intellectual Property Rights. The Seller shall not use any trade marks, service marks, trade and business names, domain names, design rights, copyright, moral rights, rights in databases, patents, logos, rights to sue for passing off, trade secrets, rights in confidential or proprietary information and other intellectual property rights, in each case whether registered or unregistered and including applications for the grant of any of the foregoing and all rights or forms of protection having equivalent or similar effect to any of the foregoing which may subsist anywhere in the world (collectively “Intellectual Property Rights”) owned by Fibertech and/or licensed to Fibertech without Fibertech’s prior written consent. The parties agree that all Intellectual Property Rights that may subsist anywhere in the world in and to the specifications and requirements contained in the Contract or otherwise associated with or comprising the Products (collectively “Fibertech IP”), shall be the sole property of Fibertech, with the exception of any Intellectual Property Rights that were conceived, created or reduced to practice by or for the Seller (alone or with others) prior to commencement of the Contract and without the use of any specifications and requirements contained in the Contract (“Seller IP”), all of which Seller IP shall remain the exclusive property of the Seller. The Seller hereby irrevocably transfers, assigns, and conveys all of its right, title, interest and any proprietary right of any kind whatsoever in and to any such Fibertech IP to Fibertech, and waives and will cause each of the employees, subcontractors, consultants and other personnel assigned to supply the Products to waive in whole in favor of Fibertech any and all moral rights in and to the Fibertech IP. The Seller agrees that it shall never claim any right in or to any of the Fibertech IP, all of which is to be created for and owned by Fibertech. Fibertech may, without payment of additional compensation to the Seller, make such changes, modifications, adaptations, or revisions to the Fibertech IP as Fibertech may in its sole discretion determine or desire, and the Seller agrees that it shall never claim any rights of any nature whatsoever in any such changed, modified, adapted or revised material. Fibertech hereby grants to the Seller a royalty-free, non-exclusive, revocable license to use the Fibertech IP, solely for the Seller to supply the Products and solely during the term of the relevant Contract. Upon the expiration or termination of the relevant Contract, said license will immediately end and all such Fibertech IP in the Seller’s possession or control shall be returned or destroyed. To the extent that any Seller IP is incorporated in, or is necessary to use the Fibertech IP or the Products, the Seller grants to Fibertech and its affiliates a royalty-free, world-wide, non-exclusive, irrevocable license to use, disclose, reproduce, modify, license and distribute such Seller IP. The Seller acknowledges and agrees any specifications and requirements contained in the Contract are prepared and created on a “work for hire” basis and shall immediately become the property of Fibertech and used by the Seller under a revocable license, and shall be delivered to Fibertech by Seller in both printed and electronic forms to Fibertech’s reasonable satisfaction, including without limitation that specifications shall be delivered in .PDF and Auto-CAD formats. To the extent required, the Seller shall procure that Fibertech is granted an unlimited, irrevocable, world-wide, perpetual, royalty-free license sufficient for Fibertech, its customers or any of its affiliates to make use of the Products in the manner intended.
  5. Warranties. Seller warrants that, on the date an Order is released for shipment, the Products sold to Fibertech conform to the specifications agreed upon by the parties in writing. In addition to all other warranties provided by law, Seller warrants as follows: (a) that the Products sold hereunder or pursuant hereto will be free of any claim of any nature by any third person and that Seller will convey clear title thereto to Fibertech as provided hereunder; (b) that the Products sold hereunder or pursuant hereto will be of merchantable quality, free from all defects in design, workmanship and materials, and will be fit for the particular purposes for which it is purchased and that the Products are provided, assembled and installed in strict accordance with the highest professional standards, and the specifications and/or the samples, drawings, designs or other requirements (including performance specifications) approved or adopted by Fibertech; and (c) that the on-site response time for any warranty related issue shall be as reasonably requested by Fibertech; provided however, that in the event of an emergency, no later than twenty-four (24) hours from the time of Fibertech’s notification. The parties acknowledge and agree the warranties contained in this Section shall be in addition to and shall not be construed as restricting or limiting any warranties or remedies of Fibertech, express or implied, which are provided by contract or law, including, but not limited to, the warranties and remedies contained in the Uniform Commercial Code. Any attempt by Seller to limit, disclaim or restrict any such warranties or remedies of Fibertech, by acknowledgment or otherwise, in accepting or performing this Contract shall be null, void and ineffective without Fibertech’s written consent.
  6. Rejections. All purchases are subject to inspection and rejection notwithstanding prior payment. If any of the Products ordered are found at any time to be defective in material or workmanship, or otherwise not in conformity with the requirements of this Contract, including any applicable drawings and specifications, Fibertech, in addition to such other rights, remedies and choices as it may have by contract or by law, at its option and sole discretion may:  (a) reject and return such Products at Seller’s expense for transportation both ways and all related labor and packing costs and Seller will promptly refund to Fibertech all prior payments received by Seller; (b) require Seller at its sole expense to replace the rejected Products to a revised schedule submitted by Fibertech; or (c) require Seller to inspect the Products and remove and replace nonconforming Products with Products that conform to this Contract. If Fibertech elects option (c) above and Seller fails to promptly make the necessary inspection, removal and replacement, Fibertech may at its option inspect and sort the Products and Seller shall pay the costs thereof, in addition to any other remedy available to Fibertech.
  7. Indemnification. TO THE FULLEST EXTENT PERMITTED BY LAW, SELLER SHALL DEFEND, INDEMNIFY AND HOLD FIBERTECH, ITS OFFICERS, DIRECTORS, SHAREHOLDERS AND EMPLOYEES HARMLESS FROM ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION, CONTROVERSIES, LIABILITIES, FINES, REGULATORY ACTIONS, LOSSES, COSTS, EXPENSES, INCLUDING BUT NOT LIMITED TO ATTORNEYS’ FEES, EXPERT WITNESS EXPENSES AND LITIGATION AND DISPUTE RESOLUTION EXPENSES, ARISING FROM OR IN CONNECTION WITH ANY DAMAGE, ENVIRONMENTAL LIABILITY, PATENT OR INTELLECTUAL PROPERTY INFRINGEMENT, INJURY, DEATH, LOSS, PROPERTY DAMAGE, DELAY OR FAILURE IN DELIVERY OF THE PRODUCTS, RELATING TO THIS CONTRACT, THE BUSINESS RELATIONSHIP BETWEEN THE PARTIES, TRANSPORTATION OF THE PRODUCTS BY THE SELLER OR A THIRD PARTY CARRIER, OR THE PRODUCTS PROVIDED HEREUNDER, WHETHER BASED IN COMMON LAW, TORT, CONTRACT, STATUTE, INCLUDING ANY AND ALL FEDERAL, STATE OR LOCAL LAWS, OR OTHERWISE (COLLECTIVELY “CLAIMS”), AND REGARDLESS OF WHETHER DIRECTLY OR INDIRECTLY RELATED TO ANY ACTION OR FAILURE TO ACT BY SELLER, OR ITS REPRESENTATIVES, AGENTS, EMPLOYEES OR SUPPLIERS.  HOWEVER, SELLER MAY NOT BE OBLIGATED TO INDEMNIFY FIBERTECH FOR THE SOLE NEGLIGENCE OR WILLFUL MISCONDUCT OF FIBERTECH WHERE SUCH INDEMNIFICATION IS CONTRARY TO LAW.  IN ANY AND EVERY CLAIM AGAINST FIBERTECH BY ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY SELLER, THE INDEMNIFICATION OBLIGATION UNDER THIS PARAGRAPH MAY NOT BE LIMITED IN ANY WAY BY ANY LIMITATION ON THE AMOUNT OR TYPE OF DAMAGES, COMPENSATION OR BENEFITS PAYABLE UNDER WORKERS’ OR WORKMEN’S COMPENSATION ACTS, DISABILITY BENEFIT ACTS OR OTHER EMPLOYEE BENEFIT ACTS.
  8. Taxes. The Products sold pursuant to this Contract are not subject to sales or use taxes. Unless otherwise agreed to in writing, signed by the parties hereto, Seller shall pay any and all taxes on the Products.
  9. Compliance with Laws. Fibertech may at reasonable times and upon reasonable notice, perform such inspections and/or audits at Seller’s facilities as Fibertech deems necessary to assure itself of Seller’s compliance with applicable laws and regulation as well as to assure itself that Seller is complying with its obligations to Fibertech hereunder. Seller agrees, represents and warrants as follows: (a) Seller agrees to comply with the applicable provision of any federal, state or local law or ordinance and all orders, rules and regulations issued thereunder, and any provisions, representations, or agreements, required thereby to be included in the contract resulting from acceptance of this Contract, including but not limited to, clauses dealing with Equal Opportunity, employment of veterans, employment of handicapped, and utilization of minority business enterprises, and such requirements are incorporated herein by reference; (b) Seller represents and warrants that in accordance with all federal, state or local environmental laws, including but not limited to OSHA, all hazardous materials contained in Products in this Contract are properly labeled and an applicable material safety data sheet has been submitted to Fibertech; (c) each chemical substance constituting or contained in Products sold or otherwise transferred to Fibertech hereunder which is required or permitted to be reported for the inventory of chemical substances published by EPA pursuant to the Toxic Substances Control Act, is as of the time of sale or transfer on the list of such substances published by the Administrator of EPA.
  10. Force Majeure. Neither party shall be responsible for any failure to perform obligations assumed under any Order when such failure is attributable to a Force Majeure Event (defined hereinafter), provided that the impacted party must provide the other party prompt written notice of the Force Majeure Event and the affected Party shall use its reasonable efforts to avoid or remove such causes of nonperformance and shall continue performance hereunder whenever such causes are removed. As used herein, “Force Majeure Event” means any event beyond the party’s reasonable control that prevents said party from complying and includes, but is not limited to, fires, earthquakes, floods, or other casualties, condemnations; wars, acts of terrorism, civil strife or other violence; any laws, orders, proclamations, regulations, ordinances, actions, demands or requirements of any government agency or utility; or any other acts or conditions beyond the reasonable control of a Party hereto. When Fibertech is impacted by a Force Majeure Event, Fibertech may terminate an Order without liability as to any unallocated portion of the Order.
  11. Confidential; Proprietary Information. Any knowledge or information which the Seller shall have disclosed or may hereafter disclose to Fibertech, and which in any way relates to the Products, shall not, unless otherwise specifically agreed to in writing by Fibertech, be deemed to be confidential or proprietary information, and shall be acquired by Fibertech free from any restrictions (other than a claim for patent infringement) as part of the consideration for this Contract. All technical and other information obtained or learned by Seller as a result of this relationship and all technical and other information furnished by Fibertech and Seller shall remain Fibertech’s property and, unless otherwise consented to in writing signed by Fibertech’s authorized representative, shall be used only for performance of the work under this Contract. Seller agrees to keep confidential all methods, processes, techniques, shop practices, formulas, compounds, compositions, equipment, designs, drawings, blueprints, specifications, research data, product pricing, marketing and sales information, customer lists, plans and information provided or know-how and trade secrets owned by Fibertech or in Fibertech’s possession and disclosed to Seller as a result of this Contract.  Until such information has been published or disclosed to the general public, Seller agrees not to use such information for itself or others, or to disclose such information to others, and then only with Fibertech’s written consent.
  12. Cancellation. Fibertech may cancel all or any part of this Contract if shipment or delivery is not made by the date specified on the Order. Further, all or any portion of this Contract may be cancelled or suspended by Fibertech, without liability, if such cancellation or suspension is caused by compliance with any law, order, regulation, request or imminent action of any government entity. Fibertech is not committed to purchase any particular volume of Products, except for the quantity of Products specified in a written purchase order.
  13. Modification; Waiver. Fibertech’s waiver, whether express or implied, of any breach of these Terms shall not be deemed to be a continuing waiver of any subsequent or continuing breach, whether of like or different nature, nor shall such waiver limit or waive, by reason of any course of performance, dealing, usage of trade or otherwise, Fibertech’s rights to enforce and compel strict compliance with every term and condition herein.
  14. Non-Assignment. Seller shall not assign this Contract, any interest therein, any right or obligation created thereby or any payment due or to become due thereunder without Fibertech’s written consent. Any attempt by Seller to make such assignment shall be null and void and any such assignment by operation of law shall give Fibertech the option to terminate the Contract without further liability.  Seller shall remain fully liable and responsible for all obligations imposed under the terms and conditions of this Contract regardless of any such assignment.
  15. Dispute Resolution. The parties acknowledge and agree that any and all disputes arising relating to this Contract, which exceed Fifty Thousand Dollars ($50,000), shall be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and any judgment rendered by the arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding said Rules, any arbitration hearing to take place hereunder shall be conducted in Evansville, Indiana before one (1) arbitrator who shall be a licensed attorney with extensive experience in commercial law.  Each party hereby consents to a single, consolidated arbitration proceeding of multiple claims, or claims involving more than two parties.  Either party may apply to any court of competent jurisdiction for injunctive relief or other interim measures in aid of the arbitration proceedings, but not otherwise.  Any such application shall not be deemed incompatible or a waiver of this section.  The arbitrator shall be required to make written findings of fact and conclusions of law to support their award.  Notwithstanding anything to the contrary in the Commercial Arbitration Rules and supplementary procedures, the arbitrators shall not be authorized or empowered to award punitive damages and the parties expressly waive any claim to such damages.  Unless otherwise agreed to in writing, signed by the parties hereto, any and all disputes arising relating to this Contract which are less than Fifty Thousand Dollars ($50,000) shall be resolved in the Superior Court of Warrick County, State of Indiana, and each party hereto by performing under this Contract, consents to the exclusive exercise of jurisdiction and venue over any matter arising in connection with this Contract in said Court. In the event of any dispute, arbitration or litigation between the parties hereto involving this Contract or the respective rights of the parties hereunder, the party who does not prevail in such arbitration (or litigation as applicable) shall pay all the prevailing party’s reasonable attorneys’ and experts’ fees, costs and expenses incurred by the prevailing party in resolving said matter.  As used herein the term ‘prevailing party’ shall include, but not be limited to, a party who obtains legal counsel or brings an action against the other by reason of the other’s breach or default and obtains substantially the relief sought whether by compromise, settlement, or judgment.  THE PARTIES KNOWINGLY AND IRREVOCABLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF THESE TERMS OR ANY ORDER INCORPORATING THEM.
  16. Governing Law; Interpretation. This Contract shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the laws of the State of Indiana (not including the choice of law rules thereof). The parties have agreed and it is their intent that the battle of the forms Section 2-207 of the Uniform Commercial Code shall not apply to this Contract or to any invoice or acceptance form of Seller relating to this Contract. It is the parties’ intent that this Contract shall exclusively control the relationship of the parties, and in the event of any inconsistency between any purchase order or otherwise sent by Fibertech to Seller and this Contract shall control.  All rights granted to Fibertech herein shall be in addition to and not in lieu of Fibertech’s rights by operation of the law and Fibertech’s remedies under this Contract shall be cumulative. As used in this Contract, the plural shall be substituted for the singular, and the singular for the plural, where appropriate; and words and pronouns of any gender shall be meant to include any other gender or entity. The subject headings herein have been placed and arranged for convenience and shall not be considered in any question of interpretation of this Contract. In the event that any of the provisions of this Contract shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision shall be enforced to the fullest extent permissible and the remaining portion of this Contract shall remain in full force and effect. This Contract shall inure to the benefit of and be binding upon both Seller and Fibertech, their legal representatives, successors and assigns, except as limited hereinbelow.  IN THE EVENT OF CONFLICT BETWEEN THIS CONTRACT AND ANY OTHER INSTRUMENT ENTERED BY THE SELLER AND FIBERTECH, THE TERMS OF THIS CONTRACT SHALL HAVE PRIORITY, PREVAIL, AND BE CONTROLLING.  THIS PROVISION, AND EACH AND EVERY OTHER PROVISION OF THIS CONTRACT MAY NOT UNDER ANY CIRCUMSTANCES BE MODIFIED, CHANGED, AMENDED OR PROVISIONS HEREUNDER WAIVED VERBALLY, BUT MAY ONLY BE MODIFIED, CHANGED, AMENDED OR WAIVED BY AN AGREEMENT IN WRITING EXECUTED BY FIBERTECH.

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