ND'S TERMS AND CONDITIONS OF SALE
1. Background. ND Industries, Inc. ("ND") develops, manufacturers, markets, sells and distributes various coatings and other products for the fastener and other industries, including bottled adhesive products that are user applied, as well as the equipment utilized to apply such coatings. The Buyer (as identified in the related quote or Purchase Order) is interested in purchasing from ND those goods and/or services as more fully described in the Buyer's Purchase Order or ND's quote, as applicable (the "Products and/or Services"). These Terms and Conditions shall be deemed incorporated into Buyer's Purchase Order for the Products whether or not specifically referenced therein.
2. Offer & Acceptance; Agreement. Buyer's acceptance of ND's quote and/or ND's acceptance of Buyer's written Purchase Order is limited to acceptance of the express terms and conditions contained herein. Once accepted, ND's quote or Buyer's Purchase Order, as the case may be, together with these Terms and Conditions, and any supplementary written information incorporated by reference herein, shall be the complete and exclusive statement of the parties' agreement and supercedes any prior discussions, negotiations, agreements, and understandings. Any modifications proposed by Buyer are not part of the parties' agreement in the absence of ND's written acceptance thereof. Any terms or provisions in the Purchase Order which are in any way inconsistent with those herein shall be null and void and the Terms and Conditions herein shall control. The placing of a Purchase Order or the shipping of goods to ND to be processed shall constitute acceptance of the Terms and Conditions contained herein.
3. Purchase Price And Payment Terms . The price quoted by ND for the Products and/or Services is in U.S. dollars for the quantity shown, less any taxes, freight, duty, and custom's charges. The purchase price for the Products and/or Services shall be paid net thirty (30) days unless otherwise specified by ND in writing. If, in ND's judgment, the financial condition of the Buyer at the time processed goods are ready for shipment does not justify the terms specified, ND reserves the right to change these terms or to require full payment or partial payment in advance. All sales are subject to the approval of ND's credit department.
4. Warranty. ND warrants the Products and/or Services to be free from defects in material and workmanship under normal and recommended use and that the Products and/or Services will conform to ND's published specifications or, if applicable, Buyer's specifications accepted by ND in a separate writing. ND's obligation under this warranty shall be limited to providing replacement products to the extent of any defective Products and/or Services, or at ND's election, to the repayment or crediting of Buyer with an amount equal to the purchase price of such defective Products and/or Services whether such claims are for breach of warranty, breach of contract, or negligence. This warranty shall extend for twelve (12) months from date of the original purchase by the original buyer only, and shall apply only to those goods which upon ND's examination disclose to its satisfaction that the Products and/or Services in question were in fact defective. THIS WARRANTY IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES EXPRESSED OR IMPLIED INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE AND OF ALL OTHER OBLIGATIONS OR LIABILITIES ON ND'S PART. THIS WARRANTY SHALL NOT APPLY TO ANY PART WHICH HAS BEEN SUBJECT TO ACCIDENT, NEGLIGENCE, ALTERATION, ABUSE OR MISUSE OR WHICH IS DEFECTIVE. ND MAKES NO WARRANTY WHATSOEVER IN RESPECT TO ACCESSORIES OR PARTS OR CHEMICALS NOT SUPPLIED BY ND. Notwithstanding the foregoing, any parts purchased by ND from its vendors shall only carry the vendor's specific warranty, to the extent transferable to Buyer. No representation or warranty, expressed or implied, made by any sales representative or other agent or representative of ND, which is not specifically set forth herein, shall be binding upon ND.
5. Standards. Many countries have adopted laws relative to standardization and product certification applicable to various products, including equipment such as that produced by ND. ND warrants that its products are compliant with standards required under United States law, but it cannot and does not warrant conformity with the standardization and product certification requirements of any other country except to the extent, if any, set forth in a separate writing delivered to Buyer by ND.
6. Inspection And Rejection. Final inspection of the Products and/or Services purchased pursuant to the terms hereof shall be at Buyer's premises unless otherwise agreed in writing. The Products and/or Services (or parts) rejected as not conforming to the Purchase Order, or as otherwise defective, shall be returned at Buyer's initial expense, including transportation and handling costs, but subject to reimbursement by ND upon confirmation of the defect claimed. Acceptance by Buyer of shipment of the Products and/or Services rendered by ND shall be deemed to have occurred no later than ten (10) days following receipt of such shipment by Buyer or Buyer’s customer, unless a timely rejection has been made by that date.
7. Shipment And Delivery. Except as provided in Paragraph 5, above, as it relates to returned processed goods, shipment of the processed goods shall be F.O.B. ND's place of business. Buyer shall be responsible for all transportation and delivery costs and shall bear the risk of any loss or damage in transit. Delivery dates, if specified by ND, are estimates only and are not guaranteed and are not binding on ND.
8. Confidentiality And Non-Disclosure. Buyer recognizes that ND is the owner of certain confidential and proprietary information relating to the development and application of the Products and/or Services, which includes specifications, technological know-how and other types of information or data, including certain patents related thereto (the "Technical Information"). Buyer agrees not to, directly or indirectly, disclose, disseminate or otherwise publish to any third-party any of the Technical Information. Buyer further agrees to protect from disclosure ND's Technical Information to the same extent which Buyer seeks to protect its own Technical Information from disclosure (but in no event will Buyer exercise less than reasonable measures). The confidentiality obligations herein shall not apply to any Technical Information which (a) at the time of disclosure is in the public domain, (b) after disclosure becomes part of the public domain other than through a breach of a non-disclosure obligation, or (c) was received from a third-party who acquired such information through lawful means and without any breach of a non-disclosure obligation. Tooling and gages, if any, for which Buyer is invoiced shall remain property of ND unless otherwise indicated and shall be maintained by ND only as long as reasonable usage warrants, as determined by ND in its sole discretion.
9. Patents. ND shall indemnify and save Buyer harmless from any judgments for damages and their costs which may be rendered against Buyer in any suit brought against Buyer on account of the infringement of any United States patent by any goods supplied by ND hereunder, provided that Buyer promptly notifies ND of the commencement of any such suit and authorizes ND to settle or defend such suit as ND may see fit, and provided further that Buyer renders every reasonable assistance which ND may require in defending any such suit. This indemnity shall not apply if Buyer has furnished the specifications for the Products and/or Services, or if Buyer has altered or modified in any way such Products and/or Services. In that event, Buyer shall indemnify and hold ND harmless for any claim of patent infringement.
10. Taxes. Buyer shall be responsible for all taxes, duties, assessments and other governmental charges related to the sale and shipment of the Products and/or Services; provided, however, ND shall be responsible for U.S. income taxes related to amounts received by ND in connection with its sale of the Products and/or Services to Buyer.
11. Termination. The Purchase Order and these Terms and Conditions may be terminated in any of the following ways:
- A. By mutual agreement of ND and Buyer;
- B. By ND, on thirty (30) days prior written notice, in the event that:
- (i) Buyer breaches or otherwise fails to comply with any provision contained herein, and such breach is not cured within that time period;
- (ii) ND reasonably believes that Buyer's financial condition places it in a position of being unlikely to be able to meet its contractual obligations;
- (iii) Buyer defaults under any other material contract to which it is a party; or
- (iv) Buyer sells all or substantially all of its assets, a majority of its voting stock or merges with another entity.
- C. By Buyer, upon thirty (30) days prior written notice, in the event that:
- (i) ND breaches or otherwise fails to comply with any provision contained herein, and such breach is not cured within that time period;
- (ii) Buyer reasonably believes that ND's financial condition places it in a position of being unlikely to be able to meet its contractual obligations;
- (iii) ND defaults under any other material contract to which it is a party; or
- (iv) ND sells all or substantially all of its assets, a majority of its voting stock or merges with another entity, unless ND is the surviving corporation in any such merger.
12. Currency. All payments shall be in U.S. currency. Payments not made within the time period required herein shall bear interest at the rate of one (1%) percent per month on the unpaid amount. In the event that ND finds it necessary to take action to collect any unpaid amounts, Buyer shall be responsible for all costs and attorney fees incurred by ND in connection therewith.
13. Limitation Of Damages. ND shall not be liable for any special, incidental or consequential damages, losses or expenses directly or indirectly arising from the sale, inspection, handling or use of the goods or from the Products AND/OR SERVICES provided by ND or from any other cause relating thereto, and ND's liability hereunder, in any case, is expressly limited to providing replacement Products AND/OR SERVICES for those Products AND/OR SERVICES not complying with the terms hereof or, at ND's election, to the repayment or crediting of Buyer with an amount equal to the purchase price paid by Buyer for the non-complying Products AND/OR SERVICES. If Buyer brings any action at law or equity in connection with the Purchase Order or these Terms and Conditions, no cause of action by Buyer shall include a claim, nor may recovery be had against ND, for any punitive, incidental, special or consequential damages of any kind, including but not limited to, damages to property OR PERSONS (INCLUDING DEATH), for loss of use, loss of time, loss of profits or income, or otherwise. ND's liability shall be specifically limited as provided herein.
14. Labeling. If Buyer purchases bottled products for resale by Buyer and to which Buyer is to apply its own label, Buyer shall include on its label the following language, unless ND consents, in writing, to alternative language:
“DIRECTIONS: Shake well before use. Make sure parts are clean and free from dirt, oil and grease. Apply product to one surface only. Assemble using normal tools in usual manner. Full cure 24 hrs. CAUTION SKIN IRRITANT. Contains Methacrylate Esters. Irritates skin & eyes, prevent contact. Wear gloves, goggles, protective clothing. May be harmful if inhaled. Avoid prolonged or repeated breathing of vapor. Use only in well ventilated areas. Harmful if swallowed. Keep container closed. Contamination may cause polymerization. No inhibitor required. For industrial uses only. Not recommended for plastics. If contact occurs, flush skin or eye with water. For eyes, get medical attention. KEEP AWAY FROM CHILDREN”
15. Force Majeure. Except for payment obligations of Buyer hereunder, neither party shall be liable under the purchase agreement for delays in performance or failure to perform its obligations caused by circumstances beyond its control, including but not limited to, acts of God, wars, riots, strikes, floods, labor disputes, accidents, and governmental restrictions.
16. Miscellaneous. The following miscellaneous terms and Conditions shall apply:
A . These Terms and Conditions may be executed in counterparts (including counterpart facsimiles) and each counterpart shall be deemed to be an original instrument, but all counterparts shall together constitute one agreement.
B . In case any one or more of the provisions contained in these Terms and Conditions shall for any reason be held to be invalid, illegal or unenforceable in any respect, that disability shall not affect any other provision herein and these Terms and Conditions shall be construed as if that provision had never been contained herein.
C . Captions to paragraphs of in these Terms and Conditions have been included solely for the sake of convenient reference, and are entirely without substantive effect.
D. These Terms and Conditions shall be binding upon, and its benefits shall inure to, the parties hereto and their respective heirs, representatives, successors, and assigns.
E. The Purchase Order and these Terms and Conditions shall be governed by and construed in accordance with the laws of the State of the Michigan with the courts sitting in either Oakland County, Michigan or the United States District Court for the Eastern District of Michigan having exclusive jurisdiction.
F. The Purchase Order and these Terms and Conditions embody the entire understanding between the parties with respect to the transaction contemplated herein. All prior or contemporaneous agreements, understandings, representations, warranties, and statements, oral or written, are merged into these Terms and Conditions. Neither these Terms and Conditions nor any of its provisions may be waived, modified, amended, discharged, or terminated except by an instrument in writing signed by the party against which that enforcement is sought and then only to the extent set forth in that instrument.
17. Assignment. Buyer may not assign its rights under the Purchase Order or these Terms and Conditions without the prior written consent of ND. Any assignment made without ND's written consent shall be null and void.
TERMS AND CONDITIONS TO ND’S PURCHASE ORDERS
1. Background. ND Industries, Inc. ("ND") develops, manufacturers, markets, sells and distributes various coatings and other products for the fastener and other industries, as well as the equipment utilized to apply such coatings. The Seller (as identified in the related quote or Purchase Order) is interested in selling ND those goods and/or services as more fully described in Seller’s quote or ND's Purchase Order, as applicable (the "Work", “products”, or “services”). These Terms and Conditions shall be deemed incorporated into ND’s Purchase Order for the Work whether or not specifically referenced therein. Unless otherwise expressly agreed in writing, all purchases are subject to the following terms and conditions:
2. Prices. All prices shall be stated in this Purchase Order and are firm and not subject to escalation. Seller represents and warrants that the prices set forth in this Purchase Order are at least as low as those currently being quoted by Seller to commercial users for the same products or services, in like quantities, under similar circumstances. If no price is stated for any product or service, the price for that product or service shall be the lowest price currently quoted or charged by Seller for that product or service, but in no event higher than the price most recently quoted or charged to ND by Seller for that product or service.
3. Taxes. Unless otherwise provided in this Purchase Order, the price includes, and Seller shall pay, all excise, sales, use, transfer or other taxes, federal, state, and local, in connection with the sale or delivery of the Work to ND.
4. Terms Of Payment. Unless ND has otherwise agreed in writing, payment terms shall be net thirty (30) days from the later of the date ND receives Seller's invoice or the date on which ND accepts the Work as satisfactory.
5. Quantities. Unless ND has otherwise agreed in writing, Seller must deliver the exact quantities specified, if applicable. ND reserves the right to reject incomplete deliveries and to return at Seller's risk and expense excess quantities delivered.
6. Packaging and Shipment. All products provided as part of the Work, if any, shall be packaged, marked, and otherwise prepared for shipment by Seller in suitable containers in accordance with sound commercial practices. Seller shall mark on all containers all necessary handling, loading, and shipping instructions, including but not limited to: ND's Purchase Order number; ND's item number and bar code; and description of product contained and quantity therein. An itemized packing list shall be included with each shipment on the outside of shipping container stating same information. Bills of lading and delivery slips must also include Purchase Order number and description of product.
7. Delivery. ND’s sale schedules are established in part in reliance upon the delivery information specified in this Purchase Order. The date specified (if any) is the date of arrival at ND's facility. Time and place of delivery are of the essence in the performance of this Purchase Order. Any provision for delivery in installments shall not be construed as making the obligations of Seller severable. If delivery cannot be made at the specified time and place, Seller shall promptly notify ND of the earliest possible date for conforming delivery. Notwithstanding such notice, and unless otherwise agreed by ND in writing, Seller’s failure to effect conforming delivery shall entitle ND to revoke any acceptance, to cancel this order without liability to Seller, to receive a full refund on any amounts paid, to purchase substitute products or services elsewhere, to return at Seller’s risk and expense all or any part of a nonconforming delivery and to hold Seller accountable for any loss or additional costs incurred. ND’s receipt or acceptance of all or part of a nonconforming delivery shall not constitute a waiver of any claim, right or remedy ND has under this Purchase Order or under applicable law.
8. Title and Risk of Loss. Title to and risk of loss for products purchased which conform to this Purchase Order shall pass to ND upon receipt and acceptance at ND's premises. Title to and risk of loss for nonconforming products and for all property provided to ND by Seller shall remain with Seller.
9. Inspection and Rejection. ND may inspect and test all products and services at reasonable times before, during and after manufacture or provision. All products and services shall be received subject to ND's inspection, testing, approval and acceptance at ND's premises. Products or services rejected by ND as not conforming to the Purchase Order may be returned to Seller at Seller’s risk and expense and shall not be replaced by Seller without ND's written authorization.
10. Warranties. In addition to any other express or implied warranties, Seller warrants that all Work delivered hereunder will be merchantable, new, suitable for the uses intended, of the grade and quality specified, free from all defects in design, material and workmanship, will conform to all samples, drawings, descriptions and specifications furnished, and will be free of liens and encumbrances. These warranties shall survive any delivery, inspection, acceptance, payment or resale of the Work and shall extend to ND and ND's customers, if applicable. These warranties shall be construed as conditions as well as warranties and shall not be deemed to exclude Seller’s standard warranties or other rights or warranties which ND may have or obtain. At its expense and option, Seller shall replace or repair any products not conforming to the foregoing warranties and shall correct all software products not performing substantially in accordance with applicable product specifications. If after notice Seller fails promptly to replace or repair any such product or to correct any such software product, Seller shall promptly refund to ND the full purchase price paid by ND for all such products.
11. Intellectual Property; Non-Infringement. Seller acknowledges and agrees that all intellectual and industrial property provided to Seller by ND, as well as the terms of this Purchase Order and the existence and content of the relationship between the Seller and ND, shall be treated as confidential, and shall not be used or disclosed by Seller except as required in the course of performing this or other Purchase Orders for ND. Seller represents and warrants that the Work delivered hereunder does not infringe any United States or foreign patent, trademark, trade secret or copyright, or any proprietary, intellectual property, industrial property, contract or other right held by any third party.
12. Changes. ND may, at any time and from time to time, by notice to Seller, make changes in specifications, designs, drawings, method of packing or shipments, quantity ordered, destinations and delivery schedules and Seller shall immediately comply therewith. If any such change causes a material increase or decrease in Seller’s cost or the time for performance, an equitable adjustment shall be made to the price or delivery schedule, or both. No change, modification or revision of this Purchase Order by Seller shall be binding upon ND unless in writing and signed by ND's duly authorized representative.
13. Compliance with Laws.
A. Seller shall comply with all applicable governmental laws, ordinances, codes, rules, regulations, programs, plans and orders in the performance of this Purchase Order. At ND's request, Seller shall provide appropriate certificates of compliance.
B. Seller shall obtain all permits or licenses required in connection with the manufacture, sale, shipment and installation of the products ordered hereby and/or the performance of the services..
C. If in connection with the Work to be delivered under this Purchase Order, Seller is required to comply with Occupational Safety and Health Act’s hazardous communications standard (48 Fed. Reg.53280(1983)), Seller agrees to provide ND with copies of the applicable Material Safety Data Sheets at the time of delivery to ND's premises of the products or services ordered hereunder which require such compliance, and any updates of such sheets required to be delivered by Seller to ND under such laws and regulations and/or upon request.
A. ND may, by notice to Seller, cancel the whole or any portion of this Purchase Order in the event of:
(i) proceedings, voluntary or involuntary, in bankruptcy or insolvency, by or against Seller;
(ii) the appointment, with or without Seller’s consent, of any trustee or receiver for any substantial portion of Seller’s assets;
(iii) any assignment for the benefit of Seller’s creditors; or
(iv) Seller’s breach of any provision contained herein. In the event of any such cancellation, ND may procure, upon such terms and in such manner as ND may deem appropriate, products or services comparable to the Work covered by the Purchase Order so terminated, and Seller shall be liable to ND for any excess cost of such comparable products or services.
In the event of any such cancellation, ND may require Seller to deliver to ND in the manner and to the extent directed by ND, any completed or partially completed products or services, and such delivery shall be credited against any prepayment by ND properly allocable to such products or services. Seller shall continue performance of this Purchase Order to the extent not canceled. Except to the extent specifically set forth herein, ND shall have no obligation or liability to Seller in respect of the canceled portion of this Purchase Order. ND's rights set forth in this Section 14 shall be in addition to ND's other rights in the event of Seller’s default. In the event of any such cancellation all deposits or prepayments shall be deemed to have been held in trust for ND's benefit and shall be returned to ND promptly upon request.
B. All of Seller’s obligations set forth in this Purchase Order shall survive the cancellation, termination or completion of this Purchase Order.
15. Assignment. Seller shall not delegate or subcontract any duties or assign any rights or claims under this Purchase Order without ND's prior written consent, and any such attempted delegation, subcontract or assignment shall be void.
16. Governing Law. This Purchase Order and the rights and obligations of the parties hereunder shall be governed by and interpreted, construed and enforced in accordance with the laws of the State of Michigan, United States of America, and the courts sitting in Oakland County, Michigan, or the U.S. District Court for the Eastern District of Michigan shall have exclusive jurisdiction and venue over any dispute arising hereunder.
17. Authorization. Seller represents and warrants that it has been duly authorized to execute, deliver and perform this Purchase Order, and the person signing on the Seller’s behalf has the power and authority to do so.
18. Indemnification. Seller shall indemnify and hold ND harmless against any and all claims, losses, liabilities, damages, costs or expenses, including attorneys’ fees and court costs, and shall defend all actions and proceedings at its sole expense, resulting from the breach or alleged breach of any representation, warranty or agreement made by Seller in this Purchase Order, including, without limitation, Seller’s obligations to deliver the Work pursuant to this Purchase Order and Seller’s representations, warranties and agreements contained in this Purchase Order.
19. Insurance. Seller shall maintain with an insurance company or companies Comprehensive General Liability Insurance (including liability hereunder) in the minimum amount of $1,000,000, naming ND as an additional insured. Seller shall also maintain all required workers’ compensation insurance, automobile liability insurance, and errors and omissions insurance, as well as such other insurance coverage as ND may request. At ND's request, a certificate of such insurance shall be filed with ND and shall provide for not less than 10 days prior written notice to ND of cancellation or material change. Liability insurance limits shall not be construed to limit ND’s right of indemnity hereunder.
20. Set-Off. Any amount owed to Seller by ND or any of ND's affiliates shall be subject to deduction for any set-off counterclaim or indemnification right arising out of this or any other Purchase Order to Seller from ND or any of ND's affiliates.
21. Severability. In the event that any one or more provisions contained in this Purchase Order shall be held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. The remedies contained herein are cumulative and in addition to any other remedies at law or equity. ND's failure to enforce, or waiver of a breach of, any provision of this Purchase Order shall not constitute a waiver of any other breach or of such provision.
22. Entire Agreement. These Terms and Conditions and the related Purchase Order are the complete and exclusive statement of the contract between ND and Seller with respect to ND's purchase of the Work. In case of a conflict between the terms and conditions on the face of this Purchase Order and the terms and conditions contained herein, the terms and conditions on the face of the Purchase Order shall control.
23. Additional or Inconsistent Terms. Any term or condition set forth in any Purchase Order provided to ND by Seller which is in any way different from, inconsistent with or in addition to the terms and conditions set forth herein will not become a part of this Purchase Order or be binding upon ND. If Seller objects to any term or condition set forth herein, this objection must be in writing and received by ND at the address stated on the opposite side prior to Seller’s delivery. ND's failure to object to terms contained in any communication from Seller will not be a waiver of the terms set forth herein. Seller shall not condition any delivery upon the abrogation or modification of any of the terms and conditions included in this Purchase Order.
24. Work to be Completed on ND’s Premises by Seller. In the event that Seller is required, as a part of its fulfillment of the terms of this Purchase Order, to perform all or any aspect of the Work on ND's premises, Seller assumes entire responsibility and liability for (and shall indemnify and hold ND harmless from) any losses, expenses, damage, demands and claims in connection with or arising out of any injury or alleged injury (including death) or damage to property, sustained or alleged to have been sustained in connection with or to have arisen out of the performance of such Work by Seller, its employees, agents or contractors.