(These “Terms and Conditions”) is by and between the “Supplier” identified on the Purchase Order to which these Terms and Conditions are attached or reference therein, and Knauf Insulation, Inc., a Delaware corporation, whose principal office is located at One Knauf Drive, Shelbyville, Indiana 46176 ("Buyer").
A. Buyer is the owner of various properties located throughout the United States.
B. From time to time Buyer will issue Purchase Orders for Goods and related services and for Services.
C. Buyer and Supplier desire to enter into these Terms and Conditions for the purpose of, among other things, (i) agreeing upon the general terms and conditions governing the relationship between Buyer and Supplier for transactions between them, and (ii) simplifying the process pursuant to which Supplier may be selected to furnish Goods or Services to Buyer.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Buyer and Supplier agree as follows:
1. MAJOR POINTS OF POLICY
These Terms and Conditions are incorporated by reference into all Purchase Orders that are either now outstanding or which shall be entered into between Buyer and Supplier, or issued by Buyer to Supplier, on or after the date stated above. The parties agree that, unless otherwise defined herein, all terms used herein shall have the meanings ascribed to them in the Purchase Order. The terms "herein," "hereto," "hereof," and "hereunder" shall mean these Terms and Conditions and the Purchase Order. Unless otherwise directed by Buyer, all contacts with respect to each Purchase Order must be made through the Purchasing Agent whose name appears on the Purchase Order. Any work performed or other action taken under any Purchase Order, in accordance with instructions of any individual other than said Purchasing Agent, shall be at Supplier’s risk and without recourse to claim for reimbursement.
2. ACCEPTANCE LIMITED – ADDITIONAL OR DIFFERENT TERMS DEEMED A COUNTEROFFER
Acceptance of each Purchase Order must be made in accordance with its exact terms. If additional or different terms are proposed in the acceptance (whether contained in any proposal, estimate, quotation, acknowledgment, invoice, packing slip, bill of lading, or other document used by Supplier) such acceptance shall be deemed a rejection of the Purchase Order and construed as a counteroffer. No binding agreement shall come into existence without the written consent of Buyer’s Purchasing Agent to such counteroffer. Any attempt to vary any of the terms of the Purchase Order shall be deemed a material alteration. Any proposed terms in Supplier’s acceptance of Buyer’s Purchase Order, which add to, vary from, or conflict, with the terms of the Purchase Order or the terms and conditions contained in this Agreement are hereby objected to. Supplier will be deemed to have assented to all terms and conditions contained herein if any part of the Goods covered by the Purchase Order are shipped or any part of the Services rendered.
3. DESIGNS, DRAWINGS, TOOLS, INFORMATION, ADVERTISING
Supplier shall not, without obtaining the prior written approval of Buyer, reveal the fact that Supplier has furnished or will furnish to Buyer the subject Goods or Services. Supplier agrees that it will use any designs, tools, patterns, drawings, information or equipment furnished by Buyer (collectively referred to as “Tools”) only in the production of the Goods and/or in the performance of the Service called for herein and will not use said Tools for the production or manufacture of larger quantities than those specified herein. Additionally, Supplier shall not reveal Buyer’s proprietary information to third persons except with Buyer’s prior written approval. All Tools shall remain property of Buyer at all times and shall be immediately returned to Buyer upon demand in good condition. Supplier shall insure all Tools while in Supplier’s possession.
If Supplier does not comply with the delivery schedule shown on the Purchase Order, Buyer may, in addition to any other rights which Buyer may have hereunder or by statute or law, require Supplier to accomplish delivery by the fastest way and all charges resulting from the premium transportation must be fully prepaid and absorbed by the Supplier. Supplier shall use reasonable commercial efforts to meet the agreed upon delivery date for any Purchase Order and shall promptly notify Buyer if Supplier believes delivery shall be delayed.
5. SHIPPING INSTRUCTIONS
5.1 All freight shall be shipped freight collect utilizing Buyer’s preferred carriers. No other charges of any kind, including charges for boxing and cartage, will be allowed unless specifically agreed to by Buyer in writing. Supplier shall be responsible for packing and packaging necessary to withstand transportation hazards. Supplier shall be responsible for marking all Goods according to U.S. Customs marking requirements. Price is to cover net weight, unless otherwise agreed in writing. Packaging requirements for shipments on Commercial Bills of Lading must meet commercial standards and accepted practice of the industry with full protection of the Goods to ultimate destination and must conform to governing classifications; including but not limited to; Uniform Freight Classification, for rail; National Motor Freight Classification, for truck; Railway Express Classification, for express; U.S. Official Postal Manual, for parcel post; and Official Air Freight Rules Tariffs, for air freight. Unless otherwise specified herein, Supplier shall not secure insurance coverage for Goods shipped hereunder via parcel post.
5.2 Unless otherwise specified herein or hereafter in writing, no variation in the quantity of Goods ordered hereunder shall be allowed. Goods shipped in excess of the quantity designated in the Purchase Order may be returned to Supplier at Supplier’s expense, and partial shipment of Goods is expressly prohibited.
5.3 Each package shall be numbered and labeled with Buyer’s Purchase Order Number, contents, and weight and shall contain an itemized packing slip. If no packing slip is enclosed, Buyer’s count or weight of goods shipped will be deemed conclusive.
5.4 Unless otherwise specified herein, all Goods shall be shipped FOB Origin.
6. TITLE AND RISK OF LOSS
Except as otherwise expressly provided herein, title shall remain in, and risk of loss and damage to Goods shipped by Supplier to Buyer hereunder shall be upon, Supplier until the Goods are physically delivered to the FOB point, and shall pass to Buyer upon Buyer's inspection and acceptance of such Goods. Supplier shall be responsible for the pursuit of any and all claims against the carrier for loss or damage to the Goods. Supplier shall carry sufficient insurance to protect itself against such risk of loss and shall present evidence of such insurance at Buyer's request.
All Goods ordered will be subject to inspection and test at any time or place, including the place and period of manufacture. However, Buyer reserves the right to make final inspection and acceptance at its specified destination, notwithstanding any prior inspection or payments.
8.1 Supplier is prohibited from making specification changes or substitutions for Goods or Services ordered without prior written notice to and prior written approval by Buyer. Any specification changes to or substitutions of Goods or Services by Supplier hereunder without the prior written approval of Buyer shall be and are rejected and such Goods or Services are not accepted by Buyer.
8.2 Buyer shall have the right any time before manufacturing, processing, or packaging of the Goods to make changes in quantity, drawings, designs and specifications, methods of shipment, packaging and place of delivery. If any such changes cause an increase or decrease in the cost of, or the time required for performance, or otherwise affects any other provision of the Purchase Order, an equitable adjustment shall be made and the Purchase Order modified in writing accordingly. Any claim by Supplier for adjustment under this clause must be asserted in writing, within thirty (30) days from the date of receipt by Supplier of the notification of change; provided, however, that Buyer, if it decides that the facts justify such action, may receive and act upon any such claim asserted at any time prior to final payment under the Purchase Order. Nothing contained in this clause shall relieve Supplier from proceeding without delay in the performance of the Purchase Order as changed.
8.3 In any event, the maximum liability of the Buyer for obsolescence, scrappage, or rework resulting from any change shall be limited to the rework cost or in the case of scrappage to the purchase price of the materials and parts in process at the time of the change less salvage value. Buyer shall have no liability hereunder for cost of obsolescence, scrappage or rework of materials and parts which Supplier has released for manufacture in advance of Supplier's normal manufacturing process.
9. WARRANTIES; DISCLAIMERS; BREACH AND REMEDY
9.1 PRODUCT WARRANTY
Supplier expressly warrants all Goods to be free from defects in design, workmanship and materials and to conform strictly to applicable specifications, drawings, and approved samples, if any. Such warranties, together with all other warranties of Supplier, shall run to Buyer, its successors, assigns and customers. Supplier warrants that it shall convey good and valid title to the Goods purchased by Buyer and that such Goods shall be delivered free and clear of any liens and encumbrances. All warranties shall survive inspection, test, acceptance of and payment by Buyer.
9.2 SERVICES WARRANTY
Supplier expressly warrants that all Services provided to Buyer shall be performed by qualified personnel and shall be consistent with current laws, regulations, and practices.
9.3 DISCLAIMER OF IMPLIED WARRANTIES.
SALES OF GOODS ARE MADE ON THE EXPRESS UNDERSTANDING THAT THERE IS NO IMPLIED WARRANTY THAT THE GOODS SHALL BE MERCHANTABLE OR AN IMPLIED WARRANTY THAT THE GOODS SHALL BE FIT FOR ANY PARTICULAR PURPOSE. THE BUYER ACKNOWLEDGES THAT IT IS NOT RELYING ON THE SUPPLIER’S SKILL OR JUDGMENT TO SELECT OR FURNISH GOODS SUITABLE FOR ANY PARTICULAR PURPOSE AND THAT THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THOSE DESCRIBED HEREIN.
9.4 WARRANTIES AGAINST INFRINGEMENT
Supplier warrants that the sale or use of the Goods or Services shall not infringe upon any third party’s intellectual property rights.
9.5 WARRANTY - PRICE
Supplier warrants that the prices for the Goods and Services sold to Buyer under any Purchase Order are not less favorable than those currently extended to similarly situated customers for the same or like goods and services in similar quantities. In the event Supplier reduces its price for such Goods and Services during the term of a Purchase Order, Supplier agrees to reduce the prices contained in this Purchase Order correspondingly.
9.6 BREACH AND REMEDY
If within eighteen (18) months after delivery any of the Goods are found at any time to be defective in design, material or workmanship, or otherwise not in conformity with the requirements stipulated herein, including delivery and warranty requirements, and provided Buyer has first given notice to Supplier and provided Supplier with a reasonable opportunity to cure the defect or nonconformity, Buyer shall return the Goods to Supplier, at Supplier's expense, for repair, replacement, or credit, at Buyer's option.
10. INVOICE AND PAYMENT
10.1 Supplier of Goods shall tender an invoice ("Invoice") to Buyer at or after the time of delivery of Goods to Buyer. Unless otherwise requested by Buyer, Invoices shall be rendered separately for each delivery, applying only to one order, and prominently indicating Buyer’s Purchase Order Number. Invoices are to be sent to such location as may be designated by Buyer. Upon the submission of proper Invoices, Supplier shall be paid the prices stipulated in the Purchase Order for Goods delivered and accepted, provided, however, that the prices and quantities specified in the Invoice match those contained in the Purchase Order.
10.2 Supplier shall invoice Buyer at the end of the month in which services are performed, payable within forty-five (45) days upon receipt of a proper Invoice.
10.3 The date for cash discount (if applicable) shall commence on the date the Goods are accepted by Buyer or the date of the receipt of a proper Invoice, whichever is later. Buyer shall pay the Supplier 2% net 15 or net 45 days after receipt of goods and receipt of a proper Invoice.
11. CONFIDENTIALITY /PROPRIETARY INFORMATION
Supplier hereby agrees and consents not to discuss, disclose, advertise, or in any way make public or discuss with third parties any Confidential Information and Proprietary Information without the express prior written approval of Buyer. “Confidential Information” means the financial and economic terms of these Terms and Conditions and any Purchase Orders and any information which may be related to Buyer’s business or which is known by Supplier as a consequence of or through the production and delivery of Goods, including, but not limited to, information related to research, development, inventions, formulae, products under development, manufacturing, purchasing, accounting, engineering, marketing, selling, customer lists, customer requirements, and the documentation thereof. Proprietary Information means any and all designs, tools, patterns, drawings, information or equipment and technical information contained in documents, drawings, publications, specifications, schedules and the like received from Buyer for the performance of any Purchase Order. Proprietary Information will not be transmitted, reproduced, used, or disclosed to any person or organization by Supplier except as may be necessary for the performance of work required under a Purchase Order.
12. INDEMNIFICATION; DEFENSE
Supplier agrees to defend, indemnify and hold harmless Buyer and its corporate affiliates, subsidiaries, officers, employees and agents from and against all loss, injury, liability, claim, damage or expense (including reasonable attorney's fees and expenses), interest, court costs, judgments, decrees, and amounts paid in settlement of claims, arising out of or resulting, directly or indirectly, from (a) the performance or non-performance by Supplier of its obligations hereunder, (b) Supplier's acts or omissions including, but not limited to, negligence, gross negligence and strict liability, (c) any non-conforming or defective Goods provided by Supplier, (d) infringement of any United States or foreign intellectual property right of a third party, including patent, trademark, copyright, and trade secret, (e) any inaccuracy in or breach of any of the representations, warranties, covenants or agreements of Supplier, and (f) any violation of Supplier of any applicable foreign, federal, state and local laws, regulations, ordinances and requirements. Supplier shall defend, at its expense, upon written request of Buyer, any action which may be brought against Buyer, its vendees, lessees, licensees, or assigns, under any claim of infringement in the use or sale of Supplier’s products.
13. SAFEGUARDS - LABELING AND NOTIFICATIONS
If any Goods shipped to Buyer by Supplier hereunder may in any way constitute or create real or potential hazards to human health and safety, Supplier shall (a) clearly and prominently label such Goods to indicate the characteristics of such hazards, handling, storage, and use limitations, and recommended precautionary measures and (b) prior to or concurrently with the shipment of such Goods, furnish, under separate cover to Buyer’s Purchasing Agent whose name appears on the Purchase Order, specifications and data which completely describe the characteristics of such hazards, handling, storage, and use limitations and recommended precautionary measures. Any Goods shipped by Supplier and received by Buyer hereunder that are not so labeled and for which Supplier has not provided the aforesaid specifications and data shall be deemed by Buyer as non-hazardous.
Supplier shall not subcontract any portion of the Goods or Services to be provided under any Purchase Order, other than that indicated on Supplier's proposal, estimate, quotation, or offer, without the prior written approval of the Buyer.
15. LABOR DISPUTES, PLANT SLOW-DOWN AND STOPPAGES
Whenever an actual or potential labor dispute delays or threatens to delay the performance of any Purchase Order, Supplier shall immediately give notice thereof to Buyer. Such notice shall be confirmed in writing and shall contain all information relevant to the dispute. Supplier shall immediately give written notice to Buyer of any plant slow-down or stoppage at any Supplier’s manufacturing plant or facility, which will cause or threatens to cause delay in the performance of any Purchase Order. Supplier shall give Buyer not less than ninety (90) days prior written notice of any planned plant shutdown.
16. TERM; TERMINATION AND EXCUSABLE DELAYS
16.1 This Terms and Conditions shall be effective as of the date of execution (“Effective Date”) and, unless earlier terminated as provided herein, shall continue in full force and effect for a period of five (5) years (“Initial Term”). This Terms and Conditions shall automatically renew thereafter in five year increments, unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the expiration date.
16.2 Buyer may, by written notice of default to Supplier, terminate any Purchase Order or any part thereof if Supplier (a) fails to deliver the Goods or provide the Services in accordance with the delivery schedule specified therein, or any extension thereof, or otherwise materially breaches any obligation contained in these Terms and Conditions or any Purchase Order and does not cure or begin to cure such failure within a period of ten (10) days after delivery of written notice from Buyer to Supplier; or (b) so fails to make progress as to endanger performance of an order, or (c) a trustee in bankruptcy or receiver or similar entity is appointed for Supplier, or Buyer otherwise determines that Supplier is financially insolvent, in Buyer's reasonable discretion; or (d) Supplier ceases operations or terminates its business.
16.3 In the event of termination pursuant to this Section, Buyer may purchase similar Goods and Services elsewhere or secure the manufacture and delivery of the Goods or the provision of Services by order or otherwise, and recover from Supplier the excess of the purchase price so paid over the purchase price provided herein, plus any incidental or consequential damages, losses, or expenses.
16.4 Excusable delay shall be determined by Buyer at Buyer’s reasonable discretion. No cause shall constitute a basis for excusable delay unless Supplier has notified Buyer in writing of the existence of such cause within ten (10) days from the inception thereof.
17. FORCE MAJEURE
Buyer shall not be obligated to order or accept any Goods from Supplier during such time as Buyer’s operations are disrupted, and neither party hereto shall be liable to the other for delay in performing its obligations hereunder, if such disruption or delay is caused by fire, riot, war, act of God, acts of terrorism, delay of carriers, governmental order or regulation, complete or partial shutdown of plant or any other similar occurrence beyond the reasonable control of the party so disrupted or delayed. If Supplier is unable to perform because of any such causes, it shall provide notice to Buyer of such inability as promptly as is feasible under the circumstances and Buyer may purchase similar Goods elsewhere or secure the manufacture and delivery of the Goods by order or otherwise. Supplier shall provide notice to Buyer of the conclusion of such period or the alleviation of such causes and shall use its best reasonable efforts to resume performance of its relationship with Buyer as quickly as possible.
18. SUPPLIER’S WARRANTIES AND REPRESENTATIONS.
Supplier represents and warrants that:
a. Supplier is a corporation, duly organized, validly existing and in good standing (as such concept is applicable) under the laws of its state of domicile with full power and authority to execute and deliver these Terms and Conditions and to perform its obligations hereunder;
b. These Terms and Conditions have been duly authorized, executed and delivered by Supplier and constitutes a legal, valid and binding obligation enforceable against it in accordance with its terms and no other proceeding on the part of it is necessary to authorize these Terms and Conditions and the transactions contemplated hereby;
c. Neither the execution and the delivery of these Terms and Conditions nor compliance by Supplier with its terms and provisions will violate any provision of the organizational or incorporation documents of Supplier, any contract or agreement to which Supplier is a party or by which it is bound or any law or order;
d. Supplier shall provide Buyer with appropriate written proof of authority as follows:
(1) if Supplier is a corporation, the certificate of Supplier’s corporate secretary attesting to the authority of the individual signing below on behalf of Supplier;
(2) if Supplier is a limited liability company, the certificate of Supplier’s manager or members attesting to the authority of the individual signing below on behalf of Supplier; or
(3) if Supplier is a partnership, the certificate of Supplier’s general partner attesting to the authority of the individual signing below on behalf of Supplier.
19. AMENDMENT; WAIVER
No modification, amendment, waiver or release of any provision of these Terms and Conditions or any Purchase Order or of any right, obligation, claim or cause of action arising hereunder shall be valid or binding for any purpose unless in writing and duly executed by the party against whom the same is sought to be asserted. No waiver by a party of any breach, or the failure of either party to enforce any of the terms and conditions hereunder, shall in any way affect, limit or waive such party's right thereafter to enforce and compel compliance with these Terms and Conditions and any applicable Purchase Orders, or to terminate the parties’ relationship in accordance with the terms hereunder.
The prices for the Goods shall include all federal, state and local sales, use and ad valorem taxes from which Supplier cannot obtain exemption. The amounts of any such tax shall be shown separately on Supplier’s invoice.
21. COMPLIANCE WITH LAWS
Supplier warrants that all Goods and Services supplied hereunder are produced, provided, and priced in compliance with all federal, state, and local laws and regulations.
Supplier may not directly or indirectly assign (voluntarily, involuntarily or by operation of law) any of its rights or delegate any of its duties hereunder without the prior written consent of the Buyer. These Terms and Conditions and any Purchase Orders shall be binding upon and inure to the benefit of the Parties and their legal representatives, successors and assigns.
This Terms and Conditions document may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
The provisions of these Terms and Conditions and any Purchase Orders shall be severable and, if any provision shall be held or declared to be illegal, invalid, or unenforceable, such illegality, invalidity, or unenforceability shall not affect any other provision, and the remainder of these Terms and Conditions and any Purchase Orders, disregarding such invalid portion, shall continue in full force and effect as though such void provision had not been contained herein or therein.
25. NO THIRD PARTY BENEFICIARIES
Nothing contained herein is intended nor shall be construed to confer upon any person or entity, other than the Buyer and Supplier, and their successors or assigns as permitted herein, any rights, remedies, or other benefits hereunder.
These Terms and Conditions and any Purchase Orders set forth the entire understanding of the Parties with respect to the subject matter hereof, there being no oral or other written agreements between them relating to the subject matter hereof, and supersede all prior agreements, understandings, negotiations, commitments or any other writings or communications with respect to such subject matter between the Parties.
All notices and other communications under these Terms and Conditions and any Purchase Orders must be in writing and will be deemed to have been duly given if, and effective as of such time as, it is (a) delivered by hand (with written confirmation of receipt); (b) delivered to the addressee, if sent by a nationally recognized overnight delivery service (receipt requested); or (c) sent by e-mail, provided, that, in the case of notices sent by e-mail, a copy is sent by certified mail, in each case to the street address and e-mail address set forth on the Purchase Order (or to such other addresses or e-mail addresses as a party may designate by written notice to the other party).
Titles to sections and subsections of these Terms and Conditions and any Purchase Orders are solely for convenience of reference and shall not control the meaning or interpretation of any of the provisions.
29. NATURE OF RELATIONSHIP
The parties agree that their relationship is that of Buyer and Supplier only and that Supplier is an independent contractor. Nothing herein or contained in any attachment or amendment hereto shall be construed to place Buyer and Supplier in an employer-employee relationship or a relationship of partners or joint venture partners. These Terms and Conditions and any Purchase Orders do not make either Buyer or Supplier the agent or legal representative of the other for any purpose whatsoever.
30.1 If the Purchase Order is for Goods, Supplier agrees to provide Buyer with a certificate of insurance naming Buyer as an additional insured for product liability coverage, in the amount of One Million Dollars ($1,000,000). Said certificate shall further provide that such insurance required hereunder shall not be canceled or modified in any manner without Buyer receiving ten (10) days prior written notice.
30.2 If the Purchase Order is for Services, Supplier agrees to provide Buyer with a certificate of insurance naming Buyer as an additional insured for general liability coverage in the amount of One Million Dollars ($1,000,000). Said certificate shall further provide that such insurance required hereunder shall not be canceled or modified in any manner without Buyer receiving ten (10) days prior written notice.
31. WAIVER OF SUBROGATION
The Buyer and Supplier and all parties claiming under them, hereby mutually release and discharge each other from all claims and liabilities arising from or caused by any hazard or claim covered by insurance required hereunder or otherwise applicable, to the extent of said insurance coverage, regardless of the cause of the damage or loss.
32. CHOICE OF LAW
These Terms and Conditions and any and all Purchase Orders shall be governed in all respects by the laws of the State of Indiana.
33. CHOICE OF FORUM; JURISDICTION
All disputes, controversies or claims arising out of, or in connection with these Terms and Conditions and/or any Purchase Order, including allegations of fraud, shall be litigated in any federal or state court of competent jurisdiction in the State of Indiana. Supplier hereby accepts jurisdiction of said courts and agrees to accept service of process as if it were personally served within the State of Indiana.
34. ATTORNEYS’ FEES.
In the event that either party shall bring any action upon any default in performance or observance of any covenant herein, the prevailing party may recover reasonable attorneys’ fees in addition to whatever remedies may be available to it.