STANDARD PURCHASE ORDER MASTER TERMS AND CONDITIONS
These Standard Purchase Order Master Terms and Conditions (hereinafter, “Terms and Conditions”) apply to each purchase order (hereinafter, ”Purchase Order”) issued by Dometic Corporation, its subsidiaries and affiliates (including its wholly owned subsidiary Atwood Mobile Products LLC) (collectively, “Buyer”), including any Purchase Order placed electronically or through a third party, to any provider of goods or services (hereinafter, “Supplier”). For the purpose of these Terms and Conditions, the term “Purchase Order” shall include any underlying agreement between Buyer and Supplier under or related to which any Buyer purchase order may be issued, as well as any appendices or attachments thereto.
Any Purchase Order issued by Buyer to Supplier is placed subject only to these Terms and Conditions. Any additional or inconsistent terms proposed by Supplier, including via Acknowledgement, Invoice, email, or by any other means, will not be binding on Buyer unless expressly agreed to in a writing signed by an authorized representative of Buyer’s Purchasing Department. These Terms and Conditions shall prevail over any contrary or inconsistent terms in any invoice or acknowledgement or other writing from Supplier. Any additional or inconsistent terms however communicated by Supplier, including but not limited to terms in any acknowledgment or invoice, shall be deemed objected to by Buyer without need of further notice of Buyer’s objection.
Supplier shall furnish the goods and services at the prices stated in the Purchase Order. Any change in the stated price will be effected by an amendment to that Purchase Order as issued by Buyer. If the Purchase Order is placed on an open price basis, them the price shall not be higher than Supplier’s lowest prevailing price on the date of that Purchase Order for similar goods or services in comparable quantities.
Supplier may not assign a Purchase Order without the prior written consent of Buyer, except that claims for monies due or to become due may be assigned by Supplier, provided that Supplier shall supply Buyer promptly with two copies of any such assignment. Payment to an assignee will be subject to set off or recoupment against any claims(s) which Buyer may have against Supplier, whether such claim(s) arise before or after the assignment. Buyer reserves the right to make direct settlement or adjustments in price with Supplier without notice to any assignee. A provision setting forth these rights of Buyer shall be included in any assignment by Supplier.
Except for goods proprietary to Supplier, none of the work to be performed pursuant to a Purchase Order may be subcontracted without Buyer’s prior written consent. However, Supplier’s obtaining parts and materials normally purchased by Supplier shall not be construed as a subcontract.
5. FACILITIES; SPECIAL TOOLS AND EQUIPMENT
Supplier shall procure all facilities necessary for the timely performance of a Purchase Order. Except as provided in Section 6, all special tools and equipment (e.g. dies, patters, jigs, molds, and fixtures) shall be furnished by, and at the sole expense of, Supplier and shall be kept in good condition for follow-on orders, and when necessary, shall be replaced by Supplier without expense to Buyer.
6. BUYER’S PROPERTY AND INSURANCE
(a) All material (e.g. raw stock, components) and all special tools and equipment furnished by Buyer to Supplier shall remain Buyer’s property. In addition, all special tools and equipment either (i) identified as a reimbursable item in the Purchase Order, or (ii) specifically acquired for performance of a Purchase Order with the cost being fully amortized or otherwise recovered in the price of the goods to be delivered, shall, upon such amortized payment being made by Buyer, become Buyer’s property. All of Buyer’s property shall be (i) used only in filling orders for Buyer, (ii) kept segregated and clearly marked as Buyer’s property, (iii) maintained in good condition (allowing for normal wear and tear), (iv) surrendered to Buyer upon demand. Supplier shall not be responsible for replacing bailed material satisfactorily accounted for and used in the manufacturing process for buyer’s account.
(b) While Buyer-owned property is in Supplier’s possession or control, Supplier will be responsible for all loss or damage and will, at its sole expense, maintain extended insurance coverage in an amount sufficient to cover replacement cost.
7. PACKAGING AND SHIPPING
Supplier will pack all goods for shipment to Buyer so as to secure safe delivery and ship at the lowest transportation rates to minimize costs unless otherwise stated in the Purchase Order. No charge will be allowed for packing, crating or carriage unless stated in the Purchase Order. Each container must be marked to show Buyer’s order number, and a packing sheet showing order number, Buyer’s part number, and full product description of each item, must be included in each package single unit unless other instructions are provided by Buyer. Supplier will insure the declared value on any shipment that is F.O.B. Origin. Supplier will honor all routing instructions, which may be indicated on the Purchase Order, on file with Supplier, or communicated verbally by Buyer.
Individual invoices referencing Buyer’s order number, Buyer’s part number, and full product description of each item, must be issued for each shipment applying against a Purchase Order. Freight and other changes must be shown if discount is not allowed on the full amount of invoice. Discount privilege will apply from date of scheduled delivery, the date of receipt of the goods or services, or the date of receipt of a proper invoice, whichever is later. Buyer shall pay undisputed and properly issued invoices sixty (60) days from the date of invoice, unless otherwise agreed in writing.
The time of delivery stated in the Purchase Order is of the essence for all Purchase Orders. The time specified is for delivery at Buyer’s plant unless otherwise stated in the Purchase Order. Delivery shall not be deemed complete until receipt and acceptance by Buyer, notwithstanding delivery to any carrier. If deliveries fail to meet the schedules specified in the Purchase Order, Buyer may require Supplier to make express shipments, partial shipments, or both, and Supplier will assume all excess shipping charges. Parts fabricated beyond Buyer’s requirements are at Suppliers risk and expense. Invoices for goods shipped ahead of schedule will not be paid until their normal maturity after the date specified for delivery.
10. INSPECTION AND ACCEPTANCE
All goods and services will be subject to final inspection and acceptance by Buyer, notwithstanding prior payment, which shall not constitute acceptance. Buyer may inspect goods and services during or after manufacture or performance, notwithstanding the terms of delivery or payment or that title has not yet passed to Buyer. Buyer’s approval of designs furnished by Supplier shall not release Supplier of its obligations under the Purchase Order or as contained herein. Buyer may reject and return at Supplier’s expense any item which does not conform to Buyer’s Purchase Order, or which is otherwise defective or not in compliance with any or all of Supplier’s warranties (express or implied). After notification to Supplier that goods are nonconforming, or are rejected, or regarding which acceptance has been revoked by Buyer, all risk of loss with respect to such goods shall be Supplier’s. Acceptance of any part of a Purchase Order shall not bind Buyer to accept future shipments or services and shall not be deemed a waiver of Buyer’s right to terminate in whole or in part any issued Purchase Order, or to revoke acceptance of, or to return, (for full credit, or for full refund if already paid for) nonconforming or defective goods. Such remedies shall be in addition to any other remedies available to Buyer.
(a) By written Change Order, Buyer may at any time unilaterally (i) suspend Supplier’s work or fulfillment in whole or in part, and/or (ii) make changes in one or more of the following elements: designs, drawing, or specifications; method of shipment or packing; place or time of delivery; or quantities to be furnished; however, any acceleration in the delivery rate requires Supplier’s advance consent. If such suspension or changes cause an increase or decrease in the cost of, or the time required for furnishing, the work or products, which are, at the time of suspension or changes, the subject of a substantially completed Purchase Order as determined by Buyer, an equitable adjustment shall be made in the Purchase Order price, delivery schedule, or both. In addition, see 12(b) below. However, if the price or schedule adjustment is not included in a written Change Order issued by Buyer, no increase in price or delay in delivery will be allowed unless Supplier asserts such a claim in writing within 30 days from the date of the Change Order, to be followed as soon as practicable with a specification of the claim and supporting data. This Section shall not excuse Supplier from proceeding without delay in performing a Purchase Order as changed.
(b) At any time Buyer deems itself insecure with respect to Supplier’s continued or future performance of any issued or open Purchase Order, Buyer may suspend its own performance of any past, present or future Purchase obligations until such time as Supplier, upon notice thereof and demand from Buyer, is able to provide Buyer with adequate assurance of Supplier’s ability to duly perform such open or future Purchase Order(s); further Buyer shall have the right, absent receiving such adequate assurance of performance from Supplier in a timely manner (not to exceed ten (10) days) to consider Supplier as having repudiated any and all related contracts between them.
(b) Technical assistance or advice offered by Buyer shall not constitute a change under this Section or waiver of Supplier’s existing obligations. Any change, waiver, or amendment to a Purchase Order must be in writing and signed by an authorized representative of Buyer’s Purchasing Department.
(a) For cause: Buyer reserves the right to terminate a Purchase Order, or any part thereof, and to cancel all of or part of the undelivered portion of a Purchase Order, by written notice to Supplier, if Supplier (i) fails to deliver the goods or services by the time specified in the Purchase Order; (ii) fails to deliver goods or services that meet the required specifications, or otherwise materially breaches any of the terms of the Purchase Order, including the warranties; (iii) fails to make progress in the work such that Buyer deems itself insecure as to Supplier’s performance, and so notifies Supplier (see 11(b) above); (iv) becomes insolvent; (v) files a voluntary petition in bankruptcy; (vi) becomes the subject of an involuntary petition to have Supplier declared bankrupt, unless the petition is vacated within thirty days after filing; or (vii) executes any assignment for the benefit of creditors. Buyer shall have no obligations to Supplier in respect of any Purchase Order which has been cancelled by Buyer in accordance with this Section, and Buyer’s liability shall be limited to payment for the delivered portion of the Purchase Order (but only with respect to conforming and non-defective goods or services) at the rate specified on the face thereof (reflecting quantity prices as though the Purchase Order had gone to full completion). If as a result of any of the foregoing Buyer terminates a Purchase Order in whole or in part and Buyer procures any substitute goods or services elsewhere, then Supplier will be liable to Buyer for any re-procurement charges, including incidental and consequential damages, which exceed the amount which would have been due if Supplier had satisfactorily completed the Purchase Order. These remedies shall be cumulative and additional to any other remedies available to Buyer.
(b) For convenience: Buyer may, for its convenience, terminate work under the Purchase Order in whole or in part at any time by giving notice to Supplier in writing. Supplier will thereupon immediately stop work on the Purchase Order referenced or the terminated portion thereof and notify any subcontractors to do likewise. Supplier will be entitled to: (i) reimbursement for its actual costs incurred up to and including the date of termination, such costs to be determined in accordance with recognized accounting principles, and (ii) a reasonable profit on the work done prior to termination at a rate not exceeding the rate used establishing the original purchase price; provided, however, if it appears Supplier would have sustained a loss on the Order, no profit shall be allowed and reimbursement of costs shall be adjusted to reflect the indicated rate of loss. In no event shall Buyer’s obligations as a consequence of the termination exceed the Purchase Order Price of the items terminated. At its election, Buyer shall have the right to direct the disposition of work-in-process, parts and materials included in Supplier’s reimbursed costs; Supplier will comply with and be reimbursed for reasonable expenses incurred in effecting Buyer’s directions. Prior to settlement of Supplier’s termination claim, Supplier shall make available for inspection (i) all inventory included in the claim, and (ii) all directly pertinent books, records and documents relating to claimed costs.
(c) If a Purchase Order is totally or partially terminated by a “for cause” notice and it is determined that Supplier’s failure is an excusable failure or delay as defined below, then such notice shall be deemed to have been issued “for convenience” and the rights of the parties shall be governed by paragraph (b) above.
13. SUPPLIER LIABILITY FOR DEFAULTS, FAILURES OR DELAYS OF SUBCONTRACTORS
Supplier shall be liable for failures or delays caused by the default, failure or delay of a Supplier subcontractor; if the goods or services to be furnished by the subcontractor are obtainable from other sources in time to permit Supplier to meet the Purchase Order requirements Supplier shall have the obligation to obtain same from other sources or face full liability to Buyer. In all events of defaults, failures or delays of Supplier or its Subcontractors, Supplier shall give immediate written notice to Buyer, setting forth the cause when Supplier has reason to believe that deliveries will not meet the schedule.
14. GENERAL INDEMNIFICATION/INSURANCE
(a) Supplier shall protect, defend, indemnify, and hold harmless Buyer from and against any claims, suits, losses, costs, expenses, damages, or liability, including without limitation for Buyer’s reasonable attorneys’ fees, court costs and associated legal expenses, incurred on account of, or arising from or occurring in connection with the goods and services purchased from Supplier or Supplier’s negligence, willful misconduct or breach of these Terms and Conditions or from any and all allegations or claims of bodily injury, death, or property damage resulting from (i) any act or omission of Supplier (including its agents, employees and subcontractors) in the course of performing the Purchase Order, supplying Products, or in relation to any other agreement with Buyer or; (ii) any Supplier Product or service, or (iii) the handling, display, sale, use, consumption or distribution by Buyer or Buyer’s customers of Supplier’s Products or service (including, without limitation, any express or implied warranties made by Supplier).
(b) Supplier shall keep in full force and effect at all times, a public liability insurance policy or policies with coverage for both Products and completed operations, containing blanket and broad form contractual and general liability coverage insuring the above obligations under14(a) and insuring all written contracts of Supplier, and naming Buyer as an Additional Insured, which such insurance shall be primary over any other insurance which Buyer may have, and shall be written by an insurance carrier acceptable to Buyer in aggregate amounts required by Buyer which shall not be less than $2 million per occurrence, combined single limit, for bodily injury and property damage, and Supplier will deliver to Buyer a completed certificate of insurance on standard Acord forms approved by Buyer and signed by an authorized representative of Supplier’s insurance carrier(s) certifying that such insurance coverage has been issued, is in full force, naming Buyer as an Additional Insured, and that if such insurance is cancelled or changed so as to affect the coverage, at least thirty (30) days prior written notice of such cancellation or change will be sent to Buyer.
15. PATENTS AND TRADEMARKS
(a) Supplier agrees to indemnify and hold harmless Buyer, its customers, and agents from and against any and all claims, suits, losses, costs, expenses, damages, or liability, including without limitation for reasonable attorneys’ fees, court costs and associated legal expenses, incurred on account of, or arising from, any and all allegations or claims of any alleged infringement, misuse, or misappropriation of any patent, trademark or copyright with respect to Products furnished by Supplier to Buyer provided that such Products, and, if applicable, their packaging, are not manufactured pursuant to Buyer’s sole design and specification. Supplier also agrees that it will, at its own expense, defend any action or claim, whether against Buyer or its customers, in which such infringement, misuse or misappropriation is alleged provided Supplier is duly notified as to such action or claim. If a delivered item or any part thereof is held to constitute an infringement and its use is enjoined, Supplier shall, at its own expense, either procure for Buyer the right to continue using the item or replace same with a non-infringing item or modify the item so that it becomes non-infringing, or if the foregoing options are not possible, grant Buyer a credit for the purchase price of such item.
(b) Where performance under a Purchase Order includes experimental, developmental, or research effort and such work is paid for in whole or in part as such by Buyer, Supplier agrees to disclose to Buyer all processes, know-how, or trade secrets resulting therefrom and on request, to assign Buyer each invention and property right resulting therefrom.
Supplier expressly warrants to Buyer (and its assigns), cumulatively, that all goods furnished under a purchase Order will, at the very least: (i) be free from defects in materials and workmanship, (ii) conform to applicable specifications and drawings signed off on by Buyer, and also to any samples or other descriptions including test results provided to Buyer by Supplier, (iii) be free from defects in design except to the degree such goods are manufactured to Buyer’s sole models design specification, (iv) be suitable for Buyer’s intended purpose, (v) be of merchantable quality, and (vi) be free of defects in title. Supplier further warrants that all services performed under a Purchase Order will be free from defects of workmanship. Supplier shall at its sole cost and expense, and at Buyer’s sole option, repair, replace, or refund the purchase price of any Products sold to Buyer with respect to which any of these warranties is breached. In addition to these or any other remedies available to Buyer, it shall have the right, but not the obligation, and is hereby granted the royalty-free license to make or have made any and all Products until such time as Supplier shall have established a reliable chain of supply of non-defective or non-conforming Products. These warranties and remedies shall be cumulative and non-exclusive and shall remain in effect for a period of time consistent with the warranty life normally offered by Supplier, but in no event shall same be for a period of less than three (3) years from date of claim of defect by Buyer.
17. NOTICE OF LABOR DISPUTES
Supplier shall immediately give notice to Buyer of any labor dispute which threatens to delay the timely performance of the Purchase Order.
18. COMPLIANCE WITH APPLICABLE LAW AND BUYER’S CODE OF CONDUCT
(a) Supplier hereby certifies that all goods and services will be furnished in compliance with all applicable Federal, State and local laws, including but not limited to, the Fair Labor Standards Acts, the Occupational Safety and Health Act (OSHA), the Toxic Substance Control Act, that all products are “DRC Conflict Free” and to its knowledge, the laws and regulations of any country where the products are manufactured have been complied with, and further that (i) it is not aware that such sources are in any way engaged in human trafficking and slavery; (ii) it will, if asked by Dometic, request its sources to confirm same are in compliance with standards for preventing human trafficking and slavery; (iii) that materials incorporated into Supplier’s products are believed to comply with laws regarding human trafficking and slavery; and (iv) Supplier will train its own procurement staff if necessary in order to mitigate risks of purchasing from companies which may be in violation of laws regarding human trafficking and slavery. Supplier will comply with all provisions of Executive Order 11246 (Equal Employment Opportunity), as amended, and all implementing rules and regulations. Supplier agrees to protect, defend, indemnify and hold harmless Buyer from and against any fines, penalties, storage fees, seizures, detentions, forfeitures and reasonable attorney’s fees that may be imposed, assessed or incurred as the result of Supplier’s or its subcontractor’s failure to comply with any laws or regulations.
(b) For all international shipments of Products pursuant to a Buyer Purchase Order, Supplier shall provide commercial invoices and packing slips with accurate and detailed descriptions of Products and accurate prices, as this information will be needed for customs clearance. All Products to be imported into the United States shall be marked in a conspicuous and legible manner, with the country of origin clearly noted. Furthermore, for any international supply of products, the parties disclaim the applicability of the Convention on the International Sale of Goods, such that the applicable UCC provisions shall apply to all transactions.
(c) Without limiting its obligations under any other provision of this Purchase Order, the Supplier agrees to comply with the Dometic Group Code of Conduct (available at any time upon request), as the same is published from time to time by Dometic, and as may appear from time to time on a Dometic URL public link (see currently dometic.com/codeofconduct).
(a) Supplier will treat as confidential all specifications, drawings, blueprints, and other technical data supplied by or on behalf of Buyer. Supplier further agrees to (i) limit use of the aforementioned data to the performance of the specific Purchase Order, and (ii) limit disclosure to those employees necessary for the performance of the Purchase Order, unless prior written consent has been granted by the Buyer to permit other use or disclosure. Supplier shall upon Buyer’s request or upon completion of the Purchase Order promptly return all data supplied by Buyer and destroy any and all copies.
Supplier shall not advertise a Purchase Order or any part of it without Buyer’s Approval.
Buyer shall not be liable for any Federal, State or local taxes unless separately stated on a Purchase Order and billed as a separate item. No sales or use tax shall be added when an exemption is indicated on the face of a Purchase Order or an exemption certificate is supplied by Buyer.
22. GOVERNING LAW
A Purchase Order shall be construed in accordance with, and governed by, the substantive laws of the State of Buyer’s business address without regard to the principles of conflict of laws thereof.
23. NON- WAIVER OF RIGHTS
The failure of Buyer to insist upon strict performance of any of these Terms and Conditions with respect to a Purchase Order or to exercise any rights or remedies shall not be construed as a waiver of Buyer’s rights.
24. ENTIRE AGREEMENT
These Terms and Conditions are intended by the parties as a final expression of their agreement, contain the entire understanding of the parties with respect to all Purchase Orders, supersede all prior agreements and understandings, oral or written, with respect to such matters and are a complete and exclusive statement of the terms thereof.
The headings at the beginning of each numbered section hereof have been inserted for ease of reference only and will not affect in any way the meaning or interpretation of these Terms and Conditions.
26. WAIVER AND AMENDMENT
No provision of these Terms and Conditions may be waived or amended with respect to a particular Purchase Order unless in a written instrument signed, in the case of an amendment, by Buyer and that expressly states it is amending these Terms and Conditions, or, in the case of a waiver, by the party against whom a waiver of any such provision is sought provided that such waiver expressly references these Terms and Conditions.
September 17, 2019