Standard Purchase Order Terms and Conditions
Effective as of July 14, 2020
The following definitions shall be used for the purpose of interpreting the Purchase Order and these Purchase Order terms and conditions:
“Buyer” means GMI Corporation, acting through its representatives who are authorized to purchase the goods or services covered by the Purchase Order for GMI Corporation.
“Supplier” means the person or entity named in the Purchase Order that is bound to supply and deliver the Goods or Services to Buyer.
“Purchase Order” is an agreement between Buyer and Supplier which includes these terms and conditions, the purchase order form, and any special conditions or attachments listed in or attached to the purchase order form.
“Goods or Services” means machinery, tools, equipment, materials, services and other items to be supplied, delivered or performed by Supplier in accordance with the Purchase Order.
Upon receipt of this Purchase Order, Supplier shall check it for discrepancies. This Purchase Order will be deemed accepted by the Supplier if Supplier signs it, delivers to Buyer any letter, form, email, fax or other writing or instrument acknowledging acceptance, delivers Goods or Services under it, or allows the passage of five (5) days after Supplier’s receipt of the Purchase Order without written notice rejecting the Purchase Order to Buyer. By acceptance of this Purchase Order, Supplier agrees to be bound by, and to comply with, all of the terms and conditions of this Purchase Order.
QUALITY & INSPECTION
Certificates of Conformance or Analysis are required to be provided to Buyer with each shipment if stated on the specification or Purchase Order. Specifications will be provided, and all Goods and Services shall comply with all applicable requirements, including DFARS, REACH, and RoHS requirements where applicable or as stated on the specification or PO. See Section 12, Compliance Law. Supplier agrees to promptly notify Buyer if the Supplier intends to make any changes in material and/or manufacturing processes, including production facility changes. Buyer will advise acceptance of any changes prior to manufacture or delivery of goods or services.
Buyer may, at any time during the course of manufacturing process or otherwise, inspect any Goods to be supplied (subject to Buyer giving Supplier reasonable notice of such inspection). Inspection by Buyer shall neither relieve Supplier of its obligations under the Purchase Order nor waive Buyer’s rights or remedies under the Purchase Order or applicable law.
DELIVERY, FREIGHT TERMS, AND PACKAGING
Supplier shall deliver the Goods and/or perform the Services on the due date(s) specified in the Purchase Order. The due date(s) on the Purchase Order represent the delivery date at the Buyer’s address as specified on the Purchase Order. Timely delivery is of the essence, and Supplier delivery performance will be subject to zero days late and up to 5 days early tolerance. If Supplier is unable to fulfill the Purchase Order on the due dates specified, the Supplier agrees to notify Buyer at least five (5) days prior to the scheduled due date, at which time, the Buyer will advise Supplier as to whether it accepts any proposed changes in the delivery dates. If the Supplier fails to deliver the Goods or Services in full as agreed, Buyer may terminate the Purchase Order immediately and Supplier shall indemnify Buyer against any losses, damages, and reasonable costs and expenses attributable to Supplier’s failure to deliver in a timely manner.
Unless otherwise specified, freight terms shall be FOB Shipping Point, Prepaid and Add. The packing slip must include Purchase Order number, Buyer’s Part Number and Revision Level. Supplier shall notify Buyer if there is any variance in the quantity to be shipped versus the quantity ordered prior to the shipment being made.
All Goods must be packaged in the manner specified by Buyer and shipped in the manner and by the route and carrier designated by Buyer. If Buyer does not specify the manner in which the goods must be packaged, Supplier shall package the goods so as to avoid any damage in transit. If Buyer does not specify the manner of shipment, route or carrier, Supplier shall ship the goods at the lowest possible transportation rates, consistent with Supplier’s obligation to meet the delivery schedule set forth in this Purchase Order. If expedited shipping is required to meet the Buyer due date, the difference in cost of the expedited freight versus ground shipping will be the responsibility of the Supplier. Only the ground shipment cost should be added to the invoice from the Supplier.
Supplier warrants to Buyer that for a period of twelve (12) months from the delivery date, all Goods and Services will: (a) be free from defects in workmanship, material and design; (b) conform to applicable specifications; (c) be merchantable, fit for their intended purpose and operate as intended; (d) be free and clear of all liens, security interests or other encumbrances; and (e) not infringe or misappropriate any third party’s intellectual property rights. Supplier shall (at the option of Buyer) either replace or repair and make good any Goods or parts of Goods supplied by it found to be defective or in any way unsuitable for the purpose intended. If Supplier repairs or replaces Goods during the initial 12 month period, then those Goods repaired or replaced have a further warranty for a period of twelve (12) months from the date such repairs or replacements were completed and delivered to Buyer.
Invoices shall be sent after each shipment is completed and shall contain the Purchase Order number, item number, description of goods or services, quantities, unit prices, and total purchase price. All taxes or freight charges shall be stated separately. Payment shall be made within 30 days unless specified differently on the Purchase Order or other contractual agreement, except for any amounts disputed by Buyer in good faith. The parties shall seek to resolve all such disputes expeditiously and in good faith. Supplier shall continue performing its obligations under the Purchase Order notwithstanding any such dispute. Without prejudice to any other right or remedy, Buyer reserves the right to set off any amount owing to it by Supplier against any amount payable by Buyer to Supplier. Payment of an invoice is not evidence or admission that the Goods or Services meet the requirements of the Purchase Order.
Purchase Orders may be cancelled by Buyer, either in whole or part, only with Supplier’s prior consent and upon such terms and conditions that will protect Supplier against all losses, including without limitation cancellation charge comprising all costs and expenses incurred by Supplier in processing the releases on the Purchase Order to the date of cancellation. If any Goods sold hereunder must be manufactured especially for Buyer to meet Buyer’s particular specifications or requirements, and such Purchase Order is cancelled by Buyer, Buyer will take delivery of and make payment for such goods as have been either completed or are in the process of manufacture on the date notice of suspension or cancellation is received by Supplier not to exceed 90 days of scheduled releases.
Neither party shall be liable to the other for any delay or failure in performing its obligations under the Purchase Order to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party’s fault or negligence, and which by its nature could not have been foreseen by such party (“Force Majeure Event”). Force Majeure Events include, but are not limited to, acts of God or the public enemy, government restrictions, floods, fire, earthquakes, explosion, epidemic, war, invasion, terrorist acts, riots, strike, or embargoes. Supplier’s economic hardship or changes in market conditions are not considered Force Majeure Events. Supplier shall use all diligent efforts to end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized and resume performance under the Purchase Order. If a Force Majeure Event prevents Supplier from performance for a continuous period of more than fifteen (15) business days, Buyer may terminate this Purchase Order immediately by giving written notice to Supplier.
USE OF SUBCONTRACTORS
Supplier may subcontract any of its obligations under this Purchase Order to a subcontractor provided that the Supplier shall remain at all times primarily responsible for the acts and omissions of any such subcontractor and shall retain any such liability and responsibility under this Purchase Order as if such subcontracted activities were performed by Supplier.
All non-public, confidential or proprietary information of the Buyer, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, pricing, discounts or rebates, disclosed by Buyer to Supplier, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the Purchase Order is confidential, solely for the use of performing the Purchase Order and may not be disclosed or copied unless authorized by Buyer in writing. Upon Buyer’s request, Supplier shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) rightfully and legally known to the Supplier at the time of disclosure; or (c) rightfully and legally obtained by the Supplier on a non-confidential basis from a third party. Any confidentiality agreement already in force at the time of this Purchase Order will supersede, where applicable, the information stated above.
All matters arising out of or relating to this Purchase Order shall be governed by and construed in accordance with the internal laws of the state of Indiana as identified in the address for the Buyer on the Purchase Order, excluding its choice or conflict of law rules. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the federal and/or state, provincial or territorial courts in the state, province or territory identified in the address for the Buyer on the Purchase Order and the courts of appeal from them.
It is the policy of GMI Corporation that its business shall be conducted in accordance with all applicable laws of the United States and foreign jurisdictions, and in a manner that will always reflect a high standard of ethics. Seller represents and warrants that the Products to be furnished under this Order shall be manufactured, sold and used in full compliance with all relevant U.S. Federal, State and foreign laws and regulations, including, but not limited to, the following as may be amended from time to time: a) conflict minerals laws, Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act; b) EU Directive 2011/65/EU and its amendment 2015/863/EU, restriction of Hazardous Substances (RoHS); c) Regulation (EC) 1907/2006 of the European Parliament, Registration, Evaluation, Authorization and Restriction of Chemicals (REACH); provisions of the Federal Acquisition Regulations (“FAR”) and Defense Federal Acquisition Regulations (“DFARS”) per 48 CFR, Chapters 1 & 2 as applicable.
Buyer is an equal opportunity employer and federal contractor or subcontractor. Consequently, the Parties agree that, as applicable, they will abide by the requirements of 41 CFR 60-1.4(a), 41 CFR 60-300.5(a) and 41 CFR 60-741.5(a) and that these laws are incorporated herein by reference. These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. These regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability. The Parties also agree that, as applicable, they will abide by the requirements of Executive Order 13496 (29 CFR Part 471, Appendix A to Subpart A), relating to the notice of employee rights under federal labor laws.”
Supplier represents and warrants that neither it, nor any authorized subcontractors or sub-suppliers are engaged in or condoning of the participation in human trafficking activities and are in compliance with all applicable federal, state and foreign labor regulations, including, but not limited to, the Trafficking Victims Protection Act of 2000 (22 U.S.C. chapter 78), E.O. 13627, or any other applicable law or regulation establishing restrictions on trafficking in persons, the procurement of commercial sex acts, or the use of forced labor.