This order is Buyer’s offer to purchase the goods and/or services described on the face of the order from Seller. Buyer’s placement of this order with Seller is expressly conditioned upon Seller’s acceptance of all of the terms and conditions of purchase contained on or attached to this order. Any additional or different terms or conditions which may appear in any communication from Seller are hereby expressly objected to and shall not be effective or binding unless specifically agreed to in writing by Buyer’s Purchasing Department, and no such additional or different terms or conditions in any printed form of Seller shall become part of this contract despite Buyer’s acceptance of goods or services, unless such acceptance specifically recognizes and assents to their inclusions. Any objection by Seller to the terms and conditions hereof shall be ineffective unless Buyer is advised in writing thereof within ten days of the date of this order. Seller accepts this order and forms a contract by shipment of any goods or performance of any work/services under this order.
All goods purchased hereunder are subject to Buyer’s inspection and approval. Goods rejected by Buyer for whatever reason shall be held, transported and/or stored at Seller’s sole expense. Seller shall promptly reimburse Buyer for any such expenses.
Buyer reserves the right to cancel all or any part of this order if shipment is not made as specified, or at any time for its sole convenience. Buyer may terminate all or part of this order in the event of any breach by Seller under this order.
Packing List must be furnished with each shipment, clearly indicating customer part and purchase order numbers.
Seller shall provide insurance coverage certificate, in amounts and types acceptable to Buyer, naming Buyer as an additional insured.
All invoices, packages, shipping notices, instruction manuals and other written documents affecting this order shall contain the applicable order number. Packing lists shall be enclosed in each box or package shipped pursuant to this order, indicating the contents therein. Invoices will not be processed for payment until all items invoiced are received.
Seller warrants goods supplied and work or services performed under this order conform to specifications herein and are MERCHANTABLE and fit for the particular purposes for which goods are ordinarily employed. Seller further warrants to the Buyer and to any third party ultimately using any item whether such third party is a customer of Buyer or not, that all items delivered under this order will be free from defects in material and workmanship and will conform to applicable specifications, drawings, samples and descriptions. If Seller is responsible for design of items, Seller warrants that all items delivered under this order will be suitable for use by Buyer, including installation by Buyer in its ultimate products. Buyer’s written approval of designs furnished by Seller shall not relieve Seller of its obligations under this warranty. Seller shall be liable for all damages both to Buyer and its customers incurred as a result of any defect or breach of warranty in any time covered by this order. The forgoing express warranties shall be in addition to any warranty customarily made by Seller of its product and any implied warranties and shall be construed as conditions as well as warranties. SELLER’S WARRANTY SHALL EXTEND FOR A PERIOD OF 12 MONTHS AFTER THE ITEM IS DELIVERED AND ACCEPTED BY BUYER AND APPLIED TO ITS INTENDED USE. Where Buyer incorporates that item into a product of Buyer’s to be delivered to its customer, Seller’s obligation under this clause shall be for the benefit of Buyer’s customer and shall extend to one year after application of the item to its intended use. The warranties represented and covenants of parties hereto shall survive the delivery of the goods or completion of the work or services provided and be fully enforceable thereafter. Seller’s warranty hereunder is part consideration for this order; any payment by Buyer hereunder is conditional upon this warranty remaining in effect; and no modification or other change of this warranty shall be valid unless evidenced by Buyer’s written change order.
By acceptance of a tooling purchase order, SELLER agrees that Magnetek is the sole, undisputed owner of the design and tooling of all product(s). All new tooling becomes the property of Magnetek and is to be maintained by SELLER. Magnetek retains title to all tooling and is entitled to possession upon demand. Magnetek does not grant security interests or liens against its tooling, and will not authorize any withdrawal charges of the tooling of any type. Normal maintenance and repair of the tooling will be the responsibility of the SELLER.
If price is not stated on this purchase order, it is agreed that the goods or services shall be billed at the price last quoted, or paid by a customer of seller, or the prevailing market price, whichever is lower.
Liens, Claims and Encumbrances
Seller warrants and represents that all the goods will, when delivered hereunder, be free and clear of all liens, claims or encumbrances of every kind. Title and risk of loss shall pass upon delivery of the goods.
Infringements; Compliance with Laws
Seller warrants that Buyer’s purchase, installation, and/or use of the goods covered hereby will not result in any claim of infringement, or actual infringement of any patent, trademark, copyright, franchise, or other intellectual property right. Seller warrants that the goods/services provided, and Seller’s performance under this order, shall be in compliance with all applicable laws. Seller shall indemnify and hold Buyer harmless from and against all claims, losses, expenses, damages, causes of action and liabilities of every kind and nature, including without limitation reasonable attorneys’ fees (without waiver of Seller’s obligation to indemnify Buyer hereunder), arising from or out of any breach of the foregoing warranties.
The Seller recognizes, consistent with the public policy underlying enactment of the Conflict Minerals provision (Section 1502) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Act”), the significant legal and non-legal risks associated with sourcing tin, tantalum, tungsten and gold (the “Conflict Minerals”) from the Democratic Republic of the Congo and adjoining countries (“DRC countries”). Accordingly, the Seller commits to assist Buyer in its compliance with Section 1502 of Dodd-Frank and its implementing regulations. In particular, the Seller commits to have in place a supply chain policy and processes to undertake (1) a reasonable inquiry into the country of origin of Conflict Minerals incorporated into products it provides Buyer; (2) due diligence of its supply chain, as necessary, to determine if Conflict Minerals sourced from the DRC countries directly or indirectly support unlawful conflict there, and (3) risk assessment and mitigation actions necessary to implement the country of origin inquiry and due diligence procedures. The Seller agrees to timely respond to information requests from Buyer regarding the uses and sources of Conflict Minerals in its products including information about Conflict Minerals that are recycled or scrap. The Seller shall take all other measures as are necessary to comply with the Act and its implementing regulations, as they may be amended over time.
Seller shall adopt and comply with a policy statement or code of conduct regarding business ethics (“Code”). This Code will be suitable for Seller’s business and as a minimum will require compliance with all applicable laws and regulations. This provision creates no additional duties for Buyer with respect to Seller and confers no rights on third-parties. ADDITIONALLY, SELLER SHALL COMPLY, AND TAKE REASONABLE STEPS TO INSURE THAT ITS SUPPLIERS AND SUBCONTRACTORS COMPLY, WITH BUYER’S CODE OF BUSINESS CONDUCT AND ETHICS, WHICH IS INCORPORATED HEREIN BY REFERENCE. The Buyer’s Code of Business Conduct and Ethics is located on the Buyer’s website at: http://www.magnetek.com/ Seller warrants that it has not, and will not, either directly or indirectly, offer or give to any employee or representative of Buyer, or any third party including government entities and officials, any gift, entertainment, gratuity, money or other thing of value, with a view toward influencing such person in connection with any order of Buyer. Any breach of this provision or Buyer’s Code of Business Conduct and Ethics shall constitute a material breach of each and every contract between Buyer and Seller.
All goods shall be shipped FOB shipping point (Incoterms 2000), unless otherwise agreed. Buyer’s purchase order(s) will specify Buyer’s preferred carrier. Noncompliance by Seller to these shipping instructions will result in freight back-charges to the Seller. Buyer reserves the right to reject C.O.D. shipments. Seller shall not insure the goods for Buyer’s account during shipment except upon Buyer’s written request, or where the shipping mode is parcel post. Time is of the essence under this order.
Equal Opportunity/Affirmative Action
For purchase orders originating from, or goods/services received from the United States, the Seller will comply with all provisions of Executive Order 11246, as amended; the provisions found in 41 C.F.R. Section 60-741.4 (Handicapped Persons) and Section 60-250.4 (Veterans); and all relevant rules, regulations, and orders of the Secretary of Labor.
This purchase order shall be governed by and construed in accordance with the laws of the State of Wisconsin, U.S.A., without reference to principles of conflicts of laws. This purchase order and the purchase of goods and/or services by Buyer from Seller shall not be governed by the provisions of the U.N. Convention on Contracts for the International Sale of Goods and the U.N. Convention or the Limitation Period in the International Sale of Goods, as amended, which are hereby excluded by Buyer and Seller.