Terms and Conditions of Sale

Winsupply Inc. and each of its subsidiaries and locally operated companies are hereinafter collectively referred to in these Terms and Conditions of Sale (“Terms”) as “Winsupply” and the customer or person or entity purchasing goods or services (collectively referred to as “Goods”) from Winsupply is referred to as the “Buyer.” Buyer acknowledges that these Terms along with any attachment, price list, schedule, quotation, acknowledgment, or invoice from Winsupply relevant to the sale of the Goods (collectively, “Attachment”), and all documents incorporated by specific reference into these Terms or any Attachment, constitute the complete and exclusive statement of the terms of the agreement governing all sales of Goods by Winsupply to Buyer (“Agreement”), regardless of whether or not Buyer or Winsupply expressly make reference to these Terms in any documentation related to any such sale. Buyer’s acceptance of the Goods will manifest Buyer’s assent to these Terms without variance or addition. Winsupply hereby objects to and rejects any terms in Buyer’s purchase order or other Buyer documents that are different than or in addition to these Terms, and such terms shall not constitute any part of the agreement between Buyer and Winsupply. Any Attachment is incorporated herein by reference. Winsupply reserves the right in its sole discretion to refuse orders.

  1. Prices. Unless a fixed price is quoted, the price of Goods are subject to change without notice and the prices invoiced will be those in effect at the time of shipment and/or delivery of Goods.

  2. Taxes. Any current or future tax or any charge of any nature imposed by any governmental or taxing authority that is or becomes payable by reason of the production, transportation, sale, storage, processing, use, consumption or delivery of any Goods sold to Buyer, other than taxes based on Winsupply’s net income or profit, will be for Buyer’s account and will either be added to the price of Goods (unless Buyer provides Winsupply with an exemption certificate acceptable to the applicable taxing authorities) and paid for by Buyer or billed to Buyer separately (unless Buyer provides Winsupply with an exemption certificate acceptable to the applicable taxing authorities) and paid for by Buyer, as Winsupply may elect in its sole discretion.

  3. Terms of Payment. Unless otherwise specified by Winsupply, terms are net thirty (30) days from the date of Winsupply’s invoice in U.S. currency. Winsupply has the right, among other remedies, either to terminate this Agreement and/or any purchase order with Buyer or to suspend further performance under this Agreement, any other agreements and/or purchase orders with Buyer in the event Winsupply fails to receive any payment when due, which other agreements and/or purchase orders Buyer and Winsupply hereby amend accordingly to incorporate these Terms, or if Winsupply otherwise deems itself insecure. Buyer shall be liable for all expenses, including attorneys’ fees and other litigation costs, relating to the collection of past due amounts. In the event Buyer fails to make any payment to Winsupply when due, Buyer’s entire account(s) with Winsupply shall become immediately due and payable without notice or demand by Winsupply. If any payment owed to Winsupply is not paid when due, it shall bear interest at a rate to be determined by Winsupply, which shall not exceed the maximum rate permitted by law, from the date on which it is due until it is paid. Should Buyer’s financial responsibility become unsatisfactory to Winsupply, cash payments or security satisfactory to Winsupply may be required by Winsupply (including, without limitation, letters of credit) for future deliveries and for Goods delivered up to that point. If such cash payment or security is not provided, in addition to Winsupply’s other rights and remedies, Winsupply may discontinue deliveries. Buyer hereby grants Winsupply a purchase money security interest in all Goods sold to Buyer by Winsupply, which security interest shall continue until such Goods are fully paid for in cash, and Buyer: (a) upon Winsupply’s demand, will execute and deliver to Winsupply such instruments as Winsupply requests to protect and perfect such security interest, and (b) authorizes Winsupply to execute and file such instruments as are necessary or useful to protect and perfect such interest. No Goods furnished by Winsupply to Buyer shall become a fixture as a result of such Goods being attached to realty.

  4. Shipment and Delivery. Unless otherwise expressly provided, shipments are made F.O.B. Winsupply’s store or warehouse, whichever is applicable, of origin. Risk of loss or damage and responsibility shall pass from Winsupply to Buyer upon delivery to and receipt by a carrier. Any claims for shortages or damages suffered in transit are the sole responsibility of Buyer and shall be submitted by Buyer directly to the carrier. Shortages or damages must be acknowledged and signed for at the time of delivery. While Winsupply will use all reasonable commercial efforts to maintain the delivery date(s) acknowledged or quoted by Winsupply, all shipping dates are approximate and not guaranteed. Winsupply reserves the right to make partial shipments and to place certain orders on “back order.” Winsupply, at its option, shall not be bound to tender delivery of any Goods for which Buyer has not provided shipping instructions. If Winsupply is to pay freight, Winsupply shall have the right to designate routing and means of transportation; and if Buyer requires a more expensive routing and/or means, Buyer will pay any extra cost involved. The cost of any special packing or special handling as a result of Buyer’s requirements shall be added to the amount of the order of the applicable Goods. If the shipment of Goods is postponed or delayed by Buyer for any reason, Buyer agrees to reimburse Winsupply for any handling and storage costs and other additional expenses resulting therefrom. All claims for shipping errors, lost shipments or any other discrepancies (other than shortages or damages which must be acknowledged and signed for at the time of delivery) must be made within ninety (90) days after delivery to the carrier or they will be disallowed and deemed waived.

  5. Limited Warranty. Buyer’s sole and exclusive warranty, if any, with respect to Goods sold by Winsupply, is the warranty provided by manufacturer(s) of Goods.




    The term “consequential damages” as used in these Terms shall include, but not limited to, fines, penalties, loss of anticipated profits, business interruption, loss of use of revenue, cost of capital, loss or damage to property or equipment, loss of reputation, or illness. Further, Buyer shall indemnify and hold Winsupply harmless from any liability to Buyer, Buyer’s employees, workers, contractors or any other persons arising out of Buyer’s, or any other persons’, use of Goods. It is further expected that all instructions and warnings supplied by Winsupply will be passed on to those persons who use Goods. Winsupply’s Goods are to be used in their recommended applications and all warning labels adhered to.

  8. Contingencies. Winsupply shall not be held responsible for or be liable for any nonperformance or any default or delay in performance if caused, directly or indirectly, by acts of God, war, fire, the elements, riot, civil commotion, strikes, lock-outs, slow downs, picketing or other labor controversies, accidents, delay or default of or failure by carriers, shortages of labor, delay in obtaining or inability to obtain materials, equipment or parts from regular sources, action, request or regulation of or by any government or governmental authority, failure of any party to perform any contract with Winsupply, the performance of which is required for production of the Goods, or any other happening or contingency beyond Winsupply’s reasonable control, or without Winsupply’s fault, whether similar or dissimilar to the foregoing. Deliveries or other performance may be suspended for an appropriate period of time or canceled by Winsupply upon notice to Buyer in the event of the foregoing, but the balance of the this Agreement shall otherwise remain unaffected.

    If Winsupply determines that its ability to supply the total demand for the Goods, or to obtain material used directly or indirectly in the manufacture of the Goods, is hindered, limited or made impracticable due to causes set forth herein, Winsupply may allocate its available supply of the Goods or such material (without obligation to acquire other supplies of any such Goods or materials) among itself and its purchasers on such basis as Winsupply determines to be equitable without liability for any failure of performance that may result therefrom.

  9. Cancellation. Buyer may cancel orders only upon reasonable advance written notice and upon payment to Winsupply of Winsupply’s cancellation charges that include, among other things, all costs and expenses incurred to cover commitments made by Winsupply and a reasonable profit. Winsupply’s determination of such termination charges shall be conclusive.

  10. Assignment. Buyer shall not assign its rights or delegate its duties hereunder or any interest herein without the prior written consent of Winsupply, and any such assignment, without such consent, shall be void.

  11. Examination - Suitability – Claims – Returns. Buyer agrees to examine and test each shipment of Goods promptly on arrival, before any part of the Goods (except for reasonable test quantities) has been changed from its original condition and in no event later than seven (7) days from delivery of the Goods to Buyer. Winsupply will not recognize any claims for any cause after the Goods have been treated, processed, or changed in any manner (except for reasonable test quantities). It is Buyer’s responsibility to determine whether the Goods are suitable for its contemplated use whether or not such use is known to Winsupply. Buyer hereby agrees that such seven (7) day period is a reasonable amount of time for such inspection. Buyer shall deliver to Winsupply within ten (10) days from the date of delivery of the Goods written notice of any deficiencies, defects, variations from specifications, or complaints of any kind with respect to the quantity, quality, condition, shipment, performance, price, or appearance of the Goods delivered by Buyer. If Winsupply does not receive such notice within ten (10) days from the date of delivery of the Goods, Buyer shall be deemed conclusively to have inspected and accepted all such Goods unconditionally and to have waived any rights and claims, including without limitation any right to reject the Goods or to claim damages in respect thereof. Buyer may not return Goods without first advising Winsupply of the reasons therefor and observing such instructions as Winsupply may give in authorizing such return.

    Buyer may return any Goods that Winsupply regularly stocks with no restocking charge if and only if: (i) such Goods are in new condition, suitable for resale in its undamaged original packaging and with all its original parts, and (ii) such Goods have not been used, installed, modified, altered or damaged. Custom Goods or other non-stock Goods not manufactured by Winsupply may be returned if the manufacturer of such Goods will accept the return. Except for Goods that Winsupply stocks which meet the above criteria, credit issued for authorized returns shall be subject to the following deductions: (a) expenses associated with reconditioning and/or modifying Goods to put them in salable condition; (b) transportation charges; and (c) handling and restocking charges. Except as set forth above in this Section 11 and in the case of a material defect covered by a warranty set forth in this Agreement, Custom Goods may not be canceled or returned, and no refund will be made for any reason whatsoever with respect to Custom Goods. Buyer acknowledges that Winsupply does not make and specifically negates, renounces and disclaims any representations, warranties and/or guaranties of any kind or character, expressed or implied, with respect to (i) Goods and their use, design, application or operation, merchantability, physical condition or fitness for a particular purpose, (ii) the maintenance or other expenses that may be incurred in connection with Goods, (iii) the engineering, design, or any other work or service provided by Winsupply and/or its employees, agents and suppliers, or (iv) the accuracy or reliability of any information, designs or documents furnished to Buyer in connection with Goods. Winsupply neither assumes, nor authorizes any person to assume for it, any other obligation or liability in connection with Winsupply’s sale of Goods. Any recommendations made by Winsupply concerning the use, design, application or operation of Goods shall not be construed as representations or warranties, expressed or implied, nor shall failure by Winsupply to make recommendations to Buyer impose any liability upon Winsupply.

  12. Permits; Indemnification. Buyer shall at its own expense apply for and obtain any permits required for the installation and/or use of Goods. Except as particularly specified and agreed upon in writing by Winsupply, Winsupply makes no covenant, warranty or representation that Goods will conform to any federal, state or local laws, ordinances, regulations, codes or standards. Winsupply shall not be responsible for any losses or damages sustained by any party as a result of improper installation, use or storage of Goods. Buyer shall defend, indemnify and hold harmless Winsupply and its directors, officers, employees, shareholders, subsidiaries, affiliates and agents against any loss, damage, claim, suit, liability, judgment or expense (including, without limitation, attorney’s fees) arising out of or in connection with any injury to, damage to, death to or loss of any persons or property, or violation of any applicable laws or regulations resulting from or in connection with the sale, transportation, installation, use, or repair of Goods by Buyer, including without limitation the Safe Drinking Water Act, Reduction of Lead in Drinking Water Act, and other state and federal laws related to the limitation of lead in products used for the conveyance of drinking water. This Section 12 shall survive the termination of this Agreement.

  13. Goods. The purchase of Goods from Winsupply confers no license, express or implied, under any patents, copyrights, know-how, or technology, except, in the case of wholesalers for resale to their customers and for manufacturers for use in their products.

  14. Orders. Orders are not binding on Winsupply until accepted in writing by an authorized employee of Winsupply.

  15. Documentation. Winsupply shall provide Buyer with that data/documentation that is specifically identified in Winsupply’s quotation. If additional copies of data/documentation are to be provided by Winsupply, it shall be provided to Buyer at Winsupply’s applicable prices then in effect.

  16. U.S. Export Control Regulations. All Goods sold to Buyer by Winsupply hereunder are subject to U.S. Export Control Laws. Buyer hereby agrees not to re-sell or divert any Goods contrary to such laws.

  17. Non-Waiver. No waiver by Winsupply with respect to any breach or default of any right or remedy and no course of dealing, shall be deemed to constitute a continuing waiver of any other breach or default of any other right or remedy, unless such waiver be expressed in writing and signed by Winsupply.

  18. Set-Off. Buyer shall not be entitled to set-off any amounts due Buyer against any amount due Winsupply in connection with this Agreement.

  19. Severability. If any provision of this Agreement is held to be invalid or unenforceable, all other provisions shall nevertheless continue in full force and effect.

  20. Governing Law. These Terms shall be governed by and construed and interpreted in accordance with the laws of the State of Ohio, without regard to its conflict of law principles. Buyer and Winsupply agree that the proper venue for all actions arising in connection with these Terms shall be deemed exclusively proper only in state court in Montgomery County, Ohio, or in the federal court for the Southern District of Ohio and the parties agree to submit to such jurisdiction. Any action, regardless of form, arising out of transactions relating to these Terms or any other theory of recovery shall be brought within the applicable statutory period, but in no event later than one (1) year of the date of tender of delivery of the applicable Goods except that any action by Winsupply for payment hereunder may be brought within five (5) years of the date of delivery of the applicable Goods. Further, the United Nations Convention on Contracts for the International Sale of Goods (1980) (as amended from time to time) shall not apply to these Terms or any transactions relating thereto.

  21. Miscellaneous. All rights and remedies of Winsupply in these Terms are in addition to, and not lieu of, any rights or remedies that Winsupply may have at law or in equity. These Terms supersede all other communications, negotiations and prior oral or written statements regarding the subject matter of these Terms. No change, modification, rescission, discharge, abandonment, or waiver of these Terms shall be binding upon Winsupply unless made in writing and signed on its behalf by its duly authorized representative. No conditions, usage or trade, course of dealing or performance, understanding, or agreement purporting to modify, vary, explain, or supplement these Terms shall be binding unless hereafter made in writing and signed by Winsupply. No modification shall be affected by Winsupply’s receipt or acceptance of Buyer’s purchase orders, shipping instruction forms, or other documentation containing terms at variance with or in addition to these Terms, all of which are objected to by Winsupply. All typographical or clerical errors made by Winsupply in any quotation, acknowledgment or publication are subject to correction. These Terms shall not be construed against the party preparing them, but shall be construed as if all parties jointly prepared these terms and any uncertainty or ambiguity shall not be interpreted against any one party.

(February 2012)

Terms and Conditions of Purchase

Winsupply Inc. or the Winsupply Inc. locally-owned and operated company purchasing goods, products and/or services (the “Goods”) is referred to in these Terms and Conditions of Purchase (“Terms”) as “Buyer” and the entity or person from which Buyer is purchasing the Goods is referred to as “Seller.”  These Terms shall be used in connection with the applicable (and/or attached) order (the “Order”) for the purchase of Goods.  Seller agrees that the purchase of Goods by Buyer is solely an agreement between Seller and that particular Buyer.  Seller agrees that the obligations, liabilities and duties of each Buyer are solely the obligations, liabilities and duties of such Buyer and of no other Buyer. 

  1.   The Order shall become a binding contract when it is accepted either by Seller’s acknowledgment or performance.  The Order expressly limits acceptance to these Terms.  Any additional or different terms or conditions proposed by Seller are objected to and hereby rejected, including without limitation, Seller’s quotation or acknowledgment forms.  Any reference in the Order to Seller’s quotation or proposal does not imply acceptance of any terms or conditions in that quotation or proposal.  Buyer may inspect or test Goods at any time or place and such inspection or testing by Buyer (as well as Buyer’s failure to detect any defect in Goods) shall not constitute “acceptance” by Buyer nor impose any liabilities on Buyer.
  2.   Except as otherwise provided in the Order, the quantities, prices, terms, conditions or other pertinent specifications of the Order shall not be changed except by Buyer’s written authorization.  If any such change causes a material increase or decrease in the cost of, or time required for performance of the work under the Order, an equitable adjustment shall be made in the contract price or delivery schedule or both.
  3.   Except as otherwise specified in the Order, the price of Goods includes all transportation charges and all charges for Seller’s packing, crating and storage. 
  4.   All taxes, duties and fees arising out of the transactions contemplated by the Order shall be borne by Seller except as otherwise specified by the parties in writing.
  5.   Invoices shall be in such form and delivered as reasonably requested by Buyer, which delivery may include electronic means.
  6.   Payments shall be made as stated on the front of the Order less customary cash discount and subject to all rebate and other incentive programs, unless Buyer agrees otherwise in writing.  Buyer’s count of Goods delivered will be accepted as final on all shipments not accompanied by a packing list.  Payment of amounts due hereunder shall be subject to deduction of any amounts representing valid claims against Seller arising from the Order or any other transaction between Seller and any Buyer.
  7. Packing and Marking.  Seller shall mark and package all Goods in accordance with law, regulation, Buyer’s instructions and packaging specifications and the requirements of the consolidated freight classification, exceptions to the classification or any applicable tariffs in effect on the date of shipment.
  8. Title and Risk of Loss; Shipment.  Title and risk of loss to Goods shall remain in Seller until Goods in a completed state have been delivered to and accepted by Buyer or an agent or consignee duly designated by Buyer at the delivery point specified by Buyer.  Goods to be shipped shall be shipped F.O.B. destination, unless otherwise specified by Buyer.
  9.   If designs, drawings, blueprints, instructions or specifications (collectively, “Specifications”) are furnished by Buyer, the Order shall be based upon such Specifications.  Goods not conforming to such Specifications may be rejected at any time.
  10. Payments Not Constituting Acceptance.  Payment for any Goods shall not constitute acceptance of such Goods.  Seller shall repay Buyer the purchase price of any Goods found to be defective, not to conform to Specifications or samples or not shipped in accordance with Buyer’s delivery schedule.  Rejected Goods shall be returned at the expense of Seller.  Buyer may retain rejected Goods and remedy any defects or nonconformity, and the cost of effecting such remedy shall be offset against any amounts due to Seller from Buyer.
  11. Termination/Cancellation.  Notwithstanding anything in these Terms to the contrary, except as otherwise provided in the Order, Buyer shall have the right for any reason and at its convenience to cancel and/or terminate the Order in whole or in part at any time by written notice effective upon receipt by Seller.  Upon receipt of notice, Seller shall immediately discontinue performance and shall comply with Buyer’s instructions concerning disposition of completed and partially completed Goods, work in progress and materials acquired pursuant to the Order.  In the event of such cancellation and/or termination, Seller shall be paid an amount in settlement to be mutually agreed upon by the parties which shall cover Seller’s reasonable costs of performance incurred prior to cancellation/termination in connection with the Goods for which the Order is terminated plus a reasonable profit based upon such costs; provided, however, such payment shall not exceed the price specified in the Order for such Goods.  In no event shall Seller be entitled to recover incidental or consequential damages in the event of termination of the Order pursuant to this Section 11.  Seller shall advise Buyer, in writing, of Seller’s claim, if any, for cancellation/termination costs within seven (7) days after receipt of Buyer’s notice of termination.
    Where cancellation/termination is by reason of termination of a contract of the United States government under which the Order has been placed, Buyer will pay Seller at such times as Buyer is paid by the United States government.  Exercise by Buyer of the rights of cancellation/termination reserved in this Section 11 shall give rise to no liability on the part of Buyer except as specified in this Section 11 and shall not have the effect of waiving damages Buyer might otherwise be entitled to.
  12. In the event of bankruptcy or insolvency proceedings involving Seller, or in the event of the appointment of an assignee for the benefit of creditors or of a receiver, or if Seller is insolvent or fails to perform any provision of the Order, or so fails to prosecute the work as to endanger its performance of the Order in accordance with its terms, Buyer may, by written notice to Seller, without any liability whatsoever and without prejudice to any other rights or remedies which Buyer may have under the Order or in law or equity, terminate, in whole or in part, cancel or terminate further performance by Seller of the Order and any other outstanding Orders.
    In the event of such an occurrence, Buyer may complete Seller’s performance by such reasonable means as Buyer determines, and Seller shall be responsible for, and shall indemnify Buyer against, any expenses and reasonable costs incurred by Buyer as a result thereof, including without limitation, attorneys’ fees.  Any amounts due Seller for Goods delivered or provided by Seller in full compliance with the terms of the Order prior to such event shall be subject to setoff of Buyer’s additional costs and expenses of completing the Order and other damages incurred by Buyer as a result of Seller’s default.  Waiver by Buyer of any default of Seller shall not be considered to be a waiver by Buyer of any provision of the Order or of any subsequent default by Seller.  Seller shall return to Buyer and Buyer may at any time enter Seller’s premises to repossess any Proprietary Property (as defined in Section 18 below) without liability to Buyer.
  13. Work on Buyer Premises.  If Seller’s performance requires Seller, its employees, agents or representatives to perform services or labor on the premises of Buyer, its agents, customers, or users, Seller agrees to comply with all safety regulations of Buyer, to indemnify and hold harmless Buyer against all claims and liabilities for injury or damage to persons or property arising out of such performance by Seller, and to maintain insurance in coverage and amounts acceptable to Buyer during such performance.
  14.   Seller shall maintain:
    A. Commercial general liability insurance with products liability and completed operations insurance (including without limitation coverage for private labeled products, which must be noted on the Certificate of Insurance) and contractual liability insurance to cover the indemnification provisions in these Terms, which provide, under the terms of the primary policy or by contractual liability endorsement if necessary, coverage in respect of claims involving bodily injury, liability, damages or property damage arising out of or in connection with the Order or the Goods.  Such policies must have limits of not less than $1,000,000 per occurrence and be written on an occurrence basis
    B. All policies of insurance set forth in this Section 14 shall not be cancelable or modified except upon at least ninety (90) days’ prior written notice to Buyer and Winsupply Inc.  Buyer and Winsupply Inc. shall be listed on each policy as additional insureds on a primary and non-contributory basis.  Each policy shall be written by carriers acceptable to Buyer.  All insurance carriers must be rated A- or better by AM’s Best.  All policies shall contain a waiver of subrogation clause in favor of Buyer and Winsupply Inc. and such waiver of subrogation clause must be listed on each certificate of insurance applicable to the policies.  Seller shall furnish Buyer, upon demand, an acceptable insurance carrier’s certificate showing that Seller has appropriate workers’ compensation, public liability and property damage insurance coverage as reasonably determined by Buyer, setting forth the amount of coverage, policy number and date of expiration, and naming Buyer as an insured if so requested.  The provisions of this Section 14 shall survive the term and any termination or expiration of Order.
  15. Seller warrants that it has clear title to all Goods furnished under the Order and that such Goods are being delivered to Buyer free and clear of any encumbrances of any nature.  Seller warrants that Goods provided under the Order, if such are Goods other than services, will be merchantable, fit for the intended purpose, free from any defects in material or workmanship, free and clear of any encumbrances and will conform to any Specifications, samples and other descriptions and any other requirements of Buyer set forth in the Order.  Seller warrants that Goods provided under the Order, if such Goods are services, will be performed in a workmanlike manner, free from any material defects and will conform to any Specifications, samples and other descriptions and any other requirements of Buyer set forth in the Order.  If required by Buyer, Seller shall promptly correct or replace defective or nonconforming Goods.  Shipping costs from Buyer’s place of business to Seller’s place of business for such returns shall be borne by Seller.  If Buyer does not require correction or replacement, Seller shall repay such portion of the Order price of said Goods as is equitable under the circumstances.  These warranties shall survive acceptance and payment and shall run to Buyer, its successors, assigns, customers and users of Goods, and shall not be deemed to be exclusive, but rather, the aforesaid warranties shall be in addition to not lieu of Buyer’s other rights under the Order or at law or in equity.  Seller agrees, at its own expense and whenever and as often as reasonably requested by Buyer, to furnish and deliver to Buyer satisfactory evidence showing that all Specifications and samples have been fully and completely complied with and that Goods supplied hereunder fully and completely conform thereto.  Buyer’s approval of Seller’s designs, materials or Goods shall not relieve Seller of the warranties set forth herein.  The foregoing rights of Buyer are not exclusive and shall not limit Buyer’s right to avail itself of any other remedy provided by the Order, at law or in equity.
  16. Patent Indemnity.  Seller hereby represents, warrants and covenants that Goods purchased hereunder and the manufacture, sale, resale or use of them will not infringe any patent, copyright or other intellectual property rights (“Intellectual Property Rights”) of other persons.  Unless otherwise specifically agreed to in writing, Seller agrees to indemnify and hold harmless Buyer, Winsupply Inc., and their respective successors, assigns, customers and users of Goods against any loss, damage, liability, costs and expenses which may be incurred by them as a result of or in defending or settling any suit, claim, judgment or demand involving infringement of Intellectual Property Rights of other persons by the sale, resale or use of Goods purchased hereunder.  Seller agrees that it will assume the defense of Buyer, Winsupply Inc., and their respective successors, assigns, customers and users of Goods against any such aforementioned suits, claims or demands, and Buyer shall be consulted and have approval rights in the choice of defense counsel and the conduct of the defense.
  17. Compliance with Laws.  Seller warrants it and all Goods provided under the Order comply with all applicable foreign, national, state, and local laws, rules, regulations or orders, as amended or superseded, including without limitation, the applicable provisions of: (i) the Americans with Disabilities Act of 1990 (42 U.S.C. 12101); (ii) the U.S. Fair Labor Standards Act of 1938; (iii) the Occupational Safety & Health Act of 1970; and (iv) the American Recovery and Reinvestment Act of 2009 (Public Law 111-5, Section 1605 of H.R. 1-189); and Seller further warrants that any chemical substance or hazardous material of any nature sold hereunder, or incorporated into any Goods sold hereunder, shall at the time of sale, transfer or delivery, be on the list of chemical substances compiled and published by the Environmental Protection Agency pursuant to 15 U.S.C.A. Section 2607 and/or by any applicable state or state agency, including without limitation any chemical substances required to be listed pursuant to the California Safe Drinking and Water Act of 1986 (Chapter 6.6 added by Proposition 65, 1986 General Assembly).  Seller shall comply with all applicable foreign, federal, state and local laws and/or regulations relating to providing notice and/or warnings to any and all individuals that may come into contact with such chemical substances.  Seller shall indemnify Buyer from any and all liability, costs, or damages (including, without limitation, attorneys’ fees) of any nature arising from anyone’s exposure to such chemical substances.  In addition, where required, Seller shall provide Buyer with hazardous material data sheets for all applicable Goods.
  18. All invoices must carry the following certification in order to be passed for payment:  “We hereby certify that these goods were produced in compliance with all applicable requirements of Sections VI, VII, and XII of the Fair Labor Standards Act, as amended, and of regulations and orders of the United States Department of Labor issued under Section XIV thereof.”
  19. Proprietary Rights.  Seller agrees that all information relating to Buyer’s business, including without limitation, customer lists, trade secrets, financial information, information relating to employees, plans, strategic initiatives, Specifications and improvements to Goods, are Buyer’s exclusive and proprietary property (“Proprietary Property”) and shall not be utilized for purposes other than fulfillment of the Order.  Seller shall safeguard, treat as confidential, and shall not disclose to any third party, use, or reproduce any Proprietary Property so long as, and to the extent that such property does not become part of the public domain through no fault of Seller.  These obligations shall survive the termination or expiration of the Order.
  20. Buyer shall not be liable for any loss or damage resulting from Seller’s use of any Proprietary Property.  Title to all Proprietary Property shall at all times remain with Buyer and Seller shall take all necessary measures to preserve Buyer’s right, title and interest in and to Proprietary Property, free of all encumbrances.  Neither the delivery of the Order nor the furnishing of Proprietary Property will be deemed to grant to Seller, expressly or by implication, any right or license to use any Proprietary Property except as specifically provided in the Order or these Terms.
  21. Seller Information.  Unless otherwise specifically agreed to in writing by Buyer or clearly designated as such, any information provided by Seller to Buyer shall not be deemed to be confidential or proprietary information.
  22.   Seller, its heirs, successors, assigns and legal representatives, shall forever protect, indemnify and hold harmless Buyer, its subsidiaries and affiliated companies, their successors, assigns, customers and users of Goods provided hereunder, against all damages, expenses, claims, suits, demands, costs, attorneys’ fees or losses of every kind, whether based upon negligence, contract, breach of express or implied warranty, strict liability or any other theory, and all direct, indirect, consequential, special or incidental damages or every kind whatsoever, arising out of or alleged to have arisen out of or in connection with (a) accidents, occurrences, injuries or losses to or of any person or property, upon or about in any way due to or resulting from, or allegedly due to or resulting from, in whole or in part, Goods or the design, preparation, manufacture, construction, assembly, completion, packaging, shipping, delivery or non-delivery of Goods, (b) Seller’s performance or lack of performance hereunder, or (c) breach of any terms or conditions of the Order.  Seller hereby expressly agrees to waive its immunity, if any, under applicable workers’ compensation laws if such immunity affects Seller’s indemnification set forth in this Section 20.  The provisions of this Section 20 shall survive the term and any termination or expiration of the Order.
  23. Inspection and Audit.  At any time during the term of the Order and for a period of two (2) years after the termination or expiration of the Order, Buyer may, from time to time, audit and/or inspect the facilities and/or books and records (in whatever form they may be kept, whether written, electronic or other) of Seller or Seller’s subcontractors to ensure compliance with these Terms, including but not limited to all documents and other materials, in whatever form they may be kept, which support or underlie those books and records.  Buyer shall pay all of Buyer’s costs and expenses for such inspection or audit; provided, however, if such inspection or audit determines or verifies that Seller has violated any term or condition of these Terms, Seller shall pay all costs and expenses associated with such inspection or audit and for all costs and expenses associated with the next inspection or audit conducted by Buyer.  The provision of this Section 21 shall survive the term and any termination or expiration of the Order.
  24. Governing Law.  The Order, and all transactions relating thereto, shall be interpreted under, and governed by, the laws of the State of Ohio in the United States of America without regard to its conflict of law principles.  Buyer and Seller agree that the proper venue for all actions arising in connection herewith shall be deemed exclusively proper only in state court in Montgomery County, Ohio or in the federal court for the Southern District of Ohio, Western Division and the parties agree to submit to such jurisdiction.  Further, the United Nations Convention on the International Sale of Goods (1980) (as amended from time to time) shall not apply to the Order or any transactions relating thereto.  Buyer and Seller acknowledge that the Order may be translated from English (United States) into another language.  In the event there is any ambiguity in a translation or any conflict between the terms contained in a translation and the Order, the English (United States) version of the Order shall in all cases govern.
  25. Equal Opportunity.  Seller shall observe its responsibilities under Executive Order 11246, as amended and the regulations at 41 C.F.R. Parts 60-1 through 60-60 and 41 C.F.R. Parts 60-250 and 60-741.
  26.   These Terms constitute the full understanding of the parties, and no terms, conditions, understandings or agreements purporting to modify or vary the terms of the Order or agreement shall be binding unless hereafter made in writing with reference to the Order and signed by authorized representatives of both parties.  These Terms shall not be construed against the party preparing them, but shall be construed as if all parties jointly prepared these terms and any uncertainty or ambiguity shall not be interpreted against any one party.  Neither party shall be held responsible for any delay or failure in performance hereunder caused by acts of God, war, riots, fire, explosion, flood, strike, lock-out, injunction, governmental laws or regulations, or any other cause beyond the control of such party, preventing the manufacture, shipment, acceptance, or use of Goods; provided, however, Seller shall remain responsible for any failure of its suppliers, vendors, contractors, employees and agents.  Any forecast that may be made by Buyer of its requirements shall be made in good faith to assist Seller for planning purposes, but such forecast shall not be deemed a commitment or guarantee by Buyer.  Time of delivery is of the essence in the Order.  Deliveries shall be made strictly in accordance with Buyer’s direction, and in exact quantities ordered.  Seller shall not assign, by operation of law or otherwise, any portion of the Order without the prior written consent of Buyer.  The Order also may not be assigned by operation of law, by a merger, or by judicial sale or otherwise, without the prior written consent of Buyer.  The Order may be assigned by Buyer without Seller’s consent.  Failure of Buyer to insist on performance of any of the terms and conditions or requirements of the Order shall not be construed as a waiver of such terms, conditions or requirements and shall not affect the right of Buyer thereafter to enforce each and every term, condition or requirement hereof.  Any rights or remedies granted to Buyer herein shall not be exclusive of, but shall be in addition to, any other rights or remedies that Buyer may have at law or in equity.  Except as provided otherwise herein, any notice, approval or consent required or permitted hereunder shall be in writing and will be deemed to have been duly given if mailed by registered or certified mail, postage prepaid, or delivered by overnight courier services with tracking capabilities to the respective addresses of the parties as set forth in the Order (or such other addresses a party may designate by ten (10) days prior written notice).  The provisions of the Order are severable.  If any provision of the Order shall be adjudged to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that the Order shall otherwise remain in full force and effect and enforceable.