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.