1. DEFINITIONS

 

In these terms and conditions of purchase (the “Terms”): Agreement means the Main Agreement and these Terms; Delivery Date means (i) for Goods, the date the Goods must be delivered to the delivery location; and (ii) for Services, the date the Services must be completed, as set out in the Agreement; Goods means the goods identified in the Agreement (including any software embedded therein) and documentation relating thereto; Main Agreement means the applicable framework agreement, a Purchase Order, Purchase Contract and all documents specified in any such agreements/documents; Price means the price set out in the Main Agreement; Purchase Contract means a Purchase Order confirmed by Seller; Purchase Order means the purchase order issued by the Purchaser to the Seller for the purchase of the Goods or Services; Purchaser means the company purchasing the applicable Goods and/or Services as set out in the Main Agreement (and/or if applicable, an individual Purchase Order or Purchase Contract)); LP means Lindsay Precast, LLC; Seller means the person providing the Goods and/or Services named as such in the Main Agreement (and/or if applicable, an individual Purchase Order or Purchase Contract)); and Services means the services identified in the Main Agreement and the Seller’s marketing material.

 

2. AGREEMENT

 

These Terms, together with the Main Agreement constitute the entire terms of the Agreement. These conditions shall apply to all Goods and/or Services deliveries from the Seller to Purchaser, where i) these Terms are attached to the applicable Main Agreement or ii) a reference to these Terms has been made in the applicable Main Agreement or an individual Purchase Order/Contract. In the event of ambiguity, conflict or confusion between these documents, the documents will rank in the following order of precedence (1) the Main Agreement, (2) these Terms and (3) any other document referred to in the Terms.

 

If the Seller cannot confirm a Purchase Order without changes (including, for the avoidance of doubt, references to terms and conditions which amend, or attempt to amend, the terms of the Agreement), the Seller shall reject the Purchase Order or present changes to the Purchaser in writing without delay. The Purchaser shall not be bound by any changes not expressly accepted by the Purchaser in writing. Unless the Seller has expressly rejected the Purchase Order or presented changes in writing to the Purchaser within 2 days from the date the Purchaser has sent the Purchase Order to the Seller, the Seller shall be bound by the original Purchase Order.

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3. OTHER TERMS AND CONDITIONS

 

Unless specifically agreed to in writing prior to delivery of the Goods and/or Services and unless referred to in the Main Agreement, the Seller’s terms and conditions of sale (whether written or verbal), do not form part of the Agreement. All terms and conditions proposed by Seller which are different from or in addition to the Main Agreement, the Terms or the Purchase Order are unacceptable to Purchaser, are expressly rejected by Purchaser, and shall not become a part of the parties’ agreement. . The Main Agreement, and the Terms together with the Purchase Order and any documents incorporated therein by reference, constitute the sole and entire agreement of the parties with respect thereto, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the Order. The Terms also apply to any repaired or replacement Goods provided by Seller hereunder. Purchaser is not obligated to any minimum purchase or future purchase obligations under this Order.

 

4. CHANGES

 

The Purchaser reserves the right at any time to change the Purchase Order. If that change causes an increase or decrease in the Price (excluding loss of profits) or a change to the agreed Delivery Date, the Seller will notify the Purchaser within 2 business days of receipt of the change. The Seller will in such case not effect the change until the parties have agreed in writing on an adjustment to the Price or agreed Delivery Date. In the event the parties cannot agree, then clause 14 may be applied.

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5. PRICE AND PAYMENT

 

All Prices stated are fixed and firm and shall include the cost of delivery, cartage and freight, testing, certification, packaging, handling, storage, insurance, taxes, tariffs and duty and excise, unless otherwise agreed in writing by the Purchaser. The Seller shall render an invoice compliant with Purchaser’s instructions from time to time to the Purchaser at delivery or at the end of each calendar month during the period in which supply is provided and calculate the Price by reference to the prices, fees or other amounts specified in the Agreement. Provided the Goods and/or Services comply with the Agreement and unless otherwise agreed in writing between the Parties, payment will be effected within 60 days from the receipt of the correct invoice.

 

6. GOODS

 

The Seller is solely responsible for the design, supply of materials, fabrication, testing, packaging, loading onto and off transport and delivery of Goods in accordance with the Agreement (including without limitation the Purchaser's specification and applicable legal requirements). The Purchaser will have the right to verify at the Seller's premises that the Goods conform to the Agreement. That verification does not relieve the Seller of its responsibility to provide Goods of a merchantable quality nor does it preclude subsequent rejection by the Purchaser. Nonconforming or substitute Goods will not be accepted without the Purchaser's written authority. All drawings, patterns, tools or other items specifically prepared to produce the Goods remain the Purchaser’s property and will be delivered to Purchaser upon demand.

 

7. SERVICES

 

The Seller must perform the Services: (a) in accordance with the Agreement (including without limitation any Purchaser’s specification) and applicable legal requirements (including without limitation obtaining any necessary qualifications, licenses, registrations and permits); (b) with due care and skill and in a professional, punctual and diligent manner; (c) as directed by the Purchaser; and (d) if applicable, using the personnel specified in the Agreement.

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8. TIME AND DELIVERY

 

Adherence to the Delivery Date is an essential part of the Agreement. Timely delivery of the Goods and Services is of the essence. Goods shall be forwarded to the delivery location, and Services must be completed in accordance with the Agreement. Should it be necessary to utilize premium freight to meet the agreed Delivery Date, any associated costs will be at the Seller's expense. Part delivery may be accepted, only if approved in writing by Purchaser. Upon the occurrence of any event (including a force majeure event) likely to affect the agreed Delivery Date, the Seller will immediately give the Purchaser written notice of the event and take all steps to minimize the delay. The Purchaser may then at its sole discretion either:

(a) request the Seller to supply the Goods or complete the Services by a mutually agreed alternative Delivery Date;

(b) claim liquidated damages at a rate of 2% of the purchase price of the delayed Goods or Services calculated for each completed week of delay. The liquidated damages shall not exceed 20% of the purchase price of the delayed Goods or Services;

(c) cancel the applicable Purchase Order or the Agreement; or

(d) use other rights as specified in the Agreement or available under law. The Seller will be liable to the Purchaser for any loss or damage incurred or suffered by the Purchaser as a result of any delay of Goods and/or Services.

 

9. PACKING, LABELLING AND TRANSPORT

 

The Seller shall properly pack, mark, and provide transport documentation for the Goods in accordance with instructions provided by the Purchaser.

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10. FINAL INSPECTION

 

All Goods and Services shall be considered to be received, subject to Purchaser's inspection within a reasonable time period, but in no event less than 14 calendar days, after delivery at the delivery location or completion (as the case may be). If requested, certificates of inspection, testing or other documents evidencing compliance (including any quality assurance documents) shall be supplied by the Seller to the Purchaser. If upon inspection: (a) the Goods or Services do not conform with this Agreement; or (b) the quantity and quality requirements are defective, unsatisfactory, or unfit for the required purchase, the Purchaser may reject the Goods and/or Services. Payment for Goods or Services prior to inspection does not constitute acceptance of unsatisfactory or defective Goods or Services. Upon rejection of Goods or Services, the Seller will (at the election of the Purchaser) at its own cost:

(a) in the case of Goods, replace/repair the rejected Goods or reimburse the Purchaser for the price paid and any costs and expenses associated with the return of the Goods or as otherwise set out in the Agreement;

(b) in the case of Services, re-perform the Services or reimburse Purchaser for the price paid;

(c) cancel the applicable Purchase Order or the Agreement; or

(d) use other rights as specified in the Agreement or available under law.

If the Seller does not replace, repair or re-perform the Goods and/or Services (as applicable) promptly pursuant to the above, the Purchaser has the right, at its discretion and with the assistance of third parties, to replace, repair or perform the defective Goods and/or Services and then invoice the Seller for such incurred costs, expenses, or resources spent. This clause 10 shall not in any way limit Purchaser’s rights and Seller’s obligations under clause 13.

 

11. TITLE

 

The Seller warrants that the Seller has title in the Goods and that the Goods are free and clear of all liens, encumbrances, restrictions, and other claims against title of ownership. Title in the Goods will pass from Seller to Purchaser on delivery to the delivery location specified on the Purchase Order. Where part payment for Goods is made by Purchaser, title to the partly completed Goods and any material/parts to be used in their manufacture or assembly will pass to Purchaser.

 

12. RISK

 

The Goods remain at Seller’s risk until the Goods have been delivered to the delivery location specified on the Purchase Order.

 

13. WARRANTIES AND INDEMNIFICATION

 

The Seller warrants that it will perform all of its obligations hereunder in conformity with applicable legal requirements, including without limitation any applicable environmental and safety laws, orders or regulations. The Seller warrants that the Goods will conform to its description and specifications (and/or drawing or sample if applicable), this Agreement, be free from defects in design, material and workmanship, and of good and merchantable quality, and be fit for their intended purpose and operate as intended. Unless the parties have agreed separately in a writing signed by Seller and Purchaser, the Seller will correct any defects which arise from breach of any warranty, or from any act or omission of the Seller, which appear within twelve (12) months of delivery of the Goods. The Purchaser undertakes to notify the Seller before any warranty work is undertaken on such Goods and will either:

(a) give the Seller reasonable opportunity to inspect and repair the defects at the Seller’s cost;

(b) obtain authorization from the Seller to arrange repair at the Seller’s cost;

(c) return the defective Goods to the Seller and receive a refund of the cost from the Seller for the defective Goods; or

(d) request the Seller to replace the Goods at the Seller's expense.

The Seller warrants that the Services and the result thereof will conform to this Agreement and be free of any defects in design or workmanship. The Seller warrants that its personnel providing the Services possess and will use the specific skills, qualifications and experience required for the Services. Unless the parties have agreed separately in a writing signed by Seller and Purchaser, the Seller will correct any defects which arise from breach of any warranty, or from any act or omission of the Seller, which appear within twelve (12) months of completing the Services. The Purchaser undertakes to notify the Seller before any rectification work is undertaken on such Services and will either:

(a) give the Seller reasonable opportunity to inspect and repair the defects at the Seller’s cost;

(b) obtain authorization from the Seller to arrange repair at the Seller’s cost; or

(c) request a refund of the cost from the Seller for the defective Services.

These warranties are in addition to all other warranties, express or implied. These warranties survive any delivery, inspection, acceptance or payment of or for the Goods or Services by Purchaser. Seller specifically acknowledges it will be responsible for all incidental and consequential damages that result from a breach of warranty. Seller shall be liable for any breach of warranty, including any costs necessary to replace or repair the Goods or Services at Seller’s sole cost, including without limitation, labor, materials, equipment, and transportation charges for the return of the defective or nonconforming Goods to Seller and the delivery of repaired or replacement Goods to the location of Purchaser’s choice.

 

Seller shall defend, indemnify and hold harmless Purchaser, its parent and affiliated companies, and their respective directors, officers, shareholders, members, managers, employees, representatives, agents, successors, assigns, customers, and end-users (collectively, "Indemnitees") from and against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, "Losses") arising out of or occurring in connection with the Goods or Services purchased from Seller including, without limitation, defects in the design or manufacture of the Goods, breach of the Agreement, breach of warranty, any claims alleging infringement of any intellectual property rights of a third party related to the Goods or Services, Seller’s negligence, or any other act or omission of Seller, its employees, representatives, agents or subcontractors. Seller shall not enter into any settlement without Purchaser's or Indemnitee's prior written consent.

 

14. CANCELLATION

 

In the event of a breach by Seller of the Agreement (including without limitation the Delivery Date), the Purchaser may (without prejudice to its other rights) cancel any Goods (or part of Goods) which are not yet delivered or Services (or part of Services) which are not yet completed without entitling the Seller to any compensation, or cancel the Agreement. Upon receipt of a cancellation notice, the Seller must cease to manufacture the Goods, deliver the Goods and/or perform the Services (as the case may be) and mitigate its costs. Only in the event Purchaser cancels a Purchase Order without a breach by Seller, the Purchaser will be obliged to pay any documented expenditure reasonably incurred prior to cancellation which is directly attributable to placing the Purchase Order and not otherwise recouped by Seller for such Goods or Services. Upon that payment, title in property, material/parts and incomplete Goods passes to Purchaser. The Purchaser may also exercise its rights under this clause where:

 

(a) If the Seller becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors; or

(b) any other matter occurs that may affect the Seller's ability or capacity to supply the Goods or Services to the Purchaser.

 

15. SUBCONTRACTORS

 

The Seller may use sub-contractors, provided that such subcontractors are well-reputable within their field of expertise. Seller shall be liable for compliance of its sub-subcontractors of all of the terms and conditions herein, and for their acts and omissions. The Purchaser has the right to audit any subcontractors used by the Seller for the delivery of the Goods and/or Services. The Seller shall use its commercially reasonable efforts to ensure that sub-contractors consent to such audit rights and audits by the Seller. Any audits of the Seller’s sub-contractors by the Purchaser shall be made during business hours and with reasonable written notice. The Purchaser has the right to, with reasonable notice, demand that certain sub-contractors are not to be used, or stopped to be used, by the Seller for the production and delivery of the Goods and/or Services. The Purchaser has the right to demand that certain sub-contractors or tier- two suppliers are to be used in relation to the Purchaser.

 

16. RIGHT TO OFFSET

 

The Purchaser (without prejudice to its other rights), will be entitled from time to time to deduct from any amounts due or owing by Purchaser to Seller in connection with an Agreement or contract with Seller any and all amounts owed by Seller to Purchaser.

 

17. INTELLECTUAL PROPERTY RIGHTS

 

Any intellectual property rights in and to the Goods and/or Services shall not in any way limit the Purchaser’s right to use and/or transfer the Goods and/or use Services in any manner. The Seller grants to Purchaser and any third party using or owning the Goods or Services a perpetual, fully paid up, global, right to use the Goods or Services for its intended purposes, including any and all rights necessary to amend, develop, repair, support, assign, and maintain the Goods and Services and to integrate the Goods or Services with or into other products or services and to take any other action or measure which is required therefor. Except as required to carry out its obligations under the Agreement, the Seller shall not at any time acquire or have been granted a right to use any intellectual property rights belonging to the Purchaser. The Seller warrants that the Goods and/or Services, or the use or transfer thereof, shall not infringe or cause Purchaser to infringe any intellectual property rights of any third party. The Seller further warrants that none of the materials, tools, methods or processes used in manufacturing the Goods or performing the Services shall infringe any intellectual property rights of any third party.

 

18. INSURANCE

 

Seller shall maintain insurance coverage in amounts not less than the following: a) Worker's Compensation - Statutory Limits for the state or states which this order is to be performed (or evidence of authority to self-insure); b) Employer's Liability - $1,000,000; c) Comprehensive General Liability including Products Liability and Completed Operation - to a combined single limit of $2,000,000 for bodily injury and property damage arising out of any one incident, and d) Automobile Liability including owned, non-owned and hired vehicles - $1,000,000 per occurrence limits. At Purchaser's request Seller shall furnish to Purchaser certificates of insurance setting forth the amount(s) of coverage, policy number(s) and date(s) of expiration for insurance maintained by Seller and if further requested by Purchaser, such certificates will provide that Purchaser shall receive thirty (30) days' prior written notification from the insurer of any termination or reduction in the amount or scope of coverage. All such insurance shall be written by a reputable insurance company acceptable to Seller.

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20. CONFIDENTIALITY

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Seller acknowledges that Purchaser possesses certain confidential or proprietary information of Purchaser, and of Purchaser’s vendors and suppliers, including, without limitation, designs, data, ideas, drawings, specifications, trade secrets, formula, technical experience, financial data, financial information, and other valuable, confidential and proprietary information, the Goods and other goods and services of Purchaser, which may be disclosed to Seller or for which Seller may have access (hereafter “Confidential Information”). At all times thereafter, Seller agrees not to disclose to any person, firm, or entity any Confidential Information. Furthermore, Purchaser retains exclusive ownership of all of its Confidential Information, and Seller obtains no license or other rights thereto. Purchaser shall also have exclusive rights to any improvements, modifications, or variations of its Goods and Services, and its Confidential Information, including, without limitation, any and all patent, copyright, trademark, trade name, or other intellectual property rights, and Seller shall not disassemble or reverse engineer the Goods or any Confidential Information. Seller shall promptly furnish Purchaser with copies of any and all detailed and assembly drawings, schematics, bill of material, and all electrical, mechanical, and hydraulic documentation along with any and all related documents ("Documents"). Upon completion of any order or upon written request of Purchaser, Seller shall immediately deliver to Purchaser all final copies of the Documents, and Purchaser shall own such Documents, and shall immediately return all Confidential Information to Purchaser. The Seller hereby agrees that if Seller breaches this Section, Purchaser shall incur irreparable injury and harm and money damages would be an insufficient remedy, and as such, and in addition to all other remedies, Purchaser shall be entitled to seek injunctive relief restraining Seller from breach of this Section.

 

21. SEVERABILITY

 

If any provision of the Agreement is void or unenforceable, the provision shall be severed from the Agreement to the extent it is void or unenforceable without affecting the validity or enforceability of the rest of the Agreement.

 

22. ASSIGNMENT

 

The Seller is not permitted to assign all or any part of the Agreement without the prior written consent of the Purchaser. The Seller acknowledges that no permitted assignment in any way relieves the Seller from the performance of its obligations under the Agreement. The Seller is not permitted to pledge its rights under the Agreement.

 

23. COMPLIANCE WITH LAWS

 

Seller represents and warrants that it will comply with all applicable local and national laws and regulations pertaining to its performance of its obligations under this Agreement. In particular and without limitation, Seller shall not act in any fashion or take any action that will render Purchaser liable for a violation of any applicable anti-bribery legislation (including without limitation, the U.S. Foreign Corrupt Practices Act and the UK Bribery Act 2010), which prohibits the offering, giving, or promising to offer or give, or receiving, directly or indirectly, money or anything of value to any third party to assist it or Purchaser in retaining or obtaining business or in performing the Work

 

24. NOTICES

 

A notice of termination, claim of breach of this Agreement and other formal communications required or permitted under this Agreement shall be made in writing and sent to the respective party’s representative at the respective address set out in the Main Agreement. A notice or other formal communication shall be deemed to have been given (i) in case of registered letter, five (5) business days after the submission of the notice to the postal service; (ii) in case of use of a delivery service, five (5) business days after the submission of the notice to the delivery service; (iii) in case of fax, on the date the fax is sent; and (iii) in case of use of e-mail, according to confirmation by the e-mail server system of the sending party or, at the latest, upon written receipt thereof of any kind from the other party. A party may change its address or designee for notification purposes by giving the other party prior written notice of the new address or designee, and the date upon which it will be effective. Such notice of change shall be made in accordance with the provisions of this clause.

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25. GOVERNING LAW AND VENUE

 

All matters arising out of or relating to the Agreement shall be governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule whether of the State of Ohio or any other jurisdiction that would cause the application of the laws of any jurisdiction other than those of the State of Ohio. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other Party in any way arising from or relating to the Agreement or the Terms, including all exhibits, schedules, attachments and appendices attached to the Order, and all contemplated transactions, in any forum other than the United States District Court for the Northern District of Ohio in Akron, Ohio or the court of Common Pleas located in Stark County, Ohio, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Each Party agrees that a final judgment in any such action, litigation or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

 

26. AMENDMENT AND MODIFICATION

 

No change to the Agreement is binding upon Purchaser unless it is in writing, specifically states that it amends the Agreement and is signed by an authorized representative of Purchaser.

 

27. CUMULATIVE REMEDIES

 

The rights and remedies of Purchaser under the Agreement are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.

 

28. ATTORNEYS FEES

 

If Seller breaches any of the terms hereof, Seller shall pay to Purchaser any costs and expenses, including attorney's fees incurred by Purchaser in enforcing the terms of the Agreement.

 

29. SURVIVAL.

 

The provisions of the Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration thereof including, but not limited to, the following provisions: Setoff, Warranties, Indemnification, Indemnification, Governing Law and Venue, and Survival.

 

30. RELATIONSHIP OF THE PARTIES

 

The relationship between the parties is that of independent contractors. Nothing contained in these this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from the Agreement.