Vendor Terms and Conditions
(Purchase of Goods and Services)
These Vendor Terms and Conditions (these “Terms”) apply to the purchase by Profile Products LLC (“Buyer”) of the goods (“Goods”) and services (“Services”) described on the purchase order, order confirmation or other instrument into which these Terms are incorporated by reference (the “Purchase Order”) from the seller or supplier thereof (“Seller,” and together with Buyer, the “Parties”).
1. Entire Agreement & Conflicts. These Terms, the Purchase Order and any other definitive written agreement governing the purchase and sale of the Goods and Services (a “Definitive Agreement,” and together with these Terms and the Purchase Order and any Change Order (as defined below), the “Agreement”) constitute the sole and entire agreement of the parties thereto with respect to the subject matter contained herein and therein, and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. To the extent of any conflict between these Terms, the Purchase Order, any Change Order, and any Definitive Agreement, precedence shall be given first to such Change Order, second to the Definitive Agreement, third to the Purchase Order and fourth to these Terms.
2. Acceptance; Applicable Terms. Seller’s acceptance of the Purchase Order shall occur upon the earlier of: (i) Seller commencing any work in respect of any of the ordered Goods or Services, (ii) Seller shipping any of the ordered Goods or commencing performance of any of the ordered Services, or (iii) Seller acknowledging or confirming its acceptance of the Purchase Order to Buyer in any form.
If these Terms are first tendered to Seller before Seller tenders terms to Buyer, then (i) these Terms are in lieu of any terms later submitted by Seller (including, without limitation, in or with any order confirmation, estimate, proposal, quote, invoice or other communication), (ii) Seller’s acceptance of the Purchase Order is expressly limited to these Terms, (iii) the Parties agree that any additional or different terms would materially alter the Agreement, and (iv) Buyer objects to and rejects all additional or different terms and conditions of Seller. If Buyer tenders these Terms to Seller after Seller tenders other terms to Buyer, then Buyer’s acceptance of any offer by Seller associated with Seller’s terms is expressly conditioned upon Seller’s acceptance of these Terms exclusively and to the exclusion of any proffered Seller terms or conditions, regardless of whether these Terms contain any terms additional to, or different from, any terms proffered by Seller. These Terms may not be varied or modified except by the written consent of an authorized agent of Buyer expressly referencing these Terms.
3. Change Orders. Buyer may at any time, by written notice to Seller (a “Change Order”), order changes to a Purchase Order. Seller’s acceptance of a Change Order shall occur upon the earlier of: (i) Seller commencing any work in respect of any of the changed Goods or Services, (ii) Seller shipping any of the changed Goods or performing any of the changed Services, (iii) Seller acknowledging or confirming its acceptance of such Change Order to Buyer in any form, or (iv) Seller failing to object to such Change Order or timely issue a cost proposal within five business days of receipt of such Change Order as described in the next sentence. If such Change Order causes a material increase in Seller’s costs to perform, Seller may, within five business days of receipt of such Change Order, deliver to Buyer a firm cost proposal for the Change Order reflecting such increased costs (including evidence of such increased costs), along with any other terms of the Purchase Order that would be required to be amended to effect the Change Order. If Buyer accepts such cost proposal, the Purchase Order will be deemed amended in accordance with the Change Order and Seller will fulfill the Purchase Order as so amended.
4. Delivery of Goods & Performance of Services. Seller will deliver the Goods and perform the Services as described in and in accordance with the Purchase Order and these Terms. Seller acknowledges that time is of the essence with respect to Seller’s obligations hereunder, including the timely delivery and performance of the Goods and Services. Seller will not retain any access to or control over any Goods or Services after they are delivered, including any remote control features, lock-out devices, kill switches or other disabling, monitoring or limiting features (in each case except to the extent otherwise agreed by the
Parties in writing), and will deliver along with all Goods and Services all manuals, instructions, warnings (including all material and product safety datasheets and similar information), keys, passwords and other devices, codes, information, data, and other means necessary to safely and properly transport, store, handle, access, install, operate, use, and administer such Goods and Services
to their fullest intended design.
5. Packaging & Shipping. Seller will pack all Goods for shipment according to the instructions contained in the Purchase Order or otherwise provided by Buyer, or if no such instructions are provided, in a manner suitable to ensure that the Goods are delivered in undamaged condition and in accordance with applicable law. Unless otherwise specified in the Purchase Order, (i) Seller will deliver all Goods Incoterms DAP (Delivered At Place) at the named place of delivery specified in the Purchase Order or otherwise designated by Buyer in writing, (ii) and Seller will insure all Goods in transit at Seller expense.
6. Title & Risk of Loss. Notwithstanding any applicable Incoterm or other shipping or delivery term, title to and risk of loss of all Goods will transfer to Buyer upon delivery at the applicable named place of delivery; provided, however, that notwithstanding the foregoing, (i) if Buyer rejects any Goods in accordance with these Terms, title and risk of loss to such Goods shall revert to Seller, (ii) if and to the extent Buyer makes any payment for a Good prior to delivery, title to such Good shall vest in Buyer at the time of payment (but risk of loss shall remain with Seller), and (iii) Seller shall bear all risk of loss to a Good due to improper or inadequate packaging, packing or shipping or to errors in shipping documents.
7. Inspection & Rejection of Goods and Services. Buyer may inspect the Goods and Services on or after the time of delivery or completion of performance, and may reject all or any portion thereof that are nonconforming or defective. If Buyer rejects any portion of the Goods or Services, Buyer may require replacement of the rejected Goods or reperformance of the rejected Services at Seller’s expense, including for the return of the nonconforming or defective Goods. Seller shall promptly provide instructions for the return shipment of rejected Goods. Buyer shall not be liable for any restocking or other charges for Goods properly rejected by Buyer. Any inspection or other action by Buyer under this Section 7 will not diminish or otherwise affect Seller's obligations under the Agreement.
8. Price & Payment Terms. The price for all Goods and Services will be as specified in the applicable Purchase Order or Definitive Agreement. In the case of all Services, Buyer shall only be required to pay the fixed fee stated in the Purchase Order or Definitive Agreement for such Services or, subject to any cap on amount or time specified therein, the applicable rate(s) stated therein for the actual time spent in performing such Services. Seller will issue an invoice promptly after the delivery of Goods or performance of Services, and such invoice shall include the Purchase Order number, description of the applicable Goods and Services and the price thereof, the amount of each applicable insurance, tax, duty, tariff or other charges, the Harmonized Tariff Schedule number, Export Classification Control Number or other applicable export control classification, the country of origin, and such other information as Buyer shall reasonably request (in each case as applicable). Except as otherwise provided in any Purchase Order or Definitive Agreement, all undisputed invoiced amounts are due 60 days from the date Buyer receives the invoice. All payments will be made in U.S. Dollars. Prices are exclusive of, and Seller will collect from Buyer, and is responsible for the reporting of, applicable transaction taxes such as sales, use, value added, manufacture, excise or similar taxes (but excluding taxes levied or calculated based on Seller’s income). Buyer may request and condition payment upon receipt of lien waivers from Seller and its subcontractors and vendors. All amounts due or to become due from Buyer to Seller shall be subject to deduction or set-off by Buyer by reason of any claim it or any of its affiliates may have against Seller or any of its affiliates. Payment for any Goods or Services by Buyer shall not be deemed acceptance of any such Goods or Services by Buyer, and shall not release or relieve Seller of any of its liabilities and obligations under the Agreement or prejudice Buyer's right to dispute such invoice at any time thereafter.
9. Warranties. Seller warrants to Buyer (i) that the Goods will be new and conform to all published specifications, the specifications delivered in connection with any applicable Purchase Order and any other specifications agreed by the Parties, including all samples provided by Seller, (ii) that the Goods will be fit and sufficient for the particular purpose intended by Buyer, of which Seller is made aware and all purposes described in any Seller website, product literature or other Seller materials and communications, (iii) that the Goods will be conveyed to Buyer with good and valid title, free and clear of all encumbrances, (iv) that the Goods will be free from all defects in design, materials and workmanship (ordinary wear a tear excepted), will not infringe, violate or misappropriate the intellectual property or other proprietary rights of any person, and will comply with all applicable laws, regulations and codes, and (v) that no Good (a) is counterfeit or includes any counterfeit material or component, (b) requires any license or approval under the United States International Traffic in Arms Regulations, the United States Export Administration Regulations, or any other defense, military or commercial export licensing or approval requirement as a condition to being exported or re-exported, or (c) includes any material or component that would result in the imposition of antidumping duties or countervailing duties in connection with the importation of such Good into the United States. Seller warrants to Buyer that it (x) shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with best industry standards for similar services and in accordance with the Agreement, (y) shall devote adequate resources, and has the capacity, to meet its obligations under the Agreement, and (z) shall not infringe, misappropriate or otherwise use in an unauthorized manner any intellectual property, industrial, proprietary or other right of any other person or violate any applicable laws, rules or codes. Buyer may assign in whole or part its rights under the warranties in this Section 9 to its successors, designated assignees and customers to whom it transfers any interest in the Goods or Services to which such warranty applies. The warranties set forth in Sections 9(i), (iv), (x) and (y) shall survive for a period equal to the greater of (a) 24 months after Buyer’s acceptance of the applicable Good or Service and (b) the length of Seller’s standard warranty period for such Good or Service. All other warranties in this Section 9 shall survive forever. Without modifying or limiting the foregoing warranties set forth in this Section 9, Seller shall pass through and assign to Buyer any and all warranties that Seller may receive from any of its contractors, subcontractors or suppliers with respect to any Goods or Services, or any aspect thereof, and, if and to the extent requested by Buyer, Seller shall enforce on behalf and for the benefit of Buyer any and all warranties that Seller may receive therefrom to the extent that it is unable to pass through and assign them to Buyer.
10. Indemnification. Seller will indemnify, defend, reimburse and hold harmless Buyer, its affiliates, and each of their respective directors, managers, officers, members, shareholders, partners, employees, contractors and agents, together with each of their respective successors and assigns, from and against all liabilities, actions, causes of action, claims, losses, damages, fines, penalties, costs and expenses (including attorneys’ fees and court costs) suffered or incurred by Buyer or any such person, or to which any of them becomes subject, as a result of or in connection with (i) any breach of the warranties in Section 9, (ii) any claim by any employee or contractor of Seller in connection with the Goods or Services and (iii) Seller’s or its contractors’ negligence or willful misconduct in connection with the Goods or Services.
11. Site Work. If Seller or any of its employees or contractors enters upon or performs work at any site or premises owned, leased, occupied or controlled by Buyer or any of its affiliates in connection with the provision of Goods or Services ("Site Work"), such Site Work shall be confined to the specific areas designated by Buyer for such Site Work. Upon completion or termination of any Site Work, Seller shall promptly remove all waste and debris attributable to such Site Work and leave the area where such Site Work was performed in a tidy and clean condition. Seller shall ensure that no person performing Site Work for or on behalf of Seller (i) brings any gun or other weapon, illegal drug or alcoholic beverage to the site or premises where any Site Work is being performed or (ii) is inebriated, under the influence of illegal drugs, or taking any other drug or medication or otherwise suffering or under a condition that could impair the judgment or actions of such person or endanger the health or safety of any person at the site or premises where such Site Work is being performed, and all such persons performing Site Work shall be legally permitted, and have all required documentation, permits, visas and other authorizations necessary for them, to perform such Site Work and shall comply with all applicable policies of Buyer of which Seller or such person is made aware. Seller shall be solely responsible and liable for: (i) the health, safety and protection of all persons performing Site Work for or on behalf of Seller, (ii) any injury to or death of any such person in connection with Site Work, (iii) any injury to or death of any other person in connection with Site Work that is directly or indirectly attributable to any act, error or omission of any such person performing Site Work for or on behalf of Seller, (iv) any damage to the site or premises where Site Work is being performed and to any property located thereon or in the vicinity thereof that is directly or indirectly attributable to any act, error or omission of any person performing Site Work for or on behalf of Seller, and Seller shall at its sole cost, expense, liability and risk promptly repair all damage to any such site, premises or property, (v) any contamination at or in the vicinity the site or premises where Site Work is being performed that is directly or indirectly attributable to any act, error or omission of any person performing Site Work for or on behalf of Seller, and Seller shall, at its sole cost, expense, liability and risk, promptly remedy all such contamination to the reasonable satisfaction of Buyer. Seller shall not handle, store or use any toxic or hazardous materials of any kind at the site or premises where any Site Work is being performed without Buyer’s prior written approval. Seller shall cause all Site Work to be performed in a manner that minimizes any interference or disruption of Buyer’s operations and other work and activities being carried out at such site or premises.
12. Equipment, Etc. Any equipment, machinery, tools, tooling and other devices (collectively, “Equipment”) which is furnished or provided by or on behalf of Buyer to Seller or any person providing Goods or Services on behalf of Seller is and shall remain the sole property of Buyer. Buyer does not manufacture or control such Equipment and does not provide any warranty with respect thereto. SUCH EQUIPMENT IS PROVIDED BY BUYER AS IS AND WHERE IS. Seller shall be solely responsible and liable for, and hereby irremovably releases and forever discharges Buyer and its affiliates, employees and representatives from any liability related to: (i) any injury to or death of any person related to the use of the Equipment by Seller or any other person for or on behalf of Seller, and (ii) any damage to property that is directly or indirectly attributable to any act, error or omission of any person using the Equipment for or on behalf of Seller, and Seller shall at its sole cost, expense, liability and risk promptly repair all such damage to all such property. Seller shall (i) protect all Equipment against loss, damage and unauthorized with the same level and degree of care and security that it uses to protect its own comparable equipment, machinery, tools, tooling and devices, but not less than a reasonable degree of care and security, (ii) cause all Equipment to be made available only to such employees and contractors of Seller who need to use the same in order to provide Goods or Services to Buyer in accordance with the Agreement and to no other persons, (iii) use the Equipment only for the purpose of providing Goods and Services to Buyer in accordance with the Agreement and for no other purpose, and (iv) promptly cease use of and/or return the Equipment to Buyer when requested by Buyer.
13. Insurance. At all times during the performance of the Agreement and for three years thereafter, Seller will maintain, at its own cost and expense, insurance policies with sound and reputable insurers providing coverage for its obligations under Section 10 in amounts not less than $5,000,000 in the aggregate. Seller will cause Buyer to be named on each such policy as an additional primary insured on a noncontributory basis, with a waiver of subrogation for the benefit of Buyer, and provide to Buyer a certificate of insurance from each applicable insurer certifying compliance with the above requirements and providing for no less than 30 days’ notice to Buyer prior to any termination, cancellation, nonrenewal or material change in any such coverage.
14. Compliance With Laws & Policies. Seller will comply with all applicable laws in connection with the Goods and Services and their sale and performance contemplated hereunder. Seller will maintain in effect all the licenses, permissions, authorizations, consents and permits required to carry out its obligations under the Agreement.
15. Intellectual Property and Ownership. Any and all designs, drawings, schematics, plans, specifications,
photographs, information and data which are furnished or provided by or through Buyer in connection with the Agreement are and shall remain the sole property of Buyer, and any of the same which are produced, written, prepared, developed or created by or on behalf of Seller in connection with the Agreement shall be works made for hire and all right, title and interest therein and thereto shall vest in and be, and hereby is, assigned and transferred to Buyer and the same shall thereafter be the sole property of Buyer; provided, however, any pre-existing design, drawing, schematic, plan, specification, photograph, information or data or pre-existing intellectual, industrial or proprietary right of Seller that is used by Seller in connection with the Agreement shall remain the property of Seller, but Buyer and its affiliates shall have and be granted an irrevocable, perpetual, non-exclusive, fully paid, royalty-free, world-wide license (with right of sublicense) to use, distribute, sell, resell, reproduce, support and modify such design, drawing, schematic, plan, specification, photograph, information or data as and to the extent Buyer or any of its affiliates may in their sole discretion determine to be necessary, desirable or appropriate in connection with any Goods or Services. Seller shall maintain the confidentiality of all documents, information and data described in this Section 15 which are the property of Buyer hereunder and shall only use the same to satisfy its obligations under the Agreement. If Seller has entered into or is subject to any confidentiality, non-disclosure, invention assignment, or other similar agreement with the Buyer or any of its affiliates that would apply in connection with the Agreement, this Section 15 will be in addition to, and not in lieu of or substitution for, the provisions of such other agreement.
16. Termination or Suspension. Buyer may, at any time at its option, by providing notice thereof to Seller, terminate or suspend the Purchase Order or any portion thereof for convenience as to all or any part of the Goods that have not been delivered or the Services that have not been performed. Upon delivery of such notice, Seller shall stop all work on and cease delivery of the applicable Goods and cease performance of the applicable Services and shall cause its suppliers or subcontractors who or involved in the provision of such Goods and Services to do the same.
17. Amendment & Waiver. No amendment to the Agreement is effective unless it is in writing and signed by each Party. No waiver under this Agreement is effective unless it is in writing and signed by the Party waiving its right. Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated, and does not operate as a waiver on any future occasion. None of the following constitutes a waiver or estoppel of any right, remedy, power, privilege or condition arising from this Agreement: any failure or delay in exercising any right, remedy, power or privilege or in enforcing any condition under the Agreement, or any act, omission or course of dealing between the Parties.
18. Relationship of the Parties. The relationship between Seller and Buyer is solely that of vendor and vendee, and they are independent contracting parties. Except as expressly provided herein, nothing in the Agreement creates any agency, joint venture, partnership or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement or undertaking with any third party.
19. Assignment. Except as provided below, a Party may not assign any of its rights or delegate any of its obligations under the Agreement without the prior written consent of the other Party. Any Party may assign any of its rights or delegate any of its obligations under the Agreement to any affiliate or to any person acquiring all or substantially all of that Party’s assets to which the Agreement relates. Any purported assignment or delegation in violation of this section is null and void. No assignment or delegation relieves the assigning or delegating Party of any of its obligations under this Agreement.
20. Governing Law. The Agreement, its negotiation and all matters arising out of or relating thereto are governed by, and will be construed in accordance with, the Laws of the State of Illinois, without regard to the choice of laws provisions thereof that would otherwise require the application of the laws of another jurisdiction.
21. Dispute Resolution. Venue for the resolution of any dispute, controversy or claim arising out of or relating to the Agreement, or the breach thereof, will be exclusively in the state or U.S. federal courts located in Chicago, Illinois, and the Parties consent to the personal jurisdiction of each such court. In any such proceeding, the prevailing Party, as determined by the court, will be entitled to reimbursement by the other Party of all of its fees and expenses (including attorney’s fees and arbitration fees) incurred in connection with such proceeding and on any appeal.