ORDER AND ORDER ACCEPTANCE. FORT WAYNE METALS RESEARCH PRODUCTS, LLC (“FWM”) agrees to buy, and Supplier agrees to sell the materials and/or services (hereinafter referred to as the “Products”), in accordance with purchase orders issued from time to time (each, an “Order”) and these Terms and Conditions of Purchase. The Order, together with these Terms and Conditions of Purchase and any written agreement incorporating these Terms and Conditions of Purchase, represent the entire agreement between FWM and Supplier (collectively, “Parties”) with respect to the subject matter hereof. Order acceptance by Supplier shall occur by commencement of performance or by Order acknowledgment. Additional or different terms contained in Supplier’s acknowledgment or any other documentation of Supplier shall be void and of no effect. Notwithstanding the foregoing, terms on the face of the Order shall prevail over any conflicting terms herein; provided that any conflicting terms in an applicable written agreement between the Parties shall prevail. None of any past practice, industry standards, course of dealing or usage of trade shall constitute an addition or modification of any term or condition herein.
PAYMENT & DELIVERY. Payment is due sixty (60) calendar days from the date of receipt by FWM of Supplier’s invoice. Standard payment terms at N60, unless otherwise negotiated. Deliveries shall be FCA Supplier’s Plant (Incoterms® 2020) unless otherwise set forth on the Order. Places of delivery and method of shipment shall be specified by FWM in the Order or otherwise in writing. No change to the delivery destination or shipping method shall be made without FWM’s written consent. All shipments to FWM must be accompanied by a packing slip that identifies the Order, part number, quantity and description. If exported, Supplier shall mark Products and/or packaging with the country of origin in accordance with applicable customs regulations. In the case of orders for Products to be manufactured to specifications, Supplier may deliver up to 5 % above or 5% below any quantity so ordered, thereby completing the Order.
Supplier warrants that upon delivery the Product shall meet the written, agreed upon specification(s) for the Product provided by, or prepared at the request of FWM and shall be free from defects in material, workmanship and/or design.
INSPECTION AND ACCEPTANCE OF PRODUCT. Prior to acceptance, all Products are subject to inspection and testing at FWM’s discretion. Payment for Products shall not constitute final acceptance. FWM’s failure to inspect Products will not relieve Supplier from responsibility for such Products to the extent they do not conform to Supplier’s warranties. Acceptance shall not be deemed to affect FWM's rights or the Supplier's obligations under Sections 3 and 5.
Supplier agrees to indemnify, defend and hold harmless FWM, its officers, agents, and employees from and against any and all demands, claims, suits, damages, loss, liability, cost or expense for any injury, death or damages sustained by any person, and for damage to property, arising under any legal theory with respect to any Products provided hereunder, except only where such injury, death or damage is caused by or results from the sole negligence of FWM. Supplier shall also indemnify and hold harmless FWM, its affiliates, subsidiaries, agents, directors, officers, and employees, and each subsequent purchaser and customer of Products, from any losses, costs, damages, and liabilities, including without limitation, any attorney’s fees, court costs and fines, arising from any potential or actual claim, suit, injunction, proceeding, or investigation alleging infringement or violation of any third party intellectual property rights or license related to the Product. Supplier shall not be liable for any claim solely based on Supplier’s compliance with any specification created by FWM, unless: (i) Supplier could have complied with FWM’s specification using a solution that was non-infringing; (ii) the specification was derived from, or provided by Supplier; or (iii) Supplier knew or should have known of a claim or potential claim and did not promptly notify FWM in writing.
Supplier shall not subcontract its obligations under the Order without the prior written consent of FWM.
Except as otherwise set forth on the Order, the price includes all fees to meet the requirements of the Order and all applicable sales, use and other taxes and duties.
If either Party defaults with respect to any provision of the Order, including without limitation, these Terms and Conditions, or files or has filed against it a petition for bankruptcy, or suffers the appointment of a receiver or trustee of its business or properties by reason of insolvency or liquidation (each an “Event of Default”), the non-defaulting Party shall have the right to terminate the Order if such Event of Default is not cured by the defaulting Party within thirty (30) days after receipt of written notice. In such event, the non-defaulting Party shall have the right to seek any and all remedies available under the Order and under applicable law.
FWM may terminate an Order in whole or in part at any time by written notice to Supplier. Upon receipt of such notice or at the time specified therein, if any, Supplier shall immediately discontinue all work under the Order. Supplier shall incur no further costs of performance and shall terminate all related orders and subcontracts given by Supplier in connection with performance of its obligations under the Order. In the event of a termination of an Order, in whole or in part, if the Products subject to the termination are made exclusively for FWM, (i) Supplier will then deliver and FWM, upon testing and acceptance, will pay the original Order price for any quantity of Products then fully completed and ready for delivery which is less than or equal to the quantity of the Product identified in the Order and (ii) if Supplier has any unfinished Products (i.e. WIP) or raw materials or components to be used for use in the manufacture of the Products that cannot be used in Supplier’s business, FWM and Supplier will negotiate in good faith to reach an agreement on compensation from FWM to Supplier for such items.
FORCE MAJEURE. Delay in or failure to carry out the duties imposed upon either Party under these Terms and Conditions shall not be deemed an Event of Default if such delay or failure results from causes beyond the reasonable control of the Party claiming relief hereunder, including but not limited to fire, explosion, cyclone, flood, declared or undeclared war, revolution, civil commotion, terrorism or acts of public enemies, blockage or embargo, or by reason of law, proclamation, ordinance, or requirement of any governmental authority. Each Party shall notify the other in writing of the cause of such delay and the expected period of such delay within three (3) business days after it begins. In the case of delays impacting Supplier's performance under the Order, FWM reserves the right to terminate the Order at its discretion without liability to FWM.
Neither the Order nor any rights or obligations under these Terms and Conditions may be assigned by Supplier without the prior written consent of FWM.
COMPLIANCE WITH LAWS. Supplier shall comply, with all applicable federal, state and local laws, rules, regulations, standards and orders. Supplier agrees to defend, indemnify and hold FWM harmless for any loss, damage, fine, penalty or any expense whatsoever as a result of Supplier's failure to comply with this Section.
GOVERNING LAW. The validity, interpretation and performance of the sale shall be governed by the laws of the State of Indiana and the United States of America and specifically excluding the application of the United Nations Convention on Contracts for the International Sale of Goods.
SEVERABILITY/WAIVER. Should any part of the Order or these Terms and Conditions be deemed invalid by court of law, it shall not constitute an invalidation of any other part of the Order or these Terms and Conditions, which shall otherwise remain in effect. FWM’s failure to insist on performance of any terms or conditions or to exercise any right or privilege or FWM’s waiver of any breach hereunder shall not thereafter waive any other terms, conditions, rights or privileges, or any subsequent breaches of the same term.
The following Sections of these Terms and Conditions survive in perpetuity: 3. Warranty; 5. Indemnification; 8. Termination.
ORDER AND ORDER ACCEPTANCE. FORT WAYNE METALS RESEARCH PRODUCTS, LLC (“FWM”) agrees to buy, and Supplier agrees to sell the materials and/or services (hereinafter referred to as the “Products”), in accordance with purchase orders issued from time to time (each, an “Order”) and these Terms and Conditions of Purchase. The Order, together with these Terms and Conditions of Purchase and any written agreement incorporating these Terms and Conditions of Purchase, represent the entire agreement between FWM and Supplier (collectively, “Parties”) with respect to the subject matter hereof. Order acceptance by Supplier shall occur by commencement of performance or by Order acknowledgment. Additional or different terms contained in Supplier’s acknowledgment or any other documentation of Supplier shall be void and of no effect. Notwithstanding the foregoing, terms on the face of the Order shall prevail over any conflicting terms herein; provided that any conflicting terms in an applicable written agreement between the Parties shall prevail. None of any past practice, industry standards, course of dealing or usage of trade shall constitute an addition or modification of any term or condition herein.
PAYMENT & DELIVERY. Payment is due sixty (60) calendar days from the date of receipt by FWM of Supplier’s invoice. Standard payment terms at N60, unless otherwise negotiated. Deliveries shall be FCA Supplier’s Plant (Incoterms® 2020) unless otherwise set forth on the Order. Places of delivery and method of shipment shall be specified by FWM in the Order or otherwise in writing. No change to the delivery destination or shipping method shall be made without FWM’s written consent. All shipments to FWM must be accompanied by a packing slip that identifies the Order, part number, quantity and description. If exported, Supplier shall mark Products and/or packaging with the country of origin in accordance with applicable customs regulations. In the case of orders for Products to be manufactured to specifications, Supplier may deliver up to 5 % above or 5% below any quantity so ordered, thereby completing the Order.
Supplier warrants that upon delivery the Product shall meet the written, agreed upon specification(s) for the Product provided by, or prepared at the request of FWM and shall be free from defects in material, workmanship and/or design.
INSPECTION AND ACCEPTANCE OF PRODUCT. Prior to acceptance, all Products are subject to inspection and testing at FWM’s discretion. Payment for Products shall not constitute final acceptance. FWM’s failure to inspect Products will not relieve Supplier from responsibility for such Products to the extent they do not conform to Supplier’s warranties. Acceptance shall not be deemed to affect FWM's rights or the Supplier's obligations under Sections 3 and 5.
Supplier agrees to indemnify, defend and hold harmless FWM, its officers, agents, and employees from and against any and all demands, claims, suits, damages, loss, liability, cost or expense for any injury, death or damages sustained by any person, and for damage to property, arising under any legal theory with respect to any Products provided hereunder, except only where such injury, death or damage is caused by or results from the sole negligence of FWM. Supplier shall also indemnify and hold harmless FWM, its affiliates, subsidiaries, agents, directors, officers, and employees, and each subsequent purchaser and customer of Products, from any losses, costs, damages, and liabilities, including without limitation, any attorney’s fees, court costs and fines, arising from any potential or actual claim, suit, injunction, proceeding, or investigation alleging infringement or violation of any third party intellectual property rights or license related to the Product. Supplier shall not be liable for any claim solely based on Supplier’s compliance with any specification created by FWM, unless: (i) Supplier could have complied with FWM’s specification using a solution that was non-infringing; (ii) the specification was derived from, or provided by Supplier; or (iii) Supplier knew or should have known of a claim or potential claim and did not promptly notify FWM in writing.
Supplier shall not subcontract its obligations under the Order without the prior written consent of FWM.
Except as otherwise set forth on the Order, the price includes all fees to meet the requirements of the Order and all applicable sales, use and other taxes and duties.
If either Party defaults with respect to any provision of the Order, including without limitation, these Terms and Conditions, or files or has filed against it a petition for bankruptcy, or suffers the appointment of a receiver or trustee of its business or properties by reason of insolvency or liquidation (each an “Event of Default”), the non-defaulting Party shall have the right to terminate the Order if such Event of Default is not cured by the defaulting Party within thirty (30) days after receipt of written notice. In such event, the non-defaulting Party shall have the right to seek any and all remedies available under the Order and under applicable law.
FWM may terminate an Order in whole or in part at any time by written notice to Supplier. Upon receipt of such notice or at the time specified therein, if any, Supplier shall immediately discontinue all work under the Order. Supplier shall incur no further costs of performance and shall terminate all related orders and subcontracts given by Supplier in connection with performance of its obligations under the Order. In the event of a termination of an Order, in whole or in part, if the Products subject to the termination are made exclusively for FWM, (i) Supplier will then deliver and FWM, upon testing and acceptance, will pay the original Order price for any quantity of Products then fully completed and ready for delivery which is less than or equal to the quantity of the Product identified in the Order and (ii) if Supplier has any unfinished Products (i.e. WIP) or raw materials or components to be used for use in the manufacture of the Products that cannot be used in Supplier’s business, FWM and Supplier will negotiate in good faith to reach an agreement on compensation from FWM to Supplier for such items.
FORCE MAJEURE. Delay in or failure to carry out the duties imposed upon either Party under these Terms and Conditions shall not be deemed an Event of Default if such delay or failure results from causes beyond the reasonable control of the Party claiming relief hereunder, including but not limited to fire, explosion, cyclone, flood, declared or undeclared war, revolution, civil commotion, terrorism or acts of public enemies, blockage or embargo, or by reason of law, proclamation, ordinance, or requirement of any governmental authority. Each Party shall notify the other in writing of the cause of such delay and the expected period of such delay within three (3) business days after it begins. In the case of delays impacting Supplier's performance under the Order, FWM reserves the right to terminate the Order at its discretion without liability to FWM.
Neither the Order nor any rights or obligations under these Terms and Conditions may be assigned by Supplier without the prior written consent of FWM.
COMPLIANCE WITH LAWS. Supplier shall comply, with all applicable federal, state and local laws, rules, regulations, standards and orders. Supplier agrees to defend, indemnify and hold FWM harmless for any loss, damage, fine, penalty or any expense whatsoever as a result of Supplier's failure to comply with this Section.
GOVERNING LAW. The validity, interpretation and performance of the sale shall be governed by the laws of the State of Indiana and the United States of America and specifically excluding the application of the United Nations Convention on Contracts for the International Sale of Goods.
SEVERABILITY/WAIVER. Should any part of the Order or these Terms and Conditions be deemed invalid by court of law, it shall not constitute an invalidation of any other part of the Order or these Terms and Conditions, which shall otherwise remain in effect. FWM’s failure to insist on performance of any terms or conditions or to exercise any right or privilege or FWM’s waiver of any breach hereunder shall not thereafter waive any other terms, conditions, rights or privileges, or any subsequent breaches of the same term.
The following Sections of these Terms and Conditions survive in perpetuity: 3. Warranty; 5. Indemnification; 8. Termination.