Purchase Order Terms & Conditions
Mandel Metals, Inc. (“Mandel”) and the party selling the goods and/or services (the “Seller”) hereby agree to the following Purchase Order Terms and Conditions.
1. Applicability and Acceptance of Terms. This purchase order is an offer by Mandel for the purchase from Seller of the goods, materials, equipment, services and/or repairs (the “Goods”) specified on Mandel’s purchase order in accordance with and subject to these terms and conditions (the "Terms", and together with the terms and conditions on the face of the purchase order, the "Order"). This Order, together with any documents incorporated herein by reference, constitute the sole and entire agreement of the parties with respect to the Order, and supersedes 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. Any different, inconsistent or additional items in any proposal, offer, acknowledgement of the Order, bill of lading, invoice, or other document issued by Seller, whether prior or subsequent hereto, are hereby rejected, notwithstanding any terms or conditions to the contrary that may be contained in any such document of Seller and notwithstanding Mandel’s act of accepting or paying for any goods and/or services or similar act of Mandel. In the event of any conflict, discrepancy or inconsistency between Mandel’s Order and those terms and conditions contained in any document submitted by Seller, Mandel’s Order shall supersede and govern even if Seller’s document expressly limits acceptance to Seller’s terms and conditions. No change to this Order is binding upon Mandel unless it is in writing, specifically states that it amends this Order and is signed by an authorized representative of Mandel. This Order is not binding on Mandel until Seller accepts the Order in writing or starts to perform in accordance with the Order. Mandel may withdraw the Order at any time without liability: (a) before it is accepted by Seller; or, (b) if issued by a non-authorized representative of Mandel through proper notice to Seller.
2. Delivery Location. All Goods shall be delivered to the address(s) specified in this Order (the "Delivery Location") during Mandel's or Mandel’s customer’s normal business hours or as otherwise instructed by Mandel.
3. Delivery Date. Seller shall deliver the Goods in the quantities and on the date(s) specified in this Order or as otherwise agreed in writing by the parties (the "Delivery Date"). Timely delivery of the Goods is of the essence. If Seller fails to deliver the Goods in full on the Delivery Date, Mandel may terminate the Order immediately by providing written notice to Seller and Seller shall indemnify Mandel against any losses, claims, damages, and reasonable costs and expenses directly attributable to Seller's failure to deliver the Goods on the Delivery Date. Seller will immediately notify Mandel if Seller’s timely performance under the Order is delayed or is likely to be delayed. Mandel’s acceptance of Seller’s notice will not constitute a waiver of any of Seller’s obligations.
4. Quantity. If Seller delivers more or less than the quantity of Goods ordered, Mandel may reject all or any excess Goods. Any such rejected Goods shall be returned to Seller at Seller's risk and expense. If Mandel does not reject the Goods and instead accepts the delivery of Goods at the increased or reduced quantity, the Price for the Goods shall be adjusted on a pro-rata basis.
5. Shipping Terms; Title and Risk of Loss. Delivery of Goods shall be made FOB Delivery Location for domestic suppliers and FCA Delivery Location for international suppliers (in accordance with Incoterms® 2010) or as otherwise stated in the Order. Seller shall give written notice of shipment to Mandel when the Goods are delivered to a carrier for transportation. If requested by Mandel, Seller shall provide Mandel all shipping documents, including the commercial invoice, packing list, air waybill/bill of lading, proof of delivery, and any other documents necessary to release the Goods to Mandel within five business days after Seller delivers the Goods to the transportation carrier. The Order number must appear on all shipping documents, shipping labels, bills of lading, air waybills, invoices, proofs of delivery, correspondence and any other documents pertaining to the Order. Title passes to Mandel upon delivery of the Goods to the Delivery Location. Seller bears all risk of loss or damage to the Goods until delivery of the Goods to the Delivery Location.
6. Packaging. All Goods shall be packed for shipment according to Mandel's instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. Seller must provide Mandel prior written notice if it requires Mandel to return any packaging material. Any return of such packaging material shall be made at Seller's expense.
7. Inspection and Rejection. All Goods are subject to inspection after delivery, but the absence of any inspection will not affect Seller’s warranties hereunder. With respect to any Goods which do not conform to all of the provisions of the Order (including these Terms), or are shipped contrary to instructions, or not in containers suitable for the commodity carried (collectively, “Nonconforming Goods”), Seller shall, at Mandel’s option, promptly repair or replace same at Seller’s expense, or refund the purchase price therefor. Nonconforming Goods may, at Mandel’s option, be returned to Seller or held by Mandel at Seller’s risk and expense, and in either event all costs, handling and transportation expense both ways, shall be paid by Seller. Seller shall not replace Nonconforming Goods except upon receipt of specific written instructions from Mandel. If Seller fails to timely deliver replacement Goods, Mandel may replace them with goods from a third party and charge Seller the total cost thereof and terminate this Order for cause pursuant to Section 8. Mandel reserves the right to perform site audits on Seller from time to time to verify Seller’s ability to meet Mandel’s requirements; such site audits shall be requested by Mandel with reasonable advance notice and shall occur at mutually acceptable times. A representative of Mandel and/or a customer of Mandel may perform these site audits.
8. Termination. Mandel may terminate this Order, in whole or in part, at any time with or without cause for undelivered Goods upon written notice to Seller. In addition to any remedies that may be provided under these Terms, Mandel may terminate this Order with immediate effect upon written notice to the Seller, either before or after the acceptance of the Goods, if Seller has not performed or complied with any of these Terms or the Order, in whole or in part. 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, then the Mandel may immediately terminate this Order upon written notice to Seller. In addition, Mandel shall have the right to cancel any Order in full or in part if Seller is in default on any other order or agreement between Seller and Mandel. Except as provided in the following sentence, if Mandel terminates the Order for any reason, Seller's sole and exclusive remedy is payment for the Goods received and accepted by Mandel prior to the termination. If Mandel terminates this Order for convenience and without cause, Seller’s sole and exclusive remedy is payment for (i) the Goods received and accepted by Mandel prior to the termination, and (ii) actual costs directly incurred by Seller for this Order for Goods that are not useable by Seller’s general customer base.
9. Price. The price of the Goods is the price stated in the Order (the "Price"). If no Price is included in the Order, the Price shall be the price set out in Seller's published price list in force as of the date of the Order. Unless otherwise specified in the Order, the Price includes all packaging, transportation costs to the Delivery Location, insurance, customs duties and fees and applicable taxes, including, but not limited to, all sales, use or excise taxes.
10. Payment Terms; Set-off. Seller shall issue an invoice to Mandel on or any time after the completion of delivery and only in accordance with the Terms. Unless otherwise specified on the purchase order, Mandel shall pay all properly invoiced amounts due to Seller within sixty (60) days or according to negotiated payment terms after Mandel's receipt of such invoice, except for any amounts disputed by Mandel in good faith. All payments hereunder will be in US dollars and made by check, ACH, EFT or wire transfer. The parties shall seek to resolve any invoice disputes expeditiously and in good faith. Seller shall continue performing its obligations under the Order notwithstanding any such dispute. Without prejudice to any other right or remedy it may have, Mandel reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Mandel to Seller.
11. Warranties. Seller warrants to Mandel that for a period of the longer of: (1) one (1) year after acceptance of the Goods by Mandel or Mandel’s end user; (2) such longer period of time as the item is normally warranted by Seller; or (3) as agreed to between the parties in writing: (a) all Goods will be free from any defects in workmanship, material and design; (b) all Goods will conform to applicable specifications, drawings, designs, samples and other requirements specified by Mandel, federal, state, and local laws, orders and regulations, including, but not limited to, those regarding occupational safety and health; (c) all Goods will be fit for their intended purpose and operate as intended; (d) all Goods will be merchantable; (e) all Goods will be free and clear of all liens, security interests or other encumbrances; and (f) the Goods will not infringe or misappropriate any third party's patent or other intellectual property rights. These warranties survive any delivery, inspection, acceptance or payment of or for the Goods by Mandel. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Mandel's discovery of the noncompliance of the Goods with the foregoing warranties. If Mandel gives Seller notice of noncompliance with this Section, Seller shall, at its own cost and expense, promptly replace or repair the defective or Nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods to Seller and the delivery of repaired or replacement Goods to Mandel in accordance with Section 7.
12. Indemnification. Seller will defend, indemnify and hold harmless Mandel and its parent, subsidiaries, directors, officers, employees, affiliates, agents, and their respective customers and end users (“Mandel Indemnified Parties”), buying, using or reselling the Goods and/or receiving any services from and against any and all claims (whether in contract, tort and/or any other legal theory including strict liability), demands, suits, obligations, liabilities, damages, losses, and judgments, including reasonable costs and expenses (including, but not limited to, reasonable attorneys’ fees, court costs, and out-of-pocket expenses) (collectively “Losses”) arising directly or indirectly from: (a) any death of or injury to any person, damage to any property or any other damage or loss due to any defect in or use of any Goods provided by Seller, (b) violations or alleged violations of any applicable laws or regulations by Seller; (c) any breach of the Order by Seller; (d) any other acts or omissions of Seller, its employees or agents, including, without limitation, any negligent or wrongful acts or omissions; (e) any infringement or misappropriation of patent, copyright, trade secret or other intellectual property rights of any third party or Mandel, or, (f) any product recall. Seller shall not enter into any settlement without Mandel's or indemnitee's prior written consent.
13. Insurance. During the term of the Order and any applicable warranty period thereafter, Seller will maintain, at its sole cost and expense, the following types of insurance, which will be primary insurance and not excess over nor contributing with any other insurance maintained by Mandel, and, upon Mandel’s request, name Mandel as an additional insured: (a) Worker’s Compensation with the statutory limits; (b) Comprehensive General Liability (“CGL”) with limits of not less than $1,000,000 combined single limit per occurrence; the CGL insurance will be written on an occurrence form and will cover liability arising from premises, products and completed operations extending two years after the final delivery of Goods, broad form property damage, including completed operations, personal injury, independent contractor’s liability, and contractual liability covering the Order as an “insured contract”; and (c) Business Auto Liability with limits of not less than $1,000,000 per accident. Upon Mandel’s request, Seller agrees to furnish Mandel with certificates of insurance evidencing the foregoing policies. Upon Mandel's request, Seller shall provide Mandel with a certificate of insurance from Seller's insurer evidencing the insurance coverage specified in this Order. The certificate of insurance shall name Mandel and the Mandel Indemnified Parties as additional insureds by endorsement. Seller shall provide Mandel with thirty (30) days' advance written notice in the event of a cancellation or material change in Seller's insurance policy. Except where prohibited by law, Seller shall require its insurer to waive all rights of subrogation against Mandel, Mandel's insurers and the Mandel Indemnified Parties. These insurance requirements are minimal coverage requirements and are not to be construed in any way as a limitation on Seller’s liability under the Order.
14. Compliance with Law. Seller shall comply with all applicable international, federal, state and local governmental laws, regulations and orders now or hereafter enacted, including but not limited to: (a) data protection and privacy laws; (b) employment, tax, immigration, benefits, and workers compensation laws; (c) international anti-corruption laws, including those referenced below; and (d) the California Transparency in Supply Chains Act and California’s Proposition 65. If Seller fails to timely pay a subcontractor for work performed, Mandel will have the right, but not the obligation, to pay the subcontractor and offset any amount due to Seller by any amount paid to the subcontractor. Seller will defend, indemnify and hold Mandel harmless for all damages and costs of any kind, without limitation, incurred by Mandel and caused by Seller’s failure to pay a subcontractor. Seller hereby further represents, warrants and covenants that Seller has at all times in the past been, is now, and at all times in the future will remain, compliant with all export control statutes, regulations, decrees, orders, guidelines and policies of the United States Government and the government of any country in which Seller conducts business pursuant to the Order, including but not limited to: the International Traffic in Arms Regulations ("ITAR") (22 C.F.R. Part 120-130 (2010)), as amended; the Export Administration Regulations ("EAR") (15 C.F.R. Parts 730-774 (2010)) of the U.S. Department of Commerce, as amended; the United States Government anti-boycott regulations and guidelines, including those under the EAR and U.S. Department of the Treasury regulations; the various economic sanctions regulations and guidelines of the U.S. Department of the Treasury, Office of Foreign Assets Control, including but not limited to the Trading with the Enemy Act (50 U.S.C.S. app. Sec. 5) and the USA PATRIOT Act, as amended; and restrictions against dealings with certain prohibited, debarred, denied or specially designated entities, individuals or nations under statutes, regulations, orders, and decrees of various agencies of the United States Government.
15. Seller’s Changes. Prior to Seller making any changes (“Changes”) to its Goods, including, but not limited to, its raw materials, designs, tooling, or manufacturing location or ownership of Seller, Seller shall provide Mandel with ninety (90) days’ prior written notice of such Changes and Mandel will have the right, in its sole discretion, to terminate any and all Orders without liability. If notice of Changes is not given, Seller agrees to reimburse Mandel for any and all costs and damages that arise out of or are related to the Changes.
16. Confidential Information. All non-public, confidential or proprietary information of Mandel, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Mandel to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential," in connection with the Order is confidential, solely for the use of performing the Order and may not be disclosed or copied unless authorized by Mandel in writing. Unless otherwise agreed in a written confidentiality agreement, Mandel shall not be obligated to maintain confidentiality of any information received from Seller.
17. Hazardous Materials. If any of the Goods ordered herein constitute or contain "hazardous or toxic chemicals" as defined by any applicable Federal, State or local law, rule or regulation, Seller shall provide at the time of delivery all required notices and information, including without limitation all Material Safety Data Sheets in approved form. Seller agrees to maintain such information current and shall provide Mandel with any amended, altered or revised information on a timely basis. When this Order or the specifications referred to herein, requires documentation or certification, this requirement is a material requirement of this Order; Seller's failure to provide such information prior to or at the time of delivery may result in withholding of payment until such is provided.
18. No Publicity. Seller shall not issue any press release or make any public statement relating to the subject matter of the Order (including naming Mandel as a customer of Seller). Any references to Mandel or use of Mandel’s logos, brands or trademarks are prohibited without Mandel’s prior written approval, which may be withheld in Mandel’s sole discretion.
19. Force Majeure. Mandel shall not be liable to Seller for any delay or failure in performing its obligations under the Order to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of Mandel and which, by its nature, could not have been foreseen by Mandel or, if it could have been foreseen, was unavoidable ("Force Majeure Event"). Force Majeure Events include, but are not limited to acts of God or the public enemy, governmental laws/rules/regulations/restrictions, floods, fire, earthquakes, explosion, epidemic, hurricanes/typhoons, war, invasion, hostilities, terrorist acts, riots, strike, embargoes or industrial disturbances that prevent Mandel’s performance under this Order. Seller shall immediately notify Mandel in writing of any changes in market conditions or inability to secure the Goods or provide services under this Order, along with its mitigation plan with specific milestone due dates and provide Mandel with regular weekly, or more frequent, updates as to the status of its mitigation efforts. Additionally, Seller shall use all diligent efforts to end the failure or delay of its performance, and ensure that any inability to secure the Goods or provide the services under the Order are minimized and resume performance under the Order. Seller's economic hardship, changes in market conditions or inability to secure the Goods or provide any services under the Order do not relieve Seller of its obligations hereunder. If Seller is unable to perform and/or carry out its obligations under the Order for a continuous period of more than ten (10) days, Mandel may terminate this Order immediately by giving written notice to Seller. Notwithstanding any exclusivity agreements between the parties, during any period of Seller’s delay or inability to perform its obligations under this Order, Mandel may, but is not obligated to, procure replacement Goods.
20. Miscellaneous. Each Order and all matters arising out the purchase of Goods by Mandel from Seller shall be governed by the substantive laws of the State of Illinois, without regard to conflict of laws principles. The Convention on the International Sale of Goods is expressly excluded from applicability. All disputes shall be decided in the state and federal courts located in Cook County, Illinois, and the parties agree and submit to the jurisdiction of such courts and waive any claim that such venue is inconvenient. If any action at law or equity is brought to enforce or interpret the terms, covenants or provisions of this Order, the prevailing party in such litigation will be entitled to recover reasonable attorneys’ fees from the other party, which fees may be set by the court in the trial or appeal of such action or may be enforced by a separate action brought for that purpose and which fees will be in addition to any other relief which may be awarded. No failure or delay of either party in exercising its rights hereunder shall be deemed to be a waiver of such rights unless expressly made in writing by the party waiving its rights. If any term or provision of this Order is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. The rights and remedies under this Order 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. The Order shall not be assignable by Seller without the prior written consent of Mandel. Seller is performing the Order as an independent contractor and no employment, partnership, joint venture, agency or other relationship shall be deemed created. All provisions in these Terms which, by their nature, are intended to survive termination of the Order shall so survive, including but not limited to those provisions relating to warranty, indemnity, confidentiality, publicity, compliance with applicable laws. All notices, permissions and approvals with regard to the Order shall be in writing and shall be effective upon: (a) personal delivery, (b) the third business day after mailing, or (c) the day of receipt if sent by recognized overnight courier. Notices to Mandel shall be addressed to Mandel Metals, Inc., 11400 Addison Ave., Franklin Park, IL 60131, Attn: Purchasing, and notice to Seller shall be at Seller’s address set forth in the purchase order.