Terms & Conditions of Purchase
KOLBE & KOLBE MILLWORK CO., INC.
TERMS AND CONDITIONS OF PURCHASE
At all times throughout these Terms and Condition of Purchase, Kolbe & Kolbe Millwork Co., Inc. is referenced as Buyer. This purchase order must be accepted in writing by Seller. If for any reason Seller should fail to accept in writing, any conduct by Seller which recognizes the existence of a contract pertaining to the subject matter hereof shall constitute acceptance by Seller of the purchase order and all of its terms and conditions. Any terms proposed in Seller's acceptance of Buyer's offer which add to, vary from, or conflict with the terms herein are hereby objected to. Any such proposed terms shall be void and the terms herein shall constitute the complete and exclusive statement of the terms and conditions of the contract between the parties and may hereafter be modified only be written instrument executed by the authorized representatives of both parties. If this purchase order has been issued by Buyer in response to an offer and if any of the terms herein are additional to or different from any terms of such offer, then the issuance of this purchase order by Buyer shall constitute an acceptance of such offer subject to the express conditions that the Seller assent to such additional and different terms herein and acknowledge that this purchase order constitutes the entire agreement between Buyer and Seller with respect to the subject matter hereof and the subject matter of such offer and Seller shall be deemed to have so assented and acknowledged unless Seller notifies Buyer to the contrary in writing within ten (10) days of receipt of this purchase order.
2. TERMINATION FOR CONVENIENCE; FOR CAUSE:
Buyer reserves the right to terminate the purchase order or any part hereof for its sole convenience. In the event of such termination, Seller shall immediately stop all work hereunder, and shall immediately cause any of its suppliers or subcontractors to cease such work. Seller shall be paid a reasonable termination charge consisting of a percentage of the order price reflecting the percentage of the work performed prior to the notice of termination, plus actual direct costs resulting from termination. Seller shall not be paid for any work done after receipt of the notice of termination, nor any costs incurred by Seller's suppliers or subcontractors which Seller could reasonably have avoided. In no event shall the Seller be entitled to recover incidental or consequential damages.
Buyer may also terminate this order or any part hereof for cause in the event of any default by the Seller, or if the Seller fails to comply with the terms and conditions of this purchase order. Late deliveries, deliveries of products which are defective or which do not conform to this purchase order, and failure to provide Buyer upon request, of reasonable assurance of future performance shall all be causes allowing Buyer to terminate this purchase order for cause. In the event of termination for cause, Buyer shall not be liable to Seller for any amount, and Seller shall be liable to Buyer for any and all damages sustained by reason of the default which gave rise to the termination.
3. PROPRIETARY INFORMATION; CONFIDENTIALITY:
All specifications, documents, and drawings delivered by Buyer to Seller are the property of Buyer. They are delivered solely for the purpose of Seller's performance of this purchase order and on the express condition that neither they nor the information contained therein shall be disclosed to others nor used for any purpose other than in connection with this purchase order without the prior express written consent of the Buyer. Such specifications, documents, and drawings are to be returned to Buyer promptly upon its written request. Such request may be made at any time during or after completion of Seller's performance. The obligation under this clause will survive the cancellation, termination, or completion of this purchase order.
Whether or not Seller is a merchant of goods and/or services provided by it, Seller warrants that all goods and/or services provided by it: (a) shall be of good quality and workmanship and free from defects, latent and patent; (b) shall conform to all specification drawings, descriptions, furnished, specified or adopted by Buyer; (c) shall be merchantable and suitable and sufficient for their intended purpose; and (d) shall be free of any claim of a third party. None of the remedies available to the Buyer for the breach of any of the foregoing warranties may be limited except to the extent and in the manner agreed upon by Buyer in a separate agreement specifically designating such limitation and signed by an authorized representative of Buyer. Buyer's inspection and/or acceptance of and/or payment for goods and/or services shall not constitute a waiver by it of any warranties. Buyer's approval of any sample or acceptance of any goods shall not relieve Seller from responsibility to deliver goods and to perform services conforming to specifications, drawings, and descriptions.
5. FORCE MAJEURE:
Buyer may delay delivery and/or acceptance occasioned by causes beyond its control.
Seller agrees upon receipt of notification to promptly assume full responsibility for defense of any suit or proceeding which may be brought against Buyer or its subsidiaries, affiliated entities, directors, officers, agents, employees, customers or other vendors for alleged patent infringement, as well as for any alleged unfair competition resulting from similarity in design, trademark or appearance of goods or services furnished hereunder, and Seller further agrees to indemnify Buyer or its subsidiaries, affiliated entities, directors, officers, agents, employees, customers or other vendors against any and all expenses, losses, royalties, profits and damages including court costs and attorney's fees resulting from any such suit or proceeding, including any settlement. Buyer may be represented by and actively participate through its own counsel in any such suit or proceeding if it so desires and the costs of such representation shall be paid by Seller.
Seller agrees, warrants and represents to the Buyer that Seller will maintain adequate insurance to cover any liabilities described in this purchase order. Seller further warrants and represents to Buyer that Seller will maintain adequate insurance to cover any public liability, property damage and/or automobile liability for any damage incurred with Seller's performance of any work on or about the Buyer's premises as indicated on the face of this purchase order. Seller shall maintain proper Worker's Compensation Insurance covering all employees performing this purchase order.
BUYER AND SELLER AGREE TO INDEMNIFY AND HOLD THE OTHER HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES AND LIABILITIES WHATSOEVER, ASSERTED BY ANY PERSON OR ENTITY, ARISING DIRECTLY OR INDIRECTLY FROM ANY BREACH BY A PARTY OR ANY OF ITS RESPECTIVE EMPLOYEES OR AGENTS, OF THESE TERMS AND CONDITIONS OF PURCHASE OR OF ANY WARRANTY, REPRESENTATION OR COVENANT CONTAINED IN THESE TERMS AND CONDITIONS OF PURCHASE. SUCH INDEMNIFICATION SHALL INCLUDE THE PAYMENT OF ALL REASONABLE ATTORNEY'S FEES AND OTHER COSTS INCURRED BY THE INDEMNIFIED PARTY IN DEFENDING ANY SUCH CLAIM. THE INDEMNIFIED PARTY SHALL PROMPTLY INFORM THE INDEMNIFYING PARTY IN WRITING OF ANY SUCH CLAIM, DEMAND OR SUIT AND SHALL FULLY COOPERATE IN THE DEFENSE THEREOF. THE INDEMNIFIED PARTY WILL NOT AGREE TO THE SETTLEMENT OF ANY SUCH CLAIM, DEMAND OR SUIT PRIOR TO THE FINAL JUDGMENT THEREON WITHOUT THE CONSENT OF THE INDEMNIFYING PARTY, WHOSE CONSENT WILL NOT BE UNREASONABLY WITHHELD. THE INDEMNIFIED PARTY SHALL NOT BY ANY ACT OR OMISSION ADMIT LIABILITY OR OTHERWISE PREJUDICE OR JEOPARDIZE THE INDEMNIFYING PARTY'S ACTUAL OR POTENTIAL DEFENSE TO ANY CLAIM. THE SAID INDEMNITY IS SUBJECT TO THE INDEMNIFIED PARTY'S DUTY TO MITIGATE ALL OF ITS SAID COSTS, EXPENSES, DAMAGES OR LIABILITIES.
9. INSPECTION; TESTING:
Payment for the goods delivered hereunder shall not constitute acceptance thereof. Buyer shall have the right to inspect such goods and to reject any or all of said goods which are in Buyer's judgment defective or nonconforming. Product rejected and products supplied in excess of quantities called for herein may be returned to Seller at its expense and, in addition to Buyer's other rights, Buyer may charge Seller all expenses of unpacking, examining, repacking and reshipping such goods. In the event Buyer receives goods whose defects or nonconformity is not apparent on examination, Buyer reserves the right to require replacement, as well as payment of damages. Nothing contained in this purchase order shall relieve in any way the Seller from the obligations of testing, inspection and quality control.
10. MATERIAL SAFETY DATA SHEETS:
If some or all of the product being provided by Seller are on OHSA's "Hazardous Substance List," Seller must forward a completed Material Safety Data Sheet (MSDS).
11. INDEPENDENT CONTRACTOR:
The parties to this purchase order are independent contractors and neither this purchase order, nor any terms or conditions herein, shall be construed as creating a joint venture, partnership, agency or franchise relationship.
12. GOVERNING LAW:
THESE TERMS AND CONDITIONS OF PURCHASE AND ANY PURCHASE OF PRODUCTS HEREUNDER WILL BE GOVERNED BY THE LAWS OF THE STATE OF WISCONSIN, WITHOUT REGARD TO CONFLICTS OF LAWS RULES. ANY ARBITRATION, ENFORCEMENT OF AN ARBITRATION OR LITIGATION WILL BE BROUGHT EXCLUSIVELY IN MARATHON COUNTY, WISCONSIN AND SELLER CONSENTS TO THE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED THEREIN, SUBMITS TO THE JURISDICTION THEREOF AND WAIVES THE RIGHT TO CHANGE VENUE. SELLER FURTHER CONSENTS TO THE EXERCISE OF PERSONAL JURISDICTION BY ANY SUCH COURT WITH RESPECT TO ANY SUCH PROCEEDING.
13. INVOICE, PAYMENT, AND SETOFF:
Buyer shall have no obligation to pay for any items until one original and two copies of a correct invoice for the product is received at the address shown on the face of the purchase order. Payment is due thirty (30) days from receipt of a correct invoice. Each invoice shall be printed on Seller's standard printed bill form, and shall included at a minimum: (a) the purchase order number; (b) Seller's name and address; (c) the nature of the invoice charged; (d) the total invoiced amount; and (e) such detail as is reasonably necessary to permit Buyer to evaluate the work completed and the services performed. Amounts owed to Buyer due to rejections of goods or services or discrepancies in said invoices will be, at the Buyer's option, fully credited against future invoices payable by the Buyer, or paid by Seller within thirty (30) days from Seller's receipt of a debit memo or other written request for payment by Buyer. Buyer shall have the right at any time to set off any amount owing from Seller to Buyer against any amount payable by Buyer pursuant to this purchase order or any other transaction or occurrence.
14. ENTIRE AGREEMENT; ASSIGNABILITY; WAIVER:
This purchase order, and any documents referred to on the face thereof, constitute the entire agreement between the parties. Neither this purchase order nor any interest herein shall be assigned by the Seller except upon the prior written consent of the Buyer. Buyer's failure to insist on performance of any of the terms and conditions herein or to exercise any right or privilege or Buyer's waiver of any breach hereunder shall not thereafter waive any other terms, conditions, or privileges, whether of the same or similar type.
15. SHIPMENT; DELIVERY:
Unless otherwise stipulated on the face of this purchase order or as modified by a routing letter from Buyer's Purchasing Agent, goods covered by this purchase order shall be shipped "FOB destination". Risk of loss and title to said goods to pass to Buyer only upon delivery to Buyer's specified end destination. Delivery in advance of the specified Buyer's shipping date, however, will not cause passage of title, transfer of risk of loss and/or establish FOB point. Transportation charges on goods delivered FOB destination must be prepaid. No charges for unauthorized transportation will be allowed. Any unauthorized shipment which will result in excess transportation charges must be fully prepaid by the Seller. Unauthorized transportation charges not prepaid will be offset by Buyer.
Time is of the essence in the fulfillment of this purchase order. This purchase order is subject to cancellation if not shipped at the specified time. The Buyer reserves the right to refuse deliveries made in advance of the delivery schedule. Product shipped after the time specified may be returned at the Seller's expense for full credit. Retention of all or any part of such product shall not be considered acceptance of same. Acceptance of such product shall not be deemed a waiver of the Buyer's right to hold the Seller liable for any loss or damage resulting therefrom, nor shall it act as a modification of the Seller's obligation to make future deliveries in accordance with the delivery schedule. Buyer shall be reimbursed in full for all product returned. In addition thereto, Buyer shall have the privilege, if shipment is not made on time, to purchase similar product in the open market in such quantities as they may find necessary not exceeding the amount called for in this purchase order and hold Seller responsible for the difference, if any, between the price so paid and the purchase order price.
IN NO EVENT SHALL BUYER BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL DAMAGES OR LOST PROFITS ARISING OUT OF, OR IN CONNECTION WITH, THE PURCHASE ORDER, WHETHER OR NOT BUYER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. BUYER'S LIABILITY ON ANY CLAIM OF ANY KIND FOR ANY LOSS OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH OR RESULTING FROM THIS PURCHASE ORDER OR FROM THE PERFORMANCE OR BREACH THEREOF SHALL IN NO CASE EXCEED THE PRICE ALLOCABLE TO THE PRODUCTS OR SERVICES OR UNIT THEREOF WHICH GIVES RISE TO THE CLAIM. BUYER SHALL NOT BE LIABLE FOR PENALTIES OF ANY DESCRIPTION. ANY ACTION RESULTING FROM ANY BREACH ON THE PART OF BUYER AS TO THE GOODS OR SERVICES DELIVERED HEREUNDER MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED
For questions or comments regarding these terms, please submit them in writing. Addresses are available in