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Terms of Purchase
ORDER AND DELIVERY
Seller agrees to sell to Wahl Clipper Corporation (the "Company") quantities of goods or services (the "Merchandise") designated on the purchase order at the prices specified thereon and to deliver the same on the delivery dates specified thereon. Time shall be of the essence of this contract and Seller undertakes to strictly respect the delivery dates specified hereon. Shipment must equal the exact amount ordered unless otherwise agreed by Company. Any losses occurring from deviation from Company's routing instructions will be charged to Seller's account.
ACCEPTANCE, MODIFICATION, ETC.
By shipping the Merchandise or by acknowledging receipt of this order, Seller expresses his assent to and acceptance of the terms and conditions set forth herein. These terms and conditions constitute an offer by the Company and this offer may only be accepted on these exact terms and conditions. No additional or conflicting terms or modifications shall be accepted. These terms and conditions supersede the terms and conditions of Seller's acknowledgment form, and any additional or conflicting terms or modifications set forth in Seller's acknowledgment are hereby objected to.
WARRANTIES AS TO MERCHANDISE
Seller warrants all Merchandise delivered hereunder to be free from all defects of material or workmanship, hidden or apparent, and to conform strictly to the specifications, drawings or samples specified or furnished. This warranty shall survive, even for apparent defects, any inspection, delivery, acceptance or payment by Company of or for the Merchandise. In the event of a defect, hidden or apparent, in the workmanship or materials in the Merchandise, Seller shall be liable for any and all expenses incurred by Company in undertaking any activities to determine if such defect exists, including expenses for recall campaigns, inquiries to dealers, distributors and users, and testing and analysis. In the event of such a defect, hidden or apparent, in the workmanship or materials in the Merchandise, Seller will, in addition to any other warranty applicable to the Merchandise, have the responsibility to rework or replace, at Seller's expense, all such defective Merchandise at any time sold to the Company, and Seller shall be liable for any and all labor and transportation costs incurred in repairing or replacing such defective Merchandise.
INDEMNIFICATION OF COMPANY BY SELLER
Seller agrees to indemnify, defend and hold harmless Company, its insurers, agents officers, directors, employees, successors, and assigns, against and from any and all losses, claims, damages, liabilities, costs and expenses (including the aggregate amount paid in reasonable settlement of any action, suit, proceeding or claim) which Company may incur or for which Company may become liable or on account of any claim, action or proceeding brought against Company claiming money damages or any other form of relief: (a) under any law, or otherwise, including but not limited to claims, actions or proceedings purporting to be based upon negligence, breach of contract, breach of warranty or strict liability in tort, insofar as such claims, actions, or proceedings arise or are alleged to arise out of any defects or alleged defects in the Merchandise, or the nature of the material contained in the Merchandise, or any actual or alleged commission or omission by, Seller or any of its employees or agents in connection with the Merchandise; (b) based upon or arising out of any actual or alleged invasion, or infringement by the Merchandise or by the Seller, its agents or employees, of any patent, trademark, copyright, right of privacy, or any other tangible or intangible personal or property right; or (c) based upon or arising out of any actual or alleged violation by the Merchandise or Seller, its agents or its employees of any statute, ordinance, administrative order, rule or regulation; and, in case any action, suit or proceeding, which shall at any time be brought against the Company by reason of any such claim, Seller, if Company so requests, shall resist and defend such action, suit or proceeding at the sole expense of Seller by reputable counsel.
Seller shall obtain and maintain a policy of general liability insurance with respect to the Merchandise with an endorsement naming Company and its subsidiaries as additional insureds. The general liability insurance shall have a minimum primary aggregate limit of $2,000,000. All policies of insurance provided pursuant to this provision shall be written as primary policies, not contributing with and not in excess of the coverage of the Company's insurance. Seller shall provide to Company a current certificate of insurance showing the coverage required by this paragraph. Company reserves the right to review certified copies of any and all insurance policies to which this paragraph is applicable. The coverage required by this paragraph shall not be modified or terminated without at least 30 days written notice to Company.
INSPECTION AND REJECTION
Final inspection of the Merchandise shall be on Company premises unless otherwise agreed in writing. Company is deemed to have accepted the Merchandise only after the final inspection took place. Merchandise rejected as not conforming to the purchase order shall be returned at Seller's expense, including transportation and handling costs. Any inspection, testing or other evaluation by the Company shall in no manner destroy, qualify or affect any of Seller's express or implied warranties hereunder or otherwise.
RISK OF LOSSSeller assumes the following risks, in addition to other risks Seller assumes by law: (a) all risks of loss or damage to the Merchandise until physically delivered to and properly handed over to the Company; (b) in the event the Merchandise is rejected by Company after the final inspection, all risks of loss or damage shall be deemed to have rested with Seller from the beginning.
TOOLINGUnless otherwise agreed to in writing by the parties hereto, all tools, dies, molds and similar items (hereinafter referred to as "Tooling") required in the manufacture of the Merchandise shall be furnished by and maintained by Seller at Seller's expense. In the event that any Tooling shall be furnished by, or at the expense of Company; such Tooling shall be and remain the property of Company and shall be returned to Company upon its request and at its expense; provided, however, that Seller shall be liable for any loss or damage to, or destruction, of, the Tooling, while in Seller's custody or possession, except where attributable to normal wear and tear; provided, further, that Seller shall at all times indemnify and hold harmless Company, its insurers, agents, officers, directors, employees, successors, and assigns against and from any and all losses, claims, damages, liabilities, costs and expenses and the aggregate amount paid in reasonable settlement of any action, suit, proceeding or claim which Company may incur or for which Company may become liable or in an account of any claim, action or proceeding brought against Company claiming money damages or any other form of relief under any law or otherwise, including but not limited to claims, actions or proceeding purporting to be based upon negligence, breach of contract, breach of warranty or strict liability tort, insofar as such claims, actions or proceedings arise or are alleged to arise out of the actual or alleged use or handling of the Tooling while the Tooling is in Seller's custody or possession.
PRICE AND TAXES
The prices stated hereon shall constitute the entire consideration to Seller for the Merchandise, its boxing, crating and other packaging, and for all warranties and otherwise, unless otherwise specified hereon, and no other charges shall be made therefor. The prices stated hereon shall be deemed to include all federal, state, and local taxes in effect on the date of this order from which Seller cannot obtain exemption, and the amount of any such taxes shall be shown separately on Seller's invoice. In the case of new taxes or increased rates or the repeal of taxes or the reduction of rates, the contract price shall be adjusted accordingly. Seller's price shall not be higher than last quoted or charged to Company unless otherwise agreed in writing. Seller warrants that the prices stated hereon do not exceed Seller's lowest lawful price to any other customer of the same class in effect on the delivery date for like items and quantities. When no price is stated hereon for any article of Merchandise, the order must not be filled at higher prices than last quoted or (if later) last charged to Company, subject to the preceding sentence. Invoices shall not bear a date prior to the date of complete shipment or performance except where agreed to in writing.
All the terms and conditions hereon shall apply in all respects to additional quantities or services ordered by Company except to the extent covered by a new contract.
Company shall have the right to make, from time to time and without notice to any sureties or assignees, changes as to packing, designations, specifications, designs and delivery schedules. Seller shall immediately notify Company of any increase or decrease in costs caused by such changes, and equitable adjustment in prices or other terms shall be agreed upon in writing by Company and Seller.
COMPLIANCE WITH LAW
Seller represents, warrants and agrees that all work performed and Merchandise delivered pursuant to this instrument will be performed, manufactured, produced, sold, invoiced, packaged, labeled, shipped and, if required, registered, in accordance with, and in all respects will conform to, all applicable federal (including the Fair Labor Standards Act of 1938 as amended), state and local laws. With respect to each shipment or other delivery of the Merchandise hereafter made by Seller to Company, Seller agrees, as of the date of such shipment or delivery, that such Merchandise is, on such date, not a misbranded hazardous substance or banned hazardous substance within the meaning of the Federal Hazardous Substance Act as amended.
The Seller certifies that they have read and will comply with the terms and conditions set forth in Wahl Clipper Corporation's Workplace Standards available at [www.wahl.com](http://www.wahl.com, "Click to return to the homepage"). The Seller will further certify they have implemented procedures in all labor related processes incorporated into their products to ensure they comply with all requirements regarding slavery and human trafficking. The Seller shall keep, maintain and make available for inspection by Company or a designated third party, records verifying the supplier's compliance. The Seller understands that their business relationship with Company is based on their being in full compliance with the terms and conditions set forth in the Wahl Clipper Corporation Workplace Standards. Failure to comply with the terms and conditions set forth may result in immediate cancellation of all outstanding orders with the Seller and refusal by Company to do any business with the supplier.
In the event of any proceedings, voluntary or involuntary, in bankruptcy or insolvency by or against Seller, or in the event of the appointment, with or without Seller's consent, of an assignee for the benefit of creditors or of a receiver, the Company shall be entitled to cancel any unfilled part of this purchase order without any liability whatsoever.
TITLE TO DRAWINGS AND SPECIFICATIONS
Company shall at all times have title to all drawings and specifications furnished by Company to Seller and intended for use in connection with this purchase order. Such drawings are confidential and contain proprietary information. Seller shall use such drawings and specifications only in connection with this purchase order, and shall not disclose such drawings and specifications to any person, firm or corporation other than Company's or Seller's employees, subcontractors or government inspectors. Seller shall, upon Company's request, promptly return all drawings and specifications to Company.
Seller shall maintain an adequate and consistent quality control program so as to assure that the Merchandise shall meet specifications as to appearance, performance and reliability. Seller shall furnish to the Company results of quality control samplings.
Company may set off an amount payable at any time with respect to the Merchandise against all present and future indebtedness of Seller to Company arising from this or any other transaction (whether or not related hereto). Additionally, all costs, lost profits and expenses incurred by Company due to Seller's violations of or failure to follow any or all provisions set forth herein, including but not limited to the insurance and indemnity requirements, may be charged back to Seller and Seller expressly agrees to reimburse Company. Seller further agrees that Seller may deduct such costs, lost profits and expenses from any sum thereafter owed to Seller by Company.
CANCELLATION WITH CAUSE
Company reserves the right to cancel, without any Liability, any or all contracts or orders covering the Merchandise if Seller fails to ship the Merchandise in the manner or within the time specified herein or therein, or if it shall be alleged by third parties that the Merchandise manufactured, produced, sold, invoiced, packaged, labeled or shipped was in violation of any statute, ordinance, administrative order, rule or regulation, or violates any of Seller's warranties, whether express or implied, or if Seller is in violation of any material provision of this instrument. Any such cancellation shall be without prejudice to any other right or remedy which Company may have by reason of such default.
CANCELLATION FOR ANY REASON
In the event of cancellation by the Company of the contract or orders covering the Merchandise for any reasons other than as specified in Paragraphs 12 and 16 hereof, Company's liability, if any, shall be limited to, to the extent unpaid, (a) the price specified herein for the Merchandise which has been accepted upon the date of cancellation by Company and conforms to this instrument, and (b) actual costs (exclusive of profit) reasonably incurred by Seller in producing Merchandise not covered by sub-paragraph (a) above, but in no event shall Company's liability under this paragraph 17 exceed the aggregate price specified in this instrument for the Merchandise.
This instrument upon acceptance supersedes all previous agreements, if any, between the parties, and constitutes the sole and entire contract between them with respect to the Merchandise, and no change, amendment or modification of the terms and conditions set forth herein shall be effective unless made in writing and signed by both parties.
If any provision of this instrument and any agreement resulting herefrom is unenforceable or invalid, the instrument or agreement shall be ineffective only to the extent of such provision and the unenforceability or invalidity of the remaining provisions shall not be affected thereby.
This instrument and any agreement resulting herefrom may not be assigned by Seller, in whole or in part, except, by operation of law or otherwise, with the written consent of the Company. Seller shall not delegate any duties nor assign any rights or claims under this purchase order, or breach thereof, without written prior consent of the Company, and any such attempted delegation or assignment shall be void.
Paragraph headings are for convenience only and shall not be considered in construing or interpreting this instrument.
APPLICABLE LAW AND VENUE, DISPUTE BETWEEN COMPANY AND DOMESTIC SELLER
This order and any agreement resulting herefrom shall be interpreted, and the rights and liabilities of the parties here determined in accordance with the laws of the State of Illinois. As part of the consideration for the execution hereof by Seller, it is hereby agreed that all actions and proceedings between Company and a Domestic Seller arising directly or indirectly herefrom shall be determined by arbitration administered by the American Arbitration Association in accordance with its Commercial Rules. There shall be one arbitrator, and the place of the arbitration shall be Whiteside County, Illinois, USA
APPLICABLE LAW AND VENUE, DISPUTE BETWEEN COMPANY AND FOREIGN SELLER
This order and any agreement resulting herefrom shall be interpreted, and the rights and liabilities of the parties here determined in accordance with the laws of the State of Illinois. As part of the consideration for the execution hereof by Seller, it is hereby agreed that all actions and proceedings between Company and a Foreign Seller arising directly or indirectly herefrom shall be determined by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules. There shall be one arbitrator, and the place of the arbitration shall be Whiteside County, Illinois, USA. Seller and Company hereby exclude the application of the United Nations Convention on Contracts for the International Sale of Goods to these terms and conditions and all transactions occurring hereunder unless otherwise expressly agreed in writing.
Where this document acknowledges an order from Company for the Merchandise specified on the reverse side hereof, this acknowledgment contains the final, complete and exclusive agreement between Company and Seller. Company's acceptance of the Seller's offer is expressly conditional on assent to all of the terms and conditions set forth herein by Seller's authorized representative in writing.
CURRENT MATERIAL SAFETY DATA SHEETS
Must be furnished by the Seller where appropriate and as required by law.
Parts, components and materials supplied to the Company shall be uniform. That is, there shall be no change in design which would affect the form, fit, finish, functionality or serviceable parts of the item being supplied. A design change is any change in materials or material characteristics, as well as any dimensional changes. The Seller shall notify the Company in writing of all such changes at least 30 working days prior to implementation, unless otherwise specified by the Company.
Seller shall notify the Company in writing of any change to its manufacturing location at least 60 days prior to implementation.
Failure to insist on strict performance is not a waiver of any term or default by Seller.
Terms of Sale
SCOPE OF AGREEMENT
Seller, Wahl Clipper Corporation, upon acceptance of an order placed by Buyer, will supply the products and services specified in the order pursuant to and expressly limited by of all the terms and conditions stated herein. No additional terms contained in any document tendered by Buyer and no oral terms shall become a part of the agreement between the parties.
Shipment- Unless otherwise specifically indicated on the front of this document, all prices are for products packed for domestic shipment and for delivery EXW (Exworks) Incoterms 2010 Seller’s Facility Steling, IL. Shipping dates are approximate and based on prompt receipt of all necessary information. All risk of loss shall be upon Buyer upon Seller placing the goods in the possession of a common carrier or Buyer’s designated carrier. Buyer shall pay all transportation and delivery charges to final destination. Seller shall assist in tracing goods lost in transit. Shipment dates are not guaranteed. International Buyers shall forward to Seller, a copy of the bill of lading or air way bill as evidence of export. International Buyers shall provide Seller with copies of power of attorney (POA) between the Buyer and Buyer’s freight forwarder. International Buyer shall provide Seller with a copy of any automated export system (AES) entries where Seller is documented as the US principal party of interest (USPPI). Buyer shall remain obligated under this agreement unless released in writing by Seller.
Any use tax, sales tax, excise tax, duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever imposed by any governmental authority, on or measured by the transaction between Seller and Buyer shall be paid by Buyer. The amount of taxes stated on the face hereof, if any, is approximate only. Buyer is liable for the full amount of taxes applicable or resulting from this transaction. Buyer shall pay the amount of all such taxes, upon request by Seller, as if originally added to the price herein.
PaymentTerms of sale are net 30 days of the date of invoice, unless otherwise stated. Interest will be charged at 1.5 percent per month or the maximum amount allowed by applicable law, whichever is less, until paid in full. Partial shipments may be made and payments therefor shall be due 30 days after the date of shipment. Terms of sale herein are subject to credit approval and Seller may, in its sole discretion, at any time prior to delivery, modify the terms of payment originally specified to ensure prompt payment for products ordered.
Any changes to this offer requested by Buyer shall only be allowed if Seller expressly agrees to such changes in writing. Seller may accept or reject proposed changes in its discretion.
Seller shall retain a security interest in the products delivered hereunder until the total amounts due hereunder, including the selling price, taxes, delivery and/or other charges, are paid in full by Buyer. Buyer agrees to sign and deliver to Seller any additional security agreement required by Seller.
DEFAULT AND REMEDIES
If Buyer fails or refuses to accept delivery of the products ordered or defaults in the performance of any of the terms, covenants and conditions of this Agreement, Seller shall have available to it any remedy allowed by law or equity, and may recover all damages suffered as a consequence of Buyer’s breach, including reasonable costs and attorneys fees incurred in enforcing this Agreement or recovering such damages. Without limiting the foregoing, in the event of breach or default Seller shall have the right to retain the cash deposited or paid to it by Buyer if any, and apply the same toward payment of its damages. If products ordered have been delivered to Buyer by Seller at the time of default or breach, Seller may declare the full amount due and payable without notice or demand and may repossess the products as allowed by law.
Seller warrants to Buyer the products sold hereunder shall be free from defects in workmanship and material. This warranty shall be in effect for 12 months from the shipment date, but not to exceed 18 months from the date of manufacture as indicated by the date code stamping. This warranty shall not apply to products which, in the sole judgment of Seller, have been inadequately maintained or shelf-preserved, subjected to contamination, negligent handling, tampering or unauthorized disassembly. Liability under this warranty is limited to the repair or replacement, at Seller’s option, of the products determined to be defective upon examination and to be within the warranty period. The warranty period upon replacement or repair shall not extend beyond the date of expiration of the warranty period for the original product. Nothing hereunder shall be applicable to those defined as consumers in the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act.
WARRANTY DISCLAIMER AND LIMITATION OF LIABILITYTHE EXPRESS WARRANTY ABOVE IS IN LIEU OF ALL OTHER WARRANTIES (EXCEPT OF TITLE), EXPRESS OR IMPLIED, AND THERE IS NO IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE FOR THESE PRODUCTS. IN NO EVENT SHALL SELLER BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES RESULTING FROM EITHER DEFECT IN THE PRODUCTS OR ANY OTHER BREACH OF THE AGREEMENT BETWEEN THE PARTIES.
The performance of each party’s obligations under this Agreement are subject to all contingencies beyond the control of such party or its suppliers, including, but not limited to: Force Majeure; strikes; labor disputes; floods; fires; civil commotion; embargoes; quotas; shortage of labor; delays in transportation; or government action including, but not limited to price controls, currency controls, or detention of goods by authorities. Accordingly, the parties are to be relieved of any obligation to each other for damages which may result from contingencies; provided, however, the parties shall perform their obligations to the maximum extent as soon as possible.
BUYER’S CANCELLATION AND RETURNS
Buyer may cancel, reduce or modify its order only upon Seller’s consent and by paying any fee or cancellation charge calculated by the Seller. Acceptance of returned goods is solely in the Seller’s discretion and prior written authorization is required.
LIMITATION ON ASSIGNMENT
Seller and Buyer may not assign obligations under this Agreement without prior written consent of the other.
The provisions hereof are intended by Buyer and Seller as the final expression of their agreement and are intended as the complete and exclusive statement of all terms applicable to Buyer’s order. No waiver, modification or addition to any of the terms hereof shall be binding on Seller.
SeverabilityIf any provision of this instrument is unenforceable, the instrument shall be ineffective only to the extent of such provision, and the validity of the remaining provisions shall not be affected.
The rights and obligations of Seller and Buyer shall be governed by the substantive laws of the State of Illinois. All actions and proceedings arising directly or indirectly from these terms and conditions shall be litigated in the courts of the State of Illinois or United States courts located therein. Seller and Buyer hereby exclude the application of the United Nations Convention on Contracts for the International Sale of Goods to these terms and conditions and all transactions occurring hereunder unless otherwise expressly agreed in writing.
RESTRICTIONS ON RESALE
Buyer warrants that it will not resell, ship, or transfer, directly or indirectly, any of the products covered by these terms and conditions to third parties located in countries to which such resale, shipment, or transfer is prohibited by United States Export Control Regulations, Trading with the Enemy Act, International Emergency Economic Powers Act, or any similar law or regulation.