Download a PDF Copy of Full Kinetico Purchase Order Terms and Conditions.
1. ENTIRE AGREEMENT
This order constitutes Kinetico Incorporated ("Kinetico's") offer to Seller, and acceptance either by written acknowledgement or by commencement of performance shall form a binding contract between the parties, subject to the terms and conditions hereof which shall constitute the entire agreement (“Agreement”) between Kinetico and Seller. It shall supersede any other agreements or understandings made prior to the date of this order, excluding specifications provided by Kinetico and any definitive agreement executed in writing by both Seller and Kinetico, in which case, the definitive agreement shall control over any conflicting terms and conditions in this Agreement. Additional or different terms proposed by Seller are hereby rejected and shall not form a part of the agreement between Kinetico and Seller unless agreed to and accepted in writing by an authorized representative of Kinetico. If this purchase order shall be deemed an acceptance of a prior offer by Seller, such acceptance is limited to the terms and conditions of this purchase order. This purchase order shall not operate as a rejection of the Seller's offer unless it contains variances in the terms of the description, quantity, price or delivery schedule of the goods or services.
Seller represents that the price or prices specified in this order do not exceed the current selling price for the same or substantially similar goods or services to any other purchaser, taking into account the quantity of the goods or services ordered. If this order is not priced, it is understood that Seller will not charge, without Kinetico's consent, a higher price for the goods or services called for in this order than was last quoted or charged Kinetico. Kinetico shall have the right by written notice to Seller to request an adjustment of the price of the goods or services covered by this order, and the failure of Seller and Kinetico to agree upon any requested change in price shall release Seller from its obligation to make deliveries pursuant to this order and shall release Kinetico from its obligation to accept further shipments. Unless otherwise provided on the face of this order, the price or prices appearing hereon shall include all packaging, crating, and federal, state and local taxes.
3. SET OFF
Kinetico shall be entitled at all times to set off any amount owing at any time from Seller to Kinetico or any of its affiliated companies against any amount payable at any time by Kinetico or any of its affiliated companies to Seller.
4. KINETICO'S PROPERTY
Unless otherwise stated in this Agreement Seller shall furnish all material, equipment, tools and facilities required to fulfill this Agreement. Title to all property furnished to Seller by Kinetico or specifically paid for by Kinetico or the cost of which is fully or substantially included in the price of goods or services purchased hereunder, and any replacement thereof or any materials affixed or attached thereto, shall be and remain in Kinetico together with the right to possession. Seller shall use said property only in performance of work for Kinetico. Seller at its expense will maintain all property in good condition and repair and shall replace said property to the extent necessary for the fulfillment of this Agreement. Kinetico does not warrant the accuracy of any models or samples which it furnishes to Seller and all items produced must be in strict compliance with the specifications, terms and requirements of this Agreement. Upon completion or termination of this Agreement all property of Kinetico shall be retained by Seller at its expense until written instructions as to the disposition of said property are received by Seller from Kinetico. Seller shall pay all personal property taxes on the property in its possession.
Any pattern ordered hereunder shall become the property of Kinetico upon payment therefor. Seller agrees that it will maintain the pattern, including gating, in a normal fashion and shall be responsible for any damage or wear other than normal wear of said pattern during the time it is in Seller's possession. The pattern, including gating, shall be returned to Kinetico in good condition, normal wear excepted, upon notice by Kinetico.
6. PROPRIETARY INFORMATION
Any specifications, drawings, designs, manufacturing data and other information transmitted to Seller by Kinetico in connection with the performance of this Agreement are the property of Kinetico and are disclosed in confidence upon the condition that they are not to be reproduced, copied or used for furnishing information or equipment to others, or for any other purpose detrimental to the interest of Kinetico, unless Kinetico's written consent is first obtained. Upon completion or termination of this Agreement, Seller shall return all such items to Kinetico or make such other disposition thereof as may be directed or approved by Kinetico.
7. INSPECTION AND ACCEPTANCE
All goods or services ordered are subject to final inspection and acceptance at their destination by Kinetico within a reasonable time, notwithstanding prior payment or inspections at their source, it being expressly agreed that payment shall not constitute final acceptance. Kinetico without limitation of its other rights pursuant to this order, may reject any item which contains defective materials or workmanship or does not conform to Kinetico's specifications, blueprints, samples or is not as ordered. Rejected items may be returned at Seller's risk and expense at the full invoice price plus incoming transportation charges, if any, and no replacement of defective items shall be made unless specified in writing by Kinetico. Seller shall provide a complete inspection system, satisfactory to Kinetico, covering the inspection of all materials, fabricating methods, jigs, fixtures, dies and unfinished articles. Kinetico shall have the right to inspect Seller's plant or facility at all reasonable times during the performance of this order. The acceptance of any goods or services shall not be deemed to alter or affect the obligations of Seller or the rights of Kinetico under any other provisions of this order.
8. WARRANTY AND INDEMNIFICATION
Seller warrants that all goods or services delivered hereunder are free from defects in materials and workmanship and conform strictly to the specifications, or drawings specified or furnished to Seller. To the extent that such goods or services are not furnished pursuant to specifications or a design furnished by Kinetico, they will be free from defects in design, suitable for their intended purpose and free from any industrial property rights. These warranties shall survive any inspection, delivery, acceptance, payment or use by Kinetico or its customers of the goods or services and shall run to Kinetico, its successors, assigns, customers, and users of its products. Seller shall defend, indemnify and hold harmless Kinetico, its successors, assigns, customers and users of its products and each of them from and against any and all loss, injury and damage suffered by any of them and against any and all suits, proceedings of law or in equity and any and all liability for losses, injuries and damages, including all reasonable attorney's fees, arising out of or in connection with any claim by any person, firm or organization, including Kinetico, its successors, assigns, customers and users of its products, that the materials or services furnished by Seller are or were defective, infringing or injurious in any manner.
Seller shall maintain public liability insurance (including products liability, completed operations, contractors liability and protective liability), automobile liability insurance (including non-owned automobile liability), workmen's compensation and employer's liability insurance and shall adequately protect Kinetico against such damages, liabilities, claims, losses and expense. Seller agrees to submit certificates of insurance evidencing its insurance coverage when requested by Kinetico.
9. INTELLECTUAL PROPERTY
Kinetico shall indemnify and save and hold harmless Seller from any claim that goods manufactured or supplied pursuant to a design or specification furnished by Kinetico infringes upon any United States patent, except that the design or specification shall be deemed not to be furnished by Kinetico if the subject matter of the claim was derived from or selected by Seller or relates to materials, compositions or alloys or processes relating thereto. Seller shall indemnify and save and hold harmless Kinetico and each subsequent purchaser or user from any claim that the use of goods manufactured or supplied other than to a design or specification furnished by Kinetico or their resale infringes upon any United States patent, copyright, trademark or other proprietary right. Upon the making of any claim indemnified hereunder or the commencement of any suit or action having its basis in such, the party against whom such claim is made, or suit or action is commenced, shall promptly notify the other in writing; and the party required to assume liability therefor under the foregoing provisions shall promptly and diligently conduct the entire defense therefor, at its sole cost and expense, provided, that the party not required to assume liability shall have the right, insofar as its interests are affected, at its sole election (but at its own cost and expense) to request the court to permit it to intervene in any such suit or action or to cooperate in the defense thereof, with the party required to assume liability, without releasing any obligation, liability or undertaking of the latter party; and, provided further that Kinetico shall have the right, insofar as its interests are affected, at its sole cost and expense, to supersede Seller in any such defense and thereafter to assume and conduct the same according to Kinetico's sole discretion, in which event Seller shall be thereby released from its obligation to Kinetico as to the particular goods involved.
When Seller is employed to design, develop or invent specific goods or services, all work made in fulfilling this order shall be the sole property of Kinetico and Seller shall, at the request and expense of Kinetico, cause applications for the patent, patents or copyrights covering such goods or services to be executed and assigned to Kinetico. All copyrightable work done by Seller under this purchase order shall be considered a work for hire.
Kinetico may at any time by written notice make changes in the drawing, designs or specifications where the goods or services to be furnished are to be specially produced for Kinetico in accordance therewith; the method of shipment or packing; the place or time of inspection, delivery or acceptance; and, the amount of goods or services to be furnished for Kinetico. If any such changes causes an increase or decrease in the cost of or the time required for performance of this order, an equitable adjustment shall be made in the price or delivery schedule or both. No claim by Seller for adjustment hereunder shall be allowed unless made in writing within thirty (30) days from the date notice of change is received by Seller. Where the cost of property rendered unusable or excess as the result of a change is included in Seller's claim for adjustment, Kinetico has the right to take title thereto and prescribe the manner of disposition thereof. Nothing contained in this clause shall excuse Seller from proceeding with performance of this Agreement as changed. Seller shall not make any changes in the drawings, designs, specifications, materials, production or manu- facturing means, methods or location of the goods and services furnished by Seller to Kinetico, without Kinetico's prior written consent. At Kinetico’s request and in strict compliance with this order, Seller agrees to timely and completely respond to any requests for formulations and/or formulation data of any and all materials supplied by Seller that will become part of a certified part or system manufactured or distributed by Kinetico.
Except as otherwise specified herein, delivery shall be strictly in accordance with the delivery schedule set forth or referred to in this order. If Seller's deliveries fail to meet said schedule with the result that Kinetico elects in lieu of termination for default to call upon Seller to have goods shipped express, Seller shall be responsible for the cost of shipment. Seller also agrees to pay Kinetico liquidated damages of one tenth of one percent (0.10) of the total purchase order price for each calendar day of delay beyond the originally scheduled delivery date. Title to the goods covered by this order shall pass from Seller to Kinetico at the f.o.b. point specified herein. Passing of title upon delivery to the f.o.b. location shall not constitute acceptance of the goods by Kinetico. Kinetico may require Seller to ship goods to a United States location other than Kinetico and Kinetico agrees to pay any freight or other transportation costs incurred by such shipment.
12. FORCE MAJEURE
Neither Kinetico nor Seller will be considered into default in performance of their obligations hereunder to the extent that performance of such obligations is affected by
Force Majeure. This includes, but is not limited to, wars, strikes, fires, floods, earthquakes, explosions, blockades, embargoes or any acts of God.
No variation in the quantity of any goods or services shall be accepted unless such variation has been caused by conditions of loading, shipping or packing or as allowances in the manufacturing process and then only to the extent allowed on the face of this order. All goods or services shipped in excess of the quantity ordered or the variation permitted may be returned by Kinetico at Seller's expense. If no packing list is enclosed with shipment showing net weight, Kinetico's net weight shall govern in the event of discrepancy.
All goods or services shall be suitably packed, marked and shipped in accordance with the requirements of common carriers in a manner which shall secure the lowest transportation cost and no additional charge shall be made to Kinetico therefor unless otherwise stated herein.
15. TERMINATION UPON DEFAULT
If Seller fails to make any delivery or perform any service in accordance with the specified delivery dates or otherwise fails to comply with this order, if Seller fails to make progress to such an extent that performance of this order is endangered or if any proceeding is filed by or against Seller in bankruptcy or insolvency, or for appointment of a receiver or trustee, Kinetico may terminate all or any part of this order by written or telegraphic notice to Seller without liability and may purchase substitute goods or services elsewhere and Seller shall be liable to Kinetico for any increase in expenses incurred by Kinetico as well as any damages incurred by Kinetico as a result of Seller’s failure to make delivery or perform any service in accordance with the specified delivery dates or otherwise fails to comply with this order. If this order is terminated as provided in this Paragraph 15, then Kinetico may require Seller to transfer title and deliver to Kinetico all completed goods or services and such partially completed goods, materials, parts, tools, dies, jigs, fixtures, plans, drawings, information and contract rights as the Seller has specifically produced or specifically acquired for the performance prior to termination. The rights and remedies of Kinetico provided in this order shall not be deemed exclusive and are in addition to any other rights and remedies provided by law. Except with respect to defaults of subcontractors, Seller shall not be liable for any increased expenses incurred by Kinetico if the failure to perform this order arises out of causes beyond the control and without the fault or negligence of Seller. If the failure to perform is caused by the default of a subcontractor at any time, and if such default arises out of causes beyond the control of both the Seller and the subcontractor, and without the fault or negligence of either of them, Seller shall not be liable for any increase in the expenses incurred by Kinetico unless the supplies or services to be furnished by the subcontractor could be obtained by the Seller from other sources in sufficient time to permit Seller to meet the required delivery schedule.
16. TIME OF THE ESSENCE
Time is and shall remain of the essence of this Agreement and no act of Kinetico, including without limitation modifications of this Agreement or acceptance of late deliveries, shall constitute a waiver of this provision. Kinetico reserves the right to refuse or return at Seller's risk and expense shipments made in advance of required delivery schedules or to defer payment on advance deliveries with scheduled delivery dates. Seller shall immediately notify Kinetico of any actual or potential labor dispute which is delaying or threatens to delay the timely performance of this Agreement and shall give Kinetico notice of all relevant information with respect thereto. Seller shall insert the substance of this clause, including this sentence, in any purchase order or subcontract hereunder.
17. VOLUNTARY TERMINATION
Kinetico may terminate this order in whole or in part at any time for any reason whatsoever by written or telegraphic notice. Upon receipt thereof Seller shall and to the extent directed by Kinetico terminate work under this order and any subcontracts outstanding hereunder and take any necessary action to protect property in Seller's possession in which Kinetico has or may acquire an interest. Unless and to the extent otherwise specifically provided for elsewhere herein, the only liability of Kinetico for termination of this order in whole or in part is to pay Seller 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 incurred prior to termination. Such payment by Kinetico shall be in full satisfaction of all claims which Seller may have against Kinetico under this order or for the termination hereof.
Seller shall at Seller's sole cost and expense maintain a policy or policies of insurance satisfactory to Kinetico, insuring all property on Seller's premises, owned by Kinetico, against loss or damage resulting from fire (including extended coverage) malicious mischief and vandalism. Satisfactory evidence of procurement of such insurance shall be provided to Kinetico within a reasonable number of days of acceptance of this order. Seller shall be responsible for loss of or damage to property of Kinetico and to all property furnished to Seller pursuant to this Agreement caused by the negligence or wrongful acts or omissions of Seller, its representatives, agents or employees. Seller shall be responsible for returning any such property in as good condition as when received, except for reasonable wear and tear or for the utilization of it in accordance with the provisions of this Agreement. Seller shall not include any amount in its price for insurance on said property.
19. STATUTORY COMPLIANCE
Seller warrants that all goods or services furnished under this Agreement, including the manufacture and sale thereof, conform to all applicable federal, state and local statutes, regulations and ordinances including the Fair Labor Standards Act of 1938 as amended. Seller further certifies and warrants that to the extent required by law, it is in full compliance with all of the provisions of the Equal Opportunity Clause issued under Executive Order 11246 and the Occupational Safety and Health Act.
Seller shall not, without first obtaining the written consent of Kinetico, in any manner advertise or publish the fact that Seller has furnished or has contracted to furnish Kinetico with the products purchased pursuant to this order.
Assignment by Seller of this order, any part hereof, or any monies due hereunder without the prior written consent of Kinetico shall be void, and none of the work contemplated by Kinetico to be performed by Seller pursuant to this order shall be subcontracted without the prior written consent of Kinetico.
Failure of Kinetico to insist upon strict performance of any term or condition contained herein shall not be deemed a waiver of any subsequent default in the performance of the same or any other term or condition.
Invoice in triplicate shall (a) be rendered separately for each delivery (b) cover not more than one order (c) be rendered with order number thereon. If invoice is subject to discount, the discount period will be calculated from the date of receipt of the invoice by Kinetico.
24. GOVERNING LAW
This Agreement and the interpretation, construction and enforcement hereof shall be governed by the laws of the State of Ohio.