AJAX TOCCO INTERNATIONAL LTD.
TERMS AND CONDITIONS OF PURCHASE
1. Acceptance. This Purchase Order ("Order") is an offer to Seller by Ajax Tocco International Ltd. ("Ajax Tocco") for the purchase of goods and/or services and is governed by these Terms and Conditions of Purchase ("Terms"). This Order supersedes all prior agreements, orders, quotations, proposals and other communications regarding the goods and/or services covered by this Order, except that a signed prior agreement (such as a Non-Disclosure Agreement) will continue to apply to the extent not directly in conflict with this Order. Any other modification of these Terms must be expressly stated in this Order. This Order does not constitute an acceptance of any offer or proposal made by Seller. Any reference in this Order to any offer or proposal made by Seller is solely to incorporate the description or specifications of goods and/or services in the prior proposal, but only to the extent that the description or specifications do not conflict with the description and specifications in this Order. Seller accepts these Terms and forms a contract by doing any of the following: (a) commencing any work under this Order; (b) accepting this Order in writing; or (c) any other conduct that recognizes the existence of a contract with respect to the subject matter of this Order. THIS ORDER IS LIMITED TO AND CONDITIONAL UPON SELLER’S ACCEPTANCE OF THESE TERMS EXCLUSIVELY. Any additional or different terms proposed by Seller, whether in Seller’s quotation, acknowledgement, invoice or otherwise, are material alternations and are unacceptable to Ajax Tocco, and are expressly rejected by Ajax Tocco, and will not become part of this Order.
2. Specifications and Quantities. All goods and/or services furnished under this purchase Order must comply strictly with any specifications, instructions, drawings, data, samples and other descriptions furnished or accepted by Ajax Tocco. Quantities listed in this Order are Ajax Tocco’s best estimate of the quantities of goods it might purchase from Seller for the contract term specified in this Order. If no other quantity is stated on the face of this Order or if the quantity is blank or states “zero”, “blanket,” “see release” or similar term, then for consideration of £10.00 to be paid by Ajax Tocco upon expiration or termination of this Order, Seller grants to Ajax Tocco an irrevocable option during the term of the Order to purchase Supplies in such quantities as determined by Ajax Tocco and identified as firm orders in material authorization releases, manifests, broadcasts or similar releases (“Material Releases”) that are transmitted to Seller during the term of the Order, and Seller will supply all such Supplies at the price and other terms specified in the Order; provided that Ajax Tocco may purchase no less than a minimum quantity of at least one piece or unit of each of the Supplies and no more than 100% of Ajax Tocco’s requirements for the Supplies. If the Order covers services, Ajax Tocco is required to purchase such services to the extent expressly stated in a Statement of Work signed by Ajax Tocco. If “price” is stated as 1.000 on an Order covering installment performance of a fixed total quantity, then quantity is 1 and the number shown under “quantity” is the price. Unless expressly stated on the face of the Order or in a signed agreement, Ajax Tocco is not required to purchase Supplies exclusively from Seller.
3. Price and Payment. Prices shall be as agreed to between Ajax Tocco and Seller and specified in this Order. Seller warrants to Ajax Tocco that all prices, terms, warranties and benefits taken as a whole granted to Ajax Tocco are at least as favorable as those offered by Seller to any of its other customers ordering similar goods and/or services in similar quantities. Seller agrees that any price reduction made in goods and/or services covered by this Order subsequent to the placement of this Order will be immediately applicable to this Order. Except as provided in the preceding sentence, prices are firm for the duration of this Order, and no price increase, surcharge or other addition to the price may be applied to the goods and/or services, except if specified on the face hereof. Except as may be otherwise provided in this Order, the price includes all applicable federal, state and local taxes. Payment for goods and/or services accepted by Ajax Tocco shall be net 60 days from the date of receipt of an accurate invoice from Seller, unless otherwise specified. Ajax Tocco may withhold payment pending receipt of evidence, in the form and detail requested by Ajax Tocco, of the absence of any liens, encumbrances, or claims on goods and/or services provided under this Order.
4. Changes. Ajax Tocco may, at no charge, request rescheduling of the delivery of any order for goods and/or services. Ajax Tocco reserves the right at any time to make changes in drawings, designs, specifications, quantities and delivery schedules as to any goods and/or services covered by this Order and Seller shall be bound by any such changes. Any differences in price or time for performance resulting from such changes shall be equitably adjusted and agreed to by Ajax Tocco. Any claim by Seller for adjustment under this Article must be asserted within thirty (30) days from the date of notification of the change.
5. Delivery. Time of delivery and quantities ordered are of the essence of this Order. Deliveries of goods or services ordered hereunder are to be made both in the quantities and at the times specified by this Order and Seller agrees to 100% on-time delivery of the quantities and at the times specified by Ajax Tocco. Ajax Tocco shall have the right, at no charge to Ajax Tocco, to: (a) refuse to accept delivery if shipments are made in advance of schedules herein or if quantities are in excess of this Order or (b) cancel this Order if shipment or performance is not made in accordance with such schedules for quantities, or time periods. In the event Seller fails to deliver the goods and/or services hereunder in accordance with the delivery dates or other agreed to schedule incorporated into this Order or any applicable release, Ajax Tocco, in addition to any other remedies available to it at law or in equity, shall be entitled to collect from Seller the excess cost of re-procuring similar items or services, and any consequential, incidental or indirect damages arising out of Seller's late or non-delivery. Ajax Tocco shall have the right to offset any claim for reimbursement of costs and damages against any and all sums owing to Seller. Payment of Ajax Tocco's costs and damages shall not relieve Seller from performance of any of its obligations under the applicable Order. Any provisions herein for delivery of goods and/or services or the rendering of services by installments shall not be construed as making the obligations of Seller severable.
6. Force Majeure. Neither Ajax Tocco nor Seller shall not liable for failure to perform their respective obligations under this Order to the extent such delay or failure is due to fire, flood, explosion, war, acts of terrorism, riot, acts of God or the public enemy, or any act or event of any nature beyond its reasonable control and which were neither foreseeable nor due to the party's negligence, provided written notification of excusable delay is given to the other party within ten (10) days of the occurrence causing same. Notwithstanding the foregoing, an actual or potential labor dispute or shortage of materials shall not be deemed to constitute an act of force majeure. If Seller is subject to a force majeure event that lasts for fourteen (14) days or more, Ajax Tocco may, in addition to any other rights granted herein or under law or equity, terminate this Order, in whole or in part, without liability on account thereof.
7. Title and Risk of Loss. Title to and risk of loss or damage to, the goods and/or services shall transfer to Ajax Tocco at the time Seller delivers and Ajax Tocco accepts delivery of the goods and/or services.
8. Inspection. All goods and/or services are subject to Ajax Tocco’s inspection, including at the source, if deemed necessary by Ajax Tocco or required by government regulation. Ajax Tocco may reject the entire shipment, where it consists of a quantity of similar articles and sample inspection discloses that the articles inspected contain defective design, material or workmanship or do not conform to specifications or samples, unless, at Ajax Tocco’s discretion, Seller agrees to reimburse Ajax Tocco for the cost of a complete inspection sort of the articles included in such shipment. Payment for the goods or services furnished hereunder shall not constitute acceptance thereof. Acceptance, inspection, or failure to inspect by Ajax Tocco does not relieve Seller of any of its responsibilities or warranties.
9. Adequate Assurance. If Seller’s financial condition is found to be or becomes unsatisfactory to Ajax Tocco in its sole discretion, during the term of this Order, or should Seller’s ability to perform become doubtful, Ajax Tocco may demand immediate assurance of performance, and in the event that such assurance is not forthcoming within five (5) working days, Ajax Tocco may terminate this Order and also terminate all other contracts with Seller whether or not Seller may otherwise be in default, and no rights shall accrue to Seller against Ajax Tocco on account of any such terminations. Ajax Tocco’s duties hereunder are conditioned upon the continuance of Seller’s solvency and Seller’s ability to perform within the delivery schedule.
10. Warranties. Seller represents and warrants that all goods covered by this Order shall: (a) be merchantable, free from defects in design (except to the extent the design is provided by Ajax Tocco), material and workmanship; (b) be selected, designed (to the extent the design is provided by Seller), manufactured and assembled by Seller based upon Ajax Tocco’s stated use and be fit and sufficient for the purposes and conditions intended by Ajax Tocco, whether express or implied; (c) conform strictly to specifications, instructions, drawings, data, samples and other descriptions furnished or accepted by Ajax Tocco; (d) conform to all applicable laws, orders, regulations and standards in countries where the goods are produced or are to be sold; and (d) be free from liens or encumbrances. Seller warrants that all services shall be performed in a professional and workmanlike manner consistent with all standards and specifications agreed on with Ajax Tocco and in accordance with standard industry practice. Seller further warrants that it has good title to the goods, free and clear of all liens and encumbrances. All warranties run to Ajax Tocco and its customers and end-users, and survive any inspection, delivery, acceptance or payment by Ajax Tocco. The warranty period is the longest of: three years from the date Ajax Tocco accepts the Supplies; the warranty period provided by applicable law; or the warranty period offered by Ajax Tocco or Ajax Tocco’s customer to end-users. Seller will immediately notify Ajax Tocco in writing when it becomes aware of any ingredient, component, design or defect in the good and/or services supplied that is or may become harmful to persons or property. Ajax Tocco’s approval of any design, drawing, material, process or specifications will not relieve Seller of these warranties.
11. Remedies for Warranty Failure. In the event of any failure to meet any of the warranties set forth above, Ajax Tocco may, in addition to any other rights it may have, at its option, (i) return the defective goods to Seller for refund, repair, or replacement at Seller’s risk of loss, damage and expense; or (ii) repair, repurchase or replace for itself all goods and/or services failing to meet the above warranties. All costs incurred as a result of Seller's supply of defective goods and/or services including, but not limited to costs of repurchase or replacement, manpower and field service, shall be charged to and borne by Seller. Seller shall pay any such invoice within thirty (30) days from receipt. If any defective goods are returned to Seller for repair or replacement, the repaired or replacement goods shall be shipped freight prepaid to Ajax Tocco within ten (10) days of receipt by Seller of the defective goods, unless otherwise specified by Ajax Tocco. Risk of loss or damage during shipment shall be the responsibility of Seller.
12. Gratuities. Seller warrants that it has not and will not offer or give to any employee, agent or representative of Ajax Tocco any gratuity with a view toward securing any business from Ajax Tocco. Any breach of this warranty shall be a material breach of each and every contract between Ajax Tocco and Seller.
13. Indemnification. Seller agrees to defend, indemnify and hold harmless Ajax Tocco, its customers and end-users from and against any and all loss, damage, liability, cost and/or expense whatsoever (including consequential, incidental and special damages, and including reasonable attorneys' fees and court costs) caused in whole or in part by: (i) Seller’s acts or omissions, including but not limited to, any loss arising from breach of contract, negligence, strict liability or failure to warn; (ii) the defective design (to the extent the design is provided by Seller), material or workmanship in the goods furnished under this Order; (iii) breach of any applicable laws, orders, regulations or standards; or (iv) any actual or alleged infringement of patents, copyrights, trademarks, trade names, trade secrets and/or other intellectual property rights arising out of or resulting from the sale and/or use of any goods and/or services provided hereunder. Ajax Tocco shall notify Seller of any such claim, suit or action that becomes known to Ajax Tocco, afford Seller control of the conduct of such settlement or defense, and provide Seller with its reasonable assistance, at Seller's expense. If use of any product found to be infringing hereunder is enjoined, Seller shall, at Ajax Tocco’s option and Seller’s expense, either (a) procure for Ajax Tocco the right to continue using the allegedly infringing product; or (b) modify or replace it with non-infringing product suitable to Ajax Tocco’s form, fit and function standards, safety standards, and customer requirements, or (c) accept the return of the goods and provide Ajax Tocco with a full refund.
14. Insurance. Seller shall maintain at all times during the performance of the contract for Ajax Tocco under the contract which results from the acceptance of this Order, workers’ compensation insurance with applicable statutory limits, employer’s liability of £1,000,000 limit, and commercial general liability insurance including products, completed operations, and contractual liability coverages with limits of £1,000,000 bodily injury and property damage, £1,000,000 products and completed operations, £2,000,000 General Aggregate, and Automobile on a combined single limit of £1,000,000 per occurrence. Seller shall furnish to Ajax Tocco, upon request, an insurance certificate and/or state issued certificate evidencing the above coverages. Insurance certificates shall be endorsed to provide that Ajax Tocco is named as an additional insured with respect to the commercial general liability, and shall be notified in writing at least thirty (30) days prior to any substantial modification or termination of the subject policy.
15. Liens. Seller shall be solely responsible for all claims of whatever nature arising out of non-payment for services, labor and materials furnished or contracted for by Seller in performance of work hereunder, including all liens which may be levied against Ajax Tocco or its customer. Before payment, or at any time upon Ajax Tocco’s request, Seller shall furnish Ajax Tocco with an affidavit conforming to the laws of the state in which the work is performed, or in absence of any such law, then an affidavit satisfactory to Ajax Tocco, setting forth the names and amounts due and remaining unpaid to all persons furnishing services, labor, or materials hereunder. Ajax Tocco shall have the right to pay directly to all such lien-holders or Seller’s creditors any and all such amounts as may be due them and deduct same from any payments due to Seller.
16. Confidential Information. All of the information belonging to or supplied by or on behalf of Ajax Tocco hereunder is confidential and/or proprietary and shall be treated as confidential and/or proprietary. Seller shall not, without prior written consent of Ajax Tocco, use or disclose any data, designs, drawings, specifications, know-how or other information belonging to or supplied by or on behalf of Ajax Tocco, except in performance of orders for Ajax Tocco. Upon Ajax Tocco’s request such data, designs, drawings, specifications, know-how or other information and all copies thereof shall be promptly returned to Ajax Tocco. Seller agrees not to disclose any of its confidential and/or proprietary information to Ajax Tocco.
17. Continuing Availability of Maintenance, Replacement, and Repair Parts. Seller shall notify Ajax Tocco in writing at least one hundred eighty (180) days prior to the date on which Seller intends to discontinue supplying goods and/or services covered by this Order or no longer make such goods and/or services available. Seller agrees to offer for sale to Ajax Tocco, at the then existing Order price, the opportunity for a lifetime buy of goods covered by this Order. In the event Seller fails to supply the foregoing or Seller is unable to obtain another source of supply for Ajax Tocco, then in addition to whatever other rights and remedies Ajax Tocco may have at law or in equity, Ajax Tocco may require Seller, without obligation or charge to Ajax Tocco, to provide Ajax Tocco with the technical information or any other rights required so that Ajax Tocco can attempt to manufacture, have manufactured or obtain such parts from other sources. Such technical information shall include, without limitation: (1) manufacturing drawings and specifications of raw materials and components comprising such parts; (2) manufacturing drawings and specifications covering special tooling and the operation thereof; (3) a detailed list of all commercially available parts and components purchased by Seller on the open market disclosing the part number, name, and location of the supplier; and (4) Seller's know how.
18. Termination. (i) This Order may be terminated immediately by Ajax Tocco without liability to Seller if any of the following or comparable events occur, and Seller will reimburse Ajax Tocco for all costs incurred by Ajax Tocco in connection with any of the following, including without limitation attorneys’ and other professional fees: (a) Seller becomes insolvent; (b) Seller files a voluntary petition in bankruptcy; (c) an involuntary petition in bankruptcy is filed against Seller; (d) a receiver or trustee is appointed for Seller; (e) Seller needs accommodations from Ajax Tocco, financial or otherwise, in order to meet its obligations under this Order; or (f) Seller executes an assignment for the benefit of creditors.
(ii) Ajax Tocco may terminate all or any part of this Order, without liability to Seller, if Seller: (a) repudiates, breaches or threatens to breach any of the terms of this or any other Order; (b) fails or threatens not to deliver goods or perform services in connection with any Order; (c) fails to make progress or to meet reasonable quality requirements so as to endanger timely and proper completion or delivery of goods and/or services and does not correct the failure or breach within ten (10) days (or such shorter period of time if commercially reasonable under the circumstances) after receipt of written notice from Ajax Tocco specifying the failure or breach.
(iii) Ajax Tocco, by written notice, may terminate this Order in whole or in part at any time for its convenience. If this Order is terminated for the convenience of Ajax Tocco, Seller shall be compensated proportionately to the extent that goods and/or services ordered have been delivered to and accepted by Ajax Tocco prior to the effective date of termination. Other than to this extent, Ajax Tocco shall not be liable to Seller for any damages on account of its failure to accept all of the goods and/or services ordered. In addition to the foregoing, Ajax Tocco shall be entitled to a refund of any progress payment made prior to the date of termination.
19. Remedies. The remedies herein reserved shall be cumulative and additional to any other or further remedies provided at law or in equity. Seller will reimburse Ajax Tocco for any incidental or consequential damages caused by Seller’s breach or by nonconforming goods and/or services, including without limitation costs, expenses and losses incurred directly or indirectly by Ajax Tocco or its customer(s): (a) in inspecting, sorting, repairing or replacing the nonconforming goods; (b) resulting from production interruptions; (c) conducting recall campaigns or other corrective service actions; or (d) resulting from personal injury (including death) or property damage caused by the nonconforming goods and/or services. Ajax Tocco’s damages include reasonable attorneys' and other professional fees incurred by Ajax Tocco. If requested by Ajax Tocco, Seller will enter into a separate agreement for the administration or processing of warranty charge-backs for nonconforming goods and/or services, and will participate in and comply with warranty reduction or related programs as directed by Ajax Tocco that relate to the goods and/or services. In any action brought by Ajax Tocco to enforce Seller’s obligations in connection with the production or delivery of goods and/or services, the parties agree that Ajax Tocco does not have an adequate remedy at law and Ajax Tocco is entitled to an immediate order for specific performance of Seller’s obligations, plus Ajax Tocco’s reasonable attorneys’ fees.
20. No Waiver. No delay or failure by either party to exercise or enforce at any time any right or provision in this Order shall be considered a waiver thereof or of such party’s right thereafter to exercise or enforce each and every right and provision of this Order.
21. Compliance with Laws. In furnishing goods and/or services required under this Order or any amendment thereto, Seller represents, warrants and agrees that it shall comply with the provisions of all applicable federal, state, and local laws, regulations, and orders. Without limiting the generality of the foregoing, Seller specifically agrees to comply with all applicable laws, statutes, regulations, and codes relating to anti-slavery, anti-bribery and anti-corruption, including the Modern Slavery Act 2015 and the Bribery Act 2010.
22. Governing Law and Jurisdiction. The validity, interpretation and performance of this Order and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales. Each party consents to the jurisdiction noted above and agrees it will not contest such jurisdiction or assert that such jurisdiction is not a convenient forum. Notwithstanding the above, Ajax Tocco and Seller expressly agree that the U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Order and is specifically and wholly excluded.
23. Chemical Substances Identification. By acceptance of this Order, Seller certifies that any chemical substance(s) furnished pursuant to this Order have been properly labeled, and that proper information regarding the substance(s), for example, material safety data sheets, has been provided to Ajax Tocco in accordance with any and all federal, state or local legislation.
24. Assignment. No assignment of this Order by Seller shall be binding unless agreed to by Ajax Tocco in writing.
25. Entire Agreement. This Order constitutes the entire agreement between the parties hereto relating to the subject matter hereof and supersedes all prior oral and written and all contemporaneous oral negotiations, commitments and understandings of the parties. This Order may not be changed or amended except by a writing executed by both parties hereto.
Conflict Minerals: Seller will disclose whether Goods contain any conflict minerals as defined under Section 1502 of the U.S. Dodd-Frank Act and its implementing regulations (collectively the “Conflict Minerals Law”) that are necessary to the production or functionality of the Goods (“Conflict Minerals”). If Goods contain any Conflict Minerals seller must: (i) provide on request, information on Conflict Mineral smelters in the relevant supply chains including whether those smelters are DRC Conflict-Free; (ii) provide on request, such other information as Buyer may reasonably require, to determine the DRC Conflict-Free status of Conflict Minerals used in Goods.