| WARN INDUSTRIES, INC.
PURCHASE ORDER
STANDARD TERMS AND CONDITIONS
(Incorporated into each Purchase Order issued by Warn Industries, Inc.)
SHIPPING INSTRUCTIONS
1. Shipment and delivery shall be strictly in accordance with the schedule,
quantities, and other requirements set forth in the Order (as defined below). Delays in
shipment, including the reasons therefore, shall be reported immediately by Seller to
Buyer. Time is of the essence with respect to the delivery dates specified by Buyer.
2. A packing list must accompany each shipment and each box in the shipment
must be labeled, so as to provide information in accordance with Buyer's current packing
identification standards, including but not limited to: description of the material, quantity,
purchase order number, purchase order line number, Buyer part number and revision
level, and Seller manufacturing date or controlling lot number. In the case of international
shipments, label also must disclose 'Country of Manufacture'. Buyer's count shall be
accepted as final on all shipments not accompanied by a packing list.
3. No charge to Buyer will be made for packing, marking, or shipping unless
agreed upon in writing by Buyer at the time of purchase.
4. Damage to any material not packaged to ensure proper protection will be
charged to Seller or, at Buyer's option, the material will be returned at Seller's expense
for replacement.
5. Deliveries are F.O.B. destination unless otherwise specified in writing by Buyer.
When shipment is F.O.B. destination, title, and risk of loss and damage shall remain with
Seller until delivery to Buyer's place of business and Buyer shall not be required to serve
any claims against any carrier.
6. No partial shipments are allowed without Buyer's prior written approval.
7. Shipments must be made only per Buyer's written release, and Buyer reserves
the right to return, at Seller's expense and risk, materials not released or material
overshipped.
8. All tools, equipment or material of every description furnished to Seller by
Buyer or specifically paid for by Buyer shall be and remain the personal property of
Buyer. Such property shall be plainly marked by Seller as property of Buyer. Such
property, while in Seller's custody or control, shall be held at Seller's risk, shall be
kept insured by Seller at Seller's expense, in an amount equal to the replacement
cost with loss payable to Buyer, and shall be subject to removal at Buyer's written
request, in which event Seller shall promptly prepare for shipment (including, without
limitation, indicating such returned property on the delivery ticket or packing slip) and
shall redeliver such property to Buyer in the same condition as originally received by
Seller, except reasonable wear and tear.
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CONDITIONS OF ORDER
1. ACCEPTANCE; ENTIRE AGREEMENT:
The Order is Buyer's offer to buy and is not binding until accepted by Seller. By acceptance
of the Order, Seller agrees to all of the terms and conditions on the face of the purchase
order and in these Standard Terms and Conditions. Seller shall be deemed to have
accepted the Order upon the first of the following to occur: (a) Seller signs the
acknowledgment copy of the Order and returns the signed copy to Buyer; (b) Seller
notifies Buyer that Seller intends to commence performance of the Order; or (c) Seller
commences performance of the Order. The offer to purchase shall expire unless
accepted by Seller within 30 days of issue. Buyer may cancel the Order without any
liability or cost to Buyer at any time prior to acceptance. Subject to the "Changes"
paragraph below, the Order contains the complete and final agreement, and supersedes
any and all prior agreements, between Buyer and Seller regarding the goods subject to
the Order. No other agreement in any way modifying or amending any of the said terms
and conditions, including different, contradictory or additional terms and conditions, will be
binding upon Buyer unless made in writing and signed by Buyer's authorized
representative. Buyer shall not be bound by, and specifically objects to, any term,
condition or other provision which is different from or in addition to the provisions of the
Order, whether or not it would materially alter the Order.
2. CHANGES: Buyer may, at any time by written order,
change the quantities, design (including drawings, materials, and specifications), processing,
method of packing and shipping, and the time and place of delivery of the goods and
services provided in the Order; Seller shall not make any such changes without Buyer's
prior written approval. If any authorized change affects cost or timing, Buyer shall adjust
the purchase price and delivery schedules equitably. Seller shall use commercially
reasonable efforts to minimize any increase in cost or delay in delivery.
3. CANCELLATION:
Buyer may cancel the Order, in whole or in part, at any time, by a written notice to Seller.
Seller shall, upon request by Buyer, transfer title and deliver to Buyer such work in process
or completed goods as may be requested by Buyer. Buyer shall have no liability to Seller
beyond payment of any balance owing for goods purchased under the Order and delivered
to and accepted by Buyer prior to Seller's receipt of the notice of termination, and for the
reasonable cost of any work in process or completed goods so requested by and
delivered to Buyer; provided, however, that if Seller is not in default, Buyer shall, in
addition, pay to Seller such reasonable costs incurred by Seller pursuant to the Order,
prior to such cancellation, with respect to such work in process or completed goods not so
requested to be delivered by Buyer as shall be unrecoverable in the normal course of
business, excluding any and all costs related to any manufacture done in advance of a
normal flow time necessary to meet the purchase order schedule. Buyer shall have no
duty to reimburse Seller for costs incurred by Seller for materials, work in process or
completed goods that have not been ordered by Buyer.
4. PRICE AND PAYMENT:
Payment of the specified prices shall constitute full compensation for the goods and
satisfactory performance of all of Buyer's obligations under the Order. The specified prices
include and Seller shall pay all applicable taxes, insurance, customs, tariffs, and other
governmental charges and assessments. Seller shall issue a separate invoice for each
delivery, and shall not issue any invoice prior to the actual date of delivery. Due dates
for payment of invoices shall be computed from the date of receipt by Buyer. Payment is
due 45 days after the date on which Buyer receives the invoice or the date on which
delivery to Buyer is completed, whichever is later. Payment may be due earlier
than 45 days if an early payment discount is/was negotiated between the parties. Any
cash discount or net payment calculations will be made from the date Buyer receives the
goods or a correct invoice therefore, whichever is later, to the date Buyer's check is
mailed or payment is otherwise tendered. Seller shall promptly repay to Buyer any
amounts paid in excess of the amount due. Seller warrants that the prices that Seller
charges Buyer are not higher than the prices that Seller charges other customers for
similar quantities.
5. INFRINGEMENT:
Payment of the specified prices shall constitute full compensation for the goods and
satisfactory performance of all of Buyer's obligations under the Order. The specified
prices include and Seller shall pay all applicable taxes, insurance, customs, tariffs, and
other governmental charges and assessments. Seller shall issue a separate invoice for
each delivery, and shall not issue any invoice prior to the actual date of delivery. Due
dates for payment of invoices shall be computed from the date of receipt by Buyer.
Payment is due 45 days after the date on which Buyer receives the invoice or the date
on which delivery to Buyer is completed, whichever is later. Payment may be due earlier
than 45 days if an early payment discount is/was negotiated between the parties. Any
cash discount or net payment calculations will be made from the date Buyer receives the
goods or a correct invoice therefore, whichever is later, to the date Buyer's check is
mailed or payment is otherwise tendered. Seller shall promptly repay to Buyer any
amounts paid in excess of the amount due. Seller warrants that the prices that Seller
charges Buyer are not higher than the prices that Seller charges other customers for
similar quantities.
6. COMPLIANCE WITH LAW:
Seller represents that it has complied with and shall continue to comply with all
applicable foreign, federal, state and local laws, regulations, rules and ordinances
applicable to the sale of goods and services ordered by Buyer. Upon request, Seller
shall furnish Buyer a certificate to that effect. All materials used in manufacture
shall satisfy all governmental and safety requirements with respect to restricted, toxic
or hazardous materials, and all environmental, electrical and electromagnetic laws of
the country of manufacture and sale. If Seller is a United States entity, Seller will
comply with Federal laws, rules and regulations applicable to government contracts.
Seller will hold harmless and indemnify Buyer against any loss or damages, including
attorneys' fees and costs, resulting from Seller's violation of any laws, regulations, rules
or ordinances. Seller warrants that it has not offered or given and will not offer or give
any employee, agent, or representative of Buyer any gratuity that may appear to assist
Seller in obtaining any business from Buyer or influencing such person with respect to
the terms, conditions, or any performance of any contract with or order from Buyer.
a. Seller shall comply with the U.S.
Foreign Corrupt Practices Act which prohibits providing a payment of money or
anything of value to a foreign government official, public international organization
official, foreign political party, foreign political party official or candidates for such
offices, either directly or indirectly, for the purpose of influencing official acts and
decisions (including failures to act and decide) in order to assist in obtaining or
retaining business or directing business to any entity. Information regarding the Foreign
Corrupt Practices Act is available at www.usdoj.gov/criminal/fraud/fcpa.
b.Seller agrees to comply with all
foreign, federal, state and local laws regarding Imports and Exports, including any laws
of the United States regarding unsanctioned foreign boycotts, anti-boycott laws, and
embargoed countries. Information is available at:
www.ustreas.gov/ofac , www.bis.doc.gov/dpl/thedeniallist.asp ,
www.ftc.gov/oia/competition.shtm and www.bis.doc.gov/antiboycottcompliance/.
c.Seller shall conduct its business in a
manner that will reflect favorably at all times on Buyer, including the good name,
goodwill and reputation of Buyer. Further, Seller agrees to not conduct or to engage in
any activity that conflicts with the Warn Code of Business Conduct & Ethics, located
at: www.warn.com/corporate/code_of_conduct.shtml
7. GOVERNING LAW:
The Order shall be governed by Oregon law. Venue in any lawsuit arising out of any
Order shall lie exclusively in State and Federal courts in the State of Oregon of the United
States of America. Seller consents to the jurisdiction of the courts of the State
of Oregon.
8. ASSIGNMENT:
Seller shall neither assign (by contract, operation of law or otherwise) its rights or
interests under the Order, nor delegate or subcontract any of its duties, obligations or
performance under the Order without the prior written consent of Buyer. No assignment,
delegation or subcontracting by Seller, with or without Buyer's consent, shall relieve
Seller of any of its obligations under the Order.
9. CONFIDENTIALITY:
Seller shall keep confidential and neither disclose to any person outside its employ,
nor use for purposes other than performance of the Order, any information or property
pertaining to Buyer's products or the existence, terms or performance of the Order,
including but not limited to designs, drawings, specifications or any other information
that is a part of the Order or is provided by Buyer. Upon Buyer's request, or in any
event, upon the completion, cancellation or termination of the Order, Seller shall return
to Buyer all information or property delivered to Seller or generated by Seller pursuant
to the performance of the Order and, in either case, identified as confidential or
proprietary. Seller shall ensure that all subcontracts, purchase orders and other
agreements entered into by Seller or any of its subcontractors or suppliers of any
tier shall provide to Buyer and Buyer's confidential information the same rights and
protection with regard to such subcontractors or suppliers as are contained in this
paragraph with regard to Seller.
10. REMEDIES; SET-OFF:
Buyer's rights and remedies provided in the Order shall be cumulative and shall be
in addition to any other rights or remedies provided in law or equity. If Buyer breaches
the Order, Seller's exclusive remedy shall be recovery of the goods from Buyer. If
any provision of the Order is or becomes void or unenforceable by law, the remainder
shall be valid and enforceable. All claims for monies due or to become due from Buyer
shall be subject to deduction by Buyer for any set off or counterclaim arising out
of this or any other transaction between Buyer and Seller.
11. WAIVER:
The failure of either party to enforce at any time any provision of the Order shall not
be construed to be a waiver of such provision or the right thereafter to enforce such
provision. No prior waiver or course of dealing shall affect the right of either party to
require strict performance by the other with the terms of the Order.
12. DEFINITION OF "ORDER":
As used herein, the term "Order" means each purchase order issued by Warn
Industries, Inc., including the provisions on the face and reverse sides thereof and
in these Standard Terms and Conditions which are incorporated into each such
purchase order, and all warranties provided by Seller and all technical requirements
and specifications, drawings, designs and other provisions attached to, incorporated
into or otherwise made a part of such purchase order.
13. RIGHT OF ACCESS:
Buyer and its customers shall have the right to enter Seller's or subcontractor's
premises to view the documentation, tooling, equipment, materials, and processes
pertaining to goods to be made for Buyer, and to confirm their condition and compliance to
Buyer's specifications.
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QUALITY ASSURANCE, INSPECTION AND REJECTION
1. INSPECTION:
The acceptance of goods supplied by Seller pursuant to the Order is subject to
inspection and acceptance by Buyer after delivery. Defective goods or goods not in
accordance with Buyer's specifications may be held for Seller's instruction and at
Seller's risk and expense, and, if Seller so directs, will be returned at Seller's risk and
expense. No goods returned as defective shall be replaced by Seller unless specified by
Buyer. Payment for goods prior to inspection shall not constitute an acceptance of
such goods, nor will acceptance remove Seller's responsibility for any defects or
noncompliance with the Order. No acceptance of any goods shall be construed to
result from any inspections or tests or from any delay or any failure to inspect or test.
2. REJECTION:
Buyer may reject, refuse acceptance of or revoke acceptance of any goods or any
tender thereof which does not strictly comply with the requirements of the Order.
If Seller fails, refuses or indicates its inability or unwillingness to correct the
noncompliance, Buyer may, in addition to any and all other available rights and
remedies: (a) retain any or all of such goods for repair, replacement or other
correction by Buyer or others; (b) retain any or all of such goods without
correction; or (c) return any or all of such goods with or without direction for
correction by Seller. Buyer may recover from Seller, by price reduction, credit,
offset, reimbursement or otherwise, in addition to any and all other available
rights and remedies, any damages, costs and expenses incurred by Buyer due to
the noncompliance.
3. RECALLS:
If Seller recalls any goods sold to Buyer, or if Buyer recalls products due to a
problem with the quality of goods from Seller, Seller shall reimburse Buyer for the
costs and expenses incurred by Buyer in obtaining such goods and returning such
goods to Seller, including the costs and expenses incurred by Buyer in retrieving
goods from Buyer's customers, dealers, distributors, retailers, and end users.
4. WARRANTY:
Seller warrants (a) that all goods purchased are free from defects in design, material
and workmanship; (b) that Seller has good title to the goods and has conveyed such
good title to Buyer pursuant to the terms of the Order; (c) that the goods purchased
conform to the applicable specifications, designs, drawings, samples or other
descriptions furnished by Seller or specified by Buyer and to all other
requirements of the Order; (d) that all goods furnished delivered hereunder
will be merchantable and will be fit and sufficient for the purposes for
which intended; and (e) all materials, supplies, parts, components and equipment
incorporated in the goods shall be new and suitable for their intended purposes. These
warranties shall survive any inspection, delivery, acceptance, payment, expiration or
earlier termination of the Order and such warranties shall run to Buyer and its successors,
assigns and customers. Seller warrants that the articles supplied against Buyer's orders
shall comply with all requirements set forth in the current edition of the Warn Industries
Supplier Quality Manual, which is (1) included on Warn Industries' Web site at
www.warn.com and (2) incorporated in its entirety by this reference into these Standard
Terms and Conditions.
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November, 2008
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