TERMS AND CONDITIONS OF PURCHASE

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DORMA USA, Inc.

PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY. THERE IS IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT APPLY TO DORMA’S PURCHASE OF GOODS, SERVICES AND MATERIALS.

  

1. GENERAL

The following terms and conditions (the “Terms”) are incorporated by reference into all written DORMA USA, Inc. (“Buyer”) purchase orders as if expressly set forth therein. The Terms, together with such terms as are set forth in the purchase order, with such plans, specifications or other documents as are incorporated by reference, as amended in any subsequent authorized writing from Buyer, shall constitute the entire contract (the “Purchase Order”) between the Buyer and Seller. By accepting Buyer’s Purchase Order, you are indicating your acceptance of the following Terms. Buyer reserves the right to make changes to this website and these Terms at any time without specific notice to you of such changes, so please check the website periodically. Your acceptance of any Purchase Order after any such changes constitutes your acceptance of the new or modified Terms. These Terms apply exclusively to the purchase by Buyer of Products from you and the performance of services related thereto and do not alter in any way the terms or conditions of any other agreement you may have with Buyer.

  

2. ACCEPTANCE

Buyer recognizes that Seller may desire to utilize its own form of acknowledgment or acceptance of Buyer’s Purchase Order. However, the use of any such form shall be for convenience only. No modification of the Terms shall be effected by Seller’s acknowledgment or acceptance form, shipping instruction forms, bills of lading or any other document containing terms or conditions at variance with or in addition to the terms set forth herein or in the Purchase Order, all such varying or additional terms being hereby objected to and rejected by Buyer and deemed to be waived by Seller. If this Purchase Order is construed as an offer, this offer expressly limits acceptance to the terms of this offer and notice of objection to any different or additional terms in any response to this offer is hereby given. If this Purchase Order is construed as an acceptance of an offer, this acceptance is expressly conditioned upon the offeror’s assent to any different or additional terms contained or referenced in this Purchase Order. If this Purchase Order is construed as a confirmation of an existing contract, the parties agree that this confirmation states the exclusive terms of any contract between the parties. This Purchase Order shall be deemed to have been accepted by the Seller upon receipt by the Buyer of any writing, including a writing transmitted by fax or other means of electronic transmission, indicating acceptance, or by any of the following: (i) shipment of the Products or any portion thereof, (ii) commencement of any work on site, or (iii) performance of any services hereunder.

  

3. CONTRACT

The Purchase Order and these Terms shall constitute the final, complete and exclusive statement of the agreement between Buyer and Seller and may not be modified or rescinded except by a written change order issued by Buyer. Seller agrees that it is a “merchant” dealing in goods of the kind involved in the Purchase Order. Any changes, clarifications additions or waivers of a Purchase Order or these Terms must be in writing signed by Buyer to be effective. Neither the Purchase Order nor any of the rights or obligations under it may be delegated or assigned by Seller, in whole or in part, by operation of law or otherwise, without Buyer’s express written consent and any contrary action by Seller shall be void and without effect.

  

4. PRICE/TERMS

Seller warrants that the prices set forth in the Purchase Order are complete and that no additional charge of any type will be added without Buyer's prior express written consent, including but not limited to, charges for shipping, packaging, labeling, custom duties, taxes, storage, insurance, boxing and crating. Seller further warrants that the prices set forth in this Purchase Order are the lowest prices charged for the Products, or substantially similar products, sold by Seller to its other customers. If, after execution of this Purchase Order, but prior to payment by the Buyer for Products purchased hereunder, Seller (i) sells, or offers to sell, Products, or substantially similar products, to another customer at a lower price, (ii) offers a reduction in price to any customer already purchasing Products, or substantially similar products, or (iii) sells, or offers to sell, Products, or substantially similar Products, on commercial terms that are, in Buyer's reasonable judgment, more favorable than those set forth in this Purchase Order, such lower price or more favorable terms will be applicable to all purchases of Products by Buyer hereunder. If, at any time during the term of this Purchase Order, Buyer receives a bona fide offer from an unrelated third party to supply Products to Buyer on similar commercial terms, but at a lower price, Buyer may notify, and provide the necessary particulars of such offer to Seller, and Seller will, within thirty (30) days thereafter, inform Buyer whether it will match such price for Products purchased hereunder. If Seller does not agree to match such price, Buyer may, in its sole discretion, elect to purchase Products from such third party, and any obligation of Buyer to purchase Products from Seller pursuant to the terms of this Purchase Order will be deemed to be waived by Seller to the extent of any such purchases. Upon request of Buyer, Seller will be required to certify that it is in compliance with the requirements of this paragraph. Except as otherwise expressly set forth in the Purchase Order, Buyer will have no obligation to purchase any specific quantity of Products from Seller, and Buyer will be entitled, in its sole discretion, to purchase the same or similar Products from other suppliers. Buyer expressly reserves the right to disclose any of the terms of this Purchase Order, including but not limited to pricing, to third parties.

  

5. TERMINATION/CHANGES

Buyer may terminate this Purchase Order in whole or in part at any time for convenience upon giving written notice to Seller. Termination charges, if any, shall be subject to negotiation by the parties, but in no event shall exceed the lesser of either (a) the purchase price under this Order or (b) Seller’s actual costs, determined in accordance with generally accepted accounting principles, on the date termination notice is received by the Seller. All goods and materials for which Buyer pays termination charges shall be promptly delivered to Buyer. Nothing in this paragraph shall affect either Buyer’s or Seller’s rights in the event of cancellation due to breach by the other. Buyer shall have the right at any time to make changes, within the ability of Seller to perform, in this Order, in whole or in part, including but not limited to, changes in drawings, designs, specifications, materials, packaging, time and place of delivery, method of transportation, and nature and method of services provided or performed, upon giving Seller written notice.  If any such changes cause an increase or decrease in the cost, or the time required for performance, a mutually agreeable adjustment shall be made, and this Purchase Order shall be modified in writing accordingly. Seller agrees to accept any such changes subject to this paragraph.

  

6. TAXES

If Seller is required by law to collect sales and use tax (including any gross receipts tax imposed similar to a sales and use tax) from the Buyer on behalf of any taxing jurisdiction. Seller will provide to Buyer invoices which separately state and clearly indicate the amount of tax and Buyer will remit any such tax to Seller. Seller will have the responsibility of complying with all applicable foreign, national, state or local laws regarding value added tax and sales and use tax or substitutes therefore including registration, collection of taxes and the filing of returns where applicable. If applicable, in lieu of payment for any sales and use tax. Seller will accept a properly executed exemption or direct pay certificate from Buyer. The determination of whether an exemption or direct pay certificate will be submitted to Seller in lieu of payment for any sales and use tax will be made by Buyer. With the exception of sales and use tax as described above, all other taxes, however denominated or measured, imposed upon the Seller, or the price or compensation under this Purchase Order, or upon the Product provided hereunder, will be the responsibility and liability of Seller.

  

7. DELIVERY - TITLE

Time and quantity are of the essence. Delivery must be on the date indicated by Buyer. Buyer will have no liability for payment of Products delivered to Buyer which are in excess of quantities specified in the Purchase Order or in releases and Buyer may return over shipments to Seller at Seller's expense for all packing, handling, sorting and transportation charges. Buyer may, from time to time, change delivery schedules or direct temporary suspension of scheduled shipments. Buyer will be responsible for additional costs of expedited or other special transportation that Buyer may require as a result of changes to its firm releases or delivery schedules to the extent that (i) such changes were not caused by Seller, and (ii) Buyer can recover such costs from its own customers.

  

Unless the Purchase Order expressly states otherwise, all Products shall be shipped FCA the “Ship to” location designated in the Purchase Order. Risk of loss shall not pass to Buyer until Products called for in this Purchase Order actually have been received and accepted by the Buyer at the destination specified herein. Seller assumes full responsibility for packing, crating, marking, transportation and liability for loss and/or damage even if Buyer has agreed to pay freight, express or other transportation charges.

  

8. DELAYS IN DELIVERY OR PERFORMANCE

Seller will notify Buyer in advance of any actual or potential delays in meeting delivery or performance schedules. If, for any reason, Seller does not comply with Buyer’s delivery or performance schedule, Buyer may, at its option and without liability, terminate or cancel this Order and Purchase Order. In case of default by Seller, Buyer may obtain materials and services from other sources and hold Seller responsible for any damages occasioned thereby.

  

9. WARRANTY

Seller warrants that all Products will be (i) in strict conformance with all applicable specifications, drawings, instructions, data, samples, standards and regulations, (ii) merchantable, free from defects in design, material and workmanship, (iii) as described and advertised, of good quality, fit for the intended purposes, (iv) composed of all new components, (v) free from all liens, encumbrances and any actual or claimed patent, copyright or trademark infringement, and (vi) manufactured in compliance with all applicable federal, state and local laws, regulations or orders, and agency or association standards or other standards applicable to the manufacture, labeling, transporting, licensing, approval or certification of the Products. These warranties are in addition to all other warranties, express, implied or statutory, which may be applicable.  Buyer’s approval of Seller’s design, material, process, drawing, specifications or the like will not be construed to relieve Seller of the warranties set forth herein.  Limitations on Buyer’s remedies (or disclaimers of warranties) in documents of Seller, or otherwise, will not be effective and are hereby objected to and rejected. All warranties and other provisions of this paragraph will survive inspection or acceptance of, payment for, and use of the Products and completion, termination, or cancellation of this Purchase Order, and will run to Buyer, its customers, successors, and assigns, and to users of the Products. This Purchase Order incorporates by reference, and will be governed by, the Uniform Commercial Code, latest revision, as enacted by the Commonwealth of Pennsylvania, including all warranty protections (express or implied) and all buyer remedies set forth therein.

  

10. LIABILITY AND INDEMNIFICATIONS

Seller will indemnify, protect, defend or settle (at Seller’s expense), and hold harmless from and against all liabilities or damages arising out of or in any manner connected with personal injury, including death, or property loss or damage, or any other loss or damage, to Buyer and Buyer’s affiliates, employees, contractors, agents, customers and end users (“Indemnitees”) arising out of or in any manner connected with (i) the production and delivery of, or any defect in Products supplied hereunder; (ii) any act or omission of Seller, and/or (iii) breach of any representation, warranty or covenant, whether caused by Seller, or a supplier of Seller, or employees or invitees of either of them, and in each case whether or not caused or contributed to by the fault or negligence of any of the Indemnitees. For the avoidance of doubt, Seller expressly agrees that Seller will indemnify, defend and hold harmless the Indemnitees in connection with this Section 10 even if any or all of the liabilities or damages incurred by any or all of the Indemnitees are caused in part by the concurrent negligence of one or more of the Indemnitees. Seller waives the application of the doctrine of comparative negligence and other doctrines that may otherwise allocate the liability covered by Seller's indemnity provided that nothing contained herein shall obligate Seller to indemnify Indemnitees from any claim which arises from the sole negligence of the Indemnitees. Seller, for itself, its successors, assigns and subcontractors hereby expressly agrees to waive any provision of any workers' compensation act or other similar law whereby Seller could preclude its joinder by Buyer as an additional defendant, or avoid liability for damages, contribution or indemnity in any action at law, or otherwise where Seller's or its subcontractor's employee or employees, heirs, assigns or anyone otherwise entitled to receive damages by reason of injury or death brings an action at law against any Indemnitee, Seller's obligation to Buyer herein will not be limited by any limitation on the amount or type of damages, benefits or compensation payable by or for Seller under any workers' compensation acts, disability benefit acts, or other employee benefit acts on account of claims against Buyer by an employee of Seller or anyone employed directly or indirectly by Seller or anyone for whose acts Seller may be liable. In particular, but without altering or in any way limiting the general application of the waiver set forth in the previous sentence.

  

11. INFRINGEMENT

Except for performances pursuant to Buyer’s specifications, Seller warrants that the sale, resale and use of the Products will not infringe any United States or foreign patent, copyright, or trademark, or proprietary rights of another person; and Seller agrees to defend, protect, indemnify and hold harmless Buyer, its successors, assigns, employees, officers, directors, customers and users of its Products against all suits at law or in equity, and from all loss, liability, damages, claims and demands, including costs and expenses, for the actual or alleged unfair competition resulting from similarity in design, trademark or appearance of goods or services by reason of the sale, resale or use of such Products. Buyer may be represented by and actively participate through its own counsel in any such suit or proceedings if it so desires.

  

12. SELLER'S FINANCIAL CONDITION

If, in Buyer’s opinion, Seller’s financial condition is found to be or becomes unsatisfactory to Buyer and Buyer thereby deems itself insecure. Buyer may terminate this order and also terminate all other contracts covering purchases by Buyer of Seller’s product, goods or services whether or not Seller may otherwise be in default under such contracts, and no rights shall thereby accrue to Seller against Buyer.

  

13. REMEDIES

The remedies contained herein shall be cumulative and in addition to any other legal or equitable remedies available to Buyer. No waiver by Buyer of any breach of any provision of this Order shall constitute a waiver of any other breach of such provision or of any other provision or right. No failure or delay by Buyer to exercise any right, power, or privilege hereunder shall operate as a waiver thereof.

  

14. INSPECTION

All Products shall be subject to inspection and testing by Buyer, at no additional cost, at all reasonable times and places, including inspection and testing after arrival at destination, and, when practicable, during manufacture. In case any Products are found to be defective in material or workmanship or otherwise not in conformity with the Purchase Order, Buyer has the right to reject such Products or require their correction. Seller shall bear all risks as to rejected goods after notice of rejection.

  

15. RESTRICTIVE DATA

The use of Buyer’s drawings, specifications or information by Seller in the performance of the Purchase Order is expressly restricted to Seller’s manufacture of the Products.  Any other use or disclosure of this proprietary information of Buyer is prohibited.  Buyer retains all rights in designs, drawings, specifications and other data or papers furnished to Seller in connection with the Purchase Order. Upon completion of the work, Seller shall promptly return to Buyer all designs, drawings, specifications, and other data or papers furnished by Buyer together with all copies or reprints then in Seller’s possession or control.

  

16. GOVERNING LAW - VENUE

The Purchase Order is governed by the laws of the Commonwealth of Pennsylvania, excluding its laws related to choice or conflicts of law. The United Nations Convention on contracts for the International Sale of Goods is expressly disclaimed and does not apply.  All disputes between Seller and Buyer arising from the Purchase Order shall be resolved in any state court located in Lancaster County, Pennsylvania or federal court located in the Eastern District of Pennsylvania. Seller agrees that service of process may be made by mailing a copy of the summons and complaint to Seller at its address set forth in Buyer’s records.

  

17. CONFIDENTIALITY

At all times, Seller will (i) maintain the confidentiality of any information disclosed by Buyer or any of its parents, subsidiaries, affiliates, customers, and contractors, whether or not identified as “confidential” upon disclosure (“Confidential Information”); (ii) not disclose or permit the disclosure of any Confidential Information to any person other than its employees for whom such knowledge is essential for performance of the Purchase Order; and (iii) not use Confidential Information except for performance of the Purchase Order. Seller will immediately notify Buyer of any disclosure of any Confidential Information that is not permitted by this Purchase Order and will be responsible for the disclosure or other misuse of Confidential Information. Buyer makes no representation or warranty of any kind, express or implied, with respect to any Confidential Information. Buyer may, at its sole discretion, elect at any time, by written notice to Seller, terminate Seller’s further use of Confidential Information and Seller shall immediately return to Buyer all Confidential Information and copies thereof and erase any digitally held Confidential Information. Termination by Buyer will not affect Seller’s continuing obligations in this Section 17.

  

18. SURVIVABILITY OF OBLIGATION

All of the obligations, rights, indemnifications and remedies created by the provisions of the Purchase Order shall survive the cancellation, termination or the completion of the Purchase Order.

  

19. NO VIOLATION OF LAW

Seller and the Products will comply with all applicable laws, rules, regulations, orders, conventions, ordinances or standards of the country(ies) of destination or that relate to the manufacture, labeling, transportation, importation, exportation, licensing, approval or certification of the Products, including, but not limited to those relating to environmental matters, data protection and privacy, wages, hours, and conditions of employment, subcontractor selection, discrimination, occupational health/safety and motor vehicle safety. Seller specifically represents that all Products sold hereunder will have been manufactured in compliance with all terms, rules and regulations issued under the Fair Labor Standards Act of 1938, as amended, and specifically including all applicable requirements of Section 6, 7, and 12 of the Fair Labor Standards Act, as amended and all regulations and orders of the United States Department of Labor issued under Section 14 thereof.

  

Upon request, Seller will furnish Buyer with certificates of compliance therewith. Unless the Purchase Order is otherwise exempted by law, Seller will comply with Executive Order 11246, as amended by Executive Order 11375 (Equal Employment Opportunity) the Rehabilitation Action of 1973, the Vietnam Era Veteran's Readjustment Assistance Act of 1974 and the Americans with Disabilities Act, as they have been or may be amended from time to time, and regulations implementing such statutes; and any similar state and local laws and ordinances and the regulations implementing such statutes. If requested by Buyer, Seller will furnish to Buyer an executed Certificate of Nonsegregated Facilities. Seller warrants that the Products delivered hereunder were produced at facilities complying with all applicable provisions of the Occupational Safety and Health Act and applicable regulations under that Act and agrees to, upon request, provide Buyer with all explanatory and factual information needed to verify such compliance and to enable Buyer to comply therewith, and with any other laws and regulations applicable hereto. Seller further warrants that it will comply, where applicable, and without limitation, with all orders, standards, and regulations of the National Highway & Transportation Safety Administration, Federal Aviation Administration, Environmental Protection Administration, Food and Drug Administration, Consumer Product Commission, and Occupational Safety & Health Act Administration, This contractor and subcontractor shall abide by the requirements of 41 CFR §§ 60-1,4{a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all Individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability.

  

20. MISCELLANEOUS

a. The waiver by either party of any provision herein or any breach thereof shall not constitute a waiver of any subsequent breach thereof, nor of any other provision, or multiply the effectiveness of such provision.

  

b. The validity or unenforceability of any provision in the Agreement shall not affect the validity or unenforceability of the other provisions, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision was omitted.

  

c. Seller shall notify Buyer immediately upon any change in ownership of more than fifty percent (50%) of Seller’s voting rights or of any controlling interest in Seller. If Seller fails to do so or Buyer objects to the change, Buyer may (a) terminate the Purchase Order, (b) require Seller to provide adequate assurance of performance (including but not limited to payment), and/or (c) put in place special controls regarding Buyer’s Confidential Information.

  

d. Neither party will be in default for any delay or failure to perform its obligations under the Purchase Order if caused by an extraordinary event beyond its reasonable control without its fault or negligence; provided that any delay or failure to perform caused by default of a supplier of Seller at any lower tier must be beyond the reasonable control of both Seller and such supplier without the fault or negligence of either and items to be furnished must not be obtainable from other sources in sufficient time to permit Seller to meet the delivery schedule, and provide further that Seller furnished prompt written notice of any delays or non-performances (including its anticipated duration) after becoming aware that it has occurred or will occur. If Seller is unable to perform for any reason, Buyer may purchase the Products from other sources and reduce its purchases from Seller accordingly without liability to Seller.  Within three business days after written request by the other party, the non-performing party will provide adequate assurances that the non-performance will not exceed 30 days. If the non-performing party does not provide those assurances, or if the non-performance exceeds 30 days, the other party may terminate the Purchase Order by notice given to the non-performing party before performance resumes.

  

e. Seller agrees to immediately notify Buyer of any actual or possible safety problems with the Products delivered hereunder. Seller also agrees to give Buyer reasonable advance notice of potential material shortages, insolvency or other matters that might delay or interfere with its performance of the Purchase Order.

  

Last Updated:  March 30, 2015

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