General Terms and Conditions of Purchase
SCOPE OF TERMS. These General Terms and Conditions of Purchase (“Terms”) shall govern and be incorporated into to all orders (“Orders”) of products, goods, materials, or other items ("Products") and any and all services ("Services") by Mannington Mills, Inc. and its business divisions, subsidiaries, affiliates and successors and assigns, as applicable (“Buyer”) from supplier and/or service providers and their subsidiaries, affiliates and successors and assigns, as applicable (“Supplier”). The acceptance of any Order or the commencement of any work or the performance of any Services hereunder shall constitute unconditional and unqualified acceptance by the Supplier of the Order and the Terms as part of the contract between the parties. Any and all terms and conditions of the Supplier, whether contained in a quotation or otherwise, shall not apply, even if the Buyer did not expressly oppose them.
ORDERS. Supplier’s acceptance of an Order shall be made through a written order acknowledgement of receipt which shall not contain any reservations or modifications of the Terms or begins performing, whichever is earlier. Before Buyer’s receipt such acknowledgment, Buyer may cancel any Order by written notification to the Supplier, with immediate effect, at any moment, without any particular formality and without any liability on the part of the Buyer. Any reference to Supplier’s quotation, bid, or proposal does not imply acceptance of any term, condition, or instruction contained in that document.
DELIVERY. Deadlines for delivery of Products or performance of Services shall be set forth by the Buyer in the Order. Unless otherwise agreed between the Parties, Supplier will deliver Goods in the quantities and on the date(s) specified on the Order. The Supplier shall immediately inform the Buyer when Supplier has knowledge of any real or potential delay in delivery. If delivery dates are not stated, Supplier will offer its best delivery or performance date(s), which will be subject to acceptance or rejection by Buyer. TIME IS OF THE ESSENCE. In case the Supplier does not meet the delivery ore performance deadlines, it shall indemnify the Buyer against all and any additional expenses, losses, costs, damages or other consequences resulting therefrom, include, but not limited to, the purchase price for the Products or Services ordered from another supplier or for the Services performed by another supplier.
TITLE AND RISK OF LOSS. Unless provided on the face of the Order or otherwise agreed to by the parties, all risk of loss shall remain with the Supplier until possession, ownership and full legal title to the Products are transferred to and accepted by Buyer at Buyer’s designated destination; except that if Buyer rightfully rejects the Products, receives a nonconforming tender, or revokes its acceptance, the risk of loss and title shall be deemed to have remained with Supplier.
PRICING. Supplier will furnish the Products and the Services at the prices and rates stated on the face of the Order which shall be considered as firm and non-reviewable. If prices or rates are not so stated, Supplier will offer its lowest prices and rates subject to Buyer’s written acceptance. No price increase shall apply without Buyer’s prior written. Unless otherwise provided on the face of the Order, the prices include all packaging and freight to the specified delivery point; applicable taxes and other government charges including, but not limited to, all sales, use, or excise taxes; and all customs duties, fees, or charges. To the extent that value added tax (or any equivalent tax) is properly chargeable on the supply to Buyer of any Products or Services, Buyer will pay the tax as an addition to payments otherwise due Supplier under the Order and these Terms, provided that Supplier provides Buyer with a value-added tax (or equivalent tax) invoice.
INVOICES. After each Product shipment made or Service provided, Supplier will submit to the address indicated on the Order an invoice containing the associated Order number and listing a description of the Products or Services provided and, as applicable, quantity, unit of measure, hours, and the unit and total prices. This invoice must match the corresponding Order pricing, quantities, and terms, and must be sent to the invoice address listed on the Order. The invoice will be accompanied (if applicable) by a signed bill of lading or express receipt evidencing shipment.
PAYMENT. Payment of an invoice does not constitute acceptance of the Products or Services and is subject to appropriate adjustment should Supplier fail to meet the requirements of the Order. Payment terms are net 60 days from receipt of a Buyer-approved compliant invoice unless otherwise stated on the face of the Order or other written agreement executed by both parties; provided, however, that in the event that applicable law requires a payment terms period of shorter duration, payment terms shall be the maximum period allowed by applicable law. Invoices will not be approved unless they accurately reference conforming Products received by Buyer or Services satisfactorily performed for Buyer.
PAYMENT DELAY/SET OFF. Buyer has the right to delay payment to Supplier, without loss of any discount, and without breaching these Terms, in the event Buyer has reason to believe Supplier has breached or that an event exists that may give rise to a breach of these Term by Supplier. Such remedy shall not constitute any waiver of Buyer’s additional rights or remedies against Supplier in such case. Buyer may deduct any amount owing from Supplier to Buyer as a set off against any amount owing to Supplier under these Terms or any Order.
WARRANTY. (a) Supplier warrants to Buyer, that all Products furnished (including all replacement or corrected Products or components) will (i) be free from defects in material, workmanship, and design, even if the design has been approved by Buyer, (ii) conform to applicable drawings, designs, quality control plans, specifications and samples and other descriptions furnished or specified by Buyer, (iii) be merchantable, (iv) be fit for the intended purposes and operate as intended, (v) comply with all laws, (vi) be free and clear of any and all liens or other encumbrances, and (vii) not infringe any patent, published patent application, or other intellectual property rights of any third party and not utilize misappropriated third party trade secret information.
(b) As to Services, in addition to any express or implied warranties, Supplier warrants that (a) it possesses the requisite expertise, facilities and equipment necessary and appropriate to perform the services, (b) the services will be performed in a safe and workmanlike manner, and (c) the Services will be performed in accordance with the highest standards in the industryINDEMNIFICATION. Supplier will, at its expense, defend, hold harmless and indemnify Buyer and its customers, subsidiaries, affiliates, and agents, and their respective officers, directors, shareholders, and employees, (collectively "Indemnitees") from and against any and all loss, cost, damage, claim, demand, or liability, including reasonable attorney and professional fees and costs, and the cost of settlement, compromise, judgment, or verdict incurred by or demanded from the Indemnitee (“Loss”) arising out of, resulting from or occurring in connection with (a) Supplier’s Products or the performance of the Services by Supplier or its personnel (including any employment-related Loss arising out of, resulting from or occurring in connection with the performance), (b) the acts, omissions, negligence or willful misconduct of Supplier or its personnel, (c) Supplier’s breach of the terms of these Terms, (d) any patent, copyright, or trademark infringement; (e) any unlawful disclosure, use, or misappropriation of a trade secret; or (f) violation of any other third-party intellectual property right, and from expenses incurred by Indemnitee in defense of such suit, claim, or proceeding if Supplier does not undertake the defense thereof. Supplier will not enter into any settlement or compromise without Buyer’s prior written consent, which will not be unreasonably withheld. If Buyer is obligated to pay any Loss or any damages pursuant to its contract with a customer, then Supplier will be liable for such Loss any damages to the extent Supplier causes or contributes to such Loss or any damages. Nothing in this Section limits Buyer’s right to claim all actual damages sustained by Buyer as a result of Supplier-caused delays.
PRODUCT INFORMATION AND TECHNICAL ASSISTANCE. Supplier may furnish Buyer with technical advice or assistance, without compensation, with regard to the use of any Product. Supplier assumes no obligation or liability with respect to such advice or assistance. All statements, technical information and recommendations concerning the Products furnished by Supplier hereunder are for description only, are based upon tests believed to be reliable, but do not constitute a guarantee or warranty.
RELATIONSHIP OF THE PARTIES. Buyer and Supplier are independent entities, and nothing in these Terms shall be construed to create a partnership, joint venture, agency or employer-employee relationship between the parties.
CONTRIBUTED WORK. In the event that Buyer or Supplier contributes any drawings, tracings, patterns, samples, and the like related to the Products (“Work”) contributed by Buyer or Supplier and any deliverables that are the result therefrom, Supplier expressly acknowledges that (i) Buyer shall be the sole and exclusive owner of the Work, (ii) Supplier hereby irrevocably transfers and assigns to Buyer all right, title and interest therein, including all copyrights, in any Work provided by Supplier hereunder and (iii) any deliverables resulting from the Work are deemed works for hire and are the sole and exclusive property of Buyer. For any deliverable that is found not to be a work for hire, Supplier hereby assigns all such deliverables to Buyer.
EXCUSED PERFORMANCE/FORCE MAJEURE. Neither party shall be liable for delay in performance or failure of performance hereunder (except for the payment of money) due to fires, floods, other acts of God, accidents, explosions, equipment or machinery breakdown; sabotage, lock outs, strikes or other labor disturbances (regardless of reasonableness of the demands of labor), riots, invasions, terrorism, wars, requisitions, regulations or directions of government, voluntary or mandatory compliance with any request of any governmental authority; plague, epidemic, pandemic, outbreaks of infectious disease or any other public health crisis, including quarantine or other employee restrictions, shortages of, or inability to obtain at reasonable costs, labor, fuel, power, supplies, feedstock or raw materials, inability to obtain or delays of transportation facilities, or any other cause (whether similar or dissimilar to the foregoing) beyond the reasonable control of the party relying upon this Paragraph (each a “Force Majeure Event”). If a Force Majeure Event occurs that affects delivery of Products to Buyer, Supplier will allocate its available supply of Products in a manner that assures Buyer of at least the same proportion of Supplier’s total output of Products as was allocated to Buyer before the Force Majeure Event. If delivery of any Products is delayed for more than 30 days, Buyer may, without liability, cancel all or any part of the affected Order.
CHANGES/CANCELLATION OF ORDER. Buyer shall have the right prior to shipment of the Product to make changes to or cancel an Order or any portion thereof in accordance with these Terms. No additional charges, fees or penalties shall be allowed unless Buyer agrees to such charges, fees or penalties in writing. Upon cancellation, Supplier shall immediately discontinue performance. In the event of termination of an Order, Buyer shall not be liable to Supplier for any amount and Supplier shall be liable to Buyer for any amounts as provided for in these Terms.
DISCONTINUED PRODUCTS. Supplier shall provide Buyer with at least one hundred and twenty (120) days’ written notice of discontinuance of the manufacture of any Products sold to Buyer hereunder.
CHOICE OF LAW AND VENUE. The Terms shall be construed and enforced under the laws of the State of New Jersey, irrespective of any contrary conflicts of law principles. Supplier agrees to submit to the jurisdiction of the state and federal courts located in the State of New Jersey with regard to any action arising out of the Terms.
COMPLIANCE WITH LAWS. (a) Supplier shall comply with all local, State and Federal laws and regulations affecting the price, production, sale or delivery of the material under these Terms, or services performed in connection therewith, and Buyer shall defend and indemnify Supplier from and against any liability, expense or loss resulting from Buyer’s failure to do so. In particular: (i) To the extent applicable, Buyer agrees to comply with all applicable laws, regulations, rules and orders of federal, state, and municipal governmental bodies or agencies specifically including, but not limited to the following: Clean Air Act; Clean Water Act; Emergency Planning and Community Right-to-Know Act; Resource Conservation and Recovery Act; Toxic Substances Control Act (“TSCA”) (and further, in connection with TSCA, Buyer certifies that all chemical substances (including substances which Buyer does not make or import) contained in, or constituting, the materials sold under these Terms are, at the time of sale and Buyer’s receipt, listed as “active” on the then-current TSCA Chemical Substances Inventory, or otherwise correctly listed pursuant to TSCA, or are exempt from such listing, and Buyer further agrees to inform Supplier as to any TSCA restriction governing the materials under these Terms, including, but not limited to, any proposed or final significant new use restriction); Federal hazardous materials transportation laws; The Occupational Safety and Health Act of 1970, as amended; the Equal Opportunity Clauses prescribed in Executive Order 11246, as amended by Executive Order 13672, as implemented in 41 CFR Part 60-1-4 et seq.; the affirmative action clause prescribed by the Vietnam Era Veterans Readjustment Assistance Act of 1974, as amended and set forth in 41 CFR Part 60-300, et seq. and the affirmative action clause prescribed by Section 503 of the Rehabilitation Act of 1973, as amended and set forth in 41 CFR Part 60-741 et seq. and the Uyghur Forced Labor Prevention Act (“UFLPA”). Supplier further represents and warrants that none of the Products, nor any raw materials, components or inputs incorporated therein, in any amounts, that Supplier provides to Buyer were mined, produced, manufactured or sourced, wholly or in part from, the Xinjiang Uyghur Autonomous Region ("XUAR") of China, or by certain entities affiliated with the XUAR including but not limited to those listed on the UFLPA Entity List and neither convict labor, forced labor or illegally indentured labor, nor illegal child labor was employed in the manufacture of the Products, and that the Products were manufactured in compliance with all other applicable labor and workplace safety laws and regulations.
(b) To the extent applicable, Supplier further shall also abide by the requirements of 41 CFR 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified protected veterans and qualified individuals on the basis of disability and require affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans and qualified individuals with disabilities. The provisions of the foregoing laws, regulations, rules and orders are incorporated herein by reference and prohibit discrimination on the basis of and without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability, veteran status or other characteristics protected by law. Supplier agrees to defend and hold Buyer harmless from any loss or damage arising out of any violation of the foregoing; (ii) Supplier warrants that all material delivered hereunder and all work performed and activities undertaken on Buyer’s premises, including the equipment used therefor, shall comply with applicable occupational safety and health standards promulgated under the Occupational Safety and Health Act of 1970, as amended, and regulations adopted thereunder; (iii) in accepting this Order, Supplier assumes responsibility for testing, process control, labeling and other requirements of the U.S. Consumer Product Safety Commission and/or other regulatory agencies or laws, and is responsible for reporting product hazards in accordance with Section 15 of The Consumer Product Safety Act, Public Law 92-573; and (iv) to the extent the Products covered by these Terms or an Order are “interior furnishings,” “fabrics,” or “related materials” covered by the Federal Flammable Fabrics Act, or similar state laws, unless the goods are exempted from the provision of said laws, Supplier guarantees that reasonable and representative tests made according to procedures prescribed in Section 4 of the Flammable Fabrics Act, and the Products are not considered highly flammable as to be dangerous.IMPORT/CUSTOMS COMPLIANCE. Supplier assumes all responsibility and liability for any shipments covered by any Orders requiring any government import clearance. If government authorities declare or otherwise impose countervailing duties, antidumping duties, or retaliatory duties on the Goods imported under any Order, Buyer reserves the right to terminate this such Order. Supplier will be debited for any duties, fees, or freight incurred by Buyer due to Supplier’s failure to comply with these Terms.
CONFIDENTIALITY. Both parties acknowledge that, by reason of their relationship, they may have access to and/or disclose certain information, which is confidential and proprietary, whether disclosed in writing, verbally or by its nature the receiving party knows or should know the confidential nature of the information (“Confidential Information”). Each party shall not, without the prior written consent of the other party, disclose or permit to be disclosed Confidential Information to anyone other than such party’s directors, officers, employees, agents, lenders and/or other financial institutions who have a legitimate need to know the Confidential Information, except to the extent required by law, regulations or administrative process to which such party or any of its affiliates are subject, and except for information which is available to the public as of the date hereof, or thereafter becomes available to the public other than as a result of a breach of this paragraph or obtained from another source not subject to a confidentiality obligation.
ENTIRE AGREEMENT. In the event that a separate written purchase agreement is executed by Buyer and Supplier, such agreement shall supersede to the extent of any conflict with or additions to these Terms. Absent such a written supply agreement, these Terms, along with the provisions contained within the Orders, constitute the final, entire and exclusive agreement between Buyer and Supplier concerning the purchase of Products or Services from Supplier by Buyer, and supersede all prior oral and written agreements and understandings (whether express or implied, including those implied by law, through usage of trade, course of performance or course of dealing). Any terms in Supplier’s invoice, remittance communication, or any other document which conflict with or are in addition to these Terms are hereby rejected (even if such invoice or other document is accepted by Buyer) and shall be void and of no effect. These Terms may not be waived or modified unless done so in a writing and signed by authorized representatives of both Buyer and Supplier.
MISCELLANEOUS. (a) Nothing contained herein, nor any course of conduct or series of sales or transactions shall imply or be construed to impose any additional obligations on Buyer or Supplier. Failure of either party to require performance of any provision of the Terms shall not affect either party’s right to require full performance thereof at any time thereafter, and the waiver by either party of a breach of any provision hereof shall not constitute a waiver of a similar breach in the future or of any other breach or nullify the effectiveness of such provision.
(b) Supplier shall not assign or transfer these Terms or any Order without Buyer’s prior written consent. Any assignment or attempt to assign these Terms or any Order, in whole or in part, by operation of law or otherwise, without Buyer’s prior written consent shall be null and void. Buyer shall have the right to assign or transfer all or any part of these Terms to another at any time and without Supplier’s prior consent.
(c) The parties recognize and agree that neither shall be obligated by their course of conduct to perform any future transactions hereunder unless otherwise expressly provided in a writing executed by authorized representatives of both parties.
(d) No waiver by Supplier of any of the provisions of these Terms is effective unless explicitly set forth in writing that specifically references these Terms and is signed by Buyer. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The paragraph headings contained in these Terms are for convenience only and will not affect the interpretation of any provision. If any provision of these Terms is held to be prohibited or unenforceable, the remaining provisions will continue in full force and effect.
(e) Notwithstanding that these Terms may pertain to purchases by more than one Buyer, each Buyer shall be responsible only for its own performance thereunder, and no joint and several liability or performance obligation on the part of any other Buyer shall be expressly or impliedly created.
(f) all notices and other communications which are required or may be given by Buyer or Supplier pursuant to these Terms shall be delivered in writing unless otherwise specified.