DAKOTA FENCE COMPANY, 3D SPECIALTIES, INC., DAKOTA PLAYGROUND AND DFC COMPANY PURCHASE ORDER TERMS AND CONDITIONS (“TERMS AND CONDITIONS”)
- 1. ACCEPTANCE.
- Dakota Fence Company, 3D Specialties, Inc., Dakota Playground, DFC Company and/or any of its or their respective parent and/or subsidiary companies (“Buyer”) is purchasing from the entity or individual to whom the Buyer Purchase Order (the “Purchase Order”) is issued (the “Seller”) the goods, supplies or materials described in the Purchase Order (“Goods”) upon the terms and conditions stated herein and in the Purchase Order (these “Terms and Conditions”), and will become a binding contract upon acceptance either by Seller’s acknowledgement or performance in whole or in part. No additional or different terms contained in any Seller invoice, quote, proposal, sales order or other document required or provided by Seller will be binding on Buyer and Buyer rejects such additional or different terms.
- 2. DELIVERY.
- Time is of the essence. Seller shall ship all Goods in order to meet the required delivery schedule stated or referred to in the Purchase Order. Seller shall send no deliveries COD or by Shipper’s Order. Seller shall notify Buyer promptly of any delays or threatened delays in delivery. Regardless of such notice, Seller is responsible for all Buyer costs and damages resulting from any delay of delivery of any Goods, provided Buyer makes reasonable efforts to mitigate such costs. If delivery is not made on or before the specified date, Buyer may, without liability and in addition to its other rights: (i) terminate or reschedule this Purchase Order by notice to Seller effective upon receipt as to Goods not yet shipped and/or services not yet rendered; (ii) accept a revised delivery schedule with any late shipments provided via the fastest means available, shipped prepaid at Seller’s sole expense and/or (iii) purchase substitute Goods elsewhere and charge Seller for costs incurred for all or part of the price for substitute Goods (including any costs to expedite manufacture or delivery).
- 3. RISK OF LOSS.
- Unless otherwise provided on the Purchase Order, all sales are DDP to the site identified on the Purchase Order (Incoterms 2010). Title and risk of loss will transfer to Buyer from Seller upon receipt by Buyer at the location identified in the Purchase Order. Seller will not retain any security interest in goods shipped to Buyer.
- 4. WARRANTY.
- Unless a longer period is included in the Purchase Order, or Seller provides a longer period in Seller’s descriptions or standard specifications of the Goods, Seller warrants the Goods for (i) 12 months from the date of first use or (ii) 18 months from delivery, whichever is later and not to exceed 24 months from the date of delivery, to be new; free from defects in materials and workmanship; in conformance with the terms of the Purchase Order and any specifications drawings, samples, or other seller-provided descriptions of the Goods or, if no seller description or specification was referenced, to standard commercial specifications for such Goods; and free from any liens and encumbrances. The establishment of the warranty period herein relates only to Seller’s obligation to repair or replace Goods and does not limit any other of Buyer’s legal rights or remedies.
- 5. INSPECTION / REJECTION
- Buyer may inspect and test finished Goods, as well as components and materials, at the place of manufacture, storage and/or destination. Such inspections will be permitted without prior notice during normal business hours. If any Goods are found at any time before, during, or after delivery to be defective in material or workmanship or damaged due to unsatisfactory packaging, or otherwise in breach of warranty, Buyer may (i) reject and/or return such Goods at Seller’s expense and receive full credit for same; (ii) require replacement or repair of the Goods without additional cost to Buyer; (iii) retain and use the Goods with an equitable adjustment in purchase price; (iv) repair the Goods at Seller’s expense; and (v) recover all loss, damage and expense resulting from the rejection and/or replacement of any Goods. Such rights are in addition to any rights Buyer might otherwise have. Buyer’s inspection (if any), acceptance, or rejection of Goods will not relieve Seller of any obligations herein. Buyer retains all rights and remedies available at law and in equity. Such remedies are cumulative and may be exercised concurrently or separately by Buyer. Seller will be responsible for all costs and expenses in connection with any product recalls.
- 6. PRICE / PAYMENTS.
- Buyer shall pay Seller the price stated in the Purchase Order. Seller shall send invoices for the Goods referenced in the Purchase Order to the address listed on the front of the Purchase Order or electronically to the email address listed on the front of the Purchase Order. Seller shall include with such invoices all documentation necessary to support the amount requested, as reasonably determined by Buyer. Seller will, at Buyer’s request, break-out from the price all individual charges, in its invoices. Payment will be in U.S. Dollars. Buyer may, at any time, set-off any amounts Buyer asserts Seller owes Buyer against any amounts Buyer owes to Seller or any of its affiliated companies. Payments do not constitute acceptance of improper, faulty, defective or non-conforming Goods, do not release Seller of any of its obligations under the Purchase Order or these Terms and Conditions and do not constitute a waiver of any rights or provisions hereof by Buyer. Buyer shall pay Seller within 60 days of (i) receipt of the Goods at the delivery location identified on the Purchase Order and (ii) receipt of a complete and accurate invoice for such delivered Goods, whichever is later. Buyer shall be entitled to a 2% discount on the invoiced amount for such Goods if Buyer pays Seller the full amount of such invoice within 10 days of the applicable date in the preceding sentence. Buyer shall be entitled to a 1.5% discount on the invoiced amount for such Goods if Buyer pays Seller the full amount of such invoice within 15 days of the applicable date in the preceding sentence. Buyer shall be entitled to a 1% discount on the invoiced amount for such Goods if Buyer pays Seller the full amount of such invoice within 20 days of the applicable date in the preceding sentence. Buyer may pay Seller by credit card or other electronic means without additional expense to Buyer.
- 7. SELLER BREACH.
- In the event of a Seller breach including, without limitation, no delivery, late delivery, delivery of nonconforming or defective goods, or breach of warranty, as well as Seller’s failure to provide Buyer, upon request, with reasonable assurances of future performance, then, in addition to Buyer’s other rights and remedies available under this Purchase Order or at law, upon notice to Seller, Buyer (i) may cancel the Purchase Order, or any part thereof; (ii) require repair or replacement of the Goods; (iii) recover all loss, damage and expense resulting from the breach or other failure; and/or (iv) reject further deliveries of Goods and/or return excess or early deliveries to Seller at Seller’s expense. Seller will also be in breach if the Goods fail quality requirements, including, but not limited to, audits and inspections by Buyer, a third party or the government or any governmental agency. Buyer may immediately terminate or cancel a Purchase Order if Seller becomes insolvent, is adjudicated bankrupt, files a voluntary petition in bankruptcy, makes an assignment for the benefit of creditors, or seeks protection from creditors under any applicable laws.
- 8. CHANGES / CANCELLATION.
- Buyer reserves the right at any time to make changes in requirements, specifications, materials, packaging, time and place of delivery, or delivery method related to the Goods. If a change by Buyer, which did not result from a breach by Seller of its obligations, causes an increase or decrease in the cost or time required for performance of the requirements of the Purchase Order, an equitable negotiated adjustment may be made to the price, quantity or delivery terms as agreed upon by Seller and Buyer. Buyer reserves the right to cancel this Purchase Order in whole or in part at any time upon notice to Seller. Unless such change or cancellation is due to Seller’s breach of its obligations, Seller shall be entitled to reasonable charges that cannot be recovered through Seller’s repurposing or re-sale of the Goods or other Seller mitigation, not to exceed the Purchase Order price. Buyer has no obligation to pay Seller for work performed after Seller’s receipt of the notice of a cancellation, nor for any costs that Seller could have reasonably avoided. Seller agrees that it will not be entitled to any damages for lost profits or lost opportunity related to the portion of the Purchase Order that is cancelled or terminated by Buyer. These Terms and Conditions will survive such cancellation or termination.
- 9. IDENTIFICATION OF SHIPMENTS.
- Seller shall provide to Buyer all shipping papers, including, without limitation, the original bill of lading and packing slip. Such documents will not amend in any manner the terms of the Purchase Order or these Terms and Conditions. Seller shall furnish Buyer with all material safety data sheets for material upon delivery of such material to Buyer.
- 10. CONSEQUENTIAL DAMAGES.
- In no event will either party be liable to the other for any incidental, indirect, special, consequential damages or loss of anticipated profits arising out of, or in connection with, the Purchase Order.
- 11. DISPUTE RESOLUTION.
- The Purchase Order and Terms and Conditions will be governed by, and construed and enforced in accordance with the laws of the State of North Dakota without regard to its conflicts of law principles. Any dispute between Seller and Buyer will, at Buyer’s sole discretion, be resolved by arbitration in accordance with the then current Construction Industry Arbitration Rules of the American Arbitration Association. The arbitration hearing will be conducted in Fargo, North Dakota.
- 12. INSURANCE.
- Prior to delivering the Goods, Seller shall procure and maintain the following minimum insurance coverages and limits of liability:
$500,000 each accident
$500,000 disease policy limit
$500,000 disease each employee
Commercial General Liability
$1,000,000 each occurrence
$2,000,000 general aggregate
$2,000,000 products/completed operations aggregate
$1,000,000 each accident
Such insurance shall not be less any coverages or limits of liability specified in the Purchase Order, or coverages and limits required by law.
Workers’ Compensation and Employer’s Liability - For any employee, owner or principal of the Seller who shall be at the site of the project to which delivery of the Goods is made, workers’ compensation coverage shall be provided whether or not required by statute. For deliveries to projects in those states where Workers’ Compensation insurance is provided through a state fund and Employer’s Liability coverage is not available, “stop gap” coverage shall be provided through either the Commercial General Liability policy or another state’s Workers' Compensation policy.
Commercial General Liability - Insurance required under this Paragraph shall provide coverage on an occurrence form no less broad than the ISO Form CG 00 01 or equivalent and shall include coverage for Products/Completed Operations, renewed and maintained for four (4) years after delivery of the Goods or such longer period as Buyer may require in a Purchase Order. The general aggregate limit shall be per project.
Automobile Liability - Insurance required under this Paragraph shall include coverage for all owned, hired and non-owned automobiles.
Employer’s Liability, Commercial General Liability and Automobile Liability insurance required herein may be arranged under single policies, or by a combination of underlying policies with the balance provided by an Excess or Umbrella Liability policy that is as materially broad as the underlying policy. To the greatest extent allowed by law, Seller shall endorse all policies required herein to add Buyer, the owner of the project (the “Owner”), and such other parties as Buyer is required to name as additional insureds on Buyer’s insurance, as “additional insureds”, with respect to but not limited to liability arising out of operations performed for Buyer or Owner by or for Seller. This insurance shall be primary and noncontributory to any insurance maintained by Buyer, Owner, or others required to be included as additional insureds. Seller shall maintain insurance with carriers authorized to do business in the state in which the project is located and having a current A.M. Best rating of not less than A minus (A-), unless a different A.M. Best rating is accepted by Buyer in writing. Evidence of this insurance shall be filed with Buyer prior to providing any Goods hereunder. Certificates shall be provided not less than ten (10) days prior to the expiration date of any of the required policies. Buyer shall not be obligated to review, nor shall receipt of the same, relieve Seller of complying with the insurance requirements listed herein, nor shall it be deemed a waiver of Buyer’s right to enforce the terms of Seller’s obligations hereunder. Seller shall provide written notice of cancellation or non-renewal to Buyer, within (30) days of notification of the same.
- Prior to delivering the Goods, Seller shall procure and maintain the following minimum insurance coverages and limits of liability:
- 13. INDEMNIFICATION.
- To the fullest extent permitted by law, Seller shall indemnify, hold harmless and defend Buyer and the Owner where the Goods are installed and used and their affiliates and their respective officers, directors, employees, owners, representatives and agents from and against any and all suits or claims alleging damages, losses and expenses, including attorneys’ fees, attributable to (i) injuries to persons or damage to property (including loss of use), arising out of or resulting from, the Goods; (ii) claims that any part of the Goods infringe any intellectual property rights of others (including patents, copyrights, trademarks); (iii) claims that the Goods were not manufactured or supplied in accordance with applicable laws or specifications; and (iv) claims that Seller failed to pay a supplier, subcontractor, employee or other third party.
- 14. CONFIDENTIALITY / PROPRIETARY RIGHTS.
- Seller shall not release any advertising or any other form of publicity mentioning Buyer or its employees or the Owner where the Goods are delivered unless Buyer approves such advertising or other form of publicity in writing. Seller acknowledges that it may have access to confidential and proprietary information and trade secrets such as, but not limited to, designs, drawings, specifications, and data of Buyer and agrees not to disclose any such information to any person or entity except as necessary in connection to its performance of the Purchase Order (and in such instance shall require that such person or entity comply with the obligations of this paragraph), and Seller shall not use such information for any purpose other than to perform the execution of the Purchase Order. If Seller has executed a separate confidentiality agreement (or similar agreement) with Buyer, Seller agrees that, in addition to the terms herein, its use and disclosure of Buyer’s confidential and proprietary information and trade secrets will be governed by the terms and conditions of such confidentiality agreement (or similar agreement). All information, equipment, materials and data of every kind and description that Seller receives, directly or indirectly, from Buyer or from a third party on behalf of Buyer is and will remain the property of Buyer.
- 15. INTELLECTUAL PROPERTY INFRINGEMENT.
- Seller warrants that the Goods will not infringe on any existing patents, copyrights or trademark rights, and agrees to indemnify, hold harmless, and pay Buyer all judgments, decrees, costs, and expenses, including attorneys’ fees, resulting from any such infringements. If any Goods furnished under the Purchase Order are held to so infringe, Seller shall, at its expense: (i) procure for Buyer the right to continue using such Goods; (ii) replace the Goods with substantially equivalent non-infringing Goods; or (iii) modify such Goods to become non-infringing with substantially similar performance.
- 16. COMPLIANCE.
- Seller warrants that the items delivered in accordance with the Purchase Order have been produced in compliance with the current requirements of local, state and federal law. Seller agrees to execute any equal opportunity documents or other federal documents required of suppliers of federal or state funded projects. If Buyer requires the Goods to perform under a contract or subcontract with the federal government, Seller will be subject to certain federal acquisition regulations. Seller will comply with the requirements of 41 CFR Part 60-1.4, 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 qualified 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.
- 17. TAXES.
- The price stated in the Purchase Order includes, and Seller accepts exclusive liability for payment of, all federal, state, county, municipal and other taxes imposed by law or contract, and based upon labor, services, materials, equipment or other items acquired, performed, furnished or used in connection with the Goods, including but not limited to sales, use, personal property and other taxes (including interest and penalties), whether stated separately, imposed by reason of furnishing the Goods, or the acquiring, furnishing, ownership or use of any materials, equipment, labor, services or other items in connection with furnishing the Goods.
- 18. MISCELLANEOUS.
- Seller may not assign this Purchase Order, in whole or in part, or delegate any of its obligations under this Purchase Order to any other party or entity without the prior written consent of Buyer. Any assignment or attempted assignment made without such approval will be void as to Buyer and the Purchase Order and Terms and Conditions will remain enforceable against Seller. While on Buyer’s premises or project sites, Seller and its employees, agents and representatives shall comply with all safety and security regulations of Buyer or owner of the site, and take all necessary precautions to prevent injury or damage to persons or property. Seller is an independent contractor of Buyer and not an employee, joint venture partner or other legal representative of Buyer.
Purchaser agrees to pay for the material on the terms specified. No retainage. The Quote may not be assigned by Purchaser. 3D Specialties, Inc. has not made any representation or warranty of any kind or advised or recommended on any traffic control layout, installation, plan or placement, quantities, type, specification or condition of the material purchased or required. Purchaser agrees to indemnify and hold 3D Specialties, Inc., including its parent, subsidiary and affiliated companies and its agents, harmless from and against any and all loss, damage, claim, liability, expense (including outside and in-house attorneys’ fees and costs), penalty, action or lawsuit arising from or related to any loss, damage, claim, liability, expense (including outside and in-house attorneys’ fees and costs) or penalty arising from or related to any injury, death, harm or damage to persons or property of any character or type whatsoever arising from or related to the operation, handling, traffic control layout, installation, plan or placement, quantities, type, specification, condition, transportation and/or use of the material purchased or required pursuant to the Quote. 3D Specialties, Inc. assumes no responsibility for any cause whatsoever and that 3D Specialties, Inc.’s liability under the Quote shall not exceed the amount paid to it for the materials purchased. Purchaser agrees to pay outside and in-house attorneys’ fees and costs in the collection and enforcement of the Quote, including, without limitation, in the event Purchaser breaches any of the terms of the Quote. Purchaser agrees to pay 1.5% per month for all past due accounts. All material remains the property of 3D Specialties, Inc. until paid for by Purchaser and Purchaser authorizes 3D Specialties, Inc. to retrieve the same from any location and charge Purchaser for the material and their retrieval if payment is not made per the terms of the Quote. Notwithstanding anything to the contrary, items or services not included in the Quote are not included in 3D Specialties, Inc.’s price and are excluded.