Vendor Terms and Conditions

TERMS AND CONDITIONS – PURCHASE ORDERS

1. APPLICABILITY. These terms and conditions (the “Terms”) apply to any purchase order (each, a “Purchase Order”) issued by Radiac Abrasives, Inc. (the “Buyer”) for the purchase of the goods specified on the face of such purchase order (the “Goods”) from the party to whom the purchase order is addressed (the “Seller”). These Terms, together with each Purchase Order, constitute the sole and entire agreement of the parties with respect to sale and purchase of the Goods, and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter. THESE TERMS PREVAIL OVER ANY TERMS OR CONDITIONS CONTAINED IN ANY OTHER DOCUMENTATION AND EXPRESSLY EXCLUDE ANY OF SELLER’S GENERAL TERMS AND CONDITIONS OF SALE OR ANY TERMS AND CONDITIONS CONTAINED IN ANY OTHER DOCUMENT ISSUED BY SELLER IN CONNECTION WITH THE SALE OF GOODS OR ANY PURCHASE ORDER (INCLUDING ANY PROPOSAL, QUOTATION, INVOICE, PURCHASE ORDER, ACKNOWLEDGEMENT OR SIMILAR DOCUMENT OF SELLER). THERE ARE NO UNDERSTANDINGS, TERMS OR CONDITIONS BETWEEN THE PARTIES WITH RESPECT TO THE GOODS NOT FULLY EXPRESSED HEREIN.
2. ACCEPTANCE. These Terms are not binding on Buyer with respect to a Purchase Order until Seller starts to perform in accordance with such Purchase Order. It is the responsibility of Seller to inform Buyer if Seller cannot meet the requested delivery date set forth on a Purchase Order prior to commencing performance of such Purchase Order. Buyer, in its sole discretion, may withdraw any Purchase Order in full at any time before it is accepted by Seller. It is the responsibility of the Seller to request a copy of the Terms and Conditions from the Buyer if they wish to see them.
3. MODIFICATION. These Terms can be amended, modified or rescinded only in writing signed by both parties or their duly authorized agents.
4. DELIVERY.
   1. Seller shall deliver the Goods in the quantities and on the date(s) specified in each Purchase Order or as otherwise agreed in writing by the parties (the “Delivery Date”). All shipments of Goods must arrive at the Buyer-designated delivery location no later than 10:00 a.m. local time on the Delivery Date. TIME IS OF THE ESSENCE WITH RESPECT TO DELIVERY OF THE GOODS. Seller shall ensure that Goods arrive at Buyer-designated delivery locations, either international or domestic, no more than seven (7) days earlier than the applicable Delivery Date. Seller will notify Buyer immediately if for any reason shipment cannot be made as specified. Seller shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses directly attributable to Seller’s failure to deliver the Goods on the Delivery Date.
   2. Seller shall obtain Buyer’s prior written approval for partial shipments prior to shipment. Buyer reserves the right to cancel all or any part of the undelivered portion of a Purchase Order. In such event, Buyer shall be liable to Seller only for Seller’s actual properly documented and reasonable out-of-pocket expenses arising directly from such cancellation. Seller must submit documentation of reasonable out-of-pocket expenses within 30 days of notice of such cancellation.
   3. A detailed shipping notice should be emailed or faxed to Buyer as soon as the Goods are placed in transit.
5. PACKAGING; LABELING. Seller shall properly pack, load, label, mark and ship the Goods in accordance with applicable law and all relevant or potentially relevant industry standards. Seller shall ship all Goods in proper packaging sufficient to prevent damage to the Goods during Seller’s standard shipment and storage processes. Seller shall package all items in suitable containers to permit safe transportation and handling. Each shipment must contain a bill of lading and a packing list and must reference the item numbers and Purchase Order number. Each delivered container must be labeled and marked to identify contents without opening.
6. TITLE AND RISK OF LOSS. Title and risk of loss to Goods shipped under any Purchase Order passes to Buyer upon delivery of the Goods at Buyer’s named place of delivery. Notwithstanding the foregoing, risk of loss to Goods shipped under any Purchase Order passes to Buyer upon receipt and acceptance by Buyer of the Goods, and Seller will bear all risk of loss or damage with respect to the Goods until Buyer’s receipt and acceptance of such Goods in accordance with the terms hereof.
7. RIGHT OF INSPECTION AND REJECTION. Buyer has the right to inspect the Goods on or after the Delivery Date. Buyer, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if (i) Buyer determines the Goods are nonconforming or defective or (ii) Seller shipped more than 110% of the quantity of Goods set forth on the Purchase Order (Goods in excess of 100% of the originally requested quantity shall be deemed “Excess Goods”). If Buyer rejects any portion of the Goods, Buyer has the right, effective upon written notice to Seller, to require replacement of the rejected Goods. If Buyer requires replacement of the rejected Goods, Seller shall, at its expense, replace such Goods within 10 days of Buyer’s request to replace the Goods. If Buyer accepts delivery of Excess Goods, the price for such Excess Goods shall be 50% less than the Price (as defined below). Seller shall pay for all related expenses, including, but not limited to, transportation charges for the return of the defective goods and the delivery of replacement Goods. Any inspection or other action by Buyer under this Section G shall not reduce or otherwise affect Seller’s obligations under these Terms, and Buyer shall have the right to conduct further inspections after Seller has carried out its remedial actions. Acceptance of any part of any Purchase Order or payment of any part of the purchase price shall not bind Buyer to accept further shipments, nor deprive Buyer of the right to return Goods already received.
8. PRICE. Except as set forth in Section G, the price of the Goods shall be the price stated on the Purchase Order (the “Price”). Except as set forth in Section I, the Price includes all packaging, transportation costs, insurance, customs, duties and other applicable fees. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Buyer. If (i) Seller sells comparable quantities of similar Goods to any other customer at a price lower than the Price for each Product set forth on the Purchase Order or (ii) if the general market price on goods of like quality declines below that specified on the Purchaser Order, Seller must apply that price to all Goods under such Purchase Order. If Seller fails to meet the lower price, Buyer, at its option, may terminate the Purchase Order without liability.
9. TAXES. Each invoice issued by Sellers must specify whether the Price is inclusive of sales, use, excise and similar taxes levied as of the date of the invoice by federal, state, municipal or other governmental authority applicable to the Goods furnished hereunder. All such taxes and charges, if applicable, shall be shown separately on Seller’s invoice.
10. PAYMENT. Seller shall issue an invoice to Buyer within 90 days after the completion of delivery of the Goods. Invoices should be submitted electronically to the person and at the e-mail address set forth on the Purchase Order. Buyer shall pay all properly invoiced amounts due to Seller within the number days after Buyer’s receipt of such invoice set forth on the Purchase Order or otherwise in writing by Buyer, except for any amounts disputed by Buyer in good faith. In the event of a payment dispute, Buyer shall deliver a written statement to Seller no later than 10 days prior to the date payment is due on the disputed invoice listing all disputed items. The parties shall seek to resolve all such disputes expeditiously and in good faith. Seller shall continue performing its obligations under these Terms notwithstanding any such dispute. All invoices and other documentation sent to Buyer by Seller must be clearly marked with Buyer’s Purchase Order number. Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Buyer to Seller under these Terms.
11. WARRANTIES.
    1. Seller warrants that the Goods (i) will be new and unused, (ii) will be free from any defects in workmanship, material, and design, (iii) will conform with the specifications, drawings, samples or other documentation provided by Buyer and with all applicable standards, codes, laws, policies and regulations as required herein, (iv) will be merchantable and satisfactory quality, fit for their intended use, (v) will be free and clear of all liens, security interests, or other encumbrances and (vi) will not infringe or misappropriate any third party’s patent, trade secret, trademark or other intellectual property rights. Seller further warrants that it has and will exercise reasonable skill, care and due diligence and shall carry out all work in accordance with good engineering and professional practice. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Buyer’s discovery of the noncompliance of the Goods with the foregoing warranties.
    2. Notwithstanding any additional remedies available to Buyer provided in these Terms, in the event of Seller’s breach of any of the foregoing warranties, Seller will, at Buyer’s option and at Seller’s sole cost and expense, refund the purchase price, or, if Buyer wishes for Seller to replace such Goods, correct or replace the affected Goods within 10 day(s) after notice by Buyer to Seller. All costs associated therewith, including, without limitation, costs relating to the inspection, transport and shipment of the Goods and costs resulting from supply chain interruptions, will be borne by Seller. If Seller fails to repair or replace the Goods within the time periods set forth herein, Buyer may repair or replace the Goods at Seller’s sole expense. The claims arising out of the foregoing warranties and any other warranties given by Seller or Seller’s suppliers to Seller shall be transferable, and deemed so transferred, in full to Buyer’s customer and/or the end-user, as applicable.
12. INSURANCE. Seller shall, at its own expense, maintain and carry insurance in full force and effect that includes, but is not limited to, commercial general liability (including product liability) in amounts of not less than US$200,000 per occurrence. At Buyer’s request, Seller will provide Buyer with one or more certificates of insurance evidencing such coverage. Seller shall provide Buyer with thirty (30) days’ advance written notice in the event of a cancellation or material change in Seller’s insurance policy. Except where prohibited by law, Seller shall require its insurer to waive all rights of subrogation against Buyer’s insurers and Buyer or the Indemnified Parties.
13. INDEMNIFICATION. Seller shall indemnify, defend and hold harmless Buyer and its officers, directors, employees, agents, Affiliates, successors and assigns (collectively, the “Indemnified Parties”) from and against any and all losses, claims, damages, injuries, death, actions, judgments, costs, interest, penalties, fines and expenses of whatever kind, including reasonable attorneys’ fees and other costs of defending any actions sustained or incurred by any Indemnified Party, arising out of or relating to: (i) Seller’s breach of any representation, warranty, term, provision or undertaking in these Terms; (ii) the Goods; (iii) Seller’s negligence, fraud or willful misconduct or (iv) any claim that the purchase, use or possession of the Goods by Buyer or any Indemnified Party infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. In no event shall Seller enter into any settlement of such a claim without Buyer’s or Indemnified Party’s prior written consent. As used in these Terms, “Affiliate” means, with respect to any entity, any other entity controlled by, under the control of, or under common control with such entity, with the word “control” (or any derivation thereof) meaning the ability to direct, directly or indirectly, the management or policies of any entity
14. TERMINATION OF PURCHASE ORDER. Upon Seller’s (i) failure to deliver the Goods by the Delivery Date or (ii) violation of any representation or warranty set forth in these Terms, Buyer may send Seller a termination, hold or similar notice at any time applicable to any unshipped portion of the Goods. In addition to any remedies that may be provided under these Terms, Buyer may terminate any Purchase Order with immediate effect upon written notice to the Seller, either before or after the acceptance of the Goods, if Seller has not performed or complied with any of these Terms, in whole or in part. If the Seller becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then the Buyer may terminate any Purchase Orders upon written notice to Seller. If Buyer terminates a Purchase Order for any reason, Seller’s sole and exclusive remedy is payment for the Goods received and accepted by Buyer prior to the termination.
15. COMPLIANCE WITH LAWS. Seller represents, warrants and covenants that all Goods and materials delivered in connection with these Terms will be and will have been produced and/or provided in compliance with all applicable laws, rules, regulations, codes, orders, treaties and ordinances. Seller represents, warrants and covenants that Seller has and shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under these Terms.
16. ASSIGNMENT. Seller shall not assign, transfer, delegate, or subcontract any of its rights or obligations under these Terms without the prior written consent of Buyer. A direct or indirect change of control of Seller (including via merger, stock sale, equity sale, consolidation or any other transaction whereby a person acquires the right, by contract, ownership of equity securities or otherwise, to direct or cause the direction of, directly or indirectly, the management or control of Seller) shall be deemed an “assignment” by Seller pursuant to this Section P Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Seller of any of its obligations hereunder. Buyer may at any time assign, transfer or subcontract any or all of its rights or obligations under these Terms without Seller’s prior written consent.
17. SEVERABILITY. If any provision of these Terms shall be deemed to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
18. FORCE MAJEURE. Buyer and Seller shall not be liable for any delay or failure of performance due solely to strikes, lockouts or other labor disputes, fires, epidemics, terrorism, political instability within the country in which Seller or Buyer is operating, acts of God or other causes beyond that party’s reasonable control; provided, that the affected party shall have given written notice to the other of any such cause for delay or anticipated delay promptly following its commencement and shall have used its best efforts to make or accept deliveries, as the case may be, as expeditiously as possible. Notwithstanding any additional remedies available to Buyer provided in these Terms, if Buyer reasonably believes that the delay or anticipated delay in Seller’s deliveries may interfere with Buyer’s operations and such delay may last more than 10 day(s), Buyer shall have the right, without liability to Seller, to immediately terminate these Terms.
19. CONFIDENTIALITY. All business and technical information, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, that is furnished by Buyer to Seller pursuant to these Terms in any form or medium shall be considered “Proprietary Information”. Seller will protect Proprietary Information with the same degree of care as it uses to protect its own proprietary information, but no less than a reasonable degree of care. Seller shall use all Proprietary Information disclosed to it only for the purpose contemplated in these Terms and will disclose Proprietary Information only to those of its officers, employees, agents, independent contractors or advisors with a need to know and advised in writing to keep such Proprietary Information confidential in accordance with this Section S. Seller shall have no obligation to protect the confidentiality of Proprietary Information that: (i) was known to Seller prior to the receipt thereof; (ii) is in the public domain as of the date of receipt; or (iii) has been independently developed by personnel of Seller with no knowledge of the Proprietary Information. The restrictions of this Section S shall not apply to the disclosure of Proprietary Information compelled by law, provided that the party being required to make such disclosure shall immediately notify Buyer of such requirement and the terms thereof so that Buyer may seek protection of such Proprietary Information. The obligations of this Section shall survive for a five (5) years following the date of the final Purchase Order delivered by Buyer to Seller.

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