C.C. DICKSON COMPANY
TERMS AND CONDITIONS OF PURCHASE
1.
Purchase
Orders. C.C. Dickson Company (Dickson) agrees to purchase, and
Seller agrees to sell, solely on the terms and conditions of the purchase
orders Dickson submits to Seller (Purchase
Orders), the goods described in those Purchase Orders (the Goods). Seller shall deliver to Dickson a prompt
written acknowledgment of each Purchase Order. Seller shall be deemed to have
accepted a Purchase Order unless it delivers to Dickson a written rejection of
the particular Purchase Order within five days after it receives the Purchase
Order. All Purchase Orders shall be
automatically deemed to incorporate these terms and conditions of purchase (the
Terms), regardless of whether the
Purchase Order references these Terms.
To the extent the terms and conditions expressly stated in a Purchase
Order conflict with these Terms, the terms and conditions expressly stated in a
Purchase Order shall control. No term
or condition of any order confirmation or any other document issued by Seller
shall become part of the contract between the parties or bind Dickson.
Dicksons purchase of the Goods is expressly conditioned on Sellers acceptance
of the terms and conditions of the applicable Purchase Order, including these
Terms. Dickson objects to and rejects
all different and additional terms and conditions in Sellers order
confirmation and other documents.
2.
Warranty. Seller represents, warrants and covenants
that: (a) Seller shall deliver to Dickson good, exclusive and marketable title
to the Goods, free and clear of all liens, security interests, claims and
encumbrances; (b) for a period of 12 months after Dicksons acceptance of the
Goods, or any longer period specified in the Purchase Order, the Goods shall be
free from defects in materials and workmanship and shall comply fully with all
written descriptions, specifications, samples, drawings and representations
specified in the Purchase Order or that Seller publishes or provides to Dickson
before or in connection with the issuance of the Purchase Order; (c) the Goods,
and the manufacturing, selling and delivering of the Goods, shall comply with
all applicable federal, state, local and foreign statutes, laws, rules,
regulations and orders; and (d) the prices and other terms that Seller offers
to Dickson with respect to the Goods, taken as a whole, shall be at least as
favorable to Dickson as those Seller offers to any other person or entity for
similar quantities. Seller shall
promptly repair or replace, at Dicksons election, all Goods that do not comply
fully with this warranty. The warranty
period shall be extended for 12 additional months after any repair or
replacement with respect to the affected Goods, up to a maximum of 24 months
after the delivery of the original Goods.
Additionally, Seller hereby assigns to Dickson all third party
warranties with respect to the Goods.
3.
Delivery; Risk
of Loss; Acceptance. Unless the Purchase Order expressly provides
otherwise, Seller shall deliver all Goods, with accompanying detailed packing
slips, F.O.B. Dicksons location specified in the Purchase Order and shall bear
all risk of loss with respect to the Goods until Dickson actually receives and
accepts the Goods. Time is of the
essence with respect to the delivery of the Goods. Dickson shall have the right to inspect the Goods before
accepting them. Dickson shall have a
reasonable period of time, of at least seven days, after it discovers a defect
or nonconformity to reject the Goods or to revoke its acceptance of the
Goods. If Dickson rejects the Goods or
revokes its acceptance of the Goods, and Seller does not deliver conforming
Goods on or before the delivery date specified in the Purchase Order, Dickson
shall have the right, at Dicksons election, to terminate all or a portion of
the Purchase Order and to obtain a prompt refund from Seller of all payments
Dickson has made with respect to that portion of the Purchase Order Dickson has
terminated. Seller shall pay all costs
Dickson incurs in (a) rejecting Goods or revoking its acceptance of Goods or
(b) holding those Goods, making them available to Seller or returning them to
Seller. Seller shall comply with all of
Dickson labeling requirements for the Goods.
4.
Inspection. Dickson shall have the right
to place one or more inspectors in Sellers facilities at any time to inspect
the Goods, the manufacturing and assembling process for the Goods, all quality
assurance and other records relating to the Goods and Dicksons Property at no
cost to Dickson. Neither the presence
nor absence of an inspector or other personnel of Dickson in Sellers
facilities shall relieve Seller from any obligations under the Purchase Order,
and Dicksons failure to discover defects in the Goods shall not be deemed to
be a waiver of those defects.
5.
Insurance. Seller shall maintain until at least two years after Sellers latest
delivery of Goods to Dickson, and shall provide to Dickson from time to time at
Dicksons request current certificates evidencing, the following insurance
coverage: (a) workers compensation insurance with statutory limits and
employers liability insurance with limits of at least $500,000; (b) commercial
general liability insurance having a combined single limit of at least $1,000,000
per occurrence, including contractual liability, products and completed
operations liability, owners and contractors protective, blanket contractual
liability, personal injury liability, broad form property damage and explosion,
and collapse and underground hazard coverage; (c) comprehensive automobile
liability insurance having a combined single limit of at least $1,000,000 per
occurrence, including coverage for owned, hired and non-owned automobiles. This insurance shall be primary for all
purposes and shall contain standard cross liability provisions. All insurance
policies other than workers compensation and employers liability policies
shall be endorsed to add Dickson as an additional insured.
6.
No Additional Charges; Audit. Unless the Purchase Order expressly provides
otherwise, the prices specified in the Purchase Order are the total prices of
the Goods to Dickson, and Dickson shall not be responsible for any other
charges, fees, taxes or expenses, including sales taxes. Seller shall maintain complete and accurate
books, records and accounts of all materials, services and costs relating to
the Purchase Order in accordance with generally accepted accounting principles
for at least four years after Seller receives the final payment under the
Purchase Order. Dickson shall have the right to audit and copy those records.
7.
Payment; Discounts. Unless the
Purchase Order expressly provides otherwise, Dickson shall pay all of Sellers
invoices within 30 days after Dickson receives a correct invoice. Seller shall not send Dickson an invoice for
Goods until those Goods are delivered to Dickson. All of Sellers invoices shall refer to the Purchase Order and
contain its number. Any prompt payment discount Seller offers Dickson shall be
determined using the date Dickson receives a correct invoice and not the date
of any incorrect invoice.
8.
Cancellation and Delay. Dickson shall have the right at any time to cancel all or a portion of
any Purchase Order or to delay the delivery date of some or all of the Goods by
giving Seller written notice and without increasing the price of the Goods or
incurring any additional costs or expenses.
9.
Indemnification. Seller shall
defend, indemnify and hold harmless Dickson and its subsidiaries, affiliates,
directors, officers, employees and agents from and against all claims, actions,
demands, penalties, losses, damages, liabilities, obligations, and attorneys
fees and expenses arising out of or relating to: (a) any claim that the Goods
or the use of the Goods by Dickson or its customers infringes any patent,
copyright, trademark, trade name, service mark, trade secret or other property
right; (b) any breach of warranty by Seller; (c) any claim that the Goods are
defective, and (d) any claim that Dickson has or had a duty to warn a third
party with respect to the Goods. In the
case of a claim that the Goods are infringing, Seller shall have the right, at
its sole expense, to obtain for Dickson the right to continue using the Goods
without interference or to modify or replace the Goods in a manner acceptable
to Dickson in its sole discretion. Dickson shall give Seller reasonable written
notice of any claim Dickson contends falls within this indemnification.
10.
Default. If Seller defaults under any
term of the Purchase Order and does not cure that default within 15 days after
Dickson gives Seller written notice of default, Dickson shall be entitled: (a)
to suspend its performance under the Purchase Order; (b) to terminate the
Purchase Order and have no further obligation to Seller; (c) to declare all or
part of Sellers obligations to Dickson under the Purchase Order immediately
due and payable; and (d) to pursue any other right or remedy Dickson may
have. Dickson shall be entitled to set
off against all amounts Dickson owes Seller all amounts Seller owes Dickson.
11.
Confidentiality. Seller shall
keep confidential, not disclose to any person or entity and not use for any
purpose other than fulfilling its obligations under the Purchase Order, all
drawings, plans, specification, blueprints, equipment designs or other
information Dickson provides to Seller all information regarding the Purchase
Orders and Dicksons purchases, and all other information that Dickson
designates as being confidential. Seller shall not use Dicksons name or the
fact that Seller is selling Goods to Dickson in any press releases, media
statements or public communications or otherwise publicize the Purchase Orders
without Dicksons prior written consent.
Seller shall not use Dicksons name, logos, trademarks, service marks,
trade names or trade secrets in any way without Dicksons prior written
consent, and Dickson shall not be deemed to have granted Seller a license of,
or granted Seller any rights in, any of the foregoing by issuing any Purchase
Order.
12.
No Assignment. Unless the
Purchase Order expressly provides otherwise, Seller shall not assign, delegate
or subcontract all or any portion of the Purchase Order without the prior
written consent of Dickson. Any
attempted assignment, delegation or subcontracting without Dicksons prior written
consent shall be ineffective and void.
13.
Arbitration. Any claim or controversy arising out of or
relating to the Purchase Order or the breach of the Purchase Order shall be
resolved exclusively by binding arbitration in Charlotte, North Carolina under
the commercial arbitration rules of the American Arbitration Association then
in effect, and judgment may be entered on the award by any court of competent
jurisdiction. Each party shall be
entitled to a reasonable amount of prehearing discovery as allowed by the
arbitrators, provided that the discovery period shall not exceed 90 days. This Purchase Order and any controversy
relating to the Purchase Order shall be governed by the laws of the State of
South Carolina, excluding its conflict of laws provisions. The United Nations Convention on the
International Sale of Goods is expressly excluded and shall not apply.
14.
Remedies. The remedies in the Purchase Order are cumulative and in addition to
all rights and remedies at law and in equity.
The parties may exercise their rights and remedies in any order or
combination they choose. No delay in
exercising or failure to exercise a right of remedy shall impair that or any
other right or remedy or be construed as a waiver of any default.
15.
Entire Agreement. This
Purchase Order contains the entire agreement of the parties relating to the
subject matter and supersedes all prior and contemporaneous agreements,
understandings, usages of trade and courses of dealing, whether written or
oral. This Purchase Order may only be
modified by a written agreement, signed by both parties, expressly modifying
the Purchase Order.
