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THE LINCOLN ELECTRIC COMPANY
TERMS AND CONDITIONS
RELATING TO THE PURCHASE OF MATERIALS
January 1, 2001
1. Definitions
"BUYER" shall mean The Lincoln Electric Company, "SELLER" shall mean the person or entity named on the face of this purchase order who is providing Goods, "Goods" shall mean hardware, firmware, software and/or services provided by SELLER to BUYER under this purchase order.
2. Acceptance
All purchase orders must be acknowledged by the SELLER in writing within three working days from receipt of the purchase order for price, quantity and delivery date to BUYER. SELLER's commencement of work on the Goods subject to BUYER's order, shipment of the Goods, or performance of all or a portion of the services subject to an order, whichever occurs first, shall constitute an acceptance of BUYER's purchase order and these terms and conditions.
Acceptance of BUYER's purchase orders is subject to acceptance of the express terms contained therein. Any proposal for additional or different terms, whether in SELLER's quotation, acknowledgment, invoice or other documents, unless approved in writing by BUYER, shall be deemed material and is hereby objected to and rejected. If SELLER accepts BUYER's order by the commencement of work, shipment or performance, or by other means, the order shall be deemed accepted by SELLER without any additional or different terms.
3. Inspection
BUYER shall have the right to inspect Goods before shipment, during the process of manufacture (with prior notice during SELLER's normal business hours) and after delivery to verify that the Goods conform to specified requirements. Such inspection by the BUYER does not absolve the SELLER of the responsibility to provide conforming Goods, nor does it preclude subsequent rejection by BUYER. Goods that are rejected by BUYER shall be returned to SELLER at SELLER's risk and expense.
4. Quantity
The specific quantity ordered must be delivered in full. Unless otherwise agreed by BUYER and SELLER, any different quantity is subject to BUYER's rejection and return to Seller at SELLER's risk and expense. Goods in excess of amount stated on purchase order may, at option of the BUYER: (a) be returned to SELLER, in which event, all expenses and charges, including freight to BUYER, packing, crating and cartage will be charged to SELLER's account; or, (b) be treated as if purchased under the order at the unit price therein named.
5 Prices
In the event that while this purchase order is in effect SELLER enters into an agreement or purchase order of similar scope with a third party for prices that are less than provided in this purchase order (a "Lower Priced Order"), then SELLER shall notify BUYER of such lower pricing and shall automatically extend such reduced prices to the BUYER, with such lower pricing retroactive to the date the prices in the Lower Priced Order took effect.
6. Delivery
Delivery shall be made to the ship to address in the quantities and on the dates specified in BUYER's purchase order. If SELLER is unable to make deliveries as specified by BUYER, SELLER shall notify BUYER immediately. In the event of failure to deliver on the date or in the manner agreed upon, the SELLER will ship premium freight at SELLER's expense. Late deliveries are subject to BUYER's rejection and return for credit at SELLER's risk and expense.
The SELLER shall be liable for charges and costs resulting from: (a) shipment by a mode or route other than specified, (b) premium freight costs arising by reason of failure of SELLER to make a promised delivery date, (c) premium freight costs arising by failure of SELLER to make a single shipment, unless authorized in advance by BUYER, and (d) shipment to an erroneous destination. BUYER may deduct any amounts owed by SELLER to BUYER from any outstanding SELLER invoices.
7. Changes
BUYER reserves the right to make changes in the drawings, specifications and other provisions of this order. If any such change causes an increase or decrease in the cost of, or the time required for, the provision of the Goods, SELLER shall notify BUYER in writing within five (5) days of receipt of such change. Such notice shall include details as to the impact of the change on SELLER's cost and delivery dates. BUYER and SELLER shall negotiate in good faith an equitable adjustment to the purchase price and delivery times under the purchase order. If SELLER fails to notify BUYER in writing within five (5) days, then SELLER shall irrevocably waive any change in price or delivery times under the purchase order.
SELLER shall give BUYER advance written notice of any changes to specifications, designs or major changes in manufacture and processes or procedures related to goods or services provided to BUYER.
8. Cancellation
BUYER shall have the right to cancel this purchase order in full or in part, without liability to seller, on account of defects in material, workmanship or design, or if not delivered on or within ten (10) working days before the delivery date given on this purchase order or such other mutually agreed upon delivery date; or if not in accordance with the specifications, or drawings, or accepted samples referenced on the face of this order. BUYER may at any time by written notice cancel this purchase order or any part thereof at its convenience in which event, cancellation charges will be limited to SELLER's actual incurred cost to cancellation date plus reasonable profit. All cancellation claims made by SELLER shall be subject to prior audit and verification by BUYER. In no event shall BUYER be liable for cancellation charges in excess of the contract price for the cancelled Goods. Upon such settlement all materials, special tools and work in process will become the property of the BUYER.
9. Warranty
Unless otherwise agreed by BUYER and SELLER, SELLER warrants for a period of at least twenty-four (24) months from the date of delivery that all Goods supplied to BUYER shall conform to all drawings, specifications, samples and other descriptions, specified or adopted by BUYER, shall be merchantable, free from any defects in material and workmanship, and free of liens, claims and encumbrances. (Exception to 24 month warranty period: In the event that SELLER resells products to BUYER as a wholesale distributor, SELLER agrees to extend full individual manufacturer's warranties to BUYER as of the date of delivery to BUYER). If SELLER knows the particular purpose for which BUYER intends to use the Goods, SELLER warrants that such Goods, including packaging and labeling furnished to BUYER, shall meet the specific purpose. All Goods supplied to BUYER shall comply with all applicable federal, state and local laws and regulations. SELLER shall indemnify and hold BUYER harmless from any breach of these warranties. No limitations on BUYER's remedy contained in any quotation, acknowledgement, invoice or other document, if any, shall operate to reduce or otherwise limit such indemnification. Goods that are not as warranted may be returned to SELLER at SELLER's expense for either credit or replacement as BUYER may direct. BUYER may return such defective or nonconforming Goods to SELLER at SELLER's risk, and SELLER shall pay all transportation charges. Any payment by BUYER for such defective or nonconforming Goods shall be refunded by SELLER, except to the extent that SELLER promptly replaces or corrects such defects on nonconformity on a timely basis at SELLER's expense. These warranties shall survive acceptance and payment for the Goods.
10. Patent Indemnity:
SELLER shall indemnify, defend and hold harmless BUYER and its customers from and against all liabilities, damages, claims, losses, costs and expenses (including legal fees) which may be incurred by, assessed against or borne by BUYER by reason of any and all actions or proceedings charging infringement of any patent, trademark or copyright by reason of the sale or use of the Goods delivered hereunder, either alone or in conjunction with other items. If the use or sale of any Goods with respect to which SELLER indemnifies BUYER is enjoined as a result of such action or proceeding, SELLER, at no expense to BUYER, shall obtain for BUYER and its customers the right to use and sell said Goods or shall substitute equivalent goods. In the event that SELLER is unable to secure an equivalent item as a substitute, SELLER will indemnify BUYER and its customers for any kind and all losses or damages sustained by reason of such injunction and infringement.
11. Confidentiality
SELLER shall consider and treat all Confidential Information, as defined below, as confidential, and shall not disclose any Confidential Information to third parties, or use any Confidential Information for any purpose other than as required by BUYER's purchase order. BUYER retains all rights with respect to such Confidential Information, and SELLER shall not allow any Confidential Information to be copied or used in connection with goods or services furnished to any third party. The term "Confidential Information" includes all drawings, specifications, designs, engineering instructions, and any other information furnished by BUYER to SELLER. SELLER shall not advertise nor disclose the fact that BUYER has contracted to purchase goods or services from SELLER, nor shall Confidential Information relating to BUYER's purchase order be disclosed without BUYER's written permission. If any Goods have been designed in accordance with specifications or data furnished by BUYER, neither the Goods nor similar goods shall be reproduced by SELLER except with the written consent of BUYER and all specifications, drawings, photographs, data and other material or information supplied in connection therewith shall at all times remain the property of BUYER and shall be treated as Confidential Information by SELLER and shall be returned promptly upon the written request of BUYER. Unless otherwise agreed in writing by BUYER and SELLER, all right, title and interest in or to any inventions, developments, improvements or modifications or other intellectual property (collectively, "Inventions"), the development of which was at the request of, or funded in whole or in part by, the BUYER, shall become the sole property of BUYER. SELLER shall take all such actions as may be requested by the BUYER to perfect BUYER's ownership of such Inventions.
12. Indemnification and Insurance:
SELLER agrees to indemnify, defend and hold harmless BUYER against all liabilities, damages, claims, losses, costs and expenses (including legal fees) relating to property damage, death and/or bodily injury arising out of SELLER's performance under a BUYER purchase order which liability, claim, loss or expense is occasioned by SELLER's actions or omissions. SELLER agrees to indemnify, defend and hold harmless BUYER against any claims for bodily injury or property damage resulting from, or alleged to result from, unsafe or defective material, workmanship or design of the Goods.
SELLER shall maintain general liability insurance including coverage in an amount no less than $ 5 Million ($5,000,000) per claim, for property damage, bodily injury, and contractual liability. Upon request, SELLER shall furnish to BUYER certificates of insurance evidencing such insurance.
13. No Assignment
SELLER shall not assign BUYER's purchase orders to any third party except that SELLER may with prior written consent from BUYER, make an assignment of moneys due hereunder, to a financial institution subject to BUYER's right of set-off.
14. Setoff
BUYER shall be entitled to set off any amount owing at any time from SELLER to BUYER against any amount payable by BUYER under this purchase order.
15. Waiver
Either party's failure to insist on performance by the other party of any term or condition, or waiver of any breach or default hereunder by the other party shall not waive any other terms, conditions, or defaults whether of a similar type or not.
16. Modification
No modification may be made to the terms of this purchase order unless made in writing and signed by the party against whom performance is sought.
17. Compliance with Laws and Standards
SELLER warrants that the Goods supplied hereunder will be produced in compliance with, and the SELLER agrees to be bound by, all applicable federal, state, and local laws, orders, rules, and regulations. SELLER warrants that all Goods delivered will comply with applicable OSHA standards. SELLER agrees to promptly notify BUYER of any product recall or any harmful ingredients, or defects contained in SELLER's products. SELLER will provide a Material Safety Data Sheet (MSDS) to BUYER as required by law.
18. Governing Law
All BUYER's purchase orders shall be governed by, interpreted, and enforced in accordance with the internal laws of the State of Ohio, including the provisions of Ohio's Uniform Commercial Code, but specifically excluding the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods and without giving effect to its conflict of laws principles. SELLER hereby unconditionally and irrevocably agrees to submit to the jurisdiction of any court of general jurisdiction sitting in the state of Ohio.
19. Acknowledgement
This purchase order contains the entire agreement among the parties with respect to the subject matter hereof. Any reference to SELLER's offer to sell or proposal is solely for the purpose of incorporating the description, pricing and specifications of the Goods contained therein to the extent that such description, pricing and specifications do not conflict with the description, pricing and specifications on the face of this order. In the event SELLER accepts this order on its own acknowledgement or acceptance form, it is understood that all the terms and conditions of this order (including the terms and conditions incorporated by reference) are not subject to any additional or different terms in the SELLER's form and that only the terms and conditions of this order shall prevail. ANY ADDITIONAL OR DIFFERENT TERMS IN THE SELLER'S FORM ARE HEREBY DEEMED TO BE MATERIAL ALTERATIONS AND NOTICE OF OBJECTION TO AND REJECTION OF SUCH TERMS IS HEREBY GIVEN.
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