Global Lift Corp. Terms and Conditions of Purchase Order
These general terms and conditions shall govern and form an integral part of all purchase orders placed by Global Lift Corp., d/b/a Global Pool Products (“Purchaser”) for the supply of goods and/or services by your company (“Supplier”).
The purchase order (the “Order”) is an offer by Purchaser to buy the goods and/or services described therein, and it becomes a binding contract on these Terms and Conditions of Purchase Order (the “Terms”) when accepted by Supplier on the earlier of Supplier’s: (1) signature of the Order, (2) written or electronic acknowledgement of the Order, (3) shipment or delivery of goods, (4) commencement of work or services, or (5) acceptance of payment. Any changes in the Order or these Terms must be specifically agreed to by Purchaser in writing. These Terms prevail over any terms or conditions contained in any other documentation and expressly exclude any of Supplier’s general terms and conditions of sale or any other document issued by Supplier in connection with this Order.
Purchaser may at any time terminate the Order in whole or in part for any reason whatsoever, including convenience, by providing written notice of termination to Supplier. Upon termination, Purchaser’s only responsibility to Supplier shall be the purchase price for: (a) goods already made or delivered in accordance with the Order prior to written notice of termination; and (b) services performed and accepted before written notice of termination.
Purchaser will have the right at any time to make changes in the requirements, specifications, materials, packaging, time and place of delivery, or method of transportation for the Order upon written notice to Supplier. If any such changes cause an increase or decrease in the cost or the time required for the performance, an equitable negotiated adjustment will be made and the agreement created by the acceptance will be modified in writing accordingly. Supplier agrees to accept any such changes subject to this paragraph.
By acceptance hereof, Supplier will be deemed to have inspected and approved all specifications applicable to the goods and/or services ordered hereunder.
Supplier warrants to Purchaser that all goods or services will conform to the applicable specifications, drawings, designs, samples, and other requirements specified by Purchaser and will be merchantable; free from any defects in workmanship, material and design; fit for their intended purpose; and free and clear of all liens, security interests, or other encumbrances. Goods and services provided hereunder will not infringe or misappropriate any third party’s patent or other intellectual property rights. These warranties survive any delivery, inspection, acceptance or payment of or for the goods or services by Purchaser. These warranties are cumulative and in addition to any other warranty provided by law or equity. Supplier hereby assigns to Purchaser any warranties provided by manufacturers of products incorporated into goods or services provided by Supplier. If Purchaser gives Supplier notice of noncompliance, Supplier shall, at its own expense, promptly replace or repair the defective or nonconforming goods or services and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods or services to Supplier and the delivery of repaired or replacement goods or services to Purchaser. ANY ATTEMPT BY SUPPLIER TO DISCLAIM, EXCUSE, LIMIT OR MODIFY ANY WARRANTIES OR SUPPLIER’S LIABILITY HEREUNDER WILL BE OF NO FORCE OR EFFECT.
5. DEFECTIVE OR NONCONFORMING GOODS OR SERVICES.
Purchaser may inspect the goods on or after the date of delivery. Purchaser, at its sole option, may reject all or any portion of the goods if it determines they are nonconforming or defective. Supplier agrees that Purchaser’s payment under the Order will not be deemed acceptance of any goods or services delivered hereunder. Acceptance will not relieve the Supplier of warranty obligations or liability for defects. Supplier will promptly correct defects or replace any goods or services not conforming to Supplier’s warranties, solely at Supplier’s expense and without expense to Purchaser. If Supplier fails to correct defects or replace nonconforming goods promptly, Purchaser, after reasonable notice to Supplier, may, in Purchaser’s sole discretion, (i) make such corrections or replace such goods and charge Supplier for the cost incurred by Purchaser in doing so, or (ii) charge Supplier for a refund. Such remedies will not exclude any other legal remedies of Purchaser as a result of Supplier’s delivery of defective or nonconforming goods or services.
Supplier warrants that prices shown on the Order will be complete and that no additional charges will be added without Purchaser’s prior written consent, including but not limited to, shipping, packaging, duties, taxes, insurance or storage. Supplier warrants that the prices for goods will not be less favorable than prices applicable to sales by Supplier to any other customer purchasing like quantities of substantially comparable products.
7. PAYMENTS TERMS.
Supplier shall issue an invoice to Purchaser on or after the delivery and in accordance with these Terms. Except as otherwise set forth on the face of the Order, Purchaser shall pay all properly invoiced amounts due to Supplier NET 30 days after Purchaser’s receipt of such invoice, except for any amounts disputed by Purchaser in good faith. In the event of a payment dispute, Purchaser shall deliver a written notice to Supplier reasonably describing each disputed item. The parties shall seek to resolve all such disputes expeditiously and in good faith. Supplier shall continue performing its obligations under the Order notwithstanding any such dispute.
8. DELIVERY. TIME IS OF THE ESSENCE.
Supplier shall deliver the goods in the ordered quantities or perform the services as agreed to in writing by the parties (the “Delivery Date”). Timely delivery of the goods or services is of the essence. If, in order to comply with Purchaser’s required delivery date, it becomes necessary for Supplier to ship by a more expensive means than specified herein, any resulting increased transportation costs will be paid for by Supplier, unless caused by Purchaser. Supplier will notify Purchaser promptly of any delays or threatened delays in delivery performance. No acceptance of goods or services after the scheduled delivery date will waive Purchaser’s rights with respect to such late delivery, nor will it be deemed a waiver of future compliance with the terms hereon. All goods shall be delivered to the address specified in the Order or as otherwise instructed by Purchaser (the “Delivery Location”).
9. TITLE/RISK OF LOSS.
Title passes to Purchaser upon delivery of the goods to the Delivery Location. Supplier bears all risk of loss or damage to the goods until delivery of the goods to the Delivery Location.
Supplier, its agents, employees, carriers and subcontractors will (1) comply with all applicable laws, ordinances, codes, rules, regulations and government orders, including but not limited to, those pertaining to labor and working conditions, safety, health and hazardous materials; (b) apply for, obtain, and pay for all necessary permits and licenses, and pay applicable fees in connection therewith, and (c) pay promptly when due any and all applicable taxes due on goods or services furnished hereunder.
11. OWNERSHIP OF DELIVERABLE WORK.
Any deliverables provided by Supplier under the Order, including but not limited to, all written, graphic, audio, visual or other written or electronic materials (“Deliverable Work”) is provided to Purchaser as “work made for hire” in accordance with applicable laws. Unless otherwise specified in the Order, Purchaser will be the sole owner of all Deliverable Work from the time of its creation or invention. Purchaser will own all right, title, and interest in and to the Deliverable Work, including without limitation all of its right, title, and interest in copyright and related rights free of any claim by Supplier or any other person or entity. Supplier retains any rights it may have to pre-existing materials or work used in the creation of the Deliverable Work. Deliverable Work will not be deemed accepted until Purchaser has had a reasonable opportunity to inspect the goods or services.
12. INDEPENDENT CONTRACTOR.
This Agreement is made with Supplier acting as an independent contractor and not as an employee, joint venture partner, or other legal representative of Purchaser. Supplier will not represent that it is an agent or legal representative of Purchaser or incur any liabilities or obligations on behalf of Purchaser without Purchaser’s prior written authorization.
Supplier will defend, indemnify, and hold harmless Purchaser, its directors, officers, employees, agents, and representatives from and against any third party liability, loss, claims, demands, damage (including damage to property or bodily injury), and expenses (including reasonable attorney’s fees) arising out of, or in any way resulting from, Supplier’s performance or non-performance hereunder, including, but not limited to, any defect or nonconformity with Supplier’s warranties for the goods and services delivered hereunder; any act or omission of Supplier, its agents, employees, or subcontractors; any failure by Supplier, its agents, employees, carriers, or subcontractors to comply with the terms hereof; and any infringement or claim of infringement of any patent, copyright, trademark, trade secret or other intellectual property right.
Supplier will, at its own expense, procure and maintain during the entire period of performance under the Order, any insurance required by law and the following minimum insurance coverage in amounts no less than indicated:
a) Workers’ compensation Insurance – Covering all employees of Supplier and any other person as required by applicable statue.
b) Employers’ Liability Insurance – In the minimum amount of $1,000,000 per accident for bodily injury and $1,000,000 per employee for bodily injury by disease.
c) Automobile Liability Insurance (for use of Supplier vehicles to deliver goods or perform services) – Covering all of Supplier’s owned, hired, and non-owned vehicles, in the minimum amount of $1,000,000 combined single limit per accident for bodily injury and property damage.
d) Commercial General Liability Insurance – Including products liability, completed operations, contractual liability (applicable to the Order), contingent liability coverage for subcontractors, and broad form property damage endorsement, with minimum limits of $1,000,000 per occurrence and annual aggregate limits of $2,000,000.
e) Errors and Omissions or other Professional Liability Insurance (Services only) – Sufficient to cover services rendered under the Order, with a minimum of $500,000.
Upon acceptance of this Order, Supplier will promptly furnish to Purchaser certificates of insurance as evidence of these coverages, and any other time upon Purchaser’s request. Purchaser is to be notified at least thirty (30) days prior to the cancellation or material modification of such insurance. Purchaser will be named as an additional issued on the commercial general liability insurance. All insurance required hereunder shall be deemed primary insurance and shall not be deemed excess to any insurance of Purchaser.
In no event will Purchaser be liable to Supplier for any special, incidental, indirect, or consequential damages arising out of the Order, including, but not limited to, loss of profits, revenue, goodwill, or production downtime.
All claims for money due or payable by Supplier to Purchaser hereunder will be subject to deduction or set off by Purchaser.
17. FORCE MAJEURE.
Upon written notice to the other party, Purchaser or Supplier may delay delivery or acceptance due to causes beyond their reasonable control, and such delay will not be considered a breach of, or default under, the Order if the delay is caused by a Force Majeure Event which makes the affected party’s performance impossible or impracticable, either in whole or in part. “Force Majeure Event” will mean causes beyond the reasonable control of Purchaser or Supplier, including but not limited to, war, riot, terrorism or threat of terrorism, civil disorder, strikes, earthquake, fire, explosion, flood, government action, or embargoes, so long as such causes are not due to Purchaser’s or Supplier’s fault or negligence. The party affected by the Force Majeure Event will use its best efforts to cure the delay. Supplier will deliver the ordered goods or resume services when the Force majeure Event has been removed, or if partial performance is possible, Supplier will allocate the goods based on Purchaser’s requirements.
18. CONFIDENTIALITY; INFORMANCE SECURITY.
All confidential or proprietary information of Purchaser, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, whether disclosed orally or in writing and whether or not marked, designated, or otherwise identified as “confidential”, in connection with the Order is confidential, solely for the use of performing the Order and may not be disclosed or copied unless Purchaser agrees in writing. Upon Purchaser’s request, Supplier shall promptly return all documents and other materials received from Purchaser. This section shall not apply to information that is: (a) in the public domain; (b) known to Supplier at the time of disclosure; or (c) rightfully obtained by Supplier on a non-confidential basis from a third party.
Supplier will not assign or transfer the Order, or any part thereof, or any monies payable or to become payable thereunder without the prior written consent of Purchaser.
Without prejudice to any other right or remedy it may have, Purchaser reserves the right to set off any amount owing to it by Supplier against any amount payable to Supplier.
21. GENERAL PROVISIONS.
Any waiver by Purchaser of compliance with any of these Terms will not be deemed a waiver of any other Terms hereof and will not be deemed a waiver of any of Purchaser’s rights, privileges, claims, or remedies. These Terms and the Order constitute the entire agreement between the parties. All prior agreements, written or oral, relating to the subject matter hereof are superseded by the terms hereof. Such Terms may be modified only by a writing signed by both parties. The provisions herein are severable, and in the event that any provision is held to be unenforceable, the remaining provisions will continue in full force and effect. These Terms and the Order are governed by, and will be construed in accordance with, the laws of the state of Michigan, without regarding the conflicts of laws principles thereof. The parties consent to the exclusive jurisdiction of the State and Federal courts located in Huron County, Michigan for all disputes in any way related to or arising out of these Terms or the Order.