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Elementor #2932



  1. Definitions. For purposes of these Terms and Conditions of Purchase (the “Terms and Conditions”), the following terms shall have the following meanings:

(a)  Buyer.  The term “Buyer” shall mean CMD Corporation, a Wisconsin corporation.

(b)  Purchase Order.  The term “Purchase Order” shall mean Buyer’s purchase order(s) incorporating these Terms and Conditions.

(c)  Seller.  The term “Seller” shall mean the party(ies) identified as the vendor(s) in the Purchase Order.

(d)  Contract.  The term “Contract” shall mean collectively (1) these Terms and Conditions, (2) the Purchase Order and (3) any other documents or instruments which are incorporated into, made a part of or included with these Terms and Conditions or the Purchase Order.  These Terms and Conditions are incorporated into and are a material part of the Purchase Order.

(e)  Goods.  The term “Goods” shall mean the parts, supplies and/or other goods, if any, described in the Purchase Order (and in the specifications and data, if any, submitted by Buyer therewith), which are to be provided by Seller under the Contract.

(f)  Services.  The term “Services” shall mean the services, if any, described in the Purchase Order (and in the specifications and data, if any, submitted by Buyer therewith), which are to be provided by Seller under the Contract.

(g)  Other.  The terms “herein”, “hereunder” or similar terms shall be deemed to refer to the Contract as a whole and not to the particular section or paragraph in which such word(s) is or are used in the Contract.

  1. Contract. The Contract governs the terms and conditions under which Seller shall provide to or for Buyer the Goods and/or the Services.  The provisions of the Contract are in lieu of and replace any and all terms and conditions contained in any document(s) issued at any time by Seller, including, but not limited to, Seller’s purchase order confirmation or acknowledgement.  Any additional or different terms or conditions contained in any document(s) issued at any time by Seller are hereby objected to by Buyer, shall be wholly inapplicable to the Contract, and shall not be binding in any way on Buyer.
  2. Acceptance by Seller. Unless otherwise specifically provided in the Purchase Order, the Purchase Order shall expire and cease to be of any force or effect on the date that is fourteen (14) days after the date of the Purchase Order, or upon the date of delivery by Buyer to Seller of written notice of cancellation of the Purchase Order, unless the Purchase Order is sooner accepted by Seller.  Acceptance by Seller of the Purchase Order and the Contract may be evidenced by any of the following:  (a) Seller’s unqualified written acceptance received by Buyer within the period of time, if any, specified in the Contract; (b) commencement by Seller of performance of delivery of the Goods and/or performance of the Services; or (c) any other conduct by Seller which recognizes the existence of a contract between CMD and Seller with respect to the subject matter hereof.
  3. Acceptance by Buyer. No document(s) issued at any time by Seller shall be binding on Buyer unless expressly accepted in writing by a duly authorized representative of Buyer at Buyer’s principal offices located in Appleton, Wisconsin.
  4. Prices: Security Interest. All prices are firm for the term of the Contract, and no additional charges will be allowed unless specifically provided for in the Purchase Order. Notwithstanding the prices set forth herein, Seller agrees that if Seller sells the Goods or Services or similar items in Iike quantities to any third party(ies) at a price less than that set forth herein, Seller shall make the same price available to Buyer. All time periods for determining payment due dates and availability of discounts commence with Buyer’s receipt of the items or receipt of an invoice, whichever is later.

If Buyer is to make any payment before Buyer’s receipt of the Goods or Services, Seller grants Buyer a security interest in the Goods and all proceeds thereof to secure performance of Seller’s obligations hereunder, and agrees to execute and deliver, or agrees that Buyer may execute, deliver and file, such financing statements as Buyer may reasonably consider necessary or appropriate to perfect its security interest.

  1. Payment. Unless otherwise specified in the Purchase Order, Buyer will pay invoices for Goods shipped or Services provided to Buyer or its designee within thirty (30) days of receipt of the same or receipt of invoice for the same, whichever is later. If Buyer pays said invoice within ten (10) days of such later date, Buyer may deduct two percent (2%) of the invoice amount as a prompt payment discount.
  2. Delivery Schedule. Seller shall deliver the Goods or Services within the time, which is of the essence, in the quantities and at the prices specified in the Contract, in accordance with Buyer’s specifications (as well as the sample approved by Buyer, if any). If Seller fails to comply with such requirements, Buyer may, in addition to any other rights or remedies, cancel the Contract and be relieved of all liability for any undelivered portion. Seller shall not unreasonably anticipate delivery by purchasing materials or manufacturing quantities in excess of what is reasonably required to meet Buyer’s delivery schedule. Goods received in advance of Buyer’s delivery schedule may, at Buyer’s option, be returned at Seller’s expense or be accepted and payment withheld until the scheduled delivery date.

In the event that Buyer fails to pay any outstanding receivable to Seller, for any reason whatsoever, Seller agrees that it will not withhold shipment or other performance under the Contract without giving to Buyer sufficient advance written notice to enable Buyer to obtain the equivalent item(s) from an alternate source(s).

  1. Expediting. The Goods and/or Services furnished hereunder shall be subject to expediting by Buyer or its representatives. Buyer’s personnel shall be allowed reasonable access to Seller’s plants, and those of its sub-suppliers, for expediting purposes. As requested by Buyer, Seller shall supply schedules and progress reports for Buyer’s use in expediting.
  2. Packing and Shipping. All Goods shall be suitably packed, marked conspicuously with Buyer’s Purchase Order number, and shipped in accordance with shipping instructions specified herein and otherwise in accordance with the requirements of common carriers so as to obtain the lowest transportation cost. Buyer shall have the right to route all shipments. No charge shall be made to Buyer for packaging, boxing or cartage unless separately itemized in the Purchase Order. Seller shall be liable to Buyer for any loss or damage resulting from Seller’s failure to act so as to provide adequate protection during shipment. Additional expenses, charges or claims incurred as a result of deviation from the specified route, non-compliance with other shipping instructions or improper description of the shipment in shipping documents shall be Seller’s responsibility. Immediately upon shipment Seller shall notify Buyer of complete shipping and routing information.
  3. Inspection. Seller shall allow Buyer access to Seller’s plant at all reasonable times to inspect any Goods or Services or work in process for production of Goods. All Goods and Services are subject to final inspection and approval at Buyer’s plant or other place designated by Buyer. Such inspection shall be made within a reasonable time after delivery, irrespective of the date of payment. Notwithstanding any payment that may be made, Goods and Services shall not be deemed accepted by Buyer until Buyer has had a reasonable opportunity to inspect them.
  4. Rejected Items. Buyer may return rejected Goods at Seller’s expense. Seller shall not replace Goods returned as defective unless so directed by Buyer. At Buyer’s request, Seller shall, at Seller’s expense, re-perform or otherwise correct any defective Services.
  1. Risk of Loss. The risk that Goods may be lost, damaged or delayed in transit shall be borne by Seller until actual receipt of them by Buyer in conformity with the terms of the Contract.
  2. Changes. Buyer may change drawings, specifications, quantities, delivery schedules or methods of shipment or packaging on any item at any time and Seller agrees to make such changes. If such changes result in an increase or decrease in cost, an equitable adjustment of price and delivery schedules may be made, or Buyer may, at its option, terminate the Contract pursuant to Section 18 of these Terms and Conditions if agreement on an equitable adjustment cannot be reached. Seller must assert claims for equitable adjustment within ten (10) days of the change order. The change order, together with any related documents or instructions, shall constitute a part of the Contract.
  3. Warranty/Remedy. In addition to Seller’s standard product warranty and/or service guarantee, Seller warrants that all Goods and Services supplied hereunder shall (a) be free and clear of all liens and encumbrances, good and merchantable title thereto being in the Seller; (b) be free from any defects in design, material or workmanship and be of good and merchantable quality; (c) conform to Buyer’s specifications and the sample approved by Buyer, if any, as the case may be, and be fit for the known purposes for which purchased hereunder; and (d) comply and have been produced, processed and delivered in conformity with all applicable federal, state or other statutes, laws, administrative regulations, codes and orders. The foregoing warranties shall survive inspection, delivery and payment and shall run in favor of Buyer and its customers.

If Seller breaches the foregoing warranty, or fails to perform or comply with any provision of the Contract, Seller shall be liable to Buyer for all damages rising therefrom. Buyer expressly retains all of Buyer’s rights and remedies provided by law or in equity or by statute in the event of such breach. Without Iimiting the foregoing, Buyer may at its option require Seller to repair or replace, at Seller’s expense, any Goods and/or Services that breach Seller’s warranty even if such Goods and/or Services are located other than at Buyer’s facility. In the event that any breach requires a field campaign for such repair or replacement, or Seller otherwise initiates a field campaign to repair any Goods, Seller agrees that Buyer, at its option, may participate in any such field campaign at Seller’s expense. Seller further agrees to give Buyer at least thirty (30) days’ prior written notice of any field campaign Seller initiates.

  1. Non-assignability. Seller shall not assign the Contract in whole or in part, voluntarily or involuntarily, by operation of law or otherwise, or sublet the work to be done hereunder without the prior written consent of Buyer; but this provision shall not restrict Seller in the procurement of component parts or materials. If the Contract shall be terminated for Buyer’s convenience, Buyer’s Iiability to Seller with respect to such parts or materials shall not exceed the amount for which Seller would be liable to its supplier or suppliers if such liability were determined on the basis of Section 18 of these Terms and Conditions.
  2. Taxes. Except as otherwise expressly set forth in the Purchase Order, Buyer shall not be liable for any federal, state or local taxes, duties, customs or assessments of any kind in connection with the sale, purchase, transportation, use or possession of the Goods or Services hereunder.
  3. Indemnity. Except for Goods ordered in accordance with Buyer’s design, Seller warrants that the sale or use of the Goods furnished hereunder will not infringe or contribute to infringement of any patent, copyright, trade secret, trade name, trademark or any proprietary right of another in the United States or elsewhere, and Seller shall indemnify Buyer, its successors and assigns and its customers whether direct or indirect, against any and all losses, damages and expenses (including, but not limited to, reasonable attorneys’ fees and other costs of defending any action) which they, or any of them, may sustain or incur as a result of an alleged breach of this warranty.

If any Goods or the use thereof is held to constitute infringement of any intellectual property right and the use thereof is enjoined, Seller shall, at its expense, either procure for Buyer, its dealers and customers, the right to continue using said Goods or replace said Goods with a substantially equal, but non-infringing product, acceptable to Buyer; or, if further use of the Goods is not possible, Seller will accept the return of any unsold Goods and refund to Buyer the purchase price and transportation costs therefor.

Seller also shall hold harmless and indemnify Buyer, its successors and assigns and its customers whether direct or indirect, against any and all losses, damages and expenses (including, but not limited to, reasonable attorneys’ fees and other costs of defending any action) which they, or any of them, may sustain or incur as a result of any claim of negligence, breach of warranty or strict liability in tort in connection with the Goods or Services, except such as may be caused solely by the negligence of Buyer, its successors and assigns, and/or its customers.

  1. Cancellation By Buyer. Buyer shall have the right to cancel the Contract without cause and in such event Buyer’s liability for cancellation shall be limited to Seller’s actual cost for work and materials, applicable solely to the Contract, which shall have been expended before notice of cancellation has been received by Seller.
  2. Drawings, Specifications and Technical Information. Drawings, specifications, photographs, ideas, concepts, processes and other engineering and manufacturing information supplied by Buyer or created by Seller arising from performance of the Contract shall be and remain Buyer’s property and shall be treated as confidential information and shall be returned to Buyer upon completion of the Contract or upon demand. Any information which Seller may disclose to Buyer with respect to the design, manufacture or sale or use of the Goods shall be deemed to have been disclosed as part of the consideration for the Contract and Seller shall not assert any claim (other than a claim for patent infringement) against Buyer by reason of Buyer’s use thereof.
  3. Buyer’s Property: Tools. Seller shall insure, and bear the risk of loss of, any property of Buyer in Seller’s possession for performance of the Contract. Whenever special tooling, patents, jigs, dies, or other equipment is used exclusively for the manufacture of items for Buyer, title to such equipment rests with Buyer, whether or not such equipment is invoiced separately or the cost is in the item or items. Seller shall deliver such tooling, patents, jigs, dies and other equipment (or other property of Buyer) to Buyer on demand.
  4. Fair Labor Standard Certificate. Seller hereby certifies that all Goods and Services furnished hereunder shall have been produced in compliance with all applicable requirements of Sections 6, 7 and 12 of the Fair Labor Standards Act of 1938, as amended, and of regulations and orders of the Administrator of the Wage and Hour Division issued under Section 14 thereof, and in accordance with all applicable state and federal laws and regulations governing general conditions for labor employed In the production or provision of such Goods or Services.
  5. Insurance. In the event that Buyer purchases Services to be performed upon Buyer’s premises, Seller shall not begin any such work until public Iiability, workmen’s compensation, property damage and other insurance certificates are furnished to Buyer, showing coverage, liability limits and other insurance provisions satisfactory to Buyer.
  6. Delay. Buyer shall not be liable for any damage as a result of any delay or failure in Buyer’s performance hereunder due to any act of God, act of Seller, embargo or other governmental act, regulation or request, fire, accident, strike, slowdown or other labor difficulties, war, riot, act of terrorism, delay in transportation, defaults of common carriers, inability to obtain necessary labor, materials or manufacturing facilities or, without limiting the foregoing, any other delays beyond the control of Buyer which shall affect its ability to receive and use the Goods or Services. In the event of such delay, the date of delivery shall be extended for a period equal to the time lost because of the delay.

In the event of a delay in delivery or nondelivery by Seller otherwise excusable under Section 402.615 of the Wisconsin Statutes, Seller shall notify Buyer pursuant to Section 402.615(3) of the Wisconsin Statutes.  Seller agrees to meet all of Buyer’s requirements hereunder prior to any allocation among Seller’s customers pursuant to Section 402.615 of the Wisconsin Statutes unless Buyer instead  terminates the Contract under Section 402.616(1)(a) of the Wisconsin Statutes.

  1. Nonwaiver. Failure of Buyer to insist upon strict performance of any of the terms and conditions hereof, or failure or delay to exercise any rights or remedies provided herein or by law or equity or by statute, or to properly notify Seller in the event of breach, or the acceptance of or payment for any items hereunder, or approval of design, shall not release Seller of any of the orders, warranties or obligations of the Contract, and shall not be deemed a waiver of any right of Buyer (to insist upon strict performance hereof or any of its rights or remedies as to any such orders, warranties or obligations, regardless of when shipped, received or accepted, or as to any prior or subsequent default hereunder), nor shall any purported oral modification or rescission of the Contract by Buyer operate as a waiver of any of the terms hereof.
  3. Default by Seller. Buyer may terminate the Contract by reason of the occurrence of any of the following:

(a)           At the option of Buyer, in the event of a material default by Seller, which default is not cured within fifteen (15) days after the date of Seller’s receipt of written notice of such default.

(b)           Immediately, at the option of Buyer and with no prior oral or written notice to Seller, if any warranty or representation made by Seller in the Contract is untrue in any material respect.

(c)           Immediately, with no prior oral or written notice to Seller, (A) upon Seller’s becoming subject to any proceeding or other action under any existing or future law of any jurisdiction relating to bankruptcy, insolvency, reorganization, or relief of debtors, seeking to have an order for relief entered with respect to Seller, or seeking to adjudicate Seller as bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, liquidation, dissolution, composition, or other relief with respect to Seller or Seller’s debts, or seeking appointment of a receiver, trustee, custodian, or other similar official for Seller or for all or any substantial part of Seller’s assets or, should any such proceeding be initiated against Seller, Seller fails to secure the dismissal of the same within sixty (60) days after the initiation of such proceeding; or (B) if Seller is a corporation, the corporation is liquidated or dissolved, or if Seller is a limited liability company, the limited liability company is liquidated or dissolved, or if Seller is a partnership, the partnership terminates under applicable law, or if Seller is a sole proprietor, upon the death of the Seller.

  1. Warranties by Seller. Seller warrants and represents to Buyer (a) that Seller is duly organized, validly existing and in good standing under all applicable statutes, laws, rules, regulations, codes and ordinances; (b) that the Contract has been duly authorized, executed and delivered by Seller and constitutes the legally binding obligation of Seller enforceable against Seller in accordance with its terms except as such enforcement may be limited or denied by bankruptcy, insolvency or similar laws for the relief of debtors generally or by general equitable principles; (c) that neither the execution nor the delivery nor the performance by Seller of this Seller shall violate or conflict with Seller’s charter documents, if any, or any statute, law, rule, regulation, code or ordinance, or any judgment, order or decree, or any agreement, contract or restriction, to which Seller is a party or subject or by which Seller is bound; (d) that Seller possess the skill and resources necessary to provide the Goods and Services in accordance with the Contract; and (e) that Seller possesses and shall, at Seller’s expense, maintain in good standing during the term of the Contract all licenses, permits, authorizations, certifications and approvals, governmental or otherwise, necessary for Seller to perform the Contract.
  1. Incidental and Consequential Damages. In no event shall Buyer be liable for any penalties, special, contingent, punitive, incidental, or consequential losses, damages, costs or expenses.
  2. Indemnification by Seller. To the fullest extent permitted by law, Seller shall indemnify, hold harmless, and defend Buyer and its customers and their respective owners, directors, officers, managers, employees, and agents from and against any and all damages, liabilities, claims, losses, costs and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or resulting in any way from the performance or nonperformance by Seller of the Contract to the extent that such damages, liabilities, claims, losses, costs or expenses are (a) attributable to bodily or personal injury, sickness, disease, or death or to injury to or destruction of property, either real or personal, and (b) caused by the negligent act or omission of Seller, anyone directly or indirectly employed by or contracting with Seller (other than Buyer), or anyone else for whose acts Seller may be legally liable, regardless of whether or not it is caused in part by a party indemnified hereunder.
  3. Seller Insurance. Except to the extent otherwise provided in the Purchase Order:

(a)  Seller shall, at Seller’s expense, maintain the following insurance policies and coverages in full force and effect during the term of the Contract:

  (1)         Workers’ compensation insurance as required by law, including employers’ liability coverage for injury, disease, and death, with coverage limits of not less than One Million Dollars ($1,000,000) per accident and employee.

(2)         Commercial vehicle liability insurance on an occurrence form covering all owned, non-owned, and hired vehicles, with coverage limits of not less than One Million Dollars ($1,000,000) per occurrence for bodily injury and property damage.

(3)         Commercial general liability insurance on an occurrence form, with coverage limits of not less than One Million Dollars ($1,000,000) per occurrence and in the aggregate.

  (4)         Umbrella liability insurance on an occurrence form, with coverage limits of not less than Five Million Dollars ($5,000,000) per occurrence and in the aggregate.

The limits required above may be met with a combination of primary and umbrella liability limits.

(b)  All insurance policies required hereunder shall be written by an insurance carrier(s) with an AM Best Rating of A- or better.  All deductibles and self-insured retentions shall be the responsibility of Seller.

(c)  Seller shall forward to Buyer evidence of all insurance policies of Seller which are described above upon commencement of this Contract and upon any renewal of the above-listed insurance coverage during the term of the Contract.  The certificate(s) shall provide that: (1) Buyer is named as additional insured, and the (2) the insurance carrier shall provide Buyer with not less than thirty (30) days’ written notice prior to cancellation or non-renewal of any required policy.

  1. Notices. Unless otherwise provided elsewhere in the Contract, all written notices, requests, demands, or other communications required or permitted to be given hereunder shall be sufficiently given if delivered by hand delivery, by prepaid overnight delivery service or by certified mail, return receipt requested, postage prepaid, addressed to Buyer or to Seller (at the most current address on record with Buyer or Seller).  Any such notice, request, demand or other communication shall be deemed to be delivered to the intended recipient on the date of personal delivery, or on the first business day following (but excluding) the business day of deposit with the prepaid overnight delivery service or on the third business day after (but excluding) the business day when deposited in the mail.
  2. Severability. Whenever possible, each provision of the Contract shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of the Contract is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of the Contract.
  3. Venue. The parties hereby irrevocably and unconditionally submit to the jurisdiction of the Circuit Court in and for Outagamie County, Wisconsin, or the District Court of the United States of America for the Eastern District of Wisconsin, Green Bay Division, in Green Bay, Wisconsin, and agree that any legal action or proceeding relating to the Contract shall be brought exclusively in such courts.
  4. Survival. All terms and conditions of the Contract allocating liability between the Seller and Buyer, or addressing indemnification, dispute resolution, governing law or venue, shall survive the provision of the Goods or completion of the Services hereunder and the cancellation, termination or expiration of the Contract.
  5. Counterparts. The Contract may be executed in one (1) or more counterparts, each of which shall be deemed to be an original and all of which, when taken together, shall be deemed to constituted one (1) and the same instrument, and any of the parties hereto may execute the Contract by signing any such counterpart.  Any party may deliver its signature via facsimile or e-mail (in the form of a PDF or otherwise), and any signature so delivered shall be binding on the delivering party.  If any document issued by any party hereto is sent by facsimile or another form of electronic document transmission, the parties hereto agree that (a) the copy of any such document printed on the facsimile machine or printer of the recipient thereof is a counterpart original copy thereof and is a “writing”, (b) delivery of any such document to the recipient thereof by facsimile or such other form of electronic document transmission is authorized by the recipient thereof and is legally sufficient for all purposes as if delivered by United States mail, (c) the name of an authorized agent of the party sending such document on any such document is sufficient as a signature thereon on behalf of such party and the intent of such signature is to authenticate the writing, and (d) an electronically stored and reproduced copy of any such document shall be deemed to be legally sufficient evidence of the terms of such document for all purposes.
  6. Entire Contract. The  Contract constitutes the entire and final agreement between the parties with respect to the subject matter of the Contract and supersedes any other agreements or offers, including any purchase order or order acknowledgement or confirmation of Seller, prior or contemporaneous oral or written understandings or communications relating to the subject matter hereof.  All captions and headings contained herein are for the convenience of the parties hereto and shall not be deemed or construed as in any way limiting or extending the language of the provisions to which such captions and headings refer.  Any modifications of the Contract must be in writing and signed by both parties.  The Contract binds and benefits the parties and, subject to Section 15 of these Terms and Conditions, their respective successors and assigns.
  7. Subcontracting. Seller shall not subcontract for any of the Goods or Services without the prior written consent of Buyer, which consent may be granted or withheld by Buyer in Buyer’s sole and absolute discretion.  As a condition to granting consent, Buyer may require that Seller cause the subcontractor to be bound to Buyer and its customers to the same extent as Seller is so bound under the Contract.
  8. Setoff. Seller agrees that Buyer shall have the right to set off against any amounts which may become payable by Buyer to Seller under the Contract any amounts which Seller may owe to Buyer under the Contract.
  10. Dispute Resolution Process. Any claim or dispute arising from, out of, or relating to the Contract shall be resolved only by the sequential methods of the Dispute Resolution Process (as defined below); provided, however, that a party may, at any time, seek equitable relief from the designated court(s) to prevent immediate or irreparable harm to the party without having to commence, continue, or follow the Dispute Resolution Process.

The term “Dispute Resolution Process” shall be defined as follows: (a)  first, the parties shall meet at a mutually agreed time(s) and location(s) to attempt to resolve in good faith any claim or dispute, after a party’s prior written negotiation request; (b)  second, if the matter is not resolved within sixty (60) days after the request, then, on a party’s written request, the parties shall enter into non-binding mediation to be conducted at a mutually agreed time(s) and location(s), using a neutral mediator having experience with the applicable industry; and (c)  finally, as a last resort, but subject to Section 39 of these Terms and Conditions, either party may commence litigation.

Any and all negotiations shall be confidential and shall be treated as settlement negotiations, and shall be conducted in English, and all documents, including the Contract, shall be written in English.  Each party shall bear its own costs and expenses in the Dispute Resolution Process.

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