PO Terms

EXCEPT AS MAY OTHERWISE BE PROVIDED ON THE PURCHASE ORDER, THE PARTIES AGREE THAT THE FOLLOWING PROVISIONS SHALL COVER THE TRANSACTION HEREIN CONTEMPLATED:

1. ACCEPTANCE AND MODIFICATION
This purchase order can be accepted only upon the terms and conditions expressed herein, which may not be modified, amended or waived except by the express written consent of an agent of Fourinox.  Objection is hereby given to any additional or different terms or conditions, whether or not material, contained in any acknowledgment or confirmation of this order.  This order and all of the provisions herein contained shall be deemed accepted by vendor upon commencing performance or by any other means which reasonably manifests vendor's assent to be bound by the provisions hereof.

2. ASSIGNMENT
Vendor may neither assign this order nor delegate performance hereunder without Fourinox's prior written approval.

3. PERFORMANCE
Time is of the essence of this order, and performance must actually be completed within the time stated on the purchase order.  In the event of vendor's delay in performance or failure to perform, Fourinox reserves the right, in addition to all other rights provided by law, to cancel this order immediately upon giving notice and hold vendor liable for any excess cost involved plus all other allowable damages.  Neither vendor nor Fourinox shall be liable for delay in performance or failure to perform if such delay or failure is caused by an occurrence or contingency beyond the reasonable control of the affected party, which by the exercise of due diligence such party would be unable to overcome, or by compliance in good faith with any applicable foreign or domestic governmental requirement.  Quantities affected by any such delay or failure may be deleted from this order.  Vendor shall deliver all goods to and perform all services at the premises designated on the purchase order, and all prices stated herein shall be for such delivery or performance, free of all other costs and expenses.  Fourinox may inspect all goods provided and all services performed hereunder prior to being obligated to make payment, whether partial, full or final, on account thereof. Vendor agrees to sell or otherwise make available to Fourinox spare and replacement parts and component systems for each item of equipment or other goods to be provided hereunder on commercially reasonable terms and conditions throughout the entire reasonable life expectancy of each such item.

4. WARRANTY
Acceptance of this order constitutes an express warranty by vendor that (a) with respect to all goods to be provided hereunder vendor has, or at the time of performance shall have, and shall transmit to Fourinox good and marketable title thereto, free and clear of all liens and encumbrances of any kind whatsoever, (b) all goods or services provided or to be provided hereunder shall be performed in a good and workmanlike manner and in accordance with sound generally accepted practices, involve no unreasonable risk or injury or damage and is in compliance with the standards and regulations under the Occupational Safety and Health Act (OSHA), conform to all applicable specifications and governmental requirements, and be without fault and free from all defects and (c) all goods to be provided hereunder shall be merchantable, fit for the purpose intended and of first quality, involve no unreasonable risk or injury or damage when used as intended, conform to all applicable specifications and samples and be free from all defects in design, materials and workmanship.  Fourinox may accept or reject any and all goods or services which are in breach of this provision and, in any event, hold vendor liable for all damages resulting from such breach.

5. CONFIDENTIALITY
Vendor, on behalf of itself, its employees and agents, agrees that any ideas, concepts, information or processes (collectively referred to as "information") acquired from Fourinox or created by vendor arising from performance of this order are the property of Fourinox and shall be kept in confidence by vendor and shall neither be disclosed nor used by vendor except as is necessary for the proper performance of this order, unless the information is or becomes legally available to the general public.  Vendor may disclose information to third persons to the extent required for proper performance of this order, but only under the same obligations relating to use and disclosure undertaken by vendor herein.

6. SAFETY
Vendor agrees to observe all safety and security rules, instructions and requests of Fourinox whenever in its performance hereunder vendor or its employees or agents enter upon any Fourinox location.  If the goods provided or to be provided or the services performed or to be performed hereunder involve or may involve any risk of injury or death to persons or damage to property, vendor, shall provide Fourinox with a written description of the nature and extent of any such risk, including a description of any precautions which should be taken to minimize the risk of death, injury or damage occurring and to minimize the injury, damage or loss in the event of any such occurrence.

7. INDEMNIFICATION
Vendor shall indemnify and hold harmless Fourinox, its agents and employees, from and against all claims, damages, losses and expenses, including attorneys' fees, arising out of or resulting from all goods provided and all services performed hereunder, provided that any such claim, damage, loss or expense is caused in whole or in party by breach of this order or by a negligent, reckless or intentional act or omission of vendor, its agents, employees or subcontractors.  The obligations of vendor hereunder shall not extend to any liability with respect to or arising out of any claim, damage, loss or expense which is attributable to an act or omission of Fourinox, its agents or employees.

8. PATENT INDEMNITY
Vendor shall indemnify and save harmless Fourinox, its agents, and employees from all claims, demands, suits, costs, expenses (including attorneys' fees), damages, losses, liabilities and judgments arising out of an infringement or alleged infringement of any United States patent or copyright or any other proprietary right affecting the goods or services covered by this order.  Fourinox must give vendor prompt notice of such infringement or alleged infringement, and upon the giving of such notice vendor may, if it so elects, and shall, if requested by Fourinox, enter and defend, settle or otherwise terminate such claim, demand or suit.

9. CANCELLATION
Either party hereto may cancel this order in the event that the other shall fail to perform or observe any term or condition hereof by giving the other ten (10) days written notice of cancellation, during which time the other may completely cure its default and thereby prevent a cancellation hereof.  Cancellation hereunder shall not prevent the non-defaulting party from utilizing any other remedy available by law or from seeking such damages to which it may be entitled under law.

10. INSURANCE
On all work to be performed hereunder on any site including construction location by vendor or its employees or agents, vendor shall carry at its sole expense in form satisfactory to Fourinox:

(a) Worker's Compensation Insurance providing statutory benefits  covering such employees;

(b) Employer's Liability Insurance with a limit of at least $500,000 for one or more claims arising from each occurrence; and

(c) Comprehensive General Liability Insurance, including Products-Completed Operations and Blanket Contractual Liability, and, for vehicles utilized by vendor for such work.  Comprehensive Automobile Liability Insurance, each type of insurance with a single limit of at least $1,000,000 for injury to one or more persons arising from each occurrence and $1,000,000 for property damage arising from each occurrence, or such larger amounts and such additional coverage as Fourinox may reasonably request: Certificates evidencing the above coverage with 30 day amendment and cancellation notice clauses shall be submitted to the appropriate Fourinox purchasing agent prior to vendor commencing such work.

11. SHIPMENT INSTRUCTIONS
Each shipment hereunder shall be covered by a separate itemized invoice showing the date of shipment and all other relevant information.  At the time of each shipment vendor shall mail such itemized invoice directly to the accounts payable division at the location specified on the purchase order and vendor shall forward with each shipment a shipping memorandum (stating order number, describing the transaction and providing all other relevant information), a bill of lading and on foreign shipments all requisite import documents.  Partial shipments must be identified as such on shipping memoranda and invoices and be marked "partial".  Completed shipments must be marked thereon as "final".  Freight is included in the price unless otherwise agreed to in writing.

12. COMPETITIVE OFFERS
At any time Fourinox may notify vendor that it has received a bona fide offer to deliver similar goods in approximately the same quantity as the undelivered portion hereunder at a lower price than that which is then in effect under this order.  If within fifteen (15) days of its receipt of such notice vendor shall not reduce its price hereunder sufficiently to meet the terms of such offer and advise Fourinox of such reduction, Fourinox may purchase any or all of the undelivered portion of goods or services hereunder from such offer.  All quantities so purchased shall be deleted from this order.

If at any time during the duration of this order, vendor sells or offers to sell comparable quantities of similar grades of products as the goods to be provided hereunder at a price lower than vendor's price to Fourinox then in effect or upon other terms and conditions more favorable to buyers then the terms and conditions hereof.  Vendor shall promptly notify Fourinox thereof and offer such lower price or such other more favorable terms and conditions to Fourinox during the period in which such lower price or such other more favorable terms and conditions are in effect.

13. TAXES
All sales and use taxes resulting from or applicable to this order shall be paid by the party required by law to collect and pay such taxes, but if such party shall be vendor and such taxes shall not have been included in the price hereunder, Fourinox shall reimburse vendor the amount of such taxes (not including interest or penalties).  Vendor agrees to cooperate with Fourinox in opposing the imposition of any tax, the legality of which is questioned by Fourinox, on any goods provided or services performed hereunder and in securing any abatement of refund thereof sought by Fourinox.

14. INSOLVENCY
If reasonable grounds for insecurity as to the solvency of either party arise, if either party shall liquidate or wind up all or a material portion of its business, dissolve or terminate its existence, become insolvent, be unable to pay its debts as they mature, commit any act of bankruptcy, make an arrangement, composition or assignment for the benefit of creditors, have filed against it or consent to the filing of any petition in bankruptcy for liquidation or reorganization or otherwise be the subject of insolvency proceedings of any kind or nature, if a receiver or trustee is appointed of or for any of either party's property or business, or if either party shall be levied or garnished upon on account of any alleged sum it owes to the other, then the non-defaulting party may cancel this order immediately upon giving notice.

15. LIENS
Vendor shall immediately satisfy any lien or encumbrances which because of any act or omission of vendor is filed, or threatened to be filed, against the goods to be provided hereunder or against any property of Fourinox and vendor shall save Fourinox harmless from all resulting loss and expense, including attorney's fees.  Fourinox, may in its absolute discretion, deduct from any sums owing vendor under this order any amount necessary to satisfy any such lien or encumbrance and/or any such resulting loss and expense.

16. PAYMENTS
If more than one payment is required to be made hereunder, Fourinox may, in its absolute discretion, retain up to 10% of any or all payments until completion of the performance due hereunder, at which time the retained sums, less any sums deducted from the total as a set off or recoupment, will be paid to vendor.

17. INTERPRETATION
The laws of the state of Wisconsin where the Fourinox location is situated, including, when applicable, the Uniform Commercial Code, shall govern all matters relating to this order as to formation of obligation, interpretation and performance.

CUSTOM FABRICATIONS

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