NEAPOLITAN LLC PURCHASE ORDER TERMS AND CONDITIONS
(1) ACCEPTANCE. This Purchase Order (“Order”) constitutes the offer of NEAPOLITAN LLC, an Illinois limited liability company (“Buyer”) to Supplier (as identified on this Order) and becomes a binding contract when accepted by acknowledgement, including but not limited to Supplier sending an invoice to Buyer, or commencement of performance by Supplier. Any Buyer Order is an offer subject to and expressly conditioned upon Supplier’s assent to these Terms and Conditions and any terms included on Buyer’s Order, whether assent is in writing or by conduct. Acknowledgement of Buyer’s Order or delivery of products to Buyer shall constitute such assent. Buyer rejects all additional or different terms and conditions. In the event of any inconsistency between these Terms and Conditions of this Order, the terms of herein shall control.
(2) CHANGES. Buyer shall have the right at any time to make changes in the scope or quantity of the goods or services covered by this Order, and in other terms hereof by written notice to Supplier, and Supplier agrees to comply with such changes for which an equitable adjustment will be made to any price, time of performance, and other provisions of this Order, if appropriate. Claims for such an adjustment must be made within (15) calendar days from date of receipt by Supplier of notice of the change. Substitutions or changes in quantities or specifications by Supplier shall not be made without Buyer’s prior written approval.
(3) PRICES, INVOICES AND PAYMENT.
a. Unless another currency is specified on the Order, all monetary amounts are deemed to be expressed in U.S. dollars. Unless otherwise specified, prices include all charges for packing, hauling, storage, transportation to the point of delivery, and taxes. If this Order is not priced, it shall not be filled at prices higher than those last quoted and charged Buyer for the same articles. Supplier warrants that the prices quoted in this Order are no greater than those currently charged to any other buyer for similar quantities of goods.
b. Supplier agrees to issue invoices referencing the Order number contained herein, item number, description of the items, sizes, quantities, unit prices and extended totals. If an Order contains more than one item, Supplier’s invoice will make the proper reference. Taxes, if any, which are to be collected by the Supplier, shall be stated separately on the invoice and shall be remitted by Supplier to the appropriate taxing authority. All invoices shall comply with the requirements of each relevant taxing authority and shall contain data and registration numbers that will enable Buyer to obtain appropriate credit for any taxes charged.
c. As full consideration for Supplier’s satisfactory provision of the products or performance of the services, Buyer will make payment on invoices rendered by Supplier thirty (30) days from the latter of the date of Supplier’s invoice or delivery of the goods, without regard to other goods deliveries/services performed; provided, that a two percent (2%) discount shall be applied to such balance if payment is made within thirty (30) days of the latter of the date of Supplier’s invoice or delivery of the goods. Buyer shall receive invoices within three (3) business days of the invoice date.
(4) DELIVERY; MANUFACTURING.
- All shipments are made FOB Buyer’s facility at 715 Elm Street, Winnetka, Illinois 60093 USA. Title and risk of loss or damage to products shall pass to Buyer at the place of delivery.
b. All products shall be delivered on the date specified in the Supplier’s Order acknowledgement. Unless specified in the Order, Supplier may not make deliveries in installments without Buyer’s prior written consent, which may be granted or withheld in Buyer’s sole discretion. Delivery delay or default of any agreed installment shall relieve Buyer of its obligation to accept and pay for remaining deliveries.
c. Shipment or delivery of goods shall be in accordance with the schedule specified in this Order. If Supplier does not, or it appears that Supplier will not, meet such schedule, Buyer may, in addition to any other rights or remedies provided by law or this Order, require that Supplier ship the goods via expedited routing to meet the specified schedule or to recover the time lost, and Supplier shall pay the difference in shipping costs.
d. Supplier shall be responsible for providing adequate packaging, tagging, labeling, packing, shipping and billing, and Supplier shall comply with all related requirements reasonably requested by Buyer or established by applicable laws, regulations, carrier tariffs and classifications. Supplier shall ship all products in accordance with Buyer’s requirements.
e. The parties’ obligations shall be temporarily suspended in the event of external delays beyond the obligated party’s reasonable control, which shall mean an event of war, act of terrorism, riot, explosion, fire, flood, earthquake, act of God, strike, lockout, labor trouble, freight embargoes, breakage of equipment, delay by carriers, accident or act of governmental authority (“Force Majeure”), and any failure to perform by that party as a result of any such interference or interruption shall not be deemed default. Performance may be suspended for the period of any such delay. The party whose performance is suspended shall provide written notice to the other party specifying the Force Majeure event and if known the expected duration, as soon as reasonably possible and in any event within five (5) days of such suspension. If any Force Majeure event is anticipated to or does delay Supplier’s performance for more than thirty (30) days, Buyer may terminate any unfulfilled portion of this Order without any further liability. If Buyer is subject to a Force Majeure event and is unable to wholly or partially perform its obligations (other than payment of money for prior performance by Supplier), Buyer may terminate any Order without any further liability to Supplier.
f. Without advance notice but during regular business hours, Buyer, its representatives and any inspectors approved by Buyer may inspect any facilities at which any products or components for products are being produced (including any facilities of Supplier, its subcontractors and suppliers) and any and all products at any stage of production.
a. Products. Supplier expressly represents and warrants that (i) all products and services provided under this Order shall be merchantable, free from defects in design, material and workmanship, of the highest quality, and shall conform to the terms and conditions of all applicable schedules or specifications, drawings, and industry standards; (ii) such products and services are free of any condition that would pose a potential safety hazard and are fit and safe for the purpose intended by Buyer; (iii) the products provided under this Order are wholly new and contain new materials throughout; (iv) Supplier has good and warrantable title to the products, free and clear of any liens, encumbrances or other restrictions on distribution; (v) after reasonable investigation Supplier has no knowledge that the products infringe, misappropriate, or otherwise make unauthorized use of any intellectual property rights of any third party; (vi) the products are appropriately labeled and packaged; and (vii) the performance of Supplier under this Order does not violate any provision of any governing document of Supplier and has been duly authorized by all necessary partnership or corporate action. In addition to the foregoing warranties, Supplier provides and Buyer is entitled to all warranties that arise by implication or operation of law, and Supplier shall extend all warranties it receives from its vendors to Buyer. All warranties run to Buyer, and through Buyer, to its customers. All warranties survive any inspection, acceptance, payment, or resale by Buyer. The return of any products shall in no way relieve Supplier from liability with respect to warranties express or implied, or for failure to ship satisfactory products under the Order.
b. Legal Compliance. Supplier, on behalf of itself and its supply chain, warrants that all products and services supplied pursuant to this Order will have been performed, produced and supplied in compliance with all applicable federal, state and local laws, orders, rules and regulations, including but not limited to applicable rules and regulations of the U.S. Federal Communication Commission; the U.S. Occupational Safety and Health Administration and all applicable jurisdictions’ rules and regulation concerning freedom of association, wages and working hours, safety and health, anti-discrimination, child labor and humane treatment of workers. Supplier shall have an affirmative duty to immediately correct any non-compliance and fully defend and indemnify Buyer against any liability for damages caused by any non-compliance with this provision.
(6) LIABILITY AND INDEMNIFICATION.
a. Notwithstanding anything else in the purchase order or otherwise, Buyer will not be liable to Supplier with respect to the subject matter of the Order under any contract, negligence, strict liability or other legal or equitable theory for any amounts in excess in the amount Buyer paid to Supplier in the six (6) months preceding the event or circumstance giving rise to such liability.
b. In no event will Buyer be liable to Supplier for any incidental, indirect, special, consequential damages or loss of profits arising out of, or in connection with, the Order, whether or not Buyer was advised of the possibility of such damage.
c. The limitations will apply notwithstanding any failure of essential purpose of any limited remedy provided herein. Nothing in the Order limits either party’s liability for bodily injury of a person, death, or physical damage to property or any liability which cannot be excluded under applicable law.
d. Supplier shall defend, indemnify and hold Buyer, its successors, assigns, employees, customers, and users of the goods harmless with respect to all claims, liability, damage, loss, and expenses, including attorney’s fees, incurred relating to or caused by:
1. actual or alleged defect in the design, manufacture, or material of the goods;
2. actual or alleged breach of warranty;
3. failure of Supplier to deliver the goods on a timely basis; or
4. failure of the goods to meet legal requirements.
(7) INTELLECTUAL PROPERTY. Supplier agrees to defend, at its expense, any suit against Buyer based upon a claim that any product furnished by Supplier to Buyer hereunder directly infringes any intellectual property of any third party, and to pay costs and damages finally awarded in any such suit. If the sale of a product furnished hereunder is enjoined as a result of such suit, Supplier, at its option and at no expense to Buyer, shall obtain for Buyer the right to use and sell the products, or shall substitute an equivalent thereof acceptable to Buyer and extend this indemnity thereto, or shall accept the return of such products from Buyer’s inventory and reimburse Buyer the purchase price therefor. This indemnity does not extend to any suit based upon alleged infringement arising out of compliance with Buyer-furnished specifications, designs, or instructions or use of Buyer-furnished components.
Unless superseded by a separate, written license agreement between the parties, Supplier grants Buyer a perpetual, irrevocable, worldwide, nonexclusive, fully paid-up license, with right of sublicense, under Supplier’s intellectual property rights to advertise the products supplied hereunder, including on the internet, and in connection therewith to use images of the products and any associated logos or trademarks for the purposes of promoting the sale of the products by Buyer to its customers, which right will survive any termination of this Order. These covenants will be binding on Supplier’s successors in interest to, all transferees or assignees of and any exclusive licensee of any Supplier’s intellectual property rights. No license under any Buyer intellectual property rights, including any license to use, exercise, or incorporate any Buyer intellectual property rights in the products or any other specifications or other materials furnished to Supplier is conveyed to Supplier by Buyer, unless expressly conveyed in an agreement executed by Supplier and Buyer.
(9) CONFIDENTIAL INFORMATION. To the extent that protection of information or materials to be transferred hereunder is covered by an existing confidentiality agreement or other written agreement governing the treatment of Confidential Information, such existing agreement shall apply. Confidential Information means confidential or proprietary data or information disclosed by Buyer to Supplier in connection with this Order in oral or in written, graphic, machine recognizable, electronic, sample, or any other visually perceptible form. By way of example, pricing data, product specifications, prototypes, designs, and samples, quality and manufacturing procedures and requirements, Buyer’s customer information, and the existence of this Order, and its terms and conditions are Confidential Information. In addition, all Buyer information regarding product cost or price information, demand or volume information or financial projections shall be deemed Buyer Confidential Information. Supplier will: (i) maintain the confidentiality of Buyer’s Confidential Information and not disclose it to any third party; (ii) restrict disclosure of Confidential Information only to its employees, contract employees and third party contractors who have a “need to know” in order for the party to perform its obligations and exercise its rights under this Order, and who are bound to maintain the confidentiality of the Confidential Information by terms of nondisclosure no less restrictive than those contained herein; (iii) handle Confidential Information with the highest degree of care; (iv) use Confidential Information only for the purpose of performing its obligations under this Order; and (v) promptly notify Buyer upon discovery of any unauthorized use or disclosure of the Confidential Information and take all necessary steps to regain possession of the Confidential Information and prevent further unauthorized actions. Confidential Information is and at all times will remain the property of Buyer. No use of any Confidential Information is permitted except as expressly provided herein, and no grant under any proprietary rights is hereby given or intended, including any license implied or otherwise. Upon receipt of Buyer’s written request, Supplier will return to Buyer all Confidential Information disclosed by Buyer, along with all copies and portions thereof. Supplier’s obligation to keep confidential and restrict the use of Buyer’s Confidential Information will survive five (5) years from the termination of this Order.
(10) TERMINATION. Buyer may cancel an individual Order by giving Supplier notice of such cancellation, which notice must be received by Supplier at least five (5) or more days prior to the scheduled shipping date of such Order, otherwise Buyer will be responsible for a cancellation charge equal to Supplier’s incurred and committed costs. The terms and warranties contained herein that by their sense and context are intended to survive the performance thereof by either or both parties, including, without limitation, paragraphs 5, 6, 7, 8 and 9, shall so survive the completion of performances and/or cancellation of any Order, including the making of any and all payments due.
(11) INSPECTION. Goods purchased under this Order are subject to Buyer’s reasonable inspection and approval at Buyer’s destination. Buyer reserves the right to reject and refuse acceptance of goods which are not in accordance with this Order or Supplier’s representation or warranties, expressed or implied. Rejected goods may be returned to Supplier, or held by Buyer, at Supplier’s risk and expense. Payment for any goods under this Order shall not be deemed acceptance of the goods.
(12) RECALL. If a recall of the goods is necessitated by a defect, failure to conform to the satisfactions, applicable laws, or any other reason within Supplier’s control, Supplier shall bear all costs and expenses of such recall, including without limitation, costs of notifying customers, customer refunds, costs of returning goods, lost profits, and other expenses incurred to meet obligations to third parties.
(13) ASSIGNMENT AND SUBCONTRACTING.
a. Supplier may not assign any rights or delegate any of its obligations under the Order without Buyer’s prior written consent in its sole discretion. Buyer may, at its option, void any attempted assignment or delegation undertaken without Buyer’s prior written consent.
b. Supplier may not subcontract any of its rights or obligations under the Order without Buyer’s prior written consent in its sole discretion. If Buyer consents to the use of a Subcontractor, Supplier will: (i) guarantee and will remain liable for the performance of all subcontracted obligations; (ii) indemnify Buyer for all damages and costs of any kind incurred by Buyer or any third party and caused by the acts and omissions of Supplier’s Subcontractors; and (iii) make all payments to its Subcontractors. If Supplier fails to timely pay a Subcontractor for work performed, Buyer will have the right, but not the obligation, to pay the Subcontractor and offset any amount due to Supplier by any amount paid to the Subcontractor. Supplier will defend, indemnify and hold Buyer harmless for all damages and costs of any kind, without limitation, incurred by Buyer and caused by Supplier’s failure to pay a Subcontractor.
(14) INSURANCE. Supplier shall obtain and keep in force for three (3) years after the last delivery under this Order, general comprehensive liability insurance covering each occurrence of bodily injury and property damage in the amount of not less than US$1 Million combined single limit with special endorsements providing coverage for:
1. Products and Completed Operations Liability;
2. Blanket Broad Form Vendor’s Liability; and
3. Blanket Contractual Liability.
a. Buyer and Supplier agree that these Terms and Conditions of Sale and any terms included in any written agreement between Buyer and Supplier with respect to the purchase of products are the exclusive statement of the terms of the agreement between the parties and supersede all other communications between the parties, oral or written, relating to the subject matter hereof.
b. No modification hereto shall be effective unless agreed upon in writing by both parties.
c. The failure of either party to insist in any one or more instances upon the performance of any of the terms, covenants, or conditions in these Terms and Conditions or to exercise any right under these Terms and Conditions, shall not be construed as a waiver or relinquishment of any such right.
e. No right, interest or obligation in these Terms and Conditions of Sale may be assigned or delegated by either party without the written permission of the other party. These Terms and Conditions of Sale are binding upon and shall inure to the benefit of the parties and their respective successors.
f. If any provision of these Terms and Conditions is contrary to, prohibited by or held invalid by any law, rule, order or regulation of any government or by the final determination of any State or Federal court, such invalidity shall not affect the enforceability of any other provisions not held to be invalid.
g. These Terms and Conditions shall be governed and interpreted in accordance with the laws of the State of Illinois, without reference to principles of choice and conflicts of laws.
h. If any dispute arises relating to this Order or the parties’ obligations or rights hereunder, either party may demand in writing that the dispute be arbitrated, in which case each party agrees immediately to stay any court proceedings and to submit the dispute to binding arbitration by a single arbitrator under the Commercial Arbitration Rules of the American Arbitration Association then in effect, in Chicago, Illinois. If for any reason the AAA cannot hear the dispute, the parties agree to proceed before any mutually-agreed arbitrator or, if unable to agree, before an arbitrator appointed by the Circuit Court of Cook County, Illinois. Each party shall be entitled to one substitution of arbitrator, without cause, as a matter of right. For any dispute (or part of a dispute) not subject to arbitration, the parties WAIVE ANY RIGHT TO A TRIAL BY JURY and agree to have such matter tried by a court without a jury. The arbitrator’s award shall be final and binding on all parties. Either party may enter judgment on the award in any court. If a party is required to enforce this Order in court, the prevailing party in such proceeding shall be entitled to its attorneys’ fees and costs incurred in doing so. The parties agree that the arbitrability of this Order shall be governed by the Federal Arbitration Act, 9 U.S.C. §1 et seq. The parties further agree that if any provisions of this Order are found to be invalid, the remainder will remain in full force and effect, and agree that these provisions shall be binding upon the parties hereto and their respective heirs, representatives, employees, affiliates, successors, and assigns.
i. Supplier further agrees that in consideration for Buyer's Order, the Supplier consents to personal jurisdiction in Illinois and of AAA and/or a court of competent jurisdiction in Cook County, Illinois and consents that proper and legal personal service to initiate any such legal proceedings before AAA or a court in Cook County, Illinois may be made on Supplier by serving Supplier a copy of any such demand for arbitration or summons and complaint at the address provided to Buyer by Supplier for place of payment, the address on Supplier's invoice, or any address listed by any governmental agency for Supplier.