THE BRAUN CORPORATION
STANDARD PURCHASE ORDER
TERMS AND CONDITIONS
1. Definitions. As used herein, "Braun" means "The Braun Corporation," who is the buyer of the Products and materials referenced herein and is the party authorized to alter, modify or change provisions of the Order (defined herein); "Seller" means the party identified on the Order as the seller of the Products; "Order" means the purchase order between Braun and the Seller which incorporates these Terms and Conditions, including all documents, exhibits and attachments referenced herein and in the Order; and "Products" means the goods identified on the Order.
2. CONTROLLING TERMS. THESE TERMS AND CONDITIONS CONTROL, AND ANY DIFFERENT OR ADDITIONAL TERMS AND CONDITIONS CONTAINED IN ANY OTHER WRITING OF THE SELLER ARE HEREBY REJECTED BY BRAUN AND SHALL NOT IN ANY WAY BE INCORPORATED INTO THE AGREEMENT BETWEEN THE PARTIES, UNLESS SPECIFICALLY AGREED TO IN WRITING BY BRAUN.
3. Delivery. Time is of the essence in the performance of the Order. Seller shall make deliveries at such times and places and of such items and quantities as specified by Braun. Strict adherence to Braun's stated delivery schedule is a material condition of the Order. Unless otherwise provided on the Order, the Products shall be delivered to Braun FOB Braun's facility at the address specified on the Order. Title to the Products shall pass to Braun upon delivery of such Products at such facility or, if otherwise identified in the Order, at Braun's designated point of delivery. Seller shall be responsible for all risk of loss or damage until such passage of title. If at any time it appears to Seller that any delivery schedule cannot be met, Seller shall notify Braun as soon as possible as to the causes thereof, the action being taken to mitigate such cause of non-delivery, and when delivery will be made. Seller shall, at its expense, take whatever reasonable action is necessary, with or without Braun's request, to meet such delivery schedules as set forth herein or to recover to the maximum extent possible any delay in meeting such delivery schedules. Notwithstanding such notice or mitigation by Seller, unless the delivery schedule is modified or waived by a Braun’s Authorized Representative, Seller shall continue to bear the risk of any failure to meet the delivery schedule on a timely basis as provided herein.
4. Costs of Freight. Unless the Order designates that the price for the Product shall include the costs of freight, Braun will designate the carrier to be utilized by Seller and shall bear the cost of freight of the Product to Braun’s designated point of delivery. If the Order designates that the Seller is responsible for costs of freight, the Seller shall separately itemize its cost of freight and shall have responsibility for and bear the risk of selection of the carrier.
5. Quality and Conformance to Specifications. Supplier warrants that all Products or materials will conform to the specifications, representations, or descriptions specified in the Order, will be merchantable, and will be of quality material and workmanship, free from defect and fit for the purpose specified by Braun. In addition, Supplier acknowledges that Supplier is aware of Braun's intended use and expressly warrants that all Products which have been selected, manufactured, or assembled by Supplier, based upon Braun's stated use, will be fit and sufficient for the particular purposes intended by Braun. Braun may reject and hold at Supplier's risk and expense, Products which do not conform to applicable specifications or descriptions or which are defective in material, workmanship or otherwise fail to meet the warranties for the Products. To the extent Braun rejects Products as non-conforming, the quantities of such Products under the Order will automatically be reduced by the number of non-conforming items unless Braun notifies Supplier in writing otherwise. Braun is not responsible for payment to Supplier for rejected non-conforming Products. Moreover, payment by Braun for non-conforming Products shall not constitute an acceptance thereof, limit or impair Braun's right to assert any legal or equitable remedy, or relieve Supplier's responsibility for latent defects. Without limiting any other rights Braun may have, Braun may, upon rejection and at its option, require Supplier: (i) to repair or replace at Supplier's expense any Products or items which fail to meet the requirements of applicable specifications or descriptions or other requirements of the Order; or (ii) to refund the price that may have been paid by Braun for any such Products. In addition and without limiting any other remedy available to Braun, the costs incurred by Braun (including without limitation costs for re-working any of Braun’s vehicles, lifts or other products for which the Product was to be used or installed and for any production line stoppages) caused by any non-conformance of the Product shall be deemed to be a reasonably foreseeable consequential damage which is recoverable by Braun and for which Supplier shall be responsible.
6. Cause Analysis and Dispute Resolution. In the event of any re-working or production line stoppages which Braun believes may have been caused in whole or in part by a non-conforming Product, Braun shall notify Seller promptly of the initiation of the cause-analysis process contemplated by this Section. Promptly after the delivery of such notice, Braun and the Seller (together with any other suppliers which have supplied parts or other items which Braun has identified as having caused or contributed to such re-working or stoppage) shall cooperate as reasonably required to identify the cause of such re-working or stoppage and the proportionate contribution thereto by the Seller and such other suppliers, if any. Braun and the Seller shall cause their respective appropriate managers, engineers and other personnel reasonably required to complete such cause-analysis to participate in such process. The Seller shall bear the costs of such process in proportion to which its non-conforming Product contributed to such re-working or stoppage. Any dispute as to such cause which cannot be resolved by such persons shall be submitted to Braun’s Authorized Representative and an officer or equivalent level representative of Seller with authority to resolve such dispute, who shall act promptly and in good faith to resolve such dispute. If such dispute cannot be resolved within a reasonable time, either party may give notice that the dispute process is terminated. In such event, either party shall be entitled to pursue any remedy available to such party.
7. Recall. Notwithstanding anything to the contrary in this Agreement, Seller shall indemnify Braun against any and all recall actions necessary to be taken due to a recall of Seller’s Product, either voluntarily or pursuant to the recommendation or direction of any state, federal or local agency. In the event Braun or Seller elect, either voluntarily or pursuant to recommendations or direction of any governing authority to recall any Product, such recall will be at the sole responsibility of Seller provided, however, that Seller shall not be responsible for recall actions and/or costs related to recalls where the issue relates solely to the Braun’s design. Braun will cooperate in making available records and other information as are reasonably necessary to enable Seller to affect such recall. Seller shall perform, at its sole expense, all necessary repairs or modifications of recalled Product, except to any extent Seller and Braun agree to the performance of such repairs by Braun upon mutually acceptable terms or such repairs are due to Braun’s design, in which event, Braun shall bear such expense.
8. Tooling and Drawings. If the Order indicates that these Terms and Conditions shall govern tooling and drawings, then the provisions of this Section shall be in effect. Unless otherwise agreed in a writing signed by Braun’s Authorized Representative, Braun owns all tooling, molds, jigs, kits, and similar tangible items (collectively, “Tooling”), all drawings, designs, prints, plans, specifications, and concepts (collectively, “Drawings”) and all variations, improvements, enhancements, modifications, re-designs, derivatives, and reformats of the Tooling or the Drawings which Braun has supplied to Seller, either directly or through reimbursement, for use in connection with the production, assembly or manufacture of the Product, whether or not in the possession or control of Seller. All Tooling and Drawings shall be used exclusively for Braun. In the event that Seller has contributed to any such item in any way, Seller shall be deemed to have assigned and transferred all right and interest therein to Braun in consideration of the Order and shall execute and deliver, and shall cause any of its employees, representatives or agents to execute and deliver, for no further consideration, such assignments or other documents as Braun may request to evidence and confirm such assignment and transfer. If Seller has purchased any of the Tooling or the Drawings, then upon request from Braun, Seller shall execute and deliver such bills of sale or other instruments as Braun may request to transfer to Braun all right, title and interest therein free and clear of all liens or claims of any other person. All such Tooling and Drawings shall be properly stored, used, maintained and repaired by Seller at its expense, shall be marked and identified as the personal property of Braun, shall not be subjected to any liens by the Seller, shall not be removed from the Seller’s premises without the prior written consent of Braun’s Authorized Representative, and immediately upon Braun’s request at the termination of the supplier relationship contemplated hereby shall be returned to Braun.
9. Inspection. Braun shall have the right to inspect the Products or materials during manufacture, prior to delivery, upon delivery or within a reasonable time after delivery. Such inspection shall not constitute acceptance.
10. Changes. Braun reserves the right to make changes to the Order, including quantities, place of inspection, delivery or acceptance, by written instruction to the Seller. Any change which will have a material adverse impact on the Seller is subject to Seller's consent, which will not be unreasonably withheld. Any changes may be made by mutual written agreement of Braun (acting by its Authorized Representative) and the Seller. Any attempted oral modifications to the Order shall not be binding upon the parties. In the event that such changes result in a change in the cost of Products ordered, the price of such Products shall be adjusted by mutual written agreement.
11. Pricing and Payment. Pricing of the Products reflected in the Order shall be inclusive of all taxes, fees, excises, tariffs, duties or other governmental charges or expenses imposed in connection with the Seller's obligations under the Order. Upon request from Braun or its authorized agents or advisors, Seller shall promptly confirm the price of the Product as set forth in the Order. Seller shall (i) promptly render, after delivery of the Products, correct and complete invoices to Braun with respect to such Order; and (ii) accept payment by check or, at Seller's discretion, other commercially reasonable method of payment (including electronic transfer of funds). Seller shall provide Braun with all required information for the processing of payments by check, ACH or other electronic transfers, on which Braun may rely for making such payments by any of such methods. Payment to Seller of the invoiced amount(s) with respect to any Products that have been accepted shall be due sixty (60) days from the date of receipt of the invoice. Braun reserves any rights of set-off.
12. Cancellation for Default. Braun reserves the right to cancel the Order, in whole or in part, without liability to Braun, if Seller: (i) refuses or fails to deliver the Products or any installment thereof strictly within the time specified herein or any extension thereof granted by Braun in writing; (ii) fails to comply strictly with any provision of or repudiates the Order or so fails to make progress to perform under the Order in accordance with its terms; (iii) makes representations which are untrue or misleading at the time they were made; or (iv) is liable for substantial, uninsured loss, theft or damage to the Products, Tooling, Drawings or other Braun materials while in its possession and for which Braun has not paid.
13. Termination for Convenience. Braun may terminate the Order, in whole or in part, at any time for any reason by providing notice to Seller in writing. In such event, Braun shall pay Seller for Seller's actual costs incurred in the production of any Products which are part of an Order but are not yet delivered to Braun, which shall be Seller's exclusive remedy for such termination.
14. Insolvency. If Seller ceases to conduct business, becomes insolvent, is insecure, subject to a take-over, bankrupt (involuntary or voluntary), is part of an assignment, placed in receivership or other similar proceeding then the Order may be terminated in Braun's sole discretion.
15. Good Title. Seller has and will transfer good title to the Products, materials and parts covered by the Order, free and clear of all liens, claims or security interests of any kind.
16. Remedies. The rights and remedies reserved to Braun in the Order shall be cumulative and additional to all other or further remedies provided in law or equity. Any limitation or exclusion contained in or referenced in any writing of the Seller, including without limit any limitation on Braun’s right to recover consequential damages, is rejected and without effect unless agreed in writing signed by Braun’s Authorized representative.
17. Assignment. Neither the Order, nor any of the rights or interests by Seller hereunder, may be assigned, delegated, transferred, or conveyed by operation of law or otherwise without the prior written consent of Braun, except to a parent or subsidiary thereof, in which event the party so assigning shall remain obligated and liable to the other party for the full and complete performance of the Order by the parent or subsidiary to which the Order is assigned.
18. Force Majeure. Any delay or failure of either party to perform its obligations hereunder shall be excused if, and to the extent that it is caused by an event or occurrence not reasonably foreseeable and beyond the reasonable control of the party and without its fault or negligence, such as, by way of example and not by way of limitation, acts of God, fires, floods, windstorms, explosions, riots, natural disasters, wars, sabotage, labor problems (including lockouts, strikes and slowdowns), inability to obtain power, material, labor, equipment or transportation, or court injunction or order; provided that written notice of such delay (including the anticipated duration of the delay) shall be given by the affected party to the other party within ten (10) days of such occurrence. During the period of such delay or failure to perform by Seller and after prompt notice from Seller to Braun of the occurrence of such an event, Braun, at its option, may purchase goods from other sources and reduce its supply from Seller by such quantities, without liability to Seller, or have Seller provide the Products from other sources in quantities and at times requested by Braun and at the price set forth in the Order. If requested by Braun, Seller shall, within ten (10) days of such request, provide adequate assurance that the delay shall not exceed thirty (30) days. If the delay lasts more than thirty (30) days, Braun may immediately cancel the Order without liability.
19. Notices. All notices required or permitted to be given under the Order shall be in writing and shall be deemed given upon personal delivery, upon receipt during normal business hours if given by facsimile with confirmation of receipt or by other electronic communication, upon delivery by overnight carrier, or upon the expiration of the second day after the date of deposit in the United States mail as registered or certified mail, return receipt requested, postage prepaid, addressed to the parties listed on the Order or their then current address if notice of such change of address has been given pursuant to this Section.
20. Communications. The parties acknowledge that communications between them in the ordinary course of business will occur through the use of electronic transmissions, including email and facsimile communications, and that these may be initiated and received by the respective parties’ personnel at various functional levels. Notwithstanding the foregoing, to be effective, an Authorized Representative of Braun must sign (which includes an electronic signature) any amendment, modification or revision to this Agreement and any other writing as expressly provided herein. Braun’s Authorized Representative shall be such person so designated from time to time by Braun in writing delivered to Seller and, in the absence of such writing, shall include any person holding the title of vice president of Braun or above. The parties acknowledge that they shall not be entitled to rely upon any verbal communication or any written or electronic communication which has not been signed by an Authorized Representative of Braun and an officer, manager or other agent of the Seller.
- EDI Systems. Supplier, at its expense, shall maintain an information system with sufficient functions and capabilities to participate in and interface with any electronic data interchange or similar communication system as Braun may establish and require of its suppliers.
22. Intellectual Property Ownership and Patent Indemnity. Seller warrants that all Products shall not violate or infringe on any patent, copyright, trademark, or proprietary interest of any other person. Notwithstanding the foregoing, if such intellectual property is deemed or alleged to infringe on the rights of others, Seller shall (i) defend, hold harmless and indemnify Braun, its successors, affiliates and customers against all claims, demands, proceedings, losses, suits, damages, liability and expenses (including reasonable attorneys' fees) arising out of or based upon any claim for actual or alleged direct or contributory infringement of, or inducement to infringe, any United States or foreign patent, trademark, trade secret, or copyright by reason of the manufacture, use or sale of the Products ordered from Seller, including infringement arising out of compliance with specifications furnished by Braun, or for actual or alleged misuse or misappropriation of a trade secret resulting directly or indirectly from Seller's actions; (ii) waive any claim against Braun under the Uniform Commercial Code or otherwise, in any way related to any claim described in (i) above; and (iii) procure for Braun the right to continue the use of such Products, or replace them with substantially equivalent non-infringing goods, or modify the Products at Seller's expense so they no longer infringe should the manufacture, use or sale of the Products be made the subject of any such suit or claim as described in (i) above. This section shall survive termination, cancellation or expiration of the Order.
23. Indemnification. Seller shall defend and indemnify Braun and its successors, assignees, affiliates, officers, shareholders, directors, employees, agents, dealers, distributors and customers (the "indemnitees"), and hold each of them harmless, from and against any claim, suit, loss, and expense (including reasonable attorneys' fees) or any liability whatsoever against or suffered by any of the indemnitees arising from or as a result of (i) the performance, actions or omissions of Seller or any of its officers, shareholders, directors, employees and agents (except for claims arising from the sole and exclusive negligence of Braun), or (ii) for any property damage or bodily injuries (including death) of any person resulting from or attributable to the Products, the use thereof or any defect or deficiency in any of the Products, including claims based on theories of product liability, strict liability, or any variation thereof, or (iii) any act, failure to act or omission of Seller or any of its agents or subcontractors in the course of performing the Order or designing, producing or furnishing the Products; or (iv) any failure of the Products to comply with the applicable Specifications, warranties, and certifications regarding the Products. Seller shall take all precautions, special or otherwise, and shall be responsible for compliance with all local, state and federal safety laws in the performance of the work hereunder. This section shall survive termination, cancellation or expiration of the Order or of any other agreement or relationship between Braun and Seller.
24. Insurance. Seller shall maintain insurance coverage for any risks arising out of use of or related to the Products and for all risk of loss to all Tooling and Drawings in the possession or control of Seller with solvent, highly rated insurance companies on commercially reasonable terms, including the amounts of coverage. The minimum requirements for such insurance are available on Braun’s website – braunability.com. Upon written request of Braun, Seller shall cause Braun to be named as an additional insured under such insurance policies. At Braun's request, Seller shall furnish to Braun certificates of insurance setting forth the amount(s) of coverage, policy number(s) and date(s) of expiration of insurance maintained by Seller. Such certificates will provide that Braun shall receive thirty (30) days' prior written notification from the insurer of any termination or reduction in the amount or scope of coverage. Seller's purchase of appropriate insurance coverage or the furnishing of certificates of insurance shall not release Seller of its obligations or liabilities under the Order. Seller's insurance coverage shall not be Braun's exclusive remedy; instead Braun shall be entitled to all remedies available to it under equity or at law.
25. Severability. If any provision or term of the Order becomes or is deemed invalid or unenforceable under any statute, regulation, ordinance, executive order, or other rule of law, such provision or term shall be deemed reformed or deleted, but only to the extent necessary to comply with any statute, regulation, ordinance, executive order, or other rule of law, and all other provisions and terms of the Order shall remain in full force and effect.
26. Relationship of Parties. Seller and Braun are independent contracting parties, and nothing in the Order shall make either party the agent or legal representative of the other for any purpose whatsoever, nor does it grant either party any authority to assume or to create any obligation on behalf of or in the name of the other.
27. No Implied Waiver. The failure of Braun at any time to require performance by Seller of any provision of the Order shall in no way affect Braun's right to require such performance at any time thereafter, nor shall the waiver of Braun of a breach of any provision of the Order constitute a waiver of any succeeding breach of the same or any other provision.
28. Term for Claims. Seller shall bring any claim against Braun under the Order within one (1) year of the date the Seller knew or reasonably should have known of the facts giving rise to such claim under the Order.
29. Fees. Each party is responsible for their own legal and accounting fees unless otherwise expressly provided for herein.
30. Governing Law. This Order is to be construed and governed in accordance with the laws of the State of Indiana, exclusive of any choice of law principles, and if the Seller is not doing business in the United States, the United Nations Convention of Contracts for the International Sales of Goods. Seller consents to the jurisdiction of Indiana courts. Any action arising out of or relating to the Order or the Products shall be brought in the State of Indiana. Seller agrees that Indiana is not an inconvenient forum for any action arising from or relating to the Order.
31. Entire Agreement. This Order, together with the documents specifically referenced in the Order and properly executed pursuant to the terms of the Order, or which specifically references the Order, constitutes the entire agreement between the parties with respect to the matters contained herein and supersedes all prior oral or written representations or agreements.
32. Confidentiality. Seller shall not disclose to any third party (other than its attorneys, accountants or other professional advisors which receive information under an obligation of confidentiality) any of the terms or conditions of the Order or of any other aspect of its business relationship with Braun without Braun's prior written consent (given or withheld in Braun's discretion), other than pursuant to any court order or other lawful process.
33. Seller Representations and Covenants. Seller represents, warrants and covenants that it is duly organized under the laws of the state of its organization, it is authorized and has the organization power and authority to enter into this Agreement, this Agreement is valid, binding and enforceable against Seller, its signatory is a duly authorized representative of the Seller, and it will comply in all material respects with all applicable laws, rules and regulations in the performance of its obligations under this Agreement.