GENERAL REMARKS, SUBCONTRACTING AND LEGAL REGULATIONS
All purchases of the VANMARK EQUIPMENT, LLC designated in the order (referred to below as “VANMARK”) are exclusively subject to these General Terms and Conditions of Purchase (“Terms and Conditions”). “Supplier” shall mean any person, firm or company to whom VANMARK’s Purchase Order is issued. These Terms and Conditions shall apply to any future individual contract of purchase between VANMARK and Supplier. Upon Supplier’s acceptance of a Purchase Order these Terms and Conditions shall be binding. Any different or additional terms and conditions of Supplier are objected to and are hereby rejected and shall be of no effect nor in any circumstances binding on VANMARK. Notes referring to the validity of legal regulations will only be valid for explanatory purposes. Thus legal regulations, in as far as they have not been directly amended or explicitly excluded in these Terms and Conditions, will under all circumstances also be deemed valid without such explanation. Where these General Terms and Conditions require a communication to be in writing, e-mail, fax and other forms of written communication shall suffice. Supplier is not permitted to assign this Agreement or any obligations hereunder, including without limitation subcontract any part of a VANMARK order to any third parties without the express written agreement of VANMARK. The Supplier shall not be relieved of any of the Supplier's obligations under these Terms and Conditions by the appointment of a subcontractor. The Supplier shall remain primarily responsible for the performance of its obligations pursuant to the Agreement, and liable for performance by and the acts or omissions of any subcontractors it appoints. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
PURCHASE ORDERS, PRICES
Only written or electronic purchase orders issued by VANMARK (each a “Purchase Order”) shall be valid. Verbal or telephone orders, as well as additions, changes or different conditions, shall be binding on VANMARK only if they have been confirmed in writing by VANMARK.
VANMARK shall have the right to terminate its Purchase Order upon written or electronic notice to Seller in whole or in part at any time prior to the arrival of the ordered goods. Upon such notification, Supplier shall immediately stop all work and/or shipment of goods and cause its suppliers and/or subcontractors to cease their work against the Purchase Order and protect property in Supplier's or subcontractors’ possession for which VANMARK has or may require an interest. In event of such termination Supplier shall be paid solely actual direct unavoidable costs incurred up to the time of termination which are properly allocable to, and arise directly from, this termination less salvage value, provided recognized accounting practices and principles are used and consistently applied. Seller shall not be entitled to any anticipatory profits with respect to the terminated portion. In no event shall termination charges exceed the price agreed upon as set forth herein and related purchase orders for the terminated items nor shall VANMARK be liable for incidental or consequential liabilities. Supplier shall submit any termination claim to VANMARK within one month after a termination. Seller shall not be paid for terminations of Purchase Orders for standard products. The indicated prices shall be considered firm and do not include VAT. Supplier shall issue invoices of VAT, which is indicated separately on the orders, to VANMARK upon each delivery for each order. All offers, visits, consulting services and drafting of documents will be free of charge by the Supplier at all times.
DELIVERY
Transportation is subject to the conditions stipulated in the Purchase Order; if not set forth in the Purchase Order, freight shall be DDP (INCOTERMS 2020), VANMARK’S designated facility (the “Delivery Location”). Supplier is responsible for proper packing and crating. Unless otherwise agreed in the Purchase Order, risk and title is deemed transferred when the ordered goods arrive at VANMARK’s premises. Unless otherwise set forth on the Purchase Order, transport insurance is the responsibility of Supplier. Goods purchased must arrive at the Delivery Location on the agreed delivery date set forth on the Purchase Order. If Supplier has reason(s) to believe that timely delivery is partly or completely unlikely, Supplier shall immediately inform VANMARK by indicating the reason(s) and the estimated length of the delay. In case of delay Supplier shall, at its own cost, choose the most expedient means of transport. Partial or advance deliveries are only permitted with the express written agreement of VANMARK. All goods shall be received subject to VANMARK’s right of inspection and rejection. If appropriate VANMARK shall check deliveries within an appropriate time period and notify Supplier of any deficiency. No inspection, tests, approval, design approval, or acceptance of the goods relieves Supplier from responsibility for warranty, latent defects, fraud, or negligence. Payment by VANMARK shall not constitute a waiver of a possible complaint. Deliveries in excess or short of the ordered quantity may only be made with VANMARK’s express written agreement. If an excess amount has been delivered, VANMARK has the right to return the unordered excess amount at the Supplier's cost without warning and/or to charge Supplier for all additional costs (e.g. storage).
WARRANTY AND LIABILITY
Supplier guarantees the goods purchased to be new, free and clear of all liens, security interests or other encumbrances, and free of deficiencies which might affect their value or fitness for the intended use, are free of design defects and that the goods have the promised characteristics and meet the stipulated performance and specification requirements, for a period of 24 months from the time of start-up at the applicable VANMARK customer site. Supplier further guarantees that the goods are free from any third party rights. The ordered goods shall conform to all applicable laws and regulations. Supplier warrants to repair any deficiencies in the goods delivered or to deliver replacements satisfactory to VANMARK, in each case free of charge and at Supplier’s risk. In urgent cases, or if Supplier is tardy, VANMARK shall be entitled at its option to have the flaws or defects repaired or to replace the flawed or defective goods, in either case at Supplier's cost. VANMARK shall in its sole discretion, at Supplier’s cost, be entitled to recall such goods purchased that may have the potential to cause unreasonable danger to the assets of third parties, human health or safety of life. Supplier shall be liable for any damage caused by the delivered goods or Supplier unless Supplier can prove that it and others for whom Supplier is responsible are in no way at fault. Supplier shall indemnify VANMARK from any claims from third parties related to the delivery of flawed or defective goods. Supplier's guarantees shall also extend to parts manufactured by subcontractors, unless expressly agreed upon in writing to the contrary. The guarantee period shall be twenty-four (24) months, unless otherwise agreed in writing. The guarantee period begins upon acceptance of the goods by VANMARK. Replacements and repaired items shall also be covered by the same guarantee as the delivered goods.
Supplier guarantees that services will be timely, expertly and properly performed, by qualified personnel with adequate care, in compliance with all applicable laws. VANMARK shall be entitled to have flawed or defective services re-performed any time after VANMARK discovers such flaws or defects in the performance of services.
INVOICES AND PAYMENT
Invoices must be submitted to VANMARK with proof of origin and with the VANMARK order number, according to applicable regulations. Unless otherwise agreed, payment shall be made within 30 days after receipt of the invoice, but no sooner than 30 days after the goods have been received or accepted respectively. Assignment of accounts receivable to third parties shall not be recognized unless expressly agreed to in writing by VANMARK.
TOOLS, DIES AND MATERIALS
Tools, dies or other material provided to Supplier by VANMARK, or which have been paid for in part or in full by VANMARK, shall not be used to execute the orders of third parties or for any other purpose without the express written agreement of VANMARK. Such tools, dies and material shall be clearly marked as property of VANMARK and they shall be suitably stored, maintained and insured by Supplier at Supplier’s cost. They remain the property of VANMARK, and their return can be requested by VANMARK at any time.
TECHNICAL DATA AND CONFIDENTIALITY
All information, data, specifications and drawings provided by VANMARK to Supplier for the purpose of providing the relevant goods or services prior to, during, or subsequent to the formation of the order, shall not be used for any other purpose than to provide the goods and services to Supplier pursuant to the applicable order, nor copied, disclosed or made available to third parties. VANMARK’s provision of information to Supplier shall not be deemed to transfer any proprietary rights in such information to Supplier, and all rights remain with VANMARK. Upon demand, all documentation including all parts and reproductions thereof shall immediately be returned to VANMARK. Supplier shall consider the Purchase Order itself, as well as any related work and deliveries, as VANMARK trade secrets and shall therefore treat them confidentially. Without limiting the forgoing, All non-public, confidential or proprietary information of VANMARK, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed or otherwise made available by or on behalf of VANMARK to Supplier, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the purpose of performing this Agreement and may not be disclosed or copied unless authorized in advance by VANMARK in writing. Upon VANMARK's request, Supplier shall promptly return all documents and other materials received from VANMARK. VANMARK shall be entitled to injunctive relief for any violation of this Section.
INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT, GENERAL INDEMNIFICATION, INSURANCE
Supplier shall ensure that the goods and services provided, and delivery and use of the goods and services do not infringe the patent, design, copyright or any other rights of third parties. In the event of an infringement, actual or alleged, Supplier shall indemnify and hold harmless VANMARK from and against any and all costs and liability incurred by VANMARK as a result thereof. This provision shall not apply to Purchase Orders comprised entirely of items entirely designed by VANMARK. Supplier agrees to indemnify VANMARK and hold it harmless from and against any loss suffered and any liability incurred whenever such loss or liability is caused by breach, conduct, violation of law, or negligent act or omission of Supplier, its employees, agents or subcontractors. Supplier assigns to VANMARK all rights (including but not limited to copyrights, to the extent assignable) in all deliverables that were specifically developed by Supplier for VANMARK or that were developed jointly by Supplier and VANMARK hereunder. Supplier shall not supply any goods based on VANMARK’s design or customized for VANMARK to any third parties. Supplier shall maintain insurance coverages at levels of insurance sufficient to meet its obligations, but in no event coverage types or amounts less than are customary for businesses of the type and size of the Supplier, and without limiting the forgoing, such amounts as may be designated by VANMARK in VANMARK on the applicable order, in VANMARK’s sole discretion, and Supplier shall provide VANMARK with written proof of insurance when requested.
COMPLIANCE WITH LAWS
Supplier shall comply with any and all laws, regulations and standards, and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement, including but not limited to environmental, employee protection, export and import control and product safety laws applicable to the manufacturing of or otherwise relevant for the goods sold and the services rendered by Supplier to VANMARK, the operation of its business and performance of its obligations pursuant to the Agreement. All products, services and technologies shall only be exported, re-exported, imported or transferred in accordance with all applicable laws. Upon reasonable notice, VANMARK shall be entitled to carry out on-site/off-site audits of the Supplier and its sub-suppliers. VANMARK may carry out such audits in person or through a third party. Supplier assumes all responsibility for shipments of Goods requiring any government import clearance, and shall maintain complete and accurate records relating to the provision of the services and goods under this Agreement during the term of this Agreement and for a period of three years thereafter, upon VANMARK's written request, Supplier shall allow VANMARK or its designee to inspect and make copies of such records and interview Supplier personnel in connection with the provision of the Services. Supplier shall have and adhere to commercially reasonable written information security guidelines, and Supplier shall notify VANMARK promptly under the circumstances; however, no later than the first of (i) as required by law; or (ii) two (2) business days after discovering such event, of any unauthorized access or breach of system security, unauthorized access of VANMARK information or misuse of VANMARK information by an employee, agent or subcontractor with access to such information, and Supplier agrees to take all actions reasonable under the circumstances necessary to immediately prevent continued risk exposure to such information.
VENUE AND GOVERNING LAW
This Agreement, each Purchase Order, as well as the commercial and contractual relationship between VANMARK and the Supplier shall be governed in accordance with the laws of the State of Ohio without regard to any conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980, shall be excluded. In the event of disputes arising out of, or in connection with the Agreement, any Purchase Order or with these Terms and Conditions, the parties hereby declare that the courts sitting in Franklin County, State of Ohio, shall have sole jurisdiction. However, VANMARK is also entitled to file actions against the Supplier in any other courts holding jurisdiction over Supplier, or that Supplier is otherwise subject to jurisdiction. Supplier hereby irrevocably consents to the exercise of personal jurisdiction by any such court with respect to such proceedings. The parties hereto have specifically requested that this Agreement be drawn up in the English language only. Les parties aux présentes ont specifiquement requis que la présente Convention soit rédigée seulement en langue anglaise.
EQUAL OPPORTUNITY EMPLOYER
Supplier agrees that, to the extent applicable: (1) it will comply with the following laws, which are incorporated herein by reference: Executive Order 11246, and Executive Order 13496 (29 CFR Part 471, Appendix A to Subpart A) relating to the notice of employee rights under federal labor laws; and (2) this contractor and subcontractor shall abide by the requirements of 41 CFR 60-300.5(a) and 41 CFR 60-741.5(a). These regulations, respectively, prohibit discrimination against qualified protected veterans and qualified individuals on the basis of disability and require affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans and qualified individuals with disabilities.
ENTIRE AGREEMENT
These Terms and Conditions, each Purchase Order, and all terms, technical specifications, conditions, and any appendix, expressly incorporated herein or therein by reference, each as may be amended by VANMARK from time to time (collectively, the “Agreement”), supersede all prior understandings, transactions and communications, oral or written, with respect to the matters referred to herein, including without limitation separate purchases of parts by VANMARK, and form the complete agreement between VANMARK and Supplier. Acceptance by Supplier of VANMARK’s order or VANMARK’s acceptance of Supplier’s proposal, confirmation, acknowledgement, or agreement, and each order is expressly limited to and conditioned upon Supplier’s acceptance of and assent to the terms and conditions of the Agreement. Any additional, inconsistent or different terms or conditions contained in or made available through Supplier’s confirmation, acknowledgement, invoice or other documents or materials submitted by Supplier at any time, whether before or after the date hereof, are hereby expressly rejected by VANMARK and no click-wrap or other terms and conditions provided with any other documents or materials of Supplier will constitute a part or amendment of this agreement or are or will be binding on VANMARK for any purpose. Supplier acknowledges that, notwithstanding anything to the contrary contained in its confirmation, acknowledgement, invoice or other documents, Supplier’s signature below, or Supplier’s acceptance of any amount owed hereunder, or Supplier’s delivery or performance of any goods or services in whole or in part, or any other manifestation of Supplier’s assent to these terms shall constitute acceptance by Supplier of this Agreement.