Central Industrial Supply - Terms and Conditions of Purchase
Unless Central Industrial Supply (“CIS ” or “we”) has entered into a written agreement with you as seller that is signed by an authorized representative of CIS , the following terms and conditions will govern when we purchase products or services (such products or services, the “Products”) from you. We value our business relationships and trust that you understand that we must have a set of terms and conditions that fairly balances the costs and risks of doing business between us.
1. Quotations; Contract of Sale. These Terms and Conditions and any document of CIS attached hereto, and any other written or electronic communication of CIS that directed you to or incorporates these Terms and Conditions, including any request for quote or purchase order, will collectively constitute the “Contract Documents” (and in the event of any conflict, these Terms and Conditions will prevail) governing sale of the Products described in the Contract Documents. You will be deemed to have accepted the provisions of the Contract Documents, including these Terms and Conditions, by manifesting your acceptance by any of the following: (a) signing and returning to CIS a copy of the Contract Documents; (b) sending to CIS a written acknowledgement of the Contract Documents; (c) sending an order confirmation or giving instructions to CIS respecting the purchase or delivery of the Products following receipt of the Contract Documents; (d) commencing performance under the Contract Documents; (e) shipping all or any part of the Products; (f) accepting payment for any of the Products; or (g) indicating in some other manner your acceptance of the Contract Documents. CIS may revoke its offer to purchase the Products at any time prior to your acceptance. You will be deemed to have received the Contract Documents if we have notified you where they can be accessed via the Internet. Unless a longer period of time is specified in a quotation for the purchase of Products, prices quoted cannot be revoked prior to thirty (30) days from the date of quotation (the “Offer Period”). If you attempt to revoke a quotation before the expiration of the Offer Period, CIS may nevertheless accept your quotation or other communication during the Offer Period, but any acceptance by CIS is expressly conditioned upon these Terms and Conditions forming a part of the Contract Documents. Upon acceptance, you irrevocably agree and commit to sell the Products in accordance with the Contract Documents. CIS HEREBY OBJECTS TO AND REJECTS THE PROVISIONS OF ANY QUOTE, CONFIRMATION OR OTHER DOCUMENT WHICH IS INCONSISTENT WITH OR IN ADDITION TO THE PROVISIONS OF CIS ’S CONTRACT DOCUMENTS (WHICH INCONSISTENT OR ADDITIONAL PROVISIONS ARE HEREBY EXCLUDED FROM THE CONTRACT), AND CIS ’S OFFER AND OBLIGATIONS ARE EXPRESSLY CONDITIONED UPON YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS. THE CONTRACT DOCUMENTS SHALL BE THE COMPLETE AND EXCLUSIVE CONTRACT BETWEEN YOU AND CIS WITH RESPECT TO THE PRODUCTS (THE “CONTRACT”) AND MAY BE MODIFIED ONLY IN A WRITING SIGNED BY CIS ’S AUTHORIZED REPRESENTATIVE.
2. Changes, Cancellation. CIS may at any time direct changes, or cause you to make changes, to the Products or to otherwise change the scope of this Contract including such matters as inspection, testing or quality control, and you agree to make such changes promptly. Any difference in price or time for performance resulting from such changes shall be equitably adjusted by CIS after receipt of documentation in such form and detail as CIS may direct. Any changes to this Contract shall be made in accordance with this Section 2. In addition to any other rights of CIS to terminate this Contract, CIS may, at its option, immediately terminate all or any part of this Contract, at any time and for any reason, by giving written notice to you. Upon such termination, CIS shall pay to you the following amounts without duplication: (a) the Contract price for all Products completed and delivered in accordance with the Contract Documents and not previously paid for, and (b) the actual costs of work-in-process and raw materials incurred by you in furnishing the Products under this Contract to the extent such costs are reasonable in amount and are properly allocable to the terminated portion of this Contract (provided you have delivered to CIS any such work-in-process or raw materials), less the sum of the reasonable value or cost (whichever is higher) of any goods or materials used or sold by you with CIS ’s written consent and the cost of any damaged or destroyed goods or material. In connection with such termination, CIS will make no payments for finished goods, services, work-in-progress or raw materials fabricated or procured by you in amounts in excess of those expressly authorized under this Contract nor for any undelivered goods or raw materials that are in your standard stock or that are readily marketable. Payments made under this Section shall not exceed the aggregate price payable by CIS for Products that are undelivered at the date of termination. Except as provided in this Section, CIS shall not be liable for payments to you, directly or on account of claims by your subcontractors, for loss of anticipated profit, unabsorbed overhead, interest on claims, product development and engineering costs, facilities and equipment rearrangement costs or rental, unamortized depreciation costs, or general and administrative burden charges from termination of this Contract. Within sixty (60) days from the effective date of termination, you shall submit a comprehensive termination claim to CIS , with sufficient supporting data to permit CIS ’s audit and shall thereafter promptly furnish such supplemental and supporting information as CIS shall request. CIS or its agents shall have the right to audit and examine all books, records, facilities, work, material, inventories and other items relating to any termination claim by you.
3. Price; Payment. The price of the Products shall be as agreed to by the parties and confirmed by CIS and, unless otherwise agreed in writing by CIS , shall be inclusive of all other charges, including foreign, federal, state, and local taxes (excepting only sales taxes CIS is required to pay by applicable law), customs duties, import duties, costs of carriage, packing, packaging, and insurance. Without limiting the generality of the foregoing, you will not charge CIS for boxing, packaging, palletizing or crating (including any damage thereto) unless CIS specifically agrees to such charges in writing in advance. You will cooperate with CIS in obtaining any sales tax exemption certificates or other similar documents, if applicable. No increase in price or extra charges, including any interest or finance charges, shall be effective unless CIS , in its sole discretion, consents to them in writing in advance, and if CIS consents to a price increase or extra charges, it shall not be effective until at least thirty (30) days after such consent is given. Unless otherwise stated in the Contract Documents, all sums due under the Contract Documents shall be paid in United States dollars. Unless specified otherwise in the Contract Documents, payment shall be due no sooner than thirty (30) days after the receipt of a correct invoice and receipt of the Products described in the invoice. You shall apply each payment by CIS to the invoices for which such payment is made.
4. Warranties. You represent and warrant that (a) you are authorized or licensed to provide the Products; (b) you have marketable title to and the right to convey the Products; (c) the Products are unencumbered and free from security interests and liens; and (d) the Products do not infringe any trademark, patent, copyright, design, or similar intellectual property right. In addition to any other express or implied warranties that you have provided or that CIS may otherwise have, you expressly and unconditionally warrant for the maximum period allowed by law after the date of delivery (or replacement) to CIS that all Products shall, unless otherwise specified or agreed by CIS , be new and of first-class quality, be merchantable, be fit for the specific purpose of CIS or its customer, be free of defects in materials, workmanship, manufacture and design (whether latent or otherwise), be adequately contained, packaged and labeled, and conform strictly to the stricter of (i) the specifications and descriptions set forth in the Contract Documents, or (ii) your catalogs, product brochures, and other representations, depictions, samples, and models of the Products. All warranties are for the benefit of CIS and its customers and their respective successors and assigns and shall survive any inspection, delivery, acceptance, and payment. You shall assign in full, and without cost to CIS , all warranties from your suppliers that are applicable to the Products and deliver such assigned warranties with the Products. You shall indemnify, defend, and hold CIS and its applicable customers harmless against any and all loss, liability, expense, claims, or demands, including attorneys’ and consultants’ fees and expenses arising from your or your agents’ breach of this Contract, negligence, gross negligence, or other act that causes any personal injury (including death), property damage, or economic losses, including damage to you, CIS , or third parties, in any manner connected with the performance of this Contract, including indirect, incidental, consequential, and punitive damages or losses, except to the extent caused by CIS ’s sole negligence. If any such claim is made against CIS , CIS shall give you notice of such claim and shall, at your expense, furnish assistance in connection with the defense of such suit as is reasonably requested by you. CIS shall have the right, but not the obligation, to control the defense or settlement of any claim or lawsuit covered by your indemnity, all at your expense. At CIS ’s option, you shall be liable at your sole expense to assume the defense of any such litigation, but CIS may, at its own expense, associate attorneys of its own choice to aid in the defense of any such suit. The obligations, indemnities and covenants contained in this paragraph shall survive the consummation or termination of the Contract.
5. Delivery; Insurance. The date or dates for delivery of the Products are as agreed to by the parties and confirmed by CIS . CIS reserves the right to accept or reject, in whole or in part, partial or excess deliveries of Products. Unless otherwise specified in the Contract Documents: (a) all deliveries of Products shall be Delivered Duty Paid (DDP) CIS ’s chosen location (as defined in “Incoterms 2010”), using the carrier of CIS ’s choice and (b) title and risk of loss shall pass to CIS after delivery of the Products to CIS at the DDP delivery point. TIME IS OF THE ESSENCE IN THE PERFORMANCE OF THIS CONTRACT. A packing slip shall accompany each shipment of Products. Without limiting CIS ’s rights described in Section 8, if you fail to deliver the Products in accordance with the delivery schedule described in the Contract Documents, CIS may procure substitute products from a third party, and you will be responsible for any price differential or expediting costs. You shall be liable for any loss or damage to, and shall procure such insurance as may be reasonable under the circumstances covering loss or damage to, the Products or any property held on CIS ’s behalf. At your expense you shall also obtain and maintain in effect until the expiration of the applicable statute of limitations general liability, products liability and other similar insurance coverage that is reasonable and customary in the industry, but such insurance shall have a limit of not less than $1,000,000 per occurrence for bodily injury and property damage and $2,000,000 in the aggregate. All such insurance shall contain a waiver of subrogation in favor of CIS and its affiliates, and shall be primary to any insurance maintained by CIS , which shall be for the sole benefit of CIS and its affiliates. Upon CIS ’s request, CIS shall be named as loss payee and/or additional insured in such policies and you will provide CIS with one or more certificates of insurance evidencing such coverage.
6. Inspection. CIS shall have the right, but shall be under no duty, to inspect or test the Products before processing, use, or resale, and any processing, use, or resale shall not constitute a waiver of any claim. Complaints or notice of defects in the Products shall be deemed timely if made within a reasonable period of time after discovery by CIS of such defects. Payment for any of the Products shall not be deemed an acceptance of such Products. Any failure of the Products to conform to any of the warranties of Section 4 shall, if CIS has accepted the Products, constitute a nonconformity that substantially impairs such Product’s value to CIS for which CIS may revoke acceptance, such acceptance being deemed to have been induced either: (a) on the reasonable assumption that such nonconformity would be cured and it has not been reasonably cured or (b) if CIS did not discover such nonconformity prior to acceptance, by the difficulty of discovery before acceptance or by your assurances.
7. Compliance with Laws. You agree that you shall strictly comply with all applicable foreign, federal, state, and local laws, rules, regulations, codes, and ordinances, including all applicable laws and regulations regarding employment and discrimination. You shall arrange for all inspections and approvals by governmental officials including customs clearance or other import or export obligations, if necessary. Upon request of CIS , you shall provide a certificate of origin or other documentation reasonably requested by CIS . You shall not offer or provide to CIS ’s purchasing agents, or any other employees, agents or representatives of CIS , any gratuities, gifts, payments, or anything of value in an attempt to influence directly such person’s administration of the provisions of this Contract. The foregoing shall not prohibit you from providing de minimus meals or gifts to CIS ’s employees in accordance with customary ethical industry practices.
8. Remedies. Except as expressly provided in the Contract Documents, CIS and you shall have only those rights and remedies provided by applicable law; provided, however, that if the Products or any part thereof are not supplied in accordance with the Contract Documents or by the delivery date specified therein or you otherwise fail to observe strictly or to comply strictly with any of the Contract Documents, CIS may avail itself of one or more of the following remedies at its discretion, regardless of whether CIS has accepted the Products in whole or in part: (a) to cancel this Contract, in whole or in part; (b) to reject the Products, in whole or in part, and return them to you at your risk and cost for a full refund to be paid promptly by you; (c) to refuse to accept any further deliveries of any Products, without any liability to you; or (d) to claim any damages available to CIS as may have been sustained, including any consequential loss or damage (including any claim for damages or indemnity in respect to any sum paid or payable to any third party), any difference in value of nonconforming Products CIS has accepted, or any loss of revenue, loss of profits, or loss of any contract, arising out of the supply of the Products or their use or resale by CIS . Notwithstanding any contrary provision in the Contract Documents or any other statement, whether written or oral, CIS , through its agents or otherwise, does not assume any responsibility or liability to indemnify, defend, save, or hold harmless any other person, firm or party from or against any loss, damage, or injury, including any indirect, incidental, consequential, special, or punitive damages, losses, or injuries whatsoever, regardless of any language by which such assumption purports to be expressed or implied. Notwithstanding anything to the contrary in the Contract Documents, any claim by CIS may be made within the limitation period provided by the applicable statute of limitations.
9. Force Majeure. Neither party will be liable for loss or damage due to nonperformance resulting from any cause beyond the affected party’s reasonable control, including compliance with any regulation, order, or instruction of any governmental authority, act of God, war (declared or undeclared), terrorism, act or omission of the other party, act of civil or military authority, fire, epidemic, flood, catastrophe, strike against a third party, port shut-down, or riot. In the event of any excused delay due to any such cause, the affected party will promptly notify the other party thereof and will at the same time, or the earliest practical date after such notice, specify any revised performance schedule. If a force majeure event affects your performance, CIS may, but is not obligated to, (a) terminate this Contract in whole or in part; (b) reject any delivered Products, in whole or in part, and return them to you at your risk and cost for a full refund to be paid promptly by you; or (c) refuse to accept any further deliveries of any Products, in each case without any liability to you.
10. Governing Law. For all purchases located within, or if you are organized in, the United States, the law of the State of Louisiana, without regard to its conflict of laws principles, will govern this Contract and the rights and obligations of the parties hereunder. For all international purchases from sellers with no United States presence, the United Nations Convention on Contracts for the International Sale of Goods (the “Sales Convention”) will, to the extent applicable and as limited herein, govern this Contract and the rights and obligations of the parties hereunder. Notwithstanding the foregoing, in the event of any inconsistency or conflict between provisions of this Contract and the Sales Convention, the provisions of this Contract will govern and prevail. To the extent of any such inconsistency or conflict, the provisions of this Contract will be deemed to derogate from the provisions of the Sales Convention within the meaning of Article 6 thereof. Questions that are not expressly settled in this Contract or by application of the Sales Convention are to be settled in conformity with the internal laws of the State of Louisiana, U.S.A., without regard to its conflict of laws principles.
11. Dispute Resolution. CIS and you hereby irrevocably consent to the exclusive jurisdiction of the Courts of the State of Louisiana or the United States District Court for the District of Louisiana in any and all actions and proceedings arising out of or relating to the Contract Documents or any transaction between the parties. You hereby waive any objection which you may have based upon lack of personal jurisdiction, improper venue or forum non conveniens. EACH PARTY HEREBY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A JURY TRIAL IN CONNECTION WITH ANY LITIGATION, PROCEEDING OR COUNTERCLAIM ARISING WITH RESPECT TO RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THE CONTRACT DOCUMENTS OR WITH RESPECT TO ANY CLAIMS ARISING OUT OF ANY TRANSACTIONS BETWEEN THE PARTIES.
12. Assignment and Delegation. Neither party will transfer or assign this Contract, whether by operation of law or otherwise, without the prior express written consent of the other party. Any attempted transfer or assignment hereof without such consent will be void and without force or effect. Except as otherwise expressly provided herein, this Contract is not intended to be for the benefit of, and will not be enforceable by, any person not a party to it or the permitted assignee of such party. Notwithstanding the foregoing, if the Products will be resold by CIS to its customers, you agree that any such customer may enforce directly against you all of your warranties and related covenants and obligations, and that CIS shall not be required to join as a party in any litigation related thereto.
13. Notices. Unless specified otherwise elsewhere in the Contract, all notices and similar communications provided hereunder must be in writing, and delivered by first-class, prepaid, registered United States mail or reputable overnight courier service.
14. Confidentiality. CIS may disclose technical or business information of CIS or its customers to you in connection with the negotiation or performance of this Contract. You agree to keep confidential all such information as well as any other information relating to this Contract. You shall not disclose or use, directly or indirectly, such information for any purpose other than the purposes of performing this Contract.
15. Miscellaneous. All rights and remedies hereunder will be in addition to all other rights and remedies under applicable law, all of which rights and remedies will be nonexclusive and cumulative. No waiver by either party of any default will be deemed a waiver of any subsequent default. If any provision of this Contract is determined to be invalid, such invalidity will not affect the validity of the remaining portions of this Contract. Your acceptance of the Contract Documents will constitute your representation and warranty that you have obtained all necessary approvals, licenses and permits required from all applicable governmental authority with respect to the shipment, importation, delivery or use of the Products. CIS will have the right to cancel its performance under this Contract, and may withhold or suspend performance of any of its responsibilities hereunder, for any failure or delay by you in giving CIS any assurances CIS may require, in its sole discretion, that all such approvals, licenses and permits have been obtained, in which event you will promptly reimburse and indemnify CIS for all damages, costs or losses incurred by CIS due to such failure or delay by you.