DICKEY-john Terms and Conditions of Use

1. ACCEPTANCE AND MODIFICATION. This purchase order, whether or not issued with reference to a quotation or proposal of Seller, shall constitute an offer to enter into the purchase agreement it describes, and it shall be the complete and exclusive statement of such purchase agreement. Seller shall accept the offer in writing or by commencement of work hereunder. No modifications or changes proposed by Seller shall be valid unless confirmed in writing by Buyer. CHANGES, (a) Buyer, at anytime, by written order, may change the design (including drawings, materials, and specifications, processing, method of packing and shipping, and the place, quantity, and time of delivery, of the supplies and services. (b) Seller shall not make any change in the design, processing, packing, shipping of place and time of delivery of the supplies and services without the Buyer's written approval.
2. FABRICATION AND MATERAL COMMITMENTS. Unless otherwise authorized in writing by Buyer, Seller shall not make commitments for material or fabricate in advance of time necessary to permit shipment on prescribed delivery dates. Except for customary quantity variations recognized by trade practice, Buyer may return overshipments to Seller at Seller's risk and expense for all packing, handling, sorting and transportation.
3. SHIPMENT. If the goods are not shipped in accordance with Buyer's direction and the instructions set out in this order, Seller shall be responsible for any excess cost thereby caused.
4. DELAYS. (a) Seller shall fail or refuse to proceed with this purchase order, or if Seller shall fail to make delivery according to the delivery schedule, buyer may cancel the then remaining balance of this order, unless delay is an excusable delay as hereinafter defined. (b) An excusable delay is any delay resulting from causes or events beyond reasonable control and without fault or negligence on the part of the party involved, including but not limited to acts of God or of the public enemy, fires, floods, labor disputes, any allocation order issued by the Government or any other act of Government, and delays of a supplier due to such causes. In the event of a delay in performance, Buyer at its option, may acquire possession of all finished goods, work-in-process, and parts and materials produced or acquired for the work hereof, and Seller shall deliver such articles to Buyer, at Buyer's option F.O.B. carrier, Seller's facility, or F.O.B. Buyer's facility.
5. CONSIGNMENT. Unless otherwise specified, Seller bears all responsibility for loss and damage to articles owned by Buyer and possessed by Seller for use in performing this purchase order, including responsibility for loss and damage wear and tear. Seller shall at its expense, insure for reasonable value, house and maintain on Seller's premises, and identify as property of DICKEY-john Corporation, all such articles. Buyer shall have the right to enter Seller's premises at reasonable times to inspect such articles and Seller's records pertaining thereto. Upon request, Seller shall immediately deliver such articles to a carrier selected by Buyer at Buyer's option F.O.B. carrier, Seller's facility, or F.O.B. Buyer's facility, properly packed and marked in accordance with the requirements of the carrier and the Buyer.
6. SAMPLES. Seller, at its own expense, shall fabricate from production tooling and processes and furnish to Buyer the number of samples specified on the face of this purchase order. Seller shall inspect such samples before delivery and shall certify inspection results in the manner requested by Buyer.
7. INSPECTION AND ACCEPTANCE. Inspection and test of the articles by Buyer may at Buyer's option be made at Seller's plant and/or point of destination. At the Buyer's option, the Buyer may make a surveillance of the Seller's inspection, quality, and reliability procedures as well as the data supporting same. Acceptance of the goods by Buyer shall not relieve Seller from any of its obligations and warranties hereunder. In no event shall payment be deemed to constitute acceptance. Buyer, at its option, may reject, or retain and correct goods that fail to meet the requirements of this purchase order. Upon notice thereof from Buyer, Seller shall promptly correct or replace goods at Seller's expense. If Seller shall fail so to do, Buyer may cancel this order as to all such goods, and in addition may cancel the then remaining balance of this order. After notice to Seller, all such goods will be held or returned at Seller's risk and expense. If Buyer elects to correct the good, it shall consult with Seller on method of correction. Seller shall reimburse Buyer for reasonable expenses resulting from rejection or correction.
8. INDEMNITY. Except as may be otherwise expressly agreed to in writing between Buyer and Seller, in no case shall Buyer indemnify or hold harmless Seller against any claim for personal injury, property, incidental, consequential, or special damages arising out of or resulting from improper or defective design, material, or workmanship in goods purchased from Seller hereunder.
9. WARRANTY. Seller expressly warrants that all articles, material, and work covered by this purchase order will conform to the specification, drawing, samples, or other description furnished or adopted by the Buyer, and will be of good material and workmanship, and free from defects, and if the articles are not ordered to Buyer's specifications. Seller further warrants that they will be merchantable and fit and sufficient for the purpose intended. Seller shall handle and be responsible for every claim of damage or injury that is based on a breach of the foregoing warranty, or at Buyer's option provide all reasonable assistance to Buyer in Buyer's handling of such claims.
10. PACKING, MARKING, ROUTING, AND SHIPPING. Seller shall pack and ship the articles in accordance with the requirements of Buyer and the carrier transporting such articles. Seller shall mark each package in accordance with the current edition of Buyer's packaging specifications and additional instructions of Buyer and the carrier. Seller shall reimburse Buyer for all expenses incurred by Buyer as a result of improper packing, marking, routing, or shipping. Seller shall not charge separately for packing, marking, or shipping or for materials used therein, unless Buyer specifies, in writing, that it will separately reimburse Seller for such charges. Buyer may require shipment of any of the articles by a more expeditious method of transportation if Seller fails to meet the shipping requirements of this purchase order, and Seller shall bear the cost difference of such transportation unless such failure is due, as defined in Section 5, to an excusable delay. Seller shall be responsible for any loss, damage, or injury which results from or occurs during shipment of goods F.O.B. Seller's plant via Seller's vehicles.
11. TERMINATION. Buyer may terminate its purchase obligations hereunder in whole or in part at any time by written notice of termination to Seller. Buyer shall have such right of termination not withstanding the existence of an excusable delay as defined herein. Upon receipt of the notice of termination, Seller, unless otherwise directed by Buyer, shall; (a) terminate promptly all work under this purchase order; (b) transfer title and deliver to Buyer the finished work, the work-in-process, and the parts and material which Seller produced or acquired in accordance with this purchase order and which Seller can not use in producing goods for itself or for others; (c) settle all claims by subcontractors for actual costs that are rendered unrecoverable by such termination, and; (d) take any actions reasonably necessary to protect property in Seller's possession in which Buyer has an interest. Upon termination by Buyer under this section, Buyer's obligations to Seller shall be; (e) the purchase order price for all finished work and completed services which conform to the requirements of the purchase order; (f) Seller's actual cost of the work-in-process and parts and material transferred to Buyer in accordance with subsection (b) hereof; (g) Seller's actual costs of settling the claims by subcontractors of subsection (c) hereof, and: (h) Seller's actual cost of carrying out its obligations of subsection (d) hereof: but Buyer's obligations shall not exceed those Buyer would have had to Seller in the absence of termination. Seller shall furnish to Buyer, within one month after termination date, Seller's termination claim, which shall consist exclusively of the items of Buyer's obligations to Seller set forth in this section. Buyer may audit Seller's records, before or subsequent to payment to verify amounts requested in Seller's termination claim. Buyer shall have no obligation to Seller if Buyer terminates its purchase obligations of this purchase order because of default by Seller.
12. OSHA AND RIGHT-TO-KNOW COMPLIANCE. Goods shipped pursuant to this purchase order must comply with applicable Occupational Safety and Health Act regulations and worker right-to know laws. It is particularly important that MSDS sheets for hazardous materials be received by Buyer prior to or with shipment of the goods.
13. APPLICABLE LAW. This purchase order shall be governed and all disputes shall be settled in accordance with the Uniform Commercial Codes as adopted in the State of Illinois.
14. TAXES. Unless otherwise stated, the prices do not include sales, use excise, and similar taxes that may be applicable to the goods furnished hereunder of the materials used in the manufacture thereof.
15. DELEGATION AND ADVERTISING. Seller shall not delegate all of its substantive duties of this purchase order without Buyer's written approval. Seller shall not refer to Buyer in advertising or public releases without Buyer's written approval.
16. REMEDIES. No remedy herein provided shall be deemed exclusive of any other remedy allowed by law.
17. PROPRIETARY RIGHTS. (a) Seller shall handle and be responsible for every claim of infringement of any present of future patent, copyright, industrial design right, or other proprietary right that results from the sale or use of the supplies hereof (i) alone, (ii) in combinations by reason of their content, design, or structure, or (iii) in combination in accordance with Seller's recommendations, or, at Buyer's option provide all reasonable assistance to Buyer in Buyer's handling of such claims. Seller's obligations shall apply even though Buyer furnishes all or any portion of the design and specifies all or any portions of the processing. (b) Seller grants to Buyer a nonexclusive, royalty free, irrevocable license to rebuild and have rebuilt the supplies purchased by Buyer under this purchase order. (c) Seller will neither assert nor transfer to another a right to assert against Buyer or customers thereof, any copyright of Seller that is applicable to any works of authorship furnished to Buyer in the course of authorship furnished to Buyer in the course of Seller's activity hereunder. (d) All technical information disclosed heretofore and hereafter by Seller to Buyer in connection with these supplies or services in disclosed on a non-confidential basis.
18. CONFIDENTIALITY. This document and any material transmitted herewith may contain information proprietary to Buyer, its subsidiaries or affiliates, and such information is not to be used by the recipient for any purpose other than the purpose for which it was transmitted. The information shall be maintained in confidence and not disclosed to third parties without the written consent of the sender.