Terms & Conditions of Purchase

Terms & Conditions of Purchase

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1.  ORDERS.  

This order is an offer by Fenner Dunlop Americas, Inc. or any of its affiliates as designated on the face of this order ("Fenner") to the parties to whom the order is addressed ("Seller") to purchase the goods and/or services ("Products") designated on the face of this order or attached writing and shall be the complete and exclusive agreement between Fenner and Seller for such Products.   The sole manner of acceptance shall be by performance.   The Terms and Conditions of Purchase supersede all prior representations, quotations, proposals, orders, agreements or understandings with the exception of fully executed supply or pricing agreements.    By accepting Fenner's purchase order, Seller has agreed to these Terms and Conditions of Purchase in their entirety (the "Contract").  Confirmation orders, invoices or similar documents submitted by Seller that modify, add to, or are inconsistent with these Terms and Conditions of Purchase   shall not constitute a counter-offer and are deemed to be material alterations of Fenner's purchase order and are expressly rejected and of no force or effect.  In no event will Fenner be deemed to have in any way changed, enlarged or modified its liabilities or obligations as fixed by these Terms and Conditions of   Purchase   except   by   a   written   amendment executed  by  an  officer  of  Fenner.    No  purchase order is valid unless:

(i) It  is  placed  on  Fenner's  official  purchase order form, and

(ii) Fenner has not withdrawn the order. Typographicaland/orclericalerrorsmadeby Fenner are subject to correction.

2.  PRICES.  

All prices are in U.S. dollars unless otherwise  noted.    Payment  may  be  made  within forty five (45) days after receipt by Fenner of the ordered and conforming Products.  All prices are quoted FOB Fenner's requested delivery destination unless otherwise noted by Fenner.  Prices quoted by Seller shall include sales, excise, municipal, state or any other government taxes.  All taxes and other governmental charges upon the production, manufacture,   distribution,   sale   or   use   of   the Products, to the extent required or not forbidden by law to be paid by Seller, shall be paid by Seller.


Seller   acknowledges   that   any estimates, forecasts or projections of future anticipated volume or quantity requirements for Products provided by Fenner are provided for information purposes only and may change over time.  If quantities and delivery schedules are not specified in the Contract, they will be as reasonably determined by Fenner and stated in Fenner's firm releases issued to Seller from time to time.  If Seller is supplying Fenner under a vendor managed inventory system pursuant to this Contract, Seller shall maintain Fenner's supply at required levels as indicated through the vendor managed inventory system at all times during the terms of this Contract.


Seller shall use the carrier designated by Fenner.  Seller shall comply with all applicable regulations or other legal requirements concerning  the  manufacture,  packaging,  packing and delivery of the Products.   Any additional shipping expenses as a result of Seller's backorders or shipments of a lesser quantity than specified shall be paid by Seller unless Fenner authorizes such shipping expenses in writing.  The Products shall be properly packed and secured in such a manner as to reach their destination in good condition under normal conditions of transport.     Shipping documents, including Seller's invoice, must accompany each shipment and be transmitted to the freight forwarder in a timely manner.  Seller shall bear all risk of loss until Products are delivered to Fenner (including off-loading and stacking) and accepted. Fenner shall not be obligated to return to Seller any packaging or packaging materials for the Products, whether or not any Products are accepted by Fenner.

5.  TIME.  

Seller shall deliver the Products at the time specified in the Contract which shall be during normal business hours.  Fenner, without penalty or liability to Seller, shall have the right to reschedule or postpone any delivery of Products.  Time shall be of the essence of the Contract.   Seller understands and acknowledges that late or nonconforming delivery will obligate Seller to pay direct, incidental and consequential damages to Fenner.  If for any reason Fenner is unable to accept delivery of the Products at the time when they are due for delivery Seller shall, if its storage facilities permit, store the Products in a secure manner until Fenner is ready to accept delivery and Fenner shall pay Seller’s reasonable charges for storage.


Fenner may cancel any purchase order upon written notice to Seller.  In the event of such cancellation, Fenner is responsible to Seller only for the cost of any finished goods or work in process that corresponds to Fenner's purchase order.

Termination of the Contract for any reason shall be without prejudice to rights of Fenner accrued prior to termination.


In the event that Seller or its representatives are performing installation or other on-site services related to the purchase of any goods by Fenner, then Fenner may issue additional specifications  and  conditions  to  such  on-site services.  Seller shall indemnify Fenner and hold it harmless against all claims or losses resulting from any personal injury or property damage claim resulting from any work performed by Seller's employees, agents or subcontractors at Fenner's premises.


Seller expressly warrants to Fenner that all Products or goods sold shall:

(i)      Conform  as  to  quantity,  quality  and description with the specifications contained in the Contract;

(ii)       Be free of all defects in design, materials and workmanship;

(iii)     Be  equal  in  all  respects  to  the  samples, patterns,  drawings,  or  specification  provided  or given by either party;

(iv)     Be capable to any standard or performance specified in the Contract;

(v)       Comply with all statutory requirements and regulations relating to the Products;

(vi)If the purpose for which they are required is indicated in the Contract or known by Seller, either expressly or by implication, be fit for that purpose. The warranties under this section will be effective for  the  longer  of:(a) the  period  provided  by applicable  law  where  the  Products  are  used;  or (b) the warranty period provided by Fenner to its customers.

(vii)     In  addition  to  the  remedies  available  to Fenner through this Contract or applicable law, the Seller  is  liable  to  pay  for  all  associated  costs incurred  by  Fenner  due  to  the  supply  of  non-compliant Products. These associated costs are calculated based on:   (a) a fixed administrative charge of US $1000.00 to cover all handling, data entry and reporting activities resulting from the supply of non-compliant Products; and (b) any additional costs incurred by Fenner in managing the non-compliant Products, including but not limited to, all reworks, investigations and other consequential costs.

Fenner reserves the right to alter the fixed administration charge at anytime without notice to the Seller.

Seller shall repair any defects during the applicable warranty period at Seller's cost and expense (including,  without  limitation,  for  all  parts,  labor and transportation costs) immediately after being notified of any such defect by Fenner.   The warranties and remedies contained herein supplement the warranties and remedies provided by the Uniform Commercial Code or other applicable law which shall not be disclaimed or limited.  All warranties contained in this Contract shall run, and all remedies shall be available to, Fenner, its affiliates and/or customers, and all such warranties shall survive any delivery, inspection, acceptance or payment by Fenner.


(i) Before delivering the Products, Seller shall carefully inspect and test them for compliance with specifications.

(ii)  Seller  shall  also  at  the  request  of  Fenner supply to Fenner a copy of Seller's test sheets and/or inspection reports certified by Seller to be a true copy.   In such instances, Seller shall retain the original documents for a period of ten years.

(iii) Fenner shall be entitled to inspect and test the Products during manufacture, processing or storage.    If  this  right  is  exercised,  Seller  shall provide or shall procure the provision of all such facilities as may reasonably be required for such inspections and tests.   Fenner shall have 5 years from receipt of Products from Seller to bring any claim for defective or non-conforming goods.


(i) Fenner may reject or revoke acceptance of the Products if Seller fails to comply with its obligations.  Fenner reserves the right to inspect, reject and/or revoke regardless of any prior payment for the Products or the placement of the Products into use for all defects that were not actually discovered by Fenner prior to payment or use.

(ii) Fenner  at  its  sole  option  may  return  the rejected or non-conforming Products to Seller at Seller's risk and expense.  In such case, Seller shall within a reasonable time replace such rejected Products with conforming Products.  Fenner may alternatively require Seller to remove, repair and/or replace the defective Products or parts thereof on site without cost to Fenner.

(iii) Seller  shall  return  to  Fenner  any  amounts paid to Seller for rejected or non-conforming Products that have been returned to Seller but not replaced.

(iv) Where Fenner agrees to accept delivery of the Products by installments, the Contract will be construed as a single contract.  Nevertheless failure by Seller to deliver any one installment shall be a material breach of the whole Contract.

(v) The above provisions are in addition to and not  in  substitution  for  any  other  remedies  that Fenner may have under applicable law.


(i) All  patterns,  dies,  molds,  or  any  other tooling and any materials supplied by Fenner or prepared or obtained by Seller for and at the sole cost of Fenner, shall be and remains the property of Fenner.

(ii) Seller shall maintain all such items in good order and condition and insure them against all risks while in the custody and on completion of the order or as otherwise directed by Fenner shall return them to Fenner in good order and condition.

(iii) Seller must have, or put in place systems to ensure that Fenner’s property is clearly identifiable and where possible must be physically marked as such.


(i) Seller warrants that the design, construction and quality of the Products to be supplied to Fenner comply in all respects with all safety and other requirements by any statute, statutory rule or order, or other instrument having the force of law which may be in force at the time when the same are supplied.      Seller  shall  comply  with  all environmental laws and regulations that apply to the Products supplied by Seller to Fenner.  Seller agrees to provide Fenner with Material Safety Data Sheets and Certificate of Analysis when applicable.  Seller shall comply with Executive Order 11246, as amended, Sec. 402 of the Vietnam Era Veterans Readjustment Act of 1974, as amended, Sec. 503 of the Rehabilitation Act of 1973, as amended, and Sec. 61-250.5(a) and Public Law 95-507 as such laws contain required contract clauses relative to equal employment opportunity and are incorporated herein by specific reference at 41 CFR 60-1.4(a, d), 60-4.3, 60-250.5(a) and 60-741.5(a).

Seller shall give Fenner prior written notice of: (a) any delivery of the Products or items accompanying the Products having toxic or other hazards  to  the  safety  or  health  of  persons  or property and shall provide full details of such hazards  and  of  all  precautions  which  should  be taken by Fenner in respect of the delivery, storage, handling, installation and use of the Products or items and provide Fenner with all information relating to the properties of the Products or items to enable  Fenner  to  comply  with  all  relevant legislation relating to the Products or items and/or such  hazards;  and  (b)  any  delivery  of  Products which are perishable or of limited lifespan and of any circumstances which may adversely affect the lifespan of such Products.


Seller shall indemnify Fenner against all actions, claims and demands, costs, charges and expenses arising from and incurred by reason of any infringement or alleged infringement of any intellectual property rights including patent, design patents, trademarks or copyrights by the use or sale of any Products supplied by Seller.


All  designs, drawings,  specifications  and  information  supplied by Fenner in connection with any order are confidential.     All such designs, drawings, specifications   and   information   and   any   copies thereof must be returned to Fenner on completion of the order.


If the parties have entered into a Confidentiality or Non-Disclosure Agreement ("NDA"), the terms and conditions of the NDA shall apply and control for confidentiality obligations between the parties.  In the absence of a NDA,   Seller   may   have   access   to   Fenner's confidential information including, without limitation, inventions, developments, know how, specifications, business plans, results of testings, systems, financial information, product information, method of operation, customer information, supplier information and compilations of data ("Confidential Information").       Seller  shall  use  Fenner's Confidential Information only for the purpose contemplated under this Contract and shall not disclose it to third parties or otherwise use it to its own advantage or Fenner's detriment.  Confidential Information  shall  not  include  information  which: (a) is or becomes publicly available without breach of this Contract by Seller; (b) was known to Seller prior to its receipt from Fenner as evidenced in writing; or (c) is developed by Seller independently of its access to Confidential Information.  Seller is permitted to disclose Fenner's Confidential Information to its employees and authorize subcontractors on a need to know basis only, provided that such employees or authorized subcontractors have written confidentiality obligations to Seller no less stringent than the confidentiality obligations under this section.  Seller shall return Fenner's Confidential Information and shall not use Fenner's Confidential Information for its own or any third party's benefit.   Seller's confidentiality obligations shall survive termination of the Contract for so long as Fenner's Confidential Information remains confidential.  Fenner shall be entitled   to   injunctive   relief   including,   but   not limited to, preliminary, temporary or permanent injunctions,  from  any  court  of  competent jurisdiction as may be necessary to enjoin any violation of this section without the necessity of proving immediate irreparable harm or any inadequate remedy at law.


Seller  shall not assign or delegate any of its rights or obligations under   this   Contract   without   the   prior   written consent of Fenner.  If Fenner consents to Seller's subcontracting of any of Seller's duties under this Contract, Seller will insure that the subcontractor agrees to be bound by all the terms and conditions of the Contract.  Fenner may assign the Contract or any  part  of  it  to  any  person,  firm  or  company without notice to Seller.  Fenner may terminate this Contract upon written notice to Seller without any further liability to Seller if there is a change of control  of  Seller.    The  Contract  constitutes  the entire agreement between the parties with respect to its subject matter, and supersedes all prior oral or written representations or agreements by the parties with respect to the subject matter of this Contract. Except  as  authorized  in  Section 1,  neither  the Contract nor any of its provisions may be modified, amended or waived, whether orally, through the parties' course of performance, course of dealing or course of conduct, or manifested in any other way, unless in writing and signed by authorized representatives of both parties.  It is the express intention of the parties that such requirement for written modifications, amendments or waivers be strictly enforced notwithstanding judicial president or statutory provisions to the contrary.   Any provision found invalid or unenforceable will not affect the validity or enforceability of any other provision  and  the  invalid  provision  may  be judicially modified to the extent enforceable.  The failure of Fenner to insist in any one or more instances, upon the performance of the Contract or the failure of Fenner to exercise any of its rights hereunder shall not be construed as a waiver or relinquishment of any such terms, conditions or rights thereunder and shall not effect Fenner's right to insist on strict performance and compliance with regard to any future performance of the Contract.


Fenner and Seller are independent contractors. Nothing in this contract makes either party the agent or legal representative of the other party for any purpose.  Neither party has authority to assume or to create any obligation on behalf of the other party.


If Seller commits any breach of the terms and conditions of the order, becomes insolvent, is subject to the Bankruptcy courts, enters into an arrangement with its creditors, is put into liquidation or has a receiver appointed, Fenner may, without  prejudice  to  any other  rights  which  may have accrued or which shall accrue to it:

(i) terminate  the  order  simply  by  notice  in writing to Seller; or

(ii) give any such receiver or liquidator or other person the option of carrying out the order on such terms as Fenner may specify.


Seller shall indemnify Fenner against all damage or injury to  any  person  or  to  any  property  (including  the goods themselves) and against all actions, suits, claims, demands, costs, charges or expenses arising out of the Products supplied by Seller.  Seller shall maintain the following kinds of insurance with the minimum limits described below:

a.    Commercial   General   Liability   Insurance with a minimum Limit of Liability of $1,000,000 each occurrence, $1,000,000 Products/Completed Operations Aggregate Limit and $5,000,000 General Aggregate Limit.

b.    Commercial Automobile Liability Insurance including Owned, Hired and Non-Owned Vehicles with a minimum limit of $1,000,000 each accident.

c.   Workers' Compensation Insurance, which provides Statutory Benefits and Employers Liability Insurance with limits of $500,000 (each accident and each employee by disease).

d.    Any other insurance as may be required by law.

Before beginning performance of this Contract, Seller shall furnish insurance certificates as directed by Fenner, satisfactory in form and substance to Fenner, showing the above coverages, and identifying Fenner as a certificate holder.

20.  SET OFF.  

Fenner shall be entitled to apply any sum due from Fenner to Seller in settlement of any sum due from Seller to Fenner or to any other company related or affiliated with Fenner.


Neither party shall be liable to the other party for delay in scheduled delivery or failure in performance caused by acts beyond such party's reasonable control without fault or negligence of such party, such as, without limitation, flood, war, embargo, acts of terrorism, riot   or   the   intervention   of   any   governmental authority  ("Event  of  Force  Majeure"),  provided such party presents a claim and notice in writing to the  other  party  within  twenty-four  (24)  hours  of such party becoming aware that an Event of Force Majeuremay   delay   or   interrupt   performance hereunder.If Seller is unable to perform for any reason, Fenner may purchase Products from other sources and reduce its purchases from Seller accordingly without liability to Seller.


All transactions shall be governed by the laws of the Ohio, United States of America, excluding conflict of law rules.   The provisions  of  the  United  Nations  Convention  on Contracts for the International Sale of Goods shall not apply.


Executive Order 11246, as amended, Sec. 402 of the Vietnam Era Veterans Readjustment Act of 1974, as amended, Sec. 503  of  the  Rehabilitation  Act  of  1973,  as amended,  and  Sec. 61-250.5(a)  and  Public  Law 95-507 contain required contract clauses relative to equal employment opportunity and are incorporated herein by specific reference at 41 CFR 60-1.4(a,d), 60-4.3, 60-250.5(a) and 60-741.5(a).


Any dispute, controversy or claim arising out of or related to this transaction where the matter in controversy does not exceeds the sum of $50,000, exclusive of interest and costs, shall be resolved by binding arbitration.   A demand for arbitration shall be served on the other by certified mail.   Within forty-five (45) days after a party demands arbitration, the parties shall select a single arbitrator.  The selected arbitrator shall conduct the arbitration in a manner substantially similar to the procedures set forth in the Commercial Arbitration Rule of the American Arbitration Association ("AAA").  If the parties are unable to agree on an arbitrator, the party demanding arbitration shall file a demand for arbitration with the AAA and the arbitration shall then proceed in accordance with the Commercial Arbitration Rules of the AAA.  In all circumstances, the arbitration shall take place in Toledo, Ohio, USA.

Any dispute, controversy or claim arising out of or related to this transaction where the matter in controversy exceeds the sum of $50,000, exclusive of  interest  and  costs,  shall  be  adjudicated exclusively by a court of competent jurisdiction in Toledo, Ohio, USA   Seller consents to personal jurisdiction and venue in Toledo, Ohio, USA and agrees not to take any action to challenge such jurisdiction or venue.

In the event of any action or proceeding related to this transaction, and Fenner is determined to be the prevailing party with regard to some or all claims, Seller agrees to pay all of Fenner's attorney's fees and litigation costs up through and including any appeal.