Aftermarket Purchase Order Terms and Conditions
ACCEPTANCE OF TERMS AND CONDITIONS.
THE FIRST TO OCCUR OF ANY OF THE FOLLOWING EVENTS WILL CONSTITUTE SUPPLIER'S CONCLUSIVE ACCEPTANCE OF THE PURCHASE ORDER AND THESE TERMS AND CONDITIONS AS THE ENTIRE UNDERSTANDING AND AGREEMENT BETWEEN THE PARTIES: (a) Supplier's written acceptance via email or acceptance via the Fox Supplier portal; (b) Supplier's commencement of any work or services toward the performance of the Purchase Order; (c) Supplier's shipment or provision, in whole or in part, of any Products or Services ordered; (d) forty-eight (48) hours of non-response.
Any acceptance by Supplier stating additional or different terms from those stated in the Purchase Order shall operate as an acceptance by Supplier, but the terms and conditions of the Purchase Order shall take precedence over any and all such additional or differing terms, which are deemed material alterations and, pursuant to Georgia Commercial Code Section 11-2-207 as amended, FOX hereby gives Supplier notice of FOX's objection to such additional or differing terms. No such differing or additional terms in Supplier's acceptance shall be binding or effective unless FOX expressly agrees to such different or added term in a writing signed by both parties.
If this order involves the purchase of goods (as opposed to services), it shall be deemed a purchase and sale between merchants and the Georgia Commercial Code governs such transactions as provided herein.
1. PURCHASE ORDERS.
1.1 Purchase Order Price. The price ("Price") of the finished goods outlined in the Purchase Order ("Finished Goods") is the firm price stated in this Agreement. Unless otherwise specified in each Purchase Order, the Price includes all packaging, containers, packing, crating, boxing, dunnage, drayage, storage, transportation costs to the Delivery Point, insurance, customs duties and fees, and applicable taxes. If the sales price decreases for any items to be furnished hereunder, the Price of all unshipped items shall be adjusted to the lower sales price. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of FOX. In the event the Purchase Order is placed on an open order basis, and in the absence of any price, then the Price for FOX shall not be higher than Supplier's lowest prevailing price in effect on the date of the Purchase Order for the same or substantially similar Products of comparable quality.
1.2 Purchase Order Quantity. If Supplier delivers more than the quantity of Finished Goods ordered, FOX may reject all or any excess Finished Goods. Any such rejected Finished Goods shall be returned to Supplier at its sole risk and expense. If FOX does not reject the Finished Goods and instead accepts the delivery of Finished Goods at the increased quantity, the price for the Finished Goods shall be adjusted on a pro-rata basis.
1.3 Title and Risk of Loss. Title and risk of loss passes to FOX upon delivery of the Finished Goods at FOX's named place of business or, cleared for export where applicable, to FOX's designated carrier at FOX's named place of business. Notwithstanding the foregoing, the risk of loss shall remain with Supplier when Finished Goods are rejected by FOX. Title will transfer to FOX even if Supplier has not been paid for such Finished Goods, provided that FOX will not be relieved of its obligation to pay for Finished Goods in accordance with the terms hereof.
1.4 Most Favored Customer. Supplier represents and warrants that the price for the Finished Goods is the lowest price charged by Seller to any of its external buyers for similar volumes of similar Finished Goods. If Seller charges any other buyer a lower price, Supplier must apply that price to all Finished Goods under this Purchase Order. If Supplier fails to meet the lower price, FOX, at its option, may terminate this Purchase Order without liability pursuant to Section 7.
2. INSPECTION; REJECTION OF NONCONFORMING FINISHED GOODS.
2.1 Inspection. Payment for Finished Goods ordered hereunder will not constitute acceptance. All Finished Goods are subject to inspection. FOX has the right to inspect the Finished Goods on or after the pre-schedule date of delivery ("Delivery Date"). FOX, at its sole option, may inspect all or a sample of the Finished Goods, and may reject all or any portion of the Finished Goods if it determines, in its sole discretion, the Finished Goods are non-conforming or defective. No Finished Goods shall be deemed accepted by FOX until FOX has given written notice of such acceptance to Supplier (approval via email shall be deemed sufficient).
2.2 Rejection of Nonconforming Finished Goods. If FOX rejects any portion of the Finished Goods, FOX has the right, effective upon written notice to Supplier (email shall be deemed sufficient) to (a) accept the Finished Goods at a reasonably reduced price; (b) reject the Finished Goods and require replacement of the rejected Finished Goods; (c) reject the Finished Goods for prompt refund of previous payments; and (d) repair or correct the rejected Finished Goods. If FOX requires replacement of the Finished Goods, Supplier shall, at its expense, within three days replace the non-conforming or defective Finished Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective goods and the delivery of replacement Finished Goods. If Supplier fails to timely deliver replacement Finished Goods, FOX may replace them with goods from a third party and set off the replacement fees against any amount payable by FOX to Supplier. Any inspection or other action by FOX under this Section shall not reduce or otherwise affect Supplier's obligations under the Agreement, and FOX shall have the right to conduct further inspections after Supplier has carried out its remedial actions.
3. CANCELLATION; CHANGE ORDER; SUBCONTRACTORS.
3.1 Cancellation of a Purchase Order. FOX may at any time, cancel or withdraw a Purchase Order by written notice to Supplier (notice via email is deemed sufficient). If FOX cancels a Purchase Order before any items within the Purchase Order are shipped or the Purchase Order is accepted by Supplier, then Supplier shall cancel the Purchase Order without any cost to FOX.
3.2 Change Order. FOX may at any time, by written instructions and/or drawings issued to Supplier (each a "Change Order"), order changes to the Finished Goods or quantities. Supplier shall within three (3) business days of receipt of a Change Order submit to FOX a firm cost proposal for the Change Order. If FOX accepts such cost proposal, Supplier shall proceed with the changed goods subject to the cost proposal and the terms and conditions of this Agreement. Supplier acknowledges that a Change Order may or may not entitle Supplier to an adjustment in the Supplier's compensation or the performance deadlines under this Agreement. Each Change Order is incorporated by reference herein.
3.3 Subcontractor. Supplier may not utilize any person, entity, subcontractor, or affiliate of Supplier without the prior written approval of FOX, which shall not be unreasonably withheld. FOX's approval shall not relieve Supplier of its obligations under the Agreement and Supplier shall remain fully responsible for the performance of each subcontractor and its compliance with this Agreement.
4. SHIPPING AND DELIVERY.
4.1. Shipping. All Finished Goods will be suitably prepared, packed, and shipped by Supplier in a manner that follows good commercial practice and is adequate to ensure safe arrival. No additional charges will be charged to FOX for transportation unless otherwise stated in each Purchase Order. Supplier will mark all containers with necessary lifting, handling, and shipping information, FOX's Purchase Order number, date of shipment, and the names of FOX and Supplier. A packing list will accompany each package within the container, and if such a list is not supplied, FOX's count of the number of units in the shipment will be conclusive.
4.2. Delivery. All shipments will be made F.O.B. (Free On Board) FOX's named place, unless otherwise specified in a Purchase Order. Delivery will be strictly made in accordance with the schedule set forth in the Purchase Order and any anticipated or actual delays in the shipment shall be reported immediately to FOX. Delivery is a material term of this Agreement and time is of the essence. Delivery in advance of the schedule set forth in the Purchase Order need not be accepted by FOX, but if accepted, FOX reserves the right to defer inspection and payment according to the original schedule. Delayed delivery shall be at cost to Supplier. Should FOX or Supplier determine the Finished Goods will need to be expedited in order to meet the delivery deadlines outlined in a Purchase Order, Supplier will be responsible for all expediting fees, including air freight and railway. If Supplier fails to timely deliver Finished Goods, FOX may expedite the Finished Goods and set off the expedite fees against any amount payable by FOX to Supplier. In the event delayed shipments cause downtime to FOX or its customers, Supplier will be responsible for all related costs, including any penalties or charge backs assessed by FOX's customers.
5. PAYMENT.
5.1. Invoices. Supplier will issue an individual invoice for each shipment made under a Purchase Order to FOX on or any time after the completion of delivery and only in accordance with these Terms. Each invoice will contain the Purchase Order number, FOX part number, a description of the items, quantities, and unit prices. Any applicable discount basis will be computed from the latest of the (a) scheduled delivery date; (b) the actual delivery date; or (c) the date an acceptable invoice is received.
5.2. Payment of Invoices. Supplier will issue an invoice to FOX on or any time after the completion of delivery and only in accordance with the Terms. FOX will pay all properly invoiced amounts due to Supplier within sixty (60) days after FOX's receipt of such invoice, except for any amounts due on a different date as listed on the Purchase Order or any amount disputed by FOX in good faith. No interest will be charged on outstanding payments.
5.3. Taxes. To the extent FOX is responsible for taxes applicable under United States law or tax regulations and not included in the Price, FOX may deduct from any payments due to Supplier pursuant to each Purchase Order such taxes FOX is required to withhold from such payments and pay such taxes to the relevant authorities.
5.4. Set-off. Without prejudice to any other right or remedy it may have, FOX reserves the right to set off at any time any amount owing to it by Supplier against any amount payable by FOX to Supplier
6. TERMINATION.
6.1. Termination. FOX may terminate this Order, in whole or in part, at any time with or without cause for undelivered Finished Goods on seven (7) days' prior written notice to Seller. (a) Supplier fails to timely deliver replacement Finished Goods (Section 3) (b) either before or after the acceptance of the Finished Goods, if Seller has not performed or complied with any of these Terms, in whole or in part; (c) if Supplier materially breaches this Agreement; (d) any governmental authority imposes antidumping or countervailing duties or any other penalties on Finished Goods; (e) a Force Majeure event remains for a period of thirty (30) consecutive days following written notice (Section 10); (f) in the event of any proceedings, voluntary or involuntary, in bankruptcy or insolvency, files a petition for bankruptcy by or against Supplier or in the event of the appointment of an assignee for the benefits of creditors or of a receiver; or (g) in the event FOX is not given the most competitive business terms (Section 2.4). This Purchase Order automatically terminates upon acceptance of a fulfillment of a Purchase Order and payment of fees owed.
6.2. Effect of Termination. If FOX terminates the Agreement for any reason, Supplier's sole and exclusive remedy is payment for the Finished Goods received and accepted by FOX prior to the termination. Upon Termination, Supplier shall: (i) promptly terminate all performance under this Agreement and under any outstanding Purchase Orders unless otherwise requested; (ii) destroy, or upon completion of a Purchase Order, promptly return or certify the destruction of all Confidential Information; and (iii) transfer title and deliver to FOX all Finished Goods completed prior to the effectiveness of the notice of termination.
7. WARRANTY.
7.1. Supplier Warranty. Supplier warrants to FOX that for a minimum period of thirty-six months from the Delivery Date, all Finished Goods will: (a) be free from any defects in workmanship, materials, and design; (b) conform to applicable specifications FOX may set forth; (c) be fit for their intended purpose and operate as intended; be merchantable; (d) be in strict conformity to the applicable drawings and specifications for the Finished Goods; (e) be free and clear of all liens, security interests or other encumbrances; (f) and not infringe or misappropriate any third party's patent or other intellectual property rights including U.S. or foreign patents (if not manufactured pursuant to FOX's specific design).
7.2. Benefit of Fox. Supplier warrants that these warranty entitlements shall inure to the benefit of FOX, FOX's distributors, and sales representatives, and end users of FOX's goods and services incorporating such Finished Goods.
7.3. Skilled Personnel. Supplier warrants to FOX that it shall produce the Finished Goods using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.
7.4. Survival. The warranties set forth in this Section 8 are cumulative and in addition to any other warranty provided by law or equity and will survive any delivery, inspection, acceptance or payment of or for the Finished Goods by FOX. Any applicable statute of limitations runs from the date of Supplier's discovery of the non-compliance of the Goods with the foregoing warranties.
8. CONFIDENTIALITY. All non-public, confidential or proprietary information of FOX, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by FOX 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 FOX in writing. Supplier shall neither use FOX's name in disclosures to the public or advertisements of any kind nor disclose the existence of the content of a Purchase Order without FOX's prior, written consent.
9. FORCE MAJEURE. No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such Party's (the "Impacted Party") failure or delay is caused by or results from the following force majeure events "Force Majeure Event," including but not limited to: acts of God; flood, fire, earthquake, or explosion; war, invasion, hostilities, terrorist threats or acts, riot or other civil unrest; government order, law, or action; embargoes or blockades in effect on or after the date of this Agreement; other similar events beyond the control of the Impacted Party. The Impacted Party shall give notice within five (5) days of the Force Majeure Event to the other Party, stating the duration the occurrence is expected to continue, the Force Majeure Event. The Impacted Party will use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable.
10. INSURANCE. Supplier represents and warrants that it will maintain and carry at its own expense, insurance in full force and effect during the Term, the following insurance coverage with financially sound and reputable insurers: (a) Commercial General Liability insurance covering claims for bodily injury, death, personal injury or property damage occurring or arising out of the use or occupancy of the premises, including coverage for independent contractor's protection (required if any work will be subcontracted), premises-operations, personal and advertising injury, products and/or completed operations and contractual liability with respect to the liability assumed by each party hereunder. The limits of insurance shall not be less than $1,000,000 each occurrence, $2,000,000 general aggregate limit, $1,000,000 for Products and Completed Operations, and $1,000,000 Personal and Advertising Injury; (b) Commercial umbrella insurance with limits not less than $5,000,000 per occurrence and $5,000,000 aggregate; (c) Workers' Compensation insurance to cover obligations imposed by federal and state statutes having jurisdiction over Supplier's employees engaged in the performance of work or services under this Agreement and also maintain Employers Liability Insurance of not less than $500,000 for each accident, $500,000 disease for each employee and $1,000,000 disease policy limit; and (d) Business Automobile Liability Insurance covering all owned, non-owned or hired automobiles, with limits of not less than $1,000,000 Single Limit of liability per accident for Bodily Injury and Property Damage; If a separate Business Auto Liability policy is not available, coverage for hired and non-owned auto liability may be endorsed on the Commercial General Liability policy.
A copy of the insurance policies shall be provided upon request by FOX. The certificate of insurance shall name Fox Factory, Inc. and its affiliates, respective officers, directors, employees, and agents as an additional insured and each policy will be primary and non-contributory. Except where prohibited by law, Supplier will require its insurer to waive all rights of subrogation against FOX's insurers and FOX.
11. DISPUTE RESOLUTION & ARBITRATION. In the event of any dispute, the Parties shall first attempt to resolve such disputes through discussions between executives of the companies. If such discussions are not productive after fifteen (15) days, either Party may seek arbitration, in accordance with the rules of and through the American Arbitration Association, in Atlanta, Georgia. This dispute resolution shall be the exclusive process for disputes and Supplier waives any right to dispute resolution, legal or equitable, in courts.
12. INDEMNIFICATION. Supplier shall defend, indemnify and hold harmless FOX and its parent company, subsidiaries, affiliates, successors or assigns, and its respective directors, officers, shareholders and employees against any and all loss, injury, death, damage, demands , liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense (including reasonable attorney and professional fees and costs), and the cost of enforcing any right to indemnification hereunder arising out of or occurring in connection with any actual or alleged (a) Finished Goods purchased from Supplier; (b) Supplier's negligence, willful misconduct or breach of the Agreement; (c) any claim or cause of action arising out of or in connection with any claim that FOX's use or possession of the Finished Goods infringes or misappropriates the patent, copyright, trade secret, or other intellectual property right of any third party; (d) defect of workmanship, manufacture, or material in the Finished Goods; (e) breach of warranty hereunder; (f) failure of the Finished Goods to comply with FOX's specifications. Supplier shall not enter into any settlement without FOX's prior written consent. .
FOX shall defend, indemnify and hold harmless Supplier and its parent company, subsidiaries, affiliates, successors or assigns, and its respective directors, officers, shareholders and employees against any and all loss, injury, death, damage, demands , liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense (including reasonable attorney and professional fees and costs), and the cost of enforcing any right to indemnification hereunder arising out of or occurring in connection with any actual or alleged FOX's negligence, willful misconduct or breach of the Agreement.
13. DAMAGES AND LIMITATION OF LIABILITY.
IN NO EVENT WILL FOX'S TOTAL LIABILITY UNDER THIS AGREEMENT FOR ALL CLAIMS BY SUPPLIER OR ANY THIRD PARTY OF WHATEVER NATURE EXCEED MONIES RECEIVED BY SUPPLIER FROM FOX PURSUANT TO THIS AGREEMENT DURING THE SIX-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO LIABILITY. THIS LIMITATION IS CUMMULATIVE FOR ALL CLAIMS HOWSOEVER ARISING, AND THIS LIMITATION WILL APPLY EVEN IF THE REMEDIES PROVIDED IN THIS AGREEMENT SHALL FAIL OF THEIR ESSENTIAL PURPOSE.
FOX WILL NOT BE LIABLE TO SUPPLIER OR ANY THIRD PARTY FOR ANY LOST PROFITS, CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, REVENUE OR PROFIT, INTERUPPTION OF BUSINESS OR CLAIMS AGAINST EITHER PARTY OR ITS CUSTOMERS BY ANY THIRD PARTY WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILTY, EVEN IF FOX IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14. GOVERNING LAW. All matters arising out of or relating to this Agreement are governed and construed in accordance with the laws of the State of Georgia, without giving effect to any choice or conflict of law provision or rule. The rights and remedies stated herein shall be cumulative in addition to those provided by law or equity. The United Nations Convention on the International Sale of Products shall not apply to this Agreement or any Purchase Order.
15. NOTICE. All notices will be in writing and addressed to the Parties at the addresses set forth at the beginning of this Agreement, or to such other address that may be designated, to the attention of "Legal Department." All Notices shall be delivered by nationally recognized overnight courier, signature required (with all fees prepaid) or certified or registered mail (in each case return receipt requested, postage prepaid). Notice is effective upon receipt. Except as otherwise provided in this Agreement, a notice is effective only (a) upon receipt by the receiving party and (b) if the party giving the notice has complied with the requirements of this paragraph.
16. INDEPENDENT CONTRACTOR. 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 nor bind the other Party in any manner whatsoever.
17. NO THIRD-PARTY BENEFICIARIES. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
18. ASSIGNMENT. Supplier shall not assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement without prior written approval of FOX. Any such assignment or delegation shall be void.
19. ENTIRE AGREEMENT. This Agreement, together with any Purchase Orders, constitutes the entire Agreement between the parties relating to this subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter.
20. SUPPLIER'S COMPLIANCE WITH LAWS. Supplier shall comply with all applicable laws, regulations, and ordinances including but not limited to, the Fair Labor Standard Act of 1938, as amended, the United States Foreign Corrupt Practices Act, U.S. Import and Export Regulations, international prohibitions on child labor, the Williams Steiger Occupational Safety and Health Act as amended, Section 503 of the Rehabilitation Act of 1973, the Vietnam Era Veteran's Readjustment Assistance Act of 1974, and the Equal Employment Opportunity clauses prescribed by Executive Orders 11246, 11375, 11625, 11701, and 11758 regarding nondiscrimination because of race, creed, color, sex, age, national origin, physical or mental handicap, or veteran status. Supplier shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. Additionally, Supplier shall maintain a security policy and procedures concerning systems and data and remote access thereto, building security procedures, equipment used in the provision of Finished Goods are maintained and in good working condition, labor laws, and general health and safety practices and procedures.
21. WAIVER. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or maybe construed, as a waiver thereof.
22. SEVERABILITY. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect, invalidate, or render unenforceable any other term or provision of this Agreement.
23. AMENDMENT AND MODIFICATION. No amendment to or rescission, termination or discharge of this Agreement is effective unless it is in writing and signed by each Party.
24. SURVIVAL. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement.