THE BERGQUIST COMPANY
Purchase Order Terms and Conditions
These Purchase Order Terms and Conditions (“Terms and Conditions”) govern all orders issued by The Bergquist Company (“BERGQUIST”) for the purchase of goods and/or services from the seller (“SELLER”).
1. Acceptance. Purchase Orders must be accepted in writing by SELLER within 24 hours of receipt. If a written order acknowledgment by SELLER is not possible within 24 hours, SELLER must contact BERGQUIST verbally within 24 hours confirming receipt of the Purchase Order and identifying any pending issues. If for any reason SELLER should fail to accept in writing, any conduct by SELLER which recognizes the existence of a contract pertaining to the subject matter hereof shall constitute acceptance by SELLER of BERGQUIST’s Purchase Order, including these Terms and Conditions (the “Contract”). Any terms and conditions proposed in SELLER’s acceptance which add to, vary from, or conflict with these Terms and Conditions are hereby expressly objected to and rejected by BERGQUIST. Any such proposed terms and conditions of SELLER shall be void and these Terms and Conditions shall constitute the complete and exclusive statement of the Contract between the parties, and may hereafter be modified only by written instrument executed by the authorized representatives of both parties. If BERGQUIST’s Purchase Order has been issued in response to an offer from SELLER, and if any Terms and Conditions herein are additional to or different from any terms or conditions of such offer from SELLER, then the issuance of this Purchase Order by BERGQUIST shall constitute an acceptance of such offer subject to the express condition that SELLER (i) assent to such additional and different Terms and Conditions herein, and (ii) acknowledge that the Contract constitutes the entire agreement between BERGQUIST and SELLER with respect to the subject matter hereof and the subject matter of such offer. SELLER shall be deemed to have so assented and acknowledged unless SELLER notifies BERGQUIST to the contrary in writing within five (5) business days of receipt of BERGQUIST’s Purchase Order.
2. Prices; Terms of Payment. The prices and specific terms stated on the Purchase Order apply to all shipments of goods made or services rendered hereunder by SELLER. If the price is not stated on the Purchase Order, the price shall be the lower of the last price quoted to or paid by BERGQUIST, or the prevailing market price. SELLER warrants the prices for the goods or services sold hereunder are not less favorable that those extended to any other customer for the same or similar goods or services in similar quantities. The price stated on the Purchase Order includes all charges for packaging, boxing, crating, special handling, and freight (FOB destination–place of delivery). No charge of any kind not stated on the Purchase Order will be allowed unless specifically agreed to in advance by BERGQUIST in writing. No substitution of materials or accessories may be made without BERGQUIST’s written consent. No charges for extras will be allowed unless such extras have been ordered in writing by BERGQUIST and the price agreed upon. Damage to any goods because of packing which fails to protect such goods will be charged to SELLER. Payment for all undisputed amounts due shall be net sixty (60) days from the date of BERGQUIST’s receipt of the applicable, accurate invoice, unless otherwise agreed by BERGQUIST and SELLER. All payments are made conditional upon acceptance by BERGQUIST of the goods or services called for under this Contract, and shall be subject to adjustment for failure of SELLER to meet the requirements of this Contract, or general right of setoff, or by reason of any counterclaim of BERGQUIST arising out of this transaction with SELLER.
3. Blanket Order. If this Contract is identified as a “Blanket” Contract or “Blanket” Order, SELLER hereby acknowledges that the quantities specified and delivery dates listed in such Blanket Contract are contingent upon the issuance of a written release by BERGQUIST identifying the goods to be purchased and providing delivery directions. If the Contract is identified as a Blanket Order, or deliveries are otherwise specified to be in accordance with BERGQUIST’s written releases, SELLER will not fabricate or assemble any goods, nor procure required materials, nor ship any goods, except to the extent authorized by such written releases from BERGQUIST specifying minimum fabrication and delivery quantities. Forecasts are not releases and may not be relied upon by SELLER. By accepting a Blanket Order, SELLER agrees to accept all releases issued by BERGQUIST thereunder. BERGQUIST will have no obligation to purchase any specific quantity of goods from SELLER, and BERGQUIST may, in its sole discretion, purchase the same or similar goods from other suppliers.
4. Taxes. SELLER’s prices shall be exclusive of all Federal, State or Local sales, use or excise taxes levied upon, or measured by, the sale, the sales price, or use of goods required in the performance of this Contract. SELLER shall list separately on its invoice any such tax lawfully applicable to such goods and payable by BERGQUIST, with respect to which BERGQUIST does not furnish to SELLER lawful evidence of exemption. SELLER will bear and pay all applicable local, state, federal and/or foreign taxes which are based on or measured by SELLER’s net income, gross income, or gross receipts, including any withholding taxes levied against SELLER for the privilege of doing business in a particular jurisdiction. SELLER will be responsible for complying with all applicable local, state, federal and/or foreign laws regarding the registration and collection of applicable sales, use, and value-added taxes, and the filing of returns where applicable. With the exception of such applicable sales, use, and value-added taxes as described above, all other taxes, however denominated or measured, imposed upon SELLER or the price or compensation under this Contract or the goods sold hereunder, shall be the responsibility of SELLER.
5. Packing, Marking and Shipping. All shipments shall be properly packed, marked and shipped in accordance with the requirements of this Purchase Order. SELLER shall pack and mark each package to be shipped with BERGQUIST’s Purchase Order number, the number of packages in the shipment, serial number, if any, of the package, and the quantity and part number of its contents. SELLER shall mail (electronically or otherwise) to BERGQUIST, at the office of BERGQUIST to which shipment is to be made, duplicate invoices, original bill of lading and/or original copy of express receipt, as the case may be, so that such instruments are received by BERGQUIST before the arrival of the shipment. Bills of lading, express receipts, packing lists, packing slips, and/or similar documents shall bear this Purchase Order number. Separate packing slips shall be included in each package of each shipment and shall also state the quantity and part number, if any, and a description of the contents of the package, serial number, and number of packages in the shipment.
6. Delivery. The specific terms of delivery will be stated on the Purchase Order. If not stated, the terms shall be FOB destination-place of delivery. The Purchase Order “DOCK DATE” represents the date whereby the materials are required to be delivered to the purchase order ship-to address using the shipping method specified. The written acknowledgment required from the SELLER should include shipping/delivery information targeting the Purchase Order delivery date. Deliveries shall be made both in the quantities and at the times specified herein, or if no such quantities or times are specified, pursuant to BERGQUIST’s separate written instructions. Shipments in greater or lesser quantity than ordered may be returned at SELLER’s expense, unless written authorization is issued by BERGQUIST. BERGQUIST REQUIRES 100% ON-TIME DELIVERY, defined as up to three days early and zero (0) days late. If SELLER’s deliveries fail to meet the specified schedule, BERGQUIST, without limiting its other rights or remedies, may either direct expedited shipping/routing and charge the excess costs incurred therefor to SELLER, or cancel all or part of the Purchase Order in accordance with the default provisions hereof. Goods which are delivered more than three (3) days in advance of the scheduled delivery are delivered at the risk of SELLER and may, at BERGQUIST’s option, be returned to SELLER at SELLER’s expense for proper delivery and/or have payment therefor withheld by BERGQUIST until the date that the goods are actually scheduled for delivery. SELLER will comply with BERGQUIST’s billing and routing instructions, and SELLER shall pay any redelivery or rerouting expense incurred by BERGQUIST as a result of improperly marked, routed or delivered goods. The obligation of SELLER to meet the delivery dates, specifications, and quantities as set forth in the Purchase Order is the essence of this Contract.
7. Inspection; Quality Assurance. All goods provided hereunder shall be subject to inspection and testing at the point of destination, notwithstanding prior payment therefor by BERGQUIST. Neither BERGQUIST’s inspection and/or testing of any goods, nor failure to do so, will constitute acceptance of the goods or relieve SELLER from responsibility for supplying goods in strict conformance with BERGQUIST’s specifications. SELLER warrants that it has and will maintain an adequate quality control/assurance program with respect to the production and delivery of the goods, and that it creates and maintains adequate quality control/assurance reports, certificates, and other such records relating to the goods. SELLER will promptly furnish at no cost to BERGQUIST authenticated copies of such records and certificates upon BERGQUIST’s request. SELLER agrees to notify BERGQUIST of any changes to SELLER’s raw materials, manufacturing process, or quality control programs that affect the quality, or the form, fit, or function, of the goods. BERGQUIST reserves the right to inspect SELLER’s facilities and/or processes at any time upon reasonable notice.
8. Performance of Services. If this Purchase Order calls for services to be performed by SELLER, all such services will be performed in a good and workmanlike manner and all materials used in connection therewith shall be at the risk and expenses of and shall be replaced by SELLER in the event of any damage or destruction thereof prior to delivery to and acceptance by BERGQUIST. If this Purchase Order calls for services to be performed by SELLER upon any premises owned or controlled by BERGQUIST and/or BERGQUIST’s customers, SELLER will keep the premises and work free and clear of all mechanics’ liens and will furnish BERGQUIST with certificates and waivers as may be required by law. Whenever any property belonging to BERGQUIST or BERGQUIST’s customers is in the possession of SELLER or SELLER’s suppliers, SELLER shall be responsible for its care and safe return to BERGQUIST. SELLER will indemnify, hold harmless, and defend BERGQUIST and/or BERGQUIST’s customers from and against any and all claims, demands, or suits made or brought under any workers’ compensation laws of the state in which any such work is performed hereunder, or under any applicable federal compensation laws, and will, if requested, furnish to BERGQUIST a certificate showing that SELLER is in compliance with such state’s laws and any applicable federal workers compensation laws. SELLER will further indemnify, save harmless, and defend BERGQUIST and/or BERGQUIST’s customers from all losses and expenses for any and all damage to property or injury to or death of persons caused by SELLER in the performance of services pursuant to this Contract.
9. Warranty. SELLER expressly warrants that all goods and services provided hereunder will be: (i) in strict conformance with the specifications, drawings, samples and other descriptions upon which this Contract is based; (ii) merchantable and free from any defects in material, design or workmanship for a period of two (2) years from the date of delivery; (iii) new and/or composed of new components; (iv) fit and sufficient for the purposes for which BERGQUIST intends them, if BERGQUIST has furnished performance requirements for the goods purchased hereunder; (v) free and clear of any lien or other adverse claim against title; and (vi) manufactured, sold, and delivered in compliance with all applicable laws, rules, regulations, ordinances, and/or Executive Orders of the United States, or any federal, state, or local government or other governmental agency. In addition to any other rights or remedies BERGQUIST may have, BERGQUIST may reject goods not conforming to the foregoing warranties in accordance with these Terms and Conditions, whether or not such goods shall have been previously accepted by BERGQUIST or any prior payments shall have been made thereon. SELLER agrees that the forgoing warranties shall survive delivery, acceptance, inspection, test, use of, and payment for, the goods, materials or services provided hereunder and shall inure to the benefit of BERGQUIST, its successors, assigns, and customers in accordance with MINN STAT §336.2-318.
10. Rejection. If, in BERGQUISTS’s reasonable judgment, any of the goods are defective or otherwise not in conformity with the product warranty or other requirements of this Contract, BERGQUIST, in additions to its other rights and remedies, may (i) reject the same for full credit, (ii) retain the same and remedy any such defect or nonconformity at SELLER’s expense, or (iii) require SELLER to thereafter promptly repair such defect or non-conformity or replace the non-conforming goods with conforming goods for BERGQUIST’s acceptance. All non-conforming goods that are so remedied will have the same warranty as stated in Section 8 herein from the date of re-delivery. The packing, handling and transportation costs and expenses incident to BERGQUIST’s exercise of its rights hereunder will be charged to SELLER’s account. Nothing herein shall release SELLER from the obligation of adequate testing, inspection, and quality control.
11. Force Majeure / Excusable Delay. Neither party will be in default for any delay or failure to perform its obligations under this Contract if caused by an act of God or other extraordinary event beyond its reasonable control without its fault or negligence (“Force Majeure”). BERGQUIST may delay delivery and/or acceptance of goods due to a Force Majeure, and SELLER shall hold such goods at the direction of BERGQUIST and deliver them when BERGQUIST notifies SELLER that the cause or event affecting the delay has ended or been resolved. BERGQUIST shall be responsible only for SELLER’s direct additional costs resulting from holding goods or delaying performance of the Contract at BERGQUIST’s request. If SELLER is unable to perform due to a Force Majeure lasting more than ten (10) days, BERGQUIST may obtain alternative supply or services from another supplier or reduce its purchases from SELLER accordingly without liability hereunder. If SELLER is unable for any reason to supply BERGQUIST’s total demands for material hereunder, SELLER must distribute its available supply to BERGQUIST on a percentage basis that is no less favorable than is provided to any other purchaser or internal user of SELLER’s product. If the Force Majeure continues for a period of more than sixty (60) days, BERGQUIST may cancel this CONTRACT in whole or in part without liability.
12. Insurance. SELLER agrees to maintain the following types of insurance coverage: (i) Commercial General Liability Insurance (including Premises and Operations, Products and Completed Operations, Blanket Contractual Liability, and Property Damage/Broad Form Property Damage) in the face amount of not less than $1,000,000 per occurrence, $2,000,000 in the aggregate; (ii) Employer’s Liability; (iii) workers’ compensation coverage in amounts required by law by the jurisdiction(s) in which SELLER is doing business; and (iv) All-Risk Property Damage Insurance for damage to any of BERGQUIST’s assets while at SELLER’s facilities. SELLER is responsible for any and all deductibles that may apply to such coverage. SELLER’s insurance shall be primary and non-contributory to any insurance of BERGQUIST. SELLER waives all rights of subrogation, and upon BERGQUIST’s request, agrees to provide BERGQUIST with evidence of such required insurance and to name BERGQUIST as an additional insured on any such policy(ies).
13. Intellectual Property; Infringement. If BERGQUIST furnishes the design for the goods or requires SELLER to prepare a design for the goods, the BERGQUIST will own all intellectual property rights relating to such design, and SELLER hereby assigns to BERGQUIST all of SELLER’s current and future rights in such design. If SELLER furnishes a pre-existing design for the goods, SELLER will continue to own all intellectual property rights relating to such pre-existing design, but shall grant BERGQUIST an irrevocable, royalty-free, non-exclusive, worldwide right and license (with the right to sublicense to others) to use such intellectual property of SELLER in BERGQUIST’s use of the goods embodying any such intellectual property. SELLER further grants to BERGQUIST, according to the terms of this Contract, an irrevocable, non-exclusive, royalty-free right and license to use any software provided with the goods (or as the goods, if the goods are software). BERGQUIST does not transfer to SELLER any patent, copyright, trade secret, trademark, service mark, or other intellectual property of BERGQUIST in information, documents or other property that BERGQUIST may make available to SELLER under this Contract, other than the right to use such intellectual property as necessary to produce and supply the goods to BERGQUIST. SELLER warrants that the goods specified herein and their sale or use alone, or in combination according to SELLER’s specifications or recommendations, if any, will not infringe any United States or foreign patent, copyright, mask work or trademark, nor will violate the trade secret of any third party. SELLER shall indemnify, defend, and hold harmless BERGQUIST, its affiliates, directors, officers, employees, agents, successors, and assigns, from and against any and all liabilities, suits, claims, actions, demands, judgments, costs, expenses, losses, or damages, including all fines and penalties imposed, and reasonable attorney fees and costs of litigation (collectively, “Liabilities”) incurred by BERGQUIST as a result of such actual or alleged infringement or violation of rights. In the event of an allegation that the goods constitute patent, copyright or trademark infringement, or violate unfair competition rights and the use of the goods is enjoined, BERGQUIST may, at its sole option, pursue any remedy or remedies available at law or in equity, including, without limitation, requiring SELLER to either (i) procure for BERGQUIST the right to continue using such goods, (ii) modify the goods so they become non-infringing, or (iii) remove the goods and refund the total purchase price thereof to BERGQUIST. If any settlement of such claim requires an affirmative obligation on the part of BERGQUIST, or otherwise has a material impact on BERGQUIST, then such settlement shall require BERGQUIST’s written consent, and BERGQUIST may use its own legal counsel in any related proceedings and negotiations related to such Liabilities.
14. General Indemnification. SELLER shall defend, indemnify and hold harmless BERGQUIST from and against all Liabilities for personal injury, including death, property loss or damage, or any other loss or damage to BERGQUIST arising out of or in any manner connected to: (i) the production, sale, delivery, condition, use of, and any defect in, the goods or services supplied hereunder; (ii) any act or omission of SELLER, its agents, employees or subcontractors hereunder; (iii) the breach of any representation, warranty, obligation or covenant of SELLER hereunder; and/or (iv) the violation of any applicable laws, rules, or regulations in its provision of goods or services hereunder; whether any such goods are in the same mode as when delivered hereunder or whether they have been used in the manufacture of, and become part of other goods, equipment, or machinery sold by BERGQUIST to third parties, and SELLER agrees to, and will assume on behalf of BERGQUIST, upon demand (without regard to the merits of said action), the defense of any court, agency or other action which may be brought against BERGQUIST for such Liabilities. SELLER’s obligations hereunder shall not be limited by the extent of any insurance available to or provided by SELLER.
15. Confidentiality of Information. SELLER shall: (i) keep confidential any and all information, drawings, specifications, or data disclosed or furnished by BERGQUIST to SELLER, whether such information is transmitted in written form, orally, or electronic form, (ii) not disclose or permit the disclosure of BERGQUIST’s confidential information to any person other than its employees for whom such knowledge is essential for the performance of this Contract; and (iii) not use BERGQUIST’s confidential information except in the performance of this Contract. SELLER will immediately notify BERGQUIST of any disclosure of confidential information that is not permitted by this Contract, or misuse of any confidential information of BERGQUIST, and SELLER will be responsible for any improper disclosure or use by SELLER’s employees, agents, or subcontractors, of BERGQUIST’s confidential information, and will immediately take steps to terminate such disclosures or misuse. SELLER agrees that no information of SELLER given to BERGQUIST will be confidential unless due notice is given to BERGQUIST in advance and accepted by BERGQUIST in writing.
16. Cancellation. In addition to any other provisions contained herein for the cancellation or termination of this Contract, BERGQUIST may cancel this Contract, for any reason or no reason, in whole or in part by written notice to SELLER, on the condition that BERGQUIST pay to SELLER the actual net cost SELLER incurred in good faith in reliance upon the Contract and prior to SELLER’s receipt of the cancellation notice in connection with this Contract, including the cost of finished goods, work-in-progress and raw materials which cannot reasonably be used for other customers of SELLER or returned; provided, however, that in no event shall BERGQUIST be liable for SELLER’s commitments or production arrangements in excess of the Purchase Order amount or in advance of the time necessary to meet BERGQUIST’s delivery schedule.
17. Default. In the event SELLER (i) is insolvent; (ii) makes a general assignment for the benefit of creditors; (iii) admits in writing its inability to pay debts as they mature; (iv) has a trustee or receiver appointed by any court for it or any substantial part of SELLER’s assets; (v) has a proceeding instituted under any provision of the Bankruptcy Code or any state insolvency law by or against it which is acquiesced in, or is not dismissed within thirty (30) days, or results in an order for relief under the Bankruptcy Code or any adjudication of insolvency, or (vi) fails, or appears to be unable, to perform any of its obligations in accordance with the terms of the Purchase Order, including the delivery schedule set forth therein, BERGQUIST may cancel this Contract in whole or in part and/or pursue any further remedies available at law or in equity. No waiver by BERGQUIST of a breach by SELLER of any provision of this Contract shall constitute a waiver of any other breach of such provision. All of BERGQUIST’s right and remedies hereunder shall be cumulative and not exclusive.
18. LIMITATION OF BERGQUIST’S LIABILITY; LIMITATION ON CLAIMS. IN NO EVENT SHALL BERGQUIST BE LIABLE FOR LOST PROFITS OR FOR ANY OTHER INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND. BERGQUIST’S LIABILITY FOR ANY CLAIM OF ANY KIND FOR ANY LOSS OR DAMAGE ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM THIS CONTRACT, OR FROM THE PERFORMANCE OF BREACH HEREOF, SHALL IN NO CASE EXCEED THE PRICE ALLOCABLE TO THE GOODS OR SERVICES WHICH GIVES RISE TO THE CLAIM. BERGQUIST SHALL NOT BE LIABLE FOR PENALTIES OF ANY KIND OR DESCRIPTION. ANY ACTION RESULTING FROM THE BREACH ON THE PART OF BERGQUIST AS TO THE GOODS OR SERVICES DELIVERED HEREUNDER MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
19. Choice of Law. This Contract shall be governed by the laws of the State of Minnesota without regard to conflict of laws provisions. All disputes arising out of this Contract shall be heard exclusively in a court of competent jurisdiction located in Hennepin County, Minnesota, and SELLER waives all objections to personal jurisdiction and venue lying in such courts.
20. Compliance with Applicable Laws. SELLER agrees that in the performance of this Purchase Order it will comply with all applicable federal, state, county and local laws, ordinances, regulations and codes.
21. Import/Export Compliance. SELLER will be responsible for strict compliance with all legal, regulatory and administrative requirements associated with any importation or exportation of goods, including any required licenses or approvals, and, unless otherwise agreed between the parties, the payment of all associated duties, taxes and fees. Upon BERGQUIST’s request, SELLER will cooperate with BERGQUIST in seeking any duty drawback available to BERGQUIST in connection with the export by BERGQUIST of any goods imported by SELLER and provided to BERGQUIST under this Contract.
22. Bergquist Name/Logo. SELLER may not use the name or logo of BERGQUIST in any manner, other than as may be specifically identified in this Contract, without the express prior written consent of BERGQUIST.
23. Conflict Minerals. SELLER agrees that no conflict minerals as defined by Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act and supplied by SELLER hereunder originated in the Democratic Republic of the Congo or any adjoining country.
24. Hazardous Materials. SELLER warrants that any chemical substance delivered to BERGQUIST hereunder is on the Toxic Substance Control Act inventory and lawfully available for sale or use.
25. Assignment; Subcontracting. No right or obligation under this Contract, including the right to receive monies due or to become due hereunder, shall be assigned by SELLER without the prior written consent of BERGQUIST, and any purported assignment without such consent shall be void. SELLER shall not subcontract or in any other manner delegate to any other party the performance of any work or the supplying of any goods or services under this Contract without the prior written approval of BERGQUIST.
26. Final Agreement. This Contract constitutes the final, complete and exclusive statement of the agreement between BERGQUIST and SELLER, and supersedes all prior and contemporaneous agreements, oral or written, between BERGQUIST and SELLER regarding the subject matter hereof.