1. Offer and Acceptance; Controlling Terms. These Terms and Conditions of Purchase (“TCP”), together with any purchase order (each a “PO”) provided by The Olander Corporation (“Olander”) to any provider of products or services (“Seller”) constitute an offer to purchase by Olander and are not an acceptance of any offer or terms which may have been submitted by Seller. Seller may accept this offer to purchase and shall be bound to supply the applicable products or services in accordance with this TCP either by execution of the acknowledgment copy of the PO, electronic transmission (fax or email sufficient), delivery of the products, performance of the services or by any other statement, act or course of conduct which constitutes acceptance under applicable law. Upon acceptance, this TCP and any related PO shall constitute the entire agreement (the “Agreement”) between the parties (except for any additional warranties given by Seller), superseding any and all previous or contemporaneous communications and negotiations. Unless specifically signed by a duly authorized representative of Olander, no additional or different terms or conditions (except additional warranties given by Seller) of any quotation, acknowledgement, invoice or other form supplied by Seller shall become part of this Agreement and shall be deemed unenforceable as against Olander, notwithstanding Olander’s failure to specifically object to such terms or conditions. IT IS AGREED THAT THIS TCP SHALL GOVERN ALL POs FOR PRODUCTS AND SERVICES BY OLANDER FROM SELLER.
2. Prices. Unless otherwise indicated in this Agreement, the price stated on the applicable PO (the “Purchase Price”) shall include all applicable sales, use and excise, taxes, tariffs, duties, VAT and any other charges imposed by any country, state or other political subdivision in connection with the sale of the products for which Olander shall be responsible. Olander shall be subject to no charges or expenses in excess of the Purchase Price. Seller shall remain liable for and indemnify Olander for, all income and property tax associated with the sale of the products as contemplated herein.
3. Shipping. Unless otherwise agreed, shipping terms are F.O.B. Seller’s U.S. point of distribution (under U.C.C. shipping terms). All Products must be shipped in accordance with Olander’s routing guide available on its website at Routing Guide or as otherwise agreed by the parties in writing including without limitation, with respect to the required delivery date or other specific terms included in the applicable PO. Shipping charges and insurance shall be paid by Olander unless otherwise agreed by the parties in the applicable PO, and title shall pass to Olander once the products are loaded on the carrier. Seller shall package the products in accordance with standard commercial practices or as otherwise directed by Olander.
4. Delivery. Time is and shall remain of the essence in the delivery of Products ordered by Olander. Products must be delivered by the date specified in the applicable PO. Seller shall notify Olander immediately if at any time it appears that the required delivery date may not be met and shall specify the reasons therefor and the steps being taken to correct the problem and the new anticipated delivery schedule. Olander may, at its option, either accept the new delivery schedule or terminate the order, or excercise any of its other remedies set forth in Section 8 hereof. Olander’s acceptance of late delivery shall not constitute a modification of this Agreement or a waiver of Olander’s right to reject deliveries as set forth herein.
5. Changes. No change in modification, variation or revision of this TCP or any PO, including the quantities and prices contained therein, as applicable, shall be valid unless in writing and signed both parties.
6. Cancellation of Purchase Orders. Olander may at any time terminate a PO in whole or in part upon written notice to Seller. Seller shall not be entitled to a cancellation or restocking fee in the event of a cancelled PO unless otherwise agreed to by the parties prior to Seller’s acceptance of the PO. Any cancellation or restocking fees, which shall be agreed to in writing, shall be Seller’s sole and exclusive remedy with respect to cancelled POs.
7. Inspection and Rejection. All Products are subject to testing and approval by Olander after delivery. Olander may reject any products which do not conform to the warranty provided in Section 8 hereof, or which are late or with respect to which there is an error. In the case of rejection, the remedies set forth in Section 9 hereof shall be available to Olander at its discretion. Exercise of the remedies shall not be exclusive of any other remedies provided in law or equity or which are otherwise available to Olander.
8. Warranty. Seller expressly warrants that (i) the products to be delivered by Seller will conform to the description set forth in each applicable PO and any other specifications provided by Olander, (ii) the products will be merchantable, of good quality and workmanship and free defect, (iii) free and clear of all liens and encumbrances, and (iv) the use of any of the products will not infringe on any third party rights, including, without limitation, any patent, trademark, copyright, trade secret or other intellectual property rights. Seller represents and warrants in performing its obligation under any PO it will be in compliance with all applicable federal, state and local laws, rules and regulations including without limitation 15 C.F.R. 280 (Fastener Quality Act) to the extent applicable. These warranties shall survive acceptance and payment, and run to Olander, its successors, assigns and customers.
9. Remedies. In the event of rejection, breach of the limited warranty set forth in Section 8 hereof, non-delivery, partial delivery, or late delivery or other error in shipment, Olander may at its option (i) cancel the applicable PO without liability therefor, (ii) require Seller to replace the product, (iii) replace the product in the open market after due notice and within a reasonable time and recover from Seller the difference between the market price of the product at the time of replacement and the Purchase Price, or (iv) obtain any other remedy or relief provided by law including, but not limited to, the right to a setoff against any amount Seller is due from Olander or its affiliate companies on any PO or otherwise but subject to the limitations set forth in Section 10 below. Deliveries in excess of those authorized by Olander shall be at Seller’s risk of loss, may be returned to Seller or disposed of by Olander without incurring any liability to Seller and Seller shall pay Olander for all expenses, including transportation expenses, in connection with such deliveries.
10. Limitation of Liability. SELLER SHALL NOT HAVE ANY LIABILITY TO OLANDER FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES OF ANY DESCRIPTION, INCLUDING WITH LIMITATION, LOSS OF REVENUE OR LOST PROFITS, WHETHER ARISING OUT OF WARRANTY (INCLUDING ANY IMPLIED WARRANTIES), BREACH OF CONTRACT, STRICT LIABILITY, NEGLIGENCE, OTHER TORT, OR OTHERWISE, AND REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER SELLER HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. NOT INCLUDING SELLER’S BREACH OF SECTION 13 (CONFIDENTIALITY) OR SELLER’S OBLIGATIONS UNDER SECTION 8 (LIMITED WARRANTY), SECTION 9 (REMEDIES) OR SECTION 11 (INDEMNIFICATION), IN NO EVENT WILL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE PRODUCTS OR SERVICES PROVIDED UNDER THIS AGREEMENT, AS APPLICABLE, EXCEED THE TOTAL AMOUNT PAID BY OLANDER TO SELLER UNDER THIS AGREEMENT (INCLUSIVE OF ALL PO’s) FOR THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ACT OR OMISSION GIVING RISE TO SUCH CLAIM.
(i) Seller shall indemnify and hold harmless Olander and customers of Olander from and against any and all claims, demands, causes of action, actions, liabilities, losses, damages and expenses, including attorneys’ fees (including without limitation actual, general and special damages for injuries or damage to any person or property) arising out of: (a) a breach of any term or condition of any PO by Seller, its employees, agents or representatives, (b) any breach of Seller’s representations, warranties, or obligations hereunder, including, without limitation, any breach of any express warranty provided in Section 8 herein, or (c) any wrongful act or omission of Seller, its employees, agents or representatives hereunder. In any matter to which this paragraph applies.
(ii) In the event Olander makes a claim for indemnification under this TCP, Buyer shall have received from Olander: (a) prompt written notice of such claim (but in any event notice in sufficient time for Buyer to respond without prejudice); (b) the exclusive right to control and direct the investigation, defense, and settlement (if applicable and without prejudice to Olander) of such claim; and (c) all reasonably necessary cooperation from Olander. Buyer may not settle any such claim without Olander’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed.
12. Tools and Materials. Unless otherwise agreed in writing all tools, equipment or material of every description furnished to Seller by Olander or specifically paid for by Olander, and any replacement thereof, or any materials affixed or attached thereto, shall be and remain the personal property of Olander. Such property, and wherever practical each individual item thereof, shall be plainly marked or otherwise adequately indentified as Olander’s property and shall be safely stored separate and apart from Seller’s property.
13. Confidentiality. Seller agrees to: (i) hold Confidential Information (as defined below) in confidence and refrain from disclosing Confidential Information, or transmitting any documents or copies of documents, containing Confidential Information, to any other party except as permitted under the terms of this section; (ii) use Confidential Information only to assist Seller in its supplying the products or services to Olander and (iii) not disclose any Confidential Information except to Seller’s employees and representatives who need such information for the purpose of fulfilling obligations for Olander, provided, however, that Seller shall be responsible for any breach of the terms of this section by them. Seller shall use at least the standard of care with respect to protecting Confidential Information that it accords its own proprietary and confidential information. Seller shall notify Olander if it receives a court order or other legal process commanding production or disclosure of Confidential Information and Seller shall cooperate with and assist Olander in obtaining a protective order. For the purposes of this Agreement, “Confidential Information” means any and all non-public information, in whatever format, regarding Olander and Olander’s business, including, without limitation, product designs and specifications, drawings, manufacturing methods and information, proprietary information, trade secrets, marketing information and plans, customer list and other customer information, that Olander provides to Seller, its employees or Sellers, or that Sellers, its employees, or Sellers learn, encounter, or obtain possession or knowledge of in the course of providing the products or otherwise in connection with this Agreement. Seller’s obligations hereunder shall survive termination of this Agreement for a period of five (5) years, provided such obligation shall remain in force as long as permitted by applicable law as it relates to Olander’s trade secrets.
14. Ownership. Any and all Confidential Information or other intellectual property furnished by Olander to Seller hereunder or any PO is and shall remain the sole property of Olander. Nothing contained herein or in any PO shall grant or otherwise provide Seller with any rights or interest in any such information or intellectual property. In the event that Seller manufactures Product’s based on Olander’s specifications or drawings, Seller acknowledges and agrees that any and all products, designs, derivative works, information and other results of Seller producing and providing products or services (collectively, the “Work Product”), shall be considered “works made for hire” pursuant to 17 U.S.C. § 201 (the Copyright Act) and as such is a work specially commissioned for use by Olander. All worldwide rights, title, and interest in and to any and all Work Product, including, without limitation, each and every discovery, invention or improvement that may be conceived or developed as a result of or in connection with Seller producing and providing the Work Product, shall be the sole property of Olander. Seller hereby agrees to assign, and does hereby assign, to Olander all worldwide rights, title, and interest in and to all such Work Product, including any intellectual property contained therein. Seller shall if requested by Olander execute all documents and perform all other acts necessary, in the discretion of Olander, to evidence Olander’s ownership of the Work Product and the above-mentioned proprietary rights therein.
15. Subcontracting. Seller shall not procure, or contract for the procurement of, any item covered by a PO in completed or substantially completed form, or any service to be performed by Seller, without first securing the written approval of Olander.
16. Events of Default. Seller shall be deemed to be in default hereunder upon a breach of any of the terms of this Agreement or of any PO if Seller fails to timely cure said breach within five (5) day after written notice from Olander (email sufficient). Seller further shall be deemed to be in default hereunder upon the occurence of any of the following events, or of any other comparable event; insolvency of the Seller; Seller’s filing of a voluntary petition in bankruptcy; the filing of any involuntary petition to have Seller declared bankrupt provided it is not vacated within thirty (30) days from the date of filing; the appointment is not vacated within thirty (30) days from the date of such appointment; or the execution by Seller of an assignment for benefit of creditors. Upon default by Seller hereunder, Olander may terminate any or all outstanding POs without liability immediately upon written notice to Seller (email sufficient), and exercise any rights and remedies as may be provided hereunder or by operation of applicable law or at equity.
17. Assignment. Seller may not assign a PO or this Agreement or any of its rights or obligations hereunder or thereunder to any third party without Olander’s prior written consent. For purposes of this provision, a merger, stock sale or other transfer by operation of law shall be deemed an “assignment” for which consent is required hereunder.
18. Governing Law and Forum. This Agreement will be interpreted according to the laws of the State of Washington without regard to its conflict of laws provisions. The parties expressly disclaim the applicability of the United Nations Convention on Agreements for the International Sale of Goods. Seller hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of Washington and of the United States of America located in King County, Washington for any proceeding relating to this Agreement (and agrees not to commence any proceeding relating thereto except in such courts). Seller hereby irrevocably and unconditionally waives any objection to the laying of venue, and agrees not to claim that any proceeding brought in any such court has been brought in an inconvenient forum.
19. Severability. In the event a provision of this Agreement is determined to be invalid, illegal or unenforceable, it will not affect the validity, legality or enforceability of any other provision of the Agreement and the parties agree that the remaining provisions will be deemed to be in full force and effect.
20. Modifications, Complete Agreement. No modifications of the Agreement will be effective unless in writing and signed by authorized representatives of the parties. No course of performance or any course of dealing or usage of trade shall vary the express terms hereof. Except as otherwise expressly set forth herein, this Agreement constitutes the complete and exclusive statement of the agreement between the parties regarding the subject matter hereof, and supersedes all proposals, oral or written, and all other communications between the parties relating to the subject matter of the Agreement.
21. Attorney Fees. In the event either party hereto shall resort to action at law or equity for the redress of a breach of this TCP or any PO, the prevailing party shall be entitled to an award of all costs and expenses incurred during such action, including reasonable attorneys’ fees and disbursements.
22. Force Majeure. Seller will not be liable to Buyer for any delay or failure of delivery of any Products or other nonperformance caused in whole or part by any contingency or event beyond Seller’s reasonable control, including, without limitation, acts of any government, war, riots, acts of God, machinery breakage, or any shortage of or inability to secure labor, labor strikes, transportation facilities, fuel energy, raw materials, supplies, or machinery at reasonable prices or from regular sources. In the event of the occurence of any of the foregoing, Seller may distribute its available goods and material among its Buyers on such a basis as Seller deems fair and equitablem, without liability to Buyer. If such an event results in a continuous delay of fourteen (14) days either party may terminate this Agreement upon written notice to the other party (email sufficient) without incurring any liability, other than Olander’s obligation to pay for all outstanding invoices for Products shipped and/or received prior to said termination date.