1. Definitions:

1. 1. “Purchaser” is defined as The Paquin Company, its parent, subsidiaries, and each of its affiliates and their respective transferees, successors, and assigns, along with their respective directors, officers, agents, and employee.
   2. “Seller” is defined as the person or entity providing Products or Services to purchaser, along with their respective directors, officers, agents, and employees.
   3. “Purchaser’s Office” is defined as Purchaser’s address located at 9286 Mercantile Drive, Mentor, Ohio 44060. If the location of the office changes, upon reasonable notice to Seller, “Purchaser’s Office” will be deemed amended to reflect the address of the new location.
   4. “Agreement” is defined as the Terms and Conditions contained herein.
   5. “Products” is defined as any equipment, items, components, or materials sold by Seller.
   6. “Services” is defined as any services provided by Seller.
   7. “Order” is defined as the purchase order by Purchaser requesting the Products and/or Services, to which this Agreement is attached or expressly incorporated by reference (collectively, the “Order”), including any amendments, supplements, specifications, and other documents referred to in this Order.

2. Acceptance:

Purchaser’s acceptance of any offer or counteroffer made by Seller or Seller’s acceptance of any Order, offer, or counteroffer made by Purchaser is materially Agreement, such objection must be made in writing and received by Purchaser’s Office to be deemed to be Purchaser’s acceptance of this Agreement. Purchaser’s failure to object to any terms or conditions in any oral or written communication from Seller, at whatever considered a waiver of this Agreement. Any terms and conditions inconsistent with, or additional to, those in this Agreement are expressly rejected, however any addition, change, modification, extension, renewal, ratification, waiver or recission of this Agreement, or any of the provisions hereof, shall be binding on Seller and Purchaser if it is clearly described in writing and signed by both Seller and Purchaser. All previous negotiations, conversations, and understandings between Seller and Purchaser are merged herein.

 

3. Price:

All prices are firm and may not be subject to change, except if there is a reduction in price on part, material, labor, or freight rates of the Products or Services.

 

4. Payment:

Payment for any undisputed amount shall be made in net U.S. Dollars, within 45 days from the later of (i) the date of the Services and shipment(s) of the Products or (ii) the date Purchaser receives an application for payment of the Products and/or Services, unless otherwise agreed in writing by Seller and Purchaser. For international transactions, all payments shall be made as agreed to by Seller and Purchaser. All sums payable by Purchaser to Seller are payable and deemed accepted if delivered to the last known address of Seller by Purchaser. In addition to the requirements of this paragraph, if this Agreement is regarding an international transaction, payment shall be made via wire transfer, unless Purchaser agrees otherwise in writing. Payment may be temporarily withheld and suspended, tolling the 45 day period above, in the event of: a) the filing or threatened filing of a mechanic’s lien on Products provided by Seller, b) the failure of Seller to make payments properly to suppliers or for labor, materials, supplies, appliances, fixtures, or equipment relating to the Services or Products, or c) Seller’s failure to comply with its material obligations under this Agreement.

 

5. Delivery: 

TIME IS OF THE ESSENCE. Delivery shall be on a CIP or CIF basis (Incoterms 2010). If Seller fails to deliver all the Products and related documents (including, but not limited to, drawings, certificates, manuals and quality documents) and/or complete the Services as scheduled, Seller shall pay Purchaser or offset one percent (1%) of the total amount of the Order per week, or pro rata for part of a week, of delay, up to a maximum aggregate of fifteen percent (15%) of the total amount of the Order. The parties agree that such amounts, if assessed, are a reasonable pre-estimate of the damages Purchaser will suffer as a result of delay based on circumstances existing at the time the Order was issued, with the exception of any documented additional damages in connection therewith, if any. In the sole discretion of Purchaser, the Purchaser may waive liquidated damages under this Agreement, in which case Purchaser shall be entitled to recover damages that it incurs as a result of Seller’s failure to perform as scheduled and Purchaser shall be entitled to pursue any and all remedies available at law or equity. In no way will these terms affect Purchaser’s right to termination under this Agreement.

 

6. Inspection and Rejection: 

Upon reasonable notice by Purchaser, all goods, materials and services related in any way to the Products and Services of an Order (including without limitation raw materials, components, intermediate assemblies, work in process, tools and end products) shall be subject to reasonable inspection and test by Purchaser, or its customer, or their representatives, at all reasonable times and places, including sites where the goods and services are created or performed, whether they are at premises of Seller, Seller’s suppliers or elsewhere. If any inspection or test is made on Seller’s or its suppliers’ premises, Seller, shall, without additional charge, provide all reasonable access and assistance for the safety and convenience of the inspectors. If specific tests, inspection and/or witness points are included in the Order, the Products shall not be shipped without an inspector’s release, or a written waiver of test/inspection/witness with respect to each such point. Purchaser’s failure to inspect, accept, reject or detect defects by inspection shall neither relieve Seller from responsibility for such Products or Services that are not in accordance with the Order’s requirements nor impose liabilities on Purchaser. If any of the Products and/or Services furnished are found within a reasonable time after delivery to be defective or otherwise not in conformity with the requirements of the Order, then Purchaser, may in addition to any other rights, remedies and choices it may have by law, equity, or this Agreement: a) require Seller to immediately re-perform any defective portion of the Services and/or require Seller to immediately repair or replace non-conforming Products with Products that conform to all requirements of the Order; b) take action as may be required to cure all defects and/or bring the Products and/or Services into conformity with all requirements of the Order, in which event, all related costs and expenses shall be on Seller’s account; c) withhold payment for such non- conforming or defective Products and/or Services; d) and reject and return all or any portion of the Products delivered in the Order.

 

7. Licenses and Taxes:

The Products and Services in an Order shall include federal, state, or local sales, use, privilege, occupation or excise taxes or any other taxes applicable to the shipment(s) of the Products, the Products, and the Services (including, without limitation, any and all non-U.S. taxes, duties, levies, or assessments). Seller is responsible for and shall pay all taxes levied for the shipment(s) of the Products. Seller is responsible for and shall provide for all permits, licenses, and certificates necessary for the installation and operation of the Products or for any Services provided by Seller.

 

8. Intellectual Property:

Seller represents and warrants that any and all royalties for the unlimited use of the Products by Purchaser are included in the Order. Each party shall retain any right, title or interest in its respective intellectual property rights that have been developed, acquired, or obtained prior to the effective date of the Order. Purchaser shall, however, be granted an irrevocable, worldwide, perpetual, non-exclusive royalty-free license, with the right to grant sub-license and to copy and use supplier group’s background intellectual property to the extent necessary or desirable for Purchaser to use the Products for any purpose. Any Intellectual property which arises in furtherance of the performance of the Order may be considered “works made for hire” and shall vest wholly and exclusively in Purchaser. SELLER WARRANTS THAT THERE IS NO INFRINGEMENT OF ANY KIND WHATSOEVER OF ANY PATENT, TRADEMARK, COPYRIGHT, REGISTERED DESIGN OR OTHER INTELLECTUAL PROPERTY RIGHTS THAT ARISE FROM OR RESULT FROM THIS AGREEMENT OR ITS PERFORMANCE THEREOF. IN THE EVENT OF ANY BREACH OF THE WARRANTY ABOVE, PURCHASER SHALL BE ENTITLED TO INDEMNIFICATION BY SELLER AGAINST ANY AND ALL LOSSES, DAMAGES, COSTS, EXPENSES AND EXPENDITURE SUFFERED OR INCURRED BY PURCHASER ARISING FROM OR RELATING TO SUCH BREACH. THIS INDEMNITY OBLIGATION WILL CONTINUE AFTER THE TERMINATION OF THIS AGREEMENT.

 

9. Assignment:

Seller agrees Purchaser may assign or sublet this Agreement, in whole in in part, without Seller’s notice or consent.

 

10. Term / Change of Order:

This Agreement shall stay in force throughout the period that Seller is providing Products and Services for Purchaser and the warranty period for such Products and Services. The Agreement shall be considered renewed on each occasion that a new Order is accepted by Seller pursuant to the terms of this Agreement. Purchaser may make changes to an Order by issuing written notice to Seller. If such change causes an increase or decrease in the price or time of delivery, Purchaser will negotiate the appropriate adjustment(s) with Seller.

 

11. Seller’s Default / Cancellation / Termination:

Termination for Cause: Seller is in default if: (a) Seller fails to perform in accordance with this Agreement, Purchaser notifies Seller of the failure and Seller fails to rectify the failure within seven (7) days after receiving notice from Purchaser; (b) Seller makes an assignment for the benefit of creditors or bankruptcy or insolvency proceedings are instituted by or against Seller; or (c) at any time in Purchaser’s sole reasonable judgment, Seller’s financial or other condition or progress on the Agreement shall be such as to endanger timely performance. In the event of Seller’s default – and in addition to all other remedies under law or equity – Purchaser may exercise any one or more of the following remedies: (a) terminate the Agreement without liability, except the obligation to pay the price for conforming Services and Products received by Purchaser prior to termination, or accepted in accordance with the Agreement and not previously paid for, (b) recover from Seller any and all increased costs and other damages relating to such default and

(c) recover attorneys’ fees and/or costs of a suit, plus interest. If Purchaser terminates the Agreement for cause and it is later determined that Seller was not in default, it shall be deemed a termination for convenience pursuant to below.

Termination for Convenience: Purchaser may terminate an Order at any time for its own convenience by providing  written notice to Seller. Upon  such  termination, Seller’s performance under such Order shall cease and Seller shall be entitled to receive, as its sole remedy in connection with such termination, the cost of the Services properly performed, and all non-defective Products actually delivered or being delivered on the date of termination. Seller will not be entitled to receive payment for profit or overhead in connection with Products not delivered. Termination shall not relieve Seller of any of its ongoing obligations and liabilities in connection with Services and Products delivered hereunder, including, but not limited to, warranty obligations and correction of defects.

 

12. Notice, Applicable Law, and Forum:

Purchaser shall not be liable for any claims (direct or indirect) which are not presented to Purchaser, at Purchaser’s Office, in writing, within 181 days of the earlier of either the date of loss or the date of the incident giving rise to the claim. To the extent that maritime law does not apply, Seller and Purchaser agree that the law of the State of Ohio shall govern this Agreement and all lawsuits related to this Agreement and or the Products or Services shall be filed only in Lake County, Ohio and Seller and Purchaser hereby submit to the personal jurisdiction of Ohio. Purchaser and Seller hereby disclaim the applicability of any international convention, law, or treaty, including without limitation, the United Nations Convention for the International Sale of Goods (“CISG”) to this Agreement. During the pendency of any dispute, the parties shall continue to perform the obligations imposed upon them by this Agreement to the fullest extent possible, consistent with the positions with respect to the dispute.

 

13. Defense and Indemnity:

SELLER AGREES TO RELEASE, DEFEND, INDEMNIFY AND HOLD PURCHASER HARMLESS FROM AND AGAINST ANY AND ALL LOSSES, LIABILITIES, DAMAGES, DEMANDS, CLAIMS (INCLUDING PERSONAL INJURY AND WRONGFUL DEATH), LITIGATION, DEFENSES, SUITS, PROCEEDINGS, OBLIGATIONS, ACTIONS, JUDGMENTS, CAUSES OF ACTION, AND EXPENSES (INCLUDING WITHOUT LIMITATION, THE REASONABLE FEES OF LEGAL COUNSEL, INVESTIGATORS AND ACCOUNTANTS), BASED ON CLAIMS OF PERSONAL INJURY OR DEATH BY ANYONE OR FOR DAMAGE TO PROPERTY ARISING OUT OF OR RELATED IN ANY WAY TO THE PRODUCTS OR SERVICES OF THIS AGREEMENT, WHETHER BY THE ACTS OR OMISSIONS OF PURCHASER OR OF SELLER, INCLUDING BUT NOT LIMITED TO PURCHASER’S NEGLIGENCE AND/OR GROSS NEGLIGENCE, ACTIVE OR PASSIVE AND PARTIAL OR SOLE, ACTS OF MALICE, STRICT LIABILITY, CONTRACTUAL LIABILITY, ALLEGATIONS OF BREACH OF ANY IMPLIED WARRANTY INCLUDING MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER LEGAL FAULT. SUCH DEFENSE AND INDEMNITY AND HOLD HARMLESS AGREEMENT SHALL INCLUDE, WITHOUT LIMITATION, ANY LIABILITY TO OR ACTION UNDERTAKEN BY ANY GOVERNMENTAL AUTHORITY OR AGENCY (INCLUDING, WITHOUT LIMITATION, THE UNITED STATES GOVERNMENT, STATE GOVERNMENT OR OTHER THIRD PARTIES) UNDER ANY APPLICABLE INTERNATIONAL, FEDERAL, OR STATE LAWS OR GOVERNMENTAL ORDERS, RULES, AND REGULATIONS. NOTWITHSTANDING, ANYTHING CONTAINED ABOVE, IN THE EVENT THAT AN INJURY OR ACCIDENT CAUSING A CLAIM, DAMAGE, LOSS OR LIABILITY OCCURS WHICH IS SUBJECT TO THE LAWS OF ANY JURISDICTION THAT PROHIBITS OR LIMITS SELLER’S ABILITY TO INDEMNIFY PURCHASER, THEN, IF SUCH LAW MUST BE APPLIED, SELLER’S LIABILITY SHALL EXIST TO THE FULL EXTENT ALLOWED BY THE LAW OF SUCH JURISDICTION, AND SELLER AGREES TO CARRY THE MAXIMUM AMOUNT OF INSURANCE WHICH MAY BE ALLOWED OR REQUIRED BY THE LAW OF SUCH JURISDICTION FOR THE PROTECTION OF PURCHASER AGAINST SUCH LOSS OR LIABILITY. PURCHASER SHALL IN NO EVENT BE LIABLE TO SELLER OR ANY OTHER PERSON OR ENTITY FOR LOSS OF OR DAMAGE TO OR LOSS OF USE OF FACILITIES, EQUIPMENT, OR OTHER PROPERTY, WHETHER OF SELLER OR THIRD PARTIES, LOSS OF REVENUE, LOSS OF ANTICIPATED PROFITS, OR OTHER INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, OR CLAIMS OF OTHER CLAIMANTS RESULTING FROM OR ARISING OUT OF THIS AGREEMENT HOWEVER THE SAME MAY BE CAUSED, INCLUDING THE FAULT, NEGLIGENCE OR LIABILITY WITHOUT FAULT OF PURCHASER THE LIMIT OF LIABILITY AND INDEMNITY OBLIGATIONS IN THIS PARAGRAPH WILL CONTINUE AFTER THE TERMINATION OF THIS AGREEMENT.

 

14. Warranty:

Seller WARRANTS that the Products and Services are fit for the use intended, are merchantable, and are free from all defects in design, workmanship and material, and are in strict accordance with any plans or specifications whether provided by Purchaser or Seller, for a period of two (2) years from the date of delivery or performance (the “Warranty Period”), and Seller shall repair or replace all defects discovered within the Warranty Period at Seller’s sole cost and expense, or at Purchaser’s option, reimburse Purchaser for cost of remedying such defects or non-compliance. All costs and damages in connection with defective or non-complying Products shipped or delivered by Seller or relating to the return thereof shall be borne by Seller. Any Products or Services that are repaired, rectified, or replaced by Seller under the foregoing warranty shall be warranted to the later of (i) the Warranty Period or (ii) one (1) year from the date of repair, rectification, or replacement. The foregoing warranty shall extend to and be fully enforceable by Purchaser and its customers and shall survive any termination of the Agreement. For third party manufactured items (including those manufactured or provided by any subcontractor of Seller), in addition to the warranty provided by Seller hereunder, Seller will assign all applicable manufacturer’s warranty to Purchaser and its customers, as applicable. If any such manufacturer’s warranty is not assignable, Seller shall pursue such warranty claim with the manufacturer on Purchaser’s behalf. The warranties provided under this Agreement are not exclusive and shall be in addition to all other warranties, representations or guarantees (whether express or implied) otherwise provided in this Agreement, an Order, or otherwise at law or in equity.

 

15. Insurance:

Seller shall at Seller’s expense obtain and maintain during the term of this Agreement the following insurance coverage with good and solvent insurers approved by Purchaser, rated A – or better by AM Best: (i) Comprehensive General Liability Insurance: With broad form personal injury, premises liability, contractual liability, products liability, and completed operations coverage with limits of liability of $1,000,000.00 per occurrence.

(ii) Excess / Umbrella Liability Coverage: In excess of the Comprehensive General Liability Insurance coverage, with limits of $1,000,000.00 over primary limits. (iii) Workmen’s Compensation and Employer’s Liability Insurance or equivalent required by applicable law. (iv) Comprehensive automobile liability coverage of $1,000,000 per occurrence. All such policies shall be endorsed to name Purchaser as an additional insured, with all such insurance being primary, and shall contain full waivers of subrogation in favor of Purchaser. Seller shall furnish certificates of insurance in standard Acord form to Purchaser and upon policy renewals, to evidence the existence of required coverage. Seller shall not materially change or cancel insurance coverage without providing Purchaser with thirty (30) days prior written notice. Other than the umbrella liability policy, any deductible or self-insured retention shall be declared to and approved by Purchaser. Seller shall remain responsible for payment of any deductibles for insured claims under its policies.

 

16. Limitation of Damages:

Seller agrees that any claim against Purchaser (whether arising in contract, tort, negligence or otherwise) for liability due to interest, loss, damage, expense, or delay is limited to an aggregate amount equal to the lesser of FIVE HUNDRED dollars ($500.00), or the amount declared by Seller, and Seller hereby releases and undertakes to defend and indemnify Purchaser from all further liability, loss, cost and expense in excess of such amount, Should Seller elect to declare an amount greater than five hundred dollars ($500.00), Seller must reduce Purchaser’s cost for the Products or Services in an amount to be determined by the Purchaser as is reasonable in order to increase the maximum amount of Purchaser’s liability up to the declared amount. However, such option must be exercised by specific written agreement between Seller and Purchase prior to performance of the Order. PURCHASER SHALL IN NO EVENT BE LIABLE TO SELLER OR ANY OTHER PERSON OR ENTITY FOR LOSS OF REVENUE, LOSS OF ANTICIPATED PROFITS, OR OTHER INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER RESULTING FROM OR ARISING OUT OF THIS AGREEMENT.

 

17. Return of Stock:

Other than any special arrangements made between Purchaser and Seller, one time each year, any Products purchased by Purchaser within the prior twelve (12) month period which have not been used from the time of purchase by Purchaser may be returned by Purchaser to Seller. Credit for returned Products will be the purchase price for the Products less a 15% restocking fee.

 

18. Confidentiality:

Unless there is an existing agreement between the parties regarding confidentiality or non-disclosure, Seller shall not, publicly or to third parties, divulge technical data, prices or similar information relating to this Agreement. The foregoing obligation of confidentiality shall not apply to information available to the public through sources independent of or through no fault of Seller, information which is received by Seller from a third party who has the right to disclose same, or information which was in Seller’s possession prior to receipt of Purchaser’s information.

 

19.  Severability, Headers, Waiverability:

If any provision of this Agreement is held to be unenforceable, this Agreement shall be deemed to be amended to the extent necessary to make this Agreement enforceable. In the event any provision is unenforceable, the remaining provisions remain in full force and effect. The headings of the paragraphs in this Agreement are for convenience only and are not a part of the Agreement. No failure by either Seller or Purchaser to exercise, or to delay in exercising, any rights under this Agreement shall be deemed a waiver of such rights, either with respect to the breach giving rise to such rights or any subsequent breach.