Vendor Terms & Conditions

Midco International, Inc. and emberglo

standard Purchase Terms and Conditions

for vendors

1. Applicability.

a. This purchase order is an offer by Midco International, Inc. (the “Buyer”) for the purchase of the goods specified on the face of the purchase order (the “Goods”) from the party to whom the Buyer purchase order is addressed (the “Seller”) in accordance with and subject to these terms and conditions (the “Terms”); together with the terms and conditions on the face of the purchase order, (the “Order”). This Order, together with any documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the Order, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the Order. The Order expressly limits Seller’s acceptance to the terms of the Order. These Terms prevail over any terms or conditions contained in any other documentation and expressly exclude any of Seller’s general terms and conditions of sale or any other document issued by Seller in connection with this Order.

b. These Terms apply to any repaired or replacement Goods provided by Seller hereunder.

c. Buyer is not obligated to any minimum purchase or future purchase obligations under this Order.

2. Acceptance.

a. This Order is not binding on Buyer until Seller accepts the Order in writing. If Seller does not accept the Order in writing or provide written notice that it has commenced performance within 5 business days of Seller’s receipt of the Order, this Order will lapse. Buyer may withdraw the Order at any time before Seller accepts it.

b. Buyer shall be deemed to have accepted Goods procured hereunder only after actual inspection for conformity or the passage of ten (10) days from receipt, whichever occurs first.

3. Delivery Date. Seller shall deliver the Goods in the quantities and on the date(s) specified in this Order or as otherwise agreed in writing by the parties (the “Delivery Date”). Buyer shall be deemed to have received Goods procured hereunder when such Goods have been deposited at the Buyer’s dock and all bills of lading or other shipping papers which require signature have been signed. Timely delivery of the Goods is of the essence. If Seller fails to deliver the Goods in full on the Delivery Date, Buyer may terminate the Order immediately by providing written notice to Seller and Seller shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses directly attributable to Seller’s failure to deliver the Goods on the Delivery Date. Buyer has the right to return any Goods delivered prior to the Delivery Date at Seller’s expense and Seller shall redeliver such Goods on the Delivery Date.

4. Quantity. If Seller delivers more than 1% (one percent) of the quantity of Goods ordered, Buyer may reject all or any excess Goods. Any such rejected Goods shall be returned to Seller at Seller’s risk and expense. If Buyer does not reject the Goods and instead accepts the delivery of Goods at the increased or reduced quantity, the Price for the Goods shall be adjusted on a pro-rata basis.

5. Delivery Location. All Goods shall be delivered to the address specified in this Order (the “Delivery Location”) during Buyer’s normal business hours or as otherwise instructed by Buyer.

6. Shipping Terms. Delivery shall be made in accordance with the terms on the face of this Order. Seller shall give written notice of shipment to Buyer when the Goods are delivered to a carrier for transportation. Seller shall provide Buyer all shipping documents, including the commercial invoice, packing list, air waybill/bill of lading and any other documents necessary to release the Goods to Buyer within one (1) business day after Seller delivers the Goods to the transportation carrier. The Order number must appear on all shipping documents, shipping labels, bills of lading, air waybills, invoices, correspondence and any other documents pertaining to the Order.

7. Title and Risk of Loss. Title passes to Buyer upon delivery of the Goods to the Delivery Location. Seller bears all risk of loss or damage to the Goods until delivery of the Goods to the Delivery Location. Seller warrants that the Goods procured hereunder are free from all liens, claims or encumbrances.

8. Packaging. All Goods shall be packed for shipment according to Buyer’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. All deliveries shall include a packing list indicating the contents of each package. Seller must provide Buyer prior written notice if it requires Buyer to return any packaging material. Any return of such packaging material shall be made at Seller’s expense.

9. Amendment and Modification. No change to this Order is binding upon Buyer unless it is in writing, specifically states that it amends this Order and is signed by an authorized representative of Buyer.

10. Inspection and Rejection of Nonconforming Goods. The Buyer has the right to inspect the Goods on or after the Delivery Date. Buyer, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines the Goods are nonconforming or defective. If Buyer rejects any portion of the Goods, Buyer has the right, effective upon written notice to Seller, to: (a) terminate or rescind the Order in its entirety; (b) accept the Goods at a reasonably reduced price; or (c) reject the Goods and require replacement of the rejected Goods. All Goods that are rejected for nonconformity with the terms and conditions of this Order are rejected at Seller’s expense and shall be returned at Seller’s risk of loss and expense. If Buyer requires replacement of the Goods, Seller shall, at its expense, promptly replace the nonconforming 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 Goods. If Seller fails to timely deliver replacement Goods, Buyer may replace them with goods from a third party and charge Seller the cost thereof and terminate this Order for cause pursuant to Section 20. Any inspection or other action by Buyer under this Section shall not reduce or otherwise affect Seller’s obligations under the Order, and Buyer shall have the right to conduct further inspections after Seller has conducted its remedial actions.

11. Price. The price of the Goods is the price stated in the Order (the “Price”). If no price is included in the Order, the Price shall be the price set out in Seller’s published price list in force as of the date of the Order. Unless otherwise specified in the Order, the Price includes all packaging, transportation costs to the Delivery Location, insurance, customs duties and fees and applicable taxes, including, but not limited to, all sales, use or excise taxes. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Buyer.

12. Most Favored Customer. Seller represents and warrants that the price for the Goods is the lowest price charged by Seller to any of its external buyers for similar volumes of similar Goods. If Seller charges any other buyer a lower price, Seller must apply that price to all Goods under this Order. If Seller fails to meet the lower price, Buyer, at its option, may terminate this Order without liability pursuant to Section 20.

13. Payment Terms. Seller shall issue an invoice to Buyer on or any time after the completion of delivery and only in accordance with the Terms. Buyer shall pay all properly invoiced and undisputed amounts due to Seller within thirty (30) days after Buyer’s receipt of such invoice, except for any amounts disputed by Buyer in good faith. All payments hereunder must be in US dollars. In the event of a payment dispute, Buyer shall deliver a written statement to Seller no later than thirty (30) days prior to the date payment is due on the disputed invoice listing all disputed items and providing a reasonably detailed description of each disputed item. Amounts not so disputed are deemed accepted and must be paid, notwithstanding disputes on other items, within the period set forth in this Section 13. The parties shall seek to resolve all such disputes expeditiously and in good faith. Seller shall continue performing its obligations under the Order notwithstanding any such dispute.

a. Buyer is exempt from payment of all Federal or State sales taxes. Exemption Certificates will be furnished upon request.

14. Setoff. Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Buyer to Seller under the Order.

15. Warranties. Seller warrants to Buyer that for a period of twelve (12) months from the Delivery Date, all Goods will: (a) be free from any defects in workmanship, material and design; (b) conform to applicable specifications, drawings, designs, samples and other requirements specified by Buyer; (c) be fit for their intended purpose and operate as intended; (d) be merchantable; (e) be free and clear of all liens, security interests or other encumbrances; and (f) not infringe or misappropriate any third party’s patent or other intellectual property rights. These warranties survive any delivery, inspection, acceptance or payment of or for the Goods by Buyer. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Buyer’s discovery of the noncompliance of the Goods with the foregoing warranties. If Buyer gives Seller notice of noncompliance with this Section, Seller shall, at its own cost and expense, promptly replace or repair the defective or nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods to Seller and the delivery of repaired or replacement Goods to Buyer.

a. Seller expressly warrants that all Goods supplied hereunder shall be merchantable in accordance with the Uniform Commercial Code, Section 2-314 and the Illinois Code, Section 554.2314.

16. General Indemnification. To the fullest extent allowed by law, Seller shall defend, indemnify and hold harmless Buyer, the State of Illinois, and the Board of Directors and Buyer’s subsidiaries, affiliates, successors or assigns and its respective directors, officers, shareholders, agents and employees and Buyer’s customers (collectively, “Indemnitees”) from and against any and all loss, injury, death, damage, 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 and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with the products purchased from Seller or Seller’s (including its partners’, directors’, officers’, employees’, licensees’, subcontractors’ or agents’), negligence, omissions, willful misconduct or breach of the Terms. Seller shall not enter any settlement without Buyer’s or Indemnitee’s prior written consent.

17. Intellectual Property Indemnification. Seller shall, at its expense, defend, indemnify and hold harmless Buyer, Buyer’s assignees and any Indemnitee from and against any and all Losses arising out of or in connection with any claim that Buyer’s or Indemnitee’s use or possession of the Goods infringed or misappropriates the patent, trade names, trademark, copyright, trade secret or other intellectual property right of any third party by reason of sale or use of any goods purchased hereunder. Buyer shall promptly notify Seller of any such claim. In no event shall Seller enter any settlement without Buyer’s or Indemnitee’s prior written consent.

18. Insurance. During the term of the Order and for a period of three (3) years thereafter, Seller shall, at its own expense, maintain and carry insurance in full force and effect which will protect Buyer from claims set forth in Sections 16 and 17 above which may arise out of Seller’s activities (operations or completed operations, products or services) whether such activities are by the Seller or Seller’s employees, or agents or subcontractors and which includes, but is not limited to:

a. Workers Compensation (compliance with Illinois law). Employers Liability (no less than $500,000 per accident for bodily injury, and $500,000 per employee and per policy limit for disease);

b. Commercial General Liability (no less than $1,000,000 per occurrence);

c. Automobile Liability (no less than $1,000,000 each accident limit);

d. Umbrella Liability (no less than $1,000,000 per occurrence); and

e. Professional Errors and Omissions (if professional services are provided).

All insurance shall be issued by insurance companies authorized to engage in business in the State of Illinois, with an A.M. Best or equivalent financial rating of A-, VII or better.

Prior to the provision of products or services under this Order, Seller shall provide Buyer with a certificate of insurance from Seller’s insurer evidencing the insurance coverage specified in this Order. The certificate of insurance shall be endorsed to name Buyer as additional insured and shall provide for a waiver of subrogation in favor for the same. Seller shall provide Buyer with thirty (30) days’ advance written notice in the event of non-renewal, cancellation or material change in Seller’s insurance policy. Except where prohibited by law, Seller shall require its insurer to waive all rights of subrogation against Buyer’s insurers and Buyer or the Indemnitees.

Seller’s policies shall be primary over Buyer’s policies (if any) and shall provide for severability of interests. Buyer reserves the right to waive or reduce the insurance requirements at Buyer’s sole discretion.

19. Compliance with Law. Seller is following and shall comply with all applicable laws, regulations and ordinances. Seller has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to conduct its obligations under the Order. Seller shall comply with all export and import laws of all countries involved in the sale of Goods under this Order. Seller assumes all responsibility for shipments of Goods requiring any government import clearance. Buyer may terminate this Order if any government authority imposes antidumping duties, countervailing duties or any retaliatory duties on the Goods.
20. Termination. Buyer may terminate or cancel this Order, in whole or in part, at any time with or without cause on thirty (30) days’ prior written notice to Seller. In addition to any remedies that may be provided under these Terms, Buyer may terminate this Order with immediate effect upon written notice to the Seller, either before or after the acceptance of the Goods, if Seller has not performed or complied with any of these Terms, in whole or in part. If the Seller becomes insolvent, files a petition for bankruptcy or commences or has proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors commenced against it, then the Buyer may terminate this Order upon written notice to Seller. If Buyer terminates the Order for any reason, Seller’s sole and exclusive remedy is payment for the Goods received and accepted by Buyer prior to the termination.
21. Limitation of Liability. Nothing in this Order shall exclude or limit (a) Seller’s liability under Sections 16, 17, 18 and 23 hereof, or (b) Seller’s liability for fraud, personal injury or death caused by its negligence or willful misconduct.
22. Waiver. No waiver by any party of any of the provisions of the Order shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the Order, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the Order shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
23. Confidential Information. All non-public, confidential or proprietary information of the Buyer, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Buyer to Seller, 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 the Order is confidential, solely for the use of performing the Order and may not be disclosed or copied unless authorized by Buyer in writing. Upon Buyer’s request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to the Seller at the time of disclosure; or (c) rightfully obtained by the Seller on a non-confidential basis from a third party.
    • Public Records. The laws of the State of Illinois require procurement records to be made public unless exempted by the Code of Illinois.
24. Force Majeure. No party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached this Order, for any failure or delay in fulfilling or performing any term of this Order, 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(s)”): (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this Order; and (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within seven (7) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall 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 after the removal of the cause. If the Impacted Party’s failure or delay remains uncured for a period of thirty (30) consecutive days following written notice given by it under this Section 24, the other party may thereafter terminate this Order upon seven (7) days’ written notice.
25. Assignment. Neither party shall assign, transfer, delegate or subcontract any of its rights or obligations under the Order to a third party without the prior written consent of the other. Any purported assignment or delegation in violation of this Section shall be invalid. No assignment or delegation shall relieve the Seller of any of its obligations hereunder.
    • For good cause and as consideration for executing this agreement, Seller, through its duly authorized agent, conveys, sells, assigns, and transfers to the State of Illinois all rights, title, and interest in and to all causes of action it may now or hereafter acquire under the anti-trust laws of the United States and the State of Illinois relating to the subject of this Order.
26. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in the Order 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 or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from this Order.
27. No Third-Party Beneficiaries. This Order 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 these Terms.
28. Governing Law. All matters arising out of or relating to this Order shall be governed by and construed in accordance with the internal laws of the State of Illinois without giving effect to any choice or conflict of law provision or rule (whether of the State of Illinois or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Illinois.
29. Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or relating to this Order shall be instituted in the federal courts of the United States of America or the courts of the State of Illinois in each case located in the City of Chicago and County of Cook, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
30. Arbitration. The parties shall attempt to resolve all disputes between the parties arising out of or relating to this Order amicably through good faith discussions upon the written request of any party.  In the event that any such dispute cannot be resolved thereby within a period of fourteen (14) days after such notice has been given (the last day of such 14 day period being herein referred to as the “Arbitration Date”), such dispute, controversy or claim arising out of or relating to this Order or to a breach thereof, including its interpretation, performance or termination, shall be finally resolved by confidential arbitration in Chicago, Illinois, using the English language in accordance with the Arbitration Rules and Procedures of the American Arbitration Association (“AAA”) then in effect, by one or more commercial arbitrators with substantial experience in resolving complex commercial contract disputes involving software and technology, who may or may not be selected from the appropriate list of AAA arbitrators. If the parties cannot agree upon the number and identity of the arbitrators within fifteen (15) days following the Arbitration Date, then a single arbitrator shall be selected on an expedited basis in accordance with the Arbitration Rules and Procedures of AAA.  The arbitrator(s) shall have the authority to grant specific performance and to allocate between the parties the costs of arbitration (including service fees, arbitrator fees and all other fees related to the arbitration) in such equitable manner as the arbitrator(s) may determine.  The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith.  Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be.  Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief.
31. Cumulative Remedies. The rights and remedies under this Order are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
32. Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of this Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Order, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
33. Severability. If any term or provision of this Order is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term, provision of this Order, invalidate, or render unenforceable such term or provision in any other jurisdiction.
34. Survival. Provisions of this Order which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Order including, but not limited to, the following provisions: Setoff, Warranties, General Indemnification, Intellectual Property Indemnification, Insurance, Compliance with Laws, Confidentiality, Governing Law, Submission to Jurisdiction, Arbitration and Survival.
35. Debarred, Suspended, and Ineligible Status. Seller certifies that it has not been debarred, suspended, or declared ineligible as defined in the Federal Acquisition Regulation (FAR) 48 C.F.R. Ch.1 Subpart 9.4. Seller will immediately notify Buyer’s Purchasing Department if Seller is placed on the Consolidated List of Debarred, Suspended, and Ineligible Contractors.
36. Clean Air and Water Certification. Seller certifies by filling this order that its facility(s) is not on the Environmental Protection Agency (EPA) List of violating Facilities. Seller will immediately notify Buyer’s Purchasing Department of the receipt of any communication indicating that any Seller’s facilities are under consideration to be listed on the EPA List of Violating Facilities.
37. Hazardous Material. All packaging, transportation, and handling of hazardous materials shall be in accordance with applicable Federal and State regulations including, but not limited to, the Material Safety Data Sheet provision of O.S.H.A. Hazard Communication Standard 29 CFR 1910.1200.
38. Nondiscrimination. Seller is subject to and must comply with provisions of the Board of Directors Equal Opportunity Policy and applicable state and federal antidiscrimination laws, including the requirements set forth in 41 C.F.R. Section 60-1.4(b), which is incorporated herein by reference.
39. Guarantee. In filling this Order, Seller warrants and guarantees to Buyer that the articles are in compliance with Sections 5 and 12 of the Federal Trade Commission Act; the Fair Packaging and Labeling Act; the Federal Food, Drug and Cosmetic Act; the Consumer Product Safety Act; the Federal Environmental Pesticide Control Act; the Federal Hazardous Substances Act; the Fair Labor Standards Act; the Wool Products Labeling Act; the Flammable Fabrics Act; the Occupational Safety and Health Act; and the Anti-Kickback Act of 1986.
40. Use of Name. Seller agrees it will not use the name or intellectual property, including but not limited to, Buyer trademarks in any manner, including commercial advertising or as a business reference, without the expressed prior written consent of Buyer.