This order may only be accepted on the exact terms and conditions set forth herein. None of the terms and conditions contained in this order may be added to, modified, superseded or otherwise altered except by written instructions signed by an authorized representative of Buyer and delivered by Buyer to Seller, and each shipment received by Buyer from Seller shall be deemed to be only upon the terms and conditions contained in this order, notwithstanding any terms and conditions that may be contained in any acknowledgement, invoice or other form of Seller and notwithstanding Buyer's act of accepting or paying for any shipment or any similar act of Buyer.
No charges for packing, boxing and crating, cartage or storage will be allowed except as stated herein.
All prompt payment discount periods will date from the receipt of the goods, or the date of invoice, whichever is later. C.O.D. shipments will not be accepted. Shipments delivered in whole or in part prior to scheduled delivery dates shall, unless previously authorized in writing, be treated as being received on the date requested and all prompt payment discounts shall be determined in reference to said date.
Seller warrants the goods purchased hereunder do not infringe any letters patent granted by the United States and covenants and agrees to indemnify and hold harmless Buyer and its officers, employees, agents, representative, successors, assigns, affiliated corporations, and the customers of any of them of and from any loss or liability of any nature or kind whatsoever arising out of, or related to, the infringement or alleged infringement of any patent on account of the manufacture, sale, use or possession of any goods or services provided by Seller hereunder, except in cases where compliance by Seller with specifications prescribed by and originating with Buyer constitutes the sole basis of the infringement or alleged infringement.
Except for customary quantity variations recognized by trade practice, goods in excess of those specified will not be accepted, and such goods will be held at Seller's risk. Buyer may, and at Seller's discretion shall, return such goods at Seller's risk, and all transportation charges, both to and from the original destination for such goods shall be paid by Seller.
A packing list must accompany each shipment and include a description of the goods shipped and the quantity of goods shipped. Buyer's count of goods shall be accepted as final on all shipments. Goods covered by this purchase order shall be prepared for shipment in accordance with packing requirements of Consolidated Freight Classification, National Motor Freight Classification, or in tariffs of applicable governmental agencies naming applicable rate on date of shipment. Seller agrees to assume excess transportation costs and all risk of loss and/or damage to the goods occurring because of improper packing. Seller shall observe Buyer's specific shipping and routing instructions as noted on the face hereof, or as otherwise requested by Buyer, and Seller agrees to assume all excess transportation costs and risk of loss and/or damage to the goods which may occur because of Seller's failure to observe such shipping and/or routing instructions. If shipment by air becomes necessary in order for Seller to deliver the goods by the time specified herein, Seller shall pay all air freight charges except if shipment is F.O.B. place of shipment, Seller shall pay to Buyer, on demand, the difference between the air freight charges and the charges for the mode of shipment which would have been used by Seller had shipment by air freight not been necessary to meet the delivery schedule provided for herein.
Buyer reserves the right to cancel all or any part of the undelivered portion of this order if Seller does not make deliveries as specified herein, time being of the essence of this contract, or if Seller breaches any of the terms hereof including, without limitation the warranties of the Seller.
All goods shall be received subject to Buyer's right to inspection and rejection. Inspection and test of the goods by Buyer may, at Buyer's option, be made at Seller's plant and/or the point of destination. Defective goods or goods not in accordance with Buyer's specifications will be held for Seller's instruction at Seller's risk and if Seller so directs, will be returned at Seller's expense and risk. If inspection discloses that part of the goods received are not in accordance with Buyer's specifications, Buyer shall have the right to cancel any unshipped portion of the order. Payment for goods on this order prior to inspection shall not constitute acceptance thereof, and is without prejudice to any and all claims that Buyer may have against Seller. Acceptance of the goods by Buyer shall not relieve Seller from any of its obligations and warranties hereunder.
Seller expressly warrants that all the goods, material and work covered by this order will conform to the specifications, drawings, samples or other description furnished or adopted by the Buyer, and will be of good material and workmanship, and free from defects, and if the articles are not ordered to Buyer's specifications, Seller further warrants that they will be merchantable and fit and sufficient for the purpose intended. Such warranties shall survive delivery and shall not be deemed waived either by reason of Buyer's acceptance of said goods or by payment for them.
All patterns, dies, molds, fixtures, machinery, equipment, patterns, drawings, specifications and samples furnished to Seller by Buyer, or specifically paid for by Buyer shall be the property of Buyer and, upon completion of this order, shall be returned to Buyer. Such items shall be used only in filling Buyer's orders, shall be held by Seller at its risk, and unless otherwise agreed, shall be insured by Seller at its sole expense, for the reasonable value thereof against loss or damage of any kind.
This order is confidential between Buyer and Seller, and it is agreed by Seller that none of the details connected herewith shall be published or disclosed to any third party without Buyer's prior written permission, unless such disclosure is reasonably necessary to the performance by Buyer of said order. Seller agrees not to make use of any data, designs, drawings, specifications, samples or other information furnished to it by Buyer, except as may be reasonably necessary for the performance of this contract, and Seller further agrees not to disclose any of such data, designs, drawings, specifications, samples, or other information to third persons except as may be reasonably necessary for the performance of this contract, and then only under restrictions against use and disclosure such as those here imposed upon Seller. Upon completion, cancellation or other termination of this contract, Seller shall return to Buyer on demand, all such data, designs, drawings, specifications and other information including all copies made by Seller.
Seller shall comply with all applicable federal, state and local laws, ordinances, rules and regulations, including but not limited to, the Occupational Safety and Health Act of 1970. Seller agrees to indemnify and hold harmless Buyer, its officers, employees, agents, representatives, successors, assigns, affiliated corporations, and the customers of any of them, of and from and any and all fines, penalties or other assessments imposed on any of the foregoing by any governmental body and any loss or liability of any nature or kind whatsoever arising out of, or related to, the violation or alleged violation of any such laws, ordinances, rules or regulations by Seller, except in cases where compliance by Seller with the specifications prescribed by and originating with Buyer constitutes the sole basis of the violation or alleged violation.
This contract may not be assigned by either party without the prior written consent of the other.
The contract resulting from the acceptance of this order is to be construed according to the laws of the state of Wisconsin.
No remedy herein provided shall be deemed exclusive of any other remedy allowed by law. If suit or action is instituted in connection with any controversy arising out of this order, or the enforcement of any right hereunder, the prevailing party shall be entitled to recover in addition to costs such sum as the court may adjudge reasonable as attorneys' fees, including fees on any appeal.
FISKARS BRANDS, INC. is a federal government contractor subject to the requirements of Executive Order 11246, the Rehabilitation Act of 1973, as amended, and the Vietnam Era Veterans Readjustment Assistance Act of 1974, and hereby incorporates by reference the equal opportunity clause contained in 41 C.F.R. §60-1.4 and the affirmative action clauses contained in 41 C.F.R. §60-250 and 741.4 and Executive Order 13201, Notice of Employee Rights Concerning Payment of Union Dues.