Last Updated: June 8, 2022

1. GOVERNING TERMS AND CONDITIONS (the “Terms”): All materials, goods, merchandise, or services described or referenced on this document (or such agreement), regardless of type, are referred to herein as "Goods." The seller of Goods as indicated on any agreement to which these terms are attached is referred to herein as "Seller", and the person or company purchasing Goods is referred to herein as "Buyer." These Additional Terms and Conditions shall govern and are hereby incorporated into any sale of Goods by Seller to Buyer (each, an "Order"). Any terms in Seller's Order acknowledgment, sales literature, quotations, invoice, or any other documents which are in conflict with or in addition to these terms stated on the face or back hereof are hereby deemed to be material alterations to the terms of an Order and, except to the extent they are (in Buyer's opinion) more favorable to the Buyer than the terms stated on an Order, notice is hereby given to Seller that any such terms are rejected. 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 United Nations Convention for the International Sale of Goods (CISG) shall not apply to any Order.
2. ACCEPTANCE: This Order is not binding on Buyer until Seller accepts the Order in writing or notifies Buyer that it has started to perform in accordance with the Order. If Seller does not accept the Order in writing or provide written notice that it has commenced performance within 5 days of Seller’s receipt of the Order, this Order will lapse. Buyer may withdraw the Order at any time before it is accepted by Seller. Seller's notification of commencement of work on the Goods covered by an Order shall be deemed an effective mode of acceptance of Buyer's offer to purchase contained in such Order. Any acceptance of a purchase set forth in an Order is limited to acceptance of the express terms of such Order and these terms and conditions. If an Order shall be deemed an acceptance of a prior offer by Seller, such acceptance is expressly conditional on Buyer's assent to any additional or different terms contained in such Offer. An Order shall become a contract for the entire quantity specified therein either (a) when signed by Seller and returned to Buyer, (b) when Seller delivers all or any part of the merchandise ordered thereunder, or (c) when Seller has otherwise manifested in writing assent to the terms and conditions therein.
3. PURCHASE PRICE: The price set forth on the face of an Order shall in no event be increased without Buyer's express consent, either initial oral consent subsequently confirmed in writing or prior written consent, given by a duly authorized agent of Buyer. If the price on the face of an Order is incorrect, Seller must immediately notify Buyer before processing such Order. Seller may notify Buyer in writing or orally of the incorrect price, but if said notice is oral, Seller shall confirm this price correction in writing. If Seller processes any part of an Order or delivers any of the Goods hereunder, Seller warrants that the prices for the Goods provided to the Buyer under an Order are not less favorable than those currently extended to any other customer for the same or like Goods in equal or smaller quantities. In the event Seller reduces its prices for such Good(s) during the term of an Order, Seller agrees to reduce the prices hereof correspondingly.
4. MODIFICATIONS: Buyer has the right to make changes, additions or alterations to items, timing, destination, specification, drawings or design. Seller must notify Buyer within five (5) days of receipt of request if any of the adjustments affect price, timing or terms, and any such changes will only be binding if agreed to in writing by Buyer. Conversely, the Seller shall not make any changes in design, packaging, processing, marking, shipping, or delivery unless agreed to in writing by an authorized Buyer agent.
5. 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”). 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.
6. SHIPPING TERMS; TITLE: 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, bill of lading and any other documents necessary to release the Goods to Buyer within 5 business day[s] after Seller delivers the Goods to the transportation carrier. The Order number must appear on all shipping documents, shipping labels, bills of lading, invoices, correspondence and any other documents pertaining to the Order. Title passes to Buyer upon delivery of the Goods to the Delivery Location.
7. PACKING: All physical Goods shall be packaged in a robust manner sufficient enough to protect from damage during transit and all shipping documents, invoices and related documents shall be marked with Buyer's PO number and/or comply with the shipping instructions found on the face of an Order. Unless otherwise set forth on the face of an Order, Buyer shall not be charged for packing, boxing, marking, cartage, or storage. Buyer's records will be accepted as final and conclusive with respect to all shipments which are not accompanied by invoices or shipping documents indicating quantities shipped. Shipments must be made in the quantities specified on the face of an Order and any over shipments may be rejected by Buyer in its sole discretion.
8. DELIVERIES: The terms of delivery are as stated on the Order. Time of delivery is of the essence of each Order. Acceptance by Buyer of a late delivery of either the whole or part of the Goods under an Order shall not constitute a waiver of Buyer's claim for any damages resulting from the late delivery. Moreover, in the event (i) that any of the Goods delivered hereunder do not comply with an Order or (ii) of non-delivery or delivery on a date unreasonably later than the date specified herein or (iii) of any other breach by Seller, Buyer may, in addition to any other rights and remedies available to Buyer, (A) rescind an Order in whole or in part, (B) refuse to accept delivery of all or any part of the Goods ordered hereunder and/or (C) return all or any part of the Goods ordered hereunder. If due to delivery delays, Buyer finds it necessary to call upon Seller for premium transportation the responsibility for the price differential between the specified transportation and the premium transportation shall be paid by Seller. Goods which are delivered in advance of schedule are delivered at the risk of Seller and may, at Buyer's option, be returned at Seller's expense for proper delivery and/or have payment therefore withheld by Buyer until the date that the Goods are actually scheduled for delivery.
9. 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) 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. If Buyer requires replacement of the Goods, Seller shall, at its expense, within 30 days 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 immediately. 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 carried out its remedial actions.
10. SELLER'S WARRANTIES: Seller hereby represents, warrants and guarantees as follows:
    • That the Goods will conform to the specifications, drawings, samples or other description specified by Buyer or, if none are so specified, to Seller's standard specifications and representations for such material or prevailing standards for professional provision of such services, and materials supplied or used will be new, will be free from defects in material and workmanship, will be free of all liens and encumbrances, and will conform to any affirmation on its container or label;
    • That Seller has good marketable title to the Goods and that the transfer hereof is rightful;
    • That said Goods are of merchantable quality, free from any and all latent or patent defects;
    • That the Goods are fit for their particular purpose if Seller knows or should know the purpose for which Buyer intends to use them;
    • That Seller will indemnify, defend and hold harmless Buyer, its affiliates, and its and their directors, officers, employees and agents from any loss, claim, damage, fire, spill, release, liability, fine, penalty or expense of any sort whatsoever, including but not limited to counsel fees, resulting from Seller’s failure to furnish Goods that conform with any warranty or other obligation herein;
    • The Goods ordered hereunder and the production and sale thereof do not, and will not, infringe any patent right, trade name, trademark, copyright, patent, design, right of privacy, or any other right arising out of or relating to the Goods. Goods not in accordance herewith may be returned to Seller with charges for transportation both ways paid by Seller, and Buyer shall have the option of returning such Goods to Seller within a reasonable time within thirty (30) days after delivery for credit or replacement at the price charged. The foregoing shall not limit any other rights which Buyer may have by reason of any breach of warranty. Seller may not negate, exclude, limit or modify any warranty otherwise available to Buyer under this paragraph; and
    • Seller is in compliance with 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 carry out 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.
11. SELLER'S BREACH: If Seller breaches this contract or any portion thereof, or if Seller has manifested an intention not to perform in accordance with the provisions hereof, Buyer may, by written notice, terminate the contract without further liability to Seller. This right is in addition to any remedy provided elsewhere herein. In such case, Seller shall remain liable to Buyer for damages sustained by Buyer including, but not limited to, any difference between the contract price of the Goods ordered hereunder and the price paid by Buyer to replace them. Each of the rights and remedies reserved Buyer in an Order shall be cumulative and additional to any other or further remedies provided in law or equity.
12. SELLER'S INDEMNIFICATION: Seller hereby agrees to indemnify, defend and hold Buyer, its affiliates, and its and their directors, officers, employees, agents, guests and visitors and customers harmless from any and all loss, costs, damage, personal injury (including death at any time resulting therefrom), claims or liability arising directly or indirectly on account of an Order, of performance or the breach thereof, or arising out if, or resulting in any way from any defect or non-conformity in the Goods purchased hereunder, or from any act or omission of Seller, its agents, employees or subcontractors, or Seller’s negligence, willful misconduct or breach of the Terms, including any claim that Buyer’s use or possession of the Goods infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. In no event shall Seller enter into any settlement without Buyer’s prior written consent.
13. LIQUIDATED DAMAGES FOR NON-COMFORMING GOODS: Buyer may require compensation from Seller for all incidental, consequential and special damages caused by non-conforming Goods, including but not limited to, cost, expenses, and losses incurred directly or indirectly by Buyer or its customers (i) in inspecting, sorting, repairing or replacing the non-conforming Goods; (ii) resulting from stoppage in production; (iii) causing a recall or other corrective service remedies; or (iv) resulting from personal injury (including death) or property damage or production losses created by non-conforming Goods. Seller has the right to cure non-conforming Goods if Seller gives notice to the Buyer and if conforming Goods can be delivered in a mutually agreed upon time frame. If Seller is unable to provide the Goods as requested, Buyer may recover any money already paid and any damages resulting from the breech.
14. WORK ON BUYER'S PREMISES: If the accomplishment of an Order requires delivery, or performance of services or labor in the plants or on the premises of Buyer, Seller agrees that the following conditions shall apply:
    • (a) Seller will comply with all of Buyer's rules and regulations.
    • (b) Seller will carry and furnish Buyer with proof of coverage of the following insurance against all claims arising out of the performance on Buyer’s premises of the work covered by an Order:
      • (1) Workers’ Compensation and Employer’s Liability Insurance on all employees - statutory limits.
      • (2) COMPREHENSIVE GENERAL LIABILITY: (Including Completed Operations and Contractual Liability Insurance) $1,000,000 Combined Single Limit.
      • (3) AUTO LIABILITY: (Owned, Non-owned & Hired) $1,000,000 Combined Single Limit.
      • (4) PROFESSIONAL LIABILITY: (if consulting and/or other professional services are being provided) $1,000,000 Combined Single Limit.
    • (c) Proof of coverage as required herein shall consist of a certificate or certificates of insurance issued by Seller’s insurance carrier, or carriers, setting forth the amounts of the coverage, policy numbers, and expiration dates, and providing for thirty (30) days' prior written notice to Buyer before such insurance may be cancelled.
    • (d) Seller at all times will indemnify, release, protect, defend and hold Buyer, its affiliates, and its and their directors, officers, employees, agents, guests and visitors, harmless from and against any and all loss, liability, expense, claims or demands arising from personal injury (including death at any time arising there from), or property damage to any person (including Seller and Buyer), occurring as a direct or under result of, or in any manner connected with, the performance of work upon Buyer’s premises under an Order unless such personal injury (including death at any time arising therefrom) or property damage shall be caused solely by the negligence of Buyer, Buyer's employees, or employees of any of Buyer's subcontractors hereunder, and Seller shall at its expense defend any and all actions based thereon and shall pay all charges of attorneys and all costs and other expenses arising therefrom.
15. ENTIRE AGREEMENT: Except when expressly incorporated into or issued to carry out a written contract between the parties (in which case the terms of the written contract shall govern any conflict between terms), the terms and conditions set forth in the Order constitute the entire agreement between the parties regarding the subject matter hereof, and no oral conversations or ancillary documents become a part of said agreement.
16. ARBITRATION: Any controversy arising out of or relating to an Order, including any modification or amendment thereof, shall, at Buyer’s option, be resolved by arbitration within 50 miles of Billerica, Massachusetts pursuant to the rules of the American Arbitration Association. The parties agree that the arbitrators sitting in any such controversy shall have no power to alter or modify any express provision of an Order, or to make any award which by its terms effects such alteration or modification. The parties consent to the application of the Federal Arbitration Statutes and to the jurisdiction of the Courts of the United States District Court for the District of Massachusetts, for all purposes in connection with said Arbitration, and further consent that any notice, process or notice of motion or other application to either of said Courts or Judges thereof, or of any notice in connection with any arbitration or arbitration award hereunder, may be served in or out of the Commonwealth or District of Massachusetts by certified or registered mail, return receipt requested, or by personal service, provided a reasonable time for appearance is allowed, or in such other manner as may be permitted under the Rules of the American Arbitration Association or of said Courts. Judgment upon the award rendered may be entered by any Court having Jurisdiction. Any provisional remedy (including, without limitation, injunctive or other equitable relief) which, but for this provision to arbitrate disputes, would be available at law, shall be available to the parties hereto pending arbitration.
17. SUCCESSORS AND ASSIGNS: All of Seller's representatives, warranties, guarantees and covenants shall be binding upon the successors and assigns of Seller and shall inure the benefit of Buyer, its successors, assigns and customers and to the benefit of the users of Buyer's product.
18. SURVIVAL OF REPRESENTATIONS: All representations, warranties and guarantees of Seller hereunder shall survive the delivery of the Goods to Buyer and the payment of the purchase price thereof by Buyer.
19. CAPTIONS: The captions in an Order are for convenience only and shall not limit or otherwise affect any of the terms or conditions of an Order.
20. WAIVER: Any waiver by Buyer of any default or other breach of an Order shall not constitute a waiver of any subsequent default or other breach.
21. GOVERNING LAW: An Order and the construction of the provisions hereof shall be construed and interpreted in accordance with the laws of the Commonwealth of Massachusetts, without regard to its conflicts of laws provisions.
22. NOTICES: All notices required to be given under this contract may be given either orally, or by mail or e-mail to the respective parties at the addresses shown on the face of an Order. In the event oral notice is given, the party to whom notice is given may request that it be provided written confirmation of said oral notice. In this event, the party giving said notice shall comply with said request and promptly deliver said written notice.
23. LIMITATION OF BUYER'S LIABILITY, STATUTE OF LIMITATIONS: In no event shall Buyer be liable to Seller for anticipated profits or for special, indirect, incidental or consequential damages arising out of, connected with, or resulting from this agreement. Buyer's liability for any claim of any kind for any loss or damage arising out of, connected with, or resulting from this agreement, or from the performance or breach thereof, shall in no case exceed the price applicable to the Goods or unit thereof which gives rise to said claim. Buyer shall not be liable for penalties of any description. Any action resulting from any breach on the part of the Buyer as to the Goods delivered and/or due hereunder must be commenced within one (1) year after the cause of action has accrued.
24. INGREDIENTS: Seller will promptly furnish Buyer, upon Buyer's written request, a complete list specifying all ingredients in the composition of the Goods covered by any Order, and the amounts and percentages thereof. Thereafter, Seller will promptly advise Buyer in writing of all proposed changes in such composition for Buyer's approval.
25. CONFIDENTIAL OR PROPRIETARY INFORMATION: Any knowledge or information which Seller shall have disclosed or may hereafter disclose to Buyer and which in any way relates to the Goods covered by this Order shall not, unless specifically agreed to in writing by Buyer, be deemed to be Seller's confidential or proprietary information and shall be acquired by Buyer free from any restrictions as part of the consideration for the Order. No information concerning the Order will be made public by Seller without the prior written consent of Buyer. Seller shall keep confidential any and all technical, process, product and/or economic information disclosed by Buyer and/or derived by Seller from drawings, specifications and other data furnished by Buyer in connection with this Order and shall not divulge, export and/or use, directly and/or indirectly, such information without obtaining Buyer's prior written consent.
26. OWNERSHIP OF INTELLECTUAL PROPERTY: Seller agrees that, if an Order covers research, development or experimental work, the entire right, title and interest in and to any discoveries, inventions, patents, or other intellectual property arising out of such work shall vest in Buyer and, to the extent any such rights vest in Seller, Seller hereby assigns and agrees to assign all such rights to Buyer. Upon Buyer's reasonable request and at Buyer's expense, Seller shall execute and deliver, and will cause its employees, any approved subcontractors, and all others involved in such development or experimental work to execute and deliver, such further conveyance instruments and take such further action as may be necessary or desirable to evidence more fully the transfer of ownership set forth in this Clause 26, and Seller hereby appoints Buyer as Seller's attorney-in-fact to execute and deliver any such documents on Seller's behalf in the event Seller fails or refuses to do so within a reasonable time following Buyer's request. Notwithstanding the foregoing, Seller reserves to itself and retains all rights to all production know-how pertaining to the manufacture of the Goods hereunder that it had previous to the performance of Order and was not disclosed to Seller by Buyer.
27. TERMINATION: Buyer may terminate this Order, in whole or in part, at any time with or without cause for undelivered Goods on 10 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 or if Goods have not been shipped and either Seller has not started work under the Order or if it has, it shall use best efforts to mitigate its costs in order to allow Buyer to cancel an Order. If the Seller becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, 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.
28. 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.