TERMS AND CONDITIONS FOR THE PURCHASE OF GOODS
- Acceptance
These Terms and Conditions of Purchase form part of the Purchase Order [ENTER NUMBER] issued by Scheuch USA Inc., d/b/a Camcorp Inc. or Schust Development Inc. (“Buyer”) for the purchase of equipment and/or services (“Works”) from [ENTER NAME] (“Seller”). ANY CONTRACT MADE BY AND BETWEEN THE PARTIES IS EXPRESSLY CONDITIONED ON SELLER’S ASSENT TO THESE TERMS AND CONDITIONS AND TO BUYER’S REVIEW AND APPROVAL OF SELLER’S CREDIT, TECHNICAL QUALIFICATIONS, AND COMPLIANCE CAPABILITIES.
Unless otherwise stated herein, Seller has thirty (30) days from the date of the Purchase Order to provide written confirmation of acceptance. Upon written confirmation by Buyer that it accepts such confirmation, this Purchase Order including these Terms and Conditions shall become a valid, binding contract between Buyer and Seller
2. Payment Terms. The following payment terms shall apply based on the total value of the Purchase Order:
- For Purchase Orders valued at $0 to $50,000 (USD):
- Payment shall be due in full Net 30 days following shipment.
- For Purchase Orders valued above $50,000 and up to $200,000 (USD):
- Thirty percent (30%) shall be due upon placement of the order;
- Thirty percent (30%) shall be due upon Buyer’s approval of submittals and release to fabrication;
- Forty percent (40%) shall be due Net 30 days following shipment.
- For Purchase Orders valued above $200,000 and up to $1,000,000 (USD):
- Thirty percent (30%) shall be due upon placement of the order;
- Thirty percent (30%) shall be due upon Buyer’s approval of submittals and release to fabrication;
- Thirty percent (30%) shall be due prior to shipment;
- Ten percent (10%) shall be due Net 30 days following shipment.
- For Purchase Orders valued above $1,000,000 (USD) or with extended timelines:
- Thirty percent (30%) due upon placement of order;
- Thirty percent (30%) due upon Buyer’s approval of submittals and release to fabrication;
- Fifteen percent (15%) due upon receipt of major materials by Seller;
- Twenty percent (20%) due prior to shipment;
- Five percent (5%) due Net 30 days following shipment.
Buyer reserves the right to withhold final payment until all required documentation, deliverables, and obligations under the Purchase Order have been fulfilled. No fabrication or shipment shall commence without receipt of applicable milestone payments. Any deviation from these terms must be agreed to in writing by Buyer.
- Warranty
Seller warrants that all equipment, materials, and installation services provided under this Agreement (collectively, the “Works”) shall be free from defects in materials (to the extent manufactured by Seller) and workmanship for twenty-four (24) months from the date of shipment, as determined by Buyer (the “Warranty Period”). Acceptance of the Works by Buyer shall not waive or limit any of Buyer’s rights or remedies under this warranty or applicable law.
If Buyer discovers any defect in materials or workmanship during the Warranty Period and provides written notice to Seller within five (5) business days of such discovery, Seller shall, at Buyer’s sole option and at Seller’s sole cost, promptly: (i) furnish replacement parts F.O.B. Buyer’s designated location; or (ii) repair or replace the defective Works at a location specified by Buyer. All costs associated with diagnosis, removal, access, transportation, reinstallation, and retesting shall be borne entirely by Seller.
This warranty does not apply to Works that have been (i) altered, modified, or repaired by any party other than Buyer or Buyer’s authorized designee; (ii) damaged through accident, misuse, neglect, improper storage, installation, operation, or maintenance; or (iii) subjected to conditions exceeding specifications provided by Seller and accepted in writing by Buyer. The effects of corrosion, erosion, and normal wear and tear are specifically excluded.
Equipment or components not manufactured by Seller shall carry only the warranty (if any) provided by the original manufacturer, which Seller shall assign to Buyer to the extent permitted, without recourse to Buyer. Seller shall remain fully responsible for the performance of all Works, including components sourced from third parties.
Buyer shall not be liable for any backcharges, repair costs, or other expenses incurred by Seller or third parties unless expressly authorized in advance in writing by Buyer. Unauthorized returns shall be refused.
Samples or prototypes provided by Seller shall be used solely for evaluation purposes and shall not constitute a warranty of any kind, express or implied.
All warranties and remedies provided herein shall be in addition to, and not in lieu of, any other warranties, rights, or remedies available to Buyer under contract, law, or equity.
- Taxes
All prices stated in this Contract shall be inclusive of any and all applicable federal, state, or local sales, use, excise, gross receipts, value-added, or similar taxes, duties, fees, or charges imposed in connection with the sale, delivery, or use of the goods or services, unless Buyer provides Seller with a valid and applicable tax exemption certificate. Seller shall be solely responsible for the collection and timely remittance of any such taxes to the appropriate taxing authority.
In the event that Buyer is required by law to pay any such taxes directly or on Seller’s behalf, Seller shall promptly reimburse Buyer for the full amount of such taxes in accordance with the payment terms herein. Buyer shall not be liable for any taxes imposed on Seller’s income, franchise, or employment obligations.
- Security Interest
If Seller fails to make payment in accordance with the terms hereof, Buyer reserves the right, at its sole option, to remove and reclaim the Works at Seller’s cost upon tender to Seller of the whole sum paid to Buyer by said Seller on account of the purchase price of said Works and thereby terminate any and all liability of Buyer to the Seller on account of the purchase and use of the Equipment. If, in the judgment of Buyer, the financial condition of the Seller at the time the Equipment is ready for shipment does not justify the terms of payment specified, Buyer may require full payment before making shipment. Seller here by grants to Buyer a security interest in the Equipment to secure its obligations hereunder, regardless of mode of attachment to realty or other property, until full payment has been made therefor. Seller agrees upon request to do all things and acts necessary to perfect and maintain said security interest and shall protect Seller’s interest by adequately insuring the Equipment against loss or damage from any cause wherein Buyer shall be named as an additional insured. All the cost incurred in conjunction with such insurance shall be borne by the Seller.
- Delivery Dates and Force Majeure
Buyer shall not be liable for, and shall not be deemed in breach or default of this Contract by reason of, any loss, damage, expense, or delay arising from causes beyond Buyer’s reasonable control, including, but not limited to: acts of God, war, terrorism, civil unrest, pandemic or epidemic (including without limitation COVID-19), quarantine restrictions, governmental laws, orders, or regulations, fire, flood, strikes or other labor disturbances, shutdown or interruption of operations, embargoes, delays in transportation, or shortages of labor, materials, energy, or transportation facilities.
Buyer shall have no liability for any loss, damage, expense, or delay caused by any third party. For the avoidance of doubt, any acts or omissions of Seller or its personnel, or any failures, defects, delays, or disruptions in Seller’s supply chain, subcontractors, systems, or performance shall be deemed within Seller’s control and shall not excuse Seller’s non-performance or delay.
In the event of a delay in Seller’s performance due to any force majeure event, Seller shall promptly notify Buyer in writing, and the delivery schedule may be adjusted by Buyer to account for the actual period of delay, but only if such delay is reasonable and unavoidable. Acceptance of delayed performance shall not be deemed a waiver of Buyer’s rights or remedies.
If Seller is unable or unwilling to deliver the goods at the agreed time and place, Buyer may, at its sole discretion and without waiving any rights, direct shipment to an alternate location or arrange for storage at Seller’s cost and risk. In such event, the goods shall be deemed delivered and accepted by Buyer as of the date of such shipment or storage, and risk of loss shall remain with Seller until the goods are physically received and accepted by Buyer at the final destination designated by Buyer.
Under no circumstances shall Buyer be liable for any indirect, incidental, special, punitive, or consequential damages, including lost profits or business interruption, regardless of the cause or legal theory. Buyer’s total liability under this Contract, if any, shall not exceed the amounts actually paid by Buyer to Seller for the specific goods giving rise to the claim.
Title to the goods shall pass to Buyer only upon Buyer’s receipt and acceptance of the goods and full payment of the applicable purchase price.
- CANCELLATIONS AND CHANGE ORDERS:
Buyer shall have the absolute right, without liability or penalty, to cancel or suspend performance under this Agreement, in whole or in part, immediately upon written notice to Seller, in the event of: (a) any breach by Seller of this Agreement, any applicable purchase order, or any other agreement between the parties; (b) failure by Seller to make any payment when due to Buyer under this or any other agreement; (c) failure by Seller to meet delivery schedules or other material obligations; or (d) Seller’s insolvency, bankruptcy, assignment for the benefit of creditors, or the institution of any proceedings by or against Seller under any bankruptcy or insolvency law.
Seller shall have no right to cancel this Agreement for convenience, in whole or in part. Any purported cancellation or attempted termination by Seller for convenience shall be deemed a material breach of this Agreement.
All change orders or modifications to this Agreement must be in writing and signed by authorized representatives of both Buyer and Seller. Any change order requested by Buyer may result in an equitable adjustment to the price or delivery schedule, subject to Seller’s timely submission of sufficient documentation and Buyer’s prior written approval. No verbal communications or unilateral actions shall constitute a valid change to this Agreement.
In the event of any termination of this Agreement by Buyer pursuant to this Section, Buyer shall be entitled to recover all costs, expenses, and damages incurred as a result of Seller’s default or breach, including without limitation reasonable attorneys’ fees, costs of cover, and any price differentials or losses associated with substitute goods or services.
- Laws and Regulations
Except as expressly set forth herein, Buyer does not assume responsibility for compliance with federal, state, or local Laws and regulations. All laws and regulations expressly referenced herein shall refer only to those editions or versions thereof in effect on the date of the Proposal. In the event of revisions or changes thereto subsequent to the date of this Proposal, Buyer assumes no responsibility or liability for compliance therewith. Any request by Seller to modify the Works to comply with any such revisions or changes shall result in a Change Order pursuant to Section 10 below (provided that Buyer and Seller mutually agree in writing to such changes in the contract price and delivery schedule).
- Bonds
In addition to the price specified herein, Seller shall pay the cost of any bonds which Seller requires Buyer to obtain.
- Security for Performance and Payment. If requested by Buyer, Seller shall provide the following performance and payment assurances:
- Performance Bond
Seller shall, at its expense, furnish an irrevocable, unconditional performance bond in favor of Buyer in an amount equal to the full Contract value, issued by a surety or bank acceptable to Buyer. This bond shall remain valid until two (2) months following the expiration of the warranty period and shall be governed by the laws of Kansas. Claims shall be honored upon first written demand without examination of the underlying contract breach and paid within five (5) banking days.
- Payment Bond
For Contracts exceeding $100,000 or as otherwise requested by Buyer, Seller shall provide a payment bond in a form acceptable to Buyer in the amount of all progress or advance payments made to date. This bond shall be issued prior to any such payment and remain in effect until the Buyer is reimbursed in full in the event of non-performance. Kansas law shall govern, and venue shall be Johnson County, Kansas, unless Buyer elects arbitration.
- Down Payment Guarantee
Prior to any Down Payment by Buyer, Seller shall furnish an autonomous bank guarantee in the full amount of such payment. The guarantee must be irrevocable and payable upon Buyer’s written demand confirming Seller’s default, with no additional conditions or objections permitted.
- Lien Waivers and Releases
As conditions precedent to payment:
(a) Interim payments require Seller to submit interim lien waivers in a form acceptable to Buyer.
(b) Final payment requires a final lien waiver and release.
- Waiver of Liens
Seller and its subcontractors waive and release any lien rights related to the Work. Seller shall discharge any lien within seven (7) calendar days of notice, and if it fails to do so, Buyer may act to discharge or bond over such lien, with Seller reimbursing all costs within five (5) days of request.
- Right to Withhold or Backcharge
Buyer may withhold payments or impose backcharges for failure to comply with any provisions of the Contract, including the obligations stated herein.
- Seller Supplied Data
Seller acknowledges and agrees that Buyer has materially relied upon all specifications, representations, data, and other information provided by Seller (“Conditions”) in evaluating, selecting, and designing the Works, and in preparing and entering into this Agreement. Seller expressly warrants the accuracy and completeness of such Conditions.
In the event that any actual conditions materially differ from those represented or supplied by Seller, and such differences affect the performance, design, installation, or functionality of the Works, then:
All warranties, performance guarantees, and obligations of Buyer relating to or dependent upon such Conditions shall be deemed null and void, unless otherwise agreed to in a subsequent written agreement executed by both parties;
Seller shall bear full responsibility for all additional costs and expenses incurred by Buyer as a result of the differing or inaccurate Conditions, including without limitation redesign, rework, labor, materials, project delays, and third-party costs; and
Seller shall promptly reimburse Buyer for such additional costs, plus a markup of fifteen percent (15%) for overhead, administrative burden, and lost opportunity.
The remedies set forth herein are in addition to, and not in limitation of, any other rights or remedies available to Buyer under this Agreement, at law, or in equity.
- Delivery/Freight Rates/Shipment/Title
Unless otherwise agreed to in writing by Buyer, all Products shall be delivered DDP (Delivered Duty Paid) Buyer’s designated facility in accordance with Incoterms® 2020. Title to and risk of loss for all Products shall pass to Buyer only upon final delivery to, and acceptance by, Buyer at the delivery destination specified by Buyer. All costs associated with shipping, duties, taxes, insurance, and customs clearance shall be borne by Seller, unless expressly stated otherwise in the applicable purchase order.
Buyer may, at its sole discretion, accept delivery of the Products in one or more lots. Each shipment may be separately invoiced and shall be paid according to the applicable invoice terms, without regard to subsequent or prior deliveries.
Shipment and delivery dates are material terms of this Agreement. Time is of the essence. Shipment dates specified in the Agreement or otherwise confirmed by Seller shall constitute firm delivery commitments. Seller shall promptly notify Buyer in writing of any actual or anticipated delay, including the cause and estimated duration.
In the event of any delay in delivery attributable to Seller, including but not limited to manufacturing delays, late procurement, or logistics issues, Buyer reserves the right to (a) require expedited delivery at Seller’s sole expense, (b) store the Products at Seller’s expense and risk, (c) assess reasonable storage and handling charges, or (d) seek any other remedies available under this Agreement or applicable law.
In no event shall any delay in delivery relieve Seller of its obligations under any other purchase order or agreement with Buyer. Seller shall remain fully responsible for the timely delivery of all Products in accordance with this Agreement.
Any clause or provision purporting to disclaim or limit Seller’s liability for delivery delays, including “time is not of the essence” language or backcharge disclaimers, is expressly rejected and shall be of no force or effect.
- Confidential Information
All drawings, patterns, prints, brochures, specifications and information included in the Proposal, and all information otherwise supplied by Buyer relating to the Works, including but not limited to the design, erection, operation, and maintenance of the Works, are intended for the confidential use by Seller, shall remain the property of Buyer, and shall not be disclosed or used to the detriment of Seller’s competitive position, and are protected against unlawful use or disclosure by common law and federal and state statutes that cover copyright, patents, trademarks, and trade secrets. Any unauthorized use, printing, copying, disclosure or dissemination of such information may be subject to legal restriction or sanction. In the event of a breach or threatened breach of this Section 16, Buyer shall be entitled to an injunction restraining Seller from disclosing, in whole or in part, any of such Confidential Information or from rendering any service to any person to whom such Confidential Information has been disclosed or is threatened to be disclosed, and Buyer shall also be entitled to recoup the attorney’s fees and costs it incurs from Seller. Nothing herein shall be construed as prohibiting Buyer from pursuing any other remedies available to it for such breach or threatened breach, including the recovery of damages.
- Price
Prices quoted include standard packing according to Seller’s specifications. Seller shall pay for special packaging requested by Buyer, including packaging for exports, and any such additional charges shall be paid by Seller.
- Inspection and Acceptance
Buyer shall have the right to inspect, after prior notification, the Works supplied by it when in operation, and prior to operation when deemed necessary by Buyer. Seller shall have the right to inspect goods upon receipt and shall have the opportunity at that time to run sufficient tests to determine whether goods shipped conform to the specifications of the contract. Seller shall reimburse Buyer, at the contract price, for all goods used in testing. Seller shall bear any expense incurred in the inspection of the goods used in testing whether the goods are nonconforming. Failure to inspect the goods or inform Buyer in writing that the goods are nonconforming within ten (10) days of the receipt of the goods by the Seller shall constitute a waiver of Seller’s rights of inspection and notification of nonconformity and shall be equivalent to an irrevocable acceptance of goods by the Seller.
- Waiver of Subrogation
Seller further agrees to waive all rights of subrogation that would otherwise be available to its insurers, regardless of the theory of recovery, relating in any way to the design, testing, manufacture, sale or installation of any goods, any components, related services, or the Works.
Notwithstanding anything herein to the contrary, Seller shall not assign or transfer this contract without prior written consent of Buyer.
- Contract Interpretation
Any contract resulting from this Proposal or any other Agreement shall be constructed and the legal relations of Buyer and Seller shall be determined in accordance with the laws of the State of Kansas. Seller hereby agrees that it has read and fully understands this contract, including the Proposal or any other Agreements and these Terms and Conditions, and that all prior proposals, negotiations, and representations, oral or written, made by or between Buyer and Seller regarding this subject matter are superseded by this contract, and that this contract may not be modified, amended or changed in any way except in a writing signed by the parties hereto and no oral communications, unless confirmed in writing by the Buyer, shall be recognized.
- Waiver
No failure, delay, or omission by Buyer in exercising any right, remedy, or power under this Contract shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, remedy, or power preclude any other or further exercise thereof or the exercise of any other right, remedy, or power.
No waiver shall be valid or binding upon Buyer unless expressly set forth in a written instrument signed by an authorized representative of Buyer. Any waiver by Buyer of any term, condition, or breach shall not be construed as a waiver of any other term, condition, or breach, nor shall it be deemed a continuing waiver.
Seller shall not assert, and hereby waives, any defense based upon Buyer’s failure to enforce any provision of this Contract at any time. Buyer expressly reserves all rights and remedies available under this Contract, at law, or in equity.
- Jurisdiction
Any legal proceeding brought by any party in conjunction with any of the terms or provisions of this transaction shall be brought exclusively in the applicable federal or state courts in Johnson County, State of Kansas. In the event Seller’s place of business is in a country that has ratified the United Nations Convention of the International Sale of Goods (1980) (“Convention”), the parties agree to exclude application of the Convention. It is agreed that no court of any other jurisdiction shall hear or rule upon any aspect of this transaction.
- WAIVER OF JURY TRIAL
EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ITS RIGHTS TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF THIS CONTRACT OR THE TRANSACTIONS RELATING TO ITS SUBJECT MATTER. THE WAIVER OF JURY TRIAL CLAUSE PROVIDES THAT THE PARTIES WAIVE THEIR SEVENTH AMENDMENT RIGHT TO A TRIAL BY JURY IF THERE IS ANY DISPUTE ARISING OUT OF OR RELATING TO THE CONTRACT OR THE TRANSACTION. ALL DISPUTES ARE STILL HANDLED BY THE COURT SYSTEM, WITH ALL DISCOVERY AND APPELLATE RIGHTS, BUT ANY TRIAL WILL BE DECIDED BY A JUDGE, AND NOT A JURY.
- Severability
In the event that any one or more (or any portion thereof) of these terms or conditions are held invalid, illegal or unenforceable, such provisions (or portion thereof) shall be construed in such a way as to make it valid and enforceable to the maximum extent possible, and such invalidity, illegality or unenforceability shall not affect any other provision of this contract.
- Indemnification
Seller shall indemnify, defend, and hold harmless Buyer, its parent, subsidiary and affiliated companies, their agents, employees, representatives, officers, directors, stockholders, members, managers, suppliers, consultants, and subcontractors (the “Indemnified Parties”), from and against all liability, claims, injuries, damages, losses, costs and expense (including but not limited to reasonable attorney’s fees, expert fees and costs of defense) for which the Indemnified Parties may be held liable by reason of injury (including death) to any person (including Seller’s employees) or damage to any property of whatsoever kind or nature arising out of or in any manner connected with alleged defects in or failures of the Works where such defects or failures are the result, in whole or in part, of the actions of persons other than Buyer, even for, and if caused, in whole or in part, by any act, omission, negligence, or strict liability of the Indemnified Parties.
