All purchase orders issued by LMK Technologies, LLC (“LMK”) are subject to these terms and conditions:
1) ACCEPTANCE – Commencement of performance of this purchase order (“Order”) shall constitute acceptance hereof by Seller, provided that LMK may unilaterally cancel this Order without cost at any time prior to having received Seller’s written unqualified, unconditional acceptance hereof. Seller’s acceptance of this Order shall be unqualified, unconditional and subject to and expressly limited to the terms and conditions hereof. LMK shall not be bound by any provisions additional to or at variance with the terms hereof that may appear in Seller’s quotation, acknowledgment, confirmation, invoice or in any other communication from Seller to LMK, unless such provision is expressly agreed to in a writing signed by an authorized agent of LMK. LMK’s acceptance of the goods or services (the “Goods” or “Services”) shall constitute acceptance of such Goods or Services subject to the provisions hereof only, and shall not constitute acceptance of any counterproposal submitted by Seller not otherwise accepted in a writing signed by an authorized agent of LMK. Upon acceptance, this Order shall constitute the entire agreement between LMK and Seller, supersede all prior negotiations, discussions and dealings and may not be modified or rescinded except by a writing signed by both Seller and LMK.
2) ATTORNEY FEES – If either party commences or is made a party to an action or proceeding to enforce or interpret this Order, the prevailing party in such action or proceeding shall be entitled to recover from the other party all reasonable attorneys’ fees, costs and expenses incurred in connection with such action or proceeding or any appeal or enforcement of any judgment obtained in any such action or proceeding.
3) CANCELLATION – LMK may cancel this Order at any time upon written notice to Seller and, if Seller is not in breach of its obligations hereunder, shall thereafter pay reasonable and proper cancellation charges, which may include a reasonable and customary profit only on Goods and Services accepted to date of receipt of the notice of cancellation. In addition, in the event that (i) any Goods fail to conform to any applicable warranties, (ii) Seller fails to make any required deliveries, (iii) Seller breaches any terms or conditions of this Order, (iv) Seller becomes insolvent, (v) a voluntary petition in bankruptcy is filed by Seller, (vi) an involuntary petition to have Seller declared bankrupt is filed, (vii) a receiver or trustee for Seller is appointed, or (viii) an assignment for the benefit of creditors is executed by Seller, LMK shall have the right to immediately cancel this Order without any liability whatsoever to Seller or any other person or entity. In the event of such cancellation, LMK, without prejudice to any other rights available to LMK for breach of contract, shall have the right to: (a) refuse to accept delivery of the Goods or performance of the Services, (b) return to Seller any Goods already accepted and recover from Seller all payments made therefor and for freight, storage, handling and other expenses incurred by LMK and be relieved from liability for any future payments to Seller, (c) recover any advance payments to Seller for undelivered or returned Goods or Services to be performed, and (d) purchase Goods or Services elsewhere and require Seller to immediately reimburse LMK for any resulting losses.
4) CONFIDENTIAL INFORMATION – Confidential Information means any trade secrets or other information of Discloser that is not generally available to the public, whether of a technical, business or other nature (including, without limitation, the relationship between the parties, technology, software, object code, source code, Goods or Services, services, designs, methodologies, formulas, data structures, databases, processes, modification reports, training manuals, user’s guides, business plans, finances, marketing, employees, methodologies, know-how, inventions whether patented or not, customers, prospects and other intellectual property), unless such information falls within the exceptions set forth below (hereinafter such information shall be collectively referred to as “Confidential Information”). Confidential Information shall also include Work Product: defined as all research, concepts, product designs and descriptions, current patent filings, all engineering and manufacturing drawings, schematics, and models prepared by LMK or by seller in support of this Order. Seller shall neither disclose, advertise, nor publish the fact that Seller has contracted to furnish LMK the Goods or Services described herein, nor disclose any details connected with this Order to a third party. Seller further acknowledges that LMK shall retain all intellectual property rights relating to the Goods or Services, including any enhancements, that are manufactured according to LMK’s direction. Seller shall assign all such rights to LMK on demand. Seller agrees that the PO and the T&C and all information relating to the assets, finances, operations, business, techniques, suppliers and customers of LMK or otherwise used by LMK in the purchase, promotion, distribution or sale of the Goods or Services are confidential information of LMK, as the case may be (“Confidential Information”), that (a) were designed and developed by LMK, as the case may be, at great expense and over lengthy periods of time; (b) are secret, confidential, unique and constitute exclusive property or trade secrets of LMK, as the case may be; and (c) any use of Confidential Information by Seller for any purpose other than in accordance with or in furtherance of its obligations under the PO and the T&C would be wrongful and would cause irreparable injury to LMK for which damages are not an adequate remedy. Except as required by law or as its duties hereunder may require, Seller agrees it will not at any time disclose or use any Confidential Information of LMK, including to any subcontractor, without LMK’s prior written consent, as the case may be. Seller agrees in event of Seller committing a breach or threatens to commit a breach of any provision of this clause, LMK shall have right and remedy to have provisions of this clause specifically enforced by any court having jurisdiction. The prohibitions set forth in this clause shall not apply to any information that, through no improper action of any person, is publicly available or generally known in the industry.
5) NON-CIRCUMVENT – Seller agrees not to circumvent LMK in dealing with LMK’s customers concerning LMK Goods or Services or by using any LMK Work Product. Seller agrees not to contact LMK’s customers concerning either the Goods of Services or any LMK Work Product for any reason without written consent from LMK and will take all the necessary precautions to ensure that LMK customers will not communicate with Seller on these items.
6) LMK’S PROPERTY – Unless otherwise agreed in writing, all tools, equipment or Goods and Services of every description furnished to Seller by or on behalf of LMK or specifically paid for by LMK or prepared by Seller for LMK or at LMK’s request and any replacement thereof or modification thereto, or any Goods affixed or attached thereto, shall be and remain the sole property of LMK. Such property (a) shall be clearly marked “Property of LMK”, (b) shall not be used except in filling LMK’s Orders; (c) shall be held at Seller’s risk; and (d) shall be promptly delivered without cost to LMK at its written request. Seller shall supply LMK with an inventory of such property quarterly. Any specifications, drawings, sketches, models, samples, tools, technical information or data, and any other confidential or proprietary information, written, oral or otherwise (all hereinafter designated “confidential information”) furnished to Seller thereunder or in contemplation hereof shall remain LMK’s property. All copies of such information in written, graphic or other tangible form shall be immediately returned to LMK without cost upon its request. The information shall be kept confidential by Seller, shall be used only in the filling of LMK Orders, or in performing obligations thereunder and may be disclosed or used for other purposes only upon such terms as may be agreed upon between LMK and Seller in writing. No information furnished by Seller to LMK or in contemplation hereof shall be considered by Seller to be confidential or proprietary except as specifically agreed to in writing by an authorized agent of LMK.
7) SUPPLIER’S CODE OF CONDUCT – Seller further represents, warrants and covenants that: a) Seller will provide a safe, clean and healthy work environment for all employees and will ensure that Seller’s workplace is in compliance with all local health, safety and environmental laws and standards and that all employees are adequately trained for their respective jobs; b) Seller will pay employees at a rate consistent with local legal or prevailing minimum wage (whichever is higher) and will not require employees to work more hours in a week than permitted by local law or without proper overtime compensation; c) Seller will allow employees days off and leave privileges according to local law; d) Seller will not use forced or compulsory or prison labor to manufacture the Products and no employee will be forced to work against his or her will; e) Seller will utilize fair employment practices and treat all employees with dignity and respect and will not subject employees to corporal punishment or other physical or psychological coercion or abuse; f) Seller will not discriminate in hiring and employment practices on grounds of race, religion, national origin, disability, political affiliation, gender or age in conflict of local law; g) Seller will not use child labor and will comply with all local laws in defining the term “child,” provided that Seller will not use workers under the age of 14 or younger than the age for completing compulsory education (if applicable) in any event; h) Seller will only engage such subcontractor and suppliers that will abide by the above code of conduct on LMK products, projects, and services; and i) Seller is aware of the strict policy of LMK that prohibits all members of LMK’s staff and its agents from accepting any money or gift of any kind from any of their suppliers or vendors and Seller and its staff will not offer any such money or gift to any staff of LMK or its agents.
8) INDEMNIFICATION – Seller shall indemnify LMK and its customers and hold them harmless from and against any and all claims, actions, proceedings, costs, expenses, losses and liability, including all reasonable attorneys’ fees, costs and expenses, arising out of or in connection with or relating to any Goods or Services furnished by Seller pursuant to this Order, including without limitation all product liability claims and any claims involving personal injury, death or property damage. The obligations set forth in this Section shall survive the termination or fulfillment of this Order.
9) INFRINGEMENT OF PATENTS, TRADEMARKS OR COPYRIGHTS – The following terms apply to any infringement, or claim of infringement, on any patent, trademark or copyright based on the manufacture, normal use or sale of any Goods furnished to LMK hereunder or in contemplation hereof. Seller shall indemnify LMK and its customers for any loss, damage, expense or liability that may result by reason of such infringement or claim (including without limitation reasonable attorneys’ fees, costs and expenses), except where such infringement or claim arises solely from Seller’s adherence to LMK’s written instructions or directions which relate to the Goods other than (1) commercial material or equipment, or (2) items of Seller’s origin, design or selection, and LMK shall indemnify Seller in such excepted cases. Each party shall defend or settle, at its own expense, any action or suit against the other for which it is responsible hereunder. Each party shall notify the other promptly of any claim of infringement for which the other is or may be responsible hereunder, and shall cooperate with the other in every reasonable way to facilitate the defense of any such claim.
10) INSIGNIA – Goods rejected or not purchased by LMK which utilize or carry any LMK or LMK customer’s name, trade name, trademark, insignia, symbol, decorative design or evidence of LMK ‘s inspection (all hereinafter designated (“Insignia”) shall have all such Insignia removed prior to any sale, use or disposition thereof. Seller agrees to indemnify and hold LMK harmless from any claim, loss or damage arising out of Seller’s failure so to do. This clause shall in no way modify the provisions hereof relating to the use of confidential information.
11) INSURANCE – Seller shall maintain, and cause its sub-contractors to maintain, the following minimum insurance coverage during the term of this Order with insurance companies acceptable to LMK (those rated A-10 or higher by A.M. Best) and shall submit insurance certificates, as requested by LMK , to LMK in writing prior to commencement of any work relating to the Goods: Comprehensive General Liability Insurance for bodily injury, property damage and personal injury, including contractual liability insurance, with combined limits of not less than $1,000,000 per occurrence. Seller shall cause all insurance companies providing such insurance to waive all rights of subrogation against LMK and its customers; all insurance policies shall provide that no expiration, termination or modification of such coverage shall take place without the insurance company giving thirty (30) days’ prior written notice thereof to LMK. LMK shall be named as an additional insured on all policies described herein.
12) DELIVERY – Time is of the essence. Seller understands and agrees that if Seller makes any commitments or production arrangements in excess of the amounts set forth herein or in advance of the time necessary to meet LMK’s delivery schedule, it does so at its own risk, and LMK shall have no liability to Seller or any other party relating to same. Goods shipped in advance of the time required in this Order may, at LMK’s option, be returned to Seller at Seller’s expense. LMK reserves the right to delay shipment of the Goods for up to thirty (30) days at no additional cost.
13) DELAYS IN DELIVERY – If Seller does not comply with LMK’s delivery schedule, LMK in addition to remedies provided by law, at its option, may either approve a revised delivery schedule or may terminate this Order and hold Seller accountable for all losses and damages arising therefrom. LMK has the right, at any time, to change the place and/or time of delivery. Any claim by Seller for adjustment because of a change in place and/or time of delivery will be deemed waived unless asserted in writing within ten (10) days after receipt by Seller of the request for change.
14) SHIPPING – Unless specified otherwise in writing by LMK, shipping shall be done
- Incoterm FCA Ottawa, IL
- 3rd Party for shipping from Seller to supplier or Seller to customer
using shipper and shipping account number as specified by LMK.
15) DRAWINGS – LMK’s review and approval of drawings submitted by Seller will be for and cover only general conformity to the specifications. Such approval will not constitute approval of any dimensions, quantities or details of the Goods shown by such drawings, and shall not relieve the Seller of its responsibility for meeting all specifications of this Order. LMK retains the right of final approval for all finished Goods.
16) PAYMENT TERMS – The payment terms are net forty-five (45) days, or ten (10) calendar days with 2% discount off invoice or pricing, after receipt of the Goods (including all documents required in this Order), performance of the Services, verification that the quality of Goods or Services received meet LMK’s specifications, and the receipt of a correct and undisputed invoice. A “correct” invoice is one the meets LMK’s invoicing requirements including, but not limited to, correctly reflecting the fees/prices as agreed upon and quantity/volume ordered as the description of the Goods and/or Services ordered and provided. If Seller fails to ship the Goods or perform the Services in accordance with the times stipulated in this Order, LMK may delay payment, equal to the number of days the Goods were delayed by the Seller, as an equitable adjustment. LMK shall be entitled at all times to set off any amount owing at any time from Seller or any of its affiliates to LMK.
17) INVOICING BY SELLER – Seller’s invoices shall not be submitted to LMK prior to the delivery of the ordered Goods to LMK and/or designated other supplier and/or, as applicable, completion of the Services and/or the acceptance of the Goods or Services by LMK. Unless otherwise agreed upon in a Statement of Work (“SoW”) attached to this Order, in no event shall an invoice be submitted more than five (5) business days from such delivery and /or acceptance date, and in no event shall the date on a correct invoice be earlier than the delivery and/or acceptance date, as applicable. In the event an incorrect date is placed on an invoice, LMK may exercise any rights and/or remedies it may have under this Order and/or at law or equity as it relates to such a misrepresentation and/or violation of law.
18) PRICES – All prices are firm, fixed and not subject to escalation. Prices include all applicable federal, state and local taxes or charges (for which Seller shall be solely responsible) except state sales tax may be invoiced if applicable. All costs and expenses relating to boxing, packing, loading, bracing, cartage or extra insurance are included in the price, and no additional charges of any kind will be allowed relating to same.
19) WARRANTY – Seller warrants to LMK and its customers that the Goods and Services furnished will be of good quality, free from defects in material, design and workmanship, will conform to the specifications, drawings, or samples and are suitable for their intended purpose(s) as represented to LMK. All warranties shall succeed to LMK, its successors, assigns, and all persons and entities, including affiliates of LMK, to whom the Goods may be resold or leased.
20) SPECIFICATIONS – Seller expressly warrants that all Goods and Services covered by this Order will conform to the specifications, drawings, samples or other description(s) furnished or adopted by LMK and will be of good quality and workmanship and free from defects. Goods furnished to LMK’s patterns, specifications, drawings, or fabricated with its tools shall not be furnished or quoted to any other person or entity.
21) INSPECTION – LMK and its customers reserve the right to expedite, inspect or witness the test of the Goods at any time and place including the Seller’s and its sub-contractor’s facilities with prior notice.
22) REJECTIONS – If any of the Goods are found by LMK , within a reasonable time after delivery to LMK’s destination, to be defective in material or workmanship, or otherwise not in conformity with the requirements of this Order, LMK, in addition to any other rights which it may have under warranties or otherwise, shall have the right to reject and return such Goods at Seller’s expense, which Goods shall not be replaced by Seller, without prior written authorization from an authorized agent of LMK .
23) GOVERNING LAW – The contract resulting from acceptance of this Order by Seller shall be governed by and construed under the laws of the State of Illinois, and shall not be governed by or construed under the U.N. Convention On Contracts For International Sale Of Goods (“CIGS”), the parties agreeing that CIGS shall not apply to this Order or the enforcement or interpretation hereof.
24) NONWAIVER – The failure by LMK to enforce at any time, or for any period of time, any of the provisions hereof shall not be a waiver of such provisions nor the right of LMK thereafter to enforce each and every such provision.
25) COUNTERPARTS – This Order may be executed in any number of counterparts, and each such counterpart shall be deemed to be an original instrument.
26) SEVERABILITY – Nothing contained herein shall be construed so as to require the commission of any acts contrary to law, and wherever there is a conflict between any provisions of this Order and any present or future statute, law, ordinance or regulation, the former shall be curtailed and limited only to the extent necessary to make it comply with such statute, law, ordinance or regulation.
27) SUBCONTRACTING & ASSIGNMENT – Except as to raw material purchases or standard commercial articles or parts, Seller may not sub-contract any portion of the work without prior written consent of LMK. Assignment of this Order or any interest herein or any payment due or to become due thereunder without the prior written consent of LMK shall be void and of no effect and may, at the option of LMK, render this Order void.
28) REMEDIES – Remedies herein reserved to LMK shall be cumulative, and in addition to any other or further remedies provided in law or equity. In the event of any breach of this Agreement, LMK may suffer irreparable harm and have no adequate remedy at law. In such event or the threat of any such event, LMK will be entitled (in addition to any and all other remedies) to injunctive relief, in specific performance and other equitable remedies without proof of monetary damages or the inadequacy of other remedies, and without necessity of posting a bond or other security. In addition, Seller agrees to accept the actual value of liquidated damages assessed to LMK by its customers for non-conformance to LMK’s customer specifications for product and service quality, packaging, labeling, performance, documentation, warranty, or delivery.
29) WORK ON PREMISES – If Seller’s performance under this Order involves operations by Seller on the premises of LMK or one of its customers, Seller shall comply with all applicable provisions of federal, state and local laws and regulations including rules, safety requirements and regulations established for such premises. Seller shall take all necessary precautions to prevent the occurrence of any injury to persons or property during the progress of such performance. Seller shall indemnify LMK and its customers against all loss, which may result from any act or omission of Seller, its agents, employees, or sub-contractors.