Purchase Order Terms and Conditions - Silver Fern Chemical Inc.

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Purchase Order Terms and Conditions


The following Purchase Order Terms and Conditions, along with the language of the applicable individual Purchase Order, constitute the entire and exclusive contract (the “Terms”) between Silver Fern Chemical, Inc. and/or its affiliates, subsidiaries, successors and assigns (“Silver Fern”) and Seller.  The Terms supersede and replace all other terms, understandings, agreements and representations other than stated herein.  The Terms apply to every Silver Fern purchase of goods from Seller.  Without limitation, the Terms take precedence over and supersede all terms, conditions and other language set forth by Seller’s existing or future quote, invoice, bills of lading, terms or any other Seller prepared or provided contract-related document.  Silver Fern will not accept nor be bound by and hereby expressly rejects any different or additional terms or conditions relating in any manner to the purchase of goods — Silver Fern expressly rejects any incorporation attempt by the Seller of any other terms and conditions, whether from Seller or from what is common industry practice, and whether such attempt is made in relation to offering, correspondence, website, order acceptance, invoicing or any other means.  Without limitation, Seller’s (i) acceptance of the Purchase Order, (ii) any performance of Seller under the Purchase Order, or (iii) shipment or delivery of some or all of the goods shall constitute Seller’s assent to and acceptance of the Terms.  Silver Fern reserves the right to revoke or withdraw the Purchase Order, in whole or in part, prior to Seller’s acceptance.

1) Delivery, Timing/Quantity and Documentation. Unless otherwise expressly specified on the Purchase Order, the goods shall be transported F.O.B. destination, freight pre-paid by Seller at the date/time set forth in the Purchase Order. Without limitation, no Seller charges will be allowed for transportation, boxing, crating or other packaging of the goods.

a. TIME IS OF THE ESSENCE WITH RESPECT TO SELLER’S OBLIGATIONS HEREUNDER.  Seller must use Silver Fern’s Bill of Lading (“BOL”) provided.  If any delivery is, or is threatened to be, delayed, Seller shall promptly give written notice thereof to Silver Fern, together with all related relevant information.  The giving of such notice shall not relieve Seller of any other duty hereunder. Seller’s failure to deliver the goods of the quality, within the time, at the place, at the rate and in the manner specified by the Terms shall, at the sole option of Silver Fern, without waiver of any other Silver Fern rights and remedies, relieve Silver Fern of any obligation to accept and pay for such goods or any undelivered installment thereof.  For Seller’s such failure, Silver Fern shall be entitled to, without limitation, compensation for damages incurred and suffered including consequential loss.

b. If the goods are delivered to Silver Fern in excess of the quantities ordered, Silver Fern is not obligated to pay for the excess and any excess will remain at all times at Seller’s risk and will be returnable at Seller’s sole expense. Seller is liable for all damage which it or its carrier causes to the goods or to Silver Fern’s property, or the property of any Silver Fern customer, agent, warehouse, or other contractor, or any third party, in the course of delivery of the goods.  If goods are delivered before the date specified in the Purchase Order, Silver Fern shall be entitled at its sole discretion to refuse to take delivery or to charge Seller for insurance and storage of the goods until the Purchase Order date of delivery.

c. In the case of goods supplied from outside the country from where it will be delivered, Seller shall ensure that all required documents, including, without limitation, ISF documents, and accurate information is provided to Silver Fern as to the country of origin of the goods.  Upon Silver Fern’s request, Seller shall provide Silver Fern with an appropriate certification stating the country of origin of the goods sufficient to satisfy the requirements of (a) the U.S. customs authorities, and (b) any applicable export licensing regulations, including those of the United States.  Seller shall clearly mark all goods with their country of origin.  Seller shall be liable to Silver Fern for any additional costs, damages, duties, or taxes for which Silver Fern may be accountable should the country of origin be different from that advised by Seller, and for any costs, damages, duties, fees, fines and penalties assessed as a result of Seller’s failure to timely provide such required documentation on time.  Unless otherwise expressly stated in the Purchase Order, Seller is responsible for obtaining all the export and/or import licenses for the goods and shall be solely responsible for any delays due to such licenses not being available when required.

d. Seller shall provide Silver Fern, free of charge, with all relevant documentation (including but not limited to the Certificates of Analysis, Safety Data Sheets “SDS” and technical bulletins) before and at the time of delivery.  Silver Fern is entitled to rely upon and otherwise use the documentation without restrictions, including but not limited to, the right to make copies of the documentation.  The Certificate of Analysis report must specifically identify the material by reference to the number of the lot, or other similar designation and must indicate the applicable specification, revision, and Purchase Order designation.  Each part, component, or material quantity furnished shall be identified by lot or batch, traceable to the actual manufacturing process.

e. Where Silver Fern has requested that Seller deliver the goods direct to Silver Fern’s customer, a signed Proof of Delivery (“POD”) (with all details, including Silver Fern’s customer’s signatory name, clearly printed) must be provided to Silver Fern at its corporate headquarters.  The POD must quote Silver Fern’s Purchase Order number, quantity and description of goods delivered and be received by Silver Fern, free of charge, within three (3) days of delivery of the goods.

f. Seller shall package all goods in suitable one-way containers (which will not be returned) to permit safe transportation and handling, and insure against damage from weather or transportation.  Such containers must be appropriately labeled, contain packing sheets listing each item and its associated Purchase Order line item number. Seller must comply with Silver Fern’s packaging instructions or special packaging specification.  All goods shall be palletized unless directed otherwise by Silver Fern in writing.  Silver Fern’s Purchase Order number must appear on all containers, packing sheets, delivery tickets and bills of lading.

2) Price and Payment. The price payable for the goods shall be that specified in the Purchase Order.  Payment terms shall also be as stated on the Purchase Order.  (Silver Fern’s standard payment terms are Net sixty (60) days from date of invoice unless otherwise specifically agreed by the parties in writing.)  If Silver Fern is in delay with payment of amounts due, such delay shall not constitute a material breach that gives Seller a right to terminate the Purchase Order.  If Silver Fern objects to a Seller invoice, Silver Fern shall be entitled, without limitation, to suspend payment until the objection has been resolved between the parties.  Time for calculation of Silver Fern’s payment for the goods shall be computed from the date of Silver Fern’s receipt of an acceptable invoice for same or Silver Fern’s acceptance of the goods, whichever is later. Payment by Silver Fern to Seller shall not constitute Silver Fern’s acceptance of the goods.  All Seller invoices must be sent to Silver Fern’s address as stated in the Purchase Order and contain the Purchase Order number.  The prices listed in the Purchase Order are inclusive of all costs (including taxes) and expenses of Seller in providing the goods to the delivery point.

3) Title and Risk of Loss. Except if and as otherwise expressly dictated by Silver Fern’s Purchase Order shipping term:

a. Title to the goods shall pass to Silver Fern upon delivery of the goods to Silver Fern’s designated destination.

b. Seller assumes and shall be responsible for all risk of loss of, damage to and liability for (a) the goods and all works in process, materials and other property of Silver Fern, Seller or third persons in connection with Seller’s performance of the Purchase Order, until acceptance by Silver Fern of the goods, (b) any property received by Seller from, or held by Seller or its supplier for the account of, Silver Fern, from the time of Seller’s receipt or holding of same, and (c) any goods or part thereof rejected by Silver Fern or as to which Silver Fern has revoked acceptance, from the time of such rejection or revocation.

4) Inspection. Silver Fern is not obligated to perform a specific inspection of the goods after delivery.  Seller is obligated to subject all goods to be supplied to Silver Fern or to third parties under the Terms to an exit inspection prior to shipment.  Seller must provide Silver Fern with photographic and/or video documentation of the condition of all goods once prepared for transport, prior to releasing the goods for transport. Silver Fern is at all times entitled to inspect the goods to be delivered or to have the goods inspected by its representatives, both during production, processing and storage, and after delivery; Seller shall fully cooperate and assist Silver Fern in this regard.  Any such inspection by Silver Fern shall not mean that the goods shall be deemed delivered or accepted by Silver Fern. Silver Fern’s failure to discover a defect to the goods during an inspection, or after receipt of the required photographic and/or video documentation, shall not relieve Seller of any responsibilities if a defect to the goods is subsequently discovered.

5) Seller’s Warranty. Seller warrants and represents that the goods shall be new, merchantable, of the best available design, of the best available quality (including packaging), material and workmanship, be without fault, contaminants or defects and strictly conform in all respects with the Purchase Order and any specifications supplied or advised by Silver Fern to Seller.  In addition, Seller warrants and represents to Silver Fern that:

a. Seller has good and marketable title to all of the goods delivered to Silver Fern hereunder, free and clear of all liens and encumbrances and, immediately following delivery of same to Silver Fern, Silver Fern shall have good and marketable title to all such goods, free and clear of all liens and encumbrances;

b. The goods are supplied in accordance with the specifications, samples, drawings and/or descriptions agreed by the parties and have been tested accordingly by Seller;

c. The goods are fit for their intended purpose and for such particular uses specified by Silver Fern and/or otherwise known by Seller;

d. The goods, their packaging, and all labeling are compliant with all applicable laws and regulations (including, without limitation, all safety, health and environmental laws and regulations) which may govern in any jurisdiction which may apply;

e. All information provided by Seller to Silver Fern in relation to the goods shall be true, accurate, complete and timely in all material respects, including, without limitation, Seller’s product literature;

f. The goods and any related information shall not infringe any patent, trademark, copyright or other intellectual property right;

g. The price for the goods specified in the Purchase Order is Seller’s lowest price currently in effect for the quantity of the goods involved;

h. There shall be greater than eighty-percent (80%) of the goods’ remaining published shelf life from the date of Silver Fern’s receipt of the goods; and

i. Seller has provided Silver Fern with all product, technical and safety information relating to the goods as may be required by the Terms and/or otherwise at law.

Seller’s warranties contained herein (and any consumer warranties or similar undertakings of Seller) shall be enforceable by Silver Fern’s customers and any subsequent owner or user of the goods or products produced from or containing the goods as well as by Silver Fern. Such warranties shall survive Silver Fern’s inspection, testing, acceptance and payment for such goods.  Seller’s warranties set forth herein are in addition to and not in lieu of any warranty or service guarantee offered by Seller or implied or provided by law.

6) Certain Remedies. Seller shall be liable for all damages, including all consequential, incidental, third party and special damages incurred by Silver Fern for any breach of the Terms, defective goods and/or as a result of Seller’s failure to meet or otherwise strictly comply with Seller’s warranties contained herein.

a. Without limitation to any other Silver Fern right or remedy available at law, if (i)  the goods are defective in any way or do not conform to Seller’s warranties or with the other provisions of the Terms, (ii) Seller fails to meet or otherwise strictly comply with any warranty contained herein, and/or (iii) Seller otherwise breaches any provision of the Terms, Silver Fern may revoke its acceptance of or may reject any or all of the goods, and/or request a price reduction.  Upon such revocation, rejection and/or price reduction request, and without limitation to any other right or remedy available at law, Silver Fern may return, at Seller’s expense, any or all of the goods or require prompt correction or replacement of the goods, also at Seller’s expense.  Seller is only entitled to remedy the defect by repair or by delivery of substitute goods if Silver Fern expressly agrees thereto – Seller shall bear all costs and all risk in the event of remedy by repair or by delivery or substitute goods.  Seller has the same liability for permitted repaired or exchanged parts of the goods as for the original goods. Silver Fern, at its discretion, may return or keep defective goods at the expense of Seller until Seller has issued further instructions as to what should be done with the goods. Storage of such goods will be made at Seller’s account and risk.

7) Indemnification. Seller shall, in addition to any other remedy available to Silver Fern under the Terms or at law, defend, indemnify and hold fully harmless Silver Fern, and its affiliates, officers, shareholders, directors, employees, agents, customers, users, and their respective successors and assigns from and against any and all claims, losses, liabilities, damages and expenses of any nature (including, without limitation, attorneys’ fees, court costs and expenses) arising out of, directly or indirectly, or relating in any manner to: (a) Seller’s performance of, or failure to perform, any of its obligations hereunder, including without limitation Seller’s breach of any warranty herein; (b) any claim of infringement or violation of any trademark, copyright, patent or other intellectual property right relating to any of the goods; (c) any product liability or other claim or action with respect to any of the goods or any products produced from or containing the goods, except to the extent such claim or action is a direct result of Silver Fern’s negligence or wrongful acts or omissions; (d) Seller’s or the goods’ failure to comply with applicable laws, (e) Seller’s failure to comply with its safety obligations set forth herein and/or otherwise at law relating to the goods, and/or (f) Seller’s (and/or Seller’s employee’s, agent’s or subcontractor’s) negligent or wrongful acts or omissions.

8) Compliance with Law. Seller shall strictly comply with all applicable laws, governmental regulations and any other legal requirements which may in any manner affect or be applicable to the goods and/or Seller’s performance hereunder, including without limitation any applicable requirement under the Toxic Substances Control Act (the “TSCA”) (and all other rules and regulations of the Environmental Protection Agency), the Fair Labor Standards Act, and laws concerning environmental protection and occupational health and safety. Such Seller compliance shall include, without limitation, strict compliance with any regulation, statute, statutory instrument, standards, business practice, law, production, Purchase Order resolution, notice, rule of court, bylaw, directive, code of conduct or other instrument or requirement having the force of law within any national or local jurisdiction issued, declared, passed or given effect to in any manner in the United States of America.  To the extent that any codes, guidance and/or legal requirements are advisory rather than mandatory, the standard of compliance to be achieved by Seller shall be the best practice of the relevant industry. In all cases the costs of compliance shall be borne solely by Seller.  Not by way of limitation to the foregoing, Seller further certifies:

a. That all goods constituting or containing chemical substances subject to the TSCA (including substances which Seller does not make or import) are correctly listed on the TSCA Chemical Substances Inventory, 15 USC 2601 et seq. and regulations thereunder, or else comply with an exemption to such Inventory listing.  Seller shall notify Silver Fern in writing (prior to delivery) of ANY TSCA restrictions known to it governing the use and disposal of the goods, including, but not limited to, any proposed or final Significant New Use Rule restrictions;

b. While supplying goods, Seller will comply with the US Foreign Corrupt Practices Act, the UK Bribery Act, local anti-corruption laws and all other laws prohibiting any form of commercial or private bribery.  Seller represents and warrants that no goods supplied will be manufactured by child or slave labor or by victims of human trafficking.  Seller warrants that neither it nor any of its employees, agents or representatives have offered or given, or will offer or give, any gratuities to Silver Fern; and

c. Seller shall fully cooperate with Silver Fern including by sharing information permitting Silver Fern representatives to visit and audit its sites and addressing any concerns raised by Silver Fern or any governmental entity or authority, to assure there is continuous and full compliance by Seller with all applicable laws.  Seller will fully comply with all reasonable requests from Silver Fern for information, documentation and certifications relating to Seller’s compliance with this Section 8.

9) Insurance. Without limiting other Seller Terms obligations or liabilities, and except if and as otherwise expressly dictated by Silver Fern’s Purchase Order shipping term, Seller shall at its sole expense obtain and maintain in full force and effect adequate liability insurance to insure all of Seller’s obligations under the Terms and the sale of goods, and Silver Fern reserves the right to establish minimum insurance requirements (over and above as set forth below) with respect to same.  Said insurance shall, without limitation, cover any other claims, damages or demands which may be brought or made against Seller and/or Silver Fern by any person suffering any injury, damage or loss in connection with the Terms and/or goods including, without limitation, Personal Injury, Property Damage and Product Liability Insurance with limits of not less than $2,000,000.00 per occurrence.  Seller shall produce to Silver Fern its current policy or policies of insurance; Seller shall further arrange for Silver Fern to be designated as an “additional insured” under the policy or policies.

10) Changes. Seller shall notify Silver Fern in writing at least thirty (30) days prior to such change of all changes in raw materials, manufacturing or testing methods/processes, packaging, shelf life, site of manufacturer or any other material changes which may affect the quality of the goods delivered herein. Such changes must be agreed upon in advance by Silver Fern in writing. Without limitation to other rights and remedies, Silver Fern in its discretion may terminate the Purchase Order in whole or in part if it does not consent to the changes without liability to Silver Fern

11) Termination. Silver Fern may at any time terminate the Purchase Order or any part thereof for its sole convenience and Silver Fern’s sole liability upon such termination for convenience shall be payment to Seller for any goods delivered by Seller prior to notice of such termination for which payment has not already been made.  Without limitation, Seller shall not be entitled to any damages (including, without limitation, consequential damages) as a result of any such termination for convenience.

12) Force Majeure. Under no circumstance shall Silver Fern be liable to Seller and/or any third party for non-performance, delays or defaults due to acts of God, war, labor dispute, lock-outs, civil commotion, accident, fire, flood, government action, shortage of labor, epidemic, pandemic (and/or any virus or disease), shortage or failure of usual transportation mode, and/or any other circumstance beyond Silver Fern’s direct control (broadly, a “Force Majeure Event”).  Without limitation, Silver Fern reserves the right to defer the date of delivery or payment, to reduce the volume of Goods ordered, and/or to cancel a Purchase Order due to a Force Majeure Event, all without liability to Silver Fern.

13) Product Safety and Recall. Seller shall immediately notify Silver Fern (and where such notification is oral, confirm such notification in writing as soon as reasonably practicable) if  Seller has ANY reason to believe or suspect any of the following: (i) that there is any defect in the goods that would render them unsafe to any purchaser or user of such goods or cause an unacceptable risk to consumers, and/or (ii) that there is any error or omission in the instructions for use and/or assembly of the goods which exposes or may expose consumers to any risk of death, injury or damage to property.  Seller shall promptly provide Silver Fern with all relevant detailed information relating to the circumstances giving rise to the notification.

a. Without limitation to Seller’s product safety obligations at law, Seller shall at its own expense: (i) use all reasonable endeavors to cooperate with Silver Fern to take any remedial action necessary to minimize the impact of any defect in the goods including without limitation making any agreed notifications to the relevant enforcement authorities, and issuing any written or other notification to Silver Fern’s customers about the manner of or operation of the goods; (ii) recall any goods already sold by Silver Fern to its customers; (iii) collect any recalled goods or defective goods held by Silver Fern; (iv) appropriately destroy and dispose of any recalled goods; (v) comply with any reasonable directions (including, without limitation, any request of Silver Fern) to label the goods in a manner that Silver Fern deems appropriate to warn consumers; and/or (vi) comply with any other arrangements as may be agreed between the parties relating to the goods and safety issues.  For avoidance of doubt, Seller is fully and solely liable for any damage to goods, property or person that the delivered goods (or elements therein) may cause relating to any safety issue, whether the claims are directed against Silver Fern, Seller or both and whether Seller has been negligent or not.  Accordingly, Seller is fully and solely responsible for any and all claims on the basis of product liability.

14) Taxes. Relating to the goods, Silver Fern shall be responsible only for taxes that Silver Fern is required to pay under applicable statutes. All other taxes with respect to any of the same shall be paid by Seller.

15) Silver Fern’s Damages Limitation. In no circumstance shall Silver Fern and/or its owners, employees or agents be liable for SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE OR ANY CONSEQUENTIAL DAMAGES (including, without limitation, lost profits) of Seller or such claims or damages of any third party involving Silver Fern WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION.  IN NO EVENT WILL THE LIABILITY OF SILVER FERN AND/OR ITS OWNERS, EMPLOYEES OR AGENTS TO SELLER EVER EXCEED THE TOTAL AMOUNT OF THE PURCHASE PRICE FOR THE APPLICABLE GOODS PURCHASED.  In the event that any claim is made against Silver Fern, Seller agrees that any claims made or liabilities assessed to Silver Fern are limited to the Silver Fern corporation itself – no liability or damages shall be sought, collected from or assessed to any individual shareholder, director, officer, employee, or representative of Silver Fern under any circumstance.

16) Law and Miscellaneous. At Silver Fern’s sole discretion, jurisdiction and venue of any lawsuit relating to these Terms and/or the purchase of goods may be laid in King County Superior Court, Seattle, Washington.  The validity, interpretation, performance and enforcement of these Terms shall be governed by the laws of the State of Washington.  These Terms are severable; the invalidity or illegality of any term shall not affect the others.  The prevailing party to any lawsuit relating to these Terms and/or the sale of goods shall be entitled to recover from the other party all pre-judgment and post-judgment attorneys’ fees, costs, and expenses incurred.  Silver Fern’s failure to strictly enforce any term or condition herein shall not constitute a waiver of Silver Fern’s right to strictly enforce such terms or conditions at any time in the future.  Seller may not assign, subcontract or transfer its interest in the Terms or purchase of goods without Silver Fern’s prior written consent.  (Silver Fern may assign or transfer the benefits of the Terms or purchase of goods, in whole or in part, including without limitation Seller’s warranties, without Seller’s approval.)  The Terms may not be amended, modified or supplemented except in a writing signed by Silver Fern.  The headings of the Sections of the Terms are for convenience only and are not part of the agreement between the parties.  The Terms nor any ambiguity found herein shall not be construed against a party merely because such party was the drafter.  Silver Fern’s rights and remedies set forth in the Terms shall not be exclusive and are in addition to all other rights and remedies provided by law.

17) Confidentiality and Personal Data. Seller agrees that all drawings, prints, other technical material, pricing information and/or other proprietary information which Silver Fern provides to Seller, whether prepared by Silver Fern or by third parties under contract to Silver Fern, contain data which embody trade secrets and confidential know-how of commercial value to Silver Fern or third parties under contract to Silver Fern.  Accordingly, except as otherwise required by applicable law or judicial process, Seller agrees (a) to keep such information strictly confidential; (b) that it will not disclose such information to any other person, corporate division or entity; (c) that it will not use such information except in direct connection with the goods purchased hereunder; and (d) that it will not sell, lease, loan or permit any other person, corporate division or entity to use such information for any purpose, without Silver Fern’s prior written consent.

Seller shall restrict disclosure of such confidential material to such of its employees, agents or subcontractors as need to know the same for the purpose of discharging Seller’s obligations to Silver Fern and shall ensure that such employees, agents or subcontractors are subject to like obligations of confidentiality as bind Seller. Nothing herein shall restrict the sharing or use of information generally available to the public.   In addition, the purchase of the goods does not authorize Seller to use Silver Fern’s name or make reference to Silver Fern for any purpose in any release for public or private dissemination; nor shall Seller divulge or use in any advertisement or publication any specifications, data, or other information pertaining to or relating to this usage without the prior written consent of Silver Fern.  Seller agrees to comply with all applicable laws relating to privacy and protection of personal data in respect of personal data obtained by or disclosed to it, pursuant to the Purchase Order.  Seller agrees to (i) only process personal data for the purposes of the Purchase Order and as directed by Silver Fern, (ii) timely report to Silver Fern any complaints or notices it has received regarding the misuse or disclosure of personal data, and (iii) maintain appropriate measures to protect against unauthorized processing, access or disclosure of personal data and notify Silver Fern of any such unauthorized use, access, or disclosure.

18) Notices. All notices and other communications relating to the Terms, including consents, shall be in writing and shall be addressed to Seller or Silver Fern at the addresses set forth on the face side of the Purchase Order and shall be considered given when: (i) delivered personally, (ii) sent by confirmed facsimile or email, (iii) sent by commercial overnight courier with written verification receipt, or (iv) three (3) days after having been sent, postage prepaid, by first class or certified mail.