MASTERCRAFT BOAT COMPANY, LLC's ("MASTERCRAFT", "AVIARA")
STANDARD TERMS AND CONDITIONS OF PURCHASE
In addition to any terms and conditions of purchase on the face of this Purchase Order, or UNLESS OTHERWISE AGREED TO IN WRITING, the following provisions shall also apply:
1. PRICE.ORDER. Vendor agrees that the materials and/or services specified will be charged at the lowest prevailing market price on the date of shipment, or at the price This order shall not be filled at prices higher than indicated on the face hereof unless otherwise provided in writing. If price is not indicated on this applied upon Purchaser's last similar order with Vendor, whichever is lower.
2. CASH DISCOUNT. If invoices are subject to cash discount and are not mailed when dated, the discount period will begin on the date the invoice is received by Purchaser. Vendor's failure to attach any necessary documents to the invoice shall delay the beginning of the discount period until such documents are received.
3. INDEMNIFICATION. Vendor agrees to indemnify, defend and hold Purchaser harmless from any losses, costs, expenses, (including, without limitation, any shipping costs associated with delivery of any replacement parts and/or the return of any defective parts; repair and/or installation labor costs; costs of any ancillary supplies and materials utilized in connection with the repair and/or replacement; lost dealer profits; administrative costs; and attorney's fees and expenses), demands, claims, liabilities, damages or causes of action of any kind or character, in any manner arising out of or relating to: (a) any products, materials or services provided by Vendor; (b) any work performed by Vendor on any premises owned by, or under the control of, Purchaser or any of its affiliates; (c) any representations or warranties made by Vendor in connection with any products, materials or services provided under this Purchase Order; or (d) any negligence (either acts or omissions) of Vendor or any of its officers, directors, employers or agents.
4. PATENT PROTECTION. Unless the work to be performed or the articles to be supplied are in accordance with a design originated by Purchaser, Vendor agrees to indemnify and defend Purchaser, its affiliates and customers against all suits at law or in equity and any and all damages, loss, expenses, counsel fees and costs resulting from claims for actual or alleged patent infringements arising out of the purchase or sale of such goods or services supplied under this order, or out of any use of the goods or services, provided that Vendor reasonably could have been expected to know that such was intended.
5. WARRANTY. Vendor warrants and guarantees that any article supplied under this order will be free from any defect in materials and/or workmanship and will be fit for the purposes for which intended and for any special use known by Vendor to be contemplated by Purchaser. This warranty shall be in addition to any other warranties of Vendor, expressed or implied, which may be provided by Vendor or by operation of law.
6. INSURANCE. Vendor shall at all times maintain (a) comprehensive general liability insurance, including coverage for products liability, (b) worker's compensation insurance covering any claims of injury to any employees or agents of vendor sustained while on any premises owned by, or under the control of, Purchaser or any of its affiliates, and (c) automobile insurance covering any services provided by Vendor which involve the transportation of Purchaser's products or personnel. Vendor shall provide Purchaser with certificates of insurance for such insurance coverages showing that Purchaser has been named as an Additional Insured with respect to Vendor's general liability insurance policy.
7. PURCHASER'S PROPERTY. Patterns, dies, molds, jigs and fixtures furnished to Vendor by Purchaser or specifically paid for by Purchaser, shall be the property of Purchaser and subject to removal by Purchaser upon completion of the order. Such property shall be held by Vendor for Purchaser at Vendor's risk and shall be used only in filling Purchaser's orders. Vendor further agrees not to make use of any data, designs, drawing, specifications or other information furnished by Purchaser except for the purposes of this order, and Vendor agrees not to disclose same to others and to return all copies immediately to Purchaser upon demand.
8. ACCEPTANCE. Purchaser reserves the right to refuse acceptance of all or part of any articles or services if not provided or performed in compliance with a duly executed purchase order and all of the terms and conditions thereof, including, but not limited to, quantity, quality and date of delivery. Articles so rejected may be held at the expense and risk of Vendor or returned at the expense and risk of Vendor, at Purchaser's sole option. Rejected goods shall not be replaced by Vendor without Purchaser's written consent. Purchaser shall have thirty (30) days in which to notify Vendor of rejection, except in the case of latent defects, where the period shall be thirty (30) days from receipt of actual knowledge of the defect by the Purchaser.
9. PACKAGES AND TRANSPORTATION. All packages must be marked with Vendor's name, Vendor's order number and Purchaser's order number. Unless otherwise agreed to in writing, Purchaser shall not be responsible for any packaging or drayage charges or for transportation by other than the cheapest means.
10. TAXES. Vendor agrees to pay any taxes imposed upon him by virtue of this order and to accept and use any tax exemption certificates supplied by Purchaser if acceptable to the applicable tax authorities. In the event Vendor collects and pays any tax upon Purchaser's behalf and it appears such tax was erroneously collected and paid, Vendor will promptly notify Purchaser of same and take steps to obtain the refund thereof for the Purchaser.
11. COMPLIANCE WITH LAW. The goods to be furnished will be produced in compliance with all the provisions of the Fair Labor Standards Act, as amended, and Vendor will comply with all other applicable federal, state and local laws, rules and regulations pertaining thereto.
12. CHANGES. Purchaser reserves the right to change quantities, delivery schedule and/or specifications upon notice to Vendor, in which case the price shall be equitably adjusted in writing by mutual agreement of the parties.
13. FORCE MAJEURE. Purchaser will be relieved from accepting delivery hereunder in the event of fire, labor trouble, embargo, explosion, floods, war, accidents, transportation delay or failure, partial or complete suspension of manufacturing operations and/or any circumstances beyond Purchaser's reasonable control. In such event, Purchaser may extend the delivery period or cancel deliveries not yet made without further liability.
14. BANKRUPTCY. If either party becomes a debtor under any proceedings under the Federal Bankruptcy Act or under any state insolvency law (voluntary or involuntary), and such proceedings are not dismissed within ten (10) days, or if a receiver be appointed for either party, the other party may cancel any undelivered portion of this order.
15. NON-ASSIGNMENT. Vendor shall not assign all or any part of this purchase order, nor any claim arising hereunder, without Purchaser's prior written consent.
16. SET-OFF. Purchaser shall be entitled at all times to set-off any amount owing from Vendor to Purchaser, or to any of Purchaser's affiliates, against any amount payable in connection with this order.
17. GOVERNMENT CONTRACT. If the face of this order indicates that the goods ordered herewith are in furtherance of a government contract or subcontract, the additional terms and conditions attached hereto shall apply.
18. ACCEPTANCE OF TERMS AND CONDITIONS. Purchaser hereby rejects any and all counter-offers which may be made by Vendor to the extent inconsistent herewith, and if goods are shipped which conform in quantity, description and price to those on the face of this order, such act on the part of the Vendor shall constitute acceptance of the terms and conditions herein.
19. OVER-SHIPMENTS. Shipments in excess of accepted industry standards of ten percent (10%) over the quantity ordered will not be accepted except by prior approval.