TERMS AND CONDITIONS OF PURCHASE
Effective June 15, 2016
Agreement. All purchases of products, materials, goods, or services (“Goods”) by LGS Pace d/b/a LOOK Trailers (“LOOK”) are governed by and subject to these terms and conditions, as amended from time to time by LOOK. These standard terms and conditions form a binding agreement between LOOK and the seller (“Seller”) upon Seller’s acceptance of LOOK’s Purchase Order (the “PO”), either by signing and returning the attached acknowledgement, commencement of performance, or shipping or tendering delivery of any Goods (the “Agreement”). Acceptance of LOOK’s PO is limited to acceptance of its express terms and conditions. There are no other terms of agreement. No revisions to the PO will be valid unless in writing and signed by LOOK’s authorized representative. LOOK rejects any terms or conditions stated by Seller that are additional to or in conflict or inconsistent with this Agreement, and any such terms or conditions will be without force or effect, unless accepted in writing signed by LOOK’s authorized representative. This Agreement will govern notwithstanding any conflict with Seller’s acceptance, acknowledgment, or other stated terms.
Pricing & Discounts. Prices, including without limitation production costs, transportation charges, packaging, drayage, insurance, taxes, tariffs, customs duties, and any other cost, specified on any PO accepted by Seller is not subject to change without LOOK’s written consent. If Prices are omitted from the PO, Seller must advise LOOK of the Prices to be billed as soon as possible and before Seller’s manufacture, procurement, and shipment. No Prices will apply unless accepted by LOOK in writing. Notwithstanding applicable Prices, Seller must give LOOK the benefit of any price decline thru the later of the specified shipping date or the actual shipping date. If a discount is allowed for payment within a specified time, the time for making payment so as to obtain such discount will not begin to run until the date the invoice or Goods are received by LOOK, whichever is later. However, if an invoice or Goods are returned for correction, the discount period will not begin to run until LOOK receives the corrected invoice or the Goods, whichever is later. The postmark date of any payments will be the date used to determine whether payment was made within the specified time period to obtain the discount.
Delivery & Shipment. Quantities must equal the exact amount and type ordered unless otherwise agreed in writing by LOOK. At LOOK’s discretion, overshipments will be returned at Seller’s expense. All Goods must be packaged by Seller in suitable containers for protection in shipment and storage, in accordance with good commercial practices, and such Goods and/or packages must be properly and clearly labeled with LOOK’s PO and identification numbers, a description of the Goods, manufacturing dates, part numbers, and the quantity of items contained in each package. A copy of the package slip must be separately mailed or emailed directly to LOOK. LOOK’s count will be accepted as final on all shipments not accompanied by packing lists. Seller will bear all risk of loss until acceptance of delivery by LOOK. Title to Goods will pass upon delivery, or sooner if otherwise specified in the PO. Seller must strictly comply with delivery instructions (including schedule) stated on the PO. Seller may not make partial shipments or deviate from LOOK’s shipping instructions without its prior written consent. If to comply with LOOK’s required delivery date it becomes necessary for Seller later to ship by a more expensive way than agreed through the PO, any increased transportation costs resulting therefrom will be paid by Seller, unless rerouting or more expedited handling has been requested by LOOK in writing. Time is of the essence of this Agreement, and if delivery of items or rendering of services is not completed by the time promised, LOOK reserves the right without liability, and in addition to its other rights and remedies, to terminate this Agreement by notice effective when received by Seller as to items not yet shipped or services not yet rendered and to purchase substitute items or services elsewhere and charge Seller with any loss incurred. LOOK further reserves its right, at its sole discretion and in addition to its other rights and remedies, to require the specific performance of Seller’s obligations pursuant to the PO.
Advance Manufacture & Shipment. Seller may not manufacture in advance of Seller’s normal flow time or deliver any Goods in advance of the schedule set forth in the PO without LOOK’s written permission. LOOK reserves the right to return, shipping charges collect, all material received at its place of business, or other specified destination, in advance of the PO’s schedule. Seller may request, at the time Seller returns its acknowledgment of the PO, LOOK’s written consent to advance manufacture and/or delivery; however, shipments will be made in accordance with LOOK’s shipping schedule unless it gives such written consent otherwise.
Inspection & Testing. All Goods will be subject to final inspection, testing, and approval at destination by LOOK. Payment for the Goods delivered will not constitute acceptance. LOOK will have the right to hold, inspect, test, and reject any or all Goods that, in LOOK’s judgment, are defective or nonconforming, and reserves the right to hold, inspect, test, and reject such Goods within a commercially reasonable time, as determined by its own inventory, manufacturing, and sales requirements. Goods that must be installed, tested, or assembled before commercial use will not be deemed accepted until such installation, testing, or assembly indicates that the Goods are within specifications and operating properly. Upon notice, LOOK may make inspection visits at the site where the Goods are being designed or manufactured, or services being performed. Upon request, Seller will provide LOOK with written performance and status reports. Any inspection, testing, or reports will not relieve Seller of its warranty or other obligations under this Agreement.
Rejects. In its discretion, LOOK reserves the right to reject and hold all defective or nonconforming Goods at Seller’s risk and expense, and subject to Seller’s prompt advice as to disposal, or to return any such Goods freight collect. LOOK may charge Seller all storage and handling expenses, including without limitation unpacking, examining, repacking, storing, and shipping such Goods. No Goods returned as defective or nonconforming will be replaced without an order. If any merchandise fabricated by Seller is rejected by LOOK due to Seller’s fault or failure to meet the requirements, drawings, specifications, and/or samples under the terms of the PO, Seller will at LOOK’s option either replace such merchandise at Seller’s own expense or pay LOOK the replacement cost of the material used therein. LOOK’s acceptance of any nonconforming lot will not waive its rights to damages arising from such nonconformity, nor serve to modify Seller’s obligations hereunder, nor waive LOOK’s right to require conformity as to the remainder. Seller’s obligations and LOOK’s rights under this paragraph will be in addition to any other obligations of Seller, and rights or remedies that LOOK has in law or equity.
Payment. Unless otherwise specified by the PO, terms of payment will be net 45 days after the later of delivery of Goods, receipt of a certificate of work completion, or receipt of invoice, less any applicable discount, retention, or setoffs. Payment of the PO will be subject to deduction or setoff for any valid claim against Seller arising from this or any other transaction. All claims for money due or to become due from LOOK are subject to deduction or setoff by LOOK by reason of any counterclaim arising out of this or any other transaction with Seller. Such deduction or setoff will be in addition to any other rights or remedies available to LOOK at law or equity.If the PO permits progress payments, Seller must certify in writing the performance of the applicable payment milestones and grants LOOK a security interest in the work or Goods to the extent of such payments. In the event Goods have not been received, LOOK reserves the right to withhold payment until they have been received and checked. Seller’s sole remedy for late payment is to charge interest at a rate not exceeding .10% (one tenth of one percent) per month from the date of late payment.
Warranty. Seller expressly warrants that all Goods furnished by Seller pursuant to the PO will: (a) strictly conform to all specifications, statements of work, drawings, samples, and descriptions given, (b) be new, merchantable, and free from defects in design, material, workmanship, warning, and instruction, (c) conform to any statements made on the containers or labels or advertisements for such Goods, and be adequately contained, packaged, marked, and labeled, (d) be free from all liens, encumbrances, and security interests, (e) be fit and safe for their typically intended and particular purpose, and (f) satisfy all relevant governmental and industry standards. This warranty will apply for a reasonable period of time not less than four (4) years from date of delivery to LOOK’s facility. Without limiting this warranty, Seller also represents and warrants that it will obtain, assign, and otherwise provide LOOK the benefits of warranties and guarantees given by manufacturers or suppliers of material, products, or other items incorporated into Seller’s Goods, and will perform its duties so that such warranties or guarantees remain in full effect. Inspection, tests, and acceptance or use of the Goods furnished hereunder will not affect Seller’s obligations under this warranty, and such warranty will survive such inspection, tests, acceptance, and use. Seller’s warranty will run to LOOK, and LOOK’s successors, assigns, customers, and to all users of the products sold by LOOK.
Remedies. In addition to LOOK’s other remedies under this Agreement, Seller agrees to promptly and expeditiously correct or replace defective or nonconforming Goods, at LOOK’s option and without expense to LOOK, time being of the essence, provided that LOOK elects to give Seller this opportunity. Such election will not in any manner waive, limit, or modify any other rights or remedies that LOOK or its successors, assigns, customers, and/or product users may have against Seller at law or equity. All warranty work will be warranted under this Agreement for an additional four (4) years from the completion of repairs or replacement. If Seller fails to correct or replace the defective or nonconforming Goods promptly, LOOK, after reasonable notice to Seller or without notice in the event LOOK’s production requirements require immediate repairs or replacement, may arrange for such corrections or replacement and charge Seller for the costs incurred by LOOK in doing so. In any event, Seller will reimburse LOOK for all direct, consequential, incidental, or special damages incurred, including without limitation lost profits, delay costs, loss of use, and other damages, because of the defective/nonconforming Goods, or for any breach of this Agreement. LOOK retains the right to withhold any payments due Seller until Seller cures any breach or default under this Agreement. Seller must reimburse LOOK its reasonable attorney and paralegal fees and all costs or expenses incurred to enforce or defend its rights under this Agreement. To the extent specified herein, Seller’s remedy is exclusive of all other remedies.
Indemnification. Seller, at its expense and at LOOK’s option, will defend, indemnify, and hold harmless LOOK (and its directors, officers, employees, members, successors, and assigns) against all damages, claims, causes of action, suits, proceedings, liabilities, losses, and expenses (including without limitation reasonable attorney and paralegal fees) arising out of or resulting in any way, directly or indirectly, from any alleged or actual (a) defect or nonconformity in the Goods purchased hereunder, including without limitation defects in design, material, manufacture, workmanship, labeling, instructions, warnings, as well as any related product recall, (b) breach or performance of the PO by Seller or its agents, employees, or subcontractors, or any act or omission thereunder, (c) failure of Seller to comply with safety inspections or other requirements imposed by law, governmental agencies, or industry standards, (d) property damage or personal injury caused during the performance of services, delivery or installation of Goods, or other conduct of Seller or its subcontractors on premises owned, leased, occupied or under the control of LOOK or its customer, (e) patent, trademark or copyright infringement or unfair competition arising out of the sale, marketing, packaging, or advertising of Goods sold by Seller, or (f) liens, security interests, and/or encumbrances whatsoever asserted against such Goods, including claims to such Goods. LOOK preserves the option of retaining its own counsel without limiting in any way Seller’s obligation to cover the expense of a defense and indemnity, and LOOK retains the right to participate in the defense and resolution of any claim, suit, or proceeding. The defense and indemnity obligations are in addition to the warranty obligations of Seller or other remedies of LOOK.
Insurance. All materials, tooling, models, patterns, drawings and other personal property belonging to LOOK and furnished by LOOK to Seller or otherwise in Seller’s custody or possession will be at Seller’s risk from loss or damage from all hazards. Seller and any subcontractor must procure and maintain (a) general liability insurance (including for products) in an amount no less than $1 million per occurrence and $2 million in aggregate, and an umbrella of no less than $5 million if providing safety rated parts as determined by LOOK, (b) public liability and property damage insurance in reasonable and sufficient amounts to cover the indemnity and other obligations under this Agreement, and (c) workmen’s compensation insurance in accordance with state law and covering all employees engaged in the performance of Seller’s obligations hereunder. Insurance will be primary, and will pay in full before any other insurance available to LOOK. Seller must obtain waivers of subrogation for the benefit of LOOK. Seller must name LOOK as an additional insured under all insurance policies. Insurers must be financially sound and acceptable to LOOK. Prior to commencing any work relating to the Goods, Seller must provide LOOK with a certificate of insurance evidencing the above-required insurance coverage and indicating that such policy or policies may not be modified or canceled without at least 30 days’ prior written notice to LOOK. Seller shall provide LOOK with a new certificate of insurance evidencing such coverage within ten (10) days after each renewal date of such policy or policies.
Subcontracting & Assignment. Seller may not assign the PO, including any rights or obligations thereunder, or subcontract or delegate any part of the PO, without the prior written consent of LOOK. Any subcontractor must be listed and clearly identified on the PO. In the event of approval, all subcontractors will be bound by this Agreement, and Seller will procure confirmation of such agreement in writing. Seller will nonetheless remain liable for all acts and omissions of any subcontractor as though performed or omitted by Seller.
Patent, Copyright, & Lien Protection. To the extent that Goods are not manufactured pursuant to the designs originated solely by LOOK, Seller guarantees that the sale and/or use of all Goods will not infringe any United States or foreign patents, trademarks, copyrights or other intellectual property rights of any person or entity. All copyrightable or patentable Goods prepared for LOOK or arising out of anything done pursuant to the PO will constitute works made for hire. Seller agrees that this PO constitutes an assignment of such rights to LOOK and covenants that it will take all actions necessary to obtain and fully transfer such rights to LOOK without additional cost to LOOK.
Termination by LOOK. LOOK reserves the right to terminate the PO or any part hereof for its sole convenience at any time. In the event of such termination, Seller will immediately stop all work hereunder, and will immediately cause any of its suppliers or subcontractors to cease work. Subject to any terms on the face of the PO, Seller will be paid a reasonable termination charge consisting of a percentage of the PO price reflecting the percentage of the work performed before the notice of termination, plus actual direct costs resulting from termination. Seller will not be paid for any work done after receipt of the notice of termination, or for any costs incurred by Seller’s suppliers or subcontractors that Seller could reasonably have avoided. Seller may not unreasonably anticipate the requirements of the PO. In the event of this type of termination, Seller must submit any claim for the pro rata and direct costs of Goods produced or work performed in writing within thirty (30) days to LOOK, and in sufficient detail to permit consideration by LOOK of an appropriate payment. LOOK may also rescind or terminate the PO or any part thereof for cause in the event of (a) any default by the Seller (including any change in price for the Goods which is not approved in writing by LOOK), (b) a failure to comply with any of the terms and conditions of the PO, or (c) a failure by Seller to meet progress milestones, or a cessation or suspension of Seller’s business operations. Late deliveries, deliveries of defective or nonconforming products, and the failure to provide LOOK, upon request, with adequate assurances of future performance will also be among the causes that allow LOOK to terminate the PO for cause. In the event any delivery is not made in full within 30 days of the initial delivery date, this PO will automatically be deemed terminated for cause unless otherwise agreed in writing by LOOK. In the event of termination for cause, LOOK will not be liable to Seller for any amount, and Seller will be liable to LOOK for any and all damages sustained by reason of the default that gave rise to the termination. If it should be determined that LOOK has improperly terminated this contract for cause, such termination will be deemed a termination for convenience. In the event of any termination, Seller will protect LOOK’s property and Goods in Seller’s custody or control until final transfer to LOOK. At LOOK’s sole option, Seller will deliver to LOOK or dispose of any partially completed Goods or obsolete materials. LOOK’s right to terminate is in addition to any other rights or remedies at law or equity.
Cancellation for Insolvency or Proceedings. In the event of the institution of any proceedings by Seller against LOOK, or in the event of the institution of any proceedings against Seller, voluntary or involuntary, in bankruptcy or insolvency, or under any provisions of the United States Bankruptcy Code, or for the appointment of a receiver or trustee or an assignee for the benefit of creditors of Seller, LOOK will be entitled to cancel this contract forthwith, without liability for loss of anticipated profits or otherwise.
Intellectual Property & Confidentiality. Seller acknowledges LOOK’s ownership of all of its trademarks, service marks, copyrights, imprints, rights of publicity, patents, design patents, registered designs, industrial designs, trade dress, product design, trade secrets and other intangible rights (“LOOK Intellectual Property”) and agrees that Seller has no right, title or interest whatsoever in any LOOK Intellectual Property. Unless modified by a specific written agreement signed by LOOK and Seller, all information furnished by LOOK (or another person action on behalf of LOOK) and all information learned or observed about LOOK or its operations through performance of any PO will be confidential. The PO, together with all drawings, specifications and samples included therewith or referenced thereby, will be maintained in confidence by Seller. No such confidential information will be disclosed except to those Seller employees with need to know. Seller will promptly return all confidential information to LOOK upon request. Seller will not publicize the fact that LOOK has contracted to purchase Goods from Seller, nor will information concerning the PO be disclosed by Seller to or used for the benefit of any other party. Unless otherwise agreed in writing, no information disclosed by Seller to LOOK will be deemed confidential, and Seller will have no rights against LOOK with respect to its use thereof.
Tooling & Materials. Title to and the right of immediate possession of all tooling, jigs, dies, molds, designs, patterns, drawings, plates, negatives, and other materials furnished by LOOK to Seller (together “Tooling”) will be and remain in LOOK, in all stages of construction. When the cost of Tooling involved in the manufacture or production of Goods covered by the PO are included in the price per unit, then such items become the property of LOOK upon completion of the PO. Any Tooling otherwise paid for by LOOK will forthwith become LOOK’s property. Seller will insure Tooling at replacement value. Seller must keep accurate written records of all Tooling and provide such records to LOOK upon request. To the extent not already done, all Tooling must be marked or labeled by Seller to indicate LOOK is the sole owner of such property. Seller will not utilize Tooling owned by LOOK for the production of any other customer’s products unless agreed to in writing by LOOK.
Force Majeure. LOOK may delay delivery or acceptance occasioned by causes beyond its control. Seller will hold such Goods at the direction of the LOOK and will deliver them when the cause affecting the delay has been removed. LOOK will be responsible only for Seller’s direct additional costs in holding the Goods or delaying performance of this Agreement at LOOK’s request. Seller will also be excused if delivery is delayed by the occurrence of unforeseen and unforeseeable events that are beyond Seller’s control, provided Seller notifies LOOK of such events as soon as they occur and gives LOOK its best estimate of revised delivery dates. However, LOOK reserves the right to reject Seller’s revised delivery dates and to cancel the PO without any liability. If Seller’s production is only partially restricted or delayed, it will use its best efforts to accommodate the requirements of LOOK, including giving the PO preference and priority over those of other customers that were placed after the PO. In any event, Seller will maintain a contingency plan to avoid any delay in the delivery of Goods under the PO associated with events beyond Seller’s reasonable control.
Changes. LOOK will have the right at any time to make changes in drawings, designs, specifications, materials, packaging, time and place of delivery, quantities, method of transportation, and other terms of the PO, which will be immediately implemented by Seller. If any such changes cause an increase or decrease in the cost, or the time required for performance, an equitable adjustment may be made and the PO may be modified in writing accordingly, subject to LOOK’s approval.
Waiver. LOOK’s failure to insist on performance of any term or condition or to exercise any right or LOOK’s waiver of any breach hereunder will not thereafter waive any other terms, conditions, or privileges, whether of the same or similar type. No waiver by LOOK of any breach of the Agreement by Customer will be effective unless in writing nor operate as a novation or waiver of any other breach. LOOK will not lose any right because it has not exercised that right in the past.
Integration & Severability. The PO and any written documents that may be attached thereto and/or incorporated by specific reference constitute the entire agreement between the parties and supersede all previous communicates between them, either oral or written. All such previous communications are hereby abrogated and withdrawn. No stipulations, representations or agreements by LOOK or any of its officers, agents, or employees will be binding upon LOOK unless reduced to writing, and attached to and incorporated in the PO, and no local, general or trade custom may alter or vary the terms hereof. Whenever possible, all terms and conditions of the PO will be interpreted so as to be valid under applicable law. If any provision hereof is determined invalid under applicable law, such invalidity will be limited to such provision without invalidating the remainder of the PO or any other terms or conditions hereof; and, if any provision of the PO or this Agreement is found to be ambiguous or in conflict with any other provision hereof, such ambiguity or conflict will be resolved in the manner that provides the greatest protection, benefit, and limitations of liability to LOOK.
Limitation on LOOK’s Liability. In no event will LOOK be liable for anticipated profits or for incidental or consequential damages. LOOK’s liability on any claim of any kind for any loss or damage arising out of or in connection with or resulting from the PO or from the performance or breach thereof will in no case exceed the price allocable to the Goods or unit thereof that gives rise to the claim, less material, labor, and production cost savings of Seller. LOOK will not be liable for penalties of any description.
Period of Limitations. No claim, suit, or other proceeding arising out of or related to the Goods or this Agreement may be brought by Seller after one (1) year from the date it accrues. No discovery, estoppel, or other rule will apply to extend this limitations period.
Choice of Law & Forum. This Agreement will be considered to have been made in the State of Indiana and will be governed by and interpreted according to Indiana law, without giving effect to conflict of law principles. Except as provided below, any action, question, dispute, or claim arising out of or relating to the Agreement may be brought only in a federal or state court in or applicable to Elkhart, Indiana, having jurisdiction over the subject matter, and Seller irrevocably consents that such court will have personal jurisdiction over Seller and waives any objection that the court is an inconvenient forum. In the event any suit is brought against LOOK by Seller in violation of this Agreement or for claims inappropriate under the Agreement, Seller agrees to pay LOOK’s attorney and paralegal fees as well as costs to defend such suit.