Terms & Conditions
CVCO, LLC (dba Cashco).
STANDARD TERMS AND CONDITIONS OF PURCHASE
These CVCO, LLC Standard Terms and Conditions of Purchase (the “Terms”) shall apply and form a part of this Purchase Order and Contract (as those terms are defined below), except as otherwise agreed to in writing by CVCO, LLC (the “Purchaser”).
1. Definitions. The following words shall have the following meanings:
Contract: The Purchase Order accepted or executed by Seller and these Terms which are automatically part of the Purchase Order.
Goods: Any goods and/or services agreed in the Contract to be purchased by or supplied to Purchaser from Seller (including any part or parts of them).
Purchaser: CVCO, LLC
Purchase Order: Purchaser’s standard order form for the supply of the Goods, of which these Terms are automatically part.
Seller: The person, firm or company who accepts and/or executes the Purchase Order.
Specifications: The specifications for the Goods provided by Purchaser to Seller or by Seller to Purchaser as shall be agreed between the parties.
2. Entirety of Contract. Seller agrees to provide and sell to Purchaser the Goods, and Purchaser agrees to purchase and pay for the Goods, per these Terms as well as the requirements described in the Purchase Order. This Contract constitutes the complete and entire agreement between the parties and unless agreed otherwise, supersedes all previous negotiations, discussions, communications, representations, course of dealing, usage of trade, or agreements, whether oral or written, between the parties with respect to this Contract or the Goods purchased through it. No agreement or understanding varying, contradicting, or extending these Terms, including but not limited to Seller-provided terms and conditions included within a quote, proposal, order acknowledgement, invoice, or like document, will be binding unless in writing, expressly incorporated in the Purchase Order, and signed by duly authorized representatives of both parties.
3. Acceptance. Seller shall be deemed to have accepted this Purchase Order upon the occurrence of any one of the following: (1) acknowledgment in writing, (2) commencement of performance by the Seller; or (3) delivery in whole or in part of the Goods. Any inconsistencies in this Purchase Order shall be resolved in accordance with the following descending order of precedence: (1) these Terms; (2) the face of the Purchase Order and/or task order, release document, or schedule (including any continuation sheets), as applicable; (3) any supplementary terms, conditions, or provisions referenced in the Purchase Order; and (4) the statement of work and other documents included with or incorporated into the Purchase Order by reference.
4. Variation to the Goods. Purchaser may at any time, by notice, make changes to the quantity, design or Specifications, method of packing or delivery, the place or date of delivery, or the performance of the Contract. Seller shall proceed immediately to perform this Purchase Order as changed. If any such change increases or decreases the cost of or time required for the performance of the Contract, the price shall be ratably adjusted, and a reasonable adjustment shall be made to the time of delivery or date for performance. Seller shall notify Purchaser of such adjustment. Any claim by Seller for adjustment under this Section must be asserted in writing within twenty (20) days from the date of receipt by Seller of the notification of change; provided, however, that Purchaser, if it decides that the facts justify such action, may receive and act upon any such claim asserted at any time prior to final payment under this Purchase Order. Nothing in this Section shall excuse the Seller from proceeding with the Purchase Order as changed.
5. Product Changes/Part Obsolescence. Seller shall provide written notification to Purchaser prior to making any changes to Seller’s tolling, facilities, materials, or processes, and/or provide written notification to Purchaser upon becoming aware of any such changes by Seller’s Subcontractors at any tier, which could affect the Goods in this Purchase Order. This includes, but is not limited to, changes to fabrication, assembly, handling, inspection, acceptance, testing, manufacturing location, parts, materials, or suppliers.
6. Quality and Defects. Seller warrants that the Goods shall be of the best available design, quality, material and workmanship, be without fault and conform in all respects with this Purchase Order and the Specifications and shall be fit for the purpose as intended by Purchaser. Purchaser’s rights under these conditions are in addition to statutory conditions and to any warranties of additional scope given to Purchaser by Seller. Seller shall comply with applicable safety regulations and quality assurance systems requested and approved by Purchaser.
7. Part Preservation. All Goods have an expected shelf life of six (6) months or longer, unless otherwise indicated. Corrosion, the result of oxidation or interaction with air or its environment that causes metals to deteriorate, must be prevented. It is Seller’s responsibility to take the necessary steps required to prevent the Goods from deteriorating. Seller agrees to accept responsibility for any Goods that do not maintain a minimum six-month shelf life. All Goods with a ground surface finish should have some form of preservation treatment and be packaged properly to extend shelf life. Purchaser must approve any exceptions in writing. Seller shall provide Purchaser with detailed instructions on the storage of the Goods and warrants that if such instructions are observed, the Goods will, for a period of five (5) years after delivery, be capable of operation as intended.
8. Warranty and Indemnity. For a period of twelve (12) months from the date of delivery or from the completion of performance of the Contract, Seller shall keep Purchaser indemnified in full against all loss, damages, injury, cost and expenses (including reasonable legal and other professional fees and expenses) awarded against or incurred or paid by Purchaser as a result of or in connection with such actions as described below by Seller, its agents or subcontractors: (a) defective workmanship, quality or materials including, but not limited to, faulty design and latent defects; (b) non-conforming Goods; (c) improper performance under this Contract; and (d) any claim made against Purchaser in respect of any liability, loss, damage, injury, cost or expense (together “Loss") sustained by its employees or agents or by any customer or third party to the extent that such Loss was caused by, relates to, or arises from the Goods as a consequence of a direct or indirect breach or negligent performance or failure or delay in performance of the terms of the Contract by Seller. Any replacement parts supplied by Seller under the warranty above mentioned shall be subject to the same obligations of indemnity as of the date such replacement parts are supplied to Purchaser. No time limit shall apply to the above warranty or indemnity in relation to latent defects.
9. Remedies. Purchaser should accept the Goods or give Seller notice of rejection within a reasonable time, notwithstanding any payment or prior test or inspection; provided, however, no inspection, test, delay, failure to inspect or test, or failure to discover any defect or other nonconformance shall relieve Seller of any obligations under this Contract or impair any rights or remedies of Purchaser or its customer(s). Without prejudice to any other right or remedy available to Purchaser, if any Goods are not supplied in accordance with, or Seller fails to comply with any of the terms of this Contract, Purchaser shall be entitled to avail itself of any one or more of the following remedies at its discretion, whether or not any part of the Goods have been accepted by Purchaser: (a) rescind the Purchase Order; (b) reject the Goods (in whole or in part) and return them to Seller at the risk and cost of Seller, in which case Seller shall fully refund to Purchaser all payments made to date; (c) at Purchaser's option, give Seller the opportunity at Seller’s expense either to remedy any defect in the Goods or to supply replacement Goods and carry out any other necessary work to ensure that the terms of the Contract are fulfilled; (d) refuse to accept any further deliveries of the Goods; (e) carry out at Seller’s expense any work necessary to make the Goods comply with the Contract; and (f) claim such damages as may have been sustained in consequence of Seller’s breach of the Contract.
10. Patent Warranty and Indemnity. Seller warrants that the Goods delivered under this Contract, and the sale and the use of the Goods in their intended manner shall not infringe, or contribute to infringe, on any patent or copyright and shall not violate the trade secret rights of another. Seller shall defend, indemnify, and hold harmless Purchaser, its successors, assigns, customers, and users of Purchaser’s products, from and against all claims, suits, losses, and damages, including reasonable attorneys’ fees, costs, and expenses awarded based upon a claim of infringement, or contributory infringement of any patent or copyright, or violation of another’s trade secret rights, by reason of the use or sale of the Goods.
11. Insurance. Seller shall maintain a comprehensive liability insurance policy including third party and contractual liability coverage for bodily injury and property damage, and product liability coverage, and shall, upon request, provide Purchaser with a certificate of insurance. Purchaser reserves the right to terminate this Contract at any time if Seller fails to maintain such insurance.
12. Shipment and Delivery. Shipping and delivery arrangements shall be as defined in the Purchase Order. More specifically, deliveries shall only be accepted by Purchaser during normal business hours at such location as specified by Purchaser, and Seller shall follow Purchaser's shipping instructions regarding the common carrier assigned to deliver the Goods. If Seller fails to follow Purchaser’s shipping instructions, Seller shall be responsible for paying all shipping costs. All shipments shall include a packing list containing the Purchase Order number, number of packages, contents and quantity, and in the case of partial delivery, the outstanding balance remaining to be delivered. Time for delivery shall be of the essence. Without prejudice to any remedy listed herein or to any other rights which Purchaser may have, if the Goods are not delivered on the due date then, Purchaser reserves the right to: (a) cancel the Contract in whole or in part; (b) refuse to accept and to pay for Goods, as well as any subsequent deliveries of the Goods; (c) recover from Seller any expenditure reasonably incurred by Purchaser in obtaining the Goods in substitution from another supplier; or (d) claim damages for any additional costs, loss, or expenses incurred by Purchaser that are attributable to Seller’s failure to deliver the Goods on the due date. Where Purchaser agrees in writing to accept delivery assignments, this Contract shall be construed as a single Contract in respect of each installment. Nevertheless, failure by Seller to deliver any one installment shall entitle Purchaser, at its option, to treat the entire Contract as repudiated. If the Goods are delivered to Purchaser in excess of the quantities ordered, Purchaser shall not be bound to pay for the excess and any excess shall be and shall remain Seller's risk and shall be returnable at Seller’s expense. Purchaser shall not be deemed to have accepted the Goods until it has had seven (7) days after delivery to inspect them. In addition to any other remedy available, Purchaser shall have the right to ask for return and replacement of any defective Goods after inspection or within a reasonable time after it becomes aware of a latent defect.
13. Title and Risk. All Goods supplied by Seller shall become the property of Purchaser upon payment therefore or upon delivery, whichever occurs earlier, and Seller shall be responsible for and shall bear any and all risk of loss or damage to the Goods until delivery. Upon delivery, Seller shall cease to bear the risk of loss or damage; provided, however, that any loss or damage, whenever occurring, which results from Seller's non-conforming packaging shall be for Seller’s account, and the risk of loss of nonconforming Goods remains with the Seller until cure and acceptance of conforming Goods.
14. Packing Instructions. All Goods shall be packed, marked, and shipped strictly in accordance with the requirements specified in the Purchase Order. If no specific instructions are provided, Seller shall utilize the least expensive good commercial practices to ensure protection in shipment and storage and compliance with applicable laws. All dangerous or hazardous Goods shall be packed separately from those of a non-hazardous nature. Any expense incurred by Purchaser as a result of improper preservation, packaging, packing, marking, or method of shipment shall be reimbursed by Seller. No separate or additional charge is payable by Purchaser for containers, crating, boxing, bundling, dunnage, drayage, or storage unless specifically stated in the Purchase Order.
15. Hazardous Goods. Hazardous Goods must be marked by Seller with the names of the ingredient materials displayed. Transportation and other relevant documents must include a declaration of the hazard(s) and name(s) of the material(s). Hazardous Goods must be accompanied by emergency information in the form of written instructions, labels, and markings. All information held by, or reasonably available to Seller regarding the potential hazards known or believed to exist in the transport, handling, or use of the Goods supplied shall be promptly communicated to Purchaser.
16. Price, Invoicing, and Payment. The price of the Goods, exclusive of applicable taxes shall be stated in the Purchase Order. No variation of the price nor extra charges shall be accepted by Purchaser without its advanced written approval. Seller shall prepare at time of shipment full and complete invoices for the Goods and shall deliver one (1) legible copy of invoices by mail or email as directed in the Purchase Order. Seller shall verify email address accuracy to avoid payment delays. The invoice shall include Purchaser's Purchase Order number. All invoices shall contain substantially the following assurance: “Seller hereby certifies that these goods were produced in compliance with all applicable requirements of the Fair Labor Standards Act, as amended, and of regulations and orders thereunder, and of all federal, state and local statutes, rules and regulations relating to employment and conditions of employment.” Purchaser shall pay the price of the Goods in accordance with the terms of payment listed on the Invoice, less applicable deductions, if any, which terms will be considered from the date of Purchaser's receipt of the Goods directly by Purchaser at its place of business. If there is any delay in Purchaser’s receipt of invoices, if there are errors or omissions on the invoice, or if there is a lack of supporting documentation required by the terms of the Purchase Order, then Purchaser may withhold payment until those issues are corrected without losing discount privileges. Purchaser shall have the right to set-off any amounts due hereunder against any amounts owed by Seller to Purchaser.
17. Purchaser’s Property. Materials, equipment, tools, dies, molds, copyright, design rights, or any other forms of intellectual property rights in all drawings, specifications, and data supplied by Purchaser to Seller shall at all times remain the exclusive property of Purchaser (the “Purchaser Property”). Purchaser Property shall be held by Seller in safe custody at its own risk and maintained and kept in good condition by Seller until returned to Purchaser and shall not be disposed of other than in accordance with Purchaser’s written instructions, nor shall such items be used otherwise than as authorized by Purchaser in writing. Such information can only be used for the purpose of the Contract. Any invention, discovery, technical process, or application made, conceived, or applied by Seller or its employees, agents, or subcontractors, whether solely or jointly with others, in the performance of this Contract, shall be disclosed and documented to Purchaser, and shall be the sole and exclusive property of Purchaser and considered as Confidential Information (as defined below).
18. Confidential or Proprietary Information/Property. Seller shall keep confidential and protect from disclosure all information and property obtained from Purchaser in connection with this Purchase Order and identified verbally or in writing as confidential or proprietary, or which reasonably would be considered to be confidential or proprietary, as well as all documents and work product generated by Seller under this Purchase Order (“Confidential Information”). Unless otherwise expressly authorized herein by Purchaser, Seller shall use such Confidential Information, and the features thereof, only in the performance of and for the purpose of this Purchase Order. Seller shall not, at any time during or after performance of this Purchase Order, disclose to others (except those employees or agents of Seller with a need to know) the terms of this Purchase Order or any other Confidential Information that Seller: (a) receives from Purchaser, or (b) conceives, develops or acquires in the performance of this Purchase Order. Nothing in the foregoing shall affect compliance with United States Government requirements. Upon Purchaser's request, and in any event upon the completion, termination, or cancellation of this Purchase Order, Seller shall return all such information and property to Purchaser or make such other disposition thereof as directed by Purchaser. Seller shall not sell or dispose of any scrap or any completed, partially completed, or defective proprietary property before receiving written authorization and disposition instructions from Purchaser.Seller shall flow down to its subcontractors receiving such information or property these requirements to provide to Purchaser the same rights and protection as contained in this Section.
19. Liens. Seller agrees that no liens, security interests, encumbrances or property rights of any kind (“Liens”) shall lie or attach upon or against the Goods, or any part thereof, for or on account of any work performed, provided, or service furnished by Seller pursuant to this Purchase Order. If any Lien is asserted against the Goods, or any part thereof, Purchaser shall have the right to discharge the same by filing a bond or security, or in its discretion, by paying the amount of such claim, and in such event, Purchaser shall have the right to deduct from the Purchase Order price the amount thus paid. If the Purchase Order price has been paid, Seller shall repay to Purchaser, upon demand, the amount thus paid by Purchaser for the purpose of discharging such claim, plus all administrative and legal expenses incurred by Purchaser.
20. Termination. Purchaser may at any time and for any reason terminate the Contract in whole or in part by giving Seller written notice, whereupon all work on the Contract shall be discontinued and Purchaser shall pay to Seller fair and reasonable compensation for work-in- progress at the time of termination but such compensation shall not include loss of anticipated profits or any consequential loss. In the event of a termination for convenience or change by Purchaser, no claim will be allowed for any manufacture or procurement in advance of Seller's normal lead time(s) or in excess of what is reasonably required to meet Purchaser’s delivery date(s) in the absence of Purchaser’s prior written consent. The termination of the Contract, however arising, shall be without prejudice to the rights of Purchaser accrued prior to termination. The provisions of this Contract dealing with intellectual property rights, confidentiality, and governing law shall continue to be enforceable notwithstanding termination.
21. Assignment and Subcontracting. This Contract shall not be transferred, assigned or subcontracted by Seller, in whole or in part, except with the prior written consent of Purchaser.
22. Force Majeure. Neither party shall be liable for the failure to perform any aspect of this Contract if such failure is due to a force majeure event, on condition that the force majeure event is immediately notified in writing to the other party. Force majeure shall mean any cause preventing either party from performing any or all of its obligations which arises from or is attributable to acts, events, omissions, or accidents beyond the reasonable control of the party so prevented, including acts of God, war, riot, civil commotion, flood, and storm. If either party is prevented from performance of its obligations for any period of time, the other party may terminate this Contract forthwith on service of written notice upon the party so prevented, in which case neither party shall have any liability to the other except that rights and liabilities which accrued prior to such termination shall continue to subsist.
23. Relationship of Parties. Purchaser and Seller are independent contracting parties and nothing in this Contract or Purchase Order shall make either party the agent or legal representative of the other party for any purpose whatsoever.
24. General. If any provision of the Contract is found by a Court of competent jurisdiction to be wholly or partly illegal, invalid, or unenforceable, it shall be deemed severable, and the remaining provisions of the Contract and the remainder of such provision all continue m full force and effect. Failure or delay in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver by either party of any of its rights under the Contract. Any waiver by Purchaser of any breach of, or any default under, any provision of the Contract by Seller shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of this Contract. The parties to this Contract do not intend that any term of this Contract shall be enforceable by any person that is not a party to it.
25. Governing Law and Disputes. This Contract shall be governed by the laws of the State of Kansas, U.S.A. Any dispute arising out of or related to this Contract shall be subject to binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment upon the award rendered by such arbitrators may be entered in any court having jurisdiction. The arbitration will be conducted in English language in Ellsworth County, Kansas. The award of the arbitrators will be accompanied by a statement of the reasons upon which the award is based. The parties expressly agree to waive any and all rights to a jury trial.
26. EEO and Affirmative Action Obligations. Purchaser is an equal opportunity and affirmative action employer. Seller and its subcontractors must employ, assign, and advance Seller’s employees and agents without regard to race, color, creed, religion, sex, national origin, disability, age, status as a covered veteran, or any other legally protected characteristic. Seller and its subcontractors must comply with all provisions of EO 11246 as amended, along with any applicable provisions of 41 CFR §§ 60-1.40, 60-250.4, 60-300.5(a), and 60-741.5(a) with respect to affirmative action program requirements.
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