Standard Terms and Conditions for Purchase of Goods

These Standard Terms and Conditions for the Purchase of Goods (the “Terms”) are applicable to all quotes, bids, purchase and procurement of products and goods (the “Goods”) by ACH Foam Technologies, Inc. and its affiliates (the individual entity procuring or seeking to procure the Goods, as the context requires, “ACH”), however, the price, quantity and Delivery Location (as defined below) for the Goods may be separately agreed and/or set forth in a quote or offer delivered or made to ACH or an order issued by ACH to the applicable vendor(s) selling such Goods (the “Supplier”).  The “Agreement” as used in these Terms include such agreed price, Delivery Location and quantity, together with these Terms.

1. Terms of Agreement Prevail Over Supplier’s Terms of Offer or Invoice.  The parties intend solely for the terms and conditions contained in this Agreement to apply between ACH and Supplier with respect to the purchase of Goods.  Any term or condition in any other document, website, offer or communication shall have no effect.  Any terms and conditions which seek to add to this Agreement, including any terms or conditions stated on Supplier’s offer, invoice or website shall have and be given no effect.  These Terms supersede all prior oral or written agreements, proposals, discussions, correspondence, representations, warranties and covenants.  No course of prior dealings, acceptance or acquiescence in a course of performance and no usage of the trade shall be relevant to supplement, explain or modify this Agreement.  All representations, promises, warranties or statements by an agent or employee of ACH that differ in any way from this Agreement hereof shall be given no effect or force.  No waiver or alteration of Terms shall be binding unless in writing signed by an authorized employee of the ACH. Notwithstanding the foregoing, if ACH and customer have separately negotiated and entered into by handwritten signature a separate agreement signed by both parties (“Separate Agreement”), such Separate Agreement shall control over any conflicting term or condition of this Agreement.

2. Ordering Procedure.

2.1 Purchase Orders.  By issuing an order for products or goods to Supplier (each, an “Order”), ACH makes an offer to purchase such goods pursuant to this Agreement.  ACH may revoke or amend any such Order until such time as the Order is accepted by Supplier and Supplier has commenced a material aspect of performance; provided, however Supplier and ACH each agree that ACH may correct any and all clerical errors in an Order at any time, before or after acceptance.

2.2 Acceptance and Rejection.  Each Order shall be deemed accepted by Supplier if any shipment of any Good is made under the Order or if the Order otherwise is acknowledged by Supplier.  Neither additional or different terms nor the furnishing by Supplier of additional documents shall modify the Order and this Agreement.  Any such additional or different terms are rejected by ACH, and ACH’s failure to object specifically to such additional or different terms will not be a waiver of or under this Agreement.  Supplier shall promptly notify ACH if it rejects any Order, and such rejection shall thereby revoke any offer made by ACH in connection with such Order.

3. Title and Risk of Loss; Acceptance of Products; Samples.

3.1 Shipment/Risk of Loss.  Unless otherwise provided in the applicable Order, all Products will be deemed DDP (as defined in Incoterms 2015) at the location for delivery specified in the applicable Order (the “Delivery Location”) if the Supplier is not located within the United States and “prepaid, FOB destination” to the Delivery Location if the Supplier is located within the United States.  Consequently, in such circumstances no liability for shipping, insuring, or paying duty on the products will be incurred by ACH and risk of loss shall not pass to ACH until legal title passes upon acceptance of the products by ACH at the designated final destination, provided that the products are delivered in good condition.

3.2 No Waiver by Accepting Delivery.  Notwithstanding the absence of an exception notation on a freight receipt or any other term set forth in a freight receipt, bill of lading or other shipping document that may be executed upon the receipt of freight by ACH, ACH expressly retains its right to pursue (within a reasonable time frame or such other time frame agreed upon by the parties in writing) a claim or charge-back with Supplier for shortage, damage or other defect of delivered freight or Goods that comes to ACH’s attention following the delivery of such freight and Goods. 

4. Price and Payment.

4.1 Price.  ACH shall purchase the Goods from Supplier at the prices set forth in an accepted Order, or if no prices are set forth in the Order at Supplier’s then-current list price for such Goods; provided that if Supplier reduces its regular selling price for any product before shipment, Supplier agrees to apply the lesser of the agreed price or the reduced price to all unshipped Orders (the “Prices”).  No difference between the quantities of a product or good actually ordered by ACH and those originally forecast to be ordered by ACH shall give rise to any increase in the Prices.  By written notice to ACH, Supplier may propose an increase in prices for products not covered by an accepted Order, but ACH need not accept any such proposed price increase. 

4.2 No Shipping Charges, Insurance; Taxes or Other Amounts.  Unless expressly set forth in the applicable Order, all Prices are inclusive of, and Supplier is solely responsible for, and shall pay all transportation costs and insurance therefore, plus all taxes, levies, imposts, duties, deductions, charges, fees, or withholdings imposed, levied, withheld or assessed by any governmental authority, with respect to, or measured by, the manufacture, sale, shipment, use or Price of the Goods (including interest and penalties thereon).  Any and all taxes, fees, imposts, or stamps, required by state, federal, local governments, or any such governmental authority in the selling, transferring, or transmitting of products to ACH shall be paid and assumed by Supplier.  If it is ever determined that any tax included in the price paid by ACH was not required to be paid, Supplier agrees to refund promptly such amount to ACH.  Supplier will release, defend, indemnify, and hold ACH harmless from and against any fines, penalties, costs (including attorneys’ fees and court costs), losses, damages, or liabilities arising from any breach of this section by Supplier.  EXCEPT TO THE EXTENT APPLICABLE LAW REQUIRES ADDITIONAL LIABILITY, IN NO INSTANCE SHALL ACH BE LIABLE TO SUPPLIER, REGARDLESS OF THE CLAIM OR CAUSE OF ACTION, FOR ANY AMOUNTS IN EXCESS OF THE PRICES FOR GOODS ACTUALLY RECEIVED AND ACCEPTED.

4.3 Payment Terms.  ACH’s payment obligation shall arise only on the later of:  (a) its receipt of products, and (b) its receipt of a complete and correct invoice from Supplier for such products.  Unless otherwise provided in the Order, payment terms measured from such date shall be 2% discount for payment in 20 days from the date the payment obligation arises, and net payment required in 60 days.  ACH shall make all payments in U.S. dollars.  ACH is committed to paying all supplier invoices timely and accurately, within stated terms.  In the event that an invoice is not paid or is paid for an amount different than the Supplier expected, Supplier shall promptly identify and submit all reconciling items to ACH.  It is ACH’s policy to only address reconciliation items that are within twelve (12) months of shipping or invoice date, whichever is later.  Supplier forever waives, releases and renounces any and all invoice and other claims related to payment not made within this period.

4.4 No Set-off Right for Supplier.  Supplier shall not have, and acknowledges that it does not have, any right, under this Agreement, any Order, or any other agreement, or under law, to withhold, offset, recoup or debit any amounts owed (or to become due and owing) to ACH.

5. Cancellation and Returns.

5.1 Nonconformance.  Notice of defects in Goods or of any other breach by Supplier under the terms of any Order will be considered made within a reasonable time, if promptly made after being discovered by ACH or after notification is given to ACH by its customers or the users of the Goods.  The return of such Goods shall not relieve Supplier from liability for failure to ship conforming Goods under any Order or for liability with respect to warranties, express or implied.  Failure of ACH to state a particular defect upon rejection shall not preclude ACH from relying on unstated defects to justify rejection or establish breach.  Resale, repackaging, repacking, or cutting up for the purpose of resale or for use shall not be considered acceptance of the Goods so as to bar ACH’s right to reject such Goods or to revoke acceptance.

5.2 Cancellation of an Order.  In addition to, and without limiting the terms set forth in Section 5.1 herein, Supplier authorizes ACH to cancel any Order in whole or in part, reject Goods, refuse to receive Goods, or return all or part of the Goods, paying only for any part retained at the pro-rated Order rate and returning the balance at Supplier’s expense without ACH’s incurring any liability to Supplier if, in ACH’s reasonable opinion:  (a) Supplier breaches its express warranties, representations, covenants or guarantees set forth in Section 6 herein; (b) Goods received are less than or greater than the quantity, weight or volume provided for in the Order, or vary in any respect from the samples from which or specifications for which the Order was placed; (c) Supplier (i) shall have changed the factory or the subcontractor providing Goods, (ii) shall have delivered, or coordinated delivery of, the Goods to ACH at a date and/or time that differs from the specified delivery date(s) and/or time(s), (iii) fails to comply with the shipping or invoicing instructions on the Order, or (iv) fails to comply with any of the terms or conditions of the Order; (d) a claim is made that the sale or offer of sale of said Goods or the use of said Goods by ACH infringes or would infringe any alleged patent, design, trade name, trademark, copyright, trade secret, right or similar entitlement of any third party; (e) Supplier files or is the subject of a petition in bankruptcy, becomes insolvent, makes any assignment or arrangement with or for the benefit of creditors, or a receiver or person acting in a similar capacity is appointed for Supplier or its property; or (f) discontinuance of or substantial interference with ACH’s business has occurred, in whole or in part, or with respect to the particular store, facility, location or department for which the Order is given by reason of fire, flood, storm, drought, hurricane, earthquake, war, strike, labor dispute, epidemic (including pandemic flu), act of God, terrorism, embargo, civil commotion, governmental regulation, or any other cause beyond ACH’s reasonable control.  Acceptance of Goods in the circumstances set forth in subsections (a) through (f) above shall not bind or obligate ACH to accept further deliveries on the Order.  Acceptance in such circumstances shall not be construed as a waiver of ACH’s right to recover for Supplier’s non-compliance with the Agreement.

6. Warranties, Representations, Covenants and Guarantees.

6.1 Conformance with Law.  Supplier represents, warrants and agrees that all Goods and packaging therefor will comply with all applicable federal, state, and local laws, codes (including building codes), statutes ordinances, rules, regulations and requirements of the country of origin, the country of transit, or any applicable country or jurisdiction, and orders of any governmental or regulatory authority, (collectively, the “Law” or the “Laws”) and that any changes to the products hereafter made by Supplier shall comply with all applicable Laws.

6.2 Conforming Goods.  Supplier warrants, represents and agrees to ACH and to all persons purchasing or using the Goods (whether purchased from ACH, from any third party to which ACH sells the Goods, or otherwise) that:  (a) all Goods will be furnished in accordance with this Agreement and will be of the quality, form, fit, function, size and dimensions ordered under the Order; (b) all Goods will be new products of the latest design or model in conformity with all plans, specifications, performance standards, drawings, control samples and other data incorporated as part of the Order, and if the Goods have any shelf-life limitations, each such Good will have a minimum of 90% of the shelf-life remaining when ACH receives the Good; (c) all Goods will be of good quality, merchantable, free and clear of liens and encumbrances, and free from all defects in material and workmanship and shall be fit and appropriate for their intended purposes; and (d) the design, manufacture, labels, packaging, instructions, disclaimers and warnings concerning all Goods will comply with the Agreement and all Laws.

6.3 No Duty to Inspect.  Supplier agrees that ACH need not inspect the Goods or packaging before sale, and that Supplier’s warranties shall survive any inspection, installation, acceptance, and any payment for the Goods.  ACH’s approval of any design, material, or packaging shall not relieve Supplier of any obligations under this Agreement.

6.4 Additional Guarantees.  In addition to the foregoing, Supplier warrants, represents, covenants and guarantees the following:  (a) If reasonably requested by ACH or required by Law or legal precedent, the labels, packaging, instructions and warnings accompanying the Goods shall be multilingual and/or contain universally accepted pictographs and/or symbols, and the packaging shall include appropriate UPC bar coding; (b) If requested by ACH or required by Law, Supplier will supply ACH with any and all instructions, warnings, and safety sheets for the Goods; (c) The weights, measures, signs, legends, words, particulars, or descriptions, if any, stamped, printed, or otherwise attached to the Goods or containers (including U.S. required country of origin markings) or referring to the Goods delivered hereunder shall be true, accurate and complete and shall comply with all applicable Laws; (d) Every product shall conform to and comply with all applicable industry standards; (e) No Good or the use thereof shall infringe any actual or alleged patent, design, trade name, trademark, copyright, trade secret, or any right or entitlement of any third party; (f) Neither Supplier’s manufacturing plants nor any subcontracted plants use government assigned labor or forced labor or workers who are under minimum working age requirements, and in no event under the age of 14; (g) ACH shall have the right, upon reasonable notice to Supplier, to inspect Supplier’s manufacturing plants as well as subcontracted plants producing Goods being purchased by ACH; (h) Supplier and all its employees, agents and representatives are familiar with and will comply with all Laws applicable to Supplier’s business; (g) Supplier shall provide, upon request and as promptly as practicable, certifications regarding the country of origin of all Goods supplied to ACH; (j) If any regulatory or other agency issues an order requiring a party to recall, replace, repair, or make refunds with respect to all or part of any Goods (a “Recall”), Supplier shall: (i) provide prompt notice of the Recall to ACH; (ii) at its own expense, comply with all Laws affecting the Recall and reasonable instructions from ACH concerning the manner of conducting the Recall; and (iii) indemnify ACH for its costs and expenses associated with the Recall, including without limit court costs and attorneys’ fees; (k) if Supplier learns (whether through other customers or otherwise) of a quality or safety problem with respect to any of Goods, Supplier immediately shall notify ACH concerning such problem; (l) If either Supplier or ACH determines, in its reasonable discretion, that a Recall is warranted without regard to any official proceedings (a “Voluntary Recall”), Supplier shall assume all costs and expenses of such Voluntary Recall and shall indemnify ACH as set forth herein; (m) A Voluntary Recall shall be conducted in a manner reasonably agreed upon by Supplier and ACH; (n) The Goods are not being sold under a quota basis, or if so, it has been properly disclosed to ACH in writing; and (o) In the event of a natural disaster or industry-wide shortage of products (“Emergency Condition”), Supplier shall use its good faith and commercially reasonable efforts to give priority to Orders placed by ACH for products during the duration of the Emergency Condition.

7. Indemnification.

7.1 Indemnity.  Supplier shall indemnify, defend, and hold ACH (which for purposes of Sections 7 and 8 of these Terms shall include any affiliates or associates and their respective directors, officers, employees, and agents) harmless from and against any and all claims, lawsuits, judgments, losses, product recalls, civil penalties or actions, costs, liabilities, damages, and expenses (including attorneys’ and accountants’ fees and expenses) by any person, corporation, government, governmental agency, class, or any other entity whatsoever, which arise from and/or in any way relate to any:  (a) acts or omissions of Supplier, its employees and agents, contractors, subcontractors and/or any other persons for whose conduct it may be or is alleged to be legally responsible; (b) Goods provided by Supplier hereunder or their use; (c) dispute regarding Supplier’s product warranties, guarantees, covenants or representations, any breach thereof and/or the breach of any applicable Law or otherwise; (d) dispute involving promotional or advertising matter, fixtures, displays, guarantees, representations, warranties, labels, and/or instructions, verbal or otherwise, furnished by Supplier or submitted to Supplier by ACH for approval; (e) dispute regarding infringement of any patent, design, trade name, trademark, copyright, trade secret, or any other right or entitlement of any third party; (f) environmental, property and/or toxic tort claim, lawsuit, judgment, loss, civil penalty or action; and (g) claim against ACH by Supplier’s employee regarding a workers’ compensation matter.  This agreement to indemnify, defend and hold harmless ACH applies irrespective of any negligence by ACH, except to the extent finally determined in legal proceedings that the loss resulted from the sole fault or negligence of ACH.

7.2 Defense Rights and Obligations.  As long as Supplier is in compliance with its defense obligations hereunder, Supplier shall have control of the defense of any action for which indemnification is sought, subject to the following requirements:  (a) Supplier shall promptly provide ACH copies of all discovery requests as soon as they are available to Supplier; (b) Supplier shall provide ACH copies of all proposed pleadings and the opportunity to comment on them prior to their filing; (c) Supplier shall choose defense counsel that is reasonably satisfactory to ACH; (d) Supplier or its representatives shall keep ACH or its agents informed of all material information pertaining to a claim; (e) Supplier shall inform ACH of the date of any mediation, arbitration, trial or settlement conference as soon as possible after it receives such information, as well as the outcome of same; and (f) Supplier shall obtain ACH’s prior written consent before entering into any settlement or compromise of the claim that would result in the admission of any liability by ACH, any financial liability on the part of ACH, or would subject ACH to injunctive relief.  Notwithstanding the above, ACH shall have the right, but not the obligation, to participate as it deems necessary in the handling, adjustment, or defense of any claim.  If ACH reasonably determines that a defense or defenses are available to ACH that are not available to Supplier and raising such defense or defenses would create a conflict of interest for the counsel defending the claim, ACH will be entitled to retain at Supplier’s expense separate counsel for the purpose of raising these defenses.

7.3 Failure to Assume Defense.  If Supplier fails to assume its defense and indemnity obligations hereunder within 10 days after notice of any claim, ACH shall have the right, but not the obligation, to proceed with its own defense and thereafter to require Supplier to reimburse and indemnify it for any and all losses, costs and expenses (including attorneys’ and accountants’ fees and expenses) incurred by ACH in connection with such matter.

7.4 Insurance Not Limiting.  Supplier’s agreement to defend, indemnify and hold harmless ACH under the terms of this Section 7 is independent of and in addition to Supplier’s agreement to procure insurance as required in Section 8.  Supplier’s insurer’s position regarding insurance coverage for ACH, as an additional insured, does not in any way modify or limit Supplier’s agreement to defend and indemnify and hold harmless ACH as required in this Section 7.
8. Insurance.  Supplier shall procure and maintain commercial general liability insurance including products liability, completed operations and contractual liability coverage, all on an occurrence basis for property damage and bodily injury or death, each with a coverage amount consistent with large companies in the industry selling similar products.  A broad form endorsement shall be maintained in said insurance policy with ACH, its parent, affiliates and subsidiaries named as an additional insured, requiring that Supplier’s insurance be the primary policy with respect to any loss.  Supplier further agrees to forward a copy of these Terms to its insurer, and as a condition precedent to ACH’s obligations hereunder, to have delivered to ACH by Supplier’s insurer a current certificate of insurance, including renewals before the expiration of the then-current coverage, showing the coverage required by this provision as well as a copy of the broad form endorsement evidencing ACH’s status as an additional insured.  Supplier further agrees that upon notice of a claim against ACH involving any product sold to ACH, Supplier will immediately notify all insurance carriers which issued policies to Supplier naming ACH, its parent, affiliates and subsidiaries as an additional insured of said claim.  Thereafter, Supplier agrees to keep ACH fully informed of all activity, including but not limited to providing ACH with all correspondence and action taken with regard to any claim by any insurance carrier.  Additionally, Supplier and its insurer shall provide to ACH with 30 days prior written notice of non-renewal, cancellation or other change in coverage that may impair or otherwise affect ACH’s rights thereunder.

9. Intellectual Property Rights.

9.1 Supplier Content.  Supplier grants ACH and its affiliates the non-exclusive, perpetual, worldwide, royalty-free right and license to use, copy and display any product information, data, images, and/or intellectual property Supplier furnishes ACH (“Supplier Content”).  The Supplier Content shall be provided for use by ACH and its customers in various marketing activities and in connection with use of the Goods.  Supplier acknowledges that ACH is reliant upon Supplier to ensure that all Supplier Content is accurate and complete.  Supplier agrees to revise, update, and resubmit Supplier Content promptly upon discovering it is inaccurate or incomplete.  ACH agrees that it will not make material modifications or alterations to Supplier’s product specifications, images, intellectual property or product warranty information without prior written approval.

9.2 ACH Content.  Supplier acknowledges and agrees that all patents, designs, trade names, trademarks, copyrights, trade secrets, or any other proprietary rights or entitlements (“Intellectual Property”) owned or controlled by ACH and/or its affiliates shall be the sole property of ACH and/or its affiliates and that Supplier will assist ACH, or its designee, in perfecting such Intellectual Property rights by promptly responding to ACH’s requests for data, samples, specimens, drawings and/or signed documents.  Supplier shall not be entitled to use any Intellectual Property of ACH (including any logo of ACH) without ACH’s prior written consent in each instance.

9.3 No Publicity or Disclosure without Consent.  Supplier shall not publicize, disclose, or discuss the existence, content, or scope, whether in generalities or details, of this Agreement or any Order, or make any reference to ACH to any third party by any means, or through any medium (including but not limited to advertising, web site references, photographs, articles, press releases or interviews, speeches or programs) without obtaining the prior written consent of ACH.

10. Miscellaneous.

10.1 Set-Off by ACH.  All costs and expenses, including but not limited to, attorneys’ fees, incurred by ACH due to Supplier’s violations of or failure to follow any or all of the terms of an Order or this Agreement will be charged to Supplier.  Supplier expressly agrees to reimburse ACH for all such costs and expenses as promptly as practicable, and Supplier further agrees that, at ACH’s option, ACH may deduct such costs and expenses from any sum then or thereafter owing to Supplier by ACH under the SBA or under any other agreement between ACH and Supplier or any of its affiliates.

10.2 Relationship of the Parties.  The relationship between ACH and Supplier is solely that of vendor and vendee, and are independent contracting parties.  Supplier has no general authority to enter into any contract, assume any obligations or to make any warranties or representations on behalf of ACH or its affiliates.

10.3 Survival.  Any provision that, in order to give proper effect to its intent, should survive such expiration or termination, including, without limitation, Section 3.5, Section 4, Section 6 and Section 7, will survive the expiration or earlier termination of this Agreement.

10.4 Severability.  If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability does not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.  Upon a determination that any term or provision is invalid, illegal or unenforceable, the parties shall negotiate in good faith to modify this Agreement to effect the original intent of the parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

10.5 Right to Procure and Sell Competitive Goods.  This Agreement does not limit ACH’s right to procure, manufacture or sell, or preclude ACH from manufacturing or selling, to any person or entity, or entering into any agreement with any other person or entity related to the manufacture or sale of, the Goods and other goods or products that are similar to or competitive with the Goods.

10.6 Waiver.  No waiver under this Agreement is effective unless it is in writing and signed by an authorized representative of ACH.  Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated, and does not operate as a waiver on any future occasion.  None of the following constitutes a waiver or estoppel of any right, remedy, power, privilege or condition arising from this Agreement:  (a) any failure or delay in exercising any right, remedy, power or privilege or in enforcing any condition under this Agreement; or (b) any act, omission or course of dealing between the parties.

10.7 Assignment.  Supplier may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of ACH.  Any purported assignment or delegation in violation of this section is null and void.  No assignment or delegation relieves the assigning or delegating party of any of its obligations under this Agreement.

10.8 Successors and Assigns.  This Agreement is binding on and inures to the benefit of the parties and their respective permitted successors and permitted assigns.

10.9 Dispute Resolution.  Any dispute arising out of, relating to or concerning this Agreement shall, as a condition precedent to any arbitration or court proceeding, be mediated by the parties.  The parties shall mutually agree upon a mediator, and shall schedule and conduct mediation at a mutually convenient time and place.  Each party shall bear its own costs, fees and expenses associated with such mediation, except that the parties agree to split equally the costs and expenses of the mediator and the conduct of the mediation itself.  Any dispute which is not resolved by mediation and which arises out of, relates to or concerns this Agreement, at the sole option of ACH, shall be resolved by arbitration administered by the American Arbitration Association under its commercial arbitration rules (except that discovery shall be permitted in accordance with the Federal Rules of Civil Procedure), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.  All arbitration hearings shall be conducted in Denver, Colorado.  Each party will bear its own costs, fees, and expenses associated with any arbitration, except that the parties agree to split equally the costs and expenses of the arbitrator or panel and the conduct of the arbitration itself.  If ACH does not elect to submit a dispute to arbitration, the parties agree that any civil action to decide such dispute shall be brought in either the state or federal courts located in Denver, Colorado.  Notwithstanding any provision to the contrary, Supplier agrees to bring any claim or dispute against ACH (including payment disputes) within one year after the occurrence of the event giving rise to such dispute.  The laws of the State of Colorado, excluding its conflicts of law rules, shall govern the Agreement, and all disputes arising out of or relating thereto.  The parties specifically exclude the application of the United Nations Convention on Contracts for the International Sale of Goods to (a) the sale of Goods hereunder, (b) the contractual relationship created, and (c) the construction, validity, enforcement, and interpretation of the Agreement.

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