TERMS AND CONDITIONS
Acceptance-Offer to Purchase. The Purchase Order that accompanies or refers to these Terms and Conditions (the Order) constitutes an offer by Floe International to purchase the products and/or services described in the Order. The Order becomes a binding contract when Supplier accepts it by acknowledging or beginning performance of the Order. Upon acceptance by the Supplier, the Order, including these Terms and Conditions and any related attachments, constitutes the entire agreement between the parties with respect to the transactions contemplated in the Order. All conflicting, different or additional Supplier terms are expressly rejected and acceptance of this offer is expressly limited to the terms stated in this Order. No course of dealing or usage of trade or actual course of performance shall be relevant to explain or supplement any terms used herein.
Warranties. Supplier warrants that (i) the Products and/or Services will be in exact accordance with the specifications, drawings and other instructions attached to the Order or to which Floe International and Supplier subsequently agree in writing; (ii) the products do not infringe upon any third party’s intellectual property, including patents, copyrights, trademarks or trade secrets; (iii) Supplier has all necessary rights to sell or license the Products. To the extent Services are purchased from Supplier, (i) all such services shall be performed in a timely, professional and workmanlike manner, (ii) performed in accordance to specifications and descriptions of such Service; (iii)and comply with all applicable laws and regulations and standards. All equipment, materials and articles used in the performance of the Service shall be of the most suitable grade for the purpose intended.
In addition, all Products and/or Services rejected as damaged, defective or otherwise not conforming in any way to the Order (including terms and conditions) may be held or returned by Floe International to the Supplier at the Supplier’s risk and expense. Supplier shall reimburse Floe International for any and all costs incurred by Floe International resulting from non-conforming products or services within 30 days. Floe International acceptance, inspection, testing, approval and/or use of or payment for any Products or Services shall not constitute a waiver of any rights or remedies (including rights or remedies with respect to any non-conformities later discovered: and shall not relieve Supplier from any liabilities or obligations under its warranties or otherwise.
Delivery. (i)Supplier agrees that all articles shall be suitably packed in a manner to secure safe delivery, to comply with carrier requirements. (ii) Each container must be packed, marked, tagged and shipped with an outer label that includes the applicable Purchase Order number and “Ship To” Attention information, be accompanied by one copy of the shipping papers, and be shipped in accordance with all instructions appearing on the Order. (iii) A packing slip must accompany each shipment and list the following: (i) reference to purchase order number; (ii) Suppliers name and address; (iii) Floe Internationals’ name; (iv) country of origin; (v) detailed description of product in English including product name and code; (vi) accurate quantities and weight of the merchandise shipped. (iv) Time of delivery is of the essence of the Order, and if delivery is not made on or before the specified date of delivery, Floe International reserves the right, without liability, to return same at the Supplier’s expense. (vi) Floe International reserves the right to designate carriers and routes when freight charges are the responsibility of Floe International. Supplier agrees to reimburse Floe International for excess freight charges incurred as a result of failure to follow such designations by Floe International. (vii) If supplier does not meet promised delivery date, Floe International may require delivery by the fastest way and charges resulting from this transportation must be fully prepaid and absorbed by the supplier.
Pricing. The prices shown on the Order for the Products or Services are complete and no additional charges may be added without Floe’s express written consent, including by not limited to, transportation to the F.O.B point, packaging, customs, duties, taxes, storage, insurance, boxing, crating and carriage expenses which have been prearranged or provided by the supplier.
Title and Risk of Loss. Title and risk of loss to Products will pass to Floe International upon Floe’s acceptance of the Products. Floe will have 30 days after receipt of the Products or completion of the Services to accept or reject a Product and/or Service. If Floe rejects a Product and/or Service, it will notify the Supplier of such rejection and will request directions as to the disposition of the Product or re-performance of the Service. Floe reserves the right to require the Supplier to re-perform any Service that does not comply with any terms set forth herein, at no additional cost to Floe International. If suppler fails to provide instructions for such disposition of Product, or fails to re-perform the Service within 10 days after receipt of the notice from Floe International, Floe may dispose of the product in any manner it deems appropriate, and/or Supplier may be held liable for all costs incurred for the performance of the Service or defective product and/or additional cost incurred by engaging an alternative supplier.
Indemnification. Supplier agrees to indemnify, defend and hold harmless Floe from and against any and all fines, actions, suits, proceedings, claims, costs, liabilities, damages, losses, and expenses (including, but not limited to , reasonable attorneys’ fees, arising out of or related to (i) any compensation owed to any employee of Supplier or any Personnel for services performed under this Order and for any tax, levy or other amount imposed with respect to such compensation and for any claims, damages or liability for injury or death to Supplier’s Personnel incurred in the performance of their duties; (ii) breach of Supplier’s obligations under this order; (iii) the allegations that the Products or services infringe a third party’s intellectual property rights or any other rights; (iv) act or omission of Supplier or its personnel in performance of Services; or (v) any negligent, fraudulent, or willful conduct by Supplier or its personnel.
Payment terms. Unless otherwise specified in the Order, Floe International shall pay all invoices from the Supplier’s Products and Services provided pursuant to the Order within 60 days from the later of Floe’s acceptance of the Products or Service, or receipt of Supplier’s invoice. Floe International will receive a 2% discount off any invoiced amount if Floe or its designated agent pays Supplier within 10 days of the later of receipt of the applicable invoice or Floe’s acceptance of the Product or Service. Supplier will provide all invoices to Floe within the 60 days of the delivery of Product or the completion of Services, as applicable. Supplier’s invoices must include the Floe Order number or the invoices may be denied for payment. Floe reserves the right to refuse payment for any invoice issued after the 60-day period.
Taxes. Unless otherwise specified in the Order, the prices set forth include all applicable taxes, import duties, customs clearance, applicable licenses, certifications, ratings and other authorizations and approval (collectively, “Taxes”). All such Taxes shall be stated separately on the Supplier’s invoice.
Safety. Supplier shall be responsible for all safety issues related to and during the performance of any Services and Supplier’s obligations hereunder. Supplier shall ensure that its employees and the employees of its approved subcontractors are notified of and observe and abide by all safety regulations and laws including, but not limited to, those issued by Floe International.
Suppliers’ employees. All personnel supplied or engaged by the Supplier to perform Suppliers’ obligations will be deemed employees or subcontractors of Supplier and will not be considered employees, agents, or subcontractors of Floe International for any purpose, including, but not limited to, the application of any federal or state unemployment or insurance laws or workers’; compensation laws, or otherwise. Supplier hereby assumes all liabilities or obligations imposed by any one or more of such laws with respect to Suppliers’ employees and subcontractors. Supplier assumes full responsibility for the actions of all employees and subcontractors performing Suppliers obligations under the Order and for the payment of their compensation (including, if applicable, withholding of income taxes, and the payment and withholding of social security and other payroll taxes), worker’s compensation, disability benefits and the like to the extent applicable to the personnel involved. By written notice, Floe may require Supplier to immediately remove from providing a Service any employee or subcontractor of Supplier that Floe International deems objectionable for any legal reason.
Insurance. Supplier shall maintain commercial general liability, product liability, professional liability, automobile liability, property damage, and worker’s compensations and employer’s liability insurance coverage with limits of liability sufficient to cover its obligations under the Order or as Floe may reasonably specify. Upon Floe’s request, Supplier shall also furnish Floe with insurance Certificates of Liability which (i) identify Floe, its directors, officer, employees, agents, successors and assigns as additional insured: (ii) indicate that the insurer has insured, under the contractual liability section of the liability insurance policies, the specific liabilities assumed by Supplier under the Order; (iii) includes the insurer’s commitment to give Floe not less than 30 days prior written notice in the event of an adverse change in Suppliers coverage; (iv) indicate Supplier’s insurance is primary without right of contribution from any insurance carried by Floe; (v) are on occurrence form; and (vi) include a waiver of subrogation against Floe or its insurer(s). If Supplier provides Services to Floe, Supplier must provide a copy of its insurance certificate prior to beginning performance of the Service.
Hazard Communication. Supplier shall appropriately label all products that contain hazardous chemicals or materials in accordance with all applicable international, federal, state or local standards or regulations that may apply. Supplier shall provide the Material Safety Data Sheets (MSDS) specified by applicable law with each shipment regarding hazardous chemicals or materials contained in the Order.
Confidentiality. Except for information that becomes public without any wrongdoing of the receiving party or that is independently developed by the receiving party, neither party shall use for its own benefit or disclose to any third party the confidential or proprietary information of the other party without the party’s prior written consent. Any specifications, drawings, samples, or other data furnished by Floe International or created by Supplier for Floe shall be treated by Supplier as the confidential information of Floe International, shall remain Floe’s property and shall be returned to Floe upon request. If Supplier and Floe have signed a non-disclosure agreement, such agreement is incorporated by reference as if fully set forth herein.
Ownership. Supplier acknowledges that Floe International shall own all right, title and interest, including all intellectual property rights, in and to all unique changes or alterations made to a product to comply with Floe’s unique requirements or specifications or any materials developed by Supplier as part of any Services. Supplier agrees that all such materials, changes or alterations are “works made for hire” under applicable law and Supplier hereby assigns to Floe any and all intellectual property rights in such materials, alterations and changes.
Termination. Either party may terminate the Order if the other party fails to comply with its obligations under the Order and does not cure such breach within 30 days of receipt of notice regarding such breach.
Limitation of Liability. REGARDLESS OF WHETHER A CLAIM IS IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, FOR A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY (A) INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES HEREUNDER, EVEN IF SUCH PARTY IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) LIABLITY IN EXCESS OF THE TOTAL AMOUNTS PAYABLE BY FLOE FOR THE PRODUCTS OR SERVICES SPECIFIED IN THE ORDER.
Governing Law. The order and these Terms and Conditions shall be governed by and construed in accordance with the law of the state of Minnesota, without reference to conflicts of law principle. Venue for any proceeding arising from or related to the transactions contemplated in the Order shall be in the federal or state courts located in the state of Minnesota and the parties hereby consent to the exclusive personal jurisdiction of such courts. The United Nations Convention for the International Sale of Goods shall not apply to the transactions contemplated in the Order.
Assignment. No part of the Order may be assigned or subcontracted, directly or indirectly, without Floe’s prior written approval. Floe shall have the right, exercisable in Floe’s sole discretion, to immediately terminate the Order upon Supplier’s merger with another company, acquisition of Supplier by another company, or a sale of substantially all of Supplier’s assets to another company. Floe reserves the right to assign all or any part of the Order to its subsidiaries, affiliates or any successor in interest to all or any part of Floes’ operations. Any attempt by Supplier to assign any rights, duties or obligations hereunder without Floe’s prior written consent will be void.
Severability; Remedies Cumulative. If a court of competent jurisdiction finds any of the provisions contained herein to be invalid, illegal
or unenforceable in any respect, such provision shall be construed as closely as possible to the original intent of such provision, and the validity, legality or enforceability of the remaining provisions contained herein shall in no way be affected or impaired. All rights and remedies available under the Order or applicable law will be cumulative and may be exercised singularly or concurrently. No waiver of any rights of the Order or these Terms and Conditions shall be construed as a waiver of any other rights.
Force Majeure. Floe International may delay delivery or acceptance occasioned by causes beyond its control. The supplier shall hold goods or services at the direction of Floe and shall deliver them when the cause affecting the delay has been removed. Floe shall be responsible only for the suppliers direct additional cost in holding the goods or delaying performance of the order at Floe’s request. Causes beyond Company’s control shall include, but not be limited to, governmental action or failure of the government to act where such action is required, strike or other labor dispute, fire, or unusually severe weather.