1. Controlling Effect of Terms and Conditions
1.1 The following terms and conditions (the “Terms and Conditions”) shall apply to the provision by FRONTLINE INTERNATIONAL, INC., an Ohio corporation (the “Company”) of any and all Products (as defined below) pursuant to a written or electronic purchase order setting forth price, quantities, delivery, payment, and any other terms (each, a “Purchase Order”) issued on behalf of a purchaser (the “Purchaser”).
2.1 “Confidential Information” — includes, but is not limited to, any and all ideas, information, material, data or documents of the Company that have been furnished to the Purchaser by the Purchaser either orally, in writing, by inspection or by means of computer, or other electronic, magnetic, mechanical or visual media and that relate to (a) any proposed or actual Product or Deliverable or (b) the business, assets, financial condition, operations, trade secrets, know-how or prospects of the Purchaser. “Confidential Information” also includes any analyses, compilations, studies, summaries, extracts or other documents or records (regardless of the format in which maintained) prepared by the Company which contain or otherwise reflect or are generated from the foregoing.
2.2 “Deliverables” — includes, but is not limited to, all reports, spreadsheets, working papers, processes, formulas, recipes, techniques, innovations, discoveries, ideas, names, concepts, developments, writings, inventions, technology improvements, trade secrets, trade names, trademarks, service marks, designs and know-how related thereto and all intellectual property and other proprietary rights, whether or not patentable, copyrightable or otherwise subject to intellectual property protection, to be delivered by the Company in connection with Services.
2.3 “Goods” — means any and all tangible or intangible goods (including software and intellectual property) provided to the Purchaser by the Company.
2.4 “Products” — means any combination of Goods and/or Services.
2.5 “Services” — means any and all services provided to the Purchaser by the Company and may include Deliverables.
3.1 All Purchase Orders are subject to acceptance by the Company. The Company reserves the right to reject any Purchase Order. Possession of a price list or quote does not constitute an offer to sell. Acceptance of any Purchase Order by the Company is expressly conditioned on the provisions set forth in the Terms and Conditions and the waiver by the Purchaser of any terms and conditions contained in any order form, confirmation, or any other communication of the Purchaser, whether previously or hereafter delivered to the Company, which either add to, differ from, modify, conflict with or are otherwise inconsistent with the Terms and Conditions. The Company hereby gives notice of its objection to any additional or different terms or conditions in any such order form, confirmation or communication. Upon acceptance of the Purchase Order by the Company via a confirming email, these terms and conditions shall control the relationship between the parties unless modified in writing by the Company.
4.1 The Company assumes no responsibility for its inability to supply all or any part of the goods ordered by reason of Acts of God, war, riots, labor disputes or shortages, material shortages, breakage of machinery, molds or apparatus, court orders or decrees and any other cause beyond the control of the Company. The Company reserves the right, in its sole and absolute discretion, to allocate goods or materials in short supply to its inventory or among its customer (regular or new), or both, as it determines without any liability for failure to make delivery in accordance with any accepted order. The Purchaser agrees to accept delivery as soon as reasonably possible after the cause of such delay is removed.
5.1 All sales are made on the basis of payment within thirty (30) days from the date of invoice, without deduction for any claims, returned goods or allowances. The Purchaser shall make payment to the Company at the address set forth in Section 19.6 below. Claims arising from the invoice must be made within seven (7) business days from the date of invoice. The Company reserves the right at any time and from time to time to extend and revoke, as to the Purchaser and as to any order, such credit terms as it determines, including the right to require that payment be made in full or in part prior to the shipment of all or any part of an order. The Company reserves the right to assess a 1 ½% service charge, per month, for invoices which remain unpaid, in full or in part, for more than 30 days after receipt of goods. To the extent permitted by law, the Company may impose a non-sufficient funds fee for any check that is presented for payment that is returned for any reason. A credit card fee of three and one-half percent (3.5%) will be added to all credit card payments. The Purchaser may not return any Products without the Company’s prior authorization. All returned Products must be in resalable condition, and the Purchaser shall be charged a twenty-five percent (25%) restocking fee.
6. Shipping Terms
6.1 Unless explicit shipping instructions have been given to the Company by the Purchaser, the Company shall use commercially reasonable judgment shipping the Products to the Purchaser. Title and risk of loss pass to the Purchase upon shipment. In the event pallets or any containers owned by the Company are shipped with the Products, the Company may make a reasonable deposit charge therefor, to be refunded or credited upon the return of such pallets or other container in good condition, ordinary wear and tear excepted. To the extent that the Purchaser has given the Company specific shipping instructions, the Company will comply with those instructions to the extent practicable; provided, however, that the Company assumes no liability for its failure to comply. The Company reserves the right (a) to invoice the Purchaser for, and/or to ship, the Products at any time on or after date of manufacture or the Purchaser’s initial requested shipping date as shown on the Purchase Order, whichever is the later, or (b) to resell for any prices and on any terms the Company may choose, or to scrap, the Products for which the Purchaser shall not have requested that shipment be made within six (6) months following the Purchaser’s initial requested shipping date or date of manufacture, whichever date shall last occur, and to invoice the Purchaser for the Products according to the Company’s then current price list less net proceeds from any resale or any net scrap value.
7.1 The Purchaser agrees to indemnify and save the Company harmless of and from all claims for the infringement of any patent, trademark, copyright, for unfair competition or otherwise arising out of the Purchaser’s design or specifications or the Company’s compliance with the Purchaser’s instructions; and the Purchaser agrees to promptly pay or secure any judgment and comply with any and all court orders entered in connection with such claims and to pay the Company’s expenses (including reasonable attorneys’ fees) in defending any such claim, action or proceeding. To the extent that the Purchaser has given no instructions to the Company with respect to the design or specifications of the Products, the Company’s sole liability hereunder shall be for the cost of the Products sold hereunder; provided, however, the Purchaser must notify the Company within fifteen (15) days after the commencement of any claim or suit involving the Purchaser in which any infringement is alleged, and if the Company is affected, the Purchaser shall permit the Company to completely control the defense or compromise of any allegation of infringement.
8.1 For the purpose of the Terms and Conditions, Confidential Information does not include information or data that:
(a) is already known by the Purchaser prior to receipt, provided that the Purchaser, as the case may be, within 30 days of receipt of Confidential Information advises the Company in writing if any part or all of the Confidential Information is already known to the Purchaser and supplies the Company with all relevant documents to support its position;
(b) becomes (through no improper action) generally available to the public; is independently developed by the Purchaser without the use of any Confidential Information for a party other than the Company provided, however, that the Purchaser will have the burden of establishing that whomever allegedly worked on the independent development did not have direct or indirect access to any Confidential Information; or
(c) is approved for release by written authorization from the Company.
8.2 The Purchaser agrees that all Confidential Information will be held in strict confidence, pursuant to the specific provisions set forth in this Section.
8.3 The nature and contents of Confidential Information will not be disclosed by the Purchaser to any third party or used in any manner except pursuant to the terms of the Terms and Conditions without the prior written consent of the Company.
8.4 The Purchaser agrees to take all reasonable precautions necessary to keep Confidential Information secret and confidential with no less than the degree of care it uses in safeguarding its own confidential information and other proprietary information.
8.5 If the Purchaser is required by applicable law or regulation or as a result of any judicial, administrative or governmental proceeding to disclose any Confidential Information, the Purchaser agrees to provide the Company with written notice of such requirement promptly after learning of the same and to object to the production on the grounds that the information requested is confidential. Subject to the foregoing, the Purchaser may furnish only that portion of the Confidential Information that, in the written opinion of its counsel reasonably acceptable to the Company, the Purchaser is legally required to disclose. In addition, the Purchaser agrees to exercise its best efforts to obtain confidential treatment or a protective order with respect to such Confidential Information and allow the Company, in its sole discretion, to participate in such action or proceeding.
8.6 Upon request by the Company, the Purchaser will immediately return to the Company all Confidential Information.
8.7 All inventions, modifications, discoveries, designs, developments, improvements, processes, software programs, works of authorship, documentation, formulae, data, techniques, know-how, secrets or intellectual property rights or any interest therein (collectively, “Developments”) made by the Company with respect to the Products, either alone or in conjunction with others, at any time or at any place, whether or not reduced to writing or practice during such period, which relate to the business in which the Company is engaged or any actual or demonstrably anticipated research or development of the Company, shall be and hereby are the exclusive property of the Company.
8.8 The obligations described in this Article 8 shall survive any termination or expiry of any commercial relationship between the Purchaser or Purchaser Affiliates and the Supplier.
9. Cancellation/Change Orders
9.1 The Company recognizes a Purchase Order as a legal instrument that is binding upon the Company issuing this document under the Uniform Commerce Code (UCC). Upon issuance of confirmation of the Purchase Order signifying the Purchaser’s agreement to pay for the Products, the Company may begin activities to produce the ordered Products “in good faith”. If the Company has begun activities to produce the Products, or incurred costs to do so, a Purchase Order may be canceled only with the Company’s written consent. In the event of cancellation of a Purchase Order, or any part thereof, the Purchaser shall pay: (a) the contract price of all completed items; (b) that portion of the contract price that is equal to the degree of completion of goods in progress, on the date notice of the cancellation is received; (c) the cost of any materials and/or supplies which the Company shall have purchased to perform and which cannot be readily resold or used for other or similar purposes; (d) charges for cancellation of tool orders or tool removal charges; and (e) cancellation charges of suppliers to the Company.
10. Limited Warranty
10.1 The Company makes the following limited warranties to the original Purchaser:
(a) NEW EQUIPMENT: Any new appliance which proves to be defective in material or workmanship within one (1) year from date of original shipment, will be repaired or replaced without charge F.O.B. factory, Cuyahoga Falls, Ohio, or F.O.B. authorized distributor. Specifically excluded from this warranty are motors, pumps and lamps. Any equipment or component parts damaged by a failure to follow proper installation use and maintenance procedures or by customer abuse will not be covered by this warranty.
(b) REPLACEMENT PARTS: Any appliance or component part, except lamps, which proves to be defective in material or workmanship within ninety (90) days from the date of original installation, will be repaired or replaced without charge F.O.B. factory, Cuyahoga Falls, Ohio or F.O.B. authorized distributor.
This warranty for new equipment parts covers the cost of repair or replacement of the defective part, and any labor charges for the removal and installation of any covered part specified above.
Any claim must be presented to the Company or the distributor from whom the appliance was purchased. No allowance will be granted for repairs made by anyone else without the Company’s prior written consent. If damage occurs during shipping, notify the sender at once so that a claim can be filed.
THE ABOVE LIMITED WARRANTY SETS FORTH THE SOLE REMEDY AGAINST THE COMPANY FOR ANY BREACH OF WARRANTY. THE PURCHASER AGREES THAT NO OTHER REMEDY (INCLUDING CLAIMS FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES) SHALL BE AVAILABLE. THE COMPANY WILL NOT BE LIABLE FOR ANY DAMAGES OCCASIONED OR LOSSES INCURRED AS A RESULT OF ANY FAILURE TO FOLLOW THE PROPER MAINTENANCE AND USE PROCEDURES OF ITS MANUALS, AND CANNOT BE HELD LIABLE FOR ANY INJURIES OR DEATH RESULTING FROM THE IMPROPER MAINTENANCE OR USE OF ITS EQUIPMENT.
The above warranty does not apply (a) to damage resulting from accident, alteration, misuse, or abuse; (b) to damages cause by cold oil or grease in storage tank and related hoses; (c) if the equipment serial number is removed or defaced; or (d) for lamps. THE ABOVE LIMITED WARRANTY IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING MERCHANTABILITY AND FITNESS, AND ALL OTHER WARRANTIES ARE EXCLUDED. THE COMPANY NEITHER ASSUMES NOR AUTHORIZES ANY PERSON TO ASSUME FOR IT ANY OTHER OBLIGATION OR LIABILITY.
11. Force Majeure
11.1 Neither party shall be liable for any failure or delay in performance hereunder which may be due, in whole or in part, to fire, explosion, strike or labor difficulty, accident, breakdown of machinery or equipment, curtailment in the supply of natural gas, whether pursuant to actions or proceedings already or hereafter commenced, inability to obtain power, labor or materials, including the Products, from normal sources of supply, transportation or handling accidents or delays, act of God, act, order, regulation or request of government or other public authorities, ware, riot, or civil disorder or any other cause or causes, of any nature beyond the control of the party affected. In the event of curtailment of supply of the Products due to any causes, the Company shall have the right to apportion deliveries of the Products on such basis as may appear to it to be equitable. Any accepted Purchase Order which, due to any such causes shall not have been filled by the end of the agreed-upon term, may be cancelled by either party with respect to the Products not then delivered.
12. Purchaser’s Breach
12.1 In the event of any breach of any provision of these terms and conditions by the Purchaser, the Company, at its option without prejudice to any other remedy or remedies which the Company may have against the Purchaser for such breach, may (a) without affecting in any way the obligation of either party in respect of further shipments hereunder, regard each shipment as a separate and independent sale on the terms and conditions applicable hereunder, or (b) cancel shipments and declare the obligations of the Purchaser for all shipments made due forthwith, but the Purchaser shall remain liable to the Company for all loss and damage sustained by reason of such breach. The Company’s right to require performance of the Purchaser’s obligations hereunder shall not be affected in any way by any previous waiver, forbearance or course of dealing.
13. Permits & Approvals
13.1 The Company shall be properly licensed and to the extent necessary, obtain all permits, approvals, and certificates necessary to deliver the Product described in the relevant Purchase Order.
14.1 If any tax is now or shall hereafter be imposed or increased by any federal, state or municipal taxing authority, upon the manufacture, sale, transportation or delivery of any items covered hereby, which tax or increase the Company is required to collect or pay, the price to be paid by the Purchaser hereunder shall be increased by the amount of any such tax or increase in tax.
15. Office of Foreign Asset Control (“OFAC”)
15.1 Neither the Purchaser, nor any person or entity that directly owns 10% or greater equity interest in it nor any of its officers, directors or managing members are, and shall not become a person or entity (each, a “Prohibited Person”) with whom persons or entities are restricted from doing business under the regulations of the OFAC of the Department of the Treasury (including those named on OFAC’s Specially Designated and Blocked Persons List) or under Executive Order 13224 (the “Executive Order”) signed on September 24, 2001, and entitled “Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism”), or other governmental action.
16. Foreign Corrupt Practices Act (“FCPA”)
16.1 The Purchaser will, at all times, remain in compliance with the FCPA, including its prohibition against taking actions corruptly in furtherance of any offer, payment, promise to pay, or authorization of the payment of any money, or offer, gift, promise to give or authorization of the giving of anything of value, either directly or indirectly, to government officials, candidates of political parties, or to any person, while knowing that all or some portion of the consideration given to that person will be offered, given or promised to government officials or candidates of political parties, for the purpose of:
(a) influencing any act, decision or failure to act by a government official in his or her official capacity;
(b) inducing such official to use his or her influence with a government to affect any act or decision of the government; or
(c) securing an improper advantage in order to obtain, retain or direct business; further, they will not take any actions that would result in a violation of the FCPA by the Company, and will not use any part of payments received from the Company for any purpose that would constitute a violation of the FCPA; and
(d) they are not owned or controlled by government officials or candidates of political parties to whom payments are regulated by the FCPA, or any other persons who might assert illegal influence on their behalf.
17. Entire Agreement
17.1 The Terms and Conditions and the relevant Purchase Order (including any documents or components referenced as part of the Purchase Order) constitutes (together with any change orders, addenda, revisions, amendments and supplementary agreements in effect from time to time) the entire agreement between the parties with respect to the subject matter set out herein. The Terms and Conditions supersede and replace all prior agreements between the Purchaser and the Company with respect to the same.
18. Choice of Law
18.1 The Terms and Conditions and the relevant Purchase Order shall be governed by the laws of the State of Ohio. The Purchaser consents to the jurisdiction and venue of the courts of Cuyahoga County, Ohio in connection with all suits, actions, proceedings or other disputes relating to the Terms and Conditions and the relevant Purchase Order.
19. General Provisions
19.1 The provisions of the Terms and Conditions shall (whether or not expressly stated) survive the completion of the performance of the relevant Purchase Order.
19.2 A waiver by the Company of any of its rights shall not be deemed to be a waiver of any other right nor a continuing waiver of that particular right.
19.3 The headings in the Terms and Conditions are for convenience of reference only and shall not affect the construction of the Terms and Conditions or any provision hereof.
19.4 Should any provision of the Terms and Conditions or the relevant Purchase Order be or become illegal, invalid or unenforceable, it shall be considered separate and severable from this Purchase Order and the remaining provisions shall remain in force and binding.
19.5 Whenever the singular or masculine or neuter is used in the Terms and Conditions or the relevant Purchase Order, the same shall be construed to include the plural or feminine or body corporate where the context of the Terms and Conditions or the parties hereto may so require. The words “include” or “including” as used herein shall not be construed as words of limitation.
19.6 All notices, demands or other writing to be given, made or sent by either party to the other shall be in writing and shall be deemed to have been fully given, made or sent when deposited in the U.S. Mail certified or registered and postage prepaid and addressed as follows:
Frontline International, Inc.
187 Ascot Parkway
Cuyahoga Falls, Ohio 44223
Attention: Giovanni Brienza
19.7 The Purchaser acknowledges and agrees that the time for performance shall commence upon the later of the date of issuance of the Purchase Order by the Purchaser or the date stated in the Company proposal and the time for delivery of the Product shall be as stated therein.
19.8 No right or remedy conferred upon or reserved to the Company is intended to be exclusive of any other right or remedy allowed by law or the Terms and Conditions, but each shall be cumulative and in addition to every other right or remedy given in the Terms and Conditions or now or hereafter existing at law or in equity or by statute.
19.9 The Purchaser will not assign the Terms and Conditions or the relevant Purchase Order without the express written consent of the Company.
29.10 The Terms and Conditions will enure to the benefit of the Company and its successors, heirs and assigns and will be binding on the Purchaser and its successors, heirs, and assigns.