Future Metals Terms & Conditions of Sale
The following Terms of Sale shall be applicable to all sales made by Future Metals except where it is otherwise expressly agreed in writing.
These Terms and Conditions of Sale and all documents referenced herein (collectively, the “Terms”) are the only terms and conditions which govern the sale of goods (“Goods”) and/or services (“Services” and together with Goods, the “Deliverables”) by Future Metals, LLC (“Seller”) to the buyer (“Buyer”) and supersede all other terms and conditions, oral or written, and all other communications between the parties suggesting additional or different terms. These Terms represent the final and complete understanding of the parties and may be amended or cancelled only by mutual written agreement. Acceptance is expressly limited to these Terms. Any proposal for additional or different terms or any attempt by Buyer to vary these Terms is hereby deemed material and is objected to and rejected. No terms of any document or form submitted by Buyer shall be effective to alter or add to these Terms. The earlier of Seller’s commencement of performance or Buyer’s receipt of any of the Deliverables shall constitute acceptance of these Terms.
Prices quoted unless otherwise indicated in the purchase order are in U.S. Dollars and based on the price at the time of quotation and are subject to change without notice. Clerical errors are subject to correction without liability.
Prices do not include any sales, use, excise, privilege, ad valorem, or other taxes, duties, tariffs or assessments now or hereafter imposed or levied (“Taxes”) by or under the authority of any foreign, federal, state, provincial, or local law, rule, or regulation (collectively, “Law”) concerning the Deliverables or the manufacture or sale thereof. If Seller pays any such Taxes, Buyer shall, upon demand, immediately reimburse Seller for such amounts.
TERMS OF PAYMENT
All payments are due within 30 days from date of invoice. Orders are subject to acceptance in writing by Seller. All payments shall be made without abatement, deduction, discount or setoff. Late payments are subject to a service charge of the lesser of 1.5% per month or the highest rate permitted under applicable Law. Buyer shall be liable for all costs and expenses related to collection of past due amounts, including, without limitation, attorneys’ fees and costs. If, in Seller’s judgment, the financial condition of Buyer does not justify continuance on the terms of payment above, Seller may require full or partial payment in advance or otherwise adjust the terms including ceasing to supply Buyer.
Delivery shall be made F.O.B shipping point at Seller’s facility and title and risk of loss passes to Buyer at such time. Delivery/performance dates are estimates only. Seller shall not be liable for any claim, loss, expense, or damage of any kind whatsoever for delays, or loss or damage in transit. Claims for loss or damage shall be made solely against the carrier. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
Buyer shall inspect the Goods upon receipt and Services upon performance, and Buyer shall immediately notify Seller in writing of any claims that the Deliverables are different than identified in Buyer’s purchase order whereupon Seller shall determine the remedy pursuant to Section 12. Failure to give such written notice upon receipt will constitute irrevocable acceptance by Buyer of all Deliverables.
CHANGES OR CANCELLATION
Changes in specifications or designs to any Deliverables, changes in delivery or performance schedules or reschedules or cancellations of orders are not permitted unless Seller has accepted same in writing, has determined the additional charge to be made, if any, and the same has been paid by the Buyer. Once ordered, deliverables that are made to order, discontinued or custom products (“Special Order Goods”) may not be cancelled by Buyer. Seller reserves the right to cancel any purchase orders or releases thereunder, or terminate any agreement relating to purchase of Seller’s Deliverables, upon 10 days’ notice to Buyer.
Goods may not be returned without prior written authorization of Seller and compliance with Seller’s return policies and procedures then in effect.
(a) Services will be provided at Seller’s then current service rates; (b) If the site is not prepared for the Services upon Seller’s arrival, Seller may charge a service fee and for any delay and/or travel time; (c) Buyer shall provide Seller with advance notice of any rules, requirements and Laws; (d) Seller may refuse, without any liability, to provide Services and to allow Seller service personnel to suspend Services or vacate any site where, in Seller’s opinion, provision of Services would pose a risk to the safety of any person. In such event, Buyer is responsible for payment of any delay and/or travel time at Seller’s regular service rates; (e) Buyer is solely liable for all damages or injuries caused or contributed to by Buyer that may occur; and (f) Buyer must provide at least 72 hours’ notice of cancellation of any Service order. If Buyer cancels with less than 72 hours’ notice, Buyer is responsible for any costs incurred by Seller caused by such cancellation.
Buyer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than $2 million per occurrence, $2 million products-completed operations aggregate and $4 million annual aggregate with insurance carriers having an AM Best rating of “A- VIII” or better. Upon Seller’s request, Buyer shall provide Seller with a certificate of insurance from Buyer’s insurer evidencing the insurance coverage specified in these Terms. Buyer shall provide Seller with 30 days’ advance written notice in the event of a cancellation or material reduction of coverage in Buyer’s insurance policy. Except where prohibited by law, Buyer shall require: (i) that Buyer’s insurance will be primary and noncontributory, (ii) that Seller be named as an Additional Insured as its interests applies per this agreement; and (iii) that Buyer and its insurer waive all rights of subrogation against Seller’s insurers and Seller.
Unless otherwise provided by Seller in its written warranty, Seller warrants that (i) Goods designed and manufactured by Seller will be free from defects in material and workmanship for a period of 12 months after shipment; and (ii) Services will be performed in a timely and competent manner in accordance with industry standards. THESE ARE SELLER’S ONLY WARRANTIES. SELLER DISCLAIMS ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. If during the warranty period, Buyer notifies Seller in writing that the Deliverables are not in conformity with the warranty and Seller agrees, after Seller’s inspection (at its option), then: (a) for Goods, Seller will repair, replace or refund the total amount received by Seller therefor, at its sole option, provided Buyer returns such Goods to Seller’s plant for inspection; and (b) for Services, Buyer’s sole remedy is for Seller, at its sole option, to re-perform the Services or credit Buyer’s account therefor. These shall be Buyer’s exclusive remedies for Seller’s liability. Any claims not made during the warranty period are deemed waived. Seller’s warranty does not attach to Deliverables or parts not manufactured by Seller. Any contract created between Seller and Buyer is subject to the specific conditions that (a) Seller is not obligated to provide insurance or indemnify Buyer, and (b) there are no flow-downs from any person or entity including the federal government that become part of the contract. Upon the occurrence of any event described in Section 14(e)(i)-(vi) without the prior written consent of Seller, this warranty shall be void. LIMITATION OF LIABILITY. SELLER SHALL NOT BE LIABLE TO BUYER OR ANY OTHER PERSON OR ENTITY FOR ANY INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES OR ANY OTHER LOSSES, DAMAGES OR EXPENSES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY AMOUNT IN EXCESS OF THE PRICE RECEIVED BY SELLER FOR THE DELIVERABLES WITH RESPECT TO WHICH SUCH LIABILITY IS CLAIMED.
Buyer shall defend, indemnify and hold Seller, its affiliates and their respective officers, directors, members, managers, representatives, agents and employees harmless from and against all claims, suits, demands, losses, liabilities, damages (including injury and death) and expenses (including reasonable attorneys’ fees) (collectively, “Losses”), arising out of or relating to: (a) Buyer’s or its agents provided specifications, design, structure, operation, material or method of making Deliverables (“Buyer’s Specifications”), including without limitation, any resulting violation of intellectual property or proprietary rights; (b) Buyer’s use, misuse or disposal of Deliverables or materials; (c) Buyer’s non-compliance with any Law; (d) breach of these Terms by Buyer; and (e) Deliverables subjected to: (i) improper installation or storage; (ii) accident, damage, abuse or misuse; (iii) abnormal operating conditions or applications; (iv) operating conditions or applications above the rated capacity of the Deliverables; (v) repairs or modifications made to all or part of the Deliverables without the prior written consent of Seller; or (vi) a use or application other than or varying in any degree from the specifications and Seller’s instructions.
Provided Buyer has made all payments due Seller, Seller shall defend any suit brought against Buyer based upon a claim that the Deliverables infringe any United States patent issued as of the date of Seller’s quotation and shall pay any damages and costs finally awarded therein against Buyer, provided that Seller is notified promptly in writing of such suit and is given full authority, information and assistance by Buyer to defend or settle the suit. Notwithstanding anything to the contrary, Seller will have no liability to the extent that the suit is based upon: (i) modifications to any item made by or on behalf of the Buyer in a manner that causes the infringement; (ii) use of any item in combination with the Deliverables that causes the infringement; (iii) the failure of the Buyer to use corrections or enhancements to the Deliverables that are made available by Seller; (iv) Buyer’s Specifications; (v) Buyer’s distribution, marketing or use for the benefit of third parties of the Deliverables; or (vi) use not authorized under these Terms. If the Deliverables or any part thereof are deemed to infringe any such patent, Seller shall, at its expense and sole option either: (a) procure for Buyer the right to continue using said Deliverables or part; (b) replace them with non-infringing Deliverables or parts; (c) modify them so they become non-infringing; or (d) remove them and refund the purchase price for them depreciated over no more than 3 years.
In no event shall Buyer have any interest in any tools, jigs, dies, patterns, etc. (collectively, “Tooling”) which is made or obtained for the production of the Deliverables. Such Tooling shall remain the property of Seller.
All non-public or proprietary information of Seller, including all IP, quotations and pricing information, is confidential, solely for the use in performing hereunder and may not be disclosed, used or copied unless authorized by Seller in writing.
All drawings, know-how, designs, specifications, inventions, devices, developments, processes, copyrights, trademarks, patents and applications therefor, and other information or intellectual property disclosed or otherwise provided to Buyer by Seller and all rights therein (collectively, “IP”) are and will remain the property of Seller. Buyer shall have no claim to, nor ownership interest in, any IP and such information, in whatever form and any copies thereof, shall be promptly returned to Seller upon written request from Seller. Buyer acknowledges that no license or rights of any sort are granted to Buyer hereunder in respect of any IP, other than the limited right to use the Deliverables purchased from Seller.
Any items provided by Seller are controlled by the United States Government and authorized for export only to the country of ultimate destination for use by the ultimate consignee or end-
user(s) herein identified. They may not be resold, transferred, or otherwise disposed of, to any other country or to any person other than the authorized ultimate consignee or end-user(s), either in their original form or after being incorporated into other items, without first obtaining approval from the United States Government or as otherwise authorized by U.S. Law and regulation.
Seller shall not be liable for any delay in or failure to perform due to any event or contingency beyond its reasonable control (an event of “Force Majeure”), including acts of God, epidemics, acts of war whether declared or undeclared, blockades, labor disputes (whether of Seller’s employees or the employees of others), raw material shortages and material increases in costs of raw materials, including those material increases in costs resulting from the imposition of tariffs. In the event of Force Majeure, the time for performance will extend for such time as reasonably necessary to enable Seller to perform. Seller may, during any period of shortage due to any of the above circumstances, allocate its available supply of Deliverables among itself and its purchasers in such manner as Seller, in its sole judgement, deems fair and equitable.
Seller shall have the right to cease work or terminate these Terms or any purchase order, in whole or in part, at any time, without liability, if: (i) Buyer breaches or defaults under these Terms or any other agreement it has with Seller; (ii) a petition under any applicable law relating to bankruptcy, insolvency, or reorganization is filed by or against Buyer; (iii) Buyer executes an assignment for benefit or creditors; (iv) a
receiver is appointed for Buyer or any substantial part of its assets; or (v) Seller shall have any reasonable ground for insecurity with respect to Buyer’s ability to perform and Buyer is unable to provide Seller with adequate assurance within 10 days after written request therefor by Seller. In all cases, Seller’s rights are cumulative, are not exclusive and in addition to all other rights and remedies it may have at law or in equity. No termination shall affect any accrued rights or obligations of either party as of the effective date of such termination.
All waivers by Seller shall be in writing. Failure of Seller at any time to require Buyer’s performance of any obligation hereunder shall not affect Seller’s right to require performance of that obligation. No delay or omission in the exercise of any right, power, or remedy hereunder shall impair such right, power, or remedy or be considered to be a waiver of any default or acquiescence therein.
Any dispute arising out of or related to these Terms will be governed by and construed in accordance with the laws of the State of Illinois without regard to any rules on conflicts of laws and exclusively litigated in either (i) a state or federal court located in Cook County, Illinois, or (ii) a state or federal court located in the state of Seller’s principal place of business, at Seller’s sole discretion.
The unenforceability or invalidity of any clause in these Terms shall not have an impact on the enforceability or validity any other clause in these Terms. Any unenforceable or invalid clause shall be regarded as removed from these Terms to the extent of its unenforceability and invalidity.
Buyer shall not assign any of its rights or obligations under these Terms or any purchase order without Seller’s prior written consent. Buyer shall comply with all applicable laws. There are no third-party beneficiaries. Provisions which by their nature should survive will remain in force after any termination or expiration of any sale of Deliverables. The section headings are included solely for the convenience of the parties.
Future Metals Terms & Conditions of Purchase
- Entire Agreement Acceptance. This Purchase Order, including these Conditions of Purchase (collectively “Order”) is an offer by Future Metals, LLC (“Buyer”) and supersedes all other agreements, oral or written, and all other communications between Buyer and the person or entity to whom this Order is addressed (“Seller”) suggesting additional or different terms, and represents the final and complete understanding of the parties. This Order expressly limits acceptance to these terms, and any proposal for the addition of different terms or any attempt by Seller to vary in any degree any of the terms hereof is hereby deemed material and objected to and rejected. No terms of any document or forms submitted by Seller shall be effective to alter or add to the terms and conditions contained in this Order. Unless otherwise stated herein, Seller’s acknowledgement of this Order or commencement of any work or performance of any Services hereunder shall constitute acceptance by Seller of this Order and all of its terms and conditions.
- Prices. (a) All prices are firm and include all costs and expenses; and (b) payment terms are net 45 and discounts shall be taken from the later of the date of the receipt of a complete and accurate invoice or Buyer’s acceptance of the Goods or Services. No invoices may be rendered by Seller until after the Goods have been shipped or the Services rendered. No increase in the price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Buyer.
- Favored Nations. If, during its performance hereunder, Seller sells to any other customer goods of the same or similar type and quantity purchased hereunder on more favorable terms or conditions, including price, Seller shall advise Buyer, and Buyer shall have the right, at its option, to have such more favorable terms or conditions applied to this Order and Orders thereafter.
- Delivery. Time is of the essence with respect to this Order. If the delivery of goods (“Goods”) or providing of services (“Services”) purchased hereunder is not completed at the specified time, Buyer may, in addition to any other rights or remedies it may have, terminate this Order, without liability, as to Goods not yet shipped or Services not provided and purchase substitute items or services and charge Seller for any extra costs. If, in order to comply with delivery date specified on the front hereof, Seller must ship by a more expensive way than specified herein, Seller shall pay any increased costs. If type of carrier is not specified, route by lowest cost transportation. Seller shall assume and pay for any loss or damage to the Goods from any cause whatsoever until the Goods are delivered to Buyer at the Buyer’s designated delivery location. Title passes to Buyer upon delivery of the Goods at Buyer’s designated delivery location.
- Warranties. Seller warrants and covenants that the Goods and/or Services purchased hereunder will be (a) in compliance with and meet all requirements and standards of all applicable federal, state and local laws and regulations and applicable standards (collectively, “Laws”), including, without limitation, the requirements of the Occupational Safety and Health Act of 1970, the Toxic Substances Control Act, the Federal Food, Drug and Cosmetic Act as amended, and all standards and regulations issued thereunder; (b) in full conformity with the specifications, drawings, descriptions and/or samples furnished or specified by Buyer; (c) free from defects in material, workmanship and design and that all Services are performed in a timely, competent and workmanlike manner, (d) of good merchantable quality and fit and sufficient for the purposes intended; (e) free and clear of all liens, security interests or other encumbrances; and (f) free of claims of infringement or misappropriation of any third party’s intellectual property and proprietary rights. Seller covenants and agrees that (i) Seller will immediately notify Buyer’s Purchasing & QA departments in the event that a nonconformity or potential non-conformity exists in any Goods or Services; (ii) for a minimum period of ten (10) years from the date of final manufacture or as stated otherwise in the Order, Seller shall maintain inspection and test records to serve as evidence of conformance with specified requirements and the Order. Such records shall be legible and traceable to the Goods involved; (iii) Seller shall comply with all applicable Laws including, without limitation, applicable requirements of Section 6, 7 and 12 of the Fair Labor Standards Act as amended, and regulations and orders of the U.S. Department of Labor issued under Section 14 thereof, and with the Equal Opportunity clause of Section 202 of Title VII of the Civil Rights Act of 1964 and Executive Order 11246 dated September 24, 1965, including all implementing rules and regulations; and (iv) all flow-downs through Buyer shall be flowed down to Seller and shall become part of this Order. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Buyer’s discovery of the noncompliance of the Goods or Services with the foregoing warranties. All warranties and the provisions of this Order shall survive any inspection, testing, delivery, acceptance or payment or failure to inspect, test or discover any defect or other nonconformance shall relieve Seller of any of its obligations under the Order or impair any rights or remedies of Buyer. NO ATTEMPT BY SELLER TO DISCLAIM, EXCLUDE, LIMIT, OR MODIFY ANY WARRANTIES OR SELLER’S LIABILITY FOR DIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES SHALL BE OF ANY FORCE OR EFFECT. With respect to Goods or Services that are resold or otherwise transferred to a third party, directly or indirectly by Buyer, such third party shall have the full benefit of all warranties and indemnities from Seller and its suppliers, whether hereunder or otherwise, and Seller agrees to execute any assignments of such warranties and indemnities to such third parties.
- Recall. In the event that Buyer determines, in Buyer’s sole discretion, that any defect, nonconformance or deficiency in any of the Goods requires a field campaign, recall or similar action (“Recall”), to repair, replace or remediate any Goods or any of Buyer’s products in which goods are incorporated, Seller shall be liable to Buyer and its customers for all costs and expenses with regard to the foregoing including, without limitation, attorneys’ fees and litigation costs.
- Inspections. All Goods and Services are subject to inspection by an authorized representative of Buyer at all times and places, including during production. No Goods or Services shall be considered accepted prior to inspection and written acceptance by Buyer. Buyer reserves the right to reject or to revoke acceptance of Goods or Services which fail to meet any requirement of this Order, notwithstanding any payment or any prior inspection or test.
- Indemnification. Seller shall indemnify, hold harmless and defend Buyer, its affiliates and their respective customers, successors and assigns, against all lawsuits, damages, losses, expenses, claims, liabilities, judgments, fines, liens, settlements or penalties, including all attorney’s fees and litigation costs, whether direct or indirect, incidental, consequential, or otherwise (collectively, “Claims and Losses”) for: (i) personal injury, property damage, or other damage, arising out of, relating to, or in connection with, the use, possession, consumption, manufacture, fabrication, or sale, of the Goods or Services, (ii) claims arising from, relating to, or in connection with, Seller’s actual or alleged negligence, act or omission or failure to comply with all the terms of this Order or any other agreement between Buyer and Seller, (iii) any Recall, (iv) Claims and Losses arising out of, or in connection with the performance of work on Buyer’s premises and in connection therewith, Seller waives any defense or claim arising by operation of any exclusive remedy provision of any state workers’ compensation laws or equivalent federal legislation, and (v) claims that the use or possession of the Goods actually or allegedly infringes or misappropriates any intellectual property or proprietary right, and (iv) Seller’s breach of this Order or any of the warranties expressed herein or any warranties implied by law. Seller shall not enter into any settlement without Buyer’s prior written consent. This indemnification is in addition to the warranty obligations of Seller.
- Intellectual Property. Seller warrants that the manufacture, sale and use of the Goods and provision of Services will not infringe any patent, copyright, trademark, trade secret or any other intellectual property or proprietary right. In addition to Buyer’s other rights and remedies, if all or any portion of the Goods or Services are held to constitute an infringement of a patent and/or their use is enjoined for any reason, at Buyer’s election, Seller shall promptly, and at its own expense, either procure for Buyer the right to continue using such Goods royalty-free or replace such Goods or Services to Buyer’s satisfaction with non-infringing Goods or Services of equal or greater quality, specifications and performance. Seller shall not enter into any settlement without Buyer’s prior written consent.
- Insurance. Seller shall maintain no less than the following insurance coverages (i) Workers’ Compensation with Statutory Limits for the state(s) in which this Purchase Order is to be performed (Seller may not “opt out” of carrying or “non-subscribe” to workers’ compensation insurance coverage) and Employer’s Liability insurance with limits of not less than $1 million each accident / $1 million disease – each employee / $1 million disease – policy limit; (ii) Comprehensive or Commercial General Liability (including Premises / Operations, Products / Completed Operations, Personal Injury, Independent Contractors, Blanket Contractual Liability and a cross liability or severability clause with limits of not less than $3 million combined single limit per occurrence and annual aggregate) (“CCGL Coverage”); (iii) Automobile Liability insurance covering all owned, non-owned and hired vehicles with limits of not less than $3 million combined single limit per accident; and, (iv) such other liability insurance as may be required by Buyer or the Purchase Order. Any excess or umbrella liability coverage shall follow form or otherwise be at least as broad as the required underlying primary coverages. Coverages shall be purchased from companies possessing a current policy holders rating of “A-” (Excellent) or better and a financial category no lower than “IX” from A.M. Best. The insurance shall be primary to and non-contributory with any self-insurance or policies carried by Buyer. Seller shall name Buyer as additional insured on the required CCGL Coverage using an ISO Additional Insured – Designated Person or Organization endorsement form CG 20 26 07 04, or the equivalent, Automobile Liability and Umbrella Liability policies. Seller and its insurer(s) shall grant waivers of subrogation on behalf of Buyer. Seller shall furnish to Buyer (A) certificates of insurance evidencing the required coverages prior hereto, upon request and at or before policy renewal or replacement; (2) copies of the additional insured, primary and non-contributory, waiver of subrogation endorsements; (3) other documentation as may be required by Buyer to demonstrate the insurance coverages required herein; and (4) 30 days’ prior written notice of termination or material reduction in the amount or scope of the required coverages. Seller’s purchase of insurance coverage and the furnishing of certificates of insurance shall not release Seller of its obligations or liability under this Purchase Order. In the event of Seller’s breach of this provision, Buyer shall have the right to cancel the undelivered portion of any Goods and shall not be required to make further payments except for conforming Goods delivered prior to cancellation.
- Tooling. Any tooling, tools, jigs, dies, patterns, etc. (collectively, “Tooling”) provided by or paid for by Buyer shall be and remain the sole property of Buyer. Seller shall be responsible for maintenance of the Tooling while in its possession and shall return Tooling to Buyer immediately upon demand. Seller waives any lien rights or other rights to retain Tooling and acknowledges that its obligation to return Tooling upon demand is unconditional.
- Changes. Buyer shall have the right at any time to make changes in drawings, specifications, materials, packaging, time and place of delivery, and method of transportation. If any such changes cause an increase or decrease in the cost or the time required for the performance, an equitable adjustment shall be made therein, and this Order shall be modified in writing accordingly. Seller agrees to accept any such changes subject to this section. Seller shall notify the organization of changes in product and/or process, changes of suppliers, changes of manufacturing facility location and, where required, obtain organization approval.
- Set-Off. Without prejudice to any other right or remedy it may have, Buyer has the right to set off against any amounts due Seller hereunder any amounts owed to Buyer by Seller arising from any other transaction.
- Force Majeure. Buyer shall not be liable for failure to take delivery of Goods or to allow performance of the Services if such failure or inability is due to causes beyond Buyer’s reasonable control.
- Termination for Cause.
- Buyer may terminate this Order without liability, in whole or in part, at any time, if (i) Seller fails to deliver the Goods or to perform the Services covered hereby at the time specified on the front hereof or any extension thereof authorized by Buyer in writing, (ii) a petition initiating a proceeding under any applicable law relating to bankruptcy, insolvency, or reorganization is filed by or against Seller, (iii) Seller executes an assignment for benefit of creditors, (iv) a receiver is appointed for Seller or any substantial part of its assets, or (v) Buyer shall have any reasonable ground for insecurity with respect to Seller’s ability to perform and Seller is unable to provide Buyer with adequate assurance of its ability to perform within ten days after written request therefore by Buyer.
- Buyer’s right to terminate this Order is not an exclusive remedy. Buyer shall be entitled to all other rights and remedies it may have either at law or in equity. No termination of this Order shall affect any accrued rights or obligations of either party as of the effective date of such termination.
- Termination for Buyer’s Convenience. Buyer may terminate this Order, in whole or part, at its convenience at any time by written notice to Seller. In such event, Seller may claim only properly documented out-of-pocket costs for work already performed. For specially prepared products which are unique to Buyer’s order, any partially completed work or raw materials whose full costs are included in the cancellation charges shall be identified in writing and held by Seller for disposition in accordance with Buyer’s written instructions. At all times, Buyer’s rights and remedies are cumulative, non-exclusive and in addition to its rights and remedies at law, in equity or otherwise.
- Confidential Information. All non-public, confidential or proprietary information of the Buyer, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Buyer to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the Order is confidential, solely for the use of performing the Order and may not be disclosed or copied unless authorized by Buyer in writing. Upon Buyer’s request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) can be proven by competent evidence was known to the Seller at the time of disclosure; or (c) rightfully obtained by the Seller on a non-confidential basis from a third party.
- Audit. Buyer shall have the right to audit and inspect Seller and Seller’s suppliers to determine Seller’s and its supplier’s compliance with the Order.
- Waiver. Failure of Buyer at any time to require Seller’s performance of any obligation under this Order shall not affect Buyer’s right to require performance of that obligation. Any waiver by Buyer of any breach of any provision hereof or obligation of Seller must be in writing and shall not be construed as a waiver of any continuing or succeeding breach of such provision or obligation, and waiver or modification of this provision itself, or a waiver or modification of any right under this Order.
- Assignment. Seller shall not assign this Order or any monies due or to become due hereunder, without Buyer’s prior written consent, and any attempted assignment without Buyer’s prior written consent shall constitute a material breach of this Order.
- Applicable Law and Venue. This Order, the purchase of Goods or Services by Buyer from Seller and all other aspects of the relationship between Seller and Buyer, shall be construed and governed according to the laws of the State of Florida. Seller agrees that any litigation relating to this order, or which otherwise arises directly or indirectly out of or in connection with the purchase of Goods or Services by Buyer from Seller, or our of or in connection with any transaction of any nature between Buyer and Seller, shall only be commenced in the State of Florida; either in state court or, if jurisdiction exists, in the federal district court of Florida. Seller hereby consents to personal jurisdiction in the State of Florida.
- Notices. Any and all notices or other communications required or desired to be given in connection with this Order will be given in writing and will be deemed effective upon personal delivery, on the third day after mailing if sent by certified mail, postage prepaid, return receipt requested, or one business day after deposit if sent by a nationally recognized courier service which maintains evidence of the time, place and receipt of delivery, and in each case if addressed as set forth in the Order (or such other addresses a party may designate in writing from time to time), plus Seller shall dispatch a copy to the General Counsel, The Marmon Group LLC, 181 West Madison Street, 26th Floor, Chicago, Illinois 60602.
- Buyer Information. BUYER MAKES NO WARRANTY WITH RESPECT TO INFORMATION PROVIDED BY BUYER TO SELLER OR WITH RESPECT TO THE ACCURACY OR COMPLETENESS THEREOF. BUYER IS PROVIDING ANY INFORMATION ON AN “AS IS” BASIS. ANY IMPLIED WARRANTIES THAT MAY EXIST WITH RESPECT TO ANY INFORMATION PROVIDED BY BUYER, INCLUDING ANY WARRANTY OF MERCHANTABILITY AND WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE ARE EXCLUDED. Seller acknowledges and agrees that any sales forecasts, quantity purchase estimates or similar projections received from Buyer are not purchase commitments of Buyer, but rather represent estimates for planning purposes only. Buyer shall have no obligation to purchase or otherwise compensate Seller for any of Seller’s finished products, or unfinished raw materials, not covered by an Order issued by Buyer.
- Mill Test Reports. If required by the Order, Certification and/or mill test reports shall be forwarded immediately with shipment and delivery shall not be completed unless certification and/or reports have been received.
- Miscellaneous. Provisions which by their nature should survive will remain in force after any termination or expiration. The section headings contained herein are not part of this Order and are included solely for the convenience of the parties. This Order is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Order. If any term or provision of this Order is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Order or invalidate or render unenforceable such term or provision in any other jurisdiction.
Supplier shall also comply with and Applicable regulations regarding:
FM-POL-8-IEP-SCC Supplier Code of Conduct (Ver. 1.0)
Supplier Code of Conduct (SCC)
Future Metals LLC, a Marmon Group / Berkshire Hathaway Company, (Future Metals) is committed to maintaining the highest standards of integrity, ethics, and sustainability in our business and supply chains. In keeping with our cornerstone values of Trust and Ethics, we are responsible for the conformity of all externally provided processes, products and services, including from sources defined by the customer. Therefore, we are committed to working only with contractors, sub-contractors, vendors, (third-party) service providers and business partners (collectively, “Suppliers”) who adhere to consistent standards and agree to conduct their business in accordance with these principles.
This Supplier Code applies to all individuals and businesses that provide products or services for Future Metals and its subsidiaries, divisions, or affiliates.
As a Future Metals Supplier, you must comply with all applicable laws and regulations in the countries and jurisdictions in which you operate, the requirements set out in this Supplier Code, and your contractual obligations to us. The provisions of this Supplier Code are in addition to, and do not alter or replace, the provisions of any legal agreement or contract between the Supplier and Future Metals or any of its affiliates; including the Future
Metals Terms and Conditions of Purchase, available here: Terms & Conditions Of Purchase. Suppliers are expected to hold their supply chain, including contractors, subcontractors, vendors and third-party labor agencies, to standards equivalent to those contained in this Supplier Code.
If a breach of this Supplier Code occurs, Future Metals may, in its sole discretion, suspend related procurement, refuse or return goods from the Supplier until appropriate corrective action is taken, and/or terminate its business relationship with the Supplier in addition to any other rights or remedies available.
2. HUMAN RIGHTS & MODERN SLAVERY
Future Metals is committed to conducting business in a manner that respects and protects fundamental human rights as set out in the United Nations Universal Declaration of Human Rights. These include the right to life, liberty and security; equal rights of men and women; the right to protection under the law and against discrimination, slavery, servitude, torture or inhumane treatment; and freedom of speech, thought and religion. We take a zero-tolerance approach to modern slavery in all forms (including debt bondage, servitude, human trafficking and/or forced or child labor) occurring anywhere within our supply chain. In keeping with these commitments, our Suppliers must uphold the following labor practices.
Forced Labor, Human Trafficking and Child Labor
Suppliers must not use forced labor, including but not limited to any form of involuntary prison labor, human trafficking, forced, bonded, indentured, or slave labor. The use of child labor in working for Future Metals is also prohibited. All Suppliers must be able to certify that materials in their products have not been obtained from companies that use forced or child labor or participate in human trafficking. Future Metals expects its Suppliers to be able to confirm the steps they are taking to ensure modern slavery and labor exploitation are not taking place in their business or supply chain.
Future Metals UK Anti-Slavery and Human Trafficking Policy is available online: Anti-Slavery Policy. If a Future Metals Supplier has any reason to believe that modern slavery of any form may exist within our organization or our supply chain or may occur in the future they must notify as soon as possible the Corporate Secretary or the Corporate Compliance Hotline on (+ 1) 704 752 9679.
Hiring and Employment Practices
Suppliers are expected to support and promote diversity in the workplace and provide equal opportunity for all qualified applicants. Suppliers must prohibit employment discrimination based on protected categories, including gender, age, ethnicity, nationality, religion, disability, or marital status. Suppliers must also comply with all local laws and regulations regarding a worker’s legal right to work, including verifying work status through appropriate documentation.
Respect & No Harassment
Suppliers must ensure that the personal dignity, privacy, and rights of each individual in their workforce are respected. Suppliers must strive to create a workplace that prohibits any form of unethical treatment, threats of violence, or other forms of physical, mental or sexual harassment.
Compensation and Working Hours
Our Suppliers are required to conduct their operations in ways that promote a humane and productive work environment. Suppliers must compensate employees fairly and follow all applicable local wage, leave and hour labor laws and regulations. Where applicable, Suppliers must adhere to agreed-upon collective bargaining agreements. Suppliers shall ensure that working hours, including overtime, do not exceed applicable legal requirements and that workers are allowed appropriate leave time.
3. QUALITY STANDARDS
At Future Metals, we believe that quality is not just about what we do, it is about who we are. Future Metals is dedicated to providing the best quality products, services and delivery time which meet or exceed the demands and expectations of our customers through continual review and improvement of our quality system and customer involvement. Consistent with our quality standards, Suppliers must implement, or have implemented and maintain, a quality management system meeting the requirements set out in the latest applicable revisions of EN/AS9100 or EN/AS9120 or another third-party Quality Management System (QMS) deemed equivalent by Future Metals.
In particular, Suppliers shall ensure conformity with respect to Section 7.3 (Awareness) and Section 8.4.3 (a)(m) (Information for External Supplier) of EN/AS9100 such as, but not limited to, ensuring that they and those in their supply chain are aware of:
- Their contribution to product or service conformity;
- Their contribution to product safety; and The importance of ethical behavior.
4. HEALTH, SAFETY AND ENVIRONMENT
At Future Metals we place the highest priority on providing a safe workplace for our employees and to operating in an environmentally sustainable and responsible manner. No consideration, deadline or job is more important than maintaining compliance with all applicable health, safety and environmental laws and standards. Our Suppliers are expected to share our commitment to these core priorities.
Health & Safety
Suppliers must provide a safe and healthy work environment for all employees, customers and anyone else present at their locations. Suppliers should take proactive measures that support accident prevention and minimize health risk exposure. This includes implementation of appropriate systems and procedures in order to prevent, manage, track and report occupational health and safety incidents. Suppliers should also ensure that all workers are sufficiently aware of health and safety risks and are appropriately trained in a language the worker can understand in relation to workplace hazards that they may be exposed to.
Environment & Sustainability
Suppliers are expected to conduct their business in an environmentally responsible way that supports sustainable operations, minimizes their impact on natural resources and protects the environment. Suppliers must ensure that their operations comply with all applicable environmental laws and that all related permits, approvals and registrations are current and maintained wherever in the world they are operating.
Restricted Materials/Substances List
Suppliers must maintain sufficient knowledge of input materials and components to ensure they were obtained from permissible sources, in compliance with laws and regulations. If mandated by applicable law, Suppliers are expected to implement appropriate policies and procedures regarding conflict minerals and exercise due diligence with the sourcing of these minerals. Suppliers may be required to show evidence of compliance with these requirements and additional ones such as REACH (Registration, Evaluation, Authorization and Restriction of Chemical) if required by Future Metals or its customers.
5. BUSINESS CONDUCT & INTEGRITY
At Future Metals, operating with integrity is part of who we are and our expectation of all those who work with us. Future Metals is committed to maintaining the highest standards of honest and ethical behavior in its work. We act in compliance with all applicable laws and regulations of the countries where we operate, both within the
U.S. and abroad. Acting consistently with these requirements is a condition of selection as one of our Suppliers.
Compliance with Laws
Suppliers must adhere to all applicable laws and regulations in the countries and jurisdictions in which they operate. In particular, Suppliers must never seek to gain an advantage of any kind by acting fraudulently or dishonestly, making false claims or facilitating tax evasion or by allowing anybody else to do so on their behalf. Suppliers must comply with all anti-trust and other anti-competition laws.
Suppliers must comply with all applicable international trade and export control laws and regulations. In keeping with this commitment, while working for Future Metals, Suppliers must not engage in any transactions or other business dealings, whether directly or indirectly, involving businesses or individuals located in countries that are subject of comprehensive sanctions embargoes imposed by the U.S. Government, including Cuba, Iran, North Korea, Syria and the Crimea Region of the Ukraine. Because trade and export restrictions are dynamic and subject to change, Suppliers are expected to maintain up to date compliance with the restrictions published by the relevant authorities in each country where they operate, including the U.S. Office of Foreign Asset Control and U.S. Bureau of Industry and Security. Suppliers must also maintain accurate financial books and business records in accordance with all applicable legal and regulatory requirements and accepted accounting practices.
Bribery & Corruption
Suppliers must refrain from involvement in any and all forms of corruption, extortion, embezzlement, bribery and kickbacks. It is strictly prohibited to offer, give or accept improper payments or anything else of value in order to obtain or retain business or to secure a business advantage, whether directly or indirectly via, e.g. a third-party agent or intermediary. Suppliers must ensure that gifts or other business courtesies given to customers (including Future Metals’ employees), government officials, and any other party are appropriate in nature and in compliance with all applicable anti-corruption laws.
Conflict of Interest
Suppliers must avoid all ethical, legal, financial or other personal relationships, activities and interests that could present a potential or actual conflict of interest with their work for Future Metals. If a Supplier has a relationship with any Future Metals employee that could represent a conflict of interest, this must be promptly disclosed to Future Metals.
Confidential Information & IP
Proper management of confidential information is critical to the success of both Future Metals and its Suppliers. When working with company resources, Suppliers must protect all Future Metals information, electronic data, and intellectual property with appropriate safeguards. Any transfer of confidential information must be executed in a way that secures and protects the intellectual property rights of Future Metals and its Suppliers. Suppliers may receive Future Metals confidential information only as authorized by a confidentiality or nondisclosure agreement and must comply with their obligations to not disclose the confidential information, to not use the information except as permitted by the agreement, and to protect the information from misuse or unauthorized disclosure. Suppliers may not use the Future Metals trademark, images, or other materials to which Future Metals owns the rights, unless expressly authorized to do so.
6. SUPPLY CHAIN MANAGEMENT SYSTEMS
Suppliers must procure goods and services in a responsible manner and in compliance with this Supplier Code. In particular, Suppliers are expected to communicate our requirements throughout their supply chains by adopting management systems, policies, procedures and training to ensure compliance with all applicable laws and promote the standards and expectations set forth in this Supplier Code. This includes the following aspects:
Supply Chain Transparency and Right of Access
In order to ensure and demonstrate compliance with this Supplier Code, transparency is paramount. Suppliers shall keep records of all relevant documentation in relation to work undertaken for Future Metals which may be reviewed to verify compliance with this Supplier Code upon reasonable request. Suppliers should ensure right of access by Future Metals employees, customers, auditors and regulatory authorities to the applicable areas of facilities and documents, at any level of the supply chain. If applicable and as required by the business, Future Metals may conduct onsite audits and inspections of operations and facilities, review and approve corrective actions plans, verify implementation of corrective action or take other action deemed reasonably necessary in the circumstances.
Suppliers must conduct their business in a secure manner, including implementing reasonable measures for minimizing Future Metals’ exposure to security threats such as crime and information technology breach. When visiting or working at Future Metals locations, Suppliers must abide by Future Metals’ security procedures and report any security concerns to the appropriate Future Metals personnel.
Training and Competency
Suppliers are expected to communicate and enforce the principles of this Supplier Code to their supervisors, employees, and suppliers. This includes establishing appropriate training measures to allow managers and employees to gain an appropriate level of knowledge and understanding of this Supplier Code, the applicable laws and regulations, and generally recognized standards.
Suppliers are expected to continuously improve their performance by implementing appropriate control updates and enhancements including ways to measure performance with the various requirements set out in this Supplier Code.
7. SPEAKING UP & REPORTING CONCERNS
No matter your location or role, when you are working for or on behalf of Future Metals you are expected to conduct yourself according to this Supplier Code and to speak up if you see something that goes against the requirements set out within. We encourage you to raise any concerns via the Future Metals stakeholder reporting channels at Contact Us or via email: firstname.lastname@example.org. Reports of noncompliance or any related concerns may also be made to your Future Metals business representative. All such reports will be treated confidentially and communicated on a need-to-know basis only. We have a zero-tolerance approach to retaliation against anyone for reporting a concern in good faith.
We thank you for your cooperation and commitment to knowing and following this Supplier Code at all times.
Anti-Slavery & Human Trafficking Policy Future Metals
- Modern slavery is a term used to encompass slavery, servitude, forced and compulsory labour, bonded and child labour and human trafficking. Victims are coerced, deceived and forced against their free will into providing work or services. Human trafficking is where a person arranges or facilitates the travel of another person with a view to that person being exploited. Modern slavery is a crime and a violation of fundamental human rights
- Forms of Modern slavery may include, but are not limited to, withholding of passports, being forced to work against a person’s will, depending on the employer for housing, food, and other necessities, being recruited through some form of debt arrangement, such as an advance or loan, and limitations on movement of workers.
- Future Metals UK strictly prohibits the use of modern slavery and human trafficking in our operations and supply chain. We are committed to implementing systems and controls aimed at ensuring that modern slavery is not taking place anywhere within our organisation or in any of our supply chains. We expect that our suppliers will hold themselves and their own suppliers to the same high standards.
- Policy Statement
- We expect everyone working with us or on our behalf to support and uphold the following measures to safeguard against modern slavery:
- We have a zero-tolerance approach to modern slavery in our organisation or our supply chains. The prevention, detection and reporting of modern slavery in any part of our organisation or supply chain is the responsibility of all those working for us or on our behalf. Workers must not engage in, facilitate or fail to report any activity that might lead to, or suggest, a breach of this policy.
- We are committed to engaging with our stakeholders and direct suppliers to address the risk of modern slavery in our operations and supply chain.
- As part of our contracting processes, we include a specific prohibition against the use of modern slavery and trafficked labour and a requirement to comply with our Code of Conduct, which sets out the minimum standards required to combat modern slavery and trafficking.
- Our recruitment procedures require employment and recruitment agencies and other third parties supplying workers to our organisation to comply with our Code of Conduct. Suppliers engaging workers through a third party are also required to obtain third parties’ agreement to adhere to the Code of Conduct.
- We expect everyone working with us or on our behalf to support and uphold the following measures to safeguard against modern slavery:
- Policy Application
- This policy applies to all persons working for us or on our behalf in any capacity, including employees at all levels, directors, officers, agency workers, seconded workers, volunteers, interns, agents, contractors, suppliers, external consultants, third-party representatives and business partners.
- This policy does not form part of any employee’s contract of employment and we may amend it at any time.
- Workers must ensure that they read, understand and comply with this policy.
- Responsibility for the policy
- The board of directors has approved this policy, is committed to making available sufficient resources for its implementation and has overall responsibility for ensuring compliance.
- The Corporate Secretary has primary and day-to-day responsibility for implementing this policy, monitoring its use and effectiveness, dealing with any queries about this policy, and auditing internal control systems and procedures to ensure they are effective in countering modern slavery.
- Management at all levels are responsible for ensuring those reporting to them understand and comply with this policy and are given adequate and regular training on it and the issue of modern slavery in supply chains.
- You are invited to comment on this policy and suggest ways in which it might be improved. Comments, suggestions and queries are encouraged and should be addressed to the Corporate Secretary or your local HR representative.
- Reporting Modern Slavery
- Employees must notify their manager or the Corporate Secretary or local HR representative as soon as possible if they have any reason to believe that modern slavery of any form may exist within our organisation or our supply chain, or may occur in the future or have any concerns or suspicions relating to compliance with this policy. Alternatively employees may raise concerns confidentially with the:Corporate Compliance Hotline
+ 1 704 752 9679
- If a person, other than an employee, has any reason to believe that modern slavery of any form may exist within our organisation or our supply chain, or may occur in the future or have any concerns or suspicions relating to compliance with this policy, they must notify as soon as possible the Corporate Secretary or the :Corporate Compliance Hotline
+ 1 704 752 9679
- We aim to encourage openness and will support anyone who raises genuine concerns in good faith under this policy, even if they turn out to be mistaken. We are committed to ensuring no one suffers any detrimental treatment as a result of reporting in good faith their suspicion that modern slavery of whatever form is or may be taking place in any part of our own business or in any of our supply chains. Detrimental treatment includes dismissal, disciplinary action, threats or other unfavourable treatment connected with raising a concern. If you believe that you have suffered any such treatment, you should inform the Corporate Secretary or local HR representative immediately. If the matter is not remedied, and you are an employee, you should raise it formally using our Grievance Procedure.
- Employees must notify their manager or the Corporate Secretary or local HR representative as soon as possible if they have any reason to believe that modern slavery of any form may exist within our organisation or our supply chain, or may occur in the future or have any concerns or suspicions relating to compliance with this policy. Alternatively employees may raise concerns confidentially with the:Corporate Compliance Hotline
- Breaches of this policy
- Any employee who breaches this policy will face disciplinary action, which could result in dismissal for misconduct or gross misconduct.
- We may terminate our relationship with other individuals and organisations working on our behalf if they breach this policy.