- AS9100D
- ISO 9001: 2015
- OSHA SHARP Certified
- OPSEC Compliant
- ITAR Registered
- Cage Code 9ZK79
- Monday – Friday: 8 AM – 4 PM
150 Industrial Drive
Corry, Pennsylvania 16407
Phone
(814) 664-3531
Corry, Pennsylvania 16407
(814) 664-3531
The following terms and conditions shall apply to, and are incorporated into, the transaction(s) described in the accompanying purchase order, as well as all amendments and exhibits thereto (“Order” or “PO”), issued by D&E Machining, its affiliates, and/or its subsidiaries (collectively, “D&E”), as D&E, to the entity shown as the vendor or supplier stated on said Order (the “Supplier”), as Supplier. Whenever a term defined by the Pennsylvania Uniform Commercial Code (“UCC”) is used herein, the definition contained in the UCC shall control.
This Order shall constitute no more than D&E’s offer to purchase products or goods from Supplier in accordance with these terms and conditions and any additional terms and conditions expressly set forth or incorporated by express reference on the Order (hereinafter collectively referred to as the “Terms and Conditions”), which when accepted by Supplier shall constitute a binding contract between the parties. Acceptance of this Order is expressly limited to the Terms and Conditions herein, and any terms and conditions proposed by Supplier in Supplier’s quotation, invitation, acceptance, acknowledgment, invoice, transmittal or any other document which are different from, conflict with or add to the Terms and Conditions shall be deemed to materially alter the Terms and Conditions and are hereby objected to and rejected by D&E. Acceptance of this Order, including acceptance of the Terms and Conditions herein, shall occur upon the happening of any of the following events: (a) receipt by D&E of an acknowledgment copy of this Order signed by Supplier without alteration thereto, or (b) receipt by D&E of notification from Supplier that Supplier has commenced performance hereunder or that Supplier intends to deliver or ship the products or goods to D&E. Acceptance of the goods shall not relieve Supplier from any of its obligations and warranties hereunder.
UNLESS AS OTHERWISE PROVIDED ON THE FACE OF THE ORDER OR AS OTHERWISE INDICATED HEREIN, THE PRICES APPEARING HEREIN INCLUDE ALL DUTIES, PACKAGING, CRATING AND FEDERAL, STATE AND LOCAL TAXES, IF APPLICABLE, AND ARE FIRM FOR THE DELIVERY PERIOD SHOWN. Supplier shall furnish the products and goods called for by the Order in accordance with the prices and delivery dates stated in the Order. If prices and/or delivery dates are omitted, then Supplier shall offer its lowest prices and best delivery method, both of which shall be subject to written acceptance by D&E. Supplier warrants that the prices charged for the products and goods covered by this Order shall be as low as the lowest prices charged by Supplier to any other customers purchasing similar goods in the same or smaller quantities and under like circumstances. If before all deliveries under this Order are completed, Supplier reduces its price on the products or goods covered hereunder, then D&E will receive benefit of such reduction on any undelivered portion of this Order. In the event of an imposition of any tax on the articles and materials hereby furnished which must be borne by D&E, Supplier agrees to remit to D&E any refund which Supplier might receive by reason of the unwarranted collection of such tax. Supplier warrants that the prices for products or goods purchased hereunder and all allowances made and services provided in connection therewith are not discriminatory and not violative of the Federal Trade Commission Act or the Robinson-Patman Act, or any similar applicable law or regulation.
Individual invoices must be issued for each shipment applying against the Order. Taxes (if any), freight and other charges must be shown if Supplier’s discount is not allowed on the full amount of the invoice. Discount privileges will apply from the date of receipt of products or goods hereunder or the date of receipt of the invoice, whichever date is later. Unless as otherwise agreed to in writing by D&E, invoices shall be payable within fifty (50) calendar days after receipt, inspection and acceptance of products or goods by D&E unless a later payment date is provided for in the Order or in Supplier’s invoice, in which case the later date shall control.
No change shall be undertaken except upon written authorization of D&E. D&E may at any time by written notice, make changes within the general scope of this Order in the specifications, designs, drawings, packaging, methods of shipment, quantities, place of delivery/location or delivery schedules. If any such change causes an increase or decrease in the costs of or the time required for Supplier’s performance, an equitable adjustment shall be made in the price or delivery schedule, or both, provided a written request for such an adjustment shall be made to D&E within five (5) business days from the date of Supplier’s receipt of the written notice making the change, and this Order shall be modified accordingly by written Change Order. D&E reserves the right to modify the specifications at any time. Supplier shall advise D&E of any cost changes resulting from the modified specifications, and D&E shall have the right to accept such cost changes or terminate this Order. Any cost reductions resulting from a change in specifications shall be for the benefit of D&E. Nothing contained herein shall relieve Supplier from proceeding without delay to perform this Order, as changed. If the cost of property made obsolete or excess as a result of such change is paid for by D&E, then D&E shall prescribe the manner of disposition of such property.
Title to the products or goods and risk of loss thereof shall pass to D&E upon delivery and acceptance of the products or goods by D&E, which products or goods shall be free and clear of all charges, claims and liens of any nature. Unless as otherwise agreed to in writing by D&E, title to the products or goods and all risk of loss during shipment shall remain with Supplier irrespective of F.O.B. point or other terms. Unless as otherwise agreed to in writing by D&E, Supplier shall be responsible for the payment of all duties, taxes, tariffs, broker fees, insurance and other costs associated with delivery of the products or goods to D&E or D&E’s customers. The parties acknowledge that, even if it is deemed that title may pass at point of origin, the products or goods are subject to subsequent inspection and acceptance by D&E and/or its customer at destination.
TIME IS OF THE ESSENCE WITH RESPECT TO DELIVERY OF PRODUCTS OR GOODS LISTED IN THE ORDER. Supplier must immediately advise D&E if any product or good cannot be shipped as ordered by the stated date. Shipments or performance not made on the date or dates specified in the Order may be cancelled or rejected by D&E. At D&E’s option, in the event of shipment of less than all products or goods ordered, D&E may either accept shipment and pay only for the products or goods received, pro rata based on the unit price of the product or good ordered, or reject the entire shipment. D&E reserves the right to cancel the Order or any portion thereof if shipment is not made when and as specified and charge Supplier for any loss sustained as a result of such cancellation, including, but not limited to, shipping charges. Supplier shall indemnify D&E for any losses or damages suffered by D&E as a result of such late delivery. Further, D&E may reject the late delivery without cancellation of the Order as to other subsequent required shipments. Each shipment required under the Order is to be considered separately, and D&E’s right to reject a late delivery shall not be affected by acceptance of other late deliveries by Supplier. All such cancelled shipments shall be returned to Supplier at Supplier’s expense. Acceptance by D&E of a late delivery of either the whole or part of the products or goods under the Order shall not constitute a waiver of D&E’s claim for any damages resulting from the late delivery. Products shipped prior to the date specified, at D&E’s option, may be subject to anticipation and warehouse charges, payable by Supplier, or may be returned to Supplier, at Supplier’s expense, to be held until proper shipping date. D&E may cancel any portion of the Order which remains unfilled after the beginning of any bankruptcy proceedings by or against Supplier or after the appointment of an assignee for the benefit of Supplier’s creditors or of a receiver. Shipment shall be made in accordance with the specific instructions from D&E set forth in the Order or as per oral or written instructions provided by D&E. In the absence of specific shipping instructions, Supplier will request such instructions from D&E. If instructions are not provided upon request, then shipment shall be routed via the most economical mode of commercially reasonable transportation available. Products and goods will be classified so that the lowest commodity rate may be obtained. Unless as otherwise agreed to in writing by D&E, the prices set forth in the Order include all charges for packing, crating and storage, and Supplier is obligated to suitably pack, mark and ship all products and goods to prevent damage and to conform to the requirements of common carriers. If Supplier is responsible for transportation and delivery, then D&E shall have the right to return all freight damaged merchandise to Supplier and to receive full credit therefore.
D&E reserves the right to inspect Supplier’s production and warehouse facilities and all articles and materials supplied by Supplier, and to reject any articles or materials not in accordance with D&E’s specifications or the warranties set forth herein, or shipped contrary to shipping instructions, and to return same at Supplier’s risk and expense, with all handling and incoming and outgoing transportation charges for Supplier’s account. Such inspection may include any measurement, testing or examination which leaves possible the return of the products or goods to Supplier in substantially the condition in which they were delivered to D&E. Unless otherwise specified, D&E’s count and/or weight will be accepted as final. D&E may reject or revoke its acceptance of any products or goods which do not strictly conform with Supplier’s obligations under the Terms and Conditions, and in such event, D&E shall be entitled to exercise all or any of the remedies set forth herein or available under the UCC. Moreover, D&E reserves the right to reject any products or goods that it deems non-conforming, defective, stale, unsafe, unfit or in any other way unsuitable for its purposes. D&E’s inspection, discovery of any breach of warranty, failure to make an inspection or failure to discover any breach of warranty shall not constitute a waiver of any of D&E’s rights or remedies whatsoever. Articles or materials returned are not to be replaced except on written instructions from D&E; provided, however, D&E reserves the right to request (and therefore to require) replacement of rejected products or goods as well as payment of damages, at Supplier’s expense. Failure to give notice of defects to Supplier shall not constitute a waiver of breach of warranty or of any other condition.
The products or goods which are the subject of the Order have been or will be procured, manufactured and/or sold in strict compliance with all applicable federal, state and local laws, rules, regulations and orders. As such, in its performance of the Order, Supplier shall comply with all applicable federal, state and local laws, rules, codes and regulations, including, without limitation, all applicable United States import/export laws and regulations and any requirements for packaging, labeling, crating and registering the products or goods for transportation. SUPPLIER AGREES TO INDEMNIFY AND HOLD HARMLESS D&E, ITS CUSTOMERS AND AGENTS, FOR ANY LOSS, DAMAGE, EXPENSE OR AWARD (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’FEES) INCURRED AS A RESULT OF SUPPLIER’S NON-COMPLIANCE WITH THIS SECTION. Moreover, Supplier certifies to D&E that the materials purchased by D&E were produced in compliance with all applicable requirements of the Fair Labor Standards Act of 1938, as amended, and all rules, regulations and orders thereunder, and any successor provisions thereto. The Federal Employment Opportunity clause prescribed by Executive Order No. 11246 of September 24, 1965, as amended, is incorporated herein, unless this transaction is exempt under applicable Regulations.
(a) Supplier expressly represents and warrants that all products and goods purchased and delivered hereunder: (i) shall strictly conform in all respects with D&E’s descriptions and specifications incorporated herein (and as amended from time to time); (ii) shall strictly conform in all respects to any samples, drawings, specifications or other written documents presented to D&E in connection with the sale of such products or goods to D&E; (iii) shall be merchantable, of new and best material and fit for the purpose for which such products or goods are intended; (iv) shall be free from all defects, including latent defects, in workmanship and material and design; and (v) shall strictly comply, at the time of delivery, with the U.S. Occupational Safety and Health Act of 1970, as amended, all rules, regulations and orders thereunder, and any successor provisions thereto.(b) Supplier represents and warrants that: (i) Supplier owns all rights, title and interests in the products and goods and has the legal authority to sell, license or otherwise transfer the right to use or sell such items to D&E; (ii) the products and goods, and the production and sale thereof, and all warranties, guarantees, representations by Supplier made or authorized to be made in connection therewith are in all respects in compliance with all applicable international (including applicable import and export regulations), federal, state, local laws, statutes, rules, and regulations; (iii) the products and goods are fit for the use intended; (iv) neither the products and goods, nor their sale or use will infringe any United States or foreign letters patents, trademarks, copyrights, trade secrets, or similar intellectual property rights of any third party; and (v) the products and goods are not sourced from or through the “grey market” or distribution channels which are unofficial, unauthorized, or unintended by the original manufacturer.(c) Supplier warrants that none of the items furnished under the Order are surplus, used, remanufactured or recondition or of such age or so deteriorated as to impair the usefulness or safety thereof, unless as otherwise specified on the face of the Order.(d) Supplier further warrants, for a period of one (1) year from date of acceptance, that all articles and materials furnished pursuant to this Order will function satisfactorily and will be fit for their intended use, if handled and maintained in accordance with normal industry operating procedures and Supplier’s instructions, if any.(e) All provisions and remedies of the Uniform Commercial Code relating to both implied and expressed warranties are herewith referred to and made a part of this Order. Supplier may not negate, exclude, limit or modify and warranty otherwise available to D&E. Any attempts to do so are ineffective and shall not in any way bind D&E. If applicable, Supplier must provide Safety Data Sheets (SDS) for products as required by law.(f) In addition to the foregoing express warranties, the products and goods purchased hereunder shall be subject to all warranties arising by operation of law. All of these warranties shall survive inspection, delivery, acceptance and payment, shall run to D&E, its officers, agents, employees, successors, assigns, customers and users of the products and goods and shall not be deemed to be exclusive. D&E reserves the right to require Supplier to replace any articles and materials not supplied in accordance with these warranties, free of cost to D&E.
D&E shall have the right to terminate the Order for convenience, in whole or in part, at any time, upon delivery of written notice thereof to Supplier. Upon receipt of such notice, Supplier shall immediately stop its performance and cancel all of its cancellable commitments pertaining to the terminated work and do only such work as is necessary to preserve and protect then existing work in progress. In the event of such termination, D&E’s sole liability shall be limited to payment for (a) the Order price for products or goods previously completed and delivered in accordance with the Order and not previously paid for, plus (b) Supplier’s costs incurred prior to the date of termination for work in progress pertaining to the Order and for all inventory acquired or ordered in good faith for the purpose of fulfilling the Order Which Supplier is unable to cancel or return, plus (c) Supplier’s reasonable direct costs of cancelling the aforementioned cancellable commitments and preserving and protecting the work in progress, plus (d) a reasonable profit on amounts paid under items (b) and (c). With D&E’s written consent, Supplier may sell or retain at an agreed price any work in progress or inventory, the payment for which by D&E is provided for in item (b) above, and Supplier shall credit D&E the amount so agreed or received. Any such work in progress or inventory not so retained or sold shall be transferred and delivered by Supplier in accordance with D&E’s instructions. Appropriate adjustment will be made for delivery costs or savings incurred by Supplier. In no event shall D&E be liable to Supplier hereunder for loss of any anticipated profits on any portion of Supplier’s terminated work or for any indirect or overhead expenses of Supplier not directly attributable to work actually performed or material or equipment actually ordered with respect to the Order as of the date of Supplier’s receipt of notice of termination hereunder, including without limitation, unabsorbed fabrication shop overhead. Supplier’s cancellation charges shall be subject to D&E’s audit.
(a) D&E may, by written notice to Supplier, and in addition to any other rights or remedies it may have under Paragraph 12 herein, terminate and/or cancel the Order, or any part of it, upon the occurrence of any of the following events (“Events of Default”): (i) Supplier fails fully to perform any of its obligations under the Terms and Conditions, including without limitation, the timeliness of delivery, the conformity of products or goods delivered or conformity with any express or implied warranty hereunder; (ii) the commencement of an involuntary case or the filing of a petition against Supplier (a) seeking reorganization, arrangement, adjustment or composition of or in respect of Supplier under the Federal Bankruptcy Code as now or hereafter constituted, or under any other applicable Federal or state bankruptcy, insolvency, reorganization or other similar law, (b) seeking the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of Supplier for any part of its property, or (c) seeking the winding up or liquidation of its affairs, and such involuntary case or petition is not dismissed within thirty (30) calendar days after the filing thereof; (iii) the commencement by Supplier of a voluntary case or the institution by Supplier of proceedings to be adjudicated as bankrupt or insolvent, or the consent by it to the institution of bankruptcy or insolvency proceedings against it, under the Federal Bankruptcy Code as now or hereafter constituted, or any other applicable Federal or state bankruptcy or insolvency or other similar law; (iv) the consent by Supplier to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of Supplier for any substantial part of its property; (v) the making by Supplier of any assignment for the benefit of creditors; (vi) the admission by Supplier in writing of its inability to pay its debts generally as they become due or the failure of Supplier to generally pay its debts as such become due; (vii) the talking of any corporate action by Supplier or its shareholder or Board of Directors or any committee thereof in furtherance of any of the foregoing; or (viii) D&E in its reasonable opinion believes that Supplier’s ability to perform the Order is in danger or impaired.(b) In the event of such termination and cancellation, D&E shall have the rights and remedies set forth in these Terms and Conditions, and D&E’s sole liability to Supplier shall be for conforming products or goods completed and delivered to D&E in accordance with the Order. Any such cancellation will be without liability to D&E except for completed items delivered and accepted by D&E, payment for which can be set off against damages to D&E. Whenever D&E has the right to demand of Supplier adequate assurance of due performance, D&E shall be sole judge of the adequacy of assurance given by Supplier
(a) If an Event of Default occurs, D&E shall, in addition to the right of cancellation set forth in Paragraph 11 herein, be entitled to all remedies for a breach of contract set forth in the Uniform Commercial Code and all other remedies available at law or in equity. Additionally, D&E may, at its option: (i) refuse to accept delivery of the products or goods; (ii) refuse to accept a subsequent tender of substitute, conforming products or goods; (iii) return nonconforming or late delivered products or goods to Supplier at Supplier’s expense and, at D&E’s option, either recover all payments made therefor and expenses incident thereto, or at Supplier’s expense, receive replacement therefor; (iv) recover any advance payments from Supplier for undelivered products or goods; (v) rework the products or goods to make the products or goods conform to the warranties and charge Supplier for the expense thereof; (vi) use the products or goods for a purpose other than the purpose originally intended and charge Supplier for the amount by which the purchase price exceeds the price of products or goods normally required for such alternative purposes; (vii) have Supplier repair or replace defective products or goods at Supplier’s expense; or (viii) if defective products or goods are repaired or replaced by D&E or Supplier, charge Supplier for all costs and expenses of repairing or restoring non-defective work or products or goods disturbed as a consequence of repairing or replacing defective products or goods.(b) D&E shall be entitled to exercise any or all of the remedies specified above or each of such remedies in part, provided, however, that D&E shall not be permitted to recover more than once for any part of a performance called for by these Terms and Conditions. NONE OF THE REMEDIES AVAILABLE TO D&E HEREUNDER MAY BE LIMITED EXCEPT TO THE EXTENT AND IN THE MANNER AGREED UPON BY D&E IN A SEPARATE AGREEMENT SPECIFICALLY DESIGNATING SUCH LIMITATION AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF D&E. D&E shall be entitled to recover costs and attorney fees in the enforcement or defense of any rights hereunder. Moreover, D&E’s right to return products or goods is not affected by any assignment by Supplier of monies due or to become due hereunder. Furthermore, if the cost of purchasing such substitute goods or products exceeds the price stated in the Order, then Supplier shall pay the difference to D&E. This payment shall not prejudice any other rights D&E may have against Supplier.
(a) Supplier assumes the entire responsibility and liability for, and agrees to indemnify, defend and hold harmless D&E, its officers, agents, employees, managers, subsidiaries, affiliates, successors, assigns, customers and users of the products and goods purchased hereunder, from and against any and all losses, expenses (including without limitation, court costs, investigative costs and reasonable attorneys’ fees and other professional fees), fines, penalties, costs, damages (including consequential and incidental damages), demands, liabilities, judgments, executions, recoveries, suits and claims in connection with or arising out of any actual or alleged personal injury (including death) or damage or destruction to property (including loss of use) by whomsoever suffered, sustained or alleged to have been sustained by reason of (i) any act, error, omission or misrepresentation, whether negligent or not, of Supplier or its agents, employees, suppliers, subcontractors and consultants, provided that such injury, death, damage or destruction is not occasioned by the sole negligence of D&E or its agents, employees and subcontractors, or (ii) any defect, whether latent or patent, in any good or product of Supplier, which was sold to D&E hereunder, (iii) the breach by Supplier of any of the Terms and Conditions hereof or representations contained herein; (iv) the performance of any labor or services preformed hereunder by Supplier, its employees or subcontractors, or (v) any failure of the products or goods sold to D&E hereunder to conform with the specifications and/or to comply with any warranty of Supplier. Such indemnification obligations hereunder shall be in addition to any other remedies provided by law, and such indemnification obligations shall survive the termination or expiration of the Order.(b) In addition to the representations and warranties set forth elsewhere in these Terms and Conditions, Supplier represents and warrants that all articles or materials furnished hereunder will not infringe upon any United States or foreign patent, trademark or copyright. Supplier agrees, at its own expense, to indemnify, defend and hold harmless D&E, its officers, agents, employees, managers, subsidiaries, affiliates, successors, assigns, customers and users of the products and goods purchased hereunder, from and against any and all liability, loss, damage and expenses (including without limitation, court costs, investigative costs and reasonable attorneys’ fees and other professional fees), resulting from any actual or claimed trade secret, trademark, patent or copyright infringements or other literary or artistic rights infringement affecting the articles or materials furnished hereunder, or any claim that any of the products or goods purchased hereunder, or any part thereof, or any use thereof in the reasonable contemplation of the parties at the time of their purchase, constitutes an infringement of any patent, trademark or copyright, or any litigation based thereon, and such obligation shall survive acceptance of the products or goods and payment therefore by D&E. If the products or goods purchased hereunder or any part thereof or any use thereof in reasonable contemplation of the parties at the time of their purchase is held in such suit to constitute an infringement and use is enjoined, then Supplier shall promptly and at its own expense (i) procure for D&E the right to continue use of the products or goods purchased hereunder, or (ii) replace the same with non-infringing products or goods satisfactory to D&E, or (iii) modify such products or goods in a way satisfactory to D&E and its legal counsel so they become non-infringing.
Material/Product Supply. Seller agrees to obtain and keep in effect, with an insurance company reasonably acceptable to the Buyer, commercial general liability insurance with broad form coverage including product liability, completed operations, and blanket contractual coverage including the liabilities the Seller assumes hereunder with a per occurrence and annual aggregate limit of not less than $2,000,000, and if required by Buyer naming Buyer as an additional insured and providing a waiver of subrogation by the Insurer in favor of the Buyer. Seller shall provide Buyer with insurance certificates evidencing such insurance, which certificates shall provide that such coverages may not be materially changed or canceled without 30 days’ prior written notice to Buyer. The above liability limits can be met through the use of primary and/or excess insurance.Performance of Labor. If this purchase order includes the performance of any labor for any work at the premises of Buyer, the Seller agrees, (a) that such labor will be performed in a good and workmanlike manner in exact accordance with this purchase order or any drawings, specifications or other data forming a part hereof; (b) to procure, at its own expense and keep in full force and effect worker’s compensation insurance as required by any state in which the work is to be performed, and employers liability or stop gap employers liability insurance with limits of $1,000,000, and at the Buyers request to have listed on such workers compensation and employers liability insurance the Buyer as an alternate employer; (c) to procure and maintain automobile liability with minimum limits of $2,000,000 combined single limit (d) to procure and maintain insurance for ongoing and completed operations insurance coverage for bodily injury and property damage including resulting loss of use and blanket contractual coverage, with minimum limits of at least $2,000,000 annual per occurrence and in aggregate, and name the Buyer as an additional insured for both on-going and completed operations insurance, and provide for a waiver of subrogation in favor of Buyer by the insurer, (e) to procure and maintain personal and advertising injury insurance with minimum limits of at least $2,000,000 annually per occurrence and in aggregate (f) if requested by the Buyer additional insurance to support the obligations of the Seller that may be specific to the labor including but not limited to professional insurance or environmental liability insurance. Seller shall provide Buyer with insurance certificates evidencing such insurance, which certificates shall provide that such coverages may not be materially changed or canceled without 30 days’ prior written notice to Buyer. The above liability limits can be met through the use of primary and/or excess insurance. If any labor or service does not involve work on Buyer’s premises, then the insurance for worker’s compensation in above section (b) and auto insurance in above section (c) will not apply.Upon written request of D&E, Supplier shall promptly provide certificate(s) from its insurers indicating (i) the amount of insurance coverage; (ii) the nature of such coverage; (iii) D&E, its directors, officers, and employees, et al. as additional insureds as stated above; (iv) that the insurance provided is primary as respect to any and all claims arising out of the Order and that any similar coverage maintained by D&E will be excess and noncontributory; (iv) the expirations date(s) of each applicable policy; and (v) that such coverage may not be materially changed or cancelled without thirty (30) days prior written notice to D&E. The above liability limits can be met through the use of primary and/or excess insurance.
(a) NOTWITHSTANDING ANYTHING ELSE IN THE ORDER OR OTHERWISE, D&E MACHINING, WILL NOT BE LIABLE TO SUPPLIER WITH RESPECT TO THE SUBJECT MATTER OF THE ORDER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS IN THE AMOUNT D&E MACHINING, PAID TO SUPPLIER IN THE THREE (3) MONTHS PRECEDING THE EVENT OR CIRCUMSTANCE GIVING RISE TO SUCH LIABILITY.(b) IN NO EVENTWILL D&E MACHINING BE LIABLE TO SUPPLIER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS ARISING OUT OF, OR IN CONNECTION WITH, THE ORDER, WHETHER OR NOT D&E MACHINING WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.(c) THE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. NOTHING IN THE ORDER LIMITS EITHER PARTY’S LIABILITY FOR BODILY INJURY OF A PERSON, DEATH, OR PHYSICAL DAMAGE TO PROPERTY OR ANY LIABILITY WHICH CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
(a) Supplier acknowledges that it is, may be or will be privy to Confidential Information (as defined below). Supplier agrees it will use the Confidential Information only in furtherance of the Order and the arrangements between D&E and Supplier, and Supplier shall not transfer or otherwise disclose the Confidential Information to any third party except as provided for herein. Supplier shall: (i) give access to such Confidential Information solely to those of its employees with a need to have access thereto in furtherance of or in connection with the Order, or as required by applicable law; and (ii) take the same security precautions to protect against disclosure or unauthorized use of such Confidential Information that Supplier takes with its own confidential information but, in no event, shall Supplier apply less than a reasonable standard of care to prevent such disclosure or unauthorized use.(b) As used herein, “Confidential Information” means any and all information relating to D&E, and any of its respective subsidiaries or affiliates, that may be received by or be provided to Supplier from time to time, including, without limitation, specifications, business records or data, trade secrets, and confidential planning or policy matters, business strategies, internal policies, and procedures, matters subject to attorney-client privilege, and any financial or accounting information, the existence of this or any other agreements or communications between Supplier and D&E, and the terms of any such agreement, and all data, reports, interpretations, forecasts and records containing or otherwise reflecting information concerning any such person or entity, together with analysis, compilations, studies or other documents, whether prepared by Supplier or by D&E, which contain or otherwise reflect such information.(c) Goods and/or products made or developed to designs, drawings and/or specifications provided by D&E and/or its customer(s) shall not be supplied to anyone else without the prior written consent of D&E. Supplier shall not reveal any specifications, designs or other information supplied to it by D&E nor disclose to third parties any of the details of the Order without the prior written consent of D&E. Supplier agrees that all information contained in the drawings, blueprints, specifications and other documents submitted by D&E to Supplier hereunder shall be considered “Confidential Information” hereunder and is exclusively proprietary to D&E. All Confidential Information shall be returned to D&E upon completion, expiration or termination of the Order, as applicable.
Unless as otherwise provided in the Order or agreed to in writing by D&E, property of every description including, but not limited to, all tooling, tools, equipment and material furnished or made available to Supplier, title to which is in D&E, and any replacement thereof shall be and remain the property of D&E. Supplier shall not modify D&E’s property without the written consent of D&E. Supplier shall not use such property except for performance of work hereunder or as authorized in writing by D&E. Such property while in Supplier’s possession or control shall be kept in good condition, shall be held at Supplier’s risk, and shall be kept insured by Supplier, at its expense, in an amount equal to the replacement cost with loss payable to D&E. To the extent such property is not consumed in the performance of the Order, it shall be subject to inspection and removed by D&E and D&E shall have the right of entry for such purposes without any additional liability, whatsoever to Supplier. Supplier shall disclose the location of such property, prepare it for shipment, and ship it to D&E in as good condition as originally received by Supplier, reasonable wear and tear excepted.
If the Order has as one of its purposes, certain design, experimental, development or research work, then Supplier agrees to communicate promptly to D&E full details of any design, invention (whether or not patentable) or other intellectual property right conceived or first reduced to practice by Supplier or any of its employees in connection with the performance of the applicable Order. Upon D&E’s request, Supplier shall assign to D&E any and all right, title and interest of Supplier or its employees in each such design, invention or other intellectual property right, and perform all acts (at D&E’s expense) and execute all papers which are necessary to vest in D&E full right, title and interest therein.
A party shall not be liable to the other for delay or failure to perform any of its obligations hereunder provided such delay or failure to perform is due to fire, storm, flood, earthquake, act of God, war, insurrection, riot, court order, strike, work stoppage, governmental action, or other unanticipated event beyond the control of such party (an “event of force majeure”). In the event Supplier claims that an event of force majeure has rendered it unable to perform, and as a condition to exercising rights under this Section so that D&E may seek alternative sources of performance, Supplier must provide written notice to D&E within 24 hours of the occurrence of such event, together with a detailed description of such event and the expected duration of non-performance. If any such cause continues or is expected to continue for more than thirty (30) days, then D&E may, at its option, cancel the Order and terminate its arrangements with Supplier.
Supplier shall notify D&E in the event the products or information covered by the Order are subject to export regulations of the U.S. Government. Supplier shall comply with all laws related to exportation of the products or information to be delivered hereunder.
(a) Supplier may not assign any of its rights or delegate any of its obligations under the Order without D&E Machining prior written consent.(b) Supplier may not subcontract any of its rights or obligations under the Order without D&E Machining prior written consent. If D&E Machining consents to the use of a Subcontractor, Supplier will: (i) guarantee and will remain liable for the performance of all subcontracted obligations; (ii) indemnify D&E Machining for all damages and costs of any kind, incurred by D&E Machining or any third party and caused by the acts and omissions of the Supplier’s Subcontractors’ and (iii) make all payments to its Subcontractors. If Supplier fails to timely pay a Subcontractor for work performed, D&E Machining will have the right, but not obligation, to pay the Subcontractor and offset any amount due to Supplier by amount paid to the Subcontractor. Supplier will defend, indemnify, and hold D&E Machining harmless for all damages and costs of any kind, without limitation, incurred by D&E Machining and caused by Supplier’s failure to pay Subcontractor.
All notices, requests, demands and other communications required or permitted hereunder shall be in writing and shall be deemed to have been duly given, made and received when personally delivered against or upon actual receipt by registered or certified mail, postage and fees prepaid, return receipt requested, to the respective addresses of the parties listed on the Order. Any party may alter the address to which communications or copies are sent by giving notice of such change of address in conformity with the provisions of this Section.
In addition to all other rights and remedies hereunder, D&E may set off any amount due from Supplier to D&E, whether or not under the Order, from any amounts due to Supplier.
None of the Terms and Conditions contained in the Order may be added to, modified, superseded or otherwise altered except by a written instrument or written Change Order signed by an authorized representative of D&E and delivered by D&E to Supplier.
When accepted, the Terms and Conditions, along with the specifications and the terms on the face of the Order, will constitute the complete statement of the terms of the arrangement and contract between the parties hereto, are intended as a final expression of the terms of such contract, and will supersede all prior and contemporaneous agreements, inducements or conditions, express or implied, oral or written. No course of prior dealings between the parties and no usage of trade shall be relevant to supplement or explain any term herein. D&E’s acceptance or acquiescence in a course of performance rendered by Supplier hereunder shall not be relevant to determine the meaning of this arrangement even though D&E has knowledge of the nature of the performance and opportunity for objection.
All representations, warranties and guarantees of Supplier hereunder shall survive the delivery of the products or goods to D&E, the inspection and acceptance of the products or goods by D&E, and the payment of the purchase price thereof by D&E.
D&E’s failure to exercise any of its rights under the Order upon one occasion shall not waive D&E’s rights to enforce the same on another occasion. Any delay, lack of enforcement, or waiver by D&E of any default or other breach of the Order shall not constitute a waiver of any subsequent default or other breach, and such shall not preclude D&E from enforcing any and all of the Terms and Conditions hereunder.
In the event that any provision of the Terms and Conditions or the Order is declared invalid by any tribunal or law, the remainder of the provisions shall not be affected thereby, and each term and provision not declared invalid or unenforceable shall be valid and shall be enforced to the fullest extent permitted by law. The Order and the Terms and Conditions shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, agents, successors and permitted assigns. The Order and the Terms and Conditions and all questions relating to their validity, interpretation, performance, and enforcement shall be construed in accordance with, and shall be governed by, the substantive laws of the Commonwealth of Pennsylvania without regard to its principles of conflicts of law. The parties hereby consent to the exclusive personal jurisdiction and venue of the United States District Court for the Western District of Pennsylvania, Erie Division unless subject matter jurisdiction is not satisfied, in which case each party hereby submits to the exclusive personal jurisdiction and venue of the Court of Common Pleas of Erie County, Pennsylvania. D&E and Supplier expressly exclude the application of the United Nations Convention on Contracts for the International Sales of Goods, as amended. In the event of any conflict among the provisions of the Order, the following order of precedence, shall apply in interpreting the Order: (i) the text of the Order; (ii) any special or supplemental terms, conditions or agreement incorporated by reference in the Order; and (iii) these standard Order Terms and Conditions.
D&E Terms and Conditions F11.9 Rev 1
D&E is a fully integrated producer of precision CNC-machined components and assemblies that meet customer specifications and standards within Aerospace, Defense and Commercial Industries. We look forward to reviewing your next project, lets talk.
D&E is a fully integrated producer of precision CNC-machined components and assemblies that meet customer specifications and standards within Aerospace, Defense and Commercial Industries.