Dubuque Screw Products

Purchasing Terms and Conditions

1. ACCEPTANCE; COMPLETE AGREEMENT

The Order, Purchase Order, or Invoice (collectively the “Order”) placed by Dubuque Screw Products, Inc. (“Dubuque Screw Products”) with any party providing goods or services to it (hereinafter a “Seller”) and the Terms and Conditions contained herein (the “Terms and Conditions”) constitute the complete agreement between the parties and may not be altered or modified except in writing duly executed by each party.

Written acceptance by Seller of the Order, or the commencement of any work or the performance of any services thereunder by Seller (including any work or services with respect to samples) shall constitute acceptance by Seller of the Order and all of these Terms and Conditions.

Any additional terms or conditions contained in Seller’s acceptance or acknowledgement of the Order, or in any other document, shall be deemed objected to by Dubuque Screw Products without the need for further notice of objection, and shall be of no effect, nor shall they be binding upon Dubuque Screw Products under any circumstances unless expressly accepted by Dubuque Screw Products in writing (and not accepted through reference by another document).

Dubuque Screw Products’ acceptance or rejection of one or more additional terms or conditions shall not constitute an acceptance of any other additional term or condition. Trade custom, trade usage and past performance are superseded by these Terms and Conditions and shall not be used to interpret the Order and these Terms and Conditions.

Dubuque Screw Product’s engineering, technical and other personnel may from time to time render assistance or give technical advice to Seller concerning the Order or the goods or services called for therein. However, neither such assistance, advice or exchange of information, nor acceptance of, nor payment for, any nonconforming shipment shall constitute a waiver with respect to any of Seller’s obligations or Dubuque Screw Product’s rights hereunder or be authority for any change in the goods or services called for in the Order.

For any waiver or change to an Order or these Terms and Conditions to be valid and binding on Dubuque Screw Products, the same must be in writing and signed by an authorized representative of Dubuque Screw Product. In case of doubt, prior to incurring any additional expense, Seller should promptly consult an authorized representative of Dubuque Screw Product for further written instructions.

2. ORDER CHANGES

Dubuque Screw Products, through an authorized representative, shall at any time have the right to make changes to the scope of an Order including, but not limited to changes in (1) the drawings, designs and specifications applicable to the goods or services called for therein, (2) the method of shipping and packing, or (3) the place of delivery.

If any such change affects the time for or cost of performing the work, an equitable adjustment shall be made in the delivery scheduled or the purchase price, or both, provided Seller submits its written claim for adjustment prior to starting any such work and within five (5) days after receipt of the written change order.

3. TAXES

Except as otherwise provided in the Order, the prices stated on the Order include all applicable federal, state and local taxes and duties.

4. COMPLIANCE WITH LAWS AND REGULATIONS

Seller agrees that goods called for in the Order will be supplied, manufactured, prepared, sold, installed, and delivered in complete and strict compliance with all relevant federal, state and local laws and pertinent regulations, including applicable safety laws and regulations.

5. EXCUSABLE DELAYS

(a) Seller shall not be liable for failure to perform under the Order arising from causes that are beyond its control and without the fault or negligence of Seller, its suppliers, and its subcontractors, provided Seller gives Dubuque Screw Products written notice of such cause immediately upon learning of the same and, in any event, no later than forty-eight (48) hours following the occurrence of the cause.

If Seller fails to perform because of any such causes, Dubuque Screw Products shall be entitled to obtain goods or services called for in the Order elsewhere for the duration of such failure and to reduce, pro tanto, and without any obligation to Seller, the quantity of goods or services called for in the Order.

Notwithstanding this section 5(a), and unless otherwise excused by Dubuque Screw Products in writing, Seller agrees to exert every reasonable effort, including the application of overtime and premium shipments at the expense of Seller, to meet the promised delivery dates.

Seller agrees to notify Dubuque Screw Products immediately if at any time it appears that the delivery schedule set forth in the Order may not be met. Such notification shall include the reasons for any possible delays, steps being taken to remedy such problems, and a proposed new delivery date. The furnishing by Seller of such notice shall not constitute a waiver of any of Dubuque Screw Products’ rights under the Order or these Terms and Conditions.

(b) If Dubuque Screw Products is temporarily unable to receive or utilize the goods or services called for herein because of causes beyond its control and without its fault or negligence, Dubuque Screw Products may suspend Seller’s performance for the period of such disability by written notice to Seller, without additional liability to Seller for such suspension.

6. WARRANTIES

By accepting the Order, Seller expressly represents and warrants that:

(a) THE GOODS AND SERVICES PURCHASED THEREUNDER WILL CONFORM TO ALL DESCRIPTIONS, SPECIFICATIONS, MODELS, SAMPLES OR DRAWINGS FURNISHED, APPROVED OR SPECIFIED, WILL BE FREE OF DEFECTS IN MATERIAL, WORKMANSHIP, AND DESIGN, AND WILL BE MERCHANTABLE AND FIT FOR THE PARTICULAR PURPOSE INTENDED;

(b) there has been no violation of any trademark, patent right, or copyright in the manufacture, production or sale of the goods or services;

(c) Seller has good and merchantable title to the goods, sale and transfer of the goods to Dubuque Screw Products is rightful, and the goods will be delivered free from any security interest, lien or encumbrance whatsoever.

These express representations and warranties by Seller are in addition to, and shall not be deemed to be a waiver of, such other warranties as may be expressed by Seller, implied in law or fact or provided by any statute or regulation.

Seller will indemnify and save harmless Dubuque Screw Products against any and all losses, including but not limited to Dubuque Screw Products’ increased production costs and lost profits, damages, liabilities, claims and suit at law or in equity, including attorneys’ fees and costs, which may be made or brought against or suffered by Dubuque Screw Products by virtue of any breach of the foregoing warranties or of the Order by Seller.

7. INTELLECTUAL PROPERTY

Seller will exonerate, indemnify, or hold harmless Dubuque Screw Products and its affiliated entities, successors or assigns, customers, officers, agents, or employees from any and all liability, damage, loss, cost, or expense which may accrue or be sustained on account of any claim, proceeding, suit, or action brought for actual or alleged infringement of any patent (including copyright, trademark, trade name and third party property right).

Seller will defend any such claim, suit, or action on behalf of Dubuque Screw Products under any circumstances. In such event, Seller agrees that, upon Dubuque Screw Products’ request, it will defend, at its own expense, Dubuque Screw Products, Dubuque Screw Products’ agents and officers, and Dubuque Screw Products’ customers against any such claim, suit, or action.

In the event Seller’s performance under the Order requires research or development work, Sellers agrees to, and does hereby, grant Dubuque Screw Products, its successors and assigns, a non-exclusive and royalty-free license under any inventions, improvements or discoveries conceived or first reduced to practice in connection with such research or development work, such license to include the right to have goods made for Dubuque Screw Products in accordance with, or using the processes of, said inventions, improvements or discoveries.

8. ASSIGNMENT OR SUBCONTRACT

Seller may not assign or subcontract any portion of the Order to a third party at any time and for any reason, except for regularly purchased components, without the prior written consent of Dubuque Screw Products which consent can be withheld in Dubuque Screw Products’ sole discretion.

9. NONDISCLOSURE OF INFORMATION

Without Dubuque Screw Products’ prior written consent, which can be withheld for any reason in its sole discretion, Seller shall not disclose to any third person, except as necessary to procure articles or services necessary to the manufacture or production of goods called for in the Order, any information which it has acquired under or as a result of the Order or negotiations leading to it concerning Dubuque Screw Products’ plans, drawings, specifications, business, objectives, customers, personnel, products, process, work or services, unless such information becomes generally known without the fault of Seller, or is obtainable from other non-confidential sources.

Seller shall not disclose or release for public dissemination, without Dubuque Screw Products’ prior written consent, any information relative to the Order.

10. LIABILITY INSURANCE

Seller represents and warrants that it carries adequate public liability, general liability, and property damage insurance with responsible insurers to cover any work performed by Seller for Dubuque Screw Products or on the premises of Dubuque Screw Products or Dubuque Screw Products’ customers. On Dubuque Screw Products’ request, Seller shall provide certificates of insurance to verify its coverage.

11. DUBUQUE SCREW PRODUCTS’ PROPERTY

Unless otherwise provided in the Order, all material, tooling, designs and other property furnished to Seller by Dubuque Screw Products, or acquired or made by Seller at the expense of Dubuque Screw Products, or the cost of which is included in the price of the Order:

  1. shall be and remain the property of Dubuque Screw Products for which Seller shall bear all risk of loss and damage,
  2. shall, at the expense of Seller, be maintained in first-class condition and replaced to the extent necessary to produce acceptable parts,
  3. shall not be used for or furnished to anyone other than Dubuque Screw Products,
  4. shall be available for Dubuque Screw Products’ reasonable inspections, and
  5. shall be delivered to Dubuque Screw Products upon request, FOB to Seller’s plant.

12. SHIPPING RELEASES

Unless specific delivery dates are provided in the Order, Seller shall not fabricate any of the goods called for in the Order, or procure any of the materials required in its fabrication, or ship any of such goods to Dubuque Screw Products, except to the extent authorized in written releases furnished to Seller by Dubuque Screw Products, and Dubuque Screw Products shall have no responsibility for goods beyond the reasonable lead production requirements of the releases.

Dubuque Screw Products may, from time to time, direct temporary suspension of scheduled shipments for up to thirty days at no additional cost.

13. PACKING, MARKING, AND SHIPPING

Seller shall pack, mark and ship all goods in accordance with the requirements of the Order, in accordance with good commercial practice, and in a manner which will permit the securing of the best transportation rates.

No additional charge shall be made by Seller for containers, crating, boxing, bundling, dunnage, drayage or storage. Seller shall reimburse Dubuque Screw Products for all expenses incurred by it as a result of improper packing, marking or shipping.

14. WAIVER OF RIGHT TO JURY TRIAL

Both parties waive the right to a jury trial with respect to or in any suit, action, proceeding, claim, counterclaim, demand, or other matter arising out of this Order and these Terms and Conditions.

15. TERMINATION

If the Order is terminated by Dubuque Screw Products for reasons other than the default of Seller, Seller shall be paid:

  1. the Order price for goods completed satisfactorily and delivered prior to the time of termination, and
  2. an equitable amount to cover the reasonable costs actually expended by Seller on goods terminated and not delivered, less the reasonable value of such goods.

No amount shall be paid for any anticipatory profits, and the amount paid for goods terminated shall not exceed the prices set forth for the same on the Order.

16. DEFAULT; REMEDIES

Upon Seller’s default, Dubuque Screw Products’ rights and remedies shall be cumulative and the rights and remedies contained in these Terms and Conditions are not exclusive but, instead, are additional to all other rights and remedies Dubuque Screw Products may have by law.

Dubuque Screw Products shall be entitled to exercise all of its remediates and to recover from Seller all damages, including without limitation, incidental and consequential damages, provided in or allowed by the Iowa Uniform Commercial Code, as amended from time to time, and all other applicable laws, for breach by Seller of any of its obligations under the Order or these Terms and Conditions, including the option to “cover” and record as damages the difference between the cost of the cover and the purchase price under the Order (less expenses saved in consequence of Seller’s breach).

Seller may not limit, restrict, or otherwise modify any of the rights or remedies of Dubuque Screw Products.

17. CHOICE OF LAW AND FORUM

The Order and these Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Iowa; and without application of any conflict of law provisions.

The parties agree that the District Court for Dubuque County, Iowa and the United States District Court for the Northern District of Iowa have exclusive jurisdiction over all claims, causes of action, and disputes arising under these Terms and Conditions or the Order.

Both parties waive any objection which it may now or hereafter have to the bringing of any such action or proceeding in any court in the State of Iowa. The parties agree the UN Convention of Contracts for the International Sale of Goods shall not apply to the sale of products hereunder.