Terms and Conditions
CREATIVE FOAM TERMS AND CONDITIONS OF PURCHASE
These Terms and Conditions of Purchase, as they may be amended from time to time (“Terms”), apply when referenced by Creative Foam Corporation (“Purchaser”) in any purchase order (including revisions thereof), or other documentation submitted by Purchaser to a supplier or vendor (“Seller”).”
“Goods” as used herein shall mean the goods, products, materials, supplies, parts, assemblies, drawings, documents, or services covered by this purchase order. “Production” and “delivery” as used herein shall include any services to be rendered under this purchase order.
- Additional Documents. All specifications, drawings, technical data and documents expressly referred to in this purchase order are incorporated herein by reference.
- Complete Agreement. This purchase order, including all items incorporated herein by reference, contains the final and entire contract between Purchaser and Seller. And no agreement or other understanding purporting to add to or modify the terms and conditions hereof shall be binding upon Purchaser unless agreed to by Purchaser in writing on or subsequent to the date of this purchase order. The parties have agreed and it is their intent that the battle of the forms Section 2-207 of the Uniform Commercial Code shall not apply to the Terms or to any proposal, invoice or acceptance form of Seller. It is the parties’ intent that these Terms shall exclusively control the relationship of the parties, and in the event of any inconsistency between any invoice or acceptance form sent by Seller and these Terms, these Terms shall control.
- Non-Assignment. Seller shall not delegate to any other person the production of goods under this purchase order. Seller may not transfer, assign or delegate, in whole or in part, any rights or obligations under any purchase order without Purchaser’s written consent, which shall be at Purchaser’s sole discretion. In the event Purchaser authorizes an assignment or delegation, Seller shall remain liable for the Goods thereunder and any and all of Seller’s obligations, including, without limitation, all related warranties and claims. Purchaser shall be entitled to assert against Seller all rights, claims and defenses of any type (including, but not limited to, rights of set-off, recoupment and counterclaim), which Purchaser could assert against Seller, whether acquired prior or subsequent to such assignment. Purchaser may assign or delegate any of its rights or duties under the purchase order to any third party upon notice to Seller.
- Governing Law. This contract shall be interpreted and applied according to the laws of the State of Michigan. Any claims arising from this purchase order may be brought solely in courts of Genesee County, in the State of Michigan. Purchaser and Seller hereby consent to such jurisdiction and service of process in accordance with applicable procedures of such jurisdiction. Any legal action by Seller under any purchase order must be commenced no later than one year following the first to occur of: (1) the breach or other event giving rise to Seller’s claim, or (2) Seller becoming aware of the existence (or facts and circumstances giving rise to the existence) of such claim.
- All cash discount periods shall be computed from the date of receipt by Purchaser of a correct invoice or goods, whichever is later. Cash discounts will be based on full amount of invoice less freight charges and taxes separately stated on invoice.
- Seller and Purchaser represent and warrant that (i) it is the intention of each to ensure that the actions, duties, and obligations under, pursuant to, and in connection with these Terms, are and shall remain in compliance with all applicable laws and regulations and (ii) any discounts provided under these Terms are intended to comply with 42 U.S.C. § 1320a-7b(b) (the “Anti-Kickback Statute”). To the extent required to satisfy 42 C.F.R. § 1001.952(h) (the “Anti-Kickback Statute Discount Safe Harbor”) or other applicable laws and regulations, any discounts provided under these Terms will fully and accurately be reflected in any submissions to any federal health care programs and, upon request by the Secretary of the U.S. Department of Health and Human Services or a state agency, will make available information concerning the discounts. Accordingly, Seller shall disclose, in writing, with such frequency and in such forms, as reasonably requested from time to time, the aggregate and specific dollar value of any discount. Seller shall take all actions required to satisfy those elements of the Anti-Kickback Statute Discount Safe Harbor applicable to Seller. Seller shall refrain from doing anything that would impede the Purchaser’s ability to meet its legal obligations, including those under applicable safe harbor regulations.
- Extra Charges, Invoices and Payment.
- The price (the “Price”) of Goods stated on the purchase order is complete, fixed, and includes all expenses, costs and charges of Seller, and no surcharges, premiums or other additional charges of any type shall be charged to Purchaser unless specifically agreed to in writing by Purchaser. Seller assumes the risk of any event or cause affecting Prices. The Price is to cover net weight, unless otherwise mutually agreed. No invoices shall be issued by Seller nor payment made by Purchaser until after the delivery of Goods. All state and federal excise, sales and use taxes shall be stated separately on the invoices. Prices may be subject to decrease in connection with any changes requested by Purchaser. If a dispute arises regarding Prices, Seller shall continue to perform its obligations under the purchase order according to the most recent Prices the parties shall have agreed upon, until such dispute is resolved.
- If not otherwise specified, Purchaser will pay all undisputed amounts to Seller sixty (60) days following Purchaser’s receipt of a correct invoice together with documentation in compliance with these Terms. Purchaser may withhold payment pending receipt of supporting evidence in detail and form requested by Purchaser. All payments are subject to set-offs or adjustments by Purchaser for storage, rejection, discrepancies, and other unresolved issues.
- Transportation Charges. Any transportation charges with respect to which Seller is entitled to receive reimbursement shall be added to Seller’s invoice as a separate item, with the freight bill attached thereto. No parcel post insurance charges will be allowed unless authorized by Purchaser in writing. Seller agrees that Purchaser shall not be liable for any excess charges resulting from the use of unauthorized transportation. No goods valued in excess of $500 are to be shipped via Parcel Post. Seller shall not declared any value on goods shipped via United Parcel Service, Air Express, Air Freight or Parcel Post. Seller shall release rail or truck shipment at the lowest valuation permitted in governing tariff or classification. If Seller’s acts or omissions result in or are likely to result in Seller failing to meet Purchaser’s delivery requirements and Seller requires a more expeditious method of transportation for the Goods than originally specified by the parties, Seller will be solely responsible for all excess freight costs.
- Reduction in Rates, Duties or Taxes. Any reduction in applicable freight rates, customs duties, import taxes, excise taxes, and/or sales taxes from those in force on the date of this purchase order, whether separately stated on the face of the order or not, shall be paid to Purchaser or credited against the price of the goods.
- Duty Drawbacks Rights. This purchase order includes any and all related customs duty drawback rights, which are transferable from Seller to Purchaser. Seller shall inform Purchaser of the existence of any such rights and upon request supply such documents as may be required for Purchaser to obtain any such drawback.
- Transportation Packaging and Routes. All goods shall be properly packed, marked, loaded and shipped as required by this order and the transporting carrier, and shipped in a manner which will permit the lowest transportation rates to apply. Seller shall reimburse Purchases for all expenses incurred due to improper packing, marking, loading or routing. Seller shall route shipments in accordance with Purchaser’s instructions and shall offer all shipments to Purchaser’s Transportation Operations unless otherwise instructed.
- Delivery; Title; Risk of Loss. Delivery shall not be complete until goods have been actually delivered to and accepted by Purchaser, notwithstanding any agreement to pay freight, express, parcel post, or other transportation charges. Title to the Goods shall pass to Purchaser upon the completion of delivery and be free of all liens, claims or encumbrances whatsoever. The risk of loss or damage in transit shall be upon the Seller, except where shipment is by Purchaser’s vehicle in which case the risk of loss or damage shall pass to Purchaser upon completion of loading.
- Shipping Releases. Seller shall not produce any of the Goods covered by this purchase order, or procure any of the materials required in their production, or ship any of such goods to Purchaser, except to the extent authorized in written instructions furnished to Seller by Purchaser or as necessary to meet specific delivery dates provided in this purchase order. Purchaser shall have no responsibility for Goods delivered by Seller for which delivery dates or such written instructions have not been provided. Purchaser is not obligated to accept early, late, partial or excess deliveries or make payments in excess of quantities specified in Purchaser’s delivery schedules. Shipments in excess of those authorized in Purchaser’s delivery schedule may be returned to Seller and, in which case, Seller shall reimburse Purchaser for all packing, handling, sorting, loading, and transportation expenses in connection with such shipments. Purchaser may from time to time change its shipping schedules specified in this purchase order or contained in other written instructions, or direct temporary suspension of its scheduled shipments.
- Delays. Seller shall in the event of a delay or threat of delay, due to any cause, in the production or delivery of goods hereunder, immediately notify Purchaser and shall include with such notice all relevant information with respect to such delay or threatened delay. Seller shall be liable for any damages resulting from failure to make delivery within the time called for by this purchase order or by any written instructions of Purchaser except where (1) such delay in delivery is due to causes beyond the reasonable control of Seller (a “Force Majeure Event”), and (2) Seller notifies Purchaser as aforesaid. If Seller for any reason cannot comply with Purchaser’s delivery schedule, Purchaser, in addition to any other rights or remedies available to it by law or under these terms and conditions, may terminate this purchase order or cancel any shipments thereunder without further liability to Seller. Notwithstanding anything herein to the contrary, none of the following will be considered a Force Majeure Event and shall not excuse Seller’s performance hereunder: (i) change in costs of Goods, (ii) Seller’s inability to obtain power, materials, components, labor, equipment or transportation based on market conditions or Seller (or its Supplier’s) actions, (iii) contract disputes, and (iv) any labor strike or other labor disruption affecting Seller or any of its subcontractors or suppliers.
Inspection and Acceptance
- Inspection. All Goods shall be subject to inspection and test by the Purchaser and its customers, to the extent practical, at all times and places and in any event prior to acceptance by Purchaser.
- Liability of Seller. Acceptance or rejection of the Goods shall be made as promptly as practicable after delivery, except as otherwise provided in this order; however, Purchaser’s inspection and acceptance, or its failure to inspect and accept or reject the Goods, shall not relieve Seller from its responsibility to comply with the purchase order requirements, nor will it impose liability on Purchaser or prejudice any of Purchaser’s rights or remedies.
- Rejection of Goods. Payment shall not constitute final acceptance. Defective goods will be returned at Seller’s risk and expense at full invoice price, plus transportation charges, if any, and no replacement of defective goods shall be made unless specified in writing by the Purchaser. Purchaser may reject and return any portion of any shipment of goods under this purchase order which may be defective or fail to comply with applicable specifications, drawings, samples or descriptions without invalidating the remainder of the order.
Termination at Option of Purchaser
- Termination for Convenience. Production of Goods under this purchase order may be terminated in whole or in part, by Purchaser at any time by delivering written notice of termination to Seller.
- Seller Obligations. After receipt of a notice of termination and unless otherwise directed by Purchaser, Seller shall:
- immediately terminate all production of Goods under this purchase order;
- terminate all orders and subcontracts relating to the production of Goods as terminated by the notice;
- settle all claims arising out of such termination of orders and subcontracts;
- transfer title and deliver to Purchaser (i) all completed goods which conform to the requirements of this purchase order and do not exceed the amount authorized for production by Purchaser, and (ii) all reasonable quantities (but not in excess of amounts authorized by Purchaser) of Goods in process, and materials produced or acquired by Purchaser specifically for the productions of the Goods, provided such Goods in process and materials (x) are of a type and quality for producing Goods which conform to the requirements of this purchase order and (y) cannot be reasonably used by Seller in producing goods for itself or for its other customers;
- take all action necessary to protect the property in which Purchaser has or may acquire an interest.
- Termination Claim. Following termination by Purchaser under this Section, Seller will submit to Purchaser not later than three months from the effective date of termination (or one month in the case of partial termination), its “Termination Claim” which shall consist of the following amounts, without duplication:
- the purchase order price for all Goods which have been completed in accordance with this purchase order;
- the actual costs incurred by Seller in accordance with this purchase order to the extent such costs are reasonable in amount and properly allocable to the terminated portion of this purchase order, including the actual cost of Goods in process and materials delivered to Purchaser in accordance with subparagraph 2(d)(ii) above, and including the actual cost of discharging liabilities which are so allocable or apportionable, pursuant to subparagraph 2(c) above; and
- the reasonable costs incurred by Seller in protecting property in which Purchaser has or may acquire an interest. Payments made under this subparagraph (b) and (c), shall not exceed the aggregate Price specified in this purchase order, less payments otherwise made or to be made.
Purchaser shall have no obligation for and shall not be required to make payments to Seller (or Seller’s subcontractors) for: (i) loss of anticipated profit, (ii) unabsorbed overhead, (iii) interest on claims, (iv) product development and engineering costs, (v) tooling, (vi) facilities and equipment rearrangement costs or rental, (vii) unamortized capital or depreciation costs, and (viii) finished goods, work-in-process or raw materials that Seller fabricates or procures in amounts that exceed those authorized amounts in the purchase order.
- Payment of Termination Claim. Purchaser shall pay to Seller the amounts listed on a timely submitted Termination Claim within sixty (60) days of receiving the Termination Claim and supporting evidence in detail and form requested by Purchaser. In the event Seller fails to submit its Termination Claim within the time period specified in Section 3 above, Purchaser may determine, on the basis of information available to it, the amount, if any, due Seller with respect to the termination, and such determination shall be final and binding on the parties.
- Limit of Liability. Purchaser’s obligation upon termination under this Section shall not exceed the obligation Purchaser would have had to Seller in the absence of such termination.
- Seller shall not be entitled to the additional compensation referenced under Sections 3 or 4 if a purchase order is cancelled by Purchaser as a result of the default of Seller.
Termination at Option of Seller
Seller may terminate a purchase order at any time and for any reason by delivering not less than 180 days prior written notice to Purchaser.
- Changes requested by Seller, may be made in drawings, specifications, descriptions, shipping instructions, quantities and/or delivery schedules only by the prior written notice of consent or Purchaser. Should any such change requested by Seller increase or decrease the cost of or the time required for production of goods under this purchase order, Seller shall immediately notify Purchaser, and Purchaser shall make an equitable adjustment in the purchase price or delivery schedule, or both.
- Purchaser reserves the right to make changes to the purchase order or otherwise change the scope of work covered by the purchase order at any time by written notice to Seller. The parties will discuss in good faith any pricing adjustments required in connection with the change requested by Purchaser.
- In addition to any implied warranties, the Seller warrants that (i) all goods covered by this purchase order will be merchantable and free from defects in material and workmanship and will conform to applicable specifications, drawings, samples and descriptions in the order and be otherwise consistent with industry standards, (ii) the Goods conform to all applicable safety and other laws and will not at any time pose an unreasonable risk to consumer safety, and (iii) the Goods are free from latent defects or conditions that would give rise to a defect. In case any such goods shall be defective or otherwise not in conformity with this order, Seller shall at Purchaser’s option and in addition to all other remedies of the Purchaser either credit the Purchaser for, or at Seller’s own expense replace, repair or correct any such goods. Such warranties, together with service warranties and guarantees, shall run to Purchaser, its successors, assigns, customers and to the users of its products, and shall survive any inspection, delivery, acceptance or payment by Purchaser of or for the goods. Seller shall hold Purchaser harmless for any costs, expenses and damages, whether direct, indirect, incidental or consequential, arising from a breach of these warranties. Purchaser shall have the right to source replacements for any Goods determined by Purchaser to be defective or not otherwise in conformity with this purchase order, and Seller will reimburse Purchaser for any difference in cost of such replacements plus all associated expenses and losses arising out of or related to any adverse effect on Purchaser’s business as a result of pursuing such alternative sourcing. Seller’s warranties are intended to provide Purchaser with protection from any and all warranty claims brought against Purchaser by its customers and all customer-required warranties are incorporated herein by reference.
- To the extent required to satisfy 42 C.F.R. § 1001.952(g) (the “Anti-Kickback Statute Warranty Safe Harbor”) or other applicable laws and regulations, any warranties (replacement, repairs, or other remedial actions) provided under these Terms will fully and accurately be reflected in any submissions to any federal health care programs and, upon request by the Secretary of the U.S. Department of Health and Human Services or a state agency, will make available information concerning the discounts. Accordingly, Seller shall disclose, in writing, with such frequency and in such forms, as reasonably requested from time to time, the aggregate and specific dollar value of any warranty. Seller shall take all actions required to satisfy those elements of the Anti-Kickback Statute Warranty Safe Harbor applicable to Seller.
Unless otherwise agreed to in writing, all tools, equipment, documents or other material of every description furnished to Seller by Purchaser or for which Seller has been reimbursed by Purchaser, including any replacements thereof and any materials affixed or attached thereto, shall be the personal property of Purchaser. Such property shall at all times be properly maintained by Seller, shall be appropriately marked to establish Purchaser’s ownership, shall not be commingled with the property of Seller or of any third party, shall not be moved from Seller’s premises without Purchaser’s prior written approval, and shall be held at Seller’s risk and expense. Seller shall, upon Purchaser’s written request, sign and file a Financing Statement as “Consignee”, in accordance with Section 9-408 of the Uniform Commercial Code, to secure title of such property in Purchaser. Such property shall be subject to removal at Purchaser’s written request in which event Seller shall redeliver such property in the same condition as originally received by Seller, reasonable wear and tear excepted, all at Seller’s expense. Purchaser shall have the right to enter upon Seller’s premises at all reasonable times to inspect such property and Seller’s records with respect thereto. Seller agrees not to use any designs, tools, patterns, drawings, materials or other information or equipment furnished by Purchaser in the manufacture or design of any goods for any other customer and further agrees not to use or disclose to any third party any confidential or proprietary information of Purchaser, acquired by Seller in the course of producing goods under this purchase order.
Seller agrees to indemnify and hold harmless Purchaser and its customers against all liability, loss, and expense (including attorney’s fees) by reason of any claim, action or litigation arising out of any alleged or actual, direct or contributory infringement of patent arising from the purchase, use or sale of the goods. In case the purchase, use or sale of said Goods; or any part thereof, is held to constitute infringement or is enjoined, Seller shall, at its own expense, procure for Purchaser and its customers the right to continue the purchase, use and sale of such goods; or, with the approval of Purchaser, modify such Goods so they become non-infringing, or remove such goods and refund the purchase price and the transportation and installation costs thereof.
Harmful Ingredients or Defects
Whenever Seller becomes aware that any ingredient or component of the Goods covered by this purchase order are or may become harmful to persons or property, or that the design or construction of the goods is defective in any manner which is or may become harmful to persons or property, Seller shall immediately give notice thereof, including all relevant information with respect thereto, to Purchaser.
Licensing of Inventions
If this order involves experimental, development or research activities, including engineering related thereto, all information developed in the course thereof shall be owned by Purchaser and be deemed confidential and proprietary property of Purchaser, whether patented or not, and Seller shall cooperate (and cause his employees to cooperate) in executing any documents and taking any other actions necessary or convenient to patent or otherwise perfect or protect for the benefit of Purchaser any inventions conceived, developed or reduced to practice in performance of this purchase order. If the order does not involve such experimental, developmental or research activities, but the goods covered by it are to be produced in accordance with drawings or specifications furnished by Purchaser, Seller hereby grants to Purchase irrevocable, non-exclusive and royalty-free license to make, have made, use and sell any improvement in the goods which is conceived, developed or reduced to practice by Seller in the production of the goods under this purchase order.
Seller shall not disclose that Purchaser has contracted with Seller without Purchaser’s prior written consent.
Purchaser shall be entitled at all times to set off any amount owing at any time from Seller or any affiliated company of Seller, to Purchaser or any of its affiliated companies, against any amount payable at any time by Purchaser in connection with this purchase order. By “affiliated company” is meant any corporation, firm or association, which controls, is controlled by or is under common control with Seller or Purchaser, as the case may be.
Technical and Business data supplied will be deemed confidential and proprietary and remain the sole property of Purchaser or its applicable affiliate.
Compliance with Laws
Seller shall comply with all laws, regulations, ordinances or other governmental regulations now or hereafter applicable to the Goods or the production thereof.
Fair Labor Standards Act
Seller will comply with the Fair Labor Standards Act of 1938, as amended, All invoices shall contain the following assurance: Seller represents that it has complied with the Fair Labor Standards Act of 1938, as amended, in producing the supplies or performing the services covered by this invoice.
Equal Opportunity Clause
The contract provisions of Paragraphs (1) through (7) of Section 202 of Executive Order 11246 issued in 1965, as amended by Executive Order 11375 of 1967, and all rules and regulations pursuant thereto are part of and included in this Purchase Order.
Employment of the Handicapped Clause
The provisions of the affirmative action clause entitled “Employment of the Handicapped”, contained in the Regulations concerning Affirmative Action Obligations of Contractors and Subcontractors, 41 CFR 60-741.3, issued pursuant to the Vocational Rehabilitation Act of 1973, as amended by the Rehabilitation Act Amendments of 1974, is a part of and included in this purchase order.
Listing of Employment Openings for Veterans Clause
The contract clause contained in the Regulations providing for Veteran’s Employment Emphasis Under Federal Contracts, 41 CFR 60-250.4, is a part of and included in this purchase order.
Seller shall comply with the provisions of the Vietnam Era Veterans Readjustment Assistance Act of 1974. Public Law 93-508, as it amends 38 USC 2012, the Vietnam Era Readjustment Assistance Act of 1972.
Age Discrimination in Employment Act
Seller shall comply with the provisions of the Age Discrimination in Employment Act of 1967, as amended in 1978, and all rules and regulations issued pursuant thereto.
Compliance with HealthCare Laws
The parties each certify and warrant that the performance under these Terms and/or any purchase order are intended to comply with, and that these Terms and/or any purchase order do not violate: (i) the federal anti-kickback statute (42 U.S.C. 1320a-7(b)) and related “safe harbor” regulations; and (ii) the federal “Stark Law” (42 U.S.C. 1395nn) and related regulations, as each may be amended from time to time. Further, the parties agree to comply with any applicable anti-kickback “safe harbor” regulations and/or the exception regulations of Stark Law. Accordingly, the parties agree that it is not a purpose of this Agreement to generate referrals for services or supplies for which payment may be made in whole or in part, directly or indirectly, under any federal healthcare program. The amounts to be paid pursuant to these Terms and/or any purchase order have been set without reference to the volume or value of any referrals or other business that may occur between the parties and represent the fair market value of the goods to be furnished by Seller negotiated through good-faith and arm’s length bargaining. Nothing in these Terms and/or any purchase order shall be construed to require a party to direct or refer business to the other party or to any other person or entity. If at any time these Terms and/or any purchase order fail to so comply with the provisions, exceptions and/or safe harbors of the fraud and abuse laws, Purchaser shall amend these Terms and/or any purchase order in order to comply with such laws.
Exclusion from Governmental Programs.
Seller warrants that neither it nor any of its directors, officers, or owners, and to the best of its knowledge, its employees and agents providing services hereunder, have been: (i) convicted of a criminal offense related to healthcare, debarred, suspended, or declared ineligible; (ii) excluded from participating with Medicare, Medicaid or any other plan or program that provides health benefits, whether directly through insurance or otherwise, which is funded directly, in whole or in part, by the United States Government or any state health care program; or (iii) the subject of any civil or criminal proceeding in which any governmental entity alleged fraud or similar wrongdoing. This shall be an ongoing representation and warranty during the term of any purchase order, and Seller shall immediately notify the Purchaser of any change in the status of these representations.
Government Access to Books and Records.
If the Goods purchased have a value or cost of $10,000 or more over a twelve-month period, the parties agree to make these Terms and applicable purchase orders, as well as any books, documents, or records that are necessary to certify the nature and extent of any such costs, available upon request of the Secretary of the U.S. Department of Health and Human Services, the Comptroller General of the United States, or their duly authorized representatives (the “Government Representatives”), for up to four (4) years following the furnishing of goods or services under this purchase order, pursuant to Section 1861(v)(1)(I) of the Social Security Act and 42 C.F.R. § 420.302. Further, in the event that any party utilizes any subcontractor in the performance of any purchase order and the applicable subcontract has a value or cost of $10,000 or more over a twelve-month period, such subcontract shall contain a clause to the effect that, for a period of four (4) years after the furnishing of Goods thereunder, the subcontractor shall make available, upon written request by a Government Representative, the subcontract and any books, documents, and records that are necessary to verify the nature and extent of the subcontract costs. Seller agrees to indemnify the Purchaser in the event that any amount of reimbursement is denied or disallowed because of the failure of Seller to comply with this obligation. Such indemnity shall include the amount of reimbursement denied, plus any interest, penalties and legal costs. If the law or regulations are effectively amended to increase or decrease the annual amount necessary to require this clause, the amount set forth herein shall be amended accordingly.
Warranty Against Physician Ownership.
Purchaser warrants and represents that none of its owners or, to the best of its knowledge, the immediate family members of its owner(s), are physicians.
Right to Audit.
Purchaser, or a third party delegated by Purchaser, may at any time review the overall financial condition of Seller and its affiliates (including without limitation, if requested by Purchaser, providing to Purchaser copies of Seller’s most current income statements, balance sheets, cash flow statements and supporting data and schedules), and Seller shall fully cooperate in such review and shall make its financial managers available for discussions during reasonable business hours. Purchaser and any delegated third party shall keep confidential any non-public information about Seller obtained in such financial review.
To the fullest extent permitted by law, (i) Seller hereby assumes the entire, sole responsibility for any injury to person, including death, or damage to property of any kind or nature caused by, resulting from or in connection with the furnishing of Goods by Seller, its subcontractors, officers, agents, or employees, and (ii) Seller will defend, indemnify and hold harmless Purchaser, including its respective agents, customers, subsidiaries, affiliates, successors and assigns, against any and all claims, damages, losses, liabilities, and expenses (including actual attorneys’ fees) arising out of or resulting in any way from (a) any nonconforming Goods, (b) issues with the physical integrity and shipment of all Goods made by or on behalf of Seller, (c) any negligent or wrongful act or omission of Seller, or Seller’s agents, employees or subcontractors, or (d) any breach or failure by Seller to comply with any of Seller’s representations, these Terms or the terns of the purchase order, except for claims that arise as a result of the sole negligence of Purchaser. Seller’s obligation to defend and indemnify under this Section will apply regardless of whether the claim arises in tort, negligence, contract, warranty, strict liability or otherwise.
Seller’s Minimum Insurance Requirements.
Seller will obtain and maintain, at Seller’s expense, the insurance coverage listed below, or in additional amounts and coverages as may be reasonably requested by Purchaser or (to the extent directed by Purchaser) Customer(s), in each case naming Purchaser and its affiliates (as applicable) as loss payees and as “additional insureds.” Such insurance shall be obtained and maintained from companies listed in the then-current “Best’s Insurance Guide” as possessing a minimum policy holders rating of “A-“ (excellent) and a financial category no lower than “IX”. Such insurance shall be primary and non-contributory and provide for a waiver of subrogation. Within ten (10) days of Purchaser’s written request, Seller will furnish to Purchaser a certificate showing compliance with this requirement or certified copies of all insurance policies. The certificate will provide that Purchaser will receive thirty (30) days prior written notice from the insurer of any termination or reduction in the amount or scope of coverage. The existence of insurance does not release Seller of its obligations or liabilities under any order. Minimum coverage is as follows:
STATE SALES TAX NUMBERS FOR THE PURCHASER’S INDIVIDUAL PLANT LOCATION WILL BE PROVIDED UPON REQUEST OF THE SELLER. CREATIVE FOAM CORPORATION, IDENTIFICATION NUMBER 38-1905349
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