Acceptance and Complete Agreement. The sale of all goods (“Goods”) to Atkore Inc., or any of its subsidiaries, including without limitation, AFC Cable Systems, Inc.; Allied Tube & Conduit Corporation; American Pipe and Plastics, Inc.; Atkore Plastic Pipe Corporation; Atkore Steel Components, Inc.; Calpipe Industries, LLC; Columbia-MFB, Inc.; Georgia Pipe Company or Unistrut International Corporation (collectively, “Buyer”) from any seller (“Seller”) or the performance of all work (“Work”) for Buyer by Seller is subject to these Terms and Conditions of Purchase (“Terms”). These Terms constitute the parties’ entire agreement and may not be altered or modified except in a writing signed by each party. These Terms shall be deemed accepted by Seller’s failure to object in writing to these Terms within 10 days after receipt or Seller’s shipment of Goods or commencement of Work. Trade custom, trade usage and past performance are superseded by these Terms and will not be used to interpret these Terms. Any term or condition furnished by Seller are rejected and are not applicable to the sale or shipment of Goods or the performance of Work.
Delivery and Title. All Goods shall be packed, marked and shipped in a manner suitable for the Goods and in accordance with the requirements of the carrier or as directed by Buyer. When freight cost is to be borne by Buyer and Buyer does not specify manner of shipment, Goods shall be shipped in a manner to secure the lowest transportation cost. Shipment shall be made in the quantities and at the times specified by Buyer. Any Goods not shipped by Seller or received by Buyer in accordance with these Terms may be rejected by Buyer. Buyer, from time to time, may change shipping schedules or direct that Seller temporarily suspend any shipments. Unless otherwise provided by Buyer, all sales are F.O.B. Buyer’s place of business and Seller shall be fully responsible for the Goods and bear all risk of loss or damage until the Goods are delivered to the designated destination. If the sale is made F.O.B. shipping point, Seller shall be liable for any loss or damage claims which are declined by carrier when such loss or damage is caused by Seller’s failure to comply with packing, loading or other similar requirements of Buyer or carrier. Seller shall bear all risk of loss of or damage to Goods after Buyer’s written notice to Seller of Buyer’s rejection or cancellation of this order.
Delays. Time is of the essence of this order. If the Work is not completed by the scheduled date for completion provided by Buyer, in Buyer’s sole discretion, Seller may be liable to Buyer in an amount equal to 5% of the contract amount for each week, or part thereof, which elapses between the scheduled date for completion and the actual completion date, in addition to all losses, damages, costs and expenses incurred by Buyer due to such delay, including, without limitation, consequential and incidental damages. If delivery of Goods is not made by the scheduled delivery date provided by Buyer, Buyer may cancel this order and obtain the Goods elsewhere or may accept late delivery and, in either case, Seller shall be liable to Buyer for any losses, damages, costs and expenses caused by Seller’s failure to make timely delivery including, without limitation, consequential and incidental damages and the difference in cost between the price of the purchased Goods and Seller’s price of the Goods. Buyer may set off all such amounts against any amounts then or thereafter due Seller, whether arising hereunder or otherwise.
Inspection and Rejection of Goods. All Goods shall be received by Buyer subject to Buyer’s inspection and right of rejection. Goods shall not be considered accepted until on inspection, testing or use, they are found to be in accordance with Buyer’s specifications. Buyer shall determine the place and time of inspection in accordance with reasonable practices which may be at either the Buyer’s or Seller’s place of business, or the place of manufacture. If any Goods are found at any time to be defective in material or workmanship or otherwise not in conformity with Buyer’s specifications, Buyer, in addition to any other rights which it may have under warranties or otherwise, shall have the right to reject such Goods in whole or in part. Rejected Goods will be returned or disposed of at Seller’s expense according to Seller’s instructions. No Goods returned shall be repaired or replaced by Seller without written authorization from Buyer.
Acceptance of Work. All Work shall be subject to Buyer’s approval and shall be provided in accordance with Buyer’s specifications and all applicable laws, orders, rules and regulations. In addition to any rights which Buyer may have under warranties or otherwise, Buyer, in Buyer’s discretion, may require Seller to correct any defective Work at Seller’s expense or Buyer may correct such defective Work and charge the cost thereof to Seller.
Warranties. In addition to all warranties which may be provided by law or as otherwise provided by Seller, Seller warrants that all Goods and Work furnished hereunder shall (a) be free from defects in design, material and workmanship, (b) conform to drawings, plans, specifications, samples, or other descriptions furnished, accepted, or approved by Buyer, (c) be merchantable and fit for the purposes intended and (d) be provided in a professional and workmanlike manner in accordance with standard industry practices and in accordance with these Terms and applicable laws, rules, orders and regulations. Such warranties, including warranties provided by law, shall benefit Buyer, its successor, assigns and customers and shall survive acceptance of the Goods and Work.
Tools and Materials. Buyer shall retain title to any design, patterns, dies, molds, tools, plates, cuts, gauges, special items and materials furnished by or paid for by Buyer in connection with this order. Such items shall be held at Seller’s risk and if lost, damaged or destroyed shall be replaced by Seller without charge to Buyer. Such items shall be used exclusively in the production of the Goods or performance of Work and their use for any other purposes is prohibited unless previously approved by Buyer, in writing. Such items are subject to removal by Buyer from Seller’s premises on demand, without cost to Buyer.
Ownership. Except for previously developed know-how and methodologies proprietary to Seller which do not encompass any confidential or proprietary information belonging to Buyer, Buyer shall have title to, ownership of, and all proprietary rights in Seller’s work product and all deliverables provided to Buyer, including all works-in-progress, all of which shall be considered “work made for hire,” as defined by the copyright laws of the United States. Seller shall execute all documents as may be necessary to assign such rights to Buyer and to protect Buyer’s rights in the Work and all works-in-progress.
Installation Service. Unless otherwise specified by Buyer, Seller, at no extra cost to Buyer, shall install any Goods at the location designated by Buyer and shall make any adjustments which are necessary or appropriate to cause any such Goods to operate properly as installed and to successfully complete Buyer’s testing of such Goods. After Goods have been properly installed by Seller and have been accepted by Buyer, Seller shall, when necessary from time to time, provide maintenance service with respect to Goods as agreed by the parties. Unless otherwise specified by Buyer, Seller shall perform or cause to be performed any such maintenance service at a price to Buyer equal to the direct labor cost of such work to Seller for time actually spent on Buyer’s premises, without any allowance for travel time or travel expenses. Seller shall promptly fill Buyer’s orders for spare and replacement parts or assemblies throughout the useful life of the Goods, as determined by Buyer.
Indemnity. Seller shall defend, indemnify and save harmless Buyer, its affiliates, successors and assigns, from and against any and all liability, loss, damage, cost or expense arising out of or in connection with Seller’s furnishing of Goods or performance of Work, including, without limitation, any alleged or actual personal injury (including death), property damage or any actual or claimed infringement of any third party’s intellectual property or proprietary rights. This indemnity, and all other agreements of indemnity herein, shall survive the acceptance of Goods or Work.
Insurance. Seller shall procure and maintain in full force and effect, at its expense, products liability, completed operations and other appropriate insurance covering Seller’s obligations hereunder and as otherwise required by Buyer. Prior to entering upon Buyer’s premises for the performance of any Work, Seller shall furnish to Buyer certificates evidencing insurance for such occurrences and in such limits as Buyer shall request including, without limitation, the following:
(a) Workmen’s Compensation and Occupational Diseases in statutory limits in accordance with applicable State or Federal Law;
(b) Employer’s liability with limits of at least $1,000,000 per accident;
(c) Comprehensive General Liability insurance including Contractual Liability Coverage covering the contractual obligations of these Terms, with limits not less than $5,000,000 for each occurrence of bodily injury, including death, and $5,000,000 for each occurrence of property damage; and
(d) Comprehensive automobile liability covering all vehicles that Seller owns, hires or leases in an amount not less than $2,000,000 (combined single limit for bodily injury and property damage).
Any such insurance shall not be subject to change or cancellation except by written notice to Buyer at least 30 days prior to the effective date of such change or cancellation.
Mechanics Liens. Seller shall keep the real property and buildings upon which Work is performed or material or Goods supplied hereunder free and clear of all mechanics’ liens arising out of the labor, material, or services furnished in the performance of the Work. Seller shall indemnify, defend and save Buyer, its successors and assigns, harmless from and against all claims or actions by reason of any such alleged or actual mechanics’ liens. Prior to payment for and acceptance of any part of the Work by Buyer, Seller, if requested by Buyer, shall present Buyer with such certified statements, affidavits, and waivers of lien from Seller, its subcontractors and materialmen, as Buyer may deem necessary or appropriate. Buyer may retain sufficient amounts as it deems appropriate to protect its interest and may refuse to make payments to Seller due to claims which are or may be asserted against Buyer by any laborer, materialmen, or subcontractor who has performed Work or supplied material in connection with the Work, until satisfactory evidence in writing is furnished to Buyer that said claim, demand, or indebtedness has been paid and satisfied and that any related lien has been discharged and released.
Termination, Modification or Cancellation. Buyer reserves the right to cancel or modify this order at any time upon notice to Seller without further liability. Buyer may cancel this order without further liability if bankruptcy or insolvency proceedings are instituted by or against Seller or if Seller makes an assignment for the benefit of creditors, or for the appointment of a receiver or trustee.
Taxes and Charges. Unless otherwise provided herein, the purchase prices provided for herein shall include any and all federal, state and local taxes or charges of any kind or nature whatsoever which may be applicable to the manufacture, use, or sale to Buyer of Goods or the performance of Work. Any such taxes or charges not included in the purchase price shall be the responsibility of the Seller. Without limiting the foregoing, Buyer shall not be liable to Seller for any amounts which Seller may be required to pay under any applicable Illinois Municipal Retailer’s Occupation Tax or for any taxes related to Seller’s income.
Variable Price for Goods. If no firm price is agreed upon by the parties, then the price for the Goods shall be set as provided in this Section. If not stated herein, Seller shall, prior to shipment, provide Buyer with a statement of the price of the Goods if the Goods had been shipped on the date of this Purchase Order (the “Quoted Price”). Prior to shipment, Seller shall inform Buyer, in writing, of the proposed price of the Goods (the “Proposed Price”). The Proposed Price shall be increased or decreased from the Quoted Price based only on dollar for dollar changes in the direct costs of the Goods to Seller. If requested by Buyer, Seller shall provide Buyer with such records and documentation as may be necessary or appropriate, in Buyer’s discretion, to determine or confirm the correctness of the proposed Price. If Seller fails to comply with this Section, Buyer may cancel, obtain substitute Goods elsewhere, and recover from Seller the difference between the Quoted Price and the cost to Buyer of the substituted Goods. If the Proposed Price is more than 110% of the Quoted Price, Buyer may terminate this order without any liability of any kind to Seller.
Variable Price for Work. The price of Work shall be agreed upon by the parties. If the price of Work is determined in whole or in part with reference to material and/or labor costs, Seller shall maintain and provide Buyer with such records as Buyer may deem necessary or appropriate to properly determine the price, including, without limitation (i) receipts for the delivery of material executed by a duly authorized representative of Buyer together with corresponding invoices and (ii) daily time sheets approved by a duly authorized representative of Buyer showing the number of employees working and the hourly rate for each employee. Buyer may refuse to make any payments hereunder until Seller complies with this Section. If Seller fails to supply Buyer with appropriate documentation within 30 days after request, Buyer may discharge its obligations hereunder by paying Seller a fair and reasonable price for the Work, as determined in Buyer’s sole discretion.
Payments. Unless otherwise agreed by the parties, Buyer shall pay all undisputed fees due under this order within 60 days of its receipt of Seller’s invoice. Buyer shall have the right to withhold payment of any amount due to Seller that Buyer disputes in good faith, which shall not constitute a material breach of Buyer’s payment obligations under this order. The making of any payment or payments by, or on the behalf of, Buyer shall not imply Buyer’s acceptance of such items or the waiver of any warranties or requirements of, or rights to make any claims under, this order.
Supplier Integrity and Sustainability Standards. Seller use commercially reasonable best efforts to comply with the latest version of Atkore’s “Supplier Integrity and Sustainability Standards,” which are available at Suppliers Information, during the term of the Work.
Subcontracting Diversity Encouraged. Seller is encouraged to seek out and provide contracting opportunities to and document the use of diverse suppliers for Seller’s own supply needs, including but not limited to minority-owned, women-owned, veteran-owned, LGBTQ+-owned, and small businesses.
Confidentiality. All technical, business, financial and other confidential or proprietary information provided by Buyer is confidential. Seller may not disclose such confidential information without Buyer’s prior written consent and may not use such confidential information for any purpose other than the sale of the Goods or performance of Work.
Miscellaneous. No delay or omission by Buyer in exercising any right regarding these Terms will operate as a waiver of such right or any other right. A waiver on any one occasion regarding these Terms will not be construed as a waiver of any right or remedy on any future occasion. If all or part of any provision of these Terms is held unenforceable, such holding will not affect the remaining part of that provision, or any other provision of these Terms. These Terms will be interpreted in accordance with Illinois law without regard to its choice of law rules, and the parties agree to submit to the jurisdiction of its federal and state courts. The remedies of Buyer provided for herein shall be cumulative and additional to any other or further remedies provided in law or equity, including remedies for incidental or consequential damages.