“The following clauses are incorporated by reference to any and all purchase orders with Century Tool to the extent indicated below. These clauses set forth Seller’s minimum obligations and do not diminish any Seller obligations set forth elsewhere in the Purchase Order. For purposes of this introductory paragraph and the headings below, the term Purchase Order shall include any agreement between Century Tool and Seller, to include Purchase Orders, Task Orders, Purchase Orders, Basic Ordering Agreements and Orders. The effective version of each clause shall be the version that applies to Century Tool under its prime contractor higher-tier Purchase Order. In all cases, the clauses shall be interpreted to apply to Seller as necessary to reflect the position of Seller as a Supplier to Century Tool, to ensure Seller’s obligations to Century Tool, and to enable Century Tool to meet its obligations to its customer.”
3rd Party Beneficiaries: This Purchase Order is for the sole benefit of the parties hereto and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or will confer upon any third-party any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Purchase Order.
Voluntary Action: Each Party acknowledges that it performs this Purchase Order voluntarily and freely, without coercion, threat, or distress.
Grammar: As used in this Purchase Order and Terms and Conditions, the singular or plural number shall be deemed to include the other whenever the context so indicates or requires. Where a defined term is used but not capitalized, it is assumed the defined term was intended unless the circumstances suggest otherwise.”
Heading: The headings or captions used in the Purchase Order or Terms and Conditions are for reference purposes only and are not intended to be used or relied upon in interpreting or enforcing this Purchase Order or Terms and Conditions.
Severability: If any term or provision of the Purchase Order or Terms and Conditions is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect the enforceability of any other term or provision of the Purchase Order or Terms and Conditions or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the parties shall negotiate in good faith to modify the Purchase Order or Terms and Conditions to effect the original intent of the parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
Force Majeure: Neither Party shall be liable to the other for failure to perform any of its obligations under the Purchase Order or Terms and Conditions during any time in which such performance is prevented by fire, flood, or other natural disaster, pandemic (including Covid-19), war, embargo, riot, civil disobedience, or the intervention of any government authority, or any other cause outside of the reasonable control of the Parties, provided that the Party so prevented uses its best efforts to perform under the Purchase Order or Terms and Conditions and provided further, that such Party provide reasonable notice to the other Party of such inability to perform. Performance obligations of the Parties may be extended by the amount of delay caused by Force Majeure events, upon mutual written agreement.
Entire Agreement: The Purchase Order, including and together with any related attachments, is the sole and entire agreement of the parties with respect to the subject matter herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, whether written or oral, regarding such subject matter.
Assignment/Subcontract: Supplier may not sublicense the rights or obligations granted under the Purchase Order without the prior written approval of Century Tool.
Amendment/Modification: No amendment or modification to this Purchase Order is effective unless it is in writing and signed by an authorized representative of each Party.
Waiver: No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the waiving Party. No waiver by any Party will operate or be construed as a waiver of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. Except as otherwise set forth in the Purchase Order or Terms and Conditions, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from the Purchase Order or Terms and Conditions will operate or be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. Any waiver, permit, consent, or approval of any kind by either Party of any breach of or default under this Agreement must be in writing and shall be effective only to the extent set forth in such writing.”
Warrant of Authority: The Supplier, by performing, warrants and represents that they have the respective authority necessary to sign and/or execute the Purchase Order.
Governing Law/Forum: The validity, interpretation, construction, performance, enforcement, and remedies of or relating to the Purchase Order or Terms and Conditions and the rights and obligations of the Parties to the Purchase Order or Terms and Conditions, shall be governed and construed in all respects by the substantive laws of the State of Minnesota (without regard to the conflict of laws rules or statutes of Minnesota or any other jurisdiction that might result in the application of other law).
All disputes arising under or related to Purchase Order or Terms and Conditions shall be commenced and maintained exclusively in the federal and state courts situated in the County of Hennepin, State of Minnesota and all Parties hereby irrevocably submit to the jurisdiction and venue of any such court.”
Construction/Interpretation: The Purchase Order is intended to be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted.
Independent Contractor: The relationship of the Parties to each other shall at all times be that of independent contractors. None of the terms of the Purchase Order, or any act or omission of either Party shall be construed for any purpose to express or imply a joint venture, partnership, principal/agent, fiduciary, or employer/employee relationship between the Parties. Each Party shall provide sole supervision and shall have exclusive control over the actions and operations of its employees, and agents used to perform its services hereunder. Neither Party has any right to control, discipline or direct the performance of any employees, or agents of the other Party. Neither Party shall represent to any third party that it is anything other than an independent contractor in its relationship to the other Party.”
Indemnification: SUPPLIER SHALL DEFEND, INDEMNIFY, AND HOLD CENTURY TOOL HARMLESS FROM AND AGAINST ANY CLAIMS, ACTIONS (INCLUDING SUBPOENAS, CIVIL INVESTIGATIVE DEMANDS, AND/OR ARBITRATION) OR DAMAGES, ARISING OUT OF SUPPLIER’S PERFORMANCE UNDER THIS PURCHASE ORDER, PROVIDED, HOWEVER, CENTURY TOOL SHALL NOT OFFER SETTLEMENT IN ANY SUCH CLAIM WITHOUT THE AGREEMENT OF SUPPLIER WHICH AGREEMENT SHALL NOT BE UNREASONABLY WITHHELD. IF CENTURY TOOL OFFERS OR AGREES TO A SETTLEMENT FOR SUCH A CLAIM WITHOUT THE WRITTEN AGREEMENT OF SUPPLIER, SUPPLIER SHALL BE RELIEVED OF ITS INDEMNIFICATION OBLIGATION. CENTURY TOOL SHALL BE LIABLE TO SUPPLIER FOR ANY CLAIMS, ACTIONS, OR DAMAGES DUE TO SUPPLIER’S OWN NEGLIGENCE OR INTENTIONAL ACTS. FAILURE OF INSURANCE COVERAGE (IF ANY), FOR ANY REASON, SHALL NOT EXONERATE SUPPLIER FROM ITS INDEMNITY OBLIGATIONS HEREUNDER. THE OBLIGATION TO DEFEND SHALL INCLUDE ALL FEES AND COSTS OF DEFENSE AS THEY ACCRUE.
Limitation of Liability: TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, CENTURY TOOL WILL NOT BE LIABLE TO THE OTHER PARTY UNDER OR IN CONNECTION WITH THE PURCHASE ORDER OR TERMS AND CONDITIONS FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, OR ENHANCED DAMAGES, OR FOR ANY LOSS OF ACTUAL OR ANTICIPATED PROFITS (REGARDLESS OF HOW THESE ARE CLASSIFIED AS DAMAGES), WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, (INCLUDING THE ENTRY INTO, PERFORMANCE, OR BREACH OF THIS THE PURCHASE ORDER OR TERMS AND CONDITIONS, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.”
Non-Exclusivity: This is not an exclusive Purchase Order. Century Tool is free to engage others to perform and provide services and work product the same as or similar to those provided by Supplier hereunder. Subject to the Purchase Order and these Terms and Conditions, nothing contained in the Purchase Order or Terms and Conditions is intended to restrict, nor restricts Supplier from advertising, offering and providing Supplier’s services to others.”
Inducement: By executing the Purchase Order or performing the same, Supplier represents and warrants that it has not relied on any warranty or other statement not in this Purchase Order or the Terms and Conditions and the Purchase Order and Terms and Conditions constitutes the final and complete expression of all terms between the Parties.
Notification of Intent to Sell: Supplier will notify Century Tool in a timely fashion of intent to sell the company or its assets. This notification will not hinder Supplier from the sale nor provide Century Tool with any right of refusal.
Warranties: Supplier warrants that the products to be supplied by the Purchase Order shall be prepared, made, manufactured, or otherwise brought into being with the standard of workmanship typical in the industry, will be free of latent or patent defects, shall not infringe on any intellectual property of other parties, and shall be fit for the purpose of the product. Century Tool shall have all implied warranties preserved in its favor.
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