These Terms and Conditions of Purchase apply to all purchase orders issued by Marmic Fire & Safety Co., Inc., and its affiliates. The active version of these Terms and Conditions is available at the link printed on the face of each purchase order.
A Marmic Fire & Safety Co., Inc. (“Marmic”) purchase order (“PO”) constitutes Marmic’s offer to purchase the products (“Products”) and/or services (“Services”) described therein (collectively, “Deliverables”) from supplier of such Products and/or Services (“Seller”) in accordance with (i) the following terms and conditions and (ii) any additional terms and conditions printed on the face of the PO that do not conflict with such following terms (collectively, the “Agreement”). All other terms and conditions contained in Seller’s sales quotation, order acknowledgement, acceptance, or any other Seller documents (collectively, “Seller’s Documents”) are hereby expressly rejected and superseded by the Agreement, and failure by Marmic to object to any provisions in Seller’s Documents shall not be deemed acceptance thereof, nor a waiver of any terms of the Agreement. Seller shall be deemed to accept the Agreement upon the earlier of (i) acceptance or acknowledgement of the PO, whether orally, in writing, or otherwise, or (ii) commencement of performance of Seller’s obligations under the Agreement. The Agreement may only be amended or superseded by an express written agreement signed by a duly authorized representative of Marmic.
Time is of the essence, and deliveries shall be made both in quantities and at times specified in Marmic’s PO. All prices shown on the face of this order are DDP at the destination specified in the PO (INCOTERMS 2020), unless otherwise specified on the face of the PO, and are the entire remuneration for the Deliverables purchased hereunder. Risk of loss and title shall pass to Marmic upon receipt of Products at Marmic’s designated facility, unless stated otherwise on the face of the PO. All sales, use, excise, or similar taxes to be paid by Marmic must be itemized separately on invoices. Undisputed invoices shall be net sixty (60) days after the latest of (i) receipt of a correct invoice, (ii) acceptance of conforming Product, or (iii) satisfactory completion of Services, unless stated otherwise on the face of the PO. Marmic may adjust invoiced amounts for errors, shortages, and defects. Marmic may withhold payment pending receipt of evidence, in such form and detail as Marmic may direct, of the absence of any liens, encumbrances, and claims on the goods or services under the Agreement.
Seller warrants that the prices specified for the Deliverables are not less favorable than those Seller currently extends to its other customers buying the same or similar goods or services in similar quantities under similar circumstances. If, before delivery, Seller reduces its prices for like goods or services to comparable customers, the price specified in the PO shall be reduced accordingly. No PO may be filled at a price higher than last quoted without Marmic’s prior written consent.
Unless instructed otherwise, Seller shall (i) ship the material covered by the PO complete; (ii) ship in accordance with the instructions appearing on the face of the PO and not prior to the requested date; and (iii) place the PO number on all packaging and shipping documents. Each delivered container must be labeled to identify its contents without opening, and packages must contain packing sheets listing their contents. Seller shall provide suitable protective packing to permit safe transportation and handling at no additional charge and shall bear full responsibility for damage due to improper packing or shipping of the Products. Damage to any items resulting from improper packaging will be charged to the Seller.
Marmic has the right to inspect the Products at Seller’s site prior to delivery, and Marmic has the right to inspect and accept the Products within a reasonable time after delivery. Where Marmic discovers defective or non-conforming Products, including errors in quantity, Marmic, at its option, and without waiving its other legal remedies: (i) may refuse delivery of or return Products for refund, credit, repair, or replacement at Seller’s expense; or (ii) may obtain a reasonable price reduction. If Seller delivers a quantity of Products less than specified in the applicable PO, Marmic may cancel the PO in respect of the undelivered quantity without any liability to Marmic whatsoever. Seller will comply with applicable quality, safety, and regulatory requirements and with good commercial practice and applicable law.
Seller represents and warrants that all Products are genuine, new, and, where applicable to the type of Product, are listed, labeled, classified, or approved by a Nationally Recognized Testing Laboratory (such as UL, FM Approvals, or ETL/Intertek) for their intended application, and conform to the editions of all applicable codes, standards, and regulations in effect on the date of delivery, including, as applicable, the standards of the National Fire Protection Association (NFPA), the requirements of the Occupational Safety and Health Administration (OSHA), and the requirements of any authority having jurisdiction (“AHJ”). Seller shall furnish, upon Marmic’s request and at no additional charge, current listing cards, approval documentation, certificates of conformance, safety data sheets, and installation, operation, and maintenance documentation for the Products. Seller shall promptly notify Marmic of any recall, field correction, listing withdrawal, or safety notice affecting the Products. Seller shall reimburse Marmic for all costs, expenses, labor, removal costs, replacement costs, testing costs, engineering costs, attorneys’ fees, and other damages arising from any recall, field correction, listing withdrawal, safety notice, or regulatory action affecting Products supplied by Seller.
Marmic reserves the right at any time to make changes in quantity, time or place of delivery, specifications, drawings, Product description, methods of shipment or packaging of any items, or cancel or suspend a PO without Seller’s consent (collectively, “Change”). In such event, Marmic and Seller shall negotiate a reasonable compensation amount, provided that Marmic shall not have any liability or obligation for any cancellation or suspension made ten (10) days or more prior to the scheduled delivery date. Notwithstanding any provision to the contrary herein or in any other document issued by either party unless such document is signed by both parties and specifically refers to this Section, if Marmic places a blanket PO for scheduled multiple release deliveries, Marmic shall only be obligated to take receipt of up to three (3) months of scheduled deliveries from the date of the PO, and Marmic reserves the right to cancel the balance of the scheduled deliveries beyond the initial three (3) months at any time and for any reason without financial impact. Any claim for adjustment in price shall be deemed waived unless made within ten (10) days in writing. Nothing contained in this clause shall relieve the Seller from proceeding without delay in the performance of a PO as Changed. Seller shall proceed with performance of any Change pending resolution of any adjustment dispute and shall have no right to suspend performance.
Seller shall notify Marmic by written communication to purchasing@marmicfire.com as soon as it becomes aware that it cannot meet the delivery date specified on the face of a PO and shall propose a new delivery date. In the event of such delay, at no additional cost to Marmic, Seller shall employ accelerated measures such as material expediting fees, premium transportation costs, or labor overtime to ensure the Products are delivered on or before the stated delivery date. In the event a delay in delivery or the new delivery date proposed by Seller is not acceptable to Marmic, in addition to any other rights and remedies that may be available to it at law, Marmic may cancel the PO without any liability whatsoever to Marmic.
Neither party shall be liable for any delay or failure to perform (other than payment obligations) to the extent caused by an event beyond its reasonable control that was not reasonably foreseeable and not due to its fault (a “Force Majeure Event”), such as acts of God, fire, flood, severe weather atypical for the location or season, war, terrorism, civil disturbance, or government action. A Force Majeure Event does not include Seller’s inability to obtain materials, equipment, or labor; the acts or omissions of Seller’s suppliers or subcontractors (except to the extent such supplier or subcontractor is itself prevented from performing by a Force Majeure Event); strikes or work stoppages primarily involving Seller’s own workforce; economic hardship; or commercial impracticability. The affected party shall give written notice within five (5) days of becoming aware of the Force Majeure Event, describing it and its estimated duration, and shall use commercially reasonable efforts to mitigate and to resume performance. If a Force Majeure Event causes a shortage of Products, Seller shall allocate available Products among its customers, including Marmic, on a fair and pro rata basis. Seller shall not be entitled to any price increase by reason of a Force Majeure Event. If a Force Majeure Event continues for more than ten (10) days, Marmic may cancel the affected PO, in whole or in part, without penalty or liability.
Marmic shall be entitled to setoff or reduce against amounts payable under any PO (i) any claims against Seller under a PO or any other agreement, or (ii) any amount Seller owes to Marmic for any reason whatsoever.
(i) By the acceptance of this order or delivery of the Products or Services, Seller warrants that Products and any components (including any software, firmware, or repair components) thereof (A) do not and will not infringe any patent, copyright, trademark, trade secret, or other intellectual or proprietary rights of others of any kind; (B) are new and comprised of new materials; (C) will be safe for any use consistent with the discussions of the parties; and (D) for a period of three (3) years from delivery to Marmic, the Products will conform to all applicable specifications and listings. Seller further warrants that the Services will be completed in a professional workmanlike manner, with the degree of skill and care that is required by good and sound professional procedures. (ii) The warranties herein contained are in addition to any warranties implied by law and expressly made by Seller other than hereunder. (iii) Seller warrants that Products and all components are merchantable, free from defects in design, materials and workmanship, and fit for the intended purpose. The warranties in this Section, together with Seller’s own warranties for such Products or Services, shall survive inspection, acceptance, and payment hereunder and shall inure to Marmic, its successors, and customers. In addition to any other remedies that it may have, Marmic may, at its option and at Seller’s expense, either (i) return all defective or nonconforming Products for a full refund or full credit of the purchase price or (ii) demand replacement of the defective or nonconforming Products.
Seller shall defend, indemnify, and hold harmless Marmic, its affiliated entities, and their respective directors, officers, employees, agents, subcontractors, and other representatives (for purposes of this Section, collectively, “Marmic”) from any and all loss, damage, liability, cost (including reasonable attorneys’ fees), penalty, or any other expense of whatever nature, economic loss, and foregone profits (collectively, “Claims”) actually or proximately resulting from the failure of Products to conform to Seller’s warranties and representations or arising out of any act or omission of Seller (including negligence) directly or indirectly relating to the Agreement, the use or sale of the Products, whether alone or in combination, or Services performed pursuant to the Agreement. The foregoing includes without limitation any Claims relating to allegations, actions, or proceedings for breach of contract, in tort (including negligence), intellectual property infringement, any statutory, regulatory, or other legal claims, claims for bodily injury (including death) and damage to property.
During the term of any PO and for at least three (3) years thereafter, Seller shall, at its own expense, maintain insurance with carriers having an A.M. Best rating of A- (VII) or better, including: (i) Commercial General Liability, including products and completed-operations and contractual liability, with limits of not less than USD $1,000,000 per occurrence and USD $2,000,000 in the aggregate; (ii) Automobile Liability covering owned, hired, and non-owned vehicles with a limit of not less than USD $1,000,000 combined single limit; (iii) Workers’ Compensation at statutory limits and Employer’s Liability of not less than USD $1,000,000; and (iv) where Seller provides professional, design, or engineering services, Professional/Errors and Omissions Liability of not less than USD $1,000,000 per claim. Seller’s Commercial General Liability, Automobile Liability, and any Umbrella/Excess policies shall name Marmic and its affiliates as additional insureds, shall be primary and non-contributory to any insurance carried by Marmic, and shall include a waiver of subrogation in favor of Marmic. Upon request, and before delivery or commencement of performance, Seller shall furnish certificates of insurance evidencing the foregoing and providing for at least thirty (30) days’ written notice of cancellation. Seller’s insurance obligations shall not limit Seller’s liability or indemnity obligations under the Agreement.
Seller agrees to defend, indemnify, and hold harmless Marmic, its successors, and customers against any claims of infringement (including patent, trademark, copyright, industrial design right, or other proprietary right, or misuse or misappropriation of trade secret) and resulting damages and expenses (including attorney’s and other professional fees) arising in any way in relation to the Products supplied or Services performed under the Agreement, including such claims where Seller has provided only part of the goods or services.
Seller shall not substitute any Product, or fill an order with a different make, model, brand, or version than that specified on the PO, without Marmic’s prior written approval. Seller shall promptly notify Marmic of any planned discontinuance of, or material change to, an ordered Product, and of any superseding or replacement Product, in sufficient time to allow Marmic to evaluate the change before shipment. Seller shall not subcontract or assign the Agreement, or any portion thereof, without Marmic’s prior written approval, except for the purchase by Seller of standard commercial supplies or raw materials. Breach of this Section shall entitle Marmic to terminate the applicable PO immediately, in addition to pursuing any other remedies available to it.
Any tooling, equipment, materials, samples, specifications, software, or other property furnished by Marmic to Seller, or specifically paid for by Marmic, in connection with a PO (“Marmic-Furnished Property”) shall remain the property of Marmic. Seller shall hold such property in trust for Marmic; use it only to perform the applicable PO; keep it clearly identified as Marmic’s property and segregated from Seller’s own property; bear the risk of loss or damage to it while in Seller’s possession or control; and insure it for its replacement value. Upon Marmic’s request or completion of the applicable PO, Seller shall promptly return Marmic-Furnished Property in good condition, ordinary wear and tear excepted, or deliver it as Marmic directs.
If the Products or Services are to be used by Marmic in whole or in part for the performance of a government contract or subcontract, the clauses required by applicable law or regulation to be included in such contract or subcontract are incorporated herein by reference, but only to the extent that such clauses are applicable to Seller and the Products or Services purchased hereunder. Seller shall, upon request, identify whether the Products or Services are subject to any such requirements and shall provide reasonable cooperation and documentation necessary to enable Marmic to comply with its obligations under any government contract.
Seller and all Deliverables supplied by Seller shall comply with all applicable federal, state, and local laws, regulations, orders, conventions, ordinances, and standards, including, but not limited to, those relating to manufacture, labeling, transportation, importation, licensing, environmental protection, data protection and privacy, wages, hours, and conditions of employment, anti-discrimination, occupational health and safety, motor vehicle safety, and equal employment opportunity. Seller represents that neither it nor any of its subcontractors will utilize child, slave, prisoner, or any other form of forced or involuntary labor, or engage in abusive employment or corrupt business practices, in the supply of goods or provision of Services under this Agreement. Seller agrees to comply with all anti-corruption laws, including the U.S. Foreign Corrupt Practices Act, and that neither it nor any of its subcontractors will directly or indirectly provide or offer to provide anything of value to or for the benefit of any official or employee of a governmental authority to obtain or retain any contract, business opportunity, or other benefit, or to influence any act or decision of that person in his or her official capacity. Seller shall indemnify and hold Marmic harmless from and against any liability claims, demands, or expenses (including attorney’s or other professional fees) arising from or relating to Seller’s noncompliance. Upon reasonable notice, Seller shall permit Marmic and its representatives to inspect and audit Seller’s records, facilities, certifications, quality-control procedures, and documentation relating to Products and Services supplied under this Agreement for purposes of verifying compliance with this Agreement.
Seller represents that neither it nor any of its owners, officers, employees, agents, or representatives has offered or provided, directly or indirectly, any money, gift, gratuity, entertainment, loan, or other thing of value to any Marmic employee or representative as an inducement to do business with Seller, and that Seller complies with all applicable anti-kickback laws. Seller shall promptly notify Marmic of any violation or suspected violation of this Section.
Seller shall comply with all applicable customs, import, export, and economic-sanctions laws, and shall provide, upon Marmic’s request, country-of-origin and tariff-classification information for the Products. Any duty savings or trade benefits arising from such information shall belong to Marmic.
Seller warrants that all Products supplied to Marmic are genuine, new, and procured directly from the Original Equipment Manufacturer (OEM) or its authorized distributors, and not from gray-market or unauthorized sources. If any Product delivered is found to be counterfeit, used, or otherwise not genuine, Marmic may impound the affected items, and Seller shall promptly replace them with conforming Products and bear all costs of removal, replacement, and any testing necessitated thereby. At Marmic’s request, Seller shall surrender any counterfeit items for referral to the appropriate authorities.
Seller shall use commercially reasonable efforts to source materials responsibly and to comply with applicable laws relating to responsible sourcing and labor practices. Upon Marmic’s reasonable request, Seller shall provide information reasonably available to it to support the environmental, social, and governance (ESG) reporting of Marmic and its affiliates and investors, including greenhouse gas (GHG) emissions, energy use, and similar sustainability data relating to the Products supplied and Seller’s performance under the Agreement. Marmic will limit such requests to information reasonably available to Seller and will treat any non-public information so provided as Seller’s confidential information.
Seller is an independent contractor for all purposes, without express or implied authority to bind Marmic by contract or otherwise. Neither Seller nor its employees, agents, or subcontractors are agents or employees of Marmic, and therefore are not entitled to any employee benefits of Marmic, including but not limited to any type of insurance. Seller shall be solely responsible for (i) all costs and expenses incident to performing its obligations under this Agreement; (ii) providing its own supplies and equipment; (iii) filing the appropriate federal, state, and local tax forms, and paying all such taxes or fees, including estimated taxes and employment taxes, due with respect to Seller’s receipt of payment from Marmic; and (iv) obtaining and maintaining such adequate health, auto, workers’ compensation, unemployment compensation, disability, liability, and other insurance, as is required by law or as is the common practice in Seller’s trade or business, whichever affords greater coverage.
Without Marmic’s prior written authorization, Seller shall not, directly or indirectly, use or disclose to any person drawings, specifications, technical information, financial information, business information, or any other data or information pertaining to Marmic’s affairs (“Confidential Information”) furnished by Marmic in connection with a PO or this Agreement, except as necessary for Seller to furnish efficiently the Deliverables pursuant to the Agreement. Upon termination of a PO, Seller shall immediately discontinue use of and return to Marmic all the Confidential Information, including copies, which include all such technical information and all other data supplied to Seller by Marmic. Seller shall not, without prior written consent of Marmic, in any manner advertise or publish the fact that Seller is doing business with Marmic or use any names or logos or other identifying marks of Marmic in presentations, publications, or otherwise. These confidentiality and nondisclosure obligations do not extend to information which Seller has obtained from a third party in a manner permissible under law and on a non-confidential basis, and information that is in the public domain. Seller shall also require its subcontractors to adhere to the confidentiality and nondisclosure provisions set forth in this Section.
Marmic may terminate the PO in its entirety, or any unfilled portion thereof, without penalty or expense when such cancellation is due to Seller’s failure or apparent inability to fulfill its obligations hereunder or if Seller is in breach of any of its obligations in this Agreement. In such an event, Marmic may procure elsewhere, upon such term as Marmic may deem appropriate, products or services similar to those so provided hereunder, and Seller shall reimburse Marmic for reasonable costs incurred in excess of the prices hereunder. In the event of the commencement of any proceedings by or against either party in bankruptcy or insolvency under any provisions of applicable bankruptcy laws, or the appointment of a receiver or trustee or the assignment for the benefit of creditors, the other party may terminate a PO without further cost or liability. The rights and remedies of Seller and Marmic hereunder are not exclusive and in addition to any other rights and remedies provided by law or a PO. The provisions of Sections that by their nature should survive shall survive the expiration or termination of this Agreement for any reason. Marmic may terminate any Purchase Order for convenience, in whole or in part, upon written notice to Seller. In such event, Marmic shall be liable only for conforming Products delivered and accepted, and Services properly performed through the effective date of termination.
This Agreement sets forth the entire agreement and supersedes any and all prior agreements of the parties with respect to the transactions herein (excluding any non-disclosure agreement). A copy, facsimile, or electronic version of this document shall have the same force and effect as the original document.
This Agreement shall be governed by and construed in accordance with the laws of the State of Missouri, without regard to its conflicts of laws principles. The parties expressly exclude the United Nations Convention on Contracts for the International Sale of Goods. The parties agree that any dispute, claim, or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity thereof shall be brought exclusively in the state or federal courts located in Jasper County / the Western District of Missouri, and Marmic and Seller hereby submit to the exclusive jurisdiction of such courts and waive any objection to venue therein, provided that Marmic shall have the right to institute legal actions consistent with this provision in any court that has jurisdiction over the Seller. Seller expressly waives any claim that such forum is inconvenient or improper. Nothing in this Section shall preclude either party from seeking temporary or permanent equitable relief (including but not limited to temporary restraining orders or preliminary injunctions) as necessary to avoid or limit irreparable harm before any court of appropriate jurisdiction. EACH PARTY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO A TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
In any action, proceeding, or dispute arising out of or relating to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees, expert witness fees, costs, and expenses incurred in connection therewith.
The invalidity of any provision of this Agreement shall not affect the validity of any other provision, and the remaining provisions and terms shall be deemed valid and enforceable to the extent possible.
No waiver of any default of Seller or Marmic shall be valid unless provided in writing by the non-defaulting party. Any delay by Seller or Marmic in the exercise of any rights or remedy shall not be deemed to constitute a waiver of any rights or remedy or operate as a waiver of any other right or remedy. No waiver, amendment, modification, or change to this Agreement shall be effective unless in writing and signed by an authorized representative of Marmic. No course of dealing, course of performance, email communication, oral statement, or failure to enforce any provision shall constitute a waiver of any rights under this Agreement.
