Standard Terms & Conditions

Purchase Terms & Conditions

Acceptance:

Acceptance by Supplier of Purchase Order is by written acceptance only. Fulton deems the Purchase Order accepted after receipt of a fully executed copy of the Purchase Order along with these Terms and Conditions. Any proposal by Supplier for additional or different terms is hereby rejected unless agreed to in writing by Fulton. No course of prior dealing or usage of the trade may be used to modify, supplement or explain any terms.

Supplier’s Obligations:

Without limiting its other obligations herein, the Supplier must do the following:

1. Manufacture and supply the goods in accordance with these terms, all applicable laws, standards and codes and in accordance with Fulton’s specifications;
2. Ensure that the goods comply with any laws relating to safety, packaging, labeling, transportation, delivery, importation, exportation and sale of the goods;
3. Ensure that specifications, drawings or samples provided by Fulton are not being used by any third party for their own use;
4. Obtain all applicable licensing, permits and other approvals required for the manufacture, supply, storage, handling and transportation of the goods;
5. Maintain any equipment necessary for the production of the goods in good condition and in accordance with good industry practice;
6. Ensure that the processes used in the manufacture and supply of the goods shall not infringe any Intellectual Property rights of any other party;
7. Package, mark and transport the goods in accordance with Fulton specifications;
8. Possess sufficient facilities and resources and suitably qualified, skilled and experienced personnel to perform its obligations under these terms; and,
9. Ensure that the goods remain competitive in terms of technology, design, price and quality with similar goods available to Fulton.

Pricing:

Supplier will furnish the goods at the prices stated on the face of the Purchase Order, or, if not stated on the face of the Purchase Order, then Supplier will offer its lowest prices subject to written acceptance by Fulton. Unless otherwise stated on the Purchase Order, the prices include all packaging and freight to the specified delivery point as well as applicable taxes and other government charges including, but not limited to, all sales, use or excise taxes and all customs duties, fees or charges.

Invoicing:

After each shipment made or service provided, Supplier will submit an invoice to Fulton describing in detail the goods or services provided. Any incidental charges such as non-recurring engineering or training must be separately itemized on the invoice. The invoice should also include:

1. The name and address of Supplier and the Fulton entity purchasing the Goods;
2. The name of the shipper (if different from Supplier);
3. Fulton’s Purchase Order number(s);
4. Line item number(s);
5. Country of export;
6. Detailed description of the Goods;
7. Weights of the Goods shipped;
8. Currency in which the sale was made;
9. Payment terms;
10. Shipment terms used; and,
11. All rebates or discounts

Payment:

The invoice will be accompanied by a signed bill of lading or express receipt evidencing shipment. Payment of an invoice does not constitute acceptance of the goods and is subject to appropriate adjustment should Supplier fail to meet the requirements of the Purchase Order. Payment terms are net 30 days from receipt of invoice and conforming goods. Fulton will not pay any invoice submitted after ninety (90) days from receipt of goods or services.

Change Orders:

Fulton shall have the right, at any time, to make changes to plans, drawings or specifications, packaging, time, place or method of delivery. If any such change causes an increase or decrease in the cost or time required for performance, Supplier may send a written request for an adjustment in price resulting from the change(s). Supplier waives any request for adjustment if such request is not received in writing by Fulton within ten (10) days after the date upon which Supplier receives Fulton’s changes. Any changes to the design, materials, manufacturing location, equipment or processes specified in the Purchase Order must have advance written approval by Fulton.

Delivery:

Time is of the essence in Supplier’s performance of its obligations under the Purchase Order. Delivery of the goods shall be per the terms specified in the Purchase Order. If delivery is expected to be delayed, Supplier will promptly notify Fulton and will take all reasonable steps, at Supplier’s cost and expense, to expedite delivery thereof. Supplier will ensure that the goods are properly preserved, secured, packaged and labeled and otherwise prepared for shipment in accordance with the instructions of Fulton as specified in the Purchase Order and pursuant to accepted industry practice and carrier regulations, so as to prevent damage and deterioration. If Supplier’s acts or omissions result in Supplier’s failure to meet Fulton’s delivery requirements and Fulton requires a more expeditious method of transportation for the goods, Supplier shall ship the goods as expeditiously as possible at Supplier’s sole expense.

Risk Of Loss:

The goods shall become the property of Fulton and title to them shall pass to Fulton upon delivery to the delivery point designated in the Purchase Order. Supplier shall be responsible for and shall bear the risk of loss or damage to the goods until final completion of their delivery to the delivery point. Any loss or damage which results from Supplier’s non-conformance shall be the responsibility of Supplier.

Force Majeure:

Neither party will be in default for any delay or failure to perform due to causes beyond its reasonable control and without its fault or negligence (“Force Majeure Event”). A Force Majeure Event might include catastrophic storms or floods, lightning, tornadoes, hurricanes, earthquakes and other acts of God, wars, civil disturbances, terrorist attacks, commercial embargoes, epidemics, fires, explosions, and actions of a federal state or local governmental agency.

The party affected by a Force Majeure Event must promptly provide written notice to the other, explaining in detail the cause and duration of the Force Majeure Event. If a Force Majeure Event delays Supplier’s delivery, Fulton may, at Fulton’s sole option, cancel deliveries scheduled during the period of the Force Majeure Event or elect to extend the performance and delivery schedule. Supplier will allocate its available supply of goods in a manner that assures Fulton of at least the same proportion of Supplier’s total output of goods as was allocated to Fulton before the Force Majeure Event. If delivery of any goods is delayed for more than 30 days, Fulton may, without liability, cancel all or any part of this Purchase Order.

Warranty:

In addition to all warranties, express or implied, established by statutes or common law or set forth in the Purchase Order, Supplier expressly warrants that all goods and services covered by the Purchase Order will (a) conform to all specifications, drawings, samples and any other description set forth in the Purchase Order; (b) be of the best quality and fit for the purpose intended, merchantable, of good material and workmanship and free from all patent and latent defects. Supplier warrants all goods against any defects in material and workmanship for a period of not less than twelve (12) months from the date of shipment or eighteen (18) months from the date of use. If Fulton discovers any defect in material or workmanship during the warranty period, upon receipt of notice from Fulton, Supplier will remedy the defect or replace the goods promptly, at no additional cost to Fulton. Supplier will bear all costs incidental to the repair or replacement of the goods, including but not limited to shipping, removal, redesign, disassembly, reinstallation, reconstruction, re-testing and re-inspection. If Supplier refuses or is unable to repair or replace a defect, Fulton may retain a third party to correct the deficiencies and Supplier must pay the full cost of the correction. Fulton’s failure to give notice to Supplier of any breach of any warranty will not discharge Supplier’s liability for any breach. The warranties of Supplier together with its service or any third-party warranties and guaranties, if any, will run to Fulton, its customers and any other third parties. The warranties are not sole or exclusive and are in addition to any other express or implied warranties set forth in the Purchase Order or provided by law.

Inspection:

Fulton has the right, at its sole discretion, to inspection of the goods. Fulton may inspect or test the goods at all reasonable times and places prior to final acceptance, at no additional cost to Fulton. Supplier will provide safe and convenient access to the location of the goods for inspection or testing by Fulton or a Fulton representative. Supplier will pay for any additional cost of inspection or testing if Supplier fails to provide the requested testing samples or supplies when the inspection or test is requested or if re-inspection or re-testing is necessary because of a prior rejection of the goods. Fulton’s failure to exercise its inspection and testing right does not relieve Supplier of its obligation to furnish conforming goods and imposes no liability on Fulton.

Rejection:

Fulton may reject any non-conforming goods without further cost or liability to Fulton. Fulton may require repair or replacement of non-conforming goods at no additional cost to Fulton. Supplier must make any repairs or replacement within the lead time for the goods. Acceptance or payment does not constitute a waiver by Fulton of any rights and will not void or limit any warranties provided by Supplier pursuant to these Terms and Conditions or by law. Fulton reserves the right to return, at Supplier’s expense, for transportation both ways and any storage costs incurred, goods shipped in excess of the Purchase Order or defective goods not meeting Fulton’s specifications and standards, whether paid for or not. No replacement or substitution may be made unless authorized in writing by Fulton. If Supplier is unable to remedy the nonconformance or to deliver replacements or such measures are delayed for an unreasonable period of time, then Fulton may, at its election, rescind the Purchase Order, demand a reduction of the purchase price and/or claim damages from Supplier.

Default:

Supplier shall be deemed to be in default hereunder if it violates any of the terms hereof or fails timely to perform any of its covenants, duties or obligations hereunder, or if it performs or fails to perform any other act, whether pursuant to this Agreement or otherwise, which gives Fulton reasonable grounds to feel insecure with respect to Supplier’s future performance hereunder.

Upon default by Supplier hereunder, Fulton may exercise any or all of the following rights and remedies, in addition to such other rights and remedies as may be provided hereunder or under applicable law: (i) Reject or revoke acceptance of any or all of the Materials, whether or not such Materials are defective and whether or not the condition of delivery thereof otherwise relates to, pertains to, concerns or gives rise to such event of default; and/or (ii) Terminate this Agreement without any obligation whatsoever with respect to Materials not yet delivered to Fulton at the time of such termination. Fulton’s decision to pursue any one such remedy shall not be deemed to be an election not to pursue any other remedy at the same time or at any other time.

Termination:

Termination of the Purchase Order will occur upon the happening of one of the following events:

1. Either party can terminate this order upon thirty (30) days written notice to the other party. Fulton reserves the right to terminate this Order immediately upon breach by Supplier.
2. The non-breaching party may terminate the Purchase Order if the other party commits a material breach and fails to remedy the breach within 30 calendar days following receipt of written notice specifying the grounds for the breach. A material breach includes, but is not limited to, late delivery or delivery of nonconforming goods.
3. Fulton may terminate the Purchase Order at any time if Supplier becomes insolvent or if any petition is filed or proceedings commenced by or against Supplier relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
4. Fulton may terminate this Purchase Order in whole or in part at any time with or without cause for undelivered goods or unperformed services upon ten (10) days’ prior written notice to Supplier.

Fulton’s sole liability to Supplier, and Supplier’s sole and exclusive remedy, is payment for goods received and accepted by Fulton before the termination. The payment can be set off against any damages to Fulton. Upon termination, Fulton may require Supplier to transfer title and deliver to Fulton any completed goods and Fulton will pay the Purchase Order price for those goods subject to set off against any damages to Fulton. Fulton may also require Supplier to transfer title and deliver to Fulton any or all property produced or procured by Supplier to fulfil the Purchase Order. Fulton will credit Supplier with the reasonable value of the property, but not more than Supplier’s actual cost or the Purchase Order value, whichever is less.

On-Site Services:

1. If Supplier will be performing any Services on Fulton’s premises, Supplier’s personnel must comply with Fulton’s site rules and OSHA at all times while on the premises.
2. A completed W-9 form, updated insurance certificate and all on-site related paperwork must be returned to Fulton prior to coming on site.
3. Time is of the essence in Supplier’s performance of its obligations. If performance is delayed, Supplier will promptly notify Fulton and will take all reasonable steps, at Supplier’s cost and expense, to expedite its performance of the Services.
4. Supplier, at its own expense, shall carry, and shall require its Contractors or subcontractors to carry, such insurance which shall protect the Supplier and Indemnitees from loss, expense or claims of every kind. Such insurance will in no event be less than the following: Workers’ compensation and Employer’s Liability Insurance with minimum limits per occurrence of One Million U.S. Dollars ($1,000,000); Comprehensive General Liability Insurance with a single combined limit per occurrence of not less than One Million U.S. Dollars ($1,000,000) with respect to injury or death, or damage to or loss of the property of any person or entity; Automobile Liability and Property Damage Insurance, specifically including coverage for contractually assumed liability hereunder, with a minimum combined single limit per occurrence of One Million U.S. Dollars ($1,000,000), with respect to injury to or death of, or damage to or loss of the property of, any person or entity; Excess Liability Insurance, providing coverage excess to those limits described in (a), (b) and (c), above, with a combined single limit per occurrence of Five Million U.S. Dollars ($5,000,000). The amounts listed above may change from time to time as required by Fulton. At Fulton’s request, Supplier shall furnish Fulton with certificates setting forth the required insurance coverage.
5. All items furnished by Fulton to Supplier in connection with Supplier’s performance of the Services will remain the property of Fulton unless otherwise expressly stated elsewhere. Upon termination of the Services for any reason (or when items are no longer needed by Supplier for the performance of the Services, if earlier), Supplier will promptly return the Fulton property to Fulton or, at Fulton’s option, allow Fulton to retrieve it.

Confidential Information:

Each party agrees to maintain the other party’s confidential information in confidence and to not disclose the other party’s confidential information to any third party without prior written consent. Confidential information and intellectual property shall to be used solely to perform the tasks associated with this Order.

Intellectual Property:

It is understood by both parties that there is no exchange of Intellectual Property rights pursuant to this order. Each party remains the owner of its own Intellectual Property. SUPPLIER AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS FULTON FROM AND AGAINST ALL CLAIMS OR LIABILITIES ARISING FROM ANY ACTUAL CLAIM THAT THE GOODS OR SERVICES, THE USE AND/OR SALE OF THE GOODS OR SERVICES INFRINGES, OR MISAPPROPRIATES, ANY PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET AND/OR OTHER PROPRIETARY RIGHT. SUCH OBLIGATION SHALL SURVIVE THE ACCEPTANCE OF THE GOODS AND SERVICES AND PAYMENT THEREFORE.

Indemnification:

SUPPLIER WILL, AT ITS EXPENSE, DEFEND AND INDEMNIFY FULTON AND ITS SUBSIDIARIES, AFFILIATES AND AGENTS, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, AND EMPLOYEES, AND FULTON’S CUSTOMERS (COLLECTIVELY “INDEMNITEE(S)”) FROM AND AGAINST REASONABLE LOSS, COST, EXPENSE, DAMAGE, CLAIM, DEMAND OR LIABILITY, INCLUDING REASONABLE ATTORNEY AND PROFESSIONAL FEES AND COSTS AND THE COST OF SETTLEMENT, COMPROMISE, JUDGMENT OR VERDICT INCURRED BY OR DEMANDED OF AN INDEMNITEE ARISING OUT OF, RESULTING FROM OR OCCURRING IN CONNECTION WITH SUPPLIER’S NEGLIGENCE, WILLFUL MISCONDUCT, OR BREACH OF THE TERMS OF THIS PURCHASE ORDER. IN NO EVENT WILL SUPPLIER ENTER INTO ANY SETTLEMENT WITHOUT FULTON’S PRIOR WRITTEN CONSENT, WHICH WILL NOT BE UNREASONABLY WITHHELD. IN NO CASE SHALL EITHER PARTY BE LIABLE FOR ANY DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSSES ARISING IN ANY WAY OUT OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF PROFITS OR LOSS OF BUSINESS, EVEN IF EITHER PARTY IS PROVIDED NOTICE OF SUCH DAMAGES.

Liability Limitation:

Notwithstanding anything else in the purchase order or otherwise, Fulton will not be liable to supplier with respect to the subject matter of the purchase order under any contract, negligence, strict liability, or other legal or equitable theory for any amounts in excess of the amount Fulton paid to supplier under the applicable purchase order.

Remedies:

The remedies available to Fulton shall be cumulative and in addition to any other remedies provided by law or equity.

Audit:

Supplier will maintain detailed records to adequately reflect Supplier’s compliance with the terms of this Purchase Order for at least three (3) years from the last date of delivery. Supplier will permit Fulton and/or its auditors to have access at all reasonable times to Supplier’s books and other pertinent records. Supplier will require each of its subcontractors to do likewise with respect to their books and records. Supplier and each of its subcontractors will also furnish other information as may be needed by Fulton or its audit representatives. Supplier will promptly correct any error or other deficiencies discovered as a result of the audit.

Notices:

All Notices relating to this Purchase Order must be in writing. Notices to the parties will be sent to their respective addresses appearing on the face of the Purchase Order. Notices must be delivered personally, by overnight mail, certified first class mail postage prepaid, facsimile transmission, or sent by email with proof of delivery. A Notice will be deemed given on the date delivered if delivered personally; three business days after being placed in the mail as specified; or upon confirmation receipt that it was transmitted satisfactorily if transmitted by facsimile or email.

Governing Law:

This Order shall be interpreted and governed by the laws of the State of New York, without reference to its choice of law or conflict of law rules. Any controversy or claim arising out of or relating to this Order, or the breach thereof, shall be settled by arbitration in accordance with the Rules of the American Arbitration Association in Syracuse, New York, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. The determination of the arbitrators shall be final and binding.

Assignment:

Supplier will not assign or subcontract any portion of this Purchase Order without the prior written approval of Fulton. Fulton may assign any portion or the entirety of this Purchase Order to its subsidiaries or affiliates, or to any successor without Supplier’s consent and upon written notice to Supplier.

Entire Agreement:

This Purchase Order, together with the attachments, exhibits or supplements, or other terms of Fulton, specifically referenced in this order, constitutes the entire agreement between Supplier and Fulton with respect to the matters contained herein and supersedes all prior oral or written representations and agreements. This Purchase Order and any terms may only be modified in a writing signed by both parties.