Purchase Order Standard Terms & Conditions
This Purchase Order is an offer to “Supplier” from Heartland Water Technology, Inc. (the “Buyer”) to contract on the terms set forth herein, and such offer expressly limits acceptance by Supplier to the terms set forth herein. Any additional or different terms proposed by Supplier are specifically rejected, unless otherwise expressly agreed to in a writing signed by an authorized representative of Buyer.
This Purchase Order, together with these terms and conditions, and any attachments and exhibits, specifications, proposals, drawings, notes, instructions and other information, whether physically attached or incorporated by reference (each a “Purchase Order”), constitute the entire agreement between Buyer and Supplier regarding the products or services to be provided to Buyer by Supplier pursuant to a Purchase Order. The Purchase Order shall govern over any standard terms and conditions published by Supplier or included in any proposal, whether or not attached to this Purchase Order.
Section 1. Offer And Acceptance of This Purchase Order
1.1 This Purchase Order is only an offer to enter into a contract. Buyer may revoke, amend or modify this offer at any time prior to Supplier’s acceptance. Any of the following acts constitutes Supplier’s acceptance of this Purchase Order and all terms and conditions herein: (a) Supplier’s acknowledgement of this Purchase Order, (b) Supplier’s commencement of performance or delivery of any Goods ordered under this Purchase Order, (c) Supplier’s commencement of performance of the Services ordered under this Purchase Order, or (c) Supplier’s acceptance of any payment by Buyer hereunder.
1.2 In the event of goods: This Purchase Order shall specify the goods and services being purchased from Supplier (collectively, the “Goods”), quantities, purchase prices, payment terms and shipping instructions and delivery date(s). In the event of services: This Purchase Order shall specify the services being purchased from Supplier (collectively, the “Services”), including without limitation, the scope of such Services, the identify of Supplier’s personnel who will be performing the Services, the payment terms and performance date(s). If there are any inconsistencies between the terms and conditions stated herein and the terms found on the face of a Purchase Order, the terms of the Purchase Order will govern.
Section 2. Deliveries, Time
2.1 Time is of the essence of this Purchase Order. If specified delivery dates or performance dates cannot be met, Supplier shall notify Buyer promptly of Supplier’s best alternative proposed delivery date or performance date, which Buyer may accept or reject. In the event Buyer has incurred actual damages as a result of a delivery or performance delay within Supplier’s control, Supplier shall either reimburse Buyer for such costs or provide Buyer with a credit on the purchase price for such costs. If delivery of the Goods or performance of the Services is delayed beyond the time indicated in this Purchase Order for any reason including, without limitation, Supplier’s insolvency, bankruptcy or assignment for the benefit of creditors, Buyer reserves the right without liability (in addition to its other rights and remedies) to cancel this order by written or facsimile notice, or verbal notice confirmed in writing (which notice shall be effective when received by or communicated to Supplier) as to any of the Goods not shipped or Services not performed. Supplier shall notify Buyer at the time of shipping of the Goods, together with a copy of the bill of lading or shipping document and the packing list applicable hereto.
Section 3. Price & Payment
3.1 All prices shall be as stated in this Purchase Order and are firm. Payment will not be made for any Goods produced for Buyer in excess of the prices/values of this Order except as specifically authorized by this Purchase Order or by written agreement between Buyer and Supplier. Payment will not be made for any Services performed for Buyer in excess of the prices/values of this Order except as specifically authorized by this Purchase Order or by written agreement between Buyer and Supplier. All applicable federal, state, local and excise taxes, duties, charges, and freight/shipping costs as applicable shall be stated separately on Supplier’s invoice and shall not be included in the price of the Goods or Services unless agreed by Buyer in writing. Buyer may provide Supplier with a tax exemption certificate(s) where applicable.
3.2 Unless otherwise provided in this Purchase Order, payment terms shall be net forty-five (45) days from Buyer’s receipt of Supplier’s invoice or by Buyer taking possession of the Goods/Services as specified in this Order, whichever is later. Any amount owed to Supplier by Buyer or any of Buyer’s affiliates shall be subject to deduction for any set-off, counterclaim or indemnification right arising out of this or any other agreement with Supplier and Buyer or any of Buyer’s affiliates.
Section 4. Quality Assurance
4.1 Supplier shall implement and/or continue to implement and maintain such quality assurance standards as are reasonably necessary to provide to Buyer Goods that conform to the product specifications (if any), Services that conform to Buyer’s instructions, and warranties so as to meet the quality standards of Buyer or any other standards agreed to between the parties. Supplier shall notify Buyer immediately, in writing, of any quality problems that it discovers on any Goods or Services delivered to Buyer. Supplier shall provide competent personnel to assist in the prompt identification and resolution of any performance problems with the Goods or Services.
4.2 Supplier is responsible for performing any inspections or testing of Goods or Services required of Supplier by this Purchase Order, as part of the specifications on Buyer’s drawings or as otherwise supplied to Supplier and incorporated into this Order in writing. Supplier will comply with all requirements unless relieved in writing by Buyer and will provide data to Buyer in a timely manner. Buyer shall have the right, prior to, during or after the manufacture and shipment of products, to inspect and review the manufacturing, measurement and data collection operations and procedures of Supplier during normal business hours for the purpose of determining compliance with the requirements of this Purchase Order. During such inspection and review, Supplier shall provide Buyer with reasonable assistance without charge. Buyer agrees that all information obtained during such reviews shall be considered Supplier’s Confidential Information as defined below.
4.3 Supplier is responsible for performing the Services or providing the Goods in compliance with the provisions of (i) all applicable federal, state and local laws, regulations, rules and ordinances (collectively, “Laws”) applicable to the Goods or Services including, without limitation, any fair labor and occupational health and safety Laws; and (ii) all applicable rules, procedures and policies of Buyer’s Customer. Supplier shall, following Buyer’s reasonable request, certify such compliance to Buyer in writing.
Section 5. Changes, Acceptance
5.1 Prior to shipment of Goods or performance of Services specified in an Order, Buyer may, by written notice to Supplier, make changes in specifications, designs, method of packing or shipment, quantity ordered, destinations and delivery schedules. No change, modification or revision of this Purchase Order by Supplier shall be binding upon Buyer unless in writing and signed by Buyer’s duly authorized representative.
5.2 Supplier acknowledges that changes in a Good’s design, whether or not said changes impact the form, fit or function of such product as specified by Buyer’s specifications or in this Order, have the potential to impact the performance of Buyer’s end product in cases where Supplier’s product is intended to be incorporated into such end product. Supplier agrees not to make changes to the product, or its manufacturing or inspection process, whether or not such changes impact the form, fit, or function of the product as specified by Buyer’s specifications or in this Order or its internal design, without advance written notice to Buyer and written acceptance of the proposed change by Buyer in advance of product delivery.
5.3 All Goods delivered and Services performed hereunder are subject to inspection and acceptance at Buyer’s premises notwithstanding prior payment or inspection at source or point of delivery. Payment for Goods or Services, or transfer of title to and risk of loss with respect to the Goods, shall not constitute acceptance thereof by Buyer or a waiver of any of Buyer’s rights or remedies hereunder or at law or in equity. Acceptance of any Goods or Services shall not alter or affect the warranties of Supplier. Supplier shall only tender Goods to Buyer that conform to all requirements of this Purchase Order. Buyer may, with respect to any Goods or Services that do not conform in any respect to the Order: (i) reject all or a portion of such nonconforming Goods or Services; (ii) accept all or a portion of such nonconforming Goods or Services with a price reduction for the cost of repair or the diminution of value; or (iii) accept any conforming Goods or Services and reject the rest.
5.4 With respect to rejected nonconforming Goods or Services, Buyer may at its election and at Supplier’s risk and expense (i) hold nonconforming products for Supplier, or (ii) return nonconforming products to Supplier for, at Buyer’s option, either (a) full credit or refund or (b) replacement products or services to be received or performed within a commercially reasonable period of time following notice of nonconformity. Title to such rejected products returned to Supplier shall transfer to Supplier upon such delivery and such products shall not be replaced by Supplier except upon written instructions from Buyer. Products returned to Buyer hereunder shall be shipped at Supplier’s expense and risk of loss.
5.5 Supplier shall be liable for Buyer’s actual costs, expenses and damages related to or arising from nonconforming Goods or Services, including but not limited to labor and other costs related to transportation of products, expediting, removal, disassembly, failure analysis, fault isolation, assembly, reinstallation, reinspection, retrofit, and any and all other such corrective action costs incurred by Buyer.
5.6 Acceptance, payment, use or resale of the Goods by Buyer shall not release Supplier of any Supplier’s obligations, representations or warranties hereunder. Payment for any Goods or Services shall not be deemed an acceptance thereof.
Section 6. Cancellation
6.1 Buyer may, by written notice to Supplier, cancel the whole or any portion of this Purchase Order in the event of (i) bankruptcy or insolvency proceedings involving Supplier, (ii) any assignment for the benefit of Supplier’s creditors, or (iii) Supplier’s breach of any provision contained herein. In such an instance, Supplier shall be liable to Buyer for any and all expenses, costs, and damages incurred by Buyer, including without limitation increased re-procurement costs, requalification costs, and other non-recurring costs.
6.2 Buyer may cancel any order for convenience at any time, in whole or in part, prior to shipment or prior to performance upon written notice to Supplier. In the event of cancellation for convenience, Buyer and Supplier shall negotiate reasonable compensation to Supplier for the actual and reasonable expenses incurred by Supplier, up to the termination date, for any finished Goods, Services performed, work in process or raw materials purchased solely for the account of Buyer; provided that Supplier substantiates such expenses in a manner reasonably satisfactory to Buyer and has used reasonable efforts to mitigate such expenses by, among other things, returning Goods to Supplier’s suppliers, selling to other third parties or otherwise utilizing such finished Goods, work in process or raw materials. Due to the sometimes proprietary nature of the materials purchased for or manufactured to Buyer’s specifications, written authorization must be obtained before selling any such materials to third parties.
6.3 Buyer shall not be responsible for any lost profits or consequential or special damages incurred by Supplier in connection with such cancellation. In order to receive compensation, Supplier’s termination claim must be submitted within ninety (90) days from the effective date of the termination.
Section 7. Warranties
7.1 As to Goods: In addition to any other express or implied warranties, Supplier represents and warrants that the Goods shall, for a period of eighteen (18) months from the date of receipt of Goods or twelve (12) months from installation, whichever occurs first (unless otherwise specified in this Purchase Order), or longer if Supplier’s standard warranty conditions offer a longer term, (i) be merchantable and fit for their intended purpose; (ii) be free from defects including without limitation in design, materials and workmanship, labeling and packaging;; and (iii) conform to Buyer’s specifications, drawings, and descriptions, and approved samples (if any).
7.2 Supplier further represents and warrants that at the time of sale and title transfer the Goods shall be new and free from any liens or other encumbrances and shall conform to and be produced in conformity with all applicable federal, state and local statutes, rules and regulations. Supplier represents and warrants that the Goods and their sale, resale, distribution or other use do not and will not infringe any patent, copyright, trade mark, trade secret or other proprietary or intellectual property rights; provided that this representation and warranty shall not apply to the extent such infringement is the direct result of Supplier’s strict adherence to detailed written design specifications furnished by Buyer to Supplier.
7.3 As to Services: In addition to any other express or implied warranties, Supplier represents and warrants that the Services shall, for a period of twelve (12) months from performance (i) be merchantable and fit for their intended purpose; (ii) be free from defects; and (iii) conform to Buyer’s instructions and specifications.
7.4 These warranties shall survive any delivery, inspection, acceptance, payment or resale of the Goods or performance of the Services and shall extend to Buyer’s customers and any end user customers. With respect to Goods: In the event of any breach of warranty, Buyer may return any Goods not conforming to their applicable warranties, and Supplier shall, at Buyer’s option, replace such Goods or refund their purchase price to Buyer. With respect to Services: In the event of any breach of warranty, Supplier shall, at Buyer’s option, redo the Services or refund their purchase price to Buyer. In addition (regarding Goods or Services), Supplier shall be liable for all expenses incurred by Buyer as a result of a breach of any warranties set forth herein, including, without limitation, labor and other costs related to transportation of Goods, expediting, removal, disassembly, failure analysis, fault isolation, assembly, reinstallation, reinspection, retrofit, and any and all other such corrective action costs incurred by Buyer and all expenses incurred by Buyer in recalling such Goods from Buyer’s distributors or customers or related to the redelivery of conforming products, labor and other costs related to the Services, and any and all other such corrective action costs incurred by Buyer and all expenses incurred by Buyer in connection therewith.
Section 8. Intellectual Property Rights
8.1. Supplier warrants that the Goods sold to Buyer or Services performed for Buyer under this Purchase Order have been fabricated and/or performed in accordance with the specifications provided to it by Buyer. Any tools, dies, molds, patterns, jigs, masks and other equipment and materials, including intellectual works such as custom software code, part and/or tooling drawings, and the like, furnished under this Purchase Order by Buyer to Supplier or paid for by Buyer, directly or indirectly, and any replacements, shall be and remain Buyer’s property. Supplier shall safely store such property, shall permanently and plainly identify such property as Buyer’s property and shall not use such property except in filling this or other Purchase Orders for Buyer. All such property shall be held at Supplier’s risk and shall be returned promptly to Buyer or Buyer’s designee upon the earlier of Buyer’s request or the termination or completion of this Purchase Order. Supplier shall replace any such property of Buyer that is lost, damaged or destroyed while in Supplier’s custody.
8.2 Buyer represents that the designs for Goods purchased by Buyer under this Purchase Order do not infringe upon or constitute an unauthorized use of any patent, trade secret, copyright or other intellectual property right of any third party, and Buyer agrees to defend at Buyer’s expense, all claims, suits, actions or proceedings, in law or equity, against Supplier, its successors and assigns, for actual or alleged infringement or unauthorized use of any such patent, copyright, trade secret or other intellectual property right resulting from or arising out of the fabrication of the Goods.
8.3 Unless otherwise agreed in writing, all drawings and specifications and any other property, furnished to Supplier by Buyer or and all drawings and specifications developed by Supplier for use in the performance of this Purchase Order shall be and remain the sole property of Buyer, and considered to be Confidential Information of Buyer under this Purchase Order.
8.4. Supplier hereby agrees that all ideas, discoveries, improvements, know-how and inventions which it or its employees or contractors conceive, make or develop in the course of performing its obligations under this Purchase Order, including without limitation the Goods to be delivered under this Purchase Order and any related original works of authorship (collectively to be referred to as “Inventions”), shall be the sole and exclusive property of Buyer. Without limiting the foregoing, Supplier also acknowledges that all Inventions which relate to Buyer’s business and which are protectable by copyright are “works made for hire” pursuant to the United States Copyright Act (17 U.S.C. Section 101). Supplier hereby assigns to Buyer all of its right, title and interest in and to all such Inventions and hereby agrees to maintain and furnish to Buyer complete and current records of all such Inventions.
8.5. Supplier hereby agrees that it will, and will cause its employees to, fully cooperate with Buyer, its attorneys and agents, at Buyer’s expense, in the preparation and filing of all papers and other documents as may be required to perfect and protect Buyer’s rights in and to any such Inventions.
Section 9. Protection of Confidential Information
9.1. “Confidential Information” means any information provided before, on or after the effective date of this Purchase Order by Buyer to Supplier, in whatever form that would reasonably be expected to be considered proprietary or confidential, including, without limitation, any information relating to the Buyer’s or Buyer’s Customer’s business, customers, financial condition, operations, sales or marketing information, technical information, inventions, designs, processes, manuals, product or service concepts, advertising methods, pricing policies, financial information, employee-related information, ideas and concepts, research and development, studies, reports, contracts, agreements, compilations, databases, intellectual property or any information derived therefrom.
9.2. “Confidential Information” excludes any information that: (i) is or comes into the public domain other than as a result of a wrongful disclosure by Supplier or its employees or representatives; (ii) was in Supplier’s possession or known to it prior to receipt from Buyer at any time (provided that Supplier did not obtain such information through improper means); (iii) becomes available to Supplier on a non-confidential basis from a source which is not to the Supplier’s knowledge prohibited from disclosing such information; or (iv) is developed independently by the Supplier without use or reference to Buyer’s Confidential information.
9.3. Supplier may use Confidential Information only for the purpose of providing the Goods or performing the Services for Buyer under this Purchase Order, and for no other purpose.
9.4. Supplier will not disclose the Confidential Information to any third party without Buyer’s express and prior written consent. That said, Supplier may disclose Confidential Information to its employees, provided that they understand the confidentiality use and disclosure restrictions contained in this Purchase Order and Supplier will be liable for any breach of these confidentiality provisions by such employees.
9.5. This obligation of Supplier to protect Buyer’s Confidential Information shall continue for a period of three (3) years from the date of this Purchase Order.
Section 10. Indemnification
10.1. Supplier shall indemnify, hold harmless, and at Buyer’s request, defend Buyer, its successors, assigns, affiliates, officers, directors, customers, advisors agents and employees, against all claims, liabilities, damages, losses and expenses, including attorneys’ fees and cost of suit, arising out of: (i) any claim relating to the death or injury to any person or persons or any damage to property resulting from any Goods or Services sold or provided by Supplier, including, without limitation, the manufacture, packaging, sale, use, or advertisement of any products, design or manufacturing defects, failure to warn, and the failure of any Goods or Services to comply with their specifications and warranties; (ii) any claim based on the negligence or willful misconduct of Supplier or any of Supplier’s agents, subcontractors, employees or anyone acting on behalf of Supplier; (iii) any claim for any nonpayment of applicable license fee, tariff or duty arising in connection with the subject matter of this Purchase Order and not expressly agreed to be payable by Buyer; (iv) any failure by Supplier to fully comply with any applicable federal, state or local law, rule or regulation; (v) any failure by Supplier to fully comply with the representations, warranties and obligations under this Purchase Order; and (vii) any claim alleging that any Good or Service infringes a patent, copyright, trademark, trade secret, intellectual property right or other proprietary right. Supplier shall not settle any suit or claim without Buyer’s prior written approval, such approval not to be unreasonably withheld. Supplier’s obligation to indemnify, hold harmless and defend Buyer under the terms of this Section 10 is independent of and in addition to Supplier’s obligation to procure and maintain insurance as required in Section 11 below.
Section 11. Insurance
11.1. Supplier shall maintain with an insurance company commercial general liability insurance in the minimum amount of $2,000,000 per occurrence with an aggregate of $2,000,000 for product liability, bodily injury (including death) and property damage. The Supplier shall maintain property coverage, for full replacement cost value, for any property of the Buyer in the Supplier’s care, custody or control. The insurance policy shall include Buyer as an additional insured, shall state that such insurance is primary insurance as regards any other insurance carried by Buyer, and shall include a waiver of subrogation in favor of Buyer and its parent, subsidiaries, and affiliates.
Section 12. Taxes
12.1 Except as otherwise provided, the prices stated do not include sales, use, excise or similar taxes applicable to the sale of Goods. All such taxes and charges shall be shown separately on Supplier’s invoice.
Section 13. Assignment
13.1 Supplier shall not delegate any duties nor assign any rights or claims under this Purchase Order without the express prior written consent of Buyer. Any assignment or delegation made without Buyer’s consent shall be null and void.
Section 14. Remedies
14.1 No remedy provided herein shall be deemed exclusive of any other remedy available at law or equity. All claims for monies due or to become due from Buyer shall be subject to deduction by Buyer for set off or counterclaim arising out of this or any other of Buyer’s Purchase Orders to Supplier.
14.2 Supplier acknowledges that monetary damages will not be a sufficient remedy for unauthorized disclosure or misuse of Confidential Information. Therefore, in the event of a breach of the confidentiality restrictions contained in this Purchase Order or threat thereof, Buyer will be entitled, without waiving any other rights or remedies, to such injunctive or other equitable relief as may be deemed proper by a court of competent jurisdiction. Such remedy shall not be Buyer’s exclusive remedy for any breach or threatened breach of the confidentiality provisions of this Purchase Order but shall be in addition to all other rights and remedies available at law or in equity.
Section 15. Governing Law
15.1 This Purchase Order and the acceptance of it shall, as provided herein, constitute a contract made in, and to be governed in all respects by the laws of the State of Delaware.
Section 16. Non-Circumvention
16.1 Supplier agrees that it will not solicit, or contract directly with Buyer’s Customer or any of its affiliates for substantially the same services as the Services being provided by Supplier for Buyer under this Purchase Order without Buyer’s prior written consent.
Section 17. Notices
17.1 Any notice required or otherwise given pursuant to this Purchase Order shall be in writing and shall be hand delivered, mailed certified mail, return receipt requested, postage prepaid or by recognized delivery service. Any notice to Buyer shall be addressed as follows: Heartland Water Technology, Inc., 831 Park Avenue, Suite A, Murfreesboro, Tennessee 37129, Attention: Legal Department. Any notices to Supplier shall be directed to the address of Supplier shown on the Purchase Order.
Section 18. Order of Precedence
18.1 In the event of any conflict or inconsistency between these Terms and Conditions and the terms of any overarching agreement between the parties, including but not limited to a Master Services Agreement (MSA), Frame Agreement, or similar governing contract, the terms of the overarching agreement shall take precedence and control, unless expressly stated otherwise in writing by both parties.
Section 19. Adherence to Supplier Code of Conduct
19.1 Compliance and Audits. At Heartland our reputation for conducting business in a lawful and ethical manner is important to our continued success, and it is our policy to comply with all applicable United States laws against corruption, as well as any applicable laws in other jurisdictions in which we may conduct business. We expect our Suppliers to adhere to the same standards.
19.1.1 General Compliance: Suppliers must comply with all applicable local, national, and international laws and regulations.
19.1.2 Audits & Inspections: Heartland reserves the right to conduct audits or inspections to verify compliance with this code. Suppliers must cooperate and provide requested documentation.
19.1.3 Corrective Actions & Termination: Failure to comply with this Code may result in corrective actions, contract termination, or legal consequences.
19.2 Ethical Business Practices. We are committed to conducting business with integrity and transparency.
19.2.1 Prohibition of Bribery: Suppliers must not engage in any form of bribery, including offering, giving, receiving, or soliciting anything of value to influence business decisions.
19.2.2 Fair Competition & Antitrust: Suppliers must engage in fair business practices, avoiding price-fixing, collusion, or other anticompetitive behavior.
19.2.3 Conflicts of Interest: Suppliers should disclose any potential conflicts of interest with Heartland employees, including personal relationships or financial interests.
19.3 Conflict Minerals. We are dedicated to ensuring that our products do not contain conflict minerals that finance armed conflict.
19.3.1 Source Responsibly: Suppliers must ensure that the minerals used in their products are sourced responsibly and do not contribute to human rights abuses.
19.3.2 Due Diligence: Suppliers must conduct due diligence on the source and chain of custody of conflict minerals and provide documentation upon request.
19.3.3 Compliance: Suppliers must comply with all relevant laws and regulations regarding conflict minerals.
19.4 Respecting Human Rights. We are committed to enforcing labor and human rights.
19.4.1 Child Labor and Forced Labor: It is expected that our business and all affiliated partners also commit to conducting operations and business practices in a manner consistent with international law, including the elimination of child labor and forced labor. Suppliers must maintain accurate records of the age of all employees and provide verification upon request. If child labor or forced labor is found, suppliers must take immediate steps to remediate the situation in accordance with our guidelines and local laws.
19.4.2 Wages and Working Hours: Suppliers must comply with minimum wage laws, overtime regulations, and ensure fair working conditions.
19.4.3 Freedom of Association: Suppliers must respect employees’ rights to organize, bargain collectively, or join trade unions without retaliation.
19.5 Environmental, Health, and Safety. We promote and provide a safe, secure and healthy workplace for all employees and contractors. Our ultimate goal is to give our employees and all associated businesses a healthy and accident-free workplace.
19.5.1 Risk Mitigation: To mitigate work-related risks, we ask that our suppliers and contractors comply with relevant occupational health and safety rules and regulations and establish company policies that seek to further reduce the occurrence of accidents.
19.5.2 Whistleblower Protections: We also expect our suppliers to empower their employees with the responsibility to express any health or safety concerns they may have regarding their work environment without retaliation.
19.5.3 Sustainable Sourcing: Suppliers should adopt responsible sourcing practices for raw materials and minimize environmental impact.
19.5.4 Carbon Footprint Reduction: Suppliers should actively work toward reducing emissions, waste, and energy consumption.
19.6 By adhering to these principles, our Suppliers help us maintain the highest standards of ethical conduct and social responsibility. We expect all Suppliers to comply with this policy and to ensure that their own suppliers and subcontractors do the same. Please note that the foregoing is not an exhaustive list of all expectations, obligations, or compliance requirements. For further details on specific requirements, reporting procedures, and additional expectations, please refer to our Supplier Handbook, available upon request.