Procurement Terms and Conditions

 1.       Acceptance – Agreement. Seller’s commencement of work on the goods subject to this purchase order or shipment of such goods, whichever occurs first, shall be deemed acceptance of this purchase order and the express terms contained herein.   Any additional or different terms or any attempt by Seller as set forth in Seller’s business forms or website is hereby rejected and deemed null and void, except where the terms clarify commercial terms such as the description, quantity, price or delivery schedule of the goods.

2.       Termination. ITW reserves the right to terminate this order or any part hereof for its sole convenience. In the event of such termination, Seller shall immediately stop all work, and shall immediately cause any of its suppliers or subcontractors to cease such work. Seller shall be paid actual direct costs resulting from termination for all custom products which Seller cannot sell to a third party. ITW may also terminate this order or any part hereof for cause in the event of any default by the Seller or if the Seller fails to comply with any of the terms and conditions of this offer. In the event of termination for cause, ITW shall not be liable to Seller for any amount, and Seller shall be liable to ITW for any and all damages arising out of the default.

3.       Proprietary Information – Confidentiality – Advertising. Seller shall consider all information furnished by ITW to be confidential and shall not disclose any such information to any other person, or use such information itself for any purpose other than performing this contract without ITW’s written consent. This paragraph shall also apply to drawings, specifications, or other documents prepared by Seller or the like for ITW (“Work for Hire”) in connection with this order. Seller shall not disclose or publish the fact that ITW has a contractual relationship with Seller without ITW’s written consent.

4.       Ownership.  All drawings, know-how, designs, confidential information, and the like disclosed to Seller by ITW and all rights therein will remain the property of ITW and will be kept confidential by Seller in accordance with these terms and conditions.  The Seller shall have no claim to, nor ownership interest in, any information provided or communicated by ITW, and such information, in whatever form and any copies thereof, shall be promptly returned to ITW upon written request from ITW.  Seller acknowledges that no license or rights of any sort are granted to Seller under this Agreement in respect of any rights in ITW’s information, developments, devices, processes, or other intellectual property arising therefrom.  Should the Seller perform development work in producing the material covered by this Purchase Order, ITW shall receive a full and complete, worldwide, non-exclusive, royalty-free license to make, have made, use or sell any intellectual property developed through such development work.

5.       Tooling and Equipment.  All tool, dies or any equipment (“Equipment”) furnished to Seller by ITW, or specifically paid for by ITW, shall be ITW’s property and it is understood and agreed that these devices may be inspected and/or removed by ITW at any time ITW desires to do so without additional cost.  This equipment shall be used only for purposes of manufacture of products to be sold to ITW.  Seller shall bear any taxes assessed against such equipment and the full cost of preparing and crating for shipment as directed by ITW upon completion of such orders as ITW may give.  This equipment shall be kept free of liens and encumbrances at all times, without expense to ITW.  This equipment shall not be removed from Seller’s plant without ITW’s consent.  Payment for invoices for such devices are subject to ITW’s written approval of samples from such devices.  Production samples must have written approval before any production shipments are made unless a written exception to this rule is submitted by ITW’s authorized representative.

6.       Infringement and Indemnification.  The Seller agrees to defend, indemnify and hold ITW, its successors, assigns, agents and users of its products and processes harmless against any claims, costs, damages, liability and expenses resulting from actual or alleged patent, trademark, or copyright infringement, misappropriation of confidential information, or violation of any other intellectual property right, domestic or foreign, in the manufacture, use or disposition of any article or material supplied hereunder.

7.       Warranty. Seller expressly warrants that all goods or services furnished under this agreement shall conform to all contract specifications and appropriate standards, that the goods will be new, and will be free from defects in material or workmanship. Seller warrants that all such goods or services will conform to any statements made on the containers or labels or advertisements for such goods or services, and that any goods will be adequately contained, packaged, and marked and labeled in accordance with ITW’s requirements and all laws relating thereto. Seller warrants that all goods or services furnished hereunder will be merchantable, and will be safe and appropriate for the purpose for which goods or services of that kind are normally used. Seller warrants that such goods or services will be fit for such particular purpose. Seller warrants that goods or services furnished will conform in all respects to samples. Inspection, test, acceptance or use of the goods or services furnished hereunder shall not affect the Seller’s obligation under this warranty, and such warranties shall survive inspection, test, acceptance and use. Seller’s warranty shall run to ITW, its successors, assigns and customers, and users of products sold by ITW. In addition to all other remedies, Seller agrees to replace or correct defects of any goods or services not conforming to the foregoing warranty promptly, without expense to ITW, when notified of such nonconformity. In the event of failure of Seller to correct defects in or replace nonconforming goods or services promptly, ITW may repair or replace such goods and services and charge Seller for the cost incurred by ITW.  Seller shall be liable for incidental or consequential damages resulting from failure to conform to any contract specifications.

8.       Price and Price Warranty. Seller may not revise prices without ITW’s written consent. Seller warrants that the prices for the articles sold ITW hereunder are not less favorable than those extended to any other customer for the same or similar articles in similar quantities. Seller warrants that prices shown on this purchase order shall be complete, and no additional charges of any type shall be added without ITW’s express written consent.

9.       Delivery. Unless otherwise agreed by ITW, all prices and sales by Seller are F.O.B. ITW’s facility, or as designated in each separate purchase order issued by ITW, and title and risk of loss to all Products shall pass to ITW upon delivery by Seller to ITW’s facility.  Time is of the essence in shipping all Products.  If, at any time, Seller fails to meet the delivery date, Seller is required to notify ITW within (3) three business days of receiving the purchase order.  If Seller fails to deliver the Products by the delivery date, the price to be paid by ITW for the entire purchase order will be reduced by an amount equal to one percent (1%) of the original price for each business day that the failure continues.  If the delivery delay persists for longer than fifteen (15) business days, ITW is entitled to the price reduction as well as any other rights and remedies available to it under this Agreement, by law, equity or otherwise, including the cancellation of any such purchase order without penalty, fee, or any other charges assessed by Seller. If in order to comply with ITW’s required delivery date it becomes necessary for Seller to ship by a more expensive way than specified in this purchase order, any increased costs shall be paid for by Seller unless the necessity for such rerouting or expedited handling has been caused solely by ITW.

10.     Limitation on ITW’s Liability – Statute of Limitations. In no event shall ITW be liable for anticipated profits or for incidental or consequential damages. ITW’s liability on any claim of any kind for any loss or damage arising out of or in connection with or resulting from this agreement or from the performance or breach thereof shall in no case exceed the price allocable to the goods or services or unit thereof, which gives rise to the claim. Any action resulting from any breach on the part of ITW as to the goods or services delivered hereunder must be commenced within one year after the cause of action has accrued.

11.     Compliance with Laws.         Seller guarantees that all goods delivered or services performed (including production of such goods) by Seller pursuant to this order will comply with all applicable federal, state and local laws, ordinances and regulations.

12.     Force Majeure.  ITW may delay delivery or acceptance occasioned by causes beyond its control. Seller shall hold such goods at the direction of ITW and shall deliver them when the cause affecting the delay has been removed. ITW shall be responsible only for Seller’s direct additional costs in holding the goods or delaying performance of this agreement at ITW’s request. Causes beyond ITW’s control shall include but are not limited to government action or failure of the government to act where such action is required, fire, or unusually severe weather.

13.     Insurance. Seller shall maintain all necessary insurance coverage, including public liability and Workers’ Compensation insurance. Seller shall indemnify and save harmless and defend ITW from any and all claims or liabilities arising out of the work covered by this paragraph.

14.     Indemnification. Seller shall defend, indemnify and hold harmless ITW against all damages, claims or liabilities and expenses (including attorneys’ fees) arising out of or resulting in any way from any defect in the goods or services purchased hereunder, or from any act or omission of Seller, its agents, employees or subcontractors. This indemnification shall be in addition to the warranty obligations of Seller.

15.     Changes. ITW shall have the right at any time to make changes in drawings, designs, specifications, materials, packaging, time and place of delivery and method of transportation. If any such changes cause an increase or decrease in the cost, or the time required for the performance, an equitable adjustment shall be made and this agreement shall be modified in writing accordingly. Seller agrees to accept any such changes subject to this paragraph.  Seller agrees to notify ITW of any changes in the goods, and any changes affecting the design or manufacturing of the goods, changes of suppliers, changes in required certifications, or changes of manufacturing facility location.

16.     Inspection/Testing. Payment for the goods delivered hereunder shall not constitute acceptance thereof. ITW shall have the right to inspect such goods and to reject any or all of said goods which are in ITW’s judgment defective or nonconforming.  Goods rejected and goods supplied in excess of quantities called for herein may be returned to Seller at its expense and, in addition to ITW’s other rights, ITW may charge Seller all expenses of unpacking, examining, repacking and reshipping such goods. In the event ITW receives goods whose defects or nonconformities are not apparent on examination, ITW reserves the right to require replacement, as well as payment of damages. Nothing contained in this purchase order shall relieve in any way the Seller from the obligation of testing, inspection and quality control.

17.     General. This purchase order, and any documents referred to on the face hereof, constitute the entire agreement between the parties. No part of this order may be assigned or subcontracted without prior written approval of ITW.  All claims for money due or to become due from ITW shall be subject to deduction or set-off by the ITW by reason of any counterclaim arising out of this or any other transaction with Seller.  ITW’s failure to insist on performance of any of the terms or conditions herein or to exercise any right or privilege or ITW’s waiver of any breach hereunder shall not thereafter waive any other terms, conditions, or privileges, whether of the same or similar type.  This agreement shall be governed and interpreted by the State of Illinois, U.S.A., and not the United National Convention for International Sale of Goods.  All disputes involving this agreement shall be adjudicated in Chicago, Illinois, U.S.A.  Each party waives, to the fullest extent permitted by law, the right to trial by jury in any legal proceedings arising out of or relating to this Agreement.

18.     Regulatory  ITW Heartland, An Illinois Tool Works Company, complies with contractor obligations under the Office of Contract Compliance Programs.  U.S. Department of Labor Section 60-250 and Section 60-741, and request that all contractors and subcontractors providing supplies and services comply with the same rules and regulations.   In addition, as a supplier of goods and services to ITW, acceptance of this purchase order allow “Right to access” to the facility to witness or verify, by ITW, or our customer, or regulatory authorities, to applicable areas of all facilities, at any level in the supply chain involved in the order, and to all applicable records. the manufacturing or processing of the product.

19.     Notification of Nonconforming Material.  The Seller, upon learning of any quality related issues that may affect its’ performance to this purchase order, whether pre-shipment or post-shipment, shall immediately notify ITW Heartland of the issues within no less than two (2) days.  Notification shall be in writing.  Seller must obtain ITW approval before dispositioning  nonconforming product “use as is.”

20.    Prevent Transactions with Denied Persons/Debarred Parties/SDN:
To ensure compliance of U.S. export laws, ITW Heartland does not conduct any business transaction with the “Denied Persons List” published by the U.S. Department of Commerce, the “Denied Parties List” published by the Department of State and the “Specially Designated Nationals” list published by the Department of Treasury, Foreign Assets Control. ITW Heartland expects all suppliers and its subcontractors to comply with these laws as well.
Supplier agrees to include this requirement in lower-tier Purchase Orders and/or subcontracts. (You may view the U.S. Government web sites for each of the Agencies noted above to access their lists).

21.      Record Retention. Quality records not supplied to ITW Heartland must be kept for a minimum of (10) years from the date of shipment, unless a longer period is otherwise specified. Quality records include the following, not exhaustive, list: Test Reports, Inspection Reports, Route Cards/Travelers, Raw Material Certifications, FAIRs, and Calibration Records. This data shall be made available to ITW Heartland upon request, at no charge. Records shall be appropriately identified and stored to prevent deterioration or damage and protected from unauthorized access.