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This order (hereinafter “order”) is for the purchase and sale of goods and services described on the face of this order (hereinafter “goods") issued by Hach Company (hereinafter “Buyer”). Acceptance of this order will be limited to the terms and conditions contained herein and incorporated herein by reference. This order will be deemed accepted upon the return of the acknowledgment copy of this order or the commencement of performance by Seller. Buyer rejects any additional or inconsistent terms and conditions offered by Seller at any time, whether or not such terms or conditions materially alter the order and irrespective of Buyer's acceptance of or payment for Seller's goods or services. Any reference to Seller’s quotation, bid or proposal does not imply acceptance of any term, condition, or instruction contained in such document. Trade custom and/or trade usage is superseded by this order and will not be applied in the interpretation of this order. These terms and conditions together with the specifications, drawings, or other documents referred to on the face of the order or incorporated by reference to the part number of the goods and which form the basis for the specifications, designs and/or quality requirements of the goods constitute the entire agreement between the parties and no change to or modification of this order will be binding upon Buyer unless in writing and signed by an authorized representative of Buyer. In the event of any ambiguities, express conflicts or discrepancies in the specifications, drawings, or other documents which are a part of this order, Seller will immediately submit the matter to Buyer for its determination and will comply with the determination of Buyer in such matter.
Title to property furnished to Seller by Buyer or paid for by Buyer under this order, including without limitation drawings, patterns, tools, dies and any other goods made in support of this order, as well as any replacements thereof, (all hereinafter referred to as "Property") will be vested in Buyer with the right to demand possession at any time. Seller will physically identify and mark the Property as Buyer’s Property. Seller will use said Property only in the performance of work for Buyer. Seller will bear the risk of loss of all Property while in Seller's custody or control and while in the custody or control of Seller's suppliers. All Property is subject to removal and return at Buyer's written request, in which event Seller, at Buyer's expense, will prepare such Property for shipment and deliver them to Buyer in the same condition as originally received by Seller, reasonable wear and tear excepted. Seller will maintain all Property in good condition and repair or replace them to the extent necessary for performance of this order. Seller will establish and maintain a system to control, protect, preserve and maintain all Property. Buyer will have the right to enter Seller's premises at all reasonable times to inspect Property and Seller's records with respect thereto. Buyer does not warrant any aspect of the Property that it furnishes and all goods delivered by Seller must be in strict accordance with the requirements of this order. Upon completion or termination of this order, Seller will retain all Property at its expense until disposition directions are received from Buyer. Seller will pay personal property taxes on all goods in its possession. Manufacturing location and processing may not be changed without Buyer’s written consent.
Unless otherwise specified on the face of the order, goods must be shipped F.O.B point of destination. Itemized packing lists will accompany each shipment. Buyer’s count will be accepted as final and conclusive on shipments not accompanied by Seller’s itemized packing list. No charge will be allowed for packing, shipment, or handling unless otherwise stated in the order. Delivery of the goods and related data and/or documentation and/or performance of required services in accordance with the schedule are a material requirement of this order. TIME IS OF THE ESSENCE. Seller will not, without Buyer's prior written consent, manufacture or procure materials in advance of Seller's reasonable flow time. Seller will promptly notify Buyer of any actual or anticipated delay of delivery and take all reasonable steps to avoid or end delay without additional cost to Buyer. Seller will, at its expense, ship by express or air shipment or by the most expeditious way if the delivery schedule is endangered for any reason other than Buyer's fault. Buyer reserves the right to reject all or any part of any delivery that varies from the quantity authorized by Buyer for shipment. All goods will be packaged in accordance with Buyer's instructions or, if none are specified, in accordance with good commercial practice in a manner sufficient to ensure arrival in an undamaged condition. Goods shipped in advance of Buyer's delivery schedule may be returned or stored at Seller's expense. Seller will give notice of shipment to Buyer at the time of delivery of any shipment of goods to a carrier for transportation. Title and risk of loss to goods pass to Buyer at the F.O.B. point of destination unless otherwise specified on the face of this order. Notwithstanding the foregoing, title and risk of loss to goods subject to a consignment stock agreement pass upon release of the goods from the consignment stock.
Notwithstanding (i) payment, (ii) passage of title, or (iii) prior inspection or test, all goods are subject to final inspection and acceptance or rejection by Buyer at Buyer’s facility. At all reasonable times, including the period of manufacture, Buyer, its representatives, its customers, and/or representatives of applicable regulatory agencies may inspect and/or test the goods to be furnished hereunder at the places where the work is being performed, including those of the Seller's suppliers, and Seller will provide, without additional charge, reasonable facilities and assistance for safe and convenient inspection and test. Buyer may inspect 100% or a sample of all goods or any lot of goods at Buyer's option, and Buyer has the right to reject all or any portion of the goods or lot of goods if any such inspection reveals them to be, in Buyer's sole opinion, defective or nonconforming. Seller will provide and maintain a quality control, test and inspection system acceptable to Buyer and its customers, if required. Seller will keep complete records of all inspection work and will make them available to Buyer and its customers during the performance hereof and for ten (10) years after final payment by Buyer. Buyer is not required to inspect goods delivered, and no inspection or failure to inspect will reduce or alter Seller’s obligations under this order. Seller is responsible for the performance of all activities affecting the goods quality and delivery, including those of its sub-suppliers.
Buyer may, at any time, by a written change order, without notice to any sureties, make changes in any one or more of the following: (i) drawings, designs, specifications, where the goods to be furnished are to be specially manufactured for the Buyer in accordance therewith; (ii) method of shipment or packing; (iii) place or time of inspection, delivery, or acceptance; (iv) the quantity and/or type of services ordered, (v) the work or service schedules, and (vi) the amount of any Buyer furnished property. If Seller believes that any such change affects the price or delivery for such goods or services, then Seller will so notify Buyer in writing, with adequate supporting documentation, within ten (10) calendar days after receipt of such direction. Buyer and Seller will mutually agree, in writing, upon an equitable adjustment in the price and/or delivery date to reflect the effect of such change within ten (10) calendar days of Seller’s notification. If Buyer and Seller are unable to agree on the adjustment, Buyer will make a good faith adjustment which will be binding on Seller. Seller’s request for any adjustments will be deemed waived unless submitted in writing within such ten (10) calendar days after Seller receives direction to make such changes. If Seller considers that the conduct, statement or direction of any of Buyer’s employees constitutes a change hereunder, Seller will notify Buyer and take no action on the perceived change pending written approval of Buyer. Only Buyer has authority to approve a change. Any change made by Seller without such written approval will be deemed voluntary by Seller and not compensable in the cost of or time required for performance. Nothing in this Article excuses Seller from proceeding with performance of this order as changed including the parties’ failure to agree on the equitable adjustment. Notwithstanding the above or any other provision of this order, the Seller hereby agrees that no changes to the goods that may be required in order to meet the specified performance requirements of this order entitle the Seller to any adjustment in either price or delivery.
During performance of this order, Seller will not make any changes in the design of goods to be furnished or the manufacturing processes by Seller under this order without advance written notification to and written approval of the Buyer. The above requirement applies whether or not there is a cost impact associated with the change and regardless of the type of change involved, including product improvements.
Buyer may, at any time by written order, require Seller to stop all or any part of the work under this order for a period of up to one hundred eighty (180) days. Immediately upon receipt of such stop work order, Seller will comply with its terms and take all reasonable steps to minimize the incurrence of costs allocable to the work stoppage. At any time during such period, Buyer may, in whole or in part, either cancel the stop work order or terminate the work in accordance with subparagraph A or B of the "Cancellation" Article of this order (see Article 9, below). To the extent the stop work order is canceled or expires, Seller will resume work. If a stop work order is the sole and exclusive cause of a material change in cost or delivery, an adjustment will be made in the price (excluding profit) or the delivery schedule, or both and this order modified accordingly; provided, however, that no adjustment in price or delivery will be made under this Article if, (i) the work would have been otherwise interrupted or delayed, or (ii) such adjustment is available or expressly excluded under any other provision of this order. No claim for adjustment will be allowed unless submitted to Buyer in writing in a specified amount within twenty (20) days after the work is terminated or the stop work order expires or is canceled, whichever first occurs. In no event will Seller be entitled to any loss of prospective profits, contributions to overhead, or any incidental, consequential or other damages because of such suspension or withdrawal of suspension.
Neither party will be in default for any delay or failure to perform hereunder due to causes beyond its control and without its fault or negligence; provided, that any delay or failure to perform caused by the default of a supplier of the Seller at any lower-tier will be excused only if it is beyond the control of both Seller and such supplier and without the fault or negligence of either and the goods to be furnished are not obtainable from other sources in sufficient time to permit Seller to meet the delivery schedule; and provided further, that Seller furnishes prompt written notice to Buyer of the occurrence of any such cause that will or may delay Seller's performance. If delivery of any item is delayed by any excusable delay for more than three (3) months, Buyer may, without any additional extension, cancel all or part of any order with respect to the delayed product, and exercise any of its remedies in accordance with Article 9.A., provided, however, that the Buyer will not be entitled to monetary damages or specific performance where Seller’s breach is the result of an Excusable Delay.
Seller warrants that none of the goods furnished under this order are surplus, used, remanufactured or reconditioned or of such age or so deteriorated as to impair the usefulness or safety thereof, unless otherwise specifically stated on the face of this order. Seller warrants that each price for goods sold to Buyer under this order is no less favorable than that extended during the term of this order to any other customer for the same or like goods in equal or less quantities on similar terms and conditions. Unless otherwise provided on the face of this order, THE PRICES APPEARING HEREIN INCLUDE ALL PACKAGING, CRATING AND FEDERAL, STATE AND LOCAL TAXES, IF APPLICABLE, AND ARE FIRM FOR THE DELIVERY OR “VALID TO” PERIOD SHOWN.
Payment periods and cash discount periods will be computed from either the date of delivery or acceptance of the goods ordered or the date of receipt of correct and proper invoices prepared in accordance with the terms of the order or the date Buyer takes title if the goods are consigned, whichever is later. The payment date will be delayed on a day-for-day basis for any item that is delivered later than called for by Buyer’s schedule. Unless otherwise stated on the face of this order, payment terms are NET 120 Days.
Buyer may set-off any amount due from Seller, or its affiliates, to Buyer or its affiliates, whether or not under this order, from any amounts due to Seller or its affiliates under this order.
Final payment to Seller operates as a release of any and all claims, actions, and liens against the Buyer on account of the order and Seller agrees to save harmless the Buyer from future claims, actions, and liens. Application for final payment must be accompanied by Waivers and Releases of Liens for all subcontractors, if required by Buyer.
Seller indemnifies and holds harmless Buyer from any and all damages, costs, including legal fees, losses, and liabilities resulting from a suit or proceeding from infringement of any patent, trademark or copyright by reason of the sale or use of any item sold to Buyer hereunder, and from reasonable expenses incurred by Buyer in defense of such suit or proceeding to the extent Seller does not undertake the defense thereof; provided, that Seller is promptly notified of any such suit and Buyer offers Seller full and exclusive control of the defense of such suit or proceeding when products of Seller only are involved therein or the right to participate in the defense of such suit or proceeding when products other than those of Seller are also involved therein; except that this indemnity shall not extend to infringement resulting solely from Seller’s compliance with Buyer’s detailed design drawings, processes or formulas. In the event of an injunction or restraining order, Seller will, at its own expense, either procure for Buyer the right to continue to sell and use the item, or replace or modify the item so that it becomes non-infringing. Seller will also indemnify Buyer’s customers and agents for such infringement if and to the extent that Buyer has agreed so to indemnify them, but to no greater extent than Seller has indemnified Buyer herein and under the same conditions as set forth herein.
Seller indemnifies and holds harmless Buyer, its directors, officers, employees, agents and invitees from and against all liability, demands, claims, losses, costs, damages and expenses, including but not limited to attorneys’ fees, by reason or on account of property damage, death or personal injury of whatsoever nature or kind arising out of, as a result of, or in connection with the performance of this order that is occasioned by the actions or omissions of Seller or its subcontractors or suppliers of any tier. Seller will maintain and carry liability insurance which includes but is not limited to commercial general liability (including product liability and for services to be performed, completed operations liability) in a sum no less than $5 million, automobile liability in a sum no less than $5 million, workmen’s compensation in an amount no less than the applicable statutory minimum requirement and employer’s liability in an amount of no less than $1 million, with internationally recognized insurance carriers. Seller will, if requested by Buyer, furnish certificates of insurance from its carrier(s) on the foregoing coverages, which will identify Buyer as an additional insured and provide that such coverage will not be changed without thirty (30) days advance written notification to Buyer from the carrier(s). Dollar amounts may be converted to local currency equivalents.
Buyer conducts its business in strict compliance with applicable laws, rules, and regulations with honesty and integrity and with a strong commitment to the highest standards of health, safety and business ethics. In addition, it is the policy of Buyer to enter into representation or Supplier agreements only with companies which have a demonstrated record of, and commitment to, the highest ethical standards. Seller agrees that Seller will, at all times, adhere to the standards set forth in Danaher’s "Code of Business Conduct" (hereinafter "Code") and will fully comply and take all necessary steps to assist Buyer in complying with the Code as well as any other customary standards of business conduct prescribed by law or regulation. (A copy of the Code may be obtained at Danaher Suppliers). Seller will, at all times, fully comply with all rules, laws and regulations pertaining to entertainment or providing gratuities. Buyer expects Seller to “Speak Up!” if aware of any violation of law, regulation or of the Code in relation to Buyer’s business. The Danaher Integrity & Compliance Program Helpline portal is available www.danaherintegrity.com to report violations online or by phone. While on the premises of Buyer, Seller and its employees will comply with all applicable safety and health laws, regulations and ordinances and with Buyer’s safety and plant rules.
Whenever Seller has knowledge that any actual or potential labor dispute is delaying or threatens to delay the timely performance of this order, Seller will immediately give notice thereof, including all relevant information with respect thereto, to Buyer. Seller will include this paragraph in each lower-tier Subcontract under this order.
It is understood and agreed that Seller and/or its employees engaged in the performance of this order by the Seller, are not employees of Buyer and are not entitled to Buyer employee benefits or privileges or any payment from Buyer (other than as expressly provided for in this order) and the Seller will pay the salaries and expenses, and applicable taxes, including Social Security and unemployment of said employees. Seller will also pay any expenses normally paid by an employer in connection with its employees assigned to Buyer. The Seller is and will be deemed to be an Independent Contractor at all times during its performance of the work specified in this order.
Seller will not, without the prior written consent of Buyer, make any release of information concerning this order or any other information related to the Buyer (other than to Seller's employees and subcontractors that is required for the performance of their duties), including providing copies of this order or identifying the goods sold by Seller to Buyer, nor use the name of Buyer in any advertising or publicity, except as may be necessary to comply with a subpoena or other proper mandatory legal demand.
In the event of any conflict among the provisions of this order, the following order of precedence applies in interpreting this order: (i) the text of Buyer’s order, then (ii) any special or supplemental terms and conditions that Buyer incorporates by reference into the order, then (iii) these Hach Company Purchase Order Terms and Conditions, and finally (iv) other contract documents.
The rights and remedies of Buyer set forth herein are in addition to any other rights and remedies provided in law or equity, including all implied warranties and all of Buyer’s remedies set forth in the Uniform Commercial Code.
No failure by Buyer to assert its rights under any provision of this order, or failure of Seller to perform any provision of this order, is effective as a waiver thereof unless consented to in writing by the Buyer; nor does any such waiver constitute an advance waiver of any other provision or failure to perform.
Any assignment or subcontract by Seller for all or a majority of the materials and/or labor to be supplied by Seller under this order are void unless consented to by Buyer in writing. Buyer may assign this order to one of Buyer’s subsidiaries or affiliates or in connection with the sale or transfer of all or substantially all of the assets of the business to which it pertains.
Headings and captions set forth in this order are for convenience of reference only and are not intended to, nor do they, alter the meaning, content or enforceability of any Article hereof.
In the event any provision of this order is determined to be illegal, invalid, or unenforceable, the validity and enforceability of the remaining provisions of this order will not be affected and, in lieu of such illegal, invalid, or unenforceable provision, there will be added as part of this order one or more provisions as similar in terms as may be legal, valid and enforceable under applicable law.
Articles 1, 2, 5, 9-18 and 20-30 will survive expiration or any cancellation or termination of this Order.