I. INTRODUCTION
Sales to Cosmo Specialty Fibers are subject to the following terms and conditions. “Cosmo Specialty Fibers,” “Cosmo,” “we” or “us” means Cosmo Specialty Fibers, Inc., a Delaware corporation. “Supplier” shall include you and any of your affiliates that sell products or otherwise provide goods or services to us. By accepting our order (either in writing, electronically or via telephone), you accept these terms, unless we have agreed to different terms in writing.
II. PURCHASES
A. Order Acceptance and Acknowledgement. Each Purchase Order (“PO”) shall be deemed accepted by Supplier if any shipment of products is made, performance of services commences or if the PO is acknowledged by Supplier. Supplier will not reject a PO unless it has provided at least thirty (30) days prior written notice to Cosmo that it is unwilling to or will no longer accept a PO after a specified date. All product must meet all specifications provided by Cosmo from time to time. Supplier must use Cosmo’s form of electronic receipt and provide weigh-in/weigh-out calculations if applicable.
B. Prices. Changes to Supplier prices must be communicated to Cosmo at least sixty (60) days prior to the planned effective date. Supplier shall provide the proposed price changes in an electronic excel file that includes the current price, the proposed new price, the percent variance (+/-) between the two prices and rationale substantiating the price change. All price changes must be accepted by Cosmo prior to shipment or invoice of product at the new price in order to be effective for such products.
C. MSDS Documentation and Licensing.
1. All required Material Safety Data Sheet (MSDS) documentation must be supplied to the Safety Compliance Representative at Cosmo’s facility with the initial delivery for all materials so classified by OSHA regulations. MSDS documentation for materials that are provided on a repetitive basis must be updated by Supplier on an annual basis.
2. Supplier shall obtain all licenses and governmental approvals required by applicable laws, rules or regulations necessary for the shipment or delivery of the products sold by Supplier to Cosmo. Supplier shall protect, defend, indemnify and hold Cosmo and its agents, employees, directors, and affiliates harmless from and against any losses arising out of Supplier’s failure to comply with the terms and conditions contained in this paragraph.
D. Age-Sensitive Materials. All materials provided by Supplier to Cosmo that are susceptible to performance degradation over time must be clearly identified on the product packaging and associated shipping paperwork as ‘Age-Sensitive’, along with any suggested expiration dates. Under no circumstances is Supplier to provide Age-Sensitive material that has less than 1 year of remaining shelf-life unless pre-authorized by Cosmo.
E. Payment Terms. Payment of Supplier’s invoice is subject to adjustment for over-shipment, shortage and rejection. Individual invoices must be issued for each shipment applying to a PO unless otherwise negotiated or stated in such PO. Such invoices must state (a) the P.O. number, (b) the quantity of each ordered product shipped, (c) description of each ordered item shipped and (d) price of each ordered item shipped. One copy of each individual invoice must be plainly marked "ORIGINAL." Any applicable sales tax, duty, excise tax, use tax or other similar tax or charge, for which Cosmo is responsible and for which Cosmo has not furnished an exemption certificate must be itemized separately on each invoice.
F. Delivery Terms
1. The delivery of products shall be F.O.B point of delivery at Cosmo’s facility in the State of Washington. Cosmo shall not be responsible for failure or delay in delivery prior to receipt at Cosmo’s facility. Supplier is responsible for filing all freight or shipment claims arising prior to delivery of the products at Cosmo’s facility.
2. Product deliveries shall be completed strictly in accordance with the quantities and schedules specified in the PO. If, at any time, it appears Supplier may not meet the defined delivery schedule, Supplier shall immediately notify Cosmo of the estimated duration of and reasons for any delay. In such event, Supplier shall make every effort to mitigate the delay (or such portion thereof as Cosmo requires) by appropriate methods, including incurring expenditures for overtime and expedited shipment by air or other means of expedited transport. Any costs incurred by Supplier to avoid such delay shall be borne solely by Supplier, unless the delay in delivery arises out of causes beyond the control and without the fault or negligence of Supplier or its subcontractors. The delivery date(s) will not be advanced or delayed without agreement between the parties.
3. Supplier shall pack, mark and ship all goods and supplies in accordance with the requirements of any PO, all applicable transportation regulations and good commercial practice for protection and shipment of the purchased products. Supplier shall secure the transportation service and rates most advantageous to Cosmo as long as procurement thereof shall be consistent with Supplier’s obligations. No adjustments shall be made by Supplier to any applicable transportation or other surcharges unless advance notice is provided to Cosmo in writing. No separate or additional charge shall be payable by Cosmo for containers, crating, boxing, bundling, dunnage, drayage or storage unless specifically stated in a PO. Any expense, damage or liability incurred by Cosmo as a result of improper preservation, packaging, packing, marking or method of shipment shall be reimbursed by Supplier upon demand. A packing list showing order number (and other identifiable demarcations, if applicable) shall be included with each shipment, and each container shall be marked to show the order number. Any transportation charges paid by Supplier for which Supplier is entitled to reimbursement shall be shown on Supplier’s invoice as a separate line item and the receipted freight bill shall be attached thereto.
G. Inspection, Rejection and Remedy of Defects. Cosmo shall have the right to inspect and verify any item furnished pursuant to a PO. Inspection of product by Cosmo after delivery without complaint shall constitute final acceptance, except as regards to latent defects or those that aren’t visible until the product is used during the production process. If Cosmo rejects any goods, Cosmo shall then be relieved of any obligation to pay that portion of any Supplier invoice and shall be entitled to require Supplier to provide replacement goods that comply with the terms of the PO.
H. Loss or Damage Caused by Seller. In the event Supplier, its employees, agents and/or subcontractors enter Cosmo’s premises or those occupied by or under the control of Cosmo in the performance of a PO, Supplier shall fully compensate, indemnify and hold harmless Cosmo, its officers, employees, agents and contractors, for or from damage or injury of any sort to any person or property, any claim, charge, liability, obligation, penalty, damages, costs or expenses (including reasonable attorneys' fees incurred in connection therewith) arising out of or in connection with any act or omission of Supplier, its employees, agents and/or subcontractors on or about such premises. Without in any way limiting the foregoing, Supplier (and its subcontractors at all tiers) shall maintain liability insurance in reasonable limits covering the obligations set forth above and shall maintain proper workmen's compensation insurance covering all employees, and contractors performing a PO. In no event shall a liability policy providing less than $1 million of coverage (per occurrence) be deemed reasonable for purposes of complying with the requirements of this paragraph. All employees, agents and subcontractors of Supplier who enter Cosmo’s facility must be appropriately attired in correct safety and protection equipment. Individuals who fail to wear appropriate equipment will be asked to leave the premise immediately and any products that are not delivered or work that is not performed shall be subject to a restocking fee of either 20% of total PO value or $11,000/hour arising out of the delay of completion of the product and/or service.
I. Notification of Changes. Cosmo must be notified in advance of any proposed changes to Supplier's manufacturing processes, critical process sources, equipment or facilities that may impact the quality, acceptability, reliability or on time delivery of the product(s) provided to Cosmo. This includes any proposed relocations of manufacturing or assembly facilities that include Cosmo products. Any such changes have the potential to negatively impact the flow of acceptable product to Cosmo or Cosmo's customers and must be planned and coordinated between Supplier and Cosmo prior to implementation. Failure to do so may result in termination with ‘Cause' of any PO.
III. RISK OF LOSS AND LIABILITY
A. Risk of Loss. Supplier assumes all risk of loss prior to delivery of the products to Cosmo at Cosmo’s facility in the State of Washington.
B. Default. Should Supplier become insolvent or go into liquidation or have a receiver appointed or otherwise be found to be in such a financial position that it may reasonably be assumed that it will not be able to fulfill its obligations, Cosmo shall have the right to cancel all future orders if Supplier has not, within ten (10) days after notice by Cosmo, furnished a satisfactory guarantee for its fulfillment of its obligations.
C. Indemnification. Supplier shall protect, defend, indemnity and hold Cosmo and its agents, directors, employees and affiliates harmless from any losses, costs, expenses (including attorneys' fees and expenses), claims (including claims of Cosmo’s employees), damages, demands, liabilities, suits, actions, recoveries and judgments of every nature and description (collectively, "losses") experienced by Cosmo arising out of the sale or transportation by Supplier or its designees, agents or employees, whether or not such losses are caused by the negligence (sole or concurrent), and whether or not such losses arise out of strict liability, negligence, warranty or any other cause of action, to the fullest extent permitted by applicable law.
D. Insurance. If you are working onsite; please forward a copy of your latest insurance certificate which needs to include the following:
Cosmo Specialty Fiber is an “additional insured”;
Minimum coverage $1Million for each category, Workman’s Compensation statutory limits
IV. GENERAL
A. Force Majeure. Cosmo and Supplier are excused from performance, delay or failure in performance due to causes beyond such party’s reasonable control, including, without limitation, acts of God, fires, floods, wars, sabotage, accidents, labor unrest or shortages, governmental laws, ordinances, rules and regulations (whether valid or invalid), the inability to obtain materials, equipment, transportation, or any other similar or different contingency that is outside of such party’s reasonable control.
B. Public Releases and Confidentiality. Supplier shall not, without first obtaining the written consent of Cosmo, in any manner advertise or publish the fact that Supplier has furnished or contracted to furnish Cosmo, or disclose any information contained in or connected with a PO to any person or entity other than Supplier and Supplier's agents and subcontractors, except as expressly allowed (if at all) herein, and except as may be required to perform the PO. All details of POs, including prices, specifications, discounts, etc., between Cosmo and Supplier are considered proprietary and confidential information and as such, may be shared only with appropriate Cosmo personnel and guarded against open disclosure, including, without limitation to any third parties.
C. Compliance with Laws. Supplier will ensure that, in the performance of any PO, it will comply with all applicable federal, state and local laws. Supplier also warrants that it is and will continue during the period of performance of any PO to be in full compliance with OSHA, EEOC, Fair Labor Standards Act (FLSA) and the provisions of the Anti-Kickback Act, as amended, 41 U.S.C. 51-54, and shall hold Cosmo harmless from any liability resulting from failure of such compliance. If Cosmo advises Supplier that certain products or goods are being sold by Supplier to Cosmo pursuant to a subcontract or general contract with the federal government of the United States of America or one of its agencies to which the Federal Acquisition Regulations (FAR) apply, Supplier agrees to comply with all flow-through clauses of the Federal Acquisition Regulations required of Supplier under such subcontract or will advise Cosmo of its inability to comply with the FAR prior to accepting or executing such a subcontract.
D. Termination. Cosmo may terminate all or part of any PO for ‘Cause’ (failure to meet performance expectations or other business commitments, or to resolve issues after repeated notification of default) effective ten days following written notice to Supplier. Any such written notice of termination shall specify the cause, effective date and the extent of any such termination. Disposition of liability for remaining inventory or work-in-process will be negotiated between Cosmo and Supplier. Cosmo or Supplier may terminate all or part of a PO for any reason effective thirty days after formal written notice to the other party. Disposition of liability for remaining inventory or work-in-process will be negotiated between Cosmo and Supplier in good faith.
E. Miscellaneous
1. Cosmo expects all employees of Supplier to conduct themselves and associated business transactions with the highest level of honesty, integrity and ethical behavior at all times. Failure to do so may result in grounds for termination of any PO by Cosmo.
2. These terms and conditions shall govern and apply to any purchases made by Cosmo from Supplier, or any division or predecessor thereof, at any time whatsoever, whether past, present or future. In the event that any of these terms and conditions conflict with terms of any other existing or future agreement between Cosmo and Supplier, including, without limitation, any writing submitted at any time by Cosmo to Supplier (whether or not signed by Cosmo), then, in each instance, these terms and conditions shall prevail in all respects, notwithstanding any language in such other agreement to the contrary.
3. These terms and conditions are the entire embodiment of the terms and conditions governing purchases by Cosmo from Supplier and supersede all prior agreements, unless otherwise stated, and may not be altered, supplemented, or amended by the use of any other document unless otherwise agreed to in a written agreement signed by both you and us. No course of action on the part of Cosmo or any of its agents or affiliates shall be deemed to modify these terms and conditions.
4. All PO’s shall be governed by the internal laws of the State of Washington without regard to conflicts of laws provisions. Any action between Supplier and Cosmo may be brought in any jurisdiction in which Cosmo conducts business, at the option of Cosmo.
5. Supplier may not transfer, assign or subcontract its rights or obligations under these terms and conditions without the prior written consent of Cosmo. These terms and conditions shall be binding upon and inure to the benefit of Cosmo and Supplier and their respective permitted successors and assigns.
