Terms and Conditions of Purchase
ALL TRANSACTIONS ARE GOVERNED BY TADANO’S TERMS AND CONDITIONS OF
PURCHASE. ANY PROPOSAL OR DOCUMENT FROM SELLER THAT INCLUDES
DIFFERENT OR ADDITIONAL TERMS THAT VARY FROM ANY OF TADANO’S
STANDARD PURCHASE ORDER TERMS AND CONDITIONS ARE OBJECTED TO AND
DISALLOWED. NOTWITHSTANDING THE FOREGOING, ANY SUCH
COUNTERPROPOSALS BY SELLER SHALL NOT OPERATE AS A REJECTION OF THE
CONTRACT. OF PURCHASE, BUT AS A REJECTION OF THE ADDITIONAL OR
DIFFERENT TERM(S)
1. Acceptance and terms and conditions: Seller accepts this Order and any
amendments with written confirmation within 48 hours of receiving this Order. Even
without such written acknowledgment, Seller’s full or partial performance under this Order
will constitute acceptance of these Terms. By acceptance of this Order, the Seller agrees
to be bound by, and to comply with all these Terms, which include any supplements to it,
and all specifications and other documents referred to in this Order. These Terms apply
to everything listed in this Order and constitute Tadano’s offer to Seller, which Tadano
may revoke at any time prior to Seller’s acceptance. This Order is not an acceptance by
Tadano of any other offer to sell, any quotation, or any proposal. Reference in this Order
to any such offer to sell, quotation, or proposal will not constitute a modification of any of
these Terms. Terms and conditions different from or in addition to these Terms, whether
contained in any acknowledgment of this Order, or with delivery of any goods or services
under this Order, or otherwise, will not be binding on Tadano, whether or not they would
materially alter this Order, and Tadano hereby rejects them. These Terms may be
modified only by a written document signed by duly authorized representatives of Tadano
and Seller.
2. Price: This Order must not be filled at a price higher than shown on this purchase
order. If no price is set forth on this Order, the goods or services will be billed at the price
last quoted or at the prevailing market price, whichever is lower, and, in any event, goods
and services ordered under this Order will not be billed at a higher price than last quoted
or charged without Tadano’s specific written authorization. Tadano will be entitled at all
times to set off any amount owed at any time by Seller or any of its affiliates to Tadano or
any of its affiliates against any amount payable at any time by Tadano in connection with
this Order. No extra charges of any kind will be allowed unless specifically agreed to in
writing by Tadano. All applicable taxes arising out of transactions contemplated by the
Order will be borne by Seller except as otherwise specified by the Parties in writing. If
Seller reduces its prices for such goods and/or services during the term of this Order, Seller shall correspondingly reduce the prices of goods and/or services sold thereafter to
Tadano under this Order.
3. Invoices, payment, and taxes:
(a) Invoices shall be rendered on completion of services or delivery of goods and shall
contain the Purchase Order Number, item number, description of goods or services,
quantities delivered to Tadano, unit prices, date(s) rendered and total purchase price.
Each invoice must refer to one, and only one, purchase order.
(b) Payment shall be made on the terms as set forth by the order from the date of
invoice. If applicable, cash discount periods shall be computed from either the date of
actual delivery of the goods or the date an acceptable invoice is received, whichever is
later. All claims for money due or to become due from Tadano shall be subject to
deduction by Tadano for any setoff or counterclaim arising out of this or any other of
Tadano’s Orders with Seller. (c) Seller recognizes that Tadano will be treated as a tax-
exempt entity, and Tadano will provide Seller with its exemption certificate on request.
All invoices of Seller to Tadano shall exclude taxes that are excludable under Tadano’s
tax-exempt status.
4. Packaging: All goods must be packaged in the manner specified by Tadano and
shipped in the manner and by the route and carrier designated by Tadano. If Tadano
does not specify the manner in which the goods must be packaged, Seller shall
package the goods so as to avoid any damage in transit. If Tadano does not specify the
manner of shipment, route, or carrier, Seller shall ship the goods in a commercially
reasonable manner at the lowest possible transportation rates, consistent with Seller’s
obligation to meet the delivery schedule set forth in this Order.
5. Inspection: Unless otherwise agreed, all goods and services will be subject to
inspection and test by Tadano at all times and places, including the period of manufacture
and in any event prior to final acceptance. Final acceptance or rejection of the goods or
services will be made as promptly as practical after delivery except as otherwise provided
in this Order, but failure to inspect and accept or reject goods or services or failure to
detect defects by inspection, will neither relieve Seller from responsibility for such goods
or services as are not in accordance with this Order nor impose liabilities on Tadano for
them. Tadano’s payment for the goods shall not constitute its acceptance of the goods.
Goods rejected and goods supplied more than quantities ordered may be returned to the
Seller at Seller’s expense. Payment, if any, made for any goods rejected hereunder shall
be promptly refunded by Seller not to exceed thirty (30) days. The seller will provide and
maintain an inspection and process control system acceptable to Tadano covering the
goods and services ordered. Records of all inspection work by Seller will be kept complete
and available to Tadano during the performance of this Order and for ten (10) years after
Seller’s completion of this Order. If any of the goods or services are found at any time to
be defective in material or workmanship, or otherwise not in conformity with the
requirements of this Order, including any applicable drawings and specifications, then
Tadano, in addition to such other rights and remedies it may have by contract or by law
or equity, at its sole discretion may reject and return such goods at Seller’s expense,
require Seller to inspect the goods and remove nonconforming goods and/or require
Seller to replace nonconforming goods or services with conforming goods or services. If
Seller fails to make the necessary inspection, removal, and replacement in a time and
manner satisfactory to Tadano, Tadano may at its option inspect and sort the goods;
Seller will pay any related costs.
6. Warranties: Seller represents and warrants that (a) all goods and services are free of
any claim of any nature by any third person and that Seller will convey clear title to
Tadano, (b) all services are performed in a manner customary and acceptable in the
industry and in accordance with generally accepted standards, are free from all defects,
are fit for the particular purposes for which they are acquired, and are provided in strict
accordance with the specifications or other requirements (including performance
specifications) approved or adopted by Tadano, (c) all goods sold will be of
merchantable quality, free from all defects in design, workmanship and materials, and fit
for the particular purposes for which they are purchased and that the goods and
services are provided in strict accordance with the specifications, samples, drawings,
designs or other requirements (including performance specifications) approved or
adopted by Tadano, (d) the prices for the goods or services sold to Tadano under this
Order are not less favorable than those currently extended to any other customer for the
same or similar goods and/or services in equal or lesser quantities, (e) it does not
utilize, and that its suppliers and vendors do not utilize, any forced labor in any of its
manufacturing processing and the provision of any and all goods (whether finished
items or any component parts) hereunder are in full accordance and compliance with
U.S. standards and regulations regarding human trafficking, conflict minerals, and other
prohibited sourcing practices, and (f) after undertaking a reasonable sourcing inquiry
prior to delivery to Tadano, (i) any and all goods provided to Tadano hereunder do not
contain substances or chemicals that violate applicable environmental regulations, (ii)
each chemical substance sold hereunder has been reported to the U.S. Environmental
Protection Agency if and as required by the Toxic Substances Control Act and
regulations, for inclusion in the inventory of chemical substances compiled by the EPA,
and (iii) Seller has provided all necessary and mandated environmental and safety
warnings and disclosures to Tadano regarding the composition and use of Seller’s
products and to the extent applicable to Seller’s goods has expressly instructed Tadano
to provide any applicable, specific downstream warnings if and as mandated by
applicable law, including but not limited to California’s Proposition 65 and similar
chemical component and sourcing regulations. Tadano’s inspection, test, acceptance,
or use of the goods shall not affect Seller’s obligations under these warranties. Seller
shall replace or correct, at Tadano’s option and at Seller’s cost, defects of any goods
not conforming to these warranties. If Seller fails to correct defects in or replace
nonconforming goods within ten (10) days from the date Tadano notifies Seller of the
defect or defects, Tadano may, on ten (10) days prior written notice to Seller, either (i)
make such corrections or replace such goods and charge Seller for all costs incurred by
Tadano, or (ii) revoke its acceptance of the goods in which event Seller shall be
obligated to refund the purchase price and make all necessary arrangements, at Seller’s
cost, for the return of the goods to Seller. All warranties of Seller herein or that are
implied by law shall survive any inspection, delivery, acceptance, or payment by
Tadano. Any attempt by Seller to limit, disclaim, or restrict these warranties or any
remedies of Tadano, by acknowledgment or otherwise, in accepting or performing this
Order, will be null, void, and ineffective without Tadano’s written consent.
7. Limitation of liability: Tadano’s aggregate liability arising from or relating to
this order is limited to the amount paid by Tadano for the goods and/or services.
To the maximum extent allowable under applicable law, Tadano shall not be liable
under this order for any special, incidental, consequential, indirect, or punitive
damages including, without limitation, lost revenues, lost profits, loss of use, loss
of time, inconvenience, lost business opportunities, lost sales, damage to good
will or reputation, or lost data, even if Tadano has been advised of the possibility
of such damages.
8. Changes: At all times Tadano will have the right to make changes to this Order,
including changes to drawings, designs, configurations, specifications, quantities,
methods of shipment or packing and delivery schedules or location of delivery. If any
such changes cause an increase or decrease in the cost of or the time required for the
performance of any work under this Order, an equitable adjustment will be made in the
contract price or delivery schedule, or both, and this Order will be modified in writing
accordingly. Nothing in this Section, including any disagreement with Tadano as to any
claimed adjustment, will excuse Seller from proceeding with this Order as changed. Any
claim by the Seller for adjustment under this Section 8 must be in a detailed writing and
delivered to Tadano within five (5) days after the date Seller receives notification of
change. Any change will be authorized only by a duly executed amendment to this
Order. Information, such as technical information or guidance provided to Seller by
representatives of Tadano will not be construed as a change within the meaning of this
Section.
9. Compliance with laws: Seller represents and warrants that it is in compliance with
and all goods and/or services supplied hereunder have been produced or provided in
compliance with the applicable provisions of all federal, state, or local laws or
ordinances and all related lawful orders, rules and regulations. The seller shall comply
with any provisions, representations, or agreements, or contractual clauses required to
be included or incorporated by reference or operation of law in any Order. The seller
shall be required to obtain and pay for any license, permit, inspection or listing by any
public body or certification organization required in connection with the manufacture,
performance, completion, or delivery of any good and/or service.
10. Confidential or proprietary information: Notwithstanding any document marking
to the contrary, any knowledge or information that the Seller has disclosed or may later
disclose to Tadano, and which in any way relates to the goods or services covered by
this Order will not, unless otherwise specifically agreed to in writing by Tadano, be
deemed to be confidential or proprietary information, and will be acquired by Tadano,
free from any restrictions. The seller will not transmit to Tadano any sensitive personal
information, including, but not limited to, identified health information, financial
information, or identifiable information of like sensitivity. Seller will keep confidential any
technical, process, economic, or other information derived from drawings, specifications
and other data furnished by Tadano in connection with this Order (in whatever form or
format) and will not disclose, divulge, export, or use, directly or indirectly, such
information for the benefit of any other party without obtaining Tadano’s prior written
consent. Except as required for the efficient performance of this Order, Seller will not
use such information or make copies or permit copies to be made of such drawings,
specifications, or other data without the prior written consent of Tadano. If any
reproduction is made with prior consent, notice will be provided. Upon completion or
termination of this Order, Seller will promptly return to Tadano all materials incorporating
any such information and any copies, except for one record copy. Seller agrees that no
acknowledgment or other information concerning this Order and the goods or services
provided will be made public by Seller without the prior written agreement of Tadano.
11. Work on Tadano’s premises: If Seller’s work under this Order requires Seller to be
on the premises of Tadano or at Tadano’s direction, Seller will take all necessary
precautions to prevent any injury to persons or damage to property, including following
any rules, procedures, or other requirements of Tadano.
12. Insurance: Seller will maintain Comprehensive General Liability (including
Contractual Liability coverage insuring the liabilities assumed in these Terms),
Automobile Liability and Employers’ Liability insurance with limits as reasonably
required by Tadano, as well as appropriate Workers’ Compensation insurance as will
protect Seller from all claims under any applicable workers’ compensation and
occupational disease acts. Annually or upon renewal, the seller will furnish to Tadano a
Certificate of Insurance completed by its insurance carrier(s) certifying that the required
insurance coverage is in effect, with waiver of subrogation, naming Tadano as an
additional insured, and containing a covenant that such coverage and will not be
canceled or materially changed until ten (10) days after prior written notice has been
delivered to Tadano.
13. Termination: Tadano may terminate all or any part of this order for convenience at
any time by written notice to the seller. Upon such termination, Tadano’s liability will be
limited to reasonable termination charges mutually agreed by Seller and Tadano,
provided that Seller must specify and validate any proposed charges in writing within
fifteen (15) days after termination. This Order shall terminate immediately, without
notice, if Seller becomes insolvent or the subject of any proceeding under the laws
relating to bankruptcy or the relief of debtors or is in breach of this Agreement. Further,
this Agreement is subject to termination upon Seller’s failure to perform as agreed.
14. Performance Assurance: In the event reasonable grounds for insecurity arise, in
Tadano’s sole discretion, with respect to Seller’s performance hereunder, Tadano may
in writing demand adequate assurance of due performance. Until satisfactory
assurance is received Tadano may (if commercially reasonable) suspend any further
performance with Seller without penalty and may seek substitute performance from
alternate sources.
15. Quality: Seller agrees to adhere to Tadano’s technical, quality, reliability, and other
specifications. The seller agrees to comply with the specifications as defined by
Tadano’s TMC Supplier Quality Manual. Tadano reserves the right to cancel any or all
purchase orders due to repeated quality failures.
16. Miscellaneous: (a) Transportation: All the prices are established as F.O.B. Seller
and/or Origin Dock, Freight Prepaid and added to invoice as a distinct line item
(“Prepaid and Add”), unless otherwise specifically provided on the front of this Order.
Title and risk of loss shall not pass to Tadano until delivery of the goods to the location
designated on the face of this Order and acceptance by Tadano. If Tadano rightfully
rejects the goods, receives a non-conforming tender, or revokes its acceptance, risk of
loss and title shall be deemed to have remained with Seller. The responsibility for
charges for return freight will be assumed by Seller. No charges for unauthorized
transportation will be allowed. Any unauthorized shipment, which will result in excess
transportation charges, must be fully prepaid by the Seller. Seller will not declare any
value on such materials shipped via United Parcel Service, Rail Express, Air Express,
Air Freight or Parcel Post. Seller will release rail or truck shipments at the lowest
released valuation permitted in the governing tariff or classification.
(b) Anticipation of delivery schedule: Unless otherwise agreed in writing, Seller will not
make material commitments or production arrangements in excess of the amount or in
advance of the time necessary to meet Tadano’s delivery schedule. Goods shipped to
Tadano in advance of schedule may be returned to the Seller at Seller’s expense.
(c) Seller’s inventory: Tadano will have no obligation to request quotations or place
Orders with Seller, both of which will be in Tadano’s sole discretion. Tadano acting in its
sole discretion will determine the actual quantity of goods or services to be purchased.
The quantity of goods or services, if any, specified in forecasts supplied by Tadano from
time to time, or otherwise, is an estimate only and provided for informational purposes
only. Seller bears sole responsibility for managing Seller’s raw material, work in
process, storage, and inventory, and Tadano will have no liability with respect thereto
(whether upon termination of this Order or otherwise) other than in connection with
termination as provided in Section 13.
(d) Force majeure: Tadano may delay delivery and/or acceptance, at Tadano’s option,
occasioned by causes beyond its control.
(e) Publicity: Seller will not use Tadano’s name or logo in publicity, advertising, or similar
activity, except with Tadano’s prior written consent. Seller will not disclose the existence
of this Order or any of its respective terms to any third party without Tadano’s prior
written consent.
(f) Assignment: Seller may not assign this Order or any of Seller’s obligations hereunder
without Tadano’s prior written consent.
(g) Documentation: It is agreed that all standard technical documentation and other
literature necessary for the proper use of the goods or services will be provided to
Tadano with the goods or services, unless otherwise directed by Tadano, and its cost is
included in the price.
(h) Choice of Law and Dispute resolution: This Order and performance hereunder shall
be construed, and the respective rights and duties of the Parties shall be determined in
accordance with the laws of the state of Tennessee, without giving effect to that state’s
principles of conflicts of laws. Disputes arising under this Agreement will be resolved by
the Parties through good faith negotiations in the ordinary course of business. Any
dispute not so resolved will be submitted to mediation, and if the dispute has not been
resolved, the dispute shall be submitted for binding arbitration, at the written request of
either party. Mediation and arbitration shall be held in Nashville, Tennessee.
(i) Severability: If any provision of this Order shall be held or deemed to be or shall, in
fact, be illegal, inoperative, or unenforceable, this provision shall not affect any other
provision or provisions contained in this Order.
(j) Entire agreement: Provided that there is no written agreement, duly executed by both
Parties, applying to the transaction, this Order, with such documents as are expressly
incorporated by reference, is intended by the Parties as a final expression of their
agreement with respect to such terms as are included in it, and is intended also as a
complete and exclusive statement of the terms of their agreement. No course of prior
dealings between the Parties and no usage of the trade will be relevant to determine the
meaning of this agreement even though the accepting or acquiescing Party has
knowledge of the nature of the performance and opportunity for objection.
