Standard Purchase Order Terms and Conditions of Cedar Fair, L.P. and its affiliates
PURCHASE DOCUMENTS. These Standard Purchase Order Terms and Conditions (“Terms and Conditions”) shall govern any purchase orders issued by Cedar Fair, L.P. and its affiliates (“Buyer”). These Terms and Conditions and Buyer’s applicable purchase order are the complete agreement (“Agreement”) between Buyer and the supplier identified in such purchase order (“Supplier”), and constitutes the full understanding of the parties, and the complete and exclusive statement of the terms of their agreement. This Agreement shall be deemed accepted upon: (a) Supplier’s commencement of performance; (b) Supplier’s shipment of any goods specified in the purchase order; and/or (c) any other indication of Supplier’s agreement to the purchase order, whichever occurs first. No other document, understanding or agreement purporting to modify or vary the terms of this Agreement shall be binding unless hereafter made in writing and signed by both parties. Notwithstanding the foregoing, if the parties have mutually executed a master services agreement, purchase supply agreement, or other definitive agreement (“Master Agreement”) that applies to the products and services specified in a purchase order, the terms of such Master Agreement shall prevail over this Agreement to the extent of any inconsistency. For the purposes of this Agreement, any terms, conditions or provisions of any Supplier quotation, confirmation, order acknowledgement, invoice, or other commercial document sent to Buyer are not an agreement that has been “mutually executed” and will not replace, supplement or amend this Agreement in any way.
PROPRIETARY INFORMATION/CONFIDENTIALITY. Supplier shall consider all information furnished by Buyer to be confidential and shall not disclose any such information to any third party, or use such information itself for any purpose other than performing the Agreement, unless Supplier obtains prior written permission of the Buyer to do so. This paragraph shall also apply to all drawings, specifications, or other documents prepared by Supplier in connection with the Agreement. Supplier shall not advertise or publish the fact that Buyer has contracted to purchase goods from the Supplier, nor shall any information relating to any order be disclosed without Buyer’s prior written permission. Unless otherwise agreed to in writing, no information disclosed in any manner or at any time by Supplier to Buyer shall be deemed confidential or proprietary and Supplier shall have no rights against Buyer with respect thereto.
WARRANTY. Supplier expressly warrants that all goods or services furnished under this Agreement shall conform to all specifications and appropriate standards, shall be new, and shall be free from all defects in material or workmanship and shall be merchantable and fit for their intended purpose. Supplier warrants that all services provided will be of good workmanlike quality and free from error or defect. Supplier shall indemnify and save Buyer harmless from any breach of this warranty, and no limitations on Buyer’s remedy in Supplier’s documents shall operate to reduce this indemnification. Supplier shall extend all warranties it receives from its vendors to Buyer. This warranty is in addition to all warranties express or implied in law. All warranties shall survive inspection, testing and acceptance of goods or services by Buyer and expiration or termination of this Agreement. In addition to other remedies available at law or in equity, Buyer may, at its option, return to Supplier for full credit any goods which do not meet the warranties specified herein or required correction or replacement of such goods or services, all at Supplier’s risk and expense. Packing and shipping shall be at Supplier’s cost.
NONCONFORMING GOODS. Supplier agrees to promptly replace or correct any goods or services not conforming to the specifications stated herein when notified of such nonconformity, without expense to Buyer. If Supplier fails to correct defects in or replace nonconforming goods or services promptly, Buyer, after reasonable notice to Supplier, may make such corrections or replace such goods and services and charge Supplier for the cost incurred by Buyer in doing so.
PRICES. All prices are firm unless otherwise agreed to in a writing signed by the Buyer. If price is not shown on the Agreement, the goods and/or services purchased hereunder shall be billed at the price last quoted or paid or the prevailing market price, whichever is lower.
PRICE WARRANTY. Supplier warrants that the prices for goods hereunder are no less favorable than those currently extended to any other customers for the same or similar articles in equal or less quantities, and in the event of any price reduction to other customers, Supplier agrees to reduce the price of goods or services sold hereunder correspondingly. If during the term of the Agreement, Buyer receives an offer from another supplier to supply the goods or services to be supplied hereunder at a lower price than named herein, Supplier shall at its option either (a) meet such lower price, or (b) permit Buyer to purchase from such other source while such lower price is in effect, and the quantity so purchased by the Buyer will be deducted from the quantity covered by the Agreement.
TAXES. Unless otherwise shown on the face of the Agreement, the prices stated in the Agreement include all foreign, federal, state, and local taxes, import duties, license fees, tariffs or other governmental charges, if any, applicable to this Transaction. Any other foreign or domestic taxes or other governmental charges applicable to this transaction shall be for Supplier’s account.
DELIVERY. Time is of the essence in the performance of each of Supplier’s obligations hereunder. If delivery of goods or rendering of services is not completed by the time promised, Buyer reserves the right without liability, in addition to its other rights and remedies, to terminate the Agreement by notice effective when received by Supplier as to items not yet shipped or services not yet rendered and to purchase substitute items or services elsewhere and charge Supplier with any loss incurred. Supplier assumes all risk of loss and damage to the goods until delivery to Buyer and installation at its facility specified on the face of this Order. The term FOB in this Order refers to transportation charges only.
TITLE AND RISK OF LOSS. The risk of loss or damage shall be upon the Supplier, and title shall pass to Buyer free and clear of claims, liens, encumbrances (save Supplier’s right to receive payment therefor) upon delivery to, and acceptance by, Buyer in accordance with all applicable laws and regulations.
SERVICES. If the Agreement requires Supplier to furnish services of any person, Supplier agrees that such person or persons are not employees or agents of Buyer, and Supplier assumes full responsibility for such person’s competence, performance, and compensation and taxes incident thereto.
PACKING. Supplier agrees that each package shipped will be numbered and labeled with the Buyer's order number, part number, contacts, and weight. The package will contain an itemized packing slip and will be properly pre-paid for shipment so as to secure the lowest transportation and insurance rates and to meet the carrier’s requirements unless agreed in writing. No charges will be allowed to the Supplier for packing, breaking, or freight unless stated in writing. Where applicable, Supplier's material must be marked and labeled in accordance with SARA community right-to-know and OSHA hazard communications standards. A current copy of the safety data sheet is to be included with orders, if any changes have occurred since the last shipment.
PROHIBITION ON CONFLICT MINERALS. Reference is made to Section 1502 of the Dodd Frank Wall Street Reform and Consumer Protection Act implementing provisions addressing disclosure of the use of conflict minerals originating from the Democratic Republic of Congo or adjoining countries (the "Regulation"). Supplier represents, warrants, certifies and covenants that the goods supplied in accordance with this P.O. do not contain conflict minerals from the Democratic Republic of Congo or adjoining countries, and if the goods supplied in accordance with this P.O. do contain conflict minerals, such goods are DRC conflict free. Supplier shall be solely responsible and liable for assessing and monitoring its supply chain to ensure compliance with this provision. Supplier shall execute written documentation, including certifications, as Buyer or its customers may reasonably request to confirm and certify compliance with the foregoing. The terms "conflict minerals," "adjoining country," and "DRC conflict free" shall have the meanings assigned such terms in the regulations.
PROOF OF SHIPMENT. Upon request, the Supplier will forward to the Buyer the express receipt of bill of lading, signed by the carrier, as evidence that the shipment has been made.
BUYER'S TRADEMARKS, LOGOS AND ADVERTISING. Buyer's name, trademark and/or logo may not be used by Supplier without Buyer's prior written approval. Supplier will not, without Buyer's prior approval (which approval Buyer may withhold in its discretion), refer to Buyer in any advertising, press release, client list or other promotional or marketing materials.
FORCE MAJEURE. In the event of war (whether declared or not), flood, strike, labor trouble, accident, riot, act of terror, act of governmental authority, acts of God, unusually severe weather or contingencies beyond the reasonable control of Buyer, Buyer shall not be liable to Supplier and the Agreement shall remain unaffected except that Buyer, at its option, may elect either to have the quantities so affected eliminated from the Agreement without liability or to extend the period for delivery of the quantities so affected by the period that the effects thereof persist.
LIMITATION OF LIABILITY. Supplier waives any claim against Buyer for consequential, special or punitive damages allegedly suffered by Supplier, including lost profits and business interruption.
PATENTS. Supplier warrants that all goods supplied hereunder and the use and/or sale of same by Buyer, its customers, agents, successors and assigns, will not infringe any patent, trademark, copyright, trade secret or other intellectual property right owned or controlled by any other corporation, firm or person, and agrees it will, at its own expense, upon receipt of notification to promptly assume full responsibility for defense of any suit or proceeding that may be brought against Buyer or its agents, customers, or other vendors for alleged patent or other intellectual property infringement, as well as for any alleged unfair competition, whether or not, resulting from similarity in design, trademark or appearance of goods, or services furnished hereunder. Supplier further agrees to indemnify Buyer, its affiliated companies, its agents and customers against any and all expenses, losses, including royalties, profits, and damages (including court costs and attorneys’ fees) resulting from any such suit or proceeding, including any settlement. Buyer may be represented by and actively participate in any such suit or proceeding if it so desires.
INSURANCE. If Supplier delivers goods or performs any services within any Buyer facility, Supplier shall maintain insurance coverage as follows: (a) Workers' Compensation with statutory limits or $1,000,000 per accident in the event there is no statutory requirement including Employers' Liability with limits of not less than $ 1,000,000 each accident/$1,000,000 each employee for disease/$1,000,000 policy limit for disease; (b) Commercial General Liability with limits not less than a combined single limit of $1,000,000 each occurrence/$2,000,000 general aggregate/$2,000,000 products & completed operations aggregate. Such insurance shall be written on an occurrence basis on a current Insurance Services Office (ISO) or equivalent form; (c) Business Automobile Liability with limits not less than $1,000,000 combined single limit each accident. Such insurance shall be written on an occurrence basis on a current Insurance Services Office (ISO) or equivalent form; (d) All Risk Equipment Insurance covering all risk of physical damage to equipment owned by or provided by Supplier and brought to an Buyer facility for use by Supplier; and (e) Such insurance can be any combination of primary or umbrella/excess coverage as applicable. Buyer may require Supplier to carry additional insurance limits and/or coverages. Supplier shall provide Buyer with certificates of insurance evidencing all required insurance. Insurance carriers providing said insurance shall be admitted to do business in the state where the goods are to be supplied and shall carry an A.M. Best's rating not less than A-, VIII. All insurance policies hereunder shall (a) name Cedar Fair, L.P. and its affiliates as an additional insured, (b) be primary to any other insurance carried by Buyer which shall be specifically excess to and not contributing therewith; and (c) include a provision waiving the insurer's right of subrogation against Buyer. If requested by Buyer, Supplier shall obtain an endorsement requiring thirty (30) days written notice to Buyer before cancellation or material change in coverage of Supplier's insurance coverage.
INDEMNIFICATION. Supplier shall defend, indemnify and hold harmless Buyer against all damages, claims or liabilities and expenses (including court costs and 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 Supplier, its agents, employees or subcontractors, or from any breach of the Agreement. This indemnification shall be in addition to the warranty obligation of Supplier.
NO WAIVER. Failure of Buyer to insist on strict performance of any of these terms or conditions shall not be considered a continuing waiver of any of the provisions contained herein and shall not constitute a course of dealing which would alter any of the terms contained herein. No waiver by either party in respect of any breach or default or of any right or remedy, and no course of dealing shall be deemed to constitute a continuing waiver of any other breach or default or any other right or remedy, unless such waiver be expressed in writing signed by the party to be bound.
INSPECTION/TESTING. Payments for the goods delivered hereunder shall not constitute acceptance thereof. Buyer shall have the right to inspect such goods and to reject any or all of said goods that are defective or nonconforming. Goods rejected and goods supplied in excess of quantities called for herein may be returned to Supplier at its expense and, in addition to Buyer’s other rights, Buyer may charge Supplier all expenses of unpacking, examining, repackaging and reshipping of such goods. In the event Buyer receives goods whose defects or nonconformity is not apparent on examination, Buyer reserves the right to require replacement, as well as payment of damages. Nothing contained in the Agreement shall relieve in any way Supplier from the obligation of testing, inspection and quality control.
COMPLIANCE WITH LAWS. Supplier agrees to fully observe and comply with all applicable laws, rules, regulations, and orders pertaining to the production, sale, marking, packing, and shipping of the goods and/or services ordered, and upon request Supplier shall furnish Buyer certificates of compliance with such laws, rules, regulations, and orders. To the extent Supplier provides services on Buyer’s property, Supplier also agrees to comply with Buyer’s rules and regulations as may be from time to time published by Buyer, including but not limited to Buyer’s safety procedures, and any and all instructions and/or requests made by Buyer in the regular and routine operation of its business, and understands that failure to do so may result in immediate cancellation without further liability.
ADEQUATE PERFORMANCE. Buyer may terminate this Agreement or any part hereof for cause in the event of any default by Supplier or if Supplier fails to comply with any of the terms and conditions herein. “For cause” includes: late deliveries, deliveries of goods that are defective or that do not conform to the Agreement, and failure to provide Buyer, upon request, of reasonable assurances of future performance. In the event of termination for cause, Buyer shall not be liable to Supplier for any amount, and Supplier shall be liable to Buyer for any and all damages sustained by reason of the default which gave rise to the termination.
SEVERABILITY. If any provision of the Agreement is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, such provision shall be deemed severed from the balance of the Agreement and the validity of the remaining provisions shall not be affected thereby.
HEADINGS. Headings set out in the Agreement are for convenience of reference only, and shall be without substantive meaning.
ASSIGNMENT. The Agreement shall be binding on the successors and assigns of Supplier; provided, however, that Supplier shall not assign the Agreement, in whole or in part, without the prior written consent of Buyer.
GOVERNING LAW. The validity, interpretation, and performance of the Agreement shall be governed and construed in accordance with the laws of the State of Ohio. Supplier submits to the jurisdiction of the state courts and federal courts with jurisdiction over the City of Sandusky, Erie County, in the State of Ohio. If Supplier is not shipping from the United States, the terms of the U.N. Convention on the International Sales of Goods shall not apply to the Agreement. Incoterms shall only apply if expressly stated in the purchase order; otherwise Uniform Commercial Code shipping and delivery terms shall apply as expressed in the purchase order. Notwithstanding the foregoing, in the event the services are being performed for Canada’s Wonderland, this Agreement shall be governed by the laws of the Province of Ontario.
