RMS ENERGY TERMS AND CONDITIONS
These terms (“Terms”) are incorporated in any purchase order (“Order”) for goods and other deliverables (referred to as “Goods”) and services (“Services”) issued by RMS Energy Co., LLC (“RMS”) to the supplier providing the Goods and/or Services identified in that Order (“Seller”), between RMS and Seller (the “Parties”).
No additional or conflicting term in any Seller acknowledgement, invoice, bid, proposal, or other documentation is binding on RMS. All Goods and Services will be delivered to RMS in strict conformance with any packaging, product and/or service standards, specifications, and other requirements provided by RMS or approved in writing by RMS (the “Requirements”).
Unless otherwise stated in the Order, (a) all Goods shipped from a location in the United States to RMS in the United States of America are sold FOB the RMS facility or facilities specified in the applicable Order, (b) all Goods shipped to RMS facilities in the United States from other countries or to RMS facilities in other countries are sold FCA (Incoterms 2010) the location specified in the applicable Order, and (c) if Seller is responsible for shipping Goods, Seller will ship Goods via the most economical route and in a single shipment. Seller will deliver all Goods and Services within the time period stated in the Order, unless RMS specifies a longer, or the Parties agree to a shorter, time period. Seller will make no charge for any packing, crating, storage, insurance, shipping, or delivery expense, unless authorized in the Order. Seller will pay any excess costs due to failure to follow RMS’s shipping instructions. If Seller delivers any Goods amount other than that stated in the Order without RMS’s prior written consent, RMS may return any of that delivery, at Seller’s expense. RMS’s determination of the Goods’ count and weight is conclusive, unless Seller encloses a packing slip stating a different amount. TIME IS OF THE ESSENCE FOR ALL ORDERS.
3. PRICES AND PAYMENT.
Goods and Services will be delivered to RMS for the price stated in the Order. Unless the Order states different payment terms, payments are net 90 days to be paid in United States dollars. RMS’s payments may be adjusted for Seller’s errors, defects or non-compliance with the Order (including these Terms). Each invoice must relate to only one Order, and be issued and dated no earlier than the date on the Goods’ and/or Services’ delivery date. Each Seller invoice and all related documents (such as packaging lists, bills of lading, freight bills and correspondence) must include: (a) Order number; (b) applicable Order line item number(s) and unit of measure; and (c) RMS’s identification number (if provided by RMS). Seller warrants that the prices being paid by RMS are not affected by collusion or any other anti-competitive activity.
4. ORDER CHANGE, SUSPENSION OR CANCELLATION.
4.1 RMS may change an Order by giving electronic notice to Seller prior to shipment of the applicable Goods or performance of the Services. If any Order change causes an adjustment in price or delivery date, the Parties will make an equitable adjustment and modify an Order accordingly, provided that Seller gives RMS notice of that adjustment claim within three business days after receipt of RMS’s Order change notice. RMS may require Seller to suspend all or part of Seller’s performance under an Order for up to twelve consecutive calendar months. Seller will suspend performance and resume performance, as directed by RMS. If any Order suspension causes an adjustment in price, the Parties will make an equitable adjustment and modify an Order accordingly, provided that Seller gives RMS notice of that adjustment claim within three business days after receipt of RMS’s Order suspension notice.
4.2 RMS may cancel an Order, without cause, at any time by electronic or written notice to Seller, but if RMS’s notice of cancellation is issued less than five days prior to a scheduled Goods delivery date or Services performance date, then Seller will be entitled to reimbursement for: (a) if Goods, any unique raw materials that cannot be returned to Seller’s supplier or sold to other Seller customer(s) and are necessary to provide those Goods due on that delivery date; or (b) if Services, the fees for those Services completed prior to the termination and Seller’s actual, out-of-pocket expenses paid to third parties that are not refundable and were reasonably necessary to provide those Services. If Seller fails to comply with all of an Order’s Terms or admits its inability to meet its financial obligations, or it otherwise becomes apparent that Seller will not be able to fulfill its obligations under that Order due to Unavoidable Delay or other cause, then RMS may cancel an Order at any time by electronic or written notice to Seller without any liability of any kind to Seller, in addition to any other legal or equitable remedies RMS may have.
Seller will use a RMS trademark, tradename, or corporate logo (“RMS Mark”) only if required by the Requirements. Seller will, at RMS’s direction, return to RMS or destroy all materials containing a RMS Mark. While Seller is providing Goods and/or Services for RMS and at any time thereafter, Seller will not use RMS’s name or RMS Mark in any manner, including promotional or advertising materials, or otherwise assert affiliation with RMS or a RMS affiliate, except with RMS’s prior written consent in each instance.
6. RMS MATERIAL & RMS EQUIPMENT.
RMS owns any materials RMS provides to Seller, including, without limitation, raw materials, databases, or documents (“RMS Material”) and any tooling or other equipment that RMS provides to Seller or for which RMS reimburses Seller (“RMS Equipment”). Seller authorizes RMS to file UCC financing statements and other documentation without Seller’s signature to acknowledge RMS’s ownership of these items. Seller will not sell, pledge, transfer or remove from Seller’s facility any RMS Material or RMS Equipment. Seller will use all RMS Material and RMS Equipment solely to perform its obligations under Orders and for no other purpose. Seller will not alter any RMS Equipment. Seller will use its best efforts to maintain the security and confidentiality of all RMS Material and RMS Equipment. Seller has all risk of loss or damage to RMS Equipment and RMS Material, and will, at RMS’s request, immediately restore or replace any damaged or lost RMS Equipment or RMS Material with an equivalent item. Promptly on RMS’s request, Seller will return to RMS all RMS Equipment and unused RMS Material in their original condition, except for reasonable wear, with RMS liable only for crating and shipping costs. Seller will maintain all RMS Equipment in a safe and proper condition and indemnify RMS for, and defend it against, all claims arising out of Seller’s use of RMS Equipment. If the Parties establish RMS Material loss allowances, Seller will reimburse RMS for any excess losses, at RMS’s delivered cost to Seller. Seller will inspect RMS Material that will be incorporated into Goods and promptly inform RMS of any non-compliance with the Requirements.
7. WARRANTIES & REMEDIES.
7.1 In addition to all implied and express warranties available under the Uniform Commercial Code (“UCC”) and/or these Terms, Seller warrants that: (a) all Goods and Services will be free from any encumbrance and conform to all Requirements and the applicable Order; (b) all Goods will be without any defect in design (except to the extent designed by RMS), manufacture, processing, materials and workmanship; (c) all Goods will be made or processed, and all Services will be performed, in compliance with all laws applicable to Seller and its business and with sound environmental, health and safety practices consistent with RMS’s Supply Chain Policies.
7.2 In addition to all available remedies, RMS may reject any Goods or Services not meeting Seller’s warranties, and: (a) obtain substitutes and offset, or require Seller to reimburse RMS for, all additional costs associated with the substitutes; or (b) require Seller, at RMS’s option, to either replace the affected Goods or re-perform the affected Services without charge, or to reimburse RMS that Good’s price, plus any RMS Material’s delivered cost, or that Service’s price. RMS may, but is not obligated to, inspect or test Goods and Services at RMS’s premises, Seller’s premises or those of any Seller subcontractor performing under an Order. RMS’s acceptance of delivery, inspection, or payment for any Good or Service does not waive any of Seller’s warranties or other obligations. Seller will use its best efforts to assist RMS in investigation of, and corrective action for, RMS customer complaints related to the Goods and/or Services.
8. COMPLIANCE WITH LAWS & PRODUCT CONTENT.
8.1 Goods, the RMS products into which they are incorporated and Goods packaging (“Goods Packaging”) may need to comply with laws that restrict, regulate or require disclosure of, product content, including but not limited to the European Union’s Directive on the Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment (known as “RoHS”), the European Union’s Regulation 1907/2006 (known as “REACH”) relating to “Substances of Very High Concern (“SVHC’s”), the European Union’s Directive 94/62/EC relating to packaging, the U.S. Lacey Act and other similar laws (“Substance Laws”).
8.2 Seller warrants that all Seller employees, agents, and subcontractors (“Seller Personnel”) performing any of Seller’s obligations under an Order will have employment authorization that complies with all applicable Laws. On RMS’s request, Seller will provide RMS with all documentation and information RMS requires to conduct an export control license assessment relating to Seller Personnel. If RMS determines that an export license is needed for certain Seller Personnel, RMS may, in its discretion, pursue that export license or instruct Seller not to use that Seller Personnel to perform Seller’s obligations under an Order.
8.3 If any Goods will be shipped from another country into the United States, Seller must secure its facilities and all of its shipments made to RMS and RMS designated sites in accordance with then-current U.S. Customs Trade Partnership Against Terrorism (“C-TPAT”) security guidelines. If RMS is the importer of record for specific shipments, Seller must provide RMS and must ensure that its logistics providers also provide RMS all necessary shipping data to satisfy security, notification and other regulatory requirements applicable at the time of delivery, including but not limited to the U.S. Importer Security Filing (“ISF”) requirements. This shipping data must be provided to RMS in sufficient time before Goods are delivered to the carrier to complete the applicable requirements and in the case of ocean freight no less than three business days prior to delivery of Goods to the carrier. Current C-TPAT and ISF requirements can be found on the U.S. Customs and Border Protection website (www.cbp.gov).
8.4 All drawback of duties and rights related to duties paid by Seller when the Goods or any materials or components used in manufacturing Goods are imported by Seller accrue to the exclusive benefit of RMS. Duty drawback rights include without limitation rights accruing from product substitution and rights obtained from Seller’s subcontractors. Upon request, Seller will provide RMS with all documents, records, and other supporting information necessary to obtain any duty drawback, and will reasonably cooperate with RMS to obtain payment.
9. CONFIDENTIAL INFORMATION.
9.1 The term: (a) “products” as used only in this Section 9 means all products manufactured or sold by or for RMS or services performed for RMS, including the Goods and Services; and (b) “RMS Confidential Information” means information or tangible materials, whether or not designated by RMS as confidential, pertaining to: (i) product development, design, formulations, composition, research and development, or specifications; (ii) product manufacturing techniques, rates or quantities; (iii) equipment used to make products; (iv) any other aspects of RMS’s business relating to products and services, including without limitation marketing, sales, customers and non-public financial data; (v) all Orders placed by RMS; and (vi) the Parties’ relationship.
9.2 Seller will: (a) keep all RMS Confidential Information confidential; (b) use RMS Confidential Information only as necessary to perform Seller’s obligations under the Order; and (c) assure that its employees, agents, and RMS-approved subcontractors abide by these confidentiality obligations. If Seller receives any tangible materials constituting RMS Confidential Information, then Seller will return those to RMS, on RMS’s request or at the end of the applicable Order. RMS Confidential Information does not include information that is: (x) available to the public in any publication; (y) known to Seller prior to its receipt from RMS as evidenced by Seller’s written records; or (z) available to Seller from another source without breach of any agreement or violation of law. If required by judicial or administrative process to disclose RMS Confidential Information, Seller agrees to promptly give RMS notice, allow RMS reasonable time to oppose such process, and seek to have the third party treat the information confidentially to the extent legally permissible.
10. INDEMNIFICATION & INSURANCE.
Seller will indemnify, defend, and hold harmless RMS, its affiliates, and their successors, assigns, officers, directors, employees, and agents for, from and against any claim, liability, loss, damage, lien, judgment, duty, fine, civil penalty and cost, including attorneys’ fees and litigation expenses, arising out of: (a) Seller’s failure to comply with any of its obligations under an Order (including these Terms), which may include, without limitation, those relating to a resulting Good recall or other reasonable action RMS takes regarding any such failure; and (b) claims arising out of handling, packaging, labeling, storage, treatment, removal, transportation, and disposal of any waste material at any Seller site or related to the Goods under any laws, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. Sections 9601 et seq. as amended, known as “CERCLA”), the Hazardous Materials Transportation Act (49 U.S.C. Sections 5101 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. Sections 6901 et seq., known as “RCRA”), or any other current or future law of similar effect. These indemnities do not affect any other RMS remedies. Seller will at all times maintain liability, property damage, and other insurance to protect RMS from all the foregoing risks, and will, on request, supply certificates evidencing this coverage.
11. GOVERNMENT FLOW-DOWNS.
Be advised that Seller’s Goods and/or Services may be included in products and/or services RMS sells directly or indirectly to the U.S. Government. Due to such sales, certain, limited number of Federal Acquisition Regulation (FAR) and Defense FAR Supplement (DFARS) contract clauses required for the purchase of commercial items by the U.S. Government, will be “flowed down” in all Orders. The Flow-Downs are incorporated into this Order by reference to the extent required by applicable Federal laws and/or regulations, or are necessary to protect the rights and obligations of RMS as such clauses are included in U.S. Government prime contracts or higher-tier subcontracts awarded to RMS. These Flow-Downs have the same force and effect as if they were included in full text in this Order. The applicable version of the Flow-Downs is the most current version shown in the RMS Supplier Direct website as of the issuance date of this Order and may only be changed by mutual written agreement of the Parties.
12. UNAVOIDABLE DELAY.
If a Party cannot perform its obligations, in whole or in part, under an Order as a result of civil or military authority, war, flood, fire, epidemic, or other condition or cause beyond its reasonable control and not related to its fault or negligence (an “Unavoidable Delay”), that Party will be excused from that performance during the Unavoidable Delay to the extent that performance is prevented or delayed. If Seller has an Unavoidable Delay, RMS may modify or terminate any Orders on notice to Seller without liability to Seller. During a Seller Unavoidable Delay period, Seller will allocate any available Goods as is fair and reasonable. Unavoidable Delay will not include: (a) any labor dispute; (b) non-performance by Seller’s supplier; or (c) any delay preventable by Seller moving the affected Goods to an alternate RMS-approved Seller facility.
13. SELLER WAIVER OF DAMAGES.
RMS WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO SELLER FOR SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS) IN ANY WAY RELATED TO GOODS, SERVICES, AN ORDER, OR ITS TERMINATION, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE DAMAGES ARE SOUGHT.
14. DISPUTE RESOLUTION.
Any claim or dispute arising from, or relating to, a Good, Service, or an Order (including these Terms) will be: (a) governed by the laws of the State of Minnesota, United States of America, without regard to its conflicts of law provisions; and (b) must only be litigated in a state court of competent jurisdiction in Morrison County, Minnesota. Each Party consents to the Minnesota courts’ personal jurisdiction. The 1980 United Nations Convention on Contracts for the International Sale of Goods will not govern an Order. All negotiations will be conducted in English, and all documents, including all Orders, will be written in English.
Unless otherwise stated in these Terms, any permitted or required notice must be in writing and personally delivered, including via any internationally recognized overnight service: (a) to RMS Energy Co., LLC, 201 1st Street, Randall, MN 56476; and (b) to Seller at the address to which the applicable Order was sent. Notice of a Party’s address change will be given as stated above.
16. GENERAL TERMS.
Reference in these Terms to laws includes all federal, state, provincial, regional, territorial and local laws, statutes, regulations, rules ordinances and directives of any government. Each Order (including these Terms) is the Parties’ final and complete agreement, and it terminates all their prior written or oral agreements and understandings as to that Order’s subject matter. All these Terms including, without limitation, those relating to safety, regulatory compliance, warranty, insurance, indemnification, confidentiality, will survive an Order’s end and be fully enforceable thereafter to the full extent necessary to protect the Party in whose favor they run. A Party’s failure(s) to insist on strict performance, or to exercise its rights, under an Order, does not waive subsequent compliance with that Order. All RMS rights and remedies under an Order are cumulative, and in addition to any other rights and remedies provided in law or equity. Seller may not assign an Order or any of its rights or obligations under an Order, including, without limitation, any subcontracting (“Assignment”), without RMS’s prior written consent. No purported Assignment by Seller is binding on RMS without its written consent. No RMS consent to a Seller Assignment relieves Seller of any obligations under an Order, and Seller will ensure that any full assignee assumes all of Seller’s obligations under these Terms and that any subcontractor is bound by terms as stringent as these Terms. Except as otherwise provided in these Terms, an Order may only be modified by a written document signed by the Parties’ authorized representatives