1.         Terms and Conditions:  The contract documents for each transaction governed by these terms, shall consist solely of (1) these Terms and Conditions, including any other terms and conditions incorporated herein by reference, (2) the applicable Purchase Order (hereinafter the “Order”) issued to Seller by I. Schumann & Co., LLC (hereinafter “Schumann”), and (3) Seller’s and Schumann’s description and specifications of the goods and services to be provided pursuant to the Order (hereinafter collectively “Deliverables”).  Such contract documents contain the entire agreement between the parties pertaining to the purchase by Schumann of the goods and services set forth in the Order.

2.         Acceptance:  These Standard Terms and Conditions of purchase are not an order to Seller and do not constitute an acceptance by Schumann of any offer to sell, quotation or proposal.  A Schumann purchase order is an order to purchase goods and/or services from the Seller but does not obligate Schumann to any of Seller’s Terms and Conditions.  Any reference in the Order (or elsewhere in the contract documents) to Seller’s offer to sell, quotation or proposal is solely for the purpose of incorporating the description and specifications of the Deliverables and only to the extent that such description and specifications of the Deliverables contained therein do not conflict with the description and specifications contained in the Order.  In the case of any such conflict the description and specifications set forth in the Order shall govern.  By acknowledging receipt of the Order or by shipping the Deliverables, Seller agrees to the terms and conditions set forth or incorporated by reference herein.  Any additional or different terms or conditions contained in any invoice or acknowledgement of the Order by Seller shall be deemed objected to by Schumann without need of further notice of objection and shall be of no effect nor in any circumstances binding upon Schumann. 

3.         Prices and Terms of Payment:  The prices and terms of payment stated on the Order apply to all shipments made or services rendered in connection with the Order.  Schumann shall have no obligation to honor invoices for Deliverables at any increased price unless such increase shall have been confirmed in writing by Schumann.  No charges of any kind not stated on the Order, including without limitation charges for taxes, freight, duty, insurance, packing, crating or containers, will be allowed unless specifically agreed to by Schumann in writing. All invoices must be issued by Seller in duplicate showing Gross, Tare and Net weights as soon as related material is shipped.  Schumann reserves the right to dispute Seller’s listed weights for materials.  Schumann will make payment based upon its received weights. 

4.         Conditions of Payment:  Payment for Deliverables will be made in accordance with the following terms:  Payment will be made within 60 days from the date of receipt of the applicable Deliverable, unless otherwise provided on the face of the Order.  Actual receipt will be the determining factor in the calculation of cash discounts and the scheduling of payment of invoices.  Unless an earlier date is supported by evidence of shipment as a part of the invoice, Schumann’s receiving date shall be used to establish time of payment.  Schumann shall be entitled, at all times, to set off any amount owing from Seller to Schumann against any amount due or owing to Seller with respect to the Order.

 5.        Taxes:  Any applicable federal, state, and local taxes shall be stated separately on Seller’s invoice.  The prices stated herein do not, nor will any invoice of Seller, include any tax with respect to which an exemption is available or is indicated by Schumann to be available, or any federal excise or other tax with respect to which Schumann has furnished Seller evidence of a lawful exemption.  In case it shall ever be determined that any tax, whether separately stated on Seller’s invoice and paid by Schumann or included in the price charged by Seller was not required to be paid by Seller, Seller agrees to notify Schumann and promptly take all steps necessary to obtain a refund, and when received, to pay such refund to Schumann.

6.         Delivery; Title:  The terms of delivery are stated on the Order and, unless otherwise provided in the Order, title will pass to Schumann upon delivery of goods and materials to Schumann or payment, whichever first occurs.  The obligation of the Seller to meet the delivery dates, specifications and quantities as set forth on the Order is of the essence to the agreement.  Deliveries are to be made both in quantities and at times specified on the Order, or if no such quantities or times are specified, pursuant to Schumann’s written instructions.  Shipments in greater quantities than ordered may be returned at Seller’s expense, unless written authorization is issued by Schumann.  If Seller’s deliveries fail to meet the specified receipt date indicated on the Order, without limiting its other rights or remedies, Schumann may either direct expedited routing and charge excess cost incurred thereby to Seller or cancel all or part of the Order in accordance with the default provisions hereof.  Deliverables which are delivered in advance of the date indicated by the Order are at the risk of Seller and may, at Schumann’s option, be returned at Seller’s expense for proper delivery and/or have payment therefor withheld by Schumann until the date that the Deliverables are actually specified for delivery. Damage to any Deliverables because of packaging which fails to protect such Deliverables will be charged to Seller.  All deliveries must be made by prior appointment, and the delivery of certain materials to Schumann shall be subject to the following: (a) loose material will not be accepted without prior authorization by Schumann, (b) material containing Arsenic, Beryllium and Bismuth will not be accepted without prior authorization by Schumann, and (c) material containing trace amounts of radiation will not be accepted.

7.         Excusable Delay for Non-Performance:  Neither party shall be liable to the other, nor deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of the Order when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of such party including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution and insurrection.

8.         Government Regulations:  Each of Seller’s invoices covering materials covered by the Order must carry the following certificate or its equivalent in order to be processed for payment: “Seller hereby certifies that any materials covered by this invoice were produced in compliance with all applicable requirements of the Fair Labor Standards Act, as amended, and of regulations and orders issued thereunder.”  Seller warrants and covenants that the Deliverables to be furnished hereunder comply with the requirements of the Occupational Safety and Health Act of 1970, as amended.  Seller warrants and covenants that all shipments of material will be in accordance with OSHA Hazard Communication Standard, 29 C.F.R Sec. 1910.1200.  Seller warrants and covenants that any materials or labor used or Deliverables furnished by it and/or its subcontractors for the completion of the Order comply with all regulations and provisions of the Country of origin, including but not limited the Dodd-Frank Act and Conflict Mineral laws, to all labor laws, all health and safety regulations, and any applicable laws, acts, orders and regulations of any Foreign, Federal, State or Local Governments relating to the environment, labor conditions, and the rights of employees.  Seller also agrees to allow Schumann, or any representative appointed by Schumann, the right to audit without notice any facility including those of subcontractors for the purpose of ensuring this compliance.

9.         Inspection:  All Deliverables provided hereunder shall be subject to inspection and testing at the point of destination, notwithstanding prior payment by Schumann.   Schumann will provide Seller with notice that the Deliverables are of the wrong type, weight or quantity, and in the event of any discrepancy as to quantities/weights of Deliverables received by Schumann, Schumann’s records shall control absent clear and incontrovertible evidence to the contrary.  If any of the Deliverables are defective or otherwise not in conformity with the requirements of the Order or Schumann’s designs, Schumann in addition to its other rights, may reject the same for full credit or may rework the same at Seller’s expense or may require prompt correction or replacement thereof by Seller at Seller’s expense.  Any Deliverables rejected by Schumann shall be at Seller’s risk and expense and shall not thereafter be tendered for acceptance without Schumann’s written consent.  The packaging and handling expense incidental thereto and the applicable transportation costs or charges will be charged to Seller’s account.  Nothing herein shall release Seller from the obligation to make full and adequate testing and inspection of Deliverables sold herein.  The Seller’s manufacturing plant or such part of any manufacturing plant as may be engaged in manufacturing or furnishing the product together with cost records or orders placed on a time and material basis, shall with reasonable notice be subject to inspection by Schumann.

10.       Ownership of Work Product:  Seller agrees that all drawings, field notes, specifications, documents, materials or work product, whether in written, audio, video or electronic form, that are developed for Schumann or that are unique to the subject matter of the Order ("Work Product"), shall be delivered to and will become the property of Schumann.  All Work Product shall be considered a “work for hire” under the federal Copyright Act of 1976 and any successor or replacement act, and all amendments thereto and regulations issued thereunder.  Seller agrees to assign all of its right, title and interest, including without limitation copyrights, for all such Work Product to Schumann. Seller hereby grants Schumann the irrevocable and transferable right and license to use any other drawings, field notes, specifications, software, documents and materials that are not considered Work Product for any purpose pertaining to the Schumann's use, operation, maintenance and repair of the goods purchased hereunder, including the right to contract with others for the manufacture of replacement parts or the installation of additional or complementary equipment, software or components.

11.       Confidentiality of Information:  Seller shall not, without first obtaining Schumann’s written consent, in any manner advertise, publish, communicate or otherwise divulge the fact that the Seller has contracted to furnish the Deliverables to Schumann.  All non-public, confidential or proprietary information of Schumann, including but not limited to specifications, samples, documents, data, business operations know how, customer lists, pricing, discounts or rebates, disclosed by Schumann to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential," is confidential, solely for the use of performing the agreement between Schumann and Seller and may not be directly or indirectly disclosed or used by Seller for any other purpose. Upon Schumann's request, Seller shall promptly return all documents and other materials received from Schumann. This Section does not apply to information that is: (a) in the public domain; (b) known to Seller at the time of first disclosure as evidenced by written documentation; or (c) rightfully obtained by Seller on a non-confidential basis from a third party.  Schumann shall be entitled to equitable relief, including injunction (without bond) and specific performance, in the event of any breach or threatened breach of this Paragraph 11 by Seller.  Such remedies shall not be deemed to be the exclusive remedies of Schumann but shall be in addition to all other remedies available at law or in equity.

12.       Warranties:  Seller expressly warrants and guarantees to Schumann and its successors, assigns and customers, that all Deliverables delivered to Schumann will: (a) conform to the specifications, standards, drawings, samples, descriptions and revisions as furnished to or by Schumann and/or referenced in the Order; (b) conform to all applicable laws, orders, regulations and standards; (c) be new (if applicable), merchantable and free of defects in design (to the extent designed by Seller), manufacture, materials and workmanship; and (d) be selected, designed (to the extent designed by Seller), manufactured and assembled by Seller based upon Schumann’s stated use and be fit and sufficient for the purposes intended by Schumann. The warranty period is the longer of three years from the date Schumann accepts the Deliverables or the warranty period provided by applicable law.  For all services, Seller further warrants that its work will be performed in a professional and workmanlike manner, consistent with all standards and specifications agreed on with Schumann and otherwise consistent with industry standards. Seller will immediately notify Schumann in writing when it becomes aware of any ingredient, component, design or defect in Deliverables that is or may become harmful to persons or property. Schumann’s approval of any design, drawing, material, process or specifications will not relieve Seller of these warranties.

13.       Indemnification:  Seller shall defend, indemnify and hold harmless Schumann and its agents, employees, representatives, officers and directors, and its and their respective successors and assigns, from and against any and all claims, actions, damages or causes of action at law or in equity, together with any and all losses, costs, and expenses and attorneys’ fees arising in connection therewith or related thereto, (i)  for damage to property and/or bodily injury, disease or death suffered by any person (including, without limitation, employees of Seller or its subcontractors) arising or in any manner growing out of the Deliverables or the presence or activities of Seller (or any of its agents or subcontractors) on Schumann’s premises or worksites, (ii) that relate to or arise out of any claim for additional compensation by Seller’s subcontractors, materialmen and suppliers (including mechanic's lien claims), (iii) that are caused by any breach by Seller of any of the terms or conditions of the Order, including these Purchasing Terms and Conditions and all other terms and conditions incorporated herein by reference, or (iv) that arise out of any infringement or claimed infringement of any patent, trademark, copyright or other intellectual property right in the design, manufacture, sale and/or use of the Deliverables.  Notwithstanding the foregoing, Schumann may be represented in any such legal actions or settlement of such claims by attorneys of its own selection at its own expense. With the specific intent of ensuring that the indemnification provisions above are enforceable under applicable law with respect to bodily injury, disease or death suffered by employees of Seller or its subcontractors, Seller does hereby expressly and specifically waive its constitutional and statutory immunity from suit and causes of action provided to employers by Section 35, Article II of the Ohio Constitution and O.R.C Section 4123.74, as well as any other similar immunity provided for by any other statute, law or constitution of any applicable jurisdiction. The foregoing sentence shall not be deemed to grant any additional rights or remedies to any persons or entities other than the indemnified parties described above, and therefore this provision shall not be construed as a general waiver by Seller of its immunity to direct suits by its employees or any employees of its subcontractors except as is necessary to achieve the stated purpose of the immediately preceding sentence.  The foregoing indemnity provisions shall be construed as an “insured” or “covered” contract under Seller’s general liability insurance policy(ies).

14.       Intellectual Property:  Seller warrants that the Deliverables specified herein and their sale or use alone, or in combination to Seller’s specifications or recommendations, if any, will not infringe on any United States or foreign patent, copyright or trademark or any other third-party intellectual property right.  In case the Deliverables constitute patent, copyright, trademark or intellectual property infringement and their use is enjoined, Schumann may, at its sole option, pursue any remedy or remedies available at law or in equity, including, without limitation, requiring Seller to either procure for Schumann the right to continue using such Deliverables, modify them so they become non-infringing or remove them and refund the total purchase price thereof.

15.       Changes:  Schumann may at any time, by written notice, make changes in the scope of the work covered by the Order and Seller shall comply therewith so long as such changes are within the same general scope of work.  If any such changes cause an increase or decrease in the cost of or time required for performance of Seller’s obligation pursuant to the Order, an equitable adjustment for Seller’s additional direct and verifiable costs shall be made in price or delivery schedule or both, and the Order shall be modified in writing accordingly.  Any claim by Seller for adjustment under this clause must be asserted within ten (10) days from the date of receipt by Seller of the notification of change.

16.       Assignments:  No right or obligation under the Order, including the right to receive monies due or to become due hereunder, shall be assigned by Seller without the prior written consent of Schumann and any purported assignment without such consent shall be void.  Seller shall not subcontract or in any manner delegate to any other party the performance of any work or the supplying of any services under the Order without the prior written approval of Schumann.

17.       Substitutions, Extras:  No substitution of materials or goods may be made without Schumann’s written consent.  No charges for extras will be allowed unless such extras have been ordered in writing by Schumann and the price agreed upon.

18.       Insurance:  Seller shall procure and maintain, at its own expense, insurance coverage meeting or exceeding the requirements set forth in the Schumann insurance and risk management program[RJC1] , as in effect from time to time.

19.       Inducements:  Seller has not and will not offer or give to any employees, agent or representative of Schumann any consideration, value or other inducement with a view toward securing any business from Schumann or influencing such person with respect to the terms, conditions or performance of any contract/order or from Schumann.  Any breach of this covenant shall be a material breach of each and every contract between Schumann and Seller.

20.       Default and Termination:  Schumann may immediately cancel the Order, without liability to Seller, in the event of any of the following or any other comparable events: (i) insolvency or bankruptcy of Seller, appointment of a receiver or trustee for Seller, or execution of an assignment for the benefit of creditors by Seller, (ii) termination is required to avoid non-compliance with any law, order, regulation, request or imminent action of any government entity, or (iii) a force majeure or other event beyond the reasonable control of Schumann occurs and Schumann determines that cancellation is in its best interest as a result thereof. Schumann reserves the right to cancel all or any part of the purchase order, without liability to Seller, if Seller breaches any of the terms and conditions applicable to the Order and Seller does not correct such failure or breach within ten (10) days (or such shorter period of time if commercially reasonable under the circumstances) after receipt of notice from Schumann specifying such failure or breach.  No waiver by Schumann of a breach by Seller of any provision of the Order shall constitute a waiver of any other breach of such provision.  All of Schumann’s rights and remedies hereunder shall be cumulative and not exclusive.

21.       Limitation of Schumann’s Liability, Statute of Limitations:  IN NO EVENT SHALL SCHUMANN BE LIABLE TO SELLER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, IMPACT, EQUIPMENT DOWNTIME, DELAY, OR FOR ANY OTHER CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT Seller HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

Schumann’s liability on any claim of any kind for any loss or damage arising out of, connected with resulting from the Order or the contract based thereon, or from the performance or break thereof, shall in no case exceed the price allocable to the Deliverables or unit thereof which give rise to the claim.  Schumann shall not be liable for penalties of any description.  Any action resulting from any breach on the part of Schumann as to the Deliverables delivered hereunder must be commenced with one (1) year after the cause of action has accrued.

22.       Remedies:  Schumann’s rights and remedies in the Order will be cumulative with and in addition to all other legal or equitable remedies. In any action brought by Schumann to enforce Seller’s obligation to produce and deliver Deliverables under the Order, the parties agree that Schumann does not have an adequate remedy at law and Schumann is entitled to specific performance (including temporary, preliminary and permanent injunctive relief without necessity of posting bond) of Seller’s obligations under the Order.

23.       Risk of Loss or Damage:  Risk of loss or damage to the Deliverables furnished under the terms of the Order, shall pass to Schumann upon acceptance by Schumann.  Acceptance of scrap metal occurs once all material delivered has been weighed, examined and sorted. During the period that Seller bears the risk of loss or damage, Seller shall, by insurance or otherwise, bear the complete risk of loss or damage to the Deliverables, no matter how caused and shall hold harmless Schumann from any such liability.

24.       Termination for Convenience:  An addition to any other provisions contained herein for the cancellation or termination of the Order, Schumann may cancel the Order, for any reason or no reason, in whole or part, by written notice to Seller on the condition that Schumann pay to Seller the actual net direct and verifiable out-of-pocket costs Seller incurred in good faith prior to Seller’s receipt of the cancellation notice in connection with the Order, provided however, that in no event shall Schumann be liable for Seller’s commitments or production arrangements in excess of the amount, or in advance of that time, necessary to meet Schumann’s delivery requirements. The payment required by the foregoing sentence shall constitute Schumann's sole liability in the event of termination for Schumann's convenience. Seller shall use its best efforts to minimize any such costs.

25.       Jurisdiction and Venue:  Any dispute of whatsoever nature arising out of the Order, including payment for same, shall be venued exclusively in State or Federal courts of competent jurisdiction, for or located in Cuyahoga County, Ohio.  Seller hereby consents to the exclusive jurisdiction of said courts to resolve any such dispute.  In the event that an action is commenced in any other jurisdiction, Seller agrees to the transfer of such action to the court of proper jurisdiction (as set forth in this section) and reimburse Schumann for all costs (including reasonable attorney fees) and expenses in connection with the transfer.  SELLER, OR ANYONE CLAIMING THROUGH SELLER, EXPRESSLY WAIVES THE RIGHT TO A JURY TRIAL WITH RESPECT TO ANY PROCEEDINGS ARISING OUT OF THE SALE OF THE DELIVERABLES PROVIDED BY SELLER.

26.       Relationship of Parties:  Seller and Schumann are independent contracting parties and nothing in the Order will make either party the employee, agent or legal representative of the other for any purpose. The Order does not grant either party any authority to assume or to create any obligation on behalf of or in the name of the other. Seller will be solely responsible for all employment and income taxes, insurance premiums, charges and other expenses it incurs in connection with its performance of the Order, except as expressly provided in a written agreement signed by Schumann. All employees and agents of Seller or its respective contractors are employees or agents solely of Seller or such contractors, and not of Schumann, and are not entitled to employee benefits or other rights accorded to Schumann’s employees. Schumann is not responsible for any obligation with respect to employees or agents of Seller or its contractors.

27.       Conflict of Interest:  Seller represents and warrants that its performance of the Order will not in any way conflict with any continuing interests or obligations of Seller or its employees or contractors. Seller further warrants that while the Order is in effect, Seller and those of its employees and contractors participating in the performance of the Order will refrain from any activities which could reasonably be expected to present a conflict of interest with respect to Seller’s relationship with Schumann or its performance of the Order.

28.       Language, Severability, No Implied Waiver:  The parties acknowledge that it is their wish that these Terms and all documents relating thereto be in the English language only and only the English language version of these Terms shall govern.  Any translation of the English language version of these Terms shall have no force or effect.  If any term or provision of the agreement between Seller and Schumann is determined to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of such agreement or invalidate or render unenforceable such term or provision in any other jurisdiction, and such invalid, illegal or unenforceable provision will be construed by limiting it so as to be valid and enforceable to the maximum extent compatible with, and possible under, applicable law.  The failure of either party at any time to require performance by the other party of any provision of the Order will not affect the right to require performance at any later time, nor will the waiver of either party of a breach of any provision of the Order constitute a waiver of any later breach of the same or other provision of the Order.

29.       Survival:  The obligations of Seller to Schumann survive termination of the Order, except as otherwise provided in the Order.

30.       Additional Terms for Work on Schumann’s Premises:  If the Order requires Seller to perform work, or otherwise be present on, Schumann’s premises, the following additional terms and conditions shall apply, be incorporated herein by reference, and become part of the contract documents governing the Order:  

 

• Additional Terms and Conditions for Work on Schumann Premises

• Insurance and Risk Management Program

• Employee Training Requirements

• Contractor Safety Program

• Other Contractor Compliance Programs (e.g., environmental responsibilities)[RJC2] 

 

Seller is responsible for reviewing the above terms and conditions, which may be accessed by using the links provided above or by request made to Schumann’s purchasing manager.

 

31.       Entire Agreement:  The Order, together with these Terms and Conditions (including all of the contract documents referenced above), as the same may be amended or modified in writing, and any documents referred to herein, supersede all prior understandings, representations, communications and writings with respect to the matters referred to herein. 

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