1. Applicability. These terms and conditions (“Terms”) together with a Purchase Order form an “Agreement” between Badlands Gear Co., LLC (“Badlands”) and the supplying party specified on the Purchase Order (“Supplier”) for the purchase of all products or services (“Goods”) provided by Supplier, directly or indirectly, to or for Badlands, under the applicable Purchase Order. No terms other than the Agreement will apply to Supplier’s provision of Goods, except if the parties have executed a separate written agreement governing the Goods specified in the Purchase Order (“Existing Agreement”), in which case the Existing Agreement will apply as to any conflicts. If there is a conflict between these Terms and any Purchase Order, the Purchase Order governs. Badlands hereby expressly objects to any additional or different terms contained in any Supplier documents, including online terms, quotations, or acknowledgments. This Purchase Order is an offer, and the Agreement expressly limits acceptance to its terms and conditions. Any additional or different terms contained in Supplier documents will be considered material alterations to the Agreement and are void.
2. Purchase Orders. Badlands may submit a purchase order (including any incorporated attachments) for Goods (“Purchase Order”) in writing, including electronic submission. Badlands may reschedule delivery of Goods, change the delivery destination for Goods in any Purchase Order, or cancel any Purchase Order upon written notice to Supplier at any time before the scheduled delivery date at no cost to Badlands except if the parties agree in writing to an appropriate adjustment to their obligations under the Purchase Order. Supplier will not unreasonably withhold or delay agreement to any change requested by Badlands. Supplier will stop work on the applicable Purchase Order immediately upon receipt of a cancellation notice from Badlands.
3. Delivery. Supplier shall deliver the Goods in the quantities and on the date(s) specified in the Purchase Order (“Delivery Date”). TIMELY DELIVERY OF THE GOODS IS OF THE ESSENCE. If a Goods shipment (or part of a shipment) is likely to be delayed, Supplier will: (a) promptly notify Badlands in writing and immediately propose a new delivery date, (b) use best efforts to expedite delayed Goods at Supplier’s expense, and (c) issue Badlands a discount or refund on the purchase price for Goods delivered late, unless otherwise agreed by the parties. If Supplier fails to deliver the Goods in full on the Delivery Date, Supplier shall indemnify Badlands against any losses, claims, damages, and reasonable costs and expenses directly attributable to Supplier’s failure to deliver the Goods on the Delivery Date. In addition to the remedies in Section 3, Badlands may (d) cancel without liability the applicable Purchase Order or portions of the Purchase Order for late Goods not yet delivered, and (e) cover for late Goods by sourcing products from another supplier, at Supplier’s expense. Badlands has the right to return any Goods delivered prior to the Delivery Date at Supplier’s expense and Supplier shall redeliver such Goods on the Delivery Date.
4. Quantity. If Supplier delivers more than or less than the quantity of Goods ordered, Badlands may reject all or any Goods, including without limitation all or any excess Goods. Any such rejected Goods shall be returned to Seller at Seller’s risk and expense.
5. Delivery Destination. All Goods shall be delivered to the address specified in the Purchase Order during normal business hours or as otherwise instructed by Badlands.
6. Shipping Terms; Title and Risk of Loss. Unless otherwise specified in the Purchase Order, Supplier will deliver Goods DDP (Incoterms 2020) to the delivery destination stated in the Purchase Order, with title and risk of loss transferring from Supplier to Badlands at the delivery destination. Supplier bears all risk of loss or damage to the Goods until transfer to Badlands. Supplier shall give written notice of shipment to Badlands when the Goods are delivered to a carrier for transportation. When Supplier is responsible for exporting or importing Goods, Supplier will obtain all authorizations and permits necessary to fulfill all applicable governments’ requirements for Goods shipment. Upon Badlands’s request, Supplier will provide Badlands with any information Badlands requests regarding Goods’ importation, exportation or distribution and all shipping documents, including the commercial invoice, air waybill/bill of lading, packing list, and any other document necessary to release the Goods to Badlands after Seller delivers the Goods to the transportation carrier. The Purchase Order number must appear on all shipping documents, shipping labels, bills of lading, invoices, correspondence, and any other documents pertaining to the Purchase Order.
7. Packaging. All Goods shall be packed for shipment according to Badlands’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered safely and in undamaged condition. Supplier must provide Badlands prior written notice if it requires Badlands to return any packaging material. Any return of such packaging material shall be made at Supplier’s expense.
8. Inspection, Acceptance, and Rejection of Goods. Badlands has the right to inspect the Goods on or after the Delivery Date. Badlands’s inspection or payment to Supplier for Goods will not be treated as acceptance. Badlands, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines the Goods are non-conforming or Defective. Any Goods not rejected within six months of receipt will be deemed accepted by Badlands. If Badlands rejects any portion of the Goods, Badlands has the right, effective upon written notice to Supplier, to: (a) rescind the Purchase Order in its entirety; (b) accept the Goods at a reasonably reduced price; or (c) reject the Goods and require immediate replacement of the rejected Goods, at Supplier’s expense, including all freight costs. For Goods that are discovered to be Defective during the Warranty Period, Supplier will, at its expense and at Badlands’s option, (d) replace or repair Defective Goods and re-deliver such repaired or replaced Goods to Badlands within a commercially reasonable timeframe agreed to by Badlands, (e) refund Badlands the purchase price of the Defective Goods within thirty days of receiving Badlands notice that the Goods are Defective, or (f) reimburse Badlands for the reasonable cost to have the Goods repaired within thirty days after receiving Badlands’s invoice. If Badlands requires replacement of the Goods, Supplier shall, at its expense, immediately replace the Defective Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the Defective Goods and the delivery of replacement Goods. If Supplier fails to timely deliver replacement Goods, Badlands may replace them with goods from a third party and charge Supplier the cost thereof. Supplier is responsible for all costs, damages, and liabilities incurred by Badlands as a result of Defective Goods. For the purposes of the Agreement, “Defective” " means with respect to the Goods a failure to meet the warranties related to Goods (including Section 13(c) and 13(d)), and the “Warranty Period” means the longer of the twelve-month period starting on the date Badlands accepts the Goods or the warranty period offered by Supplier on the Goods.
9. Price. Unless otherwise specified in the Purchase Order, the price includes all packaging, transportation costs to the destination, insurance, customs, fees, and applicable taxes. No increase in the price is effective, whether due to increased material, labor, or transportation costs or otherwise, without the prior written consent of Badlands.
10. Payment Terms. Supplier shall issue an invoice to Badlands only in accordance with the Purchase Order. Badlands shall pay all properly invoiced amounts due to Supplier except for any amounts disputed by Supplier in good faith. Upon Badlands’s request, Supplier will issue separate invoices for undisputed and disputed amounts. Payment of undisputed amounts will not limit Badlands’s right to object and refuse payment of disputed amounts. Badlands is not obligated to pay any invoice submitted more than one hundred eighty days past the Purchase Order payment terms.
11. Setoff. Without prejudice to any other right or remedy it may have, Badlands reserves the right to set off at any time any payment obligations to Supplier that Badlands may incur under the Agreement against any fees owed to Badlands under the Agreement or any other agreement between Supplier and Badlands.
12. Tooling; Intellectual Property Rights; Licenses. Any specifications, drawings, schematics, technical information, data, tools, dies, patterns, masks, test equipment or any other material furnished or paid for by Badlands shall (a) be kept confidential by Supplier; (b) remain or become Badlands’s property; (c) be used by Supplier exclusively to manufacture goods for Badlands; (d) be clearly marked as Badlands’s property and be segregated from Supplier’s other tooling, materials and data when not in use; (e) be kept in good working condition at Supplier’s expense; and (f) be shipped to Badlands promptly on demand. Badlands owns anything protectable by an Intellectual Property Right created or discovered by Badlands or Supplier in connection with the Agreement (“Developed IP”). The Developed IP is a work made for hire to the extent permitted by applicable law, and Badlands retains all Intellectual Property Rights in the Developed IP. To the extent that Supplier or its personnel or contractors own any rights in the Developed IP, Supplier assigns (or will procure assignment of) all rights (including Intellectual Property Rights), title, and interest in the Developed IP to Badlands. If applicable law prevents future assignments, Supplier will assign (or will procure the assignment of) such rights as they are created. If applicable law prevents Supplier from transferring ownership of any Developed IP to Badlands, Supplier grants Badlands, its affiliates, distributors, and end users a perpetual, irrevocable, exclusive, transferable, worldwide, fully paid-up, royalty-free license (with a right to sublicense) to make, use, sell, offer for sale, import, export any component of, dispose of, reproduce, prepare derivative works of, distribute, publicly perform, and publicly display the Developed IP. If requested by Badlands, Supplier will timely perform all acts reasonably necessary to accomplish the assignments and other transactions specified in the Agreement. Supplier will not assert, and to the extent permitted by applicable law, otherwise waives, any moral rights in the Developed IP, and will ensure that its personnel and contractors who have moral rights in the Developed IP will also not assert, and to the extent permitted by applicable law, will waive, those moral rights. If Supplier uses anything protectable by an Intellectual Property Right owned or licensed by a third party (“Background IP”), Supplier must describe such Background IP in writing, and Supplier grants to Badlands and its affiliates, distributors, and end users a perpetual, irrevocable, non-exclusive, royalty-free, fully-paid, worldwide license (with the right to sublicense) to (g) reproduce, prepare derivative works of, distribute, publicly perform, publicly display, and otherwise use the Background IP, in connection with the Developed IP, and (h) make, use, sell, offer for sale, import, export and otherwise dispose of the Background IP in connection with any Developed IP or the Goods, including any improvements developed by Supplier for the respective Goods. Nothing in the Agreement grants a party any license, right, or interest in the other party’s trademark(s) or trade name(s). For purposes of this Section, “Intellectual Property Right” means all registered or unregistered intellectual property rights throughout the world, including rights in patents, copyrights, trademarks, trade secrets, designs, databases, and domain names; and moral rights.
13. Representations and Warranties. Supplier represents and warrants: (a) it has full power and authority to enter into and fulfill its obligations under the Agreement and to grant the rights and licenses it grants in the Agreement; (b) its compliance with the Agreement will not violate any agreements it has with any third party; (c) all Goods will be new, unused, and not refurbished at the time of delivery, and will be safe for normal use and free from defects in design, materials, and workmanship during the Warranty Period; (d) all Goods will conform to their Specifications, be of satisfactory quality and reasonably fit for any purpose made known to Supplier, be fit for their intended purpose and operate as intended, and be merchantable; (e) it will not incorporate anything protectable by an Intellectual Property Right owned or licensed by a third party without Badlands’s prior written approval and it otherwise owns or has properly licensed all Goods provided by Supplier under the Agreement and Badlands will acquire all Goods free and clear of all liens, security interests or other encumbrances; (f) it has not infringed or misappropriated any third party’s patent or other intellectual property rights in supplying the Goods; (g) its performance under the Agreement will be of professional quality and performed consistent with generally accepted industry standards (h) it will, to the extent it is contractually permitted to do so, provide to Badlands the benefits of sub-manufacturers’ or sub-suppliers' warranties and guarantees for material or equipment incorporated into the Goods, and will perform its responsibilities so that such warranties or guarantees remain in full effect; and (i) it (and its personnel and contractors) will comply with all procedures and policies provided by Badlands (including environmental, health, safety, and security procedures) and any codes of conduct. These warranties survive any delivery, inspection, acceptance or payment of or for the Goods by Badlands. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Badlands’s discovery of the noncompliance with the foregoing warranties. For purposes of the Agreement, “Specifications” means those specifications identified in a Purchase Order, if any, or as the parties may otherwise agree to in writing.
14. Indemnification. Supplier shall defend, indemnify and hold harmless Badlands and Badlands’s parent and its affiliates, successors or assigns and its and their directors, managers, officers, shareholders, agents, employees and Badlands’s customers (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with: (a) Supplier’s breach of the Agreement; (b) Supplier’s negligence, willful misconduct, fraud, misrepresentation, or violation of law; (c) any property damage, personal injury, or death related to Supplier’s performance under the Agreement or use of the Goods; or (d) any allegation that use, possession, or sale of the Goods violates or infringes a third party’s rights. If an injunction preventing continued use of any Goods is threatened or granted, Supplier will do the following at its sole expense: (e) procure the right to continue providing the Goods in compliance with the Agreement; (f) modify the Goods to make them non-infringing without materially reducing their functionality; or (g) replace the Goods with a non-infringing, functionally-equivalent alternative. Badlands has the right to approve controlling counsel for any tendered claim, such approval not to be unreasonably withheld (and which approval may be withheld or withdrawn if there is a conflict of interest). Supplier shall not enter into any settlement of claims requiring Badlands to admit liability, pay money, or take (or refrain from taking) any action without Badlands’s prior written consent.
15. Insurance. During the term of the Agreement, Supplier shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability), workers compensation insurance as required by law, including employer’s liability coverage; and additional coverages as Badlands may require, in a sum no less than Badlands may require with financially sound and reputable insurers. Upon Badlands’s request, Supplier shall provide Badlands with a certificate of insurance from Supplier’s insurer evidencing the insurance coverage specified in the Agreement. The certificate of insurance shall name Badlands as an additional insured. Except where prohibited by law, Supplier shall require its insurer to waive all rights of subrogation against Supplier, its insurers, and the Indemnitees and be primary to any coverage of Supplier.
16. Sanctions and Export Controls Compliance. Supplier represents, warrants, and guarantees that, with respect to all dealings and transactions conducted under or in relation to the Agreement or any Purchase Order, including but not limited to, production, subcontracting, and materials sourcing, Supplier shall comply with all applicable sanctions and export controls laws, rules, and regulations, including, at a minimum, those administered by the United States Department of the Treasury, the United States Department of Commerce, the United States Department of State, the European Union (“EU”), the United Kingdom (“UK”), and the United Nations (each, a “Sanctions Authority”). Supplier further represents, warrants, and guarantees that, with respect to all dealings and transactions conducted under or in relation to the Agreement or any Purchase Order: (a) Supplier shall not engage in dealings with Sanctioned Parties; (b) Supplier shall not engage with materials produced by Sanctioned Parties or in Sanctioned Countries; (c) Supplier shall not source goods or materials produced by forced or convict labor, or by North Korean nationals, wherever located; (d) Supplier shall maintain policies and procedures to ensure sanctions compliance, at a minimum, including sanctions screening for all sub-suppliers; and (e) Supplier shall indemnify and defend Badlands against any claims arising by reason of Supplier’s failure to comply with this provision and/or Supplier’s failure to cooperate with the applicable agency(ies) as required pursuant to the foregoing. For purposes of this provisions, “Sanctioned Parties” shall be defined to include: (f) a party that appears on the Office of Foreign Assets Control's (“OFAC”) Specially Designated Nationals and Blocked Persons List, including blocked governments (currently including the Governments of Cuba, Iran, North Korea, Syria, and Venezuela), the OFAC Consolidated List, the EU Consolidated List, the UK Consolidated List of Financial Sanctions Targets, the US Department of Commerce Bureau of Industry and Security’s Entity List, Unverified List, or Denied Persons List, or is otherwise designated as a party with whom business is restricted or prohibited by a Sanctions Authority; (g) the government, including any political subdivision, agency, or instrumentality thereof, of any country against which a Sanctions Authority maintains comprehensive economic sanctions or an embargo, which currently include the Crimea region of Ukraine, Cuba, Iran, North Korea and Syria (“Sanctioned Country”); (h) a natural person ordinarily resident in, or entity registered in or established under the jurisdiction of, a Sanctioned Country; (i) a party acting or purporting to act, directly or indirectly, on behalf of, or a party owned or controlled by, any of the parties listed in clauses (f), (g), or (h).
17. Compliance with Law. In connection with the Agreement, Supplier and its personnel and contracts shall comply with all applicable laws, regulations, and ordinances, including anti-bribery laws (such as the U.S. Foreign Corrupt Practices Act of 1977 and the UK Bribery Act of 2010), conflict minerals laws, employment laws, import/export laws, materials disposal laws, and data protection laws (including the requirements of Attachment A). Supplier has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under the Purchase Order. Upon request, Supplier will provide a complete and accurate conflict mineral report detailing the source and chain of custody of conflict minerals. Supplier will comply with all applicable anti-human trafficking, forced labor, and modern slavery laws and rules. Supplier will take reasonable steps to ensure that no slavery, servitude, forced or compulsory labor, or human trafficking occurs in its provision of Goods or supply chain.
18. Equal Employment Opportunities. Badlands is an equal opportunity employer and federal contractor or subcontractor. Consequently, as applicable, the parties will abide by the requirements of 41 CFR 60-1.4(a), 41 CFR 60-300.5(a), and 41 CFR 60-741.5(a) which are incorporated into the Agreement by reference. These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. These regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or veteran status. As applicable, the parties will also abide by the requirements of Executive Order 13496 (29 CFR Part 471, Appendix A to Subpart A), relating to the notice of employee rights under federal labor laws and 41 CFR 61-300.10 regarding veteran’s employment reports.
19. Records. Supplier will maintain in reasonable detail accurate records relating to the Agreement. For a period of one year after the date of each Purchase Order, Badlands and its agents may audit Supplier’s relevant records to confirm compliance with the Agreement.
20. Termination. Badlands may terminate the Agreement upon written notice if Supplier materially breaches any other provisions of the Agreement and fails to remedy that breach within ten (10) days after written notice. Badlands may terminate the Agreement for convenience upon thirty (30) days written notice. Termination of the Agreement terminates all outstanding Purchase Orders effective as of the termination notice date.
21. Waiver. Neither party will be treated as having waived any rights by not exercising or delaying the exercise of any rights under the Agreement.
22. Confidential Information. All non-public, confidential or proprietary information of Badlands, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, 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,” in connection with the Agreement is confidential, solely for the use of performing the Purchase Order and may not be used for any other purpose, disclosed or copied unless authorized by Badlands in writing. Upon Badlands’s request, Supplier shall promptly return all documents and other materials received from Badlands. Badlands shall be entitled to injunctive relief without need to post a bond for any violation of this Section.
23. No Assignment; No Subcontracting. Neither party may assign any part of the Agreement, without the written consent of the other, except that Badlands may assign any rights or obligations under the Agreement to its parent or an affiliate. Supplier may not delegate or subcontract any of its obligations under the Agreement without Badlands’s written consent. Supplier will remain liable for all subcontracted obligations and all acts or omissions of its subcontractors.
24. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from the Agreement.
25. No Third-Party Beneficiaries; Change of Control. The Agreement is for the sole benefit of the parties hereto and does not confer on any third party. If Supplier experiences a change of control, Supplier will give written notice to Badlands within thirty (30) days after the change of control.
26. Governing Law. Any legal suit, action or proceeding arising out of or relating to the Agreement shall be governed by and construed in accordance Wisconsin law without giving effect to any choice or conflict of law provision and shall be instituted in the federal or state courts of Waukesha County, Wisconsin, and each party hereby irrevocably submits to the personal and exclusive jurisdiction of such courts in any such suit, action or proceeding.
27. Cumulative Remedies. The rights and remedies under this Purchase Order are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
28. Notices. All notices, request, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Purchase Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid) or certified or registered mail (in each case, return receipt requested, postage prepaid). Notices will be treated as given on receipt, as verified by written or automated receipt, and if the party giving the Notice has complied with the requirements of this Section.
29. Severability. If any term (or part of a term) of the Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect.
30. Entire Agreement. The Agreement states all the terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter. Any amendment must be in writing, signed by both parties, and expressly state that it is amending the Agreement. In entering into the Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation, or warranty except those expressly stated in the Agreement.
31. Survival. Supplier's obligation to deliver non-cancelled Goods, and Sections 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29 and 30 will survive any termination of the Agreement.
Under the Agreement, Supplier will not access any information relating to an identified natural person or a directly or indirectly identifiable natural person, including personal data as defined by the EU’s General Data Protection Regulation.