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Liberty Safe

Vendor Purchase Terms and Conditions

1. ACCEPTANCE

These terms and conditions (the “Terms and Conditions”) are the exclusive and binding agreement between the parties governing the purchase of products and services pursuant to any purchase order issued by Buyer (each, an “Order”). As used herein, “Buyer” means the entity issuing the Order and “Seller” means the entity to whom the Order is issued. The Order may be accepted only on these Terms and Conditions. Additional or different terms and conditions proposed by Seller will not be applicable and are hereby rejected unless expressly accepted in writing by Buyer’s duly authorized purchasing representative or company officer. The Order shall be deemed accepted by Seller on the earlier of: (a) the date that Seller provides Buyer with written acceptance of the Order, (b) the date that is three (3) business days after Seller’s receipt of the Order, or (c) Seller’s commencement of performance. Acceptance of the products or services delivered under the Order shall not constitute acceptance of Seller’s terms and conditions.

2. INSOLVENCY AND CHANGES IN BUSINESS

If Seller shall cease to conduct its operations in the normal course of business (including due to its inability to meet its obligations or pay its indebtedness as they mature), sells or transfers a substantial part of its assets, or if any proceedings under bankruptcy or insolvency laws are brought by or against Seller, or a receiver for Seller or for a substantial part of its assets is appointed or applied for, or an assignment is made for the benefit of creditors of Seller, Buyer may immediately terminate the Order without liability  except for conforming goods previously delivered and accepted. Buyer may also suspend performance of or terminate the Order without liability in the event of fires, strikes, epidemics, pandemics, war, acts of God, any acts or demands of any governmental authority, civil unrest, supply chain disruptions, or any other causes beyond Buyer’s reasonable control that affect (i) Buyer’s business, operations, or demand for the goods or services;  (ii) Seller’s ability to deliver the Order; or (iii) the specific Order.

3. CHANGES

The Buyer reserves the right at any time to change by written notification any of the following: 

  • specifications, drawings, and data incorporated in the Order where the items to be furnished are to be specially manufactured for the Buyer; 
  • quantity of products, goods, or materials purchased;
  • methods of shipment, labeling, or packing; 
  • place of delivery; 
  • time of delivery; or 
  • any other matters affecting the Order in the reasonable discretion of Buyer.

If such changes cause a material increase or decrease in Seller's costs or time of performance, Seller shall notify Buyer in writing within five (5) business days of receipt of such change, and the parties shall negotiate in good faith an equitable adjustment of the price or delivery schedule. Any claim by Seller for adjustment under this clause shall be deemed waived unless asserted in writing within seven (7) days from Seller’s receipt of the change. Seller shall not make any changes or substitutions to materials, specifications, or quantities specified in the Order without Buyer’s prior written consent, which may be withheld in Buyer’s sole discretion.

4. SEVERABILITY

If any part, term, or provision of these Terms and Conditions is held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the validity of the remaining portions or provisions shall not be affected, and such remaining portions shall be construed and enforced as if these Terms and Conditions did not contain the particular part, term, or provision held to be invalid. The parties shall negotiate in good faith to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.

5. NONDISCLOSURE

If Buyer discloses or grants Seller access to any research development, technical, economic, or other business information or know-how of a confidential nature, whether or not reduced to writing and whether or not marked as confidential (“Confidential Information”), Seller shall, as a condition to receiving such Confidential Information, hold such Confidential Information in strict confidence and not use, disclose, or permit access to such Confidential Information except as strictly necessary to perform the Order or with Buyer’s prior written consent. Seller may disclose Confidential Information only to those of its employees, agents, and subcontractors who have a need to know such Confidential Information for the performance of the Order and who are bound by written confidentiality obligations at least as protective as those set forth herein. Seller shall use Confidential Information solely for the purpose of performing the Order and shall protect such Confidential Information using at least the same degree of care it uses to protect its own confidential information of a similar nature, and in no event less than a reasonable standard of care. Seller shall be fully responsible for any unauthorized use, disclosure, or breach of this Section 5 by Seller or any of its employees, agents, subcontractors, or other representatives, including any disclosure to a third party not expressly permitted under the Order or these Terms and Conditions. Seller shall promptly notify Buyer of any actual or suspected unauthorized use or disclosure of Confidential Information and shall cooperate with Buyer to mitigate and remediate the same. Upon Buyer’s request, or upon completion or termination of the Order, Seller shall promptly return or destroy all Confidential Information and certify in writing that it has done so. Seller’s obligations under this Section 5 shall survive termination of the Order for five (5) years; provided, however, that with respect to any Confidential Information constituting a trade secret, such obligations shall continue for so long as such information remains a trade secret under applicable law.

6. DELIVERY AND PERFORMANCE

  • Time is of the essence with respect to all of Seller’s obligations under the Order. Seller shall furnish sufficient labor, management, plant, and equipment, and shall work such hours (including night shifts, overtime, weekend, and holiday work) as may be required to ensure timely delivery. Seller shall notify Buyer immediately, but in no event later than one (1) business day, upon Seller’s knowledge of any actual or anticipated delay in shipment, together with a remediation plan.
  • Unless otherwise specifically provided in the Order, the product called for hereunder shall be delivered on an F.O.B. destination basis and title and risk of loss shall pass to Buyer upon delivery to Buyer's specified destination.
  • Buyer may cancel any deliveries not made as specified, including lot deliveries, and, at Buyer’s option, may return nonconforming deliveries to Seller at Seller’s sole cost and expense, including all freight, handling, and restocking charges.
  • Goods and products supplied by Seller will be subject to Buyer's inspection and approval within ten (10) business days after delivery, notwithstanding any prior payment or inspection. If goods are rejected, Buyer, at its sole option and at the sole expense and risk of Seller, may: (i) return rejected goods to Seller; (ii) store them at Seller’s expense until Seller provides instructions for disposal;  (iii) require Seller to repair or replace the goods at Seller’s expense within a time period specified by Buyer;  or (iv) procure replacement goods from a third party and charge Seller for all costs incurred. Payment for goods without reasonable opportunity to inspect shall not constitute acceptance.

7. GRATUITIES

Seller represents and warrants that neither Seller nor any of its officers, directors, employees, agents, or representatives has offered, given, or received any gift, gratuity, or thing of value in connection with any Order. If at any time Buyer determines, in its sole discretion, that Seller is in violation of this representation, Buyer may immediately terminate the applicable Order upon written notice to Seller, and Buyer shall have no further obligation to Seller, including for goods delivered or in progress.

8. INDEMNITY

Seller shall defend, indemnify, and hold harmless Buyer, its parent, subsidiaries, affiliates, and their respective officers, directors, employees, agents, successors, and assigns from and against any and all claims, damages, losses, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to: (a) any defect in materials or products furnished under the Order; (b) any noncompliance with applicable laws, including OSHA standards; (c) any claim for personal injury, death, or property damage; (d) any breach of the Order by Seller; (e) any negligent or willful act or omission of Seller or its employees, agents, or subcontractors; or (f) any claim that the goods or services infringe any intellectual property right of any third party. Seller shall assume the defense of any such claim immediately upon Buyer’s request and shall not settle any claim without Buyer’s prior written consent. Seller hereby expressly waives any immunity from suit by Buyer that may be conferred by workers' compensation laws or any other law. Seller’s indemnification obligations are independent of, and not limited by, any insurance required herein. In addition, if any of the goods or services, or any part thereof, provided pursuant to the Order infringes any intellectual property right of any third party, or is alleged in any claim to infringe any intellectual property right of any third party, Seller will, at its own expense, either procure for Buyer, its successors, assigns, and customers the right to continue using such goods or services or any part thereof, or replace them with a substantially equivalent non-infringing good or service, at no cost to Buyer, its successors, assigns, and customers.

9. INSURANCE

Prior to acceptance of the Order, Seller shall obtain and maintain, at its sole cost and expense, the following minimum insurance coverage: (a) commercial general liability insurance with limits of not less than $1,000,000 per occurrence and $2,000,000 aggregate; (b) workers’ compensation insurance as required by law; (c) employers’ liability insurance with limits of not less than $1,000,000; and (d) if applicable, professional liability and product liability insurance with commercially reasonable limits. Seller shall cause Buyer to be named as an “Additional Insured” under all such policies (except workers’ compensation) and provide Buyer with certificates of insurance and policy endorsements evidencing such coverage before performance is commenced. All policies shall be primary and non-contributory and shall provide that coverage shall not be reduced, non-renewed, or cancelled without at least thirty (30) days’ prior written notice to Buyer. Seller’s insurance shall not limit Seller’s indemnification obligations.

10. REPRODUCTION OF SELLER MATERIALS

Buyer shall have the right, at no additional charge, to use and/or reproduce Seller’s applicable literature, such as operating and maintenance manuals, technical publications, prints, drawings, training manuals, and other similar supporting documentation and sales literature. Seller shall advise Buyer of any updated information relative to the foregoing literature and documentation with timely notification in writing.

11. PRICES AND PAYMENT

Prices are firm and not subject to escalation for the duration of the Order, regardless of any increase in Seller’s costs. Payment of invoices shall not constitute acceptance of the products and/or services and shall be subject to adjustment for errors, shortages, defects, failure to comply with Section 6 (Delivery and Performance), or any other failure of Seller to meet the requirements of the Order or these Terms and Conditions. Buyer may at any time set off any amount owed by Buyer to Seller against any amount owed by Seller or any of its affiliated companies to Buyer. If the Order does not specify a price, Seller shall fill the Order at prices equal to or less than those last quoted and charged to Buyer for the same goods or services. Charges for boxing, crating, or packaging shall not be paid by Buyer unless otherwise expressly stated in the Order. Goods are purchased on a delivered basis, and all freight charges shall be paid by Seller unless otherwise specified in the Order. Notwithstanding anything to the contrary herein, in no event shall the price for goods or services purchased by Buyer from Seller exceed Seller’s lowest price charged for identical goods or services sold to any other customer.

12. WAIVER

Buyer’s failure to insist on strict performance of any term or condition of the Order shall not be construed as a waiver of Buyer’s right to require strict performance in the future. No waiver by Buyer shall be effective unless in writing and signed by Buyer’s authorized representative. No course of dealing or usage of trade shall modify, supplement, or explain these Terms and Conditions.

13. WARRANTIES

  • Seller expressly warrants that all goods delivered pursuant to the Order shall conform to any sample and any specifications, drawings, or other description furnished or adopted by Buyer. All materials furnished shall be new, of the highest quality, fit and sufficient for their intended purpose, of merchantable quality, of good material and workmanship, and free from defects in design, materials, and workmanship. These warranties shall survive inspection, acceptance, and payment by Buyer.
  • Seller expressly warrants that all goods furnished to Buyer comply with, and if applicable, are manufactured and labeled in strict compliance with, all applicable federal, state, local, and international laws, rules, and regulations, including but not limited to environmental, health, safety, import/export, and labor laws. Without limiting the foregoing, Seller warrants that all materials and products furnished under the Order are in compliance (and shall be certified to be in compliance upon Buyer’s request) with the requirements and standards of the Occupational Safety and Health Act of 1970, as amended, and all regulations thereunder. In addition, where required, hazardous material data sheets shall be supplied on the applicable products, prior to or concurrent with the first shipment.
  • Seller warrants that the goods and services, and Buyer’s use thereof, do not and will not infringe any patent, trademark, copyright, trade secret, or other intellectual property right (whether registered or unregistered) of any third party, anywhere in the world. If any goods or services are held to constitute infringement, Seller shall, at Buyer’s option and at Seller’s sole expense: (a) procure for Buyer the right to continue using such goods or services; (b) replace them with non-infringing equivalents acceptable to Buyer; or (c) refund all amounts paid by Buyer for such goods or services, plus all costs and damages incurred by Buyer.

14. TERMINATION

Buyer may terminate the Order as follows:

  • Immediately upon any default by Seller under the Order, or if Buyer reasonably believes, based on facts and circumstances known to Buyer, that Seller will fail to perform its obligations under the Order on time or in conformity with the requirements of the Order, in each case without notice or cure period.
  • Immediately upon the insolvency of Seller, or the institution of any proceeding by or against Seller in bankruptcy or for the appointment of a receiver or trustee, or any assignment for the benefit of creditors of Seller.
  • Immediately upon (i) any sale, transfer, or other disposition in a single transaction or series of transactions of more than ten percent (10%) of the outstanding stock or other equity interests of Seller, or (ii) any Change of Control of Seller, in each case without Buyer’s prior written consent. For purposes of this clause, “Change of Control” means any transaction or series of related transactions pursuant to which (A) any person or group of persons acting together directly or indirectly acquires beneficial ownership of more than fifty percent (50%) of the voting power or equity interests of Seller, (B) any person or group of persons acting together acquires the power to direct the management or policies of Seller, whether through ownership of voting securities, contract, or otherwise, or (C) Seller consummates a merger, consolidation, reorganization, or sale of all or substantially all of its assets and, immediately after such transaction, the equity holders of Seller immediately prior to the transaction own less than a majority of the voting power of the surviving entity or its parent.
  • For the convenience of Buyer, in whole or in part, upon five (5) days’ prior written notice to Seller, with such termination effective on the date stated in Buyer’s notice.

Upon receipt of such notice of termination, Seller shall promptly comply with the directions contained therein and shall: (i) take action necessary to terminate the work as provided in the notice, minimizing costs and liabilities for terminated work; (ii) protect, preserve, and deliver in accordance with Buyer’s instructions any property related to the Order in Seller’s possession; and (iii) continue the performance of any part of the work not terminated by Buyer.

Buyer may require a financial statement from Seller at any time during the term of the Order to assess Seller’s financial responsibility, and Seller shall provide such statement within ten (10) business days of Buyer’s request. If the Order is terminated by Buyer for convenience, Seller shall be compensated only for conforming goods actually delivered and accepted by Buyer prior to the effective date of termination. In no event shall such compensation exceed the original Order price, and Buyer shall have no liability for work in progress, anticipated profits, or any other damages. If the Order is terminated due to Seller's default, Seller shall be liable for all damages recoverable at law or in equity, including the excess cost of procuring similar goods or services from another supplier, expediting costs, and all consequential and incidental damages. Buyer will not be liable to Seller for any damages on account of Buyer’s failure to accept all of the goods provided pursuant to the Order.

15. ATTORNEYS’ FEES

In the event of any litigation, arbitration, or other proceeding relating to these Terms and Conditions, the prevailing party shall be entitled to recover from the non-prevailing party its reasonable attorneys’ fees, costs, and expenses, including fees incurred on appeal.

16. LIMITATION OF LIABILITY

IN NO EVENT SHALL BUYER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO SELLER’S LOSS OF ACTUAL OR ANTICIPATED PROFITS, ARISING OUT OF OR RESULTING FROM ANY ORDER OR FROM THE PERFORMANCE, SUSPENSION, TERMINATION, OR BREACH THEREOF, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER BUYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BUYER’S TOTAL AGGREGATE LIABILITY UNDER THESE TERMS AND CONDITIONS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY BUYER TO SELLER UNDER THE SPECIFIC ORDER GIVING RISE TO THE CLAIM.

17. GOVERNING LAW; JURISDICTION

These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of laws principles. Each party irrevocably submits to the exclusive jurisdiction and venue of the state and federal courts located in Delaware for any action arising out of or relating to these Terms and Conditions, and waives any objection to such jurisdiction or venue. BUYER AND SELLER EACH WAIVE ANY RIGHT TO A JURY TRIAL.