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BROAN-NUTONE LLC
TERMS AND CONDITIONS OF PURCHASE

Effective Date: August 12, 2021
1.            Applicability. The purchase order (“Purchase Order”) together with
these terms and conditions, which are hyperlinked from or referenced in the
Purchase Order or otherwise provided to Seller, collectively constitute a
binding agreement (the “ Agreement”) between Broan-NuTone LLC (Buyer), and the
Seller (as each is shown on the face of the Purchase Order), and apply to all
purchases of products (“Products”) and services (“Services” and together with
the Products, “Ordered Items”) by Buyer from Seller, as such Ordered Items may
be described on the face of the Purchase Order. In the event of any conflict
between the Agreement and any other document or instrument submitted by Seller,
the Agreement will govern. Seller must reject Purchase Orders within three days
of receipt or the Agreement will be deemed accepted by Seller. Buyer expressly
limits acceptance of the Agreement to the terms stated herein. Any additional,
different, or inconsistent terms or conditions contained in any form,
acknowledgment, acceptance, or confirmation used by Seller in connection with
the implementation of the Purchase Order are hereby objected to and rejected by
Buyer, however such proposal does not operate as a rejection of the Agreement
(unless such variances are in the terms of the description, quantity, price or
delivery schedule of the Ordered Items), but will be deemed a material
alteration thereof, and the Agreement shall be deemed accepted by the Seller
without any additional, different or inconsistent terms. As an exception to the
foregoing, any written agreement between Buyer and Seller in effect at the time
Buyer submits a Purchase Order that contains terms and conditions that are
inconsistent with these terms and conditions will have priority over these terms
and conditions.

2.            Shipment and Delivery; Alternate Source.
a.            All Products must be (i) suitably packed or otherwise prepared by
Seller for shipment to prevent damage, to obtain the lowest transportation and
insurance rates, and to meet the carrier’s requirements, and (ii) shipped in
accordance with the instructions on the Purchase Order. Expenses incurred due to
failure to comply with these terms are the responsibility of Seller. Seller’s
name, complete ship to address and Purchase Order number must appear on all
invoices, bills of lading, packing slips, cartons and correspondence. Bills of
lading must be attached to invoices submitted, showing carrier, number of
cartons and weight and date of shipment. Packing slips must accompany all
shipments listing contents of shipment in detail.

b.            Title to and all risk of loss or damage to Products remains with
Seller until receipt by Buyer of conforming Products at the required destination
(FCA per INCOTERMS 2010 if shipment is international). Time is of the essence.
Deliveries are to be made only in the quantities and at the times specified in
the Purchase Order (Delivery terms FCA per INCOTERMS 2010 if shipment is
international). If delivery is not expected to be made on time, Seller must
immediately notify Buyer and take reasonable steps, at its cost, to expedite
delivery. Buyer may cancel any order if delivery is not made on time or if
notice is given that a delivery is expected to be late.

c.             If Seller fails to make delivery in conformity with the terms and
conditions of the Agreement, Buyer may reject any delivery or cancel all or any
part of any Purchase Order. Such a failure includes any failure of Products to
conform to the specifications (“Specifications”) and performance criteria
published by Seller for Products. If Buyer accepts any non-conforming delivery,
that acceptance shall not constitute a waiver of Buyer’s right to reject future
deliveries. If any of the following occur, Buyer may, in its sole discretion,
purchase Products from another supplier as an alternate source as Buyer, in its
sole discretion, deems necessary: Seller (i) fails to supply Products, (ii)
fails to supply Products meeting Specifications, or (iii) fails to meet Buyer’s
delivery schedules and delivery requirements, and Seller does not provide a
comparable quality substitute (for which substitution Seller must assume any
expense and price differential). Additionally, in such event, Seller shall
reimburse Buyer for any additional costs and expenses incurred by Buyer in
purchasing Products from such other supplier as an alternate source. When
defective products or nonconforming shipments are identified by and/or
communicated to Buyer, Buyer shall receive full credit either for scrap or
return, which credit will include full costs paid to Seller, together with
shipping, processing and related costs, if applicable. Within one week of the
shipment of the defective Product, Seller shall submit to Buyer a written
explanation of the root cause and corrective actions implemented to prevent
reoccurrence.

3.            Prices; Payment. Prices for all Ordered Items will be as stated in
the Purchase Order, and include all applicable federal, state, provincial and
local taxes; provided, however, that in no event will the price charged by
Seller under the Agreement be less favorable than the lowest price charged by
Seller to other customers purchasing similar or lesser quantities of the Ordered
Items. Payment terms for all Ordered Items will be as stated in the Purchase
Order, except no invoices shall be paid unless the applicable Products are
received by Buyer. Buyer shall be entitled to set off any amounts owing at any
time from Seller to Buyer or any of its affiliated companies against any amount
payable at any time by Buyer or such affiliates in connection with the
Agreement.

4.            Inspection/Testing. Payment for the Ordered Items does not
constitute acceptance thereof. Buyer has the right to inspect all Ordered Items
and to reject any or all Ordered Items that are in Buyer's judgment defective or
nonconforming. Buyer may request, at its option, repair or replacement of
rejected Ordered Items or a refund of the purchase price. Ordered Items supplied
in excess of the quantities specified in the Purchase Order may be returned to
Seller at Seller's expense. Buyer reserves the right to use rejected materials,
as it believes advisable or necessary to meet its contractual obligations to
customers, without waiving any rights against Seller. Nothing contained in the
Agreement relieves Seller from the obligation of testing, inspection and quality
control.

5.            Confidentiality and Proprietary Rights. Any specifications,
drawings, sketches, models, samples, tools, technical information, methods,
processes, techniques, shop practices, plans, know-how, trade secrets, or data,
written, oral or otherwise (collectively, the “Information”) furnished to Seller
under, or in contemplation of, the Agreement remain Buyer's property. All copies
of such Information, in written, graphic or other tangible form, must be
immediately returned to Buyer upon its request. The Information shall be kept
confidential by Seller, shall be used only in the fulfillment of Purchase
Orders, or in performing Seller’s obligations under the Agreement, and may be
disclosed or used for other purposes only upon such terms as may be agreed upon
between Buyer and Seller in writing.

Seller hereby grants to Buyer a perpetual, transferable and royalty-free license
to use, sell, offer for sale, import, distribute, advertise, market and promote
Products (including through packaging, repackaging, labeling, bundling and
documentation) that incorporate in whole or in part the patent, copyright,
trademark, trade dress or other intellectual property rights of Seller. Seller
hereby assigns to Buyer, and not otherwise to make use of, any invention,
improvement or discovery (whether or not patentable), conceived or reduced to
practice in the performance of the Agreement by Seller or any employee of Seller
or any other person working under Seller's direction, and such assignment shall
be considered as additional consideration for the making of the Agreement. Upon
request of Buyer or completion of performance of the Agreement, Seller shall
deliver to Buyer any and all information relating to any such invention,
improvement or discovery, and shall cause employees or others subject to
Seller's instruction to sign as appropriate all documents necessary to enable
Buyer to file applications for patents throughout the world and to obtain title
thereto.

6.            Warranties. Seller represents and warrants that: (a) all Ordered
Items and Seller's performance under the Agreement will (i) conform to all
applicable drawings, specifications, descriptions, and samples furnished to or
supplied by the Seller, (ii) be free from defects in design, material, and
workmanship, and (iii) be in compliance with all then applicable laws (whether
foreign or domestic), including without limitation laws related to the health
and safety of consumers and the protection of the environment and child labor
laws; (b) the Ordered Items (including packaging, labeling and documentation)do
not infringe upon or violate any intellectual property, right of privacy or
other proprietary or property right of any third party; (c) it has the right to
grant Buyer a license to any software embedded or incorporated into any Ordered
Items; (d) all Services will be performed in a workmanlike manner; and (e) it
has complied and shall comply with all laws applicable to its performance under
the Agreement. EXCEPT AS EXPRESSLY PROVIDED HEREIN, SELLER MAKES NO EXPRESS OR
IMPLIED WARRANTIES UNDER THE PURCHASE ORDER AND EXCLUDES ALL IMPLIED WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

7.            Termination. Buyer may terminate the Agreement in whole or in part
upon 15 days’ written notice to Seller. If Seller defaults in the performance of
its obligations under the Agreement and is unable to cure the default within 10
days following notice of the default, Buyer may terminate the Agreement upon
written notice. Upon the termination of the Agreement, in whole or in part, by
Buyer for any reason, Seller shall immediately (a) stop all work under the
terminated Agreement, (b) cause any of its suppliers or subcontractors to cease
work, and (c) preserve and protect work in progress and materials on hand
purchased for or committed to under the Agreement in its own and in its
suppliers' or subcontractors' plants pending Buyer's instructions. Buyer shall
not owe Seller any lost profit or payment for any materials or Products that
Seller may consume or sell to others in its ordinary course of business.

8.            Indemnity. Seller shall defend, indemnify and hold harmless Buyer,
its affiliates, officers, employees and agents against all claims, damages,
liability, losses, fines, or judgments, including costs, attorney fees, and
other expenses, relating to or arising out of (a) Seller’s breach of the
Agreement; (b) death or injuries to persons or property due to Seller’s breach
of the Agreement; (c) the failure of the Products or Seller's performance of the
Services to comply with the requirements of the Agreement, or (d) infringement
of a third party’s intellectual property rights by any Products (including
packaging, labeling and documentation) or Services.

9.            Catastrophic Defects. Seller shall, within 30 days of Buyer's
demand, indemnify Buyer or its designated third party service provider for all
costs and expenses of parts, labor, administrative costs, shipping costs,
replacement product costs and other expenses (including reasonable attorneys’
fees and expenses) related to or arising from a Catastrophic Defect, Product
recall or Product field fix. “Catastrophic Defect” will be deemed to occur when:
(a) the representations and warranties set forth in Section 6 are breached with
respect to (i) 3% or more of the Products shipped within any three-month period,
or (ii) 1% of the Products shipped within the first six months of the initial
agreement between Seller and Buyer; (b) the return and exchange rate of the
Product sold by Seller to Buyer is in excess of the category average for the
Product, as determined by Buyer’s records; (c) a single or single group of
defects in a Product (any manufacturing defect that affects the Product
cosmetically or functionally) is determined by Buyer to impact more than 10% of
such Products; (d) a Product (including any service parts, replacement parts,
spare parts, assemblies and tools required for servicing Products) recall is
necessary in the reasonable opinion of Buyer or Seller; or (e) the Product
should be pulled from the marketplace to comply with applicable law as
determined by Buyer in its sole discretion (including but not limited to, cases
of a voluntary or mandatory consumer product safety recall); provided, however,
that no Catastrophic Defect will be deemed to occur if the applicable defect
results solely from an act or omission of Buyer.

10.          Insurance. Seller shall at all times maintain commercial general
liability insurance, including products and completed operations liability, with
limits and in the form as requested by Buyer, and workers' compensation
insurance as required by law. At Buyer's request, Seller shall have Buyer added
as an additional insured on the commercial general liability insurance policy
and shall furnish Buyer with a certificate of insurance and applicable insurance
policy endorsements evidencing such insurance.

11.          Limitation of Liability. In no event shall Buyer's aggregate
liability for any loss or damage arising out of or in connection with or
resulting from the Agreement exceed the price allocable to the Products or
Services or unit thereof which gives rise to the claim. Buyer shall not be
liable for interest charges or penalties of any description. No lawsuit may be
brought against Buyer on account of any breach by Buyer unless the suit is
instituted within two years of the date of the breach.

12.          Governing Law. The Agreement and all rights and duties under the
Agreement are governed by, and construed in accordance with, the laws of the
State where Buyer's principal office is located. The United Nations Convention
on Contracts for the International Sale of Goods does not apply. Buyer shall
have all rights and remedies granted it by the Uniform Commercial Code, without
exclusion or limitation. Buyer's rights under the Agreement are in addition to
any other legal or equitable remedies it may have against Seller. The parties
hereby irrevocably consent to exclusive jurisdiction of, and venue in, State or
Federal court in the State where Buyer's principal office is located.

13.          Supplier Manual. By processing this Purchase Order, Seller
understands and agrees to abide by the Broan-NuTone Supplier Manual located at
http://www.broan-nutone.com/suppliernet/.  The Supplier Manual is incorporated
by reference into this Agreement and may be modified from time to time at
Buyer’s sole discretion.
 
14. Compliance Matters. Seller must comply with all Buyer policies applicable to
and provided to Seller, and with all applicable statutes, laws and regulations
(“Laws”), including without limitation, all applicable environmental, health and
safety, trade, and import/export Laws. Buyer shall evaluate its supplier
relationships on an ongoing basis to ensure continued compliance. Seller shall
promptly comply with Buyer’s requests for information including, but not limited
to, compliance with Conflict Mineral laws, Prop 65, REACH, RoHS, EPA or other
compliance requirements
 
15. Anti-Corruption. Seller shall at all times conduct its activities in
accordance with all applicable laws, rules, regulations and orders related to
anti-bribery or anti-corruption legislation including, but not limited to, the
U.S. Foreign Corrupt Practices Act of 1977 and all national, state, provincial
or territorial anti-bribery and anti-corruption statutes. Accordingly, Seller
shall make no offer, payment or gift, will not promise to pay or give, and will
not authorize, directly or indirectly, the promise or payment of, any money or
anything of value to any Buyer employee or agent, any government official, any
political party or its officials, or any person while knowing or having reason
to know that all or a portion of such money or item of value will be offered,
given or promised for the purpose of influencing any decision or act to assist
Seller or Buyer or otherwise obtaining any improper advantage or benefit.
 
16. General. The invalidity of any provision contained in the Agreement will not
affect the validity of any other provision. Buyer's failure to insist on
performance of any term or condition or to exercise any right or privilege shall
not waive any such term, condition, right or privilege. The Agreement may be
amended or modified only by a written instrument separately signed by Buyer or
Seller. Seller shall not subcontract or assign its rights and obligations under
the Agreement, in whole or in part, without Buyer's consent. The provisions of
Sections 5-9, 11, 12 and 15 survive termination of the Agreement.
 
 
 

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