Terms of Purchase
THIS PURCHASE ORDER IS SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS
1. DEFINITION: “Supplies” means the goods, works, materials or services furnished hereunder to Buyer.
2. BILLING AND SHIPPING: All Supplies shall be suitably packed, marked and shipped in accordance with the requirements of common carriers in a manner to secure the lowest transportation cost, while providing adequate protection for the purchased Supplies, and no additional charge shall be made to the Buyer therefore unless otherwise stated on the purchase order hereof.
All invoices will be paid on the basis of the terms of payment indicated on this purchase order. Payment date shall be determined from the later of the delivery date or the invoice date, provided that invoices covering materials shipped prior to the specified date will not be paid unless otherwise agreed until their normal maturity after the date specified for delivery.
3. ACCEPTANCE: This purchase order constitutes Buyer’s offer to Seller and shall become a binding contract subject to the terms and conditions set forth herein upon Seller’s acceptance either by written acceptance or by the commencement of requested performance followed by timely notice thereof to Buyer. Acceptance of the purchase order is expressly limited to the terms hereof and any variance from those terms shall not be binding on the Buyer unless agreed to in writing by Buyer. This purchase order, when accepted, contains the entire agreement of the parties, which agreement may not be modified except by written agreement of both parties. Any specifications referred to in this purchase order are incorporated herein and made a part hereof as though fully set forth.
By acceptance of this purchase order, Seller agrees that the prices contained herein are not in excess of Seller’s list, catalog or published prices; that such prices are not higher than prices charged to other purchasers for similar materials or equipment, and that the said prices are not in excess of the prices provided by any applicable law, government decree, order or regulation.
4. DELIVERY: Seller hereby acknowledges that time is of the essence in the performance of this contract and except as herein specified, delivery shall be strictly in accordance with the delivery schedule. If Seller’s deliveries fail to meet such schedule with the result that Buyer elects to call upon Seller for Air Express shipments, Seller shall pay the difference between freight and Air Express rates.
5. DELAYS AND DEFAULTS: Seller shall not be liable for delays or defaults in furnishing Supplies hereunder, and Buyer shall not be liable for failure to accept same if such delays or defaults on the part of Seller, or such failure on the part of Buyer, are due to (1) acts of God or public enemy, (2) acts of
United States or any state or political subdivision thereof, (3) fires, floods, explosions or other catastrophes, (4) epidemics and quarantine restrictions, (5) strikes, slowdowns, or labor stoppages of any kind, (6) freight embargoes, (7) unusually severe weather, (8) delays of a supplier due to such causes, or
(9) causes beyond the control and without the fault or negligence of Seller and in furnishing Supplies or of Buyer in accepting Supplies hereunder, provided that when the Seller has reason to believe that deliveries will not be made as scheduled, written notice setting forth the cause of the anticipated delay shall be given immediately to Buyer.
6. NOTICE OF LABOR DISPUTES: Whenever Seller has knowledge that any actual or potential labor dispute is delaying or threatens to delay the timely performance of this purchase order, Seller shall immediately give notice thereof, including all relevant information with respect thereto to Buyer.
7. WARRANTY: THE SELLER EXPRESSLY WARRANTS THAT THE SUPPLIES COVERED BY THIS PURCHASE ORDER SHALL BE FREE FROM DEFECT IN MATERIAL AND WORKMANSHIP, SHALL BE FIT AND SUFFICIENT FOR THE PURPOSE FOR WHICH THEY ARE INTENDED AND SHALL CONFORM TO SPECIFICATIONS, DRAWINGS, OR DESCRIPTIONS HEREIN SET FORTH OR FURNISHED BY BUYER. THE WARRANTIES AND REMEDIES PROVIDED FOR HEREIN SHALL BE IN ADDITION TO THOSE IMPLIED BY LAW AND SHALL EXIST NOTWITHSTANDING THE ACCEPTANCE BY THE BUYER OF ALL OR PART OF THE SUPPLIES IN RESPECT TO WHICH SUCH WARRANTIES AND REMEDIES ARE
APPLICALBE. THE WARRANTIES OF SELLER SHALL RUN TO BUYER AND/OR ITS CUSTOMERS.
NEITHER ACCEPTANCE OF THE SUPPLIES PURCHASED HEREBY NOR ANY INSPECTIONS THEREOF SHALL WAIVE ANY BREACH OF WARRANTY WHETHER EVIDENT AT SUCH TIMES OR NOT.
8. INDEMNITY: Seller shall indemnify Buyer against liability and hold Buyer harmless from any and all claims, demands, suits, proceedings, actions, costs, damages, and expenses arising out of, connected with or resulting from the use of the Supplies.
9. INSPECTIONS: All Supplies are subject to final inspection and approval at Buyer’s plant or other places designated by Buyer in writing notwithstanding prior inspections. Such inspection shall be made within a reasonable time after delivery. Payment for any item hereunder shall not be deemed an acceptance hereof. Buyer reserves the right to reject and refuse acceptance of Supplies which are not in conformity with the instructions, specifications, drawings and data or Seller’s warranty (express or implied) and to return said Supplies at Seller’s expense. Seller shall not replace or correct Supplies defective unless so directed by Buyer in writing. Inspection cost for Supplies found to be defective shall be charged to Seller. If Seller received a written direction from Buyer to correct the defect, Seller shall promptly correct the defect in the time frame required by Buyer. In addition, Seller shall be responsible for all costs resulting from the defective Supplies, including, without limitation, the following: Rework, material, labor, and freight incurred in repairing the Supplies and all other components damaged as a result of the defect.
10. TERMINATION:
A. For Default
1) Buyer may terminate this purchase order, any part thereof, by written notice of default to Seller under any of the following circumstances:
a) If Seller fails to perform within the time specified.
b) If Seller fails to comply with other provisions of this purchase order and does not cure any such failure within a period of ten (10) days after receipt of notice from Buyer specifying such failure.
c) If Seller becomes insolvent or makes a general assignment for the benefit of creditors or files or has filed against it a petition of bankruptcy or for reorganization, or pursues any other remedy under any other law relating to the relief for debtors or in the event a receiver is appointed for Seller’s property or business.
2) In the event of such termination, Buyer may purchase or manufacture similar Supplies and/or require Seller to transfer title and deliver to Buyer any and all property produced or procured by Seller under this purchase order and Seller shall be liable to Buyer for any excess cost to Buyer.
B. Any termination by Buyer, whether for default or otherwise shall be without prejudice to any claims for damages or other rights of Buyer against Seller.
C. Seller shall continue performance of this purchase order to the extent not terminated. Any provisions for delivery or acceptance of the Supplies in installments shall not make severable the obligations of the Seller.
D. In addition to the foregoing, Buyer may terminate this purchase order, in whole or in part, by giving Seller at least thirty (30) days advance written or electronic notice. Upon receipt of such notice, Seller shall stop work immediately and promptly terminate all orders and subcontracts insofar as they relate to this purchase order. Within thirty (30) days after termination, Seller may submit to Buyer its written claim for any charges due to Seller. Failure to submit the claim within this time of period will constitute a waiver of all Sellers’ claims arising out of the termination. Nothing in this paragraph shall limit Buyer’s right to challenge, where appropriate, the validity of any such claimed charges.
11. PATENTS: Unless the design for the articles shall have been furnished by the Buyer to the Seller, and used by the Seller in manufacturing the Supplies, the Seller agrees to hold harmless and indemnify the Buyer from and against any and all suites, claims, judgments and costs of any kind or character whatsoever instituted, made or recommended against the Buyer for any alleged infringement of any patent or copyright by any person or persons whomsoever, on account of the manufacture, sale or use the Supplies covered by this purchase order in violation of any right or rights claims under any such patents or copyrights, provided that the Seller is notified in writing promptly after such claim is made.
12. COMPLIANCE WITH LAW: Seller guarantees that in the performance of this purchase order it will comply with the provisions of all applicable federal, state and local laws, regulations, rules and orders. Seller represents that the Supplies to be furnished pursuant to this purchase order were or will be produced in compliance with the requirements of the Fair Labor Standard Act of 1938, as amended, Executive Order 11246, as amended, all equal opportunity laws and regulations, and all applicable employment laws and regulations. Seller guarantees that it will comply with all export laws and regulations of the United States and any other applicable jurisdiction.
13. TECHNICAL DATA: All drawings, specifications and other technical data or information furnished by Buyer hereunder shall remain the property of Buyer and shall not be disclosed to others or used for manufacturing purposes, for other than Buyer’s order, without Buyer’s prior written permission.
14. REMEDIES: The remedies reserved in this purchase order shall be cumulated and additional to any other or further remedies provided in law or equity.
15. INCONSISTENCIES: In the event the printed conditions hereof are inconsistent with the typed, stamped and/or written provisions on the purchase order hereof, the written, stamped and/or typed provisions shall govern.
16. ASSIGNMENT: Seller shall not assign this purchase order or any monies due or to become due hereunder unless so permitted by the prior written provision on the purchase order hereof without written consent of Buyer.
17. INFORMATION: Seller agrees that none of the details connected with this purchase order shall be published or disclosed to any third party (except as is necessary for performance of this purchase order) without Buyer’s written permission.
18. TAXES: Federal, state or local taxes of any nature which are billed to Buyer shall be stated separately in Seller’s invoice.
19. GOVERNING LAW: The contract resulting from acceptance of this purchase order is to be construed and governed according to the laws of the State of Ohio.
20. NON-WAIVER: No waiver of any provision or waiver of any failure to perform any provision of this purchase order shall be effective unless consented to by Buyer in writing, nor shall such waiver constitute a waiver of any provision or failure to perform.
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