Purchase Order Terms and Conditions
Acceptance — Agreement Seller's commencement of work on the goods subject to this purchase order or shipment of such goods, whichever occurs first, shall be deemed an effective mode of acceptance of this purchase order. Any acceptance of this purchase order is limited to acceptance of the express terms contained on the face and back hereof. Any proposal for additional or different terms or any attempt by Seller to vary in any degree any of the terms of this offer in Seller's acceptance is hereby objected to and rejected, but such proposals shall not operate as a rejection of this offer unless such variances are in the terms of the description, quantity, price or delivery schedule of the goods, but shall be deemed a material alteration thereof, and this offer shall be deemed accepted by Seller without said additional or different terms. If Seller shall deem this purchase order an acceptance of a prior offer, such acceptance is limited to the express terms contained on the face and on the back hereof. Additional or different terms or an attempt by Seller to vary in any degree any of the terms of this purchase order shall not be deemed material and are objected to and rejected, but this purchase order shall not operate as a rejection of the Seller's offer unless it contains variances in the terms of the description, quantity, price or delivery schedule of the goods.
Termination for Convenience of Purchaser Purchaser reserves the right to terminate this order or any part hereof for its sole convenience. In the event of such termination, Seller shall immediately stop all work hereunder, and shall immediately cause any of its suppliers or subcontractors to cease such work. Seller shall be paid a reasonable termination charge consisting of a percentage of the order price reflecting the percentage of the work performed prior to the notice of termination plus actual direct costs resulting from termination. Seller shall not be paid for any work done after receipt of the notice of termination, nor for any costs incurred by Seller's suppliers or subcontractors which Seller could reasonably have avoided.
Termination for Cause Purchaser may also terminate this order or any part hereof for cause in the event of any default by the vendor or if the vendor fails to comply with any of the terms and conditions of this offer. Late deliveries, deliveries of products which are defective or which do not conform to this order, and failure to provide Purchaser, upon request, of reasonable assurances of future performance shall all be causes allowing Purchaser to terminate this order for cause. In the event of termination for cause, Purchaser shall not be liable to Seller for any amount and Seller shall be liable to Purchaser for any and all damages sustained by reason of the default which gave rise to the termination.
Proprietary Information – Confidentially — Advertising Seller shall consider all information furnished by Purchaser to be confidential and shall not disclose any such information to any other person, or use such information itself for any purpose other than performing this contract unless Seller obtains written permission from Purchaser to do so. This paragraph shall apply to drawings, specifications, or other documents prepared by Seller for Purchaser in connection with this order. Seller shall not advertise or publish the fact that Purchaser has contracted to purchase goods from Seller. Nor shall any information relating to the order be disclosed without Purchaser's written permission. Unless otherwise agreed in writing, no commercial, financial or technical information disclosed in any manner or at any time by Seller to Purchaser shall be deemed a secret or confidential and Seller shall have no rights against Purchaser with respect thereto except such rights as may exist under patent laws.
Warranty Seller expressly warrants that all goods and services furnished under this agreement shall conform to all specifications and appropriate standards, will be new, and will be free from defects in material or workmanship. Seller warrants, that all such goods or services will conform to any statements made on the containers or labels or advertisements for such goods, or services, and that any goods will be adequately contained, packaged, marked, and labeled. Seller warrants that all goods or services furnished hereunder will be merchantable, and will be safe and appropriate for the purpose for which goods or services of that type are normally used. If Seller knows or has reason to know the particular purpose for which Purchaser intends to use the goods or services, Seller warrants that such goods or services will be fit for such particular purpose. Seller warrants that goods or services, furnished will conform in all respects to samples. Inspection, test, acceptance, or use of the goods or services furnished hereunder shall not affect the Seller's obligation under this warranty, and such warranties shall survive inspection, test, acceptance and use. Seller's warranty shall run to Purchaser, its successors, and customers, and users of products sold by Purchaser. Seller agrees to replace or correct defects of any goods or services not conforming to the foregoing warranty promptly, without expense to Purchaser, when notified of such nonconformity by Purchaser, provided Purchaser elects to provide Seller with the opportunity to do so. In the event of failure of Seller to correct defects in or replace nonconforming goods or services promptly, Purchaser, after reasonable notice to Seller, may make such corrections or replace such goods and services and charge Seller for the cost incurred by Purchaser in doing so.
Price Warranty Seller warrants that the prices for the articles sold Purchaser hereunder are not less favorable than those currently extended to any other customer for the same or similar articles in similar quantities. In the event Seller reduces its price for such articles during the term of this order, Seller agrees to reduce the prices hereof correspondingly. Seller warrants that prices shown on this purchase order shall be complete and no additional charges of any type shall be added without Purchaser's express written consent. Such additional charges include, but are not limited to, shipping, packaging, labeling, custom duties, taxes, storage, insurance, boxing, crating.
Force Majeure Purchaser may delay delivery or acceptance occasioned by causes beyond its control. Seller shall hold such goods at the direction of the Purchaser and shall deliver them when the cause affecting the delay has been removed. Purchaser shall be responsible only for Seller’s direct additional costs in holding the goods or delaying performance of this agreement at Purchaser’s request. Causes beyond Purchaser's control shall include government action or failure of the government to act where such action is required, strike or other labor trouble, fire, or unusually severe weather.
Patents Seller agrees upon receipt of notification to promptly assume full responsibility for defense of any suit or proceeding which may be brought against Purchaser or its agents, customers, or other vendors of alleged patent infringement, as well as for any alleged unfair competition resulting from similarity in design, trademark or appearance of goods or services furnished hereunder, and Seller further agrees to indemnify Purchaser, its agents and customers against any and all expenses, losses, royalties, profits and damages including court costs and attorney’s fees resulting from any such suit or proceeding, including any settlement.
Insurance In the event that Seller's objections hereunder require or contemplate performance of services by Seller's employees, or persons under contract to Seller, to be done on Purchaser's property, or property of Purchaser's customers, the Seller agrees that all such work shall be done as an independent contractor and that the persons doing such work shall not be considered employees of the Purchaser. Seller shall maintain all necessary insurance coverages, including public liability and Workmen's Compensation insurance. Seller shall indemnify and save harmless and defend Purchaser from any and all claims or liabilities arising out of the work covered by this paragraph.
Indemnification Seller shall defend, indemnify and hold harmless Purchaser against all damages, claims or liabilities and expenses (including attorney's fees) arising out of or resulting in any way from any defect in the goods or services purchased hereunder, or from any act or omission of Seller, its agents, employees or subcontractors. This indemnification shall be in addition to the warranty obligations of the Seller.
Changes Purchaser shall have the right at any time to make changes in drawings, designs, specifications, materials, packaging, time and place of delivery and method of transportation. If any such change causes an increase or decrease in the cost, or the time required for the performance, an equitable adjustment shall be made and this agreement shall be modified in writing accordingly. Seller agrees to accept any such changes subject to this paragraph.
Inspection/Testing Payment for the goods delivered hereunder shall not constitute acceptance thereof. Purchaser shall have the right to inspect such goods and to reject any or all of said goods that are in Purchaser's judgment defective or nonconforming. Goods rejected and goods supplied in excess of quantities called for herein may be returned to Seller at its expense and, in addition to Purchaser's other rights, Purchaser may charge Seller all expenses of unpacking, examining, repacking and reshipping such goods. In the event Purchaser receives goods whose defects or nonconformity is not apparent on examination, Purchaser reserves the right to require replacement, as well as payment of damages. Nothing contained in this purchase order shall relieve in any way the Seller from the obligation of testing, inspection and quality control.
Entire Agreement This purchase order, and any documents referred to on the face hereof, constitute the entire agreement.
Assignment and Subcontracting No part of this order may be assigned or subcontracted without the prior written approval of Purchaser.
Equal Opportunity and Affirmative Action The Seller agrees to comply with the provisions of Executive Order 11246 as amended, the Rehabilitation Act of 1973 as amended, the Vietnam Era Veterans' Readjustment Assistance Act of 1974 as amended, and their implementing regulations at 41 CFR Part 60. Seller also agrees to comply with Executive Order 13201 and its implementing regulation at 29 CFR Part 470.
Setoff All Claims for money due or to become due from Purchaser shall be subject to deduction or setoff by the Purchaser by reason of any counterclaim arising out of this or any other transaction with Seller.
Shipment If in order to comply with Purchaser's required delivery date it becomes necessary for Seller to ship by a more expensive way than specified in this purchase order, any increased transportation costs resulting therefrom shall be paid for by Seller unless the necessity for such rerouting or expedited handling has been caused by Purchaser.
Waiver Purchaser’s failure to insist on performance of any of the terms or conditions herein or to exercise any right or privilege or Purchaser’s waiver of any breach hereunder shall not thereafter waive any other terms, conditions or privileges, whether of the same of similar type.
Delivery Time is of the essence of this contract, and if delivery of items or rendering of services is not completed by the time promised, Purchaser reserves the right without liability in addition to its other rights and remedies to terminate this contract by notice effective when received by Seller as to items not yet shipped or services not yet rendered and to purchase substitute items or services elsewhere and charge Seller with any loss incurred.
Limitation on Purchaser's Liability — Statute of Limitations In no event shall Purchaser be liable for anticipated profits or for incidental or consequential damages. Purchaser's liability or any claim of any kind for any loss or damage arising out of or in connection with or resulting from this agreement or from the performance or breach thereof shall in no case exceed the price allocable to the goods or services or unit thereof which gives rise to the claim. Purchaser shall not be liable for penalties of any description. Any action resulting from any breach on the part of Purchaser as to the foods or services delivered hereunder must be commenced within one year after the cause of action has accrued.
Sales Terms and Conditions
DELIVERY AND RISK OF LOSS. Buyer agrees to pay all costs of transportation, or to reimburse Seller for any expenses incurred in transporting the goods. Buyer assumes all risk of loss or damage thereto from the time the goods are presented to the carrier for loading. If a package is received in damaged condition, it is the buyer's responsibility to contact the carrier and retain the package for inspection.
WARRANTY. Seller warrants that the goods to be supplied here under will conform to the description on the face thereof and that it will convey good title thereto.
DISCLAIMER. SELLER MAKES NO OTHER WARRANTY WHATEVER, EXPRESSED OR IMPLIED, AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED AND EXCLUDED FROM THIS TRANSACTION AND SHALL NOT APPLY TO THE GOODS SOLD HEREUNDER.
EXCLUSIVE REMEDY. Seller will replace, at the delivery point specified herein, any goods furnished hereunder that are found to be defective or otherwise fails to conform to the conditions of this contract, or, at Seller's option, Seller will repay the price paid for such product, plus any transportation charges paid by Buyer in addition to such price. Buyer shall have no more than 15 days following delivery to give notice to Seller of nonconforming goods. Seller must be given a reasonable opportunity to investigate Buyer’s claims with respect to any product furnished by Seller, hereunder that is found to be defective or otherwise not conforming with this contract. Claims shall be limited to the replacement or repayment of the goods as stated herein. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR FOR DAMAGES IN THE NATURE OF PENALTIES.
INDEMNIFICATION. Buyer agrees to indemnity, hold harmless and defend Seller of and from any and all claims or liabilities asserted against Seller in connection with the manufacture, sale, delivery, resale or repair or use of any product covered by or furnished under this contract arising in whole or in part out of or by reason of the failure of Buyer, its agents, servants, employees or customers to follow instructions, warnings or recommendations furnished by the Seller in connection with such product, or by reason of the negligence of Buyer, its agents, servants, employees or customers.
ADVICE. Seller assumes no obligation or liability for advice or assistance given or results obtained in connection with any goods sold hereunder, all such advice or assistance is given and accepted at Buyer's risk. Any decision as to use or installation of goods sold hereunder is that of the Buyer.
COMPLIANCE WITH LAW. Seller certifies that these goods were produced in compliance with all applicable requirements of Section 6, 7, and 12 of the Fair Labor Standards Act, as amended, and of regulations and orders of the United States Department of Labor issued under Section 14, thereof.
RETURNS. Seller will not accept for return any goods specially manufactured for the Buyer. Seller will accept for return standard items, if returned within 30 days of delivery and after prior written permission from Seller authorizing return.
ENTIRE AGREEMENT. No terms or conditions other than those stated herein, and no agreement, implied, oral or written in any way purporting to modify these terms and conditions, whether contained in Buyer’s purchase order, Seller's acknowledgment, shipping forms or elsewhere, shall be binding on Seller unless made in writing and signed by an officer of Seller. Trade usage shall neither be applicable nor relevant to this agreement, not be used in any manner whatsoever to explain, qualify or supplement any of the provisions herein.
TERMS. F.O.B. our plant. With prior credit approval, payment is due in 30 days net unless otherwise specified by Seller. Service Charge of 1-1/2% will apply on all invoices unpaid after 60 days from the date of the invoice. This amounts to 18% annum. Minimum service charge $2.50 per month.
QUOTATIONS. Stenographical and clerical errors are subject to correction. Until an order is accepted by Seller, quoted prices are subject to change without notice. All orders and contracts are subject to acceptance by Seller. Quotations are based on prevailing costs of labor and material, but do not include Federal, State or Municipal taxes. In line with the general practice of the industry, the fact that we find it necessary to charge for tools, dies, fixtures or gages doesn't not convey ownership or the right to remove them from our factory, unless specifically agreed upon in writing. Quotations are valid for 30 days.
CREDIT. Accounts will be opened only with firms or individuals on approved credit. The Seller reserves the privilege of declining to make deliveries except for cash whenever, for any reason, doubt as to the Buyer's responsibility develops.
CANCELLATION. Orders may be canceled or deliveries deferred only upon the condition that the Buyer assumes immediate liability and makes payment to the seller for all work completed at the unit price; work in process on the basis of the percentage of completion thereof times the order unit price; raw material, unamortized tooling, engineering and other cancellation charges incurred on the basis of cost to the Seller, plus handling and overhead charges. All cancellation charges to be determined at the time of cancellation or deferment.
QUANTITIES. All quotations are based on Buyer accepting over-run or under-run on each individual item not exceeding 10% of quantities ordered. Where closer control of quantity is required special arrangements must be made. All Special Orders over 5 pieces may be over shipped by not more than 10%.
LEAD TIMES. The delivery date indicated is given in all sincerity and can be met at a given time. However, quoted lead times are subject to prior sale of parts and/or capacity. The Seller does not assume responsibility for any damages growing out of or owing to, any delays which are beyond his control. If partial shipments are required special arrangements must be made, all partial shipments will be invoiced and must be paid under our regular terms.
CLAIMS. If the Buyer claims delivery of material not as ordered he must notify Seller within ten (10) days after receipt of shipment. No returns will be accepted after this period. If such claim is sustained and material furnished is not as ordered, Acme Industrial shall have option to repair, replace, credit, or complete orders with the limitation of the terms stated above under "Quantities". Under no circumstances will the Seller be liable for damages or claims for expense involved in using his product. Seller will not allow claims for defective goods on parts that have been further processed by the Buyer and resulting in change of either dimensions or the characteristics of parts as ordered. Claims for shortage must be made within ten (10) days from receipt of the goods.
INSPECTION. Inspection by the Seller is made on a percentage basis only. If 100% inspection is required it is at the Buyers expense, and only such parts proved not as ordered by Buyer's inspection may be returned with a claim for repair, credit or replacement, as covered by the above sections "Claims" and "Quantities".
SHIPMENT. In ordering the Buyer should state explicitly the method of shipment preferred, and in the absence of shipping direction, the Seller will use discretion selecting the carrier and services for the shipment. Shipments will be insured at the Buyer’s expense unless otherwise specified.
PATENTS. It is not the intention of the Seller to manufacture any product which is an infringement of a patented article. Parts are made by the Seller strictly to dimensional specifications furnished by the Buyer. It is agreed that the Buyer will defend and save harmless the Seller form any and all expense involved in any claims for damages from infringements of letters patent by the use or sale of parts made by the Seller, either as such or as part or units of complete entities. Buyer does not assume responsibility for parts made on equipment violating licenses.