TERMS AND CONDITIONS
1. This is a firm price order. In the absence of indication of price by Buyer, Seller must not fill this order at a price higher than last quoted or charged to Buyer, without Buyer’s written consent. Seller represents that the prices charged for the items or service covered by this order comply with applicable government regulations in effect at time of order placement, sale, or delivery.
TERMS OF PAYMENT
2. Unless otherwise stipulated on the front of this purchase order, Buyer will pay all invoices greater than $1,000 net 40 days from the invoice date and all other invoices in net 30 days. If offered by Seller, discounts may be taken at Buyer’s discretion. Discounts shall be allowed when so paid. Invoices must be dated no earlier than the shipping date of the material. This discount period shall not commence for tooling orders until Buyer receives and approves tooling parts. Invoices will only be paid upon proof of delivery.
3. Documents designated by Buyer including supplemental terms and conditions, if any, are incorporated by reference the same as if set out in full herein.
4. The Buyer reserves the right at any time to change by written notification any of the following (a) Specifications, drawings and data incorporated in this contract where items to be furnished are to be specially manufactured for the Buyer; (b) quantity; (c) methods of shipment or packing, (d) place of delivery; (e) time of delivery; or (f) any other matters affecting this order.
5. If any change by Buyer causes an increase or decrease in the cost of the delivery schedule for this contract, Buyer shall make in writing and equitable adjustment in the contract price of delivery schedule, or both. Any claim by Seller for adjustment under this clause shall be deemed waived unless asserted in writing within ten (10) days from Seller’s receipt of the change.
6. Buyer may terminate this order for its convenience, in whole or in part, at any time on 5 days written or telegraphic notice to Seller. Upon receipt of such termination, Seller shall promptly comply with the directions contained in such notice and shall, as required, (a) take action necessary to terminate the work as provided in the notice, minimizing costs and liabilities for the terminated work, (b) protect, preserve and deliver in accordance with Buyer’s instructions any property related to the order in Seller’s possession and (c) continue the performance of any part of the work not terminated by Buyer.
7. Buyer may also, by written or telegraphic notice to seller, terminate the whole or any part of this order for default: (a) if Seller fails to deliver items and materials or perform the services required on schedule or (b) if, at any time, reasonable grounds for insecurity arise as to Seller’s expected performance (including timely performance) within ten (10) days after Buyer’s written demand for adequate assurance. Buyer may also terminate for default if Seller becomes insolvent or makes an assignment for the benefit of creditors or commits and act of bankruptcy or files or has filed against it a petition in bankruptcy or reorganization proceedings.
8. If Buyer terminates all or part of this order for default under Paragraph 7. Buyer may procure, upon terms and in a manner it deems appropriate, goods and services similar to those terminated. In addition, Buyer may require Seller to deliver any completed or uncompleted goods related to this order by agreeing to pay Seller as specified in paragraph 9 below.
9. On termination for Buyer’s convenience, Seller at the time of termination may have stock or on firm order completed or uncompleted items or raw, semi-processed or completed materials for use in fulfilling this order. (A) For completed items or materials, Buyer shall either require delivery of all or part of the completed goods and make payment at the order price, or (without taking delivery) pay Seller the difference, of any, between the order price and the market price (if lower) at the time of termination. (B) For uncompleted items or raw or semi processed materials. Buyer shall either require Seller to deliver all or part of such goods at the portion of the order price representing the stage of competition, or (without taking delivery) pay Seller for such goods which are properly allocable to this order a portion of the order price representing the stage of completion, reduced by the higher of the market or scrap value of the goods at the stage of completion. (C) For goods which Seller has on firm order, Seller’s obligation under the order. (D) If Buyer terminates for default, Seller shall be liable for additional costs, if any, for the purchase of such similar goods and services to cover such default. Payments to Seller hereunder shall be the sole remedy available to Seller in the event of a termination by Buyer.
10. Buyer’s rights and remedies under paragraph 6-9 inclusive shall not be exclusive and are in addition to any other rights and remedies provided by law or under this order.
11. Seller may not assign, transfer or subcontract this order or any right or obligation hereunder without Buyer’s written consent. Any purported assignment, transfer or subcontract shall be void and ineffective.
12. Time is of the essence. Seller shall furnish sufficient labor and management forces, plant, and equipment and shall work such hours (including night shift, overtime, weekend and holiday work) as may be required to assure timely delivery.
13. Regardless of delivery or performance in installments, Seller’s obligation is not severable. Buyer need not accept shipment sent C.O.D. without its consent and may return them at Seller’s risk.
14. Fires, floods, strikes, lockouts, epidemics, accidents, shortages or other causes beyond the reasonable control of the parties, which prevent Seller from delivering, or Buyer from receiving any of the goods and services covered by this order shall suspend deliveries until the cause is removed, subject however, to Buyer’s rights of cancellation under Paragraph 6.
15. If the goods furnished under this are for resale (as indicated on the front). Buyer will pay any sales or use taxes imposed on such goods after delivery. Seller will pay all other taxes imposed before delivery to the destination point, including property taxes imposed on goods for which title has passed to Buyer.
16. Seller warrants and agrees that it has complied and will comply with all applicable Federal, State and local laws, codes, and regulations, including, without limitation, the following: Fair Labor Standards Act of 1938, as amended.
17. Seller shall, at its expense, defend any suit or proceeding brought against Buyer, its successors and assigns, based on any claim that any goods or any component part delivered or furnished hereunder infringes or the like the rightful claim of any third party, including any U.S. or foreign letters patent or trademark (expecting infringement or the like necessarily resulting from adherence to specifications furnished by Buyer). Buyer agrees to notify Seller in writing of any such claim and to provide such assistance, at Seller’s expense, as may be reasonably required in defending the suit or proceeding. Seller shall pay all damages, costs and attorney fees awarded in any suit or proceeding.
18. If the goods or any component part furnished hereunder are held to infringe and their use is enjoined, Seller shall, at its option and its own expense. (a) procure for Buyer and its successors and assigns, the right to continue using the goods, (b) replace them with a substantially equivalent non-infringing product acceptable to Buyer, or (c) modify them so they become non-infringing with substantially equivalent performance acceptable to Buyer. Absent (a). (b). (c), Buyer reserves its rights at law, or at its option may return the infringing goods to Seller at Seller’s expense and Seller promptly shall refund the purchase price to Buyer.
PACKAGING, PACKING LISTS AND BILL OF LADING
19. Seller shall be responsible for proper packaging, loading and tie-down to prevent damage during transportation. Seller must bill all returnable containers on a separate memo invoice: return transportation charges will be collect and for Seller’s account. Buyer’s weight and/or count will be accepted as final and conclusive on all shipments not accompanied by such packing list.
20. All goods furnished hereunder will be subject to Buyer’s final inspection and approval within a reasonable time after delivery irrespective of payment date. Buyer may reject goods not in accordance with the instructions, specifications, drawings, data or Seller’s express or implied warranties (“Non-Conforming Goods”) or may accept some and reject other Non-Conforming Goods, at its option. Buyer may return rejected goods to Seller at Seller’s expense and Buyer shall have no further obligation for such goods or Buyer may retain rejected goods and Seller shall pay Buyer its damages due to them. Payment for any article shall not be deemed acceptance and in no event shall Buyer incur any liability to pay for rejected goods.
21. Buyer shall have a reasonable time (not less than ten days from receipt) to submit claims of count, weight, quantity, loss, or damage to delivered goods. Buyer will calculate damages on claims and deduct the amount from Seller’s invoice. If invoice was previously paid, Seller will reimburse the amount of damages to Buyer.
22. Seller shall assume responsibility for and will pay any and all loss, cost, damage or expense, including attorney fees, and cost of replacement incurred by Buyer attributed to Buyer’s rejection of Non-Conforming Goods or to Seller’s untimely delivery.
23. The Seller agrees to defend, indemnify and save the Buyer harmless against all liabilities, claims or demands, whether in tort or in contract for injuries or damages to any person or property arising out of Seller’s act or omissions in the performance of this contract.
24. By accepting this order, Seller warrants that the goods and services furnished will be free from defects in materials and workmanship, merchantable and in full conformity with Buyer’s specifications, drawings and data, and Seller’s descriptions, promises or samples, and that such use, and that Seller will convey good title to the goods, free and clear from all liens, claims and encumbrances. This warranty shall survive acceptance of the items and is in addition to any warranties of additional scope given to Buyer by Seller. No implied warranties by the Seller are excluded.
25. Seller, without cost to Buyer, shall promptly do all things necessary to correct any breach of the above warranties in a manner satisfactory to Buyer. If Seller is unable or refuses to repair or replace as Buyer may require, Buyer may contract or otherwise repair or replace such defective goods and back-charge Seller for the excess cost.
TITLE AND RISK OF LOSS
26. Risk of loss of all goods shall remain in Seller until receipt of the goods at Buyer’s location. Notwithstanding restrictive legends to the contrary, title to plans, drawings and specifications for goods shall be vested and remain with Buyer and may be used by Buyer for any purpose.
27. Title shall pass to Buyer upon Buyer’s acceptance of goods at Buyer’s location. If Buyer makes progress payments, title to the goods shall be transferred to Buyer as payments are made, and in the same proportions as the cumulative payments bear to the order price. Seller shall also identify such goods as the property of Buyer unless Buyer waives identification.
28. If Buyer discloses or grants Seller access to any research, development, technical, economic or other business information or “know-how” of confidential nature, whether reduced to writing or not, Seller agrees, as condition of receiving such information or “know-how”, that Seller will not use or disclose any such information to any other person at any time, except as may be necessary in the performance of this order, without Buyer’s written consent. Seller shall use such information only to perform this contract.
PROPERTY FURNISHED TO SELLER BY BUYER
29. All special dies, molds, patterns, jigs, fixtures, and any other property with Buyer furnished to Seller or specifically pays for, for use in the performance of this contract, shall be and remain Buyer’s property, shall be subject to removal upon Buyer’s instruction, shall be for Buyer’s exclusive use, shall be held at Seller’s risk, and shall be kept insured by Seller at Seller’s expense while, in its custody or control in an amount equal to the replacement cost, with loss payable to Buyer. Seller will furnish copies of policies or certificates of insurance on Buyer’s demand.
RESOLUTION OF CONFLICTS OR INCONSISTENCIES OCCURRING IN THE ORDER
30. It is Seller’s responsibility to comply with these and all referenced documents and to clarify, with Buyer any inconsistencies or conflicts in any parts of this order, such as these provisions contained in this document, additional terms and conditions, general specifications detailed specifications, etc. Should Seller fail to contact Buyer to resolve these conflicts or inconsistencies, Seller will be solely responsible for errors resulting from conflicts or inconsistencies where documents are referenced, the version in effect at the time of order placement shall apply.
31. Acknowledgment of this order, shipment of any goods or rendering of any services pursuant to this order shall be deemed an acceptance of these terms, and conditions. No modification of or release from this contract shall be binding unless agreed to in writing and specifically labeled as a modification or release. These terms and conditions supersede any submitted by Seller in any proposal or acknowledgment.
32. Buyer’s failure to insist on Seller’s strict performance or the terms and conditions of this Purchase Order at any time shall not be construed as a waiver by Buyer for performance in the future.