This order becomes a binding contract upon the terms and conditions set forth herein including, but not limited to quantity and price when accepted by acknowledgment or by performance. The terms set forth herein constitute the entire agreement between the parties and supersede all previous verbal and written representations, agreements and conditions. No change, modification, or revision of the quantity or price set forth herein or any other term of this Order shall be binding upon Buyer unless made in writing and signed by Buyer’s authorized representative. No condition stated by Seller in accepting, acknowledging, or amending this Order shall be binding upon Buyer if inconsistent with or in addition to the terms and conditions contained unless expressly accepted by Buyer’s authorized representative in writing. It is expressly understood and agreed that all of the terms which shall be binding upon the parties, including those relating to quantity and price, must be in writing and signed by both parties hereto.
2. PACKING, SHIPPING and TERMS of PAYMENT
Unless otherwise provided herein, no charge shall be made by Seller for containers, crating, boxing, storage or other packaging requirements. All supplies shall be packed, packaged, marked, and otherwise prepared for shipment in accordance with sound commercial practice to meet requirements for obtaining lowest transportation rates, or as otherwise specified herein. Seller shall mark containers or packages with necessary loading and shipping information and also with the Purchase Order number, date of shipment, and names and addresses of consignor and consignee. An itemized packing slip must accompany each shipment. Unless otherwise agreed in writing by Seller, terms of sale are net 30 days. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
3. TITLE AND RISK OF LOSS
Title to all supplies to be delivered shall remain in Seller until such supplies are delivered to Buyer at the F.O.B. shipping point specified on the face of this Order. All risks of loss of or damage to supplies to be delivered by Seller shall be upon Seller until title of such supplies passes to Buyer. Seller shall bear all risks of loss or damage to supplies rejected by Buyer immediately upon and at all times after notice of rejection, except for the loss of, destruction of, or damage to such supplies resulting from the gross negligence of officers, agents, or employees of Buyer acting within the scope of their employment.
Deliveries shall be made both in quantities and at times specified in this Order. Buyer will not be liable for payment for articles or supplies delivered to Buyer in excess of the quantities specified. Quantiles sold by length including foot, inches , meters, shall be +/- 10 % unless otherwise agree to by the Buyer and Seller. Articles or supplies shipped to buyer in advance of the times specified may be rejected and returned to Seller at Seller’s expense.
Buyer may at any time by written order, without notice to any surety, make changes or additions within the general scope of this Order or to drawings, designs, specifications for work, method of shipment or packing, or time and place of delivery. Any such change shall constitute a modification of this purchase order and shall be binding upon the Seller. If any such changes cause an increase or decrease in the cost of, or the time required for, performance of this Order, Seller shall notify Buyer in writing immediately and an appropriate equitable adjustment will be made in the price or time of performance, or both, by written modification of this Order. Any claim by Seller for such adjustment must be asserted with 30 days, or such other period as may be agreed upon in writing by the parties, after Seller’s receipt of notice of the change. Nothing herein shall excuse Seller from proceeding with the contract as changed.
Except as may otherwise be provided in this Order, final inspection and acceptance will be made at destination. Supplies rejected at destination for nonconformance with specifications shall be removed by the Seller at his expense promptly after notice of rejection.
In connection with any discount offered, time will be computed from date of delivery or from date correct invoice or voucher is received in the office specified by the Buyer, if the latter date is later than the date of delivery. Payment is deemed to be made, for the purposes of earning the discount, on the date of mailing of the Buyer’s check.
In addition to and without prejudice to all other warranties both expressed and implied, Seller warrants that the supplies of services furnished hereunder will be (a) free from defects in material and workmanship, (b) in compliance with all requirements of this Order and all applicable drawings, specifications, samples, representation or other descriptions, (c) to the extend such supplies or services are not furnished pursuant to detailed designs provided by Buyer, free from defects in design, and (d) suitable for the purposes intended. All warranties, both expressed and implied, including the above, shall constitute conditions, shall survive inspection, acceptance and payment and shall inure to the benefit of Buyer, its customers, and users. Without limitation of any rights by reason of any breach of warranty or otherwise, supplies or services which are not as warranted may at any time be returned to Seller at Seller’s expense for credit, correction, or replacement, as Buyer may direct. In the event Seller fails promptly to correct or replace the supplies as directed by Buyer, in addition to the rights stated above, Buyer shall have the right to terminate this Order for default.
9. PATENT INDEMNITY
The Seller represents and warrants that it has good and valid title to all goods, items, and supplies delivered hereunder and all right, title and interest appertaining thereto or necessary or reasonably expected in connection with use thereof including, but not limited to, any and all patents, trademarks and copyrights. The Seller agrees to indemnify the Buyer, its officers, agents, servants, and employees against liability of any kind (including costs and expenses incurred) for the use of any invention or discovery and for the infringement of any Letters Patent occurring in the performance of the order or arising by reason of the use or disposal by or for the account of the Buyer of items manufactured or supplied under this Order, provided however, that this indemnity shall not extend to liability for infringement necessarily resulting from the Seller’s required compliance with Buyer’s written specifications or provisions for other than standard parts or components manufactured or supplied by the Seller or resulting from specific written instructions given by the Buyer for the purpose of directing a manner of performance of this Order not normally utilized by the Seller.
10. PROPRIETARY INFORMATION
Seller agrees that all drawings, specifications, photographs, and other engineering and manufacturing information furnished by Buyer to Seller under this Order are the proprietary property of Buyer, and except as may be necessary for the performance of this Order, shall not be used or reproduced by Seller or disclosed or transmitted by Seller to any person or organization without the prior written consent of Buyer. Upon completion of all work under this Order, Seller shall upon the demand of Buyer, promptly return to Buyer all drawings, specifications, photographs, and other engineering and manufacturing information furnished to Seller in connection with this Order, together with all copies or reproductions than in Seller’s possession or control. Seller shall also provide at Buyer’s request written certification that all such documents have been returned to Buyer.
No assignment of this Order or any monies due or to become due thereunder shall be binding upon Buyer without Buyer’s written consent.
Seller shall not, without the prior written consent of Buyer, in any manner advertise the fact that Seller has furnished or has contracted to furnish to Buyer the supplies or services to be furnished under this Order.
13. COMPLIANCE WITH LAWS
Seller shall observe and comply with all applicable federal, state and local laws, executive orders, rules and regulations in the performance of this Order, and Seller represents and warrants that the supplies and services furnished under this Order have been or will be produced in compliance with all applicable requirements of all such laws, orders, rules and regulations, including but not limited to, the Fair Labor Standards Act. Seller agrees to indemnity and save harmless Buyer against any loss, liability, expense, or damage by reason of Seller’s failure to observe or comply with any applicable law, executive order, rule or regulation.
Any changes, alterations, or modifications to this Order must be in writing and must specifically refer to any change, alteration or modification of this Purchase Order.
Except as may be otherwise provided in this Order, the price includes all applicable Federal taxes in effect on the date of this Order but does not include any State or local sales, use or other tax directly applicable to the completed supplies or services covered by this Order nor any other tax from which the Seller or this transaction is exempt. Upon request of the Seller, the Buyer shall furnish a tax exemption certificate or similar evidence of exemption with respect to any such tax not included in the price pursuant to this clause. For the purpose of this clause, the term “date of the Order” means the date of the Seller’s quotation or, if no quotation, “the date of this Order”.
16. EEO CLAUSES
The Equal Opportunity Clause contained in Section 202 of Executive Order 11246, as amended relating to equal employment opportunity for all persons without regard to race, color, religion, sex, or national origin, the Affirmative Action Clause contained in 41 C.F.R. Chapter 60 – 250.4 relating to affirmative action obligations to disabled and Vietnam Era veterans and the Affirmative Action Clause contained in 41 C.F.R. Chapter 60 – 741.4 relating to affirmative action obligations to handicapped workers and the implementing rules and regulations of the Secretary of Labor (41 C.F.R. Chapter 60) are incorporated herein by reference.
17. Force Majeure
Seller shall not be liable for any delay in or failure of performance due to any contingency beyond its reasonable control, including: an act of God; war; civil commotion; sabotage; labor dispute; explosion; fire; accident; downtime; power or equipment failure or outage; inability to obtain suitable or sufficient labor, fuel, power, pandemic ,or material; delay of carrier; embargo; or any law, ordinance, rule, or regulation, whether valid
18. ENTIRE AGREEMENT
It is expressly agreed by the parties hereto that this Order constitutes the entire and only contract between the parties hereto; that there are no agreements, understanding or covenants between the parties hereto of any kind, nature, or description, express or implied, oral, or otherwise, which have not been set forth herein. This Order and the performance of the parties hereunder shall be construed in accordance with and governed by the laws of the State of New York.