Terms and Conditions of Purchase
ACCEPTANCE: Unless otherwise agreed in writing by the parties, Seller will be deemed to agree to the terms and conditions set forth below if it ships the products or performs the services described in the purchase order, or acknowledges or confirms receipt of the accompanying purchase order. Any different or additional terms that may be contained in Seller’s acknowledgment, confirmation, invoice or any other communication made in response to the purchase order are hereby objected to unless Buyer agrees otherwise in writing. Buyer’s silence or acceptance of any products shipped or services performed shall in no event be deemed acceptance by Buyer of any term contained in Seller’s acknowledgment, confirmation, invoice or other communication made in response to the purchase order.
QUANTITY; PRICE: The purchase order must not be filled in greater quantities or at prices higher than shown without written approval of an authorized representative of Buyer. If the price is not shown on the purchase order, it is agreed that Seller shall furnish at a unit price no higher than the unit price at which Buyer last purchased such products from Seller, unless a different price is expressly approved in writing by an authorized representative of Buyer. Seller’s acceptance of the purchase order shall constitute a warranty to Buyer that the prices agreed upon do not exceed any applicable maximum ceiling prices established by any governmental regulations.
OTHER TERMS OF PURCHASE: Unless otherwise specified on the purchase order, packaging, drayage, delivery and payment terms are as set forth on the purchase order. Time is of the essence and Seller shall comply with any shipment dates and delivery schedules specified on the purchase order without undue delay. Seller shall notify Buyer promptly if any delay in delivery is anticipated. All products delivered by Seller shall be subject to Buyer’s right of inspection and rejection.
CHANGES TO ORDER: Buyer may at any time, by written notice to Seller, make changes to the (1) drawings, designs or specifications, (2) quantities, (3) method of shipment or packing or (4) place of delivery specified in the purchase order. If any such change affects the time or cost of performance, an equitable adjustment shall be promptly made in the delivery schedule or the purchase price, or both, by written agreement of the parties. Nothing herein shall excuse Seller from proceeding with the purchase order as changed.
RISK OF LOSS; REJECTION: Unless otherwise specified on the purchase order, all damage or loss to the products covered hereby shall be at Seller’s risk until such products are received by Buyer from the last carrier or shipper. Buyer reserves the right to reject any shipment or delivery or portion thereof that does not conform to the purchase order within a reasonable time after the nonconformity is discovered, whether before or after receipt thereof or payment therefor, and at Seller’s risk and expense, may return for full credit any products so rejected.
FORCE MAJEURE: The purchase order is subject to modification or cancellation by Buyer without cost to Buyer in the event that fire, accidents, labor disputes, wars, government acts, terrorist acts or any other conditions beyond the Buyer’s control affect the purchase hereunder.
BUYER’S PROPERTY: All materials furnished by Buyer shall be carefully maintained and insured by Seller while in Seller’s possession, as Seller shall be deemed an insurer of Buyer’s property while it is in Seller’s possession, and said property shall not be used by Seller in connection with the manufacture of any products not ordered by Buyer, and shall be returned to Buyer at its request. Seller shall keep adequate records of all materials furnished by Buyer and upon request shall account therefor to Buyer in writing. Unless otherwise authorized by Buyer in writing, Seller shall treat all materials and information, including data, drawings, specifications and any other type of information furnished by Buyer as confidential, maintain appropriate procedures to preserve the confidential nature thereof and make no use directly or indirectly of any such information without Buyer’s prior written consent. Upon completion, cancellation or termination of the purchase order, Seller shall return all such property to Buyer.
INSURANCE; LIENS: Seller shall maintain commercial general liability insurance and statutory workers’ compensation and employer’s liability insurance, each in scope and amount satisfactory to Buyer and shall furnish Buyer with satisfactory evidence thereof upon request. All such insurance shall (1) cover all services provided by Seller to Buyer in connection with the purchase order, whether at the premises of Seller, Buyer or any of Buyer’s customers, (2) name Buyer as an additional insured (except for the workers compensation insurance), (3) provide waiver of subrogation in favor of Buyer, and (4) be primary over any other insurance available to Buyer or any self-insurance program of Buyer. If any such services are performed at the premises of Buyer or any of Buyer’s customers, Seller shall keep such premises free and clear of all mechanics liens, and furnish Buyer with proper affidavits and/or waivers certifying thereto upon request.
COMPLIANCE WITH LAWS: Seller shall comply with all applicable federal, state and local laws and codes in performing its obligations hereunder and, if any services are performed by Seller at the premises of Buyer or any of Buyer’s customers in connection with the purchase order, Seller shall comply with all safety rules and regulations in effect at such premises. Seller specifically represents that the products and services provided hereunder shall comply with the Fair Labor Standards Act of 1938, as amended.
WARRANTIES: SELLER WARRANTS TO BUYER AND BUYER’S CUSTOMERS THAT ALL PRODUCTS AND SERVICES PROVIDED UNDER THE PURCHASE ORDER WILL BE FREE FROM DEFECT OF MATERIALS OR WORKMANSHIP, WILL BE FIT AND SUFFICIENT FOR THE PURPOSE INTENDED, WILL BE MERCHANTABLE AND WILL CONFORM STRICTLY TO THE TERMS, CONDITIONS, SPECIFICATIONS, DRAWINGS OR SAMPLES SPECIFIED OR FURNISHED BY BUYER PURSUANT TO THE PURCHASE ORDER. The warranties described in this paragraph shall be in addition to those implied or available at or under any applicable law and shall exist notwithstanding the acceptance by Buyer of all or part of the products or services with respect to which such warranties are applicable.
INTELLECTUAL PROPERTY: SELLER WARRANTS THAT BUYER’S PURCHASE, USE OR SALE OF THE PRODUCTS OR SERVICES FURNISHED UNDER THE PURCHASE ORDER, EITHER IN THE FORM IN WHICH SUPPLIED OR IN COMBINATIONS ACCORDING TO SELLER’S SPECIFICATIONS AND RECOMMENDATIONS, WILL NOT INFRINGE UPON ANY FEDERAL, STATE, LOCAL, FOREIGN, INTERNATIONAL OR MULTINATIONAL PATENT, TRADEMARK, COPYRIGHT, TRADE SECRET OR SIMILAR INTELLECTUAL PROPERTY RIGHT. SELLER AGREES TO DEFEND, PROTECT, INDEMNIFY AND HOLD HARMLESS BUYER, BUYER’S CUSTOMERS AND THEIR RESPECTIVE EMPLOYEES AND AFFILIATES AGAINST ALL CLAIMS OF INFRINGEMENT OF ANY SUCH INTELLECTUAL PROPERTY RIGHT ARISING OR RELATING IN ANY WAY TO THE MANUFACTURE, PURCHASE, USE OR SALE OF THE PRODUCTS OR SERVICES FURNISHED UNDER THE PURCHASE ORDER AND AGAINST ANY AND ALL JUDGMENTS FOR OR AWARDS OF DAMAGES, COSTS AND EXPENSES (INCLUDING BUT NOT LIMITED TO ATTORNEY’S FEES) SO INCURRED.
SURVIVAL OF WARRANTIES: All of the covenants, warranties and representations contained herein shall survive the performance of the purchase order by Buyer and Seller, including without limitation, delivery of the products ordered or services performed hereunder, and the payment therefor.
DEFAULTS, RIGHTS AND REMEDIES: If (1) Seller should become insolvent, make an assignment for the benefit of its creditors, (2) a bankruptcy, insolvency, reorganization or arrangement proceeding should be commenced by or against Seller, (3) Seller should be unable to pay its debts as they mature, (4) Seller should fail to supply adequate assurances of due performance of this order within ten days after a written request by Buyer for such assurances, (5) any financial or other circumstances should exist that, in the opinion of Buyer, could prevent or delay the due performance by Seller under this order or (6) Seller fails to timely perform any of its obligations under the purchase order, then Buyer may, at its option, declare Seller in default under this order. In such event, Buyer may, at its option, exercise any or all of the following remedies in addition to any other rights or remedies available to it at law or in equity:
a) Cancel all or any part of this order without incurring any liability thereby.
b) Recover all loss, damage and expense sustained by it, directly, indirectly or consequentially, as the result of any such default.
INDEMNIFICATION: SELLER SHALL INDEMNIFY, HOLD HARMLESS AND DEFEND BUYER, BUYER’S CUSTOMERS AND THEIR RESPECTIVE EMPLOYEES AND AFFILIATES FROM ALL LIABILITY, LOSS, DAMAGE OR INJURY TO PERSON (INCLUDING EMPLOYEES AND AGENTS OF SELLER) OR PROPERTY IN ANY MANNER ARISING OUT OF OR INCIDENT TO THE PERFORMANCE OF THIS CONTRACT.
NOTICE OF LABOR DISPUTE: Whenever an actual or potential labor dispute threatens to delay performance of the purchase order, Seller shall immediately give notice of such to Buyer.
MODIFICATION; WAIVER: No modification of any provision herein shall be binding upon Buyer unless contained in writing and signed by an authorized representative of Buyer. Buyer’s failure to insist upon strict performance of any term or condition set forth herein shall not be deemed a waiver of any rights or remedies that Buyer shall have and shall not be deemed a waiver of any subsequent breach of the same or any other term or condition hereof. Shipping or receiving of any article under this order shall not constitute a waiver of any right of Buyer hereunder or of any obligation of Seller to comply with any of the provisions hereof.
ASSIGNMENT: Neither this agreement, the performance thereof nor any interest therein or claim thereunder shall be assigned or transferred without the prior written consent of Buyer.
GOVERNING LAW: This contract shall be construed and enforced according to the domestic substantive laws of the State of Ohio without giving effect to any choice or conflict of laws provision or rule that would cause the application of the domestic substantive laws of any other state. If any provision of this order declared unlawful or invalid, the remaining provisions shall nevertheless continue in full force and effect.
ENTIRE AGREEMENT: These terms and conditions and the provisions on the purchase order to which these terms and conditions are attached constitute the sole and entire agreement between Seller and Buyer, and shall govern exclusively as to the sale and delivery of any products or services to Buyer. All prior communications, representations, negotiations and promises with respect to this sale are deemed to be merged herein.
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