Terms & Conditions
Seller agrees to the following terms and conditions, and Seller further agrees that the provisions of the Purchase Order, including these terms and condition and all documents incorporated herein by reference, shall constitute the entire agreement by and between the parties hereto and shall supersede all prior agreements (oral or written) and negotiations relating to the subject matter hereof.
Warranty: Seller warrants that all items ordered hereunder shall be merchantable and free from defects in workmanship and materials and shall strictly conform to all applicable specifications, drawings, and approved samples, if any, including any specifications provided and shall be suitable for their intended purpose. These warranties shall be in addition to any other warranties, whether express, implied, or statutory. All warranties shall survive inspections, acceptance, and final payment by Buyer. All warranties shall extend to Buyer, its customers and subsequent purchasers or owners of the items or end products which they relate. Seller agrees, at its expense, to hold harmless Buyer, its customers and subsequent owners or purchasers (“Indemnitees”) from and against any third-party claim or action against Indemnitees insofar as such claim or action is based upon a breach of the foregoing warranties or any acts or omissions of Seller. Seller agrees to indemnify Indemnitees from and against any and all liability, loss, costs and expenses, including costs of tests performed by Buyer, attorneys’ fees and costs of litigation, resulting from any breach of Seller’s obligations or any acts or omissions of Seller. All warranties shall be construed as conditions as well as warranties and shall not be deemed to be exclusive.
Packing, Shipping and Risk of Loss: No charges will be allowed for boxing, wrapping or cartage or storage unless so specified in the Purchase Order. Seller shall pack or otherwise prepare all articles for shipment to secure the lowest transportation rates consistent with timely delivery, meeting carriers’ requirements and safeguarding against damages from weather, transportation, and storage. Risk of loss on all property shipped by Seller to Buyer shall pass to Buyer at the point of destination.
Delivery: Time is of the essence in the performance of the Purchase Order. If the delivery is delayed, the Seller shall pay Buyer liquidated damages.
Inspection: Seller shall permit Buyer’s inspectors and/or customers to have access to Seller’s plant at all reasonable hours for the purpose of inspection of any items or work in progress covered by the Purchase Order. Seller, without additional cost to Buyer, shall provide all reasonable facilities and assistance for the safety and convenience of such inspectors. At the time of the inspections, Seller shall make available to the inspectors, samples of all drawings, specifications in process, preservation and packing data applicable to the items ordered hereunder. If requested, Seller shall promptly furnish to Buyer an inspection certificate. All items shall be subject to final inspection and acceptance at the destination point, notwithstanding any prior payment, inspection, and acceptance. Buyer may, at its option, (1) hold the rejected items for Seller’s instruction at Seller’s risk or (2) return them to the Seller, at Seller’s expense, or (3) terminate this order in accordance with the Termination for Cause provision, below. Seller shall promptly reimburse Buyer for any and all costs of inspection and tests when items offered for final inspection and acceptance do not comply with the requirements of this Purchase Order. No replacement or correction of rejected items shall be made unless otherwise specified on Buyer’s return material orders. Seller shall credit Buyer’s account for the value of the items rejected plus the cost of packaging, inbound freight, and handling.
Confidential Information: Seller acknowledges that, in order to comply with the terms, it will be necessary for Buyer to disclose to Seller certain Confidential Information of Buyer or its customers. Seller agrees it shall not use for its own or any third party’s account or disclose to any third party any such Confidential Information, or copy, retain, or transfer any Confidential Information and will keep forever secret all Confidential Information of Buyer. As used herein, the term “Confidential Information” means any trade secret, know-how or other manner of proprietary information of Buyer or its customers, including specifically, financial data and projections, business plans and concepts and any sales, scientific, manufacturing or technical data, information, design, process, procedure, formula, improvement, blueprints, drawings, schematics or any other information that is retained by Buyer and is not generally known in the industry.
Termination Without Cause: Buyer may terminate this Purchase Order and work to be performed hereunder without cause, in whole or in part, at any time, by written notice to Seller. Such notice shall state the extent and date of such termination and, upon receipt thereof, Seller shall comply with Buyer’s directions pertaining to such termination. The payments from Buyer to the Seller prior to Termination Without Cause will belong to the Seller. Any materials provided by Buyer to the Seller will belong to Buyer.
Default: In addition to termination without Cause, Buyer shall be entitled to terminate this Purchase Order in the event the Seller: (i) defaults in or commits any breach of its obligations to Buyer; or (ii) commits any act of bankruptcy; or (ii) files a petition in bankruptcy or has a petition in bankruptcy (filed against it); or (iv) has a receiver, trustee or custodian appointed or takes possession of any Seller’s assets; or (v) fails to deliver the items in accordance with the delivery schedule specified herein or any written extension thereof; or (vi) fails to replace, repair or otherwise correct any defects with respect to items in accordance with the provision of these terms and conditions. In the event of termination by Buyer pursuant to an event of Default by Seller, Buyer, in addition to its right of termination as set forth above, may (i) purchase similar items elsewhere on such terms and in such manner as Buyer may deem reasonable in its sole and absolute discretion, and Seller shall be liable to Buyer for any excess costs occasioned by Buyer thereby; and/or (ii) provide such materials, supplies, equipment and labor as may be necessary to complete said work, pay for same and be reimbursed by Seller for same; and/or (iii) order all work under this Purchase Order stopped immediately and enter upon the premises and take possession, for use in completing the work, of all materials, regardless of stage of completion, supplies, tools, equipment and appliances of the Seller thereon and complete the work, or have same completed by others, and be liable to Seller for no further payment under this Purchase Order, until final payment is due, and then only to the extent that the unpaid balance of the amount to be paid under this Purchase Order exceeds the damages and expenses of Buyer in finishing the work, and/or (iv) require the Seller to transfer title and deliver to Buyer, as directed by Buyer, all (x) completed supplies and (y) partially completed supplies and materials, parts, tools, dies, jigs, fixtures, plans, drawings, information and contract rights (collectively referred to as “manufacturing materials”) that the Seller has produced or acquired for the terminated portion of this Purchase Order. Upon direction of Buyer, the Seller shall also protect and preserve property in its possession in which Buyer, or Buyer customers, have an interest. Failure of Buyer to enforce any right under this clause shall not be deemed as a waiver of any right hereunder. The rights and remedies of Buyer under this clause shall not be exclusive and are in addition to other rights and remedies provided by law or equity or under the terms of this Purchase Order.
Changes: Buyer shall have the right at any time to make changes in the drawings, designs, specifications, quantities, delivery schedules, shipments, or packaging of any items under this Purchase Order. No change shall be effective unless authorized in writing by Buyer. In the event such changes result in the delay or increase or decrease in expense to Seller, Seller shall notify Buyer immediately and negotiate an equitable adjustment provided, however, that Seller shall, in all events, proceed diligently to perform the work or services or supply the items contracted for under this Purchase Order as so changed. No charge by Seller for such adjustment shall be valid unless submitted to and accepted by Buyer within twenty (20) days from the date of the written notice of such proposed charge. Buyer shall have the right to review or audit Seller’s records in the event of such a request.
Indemnity for Infringement: The Seller shall, at its expense, indemnify and hold harmless Buyer, its customers and all persons claiming under Buyer, against any suit or suits for infringement of any patent, copyright or trademark or any misappropriation of trade secrets, and shall defend and indemnify the aforesaid parties against all damages, costs, and expenses, including all legal expense, incurred by any of them.
Indemnification: Seller agrees to defend, hold harmless and indemnify Buyer from and against any third-party claim arising out of Seller’s acts or omissions, including Seller’s performance of this Purchase Order. Seller shall maintain, in amounts deemed acceptable to Buyer, such insurance as will protect Buyer from said risks and from any indemnified claim. Upon request of Buyer, Seller shall furnish Buyer with a certificate of such insurance providing that at least ten (10) days prior written notice in writing shall be given to Buyer of cancellation or reduction of coverage.
Assignment: Seller shall not assign any rights or claims under this Purchase Order without the prior written consent of Buyer and, absent Buyer’s prior written consent, any such attempted assignment shall be void and of no force or effect. All claims for money due or to become due or to become due from Buyer shall be subject to deduction by Buyer for any setoff or claims which Buyer may have against Seller arising out of this or any other of the Buyer agreement with Seller.
Independent Contractor: The Seller is, and shall be deemed to be, an independent contractor at all times during the performance of the work specified in the Purchase Order.
Remedies and Non-Waivers: Except as otherwise expressly provided, the remedies provided hereunder shall be cumulative and in addition to the rights and remedies in law or equity available to the party. No waiver of a breach or any provision of this Purchase Order shall constitute a waiver of any other breach of any such provision.
Governing Law: This Purchase Order shall be governed by and construed in accordance with the laws of the State of New York, without regard to the choice of law rules of any jurisdiction. Seller and Buyer consent to the exclusive jurisdiction of the United States District Court for the Southern District of New York in connection with the resolution of all claims arising with respect to the Purchase Order and such parties waive any right to assert that such court is an inconvenient forum.
Governing Language: This Purchase Order was written in English, and this will be the language used for legal interpretation.
Injunctive Relief, Specific Performance: The parties hereto acknowledge and agree that any breach of the terms of this Purchase Order could give rise to irreparable harm for which money damages would not be an adequate remedy and accordingly the parties agree that, in addition to any other remedies, each party shall be entitled to obtain interim or injective relief and to enforce the terms of the Purchase Order by a decree of specific performance.