Terms and Conditions
1. ACCEPTANCE AND COMPLETE AGREEMENT. This Purchase Order is limited to the terms and conditions specified on the face of this Purchase Order and this document and any attachments referenced therein. Buyer does not agree to any proposed addition, alteration, or deletion by Seller unless agreed to in writing by both parties. Any additional or different terms proposed by Seller are objected to and rejected unless expressly assented to in writing by Buyer. This Purchase Order is subject to the terms and conditions of any applicable written agreement between Seller and Buyer. In the event of a conflict between the terms of this Purchase Order and the terms of any such written agreement, the terms of the written agreement between Buyer and Seller shall govern and control. Acceptance of this order by Seller should be made by (a) executing and returning an acknowledgement copy, or (b) delivering any of the goods ordered herein, or (c) rendering any of the services ordered herein. Acceptance of this Purchase Order also denotes acceptance of Buyer’s Supplier Quality requirements unless otherwise agreed to in writing.
2. ORDER NUMBERS. Buyer will communicate Purchase Order to Seller by telephone, fax, email, or other electronic means. Seller shall include Purchase Order number on every packing list, invoice, and every other communication related to this order.
3. PACKING AND SHIPPING. All items must be properly prepared for shipment to secure lowest transportation rates, comply with carrier regulations, and to adequately protect Buyer’s goods. No charges will be paid for by Buyer for packing, crating, or cartage unless so stated in the order. All shipments to be forwarded on one day via one route must be consolidated. To the extent practicable, items ordered under separate Purchase Order numbers shall be segregated within the pallet, box, or shipping container. A separate packing sheet for each order included in the shipment, showing Purchase Order number, must be included with each shipment.
4. DELIVERY. Time is of the essence for shipment or delivery and to any other performance required of Seller. Shipment or delivery shall be in accordance with the schedule set out in the Purchase Order and in exact quantities ordered. If it appears Seller will not meet such schedule or if Seller fails to meet such schedule, Seller shall, upon request of Buyer and in addition to any other rights or remedies provided to Buyer by law or under this Purchase Order, ship via expedited routing necessary either to meet such schedule or to recover the maximum possible time lost by failure to ship or deliver on schedule. The difference between the expedited routing and the Purchase Order routing cost shall be borne by Seller. Buyer reserves the right, at Seller’s expense, to return any goods shipped in advance of the schedule set out in the Purchase Order.
5. CANCELLATION. Time is of the essence in this order. Buyer reserves the right to cancel this order, or any portion of this order, without liability, if (1) delivery is not made and as specified, (2) Seller fails to meet contract commitments as to time, price, quality, or quantity, (3) Seller ceases to conduct its operation in the normal course of business, (4) Seller is unable to meet its obligations as they mature, (5) proceedings are instituted against Seller under bankruptcy laws or any other laws relating to the relief of creditors, (6) a receiver is appointed or applied for by Seller, or (7) any assignment is made by Seller for the benefit of creditors.
6. INSPECTION. All items are subject to final inspection and acceptance by Buyer at the destination notwithstanding and prior payment or inspection at the source. Such inspection will be made within a reasonable time after receipt of goods. Acceptance of any items by Buyer shall not be deemed to alter the obligations of Seller or the rights of Buyer and its customers under the Warranty clause or any other provisions of this Purchase Order.
7. REJECTION. Buyer shall notify Seller if any items delivered hereunder are rejected for being nonconforming and, at Buyer’s election and Seller’s risk and expense, such items may be returned to Seller, up to and including entire order. Seller shall issue Buyer a credit for all costs and expenses with respect to such rejected items or replace or correct rejected items, at Buyer’s election.
8. WARRANTIES. Seller warrants that all goods delivered hereunder shall be merchantable, fit for their particular purpose and free from defects, whether latent or apparent. All goods delivered under this Purchase Order will conform to the requirements of this Purchase Order (including all applicable descriptions, specifications, and drawings). Seller warrants that all services performed hereunder shall be performed in a good and workmanlike manner by qualified, trained personnel, free from errors. Seller’s warranties shall be enforceable by Buyer and shall run to Buyer’s Customers.
9. CHANGES & DISCREPANCIES. Any discrepancies, omissions, or lack of clarity in drawings, specifications, or Purchase Orders must be referred to the Buyer for written interpretation before this order is processed. Buyer shall have the right at any time before completion of the order to make changes in quantities, in drawings and specifications, in delivery schedules, and in methods of shipment and packaging. If such changes cause an increase or decrease in price or in the time required for performance, Seller shall promptly notify Buyer thereof in writing and equitable adjustment shall be made. Changes shall not be binding upon Buyer unless evidenced by a Purchase Order change notice and authorized by Buyer.
10. INVOICES/PAYMENT. A separate invoice shall be issued for each shipment and for each Purchase Order, with the Purchase Order number stated on the face of the invoice. No invoice shall be issued prior to shipment of goods, and no payment shall be made prior to receipt and acceptance of conforming goods and invoice. Payment terms commence upon receipt of a correct invoice.
11. INDEMNITY. Seller shall indemnify, hold harmless, and protect Buyer, its Affiliates and their respective officers, directors, agents, representatives, employees, subcontractors, customers, users of Seller’s goods and services from any and all claims (including, without limitation, claims by vendees of Buyer), liabilities, damages and expenses (including attorney’s fees) arising from or related to (1) the negligence (including strict liability), gross negligence, or willful misconduct of Seller, it’s Affiliates, and their respective employees, contractors, subcontractors, vendors, and agents (the “Seller Parties”), (2) contamination of or adverse effect on the environment, (3) violation of any law or regulation, (4) alleged infringement of any patent, copyright, or trademark or violation of any other intellectual property right of a third party. This indemnity shall apply without regard to whether the claim, damage, liability, or expense is based on the breach of contract, breach of warranty, negligence, strict liability, or other tort. This indemnity shall survive delivery and acceptance of goods or services. In any interparty dispute, the prevailing party shall be entitled to reasonable legal costs and expenses, including attorney’s fees.
12. INSURANCE. Seller shall maintain such public liability insurance including products liability, completed operations, contractor’s liability, and protective liability, automotive liability insurance (including non-owned automobile liability), and Worker’s Compensation, and employer’s liability insurance as that will adequately protect Buyer against such damage, liabilities, claims, losses and expenses (including attorney’s fees) as are described in paragraph 11.
13. PATENTS & TRADEMARKS. Seller warrants that all goods and services applied under this Purchase Order shall not infringe on any third party’s patent, copyright, trade secret, trade name, trademark or service mark, or other proprietary right.
14. TITLE & RISK OF LOSS. Seller warrants title to all goods sold and bears the risk of loss or damages to the items purchased under this Purchase Order until they are delivered in conformity with this Purchase Order at Buyer’s delivery point specified in this Purchase Order or installed, as required pursuant to the Purchase Order, and, upon such delivery or installation, title shall pass to the Buyer. Passing of title shall not constitute acceptance of the items by Buyer.
15. CONFIDENTIALITY. Seller shall keep confidential all information designated as confidential by Buyer or reasonably known to be confidential, including, but not limited to designs, processes, drawings, specifications, reports, data, and other technical or proprietary information and the features of all parts, equipment, tools, gages, patterns, and other items furnished or disclosed to the Seller by Buyer in conjunction with this Purchase Order (“Buyer’s Confidential Information”). Seller shall not disclose such information to any third party without written consent of Buyer and shall not use Buyer’s Confidential Information except as contemplated in this Purchase Order. Upon completion or termination of this Purchase Order, Seller shall return all Buyer’s Confidential Information to Buyer or make such other disposition thereof as may be directed and approved by Buyer and shall certify to such return or destruction.
16. COMPLIANCE. Seller warrants that all goods and services supplied under this Purchase Order shall comply with all federal, state, and local laws, rules, regulations, and ordinances at the time of delivery or performance. For on-site performance of services, if applicable, Seller shall adhere to all safety, health, or other administrative requirements, rules, regulations, or procedures of Buyer and its facilities where services are performed and shall provide to Buyer a health and safety declaration.
17. SUBCONTRACTING & ASSIGNMENT. Seller shall not assign this Purchase Order or any rights hereunder, nor delegate any duties, nor subcontract any work, without first securing the written approval of Buyer. Any attempts to do so will be null and void. The price quoted by Seller includes the price of any goods or services obtained from any subcontractor or supplier to Seller, unless otherwise agreed in advance and in writing by Buyer. Seller shall incorporate these terms and conditions on any Purchase Order or subcontract approved by Buyer and procured from third parties pertaining to this Purchase Order. Seller shall remain fully responsible for all work performed by such third parties and shall indemnify and hold Buyer harmless for any payment required to be made to any such parties.
18. WAIVER. No waiver of any default by either party shall act as a waiver of a subsequent or different default. The right of Buyer to require strict performance of this Purchase Order shall not be affected by any prior waiver of course of performance.
19. NOTICE OF LABOR DISPUTE. Whenever Seller has knowledge that any actual or potential labor dispute may delay this Purchase Order, Seller shall immediately notify and submit all relevant information to Buyer. Seller shall insert the substance of this entire clause in any subcontract hereunder as which a labor dispute me delay this order.
20. INSTALLATION. If this Purchase Order requires Seller to furnish services of its supervisor, expert, or other employee in connection with the installation or any other matter under this Purchase Order to perform work on the Buyer’s premises, Seller agrees, whether or not a separate charge is made therefore, that such supervisor, expert, or other employee of Seller, in performing such services, is not and shall not be deemed to be the agent or employee of Buyer. Seller assumes full responsibility for its acts and omissions and agrees to save Buyer harmless from any claims whatever arising therefrom. Seller assumes exclusive liability for any payroll or other taxes imposed upon the employer by any Federal or State law.
21. PUBLICITY. Except as may be required by law or governmental rules or the requirements of any exchange on which securities of Seller or an Affiliate of Seller are traded, Seller shall not, without the prior written consent of Buyer, which may be granted or withheld at Buyer’s sole discretion (1) use Buyer’s name, brand, trademarks, or any descriptions of Buyer and/or its industry that would allow a third party to identify Buyer (“Buyer’s Brand”), in advertising or promotional material, publicity releases, or for any other commercial purpose, (2) in any manner advertise, publish, or disclose the fact that Buyer has placed this Purchase Order with Seller, or (3) disclose the subject matter or terms and conditions of this Purchase Order. Seller shall comply with the restrictions accompanying Buyer’s consent, including but not limited to scope and term limitations. Unless otherwise specified by Buyer in writing, Buyer consents shall be deemed to be “initial use only” and will expire immediately after Seller’s first use of Buyer’s Brand as set forth in the applicable Buyer’s Consent. Any and all subsequent uses, including but not limited to re-publication of advertising or promotional material, duplicate or follow-up press releases or like publications shall each require an updated consent, duly executed by the Buyer. In no case shall Seller or an Affiliate of Seller use Buyer’s Brand or information about Buyer’s industry, equipment, or operations in a manner that disparages Buyer.
22. FORCE MAJEURE. Seller shall not be liable for any delay or failure to deliver any or all of the goods covered by this Purchase Order in the event of delay or failure caused by governmental regulations, labor disputes, strikes, wars, riots, insurrection, civil commotion, mobilization, explosion, fire, flood, accident, storm, or any act of God, failure of crops or supplies, delays of common carriers, embargoes, or other causes beyond Seller’s reasonable controls. Similarly, Buyer shall not be liable for failure to take delivery of the goods for any of the above causes, or other causes beyond Buyer’s reasonable control if they render it commercially impracticable for Buyer to receive or use the goods on a timely basis. Where only a part of Seller’s capacity to perform is excused under this paragraph, Seller must allocate production and deliveries among itself and its various Customers under contract for similar goods during the period. The allocation must be made in a fair and equitable manner. Where either Seller or Buyer claims an excuse of nonperformance under this paragraph, it must give notice in writing to the other party. Seller shall not be obligated to sell, nor Buyer obligated to purchase at a later date that portion of the goods that Seller is unable to deliver, or Buyer is unable to receive or use because of any of the aforementioned causes.
23. TERMINATION. Buyer may terminate all or any portion of this Purchase Order at ay time by giving notice to Seller. In the event of termination without cause, Buyer’s liability shall be lesser of (1) a reasonable price for raw materials, components, work in progress, and any finished units on-hand, or (2) the contract price per finished unit, after giving affect to any discount Buyer would otherwise be entitled to. In the event of termination without cause of any separate services specifically ordered, liability shall be lesser of: (1) a reasonable price for properly performed services rendered prior to termination, or (2) the contract price for the services. If an hourly or other time-based rate for services is specified in this Purchase Order, such rate shall be used in determining a reasonable price. THE FOREGOING STATES THE BUYER’S ENTIRE LIABILITY FOR TERMINATION. Additionally, Buyer may, by notice to Seller, terminate in whole or in part this Purchase Order in the event of suspension of Seller’s business, insolvency of Seller, institution of bankruptcy, reorganization, or liquidation proceedings by or against Seller, the appointment of a trustee or receiver for Seller’s property or business, any assignments by Seller for the benefit of creditors or a breach that is not cured after notice detailing such breach. The rights and remedies of Buyer provided in this Termination clause shall not be exclusive and are in addition to any other rights and remedies provided by law or under this Purchase Order.
24. APPLICABLE LAW/MISCELLANEOUS. Section headings are for convenience only and shall have no legal or interpretive effect. This Purchase Order shall be governed by and construed under the laws of the State of Texas, without regard to its conflicts-of-laws rules. In the event any dispute arises under this Purchase Order that exceeds $25,000 that cannot be resolved by informal negotiation, the parties agree to participate in mediation as a condition precedent to pursuing litigation. The mediation shall be conducted by a licensed, qualified mediator in Austin, Texas. Nothing herein shall be construed as creating an exclusive relationship between Buyer and Seller regarding the goods or services. Buyer reserves the right to engage other persons or entities to provide goods and services similar to those provided hereunder.