ADDITIONAL TERMS AND CONDITIONS OF PURCHASE ORDERS
(For Pelmor® Laboratories, Inc.)
1. Orders/Delivery. Shipments shall be made under this Contract only upon the issuance by Buyer of separate purchase orders whose receipt shall be acknowledged by Seller within ten (10) business days. The time of delivery shall be as specified in this Contract unless otherwise agreed in writing by Buyer and Seller, time being of the essence with respect to all orders. Any lead times incorporated in this Contract are deemed firm commitments by Seller. Deliveries in advance of the delivery date specified by Buyer may, at Buyer’s option, be returned to Seller at Seller’s risk and expense or Buyer may retain the goods and pay for the same in accordance with the provisions hereof as if such goods were received on the specified delivery date. All excess transportation charges resulting from failure to follow any routing instructions given by Buyer shall be for Seller’s account. Seller shall obtain Buyer’s approval for partial shipments prior to shipment.
2. Packing and Marking. The goods shall be packed to ensure safe and proper carriage of the goods to Buyer in an undamaged condition and Seller shall be responsible for any loss or damage to the goods which may arise from inadequate or inappropriate packing. The goods shall also be marked and packaged by Seller in accordance with Buyer’s marking instructions and packaging specifications. A packing list shall be included with each shipment.
3. Risk of Loss. Risk of loss to the goods shall pass to the Buyer when delivered at the delivery point specified by Buyer.
4. Billing. Payment will be made following receipt of the goods and required documentation as provided in this Contract and the applicable Purchase Order.
5. Payment. Payment will be made following receipt of the goods and required documentation as provided in this Contract and the applicable Purchase Order.
6. Taxes. All taxes arising out of the transactions contemplated by this Contract shall be borne by Seller except as otherwise described on the front of this Contract.
7. Price. If Buyer can purchase goods of comparable quality at a lower cost than the delivered cost of the goods then in effect hereunder and Buyer gives Seller written notice thereof, Buyer may purchase such goods, unless within fifteen (15) days of receipt by Seller of said notice. Seller shall meet such lower delivered cost for any equal quantity of goods thereafter sold hereunder. Any quantity so purchased from another source shall be deducted from any obligation that Buyer may have hereunder, but the Contract shall otherwise remain unaffected.
If Seller shall sell products of like kind and quantity during the term of this Contract to any other customers, at a price which is lower for the same or a lesser quantity than the purchase price then in effect hereunder, the purchase price shall be reduced to such lower price for all shipments made while such lower price remains in effect.
8. Contingencies. Neither party shall be held responsible for any delay or failure in performance hereunder caused by acts of God, war, riots, fire, explosion, flood, strike, lock-out, injunction governmental laws or regulations, or any other cause beyond the control of such party, preventing the manufacture, shipment, acceptance, or use of the goods, provided that the party who is affected or threatened by such event immediately notifies the other party of the nature and estimated effect upon its performance hereunder.
At Buyer’s option, the period specified for delivery of such goods hereunder shall be extended by the period of delay occasioned by any such cause and deliveries omitted shall be made during such extension, or the total quantity shall be reduced by the deliveries affected by the suspension of such performance, but the balance of the Contract shall otherwise remain unaffected. Buyer shall have the option to terminate this Contract without liability to Seller if the period of suspension exceeds or is expected to exceed sixty (60) days. In the event of allocation by Seller as a result of the foregoing, Seller shall allocate its total available supply of goods among Buyer and Seller’s regular customers on a fair and equitable basis.
9. Warranty. Seller warrants clear title to the goods, free of any lien or encumbrance; and that all goods shall be merchantable, of high quality and workmanship and free from defects; shall conform strictly and in all respects with the terms hereof and with the drawings, designs, specifications, descriptions and samples identified in this Contract or in Buyer’s purchase orders; and shall be fit for the purposes intended if the purpose is known or reasonably should be known to Seller. These warranties shall run to Buyer, its successors, assigns, customers, and users of the goods. Seller agrees, at its own expense and whenever and as often as is reasonably requested by buyer, to furnish and deliver to Buyer satisfactory evidence showing that each of said drawings, designs, specifications, descriptions and samples have been fully and completely complied with and that the goods supplied hereunder fully and completely conform thereto. Seller agrees, at its cost, to immediately replace, repair, grant credit for, or make good, as requested by Buyer, any goods not conforming to the foregoing warranties. The foregoing rights of Buyer are not exclusive and shall not limit Buyer’s right to avail itself of any other remedy provided by this Contract, law or equity.
Buyer’s payment, inspection or failure to inspect the goods delivered hereunder shall not release Seller from its obligations under this Contract.
10 Default. In the event of any bankruptcy or insolvency proceeding involving Seller, or in the event of the appointment of an assignee for the benefit of creditors or of a receiver, or if Seller is insolvent or fails to perform any provisions of this Contract, or so fails to prosecute the work as to endanger performance of this Contract or any purchase order thereunder in accordance with its terms and does not cure such failure within a period of ten (10) days (or such longer period as Buyer may authorize in writing) after receipt of notice from Buyer specifying such failure, Buyer may, by written notice to Seller, without any liability whatsoever and without prejudice to any other rights or remedies which Buyer may have under this Contract or in law or equity, terminate, in whole or in part, further performance by Seller of this Contract and any outstanding purchase orders.
In the event of such occurrence, Buyer may complete Seller’s performance by such reasonable means as Buyer determines, and Seller shall be responsible for, and shall indemnify Buyer against, any damages and reasonable costs, including without limitation, attorney’s fees, incurred by Buyer as a result thereof. Any amounts due Seller for goods, work and other items delivered or provided by Seller in full compliance with the terms of this contract prior to such event shall be subject to setoff of Buyer’s additional costs completing the Contract and other damages incurred by Buyer as a result of Seller’s default. Waiver by Buyer of any default of Seller shall not be considered to be a waiver by Buyer of any provision of this Contract or of any subsequent default by Seller.
11 Cancellation or Suspension. In addition to section 10, Buyer shall also have the right to cancel, without cause, further performance of all or any separate part of this Contract or any purchase order issued pursuant to this Contract at any time by written notice to Seller, provided such cancellation is not for purposes of acquiring the goods at a lower price from a third party. On the date of such cancellation stated in such notice, Seller shall discontinue all work as directed by buyer pertaining to this Contract, shall place no additional orders, and shall preserve and protect materials on hand purchased for or committed to this Contract or any purchase order hereunder, work in progress, and completed work both in its own and in its suppliers plants pending Buyer’s instructions, and shall dispose of same in accordance with Buyer’s instructions. Cancellation payment to Seller or refund to Buyer, if any, shall be promptly agreed to by Buyer and Seller based on that portion of the work satisfactorily performed to the date of cancellation including reimbursement for reasonable overhead and profit on such work, plus reasonable and necessary expenses resulting solely from the cancellation, as substantiated by documentation satisfactory to and verified by Buyer with appropriate credits for the disposition of work and material on hand, and amounts previously paid by Buyer. Seller shall be entitled to any prospective profits or damages because of such cancellation.
Buyer further reserves the right, from time to time, upon written notice to Seller, to suspend and reinstate execution of the whole or any part of the Contract or purchase orders without invalidating the other provisions of this Contract.
12. Changes. Buyer reserves the right, from time to time, to change any specification, drawings, delivery dates, quantities and terms covered by this Contract. If such change would materially affect the price or delivery date, Buyer and Seller shall mutually agree upon an equitable adjustment in the price and/or delivery date to reflect the effect of such change, provided Seller shall have notified Buyer in writing of any claim for such adjustment within thirty (30) days from the date of such notice from Buyer, Seller shall not suspend performance of this Contract or any purchase order while Buyer and Seller are in the process of making such changes and any related adjustments.
No substitutions shall be made without the prior written approval of Buyer, Seller agrees that it will not make any process/manufacturing changes which might affect the performance, characteristics, reliability or life of the goods without the prior written approval of the Buyer.
13. Inspection and Expediting. Buyer and its customers, at Buyer’s option, shall have the right to visit the premises of Seller and any of Seller’s suppliers during their normal hours of operation to inspect and test the goods and work in process and to expedite their manufacture and delivery without relieving Seller of its obligations hereunder. Inspection or testing by Buyer shall not constitute “acceptance” by Buyer and Buyer reserves the right to reject the goods for noncompliance with the provisions of this Contract.
14. Buyer’s Property. All tooling, patterns, dies, gauges, jigs, fixtures, and all specifications, drawings, samples, designs and other items and information, including, without limitation, improvements to the goods, furnished by the Buyer to Seller in connection with this Contract shall only be used in the performance of work for Buyer, shall remain the property of the Buyer and, together with all copies thereof, shall be disposed of or returned in good repair, normal wear and tear expected, by Seller to Buyer at Buyer’s direction and expense upon Buyer’s request or the cancellation, termination or expiration of this Contract. Seller assumes risk of loss and damage to said items while in its possession or under its control. Seller shall notify Buyer promptly whenever any items of Buyer’s tangible property are in need of repair or replacement. Such property shall be marked or otherwise adequately identified by Seller as property of Buyer for use only under this Contract and shall be safely stored. SELLER WAIVES ANY RIGHT IT MAY HAVE IN LAW OR EQUITY TO WITHHOLD BUYER’S PROPERTY.
Seller shall safeguard, treat as confidential, and shall not disclose to any third party, use or reproduce, except as provided herein, any of Buyer’s information or data so long as, and to the extent that such information or data does not become part of the public domain through no fault of Seller. These obligations shall survive the termination of expiration of this Contract.
15. Documentation. It is agreed that all technical documentation and other literature necessary for the proper use of the goods will be provided to Buyer with the goods, unless otherwise directed by the Buyer, and its cost is included in the price.
16. Patents and Copyrights. Except where manufactured according to designs and drawings furnished by Buyer, Seller warrants that Buyer’s purchase, use or sale of the goods and associated documentation and literature furnished under this Contract to Buyer, will not infringe any valid patent, trademark, service mark, trade secret or copyright, and Seller agrees to defend any claim, action or suit that may be brought against Buyer or its customer for patent, trademark, service mark or copyright infringement by reason of Buyer’s or its customers’ purchase, use or sale of such goods, documentation, or literature and Seller also agrees to indemnify Buyer and its customers and hold Buyer and its customers harmless against all judgements, decrees, damages, costs and expenses recovered against, or sustained by, Buyer or its customers on account of any such actual or alleged infringement.
17. Insurance. If Seller’s performance requires Seller, its employees, agents or representative to perform services or labor in the plants or on the premises of Buyer, its agents, customers, or users, Seller agrees to indemnify and hold harmless Buyer against all claims and liabilities for injury or damage to person or property arising out of such performance by Seller and to maintain insurance in coverage and amounts acceptable to Buyer during such performance. Seller shall furnish Buyer, upon demand, an acceptable insurance carrier’s certificate showing that Seller has appropriate Public Liability and Property Damage insurance coverage as reasonably determined by Buyer, setting forth the amount of coverage, policy number and date of expiration.
18. Compliance with Laws/Certification Requirements. Seller represents and warrants that no applicable national, state, or local laws or regulations have been or will be violated in the manufacture, sale or delivery of goods sold or services provided hereunder. Seller further agrees to comply, when applicable, with the provisions of the U.S. Fair Labor Standards Act of 1938, and all amendments thereto, and Subparagraphs 1 though 7 of Section 202 of Executive Order 11246 and the applicable provisions of 41 C.F.R. Chapter 60, the texts of which are hereby incorporated by reference. If any of the goods hereunder are purchased for incorporation into products sold under a Government contract or subcontract the terms required to be inserted by that contract or subcontract, shall be deemed to apply to this order. All certification requirements specified in the Contract or purchase orders or of which the Seller has knowledge shall be complied with, Seller agrees to furnish Buyer a certificate of compliance with any such laws and certification requirements in such form as may be requested by Buyer.
19. Assignment and Setoff. Seller may not assign nor subcontract its rights or delegate its performance hereunder without the prior consent of Buyer, and any attempted assignment subcontracting, or delegation without prior written consent of Buyer shall be void. Buyer shall be entitled at all times to setoff any amount owing from Seller or its affiliated companies to Buyer against any mount payable to Seller.
20. Reports. Seller shall furnish to Buyer written reports of the cumulative quantities of goods released hereunder and the status of any goods in process at least quarterly or in accordance with a reporting schedule otherwise agreed to by the parties.
21. Forecast. Any forecast that may be made by Buyer of its requirements shall be made in good faith to assist Seller for planning purchases, but such forecast shall not be deemed a commitment by Buyer.
22. Legally Binding Agreement. This Purchase Order constitutes a legally binding agreement. In the event that you choose to accept the terms and conditions set forth herein and ship the goods to Pelmor, Pelmor’s receipt of the goods shall be deemed an acquiescence by Seller of all of the terms and conditions set forth in the Purchase Order. This Purchase Order need not be signed by Seller in order to be construed as a validly binding contract between the parties.
23. Miscellaneous. The validity, interpretation and performance of this Contract, including purchase orders issued thereunder, and any dispute connected therewith shall be governed and construed according to the laws of the jurisdiction in which the Buyer had its legal domicile. This document constitutes the full understanding of the parties, and no terms, conditions, understanding or agreement purporting to modify or vary the terms of this agreement shall be binding unless hereafter made in writing with reference to this Contract and signed by authorized representative of both parties. These terms and condition of purchase take precedence over Seller’s additional or different terms and conditions, to which notice of objection is hereby given.