1. ACCEPTANCE: This order becomes the exclusive and entire agreement between the parties for the goods or services herein upon Seller’s written acknowledgement, commencement of performance or acceptance of any payment hereunder. Seller’s acceptance is limited to the terms of this offer and no additional terms or modifications shall be valid unless expressly consented to in writing signed by Buyer.
2. PRICE: Seller warrants that the prices herein do not exceed those charged by Seller to any other customer purchasing the same items in like or similar quantities. Seller represents that the prices charged in all invoices pursuant to this order will not exceed the applicable maximum prices, if any permitted by government price regulations. Seller also warrants that the same prices are available to all of the customers purchasing the same items in like or similar quantities. The prices stated herein shall govern if the Seller increases its prices for similar goods before shipment of goods ordered.
3. PAYMENTS: All payments are contingent upon receipt of fully acceptable goods or services and receipt of complete and accurate documentation including invoices with Bills of Lading, express receipts, bills for prepaid transportation charges attached. The discount period shall be computed from the date delivery is made or complete and accurate documentation is received, whichever last occurs, provided however, if delivery is acceptable by Buyer more than fifteen (15) days prior to the delivery of the shipping dates specified on the face of this purchase order. The discount period shall be computed from the delivery or shipping date specified or receipt of complete and accurate documentation, whichever last occurs.
4. EXTRAS: No charges will be allowed for taxes, transportation, packaging, packing or returnable containers unless specified herein.
5. PACKING: All packing and packaging shall comply with good commercial practices and, where applicable, conform to packaging requirements of the common carrier.
6. INSPECTION: All goods shall be subject to inspection and test by Buyer at all times and places, including during the period of manufacture. All goods are subject also to final inspection and acceptance at destination notwithstanding any payments or prior inspections. In addition to all other rights, Buyer may at its option require Seller to repair or replace nonconforming or defective goods, or refund the price thereof.
7. CHANGES: Buyer reserves the right to make changes at any time in the specifications, drawings or other description of the goods, in methods of shipping or packaging, or in the time or place of delivery. An equitable adjustment in price or time for performance may be requested by either party. A claim by Seller for such an adjustment must be made in writing within thirty (30) days of the request for such change.
8. DATA AND MATERIAL OF BUYER: Except as otherwise provided in this order, any and all property (including tools, working film, printing plates, dies, patterns, data, designs and other information, jigs, fixtures, gauges, measuring devices, templates, equipment, materials and parts, and any and all replacements thereof) which we furnish to or obtain for you (except property for which you pay us), or for which we pay you by means of payments on account, partial payments, progress payments or otherwise, shall be and continue at all times and in all stages of productions to be our property, identified by you as our property and segregated by you from your own property and the property of others in a manner acceptable to us. Without our written consent, you shall not use or permit the use of any such property for or in connection with the production of articles for any person other than us, or for the production of quantities of articles greater at any time than the quantities specified in the purchase orders issued by us to you, or sell, scrap or otherwise dispose of any such property (including any sub-assemblies or assemblies made from any such property) to any person other than us (notwithstanding any such property may appear defective or obsolete or may have been rejected by us) unless and until you shall have first accounted for such property, obtained our written approval of such disposition and (if required by us) received from such person an agreement that such property will not be used or resold except as scrap. Upon our request at any time you shall deliver such property in its then condition or stage of production, and including (unless other arrangements in respect of title to scrap or allowances for scrap loss providing otherwise shall be set forth in this order or agreed upon from time to time in writing by us) all scrap, salvage, and excess property then on hand, to us f.o.b. your plant, otherwise dispose of such property as we direct. Seller shall not use or disclose any data, designs or other information belonging to or supplied by Buyer, nor advertise the fact that goods or services are being supplied Buyer by Seller, nor disclose any details connected with this order to any third parties, except as necessary for performance hereunder.
9. PROTECTION: Seller guarantees that all work and materials furnished on this order shall conform strictly to the requirements of the laws of the state where the work is to be performed and the material furnished, and all local municipal laws and ordinances, and all lawful regulations of any public authorities. Seller shall carry proper insurance protecting Buyer against any claim or damages resulting from violation, or alleged violation of this provision, and shall furnish proof of such insurance upon request.
10. INDEMNITY: In the event Seller, its agents or employees are to perform labor or enter upon the premises of Buyer, Seller shall indemnify and hold Buyer harmless from any loss, cost, damage and expense, including attorneys fees, by reason of personal injury or property damage arising from their performance hereunder. Seller additionally shall maintain adequate public liability and property damage insurance, “including coverage for the contractual obligations assumed hereby.” Where any part of their contract is performed by a subcontractor of Seller, the subcontractor shall carry such insurance, and evidence thereof shall be furnished to Buyer upon request. Seller also indemnifies Buyer, its agents and employees and agrees to hold it harmless from any claims of third parties arising from the use of the goods shipped under this order. If Seller has Buyer’s property in its possession, it agrees to maintain and keep in force until this Order is complete the following insurance: Standard insurance industry Fire, Extended Coverage, Vandalism, Malicious Mischief and All Risk insurance to protect Buyer’s property while in the care, custody and/or control of Settler of its agents. Such insurance will be in the replacement value of Buyer’s property at time of loss. Seller shall supply to Buyer a certificate of insurance which shall provide Buyer thirty (30) days advance notice of the cancellation or material modification of insurance.
11. TERMINATION FOR DEFAULT OF SELLER: (a) The Buyer requires strict performance of each and every term and condition of the purchase order and if goods or services are rejected by a Buyer as nonconforming, the Seller shall have no right to care. Buyer may by written notice to Seller cancel for default this purchase order in whole or, from time to time in part: (i) if the Seller fails to deliver goods or to perform services within the time specified in the purchase order; (ii) if the Seller fails to deliver goods which conform to the contract requirements or to perform any of the provisions of this purchase order, or so fails to make progress as to endanger of this purchase order in accordance with its terms; or (iii) if the Seller becomes involved or commits an act of bankruptcy or if the organization procedures are commenced by or against the Seller, if Seller admits in writing, its inability to pay its debts as they mature. Seller makes an assignment for the benefit of creditors or any general arrangement with creditors; Seller discontinues business or adopts a resolution providing for disillusion or liquidation; Seller becomes generally ineligible to obtain any government approval necessary for Seller to carry out the transactions contemplated by the purchase order: (b) if this purchase order is cancelled by default, Buyer shall have any and all rights and remedies which the law provides for failure to perform in accordance with contract requirements, including the right to charge Seller with the costs incurred by the Buyer fabricating or procuring from other sources goods or services which Seller fails to furnish Buyer in accordance with this purchase order to the extent that such costs shall exceed purchase price set forth herein, and Buyer may set off any such charges against any amount which may become payable by Buyer to Seller, under this purchase order or otherwise.
12. TERMINATION AT OPTION OF BUYER: At its option, Buyer may terminate all or part of the work under this purchase order by written notice to Seller which states the extent and effective date of such termination and upon receipt thereof Seller will comply with the direction pertaining to work stoppage under this order and the placement of further orders or subcontracts thereunder.
13. WARRANTY: Seller warrants that all materials and work hereunder will conform to applicable specifications, drawings, samples and descriptions, and will be free from defects in material and workmanship and, unless of Buyer’s detailed design, will be free from design defect, and will be fit for Buyer’s intended purposes, if known to Seller. Seller also warrants the goods are of fair average quality. Any testing performed or undertaken by Buyer shall not relieve Seller of any warranties.
14. PATENTS/TRADEMARKS: Seller hereby indemnifies and holds Buyer harmless from any loss, cost, damage and expense, including attorneys fees, arising out of any actual or alleged patent and/or trademark infringement involving the manufacture, use or disposition of any item supplied hereunder.
15. COMPLIANCE WITH LAWS: Seller agrees to comply with all applicable local, state and federal laws and regulations, including but not limited to, Fair Labor Standards Act, Walsh-Healy Act, Fair Packaging and Labeling Act, and Occupational Safety and Health Act of 1970, and agrees to indemnify Buyer from any loss, cost, damage and expense, including attorneys fees, for failure to do so.
16. ASSIGNMENT: Seller’s rights and obligations hereunder may not be assigned without Buyer’s prior written consent.
17. NEW MATERIAL: Except as to any goods and components thereof which it is herein expressly provided need not be new. Seller represents that the goods and all components thereof to be furnished under this purchase order are new (not used or reconditioned and not of such an age or so deteriorated as to impair their usefulness or safety). If at any time during the performance of this purchase order, Seller believes that furnishing of goods or components thereof which are not new is necessary or desirable, it shall notify Buyer immediately in writing.
18. WAIVER: Except as expressively set forth in this purchase order, no delay or omission on the part of the Buyer in exercising any rights hereunder shall operate as a waiver of such right or any other right for remedy.
19. LAW GOVERNING: This purchase order shall be governed by the Uniform Commercial Code.
20. REMEDIES: The remedies provided Buyer herein shall be cumulative and in addition to any other remedies provided by law or equity. No waiver of any breach hereof shall constitute a waiver of any other breach. The laws of the state shown in Buyer’s address printed on the face of this order shall apply in the construction hereof.
21. RISK OF LOSS: Seller shall bear the risk of any loss, termination or damage until goods are delivered as herein required.
22. CANCELLATION: This order is cancelled if the goods are not delivered by the date specified.
CAPTIONS: The captions herein are used for convenience only, and they do not form a part of the purchase order or in any way affect or modify any of its terms or provisions.