Terms
and Conditions
Buyer may make changes as to packing, testing, drawings,
specifications or descriptions, types, delivery (postponement only),
destinations and reasonable changes in quantity by written notice to Seller and
without notice to Seller’s sureties or assignees if any change in price will
result there from. Seller must give
Buyer written notice within thirty (30) days of receipt of change and equitable
adjustment made thereto provided, however nothing in the clause shall excuse the
seller from proceeding with the work to be performed hereunder as charged unless
consented to in writing by both parties to the contract.
No variation in quantity of any item called for by this
contract will be accepted unless specified elsewhere in this contract unless
consented to in writing by both parties to this contract.
Buyer reserves the right to inspect and test by its own
inspectors or those designated by Buyer, all raw materials, work in process,
completed materials, jigs, fixtures, etc. at Seller’s plant.
Seller will provide necessary facilities at its own expenses.
Final Inspection and acceptance or rejection of the items therein will be
at place of destination unless otherwise specified herein, Physical receipt of
delivery or prior payment is not final inspection and acceptance.
Returns of defective items or rejects will be at Seller’s risk and
expense. Inspection, failure to
inspect, acceptance or payment will not affect any warranty herein.
Buyer’s count of items is conclusive.
The Seller shall bear the cost of inspecting rejected
material. Material not in accordance
with Buyer’s specifications will be held at the Seller’s risk, awaiting the
Seller’s disposition. Transportation
charges covering any defective products returned shall be at the Seller’s
expense and the risk shall be on the Seller.
Seller agrees that all records of inspection shall be kept
complete and available to the Buyer during performance of this contract and for
three years after completion of this contract.
Seller assumes all risk for (a) loss or damage until delivery
to and acceptance by Buyer at point of destination, regardless of point of
inspection, unless some other point of delivery is specifically set forth
herein, (b) loss or damage to property of, or death or bodily injury of third
parties (c) loss or damage on returns of excess quantities, premature deliveries
or rejects, (d) loss or damage to materials or other property furnished to
Seller by Buyer.
Seller shall hold Buyer harmless against any and all claims
arising out of the handling or use of defective materials, whether or not
inspection and or acceptance has taken place.
If materials hereunder are of an explosive, Inflammable, toxic, or
otherwise of a dangerous nature, Seller shall hold Buyer harmless against any
claims asserted against Buyer on account of any personal or property damage, or
loss or death caused by the handling or use of such material or by the
transportation thereof until completion of unloading at destination and
acceptance by the Buyer.
(a)
The Seller shall
be paid, upon the submission of proper Invoices or vouchers, the prices
stipulated herein for supplies delivered and accepted, or services rendered and
accepted, less deductions, if any, as herein provided unless otherwise
specified. Payment may be made on
partial deliveries accepted by the Buyer when the amount due on such deliveries
so warrants and Seller renders invoice or shipping notice within 24 hours after
shipment. Buyer’s order number,
part number, and package number are to appear on Invoice and Bill of Lading.
Bill of Lading or express receipts must accompany Invoice.
Invoice must be sent in duplicate.
(b)
Each package must
contain the following: Buyer’s
purchase order number, Buyer’s part number, Item quantity, and weight.
No charges will be allowed for packing and crating.
(c)
If Seller’s
deliveries are behind the agreed schedule, Buyer may require Seller to ship by
express shipments in which instance Seller must assume the increased freight
cost regardless of FOB point. Buyer
reserves the right to cancel all of any part of this order upon which deliveries
have been delayed beyond specified delivery dates.
The Seller will assure that proper classification of parts and/or
materials is applied to the Bill of Lading at the time of shipment to provide
the lowest freight rates practical consistent with meeting contractual deliver
requirements.
Seller agrees that no part of the work to be performed will
be subcontracted without Buyer’s prior written consent.
The Seller agrees not to make any assignment or purported
assignment of this contract of any invoices due or to come due hereunder without
the prior written consent of the Buyer. Should
the Seller breach this condition, the Buyer, at its option, may cancel the
contract without any obligation to make any further payments hereunder.
Seller agrees, unless otherwise indicated herein, the prices
include all applicable Federal, State, and local taxes from which the Seller, on
this transaction, is not exempt. The
Seller agrees to use any tax exemption certificates supplied by the Buyer and to
make any appropriate application for refund if any exempt tax has been paid.
Upon refund, the contract price shall be appropriately adjusted or as
applicable; the refund shall be paid to the Buyer.
Failure to comply with the time requirements or any other
contract provisions will subject the Seller to default.
The Buyer, may be written or telegraphic notice of default to the Seller,
terminate the whole or any part of this contract if (a) the Seller fails to make
delivery of acceptable materials within the time specified herein, or (b) the
Seller fails to perform any of the other provisions of this contract or (c) the
Seller so fails to make progress as to endanger performance of the contract in
accordance with tits terms, or (d) the Seller performs or has performed against
if any act of bankruptcy or insolvency or seeks relief under any Federal, State
or local statue pertaining thereto including, but not limited to assignment for
the benefit of creditors, petition for bankruptcy (voluntary or involuntary),
reorganization, receivership, or is unable to pay its bills.
In the event the Buyer terminates this contract in accordance
with the aforementioned paragraph, the Buyer may make such repurchase or take
such action as is deemed necessary under the circumstances, and the Seller shall
be liable to the Buyer for all costs and damages, as is provided in law and
equity. Further, the rights and
remedies of the Buyer as provided herein shall not be exclusive and are in
addition to any other rights and remedies provided by law and equity or
elsewhere under this contract. No
action or inaction on the part of the Buyer nor failure of the Buyer to insist
upon performance of any of the items of this contract nor the failure to
exercise any right hereunder shall be construed as a waiver of that or any other
right or term provided under this contract.
In the event of cancellation of this order, or any part
thereof by the Buyer without excuse, Buyer’s liability, if any, shall not
exceed the costs for labor and material of Seller, incurred at the time of
cancellation, less the salaries.
10.
Patent Indemnity
Seller shall fully protect, hold harmless, and indemnity the
Buyer and stand all expense or loss including counsel fees from any and all
suites at law or equity, and from all damages, claims and demands for actual or
alleged infringement on any United State or foreign patents, trademark or
copyright.
All materials, tools, jigs, fixtures, specifications,
methods, processes, data, designs, drawings, and other property owned or paid
for by Buyer shall be and shall remain the property of Buyer subject to the
removal at any time. All such
property shall be identified and marked as Buyer’s property, used only for
Buyer’s contract and shall be covered by adequate liability, damage and fire
insurance (including extended coverage) for the fair and reasonable value.
Seller shall assume full liability for and maintain and repair the same
and return the same to Buyer in good condition, reasonable wear and tear
expected. Seller shall provide Buyer
with inventories thereof as Buyer may request and certify to Buyer that all use
thereof is expended on the Buyer’s order or orders.
Seller shall not use, reproduce or disclose the contents of
any designs, data, information, drawings, etc. delivered hereunder except as in
necessary for the performance of this contract.
13.
Compliance
with Law
Seller must comply with all applicable laws, governmental
orders and regulations in performing this contract.
Seller guarantees that all material delivered hereunder and
every part and ingredient thereof were produced under terms and conditions of
employment which satisfy all requirements of the U.S. Fair Labor Standards Act
of 1938, as amended.
This contract shall be construed pursuant to the laws of the
State of
This purchase order shall be an enforceable contract on the
terms stated herein upon the earliest of the following times.
(1)
The Buyer’s
receipt of the signed acknowledgement of the Seller’s accepting this order on
such terms.
(2)
The acceptance by
the Buyer of good produced pursuant to this order.
No modification or amendment of this purchase order shall be binding
unless made in writing and signed by both parties.
If Buyer tenders to Seller a written modification or amendment it shall
be deemed accepted unless rejected in writing within twenty days from the date
of such written modifications or amendment.
All items to be delivered hereunder, and all property to be
returned to Buyer, shall be free and clear of any and all liens and encumbrances
whatsoever.
Should material received against this purchase order fail to
meet blueprint specifications and it is determined that sorting or rework is
required to insure continuity of production, the Seller will be back-charged at
an established rate of $20.00 per hour plus a fixed administrative charge of
$100.00 per occurrence in cases where the time allows, the material will be
returned to Seller at Seller’s expense for sorting, reworking or replacement,
as appropriate.
In the event Seller breaches any of the terms of this
contract, Seller’s remedies shall be limited to the costs for producing a
non-defective product and shall not, in any event include consequential damages.