ACCEPTANCE AND COMPLETE AGREEMENT. This order
is Buyer’s offer to Vendor/Seller and is not an acceptance by Buyer of
any offer to sell by Vendor/Seller or of any terms and conditions
contained in any such offer. Acceptance of this offer by
Vendor/Seller should be made by (a) executing and returning the
acknowledgement copy, or (b) delivering any of the goods
ordered herein or (c) rendering any of the services ordered
herein. Any additional or different terms proposed by Vendor/Seller
are objected to and rejected unless expressly assented to in
writing by Buyer. This order is a complete and exclusive
statement of the terms and conditions of the agreement
between Vendor and Buyer.
- PACKING AND SHIPPING. All goods shall be packed, rated
and braced to prevent damage or deterioration in accordance
with Uniform Freight Classification Rules and Regulations
and Carrier Tariffs. No charges will be paid by Buyer of
preparation, packing, crating or cartage unless separately
stated in the order. All shipments to be forwarded on one
day via one route shall be consolidated and shipped to
protect lowest transportation charge.
- 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 when
and as specified; (b) Vendor or Seller fails to meet contract
commitments as to exact time, price, quality or quantity; (c)
Seller ceases to conduct its operation in the normal course of
business; (d) Seller is unable to meet its obligations as they
mature; (e) proceedings are instituted against Seller under
the bankruptcy laws or any other laws relating to the relief of
creditors; (f) a receiver is appointed or applied for by Seller;
or (g) any assignment is made by Vendor for the benefit of
creditors. Buyer also reserves the right to cancel for any
other reason permitted by the Uniform Commercial Code
then in effect in the state where Buyer has signed this order.
- INVOICE AND PAYMENT. A separate invoice shall be
issued for each shipment. Unless otherwise specified on this
order, no invoice shall be issued prior to shipment of the
goods and no payment shall be made prior to receipt of both
the goods and a correct invoice. Applicable discount periods
shall be computed from the date of receipt of the goods and
a correct invoice to the date Buyer’s check is mailed. Unless
freight and other charges are itemized, discount shall be
taken on the full amount of invoice.
- WARRANTIES. Seller warrants that:
a. Price. The prices for the goods sold to Buyer
under this order are not less favorable than those
currently extended to any other customer for the
same or like articles in comparable or less quantities.
b. Quality. All goods delivered under this order will
conform to the requirements of this order (including
all applicable descriptions, specifications, and
drawings), will be free from defects in material and
workmanship and will, to the extent not
manufactured pursuant to detailed designs
furnished by Buyer, be free from defect in design
and fit for the intended purposes, and Seller’s
warranties and any more favorable warranties,
service policies, or similar undertakings of Seller
shall be enforceable by Buyer’s customers and the
users of Buyer’s goods, as well as by Buyer;
c. Compliance with Laws. In the performance of this
order, Seller will comply with all applicable Federal,
State, and local laws and ordinances and all lawful
orders, rules and regulations thereunder, including
the Fair Labor Standards Act, 1938, as amended (29
U.S.C. Sec 201-219), the Walsh-Healey Public
Contracts Act, as amended (41 U.S.C. Sec 34-45),
the Contract Work House Standards Act (40 U.S.C.
Sec. 327-330), Occupational Health and Safety Act
(Pub L 91-596), and all lawful rules and regulations
thereunder, and, on its invoice or in other form
satisfactory to Buyer, Seller shall submit certification
with all applicable requirements of Sections 6, 7 and
12 of the Fair Labor Standards Act, as amended, and
of regulations and orders of the U.S. Department of
Labor issued under Section 14 thereof.
- INDEMNITY AND INSURANCE
a. Patent Indemnity. Seller, at its expense, shall
protect, defend and indemnify Buyer, Buyer’s
customers, and the users of Buyer’s goods against
all claims and proceedings alleging infringement of
any United States or foreign patent by any goods
delivered under this order, and Seller shall hold them
harmless from any resulting liabilities and losses,
provided Seller is reasonably notified of such claims
and proceedings. Seller’s obligation shall not apply
to goods manufactured pursuant to detailed designs
furnished by Buyer nor to any infringement arising
from the use or sale of goods in combination with
goods not delivered by Seller if such infringement
would not have occurred from the use or sale of such
goods solely for the purpose for which they were
designed or sold to Buyer. Seller’s obligation shall
extend to the U.S. government only if and to the
extent Buyer has agreed to indemnify the U.S.
b. General Indemnity. Seller, at its expense, shall
indemnify Buyer and save Buyer harmless from any
and all liability, demands, causes of action or claims,
whether well founded or otherwise, including the cost
of defending the same, for bodily injury to any person
or damage to property, either real or personal, of any
person whomsoever in any way arising out of, in the
course of, or in connection with the goods or services
purchased hereunder or the operations of the Seller
in carrying out the provisions and terms of this
c. Insurance. Seller shall maintain such public
liability insurance, including products liability,
completed operations, contractors liability and
protective liability, automobile liability insurance
(including non-owned automobile liability) and
Workmen’s Compensation, and employer’s liability
insurance as will adequately protect Buyer against
such damage, liabilities, claims, losses and
expenses (including attorney’s fees) as are
described in this paragraph 6. Seller agrees to
submit certificates of insurance evidencing its
insurance coverage when requested by Buyer.
- INSPECTION AND REJECTION. All goods, except goods
inspected and accepted by the government at source for
direct shipment to the government, are subject to final
inspection and acceptance by Buyer at destination
notwithstanding any payment or prior inspection at source.
Such inspection will be made or prior inspection at source.
Such inspection will be made within a reasonable time after
receipt of goods.
Buyer shall notify Seller if any goods delivered hereunder are
rejected, and at Buyer’s election and Seller’s risk and
expense, such goods shall be held by Buyer or returned to
Seller. No replacement or correction of nonconforming
goods shall be made by Seller unless agreed to in writing by
- CHANGES AND 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 issued and signed by Buyer.
- 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, war, 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 control. 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 then 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. No goods are to be tendered by
Seller after expiration of the terms specified in this purchase
order without consent of Buyer.
- REQUIREMENTS FOR FEDERAL SUBCONTRACTORS.
Seller shall comply with all Federal requirements applicable
to Federal subcontractors, including without limitation those
requirements relating to equal employment opportunity,
minority business subcontracting, small business
subcontracting, labor surplus area subcontracting and clean
air and water, and at the request of Buyer, Seller shall
execute and shall be bound by any certifications or
agreements incorporating such requirements in forms
approved by Buyer.
- ASSIGNMENTS. No assignment of any rights, including
rights to money due or to become due hereunder, or
delegation of any duties under this order shall be binding
upon Buyer until its written consent has been obtained.
- INSTALLATION. If this order requires Seller to furnish
services of its supervisor expert or other employee in
connection with the installation or any other matter under this
order to perform work on 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 an Federal or State law.
- DECLINE IN PRICE. Buyer shall be protected against
declining prices on the undelivered portion of this order.
Seller may elect to meet price reductions of other
vendors or its own lower prices to other purchasers, but
if Seller should refuse to do so Buyer shall have the right
to cancel any or all of the balance due on this order
without cost to Buyer.
- NOTICE OF LABOR DISPUTE. Whenever Seller has
knowledge that any actual or potential labor dispute may
delay this 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 to which a labor dispute may delay this order. However,
any subcontractor need give notice and information only to its
next higher tier contractor.
- CLEARANCE OF MATERIALS INTENDED FOR PUBLIC
RELEASE. No news release, including photographs and
film, advertisements, public announcement, denial or
confirmation of same or any part of the subject matter of
this order or any phase of any program thereunder shall
be made without prior written approval of Buyer.
- APPLICABLE LAW. This order shall be governed by the
Uniform Commercial Code of the State in which Buyer
has executed this order.
- WAIVER. The right of Buyer to require strict performance
of this order shall not be affected by any prior waiver of
course of performance.
- SUPPLEMENTAL TERMS. The supplemental terms
attached hereto, if any, shall constitute a part of this order.