1. ACCEPTANCE: This order is accepted by return of the signed acknowledgment copy hereof. Any additional or different terms or conditions proposed by Seller shall not become a part of this order unless expressly accepted in writing by Purchaser. It is agreed and understood that this order contains the entire and only agreement between the parties respecting the subject matter hereof and supersedes all pre-existing agreements or arrangements between the parties. Any representation, affirmation of fact, or any promise or condition in connection therewith not incorporated herein shall not be binding on either party. No change, modification, renewal, ratification, rescission, termination, notice of termination, discharge, abandonment, or waiver of this agreement, or of any of the provisions hereof or any representation, promise, or condition relating to this agreement shall be binding upon Purchaser unless made in writing and signed on its behalf by a purchasing representative of the Purchaser authorized to sign such documents.
2. PACKING: No charges shall be made for boxing, wrapping, or cartage, unless noted on this order.
3. CHANGES: Purchaser may at any time make changes in any one or more of the following: (1) drawings, plans, designs, and specifications, (2) quantities, (3) delivery schedule, (4) place, manner, or time of delivery. If any such change increases or decreases the cost of the goods to be provided or results in an extension of the shipping schedule, Seller shall give Purchaser written notice stating the effect of such change within ten (10) days after receipt of such change. No claim for an increase in price or schedule extension shall be recognized unless such change was authorized in advance and in writing by Purchaser’s purchasing representatives. In addition, no substitutions, alterations, or modifications to the specified or approved materials and/or equipment of this Order will be allowed without the written consent of Purchaser and its Client.
4. PREPAID FREIGHT: Attach to original invoice any prepaid freight or express bill for prepaid freight or express charges.
5. PAYMENTS: All progress payments and final payment mentioned in this Purchase Order are contingent upon and subject to Purchaser’s and its Client’s acceptance of all Work performed by Seller. Anything in the Purchase Order to the contrary notwithstanding, receipt of payment by Purchaser from its Client shall be a condition precedent to the right of Seller to receive payment. The date invoices are received by Purchaser will be the date any discount period will begin.
6. ASSIGNMENTS: Seller may not assign any portion of the work, any monies due, nor any right or duty hereunder without the prior written consent of Purchaser. Any such assignment by Seller without Purchaser’s prior written consent shall be void. In addition, any assignment of monies due against this Purchase order without proper notification to, and prior written consent of the Purchaser, shall be void.
7. RELEASE OF LIENS: Seller agrees to indemnify and hold harmless Purchaser and its Client from any liens or claims of lien and will keep Purchaser’s Client’s property free of any liens that may allegedly arise in the course of work performed pursuant to this order.
8. WARRANTIES: Seller warrants that the goods or services provided will conform in all respects to requirements of this order, and will be free from defects in materials, workmanship, and design for one (1) year from the date of Purchaser’s Acceptance at start-up, or within eighteen months after shipment, whichever occurs first. Seller further warrants that the goods provided will be of merchantable quality and fit for the purpose intended. In the event of a breach of this warranty, Seller shall repair and/or replace the defective goods and resultant loss and damages at no cost to Purchaser or its Client and shall warrant any repair and/or replacement for a period of one (1) year thereafter, or the original warranty conclusion, whichever is later. In addition to any express warranties contained herein or other warranties made by Seller, all warranties set forth in the Uniform Commercial Code shall similarly apply.
9. PERFORMANCE GUARANTIES: Seller guarantees that the equipment supplied by it will be capable of performance as set forth in this purchase order and/or Purchaser’s purchase specifications. This guarantee assumes that the equipment will be used under the conditions specified by Purchaser, and that it will be properly installed, operated, and maintained. If it is shown that the performance guarantee is not met, as evidenced by proper tests reports to Seller within one year after jobsite start-up or eighteen months after shipment, Seller agrees to make necessary changes, adjustments, or replacements at no cost to the Purchaser or its Client.
10. CANCELLATION: Time is an essential element in the performance of this Order. Purchaser may cancel this Order if Seller ceases to conduct his operations in normal course of business, or if Seller is unable to meet his obligations as they mature, or if proceedings under the Bankruptcy or Insolvency Laws are brought against Seller, or if a Receiver is appointed or applied for, or any assignment for benefit of Creditors is made by Seller, or in the event of default by Seller to perform to the terms and conditions of this Order.
11. TERMINATION: Purchaser reserves the right, at any time and for its convenience, to terminate this Order or any such Blanket Purchase Order in whole or in part by written notice to Seller. Immediately upon receipt of such notice, Seller shall stop all work hereunder except as otherwise directed by Purchaser. If Seller is not in default of any of its obligations hereunder at the time of such termination, Purchaser shall pay to Seller, as Seller’s sole and exclusive remedy, an amount equal to: (a) reasonable and documented costs incurred by Seller prior to termination, plus the reasonable profit prorated on the portion of work completed less the disposal or retention value of termination inventory; and (b) the reasonable and necessary cost, if any, incurred by Seller in terminating the work. The above amounts, plus prior payments, shall in no event exceed the Contract Price as prorated to the portion of the order completed as of the time of Seller’s receipt of such notice
12. RETURNS: No goods shall be returned to Seller without prior written authorization to Buyer. Returns must be returned within thirty (30) days of such authorization at Buyers cost. If Buyer returns goods in the manner required under the previous sentence, and if the returned goods are (a) in new, unused, unopened, and undamaged condition; and (b) not more than 12 months after the original invoice date; the returned goods will, subject to the applicable handling charge, be accepted by Seller for return. Used or discontinued goods or parts or goods specially manufactured will not be accepted for credit unless specifically agreed to by Seller in its sole discretion. Buyer’s sole remedy for returns of goods shall be a credit for the purchase price less any handling charges. Returned goods are subject to an applicable, reasonable restocking charges.
13. DELIVERY: Unless otherwise stated on the face hereof, delivery shall be F.O.B., at the designated destination and delivery terms on international shipments will be in accordance with the generally recognized principles and practices as referenced in INCOTERMS 2010.
14. PROPERTY RIGHTS: All drawings, blueprints, tracings, or other items prepared by Seller and paid for by Purchaser shall be the property of Purchaser, and such items as well as any furnished hereunder by Purchaser to Seller, shall be delivered to Purchaser upon completion or cancellation of this order. No reproductions thereof shall be made except as authorized in writing by Purchaser.
15. SPECIFICATIONS AND CODES: Seller is responsible for meeting all requirements of this order as well as all applicable specifications and codes. Where required, Seller shall submit for Purchaser’s review, plans and specifications. Approval thereof by Purchaser, shall in no way relieve Seller from fulfilling all requirements and obligations of this order.
16. CLEARANCE FOR PUBLIC RELEASE: No information relative to this order relative to the purchase or use of materials or services to be published or disseminated without first obtaining Purchaser’s written consent.
17. RIGHTS AND REMEDIES: Waiver by Purchaser of any provision hereof shall not constitute a waiver of any other provision, nor shall it affect in any manner, any right or remedy of Purchaser in the event of any breach or default, whether similar or not.
18. PRICING: The Seller agrees to the prices and conditions as set forth herein. The goods shall be invoiced at prices in effect on date of order and are firm and not subject to escalation.
19. COMPLIANCE WITH LAWS: Seller shall comply with all applicable federal, state, and local laws and regulations that may affect this order.
20. OSHA: All materials, equipment supplied and/or work performed under this purchase order must comply with the Occupational Safety and Health Act of 1970, (OSHA), and/or Mine Safety and Health Act of 1977, (MSHA).
21. EEO: The Seller shall comply fully with the requirements of Executive Order Numbers 11246 as amended, 11625, 11701, and 11758 relating to employment practices, additional provisions of 41 CFR 60-1.4, 60-250.4, and 60-741.4 are hereby incorporated by reference, and Seller agrees to adhere to said regulations.
22. INDEMNITY: Seller does hereby agree to defend, indemnify and save harmless Purchaser and its Client, Owner, its employees, agents, and authorized representatives from and against all liability to others and all claims, causes of action and suits of others, for personal injury (including death) or property damage,, arising out of acts or failure to act of employee, contractors, or agents of Seller at the premises of Owner or arising out of defects in the design, equipment, materials or other items supplied by Seller pursuant to this Order. The obligations of Seller herein shall not extend to any liability with respect to, or arising from any claim, damage, loss, or expense which is attributable to the sole negligence or willful misconduct of the indemnified parties. This indemnity shall survive final payment indefinitely.
23. INSURANCE: At Seller’s sole cost and expense, Seller shall maintain in full force and effect the minimum insurance as detailed in Attachment B, CERTIFICATE OF LIABILITY INSURANCE during the life of the Purchase Order including the warranty/guarantee periods. SELLER shall deliver to Purchaser an original certificate of insurance indicating that the insurance set forth hereinabove is in effect, which provides for no less than thirty (30) days prior written notice to Purchaser from the insurer of material changes, cancellation, or non-renewal. The policies of insurance shall contain a provision naming Purchaser, its parent, subsidiaries, divisions, and affiliated companies and its and their officers, directors, employees, agents, heirs, assigns, successors in interest, and representatives, and Owner as additional insureds.
24. WAIVER OF SUBROGATION: Supplier hereby waives all such present and future rights of subrogation and agrees to defend and indemnify Purchaser and Owner, their agents, servants, employees, officers, and representatives in connection with the Purchase Order from all such subrogation claims.
25. FORCE MAJEURE: Seller shall not be liable for any failure to perform this agreement when such failure is due to circumstances beyond its control. Circumstances beyond the control of Seller shall be deemed to include, but shall not be limited to, acts of God, governmental action, accidents, labor trouble, and inability to obtain materials, equipment, or transportation. 21.
26. WAIVER: No oral statements, recommendations or assistance given by a representative and/or distributor of Seller to Buyer or its representatives in connection with the use of the goods shall constitute a waiver by Seller of any of the provisions hereof or affect Seller’s liability herein.
27. ARBITRATION: Except for any action where the sole relief sought is an injunction, any controversy or claim arising out of or relating to these T&Cs, or the making, performance or interpretation thereof, including without limitation alleged fraudulent inducement thereof, shall be settled by binding arbitration in the city of Seller’s choosing in the state of Seller’s business address as shown on the Response, by one arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Judgment upon any arbitration award may be entered in any court having jurisdiction thereof.