TERMS AND CONDITIONS
1. Acceptance. Please acknowledge acceptance of this Purchase Order in writing by return mail, advising of price and shipping date if they are not shown on this Purchase Order. In any event, acceptance of this Purchase Order (whether by such writing, shipment, delivery of goods or services or otherwise) constitutes acceptance of all terms and conditions set forth in this Purchase Order, notwithstanding any statements to the contrary in any other document, including but no limited to any proposal, quotation, confirmation, order acknowledgment, invoice or shipping documents relating in any manner to this Purchase Order or to the goods or services sold by Seller to Purchaser.
2. Entire Agreement. This Purchase Order constitutes the entire agreement between the Purchaser and Seller pertaining to the subject matter of this Purchase Order, and there are no representations, promises or obligations of Purchaser except as expressly set forth herein. This Purchase Order shall be considered a notification of Purchaser's objection to any terms or conditions of sale included in any document of Seller, including but not limited to any proposal, quotation, confirmation, order acknowledgment, invoice or shipping documents, if such terms or conditions are additional to, different from, inconsistent with or materially alter the terms and conditions set forth in this Purchase Order. This Purchase Order may not be modified except by a writing signed by one of Purchaser's duly authorized officers or employees.
3. Prices. Without written authority from Purchaser, this Purchase Order must be filled at prices no higher than those stated in this Purchase Order, or, if no prices are so stated herein, at prices no higher that those last quoted or billed to Purchaser by Seller or at the prevailing market price at the time and place of shipment, whichever is lower.
4. Packing and Cartage Charges. Charges for packing, loading, cartage or other extras unless otherwise stated in this Purchase Order, are the responsibility of Seller and not the Purchaser. The method and manner of packing shall be the sole responsibility of Seller and any loss, breakage or late delivery attributable to improper packing or handling shall be the entire responsibility of Seller.
5. Quality and Seller's Warranties. In addition to all other express warranties made and all warranties implied by law. Seller warrants to Purchaser that all goods and services covered by this Purchase Order will be in exact accordance with such order or other applicable specifications or description furnished by Purchaser to Seller with respect to such goods or services, and that all such goods are merchantable, are free from defects in material, design and workmanship, are fit for all purposes for which such goods are ordinarily used, and are fit for the purpose for which they are sold to Purchaser (of which purpose Seller is hereby advised unless stated to the contrary herein). Seller also warrants that Seller has good title to the goods free and clear of any security interest, lien, or other encumbrance, and that such goods are delivered free of any rightful claim for infringement or the like. All of the foregoing warranties are also expressly made for the benefit of Purchaser's customers. Seller will indemnity, reimburse and hold harmless Purchaser and its customers for all damages, costs and expenses of any kind, including all special incidental or consequential damages, resulting from the breach of any foregoing warranties. A Purchaser's option, Seller, at its expense, shall repair or replace any goods that fail to comply with the foregoing warranties, but such repair of replacement shall not relieve Seller from any additional liability for which it is responsible either in accordance with this Paragraph 5 or otherwise in accordance with law. SELLER WAIVES ANY AND ALL DISCLAIMERS OF WARRANTIES OR LIMITATIONS OF LIABILITY APPEARING IN ANY DOCUMENT RELATING TO THIS PURCHASE, INCLUDING BUT NOT LIMITED TO ANY QUOTATION, PROPOSAL, ORDER ACKNOWLEDGEMENT, INVOICE OR SHIPPING DOCUMENTS, AND SELLER AGREES THAT THE TERMS AND CONDITIONS STATED IN THIS PARAGRAPH 5 SHALL DETERMINE SELLER'S LIABILITY RELATING TO THE GOODS OR SERVICES SOLD.
6. Quantity. The specific quantity ordered may not be changed except by a writing signed by one of Purchaser's duly authorized officers or employees.
7. Inspection, Approval, and Rejection. All goods delivered and services provided must be as specified in this Purchase Order and will be subject to inspection and approval of Purchaser after delivery. Purchaser shall have the right at all reasonable times to inspect at the Seller's manufacturing facilities any goods being manufactured by Seller for Purchaser. Even if prior payment is made by the Purchaser in order to obtain a prompt payment discount or for other reasons. Purchaser shall have the right to inspect the goods prior to its acceptance of them. Following acceptance of the goods by Purchaser. Purchaser reserves the right at the risk and expense of Seller and without invalidating the remainder of the order, to reject or revoke acceptance of all or such portion of any shipment which may be found defective or which fails to comply with any applicable specifications or any warranties of Seller. Purchaser, at its option and at Seller's risk and expense, may hold such goods for disposition or may return them to Seller. If this Purchase Order contemplates installment shipments a late delivery of any installment or a delivery of non-conforming goods in any installment shall, at Purchaser's option, be deemed to have substantially impaired the value of the entire contract and all subsequent installments, so as to constitute a complete breach and repudiation by Seller of the entire contract. In that event, Purchaser may cancel any subsequent installments and/or pursue any other applicable remedies against Seller. Payment for or acceptance of part of an order or an installment shipment by Purchaser shall not be deemed to constitute acceptance of any other part of an order or of an installment shipment.
8. Late Delivery. Time being of the essence of this order, Purchaser reserves the right to cancel all or any portion of this order if delivery is not made when and as specified, and to charge Seller for any loss attributable to such improper delivery.
9. Method of Shipment. All Shipments must be made by the least expensive route and means available, unless otherwise specified by Purchaser in writing. If shipments by rail are made to arrive other than by the local railroad directly serving Purchaser's plant without Purchaser's prior written authorization additional freight and switching cost will be charged to Seller's account and deducted in settlement of the account.
10. Carload Shipments. Railroad cars must be consigned to Purchaser. All orders for reconsignment or delivery of cars consigned to the Seller or to its order must be sent to the railroad agent directly. Seller will be held responsible for full freight when carload shipments are not loaded to the minimum specified by railroad classifications and tariffs. Until bills of lading, advice of shipments of goods and all other documentation necessary for Purchaser to obtain possession of the goods are received at Purchaser's office. Purchaser will refuse to receive the goods and car service charges accruing will be charged to Seller and deducted in settlement of the account. All bills of lading and advises must show gross tare and net weights. When no weights are given, the weight as determined by Purchaser will govern settlement.
11. Invoices and Shipping Notices. All shipping notices and invoices (in duplicate) along with Bill of Lading or Express Receipt must be mailed by Seller to the General Accounting Department of Purchaser not later than the day of shipment. Invoices must specify separate amounts for labor, material, and state sales/use tax when applicable.
12. Infringement. Seller warrants that the goods and services purchased by this Purchase Order do not infringe any patents, trademarks, trade names, copy rights, trade secrets or any other proprietary rights. Seller as a condition of sale agrees to assume at Seller's sole expense the defense of all suits or proceedings for infringement of patents, trademarks, trade names, copyrights, trade secrets or any other proprietary rights brought against Purchaser or any division, affiliate, subsidiary, customer, successor, assign or privy of Purchaser, by reason of the use or sale of goods or services purchased by this Purchase Order, including, in the case of stock to be converted, the converting of such stock and the vending of the converted stock, and Seller agrees to indemnify and hold harmless Purchaser and any such parent, division, affiliate, subsidiary, customer, successor, assign or privy against any judgements, awards and costs in such suits or proceedings, including reasonable attorneys fees. In the event of any such suits or proceedings, Purchaser reserves the right to be represented by legal counsel of its own selection, but the reasonable cost of such representation shall nevertheless be the responsibility of Seller.
13. Indemnification and Insurance. If this Purchase Order requires the performance of work or services on property of Purchaser, Seller agrees to protect, defend, indemnify and hold harmless Purchaser and its parent, subsidiaries, affiliates, officers, employees and agents from and against all claims, liabilities, losses or expenses which may be made against or incurred by any of them by reason of any personal injury or death to any person or persons, including but not limited to employees of Purchaser or Seller, and for or on account of damage to the property of any person, firm or corporation, including but not limited to property of Purchaser or Seller, however caused, in connection with or in any manner arising out of or in the course of the work performed hereunder by the Seller, its agents, employees, servants, workmen or subcontractors, including, without limiting the generality of the foregoing and to the extend not expressly prohibited by law, all claims, liabilities, losses or expenses arising or alleged to arise in whole or in part from the negligence or breach of duty, statutory or otherwise, or any act or omission of Purchaser or any of Purchaser's officers, employees, agents or other representatives. Seller shall reimburse Purchaser or its insurance carriers, if any, for any legal or other expenses, including attorneys fees reasonably incurred by Purchaser in connection with investigating or defending any liability, cost, claim, demand, loss or action referred to in this Paragraph 13. With respect to any and all claims against Purchaser, its parent or any of its officers, employees or agents by any employee or seller, and of its subcontractors, or anyone directly or indirectly employed by any of them or anyone for whose acts they may be liable, the indemnification obligations of Seller under this Paragraph 13 shall not be limited in any way by any limitation on the amount or kind of damages, compensation or benefits payable by or for Seller or any subcontractor under worker's or workmen's compensation acts, disability benefit acts or other employee benefit acts. Seller agrees to furnish to Purchaser evidence, in a form and in amounts satisfactory to Purchaser, of Seller's insurance coverage, including workmen's compensation and employers liability, automobile liability, public liability, property damage and contractual liability insurance. Seller agrees, for itself and its subcontractors and materialmen and all other persons otherwise entitled to a mechanics lien or other lien or claim, not to make, file or maintain a mechanics lien or other lien or claim of any kind or character whatsoever against any building, structure, land or other real estate of Purchaser or any parent, subsidiary or affiliate of Purchaser. Seller shall indemnify Purchaser and save and hold Purchaser harmless from and against any and all of such liens or claims that may be filed by Seller or its subcontractors and materialmen. Seller shall notify all subcontractors and materialmen it retains or engages in connection with work for Purchaser of the provisions of this Paragraph 13 prior to the commencement of any work or the supplying of any materials by such subcontractors or materialmen.
14. Fair Labor Standards Act. Seller agrees, in connection with the production of the goods and/or the performance of the services specified herein, to comply with the requirements of the Fair Labor Standards Act of 1938, as amended. All invoices must carry the following certificate in order to be passed for payment.
Seller represents that with respect to the production of the articles and/or the performance of the services covered by this invoice, it has fully complied with the Fair Labor Standards Act of 1938, as amended.
15. Equal Opportunity in Employment. Seller warrants and represents that the goods and/or services to be furnished hereunder were or will be produced or performed in compliance with
(1) Executive Order 11246, as amended relating, among other things, to equal opportunity in employment, (2) Section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974, (3) Section 503 of the Rehabilitation Act of 1973, (4) the Civil Rights Act of 1964, as amended and (5) all other applicable laws, regulations or requirements of any governmental authority relating to equal opportunity in employment or discrimination in employment. All applicable requirements of all such laws, orders, rules and regulations are hereby incorporated by reference into this Purchase Order.
16. E.P.A. Toxic Substances Control Act. eller warrants and represents that each and every chemical substance constituting, contained in or used in the goods sold or otherwise transferred to Purchaser or services performed pursuant to this Purchase Order is on the list of chemical substances compiled and published by the Administrator of the Environmental Protection Administration pursuant to the Toxic Substances Control Act (PL-94-469).
17. Safety and Health Requirements. Seller warrants and represents that all goods and services furnished pursuant to this Purchase Order shall comply with the requirements of all state and federal laws and regulations relating to safety and health requirements, including but not limited to the federal OSHA requirements. Seller agrees to indemnify and hold harmless Purchaser from all damages, costs and expenses suffered or incurred by Purchaser, including but not limited to any fines and/or penalties assessed against Purchaser by any governmental agency, as a result of Seller's failure to comply with such state and federal laws and regulations and the standards issued thereunder and for the failure of the goods and services furnished under this Purchase Order to so comply.
18. Compliance with Laws Generally. Seller warrants and represents that the goods or services furnished pursuant to this Purchase Order will not be manufactured, sold, priced or provided in violation of any federal, state or local law from which liability might accrue to Purchaser, and Seller shall indemnify and hold Purchaser harmless for any damages, costs and expenses suffered or incurred by Purchaser as a result of any failure to comply with such laws.
19. Assignment. Seller shall not assign this Purchase Order or any moneys to become due hereunder, and Seller shall not delegate any duties or obligations hereunder or engage or retain any subcontractor to perform such duties or obligations, without the prior written consent of Purchaser, and no assignment of rights or delegation of duties shall relieve Seller of any obligations hereunder.
20. Payment Terms. Payment by Purchaser shall not constitute acceptance of goods or services for which such payment is made.
21. Force Majeure. Purchaser shall not be liable for any delay, inability to accept delivery or other failure to perform or for any loss or damage, which such delay, failure to perform, loss or damage results from any cause beyond Purchaser's reasonable control, including but not limited to fire, flood or other act of God, strike or other labor difficulty or disagreement, accidents at Purchaser's facilities, acts or requirements of government or civil authority, riot, war, embargo or transportation delay or difficulty, in the event of the occurrence of any such event so that Purchaser is unable to accept delivery of all or part of the goods or services to be provided pursuant to this Purchase Order. Purchaser shall have the right to reschedule such delivery upon giving reasonable notice to Seller, or, at Purchaser's option, to cancel all or the remaining part of this Purchase Order. In the event of such rescheduling or cancellation, Purchaser shall not be liable to Seller for any costs or expenses arising therefrom.
22. Risk of Loss. Notwithstanding any other provision in this Purchase Order or in any other document or writing, the risk of loss for goods sold by Seller to Purchaser pursuant to this Purchase Order shall not pass to or be borne by Purchaser until such goods, conforming in all respects to the requirements of this Purchase Order, have been delivered to Purchaser's premises.
23. Property Rights. Any specifications, drawings, designs, manufacturing data, equipment, tools or dies or other information or materials furnished to Seller by Purchaser or paid for by Purchaser in connection with this Purchase Order, and any photographs of the goods sold pursuant to this Purchase Order or of all or part of Purchaser's plant facilities, are and shall remain the property of Purchaser and are disclosed in confidence and upon the condition that they shall not be copied, reproduced, published or used to furnish information or equipment to others or for any purpose other than to perform the Seller's obligations pursuant to this Purchase Order without Purchasers prior written authorization. Any such materials or information furnished to Seller shall be returned to Purchaser in good condition immediately upon request and Seller shall take all reasonable steps necessary to prevent the disclosure of any such materials or information by any of its employees, agents or subcontractors.
24. Purchaser's Remedies and Liability. In addition to any other remedies specified herein or otherwise provided by law, all of which shall be considered to be cumulative. Purchaser shall have the right, at its sole option, to cancel and terminate this Purchase Order and any of Purchaser's obligations relating thereto if Seller breaches any of its obligations hereunder (including but not limited to Seller's obligations to make timely delivery and Seller's warranties) or if Seller is adjudicated a bankrupt, if a petition is filed with respect to Seller under the federal Bankruptcy Act or any other bankruptcy or insolvency law, if Seller makes an assignment for the benefit of creditors, if a receiver of the property of Seller is appointed or if action under any law for the relief of debtors is taken with respect to Seller. In the event of any cancellation or termination by Purchaser for these or any other reasons, all obligations of Seller with respect to the warranties set forth in this Purchase Order and Seller's obligation to indemnify and hold Purchaser or any other person harmless shall survive such termination, in no circumstances will Purchaser be liable to seller for any special, incidental or consequential damages in connection with the goods or services provided pursuant to this Purchase Order or in connection with the parties obligations hereunder and Seller assumes all risk of damage to property or injuries to persons, including death relating thereto.
25. Waiver and Modification. Any waiver by Purchaser of any breach or default by Seller or any of Seller's obligations hereunder and any failure by Purchaser to enforce any rights arising hereunder, shall not be construed as a waiver of any other breach or default by Seller or of Purchaser's right to enforce its rights arising hereunder in any other circumstances. No modification, limitation, waiver or discharge of this Purchase Order or any contract relating thereto or any of the Seller's obligations thereunder shall be binding on Purchaser unless it is contained in a writing signed by Purchaser's duly authorized officer or employee.
26. Applicable Law and Consent to Suit. This Purchase Order and performance hereunder shall be construed in accordance with the Laws of the State of Ohio. In the event of breach or alleged breach of the provisions of this Purchase Order by Seller, or any other dispute relating to this Purchase Order or the goods or services furnished pursuant thereto. Seller hereby consents to suit being filed against it in state or federal court located in that state, and Seller agrees to waive any defense or objection it has or could have respecting jurisdiction or venue with respect to such suit.
27. Notice. Any notice given by either party hereto to the other in connection with this Purchase Order shall be delivered to the other in writing, at the address appearing on this Purchase Order, personally or by prepaid mail.
28. Invalidity and Severability. If any provision or provisions of these Terms and Conditions of Sale are held by a court of competent jurisdiction to conflict with any federal, state or local law or otherwise are held to be invalid or unenforceable, either generally or with respect to any particular facts or circumstances, such provision or provisions shall be deemed to be of no force and effect, either generally or with respect to the applicable particular facts or circumstances, and these Terms and Conditions of Sale shall continue in full force and effect and shall be construed as if such provision or provisions had not been included herein or had not been applicable to the particular facts or circumstances resulting in such holding.