THIS PURCHASE ORDER IS AN ENFORCEABLE CONTRACT BETWEEN BUYER AND SELLER ON THE TERMS AND CONDITIONS SET FORTH HEREIN, AND ACCEPTANCE BY SELLER IS SPECIFICALLY LIMITED TO THE TERMS AND CONDITIONS SET FORTH IN THIS PURCHASE ORDER.
THE TERMS AND CONDITIONS SET FORTH IN THIS PURCHASE ORDER ARE AN ESSENTIAL PART OF THE CONTRACT BETWEEN BUYER AND SELLER AND SHALL CONTROL OVER ANY CONFLICTING OR INCONSISTENT TERMS CONTAINED IN ANY QUOTATION, PURCHASE ORDER, ACKNOWLEDGMENT, INVOICE OR OTHER DOCUMENT. THESE TERMS AND CONDITIONS MAY NOT BE ALTERED, SUPPLEMENTED, OR AMENDED BY THE USE OF ANY OTHER DOCUMENT(S). ANY ATTEMPT TO ALTER, SUPPLEMENT, OR AMEND THIS DOCUMENT TO ENTER AN ORDER FOR PRODUCT(S) WHICH IS SUBJECT TO ADDITIONAL OR ALTERED TERMS AND CONDITIONS WILL BE NULL AND VOID, UNLESS OTHERWISE AGREED TO IN A WRITTEN AGREEMENT SIGNED BY BOTH BUYER AND SELLER.
Buyer reserves the right to change, modify or amend this Purchase Order at any time prior to the date of shipment. However, no change, modification or amendment of this Purchase Order shall be binding upon the Buyer unless made by Supplement to this Purchase Order, in writing, signed by the Buyer and duly acknowledged by the Seller. Where no acknowledgment is tendered by the Seller, acceptance by the Seller shall be implied unless Buyer receives from Seller a signed writing to the contrary within ten days from the date of the Purchase Order.
This Contract for Sale is subject to termination by the Buyer without liability upon written notice to the Seller at any time prior to the date of shipment.
This Contract for Sale is subject to cancellation in whole or in part as to any unshipped portion of the contract goods by the Buyer, without liability, upon written notice to the Seller, if Seller fails to make deliveries as specified in the schedules, or for any breach by the Seller of any of the terms or warranties, express or implied, in this Contract.
In the event prices or taxes are higher than specified in this Purchase Order, Seller shall not ship, but shall advise Buyer thereof. By acceptance of this Order, Seller warrants that the prices charged hereunder are not in excess of the Seller’s current selling price to any other purchasers of the same or substantially similar items (taking into account quantities so sold), and agrees that in the event it is determined that the prices charged herein are in excess of such prices, such excess will be refunded to Buyer. Seller also agrees that any reduction in its selling price of the goods or materials covered by this Purchase Order subsequent to its issuance will be applicable to this Purchase Order.
Buyer accepts no responsibility for goods or materials shipped in excess of the quantities specified in this Purchase Order, and any such excess may at Buyer’s option be returned to Seller at Seller’s expense. In the event Seller is not able to complete the entire order specified herein, no amount thereof shall be shipped without Buyer’s additional consent thereto.
All goods and materials shall be packed in accordance with specifications provided by Buyer, or, if no such specifications are provided, as otherwise suitably packed, in order to protect the same fully during transportation and to secure the lowest transportation costs. All materials shall be forwarded in accordance with Buyer’s instructions, or in the absence of such instructions, by route and method of transportation representing the lowest transportation costs. When usual terms of tariffs do not include insurance, shipments must be forwarded properly insured to their full sales price hereunder. No charge shall be made for packing, insurance, boxing, storage or drayage unless authorized by Buyer in writing. A packing slip bearing a complete record of the shipment, including the number of the order to which it applies, is required with each shipment hereunder. Invoices, bills of lading or express receipts, and packing lists must be mailed within twenty-four hours following shipment. Each invoice must show the shipping route, quantity, prices, number of packages and serial numbers thereof, and the number of Buyer's purchase order to which shipment applies. Payments and discounts shall be calculated from the date of receipt at Buyer's office of the foregoing invoice, bills of lading or express receipts, and packing lists.
Delivery or performance must be made in accordance with the date or dates specified in this Purchase Order. If goods or materials are not delivered, or services performed, on or before the date(s) specified herein, Buyer shall have the option of purchasing elsewhere and charging Seller with any loss resulting therefrom and/or of canceling this order, or any part thereof, and with respect to any part of the order so cancelled, Buyer may, at its option, either return such goods or materials to Seller, at Seller's risk and expense, or charge Seller a reasonable storage charge until Seller removes such materials. Acceptance by the Buyer of any goods or materials covered by this purchase order after the date or dates specified herein shall not result in a waiver of Buyer's right to recover damages caused by late delivery. Unless otherwise specified by Buyer in writing, time is of the essence in completing this order. Buyer may from time to time change delivery dates by means of a written amended Purchase Order prior to the delivery date of the shipment of this order. Seller shall not be liable for delay in delivery, and Buyer shall not be liable for delay in acceptance, due to circumstances outside of such party's control, including, but not limited to, act of God, acts of any civil or military authority, acts (including delay or failure to act) of any governmental authority (de jure or de facto), fires, strikes, lock‑outs, or other industrial disturbances, flood, earthquake, epidemic, war, hostilities or the threat or apprehension thereof, riot, delays in transportation, any interruption to the supply of materials, or goods or information, any accident, breakdown of machinery or the making of emergency or essential repairs thereto, or compliance with the valid order of any governmental or public authority but only to the extent of the duration of such circumstances and provided that party exercises due diligence in promptly notifying the other party hereto of the delay and the causes therefor and takes all reasonable action to remedy the same.
All materials, goods and work shall be subject to Buyer's inspection and approval, and upon discovery by Buyer that the materials, goods or work furnished contain any defect, patent or latent, or that they fail to conform to the warranties herein, Buyer shall have the right, without limitation: (1) to have Seller replace the faulty materials goods or work and be reimbursed by Seller for all out-of-pocket costs in connection with the utilization thereof; (2) to reject the materials, goods and work and recover all freight, storage, handling or other expense incurred by Buyer, and be relieved of any payment for the purchase price therefor, or, if payment has been made, to recover the purchase price so paid; and/or (3) to cancel this order. Materials so returned shall not be replaced without Buyer's written replacement order. Buyer's rights as set forth in this paragraph shall not be construed to limit or affect any other rights which Buyer or any other party may have.
Seller warrants that all materials, goods and work furnished by it pursuant to this Purchase Order shall be free from defects in material and workmanship; shall, if not of Buyer's design, be fit and sufficient for the purpose intended; and shall conform in all respects to the product specifications therefor. Seller further warrants that all materials and goods furnished shall be of good and merchantable quality, free of any lien, charge, encumbrance and interest of any nature of any third party, and that Seller shall have good and marketable title thereto upon provision to Buyer. In addition, Seller warrants that all material and goods furnished hereunder shall be manufactured in strict conformity with all national, federal, state and local laws and ordinances, and all regulations of all governmental authorities as may from time to time be amended. The warranties herein shall run to Buyer, its customers and the user of the final product and shall survive inspection and acceptance by Buyer. Seller agrees to indemnify and save Buyer, its affiliates, their employees and customers, and any and all direct or indirect vendees thereof, harmless with respect to all losses, costs, expenses and damages, including consequential damages and attorney's fees, incurred or asserted as a consequence of any breach of any warranty contained in this Purchase Order.
All processes, drawings, data, reports, plans, documents, business secrets, and information of any kind pertaining to Buyer's business shall be treated and recognized as the sole and exclusive property of Buyer and shall at all times be kept by Seller as secret and confidential; and any inventions, discoveries, and improvements which Seller may make arising out of the performance of services or delivery of goods or materials hereunder and relating in any manner to Buyer's business shall be promptly disclosed by Seller to Buyer, and the rights to any of the foregoing shall belong to and become the property of Buyer and Seller shall never use nor permit the use of the same for Seller's benefit or for the benefit of any other person, firm or corporation. Seller shall not prepare any writings, reports, publications, etc., in any way connected with or arising out of the process, design or any other information which Seller is studying for Seller's use or for release to others, except as specifically required by Buyer without prior written consent of Buyer. Seller may disclose or reveal any such information only to those in its organization who must have access to such information to perform the services specifically required of Seller by Buyer. Seller shall make known to all those in its organization who have access to such information Seller's obligations hereunder and that such information is confidential and is the property of Buyer. All models, drawings, sketches, documents, and other written information furnished to Seller or otherwise obtained by Seller in connection with this order shall be the property of Buyer and shall be deemed a loan to Seller for use solely in the performance of services for Buyer, and shall be returned to Buyer whenever return is requested by Buyer and, in any event, upon completion of Seller's work for Buyer.
All dies, special fixtures, jigs, patterns, plates, molds, or other tools furnished by or paid for, either directly or indirectly, by Buyer, unless expressly stated on this Purchase Order to the contrary: are to be Buyer's property; are to be used only in the performance of orders from Buyer; are to be delivered, together with all copies thereof, to Buyer on demand; are to be maintained in first class operative condition, and repaired or replaced, as may be necessary, by Seller, at its expense; and are to be disposed of only on written instructions from Buyer. Seller also agrees, at its own expense, to insure to their full insurance value against theft, loss or damage by fire or other event all of the foregoing in Seller's custody and belonging to Buyer, or in which Buyer has an interest, and Seller shall, on request, deliver to Buyer a certificate of insurance with respect thereto. Failure to do so shall not be deemed a waiver of Seller's liability to Buyer for the full value of such items in the event of loss or damage for any reason whatsoever.
Seller warrants to Buyer that the sale or use of the goods and materials provided hereunder, either alone or in combination with other materials, will not infringe or contribute to the infringement of any patents, trademarks or copyrights, either in the United States or foreign countries. Seller agrees, upon receipt of notification from Buyer, promptly to assume full responsibility for the defense of any suit or proceedings which may be brought against Buyer or any of its subsidiaries or affiliated companies, or their employees, agents or customers, by reason of the use or sale of any materials, goods or work furnished on this order, which are not of the Buyer's design, for alleged patent, trademark or copyright infringement, or for alleged unfair competition resulting from similarity of design, trademark or appearance of goods; and Seller further agrees to indemnify Buyer, its subsidiaries and affiliated companies, and their employees, agents and customers, against any and all losses, expenses and damages, including consequential damages and attorney's fees, resulting from the bringing of such suit or proceedings and/or from any settlement, decree or judgment therein. Buyer reserves the right, at its election, to control or participate in any such suit or proceeding, and may be represented therein by its own counsel, if it so desires.
Seller warrants that all work contemplated hereunder shall be performed in strict conformity with all federal, state and local laws and ordinances, and all regulations of all governmental authorities. Seller agrees, upon request, to furnish Buyer a certificate of compliance with any or all such laws, and of the provisions herein, in such form as Buyer may require. Without limiting the generality of the foregoing, where Seller performs services on Buyer's premises, Seller agrees to furnish to Buyer satisfactory evidence of compliance with all laws and regulations, including specifically, without limitation, all taxes on payroll or contributions on account of social security, unemployment insurance and federal or state workmen's compensation. Seller agrees that, if in the performance of this purchase order, Seller or any of its employees, agents or subcontractors is required to enter upon premises other than premises owned or occupied by such person, Seller shall ensure that public liability and property damage insurance in amounts satisfactory to Buyer, naming Buyer as an additional insured, be maintained to cover any liability in connection therewith. Seller agrees, upon receipt of notification from Buyer, promptly to assume full responsibility for the defense of any suit or proceedings which may be brought against Buyer or any of its subsidiaries or affiliated companies, or their employees, agents or customers by reason of any alleged violation of any federal, state, or local law, ordinance, or regulation of any governmental authority; and Seller further agrees to indemnify Buyer, its subsidiaries and affiliated companies, and their employees, agents and customers, against any and all losses, fines, expenses and damages, including consequential damages and attorney's fees, resulting from the bringing of such suit or proceedings and/or from any settlement, decree or judgment therein. Buyer reserves the right, at its election, to control or participate in any such suit or proceeding, and may be represented therein by its own counsel, if it so desires.
Seller agrees to indemnify and hold Buyer, its affiliates, their employees and customers, and any and all direct or indirect vendees thereof, harmless with respect to all losses, costs, fines, expenses and damages, including consequential damages and attorney's fees, incurred or asserted as a consequence of any breach in any warranty contained in this purchase order.
ALL INVOICES MUST CARRY THE FOLLOWING CERTIFICATION: “WE HEREBY CERTIFY THAT THE GOODS WERE PRODUCED IN COMPLIANCE WITH THE FAIR LABOR STANDARDS ACT OF 1938 AS AMENDED.”
In the event that Buyer waives compliance with any term or condition of this Contract by the Seller, it is expressly agreed between the parties that such waiver shall not constitute a continued waiver of the term or condition, nor does such waiver by the Buyer constitute a waiver of any other terms or conditions contained herein. Any such waiver by the Buyer must be explicit, in writing, and signed by the Buyer.
If this Contract involves repeated occasions for performance by the Seller and if said performance is in contradiction to the terms and conditions of this Contract, failure to object by the Buyer shall not constitute an acceptance or acquiescence of the course of performance, nor waiver of the terms and conditions violated, unless specifically so stated in writing, signed by the Buyer.
Upon: (i) the liquidation or dissolution of Seller; (ii) the filing by Seller of a petition in bankruptcy or for reorganization, or for adoption of any arrangement under any the bankruptcy laws at any time in effect in any jurisdiction, or any admission seeking the relief therein provided; (iii) the making by Seller of an assignment of all or a substantial portion of its assets for the benefit of its creditors; (iv) the consent by Seller to the appointment of a receiver or trustee for all or a substantial part of its property or to the filing of a petition against it under said bankruptcy laws; or (v) the adjudication of Seller as bankrupt, Buyer may terminate this order without liability, except for deliveries previously made or services theretofore performed, or for goods covered by this order then completed and subsequently delivered in accordance with the terms of this order. Buyer may further at any time cancel this order for any other reason with respect to goods and materials not theretofore delivered and services not theretofore performed, and Buyer shall not be liable to Seller in such event for loss of anticipatory profits.
This order shall not be assigned in whole or in part, nor any part hereof subcontracted, without Buyer's prior written consent, and all terms hereof shall be binding upon, and accrue to the benefit of the successors and permitted assigns of the parties hereto. Seller shall take all steps required to ensure that its employees, agents and permitted subcontractors comply with all provisions hereof as if the Seller.
The terms and conditions set forth herein shall constitute the entire agreement between Buyer and Seller regarding its subject matter and supersedes all prior representations or understandings relating thereto. It may not be modified orally except in a writing signed by both parties. This contract shall be interpreted in accordance with the laws of New Jersey, without regard to its conflicts of law rules. Buyer and Seller agree to submit all disputes arising between them to a state or federal court located in New Jersey, and the parties consent to the jurisdiction of the New Jersey courts.