Terms and Conditions of Purchase
1. ACCEPTANCE - THIS PURCHASE ORDER IS AN OFFER TO BUY AND NOT AN ACCEPTANCE OF ANY OFFER TO SELL. THIS PURCHASE ORDER MUST BE ACCEPTED BY SELLER BY PROPER EXECUTION OF THE ACKNOWLEDGMENT COPY FORWARDED HEREWITH WHICH MUST BE RETURNED TO BUYER WITHIN TEN (10) DAYS AFTER THE DATE OF ORDER. EXISTENCE OF ANY CONTRACT BASED UPON THIS PURCHASE ORDER IS EXPRESSLY MADE CONDITIONAL UPON SELLER'S ASSENT TO THE TERMS CONTAINED HEREIN. IN THE EVENT THAT SELLER'S ACCEPTANCE STATES TERMS ADDITIONAL TO OR DIFFERENT FROM THOSE SET FORTH HEREIN, THIS PURCHASE ORDER SHALL BE DEEMED A NOTICEE OF OBJECTION TO SUCH ADDITIONAL OR DIFFERENT TERMS AND A REJECTION THEREOF.
2. INSPECTION-GENERAL - All goods or services furnished under this order shall be received subject to Buyer’s inspection and rejection at Buyer’s plant or other destination as specified elsewhere in this purchase order Risk of loss or damage to the goods remains upon Seller until goods have been inspected and accepted by Buyer at such location. If such goods or services or parts thereof are delivered in accordance with the delivery schedule specified elsewhere in this purchase order or are defective in material or workmanship or otherwise fail to conform to Buyer’s instructions and drawings, then Buyer shall, in addition to any other rights it may have, have the right to reject and return such goods or services at Seller’s risk and expense, and no replacement or substitution shall be made without Buyers authorization. Payment by Buyer does not constitute acceptance of waiver of any claim. Acceptance of any or all goods or services covered by this purchase order shall not discharge Seller from liability tor breach of any warranties specified herein or implied by law or usage of the trade.
3. CANCELLATION - Buyer may at any time, upon written or telegraphic notice to Seller, or upon verbal notice to Seller confirmed m writing, terminate this order in whole or in part for the sole convenience of Buyer, in which event Seller shall be entitled to reasonable termination charges consisting of a percentage of the order price reflecting the percentage of the work performed prior to the termination plus actual direct cost resulting from termination. Buyer shall also nave the right, upon written or telegraphic notice to Seller, or upon verbal notice to Seller confirmed in writing, to terminate this order in whole or in part n Seller breaches any of the provisions of this order, in which event Seller will be liable to Buyer for any and all damages sustained by Buyer by reason of such breach
4. FORCE MAJEURE - Failure of Buyer to take delivery of goods or accept performance or services hereunder, or portions thereof. When due if occasioned by Act of God or public enemy, fire, explosion, perils of the sea. Flood, drought, war, riot, sabotage, accident, embargo, government priority, requisition or allocation, or any circumstance of like character beyond the reasonable control of Buyer. or by interruption of or delay in transportation, shortages, or inability to obtain, raw materials, supplies, equipment, fuel, power, labor or other operational necessities, labor trouble, partial or complete suspension of Buyer’s operations, compliance with any order or request of any governmental officer, department, agency or committee, shall not subject Buyer to any liability to Seller. In this connection, Buyer shell not be required to resolve labor disputes, or disputes with suppliers of raw materials, supplies, equipment, fuel, or power, but may in accordance with its best interest, do so. At Buyer's option, the period specified for delivery of goods or performance of services hereunder shall be extended by the period of delay occasioned by such circumstance, and deliveries or services omitted shall be made or performed during such extension or the total ordered hereunder shall be reduced by the deliveries or services or portions so omitted.
5. CHANGES - Buyer shall have the right to make changes in the terms of this purchase order, including but not limited to, (its specifications and drawings as to goods or services to be furnished by this purchase order, (b) the method of shipping and packing and (c) the time end place of delivery. Any difference in price of goods or performance of services as a result of such changes shall be equitably adjusted and the purchase order modified in writing accordingly, any claim by Seller for adjustment under this Paragraph 5 shall be deemed waived unless inserted in writing within ten (10) days from receipt by Seller of the change.
6. PATENTS - Goods or "services furnished hereunder, and 1he sale or use hereof, will not infringe any valid U.S. patents or trademarks. Seller will at Seller's expense defend any suit instituted against Buyer or Buyer's customers, charging infringement of any U.S. patents or trademarks by virtue of possession use or sale of any goods or services furnished hereunder. Seller will indemnify Buyer for all expenses, settlements or recoveries arising from any such suit. II the use of any goods or services furnished hereunder is enjoined because of patent infringement, Seller. within a reasonable time, shall, at Seller's expense, either procure for Buyer the right to continue using such goods or services, or replace such goods or services with non-infringing goods or services so that they become non-infringing or remove such goods or services and refund to Buyer any sum paid therefor including transportation and installation charges.
7. COMPLIANCE WITH LAWS - Seller guarantees that it will comply with the requirements of all applicable Federal, state and local laws and regulations, including the Fair Labor Standards Act of1938 or any amendments thereto.
8. EQUAL OPPORTUNITY CLAUSE - Seller will not discriminate against any employee or applicant for employment because of sex, race, creed, color, religion or national origin, and Seller will take affirmative action to ensure that it is in compliance with the foregoing requirements. When the materials, articles or services covered hereby are purchased or procured for use for, or in the performance of contract or contracts with the United States of America (hereinafter called "Government contract") or a subcontract under a Government contract, the applicable provisions of Government Procurement Regulations as in effect at the date of this purchase order, and the applicable provisions of the following Executive Orders, as amended, including implementing rules and regulations shall apply.
a. Executive Order 11246, relating to equal opportunity in employment under government contracts.
b. Section 2012 of Title 38 of the United States Code, relating to affirmative action obligations of government contractors and subcontractors for disabled veterans of the Vietnam era.
c. Section 503 of the Rehabilitation Act of 1973, relating to affirmative action obligations of government contractor and subcontractors for handicapped workers
d. Executive order 11625 relating to utilization of minority business enterprises in the performance of government contracts.
e. Executive Order 12138, relating to utilization of women-owned businesses in the performance of government contracts.
f. Section 211 of Public Law 95-507. Relating to utilization of small business concerns and small disadvantaged business concerns in the performance of government contracts.
9. WARRANTIES - Seller warrants its good life to all goods covered hereby. Seller warrants that all goods and services furnished hereunder shall be (a) of the quality specified. (b) in conformity with the specifications, drawings, samples or other descriptions furnished by Buyer, (c) fit for the purpose intended by Buyer, (d) merchantable, (e) of good material and workmanship, (f) free from defects and (g) in conformity With any other warranties provided by law, including warranties implied from usage or trade. These warranties shall run to Buyer, its successors, assigns and customers and the users of its goods and services.
10. REMEDIES - Seller agrees to replace or correct defects of any goods or services not conforming to the warranties in Paragraph 9 above promptly, with expense to Buyer, when notified of such nonconformity by Buyer. In the event of failure by Seller to correct defects in or replace nonconforming goods or services promptly, Buyer, after reasonable notice to Seller may make such corrections or replace such goods and services and charge Seller for the cost incurred by the Buyer thereby.
Seller shall be liable for any loss or expense incurred by Buyer, including any incidental and consequential damages incurred by Buyer, arising from (a) Seller breach of warranty or breach of any other provisions of this contract and/or (b) Seller's tortious breach including not limited to Sellers negligence or liability without fault, in connection with Seller's sale of the goods and services covered by this purchase order, or any amendment thereof.
11. INDEMNITY - Buyer shall be indemnified by Seller for any loss, expense, recovery, or settlement, including counsel fees and costs of defense arising out of any demand, claim or suit ( regardless of the merits of such demand , claim, or suit) which may be asserted or brought against Buyer as a result of injury to persons or property, including damages for personal injury or death end or consequential damages, allegedly arising out of or connected With materials or services sold to Buyer pursuant to this purchase order or any amendment thereof.
12. INSURANCE - If this order involves the performance of labor and/or installation for Buyer on Buyer’s premises, the Seller agrees to indemnify and protect Buyer against all liabilities, claims or demands for injuries or damages to any person or property arising as a result of such work. Seller further agrees to carry and furnish, when required, certificates from its insurance carriers showing that it currently carries insurance in the following minimum limits (unless higher amounts are specified):
a. Worker's Compensation - statutory limits for applicable state.
b. General Public Liability- for each accident $300,000 for any one person, $500,000 two or more and $100,000 for property damage.
c. Automobile Liability Insurance - same limits as above to cover all owned, operated or rented automotive equipment used on or about Buyer’s premises.
13. CONFIDENTIALITY - The specifications, drawings, designs, manufacturing data and any other information transmitted to Seller by Buyer in connection with the performance of this purchase order are the property of Buyer, and are disclosed in confidence upon the condition that they are not to be reproduced or copied or used for furnishing information or equipment to others or for any other purpose detrimental the interests of Buyer. Seller may not, without first obtaining Buyer written consent, disseminate the fact that Seller has furnished or has contracted to furnish the items covered hereby, except as is necessary for performance of this order, nor shall Seller disclose any of the details connected with this order to third parties.
14. PRICE WARRANTY· Seller warrants that the prices for goods and services sold to Buyer hereunder are not less favorable than those currently extended to any other customer for the same or similar goods and services in similar quantities. In the event Seller reduces its price tor such goods or services during the term of this order, Seller agrees to reduce the prices hereof correspondingly. Seller warrants that prices shown on this purchase order are (i) f.o.b. Buyer’s plant, unless otherwise shown on the face of this order, and (ii) are complete and include all charges for shipping, packaging, labeling, custom duties, taxes, storage, insurance, boxing and crating. No additional charges of any type shall be added without Buyer's express written consent.
15. CASH DISCOUNTS - Time in connection with any discount offered will be computed from (i) the scheduled delivery date (ii) or the date of actual delivery or (iii) the date an acceptable invoice is received, whichever is later. Payment is deemed to be made for the purpose of earning a discount on the date of mailing Buyer’s check.
16. DELIVERY - Time is of the essence in this contract, and if delivery of goods or rendering of services is not completed by the lime promised, Buyer reserves the right without liability, in addition to its other rights and remedies, to terminate this contract by notice effective when received by Seller, as to stated items not yet shipped or services not yet rendered, and to purchase substitute goods or services elsewhere and charge Seller with any loss incurred.
17. LIMITATION OF BUYER'S LIABILITY - In no event shall Buyer be liable for anticipated profits or for incidental or consequential damages. Buyer’s liability on any claim of any kind for any loss or damage arising out of or in connection with or resulting from this agreement or from the performance or breach thereof shall in no case exceed the price allocable to the goods or service or until thereof which gives rise to the claim. Buyer shall not be liable for penalties of any description. Any action resulting from any breach on the part of Buyer as to the goods or services delivered hereunder must be commenced within one year after the cause of action has accrued.
18. AMENDMENTS · No agreement or understanding to modify this contract shall be binding upon either party unless in writing and signed by both parties. All specifications, drawings and data submitted to Seller with this order are hereby incorporated herein and made a part hereof.
19. ASSIGNMENT -Assignment of this contract, or of any interest herein, or of any money due or to become due under the terms hereof, the prior written consent of Buyer, shall be void.
20. GOVERNING LAW · This document and the purchase of any items hereunder shell be governed by and construed in accordance with the laws of the State of Virginia, U.S.A. Whenever there is a conflict of laws, the laws of the State of Virginia, U.S A. shall prevail.