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PURCHASE ORDER TERMS AND CONDITIONS


ACCEPTANCE AND MODIFICATION OF AGREEMENT

    This Purchase Order (this “Order”) becomes a binding contract subject to the terms and conditions hereof, when accepted by acknowledgment of Seller, or by delivery of goods (which throughout this Order shall include, without limitation, raw materials, components, intermediate assemblies, and end products) or services in whole or in part. To be valid, any modification of this Order must be in writing and signed by Buyer’s authorized representative. Any term or condition on Seller’s acknowledgment or other form which is additional to or contrary to the terms contained herein is specifically rejected. Buyer reserves the right to correct typographical or clerical errors. Otherwise, no change in this Order shall be binding unless specifically accepted in writing by both parties.

PRICING

    Seller certifies that the prices set forth in this Order do not exceed those charged to other buyers of the same goods or services in reasonably comparable quantities and delivery requirements in recent sales to such other buyers, including without limitation, competitors of Buyer. In the event of a breach of the foregoing representation, Seller shall reimburse Buyer for excess costs attributable to the breach, including interest thereon at the maximum rate allowed by law. If price is omitted, the goods shall be billed at a price last quoted or paid, or at the prevailing market price, whichever is lower. The price stated includes all charges for packing, hauling, storage, and transportation to point of delivery. The price stated includes all taxes except state or local sales or use tax or similar taxes which Seller is required by law to collect from Buyer. Such taxes, if any, shall be separately stated in Seller’s invoice and paid by Buyer unless an exemption is available. Seller agrees that any price reduction made with respect to the items covered by this Order subsequent to its placement but prior to payment will be applicable to this Order.

IDENTIFICATION

    All invoices, packing lists, packages, shipping notices, instruction manuals, and other written documents affecting this Order shall contain the applicable Order number. Packing lists shall be provided with each shipment. Each part, component, or material quantity furnished shall be identified in a manner acceptable to Buyer, by lot or batch, traceable to the actual manufacturing process. The lot or batch number may be by date or Seller code, but must provide the capability for a lot or batch purge. Consecutive serial numbers are to be used for further identification.

CHANGES

    Seller will accept no changes to the specifications of this Order unless authorized in advance and in writing by Buyer’s Purchasing Department. Buyer may make changes in the drawings and specifications on any item at any time. If such changes result in delay or additional expense to Supplier, an equitable adjustment of price and delivery schedules will be made.

DELIVERY

    If any shipment or delivery is made which is not in all respects in accord with this Order (including time of shipment or delivery), Buyer reserves the right to reject such delivery and, if Buyer so elects, Buyer may treat this Order as repudiated by Seller and cancel any outstanding deliveries hereunder, without prejudice to Buyer’s rights to claim damages or to enforce any other remedy provided by law. All expenses of transportation and storage, if any, resulting therefrom, shall be for Seller’s account. Seller shall notify Buyer immediately upon realizing that Seller will be unable to meet Buyer’s deadline. Acceptance by Buyer of late delivery of either the whole or part of the Order shall not constitute a waiver of its claim for any damages resulting from the late delivery. If Seller’s deliveries are so far behind schedule that Buyer finds it necessary to call upon Seller for premium transportation, Seller shall be liable for the difference between specified and premium transportation. Seller shall perform overtime work and establish extra shifts, without additional cost to Buyer, if necessary to maintain delivery dates. Seller shall ship goods in accordance with Buyer’s instructions. Unless otherwise instructed, goods shall be shipped F.O.B. Point of Delivery and Seller assumes the risk of loss in transit.

INSPECTION

    (a) All goods and services shall be subject to inspection and test by Buyer and its Customers (which term throughout this clause shall include, without limitation, government surveillance and regulatory agencies) to the extent practicable at all times and places including the period of manufacture and in any event prior to final acceptance by the Buyer and its Customers.
    (b) If any inspection or test is made on the premises of Seller or its supplier, Seller, without additional charge, shall provide all reasonable facilities and assistance for the safety and convenience of the inspectors in the performance of their duties. All inspections and tests on the premises of Seller or its supplier shall be performed in such a manner as not to unduly delay the delivery of goods and services to Buyer.
    (c) Final acceptance or rejection of the goods and services shall be made as promptly as practical after delivery, except as otherwise provided in this Order, but failure to inspect and accept or reject goods and services, or failure to detect defects by inspection, shall neither relieve Seller from responsibility for such goods and services as are not in accordance with the Order requirements nor impose liabilities on Buyer therefor.
    (d) Seller shall provide and maintain an inspection and process control system acceptable to Buyer and its Customer covering the goods and services hereunder. Records of all inspection work by Seller shall be kept complete and available to Buyer and its Customers during the performance of this Order and for such longer periods as may be specified in this Order.
    (e) All costs incurred and damages sustained by Buyer as a result of rejections made under the provisions hereof shall be for Seller’s account and Buyer may, in Buyer’s sole discretion, retain or return such goods and services at Seller’s expense. Goods and services are subject to Buyer’s inspection notwithstanding prior payment to obtain discount.

WARRANTY

    Seller expressly warrants that all goods and services furnished under this agreement conform to all Buyer specifications and appropriate standards, will be new unless otherwise specified, and will be free from defects in material or workmanship for a minimum period of one year from the date of acceptance by Buyer. Seller warrants that all such goods or services will conform to any statements made on the containers or labels or advertisements for such goods or services, and that all goods will be adequately contained, packaged, marked and labeled. Seller warrants that all goods or services furnished hereunder will be merchantable, and will be safe and appropriate for the purpose for which goods or services of that kind are normally used. If Seller knows or has reason to know the particular purpose for which Buyer intends to use the goods or services, Seller warrants that such goods or services will be fit for such particular purpose. Seller warrants that goods or services furnished will conform in all respects to samples. Inspection, test, acceptance, payment, or use of the goods or services furnished hereunder shall not affect the Seller’s obligation under this warranty, and such warranties shall survive inspection, test, acceptance, payment, and use. Seller’s warranty shall run to Buyer, its successors, assigns and Customers, and users of products sold by Buyer. Seller agrees to replace or correct defects of any goods or services not conforming to the foregoing warranty promptly, without expense to Buyer, when notified of such nonconformity by the Buyer. In the event of failure of Seller to correct defects in or replace nonconforming goods or services promptly, Buyer, after three business days notice to Seller, may make such corrections or replace such goods and services and charge Seller for the cost incurred by Buyer in doing so.

CONFIDENTIALITY, PATENTS, AND OTHER INTELLECTUAL PROPERTY

    The ideas, information and designs in or shown upon, and the drawings, specifications, photographs and other engineering and manufacturing information supplied by the Buyer shall remain Buyer’s property, shall be retained in confidence by Seller, and not disclosed to any other person or entity, and shall not be used or incorporated into any good or service later provided by Seller to anyone other than Buyer. Any unpatented knowledge or information concerning Seller’s process, present or contemplated Products or their use which Seller may disclose to employees of Buyer in connection with the ordering, acquisition, and use by Buyer of the goods or services covered by this Order shall not, unless specifically agreed in writing, be deemed to be confidential or proprietary. Such information shall have been disclosed as part of the consideration for this Order and Seller agrees not to assert any claim (other than a claim for patent infringement) against the Buyer by reason of any use or alleged use to which any such information or knowledge may be put by Buyer.
    Seller warrants the goods or services covered by this Order do not infringe upon any third party’s intellectual property rights. If by reason of any of these acts a suit is brought or threatened for infringement of any patent on the goods or services, their manufacture or use, or for infringement of any trademark, trade name or copyright, Seller at its own expense shall defend such suit and indemnify Buyer and its Customers against all loss and expense in connection with such suit or threatened suit, including awards of damages, costs, and attorney’s fees.

INDEMNITY

    Seller, its affiliates, successors and assigns shall forever protect, indemnify and save harmless Buyer, its subsidiaries and affiliated companies, their successors, assigns, Customers and users of their Products, the prime contractor and the government, if applicable, against all damages claims, suits, demands or losses of any kind arising out of or alleged to have arisen out of or in connection with Seller’s performance or lack of performance of this contract. Seller will immediately notify Buyer of any such damage, claim, suit, demand, or loss, and, upon request of Buyer, shall defend the same at Seller’s expense as to all costs, fees and damages. The foregoing indemnification shall apply whether the death, injury or property damage is caused by the sole or concurrent negligence of Seller or otherwise. In no case shall Buyer be responsible to Seller for any consequential or incidental damages, including without limitation lost profits.

WORK ON BUYER’S OR ITS CUSTOMER’S PREMISES

    If Seller’s work under the Order involves operations by Seller on the premises of Buyer or one of its Customers, Seller shall take all necessary precautions to prevent the occurrence of any injury to person or property during the progress of such work and shall indemnify Buyer against all loss which may result in any way from any act or omission of Seller, its agents, employees or subcontractors. Seller shall maintain such public liability and property damage insurance and employee’s liability and compensation insurance as will protect Buyer from said risks and from any claims under any applicable worker’s compensation and occupational disease acts, and upon request by Buyer shall provide an insurer’s certificate of same to Buyer.

TERMINATION AT BUYER’S OPTION

    For any reason, or for no reason at all, Buyer may terminate the performance of the work under this Order in whole at any time, or from time to time, in whole or in part, immediately upon written notice to Seller. Upon receipt of such notice, Seller shall, unless the notice directs otherwise, immediately discontinue all work and the placing of all orders for materials, facilities, and supplies in connection with the performance of this Order and shall proceed to cancel promptly all existing orders and terminate all subcontracts insofar as such orders or subcontracts are chargeable to this Order. Seller will promptly advise Buyer of the quantities of applicable work and materials on hand or purchased specifically for this Order prior to termination, and of the most favorable disposition that Seller can make thereof. Seller will comply with Buyer’s instructions regarding disposition of such work and material. Within 30 days after receipt of such notice of termination, Seller will submit all its claims pursuant thereto. Buyer will have the right to check such claims at any reasonable time by inspecting and auditing the records, facilities, work or materials of Seller relating to this Order. Buyer will make no payments for finished work, work in process, or raw materials fabricated or procured by Seller in excess of Buyer’s written releases. Payment made under this clause will constitute Buyer’s only liability in the event this Order is terminated as provided herein. Seller’s acceptance of such payment will constitute an acknowledgment that Buyer has fully discharged such liability. Upon termination of work under this Order, full and complete settlement of all claims of Seller with respect to the terminated work shall be made as follows: (i) as compensation to Seller for such termination, unless such termination is for the default of Seller, Buyer shall pay Seller the percentage of the total Order price corresponding to the proportion of the amount of work completed on the date of termination to the total work to be done as Seller’s full compensation for the work completed under this Order, and (ii) upon Buyer’s payment to Seller in accordance with this paragraph, title to (a) all equipment, materials, work-in-progress, finished goods, plans, drawings, specifications, information, special tooling, and (b) any other things for which Buyer has paid, shall vest in Buyer. Nothing contained in this paragraph shall be construed to limit or affect any remedies which Buyer may have as a result of a default by Seller.

CANCELLATION FOR DEFAULT

    Buyer reserves the right, by written notice of default, to cancel this Order, without liability to Buyer, in the event of the happening of any of the following events: insolvency of Seller, the filing of a voluntary petition in bankruptcy by Seller, the filing of an involuntary petition to have Seller declared bankrupt, the appointment of a receiver or trustee for Seller, or the execution by Seller of an assignment for the benefit of creditors. Should any such event occur, Buyer reserves the right, without any liability to Buyer, upon giving Seller written notice, to (i) cancel this Order in whole or in part, by written notice to Seller and Seller shall be liable to Buyer for all damages, losses and liability incurred by Buyer directly or indirectly resulting from Seller’s breach, and (ii) obtain the goods or services ordered herein from another source, with any excess cost resulting therefrom chargeable to Seller. The remedies herein provided shall be cumulative and in addition to any other remedies provided at law or in equity.

SET-OFF

    Buyer shall be entitled at all times to set-off any amount owing at any time from Seller to Buyer or any of its affiliated companies against any amount payable at any time by Buyer to Seller in connection with this Order.

COMPLIANCE WITH LAWS

    In accepting this Order, Seller shall be deemed to represent that the goods and services to be furnished hereunder were or will be produced in compliance with the requirements of the Fair Labor Standards Act of 1938 as amended and, unless otherwise agreed in writing, Seller shall insert a certificate on all invoices submitted in connection with this Order stating that the goods and services covered by the invoice were produced in compliance with the requirements of the Fair Labor Standards Act of 1938, as amended, including Section 12(a). Seller shall also be deemed to represent that Seller will comply with other requirements of E.O. 11246 and E.O. 11375. In accepting this Order, Seller agrees that the goods and services to be provided by Seller pursuant to this Order shall comply in all respects with the Occupational Safety and Health Act of 1970 and the regulations and standards promulgated thereunder, and Seller agrees to so certify on all its invoices. Seller shall comply with all other applicable state, federal and local laws, rules and regulations, and upon request by Buyer, supply affidavits of compliance with same. Buyer is an equal opportunity employer and federal contractor or subcontractor. Consequently, in accepting this Order Buyer and Seller agree that, as applicable, they will abide by the requirements of 41 CFR 60-1.4(a), 41 CFR 60-300.5(a) and 41 CFR 60-741.5(a) and that these laws are incorporated herein by reference. These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. These regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability. Customer and Seller also agree that, as applicable, they will abide by the requirements of Executive Order 13496 (29 CFR Part 471, Appendix A to Subpart A), relating to the notice of employee rights under federal labor laws.

WAIVERS

    Any waiver of strict compliance with any term or terms of this Order shall not be a waiver of Buyer’s right to thereafter insist upon strict compliance with such term or terms.

ASSIGNMENT

    This Order is issued to Seller in reliance upon Seller’s performance of the duties imposed and Seller agrees not to assign this Order or to delegate the performance of its duties without the consent in writing of the Buyer. Any such assignment or delegation attempted without the previous written consent of Buyer shall effect, at the option of Buyer, a cancellation of all of Buyer’s obligations hereunder. Buyer may assign this Order without Seller’s consent.

GOVERNING LAW

    This Order and the relationship between the parties shall be governed by and interpreted in accordance with the laws of the State of Ohio. All disputes and differences of any kind, arising from this Order, including the existence or continued existence of this contract shall be brought in Lake County Court of Common Pleas or in the United States District Court for the Northern District of Ohio, and Seller and Buyer agree to consent to venue therein and the jurisdiction thereof.

INTEGRATION

    This Order (including any Buyer specifications or other Buyer documents referred to herein) constitutes the entire contract and understanding between Buyer and Seller concerning the subject matter hereof and any representation, promise of dealing or trade usage not contained herein will not be binding on either party.


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