Purchase Order Terms and Conditions for Buyers
Table of Contents
Acceptance
This Purchase Order, including any other incorporated documents or attachments, including any other documents by reference, constitutes the sole and the entire agreement between the parties. Buyer objects to any other proposed, modified or additional terms by and/or from Seller or anyone acting on the Seller’s behalf unless expressly agreed to in writing by an authorized agent of the Buyer prior to Seller’s acknowledgment or acceptance of this Purchase Order. Any provision contained in any Seller’s proposal, quotation, oral statement, acknowledgment, shipping document, invoice, electronic mail, facsimile or other documents which are inconsistent with or are in addition to the provisions of this Purchase Order shall be of no force or effect.
Seller acknowledges, understands and accepts all terms and
conditions of this Purchase Order if any of the following actions
occur: (a) Seller acknowledges the Purchase Order by any means
including, but not limited to facsimile, electronic transmission, mail,
or verbally; (b) Seller commences performance of product production,
services, retail transaction or ships finished product; (c) Buyer does
not cancel, modify or withdraw this Purchase Order within three (3)
business days; (d) Seller accepts any payment, partial or otherwise,
for goods or for services or for event milestones.
Also, with the existence of a valid original Purchase Order and notwithstanding any action or inaction of or by the Seller, the Purchase Order is deemed acknowledged, understood and accepted by Seller.
Any reference to a Supplier’s/Seller’s quotation number on the Buyer’s Purchase Order documents, regardless of how the number was entered in or placed on said documents, is solely and strictly for the Buyer and its employees use for project tracking purposes and does not alter or impact or negate the herein, prevailing Buyer’s terms and conditions of purchase including, but not limited to commercial, technical and legal requirements and agreements.
In accordance with the above, this Purchase Order is the binding Legal Contract between the parties. All of the Terms and Conditions that follow are likewise agreed to, understood and accepted by the Seller and are specifically incorporated as a binding, legal Seller obligation within this Purchase Order Contract and throughout its execution.
Applicable Law
Seller shall comply with all applicable foreign and domestic
Federal, State and Local laws, statutes and ordinances including, but
in no way limited to rules, regulations and standards as they may apply
to this Purchase Order. Laws and regulations shall include labor,
wages, hours, equal opportunity, health and safety, and other
conditions of employment. In the United States, rules and
regulations include but are not limited to, Equal Employment
Opportunity Executive Order; the Fair Labor Standards Act; Utilization
of Small Business Concerns Owned and Controlled by Socially and
Economically Disadvantaged Individuals; Affirmative action clause of
Disabled Veterans and Veterans of the Vietnam Era and affirmative
action clause of Handicapped Workers; Drug-Free Workplace Act;
Utilization of Women-Owned Small Businesses; Walsh Healy Public
Contracts Act; Occupational Safety and Health Standards of the
Williams-Steiger Occupational Safety and Health Act; all Uniform
Commercial Codes rules and regulations; and the Sarbanes-Oxley
Act – all as amended where applicable.
Seller warrants that it has and will maintain any permits, licenses, registrations or other governmental and/or any other corporate approvals which may be required for its performance under this Purchase Order. Seller shall comply with all such permits and with all applicable foreign and domestic executive orders and federal, state, municipal and local laws, rules, orders, requirements and regulations of the location in which the equipment, materials or Product will be produced or services performed. Seller shall comply with all applicable site rules and policies in satisfaction of the Purchase Order as well as while on the premises of Buyer or Buyer’s customer. Seller shall indemnify and defend Buyer and its customer from all loss, liability, fines, and expenses incurred as a result of Seller’s failure to comply with the requirements as stated herein.
Assignment
Buyer reserves the right to assign this Purchase Order to
affiliates, subsidiaries, or successors without further notice to or
consent of Seller. Seller may not assign this Purchase Order or
any monies due or to become due without prior written or valid
electronic communication approval from the Buyer.
Changes
Buyer may, at any time by written notice to Seller, make changes to
the scope of this Purchase Order. All changes to this Purchase
Order must be in writing and communicated to Seller. Changes
could include but are not limited to drawings, specifications,
quantities, delivery schedules, place of delivery, shipping
instructions, quality requirements, shipping and packaging
instructions, materials, production methods, additional work
requirements, and omission or deletion of work from the Purchase
Order.
Seller shall comply with any submitted change order, and Seller shall proceed with performance of the Purchase Order as modified.
The Purchase Order will be equitably adjusted commercially in writing if any of the Buyer’s changes cause a change in the delivery schedule of goods and/or services, or an increase or decrease in the price to complete the order. Seller must submit any claim, which must include the amount of adjustment in writing within five (5) business days from the date of change order receipt. Unless Seller requests an extension in writing and Buyer grants the extension in writing, failure to submit his claim within the stated time period constitutes a waiver thereof. Other than adjustment as accepted by Buyer, Seller shall have no claim for additional compensation. Where a change causes a decrease in the amount of the Purchase Order, no allowance is made for Seller’s loss of anticipated profits.
Confidentiality
This Purchase Order is confidential between Buyer and Seller. Seller shall not disclose or publish, except in arbitration dispute resolution, any information pertaining to same to any third party without written permission of the Buyer. Information includes but is not limited to any data, designs, drawings, specifications and other information furnished by the Buyer. Disclosure of any of the aforementioned to any third party by Seller is on a need-to-know basis, and is restricted to the execution of this Purchase Order. Seller shall return immediately upon Buyer demand, all data, designs, drawings, specifications and other information including copies Seller made in execution of this Purchase Order. Likewise upon Buyer demand, Seller shall permanently delete all electronic files received from Buyer and certify to this effect.
Consequential Damages
Consequential damages arising from the use of products and/or services provided by Seller shall be outlined and pre-determined by the parties. Any resulting financial awards shall be defined and capped. The parties shall agree on dispute resolution either by mandatory arbitration or to remain open for settlement in a court of law. In the absence of predetermination involving any resultant consequential damages, as applicable, disputes will be settled by the Arbitration Clause in this agreement.
Continuous Improvement
Seller shall strive for continuous improvement by developing initiatives to lower costs, reduce delivery times, increase efficiency, increase reliability, improve quality, etc. Cost benefits resulting from Continuous Improvement initiatives may be shared between the parties.
Delivery
The term “Delivery” means the provision of all materials, equipment,
and/or services complete with all required documentation including
test, code or other regulatory code certificates where
applicable. The place of delivery shall be as specified by
Buyer. Time is of the essence for delivery of all goods and
services. Seller promises delivery and shall ship all goods
or perform all work or complete all services according to Buyer’s
wanted date(s) required at the ‘ship to’ or the ‘service at’
location(s) or according to other, Buyer approved delivery
schedule(s). Unless Seller has received a formal change order or
conditions of Force Majeure arise, terms of delivery are binding and
will not be extended.
Seller shall ensure, by whatever means necessary, that adequate capacity and manpower are available to meet all delivery requirements of Buyer.
Shipments including carrier selection and terms shall be made at the most advantageous rates unless otherwise specified by Buyer. Any excess costs not pre-approved by Buyer shall be at Seller’s expense. Seller shall assume all extra costs of late shipments due to its failure to meet required delivery dates. Buyer may cancel any unfilled portion of the order if Seller cannot meet Buyer’s delivery schedule. Early shipments are at Seller’s risk. Buyer may at its discretion either return early shipments to Seller at Seller’s expense or hold goods and payment until normal maturity after scheduled delivery date. Seller’s inability to fulfill the Purchase Order obligation initially and/or through remedy allows the Buyer to re-source the goods or services as necessary to complete the Purchase Order. If Buyer must re-source the goods and/or services, the original Seller assumes all associated differential costs for this action.
Buyer may reject and/or refuse acceptance of items or services which
are not in accordance with Buyer’s instructions, specifications,
drawings, data or other information supplied by Buyer, or with Seller’s
samples or express or implied warranties. Seller assumes risk for
all rejected goods and/or services. Seller shall not be relieved
from full responsibility for providing goods and/or services in
conformance with the Purchase Order regardless of inspection or the
waiver thereof.
Dispute Resolution/Governing Law
This Purchase Order and the rights of all parties hereunder shall be interpreted and governed in accordance with the laws of the State of the Buyer’s choice. In the absence of a delineated (by Buyer or mutually agreed to by the contracting parties) State and City, the Agreement shall be governed and construed with the laws of the state of the Buyer’s incorporation or if not incorporated the Buyer’s state of residence.
Any term, condition or disputed issue pursuant to this Purchase Order that is not covered by said state law or if state and Federal law conflict, Federal law governs.
For Dispute Resolution, the parties shall first attempt to resolve any/all disputes in good faith. This action is to be executed by the Buying and Selling individuals or personnel that were primary to the formation of the Purchase Order Contract and should be accomplished under a Time is of the Essence commitment and schedule of 10 calendar days or less from first notification.
Should good faith attempts fail, a mandatory mediation effort is required (either party may initiate this process by written or valid electronic request to the other party). The mediation request shall include a description of the unresolved dispute. Mediation shall be represented and accomplished by executive management of both parties and should be accomplished under a Time is of the Essence commitment and schedule of 10 calendar days or less from first notification.
Should good faith efforts and/or mediation not occur or fail to resolve within the prescribed timeframe, all unresolved disputes, controversies, claims or contract breaches shall be exclusively decided and settled by mandatory, final and binding Arbitration facilitated and executed by net-ARB, an Internet Arbitration Company, doing business at www.net-ARB.com. This mandatory, final and binding Arbitration will be governed in accordance with net-ARB’s Arbitration Agreement and rules found at www.net-ARB.com/FAQ.php#Rules. Parties to the Purchase Order Contract, as a result of the Contract and of their prior acceptance of the FocusedBuyer.com Terms of Site Use, have individually, mutually and voluntarily pre-agreed to the following: 1) to submit any non-resolvable dispute to net-ARB for Final and Binding Arbitration; 2) expressly waive their right to a trial by jury in a court of law, their right to litigate the matter in any way, their right to use a statute of limitations defense; 3) forfeit any right to appeal the decision of the arbitrator for any reason; 4) under penalty of perjury agree to truthfully and fully disclose information relative to the case and swear that all of the testimony and other evidence they submit to net-ARB shall be the truth, the whole truth, and nothing but the truth; 5) accept that information disclosed in the arbitration process, case related or otherwise, is not strictly confidential, but will not be voluntarily disclosed by net-ARB for any purpose; 6) accept that either party can initiate the arbitration; 7) submit valid email addresses and accept that all testimony, evidence and decisions are communicated and executed via email; 8) arbitration will be accomplished under a Time is of the Essence commitment and schedule of calendar days set by Arbitrator from first notification; 9) responses not forthcoming within a reasonable amount of time, as determined by the assigned Arbitrator, permits the Arbitrator to close the hearing and issue an Award based on the information submitted to that point; 10) the cost of the arbitration shall initially be shared equally between the parties and later, upon rendering the decision, apportioned by the Arbitrator; 11) abide by and be bound by all other delineated net-ARB rules, regulations, processes and requirements found on their Web Site and in their Terms of Use. 12) the resulting settlement may be enforced with a judgment of a court having jurisdiction being entered upon the Arbitrator’s award; 13) the net-ARB company and arbitration process is completely and totally independent and neutral. It is not connected to, involved with, affiliated with, influenced by or in any way entangled, financially or otherwise with FocusedBuyer LLC, FocusedBuyer.com, PreciousPayment LLC, Precious®Payment, any of their suppliers or subcontractors or any other companies, businesses or entities.Buyer retains and reserves the right to proceed to satisfy the
Purchase Order Contract requirements and shall not be prohibited from
proceeding in court to obtain specific Purchase Order performance or
provisional relief to perform outside of, prior to or during
arbitration.
Seller agrees that “all of Buyer’s incurred costs, including attorney’s fees, to correct and perform Purchase Order requirements” regarding enforcement of this Purchase Order Contract are to the Seller’s account but understands they are ultimately subject to the net-ARB final and binding arbitration process results.
Effect of Invalidity
Should any portion of this Purchase Order become invalid, that
invalidity shall not affect the validity of any other portion, in whole
or in part, of the agreement.
Environmental
Seller shall, as part of its core business processes, support
ongoing audit, safety, preventative and innovative measures to address,
mitigate and improve upon its current environmental impacts and future
environmental challenges. Seller will implement and adhere to a
documented and posted policy addressing environmentally sound
operational practices, technologies and social responsibility.
Seller shall encourage its people, design its product(s) for form, fit
and function and inspire its suppliers and supply chains to be
environmentally alert, diligent and socially responsible. Seller
shall continually monitor its overall business impact on the
environment and as a minimum internally record its results, progress,
and future improvement opportunities.
Export Controls of Technical Data
Seller acknowledges that any technical data provided by Buyer, including but not limited to drawings and specifications, are subject to the export control laws and regulations of the Buyer’s country of choice and agrees to abide by those laws and regulations. Seller agrees that technical data received pursuant to these terms and conditions may be used only for the purpose specified by Buyer and may not be exported by Seller from the defined country or any other country in which it is received without the prior written approval of Buyer. The term “export” includes revealing in the defined country such technical data to non-defined country persons who are not citizens or lawful permanent residents of defined country (for example, green card or visa holders). Seller further agrees upon the request of Buyer, to return or destroy any technical data received from Buyer upon completion of the work specified by Buyer in its Purchase Order and to certify execution.
Force Majeure
Neither party shall be liable for damages resulting from delays
arising out of causes beyond its control and without its fault or
negligence, including but not limited to acts of God, acts of the
Government, fires, floods, strikes, freight embargoes, and unusually
severe weather, nor shall such delay affect the remainder of this
order. Seller will notify Buyer in the quickest most convenient
form within five (5) days after the initiation of any cause or purpose
of delay, in the absence of which Seller completely waives rights for
any excused delay.
Indemnification and Insurance
Seller agrees to indemnify and save harmless the Buyer, its officers, agents and employees from and against any and all claims and liabilities (including expenses) for injury or death of persons or damage to any property which may result, in whole or in part, from any act, execution or omission on the part of the Seller, its agents, employees or representatives, or arising from any Seller furnished materials, products or services, except to the extent that such damage is due solely and directly to the negligence of the Buyer.
Seller shall carry comprehensive general liability insurance,
including contractual, primary comprehensive public liability, property
damage, product liability, Worker’s Compensation, and automobile
coverage, with minimum limits acceptable to the Buyer.
Insurance coverage shall include Buyer as an additional
insured. Seller also agrees to furnish Buyer with a certificate
from Seller’s insurance carrier evidencing said coverage as
requested.
If the agreement covers both the use of materials and labor on Buyer’s premises in fulfilling requirements of the agreement, the following condition applies. Seller agrees to indemnify Buyer against any and all losses, liabilities, damages, fines, penalties and expenses including reasonable attorneys’ fees, rising in any way out of the execution of this agreement, including, without limitation, a claim, action or proceeding for (a) damages to any property or injury to or death of any person, or (b) violation of any federal, state or local law or regulation.
Independent Contractor
Seller’s relationship to Buyer in the performance of the Purchase Order is that of an independent contractor. Neither Seller nor any of the persons furnishing products or materials or performing work or services required by this Purchase Order are deemed employees of Buyer.
Information Validity
Seller verifies that all information including, but not limited to references, resumes, credit worthiness, insurances, licenses, certifications, and any other information provided to Buyer is entirely authentic, complete, valid, and not falsified in any manner whatsoever. Should the Buyer uncover that it is not authentic or is misrepresented in any manner or form the Buyer has the right to terminate the Purchase Order at any time prior to, during and after Contract execution without any commercial impact to the Buyer.
Inspection/Testing/Access to Seller’s Facility and Records
Buyer shall have the right to expedite, inspect, and test any of the goods and/or services covered by this Purchase Order prior to shipment or completion of services. Buyer, its representatives, and its customer when applicable shall have access to Seller’s facilities and equipment and those of its subcontractors for all purposes as delineated. All goods and services are also subject to Buyer’s inspection and approval on arrival or completion and remain conditional for final acceptance by Buyer’s customer where applicable. Where inspection, witness of any test, or other inclusion of any project or Purchase Order event is specified, Seller shall give no less than five (5) business days advance notice to Buyer.
Buyer may reject and/or refuse acceptance of items or services
including but not limited to items which are not in accordance with
Buyer’s instructions, specifications, drawings, data or other
information supplied by Buyer, or with Seller’s samples or express or
implied warranties. Seller assumes risk for all rejected goods
and/or services. Seller shall not be relieved from full
responsibility for providing goods and/or services in conformance with
this Purchase Order regardless of inspection(s) or the waiver thereof.
Limitations of Liability
Seller handles and uses Buyer’s property at his sole risk. Seller’s total liability to Buyer arising out of or in connection with its performance of this Purchase Order whether in contract or in tort (including but not limited to negligence, strict liability, fraud, criminal intent, etc.) shall apply to the full extent permitted by law. The provisions of this Article shall apply to prime contracts, sub-prime contracts, subcontracts, etc.; and, shall apply to the full extent permitted by law, and shall survive termination of this Purchase Order and/or completion of the Work hereunder.
Packaging/Shipping/Handling
Seller shall package and ship all goods in accordance with acceptable industry standards or per the Buyer’s instructions. Seller shall place an itemized list of contents in each package shipped against this Purchase Order. Buyer and Seller mutually agree to assist each other in obtaining any information and/or documents necessary for the prosecution of claims against carriers; however, ultimate burden of action remains with Seller. Seller shall be liable for any difference in freight charges arising from noncompliance with Buyer’s shipping instructions. Claims arising from sub-standard packaging also will be to Seller’s account including but not limited to re-sourcing and all associated incremental costs.
Patents, Trademarks and Copyrights
Seller warrants that the sale or use of goods will not infringe or
contribute to the infringement of any patents, copyrights or trademarks
in either foreign countries or the United States. Seller agrees
to indemnify and save harmless the Buyer, its officers, employees,
agents, representatives or any of its customers buying or using the
goods or receiving the services specified herein from any loss, damage
or injury arising out of a claim or suit at law or equity for actual or
alleged infringement of letters patent, trademarks / service-marks, or
copyrights, by reason of the buying, selling or using the goods
or receiving services supplied under this order, and will assume the
defense of any and all suits and will pay all costs and expenses
incidental thereto.
If the use or sale of such product or provision of such service is enjoined as a result of any proceeding, Seller at no expense to Buyer shall obtain for Buyer and its customers the right to use and sell such product or execute services shall substitute an equivalent product or service acceptable to Buyer and extend this patent indemnity with respect to such equivalent product or service. In the event that Seller is unable to secure such right of use or to secure an equivalent product/service as a substitute, Seller will indemnify Buyer and its customer from any and all losses or damage sustained by reason of such injunction.
Payment/Invoicing
All payments are conditional upon receipt and acceptance of goods and services by Buyer. Buyer reserves the right to negotiate adjustments to invoices for any Purchase Order requirement not met by Seller. All invoices must be itemized and include Purchase Order number in the header information. Packing lists, Bills of Lading, and Express Receipts, or any other required documentation pertaining to invoicing where applicable must be attached to invoice or electronically uploaded with invoice. Failure to provide required documentation and information will delay payment on a day-to-day basis. Cash discount period on invoices, if applicable, begins on date invoice and all other required approved documentation is received by Buyer. Payment will be made in accordance with method, terms and event criteria selected by Buyer and agreed to by Seller as documented in Purchase Order.
Pricing
The Purchase Order price is Firm-Fixed. Seller shall not have the opportunity to increase the price as defined in the Purchase Order for any reason unless agreed to and authorized in writing by the Buyer. If definitive pricing is absent or not clear, Seller shall charge pricing no higher than the last quoted offer that met all of the Buyer’s Purchase Order requirements. In any event, Seller shall not charge a price exceeding its lowest prevailing market price for the goods and/or services.
If the Purchase Order project has an established “Firm-Fixed Base
Price subject to Escalation Factors”, Buyer and Seller shall agree to
all escalation parameters, including but not limited to formulae and
indices, prior to Purchase Order finalization. Seller shall be
responsible for tracking and reporting to Buyer all escalation
parameters, indexes, etc. that apply to the escalation formula and
present the final pricing impact to the Buyer for approval prior to
initiating any invoicing.
If the Purchase Order project is on a “Not to Exceed” basis, Seller shall be responsible for tracking all costs, and will notify Buyer when costs approach 80% of the “Not to Exceed” value. If Seller does not notify Buyer of this milestone, Buyer shall not be responsible for any costs exceeding the original stated “Not to Exceed” value.
If the Purchase Order project is on a “Time and Materials” basis,
Seller shall provide supporting documentation to Buyer prior to
submitting invoicing. Documentation may include, but is not
limited to labor rates, approved time sheets, material invoices,
equipment rental invoices, and/or any other documentation required by
the Buyer.
Product/Technical Support
Seller shall provide an adequate number of instruction manuals and training for its products or services as required by Buyer.
Seller agrees to availability of technical support for its products
and services. Telephone availability shall be available on a 24
hour by 7 days per week basis. Any issue unresolved via telephone
will be resolved via Seller’s on-site technician in the most
expeditious manner.
Property
Notwithstanding the existence of a UCC filing, Buyer shall retain ownership of all material, including but not limited to tools, machines, drawings, dies, designs, patterns, jigs, software or any other data or information furnished to Seller or for which Buyer has paid Seller or which Buyer has paid any other third party. Buyer’s property will be clearly marked as such, kept separate from other material and tools, and used only for completing Buyer’s Purchase Orders. Seller shall insure Buyer’s property with loss payable to Buyer. Except for normal wear and tear Seller assumes liability for all damages or loss. Seller shall repair or replace Buyer’s property as necessary prior to returning same to Buyer. Buyer at no additional cost may at any time remove its property upon demand. At Buyer’s request Seller shall return all property of Buyer upon completion of Purchase Order(s). Seller handles and uses Buyer’s property at his sole risk.
Seller shall not place any mechanics lien against Buyer’s property under any circumstance; however, any disputes relative to any mechanics lien shall be resolved via mandatory, final and binding arbitration. All costs associated with the existence of any mechanics lien placed against Buyer’s property while in Seller’s possession shall be Seller’s responsibility.
Quality
Buyer reserves the right to return to Seller at Seller’s expense any goods found to be defective or nonconforming with Buyer’s requirements and specifications. Buyer shall in good faith notify Seller of any defective or non-conforming product(s) prior to actual return. Buyer reserves the right to have any services not performed in accordance with Purchase Order requirements redone to Buyer’s satisfaction at Seller’s expense.
When required within the scope of this Purchase Order, Seller shall
provide and maintain a quality assurance system and a quality control
process acceptable to Buyer. Buyer reserves the right to perform
quality audits to ensure that the appropriate quality standards are
maintained by Seller. Seller shall correct any deficiencies or
irregularities in accordance with the Audit Report. Seller’s
failure to complete corrections will result in Purchase Order
termination with no further obligation by Buyer to Seller. Seller
shall provide upon Buyer’s request, confirmation of their Quality
System(s) certification.
Upon Buyer request, Seller agrees to submit a Seller Assessment document confirming capabilities including but not limited to technology, professional expertise (for example engineering, sourcing, skilled labor), capacity, shop equipment, quality system information, testing facilities, quality certifications, etc.
Charge-back settlements to Seller for non-conforming goods and/or
services may include but are not limited to cash, trade credit,
marketable expertise, and/or engineering support.
Quantity
Seller shall not deliver any goods or services in quantities greater or less than that specified in this Purchase Order or in released orders unless prior written authorization is received from Buyer. Buyer reserves the right to return any unauthorized goods received at Seller’s expense including all transportation costs. Buyer shall not be responsible for any unauthorized services performed.
The commercially accepted rule of plus/minus ten percent (+/- 10%)
shall apply for high volume / low cost items or where otherwise
applicable with respect to particular goods or products unless
specifically disallowed by the Purchase Order language.
Safety and Health
When required, a Material Safety Data Sheet must be provided with the shipment or materials used in services performed. Seller warrants that all materials and services provided are equal to or surpass all foreign and domestic (federal, state and local) Occupational Safety and Health Standards as applicable.
When performing work on Buyer’s premises, Seller shall follow all Safety Rules and Procedures required by Buyer and by governmental rules and regulations.
Stop Work Order
By written notice to Seller, Buyer may at any time stop any or all
work pertaining to this order. Seller shall take reasonable steps
to mitigate costs during any work stoppage period. At its
discretion, Buyer may either issue a cancellation of the Stop Work
Order allowing work to proceed, and equitably adjust the delivery
schedule and/or price; execute a modification and equitably adjust the
delivery schedule and/or price; or terminate the work according to the
terms of this Purchase Order.
Survival
The provisions under the sections entitled “Applicable Law”, “Inspection/Testing/Access to Seller’s Facility and Records”, “Patents”, “Property, Trademarks and Copyrights”, “Other”, and “Warranty”, apply notwithstanding any other provision(s) of the Purchase Order, and shall survive completion of the Purchase Order.
Taxes
Unless Buyer provides an appropriate Tax Exemption Certificate, any applicable sales or use tax shall be stated separately on Seller’s quote/offer/proposal and invoice.
Termination
If Seller is in default of the terms of this Purchase Order, Buyer may either terminate the entire order or any part thereof by giving notice of default to Seller. Seller may be in default for any of the following: (a) refusal or failure to deliver the goods or services within the time specified; (b) failure to comply with any of the provisions of this order (c) failure to make progress as to jeopardize performance hereunder; or (d) insolvency or subject to proceedings under any law relating to bankruptcy, or the relief of debtors.
Buyer’s liability in termination for default shall be limited to the payment for goods and/or services delivered and accepted by Buyer under this Purchase Order.
Buyer may terminate this Purchase Order at any time for its convenience, in
whole or in part. Should termination for convenience occur,
Buyer’s sole obligations shall be reimbursement to Seller for (a) those
goods and/or services actually shipped and accepted by Buyer up to the
date of termination, and (b) costs incurred by Seller for unfinished
goods, which are specifically manufactured for Buyer and which are not
standard products of the Seller. Reimbursement shall be as of the date
of termination, plus a reasonable profit thereon as agreed between
Buyer and Seller. Buyer shall not be responsible in any event for
loss of anticipated profit nor shall reimbursement exceed the Purchase Order
value.
Title and Risk of Loss
Title and Risk of Loss to goods and services provided under this
Purchase Order passes to Buyer upon delivery at destination or final
acceptance of same whichever occurs later. Seller warrants that
it has a good and marketable title to all goods, products, and/or
equipment provided and materials used in services under this Purchase
Order, and that all goods and materials used in services are free and
clear of all liens and encumbrance. Title and Risk of Loss of any
non-conforming goods or services remains with the Seller until all
corrections are complete and accepted by Buyer.
Seller assumes all risk of loss or damage to any Buyer-provided
property. Seller handles and uses Buyer’s property at his sole
risk.
Virus Warranty
In accordance with the following, any hardware and/or software provided by the Seller shall not contain malicious software or known computer viruses.
Definitions:
Virus: a program code that replicates itself on execution and creates undesirable effects, which are generally applicable to personal computer systems.
Malicious software: a program code that is intentionally added to a program or media to produce undesirable results. Note that an unintentional software error is not a malicious code and will be resolved in accordance with applicable purchase order requirements.
The Seller shall have in effect anti-virus and anti-malicious
software precautions, which include installation and proper use of
anti-virus software as well as workplace awareness to avoid the
conveyance of malicious software and known computer viruses to
Buyer. Prior to delivery, Seller shall check all media produced
and/or used by Seller including but not limited to computer files,
memories, and/or disks in performance of the Purchase Order to detect
and remove any malicious software and/or known computer viruses.
Seller shall use the current signature file and software revision of
its selected anti-virus software. Seller shall provide a
statement verifying that the provided software has been checked.
Seller is required, through its own Purchase Order contracting process,
to obtain a “virus/malicious software free” certification on (a) third
party supplied software in its original, unopened packaging materials,
or (b) media used but generated by operating systems not supported by
anti-virus utilities.
Waiver/Waiver of Lien
No liens shall be placed by Seller against Buyer. All goods and services provided under this Purchase Order shall be free of all liens or encumbrances of any kind. In the event Seller obtains any mechanic’s or other lien, by operation of law or otherwise, Seller will submit to Buyer a fully executed waiver of lien as well as an affidavit stating that all releases and receipts include all material, labor, and services against which a lien could be filed. Seller shall assume all costs relating to the discharge of any lien that it or any subcontractor places under this Purchase Order. Seller shall submit any required waiver of lien or affidavit prior to Buyer releasing payment.
Warranty
Seller warrants that all goods, equipment, services and material(s) used in/for services provided hereunder (a) conform to Buyer’s requirements and specifications, (b) are new and of the best quality unless previously agreed to by Buyer, (c) are free of defects in design, materials, manufacture, and workmanship, and (d) conform to all Seller’s representations including, but not limited to, title and free/clear ownership. Seller further warrants that to the best of its knowledge, provided goods and services are suitable for their intended purposes and are free of asbestos, lead, other contaminant(s), carcinogens, and banned substances or ingredients. In the event goods or services are found to be non-conforming, Buyer may take all necessary action to correct the non-conformance at Seller’s expense. If Seller fails to promptly correct the work, Buyer may reject the work and terminate the Purchase Order.
This warranty shall survive to the benefit of Buyer’s successors, assigns, customers or users of the goods or services. Unless otherwise defined by Buyer or mutually agreed differently by Buyer & Seller with either being confirmed in writing on the obverse side of the Purchase Order, Seller’s warranty will be for twelve (12) months from installation and first acceptable use or eighteen (18) months from receipt of goods or services whichever occurs later. The original warranty time period shall also be in effect from the date of each repair or replacement of any defective goods, equipment, or services.