Terms and Conditions of Purchase



  1. PARTIES. “Purchaser” shall mean the purchasing party submitting the purchase order to the selling party.  “Seller” shall mean the selling party with which Purchaser places its purchase order(s).  The goods and services covered by Purchaser’s purchase order and all parts, portions, deliverables, items, attachments, repairs, replacements and substitutions thereof are collectively referred to as the “Products”.


  1. AGREEMENT AND ACCEPTANCE. These General Terms and Conditions of Purchase (“Terms and Conditions”) along with Purchaser’s purchase orders, any releases, requisitions, work orders, shipping instructions, supplemental terms and conditions and any other document, whether expressed in written form or by electronic data interchange provided by Purchaser (collectively, the “Agreement”) will exclusively govern the purchase of Products by Purchaser and represents the entire agreement between Purchaser and Seller with respect thereto.  Acceptance of Purchaser’s purchase order shall constitute Seller’s agreement to comply with and be bound by the Agreement, including but not limited to these Terms and Conditions.  Purchaser objects to and rejects any other terms and conditions that may be proposed by Seller or that appear on or are referenced in Seller’s quotation, bid, acknowledgement, or other documents of Seller that are in addition to or otherwise not consistent with the Agreement. Trade usage and course of dealing or performance shall not vary, explain or supplement the Agreement.  Any reference on the face of Purchaser’s purchase order to any bid, proposal or offer of sale is deemed to be limited to the description of the Products and shall not affect or modify the Agreement.  Any terms and conditions on Seller’s internet site to which agreement by Purchaser in any manner, whether through an online electronic agreement, deemed implied by site use, or otherwise, is required in any manner during performance of this Purchase Order, will be null and void and of no legal effect on Purchaser.


  1. PRICE AND PAYMENT. Unless otherwise set forth on Purchaser’s purchase order, invoice payment terms are 2%/10 days, net prox 25th.  Unless the face of Purchaser’s purchase order states to the contrary, all quoted prices are (a) firm and not subject to increase or additional charges; (b) in U.S. dollars; and (c) inclusive of all freight, duty and taxes other than sales or use taxes Seller is required by law to collect from Purchaser.  Such sales or use taxes shall not be included in Seller’s invoice if Purchaser indicates that the Products are exempt from such taxes.  Applicable taxes shall be separately stated on Seller’s invoice.  Purchaser may set-off payments made to Seller for amounts owed by Seller to Purchaser.


  1. NO MINIMUM PURCHASE. Unless otherwise expressly stated on the face of Purchaser’s purchase order, nothing in the Agreement obligates Purchaser to purchase or acquire any minimum level of Products from Seller.  No territorial protection or rights are given or intended to be given to Seller under the Agreement.


  1. TITLE, SHIPMENT, AND RISK OF LOSS. Unless otherwise specified herein, title to the Products (and in the event Products are made to order, then title to all material, inventory and work in progress, design data, other documentation, and all contractual rights thereto) will vest in Purchaser immediately upon acceptance by Purchaser, payment by Purchaser, or identification to this Purchase Order, whichever first occurs. If Products are made to order or the Purchase Order otherwise specifies that title will vest in the Products upon identification to this Purchase Order, Seller will take action to segregate the Products and clearly label them as property of Purchaser. In the event of cancellation or termination of this Purchase Order, Purchaser has the right to enter Seller’s (or Seller’s agent’s, contractor’s or supplier’s) premises during regular business hours and take possession of any Products, including any related drawings, records, materials to be incorporated into the Products, and equipment, for which Purchaser has paid Seller, provided to Seller by Purchaser, or which have been identified to this Purchase Order or created by Seller hereunder, and Purchaser shall be obligated to pay Seller for any unpaid portion of the Products or equipment of which Purchaser takes possession. Seller warrants free and clear title to the Products, free and clear from any and all liens, claims, restrictions, reservations, security interests and encumbrances. If applicable, Seller is responsible for properly and carefully preparing, labeling, packing and shipping the Products, at its expense unless otherwise specified herein, and providing all required shipping documentation. Purchaser shall not be charged for packing, marking or shipping unless separately itemized on the face of Purchaser’s purchase order. Purchaser’s purchase order number must appear on the container, the packing list, invoice and correspondence relating to the purchase order. In the shipping process, Seller will comply with all laws and regulations applicable to the Products in addition to any requirements or instructions of Purchaser as may be specified in this Purchase Order or otherwise in writing pertaining thereto. Irrespective of vesting of title and any other provision herein to the contrary, Seller will bear the risk of loss and damage, and will insure or self-insure for the benefit of Purchaser, the Products in its care, custody and control, including free issue material supplied to Seller for incorporation into, or work in conjunction with, the Products in accordance with the provisions of this Purchase Order. Should any loss or damage occur to the Products prior to acceptance by Purchaser, Purchaser at its option may cancel this Purchase Order without any cancellation fee, charge, penalty, or liability, and any amounts paid by Purchaser for such Products shall be refunded in full to Purchaser. Should any loss or damage occur to any free-issue materials provided to Seller, in addition to Purchaser’s right to cancel this Purchase Order, Seller shall either, at Purchaser’s option, immediately replace such materials with identical materials in order to meet its performance obligations hereunder, or reimburse Purchaser for the loss, including any necessary additional expenses and costs which may be incurred resulting from such loss. Upon request, Seller shall provide adequate insurance coverage, naming Purchaser (and if applicable at Purchaser’s request, any owner or other person) as additional insured, for its obligations under this Paragraph.


  1. TIME OF PERFORMANCE. SELLER ACKNOWLEDGES THAT THE TIME REQUIRED FOR PERFORMANCE AND THE DELIVERY SCHEDULE SPECIFIED HEREIN ARE CRITICAL, MATERIAL AND OF THE ESSENCE TO PERFORMANCE OF THIS PURCHASE ORDER FOR THE AVOIDANCE OF SUBSTANTIAL LOSS TO PURCHASER, VARIOUS CONTRACTORS AND ANY OWNER. SELLER’S UNEXCUSED FAILURE TO MEET THE DELIVERY SCHEDULE WITHOUT PURCHASER’S WRITTEN CONSENT MAY CONSTITUTE A BREACH OF CONTRACT OR DEFAULT HEREUNDER. Any such consent by Purchaser, however, will not constitute a waiver of any provision herein but will serve only to delay the delivery schedule. In the event of delay, or anticipated delay, from any cause, including force majeure, Seller will immediately notify Purchaser in writing of the delay or anticipated delay, and its approximate duration, and Seller will undertake to mitigate, shorten or make up the delay by all reasonable and expeditious means. A force majeure event (defined below) shall be an excused delay, provided Seller has provided timely written notice of the occurrence of such event to Purchaser. If possible, Seller agrees to take all reasonable commercial efforts to reduce or mitigate the effects of such delay. Purchaser, at its option, may require or approve in writing a change in the delivery schedule or progress requirements as established in this Purchase Order in response to Seller’s notice. If Seller fails to obtain the approval of Purchaser for any such change, and Seller fails for any reason to meet the delivery schedule, progress requirements, or it becomes apparent that Seller will not for any reason meet the schedule or progress milestones, Purchaser may in such case, without penalty, cancellation fee, restocking or other fee or charges, and without prejudice to any other rights which it may have, cancel all or any part of the Purchase Order and take any other action as Purchaser may consider necessary or desirable under the circumstances to avoid or minimize losses. Purchaser may backcharge Seller for all direct costs and expenses of any nature resulting from Seller’s unexcused nonperformance, delays or failure to meet the required delivery schedule.


  1. INSPECTION, ACCEPTANCE OF PRODUCTS. Purchaser and its authorized representatives shall have the right, but not the obligation, to inspect the Products at times and places designated by Purchaser before, during or after delivery or performance.  All Products shall be subject to final inspection by Purchaser or its authorized representatives and acceptance at the final destination specified.  Purchaser’s making of or failure to make an inspection, examination or test of, or payment for, or Purchaser’s acceptance of the Products shall in no way relieve Seller from its obligation to conform to all of the requirements of the Agreement and shall in no way impair Purchaser’s right to reject or revoke acceptance of nonconforming Products, or to avail itself of any other remedies to which Purchaser may be entitled, notwithstanding Purchaser’s knowledge of the nonconformity, its substantiality or the ease of its discovery.  Purchaser reserves the right to review Seller’s quality assurance and quality control procedures.  If required by Purchaser, Seller will supply satisfactory evidence of the origin, composition, manufacture, kind and quality of the Products.


  1. NONCONFORMING PRODUCTS AND SERVICES. All Products not fully conforming to the terms of the Agreement, including any specifications, drawings and/or data submitted to Seller, or shipped contrary to instructions, or in excess of the quantities or substituted for Products provided in Purchaser’s purchase order, or not shipped in containers conforming to Purchaser’s specifications (or in the absence of such specifications, in recognized standard containers), or violating any statute, ordinance, or administrative order, rule, or regulation, may be rejected by Purchaser and returned or held at Seller’s expense and risk.  Purchaser may charge to Seller, all expenses of inspecting, unpacking, examining, repacking, storing, and reshipping any Products rejected for the reasons noted herein.  The remedies hereinabove afforded Purchaser shall not be exclusive, and Purchaser may hold Seller liable for any and all damages arising from any breach or default set forth herein. 


  1. Seller warrants with respect to the Products that: (a) Seller has clear title, free of all liens and encumbrances; (b) there are no claims of third parties of any nature whatsoever arising out of or related to the Products; (c) the Products are new and in strict conformance with the specifications, drawings, samples, designs or other descriptions furnished to or by Seller, and shall be merchantable, of good quality and workmanship, free from defects in material, performance, operation and workmanship, and fit for Purchaser’s particular purpose; (d) Products of Seller’s design will be free from defects in design; (e) Seller and its personnel will perform and fulfill the purchase order exercising the standards of diligence, skill and care normally exercised by similarly qualified and competent persons in the performance of comparable work in accordance with best industry practices; (f) the Products will conform in all respects to the specifications and requirements of the Agreement and fulfill the particular purpose intended; and (g) the Products conform with all applicable laws, ordinances, codes and regulations.


The Products will be warranted hereunder, as may be applicable, for a period of one (1) year after the date of acceptance by Purchaser’s customer, or twenty-four (24) months from date of delivery to and acceptance by Purchaser, whichever period expires earlier. All work on the Products or otherwise in the performance of this Purchase Order will be done in a skilled manner and of the highest quality of workmanship. Seller further warrants that the Products will be of sufficient size and capacity, and of correct materials, to properly perform any functions or purpose specified in this Purchase Order.


  1. WARRANTY REMEDIES. If Purchaser discovers any defect, error, noncompliance, omission, operational or performance deficiency, or breach of warranty set forth above as to the Products, upon notice from Purchaser, Seller will promptly repair, reperform, or replace, without cost, the Products in question (including bearing any necessary removal, reinstallation, access, shipping, labor and other direct costs resulting therefrom) in accordance with Purchaser instructions. If Seller fails to proceed promptly with and complete the repair, reperformance, or replacement of the defective Products, Purchaser may repair, reperform, or replace the Products and charge all related direct costs (including labor and access costs) to Seller without voiding the warranties herein, and without Purchaser waiving any other rights or remedies it may have under this Purchase Order. Such repair, reperformance, or replacement will be re-warranted for a period of twelve (12) months from the date of its acceptance by Purchaser. If Purchaser determines, for any reason, that the remedies provided for herein are not adequate or feasible, Purchaser may elect to have such Products removed at Seller’s expense and any portion of the purchase price paid refunded in full. Purchaser’s customer or assignee of this Purchase Order as well as Purchaser will have the benefit of the foregoing warranty and warranty remedies herein, and such rights and remedies are in addition to any other rights or remedies provided in law, equity, or under this Purchase Order.


  1. PAYMENTS, LIENS, RIGHT TO SET OFF, BACKCHARGES. Seller agrees to keep the project, premises and other property of Purchaser, any owner, and any other person, free and clear from any and all claims, liens, restrictions, reservations, security interests and encumbrances arising from this Purchase Order, Seller’s performance or non- performance, or related to the Products. To the maximum extent allowed by law, Seller agrees to release, defend, indemnify, and hold harmless the Purchaser from and against any and all laborers’, materialmen’s, mechanic’s, subcontractors, or any other liens, claims, restrictions, reservations, security interests and encumbrances arising from, alleged to arise from, or in any way arising from this Purchase Order, Seller’s performance or nonperformance, or related to the Products. Seller agrees that any payment made by Purchaser constitutes trust funds intended for the benefit of any contractors, suppliers and laborers. At any time, if Seller fails to make any payment to any of its contractors, suppliers and laborers, Purchaser may elect to pay such beneficiaries directly or by issuance of joint checks, or take any other action required to prevent imposition of a lien. Regardless of the payment terms in this Purchase Order, Purchaser’s obligation to pay the purchase price is conditioned upon (a) receipt of completed, non-defective conforming Products; (b) receipt and acceptance by Purchaser of Seller’s accurate and properly completed invoice accompanied by satisfactory supporting documentation; and (c) compliance by Seller with all terms and conditions of this Purchase Order. Seller agrees to pay promptly when due all bills for labor, material, equipment or services in connection with the Products. If such bills are not promptly paid by Seller when due, Purchaser may pay them and Seller will immediately reimburse Purchaser therefore. Purchaser may at its discretion set off any funds owed by Seller against any other amounts due to Seller under any other contract with Purchaser, owner, or any affiliate of either. Seller waives all rights of lien against the premises, facilities, equipment and other property of Purchaser and any owner. Any sums due Seller hereunder may be applied by Purchaser as a set off against any sums owed by Seller to Purchaser or any of its affiliates or against any claims of third parties against Purchaser arising from Seller’s performance, breach or default, hereunder, whether under this or any other purchase order or other contract. At its sole discretion, Purchaser may withhold from payments to be made to Seller amounts legally required to be withheld from such payments and remitted to the taxing authority of any jurisdiction relevant to the transaction. Upon prior notice to Seller and Seller’s failure to cure within the period of time contained therein, Purchaser reserves the right to backcharge Seller for any losses, damages, claims, costs and expenses incurred resulting from Seller’s breach of any provision of this Purchase Order. Purchaser may withhold or set-off any payment due under this or any other contract with Seller or any of its affiliates in order to recover such backcharged amounts.


  1. SUBCONTRACTORS, SUBVENDORS AND SUBSUPPLIERS. Purchaser reserves the right to approve or disapprove any subcontractors, subvendors, or subsuppliers proposed by Seller to be involved in Seller’s implementation of or performance under this Purchase Order. Prior to entering into this Purchase Order, Seller will submit a listing of all such proposed subcontractors, subsuppliers, or subvendors for review and approval by Purchaser. Seller agrees that Purchaser has the right to contact or visit any of Seller’s subcontractors, subvendors, or subsuppliers directly to confirm delivery commitments or the origin, composition, manufacture, kind, quantity, or quality of any Products provided thereunder. Any approval by Purchaser will not constitute a waiver of any term or condition hereunder, at law, or in equity, nor relieve Seller of any obligation herein. Seller will ensure that terms and conditions substantially similar to those in this Purchase Order are contained in any contract issued to any subcontractor, subsupplier or subvendor for any goods, materials, equipment, services, work or other items to be provided under this Purchase Order. Upon request, Seller agrees to submit to Purchaser copies of any contract with any subcontractor, subvendor, or subsupplier (with pricing deleted) for any item procured pertaining to this Purchase Order.


  1. PURCHASER’S PROPERTY. All tools, dies, molds, templates, equipment, specifications, data, drawings, designs, software or materials furnished by Purchaser to Seller or paid for by Purchaser (collectively, “Items”), including replacements and materials attached thereto, shall remain and be marked as the personal property of Purchaser.  The Items shall be separately stored and insured by Seller, and Seller assumes all risk of loss and liability arising out of or related to the Items, until the Items are returned to Purchaser.  The Items shall be used by Seller only for filling Purchaser’s purchase orders and are subject to immediate removal, at Purchaser’s written request, with each Item to be delivered, at Seller’s expense, in its original condition, reasonable wear and tear excepted.


  1. COMPLIANCE WITH LAWS. In providing Products, Seller shall comply with any and all applicable federal, state, local, and international laws, regulations, ordinances, executive orders, rules, orders, standards, conventions, directives, and treatises, including, but not limited to those relating to: (a) design, manufacture, transportation, sales, advertising, branding, distribution, exportation, importation, labeling, packaging, decoration, certification and approval of the Products or (b) employment discrimination, hours and conditions of employment, occupational health and safety, wages, environmental matters, product safety, corrupt or deceptive practices, boycotts, antitrust, consumer products, or government subcontracting.  If applicable to this Purchase Order, Seller will specifically comply with the U.S. Occupational Safety and Health Act (OSHA), and any State Plan approved thereunder, and any regulation thereunder, including without limitation, OSHA Hazard Communication Standard 29 CFR 1910.1200 and 1926.59 regarding container labeling, warning notices, and Material Safety Data Sheets. Upon Purchaser written request, Seller will provide any certification of compliance required by any federal, state, or local law, ordinance, code, or regulation. From time to time, upon Purchaser’s request, Seller shall certify Seller’s compliance with the foregoing.


  1. HAZARDOUS AND DANGEROUS GOODS. Seller is solely responsible for examining, inspecting, identifying, and determining whether or not any Products provided hereunder (in whole or in part) constitute hazardous or dangerous goods, and to notify Purchaser of such prior to shipment of the Products. Unless expressly exempted by Purchaser in writing in the Purchase Order, Seller is responsible to determine if a Material Safety Data Sheet (MSDS) is required for the Products, and if so, to supply with the Products all such required MSDS documentation and information. In the event any Products or any portion thereof are so identified by Seller, Seller shall ensure that such Products are properly handled, labeled, documented, packaged, transported, and shipped in full compliance with any applicable legal requirements, to the point of delivery to Purchaser. It is the sole responsibility of the Seller to ensure the compliance by all suppliers, manufacturers, and subcontractors of all tiers with the provisions of this paragraph, including but not limited to timely, complete and proper submittal of all required documents and information. Seller shall inform Purchaser in writing prior to shipment of any precautionary measures that need to be taken with the Products.


  1. Purchaser may, at any time, make changes to any purchase order, including, but not limited to, changes in the quantity, delivery time or place, shipping or packing method, or any drawings, specifications or designs.  If such a change causes a material increase or decrease in the cost of, or the time required for, performance of the purchase order, Seller shall notify Purchaser in writing immediately.  Any claim by Seller for an adjustment in time for performance or price must be asserted in writing within five (5) days from date of notification of a change.  No change shall be binding on Purchaser unless agreed in writing by an authorized representative of Purchaser.  Seller will make no modification, change, substitution, or revision to the Products without Purchaser’s prior written consent.


  1. Purchaser reserves the right at any time and for any cause to suspend further performance of all or part of any purchase order, upon written notice thereof to Seller.  If work is suspended in accordance herewith: (a) except to the extent suspension arises from any act, omission or default of Seller, Seller shall be reimbursed for Seller’s actual direct net costs and expenses incurred as a result of suspension which shall be subject to audit by Purchaser; (b) Seller shall have no further claim against Purchaser for damage or loss resulting from such suspension including loss of profit or business opportunity, indirect, incidental or consequential damages; (c) Seller shall resume performance upon written notice by Purchaser; and (d) Seller shall properly care for, protect and insure all work in progress and materials, supplies and equipment Seller has on hand for performance of the purchase order.


  1. TERMINATION AT PURCHASER’S OPTION. Purchaser may terminate a purchase order at any time without cause in whole or in part by written notice, whereupon Seller will stop work on the date and to the extent specified in such notice and terminate all orders and subcontracts that relate to the terminated purchase order.


  1. TERMINATION FOR DEFAULT. If Seller (a) fails to deliver Products at the time specified in the Agreement or fails to make progress so as to endanger performance of the work or impair delivery dates; (b) fails to perform any other provision hereof and does not cure such failure within a period of ten (10) days after receipt of written notice from Purchaser specifying such failure; (c) becomes financially unstable, insolvent, makes an assignment in favor of creditors, or enters bankruptcy or dissolution procedures; or (d) is merged into another company, Purchaser may cancel the whole or any part of any purchase order without any liability, except for payment due for Products delivered and accepted to date.  Upon such termination, Purchaser will have the right, upon notice to Seller, to take title to and possession of all or any part of such materials, work-in-process or finished Products, any special tooling and all drawings, technology and information furnished by Purchaser.


  1. CONFIDENTIAL INFORMATION. Purchaser may disclose confidential or proprietary information (“Confidential Information”) to Seller under the Agreement.  Confidential Information includes, but is not limited to, any business, financial, product or customer information, along with any information identified by Purchaser as confidential.  Seller agrees not to disclose Confidential Information to any third party and will use such information only as is necessary to perform its obligations under the Agreement.  Upon the expiration or termination of the Agreement for any reason, Seller will promptly deliver to Purchaser all such Confidential Information.  Seller agrees to limit its internal distribution of Confidential Information to its employees who have a need to know, and to take steps to ensure that the dissemination is so limited, including the execution by Seller’s employees of nondisclosure agreements with provisions no less restrictive to those set forth herein.  In no event will Seller use less than the degree of care and means that it uses to protect its own information of like kind, but in any event not less than reasonable care, to prevent the unauthorized use or disclosure of the Confidential Information.  Seller further agrees not to use the Confidential Information except in the course of performing under the Agreement and will not use the Confidential Information for the benefit of anyone other than Purchaser.


  1. Seller shall defend, indemnify and hold Purchaser, its affiliates and their respective directors, officers, employees, customers, agents, contractors, successors and assigns harmless from and against any and all claims, liabilities, losses, damages, actions and expenses (including attorneys’ fees) in connection with, arising out of, or relating to: (a) any breach by Seller of its warranties, covenants or obligations hereunder; (b) any injury (including death), property damage, or economic loss arising out of or related to (i) the Products or (ii) the acts or omission of Seller or its employees or subcontractors, including work at Purchaser’s premises or using Purchaser’s property, unless resulting from the sole negligence of Purchaser; (c) any infringement or contributory infringement of a patent, trademark, copyright, or other proprietary interest by reason of the manufacture, delivery, license, use or sale of the Products (“Infringement”), regardless whether (a) through (c) arise in tort (including negligence), contract, warranty, strict liability, or otherwise.  Seller shall not settle any such suit or claim without Purchaser’s prior written approval.   The obligation under this paragraph shall be continuing and shall not be diminished by any approval or acceptance of or payment for the Products.


  1. INTELLECTUAL PROPERTY INFRINGEMENT. For any alleged or actual Infringement, Seller shall, at Seller’s expense, obtain for Purchaser a perpetual, royalty-free license with respect to such item, or shall replace or modify the item in a manner satisfactory to Purchaser, so as to avoid the Infringement without any degradation in performance.  Seller’s obligation shall apply even if Purchaser furnishes a portion of the design or specifications.


  1. In the event that Seller is required to produce for Purchaser inventions, original works of authorship or Products using Purchaser’s trademarks, trade names, logos or other proprietary information or trade secrets, Seller agrees that all such inventions, works, and Products which are, in whole or in part, conceived or made by Seller pursuant to this order shall be deemed “works made for hire” and shall belong exclusively to Purchaser (collectively, the “Works”).  Works include but are not limited to designs, manufactured items, or developed software and any and all related data, drawings, documents and specifications arising from Purchaser’s engagement of Seller. Seller hereby irrevocably assigns and transfers to Purchaser all rights, title and interests, of every kind and character, which Seller has in the Works and agrees to take all actions that Purchaser may reasonably request in order to vest in Purchaser such title to the Works.  This obligation shall survive any expiration or termination of any purchase order or these Terms and Conditions. Any proprietary designs, know-how, software, development tools, processes, source code, programs, or systems owned or controlled by Seller prior to the date of this Purchase Order which are incorporated or embedded into the Products (including Works) (“Seller Intellectual Property”) shall remain the intellectual property of Seller, and Seller agrees to grant and does herein grant to Purchaser, Purchaser’s customer(s), or their respective assignees, a non-exclusive, worldwide, transferable, fully-paid and perpetual license to use the Seller Intellectual Property in connection with use of the Products.  At Purchaser’s request, Seller agrees to execute such additional documents as may be required by Purchaser to confirm the provisions of this Paragraph including legal title in and to the Works.


  1. SELLER’S BREACH.  Time is of the essence.  If Seller breaches this Agreement, then upon reasonable notice to Seller, Purchaser may remedy the breach.  Purchaser may use whatever persons, entities, equipment, and materials it deems necessary to remedy the breach and Seller shall pay all of Purchaser’s direct and indirect costs incurred or reasonably anticipated to be incurred by Purchaser to remedy the breach (“Remedial Costs”) to the extent that those costs exceed the amount of compensation that would have been paid to Seller but for Seller’s breach.  Purchaser may recover from Seller the amount of any costs, loss, or damage suffered or incurred as a result of or in connection with Seller’s breach, including but not limited to Purchaser’s reasonable attorneys’ fees, penalties, and increased costs (“Damages”). Purchaser may deduct and withhold from payments otherwise due Seller the amount of any Damages and Remedial Costs. The remedies set forth in this Section are distinct, separate and cumulative, and are in addition to and not in lieu of any other rights and remedies given elsewhere in this Agreement or available to Purchaser at law or in equity.




  1. Without limiting any of Seller’s obligations under the Agreement, Seller shall purchase and maintain in full force and effect, at Seller’s sole expense, the types and limits of insurance coverage requested by Purchaser.  Seller shall provide Purchaser with certificates of insurance indicating that such insurance is valid and collectible, that Purchaser and its customer, if applicable, are named as an additional insured. Such insurance will not be cancelled or materially changed in form without at least thirty (30) days written notice to Purchaser.  Seller shall have no rights against Purchaser for any indemnification, contribution, subrogation and/or any other right to be reimbursed by Purchaser, except as expressly provided in this Agreement.  Seller hereby waives and shall cause its insurers to waive, all rights against the Purchaser and its affiliates, and their directors, officers and employees, whether in contract or tort (including negligence and strict liability) for recovery of damages covered by the insurance required by Purchaser.  Such waiver shall apply to any deductibles or self-insured reserves.  Any policy of insurance to be provided by Seller pursuant to this Agreement shall contain a clause denying the insurer any right of subrogation against Purchaser.


  1. SAFETY PROTECTIVE MEASURES AND PRECAUTIONS; ON-SITE SERVICES. Seller agrees to take such safety protective measures and precautions as are required by law, ordinances, industrial code, applicable municipal, state and federal safety regulations, and to cooperate fully with Purchaser, and any insurance carrier to comply with their recommendations so that the services will be performed and the Products will be produced and delivered with the greatest degree of safety.  When services are to be performed at any location owned, leased, operated, or occupied by Purchaser, Seller shall, and shall ensure that its personnel comply with, each of the rules and policies of Purchaser or Purchaser’s customer with respect to the performance of the services, access to any site and the conduct of any work at the site.


  1. INDEPENDENT CONTRACTOR. Seller is an independent contractor and will not act as, or be regarded as, a partner, co-venturer, representative, agent or employee of Purchaser, and Seller and its personnel will not be entitled to any benefits which accrue to any employee of Purchaser by virtue of their status as an employee.


  1. FORCE MAJEURE. Neither party shall be liable to the other party for failure to perform obligations under this Agreement due to acts of civil or military authority, national emergencies, insurrection, war, terrorism, threat of terrorism, public utility failures, acts of God, or other similar matters not within the control of such party, which would not have been avoided by acting in accordance with good industry practices, and which occur after the time of purchase order (“force majeure events”).  A party who is affected by a force majeure event shall give prompt notice to the other party, specifying the nature of the force majeure event and the expected delay in performance. The change in cost or availability of materials or components based on market conditions, supplier actions, contract disputes or any labor strike or other labor disruption applicable to Seller or any of its Subcontractors will not excuse Seller’s performance (under theories of force majeure, commercial impracticability or otherwise), and Seller assumes these risks.


  1. RIGHTS GRANTED. Seller hereby grants to Purchaser a non-exclusive right to promote and resell the Products.  Seller grants to Purchaser a non-exclusive, non-transferrable and non-assignable right to use and reproduce Product images and Product and manufacturer trademarks and service marks.  Such use and reproduction rights include, but are not limited to, copying, publishing or cropping any such images and marks for display on Purchaser’s website, in its brochures or other media for the purpose of advertising the Products or otherwise disseminating information about the Products.  Seller will provide Purchaser with advertising programs, electronic images of products, trademarks and service marks, catalogues, bulletins, product and sales training, and such other sales promotion assistance as may be requested by Purchaser.


  1.  In the event any provision of the Agreement shall be deemed to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired hereby.  The parties agree to replace any invalid provision with a valid provision, which most closely approximates the intent and economic effect of the invalid provision.


  1. The Agreement or any rights or interest therein may not be assigned, delegated or encumbered in whole or in part, or sold or transferred as part of a sale of Seller or its business, stock or assets without Purchaser’s prior written consent, including without limitation, the subcontracting of work to be performed under the Agreement.


  1. REMEDIES; WAIVER. A waiver of any default hereunder or of any term or condition of the Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or any other term or condition, but shall apply solely to the instance to which such wavier is directed.  The rights and remedies reserved to Purchaser are cumulative and in addition to any other or further rights and remedies available at law or in equity.


  1. GOVERNING LAW. This contract shall be governed in accordance with the laws of the state of Purchaser’s corporate headquarters, USA, without regard to its conflicts of laws principles.  The parties agree that the 1980 UN Convention on Contracts for the International Sale of Products will not apply.  Seller and Purchaser hereby agree that any legal proceeding with respect to the Agreement shall be brought only in a court of the state of Purchaser’s corporate headquarters or in a court of the United States sitting in the state of Purchaser’s corporate headquarters, and both Seller and Purchaser submit to and accept generally and unconditionally the personal jurisdiction of those courts.


20210514 Terms and Conditions of Purchase