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MEDALLION CABINETRY PURCHASE ORDER TERMS AND CONDITIONS
1. ACCEPTANCE – AGREEMENT
These terms and conditions govern all Purchase Orders issued by Purchaser to the Seller indicated on the Purchase Order. Seller’s commencement of work on the goods subject to any Purchase Order or shipment of such goods, whichever occurs first, shall constitute acceptance of the Purchase Order and these Terms and Conditions. Any acceptance of a Purchase Order is limited to the express terms contained on the face of any applicable Purchase Order and these Terms and Conditions (the “Contract Terms). Unless expressly agreed to in writing by an authorized representative of Purchaser, any proposal for additional or different terms or any attempt by Seller to vary in any degree any of the terms of this offer in Seller’s acceptance is hereby objected to and rejected and these Contract Terms shall be the complete and exclusive statement between Seller and Purchaser.
2. TERMINATION FOR CONVENIENCE OF PURCHASER
Purchaser reserves the right to terminate any Purchase Order or any part thereof for its sole convenience upon giving notice to Seller. In the event of such termination, Seller shall immediately stop all work, and shall immediately cause any of its suppliers or subcontractors to cease such work. Purchaser shall be liable to Seller only for services satisfactorily performed or conforming goods delivered prior to notice of termination. Seller shall neither be paid for any work done after receipt of the notice of termination nor for any costs incurred by Seller, Seller’s suppliers or subcontractors, including costs of raw materials.
3. TERMINATION FOR CAUSE
Purchaser may also terminate any Purchase Order or any portion thereof for cause in the event Seller fails to comply with any of the Contract Terms. In addition, deterioration in Seller’s financial condition, absent reasonable assurances of future performance, shall allow Purchaser to terminate any Purchase Order for cause.
4. PROPRIETARY INFORMATION – CONFIDENTIALITY – ADVERTISING
Seller shall consider all information furnished by Purchaser to be confidential and shall not disclose any such information to any other person or use such information itself for any purpose other than performing its obligations under the Purchase Order. This paragraph shall apply to all drawings, specifications, or other documents prepared by Seller for Purchaser in connection with the Purchase Order. Seller shall not advertise or publish the fact the Purchaser has contracted to purchase goods from Seller, nor shall any information relating to the order be disclosed without Purchaser’s written permission. Upon request of Purchaser, Seller shall return or destroy all such information. Seller’s obligations under this paragraph survive the cancellation, termination, or completion of the Purchase Order.
5. WARRANTY
Seller warrants that all goods and services furnished to Purchaser as a result of any Purchase Order have been manufactured, distributed, and delivered in compliance with all applicable federal, state and local laws, regulations and ordinances. Seller expressly warrants that all goods or services furnished pursuant to this Purchase Order shall (i) conform to all applicable specifications, descriptions and appropriate standards and will be free from defects in material and workmanship, (ii) be merchantable, safe and appropriate for the purpose for which the good services of that kind are normally used, and (iii) be free and clear of all liens and encumbrances, good title thereto being in Seller. If Seller knows or has reason to know the particular purpose for which Purchaser 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 hereunder will conform in all respects to samples previously provided and to the most current specifications. Seller’s warranty shall run to Purchaser, its successors, assigns and customers, and users of goods sold by Purchaser pursuant to this Purchase Order. In the event of failure of Seller to correct defects in or replace nonconforming goods or services promptly, Purchaser, after reasonable notice to Seller, may make such corrections, replace such goods or services and charge Seller for the cost incurred by Purchaser in doing so.
6. PRICE
Seller warrants that the prices for the goods sold hereunder are not less favorable than those currently extended to any other customer for the same or similar goods in similar quantities after taking into effect all discounts and rebates. In the event Seller reduces its price for such goods during the term of any Purchase Order, Seller agrees to reduce its price for such goods during the term of any Purchase Order, Seller agrees to reduce the prices hereof correspondingly. Seller warrants that the prices shown on the Purchase Order shall be complete, and no increase in prices or additional charges of any type, including surcharges, shall be added without Purchaser’s express written consent. Unless otherwise stated in the Purchase Order, delivery of goods shall be DAP destination (Purchaser’s plant location) with Seller to incur freight, boxing, packing or other charges.
7. FORCE MAJEURE
Purchaser may delay receipt or acceptance of goods of services pursuant to this Purchase Order if the delay is occasioned by causes beyond its control. Seller shall hold such goods at the direction of the Purchaser and shall deliver them when the cause affecting the delay has been removed. Purchaser shall be responsible only for Seller’s direct additional costs of holding the goods delaying performance hereunder at Purchaser’s request.
8. INDEMNIFICATION
Seller shall, at Seller’s sole cost and expense, release, defend, indemnify and hold harmless Purchaser, its directors, officers, agents, and employees from, and against, any and all damages, liabilities, claims. losses, and expenses (including reasonable attorney fees) arising out of, or resulting in any way from (i) any alleged defect or non-conformity in the goods or services purchased hereunder, (ii) any act of omission of Seller, its agents, employees, or subcontractors, (iii) any recall of the goods in conjunction with the Consumer Products Safety Commission, or (iv) any claim that the goods or services infringe a patent, copyright, trademark, trade secret or other intellectual property right of a third party.
9. INSURANCE
Seller agrees to carry and to furnish certificates from its insurance carrier to Purchaser showing that it carries insurance in the following minimum limits: (a) worker’s compensation – statutory limits for states in which the work is to be performed, (b) general liability with minimum limits of $1,000,000 each occurrence, and in the aggregate (c) auto liability with minimum limits of $1,000,000 each occurrence and in the aggregate. Seller agrees to obtain and provide to Purchaser certificates reflecting vendor’s endorsements under such insurance policies naming Purchaser as an additional insured thereunder. All policies of insurance specified herein shall provide, at the request of Purchaser, that the coverage thereunder shall not be terminated without at least ten (10) days’ prior written notice to Purchaser.
10. INSPECTION/ TESTING
Payment for or receipt of the goods delivered hereunder shall not constitute acceptance thereof. Purchaser shall have the right to inspect such goods and reject any of all of such goods which are in the Purchaser’s sole judgment defective or non-conforming. Goods rejected hereunder may be returned to Seller at its expense, and, in addition to Purchaser’s other rights, Purchaser may charge Seller all expenses of unpacking, examining, repacking and reshipping such goods. In the event Purchaser received goods whose defects or non-conformity is not apparent on examination, Purchaser reserves the right to reject or revoke any acceptance of such goods and to require replacement as well as payment of damages. If any inspection or test is to be made on the premises of Seller, Seller without additional charge shall provide all reasonable facilities and assistance for the safety and convenience to the inspectors in the performance of their duties.
11. ENTIRE AGREEMENT
Except as provided in written contract executed by both Purchaser and Seller, these Contract Terms constitute the entire agreement between the parties concerning the goods and/or services specified herein. The terms and provisions hereof may not be modified in the absence of the prior express written consent of Purchaser.
12. ASSIGNMENTS AND SUBCONTRACTING
No part of this order may be assigned or subcontracted without the prior written approval of Purchaser.
13. SET – OFF
All claims for money by Seller against Purchaser shall be subject to deduction or offset by any claim for money of Purchaser against Seller arising
out of this or any other transaction.14. REMEDIES AND WAIVER
Purchaser’s remedies shall be cumulative and shall include any and all remedies allowed by law or equity. Purchaser’s failure to insist on performance of any of the terms of conditions herein or to exercise any right or privilege or Purchaser’s waiver of any breach hereunder shall not thereafter waive any other terms, conditions, or privileges, whether of the same or similar type.15. DELIVERY
Time is of the essence hereof, and if the delivery of goods or services is not completed by the date set forth in the Purchase Order, Purchasers reserves the rights and remedies, to terminate this Purchase Order and to purchase substitute goods or services elsewhere and charge Seller with any loss incurred. No partial shipments may be made without Purchaser’s written consent. Purchaser has the right to cancel any outstanding balance. Goods supplied in excess of quantities called for hereunder may be returned to Seller at its expense, and, in addition to Purchaser’s other rights, Purchaser may charge Seller all expenses of unpacking, examining, repacking and reshipping such good. Seller shall report any delays in delivery schedule immediately as they become known to the Seller. Purchaser may, upon reasonable notice to Seller, cancel schedules specified in the Purchase Order.
16. LIMITATION ON PURCHASER’S LIABILITY – STATUTE OF LIMITATIONS
IN NO EVENT WILL PURCHASER BE LIABLE TO SELLER OR ANY THIRD PARTY, IN CONTRACT, TORT OR OTHERWISE, FOR ANY LOSS OF PROFITS OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING FROM OR AS A RESULT OF THIS PURCHASE ORDER OR ANY AGREEMENT BETWEEN THE PARTIES RELATING TO THE PRODUCTS OR SERVICES SUPPLIED HEREUNDER, EVEN IF PURCHASER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Any action resulting from any breach on the part of Purchaser as to goods or services delivered hereunder must be commenced within one year after the cause of action has accrued.
17. SHIPPING PACKING AND RISK OF LOSS
All goods shall be suitably packed, marked with Purchaser’s purchase order number and shipped in accordance with shipping instructions specified herein and other wise in accordance with the requirements of common carriers so as to obtain the lowest transportation cost. No charge shall be made to Purchaser for boxing, packing, carting unless specifically itemized on the face hereof. Seller shall be liable to Purchaser for any loss or damage resulting from Seller’s failure to act so as to provide adequate protection during shipment. Unless the Purchase Order indicates that the goods are Ex Works, risk of loss or damage in transit shall be Seller’s sole responsibility and liability until conforming goods are delivered to and accepted by Purchaser. Additional expenses, with other shipping instructions, or improper description of the shipment and shipping documents shall be assumed by Seller. Purchaser’s purchase order number must be placed on all invoices and shipping papers.
18. PURCHASER PROPERTY
Any materials, parts or tools furnished by Purchaser with a Purchase Order shall be deemed to be held by Seller on consignment, shall remain the property of Purchaser and shall be returned to Purchaser on demand. Seller agrees to maintain said materials in proper working order and repair and to protect them against loss or damage. Seller further agrees to mark or tag said materials (insofar as practical) to clearly indicate Purchaser’s ownership thereof.
19. TAXES
Purchaser shall not be liable for any taxes, duties, customs or assessments in connection with the purchase and/or delivery of goods ordered
hereunder, except such as are expressly set forth on the face hereof.20. CHANGES
Purchaser may make changes in drawings, specifications, quantities, delivery schedules or methods of shipment or packaging on any item at any time. If such changes result in an increase or decrease in costs, and equitable adjustment of price and delivery schedule may be made, or Purchaser may, as its option, terminate the Purchase Order if agreement on an equitable adjustment cannot be reached. Seller must assert claims for equitable adjustment within ten (10) days of the change order. This order together with any change orders or instructions approved by Purchaser in writing shall constitute one integrated contract.
21. WAIVERS OF LIEN
Seller shall furnish all necessary lien waivers, affidavits, or other documents required to keep the property and premises of Purchaser, or Purchaser’s customers or assignees, free from all liens, claims, encumbrances or assessments arising out of the furnishing of labor, material or equipment by any party or entity in regard to the performance of this Purchase Order, as payments are made from time to time hereunder.
22. EQUAL OPPORTUNITY CLAUSE, FAIR LABOR STANDARDS ACT, AND COMPLIANCE WITH OTHER RELEVANT FEDERAL LAWS
By acceptance of this Purchase Order, Seller hereby warrants and represents to Purchaser that Seller shall comply with the Fair Labor Standards Act and all other applicable federal, state, and local laws, regulations and orders and shall, upon request, furnish to Purchaser a certificate to such effect. The Equal Opportunity Clause in Title 41; Part 60-1.4 of the Code of Federal Regulations (Paragraphs 1-7 of President’s Executive Order 11246), the Employment of the Handicapped Clause in Title 41, Part 60-741.4, of the Code of Federal Regulations, are incorporated herein by reference if and to the extent applicable.
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YORKTOWNE CABINETRY PURCHASE ORDER TERMS AND CONDITIONS
1. ACCEPTANCE – AGREEMENT
These terms and conditions govern all Purchase Orders issued by Purchaser to the Seller indicated on the Purchase Order. Seller’s commencement of work on the goods subject to any Purchase Order or shipment of such goods, whichever occurs first, shall constitute acceptance of the Purchase Order and these Terms and Conditions. Any acceptance of a Purchase Order is limited to the express terms contained on the face of any applicable Purchase Order and these Terms and Conditions (the “Contract Terms). Unless expressly agreed to in writing by an authorized representative of Purchaser, any proposal for additional or different terms or any attempt by Seller to vary in any degree any of the terms of this offer in Seller’s acceptance is hereby objected to and rejected and these Contract Terms shall be the complete and exclusive statement between Seller and Purchaser.
2. TERMINATION FOR CONVENIENCE OF PURCHASER
Purchaser reserves the right to terminate any Purchase Order or any part thereof for its sole convenience upon giving notice to Seller. In the event of such termination, Seller shall immediately stop all work, and shall immediately cause any of its suppliers or subcontractors to cease such work. Purchaser shall be liable to Seller only for services satisfactorily performed or conforming goods delivered prior to notice of termination. Seller shall neither be paid for any work done after receipt of the notice of termination nor for any costs incurred by Seller, Seller’s suppliers or subcontractors, including costs of raw materials.
3. TERMINATION FOR CAUSE
Purchaser may also terminate any Purchase Order or any portion thereof for cause in the event Seller fails to comply with any of the Contract Terms. In addition, deterioration in Seller’s financial condition, absent reasonable assurances of future performance, shall allow Purchaser to terminate any Purchase Order for cause.
4. PROPRIETARY INFORMATION – CONFIDENTIALITY – ADVERTISING
Seller shall consider all information furnished by Purchaser to be confidential and shall not disclose any such information to any other person or use such information itself for any purpose other than performing its obligations under the Purchase Order. This paragraph shall apply to all drawings, specifications, or other documents prepared by Seller for Purchaser in connection with the Purchase Order. Seller shall not advertise or publish the fact the Purchaser has contracted to purchase goods from Seller, nor shall any information relating to the order be disclosed without Purchaser’s written permission. Upon request of Purchaser, Seller shall return or destroy all such information. Seller’s obligations under this paragraph survive the cancellation, termination, or completion of the Purchase Order.
5. WARRANTY
Seller warrants that all goods and services furnished to Purchaser as a result of any Purchase Order have been manufactured, distributed, and delivered in compliance with all applicable federal, state and local laws, regulations and ordinances. Seller expressly warrants that all goods or services furnished pursuant to this Purchase Order shall (i) conform to all applicable specifications, descriptions and appropriate standards and will be free from defects in material and workmanship, (ii) be merchantable, safe and appropriate for the purpose for which the good services of that kind are normally used, and (iii) be free and clear of all liens and encumbrances, good title thereto being in Seller. If Seller knows or has reason to know the particular purpose for which Purchaser 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 hereunder will conform in all respects to samples previously provided and to the most current specifications. Seller’s warranty shall run to Purchaser, its successors, assigns and customers, and users of goods sold by Purchaser pursuant to this Purchase Order. In the event of failure of Seller to correct defects in or replace nonconforming goods or services promptly, Purchaser, after reasonable notice to Seller, may make such corrections, replace such goods or services and charge Seller for the cost incurred by Purchaser in doing so.
6. PRICE
Seller warrants that the prices for the goods sold hereunder are not less favorable than those currently extended to any other customer for the same or similar goods in similar quantities after taking into effect all discounts and rebates. In the event Seller reduces its price for such goods during the term of any Purchase Order, Seller agrees to reduce its price for such goods during the term of any Purchase Order, Seller agrees to reduce the prices hereof correspondingly. Seller warrants that the prices shown on the Purchase Order shall be complete, and no increase in prices or additional charges of any type, including surcharges, shall be added without Purchaser’s express written consent. Unless otherwise stated in the Purchase Order, delivery of goods shall be DAP destination (Purchaser’s plant location) with Seller to incur freight, boxing, packing or other charges.
7. FORCE MAJEURE
Purchaser may delay receipt or acceptance of goods of services pursuant to this Purchase Order if the delay is occasioned by causes beyond its control. Seller shall hold such goods at the direction of the Purchaser and shall deliver them when the cause affecting the delay has been removed. Purchaser shall be responsible only for Seller’s direct additional costs of holding the goods delaying performance hereunder at Purchaser’s request.
8. INDEMNIFICATION
Seller shall, at Seller’s sole cost and expense, release, defend, indemnify and hold harmless Purchaser, its directors, officers, agents, and employees from, and against, any and all damages, liabilities, claims. losses, and expenses (including reasonable attorney fees) arising out of, or resulting in any way from (i) any alleged defect or non-conformity in the goods or services purchased hereunder, (ii) any act of omission of Seller, its agents, employees, or subcontractors, (iii) any recall of the goods in conjunction with the Consumer Products Safety Commission, or (iv) any claim that the goods or services infringe a patent, copyright, trademark, trade secret or other intellectual property right of a third party.
9. INSURANCE
Seller agrees to carry and to furnish certificates from its insurance carrier to Purchaser showing that it carries insurance in the following minimum limits: (a) worker’s compensation – statutory limits for states in which the work is to be performed, (b) general liability with minimum limits of $1,000,000 each occurrence, and in the aggregate (c) auto liability with minimum limits of $1,000,000 each occurrence and in the aggregate. Seller agrees to obtain and provide to Purchaser certificates reflecting vendor’s endorsements under such insurance policies naming Purchaser as an additional insured thereunder. All policies of insurance specified herein shall provide, at the request of Purchaser, that the coverage thereunder shall not be terminated without at least ten (10) days’ prior written notice to Purchaser.
10. INSPECTION/ TESTING
Payment for or receipt of the goods delivered hereunder shall not constitute acceptance thereof. Purchaser shall have the right to inspect such goods and reject any of all of such goods which are in the Purchaser’s sole judgment defective or non-conforming. Goods rejected hereunder may be returned to Seller at its expense, and, in addition to Purchaser’s other rights, Purchaser may charge Seller all expenses of unpacking, examining, repacking and reshipping such goods. In the event Purchaser received goods whose defects or non-conformity is not apparent on examination, Purchaser reserves the right to reject or revoke any acceptance of such goods and to require replacement as well as payment of damages. If any inspection or test is to be made on the premises of Seller, Seller without additional charge shall provide all reasonable facilities and assistance for the safety and convenience to the inspectors in the performance of their duties.
11. ENTIRE AGREEMENT
Except as provided in written contract executed by both Purchaser and Seller, these Contract Terms constitute the entire agreement between the parties concerning the goods and/or services specified herein. The terms and provisions hereof may not be modified in the absence of the prior express written consent of Purchaser.
12. ASSIGNMENTS AND SUBCONTRACTING
No part of this order may be assigned or subcontracted without the prior written approval of Purchaser.
13. SET – OFF
All claims for money by Seller against Purchaser shall be subject to deduction or offset by any claim for money of Purchaser against Seller arising
out of this or any other transaction.14. REMEDIES AND WAIVER
Purchaser’s remedies shall be cumulative and shall include any and all remedies allowed by law or equity. Purchaser’s failure to insist on performance of any of the terms of conditions herein or to exercise any right or privilege or Purchaser’s waiver of any breach hereunder shall not thereafter waive any other terms, conditions, or privileges, whether of the same or similar type.15. DELIVERY
Time is of the essence hereof, and if the delivery of goods or services is not completed by the date set forth in the Purchase Order, Purchasers reserves the rights and remedies, to terminate this Purchase Order and to purchase substitute goods or services elsewhere and charge Seller with any loss incurred. No partial shipments may be made without Purchaser’s written consent. Purchaser has the right to cancel any outstanding balance. Goods supplied in excess of quantities called for hereunder may be returned to Seller at its expense, and, in addition to Purchaser’s other rights, Purchaser may charge Seller all expenses of unpacking, examining, repacking and reshipping such good. Seller shall report any delays in delivery schedule immediately as they become known to the Seller. Purchaser may, upon reasonable notice to Seller, cancel schedules specified in the Purchase Order.
16. LIMITATION ON PURCHASER’S LIABILITY – STATUTE OF LIMITATIONS
IN NO EVENT WILL PURCHASER BE LIABLE TO SELLER OR ANY THIRD PARTY, IN CONTRACT, TORT OR OTHERWISE, FOR ANY LOSS OF PROFITS OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING FROM OR AS A RESULT OF THIS PURCHASE ORDER OR ANY AGREEMENT BETWEEN THE PARTIES RELATING TO THE PRODUCTS OR SERVICES SUPPLIED HEREUNDER, EVEN IF PURCHASER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Any action resulting from any breach on the part of Purchaser as to goods or services delivered hereunder must be commenced within one year after the cause of action has accrued.
17. SHIPPING PACKING AND RISK OF LOSS
All goods shall be suitably packed, marked with Purchaser’s purchase order number and shipped in accordance with shipping instructions specified herein and other wise in accordance with the requirements of common carriers so as to obtain the lowest transportation cost. No charge shall be made to Purchaser for boxing, packing, carting unless specifically itemized on the face hereof. Seller shall be liable to Purchaser for any loss or damage resulting from Seller’s failure to act so as to provide adequate protection during shipment. Unless the Purchase Order indicates that the goods are Ex Works, risk of loss or damage in transit shall be Seller’s sole responsibility and liability until conforming goods are delivered to and accepted by Purchaser. Additional expenses, with other shipping instructions, or improper description of the shipment and shipping documents shall be assumed by Seller. Purchaser’s purchase order number must be placed on all invoices and shipping papers.
18. PURCHASER PROPERTY
Any materials, parts or tools furnished by Purchaser with a Purchase Order shall be deemed to be held by Seller on consignment, shall remain the property of Purchaser and shall be returned to Purchaser on demand. Seller agrees to maintain said materials in proper working order and repair and to protect them against loss or damage. Seller further agrees to mark or tag said materials (insofar as practical) to clearly indicate Purchaser’s ownership thereof.
19. TAXES
Purchaser shall not be liable for any taxes, duties, customs or assessments in connection with the purchase and/or delivery of goods ordered
hereunder, except such as are expressly set forth on the face hereof.20. CHANGES
Purchaser may make changes in drawings, specifications, quantities, delivery schedules or methods of shipment or packaging on any item at any time. If such changes result in an increase or decrease in costs, and equitable adjustment of price and delivery schedule may be made, or Purchaser may, as its option, terminate the Purchase Order if agreement on an equitable adjustment cannot be reached. Seller must assert claims for equitable adjustment within ten (10) days of the change order. This order together with any change orders or instructions approved by Purchaser in writing shall constitute one integrated contract.
21. WAIVERS OF LIEN
Seller shall furnish all necessary lien waivers, affidavits, or other documents required to keep the property and premises of Purchaser, or Purchaser’s customers or assignees, free from all liens, claims, encumbrances or assessments arising out of the furnishing of labor, material or equipment by any party or entity in regard to the performance of this Purchase Order, as payments are made from time to time hereunder.
22. EQUAL OPPORTUNITY CLAUSE, FAIR LABOR STANDARDS ACT, AND COMPLIANCE WITH OTHER RELEVANT FEDERAL LAWS
By acceptance of this Purchase Order, Seller hereby warrants and represents to Purchaser that Seller shall comply with the Fair Labor Standards Act and all other applicable federal, state, and local laws, regulations and orders and shall, upon request, furnish to Purchaser a certificate to such effect. The Equal Opportunity Clause in Title 41; Part 60-1.4 of the Code of Federal Regulations (Paragraphs 1-7 of President’s Executive Order 11246), the Employment of the Handicapped Clause in Title 41, Part 60-741.4, of the Code of Federal Regulations, are incorporated herein by reference if and to the extent applicable.
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DESIGN-CRAFT CABINETS PURCHASE ORDER TERMS AND CONDITIONS
1. ACCEPTANCE – AGREEMENT
These terms and conditions govern all Purchase Orders issued by Purchaser to the Seller indicated on the Purchase Order. Seller’s commencement of work on the goods subject to any Purchase Order or shipment of such goods, whichever occurs first, shall constitute acceptance of the Purchase Order and these Terms and Conditions. Any acceptance of a Purchase Order is limited to the express terms contained on the face of any applicable Purchase Order and these Terms and Conditions (the “Contract Terms). Unless expressly agreed to in writing by an authorized representative of Purchaser, any proposal for additional or different terms or any attempt by Seller to vary in any degree any of the terms of this offer in Seller’s acceptance is hereby objected to and rejected and these Contract Terms shall be the complete and exclusive statement between Seller and Purchaser.
2. TERMINATION FOR CONVENIENCE OF PURCHASER
Purchaser reserves the right to terminate any Purchase Order or any part thereof for its sole convenience upon giving notice to Seller. In the event of such termination, Seller shall immediately stop all work, and shall immediately cause any of its suppliers or subcontractors to cease such work. Purchaser shall be liable to Seller only for services satisfactorily performed or conforming goods delivered prior to notice of termination. Seller shall neither be paid for any work done after receipt of the notice of termination nor for any costs incurred by Seller, Seller’s suppliers or subcontractors, including costs of raw materials.
3. TERMINATION FOR CAUSE
Purchaser may also terminate any Purchase Order or any portion thereof for cause in the event Seller fails to comply with any of the Contract Terms. In addition, deterioration in Seller’s financial condition, absent reasonable assurances of future performance, shall allow Purchaser to terminate any Purchase Order for cause.
4. PROPRIETARY INFORMATION – CONFIDENTIALITY – ADVERTISING
Seller shall consider all information furnished by Purchaser to be confidential and shall not disclose any such information to any other person or use such information itself for any purpose other than performing its obligations under the Purchase Order. This paragraph shall apply to all drawings, specifications, or other documents prepared by Seller for Purchaser in connection with the Purchase Order. Seller shall not advertise or publish the fact the Purchaser has contracted to purchase goods from Seller, nor shall any information relating to the order be disclosed without Purchaser’s written permission. Upon request of Purchaser, Seller shall return or destroy all such information. Seller’s obligations under this paragraph survive the cancellation, termination, or completion of the Purchase Order.
5. WARRANTY
Seller warrants that all goods and services furnished to Purchaser as a result of any Purchase Order have been manufactured, distributed, and delivered in compliance with all applicable federal, state and local laws, regulations and ordinances. Seller expressly warrants that all goods or services furnished pursuant to this Purchase Order shall (i) conform to all applicable specifications, descriptions and appropriate standards and will be free from defects in material and workmanship, (ii) be merchantable, safe and appropriate for the purpose for which the good services of that kind are normally used, and (iii) be free and clear of all liens and encumbrances, good title thereto being in Seller. If Seller knows or has reason to know the particular purpose for which Purchaser 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 hereunder will conform in all respects to samples previously provided and to the most current specifications. Seller’s warranty shall run to Purchaser, its successors, assigns and customers, and users of goods sold by Purchaser pursuant to this Purchase Order. In the event of failure of Seller to correct defects in or replace nonconforming goods or services promptly, Purchaser, after reasonable notice to Seller, may make such corrections, replace such goods or services and charge Seller for the cost incurred by Purchaser in doing so.
6. PRICE
Seller warrants that the prices for the goods sold hereunder are not less favorable than those currently extended to any other customer for the same or similar goods in similar quantities after taking into effect all discounts and rebates. In the event Seller reduces its price for such goods during the term of any Purchase Order, Seller agrees to reduce its price for such goods during the term of any Purchase Order, Seller agrees to reduce the prices hereof correspondingly. Seller warrants that the prices shown on the Purchase Order shall be complete, and no increase in prices or additional charges of any type, including surcharges, shall be added without Purchaser’s express written consent. Unless otherwise stated in the Purchase Order, delivery of goods shall be DAP destination (Purchaser’s plant location) with Seller to incur freight, boxing, packing or other charges.
7. FORCE MAJEURE
Purchaser may delay receipt or acceptance of goods of services pursuant to this Purchase Order if the delay is occasioned by causes beyond its control. Seller shall hold such goods at the direction of the Purchaser and shall deliver them when the cause affecting the delay has been removed. Purchaser shall be responsible only for Seller’s direct additional costs of holding the goods delaying performance hereunder at Purchaser’s request.
8. INDEMNIFICATION
Seller shall, at Seller’s sole cost and expense, release, defend, indemnify and hold harmless Purchaser, its directors, officers, agents, and employees from, and against, any and all damages, liabilities, claims. losses, and expenses (including reasonable attorney fees) arising out of, or resulting in any way from (i) any alleged defect or non-conformity in the goods or services purchased hereunder, (ii) any act of omission of Seller, its agents, employees, or subcontractors, (iii) any recall of the goods in conjunction with the Consumer Products Safety Commission, or (iv) any claim that the goods or services infringe a patent, copyright, trademark, trade secret or other intellectual property right of a third party.
9. INSURANCE
Seller agrees to carry and to furnish certificates from its insurance carrier to Purchaser showing that it carries insurance in the following minimum limits: (a) worker’s compensation – statutory limits for states in which the work is to be performed, (b) general liability with minimum limits of $1,000,000 each occurrence, and in the aggregate (c) auto liability with minimum limits of $1,000,000 each occurrence and in the aggregate. Seller agrees to obtain and provide to Purchaser certificates reflecting vendor’s endorsements under such insurance policies naming Purchaser as an additional insured thereunder. All policies of insurance specified herein shall provide, at the request of Purchaser, that the coverage thereunder shall not be terminated without at least ten (10) days’ prior written notice to Purchaser.
10. INSPECTION/ TESTING
Payment for or receipt of the goods delivered hereunder shall not constitute acceptance thereof. Purchaser shall have the right to inspect such goods and reject any of all of such goods which are in the Purchaser’s sole judgment defective or non-conforming. Goods rejected hereunder may be returned to Seller at its expense, and, in addition to Purchaser’s other rights, Purchaser may charge Seller all expenses of unpacking, examining, repacking and reshipping such goods. In the event Purchaser received goods whose defects or non-conformity is not apparent on examination, Purchaser reserves the right to reject or revoke any acceptance of such goods and to require replacement as well as payment of damages. If any inspection or test is to be made on the premises of Seller, Seller without additional charge shall provide all reasonable facilities and assistance for the safety and convenience to the inspectors in the performance of their duties.
11. ENTIRE AGREEMENT
Except as provided in written contract executed by both Purchaser and Seller, these Contract Terms constitute the entire agreement between the parties concerning the goods and/or services specified herein. The terms and provisions hereof may not be modified in the absence of the prior express written consent of Purchaser.
12. ASSIGNMENTS AND SUBCONTRACTING
No part of this order may be assigned or subcontracted without the prior written approval of Purchaser.
13. SET – OFF
All claims for money by Seller against Purchaser shall be subject to deduction or offset by any claim for money of Purchaser against Seller arising
out of this or any other transaction.14. REMEDIES AND WAIVER
Purchaser’s remedies shall be cumulative and shall include any and all remedies allowed by law or equity. Purchaser’s failure to insist on performance of any of the terms of conditions herein or to exercise any right or privilege or Purchaser’s waiver of any breach hereunder shall not thereafter waive any other terms, conditions, or privileges, whether of the same or similar type.15. DELIVERY
Time is of the essence hereof, and if the delivery of goods or services is not completed by the date set forth in the Purchase Order, Purchasers reserves the rights and remedies, to terminate this Purchase Order and to purchase substitute goods or services elsewhere and charge Seller with any loss incurred. No partial shipments may be made without Purchaser’s written consent. Purchaser has the right to cancel any outstanding balance. Goods supplied in excess of quantities called for hereunder may be returned to Seller at its expense, and, in addition to Purchaser’s other rights, Purchaser may charge Seller all expenses of unpacking, examining, repacking and reshipping such good. Seller shall report any delays in delivery schedule immediately as they become known to the Seller. Purchaser may, upon reasonable notice to Seller, cancel schedules specified in the Purchase Order.
16. LIMITATION ON PURCHASER’S LIABILITY – STATUTE OF LIMITATIONS
IN NO EVENT WILL PURCHASER BE LIABLE TO SELLER OR ANY THIRD PARTY, IN CONTRACT, TORT OR OTHERWISE, FOR ANY LOSS OF PROFITS OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING FROM OR AS A RESULT OF THIS PURCHASE ORDER OR ANY AGREEMENT BETWEEN THE PARTIES RELATING TO THE PRODUCTS OR SERVICES SUPPLIED HEREUNDER, EVEN IF PURCHASER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Any action resulting from any breach on the part of Purchaser as to goods or services delivered hereunder must be commenced within one year after the cause of action has accrued.
17. SHIPPING PACKING AND RISK OF LOSS
All goods shall be suitably packed, marked with Purchaser’s purchase order number and shipped in accordance with shipping instructions specified herein and other wise in accordance with the requirements of common carriers so as to obtain the lowest transportation cost. No charge shall be made to Purchaser for boxing, packing, carting unless specifically itemized on the face hereof. Seller shall be liable to Purchaser for any loss or damage resulting from Seller’s failure to act so as to provide adequate protection during shipment. Unless the Purchase Order indicates that the goods are Ex Works, risk of loss or damage in transit shall be Seller’s sole responsibility and liability until conforming goods are delivered to and accepted by Purchaser. Additional expenses, with other shipping instructions, or improper description of the shipment and shipping documents shall be assumed by Seller. Purchaser’s purchase order number must be placed on all invoices and shipping papers.
18. PURCHASER PROPERTY
Any materials, parts or tools furnished by Purchaser with a Purchase Order shall be deemed to be held by Seller on consignment, shall remain the property of Purchaser and shall be returned to Purchaser on demand. Seller agrees to maintain said materials in proper working order and repair and to protect them against loss or damage. Seller further agrees to mark or tag said materials (insofar as practical) to clearly indicate Purchaser’s ownership thereof.
19. TAXES
Purchaser shall not be liable for any taxes, duties, customs or assessments in connection with the purchase and/or delivery of goods ordered
hereunder, except such as are expressly set forth on the face hereof.20. CHANGES
Purchaser may make changes in drawings, specifications, quantities, delivery schedules or methods of shipment or packaging on any item at any time. If such changes result in an increase or decrease in costs, and equitable adjustment of price and delivery schedule may be made, or Purchaser may, as its option, terminate the Purchase Order if agreement on an equitable adjustment cannot be reached. Seller must assert claims for equitable adjustment within ten (10) days of the change order. This order together with any change orders or instructions approved by Purchaser in writing shall constitute one integrated contract.
21. WAIVERS OF LIEN
Seller shall furnish all necessary lien waivers, affidavits, or other documents required to keep the property and premises of Purchaser, or Purchaser’s customers or assignees, free from all liens, claims, encumbrances or assessments arising out of the furnishing of labor, material or equipment by any party or entity in regard to the performance of this Purchase Order, as payments are made from time to time hereunder.
22. EQUAL OPPORTUNITY CLAUSE, FAIR LABOR STANDARDS ACT, AND COMPLIANCE WITH OTHER RELEVANT FEDERAL LAWS
By acceptance of this Purchase Order, Seller hereby warrants and represents to Purchaser that Seller shall comply with the Fair Labor Standards Act and all other applicable federal, state, and local laws, regulations and orders and shall, upon request, furnish to Purchaser a certificate to such effect. The Equal Opportunity Clause in Title 41; Part 60-1.4 of the Code of Federal Regulations (Paragraphs 1-7 of President’s Executive Order 11246), the Employment of the Handicapped Clause in Title 41, Part 60-741.4, of the Code of Federal Regulations, are incorporated herein by reference if and to the extent applicable.
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SCHULER CABINETRY PURCHASE ORDER TERMS AND CONDITIONS
1. ACCEPTANCE – AGREEMENT
These terms and conditions govern all Purchase Orders issued by Purchaser to the Seller indicated on the Purchase Order. Seller’s commencement of work on the goods subject to any Purchase Order or shipment of such goods, whichever occurs first, shall constitute acceptance of the Purchase Order and these Terms and Conditions. Any acceptance of a Purchase Order is limited to the express terms contained on the face of any applicable Purchase Order and these Terms and Conditions (the “Contract Terms). Unless expressly agreed to in writing by an authorized representative of Purchaser, any proposal for additional or different terms or any attempt by Seller to vary in any degree any of the terms of this offer in Seller’s acceptance is hereby objected to and rejected and these Contract Terms shall be the complete and exclusive statement between Seller and Purchaser.
2. TERMINATION FOR CONVENIENCE OF PURCHASER
Purchaser reserves the right to terminate any Purchase Order or any part thereof for its sole convenience upon giving notice to Seller. In the event of such termination, Seller shall immediately stop all work, and shall immediately cause any of its suppliers or subcontractors to cease such work. Purchaser shall be liable to Seller only for services satisfactorily performed or conforming goods delivered prior to notice of termination. Seller shall neither be paid for any work done after receipt of the notice of termination nor for any costs incurred by Seller, Seller’s suppliers or subcontractors, including costs of raw materials.
3. TERMINATION FOR CAUSE
Purchaser may also terminate any Purchase Order or any portion thereof for cause in the event Seller fails to comply with any of the Contract Terms. In addition, deterioration in Seller’s financial condition, absent reasonable assurances of future performance, shall allow Purchaser to terminate any Purchase Order for cause.
4. PROPRIETARY INFORMATION – CONFIDENTIALITY – ADVERTISING
Seller shall consider all information furnished by Purchaser to be confidential and shall not disclose any such information to any other person or use such information itself for any purpose other than performing its obligations under the Purchase Order. This paragraph shall apply to all drawings, specifications, or other documents prepared by Seller for Purchaser in connection with the Purchase Order. Seller shall not advertise or publish the fact the Purchaser has contracted to purchase goods from Seller, nor shall any information relating to the order be disclosed without Purchaser’s written permission. Upon request of Purchaser, Seller shall return or destroy all such information. Seller’s obligations under this paragraph survive the cancellation, termination, or completion of the Purchase Order.
5. WARRANTY
Seller warrants that all goods and services furnished to Purchaser as a result of any Purchase Order have been manufactured, distributed, and delivered in compliance with all applicable federal, state and local laws, regulations and ordinances. Seller expressly warrants that all goods or services furnished pursuant to this Purchase Order shall (i) conform to all applicable specifications, descriptions and appropriate standards and will be free from defects in material and workmanship, (ii) be merchantable, safe and appropriate for the purpose for which the good services of that kind are normally used, and (iii) be free and clear of all liens and encumbrances, good title thereto being in Seller. If Seller knows or has reason to know the particular purpose for which Purchaser 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 hereunder will conform in all respects to samples previously provided and to the most current specifications. Seller’s warranty shall run to Purchaser, its successors, assigns and customers, and users of goods sold by Purchaser pursuant to this Purchase Order. In the event of failure of Seller to correct defects in or replace nonconforming goods or services promptly, Purchaser, after reasonable notice to Seller, may make such corrections, replace such goods or services and charge Seller for the cost incurred by Purchaser in doing so.
6. PRICE
Seller warrants that the prices for the goods sold hereunder are not less favorable than those currently extended to any other customer for the same or similar goods in similar quantities after taking into effect all discounts and rebates. In the event Seller reduces its price for such goods during the term of any Purchase Order, Seller agrees to reduce its price for such goods during the term of any Purchase Order, Seller agrees to reduce the prices hereof correspondingly. Seller warrants that the prices shown on the Purchase Order shall be complete, and no increase in prices or additional charges of any type, including surcharges, shall be added without Purchaser’s express written consent. Unless otherwise stated in the Purchase Order, delivery of goods shall be DAP destination (Purchaser’s plant location) with Seller to incur freight, boxing, packing or other charges.
7. FORCE MAJEURE
Purchaser may delay receipt or acceptance of goods of services pursuant to this Purchase Order if the delay is occasioned by causes beyond its control. Seller shall hold such goods at the direction of the Purchaser and shall deliver them when the cause affecting the delay has been removed. Purchaser shall be responsible only for Seller’s direct additional costs of holding the goods delaying performance hereunder at Purchaser’s request.
8. INDEMNIFICATION
Seller shall, at Seller’s sole cost and expense, release, defend, indemnify and hold harmless Purchaser, its directors, officers, agents, and employees from, and against, any and all damages, liabilities, claims. losses, and expenses (including reasonable attorney fees) arising out of, or resulting in any way from (i) any alleged defect or non-conformity in the goods or services purchased hereunder, (ii) any act of omission of Seller, its agents, employees, or subcontractors, (iii) any recall of the goods in conjunction with the Consumer Products Safety Commission, or (iv) any claim that the goods or services infringe a patent, copyright, trademark, trade secret or other intellectual property right of a third party.
9. INSURANCE
Seller agrees to carry and to furnish certificates from its insurance carrier to Purchaser showing that it carries insurance in the following minimum limits: (a) worker’s compensation – statutory limits for states in which the work is to be performed, (b) general liability with minimum limits of $1,000,000 each occurrence, and in the aggregate (c) auto liability with minimum limits of $1,000,000 each occurrence and in the aggregate. Seller agrees to obtain and provide to Purchaser certificates reflecting vendor’s endorsements under such insurance policies naming Purchaser as an additional insured thereunder. All policies of insurance specified herein shall provide, at the request of Purchaser, that the coverage thereunder shall not be terminated without at least ten (10) days’ prior written notice to Purchaser.
10. INSPECTION/ TESTING
Payment for or receipt of the goods delivered hereunder shall not constitute acceptance thereof. Purchaser shall have the right to inspect such goods and reject any of all of such goods which are in the Purchaser’s sole judgment defective or non-conforming. Goods rejected hereunder may be returned to Seller at its expense, and, in addition to Purchaser’s other rights, Purchaser may charge Seller all expenses of unpacking, examining, repacking and reshipping such goods. In the event Purchaser received goods whose defects or non-conformity is not apparent on examination, Purchaser reserves the right to reject or revoke any acceptance of such goods and to require replacement as well as payment of damages. If any inspection or test is to be made on the premises of Seller, Seller without additional charge shall provide all reasonable facilities and assistance for the safety and convenience to the inspectors in the performance of their duties.
11. ENTIRE AGREEMENT
Except as provided in written contract executed by both Purchaser and Seller, these Contract Terms constitute the entire agreement between the parties concerning the goods and/or services specified herein. The terms and provisions hereof may not be modified in the absence of the prior express written consent of Purchaser.
12. ASSIGNMENTS AND SUBCONTRACTING
No part of this order may be assigned or subcontracted without the prior written approval of Purchaser.
13. SET – OFF
All claims for money by Seller against Purchaser shall be subject to deduction or offset by any claim for money of Purchaser against Seller arising
out of this or any other transaction.14. REMEDIES AND WAIVER
Purchaser’s remedies shall be cumulative and shall include any and all remedies allowed by law or equity. Purchaser’s failure to insist on performance of any of the terms of conditions herein or to exercise any right or privilege or Purchaser’s waiver of any breach hereunder shall not thereafter waive any other terms, conditions, or privileges, whether of the same or similar type.15. DELIVERY
Time is of the essence hereof, and if the delivery of goods or services is not completed by the date set forth in the Purchase Order, Purchasers reserves the rights and remedies, to terminate this Purchase Order and to purchase substitute goods or services elsewhere and charge Seller with any loss incurred. No partial shipments may be made without Purchaser’s written consent. Purchaser has the right to cancel any outstanding balance. Goods supplied in excess of quantities called for hereunder may be returned to Seller at its expense, and, in addition to Purchaser’s other rights, Purchaser may charge Seller all expenses of unpacking, examining, repacking and reshipping such good. Seller shall report any delays in delivery schedule immediately as they become known to the Seller. Purchaser may, upon reasonable notice to Seller, cancel schedules specified in the Purchase Order.
16. LIMITATION ON PURCHASER’S LIABILITY – STATUTE OF LIMITATIONS
IN NO EVENT WILL PURCHASER BE LIABLE TO SELLER OR ANY THIRD PARTY, IN CONTRACT, TORT OR OTHERWISE, FOR ANY LOSS OF PROFITS OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING FROM OR AS A RESULT OF THIS PURCHASE ORDER OR ANY AGREEMENT BETWEEN THE PARTIES RELATING TO THE PRODUCTS OR SERVICES SUPPLIED HEREUNDER, EVEN IF PURCHASER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Any action resulting from any breach on the part of Purchaser as to goods or services delivered hereunder must be commenced within one year after the cause of action has accrued.
17. SHIPPING PACKING AND RISK OF LOSS
All goods shall be suitably packed, marked with Purchaser’s purchase order number and shipped in accordance with shipping instructions specified herein and other wise in accordance with the requirements of common carriers so as to obtain the lowest transportation cost. No charge shall be made to Purchaser for boxing, packing, carting unless specifically itemized on the face hereof. Seller shall be liable to Purchaser for any loss or damage resulting from Seller’s failure to act so as to provide adequate protection during shipment. Unless the Purchase Order indicates that the goods are Ex Works, risk of loss or damage in transit shall be Seller’s sole responsibility and liability until conforming goods are delivered to and accepted by Purchaser. Additional expenses, with other shipping instructions, or improper description of the shipment and shipping documents shall be assumed by Seller. Purchaser’s purchase order number must be placed on all invoices and shipping papers.
18. PURCHASER PROPERTY
Any materials, parts or tools furnished by Purchaser with a Purchase Order shall be deemed to be held by Seller on consignment, shall remain the property of Purchaser and shall be returned to Purchaser on demand. Seller agrees to maintain said materials in proper working order and repair and to protect them against loss or damage. Seller further agrees to mark or tag said materials (insofar as practical) to clearly indicate Purchaser’s ownership thereof.
19. TAXES
Purchaser shall not be liable for any taxes, duties, customs or assessments in connection with the purchase and/or delivery of goods ordered
hereunder, except such as are expressly set forth on the face hereof.20. CHANGES
Purchaser may make changes in drawings, specifications, quantities, delivery schedules or methods of shipment or packaging on any item at any time. If such changes result in an increase or decrease in costs, and equitable adjustment of price and delivery schedule may be made, or Purchaser may, as its option, terminate the Purchase Order if agreement on an equitable adjustment cannot be reached. Seller must assert claims for equitable adjustment within ten (10) days of the change order. This order together with any change orders or instructions approved by Purchaser in writing shall constitute one integrated contract.
21. WAIVERS OF LIEN
Seller shall furnish all necessary lien waivers, affidavits, or other documents required to keep the property and premises of Purchaser, or Purchaser’s customers or assignees, free from all liens, claims, encumbrances or assessments arising out of the furnishing of labor, material or equipment by any party or entity in regard to the performance of this Purchase Order, as payments are made from time to time hereunder.
22. EQUAL OPPORTUNITY CLAUSE, FAIR LABOR STANDARDS ACT, AND COMPLIANCE WITH OTHER RELEVANT FEDERAL LAWS
By acceptance of this Purchase Order, Seller hereby warrants and represents to Purchaser that Seller shall comply with the Fair Labor Standards Act and all other applicable federal, state, and local laws, regulations and orders and shall, upon request, furnish to Purchaser a certificate to such effect. The Equal Opportunity Clause in Title 41; Part 60-1.4 of the Code of Federal Regulations (Paragraphs 1-7 of President’s Executive Order 11246), the Employment of the Handicapped Clause in Title 41, Part 60-741.4, of the Code of Federal Regulations, are incorporated herein by reference if and to the extent applicable.
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MEDALLION AT MENARDS PURCHASE ORDER TERMS AND CONDITIONS
1. ACCEPTANCE – AGREEMENT
These terms and conditions govern all Purchase Orders issued by Purchaser to the Seller indicated on the Purchase Order. Seller’s commencement of work on the goods subject to any Purchase Order or shipment of such goods, whichever occurs first, shall constitute acceptance of the Purchase Order and these Terms and Conditions. Any acceptance of a Purchase Order is limited to the express terms contained on the face of any applicable Purchase Order and these Terms and Conditions (the “Contract Terms). Unless expressly agreed to in writing by an authorized representative of Purchaser, any proposal for additional or different terms or any attempt by Seller to vary in any degree any of the terms of this offer in Seller’s acceptance is hereby objected to and rejected and these Contract Terms shall be the complete and exclusive statement between Seller and Purchaser.
2. TERMINATION FOR CONVENIENCE OF PURCHASER
Purchaser reserves the right to terminate any Purchase Order or any part thereof for its sole convenience upon giving notice to Seller. In the event of such termination, Seller shall immediately stop all work, and shall immediately cause any of its suppliers or subcontractors to cease such work. Purchaser shall be liable to Seller only for services satisfactorily performed or conforming goods delivered prior to notice of termination. Seller shall neither be paid for any work done after receipt of the notice of termination nor for any costs incurred by Seller, Seller’s suppliers or subcontractors, including costs of raw materials.
3. TERMINATION FOR CAUSE
Purchaser may also terminate any Purchase Order or any portion thereof for cause in the event Seller fails to comply with any of the Contract Terms. In addition, deterioration in Seller’s financial condition, absent reasonable assurances of future performance, shall allow Purchaser to terminate any Purchase Order for cause.
4. PROPRIETARY INFORMATION – CONFIDENTIALITY – ADVERTISING
Seller shall consider all information furnished by Purchaser to be confidential and shall not disclose any such information to any other person or use such information itself for any purpose other than performing its obligations under the Purchase Order. This paragraph shall apply to all drawings, specifications, or other documents prepared by Seller for Purchaser in connection with the Purchase Order. Seller shall not advertise or publish the fact the Purchaser has contracted to purchase goods from Seller, nor shall any information relating to the order be disclosed without Purchaser’s written permission. Upon request of Purchaser, Seller shall return or destroy all such information. Seller’s obligations under this paragraph survive the cancellation, termination, or completion of the Purchase Order.
5. WARRANTY
Seller warrants that all goods and services furnished to Purchaser as a result of any Purchase Order have been manufactured, distributed, and delivered in compliance with all applicable federal, state and local laws, regulations and ordinances. Seller expressly warrants that all goods or services furnished pursuant to this Purchase Order shall (i) conform to all applicable specifications, descriptions and appropriate standards and will be free from defects in material and workmanship, (ii) be merchantable, safe and appropriate for the purpose for which the good services of that kind are normally used, and (iii) be free and clear of all liens and encumbrances, good title thereto being in Seller. If Seller knows or has reason to know the particular purpose for which Purchaser 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 hereunder will conform in all respects to samples previously provided and to the most current specifications. Seller’s warranty shall run to Purchaser, its successors, assigns and customers, and users of goods sold by Purchaser pursuant to this Purchase Order. In the event of failure of Seller to correct defects in or replace nonconforming goods or services promptly, Purchaser, after reasonable notice to Seller, may make such corrections, replace such goods or services and charge Seller for the cost incurred by Purchaser in doing so.
6. PRICE
Seller warrants that the prices for the goods sold hereunder are not less favorable than those currently extended to any other customer for the same or similar goods in similar quantities after taking into effect all discounts and rebates. In the event Seller reduces its price for such goods during the term of any Purchase Order, Seller agrees to reduce its price for such goods during the term of any Purchase Order, Seller agrees to reduce the prices hereof correspondingly. Seller warrants that the prices shown on the Purchase Order shall be complete, and no increase in prices or additional charges of any type, including surcharges, shall be added without Purchaser’s express written consent. Unless otherwise stated in the Purchase Order, delivery of goods shall be DAP destination (Purchaser’s plant location) with Seller to incur freight, boxing, packing or other charges.
7. FORCE MAJEURE
Purchaser may delay receipt or acceptance of goods of services pursuant to this Purchase Order if the delay is occasioned by causes beyond its control. Seller shall hold such goods at the direction of the Purchaser and shall deliver them when the cause affecting the delay has been removed. Purchaser shall be responsible only for Seller’s direct additional costs of holding the goods delaying performance hereunder at Purchaser’s request.
8. INDEMNIFICATION
Seller shall, at Seller’s sole cost and expense, release, defend, indemnify and hold harmless Purchaser, its directors, officers, agents, and employees from, and against, any and all damages, liabilities, claims. losses, and expenses (including reasonable attorney fees) arising out of, or resulting in any way from (i) any alleged defect or non-conformity in the goods or services purchased hereunder, (ii) any act of omission of Seller, its agents, employees, or subcontractors, (iii) any recall of the goods in conjunction with the Consumer Products Safety Commission, or (iv) any claim that the goods or services infringe a patent, copyright, trademark, trade secret or other intellectual property right of a third party.
9. INSURANCE
Seller agrees to carry and to furnish certificates from its insurance carrier to Purchaser showing that it carries insurance in the following minimum limits: (a) worker’s compensation – statutory limits for states in which the work is to be performed, (b) general liability with minimum limits of $1,000,000 each occurrence, and in the aggregate (c) auto liability with minimum limits of $1,000,000 each occurrence and in the aggregate. Seller agrees to obtain and provide to Purchaser certificates reflecting vendor’s endorsements under such insurance policies naming Purchaser as an additional insured thereunder. All policies of insurance specified herein shall provide, at the request of Purchaser, that the coverage thereunder shall not be terminated without at least ten (10) days’ prior written notice to Purchaser.
10. INSPECTION/ TESTING
Payment for or receipt of the goods delivered hereunder shall not constitute acceptance thereof. Purchaser shall have the right to inspect such goods and reject any of all of such goods which are in the Purchaser’s sole judgment defective or non-conforming. Goods rejected hereunder may be returned to Seller at its expense, and, in addition to Purchaser’s other rights, Purchaser may charge Seller all expenses of unpacking, examining, repacking and reshipping such goods. In the event Purchaser received goods whose defects or non-conformity is not apparent on examination, Purchaser reserves the right to reject or revoke any acceptance of such goods and to require replacement as well as payment of damages. If any inspection or test is to be made on the premises of Seller, Seller without additional charge shall provide all reasonable facilities and assistance for the safety and convenience to the inspectors in the performance of their duties.
11. ENTIRE AGREEMENT
Except as provided in written contract executed by both Purchaser and Seller, these Contract Terms constitute the entire agreement between the parties concerning the goods and/or services specified herein. The terms and provisions hereof may not be modified in the absence of the prior express written consent of Purchaser.
12. ASSIGNMENTS AND SUBCONTRACTING
No part of this order may be assigned or subcontracted without the prior written approval of Purchaser.
13. SET – OFF
All claims for money by Seller against Purchaser shall be subject to deduction or offset by any claim for money of Purchaser against Seller arising
out of this or any other transaction.14. REMEDIES AND WAIVER
Purchaser’s remedies shall be cumulative and shall include any and all remedies allowed by law or equity. Purchaser’s failure to insist on performance of any of the terms of conditions herein or to exercise any right or privilege or Purchaser’s waiver of any breach hereunder shall not thereafter waive any other terms, conditions, or privileges, whether of the same or similar type.15. DELIVERY
Time is of the essence hereof, and if the delivery of goods or services is not completed by the date set forth in the Purchase Order, Purchasers reserves the rights and remedies, to terminate this Purchase Order and to purchase substitute goods or services elsewhere and charge Seller with any loss incurred. No partial shipments may be made without Purchaser’s written consent. Purchaser has the right to cancel any outstanding balance. Goods supplied in excess of quantities called for hereunder may be returned to Seller at its expense, and, in addition to Purchaser’s other rights, Purchaser may charge Seller all expenses of unpacking, examining, repacking and reshipping such good. Seller shall report any delays in delivery schedule immediately as they become known to the Seller. Purchaser may, upon reasonable notice to Seller, cancel schedules specified in the Purchase Order.
16. LIMITATION ON PURCHASER’S LIABILITY – STATUTE OF LIMITATIONS
IN NO EVENT WILL PURCHASER BE LIABLE TO SELLER OR ANY THIRD PARTY, IN CONTRACT, TORT OR OTHERWISE, FOR ANY LOSS OF PROFITS OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING FROM OR AS A RESULT OF THIS PURCHASE ORDER OR ANY AGREEMENT BETWEEN THE PARTIES RELATING TO THE PRODUCTS OR SERVICES SUPPLIED HEREUNDER, EVEN IF PURCHASER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Any action resulting from any breach on the part of Purchaser as to goods or services delivered hereunder must be commenced within one year after the cause of action has accrued.
17. SHIPPING PACKING AND RISK OF LOSS
All goods shall be suitably packed, marked with Purchaser’s purchase order number and shipped in accordance with shipping instructions specified herein and other wise in accordance with the requirements of common carriers so as to obtain the lowest transportation cost. No charge shall be made to Purchaser for boxing, packing, carting unless specifically itemized on the face hereof. Seller shall be liable to Purchaser for any loss or damage resulting from Seller’s failure to act so as to provide adequate protection during shipment. Unless the Purchase Order indicates that the goods are Ex Works, risk of loss or damage in transit shall be Seller’s sole responsibility and liability until conforming goods are delivered to and accepted by Purchaser. Additional expenses, with other shipping instructions, or improper description of the shipment and shipping documents shall be assumed by Seller. Purchaser’s purchase order number must be placed on all invoices and shipping papers.
18. PURCHASER PROPERTY
Any materials, parts or tools furnished by Purchaser with a Purchase Order shall be deemed to be held by Seller on consignment, shall remain the property of Purchaser and shall be returned to Purchaser on demand. Seller agrees to maintain said materials in proper working order and repair and to protect them against loss or damage. Seller further agrees to mark or tag said materials (insofar as practical) to clearly indicate Purchaser’s ownership thereof.
19. TAXES
Purchaser shall not be liable for any taxes, duties, customs or assessments in connection with the purchase and/or delivery of goods ordered
hereunder, except such as are expressly set forth on the face hereof.20. CHANGES
Purchaser may make changes in drawings, specifications, quantities, delivery schedules or methods of shipment or packaging on any item at any time. If such changes result in an increase or decrease in costs, and equitable adjustment of price and delivery schedule may be made, or Purchaser may, as its option, terminate the Purchase Order if agreement on an equitable adjustment cannot be reached. Seller must assert claims for equitable adjustment within ten (10) days of the change order. This order together with any change orders or instructions approved by Purchaser in writing shall constitute one integrated contract.
21. WAIVERS OF LIEN
Seller shall furnish all necessary lien waivers, affidavits, or other documents required to keep the property and premises of Purchaser, or Purchaser’s customers or assignees, free from all liens, claims, encumbrances or assessments arising out of the furnishing of labor, material or equipment by any party or entity in regard to the performance of this Purchase Order, as payments are made from time to time hereunder.
22. EQUAL OPPORTUNITY CLAUSE, FAIR LABOR STANDARDS ACT, AND COMPLIANCE WITH OTHER RELEVANT FEDERAL LAWS
By acceptance of this Purchase Order, Seller hereby warrants and represents to Purchaser that Seller shall comply with the Fair Labor Standards Act and all other applicable federal, state, and local laws, regulations and orders and shall, upon request, furnish to Purchaser a certificate to such effect. The Equal Opportunity Clause in Title 41; Part 60-1.4 of the Code of Federal Regulations (Paragraphs 1-7 of President’s Executive Order 11246), the Employment of the Handicapped Clause in Title 41, Part 60-741.4, of the Code of Federal Regulations, are incorporated herein by reference if and to the extent applicable.
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MASTERCRAFT CABINETS PURCHASE ORDER TERMS AND CONDITIONS
1. ACCEPTANCE – AGREEMENT
These terms and conditions govern all Purchase Orders issued by Purchaser to the Seller indicated on the Purchase Order. Seller’s commencement of work on the goods subject to any Purchase Order or shipment of such goods, whichever occurs first, shall constitute acceptance of the Purchase Order and these Terms and Conditions. Any acceptance of a Purchase Order is limited to the express terms contained on the face of any applicable Purchase Order and these Terms and Conditions (the “Contract Terms). Unless expressly agreed to in writing by an authorized representative of Purchaser, any proposal for additional or different terms or any attempt by Seller to vary in any degree any of the terms of this offer in Seller’s acceptance is hereby objected to and rejected and these Contract Terms shall be the complete and exclusive statement between Seller and Purchaser.
2. TERMINATION FOR CONVENIENCE OF PURCHASER
Purchaser reserves the right to terminate any Purchase Order or any part thereof for its sole convenience upon giving notice to Seller. In the event of such termination, Seller shall immediately stop all work, and shall immediately cause any of its suppliers or subcontractors to cease such work. Purchaser shall be liable to Seller only for services satisfactorily performed or conforming goods delivered prior to notice of termination. Seller shall neither be paid for any work done after receipt of the notice of termination nor for any costs incurred by Seller, Seller’s suppliers or subcontractors, including costs of raw materials.
3. TERMINATION FOR CAUSE
Purchaser may also terminate any Purchase Order or any portion thereof for cause in the event Seller fails to comply with any of the Contract Terms. In addition, deterioration in Seller’s financial condition, absent reasonable assurances of future performance, shall allow Purchaser to terminate any Purchase Order for cause.
4. PROPRIETARY INFORMATION – CONFIDENTIALITY – ADVERTISING
Seller shall consider all information furnished by Purchaser to be confidential and shall not disclose any such information to any other person or use such information itself for any purpose other than performing its obligations under the Purchase Order. This paragraph shall apply to all drawings, specifications, or other documents prepared by Seller for Purchaser in connection with the Purchase Order. Seller shall not advertise or publish the fact the Purchaser has contracted to purchase goods from Seller, nor shall any information relating to the order be disclosed without Purchaser’s written permission. Upon request of Purchaser, Seller shall return or destroy all such information. Seller’s obligations under this paragraph survive the cancellation, termination, or completion of the Purchase Order.
5. WARRANTY
Seller warrants that all goods and services furnished to Purchaser as a result of any Purchase Order have been manufactured, distributed, and delivered in compliance with all applicable federal, state and local laws, regulations and ordinances. Seller expressly warrants that all goods or services furnished pursuant to this Purchase Order shall (i) conform to all applicable specifications, descriptions and appropriate standards and will be free from defects in material and workmanship, (ii) be merchantable, safe and appropriate for the purpose for which the good services of that kind are normally used, and (iii) be free and clear of all liens and encumbrances, good title thereto being in Seller. If Seller knows or has reason to know the particular purpose for which Purchaser 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 hereunder will conform in all respects to samples previously provided and to the most current specifications. Seller’s warranty shall run to Purchaser, its successors, assigns and customers, and users of goods sold by Purchaser pursuant to this Purchase Order. In the event of failure of Seller to correct defects in or replace nonconforming goods or services promptly, Purchaser, after reasonable notice to Seller, may make such corrections, replace such goods or services and charge Seller for the cost incurred by Purchaser in doing so.
6. PRICE
Seller warrants that the prices for the goods sold hereunder are not less favorable than those currently extended to any other customer for the same or similar goods in similar quantities after taking into effect all discounts and rebates. In the event Seller reduces its price for such goods during the term of any Purchase Order, Seller agrees to reduce its price for such goods during the term of any Purchase Order, Seller agrees to reduce the prices hereof correspondingly. Seller warrants that the prices shown on the Purchase Order shall be complete, and no increase in prices or additional charges of any type, including surcharges, shall be added without Purchaser’s express written consent. Unless otherwise stated in the Purchase Order, delivery of goods shall be DAP destination (Purchaser’s plant location) with Seller to incur freight, boxing, packing or other charges.
7. FORCE MAJEURE
Purchaser may delay receipt or acceptance of goods of services pursuant to this Purchase Order if the delay is occasioned by causes beyond its control. Seller shall hold such goods at the direction of the Purchaser and shall deliver them when the cause affecting the delay has been removed. Purchaser shall be responsible only for Seller’s direct additional costs of holding the goods delaying performance hereunder at Purchaser’s request.
8. INDEMNIFICATION
Seller shall, at Seller’s sole cost and expense, release, defend, indemnify and hold harmless Purchaser, its directors, officers, agents, and employees from, and against, any and all damages, liabilities, claims. losses, and expenses (including reasonable attorney fees) arising out of, or resulting in any way from (i) any alleged defect or non-conformity in the goods or services purchased hereunder, (ii) any act of omission of Seller, its agents, employees, or subcontractors, (iii) any recall of the goods in conjunction with the Consumer Products Safety Commission, or (iv) any claim that the goods or services infringe a patent, copyright, trademark, trade secret or other intellectual property right of a third party.
9. INSURANCE
Seller agrees to carry and to furnish certificates from its insurance carrier to Purchaser showing that it carries insurance in the following minimum limits: (a) worker’s compensation – statutory limits for states in which the work is to be performed, (b) general liability with minimum limits of $1,000,000 each occurrence, and in the aggregate (c) auto liability with minimum limits of $1,000,000 each occurrence and in the aggregate. Seller agrees to obtain and provide to Purchaser certificates reflecting vendor’s endorsements under such insurance policies naming Purchaser as an additional insured thereunder. All policies of insurance specified herein shall provide, at the request of Purchaser, that the coverage thereunder shall not be terminated without at least ten (10) days’ prior written notice to Purchaser.
10. INSPECTION/ TESTING
Payment for or receipt of the goods delivered hereunder shall not constitute acceptance thereof. Purchaser shall have the right to inspect such goods and reject any of all of such goods which are in the Purchaser’s sole judgment defective or non-conforming. Goods rejected hereunder may be returned to Seller at its expense, and, in addition to Purchaser’s other rights, Purchaser may charge Seller all expenses of unpacking, examining, repacking and reshipping such goods. In the event Purchaser received goods whose defects or non-conformity is not apparent on examination, Purchaser reserves the right to reject or revoke any acceptance of such goods and to require replacement as well as payment of damages. If any inspection or test is to be made on the premises of Seller, Seller without additional charge shall provide all reasonable facilities and assistance for the safety and convenience to the inspectors in the performance of their duties.
11. ENTIRE AGREEMENT
Except as provided in written contract executed by both Purchaser and Seller, these Contract Terms constitute the entire agreement between the parties concerning the goods and/or services specified herein. The terms and provisions hereof may not be modified in the absence of the prior express written consent of Purchaser.
12. ASSIGNMENTS AND SUBCONTRACTING
No part of this order may be assigned or subcontracted without the prior written approval of Purchaser.
13. SET – OFF
All claims for money by Seller against Purchaser shall be subject to deduction or offset by any claim for money of Purchaser against Seller arising
out of this or any other transaction.14. REMEDIES AND WAIVER
Purchaser’s remedies shall be cumulative and shall include any and all remedies allowed by law or equity. Purchaser’s failure to insist on performance of any of the terms of conditions herein or to exercise any right or privilege or Purchaser’s waiver of any breach hereunder shall not thereafter waive any other terms, conditions, or privileges, whether of the same or similar type.15. DELIVERY
Time is of the essence hereof, and if the delivery of goods or services is not completed by the date set forth in the Purchase Order, Purchasers reserves the rights and remedies, to terminate this Purchase Order and to purchase substitute goods or services elsewhere and charge Seller with any loss incurred. No partial shipments may be made without Purchaser’s written consent. Purchaser has the right to cancel any outstanding balance. Goods supplied in excess of quantities called for hereunder may be returned to Seller at its expense, and, in addition to Purchaser’s other rights, Purchaser may charge Seller all expenses of unpacking, examining, repacking and reshipping such good. Seller shall report any delays in delivery schedule immediately as they become known to the Seller. Purchaser may, upon reasonable notice to Seller, cancel schedules specified in the Purchase Order.
16. LIMITATION ON PURCHASER’S LIABILITY – STATUTE OF LIMITATIONS
IN NO EVENT WILL PURCHASER BE LIABLE TO SELLER OR ANY THIRD PARTY, IN CONTRACT, TORT OR OTHERWISE, FOR ANY LOSS OF PROFITS OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING FROM OR AS A RESULT OF THIS PURCHASE ORDER OR ANY AGREEMENT BETWEEN THE PARTIES RELATING TO THE PRODUCTS OR SERVICES SUPPLIED HEREUNDER, EVEN IF PURCHASER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Any action resulting from any breach on the part of Purchaser as to goods or services delivered hereunder must be commenced within one year after the cause of action has accrued.
17. SHIPPING PACKING AND RISK OF LOSS
All goods shall be suitably packed, marked with Purchaser’s purchase order number and shipped in accordance with shipping instructions specified herein and other wise in accordance with the requirements of common carriers so as to obtain the lowest transportation cost. No charge shall be made to Purchaser for boxing, packing, carting unless specifically itemized on the face hereof. Seller shall be liable to Purchaser for any loss or damage resulting from Seller’s failure to act so as to provide adequate protection during shipment. Unless the Purchase Order indicates that the goods are Ex Works, risk of loss or damage in transit shall be Seller’s sole responsibility and liability until conforming goods are delivered to and accepted by Purchaser. Additional expenses, with other shipping instructions, or improper description of the shipment and shipping documents shall be assumed by Seller. Purchaser’s purchase order number must be placed on all invoices and shipping papers.
18. PURCHASER PROPERTY
Any materials, parts or tools furnished by Purchaser with a Purchase Order shall be deemed to be held by Seller on consignment, shall remain the property of Purchaser and shall be returned to Purchaser on demand. Seller agrees to maintain said materials in proper working order and repair and to protect them against loss or damage. Seller further agrees to mark or tag said materials (insofar as practical) to clearly indicate Purchaser’s ownership thereof.
19. TAXES
Purchaser shall not be liable for any taxes, duties, customs or assessments in connection with the purchase and/or delivery of goods ordered
hereunder, except such as are expressly set forth on the face hereof.20. CHANGES
Purchaser may make changes in drawings, specifications, quantities, delivery schedules or methods of shipment or packaging on any item at any time. If such changes result in an increase or decrease in costs, and equitable adjustment of price and delivery schedule may be made, or Purchaser may, as its option, terminate the Purchase Order if agreement on an equitable adjustment cannot be reached. Seller must assert claims for equitable adjustment within ten (10) days of the change order. This order together with any change orders or instructions approved by Purchaser in writing shall constitute one integrated contract.
21. WAIVERS OF LIEN
Seller shall furnish all necessary lien waivers, affidavits, or other documents required to keep the property and premises of Purchaser, or Purchaser’s customers or assignees, free from all liens, claims, encumbrances or assessments arising out of the furnishing of labor, material or equipment by any party or entity in regard to the performance of this Purchase Order, as payments are made from time to time hereunder.
22. EQUAL OPPORTUNITY CLAUSE, FAIR LABOR STANDARDS ACT, AND COMPLIANCE WITH OTHER RELEVANT FEDERAL LAWS
By acceptance of this Purchase Order, Seller hereby warrants and represents to Purchaser that Seller shall comply with the Fair Labor Standards Act and all other applicable federal, state, and local laws, regulations and orders and shall, upon request, furnish to Purchaser a certificate to such effect. The Equal Opportunity Clause in Title 41; Part 60-1.4 of the Code of Federal Regulations (Paragraphs 1-7 of President’s Executive Order 11246), the Employment of the Handicapped Clause in Title 41, Part 60-741.4, of the Code of Federal Regulations, are incorporated herein by reference if and to the extent applicable.
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AMERICAN CABINETRY COLLECTION PURCHASE ORDER TERMS AND CONDITIONS
1. ACCEPTANCE – AGREEMENT
These terms and conditions govern all Purchase Orders issued by Purchaser to the Seller indicated on the Purchase Order. Seller’s commencement of work on the goods subject to any Purchase Order or shipment of such goods, whichever occurs first, shall constitute acceptance of the Purchase Order and these Terms and Conditions. Any acceptance of a Purchase Order is limited to the express terms contained on the face of any applicable Purchase Order and these Terms and Conditions (the “Contract Terms). Unless expressly agreed to in writing by an authorized representative of Purchaser, any proposal for additional or different terms or any attempt by Seller to vary in any degree any of the terms of this offer in Seller’s acceptance is hereby objected to and rejected and these Contract Terms shall be the complete and exclusive statement between Seller and Purchaser.
2. TERMINATION FOR CONVENIENCE OF PURCHASER
Purchaser reserves the right to terminate any Purchase Order or any part thereof for its sole convenience upon giving notice to Seller. In the event of such termination, Seller shall immediately stop all work, and shall immediately cause any of its suppliers or subcontractors to cease such work. Purchaser shall be liable to Seller only for services satisfactorily performed or conforming goods delivered prior to notice of termination. Seller shall neither be paid for any work done after receipt of the notice of termination nor for any costs incurred by Seller, Seller’s suppliers or subcontractors, including costs of raw materials.
3. TERMINATION FOR CAUSE
Purchaser may also terminate any Purchase Order or any portion thereof for cause in the event Seller fails to comply with any of the Contract Terms. In addition, deterioration in Seller’s financial condition, absent reasonable assurances of future performance, shall allow Purchaser to terminate any Purchase Order for cause.
4. PROPRIETARY INFORMATION – CONFIDENTIALITY – ADVERTISING
Seller shall consider all information furnished by Purchaser to be confidential and shall not disclose any such information to any other person or use such information itself for any purpose other than performing its obligations under the Purchase Order. This paragraph shall apply to all drawings, specifications, or other documents prepared by Seller for Purchaser in connection with the Purchase Order. Seller shall not advertise or publish the fact the Purchaser has contracted to purchase goods from Seller, nor shall any information relating to the order be disclosed without Purchaser’s written permission. Upon request of Purchaser, Seller shall return or destroy all such information. Seller’s obligations under this paragraph survive the cancellation, termination, or completion of the Purchase Order.
5. WARRANTY
Seller warrants that all goods and services furnished to Purchaser as a result of any Purchase Order have been manufactured, distributed, and delivered in compliance with all applicable federal, state and local laws, regulations and ordinances. Seller expressly warrants that all goods or services furnished pursuant to this Purchase Order shall (i) conform to all applicable specifications, descriptions and appropriate standards and will be free from defects in material and workmanship, (ii) be merchantable, safe and appropriate for the purpose for which the good services of that kind are normally used, and (iii) be free and clear of all liens and encumbrances, good title thereto being in Seller. If Seller knows or has reason to know the particular purpose for which Purchaser 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 hereunder will conform in all respects to samples previously provided and to the most current specifications. Seller’s warranty shall run to Purchaser, its successors, assigns and customers, and users of goods sold by Purchaser pursuant to this Purchase Order. In the event of failure of Seller to correct defects in or replace nonconforming goods or services promptly, Purchaser, after reasonable notice to Seller, may make such corrections, replace such goods or services and charge Seller for the cost incurred by Purchaser in doing so.
6. PRICE
Seller warrants that the prices for the goods sold hereunder are not less favorable than those currently extended to any other customer for the same or similar goods in similar quantities after taking into effect all discounts and rebates. In the event Seller reduces its price for such goods during the term of any Purchase Order, Seller agrees to reduce its price for such goods during the term of any Purchase Order, Seller agrees to reduce the prices hereof correspondingly. Seller warrants that the prices shown on the Purchase Order shall be complete, and no increase in prices or additional charges of any type, including surcharges, shall be added without Purchaser’s express written consent. Unless otherwise stated in the Purchase Order, delivery of goods shall be DAP destination (Purchaser’s plant location) with Seller to incur freight, boxing, packing or other charges.
7. FORCE MAJEURE
Purchaser may delay receipt or acceptance of goods of services pursuant to this Purchase Order if the delay is occasioned by causes beyond its control. Seller shall hold such goods at the direction of the Purchaser and shall deliver them when the cause affecting the delay has been removed. Purchaser shall be responsible only for Seller’s direct additional costs of holding the goods delaying performance hereunder at Purchaser’s request.
8. INDEMNIFICATION
Seller shall, at Seller’s sole cost and expense, release, defend, indemnify and hold harmless Purchaser, its directors, officers, agents, and employees from, and against, any and all damages, liabilities, claims. losses, and expenses (including reasonable attorney fees) arising out of, or resulting in any way from (i) any alleged defect or non-conformity in the goods or services purchased hereunder, (ii) any act of omission of Seller, its agents, employees, or subcontractors, (iii) any recall of the goods in conjunction with the Consumer Products Safety Commission, or (iv) any claim that the goods or services infringe a patent, copyright, trademark, trade secret or other intellectual property right of a third party.
9. INSURANCE
Seller agrees to carry and to furnish certificates from its insurance carrier to Purchaser showing that it carries insurance in the following minimum limits: (a) worker’s compensation – statutory limits for states in which the work is to be performed, (b) general liability with minimum limits of $1,000,000 each occurrence, and in the aggregate (c) auto liability with minimum limits of $1,000,000 each occurrence and in the aggregate. Seller agrees to obtain and provide to Purchaser certificates reflecting vendor’s endorsements under such insurance policies naming Purchaser as an additional insured thereunder. All policies of insurance specified herein shall provide, at the request of Purchaser, that the coverage thereunder shall not be terminated without at least ten (10) days’ prior written notice to Purchaser.
10. INSPECTION/ TESTING
Payment for or receipt of the goods delivered hereunder shall not constitute acceptance thereof. Purchaser shall have the right to inspect such goods and reject any of all of such goods which are in the Purchaser’s sole judgment defective or non-conforming. Goods rejected hereunder may be returned to Seller at its expense, and, in addition to Purchaser’s other rights, Purchaser may charge Seller all expenses of unpacking, examining, repacking and reshipping such goods. In the event Purchaser received goods whose defects or non-conformity is not apparent on examination, Purchaser reserves the right to reject or revoke any acceptance of such goods and to require replacement as well as payment of damages. If any inspection or test is to be made on the premises of Seller, Seller without additional charge shall provide all reasonable facilities and assistance for the safety and convenience to the inspectors in the performance of their duties.
11. ENTIRE AGREEMENT
Except as provided in written contract executed by both Purchaser and Seller, these Contract Terms constitute the entire agreement between the parties concerning the goods and/or services specified herein. The terms and provisions hereof may not be modified in the absence of the prior express written consent of Purchaser.
12. ASSIGNMENTS AND SUBCONTRACTING
No part of this order may be assigned or subcontracted without the prior written approval of Purchaser.
13. SET – OFF
All claims for money by Seller against Purchaser shall be subject to deduction or offset by any claim for money of Purchaser against Seller arising
out of this or any other transaction.14. REMEDIES AND WAIVER
Purchaser’s remedies shall be cumulative and shall include any and all remedies allowed by law or equity. Purchaser’s failure to insist on performance of any of the terms of conditions herein or to exercise any right or privilege or Purchaser’s waiver of any breach hereunder shall not thereafter waive any other terms, conditions, or privileges, whether of the same or similar type.15. DELIVERY
Time is of the essence hereof, and if the delivery of goods or services is not completed by the date set forth in the Purchase Order, Purchasers reserves the rights and remedies, to terminate this Purchase Order and to purchase substitute goods or services elsewhere and charge Seller with any loss incurred. No partial shipments may be made without Purchaser’s written consent. Purchaser has the right to cancel any outstanding balance. Goods supplied in excess of quantities called for hereunder may be returned to Seller at its expense, and, in addition to Purchaser’s other rights, Purchaser may charge Seller all expenses of unpacking, examining, repacking and reshipping such good. Seller shall report any delays in delivery schedule immediately as they become known to the Seller. Purchaser may, upon reasonable notice to Seller, cancel schedules specified in the Purchase Order.
16. LIMITATION ON PURCHASER’S LIABILITY – STATUTE OF LIMITATIONS
IN NO EVENT WILL PURCHASER BE LIABLE TO SELLER OR ANY THIRD PARTY, IN CONTRACT, TORT OR OTHERWISE, FOR ANY LOSS OF PROFITS OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING FROM OR AS A RESULT OF THIS PURCHASE ORDER OR ANY AGREEMENT BETWEEN THE PARTIES RELATING TO THE PRODUCTS OR SERVICES SUPPLIED HEREUNDER, EVEN IF PURCHASER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Any action resulting from any breach on the part of Purchaser as to goods or services delivered hereunder must be commenced within one year after the cause of action has accrued.
17. SHIPPING PACKING AND RISK OF LOSS
All goods shall be suitably packed, marked with Purchaser’s purchase order number and shipped in accordance with shipping instructions specified herein and other wise in accordance with the requirements of common carriers so as to obtain the lowest transportation cost. No charge shall be made to Purchaser for boxing, packing, carting unless specifically itemized on the face hereof. Seller shall be liable to Purchaser for any loss or damage resulting from Seller’s failure to act so as to provide adequate protection during shipment. Unless the Purchase Order indicates that the goods are Ex Works, risk of loss or damage in transit shall be Seller’s sole responsibility and liability until conforming goods are delivered to and accepted by Purchaser. Additional expenses, with other shipping instructions, or improper description of the shipment and shipping documents shall be assumed by Seller. Purchaser’s purchase order number must be placed on all invoices and shipping papers.
18. PURCHASER PROPERTY
Any materials, parts or tools furnished by Purchaser with a Purchase Order shall be deemed to be held by Seller on consignment, shall remain the property of Purchaser and shall be returned to Purchaser on demand. Seller agrees to maintain said materials in proper working order and repair and to protect them against loss or damage. Seller further agrees to mark or tag said materials (insofar as practical) to clearly indicate Purchaser’s ownership thereof.
19. TAXES
Purchaser shall not be liable for any taxes, duties, customs or assessments in connection with the purchase and/or delivery of goods ordered
hereunder, except such as are expressly set forth on the face hereof.20. CHANGES
Purchaser may make changes in drawings, specifications, quantities, delivery schedules or methods of shipment or packaging on any item at any time. If such changes result in an increase or decrease in costs, and equitable adjustment of price and delivery schedule may be made, or Purchaser may, as its option, terminate the Purchase Order if agreement on an equitable adjustment cannot be reached. Seller must assert claims for equitable adjustment within ten (10) days of the change order. This order together with any change orders or instructions approved by Purchaser in writing shall constitute one integrated contract.
21. WAIVERS OF LIEN
Seller shall furnish all necessary lien waivers, affidavits, or other documents required to keep the property and premises of Purchaser, or Purchaser’s customers or assignees, free from all liens, claims, encumbrances or assessments arising out of the furnishing of labor, material or equipment by any party or entity in regard to the performance of this Purchase Order, as payments are made from time to time hereunder.
22. EQUAL OPPORTUNITY CLAUSE, FAIR LABOR STANDARDS ACT, AND COMPLIANCE WITH OTHER RELEVANT FEDERAL LAWS
By acceptance of this Purchase Order, Seller hereby warrants and represents to Purchaser that Seller shall comply with the Fair Labor Standards Act and all other applicable federal, state, and local laws, regulations and orders and shall, upon request, furnish to Purchaser a certificate to such effect. The Equal Opportunity Clause in Title 41; Part 60-1.4 of the Code of Federal Regulations (Paragraphs 1-7 of President’s Executive Order 11246), the Employment of the Handicapped Clause in Title 41, Part 60-741.4, of the Code of Federal Regulations, are incorporated herein by reference if and to the extent applicable.
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1 . Terms and Conditions of Sale – This Agreement shall cover all materials delivered to Purchaser, by Seller, at Purchaser’s request, whether specifically itemized herein or not . If not itemized herein such materials shall be invoiced to Purchaser at Seller’s prevailing price at time of delivery. Any receipt signed by any watchman or employee of Purchaser, owner, general contractor, carpenter contractor, or any other authorized agent shall be sufficient evidence of delivery . All orders are subject to the terms and conditions set forth in this Agreement and Seller’s warranty in effect as of the date of delivery.
2 . Warranty Summary – Seller warrants that the products delivered pursuant to this Agreement will be free from defects in material and workmanship at the time of delivery or, if installation is included, upon installation. SELLER SPECIFICALLY DISCLAIMS ALL OTHER EXPRESSED OR IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. No affirmation of fact or promise made by Seller, its agents or employees shall constitute a warranty. Seller’s obligation with respect to the products sold herein shall be limited to furnishing repair or replacement materials for factory defective materials at ACPI’s sole option or reinstallation if applicable. Under no circumstances shall any back charges be rendered by Purchaser without Seller’s prior written consent.
3 . Nonconforming Shipments – Any claim for defective goods, errors, transit damages or shortages shall be presented in writing by Purchaser to Seller within five (5) days from receipt of goods by Purchaser, but no claim shall be made by Purchaser for incidental, indirect, special, or consequential damages . Seller is not responsible for damage after (i) delivery for material only jobs or (ii) installation for installed jobs . Defective product will be handled in accordance with Seller’s Standard Limited Warranty . For further information on ACPI’s Warranty, see the brand’s official website for the products purchased .
4 . Storage Fee – All orders must be picked up or received by Purchaser (if Seller is delivering the order) within thirty (30) days from the date Seller provides notice to Purchaser that the order is at the delivery point . Seller will apply a $20 .00 per day storage fee to Purchaser’s account for any order not picked up or received within the 30-day period, and the order will not be released until such storage fee is paid .
5 . Undelivered Orders – Orders left at the delivery point, or not accepted for delivery, for more than 60 days after notice to Purchaser that the order is available, will be cancelled and Purchaser’s deposit for Cash Sales will be retained as liquidated damages . Credit Purchasers will be invoiced and liable for an amount equal to 50% of the total order as liquidated damages .
6 . Returns – THERE IS NO CANCELLATION, RETURN OR REFUNDS ON ANY SPECIAL/NON-STOCK ORDERS . Returns are permitted on stock items that are not damaged and have not been previously installed, and a restocking and handling fee of 25% of the total order will be charged . The product, including the original carton, must be in good condition and accompanied by the sales receipt . Returns must be received by Seller within 14 days of purchase . All transportation costs for returned goods must be paid by Purchaser . On permitted returns, a refund check will be issued within 120 days . There are no cash refunds .
7 . Financial Stability – If, at any time before shipment, the financial responsibility of Purchaser becomes impaired or unsatisfactory to Seller, in Seller’s sole judgment, cash payment or satisfactory security or assurances other than those herein provided may be required by Seller .
8 . Default – For credit sales, Purchaser agrees that delivery of product under this Agreement is subject to such credit limit placed upon Purchaser’s account by Seller’s Credit Department . Failure of Purchaser, even after making partial payment on account in accordance herein, to perform any of its obligations under this Agreement shall give Seller the option, upon notice to Purchaser, to suspend shipments or to cancel this Agreement or that por- tion of it as may remain unexecuted, without prejudice to any other rights or remedies of Seller .
9 . Insurance – Upon execution of this Agreement and for the duration of the warranty period, Seller shall maintain insurance in accordance with following limits: Commercial General Liability $1,000,000 each occurrence, $2,000,000 general aggregate, and $2,000,000 products/completed operations; Automobile Liability $1,000,000 combined single limit; Umbrella Liability $2,000,000 each occurrence and in the aggregate; Worker’s Compensation and Employer’s Liability $1,000,000 each accident, each employee, and policy limit .
Upon Purchaser’s written request, Seller shall provide a Certificate of Insurance for the above-mentioned limits . Purchaser and owner (if applicable) may be listed as additional insureds on the General Liability policy only . If endorsement for ongoing operations ISO Form CG2010 (4/13) or endorsement for completed operations ISO Form CG2037 (4/13) are required by Purchaser, such endorsement(s) will be issued in blanket form only . In no event shall limits per project, waiver of subrogation endorsements, umbrella amounts exceeding those set forth above, or primary and noncontributory endorsements apply to this Agreement .
10 . Indemnity; Limitation of Liability – Purchaser shall indemnify, defend and hold harmless Seller, including its directors, officers, agents and employees, from all claims, losses, damages, expenses (including reasonable attorneys’ fees and court costs), and liabilities for injury to or death of any person, or for loss or damage to any real or tangible personal property arising out of the acts or omissions of Purchaser under this Agreement . IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES . FURTHER, SELLER’S TOTAL AGGREGATE LIABILITY FOR DAMAGES UNDER OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION OR THE THEORY OF RECOVERY, SHALL NOT EXCEED THE PRICE PAID BY PURCHASER UNDER THIS AGREEMENT .
11 . Force Majeure – Seller shall not be responsible for contingencies beyond its control, such as fire, government seizure or control, acts of God, strikes, factory or labor conditions, or any other unfavorable causes that may or shall prevent shipment at the time or times provided for herein . Quoted delivery dates are Seller’s best estimate based on current schedules . Incremental or additional costs incurred by Seller, as a result of Purchaser’s alteration of the delivery schedule, will be borne by Purchaser .
12 . Offset – Purchaser agrees to (i) waive any right to offset, whether under this Agreement or under applicable law or otherwise, any amount owed by Seller to Purchaser against any amount then owed or in the future to be owed by Purchaser to Seller and (ii) pay to Seller the full amount owed to Seller in accordance with the terms of this Agreement . For the avoidance of doubt, Purchaser does not waive any substantive claim (other than with respect to its right to offset as described in the preceding sentence) that it may have against Seller .
13 . Legal Expenses and Collection Costs – Purchaser shall be liable for all reasonable costs of collection and statutory attorney’s fees incurred by Seller by reason of Purchaser’s failure to pay on account when due .
14 . Waiver -for Waiver by Seller of any default by Purchaser shall not be deemed a waiver by Seller of any default by Purchaser which may thereafter occur .
15 . Termination – This Agreement may be terminated by Purchaser only when approved in writing by a duly authorized officer or agent of Seller . In the event of termination, Seller will take immediate steps to mitigate termination costs to Purchaser, but Purchaser shall reimburse Seller for the costs of all labor, overhead and material costs and other commitments made by Seller in reliance upon this Agreement . Insolvency of Purchaser, the filing of a petition in bankruptcy or the commencement of any insolvency or receivership proceeding shall be deemed a termination by Purchaser .
16 . Security Interest – Seller retains a security interest in the materials and product ordered herein until payment in full has been received .
17 . Ownership of Materials – Designs, processes, drawings, specifications, reports, photographs, data and other technical or proprietary information relating to this order shall remain the property of Seller, and Purchaser agrees that it will not use any of such items or information therein for the production or procurement from any other source of articles furnished in connection with this order, nor reproduce or otherwise appropriate the same without the prior written authorization of Seller .
18 . Publicity – Purchaser agrees that it will not disclose or make available to any third party the terms or provisions of this Agreement, including but not limited to the items referred to in paragraph 15, without the prior written authorization of Seller .
19 . Assignment – Purchaser may not transfer or assign this Agreement without the prior written authorization of Seller .
20 . Order of Precedence – In the event of a conflict between the terms of this Agreement and any other document presented by Purchaser pursuant to this order, including but not limited to any purchase order issued by Purchaser, the terms of this Agreement shall govern .
21 . Remedies – Notwithstanding any other provision herein, Seller shall be entitled to seek equitable relief to protect its interests, including but not limited to preliminary and permanent injunctive relief . Nothing herein shall be construed to limit any other remedies available to Seller .
22 . Survival – Any obligations which by their nature would survive termination of this Agreement, including but not limited to the obligations of confi- dentiality and indemnification, shall survive such termination .
23 . Severability – These terms and conditions shall be severable and the invalidity or unenforceability of any of them under any circumstances shall not affect those terms and conditions which are not held to be invalid or unenforceable .
24 . Entire Agreement; Amendment – These terms and conditions constitute the entire understanding of the parties related to the subject matter hereof and may be amended or modified only by written agreement of the parties to this Agreement .
25 . Governing Law; Jurisdiction – This Agreement shall be governed by, and interpreted in accordance with, the laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Texas . Each party agrees (i) that the exclusive jurisdiction for the resolution of any dispute, proceeding, or legal action (jointly “Proceeding”) related to this Agreement or the transactions contemplated hereunder shall reside in the state or federal courts located in Dallas, Texas and (ii) not to assert any claim that it is not subject personally to the jurisdiction of such court, that the Proceeding is brought in an inconvenient forum, that the venue of the Proceeding is improper, or that this Agreement may not be enforced in or by such court .
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1 . Terms and Conditions of Sale – This Agreement shall cover all materials delivered to Purchaser, by Seller, at Purchaser’s request, whether specifically itemized herein or not. If not itemized herein such materials shall be invoiced to Purchaser at Seller’s prevailing price at time of delivery. Any receipt signed by any watchman or employee of Purchaser, owner, general contractor, carpenter contractor, or any other authorized agent shall be sufficient evidence of delivery . All orders are subject to the terms and conditions set forth in this Agreement and Seller’s warranty in effect as of the date of delivery.
2 . Warranty Summary – Seller warrants that the products delivered pursuant to this Agreement will be free from defects in material and workmanship at the time of delivery or, if installation is included, upon installation. SELLER SPECIFICALLY DISCLAIMS ALL OTHER EXPRESSED OR IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE . No affirmation of fact or promise made by Seller, its agents or employees shall constitute a warranty . Seller’s obligation with respect to the products sold herein shall be limited to furnishing repair or replacement materials for factory defective materials at ACPI’s sole option or reinstallation if applicable. Under no circumstances shall any back charges be rendered by Purchaser without Seller’s prior written consent.
3 . Nonconforming Shipments – Any claim for defective goods, errors, transit damages or shortages shall be presented in writing by Purchaser to Seller within five (5) days from receipt of goods by Purchaser, but no claim shall be made by Purchaser for incidental, indirect, special, or consequential damages . Seller is not responsible for damage after (i) delivery for material only jobs or (ii) installation for installed jobs . Defective product will be handled in accordance with Seller’s Standard Limited Warranty . For further information on ACPI’s Warranty, see the brand’s official website for the products purchased .
4 . Storage Fee – All orders must be picked up or received by Purchaser (if Seller is delivering the order) within thirty (30) days from the date Seller provides notice to Purchaser that the order is at the delivery point . Seller will apply a $20 .00 per day storage fee to Purchaser’s account for any order not picked up or received within the 30-day period, and the order will not be released until such storage fee is paid .
5 . Undelivered Orders – Orders left at the delivery point, or not accepted for delivery, for more than 60 days after notice to Purchaser that the order is available, will be cancelled and Purchaser’s deposit for Cash Sales will be retained as liquidated damages . Credit Purchasers will be invoiced and liable for an amount equal to 50% of the total order as liquidated damages .
6 . Returns – THERE IS NO CANCELLATION, RETURN OR REFUNDS ON ANY SPECIAL/NON-STOCK ORDERS . Returns are permitted on stock items that are not damaged and have not been previously installed, and a restocking and handling fee of 25% of the total order will be charged . The product, including the original carton, must be in good condition and accompanied by the sales receipt . Returns must be received by Seller within 14 days of purchase . All transportation costs for returned goods must be paid by Purchaser . On permitted returns, a refund check will be issued within 120 days . There are no cash refunds .
7 . Financial Stability – If, at any time before shipment, the financial responsibility of Purchaser becomes impaired or unsatisfactory to Seller, in Seller’s sole judgment, cash payment or satisfactory security or assurances other than those herein provided may be required by Seller .
8 . Default – For credit sales, Purchaser agrees that delivery of product under this Agreement is subject to such credit limit placed upon Purchaser’s account by Seller’s Credit Department . Failure of Purchaser, even after making partial payment on account in accordance herein, to perform any of its obligations under this Agreement shall give Seller the option, upon notice to Purchaser, to suspend shipments or to cancel this Agreement or that por- tion of it as may remain unexecuted, without prejudice to any other rights or remedies of Seller .
9 . Insurance – Upon execution of this Agreement and for the duration of the warranty period, Seller shall maintain insurance in accordance with following limits: Commercial General Liability $1,000,000 each occurrence, $2,000,000 general aggregate, and $2,000,000 products/completed operations; Automobile Liability $1,000,000 combined single limit; Umbrella Liability $2,000,000 each occurrence and in the aggregate; Worker’s Compensation and Employer’s Liability $1,000,000 each accident, each employee, and policy limit .
Upon Purchaser’s written request, Seller shall provide a Certificate of Insurance for the above-mentioned limits . Purchaser and owner (if applicable) may be listed as additional insureds on the General Liability policy only . If endorsement for ongoing operations ISO Form CG2010 (4/13) or endorsement for completed operations ISO Form CG2037 (4/13) are required by Purchaser, such endorsement(s) will be issued in blanket form only . In no event shall limits per project, waiver of subrogation endorsements, umbrella amounts exceeding those set forth above, or primary and noncontributory endorsements apply to this Agreement .
10 . Indemnity; Limitation of Liability – Purchaser shall indemnify, defend and hold harmless Seller, including its directors, officers, agents and employees, from all claims, losses, damages, expenses (including reasonable attorneys’ fees and court costs), and liabilities for injury to or death of any person, or for loss or damage to any real or tangible personal property arising out of the acts or omissions of Purchaser under this Agreement . IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES . FURTHER, SELLER’S TOTAL AGGREGATE LIABILITY FOR DAMAGES UNDER OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION OR THE THEORY OF RECOVERY, SHALL NOT EXCEED THE PRICE PAID BY PURCHASER UNDER THIS AGREEMENT .
11 . Force Majeure – Seller shall not be responsible for contingencies beyond its control, such as fire, government seizure or control, acts of God, strikes, factory or labor conditions, or any other unfavorable causes that may or shall prevent shipment at the time or times provided for herein . Quoted delivery dates are Seller’s best estimate based on current schedules . Incremental or additional costs incurred by Seller, as a result of Purchaser’s alteration of the delivery schedule, will be borne by Purchaser .
12 . Offset – Purchaser agrees to (i) waive any right to offset, whether under this Agreement or under applicable law or otherwise, any amount owed by Seller to Purchaser against any amount then owed or in the future to be owed by Purchaser to Seller and (ii) pay to Seller the full amount owed to Seller in accordance with the terms of this Agreement . For the avoidance of doubt, Purchaser does not waive any substantive claim (other than with respect to its right to offset as described in the preceding sentence) that it may have against Seller .
13 . Legal Expenses and Collection Costs – Purchaser shall be liable for all reasonable costs of collection and statutory attorney’s fees incurred by Seller by reason of Purchaser’s failure to pay on account when due .
14 . Waiver -for Waiver by Seller of any default by Purchaser shall not be deemed a waiver by Seller of any default by Purchaser which may thereafter occur .
15 . Termination – This Agreement may be terminated by Purchaser only when approved in writing by a duly authorized officer or agent of Seller . In the event of termination, Seller will take immediate steps to mitigate termination costs to Purchaser, but Purchaser shall reimburse Seller for the costs of all labor, overhead and material costs and other commitments made by Seller in reliance upon this Agreement . Insolvency of Purchaser, the filing of a petition in bankruptcy or the commencement of any insolvency or receivership proceeding shall be deemed a termination by Purchaser .
16 . Security Interest – Seller retains a security interest in the materials and product ordered herein until payment in full has been received .
17 . Ownership of Materials – Designs, processes, drawings, specifications, reports, photographs, data and other technical or proprietary information relating to this order shall remain the property of Seller, and Purchaser agrees that it will not use any of such items or information therein for the production or procurement from any other source of articles furnished in connection with this order, nor reproduce or otherwise appropriate the same without the prior written authorization of Seller .
18 . Publicity – Purchaser agrees that it will not disclose or make available to any third party the terms or provisions of this Agreement, including but not limited to the items referred to in paragraph 15, without the prior written authorization of Seller .
19 . Assignment – Purchaser may not transfer or assign this Agreement without the prior written authorization of Seller .
20 . Order of Precedence – In the event of a conflict between the terms of this Agreement and any other document presented by Purchaser pursuant to this order, including but not limited to any purchase order issued by Purchaser, the terms of this Agreement shall govern .
21 . Remedies – Notwithstanding any other provision herein, Seller shall be entitled to seek equitable relief to protect its interests, including but not limited to preliminary and permanent injunctive relief . Nothing herein shall be construed to limit any other remedies available to Seller .
22 . Survival – Any obligations which by their nature would survive termination of this Agreement, including but not limited to the obligations of confi- dentiality and indemnification, shall survive such termination .
23 . Severability – These terms and conditions shall be severable and the invalidity or unenforceability of any of them under any circumstances shall not affect those terms and conditions which are not held to be invalid or unenforceable .
24 . Entire Agreement; Amendment – These terms and conditions constitute the entire understanding of the parties related to the subject matter hereof and may be amended or modified only by written agreement of the parties to this Agreement .
25 . Governing Law; Jurisdiction – This Agreement shall be governed by, and interpreted in accordance with, the laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Texas . Each party agrees (i) that the exclusive jurisdiction for the resolution of any dispute, proceeding, or legal action (jointly “Proceeding”) related to this Agreement or the transactions contemplated hereunder shall reside in the state or federal courts located in Dallas, Texas and (ii) not to assert any claim that it is not subject personally to the jurisdiction of such court, that the Proceeding is brought in an inconvenient forum, that the venue of the Proceeding is improper, or that this Agreement may not be enforced in or by such court .
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1 . Terms and Conditions of Sale – This Agreement shall cover all materials delivered to Purchaser, by Seller, at Purchaser’s request, whether specifically itemized herein or not . If not itemized herein such materials shall be invoiced to Purchaser at Seller’s prevailing price at time of delivery . Any receipt signed by any watchman or employee of Purchaser, owner, general contractor, carpenter contractor, or any other authorized agent shall be sufficient evidence of delivery . All orders are subject to the terms and conditions set forth in this Agreement and Seller’s warranty in effect as of the date of delivery .
2 . Warranty Summary – Seller warrants that the products delivered pursuant to this Agreement will be free from defects in material and workmanship at the time of delivery or, if installation is included, upon installation . SELLER SPECIFICALLY DISCLAIMS ALL OTHER EXPRESSED OR IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE . No affirmation of fact or promise made by Seller, its agents or employees shall constitute a warranty . Seller’s obligation with respect to the products sold herein shall be limited to furnishing repair or replacement materials for factory defective materials at ACPI’s sole option or reinstallation if applicable . Under no circumstances shall any back charges be rendered by Purchaser without Seller’s prior written consent .
3 . Nonconforming Shipments – Any claim for defective goods, errors, transit damages or shortages shall be presented in writing by Purchaser to Seller within five (5) days from receipt of goods by Purchaser, but no claim shall be made by Purchaser for incidental, indirect, special, or consequential damages . Seller is not responsible for damage after (i) delivery for material only jobs or (ii) installation for installed jobs . Defective product will be handled in accordance with Seller’s Standard Limited Warranty . For further information on ACPI’s Warranty, see the brand’s official website for the products purchased .
4 . Storage Fee – All orders must be picked up or received by Purchaser (if Seller is delivering the order) within thirty (30) days from the date Seller provides notice to Purchaser that the order is at the delivery point . Seller will apply a $20 .00 per day storage fee to Purchaser’s account for any order not picked up or received within the 30-day period, and the order will not be released until such storage fee is paid .
5 . Undelivered Orders – Orders left at the delivery point, or not accepted for delivery, for more than 60 days after notice to Purchaser that the order is available, will be cancelled and Purchaser’s deposit for Cash Sales will be retained as liquidated damages . Credit Purchasers will be invoiced and liable for an amount equal to 50% of the total order as liquidated damages .
6 . Returns – THERE IS NO CANCELLATION, RETURN OR REFUNDS ON ANY SPECIAL/NON-STOCK ORDERS . Returns are permitted on stock items that are not damaged and have not been previously installed, and a restocking and handling fee of 25% of the total order will be charged . The product, including the original carton, must be in good condition and accompanied by the sales receipt . Returns must be received by Seller within 14 days of purchase . All transportation costs for returned goods must be paid by Purchaser . On permitted returns, a refund check will be issued within 120 days . There are no cash refunds .
7 . Financial Stability – If, at any time before shipment, the financial responsibility of Purchaser becomes impaired or unsatisfactory to Seller, in Seller’s sole judgment, cash payment or satisfactory security or assurances other than those herein provided may be required by Seller .
8 . Default – For credit sales, Purchaser agrees that delivery of product under this Agreement is subject to such credit limit placed upon Purchaser’s account by Seller’s Credit Department . Failure of Purchaser, even after making partial payment on account in accordance herein, to perform any of its obligations under this Agreement shall give Seller the option, upon notice to Purchaser, to suspend shipments or to cancel this Agreement or that por- tion of it as may remain unexecuted, without prejudice to any other rights or remedies of Seller .
9 . Insurance – Upon execution of this Agreement and for the duration of the warranty period, Seller shall maintain insurance in accordance with following limits: Commercial General Liability $1,000,000 each occurrence, $2,000,000 general aggregate, and $2,000,000 products/completed operations; Automobile Liability $1,000,000 combined single limit; Umbrella Liability $2,000,000 each occurrence and in the aggregate; Worker’s Compensation and Employer’s Liability $1,000,000 each accident, each employee, and policy limit .
Upon Purchaser’s written request, Seller shall provide a Certificate of Insurance for the above-mentioned limits . Purchaser and owner (if applicable) may be listed as additional insureds on the General Liability policy only . If endorsement for ongoing operations ISO Form CG2010 (4/13) or endorsement for completed operations ISO Form CG2037 (4/13) are required by Purchaser, such endorsement(s) will be issued in blanket form only . In no event shall limits per project, waiver of subrogation endorsements, umbrella amounts exceeding those set forth above, or primary and noncontributory endorsements apply to this Agreement .
10 . Indemnity; Limitation of Liability – Purchaser shall indemnify, defend and hold harmless Seller, including its directors, officers, agents and employees, from all claims, losses, damages, expenses (including reasonable attorneys’ fees and court costs), and liabilities for injury to or death of any person, or for loss or damage to any real or tangible personal property arising out of the acts or omissions of Purchaser under this Agreement . IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES . FURTHER, SELLER’S TOTAL AGGREGATE LIABILITY FOR DAMAGES UNDER OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION OR THE THEORY OF RECOVERY, SHALL NOT EXCEED THE PRICE PAID BY PURCHASER UNDER THIS AGREEMENT .
11 . Force Majeure – Seller shall not be responsible for contingencies beyond its control, such as fire, government seizure or control, acts of God, strikes, factory or labor conditions, or any other unfavorable causes that may or shall prevent shipment at the time or times provided for herein . Quoted delivery dates are Seller’s best estimate based on current schedules . Incremental or additional costs incurred by Seller, as a result of Purchaser’s alteration of the delivery schedule, will be borne by Purchaser .
12 . Offset – Purchaser agrees to (i) waive any right to offset, whether under this Agreement or under applicable law or otherwise, any amount owed by Seller to Purchaser against any amount then owed or in the future to be owed by Purchaser to Seller and (ii) pay to Seller the full amount owed to Seller in accordance with the terms of this Agreement . For the avoidance of doubt, Purchaser does not waive any substantive claim (other than with respect to its right to offset as described in the preceding sentence) that it may have against Seller .
13 . Legal Expenses and Collection Costs – Purchaser shall be liable for all reasonable costs of collection and statutory attorney’s fees incurred by Seller by reason of Purchaser’s failure to pay on account when due .
14 . Waiver -for Waiver by Seller of any default by Purchaser shall not be deemed a waiver by Seller of any default by Purchaser which may thereafter occur .
15 . Termination – This Agreement may be terminated by Purchaser only when approved in writing by a duly authorized officer or agent of Seller . In the event of termination, Seller will take immediate steps to mitigate termination costs to Purchaser, but Purchaser shall reimburse Seller for the costs of all labor, overhead and material costs and other commitments made by Seller in reliance upon this Agreement . Insolvency of Purchaser, the filing of a petition in bankruptcy or the commencement of any insolvency or receivership proceeding shall be deemed a termination by Purchaser .
16 . Security Interest – Seller retains a security interest in the materials and product ordered herein until payment in full has been received .
17 . Ownership of Materials – Designs, processes, drawings, specifications, reports, photographs, data and other technical or proprietary information relating to this order shall remain the property of Seller, and Purchaser agrees that it will not use any of such items or information therein for the production or procurement from any other source of articles furnished in connection with this order, nor reproduce or otherwise appropriate the same without the prior written authorization of Seller .
18 . Publicity – Purchaser agrees that it will not disclose or make available to any third party the terms or provisions of this Agreement, including but not limited to the items referred to in paragraph 15, without the prior written authorization of Seller .
19 . Assignment – Purchaser may not transfer or assign this Agreement without the prior written authorization of Seller .
20 . Order of Precedence – In the event of a conflict between the terms of this Agreement and any other document presented by Purchaser pursuant to this order, including but not limited to any purchase order issued by Purchaser, the terms of this Agreement shall govern .
21 . Remedies – Notwithstanding any other provision herein, Seller shall be entitled to seek equitable relief to protect its interests, including but not limited to preliminary and permanent injunctive relief . Nothing herein shall be construed to limit any other remedies available to Seller .
22 . Survival – Any obligations which by their nature would survive termination of this Agreement, including but not limited to the obligations of confi- dentiality and indemnification, shall survive such termination .
23 . Severability – These terms and conditions shall be severable and the invalidity or unenforceability of any of them under any circumstances shall not affect those terms and conditions which are not held to be invalid or unenforceable .
24 . Entire Agreement; Amendment – These terms and conditions constitute the entire understanding of the parties related to the subject matter hereof and may be amended or modified only by written agreement of the parties to this Agreement .
25 . Governing Law; Jurisdiction – This Agreement shall be governed by, and interpreted in accordance with, the laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Texas . Each party agrees (i) that the exclusive jurisdiction for the resolution of any dispute, proceeding, or legal action (jointly “Proceeding”) related to this Agreement or the transactions contemplated hereunder shall reside in the state or federal courts located in Dallas, Texas and (ii) not to assert any claim that it is not subject personally to the jurisdiction of such court, that the Proceeding is brought in an inconvenient forum, that the venue of the Proceeding is improper, or that this Agreement may not be enforced in or by such court .