Terms of Payment. Invoices shall be dated no earlier than date of shipment or delivery of service. The discount period begins upon receipt of the invoice, required delivery date, or date any applicable discrepancy is resolved, whichever date is later. Standard payment terms are net sixty (60) days after receipt of invoice, required delivery date, acceptance, or the date any applicable non-conformity is resolved, whichever date is later.
Delivery. Seller shall make delivery at the time and in the manner specified in the Purchase Order. If Seller fails to make deliveries at the time specified, Buyer shall be entitled to all remedies available at law, including, but not limited to, modifying the delivery item, canceling the Purchase Order, or to purchasing the goods elsewhere, and in every case, Seller shall pay to Buyer and hold Buyer harmless from all costs and damages sustained by Buyer as a result of Seller’s failure to timely deliver. If at any time Seller believes it may be unable to comply with any delivery term, Seller shall immediately notify Buyer in writing as to the delay and shall continue to update Buyer as to the delay. All packing and cartage are included in the price. No additions to the price will be allowed by Buyer under any circumstances unless otherwise specified on the face hereof. The F.O.B. term used on the Purchase Order is a delivery term, but risk of loss shall remain with the Seller until acceptance by Buyer at the Delivery Destination.
Integration. The Purchase Order consists of the Purchase Order, these Terms and Conditions and the Exhibits set forth and incorporated by reference on the face of the Purchase Order. The Purchase Order is intended by Buyer and Seller to be the final, complete and exclusive statement of all of the terms of their agreement respecting the goods identified in this Purchase Order. Any of these Terms and Conditions that may conflict with the normal operation of any provision of the Uniform Commercial Code (“Code”) shall constitute a variation by agreement and have precedence over the Code. Buyer hereby provides notice pursuant to Section 2-207 of the Code that Buyer objects to all terms and conditions contained in any written acceptance by Seller that are different from or in addition to the terms of this Purchase Order.
Inspection. All goods and services furnished hereunder will be subject to inspection and test by Buyer at all times and places and will be subject to Buyer’s final inspection and approval within a reasonable time after delivery. It is the supplier’s responsibility to ensure that all product, assembly, material and process specifications reflect the latest revision levels. If Seller delivers non-conforming goods, Buyer may at its option and at Seller’s expense: (i) reject and return the goods for credit or refund; (ii) require Seller to promptly correct or replace the goods; (iii) correct the goods; or (iv) obtain replacement goods from another source. Seller shall not redeliver corrected or rejected goods without disclosing the former rejection or requirement for correction. Seller shall disclose any corrective action taken. Repair, replacement and other correction and redelivery shall be completed within the original delivery schedule or such later time as Buyer may reasonably direct. All costs, expenses and loss of value incurred as a result of or in connection with nonconformance and repair, replacement or other correction may be recovered from Seller by equitable price reduction or credit against any amounts that may be owed to Seller under this purchase order or another.Payment for any goods or services shall not be deemed acceptance and in no event shall Buyer incur any liability for payment for rejected goods or services.
Time of the Essence. Time is of the essence in this Purchase Order. Seller shall strictly adhere to all dates and times required by this Purchase Order for the shipment and delivery to Buyer of goods, samples, models, drawings and specifications, and to strictly comply with any special instructions that may be provided by Buyer to Seller with respect to this Purchase Order. If Seller fails to so adhere to any such date and time requirement or should Buyer be insecure as to Seller’s ability to so adhere, Buyer shall have the right to require Seller, at Seller’s sole cost and expense, accelerate its performance of this Purchase Order by, among other things, working overtime or premium time hours, adding multiple shifts, and shipping the goods by the most expeditious means available.
Warranty. Seller warrants that all goods sold and delivered to Buyer shall at all times: (a) be free from defects in design, materials, manufacture, fabrication, workmanship and title and (b) strictly conform to the requirements and specifications of the Purchase Order, including any sample, model, drawing or technical specifications(s) furnished by Seller to and approved by Buyer. If this Purchase Order does not set forth technical requirements or specifications, Seller warrants, in addition to (a) above, that the goods shall be fit for the particular use and purpose for which the goods are required by Buyer, knowledge of which use and purpose Seller hereby expressly admits. Approval by Buyer of any sample, model, drawing or technical specification(s) furnished by Seller shall not release or relieve Seller of its warranty obligations nor affect Buyer’ absolute right to reject, at any time, goods which fail to strictly conform to the requirements of this Purchase Order. For a period of two (2) years after delivery, any and all goods which fail to strictly conform to the requirements of this Purchase Order, including Seller’s warranty(ies), shall be removed, replaced and reinstalled at the sole cost and expense of Seller, and Seller shall be liable for and pay the full cost and expenses of making good all work damaged or destroyed by reason of Seller having sold and delivered such goods.
Insurance. Seller shall, at its own expense, secure (i) a comprehensive general liability insurance policy in form acceptable to Buyer covering the goods being sold hereunder in an amount not less than $1,000,000 for bodily injury and $1,000,000 for property damage and (ii) applicable workers compensation insurance for Seller’s employees, as required by applicable law. Buyer and Facility Owner shall be named as additional insureds under the policy described in clause (i), and the terms of all required policies shall preclude subrogation claims against Buyer and Facility Owner and their respective officers, directors, employees, and agents. Prior to the execution of this Agreement, Seller shall deliver to Buyer certificates of insurance evidencing the existence of such policies, all in such form as Buyer may reasonably require. The policies shall not be canceled or materially changed or altered without first giving written notice to Buyer. A renewal certificate of insurance evidencing the renewal of such policy shall be provided to Buyer at least ten days prior to a policy’s expiration and provide coverage for products liability and completed operations coverage. The coverage provided under such policies shall be occurrence-based, not claims made. Seller hereby acknowledges that the coverage limits contained in any policy shall in no way limit the liabilities or obligations of Seller under this Agreement, including, without limitation, Seller’s indemnification obligations below.
Indemnity. Seller warrants that it is fully vested with the right to sell and deliver the goods identified in this Purchase Order and that neither the sale of the goods nor their use by Buyer or persons in privity with Buyer shall infringe any patent rights, other intellectual property, or other property rights of third parties. Seller agrees to indemnify, defend, and hold harmless Buyer, the Facility Owner and each of their officers, directors, affiliates, employees, agents, successors and assigns against any and all loss, liability, damage (whether from personal injury, property damage, or direct or consequential damage or economic loss), costs, attorneys’ fees and expenses arising from or suffered or incurred or in any manner connected with (a) any injury to person or property caused in whole or in part by any act or omissions including, without limitation, negligent or non-negligent acts or omissions, by Seller, Seller’s agents or employees in the furnishing of articles or materials or in the performance of work hereunder, except those injuries and damage caused solely by Buyer, (b) any purchase called for by this Purchase Order or the use of such purchases, or infringement of any patent, copyright, trademark, trade name, brand or slogan, or of unfair competition or any adverse statutory or nonstatutory right; (c) the alleged violation by such purchase or in its manufacture or sale of any federal, state or local statute, ordinance or administrative order, rule of regulation or (d) any material breach or default by Seller or its officers, directors, agents, employees or subcontractors of any term of this Purchase Order.
Conformity with Existing Laws. Seller shall comply with all federal, state and local laws, executive orders, codes and regulations effective where this Purchase Order is to be performed. Where so required, all provisions of laws, rules, regulations and executive orders are hereby incorporated into and made a part of this Purchase Order. The laws of [INSERT STATE/COMMONWEALTH (e.g., the State of Colorado, or the Commonwealth of Pennsylvania)], without reference to its conflict of laws’ rules, shall govern as to all questions arising under this Purchase Order.
Invoices. Seller shall deliver to Buyer an invoice for all goods covered in this Purchase Order within five (5) days of the completion of the deliveries of such goods. Buyer shall not be responsible for invoices received later than five (5) days. Invoices issued by Seller pursuant to this Purchase Order are subject to payment only if undisputed by Buyer and upon complete performance by Seller in strict compliance with all the terms and conditions of this Purchase Order.
Termination. Buyer shall have the right to terminate this Purchase Order, in whole or in part, at any time and without cause by written notice to Seller, and Seller shall immediately cease work hereunder on receipt of such notice. If the goods identified in this Purchase Order are specially by Seller for manufacturing all conforming finished goods in Seller’s possession or in shipment and goods in process of manufacture as of the date off Seller’s receipt of notice of termination. If the goods are stock goods, rather than specially manufactured goods, and provided Seller is not in breach of any duty or warranty hereunder, Buyer shall only pay to Seller its reasonable re-stocking costs(s). In no event shall Buyer pay Seller or be liable to Seller for loss of anticipated profits or consequential or incidental damages. If Buyer is found to have wrongfully terminated this Purchase Order, Seller’s remedies shall be limited to those set forth in this Paragraph 9. manufactured goods, and provided that Seller is not in breach of any duty or warranty of this Purchase Order, Buyer shall pay Seller all actual costs reasonably incurred
Changes. This Purchase Order may not be amended or modified except in writing signed by Buyer. Buyer shall have the right to order changes at any time and from time to time in and to the quantity(ies), specifications, drawings, requirements and time for delivery of and for the goods identified in this Purchase Order, and Seller shall comply with all such written orders issued by Buyer. Should any such order(s) cause an increase or decrease in the purchase price of the goods or time for Seller’s performance of any duty or warranty hereunder, the price and/or time shall be equitably and accordingly adjusted, provided, however, that any claim by Seller for an increase in the purchase price of the goods and/or the time for Seller to perform hereunder shall be submitted in writing to Buyer within ten (10) days of the date on which Buyer issued its written order hereunder or such claim shall be deemed waived and released by Buyer. No increase in the purchase price of the goods or the time for Seller to perform hereunder shall be binding on Buyer unless and until such change(s) is accepted by Buyer in writing.
Review and Audit. Seller shall keep and preserve, for at least three (3) years following the sale of each and every good hereunder, full and accurate accounting records relating to such good. Seller shall give Buyer and its designated representatives (which representatives may include, without limitation, independent auditors) access to such records during such period of time to review or audit the records, from time to time, upon request. Seller shall also provide, at Seller’s own expense, copies of all or a portion of the records when so requested by Buyer. In the event any audit conducted by an independent auditor demonstrates a variance of more than five percent (5%) on an annual basis in the amount determined by such auditor to represent the fair purchase cost of any good purchased hereunder and the amount actually paid to Seller for such good, Seller shall pay to Buyer the reasonable cost of such audit. In any event, Seller shall promptly pay to Buyer the amount of any such variance which results in an overpayment by Buyer to Seller.
Covenants. Seller hereby covenants as follows: (a) Seller shall not occupy or use the Facility, nor shall interfere with the activities of the Facility, except as is reasonably necessary to perform its obligations hereunder; (b) Seller shall not cause or permit any Hazardous Material to be used, stored, or generated on, or transported to and from the Facility (where “Hazardous Material” shall mean, without limitation, those substances included within the definitions of “hazardous substances”, “hazardous materials”, “toxic substances”, or “solid waste” in any applicable state or federal environmental law); (c) Seller shall not make any alterations or improvements to the Facility, nor operate any equipment or materials belonging to Buyer, without the prior written consent of Buyer; (d) no portion of any passageway or exit at the Facility shall be blocked or obstructed in any manner whatsoever, and no exit door or any exit shall be locked, blocked, or bolted while the Facility is in use; and (e) Seller shall make all efforts to protect the purchasing, storage, and shipment of the goods, and the condition of the goods upon delivery to Buyer, from adulteration or contamination, whether from terrorist acts or otherwise. Buyer will cooperate with Seller in connection with the foregoing. Seller shall immediately notify Buyer of the occurrence of any such adulteration or contamination and of the steps taken and to be taken by Seller to control the spread of, and to eliminate, such adulteration or contamination. Seller shall be responsible for reimbursing Buyer and the Facility Owner for the costs, expenses and liabilities incurred by Buyer and the Owner arising as a result of such adulteration or contamination.
No Assignment. Neither this Purchase Order nor any duty of Seller hereunder may be assigned or delegated by Seller without the prior written consent of Buyer. Buyer may assign its rights and obligations hereunder to the owner of the Facility or to any other management company retained by the owner to manage the Facility, and in such event, Buyer shall have no further liability to Seller hereunder for the performance of any obligations or duties arising after the date of such assignment.
Rights and Remedies Cumulative. These Terms and Conditions are not intended and shall not in any way be construed to limit or restrict Buyer’s rights and remedies at law and in equity, all of which rights and remedies are fully reserved by Buyer. Any failure or forbearance by Buyer to enforce any of these Terms and Conditions or any of its rights and remedies at law or in equity shall not constitute and shall not be asserted by Seller as a waiver or relinquishment by Buyer of any of its rights and remedies under this Purchase Order at law and in equity. Buyer shall be entitled to its attorneys’ fees incurred to enforce its rights against Buyer pursuant to this Purchase Order.
Dispute Resolution. Any disputes arising out of or related to this Purchase Order shall first be mediated in [INSERT CITY, STATE OF FACILITY], with the American Arbitration Association (“AAA”) pursuant to its Construction Industry Mediation and Arbitration Rules (“AAA Rules”). If mediation does not resolve the dispute, then the dispute shall, at the option of the Buyer, in its sole and absolute discretion, either be arbitrated with the AAA pursuant to the AAA Rules or litigated in a court of competent jurisdiction in [INSERT COUNTY OF FACILITY]. Buyer shall be entitled to join in any dispute resolution party any party it deems necessary for a complete determination of the dispute by either arbitration or litigation. Any arbitration award shall be final and binding on the parties.
Confidentiality. The Seller shall keep strictly confidential all information concerning and relating to this Purchase Order. The Seller shall abide by the provisions of all applicable laws relating to data privacy or confidentiality, and as many of the same as may be amended. The Seller agrees to defend, indemnify and hold Buyer harmless from any unlawful disclosure and or use of any protected information.