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Exclusive Terms and Conditions |
| Upon acceptance or commencement of performance relating to the sale of any goods or materials, or the rendering of any services pursuant to this purchase order, the terms of this purchase order shall be deemed a legally enforceable contract between Buyer and Seller (“the Agreement”). Any different, additional or conflicting terms and conditions, whether contained in an order acknowledgment, invoice, or otherwise, are expressly rejected unless incorporated in a writing signed by an authorized representative of Buyer's Corporate Procurement Department. Buyer may, at its convenience, terminate this Agreement at any time upon notice to Seller. |
Price and Price Protection |
| The price(s) indicated herein are maximum price(s) to be charged to Buyer for the term of this Agreement. Seller agrees that if at any time during the term of this Agreement, Seller should increase the price(s) herein stated, Buyer shall have the option of canceling the undelivered portion of this order without further cost to Buyer. If Seller shall sell similar or lesser quantities of the materials, goods, and/or services purchased hereunder to any third-party at a lower price than the price charged to Buyer, then Seller shall offer that lower price to Buyer. Unless otherwise agreed to by the parties, payment terms include a 2% 10 net 30 discount from the later of: product acceptance or correct invoice receipt. All Federal, State, or local taxes of any nature that are billed to Buyer are included in price(s) listed herein, and shall be itemized separately in Seller's invoice. |
Delivery Title and Risk of Loss |
| Time is of the essence hereunder. Failure on the part of Seller to strictly meet Buyer’s delivery requirements shall give Buyer the right to recover damages from Seller for non-performance, and shall also give Buyer the right to cancel all or part of this Agreement. Title shall pass to Buyer on delivery of conforming materials, goods, and/or services to the location designated by Buyer. Notwithstanding any agreement to pay freight, express, or other transportation charges, risk of loss or damage in transit shall be upon the Seller. Delivery shall not be complete until the materials, goods, and/or services have been actually received, inspected, and accepted by Buyer. All purchases under this Agreement are subject to Buyer's inspection and approval. Rejected purchases may, at Buyer's option, be returned at Seller's sole expense. Buyer reserves the right to require use of its freight contract(s), in which case prices hereunder will be adjusted accordingly. |
Warranties/Year 2000 Warranty |
| Seller represents and warrants that all materials, goods, and/or services delivered under this Agreement shall be merchantable and free from all defects in material and workmanship, shall be fit for their intended purpose, and shall strictly conform to the specifications, if any. Seller also represents and warrants that Seller has fully disclosed to Buyer all material information known to Seller regarding risks to human and animal health and the environment that may be associated with the use, exposure to, or disposal of Seller’s materials, goods, and/or services. Seller further represents and warrants that the materials, goods, and/or services purchased by Buyer shall not be adversely affected by the calendar year 2000, or by any related or unrelated information technology-based issues, or any related or unrelated date recognition issues. |
Indemnification |
| Except to the extent of the Buyer's gross negligence or willful misconduct, Seller shall indemnify, defend, and hold Buyer and Buyer’s Customers (and their subsidiaries and affiliated companies, officers, directors, employees, and agents) harmless from and against any loss, cost, expense (including reasonable attorney’s fees), or liability, including without limitation, for personal injury, including death, and property damage (hereinafter “Losses”), arising out of or in connection with the materials, goods, and/or services provided hereunder. Seller’s indemnification obligations hereunder are absolute and unconditional. If this Agreement includes work on Buyer's or Buyer’s Customers’ premises, Seller shall comply with Buyer’s or its customers’ applicable health and safety policies and procedures, and all applicable laws, rules, regulations, and codes. Further, the indemnification and defense obligations set forth herein shall apply to all Losses arising out of or in connection with such work. Upon request, Seller agrees to furnish a certificate from its insurance carrier showing that Seller carries Workmen's Compensation, Public Liability, Property Damage, and Automobile Insurance coverage in form and amounts which in Buyer's judgment are adequate. In addition, Seller shall indemnify, defend, and hold Buyer and Buyer’s Customers (and their respective subsidiaries and affiliated companies, officers, directors, employees, and agents) harmless from and against any and all Losses arising as a result of a claim or allegation that the materials, goods, and/or services provided by Seller infringe any patent, copyright, trademark, trade name, or other intellectual property right whenever or wherever obtained, or constitute an unlawful or unauthorized use of any proprietary or other information. |
Information |
| Seller agrees that all information provided by Buyer for purposes of this Agreement shall be held in confidence and be used only in performance of this Agreement. Seller further agrees that all equipment, specifications, drawings, technical information, and data furnished by Buyer or created or developed by Seller in connection with this Agreement shall be and remain the property of Buyer and shall not be used or disclosed by Seller. All such information and copies thereof shall be returned to Buyer upon request. |
Compliance with Law and E/E/O and Governing Law |
| In performance of this Agreement, Seller agrees to comply at all times with all applicable Federal, State, and local laws, rules, and regulations including Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, as amended, the Vietnam Era Readjustment Assistance Act of 1974, as amended (38 USC 4212), and all other applicable laws, rules, and regulations, all of which are incorporated herein by reference. Shipments of goods and materials destined to Mexico or Canada must comply with applicable NAFTA requirements. This Agreement, and the sale of materials, goods, and/or services hereunder, shall be governed and interpreted in accordance with the laws of the Commonwealth of Pennsylvania, without regard to its conflict of law rules. |
Assignment and Subcontractors |
| Neither party to this Agreement shall have the right to assign its rights, interests, or obligations under this Agreement without the prior written permission of the other party, except that Buyer may assign this Agreement to an affiliated company of Buyer or a purchaser of all or substantially all of Buyer’s assets or stocks without written permission. In the event that Buyer authorizes Seller to assign or subcontract any part of this Agreement, Seller shall remain principally liable hereunder. |
Force Majeure |
| Except as provided elsewhere herein, in the event of contingencies beyond the reasonable control of Buyer or Seller that interfere with the production, supply, or transportation of goods and/or services covered by this Agreement, quantities so affected shall be eliminated from this Agreement without liability, but this Agreement shall otherwise remain in force. If Seller is unable to supply any goods and/or services under this Agreement to all its customers, Seller may allocate such available supply to its customers on a fair and equitable basis. If any force majeure shall remain in effect for more than thirty (30) consecutive days, this Agreement may be canceled by Buyer without any further liability. |
Remedies, Third-Party Rights, and Non-Hire/Exclusivity |
| Regardless of whether goods are being sold or leased or whether services are performed hereunder, Buyer and Seller agree that both parties have all the rights, duties, and remedies available under the Uniform Commercial Code. Buyer’s Customers shall be third-party beneficiaries under this Agreement. Without limiting the foregoing, such customers shall have the same rights as Buyer with respect to the warranty and indemnification provisions herein. During the term of the parties’ business relationship (and, in case of paragraph [a] of this section, for a period of two years thereafter) Seller will not: a) hire any current or former employee of Buyer or its customers, or b) to any current Buyer’s customer directly or indirectly provide or offer to provide integrated supply services, or sell or quote a product of the type supplied under this Agreement.
October 07, 2002
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