PO Terms and Conditions
1 - General.
When a purchase order (whether used as an offer, acceptance of an offer, or confirmation of a contract) is submitted by SDI, Inc. (“SDI”), SDI submits such purchase order as purchasing agent for an indicated client of SDI (the “SDI Client”) and such purchase order is conditioned on and limited to the terms set forth herein. By performing or by acknowledging receipt of a purchase order (a “Contract”), Seller assents to all the terms and conditions set forth herein. “Work” shall mean the goods supplied and/or services performed hereunder. SDI and SDI Client object to any different, additional or conflicting terms in Seller's quotations, acknowledgments, acceptances or similar documents. Specifications, drawings and other attachments or documents referred to herein are incorporated into and made a part of the applicable Contract.
2 - DELIVERY; TITLE.
Seller acknowledges that TIME IS OF THE ESSENCE in the performance and delivery of the Work by the date set forth on the face of the applicable Contract. Failure on the part of Seller to strictly meet SDI Client’s delivery requirements shall give SDI and SDI Client the right to recover damages from Seller for non-performance, and shall also give SDI and SDI Client the right to cancel all or part of this Agreement. Title to conforming materials, supplies and equipment comprising part of the Work shall pass from Seller to SDI Client at SDI Client's site or other specified delivery point. Notwithstanding any agreement to pay freight, express, or other transportation charges, if any, risk of loss or damage in transit shall be upon the Seller. Passage of title shall not relieve Seller of any of its obligations under the applicable Contract. All purchases under this Agreement are subject to SDI Client's inspection and approval. Rejected purchases may, at SDI Client's option, be returned at Seller's sole expense.
3 - WARRANTY.
Seller warrants that the Work will: (a) be of quality, design, material and workmanship, free of defects (and with respect to MRO Supplies that are cast, machined or engineered materials, such warranty shall be for a term ending on the later of one (1) year from date of final payment or the documented date of service), (b) in the case of services, consist of furnishing all operations, labor, equipment, materials and supplies and doing all things necessary for proper performance as described in the applicable Contract, (c) conform to agreed upon specifications, drawings, data and samples and all technical requirements in Seller’s proposals, and (d) be merchantable and fit for the purposes sold. This warranty continues in effect after acceptance and is in addition to all warranties offered by Seller or Seller’s manufacturer. Seller assigns to SDI Client all applicable manufacturers’ warranties. Seller shall promptly reimburse SDI and SDI Client for its costs in remedying defects or, at SDI Client’s option, Seller shall remedy such defects at its own expense and with all possible speed. In addition to its other rights, SDI may withhold money otherwise due Seller to cover SDI’s and SDI Client's costs and damages. Seller also represents and warrants that Seller has fully disclosed to SDI and SDI Client 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. To the extent applicable, Seller will supply to SDI material safety data sheets for the Work.
4 - PRICE COMPETITIVENESS.
Seller warrants that prices for the Work are not higher than those charged other customers for the same or similar Work in similar quantities. If SDI Client can purchase Work of like quality at a lower delivered cost than under the applicable Contract, SDI may notify Seller and Seller shall have 15 days to meet such lower cost for an equal quantity of Work. If Seller does not meet such lower cost, SDI Client may purchase such Work from the other source and deduct such quantity from SDI Client’s obligation hereunder, but the applicable Contract otherwise remains unaffected.
5 - PAYMENT/TAXES/LIENS.
Unless otherwise specified in the applicable Contract, payment is due sixty (60) days after invoice date, or upon completion and delivery of the Work, whichever is later. Payment by SDI or SDI Client does not constitute acceptance. Seller’s invoices shall list taxes separately. SDI Client is liable only for taxes which Seller is authorized to collect from SDI Client by law. SDI and SDI Client may withhold payment until Seller, if requested, has furnished satisfactory releases of all liens and claims relating to the Work. Seller shall indemnify and defend SDI and SDI Client from all liens and encumbrances arising out of the Work.
6 - DRAWINGS/SPECIFICATIONS/INSPECTIONS.
SDI and SDI Client shall have access to Seller’s facilities to inspect the Work at all reasonable times. No such approval/inspection shall relieve Seller of its obligations. If requested, Seller shall submit drawings and specifications (“Descriptions”) to SDI for approval by SDI Client. All Descriptions shall be SDI Client’s property, and Seller shall not use or permit others to use such Descriptions for any other work.
7 - INTELLECTUAL PROPERTY MATTERS.
Seller shall indemnify, defend and hold SDI and SDI Client harmless: (a) from claims for infringement of any patent, copyright, trademark, trade name or other intellectual property right because of the manufacture, use, or sale of the Work, and (b) for any costs, expenses, liability and damages, including attorneys’ fees, which SDI Client may incur as a result of any alleged infringement. SDI or SDI Client shall give Seller written notice of any such suit or claim and, at SDI’s or SDI Client’s request, Seller shall promptly assume its defense.
8 - COMPLIANCE WITH LAWS.
Seller represents that the Work will comply with all applicable federal, state and local laws, rules, regulations, executive orders, including but not limited to 38 USC 4212 (formerly 2012) of the Vietnam Era Veterans Readjustment Assistance Act of 1974, as amended, as well as all regulations and requirements issued under the Department of Labor and the Environmental Protection Agency and the requirements of Executive Order 11246, as amended. 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.
9 - CANCELLATION/TERMINATION.
SDI Client may terminate all or part of an applicable Contract for its convenience upon written notice to Seller, which notice may be provided by SDI. The reasonably charges for the portion of the Work already performed hereunder shall be due upon such termination.
10 - CONFIDENTIALITY.
Seller may gain information about SDI’s or SDI Client's operations, plans, equipment, finances, products, processes and customers (“SDI Client Information”). Seller shall cause all SDI Client Information to be kept confidential and shall not be disclosed to others except with SDI Client’s prior written consent. Nothing in this paragraph shall prevent Seller from disclosing information which it can show: (a) is published and in the public domain other than through acts or omissions of Seller, its employees or agents; (b) was rightfully made known to Seller by third parties (other than those acting directly or indirectly for SDI Client), without restriction on disclosure; or (c) was known at the time of entering into the applicable Contract, and was not acquired from SDI Client, or its employees or agents. Seller shall deliver to SDI and SDI Client, upon request, all drawings, specifications, memoranda, notes, materials and all copies containing SDI Client Information. These obligations shall continue beyond the termination of the applicable Contract.
11 - CHANGES.
SDI or SDI Client may change specifications, packaging, delivery and transportation requirements at any time by issuing a change order (a “Change Order”), which may be issued by SDI on SDI Client’s behalf. If the change affects the cost or time required for performance, a fair adjustment will be made and confirmed by SDI on SDI Client’s behalf. Seller shall notify SDI prior to making any changes to raw materials, methods of manufacture, production equipment or locations involved in the performance of the applicable Contract and shall obtain SDI’s written acknowledgement of SDI Client’s consent prior to making any such changes(s). This Contract may be terminated by SDI Client if SDI Client does not consent to Seller’s proposed changes, in which event, SDI shall, on SDI Client’s behalf, deliver to Seller a termination notice.
12 - BUYER’S PREMISES.
If Seller enters SDI Client’s premises, Seller shall: (a) comply with SDI Client’s site rules, practices and policies; (b) indemnify and defend SDI Client, its employees and officers against all liabilities and losses of any kind, including costs, expenses and attorneys’ fees, due to injuries (including death) or damage to persons or property occurring to or caused by Seller, its agents or subcontractors, or any of their employees, such indemnity to include injuries or damage caused by the joint or concurring negligence of SDI Client (but not those caused by the sole negligence of SDI Client); (c) maintain the following minimum insurance: (i) Workers' Compensation - Statutory; (ii) Employer's Liability $1,000,000 each accident/disease-each employee/disease - policy limit; (iii) Commercial General Liability (Bodily Injury, Property Damage, Products and Completed Operations and contractual liability on an occurrence form of policy naming SDI Client as additional insured) - $2,000,000 each occurrence, combined single limit; (iv) Comprehensive or Commercial Automobile Liability (Bodily Injury or Property Damage for owned, non-owned and hired vehicles and naming SDI Client as additional insured) - $1,000,000 each occurrence, combined single limit; (v) Umbrella Liability Insurance - $1,000,000 each occurrence, excess coverage over underlying primary insurance required and naming SDI and SDI Client as additional insured. Each policy provided by Seller will include an endorsement that the underwriters waive all rights of subrogation against SDI and SDI Client, its employees and agents.
13 - ASSIGNMENT/ SUBCONTRACTING/ INDEPENDENT CONTRACTOR.
Seller shall not assign, subcontract or delegate all or any part of the applicable Contract without SDI’s or SDI Client’s prior written consent and any attempt to so assign shall be void. Assignment with consent shall not relieve Seller of any obligations hereunder. Seller is and shall remain an independent contractor.
14 - EXCLUSIVITY.
During the term of SDI’s integrated supply agreement with SDI Client, Supplier will not provide or offer to provide competing integrated supply services to SDI Client.
15 - MISCELLANEOUS.
THIS CONTRACT INCORPORATES THE UNIFORM COMMERCIAL CODE AS ADOPTED IN PENNSYLVANIA, AND SHALL BE CONTROLLED BY AND INTERPRETED ACCORDING TO PENNSYLVANIA LAWS and is the complete understanding and agreement of the parties to the applicable Contract. Any modification, rescission or waiver must be in writing and signed by both parties. A waiver of any breach of these terms shall not waive any other breach. The obligations under sections 3, 6, 7, 10, 12 and 14 of the applicable Contract are of a continuing nature and shall survive any termination of the Contract, any suspension, completion or acceptance of the Work, or final payment to Seller. Seller shall bind all its subcontractors to the terms of the applicable Contract which are applicable to the subcontracted Work.