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- SELLER’S ACCEPTANCE OF BUYER’S TERMS AND CONDITIONS OF PURCHASE - In consideration for Buyer’s order herein, Seller agrees that any sales contract entered into between Buyer and Seller with respect to Goods (and parts, components, and accessories thereof) shall be governed by and subject to the terms and conditions set forth on either side of this Purchase Order (the “Terms’'), which shall control over any inconsistent additional or different terms or conditions which appear on any quotation, acknowledgment, proposal, or other communication received from the Seller, written or otherwise. Seller's delivery of Goods or commencement of Services hereunder, or notice to Buyer of same, shall constitute Seller's acceptance of each of the Terms and no others, prior dealings or usage of trade notwithstanding.
- SHIPMENTS - Seller shall promptly ship the Goods to Buyer (and perform the Services) according to the schedule and by the method and/or route specified in the Terms, properly packaged and/or crated. Seller shall send the Buyer a time of shipment and itemized packing slip with respect to each shipment to Buyer or Buyer’s designee, giving order number, name of shipper, detailed description and list of goods shipped, and method of shipment, together with Bill of Lading.
- PRICES/INVOICES - The prices stated hereon shall constitute the entire consideration due to Seller for (a) the Goods or Services, and (b) freight, crating, handling, packaging, warranties, and insurance charges with respect to the Goods and Services, and Seller shall pay and be responsible for all items set forth in (b) unless specifically stated otherwise on the front hereof. The amount of any such items which Buyer has agreed to pay (supported by original documents as requested by Buyer) shall be shown separately on Seller's invoice, which shall be mailed with or immediately after shipment. Buyer shall pay Seller's invoice within forty-five (45) days after receipt of Goods. Buyer shall not be liable for any damages, interest, or late or penalty charges for failure to pay Seller’s invoice when due. Any discount will be deducted from the gross amount of Seller’s invoice.
- DEFAULT/BUYER’S REMEDY - Seller shall be in default hereunder if: (a) Seller breaches or fails to perform any of the Terms (whether material or not); or (b) there exist facts which, in Buyer's sole judgment, indicate that Seller may not perform under this Purchase Order in accordance with Terms, and Seller does not cure such situation within a period of ten (10) days after the date of notice from Buyer. On such default, Buyer, in addition to all other remedies at law or in equity, shall be entitled to recover from Seller any and all damages in accordance with law, plus interest thereon at the rate of twelve percent (12%) per annum or the maximum rate permitted by law, whichever is greater, plus Buyer’s attorney’s fees and may not at no cost or liability cancel Buyer's obligations hereunder. Seller shall continue performance of any part of this Purchase Order which is not canceled.
- WARRANTIES/INDEMNIFICATION - Seller, in addition to all other express or implied warranties, warrants that (a) all Goods will be new, free from manufacturing, design, and other defects, will exactly conform to the samples, models, specifications, drawings, and/or descriptions furnished, will be and remain in good and operable condition for the useful use thereof, and will be fit and sufficient for the purpose intended by Buyer, and (b) all Services will be performed in a workmanlike manner, free from all defects. All such warranties, both express and implied, shall survive inspection, tests, and acceptance and payment by Buyer. Seller represents and warrants that Goods have been and/or will be manufactured, constructed, and sold, that Services have been and/or will be provided, and that prices charged are in strict compliance with all present and future federal, state and local laws, ordinances, regulations, orders, and generally recognized or authoritative standards, including without limitation the Fair Labor Standards Act of 1938. as amended, and the Occupational Health and Safety Act of 1970, as amended, and regulations thereunder. Seller shall indemnify, defend, and hold harmless Buyer and all affiliated or controlled entities from and against all damages, claims, obligations, penalties (civil or criminal), and all other liabilities, including reasonable attorneys' fees, arising out of or pertaining to: (i) any breach or violation by Seller of any warranty representation, covenant, or agreement hereunder, (ii) Buyer;s resale of Seller’s product, (iii) any and all damage to property of others and of the parties hereto, and all injuries to or death of any person(s) relating to or arising from, in whole or in part, any manufacturing, design, or other defect, failure to warn, improper handling, improper operating or installation instructions, or other wrongful or negligent act or omission of Seller, with respect to any of the Goods or Services.
- FORCE MAJEURE - Buyer may, at Buyer's option, suspend performance for a reasonable time, from time to time, on all or any portion of this Purchase Order at any time or terminate all or any portion of this Purchase Order at any time if Buyer's performance is limited or if Buyer is unable to perform because of force majeure, which shall include, without limitation, acts of God, fires, explosions, floods, civil commotions, labor disputes, strikes or other industrial disturbances, public enemies, delays of carriers, accidents to machinery, failure or curtailment or delay of Buyer’s operations, restraints of fuel or energy, imposition of governmental priorities, regulations or other governmental restrictions or controls, whether valid or invalid, excessive or lack of customers' directions or customers’ requirements, and all interruptions of business beyond the control of Buyer, whether such causes are related or unrelated, similar or dissimilar, to any of the foregoing. In the event of such suspension or termination, Seller's sole remedy shall be an extension of time for performance as Buyer may require, and in no event shall Buyer be liable to Seller for any greater quantity of Goods or Services, additional or higher prices or costs, or for any damages or losses, direct, consequential, punitive, or otherwise. Seller shall continue performance of any portion of this Purchase Order which is not so terminated or suspended. Nothing contained herein shall prevent Buyer from pursuing the remedies arising on Seller's default as provided in Clause 4 above after suspending or terminating this Purchase Order; in such event, Clause 4 shall apply in lieu of this clause.
- RISK OF LOSS/INSPECTION - Seller assumes all risk of loss of or damages to the Goods until delivery of all Goods to and acceptance by Buyer or Buyer's designee at its facility. All Goods may, at Seller's cost, be inspected, tested, and otherwise evaluated by Buyer at all times and places, which shall not dimmish, waive, qualify, or affect any of Seller's express or implied warranties hereunder or otherwise. Any or all nonconforming or damaged Goods may be returned to Seller or otherwise disposed of at Seller's expense, including costs of loading, reloading, packing, and freight. Such Goods may not be replaced by Seller without Buyer's written instructions.
- CHANGES/CANCELLATIONS - Buyer may, at any time, by a written order make changes within the general scope of Buyer's Purchase Order in any one or more of the following: (i) drawings, designs, or specifications where the Goods or Services are to be specifically manufactured or permitted for Buyer, (ii) method of shipment or packing, and (iii) place of delivery or performance. If any such change causes an increase or decrease in the cost of or the time required for the Goods or the performance of Services, an equitable adjustment shall be made in the contract price or delivery schedule, or both, and the Terms shall be modified in writing accordingly. Any claims by Seller for adjustment under this clause must be asserted within five (5) days from the date of receipt by Seller of the notification of change provided, however, that Buyer shall not be bound by any such claim in the absence of specific agreement. Where the cost of property made obsolete or excess as a result of a change is included in Seller's claim for adjustment, Buyer shall have the right to prescribe the manner of disposition of such property. Nothing herein shall excuse Seller from proceeding with this Purchase Order as changed. Buyer shall have the right to cancel any Purchase Order before shipment of Goods or performance of Services unless the Goods have been specifically manufactured for Buyer.
- PATENT TRADEMARK/INFRINGEMENT - Seller warrants that the Goods and their use thereof do not and will not infringe on any United States letters patent, trademark, copyright, or proprietary information right, and where Seller knows or has reason to believe that the Goods will be resold or used in any foreign country do not and will not result in such infringement in such country. Seller further agrees to indemnify Buyer from and against any and all damages, costs, expenses, liabilities, and obligations for such infringement including without limitation attorneys' fees arising from any claim, charge, or suit against Buyer or Seller alleging such infringement.
- SITE PERFORMANCE - If this Purchase Order includes any Services to be performed by Seller on premises or designated by Buyer, Seller shall: (a) perform such work promptly in a workmanlike manner and free of defects, coordinating such services with Buyer and Buyer's contractors (with terms and conditions) and with carriers as Buyer shall deem advisable and where required by Buyer, with Buyer named as additional insured and requiring ten (10) days written notice to Buyer prior to cancellation, modification, or amendment and deliver to Buyer evidence of such insurance in a form satisfactory to Buyer, and (c) furnish Buyer on request a Waiver and/or Release of Liens in a form satisfactory to Buyer.
- GENERAL CONTRACTS - This Purchase Order may be used in connection with the ordering of Goods to be furnished by Seller under any general contract between Buyer and Seller or between Buyer and its customer and shall be supplementary to such general contract. The terms and conditions of any such general contract shall prevail if inconsistent herewith and are incorporated herein by this reference unless otherwise agreed upon in writing.
- MISCELLANEOUS -
- Seller's obligations hereunder shall not be severable or divisible, notwithstanding the acceptance of or payment for partial delivery or any authorization of installment deliveries.
- No delay or failure on the part of Buyer in exercising any right or remedy under this Purchase Order and no partial or single exercise thereof shall constitute a waiver of any such or any other right or remedy.
- If any term hereof shall be illegal, void, or unenforceable, the remainder shall continue in full force and effect.
- All rights and remedies of Buyer under this Purchase Order shall be cumulative and not exclusive and shall be in addition to all other rights of law or in equity whether set forth herein or not.
- Under no circumstances shall Buyer be liable to Seller hereunder for incidental or consequential damages whether for breach of contract, property damages, personal injury, death, or otherwise.
- In the event of any conflict between printed Terms and typed, written, or stamped Terms, the latter shall govern.
- Any notice to Buyer shall be given by certified mail, return receipt requested, to Buyer’s address set forth herein or otherwise as Buyer shall designate.
- No modification, amendment, rescission, discharge, abandonment, substitution, or waiver of this Purchase Order shall be binding upon Buyer unless signed by Buyer's Purchasing Agent or his designee.
- This Purchase Order shall constitute the entire understanding of the parties and shall supersede any prior written or oral agreements or understandings between the parties respecting the subject matter hereof. It shall not be amended or changed except by a written agreement signed by the parties hereto.
- Seller may not assign all or any part of this Purchase Order or any payments becoming due hereunder without prior written consent of Buyer, and any purported assignment shall be null and void.
- Seller waives the right to jury trial with respect hereto.
- All words shall be construed to be of such number and gender as circumstances require.
- No action may be brought by Seller after one year of the date of accrual.
- Time is of the essence with respect hereto.
- GOVERNING LAW/CONSENT TO JURISDICTION - The terms set forth herein shall be construed under and in accordance with the laws of the Commonwealth of Pennsylvania. Any state or federal court in the Federal District Court, Eastern District of Pennsylvania, shall have exclusive jurisdiction and venue, to which Seller hereby consents, over the subject matter hereof, and mailing to either party by certified or registered mail shall constitute lawful and valid service of process.
