Purchase Order Conditions for Suppliers |
Purchase Order Conditions
PURCHASE ORDER CONDITIONS 1. ACCEPTANCE OR ACKNOWLEDGMENT. This Purchase Order (this �Order�) becomes a contract either when: (1) Purchaser receives a written acceptance thereof from Seller; or (2) upon Seller making shipment of the goods ordered hereunder. The term �goods� in this Order shall be understood to include materials, components, services and facilities. Although Purchaser requests that acceptance be made on Purchaser�s form of acknowledgment, Purchaser recognizes that Seller may use its own form of acceptance, and in such event, or in event of Seller�s shipment as aforesaid, Seller shall nevertheless be deemed to understand, acknowledge and agree that the terms and conditions of this Order shall bind both parties and that any terms or conditions contained in Seller's own form of acceptance or otherwise stipulated (whether typed, written or printed) shall be deemed to be null and void and of no effect. NO CHANGE TO THE TERMS AND CONDITIONS OF THIS ORDER SHALL BE DEEMED TO BE ACCEPTED BY PURCHASER UNLESS EXPRESSLY AGREED TO IN WRITING BY PURCHASER. Seller, by shipment or delivery as aforesaid, further agrees that notwithstanding its acceptance or acknowledgment is of later date, the terms and conditions of this Order shall govern the contract. 2. PROCESSING OF ORDER. Seller understands and agrees as follows: (a) This Order must not be filled at higher prices or quantities than last quoted or charged; (b) All material must be shipped by the route designated by Purchaser and any additional freight or cartage costs incurred directly or indirectly through Seller failing to observe this condition will be for Seller's account; (c) Seller will render a separate invoice for each order or shipment for the exact quantity and price as agreed in the original purchase order; (d) No charge will be allowed for boxing, packing or crating unless expressly agreed to in writing by Purchaser; (e) Seller will mail invoices and bills of lading to office of mailing, indicating on invoices cash discount terms for prompt payment; (f) Seller will show the number of this Order on all invoices, packages, bills of lading, etc., and all communications in reference thereto; (g) Drafts will not be honored under any circumstances. 3. SELLER'S QUOTATION. Reference in this Order to Seller's quotation does not imply acceptance of any terms and conditions in such quotation unless they are expressly adopted by Purchaser herein. Any terms and conditions in such quotation which amend or add to or are inconsistent with the terms and conditions contained in this Order shall be deemed to be null and void and of no effect. 4. COMPLIANCE WITH LAWS. Seller will comply with all applicable federal, state and local laws, rules and regulations which apply to or, in any manner, affect the operations or activities of Seller, its employees, its subcontractors or agents hereunder, including, without limitation, all applicable federal, state, and local health, safety, and environmental laws and guidelines. In particular, Seller agrees that during the performance of this Order it will not cease to be an employer subject to appropriate state unemployment compensation acts. This Order and any contract arising there from and all transactions contemplated hereby shall be governed by and construed according to the laws of the State of Ohio, and the courts of the State of Ohio and the federal courts sitting in the State of Ohio shall have jurisdiction in any action arising with respect to the transaction. 5. INSPECTION. Except as otherwise agreed in writing, all shipments shall be subject to final inspection by Purchaser after receipt by Purchaser at destination. Final inspection and acceptance by Purchaser shall be conclusive except for (1) defective workmanship or material rejected by Purchaser within one year of date of receipt at destination, and (2) latent defects, fraud and such gross mistakes as amount to fraud. 6. REJECTION. If any of the goods are found at any time to be defective in material or workmanship or otherwise, not in strict conformity with the specifications or requirements of this Order, Seller shall be liable to Purchaser for all damages, consequential or otherwise, arising by reason thereof. Purchaser, in addition to its right to such damages and any other rights which it may have under warranties or otherwise, shall also have the right to reject and return such goods for full credit, all charges collect, including incoming charges. Without limiting any of the foregoing, Purchaser shall have the right to require prompt replacement, repair or correction of defective work or material at Seller's risk and expense; if Seller is unable or unwilling to effect such replacement, repair or correction, Purchaser may do so by using its own facilities or by outside contract, and shall be entitled to charge Seller for excess cost directly or indirectly occasioned thereby. 7. CANCELLATION. The right is reserved to Purchaser to cancel this Order at any time, in whole or in part, upon notice in writing to Seller. The provisions of this clause are without prejudice to the rights of Purchaser if deliveries are in arrears. 8. DELAY. Seller will not be liable for delay in delivery caused by any event in the nature of force majeure, providing it gives Purchaser immediate notice in writing and requests a reasonable extension of time. Seller shall report to Purchaser on request from time to time progress attained performance of the contract and the anticipated date of shipment. Subject to the foregoing, in event of actual or anticipated breach by reason of delay in delivery, Purchaser shall be entitled to terminate the contract without liability to it on account thereof. 9. INDEMNITY. (a) Seller agrees to indemnify Purchaser, its officers, directors, employees, subcontractors or agents for and save and keep each of them harmless of, from and against any and all claims, losses, judgments, damages, costs, liabilities, charges and expenses (including attorney's fees) which may be made against any of them, or which any of them may suffer, sustain, incur or be in any way subjected to, of any nature whatsoever: (I) by reason of injury to, or death of, any person or persons, or damage to or loss of property, arising out of the performance of this Order by Seller or out of anything undertaken� or done in carrying out this Order, or out of the manufacture, purchase, sale, use, construction, installation or supply of the goods to be furnished hereunder; or (II) arising out of any actual or alleged infringement of any patent, copyright or trademark by reason of the manufacture, purchase, sale, use, construction, installation or supply of the goods to be furnished hereunder. Seller shall cause Purchaser to be designated as an additional insured under all policies insuring Seller against claims, losses, damages, costs, liabilities, charges, expenses or judgments of such nature, and shall furnish to Purchaser certificates from its insurance carriers with respect thereto. (b) If the accomplishment of this Order requires the performance of services or labor, Seller agrees to provide and maintain the following minimum insurance coverage with insurance carriers acceptable to Purchaser until the work is completed and accepted by Purchaser, and to furnish certificates from such insurance carriers showing that Seller carries such insurance: (I) Worker's compensation insurance (including coverage under United States Longshoremen's and Harbor Workers Act where applicable) for the statutory limits applicable to the state or states in which the work is to be performed. . (II) general public liability insurance for $500,000 each person, $1,000,000 each accident and $500,000 property damage each accident, including where applicable. coverage for damage caused by blasting, collapse or structural injury or damage to underground utilities, $500,000 each accident and $500,000 aggregate; and (III) automobile public liability insurance for $500,000 each person, $1,000,000 each accident and $500,000 property damage each accident. 10. PROPRIETARY RIGHTS. Seller understands and agrees that the benefits of Purchaser's designs and manufacturing information shall not extend beyond the scope and subject matter of this Order. Seller agrees not to use, distribute, or employ any information obtained from Purchaser in fulfillment of this Order for other customers of Seller or otherwise in connection with Seller's business or to disclose such information to any persons not expressly authorized in writing by Purchaser. 11. PROPERTY FURNISHED BY PURCHASER. Unless otherwise agreed in writing, all tools, equipment or material of every description furnished to Seller by Purchaser, or specifically paid for by Purchaser, and any replacement thereof, or any materials affixed or attached thereto, shall be and remains the personal property of Purchaser. Such property, and whenever practical each individual item thereof, shall be plainly marked or otherwise adequately identified by Seller as "Property of Demag Cranes & Components Corp." and shall be safely stored separate and apart from Seller's property and shall remain free of liens and encumbrances. Seller shall not substitute any property for Purchaser's property and shall not use such property except in filling Purchaser's orders. Such property while in Seller's custody or control shall be held at Seller's risk, shall be kept insured by Seller at Seller's expense, in an amount equal to the replacement cost, with loss payable to Purchaser, and shall be subject to removal at Purchaser's written request, in which event Seller shall prepare such property for shipment and redeliver to Purchaser in the same condition as originally received by Seller, reasonable wear and tear excepted. Purchaser shall have the right at all reasonable times upon prior request to enter Seller's premises to inspect any and all such property. 12. DEFAULT. If Seller defaults in performing any of its obligations to Purchaser under this Order or any other agreement, Purchaser may, at its option, and without incurring any liability thereby, elect to terminate this Order and agreement or to terminate any or all other agreements with Seller or to terminate this Order and agreement together with any or all such other agreements. Furthermore, in the event of default, Purchaser shall have a right to all damages sustained, including, without limitation, loss of profits. Purchaser shall also, in addition to any rights or remedies provided for herein, have all of the rights and remedies with respect to defaults by a seller as provided for under the Uniform Commercial Code in effect in the State of Ohio. 13. CHANGES. Purchaser shall have the right to make any change or changes in this Order at any time. Any increase or decrease in price resulting from such changes shall be computed, where feasible, by reference to prices for related units under this Order, and this Order will be modified in writing accordingly. Seller agrees that any claim for adjustment in its favor must be made within ten days time after the change is ordered. 14. ADVERTISING. Seller shall not, except with the prior written consent of Purchaser, release information relating to this Order for advertising, promotional or technical purposes or otherwise give it publicity in any fashion; nor, without the prior written consent of Purchaser, shall the name of Purchaser, or any firm related to Purchaser be used for, or in connection with, any advertising or promotional purpose of Seller. 15. EXTRAS. No charges for extras will be allowed unless they have been ordered in writing by Purchaser and the price agreed upon. 16. MISCELLANEOUS. This Order sets forth the entire understanding and agreement of Purchaser and Seller in respect of the subject matter hereof and prior understandings between the parties hereto, together will all representations and obligations of such parties in respect of such subject matter, shall be superseded by and merged into this Order. No provision of this Order may be waived, changed, terminated, modified, discharged or rescinded, orally or otherwise, except by a writing signed by the party to be charged by any such waiver, change, termination, modification, discharge or rescission. No waiver of any breach of any provision of this Order shall constitute a waiver of any similar or dissimilar prior or subsequent breach or shall constitute an amendment or modification of this Order, or any provision hereof, unless expressly stated to the contrary in writing. If any provision of this Order shall be held to be unenforceable or inapplicable in any respect, such holding shall not affect the enforceability of any other provision of this Order, under any other circumstances. The provisions of this Order shall bind and ensure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and assigns.
