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AMERICAN CABINETRY COLLECTION PURCHASE ORDER TERMS AND CONDITIONS
1. ACCEPTANCE – AGREEMENT
These terms and conditions govern all Purchase Orders issued by Purchaser to the Seller indicated on the Purchase Order. Seller’s commencement of work on the goods subject to any Purchase Order or shipment of such goods, whichever occurs first, shall constitute acceptance of the Purchase Order and these Terms and Conditions. Any acceptance of a Purchase Order is limited to the express terms contained on the face of any applicable Purchase Order and these Terms and Conditions (the “Contract Terms). Unless expressly agreed to in writing by an authorized representative of Purchaser, any proposal for additional or different terms or any attempt by Seller to vary in any degree any of the terms of this offer in Seller’s acceptance is hereby objected to and rejected and these Contract Terms shall be the complete and exclusive statement between Seller and Purchaser.
2. TERMINATION FOR CONVENIENCE OF PURCHASER
Purchaser reserves the right to terminate any Purchase Order or any part thereof for its sole convenience upon giving notice to Seller. In the event of such termination, Seller shall immediately stop all work, and shall immediately cause any of its suppliers or subcontractors to cease such work. Purchaser shall be liable to Seller only for services satisfactorily performed or conforming goods delivered prior to notice of termination. Seller shall neither be paid for any work done after receipt of the notice of termination nor for any costs incurred by Seller, Seller’s suppliers or subcontractors, including costs of raw materials.
3. TERMINATION FOR CAUSE
Purchaser may also terminate any Purchase Order or any portion thereof for cause in the event Seller fails to comply with any of the Contract Terms. In addition, deterioration in Seller’s financial condition, absent reasonable assurances of future performance, shall allow Purchaser to terminate any Purchase Order for cause.
4. PROPRIETARY INFORMATION – CONFIDENTIALITY – ADVERTISING
Seller shall consider all information furnished by Purchaser to be confidential and shall not disclose any such information to any other person or use such information itself for any purpose other than performing its obligations under the Purchase Order. This paragraph shall apply to all drawings, specifications, or other documents prepared by Seller for Purchaser in connection with the Purchase Order. Seller shall not advertise or publish the fact the Purchaser has contracted to purchase goods from Seller, nor shall any information relating to the order be disclosed without Purchaser’s written permission. Upon request of Purchaser, Seller shall return or destroy all such information. Seller’s obligations under this paragraph survive the cancellation, termination, or completion of the Purchase Order.
5. WARRANTY
Seller warrants that all goods and services furnished to Purchaser as a result of any Purchase Order have been manufactured, distributed, and delivered in compliance with all applicable federal, state and local laws, regulations and ordinances. Seller expressly warrants that all goods or services furnished pursuant to this Purchase Order shall (i) conform to all applicable specifications, descriptions and appropriate standards and will be free from defects in material and workmanship, (ii) be merchantable, safe and appropriate for the purpose for which the good services of that kind are normally used, and (iii) be free and clear of all liens and encumbrances, good title thereto being in Seller. If Seller knows or has reason to know the particular purpose for which Purchaser intends to use the goods or services, Seller warrants that such goods or services will be fit for such particular purpose. Seller warrants that goods or services furnished hereunder will conform in all respects to samples previously provided and to the most current specifications. Seller’s warranty shall run to Purchaser, its successors, assigns and customers, and users of goods sold by Purchaser pursuant to this Purchase Order. In the event of failure of Seller to correct defects in or replace nonconforming goods or services promptly, Purchaser, after reasonable notice to Seller, may make such corrections, replace such goods or services and charge Seller for the cost incurred by Purchaser in doing so.
6. PRICE
Seller warrants that the prices for the goods sold hereunder are not less favorable than those currently extended to any other customer for the same or similar goods in similar quantities after taking into effect all discounts and rebates. In the event Seller reduces its price for such goods during the term of any Purchase Order, Seller agrees to reduce its price for such goods during the term of any Purchase Order, Seller agrees to reduce the prices hereof correspondingly. Seller warrants that the prices shown on the Purchase Order shall be complete, and no increase in prices or additional charges of any type, including surcharges, shall be added without Purchaser’s express written consent. Unless otherwise stated in the Purchase Order, delivery of goods shall be DAP destination (Purchaser’s plant location) with Seller to incur freight, boxing, packing or other charges.
7. FORCE MAJEURE
Purchaser may delay receipt or acceptance of goods of services pursuant to this Purchase Order if the delay is occasioned by causes beyond its control. Seller shall hold such goods at the direction of the Purchaser and shall deliver them when the cause affecting the delay has been removed. Purchaser shall be responsible only for Seller’s direct additional costs of holding the goods delaying performance hereunder at Purchaser’s request.
8. INDEMNIFICATION
Seller shall, at Seller’s sole cost and expense, release, defend, indemnify and hold harmless Purchaser, its directors, officers, agents, and employees from, and against, any and all damages, liabilities, claims. losses, and expenses (including reasonable attorney fees) arising out of, or resulting in any way from (i) any alleged defect or non-conformity in the goods or services purchased hereunder, (ii) any act of omission of Seller, its agents, employees, or subcontractors, (iii) any recall of the goods in conjunction with the Consumer Products Safety Commission, or (iv) any claim that the goods or services infringe a patent, copyright, trademark, trade secret or other intellectual property right of a third party.
9. INSURANCE
Seller agrees to carry and to furnish certificates from its insurance carrier to Purchaser showing that it carries insurance in the following minimum limits: (a) worker’s compensation – statutory limits for states in which the work is to be performed, (b) general liability with minimum limits of $1,000,000 each occurrence, and in the aggregate (c) auto liability with minimum limits of $1,000,000 each occurrence and in the aggregate. Seller agrees to obtain and provide to Purchaser certificates reflecting vendor’s endorsements under such insurance policies naming Purchaser as an additional insured thereunder. All policies of insurance specified herein shall provide, at the request of Purchaser, that the coverage thereunder shall not be terminated without at least ten (10) days’ prior written notice to Purchaser.
10. INSPECTION/ TESTING
Payment for or receipt of the goods delivered hereunder shall not constitute acceptance thereof. Purchaser shall have the right to inspect such goods and reject any of all of such goods which are in the Purchaser’s sole judgment defective or non-conforming. Goods rejected hereunder may be returned to Seller at its expense, and, in addition to Purchaser’s other rights, Purchaser may charge Seller all expenses of unpacking, examining, repacking and reshipping such goods. In the event Purchaser received goods whose defects or non-conformity is not apparent on examination, Purchaser reserves the right to reject or revoke any acceptance of such goods and to require replacement as well as payment of damages. If any inspection or test is to be made on the premises of Seller, Seller without additional charge shall provide all reasonable facilities and assistance for the safety and convenience to the inspectors in the performance of their duties.
11. ENTIRE AGREEMENT
Except as provided in written contract executed by both Purchaser and Seller, these Contract Terms constitute the entire agreement between the parties concerning the goods and/or services specified herein. The terms and provisions hereof may not be modified in the absence of the prior express written consent of Purchaser.
12. ASSIGNMENTS AND SUBCONTRACTING
No part of this order may be assigned or subcontracted without the prior written approval of Purchaser.
13. SET – OFF
All claims for money by Seller against Purchaser shall be subject to deduction or offset by any claim for money of Purchaser against Seller arising
out of this or any other transaction.14. REMEDIES AND WAIVER
Purchaser’s remedies shall be cumulative and shall include any and all remedies allowed by law or equity. Purchaser’s failure to insist on performance of any of the terms of conditions herein or to exercise any right or privilege or Purchaser’s waiver of any breach hereunder shall not thereafter waive any other terms, conditions, or privileges, whether of the same or similar type.15. DELIVERY
Time is of the essence hereof, and if the delivery of goods or services is not completed by the date set forth in the Purchase Order, Purchasers reserves the rights and remedies, to terminate this Purchase Order and to purchase substitute goods or services elsewhere and charge Seller with any loss incurred. No partial shipments may be made without Purchaser’s written consent. Purchaser has the right to cancel any outstanding balance. Goods supplied in excess of quantities called for hereunder may be returned to Seller at its expense, and, in addition to Purchaser’s other rights, Purchaser may charge Seller all expenses of unpacking, examining, repacking and reshipping such good. Seller shall report any delays in delivery schedule immediately as they become known to the Seller. Purchaser may, upon reasonable notice to Seller, cancel schedules specified in the Purchase Order.
16. LIMITATION ON PURCHASER’S LIABILITY – STATUTE OF LIMITATIONS
IN NO EVENT WILL PURCHASER BE LIABLE TO SELLER OR ANY THIRD PARTY, IN CONTRACT, TORT OR OTHERWISE, FOR ANY LOSS OF PROFITS OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING FROM OR AS A RESULT OF THIS PURCHASE ORDER OR ANY AGREEMENT BETWEEN THE PARTIES RELATING TO THE PRODUCTS OR SERVICES SUPPLIED HEREUNDER, EVEN IF PURCHASER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Any action resulting from any breach on the part of Purchaser as to goods or services delivered hereunder must be commenced within one year after the cause of action has accrued.
17. SHIPPING PACKING AND RISK OF LOSS
All goods shall be suitably packed, marked with Purchaser’s purchase order number and shipped in accordance with shipping instructions specified herein and other wise in accordance with the requirements of common carriers so as to obtain the lowest transportation cost. No charge shall be made to Purchaser for boxing, packing, carting unless specifically itemized on the face hereof. Seller shall be liable to Purchaser for any loss or damage resulting from Seller’s failure to act so as to provide adequate protection during shipment. Unless the Purchase Order indicates that the goods are Ex Works, risk of loss or damage in transit shall be Seller’s sole responsibility and liability until conforming goods are delivered to and accepted by Purchaser. Additional expenses, with other shipping instructions, or improper description of the shipment and shipping documents shall be assumed by Seller. Purchaser’s purchase order number must be placed on all invoices and shipping papers.
18. PURCHASER PROPERTY
Any materials, parts or tools furnished by Purchaser with a Purchase Order shall be deemed to be held by Seller on consignment, shall remain the property of Purchaser and shall be returned to Purchaser on demand. Seller agrees to maintain said materials in proper working order and repair and to protect them against loss or damage. Seller further agrees to mark or tag said materials (insofar as practical) to clearly indicate Purchaser’s ownership thereof.
19. TAXES
Purchaser shall not be liable for any taxes, duties, customs or assessments in connection with the purchase and/or delivery of goods ordered
hereunder, except such as are expressly set forth on the face hereof.20. CHANGES
Purchaser may make changes in drawings, specifications, quantities, delivery schedules or methods of shipment or packaging on any item at any time. If such changes result in an increase or decrease in costs, and equitable adjustment of price and delivery schedule may be made, or Purchaser may, as its option, terminate the Purchase Order if agreement on an equitable adjustment cannot be reached. Seller must assert claims for equitable adjustment within ten (10) days of the change order. This order together with any change orders or instructions approved by Purchaser in writing shall constitute one integrated contract.
21. WAIVERS OF LIEN
Seller shall furnish all necessary lien waivers, affidavits, or other documents required to keep the property and premises of Purchaser, or Purchaser’s customers or assignees, free from all liens, claims, encumbrances or assessments arising out of the furnishing of labor, material or equipment by any party or entity in regard to the performance of this Purchase Order, as payments are made from time to time hereunder.
22. EQUAL OPPORTUNITY CLAUSE, FAIR LABOR STANDARDS ACT, AND COMPLIANCE WITH OTHER RELEVANT FEDERAL LAWS
By acceptance of this Purchase Order, Seller hereby warrants and represents to Purchaser that Seller shall comply with the Fair Labor Standards Act and all other applicable federal, state, and local laws, regulations and orders and shall, upon request, furnish to Purchaser a certificate to such effect. The Equal Opportunity Clause in Title 41; Part 60-1.4 of the Code of Federal Regulations (Paragraphs 1-7 of President’s Executive Order 11246), the Employment of the Handicapped Clause in Title 41, Part 60-741.4, of the Code of Federal Regulations, are incorporated herein by reference if and to the extent applicable.
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DESIGN-CRAFT CABINETS PURCHASE ORDER TERMS AND CONDITIONS
1. ACCEPTANCE – AGREEMENT
These terms and conditions govern all Purchase Orders issued by Purchaser to the Seller indicated on the Purchase Order. Seller’s commencement of work on the goods subject to any Purchase Order or shipment of such goods, whichever occurs first, shall constitute acceptance of the Purchase Order and these Terms and Conditions. Any acceptance of a Purchase Order is limited to the express terms contained on the face of any applicable Purchase Order and these Terms and Conditions (the “Contract Terms). Unless expressly agreed to in writing by an authorized representative of Purchaser, any proposal for additional or different terms or any attempt by Seller to vary in any degree any of the terms of this offer in Seller’s acceptance is hereby objected to and rejected and these Contract Terms shall be the complete and exclusive statement between Seller and Purchaser.
2. TERMINATION FOR CONVENIENCE OF PURCHASER
Purchaser reserves the right to terminate any Purchase Order or any part thereof for its sole convenience upon giving notice to Seller. In the event of such termination, Seller shall immediately stop all work, and shall immediately cause any of its suppliers or subcontractors to cease such work. Purchaser shall be liable to Seller only for services satisfactorily performed or conforming goods delivered prior to notice of termination. Seller shall neither be paid for any work done after receipt of the notice of termination nor for any costs incurred by Seller, Seller’s suppliers or subcontractors, including costs of raw materials.
3. TERMINATION FOR CAUSE
Purchaser may also terminate any Purchase Order or any portion thereof for cause in the event Seller fails to comply with any of the Contract Terms. In addition, deterioration in Seller’s financial condition, absent reasonable assurances of future performance, shall allow Purchaser to terminate any Purchase Order for cause.
4. PROPRIETARY INFORMATION – CONFIDENTIALITY – ADVERTISING
Seller shall consider all information furnished by Purchaser to be confidential and shall not disclose any such information to any other person or use such information itself for any purpose other than performing its obligations under the Purchase Order. This paragraph shall apply to all drawings, specifications, or other documents prepared by Seller for Purchaser in connection with the Purchase Order. Seller shall not advertise or publish the fact the Purchaser has contracted to purchase goods from Seller, nor shall any information relating to the order be disclosed without Purchaser’s written permission. Upon request of Purchaser, Seller shall return or destroy all such information. Seller’s obligations under this paragraph survive the cancellation, termination, or completion of the Purchase Order.
5. WARRANTY
Seller warrants that all goods and services furnished to Purchaser as a result of any Purchase Order have been manufactured, distributed, and delivered in compliance with all applicable federal, state and local laws, regulations and ordinances. Seller expressly warrants that all goods or services furnished pursuant to this Purchase Order shall (i) conform to all applicable specifications, descriptions and appropriate standards and will be free from defects in material and workmanship, (ii) be merchantable, safe and appropriate for the purpose for which the good services of that kind are normally used, and (iii) be free and clear of all liens and encumbrances, good title thereto being in Seller. If Seller knows or has reason to know the particular purpose for which Purchaser intends to use the goods or services, Seller warrants that such goods or services will be fit for such particular purpose. Seller warrants that goods or services furnished hereunder will conform in all respects to samples previously provided and to the most current specifications. Seller’s warranty shall run to Purchaser, its successors, assigns and customers, and users of goods sold by Purchaser pursuant to this Purchase Order. In the event of failure of Seller to correct defects in or replace nonconforming goods or services promptly, Purchaser, after reasonable notice to Seller, may make such corrections, replace such goods or services and charge Seller for the cost incurred by Purchaser in doing so.
6. PRICE
Seller warrants that the prices for the goods sold hereunder are not less favorable than those currently extended to any other customer for the same or similar goods in similar quantities after taking into effect all discounts and rebates. In the event Seller reduces its price for such goods during the term of any Purchase Order, Seller agrees to reduce its price for such goods during the term of any Purchase Order, Seller agrees to reduce the prices hereof correspondingly. Seller warrants that the prices shown on the Purchase Order shall be complete, and no increase in prices or additional charges of any type, including surcharges, shall be added without Purchaser’s express written consent. Unless otherwise stated in the Purchase Order, delivery of goods shall be DAP destination (Purchaser’s plant location) with Seller to incur freight, boxing, packing or other charges.
7. FORCE MAJEURE
Purchaser may delay receipt or acceptance of goods of services pursuant to this Purchase Order if the delay is occasioned by causes beyond its control. Seller shall hold such goods at the direction of the Purchaser and shall deliver them when the cause affecting the delay has been removed. Purchaser shall be responsible only for Seller’s direct additional costs of holding the goods delaying performance hereunder at Purchaser’s request.
8. INDEMNIFICATION
Seller shall, at Seller’s sole cost and expense, release, defend, indemnify and hold harmless Purchaser, its directors, officers, agents, and employees from, and against, any and all damages, liabilities, claims. losses, and expenses (including reasonable attorney fees) arising out of, or resulting in any way from (i) any alleged defect or non-conformity in the goods or services purchased hereunder, (ii) any act of omission of Seller, its agents, employees, or subcontractors, (iii) any recall of the goods in conjunction with the Consumer Products Safety Commission, or (iv) any claim that the goods or services infringe a patent, copyright, trademark, trade secret or other intellectual property right of a third party.
9. INSURANCE
Seller agrees to carry and to furnish certificates from its insurance carrier to Purchaser showing that it carries insurance in the following minimum limits: (a) worker’s compensation – statutory limits for states in which the work is to be performed, (b) general liability with minimum limits of $1,000,000 each occurrence, and in the aggregate (c) auto liability with minimum limits of $1,000,000 each occurrence and in the aggregate. Seller agrees to obtain and provide to Purchaser certificates reflecting vendor’s endorsements under such insurance policies naming Purchaser as an additional insured thereunder. All policies of insurance specified herein shall provide, at the request of Purchaser, that the coverage thereunder shall not be terminated without at least ten (10) days’ prior written notice to Purchaser.
10. INSPECTION/ TESTING
Payment for or receipt of the goods delivered hereunder shall not constitute acceptance thereof. Purchaser shall have the right to inspect such goods and reject any of all of such goods which are in the Purchaser’s sole judgment defective or non-conforming. Goods rejected hereunder may be returned to Seller at its expense, and, in addition to Purchaser’s other rights, Purchaser may charge Seller all expenses of unpacking, examining, repacking and reshipping such goods. In the event Purchaser received goods whose defects or non-conformity is not apparent on examination, Purchaser reserves the right to reject or revoke any acceptance of such goods and to require replacement as well as payment of damages. If any inspection or test is to be made on the premises of Seller, Seller without additional charge shall provide all reasonable facilities and assistance for the safety and convenience to the inspectors in the performance of their duties.
11. ENTIRE AGREEMENT
Except as provided in written contract executed by both Purchaser and Seller, these Contract Terms constitute the entire agreement between the parties concerning the goods and/or services specified herein. The terms and provisions hereof may not be modified in the absence of the prior express written consent of Purchaser.
12. ASSIGNMENTS AND SUBCONTRACTING
No part of this order may be assigned or subcontracted without the prior written approval of Purchaser.
13. SET – OFF
All claims for money by Seller against Purchaser shall be subject to deduction or offset by any claim for money of Purchaser against Seller arising
out of this or any other transaction.14. REMEDIES AND WAIVER
Purchaser’s remedies shall be cumulative and shall include any and all remedies allowed by law or equity. Purchaser’s failure to insist on performance of any of the terms of conditions herein or to exercise any right or privilege or Purchaser’s waiver of any breach hereunder shall not thereafter waive any other terms, conditions, or privileges, whether of the same or similar type.15. DELIVERY
Time is of the essence hereof, and if the delivery of goods or services is not completed by the date set forth in the Purchase Order, Purchasers reserves the rights and remedies, to terminate this Purchase Order and to purchase substitute goods or services elsewhere and charge Seller with any loss incurred. No partial shipments may be made without Purchaser’s written consent. Purchaser has the right to cancel any outstanding balance. Goods supplied in excess of quantities called for hereunder may be returned to Seller at its expense, and, in addition to Purchaser’s other rights, Purchaser may charge Seller all expenses of unpacking, examining, repacking and reshipping such good. Seller shall report any delays in delivery schedule immediately as they become known to the Seller. Purchaser may, upon reasonable notice to Seller, cancel schedules specified in the Purchase Order.
16. LIMITATION ON PURCHASER’S LIABILITY – STATUTE OF LIMITATIONS
IN NO EVENT WILL PURCHASER BE LIABLE TO SELLER OR ANY THIRD PARTY, IN CONTRACT, TORT OR OTHERWISE, FOR ANY LOSS OF PROFITS OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING FROM OR AS A RESULT OF THIS PURCHASE ORDER OR ANY AGREEMENT BETWEEN THE PARTIES RELATING TO THE PRODUCTS OR SERVICES SUPPLIED HEREUNDER, EVEN IF PURCHASER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Any action resulting from any breach on the part of Purchaser as to goods or services delivered hereunder must be commenced within one year after the cause of action has accrued.
17. SHIPPING PACKING AND RISK OF LOSS
All goods shall be suitably packed, marked with Purchaser’s purchase order number and shipped in accordance with shipping instructions specified herein and other wise in accordance with the requirements of common carriers so as to obtain the lowest transportation cost. No charge shall be made to Purchaser for boxing, packing, carting unless specifically itemized on the face hereof. Seller shall be liable to Purchaser for any loss or damage resulting from Seller’s failure to act so as to provide adequate protection during shipment. Unless the Purchase Order indicates that the goods are Ex Works, risk of loss or damage in transit shall be Seller’s sole responsibility and liability until conforming goods are delivered to and accepted by Purchaser. Additional expenses, with other shipping instructions, or improper description of the shipment and shipping documents shall be assumed by Seller. Purchaser’s purchase order number must be placed on all invoices and shipping papers.
18. PURCHASER PROPERTY
Any materials, parts or tools furnished by Purchaser with a Purchase Order shall be deemed to be held by Seller on consignment, shall remain the property of Purchaser and shall be returned to Purchaser on demand. Seller agrees to maintain said materials in proper working order and repair and to protect them against loss or damage. Seller further agrees to mark or tag said materials (insofar as practical) to clearly indicate Purchaser’s ownership thereof.
19. TAXES
Purchaser shall not be liable for any taxes, duties, customs or assessments in connection with the purchase and/or delivery of goods ordered
hereunder, except such as are expressly set forth on the face hereof.20. CHANGES
Purchaser may make changes in drawings, specifications, quantities, delivery schedules or methods of shipment or packaging on any item at any time. If such changes result in an increase or decrease in costs, and equitable adjustment of price and delivery schedule may be made, or Purchaser may, as its option, terminate the Purchase Order if agreement on an equitable adjustment cannot be reached. Seller must assert claims for equitable adjustment within ten (10) days of the change order. This order together with any change orders or instructions approved by Purchaser in writing shall constitute one integrated contract.
21. WAIVERS OF LIEN
Seller shall furnish all necessary lien waivers, affidavits, or other documents required to keep the property and premises of Purchaser, or Purchaser’s customers or assignees, free from all liens, claims, encumbrances or assessments arising out of the furnishing of labor, material or equipment by any party or entity in regard to the performance of this Purchase Order, as payments are made from time to time hereunder.
22. EQUAL OPPORTUNITY CLAUSE, FAIR LABOR STANDARDS ACT, AND COMPLIANCE WITH OTHER RELEVANT FEDERAL LAWS
By acceptance of this Purchase Order, Seller hereby warrants and represents to Purchaser that Seller shall comply with the Fair Labor Standards Act and all other applicable federal, state, and local laws, regulations and orders and shall, upon request, furnish to Purchaser a certificate to such effect. The Equal Opportunity Clause in Title 41; Part 60-1.4 of the Code of Federal Regulations (Paragraphs 1-7 of President’s Executive Order 11246), the Employment of the Handicapped Clause in Title 41, Part 60-741.4, of the Code of Federal Regulations, are incorporated herein by reference if and to the extent applicable.
23. We may, at our sole discretion, provide you with certain materials produced by us including without limitation, digital images, video, audio, and printed materials (“Assets”). You acknowledge that we maintain all ownership rights to the Assets. The Assets are provided under a non-exclusive and revocable license from us to you for the sole purpose of use in promoting our products. The Assets shall be used in a reasonable manner and, if instructions are provided by us, in the manner requested thereby, any we may, at our sole discretion, instruct you at any time to cease any use of the Assets. You may not translate, recast, edit, alter, modify, or create any derivative work without our express written permission and may not license, sublicense, or otherwise grant the rights given to you under this license to a third-party. You will protect the Assets and will provide us notice of any actual, suspected, or threatened misuse or infringement of the Assets. You agree to indemnify, defend, and hold us harmless against any third-party claim of whatever kind arising out of your use of the Assets.
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MASTERCRAFT CABINETS PURCHASE ORDER TERMS AND CONDITIONS
1. ACCEPTANCE – AGREEMENT
These terms and conditions govern all Purchase Orders issued by Purchaser to the Seller indicated on the Purchase Order. Seller’s commencement of work on the goods subject to any Purchase Order or shipment of such goods, whichever occurs first, shall constitute acceptance of the Purchase Order and these Terms and Conditions. Any acceptance of a Purchase Order is limited to the express terms contained on the face of any applicable Purchase Order and these Terms and Conditions (the “Contract Terms). Unless expressly agreed to in writing by an authorized representative of Purchaser, any proposal for additional or different terms or any attempt by Seller to vary in any degree any of the terms of this offer in Seller’s acceptance is hereby objected to and rejected and these Contract Terms shall be the complete and exclusive statement between Seller and Purchaser.
2. TERMINATION FOR CONVENIENCE OF PURCHASER
Purchaser reserves the right to terminate any Purchase Order or any part thereof for its sole convenience upon giving notice to Seller. In the event of such termination, Seller shall immediately stop all work, and shall immediately cause any of its suppliers or subcontractors to cease such work. Purchaser shall be liable to Seller only for services satisfactorily performed or conforming goods delivered prior to notice of termination. Seller shall neither be paid for any work done after receipt of the notice of termination nor for any costs incurred by Seller, Seller’s suppliers or subcontractors, including costs of raw materials.
3. TERMINATION FOR CAUSE
Purchaser may also terminate any Purchase Order or any portion thereof for cause in the event Seller fails to comply with any of the Contract Terms. In addition, deterioration in Seller’s financial condition, absent reasonable assurances of future performance, shall allow Purchaser to terminate any Purchase Order for cause.
4. PROPRIETARY INFORMATION – CONFIDENTIALITY – ADVERTISING
Seller shall consider all information furnished by Purchaser to be confidential and shall not disclose any such information to any other person or use such information itself for any purpose other than performing its obligations under the Purchase Order. This paragraph shall apply to all drawings, specifications, or other documents prepared by Seller for Purchaser in connection with the Purchase Order. Seller shall not advertise or publish the fact the Purchaser has contracted to purchase goods from Seller, nor shall any information relating to the order be disclosed without Purchaser’s written permission. Upon request of Purchaser, Seller shall return or destroy all such information. Seller’s obligations under this paragraph survive the cancellation, termination, or completion of the Purchase Order.
5. WARRANTY
Seller warrants that all goods and services furnished to Purchaser as a result of any Purchase Order have been manufactured, distributed, and delivered in compliance with all applicable federal, state and local laws, regulations and ordinances. Seller expressly warrants that all goods or services furnished pursuant to this Purchase Order shall (i) conform to all applicable specifications, descriptions and appropriate standards and will be free from defects in material and workmanship, (ii) be merchantable, safe and appropriate for the purpose for which the good services of that kind are normally used, and (iii) be free and clear of all liens and encumbrances, good title thereto being in Seller. If Seller knows or has reason to know the particular purpose for which Purchaser intends to use the goods or services, Seller warrants that such goods or services will be fit for such particular purpose. Seller warrants that goods or services furnished hereunder will conform in all respects to samples previously provided and to the most current specifications. Seller’s warranty shall run to Purchaser, its successors, assigns and customers, and users of goods sold by Purchaser pursuant to this Purchase Order. In the event of failure of Seller to correct defects in or replace nonconforming goods or services promptly, Purchaser, after reasonable notice to Seller, may make such corrections, replace such goods or services and charge Seller for the cost incurred by Purchaser in doing so.
6. PRICE
Seller warrants that the prices for the goods sold hereunder are not less favorable than those currently extended to any other customer for the same or similar goods in similar quantities after taking into effect all discounts and rebates. In the event Seller reduces its price for such goods during the term of any Purchase Order, Seller agrees to reduce its price for such goods during the term of any Purchase Order, Seller agrees to reduce the prices hereof correspondingly. Seller warrants that the prices shown on the Purchase Order shall be complete, and no increase in prices or additional charges of any type, including surcharges, shall be added without Purchaser’s express written consent. Unless otherwise stated in the Purchase Order, delivery of goods shall be DAP destination (Purchaser’s plant location) with Seller to incur freight, boxing, packing or other charges.
7. FORCE MAJEURE
Purchaser may delay receipt or acceptance of goods of services pursuant to this Purchase Order if the delay is occasioned by causes beyond its control. Seller shall hold such goods at the direction of the Purchaser and shall deliver them when the cause affecting the delay has been removed. Purchaser shall be responsible only for Seller’s direct additional costs of holding the goods delaying performance hereunder at Purchaser’s request.
8. INDEMNIFICATION
Seller shall, at Seller’s sole cost and expense, release, defend, indemnify and hold harmless Purchaser, its directors, officers, agents, and employees from, and against, any and all damages, liabilities, claims. losses, and expenses (including reasonable attorney fees) arising out of, or resulting in any way from (i) any alleged defect or non-conformity in the goods or services purchased hereunder, (ii) any act of omission of Seller, its agents, employees, or subcontractors, (iii) any recall of the goods in conjunction with the Consumer Products Safety Commission, or (iv) any claim that the goods or services infringe a patent, copyright, trademark, trade secret or other intellectual property right of a third party.
9. INSURANCE
Seller agrees to carry and to furnish certificates from its insurance carrier to Purchaser showing that it carries insurance in the following minimum limits: (a) worker’s compensation – statutory limits for states in which the work is to be performed, (b) general liability with minimum limits of $1,000,000 each occurrence, and in the aggregate (c) auto liability with minimum limits of $1,000,000 each occurrence and in the aggregate. Seller agrees to obtain and provide to Purchaser certificates reflecting vendor’s endorsements under such insurance policies naming Purchaser as an additional insured thereunder. All policies of insurance specified herein shall provide, at the request of Purchaser, that the coverage thereunder shall not be terminated without at least ten (10) days’ prior written notice to Purchaser.
10. INSPECTION/ TESTING
Payment for or receipt of the goods delivered hereunder shall not constitute acceptance thereof. Purchaser shall have the right to inspect such goods and reject any of all of such goods which are in the Purchaser’s sole judgment defective or non-conforming. Goods rejected hereunder may be returned to Seller at its expense, and, in addition to Purchaser’s other rights, Purchaser may charge Seller all expenses of unpacking, examining, repacking and reshipping such goods. In the event Purchaser received goods whose defects or non-conformity is not apparent on examination, Purchaser reserves the right to reject or revoke any acceptance of such goods and to require replacement as well as payment of damages. If any inspection or test is to be made on the premises of Seller, Seller without additional charge shall provide all reasonable facilities and assistance for the safety and convenience to the inspectors in the performance of their duties.
11. ENTIRE AGREEMENT
Except as provided in written contract executed by both Purchaser and Seller, these Contract Terms constitute the entire agreement between the parties concerning the goods and/or services specified herein. The terms and provisions hereof may not be modified in the absence of the prior express written consent of Purchaser.
12. ASSIGNMENTS AND SUBCONTRACTING
No part of this order may be assigned or subcontracted without the prior written approval of Purchaser.
13. SET – OFF
All claims for money by Seller against Purchaser shall be subject to deduction or offset by any claim for money of Purchaser against Seller arising
out of this or any other transaction.14. REMEDIES AND WAIVER
Purchaser’s remedies shall be cumulative and shall include any and all remedies allowed by law or equity. Purchaser’s failure to insist on performance of any of the terms of conditions herein or to exercise any right or privilege or Purchaser’s waiver of any breach hereunder shall not thereafter waive any other terms, conditions, or privileges, whether of the same or similar type.15. DELIVERY
Time is of the essence hereof, and if the delivery of goods or services is not completed by the date set forth in the Purchase Order, Purchasers reserves the rights and remedies, to terminate this Purchase Order and to purchase substitute goods or services elsewhere and charge Seller with any loss incurred. No partial shipments may be made without Purchaser’s written consent. Purchaser has the right to cancel any outstanding balance. Goods supplied in excess of quantities called for hereunder may be returned to Seller at its expense, and, in addition to Purchaser’s other rights, Purchaser may charge Seller all expenses of unpacking, examining, repacking and reshipping such good. Seller shall report any delays in delivery schedule immediately as they become known to the Seller. Purchaser may, upon reasonable notice to Seller, cancel schedules specified in the Purchase Order.
16. LIMITATION ON PURCHASER’S LIABILITY – STATUTE OF LIMITATIONS
IN NO EVENT WILL PURCHASER BE LIABLE TO SELLER OR ANY THIRD PARTY, IN CONTRACT, TORT OR OTHERWISE, FOR ANY LOSS OF PROFITS OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING FROM OR AS A RESULT OF THIS PURCHASE ORDER OR ANY AGREEMENT BETWEEN THE PARTIES RELATING TO THE PRODUCTS OR SERVICES SUPPLIED HEREUNDER, EVEN IF PURCHASER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Any action resulting from any breach on the part of Purchaser as to goods or services delivered hereunder must be commenced within one year after the cause of action has accrued.
17. SHIPPING PACKING AND RISK OF LOSS
All goods shall be suitably packed, marked with Purchaser’s purchase order number and shipped in accordance with shipping instructions specified herein and other wise in accordance with the requirements of common carriers so as to obtain the lowest transportation cost. No charge shall be made to Purchaser for boxing, packing, carting unless specifically itemized on the face hereof. Seller shall be liable to Purchaser for any loss or damage resulting from Seller’s failure to act so as to provide adequate protection during shipment. Unless the Purchase Order indicates that the goods are Ex Works, risk of loss or damage in transit shall be Seller’s sole responsibility and liability until conforming goods are delivered to and accepted by Purchaser. Additional expenses, with other shipping instructions, or improper description of the shipment and shipping documents shall be assumed by Seller. Purchaser’s purchase order number must be placed on all invoices and shipping papers.
18. PURCHASER PROPERTY
Any materials, parts or tools furnished by Purchaser with a Purchase Order shall be deemed to be held by Seller on consignment, shall remain the property of Purchaser and shall be returned to Purchaser on demand. Seller agrees to maintain said materials in proper working order and repair and to protect them against loss or damage. Seller further agrees to mark or tag said materials (insofar as practical) to clearly indicate Purchaser’s ownership thereof.
19. TAXES
Purchaser shall not be liable for any taxes, duties, customs or assessments in connection with the purchase and/or delivery of goods ordered
hereunder, except such as are expressly set forth on the face hereof.20. CHANGES
Purchaser may make changes in drawings, specifications, quantities, delivery schedules or methods of shipment or packaging on any item at any time. If such changes result in an increase or decrease in costs, and equitable adjustment of price and delivery schedule may be made, or Purchaser may, as its option, terminate the Purchase Order if agreement on an equitable adjustment cannot be reached. Seller must assert claims for equitable adjustment within ten (10) days of the change order. This order together with any change orders or instructions approved by Purchaser in writing shall constitute one integrated contract.
21. WAIVERS OF LIEN
Seller shall furnish all necessary lien waivers, affidavits, or other documents required to keep the property and premises of Purchaser, or Purchaser’s customers or assignees, free from all liens, claims, encumbrances or assessments arising out of the furnishing of labor, material or equipment by any party or entity in regard to the performance of this Purchase Order, as payments are made from time to time hereunder.
22. EQUAL OPPORTUNITY CLAUSE, FAIR LABOR STANDARDS ACT, AND COMPLIANCE WITH OTHER RELEVANT FEDERAL LAWS
By acceptance of this Purchase Order, Seller hereby warrants and represents to Purchaser that Seller shall comply with the Fair Labor Standards Act and all other applicable federal, state, and local laws, regulations and orders and shall, upon request, furnish to Purchaser a certificate to such effect. The Equal Opportunity Clause in Title 41; Part 60-1.4 of the Code of Federal Regulations (Paragraphs 1-7 of President’s Executive Order 11246), the Employment of the Handicapped Clause in Title 41, Part 60-741.4, of the Code of Federal Regulations, are incorporated herein by reference if and to the extent applicable.
23. We may, at our sole discretion, provide you with certain materials produced by us including without limitation, digital images, video, audio, and printed materials (“Assets”). You acknowledge that we maintain all ownership rights to the Assets. The Assets are provided under a non-exclusive and revocable license from us to you for the sole purpose of use in promoting our products. The Assets shall be used in a reasonable manner and, if instructions are provided by us, in the manner requested thereby, any we may, at our sole discretion, instruct you at any time to cease any use of the Assets. You may not translate, recast, edit, alter, modify, or create any derivative work without our express written permission and may not license, sublicense, or otherwise grant the rights given to you under this license to a third-party. You will protect the Assets and will provide us notice of any actual, suspected, or threatened misuse or infringement of the Assets. You agree to indemnify, defend, and hold us harmless against any third-party claim of whatever kind arising out of your use of the Assets.
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MEDALLION CABINETRY PURCHASE ORDER TERMS AND CONDITIONS
1. ACCEPTANCE – AGREEMENT
These terms and conditions govern all Purchase Orders issued by Purchaser to the Seller indicated on the Purchase Order. Seller’s commencement of work on the goods subject to any Purchase Order or shipment of such goods, whichever occurs first, shall constitute acceptance of the Purchase Order and these Terms and Conditions. Any acceptance of a Purchase Order is limited to the express terms contained on the face of any applicable Purchase Order and these Terms and Conditions (the “Contract Terms). Unless expressly agreed to in writing by an authorized representative of Purchaser, any proposal for additional or different terms or any attempt by Seller to vary in any degree any of the terms of this offer in Seller’s acceptance is hereby objected to and rejected and these Contract Terms shall be the complete and exclusive statement between Seller and Purchaser.
2. TERMINATION FOR CONVENIENCE OF PURCHASER
Purchaser reserves the right to terminate any Purchase Order or any part thereof for its sole convenience upon giving notice to Seller. In the event of such termination, Seller shall immediately stop all work, and shall immediately cause any of its suppliers or subcontractors to cease such work. Purchaser shall be liable to Seller only for services satisfactorily performed or conforming goods delivered prior to notice of termination. Seller shall neither be paid for any work done after receipt of the notice of termination nor for any costs incurred by Seller, Seller’s suppliers or subcontractors, including costs of raw materials.
3. TERMINATION FOR CAUSE
Purchaser may also terminate any Purchase Order or any portion thereof for cause in the event Seller fails to comply with any of the Contract Terms. In addition, deterioration in Seller’s financial condition, absent reasonable assurances of future performance, shall allow Purchaser to terminate any Purchase Order for cause.
4. PROPRIETARY INFORMATION – CONFIDENTIALITY – ADVERTISING
Seller shall consider all information furnished by Purchaser to be confidential and shall not disclose any such information to any other person or use such information itself for any purpose other than performing its obligations under the Purchase Order. This paragraph shall apply to all drawings, specifications, or other documents prepared by Seller for Purchaser in connection with the Purchase Order. Seller shall not advertise or publish the fact the Purchaser has contracted to purchase goods from Seller, nor shall any information relating to the order be disclosed without Purchaser’s written permission. Upon request of Purchaser, Seller shall return or destroy all such information. Seller’s obligations under this paragraph survive the cancellation, termination, or completion of the Purchase Order.
5. WARRANTY
Seller warrants that all goods and services furnished to Purchaser as a result of any Purchase Order have been manufactured, distributed, and delivered in compliance with all applicable federal, state and local laws, regulations and ordinances. Seller expressly warrants that all goods or services furnished pursuant to this Purchase Order shall (i) conform to all applicable specifications, descriptions and appropriate standards and will be free from defects in material and workmanship, (ii) be merchantable, safe and appropriate for the purpose for which the good services of that kind are normally used, and (iii) be free and clear of all liens and encumbrances, good title thereto being in Seller. If Seller knows or has reason to know the particular purpose for which Purchaser intends to use the goods or services, Seller warrants that such goods or services will be fit for such particular purpose. Seller warrants that goods or services furnished hereunder will conform in all respects to samples previously provided and to the most current specifications. Seller’s warranty shall run to Purchaser, its successors, assigns and customers, and users of goods sold by Purchaser pursuant to this Purchase Order. In the event of failure of Seller to correct defects in or replace nonconforming goods or services promptly, Purchaser, after reasonable notice to Seller, may make such corrections, replace such goods or services and charge Seller for the cost incurred by Purchaser in doing so.
6. PRICE
Seller warrants that the prices for the goods sold hereunder are not less favorable than those currently extended to any other customer for the same or similar goods in similar quantities after taking into effect all discounts and rebates. In the event Seller reduces its price for such goods during the term of any Purchase Order, Seller agrees to reduce its price for such goods during the term of any Purchase Order, Seller agrees to reduce the prices hereof correspondingly. Seller warrants that the prices shown on the Purchase Order shall be complete, and no increase in prices or additional charges of any type, including surcharges, shall be added without Purchaser’s express written consent. Unless otherwise stated in the Purchase Order, delivery of goods shall be DAP destination (Purchaser’s plant location) with Seller to incur freight, boxing, packing or other charges.
7. FORCE MAJEURE
Purchaser may delay receipt or acceptance of goods of services pursuant to this Purchase Order if the delay is occasioned by causes beyond its control. Seller shall hold such goods at the direction of the Purchaser and shall deliver them when the cause affecting the delay has been removed. Purchaser shall be responsible only for Seller’s direct additional costs of holding the goods delaying performance hereunder at Purchaser’s request.
8. INDEMNIFICATION
Seller shall, at Seller’s sole cost and expense, release, defend, indemnify and hold harmless Purchaser, its directors, officers, agents, and employees from, and against, any and all damages, liabilities, claims. losses, and expenses (including reasonable attorney fees) arising out of, or resulting in any way from (i) any alleged defect or non-conformity in the goods or services purchased hereunder, (ii) any act of omission of Seller, its agents, employees, or subcontractors, (iii) any recall of the goods in conjunction with the Consumer Products Safety Commission, or (iv) any claim that the goods or services infringe a patent, copyright, trademark, trade secret or other intellectual property right of a third party.
9. INSURANCE
Seller agrees to carry and to furnish certificates from its insurance carrier to Purchaser showing that it carries insurance in the following minimum limits: (a) worker’s compensation – statutory limits for states in which the work is to be performed, (b) general liability with minimum limits of $1,000,000 each occurrence, and in the aggregate (c) auto liability with minimum limits of $1,000,000 each occurrence and in the aggregate. Seller agrees to obtain and provide to Purchaser certificates reflecting vendor’s endorsements under such insurance policies naming Purchaser as an additional insured thereunder. All policies of insurance specified herein shall provide, at the request of Purchaser, that the coverage thereunder shall not be terminated without at least ten (10) days’ prior written notice to Purchaser.
10. INSPECTION/ TESTING
Payment for or receipt of the goods delivered hereunder shall not constitute acceptance thereof. Purchaser shall have the right to inspect such goods and reject any of all of such goods which are in the Purchaser’s sole judgment defective or non-conforming. Goods rejected hereunder may be returned to Seller at its expense, and, in addition to Purchaser’s other rights, Purchaser may charge Seller all expenses of unpacking, examining, repacking and reshipping such goods. In the event Purchaser received goods whose defects or non-conformity is not apparent on examination, Purchaser reserves the right to reject or revoke any acceptance of such goods and to require replacement as well as payment of damages. If any inspection or test is to be made on the premises of Seller, Seller without additional charge shall provide all reasonable facilities and assistance for the safety and convenience to the inspectors in the performance of their duties.
11. ENTIRE AGREEMENT
Except as provided in written contract executed by both Purchaser and Seller, these Contract Terms constitute the entire agreement between the parties concerning the goods and/or services specified herein. The terms and provisions hereof may not be modified in the absence of the prior express written consent of Purchaser.
12. ASSIGNMENTS AND SUBCONTRACTING
No part of this order may be assigned or subcontracted without the prior written approval of Purchaser.
13. SET – OFF
All claims for money by Seller against Purchaser shall be subject to deduction or offset by any claim for money of Purchaser against Seller arising
out of this or any other transaction.14. REMEDIES AND WAIVER
Purchaser’s remedies shall be cumulative and shall include any and all remedies allowed by law or equity. Purchaser’s failure to insist on performance of any of the terms of conditions herein or to exercise any right or privilege or Purchaser’s waiver of any breach hereunder shall not thereafter waive any other terms, conditions, or privileges, whether of the same or similar type.15. DELIVERY
Time is of the essence hereof, and if the delivery of goods or services is not completed by the date set forth in the Purchase Order, Purchasers reserves the rights and remedies, to terminate this Purchase Order and to purchase substitute goods or services elsewhere and charge Seller with any loss incurred. No partial shipments may be made without Purchaser’s written consent. Purchaser has the right to cancel any outstanding balance. Goods supplied in excess of quantities called for hereunder may be returned to Seller at its expense, and, in addition to Purchaser’s other rights, Purchaser may charge Seller all expenses of unpacking, examining, repacking and reshipping such good. Seller shall report any delays in delivery schedule immediately as they become known to the Seller. Purchaser may, upon reasonable notice to Seller, cancel schedules specified in the Purchase Order.
16. LIMITATION ON PURCHASER’S LIABILITY – STATUTE OF LIMITATIONS
IN NO EVENT WILL PURCHASER BE LIABLE TO SELLER OR ANY THIRD PARTY, IN CONTRACT, TORT OR OTHERWISE, FOR ANY LOSS OF PROFITS OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING FROM OR AS A RESULT OF THIS PURCHASE ORDER OR ANY AGREEMENT BETWEEN THE PARTIES RELATING TO THE PRODUCTS OR SERVICES SUPPLIED HEREUNDER, EVEN IF PURCHASER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Any action resulting from any breach on the part of Purchaser as to goods or services delivered hereunder must be commenced within one year after the cause of action has accrued.
17. SHIPPING PACKING AND RISK OF LOSS
All goods shall be suitably packed, marked with Purchaser’s purchase order number and shipped in accordance with shipping instructions specified herein and other wise in accordance with the requirements of common carriers so as to obtain the lowest transportation cost. No charge shall be made to Purchaser for boxing, packing, carting unless specifically itemized on the face hereof. Seller shall be liable to Purchaser for any loss or damage resulting from Seller’s failure to act so as to provide adequate protection during shipment. Unless the Purchase Order indicates that the goods are Ex Works, risk of loss or damage in transit shall be Seller’s sole responsibility and liability until conforming goods are delivered to and accepted by Purchaser. Additional expenses, with other shipping instructions, or improper description of the shipment and shipping documents shall be assumed by Seller. Purchaser’s purchase order number must be placed on all invoices and shipping papers.
18. PURCHASER PROPERTY
Any materials, parts or tools furnished by Purchaser with a Purchase Order shall be deemed to be held by Seller on consignment, shall remain the property of Purchaser and shall be returned to Purchaser on demand. Seller agrees to maintain said materials in proper working order and repair and to protect them against loss or damage. Seller further agrees to mark or tag said materials (insofar as practical) to clearly indicate Purchaser’s ownership thereof.
19. TAXES
Purchaser shall not be liable for any taxes, duties, customs or assessments in connection with the purchase and/or delivery of goods ordered
hereunder, except such as are expressly set forth on the face hereof.20. CHANGES
Purchaser may make changes in drawings, specifications, quantities, delivery schedules or methods of shipment or packaging on any item at any time. If such changes result in an increase or decrease in costs, and equitable adjustment of price and delivery schedule may be made, or Purchaser may, as its option, terminate the Purchase Order if agreement on an equitable adjustment cannot be reached. Seller must assert claims for equitable adjustment within ten (10) days of the change order. This order together with any change orders or instructions approved by Purchaser in writing shall constitute one integrated contract.
21. WAIVERS OF LIEN
Seller shall furnish all necessary lien waivers, affidavits, or other documents required to keep the property and premises of Purchaser, or Purchaser’s customers or assignees, free from all liens, claims, encumbrances or assessments arising out of the furnishing of labor, material or equipment by any party or entity in regard to the performance of this Purchase Order, as payments are made from time to time hereunder.
22. EQUAL OPPORTUNITY CLAUSE, FAIR LABOR STANDARDS ACT, AND COMPLIANCE WITH OTHER RELEVANT FEDERAL LAWS
By acceptance of this Purchase Order, Seller hereby warrants and represents to Purchaser that Seller shall comply with the Fair Labor Standards Act and all other applicable federal, state, and local laws, regulations and orders and shall, upon request, furnish to Purchaser a certificate to such effect. The Equal Opportunity Clause in Title 41; Part 60-1.4 of the Code of Federal Regulations (Paragraphs 1-7 of President’s Executive Order 11246), the Employment of the Handicapped Clause in Title 41, Part 60-741.4, of the Code of Federal Regulations, are incorporated herein by reference if and to the extent applicable.
23. We may, at our sole discretion, provide you with certain materials produced by us including without limitation, digital images, video, audio, and printed materials (“Assets”). You acknowledge that we maintain all ownership rights to the Assets. The Assets are provided under a non-exclusive and revocable license from us to you for the sole purpose of use in promoting our products. The Assets shall be used in a reasonable manner and, if instructions are provided by us, in the manner requested thereby, any we may, at our sole discretion, instruct you at any time to cease any use of the Assets. You may not translate, recast, edit, alter, modify, or create any derivative work without our express written permission and may not license, sublicense, or otherwise grant the rights given to you under this license to a third-party. You will protect the Assets and will provide us notice of any actual, suspected, or threatened misuse or infringement of the Assets. You agree to indemnify, defend, and hold us harmless against any third-party claim of whatever kind arising out of your use of the Assets.
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MEDALLION AT MENARDS PURCHASE ORDER TERMS AND CONDITIONS
1. ACCEPTANCE – AGREEMENT
These terms and conditions govern all Purchase Orders issued by Purchaser to the Seller indicated on the Purchase Order. Seller’s commencement of work on the goods subject to any Purchase Order or shipment of such goods, whichever occurs first, shall constitute acceptance of the Purchase Order and these Terms and Conditions. Any acceptance of a Purchase Order is limited to the express terms contained on the face of any applicable Purchase Order and these Terms and Conditions (the “Contract Terms). Unless expressly agreed to in writing by an authorized representative of Purchaser, any proposal for additional or different terms or any attempt by Seller to vary in any degree any of the terms of this offer in Seller’s acceptance is hereby objected to and rejected and these Contract Terms shall be the complete and exclusive statement between Seller and Purchaser.
2. TERMINATION FOR CONVENIENCE OF PURCHASER
Purchaser reserves the right to terminate any Purchase Order or any part thereof for its sole convenience upon giving notice to Seller. In the event of such termination, Seller shall immediately stop all work, and shall immediately cause any of its suppliers or subcontractors to cease such work. Purchaser shall be liable to Seller only for services satisfactorily performed or conforming goods delivered prior to notice of termination. Seller shall neither be paid for any work done after receipt of the notice of termination nor for any costs incurred by Seller, Seller’s suppliers or subcontractors, including costs of raw materials.
3. TERMINATION FOR CAUSE
Purchaser may also terminate any Purchase Order or any portion thereof for cause in the event Seller fails to comply with any of the Contract Terms. In addition, deterioration in Seller’s financial condition, absent reasonable assurances of future performance, shall allow Purchaser to terminate any Purchase Order for cause.
4. PROPRIETARY INFORMATION – CONFIDENTIALITY – ADVERTISING
Seller shall consider all information furnished by Purchaser to be confidential and shall not disclose any such information to any other person or use such information itself for any purpose other than performing its obligations under the Purchase Order. This paragraph shall apply to all drawings, specifications, or other documents prepared by Seller for Purchaser in connection with the Purchase Order. Seller shall not advertise or publish the fact the Purchaser has contracted to purchase goods from Seller, nor shall any information relating to the order be disclosed without Purchaser’s written permission. Upon request of Purchaser, Seller shall return or destroy all such information. Seller’s obligations under this paragraph survive the cancellation, termination, or completion of the Purchase Order.
5. WARRANTY
Seller warrants that all goods and services furnished to Purchaser as a result of any Purchase Order have been manufactured, distributed, and delivered in compliance with all applicable federal, state and local laws, regulations and ordinances. Seller expressly warrants that all goods or services furnished pursuant to this Purchase Order shall (i) conform to all applicable specifications, descriptions and appropriate standards and will be free from defects in material and workmanship, (ii) be merchantable, safe and appropriate for the purpose for which the good services of that kind are normally used, and (iii) be free and clear of all liens and encumbrances, good title thereto being in Seller. If Seller knows or has reason to know the particular purpose for which Purchaser intends to use the goods or services, Seller warrants that such goods or services will be fit for such particular purpose. Seller warrants that goods or services furnished hereunder will conform in all respects to samples previously provided and to the most current specifications. Seller’s warranty shall run to Purchaser, its successors, assigns and customers, and users of goods sold by Purchaser pursuant to this Purchase Order. In the event of failure of Seller to correct defects in or replace nonconforming goods or services promptly, Purchaser, after reasonable notice to Seller, may make such corrections, replace such goods or services and charge Seller for the cost incurred by Purchaser in doing so.
6. PRICE
Seller warrants that the prices for the goods sold hereunder are not less favorable than those currently extended to any other customer for the same or similar goods in similar quantities after taking into effect all discounts and rebates. In the event Seller reduces its price for such goods during the term of any Purchase Order, Seller agrees to reduce its price for such goods during the term of any Purchase Order, Seller agrees to reduce the prices hereof correspondingly. Seller warrants that the prices shown on the Purchase Order shall be complete, and no increase in prices or additional charges of any type, including surcharges, shall be added without Purchaser’s express written consent. Unless otherwise stated in the Purchase Order, delivery of goods shall be DAP destination (Purchaser’s plant location) with Seller to incur freight, boxing, packing or other charges.
7. FORCE MAJEURE
Purchaser may delay receipt or acceptance of goods of services pursuant to this Purchase Order if the delay is occasioned by causes beyond its control. Seller shall hold such goods at the direction of the Purchaser and shall deliver them when the cause affecting the delay has been removed. Purchaser shall be responsible only for Seller’s direct additional costs of holding the goods delaying performance hereunder at Purchaser’s request.
8. INDEMNIFICATION
Seller shall, at Seller’s sole cost and expense, release, defend, indemnify and hold harmless Purchaser, its directors, officers, agents, and employees from, and against, any and all damages, liabilities, claims. losses, and expenses (including reasonable attorney fees) arising out of, or resulting in any way from (i) any alleged defect or non-conformity in the goods or services purchased hereunder, (ii) any act of omission of Seller, its agents, employees, or subcontractors, (iii) any recall of the goods in conjunction with the Consumer Products Safety Commission, or (iv) any claim that the goods or services infringe a patent, copyright, trademark, trade secret or other intellectual property right of a third party.
9. INSURANCE
Seller agrees to carry and to furnish certificates from its insurance carrier to Purchaser showing that it carries insurance in the following minimum limits: (a) worker’s compensation – statutory limits for states in which the work is to be performed, (b) general liability with minimum limits of $1,000,000 each occurrence, and in the aggregate (c) auto liability with minimum limits of $1,000,000 each occurrence and in the aggregate. Seller agrees to obtain and provide to Purchaser certificates reflecting vendor’s endorsements under such insurance policies naming Purchaser as an additional insured thereunder. All policies of insurance specified herein shall provide, at the request of Purchaser, that the coverage thereunder shall not be terminated without at least ten (10) days’ prior written notice to Purchaser.
10. INSPECTION/ TESTING
Payment for or receipt of the goods delivered hereunder shall not constitute acceptance thereof. Purchaser shall have the right to inspect such goods and reject any of all of such goods which are in the Purchaser’s sole judgment defective or non-conforming. Goods rejected hereunder may be returned to Seller at its expense, and, in addition to Purchaser’s other rights, Purchaser may charge Seller all expenses of unpacking, examining, repacking and reshipping such goods. In the event Purchaser received goods whose defects or non-conformity is not apparent on examination, Purchaser reserves the right to reject or revoke any acceptance of such goods and to require replacement as well as payment of damages. If any inspection or test is to be made on the premises of Seller, Seller without additional charge shall provide all reasonable facilities and assistance for the safety and convenience to the inspectors in the performance of their duties.
11. ENTIRE AGREEMENT
Except as provided in written contract executed by both Purchaser and Seller, these Contract Terms constitute the entire agreement between the parties concerning the goods and/or services specified herein. The terms and provisions hereof may not be modified in the absence of the prior express written consent of Purchaser.
12. ASSIGNMENTS AND SUBCONTRACTING
No part of this order may be assigned or subcontracted without the prior written approval of Purchaser.
13. SET – OFF
All claims for money by Seller against Purchaser shall be subject to deduction or offset by any claim for money of Purchaser against Seller arising
out of this or any other transaction.14. REMEDIES AND WAIVER
Purchaser’s remedies shall be cumulative and shall include any and all remedies allowed by law or equity. Purchaser’s failure to insist on performance of any of the terms of conditions herein or to exercise any right or privilege or Purchaser’s waiver of any breach hereunder shall not thereafter waive any other terms, conditions, or privileges, whether of the same or similar type.15. DELIVERY
Time is of the essence hereof, and if the delivery of goods or services is not completed by the date set forth in the Purchase Order, Purchasers reserves the rights and remedies, to terminate this Purchase Order and to purchase substitute goods or services elsewhere and charge Seller with any loss incurred. No partial shipments may be made without Purchaser’s written consent. Purchaser has the right to cancel any outstanding balance. Goods supplied in excess of quantities called for hereunder may be returned to Seller at its expense, and, in addition to Purchaser’s other rights, Purchaser may charge Seller all expenses of unpacking, examining, repacking and reshipping such good. Seller shall report any delays in delivery schedule immediately as they become known to the Seller. Purchaser may, upon reasonable notice to Seller, cancel schedules specified in the Purchase Order.
16. LIMITATION ON PURCHASER’S LIABILITY – STATUTE OF LIMITATIONS
IN NO EVENT WILL PURCHASER BE LIABLE TO SELLER OR ANY THIRD PARTY, IN CONTRACT, TORT OR OTHERWISE, FOR ANY LOSS OF PROFITS OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING FROM OR AS A RESULT OF THIS PURCHASE ORDER OR ANY AGREEMENT BETWEEN THE PARTIES RELATING TO THE PRODUCTS OR SERVICES SUPPLIED HEREUNDER, EVEN IF PURCHASER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Any action resulting from any breach on the part of Purchaser as to goods or services delivered hereunder must be commenced within one year after the cause of action has accrued.
17. SHIPPING PACKING AND RISK OF LOSS
All goods shall be suitably packed, marked with Purchaser’s purchase order number and shipped in accordance with shipping instructions specified herein and other wise in accordance with the requirements of common carriers so as to obtain the lowest transportation cost. No charge shall be made to Purchaser for boxing, packing, carting unless specifically itemized on the face hereof. Seller shall be liable to Purchaser for any loss or damage resulting from Seller’s failure to act so as to provide adequate protection during shipment. Unless the Purchase Order indicates that the goods are Ex Works, risk of loss or damage in transit shall be Seller’s sole responsibility and liability until conforming goods are delivered to and accepted by Purchaser. Additional expenses, with other shipping instructions, or improper description of the shipment and shipping documents shall be assumed by Seller. Purchaser’s purchase order number must be placed on all invoices and shipping papers.
18. PURCHASER PROPERTY
Any materials, parts or tools furnished by Purchaser with a Purchase Order shall be deemed to be held by Seller on consignment, shall remain the property of Purchaser and shall be returned to Purchaser on demand. Seller agrees to maintain said materials in proper working order and repair and to protect them against loss or damage. Seller further agrees to mark or tag said materials (insofar as practical) to clearly indicate Purchaser’s ownership thereof.
19. TAXES
Purchaser shall not be liable for any taxes, duties, customs or assessments in connection with the purchase and/or delivery of goods ordered
hereunder, except such as are expressly set forth on the face hereof.20. CHANGES
Purchaser may make changes in drawings, specifications, quantities, delivery schedules or methods of shipment or packaging on any item at any time. If such changes result in an increase or decrease in costs, and equitable adjustment of price and delivery schedule may be made, or Purchaser may, as its option, terminate the Purchase Order if agreement on an equitable adjustment cannot be reached. Seller must assert claims for equitable adjustment within ten (10) days of the change order. This order together with any change orders or instructions approved by Purchaser in writing shall constitute one integrated contract.
21. WAIVERS OF LIEN
Seller shall furnish all necessary lien waivers, affidavits, or other documents required to keep the property and premises of Purchaser, or Purchaser’s customers or assignees, free from all liens, claims, encumbrances or assessments arising out of the furnishing of labor, material or equipment by any party or entity in regard to the performance of this Purchase Order, as payments are made from time to time hereunder.
22. EQUAL OPPORTUNITY CLAUSE, FAIR LABOR STANDARDS ACT, AND COMPLIANCE WITH OTHER RELEVANT FEDERAL LAWS
By acceptance of this Purchase Order, Seller hereby warrants and represents to Purchaser that Seller shall comply with the Fair Labor Standards Act and all other applicable federal, state, and local laws, regulations and orders and shall, upon request, furnish to Purchaser a certificate to such effect. The Equal Opportunity Clause in Title 41; Part 60-1.4 of the Code of Federal Regulations (Paragraphs 1-7 of President’s Executive Order 11246), the Employment of the Handicapped Clause in Title 41, Part 60-741.4, of the Code of Federal Regulations, are incorporated herein by reference if and to the extent applicable.
23. We may, at our sole discretion, provide you with certain materials produced by us including without limitation, digital images, video, audio, and printed materials (“Assets”). You acknowledge that we maintain all ownership rights to the Assets. The Assets are provided under a non-exclusive and revocable license from us to you for the sole purpose of use in promoting our products. The Assets shall be used in a reasonable manner and, if instructions are provided by us, in the manner requested thereby, any we may, at our sole discretion, instruct you at any time to cease any use of the Assets. You may not translate, recast, edit, alter, modify, or create any derivative work without our express written permission and may not license, sublicense, or otherwise grant the rights given to you under this license to a third-party. You will protect the Assets and will provide us notice of any actual, suspected, or threatened misuse or infringement of the Assets. You agree to indemnify, defend, and hold us harmless against any third-party claim of whatever kind arising out of your use of the Assets.
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SCHULER CABINETRY PURCHASE ORDER TERMS AND CONDITIONS
1. ACCEPTANCE – AGREEMENT
These terms and conditions govern all Purchase Orders issued by Purchaser to the Seller indicated on the Purchase Order. Seller’s commencement of work on the goods subject to any Purchase Order or shipment of such goods, whichever occurs first, shall constitute acceptance of the Purchase Order and these Terms and Conditions. Any acceptance of a Purchase Order is limited to the express terms contained on the face of any applicable Purchase Order and these Terms and Conditions (the “Contract Terms). Unless expressly agreed to in writing by an authorized representative of Purchaser, any proposal for additional or different terms or any attempt by Seller to vary in any degree any of the terms of this offer in Seller’s acceptance is hereby objected to and rejected and these Contract Terms shall be the complete and exclusive statement between Seller and Purchaser.
2. TERMINATION FOR CONVENIENCE OF PURCHASER
Purchaser reserves the right to terminate any Purchase Order or any part thereof for its sole convenience upon giving notice to Seller. In the event of such termination, Seller shall immediately stop all work, and shall immediately cause any of its suppliers or subcontractors to cease such work. Purchaser shall be liable to Seller only for services satisfactorily performed or conforming goods delivered prior to notice of termination. Seller shall neither be paid for any work done after receipt of the notice of termination nor for any costs incurred by Seller, Seller’s suppliers or subcontractors, including costs of raw materials.
3. TERMINATION FOR CAUSE
Purchaser may also terminate any Purchase Order or any portion thereof for cause in the event Seller fails to comply with any of the Contract Terms. In addition, deterioration in Seller’s financial condition, absent reasonable assurances of future performance, shall allow Purchaser to terminate any Purchase Order for cause.
4. PROPRIETARY INFORMATION – CONFIDENTIALITY – ADVERTISING
Seller shall consider all information furnished by Purchaser to be confidential and shall not disclose any such information to any other person or use such information itself for any purpose other than performing its obligations under the Purchase Order. This paragraph shall apply to all drawings, specifications, or other documents prepared by Seller for Purchaser in connection with the Purchase Order. Seller shall not advertise or publish the fact the Purchaser has contracted to purchase goods from Seller, nor shall any information relating to the order be disclosed without Purchaser’s written permission. Upon request of Purchaser, Seller shall return or destroy all such information. Seller’s obligations under this paragraph survive the cancellation, termination, or completion of the Purchase Order.
5. WARRANTY
Seller warrants that all goods and services furnished to Purchaser as a result of any Purchase Order have been manufactured, distributed, and delivered in compliance with all applicable federal, state and local laws, regulations and ordinances. Seller expressly warrants that all goods or services furnished pursuant to this Purchase Order shall (i) conform to all applicable specifications, descriptions and appropriate standards and will be free from defects in material and workmanship, (ii) be merchantable, safe and appropriate for the purpose for which the good services of that kind are normally used, and (iii) be free and clear of all liens and encumbrances, good title thereto being in Seller. If Seller knows or has reason to know the particular purpose for which Purchaser intends to use the goods or services, Seller warrants that such goods or services will be fit for such particular purpose. Seller warrants that goods or services furnished hereunder will conform in all respects to samples previously provided and to the most current specifications. Seller’s warranty shall run to Purchaser, its successors, assigns and customers, and users of goods sold by Purchaser pursuant to this Purchase Order. In the event of failure of Seller to correct defects in or replace nonconforming goods or services promptly, Purchaser, after reasonable notice to Seller, may make such corrections, replace such goods or services and charge Seller for the cost incurred by Purchaser in doing so.
6. PRICE
Seller warrants that the prices for the goods sold hereunder are not less favorable than those currently extended to any other customer for the same or similar goods in similar quantities after taking into effect all discounts and rebates. In the event Seller reduces its price for such goods during the term of any Purchase Order, Seller agrees to reduce its price for such goods during the term of any Purchase Order, Seller agrees to reduce the prices hereof correspondingly. Seller warrants that the prices shown on the Purchase Order shall be complete, and no increase in prices or additional charges of any type, including surcharges, shall be added without Purchaser’s express written consent. Unless otherwise stated in the Purchase Order, delivery of goods shall be DAP destination (Purchaser’s plant location) with Seller to incur freight, boxing, packing or other charges.
7. FORCE MAJEURE
Purchaser may delay receipt or acceptance of goods of services pursuant to this Purchase Order if the delay is occasioned by causes beyond its control. Seller shall hold such goods at the direction of the Purchaser and shall deliver them when the cause affecting the delay has been removed. Purchaser shall be responsible only for Seller’s direct additional costs of holding the goods delaying performance hereunder at Purchaser’s request.
8. INDEMNIFICATION
Seller shall, at Seller’s sole cost and expense, release, defend, indemnify and hold harmless Purchaser, its directors, officers, agents, and employees from, and against, any and all damages, liabilities, claims. losses, and expenses (including reasonable attorney fees) arising out of, or resulting in any way from (i) any alleged defect or non-conformity in the goods or services purchased hereunder, (ii) any act of omission of Seller, its agents, employees, or subcontractors, (iii) any recall of the goods in conjunction with the Consumer Products Safety Commission, or (iv) any claim that the goods or services infringe a patent, copyright, trademark, trade secret or other intellectual property right of a third party.
9. INSURANCE
Seller agrees to carry and to furnish certificates from its insurance carrier to Purchaser showing that it carries insurance in the following minimum limits: (a) worker’s compensation – statutory limits for states in which the work is to be performed, (b) general liability with minimum limits of $1,000,000 each occurrence, and in the aggregate (c) auto liability with minimum limits of $1,000,000 each occurrence and in the aggregate. Seller agrees to obtain and provide to Purchaser certificates reflecting vendor’s endorsements under such insurance policies naming Purchaser as an additional insured thereunder. All policies of insurance specified herein shall provide, at the request of Purchaser, that the coverage thereunder shall not be terminated without at least ten (10) days’ prior written notice to Purchaser.
10. INSPECTION/ TESTING
Payment for or receipt of the goods delivered hereunder shall not constitute acceptance thereof. Purchaser shall have the right to inspect such goods and reject any of all of such goods which are in the Purchaser’s sole judgment defective or non-conforming. Goods rejected hereunder may be returned to Seller at its expense, and, in addition to Purchaser’s other rights, Purchaser may charge Seller all expenses of unpacking, examining, repacking and reshipping such goods. In the event Purchaser received goods whose defects or non-conformity is not apparent on examination, Purchaser reserves the right to reject or revoke any acceptance of such goods and to require replacement as well as payment of damages. If any inspection or test is to be made on the premises of Seller, Seller without additional charge shall provide all reasonable facilities and assistance for the safety and convenience to the inspectors in the performance of their duties.
11. ENTIRE AGREEMENT
Except as provided in written contract executed by both Purchaser and Seller, these Contract Terms constitute the entire agreement between the parties concerning the goods and/or services specified herein. The terms and provisions hereof may not be modified in the absence of the prior express written consent of Purchaser.
12. ASSIGNMENTS AND SUBCONTRACTING
No part of this order may be assigned or subcontracted without the prior written approval of Purchaser.
13. SET – OFF
All claims for money by Seller against Purchaser shall be subject to deduction or offset by any claim for money of Purchaser against Seller arising
out of this or any other transaction.14. REMEDIES AND WAIVER
Purchaser’s remedies shall be cumulative and shall include any and all remedies allowed by law or equity. Purchaser’s failure to insist on performance of any of the terms of conditions herein or to exercise any right or privilege or Purchaser’s waiver of any breach hereunder shall not thereafter waive any other terms, conditions, or privileges, whether of the same or similar type.15. DELIVERY
Time is of the essence hereof, and if the delivery of goods or services is not completed by the date set forth in the Purchase Order, Purchasers reserves the rights and remedies, to terminate this Purchase Order and to purchase substitute goods or services elsewhere and charge Seller with any loss incurred. No partial shipments may be made without Purchaser’s written consent. Purchaser has the right to cancel any outstanding balance. Goods supplied in excess of quantities called for hereunder may be returned to Seller at its expense, and, in addition to Purchaser’s other rights, Purchaser may charge Seller all expenses of unpacking, examining, repacking and reshipping such good. Seller shall report any delays in delivery schedule immediately as they become known to the Seller. Purchaser may, upon reasonable notice to Seller, cancel schedules specified in the Purchase Order.
16. LIMITATION ON PURCHASER’S LIABILITY – STATUTE OF LIMITATIONS
IN NO EVENT WILL PURCHASER BE LIABLE TO SELLER OR ANY THIRD PARTY, IN CONTRACT, TORT OR OTHERWISE, FOR ANY LOSS OF PROFITS OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING FROM OR AS A RESULT OF THIS PURCHASE ORDER OR ANY AGREEMENT BETWEEN THE PARTIES RELATING TO THE PRODUCTS OR SERVICES SUPPLIED HEREUNDER, EVEN IF PURCHASER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Any action resulting from any breach on the part of Purchaser as to goods or services delivered hereunder must be commenced within one year after the cause of action has accrued.
17. SHIPPING PACKING AND RISK OF LOSS
All goods shall be suitably packed, marked with Purchaser’s purchase order number and shipped in accordance with shipping instructions specified herein and other wise in accordance with the requirements of common carriers so as to obtain the lowest transportation cost. No charge shall be made to Purchaser for boxing, packing, carting unless specifically itemized on the face hereof. Seller shall be liable to Purchaser for any loss or damage resulting from Seller’s failure to act so as to provide adequate protection during shipment. Unless the Purchase Order indicates that the goods are Ex Works, risk of loss or damage in transit shall be Seller’s sole responsibility and liability until conforming goods are delivered to and accepted by Purchaser. Additional expenses, with other shipping instructions, or improper description of the shipment and shipping documents shall be assumed by Seller. Purchaser’s purchase order number must be placed on all invoices and shipping papers.
18. PURCHASER PROPERTY
Any materials, parts or tools furnished by Purchaser with a Purchase Order shall be deemed to be held by Seller on consignment, shall remain the property of Purchaser and shall be returned to Purchaser on demand. Seller agrees to maintain said materials in proper working order and repair and to protect them against loss or damage. Seller further agrees to mark or tag said materials (insofar as practical) to clearly indicate Purchaser’s ownership thereof.
19. TAXES
Purchaser shall not be liable for any taxes, duties, customs or assessments in connection with the purchase and/or delivery of goods ordered
hereunder, except such as are expressly set forth on the face hereof.20. CHANGES
Purchaser may make changes in drawings, specifications, quantities, delivery schedules or methods of shipment or packaging on any item at any time. If such changes result in an increase or decrease in costs, and equitable adjustment of price and delivery schedule may be made, or Purchaser may, as its option, terminate the Purchase Order if agreement on an equitable adjustment cannot be reached. Seller must assert claims for equitable adjustment within ten (10) days of the change order. This order together with any change orders or instructions approved by Purchaser in writing shall constitute one integrated contract.
21. WAIVERS OF LIEN
Seller shall furnish all necessary lien waivers, affidavits, or other documents required to keep the property and premises of Purchaser, or Purchaser’s customers or assignees, free from all liens, claims, encumbrances or assessments arising out of the furnishing of labor, material or equipment by any party or entity in regard to the performance of this Purchase Order, as payments are made from time to time hereunder.
22. EQUAL OPPORTUNITY CLAUSE, FAIR LABOR STANDARDS ACT, AND COMPLIANCE WITH OTHER RELEVANT FEDERAL LAWS
By acceptance of this Purchase Order, Seller hereby warrants and represents to Purchaser that Seller shall comply with the Fair Labor Standards Act and all other applicable federal, state, and local laws, regulations and orders and shall, upon request, furnish to Purchaser a certificate to such effect. The Equal Opportunity Clause in Title 41; Part 60-1.4 of the Code of Federal Regulations (Paragraphs 1-7 of President’s Executive Order 11246), the Employment of the Handicapped Clause in Title 41, Part 60-741.4, of the Code of Federal Regulations, are incorporated herein by reference if and to the extent applicable.
23. We may, at our sole discretion, provide you with certain materials produced by us including without limitation, digital images, video, audio, and printed materials (“Assets”). You acknowledge that we maintain all ownership rights to the Assets. The Assets are provided under a non-exclusive and revocable license from us to you for the sole purpose of use in promoting our products. The Assets shall be used in a reasonable manner and, if instructions are provided by us, in the manner requested thereby, any we may, at our sole discretion, instruct you at any time to cease any use of the Assets. You may not translate, recast, edit, alter, modify, or create any derivative work without our express written permission and may not license, sublicense, or otherwise grant the rights given to you under this license to a third-party. You will protect the Assets and will provide us notice of any actual, suspected, or threatened misuse or infringement of the Assets. You agree to indemnify, defend, and hold us harmless against any third-party claim of whatever kind arising out of your use of the Assets.
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This document sets forth our standard sales terms and conditions (together with any conditions contained in the quotation, if any, we previously furnished to you, “Terms”) that will exclusively govern the sale of our products to you (“Transaction”). If you provide us with any pre- printed terms and conditions that appear on any purchase order or other form document, they are rejected and will be of no force or effect. These Terms are deemed a part of and incorporated by reference into all other documents exchanged between us relating to the sale and purchase of our products, whether electronic or in writing, including, without limitation, all quotations, acknowledgements, packing slips, invoices and purchase orders.
- APPLICATION OF TERMS. Our acknowledgement and acceptance of your order for our products is expressly limited to and made conditional upon your acceptance of these Terms. We deem material, object to and reject any of your terms and conditions that are in addition to or different from these Terms unless we have expressly agreed to them in writing (other than additional provisions specifying quantity, description of the products ordered and shipping instructions). Unless otherwise agreed in writing, we will deem you to have waived any objection to these Terms if we have not received written notice of such objection within ten (10) days of the date of your order. In any event, you will be deemed to have agreed to these Terms if you accept any portion of the products you order from us.
You acknowledge that the prices we have quoted are predicated on the enforceability of these Terms, that the price would be substantially higher if these Terms did not apply, and that you accept these Terms in exchange for such lower prices.
- DISCLAIMER OF WARRANTY. We extend express, written warranties on our products in accordance with the terms, conditions and limitations of the applicable warranty (“Warranty”) set forth in the applicable product specifications booklet. Fulfillment of our Warranty obligations to the purchasers of our products is our sole warranty obligation for our products. EXCEPT AS EXPRESSLY PROVIDED IN OUR WARRANTY, WE DISCLAIM, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL WARRANTIES TO YOU, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. With respect to purchasers of our products who purchase our products primarily for commercial purposes and not for personal, family or household purposes, you have no authority to bind or assume any obligation on our behalf in any way (including, without limitation, any warranty, representation, advertising claim or promise related in any way to our products). With respect to purchasers of our products who purchase our products primarily for commercial purposes and not for personal, family or household purposes, you shall defend, indemnify and hold us, Cabinetworks Group Corporation and all Cabinetworks Group Corporation subsidiaries and affiliates harmless and our respective successors and assigns from and against all claims, demands, damages, losses, expenses, costs, penalties, fines or attorneys’ fees, suits, proceedings or liabilities arising out of any warranty, representation, advertising claim or promise made by you or your agents to anyone relating to our products without our advance express written consent.
- LIMITATION OF REMEDIES. Your sole and exclusive remedy against us for any breach of our obligations in a Transaction or based on any other theory of liability will be limited, to the maximum extent permitted by law, at our option, to our repair or replacement of any nonconforming product for which you make a claim or our issuance of a credit for such nonconforming product in accordance with these Terms, the Warranty and any instructions we may give you for the return of the product or otherwise. You must obtain a return authorization from us and give us a reasonable opportunity to inspect the product and confirm the nonconformity. This exclusive remedy will not be deemed to have failed of its essential purpose so long as we are willing and able to repair or replace the nonconforming product and, in any event, our liability for any damages due you will be limited to the your purchase price of the nonconforming products, regardless of whether other damages were foreseeable. THIS PARAGRAPH STATES YOUR SOLE AND EXCLUSIVE REMEDY.
- LIMITATIONS ON ACTIONS AND LIABILITY. You agree that all of your claims arising under these Terms or a Transaction will only be valid for one (1) year from the date of the act, omission, inaction or other event that gave rise to such a claim, except for as limited by laws in your state or for claims arising in the State of New Jersey, which will only be valid six (6) years from the date of the act, omission, inaction or other event that gave rise to such claim. WE WILL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR INJURY RESULTING FROM DELAY IN DELIVERY OF THE PRODUCTS OR FOR ANY FAILURE TO PERFORM WHICH IS DUE TO CIRCUMSTANCES BEYOND OUR CONTROL OR THE CONTROL OF OUR SUPPLIERS, INCLUDING WITHOUT LIMITATION FAILURE OR DELAY IN TRANSPORTATION, ACTS OF ANY GOVERNMENT OR ANY AGENCY OR SUBDIVISION THEREOF, JUDICIAL ACTION, LABOR DISPUTES, FIRE, ACCIDENT, ACTS OF NATURE, SHORTAGE OF LABOR, FUEL OR RAW MATERIAL, OR MACHINERY OR TECHNICAL FAILURE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, OUR MAXIMUM LIABILITY, IF ANY, FOR ALL DAMAGES, INCLUDING WITHOUT LIMITATION CONTRACT DAMAGES AND DAMAGES FOR INJURIES TO PERSONS OR PROPERTY, WHETHER ARISING FROM OUR BREACH OF THESE TERMS, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT WITH RESPECT TO THE PRODUCTS, IS LIMITED TO AN AMOUNT NOT TO EXCEED THE THEN-CURRENT WHOLESALE PRICE OF THE PRODUCTS. IN NO EVENT WILL WE BE LIABLE TO YOU FOR ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST REVENUES AND PROFITS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR RIGHT TO RECOVER DAMAGES WITHIN THE LIMITATIONS SPECIFIED IN THIS PARAGRAPH 4 IS YOUR EXCLUSIVE ALTERNATIVE REMEDY IN THE EVENT THAT THE REMEDY IN PARAGRAPH 3 FAILS OF ITS ESSENTIAL PURPOSE.
- PRICES, TERMS, SHIPMENT AND DELIVERY SCHEDULES. Unless we otherwise agree in writing, or as may otherwise be provided on the face of our invoice, you will pay the prices for the products in effect at the time of shipment and all prices are Net 30 Days from date of invoice; no cash discount is allowed; and you may not setoff or assert a counterclaim. In addition to the prices specified, you agree to pay any federal, state or local excise, use, occupational or similar tax now in force or to be enacted in the future, assessed against you or us due to a Transaction. Unless we otherwise agree in writing, shipments will be by a carrier and by the route selected by us; the carrier will act as your agent; delivery by us to such carrier will constitute delivery to you; and all shipments under your order will be made F.O.B. our shipping point, at which time title and all risk of loss will pass to you, provided that we will retain, and you hereby grant to us, a security interest in any products we ship to you until the full purchase price is paid by you. You will pay all freight charges and assume the risks of transportation, including delay, damage and loss, unless we otherwise agree in writing. The promised delivery date is our best estimate possible of when we will ship the products.
- VARIATIONS IN QUANTITIES, SHORTAGES AND ALLOCATION. Except for custom products, deliveries scheduled to be made by us over an extended number of shipments may vary from your order in quantities not to exceed ten percent (10%), plus or minus, of each product involved (unless otherwise agreed to in writing) and we will adjust the billing accordingly. You must make all claims for shortages within fifteen (15) days of your receipt of shipment. We will not be responsible for any claim for shortage not reported within that period. In the event of a shortage or other contingency due to circumstances beyond our control or the control of our suppliers, we may allocate production and deliveries among our customers in such manner as we determine in our sole discretion.
- PATENT OR TRADEMARK INFRINGEMENT. If the products we sell to you are manufactured according to your specifications, you will defend, hold harmless and indemnify us and our affiliates against any claims, liability, costs or attorneys’ fees incurred in relation to any claim arising out of your specifications or design, including any claims for patent, trademark or other intellectual property infringement.
8.CONFIDENTIALITY. Ifyourpersonnelvisitourfacility(ies)oryouotherwisereceive any proprietary or non-public information from us, you will retain and treat such information as confidential and will not use or disclose such information to any third party without our prior written consent.
- CREDIT APPROVAL AND PAST DUE ACCOUNTS. You will furnish to us all financial and related information reasonably requested by us from time to time for the purpose of establishing or continuing your credit limit. Shipment and delivery of products will at all times be subject to the approval of our credit department and we may at any time decline to make any shipment or delivery except upon receipt of payment, your providing security acceptable to us or upon other terms and conditions satisfactory to us. You agree that we may file a uniform commercial code financing statement with respect to the products we sell to you in order to protect our interest in such products until you make payment in full. We will be entitled to collect from you interest on all past-due accounts at the maximum rate of interest allowed by law.
- CANCELLATION AND RETURNED GOODS. You may cancel orders only with our written approval. You will need our approval, and our issuance of a return authorization, before returning any products to us. If you cancel an order, in whole or in part, that incorporates special material, parts, components or other items that we do not typically buy, sell or use in connection with our standard product offerings (i.e., a nonstandard special order), you will pay us: (a) the previously agreed upon price of all completed items; (b) that portion of the agreed upon price that is equal to the greater of our actual cost or the percentage of completion of products in process, effective on the date we receive your notice of cancellation; (c) the cost of any materials and supplies that we have purchased in order to perform and which we cannot use for other or similar purposes or readily resell at our full cost; and (d) charges for cancellation of tool orders or tool removal charges.
- DEFAULT. If we default on a material obligation, you will provide written notice to us specifying our default and we shall have thirty (30) days to remedy such default. If such default is not excusable under any provision of these Terms, and we have not remedied such default within thirty (30) days after our receipt of such notice of default, you may terminate the uncompleted portion of the Transaction, in whole or in part, by providing fifteen (15) days’ prior written notice of termination to us, during which we shall have the right to cure such default. If we deliver nonconforming products to you, you will have the rights set forth in Paragraph 3 of these Terms but such delivery will not be deemed a default for which our performance may be terminated.
- ASSIGNMENT. You cannot assign any order or any claim against us arising directly or indirectly out of or in connection with an order without our prior written consent. We may assign, without consent, any Transaction and these Terms to any subsidiary or affiliate of ours or of Cabinetworks Group or to an entity or person that acquires all or substantially all of the business to which the Transaction and these Terms relate.
- PATENTS, INVENTIONS, TECHNICAL DATA AND INDEMNIFICATION. You do not and will not acquire ownership of or any other rights in our patents, inventions, technical data and/or other intellectual property (such as brands, trade names and copyrights) under any order, regardless of when such patents, inventions, technical data and/or other intellectual property may be or have been issued, conceived, generated or produced. We reserve all of our rights in our patents, inventions, technical data and/or other intellectual property and you will not reproduce or use it for any purpose whatsoever without our prior written permission. We may provide technical assistance and information to you in connection with the sale of our products but such technical assistance and information are furnished for your accommodation and you are solely responsible for your business, including the application of such information, using your own technical expertise and know-how. You shall indemnify, defend and hold harmless us and our affiliates, and their respective officers, directors, employees and agents, from and against all liabilities, losses, claims, costs and expenses (including reasonable attorneys’ fees) related to any claim, investigation, litigation or proceeding (whether or not we are a party) that arises or is alleged to arise from your acts or omissions under these Terms or in any way with respect to our products.
- We may, at our sole discretion, provide you with certain materials produced by us including without limitation, digital images, video, audio, and printed materials (“Assets”). You acknowledge that we maintain all ownership rights to the Assets. The Assets are provided under a non-exclusive and revocable license from us to you for the sole purpose of use in promoting our products. The Assets shall be used in a reasonable manner and, if instructions are provided by us, in the manner requested thereby, any we may, at our sole discretion, instruct you at any time to cease any use of the Assets. You may not translate, recast, edit, alter, modify, or create any derivative work without our express written permission and may not license, sublicense, or otherwise grant the rights given to you under this license to a third-party. You will protect the Assets and will provide us notice of any actual, suspected, or threatened misuse or infringement of the Assets. You agree to indemnify, defend, and hold us harmless against any third-party claim of whatever kind arising out of your use of the Assets.
- NONCONFORMING FURNISHED PARTS AND/OR MATERIALS. We will not be responsible, and all risk of loss, damage or destruction or deterioration will pass to you, for any parts and/or materials that you furnish to us that do not conform to specifications, that have been damaged or for any other reason are unsuitable for further processing. You will indemnify, defend and hold harmless us and our affiliates from any claim, such as damage to our facilities or equipment, arising from such parts or materials. We will be entitled to charge you for storage of such parts and/or materials if you have not removed them from our premises within ten (10) days after we give such notice to you.
- REMEDIES. Our rights and remedies will be cumulative and additional to all other remedies provided by law or equity. We will be entitled to recover costs and attorneys’ fees in the enforcement or defense of any rights under these Terms or with respect to any Transaction.
- GOVERNING LAW AND FORUM. These Terms and each Transaction will be construed and interpreted, and the rights of the parties determined, in accordance with the laws of the State of Michigan without regard to any conflict of laws provisions that might otherwise apply. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms or any Transaction. You agree to exercise any right or remedy in connection with these Terms or your orders exclusively in, and you agree to submit to the jurisdiction of, the appropriate state or federal court of Washtenaw County, Michigan.
- ENTIRE AGREEMENT. These Terms contain our entire agreement relating to each Transaction. These Terms may not be waived, changed, modified, extended or discharged except by an agreement in writing that is signed by an authorized representative of the party against whom enforcement of any such waiver, change, modification, extension or discharge is sought.
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YORKTOWNE CABINETRY PURCHASE ORDER TERMS AND CONDITIONS
1. ACCEPTANCE – AGREEMENT
These terms and conditions govern all Purchase Orders issued by Purchaser to the Seller indicated on the Purchase Order. Seller’s commencement of work on the goods subject to any Purchase Order or shipment of such goods, whichever occurs first, shall constitute acceptance of the Purchase Order and these Terms and Conditions. Any acceptance of a Purchase Order is limited to the express terms contained on the face of any applicable Purchase Order and these Terms and Conditions (the “Contract Terms). Unless expressly agreed to in writing by an authorized representative of Purchaser, any proposal for additional or different terms or any attempt by Seller to vary in any degree any of the terms of this offer in Seller’s acceptance is hereby objected to and rejected and these Contract Terms shall be the complete and exclusive statement between Seller and Purchaser.
2. TERMINATION FOR CONVENIENCE OF PURCHASER
Purchaser reserves the right to terminate any Purchase Order or any part thereof for its sole convenience upon giving notice to Seller. In the event of such termination, Seller shall immediately stop all work, and shall immediately cause any of its suppliers or subcontractors to cease such work. Purchaser shall be liable to Seller only for services satisfactorily performed or conforming goods delivered prior to notice of termination. Seller shall neither be paid for any work done after receipt of the notice of termination nor for any costs incurred by Seller, Seller’s suppliers or subcontractors, including costs of raw materials.
3. TERMINATION FOR CAUSE
Purchaser may also terminate any Purchase Order or any portion thereof for cause in the event Seller fails to comply with any of the Contract Terms. In addition, deterioration in Seller’s financial condition, absent reasonable assurances of future performance, shall allow Purchaser to terminate any Purchase Order for cause.
4. PROPRIETARY INFORMATION – CONFIDENTIALITY – ADVERTISING
Seller shall consider all information furnished by Purchaser to be confidential and shall not disclose any such information to any other person or use such information itself for any purpose other than performing its obligations under the Purchase Order. This paragraph shall apply to all drawings, specifications, or other documents prepared by Seller for Purchaser in connection with the Purchase Order. Seller shall not advertise or publish the fact the Purchaser has contracted to purchase goods from Seller, nor shall any information relating to the order be disclosed without Purchaser’s written permission. Upon request of Purchaser, Seller shall return or destroy all such information. Seller’s obligations under this paragraph survive the cancellation, termination, or completion of the Purchase Order.
5. WARRANTY
Seller warrants that all goods and services furnished to Purchaser as a result of any Purchase Order have been manufactured, distributed, and delivered in compliance with all applicable federal, state and local laws, regulations and ordinances. Seller expressly warrants that all goods or services furnished pursuant to this Purchase Order shall (i) conform to all applicable specifications, descriptions and appropriate standards and will be free from defects in material and workmanship, (ii) be merchantable, safe and appropriate for the purpose for which the good services of that kind are normally used, and (iii) be free and clear of all liens and encumbrances, good title thereto being in Seller. If Seller knows or has reason to know the particular purpose for which Purchaser intends to use the goods or services, Seller warrants that such goods or services will be fit for such particular purpose. Seller warrants that goods or services furnished hereunder will conform in all respects to samples previously provided and to the most current specifications. Seller’s warranty shall run to Purchaser, its successors, assigns and customers, and users of goods sold by Purchaser pursuant to this Purchase Order. In the event of failure of Seller to correct defects in or replace nonconforming goods or services promptly, Purchaser, after reasonable notice to Seller, may make such corrections, replace such goods or services and charge Seller for the cost incurred by Purchaser in doing so.
6. PRICE
Seller warrants that the prices for the goods sold hereunder are not less favorable than those currently extended to any other customer for the same or similar goods in similar quantities after taking into effect all discounts and rebates. In the event Seller reduces its price for such goods during the term of any Purchase Order, Seller agrees to reduce its price for such goods during the term of any Purchase Order, Seller agrees to reduce the prices hereof correspondingly. Seller warrants that the prices shown on the Purchase Order shall be complete, and no increase in prices or additional charges of any type, including surcharges, shall be added without Purchaser’s express written consent. Unless otherwise stated in the Purchase Order, delivery of goods shall be DAP destination (Purchaser’s plant location) with Seller to incur freight, boxing, packing or other charges.
7. FORCE MAJEURE
Purchaser may delay receipt or acceptance of goods of services pursuant to this Purchase Order if the delay is occasioned by causes beyond its control. Seller shall hold such goods at the direction of the Purchaser and shall deliver them when the cause affecting the delay has been removed. Purchaser shall be responsible only for Seller’s direct additional costs of holding the goods delaying performance hereunder at Purchaser’s request.
8. INDEMNIFICATION
Seller shall, at Seller’s sole cost and expense, release, defend, indemnify and hold harmless Purchaser, its directors, officers, agents, and employees from, and against, any and all damages, liabilities, claims. losses, and expenses (including reasonable attorney fees) arising out of, or resulting in any way from (i) any alleged defect or non-conformity in the goods or services purchased hereunder, (ii) any act of omission of Seller, its agents, employees, or subcontractors, (iii) any recall of the goods in conjunction with the Consumer Products Safety Commission, or (iv) any claim that the goods or services infringe a patent, copyright, trademark, trade secret or other intellectual property right of a third party.
9. INSURANCE
Seller agrees to carry and to furnish certificates from its insurance carrier to Purchaser showing that it carries insurance in the following minimum limits: (a) worker’s compensation – statutory limits for states in which the work is to be performed, (b) general liability with minimum limits of $1,000,000 each occurrence, and in the aggregate (c) auto liability with minimum limits of $1,000,000 each occurrence and in the aggregate. Seller agrees to obtain and provide to Purchaser certificates reflecting vendor’s endorsements under such insurance policies naming Purchaser as an additional insured thereunder. All policies of insurance specified herein shall provide, at the request of Purchaser, that the coverage thereunder shall not be terminated without at least ten (10) days’ prior written notice to Purchaser.
10. INSPECTION/ TESTING
Payment for or receipt of the goods delivered hereunder shall not constitute acceptance thereof. Purchaser shall have the right to inspect such goods and reject any of all of such goods which are in the Purchaser’s sole judgment defective or non-conforming. Goods rejected hereunder may be returned to Seller at its expense, and, in addition to Purchaser’s other rights, Purchaser may charge Seller all expenses of unpacking, examining, repacking and reshipping such goods. In the event Purchaser received goods whose defects or non-conformity is not apparent on examination, Purchaser reserves the right to reject or revoke any acceptance of such goods and to require replacement as well as payment of damages. If any inspection or test is to be made on the premises of Seller, Seller without additional charge shall provide all reasonable facilities and assistance for the safety and convenience to the inspectors in the performance of their duties.
11. ENTIRE AGREEMENT
Except as provided in written contract executed by both Purchaser and Seller, these Contract Terms constitute the entire agreement between the parties concerning the goods and/or services specified herein. The terms and provisions hereof may not be modified in the absence of the prior express written consent of Purchaser.
12. ASSIGNMENTS AND SUBCONTRACTING
No part of this order may be assigned or subcontracted without the prior written approval of Purchaser.
13. SET – OFF
All claims for money by Seller against Purchaser shall be subject to deduction or offset by any claim for money of Purchaser against Seller arising
out of this or any other transaction.14. REMEDIES AND WAIVER
Purchaser’s remedies shall be cumulative and shall include any and all remedies allowed by law or equity. Purchaser’s failure to insist on performance of any of the terms of conditions herein or to exercise any right or privilege or Purchaser’s waiver of any breach hereunder shall not thereafter waive any other terms, conditions, or privileges, whether of the same or similar type.15. DELIVERY
Time is of the essence hereof, and if the delivery of goods or services is not completed by the date set forth in the Purchase Order, Purchasers reserves the rights and remedies, to terminate this Purchase Order and to purchase substitute goods or services elsewhere and charge Seller with any loss incurred. No partial shipments may be made without Purchaser’s written consent. Purchaser has the right to cancel any outstanding balance. Goods supplied in excess of quantities called for hereunder may be returned to Seller at its expense, and, in addition to Purchaser’s other rights, Purchaser may charge Seller all expenses of unpacking, examining, repacking and reshipping such good. Seller shall report any delays in delivery schedule immediately as they become known to the Seller. Purchaser may, upon reasonable notice to Seller, cancel schedules specified in the Purchase Order.
16. LIMITATION ON PURCHASER’S LIABILITY – STATUTE OF LIMITATIONS
IN NO EVENT WILL PURCHASER BE LIABLE TO SELLER OR ANY THIRD PARTY, IN CONTRACT, TORT OR OTHERWISE, FOR ANY LOSS OF PROFITS OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING FROM OR AS A RESULT OF THIS PURCHASE ORDER OR ANY AGREEMENT BETWEEN THE PARTIES RELATING TO THE PRODUCTS OR SERVICES SUPPLIED HEREUNDER, EVEN IF PURCHASER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Any action resulting from any breach on the part of Purchaser as to goods or services delivered hereunder must be commenced within one year after the cause of action has accrued.
17. SHIPPING PACKING AND RISK OF LOSS
All goods shall be suitably packed, marked with Purchaser’s purchase order number and shipped in accordance with shipping instructions specified herein and other wise in accordance with the requirements of common carriers so as to obtain the lowest transportation cost. No charge shall be made to Purchaser for boxing, packing, carting unless specifically itemized on the face hereof. Seller shall be liable to Purchaser for any loss or damage resulting from Seller’s failure to act so as to provide adequate protection during shipment. Unless the Purchase Order indicates that the goods are Ex Works, risk of loss or damage in transit shall be Seller’s sole responsibility and liability until conforming goods are delivered to and accepted by Purchaser. Additional expenses, with other shipping instructions, or improper description of the shipment and shipping documents shall be assumed by Seller. Purchaser’s purchase order number must be placed on all invoices and shipping papers.
18. PURCHASER PROPERTY
Any materials, parts or tools furnished by Purchaser with a Purchase Order shall be deemed to be held by Seller on consignment, shall remain the property of Purchaser and shall be returned to Purchaser on demand. Seller agrees to maintain said materials in proper working order and repair and to protect them against loss or damage. Seller further agrees to mark or tag said materials (insofar as practical) to clearly indicate Purchaser’s ownership thereof.
19. TAXES
Purchaser shall not be liable for any taxes, duties, customs or assessments in connection with the purchase and/or delivery of goods ordered
hereunder, except such as are expressly set forth on the face hereof.20. CHANGES
Purchaser may make changes in drawings, specifications, quantities, delivery schedules or methods of shipment or packaging on any item at any time. If such changes result in an increase or decrease in costs, and equitable adjustment of price and delivery schedule may be made, or Purchaser may, as its option, terminate the Purchase Order if agreement on an equitable adjustment cannot be reached. Seller must assert claims for equitable adjustment within ten (10) days of the change order. This order together with any change orders or instructions approved by Purchaser in writing shall constitute one integrated contract.
21. WAIVERS OF LIEN
Seller shall furnish all necessary lien waivers, affidavits, or other documents required to keep the property and premises of Purchaser, or Purchaser’s customers or assignees, free from all liens, claims, encumbrances or assessments arising out of the furnishing of labor, material or equipment by any party or entity in regard to the performance of this Purchase Order, as payments are made from time to time hereunder.
22. EQUAL OPPORTUNITY CLAUSE, FAIR LABOR STANDARDS ACT, AND COMPLIANCE WITH OTHER RELEVANT FEDERAL LAWS
By acceptance of this Purchase Order, Seller hereby warrants and represents to Purchaser that Seller shall comply with the Fair Labor Standards Act and all other applicable federal, state, and local laws, regulations and orders and shall, upon request, furnish to Purchaser a certificate to such effect. The Equal Opportunity Clause in Title 41; Part 60-1.4 of the Code of Federal Regulations (Paragraphs 1-7 of President’s Executive Order 11246), the Employment of the Handicapped Clause in Title 41, Part 60-741.4, of the Code of Federal Regulations, are incorporated herein by reference if and to the extent applicable.
23. We may, at our sole discretion, provide you with certain materials produced by us including without limitation, digital images, video, audio, and printed materials (“Assets”). You acknowledge that we maintain all ownership rights to the Assets. The Assets are provided under a non-exclusive and revocable license from us to you for the sole purpose of use in promoting our products. The Assets shall be used in a reasonable manner and, if instructions are provided by us, in the manner requested thereby, any we may, at our sole discretion, instruct you at any time to cease any use of the Assets. You may not translate, recast, edit, alter, modify, or create any derivative work without our express written permission and may not license, sublicense, or otherwise grant the rights given to you under this license to a third-party. You will protect the Assets and will provide us notice of any actual, suspected, or threatened misuse or infringement of the Assets. You agree to indemnify, defend, and hold us harmless against any third-party claim of whatever kind arising out of your use of the Assets.
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