Purchasing Terms & Conditions
This Order shall be construed and enforced in accordance with the laws of the State of New Jersey. Subject to Paragraph 17 hereof, Buyer and Seller hereby consent to the exclusive jurisdiction of the Superior Court, Law Division, of Camden County, New Jersey or the United States District Court for the District of New Jersey in any and all actions and proceedings arising hereunder and waive the right to object that the venue or forum is improper or inconvenient:
Seller shall not delegate or assign in any manner to any other person, firm or corporation the performance of any work or the supplying of any services under this Order. Any assignment or attempted assignment of this Order by Seller either of rights or of performance of duties hereunder, or of any monies payable hereunder shall be void and of no force or effect without, in each instance, the express written consent of Buyer.
The prices are as set forth on the reverse side hereof. No charge of any kind, including charges for boxing, packing, crating or cartage will be allowed unless specifically agreed to by Buyer in this Order. Prices is to cover net weight of material, unless otherwise agreed to by Buyer in this Order.
The contract between Seller and Buyer is embodied in the terms and conditions of this Order, together with any supplemental documents, specifications, drawings, notes, instructions, engineers notices or technical data referred to herein all of which are hereby incorporated by reference. All of such documents are hereinafter individually and collectively referred to, together with this Order as this “Order”. Seller accepts the terms of this Order by commencing performance hereunder or returning a written acknowledgement to Buyer in the event that Seller submits its own form of acknowledgement such submission shall constitute an agreement to the terms and conditions of this Order and any terms thereof at variance with this Order shall be ineffective unless specifically accepted in writing by Buyer.
Except as specified herein, Seller shall procure material, fabricate, ship products or perform services only in accordance with this Order. Buyer may from time to time change shipping instructions and schedules provided herein or contained in such written authorizations, or direct temporary suspension of scheduled shipments. Buyer reserves the right to change specifications, drawings, or quantities of the products or services covered by this Order, subject to equitable adjustment for any necessary increases or decreases in price or changes to time of delivery.
Transportation; Risk of Loss
Unless otherwise specified on the face of this Order, transportation of goods purchased with be F.O.B. Buyer’s plant, with freight prepaid by Seller, and all insurance costs payable by Seller. Risk of loss of goods ordered hereunder shall be Seller’s responsibility until such goods have been delivered to Buyer.
All products and services, shall be received subject to Buyer’s inspection, approval, count and testing to determine compliance with the provisions of this Offer, including the warranties set forth in Paragraph 10 hereof. Acceptance by Buyer of any part of the goods or services covered by this Order shall be without prejudice to Buyer’s right to reject any goods or services if such goods or services do not comply with the provisions of this Order. Buyer reserves the right to make such rejection at any time after the goods are examined or services evaluated notwithstanding the date of delivery or performance. If Buyer shall reject any goods or services received by Buyer hereunder, Buyer may, in its sole discretion and without prejudice to any rights and remedies available to Buyer at law or equity or under this Offer, (a) return such rejected goods to Seller at Seller’s risk and expense (including all freight charges) for rework or replacement, or (b) return all or any part of the goods delivered hereunder for full credit at the purchase price, (c) retain such rejected goods and repair such goods at Seller’s expense, or (d) consider this Order breached as to the rejected quantity and cancelled as to any unfilled portion of this Offer and to hold Seller liable for damages.
Seller guarantees, warrants, and represents that the projects ordered herein and their sale, use or disposal alone or in combination with other products will not infringe upon any United States or foreign patents, copyrights or trademarks or otherwise infringe upon any right of any third party and Seller agrees to indemnity, defend, protect and save harmless Buyer, its successors, assigns, customers, and users of its products against all suits and form all damages, claims, demands, costs or expenditures of any kind resulting from any actual or alleged infringement.
Time of the Essence
Time is of the essence of this Order. Whenever there shall be any delay whatsoever in the delivery of merchandise or services, Buyer shall have the right to withdraw this Order without any liability to Seller under Paragraph 11 hereof or otherwise. Seller shall be liable for any costs or damages incurred by Buyer as a result of such delays. Seller will immediately notify Buyer of any potential delay.
Seller warrants that the products and services covered by this Order shall conform to the terms of this Order and the specifications, drawings, samples or other descriptions furnished or specified by Buyer and will be satisfactory and sufficient for the purpose intended, merchantable, of good material and workmanship and free from defects. Seller agrees that this warranty extends to future performance of the goods. Seller also warrants that the products and services covered by this Order will conform to provisions of the Occupational Safety & Health Act. Seller’s warranties shall survive inspection, tests, and acceptance and shall run to Buyer and Buyer’s customers.
This order may be terminated by Buyer, with or without cause, in whole or in part at any time by written notice to Seller specifying the extent of such termination. They Buyer’s liability, if any, upon termination shall be limited to paying Seller, to the extent unpaid, the price for all products or services which have been fabricated or performed and delivered to Buyer in accordance with this Order. If Seller shall become insolvent, make a general assignment for the benefit of creditors, or any proceeding shall be instituted by or against it for any relief under bankruptcy or insolvency laws, or a receiver shall be appointed for Seller’s property or assets, Buy may, by delivery of written notice of termination to Seller, terminate this order in its entirety without liability and this Order shall be of no further force or effect.
Drawings, Dies, Tools, Materials, Etc.
Unless otherwise provided herein, Seller at its own expense, shall furnish, keep in good condition, and replace when necessary, all dies, tools, gauges, fixtures, patterns, and similar items (herein collectively called tooling) necessary for the production of the products ordered. Any material or property furnished to Seller by Buyer and any tooling furnished to Seller by Buyer or for which Buyer reimburses Seller in the purchase price or otherwise shall be deemed to be held by Seller under a bailment for the benefit of Buyer and shall be returned to Buyer on demand of Buyer. All such material, property, and tooling shall be marked as Buyer’s property, shall be held at Seller’s risk, and shall be insured, at Seller’s cost, for its full replacement cost.
Work on Buyer’s or Customer’s Premises
If Seller’s work under the Order involves operations by Seller on the premises of Buyer or one of its customers, Seller shall take all necessary precautions to prevent the occurrence of any injury to person or property during the progress of such work and, except to the extent that any such injury is due solely and directly to Buyer’s or its customer’s negligence (as the case may be), shall indemnify Buyer against all loss which may result in any way from any act or omission of seller, its agents, employees, or subcontractors. Seller shall maintain such public liability, property damage and employee’s liability compensation insurance as will protect Buyer from such loss and from any claims under any applicable Workmen’s Compensation and Occupational Disease Acts.
Seller shall comply with all applicable state, federal and local laws, rules and regulations and shall indemnify, defend and hold Buyer harmless from any loss, cost, damage, liability or expense resulting from Seller’s noncompliance. Seller guarantees that it will comply with the requirements of the United States Fair Labor Standards Acts, Section 202 of Executive Order 11246, as amended, relating to equal employment opportunity to all persons without regard to race, color, religion, sex, age or national origin, and the implementing rules and regulations prescribed by the Office of Federal Contracts (41 CFR Chapter 60) and incorporated therein, which are incorporated herein by specific reference.
No Waiver; Rights Cumulative
Failure by Buyer to enforce at any time or for any period of time any of the provisions hereof or to enforce any rights here for any period of time any of the provisions hereof or to enforce any rights herein conferred shall not be construed to be a waiver of such provisions or rights nor of the right of Buyer thereafter to enforce each and every such provision and to rely upon and exercise each and every such right. All rights, powers, privileges, and remedies of Buyer shall be cumulative and shall not preclude any other right, power, privilege or remedy to which Buyer would otherwise be entitled under applicable law.
Seller shall indemnify and save harmless Buyer from and against any and all claims, demands, actions, damages, losses, costs, fines, penalties, expenses (including reasonable attorneys’ fees) and liabilities of every nature which arise, directly or indirectly, in whole or in part, from a default by Seller hereunder, the goods or services furnished hereunder, a breach of any express or implied warranty of Seller or any negligent act of omission or other willful misconduct by Seller or any of Seller’s employees, subcontractors, agents or servants.
Any controversy arising out of the terms, conditions or written modifications of this Order shall be determined in accordance with the rules then in effect and under the auspices of the American Arbitration Association in Philadelphia, Pennsylvania, and such determination shall be final and binding.
Buyer, at its sole option, shall be permitted to prepay the price hereunder, from time to time, as progress is made by Seller in the production of the products covered by this Order (“progress Payments”). When and to the extent such Progress Payments are made hereunder, title to such products shall pass to Buyer (“Buyer’s Products”). Until their delivery in accordance with the terms of this Order. Buyer’s Products shall be held by Seller as bailee for the benefit of Buyer. Seller shall not do anything to impair or destroy Buyer’s ownership interest in and rights to Buyer’s Products, including without limitation, selling, pledging, mortgaging or otherwise encumbering Buyer’s Products. Seller shall sign and execute, alone or with Buyer, and does hereby authorize Buyer to sign and execute on behalf of Seller, as its attorney-in-fact, any UCC financing statements or such other documents reasonably requested by Buyer in order to evidence Buyer’s interest in Buyer’s Products. Notwithstanding the terms of this Paragraph 18, nothing herein stated shall be deemed to change, alter or contradict the terms of Paragraph 6 hereof.
The terms of this Order, including all of Buyer’s specifications, designs, and drawings, shall be kept confidential by Seller and shall not be disclosed to or used for the benefit of, any third parties without Buyer’s prior written consent.
All claims for money due or to become due from Buyer to Seller pursuant to this Order shall be subject to deduction or set-off by Buyer against any monies owned by Seller to Buyer as a result of this Order or any other transaction between Buyer and Seller.
Seller, for itself and each of its subcontractors, hereby waives the right to assert any lien against Buyer, or any property owned by Buyer. Seller shall indemnify, defend, and hold Buyer harmless from any loss, expense (including attorneys’ fees) or damage to Buyer resulting from seller or any of its contractors recording or attempting to record this Order or a mechanics’ notice of intention or otherwise attempting to assert a lien against Buyer or any property owned by Buyer. Seller will deliver to Buyer, before final payment by Buyer hereunder a duly executed release of liens from Seller and each subcontractor and each material man providing goods or services in connection with this Order.
This Order contains the entire and only agreement between Seller and Buyer respecting the subject matter hereof. Any representation, term of condition not incorporated herein shall not be binding upon either Seller or Buyer. No amendment or modification to this Order shall be binding upon Buyer unless set forth in a written amendment hereto executed by Buyer.