TERMS AND CONDITIONS
ACCEPTANCE/ACKNOWLEDGMENT – This Purchase Order constitutes Buyer’s offer to Supplier upon the Terms and Conditions stated herein and on the face of the actual Purchase Order, and does not constitute any acceptance by Buyer of an offer to sell. The shipment of any goods or the furnishing of any services (or delivery of any deliverable arising there from) or the presentment of an invoice in connection with such goods and services, shall constitute acceptance by Supplier of this Purchase Order (“PO” or “Order”) and each and all of the Terms and Conditions stated herein. These Terms and Conditions constitute the entire agreement between the parties and no change to or modification of this PO shall be binding upon Buyer unless signed by an authorized representative of Buyer. All terms and conditions contained in any prior proposal or acknowledgment of this Order which are different from or in addition to the terms and conditions of this Order are hereby rejected and shall not be binding on Buyer. If Supplier objects to any of the Terms and Conditions hereof, the Supplier shall notify Buyer in writing within three business days after issuance of this Purchase Order and withhold acceptance of the PO until such objection is settled by written agreement. Buyer reserves expressly the right to revoke this Order at any time prior to receipt of notice of acceptance by Supplier.
REJECTIONS/RETURNS – Buyer reserves the right to refuse any goods or deliverables and to cancel all or any part of the PO for goods or deliverables (a) not conforming to applicable specifications, drawings, samples or descriptions, (b) not conforming to the requirements of this Order, or (c) defective in material or workmanship. Acceptance of any part of the PO shall not bind Buyer to accept future shipments of non-conforming or defective goods or deliverables, nor deprive it of the right to return non-conforming or defective goods or deliverables already accepted. Goods and deliverables, if rejected, will be returned to Supplier at Supplier’s expense for transportation both ways and no replacement or substitution shall be made unless so authorized in writing by Buyer. If any of the goods and/or services furnished hereunder are found at any time to be defective in material or workmanship or otherwise not in conformity with the requirements of this Order, Buyer, in addition to any other rights which it may have under all applicable warranties or otherwise, may at its option correct or have corrected the nonconformity at Supplier’s expense. Final acceptance shall not be conclusive with respect to latent defects, fraud or such gross mistakes as amount to fraud or with respect to the Buyer’s rights under the “Warranty” clause.
QUANTITY – The quantity stated in this Order is the maximum quantity which Supplier may supply in fulfillment of the Order and, any trade custom to the contrary notwithstanding, any product shipped in excess of the stated quantity shall be returnable at Supplier’s expense. Buyer’s count shall be accepted as correct as to the quantity it received.
FREIGHT TERMS, PACKAGING AND SHIP VIA – No transportation or packaging charges will be placed on the invoice unless specifically agreed to, in writing, by Buyer. When transportation or packaging charges have been agreed to, they will be identified and listed as separate line items on Supplier’s invoice. All goods purchased on freight terms “Collect” shall be shipped via carriers nominated by Buyer. If nominated carrier is not available or deemed by Supplier as unsuitable, Supplier shall request alternate carrier from Buyer.
SHIPPING TERMS – Unless otherwise specified by Buyer, delivery of goods is to be F.O.B. Destination. If goods are to be shipped F.O.B. (Origin) shipping point, and Buyer has not designated routing, Supplier is required to ship via the most economical method that will meet delivery date. Buyer is not liable for extra charges for packing, cartage or any other expense related thereto unless stated in this Order. Deliveries shall be strictly in accordance with the schedule set out or referred to in this Purchase Order and in exact quantities ordered. All goods shall be prepared and packed for shipment in a manner that will prevent damage in transit. Supplier bears all risk of loss or damage in transit and until title passes to Buyer. Title to said goods to pass to Buyer only upon delivery to Buyer’s specified end destination and acceptance of the goods by Buyer, regardless of risk of loss. Delivery in advance of the specified Buyer’s shipping date, however, will not cause passage of title, transfer of risk of loss and/or establish FOB point. Supplier shall provide a packing list to Buyer for all shipments referencing purchase order number, part number, and quantity shipped. Bills of lading, if any, shall also reference purchase order number, part number, and quantity shipped.
WARRANTY – Supplier warrants that (a) it has clear title to all goods and deliverables furnished subject to the PO: (b) that the goods and deliverables are being delivered free and clear of any and all claims and encumbrances; and (c) that all goods and services provided by Supplier (i) shall be of good quality and workmanship and free of defects, latent or patent, (ii) shall conform to all specifications, drawings or descriptions which are supplied by Buyer, and (iii) shall be merchantable, suitable, and fit for their intended use (collectively, the “Supplier’s Warranty”). Supplier may not negate, exclude, limit or modify any warranty otherwise available to Buyer. Any attempt by Supplier to do so is ineffective and shall not in any way bind Buyer. Buyer’s inspection or acceptance of any goods or services, or Buyer’s payment for goods or services shall not constitute a waiver by Buyer of any warranty or shall release or discharge Supplier from liability for damages resulting from a breach of Supplier’s Warranty. None of the remedies available to Buyer for breach of any of the foregoing warranties may be limited unless explicitly agreed to in writing by Buyer. The aforesaid warranties shall survive acceptance and payment and shall run to Buyer, its customers and their successors in title and shall not be deemed to be exclusive, but shall be in addition to Buyer’s other rights under the terms of this Order or at law or equity.
SUPPLIER RESPONSIBILITIES – Supplier shall (i) provide to Buyer the goods and deliverables ordered in accordance with the terms stipulated in this PO and in any applicable written agreement pursuant to which the PO was issued, if any; (ii) keep Buyer advised of the status of the PO; (iii) permit duly authorized representatives of Buyer to review and observe, from time to time upon reasonable notice, the delivery of the goods and services; (iv) provide Buyer with such reports as are appropriate to the nature of the goods and services ordered and as may be reasonably requested by Buyer from time to time; and (v) keep, for orders requiring payment based on hours worked, cost of materials used and/or expenses incurred, records of hours worked, cost of materials used, and reasonable out-of-pocket expenses incurred in filling this Purchase Order, which records Buyer’s duly authorized representatives may examine from time to time upon reasonable notice.
INFRASTRUCTURE – Supplier shall determine, provide and maintain the infrastructure needed to achieve conformity to product requirement. Supplier shall determine the necessary competence for personnel performing work affecting product quality and shall provide training or take other actions to satisfy these needs. Suppliers are responsible for monitoring their manufacturing processes and performance and for conducting sufficient process control, inspection, testing proactive and preventative measures to assure that all materials delivered to Buyer are in full compliance to specifications. Regardless, the Supplier is responsible for each part conforming to specifications.
NOTIFICATION OF CHANGE – Supplier shall give sufficient written notice to the Buyer prior to shipment of any changes in raw material, manufacturing processes, manufacturing location or test method for mutual assessment of the probable effect on the Buyers process or product performance. If the change results in a quality issue and the Buyer was not notified of the change, the Supplier will assume responsibility for any rework charges incurred by the Buyer due to the quality of the Supplier’s part or Buyer can return them.
UNCONTROLLABLE CIRCUMSTANCES – Buyer may, at any time and from time to time, at Buyer’s option, suspend performance for a reasonable time, on all or any portion of this contract if Buyer is limited in so performing or is unable to perform because of any casualty, interruption of business, event, or circumstance beyond Buyer’s reasonable control, including, without limitation, acts of God, fires, explosions, bombings, floods, civil commotions, riots, labor disputes, strikes, lockouts, boycotts, picketing or other industrial disturbances, declared or undeclared wars, military or police actions, blockades, embargoes, insurrections, delays or carriers, accidents to machinery or equipment, failure or curtailment or delay of Buyer’s operations (whether due to obtain inventory, parts, fuel, equipment or labor at reasonable prices and costs, or not ), restraints of rulers or people, changes in applicable laws, or imposition of government priorities, regulations, or other governmental restrictions or controls, either suggested or mandatory. On any such suspension, Buyer shall not have or incur any liability, and Supplier shall continue performance of any portion hereof which is not suspended.
RIGHT TO INSPECT – Supplier agrees that Buyer may inspect the products upon Buyer’s request, either before or after delivery. Regardless of an earlier inspection, acceptance shall be final only after a final inspection within a reasonable time after the products are received. Payment prior to final inspection shall not constitute an acceptance. No acceptance shall be binding on Buyer as to latent detects. It is understood that this clause is not intended to relieve the Supplier of any liability it would otherwise lawfully bear even after Purchaser’s final inspection and acceptance. Supplier shall be responsible for asserting claims for loss or damage in transit against the carrier or carriers.
(a) The delivery of goods, services and deliverables shall strictly comply with the delivery date or delivery schedule, of any, specified by Buyer. If at any time it appears Supplier will not meet such delivery date reschedule, Supplier shall promptly notify Buyer in writing of reasons for, and the estimated duration of, any delay. In the event of any delivery delay by Supplier, if requested by Buyer, Supplier will ship delayed goods by any necessary means to avoid or minimize delay to the maximum extent possible, and the added cost to be borne by Supplier. Shipments in excess of quantities or in advance of schedule delivery dates as shown herein are not to be made without Buyer’s written approval. Buyer reserves the right to return at Supplier’s expense any shipments received contrary to this instruction. Buyer may exercise its other remedies, such as cancellation of the PO after 30 days for non-compliance, cover and incidental and consequential damages.
(b) In addition, Buyer reserves the right to cancel this Purchase Order, or any part thereof, at any time, and from time to time, even though Supplier is not in default hereunder, by giving written notice of the cancellation to the Supplier. In the event of a cancellation where Supplier is not otherwise in breach of this Order, Buyer shall pay for all goods and deliverables delivered and completed and an equitable settlement shall be arrived at for the costs incurred by Supplier for goods and materials in process not to exceed the aggregate committed quantity and/or price specified in this Purchase Order. Upon receipt of any notice of cancellation hereunder, Supplier, unless otherwise directed in writing by Buyer, will immediately discontinue all work in progress, immediately cancel all orders or subcontracts given or made pursuant to this Purchase Order and shall comply
(c) with Buyer’s instructions concerning disposition of completed and partially completed items, work in progress and materials acquired pursuant to this Order. Exercise by Buyer of the right of cancellation reserved in this paragraph shall not give rise to any liability on the part of the Buyer except as specified in this paragraph and shall not have the effect of waiving damages the Buyer might otherwise be entitled to. In no event shall the Supplier be entitled to recover incidental or consequential damages.
TAXES – Supplier agrees to pay taxes imposed by the law upon or on account of the material covered by this Purchase Order unless otherwise noted in writing signed by Buyer. The Order price shall be deemed to include such taxes.
LABOR – Supplier warrants that in the performance of this order it will comply with the Fair Labor Standard Act of 1938 and any amendments thereto.
EEO – Supplier agrees to provide equal employment opportunities to all persons without regard to race, color, religion, sex, age, national origin, citizenship or handicap applicants for employment, promotion, transfer and training and considered solely on the basis of their qualifications and ability to perform the job and to comply with all applicable laws and all rules and regulations of the Department of Labor relative to Equal Opportunity and its implementation, to which Supplier shall, on Buyer’s request, so certify.
MINORITY VENDORS – Buyer encourages Supplier to provide maximum practicable opportunities to include Minority subcontractors and vendors among its sources of supply. Minorities include, but are not limited to Black Americans, Asian Pacific Americans, and Asian-Indian Americans. A Minority business is at least 51% owned by a Minority or group of Minorities.
COMPLIANCE WITH LAW – Supplier agrees that it is solely responsible for compliance with all applicable federal, state or local laws, ordinances, regulations, rules and standards relating to the design, manufacture, labeling, sale and transportation of the product, and agrees to indemnify Purchaser against any loss, liability, cost, damage or expense whatsoever (including reasonable attorneys’ fees) incurred by Purchaser because of Supplier’s violation thereof. Without limiting the foregoing, Supplier warrants that the products have been produced in compliance with the requirements of the FDA, as applicable, the Fair Labor Standards Act, as amended, and all applicable regulations and orders issued thereunder and with the equal opportunity clause of Section 202 of the Executive Order 11246 as amended.
PROPRIETARY INFORMATION – Any information furnished to Buyer relating to or as a result of this Order shall be considered non confidential unless otherwise agreed to by Buyer in a separate written agreement. All technical information supplied by Buyer and designated as confidential, shall be held in confidence by Supplier. Such information shall not be reproduced, used, or disclosed to others by the Supplier without Buyer’s prior written consent, and shall be returned to Buyer upon the completion of Supplier’s obligation under this Order or upon demand.
PAYMENTS – Unless otherwise specified by Buyer, payment terms will be as per this Purchase Order unless otherwise set out in an individual written agreement agreed upon between Buyer and the Supplier. Buyer may withhold payment of any amounts to be paid to Supplier which are disputed in good faith by Buyer.
LIENS – Supplier agrees to indemnify and save harmless Buyer against any and all liens and encumbrances arising out of Supplier’s performance of this Purchase Order.
WAIVER – Failure of Buyer or Supplier to insist on performance of any of the Terms and Conditions of this Purchase Order shall not be construed as a waiver of such Terms or Conditions and shall not affect the right of either party thereafter to enforce them.
PERFORMANCE – TIME IS OF THE ESSENCE WITH REGARD TO THIS PURCHASE ORDER
SET-OFF – Buyer shall be entitled at all times to set-off any amount owing at any time from Supplier to Buyer against any amount payable at any time by Buyer in connection with this Order. PATENT AND COPYRIGHT INDEMNITY – Supplier represents and warrants that neither the merchandise nor the sale thereof covered by this Order will infringe upon or violate any trademarks, trade names, patents, copyright or other related property or legal rights. Supplier agrees to indemnify and save Buyer harmless from and against any and all claims, liability, loss, costs, attorneys’ fees, expenses and damages due to or arising from any such alleged infringement or violation.
INDEMNIFICATION – To the fullest extent permitted by law, Supplier agrees to indemnify, save harmless, and defend Buyer and its customers, directors, officers, members, employees and agents, from and against any loss, liability, cost, expenses, suits, actions, claims and all other obligations and proceedings whatsoever, including without limitation, all judgments rendered against, and all fines and penalties imposed upon them and any reasonable attorney’s fees and any other cost of litigation (hereinafter collectively referred to as “liabilities”) arising out of injuries to persons, including death, or damage to property, caused by Supplier, its employees, agents, subcontractors, or in any way attributable to the performance and prosecution of the work herein contracted for, including without limitation breach of warranty or product liability except that Supplier’s obligation herein to indemnify Buyer shall not apply to any liabilities arising from Buyer’s sole negligence.
CHANGES – Buyer may make changes to this PO including to drawings and specifications for specially manufactured goods, place of delivery, by giving written notice to Supplier. If such changes affect the cost of or the time required for performance of this PO, an equitable adjustment in the price or date of delivery or both will be made. No change by Supplier is allowed without written approval of Buyer. Any claim of Supplier for an adjustment under this Article must be made in writing within thirty (30) days from the date of receipt by Supplier of notification of such change. Nothing in this Article excuses Supplier from delivering the goods and services described in this PO.
ASSIGNMENT – This PO is assignable by Buyer. This PO may not be assigned by Supplier without written approval of Buyer.
STATE LAW – This Order shall be governed in all respects by the laws of the State of Connecticut and all actions commenced pursuant hereto shall be brought in a court of competent jurisdiction residing in the State of Connecticut.