1. Terms and Acceptance. This order becomes a contract (1) when a signed acknowledgement is received by Buyer, or (2) when shipment according to schedule of all goods covered by this order shall be made, or (3) when Buyer gives Seller written approval of the price and delivery schedule of the goods as stated by Seller if Seller’s written acknowledgement of this order contains either: (a) a different price or delivery schedule or a different type of item, or (b) no price or no delivery schedule for the item or items to which Buyer’s approval applies. Except as provided in the preceding sentence, it is a condition of this order that any provisions printed or otherwise contained in any acknowledgment hereof, inconsistent with or in addition to the terms and conditions herein stated, and any alterations in this purchase order, shall have no force or effect, and that Seller by such acknowledgement thereby agrees that any such provisions therein or any alterations in this order shall not constitute any part of this contract or purchase and sale.
2. Inspection, Warranty. Goods delivered (whether paid for or not) are subject to inspection, testing, and approval by Buyer before acceptance. Seller expressly warrants that all articles, materials, and work will conform to the applicable drawings, specifications, samples, or other descriptions given in all respects, whether such drawings, specifications, samples or other descriptions are produced by Buyer or third parties contracting with Buyer, and that the goods delivered hereunder will be of good quality, material, and workmanship merchantable and free from defects. This warranty shall survive any inspection, delivery, acceptance, or payment by Buyer of the goods or services.
3. Nonconforming Goods. All goods not fully up to standard and not in compliance with the specifications hereof, or shipped contrary to instructions, or in excess of the quantities herein provided, or substituted for goods described, or not shipped in containers conforming to Buyer’s specifications (or, in the absence of such specifications, in recognized standard containers), or allegedly violated any statute, ordinance, or administrative order, rule, or regulation, may be rejected by Buyer and returned or held at Seller’s expense and risk. Buyer may charge to Seller all expense of inspecting, unpacking, examining, repacking, storing, and reshipping any goods rejected as aforesaid. The remedies herein above afforded to Buyer shall not be exclusive, but Buyer may hold Seller liable for any and all damages, including but not limited to compensatory, consequential and incidental damages, arising from any breach or default herein above set forth.
4. Price. Prices recorded in this order are not subject to increase. No additional amounts shall be chargeable to Buyer because of taxes or excises, presently of hereafter levied on Seller. If Seller’s quoted prices for the goods covered by this order are reduced (whether in the form of a price reduction, closeout, rebate, allowances, or additional discounts offered to anyone) at time of shipment, Seller agrees that the price to Buyer for such goods will be reduced accordingly, and that Buyer will be billed at such reduced prices. If price is not recorded on the face of this order, price shall be that of last previous order given by Buyer to Seller, subject to the provisions of this paragraph. If price includes taxes or excises, and if such taxes or excises or any part thereof are hereafter refunded to Seller, Seller shall immediately pay Buyer the amount of such refunded, Seller certifies that the prices herein are not higher than prices being charged to other organizations purchasing identical goods in similar quantities at this particular time and do not discriminate against purchaser.
The price herein specified is warranted against any decline that may be made by other Sellers of goods covered by this order; if at any time during these terms of this Agreement, a price shall be offered by such competing Sellers which is lower than the Seller may agree to, the Seller shall notify Buyer forthwith and allow the Buyer to buy three (3) months’ supply of the goods elsewhere and such quantity shall be deducted from the unshipped portion due the Buyer under the terms of this Agreement.
5. Price. Seller represents that the prices and terms of purchase, and any allowances available shall be in full compliance with The Robinson Patman Act.
6. Payment. Terms of payments are as previously arranged, or if specified in this order, then as so specified
7. Delivery time of Essence. Buyer’s schedules are based upon the agreement that the goods will be delivered to Buyer by the dates specified on the face of the purchase order. Time is therefore of the essence and if goods are not delivered within the time specified hereon, Buyer may reject such goods and cancel order. The acceptance of later or defective deliveries shall not be deemed a waiver by Buyer of its right to cancel this order, or to refuse to accept further deliveries.
8. Packing. Each package shall be numbered and labeled with Buyer’s order number, item number, contents, and weight, shall contain an itemized packing slip and shall be properly prepaid for shipment so as to secure lowest transportation and insurance rates and to meet carrier’s requirements, unless otherwise specified. No charges will be allowed Seller for packing, breaking, freight, express, or cartage unless stated herein.
9. Warranty Against Infringement. Seller Warrants that the sale or use of goods of Seller’s design or Seller’s patents covered by this order either alone, or in combination with other materials, will not infringe or contribute to the infringement of any patents or trademarks or copyrights either in the U.S.A. or foreign countries, and Seller shall defend every suit which shall be brought against Buyer or any party selling or using Buyer’s products for any alleged infringements of any patents, trademarks or copyrights, by reason of the sale or use of said materials either alone, or in combination with other materials and to pay all expenses and fees of counsel which shall be incurred in and above defending every such suit and all costs, damages, and profits recoverable in every such suit.
10. Trademark. If the goods specified within this order are peculiar to Buyer’s design or if the goods bear Buyer’s Trademark or identifying mark they shall not bear Trademark or other designation of the Maker or Seller and similar goods shall not be sold or otherwise disposed of to anyone other than Buyer without written consent of Buyer. The title to any and all drawings and blueprints, jigs, dies, patterns, tools, etc., used in connection with this order shall at all times vest in Buyer and shall upon completion of deliveries hereunder or upon termination of the agreement pursuant to which this order is issued, be delivered to Buyer upon request and Seller assumes all liability for loss thereof or for Seller’s failure to return such property to Buyer.
11. Compliance With Law. The performance of any work pursuant to this order is and shall be subject in all respects to and in compliance with all laws, rules, regulations, and ordinances, proclamations, demands, directives, executive orders, or other requirements of the municipal, state, and federal governments and all subdivisions thereof which now govern or may hereafter govern the manufacture, sale, or delivery of the parts, supplies, and goods contemplated by this order.
12. Indemnification By Seller. Seller will indemnify, hold harmless, and defend Buyer from all liability for loss, damage, or injury to person or property in any manner arising out of or incident to the performance of the contract.
13. Taxes. Seller accepts liability for payment of all payroll and Social Security taxes and all other federal, state, or local taxes now or hereinafter imposed by any government authority.
14. Conflicting Terms. If terms on this order do not appear on or agree with Seller’s invoice as rendered, Seller agrees that Buyer may change invoice to conform to this order and make payment accordingly.
15. Delegation Assignment. Seller shall not delegate or assign any duties or claims under this order without Buyer’s prior written consent. Any such delegation or assignment attempted without Buyer’s previous written consent shall effect, at Buyer’s option, a cancellation of all of Buyer’s obligations hereunder. All claims for moneys due or to become due from Buyer shall be subject to deduction by Buyer, for any setoff or counterclaim arising out of this or any other of Buyer’s orders with Seller, whether such setoff or counterclaim arose before or after any such assignment by Seller.
16. Modification. Buyer shall have the right to make, from time to time, and without notice to any sureties or assignees, changes as to packing, testing, destination, specifications, designs, and delivery schedule. Seller shall immediately notify Buyer of any increases or decreases in costs caused by such changes and an equitable adjustment of prices or other terms thereof shalt be agreed upon in a written amendment to this order.
17. Cancellation. Buyer reserves the right at any time and from time to time without cause, to cancel all or any part of the undelivered portion of this order by notice to Seller. In the event of such cancellation, Buyer shall not be liable to Seller for loss or anticipatory profits, nor any other incidental or consequential damages. The provisions of this paragraph shall not limit or affect Buyer’s right to terminate this purchase order for default of Seller.
18. Waiver of Liens. Seller hereby waives and relinquishes all liens and claims statutory or otherwise which Seller now has or may hereafter have as a result of labor done and materials furnished by Seller or Buyer in performance of the within order.
19. Default. Upon the happening of any one or more the following events, Buyer shall forthwith have the unrestricted right to cancel and terminate the within contract without cost of liability to the Buyer: (1) Seller’s insolvency or inability to meet obligations as they become due; (2) filing of voluntary or involuntary petition of bankruptcy by or against Seller; (3) institution of legal proceedings against Seller by creditors or stockholders; (4) appointment of a receiver for Seller by any court of competent jurisdiction. The acceptance of goods or performance after the occurrence of any of the events above enumerated shall not affect the right of the Buyer to cancel its additional obligations.
20. Miscellaneous. This contract contains the entire agreement of the parties, and failure of either party to enforce any of its rights hereunder shall not constitute a waiver of such rights or of any other rights hereunder. The validity, interpretation and performance of the contract shall be governed by the law in The State of Ohio. No modification of the agreement or waiver of the terms or conditions thereof shall be binding as Seller or Buyer, unless approved in writing by an authorized representative by both parties.
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