Purchase Order Terms & Conditions
- Acceptance This Purchase Order constitutes Buyer's offer. It becomes a binding contract when accepted by either acknowledgment or performance. THIS PURCHASE ORDER MAY BE ACCEPTED ONLY ON THESE TERMS AND CONDITIONS. ADDITIONAL OR DIFFERENT TERMS, WHETHER IN AN ACKNOWLEDGMENT, INVOICE OR OTHER DOCUMENT, SHALL NOT BECOME PART OF THIS PURCHASE ORDER UNLESS AGREED TO IN WRITING BY BUYER.
- Invoices Invoices shall contain the Purchase Order number, description of goods, quantity, prices and applicable taxes. Payment of the invoice shall not constitute acceptance of the goods. Buyer may at any time offset any sums owed by Seller. The invoice shall be delivered when the goods are shipped. Buyer shall not be liable to pay for any goods shipped in excess of the quantity ordered.
- Cash Discounts All prompt payment discount time periods shall commence on the later of (i) the scheduled delivery date, (ii) the actual delivery date, (iii) the date of receipt of a conforming invoice. Payments shall be deemed made on the date of mailing of Buyer's check.
- Taxes Unless otherwise specified, the purchase price includes all applicable taxes.
- Delivery\Shipping\Risk of loss Time is of the essence. Goods shall be shipped according to shipping instructions provided by Buyer or, if none, by the best route and mode of transportation. No partial or COD shipments shall be made unless agreed in writing by Buyer. Unless otherwise agreed by Buyer in writing, all goods shall be packed, packaged, marked and otherwise prepared for shipment in a manner which is in accordance with good commercial practice, acceptable to common carriers and adequate to insure safe arrival of the goods at the named destination. No charge will be allowed for packaging unless specifically agreed in writing by Buyer. Seller shall, irrespective of any FOB point provided, bear all risk of damage or destruction to the goods until acceptance by Buyer at the delivery destination. Seller shall be liable for any cost, loss or liability (including any cost, loss or liability resulting from delay in receipt of shipments) incurred by or for the account of Buyer as a result of Seller's failure to comply with this paragraph.
- Specifications All goods ordered must strictly comply with the current specifications therefor. Buyer may make changes in the specifications, delivery date, quantity shipping instructions by written notice to Seller not later than ten (10) days prior to the scheduled delivery date. In such event, the purchase price and time of performance shall be equitably adjusted.
- Warranty Seller represents and warrants as follows: (i) Seller is fully capable of producing the goods in accordance with the terms of this Purchase Order, (ii) the goods will comply with the terms of this Purchase Order, (iii) the goods will be free from defects, including in labor, materials, design (unless designed by Buyer) and fabrication for a period of one (1) year following their installation, and (iv) the goods will be merchantable and fit for their intended purpose. Such representations and warranties inure to the benefit of Buyer and its customers, and Seller hereby consents to Buyer’s assignment of Seller’s warranty obligations to Buyer’s customers. Seller waives any requirement that Buyer provide written notice of rejection or revocation of acceptance of goods as a condition to pursuing claims based on breach of warranty or otherwise. In the event of rejection or revocation of acceptance, Seller shall promptly repay to Buyer any part of the purchase price paid for the rejected goods. Seller shall be liable for Buyer's attorney's, consultant's and expert's fees and costs arising out of the enforcement of this provision.
- Inspection All goods are subject to inspection at all times, including the period of manufacture, prior to acceptance. Any inspection prior to acceptance shall be provisional only. If goods are subject to inspection and acceptance by Buyer's customer, under agreement with Buyer or otherwise, acceptance by Buyer shall be contingent upon inspection and acceptance by Buyer’s customer. Any rejected goods will be returned to Seller at Seller's cost and risk.
- Indemnity Seller shall indemnify, defend, and hold Buyer harmless from and against any and all claims, demands, costs, liabilities, penalties, damages and expenses, including actual attorney's, consultant's and expert's fees and costs, arising out of or relating to any defects or alleged defects in the goods or any breach or alleged breach of or failure of Seller to comply with any terms or conditions of this Purchase Order, including any representations or warranties, express or implied. Buyer shall have the right to reasonably approve counsel and direct the defense of any claims against it. Seller shall be liable for Buyer's attorney's, consultant's and expert s fees and costs arising out of the enforcement of this provision.
- Termination Buyer reserves the right to terminate this Purchase Order by written notice to Seller if Seller fails to deliver goods within the time specified or, if none, within a reasonable time, or if Seller otherwise fails to timely perform its obligations. Buyer may also terminate for convenience prior to delivery by written notice to Seller; provided that Buyer shall reimburse Seller for work done prior to delivery of such notice plus reasonable cancellation charges payable to vendors or subcontractors, all of which may not exceed the purchase price hereunder. Seller shall promptly ship to Buyer all materials paid for by Buyer hereunder.
- Patents/Indemnity Seller warrants and represents that Buyer’s use and/or resale of the goods supplied under this Purchase Order does not infringe on any patent, trademark, or other intellectual property rights of and third party. To the extent necessary, Seller grants to Buyer an irrevocable, non-exclusive, worldwide license to make, have made, use or sell any inventions made by or for Seller in the performance of this Purchase Order. Seller hereby indemnifies Buyer from and against any and all claims, of any kind or nature, arising out of or related in any way to any claim, by any party, that Buyer’s use or resale of the goods supplied under this Purchase Order infringe upon any patent, trademark, intellectual property, ownership or possessory right of any person.
- Confidential Information All information related to Buyer’s customers and clients, including Buyer’s customer lists, supplier lists, contacts and information, all specifications, drawings, samples, technical information, tools, equipment and other materials furnished or paid for by Buyer (separately or amortized in good pricing) and all of Buyer's other confidential information, whether or not specifically designated as such, including, without limitation, customer lists and information, inventions, improvements, methods, business plans and the like, shall be kept confidential by Seller and disclosed only to its personnel on a need to know basis for the benefit of Buyer without the prior written consent of Buyer. Seller shall be liable for Buyer's attorney's, consultant s and expert's fees and costs arising out of the enforcement of this provision.
- Non-Solicitation. During longer of (i) the term of any agreement to which this Purchase Order relates and (ii) until the last goods ordered hereunder have been delivered, Seller shall not solicit or contact Buyer’s customers or other suppliers in connection with the provision of any goods or services similar to or competitive with those goods or services that are the subject matter of this Purchase Order. Additionally, without limiting Buyer’s obligations under Section 12 (Confidential Information), Seller shall not use any confidential information of Buyer to solicit, or in connection with the provision of any goods or services to Buyer’s customers or suppliers. Violation of this Section 13 shall be a material breach of these terms and conditions.
- Limitation of liability Buyer shall not be liable for any special, indirect, incidental, consequential or punitive damages, whether or not Buyer has been advised of the foreseeability of such damages.
- Assignment/Subcontracting Buyer reserves the right, upon written request, to approve Seller’s assignment or subcontracting of any of Seller’s work under this Purchase Order. 15. Waiver Failure by Buyer to strictly enforce any provision of this Purchase Order shall not be deemed a waiver of such provision or create a course of dealing between the parties pursuant to which strict performance by Seller is not required.
- Dispute Resolution Any action arising out of this Purchase Order shall be resolved by binding arbitration in Contra Costa County, California in accordance with the rules of JAMS
- Governing Law This Purchase Order is entered into and shall be governed by, construed and enforced in accordance with the laws of the State of California, excluding its conflict of law rules.
- Attorney’s Fees. In any action brought by a party hereto to enforce or interpret this Purchase Order, the prevailing party in such action shall be entitled to the award of its reasonable attorneys’ fees and costs, in addition to such other relief as may be awarded.
- Entire Agreement This Purchase Order, together with any applicable product specifications, constitutes the entire agreement of the parties and may not be amended except in writing signed by both parties.