[THESE TERMS AND CONDITIONS DO NOT APPLY TO ORDERS PLACED PURSUANT TO PREVIOUSLY EXECUTED WRITTEN AGREEMENTS]
Vendor, by accepting this Purchase Order (this “Order”), expressly warrants and agrees with Buyer (as defined below) as follows:
1. “Buyer” shall mean the entity issuing this Order. However, Buyer may purchase the goods or services described in this Order with the intent to transfer such goods or services to one or more of Buyers affiliated or related companies or clients, and such affiliated or related companies or clients shall be deemed intended third-party beneficiaries under this Order and all rights of Buyer, and all obligations and warranties of Vendor, contained in this Order shall inure to the benefit of such affiliated or related companies or clients. In such event, the affiliated or related companies to which the goods or services are transferred shall be deemed to be a “Buyer” under this Order.
2. This Order may be accepted by Vendor only on the exact terms and conditions set forth herein, any attachment hereto and any document or agreement incorporated by reference, all of which shall constitute the final, complete and exclusive statement of the terms and conditions of the agreement between Vendor and Buyer regarding the purchase and sale of items/work covered by this Order; any additional or different terms and conditions contained in Vendors invoice or other document shall be deemed material alterations within the meaning of the Uniform Commercial Code, shall not become part of any agreement between Vendor and Buyer. In the event the terms of this Order conflict with the terms of any attachment hereto or any document or agreement incorporated by reference (including, without limitation, by imposing a greater obligation or liability upon Vendor than that imposed herein), the terms of such attachment, document or agreement shall control. If shipment is made of any part hereof, or if services are provided by Vendor hereunder, it is understood and agreed that the terms and conditions of this Order are satisfactory to and accepted by Vendor in their entirety, without modification, notwithstanding the lack of Vendors written approval hereof.
3. Vendor warrants that the items, work and products of the work: (a) shall strictly conform in all respects to the applicable sample, drawing, description and/or specifications; (b) shall be of first- class quality and free from defects in design, materials and workmanship; (c) shall be performed by qualified and competent personnel in accordance with the highest generally accepted professional and technical standards, in an expeditious and efficient manner consistent with sound professional practices; (d) shall be fit for the purpose(s) intended; (e) shall be free from any security interest, lien and/or other encumbrance; (f) shall be rightfully conveyed by Vendor with good and marketable title; (g) shall not infringe the rights of any third party; and ( h) shall comply (and that the manufacture of such items, work and product shall comply) with all applicable federal, state and local laws, codes, regulations and rules of the country of origin and the country of destination (provided that in the event of conflicting requirement, the more stringent requirements shall apply). Vendor shall obtain and pay for all necessary federal, state and local licenses and permits necessary to enable it to perform this Order (and upon Buyers request, Vendor shall furnish Buyer with copies of its receipts for such payments and of such licenses and permits). Vendor agrees to provide a certificate of compliance relative to the provisions of this paragraph with each shipment of goods or provision of services if Buyer so requests, and also agrees to permit Buyer, or its designees, upon reasonable notice, the right to inspect the testing records and procedures of the goods and services and to test goods for compliance with the provisions of this paragraph. Inclusion of express warranties and representations by Vendor shall not be deemed a waiver of such other warranties as may be implied or expressly set forth in law or fact.
4. Except as may otherwise be provided in this Order: (a) all prices specified herein shall be firm and Vendor warrants that such prices are not less favorable than those charged to other customers of Vendor for similar work or the same or like items in equal or smaller quantities; (b) all costs of insurance, packaging, storage and transportation shall be the sole responsibility of Vendor and all transportation costs resulting from deviation from shipping instructions and any other costs incurred by Buyer because of Vendors non-compliance with the terms and conditions of this Order, including, without limitation, shipping deadlines, shall be paid by Vendor or charged to Vendors account; (c) title and risk of loss or damage to any items or products of work shall be solely on Vendor and shall pass to Buyer only upon acceptance (except in the case of Work Product (as defined in paragraph 6 below) title, but not risk of loss, shall pass immediately upon the creation of the Work Product); (d) Vendor shall assume and pay all taxes (excluding federal, state and local sales, use and excise taxes, which Vendor shall collect and pay where applicable), fees, assessments and other charges required by law due to the sale of items or performance of work, all of which shall be separately itemized, with all nontaxable items, such as labor charges and charges for maintenance or support services, separately itemized and identified as nontaxable charges; (e) the number assigned by Buyer to this Order (the “Order Number”) shall appear on all tags, invoices, containers, bills of lading, express receipts, packing lists, or other documents relating to this Order; (f) shipment shall be accompanied by a shipping notice or a packing slip describing the contents of each package or container showing weight, quantity and Order Number; (g) Vendor shall show terms of payment on its invoice (any discount period offered by Vendor shall begin from the date the invoice is received by Buyer); (h) Vendor shall show federal excise, state and/ or local taxes, if any, separately on its invoice. and (i) Vendors invoices shall furnish such other detail and documentation as requested by Buyer, and payment of each invoice shall be subject to Buyers prior acceptance of the items/work and shall be due no earlier than 30 days following such acceptance or receipt of the invoice, whichever occurs later. Vendor shall execute a Form W-9 in the form specified by Buyer as a condition to being paid and acknowledges that payment hereunder by Buyer may be subject to tax withholding as required by applicable law. Before final settlement of Vendors obligations and payment by Buyer, Vendor shall satisfy Buyer of the payment and release of all debts, taxes, liens, claims, charges and obligations of Vendor arising by operation of law, or otherwise, out of Vendors performance of this Agreement. Buyer may withhold funds due Vendor hereunder or otherwise, without interest, sufficient to assure itself of the discharge of all such obligations, or to satisfy any provisions of law relating to any claims it may have against Vendor arising from this Agreement or its performance.
5. Time for Vendors performance is of the essence under this Order. Vendor shall immediately notify Buyer if Vendor will not be able to perform, deliver or complete all or any part of this Order by the specified delivery or completion date (and shall specify the earliest possible time for such performance, delivery or completion); whereupon Buyer shall have the option to cancel all or any part of this Order without obligation to Vendor other than notice and without prejudice to any of Buyers other rights or remedies under this Order or at law. Buyer shall have the right to inspect all items, work and products of the work and reject any and all items, work and products of the work which are not delivered or completed in the quantities ordered or by the specified date(s) or do not comply with any warranty or other requirement of this Order; however, in the event of acceptance, such action shall not be construed as a waiver of Buyer’s right to recover damages for late delivery or completion, nor shall Buyer be obligated to accept further items or work under this Order. To the extent Vendor is performing work under this Order, Buyer may terminate this Order at any time, without cause, upon 10 days written notice to Vendor; in such event, Buyers sole obligation to Vendor shall be to pay for work completed through the date of termination (including any proven loss of reasonable profits sustained based upon the percentage of work completed through the date of termination), provided Vendor complies with any instructions from Buyer in its notice, but in no event shall Vendor be entitled to recovery of any unabsorbed overhead, anticipatory profits or damages for termination except as expressly set forth in this paragraph.
6. Vendor shall maintain in strict confidence, and not disclose to any other person or entity, all nonpublic, confidential, proprietary and/or trade secret information acquired or learned from Buyer without Buyers prior written permission, which may be withheld in the absolute discretion of Buyer. For any item and/or work specially fabricated or produced, Buyer shall have exclusive right, title and interest in and to all inventions, works of authorship, methods, processes, designs, molds, tooling and other properties made or acquired by Vendor under this Order (collectively, “Work Product”) immediately upon the creation of such Work Product; and Vendor hereby grants and assigns to Buyer all such right, title and interest (including, without limitation, reproduction, manufacturing and moral rights throughout the universe in perpetuity and in all languages and in any and all media whether now or hereafter known) with respect to such Work Product and agrees to execute (and cause its employees and independent contractors to execute) any applications, registrations, assignments or other documents that Buyer deems necessary or appropriate to obtain all such right, title and interest. To the fullest extent permitted by law, Vendor acknowledges that the work to which this Order pertains, if it constitutes copyrightable subject matter, is work(s) made for hire for Buyer the copyright(s) for which are owned by Buyer or its designee and that to the extent that such work does not qualify as work(s) for hire, Vendor hereby assigns to Buyer all right, title and interest Vendor may have in the work.
7. While this Order remains in effect and for one year thereafter, Vendor shall maintain Product Liability and Commercial General Liability Insurance to include contractual and products/completed operations, with minimum limits of $2,000,000 on an occurrence form basis, and Automobile Liability coverage with minimum combined single limits of $2,000,000 protecting it and Buyer from claims for personal injury (including bodily injury and death) and property damage which may arise from or in connection with Vendors performance hereunder or from or out of any negligent act or omission of Vendor, its officers, directors, employees, agents or subcontractors. To the extent this Order includes Vendors performance of services on property owned, leased or designated by Buyer, Vendor shall also maintain Workers Compensation Insurance as required by applicable law and Employers Liability Insurance with minimum limits of $1,000,000 per occurrence. All such insurance shall be with companies and on forms acceptable to Buyer and shall provide that coverage may not be reduced or canceled unless 30 days prior written notice is furnished to Buyer. All insurance shall be primary and not contributory with regard to any other insurance available to Buyer. All insurance shall be written by companies with a BEST Guide rating of B+VII or better, and such policies shall contain a waiver of subrogation and, except for Workers Compensation and Employers Liability, shall include Buyer, its parent and all subsidiary and affiliated companies as additional insurers. Before providing any goods or services hereunder, Vendor will provide Buyer a certificate evidencing such coverage and indicating Buyer will receive written notice of any non-renewal, cancellation or material change in coverage at least 30 days before the effective date thereof. Failure of Vendor to provide such certificate shall constitute a material breach of this Order.
8. Vendor shall defend (if required by Buyer and with counsel selected by Buyer), indemnify and hold harmless Buyer, its parent, subsidiary and affiliated companies, and the officers, directors, employees and agents of each, from all claims, demands, liabilities, actions, judgments, damages, losses, settlements, costs and expenses (including without limitation penalties, interest and attorney fees) arising directly or indirectly from or out of any actual or alleged: (a) defect in design, material or workmanship of the goods or services ordered hereunder; (b) infringement of a patent, trademark, copyright or other intellectual property right of a third party, or misappropriation of trade secrets or other confidential information of a third party, regarding any item, work or product of work; (c) price discrimination or price fixing regarding any of the prices specified herein; (d) negligent or willful act, error or omission of Vendor, its officers, directors, employees, agents, invitees or subcontractors; (e) failure by Vendor to perform any of its obligations hereunder; (f) breach of the warranties (express , implied and by statute) and representations made by Vendor herein; and (g) any occupational injury or illness sustained by an employee or agent of Vendor in furtherance of this Order. Vendor expressly and unconditionally waives its rights to raise as a defense to its obligations under this paragraph any intervening, contributing or comparative negligence (whether active or passive) by Buyer. The foregoing indemnity shall not be limited by the insurance requirements of paragraph 7. If Buyer brings an action against the Vendor to enforce any provision of this Agreement and prevails therein, Buyer may recover its reasonable attorneys’ fees in addition to any other remedy it may have at law or in equity.
9. This Order shall be governed by the laws of the state of Connecticut (the “Governing State”), without regard to the Governing States principles of conflicts of laws. Any dispute between the parties arising out of or relating to this Order that cannot be resolved by good faith negotiations shall be submitted for trial, without a jury, to a court in the Governing State having subject matter jurisdiction. The parties hereby consent to the exclusive jurisdiction of such court and agree to expressly waive all rights to a trial by jury. Vendor is an independent contractor and nothing herein shall be construed to create a partnership, employment, agency or joint venture relationship between Vendor and Buyer. This Order, and any rights and obligations hereunder, may not be subcontracted or assigned by Vendor, nor shall it be assignable by operation of law, without Buyers prior written permission, which may be withheld in the absolute discretion of Buyer. No waiver of any breach, right or remedy shall constitute a continuing waiver, nor shall it be construed as a waiver of any other breach, right or remedy. This Order may be supplemented or modified only by a written agreement between Vendor and Buyer. This Order shall be interpreted in accordance with its fair meaning and not against either of the parties.
10. All notices given hereunder shall, unless otherwise specifically provided, be given in writing, by personal delivery, mail, electronic mail, or facsimile transmission at the respective addresses of Vendor and Buyer set forth in this Order, unless either party at any time or times designates another address for itself by notifying the other party thereof by certified mail, in which case all notices to such party shall thereafter be given at its most recently so designated address. Notice given by mail shall be deemed given on the date of mailing thereof with postage prepaid. Notice given by electronic mail or facsimile transmission shall be deemed given upon receipt thereof by the recipient.
11. If Vendor, as a result of providing goods or services under this Order either: (a) receives customer credit card information; (b) processes credit card information for Buyer; (c) provides software, equipment or systems that Buyer will use to process credit card information; or (d) stores credit card information electronically or otherwise for Buyer, then Vendor represents, warrants and covenants that Vendor is in compliance, and will remain in compliance, with the current Payment Card Industry (“PCI”) Data Security Standard as specified at: http://www.usa.visa.com/business/accepting_visa/ops_risk_management /cisp.html. In addition, if Vendor is required to obtain a PCI audit as part of required PCI compliance, upon Buyer’s request. Vendor shall provide to Buyer a copy of its most current PCI audit.
12. The provisions of paragraphs 3, and 6 through 11 hereof shall survive the expiration or earlier termination of this Order.