1. ENTIRE AGREEMENT.
This purchase order and any documents referred to herein, supersede all prior understandings, transactions and communications, whether oral or written, with respect to the matters referred to herein and form the complete contract between the Buyer and Seller. No subsequent modification, alteration or amendment of this order shall be binding upon Buyer unless made in writing and signed by Buyer’s
This Purchase Order becomes a contract (1) when formal written acknowledgment is received by Buyer from Seller if this order includes the price and delivery schedule for all items included in this order; or (2) if Buyer fails for a period of ten days after receipt of the acknowledgment copy of this Purchase Order to object to the price or the delivery schedule stated by Seller in the acknowledgment if this Purchase Order contains either: (a) a change made by Seller in price and/or delivery schedule for any time; or (b) no price and/or no delivery schedule for any item is originally endorsed thereon. Except as provided in the preceding sentence, it is a condition of this Purchase Order that any provisions printed or otherwise contained in any acknowledgment hereof, which provisions are inconsistent with or in addition to the terms and conditions herein contained, and any alteration in this Purchase Order, shall have no force or effect, and that the Seller by such acknowledgment thereby agrees that any such provisions in any such alteration to this Purchase Order which adds terms or contains terms which conflict with the terms of this Purchase Order shall not constitute any part of this contract of purchase and sale. Shipment or the beginning of manufacture against this order shall constitute an acceptance of this order as written; but no payments will be made until receipt by the Buyer of the signed acknowledgment copy of this Purchase Order.
3. BUYER’S COMMITMENT.
Buyer is not committed to purchase any goods or services except in such quantity and at such price as may be set forth on the face hereof or on a separate release issued hereunder. Such releases shall reference this Purchase Order by number and, when issued, such releases, including all conditions on both sides thereof, shall become part hereof.
4. PACKING SLIPS, INVOICES.
Packing Slip bearing a complete record of the shipment including the number of the order to which it applies, is required with each shipment. Invoices, bills of lading or express receipts, and packing lists in triplicate must be mailed within twenty-four hours following shipment. Each invoice must show shipping route, quantity, prices, number of packages and serial numbers thereof and number of Buyer’s purchase order to which shipment applies Payments and discounts will be figured from date of receipt at Buyer’s office of three copies of invoices, bills of lading or express receipts, and packing lists.
5. SELLER INFORMATION
Seller warrants that all materials, goods and work furnished by it on this order shall be free from defects in material and workmanship, shall be fit and sufficient (if not of the Buyer’s design) for the purpose intended, shall be of good and merchantable quality and shall conform to blueprints, specifications, samples and other descriptions furnished with this order or as subsequently changed by Buyer, and to quantities specified. This warranty shall run to the Buyer, its customers and the user of the final product and shall survive inspection and acceptance by Buyer. Seller agrees to indemnify and save Buyer, its customers and the user of the final product harmless with respect to all losses, costs, expenses (including attorney fees) and damages, including consequential damages and special damages, incurred or as a consequence of any breach of this warranty.
6. INSPECTION AND APPROVAL, RETURN OF GOODS.
All materials, goods and work shall be subject to Buyer’s inspection and approval, despite prior payment therefor. Materials other than those specified shall not be substituted without Buyer’s written authority. Upon discovery by Buyer that the materials furnished contain any defect, patent or latent, or that the materials fail to conform to the foregoing warranty, Buyer shall have the right: (1) to reject delivery of the materials, or, if they have been accepted, to return them to Seller, recover all freight, storage, handling or other expense incurred by Buyer and be relieved of any payment for the purchase price thereof; or, if payment has been made, to recover the purchase price so paid plus all freight, storage, handling or other expense incurred by Buyer; (2) to recover all expenses incurred in reworking the material in an attempt to make it usable; and (3) to cancel the balance of the order. Materials so returned shall not be replaced without Buyer’s written replacement order. Buyer’s rights as set forth in this paragraph shall not be construed to limit or affect any other rights which Buyer may have at law or under the terms of Seller’s warranty herein.
7. TERMINATION FOR CONVENIENCE.
Buyer may terminate this Purchase Order, or any part hereof, for its sole convenience by giving written notice of termination to Seller. Upon Seller’s receipt of such notice, Seller shall, unless otherwise specified in such notice, immediately stop all work hereunder and give prompt written notice to and cause all of its suppliers or subcontractors to cease all related work. Seller shall be paid the price specified herein for goods completed, shipped and acceptable to Buyer, or for services provided and acceptable to Buyer, prior to Seller’s receipt of such notice. Seller shall not be paid for any work performed after receipt of such notice, whether performed by Seller or any of its suppliers or subcontractors or for work which seller could have reasonably avoided.
8. TERMINATION FOR CAUSE.
Buyer may terminate this Purchase Order, or any part hereof, for cause, including Seller’s failure to comply with any term of this Purchase Order, or if it should be alleged that goods or services to be provided hereunder infringe any patent, trademark, or copyright, or if Seller fails, upon request, to provide Buyer with reasonable assurances of future performance by giving written notice to Seller. If this Purchase Order is terminated under this paragraph, Buyer shall not be liable to Seller for any amount, and Seller shall be liable to Buyer for any and all damages sustained by virtue of such termination.
9. LIMITATION ON BUYER’S LIABILITY/STATUTE OF LIMITATIONS.
Any legal action against Buyer, based on Buyer’s alleged breach of its obligations hereunder must be commenced within one year after the date of alleged breach. IN NO EVENT SHALL BUYER BE LIABLE FOR ANTICIPATED PROFITS OR FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RELATED TO SUCH BREACH. BUYER’S LIABILITY FOR ANY SUCH BREACH SHALL IN NO CASE EXCEED THE PRICE ALLOCABLE TO THE GOODS OR SERVICES OR UNIT THEREOF WHICH GIVES RISE TO THE CLAIM. BUYER SHALL NOT BE LIABLE FOR PENALTIES OR INTEREST CHARGES OF ANY DESCRIPTION.
If goods are to be shipped at a price higher than specified do not ship and advise us. If price is omitted, it’s agreed that the material shall be billed at the price last quoted or paid, or the prevailing market price whichever is lower.11. EXCESS QUANTITY.
Buyer accepts no responsibility for goods or materials shipped in excess of the quantities specified here in, and any such excess may, at Buyer’s option, be returned to Seller at Seller’s expense.
12. DELIVERY AND CANCELLATION.
Delivery must be made in accordance with the date or dates specified in this order. If materials are not delivered within one week of the specified time, Buyer shall have the option of purchasing elsewhere and charging Seller with any loss resulting therefrom and/or of cancelling the order or any part thereof. If materials are shipped so as to arrive more than two weeks in advance of the specified delivery date Buyer, may at its option, either return such materials to Seller at Seller’s risk and expense or charge Seller a reasonable storage charge. Buyer may from time to time change delivery dates or direct temporary suspension of shipments. Seller shall not be liable for delay in delivery, and the Buyer shall not be liable for delay in acceptance, due to causes beyond the control, and without the fault or negligence of that party, its agents, employees and subcontractors, provided that party exercises due diligence in promptly notifying the other party hereto of the delay and the causes therefor and takes all reasonable action to remedy the same.
13. TRANSPORTATION AND PACKING.
All materials shall be suitably packed or otherwise prepared for shipment to protect the same fully during transportation and to secure the lowest transportation costs. All materials shall be forwarded in accordance with Buyer’s instructions, or in the absence of such instructions by the route and method of transportation taking the lowest transportation rate Excess transportation costs otherwise incurred will be charged to Seller’s account. When usual terms of tariffs do not include insurance, shipments must be forwarded properly insured to their full sales price hereunder. No charge shall be made for packing, insurance, boxing, storage or drayage unless authorized by Buyer in writing.
14. PATENTS AND TRADE MARKS.
Seller agrees, upon receipt of notification, promptly to assume full responsibility for the defense of any suit or proceedings which may be brought against Buyer of any of its subsidiaries, affiliated companies, agents or vendees by reason of the use or sale of any materials furnished on this order which are not of the Buyer’s design, for alleged patent infringement or for alleged unfair competition resulting from similarity of design, trademark or appearance of goods; and Seller further agrees to indemnify Buyer, its subsidiaries, affiliated companies, agents and vendees against any and all expense, loss, royalties, profits and damages, including court costs and attorney’s fees, resulting from the bringing of such suit or proceedings and/or from any settlement, decree or judgment therein. Buyer reserves the right to control any such suit or proceeding and may be represented by its own counsel in any such suit or proceedings, if it so desires.
15. DIES, DRAWINGS, ETC.
All dies, special fixtures, jigs, patterns, plates, molds, or other tools and all specifications, drawings, samples and other descriptions furnished or paid for, either directly or indirectly, by Buyer, unless expressly stated on purchase order to the contrary, are to be confidential are to be Buyer’s property, are to be used only in the performance of orders from Buyer, are to be delivered together with all copies thereof, to Buyer on demand; are to be maintained in first class operative condition and repaired or replaced as may be necessary by Seller in whose possession they are at its expense and are to be disposed of only on written instructions from Buyer. The Seller also agrees at its own expense to insure to their full insurance value against theft, loss or damage by fire or other event all of the above in Seller’s custody and belonging to buyer or in which Buyer has an equity. Seller shall, on request, deliver to Buyer a certificate of insurance. Failure to do so shall not be deemed a waiver of Seller’s liability to Buyer for the full value of such items in the event of loss or damage for any reason whatsoever.
16. WORK DONE ON PREMISES OTHER THAN THOSE OF SELLER.
If in the performance of this Purchase Order the Seller or any of its agents, employees or subcontractors is required to enter upon any premises other than premises owned or occupied by any such person, then the Seller agrees: (a) to comply with all laws, rules, regulations, orders and ordinances applicable to all work done hereunder; (b) to protect such premises from all mechanic’s and materialmen’s liens; (c) to take all reasonable precautions prescribed by any person in charge of any part of such premises with respect to the protection of such premises and all property and persons thereon or in the vicinity thereof; (d) to prevent any fire hazard and comply with all safety rules; (e) to maintain proper workmen’s compensation insurance covering all employees engaged in the performance of work hereunder and public liability and property damage insurance in amounts and forms satisfactory to the Buyer to cover any liability incurred in connection therewith; (f) to require each of its agents, employees and subcontractors entering upon such premises to agree to and to comply with all of the foregoing; and (g) to indemnify and save the Buyer, its officers, employees, agents and customers and any other person having rights in said premises or being on or about said premises from all fines, penalties, costs, losses, expenses, damages, claims, suits or liabilities including consequential damages, resulting from injury, including death, to persons or property arising from or in any manner growing out of the performance of the work provided for in this purchase order whether or not such fines, penalties, costs, losses, expenses, damages, claims, suits or liabilities are based in whole or in part upon the Buyer’s alleged negligence or participation in the wrong.
17. INSOLVENCY OF SELLER.
If Seller ceases to conduct its operation in the normal course of business (including inability to meet its obligations as they mature) or if any proceeding under the bankruptcy or insolvency laws is brought by or against Seller or a receiver for Seller is appointed or applied for or an assignment for the benefit of creditors is made by Seller, this Purchase Order shall automatically terminate without liability to Buyer, except for deliveries previously made or for goods covered by the order then completed and subsequently delivered in accordance with the terms of the Purchase Order.
18. RENEGOTIATION AND PROCUREMENT REGULATIONS.
It is understood and agreed that if any of the commodities or services ordered herein are wholly or partially to be used for any government contract or subcontract, this order will be subject to renegotiation pursuant to the applicable laws, rules and regulations, whether heretofore or hereafter enacted or adopted and all applicable provisions of the applicable United States Procurement Regulations or other governmental or municipal regulation in effect at the date hereof, and all applicable requirements thereof are hereby incorporated herein by reference.
19. COMPLIANCE WITH LAWS.
Seller warrants that all work contemplated hereunder shall be performed in strict conformity with Federal, State and local laws and ordinances, and all lawful regulations of any public authority including, but not limited to the Walsh-Healey Act (U.S.C.A. Title 41, Sections 35-45), the Occupational Safety and Health Act of 1970 (U.S.C.A. Title 29 Sections 651-678), and the Fair Labor Standards Act of 1938 (U.S.C.A. Title 29 Sections 201-209), as amended. Seller agrees, upon request, to furnish Buyer a certificate of compliance with any or all such laws in such form as Buyer may require. By acceptance of this order, Seller represents that to the best of its knowledge and belief, the prices charge hereunder are not in excess of the prices permitted by any or all applicable governmental price regulations, and are not in excess of the Seller’s current selling prices of the same or substantially similar items, taking into account the quantities so sold, and to agrees that in the event it is subsequently determined that the prices charged herein are in excess of such prices, such excess will be refunded to Buyer. Where Seller performs service on Buyer’s premises, Seller agrees to furnish to Buyer satisfactory evidence of compliance with all laws and regulations, including specifically all taxes on payroll or contributions on account of social security, unemployment insurance and Federal or State workmen’s compensation. Seller further agrees to indemnify and save harmless Buyer and its affiliates, or either of them, against any claim, suit or demand, and all costs, damages or expenses incident thereto arising out of its failure to pay or secure such compensation, taxes or contributions are arising out of the performance of the work or in connection therewith or pertaining thereto.
This Purchase Order shall not be assigned in whole or in part without Buyer’s written consent and shall be binding upon and accrue to the benefit of the successors and permitted assigns of the parties hereto.
21. CONSTRUCTION OF PURCHASE ORDER.
The rights and duties of the parties hereto shall be determined by the laws of, and this Agreement shall be construed and considered as a contract made and to be performed in the State of Ohio.
22. EQUAL OPPORTUNITY.
The Equal Employment Opportunity Clause in Section 202 of the Executive Order 11246, as amended, is incorporated by reference and made a part hereof. If this order is for $50,000 or more, Seller agrees, upon request, to furnish Buyer a certificate of compliance with such executive order in such form as Buyer may require.
23. AFFIRMATIVE ACTION.
The Affirmative Action clauses and regulations of Section 503 of the Rehabilitation Act of 1973 and Section 402 of the Vietnam Era Readjustment Act of 1974 are incorporated by reference and made a part hereof.
Seller, at Seller’s expense, agrees to provide and carry any adequate insurance to fully protect both Seller and Pioneer from any and all claims of any nature brought against Pioneer and/or Seller by any party or parties arising out of or relating in any way to the goods or services which are the subject of this Agreement. Seller shall add Pioneer to any such policies as a named insured and provide Pioneer with proof of such status through the applicable declaration page. Such insurance shall be kept in full force and effect and shall not be canceled. Such policies shall provide that the coverage cannot be terminated or materially changed without the insurer giving Pioneer thirty (30) days’ prior written notice.