|
1. ACCEPTANCE; PURCHASE ORDER CONSTITUTES ENTIRE AGREEMENT --
This Order constitutes Buyer's offer and may be accepted by Seller (or
Contractor where applicable) only in accordance with the terms hereof. Any
acceptance herein of an offer of Seller, or any confirmation herein of a
prior agreement between Buyer and Seller, is expressly made conditional on
Seller's assent to the additional or different terms contained herein. This
Order may be accepted by Seller by commencement of work, shipment of goods,
or furnishing of services hereunder. Dispatch of Seller's acknowledgement
form or other written document will also act as an acceptance if it agrees
with this Order with respect to the description, amount, price and time of
delivery of the goods or services ordered. Notwithstanding any waiver in any
instance, or any oral agreement, or any instructions, terms and conditions
that may be contained in any quotation, acknowledgement, invoice or other
written document of Seller, no addition to, waiver for the future or
modification of, any of the provisions herein contained shall be of any force
or effect unless made in writing and executed by Buyer.
2. CHANGES -- Buyer shall have the right at any time to make changes in this
Order by written notice to Seller, and Seller agrees to comply with such
changes. If such changes cause a material increase or decrease in Seller's
costs or time of performance of this Order, Seller shall notify Buyer
immediately and negotiate an adjustment.
3. PRICE -- If this Order is not priced it shall not be filled at prices
higher than those last quoted and charged Buyer for the same articles.
Charges for boxing, packaging or cartage will not be allowed or paid by Buyer
unless otherwise expressly stated on this Order. Goods are purchased on a
delivered basis. An element of freight is included in the purchase price of
the materials. All freight charges are to be paid by the supplier to the
carrier without further liability to International Paper, its divisions,
subsidiaries or affiliates, or its customer and/or consignee.
4. SHIPPING -- Buyer reserves the right to route all shipments. Delays in
shipment shall be reported immediately by Seller to Buyer. Every package or
other shipping unit, bill of lading, shipping memorandum and invoice must be
marked with Buyer's Purchase Order Number. Seller's serial numbers must be
shown on all shipping papers and invoices.
5. TIME OF THE ESSENCE -- Time of shipment and of other aspects of
performance hereunder is of the essence of this agreement.
6. DELIVERY/TITLE -- Unless otherwise agreed, delivery shall be f.o.b. point
of destination and title shall pass to Buyer upon acceptance at the final
delivery point. Risk of damages or loss following shipment and prior to
acceptance by Buyer shall be the responsibility of Seller.
7. RIGHT OF INSPECTION AND REJECTION -- Material and equipment supplied by
Seller shall be received subject to Buyer's inspection and approval within a reasonable
time after delivery, notwithstanding prior payment. If specifications or
warranties are not met, material and equipment may be returned at Seller's
expense. No material or equipment returned to Seller as defective shall be
replaced except upon Buyer's formal authorization. No inspection (including
source inspections), tests, approval (including design approval), or
acceptance of items ordered shall relieve the Seller from responsibility for
defects or other failures to meet the requirements of this order.
8. ASSIGNMENT -- Neither this Order nor any interest therein nor any claim arising hereunder shall be transferred or
assigned by Seller without the prior written consent of Buyer. Buyer may
transfer or assign the benefits of this agreement, in whole or in part,
including without limitation the Seller’s warranty, without the approval of
Seller.
9. GOVERNING LAW -- This Order, and the rights and obligations of the parties
thereto, shall be determined in accordance with the laws of the State wherein
the equipment or material shall be installed, or wherein the work shall be
performed herein.
10. WARRANTY -- Seller warrants that all goods or services furnished pursuant
to this Order will be free from defects in material or workmanship and will
be in conformity with the requirements of this Order, including drawings and
specifications, if any, and reasonably fit for the purpose disclosed in this
Order or in such drawings and specifications, and Seller further warrants
that such goods or services will be merchantable and fit for the purpose for
which they are sold, and where design is Seller's responsibility, will be
free from defects in design. Buyer's approval of Seller's design or material
shall not be construed to relieve Seller of the warranties set forth herein.
Without limitation of any rights which Buyer may have at law by reason of any
breach of warranty, goods which are not as warranted may at any time within
twelve (12) months after delivery be returned at Seller's expense. Buyer at
its option may require Seller either to replace such goods at no increase in
price (Seller must pay all repacking, transportation and handling charges
both ways) or to refund the purchase price and any charges in connection
therewith.
|
11. INVOICES -- All invoices shall be mailed to Buyer at its
office as indicated on the face of this Order and will state Buyer's Purchase
Order Number clearly on the Invoice. Invoice and duplicates shall be rendered
for each order or for each shipment if more than one is made on an order. No
invoice shall be delivered by Seller to any employee of Buyer. An itemized
delivery ticket, bearing Buyer's Purchase Order Number as shown hereon, must
be left with the goods to insure their receipt. If delivery is made by
carrier, an itemized delivery ticket must be attached to the package or other
shipping unit. The payment discount period will date from receipt of the
invoice and not from the date of the invoice. In case of errors on an
invoice, the payment discount period will date from the receipt of corrected
invoices. Seller shall use the lowest published freight rates and any excess
transportation charges incurred, including any that deviate from the
published tariff rates, are to be borne by the Seller.
12. PATENT INDEMNITY -- Seller agrees to indemnify, save
harmless and defend Buyer from and against any and all suits, claims,
damages, costs, and attorney's fees arising out of or in connection with any
infringement or claimed infringement of any United States patent, trademark
or copyright in the manufacture, use or sale of the equipment or materials
furnished under this Order. In case said equipment or material is in such
suit, or in final adjudication elsewhere, held to constitute infringement,
and the use thereof is enjoined, Seller shall, at its own expense, either
procure for Buyer the right to continue using said equipment or material, or
at the option of Buyer either replace same with equally efficient noninfringing equipment or material, or modify it without
impairing its efficiency so it becomes noninfringing,
or remove said equipment or material and refund the purchase price and the
transportation and installation costs thereof.
13. INDEMNITY AND INSURANCE -- Seller shall defend, indemnify and hold
harmless Buyer from any claims, suits, judgments, fees and costs (including
attorney's fees) based on or arising out of the Seller’s products, services
and/or the resale or use of the products purchased hereunder including death,
personal injury, or damage to property. Seller agrees to procure and maintain
the following insurance coverage: (a) Commercial General Liability insurance,
endorsed to name Buyer, a division of International Paper Company, as an
additional insured, with limits not less than $1,000,000 per occurrence,
$1,000,000 Products/Completed Operations, $1,000,000 Personal/Advertising,
(b) Commercial Auto insuring all vehicles used by Seller (including all
owned, hired and non-owned vehicles), and (c) Worker’s Compensation with
statutory limits and a waiver of subrogation in favor of Buyer, and
Employer’s Liability with limits not less than $500,000 each accident and
$5,000,000 Disease – Each Employee. Evidence of such coverage, in the form of
a Certificate of Insurance and providing for thirty (30) days
notice to International Paper prior to cancellation, shall be sent to
Buyer not later than seven (7) days following Seller's acceptance of this
Order.
14. COMPLIANCE WITH LAWS -- Seller, in the performance of this Order , unless exempt , shall comply with provisions
of Executive Orders No. 11246 as amended and No. 13201 (Beck) as amended, 29
C.F.R 470, 41 C.F.R 60-1, 60-250, 60-741.44 , 60-250.44, 60.300.44, which are
all incorporated by reference herein, and all other applicable Federal,
state, and local laws, regulations, rules and ordinances, including but not
limited to those dealing with the environment . All goods and services must
bear the following legend: "We hereby certify that the goods and
services covered by this invoice were produced in compliance with applicable
requirements of Sections 6, 7, and 12 of the Fair Labor Standards Act, as
amended, and of regulations and orders of the United States Department of
Labor issued under Section 14 thereof."
15. CHEMICAL SUBSTANCE IDENTIFICATION -- By acceptance of this Order, Seller
certifies that any chemical substance(s) furnished pursuant to this Order has
been properly labeled, and that proper information on the substance(s), e.g.,
material safety data sheets, have been provided to
Buyer, pursuant to all federal, state or local laws and regulations.
16. TERMINATION -- Buyer, by written notice, may terminate this order,
in whole or in part. In the event this order is terminated as a result of
Seller's default, the Seller shall be liable for all damages allowed in law
or equity, including the excess cost of reprocuring
similar items. If this order is terminated for the convenience of Buyer,
Seller will be compensated to the extent that items have been accepted by
Buyer prior to the effective date of termination. Other than to this extent,
Buyer shall not be liable to Seller for any damages on account of its failure
to accept all of the items ordered.
17. CONFIDENTIALITY/TRADE SECRETS -- All specifications, data and other
information furnished by Buyer, or its agents, to Seller in connection with
this order remain the exclusive intellectual property of Buyer and shall be
treated by the Seller as proprietary and shall not be disclosed or used,
outside the limitation of this order, without prior written approval of the
Director - Purchases of Buyer. In addition, the purchase of the Seller's
product does not authorize the Seller to use the name of or make reference to
Buyer for any purpose in any releases for public or private dissemination,
nor shall the Seller divulge or use in any advertisement or publication any
specifications, data, or other information pertaining to or relating to this
usage without prior written approval of the Director
|