SELLER AND BUYER AGREE AS FOLLOWS:
1. SELLER TO PACKAGE GOODS. Seller will package goods in accordance with result from weather and transportation, and the cost thereof to be borne by the Seller. Each shipping container will be clearly and permanently marked as follows:
- Seller’s name and address.
- Name and address of consignee, division or subsidiary.
- Consignee’s purchase order number.
If more than one shipping container is used, each container shall also be clearly and permanently marked as follows:
- Identification of totals number of containers as well as number of the individual container; e.g., Box 1 of 2 boxes.
- Identification of container bearing packing slip.
2. TIME OF DELIVERY. Time of delivery is the essence of the contract. Buyer shall have the right to specify the date or dates of delivery.
3. DELIVERY IN LOTS. Buyer shall have the right to demand all the goods at one time or in portions from time to time.
4. PLACE OF DELIVERY. The goods shall be delivered at the various addresses of the Buyer’s divisions and subsidiaries as specified by the Buyer for each lot.
5. SHIPMENT UNDER RESERVATION PROHIBITED. Seller is not authorized to ship the goods under reservation and no tender of a bill of lading will operate as a tender of the goods.
6. WARRANTY – PRICE. The price to be paid by the Buyer shall be that contained in the Seller’s quote. Seller warrants that the price charged Buyer is no higher than prices on contracts by others for products of the kind and specification covered by the agreement for similar quantities or under similar conditions. In the event Seller breaches this warranty, the price of the articles shall be reduced accordingly.
7. WARRANTY – PRODUCT. In addition to any implied warranties, Seller warrants that the goods furnished will conform to the specifications, drawings, and descriptions included in the contract. Sample or samples furnished by the Seller, if any, shall be free from any defects in material and workmanship.
8. INDEMNIFICATION. Seller agrees to indemnify Buyer and hold it harmless from and against all claims, liability, loss, damage, or expenses, including counsel fees, arising from or by reason of any actual or claimed trademark, patent or copyright infringement, or any litigation based thereon with respect to any part of the goods, material, or parts covered by this contract, and such obligation shall survive acceptance of the goods, materials, or parts and payments thereof by the Buyer.
9. DELIVERY. Delivery shall not be deemed to be complete until goods, materials, or parts have been actually received and accepted by the Buyer, notwithstanding any agreement to pay freight, express or other transportation charges, and the risk of loss or damage in transit shall be upon the Seller.
10. INSPECTION. All materials and work in progress, components and intermediate assemblies to be used in the articles will be subject to inspection by the Buyer on his premises or on Seller’s premises, if mutually agreed. Seller shall provide and maintain an inspection system acceptable to Buyer with respect to all materials. Materials, supplies, and equipment purchased hereunder are subject to final inspection and acceptable at Buyer’s plant, notwithstanding any other inspection unless otherwise specifically stated on the contract.
11. DEFAULT IN ONE INSTALLMENT TO CONSTITUTE TOTAL BREACH. Each installment or lot of the contract is dependent on every other installment or lot and a delivery of non-conforming goods or a default of any nature under one installment or lot will impair the value of the whole contract and constitute a total breach of the contract as a whole.
12. TAXES. Except as may be otherwise provided in this contract, the contract price includes all applicable Federal, state, and local taxes in effect at the time of this contract.
13. INVOICES. Seller shall subject separate invoices for each delivery to the division or subsidiary making purchase. Invoices shall indicate the purchase order number or delivery numbers, or contract number, as applicable. Invoices shall be itemized, and taxes and transportation charges, if any, shall be listed separately. Bill of Lading must accompany invoice.
14. RIGHT TO ASSURANCE. Whenever one party in this contract, in good faith, has reason to question the other party’s intent to perform, he may demand that the other party give a written assurance of his intent to perform. In the event that a demand is made and no assurance is given within five (5) days, the demanding party may treat the failure as an anticipatory repudiation of the contract,
15. NOTICE OF LABOR DISPUTES. Whenever an actual or potential labor dispute is delaying or threatens to delay the timely performance of this contract, Seller shall immediately give notice thereof, including all revelant information with respect thereto.
16. FORCE MAJEURE. Neither party shall be held responsible for any loss resulting in the fulfillment of any terms or provisions of this contract when delayed or prevented by revolutions or any other disorder, wars, acts of enemies, strikes, fires, floods, acts of God, or other causes beyond control of either party, however, to Buyer’s right of termination in whole or in part. Upon notice to Seller, Buyer may require such deliveries to be made upon cessation of such event.
17. ASSIGNMENT – DELEGATION. No right of interest in this contract shall be assigned by Seller without the written permission of the Buyer, and no delegation of its obligation is allowed, or if the performance of any obligation, by Seller shall be made without the written permission of the Buyer. Any attempted assignment or delegation by Seller shall be wholly void and totally ineffective for all purposes unless made in conformity with this paragraph.
18. BUYER FURNISHED PROPERTY. All material, including tooling, dies, fixtures, and equipment furnished or specifically paid for by the Buyer shall be the property of the Buyer, shall be subject to removal at any time without additional cost upon demand by the Buyer, shall be used only in filling contracts for the Buyer, shall be kept separate from other tooling, dies, fixtures, equipment, and materials and shall be clearly identified as the property of the Buyer. Seller assumes liability for loss or damage, with the exception of normal wear and tear, and agrees to supply detailed statement of inventory at monthly intervals or as otherwise agreed upon.
19. INDEMNITY AND INSURANCE. Seller shall indemnify and hold Buyer and its employees harmless from any property damage, personal injuries, or death arising out of Seller’s or its sub-contractor’s work or performance hereunder and shall procure and maintain insurance against risks as Buyer shall reasonably request.
20. ADVERTISING. Seller shall not advertise nor publish without Buyer’s consent the fact that Buyer has placed this contract, except as may be necessary to comply with a proper request for information from an authorized Governmental representative.
21. COMPLIANCE WITH LAW. It is understood that by acceptance of this contract, Seller represents that with respects to the production of the price to be charged for the materials, equipment, supplies, and/or services covered by this contract, he has complied fully with the local state and Federal laws including the Robinson-Patman Act, the Fair Labor Standards Act, and the regulations and orders of the United States Department of Labor.
22. APPLICABLE LAW. This agreement shall be governed by the Uniform Commercial Code. Whenever the term “Uniform Commercial Code” is used, it shall be construed as the meaning of the Uniform Commercial Code as adopted in the State where they Buyer’s division or subsidiary issuing the delivery orders or contracts is located.
23. MODIFICATION. The contract may not be modified or terminated orally and no modification or termination or claim waiver of any of the provisions hereof shall be binding unless in writing and signed by the party against whom such modification, termination, or waiver is sought to be enforced.
24. INTERPRETATION – PAROLE EVIDENCE. This writing is intended by the parties as a final expression of their agreement and is intended also as a complete and exclusive statement of the terms of their agreement. No course of prior dealings between the parties and no usage of the trade shall be revelant to supplement or explained the terms used in this agreement. Acceptable or acquiescence in a course of performance rendered under this agreement shall be revelant to determine the meaning of this agreement even though the accepting or acquiescing party has knowledge of the nature of the performance and opportunity for rejection. Whenever a term defined by the Uniform Commercial Code is used in this Agreement, the definition in the Code is to control.
25. REMEDIES. Buyer and Seller shall have all remedies afforded each by the Uniform Commercial Code, except as limited or otherwise provided herein, of the State where the Buyer’s division or subsidiary issuing the delivery order or contract is located. Any terms in proposals by the Seller that in anyway vary from the terms set forth are hereby rejected.
26. PROPRIETARY INFORMATION. All prints, drawings, specifications, and technical information furnished to you herewith are proprietary and are wholly owned by Buyer and are furnished to you solely for the purpose of enabling you to perform the work covered by the contract. It is understood that with the acceptance of the same you will not use this information and data to reproduce this particular product for any person, firm, or corporation nor adopt the same for your own without the written consent of Buyer.
27. GENERAL. No conditions stated by Seller in accepting or acknowledging this contract shall be binding on Buyer if in conflict or inconsistent with, or in addition to the terms and conditions hereof, unless expressly accepted in writing by Buyer.