THE PURCHASE OF PRODUCTS OR SERVICES HEREUNDER IS EXPRESSLY CONDITIONED UPON AND SUBJECT TO SELLER’S ASSENT TO ALL TERMS AND CONDITIONS SET FORTH HEREIN AND IN BUYER’S STANDARD TERMS AND CONDITIONS OF PURCHASE ATTACHED HERETO. SELLER’S ACCEPTANCE, AS DESCRIBED IN BUYER’S STANDARD TERMS AND CONDITIONS OF PURCHASE, SHALL CONSTITUTE SUCH ASSENT. ANY ADDITIONAL OR DIFFERENT TERMS IN SELLER’S DOCUMENTATION ARE HEREBY DEEMED TO BE MATERIAL ALTERATIONS AND NOTICE OF OBJECTION TO AND REJECTION OF SUCH TERMS IS HEREBY GIVEN.
STANDARD TERMS AND CONDITIONS OF PURCHASE
1. ACCEPTANCE. Buyer (“Buyer”) hereby offers to purchase from the vendor named on the face hereof (“Seller”) the products and services described on the face hereof (respectively, “Products” and “Services”) subject to these terms and conditions. Acceptance of this offer must be made on its exact terms of this Purchase Order to the exclusion of all other terms. These Standard Terms and Conditions of Purchase, together with information contained on the face hereof, and any additions or revisions mutually agreed to in writing by Seller and Buyer (the “Purchase Order”) shall constitute the entire agreement and understanding of Seller and Buyer with respect to the purchase of Seller’s Products or Services, superseding all prior oral or written understandings relating thereto. Nowithstanding the foregoing, if there is already an agreement between Buyer and Seller (e.g. supply agreement) that governs the subject matter of the Purchase Order, then in such an event, the terms of the exisiting (e.g. supply agreement) contract shall apply to the Products and Services and take precedence over these terms herein. There will be no force or effect to any terms and conditions stated by Seller that are in conflict with, inconsistent with, or in addition to those contained in the Purchase Order. Seller’s failure to object within 10 days to any terms contained in the Purchase Order shall constitute Seller’s acceptance of all terms and conditions in the Purchase Order. If Seller’s acceptance is by commencement of performance, Buyer reserves the right to treat its offer as having lapsed before acceptance unless Buyer is notified of such acceptance within a reasonable time.
2. PRICES. Unless otherwise expressly approved in writing by Buyer, prices for all Products and Services are as noted on this Purchase Order, and may not be changed without the prior written consent of Buyer. Unless otherwise stated on the face hereof or elsewhere herein, all such prices are DAP (Incoterms 2010) Buyer’s facility to which Products are to be shipped and are complete. No additional charges of any type shall be added without Buyer’s express written consent. If this Purchase Order is for Services on a time and material basis and no price is prescribed for such Services, the price will be deemed to be the reasonable rate for the Services. .
3. TAXES. Any properly assessed taxes, duties, or other fee imposed by a governmental authority, on or measured by the transaction between Buyer and Seller shall be separately stated in each invoice indicating the tax and once paid by Buyer, no additional tax assessments with respect to such invoiced amounts shall be paid.
4. TERMS OF PAYMENT. Unless otherwise stated on the face hereof, Buyer shall pay all amounts due for Products or Services purchased hereunder within forty-five (45) days after (a) Buyer’s receipt of Seller’s correct invoice or (b) if later, Buyer’s acceptance of the Products or Services. No interest charges or other penalties for late payment may be assessed by Seller without the prior written consent of Buyer. Buyer may withhold or set off from any amounts otherwise due to Seller, any amounts owed by Seller to Buyer.
5. SHIPPING AND DELIVERY. Seller shall be responsible for packing, shipping, and safe delivery of all Products and shall bear all risk of damage or loss until the Products are delivered to, and accepted by, Buyer. Time is of the essence; delivery must be made in accordance with the schedule set forth in this Purchase Order. Unless otherwise stated on the face hereof, Buyer reserves the right to refuse delivery in installments, and, if accepted, to defer payment without interest or penalty until shipment is completed.
(a) Products and Services are subject to Buyer’s inspection, testing and acceptance at destination. Payment therefor by Buyer shall not constitute acceptance. Unless otherwise stated herein, title to the Products shall remain with Seller until acceptance by Buyer hereunder.
(b) Buyer shall have a commercially reasonable time after delivery of the Products or provision of the Services to inspect and conduct commercially reasonable acceptance tests in respect of the Products and Services. Acceptance of any installment shall not be deemed acceptance of Buyer’s entire order or of any subsequent installment.
(c) If any Products or Services fail to conform to the terms hereof or do not comply with Seller’s warranties hereunder or are otherwise non-conforming, Buyer may reject such Products or Services without affecting Seller’s obligations under this Purchase Order. FAILURE OF BUYER TO REJECT ANY PRODUCTS OR SERVICES SHALL NOT CONSTITUTE A WAIVER OF ITS LEGAL RIGHTS (INCLUDING RIGHT TO REVOKE ACCEPTANCE) IF BUYER SUBSEQUENTLY DISCOVERS SUCH PRODUCTS OR SERVICES ARE NONCONFORMING. ANY PREVIOUS ACCEPTANCE BY BUYER OF SIMILAR PRODUCTS OR SERVICES SHALL NOT CONSTITUTE A WAIVER OR DEFENSE HEREUNDER.
(d) Seller may not charge any restocking, handling, or other fees and charges in connection with rejected Products. Upon rejection of any Services hereunder, Buyer may require Seller to promptly reperform such Services at no additional charge to Buyer until such time as Buyer accepts such Services or cancels such order (which it may do in its sole and absolute discretion).
7. SERVICES. If the Purchase Order covers the performance of Services for Buyer or involves operations by Seller on the premises of Buyer or one of its customers, Seller shall take all necessary precautions to prevent the occurrence of any injury to person or property during the progress of such work and except to the extent that such injury is due solely and directly to Buyer’s or its customer’s negligence, as the case may be, shall indemnify and protect Buyer (and its employees, subsidiaries, affiliates, successors, customers and agents) against all liability, claims or demands for injuries or damages to any person or property growing out of the performance of the Purchase Order including the cost of defending against any such claim.
(a) All tools, equipment, dies, specifications, drawings, designs, samples, or other property furnished or paid for by Buyer in connection with a Purchase Order (“Buyer Property”) will (i) be and remain the tangible and intellectual property of Buyer, marked as such and kept segregated from other property, (ii) be used only by Seller and only in performance of the Purchase Order, (iii) not be moved from Seller’s premises without Buyer’s written consent, (iv) not be affixed to real property, (v) be kept free of all liens, claims, encumbrances and restrictions, and (vi) not be modified or altered by Seller or any other person. Seller will maintain a complete inventory thereof and bear all risk of loss or damage to Buyer Property until it is returned to Buyer. Upon Buyer’s request, Seller will deliver at its expense all Buyer Property in good condition, ordinary wear and tear excepted, to Buyer at any location designated by Buyer. Seller waives any legal or equitable rights or claims in connection with Buyer Property.
(b) Seller shall and hereby does assign to Buyer all rights, title and interest in any and all intellectual property rights with respect to any inventions (whether or not patentable), works of authorship, mask works, designations, designs, know-how, drawings, information, ideas or expressions of ideas that Seller conceives, reduces to practice or otherwise creates in performing any Services or providing any Products pursuant to a Purchase Order.
(c) If any part of the Services or Products or information provided by Seller hereunder is based on, incorporates, or is an improvement or derivative of, or cannot be reasonably and fully made, used, reproduced, distributed and otherwise exploited without using or violating technology or intellectual property rights owned by or licensed to Seller and not assigned hereunder, Seller hereby grants Buyer and its successors a perpetual, irrevocable, worldwide royalty-free, non-exclusive, sublicensable right and license to exploit and exercise all such technology and intellectual property rights in support of Buyer’s exercise or exploitation of the Services, Products, other work or information performed or provided hereunder by Seller, or any assigned rights (including any modifications, improvements and derivatives of any of them).
9. WARRANTIES. Seller warrants all Products and Services furnished under this Purchase Order: (a) to be free from defects in design, materials and workmanship; (b) to be of merchantable quality; (c) to conform strictly, to any Specifications included or referenced herein; and (d) to be fit and sufficient for their intended purposes. Seller further warrants that: (i) it has and is conveying to Buyer, clear and marketable title to all Products, or deliverables resulting from Services, provided hereunder, free from all liens and encumbrances; and (ii) all Products and Services provided hereunder comply with all applicable laws, rules and regulations and do not violate or infringe upon any third party intellectual property or other rights or interest of any nature whatsoever. In the case of the performance of Services, Seller further warrants that it shall perform the Services in a professional manner in accordance with applicable industry standards except to the extent a higher standard is specified in which case the higher standard shall apply. Such warranties shall survive termination of the Purchase Order and shall inure to the benefit of Buyer, its successors, assigns and customers. Nothing herein shall limit any other warranties, express or implied, available to Buyer under applicable law. For purposes hereof, “Specifications” means any and all specifications, drawings, samples, models, diagrams, bulletins, engineering sheets or other materials relating to the Products or Services provided by Seller to Buyer. Products and Services corrected or replaced by Seller shall be subject to all of the provisions of this Purchase Order in the manner and to the same extent as Products and Services originally furnished hereunder.
Buyer’s warranty rights hereunder are in addition to, but shall not be limited by, any standard warranties offered by Seller.
10. LIMITATION OF LIABILITY. IN NO EVENT WHATSOEVER SHALL BUYER HAVE ANY LIABILITY TO SELLER ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS OR SERVICES PURCHASED HEREUNDER, THE TRANSACTIONS CONTEMPLATED HEREBY, OR SELLER’S OR BUYER’S CONDUCT OR ACTIONS IN RELATION TO ANY OF THE SAME OR TO EACH OTHER, IN AN AMOUNT IN EXCESS OF, AND BUYER’S LIABILITY SHALL BE STRICTLY LIMITED TO, THE PURCHASE PRICE FOR THE PRODUCTS OR SERVICES WHICH GIVE RISE TO BUYER’S LIABILITY.
11. INDEMNIFICATION. Seller agrees to indemnify, hold harmless and defend Buyer (and its employees, subsidiaries, affiliates, successors and agents) from and against any and all judgments, liabilities, damages, losses, expenses and costs (including, but not limited to, court costs and attorneys’ fees) (a) Seller’s breach of any representation, or warranty hereunder; (b) Seller’s actual or threatened violation of any law, rule or regulation of any governmental authority or agency (including, but not limited to, any law relating to contamination by, or the actual or threatened release of, any hazardous or toxic substance, waste or pollutant); or (c) any negligence of Seller with respect to the performance of its obligations to any third party. This indemnity will survive Buyer’s acceptance of and payment for the Products and Services hereunder and any termination of this Purchase Order. This indemnity will not be limited in any manner whatsoever by insurance coverage maintained by Seller.
12. QUIET USE. Seller understands and agrees that (a) the Products and Services are critical to Buyer’s operations, (b) under no circumstances will Seller seek to cancel or otherwise limit or terminate Buyer’s right to use the Products and Services or access any warranty services and (c) its sole and exclusive remedy for any breach of this Purchase Order by Buyer is limited to money damages. In the case of any breach hereof by Buyer, Seller hereby waives its right to seek any injunctive relief that would interrupt or limit Buyer’s access to any Product or Service.
13. Waiver. Buyer shall not be deemed to have waived any provision hereof, or any breach by Seller of any provision hereof, unless such waiver is specifically set forth in writing and executed by an authorized officer of Buyer. No delay or omission to exercise or avail itself of any right, power or privilege that it has (or may have) hereunder, and no course of dealing between Buyer and Seller, will operate as a waiver of any right, power or privilege by Buyer. No waiver by Buyer of any provision hereof or any breach by Seller hereunder shall constitute a waiver of such provision on any other occasion or a waiver of any other breach by Seller.
14. Governing Law. This Purchase Order and the transactions contemplated hereby shall be governed by, and construed and enforced in accordance with, the laws of the Commonwealth of Massachusetts without regard to its conflicts of law rules.
15. SEVERABILITY. The invalidity, illegality or unenforceability, in whole or in part, of any provision, term or condition hereof shall not affect the validity and enforceability of the remainder of such provision, term or condition or of any other provision, term or condition, and, to the extent possible, such invalid, illegal or unenforceable provision shall be replaced by a provision most nearly reflecting the fundamental objectives of the original provision.
16. AMENDMENTS. This Purchase Order may not be amended except by written agreement of Seller and Buyer expressly referring hereto.
17. ASSIGNMENT. Seller’s rights and obligations hereunder may not be assigned or otherwise transferred without Buyer’s express prior written permission. Buyer’s rights and obligations hereunder may be assigned or otherwise transferred without Seller’s express prior written permission.
18. CONFIDENTIAL INFORMATION. Except as otherwise provided in this paragraph, Buyer and Seller agree that all business, technical and financial information Seller obtains from Buyer that is designated as confidential or proprietary in writing, or is disclosed in such a manner that a reasonable person would understand the nature and confidentiality of the information disclosed, is and will be the confidential property of the Buyer and its licensors (“Confidential Information”). This Purchase Order will be treated as the Confidential Information of Buyer. Confidential Information will not include information that (a) was previously rightfully known to the Seller without restriction on disclosure, (b) hereafter becomes known to the general public, through no act or omission on the part of Seller, or (c) is hereafter disclosed to Seller by a third party without breach of any separate nondisclosure obligation. Except as reasonably necessary to perform its obligations hereunder, Seller will not use or disclose any Confidential Information without first obtaining Buyer’s express written consent. Seller will use the highest degree of care to protect the Confidential Information from any unauthorized use or disclosure.
19. CANCELLATION. In the event of Seller’s breach of any provision hereof, Buyer shall have the right to cancel this Purchase Order at any time without liability.
20. SECURITY INTEREST OF BUYER. Seller grants to Buyer a security interest, to the extent any advance payment is made by Buyer, in any Products made or purchased for this Purchase Order and agrees, promptly upon request of Buyer, to sign and deliver to Buyer appropriate UCC forms evidencing such security interest. Upon rejection or revocation of acceptance, Buyer shall have a security interest in Seller’s Products in his possession or control for any payments made on their price, and any expenses reasonably incurred in their inspection, receipt, transportation, care and custody, and may hold and resell such Products, and such resale shall be without prejudice to any other remedies or rights of Buyer against Seller. The remedies herein specifically reserved shall be cumulative and in addition to any other remedies provided by law or equity.
21. RELATIONSHIP OF PARTIES. Notwithstanding any provision hereof, for all purposes of this Purchase Order each party shall be and act as an independent contractor and not as a partner, employee, joint venturer, or agent of the other and shall not bind nor attempt to bind the other to any contract. Seller is acting as an independent contractor and Seller is solely responsible for all taxes, withholdings, and other statutory or contractual obligations properly attributable to Seller, including, but not limited to, appropriate Workers’ Compensation Insurance; and Seller agrees to defend, indemnify and hold Buyer harmless from any and all claims, damages, liability, attorneys’ fees and expenses on account of an alleged failure by Seller to satisfy any such obligations.