Vendor Terms & Conditions

THWING-ALBERT INSTRUMENT CO. PURCHASE ORDER STANDARD TERMS AND CONDITIONS (6/05)

1. 1. 1. ADOPTION OF THE TERMS OF THIS ORDER This Order (Order) is the offer of the Thwing-Albert Instrument Co. (Purchaser) to purchase the goods and services (collectively, the Goods) specified in this Order. Acceptance of this offer is strictly limited to the following terms and conditions. Any terms or conditions proposed by the Seller in any document which are different from, conflict with or add to these Terms and Conditions shall be deemed to materially alter the terms and Conditions and are hereby objected to and rejected by Purchaser. Seller may accept this Purchaser Order by beginning performance or by a written or electronic acknowledgement. Such acceptance creates a binding contract.
      2. ASSIGNMENT. Seller shall not assign, delegate or subcontract any of its rights or obligations hereunder to any other party, including but not limited to any successor in interest of Seller after the date of this Order including but not limited to merger, stock sale, bankruptcy petition or assignment for the benefit of creditors, without the prior written approval of Purchaser. Any assignment, delegation or subcontract without such written consent shall be void.
      3. APPLICABLE LAW. This Order shall be a contract made in and governed by the laws of New Jersey.
      4. BENEFICIARIES OF CONDITIONS. Except as expressly provided in writing by the Purchaser, nothing herein shall be construed to confer any rights or benefits upon any person or entity other than the parties.
      5. CHANGES. Without prior written order from Purchaser, Seller shall make no alteration or change in any provision of or the work specified by this Order, or any of the provisions incorporated by reference. Purchaser at any time may change the specified work and, if such change materially increases or decreases the cost of performing the Order, the contracted price(s) shall be adjusted by written modification, except that Purchaser shall not make such adjustment if Seller fails to notify Purchaser of its proposed price(s) increase(s) within 14 days of Purchaser’s notice of such change.
      6. COMPLIANCE WITH LAW. Seller shall comply with all applicable federal, state and local laws, rules and regulations. 7. DELIVERY SCHEDULE. Seller shall adhere strictly to the delivery schedule specified in this Order. Purchaser shall not be obligated to accept Goods delivered and/or rendered by Seller either before or after the date(s) set forth in the delivery schedule herein.
      7. DELAY AND DEFAULT. Time is of the essence because timely delivery of the Goods by Seller is required to enable Purchaser to comply with its contract or order with Purchaser’s customer(s). If Seller ascertains that it cannot comply with the specified delivery schedule, it must notify Purchaser immediately, in writing, whereupon Purchaser shall be entitled to require expedited performance, if feasible, at Seller’s expense. Seller shall be responsible for any additional transportation costs incurred as a result of any such delay or default. If Seller fails to perform with diligence, or to deliver the Goods by the time(s) specified in the delivery schedule, Purchaser may (a) accept the late delivery, or (b) terminate this Order for cause in whole or part without prejudice to any other rights of Purchaser at common law or by statute.
      8. DISPUTES. A court of competent jurisdiction may decide any dispute that arises under or is related to this contract that cannot be settled by mutual agreement of the parties. Pending final resolution of any dispute, Seller shall proceed with performance of this Order according to Purchaser’s instructions so long as Purchaser continues to pay amounts not in dispute.
      9. FAIR LABOR STANDARDS ACT. Seller warrants, and by submitting invoices hereunder Seller certifies, that the Goods tendered for acceptance and/or performed were produced or performed in full compliance with the Fair Labor Standards Act of 1938, as amended, as well as all applicable federal and state workmen’s compensation and other laws effecting the employment of labor.
      10. FINANCIAL RESPONSIBILITY. Seller warrants that it has and will maintain sufficient working capital to perform this Order. Purchaser may terminate this Order under the Delay and Default provisions of this Order if Seller (a) fails to maintain said working capital, (b) becomes bankrupt or insolvent, (c) makes any assignment for the benefit of its creditors, or if (d) a trustee or receiver for any substantial part of Seller’s assets is appointed. Any forbearance of such rights by Purchaser shall not be deemed a waiver thereof.
      11. FORCE MAJEURE. Purchaser shall have the right to suspend shipments from Seller without penalty or liability to Purchaser in the event of war, riot, flood, acts of God, fire, court order, strike, work stoppage, act of governmental authority, or other causes beyond Purchaser’s control. Purchaser shall not be liable to Seller for its failure to accept delivery of any Goods, provided such failure arises from such above-mentioned causes.
      12. FULL AGREEMENT. This Order and all documents incorporated herein by reference (a) constitute the full and complete agreement between the parties hereto and (b) supersede all prior proposals, negotiations and representations of the parties hereto. Except as provided for in the Changes provisions above, no modification hereof shall be valid and binding unless made in writing signed by an authorized representative of each party hereto. In the event any provision of this Order is declared invalid by any tribunal or law, the other provisions shall not be affected thereby, and each term and provision not declared invalid or unenforceable shall be valid and shall be enforced to the fullest extent permitted by law.
      13. INDEPENDENT CONTRACTOR. Seller shall be an independent contractor for all purposes. Neither Seller nor any person employed by it, its agents, or representatives, shall be deemed to be a representative, employee or agent of Purchaser.
      14. INTELLECTUAL PROPERTY INDEMNITY. Seller shall indemnify, defend and hold harmless Purchaser and its customer from all claims, suits, actions, awards, liabilities, damages, costs and attorneys’ fees and costs related to the actual or alleged infringement of any United States or foreign intellectual property right (including, but not limited to, any right in a patent, trademark, service mark, industrial design or copyright, or based on misappropriation or wrongful use of information or documents) or any claim for unfair competition, arising out of or in any way connected with the manufacture, use or sale of any item delivered, or service performed, or the incorporation into the work specified in this Order, of anything protected by any such intellectual property right. Purchaser or its customer will duly notify Seller of any such claim, suit or action; and Seller will, at its own expense, fully defend such claim, suit or action on behalf of Purchaser and its customer. For purposes of this provision only, the term Purchaser includes Thwing-Albert Instrument Co. and all of its officers, agents and employees.
      15. LIENS. All items delivered to Purchaser hereunder shall be free of all liens and, upon Purchaser’s request, Seller shall provide evidence of such freedom.
      16. NON-DISCRIMINATION IN EMPLOYMENT. Seller warrants that a) neither Seller nor any of its subcontractors or any of their agents or employees shall discriminate against any applicant for employment or employee because of race, creed, color or national origin and b) Seller and its subcontractors shall comply with all applicable federal, state and local nondiscrimination laws and regulations, including the Civil Rights Act of 1964, as amended, and Executive Order 10925, as amended.
      17. NON-WAIVER. Purchaser’s inspection, discovery of any breach of warranty, failure to inspect or discover any breach of warranty or failure to enforce any right or provision of this Order shall not constitute a waiver, or be construed to waive any, of Purchaser’s rights or remedies whatsoever.
      18. NOTICES. All notices required or permitted hereunder shall be in writing and shall be deemed to have been duly given, made and received when personally delivered against or upon actual receipt by registered or certified mail, to the respective addresses of the parties.
      19. OTHER REMEDIES. Purchaser’s rights and remedies set forth herein and provided by law shall be cumulative and concurrent and not exclusive.
      20. PACKING, MARKING AND SHIPPING. Seller shall pack, mark and ship all Goods in accordance with the requirements of this Order and so as to be in compliance with all applicable transportation regulations and good commercial practice for protection against damage from weather and shipment, including all applicable federal, state and local laws and regulations for the packaging, labeling, transportation and shipping of hazardous materials. Seller shall secure the most advantageous transportation services and rates consistent therewith. No separate or additional charge is payable by Purchaser for containers, crating, boxing, handling, dunnage, drayage or storage unless specifically agreed to by Purchaser in writing. Seller shall mark each container with the number of this Order and shall enclose a packing slip with this Order number in an envelope attached to each container. Damage resulting from improper packing or shipping will be charged to Seller.
      21. PAYMENT, PRICE AND CHARGES. Purchaser shall pay Seller, upon the submission of proper invoices or vouchers, the price(s) set forth in this Order for the Goods delivered or Services performed, and accepted, less any deductions provided for in this Order, on net 30 day terms, unless this purchase order is for end items purchased for resale to a third party without modification by purchaser (“Resale items”). Payment for Resale items shall be made net 30 days from the date of receipt of payment in full by purchaser from purchaser’s customer for the resale item. Seller’s invoice shall include the number of this Order and sufficient description of the Goods delivered and/or performed. Seller shall not issue any invoice prior to the scheduled or actual delivery date, whichever is later. The payment due date and any discount period shall be based on the latest of the scheduled delivery date, actual delivery date or the date of receipt of a correct invoice. Seller shall promptly remit to Purchaser any amounts paid in excess of the amounts due Seller. Except as otherwise expressly provided for in this Order, Purchaser shall not be liable for any other cost, expense or charge, including for freight, insurance, boxing, packing, bracing or cartage.
      22. PROPRIETARY INFORMATION. Seller agrees that the drawings, specifications, verbal knowledge, sketches, and engineering and manufacturing data and designs (“Information”) provided by Purchaser to Seller prior to or during performance include Information proprietary and confidential to Purchaser; the title to which Information Purchaser shall retain and Seller shall keep strictly confidential. Seller, its employees and agents shall not, without Purchaser’s written consent, use such Information in whole or in part for their own benefit or to Purchaser’s detriment; or disclose any such Information in whole or in part to any other person. Seller shall promptly return to Purchaser all such Information, and all copies thereof, upon the completion, termination or expiration of this Order.
      23. PURCHASER SOURCE INSPECTION. At no additional cost to Purchaser and without unreasonably delaying or interfering with Seller’s performance, Purchaser may inspect Seller’s and its subcontractors’ facilities and may inspect and test any and all Goods, including contracted services, to be rendered for performance hereof, but such inspection and test shall not relieve Seller of any obligation to comply with the provisions of this Order nor prejudice Purchaser’s rights and remedies herein; Seller shall maintain inspection and quality control systems acceptable to Purchaser; Seller shall furnish and require its subcontractors to furnish, without additional cost to Purchaser, reasonable facilities and assistance for the performance of such inspections and tests; and final acceptance shall be at Purchaser’s designated facility.
      24. REJECTIONS. If any item specified herein tendered to Purchaser does not conform to the requirements hereof or is defective in material or workmanship, in addition to any other rights, Purchaser shall have the right, at its option and at Seller’s expense: (a) to reject such item and return it to Seller for credit or refund, (b) to require Seller to promptly repair or replace such item, (c) to correct the Goods, or (d) obtain replacement Goods from another source and notify Seller that Purchaser deems such item to be scrap, provided Purchaser holds such scrap for 30 days for inspection by Seller before Purchaser will be entitled to dispose of it as Purchaser sees fit without liability to Seller and at Seller’s expense.
      25. RISK OF LOSS. All risk of loss or injury to persons of Seller and to property, work in progress, and equipment of Seller shall be upon Seller and Seller agrees to hold Purchaser harmless therefor.
      26. SET-OFF. Any sum owed by Seller to Purchaser may be deducted from amounts payable hereunder.
      27. TAXES. Seller shall accept all tax exemption certificates provided by purchaser. The Order’s price(s) includes all applicable federal, state, and local taxes and duties. If any of those taxes are repealed or their rates reduced prior to final payment under this Order, Seller shall notify Purchaser of the amount of the reduced/repealed taxes applicable to this Order and the Order shall be reduced for that amount.
      28. TERMINATION. Purchaser shall have the right to terminate this Order at any time, in whole or in part, upon delivery of written notice to Seller. Upon receipt of such notice, Seller shall immediately stop performance and cancel all cancelable commitments and do only such work as is necessary to preserve and protect the existing work in progress. In such event, Purchaser’s liability shall be limited to payment of the specified price for the Goods received, the cost of preparatory work performed prior to such termination and a reasonable profit on such costs, provided Seller shall provide detailed invoices, receipts and like proofs to substantiate the amount of such costs, but provided further that in the event of a termination for cause under the Delay and Default provisions above, no such preparatory costs or profit on those costs shall be payable. In no event shall Purchaser be liable to Seller for any anticipated profit or unabsorbed or other indirect expenses not directly attributable to work actually performed or material or equipment actually ordered as of the date of the termination notice. Seller’s costs shall be subject to Purchaser’s audit.
      29. TITLE TO PURCHASER’S PROPERTY. Title to all tools, equipment, materials and property paid for by Purchaser or furnished by Purchaser to Seller shall be and remain in Purchaser. Such property shall be clearly marked ” Property of Thwing-Albert Instrument Co.” and shall not be commingled with Seller’s property, nor shall Seller substitute any property for such property of Purchaser. While in Seller’s custody or control, Purchaser’s property shall be held at Seller’s risk and shall be subject to removal by Purchaser upon Purchaser’s written request.
      30. WARRANTY. In addition to Seller’s standard warranty, any other warranty prescribed in this Order and any arising under applicable law, Seller expressly warrants that all Goods furnished under this Order shall comply with the provisions, plans, drawings, specifications, and samples (if any) set forth in this Order (or incorporated by reference), and shall be merchantable, fit for their intended purpose, and free from defects in material and workmanship.
      31. WORK ON PURCHASER’S OR CUSTOMER’S PREMISES. If Seller’s work under this Order requires work or property or persons of Seller to be within the premises of Purchaser or one of Purchaser’s customers, then Seller (a) shall comply with all the rules and regulations established by Purchaser or its customer, as applicable, for access to and activities on such premises; and (b) hold harmless Purchaser and activities on such premises; and (b) hold harmless Purchaser and its customers from all claims, suits, actions, liabilities, damages, awards, costs and losses for injury and damage to persons and to property arising out of any such act or omission of Seller in performing such work, including attorneys fees, costs and expenses, except to the extent any such cost or loss is due to the negligence of Purchaser or its customer. Seller shall maintain appropriate insurance or self-insurance to assure that Purchaser is protected from liability under any workmen’s compensation and occupational disease laws.