The Purchase Order is given and accepted subject to the following terms and conditions. No terms additional to or different from these terms and conditions shall be binding on HandyTube (Hereafter “Buyer”) unless and until accepted by Buyer in writing.
OFFER AND ACCEPTANCE, This Purchase Order includes these terms and conditions and all specifications attached hereto or expressly incorporated by Buyer herein by referenced. Seller’s acceptance of this Purchase Order or delivery or provision of “Product” as defined herein shall constitute acceptance by Seller of each and every term and condition herein. Buyer reserves the right to revoke the Purchase Order at any time prior to Seller’s acceptance hereof.
DEFINITION OF “PRODUCT”, The term “Product” as used herein means, a) materials, supplies, diagrams, equipment, data and other articles or property and/or b) services as the case may be, which are to be delivered under this Purchase Order and includes design, installation, inspection and testing as specified herein or as required to supply or furnish same.
DOCUMENTATION, All invoices, shipping documents, labels, receipts and related correspondence and documentation referring to this Purchase Order shall carry Buyer’s Purchase Order number. Seller’s invoices shall clearly specify all Federal, state or municipal sales and use, excise and transportation taxes relating to the Product, and shall certify that the Product was produced, supplied and labeled in accordance with all applicable Federal, state and local statutes, administrative rules and regulations, including but not limited to the provisions of the Fair Labor Standards Act, as amended.
DELIVERY; TRANSPORTATION; RISK OF LOSS, Delivery of the Product shall be F.O.B. Buyer’s address set forth on the face hereof, at the lowest cost form of transportation as commercially reasonable, unless otherwise specified by Buyer in this Purchase Order. Seller shall be liable for any difference in transportation charges between shipment as made and shipment as requested by Buyer in this Purchase Order, and such difference may be deducted by Buyer from payment to Seller. All transportation charges, including insurance, are to be prepaid by the Seller, and in the event such charges are not prepaid, Buyer shall have the right to refuse acceptance of this Product and cancel this Purchase Order. Title to and risk of loss of the Product shall remain with the Seller until receipt by Buyer.
INSPECTION; PAYMENT, Buyer shall have the right to inspect the Product following Buyer’s receipt thereof and, at Buyer’s option, prior to receipt thereof of Sellers premises. Buyer’s payment for the Product shall not be deemed to constitute acceptance thereof nor shall such payment be deemed to constitute a waiver by Buyer of any warranty of Seller, express or implied.
TIME FOR PERFORMANCE, Seller’s performance under this Purchase Order by delivery of the Product at the date or dates specified therefore is a material term hereof and time is of the essence. In the event that Buyer does not receive the Product (or installment, thereof, as applicable) on or before the date herein specified for delivery, Buyer shall have, in addition to all other remedies provided by law, the right to cancel this Purchase Order, in its entirety, without liability to Buyer. Buyer reserves the right to procure the Product elsewhere, in whole or in part, and charge Seller with any additional costs incurred unless Seller’s default arises from causes beyond its control and without fault or negligence. Buyer at its option, may accept delivery of the Product (or installment thereof, as applicable) on a date or dates different from those specified for delivery herein without waiver of any rights by Buyer as to prior or subsequent deliveries of Product.
WARRANTY; REMEDIES, Seller warrants that the Product shall conform in all respects to the terms, conditions, and specifications of this Purchase Order, shall not differ from any approved sample Product, that all designations or markings appearing on the Product relating to the weight, measurement, ingredients or quality of the Product shall represent the true net weight, measurement, ingredients or quality thereof, that the Product shall be merchantable, fit for its intended use and free from defects in materials and workmanship. In the event the Product does not conform or is defective and Buyer (or within one year after discovery by Buyer or Buyer’s customer in the case of latent nonconformity or defect) Seller shall promptly remedy the same at Seller’s sole cost and expense, by repair, modification, replacement or full refund at Buyer’s option and Buyer shall have all other remedies provided by law.
REPAIR BY BUYER, Buyer may, without waiver of any other right of Buyer hereunder repair, alter, or modify at Seller’s sole cost, Product which is not in conformity with the terms and specifications of this Purchase Order up to the point of the value of the material.
INDEMNIFICATION OF BUYER, In the event solely of any defect in material supplied, Seller shall be liable to Buyer for, and shall defend, hold Buyer harmless and indemnify Buyer from and against, any and all suits, actions, proceedings, claims, liabilities, judgments, damages, interest, attorney’s fees, expenses and costs whatsoever, no matter when the same may arise or be sustained, whether relating to injury to person or property or any other loss, which are or are claimed to be in any manner caused, contributed to or occasioned by reason of the default or breach of any term or condition of this Purchase Order by Seller or Seller’s agent, or by the performance or failure to perform hereunder by Seller or Seller’s agent, or by the negligence, whether active or passive, intentional act of Seller or Seller’s agent. If this Purchase Order requires Seller to furnish services of a supervisor, expert, agent or other employee of Seller’s, in performing such services is not an employee or agent of Buyer and Seller assumes full responsibility for such person’s acts and omissions and agrees to indemnify and hold Buyer harmless from any claims whatsoever arising there from. Seller shall maintain such public liability, property damage and employee liability and compensation insurance as will protect Buyer from said risks and claims.
CHANGES; CANCELLATIONS, Buyer and Seller shall both agree before any changes in quantity, scope, specifications, time of performance or other content of this Purchase Order. Seller shall notify Buyer in writing immediately in the event that Seller desires to adjust Seller’s quoted price for the Product or delivery thereof as set forth in this Purchase Order due to any requested change. Buyer shall not, under any circumstances, be obligated by such adjustment to pay more than the price stated in this Purchase Order (or the price derived by application of “PRICES; DISCOUNT” section thereof, as applicable) for all Product previously delivered by Seller, plus Seller’s actual out of pocket cost with respect to the uncompleted portion of the Purchase Order.
TITLE: PATENTS: COPYRIGHTS, Seller warrants that it has good and transferable title to the Product free from any claim of any third-party. Seller further warrants that neither the Product nor the sale thereof infringes on any patent held by the Supplier or Seller and Seller shall defend and hold Buyer harmless from and against all costs, expenses, including attorney’s fees and damages or loss occasioned by any alleged infringement of any patent upon a Supplier or Seller patent or copyright, whether by reason of the sale or use of the Product or because the same is enjoined. In the event the Product is asserted by the Seller to be protected by one or more patents owned or controlled by the Seller and suit is instituted to declare any such patent or its claims invalid or so limited in scope as to impair the Product’s commercial protection in addition to all other remedies provided to Buyer herein, Buyer shall have the right to cancel this Purchase Order without obligation or liability.
DRAWINGS: TOOLS: INSURANCE, All drawings, prints, molds, templates, dyes, patterns, tools, specifications, sketches, blueprints, prototypes, and similar items furnished by Buyer to Seller in connection with this Purchase Order shall remain Buyer’s property and shall be returned to Buyer, at Buyer’s request, in the same condition as originally received by Seller, reasonable wear and tear expected. Seller shall keep all such items insured while in Seller’s custody at no less than the replacement cost thereof, which insurance shall name Buyer as loss payee.
FORCE MAJEURE: DEFERMENT OF DELIVERY, In the event of fire, flood, strike or similar or labor disturbances, action of Federal, State or Local governmental authority or subdivision, accident, war or any other cause whatsoever beyond the reasonable control of Buyer or Seller which prevents or materially interferes with Buyer’s acceptance or use of the Product, Buyer or Seller may, without obligation or liability to Buyer or Seller cancel this Purchase Order in whole or in part or delivery of the Product.
QUANTITIES; COUNT, Seller’s delivery of Product in excess of that provided for in this Purchase Order shall not obligate Buyer to purchase any such excess. Excess quantities of Product may be returned to Seller and Seller shall reimburse Buyer for any costs or expense including all transportation charges incurred by Buyer with respect thereto. Buyer’s count of the Product shall be conclusive.
PRICES; DISCOUNT, Seller shall provide the Product at prices no higher than as specified on the face of this Purchase Order, which Seller warrants to be no greater than Seller’s price to similar Buyer’s for the same or similar quantities of the Product. In the event that no price is specified, the price of the Product shall be the lower of (a) Sellers last quoted price for similar quantities of the Product to purchasers similar to Buyer; or (b) the then prevailing market price for the Product at the date of delivery by Seller; or (c) Seller’s last quoted price to Buyer for the Product. Buyer shall not pay any charges whatsoever except as specifically set forth on this Purchase Order, whether for packing, loading, packaging, any other service, or material or administrative activity. Terms of payment are net thirty (30) days from the date of invoice unless otherwise mutually agreed to by Buyer and Seller. Discount items shall be calculated from the date the invoice is received by Buyer or the date after the Product covered by the invoice is received by Buyer, whichever is later.
ANTI-BRIBERY. Seller shall comply fully at all times with applicable national and international antibribery rules, including, without limitation, the U.S. Foreign Corrupt Practices Act, the UK Bribery Act 2010, and any other applicable EU, OECD and Council of Europe anti-bribery rules. Seller will not offer, make, promise to make, or authorize the making of any gift or payment of money or anything of value either directly or indirectly for purposes of (a) influencing any act or decision of any government official or political party (or candidate thereof) (collectively, “Officials”); (b) inducing an Official to do or omit to do any act in violation of the lawful duty of that Official; or (c) inducing an Official to use influence with a non-U.S. government or instrumentality to facilitate Seller’s performance of its obligations under this Agreement and Order.
CONFIDENTIALITY, The terms and conditions of this Purchase Order shall be kept confidential by Buyer and Seller and Buyer and Seller take all necessary measures to ensure the confidentiality of the Seller and Buyer’s scientific or technical data, specifications, engineering drawings, blueprints, and information identified by the Seller or Buyer as proprietary or trade secrets. Such information shall be disclosed within the Buyer and Seller’s organization solely on a need-to-know basis.
COMPLIANCE WITH OCCUPATIONAL SAFETY LAW, Seller shall comply in the performance of this Purchase Order with each and every provision of the applicable Federal, State or Local law, rule or regulation, including those set forth in applicable Executive Orders, as amended or superseded, relating but not limited to such matters as employment of veterans and handicapped persons, nondiscrimination, equal opportunity, utilization of minority business, small business, labor surplus area business and women owned by business, each such provision being deemed by this reference to be expressly incorporated herein.
NON-WAIVER, Neither Buyer’s exercise or failure to exercise any right or remedy granted or provided by this Purchase Order or Buyer’s acceptance of or payment for the Product shall be construed to be a waiver or any right or remedy Buyer may have for Seller’s then existing or subsequent default, breach or non-compliance there under.
ASSIGNMENT, This Purchase Order may not be assigned by Seller in whole or in part without the prior written consent of Buyer and any such attempted assignment shall be null and void. Buyer may offset against amounts payable to any person under this Purchase Order any claim or charge it may have against Seller.
GOVERNING LAW, This Purchase Order, and Seller’s acceptance hereof shall be governed by the laws of the State of New York.
ENTIRE AGREEMENT, This Purchase Order constitutes the sole and entire agreement between the Buyer and Seller relating to the subject matter hereof and all prior or contemporaneous understanding or agreements, oral or written are merged herein. No subsequent changes or modifications to this Purchase Order shall be binding unless expressly accepted by Buyer in writing. Seller expressly waives all provisions contained in correspondence, forms, or other writings related to the sale of the Product covered by this Purchase Order which negate, limit, extend or otherwise conflict with the provisions hereof.
The sale of goods described on the face side hereof (“Goods”) is made on the express condition that Buyer assents to the promises, terms, and conditions set forth below, whether or not they are additional to or different from any terms and conditions proposed by Buyer. HandyTube Corporation (“Seller”) expressly objects to Buyer’s additional, different or conflicting terms.
1. Deliveries. The Goods will be delivered FOB place of shipment unless otherwise specified on Buyer’s order and shipment may be made by the method or carrier deemed most feasible by Seller. Freight allowances, if any, are based on rates prevailing on the date of price quotation. Buyer shall pay any freight increases upon due date for payment of Goods. The Goods furnished hereunder shall be produced and their amounts determined in accordance with Seller’s standard practices.
2. Cancellations. Cancellations by Buyer shall only be permitted with the written consent of Seller. Buyer may be required to pay to Seller the costs incurred up to the date of termination of finished work and work in progress allocable to the terminated work and any additional expenses incurred by Seller. Seller reserves the right to cancel any order for Goods owing to: (a) its inability to perform due a Nonliability Event (as defined below); (b) a change in the identity of the Buyer; (c) a failure on the part of the Buyer to pay its account when due; or (d) for any other reason that Seller finds it impossible, despite its best efforts, to perform hereunder.
3. Risk of Loss. After delivery of the Goods to the carrier, and in other circumstances as provided by law, Buyer shall bear all risks of loss, whether or not the products so delivered are conforming or non-conforming, whether or not a right of rejection exists in Buyer’s favor, and whether or not Buyer rightfully revokes acceptance. The occurrence of any such risk shall not release Buyer from its obligations hereunder.
4. Warranties. Seller warrants only that the Goods conform to Seller’s published specifications, if any, and the description on the face hereof for a period of 60 days from the date of shipment. This limited warranty does not apply to any Goods that have been repaired or altered outside Seller’s facility or which have been subject to misuse, negligence, accident, or failure to properly install or apply. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY WITH RESPECT TO NON-INFRINGEMENT OF THE PATENT RIGHTS OF OTHERS OR ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR USE. This warranty is afforded by Seller only to Buyer and shall not be assigned or transferred. If Buyer elects to afford any warranty to its customers, Seller shall have no liability whatsoever in connection therewith.
5. Anti-Bribery. Buyer shall comply fully at all times with applicable national and international antibribery rules, including, without limitation, the U.S. Foreign Corrupt Practices Act, the UK Bribery Act 2010, and any other applicable EU, OECD and Council of Europe anti-bribery rules. Buyer will not offer, make, promise to make, or authorize the making of any gift or payment of money or anything of value either directly or indirectly for purposes of (a) influencing any act or decision of any government official or political party (or candidate thereof) (collectively, “Officials”); (b) inducing an Official to do or omit to do any act in violation of the lawful duty of that Official; or (c) inducing an Official to use influence with a non-U.S. government or instrumentality.
6. Credit. Any credit is subject to final approval by an authorized officer of Seller at its main office.
7. Payment Terms. Payment is due 30 days after invoice, unless otherwise stated.
8. Service Charge. Buyer agrees to pay a service charge of the lesser of 1-1/2% per month or the maximum allowed by applicable law on all unpaid amounts after due date.
9. Modification. No modification of any promise, term or condition of sale shall be of any force or effect unless signed by an officer of Seller.
10. Claims of Buyer. As a condition precedent to recovery of any claim of any kind, Buyer must comply with the following. All claims of any kind, except nonreceipt, must be made to Seller within five days after receipt of shipment. Claims for non-receipt must be made in writing delivered to Seller within twenty days after receipt of an invoice. Seller’s liability for breach of warranty or contract shall arise only upon prompt return of the products claimed to be defective at Buyer’s expense and after due notice to Seller of the claimed breach.
11. Buyer’s Exclusive Remedies: Exclusion of Remedies. The monetary remedy for any claim for nonreceipt of all or part of Buyer’s order or any other claim of any kind except breach of warranty shall be limited to the purchase price of the Goods affected, as shown on the invoice. Seller’s liability for breach of warranty shall be limited to the furnishing of a like quantity of the same products free from defects or, at Seller’s option, to the refunding of the purchase price of the defective product. The foregoing shall constitute Buyer’s exclusive remedies. IN NO EVENT SHALL SELLER BY LIABLE, WHETHER IN CONTRACT, TORT, WARRANTY, OR UNDER ANY STATUTE OR ON ANY OTHER BASIS FOR SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, MULTIPLE OR CONSEQUENTIAL DAMAGES SUSTAINED BY BUYER OR ANY OTHER PERSON OR ENTITY ARISING OUT OF SELLER’S PERFORMANCE OR FAILURE TO PERFORM ITS OBLIGATIONS RELATING TO THE PURCHASE OF GOODS OR PERFORMANCE OF SERVICES, THE POSSESSION OR USE OF ANY PRODUCT, OR THE PERFORMANCE BY SELLER OF ANY SERVICES, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT SELLER IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM OR RELATED TO DOWNTIME, LOSS OF REVENUE, LOST PROFITS, LOST GOODWILL, LOST BUSINESS OR ANY OTHER FINANCIAL LOSS. Buyer waives all right of offset for any alleged obligation of breach of contract and breach of warranty (except as set forth herein), negligence, strict liability in tort, and/or other tort. The waiver, agreement and release in the foregoing sentence is binding upon Buyer’s successors in title and assigns.
12. Risk of Seller’s Nonperformance. The following shall be hereinafter known as Nonliability Events: action by governmental authority, public enemy, insurrection, rebellion, or riot; fire; explosion; flood; severe weather conditions; accidents; labor trouble or strikes; shortage of inventory, raw material, power or fuel; difficulties with equipment or transportation; or acts of God or any other cause or events beyond Seller’s control. In the event of delays in delivery or nondelivery of the goods which, directly or indirectly, were caused by a Nonliability Event or to which a Nonliability Event contributed, Seller shall not be liable for damages, whether direct, incidental, or consequential, and (a) the time for performance shall, at Seller’s option, be extended in whole or in part until the termination of the Nonliability Event and for an additional period thereafter reasonably necessary to cure the effects thereof, or (b) at Seller’s option, a part or all of the Goods affected may be eliminated from the contract of sale, without any liability to Seller; and the contract price shall be appropriately reduced.
13. Prices, Taxes and Other Additional Charges. Prices on Goods covered may be adjusted at Seller’s option. Seller may adjust prices (a) to those Seller has in effect at the time of shipment; (b) for delays acceptable to Seller or (c) for Seller’s specific consent to delivery material beyond a twelve-month period from the initial contract date, to cover the additional charges involved through (b) or (c). In addition to the price for the Goods, Buyer will pay Seller the amount of any excise, sales, use, or similar tax relating to the Goods or their sale, and any freight (unless there is an express freight allowance) stop-over charge, lot loading charge, demurrage charge or the like relating to the transportation or storage of the Goods, which Seller is legally obligated to pay, within ten days after the date of an invoice for the charge.
14. Assignment. The contract for sale of the Goods is not assignable in whole or in part by Buyer without the written approval of Seller, and any attempted assignment shall be void.
15. No Sales “on Approval” or “Sale Return”. No sale is made on approval or under a sale or return. Seller may, however, at its option, allow a return. Any such return shall be at Buyer’s sole risk and expense; return shall be effected only upon actual delivery to Seller or as otherwise instructed by it in writing. No credit, whether by refund of monies paid or by allowance against monies due, shall be given until such actual receipt by Seller of return products in the same condition as they were when delivered to the carrier by Seller for original shipment to Buyer.
16. Governing Law. The contract for sale for the Goods shall be governed by the laws of the State of Delaware, excluding both its choice of law provisions and the UN Convention on Contracts for the International Sale of Goods. The parties agree that the exclusive venue for pursuing any claim arising hereunder shall lie in the state or federal courts of the State of Delaware, but that a judgment from such courts may be enforced in any court of competent jurisdiction.
17. Seller’s Non-Exclusive Remedies. Upon any breach by Buyer of any promise, term, and/or condition contained herein, including, but not limited to, the nonpayment by Buyer of any amount due hereunder, or if Seller deems itself insecure, Seller may, at its option, and without prejudice to or limitation of any other legal remedy hereunder, by law, or otherwise, resort to one or more of the following remedies: (a) suspend further deliveries, even though partial payment for undelivered Goods has been received; (b) demand adequate assurance of due performance, including but not limited to, the delivery to Seller of a third-party bond satisfactory to Seller; (c) declare the unpaid balance of the contract immediately due and payable; (d) collect from Buyer all costs of collection, including but not limited to, reasonable attorneys’ fees incurred in enforcing any right or remedy hereunder or in law, pertaining in whole or in part to the goods; and (e) reposes and/or reclaim the Goods or any part thereof. Buyer hereby agrees, upon demand, to assemble the Goods or any part thereof to Seller, at Buyer’s expense, all in accordance with Seller’s instructions. Buyer hereby grants Seller a security interest in the Goods and any and all proceeds thereof and accessions thereto to secure all of Buyer’s obligations hereunder under this or any other agreement. Buyer hereby irrevocably appoints Seller as Buyer’s lawful attorney-in-fact to execute and file all documents necessary to desirable to effectuate the purposes of this paragraph, including but not limited to, appropriate financing statement. A photo static copy of this document may be filed as a financing statement.
18. No Implied Waiver. The failure of one party to require performance by the other party of any provision of these Terms and Conditions shall not affect the right to require performance at a later time. The waiver by one party to a breach by the other of any provision of these Terms and Conditions must be in writing and shall not be deemed a waiver of any later breach of the provision.
19. Statement of Responsibilities. Each customer or user of Seller’s Goods is solely responsible for determining the suitability of the Goods selected for the intended application. Each customer or user must conduct its own studies and gain all necessary approvals and certifications as required for the intended finished product.
20. Integration Clause. These Terms and Conditions constitute the entire agreement between the parties with respect to the subject matter hereof and there are no agreements, understandings, representatives or warranties, except as expressly set forth herein. These Terms and Conditions supersede all previous and contemporaneous communications, representations, understandings and agreements. Any purchase orders submitted by Buyer shall be for administrative purposes only. These Terms and Conditions shall supersede any different, conflicting or additional terms used by Buyer in the ordering, shipment and receiving of Goods. Notwithstanding anything to the contrary herein, Seller reserves the right to correct all stenographic or arithmetical errors which appear on the front of this Agreement, or any invoice relating hereto.