PURCHASE ORDER TERMS AND CONDITIONS
THESE TERMS AND CONDITIONS SHALL EXCLUSIVELY GOVERN ANY CONTRACT RESULTING OR ARISING OUT OF A PURCHASE ORDER SUBMITTED BY THE APPLICABLE EAST TEXAS SEALS, LLC (ETS), SUBSIDIARY (“BUYER”). THESE TERMS AND CONDITIONS SHALL SUPERCEDE AND REPLACE ALL OTHER INCONSISTENT DOCUMENTS OR OTHER AGREEMENTS, STATEMENTS OR PROPOSALS (INCLUDING THOSE IN ANY DOCUMENT SUBMITTED BY SUPPLIER AS PART OF ITS ACCEPTANCE OF THIS PURCHASE ORDER), ALL OF WHICH ARE HEREBY REJECTED.
1. PACKING AND SHIPMENT: Supplier will pack and ship goods and materials as specified, without charge for boxing, crating, carting, or storage unless otherwise specified. Supplier will pack goods and materials in a suitable manner to secure lowest transportation costs and in accordance with the requirements of common carriers. A packing list will accompany each shipment showing Buyer’s order number, item number, and an item description. If the shipment is not accompanied by a packing list, Buyer’s count or weight will be final and conclusive. Supplier will pack items to preclude damage from weather and normal transfer handling.
2. DELIVERY: Except as herein otherwise specified, Supplier will make delivery strictly in accordance with the delivery schedule set out or referred to in this Purchase Order. If a delivery fails to meet such schedule, and Buyer elects to call upon Supplier for express shipments, Supplier will pay the difference between the freight and express rates. Buyer may return to Supplier at Supplier’s risk and expense any items shipped to Buyer in advance of schedule without written approval of Buyer. Title and risk of loss to items covered by the Purchase Order will pass from Supplier to Buyer at the F.O.B. point specified herein. Passing of title upon such delivery will not constitute acceptance of the items by Buyer. Time is of the essence for Supplier’s performance under the Purchase Order. Unless otherwise agreed in writing by Buyer, Supplier shall not make material commitments or production arrangements in excess of the amount or in advance of the time necessary to meet Buyer’s delivery schedule.
3. WARRANTY: Supplier warrants that all items covered by the Purchase Order will (a) conform to the specifications, drawings, symbols or other description furnished or specified by Buyer and be merchantable, of good material and workmanship, and free from defect, and (b) be fit and sufficient for the purposes intended by Buyer, as disclosed to Supplier. Supplier warrants that any services performed by Supplier will be performed in accordance with high standards of skill and competence. All warranties will run to Buyer, its successors, assigns and to Buyer’s customer and the user of Buyer’s products, and will survive inspection, acceptance and payment.
4. INSPECTION: All goods and materials ordered are subject to final inspection and approval at destination by Buyer, notwithstanding prior payments, or inspection at source, it being expressly agreed that payment will not constitute final acceptance. Buyer, without limitation to its other rights under the Purchase Order, may reject any item that contains defective materials or workmanship, or does not otherwise conform to applicable specifications, drawings, symbols or other description. Buyer may return rejected items at Supplier’s risk and expense in exchange for refund of any payments plus incoming transportation charges, if any, and Supplier will not replace rejected items unless specified in writing by Buyer. Supplier will provide a complete inspection system, satisfactory to Buyer, covering the inspection of all goods and materials, fabricating methods, jigs, fixtures, dies and unfinished articles, and Buyer will have the right to inspect Supplier’s plant or facility at all reasonable times during performance of the Purchase Order. Acceptance of any items will not be deemed to alter or affect the obligations of Supplier or the rights of Buyer under Section 3 above.
5. PATENT PROTECTION: Supplier agrees to indemnify and hold harmless and protect Buyer, its successors, assigns, customers and the users of its products from and against all loss, damage, liability, claims, demands and suits at law or in equity, including cost of suit and attorney’s fees, for actual or alleged infringement of all patent, trademark or corresponding rights. Supplier agrees to disclose and on request to assign to Buyer, at no expense to Buyer, any invention, improvement or discovery conceived or first reduced to practice arising from designs, tools, patterns, drawings, materials or other information supplied by Buyer, or items developed especially for Buyer under the Purchase Order.
6. ENGINEERING INFORMATION, TOOLS, AND MATERIALS: (a) Supplier will keep confidential and not use any designs, tools, patterns, drawings, materials, or any other information or equipment furnished by Buyer in the manufacture or design of any item for any other purchaser or for the manufacture of larger quantities than herein specified, except with Buyer’s prior written consent. All special dies, tools, patterns, jigs, fixtures, or any information or drawings supplied by Buyer, whether loaned to Supplier or manufactured or otherwise acquired by Supplier for the performance of the Purchase Order and specifically charged to Buyer, are the property of Buyer. Supplier will mark them for identification as Buyer may designate, and upon completion or termination of the Purchase Order, Supplier will return them to Buyer in good condition, reasonable wear only excepted, together with all spoiled and surplus materials, unless otherwise directed in writing by Buyer. Supplier agrees to replace, at its expense, all such items not so returned. Supplier will make no charge for any storage, maintenance or retention of such property of Buyer. Supplier will bear all risk of loss for all Buyer property in Supplier’s possession.
(b) If Buyer furnishes any material for fabrication hereunder, Supplier agrees (i) not to substitute any other material in such fabrication without Buyer’s written consent; (ii) that title to such material will not be affected by incorporation in or attachment to any other property; and (iii) to state and warrant on its shipper and invoice for final parts: “All material furnished by Buyer on this Purchase Order (except that which became normal industrial waste or was replaced at Supplier’s expense) has been returned in the form of parts or held as unused material for Buyer disposition.”
7. CHANGES: Buyer may at any time by written notice make changes in drawings, designs, and specifications, shipping instructions, quantities and delivery schedules. Should any such change increase or decrease the cost of, or the time required for, performance of the Purchase Order, an equitable adjustment in the price and/or delivery schedule will be made. Any claims for adjustment by Supplier must be made within thirty days from the date the change is ordered or within such additional period of time as may have been approved by Buyer. Nothing in this Section 7 will excuse Supplier from proceeding with the Purchase Order as changed.
8. CANCELLATION: Buyer reserves the right to cancel all or any part of the undelivered portion of the Purchase Order upon notice to Supplier for any reason (including without limitation, if Supplier does not make deliveries as specified or if Supplier breaches any of the terms hereof). Buyer will also have the right to terminate the Purchase Order or any part thereof in the event of the insolvency of Supplier, filing of a voluntary or involuntary petition in bankruptcy of Supplier, appointment of a receiver or trustee for Supplier, or the execution by Supplier of an assignment for the benefit of creditors.
9. COMPLIANCE WITH LAWS: Supplier warrants that its performance hereunder will be in compliance with all applicable federal and state statutes, laws, orders and regulations. This includes, without limitation, proper labeling of containers that contain toxic substances or hazardous chemicals, and provision of all applicable Material Safety Data Sheets to Buyer upon request. In addition, to the extent goods or services furnished hereunder may be used directly or indirectly (1) for performance under a government contract, and (2) is either pursuant to a subcontract exceeding $10,000.00, or purchases which may exceed $10,000.00 if there is no written subcontract, Supplier shall comply with all requests, inspections and procedures necessary to fulfill all U.S. government contracting requirements and expectations, including the requirements of 29 CFR Part 471, Appendix A to Subpart A, Notice of Employee Bargaining Rights. If the Purchase Order is a subcontract covered by executive order 11246, The Vietnam Era Veterans Readjustment Act of 1974, or the Rehabilitation Act of 1973, the following terms are hereby incorporated by reference: the equal employment opportunity clauses of Executive Order 11246, of the Vietnam Era Veterans Readjustment Act, and of the Rehabilitation Act of 1973; 41 CFR Section 60-1.7 (filing of EEO-1 reports); 41 CFR Section 60-1.40 (subcontractors with subcontracts of at least $50,000.00 and 50 employees have a written affirmative action plan). Supplier certifies that it maintains no segregated employee facilities as provided in 41 CFR Section 60-1.8. Supplier hereby represents and warrants that any “conflict materials” contained in its products (as defined in Section 1502 of the Dodd-Frank Act,) do not, and will not in the future, originate from the Democratic Republic of the Congo (DRC) or an adjoining country. Any breach of the foregoing sentence shall be considered a material breach for which: (i) Buyer may immediately terminate any pending purchase order with no cost or expense charged to Buyer; and (ii) Supplier shall indemnify Buyer from any liabilities, cost and expenses arising from such breach.
10. PRICES; PAYMENT TERMS: Supplier represents that the price or prices specified in the Purchase Order do not exceed Supplier’s current selling price for the same or substantially similar items to any other purchaser, taking into account the quantity under consideration. Payment terms shall be agreed by the parties; provided, that, in the absence of such agreement, payment terms shall be Net 30.
11. FEDERAL, STATE AND LOCAL TAXES: All prices stated herein include, unless otherwise specified, all federal, state or local taxes except sales and use taxes that may be levied or assessed as a result of the Purchase Order, or are otherwise applicable to the Purchase Order.
12. WAIVER: The failure of Buyer to enforce at any time any provision of the Purchase Order or to exercise any option herein provided or to require at any time performance by Supplier of any of the provisions hereof will not in any way be construed to be a waiver of the right of Buyer to demand compliance with each and every other provision contained in the Purchase Order, or the right of Buyer thereafter to enforce each and every provision of the Purchase Order.
13. INDEMNIFICATION: Supplier will take all precautions necessary to prevent the occurrence of any injury to persons or damage to property during the progress of any work on Buyer’s premises or elsewhere. Supplier will indemnify and hold harmless and protect Buyer and its parent, subsidiaries, affiliates and agents, against any loss, damage, liability, claims, demands and suits at law or in equity, including attorney’s fees, which may result in any way from Supplier’s actual or alleged breach of its obligations or warranties hereunder or any act or omission on the part of Supplier, its agents, employees or subcontractors. Supplier will maintain public liability, property damage and employer’s liability and compensation insurance as will protect Buyer from such losses and from any claims under any applicable worker’s compensation and occupational disease laws. Upon request from Buyer, Supplier will furnish Buyer with written evidence that Supplier has complied with the foregoing insurance requirements.
14. ACCEPTANCE: All Purchase Orders are subject to all the provisions contained herein, including any provisions set forth on the face of the Purchase Order or in a supplement to the Purchase Order submitted by Buyer. In the absence of written acceptance of such provisions by the Supplier, the shipment of any goods or the commencement of performance of any portion of the Purchase Order will constitute acceptance of all the provisions contained herein.
15. VERIFICATION: Purchaser and/or Purchaser’s customer reserves the right to verify at vendor’s facility that each item conforms to specification and/or delivery requirements. This verification does not absolve the vendor of the requirement to inspect parts to ensure that they meet purchase order specifications.
Revised: June 5, 2019.
Copyright ETS. All rights reserved.