PURCHASE ORDER TERMS AND CONDITIONS
Any acceptance of this Purchase Order is limited to acceptance of the express terms of the offer contained on the face and reverse side hereof. Any additional or different terms proposed by you, or any attempt by you to vary in any degree any of the terms herein in your acceptance, are hereby objected to and rejected, and (i) such additional or different terms shall not operate as a rejection of this offer unless such variances are with respect to terms involving the description, quantity, price or delivery schedule of the goods or services, (ii) such additional or different terms shall be deemed a material alteration hereof and (iii) this offer shall be deemed accepted by you without said additional or different terms. If a prior offer has been made by you with respect to t11e goods, our acceptance of your offer is expressly conditional on your assent to the terms contained herein. Your commencement of work on the goods subject to this Purchase Order ("the goods"), shipment of the goods or your commencement of the performance of the services to be rendered hereunder, whichever occurs first, shall be deemed an effective mode of acceptance of our offer or counteroffer, as the case may be, to purchase contained in this Purchase Order.
Prior courses of dealing and performance and trade usage and verbal agreements not reduced to a writing signed by us, to the extent they differ from, modify, add to or detract from the terms herein, shall not be binding on us. This Purchase Order embodies the entire agreement and understanding between you and us and supersedes all prior agreements and understandings relating to the subject matter hereof, whether oral or written.
We reserve the right to terminate this Purchase Order or any part hereof (i) for our sole convenience and (ii) for cause if you fail to comply with any of the terms herein, including without limitation, late deliveries or deliveries of products which are defective or which do not conform to this Purchase Order. In the event of such termination for convenience, you shall (i) immediately stop all work hereunder and shall immediately cause your suppliers or subcontractors to cease such work, (ii) be paid a reasonable termination charge consisting of a percentage of the order price reflecting the percentage of the work performed prior to the notice of termination (iii) not be paid for any work done after receipt of the notice of termination, nor for any costs incurred by your suppliers or subcontractors which you could reasonably have avoided. Any claim by you for payment of the termination charge provided for hereunder shall be deemed waived unless asserted in writing to us within fifteen (15) days after receipt by you of the notice of termination. In the event of termination for cause, we shall not be liable to you for any amount.
4. Price Warranty.
You warrant that the prices for the goods or services rendered hereunder are not less favorable than those currently extended to any other customer for the same or similar goods or services in similar quantities. In the event you reduce your price for such goods or services during the term of this Purchase Order, you agree to reduce the prices hereof correspondingly. You agree that prices shown on this Purchase Order are all inclusive, and no additional charges of any type, including, without limitation, shipping, packaging, labeling, custom duties, taxes, storage or insurance, shall be added without our express written consent.
5. Time of Performance.
Time is of the essence of this Purchase Order.
Payment for the goods or services rendered under this Purchase Order shall not constitute acceptance thereof. We shall have the right prior to acceptance to inspect any such goods and to reject any or all of said goods which are in our judgment defective or nonconforming. Goods rejected and goods supplied in excess of quantities called for herein may be returned to you at your expense and, in addition to our other rights, we may charge you all expenses of unpacking, examining, repacking and reshipping such goods and risk of loss upon reshipment to you
shall be yours. In the event we receive goods whose defects or nonconformity is not apparent on examination, we reserve the right to require replacement, as well as payment of damages. Nothing contained in this Purchase Order shall relieve you in any way from the obligation of testing, inspection and quality control.
7. Force Majeure.
We shall not be liable for, and no breach by us shall occur as a result of, failure to accept the goods or services or to perform our contractual responsibilities if such failure is due to causes beyond our reasonable control, including, without limitation, acts of God, you, or civil or military authority, judicial action, fires, floods, epidemics, quarantine restrictions, strikes, war, riots, delays in transportation, or inability due to causes beyond our reasonable control to obtain necessary labor, materials, or manufacturing facilities. You shall hold such goods at our direction and shall deliver them when we give you notice that the cause affecting the failure to perform has been removed. We shall be responsible only for your direct out-of-pocket costs in holding the goods or delaying performance of this Purchase Order at our request.
8. Risk of Loss.
Notwithstanding the use of any F.O.B. or other term on the face of this purchase order to the contrary, you assume all risk of loss of the goods until the goods are fully received at their destination.
In addition to your customary warranties, any express warranties set forth on the face hereof and any other warranties contained herein or implied by law, you expressly warrant that all of the goods or services rendered under this Purchase Order: (i) will confirm to all specifications, descriptions and samples, (ii) will be new, (iii) will be free from defects in design, material or workmanship, (iv) will conform to any statements made on the containers, labels or advertisements for such goods or services, (v) will be adequately contained, packaged, marked and labeled,
(vi) will be merchantable, (vii) will be free of any claim of any other party, including a claim of infringement (viii) will be safe and appropriate for the purpose for which goods or services of that kind are normally used. If you know or have reason to know the particular purpose for which we intend to use the goods delivered or services rendered hereunder, you warrant that such goods or services will be fit for such particular purpose. Inspection, test acceptance or use of the goods delivered or services rendered hereunder shall not affect your obligation under these warranties, and such warranties shall survive inspection, test, acceptance and use. Your warranties shall run to us, our successors, assigns and customers, and users of products sold buy us. You agree to replace or correct defects of any goods or services not conforming to the foregoing warranties promptly, without expense to us, when notified of such nonconformity by us, provided we elect to provide you with the opportunity to do so. In the event of your failure to correct defects in or replace nonconforming goods or services promptly, we, after reasonable notice to you, may make such corrections or replace such goods or services and may charge you the cost incurred by us in doing so.
Each of our rights and remedies hereunder, including without limitation the right to consequential damages, shall be cumulative and additional to any other or further rights or remedies provided in law or equity or hereunder.
Upon notice and demand from us, you agree to promptly assume full responsibility for defense of any suit or proceeding which may be brought against us or our agents, successors, assigns, subsidiaries, affiliates, customers or other vendors (collectively, the "Indemnified Parties") for alleged patent infringement, as well as for any alleged unfair competition resulting from similarity in design, trademark or appearance of goods delivered or services rendered hereunder, and you further agree to indemnify and hold harmless each Indemnified Party against any and all
loses, royalties, profits, damages and expenses (including court costs and reasonable attorneys' fees) resulting from any such suit or proceeding, including any settlement. We may be represented by and actively participate through our own counsel in any such suit or proceeding if we so desire.
You shall consider all information furnished by us to be confidential and shall not disclose any such information to any other person or use such information itself for any purpose other than performing this Purchase Order, unless you obtain written permission from us to do so. This Paragraph shall apply to drawings, specifications or other documents prepared by you for us in connection with this Purchase Order. Unless otherwise agreed in writing, no commercial, financial or teclmical information disclosed in any manner or at any time by you to us shall be deemed secret or confidential, and you shall have no rights against us with respect thereto, except such rights as may exist under patent laws.
In the event that your obligations hereunder require or contemplate performance of services by your employees, or persons under contract to you, to be done on our premises or property, or premises or property of our customers, you agree that all such work shall be done as an independent contractor and that the persons doing such work shall not be considered our employees. You shall maintain all necessary insurance coverages, including public liability and workers compensation insurance, appropriate for businesses of your size and type.
You shall defend, indemnify and hold harmless each Indemnified Party (as defined in paragraph 11) from (i) any and all damages, losses, claims, liabilities and expenses (including court costs and attorneys' fees) arising out of or resulting in any way from any defect in the goods delivered or services rendered hereunder, our termination of this Purchase Order for cause, any work described in paragraph 13 or from any other act or omission of yours or your agents, employees or subcontractors and (ii) unless otherwise provided on the face hereof, the assessment or imposition of an excise, use or other tax (however designated) upon the production, sale, delivery or use of the goods or services rendered hereunder, to the extent such assessments or impositions are required, or not forbidden by law, to be borne by you. This indemnification shall be in addition to your warranty obligations.
We shall have the right at any time to make changes in drawings, designs, specifications, materials, packaging, time and place of delivery and method of transportation. If any such changes cause an increase or decrease in the cost, or the time required for the performance, and equitable adjustment shall be made and this Purchase Order shall be modified in writing accordingly. Any such equitable adjustment requested by you shall be asserted in writing to us within fifteen (15) days after your receipt of notification of such change.
16. Governing Law; Statue of Limitations; Jurisdiction.
This Agreement shall be governed by and construed in accordance with the internal laws (as opposed to conflicts of law provisions) of the
State of Illinois. You agree to the jurisdiction of any state or federal court located within or that has jurisdiction over Chicago, Illinois. You waive any objection based on forum non conveniens and any objection to venue of any action instituted hereunder. The parties disclaim the application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement.
17. Severability; Amendment; Waiver.
Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof. No amendment, modification or waiver of any provision of this Purchase Order shall be valid unless in writing and signed by both parties. Our failure to insist on performance of any of the terms or conditions herein or to exercise any right or privilege hereunder, or our waiver of any breach hereunder, shall not thereafter waive any other terms, conditions or privileges, whether of the same or similar type nor shall any single or partial exercise of any right or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right or privilege.
18. Limitation on Dedert Corporation's Liability.
Our liability on any claim of any kind for any loss or damage arising out of or in connection with or resulting from this Purchase Order, or from the performance or breach thereof, shall in no case exceed the price allocable to the goods or services or any part thereof which gives rise to the claim.
19. Assignment; Setoff.
No right or interest hereunder shall be assigned by you, and no delegation of any obligation owed, or of the performance of any obligation, by you shall be made, without our prior written consent. All claims for money due or to become due from us shall be subject to deduction or setoff by us by reason of any counterclaim or liability arising out of this or any other transaction with you.