1. DEFINITION – The terms “item or items” as used herein mean the goods, wares or merchandise which are the subject of this Purchase Order.
2. AGREEMENT – This Purchase Order is the complete agreement between the parties. No modification of this Purchase Order shall be effective nor shall different terms be imposed by the printed terms and conditions of any acknowledgement or other form submitted by Vendor unless agreed to in writing by an authorized representative of Purchaser specifically stating that such modification or different term unless amendment to this Purchase Order. Acknowledgement of this Purchase Order by vendor or shipment by Vendor or any part of the materials or performance by Vendor or any part of the services ordered hereunder constitutes acceptance of all terms and conditions of this Purchase Order.
3. ASSIGNMENT/SUBCONTRACTING – The Vendor shall not assign this Order, any rights under this Order or any monies due or to become due hereunder nor delegate or subcontract any obligations or work hereunder without the prior written consent of the Purchaser. No purported assignment nor delegation by the Vendor shall be binding on the Purchaser without such consent.
4. CASH DISCOUNTS – Unless otherwise agreed, the cash discount period will date from the Invoice date or the date of shipment, whichever is later.
5. COMPLIANCE WITH LAWS – The Vendor shall comply with all applicable State, Federal and local laws, rules and regulations, including but not limited to the Occupational Safety and Health Act of 1970, the Fair Labor Standards Act of 1938s.
6. DELIVERY – If any delivery is made which is not in all respects in accordance with the provisions of this Purchase Order (including time of delivery), Purchaser reserves the right to reject such delivery and, in addition, if Purchaser so elects, Purchaser may treat this Purchase Order as repudiated by Vendor and cancel any outstanding deliveries hereunder, without prejudice to Purchaser’s rights to claim damages or to enforce any other remedy provided by law. All expenses and storage, if any, resulting there from shall be for Vendor’s account.
7. INSPECTION – Items are purchased to receipt at destination unless otherwise stated. The Purchaser, in addition to any other rights which it may have under the warranties or otherwise, and notwithstanding payment, shall have the right to reject and return all items not conforming to the Purchaser’s specification, or if not so specified, which do not conform to standard specifications. Any rejected items will be returned to Vendor at Vendor’s expense at invoice price plus actual costs paid by the Purchaser (including cost for handling, packing, excise and transportation taxes, transportation and cartage). Replacement of items shall not be made without written authority of Purchaser.
8. WARRANTIES – The Vendor warrants that any item or items supplied hereunder shall conform to the generally recognized manufacturing and safety standards of the Vendor’s industry in the United States and shall meet or exceed the Vendor’s specifications on performance as detailed in the Vendor’s brochures, sales literature and other specifications as may be available to the Purchaser. Vendor will perform all services to the reasonable satisfaction of Purchaser. In addition to any other express or implied warranties, the Vendor warrants that the items furnished pursuant to this Order will be: (a) free from defects in title, workmanship and material; (b) free from defects in design except to the extent that such items comply with detailed designs provided by the Purchaser; (c) of merchantable quality and suitable for the purposes, if any, which are stated on this Order.
9. INSURANCE – Vendor shall not insure the materials for Purchaser’s account unless the terms of this Purchase Order or separately written instructions from Purchaser require Vendor so to insure.
10. PACKING – All items shall be packed to meet the Carrier’s requirements and to assure lowest transportation rates consistent with adequate protection against loss or damage. Charges for packing or cartage will not be allowed unless shown on the Purchase Order.
11. PATENTS – The Vendor shall defend, indemnify and hold and save the Purchaser, its officers, agents, servants, employees and users of its items harmless from any claim for infringement of Letters, Patent or Trademarks with respect to any item furnished under this Purchase Order.
12. PRICES – This Purchase Order must not be filled at higher prices than specified herein. If price is omitted the materials shall be billed at price last quoted to or paid by Purchaser, or at the prevailing market price on date of shipment, whichever is lower.
13. REPAIRS – If repairs are ordered hereunder, after inspection and rejection, the following conditions apply:
a) Repairs are to be completed (and materials which are taken off Purchaser’s premises are to be returned to Purchaser) not later than the delivery date shown on the face hereof.
b) Payment shall be made within thirty days after completion of repairs to Purchaser’s satisfaction, and applicable invoice discounts shall be taken.
14. SHIPPING – Items sold F.O.B. shipping point shall be shipped transportation collect. (When prepaid transportation is requested by Purchaser, such prepayment shall be itemized separately on the invoice, and evidenced by substantiating documents.) When shipments are made F.O.B. destination, transportation charges shall be prepaid.
15. SPECIAL TOOLS – Special tools, used by the vendor in making Purchaser’s items, title to which shall be and remain in Purchaser, must be maintained in good working condition at all times, used exclusively for manufacturing items for the Purchaser fully protected by Vendor against loss or damage, and subject to removal by the Purchaser at any time upon demand, unless otherwise agreed.
16. UNITED STATES GOVERNMENT CONTRACTS – If the materials covered by this Purchase Order are to be used in fulfilling a contract with the United States Government, the Vendor shall comply with applicable requirements of such contract with respect to secrecy, employment of aliens, use of convict labor, discrimination, plant protection, sabotage, espionage, renegotiation, Fair Labor Standards Act, Walsh-Healey Act and other applicable provisions.
17. PROPRIETARY INFORMATION/CONFIDENTIALITY- As more fully set forth in Vendor’s Agreement to Maintain Confidentiality of Micrex Information, the terms of which are incorporated herein by reference, all information obtained by the Vendor from the Purchaser in connection with this Order and which is identified as proprietary, including, but not limited to, any specifications, drawings, blueprints and software programs, shall remain the property of the Purchaser, shall be used by the Vendor only to the extent necessary for performance of this Order and shall not be disclosed to any third parties without prior written consent of the Purchaser.
18. INDEMNITY- The Vendor shall indemnify, defend and hold the Purchaser, its directors, officers, employees, agents harmless from any loss, expense, claim or damage including reasonable defense costs, arising from or resulting in any way from any defect or alleged defect in the items purchased hereunder, or from any act or omission of Vendor, its agents, employees or subcontractors, in connection with the fulfillment of the order or otherwise. The indemnification shall be in addition to the warranty obligations of the Seller. The Vendor further agrees to defend, indemnify and hold the Buyer and its customers harmless from any loss or damage that may be sustained by the Buyer, by reason of the Vendor’s failure to comply with any federal, state, county or local laws, ordinance, regulations and codes.
19. VENDOR AS AN INDEPENDENT CONTRACTOR – The Vendor shall perform the obligations of this Order as an independent contractor and under no circumstances shall it be considered an agent or employee of the Purchaser. The Terms and Conditions of this Order shall not, in any way, be construed as to create a partnership or any other kind of joint undertaking or venture between the parties hereto.
20. WAIVER – The failure of the Purchaser to insist in any instance upon the strict performance of any provision of this Order, or to exercise any right or privilege granted to the Purchaser hereunder shall not constitute or be construed as a waiver of any such provision or right and the same shall continue in force.
21. FORCE MAJEURE – In the event that either party is unable to perform its obligations under this agreement as a result of a force majeure, neither party shall be liable to the other for direct or consequential damages resulting from lack of performance. “force majeure” shall mean fire, earthquake, flood, act of God, strikes, work stoppages, or other labor disturbances, riots or civil commotions, litigation, war or other act of any foreign nation, power of government, or governmental agency or authority, or any other cause like or unlike any cause above mentioned which is beyond the control of either party.
22. SEVERABILITY – The terms of this agreement are severable such that if any term or provision is declared by a court of competent jurisdiction to be illegal, void, or unenforceable, the remainder of the provisions shall continue to be valid and enforceable.
23. LAW OF THE CONTRACT – The laws of the Commonwealth of Massachusetts shall govern the validity, construction and effect of this agreement. All lawsuits arising out of this agreement, wherever derived, shall be resolved in Suffolk County in the Commonwealth of Massachusetts.