Terms & Conditions of Purchasing
1. GENERAL INSTRUCTIONS
- Our Order Number appears on all packages, correspondence, invoices, packing slips, and shipping papers for all items.
- If this order cannot be filled according to our specifications, price, and delivery instructions, advise at once.
- Mail Bill of Lading or shipping Notice to Designation on day shipment is
- Submit one copy of Invoice to Buyer at address on form of purchase order.
- If this order is not shipped to you, the name of the shipper must appear on your invoice.
Buyer shall not be billed at price higher than stated on this Purchase Order unless authorized in writing by Buyer’s authorized representative. Seller represents that the prices charged herein are the lowest prices charged by the Seller to other buyers who compete with Buyer for goods of like grade or quality and upon conditions similar to those specified in the Purchase Order and that the price herein complies with the applicable government regulations in effect at the time of quotation, sale, or delivery. Price reductions made in items (The term “item” as used in this Purchase Order includes construction work, engineering and design services, and research and development work as well as goods sold) covered by this Purchase Order subsequent to its placement, but prior to payment thereof, will be applicable to it. Seller shall bear the cost of cartage, boxing, or storing of the items covered by this Purchase Order.
Buyer shall have the right at any time to make written changes in this Purchase Order. No change shall be effective unless Buyer authorizes it in writing. Seller shall in all events proceed diligently to supply or perform under the Purchase Order as changed.
Time is of the essence in delivery and performance of services. Buyer may from time to time change or temporarily suspend delivery of service schedules. Late delivery performance may result in termination for cause (complete or partial), resorting to another source, or variance of delivery terms hereunder, at the option of the Buyer. Seller shall be liable for any loss sustained or costs incurred by the Buyer as a result of late delivery or failure to timely perform services hereunder.
Prior to payment or acceptance of any goods tendered or delivered or identified to the contract or any services performed hereunder, Buyer shall have the right to inspect such goods or services at any reasonable place and time and in any reasonable manner. When the Seller is required or authorized to send the goods to the Buyer, the inspection may be after their arrival. All such goods, items or services must conform to the specifications, instructions, drawings, and data set forth on the face hereof or incorporated herein by reference, and/or to any samples, whether furnished by Seller of Buyer, as well as all Seller’s warranties (expressed or implied) and the Buyer may reject or refuse acceptance of any items or services which do not conform. In the case of nonperishable goods, buyer shall notify Seller within a commercially reasonable time after delivery or tender of delivery of the goods or services and may hold the rejected goods for Seller or return the rejected goods to the Seller at Seller’s expense and risk. Buyer shall not be obligated to accept excess or partial shipments. Such shipments in whole or in part may be returned to Seller at Seller’s expense and risk. Payment for any goods or services purchased hereunder shall not be deemed an acceptance thereof.
Seller expressly warrants that the items covered hereunder shall be free of defects in material and workmanship and strictly conform to specifications, instructions, drawings, data, and samples and, if Seller’s design, will be free of design defects and shall be fit for the use intended by Buyer. This warranty is in addition to all express, implied, or statutory warranties. Neither inspection, acceptance, nor payment by Buyer shall constitute a waiver of any breach of any warranty. Customers and subsequent owners to the Buyer shall be covered by all the aforementioned warranties. Seller agrees, at its expense and at Buyer’s option, to defend or assist in the defense of any action against the Buyer, which action in whole or in part, whether by way of claim, counterclaim, or defense, is based upon an alleged breach of a Seller’s warranties. Seller agrees to indemnify, hold harmless and defend Buyer, its customers, and subsequent owners from all liability loss, cost, and expenses, including reasonable attorney’s fees, resulting from breach of any said warranties. Notice of any breach of warranty shall be given by Buyer to Seller within a commercially reasonable time after discovery thereof by Buyer. All warranties shall be construed as conditions as well as promises and shall not be deemed to be exclusive.
Seller shall not disclose to others information supplied by Buyer’s prior written consent and such information shall remain Buyer’s property. Such information shall not be reproduced without Buyer’s prior written consent and shall be returned to Buyer upon completion of its obligation under this Purchase Order or upon demand. Any information Seller shall disclose to Buyer shall be deemed to have been disclosed as part of the consideration for this Purchase Order, and except for patent infringement, Seller shall have no claim against Buyer for use thereof. Buyer does not grant indemnity to Seller for infringement of any patent, trademark, copyright, or data rights.
8. TITLE AND RISK OF LOSS
Title and risk of loss pass to Buyer at the FOB point designated on the face of the Purchase Order. Cost of all returns shipments for whatever reason returned, shall be done by Seller with title and risk of loss passing at Buyer’s Plan, unless otherwise specified by Buyer at the time.
9. PATENT, TRADE SECRET, TRADEMARK, COPYRIGHT, ETC.
The Seller agrees as to any goods or items furnished hereunder that are not manufactured or processed in accordance with detailed design specifications supplied solely by Buyer to defend, indemnify, and hold harmless as its own expense, any suit or legal proceeding instituted against Buyer (including its officers, employees, representative, successors, and assigns or any of them) and to pay the damage and cost awarded therein against Buyer, insofar as the same are based on a claim that the equipment or items furnished hereunder or any part thereof in itself constitutes an infringement of any foreign or United States patent or which itself inherently carries out an infringing process in the use or sale items, or an infringement or violation of trade secret, trademark, copyright, or proprietary rights of any third party provided Buyer gives Seller prompt written notice of such suit or proceeding also gives Seller all necessary authority, information, and reasonable assistance to enable Seller, at Seller’s option, to settle or defend the same. In the event use of said equipment or items or any part thereof is enjoined, Buyer, at its election, may require Seller, at Seller’s expense, to
- Either procure within 30 days for Seller the right to continue using said items or equipment or part, or
- Modify same so it becomes non-infringing, or
- Replace it with non-infringing equipment or part, or
- Remove the item or equipment and refund that portion of the purchase price paid hereunder therefore by Buyer for the item or equipment less 10% thereof each 12 months following the date of its acceptance.
The foregoing is in addition to any other warranty, obligation, or liability for patent infringement that may arise pursuant to the provision of the Uniform Commercial Code of Pennsylvania.
10. OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970
Seller expressly warrants that the items or goods or services furnished hereunder are sold or furnished in full compliance with the Occupational Safety and Health Act of 1970, as amended and all standards, rules, regulations, and orders issued pursuant thereto, and all other Federal and state occupational safety and health statutes, the provisions of which are substantially the same as those found in the Occupational Safety and Health Act of 1970 or administered by any state pursuant to the Act. All sales of hazardous material are subject to the communication regulations of the Occupational Safety and Health Administration and any similar state or local laws or regulations.
11. COMPLIANCE WITH LAWS
On request, Seller shall furnish Buyer certificates of compliance with all applicable laws, orders, and regulations of the Federal or any state or municipal government or agency thereof which apply to this Purchase Order, Seller agrees to exonerate and hold Buyer harmless from and against any and all cost, damages, and expenses, including necessary attorney’s fees, suffered or occasioned by Buyer directly through any failure of Seller to comply with any such applicable law, regulation, or order. Seller shall, at time of delivery or invoicing, certify that goods or items sold hereunder were manufactured or produced in full compliance with the Fair Labor Standards Act of 1938, as amended to the date of certification, and all applicable United States Department of Labor Regulations promulgated thereunder.
Buyer shall have the right to terminate this Purchase Order or any part thereof at any time by written or telegraphic notice or verbal notice confirmed in writing.
- Without Cause—Upon receipt of notice of termination, Seller shall, unless notified otherwise, immediately discontinue the work, cease delivery and ordering of materials and make reasonable efforts to cancel existing orders, contracts, and subcontracts upon terms satisfactory to Buyer. Seller shall after notice of termination, continue to perform such work as necessary to preserve and protect work in progress., including equipment, material, and facilities constructed, delivered, or in transit, until relinquishing possession and control of the work in progress as provided in the notice of termination. Upon compliance with the notice of termination, Seller shall be entitled to receive as compensation such sum as may be necessary to compensate Seller for its costs, expenditures, commitment, and work performed in connection with this Purchase Order, together with a reasonable profit thereon, less the payments and credits that Seller previously received from Buyer, such sum generally to be that portion of the total agreed-upon price that equals the proportion of the work completed to the total work called for under this Purchase Order, as Buyer reasonably judges. Any termination claim must be submitted to Buyer with thirty (30) days after the defective date of termination. The provisions of this subparagraph shall not limit or affect the right of Buyer to terminate this Purchase Order for cause and shall not apply to a termination with cause.
- For Cause—if Seller fails to make any delivery in accordance with the agreed delivery date or schedule or otherwise fails to observe or comply with any of the other instructions, terms, conditions, or warranties applicable to this Purchase Order, or fails to make progress so as to endanger performance of this Purchase Order, or in the event of any proceedings by or against Seller in bankruptcy or insolvency, or appointment of a receiver or trustee, or an assignment for the benefit of creditors, Buyer may, in addition to any other right or remedy provided by this Purchase Order or by law, terminate all or any part of this Purchase Order without any liability by Buyer to Seller on account thereof. Buyer may require a financial statement from Seller at any time during the term of this Purchase Order for the purpose of determining Seller’s financial responsibility. In the event of termination for cause, Buyer may produce or purchase or otherwise acquire supplies or service elsewhere on such terms or in such manner as Buyer may deem appropriate and Seller shall be liable to Buyer for any excess cost or other expense incurred by Buyer.
13. TAXES AND OTHER EXACTION
Seller agrees to pay all taxes or other exactions connected with the manufacture or sale of the items furnished hereunder or any component part thereof, or on any process or labor involved therein, or on any services to be rendered by Seller, except those which Buyer specifically agrees to or is by law required to pay. Any taxes to be paid by Buyer shall be separately stated in the invoice. Prices shall not include any taxes for which Seller can obtain, or Buyer can furnish, exemption.
The remedies reserved to Buyer herein, except where expressly stated to be exclusive, shall be cumulative and in addition to any other or further remedies provided by law. No waiver of any breach of these provisions shall be deemed to constitute a waiver of any other breach.
Neither this Purchase order nor any rights or obligations herein may be assigned by Seller nor may Seller delegate the performance of any of its duties hereunder without, in either case, Buyer’s prior written consent. The terms and conditions of this Purchase Order shall bind any permitted successors and assigns of Seller. Any consent by Buyer to assignment shall not be deemed to waive Buyer’s right to recoup and/or set off of claims arising out of this or any other transactions with Seller, its divisions, affiliates, or subsidiaries or to adjust matters with Seller without notice to permitted successors and assigns.
16. FORCE MAJEURE
Either party to this Purchase Order shall be free from liability for failing to perform hereunder if such failure is caused due to acts of God, labor difficulties, fires, and other causes beyond the reasonable control of the affected party. In the event that Seller is unable to perform for such reason beyond its reasonable control, Buyer shall have the right to either continue the delivery dates until Seller is able to perform or terminate this Purchase Order without further obligation.
Seller agrees to indemnify and hold Buyer harmless from any and all claims, loss or damage of any kind whatsoever, including consequential damages, along with all costs including reasonable attorney’s fees connected therein, brought by or on behalf of any person or persons arising out of, directly or indirectly, the performance of this contract, including but not limited to claims or actions made or brought by or on behalf or Seller’s employees, agents, representatives or assigns or subcontractors or their employees, agents, representatives, or assigns regardless of Buyer’s negligence.
This Agreement and the respective rights and obligations of the parties hereto shall be governed by and determined in accordance with the laws of the Commonwealth of Pennsylvania, without giving effect to its conflict of laws principles or rules. Each party hereby consents to the exclusive jurisdiction of any state or Federal court located within the Commonwealth of Pennsylvania and irrevocably agrees that all actions or proceedings relating to this Agreement shall be litigated in such courts and each party waives any objection which it may have based on lack of personal jurisdiction, improper venue or forum non convenient to the conduct of any proceeding in any such court and waives personal service of any and all process upon them and consents that all such service of process be made by mail or messenger directed to Tiger Optics, LLC at 250 Titus Avenue, Suite B, Warrington, PA, 18976, Attention: Erika Coyne. Nothing contained herein shall affect the non-breaching party’s right to serve legal process in any other manner permitted by law or affect each party’s right to bring any action or proceeding against the other party in the courts of any other jurisdiction.
Without limiting the foregoing, Seller agrees to carry and maintain comprehensive general liability, including contractual liability, automatic bodily injury and property damage, workmen’s compensation, employer’s liability and occupational disease insurance with coverage and form satisfactory to Buyer prior to commencement of any service to be performed hereunder. Seller agrees to furnish to Buyer certificates of such insurance which stipulate that no less than ten (10) days’ notice will be given to Buyer prior to termination or reduction.
20. EQUAL EMPLOYMENT CAUSE
Seller guarantees compliance with the provision of Executive Order 11246 pertaining to nondiscrimination in employment. Under Section 203, Paragraphs A and B, of the Executive Order, Seller agrees to file compliance reports with the appropriate Federal agency, and on request, to supply Buyer with copies of the compliance reports and any other information necessary to demonstrate compliance. Seller also guarantees compliance with Section 503 of the Rehabilitation Act of 1973 relating to employment of the handicapped, and the rules, regulations, and relevant orders of the Secretary of Labor issued pursuant to the Act. Seller shall also comply with The Vietnam Era Veterans Readjustment Act of 1974, as amended, and if applicable, Seller shall take all required affirmative action on behalf of disabled veterans and veterans of the Vietnam Era to employ and advance in employment these qualified veterans.
21. ENTIRE CONTRACT
This Purchase Order and all exhibits or attachments hereto constitute the entire agreement between Buyer and Seller and may not be amended unless in writing signed by the authorized representative of Buyer and Seller.
22. SELLER’S ACKNOWLEDGEMENT
No conditions stated in letters of acknowledgement submitted by Seller shall be binding on Buyer unless expressly assented to in writing by an authorized representative of Buyer.
23. SELLER QUALITY SCORING
Tiger Optics will score Suppliers based on Quality, Delivery, Price and Service. Suppliers will be rated on a scale of 1 to 3, with 3 being the best. Suppliers that fail to perform in these areas may receive Corrective Actions and may be considered for probation or removal from ABC Company’s Approved Supplier List.