1. Acceptance of Order
Acceptance is limited to the terms stated herein, and any additional different terms proposed by Seller are rejected unless expressly assented to in writing by Buyer or as otherwise set out herein. Delivery of materials or other goods and performance of services in conformity herewith prior to acceptance hereof and use of such goods and acceptance of such services by Buyer shall constitute acceptance of the terms stated herein for this order only. References herein to this order shall, unless the context otherwise requires, include any contract resulting herefrom.
No modification of this order shall be effective without Buyer’s consent. No course of prior dealings, no usage of the trade and the course of performance shall be used to modify, supplement, or explain any terms used in this order.
Buyer reserves the right to terminate this order at any time with respect to undelivered goods or unperformed services by written or electronic notice or oral notice confirmed in writing.
Time is of the essence in this order and if delivery of conforming goods or performance of conforming services is not completed by the time(s) promised, Buyer reserves the right, in addition to its other rights and remedies, to cancel this order, to reject such goods or services in whole or in part upon reasonable notice to Seller and/or to purchase substitute goods or services elsewhere and charge Seller with any loss incurred. Any provisions herein for delivery of goods or performance of services by installments shall not be construed as making the obligations of Seller severable. Shipments sent C.O.D. will not be accepted.
Buyer shall not be billed at prices higher than stated herein unless authorized in writing by Buyer. Seller represents that the prices charged for the goods or services covered by this order are the lowest prices charged by Seller and that such prices comply with all applicable laws and government regulations in effect at time of quotations, sale, delivery and performance. Seller agrees to notify Buyer of any price reduction made in goods or services covered by this order subsequent to the date hereof and prior to delivery or performance and agrees that any such reduction will be applicable to this order.
Unless otherwise specified in the Contract, failure of either party to perform hereunder, in whole or in part, occasioned by acts of God or the public enemy, fire, explosion, perils of the sea, flood, drought, war, riot, sabotage, accident, embargo, quarantine restrictions, strike, unusually severe weather conditions, government priority, requisition or allocation, or any circumstances of like or different character beyond the reasonable control of the party so failing to perform, or by interruption or delay in transportation, labor trouble from whatever cause arising and whether or not the demands of the employees involved are reasonable and within affected party’s power to concede, or compliance with any order to request of any governmental officer, department, agency or committee, shall not subject said party to any liability to the other party. At buyer’s option, the period specified for delivery of goods or performance served hereunder shall be extended by the period of delay occasioned by any such circumstance, and deliveries or services omitted (or portions thereof) shall be made or performed during such extension, or the total ordered hereunder shall be reduced by that portion of the goods or services which Seller is unable to deliver. The provisions of this paragraph shall be effective notwithstanding that such circumstance shall have been operative at the date of this order.
In addition to all warranties established by law, Seller hereby warrants and agrees that:
- All goods and services covered by this order shall conform to the specifications, drawings, samples or other descriptions furnished or adopted by Buyer, and shall be merchantable, fit for the purpose intended, of best
quality and workmanship and free from all defects. Buyers shall have the right of inspections and approval, and may, in addition to its other rights and remedies, reject and return goods or require performance of services at
Seller’s expense if defective or not in compliance with Buyer’s specifications. Defects shall not be deemed waived by Buyer’s failure to notify Seller upon receipt of goods or completion of services or by payment of invoice.
- No disclosure, description or other communication of any sort shall be made by Seller to any third person of the fact of Buyer’s purchase of goods or services hereunder, or of the details and characteristics thereof, without Buyers prior written consent. Anything furnished to Seller by Buyer pursuant to this order, including without limitation samples, drawings, patterns and materials shall remain the property of Buyer, shall be held at Seller’s risk and shall be returned upon completion of the work, and no disclosure or reproduction thereof in any form shall be made without Buyer’s prior consent in writing.
- All goods delivered pursuant to this order and manner of delivery thereof shall conform to standards established for such goods and delivery in accordance with any applicable federal, state, provincial, or local laws or regulations.
- The use or sale of any goods delivered hereunder, or any part thereof, except goods produced to Buyer’s drawings or specifications, does not infringe and adverse valid existing patent.
- The foregoing warranties shall survive acceptance of goods and performance of services hereunder, including construction projects.
8. Loss in Transit and Environmental Responsibility
Title and risk of loss in transit shall not pass to Buyer until delivery to Buyer at the destination identified in the purchase order in accordance with all applicable federal, state, provincial or local laws or regulations, including but not limited to U.S. Department of Transportation and U.S. Environmental Protection Agency regulations for hazardous substances, is completed. Buyer shall not be liable for any discharge, spill or other incident, including but not limited to expenses for any clean-up costs, involving any materials transported hereunder until completion of such delivery.