These Purchase Order Terms and Conditions, and the Master Agreement, if any, constitutes the sole and exclusive agreement between the Parties concerning the subject matter hereof. In the event of a conflict between the terms of the Purchase Order and the Master Agreement, the Master Agreement will apply.
The prices include all charges and expenses in connection with the packaging or provision of the Goods. Invoices for all Goods will be mailed to Buyer by Seller upon delivery. All invoices shall be due thirty (30) days from the date of Buyer's receipt of a proper invoice. "Goods" means the products or services furnished by Seller to Buyer pursuant to a Purchase Order issued by Buyer to Seller.
1.In the event applicable sales, use, excise, consumption, services and other taxes of a state or political subdivision of a state of the U.S. are levied or assessed in connection with and directly related to any amounts invoiced by Seller to Buyer (collectively, "Sales Taxes"), Buyer shall be responsible for paying the Sales Taxes. Seller shall separately state all Sales Taxes on the invoice or other billing documents provided to Buyer; provided, however, that (a) nothing herein shall preclude Buyer from claiming whatever Sales Tax exemptions are applicable to amounts Seller bills Buyer, (b) Seller shall be responsible for all Sales Taxes which may accrue on all services, materials, equipment, supplies or fixtures that the Seller or its employees, agents, subcontractors or affiliates use or consume in the performance of the Purchase Order, and (c) Seller shall be responsible for any Sales Taxes and any penalties, fines or interest on Sales Taxes that Seller fails to separately state on the invoice or other billing documents provided to Buyer or fails to collect at the time of payment by Buyer of invoiced amounts (except where Buyer claims a Sales Tax exemption).
The Purchase Order or any rights or obligations thereunder may only be assigned by a Party with the prior written consent of the other Party.
The Parties may amend the Purchase Order only by written instrument executed by both Parties.
Buyer may, by written notice to Seller, terminate the whole or any part of the Purchase Order in the event of default as defined herein or as otherwise defined by law without payment of any termination charges, except that Buyer shall pay Seller for all Goods actually delivered to and accepted by Buyer prior to termination of the Purchase Order which conform to the terms of this Purchase Order. As used herein, default is defined as (a) the Seller's failure to make delivery or to perform within the time or in the manner specified herein, (b) the Seller's delivery of nonconforming goods, (c) the Seller's failure to make progress so as to endanger performance of this Purchase Order in accordance with its terms, or (d) Seller's insolvency, bankruptcy, appointment of a trustee or receiver, or assignment for benefit of creditors. In the event the Buyer terminates for default, the Buyer may procure upon such terms and in such manner as the Buyer may deem appropriate the items so terminated, and the Seller shall be liable to the Buyer for any cost for such replacement items in excess of the prices hereunder.
Except as otherwise provided herein, all Goods furnished by Seller hereunder shall become the property of the Buyer upon payment therefor. Notwithstanding the foregoing, Seller shall be responsible for and shall bear any and all risk of loss or damage to the Goods until delivery thereof in accordance with the delivery and shipping provisions of the Purchase Order. Upon such delivery, risk of loss or damage shall pass to Buyer, provided, however, that any loss or damage whenever occurring which results from Seller's improper packaging or crating shall be borne by Seller.
Seller shall be responsible for inspecting and testing the Goods as specified in the Purchase Order and as required by law, applicable codes and sound manufacturing and industry practices. Goods shall not be deemed accepted until finally inspected and examined by Buyer's representative after delivery to Buyer or upon commercial use by Buyer, whichever first occurs. The making or failure to make any survey, examination or payment, or any acceptance of the Goods shall in no way impair Buyer's right to reject or revoke acceptance of nonconforming Goods, or to avail itself of any other remedies to which Buyer may be entitled under applicable law, notwithstanding Buyer's knowledge, the substantiality, or the ease of discovery of any nonconformity.
On all Goods delivered in error, or in excess of quantity shown on the Purchase Order, and in the case of nonconforming or defective Goods, Buyer reserves the right to return such Goods at Seller's expense. Any amounts paid in advance by Buyer for such returned Goods shall be reimbursed to Buyer by Seller. Seller agrees to hold Buyer harmless of any damage, destruction or other loss of such Goods at any time prior to delivery to Buyer. No replacement or repair of nonconforming Goods rejected by Buyer may be made by Seller unless agreed to in writing by Buyer.
Seller warrants that the Goods shall be free from liens and defects in design, material, workmanship and title, and shall conform in all respects to the terms of the Purchase Order and to any applicable drawings and specifications issued for manufacture, and shall be of the best quality, if no quality is specified, and shall perform or render the service for which they are purchased. Seller further warrants that any incidental services performed by Seller hereunder will be performed in conformance with applicable specifications and standards of care and practice appropriate to the nature of such services. Seller's liability hereunder shall extend to all damages proximately caused by the breach of any of the foregoing warranties, including incidental and consequential damages. Buyer may deduct all or any part of its damages resulting from Seller's breach of this Purchaser Order from any amounts still due under this or other Purchase Orders or contracts between the Parties.
Seller shall defend, indemnify and hold Buyer and its stockholders and each of their directors, officers, and employees free and harmless from all liabilities, claims, demands, causes of action, suits, damages, costs and other expenses (including all costs hereof and attorney's fees) of every kind and character, arising in favor of Seller or any third party (including personnel furnished by Seller or any subcontractor or the like) on account of any bodily injury, death, or damage to property in any way occurring incident to, arising out of, or in connection with the Purchase Order or the Goods provided thereunder, or occurring incident to, arising out of, or in connection with the presence of personnel furnished by Seller or its subcontractors on Buyer's property, unless the same shall have been caused soley by the gross negligence or willful misconduct of Buyer or its employees.
Failure of Buyer to insist upon strict performance of any of the terms and conditions hereof, or failure or delay to exercise any rights or remedies provided herein or by law or to properly notify Seller in the event of breach, or the acceptance of, or payment for any Goods hereunder, or review of design shall not release Seller from any of the warranties or obligations set forth in the Purchase Order and shall not be deemed to waive any right of Buyer to insist upon strict performance hereof or any of its rights or remedies as to any such Goods, regardless of when shipped, received, accepted or as to any prior or subsequent default hereunder, nor shall any termination of this Purchase Order by Buyer operate as a waiver of any of the terms hereof.
On all Goods delivered in error, or in excess of quantity shown on the Purchase Order, and in the case of nonconforming or defective Goods, Buyer reserves the right to return such Goods at Seller's expense.
Time of performance is of the essence with regard to this Purhcase Order and is a substantial and material term hereof.
By acceptance of the Purchase Order and these Terms and Conditions, the Seller hereto agrees to comply with all applicable federal, state and local laws, ordinances and regulations applicable to its business and the Goods provided hereunder. The Seller further agrees to indemnify and hold the Buyer harmless from all costs and damages suffered by the Buyer as a result of the Seller' s failure to comply with the said acts, laws, ordinances, rules, orders and regulations.
The Purchase Order, including the terminology used herein and the rights of the Parties hereto, shall be construed and enforced according to the law of the State of Mississippi.
Seller is an independent contractor and is not authorized to represent, obligate, or contract for or on behalf of Buyer. Seller shall supervise the performance of its own services and shall have control of the manner and means by which services are performed, subject to compliance with the Purchase Order.
Any disputes between the Parties which arise out of the Purchase Order or the Goods subject to the Purchase Order which cannot be resolved, shall be submitted to binding arbitration under the rules and auspices of the American Arbitration Association ("AAA"). Either Party may submit the dispute to arbitration by providing the other Party with written notice of same (the " Arbitration Notice"). The arbitration shall be heard by a single arbitrator agreed to by the Parties within fifteen (15) days of receipt of the Arbitration Notice by the receiving Party. If the Parties cannot agree on a single arbitrator within the time frame set forth in the preceding sentence, then the arbitrator shall be chosen in accordance with AAA rules. The arbitration shall be held in a mutually agreed location and if the Parties cannot agree, then in the Jackson, Mississippi metropolitan area (Hinds, Rankin, and Madison Counties). The arbitrator shall enroll the prevailing Party its fees and expenses of arbitration, including reasonable attorneys' fees. The judgment of the arbitrator may be enrolled in any court of competent jurisdiction. This agreement to arbitrate shall not prevent either Party from seeking injunctive relief in a court of competent jurisdiction in appropriate circumstances.