TEMCO METAL PRODUCTS CO.
PURCHASE ORDER TERMS AND CONDITIONS Entire Agreement. Upon acceptance
by Seller, this purchase order (which specifically includes these terms and
conditions and any specifications, samples, or descriptions of the goods or
services (the “goods” and the “services”) that are either expressly
incorporated herein by the parties in writing or relied upon by Temco Metal
Products Co. (“Buyer”)) shall constitute the entire agreement (“Agreement”)
between Buyer and Seller with respect to the goods and the services subject
to this purchase order and shall supersede all prior and contemporaneous oral
or written agreements, understandings, and communications between Buyer and
Seller with respect there to. Acceptance of Purchase Order. This purchase
order is an offer, not an acceptance. Buyer expressly limits acceptance of
this purchase order only to the terms and conditions of this purchase order,
and hereby timely objects to any inconsistent, additional or different terms
or conditions in any prior or subsequent invoice, acknowledgment,
confirmation or other document. Seller shall be deemed to have accepted the
terms and conditions of this purchase order (a) even if Seller’s acceptance
purports to make acceptance conditional on acceptance of inconsistent,
additional or different terms or conditions to this purchase order, (b) when
acknowledged by Seller in writing, or (c) if Seller makes any shipment or
performance in response to or in anticipation of this purchase order, unless
preceded by a separate writing modifying these terms signed by Buyer. Any
term of any invoice issued by or on behalf of Seller which is inconsistent
with a terms or condition of this purchase order is not binding on Buyer and
will not apply to the sale or shipment of any goods, services or other items
by Seller unless Buyer has expressly agreed to such inconsistent term or
condition in writing. Delivery. The price of all
goods and services described in this purchase order shall be F.O.B. Buyer’s
location(s) unless otherwise specified. Time is of the essence. Delivery of
goods or other performance must be completed within the time limits specified
in this purchase order. If necessary, Seller shall, at no additional cost to
Buyer, employ accelerated measures (such as shipping via air and employing
overtime labor) to meet the specified delivery schedule. Seller agrees to
notify Buyer immediately if Seller is unable to deliver any part or all of
the goods or services or is unable to meet the specified delivery schedule.
Delivery shall be deemed to be complete only when the goods and services have
been actually received at their destination by Buyer. If delivery or
performance is not timely completed, Buyer may, at its election, refuse any
or all of the goods and services and cancel all or any part of this
Agreement. In addition to any other remedies provided by law or this purchase
order, Seller shall pay to Buyer all of Buyer’s incidental and consequential
costs and damages incurred by Buyer as a result of Seller’s failure to
deliver the goods or services within the time limits specified in this
purchaser order. Any provisions herein for delivery of goods or the rendering
of services by installment shall not be construed as making the obligations
of Seller severable. Seller shall not be excused by unexpected difficulty or
commercial impracticality of any degree. Acceptance of Goods and Services
by Buyer. Buyer shall be deemed to have accepted the
goods and services on the date that the goods and services have been received
by Buyer and have performed in accordance with all specifications and
warranties (the “date of acceptance”). The risk of loss or damage shall
remain with Seller until the date of acceptance. Buyer shall have the right
to inspect and test the goods and services and reject any nonconforming goods
and services. In addition to any other remedies under law, Buyer shall have
the right to reject and refuse acceptance, require prompt correction or cure,
or accept any nonconforming goods or services with an equitable adjustment in
price. Buyer may return nonconforming goods to Seller at Seller’s risk and
expense, including transportation and handling costs. The right to test and
inspect, whether exercised or not, shall not affect Buyer’s right to revoke
acceptance or pursue other remedies if nonconformities are later discovered,
even if such nonconformity could have been discovered upon inspection.
Payment for goods or services shall not constitute acceptance. Acceptance shall not relieve Seller from
its responsibility under any warranty. Warranties. In addition to
all other express and implied warranties, Seller expressly warrants that all
goods and services shall: (a) be free from all liens, charges, encumbrances,
or claims of any person; (b) be of merchantable quality, of good material and
workmanship, and free from defects in design, materials and workmanship for a
period that begins on the date of delivery and expires on the later of (i)
the first anniversary of the date of acceptance or (ii) the expiration of
Seller’s warranty period; (c) be fit for the purposes for which goods of that
type are ordinarily used as well as for any purposes Seller has made known to
the public or to Buyer or that Buyer has made known to Seller; (d) conform
strictly and in every respect to the specifications and descriptions of this
purchase order and any sample, quote, description, specification, drawing,
writing or proposal provided to Buyer by Seller; (e) be produced and
performed in compliance with and conform in all respects to all applicable
laws, regulations, standards, rules and orders of all applicable federal,
state, and local governmental authorities, whether domestic or foreign,
including without limitation those governing safety, health, labor, hazardous
substances and sanitation: and (f) not infringe any patent, copyright,
trademark or proprietary rights of any third party. Seller hereby assigns to Buyer the benefits
of all warranties given by any person or entity from whom Seller purchased
any goods or services. Without limiting any other rights or remedies
available to Buyer under this Agreement or otherwise, if the goods or
services are defective in any way or fail to conform in all respects to any
warranty, Seller shall, at its own expense, within a reasonable time after
notice, repair, replace or correct any defective or nonconforming goods or
services, provided, however, that Seller is notified of the defect or
nonconformity within a period of one year after the date Buyer discovers the
defect. Whether or not Seller repairs, replaces or corrects any defects
within a reasonable time, Seller shall reimburse Buyer for reasonable
expenses incurred in connection with such failure and in enforcing its
warranty rights (including without limitation its reasonable attorney fees at
trial and on appeal), in addition to any other remedies Buyer may have. Intellectual Property. The parties
expressly acknowledge and agree that at no time shall either party acquire or
retain, or appropriate for its own use, any right, title or interest in or to
any of the other party’s intellectual property. Neither party shall take any
action that might impair in any way any right, title or interest of the other party in or to any of the parties’
respective intellectual property. |
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