1. Contract. The first page of this equipment purchase order (“Order”) and any similarly formatted following page marked “Front Side” are referred to herein as the “front side” or “front” of this Order. This Order constitutes Buyer’s offer to purchase from Seller, and not an acceptance of any offer to sell, the equipment (“Equipment”), which shall include all documentation necessary or useful to use the Equipment as intended by Buyer, and which may include certain software (“Software”), all described on the front side of this Order (collectivity, “Products”). Failure to object to this Order within five (5) days of receipt of this Order or shipment of any Product (whether or not Seller has acknowledged this Order), whichever comes first shall constitute Seller’s acceptance of this Order in its entirety. ANY ACCEPTANCE OF THIS ORDER IS LIMITED TO AND CONDITIONED UPON ACCEPTANCE OF THE EXPRESS TERMS AND CONDITIONS SET FORTH HEREIN (INCLUDING WITHOUT LIMITATION THOSE SET FORTH ON THE FRONT HEREOF) AND, UPON ACCEPTANCE, THIS ORDER BECOMES A BINDING CONTRACT SUBJECT TO ALL SUCH TERMS AND CONDITIONS. Absent a specific written agreement between Buyer and Seller or as otherwise provided herein, no revision, addition, alteration or deletion may be made to this Order, and any inconsistent or conflicting terms or conditions on Seller’s acceptance, billing or any other forms are hereby objected to and rejected by Buyer and shall not be effective. If the parties have entered into a signed written agreement relating to the subject matter of this Order, and there is a conflict between the signed written agreement and this Order, the terms and conditions of the signed written agreement shall control.
2. Prices; Taxes. This Order shall not be filled at higher prices than specified herein. If a price is omitted, Products shall be billed at the price last quoted to Buyer, last paid by Buyer or at the prevailing market price, whichever is lower. Seller represents to Buyer that the price charged for the Products is the lowest price charged by Seller to buyers of a class similar to Buyer purchasing in quantities comparable to those specified in this Order (“Other Buyers”). Any general price reduction made by Seller or lower price given to Other Buyers with respect to the Products after the placement of this Order but prior to Buyer’s acceptance of such Products shall apply to the Products ordered hereunder, and Seller shall promptly inform Buyer of such price reduction and grant Buyer a corresponding price reduction or account credit for each affected unit of the Products. Such lower price shall also apply to future orders of such Products. Unless otherwise provided herein, all prices shown on this Order are deemed to include all taxes not expressly imposed by law on Buyer.
3. Invoices; Payment. The invoice issued by Seller with respect to this Order shall include this Order’s number. Payment terms shall be as set forth on the front of this Order and shall run from, and an applicable prompt payment discount shall be calculated from, the last to occur: (i) the scheduled delivery date; (ii) the date of actual delivery; or (iii) the date an original invoice containing this Order number is received by Buyer. Payment is made when Buyer’s check is mailed or when an electronic payment is initiated. Seller agrees to invoice Buyer no later than one-hundred eighty (180) days after shipment of Products under this Order. Buyer shall not be obligated to make payment against invoices submitted after such period. Buyer may set off any claim or charge it may have against Seller against any amount payable under this Order.
4. Packaging; Shipping; Delivery.
a. Packaging. All shipments will be packed in a manner that follows good commercial practice, is in compliance with all applicable transportation regulations, is adequate to ensure safe and undamaged arrival, assures the lowest transportation costs and meets carrier’s tariff requirements. Buyer is not responsible for any charge for packing, boxing, storage or cartage unless otherwise specified on the face of the purchase order. Any expense incurred by Buyer as a result of improper preservation, packing, packaging or marking shall be reimbursed by Seller.
b. Shipping. The terms, choice of carrier and routing of all shipments shall be as specified on the front of this Order, or as Buyer otherwise directs. Buyer may revise the shipping instructions as to any unshipped Products.
c. Delivery Schedules. Delivery schedules specified by Buyer in connection with this Order shall be binding upon Seller. Time is of the essence with respect to the delivery of Products, and Seller shall use its best efforts, including overtime and premium shipment at Seller’s expense, to meet the scheduled delivery date, provided, however, that the failure of such efforts to achieve timely delivery of conforming Products shall not relieve Seller of liability for such failure. If, despite such efforts, Seller anticipates a delay or an actual delay occurs, Seller shall immediately notify Buyer, and upon receiving such a report, Buyer may, at its sole discretion, either approve a revised schedule or by written notice terminate this Order in whole or in part without cost, except for Products delivered in accordance with these terms and conditions prior to the date on which notice of termination is given to Seller. If, without authorization from Buyer, Seller ships Products that arrive more than five (5) days in advance of the scheduled delivery date, Buyer may either return such Products or store them at Seller’s risk and expense, and may inspect, accept or reject, and pay for such Products in accordance with the original delivery schedule.
d. Timely delivery of Conforming Products in the Full Quantities Specified Seller shall furnish the exact quantities called for in this Order, and no variation will be accepted as compliant, except with Buyer’s prior written consent. Buyer may return excess shipments (or make other disposition at Seller’s direction) at Seller’s risk and expense or choose to accept the Products at Buyer’s sole discretion. If any shipment or delivery is made which is not in all respects in accordance with this Order (including time of shipment or delivery), Buyer may treat this Order as repudiated by Seller. In such instance, Buyer reserves the right (without authorization from Seller and without limiting its rights to seek further recourse) to reject such delivery and return any shipment at Seller’s risk and expense, including, without limitation, incoming and outgoing freight, storage and handling charges where applicable, and/or cancel any outstanding delivery hereunder.
e. Installation. If specified on the front side of this Order. Seller, at its own cost and expense, using Seller personnel that have been trained and certified by Seller to perform such installation, shall install the Products at the installation site(s) specified on the front side of this Order. Seller shall use commercially reasonable efforts to perform such installation in accordance with the schedule set forth on the front side of this Order. Following completion of such installation, Buyer shall have the right to inspect the installed Products to ensure that such Products have been correctly installed. If such Products have not been correctly installed, then Seller shall re-install such Products in accordance with this Section 4 (e) at no additional cost to Buyer, and the parties will repeat the procedures set forth in this Section 4 (e) until such Products have been correctly installed. Any costs for re-inspection shall be to the account of the Seller.
5. Changes. Buyer may, at any time prior to delivery of all Products ordered hereunder, by written change purchase order issued to Seller, modify this Order for any reason with respect to any one or more of the following: (i) drawings, designs, or specifications; (ii) method of shipping or packing; (iii) place of delivery; (iv) quantity of Products purchased; and (v) delivery schedule. Should any such change increase or decrease the cost of, or the time required for, performance of this Order, an equitable adjustment of the price, delivery schedule, or both may be requested in writing by Seller or by Buyer. No request by Seller for an adjustment shall be recognized unless it is submitted to Buyer, together with a statement of the amount of the requested adjustment and the reason therefor, within five (5) business days after Seller’s receipt of the notice of change. Changes shall not be binding upon Buyer unless evidenced by written change purchase order issued by Buyer. Nothing contained in this Section 5 shall relieve Seller of the obligation to comply with the terms and conditions of this Order as modified by any change requested by Buyer.
6. Cancellation. Buyer may cancel this Order, in whole or in part, and for any reason at any time upon written notice to Seller prior to shipment without charge or penalty.
7. Inspection and Acceptance Buyer, or its authorized representative, shall have the right (but not the obligation or duly) to inspect and test any and/or all Products at the premises of Seller or any approved subcontractor engaged in the performance of this Order, or upon or after receipt, at Buyer’s election, and to accept such Products in writing or to reject for full credit or refund of the purchase price any Products that do not conform to Buyer’s specifications, the terms set forth herein or are otherwise defective.
Buyer may alternatively require Seller to replace, correct or repair such rejected Products at Seller’s cost and expense. If Buyer or its authorized representative conducts such inspection on premises of Seller or any such subcontractor, Seller shall provide or require its approved subcontractor to provide, at Seller’s cost and expense, all facilities and assistance necessary or advisable for the performance of such inspection or testing. Buyer’s right to reject Products shall apply to any Products when found to be defective (which may be based on the results of Buyer’s inspection and tests) at any time and notwithstanding any prior payment. In addition, Seller shall pay Buyer for all cost incurred and damages sustained by Buyer as a result of such defective Products, including, without limitations, other material and labor costs, inspection, unpacking, repacking, freight, storage, shipping and handling charges. Buyer’s failure to specify any defect or nonconformance in rejecting any or all of the Products shall not prevent Buyer from relying on such defect or non-conformance to establish a failure of the Products to conform to the applicable specifications or to otherwise justify rejection hereunder. Payment for Products, or use of a portion of such Products for purposes of inspection or testing, shall not constitute acceptance thereof. Failure of Seller to object to a rejection of Products by Buyer within five (5) business days of such rejection shall constitute Seller’s acceptance of Buyer’s rejection and the reasons therefore. Nothing contained in this Order shall relieve Seller in any way from its obligation of independent testing, inspection and quality control, and neither such testing nor Buyer’s inspection shall limit Buyer’s rights or diminish any of Seller’s obligations hereunder.
8. Title; Insurance. Title to, and risk of loss of, Products purchased under this Order shall pass in accordance with the shipping terms set forth on the front side of this Order. If shipment as specified in this Order is “F.O.B. Destination,” then Seller shall retain title to the Products, pay shipping costs, and bear the risk of loss or damage until delivery is made to Buyer at the place designated on this Order. If shipment as specified in this Order is “F.O.B. Seller’s Plant,” then Seller shall bear the cost of delivery of the Products to a carrier of the type specified by Buyer. Seller shall maintain, and shall cause its approved subcontractors, brokers and distributors to maintain, insurance in accordance with Buyer’s then-current insurance requirements, which shall in no event be less than what is usual and customary in Seller’s industry. Before the initial delivery of Products hereunder and thereafter no less frequently than annually, Seller shall provide Buyer with certificates of insurance evidencing such insurance, which certificates shall name Buyer and its affiliates as additional insureds on such policies. All insurance shall be primary to any insurance carried by Buyer.
9. Warranties. Seller and its employees, agents, brokers, contractors, subcontractors and representatives (collectively, “Seller Representatives”) shall comply with Buyer’s and their customers’ policies and procedures when they are at Buyer’s or customers’ facilities. Seller represents, warrants and convenants to Buyer, its affiliates, parents, successors and assigns, and all distributors, sub-distributors, resellers, customers, dealers and users of Products (“Buyer Parties”) that all Products delivered hereunder; (i) have been manufactured, tested, produced, preformed, packaged, labeled, invoiced, transported, sold, delivered and, if required, certified or registered in accordance with, and on the date of delivery will not be in violation of, and in all other respects shall comply with (a) Buyer’s specifications (if any), or if none, with Seller’s specifications, and (b) all applicable statutes, laws, ordinances, rules, regulations, standards, guidelines, judgments, orders, decrees, or rules of common law, or other governmental restrictions or any similar form of decision of or determination by, any national, state, or local government, whether now or hereafter in effect (collectively, Laws”), including without limitation Laws governing product safety, labor practices, labeling, packaging and the use of pesticides, hazardous substances and other chemicals, (i) conform to any samples submitted by Seller to Buyer; (ii) shall have the warranties for the Product specified on the front hereof and as advertised in the materials of Seller; (iii) shall be on the date of delivery free from defects, of good quality and workmanship, merchantable and safe and fit for any intended or reasonably foreseeable purpose, and the use of such Products for such purposes will not violate any applicable Law; and (iv) do not and will not infringe on any patents, trademarks, copyrights, service mark, trade secrets, intellectual property rights or other proprietary rights held by third parties. Seller also represents, warrants and covenants to the Buyer Parties that: (i) Seller has the necessary right, title, and interest to provide the Products, and such Products will be free and clear of liens and encumbrances; (ii) the Products will perform substantially in accordance with the specifications set forth in their documentation; (iii) any certifications, worksheets or similar documents provided by Seller with respect to the Products are true, correct, complete and accurate; (iv) Seller will deliver with the Products any necessary instruction and maintenance manuals with respect to the Products; and (v) any installation and support services provided under this Order will be performed in accordance with the highest industry standards. The foregoing representation, warranties and covenants shall be in addition to any implied warranties and any representations, warranties or covenants of a broader scope given to Buyer by Seller other than hereunder. Seller’s obligations under the foregoing representations, warranties or covenants shall not be affected by Buyer’s approval of any designs or materials furnished by Seller, or Buyer’s inspection, test, acceptance or use of Products subject hereto. In addition to any other rights or remedies hereunder, if any Products do not conform to the foregoing representations, warranties or covenants, Buyer may, at its option, return for a full credit or require Seller to replace , correct or repair, promptly upon request by Buyer and without expense to Buyer, any such non-conforming Products. If Seller fails to promptly so replace, correct or repair such Products after Buyer’s request, Buyer shall have the right to replace, correct or repair such Products at Seller’s cost and expense.
10. Indemnification. Seller shall indemnify, hold harmless and, at each Buyer’s Party’s option, defend each of Buyer Parties and their officers, directors, agents, employees and contractors from and against any and all demands, claims, actions, causes of action, losses, damages, liabilities, liens, judgments, costs and expenses of every type and nature (including, without limitation, attorney’s fees and expert witness fees actually incurred or to be incurred) (collectively, “Claims”), foreseen or unforeseen, which actually or allegedly arises out of or in any manner relate to or result from: (i) any actual or alleged act or omission that constitutes or might constitutes a breach by Seller of this Order or any representation, warranty or covenant contained herein; (ii) any injury to or death of any person, or property damage or economic loss, actually or allegedly resulting from or arising out of the handling, purchase, use of, or otherwise relating to any of the Products, or arising out of or the performance of this Order; (iii) any recall or withdrawal of any Products or any goods produced using the Products, whether voluntary or involuntary, actually or allegedly arising out of or resulting from any Products or any act or omission by any Seller Representatives;(iv) assertion that any Product is adulterated, misbranded, defective, or unsafe; (v) any actual or alleged infringement of any patents, trademarks, copyrights, service marks, trade secrets, intellectual property rights or other proprietary rights held by third parties; (vi) any actual or alleged violation of any Laws set forth in Section 9, 17 and/or 18 of this Order; or (vii) any actual or alleged negligence, errors, omissions, or misconduct by any Seller Representatives.
11. Defense of Claims. Seller shall pay for all costs, expenses and charges resulting from the defense of any Claim. If requested by a Buyer Party; Seller shall assume and be responsible for the defense of all Claims with counsel reasonably satisfactory to such Buyer Party; provided that such Buyer Party may, at its option, participate in the defense of any such Claims with its own counsel if it so chooses. Seller shall keep such Buyer Party fully informed at all times with respect to any material developments in all Claims, and, without limiting the foregoing, shall provide such Buyer Party with written status reports on such matters at least on a quarterly basis. Seller shall not settle any Claim without such Buyer’s Party’s written consent, which consent shall not be unreasonably withheld.
12. Liability. IN NO EVENT SHALL BUYER ‘S LIABILITY FOR BREACH OR ALLEGED BREACH OF THIS ORDER EXCEED THE TOTAL EXTENDED PRICE OR PRICES SHOWN ON THIS ORDER NOR SHALL BUYER BE LIABLE TO SELLER FOR ANY INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING FROM ANY SUCH BREACH OR ALLEGED BREACH.
If Seller breaches this Order, Seller shall be liable for all resulting damages, including any direct, indirect, punitive, special or consequential damages. Seller’s liability may exceed the total extended price or prices shown on this Order, and Buyer and Seller each acknowledge that this liability provision allocates risks between the parties, as authorized by the Uniform Commercial Code and other applicable laws.
13. Force Majeure. Neither party shall be liable for any delay or failure of performance due solely to war, acts of terrorism, Acts of God, strikes, fires, earthquakes, or other similar causes beyond its reasonable control and without its fault or negligence, provided that the party subject to such delay shall have given written notice to the other of any such causes for delay or anticipated delay promptly following the commencement thereof. If Seller should be unable, due to such a cause, to meet all of its delivery commitments for Products ordered herein as they become due, Seller shall not discriminate against Buyer or in favor of any other customer in making deliveries or performance commitments for such Products. Seller shall use its best efforts to make deliveries or preform as expeditiously as possible taking such cause of delay into account. However, if Buyer believes that the delay or anticipated delay in Seller’s deliveries or performance may impair Buyer’s ability to meet its production delivery schedule or may otherwise interfere with its operations, Buyer may at its option, and without liability to Seller, cancel outstanding deliveries of Product hereunder in whole or in part.
14. License and Ownership Rights.
a. License. Seller hereby grants to Buyer, and Buyer hereby accepts, a worldwide, nonexclusive, perpetual right and license (including the right to sublicense) to use, reproduce, perform and display (publicly or otherwise) the Software, documentation and any portion of any of the foregoing on, as part of, or in connection with Buyer’s use of the Equipment. The rights granted hereunder include the right of Buyer to have such rights exercised by a third party on behalf of Buyer. Except as expressly permitted herein and as permitted by applicable law without a license, Licensee will not decompile, disassemble or otherwise attempt to derive the source code of the Software.
b. Ownership Seller hereby assigns to Buyer any and all right, title and interest of every kind and character it may have in, and conveys good title to Buyer in the Equipment to be provided hereunder. Subject to Buyer’s rights herein, Seller retains all right, title and interest, including, without limitation, all patent rights, copyrights, trademarks, trade secrets and all other intellectual property rights, in and to any Software.
15. Confidentiality The terms and existence of this Order, everything supplied in connection with it by Buyer, and all related information and data shall be confidential information of Buyer and shall be held in confidence by Seller. Seller shall not publicly announce or disclose this Order or its content without Buyer’s prior written consent. Seller shall not use Buyer’s name in any way, including without limitation, a general or sample listing of Seller’s customers, without Buyer’s prior written consent. Any violation of this Section 15 shall be deemed a default hereunder.
16. Compliance with Other Laws. Any provision which is required to be a part of this Order by virtue of any Law, including, without limitation. The Equal Employment Opportunity Clause and the Affirmative Action Clauses set forth in Executive Order #11246, as amended, the regulations at 41 CFR Parts 60-1 through 60-50, 38 U.S.C. $$ 4211-4212 (Vietnam Era Veterans Readjustment Assistance Act), Section 503 of the Rehabilitation Act of 1973, and regulation at 41 CFR Parts 60-250 and 60-741, as each may amended, is incorporated herein by specific reference. Seller represents and covenants that Products to be furnished pursuant to this Order were or will be produced in compliance with the requirements of the Fair Labor Standards Act of 1938, as amended, and all applicable employment Laws. Seller agrees to submit all reports, certifications, and other documents required for compliance with the terms of the Section 16.
17. Default. Seller shall be in default of this Order if Seller: (i) fails to comply with any of the terms and conditions of, or breaches any representation, warranty or covenant provided for in, this Order; (ii) Seller ceases to conduct its operations in the normal course of business, becomes insolvent, or makes an assignment for the benefit of its creditors; or (iii) a bankruptcy petition is filed by or with respect to Seller. If Seller defaults, Buyer may, in its sole discretion upon written notice to Seller: (a) withhold from any amount due Seller under this Order such amount as is required, in Buyer’s reasonable judgment, to protect Buyer from loss or damage; (b) immediately terminate this Order in whole or in part; and (c) exercise any other right or remedy provided for herein or by law. BUYER SHALL HAVE NO LIABILITY TO SELLER AS A RESULT OF TERMINATION FOR DEFAULT.
18. Miscellaneous This Order, any document referred to herein, any signed written agreement between the parties relating to the subject matter hereof, any signed nondisclosure agreement between the parties, and any other warranties provided by Seller to Buyer constitutes the entire agreement between the parties with respect to the subject matter of this Order and supersedes all previous negotiations, commitments, purchase orders, and writings with respect thereto. Except for written change purchase orders issued by Buyer, this Order may only be modified by a writing signed by a duly authorized representative of both parties. No part of this Order or any of the rights or obligations hereunder may be assigned or subcontracted by Seller without the prior written approval of Buyer. All rights granted to Buyer Parties hereunder are in addition to an not in lieu of all other rights and remedies available to Buyer whether at law or in equity. Buyer’s failure or delay in insisting on any right shall not operate as a waiver of such right or any other right. This Order shall be governed by the laws of the State of New Jersey, without regard to conflict of law principles. Seller hereby agrees that any and all disputes arising under this Order shall be subject to adjudication only in the state courts of Union County, NJ, and Seller hereby consents to the exclusive jurisdiction of such courts. If any action is commenced in connection with this Order, the prevailing party in such action shall be entitled to recover from the other party its costs of suit incurred including without limitation, its attorneys’ fees and expert witness fees. Should any of the provisions of this Order be declared by a court of competent jurisdiction to be invalid, void or otherwise unenforceable, such provision shall be enforced to the maximum extent possible so as to effect the intent of the parties, or, if incapable of such enforcement, shall be deemed to be deleted from this Order, and the remainder of this Order shall remain in full force and effect.