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TERMS AND CONDITIONS OF PURCHASE

1. Acceptance of Contract. Buyer shall not be bound by this Order until Seller executes and returns to Buyer the acknowledgement copy of the Order. Seller shall be bound by this Order and its terms and conditions when it executes and returns the acknowledgement or when it delivers to Buyer any of the items ordered, or renders for Buyer any of the services ordered herein, No contract shall exist except as hereinabove provided. Any acceptance contained herein is expressly made conditional on Seller’s assent to the additional different terms contained herein.

2. Amendments. No agreement or understanding to modify this contract shall be binding upon the Buyer unless in writing and signed by Buyer’s authorized agent. All specifications, drawings, and data submitted to Seller with this Order are hereby incorporated herein and made a part hereof.

3. Changes. The buyer reserves the right any time to make changes in any one or more of the following: (a) specifications, drawings and data incorporated in this contract where the items to be furnished are to be specially manufactured for the Buyer; (b) methods of shipment or packing; and (c) time of delivery. If any such change causes an increase or decrease in the cost of or the time required for the performance of this contract, an equitable adjustment shall be made in the contract price or delivery schedule or both. Any claim by Seller for adjustment under this clause shall be deemed waived unless asserted in writing within 10 days from receipt by Seller of the change. Price increases or extension of time for delivery shall not be binding upon. Buyer without Buyer’s written consent signed by one of Buyer’s officers.

4. Waiver. A waiver of any claim or right arising out of a breach of the provisions hereof must be in writing to be effective. Failure by Buyer to insist upon strict performance shall not constitute a waiver of any of the provisions of this Order or a waiver of any default.

5. Deliveries. Buyer’s production schedules are based upon agreement that material will be delivered to Buyer or services performed for Buyer by the date(s) specified on the face of this Order. Time is of the essence of this Order. If Seller fails to make deliveries or fails otherwise to comply with the terms, conditions and warranties of this Order, or fails to perform the services at the date(s) agreed upon, or performs the work hereunder in such a fashion as endangers its ability to make timely deliveries or to render timely performances of services, Buyer reserves the right without liability, in addition to its other rights and remedies, to terminate this contract by notice effective when received by Seller as to stated items not yet shipped or services not yet rendered and to purchase substitute items or services elsewhere and to hold the Seller accountable for any additional costs of substitute items or services elsewhere and to hold the Seller accountable for any additional cost of damages incurred by Buyer or, at Buyer’s option, Buyer may require Seller to ship express, including without limitation, shipment by Air Freight, by Greyhound or other bus, by Special Delivery or by any other means of premium transportation, in which case Seller shall allow Buyer the difference between the ordinary rate and the express rate. Any provision herein for delivery of items or the rendering of services by installments shall not be construed as making the obligations of the Seller severable. Shipments sent C.O.D. without Buyer’s written consent will not be accepted. Buyer also reserves the right to refuse deliveries made in advance of the schedule of deliveries appearing on the face hereof. Delivery shall not be deemed complete until the goods are received and subsequently accepted by Buyer, notwithstanding any agreement of Buyer to pay transportation charges. Whenever any delay (or threatened delay) in delivery is foreseen by Seller, Seller shall immediately notify Buyer of such threatened or actual delay, but any such notice shall not affect any rights of Buyer hereunder. Risk of loss or damage in transit (i.e. until delivery to Buyer) shall be upon the Seller unless otherwise provided herein.

6. Shipping, Packaging and Packing. Seller shall comply with Buyer’s shipping and routing instructions on the face of Order. No charges of any kind for boxing, packing, crating, cartage or storage will be allowed unless specifically agreed to by Buyer in writing. Seller shall be responsible for safe packaging and packing. Seller shall separately number all cases, packages and other containers showing the corresponding numbers of the invoices involved. An itemized packing slip, bearing Buyer’s order number shall be placed in each container.

7. Inspection. Items purchased hereunder are subject to inspection and approval at Buyer’s destination. In addition to its other rights and remedies, Buyer reserves the right to reject and refuse acceptance of items which are not in accordance with the instructions, specifications, drawings, and data or Seller’s warranty (express or implied). Buyer will charge Seller for the cost of the items rejected. Rejected items shall not be resubmitted for acceptance without accompanying notice of their prior rejection. Items not accepted will continue to be deemed the property of Seller and returned to Seller freight collect, at Seller’s risk. Payment for any items shall not be deemed an acceptance thereof.

8. Invoices. Promptly after shipment Seller shall forward to Buyer the invoice (bearing the date of shipment) involved, a copy of the packing slip and the bill of lading, express receipt, or parcel post receipt, all bearing Buyer’s Order number.

9. Terms of Payment. Invoices are due according to the schedule indicated on the face of this Order.

10. Price. Buyer shall not be billed at prices higher than those stated in this Order, unless so authorized in writing signed by Buyer. Seller warrants that the price charged for the items or services covered by this Order is the lowest price charged by Seller to a class similar to Buyer under conditions similar to those specified in this Order and that prices comply with applicable government regulations in effect at time of quotation, sale or delivery. Seller agrees that any price reduction made in items covered by this Order subsequent to the placement of this Order and before acceptance of items by Buyer will be applicable to this Order.

11. Warranty. By accepting this Order Seller hereby warrants that the items and services to be furnished hereunder will be free from defects of material and workmanship (including defects in design when design is Seller’s responsibility), will be in full conformity with Buyer’s specifications, drawings and data, or Seller’s samples, as the case may be, and that items furnished hereunder will be of merchantable quality and fit for the use intended by Buyer. Seller agrees that this warranty shall serve inspection, delivery and acceptance of the items and payment therefor. Said warranties shall be in addition to any warranties of additional scope given to Buyer by Seller.

12. Buyer’s Property. Unless otherwise agreed in writing, all special dies, molds, patterns, tools and other property furnished to Seller by Buyer, or specifically paid for by Buyer, shall be property of Buyer, shall be subject to removal at any time without additional cost upon demand by Buyer, shall be used only in filling orders by Buyer, shall be held at Seller’s risk for loss or damage with the exception of normal wear and tear, shall be maintained by Seller at Seller’s expense and shall be kept insured by Seller at Seller’s expense while in its custody or control in an amount equal to the replacement cost thereof, with loss payable to Buyer; all such property shall be kept separate from all other property and shall be clearly identified as the property of Buyer.

13. Patents, etc. In addition to whatever other rights Buyer may have, Seller agrees to protect and indemnify Buyer from and against all liability, loss, cost and expense, including attorney’s fees, arising out of or related to any claim, demand, suit or proceedings the actual or alleged infringement of or interference with any patent, trademark, copyright or other right concerning goods, products or materials furnished by Seller to Buyer under this Order.

14. Indemnification. This Order is placed with the Seller upon the express condition, and by acceptance of this Order Seller agrees, that the Buyer shall be reimbursed for, held harmless and indemnified from and against, all loss, damage, liability, cost and caused of action, whatsoever, including attorney’s fees, that shall be suffered or incurred by Buyer by reason of (a) a breach of any of Seller’s warranties herein, including, but not limited to, any defective material or workmanship on the services or materials supplied by Seller (or any subcontractor or supplier of Seller) hereunder; or (b) the Seller’s violation of any applicable local, state, or Federal statutes, regulations or directives (all of which the Seller agrees to comply with).

15. Fair Labor Standards Act Certificate. By acceptance hereof, Seller certifies compliance of all applicable requirements of Sections 6, 7, and 12 of the Fair Labor Standards Act of 1938, and amendments thereto, and with all applicable regulations and orders issued under Section 14 thereof. Unless otherwise agreed in writing, Seller shall be deemed to have inserted on each invoice the following certification: We hereby certify that these goods were produced in compliance with all applicable requirements of Sections 6,7 and 12 of the Fair Labor Standards Act of 1938, as amended and of regulations and orders of the Administrator of the Wage and Hour Division issued under Section 14 thereof.

16. Assignment. Neither this Order nor any interest under it shall be assigned by Seller without the prior written consent of Buyer, except that claims for monies due or to become due under this Order may be assigned by Seller without such consent, and subject to the provisions of this paragraph, Buyer shall promptly be furnished with two signed copies of any such assignment. Payment to an assignee of any such claim shall be subject to setoff or recoupment for any present or future claim or claims, which Buyer may have against Seller to the extent that any such claims may be waived in writing by Buyer. Buyer reserves the right to make direct settlements and/or adjustments in prices(s) with Seller notwithstanding any assignment of claims for monies due or to become due hereunder and without notice to the assignee.

17. Cancellation. If any of the terms, conditions or warranties of this contract, express or implied, are not strictly complied with by Seller with respect to all or any part of the items included in this Order, or upon the happening of any one or more of the following events, in addition to all other remedies, provided by law and equity, Buyer shall forthwith have the unrestricted right to cancel and terminate the within contract for default and to hold Seller accountable for any additional costs of damages incurred by Buyer: (a) Seller’s insolvency or commission of any act of bankruptcy by or assignment for the benefit of creditors; (b) filing of a voluntary or involuntary petition in bankruptcy by or against Seller; (c) appointment of a receiver for Seller; (d) Seller ceasing to conduct its operations in the normal course of business (including inability to meet its obligations as they mature) or (e) the assignment of, or delegation of performance of this Order. The acceptance of goods or performance after any attempted assignment or delegation of this Order after the occurrence of any such events shall not affect the right of Buyer to exercise its aforesaid right of cancellation.

18. Audit. Seller shall maintain adequate records pertaining to the cost of performing this Order, in such detail as will accurately reflect all net costs, direct and indirect, of labor, materials, equipment, supplies and services for which payment is to be made hereunder. Such records shall be subject to audit by Buyer in the event of cancellation or with respect to any Order for which the price is based on time and materials. In the absence of such records, Buyer shall be under no obligation to cancellation charges to which Seller might otherwise be entitled.

19. Title to Drawings and Specifications. Buyer shall at all times have title to all drawings and specifications furnished by Buyer to Seller and intended for use in connection with this Order. Seller shall use such drawings and specifications only in connection with this Order and shall not disclose such drawings and specifications or any information pertaining to Buyer, this Order or Buyer’s affairs to any person, firm or corporation other than Buyer’s or Seller’s employees, subcontractors or Government inspectors. Seller shall, upon Buyer’s request or upon completion of the Order, promptly return all drawings, specifications and documents embodying such information as were supplied by Buyer.

20. Publicity, Promotion and Advertising. Seller shall not, without Buyer’s prior written consent, issue any news release, advertisement, publicity or promotional material regarding this Order (including denial or confirmation thereof).

21. Information Disclosed to Buyer. Unless otherwise expressly provided in this Order or otherwise expressly agreed to in writing by Buyer, no information or knowledge, heretofore or hereafter disclosed to Buyer, in the performance of or in connection with this Order, shall be deemed to be confidential or proprietary, and any such information or knowledge shall be free from any restrictions (other than claim for patent infringement) as part of the consideration of this Order.

22. Sales/Use Tax Certifications. If this Order is marked “Resale”, the Buyer certifies that purchases hereunder are for resale, if marked “Exempt”, Buyer certifies that the purchases hereunder are for its own exempt use.

23. Labor Disputes. Whenever Seller has knowledge that any actual or potential labor dispute is delaying or threatens to delay the timely performance or this Order, Seller shall immediately give notice thereof, including all relevant information with respect thereto, to Buyer, and to the extent that Buyer directs, shall stockpile the material covered by this Order in an outside storage area.

24. Maine Contract. The contract resulting from this Order and its acceptance shall be governed by laws of Maine

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Compliance with Laws: SELLER SHALL COMPLY WITH ALL FEDERAL, STATE AND LOCAL LAWS AND ORDINANCES AND ALL LAWFUL REGULATIONS OF ANY PUBLIC AUTHORITY. SELLER SHALL COMPLY WITH ALL APPLICABLE LAWS, REGULATIONS, ORDINANCES, EXECUTIVE ORDERS AND RULES WITH REGARDS TO DISCRIMINIATION.

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Southworth Products Corp
P.O. Box 1380 
Portland, ME 04104-1380 
Toll-Free: 800-743-1000
TEL: 207-878-0700
FAX: 207-797-4734
Info@southworthproducts.com

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