ACCEPTANCE. ANY PROPOSAL FOR ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS OR ANY ATTEMPT BY SELLER TO VARY TO ANY DEGREE, ANY OF THE ACCEPTANCE SHALL NOT OPERATE AS A REJECTION OF THIS ORDER BUT SHALL BE DEEMED A MATERIAL ALTERATION THEREOF, AND THIS ORDER SHALL BE DEEMED ACCEPTED BY SELLER WITHOUT SUCH ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS. ANY ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS WHICH MAY BE CONTAINED IN ANY DOCUMENT FURNISHED BY SELLER IN ACCEPTING THIS ORDER ARE HEREBY OBJECTED TO AND REJECTED. DELIVERY BY SELLER OF THE GOODS OR SERVICES COVERED BY THIS ORDER OR THE COMMENCEMENT OF PERFORMANCE BY SELLER OF THE WORK COVERED BY THIS ORDER SHALL BE DEEMED AN ACCEPTANCE BY SELLER OF THIS ORDER. THIS ORDER IS MERELY AN OFFER TO PURCHASE AND IS NOT AN ACCEPTANCE OF ANY OTHER OFFER OR THE CONFIRMATION OF AN EXSISTING CONTRACT. NO REFRENECE HEREIN TO SELLER’S QUOTATION, BID, PROPOSAL OR ANY OTHER DOCUMENT PREPARED BY SELLER SHALL CONSTITUTE BUYER’S ACCEPTANCE OF ANY TERM OR CONDITION CONTAINED IN SUCH DOCUMENT. HOWEVER, IF THIS DOCUMENT IS DEEMED TO BE AN ACCEPTANCE OF AN OFFER OR THE CONFIRMATION OF AN EXSISTING CONTRACT, SUCH ACCEPTANCE OR CONFIRMATION IS EXPRESSLY CONDITIONED UPON SELLER’S ASSENT TO THE TERMS AND CONDITIONS SET FORTH HEREIN.
CHANGES. Seller shall furnish the goods or services ordered hereunder in strict compliance with the Order unless a change is agreed upon in writing by an authorized representative of Buyer. No course of prior dealings or usage of trade shall be applicable unless expressly referred to in this Order. Buyer may at any time by written notice to Seller make changes within the general scope of this Order. Seller shall promptly make such changes, and any difference in price or time for performance resulting from such changes shall be equitably adjusted for Buyer. Seller shall promptly provide to Buyer documentation relating to such changes in such form and detail as Buyer may direct.
FORCE MAJEURE. Neither party shall be liable for failure or delay in performance under this Order due in whole or in part to an act of God, strike, lockout or other labor dispute, civil commotion, sabotage, fire, flood, explosion, acts of any government, unforeseen shortages or unavailability of fuel, power, transportation, raw materials or supplies, inability to obtain or delay in obtaining governmental approvals, permits, licenses or allocation, and any other causes which are not within such parties reasonable control, weather or not of the kind specifically enumerated above. During any period of Seller’s inability to perform, Buyer may acquire from others, without incurring liability to Seller, such goods or services that Buyer may deem necessary, and, at Buyer’s option, the quantity of such goods or services ordered from Seller may be proportionately reduced.
DESIGN RESPONSIBILITY. If this Order involves the design of any equipment, machinery, materials or products, it is agreed that (I) Buyer is engaging Seller to design such items, (II) Buyer is not designing such items and (III) there shall be no contrary inference from Buyer’s purchase specifications. Such specifications are intended to set forth Buyer’s minimum requirements, with Seller having the sole responsibility for design.
WARRANTIES. Seller warrants that it knows of Buyer’s intended use for the goods or services covered by this Order and that all such goods or services are (I) merchantable, (II) fit for the particular purpose intended, (III) free from all defects in design, workmanship and material and (IV) in strict conformance with the specifications, samples, drawings, designs or other descriptions upon which this Order is based. Any goods not as warranted shall either be repaired or replaced by Seller at no additional cost to Buyer or Seller shall refund the purchase price and transportation cost applicable thereto, whichever option Buyer selects. Any goods so repaired or replaced shall be covered by the foregoing warranties from the date of such repair or replacement. No inspection, test, acceptance, use or payment in connection with this order shall affect Seller’s obligations under this Order, and such obligations shall survive inspection, test, acceptance, use or payment.
INVOICES AND CASH DISCOUNTS. Unless otherwise provided on the front of this Order, Seller shall mail a separate invoice for each shipment within 24 hours after shipment, and such invoice shall be dated no earlier than the date of shipment. If Buyer fails to receive any invoice promptly, Buyer may extend the payment date without penalty or loss of discount. Buyer reserves the right (I) to compute the cash discount date of each invoice from the date on which Seller correctly completes Seller’s portion of the transaction involved, including, but not limited to, the issuance and forwarding of a correct invoice and (II) to add to the discount period any additional time required by Buyer as a result of Seller’s failure to perform this order properly.
SETOFF. Buyer shall be entitled to setoff any amount owed by Buyer in connection with this order against any amount owed to buyer or any of Buyer’s affiliates by Seller or any of Seller’s affiliates. As to any party, the term “affiliates” means any corporation, partnership, trust or other entity controlling, controlled by, or under common control with such party.
PREPAID TRANSPORTATION CHARGES. If transportation charges are prepaid by Seller and charged to Buyer, the amount thereof shall be separately stated on the invoice for the goods or invoiced separately and shall be supported by copies of paid freight bills.
INTELLECTUAL PROPERTY RIGHTS. Seller warrants that the purchase, use or sale of the goods or services covered by this Order to not and will not infringe any patent, trademark, copyright, trade secret or other intellectual property right. Buyer shall own all intellectual property rights resulting from any design or development work in connection with Order.
CONFIDENTIALITY. Seller shall hold in confidence and use only for Buyer’s benefit any information furnished by Buyer or originated or developed by Seller in connection with this Order. Buyer shall have no obligation of nondisclosure or nonuse with respect to any information furnished by Seller, except as may be expressly set forth in an agreement signed by an officer of Buyer. Seller shall not in any manner advertise publicly or release for publication any statement mentioning Buyer or the fact Seller has furnished or contracted to furnish Buyer the goods or services covered by this order without first obtaining Buyer’s written consent. Seller’s obligations under this paragraph shall terminate 5 years after the completion, cancellation or termination of this order.
COMPLIANCE WITH APPLICABLE LAWS. Seller shall comply with all applicable statutes, laws, ordinances, codes, orders, rules, regulations, proclamations and other governmental requirements, and all provisions required thereby to be included in this Order are incorporated by reference.
TERMINATIONS. Buyer may terminate this order in whole or in part at any time without cause upon notice to Seller. For goods that are standard stock merchandise or services for which Seller’s compensation is on other than a lump sum basis. Buyer’s only obligation to Seller shall be to pay for goods shipped or services performed prior to termination. For any other goods or services, Buyer’s only obligations to seller shall be to pay (I) the documented direct cost incurred by Seller until the effective date of termination, (II) The documented direct cost incurred by Seller in complying with Buyer’s instructions in the termination notice, (III) 10 percent of the forgoing for profit and (IV) such other documented cost, such as overhead, as Buyer may approve; provided, however, that such payment, when added to all payments previously made to Seller under this Order, shall not exceed the total amount which Seller would have been entitled to receive had their been no termination.
INDEMNITY. Seller shall protect, defend and indemnify Buyer. Buyer’s affiliates and the directors, officers, employees, agents and representatives of Buyer and Buyer’s affiliates from and against any and all claims, losses, damages, costs, actions, judgments, expenses and liabilities of every kind and character whatsoever (including, but no limited to, attorneys’ fees and costs and expenses of defense) which, either directly or indirectly, are in any way connected with, arise out of or result from Seller’s performance of this order or Seller’s actual or alleged breach of its obligations or warranties under this Order; provided, however, that this provision shall not apply to any personal injury or property damage directly caused by the sole negligence of Buyer.
ASSIGNMENTS AND SUBCONTRACTS. Seller shall not, without Buyer’s prior written consent, either assign this Order or any payments due to Seller under this Order or subcontract the production of any goods or the performance of any services covered by this Order or any components or portions thereof. Subject to the foregoing, this Order shall be binding upon, and shall ensure to the benefit of, the successors and permitted assigns of Seller and Buyer.
DELIVERY. Time is of the essence in Seller’s performance of this Order. If the delivery of goods or the performance of services is not completed within a specified time, Buyer shall have the right, without incurring liability to Seller, (I) to terminate this order upon written notice to Seller as to goods not delivered and accepted or services not performed and (II) to purchase substitute goods or services and charge seller for any loss or additional cost incurred as a result thereof.
AUDITS, INSPECTIONS AND EXPEDITING ACTIVITIES. Upon reasonable notice, seller shall permit Buyer and Buyer’s designated representatives to visit Seller’s offices and manufacturing facilities for the purpose of conduction audits, inspections or expediting activities and shall arrange for such visits with Seller’s suppliers and subcontractors as Buyer deems necessary. For a period of three years after the completion, cancellation or termination of this Order, Seller shall retain its books and records relating to any work done on other than a lump sum basis and shall make books and records available on request for examination by Buyer.
LIMITATION OF BUYER’S LIABILITY. Buyer’s liability for any loss or damage in any way connected with, arising out of or resulting from this Order shall not exceed the price allocable to the particular goods or services upon which such liability is based, regardless of whether such liability arises in contract, tort (including, but not limited to, negligence or strict liability) or otherwise. In no event shall Buyer be liable to Seller for loss of profits or revenue or for any incidental, consequential, special or punitive damages.
PRICE WARRANTY. Seller Warrants That The Prices For The Goods Or Services Covered By This Order are not less favorable than those extended to others for like or smaller quantities of the same or similar goods or services. If Seller charges lower prices to others for such goods or services before it has delivered all of the goods or performed all of the services covered by this Order. Seller shall offer to reduce the prices under this Order proportionately. Seller warrants that the prices shown on the front of this Order are complete and that no additional charge of any type shall be added without Buyer’s written consent.
DEFAULT. If Seller breaches any of its obligations or warranties under this Order. Buyer may terminate this Order in whole or in part, upon notice to Seller, without incurring liability to Seller.
RIGHTS, REMEDIES AND WARRANTIES. Each of Buyer’s rights and remedies under this Order and each warranty made by Seller to Buyer shall be cumulative and in addition to any other or further rights, remedies or warranties under this Order or provided by law or in equity.
UNIFORM COMMERCIAL CODE. Article 2 of the Uniform Commercial Code including, but not limited to, all rights, obligations, remedies, and warranties set forth therein, shall apply to this Order regardless of whether it covers services, the leasing of goods or any other transaction not expressly within the scope of Article 2.
WAIVER. Buyer shall not be deemed to have waived any right, power, privilege or remedy unless such waiver is in writing and duly executed by it. No failure to exercise, delay in exercising or remedy. No exercise or partial exercise of any right, power privilege or remedy shall preclude any other or further exercise thereof by Buyer or the exercise of any other right, power, privilege or remedy by Buyer.
GOVERNING LAW. This Agreement has been made and entered into at St. Peters, Missouri, USA, and shall be governed by and construed in accordance with the laws of the State of Missouri. Any and all claims, actions or disputes arising out of this agreement shall be filed and adjudicated by a court having a situs within, or jurisdiction over, St. Charles County, Missouri, and Buyer hereby submits itself to the jurisdiction and venue of any such court.
GENERAL. This Order contains the entire agreement of the parties with respect to the goods or services covered by this Order, and all previous contracts, purchase orders, proposals, discussions and communications relating to the goods or services covered by this Order are superseded except to the extent that they have been incorporated by direct reference. This Order may not be amended without Buyer’s written consent. If any provision of this Order, whether a paragraph, sentence or a portion thereof is determined by a court of competent jurisdiction be null and void or unenforceable, such provision shall be deemed to be severed and the remaining provisions of this Order shall remain in full force and effect. The headings in this Order are for convenience of reference only and shall not effect its interpretation or construction.
