TERMS AND CONDITIONS OF THIS PURCHASE
1. ACCEPTANCE OF TERMS
THIS PURCHASE ORDER IS GIVEN UPON THE UNDERSTANDING THAT, UNLESS A SEPARATE WRITTEN CONTRACT IS SPECIFICALLY APPLICABLE TO THIS ORDER, SELLER'S ACCEPTANCE OF THIS PURCHASE ORDER IS EXPRESSLY LIMITED TO THESE TERMS AND IF ACCEPTANCE CONTAINS ANY PROVISIONS, WRITTEN, PRINTED OR OTHERWISE WHICH VARY, OR ARE INCONSISTENT WITH, OR ARE IN ADDITION TO, ANY OF THE TERMS AND CONDITIONS AS STATED HEREIN. THE TERMS AND CONDITIONS AS STATED HEREIN, NEVERTHELESS WILL PREVAIL WITHOUT CHANGE OF ANY KIND UNLESS Wm. T. Burnett & Co. (“WTB”) BY ITS PRESIDENT, VICE-PRESIDENT. OR GENERAL MANAGER SPECIFICALLY ASSENTS IN WRITING TO SUCH ALTERED ITEMS.
2. METHOD OF ACCEPTANCE.
This order may be accepted either by (1) an acknowledgement or other confirmation promising to ship the goods ordered in accordance with the shipment dates and in the quantities specified herein, or (2) shipment of the goods in accordance with the shipment dates and in the quantities specified herein. If this order is accepted by shipment of the goods, notice of shipment must be sent to WTB (at the address indicated on this order) within 48 hours of shipment. Shipment of any part of the goods specified in this order shall constitute acceptance of the entire order and the terms contained herein.
If price is not stated on this order, it is agreed that the goods shall be billed at the lowest prevailing market price. This order must not be filled at a higher price than last quoted or charged without WTB's specific authorization. In no event shall the price of the goods be higher than any price charged by Seller to any other customer for the like goods in a like quantity.
WTB will not be charged for packing, boxing, cartage or shipping without WTB's specific authorization. Time is of the essence. If shipment is not made on the date and in the manner specified, or if the goods are nonconforming in any respect, WTB reserves the right to reject and return them at Seller's expense. Any charges paid on account of goods being shipped in a manner contrary to WTB's instructions will be charged to Seller.
5. RIGHT OF INSPECTION — PAYMENT
WTB shall have the right to inspect all goods at the time and place of receipt before accepting them. Payment of an invoice does not constitute inspection and acceptance of material covered by this order. WTB's obligation to pay shall be dated from the latest of the invoice date, actual shipment date, or the shipment date specified herein.
6. RIGHT TO CANCEL
WTB shall have the right to cancel any unshipped portion of this order if inspection discloses that any portion of the goods received is not in accordance with WTB's specifications.
If this order requires work or services on or about WTB’s premises, Seller agrees to, and by acceptance hereof does, assume full responsibility for accidents to Seller's employees, for damage to property and injury to persons occurring directly or indirectly out of or in connection with the carrying on of the work covered by this order, and to procure and maintain insurance satisfactory to WTB covering such hazards. At WTB's request, Seller shall furnish to WTB certificates from the insurers showing such coverage in effect and agreeing to give WTB ten (10) days prior written notice of cancellation of the coverage.
8. DRAWINGS, SPECIFICATIONS AND TECHNICAL INFORMATION
Any drawings, specifications, photographs, samples, or technical information furnished by WTB in connection with this order shall remain the property of WTB, shall be returned to WTB upon completion of this order or upon demand, and shall be kept confidential by Seller. Neither this order nor any drawings, designs, ideas, specifications, samples, information and know-how associated herewith may be used, lent, copied, reproduced or communicated in any manner by anyone without such party first obtaining written permission of WTB. All authorized reproduction shall bear a notation of the foregoing as may be required by WTB.
9. TOOLS AND MATERIALS
Any materials supplied by WTB for use on this order on other than on a charge basis, shall be deemed as held by Seller on consignment and Seller agrees to pay for all such materials spoiled or not otherwise satisfactorily accounted for and to keep such material fully insured. Unless otherwise specified, all necessary tools, including gauges or fixtures required for the performance of this order, are to be supplied by Seller. When WTB is to pay tool charges for necessary tools, dies, gauges, jigs, fixtures and the like, or when such items are to be furnished by WTB, such items shall be held by Seller on consignment and are to be used exclusively for WTB’s product unless directed otherwise. Seller undertakes to maintain such equipment in satisfactory working condition and to keep it covered by insurance at all times without expense to WTB. It is understood in writing and agreed that said tools may be removed by WTB at any time and shall not otherwise be disposed of by Seller without specific permission in writing. Materials made to WTB's design shall not be supplied to anyone else without written permission.
Seller shall not, without first obtaining written consent of WTB, in any manner advertise or publish the fact that Seller has furnished or contracted to furnish the goods mentioned herein.
11. WARRANTIES AND CERIFICATIONS
- (a) Title. Seller warrants to WTB that the title conveyed shall be good and merchantable, and its transfer rightful, and that the goods shall be delivered free of any security interest or other lien or encumbrance.
- (b) Merchantability. Seller warrants to WTB that the goods delivered shall be merchantable, free from defect in workmanship and material, and conform to the specification. This warranty shall not exclude any express warranty, but shall be in addition to such express warranty and shall apply to all purchases except where the goods are manufactured pursuant to WTB’s design, in which case the warranty set forth in (c) below shall govern.
- (c) Design Compliance. Seller warrants to WTB that goods manufactured pursuant to WTB's design will comply with WTB's design specifications and applicable commercial specifications and/or industry standards, and will, except for design defects, be fit for ordinary purposes for which such goods are used, and will be free from defect in workmanship and material. This warranty shall not exclude any express warranty, but shall be in addition to such express warranty.
- (d) Non-infringement. Seller warrants to WTB that the goods delivered will be free of the claim of any person for infringement of any patent, copyright, trademark or the like and Seller agrees to assume the defense of any such claim and to indemnify WTB against any loss, damage, expense (including attorney's fees), decree, and/or costs arising from such claim. This warranty shall not apply to any claim arising out of Seller's compliance with specifications and/or designs furnished by WTB.
- (e) Statutory Compliance. Seller warrants to WTB that it has and will continue during the performance of this order to comply with the provisions of all applicable Federal, State and local laws and regulations including, but not limited to, the Fair Labor Standards Act, as amended, the Social Security Acts, as amended and Workmen's Compensation Laws. Seller further warrants and certifies to WTB that upon delivery, the goods will conform to and comply with all applicable consumer product safety requirements and standards including, but not limited to, standards relative to lead content in paint (16 CFR 1303.1-16 CFR 1305.5) and occupational safety and health standards including, but not limited to, the Occupational Safety and Health Act of 1970, as amended. In addition to all other available remedies, WTB may cancel this order if Seller fails to comply with this warranty.
- (f) Nonexclusive. The warranties listed above in (a) through (e) shall not exclude any warranties provided or implied by law, but shall be in addition to such warranties.
- (g) Beneficiaries. All warranties shall extend to WTB, it successors, assigns, customers, and any person who may reasonably be expected to use, consume or be affected by the goods and who is injured by breach of the warranty.
Seller may not assign any rights under this order or any portion thereof, except that claims for money due or to become due hereunder may be assigned by Seller to a bank, trust company or other financial institution, including any federal lending agency. Payments due to an assignee of any monies due hereunder shall be subject to set off or recoupment for any present or future claim or claims which WTB may have against Seller.
In the event Seller defaults in any of its obligations hereunder or upon the death, dissolution, termination of existence, insolvency, appointment of a receiver of any part of the property of Seller, assignment for the benefit of creditors, commencement of any proceeding under any bankruptcy or insolvency law wherein Seller is the debtor or the bankrupt, or the termination by a surety for Seller of its obligations under any contract or suretyship, WTB may cancel this order.
The remedies provided herein shall not exclude any remedy provided by law but shall be in addition to any such remedy.
15. APPLICABLE LAW
This order shall be governed by and shall be construed and interpreted in accordance with the internal laws of the State of Maryland, excluding its conflict of laws principles. The parties agree, consent and waive contest to the exclusive jurisdiction and venue of the federal or state courts of Maryland for all disputes arising out of or related to this contract.
No claim or right of WTB that arises out of a breach of this contract can be waived in whole or in part unless the waiver is supported by -consideration and is in a writing signed by WTB's President, Vice-President, or General Manager. No such waiver shall be held to be a waiver of any other or subsequent breach.
TERMS AND CONDITIONS SUBJECT TO CHANGE WITHOUT NOTICE