The seller (“Seller”) identified on the attached Purchase Order (“Order”) agrees that these terms and conditions shall apply to the purchase by Acme Corrugated Box Co., Inc. (“Buyer”) of the products and/or services identified on the Order (“Goods”) and shall be incorporated therein.
The Order constitutes Buyer’s acceptance of Seller’s offer to sell Goods to Buyer in accordance with these terms and conditions which shall constitute a binding contract between the parties. Any terms or conditions proposed by Seller in any document which are different from, conflict with or add to these terms and conditions shall be deemed to materially alter the Order and are hereby objected to and rejected by Buyer. This Order and the terms and conditions shall be deemed accepted by Seller upon the earliest to occur of: (i) written or oral acknowledgment by Seller of receipt of the Order with the intent, expressed or implied, that Seller will provide the Goods; (ii) written or oral acknowledgment by Seller that Seller has commenced performance or that Seller intends to ship or deliver the Goods; or (iii) receipt by Buyer of the Goods.
The prices for the Goods sold under the Order include all federal, state and local taxes imposed upon or on account of such sale, unless otherwise indicated in the Order
Individual invoices must be issued for each shipment under the Order. Invoices shall be payable within thirty calendar days after receipt, inspection and acceptance of the Goods by Buyer unless a later payment date is provided for in the Order or in Seller’s invoice, in which case the later date shall control. Discount privileges will apply from the date of receipt, inspection and acceptance of the Goods or the date of receipt of the invoice, whichever date is later.
No change shall be undertaken except upon written authorization of Buyer. Buyer may, at any time by written notice, make changes within the general scope of the Order in the drawings, specifications, designs, methods of shipment or packing, quantities of articles to be furnished, place of delivery or delivery schedule(s). If any such change causes any increase or decrease in the cost of, or the item(s) required for the performance of any part of, the work under this Order, an equitable adjustment shall be made in writing to the price and/or delivery schedule. Any claim by Seller for adjustment under this clause must be asserted in writing within thirty (30) days from the date of receipt by Seller of the notification of change. Any claim by Buyer for adjustment under this clause may be asserted in writing at any time prior to final payment under this Order. Nothing herein shall excuse Seller from proceeding with the changed Order.
TIME OF DELIVERY IS OF THE ESSENCE. IF A TENDER OF CONFORMING GOODS IS NOT MADE BY THE SCHEDULED DELIVERY DATE, SELLER SHALL HAVE NO RIGHT TO MAKE A LATER CONFORMING TENDER. Seller shall be liable for all resulting damages to Buyer and any customers of Buyer occasioned by delay in delivery. Delivery shall not be deemed to be complete until the Goods have been received and accepted by Buyer. Seller shall bear the risk of loss to the Goods until received and accepted by Buyer.
Buyer shall have the right to inspect Goods delivered prior to acceptance. Buyer may reject or revoke its acceptance of any Goods which do not strictly conform with Buyer’s specifications and Seller’s obligations under the Order and, in such event, Buyer shall be entitled to exercise all or any of its remedies. Buyer’s inspection, discovery of any breach of warranty, failure to inspect or failure to discover any breach of warranty shall not constitute a waiver of any of Buyer’s rights or remedies.
Any required testing shall be by U.S. Government approved sources if this Order, or the related drawings and/or specification(s), specify certain affidavits, test reports or certifications attesting to the type, quality or processing as a requirement of the work to be performed. All such certifications must accompany parts when shipped. Payment of invoices will not be made without required certifications.
Seller expressly warrants that all Goods purchased and delivered: (a) shall strictly conform in all respects with Buyer’s descriptions, drawings, sample or specifications; (b) shall strictly conform in all respects to any samples, drawings, specifications or other written documents presented to Buyer in connection with the sale of such Goods to Buyer; (c) shall be merchantable, of new and best material and fit for the purpose for which such Goods are intended; and (d) shall be free from all defects in workmanship, material and design. In addition to the foregoing express warranties, the Goods purchased shall be subject to all warranties arising by operation of law. These warranties shall survive inspection, delivery, acceptance and payment, shall run to Buyer, its officers, agents, employees, successors, assigns, customers and users of the Goods and shall not be deemed to be exclusive.
Buyer may, by written notice to Seller, cancel the Order, or any portion of it, upon the occurrence of any of the following events (“Events of Default”): (a) Seller fails fully to perform any of its obligations under the Order or these terms and conditions as and when due; or (b) Buyer in its reasonable opinion believes that Seller’s ability to perform the Order is in danger or impaired. Buyer’s sole liability to Seller shall be payment for conforming Goods completed and delivered to Buyer in accordance with the Order. Buyer shall have the right to demand of Seller adequate assurance of due performance, and Buyer shall be the sole judge of the adequacy of the assurance given by Seller.
2. RIGHTS AND REMEDIES
If an Event of Default occurs, Buyer shall, in addition to the right of cancellation, be entitled to all remedies for a breach of contract set forth in the UCC and all other remedies available at law or in equity. Additionally, Buyer may, at its option: (a) refuse to accept delivery of the Goods; (b) refuse to accept a substantial tender of substitute, conforming Goods; (c) return nonconforming Goods to Seller at Seller’s expense for a full credit and, at Buyer’s option, obtain replacement Goods on an expedited basis; (d) return late delivered Goods to Seller at Seller’s expense for a full credit;(e) recover any advance payments from Seller for undelivered Goods; (f) rework the Goods to make the Goods conform to the warranties and charge Seller for all expenses related thereto; (g) use the Goods for a purpose other than the purpose originally intended and charge Seller for the amount by which the purchase price exceeds the price of Goods normally required for such alternative purposes; (h) have Seller repair or replace defective Goods at Seller’s expense and on an expedited basis; or (i) if defective Goods are repaired or replaced by Buyer or Seller, charge Seller for all costs and expenses of repairing or restoring non-defective work or Goods disturbed as a consequence of repairing or replacing defective Goods. Buyer shall be entitled to exercise any or all of the remedies specified above or each of such remedies in part. NONE OF THE REMEDIES AVAILABLE TO BUYER HEREUNDER MAY BE LIMITED.
Seller assumes the entire responsibility and liability for and agrees to indemnify, defend and hold harmless Buyer, its officers, agents, employees, successors, assigns, customers and users of the Goods from and against any and all losses, expenses (including without limitation, attorneys’ and other professionals’ fees), costs, damages (including consequential and incidental damages), demands, liabilities, suits and claims in connection with or arising out of any actual or alleged personal injury (including death) or damage or destruction to property (including loss of use) by reason of (a) any act, error or omission, whether negligent or not, of Seller or its agents, employees, suppliers, subcontractors or consultants; or (b) any defect, whether latent or patent, in any product of Seller sold to Buyer; or (c) any failure of the Goods to comply with any warranty of Seller or applicable law; or (d) any breach of the Order or these terms and conditions by Seller.
10. ENTIRE AGREEMENT
These terms and conditions and the Order constitute the entire agreement between the parties and supersede any previous agreement or understanding between the parties relating to the Goods.
11. GOVERNING LAW
These terms and conditions are made, entered into and performed in the Commonwealth of Pennsylvania and shall be in all respects governed by and construed in accordance with the laws of the United States and the Commonwealth of Pennsylvania, as if entirely performed in Pennsylvania and without regard to any conflict of law rules and without regard to any rules of construction or interpretation relating to which party prepared these terms and conditions.
Seller consents to the exclusive jurisdiction and venue of the Montgomery County Court of Common Pleas of the Commonwealth of Pennsylvania and the United States District Court for the Eastern District of Pennsylvania with respect to the enforcement of these terms and conditions, the collection of any related amounts due or any disputes arising under or with regard to the purchase of the Goods.
13. NO ASSIGNMENT
The rights and obligations under this Order and these terms and conditions may not be assigned by Seller without the prior written consent of Buyer. These terms and conditions shall inure to the benefit of Buyer’s successors and assigns.
Any provision of these terms and conditions determined by a court to be unenforceable or invalid, shall be modified to the extent necessary to eliminate the invalidity or unenforceability, and any remaining unenforceability or invalidity shall have no effect on the other provisions hereof, which shall remain in full force and effect.
Buyer’s failure to enforce strictly these terms and conditions shall not be construed as a waiver or excuse Seller from future performance. Waiver by Buyer, to be effective, must be in writing and signed by a duly authorized representative of Buyer.
16. Force Majeure
Buyer shall have the right to suspend shipments from Seller without penalty or liability to Buyer and shall not be liable to Seller for its failure to accept delivery of Goods in the event of war, terrorism, riot, flood, acts of God, fire, casualty, court order, strike, work stoppage, act of governmental authority, or other causes beyond Buyer’s control.