ACCEPTANCE. These terms and conditions of this Purchase Order (“Purchase Order” or “Order”) apply to all purchases of products, materials and goods (collectively, “Goods”) and services, including, but not limited to, installation of racking systems and other services (“Services”) by Twinlode Corporation (“Buyer”). This Purchase Order constitutes an offer by Buyer to Seller and becomes a binding contract on the terms set forth herein when it is accepted by Seller, either by acknowledgment or by the commencement of performance hereof. Any acceptance of this Purchase Order is limited to acceptance of its express terms and conditions. No revisions of this Order shall be valid unless in writing and signed by an authorized representative of Buyer; and no conditions stated by Seller in accepting or acknowledging this Order shall be binding upon Buyer if in conflict with, inconsistent with, or in addition to the terms and conditions contained herein, unless expressly accepted in writing by Buyer. In the event of a conflict between the terms of this Purchase Order and Seller’s acceptance or acknowledgment, the terms of this Order shall govern. Any proposal for additional or different terms or any attempt by Seller to vary in any degree the terms of this Order in Seller’s acceptance or acknowledgment, is hereby objected to and rejected.
TERMS AND CONDITIONS APPLICABLE TO PURCHASE OF GOODS.
QUANTITIES. Quantities must equal the exact quantity ordered unless otherwise agreed in writing by Buyer. Overshipments will be returned and charged to Seller.
ADVANCE MANUFACTURE AND SHIPMENT. Seller shall not manufacture or deliver any Goods in advance of the schedule set forth in this Order without Buyer’s written permission. Buyer reserves the right to return, shipping charges collect, all Goods received at Buyer’s place of business, or other specified destination, in advance of the schedule shown on this Order.
INSPECTION AND TESTING. All Goods ordered will be subject to final inspection, testing, and approval at destination by Buyer. Payment for the Goods delivered shall not constitute acceptance thereof. Buyer shall have the right to hold, inspect, test, and reject any or all Goods that are in Buyer’s judgment defective or nonconforming, and reserves the right to hold, inspect, test, and reject such goods within a commercially reasonable time, as determined by Buyer’s own inventory, manufacturing, and sales requirements.
REJECTS. Buyer reserves the right to reject and hold, at Seller’s risk and expense subject to Seller’s prompt advice as to disposal, all Goods not conforming to drawings and/or specifications and/or samples under the terms of this Purchase Order, or at Buyer’s discretion, to return any such Goods freight collect. Buyer may charge Seller all storage and handling expenses, including, but not limited to, those of unpacking, examining, repacking, storing and shipping such goods. No Goods returned as defective or non-conforming shall be replaced without an order. If any Good fabricated by Seller is rejected by Buyer due to Seller’s fault or failure to meet the requirements of drawings, specifications, and/or samples required under the terms of this Purchase Order, Seller shall at Buyer’s option, either replace such Good at Seller’s own expense or pay Buyer the replacement cost of the Good used therein. Seller’s obligations and Buyer’s rights under this paragraph shall be in addition to any other obligations of Seller, and rights or remedies which Buyer may have in law or equity.
MODIFICATIONS. No modifications of or additions to the provisions or conditions of this Purchase Order, whether included by the Seller upon the copy thereof provided for its acceptance or otherwise proposed to the Buyer, will become a part of this Purchase Order unless accepted in writing by Buyer. If the Seller ships or tenders delivery of any goods covered by this Order before otherwise accepting it, such shipment, tender, or delivery shall constitute an acceptance of this Order in conformity with the terms hereof. Buyer’s acceptance of any non-conforming lot shall not waive Buyer’s rights to damages arising from such non-conformity, nor serve to modify Seller’s obligations hereunder, nor waive Buyer’s right to require conformity as to the remainder.
PACKAGING AND CRATING. All items shall be packaged by Seller in suitable containers for protection in shipment and storage, and such items and/or packages will be properly and adequately marked and labeled. Prices set forth in this Order include all charges for Seller’s packaging, crating, storage, and for transportation to F.O.B. point.
SHIPPING AND SHIPMENT. All shipments made by Seller to Buyer shall be F.O.B. Twinlode Corporation or other place of destination as may be set forth by Buyer, upon Buyer’s Purchase Order. If in order to comply with Buyer’s required delivery date it becomes necessary for Seller to ship by a more expensive way than specified in this Purchase Order, any increased transportation costs resulting therefrom shall be paid by the Seller unless the necessity for such rerouting or expedited handling has been caused by Buyer.
WARRANTY. Seller represents and warrants that: (a) the Goods shall conform to all specifications, drawings, samples, and descriptions given; (b) Seller shall deliver good, exclusive, and marketable title to the Goods free and clear of all liens, security interests, claims, and encumbrances; (c) the Goods shall be free from defects in design, materials, warning, instruction and workmanship; (d) except as authorized by Buyer in writing, all Goods furnished, delivered or installed by Seller shall contain no asbestos; (e) the Goods shall satisfy all relevant governmental and industry standards; and (f) no federal, state, local or foreign statute, law, rule, regulation, or order will be violated in manufacturing, selling, or delivering of the Goods. Seller further warrants that all Goods furnished hereunder will be merchantable, and will be safe and appropriate for the purpose for which goods or services of that kind are normally used. If Seller knows or has reason to know the particular purpose for which Buyer intends to use the goods or services, then Seller also warrants that such goods or services will be fit for such particular purpose. Inspection, tests, and acceptanceor use of the goods or services furnished hereunder shall not affect the Sellers obligations under this warranty, and such warranty shall survive inspection, tests, acceptance, and use. Seller’s warranty shall run to Buyer, and Buyer’s successors, assigns, customers, and to all users of the products sold by Buyer. Seller shall promptly repair or replace, at Buyer’s election, all Goods that do not comply with this warranty. Whenever any property of Buyer is sent to Seller’s premises for repair, refurbishment, or any other purpose related to Seller’s provision of warranty services, title to such property shall at all times remain with Buyer and such property shall not be subject to any lien, security interest, or other claim asserted by any creditor of Seller. Seller shall bear the risk of loss or damage to such property while it is on Seller’s premises and in transit between Buyer’s premises and Seller’s premises.
TERMS AND CONDITIONS APPLICABLE TO PURCHASE OF SERVICES.
QUALIFICATIONS, SAFETY AND SECURITY AND OTHER POLICIES. Seller shall comply, and shall require its subcontractors to comply, with all applicable labor, employment, and immigration laws that may impact Seller’s obligations under this Order, including, but not limited to, federal, state and local laws, rules and regulations, and executive orders that are now or that become applicable to the Seller during the period the Seller is performing the Services hereunder. Seller shall comply with all laws relating to the verification of its workers’ eligibility to work in the United States. For any Services performed at a Buyer site (including any Buyer’s customer site), Seller and its subcontractors shall adhere to all policies, rules and requirements imposed by Buyer (or Buyer’s customer) in the course of performance of the Services. All Services performed by Seller or its subcontractors at a Buyer site (including any Buyer’s customer site), and the design of all equipment and systems brought onto such premises for the performance of Services, shall comply fully with all relevant federal, state and local laws, rules and regulations, including, but not limited to, the Occupational Safety and Health Act of 1970.
WARRANTY. Seller represents and warrants to Buyer that: (a) Seller shall perform the Services in a professional and workmanlike manner, in accordance with the standards of care, thoroughness and competence normally practiced by recognized firms in the industry performing Services of a similar nature, and in full compliance with any final written descriptions, specifications, drawings and representations specified in the Purchase Order; (b) Seller shall employ only competent and experienced personnel to perform the Services; and (c) no applicable federal, state, local or foreign statute, law, rule, regulation or order will be violated in the performance of the Services. Seller shall use reasonable commercial efforts to promptly cure any breach of this warranty; provided, however, that if Seller cannot cure such breach within a reasonable time (but no more than 10 days) after Buyer’s written notice of such breach, Buyer may, at its option, terminate the Order by serving written notice of termination. In the event the Order is terminated pursuant to this Section, Seller shall within 10 days after the effective date of termination, refund to Buyer any fees paid by Buyer as of the date of termination for the Services, less a deduction equal to the fees for receipt or use of such Services up to and including the date of termination on a pro-rated basis. Seller’s warranty shall survive inspection, tests, acceptance, and use. Seller’s warranty shall run to Buyer, and Buyer’s successors, assigns, customers, and to all users of the products sold by Buyer.
PRICES, SETOFF AND DISCOUNT TERMS. Prices, including, without limitation, production costs, transportation charges, packaging, insurance, taxes, tariffs, customs duties, and any other costs accepted by Seller (“Prices”) are not subject to change without Buyer’s written consent. No Prices will apply unless accepted by Buyer in writing. If a discount is allowed for payment within a specified time, the time for making payment so as to obtain such discount will not begin to run until the date the invoice or Goods are received by Buyer, whichever is later.
REMEDIES. In addition to Buyer’s other remedies under Purchase Order, Seller agrees to promptly correct or replace defective and/or non-conforming Goods or Services not conforming to the foregoing warranty, without expense to Buyer, when notified of such non-conformity by Buyer, provided Buyer elects to provide Seller with the opportunity to do so. Such election, however, shall not in any manner waive, limit, or modify any other rights or remedies which Buyer, or Buyer’s successors, assigns, customers, and/or product users may have against Seller at law or equity. If Seller fails to correct or replace the defective non-conforming Goods or Services promptly, Buyer, after reasonable notice to Seller, may make such corrections or replace such Goods and Services and charge Seller for the costs incurred by Buyer in doing so, as well as for all other consequential, incidental, or special damages incurred. Seller shall recognize that Buyer’s production requirements may require immediate repairs or reworking of defective Goods or Services, or the purchase of substitute Goods or Services, without notice to Seller. In such event, Seller shall reimburse Buyer for the costs, delays, and other damages that Buyer has incurred.
INDEMNIFICATION. Seller shall defend (at Seller’s expense), indemnify and hold harmless Buyer against all damages, claims, liabilities, and expenses (including but not limited to reasonable attorneys’ fees) arising out of or resulting in any way, directly or indirectly, from any defect or non-conformity in the Goods or Services purchased hereunder, including but not limited to defects in design, material, workmanship, or from failure of Seller to comply with safety inspection, labeling, instructional, or warning requirements imposed by law, governmental agencies, or industry standards, or from any act or omission of Seller, its agents, employees, or subcontractors. This defense, indemnification, and hold harmless obligation shall be in addition to the warranty obligations of Seller.
PATENT AND LIEN PROTECTION. To the extent that the Goods delivered hereunder are not manufactured pursuant to the designs originated solely by Buyer, Seller guarantees that the sale and/or use of any or all Goods delivered hereunder will not infringe any United States or foreign patents, trademarks, or copyrights. Seller further agrees to indemnify, hold harmless, and defend at Seller’s own expense, Buyer against any and all claims of patent, trademark or copyright infringement or of unfair competition arising out of the sale, cataloging, marketing, packaging, or advertising of goods sold by Seller, as well as to defend, at Seller’s own expense, indemnify, and hold harmless Buyer against all liens, security interests, and/or encumbrances whatsoever asserted against such goods, including claims to said goods, asserted by others.
INSURANCE. All materials, tooling, models, patterns, drawings and other personal property belonging to Buyer and furnished by Buyer to Seller or otherwise in Seller’s custody or possession, shall be at Seller’s risk from loss or damage from all hazards. In the event that Seller is required to enter premises owned, leased, occupied by or under the control of Buyer or a customer of Buyer during the performance of Services ordered hereunder or during delivery or installation of Goods herein contemplated or during the performance of Services otherwise required to be furnished by Seller, Seller agrees that Seller will defend (at Seller’s expense), indemnify and hold harmless Buyer, its officers and employees from any loss, cost, damage, expense or liability by reason of property damage or personal injury of whatsoever nature or kind arising out of or as a result of the performance of such Services and/or delivery and/or installation of Goods, whether arising out of the actions of Seller or of its employees, subcontractors or subsubcontractors; and, Seller agrees that it and its subcontractors will maintain insurance, including, but not limited to, public liability and property damage insurance, in reasonable amounts covering the obligations set forth in this Order, and will maintain proper workmen’s compensation insurance covering all employees engaged in the performance of such Services and/or delivery and/or installation of Goods.
ASSIGNMENT AND SUBCONTRACTING. Seller may not assign this Order, or sublet any part of this Order, without the prior written consent of Buyer. No part of this Order may be subcontracted without the prior written approval of Buyer.
TERMINATION FOR CONVENIENCE OF BUYER. Buyer reserves the right to terminate this Order or any part hereof for its sole convenience. In the event of such termination, Seller shall immediately stop all work hereunder, and shall immediately cause any of its suppliers or subcontractors to cease work. Subject to any terms on the face hereof, Seller shall be paid a reasonable termination charge consisting of a percentage of the Order price reflecting the percentage of the work performed prior to the notice of termination, plus actual direct costs resulting from termination. Seller shall not be paid for any work done after receipt of the notice of termination, nor for any costs incurred by Seller’s suppliers or subcontractors which Seller could reasonably have avoided. Seller shall not unreasonably anticipate the requirements of this Order. Buyer’s right to terminate shall be in addition to any other rights or remedies which Buyer may have in law or equity.
TERMINATION FOR CAUSE. Buyer may also terminate this Order or any part hereof for cause in the event of any default by the Seller, or if the Seller fails to comply with any of the terms and conditions of this Purchase Order. Late deliveries of Goods, deliveries of Goods or performance of Services that are defective or which do not conform to this Order, the change in control of Seller through sale, transfer, death or otherwise (including any change to persons or entities under the direction and control of Seller designated to deliver Goods or perform Services hereunder), and failure to provide Buyer, upon request, with adequate assurances of future performance shall also be among the causes which allow Buyer to terminate this Order for cause. In the event of termination for cause, Buyer shall not be liable to Seller for any amount, and Seller shall be liable to Buyer for any and all damages sustained by reason of the default that gave rise to the termination.
CANCELLATION FOR INSOLVENCY. In the event of any proceedings against Seller, voluntary or involuntary, in bankruptcy or insolvency, or under any provisions of the United States Bankruptcy Code, or for the appointment of a receiver or trustee or an assignee for the benefit of creditors of Seller, Buyer shall be entitled to cancel this Purchase Order forthwith, without liability or loss of anticipated profits.
CONFIDENTIALITY. This Purchase Order, together with all drawings, specifications and samples included therewith or referenced thereby, shall be maintained in confidence by Seller. No information concerning this Purchase Order, including the Goods to be delivered and the Services to be performed hereunder, shall be disclosed by Seller to, or used for the benefit of, any other party. No product first manufactured by Seller for Buyer pursuant to the Purchase Order shall be sold by Seller to any other party without written permission in advance from Buyer.
PAYMENT AND SETOFF. Payment for the Goods or Services ordered hereunder shall not constitute an acceptance thereof, but all items shall be received subject to Buyer’s inspection and rejection. Payment shall be made as stated in this Purchase Order, less customary cash discount, unless otherwise specifically arranged for and stated on this Purchase Order; or in the event that any Good or Service item has not been received, the Buyer reserves the right to withhold payment until such item has been received and checked and does not waive the right to deduct the cash discount. All claims for money due or to become due from Buyer shall be subject to deduction or setoff by the Buyer by reason of any counterclaim arising out of this or any other transaction with Seller. Such setoff shall be in addition to any other rights or remedies available to Buyer at law or equity.
FORCE MAJEURE. Buyer may delay delivery, acceptance or performance occasioned by causes beyond its control. In such event, Seller shall hold Goods and/or delay in performing Services at the direction of Buyer and shall deliver the Goods and perform the Services when the cause affecting the delay has been removed. Buyer shall be responsible only for Seller’s direct additional costs in holding the Goods or delaying performance of this Agreement at Buyer’s request. Seller shall also be excused if delivery or performance is delayed by the occurrence of unforeseen and unforeseeable events that are beyond Seller’s control, provided Seller notifies Buyer of such events as soon as they occur, and gives Buyer its best estimate of revised delivery or performance dates.
CHANGES. Buyer shall have the right at any time to make changes in drawings, designs, specifications, materials, packaging, time and place of delivery or performance, and method of transportation. If any such change causes an increase or decrease in the cost, or the time required for performance, an equitable adjustment shall be made and this Purchase Order shall be modified in writing accordingly.
WAIVER. Buyer’s failure to insist on performance of any of the terms or conditions herein or to exercise any right or privilege or Buyer’s waiver of any breach hereunder shall not thereafter waive any other terms, conditions, or privileges, whether of the same or similar type.
DELIVERY. Time is of the essence of this Purchase Order, and if delivery of Goods or rendering of Services is not completed by the time promised, Buyer reserves the right without liability, and in addition to its other rights and remedies, to terminate this Order by notice effective when received by Seller as to Goods not yet shipped or Services not yet rendered and to purchase substitute Goods or Services elsewhere and charge Seller with any loss incurred. Buyer further reserves its right, at its sole discretion and in addition to its other rights and remedies, to require the specific performance of Seller’s obligations pursuant to this Purchase Order.
ENTIRE AGREEMENT AND SEVERABILITY. In accepting this Purchase Order or making any Goods deliveries or performing any Services hereunder, Seller agrees to all of the terms and conditions stated on this Purchase Order. This Purchase Order and any written documents that may be attached hereto and/or incorporated by specific reference constitute the entire agreement between the parties and supersede all previous communicates between them, either oral or written. All such previous communications are hereby abrogated and withdrawn. Whenever possible, all terms and conditions of this Purchase Order shall be interpreted so as to be valid under applicable law. If any provision hereof is determined invalid under applicable law, such invalidity shall be limited to such provision without invalidating the remainder of this Purchase Order or other terms or conditions thereof.
LIMITATION ON BUYER’S LIABILITY. In no event shall Buyer be liable for anticipated profits or for incidental or consequential damages. Buyer’s liability on any claim of any kind for any loss or damage arising out of or in connection with or resulting from this Purchase Order or from the performance or breach thereof shall in no case exceed the price allocable to the Goods or Services or unit thereof that gives rise to the claim, less material, labor, and production cost savings of Seller. Buyer shall not be liable for penalties of any description.
CHOICE OF LAW AND FORUM. Any questions, disputes, controversies, or litigation arising either directly or indirectly from this Purchase Order, including, but not limited to, disputes concerning the validity, interpretation, enforcement or effect of this Purchase Order or interpretation concerning the rights and obligations of the parties hereunder, shall be governed (whether in law or in equity) by the laws of the State of Indiana, and the State courts of Indiana shall be the exclusive jurisdiction within which to resolve all such questions, disputes, controversies, or litigation.