Purchase Order Terms and Conditions
Acceptance - This purchase order constitutes Buyer's offer to Seller, and commencement of performance pursuant to this Order shall constitute acceptance by Seller. Conditions stated by Seller in acknowledgment of this Order shall not affect Buyer's offer as represented by this Order, and shall not be binding on Buyer if in conflict with, or in addition to, any of the provisions of this Order (including delivery schedule, price, quantity, specifications, and terms and conditions) unless expressly agreed to in writing by Buyer. Acceptance of this contract/agreement or authorization is evidence of your intent to comply with Title's VI and VII of the 1964 Civil Rights Act which prohibits discrimination because of race, sex, national origin, age, color or handicap in any facet of your operation except where such discrimination is a bona fide, documented business necessity.
Contract - A contract resulting from the acceptance of this Order is to be construed according to the laws of the state from which this Order issues as shown by the address of the Buyer, which is printed on the face to this Order. The County of Summit, State of Ohio shall be the sole and exclusive venue for any dispute, litigation, special proceeding or other proceeding between the parties that may be brought, arise out of or in connection with or by reason of this Order.
Delivery Schedules - Deliveries are to be made at times specified by Buyer. If Seller fails to make deliveries at the time agreed upon, Buyer reserves the right to cancel, purchase elsewhere, and hold Seller accountable for any additional costs or damages incurred.
Excusable Delays - Except with respect to defaults of subcontractors, Seller shall not be liable for delays or defaults in deliveries due to causes beyond its control and without its fault or negligence. If at any time Seller has reason to believe that deliveries will not be made as scheduled, written notice setting forth the cause of the anticipated delay will be given immediately to Buyer. Any delay due to default of subcontractor will be excusable if beyond the control and without the fault or negligence of both Seller and its subcontractor and if Seller establishes that it could not obtain supplies or services from any other source in time to meet the delivery schedule. Where the Buyer receives notification of a material or indefinite delay, he may by written notification to the Seller as to any delivery concerned, and where the prospective delay substantially impairs the value of the entire contract, then also as to the whole, either terminate and thereby discharge any non-executed portion of the contract or to modify the contract by agreeing to take available materials in substitution.
Prices - Seller's price shall not be higher than last quoted or charged to Buyer unless otherwise agreed in writing. Invoices must be rendered for each shipment under this Order on date of shipment.
Quantities - Shipments must equal exact amounts ordered. Unless agreed to by Buyer, Buyer will have no liability for payment for materials delivered to Buyer which are in excess of quantities specified on the face of the Order.
Warranty - Seller expressly warrants that all the material and work covered by this Order will conform to the specifications, drawings, samples or other description furnished or specified by Buyer, and will be merchantable, of good material and workmanship and free from defect. Seller expressly warrants that all the material covered by this Order, which is the product of Seller or is in accordance with Seller's specifications, will be fit and sufficient for the purposes intended. This warranty shall survive any inspection, delivery, or acceptance of the materials, and payment therefore, by Buyer. If any warranties specified herein or otherwise applicable are breached by the Seller, Buyer may, at Buyer’s election (1) require the Seller to correct at Seller's expense any defects or nonconformance by repair or replacement or (2) return defective or nonconforming goods to the Seller at Seller's expense and recover from the price thereof. The foregoing remedies are in addition to all other remedies at law or equity or as contained in agreement and shall not be deemed to be exclusive.
Inspection - All material shall be received subject to Buyer's inspection and rejection. Defective material or material not in accordance with Buyer's specifications will be held for Seller's instruction and at Seller's risk and, if Seller so directs, will be returned at Seller's expense. No goods returned as defective shall be replaced without a new order and schedule. Payment for material on this Order prior to inspection shall not constitute an acceptance thereof, nor will acceptance remove Seller's responsibility for latent defects.
Patents - By accepting this Order, Seller agrees to, and shall, indemnify, defend and hold harmless Buyer, its successors, assigns, and users of its products, from and against any and all claims, actions whether at law or in equity, damages, costs and expenses (including reasonable attorneys’ fees and all costs of defense), whether accrued or paid arising from or in connection with any patent, trade secret or copyright infringement suit brought against Buyer alleging infringement of a third party’s patents, trade secrets, copyrights, or other intellectual property rights by reason of the use or sale of the material ordered (collectively, “Infringement Claims”). Within fifteen (15) days after either party receives knowledge of any Infringement Claims or actions subject to this Section, such party shall notify the other party thereof. Seller’s obligations under this Section shall survive the termination of this Order for any reason. In the event a court of competent jurisdiction makes a determination that any material infringes, or if Seller determines that the material likely infringes, Seller, at its option and expense, shall: (i) modify the infringing portion of the material so as to make it non-infringing; (ii) replace the infringing material with non-infringing material having substantially similar functionality; (iii) obtain the right to continue using the infringing portion of the material; or (iv) refund Buyer the amounts paid for the affected material.
Changes - (a) Buyer may at any time, by a written order make changes within the general scope of this Order in any one or more of the following: (i) drawings, designs, or specifications (ii) method of shipment or packing: (iii) quantities of articles to be furnished: (iv) place of delivery; and (v) delivery schedules. If any such changes cause any increase or decrease in the cost of, or the item required for the performance of any part of the work under this Order, whether changed or not changed by any such order, an equitable adjustment shall be made in the price or delivery schedule, or both, and the Order shall be modified in writing accordingly. 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 provided, however, that Buyer, if it decides that the facts justify such action, may receive and act upon any such claim asserted at any time prior to final payment under this Order. However, nothing in this clause shall excuse Seller from proceeding with this Order as changed. (b) Buyer's personnel may from time to time render assistance or give technical advice to, or exchange information with, Seller's personnel concerning this Order or the articles or services to be furnished hereunder. However, such assistance, advice statements, or exchange of information shall not constitute a waiver with respect to any of Seller's obligations or Buyer's rights hereunder, to be authority for any change in the articles called for hereunder. Any such waiver or change to be valid and binding upon Buyer must be in writing and signed by an authorized representative of Buyers' Purchasing Department. In case of any doubt, Seller should promptly consult Buyer's Purchasing Department for further instructions. (c) In connection with any claim for adjustment under this clause. Seller shall submit cost data in such form and detail as may reasonably be required by Buyer. (d) Where the cost of property made obsolete or excess as a result of a change is included in Seller's claim for adjustment pursuant to this clause, Buyer shall have the right to prescribe the manner of disposition of such property.
Supplementary Information - Any specifications, drawings, notes, instructions, engineering notices, or technical data referred to in this Order shall be deemed to be incorporated herein by reference as if fully set forth. In case of any discrepancies or questions, refer to Buyer's Purchasing Department for decision or instructions or for interpretation.
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 Purchase Order. Seller shall use such drawings and specifications only in connection with this Order, and shall not disclose such drawings and specifications to any person, firm, and corporation other than Buyer's or Seller's employees, subcontractors, or Government inspectors. The Seller shall, upon Buyer's request or upon completion of the Order, promptly return all drawings and specifications to Buyer.
Information Disclosed - Unless 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 for this Order.
Shipping and Billing - (a) All material shall be suitably packed, marked, and shipped in accordance with the requirements of common carriers in a manner to secure lowest transportation cost and no additional charge shall be made to the Buyer therefore unless otherwise stated herein (b) No charge shall be made by Seller for storage, unless otherwise stated herein. (c) Seller shall properly mark each package with Buyer's order number and where multiple packages comprise a single shipment each package shall also be consecutively numbered. Purchase order number and package numbers shall be shown on packing slips, bills of lading, and invoices. (d) Packing slips must accompany each shipment. (e) Original bill of lading, or other shipment receipt, for each shipment shall be attached to the invoice and promptly forwarded by Seller. (f) Seller agrees to describe material on bill of lading or other shipping receipt and to route shipment in accordance with instructions issued by Buyer. (g) Render invoices in duplicate on day of shipment accompanied by bill of lading, (h) Monthly statements must be rendered promptly.
Title and Delivery of Goods - All goods shall be shipped FOB. Children's Hospital Medical Center of Akron unless notified at time of order. When goods are purchased FOB Seller's plant or shipping point, it is agreed between Seller and Buyer that the goods covered by this Order shall not be considered as delivered and title thereto shall not pass until the goods reach the Buyer's receiving point indicated hereon. However, Buyer assumes responsibility at the FOB point for carrier routing, transportation charges, and risk of loss or damages to the goods in transit. Children's will not accept collect shipment.
Government Regulations - In the performance of work under this Order, Seller agrees to comply with all applicable federal, state, or local laws, rules, regulations, or ordinances. Seller has not been suspended on debarred by Federal Government for use of federal funds.
Federal Grant Funds - When federal grant funds are provided / used for a project, to the greatest extent practicable, all equipment and product purchased "with funds made available under this award" should be American-made.
Insolvency - Buyer may forthwith cancel the contract resulting from the acceptance of this Order in the event of the happening of any of the following, or of any other comparable event: Insolvency of the Seller: The filing of a voluntary petition of bankruptcy: The filing of an involuntary petition to have Seller declared bankrupt provided it is not vacated within thirty (30) days from the date of filing: The appointment of a receiver or trustee for Seller provided such appointment is not vacated within thirty (30) days from the date of such appointment: The execution by Seller of an assignment for the benefit of creditors.
Advertising - Seller shall not, without first obtaining the written consent of Buyer, in any manner, advertise or publish the fact that Seller has contracted to furnish Buyer the material herein ordered, and for failure to observe this provision, Buyer shall have the right to terminate the contract resulting from the acceptance of this order without any obligation to accept deliveries after the date of termination or make further payments except for completed articles delivered prior to termination
Assignment - Neither this Order nor any interest under it shall be assigned by Seller without the prior written consent of Buyer, except the 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, except to the extent that any such claims may be expressly waived in writing by Buyer. Buyer reserves the right to make direct settlements and/or adjustments in price(s) with Seller, notwithstanding any assignment of claims for monies due or to become due hereunder and without notice to the assignee.
Termination - Buyer may, by written notice, terminate this order in whole or in part if the Seller fails to perform any of the provisions of this order or so fails to make progress as to endanger performance in accordance with its terms, as determined in Buyer’s sole discretion. In the event that Seller terminates this Agreement without cause, Buyer may take reasonable action and make reasonable expenditures to mitigate harm to Buyer arising from such termination. In the event of termination pursuant to this clause, Buyer may procure, upon such terms and in such manner as Buyer may deem appropriate, goods and services similar or substantially similar to those so terminated; and the Seller shall be liable to the Buyer for any excess cost, occasioned Buyer thereby, provided that the Seller shall continue the performance of this order to the extent not terminated. The rights and remedies of the Buyer under this clause shall not be exclusive and are in addition to any other rights or remedies provided by law or by this agreement. Buyer may terminate this Agreement with or without cause upon thirty (30) days prior written notice.
Independent Contractor - None of the provisions herein are intended to create (nor shall be deemed or construed to create) any relationship between the parties other than that of independent entities contracting with one another solely for the purposes of effecting the provisions of this agreement. Neither of the parties hereto, nor any of their respective officers, directors, employees or agents, shall have authority to bind the other or shall be deemed or construed to be the agent, employee or representative of the other except as may be specifically provided herein. Neither party, nor any employees or agents thereof, shall have any claim under this agreement nor otherwise against the other party for social security benefits, workman’s compensation, disability benefits, unemployment insurance, vacation, sick pay or any other employee benefits of any kind.
Seller’s Liability for Damage or Injury; Reimbursement of Buyer- During the provision of Services under this Agreement, the Seller shall take all precautions against the possibility of any damage or injury of any kind or nature on Buyer’s property and shall maintain adequate protection of the work on adjacent and/or public property. Seller assumes entire responsibility and liability for any and all damage or injury of any kind or nature whatsoever (including death or personal injury) to all persons, whether employees of the Seller or Buyer, patients of Buyer, or otherwise, and to all property, caused by, resulting from, or arising out of the action or negligence of Seller (and/or its employees, agents, and/or assignees). Seller shall be responsible for the loss, theft, mysterious disappearance of, or damage to, equipment, tools, materials, supplies and other property of Buyer that is used by the Seller. Seller hereby agrees to reimburse Buyer for any and all damage or injury under this Section within thirty (30) days of being invoiced by Buyer for same.
Seller Indemnification- Seller agrees to and does hereby defend, indemnify and hold harmless Buyer, its affiliates, successors, assigns, directors, officers, agents and employees from and against any and all liabilities, demands, losses, damages, costs, expenses, fines, amounts paid in settlements or judgments, including without limitation, costs, reasonable attorneys’ fees, witnesses’ fees, investigation expenses, cost of management time, any and all out-of-pocket expenses, consequential damages, and all other expenses and costs incident thereto arising out of or resulting from: (i) any claim, lawsuit, investigation, proceeding, regulatory action, or other cause of action, arising out of or in connection with Seller’s Services, or the use of the Services (“Injury”), except to the extent the Injury was caused by reason of Buyer’s negligence, gross negligence, or willful misconduct; or (ii) the breach or alleged breach of this Agreement.
Remedies - The remedies herein reserved shall be cumulative, and additional to any other or further remedies provided in law or equity. No waiver of a breach of any provision of this contract shall constitute a waiver of any other breach, or of such provision.
