Purchase Order Terms & Conditions

1. ACCEPTANCE AND TERMS AND CONDITIONS. Seller agrees to be bound by, and to comply with all the terms and conditions of this Purchase Order, including any supplements and all specifications and other documents referred to in this Purchase Order. Commencement of the performance of the work called for in this Purchase Order shall be deemed acceptance of this Purchase Order by Seller. EXCEPT AS OTHERWISE SPECIFICALLY AGREED TO IN WRITING BY PURCHASER. PURCHASER HEREBY OBJECTS TO AND REJECTS ANY ATTEMPTED ACKNOWLEDGEMENT OR ORDER ACCEPTED CONTAINING TERMS OR CONDITIONS INCONSISTENT WITH OR IN ADDITION TO THE TERMS AND CONDITIONS OF THIS PURCHASE ORDER, WHETHER OR NOT MATERIALLY DIFFERENT THEREFROM, AND SUCH INCONSISTENT OR ADDITIONAL TERMS SHALL NOT BE BINDING UPON PURCHASER UNLESS EXPRESSLY AGREED TO IN WRITING BY PURCHASER.

2. INSPECTION AND REJECTION. All goods covered by this Purchase Order shall be received subject to Purchaser’s right of inspection and rejection. Final inspection shall be on the Purchaser’s premsies unless otherwise agreed in writing. Payment for goods delivered hereunder shall not constitute acceptance thereof, and all payments against documents shall be made with a reservation of rights by Purchaser for defects, including, without limitation, defects apparent on the face thereof. The rights granted to Purchaser in this paragraph shall not be exclusive and are in addition to any other rights Purchaser may have.

3. CHANGES. Purchaser may at any time, in writing, make changes within the general scope of this Purchase Order. Changes in this Purchase Order shall be confirmed in writing and Seller shall immediately notify Purchaser of any increases or decreases in costs associated with such changes and an equitable adjustment of prices or other terms shall be agreed upon in a written amendment to this order.

4. PRICES AND PRICE WARRANTY. Seller warrants that the prices for the goods delivered or sold hereunder are not less favorable than those currently extended to any other customer of Seller for the same or similar goods in similar quantities. If Seller reduces its prices for such goods prior to final delivery of the goods to Purchaser, Seller shall reduce the price or prices in this Purchase Order in a corresponding manner.

5. DELIVERY. Shipments shall be made in the quantities and at the time and times specified in this Purchase Order. If this Purchase Order is identified as a blanket purchase order, or if no time for delivery is specified, the time for delivery shall be at the times and in the amount requested by Purchaser or pursuant to a delivery schedule furnished by Purchaser. Unless otherwise stated herein, time is of the essence. In addition to Purchaser’s other remedies, and without liability, Purchaser reserves the right (i) to refuse and to return at Seller’s risk and expense, any shipments made in excess of quantities ordered and shipments made before or after the time or times specified in this Purchase Order or supplementary schedules furnished by Purchaser, and (ii) if delivery is not made in the quantities and/or by the time or times specified to take either or both of the following actions: (a) terminate this contract without liability by notice effective when received by Seller and to purchase elsewhere and charge Seller with any resultant loss, including, without limitation, consequential or incidental damages, unless deferred shipment has been authorized, or (b) direct Seller to make expedited routings of goods, and the difference in cost between any such expedited routing and the Purchase Order routing costs shall be paid by Seller. Seller shall not, however be liable for delays or defaults in deliveries due to causes beyond its control and without its fault or negligence. Seller must advise Purchaser if delivery will not be made as scheduled.

6. WARRANTY. Seller expressly warrants that all goods and services covered by this Purchase Order will: (a) conform to any and all documents, specifications, drawings, plans, instructions, samples, or other descriptions, furnished by the Purchaser or by Seller; (b) be fit and sufficient for the purpose(s) for which they were manufactured and sold, and if Seller knows or has reason to know of any other particular purpose for which Purchaser intends to use such goods, the goods will be fit for such particular purpose; (c) be new and merchantable; (d) be of good material and workmanship and free from defects, whether latent or patent; (e) be free from any claim of any nature by any third party; and (f) be conveyed with clear title to the Purchaser. The foregoing warranties shall survive Purchaser’s inspection, acceptance and use of the goods. All of Seller’s warranties shall run to Purchaser, its successors, assigns, customers and the users of products sold by the Purchaser. Seller agrees to promptly correct defects in any goods not conforming to the foregoing warranties, or to replace such goods without expense to Purchaser, when notified by Purchaser, provided Purchaser so elects. In the event of Seller’s failure to correct or replace such defective or nonconforming goods, Purchaser may, after reasonable notice to Seller, make such replacement at Seller’s expense. The foregoing warranties shall survive any inspection, delivery, acceptance or payment by the Company of the goods or services. The foregoing warranties and remedies shall be in addition to any other warranties and remedies in this Purchaser Order or otherwise provided by Seller to Purchaser or provided by law. In addition to the foregoing, Seller shall indemnify and hold Purchaser harmless from and against any and all claims, liabilities and expenses (including court costs and attorneys’ fees) arising out of or relating to or resulting in any way from a breach of any warranty, whether express or implied, or from any act or omsision of Seller, its officers, agents, employees or subcontractors.

7. PURCHASER’S CONFIDENTIAL INFORMATION. Seller shall keep confidential any technical, process or economic information derived from drawings, specifications, oral communication and other data furnished by Purchaser in connection with this Purchase Order and shall not divulge, export or use directly or indirectly such information for the benefit of any other party without obtaining Purchaser’s prior written consent. Except as required for the efficient performance of this Purchase Order, Seller shall not make copies or permit copies to be made of such drawings, specifications, or other data without the prior written consent of Purchaser.

8. TERMINATION. Purchaser reserves the right to cancel this Purchase Order, in whole or in part, at any time, and from time to time without cause of default on the part of Seller and without cost or liability to the Purchaser except as set forth in the following sentence. Upon termination by Purchaser under this Section, Purchaser’s sole and exclusive obligation to Seller shall be the Purchase Order price for all delivered products which conform to the requirements of this Purchase Order. The provisions of this Section shall not limit or affect Purchaser’s right to terminate this Purchase Order for default of Seller.

9. TAXES. Except as may be otherwise provided in this Purchase Order, the contract price includes all applicable federal, state and local taxes in effect on the date of this Purchase Order. In case of new taxes or increased rates or the repeal of taxes or the reduction of rates, the contract price shall be adjusted accordingly.

10. NON-ASSIGNMENT. Seller shall not delegate any duties, nor assign any rights or claims under this Purchase Order (by any means, including by operation of law) or any interest therein or any payment due or to become due hereunder, without the prior written consent of Purchaser, and any such attempted delegation or assignment shall be void.

11. SETOFFS AND COUNTERCLAIMS. All claims for moneys due or to become due from the Seller shall be subject to deduction by the Purchaser for any setoff or counterclaim arising out of this or any other of the Purchaser’s Orders with Seller, whether such setoff or counterclaim arose before or after any such assignment by Seller.

12. WAIVER. The failure of Purchaser to enforce at any time or for any period of time any of the provisions hereof shall not be construed to be a waiver of such provisions nor the right of Purchaser thereafter to enforce each and every such provision.

13. COMPLIANCE WITH LAWS. Seller agrees to comply with all applicable federal, state, and local laws or ordinances and all orders, rules and regulations issued thereunder, and any provisions, representations or agreements, or contractual clauses required thereby to be included or incorporated by reference or operation of law in the contract resulting from acceptance of this Purchase Order. Seller acknowledges and agrees that its responsibility for compliance with laws includes, but is not limited to, compliance with all applicable environmental, federal and state packaging and labeling, and all labor laws, rules, regulations and ordinances.

14. INDEMNITY. Seller agrees to indemnify and hold harmless Purchaser, its directors, officers, employees, successors, assigns, customers, and users of Purchaser’s products from and against any and all damages (including consequential and punitive damages), claims, liabilities, losses, costs and expenses (including without limitation court costs and attorneys’ fees) (“Damages”) arising out of or relating to or resulting in any way from any actual or alleged (i) defects, whether latent or patent, in the goods sold to Purchaser hereunder, (ii) breach of any express or implied warranty; (iii) violation by such goods, or their manufacture, possession, use or sale, of any law, statue or ordinance of any governmental or administrative order, rule or regulation; (iv) any breach of any of the terms, conditions, covenants and agreements contained in this Purchase Order, including, without limitation, the covenants and agreements contained in Section 15; or (v) any act or omsision of Seller, its directors, officers, employees, agents or subcontractors including, without limitation, any negligence of such persons while working in the Purchaser’s premsies. Seller shall maintain appropriate liability insurance including, without limitation, products liability insurance, public liability, property damage, employee compensation and other insurance as will adequately protect Purchaser against any such Damages.

15. GOVERNING LAW. This Purchase Order and the acceptance of it shall be a contract governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts.

16. SUPPLEMENTARY INFORMATION. Any specifications, drawings, notes, instructions, engineering notices, or technical data referred to in this Purchase Order shall be deemed to be incorporated herein by reference as if fully set forth. In case of any discrepancies or questions, Seller shall refer to the Purchaser for decision or instructions or for interpretation.

17. ENTIRE AGREEMENT. This Purchase Order with such documents expressly incorporated herein by reference and/or attached hereto constitutes the entire agreement between the Purchaser and Seller and is intended by the parties as a final expression and is intended a complete and exclusive statement of the terms of their agreement. No course of prior dealings between the parties and no usage of the trade shall be relevant to determine the meaning of this agreement.

18. INTERPRETATION. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to make the provision valid and enforceable under the applicable law, but if any provision of this Agreement shall be or become invalid or prohibited under any applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity only, without thereby invalidating the remainder of such provisions or the remaining provision of these Terms and Conditions and the Purchase Order.