1. ACCEPTANCE:
This purchase order constitutes an offer which can be accepted by Seller only under its exact Terms and Conditions and within ten (10) days of its date by Seller either:
(a) signing and returning the acknowledgment copy; or
(b) commencing work on any products or services ordered and Seller notifying John Hassall, Inc. (JHI) of such fact in writing; or
(c) shipping any of the products or providing any of the services ordered, such that delivery occurs within 10 days of the date of this Purchase Order; or
(d) Seller's acknowledgment (by its acknowledgment form or otherwise) to JHI of its acceptance of this order.
No provisions of Seller's acknowledgment which conflict with or are additional to the Terms and Conditions of this Purchase Order shall apply. When accepted, this Purchase Order shall be the sole and entire contract between JHI and Seller and may only be amended, modified, rescinded or waived pursuant to Section 15 of this Purchase Order.
2. PRICES AND EXTRA CHARGES
Seller's prices shall not be higher than the prices stated on this purchase order and shall be lower if Seller's prices for products or services of like grade and quality are lower than the Purchase Order prices. Seller's prices, where no prices are stated shall be
(a) Seller's lowest prices for products or services of like grade and quality or
(b) the fair market prices of the products or services whichever are lower in any event.
JHI shall receive the benefit of all price reductions by Seller. JHI shall not be liable for any extra charges including but not limited to charges for freight, packing, storage, taxes, surcharges, tooling or tool maintenance unless specifically set forth in this Purchase Order, agreed to in writing and signed by JHI.
3. QUANTITIES
Unless otherwise agreed to in writing, JHI is limited to the specific quantities set forth in the Purchase Order. Seller warrants that all markings of weight or measurement shall be true and correct.
4. SPECIFICATIONS
Specifications describe the products or services to be furnished including but not limited to description of the dimensions, finish functional characteristics, general quantity, material manufacturing methods, quality control method, quality control procedures and tolerances of the products or services covered by this Purchase Order. Specifications are furnished in various forms including but not limited to blueprints, catalog designs, drawings, engineering instructions, quality control procedures and written specifications If any specification or instruction in whatever form supplied by JHI appears to be in conflict with another specification or instruction or is insufficient or unclear, it shall be the duty of Seller to request clarification from JHI. JHI shall be the final judge of whether the products or services are non-conforming under the specifications of this Purchase Order.
5. DELIVERY
All Sellers shall maintain one hundred per cent (100%) on-time delivery. Products shall be delivered and services provided in accordance with the shipping and delivery instructions provided by JHI. Unless otherwise specified, all products shall be tendered in a single delivery. Seller shall immediately notify JHI whenever Seller has reason to believe that any scheduled delivery will be late. Seller will be responsible for all premium freight charges due to late shipments. All deliveries shall be F.O.B. Westbury, NY or JHI's address unless specifically stated otherwise. Suppliers are responsible to maintain records of premium freight expended and report this amount on a quarterly basis to JHI along with reasons and corrective action.
6. INSPECTION
Seller shall employ adequate quality control procedures and comply with the quality control procedures provided by JHI. JHI shall have the right to inspect and test all products and services and reject or revoke acceptance on non-conforming products and services either before shipment, upon delivery, or at any time after delivery. JHI's right of inspection and revocation of acceptance shall survive the acceptance of any payment for the products or services and shall survive any resale by JHI. John Hassall, Inc., JHI's customers and regulatory bodies reserve the right to verify at Subcontractor's premises, that subcontracted products conform to specified requirements. Seller shall be responsible for all rework charges relating to defective material including defective material shipped to JHI's customers.
7. BILLING AND PAYMENT
Invoices and shipping documents shall be mailed postage prepaid to the address shown on the face of the Purchase Order. The Purchase Order number, part number and quantity must appear on all shipping documents, invoices, and correspondence. The payment date and discount period will be calculated from the date the invoice is received by the JHI or the goods are received by the JHI whichever is later. Progress payments for construction work are subject to a 10% retention until final acceptance of the construction work by JHI. No payments for construction work shall be made or due without releases of mechanics lien from all contractors, subcontractors and materialmen.
8. RETURNS
JHI shall have the right to return at Seller's expense any part or all of the non-conforming products. JHI shall have the right to return at the expense of Seller any part or all of the conforming products if quantities tendered or delivered are different than the quantities specified on the Purchase Order or the products are not tendered or delivered as scheduled.
9. RISK OF LOSS
The risk of loss for conforming goods shall be on Seller until the products are delivered to the destination specified in the Purchase Order regardless of whether JHI or Seller is paying for the freight provided. JHI shall assume the risk of loss for products while being transported on JHI's vehicles. The risk of loss for non-conforming products shall be on Seller at all times.
10. TOOLING, MATERIALS AND DOCUMENTS
All tooling (including but not limited to dies, fixtures, gages, patterns and tools), all written materials (including but not limited to blueprint, drawings, and specifications) or other tangible items furnished by JHI or paid for by JHI, either as a separate item or as part of the unit price, shall be and remain the property of JHI and will be delivered to JHI at its request in good condition, ordinary wear and tear expected. Seller shall be responsible for tool maintenance and shall not use JHI's tooling, material or documents to make products for anyone else. Risk of loss shall be Seller's. All copyrightable materials are works made for hire and JHI shall be identified as copyright owner thereon.
11. CHANGES
JHI may, at any time, make changes in the drawing, specifications or approved samples of any products or services covered by this purchase order. If such changes result in an increase or decrease in the marginal costs of Seller, then an equitable adjustment shall be made in the price or prices and this Purchase Order shall be modified accordingly. JHI may at any time extend delivery dates due to Force Majeure (as defined in Section 12) or for reasonable periods of time in the absence of Force Majeure without incurring any additional costs or expenses.
12. CANCELLATION
JHI may cancel this Purchase Order for cause in whole or in part, without any obligation or liability on the part of JHI. Cause includes without limitation:
(a) Seller's breach of any provisions of this Purchase Order including without limitations, the failure to deliver on time, notification of inability to meet terms or delivery, delivery of non-conforming products or services or the breach by Seller of any warranties
(b) Seller's insolvency or bankruptcy
(c) any cause or condition beyond JHI's control including without limitation, acts of God, the public enemy, accidents, explosions, fires, other casualties, wars, riots, embargoes, epidemics, shortages, unusually severe weather, government action, transportation difficulties, strikes, lockouts, other labor difficulties, the inability to obtain necessary materials and the failure of JHI's suppliers to deliver or perform ("Force Majeure").
13. TERMINATION
JHI may terminate this Purchase Order in whole or in part without cause in the case of special order products and services made and provided primarily in accordance with the specifications of JHI. JHI shall be liable only for marginal or variable costs and expenses (excluding without limitation, any liability for fixed or period costs, selling, general or administrative expenses, interest or profits) incurred by Seller prior to the date of termination, less full credit for direct materials or tooling reusable by Seller and less the full scrap or salvage value for materials or tooling which cannot be reused by Seller. In the case of all other products or services (including but not limited to those products or services where JHI's specifications are secondary or incidental), then JHI shall be liable for the Purchase order price only for the products shipped or services provided prior to the date of termination. Seller must furnish upon demand by JHI reasonable proof of manufacture of product prior to termination date.
14. SELLER'S EXCLUSIVE AND SOLE REMEDY
Not withstanding any breach of this Purchase Order by JHI, it is expressly agreed that Seller's remedy and the liability of JHI (whether for special order products and services or all other products and services) as set forth in Section 13 represents the exclusive and sole remedy of Seller under this Purchase Order.
15. AMENDMENT, MODIFICATION, RESCISSION AND WAIVER
This Purchase Order is intended by the parties hereto as the final expression on their agreement and it is the complete and exclusive statement of the terms and conditions thereof. No modification or rescission of this Purchase order by JHI or any waiver of rights under this Purchase Order by JHI shall be binding upon JHI unless it is in writing and signed by an authorized agent of JHI.
16. WARRANTIES
Seller represents and warrants that Seller has special skills and that JHI is relying on the skill and judgment of Seller to select and furnish suitable products or services. All written or oral statements of Seller as to functions, quality, suitability and use of the products or services are warranties of Seller. Seller represents and warrants that all products (including packaging) and services (including construction work) provided under this purchase order shall:
(a) fully and strictly conform to the specifications
(b) be free of defects
(c) be of good material and workmanship
(d) are merchantable and fit for the general and particular purposes for which they are required including any products or services which are non-conforming.
Seller shall, if JHI requests, promptly and without charge, repair or replace the products or provide replacement services. Seller shall be liable for all direct, incidental and consequential damages, including, but not limited to Lost Profits resulting from non-conforming products or services, or breach of other warranties or provisions of this Purchase Order.
17. PATENTS AND OTHER INTANGIBLE RIGHTS
Seller represents and warrants that the products or services provided under this Purchase order do not infringe, or contribute to or induce infringement, of any United States or foreign letters patent, trademarks, or copyrights and do not breach any employment agreements, restrictive covenants, or contracts or infringe any other intangible rights.
18. COMPLIANCE WITH LAWS
In connection with the performance of work under this purchase Order, the Equal Opportunity clause as set forth in (202 of Executive Order 11246, as amended, (503 of the Rehabilitation Act of 1973, as amended, and (402 of the Vietnam Era Veterans Readjustment Act of 1974, as amended, are incorporated by reference.
Seller represents and warrants that all products or services to be provided under this purchase Order shall strictly comply with all federal, state, local and where applicable, foreign laws including but not limited to the Fair Labor Standards Act of 1938, the Federal Hazardous Substances Act, the Consumer Products Safety Act, the Occupational Safety and Health Act of 1970, the Civil Rights Acts, Executive Orders 11246 and 11375, all environmental protection laws, the Motor Vehicle Safety Act, the Toxic Substances Control Act and the Americans with Disabilities Act of 1990 (all of the foregoing including the amendments thereto are the 'laws') and all rules, regulations and ordinances issued pursuant to the laws.
19. RECORDS
Seller shall grant access to JHI for the purpose of copying during business hours all records of Seller relating to the products or services to be provided under this Purchase Order.
20. TRADE SECRETS AND CONFIDENTIAL INFORMATION
Seller acknowledges that all information furnished by JHI, including, but not limited to that information set forth in Section 10, is of a confidential nature and constitutes trade secrets of the JHI. Seller shall not disclose or use except to the extent required to fulfill this Purchase Order any confidential material or trade secrets of JHI.
21. ASSIGNMENT
This Purchase Order may not be assigned in whole or in part by Seller without the express written consent of JHI. Seller shall not issue any press releases or originate any publicity in any form regarding this Purchase Order without the prior written consent of JHI.
22. GOVERNING LAW
This Purchase Order including the provisions relating to the providing of services shall be governed by the Uniform Commercial code of the State of New York and such other laws of the State of New York that may be applicable to this Purchase Order.
23. ERRORS AND OMISSIONS
Errors and omissions, including but not limited to stenographic and clerical errors, are subject to correction at any time.
24. RIGHTS AND REMEDIES OF JHI
All rights and remedies of JHI set forth in this Purchase Order shall be in addition to and not in lieu of any rights or remedies provided by law and all rights and remedies of whatever nature shall be cumulative and the past waiver of or failure to enforce any right or remedy shall not constitute the waiver of that or any other right or remedy.
25. SET-OFF
JHI and its affiliates shall have the right to set-off any amounts owed to any of them by Seller against any amounts owed to Seller by any of them.
26. WAIVER AND INDEMNITY
Seller, its agents, representatives, contractors, and employees waive any and all claims against JHI for injuries, death or property damage arising out of or related to providing the products of services (including "Construction Work" as defined below) under this Purchase Order. Seller shall indemnify, defend, protect and hold harmless JHI from any and all actions, claims costs, expenses, fees (including reasonable attorney fees as set forth in Section 28 below), investigations, liabilities, losses or suits arising out of or related to the products or services (including Construction Work as defined below) provided under this Purchase order including but not limited to those which:
(a) involve any actual or alleged injuries, death, or property damage resulting in whole or in part from defective or allegedly defective products or services provided hereunder;
(b) involve any actual or alleged infringement of any United States or foreign letter, patent, trademarks, copyrights, or other intangible rights by reason of the use or sale of any products or services provided hereunder;
(c) involve actual or alleged violation of any law, regulation, rule or ordinance relating to the use or sale of any products or services provided hereunder;
(d) involve any claims of Seller, its agents, representatives, contractors and employees relating to any actual or alleged injuries, death or property damage sustained in providing the products or services provided hereunder;
(e) involve any actual or alleged injuries, death or property damage resulting in whole or in part from the negligence of Seller, its agents, representatives, contractors, and employees, the negligence of third parties or the negligence of JHI excluding injuries, death or property damage resulting solely from the negligence of JHI; or
(f) relate to JHI's breach of its confidentiality obligations under this Purchase Order.
"Construction Work" means the construction, alteration, repair or maintenance of any building, structure or appurtenances thereto, including any moving, demolition and excavating connected therewith.
27. INSURANCE
Seller agrees to obtain and maintain policies of insurance including but not limited to policies providing public liability, product liability with a broad form vendor's endorsement naming JHI, automobile liability and worker's compensation coverage in such amounts with such companies and containing such other provisions which shall be satisfactory to JHI relating to the products of services covered by this Purchase Order. Seller shall provide JHI with certificates of insurance and all such policies and certificates shall provide that the coverage provided by such policies shall not be terminated or canceled without at least ten (10) days prior written notice to JHI.
28. COST OF LITIGATION AND INTEREST
Seller agrees to pay all costs, expenses and fees including but not limited to reasonable attorneys fees rendered in defending the underlying claim subject to indemnity under Section 26 above and/or incurred by JHI in establishing the right to indemnification, subrogation or contribution. Further, if JHI prevails in any litigation involving this Purchase Order, or Seller's performance hereunder, Seller agrees to pay all costs of JHI in connection with such litigation including without limitation, reasonable attorney's fees plus interest at the rates of 1 1/2% per month, or the highest rate allowed by law, whichever is lower, on all amounts due or payable by Seller to JHI from the date JHI notifies Seller that Seller has breached this Purchase Order or the date such amounts become due or payable to JHI, whichever is first.
29. PRECEDENCE OF REQUIREMENTS
In the case of conflicting requirements, the following order of precedence will apply: Purchase Order,Purchase Quality Clauses, Drawing, Material & Process Specification, General Terms and Conditions. For clarifications please contact JHI Purchasing Dept. at 516-334-6200.
JHI-P0013 (Rev. 10/98)