POWER CONTAINER CORP.
PURCHASE ORDER
STANDARD TERMS AND CONDITIONS
VALIDITY-REQUIRED DOCUMENTS
No order is valid unless issued
on our standard signed Purchase
Order. Our Purchase
Order number must appear on all packages,
packing slips, shipping notices, invoices, etc. Packing
slips must accompany
all shipments stating
quantity shipped. Invoices
must be made in triplicate and mailed with shipping papers
the day shipment is made. These Terms and Conditions shall be
deemed incorporated into and apply to all release orders given under any
blanket Purchase Order.
ACCEPTANCE–AGREEMENT
Vendor’s commencement of work on the Goods subject
to this Purchase Order or shipment of such Goods whichever
occurs first, shall be deemed
an effective mode of acceptance of this Purchase
Order. Any acceptance of this Purchase
Order is limited to acceptance of the express
terms contained in the Purchase Order and herein,
notwithstanding any contrary terms in any acceptance or any prior course of
dealing. Any proposal for additional or different terms
or any attempt by Vendor
to vary in any degree any of the terms of this Order in Vendor’s acceptance is hereby objected
to and rejected but such proposals shall not operate
as rejection of this Order unless such variances are in the terms of the description, quantity, price or delivery
schedule of the Goods, shall be deemed a material
alteration thereof and this Order shall be deemed accepted by Vendor without said additional or different terms.
If this Purchase Order shall be deemed an acceptance of a prior offer by Vendor, such acceptance is limited to the express
terms contained on the face of the Purchase Order and on the back hereof.
ORDER
DOCUMENTS; PRIORITY OF DOCUMENTS
The Documents
comprising the agreement between Buyer and Vendor
are this Purchase
Order and revisions
authorized per provisions named herein, referenced data sheets, drawings, specifications or other specifically rendered documents. Buyer’s Drawings and Specification are to be read as a whole. In the event of any actual or apparent
conflict between
the Drawings and Specifications, Vendor shall promptly request
Buyer’s written clarification of same and Buyer’s determination shall be final and binding
upon the parties. In the event of a conflict
with terms contained on the face of the Purchase
Order and these Terms and Conditions, the terms on the face of the Purchase Order shall take precedence.
PRICE
CHARGE FOR HANDLING
This Purchase
Order may not be billed
at prices higher than those last charged
or quoted for the same material, without notification and acceptance of the increased prices.
In the event Vendor reduces
its price for such articles
during the term of this order, Vendor agrees
to reduce the prices hereof correspondingly for Buyer. Vendor warrants
that prices shown on this Purchase
Order shall be complete and no additional charges
of any type shall be added without
Buyer’s express
written consent. Such additional charges
include, but are not limited
to, shipping, packing, labeling,
custom duties, taxes,
storage, insurance, boxing,
crating, etc.
QUANTITY-EXCESS SHIPMENTS
The quantity
specified represents the amount to be supplied. Buyer has the option to return
excess shipments at Vendor’s risk and expense.
DELIVERY
Time is of the essence for this Purchase
Order, and if delivery of items or rendering of services for this Purchase
Order is not completed by the time specified, Buyer reserves
the right without liability in addition to its other rights and remedies to terminate this Purchase Order by notice effective
when received by Vendor
as to items not yet shipped
or services not yet rendered and to purchase
substitute items or services elsewhere and charge Vendor with any loss incurred.
If any delivery is, or is threatened to be delayed, Vendor
shall promptly give notice to Buyer of same together with all relevant information with respect
thereto. No such notice shall relieve Vendor of any duty hereunder.
INSPECTION/TESTING-REJECTED
GOODS
Payment for the Goods delivered
hereunder shall not constitute acceptance thereof. Buyer or any agent of Buyer shall have the right to inspect such Goods prior to acceptance and to reject any or all of said Goods, which are in Buyer’s judgment
defective or nonconforming. Goods rejected and Goods supplied
in excess of quantities called for herein may be returned
to Vendor at Vendor’s
sole cost and expense and in addition
to Buyers other rights.
Buyer may charge Vendor all expenses of unpacking examining, repackaging
and reshipping such Goods. In the event Buyer receives
Goods whose defects or nonconformity is not apparent
on examination, Buyer reserves the right to require replacement, in addition to Buyer’s other
remedies, at Vendor’s sole cost and expense as well as payment of damages. Nothing
contained in this Purchase Order shall relieve
in any way the Vendor from any obligation of testing, inspection and quality control.
SHIPMENT
Cumulative of and in addition to the Force Majeure provision herein, prior to shipment, Buyer, without obligation or liability shall have the right and option
to direct a temporary and reasonable suspension of, or direct a reasonable re-routing of, or other change in, Shipment, provided
however if any of such actions by Buyer (i) do not result from Vendor’s breach of its obligations and (ii) actually
increase Vendor’s cost of performing its obligations under the Purchase Order, an equitable and reasonable adjustment in the price shall be made. Buyer shall have no liability or obligation: (i) for future failure
to accept; (ii) to return
or reship; and/or
(iii) to pay Vendor for, untimely,
excess or under shipments of Goods, or Goods which do not conform to Specifications,
or are defective or otherwise in breach of Vendor’s representation or warranties. All such shipments
in whole or in part, at Buyer’s option, may be returned
to Vendor or held for disposition at Vendor’s expense
and risk. Any claims, demands,
losses, cost, expenses, charges, or damages
incurred by or assessed against Buyer as a result,
in whole or in part,
of the Vendor’s failure to make due and timely
delivery of all items and performance of all services hereunder shall be for the account
of Vendor; and Buyer shall have the right,
in addition to its other rights, in equity or under the Order Documents, to offset such amounts against
any unpaid portion
of the Purchase Price. Except
for (and to the extent
of) any provision in the Purchase Order for progress
payments, Buyer shall not be obligated to pay any portion of the Purchase
Price until the occurrence of Buyer’s Acceptance. All shipping and transportation terms shall be construed in accordance with the rules and regulations of Incoterms® 2010, which shall be incorporated into this Purchase
Order, except insofar
as they conflict with any other
express provision of the Purchase
Order.
CASH DISCOUNT-TERMS OF PAYMENT
If no Purchase Price is specified
in the Purchase Order, the price payable by the Buyer for the Goods shall not exceed
the price last charged or quoted to Buyer. The price payable by Buyer shall never exceed the lesser of (a) the Purchase
Price less any and all applicable discounts
and/or allowances
offered or provided
by Vendor and any price
reductions made with respect
to any items covered by this Purchase
Order subsequent to its placement
but prior to payment, or (b) the lowest
price currently being paid by any customer
of, or purchaser from, Vendor
for substantially similar materials, supplies,
equipment and/or services.
WARRANTY
Vendor expressly warrants that all Goods
or services furnished under this Purchase
Order shall conform
to all specifications and appropriate standards, will be new and will be free from defects
in material or workmanship. Vendor
warrants that all such Goods or services
will conform to any statements made on the containers or labels or advertisements for such Goods or services
and that any Goods will be adequately contained, packaged, marked and labeled. Vendor warrants
that all Goods or services
hereunder will merchantable and will be safe and appropriate for which the purpose
for such Goods or services of that kind are normally
used. Vendor warrants
that its warranty for such Goods or services shall survive inspection, test, acceptance and use. Vendor’s
warranty shall run to Buyer, its successors, assigns and customers and users of the products
sold by Buyer. Vendor agrees
to replace or correct defects
of any Goods or services
not conforming to the foregoing warranty
promptly at Vendor’s sole cost and expense, when notified
of such nonconformity by Buyer,
provided Buyer elects to provide Vendor
with the opportunity to do so. In the
case of Materials replaced or repaired (or Services re-performed) under the
foregoing warranty, the warranty period shall begin anew as to such repaired or
replaced Materials (or Services re-performed) and continue for the entire
warranty period; provided, however, that nothing herein contained shall extend
or be deemed to extend the Warranty for more than twelve (12) months beyond the
expiration of the original warranty period. Vendor’s replacement or correction shall not be Buyers sole remedy against
Vendor for such nonconformity. In the event of failure
by Vendor to correct defects in or replace
nonconforming Goods or services promptly, Buyer, after reasonable notice to Vendor,
may make such corrections or replace such Goods and services
and charge Vendor for the cost incurred by Buyer in doing so. Notwithstanding anything contained
herein to the contrary,
it is specifically agreed
and understood that the warranties and guarantees shall expire the earlier of twenty-four (24) months after shipment or one (1) year from date of initial operation
of the facility of Buyer’s
customer or other consumer of the Goods.
RISK OF LOSS
Vendor assumes
risk of loss or damage:
(1) to all Goods, work in process,
materials and other property
of Buyer or Vendor entering
into performance of this Purchase Order and to third persons
and their property
until acceptance by Buyer of all of the Goods;
(2) to any property received
by Vendor from or held by Vendor or its supplier
for the account
of Buyer; and (3) to any Goods
or part thereof rejected by Buyer or as to which Buyer has revoked
its acceptance from the time of such rejection or revocation.
CHANGE ORDERS
The Purchase
Price is firm and not subject to any cost extras or escalation. Buyer reserves, and shall have,
the right to make changes
in the Specifications as a Change Order.
If the Change Order has an effect
upon price or delivery terms, Vendor shall notify Buyer in writing
within five (5) business days after receipt thereof
of its request for a cost extra. The request for cost extra shall be in writing
and shall specify
the total monetary amount claimed by Vendor for said extra.
Failure to comply
with said procedure within the five (5) day period
shall operate as a waiver of Vendor’s right to request a cost extra.
No claim for damages or costs of any nature
shall be made or asserted
by Vendor by reason of delays
or interference from any cause whatsoever, and Vendor’s sole remedy for such delays shall be an application for an extension
of time, provided
however, that this cause shall not apply to delays
or interference caused
by Buyer’s bad faith or willful
or malicious conduct, Buyer’s
abandonment of the Purchase Order,
or Buyer’s material breach
of the Purchase Order. Vendor shall have no right to suspend
or delay its performance hereunder
while Buyer is reviewing Vendor’s request for cost extra to the Purchase
Price and/or extension to the completion schedule, or if Buyer fails to approve any such requests.
Vendor agrees that suspension of performance or delay by Vendor under such circumstances shall be considered a material breach of this Purchase
Order by Vendor. NO COST EXTRAS WILL BE PAID OR EXTRA
WORK AUTHORIZED EXCEPT
PURSUANT TO A WRITTEN CHANGE
ORDER ISSUED BY BUYER OR CONFIRMED BY A WRITTEN
WORK ORDER AUTHORIZING SAID WORK SIGNED BY AN AUTHORIZED REPRESENTATIVE OF BUYER AND ISSUED FROM BUYER’S HOME OFFICE.
PATENTS
Vendor agrees
upon receipt of notification to promptly assume
full responsibility for defense of any suit or proceeding which may be brought
against Buyer or its agents,
customers or other vendors for alleged patent infringement as well as for any alleged
unfair competition resulting from similarity in design, trademark or appearance of Goods or services furnished hereunder and Vendor
further agrees to indemnify Buyer,
its agents and customers against any and all expenses, losses,
royalties, profits
and damages, including court costs and attorney’s fees, resulting from any such suit or proceeding including any settlement. Buyer may be represented by and actively
participate through its own counsel in any such suit or proceeding if it so desires, and the costs or such representation shall be paid by Vendor.
INDEMNIFICATION
Vendor shall
defend, indemnify and hold harmless
Buyer against all damages
claims or liabilities and expenses
(including attorney’s fees)
arising out of or resulting
in any defect in the Goods or services purchased
hereunder or from any act or omission
of Vendor, its agents, employees or subcontractors.
This indemnification shall be In addition
to the warranty obligation of Vendor.
LIMITATION ON BUYER’S LIABILITY
/ STATUTE OF LIMITATIONS
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 agreement
or from the performance or breach thereof
shall in no case exceed
the price allocable to its Goods or services or unit thereof
which gives rise to the claim. Buyer shall not be liable
for penalties of any description. Any action resulting from any breach
on the part of Buyer as to the Goods
or services delivered
hereunder must be commenced within one (1) year after the cause of
action has accrued.
INSURANCE
In the event that Vendor’s obligations hereunder requires or contemplates performance of services by Vendor’s employees, or persons under contract to Vendor, to be done on Buyer’s property, or property of Buyer’s customers, the Vendor agrees that all such work shall be done as an independent contractor and that the persons doing such work shall not be considered employees
of the Buyer. Vendor shall maintain all necessary
insurance coverage conforming to applicable industry standards including, but not limited to, General
Liability and Workmen’s Compensation insurance. Vendor
shall indemnify and hold harmless
and defend Buyer from any and all claims or liabilities arising out of the work.
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, Vendor
shall stop all work hereunder, and shall immediately cause
any of its suppliers or subcontractors to cease such work. Vendor shall be paid a reasonable termination charge consisting of a percentage of the Order price reflecting their percentage of the work performed prior to the notice of termination plus actual direct costs resulting from termination. Vendor shall not be paid for any work done after receipt of the notice of termination, nor for any costs incurred by Vendor’s suppliers or subcontractors which Vendor
could reasonably have avoided.
TERMINATION FOR CAUSE
Buyer may also terminate this Order or any part thereof for cause in the event
of any default by the Vendor or if the Vendor fails
to comply with any of the terms and conditions or specifications of this Order.
Late deliveries, deliveries of products which are defective or which do not conform
to this Order, and failure
to provide Buyer upon request
of reasonable assurances of future performances shall all be cause allowing Buyer to terminate
this Order for cause. In the event of termination for cause, Buyer shall not be liable to Vendor for any amount and Vendor
shall be liable
to Buyer for any and all damages
sustained by reason of the default,
which gave rise to the termination.
FORCE MAJEURE
Buyer may delay delivery or acceptance occasioned by causes beyond its control.
Vendor shall hold such Goods at the direction of the Buyer and shall deliver them when the cause affecting the delay has been removed.
Buyer shall be responsible only for Vendor’s
direct additional costs in holding
the Goods or delaying performance of this agreement at Buyer’s request.
Causes beyond Buyer’s
control shall include, but are not limited to, government action or failure of the government to act where such action is required, strike or other labor trouble,
fire, or unusually
severe weather.
COMPLIANCE WITH LAWS-APPLICABLE LAW
The Vendor
warrants that no law, regulation or ordinance of any
nation or any subdivision thereof or any government authority or agency
is violated in the manufacture, procurement or sale of any Goods furnished on this Order.
Unless this Agreement is exempted from the Rules and Regulations of the Secretary of Labor issued
pursuant to Section
201 of Executive Order 11246,
there is incorporated herein by reference Paragraphs (2) through
(7) of the contract clause set forth in Section 202 of Executive
Order 11246. This Purchase Order and its performance shall be construed
in accordance with and governed by the laws of the State of New Jersey, USA, and Vendor hereby
consents to the non-exclusive Jurisdiction of the Federal
and State Courts
in the State of New Jersey, USA.
RESOLUTION OF DISPUTES
Any
dispute, controversy, or claim arising out of, relating to, involving, or
having any connection with the Purchase Order, including any question regarding
the validity, interpretation, scope, performance, or enforceability of this
dispute resolution provision, and including any question regarding the
relationship of the parties, will be exclusively and finally settled by
arbitration in accordance with the arbitration rules of the International
Chamber of Commerce (“ICC”). The arbitration will be conducted in New York, New
York, USA, unless the parties agree on another location, by selecting single arbitrator
selected by the ICC. The parties will be entitled to engage in reasonable
discovery, including requests for production of relevant non-privileged
documents. Depositions and
interrogatories may be ordered by the arbitrator upon a showing of need. The
arbitrator may hear and determine any preliminary issue of law asserted by a
party as dispositive to the same extent that a Federal or State Court in the State of New Jersey, USA could hear and determine a motion for summary
disposition (such as a motion for summary judgment under FRCP 56 by a U.S.
District Court). The award will be in accordance with the applicable Law, will
be in writing, and will state the reasons upon which it is based. The
arbitrator will have no power to modify or abridge the terms of the Purchase
Order or these Terms and Conditions.
PROPRIETARY INFORMATION-CONFIDENTIALITY-ADVERTISING
Vendor shall consider all information furnished
by Buyer to be confidential and shall not disclose any such information to any other person, or use such information itself for any purpose
other than performing this Purchase Order, unless Vendor
obtains prior written permission from Buyer to do so. This paragraph shall apply to drawings,
specifications, and to other documents
prepared by Vendor for Buyer or by Buyer for Vendor
in connection with this Order. Vendor
shall not advertise
or publish the fact that Buyer has contracted to purchase Goods from Vendor,
nor shall any information relating
to the Order be disclosed without Buyer’s
written permission. Unless otherwise
agreed in writing,
no commercial, financial or technical
information disclosed in any manner or at any time by Vendor to Buyer shall be deemed
secret or confidential and Vendor shall have no rights against
Buyer with respect
thereto except such rights as may exist under patent law. The specifications, composition and
formulation of the Goods were developed for and on behalf of Buyer and
constitute proprietary confidential information of Buyer, and Vendor agrees to
maintain same in confidence and not to provide or use same on behalf of any
other customer to Buyer’s detriment.
ERRORS IN DRAWINGS,
SPECIFICATIONS AND DOCUMENTS
Any errors,
discrepancies or conflicts in the technical
documents and drawings discovered by Vendor shall be brought
to Buyer’s attention for written clarification before
proceeding with manufacture. Any costs or expenses resulting
from failure to follow this procedure shall
be borne by Vendor.
ENTIRE
AGREEMENT
This Purchase
Order (including these Terms and Conditions) and any documentation referred to in the Order constitute the entire agreement
between the parties. However, the terms hereof shall in no way limit any remedies Buyer may have at law or equity.
INDEPENDENT CONTRACTORS
The relationship of Buyer and Vendor shall be that
of independent contractors, and nothing contained in this Purchase Order,
including these Terms and Conditions, nor any prior course of dealing shall be
construed to make either Buyer or Vendor a partner, exclusive distributor, joint
venturer, principal, agent, fiduciary or employee of
the other. The duration of the Purchase Order is definite and is limited
to the period and quantities expressly set forth therein. Multiple purchases or
releases under this Purchase Order or the purchase of Goods following the term
of this Purchase Order will not be deemed to create a contract of indefinite
duration. Buyer may, without penalty or obligation, obtain products of any kind
(including of the same kind as the Goods) from any supplier. Buyer makes no
representation or covenant, express or implied, that Buyer will make future
purchases of Goods from Vendor in any quantity or at all, and nothing in the
Purchase Order or these Terms and Conditions will be deemed to create any obligation
for Buyer to make any such purchase.
ASSIGNMENT; SUBCONTRACT; VENDORS
Vendor shall
not assign any part of this
Purchase Order, subcontract or delegate the fabrication or assembly of any major component or sub-assembly required
for the completion or delivery of the Goods,
without the express, prior
written consent
of Buyer. All vendors
and suppliers of equipment and supplies to be incorporated in, or utilized in the production of the Goods shall be subject
to the prior written approval
of Buyer. However, no consent or approvals given by Buyer hereunder shall relieve
Vendor of any of its representations, warranties, guarantees, or obligations hereunder. Seller shall be prohibited from using Chinese or
Indian parts or materials in the performance of this Purchase Order.
WAIVER
OF LIENS
Vendor hereby waives the right to file a mechanic’s or materialman’s lien, or claim or right of such lien which now exists or might otherwise
arise because of the labor or materials furnished
or to be furnished under this Purchase
Order. In the event
that any such liens are filed by subcontractors to Vendor, Vendor agrees
to remove same by posting
bond or otherwise, and shall indemnify
and hold harmless
Buyer from all costs and expenses,
including reasonable attorney’s fees, incurred by Buyer in connection therewith. Buyer reserves
the right to pay any of said sub-suppliers or subcontractors directly and deduct said amount from balance otherwise due Vendor. Vendor may be required to execute a release of lien and obtain a similar release
of lien from its sub-suppliers and subcontractors as a condition precedent to release
of any progress or final payment.
SET OFF
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 Vendor.
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.
PROGRESS PAYMENTS AND SECURITY
THEREFOR
If the Purchase Order provides for progress payments
prior to Buyers
Acceptance of the Goods, such progress payments
shall be credited
against the Purchase price.
To protect and preserve Buyer’s
interest in the Goods resulting
from such progress
payments, and as security for the obligations of Vendor under the Purchase
Order, Vendor hereby
grants to Buyer a first and prior lien and security interest
in the Goods. Vendor agrees to execute
and file in such appropriate offices and in such manner and form as Buyer, in its sole discretion, may require any security agreement and/or financing statement or other document
in order to create, protect,
preserve, or validate
the first lien and security
interest provided for hereunder. Buyer reserves the right to require additional security for the performance of Vendor’s obligations, including cash holdbacks, bank guarantees, performance bonds, or Letters of Credit. Buyer reserves
the right of offset for any claims arising hereunder
against amounts owed under this Purchase
Order or any other contract between Buyer and Vendor.
INVOICE TERMS
Unless otherwise stated by Buyer
in PO, all invoice payment terms are based from start date of receipt of Vendors Invoice
at Buyer’s offices and not from the date of Invoice. All invoices should be directed to the
attention of “Power Container Corp. Accounts Payable”.