POWER CONTAINER CORP.
STANDARD TERMS AND CONDITIONS
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.
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.
The quantity specified represents the amount to be supplied. Buyer has the option to return excess shipments at Vendor’s risk and expense.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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”.