Terms of Service
ACCEPTANCE: The contract between Purchaser and Seller (“Purchase Order”) shall consist of the terms written on the face hereof, these printed terms and conditions and any detailed specifications, drawings and samples specifically incorporated by reference on the face hereof. Seller’s acknowledgement of receipt of this Purchase Order, or shipment of goods or commencement of services ordered hereunder, shall constitute acceptance of the Purchase Order. Purchaser hereby objects to any different or additional terms in any proposal, acknowledgement, acceptance, or other instrument of the Seller. Purchaser’s acceptance of any instrument of Seller is expressly conditioned on Seller’s assent to any additional or different terms included in these printed terms and conditions or written on the face hereof. In the event of conflict between the terms written on the face hereof and these printed terms and conditions, the terms written on the face hereof shall prevail.
DELIVERY: THE TIME OF DELIVERY IS OF THE ESSENCE. IF A TENDER OF CONFORMING GOODS IS NOT MADE BY THE SCHEDULED DELIVERY DATE, SELLER SHALL HAVE NO RIGHT TO MAKE LATER CONFORMING TENDER. Seller shall promptly notify Purchaser immediately in writing of any delay or threatened delay in Seller’s performance under the Purchase Order and Purchaser reserves the right, in order to maintain the scheduled delivery date, to require Seller to expedite delivery. Additional costs attributable to such expedited delivery shall be paid by Seller. Seller shall be liable for all resulting damages to Purchaser and any customers occasioned by delay in delivery. Delivery shall not be deemed to be complete until the goods have been actually received and accepted by Purchaser. Purchaser may cancel this Purchase Order in whole or in part without any liability if the delivery or completion date(s) in the Purchase Order are not satisfied. If Purchaser exercises its option to cancel this Purchase Order, the provisions of Paragraph 7 hereof shall apply. In addition, Seller shall not be relieved under any circumstances of the obligation to procure alternative suppliers or materials with respect to subcontracted or purchased labor, materials or services, except by written consent of Purchaser.
APPROVAL OF DESIGNS, DRAWINGS AND PROCEDURES: Purchaser’s approval of Seller supplied drawings, manufacturing procedures, calculations, and other documents shall not relieve the Seller of any responsibility for the goods delivered or services performed hereunder or any requirements or warranties under the Purchase Order whether express or implied.
INSPECTION: Purchaser, or its representatives, shall have the right to inspect and test the goods or services ordered hereunder at any time prior to delivery or performance, and to finally inspect such goods and results of such services within a reasonable time after delivery at the ultimate destination or completion of their performance. The goods and services shall not be deemed accepted until after such final inspection. The making or failure to make any inspection of, or payment for, or acceptance of, the goods or services, shall in no way impair Purchaser’s right to reject or revoke its acceptance of nonconforming goods and services or to seek any other remedies to which Purchaser may be entitled.
WARRANTY: Seller warrants that the goods delivered, and services rendered, pursuant to this Purchase Order are free from all defects in design, workmanship, and material, are in strict conformance with the specifications, drawings and samples in the Purchase Order, and are new, of merchantable quality and fit for the purposes for which they are intended. Seller agrees to promptly repair or replace, at Purchaser’s option and without cost to Purchaser, any goods delivered, and services rendered, which shall be found by Purchaser to be defective, non-conforming or otherwise not in accordance with this warranty within the later of (a) one year after commencement of use of the goods or services by the ultimate user thereof, or (b) in the case of goods, eighteen months after the date of delivery by Seller of the goods to Purchaser or to Purchaser’s customer. Seller agrees that all warranties of Seller on goods delivered, and services rendered, under this Purchase Order shall extend to, and be for the benefit of, Purchaser and Purchaser’s customers.
CHANGES: Purchaser shall have the right to make any changes in the work ordered under this Purchase Order, and Seller agrees to perform this Purchase Order in accordance therewith. If in Seller’s opinion such changes will cause an increase or decrease in the cost of, or time required for, performance hereunder, Seller shall notify Purchaser promptly. If additional cost or time is required, Seller shall not proceed without written authorization from Purchaser and if Purchaser directs Seller to proceed, Purchaser shall make an equitable adjustment in the price and delivery/completion schedule.
7.1 Purchaser may, by written notice to Seller, cancel this Purchase Order, or any part of it, upon the occurrence of any of the following events (“Events of Default”):
(a) Seller fails fully to perform any of its obligations under the Purchase Order, including without limitation, the timeliness of delivery, the conformity of goods delivered or conformity with any express or implied warranty hereunder;
(b) The commencement of an involuntary case or the filing of a petition against Seller (i) seeking reorganization, arrangement, adjustment or composition of or in respect of Seller under the Federal Bankruptcy Code as now or hereafter constituted, or under any other applicable Federal or state bankruptcy, insolvency, reorganization or other similar law, (ii) seeking the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of Seller for any part of its property, or (iii) seeking the winding up or liquidation of its affairs, and such involuntary case or petition is not dismissed within thirty calendar days after the filing thereof;
(c) The commencement by Seller of a voluntary case or the institution by Seller of proceedings to be adjudicated as bankrupt or insolvent, or the consent by it to the institution of bankruptcy or insolvency proceedings against it, under the Federal Bankruptcy Code as now or hereafter constituted, or any other applicable Federal or state bankruptcy or insolvency or other similar law;
(d) The consent by Seller to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of Seller for any substantial part of its property;
(e) The making by Seller of any assignment for the benefit of creditors;
(f) The admission by Seller in writing of its inability to pay its debts generally as they become due or the failure of Seller to generally pay its debts as such become due;
(g) The taking of any corporate action by Seller or its shareholder or Board of directors or any committee thereof in furtherance of any of the foregoing; or
(h) Purchaser in its reasonable opinion believes that Seller’s ability to perform this Purchase Order is in danger or impaired. In the event of such cancellation, Purchaser shall have the rights and remedies set forth in paragraph
7.2 below and Purchaser’s sole liability to Seller shall be for conforming goods completed and delivered to Purchaser in accordance with this Purchase Order. Whenever Purchaser has the right to demand of Seller adequate assurance of due performance, Purchaser shall be sole judge of the adequacy of assurance given by Seller.
7.2. If an Event of Default occurs, Purchaser shall, in addition to the right of cancellation, be entitled to all remedies for a breach of contract set forth in the Uniform Commercial Code and all other remedies available at law or in equity. Additionally, Purchaser may, at its option:(a) Refuse to accept delivery of the goods;
(b) Refuse to accept a subsequent tender of substitute, conforming goods;
(c) Return nonconforming or late delivered goods to Seller at Seller’s expense and, at Purchaser’s option, either recover all payments made therefore and expenses incident thereto, or at Seller’s expense, receive replacement therefore;
(d) Recover any advance payments from Seller for undelivered goods;
(e) Rework the goods to make the goods conform to the warranties and charge Seller for the expense therefore;
(f) Use the goods for a purpose other than the purpose originally intended and charge Seller for the amount by which the purchase price exceeds the price of goods normally required for such alternative purposes;
(g) Have Seller repair or replace defective goods at Seller’s expense; or
(h) If defective goods are repaired or replaced by Purchaser or Seller, charge Seller for all costs and expenses of repairing or restoring non-defective work or goods disturbed as a consequence of repairing or replacing defective goods.Purchaser shall be entitled to exercise any or all of the remedies specified above or each of such remedies in part, provided, however, that Purchaser shall not be permitted to recover more than once for any part of a performance called for in the Purchase Order. NONE OF THE REMEDIES AVAILABLE TO PURCHASER HEREUNDER MAY BE LIMITED EXCEPT TO THE EXTENT AND IN THE MANNER AGREED UPON BY PURCHASER IN A SEPARATE AGREEMENT SPECIFICALLY DESIGNATING SUCH LIMITATION AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF PURCHASER.
TITLE AND RISK OF LOSS: Seller agrees to deliver to the Purchaser title to the goods covered by this Purchase Order, free and clear of all liens, claims and encumbrances. Title and risk of loss to goods delivered hereunder shall pass to Purchaser upon receipt by Purchaser at Purchaser’s plant or at another delivery location designated by Purchaser, unless otherwise agreed in writing.
COMPLIANCE: Seller warrants that all goods delivered, and services rendered hereunder shall be in strict compliance with all applicable laws and regulations to which the goods and services are subject, including the Williams-Steiger Occupational Safety and Health Act of 1970, as amended. Seller shall indemnify and hold harmless the Purchaser and the Purchaser’s customers from all loss, liability and fines incurred by any of them as a result of Seller’s failure to so comply.
INDEMNIFICATION: Seller assumes the entire responsibility and liability for, and agrees to indemnify, defend and hold harmless Purchaser, its shareholders, directors, officers, agents, employees, successors, and assigns from and against any and all losses, expenses (including without limitation, attorneys’ and other professional fees), costs, damages (including consequential and incidental damages), demands, judgments, liabilities, suits and claims in connection with or arising out of any actual or alleged personal injury (including death) or damage or destruction to property (including loss of use) by whomsoever suffered, sustained or alleged to have been sustained by reason of any act, error or omission, whether negligent or not, of Seller or its agents, employees, suppliers, subcontractors and consultants.
PATENTS, TRADE SECRETS, COPYRIGHTS AND TRADEMARKS: Seller represents and warrants that all products delivered, and services performed, pursuant to this Purchase Order and the sale or use thereof do not infringe any patent, trade secret, copyright or trademark, and that Seller will at Seller’s expense, defend, indemnify, and hold harmless Purchaser and Purchaser’s customers from and against all claims, demands, actions and liability based on alleged or actual infringement thereof. Purchaser, at its option, may require Seller to deliver non-infringing goods or services, to modify Seller’s goods and services so as to become non-infringing, to procure for Purchaser the right to continue using Seller’s infringing goods and services, or in the case of goods to refund the purchase price thereof upon the return by Purchaser of the infringing goods.
ASSIGNMENT, DELEGATION AND SUBCONTRACTING: Seller shall not assign, delegate, or subcontract this Purchase Order in whole or any part thereof without the Purchaser’s prior written consent. Any such assignment, delegation or subcontracting without the Purchaser’s prior written consent shall be void. Seller’s purchase of raw materials or standard commercial articles shall not be deemed a subcontract.
PROPRIETARY INFORMATION/TITLE TO DRAWINGS AND OTHER TECHNICAL INFORMATION:
13.1 As used herein, “Proprietary Information” means all business and technical information which is made available, directly or indirectly, to Seller by Purchaser, and all information acquired, developed, or disclosed by Purchaser to Seller arising out of this Purchase Order, including, but not limited to, all reports, drawings, specifications, computer programs, computer analyses, drawings and other technical information disclosed by Purchaser to Seller hereunder. Seller agrees that Purchaser shall own, solely and exclusively, all Proprietary Information and, except as provided for hereinbelow, Seller agrees to maintain Proprietary Information in strict confidence and not to use it for parties or concerns other than Seller without the express written consent of Purchaser. The obligation of confidentiality shall not be imposed upon Proprietary Information which: (i) is part of the public domain at the time of disclosure by Purchaser to Seller hereunder; (ii) was in the possession of Seller at the time of disclosure hereunder and was not acquired bySeller, directly or indirectly, from Purchaser; (iii) becomes part of the public domain through no fault or action on the part of Seller. Seller shall not copy, photograph, Xerox, reduce to writing or otherwise reproduce any Proprietary Information received from Purchaser or acquired on behalf of Purchaser, except as may be required to instruct Seller’s employees in the manufacture of the subject matter of the Purchase Order.
13.2 The property interest in any drawings or other technical information which Purchaser supplies to Seller shall remain the sole and exclusive property of Purchaser and Seller shall not disclose such drawings and information to others without Purchaser’s prior written consent.
13.3 Any information furnished by Seller to Purchaser in connection with the purchase of goods hereunder shall not be deemed to be confidential information and shall be acquired free from any restriction as part of the consideration for this Purchase Order.
APPLICABLE LAW: Unless otherwise provided on the face hereof, this Purchase Order shall be governed in all respects in accordance with the laws of the Commonwealth of Pennsylvania, without giving effect to principles of choice of law thereof.
INSURANCE: AES shall be named as an Additional Insured on subcontractor’s General Liability and Business Automobile insurance policies, with coverage limits acceptable to AES.
NOTICES: All notices, requests, demands and other communications required or permitted hereunder shall be in writing and shall be deemed to have been duly given, made and received when personally delivered against or upon actual receipt by registered or certified mail, postage and fees prepaid, return receipt requested, to the respective addressee of the parties listed on the Purchase Order. Any party may alter the address to which communications or copies are sent by giving notice of such change of address in conformity with the provisions of this paragraph.
MODIFICATION: No modification of this Purchase Order shall be effective unless accepted in a written Change Order signed by an authorized representative of Purchaser.
ENTIRE AGREEMENT: When accepted, this Purchase Order will constitute the complete and exclusive statement of the terms of the contract between the parties hereto and is intended as a final expression of the terms of such contract and will supersede all prior and contemporaneous agreements, inducements or conditions, express or implied, oral or written. No course of prior dealing between the parties and no usage of trade shall be relevant to supplement or explain any term herein. Purchaser’s acceptance or acquiescence in a course of performance rendered by Seller hereunder shall not be relevant to determine the meaning of this contract even though Purchaser has knowledge of the nature of the performance and opportunity for objection.
19.1 Seller shall be bound by any representation or undertaking made by any of its agents or employees with respect to the specifications, quality, packaging, price or conditions of delivery of the goods. By accepting this Purchase Order, Seller ratifies any such representation or undertaking made by any of its agents or employees.
19.2 In the event that any provision of this Purchase Order is declared invalid by any tribunal or law, the remainder of the provisions shall not be affected thereby, and each term and provision not declared invalid or unenforceable shall be valid and shall be enforced to the fullest extent permitted by law.
19.3 This Purchase Order shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
19.4 No claim or right arising out of a breach of the Purchase Order by Seller may be discharged in whole or in part by a waiver of the claim or right, unless the waiver is in writing signed by an authorized representative of Purchaser. Purchaser’s waiver or acceptance of any breach by Seller of any provisions of the Purchase Order shall not constitute a waiver of or an excuse for nonperformance as to any other provision of the Purchase Order nor as to any prior or subsequent breach of the same provision.