Except where the context indicates otherwise, the term “Buyer” means Saneck International. The term “Seller” means the legal entity contracting with the Buyer.
1. Acceptance and Modification
This order becomes a binding contract, subject to the terms and conditions thereof, upon the Seller signing the acknowledgment of the order and returning signed copy to the Buyer; the Seller notifies the Buyer that Seller intends to commence performance of the order; the Seller commences performance of the order. Any modification of this order, to be valid, must be in writing and signed by Buyer’s authorized purchasing representative. Any acknowledgment form or other form of Seller containing terms and conditions of sale submitted by Seller to Buyer shall not have the effect of modifying the terms and conditions hereof. Buyer will consider Seller’s request for changes only if such request is made in writing and directed to specific clauses in this order. No change shall be binding upon Buyer unless specifically accepted in writing.
2. Packing and Shipment
Deliveries shall be made as specified, without charge for boxing, crating, carting or storage unless otherwise specified, and material shall be suitably packed to secure lowest transportation costs and in accordance with the requirements of common carriers. Buyer’s purchase order number and bill of lading reference must appear on each invoice. Buyer’s count or weight shall be final and conclusive on shipments not accompanied by packing lists. Deliveries are F.O.B. destination unless otherwise specified in writing by Buyer. When the shipment is F.O.B. destination, title, and risk of loss and damage shall remain with Seller until delivery to Buyer’s place of business and Buyer shall not be required to serve any claims against any carrier. No partial shipments are allowed without Buyer’s prior written approval.
All articles will be subject to final inspection and approval by Buyer after delivery, notwithstanding prior payment, it being expressly agreed that payment shall not constitute final acceptance. Buyer may reject any article, which contains defective material or workmanship or does not conform to specifications or samples. Buyer may reject the entire shipment where it consists of a quantity of similar articles, and sample inspection discloses that the articles inspected contain defective material or workmanship or do not conform to specifications or samples unless Seller agrees to reimburse Buyer for the cost of a complete inspection of the articles included in such shipment. Rejected articles may be returned at Seller’s risk and expense at the full invoice price plus applicable transportation charges if any. No replacement of defective material shall be made unless specified by Buyer.
Seller warrants that all material and work covered by this order will conform to the specifications, drawings, symbols or other description furnished or specified by Buyer and will be merchantable, of good material and workmanship and free from defect. Seller further warrants that all material covered by this order, which is the product of Seller or is in accord with Seller’s specifications, will be fit and sufficient for the purposes intended. The warranty period shall be that provided by applicable law, except that if Supplier offers a longer warranty to its customers for such goods, such longer period shall apply.
Time is of the essence in this order. Production schedules at Buyer are dependent upon the delivery dates specified herein, and delays will substantially impair the value of the contract. Seller shall bear any premium shipping costs necessary to meet contractual delivery schedule. Seller shall report any anticipated delay immediately for whatever cause, including labor disputes, material shortages or other events affecting delivery. Buyer reserves the right to terminate this order without further liability to Buyer for the anticipated delay and/or for any untimely delivery. Advanced shipments may not be made without Buyer’s prior authorization.
6. Special Tooling
(a) Unless otherwise herein agreed, special tools, dies, jigs, molds, fixtures and patterns (“Special Tooling”) used in the manufacture of said articles shall be furnished by and at the expense of Seller, shall be kept in good condition and, when necessary, shall be replaced by Seller without expense to Buyer. Buyer may at any time reimburse Seller for the cost of the special tooling and replacements and become the owner and entitled to the possession of same; (b) If the price stated on the face hereof includes separately the cost of any special tooling fabricated or acquired by Seller for the specific purpose of filing this order, such special tooling shall become the property of Buyer and, to the extent feasible, shall be properly identified by Seller as such. Seller shall at its own expense maintain such special tooling in proper working conditions during the period it is required for the performance of this order. When this order has been completed, such special tooling shall be disposed of as Buyer may direct.
7. Buyer Furnished Material
Any material furnished by Buyer on other than a charge basis in connection with this order will be deemed held by the Seller for mutual benefit and title thereto shall at all times remain in the Buyer, and Seller agrees to pay for all such materials spoiled by it or not otherwise satisfactorily accounted for.
8. Insurance and Taxes
(a) Seller agrees to procure a policy or policies of insurance in form satisfactory to Buyer, insuring to the full insurable value thereof, all property on Seller’s premises owned by Buyer against loss or damage resulting from fire (including extended coverage), malicious mischief and vandalism. Satisfactory evidence of procurement of such insurance shall be submitted to Buyer upon request of Buyer, but failure to request such evidence does not relieve Seller of the obligation to maintain adequate insurance coverage. (b) Seller agrees to assume and pay all taxes assessed against Buyer’s property while in the possession of Seller and to file all necessary declarations and reports in connection therewith.
If the articles to be furnished hereunder are to be specifically manufactured in accordance with Buyer’s drawings and specifications, Buyer may, by written order, make changes in drawings or specifications. Any difference in price or time for performance resulting from such changes shall be equitably adjusted and the order modified in writing accordingly.
Seller shall not, without first obtaining the written consent of Buyer, in any manner advertise or publish the fact that Seller has furnished or contracted to furnish to Buyer the articles herein mentioned.
11. Intellectual Property
Seller guarantees that the sale or use of Seller’s products will not infringe any United States (U.S.) or foreign patent, trademark, copyright, industrial decision right, or misuse or misappropriation of trade secret and Seller shall hold Buyer harmless from all judgments and decrees that may be entered against Buyer or Buyer’s vendees, mediate or immediate, and against all costs and expenses that Buyer shall incur by reason of any infringement or claim thereof whether such infringement be direct or contributory and Seller covenants that it will upon Buyer’s request, at Seller’s expense, defend or assist in the defense of any suit or action that may be brought against Buyer or Buyer’s vendees, mediate or immediate, or against those selling or using Seller’s products by reason of any infringement or claim thereof predicated upon the sale or use of Seller’s products.
Prices shall be firm and not subject to adjustment or variation. Supplier warrants that the prices herein specified are as low as any net prices now given by Supplier to any other customer for goods or services of like grade and quality in like quantities, and Supplier agrees that if at any time during the pendency of an applicable Order lower net prices are quoted under similar conditions, said lower net prices shall be from that time substituted for the prices in such Order. Supplier agrees that any price reductions made in the goods or services covered by such Order subsequent to its acceptance but prior to payment thereof will be applicable to such Order.
Buyer agrees to pay Seller the invoice amount within 5 business days of order shipment via wire transfer (TT) in U.S. currency unless a written agreement between Buyer and Seller states otherwise.
14. Compliance with Applicable Laws
Seller agrees that, in the performance hereof, it will comply with all applicable laws, statutes, rules, regulations or orders of their local government and the United States Government or of any state or political subdivision thereof, and same shall be deemed incorporated herein by reference.
15. HASCOM REPORTING
If any of the items ordered herein constitute or contain “hazardous or toxic chemicals” as defined by any applicable federal, state or local law, rule or regulation, Seller shall provide at the time of delivery all required notices and information, including without limitation all Material Safety Data Sheets (“MSDS”) in approved form. Seller agrees to maintain such information current and shall provide Buyer with any amended, altered or revised information on a timely basis. When this Order, or the specifications referred to herein, requires documentation or certification, this requirement is a material requirement of this Order; Seller’s failure to provide such information prior to or at the time of delivery may result in a withholding of payment until such is provided.
When this order or the specifications referred to herein, requires documentation or certification, this requirement is a material requirement of this order and Seller’s failure to provide such information prior to or at the time of delivery shall entitle Buyer to withhold payment until such documentation or certification is provided by Seller.
Buyer reserves the right to cancel all or any part of the undelivered portion of this order if Seller does not make deliveries as specified in the schedules or if Seller breaches any of the terms hereof, including the warranties of Seller. Buyer shall also have the right to terminate this order or any part thereof in the event of the happening of any of the following insolvency of Seller filing a voluntary petition in bankruptcy: filing of an involuntary petition to have Seller declared bankrupt, provided it is not vacated within thirty (30) days from the date of filing, the appointment of a receiver or trustee for Seller provided such appointment is not vacated within thirty (30) days from the date of such appointment, or the execution by Seller of an assignment for the benefit of creditors. The remedies provided in this section shall be cumulative and additional to any other or further remedies provided in law or equity.
18. Customs; Export Controls
Credits or benefits resulting or arising from any Order, including trade credits, export credits or the refund of duties, taxes or fees, shall belong to the Buyer. Supplier shall provide all information necessary (including written documentation and electronic transaction records) to permit Buyer to receive such benefits or credits, as well as to fulfill its customs-related obligations, origin marking or labeling requirements and local content origin requirements, if any. Export licenses or authorizations necessary for the export of goods shall be the responsibility of Supplier unless otherwise indicated in an Order, in which event Supplier shall provide such information as may be necessary to enable Buyer to obtain such licenses or authorization(s). Supplier shall undertake such arrangements as may be necessary for goods to be covered by any duty deferral or free trade zone program(s) of the country of import.
To the fullest extent permitted by law, Seller agrees to indemnify, save harmless, and defend Buyer and its affiliated companies, their customers, directors, officers, employees and agents, from and against any loss, liability, cost, expenses, suits, actions, claims and all other obligations and proceedings whatsoever, including without limitation, all judgments rendered against, and all fines and penalties imposed upon Buyer and any reasonable attorney’s fees and any other cost of litigation (hereinafter collectively referred to as “liabilities”) arising out of injuries to persons, including death, or damage to property, caused by Seller, its employees, agents, subcontractors, or in any way attributable to the performance and prosecution of the work herein contracted for, including without limitation breach of warranty or product liability except that Seller’s obligation herein to indemnify Buyer shall not apply to any liabilities arising from Buyer’s sole negligence. Seller agrees to expressly waive its immunity, if any, under the applicable workers’ compensation law if such immunity may affect this indemnification obligation.
20. Entire Agreement
Each Purchase Order, together with the attachments, exhibits, supplements or other terms of Buyer specifically referenced in such Purchase Order, constitute the entire agreement between Supplier and Buyer with respect to the subject matter to which such Purchase Order relates and shall supersede all prior oral or written representations and agreements with respect to such subject matter.