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- Acceptance Agreement. This Purchase Order, including the Terms and Conditions, (collectively “Order”) supersedes all other agreements, oral or written, and all other communications between the parties suggesting additional or different terms. It represents the final and complete understanding of the parties and may be amended or cancelled only by written agreement signed by both parties. This Order expressly limits acceptance to these terms, and any proposal for the addition of different terms or any attempt by Seller to vary in any degrees any of the terms hereof is hereby deemed material and objected to and rejected. No terms of any document or forms submitted by Seller shall be effective to alter or add to the terms and conditions contained in this Order. Unless otherwise stated herein, Seller's acknowledgment of this Order or commencement of any work or performance of any services hereunder shall constitute acceptance by Seller of this Order and all of its terms and conditions.
- Delivery. Time is of the essence with respect to this Order. If the delivery of goods (“Goods”) or providing of services ("Services") purchased hereunder ("Services") is not completed within the specified time, Buyer may, in addition to any other rights or remedies it may have, terminate this Order, without liability, as to Goods not yet shipped or Services not provided and purchase substitute items or services and charge Seller for any extra costs. If, in order to comply with delivery date specified on the front hereof; Seller must ship by a more expensive way than specified herein, Seller shall pay any increased costs.
- Risk of Loss. Seller shall assume and pay for any loss or damage to the Goods covered by this order from any cause whatsoever until the Goods are delivered to Buyer at the F.O.B. point specified on the front hereof.
- Importation Costs. Seller shall be responsible for and shall bear all costs involved in obtaining all governmental permissions and authorizations necessary to the importation of the Goods.
- Warranties. Seller warrants that the Goods or Services purchased hereunder will be
(a) in full conformity with the specifications, drawings, descriptions and/or samples furnished or specified by Buyer,
(b) free from defects in material, workmanship and design/and (c) of good merchantable quality and fit and sufficient for the purposes intended. All warranties shall survive any inspection, delivery, acceptance, or payment. NO ATTEMPT BY SELLER TO DISCLAIM, EXCLUDE, LIMIT, OR MODIFY ANY WARRANTIES OR SELLER'S LIABILITY FOR DIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES SHALL BE OF ANY FORCE OR EFFECT. With respect to Goods or Services which are resold or otherwise transferred to a third party by Buyer, Buyer's customers shall have the full benefit of all warranties from Seller and its suppliers, whether hereunder or otherwise, and Seller agrees to any assignments of such warranties to such customers by Buyer.
- Inspection. All Goods are subject to inspection by an authorized representative of Buyer at all reasonable times and places, including during production. No Goods shall be considered accepted prior to inspection by Buyer at Buyer's place of business. Buyer reserves the right to reject or to revoke acceptance of Goods which fail to meet any requirement of the Order, notwithstanding an) payment or any prior inspection or test.
- Indemnification. Seller shall indemnify, defend and hold harmless Buyer from and against any and all loss, cost, damage, expense, claim, or cause of action (including attorneys' fees) resulting from or in any way arising out of any defect in the Goods or Services or any act or omission of Seller, its agents, employees or subcontractors or any persons acting for it on its behalf. This indemnification is in addition to the warranty obligations of Seller.
- Patents. Seller warrants that the manufacture, sale and use of the Goods will not infringe any patent, copyright, trademark, or trade secret. Seller shall defend, at its expense, any claim or suit brought against Buyer or Buyer's customers on account of any such infringement or alleged infringement and shall indemnify, defend and hold harmless Buyer and its customers from and against all loss, cost, damage, expense, claim, action or cause of action (including attorneys' fees) resulting from such or in any way arising out of such infringement or alleged infringement. If all or any portion of the Goods are held to constitute an infringement of a patent and/or their use is enjoined for any reason, Seller shall promptly, and at its own expense, either procure for Buyer the right to continue using such Goods royalty-free or replace such Goods to Buyer's satisfaction with non-infringing goods of equal quality and performance.
(a) Seller shall remain in force, and shall continue to maintain in force, insurance (in amounts and coverage satisfactory to Buyer) sufficient to cover any and all product liability claims and product warranty claims which may be brought with respect to the Goods or Services, whether by Buyer or any third party.
(b) If this Order covers construction work, installation or, repair of machinery or equipment, or performance of services, prior to the commencement of work hereunder, Seller shall furnish Buyer with a Certificate of Insurance, in amounts and coverage satisfactory to Buyer, evidencing Sellers bodily injury and property damage liability insurance and Worker's Compensation insurance covering Seller's liability in the state in which the work or services covered by this Order are to be performed. Said Certificate of Insurance will provide that the insurance issued to Seller will not be cancelled before the completion of the work or services covered by this Order without thirty days prior written notice to Buyer. At Buyer's request, Seller shall before final payment, furnish Buyer with a lien waiver and sworn statement that all subcontractors, laborers, and material suppliers have been paid in full.
- Changes. Buyer shall have the right at any time to make changes in drawings, specifications, materials, packaging, time and place of delivery, and method of transportation. If any such changes cause an increase or decrease in the cost or the time required for the performance, an equitable adjustment shall be made therein, and this Order shall be modified in writing accordingly. Seller agrees to accept any such changes subject to this section.
- Set Offs. Buyer has the right to set off against any amounts due Seller hereunder any amounts owed to Buyer by Seller arising from any other transaction.
- Force Majeure. Buyer shall not be liable for failure to take delivery of the Goods or to allow performance of the Services if such failure or inability is due to causes beyond Buyer's reasonable control.
- Termination for Cause.
(a) Buyer may terminate this Order without liability, in whole or in part, at any time, if
(i) Seller fails to deliver the Goods or to perform the Services covered hereby at the time specified on the front hereof or any extension thereof authorized by Buyer in writing,
(ii) a petition initiating a proceeding under any applicable law relating to bankruptcy, insolvency, or reorganization is filed by or against Seller,
(iii) Seller executes an assignment for benefit or creditors,
(iv) a receiver is appointed for Seller or any substantial part of its assets, or
(v) Buyer shall have any reasonable ground for insecurity with respect to Seller's ability to perform and Seller is unable to provide Buyer with adequate assurance of its ability to perform within ten days after written request therefor by Buyer.
(b) Buyer's right to terminate this Order is not an exclusive remedy. Buyer shall be entitled to all other rights and remedies it may either at law or in equity. No termination of this Order shall affect any accrued rights or obligations of either party as of the effective date of such termination.
- Termination for Convenience of Buyer. Buyer may terminate this Order at its convenience at any time by written notice to Seller. In such event, Seller may claim only properly documented out-of-pocket costs for work already performed. For specially prepared products which are unique to Buyer's order, any partially completed work or raw materials whose full costs are included in the cancellation charges shall be identified in writing and held by Seller for disposition in accordance with Buyer's written instructions.
- Safety and Health. To the extent that it is within Seller's control, Seller hereby warrants that the Goods sold hereunder meet all requirements of the Occupational Safety and Health Act of 1970, the Toxic Substances Control Act, the Federal Food, Drug and Cosmetic Act, as amended, and all standards and regulations issued thereunder, as well as all other federal, state, and local laws and regulations pertaining to safety and health.
- Waiver. Failure of Buyer at any time to require Seller's performance of any obligation under this Order shall not affect Buyer's right to require performance of that obligation. Any waiver by Buyer of any breach of any provision hereof must be in writing and shall not be construed as a waiver of any continuing or succeeding breach of such provision, a waiver or modification of this provision itself, or a waiver or modification of any light under this Order.
- Assignment. Seller shall not assign this Order or any monies due or to become due hereunder, without Buyer's prior written consent, and any attempted assignment without Buyer's prior written consent shall constitute a material breach of this Order.
- Compliance. Seller shall comply with all applicable federal, state and local laws, orders, and regulations regarding the perfom1ance of Services and/or sale of Goods hereunder, including (without limitation) the following unless exempt: Executive Order 11246; the Rehabilitation Act of 1973; and the Vietnam Era Veterans' Readjustment Assistance Act of 1974.
- Miscellaneous. This Order shall be construed in accordance with the laws of Ohio, without regard to its rules on conflicts of laws. The section headings contained herein are not part of this Order, but are included solely for the convenience of the parties.