Acceptance - Agreement. The offer to purchase by the Purchaser described on the Purchase Order the products described on Purchaser's Purchase Order (the "Products") is hereby made subject to the terms and conditions contained herein. Seller's commencement of work on, or shipment of, the Products subject to the Purchase Order, whichever occurs first, constitutes Seller's acceptance of the terms and conditions herein and will form the contract between the parties thereof. Any proposal for additional or different terms or any attempt by Seller to vary in any degree any of the terms and conditions of the offer except with the express written consent of Purchaser is hereby objected to and rejected. If the Purchase Order is deemed an acceptance of a prior offer by Seller, such acceptance is limited to the express terms contained herein and additional or different terms or any attempt by Seller to vary in any degree any of the terms of this contract shall be deemed material and are hereby objected to and rejected.
Delivery. Purchaser's production schedules are based upon Seller's undertaking to ensure that the Products will be delivered to the Purchaser's plant no later than the required date specified on the Purchase Order. Seller shall strictly comply with Purchaser's shipping instruction and delivery schedule. If at any time Seller believes that the Products will not be made or delivered as scheduled, Seller shall immediately give written notice thereof to Purchaser. If delivery of the Products or rendering of services is not completed within the time specified on the Purchase Order, Purchaser reserves the right without liability, in addition to its other rights and remedies, to terminate this contract by notice effective when received by Seller as to Products not yet shipped or services not yet rendered, to refuse to accept such Products and to purchase substitute Products or obtain services elsewhere. All Products shall be suitably packaged at Seller's cost to avoid damage. Seller shall be liable to Purchaser for any excess costs or expenses incurred by Purchaser as a result of any breach hereof, including, but not limited to, any costs incurred by Purchaser in effecting cover.
Title/Risk of Loss. Title to the Products shall pass to Purchaser upon identification of the Products to the contract. Unless otherwise set forth in this contract, risk of loss shall pass to the Purchaser upon its actual receipt of the Products.
Price. Seller represents that the prices shown on the Purchase Order are complete and no additional charges (such as, but not limited to, taxes, packaging, labeling, storage or insurance) shall be added without Purchaser's express written consent. Seller also represents that the prices charged for the Products are the lowest prices charged by Seller to Purchasers of a class similar to Purchaser under conditions similar to those specified in the Purchase Order and this contract. Seller agrees that any price reduction in the Products covered by the Purchase Order occurring subsequent to the date thereof will be applicable to the Purchase Order and this contract.
Warranty. Seller expressly warrants that all Products or services furnished pursuant to the Purchase Order (a) shall conform to all drawings, specifications, descriptions, samples, and express statements made by Seller, and standards furnished or specified by Purchaser to Seller, (b) shall be new, of good quality and/or workmanship and free from all defects, latent or patent, (c) be in strict compliance with governmental regulations and be produced by experienced and well trained personnel in a professional and workmanlike manner in accordance with industry best practice, and (d) if a product of Seller, or purchased in accordance with Seller's specifications, shall be suitable and sufficient for Purchaser's intended purpose. Seller warrants that all Products or services furnished pursuant to the Purchase Order will be merchantable, and will be safe and appropriate for the purpose for which Products or services of that kind are normally used. This warranty shall run in favor of Purchaser, its successors, assigns and customers, and users of its Products. Seller, at Purchaser's option upon written notice, agrees to replace or repair, at its expense, any Products which fail to comply with this warranty. This option is not exclusive, and Purchaser may exercise any other rights, either alone or in conjunction with this option, to fully remedy any breach of this warranty by Seller.
Patents. Seller warrants that the Products covered by this contract and the sale and use of them will not infringe any United States or foreign patents or trademarks. Seller agrees to defend, protect and save harmless Purchaser, its successors, assigns, agents, customers, or other users of its products against any and all claims, damages, fines, penalties, actions, lawsuits, costs, expenses, losses of any kind or nature, and any court costs of defense or settlement thereof, including attorneys' fees (collectively, the "Claims") resulting from any actual or alleged infringement of any patents or trademarks by reason of the sale or use of the Products. Purchaser reserves the right upon written notice to Seller to be represented by its own counsel and to actively participate in the defense of such Claims and the costs of such representation shall be paid by Seller.
Inspection/Testing. Acceptance of the Products purchased hereunder is subject to Purchaser's inspection and approval at Purchaser's location. Purchaser shall have the right to reject, refuse, revoke acceptance of, or return, at Seller's expense, any or all of the Products defective in material or workmanship or nonconforming to the terms of the Purchase Order. Purchaser, at its option, may charge Seller for the cost of unpacking, examining, inspecting, repacking and returning the Products to Seller. Payment for any Products hereunder shall not be deemed acceptance hereof.
Changes. Purchaser shall have the right at any time to make changes in drawings, designs, specifications, materials, packaging, time and place of delivery, and method of transportation of the Products. If any such changes shall cause an increase or decrease in the cost of the Products to Seller, or a change in the time required for Seller to perform its obligations hereunder, Seller and Purchaser shall in good faith endeavor to make a reasonable adjustment to the terms hereof and the Purchase Order and shall modify the Purchase Order in writing accordingly, provided, however, no adjustment to cost of the Products shall be made unless Seller shall have provided Purchaser with a written request for adjustment within a reasonable time after Purchaser's request for change and such adjustment is limited to compensating Seller for the increased costs of materials and other direct costs necessarily incurred as a result of the changes. Seller agrees to accept any such changes subject to this paragraph.
Insurance. In the event that Seller is required under the Purchase Order to perform services by Seller, or any of its employees or agents, on Purchaser's property, or the property of Purchaser's customers, the Seller 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 Purchaser. Seller shall maintain all necessary insurance coverages, including general liability and Worker's Compensation insurance. Seller shall indemnify, defend and save harmless Purchaser from any and all claims or liabilities arising out of the services performed by Seller's employees or agents hereunder.
Labor Laws. Seller shall comply with all federal, state and local laws, executive orders, regulations and all municipal ordinances and regulations in performing its obligations under this contract. Seller warrants that the Products covered by this contract will be produced in compliance with the Fair Labor Standards Act of 1938, as amended.
Installment Contract. If the Products are to be shipped on an installment basis per Purchaser's releases, Purchaser shall not be liable for any Products processed in excess of releases issued by Purchaser, and any such Products shipped without releases may, at Purchaser's option, be refused by Purchaser, stored by Purchaser for Seller's account or returned to Seller at its expense.
Proprietary Information/Confidentiality. Seller agrees to keep all information (including drawings and specifications) furnished to it by Purchaser 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 its obligations under this contract. Seller shall not advertise or publish the fact that Purchaser has contracted to purchase Products from Seller, nor shall any information relating to the Purchase Order be disclosed without Purchaser's express written permission. Seller acknowledges that money damages would be an insufficient remedy for any breach of this obligation and that any such breach would cause Purchaser irreparable harm. Accordingly, Seller agrees that Purchaser shall be entitled to injunctive relief for any breach or threatened breach of this obligation and agrees not to oppose the granting of such relief. Unless otherwise agreed in writing, no commercial, financial or technical information disclosed in any manner or at any time by Seller to Purchaser shall be deemed secret or confidential and Seller shall have no rights against Purchaser with respect thereto.
Termination for Convenience of Purchaser. Purchaser reserves the right to terminate the Purchase Order and this contract or any part thereof or hereof for its sole convenience. In the event of such termination, Seller shall immediately stop all work hereunder, and shall immediately cause all of its suppliers or subcontractors to similarly stop all such work. Seller shall be paid a reasonable termination charge based upon its actual work performed prior to receiving the notice of termination plus actual direct costs resulting from the termination provided, however, in no event shall Purchaser be liable for any indirect costs including, but not limited to, loss of anticipated profit, unabsorbed overhead, rearrangement costs, unamortized depreciation costs, general and administrative burden charges, or interest on claims. Seller shall not be paid for any work done or costs incurred, direct or indirect, after its receipt of the notice of termination.
Termination for Cause. Purchaser may also terminate the Purchase order and this contract or any part thereof and hereof for cause upon the occurrence of any of the following events of default: (a) death, dissolution, termination of existence, insolvency, business failure, appointment of a receiver of any part of the property of, assignment for the benefits of creditors by or the commencement of any proceedings under any bankruptcy, insolvency, or reorganization laws by or against Seller; (b) if Seller breaches any of the terms or conditions hereof, including any of its warranties; or, (c) if Seller does not replace any defective product within a reasonable time after receipt of written notice from Purchaser as set forth herein. In the event of such a termination, Purchaser shall not be liable to Seller for any amount, and Seller shall be liable to Purchaser for any and all damages sustained by Purchaser as a result of the defaults which gave rise to the termination.
Remedies and Waiver. The remedies herein reserved to Purchaser shall be cumulative and in addition to any other or further remedies provided in law or equity. No waiver by Purchaser or any breach of any provision of this contract shall be effective unless in writing and signed by Purchaser, and even then such waiver shall not constitute a waiver of any other breach of such provision or of any other breach of this contract.
Limitation on Purchaser's Liability/Statute of Limitations. In no event shall Purchaser be liable for anticipated profits or for incidental or consequential damages. Purchaser's liability on any claim of any kind for any loss or damage arising out of or in connection with or resulting from the Purchase Order and this contract or from the performance or breach thereof and hereof shall in no case exceed the price allocable to the Products or services or unit thereof, which gives rise to the claim. Purchaser shall not be liable for penalties of any description. Any action resulting from any breach on the part of Purchaser as to the Products or services delivered under the Purchase Order must be commenced within one year after the cause of action has accrued.
Force Majeure. Purchaser's acceptance of the Products or delivery thereof is subject to, and Purchaser shall not be liable for any delay in or impairment of performance resulting in whole or in part from, any war (whether or not declared) strike, differences with workmen, accident, fire, flood, acts of God, delay in transportation, shortage of materials, equipment breakdown, laws, regulations, rules or acts of any governmental agency or body or any cause beyond the reasonable control of Purchaser, or if performance by Purchaser becomes impracticable due to the occurrence of a contingency the non-occurrence of which was a basic assumption on which the purchase was made. In such event, Seller shall hold such Products at the direction of Purchaser and shall deliver them upon Purchaser's request. Purchaser shall be responsible only for Seller's direct additional costs in holding the Products at Purchaser's request.
Entire Agreement. The Purchase Order and any documents referred to on the Purchase Order, constitute the entire agreement between the parties respecting the subject matter thereof and the transactions contemplated herein and therein, superseding all other agreements between the parties whether written or oral, including but not limited to, any documents, correspondence, brochures, advertisements, emails or other electronically created materials in writing or other memoranda respecting the Products.
Assignments and Subcontracting. Seller shall not assign any of its rights or delegate any of its duties under this contract or the Purchase Order, or assign any monies due hereunder or thereunder, without the prior written consent of Purchaser.
Setoff. All claims for money due or to become due from Purchaser shall be subject to deduction or setoff by the Purchaser by reason of any counterclaim arising out of this or any other transaction with Seller.
Applicable Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Ohio without regard to its principles of conflicts of laws. Each party hereby irrevocably and unconditionally consents to the exclusive venue in any state or federal court located in the city of Toledo, Ohio (the “Ohio Courts”) for any litigation arising out of or relating to this Agreement and the transactions contemplated hereby, and each party hereby waives any objection to the laying of venue of any such litigation in the Ohio Courts and agrees not to plead or claim in any Ohio Court that such litigation brought therein has been brought in an inconvenient forum.
Relationship of Parties. Seller and Purchaser are independent contracting parties and nothing in a Purchase Order shall make either party the agent, joint venturer or legal representative of the other for any purpose whatsoever, or grant either party any authority to assume or to create any obligation on behalf of or in the name of the other. Although third parties may be referenced, there are no third party beneficiaries to a Purchase Order, except as specifically provided.
Attorney Fees. If any legal action, arbitration or other proceeding is brought hereunder, Purchaser, so long as it is the prevailing party under any such action, arbitration or other proceeding, shall be entitled to recover reasonable attorneys’ fees and any other costs incurred in bringing or defending any such action, arbitration or proceeding and collecting on any judgment rendered thereunder, in addition to any other relief to which it may be entitled.
Severability. Should any one or more of the provisions of this Agreement or any agreement entered into pursuant hereto be determined to be illegal or unenforceable, all other provisions of this Agreement and such other agreements shall be given effect separately from the provision or provisions determined to be illegal or unenforceable and shall not be affected thereby.