Seller is responsible for packaging materials in a manner to insure receipt of good condition.
Seller expressly warrants that all goods and/or work, ordered hereunder will be merchantable and fit and sufficient for the purpose ordered, and that all goods and/or work ordered according to plans, drawings, specifications, descriptions, or samples furnished or approved by Buyer, which are hereby made a part hereof as if fully set out herein, will confirm thereto, and that all goods and/or work ordered hereunder will be free from defect in material and workmanship and will comply with all requirements of the Occupational Safety and Health Act of 1970 as it may be amended from time to time including all regulations issued thereunder and shall comply with all requirements of all applicable health and/or safety statutes of federal, state, or local governments having jurisdiction in the location to which such goods are shipped or in which such work is performed. All warranties shall run to Buyer, its successors, assigns, and customers and to the users of its products, and shall be construed as conditions as well as warranties, and shall not be deemed to be exclusive.
Except with respect to default or subcontractors, Seller shall not be liable for any delay in or failure of performance if the failure to perform arises out of causes beyond the control and without the fault or negligence of Seller. Such causes may include, but are not restricted to, acts of God or of the public enemy, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather, but in every case the failure to perform must be beyond the control and without the fault or negligence of Seller. If the failure to perform is caused by the default of a subcontractor, and if such default arises out of causes beyond the control of both the Seller and subcontractor and without the fault or negligence of either of them, Seller shall not be liable for any delay or failure to perform, unless the supplies or services to be furnished by the subcontractor were obtainable from other sources in sufficient time to permit Seller to meet the required delivery schedule.
Seller agrees to indemnify and hold harmless the Buyer and Buyer’s customers from all costs, judgments, and any other expense resulting from any patent, trademark or copyright infringement claim or suit against Buyer or Buyer’s customers based on the purchase, use or resale by Buyer or Buyer’s customers, as the case may be, of the particular goods, equipment or work called for in this order and Seller shall defend any such infringement claim or suit at no expense to Buyer or Buyer’s customers, provided only that Seller is notified promptly of each such claim or suit.
If this order calls for work to be performed by Seller, all work performed and all materials used in connection therewith shall be at the risk and expense of and shall be replaced by Seller in the event of any damage or destruction thereof prior to delivery to and acceptance by Buyer. If this order calls for work to be performed by Seller upon any premises owned or controlled by Buyer and/or Buyer’s customers, Seller will keep the premises and the work free and clear of all mechanics’ liens and will furnish Buyer with certificate and waiver as provided by law. Whenever any property belonging to Buyer or its customers is in the possession of Seller or Seller’s suppliers, Seller shall be deemed an insurer thereof and shall be responsible for its safe return to Buyer. Seller will indemnify, hold harmless and defend Buyer and/or Buyer’s customers from any and all claims, demands or suits made or brought under the Workmen’s Compensation Law of the state in which any work is performed hereunder or under any applicable federal compensation laws, and will, if requested, furnish to Buyer a Certificate showing that Seller is complying with the Workmen’s Compensation Law of such state and with any applicable federal compensation laws. Seller will also indemnify, save harmless and defend Buyer and/or Buyer’s customers from all loss and expense for any damage to property or injury to or death of persons caused by Seller in the performance of this order.
If Buyer is offered material of equal quality, and like quantity at a price lower than that in effect hereunder upon satisfactory proof thereof and with fifteen (15) days prior written notice, Seller will either (a) meet such lower price or (b) release Buyer to purchase such quantities as needed for that period during which Seller is not competitive.
(a) If Seller defaults in performance of this order; or fails to make progress so as to endanger performance; or becomes insolvent; or makes an assignment for its creditors; or is the subject of bankruptcy proceedings, Buyer may, by written notice, terminate this order for default. Thereafter, Seller shall be responsible for Buyer’s costs in securing other performance of the terminated work and such other damages as may arise by reason of Seller’s default. In addition, Buyer may direct Seller to transfer title and deliver to Buyer any completed supplies, any inventory of partially completed supplies and materials and any toolings which Seller has acquired or produced specifically for this order. Payment for completed work shall be at the contract price, and payment for other materials shall be in an amount agreed to by the parties. In the event that a Seller terminated for default is subsequently found to not have been in default, the termination shall be converted to a convenience termination, and Seller shall have no claim for lost profits, consequential or special damages or any other costs or damages beyond the termination claim allowed under the Termination for Convenience provision below. (b) Buyer, by written notice, may terminate this order in whole or in part at any time whenever it shall determine that such termination is in its best interests. Upon receipt of such notice, Seller shall stop work to the extent that the order has been terminated. Within six (6) months of receipt of a notice of termination under this subparagraph, Seller shall submit its claim, if any, for the cost of performing the work to the date of termination and for the costs of terminating the work. Buyer shall pay for production acceptably completed prior to the termination date at the contract price. Buyer and Seller shall agree on other amounts to be paid Seller for work performed and costs occasioned by the termination. Nothing in this clause shall obligate buyer to pay more than the total order price, as reduced by payments made prior to the termination.
Seller shall comply with, and upon request of Buyer furnish certificates of compliance with all applicable federal, state and local laws, and with all applicable rules, orders, regulations or requirements issued thereunder, and shall defend, indemnify and hold Buyer harmless against any and all claims, demands, actions, expenses and damages caused by or arising out of Seller’s violation of this paragraph.
Seller agrees to protect, defend, hold harmless and indemnify Purchaser from and against any and all claims, actions, liabilities, losses, costs and expenses arising out of any actual or alleged death of or injury to any person, damage to any property, or any other damage or loss by whomsoever suffered, resulting or claimed to have resulted in whole or in part from any actual or alleged defect in any merchandise purchased hereunder, whether latent or patent, including actual or alleged improper construction or design of said merchandise or the failure of said merchandise to comply with specifications or with any express or implied warranties to Seller, or arising out of any actual or alleged violation by such merchandise, or its manufacture, possession, use or sale, or any law, statute or ordinance or any government administrative order rule or regulation. This agreement by Seller shall not be affected or limited in any way by Purchaser’s extension of express or implied warranties to its customers, except to the extent that any such Purchaser’s warranties expressly extend beyond the scope of seller’s warranties, express or implied, to Purchaser. Seller agrees to obtain and maintain, at its expense, a policy or policies of products and contractual liability insurance.
- (a) Neither this order nor any monies due or to become due thereunder may be assigned by Seller without the written consent of buyer.
- (b)Failure by Buyer at any time and from time to time to enforce any term or condition of this order shall not be deemed to be a waiver thereof on the same or on subsequent occasions nor a waiver of any other term or condition hereof.
- (c)This agreement shall impose liability on the Seller only to the extent permitted by applicable law and to the fullest extent permitted thereby. Any provision hereof prohibited by such law shall be deemed to be void without effecting the rest of the agreement.
- (d)The receipt of Buyer of any quotation form, sales confirmation or acknowledgment, or any other proposal shall not in the absence of a written acknowledgment by Buyer expressly agreeing to same, have the effect of changing in any manner or adding to the terms and conditions hereof. This offer hereby expressly limits acceptance by the Seller to the terms and conditions hereof. Notice of objection to different or additional terms or condition is hereby given.
In the event of Seller’s inability for any reason to supply the total demands for Product, Seller may distribute its available supply among all purchasers, as well as departments and divisions of the Seller, on a percentage basis that is no less favorable than is provided to any other purchaser or internal user without facility for any failure to perform this Agreement which may result therefrom. Seller shall have no obligation to purchase supplies of Product to enable it to perform this Agreement.