P.O. Terms & Conditions

1. Acceptance. The terms and conditions hereof become the exclusive and binding agreement between the parties covering the purchase of the goods or services ordered herein when this order is accepted by and upon the earlier of acknowledgement or upon commencement of performance by Seller.  This order can be accepted only on the terms and conditions set forth herein.  Additional or different terms proposed by Seller shall not be applicable unless accepted, in writing, by Buyer.  No change, modification or revision of this order shall be effective unless in writing and signed by Buyer.
2. Discounts.  The cash discount period will begin at the time of receipt by Buyer of a full, complete and correct invoice or upon receipt of the goods to which the invoice relates, whichever is later.  Payment is deemed to be made for the purpose of earning the discount on the date of mailing of Buyer’s check, said date to be determined solely by reference to the postmark printed thereon by the United States Postal Service.
3. Non-Performance.  Buyer reserves the right to cancel all or any portion of this order if any shipment is not made in the quantity ordered and by the date specified, time being of the essence herein, and to purchase elsewhere and to charge Seller with any and all losses, direct or indirect, contingent or otherwise, incurred as a result thereof.
4. Packing and Cartage Charge.  No charge will be assessed against Buyer for packing, crating, drayage or storage unless agreed upon at the time of purchase, and shipments must be packed and crated to conform with the requirements of the carriers and all applicable federal, state and local laws, ordinances, rules and regulations.
5. Claims.  Payment of an invoice shall not constitute acceptance of goods or services and shall be without prejudice to the claims of Buyer.
6. Risk of Loss.  Seller shall bear the risk of loss under this order until delivery at destination.
7. Warranties.  Seller expressly warrants that all goods or services delivered hereunder shall be free from defects in workmanship, material and manufacture and will conform to applicable specifications, drawings, samples and descriptions.  Seller further warrants that such goods will be free from design defects and will be merchantable and fit, in all respects, for the purpose intended by Buyer.  Such warranties are in addition to all other warranties, whether express or implied, and shall survive acceptance and payment by Buyer.
8. Inspection.  All goods purchased hereunder shall be subject to inspection and test by Buyer for a period of ninety (90) days following receipt of such goods by Buyer.  If any item is defective in material or workmanship or otherwise not in conformity with the requirements of this order, Buyer shall have the right, at its option, either to reject it without correction, require its correction or accept it with an adjustment in price.  Any item which has been rejected or required to be corrected shall be replaced or corrected by and at the expense of Seller promptly after notice.  If, after being requested by Buyer, Seller fails to promptly replace or correct any defective item within the delivery schedule, Buyer may, (i) by contract or otherwise, replace or correct such items and charge to Seller the cost there of; (ii) without further notice, terminate this order for default in accordance with the clause hereof entitled “Termination” or (iii) require an appropriate reduction in price.
9. If the order requires Seller to perform any services upon property owned or controlled by Buyer, Seller agrees as follows:
   1. Release of Claims.  To furnish to Buyer, as a condition precedent to final payment, a complete release of all liens, claims, charges and encumbrances, together with a certificate by Seller that the release contains the signatures of all those who performed services or furnished materials under this order;
   2. Insurance.  (1) To provide, at its sole expense, worker’s compensation and employer’s liability insurance protection for all of its employees engaged in the performance of this order; and (2) to procure and maintain in force at all times during the performance of this order (A) bodily injury, property damage and contractual liability injury and contractor’s property damage insurance coverage, each having coverage of $500,000 each person and $1,000,000 each occurrence, and (B) automobile liability insurance coverage having minimum amounts of $250,000/$500,000 per accident for bodily injury and $1000,000 per accident for property damage, unless higher amounts are specified by Buyer.  Certificates evidencing such insurance coverage shall be submitted to Buyer prior to the commencement of the work hereunder.
10. Patent Warranty.  Seller agrees, solely at its expense, to defend any suit or proceeding brought against Buyer or its customers of any goods supplied under this order based on a claim (of which claim notice shall have been given to Seller) that said goods constitute an infringement of any patent and Seller agrees to indemnify and hold harmless Buyer and its customers of the said goods for any and all expenses, direct or indirect, contingent or otherwise, arising from any such claim.  If said goods are adjudicated to constitute an infringement, Seller further agrees to pay all court awarded damages and costs and solely at Seller’s expense either to (i) procure for Buyer and its customers of said goods the right to continue selling or using said goods; (ii) replace the same with non-infringing goods; or (iii) modify it so it becomes non-infringing, provided that such modification does not materially alter its dimensions or increase, in any amount, the direct or indirect costs of its use, operation or maintenance.
11. Termination.
    1. Default.  It is understood and agreed that time is of the essence under this order.  Buyer may, by written notice, terminate this order in whole or in part if Seller fails to (i) make delivery of the items or to perform the services within the time specified herein, or any extension thereof, by written amendment or (ii) replace or correct defective items in accordance with provisions of this order or to make progress as to endanger performance in accordance with its terms in the event of termination pursuant to this clause, Buyer may procure, upon such terms and in such manner as Buyer may deem appropriate, goods or services similar or substantially similar to those terminated and Seller shall thereupon be liable to Buyer for any direct or indirect excess costs occasioned to Buyer thereby, provided that Seller shall be obligated to continue performance of this order to the extent not terminated.
    2. Convenience.  Buyer may terminate for convenience work under this order, in whole or in part, at any time by written or telegraphic notice.  Upon any such termination Seller shall, to the extent and at the time specified by Buyer, stop all work on this order, terminate work under orders outstanding hereunder, assign to Buyer of all articles, materials, work-in-process or other things held or acquired by Seller in connection with the terminated portion of this order.  Within thirty (30) days from such termination under this clause, Seller shall submit to Buyer its written claim for termination charges, in the form and with the certifications prescribed by Buyer, it being understood and agreed that no profit shall be allowed if it appears Seller would have sustained a loss on the order.  Failure to submit such claim within such time shall constitute a waiver of all claims and a release of all Buyer’s liability arising out of such termination.
12. Indemnity.  Seller, its heirs, successors, assigns and legal representatives, shall forever protect, indemnify and hold Buyer harmless from and against any and all claims, demands, suits, actions, proceedings, obligations, liabilities, costs, expenses an/or losses of every kind or character including, without limitations, injuries to and death of persons and loss of or damage to property by whomsoever owned, arising, directly or indirectly out of or in connection with Seller’s performance or lack of performance of this order.
13. Delays or Default.  The performance of this order by either party is subject to delays and non-deliveries or non-acceptance caused by strikes, work stoppages, riots, war, acts of God, accidents, government orders and regulations, lack of transportation or distribution facilities and other similar or different contingencies beyond the control of such party.
14. Government Contracts.  If this order is issued for any purpose which is directly or indirectly connected with the performance of a prime contract with the government or a subcontract there under, Seller agrees that all terms and conditions required by law shall be incorporated herein and be deemed to be a part hereof, including, but not limited to, terms and conditions required by Armed Forces Procurement Regulations and Federal Procurement Regulations.
15. Compliance with Law.  Seller warrants that all goods or services furnished hereunder will comply with all applicable federal, state and local laws, orders and regulations, including, but not limited to, the Fair Labor Standards act of 1938, the Civil Rights Act of 1964 and the Occupational Safety and Health Act of 1970 and any amendments thereto.  Seller agrees to give to Buyer all such compliance certificates, notices and reports as may be either required or otherwise necessary in such connection and Seller further agrees that all invoices covering the good or services hereunder will contain the following clause or a substantially similar clause: “The goods and/or services covered by this invoice were produced and/or rendered in compliance with the requirements of all applicable provisions of the Fair Labor Standards act of 1938, as amended.  To the extent, and only to the extent, applicable Executive Orders 11246, 11625, 12133 and 11701 are incorporated herein.
16. Assignment. Seller shall not assign this order or any part thereof without the prior written consent of Buyer.
17. Applicable Law.  This order shall be governed by and subject to and construed in accordance with the laws of the State of Missouri.
18. Cumulative Rights.  The rights and remedies herein reserved to the buyer shall be cumulative to any other and further rights and remedies provided to the buyer in law or in equity.
19. Federal Food, Drug and Cosmetic Act.  Seller warrants and covenants that as of the date of each shipment or other delivery, non of the goods delivered pursuant to this order will (i) be adulterated or misbranded with the meaning of the Federal Food, Drug and Cosmetic Act, as amended, to the extent said Act is then effective and applicable or (ii) be an article which may not under the provisions of Section 404 or 505 of said Act, be then introduced into interstate commerce.
20. Compliance with EEO Laws.  Buyer served from time to time as a contractor for the United States Government.  Accordingly, the Seller shall comply with all federal laws, rules and regulations applicable to subcontractors/vendors of Government contractors including those related to equal employment opportunity and affirmative action in employment to minorities and women (Executive Order 11246, as amended), individuals with disabilities (Section 503 of the Rehabilitation Act of 1973, as amended) and Vietnam era/disabled veterans (Vietnam Era Veterans Readjustment and Assistance Act of 1974, as amended, 28 USC 4212).  These clauses, required by the Government are incorporated herein by reference.  EBH-102/b23-27-050983
21. Suppliers of Control Devices are required to deliver 100% on time for all items on this purchase order.