Purchase Order Terms and Conditions
This Purchase Order (sometimes referenced herein as “PO”), is an offer by PEIRCE-PHELPS, LLC, ("Buyer") to the Seller listed on the accompanying Purchase Order ("Seller") and acceptance is limited to its provisions without additions, deletions, or other modifications. Buyer will not be responsible for materials delivered without issuance of its standard Purchase Order. This is a firm price order for the price set forth in the Purchase Order to which these terms and conditions apply, which Purchase Order is made a part hereof and incorporated herein by reference.
Terms Of Payment
Invoices shall be dated no earlier than date of shipment or delivery of service. The discount period begins upon receipt of invoice, required delivery date, or date any applicable discrepancy is resolved, whichever date is later. Buyer will pay non-discountable invoices thirty (30) days after receipt of invoice, required delivery date, acceptance, or the date any applicable non-conformity is resolved, whichever date is later.
Documents designated by Buyer in the body of the Purchase Order, including supplemental terms and conditions, if any, are incorporated by reference the same as if set out in full therein.
Buyer reserves the right at any time to issue a written change order or amendment to the Purchase Order concerning any of the following: (a) specifications, drawings, and data incorporated in the Purchase Order where the items to be furnished are to be specially manufactured for Buyer; (b) quantity; (c) methods of shipment or packaging, (d) place of delivery, (e) time of delivery; or (f) any other matters affecting this Purchase Order.
Buyer may terminate the Purchase Order for its convenience, in whole or in part, at any time prior to shipment by (written or electronic) notice to Seller. Upon receipt of such termination notice, Seller shall promptly comply with the directions contained in such notice and shall, as required, (a) take action necessary to terminate the work as provided in the notice, minimizing costs and liabilities for the terminated work, and (b) continue the performance of any part of the work not terminated by Buyer.
Seller may not assign, transfer, or subcontract this Purchase Order or any right or obligation hereunder without Buyer’s written consent.
Fires, floods, strikes, accidents, shortages, or other causes beyond the reasonable control of the parties, which prevent Seller from delivering, or Buyer from receiving, any of the materials covered by this Purchase Order, shall suspend deliveries until the cause is removed, subject, however, to Buyer’s right of termination for convenience under Paragraph 5.
Packaging, Packing List, And Bill Of Lading And Delivery
Seller shall be responsible for proper packaging, loading, and tie-down to prevent damage during transportation. Buyer’s weight and/or count will be accepted as final and conclusive on all shipments not accompanied by a packing list. Delivery to Buyer shall be construed as the on-dock date at Buyer’s facility (required date) as noted on PO.
All materials furnished hereunder will be subject to inspection and test by Buyer and will be subject to Buyer’s final inspection and approval within a reasonable time after delivery. If Seller delivers non-conforming materials, Buyer may at its option and at Seller’s expense: (i) reject and return the materials for credit or refund; (ii) require Seller to promptly correct or replace the materials; (iii) correct the materials; or (iv) obtain replacement materials from another source. Seller shall not redeliver corrected or rejected materials without disclosing the former rejection or requirement for correction. Seller shall disclose any corrective action taken. Repair, replacement and other correction and redelivery shall be completed within the original delivery schedule or such later time as Buyer may reasonably direct. All costs, expenses and loss of value incurred as a result of or in connection with nonconformance and repair, replacement or other correction may be recovered from Seller by equitable price reduction or credit against any amounts that may be owed to Seller under this purchase order or another. Payment for any materials shall not be deemed acceptance and in no event shall Buyer incur any liability for payment for rejected materials.
By accepting this Purchase Order, Seller warrants that the materials furnished will be free from defects in materials and workmanship, merchantable and in full conformity with Buyer’s specifications, drawings, and data, and Seller’s descriptions, promises, or samples, and that such materials will be fit for the Buyer’s intended use, provided Seller has reason to know of such use, and that Seller will convey good title to the materials, free and clear from all liens, claims, and encumbrances. Seller warrants that materials covered by this Purchase Order shall not infringe any patent, design, mask work, copyright or trademark, of any third party, either directly or contributory. Seller agrees to indemnify Buyer and hold Buyer harmless from and against all liability, loss, damage and expense, including reasonable counsel fees and costs of litigation, resulting from any claim of infringement and any litigation relating thereto. In the case where materials or a part thereof are held to constitute infringement and the use of the materials or a part thereof is enjoined, Seller shall, at the expense of Seller, either (a) procure for the Buyer the rights to continue to using the materials, (b) replace the materials so that the materials become non-infringing, or (c) retake the materials and refund the purchase price and transportation and installation cost of the materials to Buyer. Such obligations shall survive acceptance of the materials and payment therefore by Buyer. Where applicable, the Seller warrants that the materials covered by this Purchase Order are in compliance with all laws, regulations, rules, and orders relating to the importation of materials into the United States, the exportation of materials out of the country of origin, the transit of materials through intermediate countries and the sale and use or foreign made materials in the United States. Seller further warrants that it has obtained all permits, licenses, and certifications necessary for the materials to be exported out of the country of origin, imported in the United States, delivered to Buyer and used or sold within the United States.
It is Seller's responsibility to comply with these and all referenced documents and to clarify with Buyer any inconsistencies or conflicts in any parts of this order, such as these provisions contained in this document, additional terms and conditions, general specifications, detailed specifications, etc. Should Seller fail to contact Buyer to resolve these conflicts or inconsistencies, Seller will be solely responsible for errors resulting from conflicts or inconsistencies. Where documents are referenced, the version in effect at the time of order placement shall apply.
Title; Risk Of Loss
Title shall pass to Buyer upon Buyer’s receipt of materials at destination. Risk of loss of all materials shall remain in Seller until receipt by Buyer at destination, unless otherwise specified in this Purchase Order, except for loss occasioned by gross negligence or willful neglect of Buyer or its customer.
Confidentiality; Limited Use
Unless otherwise agreed by Buyer in writing, Seller shall keep confidential and not disclose to any third party, any confidential and/or proprietary materials provided by Buyer to Seller in connection with Seller’s performance of this Purchase Order or prepared by Seller specifically for Buyer pursuant to this Purchase Order, including but not limited to any drawings, masters, software, specifications, raw materials, components, data, business information or plans, customer lists or other customer information (“Confidential Information”). Seller shall not make any copies of Confidential Information except as specifically authorized by Buyer in writing. At the completion of this Purchase Order, or upon Buyer’s request, Seller shall promptly return to Buyer all Confidential Information not consumed in the performance of this Purchase Order, together with any copies in Seller’s Possession. Seller shall use Confidential Information solely for Sellers performance of this Purchase Order for Buyer, and Seller shall not, without Buyer’s written consent, directly or indirectly use Confidential Information or information derived there from in providing materials for any other customer of Seller, or any other person or entity.
>Resolution Of Conflicts Or Inconsistencies Occuring In The Order
It is Seller’s responsibility to comply with this Purchase Order and all referenced documents, and to clarify with Buyer any inconsistencies or conflicts in any parts of the Purchase order or referenced documents. Should Seller fail to contact Buyer to resolve conflicts or inconsistencies, Seller will be solely responsible for errors resulting from said conflicts or inconsistencies. Where documents are referenced, the version in effect at the time of order placement shall apply.
Buyer’s Terms And Conditions Apply
Acknowledgment of the Purchase Order, shipment of any materials, or commencement of work pursuant to the Purchase Order shall be deemed an acceptance of these General Terms and Conditions. No modification of or release from this Purchase Order shall be binding unless agreed to in writing by the parties and specifically labeled as a modification or release. Unless specifically agreed to otherwise by Buyer and Seller, these terms and conditions supersede any submitted by Seller in any proposal or acknowledgment.
No charges for extras or for cartage or boxing or storage will be allowed unless the same has been agreed upon in writing by Buyer. All materials must be forwarded in accordance with Buyer’s shipping instructions, otherwise the difference in freight rate will be charged to Seller.
No substitution of materials or accessories may be made without written permission from Buyer.
Seller agrees to indemnify, defend, and hold Buyer harmless from and against all losses, damages, liability, actions, judgments, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and other expenses of litigation), suffered, incurred, or asserted by or against Buyer (a) by reason of Seller’s breach of a warranty, (b) by reason of Seller’s breach of any term of this Purchase Order, or (c) by reason of personal injury, including death, or property damage sustained by a third party, resulting from or arising out of an act or omission of Seller, or Seller’s agents, employees, or contractors in fulfillment of this Purchase Order. Additionally, Seller shall, at its expense, defend any suit or proceeding brought against Buyer, its successors and assigns, based on any claim that any materials or any component part delivered or furnished hereunder infringes or the like the rightful claim of any third party including any US or foreign letters patent or trademark or copyright (excepting infringement or the like necessarily resulting from adherence to specifications furnished by Buyer). Buyer agrees to notify Seller in writing or electronically of any such claim and to provide such assistance, at Seller's expense, as may be reasonably required in defending the suit or proceeding. Seller shall pay all damages, costs and attorney fees awarded in any suit or proceeding. If the materials or any component part furnished hereunder are held to infringe and their use is enjoined, Seller shall, at its option and its own expense, (a) procure for Buyer and its successors and assigns, the right to continue using the materials, (b) replace them with a substantially equivalent non-infringing product acceptable to Buyer, or (c) modify them so they become non-infringing with substantially equivalent performance acceptable to Buyer. Absent (a), (b), (c), Buyer reserves its rights at law, or at its option may return the infringing materials to Seller at Seller's expense and Seller promptly shall refund the purchase price to Buyer.
Cumulative Remedies; Waivers; Survival Of Warrantie
The remedies herein reserved to Buyer shall be cumulative, and additional to any other or further remedies provided in law or equity. No waiver by Buyer of any term or condition of this Purchase Order shall be construed as a permanent waiver of such term or condition or of any other term or condition. Seller’s warranties shall survive the completion or cancellation of this Purchase Order.
This Purchase Order shall be governed by the laws of the State of Pennsylvania, U.S.A, except for its provisions regarding principles of conflicts of laws, and except to the extent that federal communications law shall apply. Any court action arising under this order shall be venued in Courts of Common Pleas, Philadelphia County, Pennsylvania, U.S.A., in either federal or state court, as is appropriate.
The term “materials” as used herein means any and all materials, parts, products, machines, tooling, test equipment, technical data, computer software, computer software documentation, and other tangible items or documentary information furnished or required to be furnished by Seller under this order.
Unless superseded by a specific signed agreement between Buyer and Seller, this agreement shall include the Purchase Order, these General Terms and Conditions, and all attachments referred to in the Purchase Order or in the General Terms and Conditions, and it shall constitute the entire agreement of the parties with regard to the subject matter contained herein. All other prior or contemporaneous representations, warranties, covenants, or agreements between Seller and Buyer, or their representatives, with respect to the subject matter are hereby superseded. The term “Purchase Order” as used herein means the first and continuation pages of Proponent’s completed Purchase Order form, including any special provisions contained therein. This agreement may not be modified except by mutual written agreement of the parties.
Disputes/Attorney’s Fees Clause
Disputes/Attorney’s Fees. Any dispute that arises under or it related to this purchase order that cannot be settled by mutual agreement of the parties may be decided by a court of competent jurisdiction, and the parties agree to and consent to jurisdiction and venue in the Courts of Common Pleas, Philadelphia County in the state of Pennsylvania. Pending final resolution of any dispute, Seller shall proceed with performance of this purchase order according to Buyer’s instructions so long as Buyer continues to pay amounts not in dispute. The prevailing party in any action filed regarding this Purchase Order shall be entitled to recover its reasonable attorney’s fees and costs as a part of the claim, at both the trial and appellate level.
The work to be delivered hereunder shall consist of new materials, no used, or reconditioned, or of such age as to impair its usefulness of safety.