1. Applicability. (a) These Purchase Order General Terms and Conditions (the “GT&Cs”), together with any terms and conditions on the face of the accompanying purchase order details (“Order Details”) and any documents specifically incorporated herein by reference (collectively, the “PO”), constitutes the sole and entire agreement of the parties, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the PO. (b) This PO is an offer by the Purchaser for: (i) the purchase of the goods, (ii) rental of the equipment, or (iii) services associated with such goods or equipment, as such offer is specified on the face of the Order Details (each of (i)-(iii) collectively, the “Goods”) from the party to whom the PO is addressed (the “Seller”). (c) In the event Seller issues a proposal, quote letter, or similar document for Purchaser’s consideration prior to the date of this PO, any acceptance by Purchaser of such proposal or quote letter is: (i) limited to only the price of the Goods referenced therein, (ii) subject to Purchaser taking exception to all other terms and conditions therein, and (iii) subject to the terms of the GT&Cs. Seller’s technical clarifications are not binding on Purchaser unless accepted in writing. (d) Purchaser is not obligated to any minimum purchase or future purchase obligations under this PO. (e) No course of prior dealings between the parties shall be relevant to supplement or explain any term used in this PO.
2. Acceptance.
Seller’s commencement of work on the Goods subject to this PO or shipment of such Goods, whichever occurs first, shall be deemed acceptance of this PO, and an agreement shall be formed thereby. Acceptance of this PO is limited to acceptance of the express terms contained herein. Any additional terms shall constitute a counter-offer which shall not be effective unless accepted in writing by the Purchaser. If not so accepted, the terms of this PO shall prevail.
3. Delivery.
Seller must deliver the Goods on the date(s) specified in this PO or as otherwise agreed in writing by the parties (the “Delivery Date”), in the quantities specified in this PO and to the address specified in this PO (the “Delivery Location”) during Purchaser’s normal business hours or as otherwise instructed by Purchaser. Timely delivery of the Goods is of the essence. Purchaser has the right to return any Goods delivered prior to the Delivery Date at Seller’s expense and Seller must redeliver such Goods to the Delivery Location on the Delivery Date.
4. Quantity.
Seller shall provide Goods to Purchaser in the quantity specified in the Order Details. If Seller delivers more than 10%of the quantity of Goods specified by Purchaser pursuant to the relevant PO, Purchaser may reject all or any excess Goods. If Seller delivers less than 10% of the quantity of Goods specified by Purchaser in the Order Details, Purchaser may reject all or any of the Goods. Any such rejected Goods will be returned to Seller at Seller’s risk and expense. If Purchaser does not reject the Goods and instead accepts the delivery of Goods at the increased or reduced quantity, the Price for the Goods will be adjusted on a pro-rata basis.
5. Shipping Terms.
Delivery will be made in accordance with the terms on the face of this PO. Seller must give written notice of shipment to Purchaser when the Goods are delivered to a carrier for transportation. Seller must provide Purchaser all shipping documents, including the commercial invoice, packing list, air waybill/bill of lading, and any other documents necessary to release the Goods to Purchaser immediately after Seller delivers the Goods to the transportation carrier. The PO number must appear on all shipping documents, shipping labels, bills of lading, air waybills, invoices, correspondence, and any other documents pertaining to the PO. Each package shall be numbered and labeled with Purchaser’s PO Number, stock number, contents and weight, and shall contain an itemized packing slip. Extra expense incurred through failure to comply with the PO or Seller’s failure to ship sufficiently in advance of applicable delivery dates will be borne by Seller.
6. Title and Risk of Loss.
Title passes to Purchaser upon the earlier of delivery of the Goods to the Delivery Location or payment for Goods. Notwithstanding the foregoing, Seller bears all risk of loss or damage to the Goods until delivery of the Goods to Purchaser at the Delivery Location, or as otherwise specified by Purchaser.
7. Packaging.
All Goods will be packed for shipment according to Purchaser’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. Seller must provide Purchaser prior written notice if it requires Purchaser to return any packaging material. Any return of such packaging material will be made at Seller’s expense.
8. Inspection and Rejection of Nonconforming Goods.
The Purchaser has the right to inspect, or have its agent inspect, the Goods: (a) prior to the Delivery Date at any relevant location, including Seller or its suppliers’ manufacturing facilities; and (b) on or after the Delivery Date at the Delivery Location. Purchaser may reject all or any portion of the Goods if it determines the Goods are nonconforming or defective. If Purchaser rejects any portion of the Goods pursuant to this Section, Purchaser shall have the right to: (a) rescind the PO in its entirety; (b) accept the Goods at a reasonably reduced price acceptable to Purchaser; or (c) reject the Goods and require replacement of the rejected Goods with conforming Goods. If Purchaser requires replacement of the Goods, Seller must, at its expense, promptly replace the nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective Goods and the delivery of replacement Goods. If Seller fails to timely deliver replacement Goods, Purchaser may replace them with Goods from a third party and charge Seller the cost thereof and terminate this PO for cause pursuant to Section 16. Any inspection or other action by Purchaser under this Section will not reduce or otherwise affect Seller’s obligations under the PO, and Purchaser has the right to conduct further inspections after Seller has carried out its remedial actions. Payment for the Goods delivered hereunder shall not constitute acceptance thereof. Upon Purchaser’s final acceptance of the Goods, or any portion thereof, Seller may request Purchaser to provide Seller with a written statement of such final acceptance for such Goods, and Purchaser shall respond within a reasonable time with such written statement of final acceptance.
9. Price.
The price of the Goods is the price stated in the PO (the “Price”). Any invoice for the Goods must include and itemize costs for any agreed upon costs that Seller otherwise could not charge Seller pursuant to the terms of these GT&Cs. No increase in the Price is effective, whether due to increased material, labor, or transportation costs or otherwise, without the prior written consent of Purchaser. In the event Seller reduces its price for any article during the term of this PO, such price reduction shall be reflected in the Price applicable to this PO.
10. Payment Terms.
Seller may only issue an invoice for this PO to Purchaser following Purchaser’s final acceptance of the Goods; provided, any invoice from Seller must be (i) issued in accordance with the terms set forth in the PO, (ii) issued in good faith, and (iii) received by Purchaser within 90 days of Purchaser’s final acceptance of the Goods. In the event Purchaser’s final acceptance is only for a portion of the Goods, Seller may invoice for such portion of Goods so accepted in accordance with the foregoing sentence. If Seller fails to invoice Purchaser within the foregoing 90-day period of this Section 10, Seller understands and agrees that Purchaser reserves the right to, in Purchaser’s sole discretion, not pay Seller for such Goods. Purchaser will pay all properly invoiced amounts due to Seller within 60 days after Purchaser’s receipt of such invoice, except for any amounts disputed by Purchaser in good faith. In the event of a payment dispute, Purchaser will deliver a written statement to Seller listing all disputed items and providing a reasonably detailed description of each disputed item. Amounts not so disputed are deemed accepted and must be paid, notwithstanding disputes on other items, within the period set forth in this Section 10. The parties will seek to resolve all such disputes expeditiously and in good faith. Seller must continue performing its obligations under the PO notwithstanding any such dispute. Any time period during which a cash discount is available to Purchaser will not begin to run until the later of the: (i) date of receipt of Goods; (ii) date of receipt of a correct invoice; or (iii) shipping date specified on the face of this purchase order.
11. Setoff.
Without prejudice to any other right or remedy it may have, Purchaser reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Purchaser to Seller.
12. Warranties.
In addition to all other express and implied warranties, Seller represents and warrants that all Goods delivered or provided pursuant to this PO will: (a) fully conform in all respects with the specifications furnished, specified, or approved by the Purchaser; (b) be merchantable and free from any defects, latent or patent, in materials, workmanship, fabrication, or otherwise; (c) except for rental equipment, be new and not previously used; (d) be of good quality and workmanship; (e) be fit and sufficient for the purposes for which they were designed, manufactured, or rendered; (f) conform to applicable specifications, drawings, designs, samples, and other requirements specified by Purchaser; (g) be free and clear of all liens, security interests, or other encumbrances; and (h) not infringe or misappropriate any third party’s patent or other intellectual property rights. These warranties survive any delivery, inspection, acceptance, or payment of or for the Goods by Purchaser. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Purchaser’s discovery of the noncompliance of the Goods with the foregoing warranties. If Purchaser gives Seller notice of noncompliance with this Section, Seller must, at its own cost and expense and at Purchaser’s election, promptly replace, repair, or pay for the replacement or repair of the Goods not in compliance with this Section and pay for all related expenses, including, but not limited to, transportation charges for the return of the such Goods to Seller and the delivery of repaired or replacement Goods to Purchaser.
13. General Indemnification.
SELLER MUST, AT ITS EXPENSE, DEFEND, INDEMNIFY, AND HOLD HARMLESS PURCHASER AND PURCHASER’S PARENT COMPANY AND ITS AND THEIR SUBSIDIARIES, AFFILIATES, SUCCESSORS OR ASSIGNS, AND ITS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, AND EMPLOYEES, AND PURCHASER’S CUSTOMERS (COLLECTIVELY, “INDEMNITEES”) AGAINST ANY AND ALL LOSS, INJURY, DEATH, DAMAGE, LIABILITY, CLAIM, DEFICIENCY, ACTION, JUDGMENT, INTEREST, AWARD, PENALTY, FINE, COST, OR EXPENSE, INCLUDING REASONABLE ATTORNEY AND PROFESSIONAL FEES AND COSTS, AND THE COST OF ENFORCING ANY RIGHT TO INDEMNIFICATION HEREUNDER AND THE COST OF PURSUING ANY INSURANCE PROVIDERS (COLLECTIVELY, “LOSSES”) ARISING OUT OF OR OCCURRING IN CONNECTION WITH THE PRODUCTS PURCHASED FROM SELLER OR SELLER’S NEGLIGENCE, WILLFUL MISCONDUCT, OR BREACH OF THE TERMS OF THE PO. SELLER CANNOT ENTER INTO ANY SETTLEMENT WITHOUT PURCHASER’S OR INDEMNITEE’S PRIOR WRITTEN CONSENT. PURCHASER, AT ITS OPTION, MAY BE REPRESENTED BY AND ACTIVELY PARTICIPATE THROUGH ITS OWN COUNSEL IN ANY SUCH SUIT OR PROCEEDING.
14. Intellectual Property Indemnification.
Seller must, at its expense, defend, indemnify, and hold harmless Purchaser and any Indemnitee against any and all Losses arising out of or in connection with any claim that Purchaser’s or Indemnitee’s use or possession of the Goods infringes or misappropriates the patent, copyright, trade secret, or other intellectual property right of any third party. In no event will Seller enter into any settlement without Purchaser’s or Indemnitee’s prior written consent. Purchaser, at its option, may be represented by and actively participate through its own counsel in any such suit or proceeding.
15. Compliance with Law.
Seller certifies that, unless specifically exempted, all products, commodities, or rental services furnished under this PO have been manufactured, processed, delivered, sold, and/or performed in full compliance with all applicable laws, rules, orders, and regulations.
16. Termination.
If Seller fails to deliver the Goods in full on the Delivery Date to the Delivery Location, Purchaser may terminate the PO immediately by providing notice to Seller, and Seller must indemnify Purchaser against any losses, claims, damages, and reasonable costs and expenses directly attributable to Seller’s failure to deliver the Goods to the Delivery Location on the Delivery Date. In addition to any remedies that may be provided under these GT&Cs, Purchaser may terminate this PO with immediate effect upon written notice to the Seller, either before or after the acceptance of the Goods, if Seller has not performed or complied with any of these GT&Cs, in whole or in part. If the Seller becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it, proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors, then the Purchaser may terminate this PO upon written notice to Seller. If Purchaser terminates the PO for any reason, Seller’s sole and exclusive remedy is payment for the Goods received and accepted by Purchaser prior to the termination.
17. Limitation of Liability.
Nothing in this PO excludes or limits Seller’s: (a) liability under Sections 12, 13, 14, and 19 hereof; or (b) liability for fraud, personal injury or death caused by its negligence or willful misconduct. Purchaser’s liability on any claim of any kind for any loss or damage arising out of or in connection with or resulting from this PO or from the performance or breach thereof shall in no case exceed the price allocable to the Goods that give 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 Goods delivered hereunder must be commenced within one year after the cause of the action has accrued. In no event shall either party be liable for lost profits or for incidental, consequential, or special damages.
18. Waiver.
No waiver by any party of any of the provisions of the PO will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the PO, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from the PO will operate or be construed as a waiver thereof, nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
19. Confidential Information.
All non-public, confidential, or proprietary information of the Purchaser, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Purchaser to Seller, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as "confidential," in connection with the PO is confidential, solely for the use of performing the PO, and may not be disclosed or copied unless authorized by Purchaser in writing. Upon Purchaser's request, Seller must promptly return all documents and other materials received from Purchaser. Purchaser is entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to the Seller at the time of disclosure; or (c) rightfully obtained by the Seller on a nonconfidential basis from a third party. Purchaser shall, at all times, be the owner of all work product related to this PO, including sketches, layouts, negatives, photographs, designs, blueprints, and specifications. Upon the completion, or in the event of the cancellation or termination of this PO, all copies of such work product shall be returned and delivered to Purchaser by Seller. Purchaser may copy or reproduce such work product for any purposes and may use the same in any media as often as it may so desire. No copies or reproductions thereof shall be made or retained by Seller except as authorized in writing by Purchaser.
20. Force Majeure.
Neither party will be liable to the other for any delay or failure in performing its obligations under the PO to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party’s fault or negligence, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable (“Force Majeure Event”). Force Majeure Events include, but are not limited to, acts of God or the public enemy, government restrictions, floods, fire, earthquakes, explosion, epidemic, war, invasion, hostilities, terrorist acts, riots, strike, embargoes, or industrial disturbances. Seller’s economic hardship or changes in market conditions are not considered Force Majeure Events. Seller must use all diligent efforts to end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized, and resume performance under the PO. If a Force Majeure Event prevents Seller from carrying out its obligations under the PO for a continuous period of more than 30 days, Purchaser may terminate this PO immediately by giving written notice to Seller.
21. Assignment.
Seller cannot assign, transfer, delegate, or subcontract any of its rights or obligations under the PO without the prior written consent of Purchaser. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation will relieve the Seller of any of its obligations hereunder. Purchaser may at any time assign, transfer, delegate or subcontract any or all of its rights or obligations under the PO without Seller’s prior consent, written or otherwise.
22. Amendment and Modification.
No change to this PO is binding upon Purchaser unless it is: (i) in writing, (ii) specifically states that it amends this PO, and (iii) signed by an authorized representative of Purchaser. An amendment or modification to this PO may be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), electronic transmission (e.g. facsimile or email), or certified or registered mail (in each case postage prepaid). Any amendment, modification, or other related correspondence sent by electronic transmission, including the signature of a party delivered by facsimile or by a .pdf format document sent electronically will constitute original copies thereof and will be binding on the parties. Upon request, the receiving party may request an original of any document sent by electronic transmission.
23. Relationship of the Parties.
The relationship between the parties is that of independent contractors. Nothing contained in the PO shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party has the authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed
from this PO.
24. No Third-Party Beneficiaries.
This PO is for the sole benefit of the parties hereto, their respective successors and permitted assigns, as well as non-party Indemnified Parties as third-party beneficiaries of Sections 13 and 14 hereof, and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these GT&Cs.
25. Governing Law.
THIS PURCHASE ORDER SHALL BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. THE FEDERAL AND STATE COURTS LOCATED IN HOUSTON, HARRIS COUNTY, TEXAS SHALL HAVE EXCLUSIVE JURISDICTION OVER ANY DISPUTE ARISING OUT OF THIS PO OR ANY ACTION RELATING TO THE ENFORCEMENT OF ITS PROVISIONS, AND PURCHASER AND SELLER HEREBY WAIVE ANY OBJECTION TO ANY ACTION BROUGHT IN HARRIS COUNTY, TEXAS ON THE GROUNDS THAT THE APPLICABLE COURT DOES NOT HAVE PERSONAL JURISDICTION OVER SUCH PARTY OR THAT A MORE CONVENIENT FORUM EXISTS. Purchaser and Seller expressly exclude the application of the Convention on International Sale of Goods to this PO.
26. Cumulative Remedies.
The rights and remedies under this PO are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
27. Notices.
All notices, request, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the parties at the addresses set forth on the face of this PO or to such other address that may be designated by the receiving party in writing. All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), electronic transmission (e.g. facsimile or email) with confirmation of transmission (whether by read receipt or replied confirmation response from receiver), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this PO, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section. Notices and correspondence sent by electronic transmission, including the signature of a party delivered by facsimile or by a .pdf format document sent electronically will constitute original copies thereof and will be binding on the parties. Upon request, the receiving party may request an original of any document sent by electronic transmission.
28. Severability.
If any term or provision of this PO is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this PO or invalidate or render unenforceable such term or provision in any other jurisdiction.
29. Survival.
Provisions of this PO which by their nature should apply beyond their terms will remain in force after any termination or expiration of this PO, including, but not limited to, the following provisions: Section 11 (Setoff), Section 12 (Warranties), Section 13 (General Indemnification), Section 14 (Intellectual Property Indemnification), Section 15 (Compliance with Laws), Section 19 (Confidential Information), Section 25 (Governing Law), Section 26 (Cumulative Remedies), and Section 29 (Survival).
30. Construction.
The singular of a term also includes the plural of such term and vice versa. The word “includes” and its derivatives means “includes without limitation” and corresponding derivative meanings. The words “hereof,” “herein,” “hereunder,” and words of similar import, when used in this PO refer to this PO as a whole and not to any particular provision of this PO. Unless the context clearly indicates otherwise, the word “or” is not exclusive.
31. Sitework.
If Seller performs any work, including, but not limited to, installation, supervision of installation, fabrication, assembly, startup services, or repairs and technical support, on Purchaser’s or any of its affiliates’ premises (“Work”), such Work will be governed by the terms of the Master Services Agreement (“MSA”) between Seller and Purchaser if one is in effect, or, if no MSA has been executed by Seller and Purchaser, Work performed on Purchaser’s or any of its affiliates’ premises shall be governed by the terms and conditions in Purchaser’s applicable standard form MSA, with Seller as Contractor and Purchaser as Company (“Applicable MSA”). To the extent necessary, the Applicable MSA is hereby incorporated into and made a part of this PO.
