GENERAL PROVISIONS, Outdoortire.com
1. ACCEPTANCE. Written acceptance by Seller of this Order of the commencement of any work or the performance of any services hereunder by Seller shall constitute acceptance by Seller of this Order. Acceptance of this Order is limited to the terms and conditions stated herein. Any additional or different terms proposed by Seller are objected to and hereby rejected unless Buyer agrees otherwise in writing.
2. PRICING AND PAYMENTS. (a) All prices are firm and shall not be subject to change. Seller’s price includes all payroll and/or occupational taxes, any value added tax that is not recoverable by Buyer and any other taxes, fees and/or duties applicable to the goods and/or services purchased under this Order; provided, however, that any value added tax that is recoverable by Buyer, state and local sales, use, excise and/or privilege taxes, if applicable, will be separately identified on Seller’s invoice. (b) Unless otherwise stated on the face of this Order, payment terms are net due sixty (60) days from the end of the month of the date of the invoice or the date of stamped Bill of Lading, whichever is later. Buyer shall be entitled to reject Seller’s invoice if it fails to include Buyer’s Order number or is otherwise inaccurate, and any resulting delay in payment shall be the Seller’s responsibility. Seller warrants that it is authorized to receive payment in the currency stated in this Order. No extra charges of any kind will be allowed unless specifically agreed in writing by Buyer in an official Order revision.
3. DELIVERY AND PASSAGE OF TITLE.
3.1 If Seller fails to deliver all the goods and related documents (including, but not limited to, drawings, certificates, and quality documents) and/or complete the services as scheduled, Seller shall pay one percent (1%) of the total amount of the Order per week or part of the week of delay, up to a maximum aggregate of fifteen percent (15%) of the total amount of the Order. The parties agree that such amounts, if assessed, are a reasonable pre-estimate of the damages Buyer will suffer as a result of delay based on circumstances existing at the time the Order was issued, with the exception of any documented additional damages in connection therewith, if any. In the absence of agreed to liquidated damages, Buyer shall be entitled to recover damages that it incurs as a result of Seller’s failure to perform as scheduled. Unless expressly stated to the contrary, Buyer’s remedies are cumulative and Buyer shall be entitled to pursue any and all remedies available at law or equity. Further to the foregoing, Seller shall not make material commitments or production arrangements in excess of the amount or in advance of the time necessary to meet Buyer’s delivery schedule. Should Seller enter into such commitments or engage in such production, any resulting exposure shall be for Seller’s account.
3.2 Delivery designation will be stated on the face of this Order, all delivery designations are INCOTERMS 2010. Goods delivered to Buyer in advance of schedule will be paid per the Order due date, rather than the date of the invoice or the date of stamped Bill of Lading.
4. WARRANTY. Seller warrants to Buyer and its customers that the goods furnished hereunder shall (a) conform to the applicable drawings, specifications, samples and descriptions, (b) be suitable for the intended purpose, and (c) be of first class material and workmanship and free from defects. Such warranty shall remain in effect for the period of two (2) years from the date goods are put into use and goods found to be defective within the warranty period shall be corrected or replaced by Seller, without cost to Buyer. The Seller warrants that it has good lists to the articles to be supplied and that they are free and clear from all liens and encumbrances.
5. CONTINGENCIES. Buyer shall not be liable to Seller for any loss or damage suffered by Seller, directly or indirectly, as a result of Buyer’s failure to perform or delay in performing any term, covenant, or condition of this purchase order, if such failure is caused by fire, earthquake, labor trouble (including strikes and lockouts), war, civil disturbance, government regulations, shortage of materials, energy shortage, interruption of or delay in transportation, accidents, acts of God, or other causes beyond Buyers control.
6. INSPECTION. Goods will be received subject to Buyer’s count, inspection and acceptance at destination. Defective goods may be rejected by Buyer, and Buyer at its option (without prejudiced to any other legal remedy), may hold such goods at Seller’s risk or return same to Seller, at the latter’s expense. Defects shall not be waived by acceptance of goods nor by failure to notify Seller thereof. Buyer reserves the right to inspect goods at Seller’s location prior to shipment.
7. CHANGES. Buyer may at any time by written notice make changes in the pertinent drawings, designs, specifications, shipping instructions, delivery dates, quantities and methods of packing; and Seller shall comply with such changes as soon as notified thereof by Buyer. Should any change increase or decrease the cost of, or the time required for, performance of this Order, an equitable adjustment, in prices and/or delivery schedules shall be made; and such adjustment, if any, shall constitute Seller’s sole remedy on account of such change. Any claim for adjustment by Seller must be made in writing and received by Buyer within thirty (30) days from the date the change is ordered, or within such additional period of time as may be agreed upon.
8. TOOLING. In the event that tooling (such as, but not limited to, jigs, dies, fixtures, molds, patterns, special taps, special gauges, and testing equipment or other special equipment and manufacturing aide) is required for the performance of this Order, and the cost thereof is included in the price of the end item supplied to the Buyer by Seller but the tooling is not delivered to Buyer. Seller shall hold and use such tooling as a bailee for hire, and shall deliver it to Buyer, if so requested, in this condition in which acquired (reasonable wear and tear expected), or shall dispose of it as directed by Buyer upon the completion or sooner termination of this or subsequent orders. Such tooling as may be supplied to Seller by Buyer without charge shall be held and used by Seller as a bailee for hire on the same terms as tooling manufactured or acquired by Seller. Use of such tooling shall be restricted to performance of this or subsequent purchase orders unless otherwise authorized by Buyer.
9. PATENTS. Seller, at its own expense, shall defend any suit brought against Buyer or any of Buyer’s customers on the ground or grounds that the goods, apparatus or use thereof, as furnished by Seller, infringe any United States Letters Patent, and shall pay the amount of any judgement that may be awarded against Buyer or any of Buyer’s customers in any such suit, provided and upon the condition that Buyer shall (a) promptly deliver to Seller all infringement notices and other papers received or served upon Buyer or any of Buyer’s customers. (b) permit Seller to take charge of the defense of such suit and to compromise same, if deemed advisable, and (c) assist in every reasonable way in the conduct of such defense. If the goods or apparatus covered hereby are made solely from designs supplied to seller by Buyer, then Seller need not defend such infringement suits but shall notify Buyer thereof promptly.
10. USE. The goods contracted for herein are understood to be for the use of Buyer, its affiliated Companies or its or their suppliers, and deliveries and shipments shall be made as directed by Buyer in its absolute discretions; all articles contracted for may subject to further processes of manufacture combined with any articles, or put to any use whatsoever, by Buyer, its affiliated companies or their suppliers, as is or they may elect, and in no event shall any claim or royalty or other additional compensation be made by the Seller or shall Seller’s warranty to Buyer be in any way voided or changed, by reason of such manufacture, combination or use.
11. ASSIGNMENT. This purchase order shall not be assigned by Seller, in whole or in part, not shall any claim arising or sum payable hereunder be assigned, without Buyer’s written consent.
12. WAIVER. Buyer’s waiver of any default by Seller under this purchase order shall not constitute, or be construed as, a waiver of any subsequent default.
13. TERMINATION. Buyer at its option may terminate this Order for Buyer’s convenience, in whole or in part, upon ten (10) days advance written notice to Seller. In the event of such termination, for whatever cause, Buyer shall pay the contract price of acceptable goods completed prior to termination, and if at the time of termination, Seller is not in default. Buyer shall in addition reimburse Seller for its established cost of labor expended and material consumed in the production of uncompleted goods in process but in no event in excess of the contract price of said items of work in process included in the termination portion of the Order.
(a) Default under this contract shall be in accordance with the Uniform Commercial Code and all the rights and remedies of the parties hereto shall be as set forth in the Uniform Commercial Code.
(b) A default under this purchase order shall also include but shall not be limited to, the happening of any one of the following events, namely, (1) Seller’s insolvency or commission of any act of bankruptcy, (2) the filing of a voluntary or involuntary petition by or against Seller under any bankruptcy law or law relating to the relief of debtors, (3) the appointment of a receiver or trustee of Seller’s property, or (4) the appointment of an assignee for the benefit of Seller’s Creditors.
15. COMPLIANCE WITH LAWS. Seller represents, and warrants that, in the performance of this Order it shall comply with applicable federal, state and local laws. Seller agrees that this warranty may be considered as the written assurance contemplated by federal, state and local law whenever such assurance is required by law and that all goods delivered hereunder were produced in compliance with federal, state and local law in effect as of the date of this purchase order.
16. OCCUPATIONAL SAFETY AND HEALTH WARRANTY. Seller warrants that the product sold or service rendered to Buyer shall conform to the standards and/or regulations promulgated by the U.S. Department of Labor under the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 at seq. PL91-596 (O.S.H.A.). In the event the product sold does not conform to the O.S.H.A. standards and/or regulations. Buyer may return the product for correction or replacement at Seller’s option and at Seller’s expense. Services performed by the Seller which do not conform to O.S.H.A. standards and/or regulations must be corrected by Seller at Seller’s expense in the event Seller fails to make the appropriate correction within a reasonable time.
17. DISCOUNT. The time within which cash discounts may be taken shall be calculated from the later of (1) the invoice date; or (2) the date Buyer receives the goods and order herein.
18. INDEMNITY. Seller shall defend, indemnity and hold harmless Buyer from any and all liabilities, claims, demands, costs and reasonable attorney’s fees for injury (including death) to persons or damage to property arising out of or resulting from (1) Seller’s acts or omissions in performance hereunder, (2) defects caused by Seller in any of the goods furnished hereunder or (3) non-compliance, of any such goods with applicable federal, state or local law.
19. PACKING, MARKING AND SHIPPING. (a) Seller shall pack, mark and ship all goods and supplies in accordance with the requirements of this Order so as to be in compliance with transportation regulations and good commercial practice for protection and shipment and to secure the most advantage of transportation service and rates consistent therewith. Seller shall place all markings in a conspicuous location as legibly, indelibly and permanently as the nature of the article or container will permit. No separate or additional charge is payable by Buyer for containers, crating, boxing, bundling, dunnage, dreyage or storage unless specifically stated in this Order. Any expense incurred by Buyer as a result of improper preservation, packaging, packing, marking or method of shipment shall be reimbursed by Seller. Packing list showing this Order number (and release number, if applicable) shall be included with each shipment, and each container shall be marked to show the Order number. Seller shall email bill of lading to Buyer’s Logistics Department at point of Order unless otherwise instructed. Any transportation charges paid by Seller for which Seller is entitled to reimbursement shall be shown on Seller’s invoice as a separate line item and the receipted freight bill shall be attached thereto, (b) in case of drop shipment, Seller shall send Buyer at time of shipment two copies of above packing list.
20. PRICE WARRANTY. Seller represents and warrants that its prices for the goods covered by this Order are no higher than the prices charged by the Seller for sales to other customers of goods of the same kind, in the same quantities, and under similar terms and conditions. If during the term hereof, Seller reduces the prices for any such goods, the corresponding price herein shall be likewise reduced.
21. LAW GOVERNING. This purchase order shall be governed by and construed according to the laws of the State of Georgia.
22. CONFIDENTIAL. The Seller shall not, without first obtaining the written consent of Buyer, in any manner advertise or publish the fact that the Seller has furnished or has contracted to furnish to Buyer, the articles herein mentioned. The Seller shall not disclose any of the details connected with this Order to any third party except as herein specified. The seller agrees to be responsible in manners within its control for the safeguarding of all Secret, Confidential, or Restricted matters that may be disclosed or that may be developed in connection with the work under this Order, and to require a similar agreement to all sub-contractors and agents of the Seller to whom any work or duty relating to this Order may be allotted.
23. REMEDIES. The rights and remedies set forth above shall be cumulative and in addition to any other remedies provided by law. The exercise of any remedy by Buyer shall not be deemed an election of remedies. Waiver by Buyer of a breach of any provision of this Order by Seller shall not be deemed a waiver of future compliance therewith and such provision, as all other provisions herein, shall remain in full force and effect.
24. EQUAL OPPORTUNITY. The following clause is applicable unless this Order/Contract is exempt under the rules, regulations, and relevant orders at the Secretary of Labor 41, CFR, Chapter 60). During the performance of this Order/Contract, the Seller agrees as follows:
(a) The Seller will not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin or physical or mental handicap. The Seller will take affirmative action to ensure that applicants are employed, and that the employees are treated during employment without regard to their race, color, religion, sex, national origin or physical or mental handicap. Such action shall include, but not be limited to the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Seller agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the Company setting forth the provisions of this nondiscrimination article.
(b) The Seller will, in all solicitations or advertisements for employees place by or on behalf of the Seller, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, national origin or physical or mental handicap.
The Seller will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice, to be provided by the Company, advising the said labor union or workers’ representative of the notice in conspicuous places available to employees and applicants for employment.
(d) The Seller will comply with all provisions of the Executive Order 11248, as amendment with the affirmative action for workers with disabilities clause set forth in Section 503 of the Rehabilitation Act of 1973, and its implementing regulations; and with the affirmative action for disabled veterans of the Vietnam era clause set forth in 38 US 4212 and its implementing regulations; and these are by reference incorporated herein.
(e)The Seller will furnish all information and reports required by Executive Order 11246, as amended; with the affirmative action for workers with disabilities clause set forth in Section 503 of the Rehabilitation Act of 1973, and its implementing regulations; and with the affirmative action for disabled veterans and veterans of the Vietnam era clause set forth in 38 US 4212, and its implementing regulations; and these are by reference incorporated herein.
(f) In the event of the Seller’s noncompliance with the nondiscrimination article of this Order/Contract or with any of the said rules, regulations or orders, this Order/Contract may be canceled, terminated, or suspended in whole or in part and the Seller may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order 11246, as amended with the affirmative action for workers with disabilities clause set forth in Section 503 of the Rehabilitation Act of 1973, and its implementing regulations; and with the affirmative action for disabled veterans and veterans of the Vietnam era clause set forth in 38 US 4212, and its implementing regulations; and those are by reference incorporated herein.
(g)The Seller will include the provisions of paragraph (a) through (g) in every subcontract or purchase order unless exampled by rules, regulations or order of the Secretary of Labor issued pursuant to Section 204 Executive Order 11246, as amended; with the affirmative action for workers with disabilities clause set forth in Section 503 of the Rehabilitation act of 1973, and its implementing regulations; and with the affirmative section for disable veterans and veterans of the Vietnam era clause set forth in 38 US 4212, and its implementing regulations; and these are by reference incorporated herein, so that such provisions will be binding upon each subcontract or vendor. The Seller will take such action with respect to any subcontract or purchase order as the Commission may direct as a means of enforcing such provisions, including sanctions for noncompliance, however, that in the event the Seller becomes involved in or is threatened with litigation with a subcontractor or vendor as a result of such direction by the Commission, the Seller may request the United States to enter in to such litigation to protect the interest of the United States.
25. LOSS OR DAMAGE CAUSED BY SELLER. In the event Seller, its subcontractors and/or lower tier subcontractors, its employees or agents enter premises occupied by or under the control of the Buyer in the performance of this Order, Seller shall indemnity and hold harmless Buyer, its officers and employees from any loss, cost, damage, expense or liability by reason of property damage, personal injury or death arising out of or in connection with the actions or omissions of Seller, its subcontractors and/or lower-tier subcontractors, its employees or agents on or about such premise. Without in any way limiting the foregoing undertakings, Seller and its subcontractors at all tiers shall maintain public liability and property damage insurance in reasonable limits covering the obligation set forth above and shall maintain proper Worker’s Compensation insurance covering all employees performing this Order.
26. TAXES. Except as Buyer has otherwise provided in this Order, the prices stated in the Order include all applicable Federal, state and local taxes and duties.
27. NUMBER. As used herein the singular shall be deemed to include the plural and the plural shall be deemed to include the singular.
28. HEADINGS. Headings are for convenience only and shall not be used to interpret the intent of the parties hereto.
29. NON-DIVISIBILITY OF ORDER. This agreement is entire as to all of the performance to be rendered under it. Branch of any of the performances to be rendered by Seller shall constitute a breach of the entire agreement.
30. ENTIRELY OF ORDER. This agreement can only be amended by a writing signed on behalf of each of the parties.
31. NOTICES. All notices must be in writing and shall be effective when delivered to the party to whom the notice is directed. The Seller agrees to notify the Buyer or any actual or potential labor dispute which may delay or threaten to delay the timely performance of this Order. The Seller further agrees to notify Buyer if Seller is going to be delinquent in the performance of its obligation as defined in the Order.
32. TIME. Time is of the essence in the performance of this Order.