DSI Purchase Order General Terms and Conditions
1. DEFINITION OF TERMS.
“Buyer” means Display Specialties, Inc., a Kentucky corporation.
“Seller” means the supplier furnishing the Goods and/or Services
described in the Order.
“Order” means the requirements in this purchase order, including
the information contained on the front side hereof, these general terms
and conditions, and any subsequent modification agreed to in writing by
both parties.
“Goods” or “Services” means the Goods and/or Services
described in the Order.
2. APPLICABILITY OF TERMS. These terms and conditions apply to Buyer’s purchase, and Seller’s sale, of the Goods and/or Services set forth on the front side of this Order
3. ACCEPTANCE. Seller’s verbal, written or electronic acknowledgement, or Seller’s initiation of performance constitutes acceptance of the Order. Acceptance by Seller is expressly limited to the terms and conditions of this Order. No term or condition stated by Seller in acknowledging or otherwise accepting this Order is binding upon Buyer unless specifically agreed to by Buyer in writing. ALL TERMS AND CONDITIONS PROPOSED BY SELLER WHICH ARE DIFFERENT IN ANY WAY FROM, OR ARE IN ADDITION TO THOSE CONTAIN HEREIN, ARE UNACCEPTABLE TO BUYER, ARE CONSIDERED TO BE A MATERIAL ALTERATION OF THOSE CONTAINED HEREIN, ARE EXPRESSLY REJECTED BY BUYER AND SHALL NOT BECOME PART OF THIS ORDER. By accepting the Order, Seller agrees that Goods and/or Services covered by the Order are satisfactory for Buyer’s intended purpose, if disclosed, and that any defect in the Goods and/or Services may cause special damages to Buyer. An Order may be modified or cancelled by Buyer at any time prior to acceptance by Seller.
4. DELIVERY/SHIPPING. Time is of the essence. The prices set forth in this Order are for delivery FOB point of origin, unless otherwise stated on the front of this Order, and shall include all delivery and unloading at the destination identified. Title and risk of loss shall remain with the Seller until the Buyer has accepted the Goods and/ or Services at the destination specified. If the Goods and/or Services do not conform to the Order, Buyer may refuse any Goods and/or Services and cancel the Order for any Goods and/or Services. Buyer’s acceptance of any part of an Order does not waive Buyer’s right to cancel or return all or any portion of the Goods and/or Services, or to make any claim for damages, including manufacturing costs, loss of profits or other special, incidental, indirect, or consequential damages. These rights are in addition to any other remedies provided by law. Shipment of Goods must be made via the most economical route, and in a single shipment unless otherwise instructed in the Order. Delivery is not deemed complete until Goods are actually received and accepted by Buyer. No charge will be made for packing, crating, storage, insurance, shipping, or delivery expense unless authorized in the Order. Buyer may return overshipments at Seller’s expense. Buyer’s count and weight is final and conclusive if a packing slip is not enclosed with the shipment.
5. PAYMENT. Payment of invoice does not constitute acceptance of Goods and/or Services and is subject to adjustment for errors, shortages, defects in Goods and/or Services or other failure of Seller to meet the requirements of the Order. Without limiting the rights of the Buyer contained in the prior sentence, Buyer agrees, unless otherwise stated on the front of this Order, to pay for the Goods and/or Services subject to this Order and in compliance with the terms and conditions hereof, within thirty days of Buyer’s receipt of a valid invoice. Any payments made within ten days of Buyer’s receipt of a valid invoice shall be entitled to a two percent discount. Buyer shall have the right to set off against any sums due to Seller under this Order or otherwise, all sums owed by Seller to Buyer, and Buyer shall have the right to suspend payment of any sums due to Seller under this Order or otherwise pending any dispute between Buyer and Seller concerning sums that Buyer alleges that Seller owes to Buyer.
6. INSPECTION. All Goods and Services are subject to inspection and test by Buyer, to the extent practical, at all places and times, including the period of performance, and prior to acceptance. Buyer may inspect at Seller’s premises or any of its subcontractors engaged in the performance of this Order except in those areas as determined by the Seller to be restricted proprietary areas. Seller is not relieved of its obligations to replace any defective Goods and/or Services because of any failure to identify defects.
7. WARRANTY. In addition to any warranty implied by fact or law, or warranties elsewhere in the Order, Seller expressly warrants that: 1. All Goods are free from defects in design, materials, and workmanship; conform strictly to specifications, drawings and approved samples, if any; are fit and sufficient for the purpose intended, and are merchantable; 2. All Services will be performed in a reasonable and workmanlike manner and conform to all requirements in the Order. These warranties, together with all other warranties of Seller, are available to Buyer, its successors, assigns and customers. All warranties survive, and shall not be deemed waived by Buyer’s, inspection, test, acceptance and payment of the Goods and/or Services.. If Seller refuses to correct promptly defective or nonconforming Goods and/or Services, Buyer may upon reasonable notice to Seller make the required corrections and charge the Seller with all related costs. Seller will indemnify, defend and hold harmless Buyer from liability, loss, claim, damage (including but not limited to incidental and consequential damages to the full extent permitted by law) and expense, including reasonable attorney’s fees, incurred by Buyer if the Goods and/or Services do not conform to the warranties. This indemnification is in addition to any other remedies provided by law.
8. TERMINATION. (a) Without cause: Buyer may terminate the Order in whole or in part at any time without cause by written notice to Seller, and will reimburse Seller for its reasonable and necessary direct expenses incurred in connection with the Order prior to termination but not already paid, but will not be liable for any loss of profits or other indirect, special, incidental or consequential damages; (b) With cause: If Seller fails to comply with any Order, or in the event of any proceeding by or against Seller in bankruptcy or insolvency or for appointment of a receiver or trustee or an assignment for the benefit of creditors, Buyer may, in addition to any other right or remedy provided by this Order or by law, terminate all or part of this Order by written notice to Seller without liability to Seller. If this occurs, Buyer may purchase similar Goods or Service elsewhere as provided for in the Uniform Commercial Code, as adopted by the State of Kentucky.
9. DELAYS. Seller is not liable for damages from a delay in performance or delivery due to causes beyond its reasonable control and without its fault or negligence, including force majeure, provided Seller promptly notifies Buyer in writing. However, if Seller otherwise fails to proceed with performance of the Order or to make deliveries within the time specified in the Order, or if Buyer has reasonable doubt as to Seller’s ability to perform its obligations, Buyer in addition to its remedies at law may approve a revised delivery schedule or terminate the Order in whole or in part without liability to Buyer.
10. BUYER’S RIGHT TO SUSPEND PERFORMANCE. Buyer may require Seller to suspend performance of all or part of the Order for an indefinite period of time. In no event will this exceed twelve (12) consecutive calendar months. If Buyer exercises this right, Seller must cease performance of the Order, as directed by Buyer. Seller agrees to commence performance of the suspended Order within a reasonable time after receiving Buyer’s notice. An equitable adjustment in the price or the delivery dates will be made if Buyer requires a suspension of an Order.
11. CHANGES. Buyer has the right to make changes within the scope of an Order. If any change causes an adjustment in the Order price, or in the time required for performance, an equitable adjustment will be made and the Order will be modified accordingly. Any claim for adjustment must be made within a reasonable time not to exceed thirty days from the date the change is ordered.
12. BUYER’S EQUIPMENT. Unless otherwise agreed in writing, all tools, equipment or material furnished to Seller by Buyer or purchased by Seller and reimbursed by Buyer, belong to Buyer (collectively, “Buyer’s Equipment”). Buyer’s Equipment must be adequately identified by Seller as “Property of Display Specialties, Inc.” and must be safely stored and properly maintained by Seller. Seller will not substitute any property for Buyer’s Equipment and will not use Buyer’s Equipment except in filling Buyer’s Orders. Buyer’s Equipment will be available for inspection by Buyer at all times. Seller will return Buyer’s Equipment on request in the same condition as originally received by Seller, reasonable wear and tear excepted.
13. CONFIDENTIAL INFORMATION. Seller will not, without Buyer’s written consent, disclose any drawings, data, designs, plans, specifications, know-how, discoveries, production methods or other confidential information, specifically including but not limited to, any information that Seller is provided about Buyer’s customer or customers associated with this Order (collectively, “Confidential Information”) belonging to or supplied by or on behalf of Buyer to any person other than personnel of Seller directly involved with the performance of the Order. Seller must take reasonable precautions against any Confidential Information being acquired by unauthorized persons and must not employ any Confidential Information for its own use or for any purpose whatsoever except in the performance of the Order. Buyer retains title to all Confidential Information. Seller will, at Buyer’s request or completion of the Order, return or deliver all tangible Confidential Information to Buyer. The term “Confidential Information” does not include information that is generally published or lawfully available to Seller from other sources without restriction or that was known to Seller prior to disclosure to Seller by Buyer.
14. PACKING. All Goods must bear markings and labels required by applicable federal, state, and municipal laws and regulations. Prices include all charges for packing, crating, and transportation to FOB point of origin.
15. FEDERAL GOVERNMENT CONTRACTS. If the Order is issued under a Federal Government contract or higher-tier subcontract, the following Federal Acquisition Regulation (FAR) clauses, as in effect on the effective date of the Order, are hereby incorporated by reference and made a part hereof: FAR 52.219-8, Utilization of Small Business Concerns (15 U.S.C. 637(d)(2) and (3) (must be flowed down by Seller to lower tier subcontracts over $500,000 that offer subcontracting opportunities); FAR 52.219-9, Small Business Subcontracting Plan (applicable if the Order is over $500,000); FAR 52.222-26, Equal Opportunity (Executive Order 11246); FAR 52.222-35, Affirmative Action for Disabled Veterans and Veterans of the Vietnam Era (38 U.S.C. 4212(a)); FAR 52.222-36, Affirmative Action for Workers with Disabilities (29 U.S.C. 793); and FAR 52.222-41, Service Contract Act of 1965, as amended (41 U.S.C. 351, et seq.).
16. REGULATORY COMPLIANCE. Seller represents and warrants that the Goods have been designed, manufactured and sold and Services performed in compliance with applicable Federal, State, and municipal laws, rules, and regulations.
17. CHEMICAL SUBSTANCES. Seller represents and warrants that all chemical substances contained in any Goods are included on the list of chemical substances compiled and published by the Administrator of the Environmental Protection Agency pursuant to the Toxic Substance Control Act inventory reporting regulations.
18. INDEMNIFICATION. Seller will indemnify, defend and hold the Buyer, its directors, officers, employees and agents harmless from and against all liability, losses, claims, damages (including but not limited to incidental and consequential damages to the full extent permitted by law), and expenses, including reasonable attorney’s fees, which may result in any way from: 1. accident, injury, or damage either to person or property or from death of any persons by reason of any act or omission on the part of the Seller, its agents, employees, or subcontractors except to the extent that the accident, injury, damage, or death is due solely and directly to the negligence of the Buyer; and 2. Seller’s handling, packaging, labeling, storage, treatment, removal, transportation, and disposal of any waste material made under any environmental laws, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. Sections 9601 et seq. as amended (“CERCLA”)), the Hazardous Materials Transportation Act (49 U.S.C. Sections 5101 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. Sections 6901 et seq. (“RCRA”)), or any other current or future federal, state or local environmental laws of similar effect. Seller will at all times maintain liability, property damage, and employee liability insurance to protect Buyer from all the foregoing risks, and will supply on request certificates evidencing this coverage.
19. INTELLECTUAL PROPERTY INFRINGEMENT. Seller will indemnify, defend, and hold Buyer and any customer of Buyer to which the Goods and/or Services are resold or provided, and their respective directors, officers, employees and agents harmless from and against all liability, losses, claims, damages, and expenses, including reasonable attorney’s fees, resulting from any actual or alleged trademark, patent, trade secret, or copyright infringement, or misappropriation or any resulting litigation, with respect to any Goods and/or Services or their intended use. This obligation survives inspection, acceptance and payment of or for any Goods and/or Services.
20. SUBCONTRACTS. Seller agrees not to subcontract any Goods and/or Services without Buyer’s prior written approval. Seller is responsible for the acts and omissions of its approved subcontractors, and of persons employed by approved subcontractors. Seller is responsible for ensuring that its approved subcontractors do not further subcontract any Goods and/or Services without Buyer’s prior written approval.
21. CATALOG. Seller hereby authorizes, or reaffirms its authorization if it has already done so, Buyer to place photos or video facsimiles of the Goods in any catalog or other written material that the Buyer produces or has produces for sales and marketing purposes. The use or publication of such photos or video facsimiles does not and shall not obligate the Buyer to sell only the Goods of the Seller , and Buyer shall be totally free without liability to Seller, to sell products manufactured by other parties that are similar in nature to the Goods.
22. WORKS FOR HIRE. Buyer shall at all times have ownership in and the rights to any creative works, product improvements and modifications, research data, reports, designs, recordings, inventions, graphical representations or works of similar nature (“Works”) to be delivered by Seller to Buyer under this Order. Seller agrees that the Works are “works for hire to be delivered under this Order and assigns all of Seller’s rights, title and interest herein to the Buyer and agrees to execute all documents required by Buyer, and to cooperate with Buyer in all actions necessary for Buyer, to perfect and protect its interest in the Works.
23. WAIVER. Buyer’s failure to insist upon strict performance of the Order, or to exercise its rights under the Order, or the waiver of any breach of the Order does not waive subsequent compliance with the Order. All rights and remedies under the Order are cumulative and in addition to any other rights and remedies provided in law or equity.
24. LAW GOVERNING. This Order is governed by the laws of the State of Kentucky without regard to conflicts of law principles. The UN Convention on the International Sale of Goods does not apply to this Order. Any action alleging breach of the terms and conditions of this Order must be brought in the courts of the State of Kentucky, Courts of Campbell County or in the United States District Court, Eastern District of Kentucky at Covington, Kentucky.
25. ASSIGNMENT. Seller may not assign the Order or any of its rights under the Order (including but not limited to any amounts due from Buyer) without Buyer’s prior written consent. No purported assignment by Seller is binding on Buyer without its written consent. Seller will require that approved assignees cannot divulge any information concerning the Order except as permitted by the Order. Payments to an assignee of any claim arising under the Order are subject to reduction or set-off for any present or future claims Buyer may have against Seller.
25. COMPLETE AGREEMENT. This Order contains the complete and entire agreement
between the parties. NO CHANGE, ADDITION, OR MODIFICATION OF ANY OF THESE
TERMS OR CONDITIONS IS VALID OR BINDING ON EITHER PARTY UNLESS IN WRITING
SIGNED BY A DULY AUTHORIZED REPRESENTATIVE OF BUYER. All titles to Articles
contained in the Order are for identification only and do not affect the
meaning or interpretation of the Order.