GENERAL SALES CONDITIONS
This Purchase Order includes and is subject to the following covenants, terms and conditions.
1. OFFER, ACCEPTANCE, MODIFICATION.
Written acceptance of this Purchase Order, or commencement of performance of any work or services pursuant to this Purchase Order, shall constitute acceptance of this Purchase Order. Such acceptance is limited to these terms and conditions. All terms and conditions proposed by Seller that are different from or in addition to this Purchase Order are expressly rejected by Buyer. No purported verbal agreement or other understanding that attempts in any way to modify the conditions of the agreement resulting from this Purchase Order will be binding upon Buyer. Any modification to this Purchase Order shall be made only in writing signed by both parties to this Purchase Order. The placement of this Purchase Order by Buyer is specifically conditioned upon the terms and conditions stated herein and entirely excludes any terms and conditions that Seller may seek to impose in its invoice or any other communication, except to the extent that such terms and conditions have been expressly agreed in writing by Buyer.
This Purchase Order shall not be executed at prices higher than those specified on the Purchase Order, unless otherwise agreed to in writing by the Buyer. The price specified on this Purchase Order includes all subcontracting costs associated with this Purchase Order. Buyer shall have no responsibility for any increased costs incurred by Seller in connection with any material procured, labor or subcontractors, unless such additional costs shall have been negotiated and agreed to in writing by Buyer.
- The prices specified on this Purchase Order include all federal, state and local taxes, domestic or foreign, that Seller is required by law to collect from Buyer and from which Seller cannot obtain an exemption. Such taxes shall be separately stated on Seller’s invoices and shall be paid by Buyer, unless an exemption is available. Seller shall provide Buyer with appropriate evidence of the payment thereof to the Governmental/ regulatory authority if so requested by the Buyer.
- Unless otherwise agreed to in writing by the Buyer, the price specified on this Purchase Order includes all charges for packing, cartage, storage, drayage, and transportation to the F.O.B. point. Seller shall pay all delivery charges.
Seller warrants that the prices will comply with applicable government law and regulations. Buyer shall, in no event, be responsible for any liability that may become due on account of any alleged non-payment of any or all taxes, levies, duties, assessments, deductions, penalties or interest thereon.
3. SHIPPING AND PACKING.
All shipments must be accompanied by a packing slip, which describes the articles, states the Purchase Order number, and shows the shipment’s destination. Seller agrees to promptly forward the original bill of lading or other shipping receipt for each shipment in accordance with Buyer’s instructions. No charges will be allowed for packing, crating, and transportation unless stated in this Purchase Order.
- Equipment shipped hereunder must be shipped without oil or any other fluids and must comply with all Buyer’s specifications concerning compliance with local, state, and federal environmental regulations, including, but not limited to, those dealing with air pollution control, waste water control, chemical and employee exposure.
Seller shall bear all liability for spillage if the shipment does not so comply.
4. DELIVERY – RISK OF LOSS.
Deliveries shall be made both in quantities and at times specified on the face of this Purchase Order or in Buyer’s schedules and time is of the essence. Buyer shall not be required to make payment for goods delivered to Buyer that are in excess of quantities specified in Buyer’s delivery schedule on this Purchase Order or in written releases issued by Buyer. Buyer may reject any deliveries made more than two weeks after or before the specified delivery date.
- In the event Seller fails to meet the agreed upon delivery requirements for reasons other than those specified in paragraph 12 below, and Buyer requires a more expeditious method of transportation for the goods than the transportation method originally specified, Seller shall ship the goods as expeditiously as possible at Seller’s expense
- Unless provided otherwise in this Purchase Order, all goods shall be sold F.O.B destination. Seller shall be responsible for and bear the risk of any loss or damage to the goods until received by the Buyer. It shall be responsibility of the Seller to arrange insurance of the goods during the aforesaid transit. The Buyer agrees to furnish all such information as may be required by the Seller to effect the aforesaid insurance.
Seller agrees to promptly render after delivery of goods or performance of services, correct and complete invoices to Buyer and to accept payment by check or, at Buyer’s discretion, other cash equivalent (including 1 demand drafts or electronic transfer of funds). Payment shall become due on the 2nd day of the 2nd month following the date on which the Buyer receives the goods or services, except as may otherwise be agreed by the parties in writing. Buyer may withhold payment pending receipt of evidence, in such form and detail as Buyer may direct, of the absence of any liens, encumbrances, and claims on the goods or services provided under this Purchase Order. Buyer may set off any amount owed by Seller or any of its affiliated companies to Buyer, against any amount owed by Buyer to Seller under this Purchase Order.
6. WARRANTIES OF SELLER.
Seller expressly warrants that all goods or services covered by this Purchase Order (i) conform to the Purchase Order, specifications, drawings, samples, and descriptions furnished to or by the Buyer, (ii) are merchantable, of good material and workmanship, and free from defect, and (iii) are fit and sufficient for the particular purpose intended by Buyer. If Seller has participated in the design of the item or approved the design, Seller also warrants that the items are free from defects in design. All goods and services are subject to Buyer’s inspection. Payment for, inspection of, or receipt of goods or services shall not constitute acceptance of the goods or a waiver of any breach of warranty.
7. REJECTION OF GOODS.
Buyer will be entitled to notify Seller of any shortages or damages to the good up to 90 days from the date on which the goods are delivered to Buyer. Nonconforming or defective goods may be returned to the Seller for, at the Buyer’s option, full credit or replacement with new goods at the Seller’s risk and expense, including all expenses for labor and materials in dealing with or removing the defective parts, all charges for handling, sorting, packaging and transportation both ways. No replacement of nonconforming goods may be made except as authorized by a replacement order signed by Buyer. Seller shall be given a reasonable opportunity to inspect the damaged goods at its own cost within a period of 15 days from the date of notification of rejection of nonconforming or defective goods.
Buyer at any time in writing may make changes in the drawings, designs and specifications of the goods or otherwise change the scope of the work covered by this Purchase Order, including work with respect to such matters as drawings, designs, specifications, inspection, testing or quality control, the method of packing and shipping, the place of delivery, shipping instructions, and quantity or delivery schedules. Seller agrees to promptly make such changes. If such changes affect the cost or time required for performance, and if Seller makes claim for adjustment in writing within fourteen (14) days of receipt of notification of change, an equitable adjustment shall be made by the parties, and this Purchase Order shall be modified accordingly. Otherwise, such claim for equitable adjustment is waived and the Purchase Order shall be deemed to be modified. Seller shall diligently continue performance of the Purchase Order, as changed, pending agreement on the amount of an equitable adjustment. Nothing contained in this Purchase Order shall relieve or excuse Seller from proceeding without delay in performing this Purchase Order as changed. Seller shall not make any change in design, processing, packing, shipping, or place of delivery without Buyer’s prior written approval.
9. TERMINATION FOR BANKRUPTCY.
Buyer may immediately terminate this Purchase Order without liability upon the happening of any of the following or any other comparable event: (i) insolvency of the Seller; (ii) filing of a voluntary or involuntary petition in bankruptcy by or against Seller; (iii) appointment of a receiver or trustee for Seller; (iv) any accommodation by Buyer, financial or otherwise, not contemplated by this Purchase Order, that are necessary for Seller to meet its obligations under this Purchase Order; or (v) execution of an assignment for the benefit of creditors by Seller, provided that such petition, appointment, or assignment is not vacated or nullified within fifteen (15) days after such event.
Seller will reimburse Buyer for all costs Buyer incurs in connection with any of the foregoing whether or not this Purchase Order is terminated, including, but not limited to, all attorneys’ or other professional fees.
10. TERMINATION FOR CONVENIENCE.
In addition to any other rights of Buyer to cancel or terminate this Purchase Order, Buyer may terminate all or any part of this Purchase Order at any time and for any reason by giving written notice to Seller. Upon receipt of such notice, Seller will immediately stop work on this Purchase Order or the terminated portion thereof, and notify any subcontractors to do likewise. Buyer shall pay to Seller the Purchase Order price for all goods or services that have been completed in accordance with this Purchase Order and not previously paid for. Where articles or materials are to be specifically manufactured for Buyer hereunder and where Seller is not in default, an equitable adjustment shall be made to cover Seller’s actual cost, excluding profit, for work-in-process and raw materials as of the date of termination to the extent such costs are reasonable in amount and are properly allocable or apportionable under generally accepted accounting principles to the terminated portion of this Purchase Order. Buyer will not be liable for any charges or expenses incurred by Seller in advance of the normal lead time necessary to meet scheduled delivery dates nor for any expenses, charges or liability incurred subsequent to the giving of notice of cancellation. Buyer will make no payments for finished goods, work-in-process, or raw materials in amounts in excess of those authorized by Buyer or for any undelivered goods which are in Seller’s standard stock or which are readily marketable. Seller shall submit any claim to Buyer within thirty (30) days after the date of termination or such claim shall be waived. Payments made to Seller under this Section 10 represent the sole responsibility of Buyer in case of cancellation of the Purchase Order and Seller agrees not to charge any other costs, expenses or fees to Buyer nor shall Buyer be liable for any other costs, expenses or fees arising out of the cancellation or termination of the Purchase Order under this Section 10.
11. TERMINATION FOR DEFAULT.
In addition to any other remedies or rights afforded by law, Buyer reserves the right to cancel all or any part of this Purchase Order, for default of Seller, if Seller: (i) repudiates or breaches any of the terms of this Purchase Order, including Seller’s warranties; (ii) fails to perform services or deliver goods as specified by Buyer; or (iii) fails to make progress so as to endanger timely and proper completion of services or delivery of goods, and does not correct such failure or breach within ten (10) days after receipt of written notice from Buyer specifying such failure or breach. If Buyer terminates its purchase obligations pursuant to this paragraph, Buyer shall have no obligations to Seller in respect of the terminated portion of this Purchase Order and Buyer’s liability shall be limited to the delivered portion of this Purchase Order at the rate specified on the face hereof. Buyer shall be entitled to recover all damages or losses attributable to such repudiation, breach, or failure by Seller.
12. LABOR DISPUTES/ INVENTORY
Seller will notify Buyer immediately of any actual or potential labor dispute delaying or threatening to delay the timely performance of any open purchase order. If requested by the Buyer, Seller will establish, at Seller’s expense, a 30-day inventory of finished goods, at a site mutually agreed upon with Buyer.
13. PATTERNS, TOOLS, AND EQUIPMENT.
Buyer shall have title to and the right of immediate possession of any pattern, tools, jigs, dies, equipment or materials furnished or paid for by Buyer, and Seller shall not use such tooling while in its possession for any work other than that of Buyer. In the event Seller purchases such tooling with Buyer’s funds or is reimbursed by Buyer, Seller shall execute a Bill of Sale and any and all other documents necessary to transfer title free and clear of any liens to Buyer. While in Seller’s possession, such property shall be held by Seller as a bailee and shall be maintained in good condition at no further cost to Buyer. Seller shall maintain and administer a program for the maintenance, repair and preservation of such property, and appropriate identification of its ownership in accordance with sound industrial practice. When requested, Seller shall furnish inventory schedules on the property, or return the property to
Buyer in the condition in which it was received, except for reasonable wear and tear and consumption in the normal performance of work for Buyer. Any material furnished by Seller and paid for by or charged to Buyer shall be owned by
Buyer and held by Seller as a bailee and Seller shall assume the risk for any damage or loss thereto. Seller shall indemnify and hold Buyer, its agents and employees, harmless against all claims, demands, liabilities, costs and expenses, based upon or arising out of the use, storage or handling of the equipment and/or tooling until returned to Buyer’s possession. Seller shall sign, or hereby authorizes Buyer to sign on its behalf, any documents deemed reasonably necessary by Buyer, to be
filed with Federal, State or local officials to record Buyer’s title and interest in any patterns, tools, jigs, dies, equipment or materials furnished or paid for by Buyer
14. NON-DISCLOSURE OF INFORMATION, DESIGNS AND DATA.
Seller shall keep confidential, during the existence of this Purchase order as well as after, the features of any equipment, tooling, patterns, designs, drawings, processes, engineering and business data and other technical and proprietary information (without limitation), furnished by
Buyer and use such items only in production of supplies under Purchase Orders from Buyer, unless Buyer’s written consent is first obtained. Upon termination or completion of this Purchase Order, Seller shall return all such items to Buyer or make other disposition, as directed by Buyer.
15. INTELLECTUAL PROPERTY.
Seller warrants that any materials, supplies or other goods furnished by Seller or its affiliates to Buyer (except such goods as are manufactured by the Seller strictly as per Buyer’s specifications and designs) will not infringe any French or foreign patent, trademark, copyright, or mask work right by reason of their manufacture, use or sale, and will not misuse or misappropriate any trade secret.
Seller agrees to (i) indemnify, defend, and hold harmless Buyer, its agents, employees, successors and customers against all such claims, demands, losses, suits, damages, liabilities and expenses (including reasonable attorneys’ fees) arising out of any suit, claim or action for actual or alleged direct or contributory infringement of, or inducement to infringe, any French or foreign patent, trademark, copyright, or mask work right by reason of the manufacture, use, or sale of the goods or services Purchase Ordered (except such goods or services as are manufactured by the Seller as per Buyer’s specifications and designs), including infringement arising out of compliance with specifications furnished by Buyer, or for actual or alleged misuse or misappropriation of a trade secret resulting directly or indirectly from Seller’s actions; (ii) waive any claim against Buyer under the Uniform Commercial Code or otherwise, including any copyright or mask work right infringement or the like, including claims arising out of compliance with specifications furnished by Buyer; and (iii) grant to Buyer a worldwide, non-exclusive, royalty-free, irrevocable license to repair and have repaired, to reconstruct and have reconstructed, the goods ordered by this Purchase Order.
Seller assigns to Buyer all right, title and interest in and to all trademarks, copyrights and mask work rights in any material created for Buyer under this Purchase Order.
16. INDEMNIFICATION AND INSURANCE.
Seller shall indemnify, defend, and hold harmless Buyer, its agents, employees, customers, and users of its and their products against any and all suits, actions or proceedings, at law or in equity, and from any and all claims, demands, losses, judgments, damages, costs, expenses, or liabilities, including reasonable attorneys’ fees, resulting from the death or injury to any person or damage to any property arising out of or in any way connected with the performance of this contract by Seller or the goods provided hereunder, or with respect to matters and allegations that the goods are defective, unfit or unsafe, or that the goods do not meet applicable laws or regulations, even if the loss results from the, concurrent or partial negligence of Buyer. At Buyer’s request, Seller shall defend such claims or suits at Seller’s expense by reputable counsel satisfactory to Buyer.
§ Seller shall, at its expense, maintain insurance coverage in amounts satisfactory to Buyer for Workers’ Compensation, Employer’s Liability and Comprehensive General Bodily Injury and Property Damage or similar insurance policy may be available in FRANCE. Seller shall furnish Buyer with certificates setting forth the amounts of coverage, policy number(s) and expiration date(s)
17. TECHNICAL INFORMATION.
Seller agrees not to assert any claim (other than a claim for patent infringement) with respect to any technical information that Seller has disclosed or may hereafter disclose to Buyer in connection with the goods or services covered by this Purchase Order.
In providing goods or services hereunder, Seller will comply with any and all applicable federal, state, local, and foreign laws and regulations 5.
19. COMPANY INFORMATION.
The head office : SERCO SAS - Z.A. de Meyrol, 2 rue de l'Artisanat - 26200 MONTELIMAR FRANCE -
Tel : +33 (0) 4 75 01 42 98 - Fax : +33 (0) 4 75 01 79 62
Business Identification Number : 48120914600010 - Registration Number : 481 209 146
20. WEB HOSTING
Web hosting : OVH
Company : OVH
Website : www.ovh.com
Adress : 2 rue kellermann
59053 ROUBAIX Cedex 1
Phone : +33 (0)8 203 203 63
E-Mail : email@example.com
communication form to be followed on the website of "OVH"