1.
OFFER AND ACCEPTANCE. This Purchase Order
constitutes an offer by Cisco High-Lift of Texas, Ltd. (the “Purchaser”) to
purchase from the addressee (the “Seller”) the goods identified on the face
side hereof on the terms and conditions set forth below. This is not a firm
offer, and Purchaser may revoke it at any time prior to acceptance by Seller.
Purchaser objects to the inclusion of any terms or conditions proposed by
Seller which are different from or additional to the terms and conditions of
this Purchase Order, and Purchaser’s acceptance of the goods of Seller shall
not constitute assent to any such terms and conditions that may be proposed by
Seller. Any such terms shall be void and the terms herein shall constitute the
complete and exclusive statement of the terms and conditions of the contract
between the parties. Purchaser shall be bound by this Purchase Order when
Seller executes and returns the acknowledgment copy hereof (if any) to
Purchaser. Any conduct by Seller which recognizes the existence of a contract
pertaining to this Purchase Order shall constitute acceptance by Seller of this
Purchase Order and all its terms and conditions. If this Purchase Order has
been issued by Purchaser in response to any offer and the terms herein differ
from any terms of such offer, then the issuance hereof by Purchaser shall
constitute an acceptance of such offer subject to the express conditions that
Seller assents to such different terms herein and acknowledges that this
Purchase Order constitutes the entire agreement between Purchaser and Seller
with respect to the subject matter hereof. Seller shall be deemed to have so
assented and acknowledged unless it notifies Purchaser to the contrary in
writing within 10 days of receipt hereof.
2. PURCHASE PRICE AND PAYMENT. The purchase price
of the goods is as set forth on the face side or if no purchase price is there
stated, the purchase price shall not be higher than the lowest of the price
last (a) quoted; (b) charged to Purchaser; or (c) marked price. In any case,
the purchase price is a firm price and is not subject to increases in the
prices of Seller’s manufacturers or suppliers, or due to any other act or
event. Seller warrants that the prices for the goods sold to Purchaser
hereunder are not less favorable than those currently extended to any other
customer for the same or like goods in equal or smaller quantities. In the
event Seller reduces its price for such goods during the term hereof, Seller
shall reduce the prices hereof accordingly. Unless otherwise specified on the
face side, Purchaser shall pay for the goods with its check between 60-90 days
after its acceptance of the goods. If a discount is allowed to Purchaser for
payment within an agreed upon period, the time for taking such discount will
not begin until the later of the date Purchaser actually received an invoice or
the date of delivery of the goods.
3. SALES AND USE TAXES AND OTHER CHARGES. Except as
may be otherwise provided herein, the purchase price includes all applicable
federal, state and local taxes and other charges in effect on the date hereof.
In cases of new taxes or other charges or increased rates, or the repeal of
taxes or other charges or reduction of rates, the prices payable under this
Purchase Order shall be adjusted accordingly. The goods purchased hereunder are
to be used for one of the following purposes: (a) resale; (b) packaging and
shipping materials to transfer merchandise to customers; (c) as an ingredient
or component of an article to be sold; (d) will be consumed or destroyed or
lose its identity in the manufacture of property destined for sale; (e)
machines or specific processing equipment and repair parts or replacement
thereof, exclusively and directly used by the Purchaser in the manufacturing of
personal property; (f) servicing by repairing and maintaining machines and
specific processing equipment, which property the Purchaser could purchase
without tax at the time of such service; (g) export; or (h) otherwise exempt by
statute.
4. CHANGES IN GOODS ORDERED. Purchaser reserves the
right at any time to direct changes, or cause Seller to make changes to
drawings, specifications of the goods or to otherwise change the scope of the
work covered by this Purchase Order, including work with respect to such
matters as inspection, testing or quality control, and Seller agrees to
promptly make such changes.
5. TERMINATION OF PURCHASE ORDER. In addition to
any other rights of Purchaser to cancel or terminate this Purchase Order,
Purchaser may at its option immediately terminate all or any part of this
Purchase Order, at any time and for any reason, by verbal notice confirmed in
writing, or by written notice. Purchaser shall not be liable for and shall not
be required to make any payments to Seller, directly or on account of any
claims by Seller’s subcontractors, to include, but not to be limited to, any
loss of anticipated profit, unabsorbed overhead interest on claims, product
development and engineering costs, rental, unamortized depreciation costs, and
general and administrative burden charges from termination of this Purchase
Order. Purchaser may terminate this Purchase Order for Seller’s failure to
comply with any terms hereof or other default. In the event of termination for
such non-compliance or default, Purchaser shall not be liable to Seller for any
amount; however, Seller shall be liable to Purchaser for any extra expenses or
damages incurred by Purchaser. Purchaser may also, by written notice of default
to Seller, cancel this Purchase Order, or any part thereof, under any of the
following circumstances: (a) if Seller fails to deliver goods or perform
services in accordance with the terms specified herein, or any extension hereof
by change order or amendment hereto; (b) if Seller so fails to make sufficient,
timely progress in Purchaser’s judgment as to endanger timely performance by
Seller of Seller’s obligations under this Purchase Order; or (c) if Seller
fails to comply with any other provisions of this Purchase Order.
6. DELIVERY. Delivery of goods shall be F.O.B. at
the location and on the date(s) specified on the face side hereof. Unless
otherwise specified on the face side, the goods must be delivered in a single
delivery and not in lots or installments. Detailed invoices shall be mailed at
the time goods are shipped to Purchaser. Separate packing slips must be
included in each shipment showing order number, quantity, part number and
description of goods therein. Time and date of delivery are the essence of the
contract arising from this Purchase Order. No shipments may be made prior to a
specified delivery date unless Seller is advised by Purchaser by telegram,
writing or verbal notice confirmed in writing to the contrary. Purchaser
reserves the right to withhold payment of invoices for materials shipped ahead
of schedule without Purchaser’s prior express approval. If delivery of items or
rendering of services is not completed by the time promised, the Purchaser
reserves the right, without liability, in addition to its other rights and
remedies, to terminate this Purchase Order by notice, effective when received
by Seller, as to the whole contract, and to purchase substitute items or
services elsewhere and charge Seller with any loss incurred time and expenses
regarding progress, deadline and general business adjustments.
7.
INSPECTION AND REJECTION. Purchaser may inspect
the goods before accepting delivery and before paying for the goods during
business hours at its place of business, or at the place to which Seller is to
ship the goods, or at the place at which any subpurchaser from Purchaser is to
accept the goods, or at any other reasonable place designated by Purchaser. The
goods are subject to inspection by Purchaser notwithstanding prior payment.
Rejected goods may be immediately returned at Seller’s expense and credit taken
at the time of the return, including the cost of transportation both ways. No
goods returned as defective may be replaced except as Purchaser may expressly
agree. If parts are not covered by a blueprint, they must be approved in writing
by Purchaser with the submission of samples. Goods may be rejected and refunded
if inspection shows they are not strictly in accordance with the samples,
specifications, drawings and other express and implied warranty requirements.
8. IDENTIFICATION; RISK OF LOSS; TITLE. Identification
of the goods shall occur when this Purchase Order is accepted by Seller; Risk
of loss and title to the goods shall not pass to Purchaser until the goods are
accepted by Purchaser.
9. QUALITY OF GOODS; WARRANTIES. All of the goods
shall be merchantable, free of defects in material and workmanship and shall
conform strictly to the description on the face side and to all drawings,
specifications, processes, materials, compounds and other criteria of
Purchaser. Seller warrants the goods shall be fit and sufficient for the
purpose Purchaser intends, including but not limited to dimensions, tolerances,
and tensile strength. These warranties shall survive Purchaser’s inspection and
shall run to Purchaser and to any of Purchaser’s customers or users of
Purchaser’s products. No term in any document or instrument of Seller that
purports to disclaim any implied warranty of merchantability, fitness for a
particular purpose or any other warranty, or that purports to disclaim liability
for Seller’s negligence, shall be effective against Purchaser. Seller will
maintain information to support compliance of the goods with the drawings and
specifications, warranties and other requirements of this Purchase Order and
will permit Purchaser’s representatives to inspect Seller’s manufacturing
process during the completion of this Purchase Order to determine such
compliance, but no such inspection by Purchaser’s representative shall relieve
Seller from complying with the terms of this Purchase Order. Seller further
warrants that it will have title to all of the goods furnished hereunder and
the right to sell such goods at the time of delivery to Purchaser, and all such
goods shall be new and unused (unless otherwise specified) at the time of delivery
to Purchaser.
10. NONCONFORMING GOODS. To the extent Purchaser
rejects goods as nonconforming, the quantities of this Purchase Order will
automatically be reduced unless Purchaser otherwise notifies Seller.
Nonconforming goods will be held by Purchaser for disposition at Seller’s risk.
Seller’s failure to provide written instructions within ten (10) days or such
shorter period as may be commercially reasonable under the circumstances after
notice of non-conformity, shall entitle Purchaser at Purchaser’s option, to
charge Seller for storage and handling or to dispose of the goods without
liability to Purchaser. Payment for nonconforming goods shall not constitute an
acceptance thereof, limit or impair Purchaser’s right to assert any legal or
equitable remedy, or relieve Seller’s responsibility for latent defects.
11. ON SITE WORK BY SELLER. If any of the work
required by this Purchase Order is to be performed on Purchaser’s premises or
on the premises of Purchaser’s job site, Seller agrees that all persons
performing such services for Seller shall be deemed Seller’s employees or
independent contractors and not agents of Purchaser, and Seller shall be solely
responsible for such work and shall indemnify Purchaser and hold it harmless
against any and all claims, loss and liability arising therefrom or in
connection therewith.
12. PATENTS, INDEMNIFICATION AND LICENSE.
(a) Seller agrees, at its expense, to defend any suit against
Purchaser for alleged infringement of patent or invention rights arising from the
sale or use of Seller’s goods or services and to indemnify and save Purchaser
harmless from any damages, or expenses of any nature whatsoever, paid or
incurred by Purchaser (or its customers) in connection with any such suit;
provided, however, that this indemnity shall not apply to any such damages or
expenses arising out of compliance by Seller with specifications furnished by
Purchaser.
(b) Seller, as part consideration for this Purchase Order
and without further cost to Purchaser, hereby grants and agrees to grant to
Purchaser an irrevocable non-exclusive royalty-free right and license to use,
sell, manufacture and repair products embodying any and all inventions and
discoveries made, conceived or actually reduced to practice, in connection with
Seller’s performance of this Purchase Order.
13. CONFIDENTIALITY. All Purchaser’s
specifications, documents, and prototype articles are Purchaser’s property
which are delivered for the sole purpose of Seller’s performance under this
Purchase Order, and on the express condition that neither they nor the
information contained therein will be disclosed to others, nor used for any
purpose other than in connection with orders from Purchaser without the prior
express written consent of Purchaser. Such specifications, documents and
articles are to be returned to Purchaser promptly upon its written request. The
obligations under this section shall survive the cancellation, termination or
completion of this Purchase Order.
14. COMPLIANCE WITH LAWS. Seller agrees, in
connection with the production of the goods specified herein and services
performed hereunder, to comply with all applicable local, state and federal
laws and regulations, rulings and executive orders issued pursuant thereto, and
agrees to indemnify Purchaser against any loss, cost liability, or damage by
reason of Seller’s violation of this paragraph. Without limiting the generality
of the foregoing, Seller agrees to comply with the applicable provisions of the
following laws and any regulations, rulings or executive orders issued
thereunder, or any amendments thereof, successors thereto, or other similar
laws or regulations, any and all of which provisions are incorporated herein by
reference. Applicable laws, regulations, rulings and executive orders include,
but are not limited to the following: (a) The Wage Hour Act (40 U.S.C. §
324-326); (b) The Fair Labor Standards Act (29 U.S.C. § 201-219); (c) The
Federal Occupational Safety and Health Act (Pub. L. 91-596); (d)
Non-discrimination in Employment (Executive Order 11246, as amended by
Executive Order 11375, and the rules, regulations, and relevant orders of the
Secretary of Labor); (e) The Vietnam Era Veterans Readjustment Act of 1974
(Pub. L. 93-508 as it amends 38 U.S.C. § 2012); (f) The Rehabilitation Act of
1973, as amended (Pub. L. 93-112); and (g) the Walsh-Healy Public Contracts
Act, as amended (41 U.S.C. § 35-45).
15. REMEDIES. In the event this Purchase Order is
not complied with in any respect, Purchaser may exercise any one or more of the
following remedies: (a) cancel this Purchase Order; (b) require replacement of
the goods; (c) recover all loss, damage and expense (including consequential
damages) resulting from such failure by set-off or otherwise; (d) return excess
of early deliveries to Seller at Seller’s expense; (e) require delivery by any
means and (f) exercise any other available remedy. Seller shall pay or
otherwise be liable for any transportation, labor and/or other expense incurred
in connection with the foregoing, including Purchaser’s attorneys’ fees, costs
and other changes incurred in connection with Purchaser’s exercise of
Purchaser’s remedies. Seller shall indemnify Purchaser and hold it harmless
from any and all claims, loss or liability of any kind, including attorneys’ fees,
costs and other charges for (i) alleged or actual infringement of any
trademark, tradename or copyright or for claims of unfair competition by the
goods or any use thereof by Purchaser, its customers or its users: (ii)
Seller’s negligence in the performance of Seller’s obligations under this
Purchase Order, or (iii) alleged or actual violation by Seller of the goods of
any applicable law (statute or common law) or regulation relating to the
manufacturing, packaging, labeling or sale of the goods including without
limitation, the Fair Labor Standards Act of 1938 and the Federal Occupational
Safety and Health Act of 1970. No term of any document or instrument of Seller
shall be effective against Purchaser that purports to alter seller’s
responsibility for Seller’s negligence, to reduce the period of limitation of
actions brought by Purchaser to require arbitration or to waive Purchaser’s
defenses or rights to set-off against Seller or any assignee of Seller. In
addition to any remedies listed in this Purchase Order, Purchaser shall also
have all remedies available to it under the Uniform Commercial Code as adopted
by the State of
16. INSURANCE. Seller shall maintain such public
liability, property damage and workers’ compensation insurance as may be
necessary to indemnify Purchaser and hold it harmless in accordance with the
requirements of this Purchase Order. Upon Purchaser’s request, Seller agrees to
submit to Purchaser certificates of insurance evidencing such insurance
coverage and naming Purchaser as an additional named insured and shall provide
Purchaser not less than thirty (30) days’ notice of cancellation.
17. PURCHASER'S PROPERTY. All drawings, special
tools, dies, patterns, jigs and fixtures supplied by Purchaser or paid for by
Purchaser shall remain Purchaser’s property. Seller shall at Seller’s expense
maintain all of Purchaser’s property in Seller’s possession in good condition
and repair and keep it adequately insured. Seller will promptly comply with all
disposal and shipping instructions furnished by Purchaser. Until such instructions
are complied with, such drawings, special tools, dies, patterns, jigs and
fixtures shall be used by Seller only for the manufacture or production of
Purchaser’s goods and shall be kept confidential. Purchaser’s supplying
property to Seller for Seller’s use in performance under this purchase Order
shall not limit in any way Seller’s obligation to provide conforming goods.
18. ASSIGNMENT AND SUBCONTRACTING. Seller will not
assign or subcontract (in whole or in part) this Purchase Order or its
obligations under it without Purchaser’s prior written consent.
19. RELATIONSHIP OF THE PARTIES. Seller and
Purchaser are independent contracting parties and nothing in this Purchase
Order shall make either party the agent or legal representative of the other
for any purpose whatsoever, nor does it grant either party any authority to
assume or to create any obligation on behalf of or in the name of the other.
20. FORCE MAJEURE. Purchaser may delay or be
excused from timely performance of its obligations under this Purchase Order if
Purchaser’s failure to perform in a timely manner was caused by an Act of God
or similar causes beyond its control.
21. HAZARD INFORMATION. Seller will provide
Purchaser with three (3) copies of appropriate MATERIAL SAFETY DATA SHEETS
(MSDS) with Seller’s initial shipment to Purchaser, and with the first shipment
after an MSDS that is updated for any reason, including a change in processes
or material of the article. If the goods subject to this Purchase Order do not
require an MSDS, Seller shall provide Purchaser with a statement to that
effect.
22. TOXIC SUBSTANCES. Seller warrants that each and
every chemical substance transferred to Purchaser in connection with this
Purchase Order is at the time of such transfer on the lists of chemical
substances compiled and published by the administrator of the Environmental
Protection Agency pursuant to the Toxic Substance Control Act and the
regulations promulgated under it. If the status of any such substance on such
lists is changed in any respect, Seller shall immediately notify Purchaser of
such change in writing.
23. COMPLIANCE CERTIFICATION IF NEEDED. In
accepting this Purchase Order, Seller hereby certifies that Seller is in
compliance with all applicable laws, statutes, ordinances, governmental
administrative orders, rules and regulations. In the event Seller claims an
exemption from any matters referred to above, upon Purchaser’s request Seller
shall provide Purchaser with a signed statement containing the factual basis
for such exemption.
24. GOVERNING LAW; AMENDMENT OR MODIFICATION; WAIVER. This
Purchase Order and the contract arising from it shall be governed by the laws
of the State of