Acceptance of Contract
Buyer shall not be bound by this order until Seller executes and returns to the Buyer the acknowledgement copy of the order. Seller shall be bound by this order and its terms and conditions when it executes and returns the acknowledgement or when it delivers to Buyer any of the items ordered or renders for Buyer any of the services ordered herein. Upon acceptance of this order in either form, Seller agrees that the terms contained herein constitute the entire agreement, and any terms printed or otherwise contained in its acceptance or quotation which are inconsistent with or in addition to the terms contained herein shall be void and of no effect.
No agreement or understanding to modify this contract shall be binding upon the Buyer unless in writing and signed by Buyer’s authorized agent. All specifications, drawings, and data submitted to Seller with this order are hereby incorporated herein and made a part hereof.
The Buyer reserves the right at any time to make changes in any one or more of the following: (a) specifications, drawings and data incorporated in this contract where the items to be furnished are to be specially manufactured for the Buyer, (b) methods of shipment or packing, (c) place of delivery, and (d) time of delivery. If any such change causes an increase or decrease in the cost of or the time required for performance of this contract, an equitable adjustment shall be made in the contract price or delivery schedule, or both. Any claim by Seller for adjustment under this clause shall be deemed waived unless asserted in writing within (30) days from receipt by Seller of the change. Price increases or extensions of time for delivery shall not be binding on Buyer unless evidenced by a Purchaser Order Change Notice issued and signed by buyer.
Time is of the essence in this contract, and if delivery of items or rendering of services is not completed by the time promised, the Buyer reserves the right without liability, in addition to its other rights and remedies, to terminate this contract by notice, effective when received by Seller, as to stated items not yet shipped or services not yet rendered, and to purchase substitute items or services elsewhere and charge the Seller with any loss, damage or expense incurred. Any provisions herein for delivery of articles or the rendering of services by installments shall not be construed as making the obligations of seller severable. Risk of loss and title shall pass to Buyer and delivery shall be deemed to be complete only upon actual receipt and acceptance by Buyer. SI Systems LLC FOB terms are FOB destination on all materials purchased by SI Systems.
Supplier (Seller) is responsible for inspection of goods per SI Systems, Inc. specification. Compliance may be accomplished by supplying individual inspection records or a SI-approved blanket inspection certificate of conformance. Buyer reserves the right to reject and refuse acceptance of items which are not in accordance with instructions, specifications, drawings and data of Seller’s warranty (express or implied). Buyer will charge Seller for the cost of inspecting merchandise rejected. Items not accepted will be returned to Seller at Seller’s expense. Payment for any article hereunder shall not be deemed an acceptance thereof.
By accepting this order, Seller hereby warrants that the items and services to be furnished hereunder will be in full conformity with Buyer’s specifications, drawings and data or Seller’s samples provided that Buyer’s approval of samples shall not be a waiver of Seller’s warranty that the goods will be in accordance with Buyer’s specifications, drawings and data and that items furnished hereunder will be free from defects in workmanship and materials and fit for the use intended by Buyer and will be conveyed with good title and free of any liens or other encumbrances whatsoever. Seller agrees that this warranty shall survive acceptance of the items. Said warranties shall be in addition to any warranties of additional scope given to Buyer by Seller. Seller agrees to indemnify Buyer against any loss, damage, or expense whatsoever that Buyer may suffer arising out of or related to this order or from breach of this warranty or any other provision hereunder, including the reasonable cost incurred by the Buyer for reworking defective materials to conform to the specifications, drawings or samples or on account of personal injury or death or damage to personal property.
Limit of Liability
In no event shall Buyer be liable to Seller or any third party for an indirect, special, or consequential damages, whether under contract, tort, strict liability or based on any other theory of law.
Specifications and Property Furnished to Seller by Buyer
Goods made in accordance with Buyer’s specifications and drawings shall not be furnished or quoted to any other person or concern. All specifications, drawings, data, tools, jigs, dies, fixtures, materials and other items furnished by Buyer for the cost of which is charged against this order shall be confidential and shall be and remain the property of the Buyer and subject to removal upon Buyer’s instruction. The Seller shall mark all such items with the name “SI” and the corresponding drawing number and shall be responsible for the safe keeping of such items when in its custody. All material and equipment furnished by SI shall be held at the Seller’s risk and shall be protected against loss or damages by insurance acceptable to Buyer.
Seller undertakes and agrees to defend at Seller’s own expense, all suits, actions, or proceedings in which Buyer, or any of Buyer’s distributors or dealers, or the users of any of the Buyer’s products are made defendants for actual or alleged infringement of any U.S. or foreign letters, patent, trademark or copyright resulting from the use or sale of the items purchased hereunder (except infringement necessarily resulting from adherence to specifications or drawings, other than those of Seller’s design or selection, originally submitted to Seller by Buyer) and further agrees to pay and discharge any and all judgements or decrees which may be rendered in any of such suit action or proceedings against such defendants therein.
Buyer shall not be billed at prices higher than stated on this Purchase Order unless authorized by a Purchase Order Change Notice issued and signed by Buyer. Seller represents that the price charged for the items or services covered by this order are the lowest prices charged by the Seller to buyers of a class similar to Buyer under conditions similar to those specified in this order and that prices comply with applicable government regulations in effect at time of quotation, sale or delivery. Seller agrees that any price reduction made to merchandise covered by this order subsequent to the placement of this order will be applicable to this order. No charges will be allowed for packing, crating, freight expense or cartage unless agreed to and specified on this order.
It is understood that the cash discount period will commence on date of receipt of invoice, invoices incorrectly incompletely executed will be returned for correction or completion, and discount period shall not commence until invoice is received properly executed. If at the time of receipt of Seller’s invoice the merchandise has not been received at destination and Buyer elects to make payment in advance of the receipt of such merchandise, it is expressly agreed by you that such pre-payment shall not constitute a waiver of any rights or claims which Buyer may have arising out of or connected with the inspection of the merchandise after receipt.
Buyer may, at any time, terminate this order in whole or in part by written, telegraphic, electronic notice, or verbal notice confirmed in writing. The Buyer shall have the right to terminate this contract for convenience in whole, or, from time to time, in part, in such event, and provided the items ordered are not standard commercial items. The Buyer’s sole and maximum liability shall be limited to payment (1) for completed and delivered items at contract price and (2) of costs directly attributable to and incurred by Seller for the performance of the work terminated, less prior payments, if any, plus a profit thereon not to exceed 6 percent. The buyer shall have the right to delivery of item partially fabricated and to all unused material and inventory acquired and included in Seller’s claim, or to credit for the agreed value thereof. If the items ordered are standard commercial items, the Buyer shall have the right to terminate this contract for convenience, in whole, or from time to time, in part without obligation or liability whatsoever, except for payment of items delivered prior to such termination. If however, termination is occasioned by Seller’s breach of any condition hereon, including breach warranty, or by Seller’s delay, except delay due to considerations beyond the Seller’s control and without Seller fault or negligence, Seller shall not be entitled to any claim of cost or to any profit referred to in said clause, and Buyer shall have against Seller all remedies provided by law and equity.
No assignment of this order by Seller of or Seller’s obligations hereunder shall be made in whole or in part without Buyer’s written consent. Any assignment of moneys due or payable hereunder shall be subject to set-off recoupment or other claim of Buyer against Seller. Buyer may, without liability, terminate in writing the order if Seller becomes insolvent, is adjudged bankrupt or makes an assignment for the benefit of creditors.
Compliance with Laws
In accepting this order, Seller represents that it has and will continue during the performance of this order to comply with all applicable federal, state and local laws and regulations. By acceptance hereof, Seller certifies compliance with the “Fair Labor Standards Act” of 1938, as amended in the performance of this order.
None of the work contemplated as being performed by Seller under this order shall be subcontracted without the prior written consent of the Buyer.
Nondiscrimination in Employment
The Seller will not discriminate against any employee or applicant for employment because of race, creed, color, age, sex, religion, disability, veteran’s status or national origin. The Seller will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, ego, sex, religion, disability, veteran’s status or national origin. 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 or training, including apprenticeship.
The terms and conditions hereof shall be governed and construed in accordance with the laws of the Commonwealth of Pennsylvania without regard to principles of choice or conflicts of laws of any jurisdiction.
If Seller’s employees, subcontractors or others under Seller’s control perform services hereunder on Buyer’s premises or at premises of others, Seller shall maintain and shall require subcontractors, if any, to maintain the following kinds of Insurance with minimum limits as set forth below:
(a) Worker’s Compensation……………………………………………………………………………………………...Statutory
(b) Employer’s Liability……………………………………………………………………………………………………$1,000,000 Employer’s Liability Limit per Occurrence
(c) Contractor’s Comprehensive General Liability……………………………………………………………………..$1,000,000 per Occurrence
(d) Automobile Public Liability……………………………………………………………………………………………$1,000,000 per Occurrence
Seller grants to Buyer a non-exclusive royalty free perpetual license to use any standard software provided Seller hereunder and to sublicense the same. Buyer shall not be bound by any terms and conditions that may accompany any software. Seller grants to Buyer an unlimited, exclusive royalty free perpetual license to use, modify and sublicense any custom software provided by Seller to Buyer.
Seller warrants that it is in material compliance with U.S. laws and regulations governing the export and import of goods and technology. Both parties agree that technology or technical data subject to this order will not be exported or disclosed to any foreign national, firm or country, including foreign nationals employed by or associated with either party, without first complying with all applicable export control regulations of the United States, including the International Traffic in Arms Regulation (ITAR) and the Export Administration Regulation (EAR). Seller will inform Buyer in writing of the Export Control Classification Number (ECCN) and/or the United States Munitions List Category (if any) of any goods or technology.
Seller warrants that goods, materials, equipment and services furnished on this order will conform to the Williams-Setiger
Occupation Safety and Health Act of 1970 and amendments.