HOWE MACHINE’S TERMS & CONDITIONS

AUGUST 22, 2005

 

THIS PURCHASE ORDER IS NEITHER AN EXPRESSION OF ACCEPTANCE OF AN OFFER MADE TO BUYER BY NOR A CONFIRMATION OF ANY CONTRACT OR AGREEMENT BETWEEN BUYER AND SELLER.  THIS PURCHASE ORDER IS AN OFFER TO THE SELLER TO CONTRACT ON THE TERMS SET FORTH HEREIN, AND SUCH OFFER EXPRESSLY LIMITS ACCEPTANCE BY SELLER TO THE TERMS SET FORTH HEREIN AND ANY ADDITIONAL OR DIFFERENT TERMS PROPOSED BY SELLER ARE SPECIFICALLY REJECTED, UNLESS EXPRESSLY AGREED TO IN WRITING, SIGNED BY A REPRESENTATIVE OF THE BUYER’S PURCHASING DEPARTMENT.

 

I. GENERAL

 

A.  ACCEPTANCE OF OFFER.  Seller may accept his offer (i) by forwarding written acknowledgment of acceptance to Buyer. The first to occur of (i) or (ii) shall constitute Seller's acceptance. If Seller accepts this offer by commencing performance, Seller shall thereupon be bound hereby, but Buyer shall not be bound until it receives (i) written notice of Seller's commencement of performance or (ii) the goods ordered hereunder (the "Goods"), whichever shall sooner occur. If Seller accepts this offer by forwarding an acknowledgement of acceptance, Seller shall thereupon be bound hereby, and Buyer shall be bound upon receipt of such acknowledgement.

 

B.  ALTERATION OF TERMS.   The terms of this Purchase Order may not be modified, superseded or amended except in a writing signed by a representative of Buyer's Purchasing Department ("Buyer's Agent"). Each shipment received by Buyer shall only be upon the terms of this Purchase Order, notwithstanding any terms contained in any quotation, acknowledgment, invoice', or other form of Seller, or Buyer’s act of accepting or paying for any shipment or any other data.

 

C.  SHIPMENT & DELIVERY (a) Time is of the essence of this order. If delivery of the goods is not completed by the time indicated herein, or Seller becomes insolvent or makes a general assignment for the benefit of creditors, or a petition in bankruptcy is filed by or against Seller. Buyer reserves the right without liability in addition to its other rights and remedies hereunder and at law and equity to cancel this order by written or telegraphic notice or verbal notice confirmed in writing (which notice shall be effective when received by or communicated to Seller) as to any of the Goods not shipped, to purchase substitute goods elsewhere, and to charge Seller with any loss incurred. Provisions for delivery of the Goods by installments shall not be construed as making the obligations of Seller severable (b) Shipments shall be suitably packed to prevent damage, and shipped only by licensed carrier and the least expensive route, until otherwise instructed. Shipments F.O.B. Seller's plant shall be released at a declared valuation of' the true replacement value, but in no event shall such declared valuation exceed the maximum permitted under the carrier's least expensive rate schedule applicable to Goods constituting such shipment. Correspondence must show Buyer's Purchase Order Number.  Packing lists must bear a complete description of Goods shipped.

 

D.  PRICE AND PAYMENT. (a) Buyer shall not be billed at or charged prices higher than stated on this Purchase Order without the prior written consent of Buyer's Agent. The prices stated in this Purchase Order include packing, crating and transportation F.O.B. point shown. Seller agrees that any price reduction made on the Goods subsequent to the placement of this order and prior to delivery of all the Goods will be applicable to this order. (b) The cash discount period will date form the receipt of Buyer of the Goods or from the date of the invoice, whichever is later. Shipments sent C.O.D. will not be accepted and drafts will not be honored, without the prior written consent of Buyer's Agent, and all Goods attendant therewith will be at Seller’s risk.

 

 

E.  ADDITIONAL CHARGES.  Except for taws pursuant to Section 17, no charges not shown on the face of this Purchase Order will be allowed without the prior written consent of Buyer’s Agent.

 

               F.  TERMINATION.  Buyer may, at any time, terminate this order for its convenience, in whole or in part, by written or telegraphic notice or verbal notice confirmed in writing, which notice shall be effective when received by or communicated to Seller.  If so terminated, any claim of Seller shall be settled on the basis of and limited to the reasonable costs Seller has incurred as of the time of receipt of Seller's notice in the performance of this order.

 

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G.   PATENTS, TRADE SECRETS AND CONFIDENTIAL INFORMATION. Seller warrants the Goods do not infringe, or constitute an unauthorized use of any (i) United States or foreign letters patent (ii) trade secrets, or (iii) confidential information, and Seller agrees to defend, at Seller's expense, all claims, suits, actions, or proceedings, in law or equity, against Buyer, its successors, assigns, customers and users of any of the Goods, or any of them, for actual or alleged infringement.  This clause does not apply when Howe is ordering goods and/or services in accordance with its own designs and B/P specifications.

 

H. QUALITY. Seller warrants that all of the Goods, material and work covered hereunder will conform to the specifications, drawings, samples, data or other description furnished to or by, or adopted by, the Buyer, and that the Goods will be of good material and workmanship, free from defects, merchantable and fit and sufficient for the purpose(s) intended. Whenever quality system ratings are required, at a minimum, quality standards MIL-I-45208 and MIL-STD-45662 will apply,

 

I.  DEFECTIVE GOODS. If any of the Goods fail to comply with any of the terms of this Purchase Order, Seller shall promptly correct such discrepancy or replace such Goods at Seller's expense upon written or telegraphic notice or verbal notice confirmed in writing, of such discrepancy from Buyer, (which notice shall be effective when received by or communicated to Seller). If Seller shall fail to so act within 5 days of such notice, Buyer may cancel this order as to all such Goods by giving Seller notice in the manner described above, and in addition to its rights and remedies hereunder and at law and equity, Buyer may at its option, cancel the then remaining balance of this order by the same notice procedure, and as to all or any part of the Goods, purchase substitute goods elsewhere and charge Seller with any loss incurred. After notice to Seller of a discrepancy, all such Goods will be held at Seller's risk until the discrepancy is corrected or such Goods are returned to Seller. Buyer may, and at Seller's direction shall, return such Goods to Seller at Seller's risk, and all transportation charges, both to and from the original destination, shall be paid by Seller. Any payment for such Goods shall be refunded by Seller unless Seller promptly corrects the discrepancy or replaces the Goods at Seller's expense.

 

J.  EXCESS GOODS. Except for customary quantity variations recognized by trade practice, Goods in excess of those ordered will not be accepted, and such Goods will be received, held and returned to Seller by Buyer at Seller's risk and expense.

 

K. INSPECTION AND ACCEPTANCE. The Goods are subject to inspection, testing and approval both at Seller's plant and at the Buyer's point of destination, or either of those points, at the time and in the manner recognized by industry trade practices. Buyer reserves the right to reject and refuse acceptance of such of the Goods which do not comply with all terms of this Purchase Order. Acceptance, payment, use or resale of the Goods by Buyer shall not relieve Seller from any of its obligations, representations, and warranties hereunder or pursuant hereto. Payment for any of the Goods shall not be deemed an acceptance thereof

 

L. FABRICATION AND MATERIAL COMMITMENT. Without the prior written consent of Buyer's Agent, Seller shall not make commitments for materials nor fabricate in advance of the time necessary to meet delivery dates specified herein.

 

M. APPLICABLE LAWS. Seller, in the performance and pricing of this order, shall comply with the provisions of all applicable Federal, state and local laws,  regulations, rules and ordinances, including, without limitation, the Fair Labor Standards Act of 1938, as amended, and the occupational Safety and Health Act of 1970, as amended, and agrees, upon request, to furnish Buyer a certificate to such effect All laws and regulations required in agreements of this character are hereby incorporated by this reference including provisions of executive orders 10925, 11141, 11246. 11375 and 11598 as amended and any subsequent executive orders relating to equal opportunity for employment on government contracts and all rules and regulations of the president's committee on equal employment opportunity.

 

N. PROPERTY FURNISHED TO SELLER BY BUYER. Unless otherwise agreed in writing, all drawings, specifications, tools, dies, molds, jigs, patterns, machinery,  fixtures,  equipment and any other property furnished to the Seller by the Buyer, or specifically paid for by the Buyer, for use in the performance of this order, shall be and remain the property of the Buyer, subject to removal upon the Buyer's instruction. used only in filling orders from the Buyer, held at the Seller's risk, and kept insured by the Seller while in hits custody or control or in an amount equal to the replacement cost thereof with loss payable to the Buyer.  DFARS 252.225-7014 Clause is invoked for the procurement of materials used to supply the customer per contract requirements.