The only terms and conditions that apply to this order, regardless of any terms and conditions printed on forms or contained in correspondence between Seller and Buyer pertaining to this order are as set forth below and shall be interpreted in accordance with the laws of the State of Colorado.
GOODS: The Seller shall sell to the Buyer the products and goods identified herein, which shall be of the grade, quality and specifications set forth in currently published Supreme Cable specifications, unless modified by an attachment.
MODIFICATION: This order contains all the terms, conditions and provisions of this transaction and no agreement or other understanding in any way modifying the conditions hereof will be binding upon Seller unless made in writing and executed by Seller. Reference to Buyer’s bids or proposals, if noted on this order, shall not affect the terms and conditions hereof. No term or condition at variance with this order proposed by Buyer in acknowledging or accepting this order will be binding on Seller unless accepted in writing and executed by Seller. No waiver of any of the provisions contained in this order shall be valid unless made in writing and executed by the waiving party. Failure by Seller to insist upon strict performance shall not constitute a waiver of any of the provisions of this order or a waiver of any default.
CONFLICT IN TERMS AND CONDITIONS: In the event of a conflict between these printed terms and conditions of this order and any typewritten terms and conditions which may appear in the face hereon, the latter shall prevail. Agreement by the Seller to enter into any contractual agreement with the Buyer and to supply the requested material and services is expressly conditioned upon the acceptance by the Buyer of the exact terms and conditions specified herein and on the face of this Sales Order/Pick List or invoice, and any attempt to alter or omit any of such terms shall be deemed a rejection and a counteroffer. Acceptance of the goods and materials specified herein shall be deemed as acceptance by the Buyer of the terms and conditions specified herein.
SUPPLEMENTARY TECHNICAL INFORMATION: All technical specifications, drawings, notes, instructions or information referred to on the face of this order shall be deemed to be incorporated by reference as if fully set forth.
CONDITIONS: All orders or contracts are accepted with the understanding that they are subject to Seller’s ability to obtain the necessary raw or manufactured materials, and all orders or contracts as well as shipments applicable thereto are subject to Seller’s current manufacturing schedules, and government regulations, orders, directives, and restrictions that may be in effect from time to time.
DELAYS: Seller will not be liable for any delay in the performance of orders or contracts or in the delivery or shipment of goods, or for any damages suffered by Buyer by reason of such delay, if such delay is directly or indirectly, caused by, or in any manner arises from fires, floods, accidents, civil unrest, act of God, war, governmental interference or embargos, strikes, labor difficulties, shortage of labor, fuel, power, materials, or supplies, transportation delays, or any other cause or causes (whether or not similar in nature to any of these hereinbefore specified) beyond its control.
DELIVERY: The goods described herein shall be delivered FOB Denver, Colorado. Identification of the goods shall occur when they are placed in the hands of the carrier. The goods shall be placed in suitably protected containers, the nature of which shall be determined by the Seller. All risks of loss shall be borne by the Buyer from the time the goods are placed in the hands of the carrier.
PAYMENT TERMS: Terms of payment are net 30 days for each shipment invoiced, unless otherwise expressly provided for and confirmed in writing by the Seller. Notwithstanding any specified payment terms, the Seller may require payment in advance of making any shipment if the Buyer’s credit shall at any time, in the sole judgment of the Seller, become impaired. The contract price shall become immediately due and payable and the Seller may cancel the unperformed portion of the contract upon the Buyer’s failure to make any payment when due. Overdue payments shall be subject to finance charges computed at a periodic rate (to the extent allowed by law) of 1½ % per month (18% per year). The Seller reserves the right to require, at its sole option, a security interest in the goods sold and proceeds thereof to ensure full payment. The Buyer shall provide in a timely manner all documents reasonably required by the Seller to perfect and enforce its security interest.
WARRANTY: Seller warrants that the Seller has inspected 100% of the goods being supplied and warrants their quality and workmanship for a period of 12 months from shipping date. The warranty provided herein is limited to the extent that in the event of defect in the quality or workmanship of the goods provided herein, the Seller shall, upon verification of defect by Seller, at its option replace any such defective goods or return to the Buyer its cost for such defective goods. Under no circumstances shall Seller be responsible for any consequential or other damages, losses, or expenses that may occur to anyone due to any defect in the goods herein. Seller expressly disclaims any warranty, implied or otherwise, other than as specified herein and specifically disclaims any implied warranties of merchantability or fitness for any purpose.
ASSIGNMENTS: The Buyer shall not assign this order, or any interest therein, without the written consent of Seller.
QUOTATIONS AND PRICES: Prices are subject to change without notice, and orders calling for future delivery will be billed according to the price in effect at the time of delivery. Written quotations automatically expire 60 calendar days from the date issued and are subject to termination by notice within that period.
SELLER’S RIGHT OF POSSESSION: Seller shall have the right, in addition to all others it may possess, at any time, for credit reasons or because of Buyer’s default or defaults, to withhold shipments, in whole or in part, and to recall goods in transit, retake same, and repossess all goods which may be stored with Seller for Buyer’s account, without the necessity of taking any other proceedings, and Buyer consents that all the merchandise so recalled, retaken, or repossessed shall become Seller’s absolute property, provided that Buyer is given full credit therefore. The foregoing shall not be construed as limiting, in any manner, any of the rights or remedies available to Seller because of any default of Buyer under the Uniform Commercial Code as in force and effect in the State of Colorado on the date of the signing of this Agreement.
BANKRUPTCY: Seller shall have the option to cancel any and all orders placed by Buyer regardless of the status of such order by written notice, including fax transmissions, if the Buyer shall become insolvent or makes a general assignment for the benefit of creditors, or if a petition in bankruptcy is filed by or against the Buyer.
SPECIAL ORDERS: The Buyer acknowledges that if this purchase is a special order, the provisions of this paragraph supersede any conflicting general terms of this Agreement. The Buyer agrees to defend, protect, and hold harmless the Seller against all suits at law or in equity and from any and all damages, claims, and demands for personal injury or actual or alleged infringement of any United States or foreign patent and to defend any suit or actions which may be brought against the Seller for such injury and/or any alleged infringement because of the manufacture and/or sale of the material covered thereby. All special ordered goods are subject to a cancellation fee of 100% of the purchase price regardless of when cancelled. Goods are described in the contract at the time that their manufacture or assembly commences. Risk of loss passes to the Buyer at the time the goods are placed in the hands of a carrier.
TAXES: Prices on the specified products are exclusive of all city, state, and federal excise taxes, including, without limitation, taxes on manufacture, sales, receipts, gross income, occupation, use and similar taxes. Wherever applicable, any tax or taxes will be added to the invoice as a separate charge to be paid by the Buyer.
INSURANCE: Seller has no duty to procure insurance for the account of the Buyer. In no case does the purchase price, even if inclusive of freight, cover the cost of any insurance; however, if the route selected involves movement of the goods by common carrier for which the freight rate does not include insurance, the Seller may at its option procure insurance for the account of the Buyer, and the Buyer shall repay to the Seller the cost of such insurance.
CANCELLATION: Orders cancelled within 30 days prior to the scheduled ship date are subject to a 100% cancellation charge. Orders cancelled by the Buyer in excess of 30 days prior to the ship date are subject to out-of-pocket expenses, such as restocking charges, cost of labor, and cost of materials.
APPLICABLE LAW, VENUE, ATTORNEY FEES: This Agreement shall be governed by Colorado law. The exclusive venue for any litigation concerning this matter shall be in the Adams County District Court in Brighton, Colorado. The Buyer agrees to pay the Seller’s reasonable attorney’s fees and costs required to enforce the Seller’s rights hereunder.
PROPRIETARY INFORMATION: It is understood that the Seller may provide proprietary information to the Buyer in the performance of this contract. The Buyer acknowledges that such information shall remain the exclusive property of the Seller. The Buyer agrees to preserve and protect such information and to take all other acts reasonably requested by the Seller with respect to it. Upon the earlier of the completion of this contract or the request of the Seller, the Buyer agrees to return to the Seller all documents containing proprietary information and to retain no copies thereof. The Buyer agrees that its obligation to protect the Seller’s proprietary information shall be ongoing and shall not cease upon completion or termination of this contract.
TECHNICAL ADVICE: Advice of the technical staff of the Seller is available to the Buyer, but the Seller, not controlling or supervising the subsequent manufacture, fabrication, or installation of its products or their use after sale, does not warrant or guarantee such advice.
SELLER’S AGENTS: The Buyer acknowledges that it has been advised that no agent, employee, or representative of the Seller has any authority to bind the Seller to any affirmation, promise, representation, or warranty concerning any of the goods and, unless such affirmation, promise, representation, or warranty is specifically set forth in this Agreement, it does not form a basis of this bargain and shall not be enforceable against the Seller.
RETURN POLICY: The Buyer is responsible for the cost of freight on all goods returned to the Seller. The Seller will pay freight on goods returned to the Buyer which are covered by warranty.
INSPECTION: The Buyer shall inspect the goods not later than the time permitted by the carrier for inspection and assertion of claims which may be related to shipping and handling. The failure of the Buyer to report any damage or claims within 5 days of the Buyer’s receipt shall constitute the Buyer’s admission of receipt of the goods in an undamaged condition and that such goods are in full conformity with the contract.
COMPLETE AGREEMENT: This contract is intended as the complete and final agreement of the parties and an exclusive statement of its terms. Seller makes no representations or warranties concerning this contract or the goods except as are expressly contained herein. This contract may not be changed, altered, or modified except in writing signed by the party against whom enforcement is sought.
Purchasing Terms for Suppliers
The only terms and conditions that apply to this order, regardless of any terms and conditions printed on forms or contained in correspondence between Buyer and Seller pertaining to this order, are as set forth below and shall be interpreted in accordance with the laws of the State of Colorado.
Modification: This order contains all the terms, conditions and provisions of this transaction and no agreement or other understanding in any way modifying the conditions hereof will be binding upon Buyer unless made in writing and executed by Buyer. Reference to Seller’s bids or proposals, if noted on this order, shall not affect the terms and conditions hereof. No term of condition at variance with this order proposed by Seller in acknowledging or accepting this order will be binding on Buyer unless accepted in writing and executed by Buyer. No waiver or any of the provisions contained in this order shall be valid unless made in writing and executed by the waiving party. Failure by Buyer to insist upon strict performance shall not constitute a waiver of any of the provisions of this order or a waiver of any default.
Conflict in Terms and Conditions: In the event of a conflict between these printed terms and conditions of this order and any typewritten terms and conditions which may appear in the face hereon, the latter shall prevail.
Supplementary Technical Information: All technical specifications, drawings, notes, instructions or information referred to on the face of this order shall be deemed to be incorporated by reference as if fully set forth.
Changes, Additions and Deletions: Buyer shall have the right, by written notice, to unilaterally make changes within this agreement as to packing, packaging, testing specifications, designs, delivery schedules or any other phase of the work to be performed by the Seller hereunder. If such changes cause an increase or decrease in the amount due under this order or in the time required for its performance, an equitable adjustment shall be made, provided however, that any claim by the Seller therefore must be asserted in writing fifteen days from the date of the notice of the change, and said claim is approved and authorized by Buyer in writing. Seller shall not substitute other materials or accessories or revise specifications for those specified in this order without written consent of Buyer. Changes made by Seller without an authorized change notice shall be made at the sole risk of Seller, there being no financial recourse against Buyer.
Responsibility for Property: Seller will assume the risk and shall be responsible for any loss or damage to any items (including materials, parts, tools, designs, sketches, drawings, blueprints, patterns, dies, molds, models, plates, cuts, and special appliances) belonging to Buyer and/or delivered to, manufactured or acquired by Seller for Buyer’s account. Any of such items shall be recorded and identified as property of Buyer and retained by Seller subject to examination by Buyer. They shall be maintained in good condition at Seller’s expense and kept insured by Seller with loss payable to Buyer. Such items shall be used exclusively in the production for Buyer of articles required by this order, and shall not be used for production of larger quantities than those specified herein, or in the production, manufacture or design of any article for any other person, without the prior written consent of the Buyer. Such items shall be subject to disposition by Buyer at any and all times; and, upon demand, shall be returned to Buyer including any unused materials furnished by Buyer and spoiled or defective materials or products, unless Buyer shall otherwise direct. In any event, Seller shall return such property to Buyer in the condition in which it was received except for reasonable wear and tear, and except to the extent such property has been incorporated in items delivered under this order, or has been consumed in normal performance of work under this order. Nothing herein shall be construed as imposing any obligation on Buyer to furnish any such items. If the Seller’s work under this order involves operations by the Seller on the premise of the Buyer or any of its customers or any place where Buyer conducts operations, or with material or equipment furnished to Seller by Buyer for execution of this order, the Seller shall take all necessary precautions to prevent the occurrence of any injury to person or property during the progress of such work and except to the extent that such injury is due solely and directly to Buyer’s negligence, the Seller shall indemnify Buyer against all loss which may result in any way from any act or omission of the Seller, its employees, servants, agents, or subcontractors, and the Seller shall maintain such Public Liability, Personal Injury and Property Damage, and Employer’s Liability and Compensation Insurance as will protect Buyer from said risks and from any claims under any applicable Workmen’s Compensation and Occupational Safety and Health Act.
Shipping Instructions: Seller will comply with Buyer’s routing and shipping instructions on face of order. If such printed instructions are not clear or not attached hereto. Seller will contact Buyer’s Purchasing Department for instructions.
Packaging and Packing: Seller shall be responsible for safe packaging and packing, which must conform to the requirements of Carrier’s Tariffs. Seller shall separately number all cases, packages, etc., showing the corresponding numbers on the invoices. An itemized packing slip, bearing Buyer’s order number, must be placed in each container. No charge shall be made for packaging, packaging materials, crating or storage, unless stated on the face of this order.
Delivery: Time and rate of deliveries are of the essence of this order. Upon default by the Seller in time, rate or manner of delivery, Buyer reserves the right to cancel this order and purchase elsewhere, holding the Seller accountable for any loss caused thereby. Buyer also reserves the right to accept late delivery and deduct 5% from the price of the order tor each week that delivery is late, up to a maximum of 20% of the order price. Buyer also reserves the right to refuse shipments made in advance of the schedule of deliveries appearing on the face hereof. Delivery shall not be deemed complete until the goods are received and subsequently accepted by Buyer, notwithstanding any agreement to pay freight or other transportation charges. The risk of loss or damage in the course of delivery shall be upon the Seller unless otherwise provided herein. The rights and remedies of Buyer provided in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law or by this order. Whenever any delay (or any threatened delay) in delivery is foreseeable, the Seller shall immediately notify Buyer of such delay but no such notice shall affect the rights of the Buyer hereunder.
Terms of Payment: Invoices must be submitted to Buyer for payment upon shipment of material against this order. Invoices are due sixty days from the date of acceptance of material by Buyer. Cash discounts, if any. will be according to those indicated on the face of this order.
Invoices: Within twenty-four hours after shipment of materials, the Seller shall mail to Buyer two copies of packing slip, and a Bill of Lading, Express Receipt or Parcel Post Receipt, together with a separate invoice for each order, in triplicate all bearing the Buyer’s order number.
Warranty: Seller warrants all articles, materials, work and services furnished hereunder will be free from defects in materials, workmanship and fabrication, wilt conform to applicable specifications, drawings, samples, and/or descriptions; and will be suitable for the purpose for which intended, and if of Seller’s design will be free from design defects. These warranties shall survive any inspection, delivery, acceptance, and payment, shall run to Buyer, its successors, assigns, customers, and users of its products; and shall not be deemed to be exclusive.
Inspection: All articles are subject to inspection and test at place of manufacture or at destination or at both places by Buyer’s representatives. Failure by Buyer to inspect and accept or reject supplies shall not relieve the Seller from responsibility for supplies not in accord with contract requirements. Inspection and acceptance will be according to any accompanying specifications noted on the face of this order. Acceptance will be contingent upon acceptance criteria including in said specifications.
Rejections: Buyer reserves the right to reject and receive full credit for any articles or services which are defective as to material, workmanship, quality, or otherwise, or which are not in conformity with the specifications, drawings, or the sample approved by Buyer. Without extra cost to Buyer, Seller will immediately upon request of Buyer, replace all rejected material, including material damaged because of unsatisfactory packing or packaging by Seller. Rejected articles shall not be submitted for acceptance without concurrent notice of their prior rejection. Seller will be notified of defective material or material not in accordance with specifications of Buyer and such material will be returned (to the vendor COLLECT. Seller may advise Buyer of any preferred routing for return of rejected material and whether or not the shipment should be protected by insurance or full declaration of value at the time of acceptance of this order. In the absence of such information from the Seller regarding such shipments, Buyer reserves the right to declare full valuation or insurance (whichever applicable) for the benefit of and at the expense of the Seller.
Replacement Parts: Seller guarantees to supply replacement parts for any standard products at then current prices for a period of at least five years from the date of shipment.
Pricing: Prices indicated on the face of this order are firm. Any changes in pricing resulting from specification changes initiated by Buyer must be authorized in writing by Buyer.
Audit of Records: The Seller shall maintain adequate records pertaining to the costs of performing this order, in such detail as will accurately reflect all net costs, direct and indirect, of labor, materials, equipment, supplies and services for which payment is to be made hereunder. Such records shall be subject to audit by Buyer in the event of cancellation or with respect to any order for which the price is based on time and materials. In the absence of such records, Buyer shall be under no obligation to pay cancellation charges to which the Seller might otherwise be entitled.
Assignments: The Seller shall not assign this order, or any interest therein, without the written consent of Buyer.
Default-Cancellation-Bankruptcy: (a) Buyer may cancel this order in whole or in part at any time by written or telegraphic notice, whenever the Seller shall default in performance or shall fail to make progress so as to endanger performance and provided Seller shall not remedy such default within five days after written notice by Buyer. After receipt of notice of termination for such default, the Seller shall transfer title and deliver to Buyer satisfactorily completed work and/or such work in process as may be directed by Buyer. In the event Buyer terminates this order in whole or in part as provided herein, it may procure in such manner as it may deem appropriate the required supplies or services and the Seller shall be liable to Buyer for any excess costs. However, the Seller shall not be liable for any excess costs if the failure to perform arises out of causes beyond the control and without the fault or negligence of the Seller, and its subcontractor, if the failure to perform is caused by the default of the subcontractor, unless the articles to be furnished by the subcontractor were obtainable from other sources in sufficient time to comply with the order.
(b) Buyer may cancel this order by written or telegraphic notice if the Seller shall become insolvent or make a general assignment for the benefit of creditors, or if a petition under Chapters X or XI of the Bankruptcy Act is filed by or against the Seller.
Set-Off: Buyer shall have the right at any time to set-off any amount owing from Seller to Buyer (or any of its associated or affiliated companies) against any amount due and owing to Seller (or any of its associated or affiliated companies including agents and representatives) with respect to this order or any subsequent order.
Patents: The Seller shall hold and save the Buyer, its officers, agents, employees and customers, harmless from liability and indemnified against loss or expense of any nature or kind for or on account of the use, sales or lease of any patented or unpatented design, invention, article or appliance furnished or used hereunder whether or not incorporated into other products manufactured by Buyer.
Confidential Information and Advertising: Without the prior consent of the Buyer, the Seller shall neither disclose to any person outside of its employ, nor use for purposes other than performance of this order, any information pertaining to the Buyer or the Buyer’s affairs (including all drawings, blueprints, descriptions, specifications and the contents of this order) and upon termination of this order wilt return to Buyer all such items which embody any of such information. Without first obtaining the prior written consent of the Buyer, the Seller shall not in any manner disclose, advertise or publish the fact that Seller has furnished, or contracted to furnish the Buyer, the material and/or services ordered hereunder.
Compliance with Laws: Seller warrants that in performance of work under this order. It has complied with or will comply with all applicable federal, state, and local laws and ordinances, and all lawful orders, rules, and regulations thereunder. At the request of Buyer, Seller will furnish certificates to the effect that it has complied with the same.
Labor Requirements: Seller warrants that the articles furnished will be produced in compliance
with the applicable provisions of the Labor Standards Act of 1938 (29 U.S.C. 201-219), the Eight-Hour Law (40 U.S.C. 327-332), alt laws restraining the use of convict labor, together with the regulations issued under any of the foregoing and the Seller agrees to so certify on all of the Seller’s invoices upon the request of the Buyer.
Workmen’s Compensation Insurance: The Seller shall secure and maintain adequate
Workmen’s Insurance in accordance with the laws of the state or states wherein the
Seller shall furnish material and/or services for Buyer. Certificates of such insurance
will be furnished to Buyer upon request. Seller shall also comply with all other laws
and regulations as may be applicable to the material and/or services being furnished.
Taxes: The Seller agrees to pay all taxes imposed by law upon or on account of the material ordered hereunder.
Drafts: Drafts will not be honored
Severability: If any provision of this order is or becomes, at any time or for any reason unenforceable or invalid, no other provision of this order shall be affected thereby, and the remaining provisions of this order shall continue with the same effect as if such unenforceable or invalid provision had not been inserted in this order.
Costs and Expenses Upon Default: In the event of default by the Seller of any of the terms, covenants or conditions contained herein, the Buyer shall be entitled to receive from the Seller all of its costs and expenses, including reasonable attorney’s fees, which may arise or accrue from the Buyer enforcing its rights specified herein, whether such costs, expenses or attorney’s fees are incurred by filing suit or otherwise and whether such costs, expenses or attorney’s fees are incurred before or after judgment. Any pre-judgment and post-judgment interest shall accrue at the rate of 18% per annum compounded on an annual basis.