Purchase Order Terms and Conditions
1. Designation of Parties
The term “Buyer” as used herein at all times
refers to Hubert Company.
The term
“Seller” as used at all times refers to the “Seller” as designated on the “Purchase
Order.” The Purchase Order consists
of this document, the Hubert Purchase Order Terms and Conditions, the Electronic
Order Form generated for each order of Goods and the following attachments; (1)
the Shipping and Marking Requirements, attached hereto as Attachment A; (2) the
Hubert Purchase Order Routing Instructions attached hereto as Attachment B; (3)
the Hubert Invoice Requirements attached hereto as Attachment C; and (4) the Acceptance
and Acknowledgement of Hubert Purchase Order attached hereto as Attachment D. The
term “Customer” as used herein at all times refers to Hubert’s customer.
2. Definition of Goods
The term “Goods” shall mean those articles,
materials, supplies, drawings, data and other property and all services, including
design, assembly, delivery, installation, inspection, testing and expediting, specified
or required to conform to the terms of the Purchase Order.
3. Acceptance – Entire
Agreement
This Purchase Order shall be deemed accepted
by Seller in any manner permitted by law or upon the first of the following to occur:
(a) any performance by Seller hereunder; (b) Seller’s signing of the attached Acceptance
and Acknowledgment of this Purchase Order or any other form or letter of acknowledgement;
or (c) seven (7) days after Seller’s receipt of this Order. The terms and conditions of this Purchase Order shall govern with respect
to the Goods identified in the Purchase Order unless specifically provided by separate
written agreement signed by Buyer and Seller. Seller’s acceptance of this Purchase
Order or any performance hereunder shall be unqualified, unconditional and subject
to and expressly limited to the terms and conditions of this Purchase Order. No other terms shall apply and Buyer
shall not be bound by any terms additional to or different from those in this Purchase
Order including those that may appear in Seller’s quotations, acknowledgments, invoices
or in any other communications from Seller unless such terms are expressly agreed
to in a writing signed by Buyer. Acceptance
of materials or services, payment or any inaction by Buyer shall not constitute
Buyer’s consent to or acceptance of any such terms. Estimates furnished by Buyer shall not constitute commitments. Upon acceptance, the terms contained in the Purchase Order shall constitute
the entire agreement between Seller and Buyer. If written notification is not given to Buyer within seven days after receipt
of the Purchase Order, it is understood that the terms and conditions of this Purchase
Order are satisfactory and all settlements will be in accordance with such items
and conditions, and any questions arising relative thereto must be raised prior
to shipments of Goods.
4. Non-Waiver
No course of dealing or failure of either
party to strictly enforce any term, right or condition of this Purchase Order shall
be construed as a waiver of such term, right or condition.
5. Payment Terms
Invoices shall be paid in accordance with
terms of Net 45 Days unless payment terms more favorable to Buyer appear on Seller’s
invoice and Buyer elects to pay on such terms. The time for payment of invoices, or for accepting any discounts offered,
shall run only from the date of receipt of merchandise or a correct invoice, whichever
is later, and not from the date of the invoice.
6. Shipping and Billing
Seller shall:
(1) Ship the Goods covered by the Purchase Order
complete unless instructed otherwise,
(2) Ship to the destination designated on the Purchase Order,
(3) Ship according to routing instructions designated
on the Purchase Order,
(4) Place the Purchase Order number on all subordinate
documents,
(5) Enclose a packing memorandum with each
shipment, and when more than one package is shipped, identify the package containing
the memorandum,
(6) Mark the Purchase Order number on all packages
and shipping papers,
(7) Forward bills of lading and shipping notices
with invoices,
(8) Mail invoices, bills and notices to 9555 Dry Fork Road, Harrison,
OH 45030,
(9) Palletize all shipments unless otherwise
stated or agreed upon by Buyer.
If prepayment of transportation charges is
authorized, Seller shall include the transportation charges from F.O.B. point to
the destination as a separate item on the invoice stating the name of the carrier
used. Adequate protective packing shall
be furnished at no additional charge.
Shipping and routing instructions may be altered as mutually agreed upon without
written consent.
7. Shipping Directly to
Customer
Seller shall:
(1) Ship the Goods covered by the Purchase Order
in plain, unmarked boxes,
(2) Use Buyer’s name as shipper on all shipping
documents,
(3) Only use Buyer’s packing list, if provided,
and
(4) Not use or advertise Seller’s name and address
anywhere within or on the shipment,
unless required by law.
8. Customer Data Security
The Buyer considers the names, addresses, and other data of our customers (end users) to be our property and strictly confidential. The Seller is prohibited from utilizing that information to market directly to the end user and from selling, sharing, or in any way disclosing any end user data results without the Buyer's express prior written permission except as strictly necessary to fulfill orders (e.g. providing end user address information to common carrier for delivery of merchandise).
9. Title and Risk Loss
Title to Goods purchased by Buyer under this
Purchase Order shall vest in Buyer when the Goods have been delivered at the F.O.B.
point. If this Purchase Order calls
for additional services such as unloading, installation, or the like to be performed
after delivery, Seller shall retain risk of loss and damage to the Goods until the
additional services have been performed.
Notwithstanding the above, if Seller is expressly authorized to invoice Buyer for
stocks prior to shipment, title to those stocks shall vest in Buyer upon payment
of the invoice.
10. Assignment
Seller shall not assign any right or interest
under this Purchase Order (excepting moneys due or to become due) nor delegate any
work or other obligation to be performed or owed under this Purchase Order without
the prior written consent of the Buyer.
Any attempted assignment or delegation in contravention of the above provisions
shall be void and ineffective.
11. Variation in Quality
Buyer assumes no liability for Goods produced, procured, or shipped in excess of the amount specified on the Purchase Order. If Goods are shipped without approval or in excess of the amount specified on the Purchase Order, all excess may, at Buyer's sole discretion, be returned at the expense of the Seller.
12. Delay in Shipment
Failure of Seller for any reason to fulfill
delivery as promised will be considered sufficient cause to cancel this Purchase
Order. Buyer shall have the right to
suspend for a period of sixty (60) days shipments of Goods covered by the Purchase
Order, in the event of strikes, differences with workmen, accident or other contingencies
beyond Buyer’s control.
13. Rejection of Defective Goods
In the event that Buyer or the party to whom
the Goods are to be delivered, upon the receipt and inspection of the Goods by Buyer
or that party, reasonably deems the Goods to be defective or not in conformity with
this Purchase Order, Buyer or said party may cause the Goods to be returned to Seller
within a reasonable time after receipt of the Goods and Seller shall credit Buyer
for the price of said Goods and for any and all labor, transportation or other costs
incurred in returning the Goods to Seller.
If Goods are found to be defective, Seller cannot replace these Goods except upon
receipt of written instruction from Buyer.
14. Warranties
(1) Seller warrants that all Goods hereunder:
(a)
are fit and sufficient for the purpose or use intended;
(b)
are merchantable, and free from defects both patent and latent in material and workmanship; and
(c)
conform strictly to any and all specifications, drawings or samples specified or
furnished in regard to the Goods.
(2) Seller further warrants that it has title
to the Goods, that transfer of title to Buyer is rightful and that the Goods are
free from any security interest,
lien, encumbrance, or other interests adverse to
Buyer.
(3) Seller warrants that all materials used in,
and all components of the Goods, and all Goods supplied hereunder, are not hazardous
to human health
or safety when subjected to normal and continuous use.
(4) During the course of the life of the Goods,
Seller shall make such corrections, adjustments or modifications to the Goods as
may, from time to
time, be either required or recommended under the authority of
any federal, state or local law or regulation applicable to the Goods supplied by
Seller
hereunder, without regard to ownership of the Goods at that time, and without
charge or cost.
(5) Seller represents and warrants
to Buyer that (1) it owns or has the right to use the trademarks appearing on or
in connection with its Goods, (2) its
Goods do
not infringe patents or other intellectual property rights, and (3) it owns all
copyrights in any photographs, artwork, advertising, text, or other
promotional materials pertaining to its Goods and supplied
by it to Buyer (collectively “Materials”) and has obtained all necessary releases,
including
release of privacy and publicity rights, from all persons
that appear in any Materials.
(6) All warranties made herein shall run
to Buyer, to the successors or assigns of Buyer, and to Customers of Buyer, and
all of Seller’s warranties
shall survive any inspection or acceptance of, or payment
for, the Goods by Buyer, its assigns or successors, or by Customers of Buyer.
(7) All warranties and covenants made in regard
to the Goods shall not be affected by installation of, or accession or reasonable
modifications to the
Goods.
(8) All express warranties made by Seller in
regard to the Goods are given in addition to any
implied warranties common to such Goods.
15. Indemnity Provision
The Seller shall indemnify, hold free and
harmless, assume legal liability for and defend Buyer, its agents, customers, servants,
employees, officers, and directors, from any and all costs and expenses, including
but not limited to attorney’s fees, reasonable investigation and discovery costs,
court costs, and all other sums which Buyer, its agents, customers, servants, employees,
officers and directors may pay or become obligated to pay on account of any, all
and every demand or claim, or assertion of liability or any claim or action founded
thereon, arising or alleged to arise out of use of Seller’s products, or Seller’s
performance of this Purchase Order, or the operation of Seller’s business, or any
act or omission of Seller, his agents, servants, or employees, whether such claim
or claims, action or actions be for damages, injury to persons, groups, or organization,
whether employed by Seller or Buyer or otherwise, or for breach of warranty by Seller
either expressed or implied; Seller’s
insurance carrier’s denial of insurance coverage for the occurrence or event which
is the subject matter of the claim and/or refusal to defend Seller or Buyer shall
have no effect on Seller’s obligations hereunder. Seller shall defend
or settle; at its own expense any action or suit brought by a third party against
Buyer or its Customers for which it is responsible pursuant to this Section. Buyer
shall notify Seller promptly of any claim for which Seller is responsible, and shall
cooperate with Seller in every reasonable way to facilitate the defense of any each
claim.
16. Force Majeure
Neither party shall be responsible for any
delay or failure in performance of any part of this Purchase Order to the extent
that such delay or failure is caused by fire, explosion, war, strike, embargo, government
requirement, civil or military authority, act of God, act or omission of carriers
or other similar causes beyond its control (“force majeure conditions”). If any force majeure condition occurs, the party delayed or unable to perform
shall give immediate notice to the other party, and the party affected by the other
party’s delay or inability to perform may elect to (1) terminate this Purchase Order
or any part of it relating to material not already shipped; (2) suspend this Purchase
Order for the duration of the force majeure condition, and buy or sell elsewhere
material to be bought or sold or for which commitments have been made elsewhere;
or (3) resume performance of this Purchase Order once the force majeure condition
ceases with an option in the affected party to extend the period of the Purchase
Order up to the length of time the force majeure condition endured. Unless written notice is given within thirty (30) days after the affected
party is notified of the force majeure condition, the affected party shall be deemed
to have selected the suspension of the Purchase Order during the duration of the
force majeure condition.
17. Infringement
The following terms apply to any infringement, or claim of infringement,
of any United States
patent, trademark, or copyright based on the manufacture, normal use or sale of
any equipment furnished to Buyer hereunder.
Seller shall indemnify, hold harmless, and defend Buyer and its Customers for any
loss, damage, expense or liability that may result from all claims for infringement
or alleged infringement relating to trademarks, patents, copyright, right of publicity
or privacy, or other intellectual property rights relating to Seller’s Goods and
Materials. Seller shall
defend or settle; at its own expense any action or suit brought by a third party
against Buyer or its Customers for which it is responsible pursuant to this Section.
Buyer shall notify Seller promptly of any claim of infringement for which Seller
is responsible, and shall cooperate with Seller in every reasonable way to facilitate
the defense of any each claim.
18. Applicable Law
The terms and conditions provided herein
and the rights of all parties hereunder shall be construed under and governed by
the laws of the State of Ohio
without giving effect to the principles of conflicts of law thereof.
19. Compliance with Laws
Seller and all persons and Goods furnished
by Seller shall comply with all applicable laws and regulations to which they are
subject, including, to the extent applicable, but not limited to, the Fair Labor
Standards Act and the Occupations Safety and Health Act and all other federal, state
and local laws, ordinances, regulations and codes, including identification and
procurement of required permits, certificates, approvals and inspections in performance
under this Purchase Order. Seller agrees
to indemnify Buyer and its customers for any loss or damage that may be sustained
by reason of any failure to do so.
20. Tax
Federal manufacturer’s and retailer’s state
or municipal sales and use taxes when applicable shall be billed as separate items
on the invoice.
21. Insolvency
Either party may terminate this Purchase
Order and/or all orders placed hereunder by notice in writing, in the event that
the other party makes an assignment for the benefit of creditors or admits in writing
inability to pay debts as they mature, or a trustee or receiver of the other party
or of any substantial part of the other party’s assets is appointed by any court,
or a proceeding is instituted under any provision of the Federal Bankruptcy Act
by the other party, and is not dismissed within sixty (60) days or results in an
adjudication in bankruptcy.
22. Art, Films, Plans, Drawings
and Specifications
All art, films, plans, drawings, designs
and specifications, which may be supplied by the Buyer to the Seller, or produced
by the Seller for the Buyer as a result of this Purchase Order, shall be returned
to the Buyer upon completion of fabrication.
All such art, films, drawings, designs and specifications shall remain the property
of the Buyer, and the Seller shall not retain nor permit others to retain any copies
or reproductions thereof. Any information
derived from such art, films, plans, drawings, designs and specifications or the
information transmitted to the Seller shall be regarded, by the Seller, as strictly
confidential and shall not be disclosed to any third party without consent, in writing,
by the Buyer, nor shall the Seller make use of such information except in connection
with the fulfillment of the Purchase Order.
23.
Product Materials
Release
Seller represents and warrants to Hubert
Company, LLC that (1) it owns or has the right to use the trademarks appearing on
or in connection with its Products, (2) its Products do not infringe patents or
other intellectual property rights, and (3) it owns all copyrights in any photographs,
artwork, advertising text, or other promotional materials pertaining to its Products
and supplied to Hubert (collectively “Materials”) and has obtained all necessary
releases, including release of privacy and publicity rights, from all persons that
appear in any Materials.
24. Prices
Buyer shall be obligated to pay only the prices and other charges stated
in the Purchase Order. When prices are not so stated, the prices charged shall not exceed those
charged for the last shipment to Buyer of the same Goods or Seller’s lowest prevailing
market price for such Goods if lower than that charged for such last shipment. If Seller sells Goods covered by this
Purchase Order to other parties at prices lower than those set forth herein, the
price herein of any unshipped Goods shall be adjusted to such lower prices. Pricing of Goods shall be held constant
for the duration of Buyer’s catalogs as designated. Nothing contained herein shall permit an increase in the price specified
on the Purchase Order unless approved in writing by Buyer.
25. Extra Charges
No extra charges of any kind, including charges
for boxing, packaging, shipping or carriage except to the extent, if any, stated
in this Purchase Order, shall be allowed unless specifically agreed to by Buyer
in writing. If Buyer agrees in writing
to pay for shipping, Seller shall route all items to assure the lowest tariff rate
or as otherwise directed.
26. Cancellation
An order of Goods pursuant to this Purchase
Order may be cancelled by Buyer, without liability to Buyer, if the deliveries are
not made at the time and place and in the quantities or types of Goods specified
or in the event that Seller fails to perform or comply with its obligations hereunder. If an order of Goods is cancelled or
there is a failure to perform hereunder, Buyer shall be obligated to pay only any
unpaid portion of the purchase price of Goods shipped or services provided prior
to such cancellation. In no event shall
cancellation of such an order of Goods modify any of the obligations of Seller in
respect of Goods theretofore delivered to Buyer. This Purchase Order may be waived, amended, or modified only by Buyer’s formal
written change order, and no waiver on any one occasion shall be construed as a
waiver on any other occasion.
27. Term
The terms and conditions of this Purchase
Order shall remain in effect between Seller and Buyer until such are expressly amended,
terminated, or otherwise changed by a written document signed by both parties hereto.
28. Severability
Any provision of this Purchase Order which
is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without invalidating
or diminishing rights under the remaining provisions hereof, and any such prohibition
or unenforceability in any jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction.
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