These Terms of Purchase supersede all previous agreements between the Seller and G.L. Huyett. This Purchase Order and Terms of Sale do not constitute an acceptance of any offer or quote from Seller.
Seller agrees to provide the products, services, warranties, scope of work, and product support, hereinafter referred to as “Goods” in accordance with this Purchase Order and the Terms of Purchase (hereinafter referred to as “Agreement”) set forth herein. Upon acceptance of this Purchase Order or a shipment of goods, Seller shall be bound by this Agreement, including all provision set forth in the Purchase Order, whether Seller acknowledges or otherwise signs this Agreement or the Purchase Order, unless Seller and G.L. Huyett agree in writing to the contrary prior to Seller’s shipment of Goods. This Agreement may not be added to, amended, modified, superseded or otherwise altered, except if agreed to in writing by an authorized representative of G.L. Huyett. Any of the following acts shall constitute acceptance of this Purchase Order and Agreement: signing and returning a copy of the Purchase Order; delivery of any of the Goods ordered; or returning Seller’s own version of an Order Acknowledgement. Any additional term, provision, warranty, or condition in Seller’s Order Acknowledgement shall be deemed to be a material alteration of the Agreement and Purchase Order, and is hereby objected to by G.L. Huyett. Any such term, provision, or condition shall be totally inapplicable to this Purchase Order and Agreement unless specifically agreed to in writing by an authorized representative of G.L. Huyett. To the extent that this Agreement might be interpreted as acceptance of Seller’s prior offer, such acceptance is expressly made on condition of assent by Seller to the terms hereof and shipment of the Goods shall constitute such assent. Should the Seller fail to comply with any provision of this Agreement or Purchase Order, G.L. Huyett hereby reserves the right to reschedule any delivery or cancel any purchase order issued at any time prior to shipment of the Goods. G.L. Huyett shall not be subject to any charges or other fees as a result of such cancellation, or any restocking fees for excess inventories or materials built or purchased by Seller unless approved in writing by an authorized representative of G.L. Huyett.
Delivery of Goods shall be made pursuant to the provisions set forth in the Purchase Order. In the event that Seller fails to deliver the Goods within the time specified, or via the wrong carrier route method, G.L. Huyett may, at its sole option, decline to accept the Goods and terminate the Purchase Order and this Agreement. In the event that G.L. Huyett decides to accept such Goods, Seller agrees to ship such Goods via priority air shipment methods for overnight delivery at Seller’s sole expense, should such expedited delivery be requested by G.L. Huyett in writing to Seller. Seller shall package all items in suitable containers to permit safe transportation and handling, and to insure that Goods arrive at G.L. Huyett’s facility in good and resalable condition. Seller shall legibly and prominently place G.L. Huyett’s purchase order number on all shipping containers, packing sheets, bills of lading, and delivery tickets. Seller shall legibly and prominently place its lot number for each production lot on each shipping container, and individual lots shall be segregated from one another in a manner that prevents co-mingling of lots during transportation. It is desirable that the G.L. Huyett item number, Seller’s shipping quantity, Country of Orgin, G.L. Huyett’s purchase order number, and Seller’s lot number be barcoded in accordance with G.L. Huyett Packaging Specifications.
Risk of Loss
Title of the Goods shipped under this Purchase Order shall pass to G.L. Huyett in accordance with the shipping terms specified in the Purchase Order.
G.L. Huyett shall pay Seller the amount agreed upon and specified in the Purchase Order. Payment shall not constitute acceptance of the Goods. Seller shall invoice G.L. Huyett within ninety (90) days of delivery of Goods and must reference the applicable purchase order number, and attach the original Bill of Lading. G.L. Huyett reserves the right to return all incorrect invoices, and such delay may delay payment with no loss of cash discount if the Seller does not comply with these provisions. Unless otherwise specified in the Purchase Order, G.L. Huyett shall pay the invoiced amount within forty-five (45) days of receipt of a correct invoice. G.L. Huyett may at all times set off any amount that Seller, or any affiliate of Seller, owes to G.L. Huyett against any amount that G.L. Huyett, or any G.L. Huyett affiliate, owes to Seller.
Seller warrants that all Goods provided will be new and not be used or refurbished. Seller warrants that all Goods shall be free from defects in materials and workmanship and shall conform to all applicable specifications for a period of fifteen (15) months from the date of delivery to G.L. Huyett or for the period set forth in Seller’s standard warranty, whichever is longer. All warranties shall be construed as conditions as well as warranties and shall not be exclusive. Seller shall furnish to G.L. Huyett, Seller’s standard warranty and service guarantee applicable to the Goods. If G.L. Huyett identifies a defect or warranty problem during the warranty period, G.L. Huyett will promptly notify the Seller of such problem and will return the Goods to Seller, at Seller’s expense. Seller shall be responsible to reimburse G.L. Huyett for any and all costs associated with defects, including but not limited to inspection; sorting; storage; testing; transportation of defective parts between G.L. Huyett and its customers; transportation of defective parts between G.L. Huyett and Seller; transportation of replacement parts between G.L. Huyett and its customers, as well as between G.L. Huyett and Seller; any costs of recalls, reworking; fines; penalties; fess assessed by customers of G.L. Huyett; notices; advertisements; or any and all other costs associated with the shipment, release, use, assembly, or rework of defective products from Seller. Seller hereby acknowledges and agrees and hereby grants G.L. Huyett a right of offset to set off any claims or costs associated with defective products as described herein, against amounts due from G.L. Huyett to Seller for non-defective products, even if purchased under different purchase orders. Seller shall, at G.L. Huyett’s option, either repair or replace defective Goods, or credit G.L. Huyett’s account for the same. Replacement and repaired Goods shall be warranted for the remainder of the warranty period, or six months, whichever is longer.
G.L. Huyett shall have a reasonable time, after receipt of Goods, and before payment, to inspect them for conformity hereto, and Goods received prior to inspection shall not be deemed accepted until G.L. Huyett has run an adequate test to determine whether the Goods conform to the specifications hereof. Use of a portion of the Goods for the purpose of testing shall not constitute an acceptance of the Goods. If Goods tendered by Seller do not wholly conform to the provisions hereof, G.L. Huyett shall have the right to reject such Goods. Non-conforming Goods will be returned to Seller freight collect and risk of loss shall pass to Seller upon G.L. Huyett’s delivery to the common carrier.
Seller warrants, and upon request shall certify, that (i) it and the Goods furnished hereunder comply with all applicable United States, federal, state, and local laws, executive orders, and rules and regulations (including without limitation environmental laws), (ii) the Goods were produced and delivered in accordance with the Fair Labor Standards Act 1938, as amended, and all regulations and orders issued thereunder or relating thereto (including without limitation relative to equal employment opportunity), (iii) the tariff reductions and exemptions provided under NAFTA for goods of the type covered by this Purchase Order and will apply to the Goods covered by this Purchase Order, and the Seller shall maintain all records required under NAFTA to evidence that applicability, and (iv) in production of the Goods, Seller has complied with the Equal Opportunity Clause in 41 CFR 60-1.4; the Affirmative Action Clause regarding Disabled Veterans and Veterans of the Vietnam Era in 41 CFR 60-250-4; the Affirmative Action Clause regarding Handicapped Workers in 41 CRR 60-741.4; and any other provisions required by the Office of Federal Contract Compliance Programs as set forth in 41 CFR Chapter 60; and any other applicable Executive Orders. Seller warrants that none of the Goods were produced using forced, indentured, or convicted labor, or from the use of the labor of persons in violation of the minimum wage law in the country of manufacture, or in the case of services, the country in which services were rendered. Seller has complied with all laws regarding improper or illegal payments gifts, or gratuities, including G.L. Huyett’s entertainment and gift policies; and Seller has not paid, or not promised to pay, or authorized the payment of any money or anything of value, either directly or indirectly, to any person or entity for the purpose of illegally or improperly inducing a decision or obtaining or retaining business or an advantage in connection with the Goods purchased herein.
Environmental and Safety
Seller warrants and represents, and has properly tested and verified that the Goods, including all packaging and transportation materials, shipped pursuant to this Purchase Order and Agreement do not contain the following: Antimony; Arsenic; Barium (Water Soluble); Cadmium; Hexavalent Chromium; Lead; Mercury; Selenium; Asbestos; Fiberglass; Flame Retardants; Polybrominated Biphenyls (PBB); Polybrominated Diphenyl Ethers (PBDE); Anti-Fungal Additives; Colorants and Pigments; Refrigerants; Foam Blowing Agents; Residual Monomer Content in Polymers; Radioactive Isotopes; or Plasticizers in Polymers. Seller warrants that Goods conform to the Federal Hazardous Substances Act as amended, and the Toxic Substances Control Act of the U.S. Environmental Protection Agency, as amended. Seller further agrees to provide Material Safety Data Sheets (“MSDS”) as required by law with each shipment of the Goods, or to have available at the time of shipment on Seller’s Website. Unless otherwise noted, Seller hereby warrants and acknowledges and agrees that the Goods conform to European Directive for the Restriction of Hazardous Substances, otherwise known as “RoHS”.
Seller is an independent contractor for all purposes, without express or implied authority to bind G.L. Huyett by contract or otherwise. Neither Seller nor its employees, agents, or subcontractors (hereinafter referred to as “Seller’s Assistants”), are agents or employees of G.L. Huyett, nor entitled to any employee benefits of G.L. Huyett, including but not limited to, any type of insurance.
Seller Responsible for Taxes and Records
Seller shall be solely responsible for filing the appropriate United States, federal, state, and local tax forms, and paying all such taxes or fees, including estimated taxes and employment taxes, due with respect to Seller’s receipt of payment under this Agreement.
Seller shall be solely responsible for maintaining and requiring Seller’s Assistants to maintain such adequate products liability, health, auto, worker’s compensation, unemployment compensation, disability, liability, and other insurance, as required by law or as is the common practice in Seller’s and Seller’s Assistant’s trades or businesses. Upon request, Seller shall provide G.L. Huyett with certificate of insurance or evidence of coverage before commencing performance of this Agreement.
Seller shall indemnify and hold harmless, and at G.L. Huyett’s request, defend G.L. Huyett, its officers, directors, customers (including customer’s customers), agents and employees, against all claims, liabilities, damages, losses and expenses, including attorney’s fees and cost of suit arising out of or in any way connected with this Agreement, or the Goods provided under this Agreement, without limitation, any claim by a third party against G.L. Huyett alleging that the Goods or any other products or processes provided under this Agreement, infringe a patent, a copyright, trademark, trade secret or any other proprietary right of a third party, whether provided alone or in combination with other products, software, or processes.
Seller will acquire knowledge of G.L. Huyett confidential information in connection with its performance hereunder and agrees to keep such information in confidence during and following termination or expiration of this Agreement. Seller agrees to limit its internal distribution of G.L. Huyett confidential information to Seller’s Assistants who have a need to know, and further agrees not to disclose or use such information except in the course of performing hereunder and will not use such information to its own benefit or for the benefit of any third party. The Seller shall not disclose the existence of or any information concerning the Seller’s business relationship with G.L. Huyett unless required by law.
G.L. Huyett may terminate this Agreement and Purchase Order upon written notice to Seller. In the event, the Seller fails to perform or otherwise breaches this Agreement, files a petition for bankruptcy, becomes insolvent, or dissolves. In the event of such termination, G.L. Huyett shall pay Seller for those conforming Goods delivered to G.L. Huyett through the date of termination, less appropriate offsets. G.L. Huyett may terminate this Agreement for any other reason upon thirty (30) days’ notice to Seller. Seller shall cease to provide Goods under this Agreement on the date of termination specified in such notice. In the event of such termination, G.L. Huyett shall be liable to Seller only for those conforming Goods delivered to G.L. Huyett through the date of termination, including unburdened cost of labor and materials in process completed prior to such cancellation notice, less appropriate offsets.
G.L. Huyett shall not be liable for any failure to perform including failure to take delivery of the Goods as provided caused by circumstances beyond its control, which make such performance commercially impractical, including but not limited to acts of God, fire, flood, acts of war, government action and accident. In the event G.L. Huyett is so excused, either party may terminate the Agreement, and G.L. Huyett at its expense and risk, return any Goods received to the place of shipment.
If any provision of this Agreement is deemed invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Limitation of Liability
In no event shall G.L. Huyett be liable to seller or seller’s assistants, or any third party for any incident, indirect, special or consequential damages arising out of or in connection with, this agreement whether or not G.L. Huyett was advised of the possibility of such damage.
Assignment, Waiver, Cumulative Rights
Seller may not assign this Agreement or any of its rights or obligations under this Agreement, without the proper written consent of G.L. Huyett. Any assignment or transfer without such written consent shall be null and void. This Agreement shall inure to the benefit of, and be binding upon, the successors and assigns of G.L. Huyett without restriction. A waiver of any default hereunder or any term or condition of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or other term or condition. The rights and remedies herein provided to G.L. Huyett shall be cumulative, as to one another, and shall be in addition to any other rights and remedies provided by law or equity.
This Agreement shall be construed in accordance with, and disputes shall be governed by, the laws of the State of Kansas, excluding its conflict of law rules. The state and federal courts in Wichita, Kansas shall have jurisdiction and venue over all controversies arising out of, or relating to, this Agreement. Seller and G.L. Huyett hereby submit to the jurisdiction of said courts, and waive any defense of forum non conveniens.
This Agreement is the complete, final and exclusive statement of the agreement between the parties and supersedes any and all other prior and contemporaneous negotiations and agreements, whether oral or written, between them relating to the subject matter hereof. The terms and conditions of this Agreement shall prevail notwithstanding any variance with the terms and conditions of any acknowledgement or other document submitted by Seller.