Purchase Order Terms and Conditions
This Purchase Order is neither an expression of acceptance of any offer made to Buyer by Seller nor a confirmation of any contract 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. Any additional or different terms proposed by Seller are specifically rejected, unless otherwise expressly agreed to in a writing signed by an authorized representative of Buyer.
ACCEPTANCE
Commencement of performance pursuant to this Purchase Order constitutes acceptance hereof by Seller. If specified delivery dates cannot be met, Seller shall notify Buyer promptly of Seller’s best alternative proposed delivery date, which Buyer may accept or reject. The terms of this Purchase Order may not be modified, superseded, or amended except in a writing signed by an authorized representative of Buyer. 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 acceptance of, or payment for, any shipment or any other act.
DELIVERIES/TIME
Time is of the essence of this Purchase Order. If delivery of the Goods is delayed beyond the time indicated herein for any reason including, without limitation, Seller’s insolvency, bankruptcy, or assignment for the benefit of creditors, Buyer reserves the right without liability (in addition to its other rights and remedies) to cancel this order by written or facsimile 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. Unless otherwise specifically agreed to by Buyer, any provision for delivery of the Goods in installments shall not be construed as making the obligations of Seller severable. Shipment shall be properly packed to prevent damage. Freight terms should be collect, unless otherwise instructed, for all shipments moving to any Viking Range Facility, using only the approved carriers as listed on the Viking Range, LLC LTL Routing and Shipping Guide. Exception: where freight has been incorporated into the product price as a landed cost, then this practice will continue.
Shipments F.O.B. Seller’s plant shall be released at a declared valuation of the true replacement value, and 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. Seller shall notify Buyer at the time of shipping of the Goods, together with a copy of the bill of lading or shipping document and the packing list applicable hereto. All such documents and correspondence shall refer to Buyer’s Purchase Order number. Packing lists must bear a complete description of the Goods shipped.
PRICE AND PAYMENT
Prices or billing amounts shall not exceed the prices stated on the Purchase Order without the prior written consent of Buyer. The prices stated include packing, crating, and transportation F.O.B. point shown. Seller agrees that any price reduction applicable to the ordered Goods subsequent to the order date but prior to delivery will be applicable to this Purchase Order. Seller shall mail the invoice for the Goods to Buyer. The cash discount period will date from Buyer’s receipt of the ordered goods or from the date of the invoice, whichever is later. Buyer reserves the right to refuse any shipments sent C.O.D. and to dishonor any draft, and all Goods attendant therewith are at Seller’s risk. Except for charges to taxes as provided herein below, Buyer will not be responsible for any charge not shown on the face of this Purchase Order without Buyer’s prior written consent to such charges in advance.
Unless otherwise specified in writing, payment shall be net forty five (45) days from the receipt of Goods by Buyer at Buyer’s point of destination.
TERMINATION
Buyer may, at any time, terminate this Purchase Order for its convenience, in whole or in part, by written notice or verbal notice confirmed in writing to Seller. If so terminated, any claim of Seller shall be settled on the basis of and limited to the reasonable cost incurred by Seller prior to Buyer’s notice.
INTELLECTUAL PROPERTY RIGHTS
Seller warrants that the Goods do not infringe upon or constitute an unauthorized use of any patent, trade secret, copyright, or other intellectual property right, 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 actual or alleged infringement or unauthorized use of any such patent, copyright, trade secret, or other intellectual property right resulting from or arising out of the sale of the Goods. Buyer further agrees to pay and discharge any and all judgments, decrees, penalties, and settlements which may be rendered or reached in any and all such claims, suits, actions, or proceedings against the Buyer, its successors, assigns, customers, and users.
QUALITY ASSURANCE
Shipment and delivery of goods and services (in full or in part) to this purchase order signifies Seller represents and warrants to Buyer, and agrees, that (1) the goods shall be new, (2) the goods and services shall be merchantable, of good material, workmanship and quality, fit for the purposes for which Buyer intends them and free from faults and defects, (3) initial samples will be submitted for evaluation and approval under the requirements listed in the Viking Supplier Quality Manual (VSQM), (4) the goods and services shall conform to any samples, drawings, specifications, reliability, performance criteria standards or other requirements that are referred to in this order or that Buyer has otherwise specified or agreed to in writing, (5) the goods, their manufacture, packaging, labeling, branding and sale and the services shall comply with all applicable federal, state and local laws, regulations, standards and orders, including, without limitation, the Fair Labor Standards Act of 1938 and the Occupational Safety and Health Act of 1970, as amended, (6) Once product is approved by Buyer, Seller will not change the product in any way once without prior written approval from Buyer (7) Seller shall promptly furnish to Buyer all information and copies of documents (including, but not limited to, complaints, inquiries, test or inspection results and warnings) that Seller receives from an end-user of the goods, a government agency, an employee or agent of Seller or any other person or source that suggests or indicates that the goods may not conform to the requirements of this paragraph. (8) If Buyer requests it, Seller shall give Buyer “certificates of compliance” with applicable laws and regulations. (9) Buyer’s approval of a sample, drawing, specification or standard shall not relieve Seller of any of its warranties under this paragraph, including, without limitation, its warranties of merchantability, fitness and compliance with laws. (10) Seller’s warranties extend to future performance of the goods and services and survive inspection, tests, acceptance and payment, and shall be considered to have been given not only to Buyer but also to Buyer’s customers and to end-users of the goods.
Buyer may at any time, by written notice to Seller, change this order or the Contract as to (1) designs or drawings of or specifications for the goods or services, (2) time or place of delivery or performance, (3) method of packing or shipment or (4) quantity of the goods or extent of the services. Buyer’s employees or agents may at any time enter Seller’s premises to inspect and test the goods, Seller’s process of manufacturing of them and any materials, components or work-in-process that Seller will use in their manufacture.
DEFECTIVE GOODS
If any of the Goods fail to comply with any term of this Purchase Order, Seller shall promptly correct such discrepancy or replace such Goods at Seller’s expense following notice of such discrepancy from Buyer. Seller commits to give initial response to a failure within twenty-four (24) hours after notification and supply a written corrective action plan that protects Buyer and it’s customers within two (2) business days. Failure to respond with due diligence or a demonstrated lack of effectiveness may lead to additional requests and action from the Buyer, up to and including cancellation of this Purchase Order as to all such Goods by giving Seller notice, 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 Purchase Order by notice and as to all or any part of the Goods, purchase substitute Goods elsewhere and charge Seller with any loss incurred. If the Seller fails to maintain containment and countermeasures set forth, or issues become chronic, seller agrees to hire a third party (upon Viking Range, LLCs request and at Sellers expense) to assure implementation and effectiveness of containment. Viking Range, LLC will issue a charge at $300 USD per hour per Viking member required to contain, sort, or inspect a supplier’s product. Continued poor performance by the Supplier can lead to denial of future bidding and development of alternate suppliers.
EXCESS GOODS
Except for quantities of Goods in excess of those ordered constituting customary quantity variations common to the trade or industry, any quantity of Goods in excess of the amount ordered need not be accepted, and such excess goods may be received, held, and returned to Seller by Buyer at Seller’s risk and expense.
INSPECTION AND ACCEPTANCE
All Goods are subject to Buyer’s inspection, testing, and approval, both at Seller’s location and at Buyer’s point of destination. If Buyer’s inspection of any part of the goods (for any reason) indicates that the goods inspected are defective, then Seller shall reimburse Buyer for all costs and expenses (including internal labor) that Buyer incurs in inspecting all of the goods. Buyer reserves the right to reject and refuse acceptance of any Goods which do not comply with all the terms of this Purchase Order. Acceptance, payment, use, or resale of the Goods by Buyer shall not release Seller of any Seller’s obligations, representations, or warranties hereunder. Payment for any Goods shall not be deemed an acceptance thereof.
FABRICATIONS AND MATERIAL COMMITMENT
Buyer shall not be responsible for any of Seller’s commitments for materials or fabrication in advance of the time necessary to meet delivery dates specified herein unless agreed to by Buyer in writing in advance.
COMPLIANCE WITH LAW
Seller shall comply with the provisions of all applicable federal, state, and local laws, regulations, rules, and ordinances applicable to this Purchase Order and purchased Goods including, without limitation, any fair labor standards or statutes and any statute or regulation regulating occupational safety and health. Seller shall, following Buyer’s reasonable request, certify such compliance to Buyer in writing.
BUYER’S PROPERTY
Unless otherwise agreed in writing, all drawings, specifications, tools, dies, molds, jigs, patterns, machinery, fixtures, equipment, software, and any other property furnished to Seller by Buyer or paid for by Buyer for use in the performance of this Purchase Order shall be and remain the sole property of Buyer, subject to removal upon Buyer’s instruction used only in filling orders from Buyer, held at Seller’s risk, and kept insured by Seller while in Seller’s custody or control. The insurance shall be in an amount equal to the replacement cost thereof, the loss payable to Buyer.
TAXES
Except as otherwise provided, the prices stated do not include sales, use, excise, or similar taxes applicable to the sale of Goods. All such taxes and charges shall be shown separately on Seller’s invoice.
ASSIGNMENT
Seller shall not delegate any duties nor assign any rights or claims under this Purchase Order without the express prior written consent of Buyer. Any assignment or delegation made without Buyer’s consent shall be null and void.
INDEMNIFICATION
If Seller’s agents, employees, or subcontractors enter upon premises occupied by or under the control of Company or any of Company’s customers or suppliers in the course of the performance of the Agreement, Seller shall take all necessary precautions to prevent the occurrence of any injury (including death) to any person or any damage of any property arising out of any acts or omissions of Seller’s agents, employees or subcontractors, except for injury or damage due solely and directly to Company’s active negligence. Seller shall indemnify and hold Company harmless from and against any suits, liabilities, losses, damages, claims, causes of actions, and expenses (including attorneys’ fees) arising out of or connected with any act or omission of Seller, its agents, employees, or subcontractors, or a breach by Seller of these terms and conditions. This indemnification shall be in addition to the warranty obligations of Seller.
REMEDIES
No remedy provided herein shall be deemed exclusive of any other remedy available at law or equity. All claims for monies due or to become due from Buyer shall be subject to deduction by Buyer for setoff or counterclaim arising out of this or any other of Buyer’s Purchase Orders to Seller.
FORCE MAJEURE
In the event of Force Majeure, the party being delayed or damaged thereby shall inform the other party, in writing, as soon as possible but in any event within seven (7) days after the start of such Force Majeure, specifying the nature of the Force Majeure as well as the estimated duration thereof. In the event the Force Majeure lasts for more than sixty (60) days or is expected to last longer than sixty (60) days, then either party is entitled to immediately terminate the Purchase Order by simple notice in writing and without either party being entitled to any claim for damage. Otherwise both parties’ rights and obligations will be suspended for the period of the Force Majeure and new time schedules and supply dates shall be agreed upon, in writing, between the parties hereto.
Force Majeure shall be understood to mean and include, without limitation, damage or delay caused by acts of God, acts or regulations or decrees of any government (de facto or de jure), natural phenomena such as earthquakes and floods, fires, riots, wars, shipwrecks, freight embargoes, or other cause, whether similar or dissimilar to those enumerated above, provided always that they were unforeseeable, not attributable to and beyond the reasonable control of the party or parties affected by the Force Majeure, and which prevent the total or partial carrying out of any obligation under the Purchase Order.
CONFLICT IN FORMS
In the event of a conflict between the terms set forth herein and any supplemental contract documents, the terms set forth herein shall govern. Such terms and conditions shall not be modified or amended except by a writing signed by an authorized representative of each party. The preprinted terms and conditions appearing on any of Seller’s purchase orders or other form order documents shall be null and void.
ENTIRE AGREEMENT
This Purchase Order Agreement constitutes the entire agreement between the parties hereto, supersedes any and all prior understandings with regard to the subject matter, whether oral or written, and it may not be released, discharged, changed, or modified except by an instrument in writing signed by a duly authorized representative of each party. The invalidity, in whole or part, of any article or paragraph hereof shall not affect the validity of the remainder of such article or paragraph or of any agreement resulting therefrom.
GOVERNING LAW
This Purchase Order and the acceptance of it shall, as provided herein, constitute a contract made in, and to be governed in all respects by the laws of, the state of Mississippi .
NOTICES
Any notice required or otherwise given pursuant to this Purchase Order shall be in writing and shall be hand delivered, mailed certified mail, return receipt requested, postage prepaid, or by recognized delivery service. Any notice to Buyer shall be addressed as follows: Appropriate Purchasing Manager Name, Viking Range, LLC. Any notices to Seller shall be directed to the address of Seller shown on the Purchase Order.