Terms of Purchase
These Terms of Purchase apply to all purchases of products and/or services by Defenshield Inc. (the
“Company”) and each vendor (“Seller”).
1. Acceptance. Commencement of performance pursuant to this Purchase Order constitutes acceptance hereof by Seller. If delivery dates cannot be met, Seller shall promptly inform Company by email, followed by return mail, of Seller’s best possible delivery for the Company’s acceptance.
2. Deliveries, time. The Company’s production schedules are based upon the agreement that materials will be delivered to the Company by the date specified on the face of the purchase order. Time is therefore of the essence of this Purchase Order. Delivery shall be DDP (Incoterms 2000) to the stipulated location. If deliveries are not made at the time and location agreed upon, Seller shall be charged a late fee of 5%. If the deliveries are not made by the date specified on the face of the purchase order, or Seller cannot provide adequate assurances of timely delivery prior to such date, the Company reserves the right to cancel or to purchase elsewhere, and hold Seller accountable for all losses.
3. Prices. Seller’s price shall not be higher than last quoted or last charged to the Company unless otherwise agreed in writing. No extra charges of any kind, including without limitation, crating or cartage, shall be allowed unless specifically agreed to, in writing, in advance, by the Company.
4. Quantities. Shipments must equal exact amounts ordered unless otherwise agreed by the Company.
5. Warranty. Seller warrants all materials or services delivered hereunder to be free from defect of material or workmanship and to conform strictly to the specifications, drawings, or sample specified or furnished. This warranty shall survive any inspection, delivery, acceptance, or payment by the Company of the materials or services.
6. Inspection and rejection. The Company, or its agent, may inspect and test materials, work-in-progress and finished goods at all times and places during manufacture. Final inspection shall be at the Company’s discretion. Materials rejected as not conforming to this Purchase Order, or as otherwise defective, shall be returned at Seller’s expense, including transportation and handling costs. In case of rejection, neither the Company nor its customer shall be liable for any reduction in value of samples used in connection with such inspection or test. Except as otherwise agreed in writing, all shipments and supplies furnished under this purchase order shall be subject to final inspection and acceptance by the Company after receipt at destination notwithstanding any previous source inspection or acceptance. Seller shall maintain an inspection and quality control system acceptable to the Company.
7. Company’s property. All material, including tools, furnished or specifically paid for by the Company shall be the Company’s property, shall be subject to removal at any time without additional cost upon demand by the Company, shall be used only in filling orders from the Company, shall be kept separate from other materials or tools, and shall be clearly identified as the property of the Company. Seller
assumes all liability for loss or damage, with the exception of normal wear and tear, and agrees to supply detailed statements of inventory at monthly intervals or as otherwise agreed upon.
8. Patents. Seller shall defend, at Seller’s expense, the Company, its distributors and dealers, and users of the products of the Company and indemnify them with respect to any and all claims that the products or materials furnished by the Seller under this Purchase Order infringe any United States Letters Patent, and with respect to any and all suits, controversies, demands, and liabilities arising out of any such claim, provided that the foregoing shall not apply to any infringement resulting from Seller’s use of a patented invention required to comply with the written instructions of the Company if such patented invention is not normally utilized by the Seller.
9. Taxes. Except as may be otherwise provided in this Purchase Order, the contract price includes all applicable federal, state, and local taxes in effect on the date of this Purchase Order. In case of new taxes or increased rates or the repeal of taxes or the reduction of rates, the contract price shall be adjusted accordingly.
10. Assignment. Seller shall not delegate any duties, nor assign any rights or claims under this Purchase Order, or for breach thereof, without prior written consent of the Company, and any such attempted delegation or assignment shall be void.
11. Setoffs and counterclaims. All claims for moneys due or to become due from the Company shall be subject to deduction by the Company for any setoff or counterclaim arising out of this or any other of the Company’s Purchase Orders with Seller, whether such setoff or counterclaim arose before or after any
such assignment by Seller.
12. Changes. The Company shall have the right to make, from time to time and without notice to any sureties or assignees, changes as to packing, testing, destinations, specifications, designs, and delivery schedules (postponements only). Seller shall immediately notify the Company in writing of any increases or decreases in costs caused by such changes and an equitable adjustment in prices or other terms hereof shall be agreed upon in a written amendment to this Purchase Order.
13. Bankruptcy. In the event of any proceedings, voluntary or involuntary, in bankruptcy or insolvency by or against Seller, the inability of Seller to meet its debts as they become due, or in the event of the appointment, with or without Seller’s consent, of an assignee for the benefit of creditors or of a receiver, then the Company shall be entitled, at its sole option, to cancel any unfilled part of this Purchase Order without any liability whatsoever.
14. Governing law. This Purchase Order and the acceptance of it shall be a contract made in the State of New York. This Purchase Order shall be construed and enforced in accordance with the domestic laws of the State of New York without giving effect to its conflict of laws provisions. Any litigation relating to this Purchase Order shall be venued in a court of competent subject matter jurisdiction in Onondaga County, New York and Seller waives irrevocably any objection to such venue and/or forum non conveniens claim. Seller shall comply with all applicable laws, rules and regulations in performing its duties hereunder.
15. Traffic routing. All shipping documents and shipping instructions provided by the Company must be strictly adhered to. Any losses accruing from deviation from the Company’s routing instructions will be charged to Seller’s account.
16. Proof of shipment. Seller shall forward to the Company, with the invoice, the express receipt or bill of lading, signed by the carrier, evidencing the fact that shipment has been made.
17. Proof of Insurance. Seller shall forward to the Company, a Certificate of General Liability Insurance. (such as an ACORD form 25)
18. Supplementary information. Any specifications, drawings, notes, instructions, engineering notices, or technical data referred to in this Purchase Order shall be deemed to be incorporated herein by reference as if fully set forth. In case of any discrepancies or questions, Seller shall refer to the Company for decision or instructions or for interpretation.
19. Title to drawings and specifications. The Company shall at all times have title to all drawings and specifications furnished by the Company to Seller and intended for use in connection with this Purchase Order. Seller shall use such drawings and specifications only in connection with this Purchase Order, and shall not disclose such drawings and specifications to any person, firm, or corporation other than the Company’s or Seller’s employees, subcontractors, or government inspectors. Upon the Company’s request or upon completion of this Purchase Order, Seller shall promptly return all drawings and specifications to the Company.
20. Entire agreement. This Purchase Order constitutes the entire agreement between the parties with respect to the transactions contemplated hereby and supersedes all prior agreements and understandings between the parties relating to such transactions. In all respects, this Purchase Order shall govern, and any other documents, including, without limitation, preprinted terms and conditions on Seller’s purchase orders shall be of no effect and any contradictory or supplemental terms in any such documents are hereby objected to. This Purchase Order shall be deemed to have been drafted by both parties. If any portion or portions of these terms shall be for any reason invalid or unenforceable, the remaining portion or portions shall nevertheless continue in full force and effect and the rights and obligations of the parties shall be construed and enforced as if this order did not contain the particular provision held to be invalid or unenforceable. The failure of the Company to enforce or insist on the strict performance of any of the term(s) in this order shall not constitute waiver of such term(s). No waiver, modification, alteration or supplement of any of the provisions hereof shall be binding unless in writing, signed by an officer of the Company. The United Nations Convention or Contracts for the International Sale of Goods shall not apply.
21. Pre-Payments. All payments by the Company in advance of complete delivery hereunder are subject to forfeit in the event of Seller’s failure to provide complete and timely delivery (or adequate assurances of complete and timely delivery) of all goods and services covered hereby. In the event of such failure of complete and timely delivery (or failure to provide adequate assurances of complete and timely delivery),Seller shall promptly refund all amounts paid hereunder, including interest at 6.25% from the earlier of (1) the failure to provide adequate assurances or (2) the stipulated delivery date.