Purchase Order Terms & Conditions
Important – Read Carefully
Buyer objects in advance to the inclusion of any additional or different terms proposed by Vendor in its acceptance of this order. See Section 1 Below.
1. ACCEPTANCE; PURCHASE ORDER CONSTITUTES ENTIRE AGREEMENT – This Order constitutes Buyer’s offer and may be accepted by Vendor (or Contractor where applicable) only in accordance with the terms hereof. Any acceptance herein of an offer of Vendor, or any confirmation herein of a prior agreement between Buyer and Vendor, is expressly made conditional on Vendor’s assent to the additional or different terms contained herein. This Order may be accepted by Vendor by commencement of work, shipment of goods, or furnishing of services hereunder. Dispatch of Vendor’s acknowledgement form or other written document will also act as an acceptance if it agrees with this Order with respect to the description, amount, price and time of delivery of the goods or services ordered. Notwithstanding any waiver in any instance, or any oral agreement, or any instructions, terms and conditions that may be contained in any quotation; acknowledgement, invoice or other written document of Vendor, no addition to, waiver for the future or modification of, any of the provisions herein contained shall be of any force or effect unless made in writing and executed by Buyer.
2. CHANGES – Buyer shall have the right at any time to make changes in this Order by written notice to Vendor, and Vendor agrees to comply with such changes. If such changes cause a material increase or decrease in Vendor’s costs or time of performance of this Order, Vendor shall notify Buyer immediately and negotiate an equitable adjustment.
3. PRICE – If this Order is not priced it shall not be filled at prices higher than those last quoted and charged Buyer for the same articles. Charges for boxing, packaging or cartage will not be allowed or paid by Buyer unless otherwise expressly stated on this Order. Goods are purchased on a delivered basis. An element of freight is included in the purchase price of the materials. All freight charges are to be paid by the supplier to the carrier without further liability to Infiltrator Water Technologies, its divisions, subsidiaries or affiliates, or its customers and/or consignee.
4. SHIPPING – Buyer reserves the right to route all shipments. Delays in shipment shall be reported immediately by Vendor to Buyer. Every package or other shipping unit, bill of lading, shipping memorandum and invoice must be marked with Buyer’s Purchase Order Number. Vendor’s serial numbers must be shown on all shipping papers and invoices.
5. TIME OF THE ESSENCE – Time of shipment and of other aspects of performance hereunder is of the essence of this agreement.
6. DELIVERY/TITLE – Unless otherwise agreed, delivery shall be f.o.b. point of destination and title shall pass to Buyer upon acceptance at the final delivery point. Risk of damages or loss following shipment and prior to acceptance by Buyer shall be the responsibility of Vendor. Any patterns, dies, molds, jigs and fixtures furnished to Vendor by Buyer, or specifically paid for by Buyer, shall be the property of Buyer and subject to removal by Buyer upon completion of the order, and shall be used only in filling Buyer’s orders and held by Vendor at its sole risk.
7. RIGHT OF INSPECTION AND REJECTION – Material and equipment supplied by Vendor shall be received subject to Buyer’s inspection and approval within a reasonable time after delivery, notwithstanding prior payment. If specifications or warranties are not met, material and equipment may be returned at Vendor’s expense. No material or equipment returned to Vendor as defective shall be replaced except upon Buyer’s formal authorization.
8. ASSIGNMENT- Neither this Order nor any interest therein nor any claim arising hereunder shall be transferred or assigned by Vendor without the prior written consent of Buyer. Buyer may transfer or assign the benefits of this agreement, in whole or in part, including without limitation the Vendor’s warranty, without the approval of Vendor.
9. GOVERNING LAW – This Order, and the rights and obligations of the parties thereto, shall be determined in accordance with the laws of the State of Connecticut.
10. WARRANTY – Vendor warrants that all goods or services furnished pursuant to this Order will be free from defects in material or workmanship and will be in conformity with the requirements of this Order, including drawings and specifications, if any, and reasonably fit for the purpose disclosed in this Order or in such drawings and specifications, and Vendor further warrants that such goods or services will be merchantable and fit for the purpose for which they are sold, and where design is Vendor’s responsibility, will be free from defects in design. Buyer’s approval of Vendor’s design or material shall not be construed to relieve Vendor of the warranties set forth herein. Without limitation of any rights which Buyer may have at law by reason of any breach of warranty, goods which are not as warranted may at any time within twelve (12) months after delivery be returned at Vendor’s expense. Buyer at its option may require Vendor either to replace such goods at no increase in price (Vendor must pay all repacking, transportation and handling charges both ways) or to refund the purchase price and any charges in connection therewith.
11. INVOICES – All invoices shall be mailed to Buyer at its office as indicated on the face of this Order and will state Buyer’s Purchase Order Number clearly on the Invoice. Invoice and duplicates shall be rendered for each order or for each shipment if more than one is made on an order. No invoice shall be delivered by Vendor to any employee of Buyer. An itemized delivery ticket, bearing Buyer’s Purchase Order Number as shown hereon, must be left with the goods to insure their receipt. If delivery is made by carrier, an itemized delivery ticket must be attached to the package or other shipping unit. The payment discount period will date from receipt of the invoice and not from the date of the invoice. In case of errors on an invoice, the payment discount period will date from the receipt of corrected invoices. Vendor shall use the lowest published freight rates and any excess transportation charges incurred, including any that deviate from the published tariff rates, are to be borne by the Vendor. All invoices must bear the following certification in order to be passed for payment: “We hereby certify that these goods were produced in compliance with the Fair Labor Standards Act of 1938, as amended, and regulations and orders issues by the United States Department of Labor thereunder.”
12. PATENT INDEMNITY – Vendor agrees to indemnify, save harmless and defend Buyer from and against any and all suits, claims, damages, costs, and attorney’s fees arising out of or in connection with any infringement or claimed infringement of any United States patent, trademark or copyright in the manufacture, use or sale of the equipment or materials furnished under this Order. In case said equipment or material is in such suit, or in final adjudication elsewhere, held to constitute infringement, and the use thereof is enjoined, Vendor shall, at its own expense, either procure for Buyer the right to continue using said equipment or material, or at the option of Buyer either replace same with equally efficient non-infringing equipment or material, or modify it without impairing its efficiency so it becomes non-infringing, or remove said equipment or material and refund the purchase price and the transportation and installation costs thereof.
13. INDEMNITY AND INSURANCE – To the fullest extent permitted by law, Vendor and any other manufacturer of the work supplied under this purchase order agree to indemnify, hold harmless and defend purchaser, its affiliates, parents and subsidiaries, and their employees (the “indemnified parties”) from and against any and all liability for loss, damage, attorneys’ fees or expense which the indemnified parties may suffer or for which the indemnified parties may be held liable for reason of injury (including death) to any person (including vendor’s employees), or damage to any property arising out of or in any manner connected with the work to be performed for and products supplied to purchaser, in whole or in part any act, omission, negligence or strict liability of the indemnified parties, or any of their representatives, employees, subcontractors or third parties, whether known or unknown to purchaser and/or Vendor. Vendor agrees that Purchaser shall be named as an Additional Insured on all of Vendor’s policies of insurance (except Worker’s Compensation) and that Vendor’s policies of insurance shall provide insurance coverage, on a primary basis, to Purchaser, and shall not require Purchaser’s policies to contribute in the payment of the loss. It is specifically agreed by Vendor that Purchaser’s policies of insurance are in excess of any coverage to be provided by Vendor to Purchaser as Additional Insured with the following limits: (a) Commercial General Liability Insurance with a minimum Limit of Liability of $1,000,000 each occurrence, $1,000,000 Products/Completed Operations Aggregated Limit and $2,000,000 General Aggregate Limit, (b) Commercial Automobile Liability Insurance including Owned, Hired and Non-Owned Vehicles with a minimum limit of $1,000,000 each accident, (c) Commercial Umbrella Liability Insurance with a minimum Limit of Liability of $2,000,000 each occurrence and $2,000,000 Aggregate Limit, (d) Worker’s Compensation Insurance which provides Statutory Benefits and Employers Liability Insurance with limits of $500,000 (each accident and each employee by disease). The certificate shall require that thirty (30) days written notice be provided to Purchaser prior to cancellation or non-renewal, or prior to any material change in a policy, term or condition. In addition, a renewal Certificate of Insurance shall be provided in the event that the Vendor continues to perform work for Purchaser after the certificate expiration date. The Vendor is required to provide its own Property Insurance and assume all risk of loss on all materials that are part of this Purchase Order until such time as the materials are accepted by the Purchaser.
14. COMPLIANCE WITH LAWS – Vendor, in the performance of this Order, shall comply with the provisions of the Fair Labor Standards Act, as amended, as well as the Regulations and Orders of the Department of Labor issued thereunder, Executive Order No. 11246 as amended, 29 CFR 470, 41 CFR 60-1, 60-250, 60-741, the provisions of the Occupational Safety and Health Act of 1970, and all other applicable Federal, state, and local laws, regulations, rules and ordinances, including but not limited to the those dealing with the protection of the environment. Vendor agrees to deliver as a separate line item a NAFTA Certificate of Origin (Customs Form 434) for all goods that meet the NAFTA Rules of Origin. Buyer reserves the right to withhold all payments to the Vendor until such time as a completed NAFA Certificate is delivered. A NAFTA Certificate is mandatory for all goods which are labeled “Made in the USA”. Vendor agrees in connection with this order not to discriminate against any employee or applicant for employment because of race, sex, religion, color, age, national origin, handicap or status as Vietnam Era or Special Disabled Veteran.
15. CHEMICAL SUBSTANCE IDENTIFICATION – By acceptance of this Order, Vendor certified that any chemical substance(s) furnished pursuant to this Order has been properly labeled, and that proper information on the substance(s), e.g. material safety data sheets, have been provided to Buyer, pursuant to all federal, state or local laws and regulations.
16. TERMINATION – Buyer, by written notice, may terminate this order, in whole or in part. In the event this order is terminated as a result of Vendor’s default, the Vendor shall be liable for all damages allowed in law or equity, including the excess costs of reprocuring similar items. If this order is terminated for the convenience of Buyer, Vendor will be compensated to the extent that items have been accepted by Buyer prior to the effective date of termination. Other than to this extent, Buyer shall not be liable to Vendor for any damages on account of its failure to accept all of the items ordered.
17. CONFIDENTIALITY/TRADE SECRETS – All specifications, data and other information furnished by Buyer, or its agents, to Vendor in connection with this order remain the exclusive intellectual property of Buyer and shall be treated by the Vendor as proprietary and shall not be disclosed or used, outside the limitation of this order, without prior written approval of the Buyer. In addition, the purchase of the Vendor’s product does not authorize the vendor to use the name of or make reference to Buyer for any purpose in any releases for public or private dissemination, nor shall the Vendor divulge or use in any advertisement or publication of any specifications, data, or other information pertaining to or relating to this usage without prior written approval of the Buyer. This order is confidential between Buyer and the Vendor, and it is agreed by the Vendor that none of the details connected herewith shall be published or disclosed to any third party without the Buyer’s written permission.
18. BUYER’S PROPERTY – All material, including tools furnished or specifically paid for by the Buyer shall be the Buyer’s property, shall be subject to removal at any time without additional cost upon demand by the Buyer, shall be kept separate from other materials or tools, and shall be clearly identified as the property of the Buyer. Vendor assumes all liability for loss or damage, with the exception of normal wear and tear, and agrees to supply detailed statement of inventory at monthly intervals or as otherwise agreed upon.
19. TAXES – Except as may be otherwise provided in this Purchase Order, the contract price includes all applicable federal, state, and local taxes.
20. SUPPLEMENTAL INFORMATION – Any specifications, drawings, notes, instructions, engineering notices or technical data referred to in this Purchase Order shall be deemed to be incorporated by reference as if fully set forth. In case of any discrepancies or questions, Vendor shall refer to the Buyer for decision, instructions or for interpretation.
21. SETOFFS AND COUNTERCLAIMS – All claims for moneys due or to become due from the Buyer shall be subject to deduction by the Buyer for any setoff or counterclaim arising out of this or any other of the Buyer’s Purchase Orders with Vendor, whether such setoff or counterclaim arose before or after any such assignment by Vendor.