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Terms and Conditions for Retoship Purchase Orders
These terms and conditions (these “Terms”) govern the performance of services or delivery of goods, or both, to Retoship LL and/or its affiliate(s), and are incorporated into, Company’s purchase order (the “P.O.”) which you (“Vendor”) accept by issuing an invoice under the P.O. Such Terms cannot be amended or modified without written agreement by an authorized representative of Company and shall apply except to the extent a separate signed agreement exists between Company and Vendor. In the absence of such other written or signed agreement, this P.O. is the sole offer and expressly limits Vendor’s acceptance to these Terms and no other terms. Company shall not be bound by any terms and conditions set forth in Vendor’s invoice, acknowledgment, proposal or other pre-printed forms. Company may revoke, amend or modify the P.O., including these Terms, at any time prior to Vendor’s acceptance.
1. DELIVERY OF GOODS.
(a) To the extent Vendor is delivering goods, Vendor agrees to deliver the goods covered by this P.O. (the “Goods”) on or before the date specified on the P.O. The Goods shall be delivered as directed by Company. If deliveries are not made at the time agreed upon, Company reserves the right to cancel the P.O. or to purchase elsewhere and hold the Vendor accountable.
(b) Unless otherwise specified, the Goods shall be delivered F.O.B. Company's location.
2. DELIVERY OF SERVICES.
(a) To the extent Vendor is performing services, Vendor shall diligently perform the services covered by this P.O. (the “Services”) in a timely manner in accordance with this P.O., the reasonable written instructions of Company not inconsistent with this P.O., and all applicable laws and regulations.
(b) To the extent applicable to the Services, any inventions, data, works or other Company developments resulting from the Services (“Results”) are the exclusive property of Company.
3. INSPECTION RIGHTS AND RIGHT TO REJECT. Company shall have the right to inspect the Goods, including the right to verify the quantity of Goods actually shipped, before tendering payment or accepting the Goods, within the sooner of: i) the payment terms set forth in the P.O.; or ii) thirty (30) days after actual receipt of the Goods at Company's place of business. Upon inspection, and in the event that the Goods or the tender of delivery fail in any respect to conform to specifications or the terms of this P.O., Company may, by providing notice to Vendor: (a) reject the whole; (b) accept the whole; or (c) accept any portion and reject the rest. At the request of Company, Vendor agrees to replace or correct defects of any non-conforming Goods without expense to Company when notified of such non-conformity by Company. In the event of Vendor’s failure to correct defects or replace non-conforming Goods promptly, Company, after reasonable notice to Vendor, may make such corrections or replace such Goods and charge Vendor for costs incurred by Company in doing so, and Vendor agrees to reimburse Company such costs.
4. CONFIDENTIALITY. Vendor shall treat all material and information provided to Vendor by Company hereunder, whether or not such information is marked as confidential (“Confidential Information”), in strict confidence and shall not share such Confidential Information with any third party. All Confidential Information shall remain the exclusive property of Company. All material provided by Company to Vendor shall be Company material and be held and used by Vendor in strict confidence to be used only in performing the Services and shall be returned to Company or destroyed at Company’s reasonable direction.
5. TERMINATION FOR CONVENIENCE OF COMPANY. Company may terminate this P.O. or any part hereof by notifying Vendor: (i) before the Goods are shipped; and (ii) with respect to Services, upon ten (10) days written notice. Upon such notice, Vendor shall immediately stop all work hereunder, and Company shall not be responsible for any of Vendor’s costs following the date of termination.
6. TERMINATION FOR CAUSE. Company may also terminate this P.O. or any part hereof in the event of any breach or default by Vendor of any material term. In the event of termination for cause, Company shall not be liable to Vendor for any of Vendor’s costs following the date of the event giving rise to the breach or default.
7. WARRANTIES. Vendor hereby represents, warrants, and covenants to Company as follows: (a) Vendor has legal title to the Goods, and transfer of title to Company of the Goods or Vendor’s performance of the Services shall not violate any agreement between Vendor and a third party; (b) the Goods shall be delivered free from any security interest or other lien or encumbrance; (c) the Goods shall be merchantable and fit, for the ordinary purposes for which such Goods are used; (d) the Goods ordered to specifications will conform thereto and to any drawings, samples, or other description furnished by Company; (e) Vendor shall perform all Services in accordance with all applicable laws, regulations, and professional standards and shall render Services in a workmanlike and professional manner consistent with industry standards and as described in any proposal, exhibit, or addendum attached hereto; (f) Vendor carries, at its sole expense and with financially sound and reputable insurers, insurance coverage (including worker’s compensation, errors and omissions, professional liability and comprehensive liability) with respect to the conduct of its business in such amounts as are customary for reasonably well-insured companies engaged in similar businesses; and (g) Vendor is responsible for its own taxes, benefits, health insurance, sick leave or vacation, and shall not be covered by Company’s workers compensation/employer’s liability insurance. The warranties described above, together with Vendor's service warranties and guarantees, if any, shall survive Company’s acceptance of and payment for the Goods or Services and shall run to Company, its successors, assigns and customers.
COMPANY EXPRESSLY CONDITIONS ACCEPTANCE OF THIS P.O. ON VENDOR ASSUMING THE WARRANTIES DESCRIBED ABOVE. NO DISCLAIMER OF ANY OR ALL OF THE ABOVE WARRANTIES CONTAINED IN ANY FORM OR ACKNOWLEDGEMENT OF THE VENDOR SHALL BE EFFECTIVE UNLESS COMPANY EXPRESSLY CONSENTS IN WRITING.
8. IDENTIFYING NUMBERS. Invoices received without the P.O. number may be rejected for payment and returned to the Vendor for correction.
9. INDEMNIFICATION. Vendor shall defend, indemnify, and hold harmless Company, its directors, officers, agents and employees from and against all claims, expenses, or liability of whatever nature arising out of: (i) Vendor’s breach or default of any warranty or obligation hereunder; (ii) Vendor’s willful misconduct or negligent acts or omissions; (iii) the infringement (or claim thereof) of any third party’s intellectual property rights caused by the Goods or the performance of the Services; and (iv) any defect in the Goods. If Vendor willingly does not participate in the defense of such claim, Vendor will be bound in any subsequent action between Company and Vendor as to any determination of fact common to the two litigations.
10. MISCELLANEOUS. Except for any other agreement relating to the subject matter of this P.O. which has been signed by both Company and Vendor, this writing is intended by the parties as a final expression of their agreement and is intended also as a complete and exclusive statement of the terms of their agreement. These Terms apply only in the case of no other signed written agreement between the parties governing the Goods under this P.O. No course of prior dealings between the parties and no usage of the trade shall be relevant to supplement or explain any term used in this P.O. Acceptance or acquiescence in a course of performance rendered under this P.O. shall not be relevant to determine the meaning of this P.O., even though the accepting or acquiescing party has knowledge of the nature of the performance and opportunity for objection. Whenever a term defined by the Uniform Commercial Code, as adopted in Delaware, is used in this P.O., the definition contained in the Uniform Commercial Code is to control. Company and Vendor shall have all rights and remedies afforded by the Uniform Commercial Code as adopted in Arizona. This P.O. can be modified or rescinded only by a writing signed by both Company and Vendor. No claim or right arising out of a breach of this P.O. can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. Waiver by either Vendor or Company of a breach by the other of any provision of this P.O. shall not be deemed a waiver of future compliance therewith, and such provisions shall remain in full force and effect. No right or interest in this P.O. shall be assigned by either Company or Vendor without the written permission of the other party, and no delegation of any obligation owed, or of the performance of any obligation, by either Company or Vendor shall be made without the written permission of the other party. A change in control of the Vendor prior to completion of this P.O. shall constitute an impermissible delegation, which will make this P.O. voidable at the option of Company. This P.O. shall be governed by and construed in accordance with the provisions of the laws of Arizona, and any action, suit or other legal proceeding which either party may commence to resolve any matter arising under or relating to any provision of this P.O. shall be commenced only in the state or federal courts located in the state in which Goods or Services are received by Company, and the parties hereby consent to the jurisdiction of such court with respect to any such action, suit or proceeding.