BIRNS Purchase Order Terms

Payment Terms. The price of the goods and/or services shall be as specified in the Purchase Order in US dollars. Following the acceptance of the goods and/or services by the Buyer, payment shall be made within sixty (60) days of the receipt of Seller’s proper, correct and complete invoice. In the event of non-conforming goods or services, default or termination, Buyer may, at its election, withhold any monies payable hereunder. Undisputed portions of invoices shall remain due.

1. QUALITY: Seller warrants that all goods, machinery equipment and/or services provided (hereunder thereinafter referred to as “Goods”) shall conform to all specifications and descriptions provided by Buyer, shall be new, and shall be free from any and all defects in materials and workmanship. Seller warrants that all such Goods shall conform to any statements made on the containers or labels or advertisements for such Goods and that all such Goods will be adequately contained, packaged, marked and labeled. Seller warrants that Seller’s obligation under this warranty and such warranties shall survive inspection, testing, acceptance and use. Seller agrees to replace or correct defects of any Goods not conforming to the foregoing warranty promptly without expense to Buyer when notified of such nonconformity by Buyer within one (1) year from date such Goods are placed in operation or by no later than eighteen (18) months from date of shipment. In the event of failure by Seller to correct defects in or replace nonconforming Goods promptly, Buyer, after reasonable notice to Seller, may make such corrections or replace such Goods at Seller’s sole cost, risk, and expense.
2. QUANTITY: Goods shipped in excess of quantity designated in the order may be returned at Seller’s expense and risk of loss.
3. PRICE: The prices for the Goods are Seller’s lowest prices currently in effect. Should any lower price or better terms be quoted to any of Seller’s other customers prior to completion of this order. Seller will apply them to the order provided it is legal. The prices for the Goods include all federal, state and local taxes from which Seller cannot obtain exemption.
4. DELIVERY: Time is of the essence hereof and if any Goods are not delivered within the time specified in this order or within a reasonable time if no time is so specified, Buyer may either (i) refuse to accept such Goods and terminate the purchase order, or (ii) cause Seller to ship the Goods by the most expeditious means of transportation whereupon any additional transportation charges in excess of those which would apply for the usual means of transportation shall be for the account of Seller. Seller shall retain the risk of loss of such Goods until delivery to Buyer at the location specified in the purchase order.  Unless specifically instructed (in writing) to the contrary, Seller shall ship the Goods via UPS (United Parcel Service) by the method specified in the purchase order and bill carriage costs directly to Buyer’s UPS account. In the event that Buyer instructs in writing that Seller prepay and invoice the carriage costs, the invoice shall include a verified copy of the freight bill(s). Failure to follow shipping and billing instructions thereof shall result in Seller’s forfeiture of reimbursement for such costs.
5. INVOICES: Invoices shall be submitted via email (preferred) or fax. Unless otherwise instructed, invoices shall (i) be rendered separately for each delivery, (ii) cover no more than one order, and (iii) be rendered with purchase order number noted thereon. Incorrect or incorrectly-submitted invoices will be returned or ignored without forfeiting Buyer’s right to take any discount. Payment term begins on the date of receipt by Buyer of Seller’s proper, correct and complete invoice.
6. PATENTS: Seller warrants and guarantees that the goods provided hereunder do not infringe on any valid patent owned or controlled by any other corporation, firm or person, and Seller guarantees Buyer and agrees to hold Buyer free and harmless from any and all losses of profit, damages, or both, by reason of purchasing the Goods covered hereby. Seller also guarantees to defend at Seller’s expense any and all claims, suits or actions and to any and all judgments rendered against Buyer arising out of or incident to alleged infringement of patents and/or patent rights by the whole, or any portion of the Goods herein described, and to reimburse Buyer for all expenses Buyer incurs in defending or assisting Seller’s defense against the alleged infringement. Where payment is made for experimental, development or research work to be performed by Buyer, all information designs and items developed by Seller shall be the property of Buyer. Seller shall disclose and assign to Buyer all inventions resulting from Seller’s work on this order.
7. PERSONNEL: In the event that any Goods as ordered hereunder require, in connection with the installation or performance thereof, the service of any person connected with or employed by Seller, and Seller agrees to furnish same, either with or without charge, such person performed such services shall not be deemed to be the agent or employee of Buyer, and Seller assumes full responsibility of such persons acts and omissions and exclusive liability for any payroll taxes or contributions imposed by an federal, state or local law. Furthermore, Seller shall indemnify, defend and hold Buyer harmless from any and all claims for personal injury or property damages and expenses incurred by Buyer as a result thereof including, but not limited to attorney’s fees and court costs suffered or asserted by any such persons arising out of connection with the services rendered hereunder by or on behalf of Seller regardless of cause including the negligence in whole or part of Buyer.
8. INSURANCE: If this order provides for work to be performed by Seller on property owned or controlled by Buyer, or on property of others designated by Buyer, Seller shall indemnify said other to the extent as Buyer herein above and insure each of its employees engaged upon the work the compensation provided for or by, and shall strictly comply with each and every statute applicable thereto with respect to Workers’ Compensation and Employers’ Liability Insurance and shall procure and maintain, at the sole cost and expense of Seller, until final acceptance of the Goods by Buyer, public liability insurance from a reputable and financially responsible insurance company, properly safeguarding Buyer against liability for injuries to persons, including injuries resulting in death in amounts acceptable to Buyer, and shall furnish to Buyer written certifications from insurance carriers establishing that said insurance coverages have been procured and are being properly maintained, and that the premiums thereon are paid, and specifying the names of the insured and the respective policy number and expiration dates. All such insurance policies shall waive right of subrogation against Buyer no less than five (5) days prior to the effective date of such cancellation.
9. FORCE MAJEURE: Neither party hereto shall be liable to the other for default or delay in performing its obligations hereunder if caused by fire, strike, riot, war, acts of God, delay of carriers, governmental order or regulation, complete or partial shutdown of plant by reason of inability to obtain sufficient raw materials or power, and/or other similar or different occurrence beyond the reasonable control of the party claiming force majeure. The party claiming force majeure shall give notice to the other party within five (5) days of becoming aware of such force majeure situation. Anything to the contrary herein notwithstanding, Buyer shall have the right to terminate this order without liability of any kind of nature, in the event a force majeure situation exists for a period of ten (10) days.
10. DRAWINGS, ETC.: All drawings, blueprints, dies, patterns, tools, printing plates, etc., prepared or constructed by Seller and paid for by Buyer shall be the sole property of Buyer, and upon completion of deliveries hereunder, or upon termination of this order by performance or otherwise shall be delivered to Buyer.
11. COMPLIANCE WITH THE LAW: Seller warrants that it is an Equal Opportunity Employer and complies with all applicable federal, state and local laws, regulations, and orders now in effect or which may become effective during the period of this contract.
12. ASSIGNMENT: This order may not be assigned in whole or in part by Seller without the prior written consent of Buyer. Buyer shall have the right to assign this order in whole or in part at its sole discretion which assignment shall be binding upon Seller. Buyer’s client or customer shall be a third party beneficiary of any and all rights and benefits available to Buyer hereunder including, but not limited to those enumerated in Paragraphs 1, 4, 6,7,8,20,22, and 23 herein.
13. NON-WAIVER: No waiver by either party or any breach of any of the terms of this order to be performed by the other party shall be construed as a waiver of any subsequent breach whether of the same or any other item or provision of this order.
14. REMEDIES: The rights and remedies of Buyer set forth in this order are not exclusive and are in addition to other rights and remedies available to Buyer at law or in equity.
15. GOVERNING LAW: The validity, interpretation, and performance of this order with respect to the Goods shall be governed by California law. Any disputes arising out of this order shall be arbitrated and settled in Ventura County.
16. FEDERAL STANDARDS: All listed materials or machinery on this order shall have been manufactured in compliance with Federal Standards.
17. RIGHT TO AUDIT: Buyer shall have the right to audit any of Seller’s records relating to the Goods provided hereunder to or on behalf of Buyer at any time within the thirty-six (36) months following the delivery of the Goods to the Buyer, provided, however, Seller shall have the right to exclude trade secrets, formulas, or processes from inspection. Neither Seller, its officers, employees, nor its subcontractors shall pay any commissions, fees, rebates or other remunerations or gratuities to any employee or officer or Buyer.
18. SETOFF: Any amounts which are due or may become due hereunder to Seller shall be subject to setoff or deduction by Buyer against any amounts which are due or may become due Buyer from Seller under this or any other agreement between Buyer and Seller.
19. INDEMNITY: Seller shall defend, indemnify and hold harmless Buyer against all damages, claims or liabilities and expenses (including but not limited to court costs and attorney’s fees) arising out of or resulting in any way from any defect in the Goods subject hereto, or from any act or omission of Seller, its agents, employees or subcontractors. This indemnity shall be in addition to the warranty obligations of Seller.
20. LIENS: Seller shall promptly pay any and all amounts owing by it for the Goods provided hereunder so that no lien shall ever attach, or be permitted to attach to Buyer’s property, whether real or personal, and Seller hereby indemnifies Buyer for any and all such claims and liens. Seller shall not file nor shall allow any lien to be filed against Buyer’s property under any circumstances whatsoever.
21. LIMITATION OF LIABILITY: In no event shall Buyer be liable for anticipated profits or for incidental or consequential damages or penalties. Buyer’s liability on any claim of any kind or any loss or damage arising out of or in connection with or resulting from this agreement or from the performance or breach thereof shall in no case exceed the price allocable to the Good or unit thereof which gives rise to the claim and Seller specifically waives any other remedy at law or in equity including but not limited to any lien rights whatsoever.
22. MISCELLANEOUS: Any performance whatsoever by Seller pursuant to or in reliance of this order constitutes an acceptance hereof and is strictly conditioned upon the terms and conditions of this order. Any proposal for additional or different terms or any attempt by Seller to vary in any degree from the terms and conditions hereof shall be null and void. In the event of any and all conflicts between the terms and conditions of this order or any other instrument shall be resolved in favor of the terms and conditions contained herein notwithstanding any statements to the contrary on the conflicting instrument. This order constitutes the entire agreement between the parties hereto pertaining to the subject matter thereof and there are no oral understandings, representations or warranties affecting it. This order shall not be amended except in writing making specific reference to this order and signed by authorized representatives of the parties hereto.
23. INSTRUCTIONS AND CONDITIONS: This order must be acknowledged promptly, advising when shipment will be made. Seller’s failure to so acknowledge this order shall not affect the acceptance of this order or the term and conditions contained herein. Buyer reserves the right to cancel all or any part of this order without liability whatsoever in the event of Seller’s failure to make timely shipment. No materials, equipment or machinery on this order may be substituted without the prior written consent of Buyer. All shipments must be prepaid unless otherwise instructed in writing by Buyer. If specified routing is not shown, shipment shall be by the best available route/means servicing Buyer’s interest.
24. LAWS: All disputes arising from the Contract will be resolved amicably between both parties. If a dispute cannot be so resolved, the dispute will be submitted to Arbitration according to the procedures and rules of the American Arbitration Association. The award of the arbitrator(s) shall be final and binding on both parties. Each party shall bear its own expenses with respect to any arbitration and compensation and expenses of the arbitration shall be born in such manner as may be specified in the decision of the arbitrators.