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Terms and Conditions of Sale and Purchase
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Terms & Conditions of Sale
Terms and Conditions of Sale, Rev B 31-July-2009
YELLOW SPRINGS INSTRUMENT CO., INC., an Ohio corporation, is referred to as “Seller,” and the person or company purchasing as indicated herein is referred to as “Buyer.” All materials, goods or work described herein, regardless of type, are referred to as “Products.”
INSTALLATION; PRICE ADJUSTMENTS; PAYMENT
Installation of the Products shall be Buyer’s responsibility, unless otherwise specified by Seller. The prices stated herein do not include any charges for installation or any sales, use, or other taxes unless so stated specifically. Such taxes will be added to invoice prices in those instances in which Seller is required to collect them from Buyer; provided, however, that if Seller does not collect any such taxes and is later asked by or required to pay such to any taxing authority, Buyer will make such payment to Seller or, if requested by Seller, directly to such taxing authority. At Seller’s option, prices may be adjusted to reflect any increase in the costs of Seller resulting from state, federal or local legislation or any change in the rate charge or classification of any carrier. Unless otherwise specified by Seller, all prices are F.O.B. Seller’s plant and payment terms are net 30 days from date of invoice. Invoices unpaid and past due will be subject to a service charge on the unpaid balance at an interest rate equal to the lesser of eighteen percent (18%) per annum or the maximum allowable interest rate under applicable law, and Buyer shall be responsible and liable for all expenses incurred by Seller in collection, including reasonable attorneys’ fees.
SHIPMENT; DELIVERY; RISK OF LOSS
Title to and risk of loss of, the Products shall pass to Buyer as soon as the Products are delivered by seller to the carrier. Each shipment date is approximate, and Seller shall not be responsible for any damages of any kind resulting from any delay in shipment or delivery of any Products. No determent of shipment at Buyers request beyond the shipment date indicated will be made except upon written notice to Seller at least 30 days in advance of such shipment date and on terms that will indemnity Seller against all loss and additional expense, including, but not limited to demurrage, handling, storage and insurance charges, and on the condition that Buyer immediately pay Seller the following as they relate to such shipment: (i) all expenses already incurred, (ii) the value of parts completed and ready for shipment, (iii) profit on work in process, and (iv) any amounts which Seller is legally committed to pay to third parties.
The only warranty given in respect of any Product is the express written Warranty provided by Seller and included with the Product. SELLER MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, WHETHER OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE OR OTHERWISE, ON THE PRODUCTS, OR ON ANY PARTS OR LABOR FURNISHED DURING THE SALE, DELIVERY, INSTALLATION, OR SERVICING OF THE PRODUCTS.
CLAIMS; COMMENCEMENT OF ACTIONS
Buyer shall promptly inspect all Products upon delivery. No claims for shortages will be allowed unless such shortages are reported to Seller within seven (7) days after delivery. No other claims against Seller relating to any Products will be allowed unless asserted in writing within thirty (30) days after delivery of such Product. Any lawsuit or other action by Buyer based upon breach of this contract or upon any other claim arising out of this sale must be commenced within one year from the date of the tender of delivery by Seller.
LIMITATION OF LIABILITY
IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR AS THE RESULT OF THE SALE, DELIVERY, NON-DELIVERY, INSTALLATION, SERVICING, USE OR LOSS OF USE OF THE PRODUCTS OR ANY PART THEREOF, OR FOR ANY CHARGES OR EXPENSES OF ANY NATURE INCURRED WITHOUT SELLER’S WRITTEN CONSENT, EVEN THOUGH SELLER HAS BEEN NEGLIGENT. IN NO EVENT SHALL SELLER’S LIABILITY UNDER ANY CLAIM MADE BY BUYER EXCEED THE PURCHASE PRICE OF THE PRODUCTS IN RESPECT OF WHICH DAMAGES ARE CLAIMED.
Seller shall not be liable for any default or delay in performance if caused, directly or indirectly, by an act of God; war; force of arms; fire; the elements; riot; labor dispute; picketing or other labor controversy; sabotage; civil commotion; accident; any government action; prohibition or regulation; delay in transportation facilities; shortage or breakdown of or inability to obtain or non-arrival of any labor, material or equipment used in the manufacture of the Products; failure of any party to perform any contract with Seller relative to the production of the Products; or from any cause whatsoever beyond Seller’s reasonable control, whether or not such cause be similar or dissimilar to those enumerated.
LOSS TO BUYER’S PROPERTY; PATENT, TRADEMARK, OR COPYRIGHT INFRINGEMENT, ETC.
Seller shall not be liable for, and shall have no duty to provide insurance against, any damage or loss to any goods or materials of Buyer which are used by Seller in connection with this order. Where any Product is manufactured from patterns, plans, drawing, designs, or specifications furnished by Buyer. Buyer shall indemnify Seller against and save Seller harmless from all loss, damage and expense arising out of any suit or claim against Seller for infringement of any patent, trademark, copyright or other intellectual property right because of Seller’s manufacture of such Product or because of the use or sale of such Product by any person. Upon Seller's request, Buyer shall appear in and assume the defense of any such litigation.
SELLER'S SPECIFICATIONS, TECHNICAL DATA, ETC
Any specifications, drawings, plans, notes, instructions, engineering notices or technical data of Seller furnished to Buyer shall be deemed to be incorporated herein by reference the same as if fully set forth. Seller shall at all times retain title to all such documents, and Buyer shall not disclose such to any party other than Seller or a party duly authorized by Seller. Upon Seller’s request, Buyer shall promptly return to Seller all such documents and copies thereof.
CREDIT; RIGHTS OF SELLER
If Buyer shall fail to pay any indebtedness to Seller promptly when due or if Buyer’s performance or financial condition shall at any time seem to Seller inadequate to warrant a particular or further extension of credit, Seller may, if it so elects, with or without demand for any payment past due and without prejudice to any other rights or remedies available to it, take some or all of the following actions:If Buyer fails in any way to fulfill any of its obligations hereunder, Seller may defer further shipments until such default is corrected or cancel this order and recover damages. Seller shall have a security interest in, and lien upon, any property of Buyer in Seller's possession as security for the payment of any amounts owing to Sell by Buyer. For orders requiring payment by letter of credit, estimated shipping time stated on reverse side is after receipt of an irrevocable letter of credit denominated in U.S. dollars, confirmed by a prime bank located in the USA (preferably US Bank NA) with a shipping date validity of at least ninety (90) days commencing from the date of receipt of the letter of credit by Seller. All banking charges, including those in the U.S., are for Buyer’s account. Any extension of the offer validity date stated on reverse is at Seller’s option. Please remit letter of credit to: U.S. Bank National Association 721 Locust Street, SL-MO-L2IL; St Louis, Missouri 63101 USA. Telex 192179 S.W.I.F.T. USBKUS44 STL and with credit to Seller’s account 8506321.
Require cash payment in advance or on delivery or on presentation of a sight draft attached to a bill of lading or such other security or proof of responsibility as is satisfactory to Seller, as a condition to making further shipments of Products to Buyer or any of its customers (irrespective of whether such shipments are in fulfillment of any order already received and accepted by Seller).
Fill orders previously received by Buyer by shipping Products direct to Buyer's customers and invoicing said customers as agent for Buyer with the credit risk to be borne by Buyer, and hold the proceeds received from such customers until Buyer is current with Seller.
Cancel any unfilled and unshipped order or portion thereof, by Buyer for Products.
Apply any outstanding credits or loans due Buyer against any indebtedness owing by Buyer to Seller, whether or not due or past due.
After acceptance by Seller, an order shall not be subject to cancellation by Buyer except with Seller's consent and upon terms that will indemnify Seller against all direct, incidental and consequential loss or damage including, but not limited to, the losses, damages and expenses described in Section 3 above.
LIMITATION OF ASSIGNMENT
Neither party may assign any of its rights or obligations hereunder without the prior written consent of the other, except that Seller shall have the right to assign them to any company with which it is affiliated or to any corporation into which it shall be merged, with which it shall be consolidated, or by which it, or all or substantially all of its assets, shall be acquired.
If the Products are to exported, this order is subject to Seller's ability to obtain export licenses and other necessary papers within a reasonable period. Buyer will furnish all consular and custom declarations and will accept and bear all responsibility for penalties resulting from errors or omissions thereon. Buyer shall not reexport the Products or any goods or items which incorporated the Products if the reexport would violate United States export laws.
FLSA, OSHA COMPLIANCE
Seller certifies that any Products which are manufactured by Seller will be produced in compliance with all applicable requirements of Section 12 of the Fair Labor Standards Act, as amended, of Sections 204 (c), (d), 301-305, 401-403 and 501 of the Fair Labor Standards Act Amendments of 1966, and of regulations and orders of the United States Department of Labor issued under Section 501 thereof, and of Section 5 (a) of the Occupational Safety and Health Act of 1970, as applicable to the manufacture of such Products.
EQUAL OPPORTUNITY CLAUSE
This clause applies only in the event that the Products are to be used in whole or in part for the performance of government contracts and where the dollar value of said Products exceeds, or may in any one year exceed $10,000. In connection with the performance of work under this contract, the contractor (subcontractor) agrees not to discriminate against any employee or applicant for employment because of race, color, religion, sex or national origin. The aforesaid provision shall include, but not be limited to, the following: employment upgrading, demotion or transfer; recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor (subcontractor) agrees to post hereafter in conspicuous places, available for employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause.The provisions of the Equal Opportunity Clause, as promulgated by Executive Order 11246 dated September 24, 1965, as amended, are incorporated herein by reference.
OTHER RIGHTS OR REMEDIES.
Except as otherwise provided herein, any rights or remedies granted hereunder to either party shall be in addition to, and not in lieu of, any other rights or remedies of such party at law or in equity.
This document contains the entire agreement between Seller and Buyer and constitutes the final, complete and exclusive expression of the terms of the agreement, all prior or contemporaneous written or oral communications, agreements, forms or negotiations with respect to the subject matter hereof being merged herein. By way of illustration and not limitation, Buyer's order shall be deemed to incorporate, without exception, all terms and conditions hereof notwithstanding any order form of Buyer containing additional or contrary terms or conditions, unless Buyer shall have expressly advised Seller to the contrary in a writing apart from such order form, and no acknowledgment by Seller of an order by Buyer shall be deemed to be an acceptance by Seller of any such additional or contrary terms or condition. Any acknowledgment by Seller of any order by Buyer is expressly conditional on Buyer assenting to, or otherwise being bound by, any terms or conditions hereof which are in addition or contrary to the terms and conditions of Buyer's order form. No additional or contrary terms or conditions or modifications may be made to these terms and conditions except by a written instrument signed by one of Seller's officers. Stenographic and clerical errors are subject to correction by Seller.
In the event that any provision hereof shall violate any applicable statute, ordinance or rule of law, such provision shall be ineffective to the extent of such violation without invalidating any other provision hereof.
This document and the sale of all Products shall be governed by and construed in accordance with the laws of the State of Ohio. Whenever there is a conflict of laws, the substantive laws of the State of Ohio shall prevail.
Any quotation of Seller is conditioned on, and shall not become binding upon Seller until, actual receipt by Seller of Buyer's written order, which must be consistent with all terms and conditions stated in Seller's quotation without qualification, within the time period indicated in the quotation at its main office in Yellow Springs, Ohio.
Terms and Conditions of Purchase, Rev C 12-August-2008
YSI Incorporated (including its subsidiaries and affiliates) will be referred to as “Purchaser” and the person or company stated on the front hereof as the Vendor will be referred to as “Vendor”. This order may be used to purchase supplies, machinery, equipment and other goods, and may also be used to contract for services, including maintenance and construction work performed on premises specified by Purchaser. All goods or services covered by this order will be referred to as “Items”.
If a price is stated on the front hereof, the price for the Items shall be the lower of such stated price or, (ii) Vendor’s prevailing market price for such Items. If no price is stated on the front hereof, the price for the Items shall be the lower of (i) the price (if any) last charged or quoted to Purchaser for such Items, or (ii) Vendor’s prevailing market price for such items. As used in this Section, “prevailing market price” shall mean the lowest price at which goods or services the same as or substantially similar to the Items are offered to or sold by Vendor to any customer, under similar circumstances, in quantities similar to those being purchased hereunder, within the period beginning 30 days before the date of this order and ending 30 days after delivery of the Items to Purchaser. Unless otherwise provided in this order, the price includes all applicable federal, state and local taxes and all charges for freight and insurance to deliver the Items to the destination specified by Purchaser. Unless otherwise stated on the front hereof, all Items are for remanufacture or resale and therefore exempt from Ohio sales tax. Vendor is responsible for obtaining any required tax exempt certificate. No additional charges of any kind, such as charges for preparation or cartage, will be paid by Purchaser unless Purchaser agrees in writing.
DELIVERY OR COMPLETION DATE(S)
Vendor shall comply with all shipping instructions on the front hereof. If Purchaser has stated on the front of this order any completion date(s) or date(s) upon which the Items are to be delivered to Purchaser, Purchaser may cancel this order if any such date is not met or if, prior to any such date, Purchaser has reason to demand adequate assurance of due performance and such assurance is not forthcoming within 10 days after the date of Purchaser’s demand. Any Items delivered to Purchaser in advance of any such date are subject to return to Vendor. If a delivery or completion date is not specified on the front of this order, a reasonable time will be allowed. Time is of the essence of this order. If Vendor fails to deliver any Items as of the completion date required hereunder, Purchaser may, in addition to any other rights which Purchaser may have hereunder, require delivery by the fastest method and all charges for any such method shall be prepaid in full by Vendor.
TITLE AND RISK; SHIPMENT
Regardless of the F.O.B. point stated, unless otherwise specifically provided on the face hereof, title and risk of loss, damage or deterioration of the Items shall remain in Vendor until the Items have been delivered to and accepted by Purchaser, or Purchaser’s duly designated agent or consignee, at the location specified on the front hereof. Acceptance of Items by Purchaser occurs on the earlier of (i) payment by Purchaser for such items, (ii) use by Purchaser of such Items, if tangible, or (iii) placement of such Items, if tangible, into Purchaser’s inventory as reflected by Purchaser’s records. Vendor shall be responsible for packing and packaging the Items to withstand transportation hazards and preparing shipments in accordance with Purchaser’s instructions. A packing slip must accompany each shipment. If a shipment is to Purchaser’s consignee or agent, a copy of the packing ship shall be forwarded concurrently to Purchaser. If no packing slip is sent, the count or weight of such shipment reported by Purchaser or its agent or consignee shall be final and binding upon Vendor.
COMPLIANCE WITH LAWS
The Vendor warrants that the items and their production or completion shall not violate, or cause the Purchaser to be in violation of, any federal, state or local laws, regulations or orders. Without limiting the foregoing, Vendor certifies and guarantees that the Items (a) will be produced in compliance with all applicable requirements of the Fair Labor Standards Act, as amended; (b) will conform to all applicable consumer product safety standards under the Federal Consumer Product Safety Act; (c) will not be a misbranded or banned hazardous substance within the meaning of the Federal Hazardous Substances Act; (d) will, if constituting or containing an economic poison as defined in the Federal Insecticide, Fungicide, and Rodenticide Act, be registered pursuant to said Act and comply with all other requirements of Said Act (7 U.S.C.A. 135-135K); (e) will not be a misbranded or adulterated food, drug, device or cosmetic within the meaning of the Federal Food, Drug and Cosmetic Act; or an item prohibited under section 404 or 405 of said Act; (f) will not be an item of wearing apparel or interior furnishing which fails to conform to applicable flammability standards under the Federal Flammable Fabrics Act; (g) will not be in violation of, or cause the Purchaser to be in violation of, the Occupational Safety and Health Act of 1970 and the standards, rules and regulations promulgated thereunder; (h) will not be in violation of, or cause the Purchaser to be in violation of, any C.F.R. provisions concerning minority business enterprises; (i) will not be in violation of, or cause the Purchaser to be in violation of, the provisions of 41 C.F.R. Parts 60-2 and 60-20, concerning affirmative action programs and discrimination guidelines.
Purchaser shall have the right to make reasonable changes (including additions and deletions) from time to time in this order or the Items, including, but not limited to, any change in specification, drawing, design, quantity, packing instruction, destination or delivery schedule. If any such change affects the price of the Items or the time required for Vendor’s performance under this order, Vendor and Purchaser may negotiate an equitable adjustment in the price or delivery schedule or both, provided that all claims for any such adjustment shall be made by Vendor to Purchaser in writing within 30 days after Purchaser makes the change to which the adjustment relates. No adjustment in the terms of this order shall be binding upon Purchaser unless Purchaser agrees thereto in writing. Vendor shall proceed to complete this order during the period that any such potential adjustment is under consideration or discussion. Vendor shall notify Purchaser of any changes to Items, including specification, drawing, design, quantity, packaging, or storage conditions, and these changes must be agreed upon in writing from Purchaser.
Purchaser and, whenever agreed by Purchaser and Purchaser’s customer, Purchaser’s customer, may inspect and test the Items, including any raw materials, components, intermediate assemblies or end products related thereto, during manufacture, construction or preparation at reasonable times, and each of them shall have the right to inspect and test such items at the time of their delivery and/or completion. Despite any such previous inspection or acceptance, if any defect or nonconformity for which Vendor is responsible under the terms of this order is revealed by subsequent inspection, analysis, manufacturing operation, use or otherwise, Purchaser may reject or revoke acceptance of any affected Item within a reasonable time after such defect or nonconformity is discovered. Title to any rejected Item shall remain with, and title to any Item for which Purchaser has revoked acceptance shall revert to, Vendor, and Vendor shall bear all responsibility and risk of loss for such Item(s) as well as any related liabilities including, but not limited to, any liability for disposal. Any such rejected Item or Item for which Purchaser has revoked acceptance will beheld pending Vendor’s instruction and, if Vendor requests, will be returned to Vendor at Vendor’s expense. Failure by Purchaser to inspect and accept or reject any Items neither relieves Vendor of responsibility for such Items which are not in compliance with any requirements under this order, nor imposes any liability on Purchaser therefor. Unless otherwise stated on this order, copies of all inspection records prepared by Vendor related to any Items must be supplied to Purchaser at the time such Items are delivered to Purchaser. Vendor shall be responsible for, and Purchaser may charge back to Vendor, all out-of-pocket inspection costs incurred by Purchaser in inspecting any Items which are rejected or not accepted.
WARRANTY BY VENDOR
Vendor warrants all Items delivered hereunder to be free from defects in material and workmanship, to be of good and merchantable quality, to conform strictly to any specifications, drawings or samples which may have been provided to or furnished by Purchaser and to any other Vendor description, literature or statement relied upon by Purchaser, and to be fit for the particular purposes for which the Items are intended by Purchaser. Vendor will assure that its employees are fully trained and qualified to provide products that meet Purchaser’s product and quality system requirements. Vendor further warrants that it will have good title to the Items, free and clear of all liens and encumbrances, and will transfer such title to Purchaser. All Vendor warranties set forth in this Section or in any other part of this order or which are implied by law shall survive any inspection, delivery, acceptance or payment by Purchaser. Unless otherwise instructed by Purchaser, Vendor shall promptly repair or replace any item which fails to comply with any of the warranties set forth in this section 8. If Vendor fails to take prompt action to correct any such breach of any warranty, Purchaser may repair or replace such Item and Vendor shall be responsible to Purchaser for the cost of any such repair or replacement.
INDEMNIFICATION AND INSURANCE
Vendor shall indemnify and hold harmless and, upon request, defend Purchaser, its agents and employees, and persons claiming through Purchaser, from and against all claims, demands, litigation and proceedings of any kind, whether based upon negligence, breach of express or implied warranty, strict liability or any other theory, and from and against all direct, indirect, special, incidental and consequential damages arising out of or in any way connected with, any accident, occurrence, injury or loss to or of Purchaser or any third party or any property of Purchaser or any third party (which may occur before or after acceptance of any Items by Purchaser) in any way due to or resulting from, or alleged to be due to or resulting from, in whole or in part, the Items, or the design, manner of preparation, manufacture, construction, completion, delivery or non-delivery of the Items by Vendor or any subcontractor or supplier of Vendor or the failure of Vendor or any subcontractor or supplier of Vendor to give adequate warnings in connection with the Items, or any other act or omission of Vendor. Vendor shall, upon request, pay or reimburse Purchaser or any other party entitled to indemnification hereunder for all costs and expenses, including attorney’s fees, incurred by Purchaser or such other party in connection with any such claim, demand, litigation or proceeding. If requested by Purchaser, Vendor shall maintain product liability and completed operations insurance which provides, under the terms of the primary policy or by contractual liability endorsement if necessary, coverage in respect of claims involving bodily injury or property damage arising out of or in connection with the Items. Such insurance shall be in such minimum amounts as Purchaser shall designate and shall, upon Purchaser’s request, declare Purchaser as named insured. Such policies of insurance shall not be cancellable except upon 10 days written notice to Purchaser, and Vendor shall furnish proof of such insurance to Purchaser should Purchaser so request.
Purchaser shall have the option to terminate this order or to delay the delivery or completion of any Items if a modification or discontinuation or any product, or any cause beyond the reasonable control of Purchaser, makes it unreasonable to accept delivery hereunder. Such causes include, but are not limited to, acts of God; war; force of arms; fire; the elements; strikes; picketing or labor disputes; accidents; governmental action or regulation; delay in transportation facilities; and the failure of any party to perform any contract with Purchaser which adversely affects Purchaser’s need for the Items. Such termination or delay shall be without cost to Purchaser to the extent that the Items consist of or incorporate standard stock goods, materials or components which can be reused or resold by Vendor and/or the Items consist of or include services which Vendor has not then yet performed. In all other cases, Vendor shall have the right to reasonable compensation for work reasonably performed and materials reasonably purchased subsequent to the date of this order for the purpose of meeting the requirements of this order up to the date of such termination by Purchaser or, in the case of delay, for reasonable handling and storage charges. All claims for compensation under this Section shall be made by Vendor to Purchaser in writing within 30 days after Purchaser notifies Vendor of the termination or delay, as the case may be. In no event shall Purchaser be liable for any special, indirect, incidental or consequential loss or damage relating to the delay or termination of this order for any reason.
PATENT, COPYRIGHT OR TRADEMARK INFRINGEMENT.
Vendor shall indemnify Purchaser against and defend and hold Purchaser harmless from any and all costs, expenses, liabilities and damages, including attorneys’ fees, which Purchaser may incur in connection with any suit or claim of infringement of any patent, copyright, trademark or trade name by reason of the manufacture, use or sale of the Items. If requested by Purchaser, Vendor shall, at its expense, appear in and assume the defense of any such litigation to which Purchaser has been made a party. In the event that Purchaser can no longer purchase, use or resell any Item without infringing any such intellectual property right belonging to any third party, then, at Vendor’s option and expense, Vendor shall either procure the right to continue to manufacture, use and sell such Item, or modify such Item so that it becomes non-infringing, or, with the prior written approval of Purchaser, repurchase all such Items from Purchaser at the original purchase price plus refund to Purchaser all transportation, installation, removal and other out-of-pocket costs incurred by Purchaser in connection with the purchase from, or return to, Vendor of such Items.
PURCHASER’S SPECIFICATIONS, TECHNICAL DATA, ETC.
Any specifications, drawings, notes, instructions, engineering notices or technical data furnished by Purchaser to Vendor or referred to in this order are incorporated herein by reference the same as if fully set forth. Vendor shall not, without Purchaser’s prior written consent, disclose any such document or any information contained therein or any other information disclosed to Vendor by Purchaser to any party other than those employees of Vendor who require the same for the performance of their duties in connection with this order, or use any such document or information for any purpose other than to execute this order.
Either party shall have the right to cancel this order upon the occurrence of either of the following events: (i) the other party’s insolvency or action indicating insolvency, such as the filing of a petition by or against such party under any bankruptcy law, the appointment of a receiver for such party, such party’s attempt to make a general assignment for the benefit of creditors, or the failure of such party to function as a going concern or to timely pay its obligations when due, or (ii) the other party’s failure to comply with any of its obligations under this order if such failure continues for a period of 10 days after notice thereof is given to such party. Should Purchaser cancel this order as provided in the preceding paragraph, Purchaser may, at its option and without prejudice to any other rights or remedies it may have, take possession of the Items in whatever stage of completion they may be, with or without seeking a writ of replevin or pursuing any other judicial process or remedy. Upon taking possession of the Items, Purchaser may, if the Items are not completed, complete or contract to complete the Items, and Vendor shall be liable for all costs, expenses and damages of any kind which Purchaser incurs or suffers in connection with such completion.
LIMITATION ON ASSIGNMENT
Neither party may assign or subcontract this order or any right hereunder without the prior written consent of the other, except that Purchaser may assign it to any company with which it is affiliated, or to any corporation into which it shall be merged, with which it shall be consolidated, or by which it, or all or substantially all of its assets, shall be acquired.
Vendor shall obtain and pay for any licenses, permits, or inspections by public bodies required in connection with the manufacture, completion, or delivery of the Items.
WORK ON THE PREMISES
If work is to be performed hereunder on any premises specified by Purchaser, Vendor either has or will examine the premises and any specification or other documents furnished in connection with the Items and satisfy itself as to the condition of the premises and site. No allowance shall be made for Vendor in respect of any error by Vendor as to any of the foregoing. Vendor shall at all times keep the premises free from accumulations of waste material or rubbish. At the completion of the Items, Vendor shall leave the premises and the Items broom-clean. Risk of loss or damage to Vendor’s materials or equipment while on such premises shall remain in Vendor, and Purchaser shall have no responsibility or liability to Vendor or anyone claiming through Vendor in respect of any loss or damage thereto, despite the fact that Purchaser provides storage space on such premises. Vendor shall abide by all plant safety regulations of Purchaser in performing any work hereunder on such premises. Except to the extent due solely and directly to Purchaser’s negligence, Vendor shall indemnify and hold harmless Purchaser against all losses, damages, claims and actions which may result from any act or omission of Vendor or any of its agents, employees, subcontractors or anyone else acting under Vendor’s supervision and control while working on such premises. Vendor shall maintain such public liability, property damage and employees’ liability and compensation insurance as will protect Purchaser from such risks and from any claims under any applicable workers’ compensation or occupational disease law or regulation.
Vendor hereby waives its rights to any mechanic’s lien or other such lien under any applicable statutes or otherwise for work done or materials furnished in connection with the Items. As a condition to payment, Vendor shall, upon Purchaser’s request, furnish Purchaser evidence that all subcontractors or material men used by Vendor in connection with completion of the Items have been paid in full and have released all mechanic’s liens or other such liens held by such subcontractors or material men against the Items or the affected premises. Upon Purchaser’s request, Vendor shall, at its expense, promptly discharge any mechanic’s liens or other such liens held by Vendor or its subcontractors or material men against the Items or the affected premises or obtain a bond to satisfy such liens. In any event, Vendor shall indemnify Purchaser against and hold Purchaser harmless from any and all costs, expenses, liabilities and damages, including attorney’s fees, which Purchaser may incur in connection with or as a result of the existence or discharge of any such liens.
All tooling, equipment, materials, drawings and other tangible data or materials of any kind furnished by Purchaser to Vendor or specifically paid for by Purchaser shall be and remain Purchaser’s property. Vendor shall prominently mark or sticker all such property as the property of Purchaser, and Vendor shall return such property to Purchaser in accordance with Purchaser’s request and directions.
Vendor shall notify Purchaser whenever it is aware, or has reason to be aware, of any harmful ingredients or defects contained within any of the Items. Whenever required by applicable law or regulation, Vendor shall provide Purchaser with material safety data sheets covering the Items. Whenever Purchaser requests or whenever normally provided by Vendor, Vendor shall provide certificates of analysis covering the Items.
PURCHASER’S RIGHTS OR REMEDIES
Any rights or remedies granted to Purchaser in any part of this order shall not be exclusive of, but shall be in addition to, any other rights or remedies granted in any other part of this order and any other rights or remedies that Purchaser may have under any applicable law, domestic or foreign.
This document, together with any information or documents incorporated herein by reference, shall constitute the entire agreement between Purchaser and Vendor and the complete and exclusive expression of the terms of the agreement, all prior or contemporaneous written or oral agreements or discussions with respect to the subject matter hereof being merged herein. Purchaser expressly limits any acceptance by Vendor to the terms of this order, and terms which are additional or contrary to the terms set forth herein may only be proposed by Vendor in a writing apart from Vendor’s standard quotation, acknowledgement or other similar form. Purchaser shall not be deemed to assent to any additional or contrary term proposed by Vendor unless Purchaser expressly agrees in writing thereto. If Vendor has heretofore made Purchaser an offer with respect to the Items, this order shall not operate as an acceptance of Vendor’s offer, but rather shall be deemed to be a counteroffer.
In the event that any provision hereof shall violate any applicable statute, ordinance or rule of law, such provision shall be ineffective to the extent of such violation without invalidating any other provision hereof.
This document and the purchase of any Items hereunder shall be governed by and construed in accordance with the laws of the State of Ohio as applicable to agreements made and wholly performed therein.
This clause applies only in the event that the goods ordered herein are to be used in whole or in part for the performance of government contracts and where the dollar value of said goods exceeds, or may in any one year exceed, $10,000. During the performance of this contract, the contractor (Vendor) agrees as follows: The contractor (Vendor) will not discriminate against any employee or applicant for employment because of race, color, religion, sect or national origin. The contractor (Vendor) will take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, color, religion, sex or national origin. Such action shall include, but not be limited to, the following: hiring, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor (Vendor) shall post inconspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause. The provisions of the Equal Opportunity clause, as promulgated by Executive Order 11246 dated September 24, 1965, as amended, and the provisions of 41 C.F.R. and 60-1.1 through 60-1.47, as amended, are incorporated herein by reference.
EMPLOYMENT OF VETERANS
This clause applies only in the event that the goods ordered herein are to be used in whole or in part for the performance of government contracts and where the dollar value of said goods exceeds, or may in any one year exceed, $10,000. The contractor (Vendor) will not discriminate against any employee or applicant for employment because he or she is a disabled veteran or veteran of the Vietnam Era in regard to any position for which the employee or applicant for employment is qualified. The contractor (Vendor) agrees to take affirmative action to employ, advance in employment and otherwise treat qualified disabled veterans and veterans of the Vietnam Era without discrimination based on their disability or veterans status in all employment practices such as the following: hiring, upgrading, demotion or transfer, recruitment, advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. The provisions of the Disabled Veterans of the Vietnam Era clause, as set forth in 41 C.F.R. and 60-250, as amended are incorporated herein by reference.
EMPLOYMENT OF HANDICAPPED
This clause applies only in the event that the goods ordered herein are to be used in whole or in part for the performance of government contracts and where the dollar value of said goods exceeds $2,500. The contractor (Vendor) will not discriminate against any employee or applicant for employment because of any physical or mental handicap in regard to any position for which the employee or applicant for employment is qualified. Contractor (Vendor) agrees to take affirmative action to employ, advance in employment and otherwise treat qualified handicapped individuals without discrimination based upon their physical or mental handicap in all employment practices such as the following: hiring, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, including apprenticeship. The provisions of the Rehabilitation Act of 1973 and the regulations set forth in 20 C.F.R. and 741, as amended, are incorporated herein by reference.