Terms and Conditions of Purchase
- Acceptance. Acceptance by Seller of BR JOHNSON’s purchase order shall be subject to the terms and conditions stated herein, which terms and conditions shall supersede any and all terms and conditions that might appear on Seller’s quotations or acknowledgements. Acceptance by Seller of an order submitted by BR JOHNSON is expressly conditioned on Seller’s consent to all of the terms and conditions stated herein. The terms and conditions set forth herein are the complete and exclusive statement of the terms and conditions of the agreement between Seller and BR JOHNSON with respect to the purchase/sale of the goods and supersede any and all prior and contemporaneous negotiations and agreements of the parties, whether written or oral. No amendment or modification of the terms and conditions stated herein (whether such modification is in conflict with, inconsistent with or in addition to the terms and conditions stated herein) will be binding on BR JOHNSON unless specifically agreed to in a writing signed by BR JOHNSON. No order submitted by BR JOHNSON may be cancelled or changed by Seller unless agreed to in a writing signed by BR JOHNSON. When the goods being sold hereunder are to be used in conjunction with any product of BR JOHNSON, Seller shall notify BR JOHNSON as far in advance as commercially reasonable when changes are planned to Seller’s standard product. If Seller shall, instead of making written acceptance of this order, ship any goods by or furnish any services in response to this order, BR JOHNSON may, in its sole election, either reject the tendered goods and/or service or treat such action as constituting acceptance and assent to the terms and conditions hereof.
- Price. In the event that subsequent to the date of, but prior to the date of Seller’s fulfillment of, this order Seller shall reduce the price of the goods and/or services of the kind or quality of the goods and/or services that are the subject of this order, such price reduction shall apply to this order. If no price is specified herein, the price shall be not higher than the price that Seller last previously quoted or charged BR JOHNSON for goods and/or services of like kind or quality. If Seller has not previously quoted or charged BR JOHNSON prices as to any goods and/or services ordered hereby, the price shall be the lowest price charged by Seller to any buyer for goods and/or services of like kind and quality from the date hereof until date of delivery.
- Warranties. Seller warrants that all goods and/or services provided by it: (i) shall be of good quality and workmanship and free from defects, latent or patent; (ii) shall conform to all specifications, drawings, descriptions and/or samples furnished, specified or adopted by BR JOHNSON; (iii) shall be merchantable and suitable and sufficient for their intended purposes and/or use; and (iv) shall be free of any claim of any third party, whether or not Seller is a merchant of such goods and/or services. BR JOHNSON shall have thirty (30) days from the receipt of the goods to inspect same. BR JOHNSON may reject any defective or non-conforming goods. In such event, at BR JOHNSON’s option: (i) Seller shall, at Seller’s cost, promptly repair or replace same; (ii) BR JOHNSON may return same to Seller, at Seller’s cost, for a refund or credit for amounts previously paid by BR JOHNSON; or (iii) BR JOHNSON may correct or replace same and Seller shall be responsible for the cost thereof. NONE OF THE REMEDIES OR DAMAGES AVAILABLE TO BR JOHNSON FOR THE BREACH OF ANY OF THE FOREGOING WARRANTIES MAY BE LIMITED EXCEPT TO THE EXTENT AND IN THE MANNER AGREED UPON BY BR JOHNSON IN A SEPARATE AGREEMENT SPECIFICALLY DESIGNATING SUCH LIMITATION AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF BR JOHNSON. BR JOHNSON’s inspection and/or acceptance of and/or payment for goods and/or services shall not constitute a waiver by it of any warranties. BR JOHNSON’s approval of any sample or acceptance of any goods shall not relieve Seller from responsibility to deliver goods and to perform services conforming to specifications, drawings and description. Seller warrants that: (i) neither the goods furnished hereunder nor the sale or use thereof will infringe any United States or Foreign patent, trademark, copyright, trade secretor other proprietary or similar rights; (ii) Seller will, at its own expense, defend any suit that may arise in respect thereto; and (iii) Seller will indemnify and hold BR JOHNSON harmless from all loss and expense incurred on account of any alleged or actual infringement. BR JOHNSON shall promptly notify Seller of any such infringement claim made against it.
- Packing, Shipment and Delivery. Unless otherwise specifically provided herein, delivery shall be made to BR JOHNSON’s place of business designated on the face hereof. Risk of loss and/or damage shall remain with Seller until the goods are physically delivered to such place of delivery. Seller shall suitably pack, mark and ship all goods to prevent damage and to conform to requirements of common carriers. No charge shall be made for packing, boxing, drayage or storage without BR JOHNSON’s specific written authorization. Seller shall mark each package with BR JOHNSON’s order number and address and shall place inside each package a memorandum showing shipper’s name, the contents thereof and BR JOHNSON’s order number. Delivery shall be made in the quantities and at the time specified in BR JOHNSON’s order or instructions, BR JOHNSON expressly reserving the right to change delivery schedules. If this order requires or authorizes the delivery of goods in separate lots and any goods do not conform hereto, BR JOHNSON may, at its sole election, reject any or all goods affected, the entire lot and any undelivered lot. Delivery dates specified by BR JOHNSON are of the essence. Deliveries not made on the date or dates specified may be cancelled and/or rejected by BR JOHNSON. Seller shall reimburse BR JOHNSON for all expenses incurred by BR JOHNSON as a result of improper packing, marking or routing. Unless otherwise provided, BR JOHNSON will not accept COD shipment. Whenever Seller shall have in its possession any property of BR JOHNSON, Seller shall be deemed an insurer thereof and responsible for its safe return to BR JOHNSON.
- Invoicing. Seller shall mail invoices in duplicate, together with the bill of lading, on the date of shipment of goods. Unless written notice to the contrary is given to BR JOHNSON by Seller prior to shipment, all invoices for goods shipped shall be tendered by and be payable to Seller. If prepaid transportation charges are for BR JOHNSON’s account, the invoice must be supported by the prepaid receipted transportation bill. Payment shall be made within sixty (60) days from the date of receipt by BR JOHNSON of the goods/services or from the date invoices are received by BR JOHNSON, whichever is later.
- Compliance with Law. Seller warrants that its performance hereunder shall comply with all applicable federal, state and local laws, rules, regulations, administrative and executive orders and pertinent governmental procurement regulations. Seller agrees to indemnify BR JOHNSON for any loss sustained by reason of Seller’s failure to comply with any applicable federal, state and local laws, rules, regulations, administrative and executive orders.
- Disclosure of Information. Any unpatented knowledge or information concerning Seller’s products, methods or manufacturing processes that may be disclosed to BR JOHNSON shall, unless BR JOHNSON otherwise specifically agrees in writing, have been disclosed in consideration for this order, and Seller shall not assert any claim against BR JOHNSON as the result of BR JOHNSON’s use thereof. All technical information in the nature of drawings, patterns, specifications, samples or other goods furnished by BR JOHNSON to Seller shall be considered and kept strictly confidential by Seller and shall not be used for any purpose other than the performance of work for BR JOHNSON. Unless otherwise agreed in writing, all dies, molds, patterns, jigs, fixtures and any other property furnished to Seller by BR JOHNSON, or paid for by BR JOHNSON, shall remain the property of BR JOHNSON, and shall be used only in filling orders from BR JOHNSON. All such materials shall be promptly returned to BR JOHNSON at BR JOHNSON’s request upon termination of the work for which they were furnished.
- Changes. BR JOHNSON reserves the right at any time prior to shipment to make changes as to: (i) specifications of any goods; (ii) methods of shipment or packing; (iii) place of delivery; (iv) time of delivery, and (v) reduce, increase or cancel the quantities ordered. If any such change causes an increase or decrease in the cost of or the time required for performance of this order, an equitable adjustment shall be made in the contract price or delivery schedule or both. Any claim by Seller for adjustment under this clause shall be deemed waived unless asserted in writing within ten (10) days from receipt by Seller of the change.
- Cancellation and Remedies. BR JOHNSON may cancel this order in whole or in part if: (i) the goods and/or services furnished do not conform to the warranties herein; (ii) Seller fails to make deliveries as provided herein; (iii) Seller breaches any other term, condition or covenant herein; (iv) any representation by Seller proves to have been false when made; or (v) Seller is insolvent, a petition is filed for reorganization of Seller or for its adjudication as a bankrupt, Seller makes an assignment for benefit of creditors, a receiver or trustee is appointed for any of Seller’s assets, or any other type of insolvency proceeding or formal or informal proceeding for the dissolution, liquidation, or winding up of affairs of, Seller, is commenced. In the event of any such cancellation, BR JOHNSON shall have the right, in addition to its other rights; (i) to refuse to accept delivery of goods and/or performance of services; (ii) to return to Seller any goods already delivered and to recover all payments made therefor and for expenses incident thereto; (iii) to recover any advance payments to Seller for undelivered or returned goods and/or services not fully performed; and (iv) to purchase elsewhere and charge Seller with any additional cost resulting therefrom. BR JOHNSON’s right to return goods is not affected by any assignment by Seller of moneys due or to become due hereunder. In addition, BR JOHNSON may cancel this order in whole or in part at any time for BR JOHNSON’s convenience. Upon any cancellation by BR JOHNSON, BR JOHNSON shall be charged only: (i) the allocable part of price for conforming goods delivered and services performed; and (ii) Seller’s actual cost for undelivered goods and for services not performed (including sums payable to settle obligations reasonably incurred in reliance on this order), such total charge to be in no event greater than the price herein. Upon such payment, all goods, whether in process or finished, and raw materials shall become BR JOHNSON’s property and shall be delivered to BR JOHNSON as herein provided.
- Indemnification. To the fullest extent permitted by law, Seller agrees to indemnify, defend and hold harmless BR JOHNSON and its affiliated companies, their respective customers, directors, officers, employees and agents, from and against any losses, liabilities, costs, expenses, suits, actions, claims and all other obligations and proceedings whatsoever, including without limitation, reasonable attorney’s fees and any other cost of litigation, arising out of: (i) any act or omission to act by Seller; or (ii) any breach by Seller of any representations, warranties or covenants herein. Seller will maintain in force adequate insurance to cover any loss or damage caused by negligence of the Seller or its subcontractors that results in injuries to persons or damage to property, including damage to the merchandise being delivered.
- Nonassignability. Seller may not assign any right or interest in this order and may not delegate performance of any of its obligations hereunder without BR JOHNSON’s prior written consent. Any attempted assignment or delegation by Seller without such consent shall be void.
- Taxes and Other Charges. Except as otherwise specifically provided in BR JOHNSON’s order, Seller shall pay any sales, use, excise, tariff, duty, or other tax that may be imposed upon any of the goods.
- Governing Law; Jurisdiction/Venue. These terms and conditions and the parties’ relationship for the purchase of the goods shall be governed by and construed in accordance with the laws of the State of New York, without reference to conflicts of law principles. For purposes of litigating any claim or dispute arising from or related to these terms and conditions of sale and/or the purchase of the goods, the parties irrevocably submit and consent to the exclusive jurisdiction and venue of the New York State courts located in Erie County, New York, or of any federal court located in the Western District of New York, and agree that such litigation shall be conducted before those courts, and expressly waive all rights to challenge the jurisdiction and venue of those courts.
- Miscellaneous. No single or partial waiver by BR JOHNSON of a contractual right or remedy shall preclude any other or further exercise thereof or the exercise of any other right or remedy. All rights and remedies of BR JOHNSON hereunder are cumulative. No course of prior dealings between BR JOHNSON and Seller and no usage of the trade shall be relevant to supplement or explain this Agreement. No delay or omission by BR JOHNSON in exercising any, right or remedy hereunder shall be a waiver thereof or of any other right or remedy.