As used in these Purchase Order Terms and Conditions (these “Terms): “Goods” mean those goods specified on the Purchase Order that references these Terms (the “Order”) and as more particularly described in the technical specifications and drawings that may be referenced in the Order or attached hereto; “Services” mean those services described on the Order as more particularly described in the technical specifications and drawings that may be referenced in the Order or attached hereto; “Agreement” means the Order, these Terms, and all documents referenced therein or attached thereto; “Buyer” means Osborne Industries, Inc.; and “Vendor” means the person listed as the vendor on the Order. All other capitalized terms are as defined in the Order or below.
1. FORMATION OF CONTRACT. The Order is Buyer’s offer to Vendor to purchase the Goods and procure the Services on the terms and conditions of the Agreement. Acceptance by Vendor is expressly limited to the terms of this Order. Unless earlier canceled by Buyer, Vendor accepts Buyer’s offer upon the earliest of (a) Vendor’s affirmative acceptance by signature or other communication to Buyer, or (b) Vendor begins performance of the Order. However, if Vendor’s acceptance is by commencement of performance, Buyer reserves the right to revoke the Order or treat its offer as having lapsed before acceptance unless Buyer is notified of such acceptance within a reasonable time. The Agreement is intended to be a complete integration and there are no other prior or contemporaneous agreements or understandings pertaining to the subject matter of the Order. The Agreement may not be modified or interpreted by reference to any prior course of dealing, usage of trade, or course of performance. Additional or conflicting terms and conditions submitted on any invoice or other documentation submitted or supplied by Vendor are expressly rejected by Buyer. No modification of the Agreement will be effective or become binding unless in writing, signed by an authorized representative of Buyer.
2. CHANGES. Notwithstanding the foregoing, Buyer may, at any time, make written changes within the general scope of the Order that affect the: (a) technical requirements, drawings, designs, or specifications; (b) method of shipment or packing; (c) place of inspection, delivery, or acceptance; (d) quantities and delivery schedules; (e) description of time or place of performance; or (f) other similar terms and conditions. Vendor will promptly comply with any such changes upon receipt. If any such change causes an increase or decrease in the cost of or the time required for performance of the Order, an equitable adjustment will be made in the price or delivery schedule or both, consistent with such change, provided, however, that Buyer will have no liability for any change in the date of delivery for Goods or performance of the Services otherwise scheduled to be delivered or performed more than thirty (30) days from Vendor’s receipt of Buyer’s notice. Any claim for adjustment under this Section may, at Buyer’s option, be deemed to be absolutely and unconditionally waived unless asserted in writing (including the amount of the claim) and delivered to Buyer within thirty (30) days from the date of receipt by Vendor of the change order.
3. OBLIGATION. Vendor agrees to sell to Buyer the Goods and perform the Services for Buyer strictly in accordance with the Agreement. Except as stated in the Order, Vendor will actually perform all Services, and Vendor will not delegate or allow others who are not employees of Vendor or Buyer to perform or assist in the performance of the Services, except only after identifying the person(s) and obtaining Buyer’s prior written approval. Buyer may rescind its grant of permission as to any such individual at any time at its discretion, at which time Vendor will replace such individual with Personnel of the same or better qualifications and expertise and acceptable to Buyer. Vendor will provide administrative direction to its Personnel and will ensure that its Personnel comply with all requirements of the Agreement and, while on Buyer’s premises, Buyer’s safety and other policies.
4. DELIVERY AND PERFORMANCE. Vendor will strictly adhere to the delivery and completion schedules specified in the Order or, if not in the Order, in a reasonable, timely manner, and agrees that time is of the essence in the delivery of all Goods, provision of all Services, and Vendor’s other performance hereunder. If, at any time, Vendor believes it may not be able to comply with the required delivery or completion schedules, Vendor will immediately notify Buyer in writing. Buyer may, in addition to all other remedies, require Vendor, at Vendor’s expense, to ship Goods via air freight or other expedited routing and perform Services outside of Vendor’s normal work hours to avoid or minimize delay. Buyer may return or store, at Vendor’s expense, any Goods delivered more than ten (10) days in advance of the delivery date specified for such goods.\
5. PACKING AND SHIPPING. Goods will be shipped to the Ship To location specified in the Order using the shipper specified in the Order. If Vendor is arranging for shipping, Vendor will ship the goods using the method to obtain the lowest shipping cost. Except as specified in the Agreement, Buyer will pay the shipping charges as stated in Vendor’s invoice. Vendor’s is responsible for all excess shipping charges due to selection or routing by inefficient modes or multiple shipment. All prices include and Vendor will not charge for packaging, storage, or cartage. All Goods will be packaged, marked, and otherwise prepared in accordance with the attached specification, or if no such specifications are attached, in accordance with good commercial practices to obtain lowest shipping rates and in a manner adequate to insure safe arrival of the Goods to the named destination per the Order. Vendor will mark on containers handling and loading instructions, shipping information, Order number, item and account number, shipment date, names and addresses of Vendor and Buyer, and any information required by applicable law. An itemized packing list will accompany each shipment.
6. TITLE AND RISK OF LOSS. Title to all Goods passes to Buyer upon Buyer’s payment of the Goods, even if possession is retained by Vendor. Unless otherwise stated in the Order, the risk of loss of or damage to Goods will remain with the Vendor until and will pass to Buyer upon acceptance by Buyer or its designee or customer or delivery of possession of goods to Buyer or its designee or customer at the destination specified in the Order, whichever is later. Risk of loss passes per the term stated in the Order, or if not stated, F.O.B. destination. Notwithstanding the above, the risk of loss or damage to goods which so fail to conform to the Order as to give a right of rejection will remain with Vendor until cure or acceptance, at which time the above will again apply.
7. INSPECTION AND ACCEPTANCE. All Goods and results of the Services may be inspected and tested by Buyer, its customers, and contractors at all reasonable times and places. Buyer may also subject all Goods and results of the Services to final inspection, test, and acceptance at the delivery destination and will accept or give notice of rejection within a reasonable time after receipt. No acceptance, payment, or inspection of Goods or results of the Services by Buyer will release Vendor of its responsibility for any nonconformity, latent defects, fraud, mistakes, or warranty obligations. If any Goods or results of the Services is defective or otherwise not in conformity with the requirements of the Agreement, Buyer may, by written notice to Vendor: (a) rescind the Order as to such Goods or Services; (b) accept such Goods or Services at an equitable reduction in price; (b) reject such Goods or Services and require the delivery of replacements at Vendor’s sole expense; (c) replace or correct such Goods or re-perform the Services and charge Vendor the costs thereof; (d) terminate the Agreement for cause; and (e) seek any other remedies in law or equity. Any nonconforming tender of Goods will be deemed to substantially impair the value of the Order as a whole to Buyer.
8. COMPENSATION AND PAYMENT. Buyer will pay to Vendor the price, fees, costs, and/or rate(s) as set out in the Order, or if not stated in the Order, the lowest prevailing market price for the Goods or Services. Vendor agrees that if Vendor has reduced the price prior to performance, Vendor will provide Buyer the reduced price. Buyer is not obligated to Vendor for any minimum payment or time, nor is Buyer responsible for overtime. Buyer will make the payments pursuant to the payment schedule stated in the Order, and upon submission of invoices by Vendor, but Buyer has no obligation to pay until receipt of the Goods or completion of performance of the Services to which the payment relates. Interim payments will not constitute full or partial acceptance by Buyer. Unless otherwise stated in the Order, Buyer will pay final, correct invoices within thirty (30) days after receipt, and if Buyer pays the invoice within ten (10) days after receipt, Buyer may apply and will receive a two percent (2.0%) discount from the price stated on the invoice. Buyer may return Vendor’s invoices for correction or offset due to shortages, late deliveries, rejections, or other failure to comply with the requirements of the Agreement, before it pays such invoice. Vendor will pay and has included in the amounts payable under the Order, any foreign, federal, state, or local sales, transportation, use, value added, duties, imposts, tariffs, or other tax (except for Buyer’s income taxes) or levies or surcharges, arising out of or related to the Agreement. Unless otherwise provided in the Order, all of Vendor’s expenses, direct or indirect, will be the responsibility of Vendor unless previously approved by Buyer in writing. The foregoing compensation and reimbursement will be exclusive and in lieu, of all other amounts or types of consideration or compensation or properties, intellectual or otherwise, due or claimed by Vendor arising out of or related to the Agreement. Unless stated otherwise, all amounts are in United States Dollars.
9. VENDOR’S WARRANTIES. Vendor represents and warrants that: (a) all Goods will conform to the requirements of the Order (including all descriptions, specifications, and drawings made a part of the Order); (b) all Goods will be merchantable, fit for their intended purposes, free from all defects in materials and workmanship, and, to the extent not manufactured pursuant to detailed designs furnished by Buyer, free from defects in design; (c) the Services will be performed in a professional manner, by qualified, competent Personnel, and in conformity with applicable law; (d) Vendor and its Personnel have and will comply with all laws, rules, regulations, and ordinances applicable to the Agreement, the Goods, the provision of the Services, and other performance; (e) Buyer will receive good and merchantable title to the Goods and Work Product, free of all liens, claims, or encumbrances; (f) the Work Product, Vendor Materials, and/or any component thereof or their use by Buyer do not infringe or misappropriate any patent, copyright, trademark, trade secret, or other proprietary right of any person, and there is no claim, litigation, or proceeding pending or threatened alleging any of the foregoing; (g) neither Vendor nor its Personnel are prohibited by law, contract, or otherwise from performing the Services; (h) Vendor has the full right, power, and authority to perform all the obligations of the Agreement without the consent of any third party, or to the extent any consent is needed, such consent has been obtained or will be obtained prior to the applicable performance; and (i) all materials delivered to Buyer will be free of viruses or other malicious code of any kind that may disable, erase, display any unauthorized message/content, permit unauthorized access, or otherwise impair Buyer’s software, hardware, data, or systems. Neither Buyer’s approval of Vendor’s designs or specifications nor Buyer’s acceptance of Goods or result of the Services will relieve Vendor of its obligations under this section. Buyer’s warranty rights are in addition to but will not be limited by any standard warranties offered by Vendor.
10. INTELLECTUAL PROPERTY.
A. WORK PRODUCT. The parties agree that all specifications, designs, coding, software, media content, documentation, reports, or similar work product, whether or not complete, that Vendor discovers, invents, creates, develops, produces, and/or delivers arising out of or related to the Agreement (the “Work Product”) and all intellectual property rights therein are and will be the sole property of Buyer and a “work made for hire.” To the extent the Work Product is not to be a “work made for hire” or title does not automatically vest in Buyer, then Vendor hereby irrevocably assigns to Buyer all of the right, title, and interest in and to the Work Product. Vendor will execute and will cause its Personnel to execute all documents requested to confirm in Buyer all right, title, and interest in and to the Work Product, including without limitation, applications for registration with governmental agencies.
B. VENDOR MATERIALS. To the extent any specifications, designs, coding, software, media content, documentation, reports, or or other materials that do not constitute Work Product are included in the Goods or used by Vendor while performing Services and become embedded and/or incorporated into or a part of any Goods or deliverables or is necessary for the complete enjoyment of the Goods or deliverables (the “Vendor Materials”), Vendor hereby grants to Buyer the license under the terms specified in the Order or, to the extent not specified in the Order, a perpetual, non-exclusive, royalty-free, world-wide, transferable, and sublicenseable license to use, copy, distribute, display, perform, modify, make derivative works of, and otherwise use the Vendor Materials.
C. BUYER MATERIALS. If Buyer provides Vendor any Confidential Information (as defined below), other information, specifications, designs, coding, software, program material, media, documentation, report, or other materials (the “Buyer Materials), Vendor may only use the Buyer Materials as strictly necessary to perform its obligations under the Agreement for the sole benefit of Buyer during the term of and subject to the other terms and conditions of the Agreement. Except as expressly stated above, no license or right is granted to Vendor by implication or otherwise to the Buyer Materials or any patent, copyright, trademark, trade secret, or other proprietary right of Buyer. The Buyer Materials are provided “AS IS,” and Buyer does not warrant the accuracy, completeness, or availability of the same.
D. CONFIDENTIAL INFORMATION. All information obtained from Buyer or learned by Vendor in connection with the Agreement or relating in any way to Buyer’s business, including, without limitation, engineering drawings, specifications, the name and identity of Buyer’s customers, distributors, and end users, Buyer’s proprietary information and trade secrets, the terms of the Agreement, and information of third parties to whom Buyer owes a duty of confidentiality (the “Confidential Information”) will be received in confidence and remain the property of Buyer. Vendor will not use the Confidential Information, except to perform its obligations under the Agreement for the exclusive benefit of Buyer, and Vendor will not disclose the Confidential Information to any person, except only to its employees who have a need to know to perform the obligations under the Agreement. Vendor will safeguard the Confidential Information in the same way that is protects its most confidential information, but in no case less than reasonable protection. Vendor acknowledges that a breach by Vendor of this Section will cause Buyer irreparable harm, not compensable by monetary damages along.
E. IP INDEMNIFICATION. Vendor will indemnify, defend, and hold harmless Buyer, its customers, and end users from all liability, loss, damage, or expenses (including but not limited to, attorneys’ fees) arising out of or related to any and all claims, actions, or proceedings charging infringement or wrongful use of any patent, trademark, trade secret, mask work, copyright, or any other intellectual or proprietary right by reason of the sale, use, modification, or repair of any Goods, the Work Product, or results of the Services, unless such claims are based solely on Vendor’s strict compliance with specifications supplied by Buyer to Vendor. If the use, sale, or license of any Goods, Work Product, or results of the Services, with respect to which Vendor indemnifies Buyer, is enjoined as a result of such action or proceeding, Vendor, at no expense to Buyer, will obtain for Buyer, its customers, and end users, the right to use the infringing article or will substitute an equivalent, non-infringing article acceptable to Buyer.
11. GENERAL INDEMNIFICATION. Vendor will indemnify, defend, and hold Buyer harmless from and against any and all liability, loss, damages, and costs (including, without limitation attorneys’ fees) arising out of or related to (a) a breach of Vendor’s obligations and warranties under the Agreement and (b) any personal injury or property damage to any person caused by the Goods or to the extent resulting from the negligent acts, negligent omissions, or willful misconduct of Vendor or its Personnel while performing Services.
A. WITHOUT CAUSE. At any time, Buyer may terminate this Order in whole or in part for its convenience. Upon such termination, Vendor will immediately stop all work as specified in the notice, and Vendor and Buyer will agree on an equitable settlement, which will not exceed the total price of the Goods or Services subject to such termination and be subject to the other provisions of these Terms, provided, however, Buyer will have no liability for the termination of any Order or portion thereof for which delivery or performance is required more than sixty (60) days from the date of receipt of Buyer’s termination notice. Vendor must submit a written termination claim within thirty (30) days after receipt of Buyer’s termination notice, or such claim will be absolutely and unconditionally waived. This Section states Vendor’s exclusive remedy and Buyer’s sole obligation with respect to a termination of the Agreement by Buyer for convenience.
B. FOR CAUSE. Buyer may immediately terminate this Order in whole or in part if Vendor fails to deliver the Goods or perform the Services when and as required by the Agreement, fails to perform or otherwise breaches an obligation of the Agreement, or so fails to make progress as to endanger its performance in accordance with the Agreement. Upon notice of such termination, Buyer may, at Buyer’s option, require Vendor to transfer title and deliver to Buyer any completed or partially completed Goods, Work Product, or results of the Services as Vendor has produced or acquired for the performance of the Agreement. Vendor will remain liable for all damages incurred by Buyer as a result of Vendor’s breach and will reimburse Buyer for all such damages. In addition, Buyer may offset any such damages from any amounts of money due Vendor by Buyer, whether or not such amounts arise out of the Order.
C. REMEDIES AND OBLIGATIONS. Vendor agrees that a breach of the Agreement would cause irreparable harm and injury to Buyer, not adequately compensated by damages alone. In the event of any actual or threatened breach, Vendor agrees that Buyer will be entitled to an injunction, specific performance, or other equitable relief, without an obligation to post a bond or other security, in addition to any other remedies it might have. Upon the termination or expiration of the Agreement for any reason, Vendor will return to Buyer its Confidential Information, the Work Product, the Buyer Materials, and all data, materials, and other property belonging to Buyer. The obligations of Sections 6, 7, and 9 through 17 will survive the expiration or termination of the Agreement.
13. LIMITATION OF LIABILITY. Buyer’s maximum liability for breach or termination of the Agreement will be the least of (a) (1) the cost of existing inventory of Goods to be furnished hereunder that have passed final acceptance test and are awaiting delivery, but no more than required to fulfill the next delivery schedule following the date of termination (but not to exceed thirty (30) days), plus the existing inventory of materials in varying stages of completion with some degree of labor applied and/or individual piece part and/or raw material in stage of completion no more than necessary to meet delivery schedules, required to fulfill the next delivery schedule following the date of termination (but not to exceed an additional thirty (30) days of deliveries), except that there will be no liability for inventories in either category which is readily usable or resaleable, plus (2) the hours of Services actually performed at the time of termination at the lesser of the rate specified in the Order or Vendor’s standard rate; (b) the total price of the Goods and Services that is the subject of the termination; or (c) the remedies available at law. The above remedies will be Vendor’s exclusive remedy and Buyer’s sole obligation for Buyer’s breach or termination. Under no circumstances will Buyer’s liability include indirect, special, consequential, incidental, or punitive damages.
14. APPLICABLE LAW. The Agreement and the parties’ performance and other relations will be governed by, and construed in accordance with, the internal laws of the State of Kansas, without resort to the rules governing conflict of laws, and, as appropriate, the laws of the United States of America. The parties expressly reject the application of the United Nations Convention on the Sale of Goods. Any dispute arising out of or related to the Agreement will be decided exclusively in a court of competent jurisdiction sitting in Johnson County, Kansas, and Vendor agrees and consents to the personal jurisdiction of such courts.
15. NOTICE. Any notice or claim required or allowed in the Agreement will be in writing and will be given and received (i) by personal delivery, effective upon delivery, (ii) by registered or certified mail, return receipt requested, postage prepaid, addressed to the address stated in the Order for the recipient, effective ten (10) business days after proper deposit in the mail, or (iii) by facsimile directed to the facsimile number stated in the Order for the recipient, but only if accompanied by mailing of a copy in accordance with (ii) above, effective as of the date of facsimile transmission with confirmation of receipt.
16. RELATIONSHIP. Vendor is an independent contractor of Buyer and not an employee, agent, or joint venturer. Vendor agrees that the personnel furnished by Vendor to perform Services, whether employees, agents or subcontractors of Vendor (the “Personnel”), will be, and will remain at all times during the performance of the Agreement Vendor’s employees, subcontractors, or agents. Vendor will timely pay all wages, salaries, and other amounts due to or other amounts arising from its relationship with its Personnel.
17. GENERAL. The rights and remedies of Buyer herein are cumulative and are in addition to any other rights or remedies that Buyer may have at law or in equity. Vendor may not assign the Agreement or any interest or right herein without the prior written consent of Buyer, which may be withheld in Buyer’s sole discretion. Any attempted assignment or transfer in contravention of this paragraph will be void. No failure or delay by either party in the exercise of any right or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise of such right or privilege preclude other or further exercise thereof or of any other right or privilege. If any provision of the Agreement is held to be ineffective, unenforceable, or illegal for any reason, such decision will not affect the validity or enforcement of any remaining portions thereof. Headings used in the Agreement are for reference purposes only and will not be deemed a part of the Agreement. These Terms and the Order have been mutually drafted by the parties, and no rule of strict construction will be applied against any party.