Terms and Condiditons
1. ACCEPTANCE. This Purchase Order (“PO”) contains the entirety of the Terms and Conditions (“Terms”) of Southern Industrial Sales, Inc. (“Buyer”) offer. Neither Buyer not Seller (“Seller”) shall be bound by oral or written agreement not expressly included in the PO. Acceptance of this PO is expressly limited to and made conditional upon the exclusivity of the Terms and Conditions set by the Buyer. This PO may be amended and altered in writing and signed by an authorized representative of each parties expressly referencing the Terms and Conditions being modified, all other terms of Buyer will remain in effect.
2. SCOPE. These terms and Conditions, as may be amended from time to time, apply to the purchase by Buyer of all Products and/or services (“Products”) from Seller as described on the face of the PO or other documents referenced on the face of such PO. The term Product throughout these Terms and Conditions includes without limitations, raw materials, supplies, components, tooling equipment and all services. No PO is valid unless issued by Buyer on its official, electronic or otherwise generate PO to the Seller.
3. PRICING. RISK OF LOSS. All prices payable by Buyer for the Product are stated in PO and include the cost of packaging and delivery and shall be on the delivery term specified in the PO to the specified destination. Unless otherwise specified in this PO, title to the Product covered by the PO and all risk of loss or damage to such Product shipped shall be in Seller, irrespective of FOB or other delivery terms, and shall remain in the Seller until the Product have been delivered to Buyer’s applicable facility and have been accepted at that facility.
4. QUALITY. Seller shall meet all quality requirements of Buyer and all quality requirements of Buyer’s customers, including, but not limited to, all applicable plans, specifications, and other contract descriptions, as set forth on the face of the PO. The quality of the Product shall be subject to the satisfaction of the Buyer, who shall be entitled to reject non-conforming Product.
5. PACKAGING. SHIPPING. All Product covered by the PO, unless otherwise directed on the PO or in a writing signed by Buyer’s authorized representative, shall be suitably marked and shipped in accordance with the requirements of common carriers and when transportation costs are payable by the Buyer, in a manner to secure the lowest transportation cost. Seller shall pay all additional costs related to delivery of late shipment.
6. DELIVERY. The Seller shall make delivery to the specified destination by the due date stated on the PO or as otherwise agreed in writing by the Parties. Any such stated due date is of the essence and the Seller shall notify Buyer promptly if it reasonably anticipates that delivery will not be on time. Seller shall incur all costs related to unauthorized early delivery. The Seller warrants that upon acceptance of delivery at the destination the Seller will convey to Buyer good and marketable title to all Product free of any liens or encumbrances of any kind. Buyer shall not be obliged to buy or pay for, and Buyer or its designated representative may at any time after delivery reject, all or any part of a given delivery of Product that Buyer or its designated representative determine does not conform with the PO or agreed specifications. The Seller shall retain or reacquire title to, and bear all risks of loss of such non-conforming Product and shall at its own expense be responsible for the return or disposal. Seller shall incur all costs related to Buyer’s receiving non-conforming Product which costs include but are not limited handling, storage, and testing.
7. WARRANTY. The Seller warrants from the date of End User / Buyer’s acceptance that all product:
a) strictly conform with the description contained in the PO, the quality and agreed specifications stated or incorporated as a schedule, by reference or otherwise.
b) are merchantable, fit for the purpose intended, and free of defect,
c) are not articles which may not, under the provisions of Sections 404 or 505 of said Act be introduced into interstate commerce.
8. INTELLECTUAL PROPERY. The Seller shall indemnify and hold Buyer and its customers harmless from all claims, losses, suits, damages, liability, and all expenses (including but not limited to reasonable attorney’s fee) arising out of or related to any such actual patent, copyright, trademark or other property rights infringement or alleged direct or contributory infringement by reason of manufacture, use or sale of the Product.
9. INDEMNIFICATION. Seller agrees to indemnify and hold Buyer, its employees, directors, its affiliates and subsidiaries, and agents from and against any and all claims, libels, suits, judgments, fines, penalties, actions and proceedings, damages (including special, consequential, punitive, and exemplary damages), including costs and expenses including reasonable fees for attorneys, experts and consultants, settlement costs, incurred in connection with any claims (including lawsuits, administrative claims, regulatory actions, and other proceedings to recover for personal injury or death, property damage or economic losses) that are related in anyway to or arise in anyway from the Product, Seller’s representations, Seller’s performance or failure to perform obligations under any PO, including claims based on Seller’s breach or alleged breach of warranty or caused or alleged to have been caused by consumption or use of such person or persons of any Product as shipped or delivered by Seller to Buyer.
Seller’s obligation to indemnify will apply regardless of whether the claim arises in tort, negligence, contract, warranty, strict liability, or otherwise, except to the extent any such liability arises solely out of the gross negligence or willful misconduct of Buyer, its employees or authorized representative.
10. TERMINATION BY THE BUYER. Buyer reserves the right to terminate all or any part of each PO without liability of Buyer to Seller, in the event:
a) Seller repudiates, breaches, or threatens to breach any of the terms of the PO including without limitation, Seller’s warranties,
b) Seller fails to perform or deliver Product as specified by Buyer,
c) Seller fails to provide Buyer with adequate and reasonable assurances of Seller’s ability to perform timely and of Seller’s obligations under any PO, including without limitation, delivery of Product,
d) Buyer terminates for beach of any other PO issues by Buyer to Seller in accordance with the terms of such PO,
e) Seller attempts an assignment or transfer of any interest without prior written approval of Buyer,
f) Seller fails to remedy the breach of violation listed above at 10 a-e within thirty (30) days after receipt of written notice from Buyer, or
g) Seller makes an assignment for the benefit of its creditors, commits any act of bankruptcy, has a receiver appointed, or otherwise admits of its inability to pay its debts as they mature, and Seller fails to remedy the breach or violation of this section 10e within sixty (60) days after receipt of written notice from Buyer.
11. ASSIGNMENT. The Seller shall not assign, transfer or otherwise dispose of any rights or obligations to any third party without the prior written consent of Buyer. All rights and obligations shall inure to the benefit of and be binding on any permitted assignee or successor of each Party.
12. COMPLIANCE WITH LAWS. Seller agrees to comply with all federal, state, and local laws, executive orders, rules and regulations that may be applicable to Seller’s performance of its obligations to under each PO. If requested, Seller shall so certify when and in such form as Buyer or Buyer’s customers or suppliers may require, including among other things, a certification that the items were produced in compliance with all applicable requirements of the Fair Labor Standards Act.
13. PAYMENT. Payment terms are standard terms that both Buyer and Seller have established as long as the product is free from defect and meets the intended specifications set out on PO.
14. CONFIDENTIALITY. Any specifications, samples, designs, formulations, trade secrets, patents, financial data, or other information that Buyer identifies as or otherwise deems confidential (“Buyers Confidential Information”) and discloses to the Seller in connection with the PO shall remain the exclusive property of the Buyer and shall, along with any information derived from the same, be kept confidential by the Seller and its employees and agents and shall not, without Buyer’s prior written consent, be disclosed to any third party or used except for purposes of the PO. Notwithstanding the foregoing, such information shall not be deemed confidential to the extent that the Seller can demonstrate by written record that it was previously known by the Seller, became generally available to the public through no fault of the Seller, was disclosed to the Seller by a third party without breach of any confidentiality obligation, or its specifically required to be disclosed by law or legal process.
The Buyer and Seller agree that the covenant of confidentiality and nondisclosures set forth above shall survive termination of this Agreement and shall remain in effect for so long as the Buyers Confidential Information remains confidential. The Parties agree that this covenant shall supersede any contrary duration term set forth in any previously executed Confidentiality Disclosure Agreement.
15. REMEDIES. In the event Seller fails to perform in accordance with the PO (“Breach”), without limiting the generality of the foregoing, should any Product fail to conform to the warranties, or should Seller or any Product provided by Seller fail to meet any of the conditions or specifications set forth, and without prejudice to any other rights or remedies it may have under applicable law or equity. Buyer shall have the right, after any applicable cure period, to recover from the Seller any and all mitigated losses and reasonable additional expenses incurred by Buyer arising from Seller’s Breach, and at the Buyer’s options:
a) require the Seller promptly cure such Breach with conforming delivery at no additional charge or expense to Buyer and/or,
b) reject any non-conforming Product, cancel any and all outstanding deliveries, cover by purchasing replacement Product from one or more other suppliers.
16. INSURANCE. The Seller agrees to maintain insurance covering the Product and its performance under the PO in compliance with applicable legal requirements and including but not limited to comprehensive commercial general liability (including products liability completed operations and third party liability coverage) for not less than $1,000,000 per occurrence and $2,000,000 annual aggregate with an Umbrella Liability policy which incorporate excess Product Liability Insurance of not less than $25,000,000 per occurrence and $25,000,000 Annual Aggregate and product recall insurance of $100,000 per occurrence and $200,000 Annual Aggregate, with an insurance company that has an A.M. Best rating of not less than A-X. Such insurance shall name the Buyer an Additional Insured. Seller shall furnish Buyer annually with a Certificate of Insurance evidencing such insurance.
17. FORCE MAJURE. Seller’s failure to deliver Product as provided in the PO by reason of any of the following and such event shall not constitute an event of default or breach of any Terms: strike, picket lines, boycott efforts, fires, floods, freeze, accidents, war (whether or not declared), revolution, insurrections, acts of God, acts of government (including without limitation any agency or department of the United States of America or any other country), acts of the public enemy, scarcity or rationing of gasoline or other fuel or vital products, inability to obtain materials or labor, or other causes which are reasonably beyond the control of the defaulting Party, Seller shall promptly notify the Buyer of any such delay and its cause. Provided that if any such cause that continues for more than thirty (30) days the Buyer may at its own option cancel this PO and all its obligations to Seller.
18. GOVERNING LAW AND JURISDICATION. The formation and performance of the contract shall be governed by the laws and State of Alabama without regard to any applicable conflict of law provisions. Seller consents to the exclusive jurisdiction of any appropriate court of competent jurisdiction in the State of Alabama for any legal or equitable action or proceeding.
a) Failure of Buyer to insist upon performance of any provisions of these Terms or to exercise any rights hereunder shall not be construed as a waiver or relinquishment of the future performance of any such term or conditions or the future exercise of such rights.
b) Any enforceable terms, provision, undertaking or restriction contained in these Terms are held by a court of competent jurisdiction to be invalid, void or unenforceable (in whole or in part), the remainder of the terms, provisions, undertakings and restrictions will remain in full force and effect and will in no way be affected, impaired or invalidated.
c) Any notice or request required or permitted to be given in connection with these Terms shall be sent by mail, prepaid, return receipt requested, by fax, with receipt confirmation, or by express delivery service to the address set forth on the PO or to any other business address furnished in writing by the intended recipient to the sender. The date of notice shall be deemed to be the date of which such notice has been sent by fax, received by mail, or by express delivery service.
d) Section headings are for convenience only and are not construed as parts of this Agreement.
e) Standard published warranty rates and service rates will apply on all warranties and/or Products that do not perform in accordance with Buyer’s PO.
f) Replaced warranty items and Products and/or Parts not performing in accordance with Buyer’s PO will be held for a period of thirty (30) days at Buyer’s warehouse before item is disposed. If Seller would like the Product and/or Parts returned, they must provide a return authorization, packing instructions, packing list, ship to address within this thirty (30) days period. All freight and handling cost of warranty items will be the responsibility of the Seller.