1. ACCEPTANCE

This Purchase Order (“PO”) contains the entire Terms and Conditions (“Terms”) of Southern Industrial Sales, Inc. (“Buyer”) offer. Neither Buyer nor Seller (“Seller”) shall be bound by any oral or written agreement not expressly included in this PO. Acceptance of this PO is expressly limited to, and made conditional upon, Seller’s agreement to the exclusivity of these Terms. This PO may be amended only in a writing signed by an authorized representative of each party expressly referencing the Terms being modified. All other Terms of Buyer shall remain in full force and effect.

 

2. SCOPE

These Terms, 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 “Products” throughout these Terms includes, without limitation, raw materials, supplies, components, tooling, equipment, and all services. No PO is valid unless issued by Buyer on its official Purchase Order form, electronically or otherwise generated by Buyer, and provided to Seller.

 

3. PRICING; RISK OF LOSS

All prices payable by Buyer for the Products are stated in the PO and include the cost of packaging and delivery and shall be on the delivery terms specified in the PO to the specified destination. Unless otherwise specified in this PO, title to the Products and all risk of loss or damage to the Products shall remain with Seller, regardless of FOB or other delivery terms, until the Products have been delivered to Buyer’s applicable facility and 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 Products shall be subject to Buyer’s satisfaction, and Buyer shall be entitled to reject non-conforming Products.

 

5. PACKAGING; SHIPPING

All Products 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 Buyer, in a manner to secure the lowest transportation cost. Seller shall pay all additional costs related to delivery of late shipments.

 

6. DELIVERY; INSPECTION; NON-CONFORMING PRODUCTS

Seller shall deliver to the specified destination by the due date stated on the PO or as otherwise agreed in writing by the parties. Any stated due date is of the essence and Seller shall promptly notify Buyer if Seller reasonably anticipates that delivery will not be on time. Seller shall incur all costs related to unauthorized early delivery.

 

Seller warrants that upon delivery and acceptance, Seller will convey to Buyer good and marketable title to all Products free of all liens or encumbrances of any kind. Buyer shall not be obligated to buy or pay for, and Buyer or its representative may reject, all or any part of any delivery of Products that Buyer determines does not conform with the PO or agreed specifications. Seller shall retain or reacquire title to, and bear all risk of loss of, such non-conforming Products and shall, at its own expense, be responsible for the return or disposal of the Products.

 

Seller shall incur all costs related to Buyer’s receipt of non-conforming Products, including but not limited to handling, storage, testing, and return freight.

 

7. WARRANTY

Seller warrants, from the date of End User/Buyer acceptance, that all Products:

a) strictly conform with the description contained in the PO and all specifications stated or incorporated by reference;

b) are merchantable, fit for their intended purpose, and free of defects; and

c) are not articles which may not, under the provisions of Sections 404 or 505 of the Federal Food, Drug, and Cosmetic Act, be introduced into interstate commerce.

 

8. INTELLECTUAL PROPERTY

Seller shall indemnify and hold Buyer and its customers harmless from all claims, losses, suits, damages, liability, and all expenses (including reasonable attorney’s fees) arising out of or related to any patent, copyright, trademark, or other intellectual property infringement or alleged infringement by reason of the manufacture, use, or sale of the Products.

 

9. INDEMNIFICATION

Seller agrees to indemnify and hold Buyer, its employees, directors, affiliates, subsidiaries, and agents harmless from and against any and all claims, liabilities, losses, suits, judgments, fines, penalties, actions, proceedings, damages (including special, consequential, punitive, exemplary, and economic damages), and costs and expenses (including reasonable attorney’s fees, experts’ fees, consultants’ fees, and settlement costs) incurred in connection with any claim that is related to or arises from the Products, Seller’s representations, Seller’s performance or failure to perform under any PO, or Seller’s breach or alleged breach of warranty.

 

Seller’s obligation to indemnify applies regardless of whether the claim arises in tort, negligence, contract, warranty, strict liability, or otherwise, except to the extent such liability arises solely from the gross negligence or willful misconduct of Buyer.

 

10. TERMINATION BY BUYER

Buyer reserves the right to terminate all or any part of any PO without liability to Seller if:

a) Seller repudiates, breaches, or threatens to breach any term of the PO (including Seller’s warranties);

b) Seller fails to perform or deliver Products as specified;

c) Seller fails to provide adequate and reasonable assurances of timely performance;

d) Buyer terminates Seller for breach of any other PO issued by Buyer to Seller;

e) Seller attempts an assignment or transfer without Buyer’s prior written consent;

f) Seller fails to remedy any breach listed in Sections 10(a)–(e) within thirty (30) days after receipt of written notice from Buyer; or

g) Seller makes an assignment for the benefit of creditors, commits any act of bankruptcy, has a receiver appointed, or otherwise admits inability to pay debts as they mature, and fails to remedy the violation within sixty (60) days after receipt of written notice from Buyer.

 

11. ASSIGNMENT

Seller shall not assign, transfer, or otherwise dispose of any rights or obligations to any third party without Buyer’s prior written consent. 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 applicable to Seller’s performance under each PO. If requested, Seller shall certify compliance in the form required by Buyer, Buyer’s customers, or suppliers, including a certification that items were produced in compliance with the Fair Labor Standards Act.

 

13. PAYMENT

Payment terms shall be the terms stated on the face of the PO. Buyer’s obligation to pay is conditioned upon receipt and acceptance of Products free from defect and conforming to the PO and specifications.

 

14. CONFIDENTIALITY

Any specifications, samples, designs, formulations, trade secrets, patents, financial data, or other information that Buyer identifies as confidential (“Buyer’s Confidential Information”) and discloses to Seller in connection with the PO shall remain Buyer’s exclusive property and shall be kept confidential by Seller and its employees and agents. Seller shall not disclose such information to any third party or use it for any purpose other than performance under the PO without Buyer’s prior written consent.

 

Buyer’s Confidential Information shall not be deemed confidential to the extent Seller can demonstrate by written records that the information: (i) was previously known by Seller; (ii) became publicly available through no fault of Seller; (iii) was disclosed to Seller by a third party without breach of confidentiality; (iv) is independently developed by Seller without use of Buyer’s Confidential Information; or (v) is required to be disclosed by law or legal process, provided Seller gives Buyer prompt notice when legally permitted.

 

The confidentiality obligations shall survive termination and remain in effect so long as Buyer’s Confidential Information remains confidential. These confidentiality obligations supersede any contrary duration term set forth in any previously executed confidentiality or nondisclosure agreement.

 

15. REMEDIES

If Seller fails to perform in accordance with the PO (“Breach”), including any failure of Products to conform to warranties or specifications, Buyer may recover from Seller all mitigated losses and reasonable expenses incurred by Buyer arising from the Breach and, at Buyer’s option:

a) require Seller to promptly cure the Breach with conforming delivery at no additional cost to Buyer; and/or

b) reject non-conforming Products, cancel outstanding deliveries, and/or cover by purchasing replacement Products from one or more other suppliers.

 

16. INSURANCE

Seller shall maintain insurance covering the Products and its performance under the PO in compliance with applicable legal requirements, including but not limited to:

- Commercial General Liability insurance (including products liability, completed operations, and third-party liability) of not less than $1,000,000 per occurrence and $2,000,000 annual aggregate;

- Umbrella Liability policy incorporating excess Products 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.

 

Such insurance shall be issued by an insurer with an A.M. Best rating of not less than A-X and shall name Buyer as an Additional Insured. Seller shall furnish Buyer annually with a Certificate of Insurance evidencing such coverage.

 

17. FORCE MAJEURE

Seller shall not be deemed in default for failure to deliver Products due to causes beyond its reasonable control, including strike, picket lines, boycott efforts, fires, floods, freeze, accidents, war (whether or not declared), revolution, insurrection, acts of God, acts of government, acts of the public enemy, scarcity or rationing of fuel or vital products, inability to obtain materials or labor, or other similar causes.

 

Seller shall promptly notify Buyer of any delay and its cause. If such cause continues for more than thirty (30) days, Buyer may cancel the PO at its option without liability.

 

18. GOVERNING LAW; JURISDICTION

The formation and performance of the contract shall be governed by the laws of the State of Alabama, without regard to conflict of law provisions. Seller consents to the exclusive jurisdiction of any court of competent jurisdiction in the State of Alabama for any legal or equitable action or proceeding.

 

19. MISCELLANEOUS

a) Buyer’s failure to insist upon performance or to exercise any right shall not be construed as a waiver.

b) If any provision is held invalid or unenforceable, the remainder shall remain in full force and effect.

c) Any notice required or permitted shall be sent by mail (prepaid, return receipt requested), fax with receipt confirmation, or express delivery service to the address on the PO or any other address provided in writing.

d) Section headings are for convenience only and are not part of the agreement.

e) Standard published warranty rates and service rates apply to any warranty items and/or Products that do not perform in accordance with Buyer’s PO.

f) Replaced warranty items and/or parts not performing in accordance with Buyer’s PO will be held for thirty (30) days at Buyer’s warehouse before disposal. If Seller requests return, Seller must provide a return authorization, packing instructions, packing list, and ship-to address within the thirty (30) day period. All freight and handling costs shall be Seller’s responsibility.

 

20. CANCELLATION

Buyer may cancel this PO in whole or in part by written notice to Seller. If Buyer cancels for convenience (and not due to Seller’s breach), Seller may invoice Buyer cancellation charges based on the scheduled ship date shown on the PO (or confirmed in writing by Seller), as follows:

a) Cancellation within three (3) weeks of the scheduled ship date: 100% of the PO total shall be due.

b) Cancellation between three (3) and four (4) weeks prior to the scheduled ship date: 85% of the PO total shall be due.

c) Cancellation between four (4) and six (6) weeks prior to the scheduled ship date: 75% of the PO total shall be due.

d) Cancellation between six (6) and eight (8) weeks prior to the scheduled ship date: 65% of the PO total shall be due.

e) Cancellation more than eight (8) weeks prior to the scheduled ship date: 50% of the PO total shall be due.

 

Cancellation charges apply to the total PO amount including Products, materials, labor, services, freight, and any non-refundable supplier costs incurred by Seller in performance of this PO.