1. ACCEPTANCE OF ORDER: Seller (whose name and address are stated on the reverse side of this document) agrees that the following terms and conditions will control the performance of Seller and Dur-A-Flex, Inc.(“DAF”) under this order. DAF preemptively OBJECTS TO THE INCLUSION OF ANY DIFFERENT OR ADDITIONAL TERMS proposed by Seller. If different or additional terms are included in Seller’s quote, order acknowledgement, invoice or acceptance, a contract of sale will result on DAF’s terms stated herein. DAF’s acceptance of any quotation is expressly conditioned on Seller’s assent to these terms and conditions and rejection of different or additional terms of Seller.
2. CHANGES: DAF reserves the right to make changes at any time in (a) services or goods to be supplied; (b) applicable drawings, designs or specifications; (c) shipment and packing and (d) time or place of delivery/performance, including temporary suspension. If any change causes an increase or decrease in cost, or time required, for performance, an equitable adjustment may be made in the contract price or schedule. Any claim for adjustment shall be deemed waived unless asserted in writing within five (5) days after DAF’s written notice affecting the change. Price increases or extensions of time for delivery/performance shall not be binding on DAF unless agreed to in writing.
3. PACKAGING, SHIPPING: Unless otherwise agreed in writing, all goods ordered by DAF shall be delivered F.O.B. DAF’s dock, 95 Goodwin Street, East Hartford, Connecticut, delivered without charge for boxing, crating or storage, and suitably packaged against damage. The goods shall be described on bills of lading in accordance with current applicable regulations, shipped with a packing list separately itemizing each item and shows DAF’s order number,item number and description of goods. DAF’s count or weight is conclusive for shipments with no packing list. DAF’s order numbers and symbols must be plainly marked on all invoices, packages, bills of lading, and shipping orders. Delays or errors in invoices, or lack of supporting documentation, shall be cause for withholding payment without loss of discounts. Seller is liable for losses resulting from deviation from DAF’s routing instructions and losses will be offset..
4. DELIVERIES: DAF’s production schedules are based on Seller’s agreement to deliver goods or services purchased by the date specified on the face of the Purchase Order. Time is of the essence for this Order. Seller will promptly email DAF of any events that could affect deliveries or services. If deliveries or services are not made or provided at the time agreed upon, DAF reserves the right to cancel this Order and purchase alternatives and Seller will be liable for damages. Delivery of any goods early or in excess of the specified quantity, without DAF’s prior written approval, shall be solely at Seller’s risk. Seller is responsible for provision of all equipment necessary for delivery. To the extent that DAF equipment is used by Seller to deliver (e.g. wheel chocks, handtrucks, compressers), it shall be solely at Seller’s risk and Seller shall be responsible for any damage to the equipment, property and/or delivered goods.
5. FORCE MAJEURE: DAF shall not be held responsible for any failure to perform under this Order if such failure is due to matters outside DAF’s control, including, but not limited to Acts of God, severe weather, war, federal, state, or local action, statute, ordinance or regulation, strike or other labor trouble or other incidents outside DAF’s control which makes performance impossible or impractical.
6. INSPECTION AND REJECTION: Payment for goods or services shall not constitute acceptance. DAF has the right to inspect and reject any goods or services which are defective, in DAF’s sole judgment. Goods rejected may be returned at Seller’s expense, in addition to DAF’s other legal rights. Seller will pay all expenses of unpacking, examining, repacking and reshipping goods to Seller. If DAF receives goods whose defect or nonconformity is not apparent on examination, DAF reserves the right to require replacement and payment of damages. Any goods rejected by DAF shall be held, reshipped or otherwise disposed of solely at Seller’s risk and expense.
7. PAYMENT: If no payment date is specified in this order, payment shall be net, cash no less than thirty (30) days after completion of delivery of the goods to DAF or the performance of the services requested.
8. ASSIGNMENT/RIGHT OF SETOFF: Seller shall not delegate any duties or assign any rights or claims under this Order, or use any subcontractor without prior written consent of DAF. Any attempted delegation or assignment shall be void. All amounts due or to become due from DAF are subject to setoff by DAF for any claim arising out of this or any other contract between the parties.
9. PRICES: The prices in this order include all applicable federal, state and local taxes and all shipping costs, duties and other charges. If a price is specified in this order, no increase in price may be charged by Seller to DAF without the written consent of DAF. If no price is specified in this order, the goods or services shall be billed at the price last quoted to DAF or the prevailing market price, whichever is lower. If prices in effect at acceptance of this Order are reduced prior to the final delivery or completion of performance, or if Seller quotes lower prices to other purchasers for the same or comparable goods/services in the same quantities before the final delivery or completion of this order, Seller agrees to charge DAF the lower prices on the whole of this contract.
10. WARRANTIES: Seller warrants that all goods and services (i) shall be free from defects in material and manufacture; (ii) shall comply with the specifications or samples furnished by Seller and (iii) if of Seller’s design, shall be free from defects in design. Seller warrants its good and marketable title to all goods, which goods shall be of merchantable quality and fit for the purposes intended, whether express or implied. These warranties shall survive delivery, inspection, acceptance or payment by DAF, and shall run to DAF, its successors, assigns, customers and any third parties. If any goods or services provided are defective or hazardous in any respect whatsoever, Seller will defend, indemnify and hold DAF harmless from any and all losses, claims, costs (including counsel fees and increased Workers’ Compensation premiums) and damages (including incidental and consequential damages) that DAF sustains or is liable for in whole or part because of a defect, whether resulting from injuries to persons or property, and whether liability is based on contract, tort, strict liability or otherwise.
11. WORK AT DAF’S PREMISES: In the event this Order covers construction work, the installation of machinery or equipment or the performance of services at the premises of DAF, Seller shall defend and save DAF harmless against (i) all claims of employees and agents of Seller, including for compensation payable under the Workers’ Compensation Act of each state in which the work or services covered by this Order is performed and (ii) for and against any and all liability, loss, outlay and expense resulting from any accident or act of omission or commission of any employee or agent of Seller while engaged in the performance of the work covered by this Purchase Order.
12. PATENTS: Seller agrees to defend, indemnify and save DAF harmless from and against any and all (i) claims for infringement of any patent, trademark, copyright or industrial design covering any goods purchased hereunder or their use. DAF may participate through its own counsel in any suit or proceeding relevant to such claim and (ii) losses of whatever nature incurred as a consequence of injunctions against the sale, use or resale of any articles purchased under this Purchase Order. DAF may terminate this Order if aclaim of infringement, is made whether asserted against DAF or Seller and regardless of its validity, and damages to DAF after such termination, shall be calculated in the same manner as damages for non-delivery, in addition to the indemnities granted herein.
13. DAF DESIGNS: If this Order is for machinery, equipment, and/or manufacturing apparatus, the development or design of which is the concept of or is paid for by DAF, all patent rights shall automatically be the exclusive property of DAF, and Seller shall cooperate with DAF in obtaining all patents for DAF, and do all things necessary to perfect title to such patents in DAF.
14. SUPPLEMENTARY INFORMATION: Any specifications, drawings, instructions, engineering notices, or technical data referred to in this Order shall be deemed to be incorporated herein by reference. In case of any discrepancies or questions, DAF’s interpretation shall govern.
15. NONDISCLOSURE AND DAF’S PROPERTY: All drawings, specifications, patterns, information or data furnished by DAF or developed by Seller under this Order (“Information”) shall be DAF’s exclusive property, used by Seller only for DAF’s work, kept confidential, and returned promptly at DAF’s request. Seller shall not disclose Information to third persons except as necessary for performance, and then only after such third party has agreed in writing to keep Information confidential. All equipment or tools furnished to Seller by DAF or made by Seller for performance of this Order, and any replacements thereof, shall be the property of DAF. Such property shall be adequately identified as DAF’s property and shall be safely stored separate and apart from Seller’s property. Seller shall not use such property except in filling DAF’s orders. All risk of loss or damage to property furnished by DAF, other than ordinary wear and tear, shall be upon Seller until the same has been redelivered to DAF, and Seller shall maintain insurance at least equal to its replacement value. The obligations of this clause shall survive the cancellation, termination, or completion of this order.
16. TERMINATION: DAF may terminate this Order in whole or in part by written notice. If, this Order is terminated for DAF’s convenience and Seller is in full compliance with the conditions of this Order, any claim by Seller shall be settled on the basis of reasonable costs it has incurred in the performance hereof prior to the receipt of the notice. If however, Seller (i) has breached any condition of this Order, (ii) is insolvent by any test, (iii) is the subject of any proceeding voluntary or involuntary, in bankruptcy, or (iv) appoints or suffers the appointment of a trustee, receiver or assignee for the benefit of creditors, Seller shall not be entitled to any costs, and DAF shall have against Seller all remedies provided at law or equity. IN NO EVENT WILL DAF BE LIABLE FOR INDIRECT, INCIDENTAL, or CONSEQUENTIAL DAMAGES.
17. CUMULATIVE RIGHTS AND REMEDIES: All rights and remedies shall be cumulative and in addition to any other rights and remedies provided at law or equity.
18. WAIVER: A waiver of any failure to carry out any condition, term or part of this Order shall not be a waiver with respect to any recurrence of such failure or with respect to a failure to carry out any other condition, term or part.
19. DISCOUNTS: If discounts are offered by Seller for payment of the contract price within a specified time period, such period shall not begin to run until the later of (i) the receipt by DAF of Seller’s invoice or (ii) delivery of the goods or performance of the services; provided, however, such period shall not begin to run with respect to goods delivered early until the date specified for delivery.
20. SOLE AGREEMENT: This Order supersedes and cancels any previous understanding or agreement, written or implied, between the parties relating to the goods and/or services covered. It expresses the complete and final understanding of the parties in respect thereto, and may not be changed except in writing signed by authorized representatives of both parties.
21. COMPLIANCE WITH LAW: Seller certifies that in performing DAF’s order, it will comply with all applicable statutes, rules, regulations, orders as amended (“Laws”), including all Equal Employment Opportunity Laws, in effect or later enacted, of the United States of America and any state or political subdivision, including but not limited to Laws pertaining to labor, wages, hours, employment conditions, price ceilings and the Fair Labor Standards Act. Seller agrees to treat applicants and employees without regard to race, religion, gender, color, national origin, age, disability, genetic information or covered veteran status. Seller agrees to take positive action to employ, promote and treat qualified individuals with disabilities without regard to their physical or mental disability, covered veterans, minorities and females where underutilized as compared to the local workforce. Positive action includes all human resources decisions: demotion, transfer; recruitment, advertising; layoff, termination; pay rates, other compensation; and training. See: Executive Order 11246, Vietnam Era Veteran’s Readjustment Act, Rehabilitation Act of 1973 § 503, American Recovery and Reinvestment Act of 2009 and other Laws.
22. CONTRACT: These terms, when accepted, shall be a contract made in Connecticut and governed by the laws of that State.