1. ACCEPTANCE: These Purchase Order Terms and Conditions are incorporated into each and every purchase order ("Order") issued by BUYER to VENDOR. The Order is BUYER'S purchase offer to VENDOR and does not constitute an acceptance by BUYER of any offer to sell, quotation or proposal of VENDOR. Any reference to such offer to sell, quotation or proposal is solely for the purpose of incorporating the description and specifications of the equipment, parts and/or related services (collectively "Equipment") being purchased by BUYER to the extent that such description and specifications of the Equipment contained therein do not conflict with the description and specification expressly set forth in the Order. Any additional or different terms or conditions contained in any acknowledgement of the Order by VENDOR shall be deemed objected to by BUYER without the need for further notice of objection and shall be of no effect nor in any circumstances binding upon BUYER.
2. PAYMENT AND INVOICE TERMS; SHIPMENT: Payment shall be made within thirty (30) days of BUYER's receipt and acceptance of VENDOR's invoice. BUYER shall be entitled, at all times, to set off any amount owing from VENDOR to BUYER against any amount due or owing to VENDOR with respect to the Order. VENDOR grants BUYER the right, at any time, to specify the method of transportation to be employed in conveying the Equipment. Timeliness of delivery is of the essence. If VENDOR delays in deliveries, VENDOR will ship express prepaid at BUYER's request, without additional expense to BUYER. If deliveries are delayed, VENDOR agrees to pay all damages caused by the consequence of such delay, and VENDOR agrees to accept return of all Equipment for which substitution has been made, at VENDOR’S expense, if BUYER so elects.
3. INDEMNITY; PATENTS; AND INSURANCE; RISK OF LOSS OR DAMAGE: VENDOR shall defend and indemnify BUYER, its affiliates, customers, vendees, lessees, transferees, contractors, and/or agents ("BUYER GROUP") against all damages, liabilities, claims, losses and expenses (including attorney's fees) arising out of, or resulting in any way from, any defect in the Equipment or from any act of omission of VENDOR, its agents, employees or representatives. VENDOR agrees, at its own expense, to defend any suit or action brought against BUYER GROUP arising from the sale, transfer or use of the Equipment for alleged infringement of patent or invention rights and to indemnify and save BUYER GROUP harmless from any damages, liabilities, claims, losses and expenses (including attorney's fees) paid or incurred by BUYER in connection with any such suit or action against BUYER GROUP, or any of them. VENDOR shall maintain such public liability insurance (including products liability, completed operations, contractor’s liability and protective liability), automobile liability insurance (including non-owned automobile liability) and worker’s compensation and employer's liability insurance in such amounts and consistent with industry standards as will adequately protect BUYER against such damages, liabilities, claims, losses and expenses (including attorney's fees). VENDOR agrees to submit certificates of insurance evidencing its insurance coverages when requested by BUYER. Risk of loss or damage to the Equipment shall pass to BUYER upon acceptance of delivery of the Equipment by BUYER. During the period that VENDOR bears the risk of loss or damage, VENDOR shall, by insurance or otherwise, bear the complete risk of loss or damage to the Equipment, no matter how caused and shall hold harmless BUYER from any such risk or liability.
4. MODIFICATIONS; FORCE MAJUERE; TERMINATION: No modifications in or to the specifications, description, price or the contract provisions shall be effective against BUYER except upon approval thereof in writing by BUYER'S duly authorized representative. Such agreed upon modifications shall be expressly detailed in the Order. Acceptance by BUYER of any such modifications with respect to one Order shall not constitute an acceptance of any different or additional terms or conditions governing future Orders. BUYER shall in no way be liable for any delay or damages arising out of any conditions or occurrences beyond BUYER'S control, and BUYER shall have the right to suspend deliveries or payments therefor during the period of such conditions or delay without liability whatsoever for any damages or additional costs arising therefrom. BUYER may, at any time, terminate the Order in whole or in part for its convenience upon written notice to VENDOR in which event BUYER shall have no further liability to VENDOR.
5. PROPRIETARY INFORMATION: BUYER may disclose to the VENDOR, either directly or through others, certain information which BUYER considers to be confidential. VENDOR agrees that any such disclosures made by BUYER, directly or indirectly, will be kept in strict confidence by the VENDOR, and will not be used or disclosed by the VENDOR without the prior written consent of BUYER. The foregoing obligations shall not apply if the information disclosed to VENDOR (1) is or becomes generally available to the public through no act or failure to act by VENDOR; (2) was previously known to VENDOR prior to VENDOR'S receipt of BUYER'S disclosure hereunder, as evidenced by VENDOR'S prior written records; or (3) is subsequently disclosed to VENDOR on a non-confidential basis by a third party not having a confidential relationship to BUYER with respect to said information.
6. GOVERNMENT REGULATIONS: The VENDOR, by accepting the Order, agrees that Equipment furnished on the Order was manufactured and is being sold in accordance with all applicable laws, acts, orders and regulations of the federal, state and local governments, and all applicable codes and industry standards. In addition, VENDOR hereby certifies that any Equipment covered by the Order was produced in compliance with all applicable requirements of the Fair Labor Standards Act, as amended, and of regulations and orders issued thereunder, and VENDOR warrants that the Equipment to be furnished hereunder complies in all respects with the requirements of the Occupational Safety and Health Act of 1970, as amended.
7. WARRANTY: VENDOR expressly warrants that all Equipment covered by the Order shall conform to the specifications, drawings, or other description upon which the Order is based, shall be fit and sufficient for the purpose intended, merchantable, of good material and workmanship, and free from defects in material and design. Inspection, acceptance or use of the Equipment furnished hereunder shall not affect VENDOR's obligation under this warranty; and such warranty shall survive inspection, test, acceptance and use. This warranty shall run to BUYER, its affiliates, and their respective successors, assigns, employees, agents, customers, and the users of the Equipment. VENDOR agrees to replace or correct defects in any Equipment not conforming to the foregoing warranty promptly, without expense to BUYER, when notified of such nonconformity by BUYER. In the event of failure by VENDOR to correct defects in or to replace non-conforming Equipment promptly, BUYER, after reasonable notice to VENDOR, may make such corrections or replace such Equipment and charge VENDOR for the costs incurred by BUYER thereby. VENDOR shall be responsible for all of BUYER's consequential damages, including loss of use of Equipment and attorney fees, resulting from any breach of this warranty.
8. APPLICABLE LAW; JURISDICTION AND VENUE; GENERAL PROVISIONS; WAIVER; NON-ASSIGNMENT: The Order shall be construed, interpreted and enforced under the laws of the State of Ohio, and shall be determined in accordance with the contents and objectives of the Uniform Commercial Code as amended and in effect in the State of Ohio, except as said Code is modified by the terms hereof. VENDOR agrees that exclusive jurisdiction to bring and maintain any action or proceeding arising out of or related to the Order and/or Equipment shall be brought in Cuyahoga County, Ohio, or in the United States District Court for the Northern District of Ohio. In the event that an action is commenced in any other jurisdiction, VENDOR agrees to the transfer of such action to the court of proper jurisdiction and to reimburse BUYER for all fees (including reasonable attorney fees) and expenses in connection with the transfer. Any provision of the Order that conflicts with any statute or rule of law in any jurisdiction wherein it may be sought to be enforced, or that is otherwise deemed to be invalid and/or unenforceable, shall not operate to invalidate the remaining provisions hereof. The Order shall inure to the benefit of and shall be binding upon the parties and their respective successors and permitted assigns. Captions provided in these Purchase Order Terms and Conditions are inserted for convenience only and shall not be considered a part of the Order. Waiver of any breach by VENDOR of the terms of the Order or contained herein shall not constitute waiver of any other breach of the same or of any other provision. BUYER'S remedies shall be cumulative, and any remedies herein specified do not exclude any remedies allowed by law. All warranties, express or implied, in fact or in law, and all remedies therefor shall continue to operate in favor of BUYER, unless expressly waived in writing, and a waiver in one instance shall not extend to other instances. Assignment by VENDOR of the Order or any part thereof without the written consent of BUYER shall be void.
9. INTEGRATION; EXECUTION: There are no understandings between the parties hereto as to the subject matter of the Order other than as herein set forth. All previous communications concerning the subject matter of the Order between the parties hereto either verbal or written, are hereby abrogated and withdrawn, and the Order constitutes the whole of the agreement between the parties hereto. Delivery of the Equipment or any other performance by VENDOR or its representative shall constitute VENDOR's performance under, and acceptance of all terms and conditions of the Order, including these Purchase Order Terms and Conditions, and shall conclusively evidence that the Order is in full force and effect.