Vendor Standard Terms And Conditions
PURCHASE ORDER TERMS AND CONDITIONS
- Terms. The terms and conditions of the Purchase Order (including those on the initial page(s) of the Purchase Order and those set forth below) represent the entire agreement between Seller indicated in the Purchase Order and Heritage Plastics, Inc., as Buyer. Acceptance is limited to the terms and conditions of the Purchase Order, and no purported revisions of, additions to, or deletions from the Purchase Order (whether in Seller's proposal, invoice, acknowledgment or otherwise), shall be effective and are rejected in advance, and no local, general or trade custom or usage shall be deemed to modify the Purchase Order, unless expressly agreed to in writing by Buyer's authorized representative. The delivery of any goods or the furnishing of any services pursuant to the Purchase Order shall constitute acceptance by Seller of the Purchase Order subject to, and in strict accordance with, all of its terms and conditions. To the extent that terms appearing on the initial page(s) of the Purchase Order are inconsistent with those set forth herein, the terms on the initial page(s) shall control. Any reference on the initial page(s) of the Purchase Order to Seller's proposal shall not include any of Seller’s terms and conditions attached to or referred to therein.
- Specifications. All goods and services furnished pursuant to the Purchase Order shall strictly conform to the specifications, descriptions and warranties set forth in the Purchase Order. No change in the Purchase Order shall be made, except upon written agreement of Buyer.
- Time and Place of Delivery; Buyer's Inspection; Acceptance. Time is of the essence of the Purchase Order. Delivery will be made as specified on the initial page(s) of the Purchase Order. Buyer reserves the right to reject goods and to cancel all or any portion of the Purchase Order in the event of failure to deliver at the time and place specified. Buyer's acceptance of any part of a shipment not delivered as specified herein shall not obligate Buyer to accept the remainder of that shipment or any future shipments. If Seller is required to provide Material Safety Data Sheets, they will be delivered to Buyer prior to delivery of any goods under the Purchase Order. All goods shall be received subject to Buyer's inspection and acceptance, and subject to Buyer's right to reject and return at Seller's expense goods which fail to conform strictly to the requirements of the Purchase Order. All goods are subject to inspection and testing by Buyer.
- Extension of Time of Delivery. Buyer shall not be liable to Seller for any failure of Buyer to take any delivery hereunder when due, if occasioned by any event beyond Buyer's reasonable control, including, without limitation, fire, flood, earthquake, lightning or other acts of God; acts of, or compliance with the directions of, civil or military authority; pandemic, wars; riots, insurrections; sabotage; accident; embargo; strike or other labor trouble; interruption of or delay in transportation; shortage or failure of supply of materials; or equipment breakdown. At Buyer's option, the time for delivery hereunder shall be extended to the extent of the delay occasioned by any such circumstance.
- Risk of Loss. Risk of loss of any goods sold hereunder shall transfer to Buyer at the time and place of delivery indicated in the Purchase Order.
- Shipment. Goods must be shipped by the particular route, method and carrier as stated in the Purchase Order. In the event that Seller fails to ship goods on or before any scheduled shipping date, Buyer shall have the right to specify a more rapid method of shipment than was specified originally and Seller shall bear, at no additional cost to Buyer, any increased costs of shipment.
- Packing, Marking, and Invoicing. A packing list shall be included with each shipment. Seller's invoices, together with original bills of lading, properly signed by carrier's representative, shall be forwarded to Buyer not later than the day after shipments are made. Individual invoices shall be issued for each separate shipment. Buyer shall not be charged for packaging, boxing, crating or cartage. All invoices, packing lists, bills of lading, and each separate package within each shipment shall clearly reference Buyer's Purchase Order number and Seller's packing slip number. Partial shipments must be identified as such on the shipping memoranda and invoices.
- Payment. Payment to Seller may, at Buyer’s option, be made by electronic funds transfer (EFT). Unless otherwise indicated on the initial page of the Purchase Order, payment terms are 1%/15, net 60, following receipt and acceptance of the goods and receipt, in proper form and substance, of all documentation required by the Purchase Order. The Purchase Order shall not be filled at prices higher than last quoted or charged by Seller, except as expressly agreed by Buyer.
- Seller's Warranties. Seller expressly warrants that for a period of four (4) years after Buyer's acceptance of the goods or services hereunder, or for such longer period as may be expressly provided in the Purchase Order or under applicable law, all goods and services, as applicable, covered by the Purchase Order: (a) will strictly conform to Seller's specifications, drawings, samples and other written materials and descriptions (or to the extent the goods were made to Buyer's specifications and drawings as set forth or referred to in the Purchase Order, that the goods strictly conform with those specifications and drawings); (b) will be free from defects in design, material and workmanship; (c) will be of merchantable quality and suitable for the particular purposes intended, whether express or reasonably implied; (d) will bear all warnings, labels, and markings required by applicable laws and regulations; (e) to the extent the goods are subject to laws prohibiting adulteration or misbranding, none of the goods covered hereby are adulterated or misbranded within the meaning of such laws as of the date of delivery to Buyer; (f) all services have been performed in a good and workmanlike manner; (g) have been produced, sold, delivered or rendered to Buyer in compliance with all applicable laws and regulations, and (h) are free from any liens or security interests.
- Buyer's Remedies. Buyer's acceptance of all or any part of the goods or services provided hereunder shall not be deemed a waiver of the failure of such goods or services to conform to all of the warranties set forth in Section 9. Buyer retains the right to cancel any portion of the remaining order, to reject any portion of the goods or services delivered, or to revoke acceptance as to any portion of the goods or services accepted, and return such goods to Seller and to recover (a) the purchase price, (b) any excess costs of cover, and (c) damages caused by any breach of any of Seller’s warranties regarding the goods supplied by Seller (whether incurred by Buyer and/or Buyer’s customers), including (i) manufacturing costs, (ii) costs of removal or recall, (iii) transportation, (iv) custodial expenses, (v) destruction of products, and (vi) injury to person or property, all in addition to Buyer's other remedies under the Purchase Order or applicable law.
- Patent, Copyrights, Trademarks. Seller warrants that the goods furnished under or used in connection with the Purchase Order (except those furnished according to Buyer's specific design), do not and will not infringe any patent, copyright, trademark, trade secret or other proprietary right of any third party. If any claim, suit or proceeding is made or instituted against Buyer alleging any such infringement, Seller shall indemnify, defend and hold Buyer harmless from and against any damages, liabilities, judgments, costs and expenses (including without limitation reasonable attorney's fees) it may incur in connection with any such claim, suit or proceeding. In the event that the goods or Buyer's use is held in any suit or proceeding to constitute an infringement, or if Seller determines that there is a substantial risk of a finding of such infringement, Seller agrees, as appropriate, and at its expense to: (a) procure for Buyer, at no expense to Buyer, the right to continue using the goods, (b) replace the goods with equivalent goods that meet the requirements of the Purchase Order and that do not infringe any such rights, or (c) modify the goods so that they become non-infringing.
- INDEMNIFICATION. To the fullest extent permitted by law, Seller agrees to indemnify, defend, and hold harmless Buyer, its affiliates, and their respective directors, officers, employees and agents (the "Indemnified Parties") from and against all claims, demands, causes of action, losses, costs and expenses (including without limitation reasonable attorneys' fees and costs of defense) (collectively, "Losses") arising out of or incident to Seller's performance hereunder or breach of Seller’s warranties, in each case regardless of whether or not caused in part by the negligence or other fault of any Indemnified Party hereunder; provided that Seller shall not be liable for Losses to the extent caused by the sole negligence or willful misconduct of any Indemnified Party.
- Labor, Work and Services; Insurance. In supplying any services hereunder, Seller warrants that it is, and undertakes such performance as, an independent contractor, with sole responsibility for the payment of all federal and/or state unemployment insurance, social security and/or other similar taxes incurred hereunder. Any performance by Seller under the Purchase Order on Buyer's premises shall be in full compliance with Buyer's safety and other rules and procedures and with all federal and state laws and regulations regarding workplace safety, including without limitation, laws pertaining to occupational safety and health. Seller shall, at its expense, maintain the following minimum insurance coverages on an "occurrence" basis (and not on a "claims made" basis):
|Kind of Insurance
|Commercial General Liability
including Contractual Liability
|Combined Single Limits:
$2,000,000 Products/Completed Operations Aggregate
If Seller will use a vehicle in connection with its furnishing of goods or services, Seller will also maintain Automobile Liability insurance with a per accident limit of not less than $1,000,000 for all owned, non-owned, hired and permissive use vehicles.
Seller shall furnish to Buyer certificates of insurance showing the above coverages with an insurer with an AM Best rating of “A VIII” or better and providing for at least thirty (30) days prior written notice of cancellation or modification resulting in a reduction below the required minimum coverages and naming Buyer as an additional insured under Commercial General Liability. If Seller fails to furnish such certificates or maintain such insurance, Buyer shall have the right to cancel the Purchase Order immediately. Seller, for itself and its insurers, hereby waives subrogation against Buyer, and Seller agrees that, with respect to claims against Buyer arising out of Seller's performance hereunder, Seller's insurance shall be primary and Buyer's insurance shall be excess and non- contributory. Seller's obligations to maintain such insurance shall in no way limit the liability or obligations assumed by Seller hereunder.
- Laws and Regulations. All goods furnished or services rendered pursuant to the Purchase Order shall be produced, sold, delivered, or rendered to Buyer in compliance with all applicable laws and regulations. Seller agrees to provide promptly to Buyer all information (including completed tax forms and certificates) required by any federal, state or local laws.
- Termination. Buyer may at any time, without cause, terminate the Purchase Order in whole or in part upon written notice to Seller. In such event, Seller shall be entitled to a reasonable termination fee consisting of a percentage of the Purchase Order price reflecting the percentage of the work, goods delivered or services properly performed prior to termination. Payment of such termination fee shall be Seller's sole remedy. Upon Buyer's request, Seller shall preserve, protect and deliver to Buyer, at Buyer's expense, goods on hand, work in progress, and completed work.
- Assignment and Set-Off. Seller shall not assign its rights or delegate its performance hereunder, nor any interest herein, without Buyer's prior written consent and any attempted assignment or delegation without such consent shall be void. Buyer shall be entitled at all times to set-off any amount owing from Seller to Buyer, whether under the Purchase Order or otherwise, against any amounts otherwise payable to Seller.
- Confidentiality. Seller and its directors, officers, employees and agents shall not disclose to any third party any information pertaining to the goods provided or services performed hereunder, or pertaining to Buyer's business or operations which Seller obtains or has access to in connection herewith, without the prior written consent of Buyer.
- No Waiver of Defaults. No failure by Buyer to enforce at any time any of the terms or conditions of the Purchase Order shall constitute a waiver thereof or in any way impair Buyer's right at any time to avail itself of such remedies as it may have to enforce such terms or conditions. No waiver by Buyer hereunder will be effective unless in writing and signed by Buyer.
- Survival; Remedies Cumulative. All agreements and representations of Seller herein (including those regarding, confidentiality, indemnification and warranties) shall survive delivery of the goods and/or services and final payment hereunder, or any earlier termination hereof. All of the rights and remedies available to Buyer hereunder are in addition to, and not in limitation of, the rights and remedies otherwise available at law or in equity.
- Severability. Any provision of the Purchase Order that is unenforceable in any jurisdiction shall be ineffective to the extent of such unenforceability (but shall be enforced to the maximum extent permissible) without invalidating the remaining provisions hereof.
- Governing Law. The Purchase Order shall be governed by the laws of the State of Texas, without giving effect to its principles of conflicts of law. The parties hereto agree that all actions or proceedings in any way, manner or respect, arising out of or from or related to the Order shall be litigated only in courts having situs within the city of Houston, Harris County, Texas. Each party hereby consents and submits to the jurisdiction of any local, state or federal court located within Harris County, Texas and waives any right such party may have to transfer the venue of any such litigation.
- Attorneys’ Fees. If either party brings an action or other proceeding to enforce or interpret this Agreement, Buyer shall, if it is the prevailing party in that action or proceeding, be entitled to recover from Seller all such fees, costs and expenses (including all court costs and reasonable attorneys’ and paralegals’ fees) suffered or incurred by Buyer in the pursuit or defense of such action or proceeding.
- Notices. Any notice or other communication under the Purchase Order must be in writing and will be deemed given when it is delivered in person or sent by electronic transmission (with proof of receipt at the number or address to which it is required to be sent), on the third business day after the day on which it is mailed by first class mail, or on the second business day after being sent by Federal Express, United Parcel Service or other express delivery service with at least second business day delivery, to the last known address of the recipient.
- Headings. The section and paragraph headings and titles herein are for convenience of reference only and shall not be deemed a part of the Purchase Order.
Effective Date: April 25, 2022