following terms and conditions shall be part of the purchase order identified
on the face hereof
(the buyer being herein called "Warner Electric").
1. ACCEPTANCE: Acceptance of this order and each of its terms and conditions
will be evidenced by the Seller's execution of the acknowledgment copy
hereof, or by the Seller's commencement of performance or shipping.
Unless otherwise specifically indicated on the face hereof, this order
is not an acceptance of any offer, quotation or proposal made by Seller,
and any reference thereto is made solely for the purpose of specifying
prices and the nature and description of the goods and services ordered.
This order is conditional upon acceptance of the terms and conditions
herein contained. Any other additional or different terms shall be deemed
objected to by Warner Electric without need of further notice of objection,
and shall be of no force or effect. No variations in the delivery schedule,
price, quantity, specifications or other provisions of this order, and
no new additional or different terms or provisions, will be binding
on Warner Electric unless agreed to in writing and signed by Warner
Electric's Purchasing Agent or other authorized representative.
An acknowledgment of this order must be returned promptly to Warner
Electric. Shipment and/or delivery must be made to agree with the schedule
as recorded on the face of this order or if the Seller cannot meet Warner
Electric's requested schedule, Seller must so state on the acknowledgment
indicating thereon the best schedule that can be met, which Warner Electric
may accept or reject.
SCHEDULE: Unless otherwise agreed to in writing, Seller shall not make
material commitments or production arrangements in excess of the amount
ordered or in advance of the time necessary to meet Warner Electric's
delivery schedule. It is the Seller's responsibility to comply with
this schedule, but not to anticipate Warner Electric's requirements.
Goods shipped to Warner Electric in advance may be returned to Seller
at Seller's expense or payments of invoices may be withheld until the
required delivery dates, unless specific authorization is granted by
Warner Electric for advanced delivery. If payment of invoices are withheld,
they will be discounted in the usual way, effective from the required
shipments of material where no partial shipment is specified may be
returned to the Seller at Seller's expense unless specific authorization
is granted by Warner Electric for partial delivery or payment of invoices
may be withheld until order is complete. Discount terms will be calculated
from the date the final invoice is received or from the date material
is received completing the order, whichever is later.
This order may not be filled at prices higher than quoted or heretofore
charged, or at price in effect at time of shipment, without the written
consent of Warner Electric. The Seller warrants that no prices or other
charges to Warner Electric hereunder will be in violation of any price
control regulation of the United States Government. No charges of any
kind, including charges for boxing or cartage will be allowed unless
specifically authorized by Warner Electric in writing. Transportation
charges on materials or articles furnished under this purchase order,
shall be in accordance with the carrier's tariffs lawfully in effect
at the time shipments are moved or the services performed.
The prices stated herein include all present and future taxes applicable
to this order, and the same shall be paid by Seller, excepting only
that the State Sales Tax is designated on the face hereof will be paid
by Warner Electric if the "Not for Resale" box is marked on
the face of this order.
Until delivery to Warner Electric, the Seller shall assume the risk
for Warner Electric's equity in the materials to be supplied under the
terms of this Purchase Order. The usual forms of "all risk"
insurance shall be maintained in an amount at least equal to their value
and in no event less, at any time, than the aggregate of all the amounts
paid the Seller on account thereof. Such insurance policies shall provide
that all claims for losses thereunder shall be paid to Warner Electric
or the Seller, as interest may appear, and shall be delivered to Warner
Electric upon request. If this order deals with construction, repair,
or maintenance (including painting) or any building, equipment or machinery
located on the premises of Warner Electric, or any other activity requiring
the presence of Seller, its employees, agents or subcontractors, on
the premises of Warner Electric, the Seller waives as against Warner
Electric, any claims or causes of action for damages or injury to persons
or property arising out of its performance of the work hereunder or
of its presence on the premises of Warner Electric, and Seller shall
(i) maintain and carry Public Liability, Workmen's Compensation, and
Employer's Liability Insurance covering all employees engaged in the
performance of the work and all other persons who are on the property
of Warner Electric at the invitation of the Seller: (ii) indemnify,
defend and save Warner Electric harmless from and against all loss,
damage, liability, claims, causes of action, or liens arising out of
injury (or death) to person or property resulting directly or indirectly
from Seller's performance of the work or from the presence of Seller,
its employees, agents or subcontractor, on the premises upon which the
work is done: and (iii) indemnify Warner Electric against any loss or
claim arising from the workmanship or the material furnished by the
AND WARRANTY: The Seller expressly warrants to Warner Electric and to
Warner Electric's successor in interest to the goods that all materials,
articles, or work covered by this order will conform to, and comply
with the terms for this order and to the applicable specifications and
standards incorporated herein, will be suitable for the intended use,
if such use is disclosed to Seller or is otherwise known to Seller,
will be of merchantable kind and will be free from defects. The Seller
agrees all materials or articles or work or any part thereof found defective
within one year after delivery to Warner Electric or to its customer,
whichever be later, will be replaced, without charge, if requested by
Warner Electric. The foregoing warranty shall apply to all repairs or
replacements and shall extend for one year from completion of such repair
or replacement. Such warranties are in addition to any other warranty,
express or implied, or service guarantee of Seller.
All material and articles will be new unless otherwise specified, and
all materials and workmanship shall be subject to inspection and approval
by Warner Electric, its assigned Inspection Agencies and/or the Government.
Final inspection will be made after receipt by Warner Electric; if rejected,
the goods will be held for disposition at the Seller's risk and any
expense or payment on account thereof will be promptly refunded by the
Seller without prejudice to any other rights of Warner Electric under
warranties or otherwise. Any inspection or approval at the Seller's
plant or elsewhere during or after manufacture, whether or not such
inspection or approval be provided for by the terms of this purchase
order, shall be provisional only, and shall not constitute final acceptance
or be construed as a waiver of the foregoing right of inspection and
approval or rejection after receipt of the materials or articles by
Electric PROPERTY: Warner Electric's patterns, specifications, drawings,
tools, and dies shall not be used for any purpose other than supplying
Warner Electric requirements without Warner Electric's consent and shall
remain Warner Electric's property, shall be kept in good condition by
Seller, and upon request shall be promptly delivered to Warner Electric.
ASSIGNMENT OR SUBCONTRACTING: This order, or any rights thereunder,
may not be assigned or hypothecated, and none of the work which Warner
Electric contemplates being performed by Seller shall be subcontracted
without Warner Electric's prior written consent: and, if and when subcontracting
is allowed, Seller shall continue to comply with, and be bound by, all
provisions of this order.
& REGULATIONS: Seller agrees to comply with all Federal, State and
local laws, ordinances, rules and regulations which may be applicable;
and, upon request, Seller shall certify to such compliance. Seller shall
manufacture the goods covered by this order so as to comply with the
FEDERAL OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970 and with the standards
promulgated pursuant thereto, if and to the extent applicable.
warrants that the articles ordered were, or will be, produced, and all
services will be performed, in compliance with the FAIR LABOR STANDARDS
ACT OF 1938, as amended. If and to the extent applicable, Seller shall
comply with the provisions of, and the rules and regulations issued
pursuant to: Executive Order #11141, Non-Discrimination Because of Age,
Executive Order #11246, Non-Discrimination in Employment, Executive
Orders #11458 and #11625. Utilization of Minority Business Enterprises,
Executive Order #11701, Listing of Job Openings for Veterans; and the
Rehabilitation Act of 1973. Employment of Handicapped Persons; as any
of the same have been, or may be, revised or amended from time to time.
Every provision of the applicable Executive Orders, rules, regulations
of laws which is required to be incorporated in contracts of this kind
is incorporated herein by reference and shall have the same force and
effect as if herein set forth in full.
The Seller warrants that at the time of delivery to Warner Electric
of the articles called for by this order and/or at the time payment
is made by Warner Electric on account of such articles or on account
of any material, equipment, supplies, or other property to be incorporated
in the articles, or on account of any work, labor or services, there
shall be no liens or rights in rem of any kind lying or attached upon
or against any such articles and materials; and as a condition precedent
to any payment the Seller shall, upon Warner Electric's request, furnish
such affidavits and other documents and agreements with respect to liens
and rights in rem as Warner Electric may require.
TRADEMARKS AND COPYRIGHTS: Unless otherwise agreed in writing, the Seller
shall defend at Seller's expense and pay costs and damages awarded in
any suit brought against Warner Electric or its customers based on the
use or sale of an article constituting actual or alleged infringement
of a United States patent, trademark or copyright.
The Seller agrees to indemnify and hold Warner Electric free and harmless
from any and all claims for damages caused to persons or property as
a result of defects in the items covered by this order; and from any
and all liability, loss or damage arising out of any act or omission
of Seller, or its agents or employees, or out of Seller's failure to
comply with any applicable laws, or governmental regulations, or with
any of these terms and conditions.
OF DELAYS: Whenever any actual or potential cause delays or threatens
to delay performance of this order, Seller shall immediately notify
Warner Electric in writing. Such notice shall include all relevant information
concerning such cause or delay and its background. Seller shall keep
Warner Electric advised during the period such actual or potential cause
exists of its effect on the schedule or work and shipments or deliveries
and the measures being taken to remove it.
Warner Electric may at any time, by written order, without notice to
any surety, make changes or additions in or to drawings, designs, specifications,
instructions for work, method of shipment or packing, or place of delivery;
and Seller shall forthwith proceed with its work under the contract
as changed. If any such change causes an increase or decrease in the
cost of, or the time required for, performance under the contract, Seller
shall notify Warner Electric in writing immediately and an appropriate
equitable adjustment will be made in the price, or time of delivery,
or both, by written modification of the contract. Seller's failure to
assert a written claim for adjustment within 30 days after Seller's
receipt of Warner Electric's change order shall constitute a waiver
of such claim.
(a) All shipping or delivery dates in this order are firm. Time is of
the essence in the performance of this order, and no acts of Warner
Electric shall constitute a waiver of this provision. (b) Warner Electric,
without waiving any other rights, reserves the right to cancel this
order, in whole or in part, by written or telegraphic notice, without
liability, except for goods previously delivered and accepted. Subject
to setoff of any claim Warner Electric may have against Seller, if:
(1) Seller fails to deliver or perform as specified, or if Seller breaches
any of the terms and conditions or warranties hereof: or (2) Seller
ceases to conduct its operations in the normal course of business (including
inability to meet its obligations as they mature), or any proceeding
is brought against or instituted by Seller under bankruptcy or insolvency
laws, or a receiver for Seller is appointed or applied for, or an assignment
for the benefit or creditors is made by Seller.
(c) Warner Electric may, at any time, terminate this order, in whole
or in part, for its convenience upon written or telegraphic notice to
the Seller, in which event, upon receipt of such notices, unless otherwise
directed by Warner Electric, Seller shall immediately discontinue all
work and the filling of orders for materials and supplies in connection
with the performance of this purchase order, and shall proceed to cancel
promptly all orders outstanding; and Warner Electric shall negotiate
with the Seller an amount to be paid in full settlement for the reasonable
and necessary expenses incurred directly incident to this order up to
the date of cancellation. Warner Electric, however, shall not be liable
for any loss of profits on this order or the portion thereof so cancelled.
If such cancellation is caused by termination of a government contract,
Warner Electric will reimburse the Seller to the extent that reimbursement,
if any, received by Warner Electric from the government on account of
termination of its contract is attributable to this order.
A separate invoice for each shipment, bearing the Warner Electric order
number, must be mailed promptly. When a shipment made by another concern
is invoiced by Seller, the invoice, and other papers, must bear the
name of the shipper and point from which shipment originated.
Payment of net and discount invoices will be calculated from the date
acceptable invoices conforming to the order are received at Warner Electric's
designated offices, or from the date of receipt of acceptable goods
at Warner Electric, whichever is later.
Unless otherwise instructed, the Seller shall prepay all transportation
and related shipping charges and shall itemize such charges on the invoice.
In the absence of specific routing instructions, shipments are to be
made "Best Way".
Electric's purchase order number and other identification specified
shall appear conspicuously on all documents, shipping notices, bills
of lading, packing lists, invoices and other papers, and on each package,
box, keg, bale, bundle or other type of container. Local and warehouse
shipments of steel and bar stock, and the like, must be marked or tagged
with name of shipper and shipping point to facilitate prompt identification
upon receipt. All goods shall be packaged and packed adequately to ensure
arrival at destination in an undamaged condition. All export shipments
must be boxed and contents rust proofed and otherwise protected to prevent
damage in transit and meet all export shipping requirements.
CONTRACT PROVISIONS: If indicated on the face hereof that the goods
or services covered by this order are for use by Warner Electric in
performing any U.S. Government Agency contract, or for performance of
a subcontract under such contract, then, and in that event, the Seller
agrees to perform in accord with, to abide by, and to comply with, all
of the applicable provisions of Title 48 of the Code of Federal Regulations
("CFR") relating to procurement by U.S. Governmental Agencies;
as in effect as of the date of the prime contract, including without
limitation the provisions incorporated by reference into this order,
in Attachment A hereto.
ACCOUNTING STANDARDS: When specifically set forth on the face of the
purchase order, Seller shall comply with Public Law 100-679, dated 1988,
and all of the rules, regulations and standards prescribed by the Cost
Accounting Standards Board, including Federal Acquisition Regulation
(FAR) Chapter 99. Seller agrees to indemnify and hold Warner Electric
free and harmless from any and all liability, loss or damage arising
out of failure of Seller, or Seller's subcontractors, if any, to comply
with said law, rules, regulations, or standards, as the same may be
revised or amended from time to time.
This purchase order and any documents incorporated herein by reference
supersede all prior understandings, transactions and communications,
or writings with respect to the matters referred to herein and constitute
the sole and entire agreement between the parties. Any representation,
promise, course of dealing, or trade usage, not contained or referenced
herein, shall not be binding on Warner Electric. No modifications, amendment,
rescission, waiver, or other change shall be binding on Warner Electric
unless agreed to in writing by Warner Electric. All warranties herein
shall be construed as conditions as well as warranties, and the warranties
and conditions herein contained shall not be deemed to be exclusive.
LAW: The rights and obligations of the parties shall be governed in
all respects by the laws of the State or Commonwealth in which this
purchase order is issued.