- TERMS AND ACCEPTANCE. These Purchaser Order Terms and Conditions (the "Terms and Conditions”) shall govern all purchase orders (each, a "Purchase Order") placed by Cleaner’s Supply, Inc. (the “Purchaser”) to a supplier (the "Seller") for all goods and materials. Seller’s acceptance of a purchase offer from Purchaser, whether by acknowledgment or by filling this order, in whole or in part, is expressly limited to the exact terms conditions, and instructions contained in these Terms and Conditions. It is a condition of every purchase by Purchaser that any deletion, addition, alteration, or amendment of the Terms and Conditions, whether contained in Seller’s acknowledgment, invoice packing list, or delivery slip, shall have no force or effect and shall not constitute any part of the contract of purchase and sale without the Purchaser’s express written approval. The Terms and Conditions contain the entire agreement of the parties, and failure of either party to enforce any of its rights under the Terms and Conditions shall not constitute a waiver of such rights or any other rights under the Terms and Conditions.
ACKNOWLEDGMENT. All notices regarding acknowledgment of the Purchase Order should be adhered to when specified in the Purchase Order.
BILLS OF LADING/INVOICES. All bill of lading and express receipts should be to “Ship to” address on the front of the Purchase Order. All invoices should be sent to Purchaser’s invoice address shown on the front of the Purchase Order. Seller must invoice for each Purchase Order and SHALL NOT invoice prior to making shipment. Invoices MUST contain the Purchaser’s Purchase Order number to receive consideration for payment. Discounted invoices will be paid in accordance with the terms stated in the Purchase Order. The discount period will commence with the receipt of goods or the receipt of the invoice whichever is later. Payment of Seller's invoice is subject to adjustment by Purchaser for miscalculation, overshipment, shortage and rejection.
PACKING. The Purchaser’s Purchase Order number MUST appear on the outside of each package and all packing slips, invoices, and related paper. Each package shall contain an itemized packing slip indicating partial or complete shipment, part number(s), and number of cartons or containers. Omitted or incomplete packing slips may cause delay in payment of the invoice. Each package shall be properly prepaid for shipment so as to secure the lowest transportation and insurance rates and to meet carrier’s requirements unless otherwise specified.
EXTRA CHARGES. Unless specifically stated in the Purchase Order, no charges of any kind, including but not limited to charges for packing, breaking, shipping, freight, express, cartage, insurance, or transportation, will be allowed.
DELIVERY TIME OF ESSENCE. Purchaser’s schedules are based upon the agreement that the goods and/or services will be delivered to the Purchaser by the date specified on the face of the Purchase Order. Therefore, TIME IS OF THE ESSENCE. If goods and/or services are not delivered by the time specified, Purchaser may, at its option, and without limiting its other rights, reject such goods and cancel all or any unfulfilled part of the Purchase Order. The acceptance of late or defective delivery shall not be deemed a waiver by Purchaser of its right to cancel the Purchase Order, or to refuse to accept further deliveries. The Purchaser reserves the right to charge Seller for any loss or expense incurred as the result of Seller’s failure to make timely delivery.
INSPECTION AND REJECTION. All goods and materials furnished under the Purchase Order shall be subject to Purchaser’s inspection, testing, and approval or rejection prior to or after delivery due to non-conformance. Payment by Purchaser shall not constitute an acceptance or approval of any non-conforming or defective goods or workmanship, nor shall it affect the right of Purchaser to later reject the goods or services.
NON-CONFORMING GOODS. In addition to all remedies permitted by law, the Purchaser reserves the right to reject and return to Seller for full refund and at Seller’s expense, all over shipments and all goods that do not conform to the Purchaser’s exact specifications or requirements. Purchaser may charge to Seller all expenses for inspecting, unpacking, examining, repacking, storing and reshipping any goods rejected. The remedies afforded to Purchaser pursuant to this paragraph shall not be exclusive, but Purchaser may hold Seller liable for any and all damages arising from any breach or default pursuant to this paragraph.
RISK OF LOSS; WAREHOUSING. Risk of loss and transfer of title shall not pass to Purchaser until goods are delivered to and accepted by Purchaser. If Seller warehouses goods that have been ordered under the Purchase Order, regardless of warehousing location or whether title has passed to the Purchaser, Seller is responsible for any injury, loss, damage or destruction to the goods until delivered to Purchaser. Seller shall maintain adequate insurance coverage for warehoused goods in transit and submit a certificate of insurance to Purchaser which provides for Purchaser to receive 30 days’ notice of cancellation.
WARRANTIES AND REPRESENTATIONS.
(i) Seller expressly warrants that all articles, materials, work, or goods supplied under the Purchase Order will conform to the specifications, drawings, samples, or other descriptions given in all respects, and shall be fit and serviceable for the purpose intended, for good quality material and workmanship, merchantable and free from all defects. All material, work, or goods shall be subject to rejection if use reveals defects not apparent upon receipt; and if rejected, will be held at Seller’s risk and expense for storage and other charges until receipt of notification regarding disposal or return.
(ii) Seller has, or immediately prior to delivery shall have, title to the goods and materials and all rights to transfer them to Purchaser free and clear of any liens, encumbrances or third party claims.
(iii) Seller is a legal entity duly organized and in good standing under the laws of the state of its organization, with full capacity to sue and to be sued. Seller is authorized to enter into and be bound by these Terms and Conditions and a Purchase Order, and neither these Terms and Conditions nor a Purchase Order shall be a violation of any applicable law or the terms of any material contract, instrument or agreement between Seller and a third party.
(iv) The goods and materials have been manufactured, packaged, stored and delivered in accordance with all applicable federal, state and local laws and regulations and in compliance with all applicable labor and employment laws and regulations, including, without limitation, the Fair Labor Standards Act of 1938, as amended.
WARRANTY AGAINST INFRINGEMENT. Seller warrants that the sale or use of goods of Seller’s design or Seller’s patents covered by the Purchase Order either alone or in combination with other materials will not infringe or contribute to the infringement of any patents, trademarks, or copyrights either in the U.S.A. or foreign countries, and Seller shall hold harmless, indemnify, and defend with competent counsel, Purchaser, its employees, officers, directors, shareholder, and/or agents from and against all liabilities, losses, damages, costs, expenses, causes of action, suits, judgments and claims by or on behalf of any person, corporation, entity, or governmental body resulting from the sale or use of Purchaser’s products for any alleged infringements of any patents, trademarks or copyrights, by reason of the sale or use of goods provided by Seller pursuant to the Purchase Order either alone, or in combination with other materials.
PRICE. Prices set forth in the Purchase Order are not subject to increase. All price change requests must be submitted in writing with a minimum 90-day advance notice for consideration. No additional amounts shall be chargeable to Purchaser because of taxes or excises, presently or hereafter levied on Seller. If Seller’s quoted prices for the goods covered by the Purchase Order are reduced (whether in the form of a price reduction, close-out, rebate, allowance, or additional discounts offered to anyone) at any time of any shipment, the price to Purchaser for such goods shall be reduced accordingly by Seller, and Purchaser will be billed at such reduced prices. If the price is not recorded on the face of the Purchase Order, the price shall be that of the last previous Purchase Order given by Purchaser to Seller, subject to the provisions of this paragraph. If the price includes taxes or excises, and if all or any part of such taxes or excises are refunded to Seller, Seller shall immediately pay Purchaser the amount of such refund. Seller certifies that the prices on the face of the Purchase Order are not higher than prices being charged to other organizations purchasing identical goods in smaller quantities at this particular time and do not discriminate against Purchaser.
PRICE DISCRIMINATION. Seller represents that the prices and terms of purchase, and any allowances available, shall be in full compliance with the Robinson Patman Act.
INDEPENDENT CONTRACTOR. Seller is an independent contractor with no authority to bind Purchaser and having no other relationship to Purchaser.
INSURANCE. Seller shall provide and maintain such insurance coverage, in minimum types and amounts as described below in this Section, as will protect it and Purchaser (including Purchaser’s affiliates, its and their employees, directors, officers, shareholders and agents) from all claims which may arise out of or result from Seller’s performance under the Purchase Order, whether such operations be by itself or by its subcontractors, agents or representatives or by anyone directly or indirectly employed by any of them, or by anyone for whose acts they may be liable. All such policies shall provide a waiver of subrogation in favor of Purchaser and its affiliates. If requested by Purchaser, copies of the insurance policies will be provided. Seller shall provide, pay for, and maintain in effect the policies with insurance carriers with an A.M. Best’s rating of no less than A- VII, or insurance companies satisfactory to Purchaser, with policies that name Purchaser as an additional insured, contain a provision that the insurance will not be cancelled or changed without giving 30 days prior written notice to Purchaser and a provision that Seller’s insurance is primary to any insurance Purchaser may maintain.
For the duration of the Purchase Order and for three years thereafter, coverage shall be maintained by Seller for comprehensive general liability including product liability coverage and contractual liability insuring for the liabilities assumed under the Purchase Order, and for bodily injury and property damage in the minimum amount of $1,000,000 per occurrence and $3,000,000 aggregate; an umbrella liability policy with limits of at least $5,000,000 per occurrence and $5,000,000 aggregate. The aforementioned liability coverage will not contain any labor law exclusions.
Before Seller performs any work on Purchaser’s premises, certificates of insurance must be issued and sent to Purchaser at the address set forth in the upper left hand corner on the face of the Purchase Order including and maintaining coverage as follows:
- NYS workers’ compensation and employer’s liability;
- NYS statutory disability benefits;
- Automobile liability, bodily injury and property damage, combined single limit $1,000,000 each occurrence and $3,000,000 aggregate.
- IDEMNIFICATION. Seller shall hold harmless, indemnify and defend with competent counsel Purchaser, its employees, officers, directors, and/or agents from and against all liabilities, losses, damages (direct and consequential), causes of action, suits, judgments, fines, penalties, expenses costs and fees (including reasonable attorneys’ fees) and claims by or on behalf of any person, corporation, entity, or governmental body arising out of or resulting from Seller’s performance under the Purchase Order whether such performance be Seller or its subcontractors, agents or representatives or by anyone directly or indirectly employed by any of them, or by anyone for whose acts they may be liable and including such claims that arise from Seller’s actual or alleged liability in tort (strict or otherwise), breach of contract or warranty, infringement, negligent or intentional acts or omissions, or from goods or services supplied by Seller under the Purchase Order or by reason of Seller’s use of Purchaser’s premises.
- HAZARDOUS CHEMICALS. If the goods or materials shipped to Purchaser under the Purchase Order contain a hazardous chemical, Seller must provide a material safety data sheet, and any other information required by the Federal Hazard Communications Standard, New York State Labor Law 876(4), or other state or federal environmental laws, prior to, or at the time of shipment.
- EQUAL EMPLOYMENT OPPORTUNITIES/AFFIRMATIVE ACTION COMPLIANCE. Purchaser is an equal employment opportunity affirmative action employer and complies with all applicable laws and regulations. The Seller agrees, unless exempted, to incorporate by reference and abide by (i) Executive Order 11246 relating to the employment and advancement of women and minorities and the Equal Opportunity Clause; (ii) the Vietnam Era Veterans Readjustment Assistance Act, relating to the employment and advancement of disabled veterans and veterans of the Vietnam Era; and (iii) the Rehabilitation Act of 1973, and the Americans with Disabilities Act of 1991, relating to the employment and advancement of qualified disabled individuals.
TRADEMARK. If the goods specified in the Purchase Order are peculiar to Purchaser’s design or if the goods bear Purchaser’s trademark or identifying mark, they shall not bear the trademark or other designation of the manufacturer or Seller, and similar goods shall not be sold or otherwise disposed of to anyone other than Purchaser without the written consent of Purchaser. The title to any and all drawings and blue prints, jigs, dyes, patterns, tools, etc. used in connection with the Purchase Order shall at all times vest in Purchaser and shall upon completion of deliveries under the Purchase Order or upon termination of the agreement pursuant to which the Purchase Order is issued, be delivered to Purchaser upon request and Seller assumes all liability for loss thereof or for Seller’s failure to return such property to Purchaser.
TAXES. Seller accepts liability for payment of all payroll and social security taxes and all other federal, state, or local taxes now or hereinafter imposed by any governmental authority.
- CANCELLATION. Purchaser reserves the right at any time and from time to time without cause, to cancel all or any part of the undelivered portion of a Purchase Order by notice to Seller. In the event of such cancellation, Purchaser shall not be liable to Seller for loss of anticipatory profits. The provisions of this paragraph shall not limit nor affect Purchaser’s right to terminate the Purchase Order for default of Seller.
- WAIVER OF LIENS. Seller hereby waives and relinquishes all liens and claims statutory or otherwise which Seller now has or may hereafter have as a result of labor done and materials furnished by Seller or Purchaser and performance of a Purchase Order.
- DEFAULT. Upon the occurrence of any one or more of the following events, Purchaser shall have the option to cancel and terminate this contract without cost or liability to the Purchaser: (1) Seller’s insolvency or inability to meet obligations as they become due, (2) filing of voluntary or involuntary petition of bankruptcy by or against Seller, (3) institution of legal proceedings against Seller by creditors or stockholders, or (4) appointment of a receiver for Seller by any court of competent jurisdiction. The acceptance of goods or performance after the occurrence of any of the events set forth above shall not affect the right of the Purchaser to cancel its additional obligations.
- TRADENAME. Unless authorized by Purchaser in writing, Purchaser’s name, tradename, or the tradename of any of Purchaser’s subsidiaries or affiliates, shall not be used in Seller’s advertising.
- COMPLIANCE WITH LAWS. All work performed and goods provided shall comply, in all aspects, with all applicable State, Federal, and local laws, rules and regulations.
- NO ASSIGNMENT. Seller may not assign the Purchase Order or any interest relating to the Purchase Order without Purchaser’s prior written consent.
- WAIVER. The failure of Purchaser to enforce any of the provisions of the Purchase Order and these Terms and Conditions shall not be construed to be a waiver of such provision or limit the right of Purchaser thereafter to enforce each and every provision. No claim or right arising out of a breach of this contract can be discharged by waiver unless the waiver is in writing assigned by the aggrieved party.
GOVERNING LAW. All matters concerning the validity and interpretation of the Purchaser’s offer and Seller’s acceptance shall be governed by the laws of the State of New York. Jurisdiction of any litigation shall be in New York State with venue in a court of competent jurisdiction in Broome County.
NOTICES. Any notice or other communication required or permitted to be given pursuant to these Terms and Conditions or a Purchase Order shall be deemed to have been sufficiently given if in writing and either delivered by facsimile (with electronic receipt), overnight courier service against receipt or sent by registered or certified U.S. mail, return receipt requested, addressed to Seller at its last known address (as provided in writing to Purchaser) and to the Purchasing Department at the following address:
Cleaner’s Supply, Inc.
Attn: Purchasing Dept.
1059 Powers Road
Conklin, New York 13748
Fax: (607) 584-5171