SMP Corporation STANDARD TERMS AND CONDITIONS OF SALE
1. Acceptance. This order is deemed accepted by Seller if not rejected via electronic mail, facsimile, or any other form of writing within five (5) days of the order’s date. Acceptance is limited to the terms and conditions of this order. Any additional or different provisions proposed by Seller are rejected and will not be effective unless expressly agreed to in writing by Buyer. This order, with any attachments, constitutes the entire agreement of the parties. No waiver, modification or additions to the terms of this order shall be valid unless in writing and signed by the parties.
2. Prices. Buyer shall not be billed at prices higher than those stated on Buyer’s order. Unless otherwise specified, the price includes all charges for packing, hauling, storage and transportation to point of delivery. Seller will pay all delivery charges in excess of any delivery charge Buyer has agreed to pay. The price stated includes all taxes except state or local sales or use tax or similar taxes, which Seller is required by law to collect from Buyer. Such taxes, if any, shall be separately stated in Seller’s invoice and paid by Buyer unless an exemption is available. Seller agrees that any price reduction made with respect to the items covered by this order subsequent to its placement but prior to payment will be applicable to this order.
3. Delivery. Substitutions will not be accepted. The order must be shipped complete by the date requested but must not be shipped more than one week in advance of the time or times specified herein, without Buyer’s prior approval. When more than one shipment is made against any order, indicate “Final Shipping” on shipping papers and invoice accompanying the last shipment in the order. Seller shall not ship excess quantities without Buyer’s prior approval. Except as otherwise provided herein, Buyer shall not be obligated to accept untimely, excess or under shipments and such shipments in whole or in part may, at Buyer’s option, be returned to Seller, or held for disposition at Seller’s expense and risk. Seller’s invoice shall describe the items, state the purchase order number and be attached to the original bill of lading or other shipping receipt
4. Changes. Buyer may make changes in drawings, specifications, quantities, delivery schedules, or methods of shipment or packaging on any goods at any time. If such changes result in an increase or decrease in cost, an equitable adjustment of price and delivery schedules may be made, or Buyer may, at its option, terminate the order if agreement on an adjustment cannot be reached. Claims for adjustment must be asserted by Seller within ten days of the change order.
5.Warranties. Seller warrants that the goods and services purchased hereunder will conform to applicable specifications, instructions, drawings and data, and that samples will be merchantable, of good material and workmanship, free from defects and will be fit and sufficient for the purpose intended. These warranties shall be in addition to all other warranties, express, implied or statutory. Payment for, inspection of, or receipt of articles or services shall not constitute a waiver of any breach of warranty.
6. Inspection and Tests. Buyer reserves the right to inspect and either accept or reject goods that contain any defect in materials, workmanship or design or fail to conform to the written specifications provided to or by Buyer for the goods (“Defective Product(s)”). Buyer may, at its option, (i) return Defective Products at Seller’s expense, for a full refund of the purchase price; (ii) return Defective Products to Seller for repair or replacement; or (iii) exercise any other rights that Buyer may have at law or in equity. Defective Products that are returned to Buyer after repair or replacement are subject to the same inspection and acceptance provisions of this P.O. as goods originally delivered. If Buyer returns Defective Products to Supplier for repair or replacement, Seller shall repair or replace Defective Products within five (5) days of receipt thereof. Seller shall pay all costs related to repairing or replacing Defective Products, including, but notlimited to: labor, materials, inspection and shipping costs to and from Buyer’s facilities. If Buyer incurs any such costs directly, Buyer may recover such costs from Supplier or offset such amount against unpaid purchase orders for other goods. All goods and materials shall be new, unless otherwise specified in this P.O. Neither Buyer’s inspection nor failure to inspect shall relieve Seller of any obligations hereunder.
7. Intellectual Property Indemnification. Seller shall indemnify and save harmless Buyer, its successors,assigns, customers or users of its products, from and against all loss, liability and damage, including costs and expenses, resulting from any claim that the manufacture, use, sale or resale of any goods supplied under this order infringe any patent or patent rights, trademark, copyright or other intellectual property right of a third party and Seller shall when notified, defend any action or claim of such infringement at its own expense.
8. Termination. Buyer or Seller may terminate a purchase order upon default of the other party, upon written notice to the defaulting party. Buyer may terminate a purchase order at any time for any reason, upon notice to Seller. Upon termination of a purchase order by Buyer for reasons other than Seller’s default, Buyer’s entire liability shall be to purchase the following, without duplication: (i) all goods that had been purchased by Seller to fulfill Buyer’s order as evidenced by reasonable documentation provided to Buyer, and (ii) all goods received by Buyer that have not been paid for. Upon termination of purchase order due to Seller’s default, Buyer may elect to purchase, at Seller’s cost, any goods Seller may have purchased to fulfill Buyer’s order; or (ii) exercise any other rights that Buyer may have in law or inequity.
9. Default. Cancellation. Buyer reserves the right, by written notice of default, to cancel this order, without liability to Buyer, in the event of the happening of any of the following: insolvency of Seller, the filing of a voluntary petition in bankruptcy by Seller, the filing of an involuntary petition to have Seller declared bankrupt, the appointment of a Receiver or Trustee for Seller, or the execution by Seller of an assignment for the benefit of creditors. If Seller fails to perform as specified herein, or if Seller breaches any of the terms hereof, Buyer reserves the right, without any liability to Buyer, upon giving Seller written notice, to (i) cancel this order in whole or in part, by written notice to Seller and Seller shall be liable to Buyer for all damages, losses and liability incurred by Buyer directly or indirectly resulting from Seller’s breach, or(ii) obtain the goods ordered herein from another source with any excess cost resulting therefrom, chargeable to Seller, if such deficiencies are not remedied. The remedies herein provided shall be cumulative in addition to any other remedies provided at law or in equity.
10. Force Majeure. Neither party shall be liable for defaults or delays due to Acts of God or the public enemy, acts or demands of any Government or any Governmental agency, strikes, fires, floods, accidents, or other unforeseeable causes beyond its control and not due to its fault or negligence. Each party shall notify the other in writing of the cause ofsuch delay within five (5) days after the beginning thereof
11. Indemnification. Seller will defend, hold harmless and indemnify Buyer from and against any liability and expenses (including, without limitation, attorney and other professional fees and disbursements) arising from or in connection with any damages, injuries or third party claims or demands to recover for personal injury, death, or property damage caused by or arising out of any of the goods or services supplied by Seller (regardless of whether such claim or demand arises under tort, negligence,contract, warranty, strict liability or other legal theories), except to the extent such injury, damage or loss results from Buyer’s negligent actions or alteration or misuse of the goods provided by Seller.
12. Compliance with Laws. Seller shall, at all times during the term of this agreement, comply with all applicable laws and regulations and shall refrain from engaging in any illegal, unethical, or deceptive practices.
13. Assignment. Neither this order nor any rights or obligations herein may be assigned by Seller nor may Seller delegate the performance of any of its duties here under without Buyer’s prior written consent.
14. Applicable Law and Jurisdiction. These terms and conditions and all orders will be governed by and construed in accordance with the laws of the State of Georgia without reference to its choice of law rules and the EXCLUSIVE VENUE for any actions brought under this P.O. will be the state courts in Newton County, GA or the federal courts in Atlanta GA.
15. Invoices All correspondence and invoices covering this order must be addressed to Buyer’s Purchasing Department at the address indicated on the purchase order. The parties agree that for any transactions subject to this purchase order, facsimile signatures shall be accepted as original signatures, orders may be transmitted electronically and any document created pursuant to this order may be maintained in an electronic document storage and retrieval system, a copy of which shall be considered an original. Neither party shall raise any objection to the authenticity of this purchase order or any document created hereunder, based on the use of a facsimile signature, electronic order or the use of a copy retrieved from an electronic storage system.
16. Severability. In case any one or more provisions contained in this purchase order shall be invalid, illegal, or unenforceable in any respect, the validity, legality, or enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.