Clinton Aluminum reserves the right to cancel this purchase order in whole or part without cost to it if the Seller shall breach any provision of this purchase order, including but not limited to delivery on the date or dates specified. Unless otherwise specified, this order is for immediate shipment. Time shall be of the essence for this order.
No charges of any kind, including charges for boxing, pallets, spools, reels, shipping, and handling will be allowed, unless specifically agreed to by Clinton in writing. However, Seller shall be responsible for packing and packaging necessary to withstand transportation hazards. Price is to cover net weight unless otherwise agreed. Packaging requirements for shipments on commercial bills of lading must meet commercial standards and accepted practices of the industry with full protection of the material to ultimate destination, and must conform to governing classifications including, but not limited to: a. The Uniform Freight Classification, for rail.
The National Motor Freight Classification, for truck.
The Railway Express Classification, for express.
The U.S. Official postal manual, for parcel post.
The Official Air Freight Rules Tariffs, for air freight.
Seller shall follow such routing instructions as Clinton may furnish it, and in the absence of such instructions, Seller shall ship the cheapest and best way. The articles ordered hereunder shall remain at Seller’s risk until they are received at Clinton’s facility unless specifically designated otherwise on the purchase order.
Unless otherwise provided on the face hereof, Seller shall be responsible for any and all local, state or federal tax or other government charges or duties upon the production and/or transportation of the articles ordered hereunder, including any increases in any of the above and including, without limitation, sales taxes.
All specifications, drawings, samples, models, tools, materials, parts, dies, molds, products, test or inspection equipment, patterns, plates, art work, layouts, engravings, forms, proofs, advertising copy, technical information and data (hereafter “Materials”) furnished hereunder by Clinton or by Clinton’s customer, any intermediate customer, or the ultimate customer for the finished product incorporating the materials or articles delivered hereunder (hereafter “Furnishing Party”), shall be used exclusively in the manufacture of materials or articles ordered by or to be delivered to Clinton or the Furnishing Party, shall be plainly marked or otherwise identified as “Property of [the Furnishing Party]” and shall be delivered to the Furnishing Party upon its request without further costs other than packing and shipping, and all information in such Material shall be kept confidential. Seller shall bear the risk of loss of all property of Clinton or any other Furnishing Party while in Seller’s custody or control and while in the custody or control of Seller’s suppliers, and shall maintain insurance covering the replacement cost with loss payable to Clinton.
Seller warrants that the articles to be delivered hereunder will be in full conformance with the specifications, descriptions, drawings and samples (including standard specifications pertaining to the ordered material maintained by Clinton); fit and suitable for the purpose for which they will be used; merchantable; free of any and all defects in materials and workmanship; and, except to the extent specifically covered by Clinton’s specifications, free of any and all defects in design. Where the end use of the articles has been specified, tolerances shall be in accordance with those prevailing for such end use. It shall be Seller’s responsibility to use any such tests, in addition to those specified which may be necessary in order to assure compliance of the material with applicable specifications. Warranties specified herein shall be in addition to all warranties implied by law. All warranties shall survive the acceptance of the payment for articles delivered hereunder, and Seller agrees to hold Clinton harmless from any loss, damage or expense (including attorney’s fees in any action, proceeding or investigation involving the Seller or third parties) which may be incurred or sustained by Clinton by reason of a breach of any warranty contained herein. Clinton reserves the right to have rejected material replaced by Seller or not, at Clinton’s option, or to obtain material in accordance with specifications from other sources and charge Seller for any difference in cost. Goods rejected on account of inferior quality or workmanship, or shipped contrary to instructions, or in excess of the quantity specified, or substituted for items ordered, or not complying with the specifications applicable hereto, or otherwise not acceptable, will be returned to Seller for full credit at the price charged or held by Clinton at its discretion and at Seller’s expense and risk, and Seller shall be further liable for all additional damages suffered by Clinton on account of any breach of warranty specified herein. Clinton reserves the right to charge to Seller all transportation and inspection costs and all other expenses and losses incurred by it in connection with any such goods; and such rejected goods shall not be replaced by Seller except upon receipt of written instructions from Clinton. Clinton reserves the right to accept part of a shipment which fulfills specifications and warranties, and reject any part which does not fulfill such specifications and warranties and treat the order as involving a breach of warranty to the extent of the amount of the rejected material.
Seller hereby guarantees that the manufacture, sale or use of all articles delivered hereunder are and shall be, free and clear of infringement of the proprietary rights of others, including patents, copyrights and trademarks; that Seller will, at its own cost and expense, defend any and all investigations and suits charging such infringement which may be brought against Clinton, its customers or any other persons for selling or using such articles or any product containing such articles; and Seller will hold Clinton, its customer and any other person, harmless from any and all damages, liabilities, costs, expenses and attorneys’ fees incurred as a result of any such infringement or claim of infringement.
Unless otherwise expressly set forth in the agreement between the parties, the terms of payment are net 90 days after Clinton’s receipt of either Seller’s valid invoice, or the products, whichever is later. Payment by Clinton of an invoice from Seller does not constitute acceptance of the products covered by the invoice. If the production or delivery of products covered by this Contract may give rise to mechanics’ or other similar liens, payment will not be due and the cash discount period, if any, will not commence until Seller has delivered to Clinton a complete release of all liens arising out of the production or delivery of such products or receipt in full covering all labor and materials for which a lien could be filed or a bond satisfactory to Clinton indemnifying it against any lien.
Seller or Seller’s subcontractor performing work on Clinton’s premises shall maintain such insurance as will protect Clinton and Seller from claims for damages because of bodily injury, including death, and property damage which may arise from and during operations under this purchase order, whether such operations be by Seller itself or by any subcontractor or anyone directly or indirectly employed by either of them.
Any unpatented knowledge or information concerning Seller’s products, methods or manufacturing processes, which may be disclosed to Clinton incident to the furnishing of goods or services covered by this order, shall, unless otherwise specifically agreed in writing, be considered to have been disclosed as a part of the consideration for this order and not in confidence, and no claim shall be asserted against Clinton by reason of its use of such knowledge or information.
If Seller shall cease to conduct its operations in the normal course of business (including its inability to meet its obligations as they mature), or sells or transfers a substantial part of its assets, or if any proceeding under the bankruptcy or insolvency laws are brought by or against Seller, or a receiver for Seller or for a substantial part of its assets is appointed or applied for, or an assignment is made for the benefit of creditors of Seller, Clinton may terminate this order without liability except for deliveries previously made. Clinton may also terminate this order without liability in the event of fires, strikes, acts of God, or acts or demands of any government, the non-occurrence of presupposed conditions, or any other reason beyond Clinton’s control.
Clinton reserves the right to make changes in this order. To the extent that any such changes shall result in additional costs, the purchase price shall be adjusted to reflect such additional costs, but no additional costs shall be allowed unless authorized by Clinton in writing. No additional cost shall be recognized unless Clinton is notified within 30 days after receipt of a change-order that additional costs will be incurred by virtue of any such change.
Seller hereby certifies that in filling this order it is complying and will comply with all applicable federal, state, and local laws and governmental regulations, orders, and rules.
Hazardous and Dangerous Goods and Materials: For any goods or materials furnished in accordance with this purchase order which are defined as hazardous or dangerous under applicable law, Seller will provide Clinton with hazardous warning and safe handling information in the form of a material safety data sheet (MSDS) and appropriate labeling for such goods or materials.
This transaction and the contract formed by the acceptance of this purchase order or delivery of all or part of the articles ordered hereunder shall be interpreted and construed under the internal laws of the state where Clinton is issuing this order is located.
Notwithstanding any other provision or understanding between Clinton and Seller, Seller will not at any time whatsoever or under any circumstances whatsoever disclose or reveal any information to any person not a United States citizen and resident, or to any person outside of the United States or to any representative of a foreign national or foreign interest or in any manner export any information from the United States when to do so would be contrary to or in violation of any law or regulation of the United States or any agency of the United States, including laws and regulations concerning export of data and information. Seller shall not export any information or disclose any information to any such above-mentioned person until Seller has procured the licenses, assurances and approvals, if any, necessary under such laws and regulations.
The remedies herein provided are cumulative and in addition to all other remedies at law or in equity. No waiver of any breach or provision hereof shall constitute a waiver of any other breach or provision. No modifications or additions to the terms hereof shall be binding upon Clinton unless agreed to in writing by it.
Clinton reserves the right to pull in or push out orders to meet demand as needed. Suppliers will be notified as soon as possible to schedule changes.
