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PDI Standard Purchase Order Terms and Conditions

PDI Standard Purchase Order Terms and Conditions

 
1. ORDER: These Terms and Conditions shall be part of each Order Buyer may issue Seller.
EACH ORDER SHALL NOT BE VALID UNLESS EXECUTED BY BUYER’S AUTHORIZED
REPRESENTATIVE. If the parties enter into a separate written agreement governing the
sale and purchase of the Goods and the terms of the Purchase Order conflicts with the terms
of said agreement, such terms shall supercede the terms of the Purchase Order.
2. ACCEPTANCE: Seller has read and understands the Purchase Order and agrees that
Seller’s written acceptance or commencement of any work defined by the Purchase Order
shall constitute Seller’s acceptance of these terms and conditions only. Any of the Sellers
terms and conditions that may appear in Seller’s quotations, acknowledgement, invoices, or
in any other communication from Seller, which are in addition to or inconsistent with these
Terms and Conditions will be construed as proposals for addition to the Purchase Order and
will not be binding unless expressly agreed to in writing by the Buyer. Upon acceptance, the
terms contained in the Purchase Order shall constitute the entire agreement between Seller
and Buyer with respect to the subject in this agreement (hereinafter referred to as the
“Agreement”) and may not be modified, added to, or rescinded except in writing signed by the
Seller and Buyer.
3. PRICE: Seller shall furnish the supplies and services called for in the Purchase Order at the
price or prices stated on the Purchase Order. Any increases in any stated price will only be
reflected through an amendment to the Purchase Order. If the price is omitted on order, it is
agreed that Seller’s price will be lower than the lowest prevailing market price or the price last
quoted or charged to Buyer. It is also agreed that Seller will not charge without the Buyer’s
consent, a higher price for the goods called for by the Purchase Order than was last quoted
or charged to the Buyer. Price is not subject to change without Buyer’s written consent.
4. SHIPMENT: Seller warrants that he will fill the Purchase Order in each particular line item
according to specifications. In the event the Purchase Order is not filled in each particular line
item as specified, Buyer shall have the right, in addition to any other right to which Buyer is
entitled by law, to cancel the Purchase Order at no cost to Buyer. The time and rate of
delivery of all materials to be delivered under the Purchase Order shall be as specified in the
acknowledgment copy, which Seller completes and sends to Buyer. If such time and rate are
not specified in the acknowledgment copy, the governing time and rate of delivery shall be
that stated on the face of the Purchase Order. Buyer reserves the right to defer the time and
rate of delivery specified in the Purchase Order by written notice to Seller, such change to be
without additional cost. Buyer shall not be liable for material commitments or production
arrangements made in advance of the time necessary to meet the delivery schedule. Buyer
reserves the right to return, shipping charges collect, all goods received in advance of the
delivery schedule. If Seller fails to deliver the goods within the time specified, Buyer may at
its option: (1) decline to accept the goods; or (2) decline to accept the goods and terminate
the Purchase Order.
(A) All items must be suitably packaged and prepared for shipment to withstand normal
transportation and stocking functions.
(B) Test reports, certificates and other supporting documents must accompany each
shipment when required by the Purchase Order.
(C) No charges shall be allowed for boxing, crating or cartage unless previously agreed.
(D) Seller shall package all items in suitable containers to permit safe transportation and
handling. Each delivered container must be labeled and marked to identify its
contents without having to be opened, and all boxes and packages must contain
packing sheets listing the contents. Buyer’s purchase order number as well as part
number must appear on all shipping containers, packing sheets, delivery tickets and
bills of lading. Containers must be individually marked, all showing clearly: (1)
Supplier’s name, (2) Buyer’s part number, (3) quantity shipped, (4) Purchase Order
number including line number and release number where applicable.
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(E) Premium transportation will be paid by Buyer only when specifically authorized.
Seller shall not insure or declare value of any shipment made F.O.B. shipping point.
Seller is liable for charges incurred as a consequence of not observing this
instruction.
(F) Seller must observe the “ship via” instruction on the face of the Purchase Order or is
liable for extra charges over what would have been incurred if specified routing had
been followed.
(G) Time and rate of delivery of all materials are considered to be the essence of the
Purchase Order. Should Seller experience or anticipate any delay in performing the
Purchase Order, Seller shall immediately notify Buyer in writing of such delay, its
expected duration and the reasons thereof. Such notification and acknowledgement
by Buyer shall not constitute a waiver of the Purchase Order’s delivery schedule.
5. QUALITY / INSPECTION: Goods are subject to inspection by Buyer notwithstanding prior
payment to obtain cash discount. Goods may be rejected and returned if inspection shows
they are not strictly in accordance with specifications. If impractical to make inspection at time
of receipt of goods, this clause will apply whenever goods are inspected. Rejected goods and
materials shall be held for Seller’s instructions and at Seller’s risk and after ten (10) days can
be returned to the Seller at his expense. Should production lead time not permit replacement
or correction of rejected goods by the Seller, it is agreed that the Buyer may at the expense
of the Seller correct the rejected goods to conform with the specification requirements. To
the extent Buyer rejects goods as nonconforming, the quantities under the Purchase Order
will automatically be reduced unless Buyer otherwise notifies Seller. Seller will not replace
quantities so reduced without a new order or schedule from Buyer. Seller’s failure to provide
written instructions within ten (10) days or such shorter period as may be commercially
reasonable under the circumstances, after notice of nonconformity shall entitle Buyer, at
Buyer’s option, to charge Seller for storage and handling or to dispose of the goods without
liability to Seller. Payment for nonconforming goods shall not constitute an acceptance
thereof, limit or impair Buyer’s right to assert any legal or equitable remedy, or relieve Seller’s
responsibility for latent defects.
6. OVERSHIPMENTS: Seller is instructed to ship only the quantity(ies) specified in the
Purchase Order. However, any deviation caused by conditions of loading, shipping, packing,
or allowances in the manufacturing processes may be accepted by the Buyer according to
the overshipment allowance indicated on the face of the Purchase order. If no allowance is
shown, it shall be 0% (zero percent). Buyer reserves the right to return any overshipment in
excess of the allowance at the Seller’s expense.
7. INDEMNITY: Indemnification of the goods ordered herein shall occur at the moment the
Purchase Order is accepted by Seller. Risk of Loss shall pass to the Buyer at the time that
conforming goods to the Agreement are actually received and accepted by the Buyer. To the
fullest extent permitted by law, the Seller shall indemnify, hold harmless, and at Buyer’s
request, defend Buyer, its officers, directors, customers, agents and employees, against all
claims, liabilities, damages, losses and expenses, including attorneys’ fees and cost of suit
arising out of or in any way connected with the goods provided under the Purchase Order,
including, without limitation, any claim based on (1) the death or bodily injury to any person,
destruction or damage to property, (2) the negligence, omissions, or willful misconduct of
Seller or Seller’s agents, and (3) alleged infringement by the goods of a patent, copyright,
trademark, trade secret, or other proprietary right of a third party. Seller shall not settle any
such suit or claim without Buyer’s prior written approval. Seller agrees to pay or reimburse all
reasonable costs that may be incurred by Buyer in enforcing this indemnity, including
attorneys’ fees. (B) Should Buyer’s use, or use by its distributors, subcontractors, or
customers, of any goods purchased from Seller be enjoined, be threatened by injunction, or
be the subject of any legal proceeding for alleged infringement, Seller shall, at its sole cost
and expense, either (1) substitute fully equivalent non-infringing goods; (2) modify the goods
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so that they no longer infringe but remain fully equivalent in functionality; (3) obtain for Buyer,
its distributors, subcontractors, and customers the right to continue using the goods; or (4) if
none of the foregoing is possible, refund all amounts paid for the infringing goods upon return
of such goods to Seller freight collect.
8. RISK OF LOSS / DESTRUCTION OF GOODS: Seller assumes all risk of loss to the Goods
until they are delivered to the place specified in the Purchase Order. Title to the goods shall
pass to Buyer upon receipt and acceptance at the designated destination. If the goods are
destroyed prior to title passing to Buyer, Buyer has the option to either cancel the Purchase
Order or require Seller to deliver substitute goods of equal quantity and quality. Such
substitute delivery shall be made as soon as commercially practicable. If loss of goods is
partial, Buyer shall have the option to require Seller to deliver goods not destroyed upon the
terms of the Purchase Order.
9. OWNERSHIP OF WORK PRODUCT: All Work Product shall at all times be and remain the
sole and exclusive property of Buyer. Any services performed pursuant to the Purchase
Order shall be a “work for hire”. Seller hereby assigns and transfers to Buyer all of its
worldwide right, title and interest in the Work Product including all associated intellectual
property rights. Seller agrees: (a) to disclose promptly in writing to Buyer all Work Product in
its possession upon request from Buyer; (b) to assist Buyer in every reasonable way, at
Buyer’s expense, to secure, perfect, register, apply for, maintain and defend for Buyer’s
benefit all copyrights, patent rights, mask work rights, trade secret rights, and all other
proprietary rights or statutory protections in and to the Work Product in Buyer’s name as it
deems appropriate; and (c) to otherwise treat all Work Product as Buyer’s confidential
information.
10. CANCELLATION: Buyer reserves the right at any time and from time to time, without cause,
to cancel all or any part of the undelivered portion of the Purchase Order by telegraphic or
other written notice to Seller. On the date of receipt of such written notice (the “Termination
Date”), Seller shall immediately cease work, including, but not limited to, the manufacture and
procurement of materials and subcontracted items for the fulfillment of the terminated portion
of the Purchase Order. In event of such cancellation, Seller shall be entitled to its costs, if
any, in connection with the cancelled items and a reasonable profit on such costs to be
agreed upon by the parties, or, if the parties are unable to agree on profit, a profit at the rate
of five percent on such costs, deduction to be made in such cancellation settlement for the
value of any cancellation inventory retained by Seller or disposed of to any party other than
Buyer, and Buyer shall not be liable to Seller for loss of anticipatory profits.
If the Purchase Order is for services, Seller shall mitigate its claim to the maximum extent
and Seller shall be entitled to the actual cost incurred in preparation to perform said services.
The amount of reimbursement shall not exceed the total price of the Purchase Order nor shall
Seller be entitled to consequential or incidental damages due to cancellation of the Purchase
Order.
The provisions of this paragraph shall not limit or affect the right of Buyer to terminate this
purchase order for default of Seller.
11. APPLICABLE LAWS: Seller covenants and agrees to observe and comply with in the
performance of the Purchase Order all applicable federal, state and local laws, rules and
regulations, and to indemnify and save harmless the Buyer for and from any and all liabilities,
expenses, costs and damages which Buyer may be put to or incur or suffer as a result of
Seller’s failure or omission to do so.
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12. GOVERNING LAW: The terms and conditions of the Purchase Order shall be construed in
accordance with, and disputes shall be governed by, the laws of the State of Virginia.
13. ITEMS FURNISHED BY BUYER: All designs, patterns, drawings, other data, and
Manufacturing Materials furnished or paid for by buyer to Seller (“Buyer-furnished Items”)
shall remain the sole property of Buyer. All Buyer-furnished Items shall be held at Seller’s
risk and shall be insured by Seller while in its custody or control in an amount equal to the
replacement cost thereof with the proceeds of a loss to be paid to Buyer. Upon completion or
cancellation of the Purchase Order, all Buyer-furnished Items not incorporated in the goods
shall be returned to Buyer in good condition unless otherwise agreed to by Buyer.
14. ADVERTISING: Any advertising of this Purchase Order (including the supplies or services
hereunder and pictures, descriptions, or samples thereof) by Seller is prohibited except with
Buyer’s written approval.
15. RELEASE OF INFORMATION: Neither party hereto shall, without the prior written consent
of the other party (which shall not be unreasonably withheld), publicly announce or otherwise
disclose, except to the US Government, when the Purchase Order references a US
Government contract or subcontract number, the existence or the terms of this Agreement, or
release any publicity regarding this Agreement. This provision shall survive the expiration,
termination or cancellation of this Agreement.
Any knowledge or information which Seller may disclose to PDI shall not be deemed to be
confidential or proprietary information and shall be acquired by PDI free from any restrictions
as to use or disclosure thereof>
16. FORCE MAJEURE: Any delay or failure of either party to perform its obligations hereunder
shall be excused if, and to the extent that it is caused by an event or occurrence beyond the
reasonable control of the party and without its fault or negligence, such as, by way of
example and not by way of limitation, act of God, actions by any government authority
(whether valid or invalid), fires, floods, windstorms, explosions, riots, natural disasters, wars,
sabotage, labor problems (including lockouts, strikes and slowdowns), inability to obtain
power, material, labor, equipment or transportation, or court injunction or order, provided that
written notice of such delay (including the anticipated duration of the delay) shall be given by
the affected party to the other party within ten (10) days. During the period of such delay or
failure to perform by Seller, Buyer, at its option, may purchase goods from other sources and
reduce its schedules to Seller by such quantities, without liability to Seller, or have Seller
provide the goods from other sources in quantities and at times requested by Buyer and at
the price set forth in the Purchase Order. If requested by Buyer, Seller shall, within ten (10)
days of such request, provide adequate assurances that the delay shall not exceed thirty (30)
days. If the delay lasts more than thirty (30) days or Seller does not provide adequate
assurance that the delay will cease within thirty (30) days, Buyer may immediately cancel the
Purchase Order without liability.
17. CHANGES IN ORDER: At any time, Buyer may by written notice, make changes to the
scope of the Purchase Order in any one or more of the following: (1) drawings, designs or
specifications; (2) method of shipping or packaging; (3) place of inspection, delivery or
acceptance; (4) amount of Buyer-furnished Manufacturing Materials, if applicable; and (5)
quantity. Seller shall proceed immediately to perform the Purchase Order as changed. If any
such change causes a material increase or decrease in the cost of, or the time required for
the performance of any part of the work in the Purchase Order, Buyer and Seller will agree
upon an equitable adjustment in the purchase price or delivery schedule or both. To qualify
for adjustment consideration, Seller must send written notice to Buyer of Seller’s intent to file
a claim under this clause within 21 days from the date of receipt by Seller of such written
notice of change. Seller shall proceed with the changed Order pending resolution of any
claim for adjustment. Buyer may act upon any such claim at any time prior to final payment
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under the Purchase Order. Nothing in this clause shall excuse Seller from proceeding with
the Purchase Order as changed.
18. FAIR LABOR STANDARDS ACT: Seller certifies that materials furnished on the Purchase
Order were produced in compliance with the “Fair Labor Standard Act” and all amendments
thereto and Seller agrees to indemnify Buyer for any loss or damage which may be sustained
by reason of failure to comply with said Act.
19. WARRANTY: If the Purchase Order is for goods, Seller warrants that all goods or
equipment furnished hereunder will be free from defects in material and workmanship; that
they will be in full conformity with the specification, drawing or sample, and, if they are to be
installed, that they will function properly for the period provided in Seller’s standard warranty
covering the goods, which Seller shall furnish to Buyer, but in no case shall extend for less
than one (1) year. This warranty shall survive acceptance and payment. Seller warrants that
all goods furnished under the Purchase Order will:
(A) be free from defects in materials and workmanship,
(B) conform to the applicable specifications, drawings, samples of other descriptions,
(C) be free from defects in design except to the degree such goods are manufactured to
Buyer’s design,
(D) be suitable for the intended purpose, if the purpose is made known to Seller and
Buyer relies on Seller’s judgment and selection and
(E) be free from defects in title.
All warranties shall be construed as conditions as well as warranties and shall not be deemed
to be exclusive. The benefits of this warranty shall accrue to Buyer’s customers and assigns
to the same extent they shall accrue to Buyer.
Under circumstances of breach of warranty, buyer shall be entitled to avail itself cumulatively
of all remedies provided in law or equity. Seller shall make timely Reponses to Buyer’s
notifications of breach of warranty and shall respond with the understanding (and Seller
agrees) that time will be of the essence in all circumstances.
If the Purchase Order is for services, Seller warrants that the services shall be completed
in a professional, workmanlike manner, with the degree of skill and care that is required by
current, good and sound professional procedures. Further, Seller warrants that said services
shall be completed in accordance with applicable specifications and shall be correct and
appropriate for the purposes contemplated in the Purchase Order.
20. ASSIGNMENT: Seller shall not delegate any duties, nor assign any rights or claims, under
this Purchase Order, without the prior written consent of Buyer, and any such attempted
delegation or assignment shall be void.
21. INVOICES: Individual invoices must be issued for each shipment applying against the
Purchase Order. Freight and other charges must be shown if discount is not allowed or full
amount of invoice. Delay in receiving an invoice, invoicing for goods shipped ahead of
specified schedule or invoices rendered with error and omissions will be considered just
cause for Buyer to withhold payment without losing discount privileges. Discount privileges
and payment terms will apply from date of scheduled delivery, the date of receipt of the
supplies or services, or the date of invoice, whichever is later. Invoices to be acceptable
must reference the Buyer’s Order number. Foreign Sellers must supply in quintuple invoices
complied and certified in accordance with Canadian Customs Regulations. All such invoices
must be mailed directly to Buyer not later than the day shipment is made; otherwise the Seller
will be responsible for storage or demurrage.
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