PURCHASE ORDER TERMS & CONDITIONS
1. ACCEPTANCE. This Purchase Order (“Order”), together with the agreements, specifications or other documents noted herein, if any, constitutes the complete and final agreement of Ohio northern University (“Buyer”) and the vendor or seller to whom the Order is addressed (“Seller”) and may not be added to, modified, superseded or altered except by written agreement or modification signed by Buyer’s authorized representative, notwithstanding any additional or other proposals or terms and conditions which may now or in the future appear on Seller’s invoices, quotations, acknowledgements or other forms (notification of objection thereto being given herby), and notwithstanding any acceptance of shipment, delivery, services, or other tender of performance of Seller shall be taken as Seller’s assent to and acceptance of the Terms and Conditions.
2. CHANGES. Buyer shall have the right at any time to make changes to any services to be performed or goods to be delivered, including but not limited to the specifications, delivery, shipment and quantity. If Buyer does not receive written notice of Seller’s objection to Buyer’s notice of change within then (10) days, such failure to object shall constitute Seller’s acceptance of the change without any price or other adjustments to this Order. Seller shall furnish the goods or services ordered hereunder in strict compliance with this Order unless a change is agreed upon in writing by an authorized representative of Buyer.
3. DELIVERY. Time is of the essence in Seller’s performance of this Order. All Orders shall be F.O.B. place of delivery (destination), unless otherwise specified in this Order. If the delivery of goods or the performance of services is not completed within the specified time, Buyer shall have the right, without incurring liability to Seller, to terminate this Order upon written notice to Seller as to goods not delivered and accepted or services not performed.
4. INSPECTION AND REJECTION. All goods and services shall be subject to final inspection by Buyer. Inspection shall be made within a reasonable time after receipt, irrespective of day of payment, and any goods or services which are not fully satisfactory to Buyer may be rejected by notice to Seller. Rejected goods or services are to be replaced with conforming goods or services or, at the option of Buyer, the quantity of goods or services under this Order shall be reduced by the quantity of rejected items.
5. PRICES, TAXES AND PAYMENT. Unless otherwise stated in an applicable Order, all prices shall be: (a) F.O.B. place of delivery (destination); (b) inclusive of applicable taxes, excises, duties, freight costs and handling fees; and (c) subject to increase only with the prior written consent of Buyer. Buyer and Seller will cooperate upon request in obtaining and furnishing such certificates or other evidence of inapplicability of or exemption from any sales, excise or other taxes to which either of the parties may be entitled. Buyer shall have no obligation to pay for any item until a correct invoice for goods or services is received at Buyer’s address shown on the face of this Order. Payment terms commence upon Buyer’s receipt of a correct invoice.
6. WARRANTIES. Seller warrants that the goods and services: (a) are merchantable and fit for the particular purpose(s) known by or disclosed to Seller; (b) are free from all defects in design, workmanship, and material; (c) are in compliance with all standards, specifications, samples and descriptions incorporated and made part of this Order; (d) are in compliance with all applicable state or federal laws and regulations; (e) do not and will not infringe any patent, trademark, copyright, trade secret or other intellectual property right; and (f) are free from all lawful claims of any description, including all security interests and liens, of all persons and governments. Any goods or services not as warranted will be either repaired or replaced by Seller at no additional cost to Buyer, or Seller shall refund the purchase price and transportations costs applicable thereto, whichever option Buyer selects. Any goods or services so repaired or replaced shall be covered by the foregoing warranties from the date of such repair or replacement.
7. CONFIDENTIALITY. Without Buyer’s prior written consent, Seller shall not advertise or publish in any manner that Seller has contracted to, or has furnished goods or services to Buyer. Seller shall not use Buyer’s name in any way without Buyer’s prior written consent.
8. TERMINATIONS. Buyer may at any time terminate this order in whole or in part by written notice, whereupon Seller shall terminate work pursuant to the terms of such notice and without any further liability of Buyer or Seller. If goods ordered hereunder are made specifically for Buyer and cannot be sold to other purchasers, upon termination by buyer, Seller shall promptly advise Buyer of the quantities of applicable work and material on hand or purchased prior to termination, and the most favorable disposition that Sell can make thereof. Seller will comply with Buyer’s instructions regarding disposition of such work and material. All claims by Seller based on such termination must be asserted, in writing and in full, within sixty (60) days form the date of notification of the termination, for the amount of the Order price of finished goods and the cost to Seller (excluding profit or losses) of work in process and raw materials less however, (a) the agreed value of any items used or sold by Seller with Buyer’s consent; and (b) the reasonable value or cost (whichever is higher) of any defective, damaged or destroyed work or material and items sold or used by Seller without Buyer’s consent. If an Order for services is terminated, Buyer’s liability shall be calculated according to the hourly rate for services specified in the Order multiplied by the amount of time expended on the Order by Seller prior to the termination date. Boyer will make no payment for finished goods or services in progress or raw materials fabricated or procured by Seller unnecessarily in advance or in excess of Buyer’s delivery requirements. The payment provided for in this section shall constitute Buyer’s only liability in event this Order is terminated as provided herein. The forgoing provisions of this section shall not apply to any termination by Boyer for default of Seller or under the following provisions of this section. To the extent that this Order covers items normally carried in inventory by Seller (as distinguished from items specifically made to Buyer’s specifications).
9. INDEMNITY. To the extent that, in connection with the goods or services, Seller’s employees, associates, consultants, agents or other representatives (Seller’s Agents”) are on or present at any premises of Buyer, Seller shall be and is responsible for the acts and omissions of Seller’s Agents within or about Buyer’s premises and agrees to indemnify and hold Buyer, and Buyer’s directors, officers, employees, and agents, harmless from liability for any claims or damages to property or injuries or death to persons arising out of acts or omissions of Seller’s Agents in performance hereunder or other actions at Buyer’s premises, including without limitation: (a) the failure of Seller’s Agents to comply with all applicable rules and regulations (Buyer’s and otherwise) governing security, maintenance and safety at or about Buyer’s premises; (b) any claim against Buyer by or on behalf of Seller’s Agents for injury or otherwise; or (c) any claim against Buyer resulting from Seller’s failure to maintain worker’s compensation or other public or private insurance with respect to any of Seller’s Agents. Seller also agrees that in the event that any claims, demands or lawsuits are made or brought against Buyer relating to the goods or to Seller’s performance of services hereunder, or to the trademarks, copyrights or patents associated therewith, Seller shall hold Buyer free and harmless, defend all actions against Buyer, pay all costs of any lawsuit, including any attorney’s fees, and indemnify and hold harmless Buyer from any costs incurred by Buyer in connection therewith.
10. LIMITATION OF BUYER’S LIABILITY. Buyer’s liability for any loss or damage in any way connected with, arising out of, or resulting from this Order shall not exceed the price allocable to the particular goods or services upon which such liability is based, regardless of whether such liability arises in contract, tort (including, but not limited to, negligence or strict liability) or otherwise. In no event shall Buyer be liable to Seller for loss of profits or revenue or for any incidental, consequential, special or punitive damages.
11. INSURANCE. Seller will procure and maintain insurance, in amounts customary in the Seller’s industry, at Seller’s sole expense, with reputable and financially responsible insurance companies, insuring against any and all public liability, including injuries or death to persons and damage to property, arising out of or related to the goods or services performed hereunder, and shall furnish to Buyer, upon request, certificates or memoranda of such insurance and renewals thereof authenticated by the issuing company. Seller will also maintain worker’s compensation insurance covering all employees and will provide certification of such insurance if requested by Buyer.
12. ASSIGNMENT AND SUBCONTRACTORS. Seller shall not, without Buyer’s prior written consent, either assign this Order or any payments due to Seller under this Order or subcontract the production of any goods or the performance of any services covered by this Order.
14. FORCE MAJEURE. Neither Buyer nor Seller shall be liable for failure or delay in performance under this Order due in whole or in part to an act of God or public enemy unusually severe either, inability to obtain or delay in obtaining government al approvals, permits or licenses, strikes, lockouts or other labor disputes, and any other causes which are not within a party’s reasonable control. During any period of Seller’s inability to perform, Buyer may acquire from others, without incurring liability to Seller, such goods and services that Buyer may deem necessary, and at Buyer’s option, the quantity of such goods or services ordered from Seller may be proportionately reduced.
15. MISCELLANEOUS. The laws of the state of Ohio shall govern the validity, interpretation and construction of this Order. This Order contains the entire agreement of the parties with respect to the goods and services covered by this Order, and all previous contracts, purchase orders, proposals, discussions and communications relating to the goods and services covered by this Order are superseded except to the extent that they have been incorporated by direct reference. This Order may not be amended without Buyer’s written consent. Buyer shall not be deemed to have waived any right, power, privilege or remedy unless such waiver is in writing and duly executed by Buyer. No failure to exercise, delay in exercising, or course of dealing with respect to any right, power, privilege or remedy shall operate as a waiver thereof by Buyer. Seller acknowledges and agrees that Seller is an independent contractor and not an employee, partner, agent or representative of Buyer. The headings in this Order are for convenience of reference only and shall not affect this Order’s interpretation or construction.