Terms & Conditions - Purchase Orders

1.   TERMS OF PURCHASE

     These terms and conditions of purchase (this “Purchase Order” or this “Agreement”) exclusively governs the purchase of all components, parts, accessories, products and/or services (the “Product(s)”) sold by Seller to MURSIX Corp. (“Buyer”). Whether this form is deemed an offer, an acceptances or a confirmation, Buyer expressly conditions its purchase of Product(s) on Seller’s assent to these terms, notwithstanding any difference, additions, or conflicting terms contained in the terms proposed by Seller. This Purchase Order contains the entire agreement between the Buyer and the Seller. No modifications or additions to the terms set out in this Purchase Order shall be valid unless in writing and signed by and authorized representative of Buyer and Seller. Seller is an independent contractor and under no circumstances may Seller represent itself as an agent for the Buyer.
 

2.   ACCEPTANCE OF TERMS AND CONDITIONS OF PURCHASE ORDER

2.1 This Purchase Order constitutes Buyer’s offer to Seller to buy Product(s) and shall become a binding agreement subject to the descriptions, terms, and conditions set forth on both sides of this document upon acceptance by Seller. Seller’s acceptance shall be indicated either (i) Seller’s signing or returning the acknowledgement copy of this Purchase Order; or (ii) Seller’s commencement of services or delivery of materials, either in whole or in part.

2.2 Buyer shall have no obligation or liability with respect to any and all Product(s) delivered in excess of the amount or otherwise not in conformity with this Purchase Order. At Buyer’s options, such Product(s) may be returned to Seller at Seller’s sole expense.

2.3 Seller shall provide Buyer with written notice prior to making any change in the services or Product(s) furnished pursuant to this Purchase Order, particularly any modifications in any design specifications, assembly procedures, or changes in any raw materials or component parts of any of Seller’s Product(s), to allow Buyer, at its sole discretion, to determine whether to accept such changes, based on any adverse effect on the quality of Buyer’s own final products, processes, or services.
 

3. BUYER DESIGNED ARTICLES; QUALITY

    All materials used in the Product(s) delivered under this Purchase Order shall be in conformity with applicable drawings, specifications, and requirements with respect thereto. Seller shall maintain test data to substantiate compliance with the foregoing, and Seller’s manufacturing processes and inspection system shall be subject to on site review and verification by Buyer’s representatives.
 

4. CANCELLATION OF PURCHASE ORDER

4.1 Buyer shall have the right, at its option, to modify or cancel this Purchase Order or any part thereof, to refuse delivery of any Product(s) and return to, or hold for the account of, Seller any Product(s) already received by Buyer: (i) upon Seller’s failure to make any delivery in accordance with the terms of this Purchase Order or to comply with shipping and instructions of Buyer; (ii) in the event that any Product(s) supplied by Seller: (a) do not meet the specifications; (b) are defective; (c) are not satisfactory to Buyer; or (iii) on account of any unforeseeable cause beyond the control of Buyer, including any act or demand of the United States or any state or local government body, act of God, or of the public enemy, fire, flood, epidemic, quarantine restriction, strike, embargo, failure of usual means of transportation and any other case which in the judgment of  Buyer may adversely affect the manufacture or sale of any product by Buyer.

4.2 In the event any institution of proceedings by or against Seller in bankruptcy or insolvency, or under any provision of the United States Bankruptcy Act, or the appointment of a receiver or trustee or and assigned for the benefit of creditors of Seller, Buyer may cancel this Purchase Order forthwith, without waiving any of its remedies.
 

5. SHIPMENTS

5.1 Unless there are prior agreed upon shipping terms set forth by Buyer and Seller, Buyer shall designate proper procedure on how Product(s) are to be shipped. If in order to comply with Buyer’s required delivery date it becomes necessary for Seller to ship by a more expensive way than specified in this purchase order, any increased transportation costs resulting therefrom shall be paid for by Seller unless the necessity for such rerouting or expedited handling has been caused by Buyer.

5.2 All risk of loss shall be upon Seller until such time as the Product(s) ordered shall be delivered to the final destination specified in the Purchase Order and are accepted by Buyer. This shall be so without regard to the FOB point.

5.3 No charge will be allowed for packing, crating, drayage, or storage unless agreed upon in writing by Buyer and Seller at time of purchase. Shipments must be packed to conform to the requirements of the carriers.

5.4 All shipments must be forwarded to Buyer at the time and place and in the manner indicated on the Purchase Order. Time is of the essence. Buyer requires timely delivery. In the event of any variance, all additional expenses to which Buyer may be subjected shall be borne by the Seller. Buyer may purchase replacement Product(s) elsewhere and Seller shall be liable for any difference in price Buyer must pay, as well as any actual and reasonable out of pocket costs Buyer may incur to obtain the replacement parts.

5.5 Product(s) shipped to Buyer from abroad shall be securely packaged and braced for export, as light as possible, and the smallest cubical bulk consistent with safe carriage by ocean vessel, railroad, or craft (as the case may be). All packaging and boxing costs shall be borne by the Seller. Seller shall be in compliance with all requirements set forth by the United States Government to import any products covered by this Purchase Order including: proper packaging, labeling, documentation, and insurance  Buyer will indicate method of shipping.

5.6 An itemized packing slip bearing Buyer’s Purchase Order number as shown herein must accompany each delivery; and each container must be marked to show Buyer’s Purchase Order number. Buyer’s count will be accepted as conclusive on shipments not accompanied by a packing slip, bar code, proper label, or documentation.

5.7 After shipment of the Product(s), Seller shall submit a separate invoice to Buyer at the address indicated under the “Bill To” section of this Purchase Order.

5.8 All Product(s) are subject to inspection and may be rejected in accordance with the criteria specified in this Purchase Order. Upon request of Buyer, Seller shall issue a refund, repair, or replacement of any rejected Product(s) as determined by Buyer, without additional cost or charge and in a timely manner. In the event the Buyer receives Product(s) whose defects or nonconformity is not apparent upon inspection, the Buyer reserves the right to require replacement, as well as payment of damages.  Nothing contained in this Purchase Order shall relieve in any way the Seller from the obligation of testing, inspection and quality control. Payment will not be deemed acceptance by Buyer.
 

6. PRICE; DISCOUNTS; PAYMENT; TAXES

6.1 Product(s) not priced on this Purchase Order will be supplied at the lowest price last charged by Seller for equal quantity, and shall not exceed current prices quoted or charged by Seller for similar items and quantity. Seller will refund to Buyer any amounts in excess of such price. Seller warrants that the prices for the Product(s) supplied to Buyer hereunder are not less favorable than those currently extended to any other customer for the same or similar Product(s) in similar quantities.

6.2 Seller agrees that Buyer shall receive the benefit of any reduction in the price for any Product(s) or service described herein which shall be make or in effect at the time of the shipment, or delivery, or furnishing thereof to Buyer and that in any such case the price therefore provided in this Purchase Order shall be reduced accordingly.

6.3 It is understood that the cash discount period will date from the receipt of the Product(s) or from the date of the invoice, whichever is later.

6.4 The price, per the negotiated terms between Buyer and Seller, of the Product(s) sold hereunder shall not be due and payable until delivery and acceptance of the Product(s).

6.5 Seller shall separately state on all invoices and confirmations the applicable sales taxes imposed by federal, state or local governments, unless and exemption is available.
 

7. WARRANTIES AND COMPLIANCE WITH LAWS

7.1 Seller expressly warrants that all Product(s)  provided pursuant to this Purchase Order shall be: (i) merchantable; (ii) fit and safe for the purpose for which it is manufactured; (iii) free from defects in material and workmanship; (iv) in conformance with applicable specification, drawings, samples, and descriptions; and (v) that if of Seller’s design, shall be free from design defects. Additionally, Seller warrants that it has good title to the Product(s) supplied and that they are free and clear from all liens and encumbrances. These warranties shall survive acceptance and payment by Buyer. Product(s) not in accordance with these warranties may be returned to Seller and Seller shall pay for transportation both ways. Buyer shall have the option of returning such Product(s) to Seller at any time after delivery for credit or replacement at the price charged. The foregoing shall not be in limitation of any rights which Buyer may have at law or in equity by reason of any breach of warranties.

7.2  Seller herby guarantees that the Product(s) sold hereunder are not and will not be, on the date of shipment or delivery, either adulterated or misbranded within the meaning of the U.S. Food, Drug, and Cosmetic Act, as amended, or within the meaning of any applicable state or local law in which the definitions of adulteration and misbranding are substantially identical with those contained in the Federal Food, Drug, and Cosmetic Act, as said Act and such laws are constituted and effective at the time of such shipment for delivery, and that such Product(s)  are not and will not be, on the date of such shipment or delivery, Product(s) which may not under the provisions of Section 404 or 505 of said Act, to be introduce into interstate commerce.

7.3 Seller warrants that the Product(s) purchased or provided hereunder have been produced and/or have been designed to and will comply fully with all applicable federal, state, and local standards in effect on the date of shipment, including, without limitations, the appropriate sections of the Occupational Safety and Health Standards Act and the Fair Labor Standards Act, as amended. Buyer may, upon notice, inspect Seller’s plant and facilities at reasonable times to determine compliance with the provisions set forth herein. In addition to any other remedies contained herein, Buyer shall have the right to immediately terminate this agreement and any other agreements with Seller if it determines that Seller is in violation of this section.

7.4 If this Purchase Order is issued pursuant to a contract with the United States Government, or any agency thereof, and such fact is communicated to Seller on this Purchase Order form or otherwise, then: (i) Seller agrees to allow access to any representative of the United States Government, or any agency thereof, to Seller’s  manufacturing plants, materials, processes, relevant books, and records; (ii) all materials and workmanship is subject to inspection by the United States Government; and the United States Government, as well as the Buyer, has the right to reject any Product(s) found to be non-conforming or defective; and (iii) Seller performing work under this Purchase Order shall not discriminate against any employee or applicant because of race, creed, color, national origin or sexual orientation and shall include a similar clause in its subcontracts.

7.5 The following are hereby incorporated by reference and make a part of this Purchase Order as is fully set forth herein: (i) the provisions of the Equal Opportunity clause set forth in 41 CFR 60-1.4 (a) pursuant to the requirements of Executive Order 11246; (ii) applicable contractual requirements of the Rehabilitation Act of 1973 as set forth in 41 CFR 60-741.4; (iii) applicable contractual requirements of the Vietnam Era Veterans Readjustment Assistance Act of 1974 as set forth in 41 CFR 60-250.4; (iv) applicable contractual provisions of Public Law 95-507 concerning the utilization and employment of Small Business, Small Disadvantaged Business and Women-Owned Business Concerns; and (v) any law, order, or regulatory provision issued in addition, supplement or replacement of the foregoing concerning federal contractors.
 

8. INDEMNIFICATION

     Seller agrees to indemnify, defend, and hold harmless Buyer, its parent, subsidiaries, and affiliated companies; and its officers, directors, managers, agents, and employees, from and against any and all loss, cost, liability, damage, and expense (including without limitations, and reasonable attorneys’ fees, and other costs of litigations) arising out of or in connection with any Product(s) provided by Seller or Seller’s performance hereunder, for or on account of : (i) any injury, death, or damage to person or property, or any claim thereof; (ii) with respect to any Product(s) sold hereunder of its use, and infringement, or claim or infringement, of any patent, copyright, design, process, trademark, trade name or other intellectual property right; and (iii) any litigation based on or as a result of any of the foregoing.
 

9. CONFIDENTIAL INFORMATION AND PUBLICITY

     Seller agrees to hold in strict confidence any confidential information disclosed by Buyer to Seller and to make no use of such information other than that authorized by Buyer. Advertising and promotional material used by Seller with respect to Buyer (including the use of Buyer’s name as a customer) must be approved by Buyer in writing prior to release.
 

10. OWNERSHIP

     Seller agrees that any work created as a result of this Purchase Order shall be considered a “work made for hire” and any copyright and other ownership of such work shall be owned solely, completely, and exclusively by Buyer. Buyer shall have the right to publish such work and/or register such copyright in the name of Buyer as sole and exclusive author and owner thereof. In the event such work is determined by a court of competent jurisdiction not to be a “work for hire” under the federal copyright laws, this Purchase Order shall operate as an irrevocable assignment by Seller to Buyer of the copyright and other exclusive ownership rights to the work, including all rights thereunder in perpetuity.
 

11. MATERIALS FURNISHED BY BUYER

11.1 Any artwork, negatives, positives, proofs, engravings, dies, tools, molds, and any other material or equipment furnished by Buyer, which shall be used for or in connection with the production of any Product(s) pursuant to this Purchase Order: (i) shall be and remain in the sole and exclusive property of Buyer; and (ii) shall only be used in connection with Buyer’s work and shall be held by Seller and promptly returned to Buyer by Seller in accordance with the instructions of Buyer.

11.2 Seller shall replace or restore to original, usable condition, free of any cost or expense to Buyer, any art work or any material described in Section 11.1 which shall be destroyed or become deteriorated or otherwise unusable for or on account of any act or omission of Seller contrary to the provisions thereof.
 

12. DELAYS

     Whenever Seller has knowledge that any actual or potential labor dispute or other problem is delaying or threatens to delay the timely performance of this Purchase Order, Seller shall immediately give notice thereof to Buyer, including all relevant information with respect thereto.
 

13. WAIVER

     Any waiver of strict compliance with any provision of the Purchase Order shall not be deemed a waiver of any subsequent breach or failure, nor of Buyer’s right to insist on strict compliance thereafter.
 

14. SEVERABILITY

     In the event that any provision of this Purchase Order is for any reason held to be invalid or unenforceable or contrary to public policy, such provision shall be treated as severable, leaving valid the remainder of this Purchase Order.
 

15. ASSIGNMENT

   Seller shall not assign this Purchase Order, or any part thereof, without written consent of Buyer. Such consent shall not release Seller from its obligations and liabilities. Any and all rights, benefits, and privileges under this Purchase Order including, without limitation the benefit of any and all warranties, shall insure to the benefit of any parent, subsidiary, or other affiliated corporation of Buyer to whom the Product(s) or services described herein, or any part thereof, shall be delivered or furnished or transferred, whether such delivery, furnishing, or transferal shall be accomplished by Seller or Buyer or otherwise.
 

16. ENFORCEMENT

     In the event Buyer takes or maintains any action to enforce its right hereunder and prevails and/or obtains a successful result thereafter, Seller shall reimburse Buyer for its reasonable costs and expenses incurred, including, without limitation, reasonable attorneys’ fees.
 

17. GOVERNING LAW

     This Purchase Order and the contract resulting from Seller’s acceptance hereof shall be construed in accordance with and governed by the laws of the State of Indiana. Seller and Buyer hereby further consent to the personal jurisdiction of the state and federal courts located in the State of Indiana in connection with the disposition of any controversy or action relating to or in any manner arising out of this Purchase Order, waive any argument that personal jurisdiction and venue in such forums is not proper or convenient for any reason, and agree that the Delaware County Court has venue over any litigation initiated either by Seller or Buyer.