Terms & Conditions
THESE PURCHASE ORDER TERMS AND CONDITIONS (“TERMS”), TOGETHER WITH THE ORDERING DOCUMENT THAT REFERENCES THESE TERMS (THE “ORDER”), COMPRISE THE ENTIRE CONTRACT BETWEEN THE SELLER (“Seller”) IDENTIFIED ON THE ORDER AND BACA SYSTEMS, LLC (“BACA”) COVERING THE GOODS (“Goods”) OR SERVICES (“Services”) DESCRIBED ON THE ORDER. THE ORDER AND TERMS TOGETHER ARE REFERRED TO AS THE “CONTRACT”. ANY PROVISIONS IN ANY ACKNOWLEDGEMENT FORM OR OTHER DOCUMENT PREPARED BY SELLER WHICH VARY FROM THE PROVISIONS OF THE CONTRACT SHALL NOT BIND BACA UNLESS BACA EXPRESSLY AGREES IN WRITING. SHIPMENT OF ANY OF THE GOODS SHALL CONSTITUTE SELLER’S ACCEPTANCE OF ALL THE PROVISIONS HEREOF, REGARDLESS OF WHETHER SELLER HAS OTHERWISE FORMALLY ACKNOWLEDGED THE CONTRACT.
Purchase Order Terms and Conditions
1. PRICE. The Contract shall not be filled at higher prices than specified in the Order. If price terms are omitted from the face of the Order the price of the Goods shall be the lower of (a) the price last quoted by Seller; (b) the last price paid by BACA to Seller for like goods, or (c) the prevailing market price at the time of shipment. Seller shall pay any sales, use or other tax on or related to the Goods and on the shipment thereof to BACA.
2. PRICE WARRANTY. Seller warrants that the prices specified herein for the Goods are not less favorable than those currently extended by Seller to its other customers buying the same or similar goods in equal or smaller quantities under similar circumstances. If, before delivery of the Goods, Seller reduces the prices for like goods to one or more of its customers in a status comparable to BACA, the prices specified in the Order shall be likewise reduced.
3. INSPECTION. BACA may inspect the Goods at Seller’s plant, upon receipt, or at such other time or place as it shall choose, notwithstanding its having paid for the Goods prior to inspection. Failure to inspect the Goods shall not be deemed to constitute (a) acceptance of any defective or nonconforming Goods, or (b) waiver of any of BACA’s rights or remedies arising by virtue of any defect or nonconformance. BACA’s failure to specify any defect or nonconformance in rejecting any or all of the Goods shall not prevent BACA from relying on such defect or nonconformance to establish a failure of Seller’s performance hereunder or to justify rejection.
4. PAYMENT. Unless otherwise specified in the Order, payment shall be net thirty (30) days after, and any applicable early payment discount shall be calculated from, the last to occur of (a) receipt of the Goods by BACA at the point of delivery specified on the face of the Order or pursuant to Section 5 hereof, and (b) receipt by BACA of Seller’s invoice acceptable to BACA. Any packing, storage, transportation or delivery charges prepaid or payable by BACA shall be separately stated on Seller’s invoice and shall not be subject to any sales or use taxes. Seller shall pay all such charges unless the Order specifies otherwise.
5. TRANSPORTATION AND RISK OF LOSS. The terms and routing of shipment shall be as specified on the face of the Order or as BACA otherwise directs. BACA may revise shipping instructions as to any unshipped Goods. Shipment shall be F.O.B. place of destination unless otherwise specified in the Order. When shipment is F.O.B. place of destination, risk of loss shall remain with Seller until delivery of the Goods to BACA at its plant and BACA shall not be required to assert any claims against common carriers. When shipment is F.O.B. place of shipment, risk of loss shall pass to BACA upon delivery of the Goods to the common carrier by Seller but only if the Goods are properly addressed, labeled and packaged. Unless otherwise specified in this Section 5, Seller shall assume risk of loss for the Goods until they are delivered to the designated delivery point, regardless of the point of inspection, if any, and Seller shall maintain insurance against loss in transit to such point. Seller shall bear all risk of loss as to properly rejected Goods beginning two days after timely notice of rejection has been mailed by BACA, except that BACA shall be responsible for risk of loss as to Goods so rejected if such loss results from BACA’s negligence.
6. PACKING, MARKING AND SHIPPING. Seller shall pack, mark and ship all Goods in compliance with all applicable transportation regulations and with good commercial practice. Unless expressly noted on the face of the Order, no separate or additional charges shall be payable by BACA for containers, crating, boxing, bundling, dunnage, storage or similar procedures. Any expense incurred by BACA as a result of improper preservation, packing, packaging, marking or method of shipment shall be reimbursed by Seller. A packing list showing the Order number shall be included with each shipment and each container shall be marked to show the Order number.
7. PROMPT DELIVERY OF CONFORMING GOODS. Timely delivery of conforming Goods in the full quantities specified herein is of the essence to the Order. For this reason, Seller agrees to exert every reasonable effort including overtime and premium shipment at Seller’s expense to meet the promised delivery date; provided, however that failure of such efforts to achieve prompt delivery of conforming Goods shall not relieve Seller of liability for such failure. Seller agrees to notify BACA immediately if at any time it appears that the delivery schedule set forth herein may not be met. Such notification shall include the reasons for possible delays, steps being taken to remedy such problems, and a proposed new delivery date. Because timely delivery of conforming Goods is of the essence, BACA may elect to be excused from part or full performance hereunder in the event of delays in delivery of conforming Goods in the quantities specified, regardless of whether such delay or failure is actually or proximately caused by Seller, common carriers, other parties, acts of God, strikes, boycotts, other labor troubles, production delays, scarcity of resources, laws, including changes therein, government orders, riots, war, fire, weather or actual or proximate causes of any other type whatsoever. In addition, Seller shall be liable for all delays or other failures to timely deliver conforming Goods in the quantities specified herein regardless of whether such delays or failures arise or result from actions or inactions of Seller, third parties or from any other actual or proximate cause, whatever its nature. Such liability shall include, without limitation, all consequential, special and contingent damages including losses sustained or anticipated to be sustained by BACA as a result of BACA’s inability to meet its contractual obligations to third parties or to enter into contracts with third parties. If conforming Goods fail to arrive at the destination and within the time specified in the Order, BACA may, but need not, immediately purchase substitutes therefor and Seller shall be liable for all damages and expenses resulting from such failure. Seller further agrees, at BACA’s election, to repair or replace any non-conforming Goods, said repairs and replacements to be made without cost to BACA and promptly following written notice by BACA to Seller.
8. EXCUSE OF BACA’S PERFORMANCE. BACA’s performance hereunder shall be excused if rendered impossible or impracticable. “Impracticable” shall have the same general meaning as in Section 2-615 of the Uniform Commercial Code.
9. LOSS OR DAMAGE CAUSED BY SELLER. In the event that Seller, its employees, agents or subcontractors at any time enter premises occupied by or under the control of BACA, Seller shall indemnify, defend, and hold harmless BACA, its officers, directors, agents, and employees from and against any and all loss, cost, damage, expense or liability resulting from property damage, personal injury or death arising out of or in connection with the actions or omissions of Seller, its employees, agents or subcontractors at any tier. Without in any way limiting the foregoing, Seller shall maintain, and shall require its subcontractors at all times to maintain, public liability and property damage insurance in reasonable amounts in order to cover the obligations set forth in this Section 9 and shall maintain proper worker’s compensation insurance covering all employees performing obligations under the Order. Upon request of BACA, Seller shall furnish to BACA certificates of insurance and any other documents for the purpose of verifying Seller’s compliance with this Section 9.
10. WARRANTIES. (a) By accepting the Order, Seller warrants that the Goods to be furnished hereunder will be (i) in full compliance with BACA’s specifications, blueprints, drawings or data or Seller’s samples, if any, (ii) fit for the use intended by BACA, (iii) merchantable, (iv) delivered free from any actual or threatened claim of patent, copyright or trademark infringement or trade secret misappropriation, (v) delivered with unencumbered title, free and clear of any liens, security interests, or other claims, and (vi) new. (b) Seller agrees that the warranties herein contained shall (i) be in addition to any warranties (A) implied in law, (B) expressly made by Seller other than hereunder, and (ii) survive acceptance and payment by BACA. (c) Seller shall be liable to BACA for all liabilities, including without limitation consequential and incidental damages and expenses (including reasonable attorney fees) actually or proximately arising from any breach of Seller’s warranties and representations. Seller will indemnify, defend, and hold BACA and BACA’s officers, directors, employees, and agents harmless from and against any and all claims by third parties and the liabilities, costs, and damages arising therefrom that in any manner arise from or relate to Seller’s breach of any of the representations and warranties contained in this Section 10.
11. PATENTS. If any litigation or other legal action is brought or threatened against BACA or any of BACA’s officers, directors, employees, or agents claiming infringement of any patent, trademark, trade name, copyright or like right with regard to the Goods or any component thereof, Seller, at its sole cost and expense, shall defend such litigation or legal action and shall indemnify and hold BACA and BACA’s officers, directors, employees, and agents harmless from and against any and all damages, losses, costs, and expenses (including reasonable attorney fees) in any manner arising from or relating to such litigation or legal action.
12. CONFIDENTIAL INFORMATION. Without BACA’s prior written authorization, Seller shall not disclose to any person, drawings, specifications, technical information or other data furnished by BACA to Seller in connection with the Order, nor any other information pertaining to BACA’s affairs, particularly BACA’s engineering developments (collectively “Confidential Information”), except as is necessary for Seller to furnish the Goods pursuant to the Order. Seller must obtain the written agreement of any subcontractor to abide by this confidentiality obligation prior to disclosure of Confidential Information, and Seller is and will remain directly and primarily liable to BACA for any subcontractor’s breach of its confidentiality obligations. Upon termination of the Order, Seller shall return to BACA all Confidential Information in tangible form, and will permanently delete from its systems all Confidential Information in intangible form. Nothing in this Section 12 shall restrict Seller’s right to use or disclose Confidential Information which is or becomes generally known to the public without breach of this Section 12 by the Seller, or is rightfully obtained from other sources.
13. DESIGNS, TOOLS AND MATERIALS SUPPLIED BY BACA. If the Goods are to be produced by Seller in accordance with designs, drawings, or blueprints furnished by BACA, or with the assistance of tools, machinery or equipment furnished by BACA, or are to incorporate or utilize parts and materials supplied to Seller by BACA, Seller shall return the same to BACA at the earlier of completion of the Order or cancellation of the Order. In addition, Seller shall not use the same in the production of materials for any third party or for itself without BACA’s prior written authorization. All such designs, drawings, blueprints, tools, machinery and equipment are and shall remain BACA’s property. Seller shall use such property at its own risk and shall be responsible for all losses of or damage to said property while in Seller’s custody. Seller shall maintain all such property in good condition and repair, and BACA makes no warranties or representations of any nature with respect to such property. Seller acknowledges that all parts and materials supplied by BACA to Seller to be used in producing the Goods have been received in good condition and will be used only for performing the Order. BACA retains the title to said parts and materials and Seller agrees to pay BACA for all such parts and materials lost, damaged or destroyed while in Seller’s possession. If Seller requires additional parts or materials to complete performance of the Order, Seller shall purchase the same from BACA at their then-current prices or at BACA’s direction. Seller, at its own expense, will separately account for all parts and materials supplied by BACA, maintain current and accurate inventory records thereof, and take accurate physical inventory thereof as required by BACA.
14. ASSIGNMENT. Neither the Order nor any interest therein, except the right to receive payment from BACA, may be assigned by Seller without the prior written consent of BACA which may be granted or denied in BACA’s sole discretion. No assignment of the right to receive payment shall affect BACA’s right of setoff against Seller, nor shall such assignment be binding on BACA unless and until BACA receives an executed copy of the assignment and each invoice to be paid to the assignee is clearly marked to show such assignment. This Order shall bind and inure to the benefit of BACA’s assigns and successors including, without limitation, any entity with which or into which BACA shall merge or consolidate.
15. WAIVER AND MODIFICATION. The waiver of any term, condition or provision of the Order by BACA shall not be construed as a waiver of any other such term and condition or provision, nor shall such waiver be deemed a waiver of a subsequent breach of the same term, condition or provision in order to be binding upon BACA; any modification of the Order must be in writing and signed by BACA’s authorized representative.
16. CHANGES. BACA may at any time by written change order, make changes respecting the Goods including, without limitation, changes in (a) the drawings, designs and specification applicable to the Goods; (b) the method of shipping and packing; or (c) the place and time of delivery. If any such change affects the time for or cost of Seller’s performance hereunder, an equitable adjustment shall be made in the delivery schedule and/or the purchase price, but only if Seller submits its written claim for adjustment within twenty (20) days after receipt of BACA’s written change order. Nothing in this Section 16 shall excuse Seller from performing its obligations under the Order as changed.
17. CANCELLATION. At any time prior to Seller’s delivery of the Goods to a carrier BACA may cancel the Order by giving Seller written notice. For completed Goods, Seller’s sole right and remedy following cancellation shall be reimbursement of the difference between the price for the Goods under the Order and the expenses reasonably incurred in producing the Goods. For incomplete Goods, Seller’s sole right and remedy following cancellation shall be reimbursement of the difference between Seller’s actual direct costs incurred for the incomplete Goods and the fair market value of the incomplete Goods at the time of cancellation. In no event shall the amount payable under this Section 17 exceed the price for the affected Goods.
18. GOVERNING LAW. This Order and the contract between the parties evidences hereby, shall in all respects be construed and governed by the laws of the State of Michigan to the extent not preempted by federal law. The United Nations Convention on Contracts for the International Sale of Goods does not in any manner apply to the Order.
19. COMPLIANCE WITH LAW. (a) Seller will comply with any and all laws and regulations applicable to the performance of its obligations hereunder, including, to the extent applicable and without limitation, the Fair Labor Standards Act of 1938, as amended, the Equal Employment Opportunity clause prescribed by Executive Order 11240 dated September 24, 1965, as amended, and export control laws and regulations. Seller will indemnify, defend, and hold BACA and BACA’s officers, directors, employees, and agents harmless from and against any and all losses which BACA may suffer in the event that Seller breaches its obligations under this Section 19.
20. REMEDIES. If Seller breaches the Contract, BACA may exercise, singly or in any combination and in any order, the rights and remedies available to BACA at law or in equity, including without limitation, the right to
(a) Require Seller to repair or replace Goods or any component thereof, and upon Seller’s failure to or refusal to do so, to repair or replace same at Seller’s expense, as set forth in Section 7;
(b) Reject any shipment or delivery or part thereof containing defective or nonconforming Goods,
(c) Cancel any outstanding deliveries under the Order and treat the breach by Seller as Seller’s repudiation of the Order; or
(d) “Cover” and receive from Seller the difference between the cost of cover and the price for the Goods under the Order.
IF BACA IS IN BREACH OF AN ORDER, SELLER’S EXCLUSIVE REMEDY SHALL BE TO RECOVER THE GOODS OR, IN THE EVENT SAID GOODS HAVE BEEN SOLD BY BACA TO A THIRD PARTY, TO RECOVER THE PURCHASE PRICE FOR THE GOODS.
21. BANKRUPTCY OR INSOLVENCY; ADEQUATE ASSURANCE. In the event of (a) the institution of any proceedings by or against either party hereto, whether voluntary or involuntary, under bankruptcy reorganization or insolvency laws, (b) in the event of the appointment of a receiver or trustee or a general assignment for the benefit of creditors of either party hereto, or (c) Seller’s failure to properly respond within ten (10) business days of receipt of BACA’s written demand for adequate assurance of performance, BACA shall be entitled to terminate all pending Orders without incurring any costs or liability to Seller.
22. GENERAL. (a) Seller shall not, without BACA’s prior written consent, make any news release or public announcement concerning the Contract which directly or indirectly identifies BACA. (b) Except as expressly provided herein to the contrary, including without limitation, the provisions hereof respecting Seller’s warranties and representations, all proposals, negotiations, representations and communications regarding the transaction contemplated hereby and made prior to the date of the Contract are merged herein. (c) If any of the terms or provisions provided herein are declared invalid or unenforceable by any court or other body, the remaining terms and provisions hereof shall be deemed valid and enforceable to the extent possible.