The terms and conditions of this order shall become a binding contract and exclusive agreement between the parties in accordance with the terms set forth herein when accepted by Seller, either by acknowledgment, commencement of performance, or acceptance of payment, whether in whole or in part. This order expressly limits Seller’s acceptance to the terms of this order. These terms shall prevail over any terms and conditions contained in any other documentation and expressly exclude any of Seller’s general terms and conditions of sale or any other document issued by Seller in connection with this order. Any modification, alteration or condition of acceptance indicated by written acknowledgment or course of conduct in conflict, inconsistent with or in addition to the exact terms of this order, whether deemed of material affect or not, are objected to and are rejected unless otherwise accepted and confirmed in writing by purchase order amendment signed by McNichols Company (“McNichols”). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is entered into with respect to materials covered hereby, the terms of said contract shall prevail to the extent they are inconsistent with these terms and conditions.
(a) Unless otherwise specified herein, there shall be no charges for special handling, such as but not restricted to boxing, carting, bundling, dunnage, drayage, or storage, and, unless otherwise specified herein, all shipments are to be prepaid FOB destination. Title shall pass to McNichols upon delivery to the McNichols. The entire risk of loss, injury or destruction of the materials shall be borne by Seller until the goods are delivered to and accepted by McNichols. To the extent that specifications for shipment are not identified in this order; preservation, packaging, packing and routing shall be in accordance with best commercial practice which will permit securing lowest rates for safe, economical transportation and timely delivery. Seller's invoices shall separately identify shipping charges and have attached thereto the original or a copy of the receipted freight bill indicating that payment for shipment has been made. Invoices and bills of lading shall be sent to McNichols within twenty four (24) hours after the date of shipment. (b) Seller shall route shipments in accordance with McNichols’ instructions and plainly mark McNichols’ purchase order number and type on all invoices, packages, bills of lading and shipping orders. (c) A packing list shall accompany each shipment showing: (1) McNichols’ purchase order number and type. (2) Shipper's name and address. (3) A general description of the articles contained therein including the quantity thereof, and (4) Location of the plant to which the articles are to be shipped. (d) Seller shall either reimburse McNichols or accept a debit against his account for all expenses incurred by McNichols as a result of any improper packing, marking, and shipment or routing by Seller. (e) Except as otherwise specified herein, Seller shall ship exact quantities ordered and shall not ship in advance of schedule. Shipments in excess of those authorized may be returned to Seller at Seller's risk and expense for all handling and transportation related to such shipment.
All material shall be received subject to McNichols’ inspection and rejection. McNichols, at its sole option, may inspect all or a sample of the materials and may reject all or any portion of the materials if it determines such materials are nonconforming or defective. If McNichols rejects any portion of the Materials, McNichols has the right, effective upon notice to Seller, to: (a) rescind the order in its entirety, whereby such defective or nonconforming material shall be returned to Seller, at Seller’s risk and expense, or (b) accept the materials at a reasonably reduced price. No materials returned as defective shall be replaced without a new order and schedule. Payment for material on this order prior to inspection shall not constitute an acceptance thereof, nor will acceptance remove Seller's responsibility for latent defects.
McNichols may withdraw the order at any time before it is accepted by Seller. Following acceptance of this offer, the order may not be cancelled or terminated by Seller without prior written consent of McNichols. McNichols shall have the right to cancel or terminate this order (1) if at any time all terms and conditions herein and on the face hereof governing this order are not strictly complied with by Seller, (2) McNichols does not approve any requested change in price, (3) in the event of any delay in shipment of the goods ordered, (4) if at any time Seller becomes bankrupt or insolvent or proceedings in bankruptcy or insolvency are commenced by or against Seller. In the event of cancellation or termination for any one or a combination of the foregoing reasons, all obligations of McNichols shall be null and void. McNichols shall also have the right upon reasonable notification to Seller, to cancel or terminate this order for any reason, including default by Seller, whereupon McNichols shall have the right to require Seller to transfer title to and deliver to McNichols any completed goods and material that Seller has produced or acquired specifically for this purchase order, in which event the sole and exclusive liability of McNichols shall be to pay Seller (1) the purchase price for goods satisfactorily completed and delivered prior to the time of termination or cancellation and (2) the reasonable costs actually expended by Seller on goods not delivered, exclusive of anticipated profits and less the reasonable value of such goods; provided, however, the maximum amount paid upon termination or cancellation shall not exceed the purchase price of those goods cancelled or terminated and McNichols shall not be liable to Seller for any other damages, special, incidental, consequential, penal, liquidated or otherwise.
Seller hereby warrants to McNichols and its purchasers that it has title to the goods described on the face hereof, free of liens and encumbrances; the goods described on the face hereof shall conform strictly to specifications without modification thereof or substitutions or variations in quality or quantity with respect thereto, other descriptions stated on the face hereof, and samples and representation; the goods are fit for their intended purpose and are merchantable; the goods do not infringe upon the patent, copyright, trademark or trade secret rights of any person; and the goods shall be of good quality and free from all defects in materials, design and workmanship. McNichols relies upon the accuracy of such warranties of Seller, which accuracy and warranties shall be a condition precedent to performance by McNichols of its obligations hereunder; be a part of the basis of the bargain, survive inspection, acceptance, payment, sale by McNichols and subsequent use; and, inure to McNichols, its purchasers and users. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of McNichols’ discovery of the noncompliance of the materials with the foregoing warranties.
(a) Seller covenants that, in performance hereof, it will comply with all applicable laws, rules, regulations or orders of the United States Government, or of any state or political subdivision thereof, including without negatively implying exclusion of others, the applicable provisions of the Fair Labor Standards Act as amended. Seller shall certify in each invoice that it has complied with the provisions of the Fair Labor Standards Act. Seller shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this order. Seller shall indemnify and save McNichols harmless against any claims, suits, demands, and all costs, damages and expenses arising out of its failure to fulfill this covenant. Seller shall comply with all export and import laws of all countries involved in the sale of the materials covered by this order or any resale of the materials by Seller. Seller assumes all responsibility for shipments of materials requiring any government import clearance. McNichols may terminate this order if any governmental authority imposes antidumping or countervailing duties or any other penalties on the materials. (b) Where not otherwise specifically provided for under this order, Seller agrees that the terms and conditions of sale controlling the right, obligations, liabilities and performance as between the parties shall be in accordance with the laws of the State of Florida.
The Seller's right to payment is contingent upon McNichols’ approval and acceptance of articles delivered or services rendered in accordance with the terms and specifications called for by this order, but payments of the stipulated price is not evidence of McNichols’ final acceptance of that which is called by this order. Payment shall be subject to subsequent adjustment for shortages and allowance for articles rejected. All payments will be made in US Dollars, unless previous arrangements are made in writing prior to issuance of the purchase order. Without prejudice to any other right or remedy it may have, McNichols reserves the right to set off at any time any amount owing to it by Seller against any amount payable by McNichols to Seller. In the event of a payment dispute, the parties shall seek to resolve such dispute expeditiously and in good faith. Seller shall continue performing its obligations under this order notwithstanding any such dispute.
Seller hereby covenants and agrees to indemnify and hold McNichols and its officers, directors, shareholders, affiliates, customers and clients (collectively, the "Indemnified Parties") harmless from and against any injury, death, damage, liability, claim, actions, suits, proceedings, hearings, investigations, charges, complaints, claims, demands, injunctions, judgments, orders, decrees, rulings, damages, dues, penalties, fines, costs, amounts paid in settlement, liabilities, obligations, taxes, liens, losses, expenses, and fees (including court costs and reasonable attorneys' and paralegals' fees and expenses) (collectively, "Adverse Consequences"), that any one or more of the Indemnified Parties may suffer resulting from, arising out of, relating to, in the nature of, or caused by any one or more of the following (whether or not involving a third party claim): (a) the breach (or alleged breach) of any representation, warranty or covenant of Seller; (b) the gross negligence or misconduct of Seller, its employees, affiliates or agents; or (c) the delivery, sale, resale, use or consumption of any product provided by Seller (including without limitation, Adverse Consequences arising out of or relating to defective product) which Adverse Consequences are not a result of the Indemnified Party's own gross negligence or intentional misconduct. Without prejudice to any other right or remedy it may have, McNichols reserves the right to set off at any time any amount owing to it by Seller under this clause 8 against any payment payable by McNichols to Seller. Nothing in these terms shall exclude or limit (a) Seller’s liability under clause 5 above or this clause 8, (b) Seller’s liability for fraud or (c) Seller’s liability for personal injury or death caused by its negligence or willful misconduct.
After acceptance hereof, Seller cannot thereafter assign its obligations hereunder to any other person or entity without the written approval of McNichols. Seller, may, however, assign its right to payment hereunder, in which event the sole obligation of McNichols with respect to payment shall be to pay the assignee designated in writing to McNichols by Seller. McNichols reserves its right to assign its rights and obligations hereunder without recourse by Seller or its approved assignees. Any purported assignment or delegation in violation of this clause shall be null and void.
Any materials furnished by McNichols in connection with any order on other than a sales basis (usually material to be perforated, expanded or otherwise processed) shall remain McNichols’ property and shall be held by Seller as bailee. Seller agrees, however, to pay the market price of any such material that is destroyed, spoiled or damaged while in its possession, or not returned to McNichols in a satisfactory condition regardless of whether Seller is at fault. Unusual quantities of spoiled material must be reported to McNichols promptly and Seller agrees to furnish reports of scrap upon request.
Seller will acquire knowledge of McNichols Confidential Information (as defined below) in connection with its performance hereunder and agrees to keep such McNichols Confidential Information in confidence during and following termination or expiration of this order. ''McNichols Confidential Information" includes but is not limited to all information, whether written or oral, in any form, including without limitation, information relating to acquisition and/or sourcing, methods of secondary manufacture, trade secrets, business plans, customers, vendors, finances, personnel data, Work Product (as defined herein) and other material or information considered proprietary by McNichols relating to the current or anticipated business or affairs of McNichols which is disclosed directly or indirectly to Seller. In addition, McNichols Confidential Information means any third party's proprietary or confidential information disclosed to Seller in the course of providing services or goods to McNichols. McNichols Confidential Information does not include any information (i) which Seller lawfully knew without restriction on disclosure before McNichols disclosed it to Seller, (ii) which is now or becomes publicly known through no wrongful act or failure to act of Seller, (iii) which Seller developed independently without use of the McNichols Confidential Information, as evidenced by appropriate documentation, or (iv) which is hereafter lawfully furnished to Seller by a third party as a matter of right and without restriction on disclosure. In addition, Seller may disclose Confidential Information which is required to be disclosed pursuant to a requirement of a government agency or law so long as Seller provides prompt notice to McNichols of such requirement prior to disclosure. Seller agrees not to copy, alter or directly or indirectly disclose any McNichols Confidential Information. In no event will Seller use less than the degree of care and means that it uses to protect its own information of like kind, but in any event not less than reasonable care to prevent the unauthorized use of McNichols Confidential Information. Seller further agrees not to use the McNichols Confidential Information except: in the course of performing hereunder and will not use such McNichols Confidential Information for its own benefit or for the benefit of any third party. All McNichols Confidential Information is and shall remain the property of McNichols. Upon McNichols written request or the termination of this order, Seller shall return, transfer or assign to McNichols all McNichols Confidential Information, including all Work Product, as defined herein, and all copies thereof. “Work Product” includes but is not limited to any and all promotional and advertising materials, catalogs, brochures, plans, customer lists, inventions, discoveries, improvements, trade secrets, secret processes and any technology, know‐how or intellectual property made or developed or conceived by McNichols and itsofficers, directors, shareholders and affiliates. McNichols shall be entitled to injunctive relief for any violation of this clause.
McNichols representatives shall have right of access to quality management system documentation, all applicable records and all facilities involved in the execution of the Purchase Order for the purpose of audit, inspection, or other verification activities during normal business hours, upon reasonable notice. McNichols shall have access to all records Seller is required to maintain, for as long as such records are required to be retained. Audit rights shall be available to McNichols on all performance related reports and other records, except records pertaining to proprietary indirect cost data. McNichols may inspect all work at reasonable times and places, including, when practicable, during manufacture and before shipment. Seller shall provide all information, facilities, and assistance necessary for safe and convenient inspection without additional charge. No such inspection shall relieve Seller of its obligations to furnish and warrant all work in accordance with the requirements of the order. McNichols’ final inspection and acceptance shall be at destination per clause 3.
For purposes of this clause, “Qualified Personnel” is defined as those individuals who are mutually recognized by McNichols and Seller as essential to the successful completion and execution of a purchase order and are trained to McNichols requirements. Personnel designated as “Qualified Personnel” shall be assigned to the extent necessary for the timely completion of the task to which assigned. Any substitution or reassignment involving Seller’s “Qualified Personnel” assigned to this work shall be made only with persons of equal abilities and qualifications and is subject to prior approval of McNichols, in writing.
The Seller’s product, process control and quality records shall be retained at the Seller’s location for a minimum of five years, unless a longer retention period is specified in the purchase order or drawing. The Seller’s product, process control and quality records shall be adequate to ascertain the quality level of production processes. This includes chemical and physical test results of raw material used in the manufacture of the item(s) on the purchase order. The Seller shall provide product, process control and quality records upon request from McNichols.
The Seller’s Quality Management System shall ensure all relevant Purchase Order requirements are flowed down to their sub‐tier sellers. The Seller’s sub‐tier sellers shall be responsible for compliance to the same specifications and requirements specified on the Purchase Order.
Seller shall, at its own expense, maintain and carry insurance in full force and effect with financially sound and reputable insurers and in such amounts and against such risks as is normally carried by companies engaged in comparable businesses. Upon McNichols’ request, Seller shall provide McNichols with a certificate of insurance from Seller's insurer evidencing such insurance, which shall name McNichols as an additional insured.
No waiver by McNichols of any of the provisions of this order is effective unless explicitly set forth in writing and signed by McNichols. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this order operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
The relationship between the parties is that of independent contractors. Nothing contained in this order shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
Any legal suit, action or proceeding arising out of or relating to this order shall be instituted in the federal courts of the United States of America or the courts of the State of Florida in each case located in Hillsborough County, Florida, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. At the election of either party, any controversy or claim arising out of or relating to this order, or the breach thereof, shall be determined by final and binding arbitration conducted in Hillsborough County, Florida. Any award rendered by the arbitrator shall be final and binding on the parties and may be entered and enforced in any court having jurisdiction.
If any term or provision of these terms and conditions is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these terms and conditions or invalidate or render unenforceable such term or provision in any other jurisdiction.
Provisions of these terms and conditions which by their nature should apply beyond the term of this order will remain in force after any termination or expiration of this order including, but not limited to, clauses 5, 6, 8, 11, 14, 19 and this clause 21.