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- AMERICAN CHANGER TERMS AND CONDITIONS OF PURCHASE
AMERICAN CHANGER TERMS AND CONDITIONS OF PURCHASE
1. Orders. Each purchase order American Changer Corporation ("Buyer") submits to the seller or provider of any goods or services ("Seller"), including any document(s) attached hereto by Buyer or referencing these Terms and Conditions of Purchase (collectively “Order”) is subject to these Terms and Conditions of Purchase (the "Terms”) .Any additional or different provisions set forth in any quote, catalogue, price list, order acknowledgement or other document is rejected by Buyer, and by accepting and/or taking any action under any Order, Seller agrees to all of these Terms.
2. Price, Performance and Payment. The price(s) for the goods and/or services (a "deliverable" or the "deliverables") is set forth in Buyer's Order, plus any applicable sales tax and freight charges. Buyer shall not be responsible for any other charges, including any shipping and handling or similar charges, unless Buyer’s Order expressly agrees to pay such charges. Buyer will pay the price(s) on the earlier of (I) on the date set forth on the Attachment, or (II) 45 days following the later of Seller's invoice or Buyer's acceptance of the deliverables. Seller agrees not to charge Buyer for any materials, services or other significant expenditures without the prior written approval of Buyer. Unless expressly stated in the Order, all prices are in U.S. Dollars.
3. Delivery and Inspection. Seller shall provide the deliverables F.O.B. Seller’s place of shipment for delivery to Buyer’s facility or other(‘s) place as Buyer designates, on the date or according to the schedule set forth in these terms. Time is of the essence. All deliverables must be packed safely and securely and marked in accordance with applicable laws and regulations and following usual and generally accepted practice and the Buyer's instructions. Seller must notify Buyer, on or before delivery, of any special requirements or hazards relating to transportation and/or storage of the deliverables and all related warnings and instructions required by law must be clearly visible from outside of the container. Deliverables shall be accompanied by all instructions, warnings and notices reasonably necessary for Buyer to properly install, use, service any maintain the deliverables. Deliverables shall include any labels or warnings required by any law rule or regulation including, but not limited to, those pertaining to consumer product safety and those required under California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (also known as “Proposition 65”) and its implementing regulations. All deliverables are subject to inspection. Delivery shall not be deemed to be complete until Buyer shall have inspected and determined the deliverables to be in compliance with these Terms. Deliverables, in part or in whole, not conforming to these Terms, or otherwise defective, will not be deemed delivered or accepted, notwithstanding any payment of the price, inspection or other act signifying acceptance thereof, and Buyer shall have all available rights under the law with respect to such deliverables.
4. Warranty. Seller warrants that all deliverables (I) are free from defect of materials and workmanship, (II) are free of any encumbrances or claim to title or of infringement by others, (III) conform to any specifications, drawings or samples furnished by Buyer and/or Seller; (IV) comply with all applicable federal, state and local laws, rules and regulations, and contain all labels, as may be required by any governmental agency or entity including, but not limited to, those pertaining to consumer product safety as well as those required under California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (also known as “Proposition 65”) and its implementing regulations; (V) comply with all available warranties under the law and (VI) comply with these Terms. To the extent applicable, Seller warrants that (I) all software that constitutes a deliverable is free from programming errors and, that (II) the deliverable meets all certification requirements set forth in the Purchase Order and Attaching, including but not limited to PCI certification. This warranty will survive any inspection, acceptance or payment for a deliverable and may be transferred with the deliverable.
5. Warranty and Indemnity with Respect to California Proposition 65. Seller acknowledges and understands that Buyer will be incorporating and/or reselling the goods purchased from Seller into products shipped to California. Seller represents and warrants that it has fully and accurately disclosed to the Buyer all information necessary for the Buyer to comply with California’s Proposition 65. Seller acknowledges that this representation and warranty is continuing in nature, that it shall apply to any subsequent purchases by the Buyer from the Seller, and that the Buyer is relying on this representation and warranty. Seller acknowledges that this provision is intended to ensure that the Buyer has the information necessary for the Buyer to comply with Proposition 65. Seller shall indemnify, hold harmless and defend the Buyer from and against all claims, damages, losses, penalties, and attorneys’ fees (“Claims”) arising out of the goods’ actual or alleged failure to comply with Proposition 65, unless such Claims result solely from Buyer’s own negligence. Seller further acknowledges and agrees that Buyer may recover from the Seller any and all damages arising out of Seller’s actual or alleged failure to provide complete and accurate information to Buyer relating to Proposition 65, including any statutory penalties, fines, attorneys’ fees and other costs and damages arising out Seller’s breach of this term and condition of sale.
6. Employment and Compliance. Neither Seller nor any of Seller's employees or other representatives shall be deemed for any purpose to be employees of Buyer or Buyer's customers. Seller is solely responsible for the compensation, benefits and insurance of all such persons. Seller shall require all such persons to comply with Buyer's and Buyer's customers’ rules and regulations while on Buyer's or Buyer's customers' premises. Buyer further confirms and warrants that Seller complies with all applicable state and federal rules and regulations applicable to employment, including but not limited to equal and/or fair employment opportunity laws and regulations.
7. Indemnity. To the fullest extent permitted by law, Seller shall indemnify, hold harmless and defend Buyer, its officers, agents, employees and its vendees, and the owner or sub lessor of any property on which any work by Seller is performed ("Indemnitees"), from and against all liability, loss, claims, settlement payments, cost and expense, interest, award, judgment, damages (including punitive damages), diminution in value, fines, fees and penalties or other charges, including but not limited to reasonable attorneys' and witness fees and court costs ("Damages") arising out of or anyway connected with (I) any injury, death or damages sustained by any person, and for damage to property, arising under any legal theory with respect to any deliverables provided hereunder, except only where such injury, death or damage is caused by or results from the sole negligence of Buyer, (II) any actual or claimed infringement by a deliverable of intellectual property rights, (III) Seller's actual or alleged breach of these Terms, (IV) Seller’s actual or alleged failure to comply with federal, state and local laws, rules and regulations applicable to the goods and/or services provided hereunder, and/or (IV) Buyer's enforcement of these Terms. In addition, Seller agrees to indemnify and hold harmless the Indemnitees from and against all Damages, or claims therefore, arising out of, or in connection with, any product recall, repair or modification program or other compliance program or efforts, pursuant to any applicable statute or regulation or any governmental authority, whether the same be voluntary on the part of Buyer, mutually agreed upon by the Buyer and Seller or required by such governmental authority, to the extent such recall, repair or modification program or other compliance program or efforts are caused by defects in the deliverables supplied hereunder.
8. Insurance. Seller will obtain and keep in effect insurance conforming to the insurance requirements attached to the order, or if there are is no attachment, comprehensive general liability insurance with broad form coverage including product liability, property damage, completed operations, contractual coverages, and blanket contractual coverage, including the liabilities Seller assumes hereunder with a combined single limit (bodily injury and property damage) of no less than $2,000,000. In all cases, Seller shall provide Buyer with insurance certificates from a properly licensed insurer having a Best Rating of A- or better evidencing such insurance. All certificates of insurance must be delivered to Buyer prior to undertaking the supply of deliverables and must (I) name Buyer as additional insured on a primary and non- contributing basis (other than for the Workers’ Compensation and Employer Liability Insurance), (II) contain an appropriate waiver of subrogation against Buyer, and (III) require Buyer be notified by the insurer at least thirty (30) days in advance of any cancellation or modification of coverage. All such insurance shall be on an occurrence basis, and Seller waives all rights of subrogation against Buyer. Seller's obligations are not limited in any way by the types or minimum amounts of insurance required to be maintained by this section.
9. Performance of Labor. If the order includes the performance of any labor for the Buyer or any work at the premises of Buyer, including any leased premises, the Seller agrees, in addition to the other requirements hereof (a) that such labor will be performed in a good and workman-like manner in exact accordance with this purchase order or any drawings, specifications or other data forming a part hereof; (b) to procure, at its own expense, and keep in full force and effect, Workers’ Compensation insurance as required by any state in which the work is to be performed; (c) to procure and maintain automobile liability, and ongoing and completed operations insurance coverage; (d) that Seller's insurance and insurance certificate shall cover and name American Changer, Inc. in the same manner as Buyer; and (e) if this order includes installation, Buyer may withhold 10% of the price, or any greater amount specified in this Buyer order, until inspection after installation, but any such withholding of a portion of the price shall in no way limit Seller's liability for improper performance of the order. Should the Seller engage a subcontractor, the same conditions will apply under these terms to each subcontractor. The subcontractor shall be responsible for securing certificates of insurance and endorsements/policies where necessary from all subcontractors for insurance coverage limits no less than the limits indicated in these terms and shall make such documents available to Buyer upon request.
10. Operating Manuals and Drawings. Seller will supply, at its own expense, proper operating, training, and maintenance manuals, drawings, labels and any other documentation that is required for the use of the deliverables pursuant to these Terms and under applicable laws and regulations. Seller will provide, at its own expense, and in form, number, and in time to comply with the terms, any designs, shop drawings, samples and mock-ups.
11. Intellectual Property. Seller hereby expressly consents and agrees that (I) all deliverables provided to Buyer as a result of services provided under these terms, and (II) any dies, tooling, drawings, specifications or similar items created by Seller or its agents in order to produce deliverables are "works for hire" and that Buyer shall own the same and any and all intellectual property rights associated with the same. To the extent any such items do not qualify as "works for hire", Seller expressly agrees that the ownership of all such items, including, without limitation, all patents, copyrights or trade secrets, shall be the sole property of the Buyer. To the extent the same is not automatically assigned to Buyer, Seller agrees to take all measures, at Seller's expense, to perfect such rights in Buyer, and appoints Buyer as Seller's attorney-in-fact with the limited power to execute assignments of such deliverables.
12. Termination. Buyer may terminate, cancel or modify the quantity or delivery terms (I) as to deliverables that have not yet been accepted, at any time and for any reason, by written notice to Seller; or (II) immediately upon the bankruptcy or insolvency of Seller or Seller's breach of these terms. If Seller is not in breach of these terms, Buyer will pay a reasonable price for deliverables accepted on or before the date of cancellation or termination. Buyer is not liable for any other costs, expenses, losses, damages or liabilities arising out of such cancellation or termination. Termination or cancellation will not alter or terminate any of the parties' obligations under any section of the terms that by its nature extend beyond the termination of these terms.
13. Assignment/Subcontract. Seller may not delegate or assign any duties or rights under these terms without Buyer's prior written consent which may be withheld for any or no reason. Any such delegation or assignment in violation of this section is void. Buyer may assign any of its rights under these terms upon written notice thereof to Seller.
14. Governing Law/Venue. These terms shall be governed by and construed in accordance with the laws of the State of Florida, without regard to its principles of conflicts of laws, and shall not be governed by the provisions of the United Nations Convention on Contracts for International Sales of Goods. The parties agree that all actions or proceedings between them shall be tried and litigated only in the state and federal courts located in the County of Broward, Florida. Except as expressly stated in the order, all references to currency mean U.S. dollars.
15. Severability/Revision. Should any provision of these terms be held by a court of law, or other body having proper jurisdiction to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of these terms shall not be affected or impaired thereby and the parties agree that partial enforcement of these terms or revisions of the illegal, invalid or unenforceable provision is appropriate.
16. Notices. To be effective, all notices and other communications under these terms shall be in writing and sent to the intended recipient by personal delivery, by registered or certified mail, return receipt requested, or recognized overnight courier, at the party's address as set forth in these terms. Each party may change its address for receipt of notice by giving notice of such change pursuant to this section. Notice is given immediately upon personal delivery, or three business days following the date on which such notice is mailed in accordance with this section, or the next day following the date on which such notice is sent by overnight courier.
17. Entire Agreement. These terms constitute the entire agreement between the parties as to the subject matter thereof, and may be modified, or any right waived, only by a written document signed by the party to be charged that specifically references these terms and the section(s) so modified.