The terms and conditions of this Purchase Order, including those on the face hereof and those set forth below and in the Supplemental Terms and Conditions attached hereto, if any, represent the entire agreement between Seller and Monadnock. Acceptance is limited to the terms and conditions of this Purchase Order, and no purported revisions of, additions to, or deletions from this Purchase Order shall be effective, whether in Seller’s proposal, invoice, acknowledgment or otherwise, and no local, general or trade custom or usage, shall be deemed to effect any variation herein unless expressly agreed to in writing by Monadnock’s authorized representative. The deliver of any goods or the furnishing of any services pursuant to this Purchase Order shall constitute acceptance by Seller of this Purchase Order subject to, and in strict accordance with, all of its terms and conditions. To the extent that terms appearing on the face of this Purchase Order are inconsistent with those set forth herein, the terms on the face shall govern. Any reference on the face of this Purchase Order to Seller’s proposal shall be exclusive of any terms and conditions attached to or referred to therein.
All goods and services furnished pursuant to this Purchase Order shall strictly conform to the specifications, descriptions and warranties set forth in this Purchase Order. No change in this Purchase Order shall be made except upon written application to, and subsequent written authority of, Monadnock.
3. Time and Place of Deliver; Monadnock’s Inspection; Acceptance
Time is of the essence of this Purchase Order. Delivery will be made as specified on the face of this Purchase Order. Monadnock reserves the right to reject goods and to cancel all of any portion of this Purchase Order in the event of failure to deliver at the time and place specified. Monadnock’s acceptance of any part of a shipment not delivered as specified herein shall not obligate Monadnock to accept the remainder of that shipment or any future shipments. If Seller is required to provide Material Safety Data Sheets, they will be delivered to Monadnock prior to delivery of any goods under this Purchase Order. All goods shall be received subject to Monadnock’s inspection and acceptance, and subject to Monadnock’s right to reject and return at Seller’s expense goods, which fail to conform strictly to the requirements of this Purchase Order. All materials are subject to inspection and testing by Monadnock at manufacturer’s plant.
4. Extension of time of Deliver
Monadnock shall not be liable to Seller for any failure of Monadnock to take any delivery hereunder when due, if occasioned by any event beyond Monadnock’s reasonable control, including without limitation fire, flood, earthquake, lightning or other acts of God; acts of, or compliance with the directions of, civil or military authority, including any federal, state or local agency or authority; wars; riots; insurrections; sabotage; accident; embargo; strike or other labor trouble; interruption of or delay in transportation; shortage or failure of supply of materials; or equipment breakdown. At Monadnock’s option, the time for delivery hereunder shall be extended to the extent of the delay occasioned by any such circumstance and the deliveries so omitted shall be made during the period of such extension.
5. Risk of Loss
Risk of loss of any goods sold hereunder shall transfer to Monadnock at the time and place of delivery; provided that risk of loss prior to actual receipt of the goods by Monadnock shall nonetheless remain with Seller.
Goods must be shipped by the particular route, method and carrier as stated in this Purchase Order. In the event that Seller fails to ship goods on or before any scheduled shipping date, Monadnock shall have the right to specify a more rapid method of shipment than was specified originally and Seller shall bear, at no additional cost to Monadnock, any increased costs occasioned thereby.
7. Packing, Marking, and Invoicing
A packing list shall be included with each shipment. Two copies of Seller’s invoices, together with original bills of lading, properly signed by carrier’s representative, shall be forwarded to Monadnock not later than the day after shipments are made. Individual invoices shall be issued for each separate shipment. Monadnock shall not be charge for packaging, boxing, crating or cartage. All invoices, packing lists, bills of lading, and each separate package within each shipment shall clearly reference piece number, Monadnock’s Purchase Order number and Seller’s packing slip number. Partial shipments must be identified as such on the shipping memoranda and invoices.
8. Payment; Waiver of Liens
Payment will be made following receipt and acceptance of the goods and receipt, in proper form and substance, of all documentation required by this Purchase Order. Monadnock shall not be obligated to pay any seller invoice submitted greater than twelve months following the delivery of goods or services unless agreed to in writing in advance. Seller shall furnish to Monadnock any analysis or breakdown of the price as Monadnock may reasonably request. This Purchase order shall not be filled at prices higher than last quoted or charged by Seller, except as expressly agreed by Monadnock. As a condition to any payment hereunder, Seller shall furnish to Monadnock, upon request, an executed waiver of liens and claims in form reasonably satisfactory to Monadnock. Seller agrees to indemnify, defend and hold harmless Monadnock from and against any and all liens and encumbrances arising out of Seller’s performance of this Purchase Order or rising out of any claim for payment by any laborer, subcontractor or supplier of Seller
9. Seller’s Warranties
Seller expressly warrants that for a period of one year after Monadnock’s acceptance of the goods or services hereunder, or for such longer period as may be expressly provided in the Purchase Order or under applicable law, all goods and services covered by this Purchase Order will (a) strictly conform to Seller’s specifications, drawings, samples and other written materials and descriptions, or, to the extent the goods were purchased to Monadnock’s specifications and drawings as set forth or refereed to in this Purchase Order, that the goods strictly conform with those specifications and drawings; (b) be free from defects in design, material and workmanship; (c) be of merchantable quality and suitable for the particular purposes intended, whether express or reasonably implied; and (d) bear all warnings, labels, and markings required by applicable laws and regulations. In addition, Seller warrants that: (e) none of the goods covered hereby, to the extent they are subject to laws prohibiting adulteration or misbranding, is adulterated or misbranded within the meaning of such laws as of the date of delivery to Monadnock; (f) all goods covered hereby may be introduced into interstate commerce without violation of applicable laws and regulations; (g) all services have been performed in a good and workmanlike manner; and (h) all goods and services furnished or rendered pursuant to this Purchase Order have been produced, sold, delivered or rendered to Monadnock in compliance with all applicable laws and regulations, including those set forth in Section 14.
10. Monadnock’s Remedies
Monadnock’s acceptance of all or any part of the goods or services provided hereunder shall not be deemed a waiver of the failure of such goods or services to conform to all of the warranties set forth in Section 9. Monadnock retains the right to cancel any portion of the remaining order, to reject any portion of the goods or services delivered, or to revoke acceptance as to any portion of the goods or services accepted, and return such goods to Seller and to recover the purchase price, costs of removal or recall, transportation and custodial expenses, injury to person or property incurred by Monadnock, all in addition to Monadnock’s other remedies under this Purchase Order or applicable law. If Seller becomes insolvent or makes an assignment for the benefit of creditors, or files or has filed against it any petition in bankruptcy, Monadnock shall have the right to cancel this Purchase Order immediately.
11. Patent, Copyrights, Trademarks
Seller warrants that the goods furnished under or used in connection with this Purchase Order (except those furnished according to Monadnock’s specific design) and Monadnock’s express or reasonably implied intended use thereof, do not and will not infringe any patent, copyright, trademark, trade secret or other proprietary right of any third party. If any claim, suit or proceeding is made or instituted against Monadnock alleging any such infringement, Seller shall indemnify, defend and hold Monadnock harmless from and against any damages, liabilities, judgments, costs and expenses (including without limitation reasonable attorney’s fees) if may incur in connection with any such claim, suit or proceeding. In the event that the goods or Monadnock’s use is held in any suit or proceeding to constitute an infringement, of if Seller determines that there is a substantial risk of a finding of such infringement, Seller agrees, as appropriate, and at its expense to: (a) procure for Monadnock, at no expense to Monadnock, the right to continue using the goods, (b) replace the goods with equivalent goods that meet the requirements of this Purchase Order and that do not infringe any such rights, or (c) modify the goods so that they become non-infringing.
To the fullest extent permitted by law, Seller agrees to indemnify, defend, and hold harmless Monadnock, its affiliates, and their respective directors, officers, employees and agents (the “Indemnified Parties”) from and against all claims, demands, causes of action, losses, costs and expenses (including without lamination reasonable attorneys’ fees and costs of defense) (collectively, “Losses”) arising out of or incident to Seller’s performance hereunder, or the presence of Seller, its employees, agents or invitees (“Seller Parties”) on Monadnock premises, provided that such Losses are attributable to (a) the negligence or willful misconduct of the Seller Parties, (b) the failure of the Seller Parties to comply with applicable laws, or (c) bodily injury, sickness, disease or death (including employees of Seller or Monadnock), or to damage to or destruction of tangible property (including the loss of use thereof); in each case regardless of whether or not caused in part by the negligence or other fault of any Indemnified Party hereunder; provided that Seller shall not be liable for Losses caused by the sole negligence or willful misconduct of any Indemnified Party.
Seller’s indemnification obligations under this Section 12 shall not be limited by applicable Workers’ Compensation or other disability or employee benefit laws, and, solely as respects the indemnities set forth in this section, Seller hereby expressly waives any rights it may have to assert any immunities or defenses that it may have under such laws against any Indemnified Party.
13. Labor, Work and Services; Insurance
In supplying any services hereunder, Seller warrants that it is, and undertakes such performance as, an independent contractor, with sole responsibility for the payment of all federal and/or state unemployment insurance, social security and/or other similar taxes incurred hereunder. Any performance by Seller under this Purchase Order on Monadnock’s premises shall be in full compliance with Monadnock’s safety and other rules and procedures and with all federal and state laws and regulations regarding workplace safety, including without limitation, laws pertaining to occupational premises and until the satisfactory completion thereof, Seller shall, at its expense, maintain the following minimum insurance coverages on an “occurrence” basis (and not on a “claims made” basis)
> Kind of Insurance
> Workers’ Compensation
> Employer’s Liability
> Commercial General Liability including Contractual Liability
and Products/Completed Operations
> Business Auto Liability
> Symbol 1 (Any Auto) including
> Hired and Non-Owned Autos
$1,000,000 bodily injury by accident, each accident
$1,000,000 bodily injury by disease, policy limit
$1,000,000 bodily injury by disease, each employee
Combined Single Limits:
$2,000,000 General Aggregate
$2,000,000 Products/Completed Operations
Combined Single Limits:
Sell shall furnish Monadnock certificates of insurance showing the above coverages with an insurer with an AM Best rating of “A VIII” or better and providing for at least thirty (30) days prior written notice of cancellation or modification resulting in a reduction below the required minimum coverages and naming Monadnock as an additional insured under Commercial General Liability using ISO from CG 20 26 or its equivalent, or in the case of Monadnock’s distribution of Seller’s products, ISO form CG 20 15 or its equivalent, If Seller fails to furnish such certificates or maintain such insurance, Monadnock shall have the right to cancel this Purchase Order Immediately. Seller, for itself and its insurers, hereby waives subrogation against Monadnock, and Seller agrees that, with respect to claims against Monadnock arising out of Seller’s performance hereunder, Seller’s insurance shall be primary and Monadnock’s insurance shall be excess and non-contributory. Seller’s obligations to maintain such insurance shall in no way limit the liability or obligations assumed by Seller hereunder.
14. Laws and Regulations
All goods furnished or services rendered pursuant to this Purchase Order shall be produced, sold, delivered, or rendered to Monadnock in compliance with all applicable laws and regulations, including without limitation, the Federal Fair Labor Standard Act of 1938, as amended, Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act of 1967, Section 503 of the Rehabilitation Act of 1973, Executive Order 11246, Section 402 of the Vietnam Veterans’ Readjustment Assistance Act of 1974, the Occupational Safety and Health Act of 1970, as amended (“OSHA”), (in the event of a conflict between the requirements of OSHA and any industry codes or standards applicable to this Purchase Order, the more stringent requirement shall apply), the Noise Control Act of 1972, all applicable environmental laws and regulations, including without limitation, the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, and the standards of accessibility set forth in Section 402 of the Americans with Disabilities Act, and the rules, regulations and orders pertaining to the above.
Seller also agrees that the following clauses from the Code of Federal Regulations shall also apply to this Purchase Order and shall be incorporated herein by reference: the Equal Employment Opportunity Clause, the Certification of Nonsegregated Facilities required by paragraph (7) of Executive Order 11246, the Utilization of Minority Business Enterprises and the Minority Business Enterprises Subcontracting program clauses, the Affirmative Action for Handicapped Worker’s clause, and the Affirmative Action for Disable Veterans and Veterans of the Vietnam Era clause are, by this reference, incorporated herein and made part hereof.
Monadnock may at any time, without cause, terminate this Purchase Order in whole or in part upon written notice to Seller. In such event, Seller shall be entitled to a reasonable termination fee consisting of a percentage of the Purchase Order price reflecting the percentage of the work, goods delivered or services properly performed prior to termination. Payment of such termination fee shall be Seller’s sole remedy. Upon Monadnock’s request, Seller shall preserve, protect and deliver to Monadnock, at Monadnock’s expense, materials on hand, work in progress, and completed work, both in its own and in its suppliers’ plants.
16. Assignment and Set-Off
Seller shall not assign its rights or delegate its performance hereunder, nor any interest herein, without Monadnock’s prior written consent and any attempted assignment or delegation without such consent shall be void. Monadnock shall be entitled at all time to set-off any amount owing from Seller to Monadnock, whether under this Purchase Order or otherwise, against any amounts otherwise payable to Seller.
Seller and its directors, officers, employees and agents shall not disclose to any third party any information pertaining to the goods provided or services performed hereunder, or pertaining to Monadnock’s business or operations which Seller obtains or has access to in connection herewith, without the prior written consent of Monadnock.
18. No Waiver of Defaults
No failure by Monadnock to enforce at any time any of the terms or conditions of this Purchase Order shall constitute a waiver thereof or in any way impair Monadnock’s right at any time to avail itself of such remedies as it may have to enforce such terms or conditions. No waiver by Monadnock hereunder will be effective unless in writing and signed by Monadnock.
19. Survival; Remedies Cumulative
All agreements and representations of Seller herein (including those regarding, confidentiality, indemnification and warranties) shall survive delivery and final payment hereunder, or any earlier termination hereof. All of the rights and remedies available to Monadnock hereunder are in addition to, and not in limitation of, the rights and remedies otherwise available at law or in equity.
Any provision of the Purchase Order that is unenforceable in any jurisdiction shall be ineffective to the extent of such unenforceability (but shall be enforced to the maximum extent permissible) without invalidating the remaining provisions hereof.
21. Governing Law; Attorney’s Fees
Unless otherwise agreed to by the parties, any controversy or claim arising out of or relating to this Contract or any applicable Supply Purchase Agreement or Order shall be interpreted and enforced in accordance with the laws, other than the Choice of Law rules, of the State of New Hampshire. The prevailing party will be entitled to reimbursement from the other party of all reasonable expenses, costs and attorneys fees incurred in any legal proceeding.