1. CONTRACT – These Terms and Conditions of Purchase (“Terms and Conditions”) apply to purchases (“Orders”) by Monmade, LLC (“PURCHASER”) for products and/or services (“Goods”) supplied by seller (“SELLER”). Orders may be in the form of purchase orders or other order documents issued by PURCHASER. SELLER’S ACCEPTANCE OF ANY ORDER ISSUED BY PURCHASER IS EXPRESSLY MADE CONDITIONAL ON SELLER’S ASSENT TO THESE TERMS AND CONDITIONS AND PURCHASER HEREBY OBJECTS TO ANY ADDITIONAL OR DIFFERENT TERMS IN ANY RESPONSE TO THIS OFFER. The parties intend that these Terms and Conditions, together with the description of Goods and other information on PURCHASER’s Order, constitute the final, complete, exclusive and fully integrated terms of the contract. Any other prior or contemporaneous agreements, oral or written, are hereby negated. Any modification or waiver of these Terms and Conditions, whether evidenced by language or conduct, shall be null and void unless they are evidenced by a writing signed by an authorized representative of PURCHASER. PURCHASER hereby rejects all pre-printed terms and conditions proposed by SELLER in any quotation issued by SELLER, even if there is a reference in an Order to SELLER’s quotation or other form related to the Goods. SELLER’S WRITTEN ACKNOWLEDGMENT OF AN ORDER, COMMENCEMENT OF WORK ON THE GOODS, OR DELIVERY OF ANY GOODS HEREUNDER WILL CONSTITUTE ITS UNCONDITIONAL ACCEPTANCE OF THESE TERMS AND CONDITIONS.
2. CHANGE ORDERS – PURCHASER reserves the right at any time to make changes in any one or more of the following; (a) specifications, drawings and data for items to be specially manufactured by SELLER for the PURCHASER, (b) methods of shipment or packing, (c) place of delivery, and (d) times of delivery. If any such change causes an increase or decrease in the cost of or the time required for delivery of the Goods pursuant to this Order, SELLER shall notify PURCHASER in writing (with sufficient supportive detail and documentation) within five (5) days after receipt of PURCHASER’s notice, of and the extent to which SELLER believes such changes so affect the cost or time of performance. PURCHASER and SELLER shall mutually agree in writing to an equitable adjustment of the price or delivery date, as the case may be, to reflect the effect of such change. SELLER’s failure to so notify PURCHASER shall be deemed a waiver of any right to claim any adjustment as provided hereunder or otherwise. Price increases, extensions of time for delivery or any other substitution, change or modification shall not be binding on PURCHASER unless evidenced by a change notice issued and signed by PURCHASER.
3. CANCELLATIONS – For custom made GOODS, PURCHASER may in its sole discretion, cancel all or any portion of this Order at any time provided that PURCHASER shall pay for all work completed by SELLER prior to the date of termination based on the percentage of work completed. In no event shall PURCHASER be required to pay SELLER more than the original purchase price for custom made GOODS for cancellation of any orders of custom made GOODS. For standard GOODS, PURCHASER, may, in its sole discretion, cancel all or any portion of this Order without any liability to SELLER provided such cancellation occurs at least sixty (60) days prior to the scheduled delivery date for such Goods.
4. TITLE AND RISK OF LOSS – Title to the Goods herein described shall not pass until said Goods have actually been received by PURCHASER or its customer, notwithstanding any agreement to the contrary, including, but not by way of limitation, any agreement to pay freight, express or other transportation or insurance charges. Risk of loss or damage in transit prior to such actual receipt by PURCHASER or its customer shall be borne by SELLER.
5. SHIPPING INSTRUCTIONS; NOTICE OF SHIPMENT – No packaging, shipping or handling charges shall be charged to PURCHASER unless specified on the Order. If PURCHASER specifies a method of shipment or specific carrier, SELLER shall use such method of shipment or specific carrier. All Goods must be suitably packed and classified to assure the lowest transportation rates consistent with full protection against loss or damage in transit and to meet the carrier’s requirements. SELLER must provide written notice of shipment by email to PURCHASER on day of shipment.
6. DELIVERIES – Time is of the essence in SELLER’s performance of the Order. Delivery must be affected within the time stated on the Order or otherwise agreed upon in writing. Any Goods delivered thereafter may be rejected or returned at SELLER’s risk and expense unless PURCHASER has authorized such late shipment in writing for each instance. SELLER shall promptly notify PURCHASER of any actual or anticipated delay in delivery and shall take all reasonable steps to avoid or end such delay without additional cost to PURCHASER. Deliveries shall be made to the location specified by PURCHASER.
7. PAYMENT AND PRICE – Payment by PURCHASER for Goods supplied hereunder shall not constitute acceptance thereof if subsequent inspection discloses defective material or workmanship or a failure to meet the specifications or instructions of PURCHASER or a breach of SELLER’s warranties (express or implied). PURCHASER shall not be billed at prices higher than stated on the Order unless authorized by a change notice issued and signed by PURCHASER. Unless different payment terms are specified in the Order, invoices will be paid within sixty (60) days of the date of the invoice or the date of receipt and inspection of Goods, whichever is later. PURCHASER may withhold or set off from any payment any amount as to which a dispute exists under any Order or against any amount due PURCHASER or any affiliate of PURCHASER under any transaction with SELLER.
8. REJECTION AND CANCELLATION – PURCHASER reserves the right to reject any Goods and to cancel all or any part of this Order if SELLER fails to deliver all or any part of the Goods in accordance with the terms, conditions, instructions and specifications contained herein or supplied by PURCHASER. Acceptance of any part of the Goods covered by this Order shall not obligate PURCHASER to accept future shipments nor deprive it of the right to revoke any acceptance previously given. Any amounts due SELLER shall be subject to setoff of PURCHASER’s additional costs of completing this Order and other damages incurred by PURCHASER as a result of SELLER’s default.
9. WAIVERS – PURCHASER’s waiver of any default, breach or failure to enforce any of the terms, conditions, instructions or specifications related to this Order shall not in any way affect, limit or waive PURCHASER’s right thereafter to enforce and compel strict compliance with every term, condition, instruction and specification hereof or any subsequent default or breach.
10. WARRANTIES – SELLER makes the following warranties for the Goods to the PURCHASER, its successors, assigns, customers and the users of the Goods, and all such warranties shall be in addition to any and all other warranties, express or implied, which may be prescribed by law or in equity: (a) SELLER shall, at the date of delivery, have full, good and marketable title to the Goods; (b) the Goods shall be free and clear of any and all liens, restrictions and encumbrances; (c) the Goods shall be new, fit and sufficient for their intended uses, and conform to specifications, drawings, and other descriptions supplied by PURCHASER and shall be free from defects in materials and workmanship; (d) the Goods will be free from defects in design; and (e) SELLER has complied with all quality standards and procedures furnished by PURCHASER or generally applicable in the industry and all applicable laws, regulations, standards, ordinances and orders in performing the Order. Such warranties, including warranties prescribed by law, shall run for a period of two (2) years after delivery unless otherwise stated.
SELLER warrants that all services which are part of the Goods will be performed in a professional manner and consistent with the highest standards in the industry for similar services.
In the event of breach of the warranty, PURCHASER, at its option, may: (i) cancel the Order as to such Goods, in which case SELLER will refund to PURCHASER all amounts paid for such Goods within ten (10) days of PURCHASER’s cancellation; (ii) require SELLER to promptly replace such Goods with conforming Goods without additional charge to PURCHASER; (iii) repair or replace the Goods in which case SELLER shall reimburse PURCHASER for all costs related to such repair or replacement. If specified by PURCHASER, Goods shall be removed after notification of rejection. SELLER shall bear all risk of loss of rejected Goods.
11. INDEMNIFICATION – SELLER shall indemnify, defend and hold PURCHASER, its successors, assigns, customers, affiliates, employees, agents, and users (collectively, the “Indemnified Parties”), harmless from and against any and all claims, liabilities, losses, fines, penalties, damages and expenses (including reasonable attorneys’ fees and court costs) which the Indemnified Parties may sustain or incur as a result of any claim of damage, loss, injury or death to any person or entity or property of any person or entity relating to or resulting from (i) the Goods; (ii) claimed infringement of any patent, trademark, trade secret, copyright, or other proprietary right of any other party arising out of the use, sale, importation, distribution, reproduction or licensing of the Goods (“Indemnified IP”); or (iii) any other act or omission of SELLER or its subcontractors related to the Order, including any agents or employees engaged in the manufacture, installation, delivery, erection, repair, or operation of any Goods.
12. TAXES – Except as may be otherwise specified in this Order, the prices specified in this Order include all federal, state, local or foreign taxes, levies, duties or other government charges upon the manufacture, sale, or transportation of the Goods described herein.
13. COMPLIANCE WITH LAWS AND GOVERNMENTAL REQUIREMENTS – SELLER shall comply with all applicable state, federal, and local, national and provincial laws, rules and regulations, the U.S. Occupational Safety and Health Act of 1970 (OSHA) and the FARs related to hazardous materials and waste. If Goods are considered toxic or hazardous as defined in the above regulations, SELLER shall provide a copy of the Safety Data Sheet (SDS) with each shipment or as otherwise specified on the Order.
14. ASSIGNMENT – SELLER shall not assign or delegate this Order or the contract formed as a result of accepting this Order in whole or in part without the prior written consent of PURCHASER. PURCHASER reserves the right to assign this Order. This Order will bind and inure to the benefit of the parties hereto and their respective successors, permitted transferees, and permitted assigns.
15. GOVERNMENT CONTRACTS, ADDITIONAL TERMS – If this Order bears a U.S. Government contract number or if SELLER is otherwise informed that the Goods or services covered by this Order are to be supplied directly or indirectly to the U.S. Government, any terms and conditions which may be required to be agreed to by SELLER as a condition to supplying Goods or services pursuant to such U.S. Government contract are hereby incorporated by reference. In the event of any inconsistency between the required terms of such U.S. Government contract and the terms of this Order, the required terms of such U.S. Government contract shall apply.
16. RIGHT OF ACCESS – SELLER shall permit any authorized representative of PURCHASER or PURCHASER’s customer to inspect any or all of the work included in this Order at SELLER’s facility upon reasonable advance notice.
17. HAZARDOUS MATERIALS – SELLER shall provide written notice to PURCHASER upon receipt of an Order if the products or services furnished in connection therewith are subject to the laws or regulations relating to hazardous or toxic substances, or when disposed of, to regulations governing hazardous wastes, or to any other environmental or safety and health regulations. SELLER shall furnish all appropriate shipping certifications and any notices, forms or other information required to be supplied to a purchaser or user of hazardous or toxic substances pursuant to applicable laws or regulations, and instructions for shipping, safety, handling, exposure and disposal in a form sufficiently clear for use by PURCHASER’s nontechnical personnel and sufficiently specific to identify all action which the user must take concerning the material. The following certification must be made on the bill of lading: “This is to certify that the above named articles are properly classified, described, packaged, marked and labeled and are in proper condition for transportation according to any applicable transportation regulations.”
18. LIMITATION OF LIABILITY – IN NO EVENT WILL PURCHASER BE LIABLE TO SELLER FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES REGARDLESS OF THE LEGAL THEORY ON WHICH ANY LIABILITY CLAIM IS MADE. In no event will PURCHASER’S liability to SELLER exceed the amount due under the applicable Order for the Goods.
19. TERMINATION – PURCHASER may terminate this Order immediately by written notice to SELLER without liability or further obligation hereunder if SELLER breaches any provision, term or condition of the Order (or PURCHASER reasonably anticipates such breach) and SELLER shall be liable for all damages, losses and liability that PURCHASER incurs directly or indirectly resulting from SELLER’s breach, including, without limitation, attorney’s fees.
20. MISCELLANEOUS – SELLER is an independent contractor and not PURCHASER’S employee, agent, partner or joint venturer. PURCHASER’S remedies herein are cumulative and in addition to any other or further remedies available to it at law or equity. In the event any provision of an Order is found to be invalid or unenforceable, the parties hereby agree that the court shall enforce such provision to the extent permitted by law and, to the extent such provision is not enforceable, shall enforce the remainder of an Order as if such provision were not included in the Order. All Orders will be interpreted and enforced under the laws of the Commonwealth of Pennsylvania, without regard to its conflicts of law provisions. The state and federal courts in Allegheny County, Pennsylvania will have exclusive jurisdiction to resolve any dispute related to this Order unless PURCHASER, in its sole discretion, brings a claim against SELLER in another court of competent jurisdiction. SELLER consents to the jurisdiction of such courts and agrees to appear in any such action upon written notice thereof. In no event will the provisions of the U.N. Convention on the International Sale of Goods apply to this Order.