All purchases of products by Floracraft Corporation (“Buyer”) from the entity stated in a Purchase Order (“Seller”) are made on the following terms and conditions (“Terms of Purchase”). In these Terms of Purchase, any products sold by Seller to Buyer are referred to below as “Goods”.
- Acceptance. Seller has read and understands this Purchase Order and agrees that Seller’s written acceptance, commencement of any work or service, or shipment of any Goods shall constitute Seller’s acceptance of these Terms of Purchase. All terms and conditions proposed by Seller that are different from or in addition to this order are unacceptable to Buyer, are expressly rejected by Buyer, and shall not become a part of any order. This Purchase Order may only be modified by a purchase order amendment/alteration issued by Buyer.
- Prices. All prices shall be stated on the purchase order between Seller and Buyer and are firm and not subject to escalation. Seller warrants that all prices set forth in the purchase order are at least as low as those currently being quoted by Seller to commercial or wholesale customers for the same Goods, in like quantities, under similar circumstances.
- Taxes and Charges. Seller shall pay all excise, sales, use, transfer, or other taxes, federal state and local, in connection with the sale or delivery of the Goods to Buyer. Buyer shall not be required to pay any late charge, interest, finance charge or similar charge. In addition, Seller’s price includes any and all privilege, occupation, personal property, value-added, sales, excise, use or other taxes, and Buyer shall not be liable for all such taxes, whether or not Seller invoices Buyer for them. Any such item paid by Buyer shall be reimbursed by Seller upon presentation of an invoice or written request. Buyer’s payment of purchase price does not indicate its acceptance of the Goods.
- Terms of Payment. Unless Buyer has agreed otherwise in writing, payment terms shall be net sixty (60) days from the later of the date Buyer receives Seller’s invoice or the date on which Buyer accepts the Goods. Time for payment shall not begin until correct and complete invoices are received, and Seller’s cash discount privileges to Buyer shall also be extended until correct and complete invoices are received.
- Shipping and Billing: Seller agrees: (a) to properly pack, mark and ship Goods in accordance with the requirements of the Buyer and involved carriers in a manner to secure lowest transportation cost; (b) to route shipments in accordance with Buyers instructions; (c) to make no charge for handling, packaging, storage, transportation or dryage of Goods unless otherwise stated in this Purchase Order; (d) to provide with each shipment packing slips with Buyer’s purchase order number marked thereon; (e) to promptly forward the original bill of lading or other shipping receipt for each shipment in accordance with Buyer’s instructions. Seller will include on bills of lading or other shipping receipts the correct classification identification of the Goods on the packing slips, bills of lading and invoices that shall be sufficient to enable Buyer to easily identify the Goods. Seller further agrees: (a) to promptly render, after delivery of Goods or performance of services, correct and complete invoices to Buyer; and (b) to accept payment by check or, at Buyer’s discretion, other cash equivalent (including electronic transfer of funds). Buyer may withhold payment pending receipt of evidence, in such form and detail as Buyer may direct, of the absence of any liens, encumbrances and claims on the Goods or services under this Purchase Order.
- Delivery. Deliveries shall be made both in the quantities and at the time specified in Buyer’s purchase order. Buyer shall not be required to make payment for Goods delivered to Buyer, which are in excess of quantities specified in Buyer’s Purchase Order. Buyer may change the date of scheduled shipments or direct temporary suspension of scheduled shipments. For orders of Goods where quantities and/or delivery schedules are not specified, Seller shall deliver Goods in such quantities and times as Buyer may direct in subsequent Purchase Order amendments/alterations.
- Expedited Deliveries. If Seller’s acts or omissions result in Seller’s failure to meet Buyer’s delivery requirements and Buyer requires a more expeditious method of transportation for the Goods than the transportation method originally specified by Buyer, Seller shall, at Buyer’s option (i) promptly reimburse Buyer the difference in cost between the more expeditious method and the original method, (ii) allow buyer to reduce its payment of Seller’s invoices by such difference, or (iii) ship the Goods as expeditiously as possible at Seller’s expense and invoice Buyer for the amount which Buyer would have paid for normal shipment.
- Title and Risk of Loss. Title to and risk of loss for Goods purchased which conform to the Purchase Order shall pass to Buyer upon receipt and acceptance at Buyer’s premises. Title to and risk of loss for nonconforming Goods and for all property provided to Buyer by Seller shall remain with Seller.
- Inspection and Rejection. Buyer may inspect all Goods at reasonable times before, during and after manufacture. All Goods shall be received subject to Buyer’s inspection, approval and acceptance at Buyer’s premises. Goods rejected by Buyer as not conforming to the Purchase Order may be returned to Seller at Seller’s risk and expense and shall not be replaced by Seller without Buyer’s written authorization.
- Warranties. In addition to any other express or implied warranties, Seller warrants that all Goods delivered hereunder will be merchantable, new, suitable for the uses intended, of the grade and quality specified, within the tolerances specified, free from all defects in design, material and workmanship, will conform to all samples, drawings, descriptions and specifications furnished, and will be free of liens and encumbrances. Seller further warrants that the Goods are not hazardous as that term is defined in the Consumer Product Safety Act (“CPSA”) and the Consumer Product Safety Improvement Act of 2008 (“CPSIA”) and the Federal Hazardous Substance Act, that it has complied with all testing procedures, regulations, and standards required for the Goods. These warranties shall survive any delivery, inspection, acceptance, payment or resale of the Goods and shall extend to Buyer and Buyer’s customers. These warranties shall be construed as conditions as well as warranties and shall not be deemed to exclude Seller’s standard warranties or other rights or warranties which Buyer may have or obtain. At its expense and option, Seller shall replace any Goods not conforming to the foregoing warranties. If after notice Seller fails promptly to replace any such Goods, Seller shall promptly refund to Buyer the full purchase price paid by Buyer for all such Goods. Seller has and follows and will continue to have and follow, adequate quality and security procedures that will assure that the Goods will comply with the foregoing warranties. Buyer’s approval of a specification shall not relieve Seller of any of its warranties under this Section, including, without limitation, its warranties of merchantability, fitness and compliance with laws.
- Buyer’s Property. Any designs, drawings, specifications, methods of manufacture, intellectual property, documents and other information and any tooling, equipment or other property that Buyer furnishes to, or acquires from, Seller in connection with Seller’s manufacture of the Goods or performance of the services (“Buyer Property”) are and shall at all times be Buyer’s sole and exclusive property. Seller shall (1) maintain the Buyer Property in good condition, (2) mark the Buyer Property “PROPERTY OF FLORACRAFT CORPORATION,” (3) not commingle the Buyer Property with property of Seller or third parties, (4) allow Buyer to inspect and examine the Buyer Property at any time and (5) return the Buyer Property to Buyer upon its request.
- Intellectual Property. All inventions (whether or not patentable), devices, technologies, ideas, improvements, processes, systems, trademarks, trade names, trade dress, service marks, names, software and other works and matters that Seller creates or develops in the course of Seller’s performance of the services or Seller’s design or development of the Goods for Buyer, including all proprietary rights in the foregoing (“Intellectual Property”) shall be Buyer’s sole property, and Seller assigns, and agrees to assign, to Buyer all right, title and interest that Seller now has or in the future acquires in the Intellectual Property. All copyrightable works that Seller creates or develops in the course of Seller’s performance of the services or Seller’s design or development of the Goods for Buyer shall be considered “works made for hire” within the meaning of the federal Copyright Act of 1976, as amended, and under the equivalent laws of any other country. To the extent that any such copyrightable work is not considered a “work made for hire,” it shall be the sole property of Buyer, and Seller assigns, and agrees to assign, to Buyer all right, title and interest that Seller now has or in the future acquires in it and in all copyright rights in it. Seller shall sign and deliver to Buyer all assignments and other documents, and Seller shall take all other actions, that Buyer requests for the purpose of perfecting Buyer’s ownership of and title to the Intellectual Property and in any copyrightable work that is not considered a “work made for hire” and in all copyright rights in it. If the Goods or their design are subject to any pre-existing patent rights or other proprietary rights that Seller holds, then Seller grants to Buyer an irrevocable, non-exclusive, royalty-free license of the patent rights and other proprietary rights to the extent necessary to enable Buyer to modify, repair or rebuild any or all of the Goods. This license is in addition to all licenses impliedly granted to Buyer as a purchaser of the Goods. Seller shall not use Buyer’s name or any trademark, trade name, service mark or trade dress that Buyer owns or that is licensed to Buyer or to any affiliate of Buyer, without Buyer’s express, written consent, and Seller shall not sell to anyone other than Buyer any goods bearing any such trademark, trade name, service mark or trade dress.
- Confidentiality and Non-Use. Seller shall not sell or offer to sell or otherwise provide to anyone other than Buyer any goods made in accordance with any drawings, designs or specifications that Buyer furnishes to Seller or that incorporate, embody or are made in accordance with any of Buyer’s intellectual property. Seller shall maintain the confidentiality of, and shall not disclose or use or permit to be disclosed or used or to be viewed by any third party (including any of Seller’s suppliers), the Goods, any designs of or specifications for the Goods, any Buyer Property or any information concerning Buyer’s business, operations or activities, including, without limitation, information concerning Buyer’s present or proposed products, product developments, plans, strategies, finances, know-how, sales, customers and marketing or sales techniques (“Confidential Information”), except that Seller may disclose Confidential Information to a third party (other than a competitor of Buyer or a subsidiary or affiliate of a competitor) to the extent disclosure is necessary in order for Seller to perform its obligations under the purchase order. If Seller breaches or threatens to breach this Section or Section 11, then Buyer’s remedies at law will be inadequate. Therefore Buyer shall have the right of specific performance or injunctive relief, or both, in addition to any and all other remedies and rights at law or in equity, and Buyer’s rights and remedies shall be cumulative.
- Changes. Buyer may, at any time and from time to time, by notice to Seller, make changes in [specifications, designs, drawings,] method of packing or shipments, quantity ordered, destinations and delivery schedules and Seller shall immediately comply therewith. If any such change causes a material increase or decrease in Seller’s cost or the time for performance, an equitable adjustment may be made to the price or delivery schedule, or both.
- Compliance with Laws. (a) Seller shall comply with all applicable governmental laws, ordinances, codes, rules, regulations, programs, plans and orders in the performance of the Purchase Order. At Buyer’s request, Seller shall provide appropriate certificates of compliance. (b) Seller shall obtain all permits or licenses required in connection with the manufacture, sale, and shipment of the Goods specified in the Purchase Order. (c) If in connection with the products to be delivered under this Purchase Order, Seller is required to comply with Occupational Safety and Health Act’s hazardous communications standard (48 Fed. Reg.53280(1983)), Seller agrees to provide Buyer with copies of the applicable Material Safety Data Sheets at the time of delivery to Buyer’s premises of the Goods ordered hereunder which require such compliance, and any updates of such sheets required to be delivered by Seller to Buyer under such laws and regulations and/or upon request.
- Certification and Testing Documentation. Seller must certify based on a test of the Goods or upon a reasonable testing program that all Goods Buyer purchases complies with all rules, bans, standards, or regulations applicable to that product under the CPSA and CPSIA, any other Act enforced by the Consumer Product Safety Commission (CPSC), and all U.S. FDA Codes of Federal Regulations (CFR). Upon request by Buyer, Seller must supply to Buyer all certification and testing documentation, including but not limited to a General Certificate of Conformity if required under the CPSA or CPSIA, for Buyer within five (5) business days.
- Cancellation. Buyer may, by notice to Seller, cancel the whole or any portion of a Purchase Order in the event of (i) proceedings, voluntary or involuntary, in bankruptcy or insolvency, by or against Seller, (ii) the appointment, with or without Seller’s consent, of any trustee or receiver for any substantial portion of Seller’s assets, (iii) any assignment for the benefit of Seller’s creditors or (iv) Seller’s breach of any provision contained herein, or in the Purchase Order. In the event of any such cancellation, Buyer may procure, upon such terms and in such manner as Buyer may deem appropriate, products comparable to the Goods covered by the Purchase Order so terminated, and Seller shall be liable to Buyer for any excess cost of such comparable products. In the event of any such cancellation, Buyer may require Seller to deliver to Buyer in the manner and to the extent directed by Buyer, any completed or partially completed Goods, and such delivery shall be credited against any prepayment by Buyer properly allocable to such Goods. Seller shall continue performance of this Purchase Order to the extent not canceled. Except to the extent specifically set forth herein, Buyer shall have no obligation or liability to Seller in respect of the canceled portion of a Purchase Order. Buyer’s rights set forth in this Section shall be in addition to Buyer’s other rights in the event of Seller’s default. In the event of any such cancellation all deposits or prepayments shall be deemed to have been held in trust for Buyer’s benefit and shall be returned to Buyer promptly upon request.
- Assignment. Seller shall not delegate or subcontract any duties or assign any rights or claims under the Purchase Order without Buyer’s prior written consent, and any such attempted delegation, subcontract or assignment shall be void.
- Governing Law. Each Purchase Order, and the rights and obligations of the parties hereunder and thereunder, shall be governed by and interpreted, construed and enforced in accordance with the laws of the State of Michigan, United States of America, and the courts sitting in Mason County, Michigan, or the U.S. District Court for the Western District of Michigan shall have exclusive jurisdiction and venue over any dispute arising hereunder.
- Chinese Corporation Governing Law; Language; Arbitration. Not withstanding any other provisions of this Purchase Order or Terms of Purchase, this section shall apply to Sellers organized under the laws of the People’s Republic of China (which shall include Hong Kong). This Purchase Order and Terms of Purchase between Seller and Buyer shall be considered to have been made in the State of Michigan, and it shall be governed by and interpreted according to Michigan law without regard to choice of law rules, excluding the United Nations Convention on Contracts for the International Sale of Goods. In case these Terms of Purchase are translated to other languages, this English version will control the interpretation of the terms hereof. Any controversy or claim arising out of or relating to these Terms of Purchase, or a breach thereof, shall be determined by arbitration administered by the American Arbitration Association in accordance with its International Arbitration Rules. The number of arbitrators shall be one. The place of arbitration shall be in Chicago, Illinois. The arbitration proceedings shall be conducted in English. The parties agree that the arbitration award shall be final and binding and that a judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- Authorization. Seller represents and warrants that it has been duly authorized to perform each Purchase Order, and the person signing on the Seller’s behalf has the power and authority to do so. Seller also represents and warrants that it is not restricted or prohibited by any government agency from engaging in business or transactions with United States entities.
- Indemnification. Seller shall indemnify and hold Buyer harmless against any and all claims, losses (including all recalls of Seller’s Goods), liabilities, damages, costs or expenses, including attorneys’ fees and court costs, and shall defend all actions and proceedings at its sole expense, resulting from the breach or alleged breach of any representation, warranty or agreement made by Seller including, without limitation, Seller’s obligations to deliver Goods pursuant to a Purchase Order and Seller’s representations, warranties and agreements contained in any quotation or other document.
- Force Majeure. In the event of a force majeure occurrence that would prevent Seller from performing their obligations under the Purchase Order Seller shall notify Buyer within ten (10) days of the force majeure event of the particulars of the event. Following notification or failure to perform due to a force majeure occurrence, Buyer, at its option, may purchase the Goods from other sources in quantities and at times requested by Buyer. If requested by Buyer, Seller shall provide, within ten (10) days of the request, adequate assurances that the delay caused by the force majeure occurrence will not exceed thirty (30) days. If the delay lasts more than thirty (30) days or Seller does not provide adequate assurances that the delay will cease within thirty (30) days, Buyer may immediately cancel the Purchase Order without liability. A force majeure occurrence includes, but is not limited to, acts of God, fires, floods, windstorms, explosions, riots, natural disasters, wars, sabotage, labor issues (including strikes, lockouts and slowdowns), or a court injunction or order.
- Set-off. Any amount owed to Seller by Buyer shall be subject to deduction for any set-off counterclaim or indemnification right arising out of the Purchase Order to Seller from Buyer.
- Severability. In the event that any one or more provisions contained in the Purchase Order or these Terms of Purchase shall be held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. The remedies contained herein are cumulative and in addition to any other remedies at law or equity. Buyer’s waiver of a breach of, or failure to enforce, any provision of the Purchase Order or these Terms of Purchase shall not constitute a waiver of any other breach or of such provision.
- Entire Agreement. Each Purchase Order and these Terms of Purchase is the complete and exclusive statement of the contract between Buyer and Seller with respect to Buyer’s purchase of the Goods. In case of a conflict between these Terms of Purchase and those terms on the face of the Purchase Order, these Terms of Purchase shall control.
- Additional or Inconsistent Terms. Any term or condition set forth in any document or agreement provided to Buyer by Seller which is in any way different from, inconsistent with or in addition to the terms and conditions set forth herein or in the Purchase Order will not become a part of the Purchase Order or be binding upon Buyer. If Seller objects to any term or condition set forth herein, this objection must be in writing and received by Buyer at the address stated on the Purchase Order prior to Seller’s delivery. Buyer’s failure to object to terms contained in any communication from Seller will not be a waiver of the terms set forth herein. Seller shall not condition any delivery upon the abrogation or modification of any of the terms and conditions included herein or in any Purchase Order.
Printed Purchase Order
Include the following at the face of Floracraft’s purchase order if terms are to be attached:
FLORACRAFT CORPORATION OFFERS TO PURCHASE THE GOODS OR SERVICES DESCRIBED ABOVE ON THE TERMS ABOVE AND ON ITS STANDARD TERMS OF PURCHASE, WHICH ARE ATTACHED. WE REJECT ANY PRIOR OFFERS TO SELL MADE BY SELLER. WE OBJECT TO ANY DIFFERENT OR ADDITIONAL TERMS BY THE SELLER IN ACKNOWLEDGING OR ACCEPTING THIS ORDER.
If terms are to be placed on the internet, include the following on the face of the purchase order:
FLORACRAFT CORPORATION OFFERS TO PURCHASE THE GOODS OR SERVICES DESCRIBED ABOVE ON THE TERMS SET FORTH ABOVE AND ON ITS STANDARD TERMS OF PURCHASE, A COPY OF WHICH MAY BE OBTAINED BY WRITING TO US AT [ADDRESS], OR BY VISTING OUR WEBSITE AT [WEBSITE]. WE REJECT ANY PRIOR OFFERS TO SELL MADE BY SELLER. WE OBJECT TO ANY DIFFERENT OR ADDITIONAL TERMS BY THE SELLER IN ACKNOWLEDGING OR ACCEPTING THIS ORDER.