M Cubed Technologies
Purchase Order
Terms and Conditions
The Purchase Order constitutes an offer which can be accepted by Seller only under its exact Terms and Conditions by (i) signing and returning the acknowledgement copy; (ii) commencing work on any products or services ordered; (iii) shipping any of the products or providing any of the services ordered; or (iv) by Seller’s acknowledgement (by its acknowledgement form or otherwise) to Buyer. No provisions of Seller’s acknowledgement which conflict with or are additional to the Terms and Conditions of this Purchase Order shall apply. When accepted, this Purchase Order shall be the sole and entire contract.
Seller’s prices shall not be (i) higher than the prices stated on the Purchase Order; and (ii) shall be lower if Seller’s prices for products or services of like grade and quality are lower than the Purchase Order prices. Seller’s prices, where no prices are stated, shall be (i) Seller’s lowest prices for products or services of like grade and quality, or (ii) the fair market prices of products or services whichever are lower. In all events, Buyer shall receive the benefit of all price reductions by Seller. Buyer shall not be liable for any extra charges including but not limited to charges for drayage, freight, packing, storage, taxes, tooling, or tool maintenance unless specifically agreed to in writing.
Unless otherwise agreed to in writing, the obligation of the Buyer is limited to the specific quantities set forth in the Purchase Order. Seller warrants that all markings of weight or measurement shall be true and correct.
Specifications describe the products or services to be furnished including, but not limited to descriptions of the dimensions, finish, functional characteristics, general quality, material, manufacturing methods, quality control procedures and tolerances of the products or services covered by this Purchase Order. Specifications are furnished in various forms including but not limited to blueprints, catalogs, designs, drawings, engineering instructions, quality control procedures and written specifications. If any specification or instruction, in whatever form, supplied by the Buyer appears to be in conflict with another specification or instruction or is insufficient or unclear, it shall be the duty of Seller to request clarification from Buyer. Buyer shall be the final judge of whether the product or services are nonconforming under the specifications and under this Purchase Order.
Time is of the essence of this Purchase Order. Products shall be delivered and services provided in accordance with shipping and delivery instruction provided by Buyer. Unless otherwise specified all products shall be tendered in a single delivery. Seller shall immediately notify Buyer whenever Seller has reason to believe that any scheduled delivery will be late.
Seller shall employ adequate quality control procedures and comply with the quality control procedures provided by Buyer. Buyer shall have the right to inspect and test all products and services and reject or revoke acceptance of nonconforming products and services either before shipment, upon delivery, or at any time after delivery. Buyer’s right of inspection and revocation of acceptance shall survive the acceptance of and the payment for the products or services and shall survive any resale by Buyer. Seller shall be responsible for all rework charges relating to defective material including defective material shipped to Buyer’s customers.
Invoices and shipping documents shall be mailed postage prepaid to the address shown on the face of the Purchase Order. The Purchase Order number, part number and quantity must appear on all shipping documents, invoices and correspondence. All products delivered after the 25th of the month shall be billed as the first of the following month. The payment date and discount period will be calculated from the date the invoice is received by Buyer or the goods are received by Buyer, whichever is later; provided however, that the payment date and discount shall be calculated from the scheduled date of delivery if the deliveries and invoicing are made ahead of schedule. Progress payments for construction work are subject to a 10% retention until final acceptance of the construction work by Buyer. No payments for construction work shall be made or due without releases of mechanic’s lien from all contractors, subcontractors and materialmen.
Buyer shall have the right to return at Seller’s expense any part or all of the nonconforming products. Buyer shall have the right to return at the expense of Seller any part or all of the conforming products if quantities tendered or delivered are different than the quantities specified on the Purchase Order of the products are not tendered or delivered as scheduled.
The risk of loss for conforming goods shall be on Seller until the products are delivered to the destination specified in the Purchase Order regardless of whether Buyer or Seller is paying for the freight provided, however, that Buyer shall assume the risk of loss for products while being transported on Buyer’s vehicles. The risk of loss for nonconforming products shall be on Seller at all times.
All tooling (including but not limited to dies fixtures, gages, patterns and tools), all written materials (including but not limited to blueprints, drawings and specifications) or other tangible items furnished by Buyer or paid for by Buyer either as a separate item or as part of the unit price shall be and remain the property of Buyer and will be delivered to Buyer at its request in good condition, ordinary wear and tear expected. Seller shall be responsible for tool maintenance and shall not use Buyer’s tooling, material or documents to make products for anyone else. Risk of loss shall be Seller’s. To protect Buyer’s interest, Seller authorizes Buyer to sign and file a UCC-1 Financing Statement covering the foregoing described property of Buyer.
Buyer may at any time make changes in the drawing, specifications or approved samples of any product or services covered by this Purchase Order. If such changes result in an increase or decrease in the marginal cost of Seller, then an equitable adjustment shall be made in the price or prices and this Purchase Order shall be modified accordingly. Buyer may at any time extend delivery dates due to Force Majeure (as defined in section 12) or for reasonable periods of time in the absence of Force Majeure without incurring any additional costs or expenses.
Buyer may cancel this Purchase Order for cause, in whole or in part, without any obligation or liability on the part of Buyer. Cause includes, without limitation, (i) Seller’s breach of any provisions of this Purchase Order including, without limitation, the failure to deliver on time, delivery of nonconforming products or services or the breach by Seller of any warranties; (ii) Seller’s insolvency or bankruptcy; or (iii) any cause or condition beyond Buyer’s control including, without limitation, acts of God, the public enemy, accidents, explosions, fires, other casualties, war, riots, embargoes, epidemics, shortages, unusually severe weather, governmental action, transportation difficulties, strikes, lockouts, other labor difficulties, the inability to obtain necessary materials and the failure of Buyer’s suppliers to deliver or perform ("Force Majeure").
Buyer may terminate this Purchase Order in whole or in part without cause. In the case of special order product and services made and provided primarily in accordance with the specification of Buyer, Buyer shall be liable only for marginal or variable costs and expenses (excluding, without limitation, any liability for fixed or period costs, selling, general or administrative expenses, interest or profits) incurred by Seller prior to the date of termination, less full credit for direct materials or tooling reusable by Seller, and less the full scrap or salvage value for materials or tooling which cannot be reused by Seller. In the case of all other products or services (including but not limited to those products or services where Buyer’s specifications are secondary or incidental), then Buyer shall be liable for the Purchase Order price only for the products shipped or services provided prior to date of termination.
Notwithstanding any breach of this Purchase Order by Buyer, it is expressly agreed that Seller’s remedy and the liability of Buyer (whether for special order products and services or all other products and services) as set forth in Section 13 represents the exclusive and sole remedy of Seller under this Purchase Order.
This Purchase Order is intended by the parties hereto as the final expression of their agreement and it is the complete and exclusive statement of the terms and conditions thereof. No modification or rescission of this Purchase Order by Buyer or any waiver of rights under this Purchase Order by Buyer shall be binding upon Buyer unless it is in writing and signed by Buyer.
Seller represents and warrants that Seller has special skills and that Buyer is relying on the skills and judgment of Seller to select and furnish suitable products or services. All written or oral statements of Seller as to functions, quality, suitability and use of the products or services are warranties of Seller. Seller represents and warrants that all products (including packaging) and services (including construction work) provided under this Purchase Order shall: (i) fully and strictly conform to the specifications; (ii) be free of defects; (iii) be of good material and workmanship; and (iv) are merchantable and fit for the general and particular purposes for which they are required. If any products or services are nonconforming, Seller shall, if Buyer requests, promptly and without charge, repair or replace the products or provide replacement services. Seller shall be liable for all direct, incidental and consequential damages resulting from nonconforming products or services, or breach of any other warranties or provisions of this Purchase Order.
Seller represents and warrants that the products or services provided under this Purchase Order do not infringe, or contribute to or induce infringement, of any Unites States or foreign letters patent, trademarks, or copyrights and do not breach any employment agreements, restrictive covenants, or contracts or infringe any other intangible rights.
In connection with the performance of work under this Purchase Order, the Equal Opportunity clause as set forth in §202 of Executive Order 11246, as amended, §503 of the Rehabilitation Act of 1973, as amended, and §402 of the Vietnam Era Veterans Readjustment Act of 1974, as amended, are incorporated by reference.
Seller represents and warrants that all products or services to be provided under this Purchase Order shall strictly comply with all federal, state, local and, where applicable, foreign laws including but not limited to the Fair Labor Standards Act of 1938, the Federal Hazardous Substances Act, the Consumer Products Safety Act, the Occupational Safety and Health Act of 1970, the Civil Rights Acts, Executive Orders 11246 and 11375, all environmental protection laws, the Motor Vehicle Safety Act, the Toxic Substances Control Act and the Americans with Disabilities Act of 1990 (all of the foregoing including the amendments thereto are the "laws") and all rules, regulations and ordinances issued pursuant to the laws.
Seller shall grant access to Buyer for the purpose of copying during business hours all records of Seller relating to the products or services to be provided under this Purchase Order.
Seller shall not disclose or use except to the extent required to fulfill this Purchase Order any confidential matters or trade secrets of Buyer.
This Purchase Order may not be assigned in whole or in part by Seller without the express written consent of Buyer. Seller shall not issue any press releases or originate any publicity in any form regarding this Purchase Order without the prior written consent of Buyer.
This Purchase Order, including the provisions relating to the providing of services, shall be governed by the Uniform Commercial Code of the State of Connecticut and such other laws of the State of Connecticut that may be applicable to this Purchase Order.
Errors or omissions, including but not limited to stenographic and clerical errors, are subject to correction at any time.
All rights and remedies of Buyer set forth in this Purchase Order shall be in addition to and not in lieu of any rights or remedies provided by law and all rights and remedies of whatever nature shall be cumulative and the past waiver of or failure to enforce any right or remedy shall not constitute the waiver of that or any other right or remedy.
Buyer and its affiliates shall have the right to set-off any amounts owed to any of them by Seller against any amounts owed to Seller by any of them.
Seller, its agents, representatives, contractors and employees waive any and all claims against Buyer for injuries, death or property damage arising out of or related to providing the products or services (including "Construction Work" as defined below) under this Purchase Order. Seller shall indemnify, defend, protect and hold harmless Buyer from any and all actions, claims, costs, expenses, fees (including reasonable attorney fees as set forth in Section 28 below), investigations, liabilities, losses or suits arising out of or related to the products or services (including Construction Work as defined below) provided under this Purchase Order including but not limed to those which (i) involve any actual or alleged injuries, death or property damage resulting in whole or in part from defective or allegedly defective products or services provided hereunder; (ii) involve any actual or alleged infringement of any United States or foreign letters of patent, trademarks, copyrights, or other intangible rights by reason of the use or sale of any products or services provided hereunder; (iii) involve actual or alleged violations of any law, regulation, rule or ordinance relating to the use or sale of any products or services provided hereunder; (iv) involve any claims of Seller, its agents, representatives, contractors and employees relating to any actual or alleged injuries, death or property damage sustained in providing the products or services provided hereunder; or (v) involve any actual or alleged injuries, death or property damage resulting in whole or in part from the negligence of Seller, its agents, representatives, contractors and employees, the negligence of third parties or the negligence of Buyer excluding injuries, death and property damage resulting solely from the negligence of Buyer.
"Construction Work" means the construction, alteration, repair or maintenance of any building, structure or appurtenances thereto, including any moving, demolition and excavating connected therewith.
Seller agrees to obtain and maintain policies of insurance including but not limited to policies providing public liability, product liability with a broad form vendor’s endorsement naming Buyer, automobile liability and worker’s compensation coverage in such amounts, with such companies and containing such other provisions which shall be satisfactory to Buyer relating to the products or services covered by this Purchase Order. Seller shall provide Buyer with certificates of insurance and all such policies and certificates shall provide that the coverage provided by such policies shall not be terminated or cancelled without at least ten (10) days prior written notice to Buyer.
Seller agrees to pay all costs, expenses and fees including but not limited to reasonable attorneys fees rendered in defending the underlying claim subject to indemnity under Section 26 above and/or incurred by Buyer in establishing the right to indemnification, subrogation or contribution. Further, if Buyer prevails in any litigation involving this Purchase Order, Seller agrees to pay all costs of Buyer in connection with such litigation including without limitation, reasonable attorney’s fees plus interest at the rate of 1½% per month, or the highest rate allowed by law, whichever is lower, on all amounts due or payable by Seller to Buyer from the date Buyer notifies Seller that Seller has breached this Purchase Order or the date such amounts become due or payable to Buyer, whichever is first.
REVISED DECEMBER 1993