ChromaScape LLC - Standard Purchase Order Terms and Conditions

  1. Acceptance. Acceptance of this purchase order is limited exclusively to these Terms and Conditions. Any modification of this Purchase Order must be in writing and signed by ChromaScape, LLC (“Purchaser”). Any additional or contrary terms and conditions contained in any quotation, sales order, invoice, or other request or communication by you (“Seller”) not specifically accepted in writing by Purchaser are hereby rejected. Seller will be deemed to have accepted these Terms and Conditions if it ships any goods (collectively, “Goods”) or performs any services (collectively, “Services”) under this purchase order.
  2. Purchase price. The purchase price(s) specified in the Purchase Order (“Purchase Price”) shall not be subject to change without the prior written approval of Purchaser. If no purchase price is specified herein, it is agreed that the Purchase Price will be the lowest purchase price for like goods of like quality charged by Supplier from the date hereof until the date of delivery and in no event will the Purchase Price be higher than last previously quoted or charged to Purchaser.
  3. Quality, Quantity, Deliveries, and Packing. In the event no quality is specified on the face hereof, the Goods and/or Services must be of the best quality. The quantity of Goods indicated on the face hereof must not be exceeded by more than 5% without written approval of Purchaser. From time to time, Purchaser may not be able to count material when received. Upon count, Purchaser may adjust invoice for any over or under shipment. Time is of the essence for the fulfillment of this purchase order. Seller shall ship and deliver Goods and render Services on the date or dates specified on the face hereof unless prior approval of any change in such date or dates is given by Purchaser. No charge will be paid by Purchaser for packing, boxing, or cartage, unless specified on the face hereof. Seller shall be liable for any delays, loss, or damage in transit.
  4. Title and Risk of Loss. Title and risk of loss passes to Purchaser upon delivery of Goods at the delivery point specified on the face hereof (the “Delivery Point”).
  5. Compliance with law. Supplier represents and warrants that in its performance hereunder it will comply with all applicable federal, state, local and foreign laws, rules, regulations, administrative and executive orders, and pertinent governmental procurement regulations. Without limiting the foregoing, award of this purchase order is subject to Seller's compliance, whenever applicable, with Sec. 201 (1) through (7) inclusive of Executive order no. 11246 as amended, the provisions and regulations of the Occupational Safety and Health Act, and Sec. 503 of the Rehabilitation Act of 1973, and applicable regulations including 20 CFR Section 741.3, inclusive, with Affirmative Action for Handicapped Workers, 41 CFR Sec 60-741.4 with Affirmative Action of Disabled Veterans and Veterans of the Viet Nam Era 41 CFR Sec. 60-250.4, as same may be amended from time to time, and all of which are hereby incorporated by reference as though fully set-forth herein.
  6. Inspection. Notwithstanding prior payment and/or inspection by Purchaser, all shipments of Goods and/or all Services shall be subject to inspection by and approval of Purchaser after arrival of such Goods at the Delivery Point and/or after such Services have been rendered.
  7. Warranty. By accepting this order Seller hereby warrants that the Goods and Services will be in full conformity with Purchaser's specifications, drawings and data, or Seller's samples, and that Goods furnished will be merchantable and fit for the use intended by Purchaser. Seller agrees that this warranty shall survive acceptance of the Goods or Services. Said warranties shall be in addition to any warranties of additional scope given to Purchaser by Seller. Seller shall be liable for incidental and consequential damages arising from any breach of warranty.
  8. Rejected Shipments and Purchaser's Remedies. If the Goods shipped or to be shipped and/or Services rendered or to be rendered are rejected, in whole or in part, by Purchaser by reason of Seller's failure to comply with any of the terms, conditions and/or specifications contained herein, Purchaser, after so notifying Seller, may either return the rejected portion of such Goods and/or the rejected portion of such Services to Seller at Seller's expense or hold the same for such disposal as Seller shall indicate, without invalidating the remainder of this purchase order; or Purchaser may reject the entire shipment of such Goods and/or reject the entire Services and cancel this purchase order for any undelivered balances of Goods and/or unrendered Services. If Goods shipped or to be shipped and/or Services rendered or to be rendered are rejected, as hereinabove provided, Purchaser may purchase like goods elsewhere and/or obtain like services elsewhere and charge Seller with any loss or damage (either direct or indirect) sustained by Purchaser (including, but not by way of limitation, any difference between the price paid by Purchaser for such like goods and/or services and the price specified on the face hereof) plus all costs of collecting the same (including, but not by way of limitation, attorneys fees and court costs). Purchaser shall not be obligated to pay for any Goods shipped and/or Services rendered which are rejected by it.
  9. Return, Rework and Scrapping. Any Goods delivered by Seller to Purchaser, or finished product that contains Goods delivered by Seller to Purchaser, that do not conform to the specification or are not in compliance with any representation, warranty, covenant or other obligations set forth in this purchase order or any related agreement may, upon mutual agreement by both parties, but within Five (5) business days after Purchaser’s notice to Seller or at Purchaser’s option any time thereafter, be (1) returned to Seller by Purchaser at Seller’s expense including freight costs for credit to Purchaser for full price plus any expenses associated with such return or (2) scrapped by Purchaser at Seller’s expense in which case Purchaser will be relieved of any payment obligation with respect to such Goods or (3) reworked by Purchaser at Seller’s expense. When Purchaser scraps or reworks any finished product, Seller will be responsible for the full cost of the finished product and any costs associated with scrapping or reworking.
  10. Intellectual Property. Seller warrants that the Goods do not infringe any United States or foreign patent, trademark, trade secret or copyright; that it will defend any suit that may arise in respect thereto; and that it will defend, indemnify and hold Purchaser, its affiliates, and their respective equity holders, officers, directors, employees, agents, representatives, and independent contractors (each a “Purchaser Party”) harmless from and against any and all loss which a Purchaser Party may incur (including, but not by way of limitation, attorneys' fees and court costs) by reason of the assertion of any rights with respect to the Goods whether by reason of Purchaser's purchase, use, or otherwise.
  11. Responsibility and Indemnification. If a claim is made against a Purchaser Party that Goods are defective in any respect, and bodily injury, property damage or economic loss is alleged to have resulted, Seller agrees to indemnify, hold harmless and defend each Purchaser Party from any and all claims, expenses, costs (including attorneys' fees), settlements, costs and judgments arising out of or due to such bodily injury, property damage or economic loss, as are caused or result from such claim, except where such bodily injury, property damage or economic loss is due to the sole negligence of Purchaser. All work to be performed by Seller hereunder shall be performed entirely at the risk of Seller, and Seller shall defend, indemnify, and hold harmless each Purchaser Party from and against any and all loss (including, without limitation, loss of use), liability, damage, claims, demands, actions, and/or proceedings and all costs and expenses connected with any thereof (including, without limitation, attorneys fees) of whatsoever nature on account of any and all damage to or loss or destruction of any property (including, without limitation, property of a Purchaser Party), or injury to or death of any person (including, without limitation, employees of a Purchaser Party) arising directly or indirectly out of or in connection with the performance of Seller of such work. Without limiting the generality of the foregoing, Seller agrees to indemnify and hold each Purchaser Party harmless from and against all claims and liens of any and all persons based upon the furnishing of labor and/or materials in connections with the Goods and/or Services.
  12. Insurance. Prior to performing any work upon property owned or controlled by Purchaser or by an affiliate, subsidiary, or parent company or corporation of Purchaser, Seller shall furnish to Purchaser certificates from insurance companies approved by Purchaser evidencing that Seller is covered by insurance of the following kinds in at least the following amounts for at least the period during which work hereunder shall be performed:
                  GENERAL LIABILITY: (including, without limitation, coverage of operations of sub-contractors,
                  liability for injury and damage following completion of work and contractual liability).
                            Bodily injury and Minimum of $1,000,000. Property Damage combined single limit.
                  TRUCK AND AUTOMOBILE:
                            Bodily injury and Minimum of $1,000,000. Property Damage combined single limit.
                  WORKERS' COMPENSATION: As required by law. 
                  Said insurance policies shall contain a provision or endorsement that no cancellation or material       
                  change in coverage shall be made without giving Purchaser thirty (30) days prior written notice   
                  thereof. Without limiting the generality of the foregoing, such insurance shall fully insure Seller
                  against all liability imposed by law and all liability assumed hereunder. Seller’s liability hereunder will
                  not be limited to the sum insured.
  1. Events Not within Control of Purchaser. If, by reason of fire, earthquake, flood, explosion, accident, difference with or inability to secure workers, lack of material, lack of facilities, act of God, epidemic, or of any public enemy, voluntary or involuntary compliance with any valid or invalid law, order, regulation, request, or recommendation of any government agency or authority, lack of transportation facilities, or other cause beyond the immediate and direct control of Purchaser or owing to impracticability whether or not of the kind or nature hereinbefore specified, Purchaser shall be delayed in whole or in part in taking any delivery or deliveries of Goods and/or accepting the rendering of Services as herein specified, then without obligation Purchaser may, by giving notice to Seller:
    1. Cancel this purchase order in whole or in part as to any undelivered portion of such Goods and/or unrendered portion of such Services; or
    2. Suspend in whole or in part, deliveries of Goods and/or the rendering of Services during the continuance of and to the extent of such cause.
  2. Meet or Release. If during the term of this Purchase Order or any related agreement, Purchaser can purchase goods of like quality to Goods from another supplier at a total delivered cost to any Purchaser’s facility that is lower than the total delivered cost of the Goods, Purchaser may notify Seller of such total delivered cost and Seller shall have the opportunity to price the Goods on such a basis as to result in the same total delivered cost to Purchaser within thirty (30) calendar days of such notice. If Seller timely fails to do so or cannot legally do so, Purchaser may (i) purchase the Goods from such other supplier, in which case the obligations, including but not limited to, any purchase and sale requirements and/or commitments, if any, of Purchaser and Seller hereunder shall be reduced accordingly; (ii) terminate this Purchase Order and any related agreement without any penalty or further obligation; or (iii) continue purchases under this Purchase Order and any related agreement.
  3. Most Favored Customer. If, during the term of this Purchase Order or any related agreement, Seller sells any materials which are the same as, or equivalent to or substantially similar to the Goods, at a total delivered cost to a third party lower than the total delivered cost to any Purchaser facility, then in effect, then Seller has an opportunity to price the Goods within thirty (30) calendar days so that it is the same or lower than the total delivered cost of such third party. If Seller timely fails to do so or cannot legally do so, Purchaser may (i) purchase the Goods from any other supplier in which case the obligations, including, but not limited to, any purchase and sale requirement and/or commitments, if any, of Purchaser and Seller hereunder shall be reduced accordingly; or (ii) terminate this Purchase Order and/or any related agreement, without any penalty, liability or further obligation. Within thirty (30) calendar days of the effective date of this Purchase Order or at any time Purchaser so requests, Seller shall certify in writing to such Purchaser that Seller is in compliance with this section and shall provide all information that such Purchaser reasonably requires in order to verify such compliance.
  4. Complete Agreement - Waiver. This purchase order constitutes the entire agreement between the parties hereto; all terms, conditions, and specifications are set forth on the face and back hereof or on attachments thereto; and there are no warranties, agreements, or understandings, either express or implied, affecting it, except as set forth on the face and back hereof or on attachments hereto. No failure of Purchaser to require Seller's strict performance of or authorization by Purchaser permitting Seller to deviate from any term, condition, or specification set forth in this agreement shall be construed as a waiver of Purchaser's right to require strict performance of the same or any other term, condition, or specification in the future. 
  5. Applicable Law; Attorneys' Fees; Assignment. This purchase order shall be construed and performed in accordance with the laws of the State of Ohio without giving effect to its choice of law provisions. Neither the Uniform Law on International Sale of Goods, Uniform Law on Formation of Contracts for International Sale of Goods nor the United Nations Convention on the International Sale of Goods of 1980 (and any amendments or successors thereto) shall apply to the purchase order or these Terms and Conditions. The Courts of Ohio, County of Summit, shall have jurisdiction over the parties in any action relating to the subject matter or interpretation of this purchase order. In the event that any party herein commences any legal or equitable action or proceeding including, without limitation, an action for declaratory relief or any other form of relief, in order to enforce, interpret, reform, rescind or in any other matter effect the provisions of this contract, the prevailing party shall be entitled to reasonable attorneys' fees which may be set by the court in the same action, or in separate action brought for that purpose, in addition to any other relief to which the party may be entitled. Additional attorneys' fees may be awarded the prevailing party for any appellate action which may be brought. The rights of Seller under this purchase order may not be assigned by Seller without the prior written consent of Purchaser
  6. Disclosure of Information. Any unpatented knowledge or information concerning Seller's products, methods or manufacturing processes which Seller may disclose to Buyer shall, unless otherwise specifically agreed in writing signed by the parties hereto, be deemed to have been disclosed as part of the consideration for this order, and Seller shall not assert any claim against Buyer as the result of Buyer's use thereof. All drawings, specifications, printing plates, tools, dies, jigs, fixtures, molds, production equipment, components, materials, resins, gauges, negatives, positives, photographs, color separations, proofs, or engravings which are loaned to Seller or purchased from Seller for rendering of production purposes remain the property of Purchaser, shall be considered strictly confidential, shall be for the exclusive use of Purchaser, and shall be preserved in good order, to be returned promptly upon completion of work or termination of order. Seller shall maintain insurance coverage at replacement value for such property. Seller shall not scrap or destroy such property without prior written permission from Purchaser and subsequent certified proof of such scrapping or destruction. From time to time Purchaser may require an inventory of such property and Purchaser may charge Seller for any inventory loss.
  7. Confidentiality. Seller will not at any time disclose to any unauthorized person, firm, or corporation any information acquired by Seller through this Purchase Order, including without limitation information concerning the business or technology of Purchaser such as its customer lists, price data, its purchasing volumes, its relations with its employees, its manner of operation, or its inventions, designs, plans or processes, these being trade secrets material to the successful conduct of Purchaser's business, nor will Seller take with it upon termination of this Purchase Order any drawings, blueprints, specifications, documents, or other papers, or any tools, dies formulae, or materials, except with the prior written consent of Purchaser.
  8. Employment. Seller agrees that during the course of providing Goods and/or Services for Purchaser and for a period of two (2) years thereafter, Seller will not directly or indirectly solicit for employment or hire an employee of Purchaser. Seller acknowledges and agrees that the hiring of Purchaser’s employee will damage Purchaser and that Purchaser shall have the right to seek injunctive relief as well as damages and attorney’s fees to enforce its rights under this paragraph.
  9. Termination for Convenience by Purchaser. Purchaser may, for any reason, terminate this Purchase Order and any related agreement upon 30 days prior written notice to Seller without penalty, liability or further obligation, except as otherwise provided in this section. Upon such notice, Seller shall take immediate steps to bring work to a close in a prompt and orderly manner and to agrees to use its best efforts to mitigate cost.
  10. Mistakes in Information. Seller represents and warrants that the information supplied to Purchaser under this purchase order or any related agreement, shall be free from any discrepancies, errors, or omissions. Review and prior approval of such information by Purchaser in no case shall relieve Seller of its indemnification obligations herein which shall remain absolute. Seller shall, at Seller’s expense, be liable and responsible for any remediation arising out of or relating to any such discrepancies, errors or omissions.
  11. Contractor Status. The Parties are and shall remain independent contractors with respect to each other and nothing in this purchase order or any related agreement shall be construed to place the parties in the relationship of partners, joint venturers, fiduciaries or agents. Neither shall the employees, workers, laborers, agents or subcontractors of Seller be deemed employees or agents of Purchaser.
  12. Severability. If any term or provision of these Terms and Conditions are invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms and Conditions or invalidate or render unenforceable such term or provision in any other jurisdiction.
  13. Specification Change: From time to time, Purchaser may revise, supplement, or otherwise amend the specifications. These revised specifications shall become effective thirty (30) calendar days after Seller’s receipt of such revision, supplement or amendment unless Seller provides Purchaser with written notification of objection, said notification of objection must be received by Purchaser more than fifteen (15) days prior to the effective day. If Seller provides objection, then both parties shall promptly and in good faith attempt to resolve the objection. If the objection cannot be resolved within thirty (30) calendar days, then Purchaser, in its sole discretion may (i) purchase the Goods from another source in which case the obligations including, but not limited to, any purchase requirements and/or commitments of Purchaser shall be reduced accordingly or (ii) terminate any this Purchase Order and any related agreement with Seller without penalty, liability or further obligation. Seller shall not make any change to any raw material, any package material, any feedstock, any portion or any components of any product, the production process, the production equipment, any documentation or information related in any way to Purchaser’s products or production or the production location(s) without Purchaser’s prior written consent. Purchaser, in its sole discretion, shall be entitled to reject any such change. Seller shall be liable for any costs or damages incurred by Purchaser as a result of any change made by Seller without obtaining Purchaser’s prior written consent, including, without limitation, costs and damages incurred as a result of any product recall.