ALL HAPPY DISTRO PURCHASE ORDERS ARE SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS:
1. ACCEPTANCE AND GOVERNING PROVISIONS. This order is an offer to buy the goods or services described in this order subject to the conditions set forth herein. Except as otherwise agreed to in writing by Buyer, provision of the goods or services constitutes Seller’s acceptance of this order and these terms. Upon Seller’s acceptance, this order constitutes the entire agreement between the parties (except for any additional warranties given by Seller or a manufacturer), superseding all previous communications and negotiations. Buyer agrees to purchase the goods or services described in this order only upon Seller’s complete acceptance of all of the terms and conditions of this order, without modification or additions. The agreement or sale resulting from the acceptance of this order shall be construed and interpreted in accordance with the internal laws of the State of Arizona. Notwithstanding the foregoing provisions, if the parties have executed a separate written and expressly signed agreement(s) governing the purchase, sale, or use of the goods and/or services and performance thereof, then the terms of such separate agreement(s) shall prevail over any inconsistent terms herein.
2. DELIVERY SCHEDULES: PRICES. Seller shall deliver the goods or services, in the quantities and within the time, which is of the essence, and at the prices specified in this order. Failure of Seller to comply with such requirements shall entitle Buyer to cancel this order without liability for any undelivered portion, in addition to Buyer’s other rights and remedies. Seller shall not anticipate delivery by purchasing materials or manufacturing quantities in excess of what is reasonably required to meet Buyer’s delivery schedule. Items received in advance of Buyer’s delivery schedule may, at Buyer’s option, be returned at Seller’s expense or be accepted and payment withheld until the scheduled delivery date. If no delivery schedule is specified in this order, Seller shall provide and deliver items in accordance with such delivery schedules as may be requested by Buyer from time to time. The prices specified in this order apply to all goods and services provided under this order, unless price changes shall have been agreed upon in writing between the parties.
3. RISK OF LOSS. Unless otherwise agreed in writing by Buyer, the risk that ordered goods may be lost, stolen, damaged or delayed in transit shall be borne by Seller until actual receipt of them by Buyer in accordance with the terms of this order.
4. INVOICES AND TERMS OF PAYMENT. Buyer’s Purchase Order Number(s), appearing in this order must be shown on all packing lists, containers, invoices and correspondence relating to the order. The invoice shall be mailed to Buyer’s address specified in this order within 30 days after the goods or services requested are received by the Buyer, unless other billing arrangements are specified by Buyer. Invoices must itemize taxes, transportation and other charges separately, if applicable.
5. TRANSPORTATION, LABELING, PACKAGING AND PACKING. All goods shall be suitably packed, with each container marked with Buyer’s Purchase Order Number, Buyer’s part number as specified in the order, quantity of enclosed item(s) and destination, and shipped in accordance with shipping instructions specified herein or otherwise in accordance with the requirements of common carriers so as to obtain the lowest transportation cost. Buyer shall have the right to route all shipments. Where multiple packages comprise a single shipment, each package shall be numbered. Packing slips must accompany each order and indicate Seller name, Buyer’s Purchase Order Number, Buyer’s part number(s) as specified in the order, item description, quantity of each item by part number, container count included in shipment, and quantity of each item by part number included in each container. Containers holding packing slips in multiple package shipments must be so marked. No charge shall be made to Buyer for packing, packaging, boxing, labeling, cartage or dunnage unless separately itemized in this order. Seller shall be responsible for any loss or damage resulting from Seller’s failure to provide adequate protection during shipment. Additional expenses, charges or claims incurred as a result of deviation from the specified route, noncompliance with other shipping instructions or improper description of the shipment in shipping documents shall be Seller’s responsibility.
6. WARRANTY. In addition to its standard warranty and/or service guaranty, Seller warrants that it has good and merchantable title to all goods supplied hereunder and that such goods shall (a) be free and clear of all liens and encumbrances, (b) be free from any defects in design, material or workmanship and of good and merchantable quality, (c) conform to Buyer’s specifications or the sample approved by Buyer as the case may be, or be fit for the known purposes for which purchased hereunder, and (d) have been produced, processed and delivered in conformity with all applicable federal, state or other laws, administrative regulations and orders. The foregoing warranties shall survive inspection, delivery and payment and shall inure to the benefit of Buyer, its employees, successors and assigns. Seller shall defend, hold harmless and indemnify Buyer, its successors and assigns, from and against any and all damages, liabilities and claims for which Buyer is liable to a third party claimant as a result of Buyer’s use of the goods in accordance with the terms of this order and for Buyer’s costs and expenses (including attorney’s fees and other costs of defending any claim) incurred as a result of any such third-party claim, except to the extent caused by the negligence or willful misconduct of Buyer, its successors or assigns.
7. INSPECTION. All goods purchased hereunder shall be subject to inspection and testing by Buyer at any reasonable time and from time to time before, during or after manufacture or delivery. Notwithstanding any payment that may be made, no goods are to be deemed accepted until Buyer has had a reasonable opportunity to inspect them.
8. INFRINGEMENT INDEMNIFICATION. Except for goods ordered in accordance with Buyer’s design, Seller warrants that the sale or use of goods furnished hereunder will not infringe any patent, copyright, trademark or other intellectual property right of a third party (“intellectual property rights”). Seller shall indemnify and defend Buyer, its successors and assigns from and against any third party claim alleging that Buyer’s purchase or use of the goods in accordance with the terms of this order infringes any intellectual property rights, and for all losses, damages and expenses (including attorney’s fees and other costs of defending any infringement action) incurred by Buyer as a result of such third-party claims.
9. GOVERNMENT LAWS AND REGULATIONS. Seller hereby certifies that all goods furnished hereunder shall have been produced in compliance with all applicable requirements of Sections 6, 7 and 12 of the Fair Labor Standards Act of 1938, as amended, and of regulations and orders of the Administrator of the Wage and Hour Division issued under Section 14 thereof, and in accordance with all applicable state and federal laws and regulations governing conditions for labor employed in the production of such goods. Seller shall indemnify Buyer against all damages assessed against Buyer for failure of the goods to so comply with any Act or standards and regulations issued thereunder. Buyer shall have the right to return or destroy any goods failed to accordance to any law and regulations at Seller’s cost.
10. SUBCONTRACTS. Unless otherwise specified in the order, Seller shall not assign or subcontract the work to be done hereunder without the prior written consent of the Buyer, but this provision shall not restrict Seller in the procurement of component parts or materials. To the extent that Seller procures any parts or materials to be furnished hereunder, Seller shall be responsible for compliance of such parts or materials with the provisions of this order.
11. TAXES. Buyer shall not be liable for any federal, state or local taxes, duties, customs, or assessments in connection with the sale, purchase, transaction, use or possession of the goods ordered hereunder, except as expressly specified in this order.
12. INSURANCE. If this order requires work to be performed on Buyer’s premises, Seller agrees that, in performing such work, Seller is an independent contractor and further agrees to indemnify Buyer against all loss or damages caused by Seller, its employees or agents in connection with such work required by this order. Seller further agrees to perform the work in accordance with Buyer’s safety rules and to maintain Worker’s Compensation, Employer’s Liability Insurance, Comprehensive Public and Contractual Liability, Bodily Injury and Property Damage insurance with limits reasonably acceptable to Buyer. Seller agrees to furnish to Buyer evidence of such insurance within a reasonable time after requested by Buyer but prior to commencing any work at Buyer’s premises.
13. CHANGES. Buyer may make changes in drawings, specifications, quantities, delivery schedules, or methods of shipment or packaging on any item at any time. If such changes result in an increase or decrease in costs, an equitable adjustment of price and delivery schedules may be made or Buyer may, at its option, terminate this order if agreement on an equitable adjustment cannot be reached. Claims for equitable adjustment must be asserted by Seller within ten (10) days of the change order. This order, together with any change orders or instructions, shall constitute one contract.
14. CANCELLATION BY BUYER. Except as otherwise specified in this order, Buyer shall have the right to cancel this order at any time without cause and Buyer’s liability for such cancellation shall be limited, as applicable, to the goods delivered prior to cancellation or to Seller’s actual cost for work and materials applicable solely to this order as of the date upon which Buyer’s notice of cancellation is received by Seller.
15. DRAWINGS, SPECIFICATIONS AND TECHNICAL INFORMATION. Drawings, specifications, photographs and other engineering and manufacturing information supplied by Buyer shall remain Buyer’s property and shall be returned to Buyer upon completion of this order or otherwise upon demand by Buyer.
16. WAIVER REMEDIES. The failure of either party at any time to require performance by the other party to any provision hereof shall in no way affect the full right to require such performance at any time thereafter. A waiver by either party of a breach of any provision shall not constitute a waiver of any succeeding breach of the same or any other provision nor constitute a waiver of the provision itself. In case of total or partial default by Seller, Buyer may procure the article or service from other sources and charge Seller with any excess cost and other damages occasioned thereby. The remedies herein reserved shall be cumulative and in addition to any other remedies provided at law or in equity.
17. CONFIDENTIALITY. Confidential Information means any information not publicly available concerning Buyer, its business, employees, customers, security, credit, finances, premises, technology, equipment, assets or this order that is disclosed to or obtained by Seller in connection with this order. Seller shall protect the confidentiality of Confidential Information using reasonable commercial efforts and shall not use or disclose Confidential Information to any person or entity, except as reasonably required in connection with Seller’s obligations under this order, or as required by applicable law or court order, or as consented to in writing by Buyer