Purchasing Terms and Conditions
1. OFFER CONDITIONED UPON ACCEPTANCE.THIS PURCHASE ORDER IS AN OFFER BY THE HARSCO INFRASTRUCTURE AMERICAS (A DIVISION OF HARSCO CORPORATION) (“BUYER”) TO PURCHASE FROM THE SELLER (“SELLER”) THOSE GOODS AND/OR SERVICES DESCRIBED ON THE FACE HEREOF. BUYER RESERVES THE RIGHT TO WITHDRAW THIS PURCHASE ORDER AT ANY TIME BEFORE ITS ACCEPTANCE BY SELLER.THIS OFFER IS MADE SUBJECT TO THE TERMS AND CONDITIONS SET FORTH ON THE FACE HEREOF AND ON THIS REVERSE SIDE AND NO ADDITIONAL OR DIFFERENT TERMS OFFERED BY SELLER (INCLUDING ANY SUCH TERMS CONTAINED IN ANY ACKNOWLEDGEMENT OR INVOICE ISSUED BY SELLER IN RESPONSE
HERETO) SHALL BECOME A PART OF THE AGREEMENT OF SALE BETWEEN SELLER AND BUYER UNLESS SUCH TERMS HAVE BEEN EXPRESSLY APPROVED IN WRITING BY AN AUTHORIZED AGENT OF BUYER. ACCEPTANCE OF THIS OFFER IS EXPRESSLY LIMITED TO THE TERMS HEREOF. If this purchase order has been issued by Buyer in response to an offer or quotation made by Seller, Buyer’s acceptance of Seller’s offer is expressly conditioned on Seller’s assent to the additional or different terms set forth herein. If these terms and conditions are not acceptable, Seller shall notify Buyer in writing at once.
2. CHANGES. Buyer reserves the right to change specifications, requirements or date of delivery. Differences in contract prices resulting from such changes shall be equitably adjusted between Buyer and Seller.
3. SHIPPING AND DELIVERY. Seller is responsible, at its expense, for damage free delivery of goods. Time is of the essence, and if delivery of items or rendering of services is not completed by the time promised, Buyer may, without liability and in addition to its other rights and remedies, (i) terminate this order as to items not yet shipped or services not yet rendered, (ii) purchase substitute items or services elsewhere and (iii) charge Seller with any damages incurred, whether special, direct, incidental or consequential. No C.O.D.’s will be accepted by Buyer.
4. INSPECTION. Materials or equipment purchased are subject to inspection and approval at Buyer’s destination. Buyer reserves the right to reject ad refuse acceptance of items which are not in accordance with applicable instructions, specifications, drawings, data or other descriptions furnished or specified by Buyer, or with Seller’s sample or Seller’s warranties (expressed or implied). Buyer may charge Seller for the cost of inspecting merchandise rejected. Items not accepted will be returned to Seller at Seller’s expense. Payment for any item delivered shall not constitute acceptance thereof.
5. PRICES AND INVOICES. Separate invoices for each order are required. All taxes are for the account of Seller unless specifically and separately stated on the font of the invoice and accepted by Buyer. No invoice will be rendered at a price higher than that stated on this purchase order unless authorized in writing by Buyer, No extra charges will be accepted against any purchase order without written approval of Buyer. Freight will be billed separately with shipping bill attached. Any due date or discount date will be calculated from the date the invoice is received herein. Buyer accepts no charges on any invoices with respect to liquidated damages or delinquent charges.
6. PACKING AND CARTAGE. No charge will be allowed for packing, boxing or cartage without the written approval of Buyer. Damage to any items not packed or labeled to ensure proper protection thereto will be charged to Seller documents and separate invoice for each shipment on this order must be mailed to buyer’s office issuing this order on the day shipment is made. Packing lists must accompany each shipment. EACH PACKAGE, INVOICE, BILL OF LADING AND SHIPPING NOTICE MUST BE MARKED PLAINLY WITH BUYER'S ORDER NUMBER.
7. WARRANTY. In addition to all warranties imposed by law, Seller expressly warrants that all goods delivered pursuant hereto will conform to the specifications, drawings, samples or other description furnished or specified by Buyer and will be fit for the purpose intended, merchantable, of good material and workmanship and free from defects, including, without limitation, defects in manufacture and design. Neither payment nor inspection by Buyer can constitute a waiver of any breach of warranty. Goods returned to Seller for breach of warranty will be credited to Buyer’s account.
8. COMPLIANCE WITH LAWS. Seller will at all times comply with all state and federal laws applicable to its performance, including, but not limited to, the Fair Labor Standards Act.
9. PATENTS. Seller shall defend at its own expense any suit, action or proceeding which Buyer, Buyer’s agents or he users of the Buyer’s products are made defendants for actual or alleged infringements of any U.S. or foreign patents resulting from the use or sale of the items purchased hereunder (except for infringement necessarily resulting from adherence by Seller to specifications or drawings other than those of Seller’s design or selection originally submitted to Seller by Buyer), and Seller shall pay and discharge any and all judgments or decrees which may by rendered in any suit, action proceeding against such defendant and otherwise indemnify and defend Buyer against any damages resulting to buyer in any manner arising from any suit, action or proceeding.
10 BUYER’S PROPERTY. Any of Buyer’s property delivered to Seller for Seller’s performance of this contract, including, without limitation, blueprints, patterns and tools, shall remain Buyer’s property and Seller is responsible to return it to Buyer in the same condition as received.
11. CONFIDENTIAL INFORMATION. This Purchase Order is a matter of confidential information, and Seller will strictly protect the confidentiality hereof. Information on this Purchase Order is furnished by Buyer on the understanding that it may and will be used only for the purpose of satisfying this order.
12. LIENS. Seller will place no liens against Buyer. In the event Seller obtains any mechanic’s or other lien, by operation of law or otherwise, Seller will execute an appropriate document waiving all liens against Buyer.
13. FORCE MAJEURE. Fires, accidents, labor disturbances, war conditions, governmental acts, laws or regulations, involuntary cessation of operation of any of Buyer’s plants for any reason, or other causes beyond the reasonable control of Buyer rendering Buyer unable to receive the items or services covered by this Purchase Order will permit Buyer a its option to cancel this order by notice to Seller without liability of Buyer to Seller for such cancellation.
14. NON-WAIVER. Any waiver or failure by Buyer to require strict compliance with any of the provisions hereof shall not operate as a waiver of Buyer’s right to insist upon strict compliance therewith thereafter.
15. TERMINATION. Buyer may at any time demand that Seller terminate work o this order. In such event, any claim arising out of such termination shall be settled exclusively by reimbursing Seller for documented costs actually and properly incurred by Seller for the purchase, assembly or manufacture of the goods (with due allowance for their salvage value after Buyer had has full opportunity to recommend disposition).
16. REMEDIES CUMULATIVE. All remedies provided Buyer herein are cumulative in addition to any other remedies of Buyer at law or in equity.
17. ASSIGNMENT. Buyer may, in its sole discretion, assign its benefits hereunder to any third party, and may delegate its responsibilities hereunder to any successor to all substantially all of its business. Seller may delegate its responsibilities hereunder only with the prior written consent of Buyer.
18. CHOICE OF LAW. This agreement shall be governed by the internal substantive laws of the State of New Jersey without reference to rules governing conflict of laws.
19. MODIFICATION. No waiver, alteration or modification of the terms of this Purchase Order shall be binding unless writing and signed by an authorized agent of Buyer.
20. INDEMNIFICATION SELLER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS BUYER FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, CAUSES OF ACTION, LIABILITIES AND EXPENSES (INCLUDING LEGAL FEES) FOR INJURY OR DAMAGE TO PERSONS, PROPERTY, OR BUSINESS ARISING FROM, RELATING TO, OR IN ANY WAY CONNECTED WITH A CLAIMED DEFECT IN THE DESIGN OR MANUFACTURE OF SELLER’S GOODS PROVIDED UNDER THIS PURCHASE ORDER.