11/10/06

 

 

 

ROCHESTER MIDLAND CORPORATION

 

PURCHASE ORDER

 

 

 

1.       Sale and Purchase.   Subject to the terms and conditions hereof, Vendor agrees to furnish to Rochester Midland Corporation ("RMC") the goods and/or services ("Goods") described on the face of this Order.

 

2.       Acceptance; Applicable Terms and Conditions.   Acceptance by Vendor of this Order shall be made by duly executing and returning a signed copy of this Order, commencement of work on the Goods subject to this Order or shipment of such Goods, whichever occurs first.  Any acceptance of this Order is limited to acceptance of the express terms contained on the face and back hereof.  Any proposal for additional or different terms or any attempt by Vendor to vary in any degree any of the terms of this offer in Vendor's acceptance is hereby objected to and rejected, but such proposals shall not operate as a rejection of this offer unless such variances are in the terms of the description, quantity, price, or delivery schedule of the Goods, but shall be deemed a material alteration thereof, and this offer shall be deemed accepted by Vendor without said additional or different terms.  If this Order shall be deemed an acceptance of a prior offer by Vendor, such acceptance is limited to the express terms contained on the face and on the back hereof.  Additional or different terms or any attempt by Vendor to vary in any degree any of the terms of this Order shall be deemed material and are objected to and rejected, but this Order shall not operate as a rejection of Vendor's offer unless it contains variances in the terms of the description, quantity, price, or delivery schedule of the Goods.

 

3.       Prices.   If prices are not set forth on this Order, the prices shall be no higher than last quoted or charged to RMC for comparable quantities, unless notified in writing prior to processing.  All prices, unless otherwise specifically provided, include all applicable federal, state, and local taxes in effect, packaging, shipping, labeling, custom duties, storage, and insurance, and Vendor warrants that the prices are complete and no additional charges of any type shall be added without RMC's prior express written consent.  In the event that there are any new taxes or increased rates or repeal of any tax or reduction of taxes, prices shall be adjusted accordingly.  If prices are not set forth on this Order and previous orders have not been submitted to Vendor, Vendor shall immediately notify RMC of the prices to be charged.  No contract shall be made until such prices are accepted in writing by RMC.

 

4.       Progress Reports; In-Production Inspections.   If this Order provides for progress reports, Vendor shall provide reports as agreed to in the contract/purchase order, during the performance of this Order which shall include in each instance a detailed statement of the work commenced, in-process, and completed at the end of the reporting period, and a statement of the estimated time remaining for the completion of the Order.  In addition, RMC shall have the right to make such examinations and tests as it shall deem necessary to determine whether or not the Goods are being produced in a good and workmanlike manner and in accordance with specifications.

 

5.       Partial Shipments and Substitutions.   Unless otherwise agreed, shipments must equal the exact amounts ordered, and no partial shipments, changes, or substitutions in specifications may be made without the prior written consent or request of RMC.

 

6.       Deliveries.   RMC production schedules are based upon the agreement that the Goods will be delivered to RMC on or before the date specified in the Order.  Time is, therefore, of the essence, and in the event that deliveries are not made at the time agreed  upon, RMC reserves the right to cancel, purchase elsewhere, and hold Vendor liable.  Acceptance by RMC of late shipments or partial shipments shall not constitute a waiver of this provision.  If no date for delivery is specified, Vendor shall at the time of acceptance state the date upon which shipment shall be made.  If, in order to comply with RMC's required delivery date, it becomes necessary for Vendor to ship by a more expensive way than specified in this Order, any increased transportation costs resulting therefrom shall be paid for by Vendor.

 

7.       Invoicing and Shipping Memoranda.   On the date of shipment, Vendor shall forward a shipping memo (in full) with bill of lading or express receipt to the Buyer of record as per the Purchase Order, and for each separate shipment shall forward invoices in duplicate showing this Order number.

 

8.       Payment Terms.  Payment terms are net 45 (unless otherwise agreed to and designated on the Purchase Order) beginning the date of receipt of invoice at RMC’s Accounts Receivable Department.

 

9.       Changes in Deliveries and Quantities Ordered.   RMC reserves the right to change shipping schedules and defer shipment of any or all of the Goods ordered, or to cancel the whole or any part of the Order in the event that fire, flood, embargo, strike, change in its production schedules, or any other circumstance beyond RMC's control shall interfere with or adversely affect RMC's receipt, handling, stocking, or need for the Goods.

 

10.     Termination for Convenience.   RMC reserves the right to terminate the whole or any part of this Order at any time for any reason of its own convenience by giving written notice to Vendor.  In the event of termination for the convenience of RMC, RMC agrees to pay a termination fee only with respect to those Goods which, because they have been specially manufactured for RMC, cannot be returned to Vendor's stock.  Such termination fee shall be equal to the price payable for Goods already delivered to and accepted by RMC, together with the costs attributable to work-in-process, including costs of raw materials, labor, and reasonable overhead and profit, but in no event exceeding the price specified in this Order.

 

11.     Inspection and Rejection.   Payment for the Goods delivered hereunder shall not constitute acceptance thereof.  RMC shall have the right to inspect such Goods and to reject any or all of said Goods which are in RMC's judgment defective or nonconforming.  Goods rejected may be returned to Vendor at its expense and, in addition to RMC's other rights, RMC may charge Vendor all expenses of unpacking, examining, repacking, and reshipping such Goods.  In the event RMC receives Goods whose defects or nonconformity is not apparent on examination, RMC reserves the right to require replacement, as well as payment of damages.  Nothing contained in this Order shall relieve in any way Vendor from the obligation of testing, inspection, and quality control.  Failure by RMC to inspect, however, shall not be considered a waiver of RMC's rights with respect to nonconformity or otherwise.

 

12.     Packaging.   All Goods shall be properly packaged without charge to RMC, except where specifically agreed to by RMC.  Containers, pallets, and other packaging materials will not be returned unless specifically requested by Vendor.  All costs and expenses for handling and returning packaging materials shall be charged to Vendor.

 

13.     Risk of Loss.   Notwithstanding the method of shipment, Vendor shall deliver all Goods to RMC at RMC's place of business or such other location specified by RMC at Vendor's own risk.  Vendor shall bear the risk of loss, destruction, or damage until the Goods are so delivered.

 

14.     Warranty.   Vendor expressly warrants that all Goods furnished under this Order shall strictly conform to all specifications and appropriate standards, will be new, and will be free from defects in material and workmanship.  Vendor warrants that all such Goods will conform to any statements made on the containers or labels or advertisements for such Goods, and that any Goods will be adequately contained, packaged, marked, and labeled.  Vendor warrants that all Goods furnished hereunder will be merchantable, and will be safe and appropriate for the purpose for which Goods of that kind are normally used.  If Vendor knows or has reason to know the particular purpose for which RMC intends to use the Goods, Vendor warrants that such Goods will be fit for such particular purpose.  Vendor warrants that Goods furnished will conform in all respects to samples.  Inspection, test, acceptance, or use of the Goods furnished hereunder shall not affect Vendor's obligation under this warranty, and such warranties shall survive inspection, test, acceptance, and use.  Vendor's warranty shall run to RMC, its successors, assigns, and customers, and users of products sold by RMC.  Vendor agrees to replace or correct defects of any Goods not conforming to the foregoing warranty promptly, without expense to RMC, when notified of such nonconformity by RMC, provided RMC elects to provide Vendor with the opportunity to do so.  In the event of failure of Vendor to correct defects in or replace nonconforming Goods promptly, RMC, after reasonable notice to Vendor, may make such corrections or replace such Goods and charge Vendor for the cost incurred by RMC in doing so.

 

15.     Indemnification.   Vendor shall defend, indemnify, and hold harmless RMC against all loss, (including, without limitation, loss of use), damages, claims, liabilities, demands, actions, fines, penalties, proceedings, and all costs and expenses (including attorneys' fees) arising out of or resulting in any way from any defect in the Goods purchased hereunder (including, without limitation, based upon the doctrines of strict liability, product liability, tort, or negligence), any breach, or failure by Vendor to comply with this Order, or from any act or omission of Vendor, its agents, employees, or subcontractors.  This indemnification shall be in addition to the warranty obligations of Vendor.  Vendor further agrees to indemnify and protect RMC against all liabilities, claims, or demands growing out of or arising out of the performance of labor, including, but not limited to, any claims for Workers' Compensation.

 

16.     Infringement.   Vendor agrees upon receipt of notification to promptly assume full responsibility for defense of any suit or proceeding which may be brought against RMC, or its agents or customers, for alleged patent infringement, as well as for any alleged unfair competition resulting from similarity in design, trademark, or appearance of Goods, or services furnished hereunder, and Vendor further agrees to indemnify RMC, and its agents, distributors, and customers, against any and all expenses, losses, royalties, profits, and damages including court costs and attorneys' fees resulting from any such suit or proceeding, including any settlement.  RMC may be represented by and actively participate through is own counsel in any such suit or proceeding if it so desires, and the costs of such representation shall be paid by Vendor.  In the event that Vendor is determined by a court of law or equity to have committed such an infringement, Vendor shall be obliged to supply RMC with non-infringing substitute Goods, or to alter supplied Goods as to make them non-infringing, or Vendor will be deemed to have breached its contract with RMC, incurring liability for damages, including the full amount of consequential and incidental damages allowed by law.  The foregoing shall not apply to any infringement resulting from Vendor's use of a patented invention required to comply with written specifications of RMC if such patent invention is not normally used or sold by Vendor.

 

17.     Proprietary Information; Confidentiality.   Vendor shall consider all information furnished by RMC (including, without limitation, models, drawings, sketches, or plans) to be confidential and shall not disclose any such information to any other person, or use such information itself for any purpose other than performing this contract, unless Vendor obtains written permission from RMC to do so.  This paragraph shall apply to drawings, specifications, or other documents prepared by Vendor for RMC in connection with this Order.  Unless otherwise agreed in writing, no commercial, financial, or technical information disclosed in any manner or at any time by Vendor to RMC shall be deemed secret or confidential, and Vendor shall have no rights against RMC with respect thereto except such rights as may exist under patent laws.

 

18.     Default.   If Vendor repudiates or breaches any of the terms of this Order, or RMC rightfully rejects the Goods or justifiably revokes acceptance thereof, then with respect to any of the Goods involved, and with respect to the whole if the breach goes to the whole Order, RMC may cancel the Order and, whether or not it has done so, RMC may, in addition to recovering so much of the price as has been paid, "cover" and have damages as to all of the Goods affected whether or not they have been identified to the Order.  RMC may "cover" by making, in good faith and without unreasonable delay, any reasonable purchase of or agreement to purchase the Goods in substitution for those due from Vendor.  RMC shall recover from Vendor as damages the difference between the cost of "cover" and the contract price together with any incidental or consequential damages.  The foregoing shall be in addition to any other rights available to RMC under the Uniform Commercial Code.

 

19.     On-Site Services.   If this Purchase Order includes services to be performed on RMC’s premises, then:  (a) RMC’s Safety & Health Instructions for Contractors is to be considered a part of this order, and, (b) Vendor must provide a Certificate of Insurance with proof of at least $1,000,000 of automobile, $1,000,000 of general liability and $500,000/$500,000/$500,000 of worker’s compensation coverage. 

 

20.     Bankruptcy of Vendor.   If Vendor shall become insolvent or unable to meet its obligations as they become due, or if a voluntary or involuntary petition of bankruptcy is filed by or against Vendor, or if an assignment for the benefit of the Vendor's creditors or a receiver is appointed, with or without Vendor's consent, or RMC deems itself insecure, at any time prior to the completion of Vendor's terms and conditions to be performed under this Order, the Order shall be deemed breached by Vendor, and RMC shall have the right to terminate this Order by serving written notice of termination.  Such termination shall not affect any claim for damages available to RMC, nor shall RMC incur any liability to Vendor for pursuing its rights under this paragraph.  RMC reserves the right to obtain all materials on Vendor’s premises which are owned by RMC.  These materials while on site at Vendor are to be identified as RMC materials and segregated from other Vendor materials.

 

21.     Changes.   RMC shall have the right at any time to make changes in drawings, designs, specifications, materials, packaging, time and place of delivery, and method of transportation.  If any such changes cause an increase or decrease in the cost, or the time required for the performance, an equitable adjustment shall be made and this Order shall be modified in writing accordingly.  Vendor agrees to accept any such changes subject to this paragraph.

 

22.     Limitation on RMC's Liability.   IN NO EVENT SHALL RMC BE LIABLE FOR ANTICIPATED PROFITS OR FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES.  RMC'S LIABILITY ON ANY CLAIM OF ANY KIND FOR ANY LOSS OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH OR RESULTING FROM THIS ORDER OR FROM THE PERFORMANCE OR BREACH THEREOF SHALL IN NO CASE EXCEED THE PRICE ALLOCABLE TO THE GOODS OR UNIT THEREOF, WHICH GIVES RISE TO THE CLAIM.  RMC SHALL NOT BE LIABLE FOR PENALTIES OF ANY DESCRIPTION.  ANY ACTION RESULTING FROM ANY BREACH ON THE PART OF RMC AS TO THE GOODS DELIVERED HEREUNDER MUST BE COMMENCED WITHIN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.

 

23.     Assignments and Subcontracting.   No part of this Order may be assigned or subcontracted by Vendor without the prior written approval of RMC.

 

24.     Set-Off.   All claims for money due or to become due from RMC shall be subject to deduction or set-off by RMC by reason of any counterclaim arising out of this or any other transaction with Vendor.

 

25.     Waiver.   RMC's failure to insist on performance of any of the terms or conditions herein or to exercise any right or privilege or RMC's waiver of any breach hereunder shall not thereafter waiver any other terms, conditions, or privileges, whether of the same or similar type.

 

26.     Government Subcontracts.   If this Order is a non-exempt government subcontract Executive Order 11246, the Equal Opportunity Clause as defined in Rules and Regulations of the Department of Labor, Office of Federal Contract Compliance (41 CFR Part 60-1) and other applicable rules and regulations are hereby incorporated by reference.

 

27.     Country of Origin.  If the materials purchased hereunder are materials of foreign origin, Vendor will cause all such materials and their containers to be marked with the country of origin, as required by United States law, and will indicate the country of origin on all invoices for the products.  Upon RMC’s request, Vendor will promptly provide certification to evidence the origin of such materials purchased hereunder.

 

28.     Fair Labor Standards.   Vendor certifies that the Goods were produced in compliance with all applicable requirements of Sections 6, 7, and 12 of the Fair Labor Standards Act, as amended, and of Regulations and Orders of the United States Department of Labor issued under Section 14 thereof. Rochester Midland Corporation is an Equal Opportunity Employer.

 

29.     Invalidity.   If any of the provisions or portions hereof are invalid under any applicable statute or rule of law, they are to that extent to be deemed omitted, and the remainder shall continue in full force and effect.

 

30.     Survival of Certain Terms.   Any provisions contained herein which by their nature would continue beyond the termination, cancellation, or expiration of this Order will survive such termination, cancellation, or expiration.

 

31.     Governing Law and Jurisdiction.   This Order shall be governed by and construed under the laws of the State of New York without reference to provisions of conflict of laws.  The federal and state courts of the County of Monroe, State of New York, shall have exclusive jurisdiction to adjudicate any dispute arising out of this Order.  The parties hereto each consent to:  (a) the personal jurisdiction of the courts in the County of Monroe, State of New York, and (b) service of process being effected upon it by registered mail sent to the address set forth in this Order.

 

32.     Entire Order.   Vendor acknowledges that it has read this Order, understands it, and agrees to be bound by its terms, and further agrees that it is the complete and exclusive statement of the agreement between the parties, which supersedes and merges all prior proposals, understandings, and all other agreements, oral and written, between the parties relating to the subject matter of this Order.