11/10/06
ROCHESTER
MIDLAND CORPORATION
PURCHASE
ORDER
1.
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.