TERMS AND CONDITIONS OF PURCHASE
Kurt J. Lesker Company® is referred to herein as "Purchaser", and the company, agency, person or entity to whom this purchase order is submitted is referred to herein as "Seller."
Acceptance of this purchase order (this "order") may occur in any reasonable manner, including without limitation Seller's issuance of an acknowledgment, commitment or contract to Purchaser, Seller's commencement of work on the goods subject to this order, or Seller's shipment of such goods, whichever occurs first. Any acceptance of this order by Seller is limited to acceptance of the express terms contained on the face and back hereof. Any proposal for additional or different terms in Seller's acknowledgment or other documents or any other attempt by Seller to vary in any degree any of the terms of this order is hereby objected to and rejected and this order shall be deemed accepted by Seller without said additional or different terms; provided, however, that if the proposal purports to change the terms of the description, quantity, price or delivery schedule of the goods, it will operate as a rejection of this order. If this order shall be deemed an acceptance of a prior offer by Seller, such acceptance is limited to the express terms contained on the face and on the back hereof. Any additional or different terms in Seller's offer or other documents or any other attempt by Seller to vary in any degree any of the terms of this order is hereby objected to and rejected and this order shall be deemed an acceptance by Purchaser of Seller's offer without said additional or different terms; provided, however, that if this order purports to change the terms of the description, quantity, price or delivery schedule of the goods contained in the Seller's offer, it will operate as a rejection of Seller's offer.
Purchaser shall have the right to terminate this order or any part hereof for cause in the event of any default by the Seller or if the Seller fails to comply with any of the terms and conditions of this order. Late deliveries, deliveries of products which are defective or which do not conform to this order, and failure to provide Purchaser, upon request, of reasonable assurances of future performance shall all be defaults allowing Purchaser to terminate this order for cause. Purchaser shall have no liability to Seller on account of, and Seller shall be liable to Purchaser for any and all damages sustained by reason of the default which gave rise to, the termination for cause. Also, Purchaser reserves the right to terminate this order or any part hereof, at any time, without cause. Upon receipt of any notice of termination, Seller shall immediately stop all work hereunder and cause all its suppliers or subcontractors to cease work. In the event of any termination, Seller shall be entitled to a percentage of the order price reflecting the percentage of the work performed prior to the notice of termination, plus, in the event of termination without cause, actual direct costs resulting from termination. In no event, shall Seller be entitled to payment for any work done after receipt of notice of termination.
Proprietary Information and Confidentiality.
All information and intellectual property furnished to Seller by Purchaser, including but not limited to this order and its contents, drawings, specifications, and/or software (herein collectively "Information"), regardless of the form or media in or by which it is furnished, constitutes the confidential and proprietary information of Purchaser. Seller agrees, for itself, its legal successors and its employees, not to disclose or transfer any Information to any employee not directly employed in the performance of the work under this order or to any third party. Seller agrees not to use any Information except in connection with its performance of this order.
Seller expressly warrants that all goods or services furnished under this agreement shall conform to all specifications and appropriate standards, will be new, and will be free from defects in material or workmanship. Seller warrants that all such goods or services will conform to any statements made on the containers or labels or advertisements for such goods or services, and that any goods will be adequately contained, packaged, marked, and labeled. Seller warrants that all goods or services furnished hereunder will be merchantable, and will be safe and appropriate for the purpose for which goods or services of that kind are normally used. If Seller knows or has reason to know the particular purpose for which Purchaser intends to use the goods or services, Seller warrants that such goods or services will be fit for such particular purpose. Seller warrants that goods or services furnished will conform in all respects to samples. Seller shall extend all warranties it receives from its vendors to Purchaser. Inspection, test, acceptance or use by Purchaser of the goods or services furnished hereunder shall not affect the Seller's obligation under this warranty, and such warranties shall survive any such inspection, test, acceptance and use. Seller's warranty shall run to Purchaser, its successors, assigns and customers, and users of products sold by Purchaser. Seller understands that goods subject to this order may be stocked by Purchaser as inventory and agrees that every warranty provided by Seller with respect to any such good will remain in effect until not less than one year after such good is sold by or placed in service by Purchaser. Seller agrees to replace or correct defects of any goods or services not conforming to the foregoing warranty promptly, without expense to Purchaser, when notified of such nonconformity by Purchaser, provided Purchaser elects to provide Seller with the opportunity to do so. In the event of failure of Seller to correct defects in or replace nonconforming goods or services promptly, Purchaser, after reasonable notice to Seller, may make such corrections or replace such goods and services and charge Seller for the cost incurred by Purchaser in doing so. The express warranties and remedies set forth in this paragraph are in addition to all other warranties, rights and remedies provided under applicable law.
Seller warrants that the prices for the articles sold to Purchaser hereunder are the lowest prices at which these or similar articles are sold by the Seller to other customers in similar quantities. In the event that Seller reduces its price for such article during the term of this order, Seller agrees to reduce the prices hereof correspondingly. Seller warrants that prices shown on this order shall be complete, and no additional charges of any type shall be added without Purchaser's express written consent. Such additional charges include, but are not limited to, shipping, packaging, labeling, custom duties, taxes, storage, insurance, boxing, crating.
Purchaser may delay delivery or acceptance occasioned by causes beyond its control. Seller shall hold such goods at the direction of the Purchaser and shall deliver them when the cause affecting the delay has been removed. Purchaser shall be responsible only for Seller's direct additional costs in holding the goods or delaying performance of this agreement at Purchaser's request. Causes beyond Purchaser's control shall include, but are not limited to, any act of God or the public enemy; compliance with any order, decree, law or request of any governmental authority; act of declared or undeclared war; public disorder; rebellion; civil unrest; sabotage; terrorism; fire; flood; explosion; accident; riot; strike; labor difficulty or other concerted act of workmen, whether direct or indirect; or declaration of national emergency.
Seller agrees upon receipt of notification from Purchaser to promptly assume full responsibility for the defense of any claim, suit or proceeding which may be brought against Purchaser or its agents, customers or other vendors for alleged patent infringement or alleged unfair competition, resulting from the sale or use of any goods or services furnished or supplied by Seller hereunder, and Seller further agrees to indemnify Purchaser and its agents, customers and other vendors against any and all expenses, losses, royalties, profits and damages, including court costs and attorneys' fees, resulting from or imposed upon Purchaser and/or its agents, customers and vendors in any such suit or proceeding, including any settlement. Purchaser may be represented by and actively participate through its own counsel in any such suit or proceeding if it so desires, and the costs of such representation shall be paid by Seller.
In the event that Seller's work under this order requires or contemplates the performance of services by Seller's employees or persons under contract to Seller on Purchaser's property or the property of Purchaser's customers, Seller agrees that all such work shall be done as an independent contractor and that the persons doing such work shall not be considered employees of the Purchaser. Seller shall observe the highest safety standards in performing any such work, and shall maintain all necessary insurance coverage, including but not limited to Workers' Compensation Insurance to statutory limits, primary comprehensive general liability insurance and primary comprehensive automobile liability insurance. Seller shall furnish certificates evidencing such insurance at Purchaser's request. Seller shall indemnify and save harmless and defend Purchaser from any and all claims or liabilities arising out of any such work, and shall be solely responsible for any deductible provisions of its insurance, any loss or damage in excess of the policy limits, and/or any loss or damage not covered by insurance. The defense and indemnification obligations under this paragraph shall not be limited by a limitation on amount or type of damages, compensation or benefits payable by or for Seller or a subcontractor of Seller under any workers' or workmen's compensation acts, disability benefit acts or other employee benefit acts.
Seller shall defend, indemnify and hold harmless Purchaser from and against all claims, demands, actions, causes of action, damages, liabilities and judgments, and costs and expenses, including attorneys' fees, attributable to bodily injury, sickness, disease or death of any person or persons, or to injury to or destruction of tangible property, including loss of use resulting therefrom, which Purchaser may incur and which may arise out of or result in any way from any defect in the goods or services purchased hereunder or from any act, omission or negligence of Seller, its agents, employees or subcontractors. The defense and indemnification obligations under this paragraph shall be in addition to the warranty obligations of Seller and shall not be limited by a limitation on amount or type of damages, compensation or benefits payable by or for Seller or a subcontractor of Seller under any workers' or workmen's compensation acts, disability benefit acts or other employee benefit acts.
Purchaser 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 agreement shall be modified in writing accordingly. Seller agrees to accept any such changes subject to this paragraph.
Payment for the goods delivered hereunder shall not constitute acceptance thereof. Purchaser shall have the right to inspect such goods and to reject any or all of said goods which are in Purchaser's judgment defective or nonconforming. Goods rejected and goods supplied in excess of quantities called for herein may be returned to Seller at its expense and, in addition to Purchaser's other rights, Purchaser may charge Seller all expenses of unpacking, examining, repacking and reshipping such goods. In the event Purchaser receives goods whose defects or nonconformity is not apparent on examination, Purchaser reserves the right to require replacement, as well as payment of damages. Nothing contained in this order shall relieve in any way the Seller from the obligation of testing, inspection and quality control.
This order, together with all documents referred to on the face hereof, constitutes the entire agreement between Purchaser and Seller and supersedes all prior understandings and agreements; and shall be amended only by a writing signed by the duly authorized representatives of Purchaser and Seller.
Assignments and Subcontracting.
No part of this order may be assigned or subcontracted without prior written approval of Purchaser.
All claims for money due or to become due from Purchaser shall be subject to deduction or setoff by the Purchaser by reason of any counterclaim arising out of this or any other transaction with Seller.
Purchaser's failure to exercise any or all of its rights in the event of a breach of any of the terms or conditions herein by Seller shall not be construed as a waiver of any other breach, whether of the same or similar type.
Time is of the essence with respect to the delivery dates and/or times for the goods and/or services that are the subject of this order. In the event that Seller's delivery of goods or rendering of services is not completed when due, Purchaser, in addition to all other rights and remedies it may have, may purchase substitute items or services elsewhere and charge Seller with any loss incurred.
Limitation of Liability; Statute of Limitations.
In no event shall Purchaser be liable for any special, incidental, indirect or consequential damages (or equivalents thereof no matter how claimed, computed or characterized) arising out of or in connection with this order or Purchaser's performance or breach hereof, regardless of whether any such liability shall be claimed in contract, warranty, equity, tort (including negligence, gross negligence and strict tort liability) or otherwise. Any action resulting from any breach of contract on the part of Purchaser as to the goods or services delivered hereunder shall be deemed settled and forgiven in full unless commenced within one (1) year after the cause of action has accrued.
Law and Forum.
For orders placed with any Kurt J. Lesker Company entity other than Kurt J. Lesker Company Ltd. in the United Kingdom: This order shall be governed by and construed in accordance with the substantive law of the Commonwealth of Pennsylvania, without regard to its choice of law provisions. All claims, disputes, controversies and other matters in question arising out of or related to this order shall be determined by recourse only to the courts of the Commonwealth of Pennsylvania in Pittsburgh, Pennsylvania or in the federal district court in Pittsburgh, Pennsylvania, and Seller hereby consents to the jurisdiction of said courts to decide said issues. Notwithstanding the foregoing, in the event that Purchaser is sued or subjected to any other action or proceedings in any other state or forum, Purchaser shall have the right to join Seller and prosecute its claims, or any one or more of them, against Seller in such other suit, action or proceeding.
For orders placed with Kurt J. Lesker Company Ltd.: This order shall be governed by and construed in accordance with the laws of England and Wales. All claims, disputes, controversies and other matters in question arising out of or related to this order shall be determined by recourse only to the courts of England and Wales and Seller hereby consents to the jurisdiction of said courts to decide said issues. Notwithstanding the foregoing, in the event that Purchaser is sued or subjected to any other action or proceedings in any other jurisdiction or forum, Purchaser shall have the right to join Seller and prosecute its claims, or any one or more of them, against Seller in such other suit, action or proceeding.
Compliance with Laws.
Seller shall comply with all applicable laws.
To the extent applicable, Seller shall comply with the requirements of the General Data Protection Regulation 2016/679, including any local implementing rules thereof. Without limiting Seller's other obligations arising hereunder with respect to Information shared by Purchaser, the personal data of Purchaser, its employees, other suppliers, and customers which may be disclosed by Purchaser to Seller shall be maintained by Seller securely and in strict confidence, not shared with any third party, and not otherwise used in any manner except as may be directed in writing by Purchaser. Upon Purchaser's request, Seller shall return or delete such personal data, except that a copy thereof may be securely retained as may be required to comply with applicable law. Seller must immediately notify Purchaser of any data breaches impacting the personal data shared by Purchaser and shall provide to Purchaser all necessary assistance to support Purchaser's obligation to report the breach to the relevant authorities.
The provisions of these terms and conditions shall, where the context so requires, continue in full force and effect notwithstanding any termination or suspension or the issuance of any payment.
This agreement shall inure to the benefit of and be binding upon the successors, legal representatives and assigns of the parties hereto. This agreement is severable such that the invalidity or unenforceability of any part or provision shall not affect the validity or enforceability of any other part or provision.
Equal Opportunity Clauses Applicable to Government Contracts
If this order is a Government contract or subcontract, the Seller agrees to abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a), which are incorporated herein by this reference. These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, national origin, sexual orientation, or gender identity. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, sexual orientation, gender identity, protected veteran status or disability.