Purchase Order Terms and Conditions

1.0 Entire Agreement: This purchase order, and any documents referred to on the face hereof, constitute the entire agreement between the parties and is expressly conditioned upon Supplier’s acceptance of all of the terms and conditions of purchase contained therein. Any additional or different terms or conditions which may appear in any communication from Supplier are hereby expressly objected to and shall not be effective or binding unless specifically agreed to in writing despite Buyer’s acceptance of goods or services.

2.0 Changes: Buyer shall have the right at any time to make changes in drawings, quantity, 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.

3.0 Force Majeure: Buyer may delay delivery and/or acceptance for causes beyond its control.

4.0 Warranties: Supplier warrants that it has good and marketable title to all Products delivered to Buyer pursuant to this Agreement and the same shall be delivered to Buyer free and clear of all liens and encumbrances. Supplier warrants that all goods or services furnished hereunder shall conform to the description and specification thereof, be merchantable, and free from any defects in design, workmanship or material. Supplier also warrants that the items furnished hereunder are suited for their intended use. Supplier shall indemnify and save Buyer harmless from any breach of this warranty, and no limitations on Buyer’s remedy in Supplier’s documents shall operate to reduce this indemnification. Supplier shall extend all warranties it receives from its suppliers to Buyer, and Supplier’s warranty shall extend to Buyer’s customers. This warranty is in addition to all warranties implied in law. SUPPLIER’S WARRANTY SHALL EXTEND FOR A PERIOD OF 12 MONTHS AFTER THE ITEM IS DELIVERED AND ACCEPTED BY BUYER AND APPLIED TO ITS INTENDED USE.

5.0 Termination:

5.1 Termination for Convenience Buyer reserves the right to terminate this contract for its convenience. In such event Supplier shall immediately stop all work and observe any instructions from Buyer as to work in process. Supplier shall be paid an equitable adjustment for work already performed.

5.2 Termination for Cause By written notice of default to Supplier, or if Supplier becomes insolvent or makes an assignment for the benefit of creditors, or if there shall be instituted by or against Supplier any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt or insolvency law of any jurisdiction or for the appointment of a receiver or trustee in respect to any of Supplier’s property and such proceeding is not dismissed or cured within 60 days, Buyer may cancel the whole or any part of this order or exercise any other remedy provided purchasers of goods by law or in equity.

6.0 Remedies: Not by way of limitation, the remedies of the parties include:

6.1 If Buyer cancels this order in whole or in part as provided in Section 5.2, Buyer may procure upon such terms and in such manner as Buyer may deem appropriate goods or services similar to those cancelled and Supplier shall be liable to Buyer for any excess costs for such similar supplies or services, including Buyer’s costs incurred in making such procurements, provided that Supplier shall continue the performance of this order to the extent not cancelled under the provisions of this order.

6.2 The rights and remedies of Buyer provided in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law or under this order.

6.3 The failure of Buyer to insist upon strict performance of any of the terms of this order or to exercise any rights hereunder shall not be construed as a waiver of Buyer’s rights.

7.0 Price:

7.1 Price Warranty: Supplier warrants that the prices for the articles sold Buyer hereunder are not less favorable than those currently extended to any other customer for the same or similar articles in similar quantities.

7.2 Unpriced Orders: If price is not stated on this order, it is agreed that the goods or services shall be billed at the price last quoted to, or paid by a customer of Supplier, or the prevailing market price, whichever is lower.

8.0 Shipments and Packaging: If in order to comply with Buyer’s required delivery date it becomes necessary for Supplier to ship by a more expensive way than specified in this purchase order, any increased transportation costs resulting therefrom shall be paid for by Supplier unless the necessity for such rerouting or expedited handling has been caused by Buyer and approved in advance.

8.1 Time is of the essence in making deliveries under this Order and in Supplier’s performance of Services.  Buyer may, in addition to all other remedies available to it, cancel a Purchase Order and this Agreement in whole or in part, without liability, if deliveries are not made at the time specified in the Agreement.  

8.2 Quantity Tolerance: If Supplier delivers less than 95% or more than 110% of the quantity of Products ordered, Buyer may reject all or any excess Products. Any such rejected Products shall be returned to Supplier at Supplier’s risk and expense. If Buyer does not reject the Products and instead accepts the delivery of Products at the increased or reduced quantity, the Price for the Products shall be adjusted on a pro-rata basis.

8.3 Packaging: Supplier shall package the goods in accordance with accepted standard commercial practices for normal shipment considering the type of goods involved and the normal risks encountered in shipment. Each package shipped to Buyer shall be numbered and labeled with Buyer’s purchase order number, stock number, contents and weight, and shall contain an itemized packing slip. No charges of any kind will be allowed, including charges for boxing, packing, crating or cartage, unless specifically agreed to by Buyer on the face hereof.

9.0 Blanket Purchase Orders: In the event that a Purchase Order states that it is a blanket purchase order, any quantities thereon will be estimates only, and Buyer reserves the right to increase or decrease the quantity ordered at any time in its sole discretion.  Any such Purchase Order will not create any commitment on the part of Buyer to purchase any Work from Seller. With respect to such Purchase Order, Buyer will only be obligated to purchase, and Seller will only be obligated to sell, the Work in quantities and at the times specified in the written instructions of Buyer or Buyer’s authorized agent.

10.0 Invoice Payment: Payment terms are net sixty (60) days from receipt of a correct invoice. Delay in receiving invoices, as well as errors and omissions on invoices, will be considered just cause for Buckhorn to withhold payment without losing discount privileges, if any.  All of Supplier’s claims for money due or to become due from Buckhorn under this P.O. shall be subject to deduction or set-off by Buckhorn by reason of any counterclaim arising out of this or any other transaction with Supplier or any of Supplier’s affiliated companies.

10.1 Invoices shall be rendered separately for each delivery, cover not more than one order, and specify Buyer’s purchase order number.

10.2 Invoice remit to address:  Attention: Accounts Payable; Buckhorn, Inc.; 400 TechneCenter Dr.; Suite 215  Milford, OH 45150-2746

10.3 Email address:   AP@BUCKHORNINC.COM

11.0 Risk of Loss: Regardless of F.O.B. point, Supplier agrees to bear all risk of loss, injury, or destruction of goods and materials ordered herein which occur prior to acceptance by Buyer. No such loss, injury, or destruction shall release Supplier from any obligations hereunder.

12.0 Quality Standards:

12.1 Name Brand: If a special brand is specified in this order, the goods being purchased must meet the standard for quality, performance, and use of such brand. If Buyer elects to accept goods purported to be equal to the special brand, the goods may be rejected if any specification is determined to be nonconforming.

12.2 Custom-Made: Any parts or materials that are custom-made to Buyer’s specifications are required to pass inspection criteria established by Buyer’s Quality Assurance Department.

13.0 Inspection and Quality Control: All items furnished under this order by Supplier to Buyer shall be subject to inspection and tests by Buyer, or its designated representatives. To the extent practicable, inspection maybe made at all times and places including the period of manufacture and prior to acceptance.

14.0 Rejection: All goods purchased hereunder are subject to Buyer’s inspection and approval. Goods rejected by Buyer for whatever reason shall be held, transported and/or stored at Supplier’s sole expense. Supplier shall promptly reimburse Buyer for any such expenses. Buyer reserves the right to charge Supplier an administrative cost for any rejection.

15.0 Assignment: Supplier shall not assign or subcontract this order without Buyer’s prior written consent.

16.0 Verbiage: The term “Supplier” or “Contractor” or both of said terms, as may be appropriate, shall mean the person, firm or corporation to whom the purchase order is addressed, whether the order be for manufactured goods, materials, supplies and work, or some or all of them.

17.0 Special Tooling, Drawings, Artwork or Specifications:

17.1 Supplier is responsible for the protection, calibration, maintenance, and care (other than normal wear) of all tooling, artwork, and equipment owned by Buyer. Said tooling, artwork or equipment shall be subject to surveillance inspection upon notice and shall be returned in an acceptable condition upon demand or notice.

17.2 Any drawings, artwork, or specification prepared by Supplier are to become the property of Buyer and shall be marked “Property of Buyer, Inc.” and shall be stored separately when not in use. Such drawings, artwork or specifications will be sent to the Buyer Purchasing Department immediately when requested.

18.0 Advertising: No advertising or publicity matter having or containing any reference to Buyer shall be made by Supplier without the prior written consent of Buyer.

19.0 Infringements: Supplier warrants that Buyer’s purchase, installation, sale and/or use of the goods covered hereby, including, but not limited to any related documentation, will not result in any claim of infringement, or actual infringement of any patent, trademark, copyright, franchise, trade secret or other intellectual property right. Supplier shall indemnify and hold Buyer harmless from and against all claims, losses, expenses, damages, causes of action and liabilities of every kind and nature, including without limitation reasonable attorneys’ fees, arising from or out of any breach of the foregoing warranty.

20.0 Disclosure of Information: All data and information not already in the public domain, developed or disclosed during the life of this order, will be the property of Buyer and will be held in secrecy and confidence by the Supplier. Supplier shall protect all data and information received from Buyer with the same degree of care with which it protects its own trade secrets and proprietary, commercial, technical and confidential information. Supplier will keep confidential all such data and information until it comes into the public domain or until Buyer’s Purchasing agent consents in writing to disclosure.

21.0 Compliance with Laws: Buyer is an equal opportunity employer and federal contractor.  Consequently, the parties agree that, to the extent applicable:  (1) they will comply with the following laws, which are incorporated herein by reference: Executive Order 11246, Executive Order 13496 (29 CFR Part 471, Appendix A to Subpart A) relating to the notice of employee rights under federal labor laws, 41 CFR 60-300.5(a) and 41 CFR 60-741.5(a); and (2) this contractor and subcontractor shall abide by the requirements of 41 CFR 60-300.5(a) and 41 CFR 60-741.5(a).  These regulations, respectively, prohibit discrimination against qualified protected veterans and qualified individuals on the basis of disability and require affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans and qualified individuals with disabilities.  In addition, Supplier shall comply with all applicable federal, state and local laws, rules, regulations and other legal requirements, including, but not limited to the Fair Labor Standards Act, as amended, provisions of the Equal Opportunity Clause of Section 202 of Executive Order 11246, as amended, Section 503 of the Rehabilitation Act of 1973, as amended, and the Vietnam Veteran’s Readjustment Act of 1974, and shall indemnify and hold harmless Buyer against all fines and penalties assessed and costs and expenses incurred which may arise out of or result from the Supplier’s failure to do so. The laws of Ohio shall govern this transaction, excepting its choice of law principles.

21.1 Prohibition on Conflict Minerals. Reference is made to Section 1502 of the Dodd Frank Wall Street Reform and Consumer Protection Act implementing provisions addressing disclosure of the use of conflict minerals originating from the Democratic Republic of Congo or adjoining countries (the “Regulation”). Supplier represents, warrants, certifies and covenants that the Goods supplied in accordance with this P.O. do not contain conflict minerals from the Democratic Republic of Congo or adjoining countries, and if the Goods supplied in accordance with this P.O. do contain conflict minerals, such Goods are DRC conflict free.

22.0 Service or Installation of Work: In the event this order requires the performance of work or installation of goods by Supplier upon any property or project of Buyer, the following conditions shall also be applicable:

22.1 Supplier shall take precautions to protect all property and persons from damage or injury arising out of its work and shall comply with all fire, safety and other applicable regulations prescribed by any governmental agency and by Buyer and/or owner of the project upon which work is being performed, and shall be responsible for the observance thereof by all sub-contractors, employees, agents and representatives of Supplier and its sub­contractors.

22.2 Supplier shall keep the premises and work free and clear of all mechanics’ and materialmen’s liens or claims; Supplier shall promptly pay for all labor and material and if Supplier fails to do so Buyer, without waiving any rights or remedies against Supplier for or by reason of such failure may, but without any obligation to do so, pay the same and deduct the amount of such payments from sums due Supplier hereunder; and Buyer may withhold any payment to Supplier until receiving such affidavits, waivers, and releases with respect to claims for labor and materials as Buyer may require.

22.3 The work shall remain at Supplier’s risk prior to written acceptance by Buyer and/or the owner of the project and Supplier shall replace at its own expense all work damaged or destroyed by any cause whatsoever.

22.4 Supplier shall observe and comply with, to the extent required by Buyer, the wages, hours and working conditions established by Buyer on the project or required of Buyer by an applicable labor agreement.

22.5 Supplier shall act as an independent contractor and not as the agent or representative of Buyer.

22.6 Supplier shall perform its work in accordance with the schedules and work programs established by Buyer and shall fully cooperate with Buyer and others engaged in work on the project so that the work on the entire project may be performed with the utmost speed, consistent with good practices. In case of conflict, Buyer may direct the necessary coordination.

22.7 Supplier shall carry on its work so that the premises shall at all times be clean, orderly and free from debris and upon completion shall remove all equipment and unused materials from the project; cleanup all refuse and debris and leave the site of the work clean, orderly and in good condition.

22.8 Supplier shall require Supplier’s employees, agents, contractors or sub-contractors to abide by Buyer’s Work and Safety rules when work or services are performed at Buyer’s premises. Buyer has the right to exclude personnel from Buyer’s premises who do not abide by such rules, and at Buyer’s election, to declare a default under the order.

22.9 Supplier is solely liable for its employees, agents, contractors or subcontractors and their action while on Buyer’s premises and the Supplier indemnifies and will protect Buyer from all losses, claims, expenses, damages arising from or out of the presence or activity of Supplier’s employees while at Purchaser’s premises.

23.0 Trademarks, Logos and Advertising. Buyer’s name, trademark and/or logo may not be used by Supplier without Buyer’s prior written approval. Supplier will not, without Buyer’s prior approval (which approval Buyer may withhold in its discretion), refer to Buyer in any advertising, press release, client list or other promotional or marketing materials.

24.0 Insurance. During the term of this P.O. and for a period of one (1) year thereafter, Supplier shall maintain insurance coverage as follows: (a) Workers’ Compensation with statutory limits including Employers’ Liability with limits of not less than $ 1,000,000 each accident/$1,000,000 each employee for disease/$1,000,000 policy limit for disease; (b) Commercial General Liability with limits not less than a combined single limit of $1,000,000 each occurrence/$2,000,000 general aggregate/$2,000,000 products & completed operations aggregate. Such insurance shall be written on an occurrence basis on a current Insurance Services Office (ISO) or equivalent form; (c) Business Automobile Liability with limits not less than $1,000,000 combined single limit each accident. Such insurance shall be written on an occurrence basis on a current Insurance Services Office (ISO) or equivalent form; (d) All Risk Equipment Insurance covering all risk of physical damage to equipment owned by or provided by Supplier and brought to a Buyer facility for use by Supplier. Supplier shall provide Buyer with certificates of insurance evidencing all required insurance and (e) Professional Liability with limits of $1,000,000 each claim/$1,000,000 annual aggregate. Insurance carriers providing said insurance shall be admitted to do business in the state where the Goods are to be supplied and shall carry an A.M. Best’s rating not less than A-, VIII. All insurance policies hereunder shall (a) name Buyer and its affiliates as an additional insured, (b) be primary to any other insurance carried by Buyer which shall be specifically excess to and not contributing therewith; and (c) include a provision waiving the insurer’s right of subrogation against Buyer. If requested by Buyer, Supplier shall obtain an endorsement requiring thirty (30) days written notice to Buyer before cancellation or material change in coverage of Supplier’s insurance coverage.