Applicability. Unless otherwise agreed to in writing, these Purchase Order Terms and Conditions apply to all purchases by, and are made a part of any Purchase Order issued by, The Lebermuth Company Inc. (“Buyer”) from the supplier of any goods, services, or other ordered item (“Seller”). These Purchase Order Terms and Conditions, and the terms and conditions in Buyer’s applicable Purchase Order, constitute the sole and entire agreement of the parties with respect to the Purchase Order, and supersede all other understandings, agreements, representations, communications, or warranties, oral or written, regarding the Purchase Order subject matter. By accepting a Purchase Order from Buyer, Seller waives all terms and conditions contained in its documents or communications which are different from or additional to those set forth in the Purchase Order and herein. Only a written agreement signed by an authorized representative of Buyer shall supersede any conflicting terms herein or in the Purchase Order.
Price. The price will be set forth in the Purchase Order. Unless otherwise specified in the Purchase Order, the price includes all costs to comply with the terms of the Purchase Order, and any and all taxes, fees, duties, assessments, or other charges. If Buyer is required to pay any of these charges, Seller will promptly reimburse Buyer.
Invoicing and Payment. All invoices made to Buyer shall be delivered to Buyer at its office as indicated in the Purchase Order. The invoice shall clearly set forth Buyer’s Purchase Order number. Individual invoices shall be sent for the shipment applying to each Purchase Order.
Shipping and Delivery. Delivery shall be made according to the terms of the Purchase Order. Unless otherwise agreed to in writing, delivery shall be FOB point of destination. Itemized packing lists must accompany each shipment and include Buyer’s Purchase Order number, item number, quantity of containers, tare and gross weights per container, and any other information required by law and specified on Purchase Order.
Title and Risk of Loss. Title passes to Buyer upon delivery to the destination specified in the Purchase Order. Seller retains the risk of loss or damage to the goods subject to the Purchase Order until they are physically delivered to the location specified in the Purchase Order.
Acceptance and Inspection. Buyer has the right to inspect and test the goods subject to the Purchase Order on or after the delivery date. Buyer may reject nonconforming goods or services, recover damages, and exercise any other remedies to which Buyer may be entitled. Acceptance of goods or services does not waive any rights accruing to Buyer as a result of any breach of contract by Seller. Rejected goods may be returned to Seller or disposed of at Seller’s expense.
Warranties. Seller warrants to Buyer that all goods (a) will conform to the specifications set forth in the Purchase Order, (b) be free from defects in workmanship, design or material, (c) be merchantable, (d) be fit for their intended purpose, (e) be free and clear of all security interests, liens and encumbrances, (f) will comply with all applicable laws, rules, and regulations of the places of manufacture, intended use and delivery, (g) be of highest grade and quality, and (h) not infringe upon any patent or other intellectual property rights of the parties or any third party. These Warranties are in addition to those available by law to Buyer and shall survive the acceptance or inspection by Buyer of any goods or services.
Code of Conduct. Seller will comply with Buyer’s Code of Conduct found here.
Insurance. Seller shall, at its own expense, maintain and carry insurance in full force and effect protecting from claims for damages because of bodily injury, including death, claims for benefits under workers’ compensation acts or employee benefit acts, and from claim for property damage resulting from performance of the Purchase Order. This insurance shall apply to Seller, Seller’s subcontractors, or anyone directly or indirectly employed by any of the foregoing. This insurance shall be written for coverage of One Million Dollars ($1,000,000.00) or more per occurrence, or at a higher level if required by law. Seller shall, upon Buyer’s request, provide Buyer with a certificate of insurance from Seller’s insurer showing the insurance coverage required. The Buyer shall be included as an additional insured. The insurance shall include waiver of subrogation and right of recovery in favor of Buyer and its insurers. Seller shall provide Buyer at least 30 days advance written notice of a cancellation or material change in any of the terms of the insurance policy. If Seller is a sole proprietor, or a member of a partnership or a limited liability corporation, without workers’ compensation insurance, Seller must provide a “Certificate of Exemption” from the Indiana Worker’s Compensation Board.
Indemnification. Seller shall defend, indemnify, and hold harmless Buyer, its affiliates, and their directors, officers, employees, agents, shareholders, and representatives against any liability, loss, claim, deficiency, action, judgement, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, resulting from (a) negligence or willful misconduct of Seller, Seller’s subcontractors, employees, agents, representatives, or other person performing services regarding the Purchase Order for Seller, (b) breach by Seller of its obligations under the Purchase Order, and (c) any claim that Buyer’s use of the goods subject to the Purchase Order infringes or misappropriates any patent, copyright, trade secret, or other intellectual property right of any third party.
Time Is of The Essence. Buyer shall be immediately notified by Seller upon receipt of any Purchase Order if the delivery date cannot be met, and Buyer shall have the option to cancel the Purchase Order without any liability. Buyer may cancel without liability any order that is not delivered by the scheduled delivery date.
Cancellation. Buyer may immediately cancel any Purchase Order without liability, before or after shipment, by providing written notice to Seller if Seller has breached the Purchase Order or become insolvent or subject to proceedings under bankruptcy or insolvency laws.
Compliance with Law. Seller shall comply with all applicable laws, regulations, and ordinances. Seller shall comply with all export, import, and customs laws of all countries involved or having an interest in the subject matter of the Purchase Order, and Seller is responsible for all responsibilities and requirements for shipments of items subject to the Purchase Order requiring governmental import or export approval and clearance including but not limited to compliance with the 10+2 US Customs regulations.
Certification Documents. Seller shall provide in PDF format, or other format requested in writing by Buyer, all applicable certification documents including, but not limited to, Fumigation, Kosher, Halal, Natural, NOP, C of A, SDS, Food Grade, BRC/SQF, and Pesticide.
Ownership of Inventions and Proprietary Information. Any and all discoveries, improvements, inventions, or ideas, patentable or not, developed for Buyer, or based upon or arising from Buyer’s information, will belong to Buyer without regard to when created. Works of authorship produced by Seller for Buyer shall be deemed “works made for hire”, and Buyer will receive all rights, interests, and title to the works. All information and things furnished by Buyer to Seller shall be used solely for the Purchase Order and remain the sole property of Buyer.
Confidential Information. The terms and conditions of the Purchase Order and all propriety and confidential information of Buyer obtained by Seller shall be kept confidential by Seller. Seller will use this information only to perform the terms of the Purchase Order, and will not disclose the information except to the extent required by law and after prior notice to Buyer.
Assignment. Seller shall not assign or subcontract any rights or obligations under the Purchase Order without the Buyer’s prior written consent.
Waiver. No waiver by Buyer of a breach of any term of the Purchase Order shall constitute a waiver of any other breach, or of such provisions. Remedies hereunder are cumulative, and in addition to the remedies provided in law or equity.
Force Majeure. Each party may be excused from failing to perform or delaying to perform, in whole or in part, its obligations under the Purchase Order when a circumstance beyond the party’s control occurs preventing fulfillment of the Purchase Order. Such circumstances include war, riot, crime, fire, explosion, accident, sabotage, change of governmental law or regulation, acts of God, national defense requirements or any other event beyond the reasonable control of the party which prevents the manufacture, shipment, acceptance or use of any the items provided pursuant to the Purchase Order.
Relationship of Parties. The parties are in an independent contractor relationship. Nothing shall be construed as creating any joint venture, partnership, agency, or other form of joint enterprise or fiduciary relationship between the parties or any third party.
Governing Law. The laws of the State of Indiana, United State of America, disregarding any conflict of law rules of Indiana, govern the Purchase Order.
Origin Control. The Seller nor any person or entity that owns or controls it shall be, and Seller shall represent and warrant that they are not, the target of economic trade sanctions by the United States, European Union, United Nations, or the country of origin of the things subject to the Purchase Order.
Convention. The United Nations Convention on Contracts for International Sale of Goods of 1980, the Uniform Law on International Sale of Goods and Uniform Law on Formation of Contracts for International Sale of Goods of 1964, and the United Nations Convention on Limitations Period in the International Sale of Goods of June 1974, as amended, shall not apply to the Purchase Order.
Severability. If any term or provision of the Purchase Order is invalid, illegal, or unenforceable, in whole or in part, in any jurisdiction, that shall not affect any other term of the Purchase Order or invalidate or render any term of the Purchase Order as unenforceable.
Notices. Any notice required or permitted to be delivered shall be deemed received when personally delivered or when confirmed as received by facsimile, express courier, or United States mail (postage prepaid, certified and return receipt requested) addressed to Seller or Buyer at their address as set forth in the Purchase Order.
Survival. The terms of the Purchase Order which by their nature should continue to apply after termination or expiration of the Purchase Order shall continue to apply, including, but not limited to, Sections 7, 9, 10, 13, 16, 21, and 26.
Amendment. The Purchase Order may be amended only in a writing signed by both parties.