THE FOLLOWING GENERAL TERMS AND CONDITIONS ("TERMS AND CONDITIONS") GOVERN THE PURCHASE BY POTTER ELECTRIC SIGNAL COMPANY, LLC ("POTTER") OF ALL GOODS, EQUIPMENT AND MATERIALS ("GOODS") AND/OR ANY SERVICES FROM ANY SELLER ("SELLER") MADE PURSUANT TO POTTER'S PURCHASE ORDER TO SELLER, INCLUDING ANY WRITTEN AGREEMENT BETWEEN POTTER AND SELLER, OR PURSUANT TO ANY OTHER ORDER OR PROPOSAL BY POTTER DELIVERED TO SELLER OR ANY OF SELLER'S REPRESENTATIVES (COLLECTIVELY, THE "PURCHASE ORDER"). THESE TERMS AND CONDITIONS ARE INCORPORATED BY REFERENCE INTO EACH PURCHASE ORDER FROM POTTER. BY ACCEPTING AN ORDER, SELLER INDICATES THAT IT HAS READ AND ACCEPTED THESE TERMS AND CONDITIONS.
Acceptance of Terms. The purchase price offered by Potter and set forth in the Purchase Order is based on Seller's acceptance of these Terms and Conditions, and accordingly, Seller's acceptance of the Purchase Order is expressly conditioned on Seller's acceptance of these Terms and Conditions. The Terms and Conditions shall constitute the sole and exclusive agreement between Potter and Seller, and the same may not be altered, amended, modified or rescinded except in writing signed by Potter and Seller. Any terms and conditions contained in any forms or documents heretofore or hereafter supplied by Seller to Potter which are in addition to or different from the Terms and Conditions herein contained shall not be a part of the contract between Potter and Seller, nor shall Potter's receipt of the Goods or services described on the face hereof or in the Purchase Order be construed as an acceptance of any terms and conditions contained in any such forms or documents supplied by Seller.
Performance. Time is of the essence in the performance of this Purchase Order and if the Goods are not delivered or the services not provided in the manner and at the times specified, Potter reserves the right without liability and in addition to its other rights and remedies to take either or both of the following actions: (a) direct expedited delivery of the Goods or performance of services, with any difference in cost caused by such change paid by Seller, and/or (b) purchase substitute Goods and charge Seller with any loss or additional costs Potter incurs. Seller will promptly advise Potter of any delay in performance, including notice with regard to any Goods placed under backorder. Seller's performance is not deemed completed until the Goods or services have been accepted by Potter. All Goods shipped under this Purchase Order shall be shipped FOB Potter's plant or other destination designated by Potter.
Inspection. All Goods and services purchased hereunder are subject to inspection by Potter at all reasonable times and places notwithstanding the terms of payment, and in any event, prior to final acceptance. No inspection made prior to final acceptance will relieve Seller from responsibility for failure to meet the requirements of this Purchase Order. In the event the Goods or services do not meet the applicable specifications and instructions, Seller will promptly re-perform the nonconforming services or provide replacement Goods satisfactory to Potter at Seller's sole expense. If Seller is unable to accomplish the foregoing, Potter may procure such Goods or services from another source and charge to Seller's account all costs, expenses and damages associated therewith.
Payment. Invoices must contain the following information: Purchase Order number, part numbers, description of services, prices, extended totals and an attachment of all supporting documentation, if any. Any adjustments in Seller's invoices due to late performance, rejections or other failure to comply with the requirements of this Purchase Order may be made by Potter before payment. Payment does not constitute final acceptance. Except as otherwise provided in the Purchase Order, and notwithstanding the terms of Seller's invoices, amounts invoiced to Potter by Seller are payable within 60 days of the invoice date.
Setoffs. Potter may set off against any amount otherwise due to Seller under the Purchase Order any amount or amounts due to Potter from Seller from any source, including, without limitation, (i) any obligation of Seller to Potter under the Purchase Order or these Terms and Conditions or (ii) any costs or expenses incurred by Potter on Seller's behalf or that are reimbursable by Seller.
Cancellation; Changes. Potter may, by written notice to Seller make changes to any one or more of the following: (a) specifications for services or Goods, (b) quantity, and (c) place and/or time of performance. For any reason, Potter may also direct Seller to suspend in whole or in part the provision of Goods or the performance of services hereunder permanently or for such period of time as may be determined by Potter to be necessary or desirable; provided, however, that upon cancellation of a Purchase Order, Potter shall pay for any Goods and services already received and shall pay reasonable cancellation charges imposed by Seller. If any such change or suspension causes an increase or decrease in the cost or time required for the performance of services or provision of Goods hereunder, an adjustment may be made in the price or delivery schedule, or both, and the Purchase Order will be modified. Any claim for adjustment by Seller will be deemed waived unless asserted in writing within ten (10) days from receipt by Seller of the notice of change.
Warranty. Seller expressly warrants that the Goods or services provided under this Purchase Order will be performed in accordance with Potter's specifications and instructions. Seller further warrants that the Goods and services will be merchantable, non-infringing, free from defects and fit and sufficient for the purposes intended. Further, the services will be performed with the highest degree of skill and judgment exercised by recognized professionals performing the same or similar services. These warranties are in addition to all other warranties, express, implied or statutory. Payment for, inspection of, or receipt of the Goods or services does not constitute a waiver of any breach of foregoing warranties. If any failure to conform to these warranties are found within twenty-four (24) months from the date the Goods and/or services are accepted by Potter, Seller will, at its own expense and at Potter's option either: (a) provide replacement Goods satisfactory to Potter, (b) re-perform the nonconforming services to the satisfaction of Potter, or (c) refund to Potter the total amount paid for such Goods or services. Seller will extend all warranties it receives from its suppliers to Potter and to Potter's customers.
Confidential Information. Potter and Seller acknowledge that, in their course of dealings, Seller may acquire from Potter confidential and proprietary information about Potter, its business activities and operations, its employees, trade secrets or any other information which by its sense or nature should reasonably be considered confidential (the "Confidential Information"). The Confidential Information of Potter will only be disclosed to Seller's employees, agents or consultants with a need to know and who are under a written obligation to keep the Confidential Information confidential. Seller will not disclose the Confidential Information to any third parties. Seller will use the same degree of care but no less than a reasonable degree of care that it uses with regard to its own confidential information to prevent the disclosure of Potter Confidential Information. If Potter and Seller enter into a Nondisclosure Agreement, in the event of a conflict between such Nondisclosure Agreement and these Terms and Conditions, the terms of the Nondisclosure Agreement shall control.
Publicity and Disclosure. Without securing the prior written consent of Potter in each instance, Seller will not use the name or logo of Potter or Potter's customer in any news release, public announcement, advertisement, or other form of publicity, or disclose any of the terms or subject matter of this Purchase Order to any third party except as may be required to perform this Purchase Order.
Indemnification. TO THE FULLEST EXTENT ALLOWED BY LAW, SELLER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS POTTER AND POTTER'S CUSTOMERS, AND ITS AND THEIR AFFILIATES AND SUBSIDIARIES AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, SUCCESSORS AND ASSIGNS (COLLECTIVELY, "SELLER INDEMNITEES") FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, LOSSES AND EXPENSES, INCLUDING WITHOUT LIMITATION ATTORNEYS' FEES AND EXPENSES (WHETHER INCURRED AS THE RESULT OF A THIRD PARTY CLAIM OR A CLAIM TO ENFORCE THE PURCHASE ORDER), WHICH MAY HEREAFTER BE ASSERTED AGAINST OR SUFFERED BY ANY OR ALL OF THE SELLER INDEMNITEES (INCLUDING BUT NOT LIMITED TO CLAIMS FOR PERSONAL INJURY, PROPERTY DAMAGE OR ANY ACTUAL, ALLEGED OR CONTRIBUTORY PATENT OR COPYRIGHT INFRINGEMENT, MISAPPROPRIATION OF CONFIDENTIAL INFORMATION, OR VIOLATION OF OTHER INTELLECTUAL OR PROPRIETARY RIGHTS) ARISING DIRECTLY OR INDIRECTLY OUT OF THE GOODS SUPPLIED OR SERVICES PERFORMED BY SELLER UNDER THE PURCHASE ORDER, EXCEPT TO THE EXTENT SUCH ACT OR OMISSION IS AT THE DIRECTION OF POTTER. IN ANY AND ALL CLAIMS AGAINST ANY OF THE SELLER INDEMNITEES, THIS INDEMNIFICATION OBLIGATION SHALL NOT BE LIMITED IN ANY WAY BY ANY LIMITATION ON THE AMOUNT OR TYPES OF DAMAGES, COMPENSATION OR BENEFITS PAYABLE BY OR FOR POTTER. POTTER AGREES TO GIVE SELLER PROMPT WRITTEN NOTICE (INCLUDING THE FULLEST INFORMATION OBTAINABLE AT THE TIME) OF ANY INDEMNIFIABLE CLAIMS, DEMANDS, LOSSES, DAMAGES, LIABILITIES OR EXPENSES OF WHICH IT OBTAINS KNOWLEDGE. SELLER SHALL HAVE THE RIGHT TO SELECT COUNSEL TO DEFEND ITSELF AND THE PARTIES INDEMNIFIED HEREUNDER (WHICH COUNSEL SHALL BE REASONABLY ACCEPTABLE TO ALL SUCH PARTIES).
Limitation on Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SELLER OR POTTER BE LIABLE FOR CONSEQUENTIAL DAMAGES INCLUDING WITHOUT LIMITATION LOSS OF OR DAMAGE TO ANY EQUIPMENT SUPPLIED BY SELLER OR LOSS OF PRODUCTION, REGARDLESS WHETHER THE CLAIM FOR SUCH CONSEQUENTIAL DAMAGES BE BASED ON WARRANTY (EXPRESS OR IMPLIED), CONTRACT, TORT OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY THEREOF.
Safety. Seller shall comply with and enforce its own safety rules and shall be solely responsible for the safety of its employees. Seller will also comply with and enforce all applicable safety rules of Potter and Potter's customers. Finally, Seller will observe, comply with and enforce compliance with applicable laws, regulations and rules promulgated by any federal, state or local governmental body or agency on the subject of safety. Seller will also require its subcontractors to likewise comply with and enforce all said safety rules or requirements. In the event that Potter receives one or more citations from the Occupational Safety and Health Administration (or any comparable state or local agency) based on the actions or inactions of Seller's employees, Seller agrees to indemnify and hold harmless Potter for all fines, attorneys' fees and costs incurred by Potter arising from or associated with defending against such citations. Seller will not perform any work without proper training and shall possess all certifications required by Potter, Potter's customers or applicable law.
Relationship of the Parties; Control. Seller is an independent contractor and nothing contained in the Purchase Order or these Terms and Conditions will be deemed or construed to create a partnership, joint venture, agency or other relationship other than that of supplier and customer. Seller is solely responsible for payment of all compensation owed to its employees as well as employment related taxes. Any agreements or commitments entered into by Seller are not binding on Potter and further, Potter assumes no liability with respect to any agreements or commitments entered into by Seller with its employees, agents, suppliers and the like. Seller, as an independent contractor, shall be in sole charge and exclusive control of all services performed for Potter, and shall furnish all material, equipment, labor and supervision necessary for the complete and satisfactory performance of such services. Seller's personnel shall be properly trained and knowledgeable in the work they are performing, and it is Seller's obligation to train its personnel accordingly. Notwithstanding the foregoing, Seller may employ only such subcontractors as shall be approved by Potter. Seller agrees to a clause substantially similar to the above clause to be included in all of Seller's subcontracts and will require all subcontractors to adhere to the above provisions.
Compliance with Laws. Seller will comply with the applicable provisions of all federal, state or local laws or ordinances and all orders, rules and regulations issued thereunder.
Non-Waiver of Rights. The failure of Potter to insist upon strict performance of any of the Terms and Conditions or to exercise any rights or remedies hereunder will not be construed as a waiver of its rights to assert any of the same or any other Terms and Conditions under this Purchase Order.
Remedies. Any rights and remedies specified under these Terms and Conditions and this Purchase Order are cumulative, non‑exclusive and in addition to any other rights and remedies available at law or in equity.
Severability. If any provision contained in these Terms and Conditions and this Purchase Order is held or finally determined to be invalid, illegal or unenforceable in any respect, in whole or in part, such provision will be severed from the Purchase Order and these Terms and Conditions, and the remaining terms contained herein will continue in full force and effect.
Governing Law. This Purchase Order and these Terms and Conditions are governed by and construed in accordance with the laws of the State of Missouri without regard to its conflict of law provisions. Seller agrees that the state and federal courts in Missouri will have the exclusive jurisdiction and venue over any claims arising out of or related to these Terms and Conditions and this Purchase Order.
Entire Agreement. The Purchase Order and these Terms and Conditions, including all documents incorporated herein by reference, together constitute the entire agreement and understanding between the parties and supersedes and replaces any and all prior or contemporaneous representations, agreements or understandings of any kind, whether written or oral, relating to the subject matter hereof. Except as specified in these Terms and Conditions, no change, modification or revision of this Purchase Order is valid unless agreed to in writing by Potter.
Survival. Both parties agree that any term or condition of this Purchase Order which by its sense or nature should be deemed to survive the expiration or termination of this Purchase Order will so survive.