1. The acceptance of this order is expressly limited to the terms herein and any additional or different terms suggested by the Seller are hereby rejected unless agreed to in writing by ABC. Upon acceptance by Seller, this order shall constitute a valid and binding contract which shall be governed by and construed according to the laws of the State where contract is performed. ABC may require written acknowledgement with complete delivery information. ABC reserves the right to cancel without liability if Seller fails to comply with acknowledgement requirements. If not stated in this order, prices shall not be higher than the last price charged by Seller to ABC or the market price, whichever is less.
2. Seller warrants that all material and equipment furnished under this order: (a) shall be the best of their respective kind; (b) shall be of good quality and workmanship and free from defects, latent or patent; and (c) shall produce capacities or meet design specifications and function (1) as called for in any specifications identified or referenced herein, and (2) as published or warranted by the manufacturer for the item involved. Without charge to ABC, Seller agrees to replace without charge to ABC, any defective or non-conforming material and equipment or remedy any defects not due to ordinary wear and tear or due to improper maintenance which may develop within one year from date of installation, or within the guarantee period set forth in applicable specifications, whichever is longer.
3. Where this order requires, material and equipment furnished hereunder is subject to approval of the architect, engineer, or other party mentioned, and Seller shall furnish the required number of submittal data or samples for approval within the time designated. In the event approval is not obtained, this order is cancelled with no liability on the part of either ABC or Seller, unless the order is placed with the understanding that the material and/or equipment is to be supplied of the type and in such a manner as to meet requirements of specifications. In the latter case, Seller shall immediately on notice replace same or remedy any deficiency without expense to ABC and further shall pay to ABC all consequential loss and damage resulting therefrom.
4. When indicated, shipment will be made by the method, carrier and/or routing specified on the front of this order. The materials and equipment covered by this order shall remain the property of Seller until delivered to the specified destination and accepted by ABC, and any damage to the material and equipment or loss of any kind occasioned in transit shall be borne by Seller, notwithstanding the manner in which the goods are shipped and transportation costs are paid. All shipping containers must be marked with vendorʼs name, ABCʼs purchase order number, and must contain an itemized packing slip of all contents. No charges will be allowed for cartage or boxing unless approved by ABC in writing. No overshipment will be accepted unless first approved by ABC in writing.
5. Invoices and bills of lading must bear ABCʼs purchase order number and be mailed immediately. Separate invoices must be rendered for each partial shipment. All invoices must be DUPLICATE.
6. TIME OF DELIVERY IS OF THE ESSENCE. ABC reserves the right to cancel, without charge, all or any part of this order if not filled within the specified time. Such right reserved to ABC herein or by law for any delay or failure to deliver as specified.
7. Seller shall protect, indemnify and hold harmless ABC from and against all claims, liability, loss, damage, and expense, including attorney’s fees, arising, in whole or in part, out of (a) any actual or alleged infringement of any patent or license covering any article purchased hereunder and (b) any breach of this contract by Seller including any delay or failure to deliver as specified.
8. Seller shall furnish, if requested by ABC, all necessary bills of sale, affidavits or other documents of title, in form satisfactory to ABC. Such documents may be conditioned upon receipt of payment for materials or equipment covered thereby, if payment has not been received by Seller.
9. Seller shall not assign or transfer its responsibilities under this order, or any part hereof, or any amount due and payable or to become due and payable hereunder, without the written consent of ABC, and any such assignment or transfer without such written consent shall be void.
10. All prior representations, conversations or preliminary negotiations shall be deemed to be merged in this order. This order shall be binding upon and shall benefit the parties hereto and their respective successors, assigns, heirs, administrators, executors and legal representatives, provided that nothing contained in this paragraph shall be construed so as to authorize Seller to make any assignment or transfer prohibited by paragraph 9 above.
11. Seller agrees to comply with all applicable laws, ordinances, orders, regulations, and directives in any manner relating to or connected with employment (including but not limited to the Fair Labor Standards Act of 1938, as amended) and Seller shall require compliance therewith by all suppliers and subcontractors with whom Seller may contract for anything relating to any material and equipment furnished hereunder.
12. Seller warrants that all equipment and material furnished hereunder is in full compliance with the requirements of the Occupational Safety and Health Act of 1970, the Construction Safety Act of 1969, any other applicable federal, state or local laws, ordinances or statutes concerning safety or product liability (including any common law duty to label or warn) and including all standards and regulations thereunder (collectively “Laws”), and Seller agrees to and shall indemnify, protect and hold harmless ABC from and against all claims, liability, loss, damage and expense, including ABC’s attorney’s fees, for any claimed violation of the Laws arising out of or resulting from the equipment or material furnished hereunder and Seller shall directly receive and be responsible for all citations, assessments, fines or penalties which may be incurred by reason of the failure of the equipment or materials furnished hereunder to comply with the Laws.