Purchase Order Terms and Conditions

The below Terms and Conditions shall apply to all Purchased Orders issued by Intech Partners LLC (dba XrayCurtains.com or Lead Free Shields) as the Buyer. 

 

1. TERMS AND CONDITIONS. These Terms and Conditions apply to all orders by Buyer for goods, materials, equipment, and/or services to be provided by Seller hereunder (“Goods”). Contract formation and acceptance by Buyer are expressly conditioned upon Seller’s agreement to the terms of these Terms and Conditions of Purchase.
2. ORDERS. Each Purchase Order placed by a Buyer with Seller, together with these Terms and Conditions and all attachments, exhibits and schedules attached hereto, constitutes the entire agreement with respect to the subject matter herein between Seller and Buyer and may not be added to or varied except by a writing signed by both parties.  Buyer expressly objects to and shall not otherwise be bound by any additional or different terms, whether printed or otherwise, in any order acknowledgements, invoices or any other document or communication from Seller.  Buyer reserves the right to make changes in (1) the specifications for any Goods; (2) the method of shipment or packaging; (3) the place and time of performance; and (4) the articles and materials, including the quantity thereof, to be furnished by the Seller (each a “Change”). If any such Change cause an increase or decrease in the cost of, or the time required for performance of a Purchase Order, an equitable adjustment shall be made in the contract price or performance schedule, or both, by mutual agreement. Any request by Seller to adjust the terms of any applicable Purchase Order as a result of a Change must be submitted to Buyer in writing within thirty (30) days from the date Seller receives notice of the Change.
3. DELIVERY.

(a)  Time is of the essence for the delivery of the Goods and performance of any services under the Purchase Order.  Seller acknowledges that Buyer’s production schedules and projects are based upon the agreement that the Goods ordered will be delivered by the date(s) specified in the Purchase Order. Seller shall notify Buyer if the Goods will not be delivered by the required date as soon as Seller makes such determination.   In the event Seller fails to meet the any delivery date set forth in the Purchase Order, Seller shall be liable for the liquidated damages, if any, specified in the Purchase Order.

(b)  Unless otherwise provided in a Purchase Order, delivery of the Goods will be FOB Seller’s facility to the destination specified by Buyer in the Purchase Order or other destination as may be provided by Buyer.  Any deviation must be approved in writing by Buyer prior to shipment.  Shipments must be in exact amounts and separate loads or partial loads are not permitted unless otherwise agreed to in writing by Buyer in advance.  Buyer’s count of the amounts in any shipment shall be accepted as correct.  Any premium cost incurred to expedite delivery or for late deliveries will be at the sole cost and expense of Seller.  Any deviation from Buyer’s shipping instructions shall be made at the sole cost and expense of Seller.  The risk of loss and title with respect to the Goods (including transportation delays and losses) shall pass to Buyer upon delivery of the Goods to Buyer.  No loss, injury or destruction of the Goods prior to their deliver to Buyer shall release Seller from any obligations with respect to the Goods (including, without limitation, Seller’s obligation to timely deliver and/or replace the Goods). 

4. INSPECTION. Buyer reserves the right to inspect and test any and all Goods provided for in any Purchase Order at any time (including the period of manufacture) and at any location (including Seller’s premises).  Seller shall provide Buyer’s inspectors reasonable access to all facilities.  The foregoing shall not release Seller from its obligation to adequately test and inspect the Goods, nor shall the foregoing relieve Seller from its obligation to furnish Goods which conform to all contractual requirements.  Notwithstanding prior inspection or payment for Goods, all Goods are subject to final inspection and acceptance upon delivery. Acceptance of Goods or failure to ascertain or discover defects shall in no way be a waiver of any warranties or any rights Buyer may have pursuant to this Agreement or at law or in equity.  Buyer reserves the right to refuse or revoke acceptance of any Goods that do not conform with the specifications set forth in in the Purchase Order, that are not delivered to Buyer in accordance with the delivery schedule set forth in the Purchase Order or otherwise do not conform to the requirements of the Purchase Order and these Terms and Conditions.  Acceptance of a part of the Goods shall not bind Buyer to accept the remainder of the Goods, nor deprive Buyer of the right to return Goods already delivered.  Goods which do not comply with the specifications set forth in in the Purchase Order and these Terms and Conditions are subject to return at the risk and expense of the Seller. 
5. PACKING AND SHIPPING. Seller shall suitably pack, mark and ship all Goods in accordance with the requirements of common carriers and in a manner which will assure arrival of Goods in a safe and undamaged condition.  No additional fee for packing, shipping or delivery shall be charged by Seller unless otherwise stated in the Purchase Order or in a signed writing agreed to by Buyer.  Each package or container delivered must be appropriately marked to show the Purchase Order number and must include a packing list.
6. DOCUMENTATION REQUIRED. With respect to each Purchase Order and each delivery, as applicable, hereunder Seller shall provide Buyer the documentation listed within the Buyer’s Purchase Order and Seller’s Proposal and such other documentation as may be reasonably requested by Buyer from time to time. Payment for the Goods shall not be due until Buyer has received the necessary documentation.
7. TAXES, FREIGHT, INSURANCE. Unless set forth in the Purchase Order or required by law, Seller assumes exclusive liability for, and shall pay before delinquency, all sales, use, duties, VAT, excise, and other taxes, charges or contributions of any kind now or hereafter imposed on, with respect to, or measured by the articles sold or materials or work supplied hereunder. Seller shall also be responsible for all freight, insurance, packing, crating, handling, shipping and all other incidental charges, expenses and costs incident to delivery to Buyer. No additional charge may be made therefor unless agreed to in writing by Buyer in advance.  
8. PRICE AND PAYMENT. The price appearing on the face of this Purchase Order shall be the entire price to Buyer unless otherwise agreed in writing. Unless otherwise provided in the Purchase Order, Payment shall be made within thirty (30) days of Buyer’s receipt of a properly prepared invoice together with such supporting documentation as Buyer may reasonably require.
9. TERMINATION. In the event Seller or any subcontractor (i) breaches any provision of the Purchase Order or these Terms and Conditions and fails to cure such breach within fifteen (15) days of written notice, (ii) files a voluntary petition in bankruptcy, (iii) makes a general assignment for the benefit of its creditors, (iv) suffers or permits the appointment of a trustee or receiver for its business assets, (v) becomes subject to any proceeding under any bankruptcy or insolvency law which is either consented to by such other party or is not dismissed within ninety (90) days, (vi) initiates actions to wind up or liquidate its business voluntarily or otherwise, (vii) ceases doing business in the ordinary course, or (viii) anything analogous to any of the events described in this sentence occurs under the laws of any applicable jurisdiction, Buyer shall have the right (without limiting any other rights or remedies which it may have hereunder or by operation of law) to terminate any and all Purchase Orders by written notice to Seller whereupon Buyer shall be relieved of all further obligation hereunder, and Seller shall be liable to Buyer for all costs incurred by Buyer in completing or procuring the completion of performance in excess of the applicable Purchase Order price. 
10. WARRANTIES.

(a)  Seller warrants that all Goods and the components of all Goods are new and have not been previously used and that the Goods provided by Supplier will conform in all respects to requirements of this Agreement, and will be free from defects in materials, workmanship, and design for one (1) year from the date of package startup, or eighteen (18) months after Seller notifies Buyer of readiness to ship, whichever is first.  Seller further warrants that the Goods provided will be of merchantable quality and capable of performance as set forth in the Purchase Order and/or any specifications furnished by Buyer to Seller.  Seller will, at Seller’s sole expense and to the reasonable satisfaction of Buyer, promptly repair or replace any defective or non-conforming Goods, or, at Buyer’s option, promptly refund to Buyer all monies paid by Buyer for the defective or non-conforming Goods, including any freight, upon the return of the Goods to Seller. The warranty period for any portion of the Goods for which Buyer has timely provided notice of a defect hereunder shall be extended to the first anniversary of the date such defect was corrected, repaired, modified, or replaced by Supplier.  

(b)  Seller warrants that all services will be performed in accordance with the Purchase Order or other specifications provided by Buyer and will be performed in a good and workmanlike manner.  Seller will, at Seller’s sole expense and to the reasonable satisfaction of Buyer, promptly correct or re-perform any non-conforming services, or, at Buyer’s option, promptly refund to Buyer that portion of the consideration that is attributable to the non-conforming services.  If Seller fails to promptly commence or complete performance of the services, including correcting or re-performing any non-conforming services, Buyer shall have the right to have the nonconforming service performed by other means and Seller will be responsible for all reasonable costs incurred by Buyer in doing so.

(c)  The warranties contained in this section will survive any inspection, test, acceptance and/or payment for the Goods or services and shall run to Buyer, its successors, assigns, customers and all users of its products. 

(d)  Seller warrants that Buyer’s use and possession of the Goods furnished hereunder does not infringe, dilute, misappropriate or otherwise violate any patent, copyright, or trademark or other intellectual property right of any third party.

(e)  The provisions of this Section 11 shall be in addition to any rights or remedies provided by law or under this agreement, including Buyer’s right to terminate the applicable Purchase Order.

11. OWNERSHIP OF INFORMATION AND MATERIALS. Buyer shall, at all times, be the owner of all information and materials that Buyer provides to Seller or is resulting from Seller's services to Buyer, including without limitation, designs, layouts, blueprints, and specifications relating thereto, including all creative ideas included therein.  Upon the completion, or in the event of the cancellation or termination of the Purchase Order, all copies of all such information, materials and work product shall be returned and delivered to Buyer by Seller.
12. LIENS. Buyer shall deliver the Goods to Buyer free and clear of all liens, encumbrances or claims of any third party
13. INSURANCE. If this order includes services or work to be performed on Buyer's premises or the premises of a customer of Buyer, Seller agrees to observe the highest safety standards, to adhere to all applicable work rules, safety standards and security requirements, to maintain statutory Workers’ Compensation, Employer’s Liability and Commercial General Liability and Automobile Liability insurance on behalf of Seller and its subcontractors of at least $1,000,000 combined single limit. Upon Buyer’s request, Seller shall provide Certificates of Insurance evidencing all such policies.  Insurers and underwriters shall be satisfactory to Buyer and authorized to do business in the jurisdiction where Goods or work are being provided.
14. CONFIDENTIALITY. Seller agrees that any and all drawings, specifications, processes, reports, data and other technical or proprietary information of Buyer or its affiliates (“Confidential Information”) that is disclosed to or received by Seller (i) shall be treated as Buyer’s confidential, proprietary and trade secret information (with Buyer reserving all rights to its Confidential Information); (ii) shall be held by Seller in strict confidence, (iii) shall be used by Seller only for purposes of the applicable Purchase Order, and (iv) that no Confidential Information, including without limitation the provisions of the Purchase Order or these Terms and Conditions Agreement, shall be disclosed by Seller without the prior written consent of Buyer. Seller shall safeguard Buyer’s Confidential Information with at least the same degree of care (which shall always be at least a reasonable amount of care) that it uses to safeguard its own confidential, proprietary, and trade secret information.  Upon completion of the Purchase Order, or upon demand by Buyer, all such Confidential Information and any copies thereof shall immediately be returned to Buyer.
15. INDEMNIFICATION.

(a) Buyer shall release, defend; indemnify and hold harmless Seller and each of its respective officers, directors, and employees (collectively, the "Seller Group") from and against any and all actions, claims, costs (including without limitation, costs of investigation, litigation, and court costs), damages, demands, fines, interest, judgments, liabilities, losses, penalties, proceedings, suits (including appeal), and expenses (including, without limitation, reasonable attorneys’ fees) (collectively, "Claims") of whatsoever kind or character that are brought by or on behalf of any member of the Buyer Group alleging bodily injury, illness, or death of any member of the Buyer Group or their invitees (except for Seller) which arise out of, relate to, or are connected with an Agreement or the performance thereof.

(b)  Seller shall release, defend; indemnify and hold harmless Buyer Group from and against any and all Claims that are brought by or on behalf of any member of the Seller Group, alleging bodily injury, illness, or death of any member of the Seller Group or their invitees which arise out of, relate to, or are connected with an Agreement or the performance thereof.

(c)  THE OBLIGATIONS TO RELEASE, DEFEND, INDEMNIFY AND HOLD HARMLESS CONTAINED IN SECTIONS 15(a) and 15(b) SHALL APPLY EVEN IF CAUSED, IN WHOLE OR IN PART, BY THE JOINT, SOLE, OR CONCURRENT NEGLIGENCE, PRE-EXISTING CONDITIONS, STRICT LIABILITY, CONTRACTUAL LIABILITY TO OTHER MEMBERS OF THE INDEMNIFIED PARTY’S GROUP OR OTHER FAULT, WHETHER PASSIVE OR ACTIVE, OF ANY PERSON OR ENTITY, INCLUDING BUT NOT LIMITED TO THE INDEMNIFIED PARTY’S GROUP, BUT NOT TO THE EXTENT CAUSED BY OR RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY MEMBER OF THE INDEMNIFIED PARTY’S GROUP.

(d) Seller agrees to release, defend, indemnify and hold harmless Buyer Group, from and against any and all Claims that are brought by or on behalf of any person or entity, that arise out of, relate to, or are connected with the Purchase Order or the performance hereunder, including without limitation, Claims alleging or arising out of: (i) damage to, loss of, or loss of use of any property resulting from the negligence or willful misconduct of any member of the Seller Group; (iii) Seller Group’s non-compliance with any provision of an Agreement; and/or (iv) Seller Group’s violation of any governmental laws, regulations, ordinances, permits, licenses, or orders.

(e)  Seller agrees to release, defend, indemnify and hold harmless Buyer Group from and against any and all Claims that are brought by or on behalf of any person or entity, alleging that the Buyer Group’s use or possession of the Goods infringes, dilutes, misappropriates, or otherwise violates the copyright, trade secret, trademark, trade dress, service mark, patent or any other proprietary right (including without limitation, moral, termination, privacy, or personality rights) of any person or entity.

16. LIMITATION OF LIABILITY.

(a)  EXCEPT FOR BUYER’S INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL BUYER OR BUYER GROUP HAVE ANY LIABILITY TO SELLER FOR INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR LOSSES INCLUDING, BUT NOT LIMITED TO, DAMAGES OR LOSSES FOR LOST PRODUCTION, LOST REVENUE, LOST PRODUCT, LOST PROFITS, LOST BUSINESS OR BUSINESS INTERRUPTIONS, EVEN IF BUYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL BUYER BE LIABLE TO SELLER UNDER ANY PURCHASE ORDER FOR ANY AMOUNT IN EXCESS OF THE PURCHASE PRICE OF THE GOODS COVERED BY OR SUBJECT TO SUCH PURCHASE ORDER, REGARDLESS OF LEGAL THEORY.

(b)  Except as set forth in the immediately following sentence, notwithstanding anything to the contrary in this Purchase Order or otherwise, Seller’s total aggregate liability with respect to the Purchase Order shall be limited to the total Purchase Order price, including, without limitation, any liability in connection with the manufacture, sale, delivery or installation and repair work (under warranty or otherwise) covered by or furnished under the Purchase Order.  This limitation of liability does not apply to Seller’s liability for fraud, willful misconduct, gross negligence, Seller’s indemnification obligations under section 15(b), breach of confidentiality obligations, breach of law, or loss of or damage to third party physical property or third party personal injury or death.

17. GENERAL PROVISIONS:

(a) Notice.  Any notices shall be deemed effective and delivered three days after mailing if sent certified mail, return receipt requested, or when received if sent by fax, prepaid courier, express mail or personal delivery to the intended recipient thereof at the address specified by the applicable party.

(b) Independent Contractor.  Seller, in providing the Goods hereunder, is acting as an independent contractor and neither Seller nor any of Seller’s personnel shall be deemed for any purpose to be the employee, agent or representative of Buyer.  Neither Seller nor Seller’s personnel will have any authority to bind Buyer to any third party without specific written authority from Buyer. 

(c)  Governing Law/Venue.  The validity, performance, and construction of each Agreement shall be governed by the laws of the State of Texas (excluding its conflict of laws rules which would refer to and apply the substantive laws of another jurisdiction). Each party hereto hereby submits to the exclusive jurisdiction of the applicable state and federal courts located in Montgomery County, Texas in connection with any matter arising out of or in connection with the Purchase Order or these Terms and Conditions. Each party agrees to waive any objection that the state or federal courts of Montgomery County, Texas, are an inconvenient forum.  This United Nations Convention on Contracts for the International Sale of Goods shall apply to any Agreement.

(d)  Severability.  If any provision of an Agreement is held invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision of such Agreement, and such Agreement will be construed as if such invalid or unenforceable provision were omitted. 

(e)  Survival.  The provisions of these Terms and Conditions which by their nature are intended to survive the termination of the Purchase Order and these Terms and Conditions shall survive the expiration or other termination of this agreement. 

(f)  Assignment.  Buyer may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Seller.  Any assignment made in contravention of this Section 18 (f) shall be null and void for all purposes.

(g)  Compliance with Laws.  Each party hereto agrees to comply with all federal, state, and local laws, rules, and regulations in effect in the United States of America and any other country or territory in respect of their activities contemplated by an Agreement, including without limitation the United States Foreign Corrupt Practices Act.