FMT, INC. (FMT) Purchase Order Terms and Conditions
1. ACCEPTANCE: This order becomes a binding contract upon the terms and conditions set forth herein when SELLER accepts by executing and returning the attached acknowledgment copy or when SELLER commences performance whichever occurs first. Additional or different terms proposed by SELLER are objected to and rejected unless accepted in writing by FMT Inc. (FMT). No change in modification of or revision to this order shall be valid unless in writing and signed by FMT.
2. DELIVERY: Time is of the essence in the performance of this order. Failure to delivery at the location and time as noted on the FMT purchase order shall be deemed default on the part of the seller. Under such default FMT shall seek remedy by any one of the following options: Reject the order, accept all or part of the order, charge seller such cost incurred as a result of late delivery, find an alternate source and charge the price difference, or other remedy available.
3. PRICE WARRANTY: SELLER warrants that prices shown on this purchase order shall be complete and no additional charges of any type shall be added without FMT’s express written consent. Such additional charges include, but are not limited to shipping, packaging, labeling, custom duties, taxes, storage, insurance, boxing, crating.
4. WARRANTY: SELLER expressly warrants that all supplies furnished hereunder will be fit for the purpose intended, will be free from defects in material and workmanship, will conform to all applicable specifications, drawings, samples and descriptions, and unless of FMT’s design, will be free from design defect and will be merchantable and saleable. SELLER agrees to replace or correct defects of any supplies not conforming to the foregoing warranty promptly, without expense to FMT, when notified of such nonconformity by FMT, in the event of failure of SELLER to correct defects or replace nonconforming supplies promptly. FMT, after reasonable notice to SELLER, may make such corrections or replace such supplies and charge SELLER for the cost incurred by FMT. All warranties shall be construed as conditions as well as warranties and shall be in addition to all warranties implied by law. All warranties shall run to FMT, its successors, assigns and customers. SELLER shall not knowingly deliver to FMT material that contains nonconformances to the blueprint, specifications and terms and conditions to this purchase order without prior written approval from FMT.
5. REJECTIONS: FMT reserves the right to reject and receive full credit for any article or articles which are defective as to material, workmanship, quality or otherwise, or which are not in conformity with the specifications, drawings or the sample approved by FMT without extra cost to FMT.
6. DISPUTES: In the event FMT claims that the items furnished or to be furnished under this order do not conform to the description contained in this order and SELLER contends that FMT’s claims and/or in the event of any other dispute between the parties regarding rights obligations under this purchase order. SELLER shall proceed in accordance with FMT’s instructions pending resolution of the dispute. In the event of resolution of the dispute in favor of SELLER, the price of this order shall be equitably adjusted to compensate SELLER for efforts expended in complying with FMT’s instructions insofar as FMT’s instructions impose burdens upon the SELLER in addition to those imposed by this order prior to the issuance of FMT’s instructions.
7. CHANGES: FMT may at any time by written notice make changes within the general scope of this order in any one or more of the following (I) drawings, design, or specifications, (II) method of shipping or packing, (III) place of inspection, acceptance or point of delivery (IV) delivery schedule, (V) quantity. Should any such change increase or decrease the cost of or the time required for performance of this order an equitable adjustment may be requested by SELLER in the price, delivery schedule or both. No claim by SELLER for such an adjustment will be valid unless submitted to FMT within ten (10) days from the date of such change notice. Nothing contained herein shall excuse SELLER from proceeding without delay in performing this order as changed.
8. TERMINATION FOR CONVENIENCE OF PURCHASER AND FOR CAUSE: FMT reserves the right to terminate this order or any part thereof for its sole convenience. In the event of such termination, SELLER shall immediately stop all work hereunder and shall immediately cause any of its suppliers or subcontractors to cease such work. SELLER shall be paid a reasonable termination charge consisting of a percentage of the order price reflecting the percentage of the work performed prior to the notice of termination plus actual direct costs resulting from termination. SELLER shall not be paid for any work done after receipt of the notice of termination, nor any costs incurred by SELLER’s suppliers or subcontractors, which SELLER could reasonably have avoided. FMT may terminate this order or any part thereof for cause in the event of any default by the SELLER or if the SELLER fails to comply with any of the terms and conditions of this order. Late deliveries of products which are defective or which do not conform to this order and failure by the SELLER to provide FMT, upon request, reasonable assurances of future performance shall all be causes allowing FMT to terminate this order. In the event of termination for cause FMT shall not be liable to SELLER for any amount and SELLER shall be liable to FMT for any and all damages sustained by reasons of the default which gave rise to the termination.
9. FORCE MAJEURE: FMT reserves the right at its option to either suspend shipments of materials covered by this order or to cancel this order in whole or in part any time where such suspension or cancellation is caused by Government order of other requirements, embargoes, acts of civil or military authorities, acts of the public enemy, inability to secure transportation facilities, strikes, differences with workers, accidents at plant of FMT, or other law or order or regulation or other contingency beyond control of FMT.
10. INDEMNIFICATION: SELLER shall defend, indemnify and hold harmless against all damages, claims or liabilities and expenses (including attorney’s fees) arising out of or resulting in any way from any defect in the goods or services purchased hereunder or from any act or omission of SELLER, its agents, employees or subcontractors. This indemnification shall be in addition to the warranty obligations of SELLER.
11. CONFIDENTIAL RELATIONSHIP: SELLER agrees to treat as strictly secret and confidential all specification drawings, blueprints, nomenclature, samples, models and other information supplied by FMT. Unless the written consent of FMT is first obtained, SELLER shall not in any manner advertise or publish or release for publication any statement mentioning FMT or the fact that SELLER has furnished or contracted to furnish for FMT articles required by this order or quote the opinion of any employee of FMT. The SELLER shall not disclose any information relating to this order to any person not entitled to receive it.
12. ASSIGNMENT AND SUBCONTRACT: This order shall not be assigned or transferred without prior written consent of FMT. SELLER agrees that it will not subcontract the furnishing of any other completed or substantially completed articles required by this order without prior written approval of FMT.
13. ENTIRE AGREEMENT: This order and any documents referred to herein contain all the terms and conditions of these transactions and no agreement or other understanding in any way modifying the condition hereof shall be binding unless made in writing as a change order or supplement and signed by FMT.
14. LIEN RELEASE: SELLER shall indemnify and hold harmless FMT from and against all liability loss, cost, damage or expense, including attorney’s fees which FMT may suffer or incur as a result of any claim (1) which is made as result of any injury or death to or damage to the property of any person including but not limited to FMT, SELLER, or any employee, agent, invited or licensee of either or (2) for laborers, mechanics and/or material liens which arise out of or in connection with the work under this Order.
14. WAIVER: Failure of FMT to insist upon strict performance of any of the conditions of this order shall not constitute a waiver of such condition or a waiver of any default.
15. INTERPRETATION AND JURISDICTION: This purchase order shall be construed and interpreted solely in accordance with the laws of the Sate of Ohio. SELLER hereby consents and submits to the jurisdiction of the appropriate courts in Hancock County in the State of Ohio for adjudication of any question of law arising hereunder.