Purchase Order Terms and Conditions

Purchase Order Terms and Conditions

1.  Controlling Terms and Conditions. 
 Acceptance of this Purchase Order is expressly limited to the terms and conditions stated herein and any additional or different term or condition on Seller’s invoice or acknowledgement form, or otherwise communicated by Seller in accepting this Purchase Order or in any quotation or proposal of Seller shall be deemed to be a material alteration of this Purchase Order and is hereby objected to and rejected by Buyer.  Any such term or condition shall be totally inapplicable to this Purchase Order unless specifically agreed to in writing signed by an authorized representative of Buyer.  Acceptance of the Goods covered by this Purchase Order shall not constitute acceptance by Buyer of Seller’s terms and conditions.  Any correspondence, quotation, proposal, bid, invoice or other communication from Seller characterized as an offer is hereby rejected in full, and in such situation this Purchase Order constitutes Buyer’s counter-offer. 

2.  Acceptance. This Purchase Order is an offer to purchase the goods and services as set forth on the face hereof (the “Goods”).  Any of the following acts by Seller shall constitute acceptance of this offer:  Signing and returning to Buyer a copy of this Purchase Order; delivery of any of the Goods ordered by this Purchase Order; commencement of the performance requested by this Purchase Order or informing the Buyer in any manner of commencement of performance; sending to Buyer Seller’s own acknowledgment form regarding the Goods; or delivery of the Goods (or a portion of the Goods) to Buyer.  Upon acceptance, this Purchase Order shall constitute the entire agreement between the Buyer and the Seller with respect to the Goods.
3. Changes. The quantities, prices, terms and conditions of this Purchase Order shall not be changed except by Buyer's written authorization. Buyer and Seller acknowledge and agree that the Goods and services to be furnished hereunder are to be specifically manufactured in accordance with drawings and/or specifications.  Buyer and Seller further acknowledge and agree that Buyer may, at any time, by written order make changes in (i) drawings, designs or specifications, (ii) method of shipment or packing, and (iii) place of delivery and that when such terms are conveyed to Seller, such terms shall constitute a part of this Purchase Order. If any such change causes an increase or decrease in the cost of the Goods, an equitable adjustment shall be made in the purchase price. Seller shall submit its claim within thirty days from the date of receipt of notification of change unless said period is extended in writing by Buyer. Where the cost of property, which has become obsolete or excess as the result of any change is included in Seller's claim for adjustment, the Buyer shall have the right to prescribe the disposition of such property. 

4. Specifications. If blueprints, drawings, designs or specifications are furnished by the Buyer, this Purchase Order shall be based upon and the Goods shall conform to such blueprints, drawings, designs and specifications, and approval of samples by the Buyer shall not relieve the Seller from strict and full compliance with such blueprints, drawings, designs and specifications. Goods not conforming to such blueprints, drawings, designs and specifications may be rejected. 

5. Payment Not Constituting Acceptance. Payment for any item on this Purchase Order shall not constitute approval or acceptance of such Goods by Buyer or otherwise impair Buyer’s rights or remedies in respect of any default by Seller, and Buyer's right of inspection shall survive payment. Buyer retains the right to inspect the Goods and if the Goods are defective or do not conform to the requirements of this Purchase Order, then Buyer reserves the right to reject the Goods.  Upon such rejection, Buyer may terminate this Purchase Order and return the Goods to Seller in exchange for a refund of the purchase price for the Goods.  Rejected Goods shall be returned at the expense of Seller upon rejection and Seller shall bear all risk of loss as to such rejected Goods.  Alternatively, Buyer may elect to retain rejected Goods and remedy any defects or nonconformity to specifications, drawings or samples and the costs of accomplishing such remedy shall be a reduction in the purchase price paid by the Buyer for the Goods, and Seller shall refund to Buyer any overpayments within 10 days after notice from Buyer.  Notwithstanding Buyer’s termination of this Purchase Order or return of Goods to the Seller, Buyer shall retain any and all claims and rights available to it for damages for breach of contract. 

6. F.O.B., Title and Risk of Loss.  The Goods shall be shipped by the Seller at Seller’s cost F.O.B. the Buyer at the Buyer’s address designated on the face of this Purchase Order.  The risk of loss or damage to the Goods shall pass to Buyer upon Buyer’s acceptance of the Goods.  Title to the Goods purchased hereunder shall not pass from Seller to Buyer until the Goods have been delivered to and accepted by Buyer in accordance with the terms of this Purchase Order.

7. Delivery-Inventory Control.  Deliveries of the Goods shall be strictly in accordance with the schedule referred to in this Purchase Order and in the exact quantities ordered.  The Seller will limit and phase expenditures, incurrence of costs and purchases and subcontract commitments for raw materials and components in such fashion to ensure continuity of production and permit performance and completion of each production increment in sequence without creating any unreasonable accumulations of raw materials or components for any production increments.  Shipments in excess of quantities or in advance of scheduled delivery dates as shown herein are not to be made without Buyer’s written approval.  Buyer reserves the right to return to Seller at Seller’s expense any shipments received contrary to this Section 7 and Seller shall bear all risk of loss as to such returns.

8.  Warranty. The Seller warrants that at the time of delivery thereof all Goods and work provided for under this Purchase Order will be: (i) fit for the purpose for which they are intended; (ii) merchantable, of good material and workmanship and free from any defects in material or workmanship; (iii) will conform to the requirements of this Purchase Order, including any blueprints, drawings, designs or specifications forming a part of this Purchase Order; and (iv) this warranty will run to the buyer, its successors, assigns, customers and users of the Goods. These warranties, and all other warranties express or implied, shall survive delivery, inspection, acceptance and payment.  Buyer shall deliver notice of any defects in the Goods or failure to comply with any of the Seller’s warranties set forth herein.  Buyer may, at its sole option, require the Seller to promptly correct or replace the defective or non-conforming Goods. The costs of shipment of such defective or non-conforming Goods from Buyer's location to Seller's location and the costs of shipment for any replacement or repaired Goods to Buyer shall be borne by the Seller and the risk of loss to all such Goods shall be borne by Seller. This warranty shall continue as to the replacement and repaired Goods. If the Buyer does not require repair or replacement, the Buyer may elect to retain any defective or non-conforming Goods and remedy any defects or nonconformity and the costs of accomplishing such remedy shall be a reduction in the purchase price paid by the Buyer for the Goods, and Seller shall refund to Buyer any overpayments within 10 days after notice from Buyer.  None of the provisions or remedies set forth in this Section 8 is in lieu of any claims for damages (including incidental, consequential or lost profits) which Buyer may have at law or in equity (whether under the Missouri Uniform Commercial Code or otherwise) for the Seller’s breach of this agreement including Seller’s warranties set forth in this Section 8, all of which claims for damage are specifically reserved by Buyer.

9. Cancellation by Buyer. Buyer reserves the right to cancel this Purchase Order, or any part thereof, at any time, even though the Seller is not in default hereunder, by giving written notice to the Seller. In the event of such cancellation, Buyer shall pay for all Goods and services delivered and completed and an equitable settlement shall be arrived at for cost incurred by Seller for Goods and materials in process not to exceed the aggregate committed quantity and/or price specified in this Purchase Order. Where cancellation is by reason of termination of a contract of the United States Government under which this Purchase Order has been placed, Buyer will pay the Seller at such times as Buyer is paid by the United States Government. Upon receipt of any notice of cancellation hereunder, Seller shall unless otherwise directed, immediately discontinue all work in progress and immediately cancel all order or subcontracts given or made pursuant to this Purchase Order. Exercise by Buyer of the rights of cancellation reserved in this Section 9 shall give rise to no liability on the part of the Buyer and shall not have the effect of waiving any claims or damages the Buyer might otherwise be entitled to. 

10. Intellectual Property Indemnity. The Seller hereby warrants that the Goods purchased hereunder and the sale or use of them will not infringe any patents, trademarks or copyrights. Unless otherwise specifically agreed to in writing, the Seller agrees to indemnify and hold harmless the Buyer, its successors, assigns, customers and users of its products against any loss damage, liability, costs and expenses which may be incurred as a result of or in defending or settling any suit, claim, judgment or demand involving infringement of any patents, trademarks or copyrights by the sale or use of the Goods purchased hereunder. The Seller agrees that it will, when so requested, assume the defense of the Buyer and/or its successors, assigns and customers and users of its products against any such suits, claims or demands. 

11. Other Indemnifications. Seller agrees to protect, defend, hold harmless and indemnify Buyer from and against any and all liability and expense resulting from: (i) any failure of Seller to comply with the terms and conditions of this Purchase Order; (ii) any alleged or claimed defect in the Goods purchased or work performed hereunder, whether latent or patent, including allegedly improper construction and design; or (iii) from the failure of such Goods and services to comply with specifications or with any express or implied warranties of Seller; or (iv) arising out of the alleged violation of any law, statute, ordinance, administrative order, rule or regulation connected with the manufacture or sale of such Goods or services including but not limited to the Federal Occupational Safety and Health Act of 1970, as amended. At Buyer's request Seller shall obtain and maintain during the life of this agreement at its expense, product liability insurance, with a vendor's endorsement, in such form and amount and from such company as may be approved by Buyer in writing. Satisfactory evidence of such insurance shall be submitted to Buyer upon request. For the purposes of this paragraph, "Goods" shall be deemed to include any packaging supplied by Seller. 

12. Assignment.  Seller may not assign, without the Buyer’s prior written consent, (i) this Purchase Order or any portion hereof; or (ii) any duty or right herein; or (iii) any claim arising hereunder.  This Purchase Order may not be assigned by operation of law or a merger or judicial sale or otherwise without the prior written consent of Buyer. Any unauthorized assignment or attempted assignment by Seller shall constitute a material breach of this agreement. This Purchase Order may be assigned by Buyer.  This Purchase Order shall inure to the benefit of and be binding upon the Buyer and Seller and their permitted successors and assigns.

13. Labor Disputes. 
(a) Whenever the Seller has knowledge that any actual or potential labor dispute is delaying or threatens to delay the timely performance of this Purchase Order, the Seller shall immediately give notice thereof, including all relevant information with respect thereto, to the Buyer. 

(b) The Seller agrees to insert the substance of this Section 13, including this paragraph (b) in any subcontract hereunder, except that each such subcontract shall provide that the notice and information mentioned above shall be given to its next higher tier subcontractor. 

14. Occupational Safety & Health Act. All items supplied under the terms of this Purchase Order shall be certified by Seller to be in compliance with requirements and standards of the Occupational Safety & Health Act of 1970. In addition, where required, hazardous material data sheets will be supplied on all applicable Goods and services. Failure of Buyer to contest a citation resulting from non-compliance of these items will not relieve the Seller of liability under this warranty. 

15. Department of Labor Compliance. In compliance with the Executive Order 13496 and Executive Orders 11246 and 11375, Equal Employment Opportunity and Section 503 of the Rehabilitation Act of 1973 and Section 402 of the Vietnam Veterans Readjustment Assistance Act of 1974, the acknowledgment is a certificate of compliance which includes a certification of nondiscrimination with regard to race, creed, color, national origin, sex or age. 

16. Chemical Substances.  By acceptance of this Purchase Order, Seller hereby certifies that all Goods and items supplied to Sunnen Products Co. by or through Seller or any of its subcontractors will comply with provisions of 40 CFR 82.100 and do not contain and were not manufactured using Class l or Class II substances as defined by 40 CFR 82.104.

17. Compliance with Laws. Seller, in the performance of this Purchase Order shall comply with the provisions of all applicable federal, state and local, regulations, rules and ordinances from which liability may accrue to Buyer from any violation thereof by Seller. 

18. Proprietary Rights. Any knowledge or information which Buyer shall have disclosed or may hereafter disclose to Seller, or which may hereafter be acquired by Seller, in the course of the performance of this agreement and in connection with the Goods, including but not limited to, designs, specifications, formulas and manufacturing information shall be deemed to be Buyer’s confidential and proprietary information and shall not be disclosed by Seller. 

19. Buyer-Owned Property. Unless Buyer and Seller otherwise agree in writing, the following provisions shall apply to any tools, tooling, patterns, equipment, materials or other properties or supplies used in the manufacture of Goods for Buyer or in the performance of this Purchase Order, that are either supplied to Seller by Buyer, or have been acquired by Seller and specifically paid for by Buyer. All such properties shall hereafter be referred to as Buyer-owned property. 

(a) Seller shall have the right to use Buyer-owned property without payment for usage as required in the performance of this Purchase Order or other work for Buyer, but shall not use Buyer-owned property in the performance of any other work without prior written approval of the Buyer. Title to all Buyer-owned property shall at all times remain with Buyer. Title to such property which is procured or manufactured by Seller for Buyer shall be fully vested in Buyer upon Buyer’s acceptance of the same. 

(b) Seller shall take necessary measures to preserve Buyer's title to Buyer-owned property, free of all encumbrances. Buyer retains the right, in addition to other rights provided by law, to enter Seller's premises and remove Buyer-owned property with or without a court order. 

(c) Seller shall, on written request of Buyer, properly pack and ship Buyer-owned property to such destination as designated by Buyer. 

(d) Seller shall, at its expense, perform all maintenance work, repairs and replacements necessary with respect to applicable Buyer-owned property so that such property remains suitable for the use intended. 

(e) The risk of loss or damage to all Buyer-owned property shall be left with Seller from the time that such property is delivered to Seller until that property is removed from Seller's place of business as directed by Buyer in writing. Proof of adequate insurance coverage on Buyer-owned property shall be provided to Buyer by Seller upon written request of Buyer. 

(f) Buyer shall not be liable for loss, damage, detention, or delay resulting from causes beyond its control with respect to any Buyer-owned property to be delivered to Seller by Buyer. 

(g) Seller shall assume and shall indemnity Buyer against any and all liability for damaged property or injury to, or death of any persons arising from, incidental to the presence of, or use of Buyer-owned property, whether such damage, injury, or death Is caused by defects in the property, negligence in the use thereof, or otherwise. 

(h) Seller shall, upon receipt of written request, provide Buyer with a current listing of Buyer-owned property in its or its subcontractor's possession, indicating complete descriptions, quantities, and property conditions. 

20. Remedies. No rights or remedies herein provided to Buyer shall be deemed exclusive of any other rights or remedies allowed by law. 
21. Lien Waivers.  Seller shall furnish to Buyer, within 5 days after Buyer’s request for the same, waivers by Seller and all other persons entitled to assert any lien rights in connection with the Goods and/or the performance of this Purchase Order.  Seller shall indemnify Buyer against all costs, loss, or liability incurred by Buyer as a result of any failure by Seller or any other person to comply with the provisions of this Section 21.

22. Waiver of Terms and Conditions.  The failure of Buyer in any one or more instances to insist upon performance of any terms or conditions contained herein, or to exercise any right or privilege hereunder, or the waiver by Buyer of any breach by Seller of these terms and conditions shall not be construed as a waiver of any such term, condition, right or privilege or any subsequent breach thereof, and the same shall continue and remain in full force and effect as if no failure or waiver had occurred.

23.  Governing Law. This Purchase Order and the acceptance of it shall be a contract made in the State of Missouri and governed by the laws thereof. 

24.  Jurisdiction and Venue.  Seller and Buyer agree that any dispute arising hereunder shall be subject to the exclusive jurisdiction of the State or Federal Courts in or for St. Louis County, Missouri.

25.  Costs.  The prevailing party in any litigation brought hereunder shall be entitled to recover its costs and expenses, including reasonable attorney’s fees, incurred in such litigation.

26.  Entire Agreement. These terms and conditions, any other special conditions contained in any schedules hereto or any specification or other documents delivered in connection herewith and specifically incorporated herein by reference constitute and represent the complete and entire agreement between Buyer and Seller and supersede all previous communications, either written or verbal with respect to the subject matter of this Purchase Order. 

All of Sunnen's products are subject to U.S. export controls and sanctions laws and regulations, even after the products are exported from the U.S. and title is transferred from Sunnen. These export control and sanctions regulations include: the U.S. International Traffic in Arms Regulations ("ITAR)" administered by the U.S. Department of State's Directorate of Defense Trade Controls ("DDTC"), U.S. Export Administration Regulations ("EAR") administered by the Bureau of Industry and Security ("BIS"), and the sanctions regulations administered by the Office of Foreign Assets Control ("OFAC") (collectively U.S. export control/sanctions laws"). 

Customer or Supplier agrees that it will comply with all U.S. export control/sanctions laws and will not export, re-export, transfer, sell or otherwise divert Company products, either in their original form or after being incorporated into other items:

(1) to any U.S. embargoed countries, which currently include the Crimea Region of Ukraine, Cuba, Iran, North Korea, Sudan and Syria.; or (2) to any “Prohibited End-User”, meaning any company, individual, or other party listed on OFAC's Specially Designated Nationals List, BIS's Entity List,  Denied Persons List, and Unverified List, DDTC's Debarred Persons List, or any other prohibited party included on the U.S. Consolidated Screening List found at https://www.export.gov/csl-search; or

(2) for an end-use related to: (a) the design, development, production, stockpiling or use of missiles or nuclear, chemical or biological weapons; (b) nuclear facilities not under IAEA safeguards; (c) missiles or unmanned aerial vehicles capable of weapons delivery; or (d) deepwater, Arctic offshore or shale oil or gas exploration or production in or offshore Russia.

Customer or Supplier further certify that they are not a Prohibited End-User, and are not owned or controlled by or acting for or on behalf of a Prohibited End-User. 

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