The following terms and conditions apply to the sale of the goods or services described on the face and/or exhibits to, this purchase order (“Purchase Order”) to the Detroit Zoological Society (the “Buyer”) by the seller (“Seller”).
1. Offer, Acceptance and Modification. This Purchase Order is an offer to Seller by Buyer for the purchase and sale of goods or services identified on the face and/or the exhibits to this Purchase Order. Notwithstanding any other provision of this Purchase Order, Buyer reserves the right to revoke this Purchase Order at any time prior to its receipt of notice of Seller’s acceptance. Seller’s acceptance of this Purchase Order and its terms and conditions shall occur on the first expression of acceptance by Seller, including Seller’s (i) signed acknowledgement on this Purchase Order; (ii) other written acceptance, (iii) commencement of work on the goods or services subject to this Purchase Order, (iv) shipment of the goods identified on this Purchase Order, (v) failure to object to this Purchase Order, in writing, within ten (10) days of receipt, or (vi) conduct that indicates Seller’s acceptance. The terms and conditions set forth in this Purchase Order, constitute the entire understanding between the parties regarding the subject matter of this Purchase Order, supersede any prior discussions, negotiations, agreements and understandings and are binding on Buyer and Seller except to the extent modified pursuant to a writing signed by an authorized representative of Buyer after the date that this Purchase Order is accepted by Seller. For purposes of this Purchase Order, an authorized representative of Buyer must either be an employee of Buyer holding the title of purchasing agent or an executive officer of Buyer. Unless incorporated by reference in this Purchase Order, all terms and conditions contained in any other document related to the goods or services identified on the face of this Purchase Order or its exhibits, including but not limited to any prior proposal or quotation, or any subsequent acknowledgement of this Purchase Order or invoice, which are different from or in addition to the terms and conditions of this Purchase Order are hereby rejected by Buyer and shall not bind Buyer, whether or not they would materially alter this Purchase Order. Buyer’s acknowledgement or payment of any invoice referencing, containing or related to any conflicting or additional terms shall not constitute an acceptance of such additional or conflicting terms.
2. Exhibits. The exhibits attached to this Purchase Order by Buyer, if any, supplement the terms and conditions stated in this Purchase Order and are incorporated by reference as if fully stated herein. In the event of a conflict between the terms and conditions stated herein and those stated in any exhibit to this Purchase Order, the terms and conditions of the exhibit shall apply.
3. Release. If delivery dates are not specified on the face or in the exhibits to this Purchase Order, Seller shall procure materials and fabricate, assemble, and deliver goods or provide services only when such action is authorized and only in the quantities authorized pursuant to written releases or requests issued to Seller by Buyer. In case of over shipment of goods, Buyer may, at its option (a) reject the excess goods and, without obtaining Seller’s instructions or consent, return such excess at Seller’s sole cost and expense or (b) retain the excess for future use and charge Seller for all additional expenses, losses or costs related to the excess goods, including storage costs. Buyer, from time to time and with reasonable notice, may change or temporarily suspend delivery schedules specified in this Purchase Order or releases.
4. Price. The price for each item covered by the Purchase Order shall be the lower of the price shown on the face of this Purchase Order (or the exhibits to this Purchase Order, if stated therein) or the lowest price offered for the same items in comparable quantities to any of Seller’s customers. In no case shall the price be higher than last quoted or charged to Buyer unless agreed in writing by Buyer.
5. Packaging. Marking and Shipping. (a) All goods shall be properly packaged, labeled, marked and shipped in accordance with the requirements of Buyer’s written standards provided to Seller, the Uniform Freight Classification or the National Motor Freight Classification (whichever is applicable) and of this Purchase Order and in a manner which shall permit the securing of the lowest transportation rates and protection of the goods from damage or loss. Seller shall reimburse Buyer for all expenses, losses or costs incurred by Buyer as a result of improper packaging, labeling, marking, routing or shipping.
(b) If Buyer is responsible for arranging transportation, Seller shall comply with routing instructions issued by Buyer and Seller shall advise Buyer regarding packing, marking, routing and shipping that will enable Buyer to secure the most economical transportation rates.
(c) Unless otherwise provided in this Purchase Order, Seller shall make no separate charges for containers, crating, boxing, bundling, dunnage, drayage, storage or freight.
(d) Seller shall be responsible for any loss, damage or injury that results from or occurs during shipment of goods.
6. Delivery. Time is of the essence. The parties acknowledge that late or partial delivery of any installment impairs the value of the whole contract. Upon the occurrence or threatened occurrence of late or partial delivery, SELLER MUST IMMEDIATELY NOTIFY BUYER PURSUANT TO SECTION 13(b) OF THIS PURCHASE ORDER, and Buyer may, without waiving any other rights of Buyer, approve a revised delivery schedule and require delivery at Seller’s sole cost and expense by a more expeditious method of transportation than those specified in this Purchase Order. Should Buyer agree to accept partial or late deliveries in lieu of a single or timely delivery, Seller shall pay all additional expenses, losses or costs incurred because of the failure to accomplish a timely single delivery. The Seller is solely responsible for the delivery of all goods and services DDP (as defined in INCOTERMS 2010) to the ship-to destination specified of the face of or in the Exhibits to this Purchase Order, including but not limited to all carriage, delivery costs, insurance, risk of loss, licenses, security, customs formalities/documentation, duties, tariffs, transportation/delivery documentation, packing and marking. Seller assumes (i) all risk of loss or damage to any goods until delivery to Buyer at the destination specified of the face of or in the Exhibits to this Purchase Order; and (ii) all risk of loss or damage to any goods rejected by Buyer or as to which Buyer has revoked is acceptance, from the time of such rejection or revocation. The term “FOB” or “FOB Destination” on the face of this Purchase does not vary the foregoing provisions of this paragraph.
7. Inspection. If any of the goods or services furnished under this Purchase Order are found at any time to be defective in material or workmanship or otherwise not in conformity with the requirements of this Purchase Order, Buyer, in addition to any other rights which it may have under all applicable warranties or otherwise, may at its discretion, correct or have corrected the nonconformity at Seller’s sole cost and expense, reject goods and/or cancel any order. In such an event, Buyer may return such goods at Seller’s sole cost and expense and Seller shall reimburse Buyer for all other reasonable expenses, losses or costs, which result from rejection or correction.
8. Warranty. Seller warrants that all goods and services delivered under this Purchase Order (a) shall be free from defects in material, workmanship and design except to the extent such design was furnished by Buyer; (b) shall comply with all quality control standards, content, specifications, drawings, samples or other descriptions furnished or approved by Buyer; and (c) shall be merchantable and fit for their intended use by Buyer. Seller shall reimburse all damages or costs incurred by Buyer or its affiliates as a result of Seller’s breach of warranty. All warranties shall run to Buyer, Buyer’s customers and the users of the goods or services provided under this Purchase Order.
9. Proprietary Rights. (a) Seller warrants that the sale or use of any goods and services delivered under this Purchase Order, (i) alone, (ii) in combination by reason of their content, design or structure or (iii) in combination with Seller’s specifications or recommendations, will not infringe any United States or foreign patents, copyrights, mask works, industrial design rights, or other proprietary rights of anyone, and covenants that Seller, at Seller’s sole cost and expense, upon demand by Buyer, will investigate and deal with every claim that may be made and defend every suit, action or proceeding that may be brought against Buyer, Buyer’s agents, officers, employees or against those using or selling any product of Buyer for any such alleged infringement and will pay all costs, damages, expenses (including, without limitation, legal, accounting and consulting fees) and judgments that Buyer or its agents, officers, employees or affiliates and those using or selling Buyer’s products may sustain by reason of any such claim, suit, action or proceeding. Seller shall be obligated hereunder without liability by Buyer if Seller or its supplier or contractor was involved in the design of the goods or services or any portion thereof even though Buyer furnished specification to Seller.
(b) Seller hereby grants to Buyer and its affiliates a non-exclusive royalty-free irrevocable world-wide license to repair and rebuild and to have repaired and rebuilt any goods purchased by Buyer under this Purchase Order.
(c) Seller shall neither assert nor transfer to another a right to assert against Buyer or its affiliates or anyone to whom Buyer sells its products or their customers any copyright of Seller that is applicable to any works of authorship furnished to Buyer or any of Buyer’s facilities in the course of Seller’s activity under or in connection with this Purchase Order.
(d) All technical information disclosed by Seller to Buyer in connection with the goods or services delivered under or pursuant to this Purchase Order has been and will be disclosed on a non-confidential basis.
(e) Seller shall not use in any manner any trademarks, trade names, trade dress or other marks owned or controlled by Buyer and/or its affiliates or which Buyer is licensed to use except to apply, use or affix them to goods delivered by Seller under this Purchase Order at such place and in such manner as designated in writing by Buyer.
10. Subcontracting. Seller may subcontract part or all of the manufacture or supply of goods or performance of services under this Purchase Order only upon obtaining Buyer’s prior written approval; provided, however, that Seller shall continue to be responsible to Buyer for all obligations of Seller under this Purchase Order.
11. Buyer’s Property. Unless otherwise provided in writing between Buyer and Seller, all supplies, materials, facilities, tools, jigs, dies, fixtures, patterns, equipment, specifications, drawings, samples or other materials furnished to Seller by Buyer to perform this Purchase Order (collectively, “Buyer Property”), or for which Seller has been reimbursed by Buyer, shall remain the property of Buyer, and Seller shall bear the risk of loss, damage and injury
regarding such property until its return to Buyer, normal wear and tear excepted. Buyer Property shall at all times be properly stored and maintained by Seller, shall be deemed the personal property of Buyer, shall be conspicuously marked “property of the Detroit Zoological Society” by Seller, shall not be commingled with the property of Seller or with that of a third party and shall not be moved from Seller’s premises without Buyer’s prior written approval. Seller shall bear and pay any and all taxes arising out of possession or use of Buyer Property by Seller. Upon Buyer’s request at any time (including during an excusable delay), Seller shall immediately deliver the Buyer Property, packed and marked in accordance with the requirements of Buyer and the carriers selected by Buyer to transport such property, to Buyer either (a) FOB Buyer’s facilities or (b) at any other location designated by Buyer in which event Buyer shall pay to Seller the cost of delivering such Buyer Property to such location. Buyer shall have the right to enter onto Seller’s premises at any reasonable time to inspect the Buyer Property and Seller’s records with respect thereto or to take possession of and remove the Buyer Property. Seller shall execute any such financing statements or other informational filings as Buyer may reasonably request to protect Buyer’s title to the Buyer Property. Seller shall use such property only in connection with this Purchase Order, and shall not use, or allow to be used, such property or any goods (including rejected goods) in any manner whatsoever for the benefit of itself or any other customer or third party.
12. Termination. (a) Notwithstanding anything in this Purchase Order to the contrary, this Purchase Order may be terminated by Buyer at its option, in whole or in part, at any time and for any reason by delivery of a written notice of termination to Seller (“Termination Notice”).
(b) After receipt of a Termination Notice, Seller shall, unless otherwise directed by Buyer: (1) Immediately terminate all work under this Purchase Order; (2) terminate all of its orders and contracts relating to the performance of the work terminated by the notice of termination; (3) settle all claims by its suppliers or contractors for actual costs rendered unrecoverable by such termination; (4) transfer title and deliver to Buyer any deliverable finished work, any deliverable work in process and the parts and materials, if any, which Seller produced or acquired in accordance with this Purchase Order (but not in excess of amounts authorized by Buyer), which conform to the requirements of this Purchase Order and which Seller cannot reasonably use in producing goods for itself or for others; and (5) take all action necessary to protect Buyer Property in Seller’s possession.
(c) IN NO EVENT SHALL SELLER BE ENTITLED TO NOR SHALL BUYER BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, COSTS OF PREPARING CLAIMS, COSTS OF TOOLING OR EQUIPMENT, OR ANY OTHER EXPENSES OR DAMAGES ARISING OUT OF THIS PURCHASE ORDER OR WITH RESPECT TO THE TERMINATE GOODS OR SERVICES.
13. Delay. (a) Either Buyer or Seller may suspend performance under this Purchase Order during an excusable delay, which shall mean any delay not occasioned by the fault or negligence of the delayed party and which results from fire, flood, acts of God or public enemy, restrictions, prohibitions or allocations imposed by governmental authority, embargoes or strikes.
(b) If at any time Seller has reason to believe the deliveries of any goods or services will not be made as scheduled, Seller shall immediately provide to Buyer notice setting forth the cause and the length of the anticipated delay, at which time Buyer may (1) terminate this Purchase Order or applicable release, and/or (2) acquire possession of all finished goods, work in process and materials or parts produced or acquired for the work hereunder, and Seller shall deliver such articles to Buyer, at Buyer’s option, as required under this Purchase Order for finished goods or freight collect to a location designated by Buyer. Excepting delays under Section 13(a) above, Buyer’s expenses which result from delays in delivery shall be reimbursed by the Seller or deducted from Buyer’s obligations under Seller’s invoice.
14. Payment. Payment due dates, including discount periods, will be computed based on the later of the date of delivery of all products or services and the date Buyer receives a correct invoice. If the price of any product of service under this Purchase Order or any amendment is non-fixed (i.e., based upon Seller’s time and/or material, or based in whole or in part on an index or other benchmark approved in writing by Buyer), Buyer shall, as applicable, be provided with the most recent publication of any applicable approved index or other benchmark and shall have access to Seller’s premises and records during usual business hours, prior or subsequent to payment, to inspect work performed and verify Buyer’s payment obligation. Seller shall retain all relevant records for a period of two years after final payment from Buyer.
15. Indemnity and Insurance. (a) Seller’s acts or omissions, or those of Seller’s employees or subcontractors, shall not create any liability for Buyer. Excepting only claims arising from the sole negligence of Buyer, Seller agrees to defend, indemnify and hold harmless Buyer and its officers, agents, employees and affiliates (the “Buyer Parties”) from any and all claims, expenses, losses or damages (including reasonable defense costs, which include, without limitation, attorney fees at pre-trial, trial and appellate levels) due to any suit or claim caused by, relating to, arising out of or resulting from, in whole or in part, directly or indirectly, Seller’s acts or omissions including in the performance of this Purchase Order or in the conduct of Seller’s business or any liability imputed to or judged against any of the Buyer Parties as the result of Seller’s acts or omissions and from any and all claims and losses occurring or resulting to any person, firm or corporation who may be injured or damaged by Seller, including in the performance of this Purchase Order and the delivery of goods or performance of services under this Purchase Order.
(b) Upon the request of Buyer, Seller shall furnish to Buyer a certificate of insurance showing that Seller carries public liability, products liability, property damage and workers’ compensation insurance in amounts and by insurers acceptable to Buyer. All such policies of insurance shall contain appropriate endorsements naming Buyer as an additional insured, extending coverage thereof to liability expressly assumed by Seller and requiring the insurer to give Buyer 30 day’s prior written notice of any cancellation or material change of coverage.
16. Sales Tax Exemption. Unless otherwise noted on the face of this Purchase Order, the goods and services specified herein are not subject to state or municipal sales, use or excise taxes.
17. Changes. Buyer at any time, by written revised Purchase Order, may make changes in any one or more of: (a) quantity, (b) specification, drawings, samples or other descriptions, (c) processing, (d) methods of packaging or shipment, (e) place of delivery or (f) required inventory levels. If any such change causes an increase or decrease in the cost of performing or in the time required for performance of this Purchase Order, an equitable adjustment shall be made, as applicable, to pricing and the delivery schedule of this Purchase Order and this Purchase Order shall be modified in writing accordingly.
18. Compliance with Laws. Seller represents and warrants to Buyer that all goods and services provided by Seller under this Purchase Order shall comply with all applicable international, foreign, federal, state and local laws, orders and regulations. This Purchase Order incorporates by reference all the clauses required by the provisions of said laws, orders and regulations.
19. Assignment. Buyer is issuing this Purchase Order in reliance upon Seller’s specific personal qualities (including ability, expertise, skill, trust and experience) and the rights and obligations under this Purchase Order shall not be assigned or delegated by Seller except as otherwise provided for in Section 10; provided, however, that Seller may assign rights to receive payment under this Purchase Order if Seller provides written notice to Buyer not later than 10 days prior to such assignment.
20. Confidentiality. All information furnished or disclosed to Seller by Buyer in connection with this Purchase Order which is identified as confidential is received in confidence, shall remain the property of Buyer and shall not be disclosed to any third party without Buyer’s written consent. Seller shall not use any such information for any purpose other than to perform this Purchase Order. If requested, Seller shall execute Buyer’s Non Disclosure Agreement before receipt of any such confidential information. Seller will return all such confidential information to Buyer upon completion by Seller of its obligations hereunder, upon demand. The obligations of this paragraph shall survive expiration or termination of this Purchase Order.
21. Waiver. No breach of this Purchase Order shall be deemed waived unless such waiver shall be in writing duly executed by the waiving party. No waiver of any breach of this Purchase Order shall be construed to constitute a waiver of any other breach of any provision of this Purchase Order. Failure to give notice of any breach of warranty shall not discharge liability for such breach. Failure to furnish required documents shall not constitute a waiver of the requirements for such documents.
22. Applicable Law. This Purchase Order shall be construed and governed according to the laws of the State of Michigan. The parties irrevocable submit to the exclusive jurisdiction and venue of the United States Federal District Court for the Eastern District of Michigan and the Michigan State Courts having jurisdiction over Oakland County, Michigan. The parties stipulate that such venues are convenient.
23. Further Assurances. Each party, without further consideration, shall perform in good faith such other acts, execute and deliver such other documents, and take such other action as may be reasonably required by the parties to carry out the purpose or subject matter of this Purchase Order.
24. Severability. If any provision of this Purchase Order shall be held by a court of competent jurisdiction to be invalid, illegal or unenforceable, such provision shall be modified so as to be enforceable to the fullest extent permitted by applicable law, and the validity, legality and enforceability of the remaining provisions of this Purchase Order shall not in any way be affected or impaired thereby.
25. Successors and Assigns. This Purchase Order and these standard terms and conditions shall inure to the benefit of and be binding upon the parties and their respective successors and assigns; provided, however, that
Seller may not transfer, sell, assign, pledge or encumber any of its rights, interests, or obligations, except as provided for in Sections 10 and 19.