JBK Purchase Order Terms
& Conditions 2005
Equal Employment Opportunity – Seller will comply with
Presidential Executive Order No. 11246 Section 202 Paragraphs 1 through 7.
- CONTRACT.
This Purchase Order (“Order”) becomes a binding contract on the
terms set forth herein when accepted by Seller either by acknowledgment or
performance. Shipment of all or
any portion of the goods or work covered by this order shall be deemed
acceptance by Seller. The contract resulting from acceptance of this order
shall be construed according to the laws of the state of Ohio.
The Federal and State Courts of Ohio located respectively in Dayton,
Ohio and Greene County. Ohio
shall have exclusive jurisdiction over the parties to this order for all
controversies out of or in any way connected to this order.
The contract resulting from acceptance of this order is
non-assignable by the Seller without the prior written consent of the Buyer
- COMPLIANCE
WITH LAWS. Seller agrees and
warrants to Buyer that, in the performance hereof and in the sale, design,
production, labeling, marking and shipment of articles specified hereunder
that it has complied and will comply with any and all applicable laws,
statutes, rules, regulation, ordinances and orders of the United States or
any agency or of state or subdivision thereof.
- PAYMENT.
Upon the submission by Seller of proper invoices, Seller shall be
paid the prices stipulated in this order for goods delivered and accepted of
services rendered and accepted less adjustments for shortages, rejections,
Buyer’s claims or ortherwise as a specified in this order.
- INSOLVENCY.
Buyer may forthwith cancel the contract resulting from the acceptance
of this Order in the event of any of the following:
insolvency of the Seller, the appointment of a receiver or trustee
for Seller provided such appointment is not vacated within (30) days from
the date of such appointment, and the execution by Seller of an assignment
for the benefit of creditors.
- REMEDIES.
The remedies herein shall be cumulative, and additional to any other
or further remedies provided in law or equity.
No waiver of a breach of any provision of the contract by acceptance
of this order shall constitute a waiver of any other breach of such
provision.
- WARRANTY,
OPTION TO CANCEL. Sell warrants
to Buyer that all goods, materials, work and services furnished pursuant to
this Order will be merchantable and free from defect in design, material and
workmanship, will conform to specifications, samples and descriptions in the
Order or otherwise given to or by Buyer, will be suitable for any intended
use of which Seller has been advised or which may be reasonably inferred
from all circumstances, and that any services will be rendered in a
workmanlike manner and be of a quality and standard acceptable in the trade.
- TERMINATION.
(a) Buyer may terminate work under this order in whole or in part at
any time by written or telegraphic notice to the Seller.
Such notice shall state the extent and effective date of such
termination, and upon receipt thereof the Seller will, as and to the extent
directed by the Buyer, stop work under this Order and the placement of
further orders or sub-contracts hereunder, terminate work under orders and
sub-contracts outstanding hereunder, and take any necessary action to
protect property in the seller’s possession in which the Buyer has or may
acquire an interest. 9b0 If the parties cannot by negotiation agree within a
reasonable time upon the amount of fair compensation to the Seller for such
termination, the Buyer, in addition to making prompt payment of amounts due
for articles delivered or services rendered prior to the effective date of
termination, will pay to the Seller the following amounts without
duplication.
(1)
The contract price of all articles or services, which have been completed
in
accordance with this order and not previously paid for.
(2)
The actual costs incurred by the Seller which are properly allocable or
apportionable under recognized commercial accounting practices to the terminated
portion of this order, including the cost of discharging liabilities which are
so allocable and apportionable.
(3)
The reasonable costs of the Seller in making settlement hereunder and in
protecting the property in which the Buyer has or may acquire an interest.
Payments made under this paragraph (b), exclusive of payments under
sub-paragraph (3) shall not exceed the aggregate price specified in this order,
less payments otherwise made or to be made.
(c) With the consent of the Buyer,
the Seller may retain, at an agreed price, or sell, at an approved price, any
completed articles or any articles, materials, work in process or other things,
the cost of which is allocable or apportionable to this order under paragraph
(b) (2) above, and will credit or pay the amounts so agreed or received as the
Buyer directs. As directed by the
Buyer, the Seller will transfer title to and make delivery of any such articles,
materials, work.
- PACKAGING
AND SHIPPING. (a) All goods are
to be suitably packed and/or otherwise prepared for the mode of shipment
specified in the Order so as to prevent damage in transit: (b) F.O.B. point
and cash discount terms must be shown on all invoices; (c) Transportation
must be prepaid on all shipments to which a delivered price applies; (d)
Charges for prepaid transportation must be substantiated by attaching the
original paid freight bills to the invoice; (e) Seller shall properly mark
each package with buyer’s Order number.
Purchase Order number and package numbers shall be shown on packing
slip, bills of lading and invoices; (f)
No charges for packing, package or drayage will be accepted except on
express agreement to such charges; (g) Drafts against the Buyer will not be
honored, nor C.O.D. shipments accepted except by express agreement to that
effect.
The above instructions are subject to the terms on
the face hereof and may be changed at any time upon notice to Seller.
- AUDIT.
Seller’s plant or books (or such part thereof as may be used in the
performance of this contract) shall at all times be subject to inspection
and audit.
- ADVERTISING.
Seller shall not without first obtaining the written consent of
Buyer, in any manner, advertise or publish the fact that Seller had
contracted to furnish Buyer the material herein ordered, and for failure to
observe this provision, Buyer shall have the right to terminate the contract
resulting from the acceptance of this order without any obligations to
accept deliveries after the date of termination or make further payment
except for completed articles delivered prior to termination.
- TOOLS.
Unless otherwise herein agreed, Seller at its own expense shall
furnish, keep in good condition and replace when necessary all dies, tools,
gauges, fixtures and patterns necessary for the production of the material
ordered. The cost of changes in
the aforementioned items necessary to effect design or specification changes
ordered by Buyer shall be paid for by Buyer.
Buyer has the option. However, to take possession of and title to any
dies, tools, gauges, fixtures and patterns that are special for the
production of the material covered by this order and shall pay to Seller the
unamortized.
- CHANGE
ORDERS. Buyer reserves the
right at any time to make changes in drawings and specifications as to any
material and on any work covered by this order.
Buyer may also change the delivery schedule set forth hereon.
If such changes cause a material increase or decrease in Seller’s
cost or time for performance of this order an equitable adjustment in the
price or time for performance will be made and this order will be modified
in writing accordingly, provided any claim for adjustment must be made by
the Seller within thirty (30) days after the date this change is ordered.
- INSPECTION
AT SOURCE. If it is indicated
elsewhere on this Order that supplies to be furnished hereunder shall be
subject to inspection by Buyer and/or Government inspectors upon the
premises of the Seller, Seller, without additional cost, shall provide all
reasonable facilities and assistance for the safety and convenience of such
inspectors. At the time of
inspections Seller shall make available to the inspectors copies of all
drawings, specifications and process, preservation and packaging data
applicable to the articles ordered herein.
Such inspection shall be deemed as preliminary only and all articles
ordered hereunder shall be subject to final inspection and acceptance in
Buyer’s plant.
- CERTIFICATION.
Certification of material (chemical and physical composition) and
specifications, as referenced, are required and where applicable, statement
that papers are on file showing certified sources were used to accomplish
special processes. Quantities
shown on certification must correspond with quantities shown on packing
slips.
- ANALYSIS.
Three (3) copies of certified chemical and physical analysis
required. Original source of
above material must be specified on each heat.
One copy of the above analysis must accompany shipment.
- INSPECTION.
All material and/or equipment shall be received subject to Buyer’s
inspection and right of rejection. If
material and/or equipment is found to be defective or not in conformity with
the requirements of this Order, Buyer shall have the right, as it’s sole
discretion, to reject the same or to require Seller to replace defective or
non-confirming material and/or equipment with satisfactory goods.
If Buyer rejects the material and/or equipment or if Seller fails,
when requested by Buyer, to proceed promptly with replacement or correction
of defective, or non-confirming goods, Buyer may terminate this Order for
default or may cover or correct the goods and, in any event, may charge
Seller with the cost of all damages thereby.
Rejection of defective or non-conforming material and/or equipment
will be held by Buyer for Seller’s instruction at Seller’s risk and, if
Seller so directs, shall be returned to Seller at Seller’s expense.
Unless Buyer notifies Seller to the contrary, no material and/or
equipment rejected or returned to Seller as defective or non-conforming
shall be replaced without a new order.
Payment for material and/or equipment on this Order prior to
inspection shall not constitute acceptance thereof by Buyer.
- DELIVERY
SCHEDULES. Deliveries are to be
made both in quantities and at times set forth in this order or as specified
by the Buyer. Buyer will have
no liability for payment of material or items delivered to Buyer which are
in excess of the quantities specified in delivery schedule.
Buyer may from time to time change delivery schedules or direct
temporary suspension of scheduled shipments.
- EXCUSABLE
DELAYS. Seller shall not be
liable for delays or defaults in deliveries due to causes beyond its control
and without its fault or negligences. If
at any time Seller has reason to believe that deliveries will not be made as
scheduled, written notice setting forth the cause of the anticipated delay
will be given immediately to Buyer.
- INSPECTION.
All material shall be received subject to Buyer’s inspection, if
material is found to be defective or not in conformity with the requirements
of this Order, Buyer shall have the right to reject same or require that
said material be replaced promptly with satisfactory material.
If Buyer rejects the material or if Seller when requested by Buyer
fails to proceed promptly with replacement or correction thereof, Buyer may
terminate this order for default or may replace or correct such material and
in either event may charge Seller the cost of damages occasioned thereby.
Rejection of defective material not in accordance with Buyer’s
specifications will be held for Seller’s instructions and at Seller’s
risk, and if Seller so directs, will be returned at Seller’s expense.
Unless Buyer at its option notifies Seller to the contrary, no
material returned as defective shall be replaced without a new order.
Payment for material on this order prior to inspection shall not
constitute acceptance.
- BUYERS
DESIGN. Seller agrees that it
will keep confidential and will not disclose to any other party the features
of any equipment, tools, patterns, designs, drawings, engineering data or
other technical or proprietary information furnished by the Buyer and that
it will use such items and or information only in the production of goods or
the rendering of services under this Order or other orders from Buyer.
Seller shall return all such items and/or information (including all
copies thereof) or make such other disposition thereof as may be directed by
Buyer.
- DRAWINGS
AND SECRECY AGREEMENT. Drawings
may be retained by the Seller for future reference but only in connection
with Buyer’s orders. Seller
agrees to be responsible in matters within its control for the safe guarding
of all secret, confidential or restricted matters disclosed or developed in
the work performed in connection with this Purchase Order, and Seller agrees
not to permit aliens or other unauthorized persons to have access to any
plans or specifications used in this connection without first obtaining the
written consent of the appropriate Department of the Armed Forces.
- INDEMNITY.
(a) Patent. Seller
agrees to defend, indemnity and hold harmless Buyer and its directors, officers,
employees and agents, against any and all liabilities, losses, damages,
penalties, causes of action, costs and expenses, including but not limited to
attorney’s fees, for any asserted trademark, copyright or patent infringement
or claim thereof arising from the manufacture, use or sale of any goods
delivered or services rendered as a result of the order.
(b) Premises. In the
event Seller, its employees, agents or subcontractors enter premises owned or
occupied by or under the control of Buyer, for purposes of delivery, pick-up,
loading, unloading, or otherwise in the performance of this order, Seller agrees
that it will defend, indemnity and hold harmless Buyer and its directors,
officers, employees and agents, against any and all liabilities, losses,
damages, penalties, claims, causes of action, costs and expenses, including but
not limited to attorney’s fees, by reason of property damage or personal
injury to any party and of whatever nature or kind arising out of, as a result
of, or in connection with such performances occasioned in whole or in part by
the actions or omissions of Seller, its employees, agents or subcontractors.
Seller agrees that it and its agents and subcontractors will maintain
public liability and property insurance covering the obligations set forth
above, will maintain proper workmen’s compensation insurance and/or coverage
of all employees delivering or performing any order, and upon demand will
furnish Buyer evidence thereof, all in form, companies and amounts from time to
time reasonably satisfactory to buyer. Seller
will keep the premises of Buyer and its customers free of liens of any sort
arising out of or relating to the order.
(c ) Product.
Seller agrees to defend, indemnity and hold harmless Buyer and its
directors, officers, employees and agents, against any and all liabilities,
losses, damages, penalties, claims, causes of action, costs and expenses,
including but not limited to attorney’s fees arising out of, related to, or a
result of any claim or allegation that goods sold or services rendered by Seller
to Buyer pursuant to this Order are the cause or potential cause of any damage
or injury whatsoever to any party or person, including but not limited to claims
of breach of warranty or a defect of any sort or kind.
(d) Design, Drawing.
Seller agrees to defend, indemnity and hold harmless Buyer and its
directors, officers, employees and agents against any and all liabilities,
losses, damages, penalties, cause of action, costs and expenses, including but
not limited to attorney’s fees arising out of or related to any breach or
violation by Sellers of its covenants under paragraphs 22 and 23 of this Order.
- EQUAL
AND AFFIRMATIVE ACTION ACTION.
The Equal Opportunity Clause (if this contract exceeds or will exceed
$10,000)
During the performance of this
contract, Contractor agrees to be bound by the following
provisions as contained in Section 202 of Executive Order 11246, as
amended to wit.
(1)
The Contractor will not discriminate against any employee or applicant
for employment because of race, color, religion, sex, or national origin.
The Contractor will take affirmative action to insure that applicants are
employed and that employees are treated during employment without regard to
their race, color, religion, sex, or national origin.
Such action shall include, but not be limited to the following: employment, upgrading, demotion, or transfer, recruitment
advertising, layoff or termination, rate of pay or other forms of compensation,
and selection for training, including apprenticeship. The Contractor agrees to post in conspicuous places,
available to employees and applicants for employment, notices to be provided by
the contracting officer setting forth the provisions of this nondiscrimination
clause.
(2)
The Contractor will, in all solicitations or advertisements for employees
placed by or on behalf of the Contractor, state that all qualified applicants
will receive consideration for employment without regard to race, color,
religion, sex or national origin.
(3)
The Contractor will send to each labor union or representative of workers
with which he has a collective bargaining agreement or other contract or
understanding, a notice to be provided by the agency contracting officer,
advising the labor union or workers representative of the Contractor’s
commitments under Section 202 of Executive Order No. 11246 of September 24,
1965, and shall post copies of the notice in conspicuous places available to
employees and applicants for employment.
(4)
The Contractor will comply with all provisions of Executive Order NO.
11246 of September, 1965, and of the rules, regulations, and orders of the
Secretary of Labor.
(5)
The Contractor will furnish all information and reports required by
Executive Order No. 11246 of September 24, 1965, and by the rules, regulations,
and orders of the Secretary of Labor, or pursuant thereto and will permit access
to his books, records and accounts by the contracting agency and the Secretary
of Labor for purposes of investigation to ascertain compliance with such rules,
regulations and orders.
(6)
In the event of the Contractor’s noncompliance with the
nondiscrimination clauses of this contract, or with any of such rules,
regulations, or orders, this contract may be cancelled, terminated, or suspended
in whole or part and the Contractor may be declared ineligible for further
Government contracts in accordance with procedures authorized by Executive Order
No. 11246 of September 24, 1965, and such other sanctions may be imposed and
remedies invoked as provided in Executive Order No. 11246 of September 24, 1965,
or by rule, regulations, or order of the Secretary of Labor, or as otherwise
provided by law.
(7)
The Contractor will include the provisions of Paragraphs (1) through (7)
in every subcontract or purchase order unless exempted by rules, regulations, or
orders of the Secretary of Labor issued pursuant to Sections 204 of Executive
Order No. 11246 of September 24, 1965, so that such provisions will be binding
upon each subcontractor of vendor. The Contractor will take such action with respect to any
subcontract or purchase order as the contracting agency may direct as a means of
enforcing such provisions including sanctions for nonconformance.
Provided, however, that in event the Contractor becomes involved in or is
threatened with litigation with a subcontractor or vendor as a result of such
direction by the contracting agency, the Contractor may request the United
States to enter into such litigation to protect the interest of the United
States.
II Veterans Employment Clause (if this contract is
for $10,000 or more)
Contractor agrees to abide by
and comply with the provisions of the Affirmative Action
Clause, Section 60-250.4 of 41 CFR unless exempted as therein provided
and which provisions are incorporated herein by reference to the same extent as
through set forth herein in full.
III
Executive Order 11758 – Employment of Handicapped Persons (if this
contract is for $2500
Or more)
Contractor agrees that it will abide by and comply with the provisions of
the Affirmative
Action Clause, Section 60-741.4 of 21 CFR (41 Fed. Reg. 16150, April 16,
1976).
Affirmative Action for Handicapped Workers (which provisions) are
incorporated herein
By reference to the same extent as though set forth in full.
- INSPECTION
SYSTEM REQUIREMENTS. MIL-I-45206A
Applies to this Order.
