1. Acceptance. This Purchase Order expressly limits acceptance to the terms and conditions contained herein. Batchelor & Kimball, Inc. (“Buyer”) expressly rejects any and all terms and conditions presented, advanced or supplied by Seller. Neither the Purchase Order nor these terms and conditions may be modified without Buyer’s written consent. Unless otherwise mutually agreed by the parties in writing, any initiation of performance or actions taken towards delivery (the “Work”) of materials, equipment or services (the “Goods”) shall constitute Seller’s acceptance of these purchase order terms and conditions.
2. Price, Taxes and Payment. The price set out in this Purchase Order, unless otherwise expressly stated, includes all costs of packing, packaging, loading and shipping. Seller agrees to set out in its invoice all taxes payable or collectible by Seller as the result of this transaction otherwise payable by Buyer and not subject to exemption or resale certificates. Payment for the Goods covered by this Purchase Order, or installments thereof, is due to Seller per payment terms indicated on this Purchase Order, if terms are not stated on the Purchase Order, the standard terms Between Batchelor & Kimball and the Seller or Seller’s representative shall govern.
3. Delivery and Inspection. Delivery of the Goods covered by this Purchase Order is to be made as set out herein or as directed by Buyer. If Seller fails to make such deliveries, Buyer may, without waiving its other rights and remedies, direct expedited production, procurement and/or shipping by Buyer with all costs of such being borne by Seller; or, Buyer may terminate this Purchase Order or any portion of it. Shipment of the Goods is at Seller’s risk with title passing FOB Destination. Buyer may inspect and test the Goods before or within a reasonable time after delivery. The Goods shall not be deemed accepted until after final inspection. Buyer’s inspection or failure to inspect or payment for the Goods shall not impair its right to reject nonconforming goods, or to avail itself of any other remedies to which it may be entitled, notwithstanding its knowledge of the nonconformity, its substantiality or the ease of its discovery.
4. Seller Warranties. Seller warrants that all Goods (including replacement goods) are new, free from defects in material and workmanship, are in accordance with the Contract Documents, specifications, drawings and any samples, comply with all applicable laws, regulations and requirements, are merchantable, suitable for their intended use, and to the extent they are not manufactured pursuant to detailed designs furnished by Buyer, free from defects in design. All services provided under this Purchase Order are to be performed in the highest professional and workmanlike manner, consistent with the best industry practices. The period of this warranty shall be 12 months beginning the latter of delivery, inspection, installation, acceptance by Buyer or its customer, if any, substantial completion of any project in which goods are incorporated, or such longer period if offered by Seller or its suppliers or set out in Contract Documents.
5. Changes. Seller agrees that Buyer may make changes to the scope of the Goods by written change order, including ,but not limited to changes adding or decreasing quantities ordered; changes to the specifications and/or drawings; and, changes to the schedule, time and place of delivery. If any such changes affect the amount due, or the time of performance required, Seller shall give written notice to Buyer of its claim within 5 days from the date when the change order is issued by Buyer. If such written notice is not given, Seller agrees that its claim is waived. All terms and conditions are subject to change at any time without notice.
6. Indemnity and Insurance. Seller agrees to indemnify, defend and hold Buyer, its officers, employees, agents, contractors, affiliates and customers harmless from any and all costs, losses, expenses, damages, claims, suits or any liability whatsoever, including attorney and professional fees, arising in whole or in part out of the acts or omissions of Seller, its agents, employees, subcontractors or vendors causing in whole or in part any injury (including death) to any persons, or any damage to any property, (and claims by any third party for patent or copyright infringement), except to the extent that such injury or damage is due directly and solely to Buyer’s gross negligence. Seller’s obligations under this paragraph shall not be limited in any way as the result of coverage or limits of liability provided by any insurance carrier, including but not limited to providers of general liability and worker compensation insurance. Seller agrees to carry Worker Compensation insurance complying with the law(s) of the State(s) in which it operates and primary and noncontributory Comprehensive General Liability (CGL) insurance providing coverage for bodily injury and property damage with limits of not less than $2,000,000.00 per occurrence or such other coverages and limits contained in incorporated Contract Documents. The CGL policy shall be endorsed to name Buyer and its customer, if any, as an additional insured and shall contain a waiver of subrogation rights against Buyer, its officers, directors, agents and employees, its affiliates, subsidiaries and customer, if any.
7. Termination. Buyer may, by written notice, terminate all or any portion of this Purchase Order upon the default or threatened default of Seller in performance of any obligation under this Purchase Order or upon Seller’s insolvency, voluntary or involuntary bankruptcy or other action for the relief of debtors, without waiving any other right or remedy that Buyer may have. In the event of such termination, Buyer shall have no further obligation to Seller except to pay for accepted goods and/or services, less any costs and damages caused by Seller’s default, including attorney and professional fees and costs. Buyer may also terminate this Purchase Order, or any portion of it, for its convenience. In the event of such termination, Buyer’s sole obligation to Seller is to pay for accepted goods and/or services and costs incurred in performance under this Purchase Order for which Seller cannot recover by application to another sale or project; and, Seller is not entitled to recover unearned or anticipated profit or overhead. In no event shall Seller be entitled to recover in excess of the then unpaid Purchase Order price.
8. Use and Disclosure of Information, Assignment and Waiver. Seller agrees that all information provided or disclosed to it in connection with this Purchase Order shall only be used to facilitate its performance under the Purchase Order and shall be treated by Seller as confidential, proprietary trade secrets. Seller shall not disclose any information about this Purchase Order, including its existence to any third party. Seller shall not assign this Purchase Order or any portion of it without the express written consent of Buyer. No course of dealing or failure of Buyer to strictly enforce any provision of this Purchase Order shall be construed as a waiver of such provision.
9. Choice of Law. These terms and conditions shall be governed by, and construed in accordance with, the laws of the State of Georgia. Seller agrees that all disputes will be resolved in a court of competent jurisdiction in Atlanta, Georgia and consents to personal jurisdiction there. The rights and obligations of the parties hereunder shall not be governed by the 1980 U.N. Convention of Contracts for the International Sale of Goods.