TERMS AND CONDITIONS OF PURCHASE ORDER
Brenco, LLC dba Brenco Exotic Woods Purchase Orders are made subject to the following terms and conditions, in addition to those stated or referenced on the Purchase Order, and include any drawings, specifications, schedules, exhibits or other writings incorporated herein. As used in this Purchase Order “Buyer” means Brenco, LLC; “Seller” means the party named on the Purchase Order; and “UCC” means the Uniform Commercial Code in effect from time to time in the state of Indiana.
1. Agreement: In consideration of Seller agreeing to sell, and Buyer agreeing to buy, the Seller agrees as follows: The terms and conditions of this Purchase Order together with the terms and conditions of any other document prepared by Buyer and sent to Seller constitute the agreement between the parties (the “Agreement”). Seller agrees to each and every term contained in the Agreement as a precondition to Buyer’s performance. Any term or condition in any invoice, acknowledgment, or other form or document issued by Seller, regardless of the materiality of the term or condition, that differs from or is contrary to the terms and conditions contained in the Agreement are objected to and excluded unless expressly agreed to in a written acknowledgment issued by Buyer. No other terms or conditions not set forth in the Agreement shall apply unless expressly agreed to in a written acknowledgment issued by Buyer.
2. Seller’s Acceptance: Acceptance of this Purchase Order is expressly limited to the terms and conditions contained herein. Any additional or different terms or conditions proposed by Seller shall constitute a counteroffer. Seller accepts this Purchase Order by signing and returning an acknowledgment copy of this Purchase Order, other written notice of acceptance which expressly refers to this Purchase Order and accepts the terms hereof, or commencement of performance. Acceptance of the Purchase Order must be received by Buyer within the time period specified on the Purchase Order.
3. Purchase Order Changes: Buyer may at any time by written notice to Seller make changes in any one or more of the following:
(i) applicable drawings, specifications, delivery schedules, exhibits or other writings forming a part of this Purchase Order;
(ii) method of shipment or packing;
(iii) place of delivery.
If any such change causes a decrease in the cost or the time required for performance of this Purchase Order, an equitable adjustment shall be made in the price or delivery schedule, or both, and this Purchase Order shall be modified in writing to reflect such changes. If any such change causes a increase in the cost or the time required for performance of this Purchase Order, in order for Seller to be able to recover such increase, Seller must immediately notify Buyer of its claim for such an increase. Buyer may then request from Seller an estimate of the increase in the cost or the time required for performance of any change prior to ordering the same, whereupon Seller shall promptly submit to Buyer a firm bid in writing stating the amount of any increase or decrease. Seller shall not proceed with the change for which any such estimate has been requested unless and until Buyer gives written notice to Seller to make such change.
4. Delivery: Time is of the essence in this Purchase Order. Seller is responsible for all costs of delivery of goods and/or performance of services. Should Seller fail to comply with the delivery or performance terms of this Purchase Order, Buyer may terminate this Purchase Order in whole or part and may buy elsewhere and charge Seller any additional expense incurred thereby. Buyer expressly retains all its rights and remedies provided by law in the case of such default, and no action on the part of the Buyer shall constitute a waiver of any right or remedy. Neither Buyer nor Seller shall be liable by reason of any failure to deliver or delay in delivery due to any cause beyond reasonable control without fault or negligence.
5. Identification: Identification of the goods shall occur upon Seller’s acceptance of this Purchase Order or as soon thereafter as the goods are identifiable.
6. Risk of Loss: Risk of Loss shall be upon the Seller until receipt of the goods by Buyer at the location identified on this Purchase Order or at such other location identified by Buyer.
7. Seller Warranties:
(a) Seller warrants that the goods and/or services subject to this Purchase Order will conform to all applicable specifications and samples furnished or accepted by Buyer, will conform to any representations or statements made by Seller to Buyer, will consist of only first-class workmanship and materials (all of which materials shall be new unless otherwise specifically allowed by notation by Buyer on the Purchase Order), and will be free from any defects, latent or patent, in material, design, or workmanship; Seller acknowledges that Buyer has relied on representations or statements made by Seller to Buyer, and that Buyer is relying on Sellers’ expertise, knowledge, skill, and judgment.
(b) Seller warrants that it has complied, and the goods and/or services covered by this Purchase Order will comply, with all applicable federal, state and local laws, rules, regulations and orders, which directly or indirectly regulate or affect the manufacture and/or sale of such goods or services. Seller will furnish Buyer with guarantees and assurances in accordance with the applicable provisions of any such law, rule, regulation or order which provide a specific written guarantee or assurance to be given by Seller with respect to such goods or services.
(c) Seller warrants that it has, or will have, at the time of delivery, good title to the goods covered by this Purchase Order, and that it has a right to transfer such goods, free from any security interest, lien or encumbrance. Before final payment, Seller shall, if requested, satisfy Buyer by affidavits or otherwise, that there is no outstanding security interest, lien or encumbrance for labor or material against the goods delivered to Buyer.
8. Disclaimers and Limitation of Liability Ineffective: Any attempt by Seller to disclaim any warranties, including those specified under the UCC, shall be ineffective. Seller shall remain liable for any indirect, special, incidental, consequential or punitive damages caused by Seller, and any attempt by Seller to limit Seller’s liability as to Buyer shall be ineffective.
(a) The price of the goods and/or services covered by this Purchase Order shall be the lesser of
(i) the amount specified on the Purchase Order or
(ii) the lowest price in effect on the date of shipment for comparable goods and/or services in comparable quantities, and Seller
shall promptly notify Buyer in writing of any reduction in price required hereunder.
(b) Buyer is not responsible for any charge not appearing on this Purchase Order.
10. Invoices and Payment:
(a) An invoice for goods and/or services, with evidence of shipment properly signed by carrier’s representative, if applicable, shall be submitted to Buyer for each shipment or performance of services. Error or omissions on invoices or delay in the receipt of invoices shall entitle Buyer to withhold payment without penalty or loss of any discount. Payment shall be made per the payment terms on the Purchase Order.
(b) Except as otherwise provided herein, payment for goods and/or services covered by this Purchase Order shall be made only
(i) after arrival of goods at destination or after completion of services,
(ii) after Buyer’s inspection and acceptance of goods and workmanship,
(iii) after receipt of the appropriate and corrective invoices, and
(iv) insofar as final payment is concerned, after Seller has complied with all of its obligations to Buyer. Buyer shall have
the right to set off against this Purchase Order any amounts that Seller may owe to Buyer.
(c) Neither inspection nor payment shall be deemed to waive any rights of the Buyer.
11. Right of Inspection: Buyer shall have the right to inspect the goods and/or services at the time and place of delivery or performance before paying for or accepting them.
12. Buyer’s Property:
(a) Any property furnished by Buyer to Seller in connection with this Purchase Order shall be and remain Buyer’s property and Seller shall be deemed to be an insurer thereof.
(b) Seller shall segregate, clearly mark and maintain complete inventory of all such property and will notify Buyer of any loss or destruction of or damage to such property.
(c) Upon termination or completion of this Purchase Order Seller shall deliver any such property to Buyer, in good condition subject to ordinary wear and tear and normal manufacturing losses, in accordance with Buyer’s instructions, or shall otherwise dispose of such property as directed by Buyer.
(d) Seller shall maintain fire insurance with extended coverage and theft insurance for any such property and provide evidence of such coverage upon request.
13. Confidential Information:
Seller acknowledges that any data, designs or other information disclosed by Buyer to Seller in connection with this Purchase Order is confidential and proprietary to Buyer and that use of or disclosure of this information other than as may be required in the course of Seller’s performance of this Purchase Order will be detrimental to Buyer. Seller shall not in any manner advertise, publish or release any information concerning this Purchase Order without the prior written consent of Buyer, except as may be required by law.
14. Assignment and Transfer: Seller shall not assign or transfer any of its rights or obligations under this Purchase Order without the express prior written consent of Buyer.
15. Remedies: Buyer and Seller shall have all of the remedies afforded by the UCC, as well as any other remedies which may be provided by law.
16. Costs of Breach: In the event Seller shall breach in any way Seller’s obligations under this, or any other agreement, to Buyer, Seller shall be liable to Buyer for all of Buyer’s costs of remedying the breach including, but not limited to, attorney’s fees and expenses.
17. Waiver: Failure of Buyer to insist upon strict adherence to any term of this Purchase Order on any occasion shall not be considered a waiver or deprive Buyer of the right thereafter to insist upon strict adherence to that term or any other term of this Purchase Order. Any waiver must be in writing and signed by an authorized representative of Buyer.
18. Governing Law: This Purchase Order shall be governed by and construed in accordance with the laws of the State of Indiana without regard to its conflict of law doctrine.
19. Entire Agreement: This Purchase Order, and the terms and conditions hereof, contains the complete agreement of the parties as to its subject matter, supersedes all prior agreements with respect to its subject matter, and may not be amended or discharged except in writing signed by the duly authorized representatives of both parties.