GMR Marketing LLC Purchasing Terms and Conditions

  1. Acceptance/Entire Agreement. This writing is an offer by GMR Marketing LLC ('Buyer') to buy the goods and/or services described on the face hereof ('Products') from the seller to which this offer is addressed ('Seller'), subject to the terms and conditions set forth on the face and reverse sides hereof. This is not an acceptance of any offer by Seller to sell. Buyer hereby objects to any additional or different terms contained on any of Seller's quotation, acknowledgment, invoice or other forms, correspondence, or in any other communication from Seller. This offer expires 90 days from its date or upon prior written notification thereof to Seller, unless goods conforming hereto are subsequently shipped, or services are subsequently performed, by Seller and accepted by Buyer. The terms of this offer, when accepted by Seller explicitly, by shipment of conforming goods or otherwise, shall constitute the entire agreement between the parties on the subject hereof, superseding all other oral and written communications and negotiations. The Agreement may not be modified except in a writing signed by Buyer and Seller.

  2. Prices. All prices are firm for the term of this Agreement, and no additional charges will be allowed unless specifically provided for on the face hereof. All time periods for determining payment due dates and availability of discounts commence with Buyer's receipt of the Products or receipt of an invoice, whichever is later.

  3. Payment. Unless otherwise specified herein, Buyer will pay invoices for Products shipped to Buyer or its designee within thirty (30) days of receipt of the Products or receipt of any invoice, whichever is later.

  4. Delivery; Anticipation. Seller shall deliver the Products within the time, which is of the essence, in the quantities and at the prices specified on the face hereof or in any document attached hereto or referred to herein, in accordance with Buyer's specifications (as well as the sample approved by Buyer, if any). If Seller fails to comply with such requirements, Buyer may, in addition to any other rights or remedies, cancel this order and be relieved of all liability for any undelivered portion. Seller shall not unreasonably anticipate delivery by purchasing materials or manufacturing quantities in excess of what is reasonably required to meet Buyer's delivery schedule. Products received in advance of Buyer's delivery schedule may, at Buyer's option, be returned at Seller's expense or be accepted and payment withheld until the scheduled delivery date. Failure by Buyer to insist upon strict performance shall not constitute a waiver of any of the provisions of this order or waiver of any default.

  5. Packing and Shipping. All Products shall be suitably packed, marked conspicuously with Buyer's purchase order number, and shipped in accordance with shipping instructions specified herein and otherwise in accordance with the requirements of common carriers so as to obtain the lowest transportation cost. Buyer shall have the right to route all shipments. No charge shall be made to Buyer for packaging, boxing or cartage unless separately itemized on the face hereof. Seller shall be liable to Buyer for any loss or damage resulting from Seller's failure to act so as to provide adequate protection during shipment. Additional expenses, charges or claims incurred as a result of deviation from the specified route, non-compliance with other shipping instructions or improper description of the shipment in shipping documents shall be Seller's responsibility. Immediately upon shipment Seller is to notify Buyer, advising of complete shipping and routing information.

  6. Inspection. Seller shall allow Buyer access to Seller's plant at all reasonable times to inspect any Products (and work-in-process relating thereto). Seller without additional charge shall provide all reasonable facilities and assistance for the safety and convenience of the inspectors in the performance of their duties at Seller's plant. Notwithstanding prior inspections, all Products are subject to final inspection and approval at Buyer's plant or other place designated by Buyer. Such inspection shall be made within a reasonable time after delivery, irrespective of the date of payment. Notwithstanding any payment that may be made, no goods are to be deemed accepted until Buyer has had a reasonable opportunity to inspect them. Buyer's inspection before, during or after manufacture and delivery shall not constitute a waiver of the right to later reject any such goods by reason of undiscovered or latent defects.

  7. Rejected Products. Buyer may return rejected Products at Seller's expense. Seller shall not replace Products returned as defective unless so directed by Buyer in writing.

  8. Risk of Loss. The risk that Products may be lost, damaged or delayed in transit shall be borne by Seller until actual receipt of them by Buyer in conformity with the terms of this order.

  9. Changes. Buyer may change drawings, specifications, quantities, delivery schedules, place of delivery or methods of shipment or packaging on any item at any time; and Seller agrees to make such changes. If such changes result in an increase or decrease in cost, an equitable adjustment of price and delivery schedules may be made, or Buyer may, at its option, cancel this order pursuant to paragraph 14 hereof if agreement on an equitable adjustment cannot be reached. Seller must assert claims for equitable adjustment within ten days of the change order. This order, together with any change orders or instructions, shall constitute one contract.

  10. Warranties. Seller warrants that all goods constituting Products supplied hereunder shall be free and clear of all liens and encumbrances, good and merchantable title thereto being in the Seller; be free from any defects in design, material or workmanship (latent or otherwise) and be of good and merchantable quality; conform to Buyer's specifications and the sample approved by Buyer, as the case may be, and be fit for the purposes for which purchased hereunder; and comply and have been produced, processed and delivered in conformity with all applicable federal, state or other laws, administrative regulations and orders. The foregoing warranties shall survive inspection, delivery and payment and shall run in favor of Buyer and its customers.

  11. Non-assignability. Seller shall not assign or sublet the work to be done hereunder without the prior written consent of Buyer; but this provision shall not restrict Seller in the procurement of component parts or materials. If this order shall be terminated for Buyer's convenience, Buyer's liability to Seller with respect to such parts or materials shall not exceed the amount for which Seller would be liable to its supplier or suppliers if such liability were determined on the basis of paragraph 14 hereof.

  12. Taxes. Except as otherwise expressly set forth on the face of this order, Buyer shall not be liable for any federal, state or local taxes, duties, customs, or assessments of any kind in connection with the sale, purchase, transportation, use, or possession of the Products ordered hereunder.

  13. Insurance. Seller will maintain commercial general liability insurance in the amount of not less than one million dollars ($1,000,000); commercial automobile liability insurance for all owned, non-owned and hired automobiles in the amount of not less than one million dollars ($1,000,000), and any other applicable insurance coverage, with limits that are customary and reasonable for Seller’s operations and acceptable to Buyer. Seller shall maintain statutory worker’s compensation coverage meeting all state and local requirements, including employer’s liability with limits of no less than five hundred thousand dollars ($500,000). Seller’s insurance shall be primary coverage without right of contribution from Buyer or Buyer’s clients’ insurance. All policies, except worker’s compensation/employer’s liability, will be endorsed to include Buyer and Buyer’s clients as Additional Insured. Seller will provide insurance certificates and copies of Additional Insured endorsements evidencing all requirements within this Insurance section, upon the earlier of (a) Seller’s acceptance of this Purchase Order or (b) the provision of goods and/or services by Seller as outlined in this Purchase Order.

  14. Indemnity. Except for Products ordered in accordance with Buyer's design, Seller warrants that the sale or use of Products furnished hereunder will not infringe or contribute to infringement of any patent, copyright, trade secret, trade name, trademark or any proprietary right of another in the United States or elsewhere, or subject Buyer or its customers (direct or indirect) to royalties in the United States or elsewhere; and Seller shall indemnify Buyer, its successors and assigns and its customers, whether direct or indirect, against any and all losses, damages and expenses (including attorneys' fees and other costs of defending any action) which they, or any of them, may sustain or incur as a result of an alleged breach of this warranty.

    If any Product or the use thereof is held to constitute infringement of any intellectual property right and the use thereof is enjoined, Seller shall, at its expense, either procure for Buyer, its dealers and customers, the right to continue using said Product or replace said Product with a substantially equal, but non-infringing product, acceptable to Buyer; or, if further use of the Product is not possible, Seller will accept the return of any unsold Product and refund to Buyer the purchase price and transportation costs therefor.

    Seller also shall hold harmless and indemnify Buyer, its successors and assigns and its customers, whether direct or indirect, against any and all losses, damages and expenses (including attorneys' fees and other costs of defending any action) which they, or any of them, may sustain or incur as a result of any claim of negligence, breach of warranty or strict liability in tort in connection with the Products, except such as may be caused solely by the negligence of Buyer, its successors and assigns, and/or its customers.

  15. Cancellation By Buyer. Buyer shall have the right to cancel this order without cause and in such event Buyer's liability for cancellation shall be limited to Seller's actual cost for work and materials, applicable solely to this order, which shall have been expended before notice of cancellation has been received by Seller. Buyer may, at its option, cancel this order without liability to Seller (except for conforming shipments previously accepted by Purchaser) in the event Seller shall cease to exist or become insolvent or the subject of bankruptcy or insolvency proceedings or shall commit a material breach in the performance of any part of its obligation hereunder.

  16. Fair Labor Standard Certificate. Seller hereby certifies that all Products furnished hereunder shall have been produced in compliance with all applicable requirements of Sections 6, 7 and 12 of the Fair Labor Standards Act of 1938, as amended, and of regulations and orders of the Administrator of the Wage and Hour Division issued under Section 14 thereof, and in accordance with all applicable state and federal laws and regulations governing general conditions for labor employed in the production of such goods.

  17. Delays. In the event of a delay in delivery or nondelivery by Seller otherwise excusable under Section 2-615 of the Uniform Commercial Code, Seller shall notify Buyer pursuant to paragraph (c) thereof. Seller agrees to meet all of Buyer's requirements hereunder prior to any allocation among Seller's customers pursuant to Section 2-615(b) of the Uniform Commercial Code unless Buyer instead terminates this contract under Section 2-616(1) (a) thereof.

  19. Remedies. If Seller breaches a warranty under this Agreement, or fails to perform or comply with any provision of this Agreement, Seller shall be liable to Buyer for all damages arising therefrom. Buyer expressly retains all its rights and remedies provided by law in the event of such breach. Without limiting the foregoing, Buyer may at its option require Seller to repair or replace, at Seller's expense, any Products affected by a breach of warranty, even if such Products are located other than at Buyer's facility. The rights and remedies of Buyer set forth herein shall be in addition to any rights or remedies which Buyer may have otherwise.

  20. Relationship of the Parties. GMR Marketing LLC will only be liable for the cost of the goods and services purchased and other obligations to you to the extent we have been paid by our client for any amount payable to you. For amounts not paid to us by our client, you will seek payment solely from our client (and not from GMR Marketing LLC). Any terms in your invoices, documents or rate cards to the contrary, and any modifications you make to this form, are of no force or effect.