Terms and Conditions
a. These terms and conditions of purchase (these “Terms”) are the only terms which govern the purchase of the goods (“Goods”) and services (“Services”) by Mike Albert Leasing, Inc., or its applicable subsidiaries, affiliates, successors or assigns (collectively, “Mike Albert”) from the seller (“Seller”) named on the purchase order (the “Purchase Order”) delivered by Mike Albert to Seller referencing these Terms. Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods and Services covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
b. The Purchase Order and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Seller’s terms and conditions regardless of whether or when Seller has submitted a price quote, sales confirmation, invoice or such terms. This Agreement expressly limits Seller’s acceptance to the terms of this Agreement. Fulfillment of this Purchase Order constitutes acceptance of these Terms.
2. Delivery of Goods and Performance of Services.
a. Seller shall deliver the Goods in the quantities and on the date(s) specified in the Purchase Order or as otherwise agreed in writing by the parties (the “Delivery Date”). If no delivery date is specified, Seller shall deliver the Goods within 15 days of Seller’s receipt of the Purchase Order, or within the lead time(s) specified on the Purchase Order, or such other period of time as is commercially reasonable based upon the type and quantity of Goods ordered. If Seller fails to deliver the Goods in full on the Delivery Date, Mike Albert may terminate this Agreement immediately by providing written notice to Seller and Seller shall indemnify Mike Albert against any losses, claims, damages, and reasonable costs and expenses directly attributable to Seller’s failure to deliver the Goods on the Delivery Date.
b. Seller shall deliver all Goods to the address specified in the Purchase Order (the “Delivery Point”) during Mike Albert’s normal business hours or as otherwise instructed by Mike Albert.
c. Seller shall provide the Services to Mike Albert as described and in accordance with the Purchase Order and these Terms.
d. Seller acknowledges that time is of the essence with respect to Seller’s obligations hereunder and the timely delivery of the Goods and Services.
3. Shipping Terms.
Delivery shall be made FOB Delivery Point. The Purchase Order number must appear on all shipping documents, shipping labels, bills of lading, invoices, correspondence and any other documents pertaining to the Purchase Order.
4. Title and Risk of Loss.
Title and risk of loss passes to Mike Albert upon delivery and acceptance of the Goods at the Delivery Point.
5. Inspection and Rejection of Nonconforming Goods.
Mike Albert has the right to inspect the Goods on or after the Delivery Date. If Mike Albert rejects any of the Goods, Mike Albert has the right, effective upon written notice to Seller, to: (a) rescind this Agreement in its entirety; (b) accept the Goods at a reasonably reduced price; or (c) reject the Goods and require replacement of the rejected Goods. If Mike Albert requires replacement of the Goods, Seller shall, at its expense, promptly replace the nonconforming or defective Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective goods and the delivery of replacement Goods. If Seller fails to timely deliver replacement Goods, Mike Albert may replace them with goods from a third party and charge Seller the cost thereof and terminate this Agreement for cause pursuant to Section 16. Any inspection or other action by Mike Albert under this Section 5 shall not reduce or otherwise affect Seller’s obligations under the Agreement, and Mike Albert shall have the right to conduct further inspections after Seller has carried out its remedial actions.
The price of the Goods and Services is the price stated in the Purchase Order (the “Price”). If no price is included in the Purchase Order, the Price shall be the price set out in the price quote sales confirmation or similar document which may be accepted only by Mike Albert’s execution thereof, and if no such executed quote, confirmation or document exists, Seller’s published price list in force as of the date of the Purchase Order. Unless otherwise specified in the Purchase Order, the Price includes all packaging, transportation costs to the Delivery Location, insurance, and fees and applicable taxes, including, but not limited to, all sales, use or excise taxes. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Mike Albert.
7. Payment Terms.
Seller shall issue an invoice to Mike Albert on or any time after the completion of delivery and only in accordance with these Terms. Mike Albert shall pay all properly invoiced amounts due to Seller within 60 days after Mike Albert’s receipt of such invoice, except for any amounts disputed by Mike Albert in good faith. These terms shall control over any terms of Seller contained in an invoice. Without prejudice to any other right or remedy it may have, Mike Albert reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Mike Albert to Seller.
8. Seller’s Obligations Regarding Services.
a. before the date on which the Services are to start, obtain, and at all times during the term of this Agreement, maintain, all necessary licenses and consents and comply with all relevant laws applicable to the provision of the Services;
b. ensure that all persons, whether employees, agents, subcontractors, or anyone acting for or on behalf of the Seller, are properly licensed, certified or accredited as required by applicable law and are suitably skilled, experienced and qualified to perform the Services;
c. ensure that all of its equipment used in the provision of the Services is in good working order and suitable for the purposes for which it is used, and conforms to all relevant legal standards; and
d. keep and maintain any Mike Albert equipment in its possession in good working order and not dispose of or use such equipment other than in accordance with the Mike Albert’s written instructions or authorization.
9. Change Orders.
Mike Albert may at any time, by written instructions and/or drawings issued to Seller (each a “Change Order”), order changes to the Services. Seller shall within five (5) days of receipt of a Change Order submit to Mike Albert a firm cost proposal for the Change Order. If Mike Albert accepts such cost proposal, Seller shall proceed with the changed services subject to the cost proposal and the terms and conditions of this Agreement. Seller acknowledges that a Change Order may or may not entitle Seller to an adjustment in the Seller’s compensation or the performance deadlines under this Agreement.
a. Seller warrants to Mike Albert that for a period of 24 months from the Delivery Date, all Goods will (i) be free from any defects in workmanship, material and design; (ii) conform to applicable specifications, drawings, designs, samples and other requirements specified by Mike Albert; (iii) be fit for their intended purpose and operate as intended; (iv) be merchantable; (v) be free and clear of all liens, security interests or other encumbrances; and (vi) not infringe or misappropriate any third party’s patent or other intellectual property rights. These warranties survive any delivery, inspection, acceptance or payment of or for the Goods by Mike Albert.
b. Seller warrants to Mike Albert that it shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.
c. The warranties set forth in this Section 10 are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Mike Albert’s discovery of the noncompliance of the Goods or Services with the foregoing warranties. If Mike Albert gives Seller notice of noncompliance pursuant to this Section 10, Seller shall, at its own cost and expense, promptly (i) replace or repair the defective or nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods to Seller and the delivery of repaired or replacement Goods to Mike Albert, and, if applicable, (ii) repair or re-perform the applicable Services.
11. General Indemnification.
Seller shall defend, indemnify and hold harmless Mike Albert, its subsidiaries, affiliates, successors or assigns and their respective directors, officers, shareholders and employees (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with the Goods and Services purchased from Seller or Seller’s negligence, willful misconduct or breach of the Terms. Seller shall not enter into any settlement without Mike Albert’s prior written consent.
12. Intellectual Property Indemnification.
Seller shall, at its expense, defend, indemnify and hold harmless Mike Albert and any Indemnitee against any and all Losses arising out of or in connection with any claim that Mike Albert’s or Indemnitee’s use or possession of the Goods or use of the Services infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. In no event shall Seller enter into any settlement without Mike Albert’s or Indemnitee’s prior written consent.
13. Limitation of Liability.
Nothing in this Agreement shall exclude or limit (a) Seller’s liability under Sections 10, 11, 12 or 18 hereof, or (b) Seller’s liability for fraud, property damage, personal injury or death caused by its negligence or willful misconduct.
During the term of this Agreement and for a period of five (5) years thereafter, Seller shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than $5,000,000 with financially sound and reputable insurers. Upon Mike Albert’s request, Seller shall provide Mike Albert with a certificate of insurance from Seller’s insurer evidencing the insurance coverage specified in these Terms. The certificate of insurance shall name Mike Albert as an additional insured. Seller shall provide Mike Albert with 30 days’ advance written notice in the event of a cancellation or material change in Seller’s insurance policy. Except where prohibited by law, Seller shall require its insurer to waive all rights of subrogation against Mike Albert’s insurers and Mike Albert.
15. Compliance with Law.
Seller and all Goods and Services shall comply with all applicable laws, regulations and ordinances, including, but not limited to, the Safe Drinking Water and Toxic Enforcement Act of 1986, California Health and Safety Code Section 25249.5 et seq. (Proposition 65). Seller shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement.
In addition to any remedies that may be provided under these Terms, Mike Albert may terminate this Agreement with immediate effect upon written notice to the Seller, either before or after the acceptance of the Goods or the Seller’s delivery of the Services, if Seller has not performed or complied with any of these Terms, in whole or in part. If the Seller becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then Mike Albert may terminate this Agreement upon written notice to Seller. If Mike Albert terminates the Agreement for any reason, Seller’s sole and exclusive remedy is payment for the Goods received and accepted and Services accepted by Mike Albert prior to the termination.
No waiver by Mike Albert of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Mike Albert. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
18. Confidential Information.
All non-public, confidential or proprietary information of Mike Albert, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Mike Albert to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the purpose of performing this Agreement and may not be disclosed or copied unless authorized in advance by Mike Albert in writing. Upon Mike Albert’s request, Seller shall promptly return all documents and other materials received from Mike Albert. Mike Albert shall be entitled to injunctive relief for any violation of this Section 18. The foregoing does not apply to information that is: (a) in the public domain; (b) known to Seller at the time of disclosure; or (c) rightfully obtained by Mike Albert on a non-confidential basis from a third party.
19. Force Majeure.
Neither party shall be liable to the other for any delay or failure in performing its obligations under this Agreement to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party’s fault or negligence, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable (“Force Majeure Event”). Force Majeure Events include, but are not limited to, acts of God or the public enemy, government restrictions, floods, fire, earthquakes, explosion, epidemic, war, invasion, hostilities, terrorist acts, riots, strike, embargoes or industrial disturbances. Seller’s economic hardship or changes in market conditions are not considered Force Majeure Events. Seller shall use all diligent efforts to end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized and resume performance under this Agreement. If a Force Majeure Event prevents Seller from carrying out its obligations under this Agreement for a continuous period of more than five (5) business days, Mike Albert may terminate this Agreement immediately by giving written notice to Seller.
Seller shall not assign, transfer, delegate or subcontract any of its rights or obligations under this Agreement without the prior written consent of Mike Albert. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Seller of any of its obligations hereunder.
21. Relationship of the Parties.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
22. No Third-Party Beneficiaries.
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
23. Governing Law.
All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule (whether of the State of Ohio or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Ohio.
24. Submission to Jurisdiction.
Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Ohio in each case located in the City of Cincinnati and County of Hamilton, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Purchase Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section 25.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the provisions set forth in Sections 14, 15, 18, 23, 24 and 26.
Amendment and Modification. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.