The following terms and conditions shall apply to all purchases of goods and/or services by Phoenix Mecano, Inc. (“Phoenix Mecano”) from any seller (“Vendor”) without exception:
ACCEPTANCE: Vendor agrees to furnish the goods and services ordered by Phoenix Mecano in accordance with these terms and conditions. Phoenix Mecano will not be bound to any terms and conditions to which it has not specifically agreed in writing. Any terms or conditions proposed by Vendor inconsistent with or in addition to these terms and conditions shall be deemed void and of no effect unless Phoenix Mecano specifically agrees to such terms and conditions in writing. These terms and conditions, together with such additions and/or modifications, and with such terms and conditions relating to price and delivery, as are accepted in writing by Phoenix Mecano, constitute the entire agreement between the parties. Acknowledgement, shipment, or performance of any purchase order will constitute acceptance by Vendor of all terms and conditions hereof. The rights of both parties hereunder shall be in addition to their rights and remedies at law or in equity. Failure of Phoenix Mecano to enforce any of its rights hereunder shall not constitute a waiver of such rights or of any rights it may have.
PRICES AND PAYMENTS: If a purchase order is used to order Vendor’s goods and/or services, Vendor shall fill Phoenix Mecano’s order at the price specified on the purchase order, or at any lower price. If no price is specified or if no purchase order is used, the order shall be filled at the lowest of (a) the price last quoted by Vendor, (b) the price last paid by Phoenix Mecano to Vendor, unless an authorized representative of Phoenix Mecano’s purchasing department approves a higher price in writing. All goods furnished to Phoenix Mecano shall be subject to Phoenix Mecano’s inspection and approval, notwithstanding prior receipt and payment, and, if unsatisfactory, may be returned, transportation both ways at Vendor’s expense. Vendor shall box, crate, or package as necessary for shipment without charge unless otherwise specified on Phoenix Mecano’s order. Vendor shall invoice Phoenix Mecano promptly upon delivery of goods or performance of services. Vendor’s invoices shall include, when applicable, a purchase order number and any other information Phoenix Mecano shall reasonably request.
DELIVERY: NOTICE OF LABOR DISPUTES: Time is and shall remain of the essence of this order, and no acts of Phoenix Mecano, including without limitation modification of this order or acceptance of late deliveries, shall constitute a waiver of this provision. Vendor agrees to deliver all items sold to Phoenix Mecano and all services to be performed by or on behalf of Vendor for Phoenix Mecano on or prior to the date designated by Phoenix Mecano on the face of the order or otherwise if no order is issued, and if any shipment or delivery is made which is not in all respects in accord with the order (including time of shipment or delivery), Phoenix Mecano reserves the right to terminate the order subject to Section 4 below. Partial shipments are not permitted and shall not be accepted, unless approved by Phoenix Mecano in writing in advance of shipment. All expenses of transportation and storage, if any, resulting therefrom shall be for Vendor’s account. Vendor shall ship said items and perform said services in a manner consistent with the agreed manner set forth in the order.
Vendor shall notify Phoenix Mecano immediately of any actual or potential labor dispute, or other known cause of delay, which is delaying or threatens to delay the timely performance of this order. Phoenix Mecano reserves the right to refuse or return, at Vendor’s risk and expense, shipments made in excess of Phoenix Mecano’s orders, agreed overage allowances, or to defer payment on advance deliveries until scheduled delivery dates. Phoenix Mecano’s count shall be accepted as conclusive on all shipments not accompanied by a packing slip.
TERMINATION: Phoenix Mecano may terminate this order in whole or in part at any time. Upon receipt of notice of such termination Vendor shall, except as otherwise directed by Phoenix Mecano, stop all performance under this order, furnish Phoenix Mecano with a list of all outstanding orders for goods and services, and take such action relative thereto as Phoenix Mecano may direct. Phoenix Mecano shall reimburse Vendor for reasonable expenses incurred by reason of such termination including Vendor’s cancellation charges for which Phoenix Mecano may be liable by reason of such cancellation, including all reasonable costs identified to the order incurred prior to the effective date of the termination and all reasonable out-of-pocket expenses actually incurred by Vendor attributable to the termination, provided that such adjustment shall not include any amounts for anticipatory profits nor any costs with respect to Vendor’s overhead or any items which are Vendor’s standard stock. In the event of such termination pursuant to a Notice of Termination received by Phoenix Mecano from a government entity in accordance with a grant or contract award, Phoenix Mecano shall be obligated to pay Vendor only that amount which shall be determined to be, or approved as, reimbursable to Phoenix Mecano under said grant or contract with respect to this order.
If Vendor is in default in delivery or otherwise has breached any terms or conditions of this order, Phoenix Mecano, upon written notice to Vendor specifying the alleged default may terminate this order in whole or in part without any adjustment, if Vendor has failed to initiate and pursue with due diligence correction of such specified default within ten (10) days after Vendor’s receipt, and, in addition to any other remedy provided by law, may procure items or services similar to those as to which this order is terminated and Vendor shall be liable to Phoenix Mecano for any costs for such similar items or services in excess of the price or prices specified herein, provided, however, that Vendor shall continue the performance of this order to the extent not terminated by Phoenix Mecano.
WARRANTIES: Vendor represents and expressly warrants (i) that all goods ordered, and work covered by this order will conform to specifications, drawings, samples or other descriptions Phoenix Mecano furnishes or, if not ordered to specifications, that such goods will be suitable for the purpose intended, and (ii) that all goods and services will be of good quality and workmanship and free from defects. These warranties are in addition to any other warranties specified herein or as otherwise implied or required by law and shall survive inspection, acceptance and payment and not be affected by use. In addition to all other remedies available to Phoenix Mecano at law, at Phoenix Mecano’s option and promptly upon receipt of notice from Phoenix Mecano, Vendor shall at its own expense (i) replace any goods which are defective, (ii) correct any goods which are defective, or (iii) refund any payments Phoenix Mecano has made for, and arrange pick-up or return of, any goods which are defective. Vendor agrees to proceed with the correction of any defects in a manner satisfactory to Phoenix Mecano. Vendor shall assume all risk of loss or damage to goods which are to be replaced or corrected pursuant to this warranty from the date on which Vendor is notified of the defect or non-conformity until the replaced or corrected goods are received at the destination designated by Phoenix Mecano. In the event of failure by Vendor to correct defects in or replace nonconforming items or services, Phoenix Mecano may make correction or replacement and charge Vendor for the costs incurred thereby.
Vendor expressly warrants that title (except for “shrinkwrap” licensed software, for which title shall not pass) to all items sold to Phoenix Mecano under this order or services performed by or on behalf of Vendor for Phoenix Mecano under this order shall pass to Phoenix Mecano upon delivery free and clear of all liens, claims, security interests or encumbrances. Vendor shall provide a proper release of liens or other evidence satisfactory to Phoenix Mecano upon request.
Vendor represents, warrants and covenants that the goods (and the manufacture, packaging, storage, handling, transportation and delivery thereof) supplied will comply with all applicable laws, rules, regulations, codes and ordinances of the country(ies)/state(s) of manufacture, country(ies)/state(s) of intended use and country(ies)/state(s) of delivery.
CHANGES: Phoenix Mecano may at any time, by written order and without notice to any surety, make changes or additions within the general scope of this purchase order, including additions to or deletions from the quantities of items or services ordered or in or to drawings, designs, specifications, instructions for work, delivery schedules, method of shipment or packing or place of delivery, but no additional charges shall be allowed unless authorized in writing by Phoenix Mecano. If any such change causes an increase or decrease in the cost of or in the time required for performance of this order, Vendor shall notify Phoenix Mecano in writing immediately and an appropriate equitable adjustment will be made in the price or time of performance, or both, by written modification of this order. Any claim by Vendor for any such adjustment must be made within thirty (30) days, or such other period as the parties may agree in writing, after Vendor’s receipt of notice of the change. Nothing herein contained shall excuse Vendor from proceeding with the purchase order as changed.
PROPRIETARY INFORMATION AND MATERIALS: All drawings, specifications and other copyrightable documents and any molds, dies, tools, equipment, recipes, trade secrets, patents, trademarks or the like furnished by or on behalf of Phoenix Mecano are for use solely with respect to the order. Vendor (i) will not have any rights to, property or interest in the same except to the extent necessary to execute the order, (ii) will be responsible for maintaining the same in proper working order subject only to normal wear and tear, and (iii) upon completion (or earlier cancellation or termination) of the order, will promptly destroy or return these items, as requested by Phoenix Mecano.
OWNERSHIP OF INVENTIONS: With respect to new or modified goods/services, all rights, titles, and interest in any and all inventions (including discoveries, ideas, or improvements, whether patentable or not), (i) based upon or arising from Phoenix Mecano’s information, or (ii) developed specifically for Phoenix Mecano, will belong to Phoenix Mecano regardless of when they are created. In the event that Vendor produces works of authorship for Phoenix Mecano under the order (“Works”), the Works will be deemed “works made for hire” and Phoenix Mecano will receive all rights, title, and interest thereto. However, if any Works are not determined to be “works made for hire”, Vendor agrees to assign, and hereby assigns to Phoenix Mecano and its successors the entire right, title, and interest, in and to the Works. Nothing in the order will affect the pre-existing intellectual property rights of the parties.
CONFIDENTIALITY: Vendor agrees to keep confidential the terms and conditions of the order and all proprietary information disclosed by or on behalf of Phoenix Mecano or otherwise learned or obtained by Vendor in connection with the order or the performance hereof. Vendor will not use any of this information other than in connection with the performance of the order and will not disclose any of this information except to the extent required by law and then only after prior notice to Phoenix Mecano.
PATENTS, COPYRIGHTS, TRADEMARKS, AND TRADE SECRETS: Vendor warrants that the sale, use or incorporation into manufactured products of all goods furnished hereunder which are not of Phoenix Mecano’s design, composition or manufacture shall not violate any patent, copyright, trademark or trade secret rights of a third party. Vendor shall indemnify, defend, protect and hold harmless Phoenix Mecano, its employees, agents, servants, successors and assigns from all costs, expenses (including reasonable attorneys’ fees), damages or claims arising out of infringement, or claim of infringement, of any patent rights, trademark, trade secrets or trade name with respect to the products or services purchased pursuant to this order and further agrees, without in any way limiting any other remedies Phoenix Mecano, its successors and assigns might have against Vendor, that in the event of any such claim, and if required by Phoenix Mecano, Vendor shall at its expense and at no cost to the Phoenix Mecano do one of the following: (1) procure for Phoenix Mecano the right or license (on a royalty-free basis) to use and continue to use said items and/or services; (2) replace said items or services with non-infringing items and/or services of like or superior kind, productivity, efficiency, quality, and value; or (3) modify said items and/or services so as to become non- infringing. Should the items and/or services be modified, as provided herein, such modification shall not reduce the usefulness or productivity of same.
ASSIGNMENT: Vendor shall not assign any of its rights (including without limitation the right to any monies due or to become due) or delegate any of its obligations under this order without Phoenix Mecano’s prior written consent. Any assignment by Vendor of any monies due or to become due shall be subject to set-off, recoupment or other claim of Phoenix Mecano against Vendor.
INDEMNITY: Vendor shall indemnify, defend, protect and hold harmless Phoenix Mecano, its employees, agents, servants, successors and assigns from and against any and all losses, damages, injuries, claims, demands, expenses, including reasonable legal fees and expenses, of whatever nature, arising out of the condition (including, but not limited to, latent and other defects and whether or not discoverable by it) of any item sold to Phoenix Mecano under this order or arising out of acts or omissions of Vendor in the performance of its obligations hereunder or in violation of the terms and conditions hereof, or arising out of the performance of any services by or on behalf of Vendor for Phoenix Mecano, including but not limited to losses, damages, claims, demands and expenses resulting from injuries to or death of any person or damage to any property occasioned by said acts or omissions of Vendor, its officers, employees, agents or subcontractors, except to the extent directly due to Phoenix Mecano’s gross negligence or willful misconduct. Vendor shall compromise or defend at its sole cost and expense any such claim, suit or action.
INSURANCE: Vendor shall maintain such Public Liability, Property Damage, Employer’s Liability and Compensation Insurance and Motor Liability Insurance (Personal Injury and Property Damage) as will protect Vendor (or its subcontractors) and Phoenix Mecano from said risks and from any claims under any applicable Worker’s Compensation or Occupational Disease statutes. Notwithstanding the foregoing, if Vendor and Phoenix Mecano agree in a dually signed agreement to specific types and quantities of insurance, such types and quantities shall be deemed sufficient for the engagement or purchase described in such agreement.
TAXES-Vendor, as a contractor, shall pay and be solely responsible for any and all sales and/or use taxes on all materials, supplies and equipment used in the furnishing of the items and/or services which are the subject of this order and otherwise in the performance of Vendor’s obligations under this order. The prices shown on this order are deemed to include (i) all costs to comply with the terms and conditions of the order, (ii) all taxes, including sales, use, excise, value added and other taxes, and (iii) fees, duties, or other governmental impositions on the sale of goods or services covered by this order.
MISCELLANEOUS: This Agreement, and all rights and obligations of the parties, whether arising under this Agreement or otherwise, shall be governed by and construed in accordance with the laws of the state of Maryland, without giving effect to its principles of conflict of laws. The sole and exclusive jurisdiction for resolution of any disputes between the parties shall be in the state and federal courts located in Maryland, and each of the parties hereby submits to the jurisdiction of such courts. Without limiting the foregoing, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods and the UNIDROIT Principles of International Commercial Contracts shall not apply to or govern this order.