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:
1) ACCEPTANCE – Vendor agrees to furnish the goods and services ordered by Phoenix Mecano subject to 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 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. 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.
2) 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.
3) 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 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.
4) 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. 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.
5) WARRANTIES – Vendor represents and expressly warrants (i) that all goods ordered to specifications will conform thereto and to the 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. 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.
6) 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 in or to drawings, designs, specifications, instructions for work, method of shipment or packing or place of delivery. 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.
7) 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 be free and clear of infringement of any valid patent, copyright, trademark or trade secret. Vendor shall indemnify and hold Phoenix Mecano harmless from any and all liability and/or loss of any kind (and the cost and expenses, including without limitation attorney’s fees) arising out of any claim, suit or action alleging or arising out of any such infringement, which claim, suit or action Vendor agrees to compromise or defend.
8) 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.
9) RELEASE OF LIENS – All goods supplied and all services performed by Vendor pursuant to this order shall be free from all liens. If Phoenix Mecano requests, Vendor shall provide a proper release of liens or other satisfactory evidence of freedom from liens.
10) INDEMNITY – Vendor shall indemnify and hold Phoenix Mecano harmless from any and all claims, losses, liabilities, damages, costs and expenses including reasonable attorneys’ fees, including without limitation claims of injury or death to persons or damage to property (collectively, “Losses”), which may result from any act or omission arising out of the performance or non-performance of this order (including without limitation acts or omissions of Vendor or of its agents, employees or subcontractors), except to the extent that such Losses are due directly 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.
11) 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.
12) 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.