1. GOVERNING TERMS AND CONDITIONS. This Purchase Order constitutes Packgen’s offer to the seller and/or its affiliates (the “Seller”) in relation to the goods and/or services referenced herein (the “Goods”). Packgen’s order is expressly conditioned upon Seller’s assent to the terms and conditions set forth herein. To the extent that the Seller has previously submitted to Packgen any communication that may be construed as an offer, Packgen hereby rejects such offer. To the extent that the Seller subsequently submits to Packgen any communication that may be construed as a proposal for additional or different terms, or a counteroffer, Packgen hereby objects to and rejects such proposals or counteroffers. Packgen shall not be bound by any additional or different terms or conditions contained in Seller’s quotation, order acknowledgement, counteroffer, or any other means otherwise proposed by Seller. This document, together with any specifications provided by Packgen and Seller’s warranties (whether implied at law or otherwise or expressly made made by Seller), represents the final, complete, and exclusive statement of agreement between the parties and may not be modified, or altered in any way without the express written consent of Packgen.
2. INSPECTION; WARRANTIES. Packgen shall have the right to inspect, test and approve the goods after they are received at the Packgen location specified in the Purchase Order. Payment by Packgen for the Goods shall not constitute acceptance thereof. For a period of four (4) years after receipt and acceptance of the Goods by Packgen, Seller warrants that the Goods shall: i) be fit and sufficient for the purpose intended, including for use in Packgen products (including containers used for storage of hazardous and/or volatile materials) ii) be merchantable; iii) be of good quality and material; iv) be free from defects in material and workmanship. These warranties shall be in addition to any express warranties made to Packgen by Seller and any other warranties imposed by law or customarily extended by Seller to its customers. All warranties shall survive inspection, tests, acceptance and payment and shall run to Packgen, its successors, assigns, customers, and end-users.
3. NON-CONFORMING GOODS. To the extent that Seller provides Goods that are: i) not fully up to standard or in breach of warranty; ii) not in compliance with the specifications provided by Packgen; iii) shipped contrary to instructions; iv) in excess of or less than the quantities herein provided; v) provided in substitution for the Goods described; or vi) in violation of any statute, ordinance, or administrative order, rule, or regulation, Packgen may reject such Goods, and hold, return, or dispose (at Packgen’s election) at the Seller’s expense and risk. Packgen may charge to Seller all expense of inspecting unpacking, examining, repacking, storing, and reshipping any goods rejected as aforesaid. The remedies hereinabove afforded to Packgen shall not be exclusive, but Packgen may hold Seller liable for all damages arising from any breach or default hereinabove set forth.
4. PRICES; Payment. Prices set forth in this Purchase Order are not subject to increase. No additional amounts shall be chargeable to Packgen because of taxes or excises, presently or hereafter levied on Seller. If price includes taxes or excises, and if such taxes or excises or any part thereof are hereafter refunded to Seller, Seller shall immediately pay Packgen the amount of such refund. Seller certifies that the prices herein are not higher than prices being charged to other organizations purchasing identical goods in smaller quantities at this particular time and do not discriminate against purchaser. Seller represents that the prices and terms of purchase, and any allowances available shall be in full compliance with the Robinson Patman Act.
5. TIME OF THE ESSENCE. Seller warrants that the Goods will be delivered to Packgen by the dates specified on the face of this Purchase Order, unless otherwise agreed by Packgen in writing. Time is therefore of the essence. If the Goods are not delivered within the time specified hereon, Packgen may reject such Goods and cancel the order. The acceptance of later or defective deliveries shall not be deemed a waiver by Packgen of its right to cancel this order, or to refuse to accept further deliveries.
6. PACKING. Each package shall be numbered and labeled with Packgen’s order number, stock number, contents, and weight, shall contain an itemized packing slip and shall be properly prepaid for shipment so as to secure lowest transportation and insurance rates and to meet carrier’s requirements unless otherwise specified. No charges will be allowed Seller for packing, breaking, freight, express, or cartage unless stated herein.
7. WARRANTY AGAINST INFRINGEMENT. Seller warrants that the sale or use of Goods of Seller’s design or Seller’s patents covered by this order either alone, or in combination with other materials, will not infringe or contribute to the infringement of any patents or trademarks or copyrights either in the U.S.A. or foreign countries, and Seller shall defend and indemnify Packgen from every suit which shall be brought against Packgen or any party selling or using Packgen’s products for any alleged infringements of any patents, trademarks or copyrights, by reason of the sale or use of said materials either alone, or in combination with other materials and to pay all expenses and fees of counsel which shall be incurred in and about defending every such suit and all costs, damages, and profits recoverable in every such suit.
8. TRADEMARK; TRADE NAME. If the Goods specified within this order are peculiar to Packgen’s design or if the Goods bear Packgen’s trademark or identifying mark they shall not bear trademark or other designation of the maker or Seller and similar goods shall not be sold or otherwise disposed of to anyone other than Packgen without Packgen’s written consent. The title to any and all drawings and blueprints, jigs, dies, patterns, tools, etc., used in connection with this order shall at all times vest in Packgen and shall upon completion of deliveries hereunder or upon termination of the agreement pursuant to which this order is issued, be delivered to Packgen upon request and Seller assumes all liability for loss thereof or for Seller’s failure to return such property to Packgen. Unless authorized by Packgen in writing, Packgen’s name, trade name, or the name or trade name of any of Packgen’s subsidiaries or affiliates, shall not be used in Seller’s advertising.
9. COMPLIANCE WITH LAW. Seller’s Goods and/or services provided in relation to this Purchase Order shall be subject in all respects to and in compliance with all laws, rules, regulations, and ordinances, proclamations, demands, directives, executive orders, or other requirements of the municipal, state, and federal governments and all subdivisions thereof which now govern or may hereafter govern the manufacture, sale, or delivery of the parts, supplies, and goods, contemplated by this order, including, but not limited to the provisions of the Fair Labor Standards Act of 1938, the Walsh Healy Act, the Federal Food, Drug, and Cosmetics Act, and any other applicable laws.
10. CONSEQUENTIAL AND OTHER DAMAGES. SELLER AGREES THAT IT SHALL BE LIABLE TO PACKGEN, ITS SUCCESSORS, ASSIGNS, AGENTS, CUSTOMERS AND END USERS OF THE GOODS (WHETHER INCORPORATED INTO ANY PACKGEN PRODUCT OR OTHERWISE) FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, DIRECT AND INDIRECT OR OTHER DAMAGES ARISING OUT OF OR RELATING TO THE GOODS AND/OR SERVICES PROVIDED BY SELLER.
11. INDEMNIFICATION BY SELLER. Seller shall indemnify and hold harmless Packgen, its successors, assigns, agents, customers or end users of Packgen’s products using or incorporating the Goods against all loss, damage, expense, claims, causes of action, demands or liabilities (collectively, “Claims”) arising out of or relating to the Goods and/or services provided by Seller. Said indemnification by Seller shall include, without limitation, Claims relating to lost profits, lost business interests, labor costs, environmental remediation, cleanup or containment costs, reasonable attorney fees, expenses and arbitration fees.
12. TAXES. Prices stated in the Purchase Order include all applicable taxes and duties, except such state and local sales and use taxes, which by statute, must be passed on to the purchaser. To the extent applicable, such sales and use taxes shall be separately itemized by the Seller.
13. RISK OF LOSS. The risk of loss or damage to the goods shall not pass to Packgen until the goods are received at the destination specified in the Purchase Order. Risk of loss or damage to rejected Goods or Goods for which acceptance has been revoked, shall pass to Seller at time of rejection or revocation of acceptance.
14. DELEGATION; ASSIGNMENT. Seller shall not delegate or assign its duties or obligations in relation to this Purchase Order without Packgen’s prior written consent. Any such delegation or assignment attempted without Packgen’s previous written consent shall effect, at Packgen’s option, a cancellation of all of Packgen’s obligation hereunder. All claims for moneys due or to become due from Packgen shall be subject to deduction by Packgen, for any setoff or counterclaim arising out of this or any other of Packgen’s orders with Seller, whether such setoff or counterclaim arose before or after any such assignment by Seller.
15. WAIVER OF LIENS. Seller hereby warrants that the Goods sold to Packgen are free and clear of any and all liens and or encumbrances. Seller waives and relinquishes all liens and claims statutory or otherwise which Seller now has or may hereafter have as a result of labor and materials furnished by Seller in relation to the Goods.
16. DEFAULT. Without restricting Packgen’s rights under other provisions of this agreement or applicable law, upon the happening of any one or more of the following events, Packgen shall forthwith have the unrestricted right to cancel and terminate the within contract without cost or liability to Packgen: i) Seller’s breach of any warranty addressed herein (including express and implied warranties, as well as any other warranty imposed at law or otherwise); ii) Seller’s inability to meet obligations as they become due; iii) filing of voluntary or involuntary petition of bankruptcy by or against Seller; iv) institution of legal proceedings against Seller by creditors or stockholders; v) appointment of a receiver for Seller by any court of competent jurisdiction.
17. GOVERNING LAW. Any dispute regarding this agreement or transaction, or related thereto, shall be governed by the law of the State of Maine, without regard to conflict of law principles. This agreement shall not be governed in whole or in part by the United Nations Convention on Contracts for the International Sale of Goods; As allowed by that convention, the parties specifically disclaim its application.
18. ARBITRATION. Seller consents to and agrees that any and all disputes arising out of this agreement or transaction, or any matter related thereto, shall be heard by an arbitration panel of the American Arbitration Association and that judgment shall be entered on such award. The arbitration shall take place in Portland, Maine.
19. ATTORNEY’S FEES AND COSTS. To the extent that Seller has breached any its obligations hereunder or under applicable law, or because Seller has brought invalid claims against Packgen, or it is otherwise necessary for Packgen to enforce its rights against Seller in relation to its purchase of the Goods, Packgen shall be entitled to an award of reasonable attorney’s fees, expenses, and arbitration fees. This right shall be in addition to, and not in limitation of, any right Packgen may have under applicable law.