November 1, 2012
- Purchase Orders. Orders for goods or products to be provided by Vendor (the "Products") to Continental Materials, Inc. ("CMI") require a written purchase order or other agreement setting forth the quantity, price and delivery terms for the Products (the "Order"). These terms and conditions are incorporated into all such Orders. CMI may place Orders by mail, email, facsimile or orally by telephone, provided that all such oral telephone Orders are promptly confirmed in writing by mail, email or facsimile. The Order may specify additional terms or conditions, and in the event of conflict the additional terms and conditions shall govern unless expressly agreed otherwise in writing by both parties.
- Delivery. Time is of the essence in the performance of the Order. Delivery of Products will be in accordance with the instructions (place, time and manner) set forth on the Order. Any delivery not in conformity with the Order may at CMI.s discretion be returned to Vendor, who shall bear the related expenses and risks. In the event of non-conformity, CMI has the right to request immediate replacement or repair of the non-conforming Products, in addition to any other remedy described in this Agreement.
- Invoices. All Vendor invoices shall be in a format reasonably acceptable to CMI, describing the Products which have been supplied. Invoices shall be sent to: Continental Materials, Inc., [1614 Old York Road, Abington, Pennsylvania 19001, Attn: Mark Brock]. All invoices are subject to verification. Payment of any invoice does not constitute inspection of Products and shall not operate as a waiver of CMI.s rights under these terms and conditions. Payment shall be made within [thirty (30)] days of receipt of invoice.
- Termination. CMI may terminate any Order for cause by notice in writing if: (a) Vendor commits any material breach of any Order and does not take all necessary and reasonable steps to cure the breach within [ten (10)] days of written notice of default; (b) Vendor seeks relief, or its creditors bring action against it or its direct or indirect parent, under any bankruptcy or insolvency law; (c) Vendor ceases or suspends operation of its business; or (d) Vendor is a party to a merger, acquisition, or sale as a consequence of which substantially all of its business relating to the performance of the Products is transferred. If an Order is terminated for any reason, sections 5, 7 and 13 of these terms and conditions shall survive termination and shall remain in full force and effect.
- Taxes. Sales tax, if due, must be separately specified on all invoices. Vendor agrees to pay and discharge when due any and all taxes and governmental charges of any kind or character, federal, state, county, or municipal, which may be levied and/or assessed at any time by reason of the Products and interest and penalties, if any, on such taxes or charges, and Vendor will at all times fully protect and save CMI and its successors and assigns harmless from and against any such taxes, governmental charges and interest and penalties thereon and not allow any liens to be assessed against the Products.
- Warranties. Vendor represents that Products are and will be, and all services incidental to the delivery of the Products shall be carried out in compliance with all applicable laws, orders, rules, and regulations of any governmental body or agency having jurisdiction over the performance of Vendor or the Products to be provided, and in a diligent, efficient, and safe and workmanlike manner, in all cases, according to the standards and specification contained in the Order and generally with the best practice applicable in the industry. Without limiting the foregoing, Vendor also agrees to obtain all applicable approvals of any government agency whose authorization or approval is required to sell and/or deliver of the Products to CMI. Vendor represents and warrants that (a) it has good and merchantable title to the Products free and clear of any liens, restrictions, encumbrances or security interests; (b) the Products shall conform to the description and applicable specifications provided by CMI; and (d) the Products are new, free from any defects in design, materials or workmanship, and fit for their intended purpose. If, during the one year period following the date of delivery of Products (the "Warranty Period"), the Products or any portion thereof fail to conform to the requirements of the Order, or are otherwise found to be defective, then, such non-conforming or defective Products or services shall be promptly replaced or re-performed, as applicable, at Vendor's sole cost and expense. Any Products replaced hereunder shall have the warranties herein provided for longer of (i) the remainder of the original Warranty Period or (ii) six (6) months from the date of Delivery of the replaced conforming Products. The warranties set forth herein shall not affect or limit any of CMI.s other rights or remedies provided by applicable law, and shall not be deemed to establish a period of limitation or prescription within which such other rights or remedies must be asserted.
- Indemnification. Vendor shall, to the extent permitted by law, indemnify, defend, and hold harmless CMI from and against any and all claims, demands, complaints or actions of third parties (including employees of the parties or government agencies) arising from or relating to: (a) any services incidental to the delivery of the Products (including personal injury, death, property damage or damage to the environment) to the extent caused arising out of the negligence, willful misconduct, breach of these terms and conditions, or violation of law of or by the Vendor or (b) any non-conforming or defective Product. The claims, demands, complaints, and actions covered hereunder include all settlements, losses, liabilities, judgments, court costs, reasonable attorney's fees, fines, penalties and other litigation costs and expenses arising from or related to such claims, demands, complaints or actions.
- Insurance. Upon request of CMI, Vendor shall supply CMI with written evidence of at least the following limits of specific insurance coverage, in the form of a certificate of insurance issued to CMI: (a) General Liability $1 million per occurrence/$2 million in the aggregate; and (b) Excess/Umbrella $5 million. CMI shall be named as an additional insured on the certificate, which shall provide that the insurance is primary coverage with respect to all insureds and shall not consider any other insurance policies of the insureds as contributory insurance, a waiver of subrogation shall be included, and the certificate shall state that CMI will receive thirty (30) days notice prior to any material change in or cancellation of the policies covered thereby.
- Independent Contractor. These terms and conditions shall not constitute or be deemed to create any relationship of principal or agent; partnership; or joint venture between the parties, it being expressly understood that the relationship between CMI and Vendor is that of independent contracting parties only. Except as expressly set forth herein, neither party assumes any liability for the other party. Vendor is an independent contractor with respect to CMI.
- No Assignment. Neither Vendor nor CMI may assign any of its rights or obligations under the Order, whether by operation of law or otherwise, without the prior express written consent of the other party.
- Entire Agreement. These terms and conditions, and any document attached hereto, constitute the entire agreement between CMI and Vendor and shall not be amended except in a writing signed by both CMI and Vendor.
- Governing Law, Venue and Jurisdiction. These terms and conditions, and any Order attached hereto or to which they otherwise apply, shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania applicable to contracts made and to be performed therein, exclusive of the choice of law or conflict of laws provisions thereof. Any action or proceeding seeking to enforce any provision of, or based on any right arising out of, the Order or these terms and conditions may be brought against any of the parties in the courts of the Commonwealth of Pennsylvania, or, if it has or can acquire jurisdiction, in the United States District Court for the Eastern District of Pennsylvania, and each of the parties consents to the jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein.