Purchase Order Terms and Conditions

1. Parties; Purchase Order Definition; Integration. These Terms and Conditions (“Terms and Conditions”) and the Purchase Order or other separate written agreement provided by Supplier and accepted by Penn Emblem Company (together with any and all appendices, and/or exhibits attached hereto or otherwise issued by Penn Emblem Company in connection herewith, collectively, known hereunder as this “Purchase Order”) by and between Penn Emblem Company (“Buyer”) and Supplier (as defined in the Purchase Order) (Buyer and Supplier, collectively, the “Parties,” and each a “Party”), constitute the entire agreement between Buyer and Supplier, are a complete and exclusive statement, and supersede and replace any and all prior documents, writings, representations, agreements, proposals, promises, or other understandings, oral or otherwise, between the Parties, including but not limited to any prior or subsequent price quote, invoice, or other document furnished by Supplier. To the extent that any other writing between the Parties concerning the subject matter of this Purchase Order conflicts with or is different than these Terms and Conditions, it is rejected by Buyer.
2. Pricing; Formation of Contract; Amendment; Counterparts. The prices for the goods or services are set forth in this Purchase Order. Supplier shall confirm acceptance of this Purchase order in writing. Once accepted by Supplier, the prices are firm. No fees, surcharges or any other similar costs may be added to the prices, unless Buyer agrees to same in writing in advance. These Terms and Conditions shall solely govern this Purchase Order. This Purchase Order may not be modified, amended, or in any way varied with any additional or different terms unless the Buyer and Supplier specifically and expressly agrees in writing that such other terms are accepted. This Purchase Order shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. Counterparts. This Purchase Order may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Purchase Order delivered by facsimile or any other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of same.
3. Change or Cancellation. Buyer may for any reason and at any time by written notice, change, cancel or terminate all or any part of this Purchase Order, and upon Buyer’s request Supplier shall deliver (to the extent reasonably possible) any goods or other deliverables that have been prepared up until the date of such termination. Termination for convenience shall not relieve Supplier or Buyer of its obligations incurred prior to the date of termination. After a termination pursuant to Buyer’s notice, Supplier may request an equitable adjustment on a time and materials basis (but not to include standard stock) for any work then in progress. Supplier shall not be paid for any amount of lost profits on canceled orders, or for any avoidable costs incurred after the date of termination. Any request for an equitable adjustment must be made within thirty (30) days after the date of Supplier’s receipt of notice of cancellation, with reasonable support for the amount requested, and shall be negotiated by the Parties in good faith on an expedited basis.
4. Termination for Cause. Buyer may terminate this Purchase Order in writing, in whole or in part, for failure of Supplier to comply materially with any of the Terms and Conditions. In the event of termination for cause, the Supplier shall be liable to Buyer for any and all damages sustained (a) by reason of the default which gave rise to the termination or (b) as a result of the early termination, including without limitation any incremental cost of re-procuring similar goods or services. This right of termination is in addition to and not instead of any other rights or remedies that the Buyer may have at law or in equity, all of which legal and equitable rights and remedies are reserved cumulatively by Buyer.
5. Inspection. All goods and services are subject to Buyer’s right of inspection for 30 days after receipt; payment for goods and services prior to inspection will not constitute acceptance by Buyer. The Buyer may elect to reject all or a portion of goods or services that, in Buyer’s sole judgment, are found to be non-conforming or inadequate. Acceptance by Buyer of all or any part of the goods or services will not be deemed a waiver to make a claim for damages or a settlement.
6. Warranties. In addition to Supplier’s standard warranties applicable to the goods or services furnished hereunder, Supplier expressly represents and warrants that the goods or services: (a) comply with all applicable laws, codes and regulations, and conform to all specifications and industry standards; (b) are merchantable; (c) are fit for the particular needs or purpose of Buyer as would be reasonably expected for such goods or services, or as otherwise communicated to Supplier; (d) conform in all respects to samples, advertisements and other forms of representation made by Supplier orally or in written documentation provided to, made available to, or in the possession of Buyer; and (e) are not restricted in any way by patents, copyrights, trade or service marks, trade secrets, or any other rights of third parties. If any of the foregoing warranties are breached, Supplier agrees to promptly replace or correct defects and non-conformities, to be liable for all direct, indirect, consequential and other damages suffered by Buyer and any other persons, and to defend and indemnify Buyer from any claim asserted by any person resulting in whole or in part from such breach.
7. Delivery. Supplier agrees to on-time delivery based upon the date or time for the delivery of goods and services set forth in this Purchase Order. If the Purchase Order does not specify a delivery date, Supplier shall provide the goods or service as if time is of the essence. The Buyer may regard the failure to deliver in a timely manner as a breach of these terms and conditions, entitling the Buyer to all rights and remedies at law, in equity, and under the specific remedies of this Purchase Order. Changes, modifications or other delays resulting directly from Buyer’s actions and that prevent Supplier from delivering in a timely manner shall not be considered a breach. If Supplier anticipates a delay in delivery, Supplier shall notify Buyer immediately and shall take all commercially reasonable steps, at Supplier’s own cost, to avoid or mitigate the effect of such delay. Supplier shall email to Buyer all necessary shipment documents (packing lists, bills of lading, invoices) promptly after each shipment leaves Supplier’s dock. Shipment delays may result in cancellation of the Purchase Order. Minimum order quantities in the Purchase Order (if any) shall not be changed.
8. Shipping. Title and risk of loss or damage to items ordered herein shall remain with Supplier until delivered to and accepted by the Buyer. All packaging, carting, transportation, and insurance charges are to be paid for by the Supplier, unless otherwise specifically stated in the Purchase Order. All goods shipped shall be free of liens or encumbrances. Upon request, the Supplier shall furnish satisfactory evidence of freedom from any such liens or encumbrances. The Parties will assist each other in the prosecution of claims against carriers. All shipment documents must include Buyer’s vendor purchase order number and Buyer’s item number(s).
9. Invoicing. Supplier shall invoice Buyer for each shipment of goods under this Purchase Order upon delivery.
10. Payment. Unless otherwise stated herein, payment terms shall be paid per the agreed upon payment terms from the date of receipt of Supplier’s invoice, and payments shall be made by check via mail and/or electronically, in U. S. Dollars. All prices shown are exclusive of any applicable tax. Any tax that Supplier is required to collect shall be stated separately in the invoice and paid by Buyer. Any unforeseen surcharges and/or fees must be listed on the Supplier’s invoice and agreed upon with the Buyer.
11. Export Controls. The Parties shall comply with all applicable U.S. export control laws and regulations, including but not limited to the International Traffic in Arms Regulations (ITAR), 22 CFR Parts 120 through 130, the Export Administration Regulations (EAR), 15 CFR Parts 730 through 799 and/or other restrictions imposed by the Treasury Department’s Office of Foreign Asset Controls, in the performance of this Purchase Order. Supplier shall not disclose or provide to the Buyer or any employee or agent of Buyer any data or technology subject to the licensing provisions of ITAR and EAR, without prior written notice to and advance written approval by the Buyer. If the Supplier sends any such data or technology that is subject to export control, without notice of the applicability of such export control, Buyer has the right to immediately terminate this Purchase Order.
12. Indemnification.
    a. Supplier shall defend and indemnify the Buyer and the Buyer’s officers, employees, agents and representatives (collectively, the “Buyer Indemnitees”) against, and shall hold the Buyer Indemnitees harmless from, any claims and demands made by any third person or entity as a result of injuries, damages, expenses and losses incurred by such a person or entity, including without limitation such person’s or entity’s and the Buyer’s legal costs and attorney’s fees (hereinafter collectively “Liabilities”), arising out of or relating to a claim that anything furnished under this Purchase Order infringed a patent, copyright, trademark, service mark, trade secret, or other legally protected propriety right of a third person. Supplier shall pay all costs, fees, and damages which may be incurred by the Buyer Indemnitee for any such claim or action or the settlement thereof.
    b. Supplier, at its expense, shall defend and indemnify the Buyer Indemnitees against, and shall hold the Buyer Indemnitees harmless from all claims and demands made by any person or entity as a result of Liabilities arising out of or relating to any personal injury or product liability claim relating to or arising from any goods supplied by Supplier hereunder. Supplier shall pay all costs, fees, and damages which may be incurred by the Buyer Indemnitee for any such claim or action or the settlement thereof.
13. Insurance. When the parties enter into current or future Purchase Orders, the Supplier confirms that it has adequate insurance coverage. This insurance does not limit the Supplier’s responsibilities or liabilities, including those related to its own facilities, subcontractors, or shipping arrangements included in the cost of the products.

The required insurance includes, but is not limited to: General Liability, Auto, Umbrella/Excess, Workers’ Compensation, and Employer’s Liability. The Supplier also waives any right to recover from the Buyer through subrogation (or must include such a waiver in the policy).

The Supplier must notify the Buyer in writing at least 30 days before canceling or making any significant changes to the insurance that could negatively affect the Buyer’s Purchase Orders.

The Buyer may request a Certificate of Insurance from the Supplier at any time.

14. Conflict of Interest. Suppler represents and warrants to Buyer that neither it nor any of its principals (officers, directors, owners, partners, key employees, or management or supervisory personnel) has any conflict of interest with Buyer. If any actual or potential conflict of interest arises, Supplier shall inform Buyer promptly and resolve such conflict.
15. Debarment. Supplier certifies that neither it nor any of its principals (officers, directors, owners, partners, key employees, or management or supervisory personnel) is presently debarred, suspended, proposed for debarment, declared ineligible or excluded from participation in this transaction or in any grant, benefit, contract or program by any U.S. federal or state agency.
16. Nondiscrimination.Supplier will not discriminate against any qualified employee or applicant for employment in the performance of this Purchase Order, with respect to hire, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment because of race, religion, color, sex, age, national origin or ancestry, disability, veteran status, sexual orientation, gender identity or expression, or any other basis prohibited by applicable law. Supplier agrees to comply with all applicable federal equal opportunity laws, orders and regulations, including without limitation, Executive Order 11246, as amended, the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1972, the Rehabilitation Act of 1973, the Vietnam Era Veterans Readjustment Assistance Act of 1974, the Americans With Disabilities Act of 1990, and the Civil Rights Act of 1991.
17. Intellectual Property. Each Party shall retain ownership of its respective pre-existing copyrights, trademarks, patents, trade secrets, confidential information, artwork, data, databases, computer programs, and computer coding (collectively, “Intellectual Property”). All Intellectual Property created by Supplier in the performance of this Purchase Order shall belong to Buyer as a work made for hire. Supplier hereby assigns, transfers and grants to Buyer all right, title and interest in and to any and all newly created Intellectual Property.
18. Remedies not Exclusive. The remedies available to Buyer under this Purchase Order are not exclusive, but are in addition to such other remedies available to Buyer by law, or in any way arising out of Supplier’s performance under this Purchase Order.
19. Governing Law. Except as otherwise provided herein, this Purchase Order, and all disputes arising hereunder or related hereto, shall be governed by the laws of the Commonwealth of Pennsylvania, without regard for the conflict of law rules thereof, and the Parties commit to the exclusive jurisdiction and venue of the courts located in the Eastern District of Pennsylvania or the state courts in Philadelphia County, Pennsylvania, USA, to adjudicate any dispute arising under or relating to this Purchase Order. With respect to any suit, action or proceeding arising pursuant to this Purchase Order, each Party hereby irrevocably submits to the jurisdiction of the courts located in the Commonwealth of Pennsylvania, which submission shall be exclusive unless none of such courts has lawful jurisdiction over such proceedings. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Purchase Order.
20. Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS PURCHASE ORDER IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY KNOWINGLY, VOLUNTARILY, IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS PURCHASE ORDER.
21. Force Majeure. A Force Majeure will excuse either Party’s obligations under this Purchase Order for as long as the Force Majeure persists. “Force Majeure” shall mean any act, event, cause, or occurrence rendering the affected Party unable to perform its obligations that is not within the reasonable control of that Party, including governmental action.
22. Assignment. None of Supplier’s duties to perform its obligations under this Purchase Order may be delegated or assigned to another person or party without the prior written consent of the Buyer’s Procure-to-Pay Department. Any attempted assignment by Supplier without such consent will be null and void for all purposes. The Buyer may assign this Purchase Order to any affiliate or successor in interest to all or any part of its operations without prior notice to Supplier.
23. Set-off. All claims for money due or to become due to the Buyer from Supplier may be subject to deduction or set-off by the Buyer against any amounts owed to Supplier from Buyer arising out of this or any other transaction with Supplier. The Buyer may exercise its set-off rights without prior notice to Supplier.
24. Access to Records. Supplier shall preserve and permit Buyer or any of Buyer’s duly- authorized representatives to examine and audit all directly pertinent books, documents, papers and records of Supplier involving transactions related to this Purchase Order for the purpose of making audits, examinations, excerpts and transcripts for a period of three (3) years after final payment hereunder. Supplier agrees to refund to Buyer any overpayments disclosed by any audit.
25. Publicity. Supplier shall not, in any way or in any form, publicize or advertise the fact that Supplier is supplying goods or providing services to Buyer, nor otherwise use the name or the registered marks of the Buyer (or any college, school, division, unit, employee or student thereof), without the prior express written approval of the Buyer. This prohibition extends to inclusion of the name of the Buyer in client lists or press releases
26. Partial Invalidity; Waiver; No Third Party Beneficiaries; Survival. If any provision of this Purchase Order is determined to be invalid, void or unenforceable in any respect, the remaining provisions hereof will continue in full force and effect. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Purchase Order to reflect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible. Buyer’s delay or failure to enforce any term or condition of this Purchase Order shall not operate to waive such term or condition. Any such waiver must be expressed by the Buyer in an authorized writing. This Purchase Order is not for the benefit of any third parties. All provisions that logically ought to survive the termination of this Purchase Order shall survive.
27. Attorneys’ Fees. In the event that any Party institutes any legal suit, action, or proceeding against the other Party arising out of or relating to this Purchase Order, the prevailing party in the suit, action, or proceeding shall be entitled to receive, in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action, or proceeding, including reasonable attorneys’ fees and expenses and court costs.
28. Notices. 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 first page of this Purchase Order (or to such other address that may be designated by the receiving Party from time to time in accordance with this Section). All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Purchase Order, a Notice is effective only (a) upon receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section.