Purchase Order Terms and Conditions

ANY PURCHASE ORDER (“ORDER”) PLACED BY ANTHONY & SYLVAN CORPORATION OR ANY AFFILIATED COMPANY (COLLECTIVELY, “BUYER”) WITH A SELLER OF GOODS AND/OR A PROVIDER OF SERVICES (“SELLER”) IS SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS, WHICH ARE INCORPORATED THEREIN BY REFERENCE AND WHICH MAY NOT BE VARIED EXCEPT BY A WRITING SIGNED BY BUYER'S DULY AUTHORIZED REPRESENTATIVE.

1. TIME OF DELIVERY IS OF THE ESSENCE. BUYER RESERVES THE RIGHT TO REFUSE ANY GOODS AND TO CANCEL ALL OR ANY PART OF THE GOODS ORDERED IF SELLER FAILS TO DELIVER ALL OR ANY PART THEREOF IN ACCORDANCE WITH THE TERMS OF THE ORDER. ACCEPTANCE OF ANY PART OF THE GOODS ORDERED SHALL NOT BIND BUYER TO ACCEPT FUTURE SHIPMENTS NOR DEPRIVE IT OF THE RIGHT TO RETURN GOODS ALREADY ACCEPTED.
   
   
2. SELLER'S COMMENCEMENT OF WORK ON GOODS OR SHIPMENT THEREOF, WHICHEVER OCCURS FIRST, SHALL BE DEEMED AN EFFECTIVE MODE OF ACCEPTANCE OF BUYER'S OFFER TO PURCHASE CONTAINED IN THE ORDER. BY ACCEPTING THE ORDER, SELLER ACKNOWLEDGES THAT IF GOODS COVERED BY THE ORDER ARE USED IN THE MANUFACTURE OF, OR SOLD UNDER, BUYER'S TRADEMARKS AND TRADE NAME, ANY DEFECT IN SUCH GOODS MAY OCCASION SPECIAL DAMAGE TO BUYER.
   
   
3. ACCEPTANCE OF ALL OR ANY PART OF THE GOODS SHALL NOT BE DEEMED TO BE A WAIVER OF BUYER'S RIGHT EITHER TO CANCEL OR TO RETURN ALL OR ANY PORTION THEREOF BECAUSE OF FAILURE TO CONFORM TO THE ORDER, INCLUDING BUT NOT LIMITED TO SPECIFICATIONS, DRAWINGS, SAMPLES, OR OTHER DESCRIPTION FURNISHED OR SPECIFIED BY BUYER, OR BECAUSE OF DEFECTS, LATENT OR PATENT, OR OTHER BREACH OF WARRANTY OR TO MAKE ANY CLAIM FOR DAMAGES, INCLUDING MANUFACTURING COSTS AND LOSS OF PROFITS OR OTHER SPECIAL DAMAGES OCCASIONED TO BUYER. SUCH RIGHTS SHALL BE IN ADDITION TO ANY OTHER REMEDIES PROVIDED BY LAW.
   
   
4. IF PRICE IS NOT SPECIFIED ON THE FACE OF THE ORDER, SELLER AGREES TO CHARGE THE PRICE LAST QUOTED OR INVOICED TO BUYER FOR LIKE QUANTITIES, OR THE PREVAILING MARKET RATE, WHICHEVER IS LOWER.
   
   
5. PAYMENT TERMS ON THE FACE OF THE ORDER AND CASH DISCOUNT, IF ANY, SHALL EACH BE COMPUTED FROM THE DATE OF RECEIPT OF INVOICE, OR THE DATE OF RECEIPT OF GOODS, WHICHEVER IS LATER.
   
   
6. SELLER SHALL PLACE THE APPROPRIATE BARCODE, OR ACCEPTED PRODUCT IDENTIFIER UNDER ANY SUCCESSOR SYSTEM, ON ALL GOODS, POINT OF PURCHASE PACKAGING AND SHIPPING PACKAGING TO BE DELIVERED TO BUYER.
   
   
7. SELLER SHALL DEFEND AND INDEMNIFY BUYER AND HOLD IT HARMLESS FROM AND AGAINST ALL CLAIMS, LIABILITY, LOSS, DAMAGE, AND EXPENSE INCLUDING REASONABLE COUNSEL FEES, RESULTING FROM ANY ACTUAL OR CLAIMED TRADEMARK, PATENT OR COPYRIGHT INFRINGEMENTS, OR ANY LITIGATION BASED THEREON, WITH RESPECT TO ANY PART OF THE GOODS COVERED BY THE ORDER. SUCH OBLIGATION SHALL SURVIVE ACCEPTANCE OF GOODS AND PAYMENT THEREFOR BY BUYER.
   
   
8. SELLER EXPRESSLY WARRANTS THAT GOODS COVERED BY THE ORDER ARE OF MERCHANTABLE QUALITY AND FIT AND SAFE FOR INTENDED USE. ALL GOODS SHALL CONFORM IN ALL RESPECTS TO SAMPLES, IF ANY, PREVIOUSLY FURNISHED TO, AND APPROVED BY, BUYER. ACCEPTANCE OF THE ORDER SHALL CONSTITUTE AN AGREEMENT UPON SELLER'S PART TO DEFEND AND INDEMNIFY BUYER AND HOLD IT HARMLESS FROM ALL CLAIMS, LIABILITY, LOSS, DAMAGE AND EXPENSE, INCLUDING REASONABLE COUNSEL FEES, INCURRED OR SUSTAINED BY BUYER BECAUSE OF FAILURE OF GOODS TO CONFORM TO SUCH WARRANTIES OR BECAUSE OF THE NEGLIGENCE OF SELLER, ITS AGENTS AND EMPLOYEES OR OF THIRD PARTIES. SUCH INDEMNITIES SHALL BE IN ADDITION TO ANY OTHER REMEDIES PROVIDED BY LAW.
   
   
9. SELLER AGREES TO PROVIDE BUYER WITH EVIDENCE OF COMPREHENSIVE GENERAL LIABILITY INSURANCE COVERAGE, INCLUDING BUT NOT LIMITED TO CONTRACTUAL, INDEPENDENT CONTRACTORS AND PRODUCT LIABILITY/COMPLETED OPERATIONS COVERAGE INCLUDING VENDOR’S ENDORSEMENT. SUCH COVERAGE SHALL BE IN AN AMOUNT NOT LESS THAN $1,000,000 PER EACH OCCURRENCE FOR DAMAGE TO PROPERTY OR BODILY INJURY OR BOTH. IF THE ORDER COVERS THE FURNISHING OF SERVICES, SELLER ALSO AGREES TO PROVIDE BUYER WITH EVIDENCE OF WORKER'S COMPENSATION COVERAGE, PUBLIC LIABILITY AND MOTOR VEHICLE LIABILITY INSURANCE COVERAGE IN LIMITS OF NOT LESS THAN $300,000/$500,000 BODILY INJURY AND $250,000 PROPERTY DAMAGE. 10. SELLER AGREES THAT ALL INFORMATION HERETOFORE OR HEREAFTER FURNISHED OR DISCLOSED TO BUYER BY SELLER IN CONNECTION WITH THE PLACING OR FILLING OF THE ORDER, IS FURNISHED OR DISCLOSED AS A PART OF THE CONSIDERATION FOR THE ORDER, THAT SUCH INFORMATION IS NOT, UNLESS OTHERWISE AGREED TO BY BUYER IN WRITING, TO BE TREATED AS CONFIDENTIAL OR PROPRIETARY AND THAT SELLER SHALL ASSERT NO CLAIMS BY REASON OF THE USE OR DISCLOSURE OF SUCH INFORMATION BY BUYER, ITS ASSIGNS, OR ITS CUSTOMERS. SELLER SHALL KEEP CONFIDENTIAL ALL INFORMATION, DRAWINGS, SPECIFICATIONS, OR DATA FURNISHED BY BUYER OR PREPARED BY SELLER AT BUYER'S REQUEST SPECIFICALLY IN CONNECTION WITH THE ORDER. SELLER SHALL NOT IN ANY MANNER ADVERTISE OR PUBLISH THE FACT THAT IT HAS AGREED TO FURNISH, OR HAS FURNISHED, TO BUYER GOODS, MATERIALS OR SERVICES HEREIN ORDERED WITHOUT THE PRIOR WRITTEN CONSENT OF BUYER.
   
   
10. SELLER REPRESENTS THAT ANY GOODS COVERED BY THE ORDER HAVE BEEN MANUFACTURED IN ACCORDANCE WITH THE REQUIREMENTS OF SECTIONS 6, 7 AND 12 OF THE FAIR LABOR STANDARDS ACT, AS AMENDED, AND OF REGULATIONS ISSUED THEREUNDER. SELLER ALSO REPRESENTS THAT THE GOODS OR SERVICES COVERED BY THE ORDER HAVE BEEN MANUFACTURED, OR WILL BE PERFORMED, AS APPLICABLE, IN ACCORDANCE WITH THE REQUIREMENTS OF THE OCCUPATIONAL SAFETY & HEALTH ACT OF 1970 AND THE REGULATIONS AND STANDARDS ISSUED THEREUNDER, AND WITH APPLICABLE FEDERAL, STATE, AND LOCAL STATUTES, LAWS AND REGULATIONS. SELLER AGREES TO OBTAIN ANY AND ALL PERMITS OR LICENSES REQUIRED BY LAW PRIOR TO DELIVERY. SELLER WILL INDEMNIFY AND HOLD BUYER HARMLESS FROM AND AGAINST ALL LIABILITY, LOSS, DAMAGE AND EXPENSE, INCLUDING REASONABLE COUNSEL FEES, INCURRED OR SUSTAINED BY BUYER BY REASON OF THE FAILURE OF GOODS OR SERVICES TO CONFORM TO THE REQUIREMENTS IN THIS PARAGRAPH 11 AND PARAGRAPHS 12 AND 13, BELOW.
    
    
11. ALL GOODS, WRAPPERS AND CONTAINERS WILL BEAR MARKINGS AND LABELS REQUIRED BY APPLICABLE FEDERAL, STATE AND LOCAL LAWS AND REGULATIONS AND BY BUYER'S INSTRUCTIONS CONTAINED IN THE ORDER.
    
    
12. IF ANY OF GOODS COVERED BY THE ORDER ARE SUBJECT TO THE TEXTILE FIBER PRODUCTS IDENTIFICATION ACT, THE FLAMMABLE FABRICS ACT, THE FAIR PACKAGING AND LABELING ACT, THE FEDERAL FOOD, DRUG AND COSMETICS ACT, THE FEDERAL HAZARDOUS SUBSTANCES ACT, THE CONSUMER PRODUCT SAFETY ACT, THE POISON PREVENTION ACT OR ANY SIMILAR LEGISLATION, SELLER GUARANTEES THAT SUCH GOODS WILL NOT BE MISBRANDED OR ADULTERATED NOR FALSELY NOR DECEPTIVELY ADVERTISED, LABELED, BRANDED OR INVOICED, AND SELLER'S INVOICE SHALL CONTAIN EITHER THE SEPARATE GUARANTIES PROVIDED FOR UNDER SUCH ACTS OR AN APPROPRIATE STATEMENT THAT A CONTINUING GUARANTY HAS BEEN FILED IN ACCORDANCE WITH SUCH ACTS AND THE APPLICABLE RULES AND REGULATIONS OF THE APPROPRIATE GOVERNMENTAL AGENCY.
    
    
13. THE ORDER AND THESE TERMS AND CONDITIONS CONTAIN THE ENTIRE AGREEMENT OF THE PARTIES AND MAY NOT BE MODIFIED OR TERMINATED ORALLY. NO CLAIMED MODIFICATION, TERMINATION OR WAIVER OF ANY OF THE TERMS HEREOF SHALL BE BINDING ON BUYER UNLESS IN WRITING SIGNED BY A DULY AUTHORIZED REPRESENTATIVE OF BUYER. ACCEPTANCE OF THE ORDER IS LIMITED TO ACCEPTANCE OF THE EXPRESS TERMS OF THE OFFER CONTAINED IN THE ORDER AND THESE TERMS AND CONDITIONS. ANY PROPOSAL BY SELLER FOR ADDITIONAL OR DIFFERENT TERMS, OR ANY ATTEMPT BY SELLER TO VARY, IN ANY DEGREE, ANY OF THE TERMS OF THE OFFER CONTAINED IN THE ORDER SHALL NOT OPERATE AS A REJECTION OF THE OFFER AND THE OFFER SHALL BE DEEMED ACCEPTED BY SELLER WITHOUT SUCH ADDITIONAL OR DIFFERENT TERMS. IF THE ORDER SHALL BE DEEMED AN ACCEPTANCE OF A PRIOR OFFER BY SELLER, SUCH ACCEPTANCE IS EXPRESSLY CONDITIONED ON SELLER'S ASSENT TO ANY ADDITIONAL OR DIFFERENT TERMS CONTAINED HEREIN.
    
    
14. THE WORK THAT IS THE SUBJECT MATTER OF THE ORDER IS EXPRESSLY AGREED BETWEEN THE PARTIES TO BE A WORK FOR HIRE AND IS THE EXCLUSIVE PROPERTY OF BUYER. ANY AGREEMENTS FOR WORK SUBCONTRACTED OUT UNDER THE ORDER SHALL BE CONSISTENT WITH THESE TERMS AND CONDITIONS AND ANY DOCUMENTS NECESSARY TO PERFECT BUYER’S RIGHT TO THE WORK WILL BE OBTAINED FOR THE BUYER BY THE SELLER.
    
    
15. THE ORDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACORDANCE WITH, THE LAWS OF THE STATE OF OHIO.

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