Purchase Order These terms and conditions apply to the purchase of the goods, services, or both as described on the purchase order document (collectively, “Product”) to which these terms and conditions are attached and/or which references these terms and conditions (these terms and conditions and the purchase order document are collectively, this “Purchase Order”). These terms and conditions and the purchase order document are interpreted together as a single agreement; however, if there is an irreconcilable conflict, these terms and conditions will control. This Purchase Order is issued by the Swan Products). The “Supplier” is the entity identified on this Purchase Order that is providing Product to Swan.
Acceptance of Purchase Order This Purchase Order is deemed accepted, upon the earlier of, (a) Supplier’s return of an acknowledgment of this Purchase Order (except that no additional or different terms or conditions thereon will apply), (b) Supplier’s commencement of performance or (c) five (5) days from Supplier’s receipt of this Purchase Order, unless Swan receives Supplier’s written rejection of this Purchase Order within such five (5) day period. Any acceptance of this Purchase Order is limited to acceptance of the express terms contained in this Purchase Order. No additional or different terms or attempted exclusions or modifications by way of any document, proposal, course of performance or otherwise will be effective against Swan in the absence of the express written consent of Swan. Any attempt by Supplier to add, exclude or modify the terms contained in this Purchase Order will be deemed material, is objected to and will be of no effect. Neither the submission of this Purchase Order nor anything contained in this Purchase Order will be construed to be an acceptance or confirmation of any prior or subsequent document, proposal or course of performance. This Purchase Order will be a rejection and counter-offer with respect to any such document, proposal or course of performance.
Entire Agreement; Amendments and Waiver This Purchase Order supersedes all written or oral prior agreements or understandings with respect thereto. This Purchase Order may not typed name and/or typed signature blocks do not constitute a written instrument within the context of this Section. No waiver will be implied from conduct or failure to enforce rights, and no waiver will be effective unless in writing signed on behalf of the party against whom the waiver is asserted. Swan and Supplier intend that this Purchase Order be construed without any rule requiring construction or interpretation against Swan whose representatives drafted this Purchase Order.
Changes Swan may, by written notification, direct changes in the drawings, designs, specifications, method of shipment or packing, quantity, or time or place of delivery of any Product. Only authorized Swan procurement representatives may issue changes to this Purchase Order. If any change causes an increase or decrease in the cost of, or the time required for, performing this Purchase Order, an equitable adjustment will be made in this Purchase Order price, delivery dates or both, and this Purchase Order will be modified in writing accordingly. Any claim for adjustment under this Section may, at Swan’s option, be deemed to be waived unless asserted in writing, including the amount of the claim, and delivered to Swan within ten (10) days from the date of the receipt by Supplier of the Swan directed change to this Purchase Order. Notwithstanding any disagreement between the parties regarding the impact of a change, Supplier will proceed diligently with its performance under this Purchase Order pending resolution of the disagreement.
Delivery TIME IS OF THE ESSENCE WITH RESPECT TO FULFILLMENT OF THIS PURCHASE ORDER. Supplier will deliver Product on the dates and in the quantities specified in this Purchase Order. Supplier will preserve, pack, package and handle Product ordered by Swan so as to protect Product from loss or damage. In the event of any delays to the scheduled delivery date, Supplier will notify Swan of such delay and work diligently to remedy such delay immediately. In the event of any delay in delivery of more than five (5) days, Swan may, at its sole option, cancel or reschedule this Purchase Order in whole or in part without penalty or liability. Deliveries will be made at the ship-to address designated in this Purchase Order, and title and risk of loss to Product will pass to Swan as described on the purchase order document. If the document is silent on the passage of title and risk of loss, then title and risk of loss to Product will pass to Swan upon its receipt at the designated ship-to address.
Acceptance of Product All Products ordered and shipped hereunder is subject to acceptance by Swan at the ship-to address designated in this Purchase Order. Swan will have thirty (30) days after delivery of any Product to accept or reject Product (the “Acceptance Period”). Payment for any Product will not constitute an acceptance of Product. Acceptance of any Product will not preclude a subsequent claim with respect to Product. If, during the Acceptance Period, Swan identifies any Product that does not conform to Swan’s specifications or instructions or to this Purchase Order (“Nonconforming Product”), Swan may, at its sole option, (a) require Supplier to correct any Nonconforming Product by repair, replacement or re performance, at Supplier’s risk and expense, within seven (7) business days after the request of Swan, (b) return any Nonconforming Product to Supplier, at Supplier’s risk and expense, and recover from Supplier the price for the Nonconforming Product or (c) utilize any Nonconforming Product and require an appropriate reduction in the price for the Nonconforming Product. Upon delivery of repaired, replacement or re-performed Product, Swan will accept or reject such Product in accordance with this Section.
Continuity of Supply Supplier will provide Product to Swan in the quantity and quality ordered by Swan as set forth in this Purchase Order. In support of this obligation, Supplier will adopt and implement commercially reasonable continuity of business plans and procedures.
Design and Process Changes Supplier will make no changes to the design, materials, manufacturing location, or processes specified in this Purchase Order or documents referenced in it, or if none, those in place when this Purchase Order is issued, without the prior written approval of an authorized Swan procurement representative. Changes to a process include, but are not limited to, changes to the production process, changes in manufacturing equipment, or changes between a manual and automated process. This requirement applies whether or not the change affects costs and regardless of the type of change, including product improvements.
Product Pricing Pricing for Product is set forth in this Purchase Order. The pricing includes (a) all taxes except those taxes that Supplier is required by law to collect from Swan, including state or local sales or use tax, (b) all packaging and freight to the ship-to address designated in this Purchase Order, and (c) all customs duties, fees or charges. Sales and use taxes, if any, will be separately stated in Supplier’s invoices unless Swan has indicated in this Purchase Order that Product ordered is exempt from such taxes. Supplier represents and warrants that the pricing is the lowest prices Supplier charges for items similar to such Product, after taking into account differences arising solely from freight or other destination-specific charges. If Supplier charges any other person or entity a lower price for items similar to any Product, Supplier will notify Swan and apply the lower price to Swan’s purchases of such Product.
Invoicing Supplier will invoice Swan for Product ordered at the time of shipment. Invoices will be sent to the invoice-to address designated in this Purchase Order, and Swan will pay invoices as described on the purchase order document. If the document is silent on the payment of invoices, then Swan will pay invoices within ninety (90) days of the date it receives Supplier’s invoice. Swan will have the right to offset against any payments owed by it to Supplier, any amounts Supplier may owe to Swan. If any invoice submitted by Supplier is found to be in error, an appropriate adjustment will be made to the invoice or the next succeeding invoice following discovery of the error and the resulting payment or credit will be issued promptly.
Confidential Information Each party will keep confidential the terms of this Purchase Order and all disclosures made by the other containing business or technical information relating to the subject matter hereof, and neither will disclose such information to anyone else nor use it for the receiving party’s separate benefit. This confidentiality obligation will not apply to information that the receiving party can show (a) was already known to the receiving party at the time of disclosure by the disclosing party, without any duty of confidentiality to the disclosing party, (b) is disclosed to the receiving party by a third party who had the right to make such disclosure without any confidentiality restrictions, (c) is or has become, through no fault of the receiving party, generally available to the public, (d) is independently developed by the receiving party without access to, or use of, the disclosure, or (e) is required to be disclosed due to legal process, governmental order, government regulation, or like demand; provided that the receiving party has, unless legally prohibited, given prior notice to the disclosing party of the process, order, or demand in order to provide the disclosing party with a reasonable opportunity to oppose the same. This confidentiality obligation will continue for five (5) years from the date of receipt. The receiving party will return or destroy, at the disclosing party’s discretion, the disclosing party’s business and technical information, and all copies thereof, upon the disclosing party's written request and will certify in writing to such return or destruction within thirty (30) days.
Records and Audit For at least five (5) years from the date of last delivery, Supplier will (a) maintain records, documentation and other information suitable to reflect Supplier’s compliance with this Purchase Order and (b) provide Swan and its representatives and auditors access to such records, documentation and other information as necessary to audit Supplier’s compliance with this Purchase Order.
Inspection Upon Swan’s request, Supplier will provide Swan with specific information, in such detail as Swan may reasonably request, as to the location and method of manufacturing or assembly of Product. Swan and its representatives and auditors will have the right, upon prior notice, to visit the location for purposes of inspecting the location and method of manufacturing or assembly of Product at any stage of manufacture, assembly or delivery.
Warranty Supplier represents and warrants to Swan and each of its parent companies, subsidiaries and affiliates and to its and their respective officers, directors, employees, agents, personnel, customers and end users (collectively, “Swan Warrantees”) that Supplier has the right, authority, experience and ability to enter into this Purchase Order and to perform its obligations hereunder, and that such performance will not violate any other agreement or understanding by which Supplier is bound.
Product Warranty Supplier additionally represents and warrants to the Swan Warrantees that, on the date of delivery of Product to Swan and for the longer of Supplier’s standard warranty period and the period of two (2) years from the date of delivery (the “Warranty Period”), all Product, including all repaired, replacement and re-performed Product, and the materials incorporated into all Product will: (a) be free from defects in material, workmanship, manufacture and design; (b) conform to Swan’s specifications and instructions; (c) be merchantable, be fit for the intended purpose and operate as intended; (d) comply with all applicable industry standards and all applicable laws, rules, regulations, approvals and orders, including the laws regarding slavery and human trafficking of the country or countries in which Swan and Supplier do business; (e) be new and unused; and (f) be free and clear of all liens, claims, security interests and other encumbrances. In the event of a breach of the foregoing warranty which occurs during the Warranty Period, Swan may, at its sole option, (a) require Supplier to correct each Product that does not conform to the warranty by repair, replacement or re performance, at Supplier’s risk and expense, within seven (7) business days after the request of Swan, (b) return each Product that does not conform to the warranty to Supplier, at Supplier’s risk and expense, and recover from Supplier the price for each such Product, or (c) utilize a Product that does not conform to the warranty and require appropriate reduction in the price for such Product. The foregoing will be in addition to any indemnification obligation of Supplier under this Purchase Order.
Infringement Warranty Supplier additionally represents and warrants to the Swan Warrantees that all Product, including all repaired, replacement and re performed Product, and the process or processes of manufacture of all Product will not: (a) infringe any patent, copyright, or trademark rights; (b) unlawfully disclose, use or misappropriate any trade secret rights; or (c) violate any other third party intellectual property rights. If an injunction or restraining order is issued, or if Swan is otherwise unable to use any Product, Supplier will, at its risk and expense, (w) obtain for Swan the right to continue using or possessing Product, (x) modify Product to cure any infringement, unlawfulness or violation; provided such modification does not adversely affect Swan’s use of Product or (y) replace Product with a substantially similar item which is free of any infringement, unlawfulness or violation. The foregoing will be in addition to any indemnification obligation of Supplier under this Purchase Order.
Indemnification Supplier will, at its expense, indemnify, defend and hold Swan and each of its parent companies, subsidiaries and affiliates and its and their respective officers, directors, employees, agents, personnel, customers and end users (collectively, “Swan Indemnitees”) harmless, from any and all loss, damage, liability, demand, claim, cost or expense, including attorneys' fees, and the cost of settlement, judgment or verdict incurred by or demanded from any of the Swan Indemnitees arising out of, resulting from or in consequence of Supplier’s negligence, willful misconduct or breach of the terms of this Purchase Order, including breach of any of Supplier’s warranties. In no event will Supplier enter into any settlement without Swan’s prior written consent.
Liability Insurance Supplier will, at its expense, procure and maintain liability insurance with the coverage and limits which are required, or if no requirement, which are commercially reasonable, for the activities contemplated under this Purchaser Order. If Swan requests, Supplier will provide to Swan certificate(s) of insurance evidencing the coverage and limits required under this Section. In no event will the coverage or limits of any insurance required under this Section be deemed to limit or diminish Supplier’s obligations or liability to Swan under this Purchase Order.
Termination for Convenience Swan may terminate this Purchase Order in whole or in part at any time for its sole convenience upon ten (10) days' prior written notice. If Swan terminates for its convenience, Swan's sole liability to Supplier, and Supplier's sole and exclusive remedy, is payment for (i) Product received and accepted by Swan before the date of termination and (ii) Product ordered, but not received by Swan before the date of termination, subject to Swan’s acceptance of such Product.
Termination for Cause Either party may terminate this Purchase Order in whole or in part at any time for cause in the event the other party commits a material breach of any of its obligations, which the breaching party fails to cure within thirty (30) days after receiving written notice of such breach from the non-breaching party.
Survival All provisions of this Purchase Order which by their nature should apply beyond the term of this Purchase Order will remain in force after any termination or expiration of this Purchase Order, including those provisions addressing indemnification, insurance, warranty, confidentiality, records, audit, survival, choice of law and dispute resolution.
Independent Contractors This Purchase Order is not intended by the parties to constitute, create, give effect to, or otherwise recognize a joint venture, partnership, or formal business organization of any kind. Each party will act as an independent contractor, and neither will act as an agent of the other for any purpose. Neither party has the authority to assume or create any obligation, express or implied, on behalf of the other.
Notices Any disclosures or notices required or permitted hereunder will be in writing and will be deemed effectively given upon receipt of such disclosures or notices by the receiving party. Such disclosure or notices will be given by personal delivery, certified mail with postage prepaid and return receipt requested, or prepaid delivery using a recognized private courier, to each party at its address set forth in this Purchase Order. Disclosures or notices given to Swan will be copied to Swan Products, LLC, 999 Riverview Drive, Suite 325, Totowa, NJ 07512. Attention: Probyn Forbes
Assignment This Purchase Order may not be assigned (by operation of law or otherwise) or transferred, in whole or in part, by either party without the prior written consent of the other party; provided, however, that Swan will be entitled to assign this Purchase Order, without the prior written consent of Supplier, to any of its parent companies, subsidiaries or affiliates or to any successor to its business (or to the business unit within Swan that is the primary user of Product purchased (hereunder) pursuant to a merger, consolidation, sale of assets or otherwise, if such successor assumes Swan’s obligations hereunder. Except as specifically provided herein, this Purchase Order is not intended to and does not create any rights in favor of any person or entity not a party hereto.
Choice of Law This Purchase Order and all transactions hereunder, will be construed and interpreted in accordance with the laws of the State of Delaware, U.S.A. without regard to or application of its principles or laws regarding conflicts of laws, and excluding the United Nations Convention on Contracts for the International Sale of Goods.
Dispute Resolution The federal or state courts in the state of New Jersey, U.S.A. will have exclusive jurisdiction to adjudicate any dispute arising out of or related to this Purchase Order.
Rights and Remedies All of Swan’s rights and remedies set forth in this Purchase Order are in addition to, and will in no way limit, any other rights and remedies that may be available to Swan at law, in equity or otherwise.
Compliance with Laws and Integrity Supplier will comply with all applicable laws, rules, regulations, approvals and orders, including the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act, and the California Transparency in Supply Chains Act of 2010 and all import and export control laws and regulations, in performing this Purchase Order. Supplier will maintain and comply with an integrity and compliance program effective in preventing and correcting ethical violations and in maintaining compliance with all applicable laws, rules, regulations, approvals and orders, including the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act, the California Transparency in Supply Chains Act of 2010 and all import and export control laws and regulations.
Severability If any term or provision of this Purchase Order will for any reason be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability will not affect any other term or provision hereof, and this Purchase Order will be interpreted and construed as if such term or provision, to the extent the same will have been held to be invalid, illegal or unenforceable, had never been contained herein.