Standard Purchase Order Terms and Conditions
1. APPLICABILITY. These purchase order terms and conditions (“Terms”) along with the accompanying quote, purchase order, confirmation of acceptance and invoice (collectively the “Sales Confirmation”) are the only terms which shall govern the purchase of goods and/or services (collectively, “Goods”) by BARRETT LIMITED LLC (“Barrett”) to Buyer. Notwithstanding anything herein to the contrary, if a written contract signed by Barrett and Buyer is in existence covering the sale and purchase of the Goods covered in this Terms, the terms and conditions of said contract shall prevail only to the extent they are inconsistent with these Terms. The Sales Confirmationand these Terms (collectively referred to hereinafter as this “Agreement”) constitute the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, representations and warranties, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
2. DELIVERY.Goods will be delivered within a reasonable time after the receipt of Buyer’s purchase order or other form of purchase submitted to Barrett, subject to availability of Goods or by such date indicated in the Sales Confirmation. Unless otherwise agreed in writing by the parties, Barrett shall deliver the Goods to Buyer’s designated location (the “Delivery Point”) using Barrett’s standard methods for packaging and shipping such Goods. Buyer shall promptly take delivery of the Goods upon Barrett’s notice to Buyer that the Goods have been delivered to the Delivery Point. Buyer shall be responsible for all unloading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point. Barrett may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order. If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed on Barrett’s notice, or if Barrett is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Barrett, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
3. NON-DELIVERY. The quantity of any installment of Goods as recorded by Barrett on dispatch is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary. Barrett shall not be liable to Buyer for any non-delivery of Goods unless Buyer gives written notice to Barrett of the non-delivery within five (5) calendar days (excluding nationally recognized holidays) of the date when the Goods would in the ordinary course of events have been received. Any liability of Barrett for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice with respect to such Goods to reflect the actual quantity delivered in Barrett’s sole discretion.
4.QUANTITY. If Barrett delivers to Buyer a quantity of Goods of up to ten (10) percent (10%) more or less than the quantity set forth in the Sales Confirmation, Buyer shall not be entitled to object to or reject the Goods or any portion of them by reason of the surplus or shortfall and agrees to pay for such Goods at the price set forth in the Sales Confirmation adjusted pro rata.
5. SHIPPING TERMS. Delivery shall be made FOB [domestic shipping point] unless otherwise agreed and reflected in the terms on the face of a Sales Confirmation. For purposes of this Agreement, “domestic” shall mean the United States of America.
6. TITLE AND RISK OF LOSS. Title and risk of loss passes to Buyer upon delivery of the Goods to the domestic (i.e., United States) shipping point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Barrett a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing, and Buyer hereby authorizes and consent to Barrett executing and filing the applicable financing statements describing the Goods, and any other document that may be requested by Barrett to evidence Barrett’s security interest. The security interest granted under this provision constitutes a purchase money security interest under the Florida Uniform Commercial Code.
7. MODIFICATION.These Terms may only be amended or modified in a writing that specifically states that it amends these Terms and is signed by an authorized representative of Buyer and an authorized officer of Barrett.
8. INSPECTION AND REJECTION OF NONCONFORMING GOODS.
a) Buyer shall inspect the Goods within five (5) business days (excluding nationally recognized holidays) of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Barrett in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by Barrett. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Buyer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents.Defects that fall within customary trade tolerances shall not be grounds for rejection of the Goods as nonconforming.
b) If Buyer timely notifies Barrett of any Nonconforming Goods, Barrett shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship the Nonconforming Goods to Barrett at Barrett’s expense. If Barrett exercises its option to replace Nonconforming Goods, Barrett shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point. Buyer acknowledges and agrees that the remedies set forth in this section are Buyer’s exclusive remedies for the delivery of Nonconforming Goods.
c) Except as provided in this section, all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Barrett.
9. PRICE. Buyer shall purchase and pay for the Goods at the price(s) (the “Price(s)”) and by the date indicated on Barrett’s invoice. All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Barrett’s income, revenues, gross receipts, personnel or real or personal property or other assets.
10. PAYMENT TERMS. Buyer shall pay all invoiced amounts due to Barrett in accordance with payment terms stated on Barrett’s invoice. Buyer shall make all payments in U.S. Dollars. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Barrett for all costs incurred in collecting any late payments, including, without limitation, collection fees and attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Barrett does not waive by the exercise of any rights hereunder), Barrett shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for three (3) business days following Barrett’s notifying Buyer of non-payment. Buyer may not and waives any right to withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Barrett, whether relating to Barrett’s breach, non-performance or otherwise.
11. LIMITED WARRANTY.
a) Barrett shall provide exclusively to Buyer the same warranty and warranty period for the Goods that the manufacturer of the Goods provides to Barrett (“Warranty Period”) and further warrants that the Goods will materially conform to all specifications, drawings and other requirements provided by Buyer to Barrett and that the Goods will be free from material defects in material and workmanship.Defects that fall within customary trade tolerances shall not be grounds for breach of warranty.
b) EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 11(a),] BARRETT MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; or d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
c) Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods. Third Party Products are not covered by the warranty in Section 11 (b). For the avoidance of doubt, BARRETT MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
d) Barrett shall not be liable for a breach of the warranty set forth in Section 11(a) unless: (i) Buyer files a warranty claim, reasonably describing the issue, to Barrett within thirty (30) calendar days of the time when Buyer discovers or ought to have discovered the defect (“Warranty Claim Period”); and, (ii) Barrett is given a reasonable opportunity after receiving the notice of a warranty claim to examine such Goods and Buyer (if requested to do so by Barrett) returns such Goods to Barrett’s designated place of business at Barrett’s cost for the examination to take place there; and (iii) Barrett reasonably verifies Buyer’s claim that the Goods are in breach of the warranty provided in Section 11 (a) above. THE FAILURE OF BUYER TO FILE A WARRANTY CLAIM WITHIN THE WARRANTY CLAIM PERIOD SHALL CONSTITUTE A WAIVER BY BUYER OF ALL CLAIMS WITH RESPECT TO SUCH GOODS.
e) Barrett shall not be liable for a breach of the warranty set forth in Section 11 (a) if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the defect arises because Buyer failed to follow Barrett’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or (iii) Buyer alters or repairs such Goods without the prior written consent of Barrett; or (iv) Buyer fails to timely file a warranty claim in accordance with Section 11 (d) above.
f) Subject to Section 11(d) and Section 11(e) above, with respect to any such Goods during the Warranty Period, Barrett’s obligation will be, in its sole discretion, to either: (i) repair or replace such Goods or (ii) credit or refund the price of such Goods at the pro rata contract rate; provided that, if Barrett so requests, Buyer shall, at Barrett’s expense, return such Goods to Barrett.
g) THE REMEDIES SET FORTH IN SECTION 11(f) SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND BARRETT’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 11(A).
12. LIMITATION OF LIABILITY. IN NO EVENT SHALL BARRETT BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, DIMINUTION IN VALUE, LOSS OF GOODWILL, DOWNTIME, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT BARRETT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.IN NO EVENT SHALL BARRETT’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO BARRETT FOR THE GOODS SOLD HEREUNDER. BECAUSE CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR DIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO BUYER. IF THE LIMITATION OF LIABILITY SET FORTH HEREIN DOES NOT APPLY TO BUYER AS A MATTER OF LAW AND IF BUYER IS DISSATISFIED WITH ANY GOODS, OR WITH ANY OF THESE TERMS, BUYER’S SOLE AND EXCLUSIVE REMEDY IS TO RETURN THE GOODS FOR A REFUND OF THE PURCHASE PRICE PAID TO BARRET.
13. CANCELLATIONS; HOLDS. Buyer may not cancel or reschedule delivery or issue a “hold” order, in whole or in part, without Barrett’s prior written consent and upon terms that will compensate Barrett for any loss resulting from such action, as determined by Barrett in its reasonable discretion. In the absence of obtaining Barrett’s prior written consent, and in addition to the remedies provided in this Agreement, Buyer will be liable for full payment of the Goods which shall become due and payable on the original scheduled delivery date in addition to any storage or other fees Barrett incurs.
14. DEFAULT. In the case of default or breach by Buyer in the performance of any provision of this Agreement, and in addition to the remedies provided in this Agreement or any written contract between Barrett and Buyer, Barrett may cancel any outstanding orders from Buyer and declare all payment obligations immediately due and payable. In such case, and in addition to accelerating payment, Buyer shall be liable to Barrett for all costs and expenses suffered by Barrett including but not limited to reasonable attorneys’ fees and expenses.
15. WAIVER. No waiver by Barrett of any of the provisions of this Agreement is effective unless explicitly set forth in writing signed by Barrett. The failure of Barrett to exercise or delay in exercising any right, remedy, power or privilege granted under this Agreement or by law shall operate as a waiver by Barrett.
16. INDEMNIFICATION. Buyer agrees and shall save and hold Barrett harmless from and against any and all claims, disputes, demands, liabilities, costs, expenses and/or judgments arising in whole or in part, directly or indirectly, out of the negligence or lack of care by Buyer or Buyer’s customers, agents, employees, or invitees involving or relating to the use of the Goods purchased from Barrett.This indemnification shall include all costs, attorneys’ fees and other expenses paid or incurred by or imposed upon Barrett in connection with the defense of any such action. The indemnification rights provided in this Section shall survive for a period of two (2) years from the latter of the date that the parties’ business relationship ceased or pursuant to the date of a termination notice.
17. FORCE MAJEURE. Barrett shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Barrett including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, terrorism, national emergency, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of any product, or power outage.
18. GOVERNING LAW; VENUE. All disputes arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of the State of Florida to apply. Buyer and Barrett hereby submit to the exclusive venue and jurisdiction for the resolution of any such disputes to the Circuit Court of the Fifteenth Judicial Circuit Court, West Palm Beach, Palm Beach County, Florida.
19. SEVERABILITY. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect. Furthermore, the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in effect.
20. ASSIGNMENT; BINDING EFFECT. Buyer shall not assign any of its rights or obligations under this Agreement without the prior written consent of an authorized officer of Barrett. Any purported assignment or delegation in violation of this section is null and void. No assignment or delegation shall relieve Buyer of any of its obligations under this Agreement. This Agreement shall be binding on and inure to the benefit of Barrett and Buyer’s permitted successors and assigns.
21. RELATIONSHIP OF THE PARTIES. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.