1. General. This purchase order (“P.O.”) is an offer by Sterling Site Access Solutions, LLC or an affiliated entity (“Sterling” and “Buyer”) to the seller listed on the P.O. (“Seller”) and acceptance is limited to its provisions without additions, deletions, or other modifications. Buyer will not be responsible for goods or services delivered without issuance of Sterling Purchase Order Terms and Conditions and such issuance is deemed as acceptance by Seller.
2. Acceptance. This P.O. may be accepted by delivering the goods or services by the specified delivery date. This P.O. is limited to the terms and conditions: (i) specified herein; (ii) specified on the face of the P.O.; and (iii) if applicable, specified in Buyer’s written agreement with Seller. Acceptance of all or part of the goods or services shall not (i) waive Buyer’s right to cancel or return all or any portion of the goods or services that do not conform to the P.O.; (ii) bind Buyer to accept future shipments of goods or services; or (iii) preclude Buyer from making any claim for damages or breach of warranty. All purchases are subject to inspection and rejection by Buyer notwithstanding prior payment. Rejected goods will be returned at Seller’s expense for transportation both ways and all related labor and packing costs. No goods returned as defective by Buyer shall be replaced by Seller without written permission of an authorized agent of Buyer. Buyer may at any time, by written order, make changes within the general scope of this P.O. in any one or more of the following: (i) drawings, designs or specifications; (ii) method of shipment or packing; and (iii) place of delivery. If any such change causes an increase or decrease in the cost of, or the time required for, the performance of this P.O., Seller may request an adjustment in the price or delivery schedule, or both, and the P.O. shall be modified in writing accordingly upon agreement by the Parties.
3. Entire Agreement. The P.O. represents the entire understanding between Buyer and Seller, shall supersede all prior understandings and agreements relating to the subject matter hereof, and may be amended only by written mutual agreement of the Parties. In the event of a conflict between the terms and conditions of this P.O. and any amendment thereto, the Purchase Order shall govern and control.
4. Cancellation and termination. Prior to the date of shipment of Product by Seller, Buyer may terminate all or part of the purchase order or contract to which these terms and conditions are attached for its convenience upon written notice to Seller. If Buyer cancels any such purchase order or contract due to, after Buyer’s inspection, Product rejected for failure to be as specified and warranted and in relation to such non-conforming Product the Buyer may, at its election and in addition to any other legal or equitable remedies available to Buyer, return some or all of such Product at Seller’s expense.
5. Compliance with Laws. Seller warrants to Buyer that the goods and services shall be provided, manufactured, shipped, stored, and otherwise handled in strict compliance with all applicable laws, codes, ordinances, regulations, executive orders, and industry standards. Seller makes all warranties contained in the Uniform Commercial Code.
6. Title. Title conveyed to Buyer by Seller shall be good and merchantable and its transfer rightful. The goods and services shall be delivered free and clear of any lien, security interest, claim or encumbrance whatsoever.
7. Hold Harmless and indemnification. Seller agrees to defend, indemnify and hold harmless Buyer, officers, directors, shareholders, affiliated entity, employees, agents, representatives, successors and assigns (“Indemnitees”) from all losses, liabilities, damages, and/or expenses which may be sustained or claimed against an Indemnitee: (i) arising out of defective goods or negligent services hereby ordered including labor of Buyer’s employees, freight, handling, restocking, demolition, destruction or disposal; (ii) any damages, penalties, adjustments or allowances incurred or paid by Buyer arising out of or resulting from Seller’s breach or negligent acts or omissions or any breach of Seller’s representations and warranties hereunder; (iii) arising from injury to employees of Seller, Buyer, or a Buyer’s customer while in the course of providing goods or services to Buyer or affiliated entity or a customer of Buyer; (iv) arising from Seller’s use of automobiles, trucks, or heavy equipment; or (v) based on a claim that the goods or services supplied by Seller infringe a patent, copyright, or trademark or misappropriate a trade secret of a third party. Seller shall, at the request of Buyer or affiliated entity, defend any such claim, action, or lawsuit. If the goods or services become, or in Seller’s opinion, are likely to become the subject of any infringement claim, Seller shall do one of the following at Seller’s option and expense: (i) procure for Buyer the right to continue using the goods or services; (ii) replace or modify the goods or services so that they become non-infringing without losing functionality; or (iii) terminate Buyer’s right to use the goods and/or services, whereupon Seller will refund to Buyer all amounts paid for such goods or services and other costs. The indemnity under this Paragraph 7 shall survive delivery and acceptance of goods and services and termination or expiration of this P.O. and/or Buyer’s written agreement with Seller, if applicable.
8. Price and sales taxes. The price for goods and services ordered hereby shall be the price stated on the P.O. Price is inclusive of applicable taxes, freight, all packaging and handling, transportation, and insurance unless explicitly indicated on the face of this P.O. or agreed to in writing by Buyer. Any tax, tariff or duty which is imposed upon Seller by any governmental authority and included by the Seller in the price shall be separately stated on Seller’s invoice.
9. Invoices and payments. Seller shall issue a separate invoice for each separate shipment and send it promptly to ap@sterlingsolutions.com. Each invoice shall include: (i) the P.O. number; (ii) Buyer’s part numbers; and (iii) quantities shipped and/or services performed. Undisputed amounts shall be paid pursuant to the payment terms provided on the P.O. and following receipt and acceptance of goods or services and receipt of a correct invoice. Delays in receipt of goods or services, acceptance of goods or services, or a correct invoice will be just cause for Buyer to withhold payment without losing discount privileges. Cash discounts, if any, shall be computed as commencing with receipt of the invoice or goods or services, whichever is later.
10. Delivery. Unless designated otherwise all deliveries are F.O.B. Destination. The goods or services ordered must be received no later than the delivery date specified.
11. Quantities. Quantities of goods or services ordered may not be changed without the prior written approval of Buyer. If the total or any portion of the goods received or services performed either exceeds or falls below the quantities ordered, Buyer shall have the right to reject and return any such shipments, services, or portions thereof at Seller’s expense for transportation both ways and all related labor and packing cost.
12. Packaging and Shipping. All shipping containers shall be packed and packaged to: (i) ensure safe arrival to final destination; (ii) secure the lowest transportation costs; (iii) comply with requirements of common carriers; (iv) meet Buyer’s written instructions; and (v) meet the requirements of all applicable laws, ordinances, rules and regulations. Each package or container shall be marked clearly to show this P.O. number, ship date, and name of consignee and consigner as applicable. An itemized packing list shall be included in each container
13. Warranties. Seller warrants that the goods or services delivered, the packaging, labeling and sorting thereof, any installation, repair, and maintenance of goods, and any other performance pursuant to this P.O., will: (i) be free of infringement of property rights of third Parties, including without limitation, any patent, trademark, trade name, copyright or right of publicity, or misappropriate any trade secret or violate any license or any other rights; (ii) be free from defects in material and workmanship, be of even kind and quality and run without variation; (iii) be of merchantable quality; (iv) be fit for the intended use of the Buyer, Buyer’s customers and any other intended uses of such goods and shall be new and not refurbished; and (v) be of grade and performance in conformity with all specifications, blueprints, designs, drawings, samples, models, descriptions, instructions, industry standards, and other items referred to in this P.O.
14. Inspection. Buyer shall have the right to inspect and test the goods or services ordered at any time, including during the manufacture and construction, or preparation, notwithstanding any prior payment or inspection. Defective goods or services not in compliance with Buyer’s drawings, specifications or standards may at any time be rejected even though such goods or services may have previously been inspected and accepted. Without limiting any rights it may have, Buyer at its sole option may require Seller, at Seller’s expense to: (i) promptly repair or replace any or all rejected goods and/or services or (ii) refund the fees paid for any or all rejected goods and/or services. All such rejected goods will be held for Seller’s prompt instruction and at Seller’s risk. Rejected goods will be transported for return to Seller or destroyed at Seller’s cost. Nothing contained herein shall relieve in any way Seller from the obligation of testing, inspection, and quality control. Payment for goods or services prior to inspection shall not constitute acceptance thereof and is without prejudice to all claims Buyer may have against Seller or any other party.
15. Right to Cover. If Seller repudiates this P.O. or fails to make delivery within the time specified herein, time being of the essence in connection with this P.O. (or, if no time of delivery has been specified, within a reasonable time after acceptance by Seller) or if Buyer rightfully rejects the goods or services or justifiably revokes acceptance thereof, then with respect to any and all goods or services involved, Buyer may pursue any remedy available including, without limitation, cancellation of this P.O. in whole or in part. In addition to recovering so much of the price as has been paid and irrespective of whether Buyer has cancelled this P.O., Buyer may “cover” and have damages as to goods and services. Buyer may “cover” by making, in good faith and without unreasonable delay, any reasonable purchase of or contract to purchase goods or services in substitution for those due from Seller.
16. Limitation of Liability. Buyer’s liability to pay any amount to Seller for any reason shall not exceed the amount Buyer has agreed to pay Seller for the goods or services. BUYER SHALL NOT BE LIABLE TO SELLER FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES OR COMMERCIAL LOSSES ARISING FROM THE PURCHASE OF GOODS AND/OR SERVICES REGARDLESS OF THE CAUSE OF ACTION OR THE FORM OF THE CLAIM FOR DAMAGES, AND EVEN IF BUYER IS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.
17. Confidential Information. Buyer’s confidential and proprietary information includes, without limitation, its business plans; manufacturing processes; business strategies; marketing plans; industry and competitive information; technology, product and product information, pricing and cost arrangements and agreements with Buyer, distributors, customers, suppliers, licensers and licensees; information relating to its customer base; and information concerning employees and financial information. All such confidential and proprietary information shall (a) remain the property of Buyer, (b) be carefully preserved and maintained by Seller at its expense, and (c) be promptly returned to Buyer or satisfactorily accounted for upon completion of this P.O. or upon Buyer’s written demand.
18. Force Majeure. Failure of Buyer to take shipments of goods or receive services hereunder, if occasioned by fire, explosion, flood, war, accident, interruption of or delay in transportation, labor trouble, epidemic or pandemic, governmental regulation, or any other circumstances of like or different character beyond Buyer’s reasonable control, or if occasioned by partial or complete suspension of operations at any of Buyer’s offices or other business locations, shall not subject Buyer to any liability to Seller by reason thereof, but, at Buyer’s option, the total quantity covered by this P.O. may be reduced by the extent of omitted shipments or services, or the specified delivery period may be extended by a time equal to that during which shipments or services shall be so omitted and such shipments shall then be made or services performed during the period of extension.
19. Waiver. A waiver of any term, condition or default of this P.O. shall not be construed as a waiver of any other term, condition, or default.
20. Governing Law.This P.O. shall be governed by and interpreted in accordance with the laws of the state where the goods or services are being delivered. All terms used in this P.O. which are defined in the Uniform Commercial Code as adopted in the State in which the goods or services are being delivered shall have the same meaning herein as such code.
21. Attorney Fees. Buyer shall be entitled to receive reimbursement from Seller of the attorney fees and costs it incurs to in connection with enforcement of this P.O. or any related dispute or claim arising directly or indirectly out of the P.O. or the goods or services provided hereunder.
22. Electronic Transmission. The Parties intend that the P.O. can be electronically transmitted and accepted.
23. Work on Buyer’s Premises or Premises of Customer of Buyer. If Seller’s performance of the P.O. involves or results in the presence of the Seller’s employees or agents on the premises of the Buyer of a customer of the Buyer, Seller shall perform work or services consistent with the work rules and procedures as adopted by Buyer or Buyer’s customer for such facility or site and Seller shall indemnify, hold harmless, and indemnify the Buyer and a customer of the Buyer against any and all liability arising out of such work. Seller shall maintain insurance in amounts acceptable to Buyer or a customer of Buyer for workers compensation, third party liability, professional liability, automobile, property damage and employer’s liability reasonably necessary to protect Buyer and any customer of Buyer and such policies should provide for waiver of subrogation. Sellers agrees to provide a certificate of insurance naming Buyer as additional insured party and to execute an independent contractor agreement with Buyer before performing work on premises of Buyer or a customer of the Buyer.
24. Miscellaneous. Seller shall not assign this P.O. or any rights, nor delegate any duties to any third party. Any attempt to do so will be void. This P.O. shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns. Each party is an independent contractor of the other party.
Effective as of August 12, 2020