Purchase Order Terms & Conditions
The word "Buyer" whenever used herein means MMS, Inc. The word "Seller" whenever used herein means the party to whom this purchase order is addressed.
1) This order subject to the delivery date set forth herein unless changed by written agreement. If orders cannot be filled as indicated, we are to be promptly notified. Time is of the essence in this contract, and if delivery of items or rendering of services not completed by the time set forth herein or as changed by agreement, the Buyer reserves the right without liability, in addition to its other rights and remedies, to terminate this contract by notice effective when received by Seller as to stated items not yet shipped or services not yet rendered, and to purchase substitute items for services elsewhere and charge the Seller with any loss incurred. Any provisions herein for delivery of articles or the rendering of services by installments shall not be construed as making the obligations of Seller severable. Shipments sent C.O.D. without Buyer's written consent will not be accepted and will be at Seller's risk.
2) Charges for boxing, packing or crating not allowed unless otherwise agreed in writing. All shipments must contain on packaging exterior a complete description of contents and/or sample.
3) Seller shall not assign this order, or any part thereof or interest therein, or subcontract any part of the work or service herein ordered, without the prior written consent of Buyer.
4) No agreement or understanding to modify this contract shall be binding upon the Buyer unless in writing and signed by Buyer's authorized agent. All specifications, drawings, and data submitted to Seller with this order are hereby incorporated herein and made a part hereof.
5) The Buyer reserves the right at any time to make changes in any one or more of the following: (a) Specifications, drawings, HTML specifications, target audience / list parameters and data incorporated in this contract where the items to be furnished are to be specially manufactured for the Buyer; (b) Methods of shipment, data delivery or packing; (c) Place of delivery; and (d) Time of delivery (e) Time of broadcast. If any such change causes an increase or decrease in the quantity of records or cost of or the time required for performance of this contract, an equitable adjustment shall be made in the contract price or delivery schedule, or both. Any claim by Seller for adjustment under this clause shall be deemed waived unless agreed in in writing by both parties. Seller agrees to perform an Email Broadcast only with Buyers approval.
6) Materials, items or equipment purchased hereunder are subject to inspection, testing and approval at the Buyer's destination. Buyer reserves the right to reject and refuse acceptance of items which are not in accordance with the instructions, specifications, drawings and data or Seller's warranty (express or implied). Buyer will charge Seller for the cost of inspecting and testing merchandise rejected. Items not accepted will be returned to Seller at Seller's expense. Payment for any article hereunder shall not be deemed an acceptance thereof. Buyer shall have the right (but not the obligation) to inspect the materials, items or equipment purchased hereunder at Seller's plant at all times if it so desires, whether during of after completion of manufacture.
7) Seller hereby warrants that the items and services to be furnished hereunder will be in full conformity with Buyer's specifications, drawings and data or Seller's samples, and that items furnished hereunder will be fit for the use intended by Buyer. Seller agrees that this warranty shall survive acceptance of the items. Said warranties shall in addition to any warranties of additional scope given to Buyer by Seller.
8) Unless otherwise agreed in writing all computer programs, lists and other data, furnished to the Seller by the Buyer, or unconditionally appropriated to the contract, or specifically paid for by the Buyer, shall be and remain the property of the Buyer, shall be maintained in good condition by the Seller, shall be used only in filling orders from the Buyer, shall be subject to removal upon the Buyer's instructions (in which event Seller shall prepare such property for shipment and shall re-deliver the same to Buyer in as good condition as when received by Seller, reasonable wear and tear expected), shall be held a Seller's sole risk. Whenever practical each item of such property shall be plainly marked or otherwise adequately identified by Seller as Buyers property.
9) The confidential information ("Confidential Information") of Buyer shall include without limitation its Lists, Data, Email Suppression File, HTML files, pricing, software code, vendors, employee information, proposals and all correspondence between Seller and Buyer. Your Confidential Information shall include all information provided to Buyer that is not publicly available; provided, that Confidential Information shall not include (a) information of discloser that is or becomes in the public domain through no fault of the recipient; (b) information received by recipient from a third party without an obligation of confidentiality; (c) information independently developed by recipient without use of discloser's Confidential Information; (d) information required to be disclosed by law or court order. Each party retains all right, title and interest in its Confidential Information. The recipient shall not, without the discloser's prior written consent, disclose to any third party any Confidential Information of discloser or use the Confidential Information for any purpose not permitted, and each recipient shall protect the Confidential Information of discloser from third parties by using at least a reasonable degree of care. Each party shall be responsible for any breach of this Agreement by its permitted contractors, employees and agents.
10) Seller represents that the price charged for the items or services covered by this order is the lowest price charged by the Seller to buyers of a class similar to Buyer under conditions similar to those specified in this order and that prices comply with applicable government regulations in effect at time of quotation, sale or delivery. Seller agrees that any price reduction made in merchandise covered by this order subsequent to the placement of this order will be applicable to this order.
11) If routing of freight shipment is not specified by the Buyer, the Seller shall be responsible for shipping via method and routing providing the cheapest rate of transportation. Seller shall also be responsible for loss or damage resulting from improper loading, blocking or staying of goods for transit.
12) Unless otherwise agreed in writing, Seller shall not make material commitments or production arrangements in excess of the amount or in advance of the time necessary to meet Buyer's delivery schedule. Goods shipped to Buyer in advance of schedule may be returned to Seller at Seller's expense.
13) Fire, labor trouble, embargo, explosion, floods, war, accidents, interruption of or delay in transportation, partial or complete suspension of plant operations and any occurrence beyond Buyer's reasonable control which in any way interrupts or interferes with the normal operations of Buyer's business, shall release Buyer from any obligations to accept delivery hereunder; but Buyer may at its option either extend delivery period and accept such deliveries or cancel such deliveries at no obligation to Buyer.
14) In the event any part or all of the service of work herein ordered Is performed on the Buyer's premises. Seller shall indemnify the Buyer against any and all costs, attorneys fees, claims, suits or demands on account of injuries to persons or property, including (but not limited to) employees of Seller and property of Seller, arising out of or during the performance of any work or service hereunder.
15) If price is not shown on the Buyer's Purchase Order it must be communicated in writing and returned to Buyer for approval before executing order.
16) It is understood and agreed that if Seller is acting as subcontractor for Buyer, any loss sustained by Buyer or liability which may be asserted against Buyer by its customer for seller's failure to execute the order in conformity with its provisions shall render Seller liable to Buyer. And it is further understood and agreed that Seller shall promptly reimburse Buyer for the full amount of any loss, damage or liability arising out of Buyer's customers claim.
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