Definitions. “Purchase Order” means the terms and conditions of this agreement and all items and conditions stated in any documents attached by Top-Shelf Fixtures, LLC to this Purchase Order. “Top-Shelf Fixtures, LLC” means Top-Shelf Fixtures, LLC and “Vendor” means the party identified as licensee or contractor. “Merchandise” means all articles, material, work, or services to be furnished by Vendor under this Purchase Order.
Terms of Purchase Order. This offer is made solely on the terms and conditions stated in this Purchase Order and no others. Vendor’s acceptance is limited to the terms and conditions of this Purchase Order. Any additional or different terms or conditions proposed by Vendor shall be void and of no effect unless expressly accepted in writing by Top-Shelf Fixtures, LLC. Top-Shelf Fixtures, LLC hereby objects to any proposed changes. Upon acceptance by Vendor, this Purchase Order is the exclusive and complete agreement between the parties for the purchase and sale of Merchandise.
Acceptance of Purchase Order. Any of the following acts by Vendor constitute Vendor’s acceptance of this Purchase Order.
Signing the acknowledgement copy of the Purchase Order and returning it to Top-Shelf Fixtures, LLC,
furnishing of any Merchandise under this Purchase Order,
acceptance of any prepayment for the Merchandise, or
commencement of performance under the Purchase Order.
Warranties. Vendor expressly warrants that the Merchandise will (i) conform to the specifications, drawings, samples or other description furnished or specified by Top-Shelf Fixtures, LLC; (ii) be merchantable (iii) be of good material and workmanship and free from any defects in design, workmanship and materials; (iv) be fit for the purpose required by Top-Shelf Fixtures, LLC; (v) not infringe or wrongfully use any patent, trademark, trade secret or copyright, and (vi) conform to the other requirements of this Purchase Order. These warranties shall survive Top-Shelf Fixtures, LLC’s inspection, testing, and acceptance of, and payment for the Merchandise. These warranties shall run to Top-Shelf Fixtures, LLC, its successors, assigns, customers and to the users of its products.
Additional Remedy for Excessive Failures: Vendor is responsible for ensuring the quality of their Merchandise. Any defects not acceptable per the agreed criteria will be the responsibility of the Vendor to replace at no cost to Top-Shelf Fixtures, LLC, including cost of rework and freight.
Additional Remedy for Extreme Failures. If the failure is excessive and the Merchandise causing a failure or rejection has already been made into finished good products, sold to customers and/or distributors, Top-Shelf Fixtures, LLC may estimate the cost of repair and collect from Vendor such amount or obtain a percentage of components free of charge equivalent to the cost estimated.
Compliance with Laws. Vendor shall comply with the applicable provisions of all federal, state, and local laws, regulations and ordinances with the design, manufacture and sale of the Merchandise, including the Fair Labor Standards Act, the Occupational Safety and Health Act and the Federal Trade Commission rules and regulations.
Vendor will cooperate with Customs if information is requested. Vendor will provide valid Certificates of Origin for goods. Vendor will provide reimbursement to Top-Shelf Fixtures, LLC for any costs associated with invalid documentation, including additional duties paid and applicable interest and penalties. Applicable for Domestic “USA” vendors.
Inspection. Top-Shelf Fixtures, LLC may inspect at Vendor’s place of business during customary business hours all Merchandise which is subject to this Purchase Order. All Merchandise will be subject to final inspection and approval at destination by Top-Shelf Fixtures, LLC. Top-Shelf Fixtures, LLC reserves the right to reject and return or hold, at Vendor’s expense subject to Vendor’s disposal, all Merchandise not conforming to Vendor’s warranties. Top-Shelf Fixtures, LLC shall have a minimum of 30 days to inspect the Merchandise.
Rejections. If Top-Shelf Fixtures, LLC finds at any time that any of the Merchandise is not in conformity with the requirements of this Purchase Order, including the warranties stated above, Top-Shelf Fixtures, LLC may reject the Merchandise or revoke any prior acceptance of the Merchandise. Top-Shelf Fixtures, LLC may then, at its option, either return the Merchandise and take a credit or require prompt correction or replacement of any defective or nonconforming Merchandise. Vendor shall be liable for any damages, including consequential damages, caused by any nonconformity.
Insurance. Vendor shall maintain adequate insurance, including products liability and comprehensive general liability insurance, covering the design, manufacture and use of the Merchandise.
Packaging. Vendor shall be responsible for all packaging. Packaging will comply with good commercial practice and applicable carrier’s tariffs. Merchandise will be prepared for shipment and packaged to prevent damage or deterioration during shipment and in-plant handling and storage at Top-Shelf Fixtures, LLC and other’s designated facility. The price includes all charges for packaging.
Shipment. Vendor shall ship the Merchandise according to Top-Shelf Fixtures, LLC shipping instructions on the face of this Purchase Order. Vendor shall not ship Merchandise in advance of the specified shipping date. Vendor shall enclose a packing slip in a clearly marked carton. The price includes all charges for transportation to the named place of delivery. Partial shipments will not be accepted, unless specifically authorized by Top-Shelf Fixtures, LLC in writing. Top-Shelf Fixtures, LLC may return all Merchandise shipped past the cancellation date or Merchandise that is otherwise not shipped exactly in accordance with the requirements of this Purchase Order. If Top-Shelf Fixtures, LLC accepts deliveries after the required delivery date has passed, Top-Shelf Fixtures, LLC may direct the Vendor to ship to the delivery point set forth in this Purchase Order by the most expeditious means. Any excess shipping charges due to Vendor’s failure to follow Top-Shelf Fixtures, LLC shipping instructions shall be paid by Vendor. Vendor shall pay all in-bound and out-bound shipping charges for Merchandise returned for any reason.
Late Shipping Penalty. Vendor agrees to deliver Merchandise on a timely basis to Top-Shelf Fixtures, LLC at the named place of delivery in accordance with the prearranged delivery and/or pick-up dates the parties agreed. For all shipping terms, Merchandise must be delivered to Top-Shelf Fixtures, LLC within five days of the delivery date committed to by Vendor. If Vendor is in breach of this “Right Time” shipping commitment, Top-Shelf Fixtures, LLC reserves the right to charge Vendor 1% goods for free on the next shipment on each instance of breach. If same shipment is late more than 10 days another 2% will be added for every 5 working days late to a maximum of 10%.
Invoicing and Payment. A separate invoice noting the Purchase Order number and line item number shall be issued for each shipment. Top-Shelf Fixtures, LLC may compute credit and discount periods from the latter of the date of receipt of the correct invoice or the date of the receipt of the Merchandise to the date Top-Shelf Fixtures, LLC payment has been made.
Set Off. Top-Shelf Fixtures, LLC may set off any amount owing at any time from Vendor to Top-Shelf Fixtures, LLC, whether arising under this Purchase Order or otherwise, against any amounts payable at any time by Top-Shelf Fixtures, LLC to Vendor under this Purchase Order.
Changes. Top-Shelf Fixtures, LLC may at any time make changes within the general scope of this Purchase Order. If any changes increase or decrease the cost of or the time required for the performance of this Purchase Order, an equitable adjustment may be requested by Vendor or Top-Shelf Fixtures, LLC in the price and/or delivery schedule, or both. No request by Vendor for adjustment will be valid unless submitted to Top-Shelf Fixtures, LLC in a form reasonably acceptable to Top-Shelf Fixtures, LLC within twenty (20) days from the date of the change.
Risk of Loss. Vendor will be liable for any loss, destruction, or damage to the Merchandise until delivered to the named place. Vendor will be liable for any loss or destruction or damage to any of Top-Shelf Fixtures, LLC other property furnished to Vendor by Top-Shelf Fixtures, LLC. Vendor will return any such property in as good condition as when received, except for reasonable wear and tear or for the utilization of it in accordance with the provisions of this Purchase Order. Top-Shelf Fixtures, LLC property shall include any molds, dies, gauges or other tools as shown on the face of this Purchase Order.
Termination. Top-Shelf Fixtures, LLC may terminate all or any part of this Purchase Order at any time (i) upon Vendor’s breach of any warranty, (ii) upon Vendor’s failure to perform any of its obligations under this Purchase Order, (iii) in the event Top-Shelf Fixtures, LLC’s business is interrupted due to any act of nature, accident, war, fire, storm, flood, shortage or unavailability of equipment, materials or labor delays in transportation and any other event, whether of the kind specifically enumerated above, which is not reasonably within the control of Top-Shelf Fixtures, LLC, or (iv) if Vendor suffers a material adverse change of financial condition. Upon Top-Shelf Fixtures, LLC’s termination of this Purchase Order, Top-Shelf Fixtures, LLC shall only be obligated to pay Vendor the balance due, if any as of the date of termination for previous deliveries of Merchandise in complete accordance with the terms and conditions of this Purchase Order.
Vendor Information. Any information disclosed by Vendor to Top-Shelf Fixtures, LLC in connection with the design, manufacture, sale or use of the Merchandise shall not be deemed to be confidential or proprietary.
Top-Shelf Fixtures, LLC Information. Vendor shall use the information or data supplied by Top-Shelf Fixtures, LLC only to accomplish the work covered by this purchase Order. Vendor shall maintain the absolute confidentiality of this, and technical data furnished to Vendor by Top-Shelf Fixtures, LLC. Vendor shall not make copies of the data, and upon completion of this Purchase Order, Vendor will return to Top-Shelf Fixtures, LLC all Top-Shelf Fixtures, LLC information or data.
Independent Contractor. Vendor’s relationship to Top-Shelf Fixtures, LLC in the performance of this Purchase Order is that of an independent contractor. Neither the Vendor nor any of the persons furnishing materials or performing work or services which are required by this Purchase Order are employees of Top-Shelf Fixtures, LLC within the meaning of or the application of any Federal or State law, including unemployment insurance laws, industrial accident laws, or other industrial or labor laws.
No Assignment of Rights or Delegation of Obligations. Vendor shall not assign any of its rights or delegate any of its obligations under this Purchase Order without written permission from Top-Shelf Fixtures, LLC.
Partial Invalidity. If any provision of this Purchase Order shall, to any extent, be invalid or unenforceable, the remainder of this Purchase Order shall not be affected by the invalidity or unenforceability, unless the provision is essential to this Purchase Order.
Governing Law. This Purchase Order shall be governed by and construed in accordance with the laws of the State of California.
Venue and Jurisdiction. For purposes of venue and jurisdiction, this Purchase Order shall be deemed made and to be performed in the City of Chino, California.
Modification in Writing. This Purchase Order may be modified only in writing executed by the party to this Purchase Order against whom enforcement of such modification is sought.
Successors-in-interest and Assigns. Subject to any restriction on assignment and delegation contained in this Purchase Order, this Purchase Order shall be binding upon and shall inure to the benefit of the successors-in-interest and assigns of each party to this Purchase Order. Nothing in this paragraph shall create any rights enforceable by any person not a party to this Purchase Order unless the rights are expressly granted in this Purchase Order to other specifically identified persons.
Headings. The headings of the various Paragraphs of this Purchase Order have been inserted only for convenience and shall not be deemed in any manner to modify or limit any of the provisions of this Purchase Order or be used in any manner in the interpretation of this Purchase Order.
Time of Essence. Time and strict and punctual performance are of the essence with respect to each provision of this Purchase Order.
No Prior Understandings. This Purchase Order contains the entire agreement between the parties to this Purchase Order with respect to the subject matter of this Purchase Order and supersedes all prior understandings, agreements, representations, and warranties, if any, with respect to such subject matter.
Notices. All notices or other communications required or permitted to be given to a party to this Purchase Order shall be in writing and shall be personally delivered, telecopied, sent by registered or certified mail, postage prepaid, return receipt requested, or sent by an overnight express courier service that provides written confirmation of delivery, to such party at its address as set forth on the face of this Purchase Order. A notice or other communication shall be deemed given, delivered and received upon its actual receipt, except that if it is mailed in accordance with this Paragraph, then it shall be deemed given, delivered and received 48 hours after mailing. Any party to this Purchase Order may give notice of change of its address to the other Party to this Purchase Order.
No Waiver. No delay or omission in the exercise of any right or remedy shall impair the right or remedy or be construed as a waiver, a waiver consent to or approval of any act shall not be deemed (i) to waive or render unnecessary consent to or approval of any other or subsequent act or (ii) a waiver of Top-Shelf Fixtures, LLC’s right to hold the Vendor liable for any loss or damage resulting therefrom. Any waiver of a default under this Purchase Order must be in writing. Payment of any invoice or account arising from this Purchase Order shall not constitute either an acceptance of Merchandise or a waiver of any terms and conditions of this Purchase Order.
Indemnification. Vendor shall indemnify Top-Shelf Fixtures, LLC and Top-Shelf Fixtures, LLC’s customers against all liabilities, costs, expenses, attorney’s fees and claims (collectively the “Claims”) and all costs, expenses and attorney’s fees incurred in the defense of any such Claims and any action or proceeding brought on any such Claims arising from (a) any breach or default in the performance of any obligation to be performed by the Vendor under this Purchase Order, (b) any negligence of Vendor or any of Vendor’s agents, employees, representatives, licensees, or contractors concerning any obligation to be performed under this Purchase Order, (c) the design, manufacture, sale or use of the Merchandise purchased under this Purchase Order, (d) the infringement of any patent, copyright, trademark, service mark, or trade name in connection with the design, manufacture, sale, or use of such Merchandise, and (e) any violation of any federal, state, or local law, regulation or ordinance in connection with the design, manufacture, sale, or use of such Merchandise. If any action or proceeding is brought against Top-Shelf Fixtures, LLC and/or Top-Shelf Fixtures, LLC’s customers by reason of any Claim, Vendor, upon notification from Top-Shelf Fixtures, LLC and/or Top-Shelf Fixtures, LLC’s customers, shall defend the action or proceeding at Vendor’s sole cost by counsel satisfactory to Top-Shelf Fixtures, LLC.
Cumulative Rights. The provisions of this Purchase Order are in addition to, and not in place of, any rights Top-Shelf Fixtures, LLC has under applicable law, including those under the Uniform Commercial Code.
Force majeure. It shall not be a default and neither Top-Shelf Fixtures, LLC nor Vendor shall be liable for a failure to perform hereunder due to or arising from causes or events beyond a Party’s control and without the fault or negligence of such Party, including acts of God, wars, riots, embargoes, acts of civil and military authorities, fire, typhoon, floods, earthquakes, and political turmoil. Vendor shall notify Dacor in writing within five (5) calendar days after the beginning of such cause. To the extent that, and so long as the obligations of either Party are affected by any such cause or event, such obligations shall be suspended.
Survival. The covenants, representations and warranties of Vendor under this Purchase Order shall survive any cancellation or termination of this Purchase Order.
Noncompliance. Vendor shall promptly notify Top-Shelf Fixtures, LLC if Vendor expects to fail to comply with any of the requirements of this Purchase Order.