The Following Terms and Conditions apply to the purchase described on the first page of this document. As used below, “Seller” shall refer to the Vendor (as identified on the first page of this document) and “PURCHASER” shall refer to Block Imaging Parts and Service, LLC, Block Mobile Imaging, LLC, or Block Imaging International, Inc. (as the case may be). Now therefore, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt of which is hereby mutually acknowledged, Purchaser enters into this Purchase Order with Seller, for the purpose of timely resale.
1. OFFER AND ACCEPTANCE. This Order is an offer to purchase and is limited to the terms and conditions contained herein. Acceptance of this Purchase Order is expressly and exclusively made conditional on Seller's assent to these terms and conditions. Any different or additional terms and conditions that may appear in Seller's acknowledgement or acceptance shall have no effect. PURCHASER expressly objects to and rejects all inconsistent or additional terms and conditions and limitations contained on any of Seller's forms or other writings. Seller will be considered to have accepted this offer by: 1) accepting funds pursuant to the terms of this agreement, 2) otherwise communicating acknowledgment of acceptance. If Seller shall, instead of accepting this Order, ship any goods in response to this order, PURCHASER may at its sole election, either reject the tendered goods or treat such action as constituting acceptance and assent to the terms and conditions hereof.
2. SHIPMENT. Shipment shall be made in accordance with any specific instructions from PURCHASER on the face of this Order. In the absence of specific shipping instructions, shipment shall be routed via the most economical mode of commercially reasonable transportation available. Material will be classified so that lowest Commodity Rate may be obtained. Unless otherwise agreed to in writing by PURCHASER, prices on the face hereof include all charges for packing, crating and shipping, and Seller is obligated to suitably pack, mark and ship all goods to prevent damage and to conform to requirements of common carriers. Notwithstanding any shipping, FOB or other terms or rights of the PURCHASER included herein, PURCHASER shall have the right to return all freight damaged merchandise to Seller and receive full credit therefore, unless said damage has been caused by the negligence of PURCHASER.
3. DELIVERY. Time is of the essence. Delivery shall be made in quantities and at the time(s) specified in this Order. Deliveries that are not made by the date or dates specified may be canceled or rejected by PURCHASER. If any goods delivered do not conform to this order, PURCHASER may reject such goods or the entire lot received. If this Order requires or authorizes deliveries of goods in separate lots, PURCHASER, if it rejects or cancels one or more separate lots as aforesaid, may also, at its sole election, exercise either or both of the following rights: to cancel any undelivered lots and/or to purchase elsewhere and charge Seller with any loss incurred as a result thereof. Unless delay is due to causes beyond Seller's control, premium transportation costs to meet delivery schedules shall be at Seller's expense. If requested by PURCHASER, Seller will mail a notice of shipment the same day goods are shipped.
4. INSPECTION AND QUALITY CONTROL. Notwithstanding payment, passage of title, prior inspection or test, all items are subject to final inspection and acceptance or rejection at PURCHASER'S “Ship To:” location (as indicated on the first page of this order). Seller shall use an inspection system approved by PURCHASER in writing. All inspection records relating to items covered by this order shall be available to PURCHASER during the performance of this order and shall be retained by Seller for three (3) years after final payment by PURCHASER. All items covered by this order may be inspected and tested by PURCHASER, its customers, high tier contractors, and the local, state and Federal government at all reasonable times and places during the period of Seller's performance under this order. Seller shall provide, without additional charge, all reasonable facilities and assistance for such inspections and tests.
5. WARRANTIES AND LIABILITIES. Whether or not Seller is a merchant of goods, Seller warrants that all goods provided by it: (i) shall be of good quality and workmanship and free from defects, latent or patent; (ii) shall strictly conform to all specifications, drawings and descriptions furnished, specified or adopted by PURCHASER; (iii) if, of Seller's design, shall be free from design defects; (iv) shall be merchantable, suitable and sufficient for their intended purposes; and (v) shall be free of any claim of any third party. NONE OF THE REMEDIES AVAILABLE TO PURCHASER FOR THE BREACH OF ANY OF THE FOREGOING WARRANTIES MAY BE LIMITED EXCEPT TO THE EXTENT AND IN THE MANNER AGREED UPON BY PURCHASER IN SEPARATE AGREEMENT SPECIFICALLY DESIGNATING SUCH LIMITATION AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF PURCHASER. NO LIMITATION ON LIABILITY OR ON DAMAGES FOR BREACH OF WARRANTY, BREACH OF CONTRACT, TORT OR OTHER LIABILITY SHALL APPLY, EXCEPT TO THE EXTENT AND IN THE MANNER AGREED UPON BY PURCHASER IN A SEPARATE AGREEMENT SPECIFICALLY DESIGNATING SUCH LIMITATION AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF PURCHASER. PURCHASER's inspection and/or acceptance of and/or payment of goods shall not constitute a waiver by it of any warranties. PURCHASER's' approval of any sample or acceptance of any goods shall not relieve Seller from responsibility to deliver goods conforming to specifications, drawings and descriptions.
6. PATENT WARRANTY. Seller warrants that (i) neither the goods furnished hereunder nor the sale or use thereof will infringe any United States or Foreign Letters Patent, trademark, copyright, or other proprietary or similar rights; (ii) Seller will, at its own expense, defend any suit that may arise with respect to any aforementioned infringement or allegation thereof; and (iii) Seller will indemnify and hold PURCHASER and/or its customers harmless from all loss and expense incurred on account of any alleged or actual infringement. PURCHASER shall promptly notify Seller of any such infringement claim made against it. In the event that the use of said goods or any part thereof is enjoined, PURCHASER at its election may require Seller, at Seller's sole cost and expense, to: (i) procure for PURCHASER, within thirty (30) days, the right to continue using said goods or part; (ii) modify same so it becomes non-infringing; (iii) replace it with non-infringing goods or part; or (iv) take back the goods and refund PURCHASER's purchase price.
7. RETURNS. PURCHASER has the right to return unused goods to Seller for a full refund. Seller will not process returned goods as exchanges unless clearly marked “Exchange” on the shipping documentation. Returned goods will be deemed accepted by Seller unless Seller provides notice (and explanation for rejection) to PURCHASER within 3 weeks of shipment.
8. PARTS PURCHASED ON AN EXCHANGE BASIS. When PURCHASER orders any goods on an exchange basis, PURCHASER will return the “core” to Seller within: 45 days from purchase from domestic sellers and 90 days from purchase from international sellers.
9. INDEMNITY AND INSURANCE. Seller shall indemnify and hold PURCHASER and its officers and directors harmless, and at Seller's expense, defend PURCHASER from all liability, loss and expense, or claims therefore, arising out of death or injury to any person or damage to any property, or any other damage or loss, by whomsoever suffered, resulting in whole or in part from any alleged or actual defect, whether latent or patent, in goods sold to PURCHASER hereunder including without limitation actual or alleged improper construction or design or failure to comply with specifications, or from the actual or alleged violation by such goods (or their manufacture, possession, use or sale) of any Federal, state or local rule, regulation or governmental order, or from the failure of such goods to comply with any express or implied warranty of Seller or with any of the provisions which govern Seller's performance under this Order provided that this indemnity shall be null and void to the extent such liability, loss or expense, or claim(s) therefore, results solely from the gross negligence of PURCHASER. Seller will obtain and maintain in force, at no expense to PURCHASER, products liability and general liability insurance, naming PURCHASER as an additional insured on the policies. Seller shall maintain products liability insurance coverage in a minimum amount of one million ($1,000,000 USD) per occurrence and two million dollars ($2,000,000 USD) aggregate, with contractual liability endorsement, exclusive of defense costs. Seller shall supply PURCHASER a certificate of insurance evidencing such insurance upon request as part of the execution of this agreement. Supplier’s insurance shall be primary and non-contributory. Supplier’s coverage shall include a waiver of subrogation in favor of PURCHASER.
10. PRICE, TAXES AND QUANTITIES. Seller shall furnish the goods called for by this Order in accordance with the prices and delivery dates stated on the face of this Order. If prices and/or delivery dates are omitted, Seller shall offer its lowest prices and best delivery dates, both of which shall be subject to written acceptance by PURCHASER. All prices include all applicable taxes and duties. Seller warrants that the prices charged for the items covered by this order will be as low as the lowest prices charged by the Seller to any other customers purchasing similar goods in the same or smaller quantities, and under like circumstances. Goods shipped under this order must be shipped in the quantity ordered. All charges related to this Order, including core/exchange or return/restock charges, must be brought to PURCHASER’s attention no more than 60 days after the Order is placed. Failure by Seller to notify PURCHASER of any costs, charges, or fees within 60 days from the date the order is placed will amount to a waiver of the right to collect same.
11. TOOLS. Unless otherwise specified, all necessary material or tools including dies, gauges, jigs or fixtures required to execute this order are to be supplied by Seller. If PURCHASER agrees to pay for or furnish any material or tools, dies, gauges, jigs or fixtures in connection with this order, said items shall be and remain PURCHASER's property, and shall be used exclusively for PURCHASER unless PURCHASER directs otherwise in writing. Seller will account for said items and keep them fully covered by insurance at all times without expense to PURCHASER. It is understood and agreed that said items may be removed by PURCHASER at any time and shall not otherwise be disposed of by Seller without written permission from PURCHASER. Seller will maintain said tools and similar equipment in good working condition and will return them to PURCHASER on request or termination of the work for which they were furnished.
12. NONDISCLOSURE. Seller may have access to and become familiar with various trade secrets and other information that is believed to be confidential and proprietary to PURCHASER and/or
PURCHASER's customers (collectively "Confidential Information") including, but not limited to, information relating to products, services, research, development, inventions, prototypes, techniques, devices, drawings, specifications, processes, financial information, customer identity, or other business strategies. For purposes of this Order, Confidential Information shall include the existence of this Order, the identity of PURCHASER’s customer (if any) and the fact that Seller is furnishing PURCHASER with the goods herein mentioned. Seller agrees that it shall not disclose Confidential Information to any third party or reproduce Confidential Information except with the prior written consent of PURCHASER. Seller further agrees that it shall only use Confidential Information in connection with this Order. All files, records, documents, drawings, specifications, equipment and similar items relating to the business of PURCHASER, whether prepared by Seller or otherwise coming into its possession, shall remain the exclusive property of PURCHASER. Seller shall promptly return all Confidential Information furnished pursuant to this Order and any copies thereof, when requested by PURCHASER upon termination of this Order, or as otherwise requested by PURCHASER.
13. CHANGES. PURCHASER reserves the right at any time prior to shipment to make changes to: (i) the specifications of any goods to be specifically manufactured for PURCHASER, (ii) the methods of shipment or packing, (iii) the place of delivery, (iv) the schedule of delivery; and (v) reduce, increase or cancel the quantities ordered. If any such change causes an increase or decrease in the cost of or the time required for performance of this purchase order, 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 asserted in writing within ten (10) days from receipt by Seller of the change. If the cost of property made obsolete or excess as a result of a change is paid for by PURCHASER, PURCHASER shall prescribe the manner of disposition of such property.
14. CANCELLATION AND REMEDIES. PURCHASER may cancel this order in whole or in part if: (i) the goods furnished do not conform to warranties; (ii) Seller fails to make deliveries as provided herein; (iii) Seller breaches any other term or condition herein; (iv) any representation by Seller proves to have been false when made; or (v) Seller is insolvent, a petition is filed for reorganization of Seller or for its adjudication as a bankrupt, Seller makes an assignment for benefit of creditors, and receiver or trustee is appointed for any of Seller's assets or any other type of insolvency proceeding or formal or informal proceeding for the dissolution, liquidation, or winding up of affairs of Seller, is commenced. In the event of any such breach, PURCHASER shall have the right, in addition to its other rights: (i) to refuse to accept delivery of goods; (ii) within one year after delivery, to return to Seller at Seller's expense any goods already delivered and, at PURCHASER's option, either recover all payments made therefore and expenses incident thereto or, at Seller's expense, to receive replacement therefore, except that the rights set forth in this provision (ii) shall not be available upon cancellation by PURCHASER because of the occurrence, alone, of any of the events set forth in (v) above; (iii) to recover any advance payments to Seller for undelivered or returned goods not fully performed; and (iv) to purchase elsewhere and charge Seller with any loss incurred as a result thereof. PURCHASER's right to return goods is not affected by any assignment by Seller of monies due or to become due hereunder.
Upon cancellation as aforesaid, PURCHASER shall not have any liability to Seller except that Seller may charge to PURCHASER only the allocable part of the price for conforming goods delivered, and not returned. In addition, PURCHASER shall have the option of paying to Seller, Seller's actual costs for undelivered goods, in which event, such goods, whether in process or finished, and raw materials therefore, shall become PURCHASER's property and shall be delivered to PURCHASER as herein provided. In no event shall PURCHASER be obligated to pay to Seller an amount greater than the price herein for said delivered and undelivered goods in total.
15.ASSIGNMENT AND SUBCONTRACTING. Seller agrees not to subcontract for any complete or substantially complete materials and/or supplies called for by this Order without the prior written consent of PURCHASER. Seller may not assign this order or any rights under this order without the written consent of PURCHASER, and no purported assignment by Seller shall be binding on PURCHASER without such consent. No consent shall be deemed to relieve Seller of its obligations to comply fully with the requirements of this Order.
165. COMPLIANCE WITH LAWS. In performance of this Order, Seller shall comply with all applicable Federal, state and local laws, rules, codes and regulations for violation of which PURCHASER may be liable including particularly the requirements of the Fair Labor Standards Act of 1938, as amended, and any requirements for packaging, labeling, crating and registering for transportation. Seller agrees to indemnify PURCHASER, its customers and agents for any loss, damage or award sustained because of Seller's noncompliance with this paragraph. All goods provided by Seller shall be free of patient health information and in accordance with the Health Insurance Portability and Accountability Act of 1996. Seller also assumes the responsibility to remove any patient health information that is on goods received from Purchaser.
17. EXCUSABLE DELAYS. Neither of the parties shall be held responsible for any delay or failure in performance hereunder caused by fire, embargoes, acts of the government in either its sovereign or contractual capacity, civil or military authorities, acts of God or by the public enemy, or other causes beyond their control and without their fault or negligence, provided, that Seller furnish written notice to PURCHASER within five (5) days of the time Seller first receives knowledge of the occurrence of any such cause which will or may delay Seller's performance.
18. PROVISION OF SERVICES. If this Order includes Seller’s provision of any services to PURCHASER, Seller’s performance will be subject to the terms and conditions located here, which are hereby incorporated into this Order: https://www.blockimaging.com/terms/bposbtb912.
19. MISCELLANEOUS. Whenever Seller shall have in its possession any property of PURCHASER, Seller shall be deemed an insurer thereof and responsible for its safe return to PURCHASER.
Whenever PURCHASER has the right to demand of Seller adequate assurance of due performance, PURCHASER shall be the sole judge of the adequacy of assurance given by Seller. No delay or omission by PURCHASER in exercising any right or remedy hereunder shall be a waiver thereof of any other right or remedy. No single or partial waiver by PURCHASER thereof shall preclude any other or further exercise of any other right or remedy. All rights and remedies of PURCHASER hereunder are cumulative.
No course of prior dealings between PURCHASER and Seller and no usage of the trade shall be relevant to supplement or explain this Agreement. This Order cannot be modified or amended without the written consent of PURCHASER.
20. GOVERNING LAW; DISPUTE RESOLUTION; JURISDICTION. The Agreement shall be construed and governed according to the laws of the State of Michigan. The provisions of the United Nations Convention on Contracts for the International Sale of Goods, and any conflict-of-laws provisions that would require application of another choice of law, are excluded. In the event of any dispute arising from or relating to the Agreement, the parties hereto shall initially use their best efforts to amicably settle the dispute. To this effect, they shall consult and negotiate with each other in good faith and attempt to reach a mutually satisfactory solution. If they do not reach such a solution, all disputes, claims, questions, or differences regarding the Agreement, or any other matter between the parties, will be finally resolved by binding arbitration, conducted in the English language using a single arbitrator. Unless otherwise agreed by PURCHASER: (1) if the arbitration involves only United States parties, it will be conducted under the Commercial Arbitration Rules of the American Arbitration Association (AAA) in force as of the date of the request for arbitration, which rules are deemed to be incorporated by reference into this clause; (2) if the arbitration involves any parties not domiciled in the United States, it will be conducted under the International Arbitration Rules of the American Arbitration Association (AAA) in force as of the date of the request for arbitration, which rules are deemed to be incorporated by reference into this clause; (3) the Purchaser’s office in Holt, MI, USA; (4) the arbitrator shall award attorneys' fees, costs, punitive or exemplary damages to the substantially prevailing party; and (5) the award of the arbitrator will be enforceable in any court of competent jurisdiction.
