1. Applicability. The Purchase Order (the “Order”) is an offer by Relyco Sales, Inc. (“Relyco”) for the purchase of the goods and/or services specified on the face of the Order from the selling entity to whom the Order is addressed (the “Seller”), in accordance with and subject to these terms and conditions (the “Terms”), which are incorporated by reference into the Order. Seller’s acceptance of the Order is expressly limited to these terms. The Order and the Terms shall constitute the complete agreement between Relyco and Seller and may not be modified except in writing duly executed by authorized representatives of both Relyco and Seller. No terms and conditions stated in or attached to Seller’s communications to Relyco, including but not limited to acknowledgments or invoices, are valid in any way and are not to be considered Seller’s exceptions to the provisions of the Terms. Trade custom, trade usage and past performance are superseded by the Terms herein and shall not be used to interpret the Terms. Relyco is not obligated to any minimum purchase or future purchase obligations under this Order.
2. Acceptance. The Order is not binding upon Relyco until the earlier of: (i) Seller’s acknowledgment in writing, or (ii) Seller’s full or partial performance under the Order. Relyco may withdraw the Order at any time before accepted by Seller. If Seller does not accept the Order in writing or provide written notice that it has commenced production or performance within a reasonable time after Seller’s receipt of the Order, the Order will lapse. There is no obligation for Relyco to purchase goods and/or services exclusively from Seller. The Order is neither a requirement nor an output contract.
3. Changes; Cancellation. Relyco will have the right at any time to make changes to an Order, including, without limitation, the specifications, quantities or delivery schedules of the goods. In the event of any such changes, no additional charge will be allowed unless authorized by Relyco’s authorized representative. Information, such as technical direction or guidance provided to Seller by representatives of Relyco in connection with Seller’s performance of the Order, shall not be construed either as a change within the meaning of this provision or as direction to proceed outside the scope of the Order. If the changes result in a material increase or decrease in prices or delivery schedules, an equitable adjustment of prices and delivery schedules will be made by agreement of the parties. If despite the good faith efforts of the parties, no agreement can be reached as to the equitable adjustment of prices or delivery schedules, Relyco may, at its option, cancel the Order.
Additionally, Relyco reserves the right to cancel the order, or any part thereof, for Relyco’s convenience at any time prior to full performance by Seller. If Relyco cancels the order for convenience, Relyco will be responsible for only that portion of the goods already produced or services already performed under the order prior to cancellation, plus the costs incurred by Seller for any unused materials ordered specifically in connection with the order which cannot be used by Seller within a reasonable time.
4. Packaging and Shipping. No change shall be allowed for handling, packing, packaging, or storage without written permission from Relyco. Goods shall be packaged in a manner that preserves and protects from damage and/or degradation. All goods are to be suitably prepared for shipment by Seller in accordance with acceptable commercial practices. Seller shall cause the goods to be labeled and shipped in accordance with Relyco’s requirements, which may be available from time to time online, and to otherwise conform to all requirements of federal, state and other laws and regulations, including, without limitation, the marking of the country of manufacture of the product, in a conspicuous place as legibly, indelibly and permanently as the nature of the article (or container) will permit. Seller shall identify Relyco’s purchase Order number on Seller’s invoice, packing list, bill of lading or on any packaging. Seller shall attach an invoice to each shipment, in addition to forwarding a copy of such invoice to Relyco. Unless otherwise requested by Relyco, all products shall be shipped FOB to Relyco’s requested delivery destination, with all freight charges prepaid by Seller. If so requested by Relyco on an Order by Order basis, Seller shall ship the products using Relyco’s designated carrier, in which event Relyco shall be the shipping costs directly to the carrier.
5. Inspection; Acceptance or Rejection. Relyco or its designee, at Relyco’s sole discretion, may inspect the goods at all reasonable times and places, including during the period of manufacture at Seller’s facilities, at no cost, and in any event after delivery at the delivery location. Any products and services requiring installation shall not be deemed finally accepted until Relyco has completed installation thereof. Product warranties shall survive any testing, inspection, delivery, payment, and acceptance of any goods by Relyco. Relyco may reject any defective or non-conforming goods (or any commercial unit thereof) within a reasonable time not to exceed sixty (60) days after delivery or performance. Relyco in any case will be entitled to inspect the goods before payment of the invoice for such goods. If Relyco rejects any portion of the goods, Relyco has the right, effective upon written notice to Seller, to: (a) rescind the Order in its entirety; (b) accept the goods at a reasonably reduced price; or (c) reject the Goods and require replacement of the rejected goods, if feasible. In no instance shall Relyco be charged any restocking or other fee in connection with a rejected Order. If Relyco requires replacement of the goods, Seller will, at its expense, promptly replace the non-conforming goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective goods and the delivery of replacement goods. If Seller fails to timely deliver replacement goods, or fails to give Relyco adequate assurance thereof, Relyco may replace the goods with goods from a third party and charge Seller the cost thereof, and terminate this Order for cause. Any inspection or other action by Relyco under this section will not reduce or otherwise affect Seller’s obligations under the Order, and Relyco will have the right to conduct further inspections after Seller has carried out its remedial actions.
6. Revocation of Acceptance. Relyco may revoke acceptance of any defective or non-conforming goods (or any commercial unit thereof) within a reasonable time after discovering that the goods are non-conforming, but in no event more than sixty (60) days after delivery or performance.
7. Time is of the Essence. Timely delivery of the goods or performance of the services is of the essence of the Order. Seller shall promptly provide written notification to Relyco of any possible or actual delay in performance hereunder and shall provide all relevant information concerning the cause for such delay. In no event, however, shall such notice relieve Seller of its obligations under the Order. Deliveries shall be strictly in accordance with the schedule set out or referred to in the Order and in the exact quantities Ordered. In no event shall Relyco be liable for any excess goods shipped by Seller. Relyco reserves the right at Seller’s expense to return goods shipped not in accordance with the Order.
8. Payment Terms. Seller will invoice Relyco for the goods or services covered by the Order upon delivery of the goods or services to Relyco. Unless contrary payment terms are specified in the Order, Relyco will pay all properly invoiced amounts due to Seller, except for any amounts disputed by Relyco in good faith, within 60 days of receipt of the Seller invoice. Relyco reserves the right to withhold payment of any invoices for any commercial unit or lot of goods or for any services which fail to comply with the specifications or warranties set forth in the Order, or which are otherwise non-conforming or defective. Payment by Relyco hereunder shall not be deemed an acceptance of the products and/or services or any work performed hereunder by Seller. All refunds and other amounts due to Relyco hereunder shall be remitted to Relyco within thirty (30) days from the date on which they accrue.
9. Prices; Sales and Use Taxes. All prices are in U.S. Dollars. The Order must not be filled at prices higher than last quoted by Seller without Relyco’s written consent. If no price is included in the Order, the price will be the price set out in Seller’s published price list in force as of the date of the Order, or if none, a commercially reasonable price. Unless otherwise specified in the Order, the price includes all packaging, transportation costs to the delivery location, insurance, and fees. No increase in the price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Relyco. Relyco shall not be billed for, nor shall Relyco have any obligation to pay, any charge or amount not specifically authorized under the Order.
Notwithstanding the price set forth in the Order, Relyco will receive the benefit of any general reduction in the prices of goods covered by the Order made by Seller at any time prior to delivery. Relyco will also receive the full benefit of all discounts, allowances, premiums and other terms of payment customarily offered by Seller to its most-favored customers, or which are customary in the trade. Seller further represents that the prices to be paid or otherwise charged to Relyco are not any higher than the lowest price for such goods or services offered by Seller to any other of its customers.
Unless otherwise stated in the Order, prices include all sales, use, excise or other taxes. and Seller shall otherwise be responsible for and pay all federal, state, national and local sales, use, income, excise, property, employment, and other taxes incurred or levied on or in connection with the manufacture and/or provision of products and/or services, or relating to Seller’s property. Relyco shall be responsible only for taxes arising from its ownership of products and/or services delivered by Seller. Seller agrees to indemnify Relyco against any loss, liability or expense resulting from Seller’s failure to pay taxes, fees, duties, assessments, charges or conditions.
10. Set-off. Without prejudice to any other right or remedy it may have, Relyco reserves the right to set off at any time any amount payable to Relyco by Seller against any amount payable to Seller by Relyco.
11. Cumulative Remedies. The rights and remedies under the Order are cumulative of and in addition to, and not in substitution of, any other rights and remedies available at law or in equity or otherwise.
12. Warranties. Seller warrants to Relyco that for the longer of (i) the warranty period generally offered by Seller to purchasers of the product or service; or (ii) twelve (12) months following delivery of the goods to Relyco (the “Warranty Period”) all goods and deliverables will: (a) be new and free from any defects in workmanship, material and design; (b) conform to applicable specifications, drawings, designs, samples and other requirements specified by Relyco, and operate in conformity with the performance, functionality, and other specifications contained in documentation issued by Seller with the project or service; (c) be fit for their intended purpose and operate as intended; (d) be merchantable; and (e) be free and clear of all liens, security interests or other encumbrances (except those created by Relyco), and title conveyed to the goods will be good and its transfer rightful. In addition, Seller warrants to Relyco that the goods, services and deliverables do not and will not infringe or misappropriate the intellectual property rights of any third party, including copyrights, moral rights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights. These warranties survive any delivery, inspection, acceptance or payment of or for the goods or services by Relyco. These warranties are cumulative of and in addition to any other warranty provided by law or in equity. Any applicable statute of limitations runs from the date of Relyco’s discovery of the noncompliance of the goods or services with the foregoing warranties. Any attempt by Seller to limit, disclaim or restrict any of the above warranties, by acknowledgement or otherwise in accepting or performing the Order, will be null, void and ineffective without Relyco’s written consent. Notwithstanding anything contained herein to the contrary, Relyco may, at its option, assign or otherwise transfer or pass-through these warranties, in whole or in part, on any particular product or service to any of Relyco’s customers whereupon (i) such customer may enforce such warranties against Seller on, in, and for such customer’s own behalf, name, and benefit, and (ii) Relyco may enforce such warranties against Seller on, in, and for Relyco’s or such customer’s behalf, name, or benefit.
13. Compliance With Laws. Seller will comply with all federal, state and local statutes, regulations, ordinances, tariffs or other laws, conventions and standards in the counties in which they are used applicable to the Order, including, without limitation, laws and regulations related to restrictions on the use of certain hazardous substances. Seller will obtain and maintain, at its sole cost and expense, any and all necessary permits and licenses necessary in the performance of its obligations under the Order. Seller further warrants that its products and services have been manufactured (whether by Seller or third party manufacturers) in compliance with the wage and hour laws of the countries of manufacture and without the use of child, prison, involuntary labor or other unlawful labor practices.
14. Hazardous Materials. Seller shall notify Relyco in writing upon acceptance of the Order if goods furnished are subject to laws or regulations relating to hazardous or toxic substances, or when disposed of, to regulations governing hazardous wastes, or any other applicable environmental, health, or safety laws or regulations. Instruction for handling, warnings, and safety data sheets shall be provided with each shipment. Seller shall submit to Relyco with each shipment, a copy of all relevant MSDS sheets.
15. Insurance. Seller will, at its sole cost and expense, procure and maintain at all times the following insurance coverage (or such other insurance coverage as Relyco may reasonably specify in notice in writing to Seller): (a) comprehensive general liability insurance, including products and completed operations insurance, with limits of not less than $1,000,000.00 per occurrence and $2,000,000.00 in aggregate; (b) statutory workers’ compensation insurance with statutory limits for the states where the goods are to be produced or the services to be performed; and (c) comprehensive automobile liability insurance for all owned, hired or used vehicles covering bodily injury liability with limits of not less than $1,000,000.00 per occurrence and in aggregate. All such policies shall be in form and with insurance carriers acceptable to Relyco. Each such policy shall provide that thirty (30) days’ prior written notice of cancellation must be given to Relyco before cancellation of the policy will be effective. Seller will take all steps required to prevent all such insurance from lapsing or being canceled. Seller will submit a duly signed certificate of insurance issued by an insurer acceptable to Relyco for the aforementioned insurance coverage.
16. Indemnification. Seller will indemnify, defend and hold harmless Relyco and its affiliates, and their respective officers, directors, employees, agents, successors and assigns, from and against any and all costs, damages, claims, losses, liabilities, penalties, fines, citations, expenses, forfeitures or liens, including but not limited to attorneys’ fees, expert fees and court costs, incurred by or asserted against Relyco or the other persons indemnified hereunder resulting from or arising out of: (a) Seller’s non-performance, default or breach of the order or these terms, including any defects in or nonconformity of the goods or services; (b) the willful or negligent conduct of Seller, its officers, agents, employees or contractors in connection with the goods or services; and (c) any claim that Relyco’s use or possession of the goods or deliverables infringes or misappropriates the intellectual property rights of any third party, including copyrights, moral rights, patents, patent disclosures and inventions, trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights. The obligations of Seller set forth in this section will survive performance, cancellation or termination of the order. Seller will not enter into any settlement without Relyco’s prior written consent.
17. Ethics. Seller understands and acknowledges that Relyco’s employees, including its buyers, are bound by certain codes, policies and agreements imposing standards of ethical conduct that, among other things, limit or restrict the employee’s ability to disseminate confidential information to or accept gifts from vendors. The ethical standards imposed on Relyco’s employees may from time to time be posted on Relyco’s website, and Seller is charged with reading such standards. Seller and its employees, agents and representatives will at all times respect and honor refrain from engaging in any illegal, unethical or deceptive practices, or from inducing any of Relyco’s employees to violate any of Relyco’s ethical standards and confidentiality obligations.
18. Default. Relyco may by written notice of default to Seller, terminate the Order in whole or in part (such termination, a “termination for default”) if Seller in Relyco’s sole opinion; (1) fails to deliver goods or services within the time specified in the purchase order or contract or any extension issued in writing by Relyco; (2) fails to make progress, resulting in an endangerment of the performance of the purchase order or contract; (3) fails to comply with or perform any of the provisions of the purchase order or contract; (4) files a petition in bankruptcy, is declared bankrupt, becomes insolvent, makes an assignment for the benefit of creditors or is liquidated or placed in receivership. Relyco’s rights to terminate the Order pursuant to (1) and (2) above may be exercised if Seller does not cure such failure within 10 days after the notice is sent from Relyco specifying the failure. If Relyco terminates the Order in whole or in part for default, it may acquire, under the terms and in the manner Relyco considers appropriate, products or services similar to those terminated, and Seller will be liable to Relyco for any excess costs of such products or services. If the Order is terminated for default, Relyco may require Seller to transfer title and deliver to Relyco, as directed by Relyco, any (1) completed products and/or services, and (2) partially completed products and/or services that Seller has specifically produced or acquired for the terminated portion of the purchase order or contract. Upon direction of Relyco, Seller will also protect and preserve property in its possession in which Relyco has an interest. Relyco will pay the purchase order or contract price for completed products and/or services accepted by Relyco. Seller and Relyco will agree on the payment for uncompleted products and/or services that Relyco has directed to be delivered to Relyco. Relyco may withhold from these amounts any sum for damages and losses incurred by Relyco. If after termination for default, it is determined that Seller was not in default, the rights and obligations of the parties will be the same as if the termination had been issued for the convenience of Relyco under the Cancellation section herein. The rights and remedies of Relyco in this Default section are in addition to those provided by law or under the Order.
19. Confidentiality. Seller understands and agrees that all confidential, proprietary, financial or other non-public information of Relyco or its clients that is disclosed, furnished or made available to Seller is “Confidential Information.” Seller agrees that Confidential Information will remain the exclusive property of Relyco. Seller agrees to hold all Confidential Information in trust and confidence, and to protect the Confidential Information from disclosure using the same degree of care, but not less than a reasonable degree of care, as Seller uses to protect its own confidential information of a similar nature. Seller may disclose Confidential Information only to such of its employees, agents and contractors who: (a) require such information in performance of the Order; and (b) have been informed of the provisions of this section. In any event, Seller will remain fully liable for any unauthorized disclosure by its employees, agents or contractors. Seller may use the Confidential Information only as strictly required in Order to perform the Order. Seller agrees to destroy or return to Relyco all Confidential Information in its possession, custody or control, including copies thereof, within fifteen (15) days after the earlier of termination of the relationship between the parties or the Relyco’s written request. This section is cumulative of the provisions of any other non-disclosure, confidentiality or similar agreement between the parties, and expressly survives the performance, cancellation or termination of the Order.
20. Independent Contractor. Seller is an independent contractor of Relyco, and nothing in the Order, these terms, or any acknowledgment, acceptance or confirmation thereof, will be construed as creating an employment relationship, partnership, joint venture or relationship other than that of independent contractors between the parties.
21. Electronic Signatures. The parties agree that for any transactions subject to the Order, facsimile signatures will be accepted as original signatures, Orders may be transmitted electronically and any document created pursuant to the Order may be maintained in an electronic document storage and retrieval system, a copy of which will be considered an original. Neither party will raise any objection to the authenticity of the Order or any document created hereunder, based on the use of a facsimile signature, digital or electronic signature, electronic Order or the use of a copy retrieved from an electronic storage system.
22. Miscellaneous Provisions
a. Entire Agreement. The Order, together with these terms and any documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the Order, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the Order.
b. Severability. If any portion of the Order, including these terms, is deemed invalid or unenforceable for any reason, the remaining portions will be valid and enforceable and carried into effect unless to do so would clearly violate the present legal and valid intention of the parties hereto.
c. Survival. Any provisions of the Order and these terms which expressly or by their nature should extend beyond the term of the Order will survive the performance, cancellation or termination of the Order.
d. Amendments. Any amendments to the Order or these terms will be effective only if in writing and signed by authorized representatives of both parties.
e. Binding Effect. The Order and these terms will be binding upon and inure to the benefit of the parties and their respective successors and assigns.
f. Assignment. Seller acknowledges that the products and/or services to be provided to Relyco hereunder are unique and personal. Accordingly, Seller may not assign the Order, these terms or any of its rights or duties hereunder without the prior written consent of Relyco, and Relyco reserves the full right to approve or disapprove of any assignees or subcontractors selected by Seller. In any event, Seller remains fully liable for any non-performance or breach by its assignees or subcontractors. Any attempted assignment without written consent shall render the Order null and void.
g. Waiver. Failure of Relyco to insist upon strict performance of the order and these terms, or to exercise any option therein, will not be construed as a modification or waiver of any provision, right, or obligation therein.
h. Headings; Construction. Headings used in these terms are for reference purposes only and in no way define, limit, construe, or describe the scope or intent of these terms. These terms will not be construed for or against any party on the basis of which party drafted these terms.
i. Governing Law. The Order and these terms will be interpreted and construed under the laws of the State of New Hampshire, without regard to any choice or conflict of law provisions.
j. Venue; Jurisdiction. Any proceeding arising out of or in connection with the Order or these terms must be brought in the state (or if applicable, federal) courts situated in the State of New Hampshire. The parties hereby irrevocably consent to the personal jurisdiction and venue of such courts.
k. Legal Fees. If either party brings an action or proceeding arising under or out of the Order or these terms, or on account of any breach or default thereof, the prevailing party will be entitled to receive from the other party its reasonable attorneys’ fees, expert witness fees, investigation fees and other related fees, costs and expenses incurred in connection with such proceeding.
Revised October 2018.