VENDOR TERMS AND CONDITIONS OF PURCHASE
The following terms and conditions are applicable to Mercom’s purchase of products from the Vendor under this Purchase Order. Mercom rejects any terms proposed by Vendor that conflict with these terms and conditions. By acknowledging this order or fulfilling this Purchase Order, Vendor agrees to and accepts these terms and conditions of purchase. Mercom shall not be bound by the terms of any order confirmation or other form of Vendor unless signed by Mercom.
- PRICING/PAYMENT. If prices are omitted on the face of this order, Vendor’s prices are subject to Mercom’s written approval. Payment terms are NET30 from the Mercom’s acceptance date or the acceptance date of Mercom’s end customer.
- SHIPPING. Vendor shall pay all packing and cartage costs unless otherwise shown on the Purchase Order. All orders are FOB Destination unless otherwise shown on the Purchase Order. Product shall be packed and shipped by Vendor in accordance with Mercom’s instructions and good commercial practice to ensure against damage from weather or transportation.
- TIME IS OF THE ESSENCE. Time is of the essence. If deliveries are not made at the time specified Mercom reserves the right to cancel, or require that delivery be made by express air freight at Vendor’s cost, or purchase the goods and/or services elsewhere and hold Vendor accountable therefore.
- TERMINATION. Mercom may terminate this Purchase Order at any time and for any reason by written notice to Vendor. In the event of termination for cause, Mercom shall have no liability whatsoever to Vendor. In the event termination is not for cause, then Vendor shall be entitled to receive only reasonable costs and expense incurred in performance of this Purchase Order to the date of termination, provided Vendor submits notice of the costs and expense incurred to Mercom within 30 days after the date of termination. Any termination by Mercom shall be without prejudice to any claims for damages or other rights of Mercom against Vendor. Mercom shall have the right to audit all elements of any termination claim and Vendor shall make available to Mercom upon request all books, records and documents relating thereto.
- NO SUBSTITUTE PRODUCTS. Under no circumstances is Vendor permitted to use substitute material to replace defective articles or to repair or rework them, by welding or otherwise, without Buyer’s written permission.
- NON-ASSIGMENT. Assignment by Vendor of Vendor’s obligation under this Purchase order or any part thereof without written consent of Mercom shall be void.
- WARRANTY. Vendor warrants all goods delivered hereunder shall be of new and first quality material, of good workmanship and free from defects, and that such goods shall conform to specifications, drawings, samples or other descriptions referenced herein and shall be fit for the purpose for which purchased. Vendor further warrants that services furnished hereunder shall conform to specifications and shall be performed in a skilled and workmanlike manner. Goods or services found to be defective in material or workmanship or nonconforming with specifications shall, at Mercom’s option, be replaced, corrected, or repaired in place by Vendor, or be replaced at Mercom’s or Mercom’s end customer’s premises by Vendor, or be returned to Vendor at Vendor’s expense (including transportation and handling costs) for full refund. This warranty shall survive any inspection, delivery, or acceptance of the goods or services, or payment by Mercom. This warranty shall run to Mercom, its successors, assigns and customers and the Mercom’s end customers for the products. Nothing herein, shall limit Mercom’s right to be reimbursed for any and all damages resulting from any breach of this warranty, including without limitation consequential and indirect costs of any nature.
- INDEMNITY AND INSURANCE. Vendor shall defend, indemnify and hold Mercom, its employees, agents, customers, successors and assigns, harmless from any and all liabilities (including attorney’s fees), claims, or suits arising out of: (a) Vendor’s defective performance of this Purchase Order; and (b) any claim that the subject goods or services infringe any patent, trademark, or similar rights. Vendor shall maintain such public liability insurance (including products liability, completed operations, contractors’ liability and protective liability), automobile liability insurance, (including non-owned automobile liability), and workmen’s compensation and employers’ liability insurance as will adequately protect Mercom against such damages, liabilities claims, losses and expense (including attorneys’ fees).
- REMEDIES. No remedy herein provided shall be deemed exclusive of any other remedy allowed by law. Mercom’s waiver of any breach by Vendor of any provision of this Purchase Order or resulting contract shall not be deemed a waiver of any other provision or of future compliance with all provisions of this this Purchase Order or resulting contract. All warranties shall be construed as conditions as well as warranties. No modification of any provision of this order shall be valid or binding upon Mercom unless approved by Mercom in writing by an authorized agent.
- DISPUTES. This Purchase Order and any contract resulting shall by interpreted under South Carolina law. Any dispute arising out of this order shall only be resolved by binding arbitration before the American Arbitration Association in Georgetown County, South Carolina. The arbitration award for such disputes shall include reasonable attorney’s fees to the prevailing party and be enforceable in any court having jurisdiction over the parties.
- REMEDIES. UNDER NO CIRCUMSTANCES SHALL MERCOM OR ITS REPRESENTATIVES BE LIABLE TO VENDOR FOR LOST OR ANTICIPATED PROFITS, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR ANY OTHER TYPE OF INDIRECT DAMAGES ARISING UNDER OR RELATING TO THIS ORDER WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY BUYER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. . BUYER’S DAMAGES SHALL BE LIMITED TO THE LESSOR OF THE PURCHASE PRICE OF THE PRODUCTS AND/OR SERVICES OF THIS ORDER OR THE AMOUNT PAID BY MERCOM TO DATE ON THE ORDER.
- MODIFICATIONS. No modification to these terms and conditions shall be authorized unless in writing and agreed to by Mercom. Any such modifications shall appear on the face of the Purchase Order. Mercom’s Sales Representatives are not authorized to modify these terms and conditions, warrant specific applications, or execute customer documents.
- DEBARMENT/SUSPENSION. Vendor certifies that it is not presently debarred or suspended from contracting with the Federal Government. Vendor certifies further that it has not been proposed for debarment from contracting with the Federal Government.
- ANTI-DISCRIMINATION. Vendor shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a), and 60-741.5(a). These regulations prohibit discrimination against individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity, or national origin. Moreover, these regulations require that covered prime contractors and their subcontractors/vendors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability.