TESTAMERICA
NOTICE OF PURCHASE ORDER TERMS AND CONDITIONS
Whereas, TestAmerica Laboratories, Inc., a corporation organized and existing under the Laws of the State of Delaware and its affiliates (including Aerotech Laboratories, Inc., EMLab P&K, LLC, and TestAmerica Air Emissions Corp) (“TestAmerica” or “Buyer”) wishes to from time to time place orders (“Purchase Orders” or “Order”) with the party (“Contractor” or “Seller”) named on such orders for services and/or goods which (1) are needed by TestAmerica and (2) Contractor has expertise and experience in providing; and
Whereas, a condition precedent to the issuance of all such Purchase Orders is that Contractor agree that the Purchase Order Terms and Conditions set forth below shall apply to all such Purchase Orders, and Contractor has so agreed or is prepared to do so; and that any terms and conditions presented after the date of this agreement are superseded by these unless specifically indicated on Purchase Order;
Now, therefore, TestAmerica and Contractor, intending to be legally bound hereby, agree that Contractor shall provide services and/or goods to TestAmerica as specified in Purchase Orders issued from time to time, all on the terms and conditions set forth below:
1. ACCEPTANCE AND MODIFICATION: Seller's acknowledgment of this Notice, commencement of performance under any Purchase Order or shipment of the goods and/or services ordered by any Purchase Order shall conclusively evidence Seller's acceptance of the terms and conditions hereof. The Purchase Order and these Terms and Conditions shall be the complete and exclusive contract of the agreement between Seller and Buyer.
2. PRICES/PAYMENT: Buyer shall pay the price stipulated on the Purchase Order less deductions, if provided. If price is not stated on the Purchase Order, it is agreed that the goods and/or services shall be billed at the price last quoted or paid, or at prevailing market price, whichever is lower.
Seller agrees that Buyer may withhold payment to the extent reasonably necessary to protect Buyer from loss due to defective work and/or goods and services not remedied, claims filed or reasonable evidence indicating probable filing of claims, or any reasonable doubt that the Purchase Order cannot be completed within the stated time.
Buyer shall pay invoices by sixty (60) days from the date of receipt of a Seller's invoice properly prepared in accordance with Buyer’s requirements.
3. SHIPPING AND PACKING: All goods must be suitably packed and prepared for shipment so as to prevent damage or deterioration, secure lowest transportation rates and comply with carrier tariffs. Packing sheets showing the order number must be included with each shipment. Each container must be marked showing the order number. Order numbers must be indicated on the bill of lading.
4. DELIVERIES: Unless otherwise specifically stated on the face of the Purchase Order, all goods and/or services hereunder shall be delivered F.O.B. Buyer's location. If any such goods and/or services are not complete by the date specified on the face hereof, Buyer reserves the right, to cancel the Purchase Order without penalty.
5. WARRANTY: Seller warrants that all goods and/or services delivered under any Purchase Order (including but not limited to all applicable descriptions, specifications, drawings, data and samples), be free from defects in design and fit for the intended purposes. Buyer shall notify Seller if any delivered goods and/or services are rejected and, at Buyer's election and Seller's risk and expense, such goods and/or services shall be held by Buyer or returned to Seller.
6. CHANGES: Buyer shall have the right to make changes, by written order, in any of the designs, specifications, packing, destination, delivery schedule (postponements only) or quantity of any goods and/or services subject to the Purchase Order. Seller shall proceed immediately to perform the Purchase Order as so changed. If such changes cause an increase/decrease in the cost of performance or in the time required for performance of the Purchase Order, an equitable adjustment shall be negotiated promptly and the Purchase Order shall be modified in writing accordingly.
7. INDEMNIFICATION AND INSURANCE: Seller agrees to defend Buyer against and to indemnify and hold Buyer harmless from and against any and all damages, claims, demands, expenses (including reasonable attorney's fees), or liabilities of any nature whatsoever, and whether involving injury or damage to person or property, and any and all suits and causes thereon, arising or allegedly arising from and attributable or allegedly attributable to Seller's goods and/or services ordered or from the use thereof by Buyer, its assignees, employees, subcontractors, agents or customers, or any subsequent owner, operator or user thereof. Buyer agrees to give Seller reasonable notice of any of the foregoing. Seller shall also maintain such Public, Professional Liability, Property Damage, Employers' Liability and Compensation Insurance and Motor Vehicle Liability (Personal Injury and Property Damage) as will protect Buyer, as well as Seller, or its subcontractors, from said risks and from any claims under any applicable Workmen's Compensation or Occupational Disease statutes.
8. ASSIGNMENT: No Order, its performance, any interest herein or in any monies due or to become due hereunder, may be assigned by Seller without the prior written consent of Buyer.
9. GOVERNING LAW: This agreement shall be construed in accordance with the laws of the State where the Buyer's facility is located. Seller agrees that it will comply with all applicable federal, state, and local laws, rules and regulations.
10. ADDITIONAL REQUIREMENTS: The following are incorporated as required by reference, with the same force and effect as if reproduced in their entirety.
(a) Contracts for $2,500 or more: Executive Order 11758, Employment of the Handicapped.
(b) Contracts for $5,000 or more: Executive Order 11458, Utilization of Minority Business Enterprises.
(c) Contracts for $10,000 or more: Executive Order 11246 and 11375, Equal Opportunity Clause and Non-Segregated Facilities Clause.
(d) Contracts for $3,000 or more: Executive Order 11701, Job Listing Requirements -Employment of Vietnam Era Veterans and Disabled Veterans.
(e) Contracts for $5,000 or more: Executive Order 13101, Use of Environmentally friendly and recycled materials.