Acceptance and Authority. Commencing performance of or accepting this Purchase Order indicates Seller’s intent to be bound by these Terms and Conditions and constitutes acceptance of each of these Terms and Conditions. Toolcraft expressly limits acceptance of the Purchase Order to the terms stated herein and any additional, different, or inconsistent terms or conditions in any form, acknowledgement, acceptance, or confirmation used by Seller in connection with the performance of the Purchase Order are rejected by Toolcraft. Payment, acceptance of goods, or inaction by Toolcraft shall not constitute Toolcraft’s consent to or acceptance of any such terms.
Delivery. The goods shall be tendered by delivery to Toolcraft at the time and place specified in the Purchase Order. The times set forth for delivery are of the essence. If Seller fails to meet delivery requirements for any reason, including, without limitation, reasons beyond Seller’s control, Toolcraft may, at its option and without penalty, cancel this Purchase Order in whole or in part and obtain elsewhere all or any part of the goods. Seller is responsible for maintaining and providing proof of delivery. Packing lists must accompany each case or parcel, showing the Purchase Order number and a complete description of contents. Seller shall prepay all transportation charges.
Risk of Loss; Title. Risk of loss and clear title to the goods shall pass to Toolcraft at the time that conforming goods are received and accepted by Toolcraft.
Right of Inspection. All goods shall be subject to Toolcraft’s final inspection and acceptance, but such inspection and acceptance shall not relieve Seller from any obligations or liability under this Purchase Order. Any inspection pursuant to this section shall be performed within a reasonable time not to exceed forty-five (45) days from the date of delivery of the goods. No reasonable delay in rejection or return of goods, nor payment for goods, shall be considered acceptance or waiver of Toolcraft’s rights to reject, return, or retain such goods as provided herein or by law. If all or any part of the goods are found to be non-conforming, Toolcraft may reject such non-conforming goods, whereupon such rejected goods promptly shall be removed by Seller at Seller’s cost, and the Purchase Price with respect to such rejected goods shall be refunded by Seller if already paid, or shall be reduced if still owing. In either case, if Toolcraft so directs in writing, Seller shall promptly replace such non-conforming goods with goods conforming to the specifications of the Purchase Order. All direct and incidental costs of rejecting and removing such non-conforming goods shall be borne by Seller.
Payment. Seller shall invoice Toolcraft for the goods furnished by it under this Purchase Order within five (5) days of delivery. All invoices must be sent to Accounts Payable “accounting@toolcraftinc.com“. Unless other terms of payment are negotiated at time of the Purchase Order and are stated in the Purchase Order, Toolcraft shall pay an undisputed invoice within sixty (60) days of receipt by Toolcraft. Payment of any invoice shall not constitute approval or acceptance of any goods; shall not be construed to be acceptance of defective or nonconforming goods; and shall not relieve Seller of any of its obligations under the Purchase Order. Toolcraft has the right to withhold all or any portion of any payment to Seller to the extent as may be necessary to protect Toolcraft from loss due to Seller’s failure to fulfill any obligations under the Purchase Order. Toolcraft may set off any sums due and payable by Seller to Toolcraft under the Purchase Order against any payments due to Seller. Seller shall reference the Purchase Order by number in any invoice issued to Toolcraft.
Warranty. Seller warrants that all goods furnished by it under the Purchase Order shall be: (1) new, merchantable, and free from defects in design, materials, workmanship, and construction; (2) fit and safe for any foreseeable purpose for which they are to be used by Toolcraft, its customers, and by the ultimate consumers of such goods; (3) conform to and are of the kind and quality described in the Purchase Order; (4) shall perform in the manner specified; and (5) comply with all requirements of the Purchase Order. Seller shall correct any defect at its sole expense, as directed by Toolcraft, by promptly: (1) repairing or replacing the defective goods in a timely manner; (2) furnishing Toolcraft any materials, parts and instructions necessary to enable Toolcraft or its customer to correct or have corrected the defect; or (3) refunding the purchase price, or an appropriate portion thereof, to Toolcraft. This warranty shall survive inspection, acceptance, and payment. This warranty does not apply to effects of normal wear and tear. The foregoing warranty shall extend to, and be for the benefit of, Toolcraft, Toolcraft’s customers, and the ultimate consumers of the goods, and their respective successors and assigns. No disclaimer of any warranty by Seller is effective or accepted.
Compliance with Laws. Seller, and any goods, supplies, or services supplied or provided by Seller, shall comply with all applicable industry standards, laws, rules, regulations, orders, conventions, and ordinances of the country(ies) of origin and destination or that relate to the manufacture, labeling, transportation, importation, exportation, licensing, approval, or certification of the goods, supplies, or services, including but not limited to the California Safe Drinking Water and Toxic Enforcement Act of 1986 (“Proposition 65”). Seller will defend, hold harmless, and indemnify Toolcraft from and against any and all liability, claims, demands, damages, or expenses (including reasonable attorney or other professional fees and disbursements) arising from or relating to Seller’s noncompliance with this section.
Indemnification. Seller shall defend, indemnify, and hold harmless Toolcraft and its officers, agents, employees, successors, and assigns from and against any and all liabilities, damages, costs, losses, claims, demands, actions, breach of warranties, and expenses (including reasonable attorney’s fees) arising out of, resulting from, or relating to any breach (or alleged acts or omissions that if true would be a breach) of any of Seller’s representations, warranties, or obligations set forth in this Purchase Order or Seller’s negligence or misconduct regarding the Purchase Order, including but not limited to loss of use resulting therefrom, claims or fines by governmental authorities, and resulting from the death of or injury to any person or damage to any property, except to the extent caused by normal wear and tear. Toolcraft shall have the right to reasonably control the defense or settlement of any litigation actually brought or threatened against it without reducing Toolcraft’s rights to be indemnified by Seller. Seller’s indemnification obligations survive delivery and acceptance of goods.
Changes. The Purchase Order may not be changed, amended, or modified except upon the prior written authorization of Toolcraft.
Termination and Suspension. Toolcraft may terminate or suspend the Purchase Order for its convenience, in whole or in part, at any time by written notice. Upon receipt of such notice, Seller shall immediately discontinue all work on the cancelled portion, except such work as may be necessary to preserve and protect the goods and materials then in process, and use its best efforts to cancel and terminate all existing orders which are chargeable and relate to the cancelled portion. For termination of convenience, Toolcraft shall remit payment to Seller for goods delivered and raw materials and work completed through the date of termination, but in no event shall Toolcraft be liable for any other damages, including but not limited to consequential or punitive damages or lost profits. Toolcraft shall have the right, by written notice to Seller, to terminate the whole or any part of the Purchase Order for default if: (1) Seller fails to deliver the goods by the delivery date on the Purchase Order or in the manner provided by the Purchase Order; (2) reasonable grounds for insecurity arise with respect to Seller’s performance and Seller fails to furnish adequate assurances within 10 days after a written demand by Toolcraft for such assurance; or (3) Seller becomes insolvent or makes an assignment for the benefit of creditors, commits an act of bankruptcy or files or has filed against it a petition in bankruptcy or reorganization proceedings. In the event Toolcraft terminates the Purchase Order, in whole or in part, for default, Toolcraft shall be entitled to all rights and remedies provided by law.
Severability. If any provision of the Purchase Order shall to any extent be held invalid or unenforceable by a court of competent jurisdiction, then: (a) the remainder of the Purchase Order shall not be affected, and every remaining provision of the Purchase Order shall be valid and binding to the fullest extent permitted by law, and (b) a suitable and equitable provision shall be substituted for such invalid or unenforceable provision in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision.
Waiver; Remedies; Survival. Failure to insist upon full performance of any of the terms, conditions or specifications or to exercise any rights or remedies shall not be deemed a waiver. The remedies reserved in this Purchase Order for Toolcraft shall be cumulative and in addition to any other or further remedies provided at law or in equity. All indemnification, payment, warranty, title, and remedies provisions shall survive the termination, cancellation, or expiration of this Purchase Order.
Governing Law and Venue. The Purchase Order shall be governed by the laws of the State of South Carolina. Seller hereby: (i) submits to the exclusive jurisdiction of the federal or State courts located in Lexington County, South Carolina, in any litigation, suit, action or proceeding arising out of, or relating to, the Purchase Order; (ii) knowingly, voluntarily, and irrevocably consents to the personal jurisdiction and venue of said court; and, (iii) waives any right to dismiss or transfer it may have based on improper venue or forum nonconveniens to the conduct of any proceeding in said court.