UNLESS OTHERWISE EXPRESSLY AGREED IN WRITING BY COMPUTYPE, ALL PURCHASES AND PURCHASE ORDERS ARE SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS
Offer and Acceptance. Purchase documents and Purchase Orders are an offer to enter into an agreement. For an agreement to be valid and effective, it must be executed by a duly authorized agent of Computype, Inc. (“Computype”). Computype may revoke, amend or modify this offer at any time prior to Seller's acceptance. Any of the following acts constitute Seller's acceptance of this Agreement, any Purchase Order, and all terms and conditions in this document: (a) Seller's execution and return of the acknowledgment copy of this document or Seller's own acknowledgment form, (b) Seller's commencement of performance pursuant to this Agreement or a Purchase Order, (c) Seller's delivery of any of the products ordered, or (d) Seller's acceptance of any payment by Computype. Acceptance of a Purchase Order is expressly limited to and conditioned upon acceptance of the terms set forth below, none of which can be altered or amended without Computype's prior written agreement. Acceptance shall be binding upon Seller and Seller's successors, assigns and delegates.
Prices. All prices shall be as stated in the Purchase Order and are firm and not subject to increase or escalation. Seller represents and warrants that the prices set forth in the Purchase Order are at least as low as those currently being quoted by Seller to commercial users for the same products, in similar quantities, under similar circumstances. If no price is stated for any product, the price for that product shall be the lowest price currently quoted or charged by the Seller for that product, but in no event higher than the price most recently quoted or charged to Computype by Seller for that product.
Payment Terms. Unless Computype has otherwise agreed in writing, payment terms shall be net sixty (60) days from the later of the date Computype receives Seller's invoice or the date on which Computype accepts the products. Computype shall be entitled to any discounts Seller offers for prepayment.
Taxes. Unless otherwise provided in this Agreement or Purchase Order, the price includes, and Seller shall pay, all present or future sales, use, revenue, excise or other taxes applicable to the products or equipment which are the subject of this Agreement or Purchase Order.
Quantities. Unless Computype has otherwise agreed in writing, Seller must deliver the exact quantities specified by Computype. Computype reserves the right to reject incomplete deliveries and to return excess quantities delivered, at Seller's risk and expense.
Packaging and Shipments. All products shall be packaged, marked and otherwise prepared for shipment by Seller in suitable containers in accordance with sound commercial practices. Seller shall mark on containers all necessary handling, loading and shipping instructions. An itemized packing list shall be included with each shipment. Seller shall pay all costs of packaging, transportation and insurance in delivering the products to Computype at the location specified by Computype. Computype shall have the option of selecting the shipper and the method of shipment.
Delivery. Computype's production and marketing schedule are established in part in reliance upon the delivery information specified in this Agreement or Purchase Order. Time and place of delivery are therefore of the essence in the performance of the Agreement. Any provision for delivery in installments shall not be construed as making the obligations of Seller severable. If delivery cannot be made at the specified time and place, Seller shall promptly notify Computype of the earliest possible date for conforming delivery. Notwithstanding such notice, and unless otherwise agreed by Computype in writing, Seller's failure to effect conforming delivery shall entitle Computype to revoke any acceptance, to cancel any order without liability to Seller, to receive a full refund of any amounts paid, to purchase substitute products elsewhere, to return at Seller's risk and expense all or any part of the products delivered, and to hold Seller accountable for any loss or additional costs incurred. Computype's receipt or acceptance of all or part of a nonconforming delivery shall not constitute a waiver of any claim, right or remedy Computype has under this Agreement or Purchase Order or under applicable law.
Title and Risk of Loss. Title to and risk of loss for products (other than software products) purchased and that conform to this Agreement and Purchase Order shall pass to Computype upon receipt and acceptance at the location specified by Computype. Title to and risk of loss for nonconforming products and for all other property provided to Computype by Seller shall remain with Seller.
Inspection and Rejection. Computype may inspect and test all products at reasonable times before, during and after manufacture. If any inspection or test is made on Seller's premises Seller shall provide reasonable facilities and assistance for the safety and convenience of Computype's inspectors in such manner as shall not unreasonably hinder or delay Seller's performance. All products shall be received subject to Computype's inspection, testing, approval and acceptance at Computype's premises notwithstanding any inspection or testing at Seller's premises or any prior payment for such products. Products rejected by Computype as not conforming to this Agreement or Purchase Order may be returned to Seller at Seller's risk and expense and shall not be replaced by Seller without Computype's written authorization.
Warranties. In addition to any other express or implied warranties, Seller warrants that all products delivered to Computype will be merchantable, new, suitable for the uses intended, of the grade and quality specified, free from all defects in design, material and workmanship, will conform to all samples, drawings, descriptions and specifications furnished, and will be free of liens and encumbrances. Seller warrants that software products provided to Computype will perform substantially in accordance with applicable product specifications in effect at the time of delivery. These warranties shall survive any delivery, inspection, acceptance, payment or resale of the products and shall extend to Computype and Computype's customers. These warranties shall be construed as conditions as well as warranties and shall not be deemed to exclude Seller's standard warranties or other rights or warranties which Computype may have or obtain. At its expense and option, Seller shall replace or repair any products not conforming to the foregoing warranties and shall correct all software products not performing substantially in accordance with applicable product specifications. If after notice Seller fails promptly to replace or repair any such product or to correct any such software product, Computype may do so without further notice and Seller shall reimburse Computype for all costs incurred by Computype. If Computype is unable to replace or repair any such product or to correct any such software product, Seller shall promptly refund to Computype the full purchase price paid by Computype for such product. Seller acknowledges and agrees that it shall also be and remain liable to Computype for all incidental, indirect, special or consequential damages or lost profits arising from or relating to the Seller’s performance or nonperformance under this Agreement or the Purchase Order.
Confidentiality. The Seller acknowledges that it will have access to certain of Computype’s confidential information and material, and that this information and material constitute valuable and proprietary trade secrets. The parties may have executed a separate Confidentiality Agreement, in which case the terms of the separate Confidentiality Agreement shall be binding. In addition, Seller acknowledges and agrees it will not use in any way for its own account or the account of any third party, nor disclose to any third party any of Computype’s Confidential Information and will take reasonable precautions to protect the confidentiality of all such information. Seller acknowledges and agrees that all intellectual and industrial property, as well as the terms of this Agreement and any Purchase Order and the existence and content of the relationship between the Seller and Computype, shall be treated as confidential, and shall not be used or disclosed by Seller except as required in the course of performing this Agreement or any Purchase Order for Computype. Unless Computype has otherwise agreed in writing, information and material furnished or disclosed by Seller to Computype shall not be considered to be confidential or proprietary, and shall be acquired by Computype free of restrictions of any kind.
Intellectual Property; Noninfringement (a) The Seller acknowledges and agrees that all specifications, drawings, diagrams, schematics, sketches, models, samples, designs, technical information or data, written, oral, or otherwise, furnished to the Seller by Computype or on Computype's behalf is and shall remain Computype's sole and exclusive property, and shall be returned promptly to Computype or Computype's designee (together with all copies) upon the earlier of Computype's request or the termination or completion of any Purchase Order. (b) The Seller acknowledges and agrees that any copyrightable product made, designed or developed by or for Computype in connection with the performance of this Agreement or any Purchase Order shall be a "work made for hire" within the meaning of the Copyright Law. In addition, the Seller hereby assigns to Computype all intellectual property rights, all moral rights, the entire copyright, any and all inventions, discoveries, computer programs, software, data, technologies, designs, innovations and improvements, and the related patents, copyrights, trademarks, trade names and other industrial and intellectual property rights and applications, made or conceived by Seller or its agents or employees in connection with the performance of this Agreement or Purchase Order. The Seller hereby appoints any of Computype's officers as its duly authorized attorney, and Seller agrees to cooperate to the extent Computype may reasonably request, for the purposes of executing, filing, prosecuting and protecting the foregoing. (c) The Seller represents and warrants that the products delivered to Computype will not and do not infringe any United States or foreign patent, trademark, trade secret or copyright, or any proprietary, intellectual property, industrial property, contract or other right held by any third party. (d) The Seller agrees to indemnify, defend and hold Computype, its successors and customers harmless from any liability, claim, demand, or expense and the consequences of any liability of any nature asserted by any person or entity against Computype in connection with or arising from any actual or alleged direct or contributory infringement or alleged inducement to infringe any United States or foreign patent, trademark, copyright or other intellectual property right, by reason of the manufacture, use, or sale of goods or services ordered, including infringement arising out of compliance with specifications furnished by Computype, or for any actual or alleged misuse or misappropriation of a trade secret. Seller further waives any claim against Computype under the Uniform Commercial Code or otherwise that any such infringement arose out of compliance with Computype’s specifications. (e) The Seller shall include all provisions of this Section for the benefit of Computype in all subcontracts made under this Agreement or any Purchase Order.
Tools and Equipment. All tools, dies, molds, patterns, jigs, masks and other equipment and materials furnished by Computype to Seller or paid for by Computype, directly or indirectly, and any replacements shall be and remain Computype's property. Seller shall safely store such property separately from Seller's property, shall plainly identify such property as Computype's property and shall not use such property in any manner whatsoever except in filling Purchase Orders for Computype. All such property shall be held at Seller's risk, shall be insured by Seller at its expense for an amount equal to its replacement cost and with Computype named as loss payee and shall be returned promptly to Computype or Computype's designee upon the earlier of Computype's request or the termination or completion of this Agreement or any Purchase Order.
Change. (a) Computype may, at any time and from time to time, by written notice to Seller, make changes in specifications, designs, drawings, method of packing or shipment, quantity ordered, destinations and delivery schedules, and Seller shall immediately comply with these changes. If any such change causes a material increase or decrease in Seller's cost or the time for performance, an equitable adjustment shall be made to the price or delivery schedule, or both. Any claim by Seller for adjustment under this Section shall be deemed waived unless made in writing within 10 days after receipt of written notice by Computype of the change. Nothing contained in this Section shall excuse Seller from diligently proceeding with the order as changed. (b) Seller shall notify Computype of any proposed change to the product ordered or its production. The Seller shall provide the notice of any proposed change in adequate time for Computype to consider such change such that it will not cause any delay in deliveries. No change, modification or revision of any Purchase Order or any product to be produced by the Seller shall be binding upon Computype unless in writing and signed by Computype's duly authorized representative. Without limiting the generality of this provision, “change” includes any raw material change, any process condition change, any manufacturing location change, any manufacturing equipment change and the like.
Compliance with Laws. (a) Seller shall comply with all applicable governmental laws, ordinances, codes, rules, regulations, programs, plans and orders in the performance of this Agreement or any Purchase Order, including, without limitation all import and export requirements. At Computype's request, Seller shall provide appropriate certificates of compliance. (b) Seller shall obtain all permits or licenses required in connection with the manufacture, sale, shipment and installation of the products ordered by Computype. (c) If in connection with the products to be delivered under this Agreement or any Purchase Order, Seller is required to comply with the Occupational Safety and Health Act's hazardous communications standard Seller agrees to provide Computype with copies of the applicable Material Safety Data Sheets at the time of delivery to Computype of the products ordered by Computype that require such compliance, and any updates of such sheets required to be delivered by Seller to Computype under such laws and regulations.
Government Contract Provisions. Purchase Orders that specify a government contract number or otherwise indicate that the products ordered or purchased are intended for use under a government contract or subcontract shall be subject to and deemed to incorporate all clauses and provisions contained in such contract or subcontract that are applicable to Seller.
Cancellation. (a) Computype may, by written notice to Seller, immediately cancel the whole or any portion of this Agreement or any Purchase Order in the event of (i) proceedings, voluntary or involuntary, in bankruptcy or insolvency, by or against Seller, (ii) the appointment, with or without Seller's consent, of any trustee or receiver for any substantial portion of Seller's assets, (iii) any assignment for the benefit of Seller's creditors or (iv) Seller's breach of any provision contained in this Agreement or any Purchase Order. In the event of any such cancellation, Computype may procure, upon such terms and in such manner as Computype may deem appropriate, products comparable to the products covered by the Purchase Order so terminated, and Seller shall be liable to Computype for any excess cost of such comparable products. (b) Computype may at any time and for any reason, on ten (10) days written notice, terminate this Agreement and all its obligations under any outstanding Purchase Order. (c) In the event of any such cancellation, Computype may require Seller to deliver, in the manner and to the extent directed by Computype, any completed or partially completed products against Computype's payment of the portion of the price properly allocable to such products. Seller shall continue performance under this Agreement and an outstanding Purchase Order to the extent not canceled. Except to the extent specifically set forth in this Agreement or the Purchase Order, Computype shall have no obligation or liability to Seller in respect of the canceled portion of this Agreement or an outstanding Purchase Order. Computype's rights set forth in this Section shall be in addition to Computype's other rights in the event of Seller's default. In the event of any such cancellation, all deposits or prepayments shall be deemed to have been held in trust for Computype's benefit and shall be returned to Computype promptly upon request. (d) All of Seller's obligations set forth in this Agreement and any Purchase Order shall survive the cancellation, termination or completion of this Agreement and any outstanding Purchase Order.
Assignment. Seller shall not delegate or subcontract any duties or assign any rights or claims under this Agreement or any Purchase Order without Computype's prior written consent, and any such attempted delegation, subcontract or assignment without such consent shall be void.
Governing Law and Venue. This Agreement and each Purchase Order shall be governed by and construed under and in accordance with the laws of the State of Minnesota, United States of America (without regard to conflicts of laws principles), and specifically excluding from application to this Agreement and each Purchase Order that law known as the United Nations Convention on the International Sale of Goods. The venue of any legal action arising out of this Agreement or Purchase Order shall be the Federal or State courts located in Hennepin County or Ramsey County, Minnesota, U.S.A.
Authorization. Seller represents and warrants that it has been duly authorized to execute, deliver and perform this Agreement and each Purchase Order, and the person signing on Seller's behalf warrants that he/she has the power and authority to do so.
Indemnification. Seller shall indemnify and hold Computype, its officers, directors, employees agents and representatives harmless against any claim, loss, liability, damage, cost or expense, including attorneys' fees and court costs, and shall defend all actions and proceedings at its sole expense, arising from or resulting from this Agreement and each Purchase Order, or any alleged breach of this Agreement or a Purchase Order, or of any representation, warranty or agreement made by Seller in this Agreement or a Purchase Order, including, without limitation, Seller's obligation to deliver products pursuant to this Agreement or any Purchase Order and Seller's representations, warranties and agreements contained in this Agreement or Purchase Order. This provision shall survive termination or expiration of any Purchase Order or agreement between the Seller and Computype.
Insurance. Seller shall maintain with an insurance company or companies reasonably acceptable to Computype comprehensive general liability insurance (including liability hereunder) in the minimum amount of $1 million. At Computype's request, a certificate of such insurance shall be filed with Computype and shall provide for 10 days' prior written notice to Computype of cancellation or material change. Liability insurance limits shall not be construed to limit Computype's right of indemnity under this Agreement.
Set-off. Any amount owed to Seller by Computype or by any of Computype's affiliates shall be subject to deduction for any set-off, counterclaim or indemnification right arising out of this or any other Agreement or Purchase Order to Seller from Computype or any of Computype's affiliates.
Severability; Remedies; Waiver. In the event that any one or more provisions contained in this Agreement or any Purchase Order shall be held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. The remedies contained in this Agreement and any Purchase Order are cumulative and in addition to any other remedies at law or equity. Computype's failure to enforce or its waiver of a breach of any provision of this Agreement or any Purchase Order shall not constitute a waiver of any other breach or of such provision.
Notices. Any notice or communication required or permitted under this Agreement shall be in writing and shall be deemed received when (a) personally delivered; or (b) three days after being sent via first-class mail, postage prepaid; or (c) upon dispatch if sent via facsimile or other electronic means to a party with appropriate evidence of delivery, in each case at the address specified in this document or at such other address as either party may from time to time designate to the other.
Entire Agreement. This Agreement is the complete and exclusive statement of the agreement between Computype and Seller with respect to Computype's purchase of products. No waiver, consent, modification, amendment or change of the terms of this Agreement shall be binding unless in writing and signed by Computype and Seller.
Additional or Inconsistent Terms. Any term or condition set forth in any quote, acknowledgement, other document provided by Seller to Computype, or on any Seller web site or other or similar electronic arrangement, which is in any way different from, inconsistent with or in addition to the terms and conditions set forth in this Agreement will not become a part of this Agreement or be binding in any respect on Computype notwithstanding any provision set forth in such a document or web site. If Seller objects to any term or condition in this document, this objection must be in writing and received by Computype prior to Seller's delivery of any product. Computype's failure to object to terms contained in any communication from Seller, or any Seller web site or other electronic arrangement will not be a waiver of the terms set forth in this Agreement. Seller shall not condition any delivery upon the abrogation or modification of any of the terms and conditions included in this Agreement or a Computype Purchase Order. In case of a conflict between the terms or conditions on the face of a Purchase Order and the terms and conditions contained in these Terms & Conditions, these Terms and Conditions shall control.
Work to be Completed on Computype's Premises by Seller. In the event that Seller is required, as a part of its fulfillment of the terms of this Agreement or any Purchase Order, to perform work or services on Computype's premises, Seller assumes the entire responsibility and liability for losses, expenses, damage, demands and claims in connection with or arising out of any injury or alleged injury (including death) or damage to property, sustained or alleged to have been sustained in connection with or to have arisen out of the performance of such work or services by Seller. Seller shall indemnify and hold Computype harmless from and against any and all claims, demands, actions, causes of action, suits, damages, expenses (including attorneys' fees) and liabilities, contingent or otherwise, whatsoever resulting from or arising in any manner on account of or by reason of any injury to or death of any person or any damages to or loss of property which may occur or be alleged to have occurred as a result of or in connection with the performance of such work or services in connection with this Purchase Order.
29 C.F.R. Part 471. To the extent required by law or applicable regulation, the text of 29 C.F.R. Part 471 Appendix A (as amended or modified from time to time) is hereby incorporated by reference in this Agreement. The Seller shall comply with all requirements of 29 C.F.R. Part 471 Appendix A (as amended or modified from time to time). The Seller shall indemnify Computype, its employees and affiliates, and hold them harmless from all claims, losses, expenses and damages (including attorneys’ fees) that arise from or are alleged to arise from the Seller’s failure to comply with the requirements of this section.