Purchase order terms and conditions

HAYNES FURNITURE

PURCHASE ORDER TERMS AND CONDITIONS

1. Acceptance:  No terms and conditions other than those set forth in this Purchase Order (“Order”) and the Vendor Compliance Manual (VCM), hereby incorporated, shall be binding upon Haynes Furniture Company, Incorporated or its affiliates (collectively, “Haynes”) unless agreed to in writing by Haynes.  Notwithstanding any other term or condition of this Order, Haynes reserves the right to revoke this Order at any time prior to receipt of notice of acceptance by Vendor, and this Order shall expire ten (10) days after the date of this Order if such notice of acceptance is not promptly provided to Haynes.  Any terms and conditions contained in any proposal or acknowledgment of this Order which are different from or in addition to these are hereby rejected unless agreed to in writing by Haynes.  Vendor’s provision of goods and/or acceptance of this Order via a purchase order acknowledgement pursuant to this Order constitutes Vendor’s acceptance of these terms and conditions without exception.  Haynes expressly rejects any terms and conditions proposed by Vendor which are in addition to or which conflict with these terms and conditions and/or those conditions of the VCM, without need for further notice of rejection, unless otherwise indicated in writing.

2. Delivery:  Time is of the essence in the performance of this Order by Vendor.  This Order is subject to cancellation at Vendor's risk if not shipped by the time specified in this Order.  Vendor agrees to comply with Haynes’s shipping or delivery schedules (as applicable) without any delay.  Unless otherwise specified on the face of this Order, shipments will be considered FOB point of origin.  Vendor shall promptly notify Haynes of applicable shipment dates and the estimated times of arrival.  Vendor must obtain the prior approval of Haynes for any delay in shipment or backorder of goods.  If it becomes necessary for Vendor to ship by a more expensive mode than agreed to by Haynes, Vendor shall pay any resulting premium transportation cost unless Vendor can establish to Haynes’s satisfaction that the necessity for the change in routing is occasioned by force majeure events.  Vendor will pack and mark goods in accordance with Haynes’s instructions, secure the lowest transportation rates, meet carrier requirements and assure delivery free of damage and deterioration. Prices specified include all charges and expenses for containers, packing and crating, and transportation. All containers, packing and crating material will become the property of Haynes on delivery. Haynes may specify the carrier and/or method of transportation and Vendor will process shipping documents and route shipment of the goods accordingly per Haynes’s instructions.

3. Inspection and Approvals:  The goods delivered are subject to inspection and approval by Haynes prior to acceptance.  An itemized packing slip referencing this Order must be included with all deliveries and should be securely fastened to the outside of the shipping container.  All goods, regardless of prior acceptance by Haynes, not fully up to standard and not in compliance with applicable specifications or warranties or shipped or performed contrary to instructions, in defective condition, in excess of ordered quantities, in nonconforming containers, or alleged to violate any statute, ordinance, administrative order, rule, or regulation may, at Haynes’s option, either (i) be rejected by Haynes and returned or held at Vendor's risk and expense, (ii) require correction to Haynes’s satisfaction, or (iii) be retained by Haynes, subject to an equitable deduction for the estimated difference in value as reasonably determined by Vendor and Haynes. Any shipments involving infestations of insects or other vermin capable of causing destruction to furniture product are subject to immediate destruction by Haynes at no liability to Haynes  Shipping charges for returns are at Vendor’s expense.   

4. Title and Risk of Loss:  Notwithstanding any inspection made prior to delivery, Vendor shall bear all risk of loss (except as resulting from the gross negligence of officers, agents, or employees of Haynes acting within the scope of their employment) until final inspection and acceptance by Haynes.  Vendor shall bear all risk of loss with respect to any goods rejected by Haynes.  Title to the goods shall transfer to Haynes on acceptance by Haynes.  All goods delivered under this Order shall be free of all liens.

5. Substitutions and Parts:  No substitution will be permitted without written consent of Haynes.  Vendor agrees that it will make spare parts for the goods available for purchase by Haynes at a reasonable price for a period of at least five (5) years from the date of delivery.

6. Payment:  Vendor shall invoice Haynes for the delivery of goods as provided in this Order.  Haynes reserves the right to return all incorrect or disputed invoices.  The invoice shall reflect the lower of (i) the price(s) agreed upon and specified in this Order or (ii) the Vendor’s quoted or advertised price on the date of shipment or performance.  Unless otherwise specified on the face of this Order, Unless otherwise agreed to, Haynes shall pay the invoiced amount within sixty (60) days after receipt of goods or invoice, whichever is received later.  Haynes shall be entitled at all times to set-off any amount owing from Vendor to Haynes, whether under this Order or otherwise, against any amounts otherwise payable to Vendor.

7. Warranties:  Vendor expressly warrants that the goods ordered shall be merchantable; shall be new and will not be used or refurbished; shall conform to this Order, to specifications, drawings, and other descriptions referenced in this Order, and to any accepted samples; shall be free from defects in materials and workmanship; shall be free from defects in design unless the design was supplied by Haynes; and shall be fit and safe for the intended purposes.  Vendor warrants that it has clear title to the goods, and that the goods shall be delivered free of liens or encumbrances.  Vendor warrants that any goods provided hereunder, except to the extent that such goods or the design of such goods are furnished to Vender by Haynes, will not violate or infringe upon any trademark, copyright, patent or other legal right of third parties, in manufacturing, processing, or selling the goods covered by this Order. 

8. Confidentiality:  Any information or documents disclosed to Vendor by Haynes in connection with this Order remains Haynes’s property.  Such information or documents are provided to Vendor solely for the purpose of Vendor’s performance of this Order and on the express condition that neither this Order nor the information contained therein or provided in connection therewith shall be disclosed to or discussed with any third party without Haynes’s prior express written consent.  Haynes reserves the right to request that Vendor return all such information to Haynes or destroy it.  Vendor's obligations under this paragraph shall survive the cancellation, termination or other completion of this Order.

9. Indemnity:  Vendor agrees to indemnify, hold harmless and defend Haynes, its successors, assigns, agents, customers and users of the goods against any and all loss, cost, damage (including liquidated damages, punitive damages and exemplary damages), claim, liability, including costs, expenses and attorney's fees, which may be incurred on account of any suit, claim, judgment, or demand arising from or relating to: death, bodily injury and or property damage arising from or relating to the sale, use and or distribution of the goods; claims of improper manufacture, labeling, invoicing; violation of trade secret; infringement or alleged infringement of any patent, registered or industrial design, trademark or trade name, trade dress, copyright or other protected right in any country resulting from any sale, use or manufacture of any goods delivered hereunder; or Vendor’s breach of the terms, conditions, representations or warranties of this Order, and to pay and discharge all judgments, decrees, and awards rendered therein or by reason thereof.  Vendor agrees to engage legal counsel satisfactory to Haynes in any such claim or suit and to bear all expenses, fees and costs associated therewith.  Haynes reserves the right to be represented in any such action by its own counsel at its own expense.  Haynes shall promptly notify Vendor of any claim or suit instituted against it.

10.          LIMITATION OF LIABILITY:  IN NO EVENT WILL HAYNES BE LIABLE TO VENDOR OR ANY THIRD PARTY, IN CONTRACT, TORT OR OTHERWISE, FOR ANY LOSS OF PROFITS OR BUSINESS, OR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, ARISING FROM OR AS A RESULT OF THESE CONTRACT TERMS, ANY ORDER OR ANY AGREEMENT BETWEEN THE PARTIES RELATING TO THE PRODUCTS VENDOR PROVIDES, EVEN IF HAYNES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11.          Force Majeure:  Either party’s performance under this Order may be suspended or terminated upon notice to the other party if timely performance is interrupted or prevented by:  delays or interruptions in transportation; labor disputes, strikes or lockouts; embargoes; acts of God; inability to obtain labor or specified materials or reasonable substitutes for them; governmental restrictions, regulations, controls, or customs; terrorism; judicial orders, enemy or hostile governmental action, civil commotion, fire or other casualty, or other causes, except financial, beyond such party’s reasonable control.

12.          Termination:  Either party may terminate this Order if the other party becomes insolvent, makes an assignment for the benefit of creditors, suffers or permits the appointment of a receiver, trustee in bankruptcy or similar officer for all or parts of its business or assets or avails itself of or becomes subject to any bankruptcy proceeding under the laws or any jurisdiction relating to insolvency or the protection of rights of creditors.  

13.          Choice of Law:  The parties agree that the law of the Commonwealth of Virginia, United States of America, shall govern and apply to the interpretation and application of the terms and conditions of this Order, and they shall not be bound by the U.N. Convention on the International Sale of Goods.  Vendor hereby consents to the jurisdiction of any local, state, or federal court located within the Commonwealth of Virginia and waives any objection which Vendor may have based on improper venue or forum non conveniens to the conduct of any proceeding in any such court.

14.          Compliance with Law:  Vendor warrants that all goods provided pursuant to any Orders comply with all laws applicable in any jurisdiction: (i) in which any such goods are manufactured; (ii) through or to which any such goods are transported, delivered or used; and (iii) in which any such goods are provided.  Vendor warrants that all goods provided pursuant to any Orders shall comply with any laws of the United States of America that apply to the manufacture, labeling, invoicing and sale of the goods covered by this Order, wherever manufactured, transported, delivered or provided, or that apply to Haynes in regard to such goods.  Such compliance shall include all laws, rules and regulations relating to consumer product safety and hazardous materials as those terms are defined under the laws, rules and regulations of the United States, any state or local jurisdiction.  By accepting this Order, Vendor certifies that the goods were so manufactured.

15.          Prevailing Party:  In the event it becomes necessary for either party to enforce the terms of this Order, the prevailing party shall be entitled to recover its reasonable attorney’s fees and costs.

16.          Taxes:  Vendor is liable for and shall pay all taxes imposed on or measured by this Order except those to which Haynes specifically agrees or is required by law to pay and which are separately stated on Vendor's invoice.  Prices shall not include any taxes, impositions, and charges for which Haynes has furnished an exemption certificate.

17.          Insurance:  Vendor agrees to carry and maintain at all times after this sale, product liability insurance with respect to personal injury and property damage with limits of at least $1,000,000 each accident, $3,000,000 aggregate.  Said insurance shall cover all products which are the subject of this Order, and Vendor will, if requested to do so, furnish Haynes with proper evidence of such coverage.  The requirement for carrying insurance shall not be in derogation of any other provision of this Order.

18.          Independent Contractor:  In performing its obligations under this Order, the Vendor will act as an independent contractor and not as an employee or agent of Haynes.

19.          Publicity:  Vendor shall not, in any way or form, publicize or advertise the fact that Vendor is providing goods to Haynes without the prior written consent of Haynes.

20.          Amendment:  This Order may only be amended by a writing signed by both Vendor and Haynes.

21.          Waiver:  The failure of Haynes to enforce any of the provisions of this Order shall not be construed to be a waiver of such provisions or limit the right of Haynes thereafter to enforce each and every provision of this Order.

22.          Severability:  If any provision of this Order shall be held invalid or unenforceable, the remainder of this Order that can be given effect without such invalid or unenforceable provision shall remain in full force and effect.  If any provision is held invalid or unenforceable with respect to particular circumstances, it shall remain in full force and effect in all other circumstances.

23.          Assignment:  Vendor shall not assign its rights or delegate its performance hereunder, nor any interest herein, without Haynes’s prior written consent, and any attempted assignment or delegation without such consent shall be null and void.

24.          Remedies:  The rights and remedies provided to Haynes in this Order shall be cumulative and in addition to any other rights and remedies provided by law or equity.