Jonny Pops LLC Purchase Order Terms and Conditions

Jonny Pops LLC Purchase Order Terms and Conditions

Applicability. These Purchase Order Terms and Conditions (these “Terms”) govern any purchase order issued by Jonny Pops LLC (“Buyer”) to which these Terms are attached (the “PO”). The issuance of a PO to the party identified as the seller in the PO (“Seller”) is an offer by Buyer for the goods (the “Goods”) or services (the “Services”) specified in the PO from Seller in accordance with and subject to these Terms. Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods and Services covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms. These Terms, together with the terms of the PO, are referred to herein as the “Order”. The Order, together with any documents incorporated therein by reference, constitutes the sole and entire agreement of the parties with respect to the Order, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the Order. The Order expressly limits Seller’s acceptance to the terms of the Order. The Order’s terms and conditions prevail over any terms or conditions contained in any other documentation and expressly exclude any of Seller’s general terms and conditions of sale or any other document issued by Seller in connection with the Order.
Acceptance. The Order is not binding on Buyer until Seller accepts the Order by providing a written confirmation to Buyer (email acceptable), or signing and returning the Purchase Order, or starting performance in accordance with the Order, whichever occurs first. Buyer may withdraw the Order at any time before it is accepted by Seller. Further, Buyer reserves the right to cancel or modify all or any part of the undelivered portion(s) of the PO. In such event, Buyer shall have no obligation to pay any costs incurred by Seller in connection therewith.
Delivery Date; Shipping Requirements. Seller shall deliver the Goods in the quantities and on the date(s) specified in the PO (the “Delivery Date”). Timely delivery of the Goods and Services is of the essence. If Seller fails to deliver the Goods in full on the Delivery Date, Buyer, in its sole option, may: (a) agree in writing to a different Delivery Date; or (b) terminate the Order immediately, without liability to Seller, by providing written notice to Seller, and Seller shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses attributable to Seller’s failure to deliver the Goods on the Delivery Date. Seller shall deliver the Goods to the address specified in the PO (the “Delivery Point”). Delivery shall be made at the Delivery Point in accordance with the terms in the PO. Seller is responsible for all shipping costs and shall package Goods in accordance with Buyer’s packing requirements. Seller shall (a) include packing slips all shipments, and (b) include the applicable PO number on each package, packing slip and invoice. If Seller delivers more than the quantity of Goods set forth in the PO, Buyer may reject any or all excess Goods and return such Goods at Seller’s expense.
Seller's Obligations Regarding Services. Seller shall: (a) before the date on which the Services are to start, obtain, and at all times during the term of this Agreement, maintain, all necessary licenses and consents and comply with all relevant laws applicable to the provision of the Services; (b) comply with all rules, regulations and policies of Buyer, including security procedures concerning systems and data and remote access thereto, building security procedures, and general health and safety practices and procedures; (c) maintain complete and accurate records relating to the provision of the Services under this Agreement, including records of the time spent and materials used by Seller in providing the Services in such form as Buyer shall approve; (d) ensure that all persons, whether employees, agents, subcontractors, or anyone acting for or on behalf of the Seller, are properly licensed, certified or accredited as required by applicable law and are suitably skilled, experienced and qualified to perform the Services; (e) ensure that all of its equipment used in the provision of the Services is in good working order and suitable for the purposes for which it is used, and conforms to all relevant legal standards and standards specified by the Buyer; and (f) keep and maintain any Buyer equipment in its possession in good working order and shall not dispose of or use such equipment other than in accordance with the Buyer’s written instructions or authorization.
Price. The price of the Goods and Services shall be the price specified in the PO, exclusive of any and all taxes, fees, and other charges. If no price is specified in the PO, the price of the Goods and Services shall be the lowest of (a) the last price quoted by Seller, (b) the price last paid by Buyer, or (c) the price last communicated by Buyer. Seller agrees that Buyer is not required to purchase any fixed quantity or output of Goods other than the quantity specified in any PO, notwithstanding any prior quantity commitment. Acceptance of the PO creates a new contract. Buyer does not agree to pay any accessorial charges, fees, duties, charge backs, or other costs, unless agreed upon in writing by Buyer.
Payment. Unless otherwise agreed by the parties in writing, all invoices shall be paid by Buyer according to the terms specified on the PO.
Title; Risk of Loss. Title passes to Buyer upon delivery of the Goods to the Delivery Point. Delivery of Goods shall be FOB Delivery Point, unless otherwise stated on the PO. Seller shall be responsible for the safe and proper loading of Goods onto the transportation carrier, and risk of loss or damage to the Goods shall transfer to Buyer only upon Buyer’s receipt and acceptance of the unloaded Goods at the Delivery Point. Unless otherwise stated in this PO, Seller is responsible of all transportation, loading and freight charges and expenses.
Inspection and Rejection of Nonconforming Goods. Buyer has the right to inspect the Goods on or after the Delivery Date. Buyer, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines the Goods are damaged, defective, or otherwise nonconforming. If Buyer rejects any portion of the Goods, Buyer has the right, at its sole option and effective upon written notice to Seller, to: (a) terminate the Order in its entirety, without liability to Seller; (b) accept the Goods at a reasonably reduced price; or (c) require repair or replacement of the rejected Goods. If Buyer requires repair or replacement of the Goods, Seller shall, at its risk and expense, promptly repair or replace the rejected Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the rejected Goods and the delivery of repaired or replacement Goods. If Seller fails to timely deliver repaired or replacement Goods, Buyer may replace them with goods from a third party and charge Seller the cost thereof and terminate the Order for cause. Any exercise by Buyer of its rights and remedies under this Section 7 shall not reduce Seller’s obligations or Buyer’s rights and remedies under the Order or applicable law, and Buyer shall have the right to conduct further inspections after Seller has carried out any remedial actions.
Warranties. Seller represents, warrants, and covenants to Buyer that (a) the Goods are produced in compliance with all applicable federal, state and local laws, rules, regulations and ordinances; (b) all Goods will conform to Buyer’s specifications and be free from defects, fit for their intended purpose, and merchantable; (c) the Goods do not and will not infringe or misappropriate any third party’s patent or other intellectual property rights; (d) Buyer will receive good and valid title to the Goods, free and clear of all encumbrances and liens of any kind; and (e) Seller shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.
Insurance. Seller shall obtain and maintain, at its expense, comprehensive general liability insurance including products liability insurance with a combined single limit for bodily injury and property damage of not less than One Million U.S. Dollars ($1,000,000.00) per occurrence and Two Million U.S. Dollars ($2,000,000.00) in the aggregate. Buyer shall be named as an additional insured on all coverage available to Seller. All policies procured by Seller herein, except for workers’ compensation insurance, shall be written as primary policies, not contributing to or in excess of coverage that Buyer may carry.
Indemnification. Seller shall indemnify, defend and hold harmless, Buyer and its affiliated companies and its and their respective agents, members, shareholders, officers, directors, employees, and contractors (collectively, “Buyer Indemnified Parties”), from and against any and all third party actions, proceedings, claims, damages, expenses and fees (including attorneys’ fees and costs) incurred by Buyer Indemnified Parties arising out of or occurring in connection with (a) the Goods and/or Services, (b) Seller’s negligence, willful misconduct or breach of this Order, or (c) a claim alleging Buyer’s or such Buyer Indemnified Party’s use or possession of the Goods or use of the Services infringes or misappropriates the patent, copyright, trade secret, or other intellectual property right of any third party.
Termination. In addition to any other remedies that may be provided under these Terms or otherwise, Buyer may terminate the Order with immediate effect upon written notice to the Seller if Seller has not performed or complied with the Order, in whole or in part. If the Seller becomes insolvent, is generally unable to pay, or fails to pay, its debts as they become due, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors, then the Buyer may terminate the Order upon written notice to Seller. If Buyer terminates the Order for any reason, Seller’s sole and exclusive remedy is payment for the Goods and Services received and accepted by Buyer prior to the termination.
Waiver. No waiver by any party of any of the provisions of the Order shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the Order, no failure or delay in exercising any right, remedy, power, or privilege arising from the Order shall operate or be construed as a waiver thereof.
Confidential Information. All non-public, confidential, or proprietary information of Buyer, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Buyer to Seller, whether disclosed orally or disclosed or accessed in written, electronic, or other form or medium, and whether or not marked, designated, or otherwise identified as “confidential,” in connection with the Order is confidential, may only be used for the purpose of performing the Order and may not be disclosed unless authorized by Buyer in writing. Upon Buyer’s request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to the Seller at the time of disclosure; or (c) rightfully obtained by the Seller on a non-confidential basis from a third party.
Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in the Order shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
Assignment. Seller shall not assign, transfer, delegate, or subcontract any of its rights or obligations under the Order without the prior written consent of Buyer. Any purported assignment or delegation in violation of this Section 15 shall be null and void. No assignment or delegation shall relieve the Seller of any of its obligations hereunder. Buyer may at any time assign, transfer, delegate, or subcontract any or all of its rights or obligations under the Order without Seller’s prior written consent.
Choice of Law; Forum. All matters arising out of relating to each Order shall be governed by and construed in accordance with the internal laws of the State of Minnesota, without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of the State of Minnesota. Each party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other party in any way arising from or relating to the Order, including all exhibits, schedules, attachments, and appendices attached to the Order, and all contemplated transactions, including contract, equity, tort, fraud, and statutory claims, in any forum other than the federal or state courts located in the State of Minnesota.