Hargray Communications Group
PURCHASE ORDER TERMS AND CONDITIONS
GENERAL: All purchase orders issued (“Purchase Order“) are subject to these terms and conditions and all additional terms and conditions presented in the special instructions printed on the Purchase Order. The entire agreement between Hargray Communications Group, Inc. (“HARGRAY“), and the party identified on the first page of the Purchase Order (“Vendor“) consists of: (i) all information contained in the Purchase Order document; (ii) these Purchase Order Terms and Conditions (“Terms“), and (iii) any other special instructions printed on this document or conveyed by HARGRAY to Vendor (“Instructions“), and together with the Purchase Order and these Terms,( “Agreement“). Vendor shall be deemed to have accepted these Terms upon acknowledgment of the Purchase Order, commencement of work under the Purchase Order or shipment of any goods. No additional terms or conditions shall be binding upon HARGRAY, unless agreed to in writing by HARGRAY. HARGRAY’s failure to object to any provision contained in any communication from Vendor shall not be deemed an acceptance of such provision or a waiver of any provision of the Agreement. In the event of any conflict or inconsistency between the terms and conditions on the Purchase Order and these Terms, the Purchase Order shall prevail.
DELIVERY; DELAYS; QUANTITIES; TIME IS OF THE ESSENCE: All deliveries shall be made in strict accordance with the delivery schedule stated in the Purchase Order. All shipments shall be made to the delivery point stated in the Purchase Order. No variation in the quantities stated in the Purchase Order will be accepted. No substitution of goods may be made, unless agreed to in writing by HARGRAY. If Vendor is unable to comply with the delivery schedule, delivery point, or type or quantities of goods stated in the Purchase Order, HARGRAY may, in its sole and absolution discretion, without liability to Vendor, and without waiving any of its rights: (i) agree in writing to a revised delivery schedule, delivery point or type or quantity of goods; (ii) require Vendor, at Vendor’s expense, to deliver the goods to an alternate delivery point and/or at an alternate delivery time; and/or (iii) return any goods shipped to HARGRAY in variation of the delivery point, delivery schedule or type or quantity ordered to Vendor, at Vendor’s expense.
PACKAGING; TRANSPORTATION; TITLE AND RISK OF LOSS: Vendor shall be responsible for proper packaging of all goods to prevent damage during transportation, for securing the lowest transportation rates, and for complying with carrier tariffs. HARGRAY’s weight and/or count will be accepted as final and conclusive for all shipments not accompanied by a packing list. Transportation and insurance charges for all goods shall be paid by Vendor unless otherwise stated in this Purchase Order. All goods shall be delivered F.O.B. destination point. Title and risk of loss for all goods shall remain with Vendor until received by HARGRAY at the designated delivery point. Vendor shall be responsible for the settlement of all claims with the carrier and is responsible for full replacement of lost or damaged goods.
CHANGES: HARGRAY may at any time issue a written order to change the Purchase Order, Instructions, delivery schedule, delivery point, quantity of goods, methods of shipment or packaging, or any other matters within the general scope of the Agreement (“Change Orders“). Vendor agrees to strictly comply with such Change Orders. If any Change Order results in an increase in Vendor’s expense or in the time for performance, an equitable adjustment may be requested by Vendor. Any request for an equitable adjustment must be asserted within thirty (30) days after delivery of a Change Order. Failure of Vendor to request an equitable adjustment shall operate as a waiver thereof. No request for an equitable adjustment shall be binding upon HARGRAY, unless agreed to in writing by HARGRAY. Nothing in this Section shall relieve Vendor from proceeding without delay in the performance of the Purchase Order as changed.
PRICES; PAYMENT TERMS: Purchase Order prices are firm, and include all applicable taxes, freight, packaging, insurance, shipping, handling, and other charges. No charges of any kind shall be shall be binding upon HARGRAY, unless stated in the Purchase Order or agreed to in writing by HARGRAY. Notwithstanding the foregoing, HARGRAY shall receive the benefit of any price reductions in effect prior to shipment. Vendor represents and warrants that the Purchase Order prices do not and will not exceed Vendor’s lowest prevailing prices for the same, or substantially similar, goods and/or services. Invoices shall be dated no earlier than the date of shipment or delivery of service. HARGRAY shall have the right to pay in accordance with Vendor’s discount terms. The discount period begins upon receipt of invoice, designated delivery date, or the date any discrepancy is resolved, whichever is later. If no discount is offered, HARGRAY shall pay undisputed invoices within thirty (30) days after the end of the month in which the goods or services were received and accepted by HARGRAY. No interest charges, penalties or losses of discount on overdue accounts shall be due or payable, unless agreed to in writing by HARGRAY. HARGRAY may set off any amounts due to Vendor and/or withhold payments from Vendor for any dispute under the Agreement.
WARRANTIES FOR GOODS AND SERVICES: Vendor represents and warrants that: (i) all goods shall: (A) be merchantable and fit for the intended purposes; (B) strictly conform with the Agreement; (C) be free from all defects in design, materials and workmanship; and (D) be of the best quality; (ii) all services shall be of the best workmanship, and rendered by skilled personnel; (iii) Vendor has good and marketable title to the goods to be provided; (iv) neither the goods or services provided to HARGRAY, nor the use or distribution of those goods or services by HARGRAY, will infringe on any patent, trademark, copyright or other intellectual or proprietary rights; (v) the goods and services will comply with all applicable laws of the United States and the governing laws of any country of destination. These warranties shall: (i) not constitute a waiver of any other rights of HARGRAY, express or implied; (ii) run to HARGRAY and its affiliates, successors, assigns, customers, and end users of its products; (iii) survive inspection, acceptance, payment, and termination; and (iv) not be deemed exclusive. If any defect appears in the goods or any part thereof within 36 months after the date of manufacture, such defective goods may be returned to Vendor, at Vendor’s expense, and Vendor shall, in HARGRAY’s sole and absolute discretion: (i) repair or replace the defective goods, at Vendor’s expense; or (ii) provide HARGRAY with a credit for the goods at the Purchase Order price. These warranties shall also apply to all repaired and replaced goods for 12 months after the date of such repair or replacement.
INSPECTION AND REJECTION: Progress Inspections. When applicable, HARGRAY reserves the right to inspect any work in progress under the Purchase Order, and to subject any work in progress under the Purchase Order to its quality assurance procedures and/or tests. No work in progress inspection shall relieve Vendor from any responsibilities or liabilities or imply acceptance or approval by HARGRAY. HARGRAY may reject any part of the work in progress that does not conform with the Purchase Order.
Inspection Upon Delivery. All delivered goods shall be subject to HARGRAY’s inspection and rejection. Inspection of and/or payment for goods shall not constitute acceptance thereof. Following inspection, HARGRAY shall have the right, without waiving any other rights HARGRAY may have, to reject all or any part of the goods that HARGRAY believes are damaged, defective or non-conforming. Vendor shall bear the cost of inspection for rejected goods. HARGRAY may, at Vendor’s expense and risk, return rejected goods to Vendor or hold the rejected goods pending Vendor’s instructions. Vendor shall, in HARGRAY’s sole and absolute discretion: (i) repair or replace rejected goods, at Vendor’s expense; or (ii) provide HARGRAY with a credit for the rejected goods at the Purchase Order price.
INTELLECTUAL PROPERTY RIGHTS; CONFIDENTIALITY: Vendor shall be responsible for and ensure that it has those necessary licenses or approvals to use, sell, sublicense or assign any third party intellectual property rights contained in the goods purchased by HARGRAY. Except as required to perform its obligations under the Agreement, Vendor represents and warrants that Vendor shall hold in strict confidence and shall not use, disclose (or allow or assist others to use or disclose) or misappropriate any of HARGRAY’s intellectual or proprietary rights, information relating to HARGRAY’s business, products, services or operations, or any other information relating to HARGRAY which comes into the possession or knowledge of Vendor during the negotiation or performance of the Agreement, whether or not such information is oral or written, and whether or not labeled as confidential (collectively, “Confidential Information“). Vendor acknowledges and agrees that all Confidential Information, in whatever format and however stored, and all existing and future intellectual and proprietary rights therein, shall remain the property of HARGRAY. In addition, Vendor shall not publicly announce or disclose. Vendor acknowledges and agrees that Vendor’s breach of this Section would cause HARGRAY irreparable harm which could not be adequately compensated for by damages, and, accordingly, HARGRAY shall be entitled to seek injunctive relief as an additional remedy in the event of any breach of this Section.
TERMINATION: For Convenience. HARGRAY may terminate the Agreement, including the Purchase Order, for convenience, in whole or in part, without cost or liability, upon written notice to Vendor at any time prior to shipment. Vendor shall strictly comply with the directions contained in any termination notice. HARGRAY shall not be obligated to pay for any unfinished goods or services, or for any finished goods that were produced in anticipation of the Purchase Order. Upon Default. HARGRAY may terminate the Agreement, including the Purchase Order, immediately upon: (i) Vendor’s insolvency, assignment for the benefit of creditors, voluntary or involuntary filing of bankruptcy, liquidation, reorganization or other readjustment of its obligations; (ii) Vendor’s failure to comply with HARGRAY’s instructions, Change Orders or any provisions of the Agreement, including the Purchase Order and these Terms; (iii) failure of the goods or services to conform to Vendor or manufacturer’s warranties; (iv) Vendor’s breach of any representation, warranty, agreement or other obligation; and (v) receipt of proof that any representation or warranty by Vendor or manufacturer was false when made. In the event of any such termination, in addition to any other rights HARGRAY may have in law or equity, HARGRAY shall have the right to: (i) refuse to accept further delivery of goods; (ii) return to Vendor, at Vendor’s expense, any goods already delivered and to recover all payments made therefor and for expenses incident thereto; (iii) recover any advance payments made to Vendor for undelivered, unperformed or returned goods; and (iv) purchase the goods or services elsewhere, and charge Vendor for any additional costs resulting therefrom. Upon termination of the Agreement, for any reason, Vendor shall, in accordance with HARGRAY’s instructions, promptly return to HARGRAY or destroy all of HARGRAY’s Confidential Information, in Vendor’s possession, and provide HARGRAY with certification from an officer of Vendor that all such information has either been returned or destroyed. Termination by HARGRAY under this Section, for any reason, shall be without prejudice to any claims HARGRAY may have against Vendor.
INDEMNIFICATION: Vendor agrees to indemnify, defend, and hold HARGRAY, and its affiliates, successors, assigns, directors, officers, employees, agents, customers and end users of its products (each an indemnified party) harmless from and against all claims, demands, suits, actions, proceedings, losses, damages (including indirect, consequential, and punitive damages), liabilities, judgments, costs and expenses (including attorneys’ fees and other expenses of litigation), suffered, incurred, or asserted by or against such indemnified party, either directly or indirectly, resulting from: (i) Vendor’s breach of any representation, warranty, agreement or other obligation under the Agreement, including the Purchase Order and these Terms; (ii) personal injury (including death) or property damage resulting from or arising out of an act or omission of Vendor, or Vendor’s agents, employees, or contractors in fulfillment of the Agreement, including the Purchase Order and these Terms; (iii) defective, damaged, non-conforming or rejected goods; and (iv) loss or damage to, or misuse or abuse of, any Confidential Information. An indemnified party shall promptly notify Vendor in writing of any claim, demand or legal proceeding with respect to which it is asserting any indemnification right; provided, however, that failure to give timely notice as provided in this Section shall not relieve Vendor of its indemnity obligations, except to the extent of actual prejudice. Upon receipt of such notice, Vendor will: (i) assume the defense of any claim, demand or legal proceeding; and (ii) allow the indemnified party to participate in the defense, at Vendor’s expense.
MISCELLANEOUS: (i) Hazardous Goods. Vendor represents and warrants that all hazardous goods will be delivered in suitable protective packaging or containers, clearly labeled to indicate the hazards to health and safety, and delivered in accordance with all applicable laws; (ii) Subcontracting. Vendor shall not subcontract any work, in whole or in part, unless agreed to in writing by HARGRAY; (iii) Assignment. Vendor shall not assign the Agreement, including the Purchase Order, nor any moneys due or to become due to Vendor, without the prior written consent of HARGRAY. Any assignment or attempted assignment made by Vendor in contravention of the foregoing, by operation of law or otherwise, shall be void. HARGRAY may assign or transfer any and all of its rights and obligations without the prior written consent of Vendor; (iv) Governing Law; Arbitration. This Agreement shall be governed by and interpreted and construed in accordance with the laws of the State of South Carolina, without regard to the principles of conflicts of law. All disputes arising from or related to this Agreement shall be submitted to arbitration in Beaufort County, South Carolina (or at a location agreed to by HARGRAY) under the rules then prevailing of the American Arbitration Association and judgment may be entered on any award in a court of competent jurisdiction; (v) Severability. If any provision of these Terms is determined to be illegal, void or unenforceable under applicable law, by the final decision of any court of competent jurisdiction, the Agreement shall continue in full force and effect, except such provision shall be deemed to be of no effect; (vi) Waiver. No delay or omission by HARGRAY in exercising any right or remedy shall operate as a waiver thereof or of any other right or remedy, and no single or partial exercise thereof shall preclude any other or further exercise thereof or the exercise of any other right or remedy; (vii) Notices. Notices given hereunder shall be deemed properly given if delivered by hand, or if sent by certified mail return receipt requested, overnight mail, or by facsimile transmission to the parties’ addresses on the first page of this document. Notices sent by hand shall be deemed to be served at the time of delivery, or if sent by mail, upon three (3) business days after posting, and if sent by overnight mail, or facsimile transmission, at the time of confirmed delivery; (viii) Section Headings. Section headings are for ease of reference only, and they shall not affect the interpretation hereof; (ix) Cumulative Remedies. The rights, powers, elections and remedies hereunder are cumulative and in addition to those which HARGRAY may have at law or in equity; (x) Amendments. No amendment or modification of these Terms shall be effective, unless set forth in writing, stating with specificity the particular amendment or modification to be made and signed by HARGRAY and Vendor; and (xi) Survival. Vendor’s representations and warranties contained in these Terms are continuing in nature and shall survive the expiration or termination of the Agreement. The following Sections shall specifically survive termination or expiration, irrespective of the reasons therefor: (A) Warranties for Goods and Services; (B) Intellectual Property Rights; Confidentiality; (C) Governing Law; Arbitration; and (D) Indemnification.