SUNCOURT PURCHASE ORDER ADDITIONAL TERMS AND CONDITIONS
1. SELLER'S ACCEPTANCE. Seller's commencement of, or promise of shipment of the Merchandise, or performance of Service, shall constitute Seller's agreement that it will deliver the Merchandise or Service in accordance with the terms and conditions of this Order Contract. Seller agrees to follow the shipping and invoicing instructions issued by Buyer, which instructions are incorporated by reference into this Order Contract.
2. SELLER'S REPRESENTATIONS AND WARRANTIES. Seller represents and warrants to Buyer, in addition to all warranties implied by law, that each item of merchandise or service described on the Purchase Order, together with all related packaging and labeling and other material furnished by Seller ("Merchandise" or "Service"); shall (a) be free from defects in design, workmanship or materials including, without limitation, such defects as could create a hazard to life or property; (b) conform in all respects with all applicable Federal, state and local laws, orders and regulations, including but not limited to those regarding occupational safety and health; (c) not infringe or encroach upon Buyer's or any third party's personal, contractual or proprietary rights, including patents, trademarks, copyrights, rights of privacy or trade secrets; (d) conform to all Buyer's specifications and to all articles shown to buyer as Merchandise samples and that all rights thereto are transferred to Suncourt without limitation as soon as the goods or services are shipped, delivered or otherwise made available to Suncourt whether Suncourt has made payment therefore or not.
3. SELLER'S INDEMNIFICATION OF BUYER. Seller agrees to reimburse, indemnify, hold harmless and to defend at its expense (or to pay any attorney's fees incurred by Buyer) Suncourt Inc. against all damage, loss, liability or penalty, including (but not limited to) claims of infringement of patents, copyrights, trademarks, unfair competition, bodily injury, property or other damage, arising out of any use, possession, consumption or sale or use of said Merchandise or Service and from any failure by Seller to properly perform this Order Contract. Seller shall obtain adequate insurance to cover its liability under this Order Contract and shall provide copies of the applicable certificate(s) of insurance upon request of Buyer.
4. DEFECTIVE OR NON-CONFORMING MERCHANDISE. If any Merchandise or Service is defective, unsuitable, does not conform to all terms of this Order Contract and all warranties implied by law, Buyer may at its option return it to Seller for full credit or refund of the purchase price or repair it at Seller's expense, and may charge Seller such price or expense and the cost of any incurred inbound and outbound freight and a handling, storage and inspection charge.
5. BUYER'S RIGHT TO CANCEL. Buyer may terminate and rescind all or part of the Order Contract in the event Seller breaches or fails to perform any of its obligations in any material respect, or in the event Seller becomes insolvent or proceedings are instituted by or against Seller under any provision of any federal or state bankruptcy or insolvency laws or Seller ceases its operation. Time is of the essence to this Order Contract and Seller's failure to meet any delivery date shall constitute a material breach of the Order Contract.
6. SPECIAL FEATURES. All merchandise, designs, patents, copyrights and trademarks, which are supplied by Buyer to Seller, or which are distinctive shall be the property of Buyer and shall be used by Seller only for Buyer. Buyer may use the Special Features on or with respect to goods manufactured or service performed by others and obtain legal protection for the Special Features including, without limitation, patents, patent designs, copyrights and trademarks.
7. DEDUCTION AND SET OFF. Any sum payable to Seller shall be subject to all claims and defenses of Buyer, whether arising from this or any other transaction or occurrence, and Buyer may set off and deduct against any such claims and defenses of Buyer, whether arising from this or any other transaction or occurrence, and Buyer may set off and deduct against any such sums all present and future indebtedness of Seller to Buyer. Buyer shall provide a copy of the deduction voucher(s) for debits taken by Buyer against Seller's account as a result of any returns and adjustments. Seller shall be deemed to have accepted each such deduction unless Seller, within 10 days following receipt of the deduction voucher, notifies buyer in writing as to why a deduction should not be made and provides documentation of the reason(s) given. Such written notice shall be directed to Accounts Payable, Suncourt Inc., 500 W. Second Avenue, P.O. Box 40, Durant, Iowa 52747-0040.
8. IOWA CONTRACT AND JURISDICTION. This Order Contract shall be construed and enforced in accordance with the laws of the state of Iowa and it is mutually agreed that either Seller or Buyer shall exercise any right or remedy hereunder in the State of Iowa Courts, Cedar County, Iowa or the United States District Court in Davenport, Iowa.9. MISCELLANEOUS. (a) All rights granted to Buyer hereunder shall be in addition to and not in lieu of Buyer's rights arising by operation of law; (b) any provisions of the Purchase Order shall supercede any contrary or inconsistent provisions in these Purchase Order Additional Terms and Conditions; (c) no modification of terms of this Order Contract shall be valid unless in writing and signed by Buyer; (d) should any of the provisions of this Order Contract be declared by a court of competent jurisdiction to be invalid, such decision shall not affect the validity of any remaining provisions, (e) all of the terms herein shall apply to additional quantities of Merchandise ordered by Buyer except to the extent covered by a new written agreement; (f) the cost price set forth in a Purchase Order includes the cost of manufacturing, packaging, labeling and shipping unless otherwise specified.