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Purchase Terms

Purchase Order Terms & Conditions

TERMS AND CONDITIONS OF PURCHASE (N.F. SMITH AND ASSOCIATES, L.P.)

By accepting a Purchase Order from NF Smith and Associates, its affiliates or assigns ("Smith"), Seller agrees to these Terms and Conditions:

1. GENERAL

All sales of Products shall be made only upon these Terms and Conditions of Purchase and NOT any sales terms and conditions or other document of Seller. Smith's failure to object to any terms which conflict with these Terms and Conditions shall not be deemed a waiver of objection thereto. Any change to these Terms and Conditions must be specifically agreed to in writing by a duly authorized representative of Smith. Smith reserves the right to correct any typographical error. Seller shall not assign its rights or duties hereunder without the express prior written consent of Smith. S reserves the right to assign this order upon notice to Seller.

2. PRICES

Prices shall include sales and use taxes, duties, freight, or packaging.

3. PACKAGING AND PACKING

Seller shall properly package and pack the Products. Each container and/or package shall be clearly labeled to indicate the applicable Purchase Order number(s), Smith part numbers and quantities of Products. A packaging slip for each Purchase Order itemized shall accompany each delivery.

4. DELIVERY: TIME AND DATE OF DELIVERY ARE OF THE ESSENCE

Unless otherwise specifically set forth in the Purchase Order, delivery shall be DDP Destination. Smith may refuse delivery of Products made in partial shipments or made more than one week in advance of delivery schedule specified in the Purchase Order and may return such Products at Seller's expense. Seller shall notify Smith immediately when Seller has knowledge of any potential delay in delivery.

5. PAYMENTS

Seller shall submit invoices only upon delivery of Products. Smith shall issue payment within 30 days of receipt of a correct invoice provided Seller has delivered conforming Products. Smith reserves the right to set off any amounts owing from Seller to Smith or its affiliated companies against any undisputed amounts owed by Smith to Seller.

6. INSPECTION AND ACCEPTANCE

Seller shall inspect all Products prior to shipment to Smith. Products which fail to pass Smith's incoming acceptance test may be rejected by Smith and returned to Seller at Smith's option.

7. WAIVER

Smith's failure or delay to insist upon strict performance of any of the provisions; of this Purchase Order or to exercise any rights or remedies under this Purchase Order shall not be construed as a waiver or relinquishment to any extent of its right to assert or rely on any such provisions, rights or remedies in that or any other instance; rather the same shall be and remain in full force and effect.

8. CANCELLATION; TERMINATION

Smith may cancel this Purchase Order in whole or in part at any time by written notice if Seller: (1) fails to comply with any provision(s) of this Purchase Order; (2) becomes insolvent or makes an assignment for the benefit of creditors, or a receiver or similar officer is appointed to take charge of all or part of Seller's assets and such condition(s) is not cured within 60 days; (3) merges with or is acquired by a third party; or (4) attempts to assign any its rights or obligations under this Purchase Order. Smith shall have no liability to Seller beyond payment for Products delivered to and accepted by Smith prior to Seller's receipt of notice of cancellation.

9. CONFIDENTIAL INFORMATION

Seller shall not disclose to any person, nor use for purposes other than performance of the Purchase Order, any information pertaining to the existence or terms of the Purchase Order, including but not limited to specifications, descriptions, and demand.

10. COMPLIANCE WITH LAWS

A.) All Products supplied and work performed under this Purchase Order shall comply with all applicable United States and foreign laws and regulations. Upon request, Seller agrees to certify compliance with any applicable laws or regulations. Seller's failure to comply with any of the requirements of this Section may result in material breach of the Purchase Order.

11. INDEMNITY

Seller shall defend, indemnify and hold harmless Smith from any and all claims, liabilities, damages, costs and expenses (including, but not limited to, attorneys' fees) arising or alleged to arise out of or in connection with: (i) any act, error, omission, fault, strict liability, product liability or negligence of Seller or any of its suppliers; or (ii) any personal injury, death or damage to property or environment in connection with the sale of Products to Smith.

12. WARRANTY

Seller warrants that each Product: (1) is free of all liens and title encumbrances, (2) is free from defects in design, material and workmanship, and (3) conforms to applicable specifications, drawings, samples or other descriptions referenced on the face of this Purchase Order. Seller agrees to transfer any Product manufacturer's warranty to Smith. Seller's obligations under this warranty are, at Smith's option, replacement or refund of Products within 30 days of notice of such condition. All expenses associated with the return to Seller of such Products and the delivery to Smith of repaired or replacement Products shall be borne by Seller. The above warranties shall survive any delivery, acceptance, payment, termination, or expiration of this Purchase Order and shall run to Smith, its successors, assigns, customers, and users of its products. If at any time during the warranty period Seller receives from Smith written notice of any failure to comply with the warranty set forth above, Seller shall promptly correct such noncompliance and remedy any damage to other parts of the work or any other property resulting from such noncompliance.

13. LAW, MEDIATION, WAIVER

This agreement is entered into in Harris County, Texas and is governed by the laws of the state of Texas without giving effect to the principles of conflict of laws. All disputes which may arise regarding an agreement or these Terms and Conditions shall be determined by the state district court of Harris County, Texas, without prejudice to Smith's right to bring such dispute before any other competent court. Seller hereby expressly submits and consents to jurisdiction of the state district courts of Harris County, Texas for the purpose of legal resolution. Before any court action or any proceeding is filed by either party involved in this transaction, the parties will endeavor to resolve the matter in mediation which will last a minimum of 4 hours. The parties shall equally bear the cost of the mediator. In the event that any of these Terms and Conditions is determined to be unenforceable, the other Terms and Conditions shall remain in full force and effect. Failure of Smith to enforce at any time any of the Terms and Conditions shall not be deemed a waiver of any of Smith's rights and shall not affect the validity of the transaction or these Terms and Conditions.

TERMS AND CONDITIONS OF PURCHASE (ONTILITY)

By accepting a Purchase Order from Ontility LLC, its affiliates or assigns (“Ontility”), Seller agrees to these Terms and Conditions:

1. GENERAL

All sales of Products shall be made only upon these Terms and Conditions of Purchase and NOT any sales terms and conditions or other document of Seller. Ontility’s failure to object to any terms which conflict with these Terms and Conditions shall not be deemed a waiver of objection thereto. Any change to these Terms and Conditions must be specifically agreed to in writing by a duly authorized representative of Ontility. Ontility reserves the right to correct any typographical error. Seller shall not assign its rights or duties hereunder without the express prior written consent of Ontility. Ontility reserves the right to assign this order upon notice to Seller.

2. PRICES

Prices shall include sales and use taxes, duties, freight, or packaging.

3. PACKAGING AND PACKING

Seller shall properly package and pack the Products. Each container and/or package shall be clearly labeled to indicate the applicable Purchase Order number(s), Ontility part numbers and quantities of Products. A packaging slip for each Purchase Order itemized shall accompany each delivery.

4. DELIVERY: TIME AND DATE OF DELIVERY ARE OF THE ESSENCE

Unless otherwise specifically set forth in the Purchase Order, delivery shall be DDP Destination. Ontility may refuse delivery of Products made in partial shipments or made more than one week in advance of delivery schedule specified in the Purchase Order and may return such Products at Seller's expense. Seller shall notify Ontility immediately when Seller has knowledge of any potential delay in delivery.

5. PAYMENTS

Seller shall submit invoices only upon delivery of Products. Ontility shall issue payment within 30 days of receipt of a correct invoice provided Seller has delivered conforming Products. Ontility reserves the right to set off any amounts owing from Seller to Ontility or its affiliated companies against any undisputed amounts owed by Ontility to Seller.

6. INSPECTION AND ACCEPTANCE

Seller shall inspect all Products prior to shipment to Ontility. Products which fail to pass Ontility's incoming acceptance test may be rejected by Ontility and returned to Seller at Ontility's option.

7. WAIVER

Ontility’s failure or delay to insist upon strict performance of any of the provisions; of this Purchase Order or to exercise any rights or remedies under this Purchase Order shall not be construed as a waiver or relinquishment to any extent of its right to assert or rely on any such provisions, rights or remedies in that or any other instance; rather the same shall be and remain in full force and effect.

8. CANCELLATION TERMINATION

Ontility may cancel this Purchase Order in whole or in part at any time by written notice if Seller: (1) fails to comply with any provision(s) of this Purchase Order; (2) becomes insolvent or makes an assignment for the benefit of creditors, or a receiver or similar officer is appointed to take charge of all or part of Seller's assets and such condition(s) is not cured within 60 days; (3) merges with or is acquired by a third party; or (4) attempts to assign any its rights or obligations under this Purchase Order. Ontility shall have no liability to Seller beyond payment for Products delivered to and accepted by Ontility prior to Seller's receipt of notice of cancellation.

9. CONFIDENTIAL INFORMATION

Seller shall not disclose to any person, nor use for purposes other than performance of the Purchase Order, any information pertaining to the existence or terms of the Purchase Order, including but not limited to specifications, descriptions, and demand.

10. COMPLIANCE WITH LAWS

A.) All Products supplied and work performed under this Purchase Order shall comply with all applicable United States and foreign laws and regulations. Upon request, Seller agrees to certify compliance with any applicable laws or regulations. Seller's failure to comply with any of the requirements of this Section may result in material breach of the Purchase Order.

11. INDEMNITY

Seller shall defend, indemnify and hold harmless Ontility from any and all claims, liabilities, damages, costs and expenses (including, but not limited to, attorneys' fees) arising or alleged to arise out of or in connection with: (i) any act, error, omission, fault, strict liability, product liability or negligence of Seller or any of its suppliers; or (ii) any personal injury, death or damage to property or environment in connection with the sale of Products to Ontility.

12. WARRANTY

Seller warrants that each Product: (1) is free of all liens and title encumbrances, (2) is free from defects in design, material and workmanship, and (3) conforms to applicable specifications, drawings, samples or other descriptions referenced on the face of this Purchase Order. Seller agrees to transfer any Product manufacturer’s warranty to Ontility. Seller's obligations under this warranty are, at Ontility's option, replacement or refund of Products within 30 days of notice of such condition. All expenses associated with the return to Seller of such Products and the delivery to Ontility of repaired or replacement Products shall be borne by Seller. The above warranties shall survive any delivery, acceptance, payment, termination, or expiration of this Purchase Order and shall run to Ontility, its successors, assigns, customers, and users of its products. If at any time during the warranty period Seller receives from Ontility written notice of any failure to comply with the warranty set forth above, Seller shall promptly correct such noncompliance and remedy any damage to other parts of the work or any other property resulting from such noncompliance.

13. LAW, MEDIATION, WAIVER

This agreement is entered into in Harris County, Texas and is governed by the laws of the state of Texas without giving effect to the principles of conflict of laws. All disputes which may arise regarding an agreement or these Terms and Conditions shall be determined by the state district court of Harris County, Texas, without prejudice to Ontility’s right to bring such dispute before any other competent court. Seller hereby expressly submits and consents to jurisdiction of the state district courts of Harris County, Texas for the purpose of legal resolution. Before any court action or any proceeding is filed by either party involved in this transaction, the parties will endeavor to resolve the matter in mediation which will last a minimum of 4 hours. The parties shall equally bear the cost of the mediator. In the event that any of these Terms and Conditions is determined to be unenforceable, the other Terms and Conditions shall remain in full force and effect. Failure of Ontility to enforce at any time any of the Terms and Conditions shall not be deemed a waiver of any of Ontility’s rights and shall not affect the validity of the transaction or these Terms and Conditions.