PURCHASING TERMS AND CONDITIONS
The Purchase Order or Contract together with these Terms and Conditions and all documents referenced and specifically incorporated into the Purchase Order or Contract are the entire agreement (referred to collectively as “Agreement”) between Picco Coatings Co., Inc. (“PICCO”) and Sellers (collectively, the “Parties”).
1. SCOPE OF SALE AND PURCHASE
Seller agrees to sell to PICCO the Materials identified in the Agreement at the stated price, quantity, ship to location and other specifications. PICCO is not obligated to purchase any minimum quantity or dollar amount of Materials from Seller. PICCO shall pay approved invoices in accordance with the payment terms specified in the Agreement or shall notify Seller of its reasons for disapproval of such invoices. All payments are subject to adjustment for shortage or rejection.
2. DELIVERY OF MATERIALS
Time is of the essence for this Agreement. Seller must ensure all materials are properly packaged and secured during shipment. If delivery of the Materials is not completed within the time period stated in the Agreement, PICCO reserves the right, without liability and in addition to other rights and remedies, to cancel this Agreement by notice effective upon receipt by Seller as to stated quantities of Materials not yet delivered and to purchase substitute Materials from third parties and Seller shall be liable for increased cost.
3. INSPECTION, REJECTION, ACCEPTANCE AND REVOCATION OF ACCEPTANCE OF GOODS
Seller shall provide and maintain a quality assurance system which shall ensure that all Materials delivered to PICCO conform to the Agreement and Seller shall maintain adequate records of all inspections and tests. Notwithstanding payment, passage of title of Materials to PICCO or prior inspection or testing by Seller, all Materials are subject to final inspection and acceptance or rejection by PICCO
4. WARRANTY
A. Seller warrants that (1) all materials and equipment furnished by it and its subcontractors or suppliers shall be (a) free from defects in design, material and workmanship, (b) fit for the purpose intended, (c) new and conform to the specifications, drawings, samples and other descriptions as set forth in the Agreement and, (d) where not specified, of the highest quality and best grade of its respective kind for its intended use, and (2) it has good and marketable title to all materials at the time the materials are loaded for delivery to PICCO and that title to all materials and equipment furnished by it shall pass to PICCO free and clear of all liens, claims, security interests or encumbrances.
B. Seller shall promptly provide PICCO’s Buyer and PICCO’s Contract Administrator (a) notice of any defects (latent or otherwise) in the Materials, (b) any warnings concerning defects (latent or otherwise) in the Materials, (c) any recall notices or safety bulletins related to the Materials, and (d) details including corrective action requirements. The provisions of this Section shall survive termination, cancellation or expiration of the Purchase Order or Contract.
5. CHANGES
PICCO may make changes to the Agreement, including without limitation, changes to any one or more of the following: (a) the specifications of the Materials, (b) the addition or deletion of Materials, (c) the method of shipment of the Materials and (d) the place or time of inspection, delivery or acceptance of the Materials. If such change causes an increase or decrease in the cost of, or time required for performance of, the Agreement, an equitable adjustment may be made by Change Order issued by PICCO’s Buyer. Nothing in this Section shall excuse Seller from proceeding with performance of the Agreement as changed. No price increases, costs, charges or other amounts, extensions of time for delivery or other changes shall be binding on PICCO unless evidenced by a Change Order issued by PICCO’s Buyer. Payments made under this Section shall not exceed the aggregate price specified in the Agreement. No claim by Seller for adjustment hereunder shall be considered unless made in writing within ten (10) days from the date of notice of any such change is received by Seller.
6. FORCE MAJEURE
Within seven (7) days of the commencement of any excusable delay, Seller must notify PICCO’s Buyer in writing of the nature, cause, date of commencement and expected impact of the event. Seller must exercise due diligence in proceeding to meet its performance obligations hereunder, notwithstanding the delay. Upon Seller satisfying these conditions, PICCO may extend the schedule for the period of time equal to the time actually lost by reason of the delay.
7. TERMINATION
A. PICCO may, at its option, by written Change Order issued by PICCO’s Buyer, terminate the Agreement or any part thereof upon ten (10) days’ notice without cause. Upon such termination, Seller agrees to waive all claims for damages, including claims for loss of profits and to accept as its sole remedy for termination the cost of all Materials delivered prior to the date of termination, including reasonable overhead and profit thereon and reasonable cost incurred by Seller in terminating the Agreement. PICCO shall have no liability whatsoever for goods which are Seller’s standard stock. Termination shall not relieve Seller of any of its obligations for Materials delivered hereunder.
B. PICCO may terminate this Agreement for cause if (1) Seller refuses, neglects or fails in any respect to prosecute the Agreement hereunder or any portion thereof with promptness, diligence or in accordance with any of the provisions set forth herein, (2) Seller refuses, neglects, or fails to perform any other obligations under this Agreement or provide adequate assurance of performance, (3) Seller makes an assignment for the benefit of creditors or bankruptcy or insolvency proceedings are instituted by or against Seller, or (4) at any time in PICCO’s sole judgment, Seller’s financial or other condition or progress on the Agreement shall be such as to endanger timely performance.
8. DOCUMENTATION
A. PICCO’s Purchase Order number must appear on all invoices, packages, packing lists and correspondence.
B. Each Purchase Order must have a separate packing list and each handling unit must clearly identify its contents and exact quantities.
C. Each line of the Purchase Order must be acknowledged with delivery date information upon Seller’s receipt to: purchasing@piccocoatings.com
D. Invoices shall be submitted electronically to; ap@piccocoatings.com
9. GOVERNING LAW, VENUE, AND JURISDICTION
The Agreement, and the rights, obligations and liabilities of the parties hereto shall be construed in accordance with the law of the State of Texas, without regard to its conflict of law principals. The parties irrevocably agree that any action with respect to this Agreement shall be brought exclusively in a State or Federal court of competent subject matter jurisdiction located in Harris County, Texas and the parties hereby submit themselves to the exclusive jurisdiction and venue of such court for the purpose of such action.
10. WAIVER
No terms or conditions herein may be waived except by express written agreement executed and delivered by PICCO. PICCO’s failure to assert or enforce any rights or remedies hereunder shall not be deemed a waiver of such rights and remedies, and all such rights and remedies shall be cumulative and remain valid and enforceable in PICCO’s sole discretion.
11. SURVIVAL
All of the terms of this Agreement which by their nature extend beyond (a) the termination or cancellation of this Agreement or (b) the completion of the delivery of Materials shall survive