Acceptance of Purchase Order by Seller
Upon acceptance of this Purchase Order by the Seller as set forth herein, this Purchase Order is a valid and binding contract between the Simons Foundation and the Seller, its successors and assigns. This Purchase Order is deemed accepted if Seller at any time delivers or performs all or any part of the goods, wares, merchandise or services included in the Purchase Order. Notwithstanding the provisions of any other document, writing, representation, agreement, proposal, promise or other understanding, oral or otherwise, between the Simons Foundation and Seller, including but not limited to any prior or subsequent price quotation, invoice, statement of work, terms and conditions, order, confirmation or other document furnished by Seller (Seller Terms), this Purchase Order constitutes the entire agreement between the Seller and the Simons Foundation regarding the subject matter of this Purchase Order and supersedes all Seller terms regarding the subject matter of this Purchase Order.
Acceptance by the Simons Foundation Delivery of the Goods and Services will be deemed to be complete only when delivered pursuant to a valid Purchase Order and when actually received and accepted by the Simons Foundation. All Goods and Services are subject to the Simons Foundation’s right of inspection following delivery and/or performance by Seller.
Time for Delivery Delivery or performance will be strictly in accordance with the Simons Foundation’s delivery or performance schedule. Time is of the essence with respect to Seller’s delivery and/or performance under this Purchase Order.
Risk of Loss Until delivered to the Simons Foundation, Seller will bear all risk of loss or damage. Shipment of goods or materials is F.O.B. Destination, unless Purchase Order states otherwise.
Pricing The Simons Foundation will pay Seller only for such Goods and Services and at such prices as agreed upon pursuant to this Purchase Order. Prices include all amounts payable by the Simons Foundation and no additional charges of any kind (including, without limitation, charges for transportation, delivery, boxing, packing or other extras) will be payable by the Simons Foundation unless specifically set forth in this Purchase Order or otherwise specifically agreed to in writing by an authorized procurement agent of the Simons Foundation.
Cancellation for Convenience The Simons Foundation, in its sole discretion and without cause, may terminate this Purchase Order, in whole or in part, at any time without incurring liability to Seller for lost profits, or any other costs or damages, other than the proportionate value of the purchase price for Goods delivered and Services performed. Payment due will be a percentage of the purchase price equal to the percentage of the work completed and/or units delivered.
Representations and Warranties In addition to, and without limiting any of Seller’s other representation and warranties, expressed or implied, Seller expressly represents and warrants to the Simons Foundation that: (a) all Goods and Services conform and will continue to conforms to professional industry standards and to any description, sample, specifications or other documentation to the Goods and Services made available to the Simons Foundation; (b) the Goods and Services are and will be fit for the purposes for which purchased, free from defects in materials and workmanship, and safe for their intended use; (c) Seller has all right, title and interest in and to the Goods and Services necessary to fulfill its obligations hereunder; (d) the Goods and Services are free from any liens, claims and encumbrances of any nature and do not and will not infringe the intellectual rights of any third party; (e) all Goods and Services will have been produced or manufactured in accordance with the regulations of the Fair Labor Standards Act of 1938, as amended, and all other applicable federal, state and municipal laws, rules and regulations.
Confidentiality Seller agrees that at all times during and subsequent to providing the subject of this purchase order, Seller, or their representatives, shall hold all confidential information in confidence and trust. They shall not use, publish or disclose confidential information to third parties, or others not bound by a confidentiality agreement. Disclosure of any confidential information is grounds for termination of this agreement.
Indemnification – Hold Harmless To the fullest extent permitted by law, Seller agrees to defend, indemnify and save harmless the Simons Foundation, and its agents, servants and employees, from and against any claim cost, expense, or liability (including, without limitation, attorneys’ fees, and including costs and attorneys’ fees incurred in enforcing this indemnity), attributable to bodily injury, sickness. disease, or death, or to damage to or destruction of property (including loss of use thereof), caused by, arising out of, resulting from, or occurring in connection with (a) any negligent or wrongful act, error or omission or breach of contract in connection with the operation of the Seller; or (b) performance of by Seller, its subcontractors and suppliers, or their agents, servants, or employees, whether or not caused in part by the active or passive negligence or other fault of a party indemnified hereunder.
Insurance Seller must provide the Simons Foundation with certificates of insurance with the reasonable type and in the appropriate amounts.
Conflicts Between Clauses Applicable to the Purchase Order In the event of any conflict with other Simons Foundation agreement terms, that conflict with any terms of the Purchase Order, the most stringent term will apply.
Governing Law All matters relating to the validity, performance, or interpretation of this Purchase Order shall be governed and construed in accordance with the laws of the State of New York.
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