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1. DEFINITIONS: As used in
these General Terms and Conditions, "Order" shall mean this
Purchase Order and all of its attachments and exhibits;
"Materials" shall mean any materials, machinery, equipment,
article, item, maintenance, construction or other services or work
provided for in this Order; "GLI" shall mean Gray Labs, Inc., a
Florida corporation with its principal offices at 5335B Oakbrook Parkway,
Norcross, GA 30093; "Seller" shall mean the person, proprietor,
partnership, limited liability company, firm, corporation or other entity
to which this Order is issued.
2. CONTRACT: When accepted by
Seller, subject to Section 12 below, this Order shall constitute the
entire contract between Seller and GLI with reference to the Materials.
None of the general terms and conditions contained in this Order may be
added to, modified, superseded or otherwise altered except by written
instrument signed by an authorized representative of the party against
which such changes are sought to be enforced, and each shipment received
by GLI from Seller shall be deemed to be made only upon the general terms
and conditions contained in this Order, notwithstanding any terms and
conditions that may be contained in any acknowledgment, invoice or other
form of Seller and notwithstanding GLI's act of accepting or paying for
any shipment or similar act of GLI, except as otherwise indicated in this
Order. By written instructions issued to Seller by an authorized
representative of GLI's Purchasing Department, GLI may from time to time
make changes, issue additional instructions, require additional Materials,
or cancel Materials ordered hereunder. If any such change causes an
increase or decrease in the cost of or the time required for the
performance of this Order, an equitable adjustment shall be made in the
price and/or delivery schedule, as applicable, and this Order shall be
modified accordingly by written instrument signed by authorized
representatives of Seller and GLI.
3. PRICE, TAXES AND TERMS:
(a) The Seller certifies that the prices specified in this Order are as
low or lower than prices quoted by the Seller to any other customer
purchasing the same type and/or quantity of specified Materials, as GLI.
(b) In the event that the Seller's published prices for the Materials
covered by this contract are reduced below the prices specified in this
Order, or if the Seller provides or agrees to provide the type and/or
quantity of Materials covered by this contract to any other customer for a
price lower than that specified in this Order, GLI shall receive the
benefits of such reduction and shall pay the price or prices specified
decreased by the amount of such reduction.
(c) Unless otherwise specified herein, the Seller must deliver the full
quantity of goods, or complete to the satisfaction of an authorized
representative of GLI's Purchasing Department, the full quantity of
services, specified herein before any payment will become due from GLI.
(d) Shipment of Materials shall be accompanied by a shipping notice or a
packing slip describing the contents of each package or container showing
weight, quantity and order number.
(e) Shipment charges invoiced to GLI by Seller or any third party shall be
supported and accompanied by the original receipted bill of Seller's or
such third party's shipper. All prices quoted in the Purchase Order will
include the cost of insurance and shipping unless otherwise agreed to.
(f) Seller shall show federal excise, state and or local taxes, if any,
separately on invoice.
(g) Seller shall not substitute Materials or ship more than the quantity
of materials ordered without express written authority from an authorized
representative of GLI's Purchasing Department. Otherwise, GLI reserves the
right to reject such Materials.
(h) The method of shipment and routing shall conform to GLI's
instructions; otherwise, any extra costs shall be borne by Seller. If not
otherwise specified by GLI, Seller shall ship Materials at the most
economical prevailing means and rate consistent with safe and timely
delivery of such Materials.
4. DELAY OR NONDELIVERY: If,
upon Seller's receipt of this Order or at any time thereafter, Seller
finds that it cannot ship the Materials within the time specified in this
Order, Seller shall so notify GLI immediately by the fastest means
possible and shall inform GLI of Seller's earliest possible shipping date
(the "Revised Shipping Date"). GLI shall have the option upon
ten days' notice to Seller either to cancel all or any part of the Order
or to accept the Order and Seller's Revised Shipping Date. Seller's
failure to ship the Materials by the Revised Shipping Date shall entitle
GLI at GLI's sole option to cancel all or any part of the Order upon
notice to Seller without prejudice to any other rights GLI may have in the
Order or as a result of Seller's failure, or which may survive the
termination of the Order.
5. QUALITY AND INSPECTION: The
Materials supplied hereunder shall be of good quality, free from any
faults and defects, in conformance with this Order, and shall at all times
be subject to GLI's inspection before acceptance by GLI. Neither, however,
GLI's inspection nor failure to inspect shall relieve Seller of any
obligations, representations or warranties hereunder. If the Materials
fail to conform to GLI's specifications or are otherwise defective, Seller
shall promptly replace same at Seller's sole expense. Any services
supplied hereunder shall be of good quality, free from any faults or
defects and in conformance with this Order. All services not conforming to
these requirements, including substitutions not properly approved and
authorized, shall be considered defective, and Seller shall promptly
correct such defective services at Seller's sole expense. No payment for
or acceptance of Materials, including services, by GLI hereunder shall
constitute a waiver of any of the foregoing nor shall anything herein
contained be construed to exclude or limit any of Seller's warranties
implied by law.
6. COMPLIANCE WITH AUTHORITY:
Seller agrees to comply with all laws, orders, rules, ordinances, codes
and regulations of any governmental body applicable to it, and shall
furnish GLI such evidence of compliance as GLI may require at any time and
from time to time. If Seller fails to comply with the above laws, orders,
rules, ordinances, codes and regulations and as a result GLI is held
liable for such Seller's failure by the applicable regulatory body or a
court of law, then at GLI's sole discretion, Seller shall either pay
fines, damages and/or other costs incident thereto or reimburse GLI for
the payment of same.
7. PATENT AND OTHER INFRINGEMENT:
Seller shall indemnify GLI and hold it harmless from and against any and
all loss, liability or expense by reason of any claim or suit for alleged
infringement of any copyright, trademark, patent, trade secret or other
intellectual property resulting from or arising in connection with the
manufacture, sale, normal use or other normal disposition of any Material
furnished hereunder, or the performance of any work hereunder, and shall
defend any such claim or suit and pay all costs and expenses incidental
thereto; but at its option GLI shall have the right to participate in the
defense of any such claim or suit without relieving Seller of any
obligations hereunder.
8. INDEMNITY: Seller shall
indemnify and hold harmless GLI and its parent and subsidiary companies
and their respective employees, officers, directors, authorized
representatives and stockholders from all claims, costs, liabilities,
judgments, expenses, damages or losses resulting from any injury to
property or persons due to any act, omission or negligence of Seller, its
agents, employees or contractors or arising out of Seller's performance of
this Order, or arising out of any breach or alleged breach of this Order
or any representation or warranty made by Seller, its agents, employees or
contractors.
9. ASSIGNMENT: Neither this
Order nor any claim against GLI arising directly or indirectly out of, or
in connection with, this Order, shall be assignable by Seller or by
operation of law, nor shall Seller subcontract any obligations hereunder
without the prior written consent of GLI.
10. DEFAULT: If Seller or its
agents, employees or contractors breaches any provision hereof, GLI shall
have the right (without limiting any other rights or remedies which it may
have hereunder or by operation of law) to terminate this Order upon
written notice to Seller. GLI's right to terminate this Order pursuant to
this section shall not affect or be a waiver of any other rights and
remedies GLI may have in this Order or which may survive the termination
of this Order. GLI's right to require performance of any obligation
hereunder shall not be affected by any previous waiver, forbearance or
course of dealing by GLI. Time is of the essence for this Order.
11. LIENS: Before final
settlement of Seller's obligations and payment by GLI, Seller shall
satisfy GLI of the payment and release of all debts, taxes, liens, claims,
charges and obligations of Seller arising by operation of law, or
otherwise, out of Seller's performance of this Order. GLI may withhold
without interest funds due Seller hereunder or otherwise sufficient to
assure itself of the discharge of all such obligations, or to satisfy any
provisions of law relating to any claims it may have against Seller
arising from this Order.
12. CONTRACTS: This Order and
its general terms and conditions shall be subject to contracts between
Seller and GLI with respect to Materials covered in such Order and in such
contracts only as specified on the front side of this Order and the terms
and conditions of such contracts shall not supercede this Order and its
General Terms and Conditions regarding such Materials unless so specified
on the front of this Order. If there is a conflict between any term or
condition of such contract and any term or condition of this Order, the
affecting term or condition of this Order shall prevail unless it is
explicitly specified to the contrary on the front side of this Order.
13. WARRANTIES:
(a) Seller shall observe, comply with and afford GLI all applicable
Uniform Commercial Code warranties contained in the Massachusetts General
Laws, and Seller hereby acknowledges that GLI does not waive any of such
warranties. This Order shall be interpreted in accordance with the laws of
the State of Georgia and in accordance with its fair meaning and not
strictly against either party.
(b) If any goods specified in this Order include equipment and/or software
which is date dependent in its function in any fashion
("Date-Dependent Material"), Seller represents and warrants that
such Date-Dependent Material will process dates correctly prior to, during
and after the calendar year 2005. This shall include but not be limited to
century recognition, calculations that accommodate same-century and
multi-century formulas, and date and interface values that reflect the
century. If Seller becomes aware that the equipment or software may not or
does not process correctly data containing any date subsequent to the year
1999, Seller shall immediately so notify GLI and promptly correct or
replace the equipment or software to eliminate such problem. If Seller
fails to correct or replace any Date-Dependent Material that does not meet
the foregoing warranty within a reasonable period, GLI shall have the
option of returning such Material (at Seller's expense) and receiving a
full refund of all amounts paid for the equipment and software by GLI.
14. NOTICE: All notices given
hereunder shall, unless otherwise specifically provided, be given in
writing, by personal delivery, mail, electronic mail, or facsimile
transmission at the respective addresses of Seller and GLI set forth in
this Order, unless either party at any time or times designates another
address for itself by notifying the other party thereof by certified mail,
in which case all notices to such party shall thereafter by given at its
most recently so designated address. Notice given by mail shall be deemed
given on the date of mailing thereof with postage prepaid. Notice given by
electronic mail or facsimile transmission shall be deemed given upon
receipt thereof by the recipient.
15. CONSENT TO JURISDICTION:
Any action to enforce, arising out of, or relating in any way to, any of
the provisions of this contract maybe brought and prosecuted in such court
or courts located in the State of Georgia as is provided by law; and the
parties consent to the jurisdiction of said courts located in the State of
Georgia and to service of process by registered mail, return receipt
requested, or by other manner provided by law.
16. SEVERABILITY: In case one
or more of the provisions contained in this contract should be invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby.
17. HEADINGS: Headings in the
contract are for purposes of reference only and shall not limit or affect
the meaning hereof.
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