J&J Truck Equipment Purchase Order Terms and Conditions

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Contract Formation.
1. Offer. J&J Truck Equipment, a Division of Somerset Welding & Steel, Inc. (the “Buyer”), by submitting a purchase order, makes an offer to purchase goods and/or services from Seller as specified in the purchase order and subject to these terms and conditions (the “Terms and Conditions”). Placing a purchase order does not constitute acceptance by Buyer of any offer, quotation, or proposal from Seller. Buyer shall not be bound by submission of a purchase order until Seller executes and returns to Buyer an acknowledgment copy of the purchase order which shall constitute acceptance of the offer set forth in the purchase order, including these Terms and Conditions.
2. Acceptance. Seller shall be bound by the purchase order when: (a) Seller executes and returns an acknowledgment copy of the purchase order; (b) Seller otherwise communicates to Buyer in writing its acceptance of the purchase order; or (c) Seller delivers to Buyer any of the goods, or renders to Buyer any of the services, identified in the purchase order. Any form of acceptance by Seller in response to a purchase order from Buyer shall result in Seller being bound by the purchase order which shall be subject to these Terms and Conditions. Unless Seller shall have set forth each specific objection to these Terms and Conditions in a separate writing signed and dated by Seller and delivered to Buyer contemporaneously with Seller’s acceptance of Buyer’s purchase order or such other manifestation of acceptance, Seller shall be deemed to have accepted all of these Terms and Conditions. A purchase order expressly limits acceptance to the Terms and Conditions stated herein, and any additional or different terms proposed by the Seller are rejected unless expressly assented to in writing by Buyer.
3. Different Terms. Unless expressly accepted in writing by Buyer, additional or differing terms or conditions proposed by Seller or provided by Seller are rejected by Buyer and have no effect. Buyer expressly objects to any terms contained in any of Seller’s documents which are different from, or additional to, the terms of Buyer’s purchase order which shall be subject to these Terms and Conditions. Buyer’s execution of any document issued by Seller shall constitute only an acknowledgment of the receipt thereof, and shall not be construed as an acceptance of any of the terms therein. No contract shall exist between Buyer and Seller except as provided in these Terms and Conditions.
4. Entire Agreement. The purchase order, including these Terms and Conditions constitutes the entire understanding and agreement (the “Contract”) between Buyer and Seller. This Contract integrates, merges, and supersedes all prior offers, negotiations, representations, agreements, and understandings concerning the subject matter hereof, and may not be altered or supplemented by any additional terms and conditions. Any representation, promise, course of dealing, course of performance, custom or trade usage, oral or otherwise, will not be binding upon either party. This Contract may not be amended or modified except by a writing executed by both parties.
Delivery of Goods and Performance of Services. Subject to these Terms and Conditions, Buyer agrees to buy, and Seller agrees to sell, the goods and/or services for the purchase price specified in the purchase order issued by Buyer in response to a price list, proposal, or other communication of pricing by or on behalf of Seller.
1. Date. Time of delivery and time of performance by Seller is of the essence. A date in the Contract for delivery of goods or performance of services is not approximate, such date is a guaranty of Seller.
2. Terms. Unless otherwise specified in the purchase order, delivery of goods shall be DDP Buyer’s facility 10558 Somerset Pike, Somerset, PA 15501; 422 Riggs Road, Somerset, PA 15501; or 115 Elizabeth Street, Cumberland, MD 51502 (Incoterms 2020), as applicable. Seller shall be responsible for arranging transportation of the goods and the insuring of the goods while in transit and prior to acceptance of the goods by Buyer. Seller shall be solely responsible for the cost of such transportation and insurance.
3. Risk of Loss; Title. Risk of loss shall pass from Seller to Buyer in accordance with the delivery term applicable to this Contract as specified in Section 2.2 above. Title to Goods shall pass from Seller to Buyer upon passage of risk of loss.
4. Delay. Seller shall be responsible to Buyer or any third party for any damages resulting from any failure or delay in manufacturing or shipping the goods or performing the services. If the delivery of the goods is not made at the times specified in the purchase order, or the rendering of services is not completed at the times specified in the purchase order, Buyer reserves the right, without liability, and in addition to its other rights and remedies, to take either or both of the following actions: (1) direct expedited routings of the goods (the difference in cost between the expedited routing and the purchase order routing shall be paid by Seller); and/or (2) terminate the Contract as provided in Paragraph 7, below. If Buyer terminates the Contract, Buyer may, at its option, purchase substitute goods or services elsewhere and charge the Seller with any losses and expenses incurred by Buyer in connection therewith. Buyer will have no liability for payment for goods delivered to Buyer which are in excess of quantities specified in the Contract and the applicable delivery schedules. Such goods shall be subject to rejection and return at Seller’s expense, including (but not limited to) transportation charges both ways. The foregoing remedies are in addition to, and not in lieu of or in limitation of, any other rights and/or remedies Buyer may have under applicable law or under the terms of the Contract.
Change Orders. Buyer reserves the right to make, at any time, written change orders with respect to any one or more of the following: (a) specifications, drawings, and data incorporated into the Contract; (b) methods of shipment or packaging; (c) place of delivery; (d) time of delivery; (e) manner of delivery; and (f) quantities. If any such change order causes an increase or decrease in the cost of, or the time require for, performance of the Contract, and equitable adjustment shall be made in the contract price or delivery schedule, or both. Any claim by Seller for an adjustment hereunder must be approved by Buyer in writing before Seller proceeds in accordance with such change order. If Seller proceeds in accordance with such change order without having first obtained Buyer’s written consent to an adjustment, Seller shall be deemed to have waived any claim for an adjustment and Buyer shall not be obligated to make or honor any adjustment relating to the change order in question.
Price and Payment Terms. Prices stated in the purchase order shall apply to all deliveries to be made or services to be rendered under the Contract. No price increases are valid, unless Buyer expressly consents to such increase in writing. The price set forth in the purchase order is the entire price for the goods and/or services. Unless specifically otherwise set forth in the purchase order, the price is inclusive of all shipping, postage, handling, packaging, containers, and all other materials or services provided in connection with performance of the Contract by Seller. Except as otherwise set forth in the purchase order, the price includes all federal, state, and local taxes, including, but not limited to, sales tax. Seller is solely responsible for paying all applicable taxes. Buyer shall not be obligated to pay any fees or charges whatsoever that are not provided for in the purchase order. Unless otherwise stated in the purchase order, Buyer’s payment to Seller shall be not be due until thirty (30) days following: (a) in the case of goods, delivery and acceptance of the goods; and (b) in the case of services, complete performance of the services.
Inspection and Acceptance of Goods. Final inspection and acceptance of goods shall be made as promptly as practical after delivery. However, the failure of Buyer to promptly inspect and accept or reject goods, or to detect defects via inspection, shall not relieve Seller of any liability for failure of the goods to conform to the Contract’s requirements, nor result in any liability to Buyer whatsoever. In the event the goods contain a defect or otherwise do not conform to the Contract requirements, Buyer has the right to: (a) reject the goods, (b) terminate the Contract for default, (c) require Seller to correct the goods, (d) accept the goods and deduct from the amount due to Seller the greater of any damages incurred by Buyer as a result of the non-conforming goods, or the difference in value between the non-confirming goods as delivered versus the price under the Contract. Seller shall promptly, at no expense to Buyer, repair, replace, or correct the non-conforming goods, according to the remed(ies) elected by Buyer. In the event Seller fails to promptly correct non-conforming goods, Buyer may replace or correct such non-conforming goods and charge Seller the costs to do so, and/or terminate the Contract. Payment for goods shall not constitute acceptance of goods. Acceptance of all or part of the goods shall not be deemed to be a waiver of Buyer’s right to revoke acceptance, reject the goods, and return any portion of the goods because of a failure of the goods to conform to the requirements of the Contract. Seller shall be solely responsible for all costs related to rejected goods, including return shipping and handling charges. Buyer’s remedies hereunder are cumulative, and are not in lieu of or in limitation of, any other rights and/or remedies Buyer may have under law or this Contract. Buyer shall not be liable for failure to accept any part of the goods if such failure is the result of any cause beyond the control of Buyer.
Seller’s Warranties. Seller warrants that is has good and marketable title to all goods furnished to Buyer under this Contract, and such goods shall be delivered to Buyer free and clear from all liens and encumbrances. Seller warrants that all goods furnished to Buyer under this Contract shall be free from defects in material and workmanship, and shall be in conformity with the requirements of the Contract. Seller further warrants that such goods shall be merchantable and fit for the purpose which they are purchased by Buyer, as well as free from defects in design. If Buyer approves Seller’s design, such approval shall not relieve Seller of its design warranty. All Seller warranties shall survive acceptance of goods by Buyer. The express warranties contained herein shall be in addition to, and not in lieu of, any other warranties given to Buyer by Seller or otherwise existing as a matter of law, whether such additional warranties are express or implied. In the event of any breach of the foregoing warranties, Buyer shall have such remedies as are provided under this Contract or as are otherwise provided by law. Any remedies specified herein are in addition to, and not in lieu of or otherwise limiting to, any remedy Buyer may have under applicable law.
Termination. In addition to any remedies that may be provided under these Terms and Conditions, Buyer may terminate the Contract with immediate effect upon written notice to the Seller, either before or after the acceptance of the goods or the seller’s delivery of the services, if Seller has not performed or complied with any of these Terms and Conditions, in whole or in part. If the Seller becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then the Buyer may terminate the Contract upon written notice to Seller. If Buyer terminates the Contract for any reason, Seller’s sole and exclusive remedy is payment for the goods received and accepted and services accepted by Buyer prior to the termination.
Indemnification. Seller agrees to defend, indemnify and hold harmless Buyer, its officers, agents, successors, assigns and customers against all claims, demands, damages, costs, expenses, attorneys’ fees or liability of any kind which arise from, or are related in any way to: (1) the actual or alleged infringement of any trade name, trademark, copyright or patent, or the misappropriation of any trade secrets or confidential information arising in connection with the possession, sale or use of the goods delivered, or services rendered, to Buyer under the Contract; (2) injuries or damages to any person or property arising from the performance of services for Buyer, if the Contract calls for the performance of such services; (3) the performance of the Contract by Seller or any agent or subcontractor of Seller; and/ or (4) the claims of third parties relating to or arising in connection with services performed and/or the goods delivered under the Contract. Seller further agrees, upon receipt of notification from Buyer, to promptly assume full responsibility for the defense of any and all such claims, suits, actions or proceedings for which Seller is obligated to provide indemnification under this Paragraph 8.
Waiver. No waiver by Buyer of any of the provisions of this Contract is effective unless explicitly set forth in writing and signed by Buyer. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Contract operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
Compliance with Law. Seller agrees that, in the performance of the Contract, it will comply with all applicable laws, regulations and orders of the United States or of any state or political subdivision. Seller acknowledges that Buyer’s customer may be a governmental entity. In such circumstances, without limiting the generality of the foregoing, Seller expressly represents and warrants that it shall comply with all requirements of state and/or federal law with respect to suppliers of government contracts, including, but not limited to, provisions expressly applicable to Buyer and Buyer’s suppliers. Buyer will note whether its purchase order is issued under a government contract when sending the purchase order to Seller, and shall provide written notice of such contract requirements to Seller upon request.
Dispute Resolution; Submission to Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to this Contract shall be instituted in the federal courts of the United States of America located in Johnstown, Pennsylvania, or the courts of the Commonwealth of Pennsylvania located in the Somerset, Pennsylvania, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
Governing Law. This Contract and all matters arising out of or relating to this Contract shall be construed in accordance with the laws of the Commonwealth of Pennsylvania, without reference to any applicable principles of conflicts of law which would direct the application of the laws of another jurisdiction.
Assignment. Buyer’s purchase order is issued to Seller in reliance upon Seller’s personal performance, and Seller agrees not to assign the Contract or to delegate the performance of its duties without the prior written consent of Buyer. Any such assignment or delegation which is attempted without the prior written consent of Buyer shall be void, and shall constitute a material breach of the Seller’s obligations under the Contract.
Severability. If any term or provision of this Contract is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Contract or invalidate or render unenforceable such term or provision in any other jurisdiction.
Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Contract shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
Recovery of Expenses. Buyer shall be entitled to recover from Seller all costs and expenses (including, but not limited to, reasonable attorney’s fees) which are incurred by Buyer in enforcing its rights under this Contract, including, but not limited to, the recovery of any amounts owed by Seller to Buyer under this Contract.
Amendment. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.

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