Terms and Conditions

This Order expressly limits acceptance in the Terms of the Order.

PROVAIL Fabrication Division (Buyer) and Seller agrees as follows:

Acceptance of Order: This Order is Buyer’s offer to Seller. Seller’s Acceptance is expressly limited to the terms of the Order and Buyer hereby objects to any additional or different terms in Seller’s acceptance. Seller accepts this Order as written by executing and returning to Buyer the Acceptance or Acknowledgement copy of the Order, or by beginning performance.

Specifications: The Seller will furnish articles as previously or herein specified or described by the Buyer and as previously shown, furnished or represented by the Seller as to materials, design, style, fit, color, and quantity. The Seller may not make any changes to the specifications as to materials, design, style, fit, color, and quantity without prior written consent by the Buyer.

Warranties: Seller warrants that the articles supplied by the Seller will conform to each of the specifications and standards hereby established. Any disclaimer of the Express warranty or of implied warranties of merchantability or fitness for a particular purpose shall be ineffective.

Inspection and Rejection of Goods: All goods may be inspected by Buyer during production, prior to shipment, and within a reasonable time after delivery. At Buyer’s option, it may return to Seller goods rejected for failure to meet any specifications or required quantity.

Quantity: The Seller will not furnish quantities in excess of those set forth in this purchase order without Buyer’s written permission, nor substitute specifications, sizes, colors, or styles. The Buyer’s count after receipt is conclusive regarding all shipments.

Delivery: The Buyer reserves the right to cancel this order, without expense, if shipment is not made within the time specified unless a formal extension has been obtained by the Seller, or later delivery requested in writing by the Buyer. The Buyer reserves the right to return goods, or alternatively, to hold payment on order shipped early until date specified by the Buyer, unless written approval of early shipment and payment has been provided by Buyer.

Marking and Packaging: Seller will mark the purchase order number, the quantity, and the PROVAIL product description on all packages furnished and all related documents. Seller will comply with all packaging requirements established by Buyer.

Shipment Terms: No Charges shall be allowed for transportation, boxing, crating, or other packaging unless noted on this purchase order. In those circumstances where the Buyer is to be billed by the Seller for transportation charges, a copy of the transportation invoice will accompany the Seller’s invoice.

Remedies: Any disclaimer or limitation or remedies for breach of warranties or other contractual obligations of Seller shall be ineffective. Seller shall compensate Buyer, at rates established by Buyer, for inspection, return shipment or rendering goods acceptable in connection with the rejection of goods or packaging, Seller shall reimburse Buyer for all administrative expenses and lost profits associated with back orders or cancellations due to rejection of goods, late delivery of delivery of insufficient quantities. The remedies are in addition to other rights and remedies to which Buyer may be entitled by operation of Law.

Indemnity: The Seller agrees to defend, protect, hold harmless and indemnity the Buyer from any loss or expense, including reasonable attorney’s fees and expenses, of every kind and nature, occasioned by (1) actual or alleged infringement of any patent, copyright, trademark (or other exclusive marks specified by Buyer) or other trade rights or (2) personal injuries arising out of the purchase, sale, or use of the articles supplied by the Seller under this order. Buyer shall give Seller reasonable notice of any such claims and give Seller and opportunity to retain counsel of its choice to defend the action.

Protection of Trademarks and Confidentiality: Seller shall not sell, either at retail or wholesale, or otherwise transfer to third parties merchandise which bears PROVAIL Labels, trademarks, logos, or designs unless such distinctive identification marks have been completely removed. Any information provided to Seller regarding Buyer’s purchasing, handling and marketing of goods shall be treated as confidential and shall not be disclosed to third parties.

Risk of Loss: The Seller assumes of loss or damage to the following: (1) to all goods ordered until delivery is effected to Buyer; (2) to any property in the possession of the Seller received from or for the account of the Buyer, until such property has been delivered to the Buyer, and (3) to any goods ordered and rejected by the Buyer.

Miscellaneous: The contract shall be deemed made in Washington and interpreted in accordance with the laws of Washington. Written acknowledgement or shipment by seller of goods shall be constituting acceptance of the terms set forth herein. The terms and conditions set forth in this purchase order shall not be rejected, modified or supplemented by any subsequent memoranda of Seller unless signed by Buyer. The Seller warrants that the articles ordered shall be produced in compliance with acceptable laws, rules and regulations. No delay of failure on the part of the Buyer in exercising any rights under this order, and no partial or single exercise thereof, shall constitute a waiver of such rights hereunder. Neither party is the agent of the other party and each party is an independent contractor with respect to the other party. No work under this purchase order shall be assigned, nor shall work be subcontracted, without consent of the Buyer.

Partial Invalidity: If any provision of the order is or becomes void or unenforceable by force or operation of law, the other provisions shall remain valid and enforceable.

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