Please confirm acceptance of the Purchase Order (“P.O.”) in twenty-four (24) hours. If the acknowledgement is not sent within 24 hours, both parties agree that the P.O is in effect, according to the pricing, quantities, delivery instructions, requested delivery date, terms and conditions and all other information and specifications set forth and contained herein. Any requested changes to this P.O. must be submitted to Kleen Concepts, in writing, within 24 hours of the receipt of the P.O..
Commencement of work or shipment of any items above shall be deemed acceptance of this PO and its terms as wells as acknowledgement and acceptance of Kleen Concepts’ Kleen Concepts’ Master Vendor Agreement and Standard Purchase Order Terms & Conditions in effect as of the date of this P.O. (also found at https://kleen-concepts.com/wp-content/uploads/WEBSITE-PO-Terms-Condit.pdf). Shipping terms used on this P.O. shall be as defined by Intercoms 2010.
Packing List must include an accurate description of the Products(s), Quantities and Purchase Order Number for the corresponding shipment.
For Drop Ships only, PAPERWORK accompanying the shipment MUST NOT contain PRICING.
By fulfilling this Purchase Order, Seller agrees to ship and invoice according to the items, quantities, prices, payment terms, and the destination specified on the Purchase Order. It is the Seller’s responsibility to contact Kleen Concepts to have a Purchase Order reissued to correct any incorrect/incomplete information before commencement of production. Kleen Concepts will only issue payment for goods and/or services according to quantities, items, prices and payment terms on this Purchase Order and has no obligation to honor invoices contrary to these terms.
If a shipping discrepancy arises, Seller must provide a valid Proof of Delivery to us in order for Kleen Concepts to consider starting an investigation to resolve the matter. Discrepancies over items, quantities, or quality of the shipment must be resolved by shipper within 72 hours. Damages arising during transit are the responsibility of Seller and the carrier and must be resolved within 72 hours.
Seller shall keep strict confidentiality regarding Kleen Concepts’ customers, Product specifications, materials, pricing and purchase orders.
By shipping Products specified in this Purchase Order, Seller represents and warrants to Kleen Concepts and any end users of the Products that (the “Product Warranty”): (a) for the period provided by applicable Law, or for such longer period as provided by Kleen Concepts to its customers or any end users, the Products will: (i) conform, in all respects, to the specifications, standards, approved samples, descriptions, quality requirements, performance requirements, statements of work, and fit, form and function requirements furnished, specified or approved by Kleen Concepts for the Products; (ii) conform with Kleen Concepts’ specified quality standards; (iii) be merchantable (as such term is defined in the UCC) and free from defects, latent or otherwise, in design, materials and workmanship; (iv) conform to all brochures, manuals and claims furnished by Seller to Kleen Concepts; (v) not infringe upon, violate or misappropriate the Intellectual Property Rights of any Person; (vi) be fit and sufficient for the particular purpose intended by Kleen Concepts and its customers, of which the Seller is aware (and Seller acknowledges that it knows of Kleen Concepts’ intended use of the Products and that such Products have been selected, designed, manufactured or assembled by Seller based upon Kleen Concepts’ stated use and will be fit and sufficient for the particular purposes intended by Kleen Concepts); and (vii) comply with all applicable Laws; and (b) each of the Products will be new and conveyed by Seller to Kleen Concepts with good title, free and clear of all Encumbrances.
Products are subject to Kleen Concepts’ inspection and approval or rejection notwithstanding Kleen Concepts’ prior receipt of or payment for the Products. Kleen Concepts shall have a reasonable period of time, not to be less than thirty (30) days following delivery of the Products to the Delivery Location (“Inspection Period”), to inspect all Products received under this Agreement and to inform Seller, in writing, of Kleen Concepts’ rejection of any Nonconforming Products. A reasonable amount of additional time shall be allowed for the discovery of latent defects (such as a container dropped during transport), where the external package shows no obvious damage. Kleen Concepts may also return to Seller any or all units of rejected Products that constitute Nonconforming Products because they exceed the quantity stated in any Purchase Order. If Kleen Concepts rejects any other Nonconforming Products, Kleen Concepts may elect to (a) require Seller, at Seller’s sole cost, to repair or replace the rejected Products at the location specified by Kleen Concepts (which may include Seller’s location, Kleen Concepts’ location or the location of a third party), (b) purchase similar Products from another source (and apply such purchases against Kleen Concepts’ quantity requirements hereunder), (c) produce similar Products itself (and apply such production quantities against Kleen Concepts’ quantity requirements hereunder), (d) repair the Products itself or have a third party repair the Products, (e) require Seller to reimburse Kleen Concepts for loses in labor, raw materials, etc. directly caused by the Nonconforming Products, (f) require Seller to refund any or all affected shipments containing such Nonconforming Products, and/or (g) retain the rejected Products; in each case without limiting the exercise by Kleen Concepts of any other rights available to Kleen Concepts under this Agreement or pursuant to applicable Law. All returns of Nonconforming Products to Seller are at Seller’s sole risk and expense. Kleen Concepts’ Acceptance of any Products will not be deemed to be a waiver or limitation of Seller’s obligations pursuant to this Agreement (or any breach thereof), including those obligations with respect to Seller’s Product Warranty and Seller’s duty to indemnify Kleen Concepts. For all returned Products, Kleen Concepts shall receive a refund of Kleen Concepts’ cost, including shipping and handling costs for any Nonconforming Products.
By fulfilling this Purchase Order, Seller agrees to indemnify, defend and hold harmless Kleen Concepts and its affiliates and customers, and their respective directors, officers, employees and agents (collectively, “Indemnified Persons”) from and against any third party claims and all losses, damages, liabilities, costs and expenses (including, without limitation, attorneys’ fees and expenses, court costs and costs of appeal), arising out of, or in any way connected with, any proceeding (legal or equitable) or claim brought or asserted against any of them, whether meritorious or groundless, arising out of, or in any way related or attributable to, (a) any breach of this Agreement by Seller (including, without limitation, any breach of any warranty or certification under Section 2), (b) the manufacture, sale, possession or use of any Product purchased hereunder by Kleen Concepts, (c) any allegation that any Product, or any part thereof, or the distribution or use thereof, infringes any patent, copyright, trademark, trade secret or other intellectual property right of any third party, (d) any claim for personal injury, death or property damage caused by, or arising out of the possession or use of, any Product purchased by Kleen Concepts hereunder, except to the extent that any such claim results from the gross negligence or willful misconduct of Kleen Concepts or any other Indemnified Person, (e) any intentional misconduct or negligence by Seller or its employees or agents in performing its obligations under this Purchase Order, (f) any actual or alleged unfair business practices, false advertising, misrepresentation or fraud resulting from Product Specifications or Documentation provided by Seller and disclosed by Kleen Concepts, or (g) any Product recall, whether or not initiated by Kleen Concepts, its customers, Seller or a governmental agency.
By fulfilling this Purchase Order, Seller agrees to maintain Minimum Insurance Coverage. For a period of three (3) years after Product delivery, Seller shall maintain, at its sole cost and expense: (1) Errors and Omissions Insurance in amounts not less than $1 million per occurrence and $2 million in the aggregate. (2) General & Commercial Liability Insurance and Personal and Advertising Injury Insurance in amounts not less than $5 million per occurrence and $10 million annual aggregate. (3) Where applicable, Seller shall carry all insurance required by DOT regulations. Seller shall carry public liability or commercial general liability insurance covering all operations by or on behalf of Seller arising out of or connected with this Agreement, including coverage for products liability and products/completed operations liability, claims by one insured against another insured, and Seller’s defense and indemnity obligations hereunder. Such insurance shall also provide, by endorsement or otherwise, for contractual liability and cross liability and shall include a Seller’s Broad Form Additional Insured Endorsement, naming Kleen Concepts, its affiliates, and their respective directors, officers, shareholders, employees and agents as additional insureds. If “claims made” policies are provided, Seller shall maintain such policies for at least three (3) years after the latest delivery date of Product(s) in this Purchase Order. Seller’s Insurance shall be considered primary, non-contributory, and not excess coverage. The insurance carrier(s) must have a minimum A.M. Best rating of “A-, VII”.
This Purchase Order and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the Laws of the State of Arizona, United States of America, without regard to the conflict of laws provisions thereof. In the event of any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination or invalidity hereof (each, a “Dispute”), the parties hereto shall first attempt in good faith to resolve any Dispute by negotiation and consultation between themselves, including, without limitation, not fewer than three (3) negotiation sessions. If the parties hereto cannot resolve any Dispute after such negotiation sessions, either party may submit the Dispute to a mutually agreed mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The parties covenant that they will use commercially reasonable efforts in participating in the mediation. The parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the parties. If the parties hereto cannot resolve the dispute after sixty (60) days from the commencement of mediation, then either party may submit the Dispute to arbitration administered in Scottsdale, Arizona by the American Arbitration Association under its Commercial Arbitration Rules. The award rendered by the arbitrator shall be final and binding on the parties and may be entered and enforced in any court having jurisdiction.