PURCHASE ORDER TERMS AND CONDITIONS
1. TERMS: The terms and conditions of this Purchase Order, including those on the face hereof, and those set forth in the Sales Agreement (if any) signed by the Seller, the Compliance Documents (defined below) and any other documents specifically referenced herein, represent the entire agreement between Seller and LL Flooring Services, LLC ("LL Flooring"). Acceptance is limited to the terms and conditions of this Purchase Order and no purported revisions of, additions to, or deletions from this Purchase Order shall be effective, whether in Seller's proposal, invoice, acknowledgment or otherwise, and no local, general or trade custom or usage, shall be deemed to modify this Purchase Order unless expressly agreed to in writing by LL Flooring's authorized representative. The delivery of any goods pursuant to this Purchase Order shall constitute acceptance by Seller of this Purchase Order and all of its terms and conditions. Any reference on the face of this Purchase Order to Seller's proposal shall not include any terms or conditions in Seller’s proposal.
2. SPECIFICATIONS: All goods furnished pursuant to this Purchase Order shall strictly conform to the specifications, descriptions and warranties set forth or referenced in this Purchase Order. No change in this Purchase Order shall be made except upon written agreement of LL Flooring.
3. TIME AND PLACE OF DELIVERY; LL FLOORING'S INSPECTION; ACCEPTANCE: Time is of the essence for this Purchase Order. Delivery must be made as specified on the face of this Purchase Order. LL Flooring reserves the right to reject goods and to cancel all or any portion of this Purchase Order in the event of failure to deliver at the time and place specified. LL Flooring's acceptance of any part of a shipment not delivered as specified herein shall not obligate LL Flooring to accept the remainder of that shipment or any future shipments. If Seller is required to provide Material Safety Data Sheets, they must be delivered to LL Flooring prior to delivery of any goods under this Purchase Order. All goods shall be received subject to LL Flooring's inspection and acceptance, and subject to LL Flooring's right to reject and return at Seller's expense goods which fail to conform strictly to the requirements of this Purchase Order. All materials are subject to inspection and testing by LL Flooring.
4. EXTENSION OF TIME OF DELIVERY: LL Flooring shall not be liable to Seller for any failure of LL Flooring to take any delivery hereunder when due if occasioned by any event beyond LL Flooring's reasonable control including, without limitation: fire, flood, earthquake, lightning or other acts of God; acts of, or compliance with the directions of civil or military authority, including any federal, state or local agency or authority; wars; riots; civil unrest, insurrections; sabotage; accident; embargo; strike or other labor trouble; interruption of or delay in transportation services; shortage or failure of supply of transportation or materials; or equipment breakdown. At LL Flooring's option, the time for delivery hereunder shall be extended to the extent of the delay occasioned by any such circumstance.
5. RISK OF LOSS: Risk of loss of any goods sold hereunder shall remain with the Seller and only transfer to LL Flooring upon delivery and acceptance.
6. SHIPMENT: Goods must be shipped by the particular route, method and carrier as stated in this Purchase Order. In the event that Seller fails to ship goods on or before any scheduled shipping date, LL Flooring shall have the right to specify a more rapid method of shipment than was specified originally and Seller shall bear, at no additional cost to LL Flooring, any increased costs occasioned thereby.
7. PACKING, MARKING, AND INVOICING: A packing list must be included by Seller with each shipment. Two copies of Seller's invoices, together with original bills of lading, properly signed by carrier's representative, must be forwarded by Seller to LL Flooring no later than the day after shipments are made. Individual invoices must be issued for each separate shipment. LL Flooring must not be charged for packaging, boxing, crating or cartage. All invoices, packing lists, bills of lading, and each separate package within each shipment shall clearly reference piece number, LL Flooring's Purchase Order number and Seller's packing slip number. Partial shipments must be identified as such on the shipping memoranda and invoices. In addition, Seller must provide LL Flooring with accurate and complete information to report the country (or countries) of origin, including, in the case of plant or wood products, the species, of any goods covered by this Purchase Order.
8. PAYMENT: WAIVER OF LIENS: Payment will be made following receipt and acceptance of the goods and receipt, in proper form and substance, of all documentation required by this Purchase Order. Seller shall furnish to LL Flooring any analysis or breakdown of the price as LL Flooring may reasonably request. Seller warrants that the goods are free from any liens and expressly waives any lien rights it may have with respect to goods. Seller agrees to indemnify, defend and hold harmless LL Flooring from and against any and all liens and encumbrances arising out of Seller's performance of this Purchase Order or rising out of any claim for payment by any laborer, subcontractor or supplier of Seller.
9. SELLER'S WARRANTIES: Seller expressly warrants that all goods covered by this Purchase Order will: (a) strictly conform to Seller's specifications, drawings, samples and other written materials and descriptions, or, to the extent the goods were purchased to LL Flooring's specifications and drawings as set forth or referred to in this Purchase Order, that the goods strictly conform with those specifications and drawings; (b) be free from defects in design, material and workmanship; (c) be of merchantable quality and suitable for the particular purposes intended, whether express or reasonably implied; and (d) bear all warnings, labels, and markings required by applicable federal, state, and/or local laws and regulations. In addition, Seller warrants that: (e) none of the goods covered hereby, to the extent they are subject to laws prohibiting adulteration or misbranding, is adulterated or misbranded within the meaning of such laws as of the date of delivery to LL Flooring; (f) all goods covered hereby may be introduced into the stream of commerce without violation of all applicable laws and regulations; and (g) all goods and parts thereof supplied pursuant to this Purchase Order have been sourced, produced, delivered, packaged, labeled and manufactured in compliance with all applicable laws, codes and regulations.
10. LL FLOORING'S REMEDIES: LL Flooring's acceptance of all or any part of the goods or services provided hereunder shall not be deemed a waiver of the failure of such goods or services to conform to all of the warranties set forth in Section 9. LL Flooring retains the right to cancel any portion of the remaining order, to reject any portion of the goods delivered, or to revoke acceptance as to any portion of the goods accepted, and return such goods to Seller and to recover the purchase price, any excess costs of cover, and damages, including manufacturing costs, costs of removal or recall, transportation and custodial expenses, injury to person or property incurred by LL Flooring, all in addition to LL Flooring's other remedies under this Purchase Order or applicable law. If Seller becomes insolvent or makes an assignment for the benefit of creditors, or files or has filed against it any petition in bankruptcy, LL Flooring shall have the right to cancel this Purchase Order immediately.
11. PATENT, COPYRIGHTS, TRADEMARKS: Seller warrants that the goods furnished under or used in connection with this Purchase Order (except those furnished according to LL Flooring's specific design) and LL Flooring's express or reasonably implied intended use thereof, do not and will not infringe any patent, copyright, trademark, trade secret or other proprietary right of any third party. If any claim, suit or proceeding is threatened, made or instituted against LL Flooring alleging any such infringement, Seller shall indemnify, defend and hold LL Flooring harmless from and against any damages, liabilities, judgments, costs and expenses (including without limitation reasonable attorneys’ fees) it may incur in connection with any such claim, suit or proceeding. In the event that the goods or LL Flooring's use is held in any suit or proceeding to constitute an infringement, or if Seller determines that there is a substantial risk of a finding of such infringement, Seller agrees, as appropriate, and at its expense to: (a) procure for LL Flooring, at no expense to LL Flooring, the right to continue using the goods, (b) replace the goods with equivalent goods that meet the requirements of this Purchase Order and that do not infringe any such rights, or (c) modify the goods so that they become non-infringing.
12. INDEMNIFICATION: To the fullest extent permitted by law, Seller agrees to indemnify, defend, and hold harmless LL Flooring, its affiliates, and their respective directors, officers, employees and agents (the "Indemnified Parties") from and against all claims, demands, causes of action, losses, costs and expenses (including without limitation reasonable attorneys' fees and costs of defense) (collectively, "Losses") arising out of or incident to the performance of Seller, its employees, agents or invitees ("Seller Parties") hereunder, provided that such Losses are attributable to (a) the negligence or willful misconduct of the Seller Parties, (b) the failure of the Seller Parties to comply with the terms of this Purchase Order and/or applicable laws, regulations, or orders, (c) claims related to an allegation of or finding of infringement of a trademark, copyright, patent or violation of other intellectual property rights; (d) bodily injury, death or property damage; (e) breach of warranty of a product's merchantability or fitness for a particular purpose; (f) defects or deficiencies in the manufacturing of the goods; (g) the failure of the goods to meet the applicable specifications; or (h) representation or misrepresentation regarding a goods' attributes, performance ability country(ies) of origin or species information; in each case regardless of whether or not caused in part by the negligence or other fault of any Indemnified Party hereunder; provided that Seller shall not be liable for Losses caused by the sole negligence or willful misconduct of any Indemnified Party.
13. BUSINESS PRACTICES. Seller represents and warrants that its operations comply with all applicable laws and regulations of Seller's country and its political subdivisions. This includes, but is not limited to, employment and labor, environmental protection and intellectual property laws and regulations. Seller understands that failure of Seller to adhere to such laws and regulations may damage LL Flooring's reputation in the marketplace. In the event such damage occurs or in LL Flooring's reasonable discretion, is threatened, LL Flooring may cancel any outstanding contracts and/or purchase orders with Seller and cease doing business with Seller if Seller is unable to correct the situation in a manner satisfactory to and within a time frame acceptable to LL Flooring.
14. COUNTRY OF ORIGIN. Seller shall not provide LL Flooring with any goods, including without limitation, goods manufactured in whole or in part from any plant, tree or plant product, which are falsely or fraudulently labeled as to country of origin information or otherwise. Seller agrees not to engage in practices or arrange for purchase of any materials or services from others who engage in practices which aid or abet the transshipment of goods in a manner which conceals the true origin of the goods or which permits the evasion of quotas or tariffs on, or voluntarily restraint agreements with respect to, imports of textiles or other goods.
15. INSURANCE. As a condition to doing business with LL Flooring, Seller agrees to carry Product Liability insurance from insurance companies with an AM Best rating of at least A or better, and on an occurrence basis, with limits no less than $5 Million per occurrence and naming LL Flooring as an additional insured and no policy can be cancelled or materially changed without giving LL Flooring at least 30 days prior written notice. Seller's insurance will be primary for all claims. Seller must provide proof of said insurance reasonably acceptable to LL Flooring.
16. TERMINATION: LL Flooring may at any time, without cause, terminate this Purchase Order in whole or in part upon written notice to Seller. LL Flooring shall not be responsible for any costs or damages incurred by Seller as a result of such cancellation.
17. WARRANTY REGARDING ANTIDUMPING AND COUNTERVAILING DUTIES: Seller hereby grants to LL Flooring a warranty of non-applicability of antidumping duties or countervailing duties with respect to goods that are sold before the date of publication of any antidumping and/or countervailing duty order applicable to the goods governed by this Purchase Order and are exported before the date of publication of a final antidumping and/or countervailing duty determination. Pursuant to this warranty, Seller agrees to reimburse to LL Flooring all costs associated with (i) any cash deposit, or bond or other security for estimated antidumping and/or countervailing duties, required as a condition of entry, and (ii) any final antidumping and/or countervailing duties assessed, applicable to imports during this period resulting from the antidumping and/or countervailing duty proceeding. Seller agrees to transfer funds sufficient to reimburse LL Flooring for such cash deposits, bonds, or other security, thirty (30) days prior to the anticipated date of entry of goods subject to an antidumping and/or countervailing duty case. Failure to timely advance duties or security costs to LL Flooring renders this contract voidable at the sole discretion of LL Flooring. Seller further agrees to reimburse LL Flooring for any final antidumping or countervailing duties imposed on such goods within thirty (30) days after liquidation of the import entries by U.S. Customs and Border Protection.
18. SUPPLIER MANUAL AND CODE OF CONDUCT: Seller agrees to abide by, comply with and be subject to the LL Flooring Supplier Code of Conduct with Respect to Environmental and Social Responsibility (Exhibit "C" of the Sales Agreement) and the LL Flooring Supplier Reference Manual in effect at the time the Purchase Order is issued by LL Flooring (together, the "Compliance Documents"). Any rights, obligations, requirements or provisions in the Compliance Documents are in addition to and not in lieu of the terms and conditions set forth herein.
19. ASSIGNMENT AND SET-OFF: Seller shall not assign its rights or delegate its performance hereunder, nor any interest herein, without LL Flooring's prior written consent and any attempted assignment or delegation without such consent shall be void. LL Flooring shall be entitled at all times to set-off any amount owing from Seller to LL Flooring, whether under this Purchase Order or otherwise, against any amounts otherwise payable to Seller. If Seller does not contest a set-off within thirty (30) days of LL Flooring making the deduction, Seller shall waive any claim challenging such set-off and it shall be deemed accepted.
20. CONFIDENTIALITY: Seller and its directors, officers, employees and agents shall not disclose to any third party any information pertaining to the goods provided hereunder, or pertaining to LL Flooring's business or operations which Seller obtains or has access to in connection herewith, without the prior written consent of LL Flooring.
21. NO WAIVER OF DEFAULTS: No failure by LL Flooring to enforce at any time any of the terms or conditions of this Purchase Order shall constitute a waiver thereof or in any way impair LL Flooring's right at any time to avail itself of such remedies as it may have to enforce such terms or conditions. No waiver by LL Flooring hereunder will be effective unless in writing and signed by LL Flooring.
22. NO WAIVER OF DEFAULTS: No failure by LL Flooring to enforce at any time any of the terms or conditions of this Purchase Order shall constitute a waiver thereof or in any way impair LL Flooring's right at any time to avail itself of such remedies as it may have in order to enforce such terms or conditions. No waiver by LL Flooring hereunder will be effective unless in writing and signed by LL Flooring.
23. SURVIVAL; REMEDIES CUMULATIVE: All agreements and representations of Vendor Partner herein (including those regarding, confidentiality, indemnification and warranties) shall survive delivery and final payment hereunder, or any earlier termination hereof. All of the rights and remedies available to LL Flooring hereunder are in addition to, and not in limitation of, the rights and remedies otherwise available at law or in equity.
24. SEVERABILITY: Any provision of this Purchase Order that is unenforceable in any jurisdiction shall be ineffective to the extent of such unenforceability (but shall be enforced to the maximum extent permissible) without invalidating the remaining provisions hereof.
25. GOVERNING LAW: This Purchase Order shall be governed by the laws of the Commonwealth of Virginia, including its Uniform Commercial Code, without giving effect to its conflicts of law principles, and not by the U.N. Convention of Contracts for the International Sale of Goods. Vendor Partner consents to the exclusive jurisdiction and venue of the United States District Court for the Eastern District of Virginia in any matter arising under or related to this Purchase Order.