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Reliability Partners. Uptime Champions.

PURCHASE ORDER TERMS AND CONDITIONS

  1. Contract. Lovejoy, Inc. (“Seller”) has received an order (the “Purchase Order”) from you (“Purchaser”) wherein Purchaser has requested that Seller produce certain products, as are more fully described in the Purchase Order. Seller accepts the Purchase Order subject to the terms and conditions which are hereinafter set forth, and which, together with the Purchaser Order, constitute the contract between the parties. In the event and to the extent that any document which is deemed to be a part of the contract between the parties contains terms or conditions which are inconsistent with this acceptance, the parties agree that the terms and intent expressed in this acceptance shall control, regardless of the date of such other documents.

  2. Effective Date. This contract shall become effective upon the earlier of (a) the date that the Purchaser provides written approval of the terms stated herein, (b) the date that Purchaser pays any monies to Seller in furtherance hereof or (c) the date that Seller incurs any cost or liability in furtherance hereof.

  3. Cancellation Policy. This contract may not be cancelled by the parties except as provided herein. If the Purchase Order includes a multiple release schedule, Purchaser may cancel future releases upon written notice to Seller which shall be effective three (3) business days following its receipt by Seller. Purchaser shall be liable to pay Seller for all units theretofore produced pursuant to the Purchase Order, plus all work in progress, including labor and materials, and all materials purchased and/or maintained by Seller in furtherance of this contract. Seller may apply any deposit on hand toward the sums due upon cancellation and Purchaser shall pay any remaining balance under the terms of the contract.

  4. Compliance. Orders shipped under this contract will be considered complete upon shipment of a reasonable quantity over or under the amount specified in the order when it is impractical to produce the exact quantity ordered. Normal industry tolerances in specifications of the product shall be acceptable.

  5. Limited Warranty. Seller warrants all products sold hereunder to be free from defects in material and workmanship at the time of delivery to the purchaser. Defective products may be returned to Seller after inspection by Purchaser and upon receipt from Seller of shipping instructions specific to the defective products authorized by Seller to be returned. Products returned in accordance with the foregoing procedure will be replaced or repaired, at the option of Seller, without charge and returned to the purchaser F.O.B. Downers Grove, Illinois or South Haven, Michigan, depending upon origin of manufacture. In all cases, transportation costs and charges for returned products shall be paid by the purchaser and Seller hereby disclaims all responsibility for any and all such transportation costs and charges.

    This warranty is subject to the following LIMITATIONS:
    1. Purchaser’s exclusive remedy under this warranty is limited to the repair or replacement of defective products supplied by Seller, as set forth above.  SELLER IS NOT RESPONSIBLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM THE BREACH OF THIS OR ANY OTHER EXPRESS OR IMPLIED WARRANTY WITH RESPECT TO THE PRODUCTS, WHETHER ARISING IN TORT OR BY CONTRACT.  SELLER FURTHER DISCLAIMS ALL LIABILITY FROM PERSONAL INJURY RELATING TO ITS PRODUCTS TO THE EXTENT PERMITTED BY LAW.  BY ACCEPTANCE OF ANY OF SELLER’S PRODUCTS, THE PURCHASER ASSUMES ALL LIABILITY FOR THE CONSEQUENCES ARISING FORM THEIR USE OR MISUSE.
    2. This express warranty is the only warranty applicable to this transaction.  IT EXCLUDES ALL OTHER EXPRESS ORAL OR WRITTEN WARRANTIES AND ALL WARRANTIES IMPLIED BY LAW WITH RESPECT TO THE PRODUCTS, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
    3. Every claim under this warranty or related to this Purchase Order shall be deemed waived by Purchaser unless made in writing within one (1) year of the receipt of the products to which such claim relates.
    4. This warranty is void in the event that repairs are made by anyone other than Seller without prior authorization from Seller. 
    5. No person, firm or corporation is authorized to assume for Seller any other liability in connection with the sale of its products.
    6. No person, firm or corporation is authorized to modify or waive the terms of this warranty unless done in writing and signed by a duly authorized agent of Seller.

  6. Force Majeure.  The timeliness of performance by Seller under this agreement is in every case subject to delays caused by an act of God, war, riot, fire, explosion, accident, flood, sabotage, inability to obtain materials or power, civil commotion, governmental laws, regulations or orders, acts or inaction of Purchaser, inability of Seller's subcontractors to perform, or any other cause beyond the reasonable control of Seller, or labor trouble, strike, lockout or injunction (whether or not such labor event is within the reasonable control of Seller).  In the event of any such delay, the period of time for performance of services affected by such delay will be extended to reflect the effective delay occasioned thereby.

  7. Export Controls.  Purchaser acknowledges that Seller and/or its affiliates or subsidiaries provide it with products that may be subject to the export laws and regulations and business conduct laws of the United States and other countries.  Purchaser acknowledges that Seller would not sell any products to Purchaser without the assurances, covenants, representations and warranties set forth in this agreement, and that the provisions set forth herein are a material part of any agreement to purchase products from Seller. 

    Accordingly, Purchaser hereby acknowledges, covenants, represents and warrants that (i) it will assist Seller in obtaining any export licenses or other approvals by supplying such documentation or information as may be requested by Seller; (ii) it will comply with and shall, at Seller’s request, demonstrate such compliance with all applicable export laws, restrictions, and regulations of the U.S. Department of Commerce, the U.S. Department of Treasury and any other U.S. or foreign agency or authority whenever it transfers, exports or re-exports product(s) obtained from Seller; (iii) as required, determine and secure licensing for items, end uses and end users of control under U.S. export laws and present said license(s) to Seller upon request; (iv) it will not transfer, export or re-export, directly or indirectly, any product(s) subject to U.S. export control laws that are acquired from Seller to Cuba, Iran, North Korea, Sudan, Syria, or any other country subject to U.S. trade embargoes, or to any party on the U.S. Export Administration Table of Denial Orders or the U.S. Department of Treasury List of Specially Designated Nationals, or to any prohibited destination in any of the Country Groups specified in the then current Supplement No.1 to Part 740 or the Commerce Control List specified in the then current Supplement No. 1 to Part 738 of the U.S. Export Administration Regulations (or any successor supplement or regulations) or any nationals thereof, or to any other country subject to restriction under applicable laws and regulations; (v) it will comply in all respects with the U.S. Foreign Corrupt Practices Act, local anti-corruption laws, U.S. money laundering laws and regulations and the U.S. Patriot Act; (vi) in a routed transaction, it will make sure the forwarder files the necessary documents (AES, SED, etc) with the U.S. Department of Commerce and US Census Bureau; and (vii) it will indemnify, defend and hold harmless Seller from any and all fines, damages, losses, costs, and expenses (including reasonable attorneys’ fees) incurred by Seller as a result of any breach of the terms of this Section by Purchaser or any of its affiliates or customers (this clause shall survive termination of the Purchase Order).

    With respect to the laws of the United States, Purchaser specifically acknowledges, represents and warrants that, to the best of its knowledge and belief, if it exports or causes to be exported any items obtained from Seller, this will be done in compliance with the Export Administration Regulations, the International Traffic in Arms Regulations, and the regulations administered by the U.S. Treasury Department’s Office of Foreign Assets Control.  Purchaser understands that information concerning U.S. export and reexport control laws can be found at www.bis.doc.gov and www.pmddtc.state.gov

  8. Term and Payment:
    1. Payments due from Purchaser to Seller hereunder shall be as provided in the Purchase Order.
    2. Seller may terminate this agreement in the event that Purchaser makes an assignment for the benefit of creditors, or a voluntary or involuntary petition is filed by or against Purchaser under any law having for its purpose the adjudication of Purchaser a bankrupt or the reorganization of Purchaser, or should Purchaser default in any payments due Seller as herein provided.
    3. Purchaser shall pay a late charge of 1.5% per month (18% ANNUAL PERCENTAGE RATE) or at the maximum rate permitted by applicable law, whichever is less, on any unpaid amount for each calendar month, or fraction thereof, that any payments to Seller are in arrears, based upon the schedule of payments set forth above.

  9. Legal Costs and Expenses. In the event that Seller shall incur any legal fees or costs or expenses in order to enforce or attempt to enforce this agreement caused by a breach hereof or default herein by the customer, the customer shall pay all such attorneys' fees and costs.

  10. Taxes. The liabilities incurred by Purchaser under this agreement do not include any federal, state or local privilege, use, sales or excuse taxes paid or payable by either Seller or Purchaser with respect to this agreement or any of the services performed or products, equipment or other items provided by Seller or Purchaser which shall be paid by Purchaser, except for taxes based on Seller's net income or capital stock, which shall be borne by Seller.

  11. Assignment. Seller may assign, subcontract, transfer or otherwise dispose of, in whole or in part, any of its interests, rights or obligations under this agreement. Any subcontractor performing maintenance services or other services hereunder will be subject to the same terms and conditions as are set forth herein. Purchaser shall not assign or subcontract any part or all of its interests hereunder except upon the prior written consent of Seller, which consent shall not be unreasonably withheld, and any attempted assignment or subcontracting without Seller's prior written consent shall be null and void.

  12. Governing Law, Jurisdiction and Venue. This contract shall be governed by, and construed and enforced in accordance with the laws of the State of Illinois. In the event of a dispute hereunder, the parties consent to the exclusive jurisdiction of the state courts of, and federal courts sitting in, the State of Illinois. Any state court action, or any alternative dispute resolution proceeding shall be filed and maintained in DuPage County, Illinois and any federal court action shall be maintained in the federal court venue nearest to DuPage County, Illinois.

  13. Severability. If any provision of this acceptance shall be deemed to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

  14. Entire Agreement. This agreement shall constitute the entire agreement between the Purchaser and Seller irrespective of inconsistent or additional terms or conditions in Purchaser's purchase orders or other documents submitted by Purchaser to Seller. This Agreement supercedes any other agreement whether written or verbal between Purchaser and Seller and this Agreement may not be modified except by a written amendment specifically referencing this Agreement.

  15. Binding Effect. This agreement shall be binding upon the parties hereto and their heirs, executors, personal representatives, beneficiaries, successors and assigns, subject to the limitation of assignment set forth herein.