These terms and conditions shall apply to and govern the sale of any and all equipment by Plex Systems, Inc. (“Plex”) to Buyer. The list of equipment and related accessories (collectively, “equipment”) offered and sold by Plex is set forth in the Plex IT Solutions Catalog at http://www.plex.com/pdf/Plex_Systems-IT_Services_Catalog.pdf and may be amended from time to time by Plex in its sole discretion. No terms and conditions other than the terms and conditions contained herein shall be binding upon Plex unless accepted in a writing signed by Plex's Chief Financial Officer (“CFO”) and Buyer. All terms and conditions contained in any prior oral or written communication including, without limitation, Buyer's purchase order, which are different from, inconsistent with, and/or in addition to the terms and conditions set forth in these terms and conditions are hereby objected to and rejected and shall not be binding on Plex, irrespective of whether they would materially alter this document. All prior proposals, negotiations and representations, if any, are superseded and merged herein. Buyer shall be deemed to have accepted and agreed to all terms and conditions contained herein if any part of the equipment is shipped or an invoice is presented in connection with such equipment.
All fees shall be paid by Buyer in United States dollars within thirty (30) days of the date of the invoice. Unpaid invoices are subject to a late payment charge of 1.5% per month on any outstanding balance or the maximum permitted by law, whichever is lower, plus all reasonable expenses and fees of collection. Except as otherwise expressly set forth in these terms and conditions, all fee are non-refundable. If any invoice is thirty (30) days or more overdue, Buyer's entire account(s) with Plex shall become immediately due and payable without further notice or demand. In addition to any other rights and remedies (including the right to terminate Buyer’s order), Plex shall also have the right to suspend Buyer’s order without liability until the entire invoice is paid in full. In addition to all other rights and remedies Plex may have, Buyer hereby grants Plex a purchase money security interest in the equipment until such time as Plex is fully paid for all equipment ordered by Buyer, irrespective of whether any such equipment is in Buyer’s possession or control. Plex shall also have, without limitation, all rights, powers, and remedies available to a secured party under the Uniform Commercial Code and other applicable law. Buyer shall assist and cooperate with Plex in taking the necessary action to perfect and protect Plex's security interest. Upon Buyer’s failure to promptly cooperate and assist Plex, Buyer authorizes Plex to execute in the name of Buyer, any documents and take all actions necessary to grant to Plex the security interest provided in this paragraph and hereby authorizes Plex to execute in the name of Buyer any filings and take all actions necessary to perfect such security interest. No equipment furnished by the Plex shall become a fixture by reason of being attached to any real estate.
REMEDIES OF PLEX:
Upon any default by Buyer, Buyer shall reimburse Plex for all attorney fees and court costs incurred by Plex in connection therewith. Any of the following shall constitute an event of default which shall enable Plex, at its option, to cancel any unexecuted portion of this order and/or to exercise any right or remedy which it may have by law or in equity: (a) the failure of Buyer to perform any term or condition contained herein; (b) any failure of Buyer to give required notice; (c) the insolvency of Buyer or its failure to pay debts as they mature, an assignment by Buyer for benefit of its creditors, the appointment of receiver for Buyer or for the materials covered by this order, or the filing of any petition to adjudicate Buyer bankrupt; (d) dissolution or termination of the existence of Buyer; (e) any failure by Buyer to provide adequate assurance of performance within ten (10) days after a demand by Plex; or (f) if Plex, in good faith, believes that Buyer's prospect of performance including, without limitation, Buyer’s ability to pay Plex’s invoice, under these terms and conditions is impaired. All rights and remedies of Plex herein are in addition to, and shall not exclude, any rights or remedies that Plex may have by law or in equity. If Plex incurs any expense for collection of any overdue account, reasonable collection charges, including reasonable attorneys' fees, will be added to the balance due and Buyer shall promptly pay all such charges.
This transaction shall be governed in all respects by the laws of Michigan, without regard to conflicts of laws principles. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply to this Agreement. The parties irrevocably consent to the exclusive jurisdiction and venue of the state courts in Oakland County, Michigan or federal courts in the Eastern District of Michigan, USA. All actions, regardless of form, arising out of or related to this transaction or the equipment sold hereunder must be brought by Buyer against Plex within one (1) year after the occurrence of the breach or event giving rise to the claim for damages or shall be deemed waived with prejudice by Buyer. The parties waive any right to jury trial in connection with any action or litigation in any way arising out of or related to this transaction.
Plex shall not be liable for any failure, delay in performance, and/or non-performance caused by circumstances beyond its control including, without limitation, acts of God, war, labor difficulties, governmental action, fire, accidents, inability to obtain materials, delays of carriers, contractors, and/or suppliers, or any other cause of any kind whatever beyond the control of Plex. Under no circumstances shall Plex be liable for any special, consequential, incidental, indirect, cover, or liquidated damages, losses, or expense (whether or not based on negligence) arising directly or indirectly from delays or failure to give notice of delay.
WARRANTY DISCLAIMER: BUYER'S SOLE AND EXCLUSIVE WARRANTY, IF ANY, IS THAT PROVIDED TO BUYER BY THE EQUIPMENT MANUFACTURER. PLEX MAKES NO EXPRESSED OR IMPLIED WARRANTIES. PLEX HEREBY DISCLAIMS ALL EXPRESSED OR IMPLIED WARRANTIES, WHETHER IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS EXPRESSLY SET FORTH IN THIS PARAGRAPH, ALL EQUIPMENT AND/OR SERVICES PROVIDED BY PLEX, ITS EMPLOYEES, CONTRACTORS, AND AGENTS, ARE PROVIDED "AS IS," "WHERE IS," AND "WITH ALL FAULTS."LIMITATION OF LIABILITY: UNDER NO CIRCUMSTANCES, AND IN NO EVENT, WILL PLEX BE LIABLE FOR ANY PERSONAL INJURY OR PROPERTY DAMAGE OR ANY OTHER LOSS, DAMAGE, COST OF REPAIRS OR INCIDENTAL, PUNITIVE, SPECIAL, CONSEQUENTIAL, COVER, OR LIQUIDATED DAMAGES OF ANY KIND, WHETHER BASED UPON WARRANTY, CONTRACT, STRICT LIABILITY, TORT OR NEGLIGENCE, OR ANY OTHER CAUSE OF ACTION ARISING IN CONNECTION WITH OR RELATED IN ANY MANNER TO THE DESIGN, MANUFACTURE, MARKETING, PROMOTION, SALE, TRANSPORTATION, DELIVERY, INSTALLATION, USE, MAINTENANCE, AND/OR REPAIR OF ANY EQUIPMENT SOLD BY PLEX. BUYER HEREBY ACKNOWLEDGES AND AGREES THAT, UNDER NO CIRCUMSTANCES AND IN NO EVENT, SHALL PLEX'S TOTAL AGGREGATE LIABILITY, IF ANY, EXCEED THE NET SALES PRICE OF THE DEFECTIVE EQUIPMENT; NO ADDITIONAL ALLOWANCE SHALL BE MADE FOR THE LABOR OR EXPENSE OF REPAIRING OR REPLACING DEFECTIVE EQUIPMENT OR WORKMANSHIP OR DAMAGE RESULTING FROM THE SAME.
RECOMMENDATIONS BY PLEX:
Buyer acknowledges that Plex does not make and specifically negates, renounces and disclaims any representations, warranties and/or guaranties of any kind or character, expressed or implied, with respect to (i) the equipment sold, its use, design, application or operation, merchantability, physical condition or fitness for a particular purpose, (ii) the maintenance or other expenses to be incurred in connection with the equipment, (iii) the engineering, design, fabrication work, or any other work or service (whether gratuitous or for payment) supplied by Plex and/or its agents, contractors, suppliers, and employees, or (iv) the accuracy or reliability of any information, designs, or documents furnished to Buyer. Plex neither assumes nor authorizes any person or entity to assume for it or commit to any other obligation in connection with the sale of its equipment and/or rendering of any services. Any recommendations made by Plex concerning the use or usefulness, design, application, operation, maintenance, and/or repair of the equipment shall not be construed as representations or warranties, expressed or implied. Failure by Plex to make recommendations or give advice to Buyer shall not impose any liability upon Plex.
USE OF EQUIPMENT:
Buyer shall, at its own expense, apply for and obtain any permits and inspections required for the installation and/or use of the equipment. Plex makes no promise or representation that the equipment will conform to any federal, state or local laws, ordinances, regulations, codes, or standards, except as particularly specified and agreed upon in writing by an authorized representative of Plex. Plex's equipment is not for use in or with any nuclear facility unless specifically so stated by Plex in writing.
Plex shall not be responsible for any losses or damages sustained by the Buyer or any other person as a result of improper installation, misapplication, inoperability, use, misuse, and/or abuse of any equipment. Buyer shall defend, indemnify and hold harmless Plex, its officers, directors, employees, agents, and contractors, against any and all loss, damage, claim, suit, liability, judgment or expense (including, without limitation, attorney's fees) arising out of or in connection with any injury, disease, or death of persons (including, without limitation, Buyer's employees, contractors, and/or agents) or damage to or loss of any property or the environment, or violation of any applicable law or regulation resulting from or in connection with the sale, transportation, installation, use, maintenance, and/or repair of the equipment by Buyer or of the information, design, service or other work supplied to Buyer, whether caused by the concurrent and/or contributory negligence of Buyer, Plex, or any of their agents, employees or suppliers. The obligations, indemnities and covenants contained in this paragraph shall survive the consummation or termination of this transaction.
INSPECTION AND ACCEPTANCE:
Claims for damage, shortage, or error in shipping must be reported within one (1) day following delivery to Buyer. Buyer shall have seven (7) days from the date Buyer receives any equipment to inspect such equipment for defects and non-conformance which are not due to damage, shortage, or error in shipping and notify Plex in writing of any defects, non-conformance, or rejection of such equipment. After such seven (7) day period, Buyer shall be deemed to have irrevocably accepted the equipment, if not previously accepted. After such acceptance, Buyer shall have no right to reject the equipment for any reason or revoke acceptance. Buyer hereby agrees that such seven (7) day period is a reasonable amount of time for such inspection and revocation. Buyer shall have no right to order any change or modification to any equipment previously ordered by Buyer or its representatives or cancel any order without Plex's written consent and payment to Plex of all charges, expenses, commissions, and reasonable profits owed to or incurred by Plex. Specially fabricated or ordered items may not be canceled or returned and no refund will be made. The sole and exclusive remedy for merchandise alleged to be defective in workmanship or material will be the repair or replacement of the merchandise subject to the manufacturer's inspection and applicable warranty.
Within thirty (30) days of delivery, Buyer may return any equipment which Plex stocks with no restocking charge if: (i) it is in new condition, suitable for resale in its undamaged original packaging and with all its original parts, and (ii) it has not been used, installed, modified, rebuilt, reconditioned, repaired, altered, or damaged, and (iii) it meets all local, state and federal laws governing the type of equipment that can be sold or put into transit in the state in which the equipment is being returned. Buyer's surplus job returns, and those not meeting (i), (ii) and (iii), above, will be evaluated on an individual basis after Buyer has contacted Plex's authorized representative for prior written permission. Special orders or non-stock items may be returned only if the manufacturer will accept the return and subject to any applicable restocking, handling, or other fee(s) charged by the manufacturer. Except for items Plex stocks which meet (i), (ii) and (iii), above, credit memoranda issued for authorized returns shall be subject to the following deductions: (a) cost of putting items in salable condition; (b) transportation charges, if not prepaid; and (c) handling and restocking charges.
SHIPPING AND DELIVERY:
Plex shall in its discretion select the mode of shipment and the carrier unless specific shipping instructions have been given by Buyer to Plex and accepted by Plex. Plex, in its discretion, may obtain transit insurance for the benefit of Buyer covering the shipment of the equipment. All costs of transportation, handling, and insurance for the shipment of the equipment shall be paid by Plex and promptly reimbursed by Buyer. Unless alternative arrangements have been agreed to by Buyer and Plex, all equipment will be shipped FOB Destination. Risk of loss shall transfer to the Buyer upon tender of goods to Buyer, Buyer's representative, or any common carrier. The cost of any special packing or special handling caused by Buyer's requirements or requests shall be added to the amount of the order. If Buyer causes or requests a shipment delay or if Plex ships or delivers the equipment erroneously as a result of inaccurate, incomplete or misleading information supplied by Buyer or its agent, contractor, or employee, storage and all other additional costs and risks shall be borne solely by Buyer. Claims for equipment damaged or lost in transit should be made by Buyer to the carrier, as Plex's responsibility ceases upon tender of goods to Buyer, Buyer's representative, or any common carrier. Plex will make a good faith effort to complete delivery of the equipment as indicated by Plex in writing, but Plex assumes no responsibility or liability and will accept no back charge for any loss or damage due to delay or inability to deliver, irrespective of whether such loss or damage was made known to Plex.
The amount of any sales, excise or other taxes, if any, applicable to the equipment shall be added to the purchase price and shall be paid by Buyer unless, in a timely manner, Buyer provides Plex with a valid exemption certificate acceptable to the applicable taxing authorities. Any taxes which Plex may be required to pay or collect under any existing or future law, upon or with respect to the sale, purchase, shipping, delivery, storage, processing, use, or consumption of any of the equipment, including taxes upon or measured by the receipts from the sale thereof, shall be the responsibility of Buyer, who shall promptly pay the amount thereof to Plex upon demand.
CONSTRUCTION AND SEVERABILITY:
These terms and conditions of sale shall not be construed against the party preparing them, but shall be construed as if all parties jointly prepared these terms and conditions of sale and any uncertainty or ambiguity shall not be interpreted against any one party. If any provision hereof is held to be illegal, invalid or unenforceable under any present or future laws, such provision shall be fully severable and the terms and conditions herein shall be construed and enforced as if such illegal, invalid or unenforceable provision had never been made a part hereof. The remaining provisions herein shall remain in full force and effect and shall not be affected by such illegal, invalid or unenforceable provisions or by their severance herefrom.
Buyer shall not be entitled to set off any amounts due Buyer against any amount due Plex in connection with this transaction.
Plex's failure to insist upon the strict performance of any term or condition herein shall not be deemed a waiver of any of Plex's rights or remedies hereunder, nor of its right to insist upon the strict performance of the same or any other term herein in the future. No waiver of any term or condition hereunder shall be valid unless in writing and signed by Plex's CFO.
The relationship between the parties is that of independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
This document constitutes the entire, complete, and exclusive agreement between the parties with respect to the subject matter hereof and contains all the agreements and conditions of sale; no course of dealing or usage of the trade shall be applicable unless expressly incorporated herein. The terms and conditions contained herein may not be added to, modified, superseded or otherwise altered except by a written modification signed by Plex and Buyer. All transactions shall be governed solely by the terms and conditions contained herein.
Purchase Order Terms & Conditions
The following terms and conditions, together with such terms as are set forth in the Purchase Order Form Agreement ("Order Form"), along with such plans, specifications or other documents as are incorporated by reference into this document, as amended in any subsequent authorized writing from Plex Systems, Inc. (“Plex”), shall constitute the entire contract (collectively, the "Purchase Order") between Plex and the Supplier listed in the Order Form (“Supplier”). If bid documents, performance specifications, technical product descriptions, and/or other similar descriptive materials submitted by Supplier in connection with the Purchase Order, or Supplier's proposal, have been incorporated by reference, these shall not be deemed to supersede any contrary requirements of Plex, but to the extent that such materials are not inconsistent with Plex's requirements and these terms and conditions, they shall constitute a part of the basis of this Purchase Order. If this Purchase Order is construed as an offer, this offer expressly limits acceptance to the specific terms of this Purchase Offer and written notice of objection to and rejection of any different or additional terms in any response to the offer is hereby given. If this Purchase Order is construed as an acceptance of an offer, such acceptance is limited solely to acceptance of the express terms contained in this Purchase Order. Any Supplier proposal for additional, conflicting, inconsistent, and/or different terms or any attempt by Supplier to vary in any degree any of the terms of this Purchase Offer in Supplier's acceptance is hereby objected to and rejected and must be agreed to in a written amendment to this Purchase Order executed by both parties. Any such Supplier proposal of any additional, conflicting, inconsistent, and/or different terms shall not operate as a counteroffer or rejection of this Purchase Order. If this Purchase Order is construed as a confirmation of an existing contract, the parties agree that this Purchase Order states the exclusive terms of any contract between the parties. This Purchase Order shall be deemed to have been accepted by Supplier upon receipt by Plex of any writing, including a writing transmitted by fax or other means of electronic transmission, indicating acceptance, or by any of the following (whichever occurs first): (i) shipment of the goods ordered under this Purchase Order or any portion thereof, (ii) Supplier’s commencement of any work, (iii) Supplier’s acceptance of payment, or (iv) Supplier’s performance of any services hereunder.
Discount terms are as set forth in the Order Form. If no terms are specified, the net amount shall be payable within thirty (30) days after the later of (i) delivery by Supplier and acceptance by Plex of goods and services or other performance conforming to the terms and conditions of this Purchase Order, and (ii) invoicing in accordance with the terms of the Order Form. Supplier hereby assigns to Plex all rights to refunds of sales and use taxes paid in connection with this Purchase Order and agrees to cooperate with and assist Plex in the processing of any refund claims. Unless expressly otherwise provided in the Order Form, Plex shall not be liable for any shipping, handling, fuel surcharges, insurance, or similar fees.All claims for money due or to become due from Plex shall be subject to deduction and/or set off by the Plex by reason of any counterclaim arising out of this Purchase Order or any other transaction between Plex and Supplier.
If delivery or completion of the agreed upon date(s) cannot be met, Supplier shall immediately inform Plex in writing of any such delay. Such written notice shall not, however, constitute a change to the delivery or completion terms of this Purchase Order unless Plex modifies this Purchase Order in writing. If any item is not received or if any element of the work and/or services is not completed by the date specified, Plex, at its option and without prior notice to Supplier, may either approve a revised date or may cancel this Purchase Order and may obtain such goods, work, and/or services from another source and, in either event, Supplier shall be liable to Plex and shall promptly reimburse Plex for any loss, damage, and/or additional cost directly or indirectly incurred by Plex. Plex’s remedies provided herein shall be cumulative and are in addition to any other rights and remedies available at law or in equity. Supplier's sole remedy for a delay caused by Plex shall be an extension in the time for Supplier's performance equal to the duration of Plex's delay. TIMING OF DELIVERY OF ALL GOODS AND/OR PERFORMANCE OF THE WORK IS OF THE ESSENCE.
4 Improper Performance/Disputes/Governing Law:
In addition to other remedies provided by law, Plex reserves the right to reject any goods or services and/or revoke any previous acceptance and to cancel all or any part of this Purchase Order if Supplier fails to deliver all or any part of the goods or perform any of the work in accordance with the terms and conditions of this Purchase Order. Acceptance of any part of the Purchase Order shall not bind Plex to accept any future shipments of goods and/or provision of any work, nor deprive it of the right to return goods already accepted. The validity, interpretation and performance of these terms and conditions and this Purchase Order shall be governed by the laws of the state of Michigan, without regard to choice of law rules. The parties agree that the sole and exclusive jurisdiction and venue for any dispute, claim, or litigation arising from or relating to this Purchase Order shall be brought in the state courts of Oakland County, Michigan or federal district court in the Eastern District of Michigan and Supplier hereby irrevocably consents to such jurisdiction, unless Plex and Supplier otherwise agree in writing to utilize an alternative dispute resolution process (e.g., binding arbitration).
5. Representations and Warranties:
Supplier expressly represents and warrants to Plex that: (i) it has good title to all goods and services, free from any lien or encumbrance; (ii) all goods and services furnished under this Purchase Order shall conform to the requirements of the specifications and documentation represented by Supplier and to all industry standards, will be new, and will be free from defects in material and workmanshipand to be of the quality, size and dimensions ordered; (iii) all goods and services will conform to any statements made on the containers or labels or advertisements for such goods and services, and that any goods will be adequately contained, packaged, marked, and labeled; (iv) all goods and services furnished hereunder will be merchantable, and will be safe and appropriate for the purpose for which goods and services of that kind are normally used; (v) if Supplier knows, has reason to know, or been informed of the particular purpose for which Plex intends to use the goods and/or services, Supplier warrants that such goods and services will be fit for such particular purpose; (vi) all goods and services furnished and work performed under this Purchase Order are in conformity with all plans, specifications and other data incorporated as part of this Purchase Order and will conform in all respects to samples, examples, and specifications previously shown or disclosed to Plex; (vii) it is and shall remain in compliance with all applicable federal, state and local laws, regulations and standards including, without limitation, those relating to the design, manufacture, testing, labeling, sale, transportation, use, maintenance, and repair of the goods and provision of the services; (viii) all goods and services provided by Supplier do not infringe any patent, copyright, trade secret, or any other intellectual or proprietary right of any third party; (ix) it has sufficient rights, title and interest in and to the goods and services to grant to Plex the rights granted in this Purchase Order; (x) it has not previously granted and will not grant any rights in the goods or services to any third party which are inconsistent with the rights herein granted to Plex herein; (xi) it has full power and authority to enter into this Purchase Order and to carry out its obligations contained herein; and (xii) its execution of this Purchase Order and the provision of the goods and services hereunder do not and will not breach any other agreement or obligation to which it is or was a party. Inspection, testing, acceptance and/or use of any of the goods and/or services furnished hereunder shall not affect Supplier's obligation under this paragraph and such warranties shall survive inspection, test, acceptance, and use of any goods and/or services purchased by Plex. Supplier's warranties shall apply to Plex, its successors, assigns, customers, and users of products and services sold by Plex and to any third party on whose behalf Plex has purchased such goods and/or services. Supplier shall promptly (but in no event more than three (3) business days) replace or correct any defect of any goods or services not conforming to the foregoing warranties, without expense to Plex, when notified of such non-conformity by Plex, provided Plex elects to provide Supplier with the opportunity to do so. In the event of failure of Supplier to correct defects in or replace non-conforming goods or services promptly, Plex, after reasonable notice to Supplier, may make such corrections or replace such goods and services and charge Supplier for the cost incurred by Plex in doing so. The warranties contained in this paragraph are in addition to and not in lieu of any warranties provided by the manufacturer of any goods provided or sold to Plex under this Purchase Order. These express warranties shall not be waived by reason of acceptance or payment by Plex. This Purchase Order incorporates by reference all terms of the Uniform Commercial Code as adopted in Michigan (the "UCC") providing any protection to Plex for goods, including but not limited to all warranty protections (express or implied) and all of Plex's remedies under the UCC. All goods and work shall also be subject to any stricter and/or additional warranties specified in this Purchase Order, offered by the manufacturer of any goods purchased by Plex under this Purchase Order, and/or in other materials incorporated by reference.
6. Price Warranty:
Supplier warrants that the prices for all goods and services sold to Plex under this Purchase Order are not less favorable than those currently extended to any other customer for the same or similar goods and/or services in similar quantities. In the event Supplier reduces its price for any such goods and services within one (1) year of Supplier’s provision of any such good or service to Plex, Supplier shall immediately and automatically reduce the price charged to Plex. Supplier warrants that prices shown in this Purchase Order shall be complete and no additional charges of any type shall be added without Plex's express written consent. Such additional charges include, but are not limited to, shipping, packaging, labeling, custom duties, taxes, storage, insurance, boxing, and/or crating.
7. Delivery/Title/Risk of Loss:
Time is of the essence. If delivery of any item or rendering of any service is not completed by the delivery date set forth in this Purchase Order, Plex shall have the right, without liability and in addition to its other rights and remedies, to terminate this Purchase Order in whole or in part by written notice effective when received by Supplier as to any items not yet shipped or services not yet rendered and to purchase substitute items and/or services from another source and charge Supplier with any additional cost incurred by Plex. Unless the Purchase Order expressly states otherwise, all goods shall be shipped FOB: the "Destination" location designated in the Order Form. Title and risk of loss shall not pass to Plex until the goods purchased in this Purchase Order actually have been received and accepted by Plex at the specified destination location. Until receipt and acceptance by Plex, Supplier assumes full responsibility for packing, crating, marking, transportation, delivery, insurance, and liability for loss and/or damage even if Plex has agreed to pay freight, express, or other transportation charges.Supplier shall provide replacement of any items lost, misplaced, or damaged in transit, at no additional charge, within three (3) business days of receipt of notice from Plex. If, in order to comply with Plex's required delivery date, it becomes necessary for Supplier to ship by a more expensive way than specified in this Purchase Order, any increased transportation costs resulting therefrom shall be paid for by Supplier unless the necessity for such rerouting or expedited handling has been caused by Plex or pre-approved in writing by Plex.
8.Inspection and Testing:
All goods and services ordered under this Purchase Order will be subject to inspection and testing by Plex to the extent practicable and at Plex’s discretion at all times and places, including during the period of manufacture and in any event prior to acceptance. Supplier shall permit access to Supplier's facilities at all reasonable times for inspection of goods by Plex's agents or employees and Supplier will provide all tools, facilities and assistance reasonably necessary for such inspection at no additional cost to Plex. Such goods and services will be subject to final inspection and acceptance by Plex after delivery to Plex. It is expressly agreed that inspections and/or payment prior to delivery will not constitute final acceptance. If the goods and/or services delivered do not meet the specifications or otherwise do not conform to all of the requirements of this Purchase Order, Plex shall have the right to reject such goods and/or services. Goods and services which have been delivered and rejected in whole or in part may, at Plex's option, be returned to Supplier or held for disposition at Supplier's risk and expense.
From and after the date of this Purchase Order, Supplier shall indemnify, defend and hold harmless Plex, its directors, officers, employees, agents, and contractors (other than Supplier) from and against any and all claims, liabilities,damages, allegations, costs, and expenses, including reasonable attorney’s fees, arising from, resulting in any way from, caused by, or related to (and regardless of by whom such claim or liability may be asserted): (i) any allegation, lawsuit or proceeding brought for any claim of infringement of any copyright, patent, trademark, or any other proprietary or intellectual property right, arising out of or related to Supplier’s provision of any goods and/or services under this Purchase Order; (ii) any claim of personal injury (including death) or damage to real or personal property (including lost data), arising from, caused by, or relating to any act, error, omission, or negligence of Supplier, its employee, agent, and/or contractor; (iii) any breach of this Purchase Order by Supplier, its employee, agent, and/or contractor or otherwise that may result directly or indirectly from the use, possession, or ownership of the goods or from the services provided by Supplier pursuant to this Purchase Order; or (iv) any defect in any goods or services purchased under this Purchase Order. Plex shall promptly notify Supplier in writing of the allegation, claim, lawsuit, or proceeding for which Supplier is obligated under this paragraph and, at Supplier’s expense, cooperate and assist as reasonably required. Plex may be represented by and actively participate through its own counsel in any such suit or proceeding if it so desires, and the costs of such representation shall be paid by Supplier. This indemnification shall be in addition to the warranty obligations of Supplier and shall survive the expiration or termination of this Purchase Order for any reason. Supplier shall not settle or compromise any claim or action in a manner that imposes any restrictions or obligations on Plex without Plex's prior written consent. If Plex elects to require that Supplier defend a claim pursuant to this paragraph, and Supplier fails or declines to assume the defense of any such claim within five (5) business days after written notice thereof, Plex may assume the defense of such claim for the account and at the risk of Supplier, and any expenses incurred by Plex as well as any liabilities related thereto shall be conclusively deemed a liability of Supplier. The indemnification rights of the indemnified parties are in addition to all other rights and remedies such indemnified parties may have at law or in equity or otherwise.The indemnification rights shall also be in addition to the warranty obligations of Supplier and shall survive the expiration or termination of this Purchase Order for any reason.
While this Purchase Order is in effect and for a period of six (6) months after Supplier’s final delivery and Plex’s acceptance of all goods and services under this Purchase Order, Supplier, at its own cost and expense, shall obtain and maintain in force the following insurance coverage:
A policy of workers' compensation insurance, in amounts required by law, covering all officers and employees of Supplier who are in any way engaged in or connected with this Purchase Order, and employer's liability insurance in an amount of not less than Five Hundred Thousand Dollars ($500,000). Supplier shall require its agents, sub-suppliers and subcontractors, who are in any way engaged in or connected with this Purchase Order to maintain the same insurance coverage as required herein of Supplier.
A policy of commercial general liability insurance with broad form property damage endorsement, personal injury and products completed operations coverage, providing protection in an amount of not less than Two Million Dollars ($2,000,000) per incident and in the aggregate, with respect to personal injury, death, or damage to property.
If this Purchase Order contemplates the provision of any professional services, a policy of professional liability insurance, including errors and omissions, providing protection of not less than One Million Dollars ($1,000,000) per incident and One Million Dollars ($1,000,000) in the aggregate.
A policy of comprehensive automobile liability insurance covering the operation of all motor vehicles used by Supplier or its agents or contractors in connection with this Purchase Order, providing protection in an amount of not less than One Million Dollars ($1,000,000) combined single limit with respect to personal injury, death, and/or damage to property.
All of insurance policies shall be issued by insurance companies with an AM Best rating of "A" or higher and a financial strength rating of VII or higher, or equivalent ratings provided by a disinterested, generally recognized rating agency, which companies shall be licensed or permitted to conduct business in Michigan. The commercial general liability policy shall name “Plex Systems, Inc.” as an additional insured, and shall be written as primary coverage and not contributing with or in excess of any coverage that Plex may carry. Supplier shall promptly furnish to Plex a current certificate of insurance for each of the policies required above. Insurance coverage(s) provided under this Purchase Order shall not limit or restrict in any way the liability of Supplier arising under or in connection with this Purchase Order. Such insurance shall not be canceled or terminated without thirty (30) days prior written notice to Plex of any cancellation or termination.
No part of this Purchase Order, including, without limitation, any of Supplier’s obligations hereunder, may be assigned, delegated, and/or subcontracted without prior written approval of Plex. To the extent Plex permits any such assignment, delegation, and/or subcontracting, Supplier shall at all times be and remain responsible for all acts, errors, omissions, and negligence of its subcontractors and agents.
12. Termination Without Cause:
Plex, in its sole discretion and without cause, may terminate this Purchase Order, in whole or in part, upon written notice at any time without incurring liability to Supplier for lost revenue or profits, or any other costs or damages.In the event of such termination, Supplier shall immediately stop all work hereunder and shall immediately cause any of its suppliers or subcontractors to cease such work. Supplier shall be paid a reasonable termination charge consisting of a percentage of the purchase price reflecting the unit price of the goods delivered and accepted by Plex or work completed prior to the notice of termination. Supplier shall not be paid for any goods shipped or delivered or work done after receipt of the notice of termination. Supplier shall refund to Plex any unused portion of advanced payments within thirty (30) days of notice of termination. Supplier's warranties and Supplier's liability for defective or non-conforming work or goods as well as Sections 1, 2, 4 through12, and 14 through 19 of these Terms and Conditions shall survive termination of this Purchase Order for any reason and shall remain in full force and effect.
Plex reserves the right, by written notice of default, to cancel this Purchase Order, without any liability to Plex, in the event of any of the following: insolvency of Supplier, the filing of a voluntary petition in bankruptcy by Supplier, the filing of an involuntary petition to have Supplier declared bankrupt, the appointment of a receiver or trustee for Supplier, or the execution by Supplier of an assignment for the benefit of creditors. Additionally, if Supplier fails to perform as specified herein, or if Supplier breaches any of the terms hereof, Plex has the right, without any liability to Plex, upon giving Supplier written notice, to (i) cancel this Purchase Order in whole or in part and Supplier shall be liable to Plex for all damages, losses and liability incurred by Plex directly or indirectly resulting from Supplier's breach, or (ii) obtain the goods and/or services ordered herein from another source with any excess cost incurred by Plex resulting therefrom chargeable to and promptly reimbursable by Supplier to Plex. The remedies provided in this Purchase Order shall be cumulative and in addition to any other remedies provided at law or in equity.
14. Additional Provisions for Work Performed on Site:
The provisions set forth in Paragraphs 14(a) and 14(b) below shall apply to work performed at locations owned, leased, or otherwise controlled by Plex ("Site").
Supplier shall maintain on the Site at all times a sufficient work force to carry out its obligations in a professional, efficient, and timely manner. Supplier shall employ only competent, skilled, reliable, experienced, and honest workers who will work collaboratively with other workers on the Site. All persons furnished by Supplier shall be deemed Supplier's employees, contractors, or agents, and Supplier shall comply with all applicable laws and statutes regarding worker's compensation, employer's liability, unemployment compensation, and/or benefits as well as all other applicable laws relating to or affecting the employment of labor. At Plex's instruction, Supplier shall promptly remove from the Site any employee who, in Plex's opinion, represents a threat to the safety or progress of the project or other persons on the Site, or who has engaged in any improper, unethical, and/or unprofessional conduct including, without limitation, conduct which Plex perceives as constituting harassment of any person.
Supplier shall ensure that federal, state and county of residence criminal background checks are conducted on any person assigned to perform any work at the Site and, subject to and in compliance with applicable law, shall exclude from the Site any dishonest, dangerous, or otherwise unqualified person.
Confidentiality and Privacy Requirements. Plex Supplier shall consider all information furnished by Plex to be confidential and shall not disclose any such information to any other person or entity, or use such information for any purpose other than performing and fulfilling its obligations under this Purchase Order. This paragraph shall apply to all drawings, specifications, and any other documents prepared by Supplier for Plex in connection with this Purchase Order. All specifications, data and other information furnished by Plex or its agents to Supplier in connection with this Purchase Order shall remain the exclusive intellectual property of Plex and shall be treated by Supplier as Plex confidential information and shall not be disclosed or used outside the limitation of this Purchase Order without Plex’s prior written approval. Supplier shall not advertise or publish the fact that Plex has contracted to purchase goods and/or services from Supplier, nor shall any information relating to this Purchase Order be disclosed without Plex's prior written consent. Unless otherwise agreed in writing, no commercial, financial, technical, or any other information disclosed in any manner or at any time by Supplier to Plex shall be deemed proprietary, trade secret, or confidential information and Supplier shall have no rights against Plex with respect thereto except such rights as may exist under patent laws.
16. Resale. Plex is hereby granted the right to resell and/or remarket any goods and/or services purchased under this Purchase Order and Plex will determine the prices at which any such goods and/or services are resold.
17. Limitation of liability
. In no event shall Plex be liable for any anticipated or lost profits or revenue or for any incidental, indirect, special, punitive, or consequential damages. Plex's liability on any claim of any kind for any loss or damage arising out of or in connection with or resulting from this Purchase Order or from its performance or breach thereof shall in no case exceed the price allocable to the specific goods or services or unit thereof, which gives rise to the claim for damages. Any action resulting from any breach on the part of Plex as to the goods and/or services delivered hereunder must be commenced within one year after the cause of action has accrued.
18. Counterparts/Electronic Signatures
. This Purchase Order may be executed and delivered in two or more counterparts, each of which will be deemed an original and all of which together will constitute one (1) and the same instrument. This Purchase Order may be executed and delivered by facsimile, emailed PDF, or electronic signature through DocuSign or another service provider designated by Plex, and the parties agree that such facsimile/electronic signature execution and delivery shall have the same force and effect as delivery of an original document with original signatures, and that each party may use such facsimile/electronic signatures as evidence of the execution and delivery of this Purchase Order by all parties to the same extent that an original signature could be used.
19. Independent Contractors:
The relationship between the parties is that of independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
20. Entire Agreement; Amendments:
Except for the terms and conditions of any written non-disclosure agreement entered into between the parties, which shall remain in full force and effect, this Purchase Order is the complete agreement between the parties hereto concerning the subject matter of this Purchase Order and replaces any prior oral or written communications between the parties. There are no conditions, understandings, agreements, representations, or warranties, expressed or implied, which are not specified herein and no course of dealing or usage of the trade shall be applicable unless expressly incorporated herein. This Purchase Order may be amended, supplemented, or modified only by a writing signed by both parties.
1. Your Experience
1.1 - We are committed to protecting your privacy at Plex Systems.
1.2 - We will not collect any personal information from you that you do not volunteer.
1.3 - We are the sole owner of all information collected on this site.
1.4 - We do not sell, share, or rent this information to others in any way that we have not mentioned in this statement.
3. Third parties
3.1 - Plex Systems may provide third parties with aggregate statistics about our customers, traffic patterns, and related site information. This data reflects site usage patterns gathered during thousands of customer visits to our Web site each month but does not contain behavioral or identifying information about any individual member, unless that member has given us permission to share that information. We may also provide log files and other databases of user information to third parties for analysis, so we can get a better understanding of traffic through our site and thus improve our content offerings. Plex Systems also may use third party companies to provide delivery of e-mail newsletters and other messages over e-mail.
3.2 - Plex Systems uses a third-party advertising company to serve ads when you visit our sites. This company may use information about your visits to our and other web sites in order to provide advertisements about goods and services of interest to you. In addition, we share web site usage information about visitors to our sites with this company for the purpose of managing and targeting advertisements on our sites. Also be aware that we may buy and sell business assets and/or divisions; customer information is generally part of such a sale.
4.1 - We use reasonable precautions to keep the personal information you disclose both in your browsing and your purchases and to only release this information to third parties we believe share our commitment to privacy. However, we are not responsible for any breach of security or for the actions of these parties.
5. Obtaining your consent
5.1 - By using our Web site, you give Plex Systems permission to collect information about the pages served to you as an anonymous user for the purpose of calculating aggregate site statistics. If you register at Plex Systems, you authorize Plex Systems to use information you provide to personalize the information we deliver to you and to use your demographic information when calculating aggregate customer data.
5.2 - Plex Systems may occasionally amend this policy. We suggest that you bookmark this page and check to see if it has changed from time to time.
Last Updated: April 25, 2014
Plex Systems complies with the U.S. - E.U. Safe Harbor framework and the U.S. - Swiss Safe Harbor framework as set forth by the U.S. Department of Commerce regarding the collection, use, and retention of data from the European Union and Switzerland respectively.Plex Systems has certified that it adheres to the U.S - EU and Swiss - EU Safe Harbor Privacy Principles of notice, choice, onward transfer, security, data integrity, access, and enforcement. To learn more about the Safe Harbor program, and to view Plex System's certification, please visit http://www.export.gov/safeharbor/
Plex Systems collects information under the direction of its Customers while on www.plexonline.com. Plex Systems has no direct relationship with the individuals whose personal data it processes. Plex Systems works with its Customers to help them provide notice to their users concerning the purpose for which personal information is collected.
We collect and process the following personal information collected from our Customers:
o Contact Information such as name, Email address, mailing address, phone number
o Employee Information
o Supplier Information
o Unique Identifiers such as user name and password, SSN or Government ID information
We also collect and process the following non-personal information collected from our Customers:
o Information about your business such as company name, company size, business type
o Information about the order or business in order to fulfill the services or transaction
We use this information to:
o Fulfill your service
o Send you requested product or service information
o Respond to customer service requests
o Administer your account
We collect information for our Customers, if you are a customer of one of our Customers and would no longer like to be contacted by one of our Customers that use our service, please contact the Customer that you interact with directly. If you are a Customer and would like to update your account please contact us firstname.lastname@example.org or 248-391-8001.
Service Provider, Sub-Processors/Onward Transfer:
Plex Systems may transfer personal information to companies that help us provide our service. Transfers to subsequent third parties are covered by the provisions in this Policy regarding notice and choice and the service agreements with our Customers.
Access to Data Controlled by our Customers:
Plex Systems has no direct relationship with the individuals whose personal data it processes. An individual who seeks access, or who seeks to correct, amend, or delete inaccurate data should direct his query to the Plex Systems Customer (the data controller). If the Customer requests Plex Systems to remove the data, Plex Systems will respond to their Customer's request within 30 business days.
General Privacy Information:
Third Party Sharing:
We may provide your personal information to companies that provide services to help us with our business activities such as, but not limited to, shipping and credit card processing. These companies are authorized to use your personal information only as necessary to provide these services to us.
We also reserve the right to disclose your personally identifiable information as required by law and when we believe that disclosure is necessary to protect our rights and/or to comply with a judicial proceeding, court order, or similar legal process.
Tracking Technologies (Cookies, Beacons, etc.):
We use session ID cookies to make it easier for you to navigate our site. A session ID cookie expires when you close your browser.
As is true of most Web sites and online services platforms, we gather certain information automatically and store it in log files. This information includes internet protocol (IP) addresses, browser type, internet service provider (ISP), referring/exit pages, operating system, date/time stamp, and clickstream data.
We use this information, which does not identify individual users, to analyze trends, to administer the site, to track users' movements around the site and to gather demographic information about our user base as a whole.
Clear Gifs (Web Beacons):
We employ a software technology called clear gifs (a.k.a. Web Beacons), that help us better manage content on our site by informing us what content is effective. Clear gifs are tiny graphics with a unique identifier, similar in function to cookies, and are used to track the online movements of Web users. In contrast to cookies, which are stored on a user's computer hard drive, clear gifs are embedded invisibly on Web pages and are about the size of the period at the end of this sentence. We do not tie the information gathered by clear gifs to personally identifiable information.
The security of the information we process on behalf of our Customers is important to us.
When you enter sensitive information (such as login credentials) we encrypt the transmission of that information using secure socket layer technology (SSL).
We follow generally accepted standards to protect the personal information submitted to us, both during transmission and once we receive it. No method of transmission over the Internet, or method of electronic storage, is 100% secure, however. Therefore, we cannot guarantee its absolute security. If you have any questions about security on our Web site, you can contact email@example.com or 248-391-8001.
Plex Systems will retain the personal data that we process on our Customerâ€™s behalf as long as needed to provide the services requested. In addition, Plex Systems will retain and use this personal information as necessary to comply with our legal obligations, resolve disputes, and enforce our agreements.
We may update this privacy statement to reflect changes to our information practices. If we make any material changes we will notify you or our Customer by email (sent to the e-mail address specified in your account) or by means of a notice on Plex Manufacturing Cloud prior to the change becoming effective. We encourage you to periodically review this page for the latest information on our privacy practices.
Plex Systems, Inc.
900 Tower Drive
Troy, MI 48098