The terms and conditions set forth below, together with the written information contained on the face of this purchase order ("Order") and all attachments and exhibits attached hereto and all specifications, drawings, notes, instructions, referred to therein (the "Terms") shall apply to the purchase of the products and/or services described in this Order (collectively “Products") and are incorporated herein and are made a part of this Order. Seller may accept this Order either by performance or the sending of an acknowledgement; provided, however, that any additional terms and conditions contained in Sellers offer or counteroffer documents (including any acknowledgment or invoice) shall not apply to this Order unless they are specifically accepted by an individual of Buyer having the title of Vice President or higher ("Buyers Representative") in writing. In the event this Order is deemed to be an acceptance of a Seller quotation (rather than an offer or counteroffer accepted by Seller by performance or acknowledgement), then Buyers acceptance of Sellers quotation is expressly conditioned on Sellers agreement to these Terms. If a purchase agreement (signed by a Buyer Representative) exists between Seller and Buyer with respect to the Products, the terms of such agreement shall prevail over any inconsistent Terms herein. In no event shall Buyers silence in response to any document containing Sellers terms and conditions be construed as an acceptance of any such terms or conditions. The Order is by and between the Seller and the particular Buyer entity set forth on the front of this document, and does not bind any other entity, including any Affiliate of Buyer.
2. PRICE, INVOICES, PAYMENT TERMS, AND DISCOUNTS.
Prices for Products shall be in the currency set forth on the front of this Order, or if no currency is specified thereon, the currency of the country in which Buyer is incorporated. Seller warrants that the prices offered for the Products hereunder are the lowest prices for these or similar Products sold by Seller to other customers, and in the event of any price reduction between the acceptance of this Order and delivery of the Products, Buyer shall be entitled to such reduction. Seller shall submit invoices which include, at a minimum, the following information: Order number, item number, description of item, size of item, quantity of item, unit price, applicable taxes, extended totals, and any other information specified elsewhere herein. A Bill of Lading or express receipt must accompany each invoice. The Product price includes all applicable foreign, federal, state, and local taxes, tariffs, import duties, commissions, and all shipping, freight, transportation, packing and handling charges required to deliver the Product to the delivery point in accordance with Section 3(b); provided, however, that all freight, transportation, duties and taxes (including value added taxes) shall be separately itemized. Payment terms for any valid and non-disputed invoice are net ninety (90) days from the date of receipt of product. In the event Buyer disputes any invoice, it will promptly notify Seller, and the parties shall use their respective efforts to resolve the dispute. Payment of invoices shall be deemed correct unless Seller notifies Buyer of any payment discrepancies within thirty (30) days after receipt of payment. Buyers delay in paying any disputed portion of any invoice shall not constitute a breach or default of these Terms. Buyer may at any time set off any amount owing from Seller or any of its Affiliates to Buyer or any of its Affiliates against any amount payable by Buyer or its Affiliates to Seller or its Affiliates. For the purpose of this Order, the term "Affiliate" of a party shall mean and include any entity which controls (by owning the majority of voting securities of), is controlled by, or is under common control of Buyer or Seller. Time in connection with any discount offered by Seller will be computed from the latest of (i) the scheduled delivery date, (ii) the date of actual delivery, or (iii) the date on which a correct invoice is received; for the purpose of earning the discount, payment will be deemed to have been made on the date of mailing of Buyer's payment.
3. DELIVERY; INCOTERMS; RISK OF LOSS; PACKING AND SHIPMENT; OVERSHIPMENTS.
(a) TIME IS OF THE ESSENCE OF THIS ORDER . The delivery date shall be that which is specified in the Order unless agreed otherwise in writing between Buyer and Seller. Seller shall immediately notify Buyer in the event that Sellers timely performance under this Order is delayed or likely to be delayed, in whole or in part, and Seller shall provide Buyer with all available information regarding the reasons for the delay. Such notice shall not constitute a waiver by Buyer of any of Sellers obligations hereunder. If delivery of the Products is not timely completed, Buyer reserves the right, without liability and in addition to all its other rights and remedies: (1) to terminate this Order by notice effective when received by Seller as to Product not yet shipped, and to purchase substitute Products elsewhere and at Buyers option charge Seller with any loss incurred, (2) to request that Seller, at its expense, ship Product by expedited means and (3) to recover from Seller any damages it incurs, including but not limited to any damages it is required to pay to any third party. Neither partial shipments nor shipments prior to the delivery date shall be permitted unless agreed to in writing by Buyer. Product delivered to Buyer more than three (3) days in advance of the delivery date herein or which are in excess of the ordered quantities may be returned at Sellers expense. (b) Unless otherwise specifically provided on the face of this Order, the Products will be delivered FCA Buyers facility (Incoterms 2010). In the event this Order includes the delivery of equipment which requires installation, Seller shall install such equipment (at Sellers expense) at Buyer's designated site upon request from Buyer. Title and risk in Products shall remain with Seller until they are delivered at the point specified in the Order and transferred to Buyers possession, at which time title and risk in the Products shall transfer to Buyer. (c) Unless otherwise specified in the Order or in another written communication from Buyer to Seller, (i) all Products shall be packed in accordance with good commercial practices; (ii) Seller shall attach a complete packing list to the outside of each packing container; (iii) Seller shall mark all containers or packages with necessary lifting, loading and shipping information; (iv) Seller shall mark all shipments with bar code labels meeting Electronic Industries Association Outer Shipping Container Bar Code label Standard EIA-556-A; (v) Seller shall ensure that all packaging complies with laws on packaging and waste as implemented by the various member states of the European Union, as well as with similar environmental laws in other jurisdictions and shall include all information required by the RoHS, WEEE, or REACH; (vi) Seller shall ship Product in a manner which complies with all laws, including ICC regulations and which is adequate to insure safe arrival of the Product at the destination. (d) Unless otherwise agreed in writing, Seller shall be the exporter of record for Product and technical data. (e) All information held by or reasonably available to Seller regarding any potential hazards known or believed to exist in the transport, handling or use of the Products shall be promptly communicated to Buyer.
(a) In addition to any express or implied warranties, Seller warrants that Products will be (1) new and unused, (2) free from all defects, including defects in workmanship, material, design and manufacture, (3) of merchantable quality and fit for the purposes intended by Buyer, (4) in conformance with any drawings or specifications provided to Seller or any samples furnished by Seller, and all Seller quality requirements, (5) free from infringement of any third party intellectual property, and (6) if services, performed in a professional and workmanlike manner. The foregoing warranties shall (i) survive the delivery and inspection of the Product and acceptance or payment by Buyer, (ii) be in effect for as long as Buyer warrants its product (containing the Product) to its customer, but no longer than five years from delivery, and (iii) run to the benefit of Buyer and its customers. Buyers approval of Sellers materials or design will not relieve Seller of any warranties. (b) In addition to the warranties set forth in (a), in the event Buyer orders Product which it specifies must comply with the RoHS, WEEE, REACH, and/or similar environmental laws and restrictions in other nations, then Seller represents, warrants and certifies that all Product complies with the RoHS, WEEE, REACH, or other specified environmental laws. "RoHS" means EU Directive 2011/65/EC (recast), "WEEE" means EU Directive 2002/96/EC and “REACH” means the EU regulations concerning the Registration, Evaluation, and Authorization of Chemicals. The parties acknowledge that Buyer may specify RoHS, WEEE, REACH, or other environmental compliance in various ways, including but not limited to relying on Sellers published Product specifications or any other statement from Seller stating that the Product complies with the RoHS, WEEE, REACH, or other environmental laws, or by advising the Seller either in a request for quotation, on its Order(s), or otherwise. (c) In addition to any other rights Buyer may have, if Products delivered pursuant to this Order do not meet the foregoing warranties, Buyer shall, at its sole option, have the right to (i) require Seller to correct any defective or nonconforming Product by repair or replacement at no cost to Buyer; (ii) return such defective Product to Seller, at Sellers expense and sole risk, for a credit at the price the Products were originally purchased or (iii) correct the defective or nonconforming Product itself and charge Seller with the cost of such correction. In addition, Seller shall indemnify and hold the Buyer-Indemnified Parties harmless from and against any Claims as set forth in Section 7. In the event Buyer requests a return for replacement, Seller shall (a) provide Buyer with a return material authorization number within 24 hours after Buyers request, (b) replace or rework and ship the nonconforming returned Products within five (5) business days after receipt and (c) shall bear all shipping costs required to effectuate the replacement. (d) Any repaired Product shall be warranted as set forth herein to the same extent and duration as the Product initially furnished. (e) In addition to the foregoing warranties, Seller warrants that the Product, Sellers business (including its manufacturing, operating and hiring processes), and the Product documentation comply with all international, national, federal, state, and local ordinances, rules and regulations (including but not limited to the Fair Labor Act of 1938, as amended, the Occupational Safety and Health Act of 1970, the Toxic Substances Control Act of 1976 and the Transportation Safety Act of 1974, as amended, all regulations of the Food and Drug Administration, the Federal Acquisition Regulations, and any similar law outside of the United States, as such laws have been amended, modified, or implemented (collectively "Laws") and that the manufacture and sale of the Product complies with all Laws. Seller further warrants the accuracy of all Product documentation it provides to Buyer, including but not limited to customs-related documents and MSDS and safety-related documents.
5. INSPECTION AND ACCEPTANCE.
Payment for the Product does not constitute acceptance of the Product and Buyer reserves the right to take an adjustment (by means of a credit memo or otherwise) for errors, shortages, defect in the Products or other failure of Seller to meet the requirements of this Order. Product will only be deemed accepted after it has actually been counted, inspected and tested by Buyer and determined to be in conformance with this Order. Notwithstanding the foregoing, Buyers failure to inspect or test the Product shall not relieve Seller of any of its responsibilities hereunder. In case any Product is not in conformity with the requirements set forth in the Order or these Terms, Buyer will have (in addition to charging Seller for the inspection of the Products) the right to reject it, to require its correction, or to accept it with an adjustment in price. Any Product that has been rejected or required to be corrected must be replaced or corrected by and at the expense of Seller within five business days after notice. If, after being requested by Buyer, Seller fails to timely replace or correct any defective Product or element of service, then Buyer shall have the right (a) to exercise any remedy set forth in Section 4(c) above, (b) to cancel this Order for default, or (c) to require an appropriate reduction in price. Buyer (on behalf of itself and its customer) reserves the right to inspect, at the Sellers facility or at any other location, any or all of the Products and any records relating to the Products.
Buyer shall have the right at any time to suspend performance hereunder, increase or decrease the ordered quantities, change the delivery date of the Product or make changes in drawings, designs, specifications, materials, packaging, place of delivery and/or method of transportation ("Change(s)"). Seller agrees to accept such Changes as though the Changes were included in the Order. If any Changes cause an increase or decrease in the cost, or the time required for performance, Seller shall notify Buyer, and the parties shall agree on an equitable adjustment in the price and/or delivery date, and shall modify the Order in writing. No claim by Seller for such an adjustment will be valid unless asserted in writing within twenty (20) days (or such longer period as agreed to in writing by Buyer Representative) after the date on which Seller received the notification of the Change. Except in the event of a Change, Seller shall not make any changes to the form, fit, function to any Products or any changes to the drawings, designs, specifications, materials, process, packaging, time and place of delivery or method of transportation without Buyers prior written consent.
Seller shall indemnify, defend and hold Buyer, its officers, directors, employees, agents, customers, and affiliates (the “Buyer-Indemnified Parties”) harmless from and against any and all demands, claims, actions, causes of action, proceedings, suits, assessments, losses, damages, liabilities, settlements, judgments, fines, penalties, interest, costs and expenses (including fees and disbursements of counsel and, in the case of breach of warranty, including the internal or external costs of any recall (including shipping costs to and from Buyers customer to Buyer), the costs incurred by Buyer to determine the cause of the failure, the technical support labor costs in handling customer relationships and the costs incurred by Buyer to repair the product which incorporates the Product) of every kind (“Claim”) (i) which Claim alleges that the Product, the use or sale of the Product or the equipment or processes used to manufacture and/or assemble the Product infringe the patent, copyright, trademark, trade secret or other form of intellectual property right belonging to a third party or (2) Seller has engaged in unfair competition as a result of similarity in design, trademark or appearance of the Product.
8. QUALITY AND ETHICS EXPECTATIONS.
The Seller will ensure that its employees are aware of their contribution to product or service conformity; their contribution to product safety; and the importance of ethical behavior.
To that end, the Seller will provide parts on time, defect-free, and to the satisfaction of Buyer’s customers while continually improving all processes and functions within the company.
Also, Seller will aggressively pursue growth and profitability objectives to the benefit of its employees and the longevity of its company, while always keeping ethical standards in the forefront in all its activities.
Further, Seller will:
- Protect the privacy of its Buyers and their intellectual property;
- Deliver value to its Buyers through excellence in workmanship and service on a schedule that meets/exceeds their needs;
- Treat it own suppliers fairly and honestly;
- Record and report accurately all data from inspection and all other business functions; and
- Actively investigate, report, and rectify any improper, unethical, or illegal actions, and report it to the Buyer.