Purchase Order Terms and Conditions

 

This Purchase Order constitutes an offer by Buyer to purchase the Products and/or Services from Provider, each as defined in the Purchase Order, upon the terms and conditions stated herein and is not an acceptance of any offer by Provider to sell. This Purchase Order is not binding on Buyer until Provider accepts it. Provider will be deemed to have accepted this Purchase Order when it (i) indicates its written acceptance on the face hereof or other written confirmation, (ii) delivers any or all of the Products covered by this Purchase Order, or (iii) starts to perform the Services covered by this Purchase Order, whichever occurs first. Buyer may withdraw this Purchase Order at any time prior to acceptance by Provider.

This Purchase Order, together with the documents attached hereto, incorporated herein by reference, or referencing this Purchase Order, shall constitute the final and complete agreement of the parties and may not be modified or rescinded unless agreed to in writing by Buyer’s authorized representative. No terms stated by Provider in its proposal or in accepting or acknowledging this Purchase Order shall be binding and Provider is hereby notified of Buyer’s objection to and rejection of any additional or different terms in Provider’s quotation, acknowledgement, invoice, or other forms. Buyer’s Purchase Order expressly limits acceptance to the terms and conditions contained in this Purchase Order and notice of objection to any different or additional terms in any response is hereby given. If this Purchase Order is construed as an acceptance of an offer, this acceptance is expressly conditioned upon the Buyer’s assent to any different or additional terms contained in this Purchase Order or any attachments or exhibits thereto. If this Purchase Order is construed as a confirmation of an existing non-written contract, the parties agree that this confirmation states the exclusive terms of such contract between the parties. The parties further agree that this Purchase Order, when used by the parties to place orders for Products and/or Services in conjunction with or pursuant to a written contract, shall be construed to supplement the terms of such written contract to the extent that the terms of this Purchase Order are not inconsistent with such written contract. Regardless of its construction, this Purchase Order incorporates by reference all terms of the Uniform Commercial Code providing any protection to Buyer, including, but not limited to, all warranty protection (express or implied) and all of Buyer’s remedies under the Uniform Commercial Code.

 

1. Delivery

Provider’s performance shall be in strict conformance with the delivery and other time provisions specified in this Purchase Order. Buyer’s production schedules and/or other operations are based upon Provider’s assurance of completion of performance or delivery to Buyer by the date specified in this Purchase Order. Time is of the essence. If delivery and/or performance dates cannot be met, Provider shall inform Buyer in writing of Provider’s best possible delivery and/or performance time. If Buyer has not approved the alternate dates, or Provider does not deliver or perform on time, Buyer may cancel this Purchase Order and purchase the Products and/or Services elsewhere and hold Provider liable for any costs or damages incurred, both direct and indirect, resulting from Provider’s late, defective, or unacceptable delivery or performance. Similarly, any losses as a result of a deviation from Buyer’s routing instructions or specific instructions relating to performance will be charged to Provider’s account. Provider shall not ship any Products ahead of schedule unless authorized by Buyer in writing. Buyer may return, at its option, all unauthorized early Product shipments to Provider at Provider’s expense. Payments for early Product shipments shall be postponed until normal maturity after the scheduled delivery date. Provider shall maintain availability of the Products and/or Services purchased under this Purchase Order for at least two (2) years after the delivery of such Product and/or Service. If Provider determines within this period that it will no longer be possible to ensure this availability, Provider must inform Buyer without delay and, if Provider is unable to offer Buyer any other reasonable possibility of supply, Provider will provide Buyer with the opportunity of procuring an all-time requirements of Products and/Services twelve (12) months before production of such Product and/or Service is stopped. Provider shall forward notice of shipment of Products to Buyer within twenty-four hours, and such notice is an express condition to Buyer’s duties under this Purchase Order.

The original Bill of Lading must accompany the invoice and be mailed in accordance with the instructions on the face of this Purchase Order. Complete packing lists must accompany each Product shipment and each shipment must equal exact amounts ordered unless otherwise agreed to in writing. Separate invoices are required for each Purchase Order and for each Product shipment when partial deliveries are made and each invoice shall reference the relevant Purchase Order number.

2. Risk of Loss

Risk of loss or damage shall be borne by Provider until Product shipment reaches the destination indicated on the face of this Purchase Order irrespective of when title passes to Buyer.

3. Rejection and Revocation of Acceptance

Buyer shall have a reasonable opportunity to inspect Products and/or Services and reject them if they fail to conform to the requirements of this Purchase Order, and to revoke its acceptance of them when appropriate. With regard to Products that are rejected or for which acceptance has been revoked, Buyer, at its option and at the expense and risk of Provider, may return such Products to Provider or store them until Provider provides instructions for disposal. Rejected Products and/or Services are not to be replaced without written authorization from Buyer, and Provider shall reimburse Buyer for any payment made by Buyer with respect to such rejected Products and/or Services. Provider will permit Buyer and its representatives to enter Provider’s facilities at reasonable times to inspect such facilities and any goods, inventories, work-in-process, materials, machinery, equipment, tooling, fixtures, gauges and other items and processes related to Provider performance of this Purchase Order in relation to the Products and/or Services. No such inspection by Buyer will constitute acceptance by Buyer of any work-in-process or finished Products and/or Services or otherwise affect the Buyer’s rights under this Purchase Order. Payment for Products and/or Services without reasonable opportunity to inspect the same shall not constitute acceptance.

4. Changes

Buyer may direct Provider to make changes in the Products and/or Services ordered including, without limitation, reasonable changes to quantities, method of shipping or packing, place of delivery or delivery dates, or changes in the requirements of the drawings, specifications, or instructions. Provider shall promptly review such changes and within five (5) days inform Buyer of any change in Provider’s cost of performance or delay in delivery. Upon mutual agreement as to any price or delivery change, Buyer shall issue a written change order. If the parties are unable to agree upon the amount to the adjustment, acting reasonably and in good faith, Buyer may without any liability terminate this Purchase Order as to all affected Products and/or Services. In the event Provider shall fail to comply with this procedure, Provider shall be deemed to have waived all claims for increased cost or extension of time of performance.

5. Prices; Payment

Provider’s prices shall not be higher than last quoted or charged to Buyer or stated on this Purchase Order unless otherwise agreed to in writing. No charges by Provider will be allowed for transportation, boxing, crating, or other packaging unless agreed to herein. Standard payment terms are net ninety (90) days unless otherwise stated on the Purchase Order. Time for payment and the period for any discount privilege shall not begin to run until both Provider’s invoice and Products and/or Services have been received. Buyer shall not be obliged to pay for Products upon their delivery, but shall have the right to make payment for Products delivered in the normal course of its business and any payment made for Products delivered or Services performed shall be without prejudice in the event of any defect in the Products and/or Services or breach of contract, whether known before or after payment. Buyer shall also have the option to withhold payment for Products and/or Services found upon inspection to be defective or for Provider’s breach of contract.

6. Taxes

The price quoted in this Purchase Order includes an allowance for all federal, State, and local taxes levied by any Governmental Authority which Provider is required to collect and pay with respect to production, sale, or shipment of the Products and/or performance of the Services. In case of new taxes or the reduction of tax rates, Buyer should be informed of such changes, and this Purchase Order price shall be adjusted accordingly.

Provider agrees to comply with all applicable law with respect to compensation paid to its employees and also with respect to its performance of this Purchase Order and assumes exclusive liability for filing reports and making payment of all taxes or contributions as required by such applicable law.

7. Representations and Warranties

General. With respect to all Products to be delivered under this Purchase Order, Provider represents and warrants that all Products (i) sold hereunder shall be free and clear of all liens, encumbrances and/or colorable claims, (ii) shall be of merchantable quality, free from defects in material, design and workmanship and fit for the particular purposes intended, (iii) shall conform to all requirements of this Purchase Order, including without limitation, all specifications, samples, drawings and plans, if any, (iv) are not articles, which cannot be legally transported or sold under the provisions of any applicable law and are not misbranded within the meaning of any federal, state or local law, when bearing labels affixed by Provider, and (v) will not infringe or misappropriate the intellectual property, proprietary or other property right of any third party. With respect to Services to be performed under this Purchase Order, Provider represents and warrants that (i) the Services shall be performed in conformity with the highest industry standards practiced by professional firms in performing work of a similar nature at the time the Services herein are performed and in the same place as the services hereunder are provided, (ii) Provider shall use its best efforts in the performance of the Services and its other obligations hereunder, (iii) the Services will not infringe or misappropriate the intellectual property, proprietary or other property right of any third party and (iv) any Deliverables will be free from any lien, encumbrance or third party claim. The warranties in this paragraph shall survive any inspection, delivery, acceptance, payment or use by Buyer or its customers of the Products or Services and shall run to Buyer, its successors, assigns, customers, and users. If a defect is discovered after further processing, use or delivery of Products and/or Services despite compliance with the provisions above, Provider shall be obliged to bear all costs in connection with the return, exchange, or correction of such defective Products and/or Services. The costs include the costs of inspection, transportation, labor, and material.

Compliance with Applicable Law. Provider at all times shall comply with all applicable law in the performance of this Purchase Order. Without limiting the foregoing, Provider specifically acknowledges applicability of the additional specific representations and warranties set forth in Exhibit A to this Purchase Order.

Compliance with the Supplier Code of Conduct:

1. Provider is expected to conduct business with integrity, mutual respect, and to uphold the highest standards of ethics and behavior in every aspect of their businesses, including relationships, practices, sourcing, and operations.
2. Provider shall develop, implement, and maintain environmentally responsible business practices, such as seeking ways to conserve natural resources and energy, reduce waste and the use of hazardous substances, and minimize adverse impacts on the environment.
3. Provider will not engage in discrimination, harassment, intimidation, violence, or other adverse actions to employees based on race, color, age, gender, sexual orientation, gender identity and expression, ethnicity or national origin, disability, pregnancy, religion, political affiliation, union membership, covered veteran status, protected genetic information, marital status or any other basis prohibited by law including in hiring and employment practices such as wages, promotions, rewards, and access to training.
4. Provider will provide clean, healthy, and safe working environments for their personnel that meet or exceed legal standards. Provider will identify, assess, and mitigate worker potential for exposure to all health and safety hazards including eliminating the hazard, substituting processes or materials, controlling through proper design, implementing engineering and administrative controls, preventative maintenance, and safe work procedures Provider will have safety procedures for their employees and tracking tools that drive to a goal of zero workplace safety incidents.
5. Provider will not tolerate corruption, bribery, money laundering, embezzlement, extortion, or fraud in any form.
6. Provider will respect intellectual property rights.
7. Provider will protect the reasonable privacy expectations of personal information of everyone they do business with, including suppliers, customers, consumers, and employees.
8. Provider shall establish and maintain a management system that identifies and mitigates operational risks, and facilitates continuous improvement and prompt corrective action. The management system must be designed to ensure ongoing compliance with applicable laws, regulations, requirements related to its operations and products.
9. Provider will have a process for communicating clear and accurate information about their sub-suppliers’ performance, practices, and expectations to their workers, other suppliers, and customers

Licenses and Permits. Provider shall secure and maintain any and all required permits, consents and authorizations required to provide Products and/or Services under this Purchase Order.

8. Confidentiality

All information or data furnished by Buyer or its affiliates to Provider, orally, electronically or in writing, including but not limited to drawings, plans, specifications or other documents, data, or information (collectively, “Confidential Information”), shall be treated as confidential by Provider. Provider shall not make any use of Confidential Information except in performance of this Purchase Order. The only persons from Provider who are authorized to access Confidential Information shall be the persons who need to know such Confidential Information in order to provide the Products and/or Services to Buyer and who are bound by obligations of confidentiality substantially similar to those under this Purchase Order. Provider shall not disclose the Confidential Information to anyone before or after performance of this Purchase Order without the written consent of Buyer. All Confidential Information shall be returned to Buyer or destroyed upon Buyer’s request. Provider shall immediately notify Buyer of any unauthorized disclosure of Confidential Information. Provider will comply with all applicable law in regard to privacy, protection, and confidentiality of Confidential Information. In the event that Provider breaches this Section, damages may not provide an adequate remedy for Buyer. Therefore, Provider acknowledges that, in the event of a breach or threat of breach of this Section, Buyer may seek injunctive relief, in addition to any other relief available at law or in equity.

9. Insurance

The work to be performed under this Purchase Order will be performed entirely at Provider’s risk, and Provider assumes all responsibility for the condition of tools and equipment used in the performance of this Purchase Order. The Provider warrants and represents that, at its own expense, it has or shall obtain insurance of the following types: Commercial General Liability, on an occurrence coverage form basis, including coverage for Products/Completed Operations, Blanket Contractual, and Broad Form Property Damage; Automobile Liability covering all owned, non-owned and hired vehicles; Workers Compensation as required by Applicable Law; and, if handling any Personal Data (defined below) pursuant to this Purchase Order, Cyber Liability. Employers Liability Deductible amounts under the foregoing policies shall be paid by Provider. Provider shall obtain a waiver of its insurer’s right of subrogation against Buyer and other providers working at the site, and Provider shall name Buyer as an additional insured on its Commercial General Liability and Automobile Liability policies. It is expressly understood that Buyer does not, in any way, represent that the amount of insurance obtained by Provider is sufficient or adequate to protect Provider’s interests or liability.

10. Indemnity and Limitation of Liability

Scope of Indemnity. Provider shall, at its own expense, defend, indemnify and hold harmless Buyer, its successors and assigns, and its and their affiliates, employees, officers, directors and customers, against any and all claims, losses, demands, damages, costs, expenses or money judgments (including reasonable attorneys’ fees), injuries (including sickness, disease or death), liabilities and legal proceedings, arising out of or in connection with (i) the Products supplied and/or Services performed hereunder, (ii) the acts or omissions of Provider or any of its officers, directors, managers, agents, employees, representatives, supervisors, successors, assigns, subcontractors or anyone acting on any of their behalf, arising from or related to the performance or non-performance of Provider’s obligations under this Purchase Order, (iii) any representation or warranty made or given by Provider, (iv) any claim by any party that the Products or Services furnished by Provider infringe any third party s intellectual property rights, (v) any assertion that Buyer should be deemed the “employer” or “joint employer” of any individual performing under this Purchase Order, and (vi) any claim by a taxing entity that Buyer and/or its affiliates are responsible for Provider’s tax obligations. Buyer shall notify Provider promptly of the institution of any such claim or suit and Provider may conduct the defense of it or settlement negotiations, provided that no settlement will be agreed to without Buyer’s prior written consent, unless the sole relief is monetary damages and there is no admission of liability attributable to Buyer. Buyer reserves the right to compromise or settle its own liability any time upon releasing Provider from its obligations under this paragraph. If Buyer is enjoined from using equipment it leased or purchased, Provider agrees, at Buyer’s election, but without expense to Buyer, to remove said equipment and immediately terminate the lease or purchase it from Buyer at the original purchase price. Provider’s obligation to defend Buyer and to hold it harmless shall survive any resale of equipment or termination of lease of equipment under this paragraph.

Personal Injury or Death. THIS INDEMNITY PROVISION INCLUDES, BUT IS NOT LIMITED TO, CLAIMS FOR, ON ACCOUNT OF, OR ARISING FROM PERSONAL INJURIES OR DEATH ACTUALLY OR ALLEGEDLY SUSTAINED BY EMPLOYEES OF PROVIDER OR ITS SUBCONTRACTORS OR OTHER ENTITIES ACTING ON PROVIDER’S BEHALF. PROVIDER HEREBY EXPRESSLY WAIVES, FOR PURPOSES OF THIS INDEMNITY PROVISION, ANY IMMUNITY IT MAY HAVE UNDER ANY WORKER’S COMPENSATION OR SIMILAR LAWS FROM LIABILITY FOR SUCH PERSONAL INJURY CLAIMS BROUGHT BY BUYER PURSUANT TO THIS INDEMNITY; PROVIDED HOWEVER THAT SUCH WAIVER SHALL NOT APPLY TO CLAIMS ASSERTED BY PROVIDER’S EMPLOYEES AGAINST PROVIDER. PROVIDER SHALL REQUIRE ALL OF ITS SUBCONTRACTORS AND OTHER ENTITIES ACTING ON ITS BEHALF IN CONNECTION WITH, ARISING FROM OR RELATED TO THE PERFORMANCE OF OBLIGATIONS UNDER THIS PURCHASE ORDER, TO ENTER INTO A VALID AGREEMENT TO SIMILARLY WAIVE ANY IMMUNITY EACH OF THEM MAY HAVE UNDER ANY WORKER’S COMPENSATION OR SIMILAR LAWS FROM LIABILITY FOR SUCH PERSONAL INJURY OR DEATH CLAIMS BROUGHT BY BUYER PURSUANT TO THIS INDEMNITY.

Limitation of Liability. Buyer’s liability for breach of this Purchase Order shall not exceed the difference between the resale price of any materials or work in process, sold in good faith and in a commercially reasonable manner and the price paid by Buyer for such materials or work in process, less expenses and costs saved in consequence of Buyer’s breach. Buyer shall not be liable for any indirect, incidental, special or consequential damages, including but not limited to, Provider’s loss of actual or anticipated profits arising out of, or arising from, this Purchase Order or from the performance, suspension, termination, or breach hereof. Provider’s remedies contained herein are not optional but shall be Provider’s exclusive remedies.

11. Suspension or Termination

Termination for Cause. Buyer may suspend or terminate this Purchase Order, in whole or in part, immediately if Products or Services furnished hereunder do not strictly conform to specifications or instructions of Buyer, or if Provider is in material breach of any of the terms hereof, including without limitation, its representations and warranties.

Termination for Convenience. Buyer, for its convenience, shall have the right to immediately suspend or terminate Provider’s work hereunder, or any part thereof, including delivery, upon notice to Provider. Provider shall promptly comply with Buyer’s instructions to minimize any cost to Buyer.

Bankruptcy or Insolvency. Buyer may cancel this Purchase Order without any further liability to Provider, its successors, or assigns, if Provider becomes insolvent, is adjudicated bankrupt or has a voluntary or involuntary petition of bankruptcy filed against it.

Effect of Termination. Buyer will notify Provider of the termination of the Purchase Order and Provider shall immediately stop all work on the Purchase Order. Buyer may provide a verbal notice to terminate which may be immediately confirmed in writing. In the event of termination or suspension, Provider shall be entitled to recover only its uncompensated actual direct costs incurred prior to the date of Buyer’s termination, plus those actual direct costs arising from Buyer’s termination, so long as Provider furnishes to Buyer a complete termination cost analysis substantiating all costs claimed owing and in no event shall the total price paid by the Buyer exceed the price(s) specified in this Purchase Order with respect to the portion of the Products and/or Services that are relevant to the claim. Any cost claimed by Provider under this Section shall be subject to the audit and approval of Buyer. Upon termination, any partially completed Products or Deliverables shall become the property of Buyer in their then state of completion. In the event that any of Services are not fully performed by Provider, whether as a result of termination or otherwise, Provider shall only be compensated for those Services actually performed. Buyer’s payments upon suspension or termination under this paragraph will be in full satisfaction of all claims that Provider may have against Buyer.

12. Intellectual Property

Except as provided below, upon full and final payment to Provider under this Purchase Order, any intellectual property related to Products and/or Services from Provider (the “Deliverables”) will become the property of Buyer, and to the extent necessary, Provider thereby assigns all right, title, and interest in and to the Deliverables to Buyer. Provider agrees to execute and deliver any and all paperwork necessary to reflect Buyer’s interest in the Deliverables. To the extent that any intellectual property right owned by Provider relates to or is incorporated in any of the Deliverables, Provider hereby grants Buyer, upon full and final payment to Provider, a worldwide, perpetual, royalty-free, fully paid-up, non-exclusive license to use such intellectual property right for its business purposes. Provider further agrees that any invention or discovery, whether patentable or not, made or conceived by its employees or contractors assigned to provide services hereunder, which relates to the business of Buyer, shall be the property of Buyer, as shall any invention made or conceived by any employee or contractor of Provider which is at least partially based on Buyer Confidential Information, as that term is defined in this Purchase Order. All materials developed by Provider, its employees, or contractors pursuant to this Purchase Order, in any form, shall be considered works for hire and all rights to such materials, including the copyright, shall belong to Buyer, survive inspection, delivery, acceptance, payment or use and shall remain property of Buyer, its successors and/or assignors.

13. Responsibility for Buyer Property

All material, including tools or machines, furnished or specifically paid for by Buyer, shall be (i) the property of Buyer, (ii) subject to removal at all times without additional cost upon demand by Buyer, (iii) used only in filling orders from Buyer and/or its affiliates, (iv) kept separate from other materials or tools, (v) clearly identified as the property of Buyer, (vi) insured by Provider with loss payable to Buyer, (vii) kept confidential, and (viii) at the discretion of Buyer, returned to Buyer at the termination of this Purchase Order. Provider assumes liability for all loss or damage, excepting normal wear and tear, to such materials and agrees to supply detailed statements on the material as requested by Buyer.

14. Country of Origin; Certificates

All Products will be marked conspicuously, legibly, and permanently in English with the country of origin of the Products and its components, as such is determined and required by Applicable Law. Improper or incomplete markings will cause all expenses and penalties (including legal fees) incurred by Buyer to be charged back to the Provider and/or offset against other amounts owed to Provider. Repetitive failure to properly mark Products will constitute a breach hereof and may result in Buyer issuing immediate termination of this Purchase Order.

When applicable, Provider agrees to provide a valid Free Trade Agreement (FTA) Certificate (including product name, country of origin and harmonized tariff system number), or, in the alternative, a statement that the product does not qualify for a given FTA. In the case of imported Products, and if applicable, Provider agrees to provide a Certificate of Delivery.

15. Miscellaneous

Force Majeure. No liability shall result from delay in performance, or non-performance, caused by circumstances beyond the reasonable control and without the fault or negligence of the party affected, including, but not limited to, any breach or nonperformance of this Agreement by the other Party; war, invasion, or hostilities (whether war is declared or not); terrorist threats or acts, riots, civil unrest; acts of God; acts of government; pandemics or epidemics; national or regional emergency; telecommunication breakdowns, power outages or shortages; lack of warehouse or storage space; delays in transportation, embargoes or blockades in effect on or after the date of this Agreement; strikes, labor stoppages or slowdowns, and other delays in delivery or inability of suppliers to obtain and deliver adequate or suitable materials; and other events beyond the control of either Party. The curing of any delay in performance or nonperformance as a result of the causes described in the foregoing sentence shall be prosecuted with due diligence by the affected party and shall include reasonable updates as to the status of such condition and its expected impact on the ability to perform under this Purchase Order. At Buyer’s option, quantities so affected by the causes described in the first sentence of this paragraph may be eliminated from this Purchase Order without liability, but this Purchase Order shall remain otherwise unaffected.

Relationship of Parties. Provider is an independent contractor for all purposes, without express or implied authority to bind to bind Buyer by contract or otherwise. Neither Provider nor its employees, agents or subcontractors are employees or agents of Buyer, and are therefore not entitled to any employee benefits of Buyer, including but not limited to, any type of insurance.

Safety and Site Requirements. Provider or its subcontractors, employees, agents, and guests of any of them shall at all times comply with all safety and security regulations in effect from time to time at Buyer’s site or as applicable away from Buyer’s site.

Assignment; Subcontracting. This Purchase Order shall not be assigned by Provider without Buyer’s prior written consent. Provider shall not subcontract all or any part of its performance of this Purchase Order to any other party without Buyer’s prior written consent. No assignment or subcontracting by Provider, with or without Buyer’s consent, shall relieve Provider of any obligations under this Purchase Order. Buyer reserves the right to assign this Purchase Order without the prior written consent of the Provider.

Publicity. Neither party shall use in any manner, directly or indirectly, or refer to the other party’s name, including any proprietary logos, in any advertisements, sales promotions, press releases or releases to professional or trade publications, without the other party’s prior express written approval.

Governing Law. The validity, interpretation, and performance of this Purchase Order shall be governed by the Applicable Laws of the laws of the state where the Buyer is located without regard to its conflicts of laws principles and Provider agrees to the exclusive jurisdiction of the state and federal courts located in the state where the Buyer is located.

Waiver. Buyer’s waiver of any breach by Provider of any of the provisions of this Purchase Order shall not constitute a waiver of any other breach of the same or any other provision. Buyer’s rights and remedies under any provision of this Purchase Order shall be in addition to, and not in substitution or limitation of, any other rights or remedies available to Buyer under Applicable Law.

Headings and Severability. Any headings are inserted solely for convenience of reference, shall not constitute a part of this Purchase Order, and shall not otherwise affect the meanings, content, effect, or construction of this Purchase Order. In the event that any provision contained herein is held to be invalid or unlawful, such provision shall be severable from the remaining provisions of this Purchase Order, which shall remain in full force and effect.