1. General.
This Purchase Order, together with its Terms and Conditions and any applicable written agreements between BUYER and SELLER (including any Confidentiality Agreement, Quality Agreement, and/or Assured Supply Program Agreement and including all specified goods and services details, quantities, pricing, due dates, and delivery requirements), constitutes the complete and final agreement of BUYER and SELLER and may not be added to, modified, superseded, or altered except in a written instrument signed by BUYER. Any additional or contrary terms and conditions contained in any form not specifically accepted in writing by BUYER are hereby rejected. No waiver of any provision herein shall constitute a waiver of any other provision (whether or not similar) nor shall such waiver constitute a continuing waiver unless otherwise expressly provided in writing within ten (10) days of receipt of this Purchase Order. Shipment, delivery, or other tender of performance by SELLER shall be taken as SELLER’s acceptance of these terms and conditions. In the event of a conflict between these Terms and Conditions and a separate written agreement, the provisions of such separate agreement will prevail.
2. Delivery, Packaging and Shipment.
SELLER shall deliver goods Delivered Duty Paid (Incoterms 2020) at the delivery location specified on the Purchase Order. SELLER shall deliver goods and render services on the date(s) specified in the agreement. Deliveries earlier than five (5) business days before the due date may be rejected at SELLER’s sole expense. No charge will be paid by BUYER for packing, boxing, handling, or cartage. Loss of or damage to any goods not packed in such a manner as to ensure proper protection to same shall be borne by SELLER. All cartons must be clearly labeled with the ship date, SELLERs name, Purchase order number and line item, BUYER’s part number (including revision level), part description, carton number related to cartons shipped, quantity per container, and unit of measure. Every shipment must contain a packing slip and contain the same information as the carton label. The quantity of goods indicated on the face hereof must not be exceeded without written approval of BUYER. If SELLER’s deliveries fail to meet schedule, BUYER, without limiting its other rights and remedies, may either direct expedited routing or charge excess costs incurred thereby to SELLER or cancel all or part of this order in accordance with the Cancellation or Termination provision hereof.
3. Inspection.
Payment for goods delivered hereunder shall not constitute acceptance thereof. BUYER shall have the right to inspect such goods and to reject any or all of said goods if, in BUYER’s judgment, they are defective. At BUYER’s option, inspection may be performed on a statistical sampling basis. If defects are revealed in such sampling, BUYER may elect, in its discretion, either to reject the entire shipment based on such sampling or to inspect the entire shipment. Goods rejected as defective may be returned to the SELLER for full credit or replacement, at BUYER’s option, and, in addition to BUYER’s other rights, BUYER may charge the SELLER all expenses of unpacking, examining, repacking, and reshipping such goods. Replacement goods shall be sent freight prepaid at SELLER’s expense, and SELLER shall use expedited delivery if required by BUYER. In the event that BUYER receives goods whose defects or nonconformities are not apparent on initial examination, BUYER may subsequently reject such goods within a reasonable period of time after such defects or nonconformities become apparent. The facilities at which goods subject to this Purchase Order are manufactured shall be subject to inspection and approval by BUYER from time to time. SELLER shall provide all reasonable facilities and assistance for the safety and convenience of the inspectors in the performance of their duties. If any goods subject to this Purchase Order or any components thereof, are to be manufactured by subcontractor(s), SELLER shall require such subcontractors to comply with this provision.
4. Price:
The price shown on the face of this order is the total amount BUYER will pay for the goods. SELLER shall not add additional amounts for taxes, packing, shipping, or anything else unless specifically agreed to by BUYER. If there is no price stated on the front, the price shall be deemed to be the price last quoted to BUYER or the prevailing market price, whichever is lower. SELLER warrants that the price for goods sold to BUYER under this Purchase Order is not greater than the price for comparable goods sold in comparable quantities to any other purchaser.
5. Meet or Release.
If during the term of this agreement, BUYER can purchase goods or services of like quality from another supplier at a total delivered cost that is lower than the total delivered cost of the goods or services purchased hereunder, BUYER may notify SELLER of such total delivered cost and SELLER shall have the opportunity to price the goods or services purchased hereunder on such a basis as to result in the same total delivered cost to BUYER within ten (10) calendar days of such notice.
6. Changes.
From time to time, BUYER may revise, supplement, or otherwise amend the specifications, quantities, quality, or delivery requirements of the goods or services. Such changes shall become effective after SELLER’s receipt of such change. If such change is made less than thirty (30) calendar days before the due date applicable to the subject goods or services, SELLER may object, and the parties shall promptly and in good faith attempt to resolve the objection. If the objection cannot be resolved, then BUYER, in its sole discretion may (i) purchase the goods or services from another source, in which case BUYER’s obligations shall be reduced accordingly; or (ii) terminate this Purchase Order and any related agreement with SELLER without penalty, liability, or further obligation.
7. Cancellation or Termination:
BUYER reserves the right to cancel or suspend all or, from time to time, any undelivered or unexecuted portion of this order (a) for cause, if SELLER fails to make any delivery or to perform any work as scheduled or breaches any of the other terms of this Purchase Order and (b) without cause upon written notice to SELLER. Upon cancellation or suspension without cause, BUYER shall reimburse SELLER for expenses (which shall not include lost profits) related to the affected portion(s) of the order, provided that such amount shall not exceed the less of (i) a pro rata portion of the contract price or (ii) the cost of finished goods to be delivered within thirty (30) days after such cancellation or suspension, thirty (30) days of work in progress, and thirty (30) days of raw materials that SELLER demonstrates cannot be diverted to other uses. The foregoing states BUYER’s entire liability and SELLER’s exclusive remedy for any cancellation or suspension of all or any part of this order. Any claim by SELLER under this paragraph must be asserted in writing within 30 days after BUYER’s notice of cancellation or suspension and the amount of such claim must be stated in detail within thirty (30) days thereafter.
8. Warranty.
SELLER expressly warrants that all goods and services, and the production, delivery, transportation, and performance thereof, shall: (a) conform to the drawings, samples, or other description furnished by BUYER to SELLER hereunder, or, if not ordered to specifications, that they shall be merchantable and fit and sufficient for the purpose intended; (b) comply with all applicable state, federal, provincial, local, and international laws and regulations; (c) be free from defects of material, workmanship, and design (unless of BUYER’s design); (d) be of the best quality or of such quality expressly specified in the agreement; and (e) do not infringe or otherwise violate any patent, copyright, trademark, trade secret, or other intellectual property right. These warranties shall survive acceptance of the goods or services and are in addition to any additional warranties given to BUYER by SELLER. SELLER further warrants that it is and shall at all times be fully compliant with all applicable state, federal, provincial, local, and international laws regulations and orders, as well as applicable industry standards. Without limiting the foregoing, SELLER further warrants that it is and shall at all times be fully compliant with all import and export laws applicable to SELLER and the goods and/or services provided hereunder, including but not limited to the United States Export Administration Regulations. None of the remedies available to BUYER for a breach of any of the foregoing warranties may be limited except to the extent and in the manner agreed to by BUYER in a separate agreement specifically designating such limitation and signed by an authorized representative of the BUYER. BUYER’s inspection and/or acceptance of and/or payment for any goods or services shall not constitute a waiver by it of any warranties.
a. Supplier represents and warrants to BUYER that the goods being sold hereunder are in full compliance with all applicable (i) United States laws and regulations relating to the hazardous substances and materials (as defined by the United State Environmental Protection Agency); and (ii) environmental regulations and Directives including but not limited to RoHS and REACH and agrees to furnish evidence of compliance upon request by BUYER.
9. Conflict Minerals.
(a) SELLER recognizes, consistent with the public policy underlying enactment of the Conflict Minerals provision (Section 1502) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Act”), the significant legal and non-legal risks associated with sourcing tin, tantalum, tungsten and gold (the “Conflict Minerals”) from the Democratic Republic of the Congo and adjoining countries (“DRC countries”). Accordingly, SELLER commits to comply with Section 1502 of the Act and its implementing regulations; to the extent SELLER is not a “Registrant” as defined in the Act, SELLER shall comply with Section 1502 of the Act and its implementing regulations except for the filing requirements. In particular, SELLER commits to have in place a supply chain policy and processes to undertake: (i) a reasonable inquiry into the country of origin of Conflict Minerals incorporated into products it provides BUYER; (ii) due diligence of its supply chain, following a nationally or internationally recognized due diligence framework, as necessary, to determine if Conflict Minerals sourced from the DRC countries directly or indirectly support unlawful conflict there, and (iii) risk assessment and mitigation actions necessary to implement the country of origin inquiry and due diligence procedures. SELLER shall take all other measures as are necessary to comply with the Section 1502 of the Act and its implementing regulations, including any amendments thereto.(b) SELLER shall, no later than thirty (30) days following request by BUYER, complete and provide to BUYER a single and comprehensive Conflict Minerals Reporting Template to be provided by BUYER. SELLER shall perform appropriate due diligence on its supply chain in order to fulfill the reporting obligations of this section.
10. Counterfeit Goods:
“Counterfeit Goods” shall mean any goods delivered to BUYER (including any separately identifiable parts or components thereof) that do not comply in all respects with the BUYER’s specifications and/or contain false or misleading markings or supporting documentation purporting to be those of the BUYER. SELLER shall have in place a Counterfeit Goods prevention plan satisfactory to the needs and requirements of BUYER and in no case less stringent than accepted industry practices. SELLER shall not provide any Counterfeit Goods to BUYER. Notwithstanding and additional to any remedy available to BUYER elsewhere in this Purchase Order or at law, in the event SELLER provides Counterfeit Goods to BUYER, it shall immediately provide conforming goods at its expense and shall be liable to BUYER for any and all costs, liabilities, damages, expenses, fines, or penalties incurred by BUYER as a result of SELLER providing Counterfeit Goods. BUYER may, at its option, destroy any Counterfeit Goods with no liability to SELLER.
11. Indemnification and Insurance.
SELLER agrees to indemnify, hold harmless, and defend BUYER, its affiliates, subsidiaries, and parent companies and its owners, agents, directors, officers, and employees, from and against any and all loss, damage, claim, expense, cost (including attorneys’ fees), liability, settlement, or judgment, of any character whatsoever, arising out of or due to: (a) a claim that goods or services furnished by the SELLER are defective in any respect; (b) SELLER’s breach of any representation, warranty, term or condition contained herein, in the Quality Agreement entered into between SELLER and BUYER, if applicable, or in the Assured Supply Program Agreement entered into between SELLER and BUYER, if applicable; or (c) any negligent, reckless, or intentionally wrongful act or omission by SELLER or any SELLER employee or agent. SELLER shall maintain such public liability insurance including products liability, completed operations, contractors’ liability and protective liability, automobile liability (including non-owned automobile liability), and workers’ compensation, employers’ liability, and infringement insurance as will adequately protect BUYER against such damage, liabilities, claims, losses, and expenses (including attorney’s fees). SELLER agrees to submit certificates of insurance, evidencing coverage in accordance with this paragraph, when requested by BUYER. SELLER’s obligations under this paragraph shall survive the cancellation, termination, or completion of this Purchase Order.
12. Intellectual Property.
BUYER may make available to SELLER designs, drawings, formulas, writings, models, molds, inventions, instructions, specifications, data, documentation, information, or other material developed or provided by BUYER, its employees, agents, or contractors (“BUYER Materials”). As between the parties, all BUYER Materials, including all copyrights, trademarks, patents, trade secrets, and all other proprietary rights inherent therein and appurtenant thereto, shall remain the sole and exclusive property of BUYER. This Agreement confers upon SELLER a non-exclusive, royalty-free, limited license to use the BUYER Materials solely to perform SELLER’s obligations hereunder. SELLER shall have no right to use, reproduce, disclose, distribute, alter, make derivative works, publish, and/or sublicense BUYER Materials for any purpose other than performance of SELLER’s obligations hereunder.
In the event the services provided by SELLER pursuant to this Purchase Order include the creation of any works for BUYER that are protectable under any intellectual property law, including SELLER feedback or ideas for modification related to BUYER Materials (collectively, “Deliverables”), all such Deliverables shall be the sole and exclusive property of BUYER. SELLER acknowledges, agrees, and understands that all Deliverables are “WORKS FOR HIRE” under U.S. Copyright law, and BUYER shall have sole title to and ownership of all such Deliverables and all intellectual property embodied therein. In the event this work for hire stipulation is found or held unenforceable with respect to any Deliverable, SELLER agrees to assign and transfer to BUYER, at no additional cost, all rights that SELLER might have asserted or could assert in the Deliverables, including copyright, patent, trademark, trade secret, moral, or other intellectual property rights. SELLER agrees to cooperate with BUYER to effectuate the ownership provisions of this section by taking all actions reasonably required to assert or protect BUYER’s ownership of the Deliverables and intellectual property embodied therein, including but not limited to execution of assignment and/or registration documents as requested by BUYER. SELLER waives the exercise of any “moral rights”, or “droit moral”, and any analogous rights however denominated now or hereafter recognized. SELLER retains no rights, title, or interests in the Deliverables. SELLER has acquired or shall acquire from each of its employees, agents or other persons or entities acting on behalf or for the benefit of SELLER, the necessary rights to all such Deliverables to effectuate this provision.
13. Confidentiality.
SELLER will protect and will not at any time disclose to any person, firm, or corporation any information acquired by SELLER in connection with this Purchase Order, including BUYER Materials or other information that can reasonably be understood to be confidential given the nature of the information and the circumstances surrounding its disclosure (“Confidential Information”), except as necessary to fulfill its obligations hereunder. Upon termination or expiration of the agreement or completion of the Purchase Order SELLER will, at BUYER’s discretion, return or destroy all BUYER Confidential Information at SELLER’s sole expense. Without limiting the foregoing, in the event BUYER and SELLER have entered into a Confidentiality Agreement in the form of either Buyer’s FORM-4.1.2-03, Mutual Confidentiality Agreement or FORM-4.1.2-04, Unilateral Confidentiality Agreement (the “Confidentiality Agreement”), the terms of the Confidentiality Agreement shall apply to all BUYER Materials furnished pursuant to this Purchase Order.
14. BUYER’S Property:
All special tools, dies, patterns, jigs, fixtures, and other items supplied or paid for by BUYER remain BUYER’s property and SELLER agrees to comply promptly will all disposal and shipping instructions furnished by BUYER. SELLER agrees, at its expense, to maintain all of BUYER’S property in SELLER’s possession in good condition and repair and adequately insured and to indemnify BUYER for any damage or loss to such property, to any third party.
15. Force Majeure.
If, by reason of fire, earthquake, flood, explosion, accident, lack of facilities, act of God, compliance with any valid or invalid law, order, regulation, request, or recommendation of any government agency or authority, or other cause beyond the immediate and direct control of BUYER, BUYER shall be delayed in whole or in part in taking any delivery or deliveries of goods and/or accepting the rendering of services as herein specified, then without obligation BUYER may without penalty, by giving notice to SELLER, cancel or suspend the Purchase Order in whole or in part as to any undelivered portion of such goods and/or unrendered portion of such services.
16. Independent Contractor:
When work of any description is performed in furtherance of SELLER’s obligations under this Purchase Order on the premises of BUYER or any of BUYER’s customers, SELLER agrees that such services are to be rendered by SELLER as an independent contractor and SELLER shall provide all safeguards and take all necessary precautions to prevent the occurrence of any accident, injury, death or loss to any person or property and shall be solely responsible therefore.
17. Assignment and Subcontracting:
SELLER may not assign or transfer this Purchase Order or any payments to be made hereunder without BUYER’s prior written approval. SELLER may not subcontract any portion of the work to be performed by it under this Purchase Order, or the manufacture of any critical component of the goods to be delivered under this Purchase Order, without BUYER’s prior written approval.
18. Setoff:
All claims for monies due or to become due from BUYER under this Purchase Order are subject to deduction by BUYER for any setoff or counterclaim that BUYER may have against SELLER.
19. Applicable Laws.
This Purchase Order shall be construed and performed in accordance with the laws of the State of Ohio without giving effect to its choice of law provisions. Any claim, dispute, or matter arising under or in connection with this agreement shall be brought exclusively in the state or federal courts located in Athens County, Ohio. SELLER hereby irrevocably submits to the jurisdiction of such courts and hereby waives any objection based on lack of personal jurisdiction, improper venue, or forum non convenient. The United Nations Convention on the International Sale of Goods (CISG) shall NOT apply to this agreement. SELLER may not assign its rights or delegate its obligations hereunder without BUYER’s prior written consent.
(REF-7.4.1-03, REV 0)
