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1. ACCEPTANCE OF CONTROLLING TERMS AND CONDITIONS. Buyer objects to, and is not bound by, any term or condition in Seller’s acknowledgement of the Purchase Order which contains different or additional terms and conditions than those set forth in the Purchase Order and in these Terms of Purchase (collectively, the Purchase Order and the Terms of Purchase are referred to herein as the “Purchase Order.”) Seller agrees to sell to Buyer, the goods or services described or referred to herein, at the prices indicated, only on the express condition that Seller assents to the terms or conditions set forth in the Purchase Order (the “Terms”). Buyer’s acceptance is limited to the exact Terms, and any additional or different terms or conditions proposed by Seller are hereby expressly rejected. If this document is construed as an expression of acceptance or as a confirmation of a verbal agreement, such acceptance or confirmation is expressly made conditional on the assent of the Seller to the Terms. Any confirmatory action by Seller to perform the obligations under the Purchase Order shall be deemed to be Seller’s acceptance of these Terms. In the event this document is deemed an offer, the offer is expressly conditioned upon agreement by Seller to the exact Terms, and any additional or different terms or conditions proposed by Seller are hereby expressly rejected.

Additional Terms - Additional terms and conditions below are hereby incorporated by reference and shall have the same effect as if they were written in full. Supplier shall work to the current terms which are located at:

http://www.ttmtech.com/supplier/default.pdf

  1. FAR and DFAR Requirements for Suppliers (TTMTCP200)
  2. Counterfeit Parts Requirements for Suppliers (TTMTCP300)
  3. Conflict Materials Requirements for Suppliers (TTMTCP400)
  4. Facility Specific Quality Assurance Provisions

 

2. PRICES AND PAYMENTS.

2.1 Seller warrants that the price named in the Purchase Order is as low as any net prices now given by Seller to any other customer for like goods and/or services. No extra charges of any kind will be allowed, unless specifically agreed to by Buyer in a writing that specifically references this Section.

2.2 Seller agrees to protect Buyer against any decline in prices; if during the duration of the Purchase Order, Seller quotes to anyone a price lower than that set forth in the Purchase Order, such lower price will apply to the quantity of goods and/or services undelivered hereunder. If a lower price is quoted by others for like goods and/or services, unless Seller is willing to meet that lower price for any undelivered goods or services, Buyer is at liberty to purchase any undelivered quantity hereunder at the lower price from such other party. In the case where Buyer purchases like goods and/or services at the lower price from a third party, Seller’s undelivered balance of goods and/or services shall thereby be cancelled and Buyer shall have no obligation to purchase Seller’s undelivered goods and services.

2.3 Seller’s price shall include sovereign, state and local sales, use, excise, value added, privilege, payroll, occupational and any other taxes, fees or duties applicable to the goods or services.

2.4 Payment terms are net 90 days, unless otherwise stated on the face of the Purchase Order, from the later of: (i) the actual delivery date, (ii) the scheduled delivery date or (iii) the date of receipt of the valid invoice by Buyer. Seller warrants that it is authorized to receive payment in the currency stated in the Purchase Order. Buyer shall be entitled at any time to set-off amounts owing under the Purchase Order, with any and all amounts owing from Seller to Buyer under these Terms of Purchase or any other agreement between the Seller and Buyer.

2.5 Discount - Time in connection with any discount offered Buyer, will be computed from the later of the date of delivery at destination of items ordered, or from the date of the correct bill or voucher received by Buyer’s Accounts Payable Department.

 

3. DELIVERY AND PASSAGE OF TITLE.

3.1 Time is of the essence with respect to the Purchase Order. If Seller fails to deliver the goods or complete the services as scheduled, Buyer may, at Buyer’s sole discretion: (i) assess such amounts as may be set on the face of the Purchase Order as liquidated damages for the agreed delay period; (ii) require Seller, at Seller’s cost, to forward all goods by fastest method (express premium air, sea and/or land delivery) to the destination point determined by Buyer; (iii) buy the undelivered goods and/or services elsewhere and charge Seller the excess cost and expenses over the price set forth in the Purchase Order; and/or (iv) suspend or terminate the Purchase Order in accordance with Section 11.

Unless otherwise stated on the face of the Purchase Order, goods shipped from Seller for delivery to Buyer shall be delivered DDP Buyer’s facility, or the destination point identified by Buyer (collectively, “Buyer’s Delivery Point”), with title and risk of loss passing at Buyer’s Delivery Point. All delivery designations are INCOTERMS® 2010. Goods delivered to Buyer in advance of schedule may, at Buyer’s sole determination, be returned to Seller at Seller’s expense or stored by Buyer at Seller’s expense. Buyer shall have the right to specify the carrier, the contract of carriage, and the named place of delivery in all cases.

3.2 Each shipment shall include a detailed, complete bill of material/parts (each material or part is a “component”) list which sets forth: (i) each component of the goods or materials purchased by Buyer; (ii) each component included in the shipment; and (iii) each component not included in the shipment. This bill of material/parts list shall be included with the packing list for each shipment. When requested by the Buyer, Seller must provide a packing list with values for each item.

3.3 If goods will cross an international border, Seller shall provide all documentation as required for Customs clearance in each and all countries. Seller’s invoice shall be in English, or destination country specific language, and shall include: (i) contact names and phone numbers of Buyer and Seller who have knowledge of the transaction; (ii) Buyer order number, part number and detailed description of the merchandise; (iii) purchase price in currency of the transaction; (iv) quantity; (v) INCOTERMS® and named place; and (vi) Country of Origin of the goods. In addition, all goods or services provided by Buyer to Seller for the production of goods not included in the Purchase Order shall be separately identified on the invoice (i.e. consigned material, tooling, etc.). Each invoice shall also include the applicable Purchase Order number or other reference information for any consigned goods and shall identify any discounts or rebates from the base price used in determining invoice value.

3.4 If goods will be delivered to a destination country having a Trade Agreement with Seller’s Country, Seller shall cooperate with Buyer to assure eligibility of goods for any special program for Buyer’s benefit and provide Buyer required documentation (e.g., NAFTA Certificate, EURI Certificate, Declaration or other Certificate of Origin) to support the applicable special customs program (e.g., NAFTA, EU-Mexico FTA, etc.) to allow duty free or reduced duty for entry of goods into the destination country. Similarly, should any Trade Agreement or special customs program applicable to the scope of the Purchase Order exist at any time during the execution of the same, and be of benefit to Buyer, in Buyer’s sole judgment, Seller shall cooperate with Buyer’s efforts to realize any such available credits, including, but not limited to, counter-trade or offset credit value which may result from the Purchase Order, and acknowledges that such credits and benefits shall inure solely to Buyer’s benefit. Seller shall indemnify, defend and hold Buyer harmless from any costs, fines, penalties or charges arising from Seller’s inaccurate documentation or untimely cooperation. Seller shall immediately notify Buyer of any known documentation errors.

 

4. DRAWINGS. Any review or approval of drawings by Buyer will be for Seller’s convenience and will not relieve Seller of Seller’s responsibility to meet all requirements of the Purchase Order.

 

5. CHANGES. Buyer may at any time make changes within the general scope of the Purchase Order in any one or more of the following: (i) drawings, designs or specifications where the goods to be furnished are to be specially manufactured for Buyer; (ii) method of shipment or packing; (iii) place and time of delivery; (iv) amount of Buyer’s furnished property; (v) quality; and/or (vi) quantity. If any changes cause an increase or decrease in the cost of, or the time required for the performance of, any work under the Purchase Order, an equitable adjustment shall be made in the Purchase Order price or delivery schedule, or both, such adjustment to be made in writing signed by Seller and Buyer. Any claim by Seller for adjustment under this clause will be deemed waived unless asserted within thirty (30) days after Seller’s receipt of the change or suspension notification, and may only include reasonable, direct costs that will necessarily be incurred as a direct result of the change, and must be accompanied by a detailed invoice and necessary proof.

 

6. INSPECTION OF GOODS. All goods (including, but not limited to, raw materials, components, intermediate assemblies, work in process, tools and end products) and services shall be subject to inspection and test upon reasonable notice by Buyer and Buyer’s customers, or representatives of either, at all times and places, including, but not limited to, sites where the goods and services are created or performed, to assess: (i) work quality; (ii) conformance with Buyer’s specifications; and (iii) conformance with Seller’s representations, warranties and covenants. If any inspection or test is made on Seller’s premises, Seller, without additional charge, shall provide all reasonable access and assistance to the inspectors and for the safety and convenience of the inspectors. If Buyer and/or Buyer’s customer tests and/or inspection points are included in the Purchase Order, the goods shall not be shipped without Buyer’s or Buyer’s customer’s, as applicable, inspector’s release or a written waiver of test and/or inspection with respect to each such point. Seller shall notify Buyer in writing at least twenty (20) days prior to each of Seller’s scheduled tests and/or inspections and, as applicable, each test and/or inspection point. Buyer’s final inspection, to include acceptance or rejection of the goods or services, shall be made as promptly as practical after delivery, except as otherwise provided in these Terms of Purchase. Failure to inspect, accept, reject or detect defects by inspection shall neither: (i) relieve Seller from responsibility for such goods or services including those that are not in accordance with the Purchase Order requirements; nor (ii) impose any liabilities on Buyer. Seller shall provide and maintain an inspection and process control system acceptable to Buyer and Buyer’s customers covering the goods and services and shall keep complete records available to Buyer and Buyer’s customer for seven (7) years from the date of final payment received by Seller.

 

7. REJECTION. If any of the goods or services provided pursuant to the Purchase Order are found at any time prior to expiration of its applicable warranty to be defective or otherwise not in conformity with the requirements of the Purchase Order, Buyer, in addition to all other rights, remedies and choices Buyer has pursuant to the Purchase Order, these Terms of Purchase, by law, and in equity, may, at its option and sole discretion and at Seller’s expense: (i) reject and return all of the goods or services or only reject the non-conforming goods or services; (ii) take action to cure all defects and/or bring the goods into conformity with all requirements of the Purchase Order, allocating all costs, expenses (including, but not limited to, material, labor and handling costs, and any legal and professional fees), and other reasonable charges for Seller’s account; (iii) withhold total or partial payment; (iv) require Seller to immediately and properly correct any defective portion of the services and/or require Seller to immediately replace any non-conforming goods with goods that conform to the Purchase Order; (v) require Seller to recall and replace or repair, as appropriate, all non-conforming goods and/or services; and/or (vi) suspend or terminate the Purchase Order in accordance with Section 11. For any repair or replacement, Seller shall perform any and all tests requested by Buyer to verify conformance to the Purchase Order. Cost for tests shall be borne by Seller.

 

8. BUYER’S PROPERTY. Unless otherwise agreed in writing, all information, tools, equipment and/or material furnished to Seller by Buyer or specially paid for by Buyer, and any replacement thereof, or any materials affixed or attached thereto, shall be and remain Buyer’s personal property. Such property and, whenever practical, each individual item thereof, shall be plainly marked or otherwise adequately identified by Seller as Buyer’s property and shall be safely stored separate and apart from Seller’s property. Seller shall use Buyer’s property only to meet Buyer’s orders and shall not substitute any property for Buyer’s orders. Such property, while in Seller’s custody or control, shall be held at Seller’s risk, shall be kept insured by Seller at Seller’s expense in an amount equal to the replacement cost and Buyer shall be named on Seller’s insurance policies as an additional insured with loss payable to Buyer. Such property shall be subject to removal at Buyer’s written request, in which event Seller shall prepare such property for shipment and redeliver such property to Buyer in the same condition as originally received by Seller, reasonable wear and tear excepted, all at Seller’s expense. Buyer shall exclusively own all rights in ideas, inventions, works of authorship, strategies, plans and data created in or resulting from Seller’s performance under the Purchase Order, including, but not limited to, all patent rights, copyrights, moral rights, rights in proprietary information, database rights, trademark rights, and other intellectual property rights. All such intellectual property that is protectable by copyright will be considered work(s) made for hire for Buyer (as the phrase “work(s) made for hire” is defined in the United States Copyright Act (17 U.S.C. § 101)) or will give Buyer “first owner” status related to the work(s) under local copyright Law (“Law” is defined below) where the work(s) was created. If by operation of Law any of such intellectual property is not owned in its entirety by Buyer automatically upon creation, then Seller agrees to transfer and assign to Buyer, and hereby transfers and assigns to Buyer, the entire right, title and interest throughout the world to such intellectual property. If Seller is unable or unwilling to effectuate the obligations of this Section, Seller irrevocably designates and appoints Buyer and its duly authorized officers and agents as Seller’s agent and attorney-in-fact, to act for and on Seller’s behalf and stead to confirm the transfer of ownership of the foregoing intellectual property to Buyer and to complete, execute and file any documents, applications and to do all other lawfully permitted acts to further the prosecution and issuance of all patent rights, copyrights, moral rights, rights in proprietary information, database rights, trademark rights, and all other intellectual property rights thereon to Buyer with the same legal force and effect as if executed by Seller. “Law(s)” for purposes of the Purchase Order means any applicable federal, state, local, municipal, foreign, international, multinational, or other administrative order, constitution, law, ordinance, principle of common law, regulation, statute or treaty.

 

9. INSPECTION OF FINANCIALS. Buyer may, during regular business hours and after reasonable notice, access any of Seller’s premises to examine: (i) Seller’s financial and other books and records relating to Seller’s performance under the Purchase Order and Seller’s compliance therewith (including, but not limited to, invoices and other documents to support invoice elements) and (ii) materials, components, manufacturing facilities, procedures and goods in any state of production or delivery. Upon Buyer’s request, Seller shall provide Buyer with a certificate certifying compliance with any and all of the representations and warranties in the Purchase Order (including, but not limited to, Section 2.2) and/or any and all covenants and other provisions in the Purchase Order.

 

10. WARRANTIES. Seller warrants that all goods and services provided pursuant to the Purchase Order, whether provided by Seller or by a direct or indirect supplier of Seller: (i) will be conveyed with good title, free of any liens, encumbrance and claims of any nature; (ii) will conform in strict compliance with all specifications, samples, drawings, designs, descriptions or other requirements approved or adopted by Buyer; (iii) will comply with all Laws; and (iv) will be of merchantable quality, free from all defects in design, workmanship and material, and will be fit for their intended, ordinary and foreseeable uses. All such warranties, as well as Seller’s original warranties, shall have a warranty period that is the longer of: (i) Seller’s original warranty; or (ii) thirty-six (36) months after accepted delivery of the applicable goods or services. The warranties shall run to Buyer, its successors, assigns, and users of the goods and services covered by the Purchase Order, and such successors, assigns, and users of the goods and services shall be third party beneficiaries of these warranties.

 

11. SUSPENSION AND TERMINATION. Buyer may suspend the Purchase Order or any part thereof, at any time, for any or no reason, by written notice to Seller. Upon receiving notice of suspension, Seller shall promptly suspend work to the extent specified, properly caring for and protecting all work in progress and materials, supplies, and equipment Seller has on hand for performance. Seller shall promptly deliver to Buyer copies of outstanding purchase orders and subcontracts for materials, equipment and service for the work, and shall take such action relative to such purchase orders and subcontracts as Buyer may direct. Buyer may at any time withdraw the suspension as to all or part of the suspended work by written notice specifying the effective date and scope of withdrawal. Seller shall resume performance on the specified effective date of withdrawal. All claims for increase or decrease in the cost of, or the time required for the performance of any work caused by suspension, shall be pursued solely pursuant to Section 5.

 

Buyer may terminate the Purchase Order or any part thereof, at any time, for any or no reason, by written notice to Seller. Upon receiving notice of termination: (i) Seller shall immediately suspend work to the extent specified, properly caring for and protecting all work in progress and materials, supplies, and equipment Seller has on hand for performance; and (ii) Seller shall immediately deliver to Buyer copies of outstanding purchase orders and subcontracts for materials, equipment and service for the work, and shall take such action relative to such purchase orders and subcontracts as Buyer may direct. All claims for costs incurred by Seller prior to the termination shall be made within thirty (30) days from the date of termination, and may include only reasonable direct costs (not including any profits), of those unique components that cannot  be returned to Seller’s supplier or sold to other customers, that were required to produce the goods and/or services requested in the Purchase Order, and any such claim must be accompanied by a detailed invoice and necessary proof.

 

12. INDEMNITY AND INSURANCE. Seller shall defend, indemnify and hold harmless the Buyer and its subsidiaries, affiliates, and parent companies and their respective directors, officers, employees, agents, representatives, successors and assigns, whether acting in the course of their employment or otherwise, against any and all suits, actions, or proceedings, at law or in equity, and from any and all claims, demands, losses, judgments, damages, costs, expenses or liabilities (including, but not limited to, claims for personal injury or property damage, claims or damages payable to customers of Buyer, and breaches of the Purchase Order) arising from any act or omission of Seller, its agents, suppliers, employees or subcontractors. Seller shall maintain: (i) Worker’s Compensation Insurance covering all employees, and (ii) Commercial General Liability Insurance (or similar insurance) (including, but not limited to, so-called “broad form” contractual liability, which includes, but is not limited to, coverage for contractual liability insuring the liability assumed in these Terms of Purchase, for products liability, contractor’s protective liability, collapse or structural injury, and coverage for damage to property in the Seller’s control, care and/or custody) on an occurrence basis for injuries, including, but not limited to, accidental death, to any number of persons in an amount not less than $10,000,000 United States Dollars (“USD”) and for property damage on account of any single occurrence in an amount not less than $3,000,000 USD, issued by companies reasonably acceptable to Buyer. Seller shall maintain adequate fire and casualty insurance, including, but not limited to “all risk” property insurance, covering the replacement value of all components and goods. Seller shall furnish Buyer “Certificates of Insurance,” completed by Seller’s insurance carrier(s), naming Buyer as an additional insured and certifying that the insurance coverages are in effect and will not be cancelled or materially changed except ten days after Buyer’s written approval. Seller hereby waives subrogation. All insurance specified in this section shall contain a waiver of subrogation in favor of Buyer, its subsidiaries, affiliates and their respective employees for all losses and damages covered by the insurance required in this section, including, but not limited to, coverage for damage to Buyer’s property in the Seller’s care, custody or control. The existence of Seller’s insurance is not to be construed as a limitation of Seller’s liability hereunder.

 

13. ASSIGNMENT AND SUBCONTRACTING. Seller may not assign, including, but not limited to, by change of ownership or control, the Purchase Order or any interest herein including, but not limited to, payment to Buyer, without Buyer’s prior written consent. Seller will require all of its subcontractors and sub-tier suppliers to comply with the Terms set forth in the Purchase Order.

 

14. PROPER BUSINESS PRACTICES. Seller shall act in a manner consistent with Buyer’s integrity policies, the Electronic Industry Citizenship Coalition’s Code of Conduct, all Laws concerning improper or illegal payments and gifts or gratuities, and further agrees not to pay, promise to pay, or authorize the payment of, any money or anything of value, directly or indirectly, to any person for the purpose of illegally or improperly inducing a decision or obtaining or retaining business in connection with the Purchase Order. In addition, Buyer shall be entitled to immediately terminate the Purchase Order and to recover from the Seller any loss resulting from such termination if the Seller (including Seller’s agents or representatives) has offered or given or agreed to give to any person any gift or consideration of any kind as an inducement or reward for doing or forbearing to do or for having done or forborne to do any act in relation to the obtaining or execution of an agreement or any other document relating to the Purchase Order or for showing favor to any person in relation to any agreement between Buyer and Seller, and if the Purchase Order is so terminated, notwithstanding any other provision herein to the contrary, Seller will not be entitled to any recompense or sums for any costs incurred or work performed pursuant to the Purchase Order. In addition, Seller shall provide any information requested by Buyer with respect to the origin of minerals used in the goods, including but not limited to information required pursuant to 12 U.S.C. § 1502 and associated United States Securities and Exchange Commission rules.

 

15. COMPLIANCE WITH LAWS.

15.1 Seller represents, warrants, certifies and covenants that it will comply with applicable provisions of all applicable Laws and all lawful orders, rules, and regulations issued thereunder, in the country of intermediate and/or final delivery of goods or provision of services. Seller shall also comply with good industry practices. No forced or prison labor, or labor in violation of minimum working age Law in the country of manufacture may be used in connection with the Purchase Order. If forced or prison labor, or labor below applicable minimum working age, is determined to have been used in connection with the Purchase Order, Buyer shall have the right to immediately terminate the Purchase Order and Seller shall not be entitled to any recompense or sums for any costs incurred or work performed pursuant to the Purchase Order. Seller further agrees to provide at Buyer’s request certificates relating to any applicable legal requirements and to update any and all of the certifications, representations and warranties made under the Purchase Order, in form and substance satisfactory to Buyer.

15.2 Seller represents, warrants, certifies and covenants that it will take appropriate actions to provide a safe and healthy workplace and to protect local environmental quality. In addition, Seller shall comply with all provisions, certifications (including updates thereof), representations, agreements or contract clauses required to be included or incorporated in the Purchase Order by reference or operation of Law, including but not limited to those dealing with applicable provisions of the following laws and related regulations: (i) Equal Opportunity (Executive Order 11246 as amended by Executive Orders 113575 and 10286); (ii) Employment of Veterans (Executive Order 11701); (iii) Employment of the Handicapped (Executive Order 11758 as amended by Executive Order 11867); (iv) Employment Discrimination Because of Age (Executive Order 11141 ); (v) Utilization of Disadvantaged and Business Enterprises (Executive Order 11625, Public Law 95-507); (vi) Occupational Safety and Health Act (“OSHA”) including, but not limited to, OSHA regulations 29 CFR 1910.1200 accompanied by a completed Material Safety Data Sheet (OSHA Form 20) and mandated labelling information; (vii) U.S. Foreign Corrupt Practices Act, as amended, (15 U.S.C. 78 et seq.); and (vii) all applicable export and re-export control laws and regulations, including, but not limited to, the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, the trade and economic sanctions regulations maintained by the Treasury Departments Office of Foreign Assets Control (OFAC) and the International Traffic in Arms Regulations (“ITAR”) maintained by the U.S. Department of State. Seller shall also comply with regulations governing the packaging, marking, shipping and documentation of hazardous material including, but not limited to, those specified pursuant to Title 49 of the Code of Federal Regulations, the International Maritime Organization, and the International Air Transportation Association. Seller certifies that, with respect to orders which exceed $10,000 USD, it is in compliance with the requirements for non-segregated facilities set forth in 41 CFR Chapter 60-1.8. Seller agrees to provide small and/or minority business (including, but not limited to, women-owned business) utilization and demographic data upon request. Seller warrants that each chemical substance constituting or contained in goods sold or otherwise transferred to Buyer is on the list of chemical substances compiled and published by the Administrator of the Environmental Protection Administration pursuant to the Toxic Substances Control Act (15 U.S.C. 2601 et seq), the Federal Hazardous Substances Act (P.L. 92-516) as amended, the European Inventory of Existing Commercial Chemical Substances (“EINECS”) as amended or the European list of Notified Chemical Substances (“ELINCS”) and lawful standards and regulations thereunder, or equivalent lists in any other jurisdiction to which Buyer informs Seller the goods will likely be shipped. Goods sold or transferred to Buyer will not include arsenic, asbestos, benzene, carbon tetrachloride, lead, cadmium or chemicals restricted under the Montreal Protocol unless Buyer agrees in writing. Seller represents that the goods were or will be produced in compliance with the Fair Labor Standards Act of 1938, as amended, including, but not limited to, Section 12 (a) of such Act.

15.3 Seller represents, warrants, certifies and covenants that all sales made hereunder are made in circumstances that will not give rise to the imposition of anti-dumping or countervailing duties under United States law (19 U.S.C. Sec. 1671 et seq.) or the Law of any other country to which the goods may be exported. To the full extent permitted by Law, Seller will indemnify, defend and hold harmless Buyer from and against any costs or expenses (including, but not limited to, any countervailing duties which may be imposed and, to the extent permitted by Law, any preliminary dumping duties that may be imposed) arising out of, or in connection with, any breach of this warranty.

15.4 If goods are to be delivered DDP (INCOTERMS® 2010) to the destination country, Seller agrees that Buyer will not be a party to the importation of the goods, that the transaction(s) represented by the Purchase Order will be consummated after importation, and that Seller will neither cause nor permit Buyer’s name to be shown as “importer of record” on any customs declaration. Seller also confirms that it has non-resident importation rights, if necessary, to import into the destination country. If Seller is the importer of record into the United States of America for any goods or services associated with the Purchase Order, including, but not limited to, any component parts thereof, Seller shall provide Buyer required documentation for duty drawback purposes which includes, but is not limited to, properly executed Customs Form 7552, titled “Certificate of Delivery,” as well as Customs Form 7501, titled “Entry Summary,” and a copy of Seller’s invoice.

 

16. CONFIDENTIAL OR PROPRIETARY INFORMATION AND PUBLICITY. Seller shall keep confidential all information provided by Buyer in connection with the Purchase Order, including, but not limited to, any technical, process, proprietary or economic information derived from drawings, models, specifications and other data and shall not divulge, directly or indirectly, such information for the benefit of any party other than Buyer without Buyer’s prior written consent. Except as required for the efficient performance of the Purchase Order, Seller shall not use such information or make or permit copies to be made of such drawings, models, proprietary information, specifications or other data without Buyer’s prior written consent. If any reproduction is made with prior written consent, notice referring to the requirements of this paragraph shall be inscribed thereon. Upon completion or termination of the Purchase Order, Seller shall promptly return to Buyer all materials incorporating any such information and any copies thereof. Any knowledge or information which Seller shall have disclosed or may hereafter disclose to Buyer, and which in any way relates to the goods or services related to the Purchase Order, shall not, unless otherwise specifically agreed to in writing by Buyer, be deemed to be confidential or proprietary, and shall be acquired by Buyer free from any restrictions, as part of the consideration for the Purchase Order. Seller shall not make any announcement, take or release any photographs (except for its internal operation purposes for manufacture and assembly of goods), or release any information concerning the Purchase Order or any part thereof or with respect to its business relationship with Buyer, to any third party, member of the public, press, or any official body except as required by applicable Law, without Buyer’s prior written consent.

 

17. INTELLECTUAL PROPERTY. Seller shall indemnify, defend and hold harmless Buyer, and its subsidiaries, affiliates and parent companies and their respective directors, officers, employees, agents representatives, successors and assigns, whether acting in the course of their employment or otherwise, from any and all costs, damages, and expenses (including, but not limited to, attorney and professional fees) related to any suit, claim or proceeding brought against Buyer or Buyer’s customers (or the investigation thereof) based on a claim that any goods and/or services, or any part thereof, furnished under the Purchase Order, including any device or process necessarily resulting from the use thereof, allegedly or actually constitutes an infringement of any patent, copyright, trademark, trade secret or other intellectual property or proprietary right of any third party. Buyer shall notify Seller promptly and give information and assistance, at Seller’s expense, for the investigation and defense of such claim. If use of any or all goods and/or services are enjoined, Seller shall, at its own expense and at its option, either procure for Buyer the right to continue using such goods and/or services or replace same with a non-infringing but functional equivalent subject to Buyer’s acceptance of such modified goods or services in Buyer’s sole discretion.

 

18. PACKING, PRESERVATION AND MARKING. Packing, preservation and marking will be in accordance with the specification drawing or as specified in the Purchase Order, or if not specified, the best commercially accepted practice, consistent with applicable Law. The Country of Origin for all goods shipped across international borders shall be marked in a conspicuous location as legibly, indelibly and permanently as the nature of the article or container will permit, so as to clearly indicate to Buyer and customs the origin of the goods.

 

19. GOVERNING LAW. The Purchase Order shall be construed under and governed by the laws of the State of Delaware without regard to its conflicts of laws principles. NEITHER THE PROVISIONS OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS NOR THE PROVISIONS OF THE UNITED NATIONS CONVENTION ON THE LIMITATION PERIOD IN THE INTERNATIONAL SALE OF GOODS SHALL APPLY TO THE PURCHASE ORDER.

 

20. DISPUTE  RESOLUTION.

20.1 If Seller is a permanent resident of the United States of America, or is a corporation, partnership or other entity existing under the laws of the United States of America, the Buyer and Seller shall first attempt amicably to resolve any controversy, dispute or difference arising out of the Purchase Order or the legal relations between the parties, failing which, either party may file a lawsuit. Buyer and Seller hereby irrevocably consent to the exclusive jurisdiction and venue of either the state courts in Delaware or the federal District Court for the state of Delaware for all such controversies, disputes or differences. The parties submit to the jurisdiction of said courts, and waive any claim including but not limited to procedural due process or forum non-conveniens, as a result of such venue and forum.

20.2 If Seller is a permanent resident of a country other than the United States of America, or is a corporation, partnership or other entity existing under the Laws of any country other than the United States of America, the parties shall first attempt amicably to resolve any controversy, dispute or difference arising out of the Purchase Order or the legal relations between the parties (the “Dispute”). If the parties can not amicably resolve the Dispute, then the parties’ sole recourse is to submit such Dispute to final and binding arbitration in accordance with the Rules of Arbitration of the International Chamber of Commerce (“ICC”). Such Dispute shall be finally settled under the ICC Rules of Arbitration by a sole arbitrator appointed in accordance with the ICC’s Rules. The President of the ICC shall upon the request of either party make any appointment of an arbitrator if an arbitrator is not timely agreed to by the parties. The arbitration shall be conducted in St. Louis, Missouri, in the English language. The arbitrator shall allow written discovery including, but not limited to, audits of books and records, production of documents to be relied upon by the parties in the arbitral proceeding, production of documents exchanged with third parties, production of any and all documents in the care, custody, or control of the parties pursuant to a request for documents which is reasonably calculated to lead to the discovery of admissible evidence. Arbitration expenses shall be borne equally by the parties but each party shall pay its own attorneys’ fees. The award shall be final and binding on both Buyer and Seller, and the parties hereby waive the right of appeal to any court for amendment or modification of the arbitrators’ award. Judgment upon the award may be entered and enforced in any court pursuant to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York 1958) and/or applicable Law. Should judicial recourse be necessary in order to enforce this arbitration provision or to enforce an award, each party consents to the exclusive jurisdiction of either the state courts of Delaware or the federal District Court for the state of Delaware, for all Disputes. The parties submit to the jurisdiction of said courts, and waive any claim including but not limited to procedural due process or forum non-conveniens, as a result of such venue and forum. Each party agrees that service of process by mail and/or commercial express mail service shall be valid service.

 

21. WAIVER. The failure of Buyer in any one or more instances to insist upon performance of any Terms or to exercise any right or privilege hereunder, or the waiver by Buyer of any breach by Seller of any Terms , shall not be construed as generally waiving any Term, right, or privilege, and these Terms shall continue and remain in full force and effect as if no failure or waiver had occurred. A waiver by a party is only effective if it is in a signed writing, and is only effective in relation to the particular obligation or breach in respect to which it is given.

 

22. ENTIRE AGREEMENT. The Purchase Order constitutes the entire agreement between Seller and Buyer with respect to the goods and services covered thereby and supersedes any prior or other agreements, written or oral, between Buyer and Seller, concerning the subject matter thereof and can only be modified, terminated, or rescinded in writing by Buyer’s authorized representative.

 

23. SEVERABILITY. Whenever possible, each provision of the Purchase Order shall be interpreted in such manner as to be effective and valid under applicable Law. If any of the covenants or agreements are determined to be unenforceable by reason of extent, scope, duration or otherwise, then the parties agree that the tribunal hearing the matter shall reduce such extent, scope, duration or other provision only to the extent necessary for enforcement. If the governing law provision set forth above is not enforced, then the parties agree that the tribunal hearing the matter shall enforce the other provisions of the Purchase Order to the fullest extent possible under applicable Law. If any provision or part thereof shall be deemed prohibited or invalid under such applicable Law, said provision shall be ineffective only to the extent of said prohibition or invalidity, and said prohibition or invalidity shall not invalidate the remainder of said provision or any other provision of the Purchase Order.

 

24. SURVIVAL. All Terms which by their nature or effect are required or intended to be observed, kept or performed after the cancellation, termination or expiration of the Purchase Order, will survive and remain binding upon and for the benefit of the parties, their successors (including, but not limited to, successors by merger) and permitted assigns including, but not limited to, Sections 2, 3, 8, 9, 10, 11, 12, 15, 16, 17, 19, 20, 21, 23 and 24.

 

25. Order of Precedence - The Order and all documents incorporated by reference constitute the entire agreement of the parties as to the subject matter hereof. In the event of any inconsistency among the foregoing, the inconsistency shall be resolved by giving precedence in the following descending order:

  1. these terms and conditions,
  2. provisions set forth in the Purchase Order
  3. the specifications,
  4. the drawings, and
  5. any other mutually agreed documents incorporated by reference.

 

26. Priority Ratings - If a DO or DX priority rating is indicated on the face hereof Seller is required to follow the provisions of The Defense Priorities and Allocation System (DPAS) reference 15 CFR 700. Information pertaining to the DPAS can be accessed through http://www.bis.doc.gov/dpas/default.htm .

 

27. Government Contracts

All or part of this Subcontract/P.O. may be issued under a government contract in which case the following Federal Acquisition Regulations. (FAR) and Defense Department Fed. Acquisition Regulations (DFARS) are incorporated herein by reference (as per FAR 52.252 2 Clauses Incorporated by Reference). Each of the referenced clauses is applicable unless the clause itself contains dollar thresholds or other requirements making it inappropriate for the Subcontract/P.O. Unless otherwise noted, the revision of the FAR/DFAR clause in effect on the date of the prime contract award is applicable. Where necessary, to make the clause applicable to the Subcontract/P.O., the terms "Government" and "Contracting officer" or equivalent phrases mean Buyer. The term "Contractor" shall mean Seller, the term "contract" shall mean Subcontract/P.O.

 

FAR & DFAR CLAUSES INCORPORATED BY REFERENCE
FAR
TITLE

52.203-3

Gratuities

52.203-5

Covenant Against Contingent Fees

52.203-6

Restrictions on Subcontractor Sales to the Government

52.203-7

Anti-Kickback Procedures

52.203-10

Price or Fee Adjustment for Illegal or Improper Activity

52.203-11

Certification and Disclosure Regarding Payments to Influence Certain Federal Transactions

52.203-12

Limitation on Payments to Influence Federal Transactions

52.203-13

Contractor Code of Business Ethics and Conduct

52.203-14

Display of Hotline Poster(s)

52.203-17

Contractor Employee Whistle Blower Rights

52.204-2

Security Requirements

52.204-9

Personal Identity Verification of Contractor Personnel

52.204-10

Reporting Executive Compensation and First- Tier Subcontract Awards

52.209-5

Certification Regarding Responsibility Matters

52.209-6

Protecting the Government's Interest When Subcontracting with Contractors Debarred or Suspended

52.211-5

Material Requirements

52.211-15

Defense Priority and Allocation Requirements

52.215-2

Audit and Records-Negotiation

52.215-10

Price Reduction for Defective Cost or Pricing Data

52.215-11

Price Reduction for Defective Certified Cost or Pricing Data-Modifications

52.215-12

Subcontractor Certified Cost or Pricing Data

52.215-13

Subcontractor Certified Cost or Pricing Data

52.215-14

Integrity of Unit Prices

52.215-16

Facilities Capital Cost of Money

52.215-18

Reversion or Adjustment of Plans for Postretirement Benefits (PRB) Other Than Pensions

52.215-19

Notification of Ownership Changes

52.215-20

Requirements for Certified Cost or Pricing Data and Data Other Than Certified Cost or Pricing Data

52.215-21

Requirements for Certified Cost or Pricing Data and Data Other Than Certified Cost or Pricing Data-Modifications

52.215-22

Limitations on Pass-Through Charges-

52.215-23 & Alt I

Limitations on Pass-Through Charges

52.216-7

Allowable Cost and Payment

52.216-8

Fixed Fee

52.216-10

Incentive Fee

52.216-11

Cost Contract-No Fee

52.216-12

Cost-Sharing Contract-No Fee

52.219-8

Utilization of Small Business Concerns

52.219-9

Small Business Subcontracting Plan

52.222-1

Notice to the Government of Labor Disputes

52.222-2

Payment for Overtime Premiums

52.222-4

Contract Work Hours and Safety Standards Act

52.222-20

Walsh-Healey Public Contracts Act

52.222-21

Prohibition of Segregated Facility

52.222-22

Previous Contracts and Compliance Reports

52.222-25

Affirmative Action Compliance

52.222-26

Equal Opportunity

52.222-35

Equal Opportunity for Veterans

52.222-36

Affirmative Action for Workers with Disabilities

52.222-37

Employment Reports Veterans

52.222-40

Notification of Employee Rights Under the National Labor Relations Act

52.222-41

Service Contract Act of 1965

52.222-50 & Alt 1

Combating Trafficking in Persons

52.222-54

Employment Eligibility Verification

52.223-3

Hazardous Material Identification and Material Safety

52.223-5

Pollution Prevention and Right-to-Know Information

52.223-6

DRUG FREE WORKPLACE

52.223-7

Notice of Radioactive Materials

52.223-11

Ozone-Depleting Substances

52.223-18

Encouraging Contractor Policies to Ban Text Messaging While Driving

52.224-2

Privacy Act

52.225-1

Buy American Act-Supplies

52.225-5

Trade Agreements

52.225-8

Duty-Free Entry

52.225-13

Restrictions on Certain Foreign Purchases

52.227-1

Authorization and Consent

52.227-2

Notice and Assistance Regarding Patent and Copyright Infringement

52.227-9

Refund of Royalties

52.227-10

Filing of Patent Applications-Classified Subject Matter

52.227-11

Patent Rights-Ownership by the Contractor

52.227-14

Rights in Data-General

52.227-19

Commercial Computer Software License

52.228-3

Workers' Compensation Insurance (Defense Base Act)

52.228-4

Workers' Compensation and War-Hazard Insurance

52.228-5

Insurance-Work on a Government Installation

52.230-2

Cost Accounting Standards

52.230-3

Disclosure and Consistency of Cost Accounting Practices

52.230-4

Disclosure and Consistency of Cost Accounting Practices-Foreign Concerns

52.230-5

Cost Accounting Standards-Educational Institution

52.232-7

Payments under Time-and-Materials Labor-Hour Contracts

52.232-20

Limitation of Cost

52.232-22

Limitation of Funds

52.232-40

Providing Accelerated Payments to Small Business Subcontractors

52.234-1

Industrial Resources Developed Under Defense Production Act Title III

52.236-13

Accident Prevention

52.237-2

Protection of Government Buildings, Equipment, and Vegetation

52.242-13

Bankruptcy

52.243-1

Changes-Fixed-Price

52.243-2

Changes-Cost-Reimbursement

52.243-3

Changes-Time-and-Materials or Labor- Hours

52.243-6

Change Order Accounting

52.244-2

Subcontracts

52.244-5

Competition in Subcontracting

52.244-6

Subcontracts for Commercial Items

52.245-1 Alt 1, 2

Government Property

52.245-2

Government Property Installation Operation Services

52.245-9

Use and Charges

52.246-2

Inspection of Supplies-Fixed-Price

52.246-3

Inspection of Supplies-Cost-Reimbursement

52.246-5

Inspection of Services-Cost-Reimbursement

52.246-6

Inspection-Time-and-Material and Labor- hour

52.246-16

Responsibility for Supplies

52.247-64

Specific Quantities Unknown

52.248-1

Value Engineering

52.249-2

Termination for Convenience of the Government (Fixed)

52.249-6

Termination (Cost-Reimbursement)

52.249-8

Default (Fixed Price Supply and Service)

52.249-14

Excusable Delays

DFAR
TITLE

252.204-7000

Disclosure of Information

252.204-7008

Compliance with Safeguarding Covered Defense Information Controls

252.204-7009

Limitations on the Use or Disclosure of Third-Party Contractor Reported Cyber Incident Information

252.204-7012

Covered Defense Information

252.204-7015

Disclosure of Information to Litigation Support Contractors

252.208-7000

Intent to Furnish Precious Metals as Government-Furnished Material

252.209-7004

Subcontracting with Firms That Are Owned or Controlled by the Government of a Terrorist Country

252.211-7003

Item Identification and Valuation

252.211-7007

Reporting of Government- Furnished Equipment in the DOD item Unique (IUID) Registry

252.215-7003

Excessive Pass-Through Charges Identification of Subcontractor Effort

252.215-7004 & Alt I

Excessive Pass-Through Charges

252.222-7000

Restrictions on Employment of Personnel

252.223-7001

Hazard Warning Labels

252.223-7002

Safety Precautions for Ammunition and Explosives

252.223-7003

Change in Place of Performance - Ammunition

252.223-7004

DRUG FREE WORKFORCE

252.223-7006

Prohibition on Storage and Disposal of Toxic and Hazardous Materials

252.223-7007

Safeguarding Sensitive Conventional Arms, Ammunition and Explosives

252.223-7008

Prohibition of Hexavalent Chromium

252.225-7001

Buy American Act and Balance of Payments Program

252.225-7002

Qualifying Country Sources as Subcontractors

252.225-7007

Prohibition on Acquisition of United States Munitions list Items from Communist Chinese Military Companies

252.225-7008

Restriction on Acquisition of Specialty Metals

252.225-7009

Restriction on Acquisition of Certain Articles Containing Specialty Metals

252.225-7010

Commercial Derivative Military Article - Specialty Metals Compliance Certificate

252.225-7012

Preference for Certain Domestic Commodities

252.225-7013

Duty-Free Entry

252.225-7014 & Alt. 1

Preference for Domestic Specialty Metals and Alternate 1

252.225-7014 (Dev. No. 2006-O0004) (Dev. No. 2007-O0011) (Dev. No. 2008-O0002)

Preference for Domestic Specialty Metals

252.225-7015

Restriction on Acquisition of Hand or Measuring Tools

252.225-7016

Restriction on Acquisition of Ball and Roller Bearings

252.225-7019

Restriction on Acquisition of Foreign Anchor and Mooring Chain

252.225-7025

Restriction on the Acquisition of Forgings

252.225-7027

Restriction on Contingent Fees for Foreign Military Sales

252.225-7028

Exclusionary Policies and Practices of Foreign Governments

252.225-7030

Restriction on Acquisition of Carbon, Alloy, and Armor Steel Plate

252.225-7031

Secondary Arab Boycott of Israel

252.225-7038

Restriction on Acquisition of Air Circuit Breakers

252.225-7040

Contractor Personnel Authorized to Accompany U.S. Armed Forces Deployed Outside the United States

252.225-7048

Export Controlled Items

252.227-7013

Rights in Technical Data - Noncommercial Items

252.227-7014

Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation

252.227-7015

Technical Data - Commercial Items

252.227-7016

Rights in Bid or Proposal Information

252.227-7017

Identification and Assertion of Use, Release, or Disclosure Restrictions

252.227-7019

Validation of Asserted Restrictions - Computer Software

252.227-7025

Limitation on the Use or Disclosure of Government Furnished Information Marked with Restrictive Legends

252.227-7026

Deferred Delivery of Technical Data or Computer Software

252.227-7027

Deferred Ordering of Technical Data or Computer Software

252.227-7028

Technical Data or Computer Software Previously Delivered to the Government

252.227-7030

Technical Data - Withholding of Payment

252.227-7037

Validation of Restrictive Markings on Technical Data

252.227-7038

Patent Rights - Ownership by the Contractor (Large Business)

252.227-7039

Patents - Reporting of Subject Inventions

252.228-7001

Ground and Flight Risk

252.228-7002

Aircraft Flight Risks" (Include if this clause is in Buyer's prime contract or higher tier subcontract)

252.228-7005

Accident Reporting and Investigation Involving Aircraft, Missiles, and Space Launch Vehicles

252.231-7000

Supplemental Cost Principles

252.235-7003

Frequency Authorization

252.239-7010

Cloud Computing Services

252.239-7016

Telecommunications Security Equipment, Devices, Techniques, and Services

252.244-7000

Subcontracts for Commercial Items and Commercial Components

252.246-7001

Warranty of Data

252.246-7003

Notification of Potential Safety Issues

252.246-7007

Contractor Counterfeit Electronic Part Detection and Avoidance System

252.247-7024

Notification of Transportation of Supplies by Sea

ALSO INCLUDE THE FOLLOWING IN ORDERS OVER $100,000:

252.203-7001

Prohibition on Persons Convicted of Fraud or Other Defense Contract Related Felonies

252.247-7023

Transportation of Supplies by Sea

252.249-7002

Notification of Anticipated Contract Terminations or Reductions (less paragraph (d)(1))

ALSO INCLUDE THE FOLLOWING IN ORDERS OVER $500,000:

252.226-7001

Utilization of Indian Organizations, Indian Owned Economic Enterprises, and Native Hawaiian Small Business Concerns

ALSO INCLUDE THE FOLLOWING IN ORDERS OVER $650,000:

252.219-7003

Small Business Subcontracting Plan (DoD Contracts) (Include Alternate I if included in the prime contract)

252.219-7004

Small Business Subcontracting Plan (Test Program)

252.225-7006

Quarterly Reporting of Actual Contract Performance Outside the United States

ALSO INCLUDE THE FOLLOWING IN ORDERS OVER $1,000,000:

252.222-7006

Restricting the Use of Mandatory Arbitration Agreements. (If this clause is included in Buyer's prime contract or higher tier subcontract, it is applicable to Purchase Orders issued under prime contracts awarded after June 17, 2010, except Purchase Orders for the acquisition of commercial items or the commercially available off-the-shelf items.)

252.225-7033

Waiver of United Kingdom Levies

ALSO INCLUDE THE FOLLOWING IN ORDERS OVER $1,500,000:

252.211-7000

Acquisition Streamlining

 

 

 

 

 

Effective: June, 2015 | Revised: April,  2018

 

 

1. CONTROLLING TERMS AND CONDITIONS. Seller objects to, and is not bound by any term or condition in Buyer’s order which is different from or in addition to the terms and conditions set forth herein, and Seller agrees to sell to Buyer, the goods or services described or referred to herein, only on the express condition that Buyer assents to these terms and conditions. Buyer’s acceptance is limited to the exact terms and conditions set forth herein, and any additional or different terms or conditions proposed by Buyer are hereby expressly rejected. If the document referring to these terms and conditions is construed as an expression of acceptance or as a confirmation of a verbal agreement, such acceptance or confirmation is expressly made conditional on the assent of the Buyer to the terms and conditions set forth herein. Any confirmatory action by Buyer hereunder or any acceptance of the goods or services described or referred to herein shall constitute assent to the terms and conditions set forth herein. If the document referring to these terms and conditions is an offer, the offer is expressly conditioned upon assent by Buyer to the exact terms and conditions set forth herein, and any additional or different terms or conditions proposed by Buyer are hereby expressly rejected.

 

2. QUOTATIONS, CHANGES, AND CANCELLATION. Quotations are valid and firm for fifteen (15) days unless otherwise stated. No terms, conditions, description, price, quantity, or delivery schedule may be changed by Buyer, and no agreement or understanding in addition to or different from the terms and conditions set forth herein shall be binding upon Seller, unless accepted in writing by Seller’s authorized representative. Buyer may not, under any circumstances or for any reason, cancel its order or any part thereof, unless Seller has received written notice of the cancellation more than thirty (30) days prior to the shipping date last agreed upon by Seller for the order or the portion thereof being cancelled and such cancellation has been agreed to in writing by Seller’s authorized representative. In the event of any such cancellation of any order by Buyer, Buyer shall reimburse Seller for all costs and expenditures made or committed to be made by Seller as a result of Buyer’s order, as well as reasonable overhead costs and profits lost because of such cancellation.

 

3. ACCEPTANCE. Buyer shall immediately and irrevocably accept goods and services when tendered. If Buyer refuses to receive or take possession of such goods and services when tendered, Seller may exercise any or all of the remedies afforded to sellers by section 2-703 et seq. of the Uniform Commercial Code, in addition to any or all remedies provided by law. Seller shall have no obligation to hold or resell such goods for Buyer’s account.

 

4. REPRESENTATION OF SOLVENCY. By placing its order, Buyer represents that it is not insolvent as that  term is defined in section 1-201(23) of the Uniform Commercial Code. In the event that Buyer becomes insolvent as defined in section 1-201(23) prior to delivery of goods, it will notify Seller. Failure to so notify Seller shall constitute a written reaffirmation of Buyer’s solvency at the time of delivery.

 

5. WARRANTY. Seller warrants for a period of twelve (12) months from the product date code that the goods shall be of the kind and quantity ordered, shall conform to the specifications provided by Buyer, and shall be free from defects in material and workmanship. The sole and exclusive remedy for breach of Seller’s warranty is set forth in this Section 5.

 

Buyer shall inspect goods within fifteen (15) days after delivery of such goods to their shipping destination. In the event goods fail to conform to the kind and quantity ordered, or to the specifications provided by Buyer, or are not free from defects in material or workmanship, if Buyer notifies Seller of such nonconformity or defects within ten (10) days after Buyer’s inspection, then Seller shall, at Seller’s option, repair or replace such goods found in fact to be nonconforming. Replace means to provide substitute goods of similar kind. Before returning any items to Seller, Buyer shall request return authorization from Seller, and shall follow all reasonable instructions with respect to the return. Unless otherwise instructed, Buyer shall return by prepaid shipment all allegedly nonconforming goods, subject to reimbursement by Seller for the cost of shipping such goods found in fact to be nonconforming. Seller’s warranty is voided if Buyer fails to inspect or fails to provide notification as required above if defects in material or workmanship or a failure to conform to specifications could have been detected by such inspection. Goods may not be rejected based on specifications or criteria that were unknown to Seller.

 

EXCEPT AS SET FORTH IN THIS SECTION 5, SELLER EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR PURPOSE OR USE, AGAINST INTELLECTUAL PROPERTY INFRINGEMENT, OR OTHERWISE.

 

Seller makes NO WARRANTY with respect to any goods that have damage, nonconformity, or failures resulting from accident, disaster, neglect, abuse, misuse, alteration, modification, improper handling, testing, storage or installation. To the extent that any Buyer-designated material or components are alleged or found to be non- conforming, Seller shall have no liability to Buyer, provided, however, that to the extent possible and upon reasonable request of Buyer, Seller shall assign Seller’s claims against such supplier of the non-conforming material or components.

 

6. LIMITATIONS OF LIABILITY.

 

NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY (EXCEPT FOR SELLER’S OBLIGATION TO REPAIR OR REPLACE AS SET FORTH IN SECTION 5), THE EXTENT OF LIABILITY OF SELLER ARISING OUT OF THE GOODS OR SERVICES, OR THEIR USE (WHETHER USED SINGLY OR IN COMBINATION WITH OTHER PRODUCTS), WHETHER ARISING FROM WARRANTY, CONTRACT, NEGLIGENCE OR OTHERWISE, SHALL NOT IN ANY CASE EXCEED THE VALUE OF SELLER’S PRODUCT GIVING RISE TO THE LIABILITY. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE TO BUYER FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR INCIDENTAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY TYPE OF INTANGIBLE LOSS, LOST GOODWILL OR BUSINESS REPUTATION, LOST PROFITS, LOSS OF USE, LOSS OF DATA, WORK STOPPAGE, LIABILITY OF BUYER TO ITS CUSTOMERS OR OTHERS, IMPAIRMENT OF OTHER PRODUCTS, OR COST OF SUBSTITUTE PRODUCTS OR SERVICES, WHETHER ARISING OUT OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, OR ANY OTHER THEORY OF LIABILITY.

 

Any litigation asserting a claim against Seller must be commenced within twelve (12) months of the date of shipment by Seller.

 

7. DELIVERY AND FORCE MAJEURE. Each delivery shall stand as a separate sale and is subject to credit arrangements to the satisfaction of Seller, or to payment in cash. If payments are not made in accordance with such arrangement, or if at any time Seller in its judgment determines that Buyer’s credit standing has been impaired, Seller may withhold delivery of any goods until cash or credit arrangements satisfactory to Seller have been established. All delivery dates specified by Seller are approximate and are based on its best estimate and are subject to change due to conditions beyond its reasonable control, including without limitation: (i) acts of God, unforeseeable circumstances, acts (including delay or failure to act) of any governmental authority (de jure or de facto), government regulation, war (declared or undeclared), riot, revolution, civil disobedience, unrest, acts of terrorism, priorities, fires, strikes, explosions, floods, quarantine restrictions, sabotage, or epidemics; (ii) inability to timely obtain, at normal prevailing market prices, necessary or suitable labor, material, components, energy, manufacturing facilities, or transportation; and (iii) any other cause beyond Seller’s reasonable control if by reason thereof Seller is unable to supply the total quantity of goods to be delivered hereunder. Seller may make partial delivery of Buyer’s order, or may distribute the available supply of goods among any or all of Seller’s customers on such basis as it may deem appropriate without liability for any failure of performance which may result therefrom. In the event of any delay, the date of delivery shall be extended for a period equal to the time lost by reason thereof.

 

8. NO REQUIREMENTS CONTRACTS. Seller shall not, under any circumstances, be bound to provide Buyer’s requirements of goods, and to the extent that Seller’s costs increase, Seller may increase prices or refuse to deliver goods at formerly acknowledged prices.

 

9. PAYMENT, TITLE, AND RISK OF LOSS. Payment is to be made by Buyer in United States dollars or other medium of exchange acceptable to Seller, upon presentation of invoice to Buyer by Seller, subject to the terms and conditions of payment stated therein. On any invoice not timely paid, Buyer shall pay interest from due date to date of payment at the rate of 1.5% per month or the highest rate allowed by applicable law, whichever is less. Seller’s prices are subject to change upon fifteen (15) days’ notice. Seller’s prices are quoted FCA (as defined by INCOTERMS® 2010) Seller’s facility, and all shipments of goods shall be FCA Seller’s facility, unless otherwise mutually agreed in writing by authorized representatives of Buyer and Seller. For purposes of transfer of title and risk of loss of all goods subject to these terms and conditions, the parties agree and acknowledge that the transfer of title and the risk of loss of all such goods shall pass from Seller to Buyer at Seller’s Facility. For all return shipments from Buyer to Seller, Buyer shall return all goods DDP (as defined by INCOTERMS® 2010) Seller’s facility with title to the goods and risk of loss transferring from Buyer to Seller upon delivery of the goods to Seller at Seller’s facility. Seller’s prices do not include sales, use, excise, value added, custom duties, or other similar taxes. Any present or future taxes applicable to the shipping destination, sale of the goods by Seller or the sale or use of the goods by Buyer, shall be paid by Buyer. Prices do not include qualification or other testing.

 

Seller shall have no obligation to make any further shipments until all payments for prior shipments have been received by Seller. The existence of a claim or dispute between Buyer and Seller does not relieve Buyer of the obligation to remit payment in full to Seller, and Buyer has no right of set-off. Furthermore, Seller may suspend production until payment is received, and may suspend production if Buyer is in default under this or any other contract with Seller.

 

10. SPECIAL TOOLING. In the event that Seller manufactures or purchases special tools, dies, or equipment in connection with Buyer’s order, such tools, dies, and equipment, unless otherwise agreed to in writing by Seller’s authorized representative, shall remain the exclusive property of Seller, notwithstanding that part of the cost thereof is included as a part of the specified price.

 

11. EXCESS AND OBSOLETE MATERIAL. Buyer assumes the responsibility for all material costs (plus mark- up) of materials purchased to support open purchase orders. Because of industry requirements for materials to be purchased in minimum quantities for reels or set quantities, excess materials may be purchased to support an order. Seller will carry the excess material provided that demand orders are placed that continues to consume the excess material. Any excess or obsolete material with no demand in the prior sixty (60) days will be billed to Buyer. The excess and obsolete material will then be, at the Buyer's option, moved to the Seller's consigned inventory stock and marked with the Buyer's part numbers, or shipped as a deliverable item to the Buyer. On the occasion that no new purchase orders are issued to the Seller within sixty (60) days to continue consumption of material, the subject material will be considered obsolete for purposes of this contractual arrangement. Seller will invoice Buyer for the material costs, plus mark-up.

 

12. INFORMATION DISCLOSED BY SELLER. Any knowledge or information that Seller has disclosed or may hereafter disclose to Buyer, or which may hereafter be acquired by Buyer, in connection with Seller’s goods or services, shall be deemed to be confidential or proprietary information of Seller and shall not be disclosed by Buyer. Any technical advice or recommendation made by Seller concerning the goods is intended for use by persons having appropriate skill, know-how, and judgment in the selection, uses, and applications of such goods. Buyer represents that it is not relying upon such technical advice or recommendations, nor the skill or judgment of Seller, in selecting suitable goods for Buyer’s use or application.

 

13. INTELLECTUAL PROPERTY. Buyer shall defend, indemnify, and hold harmless Seller from and against all claims and liabilities resulting from allegations that, because of Buyer-supplied designs, specifications, processes, information, or documentation, any goods or portion thereof infringe any third party intellectual property right or result in unfair competition, and also from allegations that product liability has resulted from any Buyer-supplied designs, specifications, processes, information, or documentation.

 

14. ASSIGNMENT. Buyer shall not assign any interest herein or any rights or obligations hereunder without the written consent of Seller’s authorized representative, which consent may be withheld or delayed for any reason or no reason.

 

15. RoHS COMPLIANCE. If Buyer requests that Seller use any non-RoHS (Restriction of Hazardous Substances Directive) compliant material, Buyer shall defend, indemnify, and hold harmless Seller from any losses, damages, and costs relating to Buyer’s request and/or the use of such material.

 

16. WAIVER OF TERMS AND CONDITIONS. The failure of Seller in any one or more instances to insist upon performance of any term or condition set forth herein or to exercise any right or privilege hereunder, or the waiver by Seller of any breach by Buyer of these terms or conditions, shall not be construed as generally waiving any term, condition, right, or privilege, and these terms and conditions shall continue and remain in full force and effect as if no failure or waiver had occurred.

 

17. GOVERNING LAW/CHOICE OF FORUM. These terms and conditions and referencing documents (collectively, the “Contract”) shall be construed under and governed by the laws of the State of Delaware without regard to its conflicts of laws principles. Buyer and Seller hereby irrevocably consent to the exclusive jurisdiction and venue of either the state courts in Delaware or the federal District Court in Delaware, for all disputes arising hereunder. NEITHER THE PROVISIONS OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS NOR THE PROVISIONS OF THE UNITED NATIONS CONVENTION ON THE LIMITATION PERIOD IN THE INTERNATIONAL SALE OF GOODS SHALL APPLY TO THIS CONTRACT.

 

18. SEVERABILITY. Whenever possible, each provision of this Contract shall be interpreted in such manner as to be effective and valid under applicable law. If any of the provisions in this Contract are determined to be unenforceable by reason of extent, scope, duration, or otherwise, then the parties agree that the court hearing the matter shall reduce such provision only to the extent necessary for enforcement. If the choice of law provision set forth herein is not enforced, then the parties agree that the court hearing the matter shall enforce the provisions of this Contract to the fullest extent possible under applicable law. If any provision of this Contract shall be deemed prohibited or invalid under applicable law, said provision shall be ineffective only to the extent of said prohibition or invalidity, and said prohibition or invalidity shall not invalidate the remainder of said provision or any other provision of this Contract.

 

19. ENTIRE AGREEMENT. This Contract can only be modified, terminated, or rescinded in writing by Seller’s authorized representative. This Contract constitutes the entire agreement between Seller and Buyer with respect to the goods and services covered hereby and supersedes any prior or other agreements, written or oral, between Buyer and Seller, concerning the subject matter hereof. The provisions of Sections 2, 3, 5, 6, 9, 10, 11, 12, 13, 14, 15, 16, 17, and 18 shall survive the cancellation, expiration or termination of this Contract.

 

20. PAYMENT TERMS. Payment terms are net thirty (30) days.

 

Effective: June, 2015 | Revised: June, 2015


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