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- Offer, Acceptance and Conflicting Terms:
This document is an offer and is neither an expression of acceptance
nor a confirmation document. This offer is expressly limited
to the terms hereof and will become a binding contract according to
its terms
and conditions between Buyer and Seller upon Seller’s acceptance
hereof. Seller’s commencement of performance of this order or
Seller’s written acknowledgement hereof will be effective acceptance.
In addition to the terms and conditions set forth in this
document this contract shall include any of the following written items
specifically
incorporated by buyer’s reference herein. Supplemental documents,
specifications, notes, instructions, engineer’s notices, technical
data, any terms and conditions different from or in addition
to the terms and condition of this offer whether or not such different
or
additional terms and conditions materially alter the terms
of this offer are hereby objected to by Buyer and waived by Seller.
Any additions
to, changes to, modifications of or revision of the terms
and conditions of this purchase order proposed by Seller are rejected
unless expressly agreed to in writing by Buyer.
- Entire Contract, Waiver:
This contract sets forth the entire understanding of the parties
with respect to the subject matter hereof. No waiver or modification
of any provision of this contract shall arise or be binding
upon buyer unless made in writing duly executed by Buyer’s properly
designated representatives, and waiver of any one default shall not
waive subsequent
defaults.
- Prices and Discounts:
Buyer shall be granted any price reductions applicable that occur after the P.O has been issued and product/service delivered.
Within the P.O., this Order is to be filled at prices no higher than those agreed
to herein. The Buyer shall not be billed for any extra charges,
including without limitation, packaging, storage and handling,
unless shown on
the face hereof, Buyer’s payment does not constitute acceptance
of the goods. Buyer will accept not C.O.D. deliveries. The cash
discount period available to Buyer shall run from the date of receipt
of an invoice
conforming to the instructions herein or receipt of the goods
at the agreed destination, whichever occurs last.
- Deliver; Performance in Excess or Advance:
Time is of the essence in this order and deliveries are to be
made both in quantities and at time(s) specified herein. If
Seller’s
deliveries fail to meet schedule, Buyer, without limiting its
other rights or remedies, may direct expedited routing and any excess
costs incurred
thereby shall be at Seller’s expense. Buyer may in accordance with
Paragraph 7 (Cancellation) cancel all or part of this order
in the event Seller fails to deliver goods (which term throughout this
order includes
without limitation raw material, components, intermediate assemblies
and supplies) or perform services as scheduled. Buyer shall
not be liable in the event of cancellation or change in this order for
Seller’s
commitments or production arrangements in excess of the amount,
or in advance of the normal flow time necessary to meet schedule. If
goods
are delivered in advance of schedule, Buyer may at its option,
either (i) return them at Seller’s expense for proper delivers,
or (ii) make payment based upon the date that the goods are actually
scheduled
for delivery but retain the goods, or (iii) place the goods
in storage for Seller’s account until the delivery date specified
herein.
- Risk of Loss:
Risk of loss shall pass to buyer only upon its receipt or constructive
receipt of a conforming delivery at the specified destination.
- Changes:
Buyer may at any time, by written change notice and without
notice to sureties, make changes in any of the following: (I)
drawings, designs or specifications where the goods to be furnished
are to be specifically
manufactured for Buyer in accordance therewith, (II) the method
of shipment or packing, and (III) the place of delivery. Seller
shall comply therewith
as soon as possible. If any such change causes an increase or
decrease in the cost of, or the time required for, any performance
under this
order, an equitable adjustment shall be made in the price or
delivery schedule, or both, and this order shall be modified
accordingly. Any
claim by Seller for adjustment under this clause must be asserted
if at all, within thirty (30) days from the date of receipt
by Seller or
the notification of change, provided, however, that Buyer, if
it determines in its sole discretion that the facts justify
such action, may receive
and act upon any such claim asserted at any time prior to finally
payment hereunder. Where the cost property made obsolete or
excess as a result
of a change is included in Seller’s claim for adjustment. Buyer
shall have the right to prescribe the manner of disposition
of such property. Failure to agree on any claim for equitable adjustment
under this clause
shall be a dispute and either party may thereupon pursue any
remedy, which it may have in any court or competent jurisdiction. Pending
the
resolution of any such dispute and not withstanding its existence,
Seller shall diligently pursue the performance of this order as changes.
- Cancellation:
Buyer reserves the right to cancel this order in whole or in
any commercially reasonable part upon the occurrence of any
of the following:
(a) Seller fails to perform any of the provisions of this Purchase
Order in any material respect, or
(b) Seller fails to make reasonable progress so as to endanger
performances of this contract in accordance with its terms,
or
(c) Seller becomes insolvent (under any legal definition), or
(d) Buyer reasonably believes that any of the foregoing has
occurred and the Seller cannot give contrary assurance in good
faith.
In the event of a cancellation or other termination of
this contract, Buyer’s total obligation shall in no event exceed
the contract price stated herein, as it may be adjusted according
to Paragraph
6 (Changes) hereof.
- Packaging and Labeling:
All items are to be suitably boxed, wrapped or coated so as
to be protected against hazards of shipment, storage and exposure.
Different types of merchandise shall be separately packed, and
packages shall be
labeled to show the number of this Purchase Order, weight and
name of item. Itemized packing slips showing the number of this
Purchase Order
must accompany each delivery. Buyer’s count shall be conclusive
in the absence of a packing slip.
- Assignment:
Unless otherwise indicated by the terms of this contract, Seller
may not assign or subcontract all or any portion of this order
without the prior written consent of Buyer. This limitation
shall not apply to
the purchase of standard commercial supplies or raw material.
Claims for monies due or to become due hereunder may be assigned
by Seller, provided that Seller promptly supplies buyer with
copies of any such
assignment and provided further that payment to an assignee
of any sum due hereunder shall be subject to setoff or recoupment
by
the amount
of any present or future claims which Buyer may have against
Seller.
- Warranty:
Seller warrants that all services and articles will be merchantable,
and will be free from defect in material and workmanship, and
will conform to applicable specifications, drawings, or descriptions
furnished by
Buyer. If Seller is responsible for design of the services(s)
or articles(s) according to the performance specifications established
by Buyer, Seller
warrants that same will be fit and sufficient for the purposes
intended by Buyer. Buyer’s approval of designs furnished by Seller
shall not relieve Seller of its obligations under this paragraph. The
warranties
of Seller, together with its service guarantees, shall survive
inspection, test and acceptance and shall run to Buyer and its customers.
This warranty
is in addition to warranties created by operation of law.
- Inspections, Tests, Rejection:
Irrespective of prior payment, all items delivered hereunder
will be subject to final inspection and approval at the premises
of the Buyer either upon delivery or when operating tests are
possible after
incorporation into Buyer’s products or equipment. Seller agrees
to maintain prudent inspection and quality control systems.
If the services or goods ordered herein do not meet the specifications
required by this
contract or otherwise do not meet requirements of this contract,
Buyer shall have the right to reject same in good faith. Goods rightly
rejected
after delivery may, all at buyer’s option, be returned to Seller
either for reimbursement, credit, replacement or correction
or be corrected or replaced by Buyer, all at the Seller’s expense
including transportation both ways. Buyer may dispose of any such goods
in any reasonable manner
at its option.
- California Law:
This contract shall be construed and its terms interpreted in
accordance with the laws of the State of California.
- Taxes:
Seller’s prices shall be exclusive of any Federal, State or local
sales, use or excise taxes levied upon, or measured by, the
sale, the sales price, or use of goods in the performance of this order.
Seller
shall list separately on its invoice any such tax applicable
to any such goods, and payable by Buyer with respect to which Buyer does
not furnish
to Seller evidence of exemption. Seller agrees to comply with
any reasonable request by Buyer regarding payments under protest and
regarding any refunds,
claims, litigation or proceedings with respect to any such taxes
and to make appropriate adjustments to afford Buyer the benefit of any
refund
or reduction in such taxes.
- Buyer’s Drawings and Data:
Seller shall keep confidential all information, drawings, specifications,
or data furnished by Buyer and shall not divulge or use such
information, drawings, specifications or data for the benefit
of any other party,
and except as required for the performance of this order, Seller
shall not make copies or permit copies thereof to be made without
the prior
written consent of Buyer. Seller shall thereafter make no further
use either directly or indirectly of any such data or of any
information derived therefrom without obtaining Buyer’s prior written
consent.
- Use of Seller’s information:
Seller agrees that all information herefor or hereafter furnished
or disclosed to Buyer by Seller. In connection with the placing
or filling of this order. Is furnished or disclosed as a part
of the consideration
for this order, that such information is not unless otherwise
agreed to by Buyer in writing, to be treated as confidential
or limiting the
use or disclosure of, information so furnished or disclosed.
- Disclosure of Contract:
Seller shall not in any manner advertise or publish the fact
that it has furnished, or contracted to furnish, Buyer the goods
or services herein purchased without the prior written consent
of buyer.
- Buyer’s Property:
Title to Buyer furnished property shall remain in buyer, Seller
shall not alter or use such property for any purpose other than
that specified by Buyer or for any person other than Buyer,
without the prior
written consent of buyer. Seller shall keep adequate records
respecting such property which shall be made available to buyer
upon request, and
Seller shall store, protect, preserve, repair and maintain such
property in accordance with sound industrial practices, all
at Seller’s
expense. In the event that Buyer furnished property becomes
lost or damaged to any extent while in Seller’s possession, Seller
agrees to indemnify Buyer or replace such property at Seller’s
expense, in accordance with buyer’s request after notice to buyer.
Upon the completion or termination of an order for which buyer furnished
property was required,
Seller shall request disposition instructions for all such property,
or the remainder thereof, whether in its original form or in
semi-processed from. Seller agrees to make such property available to
Buyer at buyer’s
request, in the manor requested by buyer, including preparation,
packaging and shipping as directed. Expenses for preparation for shipment
will
be paid by Seller and shipment shall be made F.O.B. destination.
- Excusable Delays:
Whether a delay in performance is a default and the remedies
available therefore shall be governed by the Commercial Code
of California.
- Compliance with Laws:
Seller will comply with all valid Federal, State and local laws
and all ordinances and regulations applicable to the manufacture,
sale delivery and labeling of the goods ordered and in the performance
of
any work pursuant hereto.
- Disputes – Remedies:
With respect to any dispute arising hereunder, which is not
disposed of by agreement, either party may pursue any remedy
which it may have in any court of competent jurisdiction. Pending
the resolution
of any such dispute, Seller shall diligently pursue the performance
of this contact. The remedies provided Buyer herein shall be
cumulative and in addition to any other remedies provided by
law or equity. A failure
by buyer to enforce its rights hereunder shall not be deemed
a waiver or other rights or the same right as it applies to
separate
subject matter.
- Notice of Labor Disputes:
Whenever Seller has knowledge that any actual or potential labor
dispute is delaying, or threatens to delay the timely performance
of this order, Seller shall immediately give written notice
thereof, including
all relevant information with respect thereto Buyer. Seller
agrees to insert the substance of this paragraph including this
sentence in any
subcontract hereunder.
- Patent Indemnity:
Seller agrees to Indemnify Buyer and its customers against any
liability including costs and expenses, for or by reason of
any actual or alleged patent infringement arising out of the
manufacture, use, sale
or disposal of supplies or articles furnished under this Purchase
Order, except where such supplies or articles would be normally
non-infringing but are rendered infringing, by reason of Seller’s compliance with
buyer’s detailed design and stated requirement for specific structure
and Seller gives prompt notice of any claim of infringement related thereto.
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