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.
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 60 days, unless otherwise stated on the face of the Purchase Order, from the later of:
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:
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:
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:
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.
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.
Buyer may at any time make changes within the general scope of the Purchase Order in any one or more of the following:
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:
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:
Right of Access: When provided with reasonable written notice, seller shall grant right of access to facilities and applicable records pertaining to Buyer’s purchase orders when requested by Buyer, Buyer’s customer or regulatory agencies.
Flow down Requirement: Supplier shall require all of its subcontractors and sub-tier suppliers to comply with Buyer’s requirements as outlined in these terms and conditions, or specifically outlined in the purchase orders and other applicable documents. Seller shall provide Certificates of Compliance to latest revisions of material specification or surface plating services with lot number traceability per IPC 6010 Series. Including all technical and quality management system requirements stated on purchase order - ISO 9001 or equivalent. All PCB supplied services must comply to with ITAR Requirements.
Record Retention: Suppliers shall maintain records pertinent to Buyer’s transactions, processing, inspection performed and certifications for a period of not less than 10 years or as otherwise stated on purchase order. All said records will be made available to Buyer on request during this period.
RoHS Compliance: Seller expressly warrants that all goods supplied to Buyer comply with the EU directive on the restriction of the use of certain hazardous substances (RoHS) in electrical and electronics equipment, directive 2002/95/EC. Seller may not ship RoHS noncompliant goods without obtaining prior written authorization from Buyer Purchasing. If Seller’s goods do not meet these requirements, and Purchasing approved purchase, Seller shall mark this purchase order as “RoHS Non-Compliant” and email to Buyer’s Purchasing Department on the face of the purchase order. Seller’s goods shipped to Buyer without notification of non-compliance is Seller’s express communication of compliance with the RoHs directive.
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:
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.
Buyer may, during regular business hours and after reasonable notice, access any of Seller's premises to examine:
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:
All such warranties, as well as Seller's original warranties, shall have a warranty period that is the longer of:
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:
Seller shall defend, indemnify and hold harmless the Buyer and its affiliates, 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:
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.
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.
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:
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.
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.
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.
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.
The Purchase Order shall be construed under and governed by the laws of the State of California 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.
20.1. 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 Orange County, California or the federal District Court for the Southern District of Missouri, Southern Division, 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 cannot 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 Orange County, California, 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 in Orange County, California or the federal District Court for the Southern District of California, Southern Division, 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-convenient, 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.
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.
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.
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.
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.
