1. ACCEPTANCE OF TERMS.
1.1 Seller agrees to be bound by and to comply with all terms set forth herein and in the
purchase order, to which these terms are expressly incorporated by reference
(collectively, the “Order”), including any amendments, supplements, specifications and
other documents referred to in this Order. Acknowledgement of this Order, including
without limitation, by beginning performance of the work called for by this Order, shall be
deemed acceptance of this Order. The terms set forth in this Order take precedence over
any alternative terms in any other document connected with this transaction unless such
alternative terms are: (a) part of a written supply agreement (“Supply Agreement”), which
has been negotiated between the Parties and which the Parties have expressly agreed
may override these terms in the event of a conflict and/or (b) set forth on the face of the
1.2 In the event these terms are part of a written Supply Agreement between the Parties, the
term “Order” used herein shall mean any purchase order issued under the Supply
1.3 This Order does not constitute an acceptance by Buyer of any offer to sell, any quotation,
or any proposal. Reference in this Order to any such offer to sell, quotation or proposal
shall in no way constitute a modification of any of the terms of this Order. SELLER’S
ACCEPTANCE OF THIS ORDER IS EXPRESSLY LIMITED TO THE TERMS AND
CONDITIONS OF THIS ORDER. ANY ATTEMPTED ACKNOWLEDGMENT OF THIS
ORDER CONTAINING TERMS INCONSISTENT WITH OR IN ADDITION TO THE
TERMS OF THIS ORDER IS NOT BINDING UNLESS SPECIFICALLY ACCEPTED BY
BUYER IN WRITING. IF THIS ORDER IS CONSTRUED TO BE AN ACCEPTANCE BY
BUYER OF AN OFFER BY SELLER, BUYER EXPRESSLY LIMITS SUCH
ACCEPTANCE TO THE EXPLICIT TERMS OF THIS ORDER AND REJECTS ANY
ADDITIONAL OR VARIED TERMS SET FORTH IN SELLER’S OFFER. NOTHING IN
THIS ORDER WILL INDICATE THAT THIS ORDER IS AN ACCEPTANCE; RATHER,
IT WILL BE CONSTRUED TO BE AN OFFER TO THE EXTENT POSSIBLE. BUYER
HEREBY OBJECTS TO ANY ATTEMPT BY SELLER TO ADD TO OR VARY ANY
TERM OF THIS ORDER AND EXPRESSLY REJECTS ALL SUCH MODIFICATIONS
UNLESS AGREED TO IN WRITING BY BUYER.
2. DELIVERY AND PASSAGE OF TITLE.
2.1 All goods ordered shall be subject to inspection or verification by Buyer or its authorized
agent (a) during the period of manufacture, (b) prior to shipment, and (c) at destination,
notwithstanding any prior payment, inspection or terms of shipment. Inspection by Buyer
or its authorized agent, failure of Buyer or its agent to make adequate inspection, or
acceptance by Buyer shall in no event limit or discharge the obligations of Seller to
comply with the provisions of this Order. Payment for any goods here under shall not
be deemed acceptance thereof. All risk of loss or damage to the goods will remain
Seller’s until delivered to and accepted by Buyer at the point specified in the Order,
unless Buyer and Seller agree otherwise in writing.
2.2 Title to the goods shall pass to Buyer no later than the time of delivery provided that any
passing of title shall not prejudice either Buyer’s right to reject Nonconforming Goods or
any other right that Buyer may have; and in those instances where advances or progress
payments are made, title, but not risk of loss or damage, shall pass to Buyer as soon as
items are identified to the Order. All items so identified shall be adequately marked and
recorded as being the property of Buyer. “Nonconforming Goods” shall mean any goods
that fail to conform in any respect to one or more of the warranties set forth in Section 8
or any other requirement of this Order.
2.3 Each package shall be numbered and labeled with Buyer’s Order number and unit
shipped to, shall contain an itemized packing list, and shall be properly packaged for
shipment to protect against damage and deterioration. No charges of any kind including
charges for inspection or for packaging, crating, freight, express or cartage will be
allowed unless specified on the face of the Order. Unless otherwise provided in the
Order, all containers and packing supplied by Seller shall be considered as nonreturnable and their cost shall be included in the price.
3. PRICES AND PAYMENT.
3.1 Except as otherwise provided in Section 4, all prices are firm and shall not be subject to
change. Seller’s price includes all payroll and/or occupational taxes, any value added tax
that is not recoverable by Buyer and any other taxes, fees and/or duties applicable to the
goods and/or services purchased under this Order; provided, however, that any state and
local sales, use, excise and/or privilege taxes, if applicable, will not be included in Seller’s
price but will be separately identified on Seller’s invoice. If Seller is obligated by law to
charge any value added and/or similar tax to Buyer, Seller shall ensure that if such valueadded and/or similar tax is applicable, that it is invoiced to Buyer in accordance with
applicable rules so as to allow Buyer to reclaim such value-added and/or similar tax from
the appropriate government authority. Neither Party is responsible for taxes on the other
Party’s income or the income of the other Party’s personnel or subcontractors. If Buyer is
required by government regulation to withhold taxes for which Seller is responsible,
Buyer will deduct such withholding tax from payment to Seller and provide to Seller a
valid tax receipt in Seller’s name.
3.2 Invoices shall be payable within ninety (30) days from the date a correct invoice is
received and approved by Buyer. Unless otherwise requested by Buyer, invoices shall (a)
be rendered separately for each delivery, (b) cover not more than one Order, (c) be
rendered with the Order number noted thereon, and (d) be accompanied by a copy of
receipt of transportation charges. If the invoice is subject to cash discount, the discount
period will be calculated from either the date all goods ordered are received by Buyer or
the date the invoice is received by Buyer, whichever occurs later. Buyer may withhold
any amounts that are disputed in good faith. Unless specifically agreed otherwise in
writing all prices shall be fixed, firm and not subject to any form of surcharge or variation.
Progress payments, if agreed to, are subject to the condition that payment will be made
when items have been allocated to the Order and title has passed to Buyer, free from any
third party claims.
For a period of five (5) years from the date of this Order, Seller shall maintain and
preserve and shall cause its sub-vendors to maintain and preserve in accordance with
generally accepted accounting principles (“GAAP”) accurate documentation and data
concerning all cost-reimbursable goods or work provided hereunder. At all reasonable
times during such period Seller shall permit and cause its sub-vendors to permit the
representatives of Buyer to have access to its and their offices and work locations to
examine, reproduce and retain copies of such documentation and data to verify all costreimbursable goods or work including any change orders.
4. MOST FAVORED CUSTOMER.
Seller represents and warrants to Buyer that the terms and conditions of this Order are at least as
favorable to Buyer as those applicable to any other customer of Seller, and the price paid by
Buyer (the “Price”) is not higher than the price charged to any other customer of Seller (including,
but not limited to, any Governmental Authority) for products of like grade and quality. If Seller
offers to any of its customers, or agrees to, terms and conditions more favorable than those set
forth in this Order or a price for products of like grade and quality lower than the Price, this Order
will automatically be revised so as to conform to the requirements of this Section 4.
5. TIME IS OF THE ESSENCE.
The terms and conditions for shipment are stated on the face of the Order. The time stipulated for
delivery of the goods in the Order shall be of the essence, and failure of Seller to complete
delivery of the goods herein ordered within the time specified, or within a reasonable time if no
time is specified, shall, at the option of Buyer, without liability, in addition to Buyer’s other rights or
remedies, relieve Buyer of any obligation to accept and pay for any such goods. Without
prejudice to Seller’s obligation to deliver the goods on time, Seller shall give Buyer notice in
writing immediately if any delay is foreseeable. Buyer shall not be required to make any payment
in respect of goods shipped by Seller in advance of this specified shipping date until the date
specified in this Order for such goods.
6. INDIRECT AND CONSEQUENTIAL DAMAGES.
Neither party shall be liable to the other for any indirect, incidental or consequential losses or
damages of any type or for loss of profit, loss of use, loss of business, or loss of financial
advantage unless such loss or damage is due to the gross negligence or willful misconduct of
such party or its supplier(s).
If any of the goods and/or services furnished pursuant to this Order are found within a reasonable
time after delivery to be defective or Nonconforming Goods, including any applicable drawings
and specifications, whether such defect or non-conformity relates to scope provided by Seller or a
direct or indirect supplier to Seller, then Buyer, in addition to any other rights, remedies and
choices it may have by law, contract or at equity, and in addition to seeking recovery of any and
all damages and costs emanating therefrom, at its option and sole discretion and at Seller’s
expense may (a) require Seller to immediately re-perform any defective portion of the services
and/or require Seller to immediately repair or replace Nonconforming Goods with goods that
conform to all requirements of this Order, (b) take such actions as may be required to cure all
defects and/or bring the goods and/or services into conformity with all requirements of this Order,
in which event all related costs and expenses (including, but not limited to, material, labor and
handling and any required re-performance of value added machining or other services) and other
reasonable charges shall be for Seller’s account, (c) withhold total or partial payment, (d) reject
and return all or any portion of such goods and/or services, and/or (e) rescind this Order without
liability. For any repairs or replacements, Seller, at its sole cost and expense, shall perform any
tests requested by Buyer to verify conformance with this Order.
Seller warrants that all goods and services provided pursuant to this Order, whether provided by
Seller or a direct or indirect supplier of Seller, will be free of any claims of any nature, including
without limitation title claims, and will cause any lien or encumbrance asserted to be discharged,
at its sole cost and expense, within thirty (30) days of its assertion (provided such liens do not
arise out of Buyer’s failure to pay amounts not in dispute under this Order or an act or omission of
Buyer). Seller warrants and represents that all such goods and services will be new and merchantable quality, not used, rebuilt or made of refurbished material unless approved in writing
by Buyer, free from all defects in design, workmanship and material and will be fit for the
particular purpose for which they are intended. Seller acknowledges that it is fully aware of the
purposes for which Buyer intends to use the goods and therefore further represents and warrants
that all goods will be suitable for, and will accomplish, such purposes. Seller expressly warrants
that all goods delivered in connection with this Order will conform to any sample or any
specifications, drawings or other description furnished or adopted by Buyer. Seller will assign to
Buyer any manufacturers’ or other warranties applicable to the goods and will cooperate with
Buyer in enforcing such warranties. The warranty herein shall also apply to any replaced or
corrected goods. The design, manufacture, production, testing, sale and delivery of the goods
and Seller’s performance of its obligations under this Order will comply with all applicable laws.
Any attempt by Seller to limit, disclaim or restrict any such warranties or remedies by
acknowledgment or otherwise shall be null, void and ineffective.
9.1 Buyer may, at any time, by written notice to Seller, make changes within the general
scope of this Order, in any one or more of the following: (a) drawings, designs or
specifications, (b) method of shipping or packing, (c) place of inspection, acceptance or
point of delivery, (d) delivery schedule, (e) amount of Buyer’s furnished equipment or
property, (f) quality, (g) quantity, or (h) scope or schedule of goods and/or services.
9.2 Should any such change increase or decrease the cost of or the time required for the
performance of this Order, an equitable adjustment may be requested by Seller or Buyer
in the price, delivery schedule or both. No claim by Seller for such adjustment shall be
valid unless submitted to Buyer in writing within thirty (30) days from the date of such
change. Every claim must be accompanied by a detailed estimate of charges for
redundant materials, work in progress, or both. Nothing contained in this Section 14 shall
relieve Seller from proceeding without delay in the performance of the Order as changed.
Any change to this Order shall be made by written amendment signed by both parties.