ENTIRE AGREEMENT. “BUYER” and “SELLER”, as each is respectively identified on the Purchase Order to which these Terms and Conditions of Purchase are applicable, hereby agree to be bound by the Purchase Order, these Terms and Conditions of Purchase, and all other BUYER documents attached to the Purchase Order (collectively, the “ORDER”) in connection with the purchase of goods and/or services described in the ORDER (the “ITEMS”). The ORDER forms the entire agreement between BUYER and SELLER to the exclusion of any and all other terms and conditions whether oral or written including any terms and conditions SELLER may have provided in SELLER’S quote, purchase order acknowledgement, invoices, or any other forms or documents SELLER may use. SELLER acknowledges that it has not relied on any statement, promise, or representation made by BUYER which is not set out in the ORDER and waives any rights it may have in respect of the same. These Terms and Conditions of Purchase may only be waived or modified, in whole or in part, by written agreement of an officer of BUYER, and such waiver or modification shall be provided in an addendum document from BUYER attached to or enclosed with the ORDER and signed by an officer of BUYER.
PRICE; INVOICING; SET-OFF; PAYMENT. The purchase price of the ITEMS shall be the purchase price specified in the ORDER, provided such purchase price shall not be higher than last purchase price quoted or charged to BUYER by SELLER unless otherwise agreed in writing. If SELLER'S established purchase price for any of the ITEMS on the date of shipment is lower than the purchase price specified herein, BUYER shall pay such lower purchase price therefore. BUYER will not be liable for any federal, state, or local taxes unless separately stated and itemized on the face of the ORDER and invoice as a separate item. No items of goods are being purchased for re-sale, and no sales/use tax shall be added when an exemption has been provided to SELLER or if an exemption is indicated by the addition of BUYER’S Federal Tax Payer Identification Number on the face of the ORDER. Unless stated otherwise in the ORDER, the purchase price is firm and fixed; for the ITEMS ordered and not subject to escalation from SELLER’S increase in labor or material costs, currency exchange rate fluctuations, or any other cause. In the event that during the course of the ORDER, BUYER shall change quantity or specification, then any applicable change in purchase price (up or down) proposed by SELLER and agreed by BUYER in writing shall be reflected in the ORDER amendment, thus the purchase price stated in the latest amendment of the ORDER shall be the purchase price SELLER shall invoice and BUYER shall pay. BUYER shall pay the purchase price within the term stated in the ORDER after the ITEMS are received, subject to BUYER’S receipt of a proper invoice. In the absence of any specific payment terms, BUYER shall pay the purchase price for any the ITEMS within sixty (60) days after receipt of the ITEMS and the corresponding invoice. Invoices not received within one year shall be waived, and no payments will be made. Any payments made by BUYER prior to BUYER'S acceptance of all the ITEMS shipped, shall be considered advances, subject to return in the event of rejection of any of the ITEMS. Without prejudice to any other remedy or rights BUYER may have, including without limitation at law or in equity, BUYER may withhold, set-off, or counterclaim any funds otherwise due SELLER in the event SELLER has any financial obligations to BUYER or otherwise shall be in default hereunder. The purchase price for any of the ITEMS imported into the United States shall separately state and itemize the costs of duties, taxes, and fees included in the purchase price under Incoterms 2010 (DDP) Delivered Duty Paid to BUYER location as set forth in the ORDER.
QUANTITIES AND DELIVERIES. Shipment must equal exact amounts ordered unless otherwise agreed by BUYER in writing. TIME AND DATE OF DELIVERIES ARE OF THE ESSENCE OF THE ORDER. The delivery schedules are based upon SELLER'S agreement that: (a) the ITEMS will be delivered to BUYER’S location, Incoterms 2010 (DDP) Delivered Duty Paid (named place of destination), unless otherwise specified in the ORDER; and (b) the ITEMS comprising services shall be completed, by the date specified in the ORDER. If deliveries are made later than the date agreed upon, then BUYER shall have the right, in addition to all other remedies, to reject such ITEMS, and at BUYER'S option, terminate the ORDER either with respect thereto or together with any remaining installments, and SELLER shall be liable for all loss thereby incurred by BUYER. If it appears that SELLER will not meet or has not met the delivery schedule set forth herein, then SELLER, at BUYER'S request, shall: (a) ship any ITEMS via expedited routing; and/or, (b) use over-time work to get the ITEMS back on schedule. Any and all incremental increases in cost shall be borne by SELLER. BUYER shall have the right to demand shipment of the ITEMS in one or more installments, within the time provided. BUYER shall have the rights to consider any nonconforming installment shipment as a breach of the entire ORDER.
CHANGES. BUYER may at any time by written change orders to SELLER (and without notice to any surety or assignee), make changes in any one or more of the following in connection with the ORDER: (a) drawing designs or specifications; (b) methods of shipping or packing; (c) places of inspection, acceptance, or point of delivery; and/or, (iv) delivery schedule. To the extent that either party can demonstrate that any such change will increase or decrease the cost of or the time required for performance of the ORDER in any material respect, an equitable adjustment may be requested by such party in the purchase price, delivery schedule, or both. No claim by SELLER for such an adjustment will be valid unless submitted to BUYER within (30) days from the date of such change giving rise to the claim, and is signed by BUYER. Nothing contained herein shall relieve SELLER from its obligation to proceed without delay in the performance of the ORDER, as changed by BUYER, pending the outcome of any disputes as to cost or schedule.
HAZARDOUS MATERIALS. For the ITEMS that may contain potentially hazardous and/or restricted materials, if requested by BUYER, SELLER shall promptly furnish to BUYER in whatever form and detail BUYER reasonably requests: (a) a list of all potentially hazardous ingredients in the ITEMS; (b) the quantity of one or more such ingredients; and/or, (c) information concerning any changes in or additions to such ingredients. Before shipping the ITEMS, SELLER agrees to furnish to BUYER sufficient warning and notice in writing (including appropriate material safety data sheet (MSDS) labels on the ITEMS, containers, and packing) of any hazardous material that is an ingredient or a part of any of the ITEMS, together with such special handling instructions necessary to advise the involved carriers, BUYER, and their respective employees how to exercise that measure of care and precaution that will best prevent bodily injury or property damage in the handling, transportation, processing, use or disposal of the ITEMS, containers and packing shipped to BUYER. SELLER shall comply with all applicable federal, state, local and foreign laws (as applicable), and regulations pertaining to product and warning labels.
SPECIFICATIONS; TEST; INSPECTION. SELLER shall comply with the specifications and all manufacturing and/or test processes, standards, or other information relating to the ITEMS defined by BUYER (including BUYER’S Client where applicable) in the ORDER. In the event that no specification is specified by BUYER, SELLER shall comply with all SELLER’S advertised specifications, standards, and codes applicable to the ITEMS to be provided under the ORDER. SELLER shall comply with all applicable regulations, other legal requirements, best practice, and industry standards concerning the manufacture, packaging, and delivery of the ITEMS. SELLER shall comply with any and all applicable federal, state, local, and international laws, regulations, ordinances, executive orders, rules, orders, standards, conventions, directives, and treaties, including those relating to: (i) design, manufacture, transportation, sales, advertising, distribution, exportation, importation, labeling, packaging, certification, or approval of the goods or services; or (ii) employment discrimination, hours and conditions of employment, occupational health and safety, wages, environmental matters, product safety, motor vehicle safety, corrupt or deceptive practices, boycotts, antitrust, consumer products, or government subcontracting. If BUYER has provided any assistance in identifying such laws or regulations that may apply, these are for guidance purposes only. SELLER is solely responsible to ensure SELLER’S ITEMS meet all applicable laws and regulations that apply. SELLER shall not unreasonably refuse any request by BUYER to inspect and/or test the ITEMS at SELLER’S premises during or upon completion of manufacture. Such request may, where applicable include inspection and/or test by BUYER’S Client or an appointed third-party inspection authority. SELLER shall also procure that BUYER shall have identical rights of inspection and/or test at SELLER’S subcontractor’s premises. The ITEMS shall be marked in accordance with BUYER’S instructions and any applicable regulations or requirements of the carrier, and properly packed and secured so as to reach their destination in an undamaged condition.
NONCONFORMING ITEMS. BUYER may reject and hold, subject to SELLER’S disposal or return to SELLER, at SELLER'S expense, any of the ITEMS which are not as warranted or otherwise not in conformity with the requirements of and specifications in the ORDER, or which exceed the quantity ordered. Under no circumstances shall BUYER be required to resell the ITEMS which are rejected. Without limiting any other rights BUYER may have, BUYER, at its sole option, may require SELLER to repair or replace, at SELLER'S expense, any or all of the ITEMS rejected by BUYER or to refund the price of any or all rejected ITEMS. SELLER’S obligations with regard to the replacement of defective ITEMS shall include the obligation to replace any items of BUYER’S property that are damaged by a defective ITEM, and shall include “in and out” costs, to the extent the defective ITEM is installed in a larger piece of equipment or structure. SELLER shall not re-quote to BUYER any ITEMS previously rejected by BUYER unless BUYER has been notified of such re-quote and consents to the same in writing.
PERFORMANCE AND DELIVERY. SELLER shall schedule and perform SELLER’s work, including SELLER’s procurement of sub-supplies, in a timely manner to be able to achieve the delivery date stated in the ORDER. The ITEMS shall be delivered to, and/or performed at, the delivery address on the date or within the period stated in the ORDER. BUYER is under no obligation to accept ITEMS delivered more than five (5) days earlier than the specified delivery date, however if BUYER elects to accept such ITEMS the payment date will be calculated from the delivery date specified in the ORDER. BUYER reserves the right to delay delivery of ITEMS for up to eight (8) weeks without any increase in purchase price by SELLER. After eight (8) weeks, BUYER and SELLER shall mutually agree any further period of delay BUYER may reasonably require and any additional purchase price SELLER may request for SELLER’S costs unavoidably incurred as a direct consequence of such extended delay. If the ITEMS are to be delivered and/or to be performed, by installments, the ORDER will be treated as a single order and not severable. BUYER shall be entitled to reject any ITEMS delivered which are not in accordance with the ORDER or the specification, and shall not be deemed to have accepted of the ITEMS until BUYER has had a reasonable time to inspect them following delivery or, if later, within a reasonable time after any latent defect in the ITEMS has become apparent. SELLER shall supply BUYER in good time (but not later than the date of the delivery of ITEMS) with any handling and installation, instructions and other data, including any inspection, material and test certificates that BUYER shall reasonably require to incorporate the ITEMS into BUYER’S or BUYER’S Client’s product or site. BUYER shall be entitled to withhold up to ten percent (10%) of the purchase price of the ITEMS until all documentation requisitioned in the ORDER has been delivered.
TITLE AND RISK. Risk of loss for the ITEMS shall pass to BUYER upon delivery to BUYER in accordance with the ORDER. Title to the ITEMS shall pass to BUYER upon the earlier of payment for or delivery of the ITEMS.
WARRANTY AND DEFECT REMEDY. SELLER warrants to BUYER that the ITEMS will: (a) be new, of merchantable quality, and fit for the intended purpose specified in the ORDER, or when not specified in the ORDER, be fit for any purpose for which ITEMS of that description are generally used; (b) be free from defect in design, material, and workmanship; (c) correspond with any relevant Specification or sample; (d) will comply with all statutory requirements and regulations relating to the manufacture and sale of such ITEMS. SELLER warrants to BUYER that all the ITEMS performed will be carried out by appropriately qualified and trained personnel with due care and diligence and to such a high standard of quality as is reasonable for BUYER to expect in all circumstances. SELLER warrants to BUYER that the ITEMS shall not infringe or contribute to the infringement of any patents, trademarks, copyrights, or other proprietary rights. Without prejudice to any other remedies or rights BUYER may have, including without limitation at law or in equity, if any ITEMS are not supplied or performed in accordance with the ORDER, then BUYER shall be entitled: (a) in respect of ITEMS which are found to be defective with twelve (12) months of first use or eighteen (18) months from delivery, whichever is later, to require SELLER to repair or replace the defective ITEMS, at no cost to BUYER; or, (b) at BUYER’S sole option, and regardless of whether BUYER has previously required SELLER to repair the ITEMS or to supply replacement ITEMS in accordance with the ORDER, to treat the ORDER as revoked by SELLER and require the repayment of any part of the purchase price which has been paid.
BUYER’S PROPERTY AND INFORMATION. All tools, dies, molds, templates, equipment, Specifications, data, drawings, designs, software, or materials furnished by BUYER to SELLER or paid for by BUYER, including replacements and materials attached thereto, shall remain and be marked as the personal property of BUYER. Such items shall be separately stored and insured by SELLER, and SELLER assumes all risk of loss and liability arising out of or related to the items, until such items are returned to BUYER. These items shall be used by SELLER only for filling BUYER’S ORDER and are subject to immediate removal, at BUYER’S written request, with each item to be delivered (at SELLER’S expense) in its original condition, reasonable wear and tear excepted. SELLER shall provide to BUYER, without restriction on use or disclosure, all information and documents that SELLER has or shall develop or acquire related to the work SELLER is performing under the ORDER. Such information and documents shall be deemed to be “works for hire” and be the property of BUYER, with BUYER having a right of use for any purpose, without liability to SELLER. All information and documents BUYER may have disclosed or shall disclose to SELLER in connection with the ITEMS to be delivered and/or ITEMS to be performed under the ORDER shall be deemed confidential and proprietary and shall not be disclosed or used by SELLER without the written consent of BUYER.
LIABILITY; INDEMNITY; INSURANCE. SELLER shall defend, indemnify, and hold harmless BUYER and its directors, officers, employees, clients, affiliates, agents, contractors, successors and assigns from and against any and all claims, liabilities losses, damages (including special, consequential and incidental damages), actions and expenses (including reasonable legal fees) in connection with: (a) any breach by SELLER of its warranties, covenants, or obligations hereunder; (b) any injury (including death), property damage, or economic loss arising out of, in connection with, or related to: (i) defective or nonconforming ITEMS supplied by SELLER under the ORDER; or (ii) acts or omissions of SELLER or its employees or subcontractors; (c) any failure to comply with applicable laws and regulations; and (d) any infringement, actual or alleged, or contributory infringement (“Infringement”) of a patent, trademark, copyright, or other proprietary interest (“Intellectual Property Rights”). The indemnity and defense obligations shall survive termination or expiration of the ORDER. SELLER shall provide employers liability, commercial general liability, automobile, public liability, and property damage insurance in amounts and coverage sufficient to satisfy all claims hereunder. Such policies shall name BUYER as an additional insured, shall be endorsed to be primary to any coverage provided by BUYER, and shall contain a waiver of any subrogation rights against BUYER. For any ITEMS subject to any Intellectual Property Rights not owned by BUYER, SELLER shall, at SELLER’S expense, obtain for BUYER a perpetual, royalty-free license with respect to such ITEMS, or shall replace or modify the ITEMS in a manner satisfactory to BUYER, so as to avoid Infringement without any degradation in performance. SELLER’S obligations shall apply even though BUYER furnishes any portion of the design or specifies materials or manufacturing processes used by SELLER. BUYER SHALL NOT BE LIABLE TO SELLER, REGARDLESS OF WHETHER FORESEEABLE OR HOW CAUSED, INCLUDING WITHOUT LIMTIATION, THE NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, BREACH OF WARRANTY, CONTRACT, OR STATUTORY DUTY OF BUYER, OR ANY OTHER THEORY OF LEGAL LIABILITY (TORT, CONTRACT, OR OTHERWISE): (A) IN ANY AMOUNT EXCEEDING THE PURCHASE PRICE, OR (B) FOR ANY CONSEQUENTIAL, INDIRECT, OR SPECIAL LOSSES OR DAMAGES, INCLUDING WITHOUT LIMTATION, ANY LOSS OF PROFIT, BUSINESS, OR CONTRACT.
FORCE MAJEURE. Neither BUYER or SELLER shall be responsible for its failure to perform due to causes beyond its reasonable control and not caused by its negligence, such as acts of God, fire, earthquakes, war, riot, embargoes or acts of civil or military authorities (“Force Majeure”). If delivery is to be delayed by Force Majeure, SELLER shall immediately notify BUYER in writing and BUYER may either: (a) extend SELLER’S time of performance; or (b) terminate the uncompleted portion of the ORDER, at no cost to BUYER.
TERMINATION. BUYER may at any time prior to delivery of ITEMS and/or performance of ITEMS terminate the ORDER for the convenience of BUYER (including BUYER’S Client) by giving SELLER written notice of such termination. Upon such notice of termination for convenience SELLER shall immediately cease work on the ORDER and shall mark and identify all material associated with the execution of the ORDER. BUYER shall pay SELLER reasonable termination charges solely limited to the cost of SELLER’S non- stock material, goods, and labor specifically used or committed in the execution of the ORDER up to the date of termination. SELLER shall not be entitled to claim for SELLER stock material or stock goods which SELLER can reasonably restock and use in the course of his normal business. BUYER shall be entitled to take delivery and title (property) or provide disposal instructions for any material or goods for which BUYER has paid SELLER. Under no circumstances shall SELLER be entitled to reuse or resell any material paid for by BUYER. BUYER may terminate all or any part of its purchases under the ORDER for cause if SELLER: (a) fails to deliver ITEMS or perform ITEMS in the quantity and to the quality or by the date or within the time stated in the ORDER or specification, including any extension of time, provided in any amendment to the ORDER; (b) breaches these terms and conditions (including SELLER’S warranties and covenants); (c) following written notice by BUYER of such concern, fails to satisfy BUYER that progress of the ITEMS is such that timely and proper performance of the ORDER or specification will be achieved; (d) SELLER ceases or threatens to cease to carry on business; (e) SELLER makes any voluntary arrangement with its creditors; (f) an encumbrancer takes possession of or a receiver is appointed over any of the property or assets of SELLER; (g) a winding up order is presented against SELLER; or (h) BUYER reasonably apprehends that any of the events mentioned in (a) to (g) above is about to occur in relation to SELLER and notifies SELLER accordingly. In the event BUYER terminates the ORDER for cause, as detailed above, SELLER shall immediately cease work and if required by BUYER deliver to BUYER all satisfactorily completed ITEMS or material or work in progress for BUYER to complete in any manner BUYER deems appropriate. If in the sole opinion of BUYER the completed ITEMS or material or work in progress cannot be used, BUYER may purchase substitute ITEMS from any other source. Upon the completion of BUYER’S obligations to BUYER’S Client and payment by BUYER’S Client to BUYER, BUYER will pay SELLER the cost of all satisfactorily completed ITEMS or material and work in progress for which BUYER has taken possession, less BUYER’S extra cost (including expenses and any loss or damage suffered by BUYER and/or BUYER’S Client) to complete the work by other means to the satisfaction of BUYER (including BUYER’S Client).
COMPLIANCE WITH LAWS. SELLER shall act in a manner consistent with all laws, rules, and regulations, and shall perform the ORDER in accordance with all applicable laws, permits, specifications, industry standards, codes, and practices of top globally recognized suppliers of ITEMS. SELLER shall not take, or permit to be taken, any action in connection with the ORDER, the ITEMS, or matters that are the subject of the ORDER or ITEMS, which would expose BUYER to any liability or penalty as a result of the failure to comply with applicable laws or permits. Neither SELLER nor any of its directors, officers, managers, agents, employees, or representatives: (i) has been convicted of any offense involving bribery, corruption, fraud, or dishonesty; (ii) has been or currently is listed as debarred, suspended, proposed by suspension or debarment, or otherwise ineligible for any project funding or participation by the World Bank, or by multi-lateral or bi-lateral aid agencies or for government procurement or other government contracts at the U.S. federal or state levels; (iii) are currently the subject of any investigation, inquiry, or enforcement proceedings by any governmental authority regarding any offense or alleged offense under any applicable law related to compliance or business ethics. SELLER represents and warrants that it shall take no action, directly or indirectly, that would constitute a violation of the United States Foreign Corrupt Practices Act or any other applicable anti-bribery or anti-corruption law, convention, or regulation (collectively, “anti-corruption laws”). SELLER acknowledges and confirms that it and its related parties are familiar with anti-corruption laws. SELLER acknowledges that is will comply with all import and export laws, rules, and regulations, and obtain and provide to BUYER all documentation required to export, re-export, or import ITEMS. Diversion (illegal or illicit) and antidumping circumvention are strictly prohibited. SELLER shall be strictly liable, and responsible, for obtaining and providing any and all information and documentation in order to legally import or export, including without limitation, proper and correct item classification, country of origin, and duties paid, and shall comply will all requests from BUYER, or its representatives, for such information and documentation. BUYER reserves the right to reject ITEMS and terminate the ORDER in its entirety, without liability to SELLER, if BUYER has a good faith basis for believing SELLER or any of its related parties may have violated, or intends to violate, any country’s import or export laws, rules, regulations, orders, or decisions.
GENERAL. The ORDER is personal to SELLER, and SELLER shall not assign or transfer to any other person any of its rights or subcontract any of its obligations under the ORDER without the prior written consent of BUYER. Any notice required or permitted to be given by either party to the other under the ORDER shall be in writing, addressed to the other party at its principal place of business or such address as noted in the ORDER. No waiver by BUYER of any breach of the ORDER by SELLER shall be considered as a waiver of any subsequent breach of the same or any other provision. No failure or delay by BUYER to exercise any right, power, or remedy will operate as a waiver. BUYER’s remedies shall be cumulative. In the event SELLER fails to comply with the ORDER, BUYER may exercise any and all rights and remedies it may possess, including without limitation, cancel the ORDER, refuse to take delivery of any of the undelivered ITEMS, reject the ITEMS delivered, or retain the ITEMS. Any such refusal to take delivery shall relieve BUYER from any further obligation hereunder, provided such refusal shall not prejudice the rights of BUYER with respect to ITEMS sold or delivered to BUYER prior thereto. Except as otherwise specified herein, no supplement, modification, or amendment of any term, provision, or condition of the ORDER shall be binding or enforceable unless executed, in writing, by authorized representatives of the parties to the ORDER. In the event of default hereunder, the defaulting party shall be liable to the non-defaulting party for all expenses and costs incurred by the non-faulting party in protecting or enforcing its rights hereunder including but not limited to reasonable attorneys' fees and costs of court or arbitration. If any provision of these terms and conditions are held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these terms and conditions and the remainder of the provisions in question shall not be affected thereby. SELLER shall not, without the prior written consent of BUYER, disclose any information relative to this ORDER to any third party. Any drawings, specifications or other materials and information submitted or revealed by BUYER to SELLER in connection with the ORDER are confidential and proprietary to BUYER and shall not be disclosed to any third party or utilized by SELLER in any manner other than in filling BUYER'S orders. The ORDER shall be deemed to have been made in Harris County, Texas and shall be governed by and construed and enforced in accordance with and subject to the laws of the State of Texas. The United Nations Convention on Contracts for the International Sales of Goods shall not apply to, and shall be excluded from, the ORDER. BUYER and SELLER expressly agree that any action relating to or arising from this ORDER shall be instituted and prosecuted in the state or federal courts located in Houston, Harris County, Texas. SELLER expressly and irrevocably consents to personal jurisdiction in the appropriate state or federal court therein. SELLER further irrevocably consents to service of process by certified mail, return recent requested to the address set forth on the face of the ORDER, and BUYER and SELLER each waive the right to change of venue. In the event the ORDER is deemed to be a subcontract within the meaning of Section 202 of Executive Order 11246, dated September 24, 1965, as amended, then such section is hereby incorporated herein by reference, to the general effect that SELLER shall not discriminate against any employee or applicant for employment under the ORDER because of race, color, religion, sex, or national origin and further that SELLER shall take affirmative action to ensure that applicants and employees are treated without regard to their race, color, religion, sex, or national origin. Also incorporated herein by reference are the affirmative action obligations of contractors and subcontractors with respect to veterans (41 C.F.R. Part 60-250) and with respect to handicapped workers (41 C.F.R. Part 60-741), to the extent that such provisions are applicable.