Terms & Conditions

Standard Purchase Order Terms and Conditions

PURCHASE ORDER AND MODIFICATIONS: The agreement between Buyer and Supplier with respect to the purchase of materials, services, goods or articles described on the face of the Purchase Order (collectively, the “articles”) shall consist of the terms appearing on the face of the Purchase Order   and the terms set forth herein (collectively, the “Purchase Terms”). The Purchase Terms may not be added to, deleted or modified without Buyer’s written consent. Any proposal for additional or different terms, whether or not material, and any attempt by Supplier to add to or vary any of the Purchase Terms in any respect, is hereby objected to and rejected. No such proposal shall operate as a rejection of the Purchase Order unless such proposal modifies the description, quantity, price or delivery schedule of the articles, but the Purchase Order shall be deemed accepted by Supplier without the additional or different terms. Any prior course of dealing, trade usage, or oral agreement not reduced to a writing signed by Buyer will not be binding on Buyer to the extent it modifies, adds to or detracts from the Purchase Terms. Supplier shall be bound by all of the Purchase Terms upon the happening of any of the following events: (a) Buyer’s receipt of the acknowledgement copy of the Purchase Order signed by Supplier, (b) Buyer’s receipt of notification from Supplier that Supplier has commenced performance under the Purchase Order or Buyer’s receipt of any other indication from Supplier that Supplier has accepted the Purchase Order, or (c) shipment or delivery to Buyer of any of the articles described on the Purchase Order.

SHIPPING INSTRUCTIONS: On date of shipment, Supplier shall send the original bill of lading, air bill or express receipt reflecting the Purchase Order number to Buyer’s Traffic Department. Supplier shall not deliver articles ahead of schedule unless written authorization is received from Buyer. Supplier shall describe shipments in accordance with the carrier’s tariffs to obtain the lowest freight rate. Supplier shall not insure or declare value on shipments beyond F.O.B. point. When a shipment is subject to freight rates dependent upon value, Supplier shall annotate the bill  of lading, air  bill  or  express receipt to show that the shipment is released at the maximum value which applies to the lowest rate provided in applicable tariffs. Supplier shall  consolidate all shipments to be forwarded in one day. If the buyer does not want the over shipment, Supplier will reimburse Buyer for the full cost of returning over-shipments or a minimum charge of $50, whichever is higher. Supplier shall state shipping point on all invoices. Each case or parcel and accompanying packing list of contents must show Buyer’s Purchase Order number. If no packing list accompanies the shipment, Buyer’s count will be conclusive to Supplier.

TRUCKING AND EXTRAS: No charges will be allowed for transportation, packaging or packing returnable containers unless stated in the Purchase Order. All shipments (a) must be packaged and conform with Buyer’s packaging specification referred to in the Purchase Order, if any, to permit efficient handling and provide protection in shipment and, if tendered to a common carrier, for delivery, and (b) must conform to the packaging requirements applicable to such carrier. Damage to any articles resulting from improper packaging will be charged to Supplier.

SPECIFICATIONS: All articles ordered to the Buyer’s specifications will comply with such specifications in effect as of the date of the Purchase Order unless otherwise specified in writing by Buyer.

BUYER  APPROVALS  AND  REVIEWS: Buyer’s review or approval of any articles under the Purchase Order or of any design, drawings, specifications  or other documents prepared under the Purchase Order by Buyer and/or Supplier shall not (a) relieve Supplier of any of its  obligations  under the  Purchase Order, (b) excuse or constitute a waiver of any defects or nonconformities in any articles furnished under the Purchase Order, or (c) change, modify, or otherwise affect any of the Purchase Terms, including, but not limited to, the prices and delivery schedules contained in the Purchase Order.

INSPECTION: ACCEPTANCE AND REJECTION. All shipments of Goods and performance of Services shall be subject to Buyer’s right of inspection. Buyer shall have ninety (90) days (the “Inspection Period“) following the delivery of the Goods at the Delivery Point or performance of the Services to undertake such inspection, and upon such inspection Buyer shall either accept the Goods or Services (“Acceptance“) or reject them. Buyer shall have the right to reject any Goods that are delivered in excess of the quantity ordered or are damaged or defective. In addition, Buyer shall have the right to reject any Goods or Services that are not in conformance with the Specifications or any term of this Agreement. Transfer of title to Buyer of Goods shall not constitute Buyer’s Acceptance of those Goods. Buyer shall provide Supplier within the Inspection Period notice of any Goods or Services that are rejected, together with the reasons for such rejection. If Buyer does not provide Supplier with any notice of rejection within the Inspection Period, then Buyer will be deemed to have provided Acceptance of such Goods or Services. Buyer’s inspection, testing, or Acceptance or use of the Goods or Services hereunder shall not limit or otherwise affect Supplier’s warranty obligations hereunder with respect to the Goods or Services, and such warranties shall survive inspection, test, Acceptance and use of the Goods or Services.

Buyer shall be entitled to return rejected Goods to Supplier at Supplier’s expense and risk of loss for, at Buyer’s option, either: (i) full credit or refund of all amounts paid by Buyer to Supplier for the rejected Goods; or (ii) replacement Goods to be received within the time period specified by Buyer. Title to rejected Goods that are returned to Supplier shall transfer to Supplier upon such delivery and such Goods shall not be replaced by Supplier except upon written instructions from Buyer. Supplier shall not deliver Goods that were previously rejected on grounds of non-compliance with this Agreement, unless delivery of such Goods is approved in advance by Buyer, and is accompanied by a written disclosure of Buyer’s prior rejection(s).

Price/Payment Terms. Prices for the Goods and/or Services will be set out in the applicable Order. Price increases or charges not expressly set out in the Purchase Order shall not be effective unless agreed to in advance in writing by Buyer. Supplier will issue all invoices on a timely basis. All invoices delivered by Supplier must meet Buyer’s requirements, and at a minimum shall reference the applicable Purchase Order. Buyer will pay the undisputed portion of properly rendered invoices thirty-five (35) days from the invoice date. Buyer shall have the right to withhold payment of any invoiced amounts that are disputed in good faith until the parties reach an agreement with respect to such disputed amounts and such withholding of disputed amounts shall not be deemed a breach of this Agreement nor shall any interest be charged on such amounts. Notwithstanding the foregoing, Buyer agrees to pay the  balance of the undisputed amounts on any invoice that is the subject of any dispute within the time periods specified herein.

WARRANTY: In addition to Supplier’s customary warranties and any other warranties contained in the Purchase Terms or implied in fact or by law, Supplier warrants that the articles furnished to Buyer will conform to all specifications, drawings, samples or other descriptions furnished or specified by Buyer and will be new, merchantable, of high quality and free from defects in design, material and workmanship. Supplier warrants that all such articles   will conform to any statements made on the containers, labels or advertisements for such articles, and be adequately contained, packaged, marked and labeled. If Supplier knows or has reason to know the particular purpose for which Buyer intends to use the articles, Supplier warrants that such articles    will be fit for such particular purpose. Supplier warrants that the articles will confirm in all respects to samples. In addition, Supplier warrants that it will comply with all applicable laws, rules and regulations of any governmental authority covering the production, sales or delivery of the articles. Inspection, test, acceptance or use of the articles shall not affect Supplier’s obligation under this warranty. All warranties shall survive inspection, test, acceptance,   use and payment, and shall be for the benefit of Buyer and its successors, assigns and customers and for the benefit of users of the articles and any end products sold by Buyer that incorporate the articles as a component or part thereof. Supplier’s warranties shall not be limited in any way by Buyer’s extension of any express or implied warranties to its successors, assigns, and customers or to users of the articles and any end products sold by Buyer  that incorporate such articles as a component or part thereof. The rights and remedies stated in this paragraph shall be in addition to, and not in lieu of, other rights and remedies that Buyer may have under other Purchase Terms or under law for breach of any of Supplier’s warranties.

RELEASE OF NEWS INFORMATION AND ADVERTISING: Supplier shall not, without prior written consent of Buyer, issue any press release or announcement, make any public statement, or advertise or publish in any manner that Buyer has issued the Purchase Order or otherwise ordered articles from Buyer.

TERMINATION: Buyer shall have the right to terminate the Purchase Order or any part thereof at any time with or without cause by written notice to Supplier. Without Cause. In case of termination by Buyer of all or any part of the Purchase Order without cause, any claim by Supplier for such termination must be submitted to Buyer in writing no later than thirty (30) days after Supplier’s receipt of such termination notice. Supplier waives any claim for reimbursement of the costs provided for herein if Supplier fails to notify Buyer in writing of such claim within thirty (30) days after Supplier’s receipt of notice of termination. This subparagraph shall not limit or affect Buyer’s right to terminate a Purchase Order for cause.

With Cause. Buyer may terminate all or any part of the Purchase Order with cause by written notice to Supplier if (i) Supplier fails to make any delivery in accordance with the agreed delivery date or schedule or otherwise breaches or fails to observe or comply with any other instruction, term, condition, requirement, obligation, or warranty, separately or in any combination, under the Purchase Terms, (ii) Supplier fails to make timely progress in the production of the articles so as to create reasonable grounds for Buyer’s insecurity with respect to Supplier’s performance of its obligations under the Purchase Order, (iii) Supplier becomes insolvent, (iii) any proceeding in bankruptcy, reorganization or for the appointment of a receiver or trustee is filed by or against Supplier, or (iv) Supplier makes an assignment for the benefit of its creditors. In the event of termination for cause, Buyer may produce,  purchase or otherwise acquire articles elsewhere on such terms or in such manner as Buyer may deem appropriate and Supplier shall be liable to Buyer  for any excess cost or other expenses incurred by Buyer. Buyer shall have no obligation for any costs relating to any articles not delivered to Buyer before notice of termination is given to Supplier. Buyer’s rights and remedies under this subparagraph shall be in addition to any other rights and remedies it may have under the Purchase Terms or by law by reason of any breach or default by Supplier.

INTELLECTUAL PROPERTY INDEMNITY: Supplier shall defend, indemnify and hold harmless Buyer, its successors, assigns, agents, customers and anyone reselling or using Buyer’s products from and against any and all claims, demands, actions, lawsuits, judgments, decrees, losses, damages, liabilities, costs and expenses (collectively, “Claims”), including, without limitation, any attorney’s fees and any amounts paid in settlement of Claims, for or on account of any actual or alleged infringement of any patent, trademark, trade dress, copyright, trade secret or other intellectual property right, as well as any actual or alleged unfair competition, resulting or arising from the manufacture, use, sale or importation of any articles supplied under the Purchase Order, unless such Claim is based solely upon Buyer’s own drawings and specifications furnished to Supplier by Buyer and the articles are of a type that Supplier does not customarily manufacture and that Supplier manufactures only for Buyer. Buyer may be represented by and actively participate through its own counsel in any claim, suit or proceeding covered by this paragraph if it so desires, and the costs of such representation shall be paid by Supplier. In no event shall Buyer have any obligation to indemnify Supplier for any Claim of infringement of any patent, trademark, trade dress, copyright, trade secret or other intellectual property right or any Claim of unfair competition.

EXCUSABLE DELAYS: Neither party shall be liable to the other as a result of any delays arising out of any cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God or of the public enemy, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, war, riots, and freight embargoes. If the delay is caused by the delay of a subcontractor of Supplier, and if such delay arises out of causes beyond the reasonable control of both Supplier and the subcontractor and without the fault or negligence of either of them, Supplier shall not be liable to Buyer in damages unless the goods or services to be furnished by the subcontractor were obtainable from other sources in sufficient time to permit Supplier to meet the required delivery schedule. Supplier will notify Buyer in writing within ten (10) days after the beginning of any such cause.

BUYER’S INFORMATION: Information, drawings, data, design, inventions, computer software, ideas, suggestions and other technical information supplied by Buyer or developed by Supplier at Buyer’s request shall be Buyer’s property and shall be held in confidence by Supplier. Such information shall not be reproduced, used, modified, or disclosed to others by Supplier without Buyer’s prior written consent, and shall be returned to Buyer upon completion by Supplier of its obligations under the Purchase Order or upon Buyer’s demand. Any information which Supplier may disclose to Buyer with respect to the design, manufacture, sale or use of the articles covered by the Purchase Order shall be deemed to have been disclosed as part of the consideration for the Purchase Order, and Supplier shall not assert any claim against Buyer for Buyer’s use thereof.

BUYER’S PROPERTY: All property used by Supplier in connection with the Purchase Order which is owned, furnished, charged to or paid for by Buyer, including, but not limited to, materials, tools, dies, jigs, molds, patterns, fixtures, equipment, drawings and other technical information, information provided or stored on electronic media, computer software, specifications, and any replacement thereof, shall be and remain Buyer’s property and shall be subject to removal and inspection by Buyer at any time without cost or expense to Buyer. Buyer shall have free access to Supplier’s premises for the purpose of inspecting or removing such property. Supplier shall identify and mark all such property as Buyer’s property, use such property only to perform its obligations under the Purchase Order, and adequately insure such property at Supplier’s expense for Buyer’s protection. Supplier shall assume all liability for and maintain and repair such property and return the same to Buyer in its original condition, reasonable wear and tear excepted. When such property is no longer required to perform Supplier’s obligations under the Purchase Order, Supplier shall furnish Buyer with a list thereof and comply with any disposition instructions provided by Buyer. Buyer shall not be obligated to pay for tooling unless such obligation is expressly set forth on the face of the Purchase Order, and in no event shall Buyer be required to pay for tooling until after the first article produced therefrom has been inspected and shipped by Supplier and received, inspected and accepted by Buyer. Materials furnished by Buyer on other than a change basis in connection with the Purchase Order shall be deemed to be held by Supplier as bailee thereof. Supplier agrees to pay Buyer’s replacement cost for all such material spoiled or otherwise not satisfactorily accounted for as scrap loss.

GRATUITIES: Supplier warrants that neither it nor any of its employees, agents or representatives has offered or given any gratuities to Buyer’s employees, agents or representatives with a view toward securing the Purchase Order or securing favorable treatment with respect thereto.

NOTICE TO BUYER OF LABOR DISPUTES: Whenever Supplier knows or, in the exercise of reasonable judgment, should know, that any actual or potential labor dispute is delaying or threatens to delay Supplier’s timely performance of the Purchase Order, Supplier shall immediately provide written notice and all relevant information relating thereto to Buyer. Supplier shall insert the substance of this Paragraph 17 in any subcontract as to which a labor dispute may delay the timely performance of the Purchase Order.

EFFECT OF INVALIDITY: The invalidity in whole or in part of any provision of the Purchase Terms shall not affect the validity of any other provision.

REMEDIES: The rights and remedies provided in this paragraph shall be cumulative and in addition to any further rights and remedies available to Buyer as provided by law or equity or under other Purchase Terms. In addition to and not in limitation of any other remedies available to Buyer, Buyer may at its option: (a) return any nonconforming or late delivered articles to Supplier at Supplier’s expense; (b) charge Supplier for any amount in excess of the Purchase Order price required to obtain articles in substitution for articles not delivered pursuant to the Purchase Terms, including articles rejected due to nonconformity, late delivery or breach of warranty; (c) rework or repair articles to make them conform to the Purchase Order and charge Supplier for the expense thereof; (d) use the nonconforming articles for a purpose other than the purpose originally intended and charge Supplier for the amount by which the Purchase Order price exceeds the price of articles normally required for such alternative purposes; (e) charge Supplier for the full amount of any monetary loss suffered by Buyer as a result of any breach of the Purchase Terms; and (f) require Supplier to repair or replace defective articles at Supplier’s expense.

TAXES: Unless otherwise expressly stated on the face of the Purchase Order, Supplier shall pay all assessments, impositions, charges, exactions, excise, use and other taxes (however designated) imposed on or measured by the production, sale, delivery or use of the articles furnished under the Purchase Order (collectively, “Taxes”) to the extent such Taxes are required, or not forbidden by law, to be borne by Supplier. Prices for articles shall not include any Taxes for which Buyer has furnished an exemption certificate to Supplier.

TITLE AND RISK OF LOSS: Unless otherwise expressly stated on the face of the Purchase Order, title to the articles shall pass to Buyer upon delivery of the article to the F.O.B. point named in the Purchase Order. Notwithstanding the use of any F.O.B. or other term on the face of the Purchase Order to the contrary, Supplier assumes all risk of loss of the articles until Buyer actually receives articles conforming to the Purchase Terms.

TERMS OF PAYMENT: Unless otherwise expressly stated on the face of the Purchase Order, terms of payment shall be net – thirty (30) days.

HAZARDOUS MATERIALS: Supplier shall notify Buyer in writing of every article ordered under the Purchase Order that contains material which may be hazardous or injurious to the health or physical safety of persons, including without limitation, material that may present such a hazard or injury may only the article is mishandled or misused, and identify in such written notice the hazardous or injurious material, the effect of such material on human beings, and the physical manifestations that may result from exposure to the material. For each article so identified, Supplier shall supply Buyer with warning labels and instructional materials sufficient to warn persons exposed to the material of its hazard and effects.

LIMITATION ON BUYER’S LIABILITY;  STATUTE  OF  LIMITATIONS: In no event shall Buyer be liable for any claim for anticipated profits or incidental or consequential damages. Buyer’s liability on any claim of any kind for any loss or damage arising from or relating to the Purchase Order or its performance or breach shall in no case exceed the price allocable to the articles which give rise to such claim. Buyer shall not be liable for penalties of   any kind or description. Any action resulting from any breach by Buyer arising from or relating to the Purchase Order, its performance, or the articles furnished under the Purchase Order, must be filed within one (1) year after such cause of action has accrued.