Any quantity changes, price increases, product substitutions, or other deviations by Seller from Buyer’s offer will not be accepted without the prior approval in writing of an authorized representative of Buyer. The failure of the Buyer to object to any such additional or different terms or conditions or other deviations from its offer shall not constitute a waiver by Buyer of the terms and conditions of its offer or constitute acceptance of Seller’s counteroffer.
Buyer may cancel this PO at any time before the actual receipt of Seller’s acceptance of all of the terms and conditions of Buyer’s offer or counteroffer, or if acceptance is not received, within fifteen (15) days from the date of this PO. A P.O. is construed as Buyer’s acceptance of Seller’s offer, this acceptance is expressly conditional on Seller’s written consent to any terms additional to or different from Seller’s offer contained herein. Any conflicts between the terms of seller and the terms of Buyer, These terms shall govern.
2. Contract Documents: The PO, including any exhibits or attachments, and these Standard Terms and Conditions comprise the complete and final agreement between Buyer and Seller (the “Contract Documents”) concerning its subject matter and supersede all prior negotiations, proposals, representations, commitments, understandings, or agreements between Buyer and Seller (each, a “Party” and together, the “Parties”), either written or oral. No other agreement, quotation, or acknowledgment in any way modifying any of the Contract Documents will be binding upon Buyer unless made in writing and signed by Buyer’s authorized representative. Seller agrees to provide and deliver all goods, labor, supervision, materials, supplies, equipment, transportation, tools, permits, and any services incidental to an order of goods, all as described in the Contract Documents, pursuant to all obligations, duties, and responsibilities of Seller under the Contract Documents (all the foregoing together, hereinafter referred to individually or collectively as, the “Work”). The Contract Documents and all information concerning Buyer shall be kept strictly confidential by Seller and shall not be disclosed to third parties without Buyer’s prior written consent. Prior courses of dealing or trade usages shall not change, add to or detract from the provisions of this PO.
3. Prices; Taxes; Compliance with Laws: Seller shall deliver to Buyer the goods described in the Contract Documents at the price specified in the Contract Documents and in strict compliance with the Contract Documents and all applicable federal, state, local or foreign laws, rules, and regulations (“Applicable Laws”) in any way affecting or relating to Seller, its business or the transactions contemplated under this PO. The acceptance of Buyer’s offer by Seller constitutes Seller’s representation and warranty to Buyer that the prices to be charged under this PO are not (i) in excess of prices charged to Seller’s other customers for similar quantities and with similar delivery requirements, and (ii) in excess of or less than prices permitted by Applicable Laws. Seller agrees that any price reduction given to any third party with respect to the types of Work covered by this PO, subsequent to the placement of this PO, will be applicable to this PO. Unless this PO specifies otherwise, all Taxes on Work, unless expressly imposed on Buyer by Applicable Laws, shall be the responsibility of and paid by Seller to the appropriate governmental taxing authority with jurisdiction. The term “Taxes” means, for the purposes of this PO, all value-added, sales, use, import, duties, customs, or other taxes applicable to the goods delivered hereunder, except for any taxes based upon the capital, gross margin, or net income of Seller. All Taxes imposed on Buyer by Applicable Laws shall be separately itemized on all invoices. Seller shall arrange for all necessary inspections and approvals of all Work. With respect to the Work under the Contract Documents, Seller shall, and shall cause each of its subcontractors and the agents and employees of each of them to comply with (i) all applicable provisions of the Foreign Corrupt Practices Act of the United States (15 U.S.C. § 78dd-1 and 2), and (ii) the Organization for Economic Cooperation and Development Convention on Combating Bribery of Foreign Public Officials in International Business Transactions as implemented in the domestic law of any state to which Seller and its subcontractors and the agents and employees of each of them are subject and not to take any action that could result in Buyer or any of its affiliates becoming subject to any action, penalty or loss of benefits thereunder.
4. Conflicts of Interest: Seller represents and warrants that it has not offered or given and will not offer or give to any employee, agent, or representative of Buyer any gratuity toward securing any business from the Buyer or influencing such person with respect to the terms, conditions or performance of any contract with or order from the Buyer.
5. Inspection. All Work to be furnished or performed under this PO shall be subject to inspection and testing by Buyer’s representatives. Such inspection and testing shall not relieve Seller from responsibility for defects in materials, workmanship, fabrication, and design, or failure to meet any warranties hereunder or any other requirements of or obligations under this PO, and shall not constitute a waiver by Buyer of any warranty, claims, right or remedy to which Buyer may be entitled under this PO or Applicable Laws.
6. Seller’s Representations and Warranties: SELLER REPRESENTS THAT IT IS FINANCIALLY SOLVENT, HAS GOOD AND MARKETABLE TITLE TO THE GOODS COVERED BY THIS PO AND THE RIGHT TO CONVEY THEM, AND THAT THE GOODS SOLD ARE UNENCUMBERED AND FREE FROM SECURITY INTERESTS AND LIENS. IN ADDITION TO ALL OTHER EXPRESS WARRANTIES IN THE CONTRACT DOCUMENTS, IMPLIED WARRANTIES, AND ANY RIGHTS AND REMEDIES AT LAW OR IN EQUITY THAT BUYER MAY HAVE, SELLER EXPRESSLY WARRANTS AND REPRESENTS THAT THE WORK DELIVERED OR PROVIDED PURSUANT TO THIS PO SHALL BE FREE FROM ANY DEFECTS, LATENT OR PATENT (EXCEPTING ANY BUYER FAULTY SPECIFICATIONS IN THE CONTRACT DOCUMENTS), IN MATERIALS, WORKMANSHIP, FABRICATION OR DESIGN; SHALL CONFORM FULLY IN ALL RESPECTS TO THE SPECIFICATIONS AND DESCRIPTIONS SET FORTH IN THE CONTRACT DOCUMENTS OR IN SELLER’S CATALOGS, PRODUCT BROCHURES, OR OTHER REPRESENTATIONS, DEPICTIONS, SAMPLES, OR MODELS OF THE GOODS; THE GOODS SHALL BE NEW, UNLESS OTHERWISE SPECIFIED, AND OF FIRST-CLASS QUALITY; AND ANY SERVICES WILL BE PROVIDED IN A GOOD AND WORKMANLIKE MANNER AND IN ACCORDANCE WITH THE BEST INDUSTRY STANDARDS AND PRACTICES. The goods shall be unconditionally warranted for 12 months after final acceptance of the Work by Buyer. All warranties are in addition to any other rights of Buyer and shall survive inspection, delivery, acceptance, and payment. Seller shall assign in full, and without cost to Buyer, all warranties from Seller’s suppliers that are applicable to the goods, and deliver such assigned warranties with the goods. Seller acknowledges that, notwithstanding any specifications or other descriptions of the Work, Buyer is relying on Seller’s skill and judgment to furnish suitable Work for the purposes described herein.
7. Delivery; Packing; Shipping: TIME IS OF THE ESSENCE OF ANY PURCHASE ORDER OF BUYER. Title to the goods covered by this PO and all risk of dealing between the Parties or any waiver of a breach of any provision of the Contract Documents shall constitute a waiver of any other breach or of such provision. Should any provision of the Contract Documents be held invalid or unenforceable, the remaining terms will remain in full force and effect consistent with the terms of the Contract Documents taken as a whole. Seller is an independent contractor and not an agent of Buyer. The PO may be signed in any number of counterparts and each counterpart (when combined with all other counterparts) shall represent a fully executed original as if one copy had been signed by all of the Parties. Facsimile signatures shall be deemed as effective as original signatures. Paragraphs 4, 5, 8, 9, 10, 11, 13, 14 and 15 shall survive termination or expiration of the PO, in addition to any other provisions which by their nature should, or by their express terms do, survive beyond the termination or expiration of the PO. Nothing in the Contract Documents shall be construed to create any duty to, or standard of care with reference to, or any liability to, any person or entity other than the Parties, except for any indemnities pursuant to the indemnification obligations hereunder. loss and damage with respect thereto shall pass from Seller to Buyer when such goods have been delivered to Buyer at the F.O.B. point specified in this P.O.; provided, however, that the passage of title and risk of loss shall not constitute acceptance by the Buyer. Shipment and delivery of goods shall be in strict accordance with the instructions contained in the Contract Documents. In cases where freight is to be paid by Buyer, all goods shall be shipped by Seller via the particular method of transportation and/or route selected by Buyer, if Buyer has specified a method of transportation and/or route in the Contract Documents, otherwise, the difference in freight and extra cost in cartage shall be at Seller’s sole expense. Such selection by Buyer shall not alter the point at which title and risk of loss pass to Buyer as provided for in this Paragraph. The terms of delivery of the Contract Documents shall be governed by the latest provisions of the Incoterms issued by the International Chamber of Commerce. No charge of any kind, including, charges for boxing, packaging storage, fuel surcharges, energy charges, or cartage shall be allowed. All goods covered by this PO shall be suitably packed to secure the lowest transportation costs and in accordance with Applicable Laws and the requirements of common carriers. A packing slip shall be included with each shipment of goods hereunder and all packages and containers must be marked to indicate contents, quantity, and gross and net weights. For shipments not so marked or not accompanied by a packing slip, the Buyer’s contents, quantity, and weight determinations shall be conclusive. The Buyer’s order number(s) and the Seller’s name must be plainly marked on all invoices, packages, containers, packing slips, bills of lading, and shipping orders. Buyer reserves the right to accept or reject, in whole or in part, partial or excess deliveries of goods. Storage, handling, and return shipping charges for, and any other charges related to, such partial or excess deliveries rejected by Buyer shall be at Seller’s sole expense. Any provision herein for the delivery or performance of Work by installments shall not be construed as making Seller’s obligations severable. Unless this PO specifies otherwise, all costs, fees, and expenses relating to the transportation, shipping, handling or insurance, of the Work sold or provided hereunder, unless expressly imposed on Buyer by Applicable Law, shall be borne and paid by Seller.
8. Payment Terms: In the absence of contrary payment terms in the Contract Documents and subject to the terms of the Contract Documents, amounts properly payable under the Contract Documents and not otherwise disputed by Buyer will be paid by Buyer within 30 calendar days after receipt and acceptance of the goods by Buyer or completion of performance and acceptance by Buyer of any services covered by this PO, or receipt of an invoice therefore in good order, whichever occurs later. Amounts payable under the Contract Documents shall be invoiced by Seller and paid by Buyer in U.S. Dollars. C.O.D. shipments will not be accepted and drafts will not be honored. Seller waives any right it may have under Applicable Laws to demand cash delivery or to otherwise change or add to the payment terms specified in the Contract Documents.
9. Books and Records; Audit: Seller shall, and shall ensure that its subcontractors shall, maintain a true and correct set of records pertaining to all activities relating to the Seller’s performance of its obligations under the Contract Documents and all transactions related thereto, during the term commencing upon the Parties’ acceptance of this PO and expiring four (4) years after completion of Seller’s performance, or such greater period of time as may be required under Applicable Laws. Any representative(s) authorized by the Buyer may audit all such records of Seller and its subcontractors at any time during the term of this PO and during the four (4) year period after completion of performance. Seller shall cooperate fully with Buyer during the audits performed hereunder, including furnishing Buyer with copies of all requested documents. The buyer shall have the right to obtain statements from Seller’s personnel in the course of such audits.
10. Intellectual Property: SELLER REPRESENTS AND WARRANTS THAT THE SALE, PROVISION, USE OR RESALE OF ANY OF THE WORK OR SERVICE RESULTS (DEFINED IN PARAGRAPH 11 BELOW) WILL NOT INFRINGE ANY UNITED STATES OR FOREIGN PATENT, COPYRIGHT, TRADEMARK, OR OTHER INTELLECTUAL PROPERTY RIGHTS OR PROPRIETARY INTERESTS OF THIRD PARTIES. SELLER SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS BUYER AND ITS PARENT, SUBSIDIARY AND AFFILIATED ENTITIES, PARTNERS, AND THE RESPECTIVE DIRECTORS, OFFICERS, MANAGERS, MEMBERS, EMPLOYEES, AGENTS, SHAREHOLDERS, REPRESENTATIVES, INSURERS, SUCCESSORS AND PERMITTED ASSIGNS OF EACH OF THEM; (ALL THE FOREGOING, INDIVIDUALLY OR COLLECTIVELY, THE “BUYER INDEMNIFIED PARTIES”) AND ALL CUSTOMERS OF BUYER, AGAINST ALL SUITS AND ACTIONS AT LAW OR IN EQUITY AND FROM ALL DAMAGES, CLAIMS, AND DEMANDS FOR ACTUAL OR ALLEGED INFRINGEMENT OR VIOLATION, OR CONTRIBUTORY INFRINGEMENT OR VIOLATION, OF ANY UNITED STATES OR FOREIGN PATENT, COPYRIGHT, TRADEMARK, INTELLECTUAL PROPERTY RIGHTS, OR PROPRIETARY INTERESTS OF THIRD PARTIES BY REASON OF THE SALE, USE, PROVISION, OR RESALE OF THE WORK OR SERVICE RESULTS COVERED BY THIS PO (COLLECTIVELY, ” INFRINGEMENT CLAIMS”). SELLER SHALL AT ITS SOLE EXPENSE DEFEND ALL SUCH INFRINGEMENT CLAIMS AND SHALL PAY ALL CHARGES OF ATTORNEYS AND CONSULTANTS AND ALL COSTS AND OTHER EXPENSES ARISING THEREFROM. BUYER IN ITS SOLE DISCRETION MAY RETURN TO SELLER FOR FULL REFUND ANY ACTUALLY OR ALLEGEDLY INFRINGING GOODS.
11. Defective Items: If Buyer discovers that any Work or the results of the performance of any services (“Service Results”) covered by this PO are defective (excepting any Buyer faulty specifications in the Contract Documents) in materials, workmanship, fabrication or design, are otherwise defective, do not fully conform with the Contract Documents, do not meet Seller’s warranties, express or implied, or are otherwise not as ordered, or Seller breaches any material term or condition of this PO, at Buyer’s option, Buyer may, in addition to any other remedies available under the Contract Documents, in equity or at law, either (a) reject or revoke acceptance of the defective or nonconforming goods and, to the extent it is commercially reasonable and within Buyer’s control, hold them for a reasonable period of time under the circumstances (awaiting Seller’s shipping instructions) or return them, both at Seller’s risk and at Seller’s sole cost and expense for storage, handling, transportation and any other related costs and expenses, (b) reject or revoke acceptance of the defective or nonconforming Work or Service Results and, by sending written notice to Seller, require Seller at its sole cost and expense to replace, correct or repair the defective or nonconforming Work or Service Results to a condition reasonably satisfactory to Buyer; or (c) accept such Work or Service Results with an equitable adjustment in price. Any repaired, corrected or replaced Work or Service Results shall be additionally warranted against defects for 12 months after completion of such repair, correction, or replacement. Upon Buyer’s rejection or revocation of acceptance, Buyer may cover the same with another supplier, and Seller agrees to pay Buyer on demand for all loss, damage, costs, attorneys’ and consultants’ fees, and other charges incurred or made by Buyer in connection with such replacement order, together with interest thereon from the date incurred at the highest rate allowed by Applicable Law. Upon Buyer’s exercise of option 11 (b), Seller shall immediately, after receiving notice from Buyer of such, proceed, at Seller’s sole cost and expense, to replace, correct, or repair such Work or Service Results, including providing parts, freight, and labor for removal and reinstallation. The rights and remedies of Buyer hereunder are cumulative of and in addition to one another and are cumulative of and in addition to any other rights or remedies that Buyer may have under Applicable Laws.
12. Termination for Convenience: Buyer shall have the right to terminate this PO, in whole or in part, without the consent or fault of Seller for the convenience of Buyer at any time with respect to undelivered goods or unperformed services, except with respect to goods specifically manufactured for Buyer, upon written notice to Seller. In such an event and subject to the terms of the Contract Documents, the Buyer shall be responsible for payment of only that Work or Service Results received and accepted by Buyer and such payment shall be Buyer’s only liability to Seller for such convenience termination. Seller agrees to release Buyer from any liability or obligation with respect to this PO or the part thereof so canceled.
13. Termination for Default: Buyer shall have the right to terminate any PO, in whole or part, at any time, if Seller: (a) fails to make any delivery in accordance with the agreed delivery date; (b) fails to observe or comply with any of the other instructions, terms, conditions, or warranties applicable to this PO; (c) fails to make progress so as to endanger full and timely performance of this PO; or (d) is subjected to any proceedings by or against it in bankruptcy or insolvency, for the appointment of a receiver or trustee, or for an assignment for the benefit of its creditors. Clauses (a), (b), (c), and (d) together or separately shall be known as “Event of Default”.
If Seller’s financial position deteriorates to such an extent that in Buyer’s opinion Seller’s capability adequately to fulfill Seller’s obligations under any PO has been placed in jeopardy, Buyer may require from Seller prompt delivery of a financial statement (to contain such reasonable information as Buyer may request) for the purpose of determining Seller’s financial responsibility. In the event of a termination due to an Event of Default, the Buyer shall be entitled to any and all damages, losses, costs, and expenses incurred by Buyer arising out of or resulting from such Event of Default.
14. Assignment: Seller shall not assign or transfer the Contract Documents nor assign or transfer any of its rights, or obligations hereunder in whole or in part, or assign or transfer funds due Seller hereunder, without Buyer’s prior written consent which consent will not be unreasonably withheld or delayed. Any attempted assignment, transfer, or delegation by Seller without the prior written consent of Buyer shall be void and shall constitute a material breach by Seller. The Contract Documents and any rights and obligations hereunder shall be assignable by Buyer to any entity controlled by, controlling, or under common control with Buyer. The Contract Documents shall be binding upon Seller and Buyer and shall inure to the benefit of and be enforceable by their respective successors and permitted assigns.
15. General Indemnification: SELLER SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS THE BUYER INDEMNIFIED PARTIES (AS THE TERM “BUYER INDEMNIFIED PARTIES” IS DEFINED IN PARAGRAPH 10 ABOVE) AGAINST ALL LOSSES, DAMAGES, LIABILITIES, CLAIMS, FINES, PENALTIES, COSTS, EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES AND COURT COSTS), JUDGMENTS, AWARDS AND SETTLEMENT AMOUNTS (SEPARATELY OR COLLECTIVELY, THE “CLAIMS”) ARISING FROM, RELATING TO, OR IN ANY WAY CONNECTED WITH THIS P.O. OR THE WORK OR SERVICE RESULTS SOLD OR PROVIDED HEREUNDER, INCLUDING CLAIMS WHICH ARE IN ANY WAY ATTRIBUTABLE TO (I) ANY ACT OR OMISSION, INCLUDING NEGLIGENCE, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, BY SELLER OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY SELLER OR ANYONE FOR WHOSE ACTS OR OMISSIONS SELLER MAY BE LIABLE (II) ANY BREACH OF ANY OF SELLER’S REPRESENTATIONS OR WARRANTIES (INCLUDING UNDER APPLICABLE LAW) OR ANY OTHER PROVISION UNDER THE CONTRACT DOCUMENTS; OR (III) ANY STRICT LIABILITY OR PRODUCT LIABILITY OF ANY PARTY HERETO OR THE BUYER INDEMNIFIED PARTIES. BUYER AND SELLER EXPRESSLY AGREE THAT THE INDEMNITY, DEFENSE AND HOLD HARMLESS OBLIGATIONS UNDER THIS PARAGRAPH 15 SHALL APPLY REGARDLESS OF WHETHER OR NOT SUCH CLAIM IS CAUSED BY THE JOINT OR CONCURRENT NEGLIGENCE, FAULT, WILLFUL MISCONDUCT, STRICT LIABILITY, BREACH OF CONTRACT, OR OTHER BASIS OF LIABILITY OF BUYER INDEMNIFIED PARTIES, IT BEING AGREED THAT IN THIS EVENT THE PARTIES’ RESPECTIVE LIABILITY FOR CLAIMS UNDER THIS PARAGRAPH 15 SHALL BE DETERMINED IN ACCORDANCE WITH THE PRINCIPLES OF COMPARATIVE NEGLIGENCE. AT BUYER’S OPTION, SELLER SHALL, AT SELLER’S SOLE EXPENSE WITHOUT REGARD TO THE EXTENT OF ANY NEGLIGENCE OR OTHER LIABILITY OF BUYER INDEMNIFIED PARTIES, (A) ASSUME FULL RESPONSIBILITY FOR THE DEFENSE OF BUYER INDEMNIFIED PARTIES FROM AND AGAINST ANY CLAIMS UPON RECEIPT OF NOTIFICATION FROM BUYER TO DO SO AND WITH COUNSEL REASONABLY ACCEPTABLE TO BUYER; PROVIDED, HOWEVER, THAT BUYER INDEMNIFIED PARTIES MAY BE REPRESENTED BY AND ACTIVELY PARTICIPATE IN THE DEFENSE AGAINST SUCH CLAIMS THROUGH ITS OWN COUNSEL, OR (B) PAY BUYER INDEMNIFIED PARTIES ALL REASONABLE ATTORNEYS’ AND CONSULTANTS’ FEES AND ALL COSTS AND OTHER EXPENSES ARISING FROM THE DEFENSE AND SETTLEMENT THEREOF BY THE BUYER INDEMNIFIED PARTIES. THE INDEMNITY OBLIGATIONS HEREIN SHALL BE CONSIDERED TO BE MODIFIED AS REQUIRED TO EXCLUDE INDEMNIFICATION WHICH IS EXPRESSLY PROHIBITED BY APPLICABLE LAW, WITH ALL OTHER OBLIGATIONS OF SELLER UNDER THE CONTRACT DOCUMENTS ENFORCED TO THE EXTENT PERMITTED BY APPLICABLE LAW.
16. Governing Law: The validity and interpretation of the Contract Documents, any disputes hereunder, and of the rights and obligations of Buyer and Seller hereunder shall be governed by and construed according to the laws of the state of California, without giving effect to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Contract Documents.
17. Dispute Resolution: If a dispute or Claims arising out of or relates to the Contract Documents, Seller shall continue to perform under the Contract Documents, and the Parties will attempt to settle their differences through direct negotiations. If such negotiations are unsuccessful, litigation may be brought exclusively in a federal or state court within Orange County, California. Seller and Buyer hereby consent to personal jurisdiction in any legal action, suit, or proceeding brought in any federal or state court within Orange County, California, having subject matter jurisdiction, and irrevocably waive, to the fullest extent permitted by Applicable Laws, any claim or any objection it may now or hereafter have that venue or personal jurisdiction is not proper with respect to any such legal action, suit, or proceeding brought in such a court in Orange County, California, including any claim that such legal action, suit, or proceeding brought in such court has been brought in an inconvenient forum.
18. Miscellaneous: The terms “include”, “includes,” and “including” or variant thereof mean including without limitation unless expressly stated to the contrary. No course of dealing between the Parties or any waiver of a breach of any provision of the Contract Documents shall constitute a waiver of any other breach or of such provision. Should any provision of the Contract Documents be held invalid or unenforceable, the remaining terms will remain in full force and effect consistent with the terms of the Contract Documents taken as a whole. Seller is an independent contractor and not an agent of Buyer. The PO may be signed in any number of counterparts and each counterpart (when combined with all other counterparts) shall represent a fully executed original as if one copy had been signed by all of the Parties. Facsimile signatures shall be deemed as effective as original signatures. Paragraphs 4, 5, 8, 9, 10, 11, 13, 14 and 15 shall survive termination or expiration of the PO, in addition to any other provisions which by their nature should, or by their express terms do, survive beyond the termination or expiration of the PO. Nothing in the Contract Documents shall be construed to create any duty to, or standard of care with reference to, or any liability to, any person or entity other than the Parties, except for any indemnities pursuant to the indemnification obligations hereunder.