TERMS AND CONDITIONS
APPLICATION AND INTERPRETATION: Seller terms are expressly rejected and excluded. Acceptance of any Order by Seller is limited to acceptance of the express Purchase Terms and Conditions set forth herein. Any general or specific terms and conditions of Seller are hereby expressly rejected by Buyer and excluded. Notwithstanding any language contained in any document of Seller stating the language of such document or any other document referenced therein supersedes any other language, if Seller chooses to accept an Order, Seller specifically acknowledges and agrees that these Purchase Terms and Conditions control. Any proposal, counter-proposal, confirmation, or any other writing of whatever kind inconsistent with or in addition to the terms of the Order and these Purchase Terms and Conditions shall not be binding upon Buyer. Buyer’s acceptance of or payment for Goods and/or Services will not constitute acknowledgement or acceptance of Seller’s conditions of sale.
SHIPPING: (a) All goods are sold F.O.B. destination unless otherwise specified by Buyer in the Order. (b) Buyer’s production schedules are based upon the delivery of the items to Buyer on the date(s) specified on the face of this order. If delivery date(s) cannot be met, Seller must immediately inform Buyer in writing of Seller’s best possible delivery date(s) subject to Buyer’s acceptance. (c) Items must not be delivered prior to the listed delivery date. (d) If deliveries are not made at the time agreed upon, Buyer may (i) request that Seller ship the items by other than designated routing to expedite delivery (cost of alternative means of shipment shall be borne by Seller), or (ii) cancel the order in whole or in part and purchase comparable items elsewhere and hold Seller accountable for any loss or additional cost arising from such expedited delivery or cancellation. (e) Shipments must be described per the carrier’s tariffs to obtain the lowest freight rate available. All shipments to be forwarded on one day must be consolidated. (f) Items furnished in excess of the quantity specified or of any allowable overage may be retained by Buyer at no additional cost, unless Seller notifies Buyer within 45 days after shipment that it desires the return thereof at Seller’s expense. (g) An original and two duplicate invoices must be mailed to Buyer’s Accounting Department when items are shipped. Invoices shall state the shipping point of the items invoiced. Each case or parcel and accompanying packing list of contents must show Buyer’s order number. If no packing list accompanies the shipment, Buyer’s count will be conclusive. (h) if the items are being imported into the United States, then Seller shall include on both the pack list and the invoice, the proper United States HTS Code for every line item.
WARRANTY: (a) Seller warrants that items will conform to any specifications, drawings, samples or other description furnished or adopted by Buyer, or, if not ordered to specifications, will be fit and sufficient for the purpose intended, and that all items will be merchantable, of new and only new material and workmanship, and free from defect. (b) Seller warrants all items to be manufactured, processed, packaged, labeled, marked, tagged, tested, certified, weighed, inspected, shipped and sold in compliance with all applicable federal, state, provincial and local laws and regulations, including, all laws and regulations relating to health, safety, serial numbers, labeling and country of origin designations; all FDA, toxic substance, OSHA, EPA, California CARB, ECHA, and RoHS regulations; Executive Order 11246 and related rules and regulations of California Proposition 65 and its related regulations. Seller agrees to execute and furnish to Buyer, upon request, all reasonable certifications and other documents regarding compliance with such laws and regulations. (c) Seller warrants that Seller has good, new and only new marketable title to the items and such items will be transferred free and clear of all liens, claims and encumbrances. (d) Such warranties, together with Seller’s service warranties and guarantees, if any, shall survive inspection, testing, acceptance of, and payment for the items and shall run to Buyer, its affiliates, successors, assigns and customers.
INDEMNITY: Seller shall defend, hold harmless and indemnify Buyer from and against any and all claims arising out of (i) any actual or alleged death or injury to any person, damage to any property, or any other damage or loss, by whomsoever suffered, claimed to result in whole or in part from any actual or alleged defect in such items, whether latent or patent, including any alleged failure to provide adequate warnings, labeling or instructions, (ii) any actual or alleged violation of any law, statute or ordinance of any administrative order, rule or regulations relating to the items, or to their manufacture, shipment, labeling, use or sale, or any failure to provide an MSDS or certification, (iii) any act, activity or omission of Seller, including activities on Buyer’s premises and the use of any vehicle, equipment, fixture or material of Seller in connection with any sale to or service for Buyer, (iv) any negligence or willful and wanton misconduct of the Seller or any of its employees or agents, and (v) any breach of representation or warranty made by Seller pursuant to this Agreement.
INSURANCE: Seller shall procure and maintain commercial general liability insurance, including coverage for contractual liability, product liability, personal injury, bodily injury and property damage with a minimum limit of $5,000,000 per occurrence; these coverage limits may by achieved through a combination of primary and umbrella policies. Such insurance shall be written on an “occurrence” policy form and not a “claims made” policy form. Such insurance shall contain an endorsement by which the insurer designates Buyer as additional insured. Such insurance shall be primary and non-contributory. Seller agrees that Seller and Seller’s insurer(s) shall have no claim or right of subrogation against Buyer based on any loss or liability insured against under the foregoing insurance. Seller further agrees to have delivered to Buyer a current Certificate of Insurance, including renewals thereof, showing the coverage provisions stated above and properly illustrating Buyer as the certificate holder and additional insured. Additionally, Seller and its insurer(s) shall provide thirty (30) days prior written notice to Buyer of non-renewal or cancellation of Seller’s coverage. The insurance coverage carried by Seller hereunder must be provided by a financially solvent company that maintains at least an “A-” rating in Bests’ guide.
INSPECTION/REJECTION: All items shall be received subject to Buyer’s right of inspection. Neither acknowledgment of receipt on packing slips or bills of lading by any person nor payment shall not constitute acceptance. Items which are delivered in quantity may be inspected by sampling. If upon inspection Buyer determines that the items are non-conforming, it shall have the right to preserve and keep a sample of the items tendered for the purpose of having evidence of a kind and quality of the tendered items. In the event any of the items to be delivered hereunder fail to conform to the order, or in the event delivery is not made as herein provided, Buyer may, at its option, either return for credit or refund or require prompt correction or replacement of any defective or non-conforming item or part thereof. If Buyer rejects any part of the items delivered or tendered under this order, it shall notify Seller of such rejection in writing, within one year after delivery, or one year after receipt of satisfactory qualification test reports, if required hereunder, whichever is later. The cost of returning any defective or non-conforming item to Seller and the delivery to Buyer of any corrected or replaced items shall be borne by Seller. Items required to be corrected or replaced shall be subject to the terms of this order in the same manner and to the same extent as items originally delivered under this order. Additionally, in the event that during the twenty-four (24) month period following Seller's delivery to Buyer any items furnished hereunder or an end product employing any such items as a part or component thereof is/are returned by Buyer's customer or end-users for any reason, Buyer shall have the unconditional right to seek recourse from the Seller in the full amount of the product's cost, in addition to all associated freight costs (collectively "Right of Recourse"). For the avoidance of doubt, Buyer's Right of Recourse shall not be contingent in any way on a third party inspection of the returned product(s). For the avoidance of doubt, Buyer's Right of Recourse shall not be contingent in any way on a third party inspection of the returned product(s). In addition to such Right of Recourse, in the event Buyer must store a returned product(s) for any period beyond thirty (30) business days prior to shipping such returned product(s) back to Seller ("Storage Period"), Buyer shall also have the right, in its sole discretion, to charge Seller a fee for such storage, in addition to all fees related to maintenance and/or scrapping or destruction of the returned product(s), if any (collectively "Storage Fees"). Moreover, Buyer may determine, in its sole direction, the following: (1) after the Storage Period has ended, whether or not to scrap or destroy the returned product(s) in a manner Buyer deems commercially reasonable and appropriate; and (2) whether such Storage Fees are satisfied and collected by either: (a) separate invoice to Seller; or (b) offset of money or amounts already owing and outstanding to Buyer from the Seller.
TERMINATION: (a) Buyer may terminate this order or any part thereof prior to delivery of the items, by written notice, without cause at any time. Any termination claim relating thereto must be submitted to Buyer within 60 days after the effective date of termination. (b) If Seller fails to observe or comply with any of the instructions, terms, conditions, or warranties applicable to this order, fails to make progress so as to endanger performance of this order, or upon any proceedings by or against Seller in bankruptcy or insolvency or appointment of a receiver or trustee or an assignment for the benefit of creditors, Buyer may, without liability and in addition to any other right or remedy provided by this order or by law, terminate all or any part of this order by telegraphic or other written notice to Seller.
PATENT INDEMNITY: Seller warrants that the sale and use of the items shall not infringe any patent issued by the United States or any foreign country. Seller will defend any suit for any patent infringement brought against Buyer. In the event that such action is brought against Buyer, it shall notify Seller promptly of the commencement thereof. In the event of a judgment against Buyer for such patent infringement, Seller will pay the same and will indemnify Buyer against any liability, damage or expenses incurred in connection with any such suit. If Buyer is enjoined from using the items hereby sold, Seller shall repurchase such items from Buyer at the original purchase price.
EXCUSABLE DELAYS: Failure of Seller to make, or Buyer to take, all or any part of any delivery hereunder, if such failure is due to causes 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, freight embargoes, and unusually severe weather, shall not subject such party to any liability to the other party; provided, however, that in the event Seller is unable to meet the delivery schedule provided by Buyer, due to conditions beyond Seller’s control, Buyer reserves the right to refuse shipments on any other schedule unless such schedule has been submitted to and approved in advance by Buyer.
ASSIGNMENT: Neither this order nor any rights or obligations herein may be assigned or subcontracted by Seller without the prior written consent of Buyer.
CHANGES: Buyer may at any time by a written notice make changes in the specifications, designs or drawings, samples or other description to which the items are to conform, in methods of shipment and packaging, or place of delivery. If any such change causes an increase or decrease in the cost of, or the time required for, the performance of any part of the work under this order, an equitable adjustment shall be made in the price or delivery schedule, or both, and this order modified in writing accordingly. Claims by Seller for an adjustment must be made in writing within 30 days of receipt of such notice. Buyer may, in its discretion, act upon any such adjustment at any time prior to final payment under this order. Nothing in this clause shall excuse the Seller from proceeding without delay to perform this order as modified.
INFORMATION: (a) Drawings, data, design, inventions and other technical information supplied by Buyer shall remain Buyer’s property and shall be held in confidence by Seller. Such information shall not be reproduced, used or disclosed to others by Seller without Buyer’s prior written consent, and shall be returned to Buyer upon completion by Seller of its obligations under this order or earlier upon demand. (b) Any information which Seller may disclose to Buyer with respect to the design, manufacture, sale or use of the items covered by this order shall be deemed to have been disclosed as part of the consideration for this order, and Seller shall not assert any claim against Buyer by reason of Buyer’s use thereof. Seller acknowledges that a breach of these obligations would result in irreparable harm to Buyer and that Buyer shall be entitled, in addition to all other remedies available at law or in equity, to injunctive relief in the event of a breach or threatened breach thereof.
BUYER’S PROPERTY: (a) All property used by Seller in connection with this order which is owned, furnished, or paid for by Buyer, materials, tools, dies, jigs, molds, patterns, fixtures, equipment, drawings and other technical information, specifications, and any replacement thereof, shall be and remain the property of Buyer subject to removal and inspection by Buyer at any time without cost or expense to Buyer and Buyer shall have free access to Seller’s premises at any commercially reasonable time for the purpose of inspecting or removing such property. All such property shall be identified and marked as Buyer’s property, used only for this order and adequately insured by Seller at its expense for Buyer’s protection. Seller 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 hereunder, Seller shall furnish Buyer with a list thereof and shall comply with any Buyer disposition instructions applicable thereto. Buyer shall not be obligated to pay any invoices for tooling until the first article produced there from shall have been received and accepted. (b) Materials furnished by Buyer on other than a charge basis in connection with this order shall be deemed to be held by Seller as bailee thereof. Seller agrees to pay Buyer’s replacement cost for all such material spoiled or otherwise not satisfactorily accounted for.
RIGHTS, REMEDIES, AND WAIVER: The rights and remedies provided Buyer herein shall be cumulative and in addition to any other rights and remedies provided by law or equity. A waiver of a breach of any provision hereof must be in writing and shall not constitute a waiver of any other breach.
BUYER APPROVALS AND REVIEWS: The review or approval by Buyer of any work hereunder or of any designs, drawings, specifications or other documents prepared hereunder shall not relieve Seller of any of its obligations under this order nor excuse or constitute a waiver of any defects or non-conformities in any items furnished under this order nor change, modify or otherwise affect any of the provisions of this order, including, but not limited to, the prices and delivery schedules contained herein.
TAXES: Seller assumes exclusive liability under all laws that impose taxes or other exactions on the manufacture or sale of the items to be furnished hereunder, or any component part thereof, or on any process or labor involved therein, or on any services to be rendered by Seller, and to pay any and all such taxes except those Buyer is by law required to pay. Any taxes to be paid by Buyer shall be separately stated on the invoice. Prices shall not include any taxes for which Buyer has furnished a valid exemption certificate.
LIENS, CLAIMS AND ENCUMBRANCES. Seller warrants and represents that all the goods will, when delivered hereunder, be free and clear of all liens, claims or encumbrances of every kind.
INDEPENDENT CONTRACTOR. Nothing in this Agreement shall be construed as creating any partnership, joint venture, employment or agency relationship between the parties, or as authorizing either party to act as agent for the other
SEVERABILITY. If any part of this agreement is found to be illegal or unenforceable, that part shall be severed from the contract and the rest of the agreement shall be enforceable as written.
GOVERNING LAW: This agreement will be governed by and construed in accordance with the laws of the State of Illinois, without regard to principles of conflicts of laws, except to the extent of the Federal law may apply.
ARBITRATION. At the sole discretion and option of the Buyer, all disputes relating to this Agreement and the transactions contemplated hereby shall be governed by binding arbitration proceedings, outside of litigation proceedings. Such disputes encompass any and all disputes arising out of or in connection with the negotiation, execution, interpretation, performance or nonperformance of this Agreement (including validity, scope, and enforceability of this arbitration provision). Such arbitration proceedings shall be decided in Chicago, Illinois, by a panel of one (1) arbitrator. If the parties cannot agree on an arbitrator, both parties agree to surrender the decision to the American Arbitration Association. Such arbitration shall be conducted in accordance with the Rules of the American Arbitration Association in accordance with its Commercial Arbitration Rules. The decision of the arbitrators shall be final and awards shall be enforceable by any courts having jurisdiction over a party against whom such award has been made. Each party shall bear its own legal fees and expenses incurred during such disputes. Subject to Buyer's sole option and discretion, it is understood that if any such dispute is litigated, it shall be for the purpose of obtaining a judicial determination of the question of law and/or fact, which is fair and reasonable. Notwithstanding the foregoing, the parties hereto shall proceed diligently with the performance of this Agreement pending such judicial determination of any dispute hereunder.
JURISDICTION: Subject to the Arbitration provision above, Buyer and Seller hereby agree and consent to be subject to the exclusive jurisdiction of the United States District Court for the Northern District of Illinois (“Court”), agree to accept service of process by mail, and hereby waive the right to assert the lack of personal or subject matter jurisdiction or improper venue in connection with any such suit, action or other proceeding relating in any way to interpretation or enforcement of this Agreement. In furtherance of foregoing, each parties: (i) waives the defense of inconvenient forum, (ii) agrees not to commence in any suit, action or other proceeding arising out of this Agreement or any transactions contemplated hereby other than in such court, and (iii) agrees that a final judgment in any such suit, action or other proceeding shall be conclusive and may be enforced in other jurisdictions (including China) by suit or judgment or in any other manner provided by law.
WAIVER OF TRIAL BY JURY. SELLER HEREBY IRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY ACTION IN WHICH SELLER IS A PARTY.
MISCELLANEOUS: (a) Time is of the essence in the performance of this order by Seller. (b) Seller shall indemnify and hold Buyer harmless against all damages and expenses incurred by Buyer as a result of (i) Buyer being required to recall from Buyer’s customers or others any items furnished hereunder or an end product employing any such items as a part or component thereof, and (ii) Buyer being required to repair, replace or refund the purchase price of such items or end product. (c) Buyer shall not be required to consult with, or seek Seller’s concurrence in, the reporting by Buyer to any administrative or regulatory body, of any information which Buyer obtains indicating that the items furnished by Seller either fail to conform to any standard required by law, or constitute or create of themselves or within the end product of which they are a part or component, a situation requiring recall or notice as defined by the applicable law. Seller hereby releases and discharges Buyer from any liability for any error or omission in the reporting of such information unless such error or omission is attributable to the willful conduct of Buyer. Seller shall prepare, maintain and file with the appropriate authority such records and reports as pertain to the manufacture, sale, use and characteristics of the items furnished to Buyer hereunder as may be required by any federal, state or local law or regulation and shall provide Buyer with copies of such records as Buyer may require and permit Buyer access to Seller’s records to permit Buyer to ascertain Seller’s compliance hereunder. (d) Seller represents that (i) the prices charged for the items covered by this order are the lowest prices charged by Seller to buyers of the same class as Buyer under conditions similar to those specified in this order and that prices comply with applicable government regulations in effect at time of quotation, sale or delivery, (ii) any price reduction made in the items covered by this order subsequent to its placement therefore will be applicable to it, and (iii) neither Seller 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 this order or securing favorable treatment with respect thereto.
CYBER-SECURITY AND INFORMATION PROTECTION The following provisions relating to cyber-security and information protection shall apply to this Purchase Order and shall be incorporated into these Terms and Conditions: (a) The obligations of Seller under these Terms and Conditions shall include compliance with any applicable Data Protection Laws (including but not limited to the California Consumer Protection Act of 2018, California Privacy Rights Act of 2020, and the Virginia Consumer Data Protection Act) and any cyber-security or information protection requirements of Buyer’s customers that have been disclosed to Seller (b) The term “excusable delay” in these Terms and Conditions shall not mean or include any cyber-security event or incident or information system disruption (a “cyber-security incident”). (c) in the event of a cyber-security incident that causes any actual or potential breach by Seller of this Order, including, without limitation, any violation of any Data Protection Law or any delay in supplying the Goods or Services, Seller shall inform Buyer by telephone call of such cybersecurity incident, as soon as reasonably possible but in any event within twenty-four (24) hours of Seller discovering such cyber-security incident. Seller shall (i) provide Buyer with a summary of known information about such cyber-security incident, (ii) implement required remedial measures to remedy the effects of such cyber-security incident, (iii) provide specific information about the cyber-security incident and response upon request by Buyer, and (iv) within two (2) weeks of completion of Seller’s investigation of the cyber-security incident, provide a report to Buyer, including a description of the incident, the causes of such events leading to the cyber-security incident, how Seller has mitigated against future events of a similar kind, the timeline of the incident, the suspected perpetrators of the cyber-security incident, what data or information or access to such data or information may have been affected by such incident, and any financial impact to the Buyer related to such incident. (d) In connection with the above, Seller shall, at its expense, promptly investigate the cyber-security incident and co-operate fully with law enforcement and regulatory authorities and Buyer in its investigation of same, including by providing access and information to Buyer, as or when requested by Buyer. Seller shall fully implement all required remedial actions identified to stop such cyber-security incident from continuing, or prevent a future incident, no later than two (2) months after the completion of Seller’s investigation of such incident. Seller shall provide Buyer with the name and contact information of a primary security representative of Seller who can be reached by Buyer, twenty-four (24) hours per day, seven (7) days per week. (e) In the event that Buyer has suffered a loss as a result of any cyber-security incident in connection with the payment for the Goods and/or Services provided by Seller under this Order, Seller shall only be entitled to receive payment under this Order for such Goods and Services only after and to the extent of, and in proportion to, Buyer’s completion of any and all investigations related thereto and subject to all indemnification obligations of Seller, and all set-off rights of Buyer, under this Order. (f) Seller shall, at its expense, implement and maintain appropriate technical and organizational measures and other protections for the proper security of all data or information, including the prevention of password theft or loss or unauthorized access to or use of any data or information and Seller shall notify Buyer promptly of any password theft or loss or unauthorized access or use of any data or information. Furthermore, such measures and other protections include the implementation and enforcement of physical security measures at Seller’s own premises with respect to its access and maintenance of Information that (i) are at least equal to industry standards for such types of premises, and (ii) provide industry standard technical and organizational measures and other protections against accidental or unlawful, theft, loss, or alteration of, or unauthorized disclosure or access to data or information. Seller’s information systems shall not contain any virus, malware, Trojan horse, worm, time bomb or other computer programming routine, device or code that could reasonably be anticipated to damage, delete, destroy, replicate, lock, disable, detrimentally interfere with, surreptitiously intercept or expropriate any system. Seller shall implement all required measures and other protections to ensure that its information systems do not contain any of the foregoing, including any backdoor or other computer programming routine, device or code that could adversely affect the security or confidentiality of Buyer’s systems or data or information. (h) Seller shall take all reasonable measures to secure and defend its physical premises, information systems and equipment against “hackers” and others who may seek, without authorization, to modify or access Seller’s or Buyer’s systems or the data or information found therein and shall periodically test its information systems for potential areas where security could be breached. (i) Seller shall indemnify and hold Buyer and Buyer’s customers, and their respective representatives, employees, agents, customers, invitees, subsidiaries, affiliates, successors and assigns, harmless from and against all liabilities, claims, demands, losses, costs, damages and expenses of any nature or kind (including consequential and special damages, personal injury and property damages, lost profits, production interruption costs, inspection, handling and reworking charges, professional and other legal fees, and other costs associated with Buyer’s administrative time, labor and materials) arising from or as a result of Seller’s or its subcontractors’ or suppliers’ business or information systems relating to any cyber-security incident. No limitations on Buyer’s rights or remedies in any of Seller’s documents shall operate to reduce or exclude such indemnification. (j) Buyer shall have the right, either directly or through a reputable third party engaged by Buyer at its own expense, to visit Seller’s premises once per calendar year in order to review, audit and conduct a risk assessment of Seller’s business operations related to the Good or Services, Seller’s compliance with these Terms and Conditions, or any other premises in which Information is housed, including regarding technical infrastructure, information or data systems interaction, organization, quality, quality control, personnel engaged in providing Goods or Services, or validation of Seller’s current or ongoing internal controls to ensure proper technical and organizational measures and other protections are in place for the proper security of all data and information. Such audit, risk assessment and review will be comprised primarily of a walk-through of Seller’s premises and such other checks reasonably required to confirm compliance with the terms of this paragraph, subject to Buyer’s additional written requirements to Seller regarding the scope of Buyer’s access to Seller’s premises and data and information. Such audit, review or risk assessment shall occur at a reasonable time during normal business hours not more than once during any current calendar year and shall not unreasonably interfere with Seller’s or its operations.