- Capabilities
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Materials
Ceramics
Glass
Powders
The term “Supplier” and “Buyer” used throughout this Quotation/Sales Order refer to the Buyer and Supplier identified on the Order.
Buyer acknowledges that any and all Components supplied by Supplier pursuant to this Quotation/Sales Order shall constitute Standard Products or Buyer Designed Products (Products) as described in the Order. Order means the Buyers Order for the Products (but excluding any terms and conditions which the Buyer may purport to apply in any such order). Standard Products means any Component and off the shelf products which are generally sold by the Supplier to any of its customers subject to the Standard Specification. Standard Specification means the Suppliers specification for a Standard Product. “Buyer Designed Product” is defined as any Component made by Supplier in accordance with all or any of Buyer’s designs, specifications, parameters or machining or detailed part drawings, together with any design and applications engineering support provided by Supplier to Buyer in respect of any Component (Buyer’s design specifications. Buyer further acknowledges that any drawing, specification, depiction or prototype of any Buyer Designed Product provided to Buyer by Supplier hereunder has been prepared solely in accordance with Buyer’s design specifications, and Buyer acknowledges that all Components supplied by Supplier pursuant to this Quotation/Sales Order are subject to Buyer’s inspection, testing and approval, wherein such approval shall certify that the Component is a Buyer Designed Product made in accordance with Buyer’s design specifications for the Component or a Standard Product or any prototype of same. A “prototype” is defined as a non-final type, form, or instance of a Component. BUYER AGREES THAT ANY PROTOTYPE OF ANY BUYER DESIGNED PRODUCT SUPPLIED BY SUPPLIER WILL BE USED SOLELY FOR BENCH TEST EVALUATION AND CHARACTERIZATION AND THAT SAID PROTOTYPE WILL NOT BE IMPLANTED INTO HUMANS OR PUT TO USE IN HUMAN CLINICAL TRIALS WITHOUT SUPPLIERS PRIOR WRITTEN CONSENT. BUYER HAS TESTED OR WILL TEST THE PROTOTYPE OF ANY BUYER DESIGNED PRODUCT, AND BUYER HEREBY ACKNOWLEDGES AND AGREES THAT SAID PROTOTYPE MEETS BUYER’S SPECIFICATIONS.
Upon acceptance of this Quotation/Sales Order, Supplier agrees to supply and Buyer agrees to purchase the Components described for the specified prices (provided that Supplier may adjust prices for Components using rare earth materials to reflect cost increases for the relevant rare earth material(s) prior to shipment or performance). UNLESS ACCEPTED IN WRITING BY AN EXECUTIVE OFFICER OF SUPPLIER, ANY ADDITIONAL, DIFFERENT OR INCONSISTENT TERMS OR CONDITIONS IN BUYER’S ACCEPTANCE OF THIS QUOTATION/SALES ORDER, INCLUDING ANY DIFFERENT OR ADDITIONAL DRAWINGS, SPECIFICATIONS, PERFORMANCE STANDARDS, TESTING REQUIREMENTS OR THE LIKE NOT ATTACHED TO OR INCORPORATED BY REFERENCE IN THIS QUOTATION/SALES ORDER, WHETHER IN THE FORM OF A PURCHASE ORDER, ACKNOWLEDGMENT, CONFIRMATION OR OTHERWISE, ARE OBJECTED TO BY SUPPLIER AND SHALL NOT BE BINDING ON SUPPLIER NOR HAVE THE EFFECT OF PREVENTING THE FORMATION OF A CONTRACT OR OF VARYING OR OTHERWISE LEAVING OPEN ANY TERMS OR CONDITIONS. Neither Supplier’s failure to respond to any such additional, different or inconsistent terms or conditions, nor Supplier’s commencement of performance shall constitute assent thereto. These Sales Conditions form part of, and are to be interpreted together with, the body of the Quotation/Sales Order to which they are attached and any contract resulting herefrom (the “Contract”). In the event of any conflict or inconsistency between these Sales Conditions and the body of the Quotation/Sales Order, the latter will prevail. This Quotation/Sales Order may be revoked by Supplier at any time prior to acceptance by Buyer. Supplier may begin work on the Components covered by this Quotation/Sales Order based upon Buyer’s oral or e-mail confirmation of acceptance to be subsequently confirmed in writing by Buyer. IN THE EVENT WRITTEN CONFIRMATION IS NOT RECEIVED, OR SUCH WRITTEN CONFIRMATION PURPORTS TO IMPOSE DIFFERENT OR ADDITIONAL DRAWINGS, SPECIFICATIONS, PERFORMANCE STANDARDS, TEST REQUIREMENTS OR THE LIKE, SUPPLIER MAY TERMINATE THIS QUOTATION/SALES ORDER AND ANY CONTRACT AND CEASE ALL SUCH WORK. BUYER AGREES TO REIMBURSE SUPPLIER UPON DEMAND FOR ALL COSTS AND EXPENSES REASONABLY INCURRED OR COMMITTED IN PERFORMING OR PREPARING TO PERFORM IN ACCORDANCE WITH THIS QUOTATION/SALES ORDER, PLUS 15%.
This Quotation/Sales Order is issued solely to Buyer and is non-transferable. Supplier may assign any Contract, in whole or in part, to any affiliate of Supplier, or to any purchaser of substantially all of Supplier’s business or assets related to performance hereof.
Buyer agrees to indemnify and hold harmless Supplier and its affiliates, parents, shareholders, directors, officers, employees, successors and assigns from and against any and all liabilities, demands, claims, assessments, costs, judgments, awards, fines, sanctions, penalties, charges, damages, expenses (including any amounts paid in settlement, investigative costs, court costs and attorneys’ fees and costs), including those asserted by the Buyer or its parent, subsidiaries, directors , officers, employees, shareholders, affiliates and agents , successors and assigns or losses at any time incurred by any of them as a result of the manufacture or sale of Components or Products or any prototype of same , purchased by Buyer from Supplier hereunder, arising out of, related to or in connection with, in whole or in part, the design, manufacture, sale, re-sale or use of the Components or Products by any person, or any documentation or other data furnished by Supplier pursuant to the Contract or this Quotation/Sales Order, including without limitation, any manufacture, sale, re-sale or use of any thereof and any claims for personal injury, infringement, property damage or other economic loss, whether arising in contract, tort or under any other legal theory (including negligence of Supplier or strict liability). Buyer’s duty to defend Supplier against any such claims is triggered by written notice of any such claim submitted to Buyer by Supplier or on Supplier’s behalf. Supplier shall have the right to approve defense counsel retained to represent Supplier in any such claim, said approval not to be unreasonably withheld. Supplier’s delivery of not less than ninety percent of the quantity of each Product covered hereby will constitute satisfaction of Supplier’s obligations. Notwithstanding the foregoing, Buyer agrees to accept and pay for up to one hundred ten percent of the quantity of each such component covered hereby.
Buyer may cancel or modify this agreement only with Supplier’s written consent, which may be granted or withheld at Supplier’s sole discretion. Supplier may condition its acceptance of any change order or cancellation on Buyer’s payment of a change or cancellation charge, as applicable, or a modification of any delivery estimates or performance timetables. Any such charge will be set by Supplier in an amount sufficient to reimburse Supplier for any costs incurred or committed in performing or preparing to perform the order prior to such change or cancellation, to compensate Supplier for any loss of profit occasioned by such change or cancellation, and to reflect any increased costs of performance likely to be incurred by Supplier as a result of any accepted change order or cancellation.
Confidential Information means: (a) trade secrets and proprietary and confidential information of Supplier which is disclosed by Supplier to Buyer and all analyses, compilations, studies, prototypes or other documents or materials prepared by Buyer which may incorporate such information; and (b) the existence of a relationship between Buyer and Supplier and all information associated with such relationship. Buyer shall keep in confidence and not use other than for the sole benefit of Supplier, nor disclose or make available to any third party any Confidential Information. Confidential Information may be disclosed only to those employees of Buyer who (i) reasonably require access to such information for the benefit of the relationship between Buyer and Supplier; (ii) have been informed of the confidential nature of the Confidential Information; and (iii) agree to act in accordance with the terms and conditions of this confidentiality section. Buyer may only publish, use or disclose Suppliers name or identity(including, without limitation, in any advertisement, news release or patent application) with the prior written approval of Suppliers authorized representative.
Buyer shall inspect and test all Components and Products supplied by Supplier and shall verify that said Components and Products meet all Buyers design specifications and the requirements of any Contract and are suitable for Buyers use in an implantable device. Upon discovery of any nonconforming Component supplied to Buyer (each, a “Non-Conforming Component”), Buyer shall promptly notify Supplier of same. Should Buyer determine that any Component or Products supplied by Supplier hereunder does not meet all requirements of any Contract or Buyer’s design specifications or are not suitable for Buyers use in an implantable device, the parties agree to enter into further good faith negotiations regarding the supply of additional Components by Supplier to Buyer under this Quotation/Sales Order. Absent further agreement, nothing herein shall create any legal obligation on either party to proceed with the supply of any additional Components with respect to Non-Conforming Components. Buyer acknowledges that the fees and costs payable pursuant to this Quotation/Sales Order will remain due and payable as contemplated under any Contract, notwithstanding that the Components do not meet any or all of Buyer’s requirements. BUYER AGREES THAT NON-CONFORMING COMPONENTS SHALL NOT BE INCORPORATED INTO ANY DEVICE WHICH IS OR MAY BE IMPLANTED INTO HUMANS.
Supplier will use commercially reasonable efforts to meet any delivery estimates and performance timetables specified in this Quotation/Sales Order. IN NO EVENT WILL SUPPLIER BE LIABLE FOR DELIVERY OR PERFORMANCE DELAYS, REGARDLESS OF CAUSE. All Components or other deliverables shall be delivered FOB the Supplier’s named facility. Buyer must inspect all deliveries upon receipt. Notification of Supplier in respect of defects, shortages or non-conformities reasonably discoverable by inspection must be asserted in writing within thirty (30) days after receipt or will be deemed waived, except that any waiver shall not release Buyer from its obligation to inspect and test all Components supplied by Supplier for any NonConforming Component.
Ownership of all drawings, inventions, bills of materials, flow diagrams, plot plans, details, specifications and other data or documentation (regardless of medium) held by Supplier prior to undertaking work on the Buyer Designed Products and all associated intellectual or industrial property rights shall be and remain the property of Supplier, and Buyer will execute such confirmatory assignments as Supplier may from time to time request. Ownership of all design, drawings, specifications, inventions and all associated intellectual or industrial property rights in the Standard Products shall remain with and vest in Supplier. Buyer will use any product manuals or documentation (regardless of medium), including installation, maintenance, operation and authorized repair of the Components. Buyer’s use and disclosure of any such manuals or other documentation shall be subject to any confidentiality or nondisclosure agreement between Supplier or Buyer and the obligations set out in the section headed CONFIDENTIALITY above.
There are incorporated into this Quotation/Sales Order and any Contract the provisions of Executive Order 11246 (as amended) of the President of the United States on Equal Employment Opportunities and the rules and regulations issued pursuant thereto, with which Buyer represents it will comply, as applicable. Supplier represents that with respect to the production of the Components under this Contract, the Supplier will fully comply with section 12(a) of the Fair Labor Standards Act 1938 as amended, and the Equal Employment Opportunity Regulations.
If the Components are purchased by Buyer pursuant to or in connection with a U.S. Government contract or subcontract, Buyer shall promptly notify Supplier in writing of those provisions, if any, of the Federal Acquisition Regulations and/or of the Defense Federal Acquisition Regulations Supplement (collectively, the FARS/DFARS) that are required to be included in the Contract. The pertinent provisions of the FARS/DFARS described in such notification that are so required to be included will be applicable hereto and will be incorporated herein by reference from and after the date such notification is received by Supplier.
All sales, shipments, and sharing of technical data, both domestically and internationally, by Supplier, its divisions, and subsidiaries, are done so in accordance with all applicable United States laws and regulations, including, but not limited to, the Export Administration Regulations (EAR), International Traffic in Arms Regulations (ITAR), Iranian Transaction Regulations (ITR) and the International Emergency Economic Powers Act (IEEPA) and any controls thereunder, and/or amendments thereof. By accepting this agreement Buyer confirms that they are not located in (or a national resident of) any country under United States or United Nations embargo or sanction, not identified on any United States Department of Commerce Denied Persons List, Entity List, United States Department of State Debarred Parties List, and/or the United States Department of the Treasury’s Specially Designated Nationals list, and not directly or indirectly involved in the financing, commission or support of terrorist activities or in the development or production of nuclear, chemical, biological weapons or in missile technology programs as specified in the EAR. Upon Suppliers request, Buyer agrees to provide all information pertaining to the actual routing of Components to be exported and the intended use thereof. Any routing and/or use of Components contrary to the laws and Regulations of the United States or country in which they are being used is prohibited.
Supplier shall have no liability or be in breach for any failure or delay in performance due to strikes, lockouts, concerted acts of workmen or other industrial disturbances, fires, explosions, floods or other natural catastrophes, civil disturbance or riots, armed conflict whether declared or undeclared, terrorist acts, curtailment, shortage, rationing or allocation of normal sources of supply of labor, materials, transportation, engineering, Buyer’s technical or Buyer’s design specifications difficulties; adverse future government action, energy or utilities, accidents, acts of God, delays of subcontractors or vendors, sufferance of or voluntary compliance with acts of government and government regulations, embargoes or any other similar or dissimilar cause which is beyond the reasonable control of Supplier.
The U.N. Convention on the International Sale of Goods shall not apply to the transactions contemplated herein. This Quotation/Sales Order and any Contract shall be governed by and construed according to the laws of the state of New York, USA, without regard to its principles of conflicts of laws. All disputes arising out of this Quotation/Sales Order or any Contract will be brought solely in the state or federal courts having jurisdiction over the county in which Supplier’s facility named in this Quotation/Sales Order is located, and Buyer consents to the personal jurisdiction of and laying of venue in any such court, and waives any objection based on lack of personal jurisdiction or forum non conveniens.
Payment will be due 30 days after the date of Supplier’s invoice. All overdue amounts will bear interest at the lesser of 1.5% per month or the highest rate allowed by law. If any amount due hereunder is collected through a collection agency or attorney, Buyer will pay Supplier’s cost of collection, including reasonable attorneys’ fees. Supplier reserves and Buyer grants a present and continuing first priority purchase money security interest and lien over all Components sold hereunder until the purchase price therefor has been paid in full. Buyer irrevocably appoints Supplier as attorney-in-fact to execute, if necessary, and file any and all documentation required by law or deemed necessary and appropriate by the Supplier to effect, protect and continue Supplier’s security interest.
Under no circumstances will Supplier be liable, whether in contract, tort otherwise (including based on negligence or strict liability), for any special, indirect, incidental, punitive or consequential damages of any kind or for any loss of profits (direct or indirect), direct or indirect loss of business, direct or indirect loss of goodwill, direct or indirect loss of anticipated savings or business opportunity. Without limiting any other provision hereof, Supplier’s maximum liability for direct damages in respect of any Components furnished to Buyer shall not exceed the actual price paid to Supplier in respect thereof which are subject to the claim. Buyer covenants that its use of any Products furnished hereunder will comply with all applicable laws and regulations, and with any applicable product specifications and documentation.
Quoted prices do not include any excise, sales, value added, goods and services, privilege, use or similar taxes or levies, or import or export duties payable in connection with sale or delivery of any Buyer Designed Products, all of which shall remain the sole responsibility of Buyer. If Supplier is required to collect or pay any such taxes, levies or duties, Buyer will pay such amounts to Supplier upon invoice.
No waiver of any term or condition by Supplier shall be valid unless in writing, and no such waiver will constitute a precedent or waiver of the same or any other term or condition on any future occasion.
Supplier warrants that, under proper and normal use, any Components supplied by it (other than prototype) will be free from defects in material and workmanship, other than defects attributable to Buyer’s design specifications, for a period of 30 days from the date of delivery. With respect to any raw material, element or sub-component of a Component not manufactured by Supplier, Supplier’s sole obligation will be to assign to Buyer any rights under any warranties in favor of Supplier from the vendors thereof, to the extent permitted by the terms hereof. Supplier further warrants that, at delivery, the Components (other than prototype) manufactured by it will perform in all material respects in accordance with any performance specifications expressly referenced in this Quotation/Sales Order, except for failures to perform attributable to Buyer’s design specifications. If any such specifications provide for performance or acceptance test(s), compliance with such performance specifications shall be exclusively determined by the result of such test(s), and Supplier’s liability under this warranty will terminate upon successful completion of such test(s) or, sixty (60) days after delivery if such performance or acceptance test(s) are not completed within such period for reasons beyond Supplier’s control. If, during the applicable warranty period, any warranted Component fails to conform to the applicable warranties, Supplier’s sole obligation, and Buyer’s sole remedy, will be, at Supplier’s option, to repair or replace the Non-Conforming Component, FOB Supplier’s facility, or to refund the price paid to Supplier therefor, provided in each case that Buyer shall give Supplier immediate written notice upon discovery of such non-conformity, specifying in reasonable detail the nature thereof. Supplier will have the option of requiring the return of the allegedly Non-Conforming Component, freight prepaid, to verify the claim. The remedies in this paragraph will be Buyer’s sole remedies for failure or underperformance of a Non-Conforming Component and under no circumstances will Supplier be liable for any damages, including any special, indirect, incidental, punitive or consequential damages of any kind, or for any loss of direct or indirect profits caused by failure or underperformance of Components. Repairs or alterations made without Supplier’s written consent shall render all of Supplier’s warranties void and of no effect. Buyer shall be solely responsible for all defects or damages attributable to Buyer or conditions (including damage) of or to any Component after delivery, including as a result of the use of such Component with any other component or raw material not provided or approved in writing by Supplier. EXCEPT AS EXPRESSLY PROVIDED IN THE “WARRANTY” SECTIONS ABOVE, SUPPLIER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO ANY COMPONENT, SUPPORT ASSISTANCE OR DOCUMENTATION, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, AND SUPPLIER HEREBY DISCLAIMS SAME. ANY INPUT FROM SUPPLIER REGARDING ANY ASPECT OF THE COMPONENTS OR SUITABILITY FOR ANY APPLICATION IS PROVIDED SOLELY AS A CONVENIENCE TO BUYER, ON AN AS-IS BASIS AND WITHOUT ANY WARRANTY (EXPRESS OR IMPLIED) AND DOES NOT CONSTITUTE A RECOMMENDATION OR SUGGESTION AS TO ANY ASPECT OF THE BUYER DESIGNED PRODUCTS OR USE FOR ANY PARTICULAR APPLICATION.
Except as otherwise expressly provided in a written document signed by both parties, this document constitutes the entire agreement between the parties and all prior agreements and communications between the parties are hereby merged into this agreement. All notices required under this agreement shall be in writing and sent by commercially reasonably means. In case any provision of this agreement should be or become unenforceable under applicable law, that provision will be severed and the remaining provisions will remain in effect.
Buyer’s offer to purchase the goods and/or services described in this purchase order is expressly conditioned upon Seller’s acceptance of the terms and conditions set forth herein which shall constitute the sale terms and conditions for such purchase. Buyer rejects all contrary or additional terms and conditions of Seller contained in any acceptance or sales acknowledgement unless expressly agreed to in writing by Buyer. Seller shall be deemed to have accepted the terms and conditions contained herein upon the earlier of (i) Seller’s failure to notify Buyer of Seller’s rejection of these terms and conditions within ten (10) days of Seller’s receipt thereof or (ii) Buyer’s receipt of any goods and/or services delivered hereunder. These terms and conditions are incorporated and made a part of the purchase order to which they are attached. Except as otherwise agreed in a written contract in effect between Buyer and Seller for the purchase and sale of the goods and/or services described herein the following terms and conditions apply:
PURCHASE OF GOODS
1. Prices. Prices for the goods are set forth in this purchase order. If no price is stipulated herein, the goods shall be charged at prices not exceeding those last previously quoted or charged to Buyer for goods of like kind or quality; provided, however, if Seller shall offer a lower price for the goods to any of its customers ordering the same or lesser quantity thereof prior to receipt by Seller of payment for the goods hereunder, the price of the goods shall be reduced to such lower price and if Seller receives payment hereunder it will promptly refund to Buyer the difference between the price contained in this purchase order and such lower price.
2. Taxes. Seller shall be responsible for the payment of the amount of all taxes, excises and other governmental charges (including taxes on or measured by net income) required to be paid with respect to the production, sale or transportation of any goods manufactured for or delivered to Buyer hereunder, except as may otherwise be provided by law.
3. Payment. Payment terms, unless otherwise specified in this purchase order, are net (30 or 45) days after the date of Seller’s invoice. Seller may only invoice Buyer for goods on or after the date that such goods are delivered to Buyer in accordance with the terms hereof. Payment for goods delivered under the purchase order shall not constitute an acceptance thereof.
4. Delivery. Time is of the essence. Delivery of all goods purchased by Buyer shall comply with shipping instructions supplied by Buyer and the goods shall be packed for shipment in manner suitable for the method of shipment specified in such instructions.
5. Representations by Seller. Seller represents and warrants to Buyer that (i) it holds all right, title and interest in and to the goods and has the right and authority to sell the goods to Buyer and (ii) all right, title and interest in and to the goods shall pass to Buyer upon delivery to, and acceptance thereof by, Buyer in accordance with the terms hereof.
6. Warranties. Seller warrants that all goods delivered hereunder (i) shall be of Seller’s standard quality for the type and grade of material involved and free from defects, latent or patent; (ii) shall conform to all specifications, drawings or descriptions furnished or specified by Buyer; (iii) shall be merchantable and suitable and sufficient for their intended purposes; (iv) shall be adequately contained, packaged and labeled and shall conform to any promises and affirmations of fact made on the container and label; and (v) shall be free of any claim of any third party. In the event of any inconsistency among the foregoing, the description given in this purchase order shall control Seller’s warranty. Buyer’s inspection and/or acceptance of and/or payment for goods and/or services shall not constitute a waiver by it of any warranties.
7. Breach of Warranty. If Buyer shall determine that any goods do not conform to the warranty set forth herein it shall notify Seller thereof and Buyer may, in its sole discretion, return to Seller either the specific non-conforming goods or the entire shipment of which the non-conforming goods were a part whereupon Seller shall, at Buyer’s option (i) replace such non-conforming goods or shipment of goods with goods or shipment of goods which conform to the warranty therefore, or (ii) refund to Buyer the purchase price and shipping charges therefor. All shipments and deliveries of non-conforming goods by Buyer shall be at the expense of Seller and, if paid by Buyer, Seller agrees to reimburse Buyer upon demand therefor.
8. Quality. Buyer and its customers reserve the right to review and verify at Seller’s facility the quality of work, manufacturing processes, records and materials applicable to this purchase order.
PURCHASE OF SERVICES
1. General Conditions. Seller shall furnish all services, labor, materials, equipment, tools and everything necessary to undertake and complete all the work contemplated by the drawings, plans, specifications, addenda and other communications provided and as described on the purchase order (the “Work”).
2. Seller’s Examination. Seller shall be held to have examined any specifications and/or drawings provided by Buyer and to have made all investigations essential to the understanding of the difficulties which may be encountered when performing the Work and to be satisfied as to the conditions under which Se1ler shall be obliged to operate, the character and nature of the Work, safety regulations and all other considerations which may affect the Work in any manner.
3. Prices. Prices for the Work are set forth in this purchase order.
4. Warranties. Seller warrants that all materials and equipment incorporated into the Work (except materials and provided by Buyer) and every portion of the Work shall conform to the terms of this purchase order, shall be of the best quality, shall be fit for the particular purpose for which they are required, and shall be free of all defects in the materials and workmanship until the expiration of one (1) year after completion of the Work, as evidenced by final payment of Buyer to Seller. Upon receiving written notice from Buyer, Seller shall promptly make such repairs and replacements as are necessary to correct any failure to meet any warranty hereunder, at Seller’s sole expense. In the event Seller does not correct such failure within a reasonable time, Buyer shall have the right to have such corrections made and Seller shall pay Buyer the costs thereof, promptly after receipt of an invoice. Neither acceptance of or payments for the Work or any parts thereof, nor the partial or entire use of the Work by Buyer shall release Seller from liability for any warranties for equipment installed or for workmanship which is faulty, unsound, improper or not in accordance with this purchase order.
5. Labor. Seller shall operate as an independent contractor and no employee of Seller or its subcontractors shall be deemed an employee of Buyer. Seller acknowledges that it is solely responsible for the conduct of its employees while providing services pursuant to this purchase order. Further, Seller shall employ, or cause to be employed, on or in connection with the performance of the Work, only persons who are fit and skilled in the work assigned and have received all safety training appropriate for any hazards involved in the Work. Should any disorderly, incompetent or objectionable person be employed on the Work by Seller or by any of its subcontractors, Seller shall, upon request of Buyer, cause such person to be removed immediately from Seller’s premises.
6. Site Rules. Seller shall obtain all required and necessary permits and licenses and shall comply with all laws, ordinances and governmental rules and regulations applicable to the Work, to labor employed on the Work and to the preservation of the public health and safety. All regulations and rules of Buyer in effect at the site regarding safety, employee’s passes, badges and conduct on the property shall be rigidly observed by Seller, its personnel, employees and subcontractors. Seller acknowledges receipt of Buyer’s (Site Rules or “Report of Hazard Communication Contact with Contractor”) and shall execute receipt thereof at Buyer’s request.
7. Insurance. At all times that Seller is providing services to Buyer, Seller shall maintain insurance policies, including bodily injury liability, property damage liability, commercial general liability and statutory workers compensation insurance in amounts specified by Buyer. Seller shall furnish written certificates establishing that the required insurance has been procured and is being maintained, and such certificates shall provide that written notice of cancellation shall be given to Buyer at least ten (10) days prior to the effective date of such cancellation. Seller further agrees to use only subcontractors that provide insurance certificates of comparable coverage. No representative or subcontractor of Seller shall be allowed entry to Buyer’s site to perform services until Buyer has received a copy of the certificate(s) of insurance.
1. Force Majeure. Neither party shall be liable for its delay or failure in performing hereunder due to conditions or events beyond its reasonable control, including without limitation, natural disasters, accidents, labor disputes or shortages, governmental laws, ordinances, rules and regulations and inability to obtain material, equipment or transportation. If Seller is unable to supply any of the goods or services because of any such condition or event, Seller shall immediately notify Buyer of such fact and shall provide Buyer with a good faith ‘estimate of when Seller expects to be able to supply such goods or services. Buyer shall thereupon have the option, upon notice to Seller, of obtaining substitutes for some or all of such goods or services from other suppliers, whereupon the total quantity of goods deliverable or services to be rendered hereunder shall be reduced by the quantity so substituted, and the amount payable by Buyer shall be reduced pro-rata.
2. Compliance with Laws. In the performance of this purchase order, Seller shall comply with an applicable laws, statutes, rules, regulations and orders of the United States including any state or political subdivision thereof and of any other applicable country pertaining to the sale (and movement) of the goods or services to be delivered hereunder.
3. Intellectual Property Warranty. Seller warrants that: (i) neither the services provided nor the goods furnished hereunder nor the sale or use thereof will infringe any United States or Foreign Letters Patent, trademark, copyright; or other proprietary or similar rights; (ii) Seller shall, at its own expense, defend any claim or suit that may arise with respect to any aforementioned infringement or allegation thereof; and (iii) Seller shall indemnify and hold Buyer and/or its customers harmless from all loss and expense incurred on account of any alleged or actual infringement. Buyer shall promptly notify Seller of any infringement claim made against it. The warranty provided herein shall not apply to goods to the extent such goods are manufactured exclusively in accordance with Buyer’s specifications.
4. Assignment. Seller may neither assign any right or interest in the agreement resulting from Seller’s acceptance of Buyer’s purchase order nor delegate performance of any of its obligations without Buyer’s written consent.
5. Governing Law. The validity, interpretation and performance of the agreement resulting from Seller’s acceptance of Buyer’s purchase order shall be governed by the laws of the state of PA without regard to its rules concerning conflicts of laws.
6. Entire Agreement: Modification: Waiver. The agreement resulting from Seller’s acceptance of Buyer’s purchase order constitutes the entire agreement between Buyer and Seller for the purchase and sale of the goods or services described herein. No course of dealing between Buyer and Seller and no usage of trade shall vary any terms and conditions herein. Buyer reserves the right at any time prior to shipment or performance to make changes, by written notice, relating to this purchase order. No modification or waiver of the terms or conditions hereof by the Seller shall be binding upon Buyer unless approved in writing by Buyer.
7. Arbitration. All disputes which may arise out of, in relation to or in connection with this purchase order shall, unless settled by mutual consultation in good faith, be finally settled under the rules and procedures of the American Arbitration Association then in effect, such arbitration to be conducted in PA. The arbitrators shall only interpret and apply the terms or conditions of this purchase order and shall not change any terms or conditions hereof or deprive either party of any right or remedy provided for in this purchase order. Any arbitration award rendered pursuant hereto shall be final and binding upon the parties hereto. Judgment upon any arbitration award rendered may be entered in any court of competent jurisdiction or application may be made to such court for judicial recognition of the award or an order of enforcement as the case may be.
8. Remedies. All of Buyer’s rights hereunder are separate and cumulative and in addition to any other rights Buyer may have at law or in equity and no exercise by Buyer of any right hereunder shall preclude Buyer from exercising any other legal or equitable right or remedy available to it.
9. Indemnification. Seller shall indemnify, hold harmless and save Buyer, its affiliates, shareholders, directors, officers, employees, successors and assigns (individually, a “Buyer Indemnitee”). from and against, for and in respect of, any and all demands, judgments, injuries, penalties, damages, losses, obligations, liabilities, claims, actions or causes of action, encumbrances, costs, expenses (including without limitation, reasonable attorneys’ fees) suffered, sustained, incurred or required to be paid by any Buyer Indemnitee arising out of or based upon or in connection with or as a result of Seller’s performance under this purchase order, including but not limited to (i) any breach of any representation or warranty made by Seller herein or of any obligation of Seller hereunder, (ii) the use by Buyer, its affiliates or customers of the goods or services, (iii) product liability clams in connection with any of the goods or services used by Buyer, its affiliates or customers, (iv) any violation of any federal, state or local rule, regulation or governmental order, (v) injury, sickness and/or diseases, including death, resulting at any time from bodily injury, sickness and/or disease, where such injury, sickness or disease is in any way connected to the goods delivered or the services performed pursuant to this purchase order. In the event that this purchase order provides for services to be performed on property owned or controlled by any party or parties other than Buyer, the aforesaid obligation to defend, indemnify and hold harmless shall be expanded to include such party or parties, their employees and agents. This indemnification clause applies regardless of the negligence of Buyer or Buyer’s employees.
10. Termination. Buyer may, by notice in writing, terminate this purchase order at any time, whether or not Seller is in default, and such termination shall not constitute default. In no event shall Seller be entitled to anticipatory profits or to special or consequential damages. In the event of such termination, Seller shall promptly deliver to Buyer copies of all subcontracts and purchase orders entered into by Seller in connection with the Work and shall settle and discharge all such purchase orders and subcontracts which Buyer requests Seller to settle. Promptly after such termination, Seller shall transfer and assign to Buyer all purchase orders and subcontracts which are not settled and discharged, all materials for which payment is made by Buyer hereunder, all drawings and documents furnished by Buyer to Seller in connection with the Work. Seller shall take such action as may be necessary to secure in Buyer the rights of Seller under all such purchase orders and subcontracts assigned hereunder.
11. Rights to Information. Seller shall not, without Buyer’s prior written consent, disclose any information relative to this purchase order, except as may be necessary to insure performance. Seller, however, agrees that any knowledge or information which Seller shall have disclosed or may hereafter disclose to Buyer in connection with this purchase order, shall not, unless otherwise specifically agreed to in writing by Buyer, be deemed to be confidential or proprietary information, and shall be acquired free from any restrictions (other than a claim for patent infringement) as part of the consideration for this purchase order. All designs, drawings and specifications furnished to Seller by Buyer in connection with this purchase order shall remain the property of Buyer at all times and shall be returned to Buyer at once upon the completion or termination of this purchase order. Seller agrees it will not use such designs, drawings and specifications in connection with goods produced or work performed for anyone other than Buyer.
12. Legal Compliance; Equal Employment Opportunity. The applicable provisions set forth in (1) Section 202 of Executive Order 11246, codified at 41 C.F.R. § 60-1.4 pertaining to equal opportunity and nondiscriminatory employment practices; (2) Section 60-250.4 of the Affirmative Action Regulations for Veterans codified as 41 C.F.R. § 60-250, and adopted pursuant to the Veterans Readjustment Act of 1974, and specifically the equal opportunity clause in 41 C.F.R. § 60-250.5(a); (3) Section 60 741.4 of the Affirmative Action Regulations on Handicapped Workers codified as 41 C.F.R. § 60-741, relating to Section 503 of the 1973 Rehabilitation Act, and specifically the equal opportunity clause in 41 C.F.R. § 60-741.5(a); (4) other equal employment provisions required by the Office of Federal Contract Compliance Programs as set forth in 41 C.F.R. § 60; and (5) the applicable provisions set forth in Executive Order 13201, codified at 29 C.F.R. § 470, pertaining to rights of employees related to union membership and use of union dues and fees; are incorporated herein by reference, except to the extent that this purchase order may be exempt from the provisions of any such regulations and executive orders. In furnishing materials or services covered by this purchase order, Seller certifies that it is in compliance with the provisions of all applicable federal, state and local laws, rules, regulations, and ordinances, including but not limited to any of the laws, rules, regulations set forth in this Section 12, and Seller shall provide certification reasonably requested by Buyer from time to time as necessary to comply with its obligations as a federal contractor.
INTERNATIONAL TRADE COMPLIANCE
If the above box is marked, then all of the provisions contained in the attached Exhibit A regarding International Trade Compliance are incorporated herein by reference and made an integral part hereof and of the purchase order to which these terms and conditions are attached.
