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Except to the extent that you have a separate applicable signed, Master Service Agreement, Purchase Agreement, Statement of Work or other written contract governing this purchase, the following Terms and Conditions apply to this Purchase Order:

1. Acceptance; Applicable Terms and Conditions of Purchase

(a) The term “goods” refers to all materials, supplies, equipment, parts, accessories, ingredients and other items to be sold or leased to Buyer hereunder, and unless the context otherwise requires, shall also include installation and other services related to the goods which Seller may agree to provide. The term “services” refers to all services of any nature whatsoever ordered or required by Buyer hereunder.

(b) Upon receipt by Buyer of Seller’s signed copy of this Purchase Order (“Order”), or upon Seller’s commencement of work on the goods subject to this Order , or upon shipment of such goods, or Seller’s commencement of installation of services, whichever occurs first, this Order shall become a contract including the terms and conditions herein.

(c) Buyer shall not be bound by any provisions in Seller’s order acknowledgement or acceptance forms or other documents (including counter offers) which propose any terms or conditions in addition to or differing with the terms and conditions set forth herein, and any such terms and conditions of Seller and any other modification to this Order shall have no force or effect and shall not constitute any part of the terms and conditions of purchase or lease, except to the extent separately and specifically agreed to in writing by the Buyer. Buyer’s failure to object to provisions contained in Seller’s documents shall not be deemed a waiver of the terms and conditions set forth herein, which shall constitute the entire agreement between the parties.

(d) No amendment, deletion, supplement or change in terms and conditions contained herein shall be binding on Buyer unless approved in writing by the Buyer.

2. Price; Payment Terms

(a) Prices shall be firm and not subject to adjustment or variation unless specifically approved in writing by the Buyer.

(b) Except as otherwise provided herein, the prices herein include all costs and charges incurred by Seller, including, without limitation, all materials, all costs of design, engineering, and development, installation and other service charges, all applicable federal, state and local taxes and duties, all wages and fees for services and materials, all charges for transportation, packing, packaging and returnable containers.

(c) Invoices will be paid within forty-five (45) days after receipt and acceptance of the goods or completion and acceptance of services. If invoices are subject to discount for prepayment, Seller shall state such terms clearly on such invoices. Buyer’s opportunity for prepayment shall not be prejudiced by delays beyond Buyer’s control.

3. Specifications

(a) Unless otherwise authorized in writing by Buyer, Seller shall deliver goods or render services, or both, per all specification designs, drawings, and performance criteria, if any, furnished by Buyer or furnished to Buyer by Seller, without variation.

(b) Buyer may, by written order, change any one or more of the following terms of this Order: (i) the specifications, designs, drawings, or performance criteria; (ii) method of shipping or packing; (iii) place of inspection, acceptance or point of delivery; (iv) delivery schedule; and (v) quantity. In this event and if appropriate, Buyer may in writing request an equitable adjustment in the prices or delivery terms of this Order, and Seller may in writing make claim for the cost of any redundant material or work in process, but not for any cost of design, engineering or development, special tooling or general purpose equipment unless such items have been specifically ordered and separately priced in this Order; provided, however, that Seller shall, in all events, proceed diligently to supply the goods or services contracted for under this Order as so changed. Any and all claims and requests by Seller under this subsection (b) shall be deemed waived unless made in writing and received by Buyer within thirty (30) days from the receipt by Seller of the written order change.

4. Termination

(a)  This Order may be terminated by Buyer: (i) promptly upon written notice to Seller for the convenience of Buyer, or (ii) at any time if Seller is in default under this Order, fails to use properly skilled personnel, fails to make prompt payment to any subcontractors it may have, fails to make prompt payment for any materials, labor or any other expenses it incurs in the production or construction of the goods or the performance of any services, or (iii) at any time upon the insolvency of Seller or in the event of the institution of any proceeding by or against Seller in bankruptcy or insolvency or under any provisions of the Bankruptcy Act or for the appointment of a receiver or trustee or any assignment for the benefit of creditors of Seller, or (iv) upon any sale, transfer or other disposition in the aggregate of more than fifty percent (50%) of the stock or other evidence of ownership of Seller. Any termination pursuant to parts (ii), (iii) or (iv) of this subsection (a) shall be deemed to be a termination for default.

(c)   In the event of termination by Buyer pursuant to (ii), (iii) or (iv) of subsection (a) above, Seller shall be entitled to no claim for damages or for the cost of any work or service, or both, in process. At Buyer’s option, Buyer may produce or purchase or otherwise acquire goods or services elsewhere on such terms or in such manner as Buyer may deem appropriate and Seller shall be liable to Buyer for any excess cost or other expenses incurred by Buyer; and/or Seller shall deliver to Buyer any of the goods or services for which Buyer makes written request at or after termination, and Buyer will pay Seller the lesser of the price herein contained or fair value of any of such goods or services so requested.

5. Warranties

(a) Seller warrants that it will diligently perform its services to the highest degree of workmanship and that all goods and services shall be free for a period of 3 years after acceptance by Buyer from defects in workmanship and material and shall be in conformity with specifications, drawings, samples, advertising materials, descriptions or performance criteria referred to herein, if any, and if of Seller’s design, shall be free from design defects. Seller further warrants that all goods shall be merchantable and that all goods and services shall be fit for Buyer’s particular purposes. Seller warrants that the goods, services and production, packaging and delivery thereof, shall be in compliance with all applicable federal, state and local laws, rules, regulations, requirements, ordinances and orders, (collectively, “Applicable Laws”). For goods and services delivered in the state of California, this Order and the goods and services delivered hereunder must be in compliance with the Safety Orders of the State of California Division of Industrial Safety and Proposition 65. On request Seller shall furnish Buyer certificates of compliance with all Applicable Laws which apply to this Order. Seller shall, at time of delivery or invoicing, certify that goods sold hereunder were manufactured or produced in full compliance with Section 12 of the Fair Labor Standards Act, as amended, to the date of certification and all applicable United States Department of Labor Regulations promulgated there under.

(b) Seller further warrants that it has full power to enter into, and to perform fully pursuant to the provisions of, this Order and that no goods or services or the provision, use or sale thereof shall in any way infringe upon or violate any rights of any party whether they be patent, trademark, trade secret, copyright, contractual or otherwise. Seller warrants that it is not owned by or affiliated with an employee of the federal government who does business with Buyer in his/her capacity as a federal employee.

(c) All express warranties shall survive inspection, testing, and acceptance of the goods by Buyer and expiration or termination of this Order.

(d) All warranties shall inure to Buyer, its customers and subsequent owners or consumers of the goods or services covered hereunder or the end products of which they are a part.

(e) Seller agrees, at its expense and at Buyer’s option to defend or assist in the defense of any action against Buyer which, in whole or in part, whether by way of claim, counterclaim or defense, is based upon an alleged breach of any of Seller’s warranties.

6. Buyer’s Remedies and Damages

(a) Without limiting any other applicable remedy of Buyer, within the applicable warranty period, the Seller shall repair or replace, at Seller’s option, any nonconforming goods or services.

(b) Seller hereby agrees to fully indemnify, release and hold harmless Buyer and Buyer's subsidiaries, affiliates, shareholders, directors, officers, employees and agents from and against any and all liability, losses, costs, expenses (including court costs and attorneys’ fees, interest and profits), claims, demands, suits by any person(s), proceedings, investigations, injuries, damages, damages to property, bodily injuries, sickness, death and any other losses of any kind whatsoever arising out of, resulting from, caused by, incident to, or in any way connected with: (i) any breach or alleged breach of this Order, or any negligent act or omission, or willful act or omission, by a Seller or its directors, officers, managers, employees, agents, subcontractors, or suppliers (collectively, the “Seller Parties”) ; (ii) any violation of a federal, state, or local law or regulation by a Seller Party; and/or (iii) any infringement or alleged infringement of any third party’s intellectual property rights arising from a Seller Party’s use of intellectual property.

(c) In the event any claim should be made against Buyer at any time during the term hereof, that by virtue of its use or resale of the goods or services or otherwise, Buyer is infringing or contributing to the infringement of any actual or alleged industrial property rights, Buyer may at its option, thereupon or at any time during the continuance of such claim refuse to accept deliveries hereunder and terminate this Order and shall, in such case, be entitled to the indemnity set forth in subsection (a) above, or Buyer may require Seller, at Seller’s expense, to (i) either procure within 30 days for Seller the right to continue using said goods, or (ii) modify same so the goods and services become non-infringing, or (iii) replace the goods with non-infringing goods.

(d) Seller shall not assert against Buyer or its customers any industrial property rights relating to the use or sale of goods or services.

(e) This indemnification provision shall survive termination of this Order.

7. Packaging and Shipping; Risk of Loss

(a) All packing and packaging shall be in accordance with specific instructions from Buyer on the face hereof or in separate notification. In the absence of specific instructions, all packing and packaging shall comply with good commercial practice, applicable carrier’s tariffs and all applicable state, federal and local law and shall consist of suitable containers for optimum protection of the goods and for in-plant handling and storage.

(b) Delivery shall be made by the carrier and route specified by Buyer. In the absence of instructions, shipments shall be routed via the most economical mode of commercially reasonable transportation available consistent with the time requirements established for this Order.

(c) The number of the Order must be shown on all packing slips and invoices, and except in the case of ingredients, on all packages, crates or other containers, together with the destination party and address specified by Buyer.

(d) Delivery shall not be deemed complete until the goods have actually been received and accepted by Buyer, or by the person to whom the goods were delivered, and the risk of loss on the goods shall be borne by Seller until such delivery and acceptance, Seller shall also bear the risk of loss on the goods rejected by Buyer, from the time of shipment thereof to Seller until the redelivery thereof to Buyer.

8. Delivery or Performance Schedule; Quantities

(a) Time is of the essence.

(b) Anticipated shipping dates will be provided at the time of the Order. Seller shall promptly advise Buyer of any delay or anticipated delay in delivery or performance and shall pay Buyer for any actual and direct losses sustained or costs incurred by Buyer as a result of a late delivery.

(c) Seller shall not, without Buyer’s prior written consent, manufacture or procure materials in advance of Seller’s normal flow time or deliver goods or perform services in advance of schedule. In the event of termination or change in the terms of this Order, no claim by Seller will be allowed for any such manufacture or procurement of performance of services in advance of such normal flow time without the prior written consent of Buyer.

(d) Goods which are to be shipped shall be shipped FOB destination unless otherwise specified by Buyer in an Order. Any shipments which are sent C.O.D. without Buyer’s consent will not be accepted and will be made at Seller’s risk.

9. Inspection and Testing

All goods and services are subject to inspection by Buyer at any time, including during their manufacture, construction, or preparation, notwithstanding any prior payment or inspection. Goods or services may at any time be rejected for defects or defaults revealed by inspection, analysis or by manufacturing operations or use after delivery even though such goods or services may have previously been inspected and accepted.

10. Force Majeure

(a) Whenever any causes of the type specified in subsection (b) below delay or prevent full and timely performance of this Order or threaten to, Seller shall promptly give notice to Buyer.

(b) Neither party shall be liable to the other for any delay or failure to perform fully where such delay or failure is caused by acts of public enemy, acts of a sovereign nation or any state or political subdivision or fires, floods or explosions, where such cause is beyond the reasonable control of the affected party and renders performance commercially impracticable as defined under the Uniform Commercial Code. In the event of such a failure or delay in performance by Seller, Buyer may at its option (i) reject any partial or future performance by Seller upon giving reasonable notice in writing to Seller, and this Order shall thereupon be terminated and neither party shall be liable to the other hereunder, or (ii) where limited production by Seller is possible, Buyer may require Seller to apportion its materials and resources so as to produce for Buyer that quantity of goods ordered by Buyer which bears the same relationship to Seller’s total production for all customers as the scheduled production of goods for Buyer bears to the Seller’s total scheduled production.

11. Disclosure of Information; Confidentiality of Order

(a) Seller shall not use or disclose any data, designs, or other information belonging to, supplied by or on behalf of Buyer. Upon completion by Seller of its obligations under this Order or upon Buyer’s request, such data, designs and other information or any copies thereof shall be returned to Buyer. Where in accordance with Buyer’s written authorization, Buyer’s data, designs or other information is furnished to Seller’s suppliers for procurement of supplies by Seller for use in the performance of this Order; Seller shall insert the substance of this provision in its own purchase order.

(b) This Order is confidential, and Seller shall not, without prior written consent of Buyer, disclose any information relative to or derived under this Order, except as may be required to ensure performance. Unless otherwise authorized in writing by Buyer, Seller shall not advertise or publish the fact that Seller has contracted to furnish Buyer the goods or services.

12. Assignment and Delegation

Neither this Order, or any part thereof, may be assigned, subcontracted, or otherwise transferred by Seller, voluntarily or by operation of law, even with a majority of the stock or assets of Seller, without the prior written consent of Buyer, and any such assignment or transfer without such consent shall be null and void and of no force or effect whatsoever. The terms and conditions of this Order shall bind any permitted successors and assigns of Seller. Any consent by Buyer to assignment shall not be deemed to waive Buyer’s right to recoupment and/or set off claims arising out of this or any other transactions with Seller, its divisions, affiliates, or subsidiaries, or to settle or adjust matters with Seller without notice to permitted successors and assigns. Seller has no authority to bind Buyer to any obligation to third parties. Seller shall indemnify and hold Buyer harmless against any claims arising out of acts of subcontractors or its employees’ performing services on Buyer’s premises.

13. Insurance

(a) Seller shall maintain at all times during this Order, the following minimum insurance coverages (or self-insurance in equivalent amounts):

  • Commercial General Liability $1,000,000 per Occurrence Bodily Injury & Property Damage, Personal & Advertising Injury, Products/Completed Operations
  • Commercial Auto Liability $1,000,000 Combined Single Limit- Any Auto
  • Workers Compensation Statutory

(b) Seller shall furnish Buyer with a certificate evidencing the aforementioned insurance coverage. Compliance by Seller with the insurance provisions of this Order shall not relieve Seller of any liabilities with respect to the agreements contained herein and the goods and/or services provided hereunder.

14. Taxes and Other Exactions

(a) Buyer shall be responsible for the payment of any taxes Seller is required by law to collect from Buyer, including, but not limited to, state and local sales, use, and excise taxes. Buyer shall not be liable for taxes that Seller is legally obligated to pay, including, but not limited to income taxes, gross receipts taxes, or withholding taxes which shall be the sole liability of Seller. Applicable taxes will be invoiced by Seller to Buyer unless Buyer provides Seller a valid tax exemption certificate or a statement attesting that Buyer has previously remitted such taxes to the taxing jurisdiction. Seller shall not invoice any applicable taxes to Buyer at a date extending 180 days beyond Buyer’s receipt of goods or services purchased from Seller. If applicable law obligates Buyer to withhold or deduct taxes from amounts payable to Seller, Buyer shall provide to Seller the Buyer’s tax registration number assigned by the relevant taxing authority and official receipts or other documentary evidence of any such withholding, deduction, or payment of tax.

b) Seller will use its reasonable, good faith efforts as available under the laws of the applicable jurisdiction(s) to minimize any taxes associated with the transactions contemplated in this Order and shall be responsible for all costs associated with such request.

15. Examination of Seller’s Place of Business

Upon reasonable prior request by Buyer, any duly authorized representative of Buyer may examine Seller’s place of business and financial records as necessary to determine whether the terms of this Order are being carried out.

16. Waiver

Buyer shall not, by any act, delay, omission or otherwise, be deemed to have waived any of the rights or remedies under this Order, and no waiver whatever shall be valid as against Buyer unless in writing, signed by an authorized representative of Buyer, and then only to the extent set forth therein. Buyer’s waiver of any right or remedy under the terms of this Order on any one occasion shall not be construed as a waiver of any right or remedy which Buyer would otherwise have on a future occasion.

17. Set Off

Seller agrees that Buyer shall have the right to set off against amounts which may become payable by Buyer to Seller under this contract or otherwise, any present or future indebtedness of Seller to Buyer, money, prepaid inventory or otherwise, whether arising under this Order or otherwise.

18. Miscellaneous

(a) Except as otherwise expressly provided herein, any notice or communication required or permitted hereunder shall be sufficiently given if sent in writing by registered or certified mail, postage prepaid, or by overnight courier, to Seller and Buyer at their respective addresses. Any such notice, if so mailed, shall be deemed to have been received the third business day following such mailing, and if sent by overnight courier the following business day. Either party hereto may change its address for notice purposes by written notice to the other party as specified herein.

(b) All rights and obligations under this Order, including matters of construction, validity and performance, shall be governed by the laws of the state of Illinois are located.

(c) The various provisions of this Order are severable and any determination of invalidity or unenforceability of any one provision hereof shall have no bearing on the continuing force and effect of the remaining valid provisions hereof.

(d) Captions given to various sections herein are for convenience only and are not intended to modify or affect the meaning of any of the substantive provisions hereof.

(e) Seller shall be deemed in respect of all activities of Seller contemplated hereunder to be an independent Seller and neither Seller nor any of its agents or employees shall have the right or authority to bind Buyer in any way.

(f) This order contains the entire agreement between Buyer and Seller regarding the subject matter hereof and there has been no other representations or inducements, oral or otherwise, made by any party in connection herewith.

19. Vendor Classification

Seller will inform Buyer if it qualifies as any of the following vendor classifications, and upon request by Buyer will provide Buyer with a copy of its certification or other evidence of such qualification.

Small Business Concern is defined as independently-owned and operated, not dominant in the field of operation in which is bidding and having no more than five hundred employees as defined by the Small Business Administration.

A Minority-Owned business is generally defined to include businesses at least 51% owned and operated by a member or members of a racial minority group such as Asian Pacific American, Black American, Hispanic American, American Indians. The determination of minority status depends solely on ownership and management and is not related to employment of minority persons.

Women-Owned business is generally defined to include businesses at least 51% owned, controlled and operated by a woman or women. All Others-Vendors are those businesses which do not fall within any of the other specified categories.

20. Supplier Guiding Principles

Seller is required to meet the following standards, at a minimum, with respect to its operations as a whole. These minimum requirements are a part of all agreements between Buyer and its direct and authorized supplier. Buyer expects Seller to develop and implement appropriate internal business processes to ensure compliance with these Seller Guiding Principles (SGP). Buyer routinely utilizes independent third parties to assess Seller’s compliance with the SGP; the assessments generally include confidential interviews with employees and on-site contract workers. If Seller fails to uphold any aspect of the SGP requirements, Seller is expected to implement corrective actions. Upon acceptance of, or complete or partial performance under, this Order, Seller warrants that it has read, understands and is in, and will remain in, compliance with all the requirements of these SGP. Buyer reserves the right to terminate this agreement with Seller if Seller cannot demonstrate that it is upholding the SGP requirements without any liability of Buyer to Seller. The minimum requirements are as follows:

  • Laws and Regulations – Seller will comply with all applicable local and national laws, rules, regulations and requirements in the manufacturing and distribution of our products and supplies and in the provision of services.
  • Child Labor - Seller will comply with all applicable local and national child labor laws.
  • Forced Labor - Seller will not use forced, bonded, prison, military or compulsory labor.
  • Abuse of Labor - Seller will comply with all applicable local and national laws on abuse of employees and will not physically abuse employees.
  • Freedom of Association and Collective Bargaining - Seller will comply with all applicable local and national laws on freedom of association and collective bargaining.
  • Discrimination - Seller will comply with all applicable local and national discrimination laws.
  • Wages and Benefits - Seller will comply with all applicable local and national wages and benefits laws.
  • Work Hours and Overtime - Seller will comply with all applicable local and national work hours and overtime laws.
  • Health and Safety - Seller will comply with all applicable local and national health and safety laws.
  • Environment - Seller will comply with all applicable local and national environmental laws.
  • Demonstration of Compliance - Seller must be able to demonstrate compliance with the Seller Guiding Principles at the request and satisfaction of Buyer.

21. Equal Employment Opportunity/Affirmative Action

For purposes of the following subsection, contractor means Buyer and subcontractor means Seller.

This contractor and subcontractor shall abide by the requirements of 41 CFR §§ 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals on the basis of protected veteran status or disability and require affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans and individuals with disabilities. In addition, this contractor and subcontractor shall abide by the requirements of 41 CFR § 60-1.4(a) and federal labor law obligations under 29 CFR part 471, appendix A to subpart A.