Advance Components Terms & Conditions
Terms & Conditions for Purchase Orders: Customers to Advance
1. OFFER, GOVERNING PROVISIONS AND CANCELLATIONS: This writing constitutes an offer or counter-offer by Advance Components, Inc. (“Seller”) to sell the products and/or services described herein in accordance with these terms and conditions. This writing is not an acceptance of any offer made by Buyer, and acceptance of this offer is expressly conditioned upon Buyer’s assent to these terms and conditions. Buyer will be deemed to have assented to these terms and conditions when:
(a) Buyer signs and delivers to Seller an acknowledgement copy of any of Seller’s sales order, quotation, order Acknowledgment or invoice forms;
(b) at Seller’s option, Buyer shall have given to Seller (orally or in writing) specifications of quantity and/or type of goods, assortments thereof, delivery dates, shipping instructions, instructions to bill, or the like as to all or any part of the merchandise herein described;
(c) Buyer has received delivery of the whole or any part thereof; or
(d) Buyer has otherwise assented to the terms and conditions hereof. No additional or different terms or conditions will be binding upon Seller unless specifically agreed to in writing by an officer of Seller at Carrollton, Texas; no other representative has any authority to waive, Alter, vary or add to the terms hereof. Seller hereby objects to any such additional of different provisions contained in any purchase order or other communication heretofore or hereafter received from Buyer. THIS CONTRACT AND THESE TERMS AND CONDITIONS SHALL CONSTITUTE THE ENTIRE AGREEMENT BETWEEN SELLER AND BUYER, AND SHALL BE GOVERNED BY AND SHALL BE CONSTRUED ACCORDING TO THE INTERNAL LAWS OF THE STATE OF TEXAS. THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL NOT BE GOVERNED BY THE PROVISIONS OF THE 1980 U.N. CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. No order may be cancelled or altered by the Buyer except upon terms and conditions acceptable to Seller, as evidenced by Seller’s written consent and Seller shall be entitled to a re-stocking fee of 20% for returned orders, should Seller agree to accept such orders.
2. PRICES: As explained on the face of this form, the prices for the products and/or services there set forth are Seller’s prices for such products and/or services with all of the terms in this form, including the exclusive Warranty and the various disclaimers and limitations of liability enforceable against the Buyer. If Buyer desires for Seller to provide a greater, or additional warranty and/or to be liable for some or all of the disclaimed or limited liability, the prices set forth on this offer are not available, and the Buyer must notify Seller before Buyer accepts this offer (or is deemed to accept it) pursuant to paragraph 1 above. Seller will then make a new offer containing prices reflecting that additional exposure. In the absence of such a new offer, all of the terms in this form shall be enforceable. By accepting this offer, Buyer understands that it is foregoing the possibility of, among other things, recovery of consequential damages from Seller and of indemnity for tort liability in exchange for Buyer obtaining a lower sales price for the products and/or services. All prices listed are payable in United States Dollars. All prices are subject to change without notice. Seller’s receipt of Buyer’s P.O. does not confirm pricing. Seller must fully process all orders before pricing is confirmed. Payment is due net 30 days after Buyer’s receipt of Seller’s invoice, unless Seller requires payment in advance, or unless the face of this form states different terms. Notwithstanding the above, at its option at any time, Seller may require Buyer to make payment by irrevocable letter of credit, and may defer shipment or cancel any order if the Buyer does not promptly provide such a letter of credit. In that event, the letter of credit shall be issued for Seller’s benefit by a prime U.S. bank, shall be subject to and governed by the Uniform Customs and Practice for Documentary Credits (ICC Publication No. 290, 1974 Revision), shall provide for payment against Seller’s invoice and bill of lading, and shall be in form and substance satisfactory to Seller. Interest will be charged at the rate of 18% per year (or such lesser sum as is the highest rate permitted by applicable law) on accounts past due.
3. QUANTITIES: For each individual item ordered hereunder, Buyer agrees to accept overruns or under runs not exceeding 10% of the quantity set forth on the face of this form, unless a provision for closer control over quantity is expressly stipulated on the reverse side hereof.
4. TAXES AND OTHER CHARGES: Any manufacturer’s tax, occupation tax, use tax, sales tax, excise tax, value added tax, duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever imposed by any governmental authority, on or measured by the transaction between Seller and the Buyer’s shall be paid by the Buyer in addition to the prices quoted or invoiced. In the event the Seller is required to pay any such tax, fee or charge, the Buyer shall reimburse Seller thereof; or in lieu of such payment, the Buyer shall provide Seller at the time the order is submitted with an exemption certificate or other document acceptable to the authority imposing the same.
5. DELIVERY, CLAIMS AND FORCE MAJEURE: The shipping terms for all products sold hereunder are F.O.B. Seller’s warehouse in Carrollton, Texas, U.S.A., unless otherwise stated on the reverse side hereof. Delivery of products to a carrier at Seller’s plant or other loading point shall constitute delivery to Buyer; and regardless of shipping terms or freight payment, all risk of loss or damage in transit shall be borne by Buyer. Purchases valued in excess of $100 will be shipped insured. Seller reserves the right to make delivery in installments, unless otherwise expressly stipulated herein; all such installments to be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries. Any deliveries not in dispute shall be paid for regardless of other controversies relating to other delivered or undelivered merchandise. Delay in delivery of any installment shall not relieve Buyer of its obligations to accept remaining deliveries. Method and route of shipment shall be at the discretion of Seller unless Buyer shall specify otherwise; any additional expense of the method or route of shipment specified by Buyer shall be borne entirely by Buyer. Buyer shall bear all costs of bags, barrels, boxes, pallets or other container used to ship products sold hereunder. No shipping containers may be returned to Seller unless such return is accepted in advance by Seller in writing and unless all return freight is prepaid by Buyer. Claims for shortages or other errors in delivery must be made in writing to Seller within 15 days after receipt of shipment. Failure to give such notice shall constitute unqualified acceptance of all shipments made prior to Seller’s receipt of Buyer’s notice of claim, and shall constitute a waiver of all such claims by Buyer. Claims for loss or damage to products in transit should be made to the carrier and not the Seller. All delivery dates are approximate. Seller shall not be liable for any damage as a result of any delay or failure to deliver due to any act of God, act of the Buyer, embargo or other governmental act, regulation or request, fire, accident, strike, slowdown or other labor difficulties, war, riot, delay in transportation, defaults of common carriers, inability to obtain necessary labor, materials or manufacturing facilities or, without limiting the foregoing, any other delays beyond the Seller’s control. In the event of any such delay the date of delivery shall be extended for a period equal to the time lost because of the delay. Buyer’s exclusive remedy for other delays and for Seller’s inability to deliver for any reason including Buyer’s inability to produce goods which meet the requirements of this contract shall be rescission of this agreement.
6. STORAGE: If the products are not shipped within 15 days after notification to the Buyer that they are ready for shipping, for any reason beyond Seller’s reasonable control, including the Buyer’s failure to give shipping instructions, Seller may store such products at the Buyer’s risk in warehouse or yard or upon Seller’s premises, and the Buyer shall pay all handling, transportation and storage charges at the prevailing commercial rates upon submission of invoices therefore.
7. CHANGES: Seller may at any time make such changes in design and construction of products as Seller deems appropriate, without notice to Buyer. Seller may furnish suitable substitutes for materials unobtainable because of priorities or regulations established by governmental authority or non-availability of materials from suppliers.
8. QUALITY CONTROL: Prior to shipment, Seller shall inspect the products on a percentage basis only, in accordance with its standard practice of quality control. Seller shall not provide 100% inspection or employ AQL procedures unless expressly stated on the reverse side hereof.
9. WARRANTIES: Seller warrants that the products manufactured by its suppliers and supplied hereunder shall conform to the dimensions and specifications of manufacturer’s standard parts as shown in Seller’s/manufacturer’s catalog(s), or to Buyer’s print dimensions, tolerances and material specifications, if provided. In absence of specific requirements provided by Buyer in writing, product tolerances shall be judged against commercial tolerances, custom, usage and practices generally accepted in industry, based on standard procedures employed without the use of additional operations or tooling. If any such product shall be proved to Seller’s satisfaction to be nonconforming, Seller shall have the option to credit the purchase price of such product or repair or replace such product. Such credit, repair or replacement shall be Seller’s sole obligation and Buyer’s exclusive remedy hereunder and shall be conditioned upon Seller’s receiving written notice of any alleged nonconformity within 15 days after receipt of shipment and, at Seller’s option, return of such products to Seller, F.O.B. its factory. Products supplied by Seller hereunder which are manufactured by someone else are not warranted by Seller in any way, but Seller agrees to assign to Buyer any warranty rights in such products that Seller may have from the original manufacturer.
THE WARRANTY CONTAINED IN THIS SECTION 9 IS EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES (EXCEPT OF TITLE), EXPRESS OR IMPLIED, AND SELLER EXPRESSLY DISCLAIMS AND EXCLUDES ANY IMPLIED WARRANTY OF MERCHANTABILITY OR IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. This exclusive remedy shall not be deemed to have failed of its essential purpose so long as the Seller is willing and able to repair or replace nonconforming products, or credit the purchase price, within ninety (90) days of the date which Seller determines that such products are nonconforming. Any suggestions by Seller or Seller’s agents regarding use, application or suitability of the products shall not be construed as an express warranty unless confirmed to be such in writing by Seller.
10. COMPLIANCE WITH LAWS: Seller strives to comply with the provisions of all federal, state and local laws, standards and regulations for which liability may accrue to Buyer for violation thereof. However, Seller does not warrant that the products supplied hereunder meet the requirements of any local, state or federal laws or regulations, including those issued under OSHA.
11. RETURNS: Products IN STOCK may be returned to Seller only when Seller’s written permission, signed by duly authorized personnel of Seller, shall be obtained by Buyer in advance. Goods may not be returned unless they are in marketable condition. Returned products must be securely packaged and reach Seller without damage. Any cost incurred by Seller to put products in marketable condition will be charged to Buyer. Seller reserves the right to charge a restocking fee. Products ORDERED SPECIFICALLY FOR BUYER are non-cancelable/non-returnable (NCNR) and buyer assumes full responsibility for such products. This includes products that have been ordered from and manufactured by our suppliers, materials purchased for products by our suppliers and products in process by our suppliers, and products already shipped to you or that are being held in inventory by you. As such, purchase orders issued by buyer for products ordered specifically for buyer cannot be cancelled and the product cannot be returned for any other reason other than manufacturing defect.
12. PATENTS, TRADEMARKS AND COPYRIGHTS: Seller will, at its own expense, defend any suits that may be instituted by anyone against Buyer for alleged infringement of any United States patent, trademark, or copyright relating to any products manufactured and furnished by Seller hereunder, if such alleged infringement consists of the use of such products, or parts thereof, in Buyer’s business and provided Buyer shall have made all payments then due hereunder and shall give Seller immediate notice in writing of any such suit and transmit to Seller immediately upon receipt all processes and papers served upon Buyer and permit Seller through its counsel, either in the name of Buyer or in the name of Seller, to defend the same and give all needed information, assistance and authority to enable Seller to do so. If such products are in such suit held in and of themselves to infringe any valid United States patent, trademark or copyright, then: (a) Seller will pay any final award of damages in such suit attributable to such infringement, and (b) if in such suit use of such products by Buyer is permanently enjoined by reason of such infringement, Seller shall, at its own expense and at its sole option, either (i) procure for Buyer the right to continue using the products, (ii) modify the products to render them non-infringing, (iii) replace the products with non-infringing goods, or (iv) refund the purchase price and the transportation costs paid by Buyer for the products. Notwithstanding the foregoing, Seller shall not be responsible for any compromise or settlement made without its written consent, or for infringements of combination or process patents covering the use of the products in combination with other goods or materials not furnished by Seller. The foregoing states the entire liability of Seller for infringement, and no event shall Seller be liable for consequential damages attributable to an infringement. As to any products furnished by Seller to Buyer manufactured in accordance with drawings, prints, designs, samples or specifications proposed or furnished by Buyer or any claim of contributory infringement resulting from the use or resale by Buyer of products sold hereunder, Seller shall not be liable, and Buyer shall indemnify Seller and hold Seller harmless from and against any and all loss, liability, damage, claim or expense (including but not limited to Seller’s reasonable attorney’s fees and other costs of defense) incurred by Seller as a result of any claim of patent, trademark, copyright or trade secret infringements, or infringements of any other proprietary right of third parties. The purchase of any products hereunder does not entitle Buyer to employ the same in any patented process.
13. EXCLUSION OF CONSEQUENTIAL DAMAGES AND DISCLAIMER OF LIABILITY; BUYER’S INDEMNITY: Seller’s liability with respect to breaches of warranty shall be limited as provided in Section 9 hereof. With respect to other breaches of this contract, Seller’s liability shall in no event exceed the contract price. SELLER SHALL NOT BE SUBJECT TO AND DISCLAIMS: (1) ANY OTHER OBLIGATIONS OR LIABILITIES ARISING OUT OF BREACH OF CONTRACT OR OF WARRANTY, (2) ANY OBLIGATIONS WHATSOEVER ARISING FROM TORT CLAIMS (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR ARISING UNDER OTHER THEORIES OF LAW WITH RESPECT TO PRODUCTS SOLD OR SERVICES RENDERED BY SELLER, OR ANY UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO, AND (3) ALL CONSEQUENTIAL, INCIDENTAL AND CONTINGENT DAMAGES WHATSOEVER. Without limiting the generality of the foregoing, Seller specifically disclaims any liability for penalties (including administrative penalties), special or punitive damages, damages for lost profits or revenues, loss of use of products or any associated equipment, cost of capital, facilities or services, downtime, shut-down or slowdown costs, spoilage of material, or for any other type of economic loss. All the limitations and disclaimers contained in this paragraph and in the rest of this contract shall apply to claims of Buyer’s customers or any third party asserted by Buyer against Seller for indemnity or contribution, as well as direct claims of Buyer against Seller. Buyer shall indemnify Seller against any and all losses, liabilities, damages and expenses (including, without
limitation, attorneys fees and other costs of defending any action) which Seller may incur as a result of any claim by Buyer or others arising out of or in connection with the products and/or services sold hereunder and based on product or service defects not proven to have been caused solely by Seller’s negligence.
14. TECHNICAL INFORMATION: Any sketches, models, samples or designs submitted by Seller shall remain the property of Seller, and shall not be treated as confidential information unless the Seller has in writing indicated a contrary intent. No use or disclosure of such sketches, models and samples, or any design or production process or techniques revealed thereby, shall be made without the express written consent of the Seller.
15. TOOLING: Unless otherwise agreed, any dies, tools or gages (“Tooling”) which Seller manufactures or acquires for the performance of this contract, together with any corresponding design drawings, shall remain the property of Seller, notwithstanding any tooling charges therefore. Tooling charges shall apply only to custom Tooling made solely for Buyer’s specific requirements (“Custom Tooling”) and shall not apply to Seller’s proprietary Tooling. Tooling charges convey to Buyer the right to have the Custom Tooling used by Seller for the performance of this contract, but they do not convey title, right of possession or right of removal or include cost of engineering or design. Seller shall be responsible for routine maintenance and repair of all Tooling. Major overhauls, replacements or changes to Custom Tooling shall be charged to Buyer. Custom Tooling that is inactive for a period of 3 years may, at the option of Seller, be scrapped by Seller. Any resulting scrap value of the Custom Tooling shall belong to Seller as payment for storage and maintenance cost.
16. PART NUMBERS: Buyer furnished part numbers are for Buyer reference only. Seller references manufacturer’s part numbers only on all quotes, confirmations, purchase orders, invoices, shipping documents and any other documents. Seller makes no effort to verify, cross reference or confirm accuracy or authenticity of Buyer furnished part numbers.
17. SAMPLES: Upon Buyer’s request, Seller shall supply preproduction samples for dimensional approval and Seller shall have the right to charge for the cost of material and manufacture necessary to produce such samples, unless such samples are made from completely new Tooling and Buyer has placed an order for a sufficient number of corresponding production parts, in which case the samples shall be provided without charge.
18. SECURITY INTEREST: Title to the goods sold hereunder, and all additions or accessions to and substitutions for such equipment, shall remain in the Seller as a security interest, and Buyer hereby grants to Seller a security interest in the goods sold hereunder, until the Buyer has completed payment of the purchase price, plus accrued interest, and fully performed all of the other terms and conditions hereof, at which time the Seller’s security interest is satisfied.
19. ADDITIONAL DOCUMENTS; POWER OF ATTORNEY: At the request of Seller, Buyer will join with Seller in executing one or more Financing Statements, pursuant to the Uniform Commercial Code in form satisfactory to Seller and will pay the cost of filing the same in public offices whenever filing is deemed by Seller to be necessary or desirable. If Buyer fails to promptly execute and file such Financing Statements, then Buyer appoints any officer, employee, or agent of Seller as Buyer’s attorney-in-fact for purposes of signing and filing said Financing Statements, and hereby authorizes such officer, employee, or agent to execute and file such Financial Statements in the name of Buyer.
20. SEVERABILITY: If any provisions of these terms and conditions of sale shall be deemed illegal or unenforceable, such illegal or unenforceability shall not affect the validity and enforceability of any legal and enforceable provision hereof, which shall be construed as if such illegal and unenforceable provision(s) had not been inserted herein.
Terms & Conditions for Purchase Orders: Advance to Suppliers
1. Applicability. This purchase order is an offer by Advance Components, Inc.(“Buyer”) for the purchase of the goods or services specified on the face of this purchase order from the party to whom the purchase order is addressed (“Seller”) in accordance with and subject to these terms and conditions (the “Terms”; together with the terms and conditions on the face of the purchase order, the “Order”). This Order, together with any documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to Buyer’s purchase order, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter hereof. Seller’s acceptance is expressly limited to the terms of this Order. These Terms prevail over any terms or conditions contained in any other documentation and expressly exclude any of Seller’s general terms and conditions of sale or any other document issued by Seller in connection with this Order. If this Order has been issued by Buyer in response to an offer, the terms of which are additional to or different from any of the provisions hereof, then the issuance of this Order by Buyer is subject to the express condition that Seller assent that this Order constitutes the entire agreement between Buyer and Seller with respect to the subject matter hereof and thereof. These Terms apply to any repaired or replacement goods provided by Seller hereunder.
2. Acceptance. Seller’s written acceptance or commencement of performance of this Order shall constitute acceptance. Buyer may withdraw this Order any time before acceptance.
3. Delivery Date. Seller shall deliver the goods in the ordered quantities or perform the services, each on the date(s) specified in this Order or as otherwise agreed in writing by the parties (the “Delivery Date”). Timely delivery of the goods or services is of the essence. If Seller fails to deliver the goods or perform the services in full on the Delivery Date, Buyer may terminate this Order immediately by written notice to Seller and Seller shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses attributable to Seller’s failure to deliver the goods or perform the services on the Delivery Date. Alternatively, if Seller fails to meet the Delivery Date, Buyer, without limiting its other rights or remedies, may direct expedited routing; any excess costs incurred thereby shall be debited to Seller’s account. Buyer may return any goods delivered prior to the Delivery Date at Seller’s expense and Seller shall redeliver such goods on the Delivery Date.
4. Delivery Location. All goods shall be delivered to the address specified in this Order (the “Delivery Location”) or as otherwise instructed by Buyer.
5. Shipping. Delivery shall be as stated on the face of the Order, but if not so stated, then delivery of goods shall be DDP Delivery Location (Incoterms 2010). Seller shall give written notice of shipment to Buyer when the goods are delivered to a commercial carrier. Seller shall provide Buyer all shipping documents, including the commercial invoice, packing list, air waybill/bill of lading and any other documents necessary to release the goods to Buyer promptly after Seller delivers the goods to the transportation carrier. This Order number must appear on all shipping documents, shipping labels, air waybill/bill of lading, invoices, correspondence and any other documents pertaining to this Order. Quantity of goods delivered shall not exceed 10% over or under the quantity ordered by Buyer unless otherwise noted on the face of the Purchase Order.
6. Title /Risk of Loss. Title passes to Buyer upon delivery of the goods to the Delivery Location. Seller bears all risk of loss or damage to the goods until delivery of the goods to the Delivery Location.
7. Packaging. Goods must be packed for shipment according to Buyer’s instructions or, if none, in a manner sufficient to ensure that the goods are delivered in undamaged condition. Goods shall be marked and labeled in compliance with all applicable laws, standards and regulations. Seller must provide Buyer prior written notice if it requires Buyer to return any packaging material. Any return of packaging material shall be at Seller’s expense.
8. Amendment. No change to this Order is binding upon Buyer unless it is in writing, specifically states that it amends this Order and is signed by a Buyer authorized representative.
9. Nonconforming Goods. Buyer may inspect all or a sample of the goods on or after the Delivery Date. Buyer, at its sole option, may reject all or any portion of the goods if it determines they are nonconforming or defective. If Buyer rejects any portion of the goods, Buyer may, upon written notice to Seller: (a) rescind this Order in its entirety; (b) accept the goods at a reasonably reduced price; or (c) reject the goods and require replacement thereof. If Buyer requires replacement of the goods, Seller shall, at its expense, promptly replace the nonconforming goods and pay for all related expenses, including, but not limited to, transportation charges for return of the defective goods and delivery of replacement goods. If Seller fails to timely deliver replacement goods, Buyer may replace them with goods from a third party and charge Seller the cost thereof and terminate this Order for default. Any inspection or other action by Buyer hereunder will not reduce or otherwise affect Seller’s obligations under this Order. Buyer may conduct further inspections after Seller has carried out its remedial actions. If the Seller identifies nonconforming goods prior to or following shipment to Buyer, Seller shall notify Buyer immediately. Buyer will evaluate the nonconformance and determine appropriate disposition. 10. Price. The price of the goods or services is the price stated in this Order. If no price is included in this Order, the price shall be the price set out in Seller’s published price list in force as of the date of this Order. Unless otherwise specified in this Order, the price includes all packaging. No increase in the price is effective, whether due to increased material, labor or transportation costs or otherwise, without Buyer’s prior written consent.
11. Most Favored Customer. Seller warrants that the price for the goods or services is the lowest price charged by Seller to any of its customers for similar volumes of similar goods or services. If Seller charges any other customer a lower price, Seller must apply that price to all goods or services under this Order. If Seller fails to meet the lower price, Buyer, at its option, may terminate this Order for default.
12. Payment Terms. Seller shall issue an invoice to Buyer on or after the delivery and only in accordance with these Terms. Except as otherwise set forth on the face of the Order, Buyer shall pay all properly invoiced amounts due to Seller according to Buyer’s established terms with Seller after Buyer’s receipt of such invoice, except for any amounts disputed by Buyer in good faith. All payments hereunder will be in US dollars and made by company check or as may otherwise be agreed between Buyer and Seller. In the event of a payment dispute, Buyer shall deliver a written notice to Seller reasonably describing each disputed item. The parties shall seek to resolve all such disputes expeditiously and in good faith. Seller shall continue performing its obligations under this Order notwithstanding any such dispute.
13. Changes by Buyer. Buyer may, at any time, in writing, make changes within the general scope of this Order, in any one or more of the following: (a) applicable drawings, designs or specifications; (b) method of shipment or packing; (c) place or timing of delivery; (d) materials, methods or manner of production; or (e) quantity. If any such change causes an increase or decrease in the cost of or the time required for performance of this Order, an equitable adjustment shall be made in the price or delivery schedule or both, and this Order shall be modified accordingly. Any claim by Seller for adjustment hereunder must be asserted within 20 days from Seller’s receipt of the change notice, but such period may be extended upon Buyer’s written approval. However, nothing in this clause will excuse Seller from proceeding with this Order as changed or modified.
14. Changes by Seller. Seller shall notify buyer 30 days in advance of obsolescence or discontinuation of any materials, processes or products. Changes by Seller to the goods, manufacturing processes, location of manufacturing facility, sub-suppliers and raw materials or construction thereof, will not be made without prior written approval from Buyer.
15. Set-off. Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Buyer to Seller.
16. Warranties. Seller warrants to Buyer that all goods or services will conform to applicable specifications, drawings, designs, samples and other requirements specified by Buyer and will be merchantable; free from any defects in workmanship, material and design; fit for their intended purpose and operate as intended; merchantable; and free and clear of all liens, security interests or other encumbrances. Goods and services provided hereunder will not infringe or misappropriate any third party’s patent or other intellectual property rights. These warranties survive any delivery, inspection, acceptance or payment of or for the goods or services by Buyer. These warranties are cumulative and in addition to any other warranty provided by law or equity and shall survive acceptance of and payment for the goods ordered or services provided hereunder. Any applicable statute of limitations runs from the date of Buyer’s discovery of the noncompliance of the goods or services with the foregoing warranties. If Buyer gives Seller notice of noncompliance, Seller shall, at its own expense, promptly replace or repair the defective or nonconforming goods or services and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods or services to Seller and the delivery of repaired or replacement goods or services to Buyer.
17. Termination for Default. In addition to any remedies that may be provided under these Terms, Buyer may terminate this Order with immediate effect upon written notice to Seller, either before or after the acceptance of the goods or services, if Seller has not performed or complied with any of these Terms, in whole or in part, if Seller fails to make progress so as to endanger performance of the Order as reasonably determined by Buyer, or if Seller becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. If Buyer terminates this Order pursuant hereto, Seller’s sole and exclusive remedy is payment for the goods or services received and accepted by Buyer prior to termination.
18. Termination for Convenience. Buyer may at any time (notwithstanding the existence of any of the causes or events specified in Section 16 or any other condition of default) to cancel in whole or in part, the undelivered portion of the goods or services by written notice to Seller, who shall immediately upon receipt of such notice discontinue all work in respect to the cancelled portion of this Order except as may be necessary to preserve and protect the work and materials then in process. Seller shall use its best efforts to cancel and terminate all then existing orders placed by Seller which are chargeable to the cancelled portion of this Order. In the event of such termination and if Seller is not in default hereunder, Buyer shall pay Seller, in addition to the price for all conforming goods and services previously delivered to and accepted by Buyer in accordance with the terms of this Order and not previously paid for, all reasonable direct costs necessarily incurred by Seller in connection with the cancelled portion of this Order, provided that Seller delivers to Buyer all goods, services and raw materials paid for by Buyer.
19. Indemnity. Seller shall defend, indemnify and hold harmless Buyer, their subsidiaries, affiliates, successors or assigns and their respective directors, officers and employees and Buyer’s customers (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any rights hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with the goods purchased or services received from Seller or Seller’s negligence, willful misconduct or breach of these Terms. Seller shall not enter into any settlement without Buyer’s or Indemnitee’s prior written consent.
20. Intellectual Property Indemnity. Seller shall, at its expense, defend, indemnify and hold harmless Indemnitees against any and all Losses arising out of or in connection with any claim that such Indemnitee’s use or possession of the goods or receipt of the services infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. Seller shall not enter into any settlement without Indemnitee’s prior written consent.
21. Insurance. Seller shall maintain Commercial General Liability insurance, including public, product, premises and completed operations, contractual and vendors liability, with limits of not less than $2,000,000 per occurrence and in the aggregate. Such insurance must: (a) be maintained with an insurance carrier reasonably acceptable to Buyer; (b) be written in a form reasonably acceptable to Buyer; (c) be primary and noncontributory with respect to any insurance carried by or on behalf of Buyer, (d) contain a waiver of subrogation in favor of Buyer; and (e) include Buyer as an additional insured. On Buyer’s request, Seller shall provide Buyer with certificates of insurance evidencing the coverage required hereunder. Seller must notify Buyer at least 30 days in advance of any material change, cancellation or nonrenewal of any such policy, except that ten-days-notice is required in the event of cancellation for non-payment of premium.
22. Subcontractors. If Seller uses subcontractors for any part of the manufacture of the goods or performance of the services hereunder, Seller shall be responsible and liable for all acts or omissions of its subcontractors. Seller must obtain prior written authorization from Buyer to use subcontractors for any activity relating to the goods or services provided hereunder occurring on Buyer’s premises. These Terms shall be applicable to all subcontractors and Seller is responsible for enforcement. Seller will maintain a contractor management program to ensure that subcontractors comply with the safety requirements of these Terms and the Order. The Seller is responsible to flow down to its sub-suppliers all applicable Buyer requirements, including regulatory requirements where required.
23. Compliance with Law. Seller warrants that it is in compliance with and shall comply with all applicable laws, regulations and ordinances, including but not limited to, all laws prohibiting engagement in corrupt practices, such as the U.S. Foreign Corrupt Practice Act and the U.K. Bribery Act (2010). Seller has, and shall maintain in effect, all licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Order.
24. Record Retention, Inspection and Audit Rights. Seller shall maintain complete books and records, including inspection records, with respect to all goods and services, which records shall be in English and be available to Buyer during performance of this Order and until the later of four years after final payment; final resolution of any dispute involving the goods or services delivered hereunder; or the latest time required by applicable law or regulation. Seller shall at any time, and after reasonable notice by Buyer, (i) grant to Buyer, Buyer’s customers and/or to any applicable regulatory authority, unrestricted access to (or if Buyer so requests, provide to Buyer copies of) such books and records, wherever such books and records may be located (including third-party repositories), and (ii) provide Buyer, Buyer’s customers and/or any such authority the right to access, and to perform any type of inspection, test, audit or investigation at Seller’s premises, including manufacturing and test locations, for the purpose of enabling Buyer to verify compliance with the requirements of this Order or for any other purpose indicated by Buyer’s customers or said authority in certification, manufacture, use and/or connection with the design, development or support of the goods or services. Seller and its subcontractors shall furnish all reasonable facilities and assistance for the safe performance of the inspection, test, audit and/or investigation.
25. Conflict Minerals. Buyer is committed to sourcing minerals from conflict-affected and high-risk areas in accordance with Buyer’s corporate policies, legal obligations and existing international standards, and Seller agrees to provide Buyer with supply chain data as and when Buyer reasonably requests to enable Buyer and its customers to fulfill their legal obligations under the Dodd Frank Wall Street Reform and Consumer Protection Act. Specifically, on an on-going basis, Buyer will request data from Seller concerning the so-called “conflict minerals” used in Seller’s products, the origin of such minerals in Seller’s supply chains, and whether trade in these minerals may support conflict in the Democratic Republic of the Congo (DRC) and its adjoining countries. Buyer expects Seller to pass these data requests up Seller’s supply chain in order to determine the source of such minerals. Buyer may be required, and may require Seller, to perform due diligence on the chain of custody of conflict minerals in the supply chain. In addition, Seller may be required to make certifications to Buyer with respect to the use of conflict minerals. Buyer will evaluate and may terminate the ongoing business relationship with Seller if Seller’s supply chain is determined to include the purchase of minerals that support conflict in this region, or if Seller fails to timely provide relevant data or certifications upon Buyer’s requests.
26. No Waiver. No waiver by any party of any of the provisions of this Order will be effective unless in writing and signed by the party so waiving. Except as otherwise set forth in this Order, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Order will operate or be construed as a waiver thereof, nor will any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
27. Confidential Information. All confidential or proprietary information of Buyer, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, whether disclosed orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with this Order is confidential, solely for the use of performing this Order and may not be disclosed or copied unless Buyer agrees in writing. Upon Buyer’s request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to Seller at the time of disclosure; or (c) rightfully obtained by Seller on a non-confidential basis from a third party who was not under any obligation of confidentiality.
28. Force Majeure. Neither party shall be liable to the other for any delay or failure in performing its obligations under this Order to the extent such delay or failure is caused by an event or circumstance that is beyond that party’s reasonable control, without such party’s fault or negligence, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable (a “Force Majeure Event”). Force Majeure Events include, but are not limited to, acts of God or the public enemy, government restrictions, floods, fire, earthquakes, explosion, epidemic, war, invasion, hostilities, terrorist acts, riots, strikes, embargoes or industrial disturbances. Seller’s economic hardship, labor difficulties or changes in market conditions are not considered Force Majeure Events. Seller shall use all diligent efforts to immediately notify Buyer in writing of any actual or potential Force Majeure Event, end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized and resume performance under this Order. If a Force Majeure Event prevents Seller from carrying out its obligations under this Order for a continuous period of more than ten business days, Buyer may terminate this Order immediately by written notice.
29. Assignment. Seller shall not assign, transfer, delegate or subcontract any of its rights or obligations under this Order without Buyer’s prior written consent. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve Seller of any of its obligations hereunder. Buyer may at any time assign, transfer or subcontract any or all of its rights or obligations under this Order without Seller’s prior written consent.
30. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Order shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from this Order.
31. No Third-Party Beneficiaries. This Order is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
32. Governing Law. All matters arising out of or relating to this Order shall be governed by and construed in accordance with the laws of the State of Texas without giving effect to any choice or conflict of law rule that would cause the application of the laws of any other jurisdiction. The United Nations Convention on the International Sale of Goods shall not apply to any matter arising out of or relating to this Order.
33. Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or relating to this Order shall be instituted in the federal courts of the United States of America or the courts of the State of Texas, in each case located in the City of Carrollton and County of Dallas, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
34. Cumulative Remedies. The rights and remedies under this Order are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
35. Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of this Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified mail (return receipt requested, postage prepaid). Except as otherwise provided in this Order, a Notice is effective only upon receipt of the receiving party and if the party giving the Notice has complied with the requirements of this Section.
36. Severability. If any term or provision of this Order is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Order or invalidate or render unenforceable such term or provision in any other jurisdiction.
37. Survival. Provisions of this Order which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Order including, but not limited to, the following provisions: Setoff, Warranties, Indemnification, Intellectual Property, Indemnification, Insurance, Compliance with Laws, Confidentiality, Governing Law, Submission to Jurisdiction and Survival.