Purchase Order Terms & Conditions
1. Definitions.
“Buyer” means the entity named on the Purchase Order.
“Buyer Confidential Information” means any of the following information of Buyer that was or is disclosed to, provided to, or otherwise obtained or observed by Seller: (i) the Purchase Order, the subject matter of the Purchase Order, and the terms of the Purchase Order; and (iii) information of every kind (e.g., business plans, product roadmaps, personnel lists, customer lists, marketing and technical information, including the Specifications), provided to, obtained by, or otherwise observed by Seller previously or in the future.
“Products” means all goods, items, articles, materials, apparatus, equipment, labor, work, services, work product, and operations of Seller, whether specified, listed, mentioned, scheduled or implied in the Purchase Order.
“Purchase Order(s)” means the purchase order provided by Buyer to Seller respecting the provision of Products to Buyer.
“Seller” means the supplier identified on the Purchase Order.
2. Acceptance.
The Purchase Order is Buyer’s offer to purchase Products from Seller. Seller acknowledges acceptance of the Purchase Order is and all its terms and conditions unless Seller raises exceptions within five (5) days after the date of the Purchase Order. None of the terms and conditions of the Purchase Order may be added to, modified, superseded, or otherwise altered except by a written instrument signed by an authorized representative of Buyer, and each performance or delivery of Products to Buyer by Seller shall be deemed to be only upon the terms and conditions contained in the Purchase Order. Any terms or conditions in Seller´s acknowledgment, invoice, other similar forms or documents of Seller including, without limitation package inserts and labels, relating to the Products, that are inconsistent with or in addition to, or that alter in any way, the provisions of these Terms and Conditions, are hereby null and void. This Purchase Order, including any supplementary schedules, exhibits, riders, and attachments annexed hereto by Buyer, contains the complete and entire agreement between the parties with respect to the sale of Products by Seller to Buyer and supersedes any other communications, representations, warranties, understandings or agreements, of any kind, oral or written, concerning this order. These terms and conditions shall prevail over any terms and 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 the sale of Products hereunder.
3. Pricing.
The prices stated on the Purchase Order are not subject to increase, and, if no price appears thereon, shall not be higher than the last price quoted by Seller for similar Products. Unless otherwise specified on the Purchase Order, prices include all charges for packaging, storage, and transportation to the point of delivery, and all taxes, duties, or other similar costs. No additional charges of any kind will be allowed. Payment for undisputed invoices shall be due on the date specified in the Purchase Order. Buyer will not be obligated to pay any amounts it disputes in good faith until the dispute has been resolved to Buyer’s reasonable satisfaction. The parties will work together diligently and in good faith to resolve all disputes as quickly as possible. Neither the failure to dispute any charges prior to payment nor the failure to withhold any amount will constitute, operate or be construed as a waiver of any right Buyer may otherwise have to dispute any charge or recover any amount previously paid.
4. Shipping and Packing.
Time is therefore of the essence in this Purchase Order. Shipment and delivery of Products shall be in accordance with the schedules, dates, and delivery destinations specified in the Purchase Order. In addition to other rights or remedies available by law or these Terms and Conditions, if deliveries are not made at the time agreed upon, Buyer reserves the right to cancel or to purchase elsewhere and to hold the Seller accountable therefore. Products shall be suitably packed to ensure the Products are delivered in an undamaged condition, secure lowest transportation costs and conform to the requirements of common carriers and any applicable specifications. Each package shall be numbered and labeled with the Purchase Order number and shall contain an itemized packing list. Seller shall comply with Buyer’s shipping instructions. Unless otherwise specified in the Purchase Order, all shipments shall be DDP Buyer’s specified location. Title and risk of loss to Products transfers to Buyer when the Products are made available at the Buyer’s specified location. For international shipments, Seller is responsible for export clearance and providing export documentation. Subject to inspection and acceptance, Buyer will be liable for payment only for quantities ordered and delivered. Over-shipments shall be held at Seller’s risk and expense for a reasonable time awaiting shipping instructions. Shipping charges for returns shall be at Seller’s expense.
5. Inspection.
The Products may be inspected by Buyer at all times and places and at any stage of production, and if at the premises of Seller, Seller, without additional charge, shall provide all reasonable facilities and assistance required for safe and convenient test and inspection. The foregoing shall not relieve Seller of its obligation to make full and adequate test and inspection. Any inspection prior to final acceptance at Buyer’s premises shall not be a waiver of Buyer’s right to inspect upon delivery. Buyer may base acceptance or rejection on any or all Products on inspection by sampling. If, upon inspection, any of the Products shall be found to be defective in material or workmanship, or otherwise not in conformity with the requirements of the Purchase Order, Buyer may, in addition to its other rights: (a) require prompt correction, or replacement thereof at Seller’s expense, including transportation charges; (b) rework, or have reworked, any such articles at Seller’s expense for the purpose of conforming the articles to contractual requirements; (c) reject any such Products and require the immediate removal thereof, Buyer to be repaid or credited the full invoice price therefore plus transportation charges; or (d) cancel the Purchase Order in whole or in part in accordance with the terms herein.
6. Changes.
Buyer may at any time prior to shipment, without charge or liability, change delivery schedules, or quantities of Product by written order and may change the method of shipment, packing and place or time of delivery by any means of communication. If such change affects cost or delivery schedules of this order, an equitable adjustment shall be made for actual resulting costs incurred by Seller, provided Seller makes a written claim within fifteen (15) days of Buyer’s notification, but this clause shall not excuse Seller from proceeding immediately with this order as changed.
7. Warranty.
Seller warrants that the Products (i) meet all requirements of the Purchase Order; (ii) have been and/or will be manufactured or performed in accordance with all applicable laws and regulations; (iii) conform to specifications and designs provided by Seller to Buyer and conform to any Buyer’s specifications, drawings, or information; (iv) are and will continue to be free from defects in materials, workmanship, and design (except to the extent the design and materials were supplied by Buyer) until 12 months from delivery; (v) are suitable for Buyer’s intended purposes; (vi) are new items containing new component parts; (vii) are free from any liens or encumbrances of title; (viii) are free from claims by third parties; and (ix) have been performed in a good workman-like manner according to industry standards. The foregoing warranties shall survive any inspection, acceptance, or payment for such Products. In the event a defect or non-conformance is discovered, Buyer shall give Seller notice of such defect and Seller shall, at Seller’s sole expense, promptly repair or replace such Products. In the event Seller fails to repair or replace such defective Products, Buyer may, at its election, repair and replace such defective Products and Seller shall promptly repay Buyer for all such costs of repair or replacement.
8. Termination.
Buyer may terminate work under the Purchase Order, in whole or in part, at any time by giving notice to Seller in writing. Seller will thereupon immediately stop work on the Purchase Order or the terminated portion hereof and notify any subcontractors to do likewise. If Buyer terminates the Purchase Order pursuant to this Section, Buyer shall pay Seller for the delivered portion of the Purchase Order at the rate specified on the face hereof. Buyer shall have no other liability to the Seller for termination. If Seller breaches any provision of this order, Buyer may terminate the whole or any part of this order, unless Seller cures the breach within five (5) days after receipt of Buyer’s notice of breach. For purposes of hereof “breach” shall, without limitation, include (a) Seller’s failure to provide Buyer, upon request, with reasonable assurances of performance; or (b) any other failure by Seller to comply with the Purchase Order. If Buyer terminates this order in whole or in part for Seller’s breach Buyer may procure, upon such terms and in such manner as Buyer deems appropriate, replacement goods or services, and Seller shall reimburse Buyer upon demand for all additional costs incurred by Buyer in purchasing such replacement goods or services.
9. Ownership.
All materials and tools, including all dies, tools, gauges, fixtures, equipment, molds and patterns furnished or specifically paid for by Buyer, shall be the property of Buyer, subject to removal at any time without additional cost upon demand by Buyer, used only in filling orders from Buyer, kept separate from other materials or tools, and clearly identified as the property of Buyer. Seller assumes all liability for loss or damage to such material, with the exception of normal wear and tear, and agrees to supply detailed statements of inventory promptly upon request.
10. Confidentiality.
Seller shall not disclose Buyer Confidential Information to any third party and shall use Buyer Confidential Information only in the performance of Purchase Orders for Buyer. Buyer Confidential Information shall remain the property of Buyer, and upon termination or expiration of the Purchase Order or upon request, Seller shall cease use of and, at Buyer’s sole discretion, return to Buyer or destroy all Buyer Confidential Information. Unless otherwise agreed in writing by Buyer, Seller will not disclose to Buyer any information of Seller or a third party that Seller considers to be confidential. Buyer Confidential Information does not include any information that: (i) was already known to the Seller; (ii) is now or is later made known to the public through no default by Seller of its obligations under the Purchase Order, any other agreement between Seller and Buyer, or any other confidentiality obligation owed to Buyer; (iii) is disclosed to Seller by a third party under no obligation of confidentiality to Buyer; or (iv) is independently developed by Seller without reference to any Buyer Confidential Information. In the course of performance under the Purchase Order Seller may receive personal information that includes without limitation, business contact information, of customers and employees of Buyer (collectively “Personal Data”). In the event Seller receives any Personal Data under the Purchase Order, Seller shall protect Personal Data when transferring, using, and processing Personal Data as follows: Seller shall (a) provide notice about how Seller will protect and use Personal Data and provide, upon request, the affected individuals with appropriate options on how to receive such notices; (b) not transfer Personal Data to any third party without Buyer’s express prior written consent; (c) provide individuals with reasonable access to their Personal Data as requested by Buyer; (d) take all reasonable security precautions to protect Personal Data from loss, misuse and unauthorized access, disclosure, alteration and destruction; and (e) take all reasonable steps to ensure Personal Data is reliable for its intended use when Seller will be using or processing Personal Data or transferring to a third party that will be using or processing Personal Data.
11. Compliance with Law.
Seller represents and warrants that Seller is and will continue to comply with all laws and regulations applicable to the Purchase Order and the manufacture, sale, provision, and delivery of the Products ordered hereunder by Buyer, including without limitation, all laws and regulations governing: (i) the workplace/labor/employees; (ii) environmental safety; (iii) product and health safety; and (iv) the country of origin. Seller certifies that the Products do not require a license for export or re-export under U.S. export law or the laws of the country of origin of the Products, based upon the technology, composition, nature, or intended use of the Products. Seller shall notify Buyer in writing if any Products become subject to export and/or re-export control laws of the U.S. or the country of origin of the Products. In conformity with the U.S. Foreign Corrupt Practices Act (“FCPA”) and with Buyer’s established corporate policies regarding foreign business practices, Seller and its employees and agents shall not directly or indirectly make an offer, payment, promise to pay, or authorize payment, or offer a gift, promise to give, or authorize the giving of anything of value for the purpose of influencing an act or decision of an official of any government (including a decision not to act) or inducing such a person to use his or her influence to affect any such governmental act or decision in order to assist Buyer in obtaining, retaining or directing any business. Seller shall ensure that its employees and agents understand their obligations under the FCPA, and shall take such measures as may be necessary to ensure that its employees and agents comply with its requirements. Seller’s efforts in this regard shall include, at a minimum, providing formal training to its employees and agents regarding the FCPA. Upon Buyer’s request, Seller shall provide to Buyer written confirmation that it has conducted such training.
12. Indemnification.
Seller shall indemnify, defend and hold Buyer and its affiliates and their directors, officers, employees and agents harmless from and against any and all actions, claims, liabilities, costs, damages and expenses (including reasonable attorneys’ fees) arising out of, resulting from or caused by (i) any breach or alleged breach of any warranties made by Seller hereunder, (ii) any act or omission of Seller in the performance of the order, (iii) any negligent act or willful misconduct of Seller in the design, manufacture or supply of the Products, or (iv) from any defect or alleged defect of the Products or mislabeling of the Products. This indemnification shall be in addition to the warranty obligations of Seller. Seller warrants that the Products and the sale, lease, or use of the Products will not infringe any United States or foreign patent, trademarks, or copyrights. Seller agrees to defend, indemnify and save harmless Buyer, its successors, assigns, customers and users of its products from and against, all suits, at law or in equity, and any and all costs and expenses (including reasonable attorneys’ fees), liabilities or other losses arising from, or by reason of, any actual or claimed infringement of such patents, trademarks, or copyrights, except where the Products furnished hereunder by Seller are manufactured in accordance with designs, drawings or specifications furnished by Buyer. Seller shall give Buyer prompt written notice of any infringement claim.
13. Remedies and Notices.
The rights and remedies provided by Buyer herein shall be cumulative and in addition to any other rights and remedies provided by law, equity or the Uniform Commercial Code. Waiver of a breach of any provision of this order shall not constitute waiver of full compliance with such provision nor shall it be construed as a waiver of any other breach, right, remedy or provision. Upon any default or breach of this order by Seller, Buyer may, at its option, require Seller to transfer to Buyer all materials, goods, work in process, completed supplies, and specifications allocable to the canceled portion of this order and Buyer shall pay Seller the fair value of such items. All notices shall be given in writing and be personally delivered or sent by postage prepaid mail addressed to the parties at their addresses set forth in the Purchase Order or as otherwise designated to the other by written notice. If any provision herein is deemed unenforceable by a court of competent jurisdiction, the other provisions shall remain in full force and effect as if the unenforceable provision had not been included.
14. Governing Law.
The Purchase Order and these Term and Conditions shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to (i) its conflict of law provisions, and (ii) the applicability, if any, of the United Nations Convention on Contracts for the International Sale of Goods. Each party consents to, and agrees that each party is subject to, the exclusive jurisdiction of the state and federal courts of the Commonwealth of Massachusetts with respect to any actions for enforcement of or breach of the Purchase Order and these Term and Conditions.
15. Limitation of Liability.
IN NO EVENT SHALL BUYER BE LIABLE TO SELLER OR ANY THIRD PARTY FOR LOST PROFITS OR BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THE PURCHASE ORDER, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE). BUYER’S TOTAL AND CUMULATIVE LIABILITY ARISING UNDER OR IN CONNECTION WITH THE PURCHASE ORDER WHETHER TO SELLER OR A THIRD PARTY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY BUYER FOR THE PRODUCTS PURCHASED HEREUNDER.
16. Publicity.
Seller will not without Buyer’s prior written consent display or disclose the Products to any third party, use Buyer’s name, any of its logos, trade names, and trademarks, the names of any Buyer products, or otherwise publicly announce or comment on the existence or terms of the Purchase Order without Buyer’s prior written consent.