Terms and Conditions of SALE
1. Effects of Terms and Conditions of Sale
Except as otherwise agreed to by Lancer Systems, LP (“Seller”), in Seller’s sole discretion, this document shall be inoperative if a binding contract has already been formed on solely Seller’s terms of sale. These terms and conditions of sale (the “Terms of Sale”) supersedes all prior purchase orders negotiations, proposals, or communications between Seller and the buyer of the goods referred to herein (the “Buyer”) and, except as otherwise expressly provided by these Terms of Sale, contains the entire agreement of the parties and may not be amended or modified orally.
Any offer or proposal by Buyer is expressly limited to the terms, warranties, and conditions contained herein. Seller objects to and rejects to all terms, warranties or conditions contained in Buyer’s purchase order or other communication which are additional to, different from, or conflicting with the terms of these Terms of Sale. Any offer or proposal by Buyer for such additional, different or conflicting terms, warranties or conditions or any attempt by Buyer to vary in any degree, any of the terms, warranties or conditions of these Terms of Sale shall not operate as a rejection of these Terms of Sale unless such variances are in the description, quantity, price or delivery schedule of the goods quoted by Seller on or with respect to these Terms of Sale (the “Goods”) but shall be deemed a material alteration of the terms, warranties and conditions of these Terms of Sale, and these Terms of Sale shall be deemed accepted by the Buyer without said additional, different or conflicting terms, conditions and warranties. Neither the failure by Seller to object to a purchase order or any other communication from Buyer nor any research on, or development, manufacture, shipment or otherwise of, the Goods shall be deemed an acceptance by Seller of any terms, warranties, or conditions which are additional to, different from, or conflicting with the terms, warranties, and conditions contained in these Terms of Sale. Any of the following acts or omissions shall be deemed an effective mode of Buyer’s assent to and acceptance of these Terms of Sale: (i) Buyer’s failure to make written objection to Seller within five (5) business days after receipt by Buyer of these Terms of Sale; (ii) Seller’s commencement of work on the Goods; (iii) Seller’s shipment of the Goods; and (iv) Buyer’s acceptance or use of, or full or partial payment for, the Goods.
2. Price: Terms of Payment
Seller’s quoted price for the Goods (the “Purchase Price”) shall be exclusive of any and all taxes; custom duties; shipping; handling; packaging; boxing; charges for returnable or reusable containers and damaged and missing tooling; and penalties (collectively, referred to as “Additional Charges”). The Goods shall not be subject to discount unless Seller expressly and clearly provides to Buyer such discount in writing. The Purchase Price will apply to material scheduled by Seller for shipment within ninety (90) calendar days of this date. Goods which are scheduled by Seller for shipment later than ninety (90) calendar days after this date will be invoiced at the Seller’s price therefor at the time of shipment, which may be higher because of increased material, labor and/or other costs. If such price adjustment exceeds 15% of the previous price, Seller will notify Buyer at least thirty (30) calendar days prior to scheduled date of shipment, and Buyer may, within five (5) calendar days after such notification, cancel any portion of Buyer’s order to which such price adjustment applies, but Buyer shall remain liable for that portion which it does not so cancel. Except as otherwise provided by these Terms of Sale, the Buyer shall pay the full Purchase Price and Additional Charges within thirty (30) calendar days after the date of Seller’s invoice. Checks or remittances received from or for the account of Buyer may be applied against amounts owing by Buyer, without accord and satisfaction of Buyer’s liability, regardless of writings, legends or notations on such check or other instrument, remittance, writing, statement or document. If the outstanding amount of the Purchase Price and Additional Charges are not paid in full when due, Buyer shall in addition pay, from the due date until payment in full, (i) interest at the monthly rate of one and one half percent (1 1/2%) of the sum of the unpaid Purchase Price plus (ii) any increases in Additional Charges. Interest shall be compounded monthly. Seller may withhold any amounts due from future payments by Buyer. If, in Seller’s sole discretion, the financial condition of Buyer does not justify continuation of production or shipment on the terms specified herein, Seller, at its sole option, may cancel any completely or partially unfilled orders from Buyer or parts thereof and/or may demand immediate payment for all Goods delivered and/or full or partial payment in advance for all Goods not delivered. Notwithstanding any provision in these Terms of Sale to the contrary, Seller reserves the right in its sole reasonable discretion to modify the dates on which it sends invoices, shipping dates, payment due dates and notification dates.
3. Quantity Variations and Substitutions
Seller reserves the right to ship and Buyer agrees to accept and pay for at the agreed upon price per unit overruns or underruns of up to and including five percent (5%) of the actual quantity specified in Buyer’s order. Unless Buyer’s order shall specifically state otherwise, Seller may substitute for any of the goods specified in Buyer’s order, goods of like or greater quality which are functional equivalents.
4. Shipping and Risk of Loss
Except as otherwise expressly provided in writing by Seller, all Goods are shipped F.O.B. Seller’s plant, and Buyer shall pay the cost of any and all carriers and freight. Upon delivery of the Goods by Seller to the carrier for shipment to Buyer, all risk of loss, damage and other incidents of ownership shall immediately pass to Buyer, subject to all of Seller’s rights until paid in full. Unless complete shipping instructions are received from Buyer substantially before the shipping date, Seller reserves the right to use its best judgment in selecting appropriate means of shipment. Seller reserves the right to make partial shipments and to invoice Buyer therefor, such shipments and invoices to be covered by the terms and conditions contained herein. If shipments of any goods ordered are delayed by the Buyer, all Goods held by Seller shall be at the sole risk and expense of Buyer.
5. Delivery Charges
All transportation, insurance (if requested in writing by Buyer) and other delivery charges from Seller’s plant to Buyer stated hereon or herewith by Seller included in the price of the Goods described hereon represent estimated charges. If actual charges at the time or times of shipment are greater or lesser than any of the aforesaid charges, Buyer shall pay any increase and shall receive the benefit of any decrease. To the fullest extent legally permissible, Buyer shall pay all Federal, State, County and Municipal taxes, sales, excise or otherwise which Seller may be required to pay or collect upon or with reference to the sale, purchase, transportation, delivery, storage, use or consumption of the Goods now in effect or imposed at or prior to the time the Goods are delivered, such taxes to be added to the Purchase Price.
6. Taxes and Duties
To the fullest extent legally permissible, Buyer shall pay or reimburse Seller for all applicable U.S. and non-U.S., international, Federal, state and local taxes and customs duties, which Seller may be required to pay or collect and now in effect or imposed at or prior to the time the Goods are delivered, such taxes and duties to be in addition to the Purchase Price.
7. Security Interest
Until the Purchase Price and Additional Charges are paid in full: (a) Seller retains title to and Buyer grants Seller a security interest in the Goods together with all instructions and all parts, accessories, attachments and accessions now or hereafter physically separate from or installed in or affixed thereto; (b) Buyer shall execute financing statements on Seller’s request and irrevocably authorizes Seller to execute same on Buyer’s behalf; (c) Buyer shall keep the Goods in good repair and free from all
security interests, liens and encumbrances and shall assume all charges for storage and shall fully insure same, at its expense against loss from any cause with Seller made loss payee. Any such loss, destruction or damage shall not operate to relieve Buyer from the obligation to pay the Purchase Price and Additional Charges.
8. Force Majeure
Seller in Seller’s sole discretion may terminate, delay or suspend performance hereunder in whole or in part and shall not be liable for any direct, indirect, special, incidental or consequential liability, delay, damage or loss occasioned thereby because of force majeure, which shall include, without limitation, acts of God, fires, explosions, severe weather, flood, labor disputes, strikes, lockouts, boycotts, picketing or other industrial disturbances, riots, epidemics, quarantine restrictions, wars or police action, delays of carriers, failure, curtailment or delay or Seller’s operations, freight embargoes, governmental regulations, restrictions, controls, rationing or guidelines, voluntary or mandatory, legislative, executive or administrative, inability to obtain parts, equipment, inventory, raw materials, labor or any of the Goods at reasonable prices or for any other reason and all interruptions of business causalities, events or circumstances beyond the control of Seller. Buyer shall accept as full and complete performance of any contract resulting from these Terms of Sale delivery of such portion of the Goods as Seller determines it is able, under the circumstances, to deliver in accordance with these Terms of Sale, and Buyer shall be liable for such delivered portion.
9. Delivery Date
The delivery date set forth herein is approximate only, is not guaranteed and may be extended by Seller for a reasonable time if conditions, in Seller’s sole discretion, warrant. Seller shall in no event be liable for any direct, indirect, special, incidental or consequential damages resulting from failure to meet delivery schedules.
Buyer must present, in a clear, detailed and written form, claims for shortages or erroneous charges to Seller within five (5) business days after Buyer’s receipt of or access to the Goods, or such claims will not be allowed.
The warranties under these Terms of Sale extend to only (a) Seller’s expressly authorized distributors (“Distributors”) and (b) the original end user of the Goods (i) who acquires such Goods directly from Seller or directly from a Distributor and (ii) who acquires the Goods not for resale of the Goods themselves but for such end user’s own use or for such end user’s incorporation into a product which the end user manufactures (the “End User”). ANY GOODS ACQUIRED BY ANY PERSON OR ENTITY OTHER THAN A DISTRIBUTOR OR END USER ARE ACQUIRED ON AN ”AS-IS” BASIS “WITH ALL FAULTS” AND WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES OF SELLER. Seller shall not be responsible for expenses of removal, return or re-installation of any Goods. Seller in no way guarantees any quantities to Buyer. Buyer is solely liable for any losses and costs resulting from obsolescence or restocking of unused or returned Goods. SELLER IS NOT LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, WHETHER RESULTING FROM BREACH OF WARRANTY, NEGLIGENCE OR ANY OTHER REASON. THE WARRANTIES CONTAINED HEREIN ARE IN LIEU OF ALL OTHER WARRANTIES, AND SELLER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF CONDITION, DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INTERFERENCE, NON-INFRINGEMENT, ACCURACY, QUALITY, SYSTEMS INTEGRATION OR ANY OTHER MATTER. These warranty provisions may not be modified or altered except in a writing signed by an authorized officer of Seller. No action pursuant to this warranty may be brought more than one hundred and eighty (180) calendar days after the date of delivery of the allegedly defective Goods. Buyer’s sole remedy for any Goods which prove defective in design, material or workmanship, whether due to breach of warranty, Seller’s negligent acts or omissions or otherwise, is limited to repair or replacement of such Goods. Seller either will repair or will replace (such choice being in Seller’s sole discretion) without charge any Goods which prove defective in design, material or workmanship within one hundred and eighty (180) calendar days of delivery, provided that: (a) Buyer has acquired the Goods directly from Seller or directly from a Distributor; (b) Buyer gives clear, detailed and written notice of any alleged defect to Seller within one hundred and eighty (180) calendar days of the date of delivery; (c) Seller shall be given a reasonable opportunity to inspect the allegedly defective Goods and confirm that they are defective; and (d) such defect is not due wholly or in part to any of the following: (i) modification of the Goods by any person or entity other than Seller or Seller’s duly authorized representative, (ii) accident, fire, flood or other casualty, (iii) negligence, vandalism, use in violation of Seller’s instructions or abuse or misuse of the Goods, (iv) ordinary wear, tear or usage, or (v) other cause, similar or dissimilar, not directly or solely due to defective design, material or workmanship provided by Seller. Buyer shall communicate the Seller Warranty to all End Users and to all others, to whom Buyer delivers any products or otherwise transfers any Goods. Buyer acknowledges and agrees that the Seller Warranty shall be null and void as to any Goods which Buyer sells or otherwise transfers to any person, Seller or entity other than as set forth in this Section 11.
12. Modification and Default
Buyer may not cancel, terminate or modify, in whole or in part, any contract resulting herefrom except with the prior express written consent of Seller. Buyer’s obligations hereunder shall not be affected by any fire damage, destruction or other casualty to the premises where any of the Goods are to be located or installed. Any of the following, at Seller’s option, shall be a default by Buyer hereunder: (a) Buyer refused to accept any of the Goods ordered;
(b) Buyer breaches or fails to perform any of the other terms set forth herein (whether material or not); (c) any proceedings in liquidation, bankruptcy, reorganization, arrangement, debtor rehabilitation, creditor adjustment, or insolvency is commenced by or against Buyer; (d) Buyer makes an assignment for the benefit of creditors or enters into a composition agreement with all or some of Buyer’s creditors; (e) a judgment not adequately covered by insurance is recorded against Buyer; (f) Buyer ceases operations; (g) Seller reasonably deems itself insecure; (h) a trustee, receiver, conservator, liquidator or other judicial representative, similar or dissimilar, is appointed for Buyer or any of Buyer’s assets; (i) infringement by Buyer of any U.S. or non-U.S. patents, copyrights or trademarks resulting from Buyer’s use, possession, ownership or modification of the Goods; (j) death or injuries to persons and/or property damage resulting from Buyer’s use, possession, ownership or modification of the Goods; (k) dilution of any U.S. or non-U.S. trademarks resulting from Buyer’s use, possession, ownership or modification of the Goods; or (l) Seller’s reasonable belief that any of (a) through and including (k) have occurred, are occurring or will occur. After default by Buyer, Seller, in addition to all other remedies, may at its sole discretion, do one, all or any combination of the following: (i) at no cost or liability refuse shipment of all or part of the Goods and/or cancel Seller’s obligations under all or any part of any contract resulting herefrom, and/or (ii) (whether or not Seller cancels) require Buyer to indemnify, defend and hold Seller and Seller’s officers, directors, owners, employees and agents (collectively, referred to as “Agents”) harmless from and against any and all claims, suits, actions, damages, costs, liabilities, expenses and losses, including, without limitation, all Seller’s and its Agents’ attorney’s fees and court costs, other costs of investigating and litigating claims and Seller’s and its Agents’ reasonable lost profits resulting
directly or indirectly from, or in connection with, Buyer’s default; and/or (iii) enter on any premises where the Goods may be located and repossess and remove same without liability for any direct, indirect, incidental, consequential and/or special damage occasioned thereby (with Buyer indemnifying, defending and holding Seller and its Agents harmless from and against any and all such damage); and/or (iv) sell any of the Goods at public or private sale upon five (5) days’ prior written notice, which is agreed by Buyer to be commercially reasonable. Buyer shall continue performance of any part of any contract resulting from these Terms of Sale which is not cancelled.
13. Tooling, Equipment and Designs.
All equipment, dies, patterns, molds, gauges, taps, jigs, fixtures and other tools, and all designs, drawings, specifications, technical documents and other such material which are required produced or furnished by Seller pursuant to an order resulting herefrom (collectively, referred to as “Tooling”), as well any and all patents, copyrights, trademarks and other intellectual property rights in and to any Tooling, shall remain the sole property of Seller regardless of whether any charges are made for Tooling. Buyer may not sell, assign, or transfer in any manner at any time any right, title or interest in or to any Tooling. In any event, and regardless of ownership, Seller shall not be responsible (i) to obtain on its own, repair or replace any Tooling or (ii) to maintain any Tooling for more than three (3) years after the Buyer’s most recent purchase order.
Buyer shall not, without first obtaining Seller’s express written consent, disseminate the fact that Seller has furnished or has contracted to furnish Buyer the Goods covered hereby nor, except as is necessary for performance of these Terms of Sale, shall Buyer disclose any of the details connected with these Terms of Sale to third parties.
The parties agree that these Terms of Sale shall be governed by and construed and enforced in accordance with the substantive laws of the State of Pennsylvania applicable to contracts executed in and to be wholly performed in such State, except for its rules relating to the conflict of laws. BUYER HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE PENNSYLVANIA COURT OF APPROPIATE JURISDICTION IN ANY AND ALL ACTIONS AND PROCEEDINGS COMMENCED OR INSTITUTED BY BUYER WITH RESPECT TO THESE TERMS OF SALE OR UNDER ANY AGREEMENT OR UNDERTAKING BETWEEN THE PARTIES, AND IRREVOCABLY AGREES TO SERVICE OF PROCESS BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE ADDRESS OF BUYER AS SET FORTH HEREIN. BUYER HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN CONNECTION WITH ANY LITIGATION COMMENCED BY OR AGAINST IT WITH RESPECT TO THE RIGHTS AND OBLIGATIONS HEREUNDER OF ANY OF THE PARTIES TO THESE TERMS OF SALE.
16. Distributor Provisions
If Buyer is acting as Seller’s Distributor, then except as Seller expressly agrees in writing otherwise and notwithstanding anything above to the contrary:
- Buyer shall not be an exclusive distributor for any Goods;
- Buyer’s territory for sales (“Territory”) shall be designated by Seller in Seller’s sole discretion;
- Buyer shall not receive any discount;
- Buyer shall submit in writing to Seller net sales figures for the preceding month for Goods purchased from Seller and sold by Buyer (a “Sales Report”), which figures must be received by Seller by the fifteenth (15th) of the month or on the first (1st) business day thereafter. This Sales Report shall include number of items, the dollar value of those items and
the customers and locations to which those sales were made. Buyer shall also submit to Seller a copy of the invoice of sale for Goods sold in the preceding month verifying the Sales Report, which copy must be received by Seller within thirty (30) days after the end of the month;
- The Seller reserves the right to sell directly to customers located within the Territory when the customer orders the Goods to be delivered to their branches or subsidiaries located in the U.S. With respect to these types of sales, billed for by the Seller and paid for by customers, Buyer shall not be entitled to a sales commission;
- In addition to its other rights, Seller reserves the right, in its sole discretion and for any reason and at any time and from time to time to:
- • establish or change any prices, warranty terms, sales or shipment terms and conditions, or sales or other policies or practices either before or after shipment;
- • refuse to accept from Buyer any order or orders with respect to all or any of Seller’s Goods or refuse to fill any order or orders previously accepted from Buyer; and
- • discontinue or suspend manufacture of any of its Goods;
- Seller shall make a reasonable effort to give Buyer timely notice of any change in prices, sales, warranty or shipment terms, sales policies or practices, cancellations or changes in orders, and substitutions with respect to the Goods. In turn, Buyer shall promptly advise any of its affected customers in Buyer’s Territory of such matters and shall promptly advise Seller as to whether the change is acceptable to its affected customers;
- Buyer will use its best efforts to sell, market and promote the sale of the Goods in the Territory, obtain new customers therefore, and maintain existing customer relationships;
- Buyer shall not collect or receive any monies on behalf of Seller unless specifically authorized by Seller in writing;
- Buyer further agrees to:
- do all things necessary to diligently and faithfully procure orders for, and sales of, the Goods within the Territory;
- comply with all sales and other policies and practices of Seller;
- comply with Seller’s written instructions and policies concerning use and display of Seller’s corporate name and all trademarks or trade names associated with Seller or its Goods;
- maintain complete and accurate written records describing all sales and promotional activities engaged in by Buyer with respect to customers and prospective customers for the Goods or for any other products manufactured by Seller, including without limitation sales call reports, contact reports, customer inquiries, customer complaints and claims, prospect listings, prospect profiles, market reports, market updates, sales forecasts, copies of invoices, quotations, inquiries, sample requests and other data, information and Know-How which is pertinent to the sale and application of Seller’s Goods in the Territory, and furnish to Seller, upon request by Seller or in accordance with reporting schedules established from time to time by Seller, copies of all such records and materials;
- be responsible for and pay all costs of conducting Buyer’s business activities;
- maintain (a) automobile insurance policies which, in the aggregate, provide liability coverage of not less than One Million Dollars per occurrence or incident for damages to any person or property arising out of the operation of a motor vehicle by Buyer or any of its employees and (b)comprehensive products liability insurance policies which, in the aggregate, provide coverage with respect to the Goods of not less than One Million Dollars for damages to any person or property, and file with Seller, upon request by Seller, actual or memorandum copies of all such insurance policies or other documents satisfactory to Seller evidencing the existence of such insurance coverages; and
- indemnify Seller and hold Seller harmless from and against any loss, damage or liability including without limitation attorney’s fees which Seller suffers or incurs as a result of any actual or claimed negligence of Buyer or its employees or agents in connection with the performance of its or their duties hereunder, or any breach or default by Buyer of its duties or obligations hereunder, which indemnity and hold harmless agreement shall survive any termination of these Terms of Sale;
- Buyer’s distributorship (the “Distributorship”) shall continue until terminated in a manner provided herein. The Distributorship may be terminated at any time by either party, without cause, upon not less than sixty (60) days prior written notice to the other party. Furthermore, either party may terminate the Distributorship for cause, immediately upon written notice to the other party in the event:
- such other party ceases all or substantially all of its business operations, or
- such other party is in material breach or material default of any of its obligations under this agreement and does not fully cure or correct such breach or default within ten (10) days after receiving written notice of such breach or default, or
- such other party takes willful action which is, or is intended to be injurious or detrimental to the terminating party, or
- such other party engages in any improper act or omission resulting or intending to result in material gain, personal enrichment, or other personal benefit to such party at the expense or to the detriment of the terminating party, or
- such other party files a petition in bankruptcy or is adjudicated as a bankrupt, or
- such other party institutes or has instituted against him or it any procedure in bankruptcy court or elsewhere for reorganization or rearrangement of his or its financial affairs, or has a receiver of his or its assets or property appointed because of insolvency, or makes a general assignment for the benefit of creditors;
- If Buyer is an individual, the Distributorship shall terminate immediately upon the death of Buyer; and
- Upon any termination of the Distributorship by either party and for any reason, Seller may, but shall have no obligation to, repurchase from Buyer any Goods shipped to Buyer on or before the effective termination date, and may, but shall have no obligation to, ship any Goods to Buyer or to Buyer’s customers on or after the date upon which notice of termination is given.
17. General Provisions
- Buyer agrees to secure any license necessary to export the Goods from the U.S. to another country and warrants to Seller that Buyer will not export the Goods from the U.S. to another country without the necessary and appropriate license(s).
- Seller’s failure at any time to enforce any rights strictly in accordance with same shall not be construed as creating a waiver or modification of the specific terms and conditions hereof. Seller’s right and remedies are cumulative and not alternative. No waiver by Seller of any condition, or of the breach of any term, covenant, representation or warranty, contained in these Terms of Sale, whether by conduct or otherwise, in any one or more instances, shall be deemed or construed as a further or continuing waiver of that or any other condition or of the breach of any other term, covenant, representation or warranty set forth in these Terms of Sale. If any part hereof is adjudged invalid, illegal or unenforceable, the remainder will not be affected thereby.
- All materials, processes, supplies and/or services that become a part of the item(s) delivered by the Seller shall conform to Purchase Order, drawing(s) and specification(s) requirements. Seller’s system shall assure: Purchase order flowdown of applicable quality and technical requirement, suppliers capability to produce items and adequate methods of assuring compliance.
- All words used herein shall be construed to be of such gender and number as the circumstances require.
- Titles to sections are for convenience purpose only and do not form part of the agreement.
- Seller shall not be obligated to perform any term hereof if such performance might, in the opinion of Seller’s legal counsel, violate any governmental law, regulation or ordinance (U.S. or foreign, Federal state or local) and Seller shall not be liable for damages as a result of such nonperformance. Buyer intends to be legally bound hereby.
- From time to time, Seller may provide Buyer with Know-How (as defined below) which, in Seller’s sole opinion, is relevant to Buyer, including, but not limited to, all relevant engineering changes and current developments affecting the application of Seller’s Goods. “Know-How” means identification of customers, uses, marketing data and sales techniques relating to the sale of Seller’s Goods, including, but not limited to, invoices, quotations, proposals and recommendations. In addition, if Seller deems it reasonable and necessary, Seller may provide Buyer with technical consultation on customer problems, including material selection, designs, and participation in joint sales calls. Buyer shall not, directly or indirectly, communicate, disclose or divulge to any third party any Know-How or other information made available by Seller to Buyer without the prior written consent of Seller.
- Seller and Buyer expressly acknowledge and agree that Buyer is an independent contractor, and that except as otherwise stated herein Seller shall have no right to control or direct the manner in which Buyer performs its obligations and duties hereunder. Buyer shall not have the right or authority to create any obligation, liability or contract of any kind on behalf of Seller. Buyer shall pay when due all federal, state, city and local income taxes, unemployment taxes, and social security taxes applicable to its business operations, and Seller shall have no liability therefore. Neither party shall have any authority to bind the other party in any manner, and neither party shall be liable in any manner for the debts and liabilities of the other party. If Buyer is an individual, Buyer shall not be deemed an employee of Seller and he shall not participate in any pension plan, profit sharing plan, or welfare or benefit plan in which participation is limited to employees of Seller. These Terms of Sale shall not be construed to create an employment relationship or partnership, limited partnership, joint venture, association, agency or other similar business enterprise, organization or relationship between either Seller and Buyer, or between Seller and Buyer’s employees.
- Any notice required or permitted to be given shall be made in writing, and shall be deemed to be given if sent by registered or certified mail, postage prepaid, return receipt requested, or if personally delivered, or if sent by a nationally recognized overnight delivery service, or if sent by telecopy if confirmed as set forth above, to the parties’ respective addresses as set forth at the end of these Terms of Sale. Any party may from time to time change the address to which notices to him or it shall be given by giving notice of such address change in the manner provided for herein. Notices shall be deemed to be received either immediately upon personal delivery, or seventy-two (72) hours after deposit in the United States mail, or twenty-four (24) hours after transmission by any other method above specified.
- These Terms of Sale shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, personal representatives, administrators, successors and permitted assigns. Seller shall have the right to assign these Terms of Sale to any person or entity which purchases or succeeds to all or any portion of the business or assets of Seller. These Terms of Sale may be assigned by Buyer only with the written consent of Seller. Any attempted assignment of these Terms of Sale, any sale of stock of Buyer (if Buyer is a corporation), any change in control of Buyer or any change in the management of Buyer without the prior written consent of Seller shall constitute a material breach of these Terms of Sale.
- These Terms of Sale set forth all the promises, covenants, agreements, conditions and understandings between the parties hereto with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements and understandings, inducements or conditions pertaining thereto, express or implied, oral or written, and cannot be modified, altered, supplemented, terminated or amended except by a writing signed by both parties.
International Traffic in Arms Regulations
This part may be subject to United States Munitions List (USML) item, Section 121.1(h) and subject to ITAR requirements that can be found in Subchapter M, Title 22, Code of Federal Regulations, Parts 120 through 130 (22CFR 120-130). By acceptance of the product, customer agrees to full responsibility to remain in compliance with the above stated ITAR requirements with the further sale and distribution of products if applicable.
FM-PU-05 Rev 01
Terms and Conditions of Purchase
- Acceptance. Any acceptance of any offer by the seller (“Seller”) is limited to acceptance by Seller of all the additional and different terms and conditions contained herein from those in any quotation, proposal or other offer received from Lancer System, LP (“Buyer”) objects to and rejects all additional or different terms or conditions contained in Seller’s acknowledgement, sales order or confirmation of these purchase terms and conditions (the “Purchase Order”). Neither Buyer’s failure otherwise to object to Seller’s acknowledgement, sales order or confirmation hereof, nor the acceptance or use of Articles (defined below) hereunder, nor any other act or omission by Buyer, shall be deemed an acceptance of any additional or different terms or conditions from those contained herein. Any proposal by Seller or attempt by Seller to vary in any degree any of the terms or conditions of this Purchase Order shall not operate as a rejection of this Purchase Order unless such variances are in the terms of the description, quantity, price or delivery schedule of the Articles but shall be deemed a material alteration hereof, and this Purchase Order shall be deemed accepted by the Seller without said additional or different terms. If Seller has not otherwise accepted this Purchase Order, Seller, by commencing work, or notifying Buyer of its commencement of work or by shipping any Articles, shall be deemed to have accepted all the terms and conditions contained herein and no other terms or conditions.
- Price. All prices stated by Buyer on or with this Purchase Order shall (a) constitute the entire consideration to Seller for all articles sold to Buyer pursuant to the terms of this Purchase Order and all parts to and instructions for the assembly, use and care of such articles (collectively, referred to as “Articles”), services, labor, boxing, crating, packaging, shipping and handling, freight, duty drawback rights transferable from Seller to Buyer and warranties; and (b) be deemed to include all applicable U.S. and non-U.S., international, Federal, state, provincial and local taxes and customs duties, the amount of which taxes and duties shall be itemized separately on Seller’s Buyer shall not be liable for any interest or any late or penalty charges for failure to pay Seller’s invoices when due. If, during the term of this contract, (i) Seller offers like articles in similar or lesser quantities to other buyers at lower prices per unit, or (ii) the prevailing market price per unit for like articles offered in similar or lesser quantities is lower than that offered to Buyer, then the prices stated hereon shall be automatically amended to the lower price, effective the earliest date on which such lower price was offered. Any reduction in applicable freight rates, custom duties and taxes from those in force on the date of this Purchase Order, whether separately stated or not, shall be paid to Buyer or credited against the price of the Articles. Buyer’s payment or promise of payment for Articles shall not constitute acceptance thereof. Seller shall inform Buyer of the existence of any duty drawback rights transferable from Seller to Buyer and upon request, supply such documents as may be necessary for Buyer to acquire such rights. Seller shall credit against the price of the Articles or reimburse Buyer for any custom duties owed or paid by Buyer, for which drawback rights exist and which are not validly and promptly transferred by Seller to Buyer.
- Substitution. Without the prior express written approval of Buyer, Seller may not supply to Buyer articles which are alternatives to, substitutions for or like the articles that Buyer has ordered pursuant to this Purchase. Buyer shall have the right to inspect and reject any alternative, substitute or like articles before becoming liable or obligated in any manner for them.
- Product Changes.
(a) Seller shall not make any changes in material(s), software, design, manufacturing source(s), process(es) and tooling, that potentially affects the fit, form, or function of the item or items on this Purchase Order without the prior notification and approval of the Buyer. Production parts fabricated in advance of Buyer approval shall be at Seller’s risk.
(b) The Seller’s change control system shall assure the latest applicable drawings, specifications, technical requirements, Purchase Order information and changes thereto will be available at the time and place of acceptance of material and/or services.
(c) Buyer reserves the right to test the changed hardware in its system or by using simulators to verify the compatibility of changed hardware prior to accepting said hardware or changes. This includes full re-qualification if necessary.
- Cancellation/Termination for Convenience.
(a) Buyer may, by notice in writing, terminate this Purchase Order or work under this Purchase Order for convenience and without cause, in whole or in part, at any time, and such termination shall not constitute default. In the event of partial termination, Seller is not excused from performance of the non-terminated balance of work under the Purchase Order.
(b) In the event of termination for convenience by Buyer, Seller shall be reimbursed for actual, reasonable, substantiated and allocable costs, plus a reasonable profit for work performed to date of termination. Any termination settlement proposal shall be submitted to Buyer promptly, but no later than ninety (90) days from the effective date of the termination. In no event shall the amount of any settlement be in excess of the Purchase Order value. Buyer may take immediate possession of all work so performed upon written notice of termination to Seller.
- Cancellation/Termination for Default.
- Buyer may, by notice in writing, terminate this Purchase Order in whole or in part at any time for breach of any one or more of its terms, for failure to make progress so as to endanger performance of this Purchase Order, or failure to provide adequate assurance of future performance. In the event of partial termination, Seller is not excused from performance of the non-terminated balance of work under the Purchase Order.
(b) Buyer shall not be liable for any direct, indirect, special incidental, punitive or consequential damagtes or payment resulting from its cancellation of all or any part of this Purchase Order.
- Shipping and Risk of Loss. Notwithstanding any F.O.B. term to the contrary, Seller shall bear all riskof loss or damage until delivery to and acceptance by Buyer. Buyer’s count shall be conclusive on all shipments not accompanied by a packing slip. Excess Articles may be returned by Buyer at Seller’s expense. All Articles may, at Seller’s cost, be inspected by Buyer at any time or place, and such inspection shall not waive, diminish or otherwise affect any of Seller’s express or implied warranties and shall not constitute acceptance of any Articles. Buyer shall be deemed to have accepted Articles only after a reasonable time for discovery of defects, even if Buyer has previously inspected Articles.
- Counterfeit Parts & Mitigation. When invoked by the governing Purchase Order, Seller shall only purchase products to be delivered or incorporated as Work to Buyer directly from the Original Component Manufacturer (OCM)/ Original Equipment Maufacturer (OEM), or through an OCM/OEM-authorized distributor chain. Seller may use another source only if (i) the foregoing sources are unavilable, (ii) Seller’s inspection and other counterfeit risk mitigation processes will be employed to ensure the authenticity of the Work, and (iii) Seller obtains the advance written approval of Buyer.Seller shall maintain counterfeit risk mitigation processes in accordance with industry recognized standards and with any other specific requirements identified in this Contract.
- Supplier Control, Requirements Flow Down, & Behavior. All materials, processes, supplies and/or services that become a part of the item(s) delivered by the supplier shall conform to Purchase Order, drawing(s) and specification(s) requirements along with product safety. Supplier shall possess capability to produce items and adequate methods of assuring compliance. Seller shall be required to flow down and verify applicable quality and technical requirements of supplies/services they subcontract. Seller shall demonstrate and respect the moral principles of ethical behavior in the work place.
- Right of Access. All work, material and records may be subject to inspection and test by Buyer, its customer and applicable regulatory authorities at any place and time at any level of the supply chain. Buyer’s access to processes considered proprietary by the Seller will be by mutual agreement. If applicable, the Seller or its sub-tier suppliers, at any level of the supply chain, shall provide the necessary facilities, equipment and assistance for the safety and convenience of Buyer’s or its customer’s personnel in the performance of selected inspections and tests.
- First Article. When the Seller is manufacturing a production Buyer-part-numbered product for the first time, a First Article Inspection (FAI) is required unless noted otherwise on the Purchase Order. In addition to the top assembly, all subassemblies that are part of the top assembly shall be included in the FAI report. If the Seller is unsure if the Purchase Order is for production product, the Seller shall contact the Buyer for clarification.The Seller shall contact the Buyer seven (7) days prior to the commencement of the FAI. The FAI must be completed prior to product acceptance and shipment to the Buyer.Should any of the following conditions apply since the last build of a Buyer-part-numbered product, the Seller shall perform a full or partial FAI, as directed by the Buyer:
- A change in the design affecting fit, form or function of the part.
- A change in the manufacturing source(s), process(es), inspection method(s), location of manufacture, tooling or materials, that can potentially affect fit, form or function.
- A change in numerical control program or translation to another media that can potentially affect fir, form, or function.
- A natural or man-made event, which may affect the manufacturing process.
- A lapse in production for two years.
- Records of Objective Evidence/Record Retention. When the Seller is manufacturing a production Buyer-part-numbered product Seller shall maintain Quality records in accordance with AS9100C, ISO 9001:2008 or an equivalent Buyer-approved system. The records shall be retained for a period of not less than ten (10) years from the completion of the Purchase Order. The records shall include but not be limited to:
- Verifiable objective evidence of inspection and tests performed during execution of this Purchase Order, including nonconformance documentation.
- Test data records of all qualification and acceptance tests performed.
- Raw material and process certifications.
- Material Review Board (MRB) Reports
- Certification of personnel, as required by specification and/or contract.
- First Article Inspection reports.
These records shall be provided to the Buyer upon request.
- Audit/Quality Control.
(a) All material and workmanship shall be subject to inspection and test at all reasonable times and places by Buyer or Buyer’s customer before, during and after performance and delivery. Buyer may require Seller to repair, replace or reimburse the purchase price of rejected material or Buyer may accept any materials and upon discovery of nonconformance, may reject or keep and rework any such materials not so conforming. Cost of repair, rework, replacement, inspection, transportation, repackaging, and/or re-inspection by Buyer shall be at Seller’s expense. Buyer’s acceptance of work and services shall not be deemed to diminish Buyer’s rights or be final or binding on Buyer if latent defects, fraud, or misrepresentation on the part of Seller exists.
(b) If inspection and test are made on the premises of Seller or Seller’s lower-tier subcontractors, Seller shall furnish without additional charge all reasonable facilities, information and assistance necessary for the safe and convenient inspection and tests required by the inspectors in the performance of their duty. The foregoing provisions of this Article are supplementary to and not in lieu of the provisions of Section 13(a) above.
(c) Buyer’s failure to inspect does not relieve Seller of any responsibility to perform according to the terms of the Purchase Order.
- Notifications/Disclosures. The Seller’s system shall provide for timely reporting of nonconformities that may affect product already delivered. Notification to buyer shall include a clear description of the discrepancy, identification of all suspect parts (to include mfg. dates, serial numbers, quantities, etc.) and material affected by the deficiency, date(s) delivered, any information relating to the Root Cause/Corrective Action steps initiated to address the defective condition, and preventative measures taken to preclude recurrence of the process failure. Modifications of a disclosure (additions or deletions of data) requiring subsequent issuances shall be revision-controlled to provide definitive sequencing (i.e., Rev. ‘A’, ‘B’, etc).
- Warranties. In addition to all express warranties made by Seller to Buyer and all warranties implied by fact or law, Seller warrants as follows: that all Articles shall be merchantable, free from defect, new and the best of their respective kinds (unless otherwise specified) and of the highest quality, workmanship and material. Seller further warrants that: (1) the title conveyed in each and every sale shall be good and that its transfer is rightful; (2) each and every Article sold shall be delivered free from any security interest or other lien, charge, claim or encumbrance; (3) each and every Article sold shall be delivered free of the rightful claim of any third person by way of infringement of copyright, patent or trademark, (4) each and every Article sold shall be fit for the ordinary purposes for which products of that description are used, (5) each and every Article sold shall be adequately contained, packaged, and labeled, and conform to the promises and affirmations of fact made on the container and label, if any; and (6) each and every Article sold shall be fit for any particular purpose for which the Articles are required. Seller hereby provides any and all express and implied warranties that may arise from course of dealing or usage of trade. Furthermore, all Articles shall conform exactly to (i) samples, models, drawings and specifications which Buyer has provided to Seller and (ii) samples, models, drawings and specifications which Seller has provided to Buyer and which Buyer has approved. In addition, any and all express and implied warranties provided to Buyer hereunder extend to any person who may reasonably be expected to use, consume, or be affected by the Articles. In addition to all other remedies, failure of any Article to meet such standards may require immediate correction or replacement of such Article at Seller’s sole expense, including transportation and insurance costs to and from Seller. If Seller fails or refuses to make any correction and/or replacement as so required, Buyer may: (a) pursue all remedies provided under this Purchase Order, at law and in equity; and/or (b) reprocure any or all Articles or parts thereof and/or procure correction thereof, and Seller shall be liable for all costs of such reprocessing and/or correction, and/or (c) retain any of Article or parts thereof at a reduction in price equivalent to the decreased value thereof, as solely determined by Buyer. Buyer in no way guarantees any quantities to Seller, has no responsibility for inventories maintained by Seller and is not liable for any losses or costs resulting from obsolescence or restocking of unused or returned Articles.
- Indemnification and Insurance. Seller shall indemnify, defend and hold harmless Buyer, Buyer’s officers, directors, owners, employees and agents from and against any and all claims, suits, actions, damages, costs, liabilities, expenses and losses, including, without limitation, all attorney’s fees, court costs, all other costs of investigation and litigation and reasonable lost profits, (collectively, referred to as “Losses”) resulting directly or indirectly:(a) from any breach of any warranty, whether expressed or implied, including, without limitation, death or injuries to persons and/or property damage caused by defective materials or workmanship; (b) from infringement of U.S. or non-U.S. patents, copyrights or trademarks resulting from the use, possession or ownership of any Articles by Buyer; (c) from dilution of U.S. or non-U.S. trademarks resulting from the use, possession or ownership of any Article by Buyer; (d) from misappropriation of trade secrets; (e) from breach of confidential relationship; and (f) due to death or injuries to persons and/or property damage resulting directly or indirectly, from the acts or omissions of Seller, its employees, agents or contractors in the performance of this Purchase Order, whether or not negligent or amounting to a breach hereof. Seller shall defend any suit or threatened suit whose claims are within the scope hereof whether or not groundless. Seller agrees to obtain and maintain at its expense a policy or policies of general liability insurance (which shall include, without limitation, products liability coverage), with Seller’s endorsement naming Buyer as a named insured in the amount of $1,000,000.00 and in such companies and containing such other provisions which shall be satisfactory to Buyer, covering Articles sold to Buyer hereunder. All such policies shall provide that the coverage thereunder shall not be terminated without at least thirty (30) business days’ prior written notice to Buyer. In the event an injunction is obtained against use of the Articles, and in addition to any other remedies available to Buyer, Seller shall have the obligation to do any of the following, at no cost to Buyer: procure for Buyer the right to continue using such Articles; or replace the same with equivalent or better non-infringing goods; or modify the Articles, so that they become non- infringing, provided they perform in an equivalent or better manner.
- Work Performed on Premises of Buyer or Buyer’s Customers. If this Purchase Order includes any work or services to be performed by Seller on the premises of Buyer and/or Buyer’s customer(s), Seller shall perform those services as an independent contractor, with sole esponsibility for all persons employed in connection therewith, including without limitation, exclusive liability for the payment of all U.S. and foreign, Federal, state and local unemployment and disability insurance and all social security and/or other taxes and contributions payable in respect of such persons, from and against which Losses Seller agrees to indemnify, defend, exonerate and hold harmless Buyer. In performing said services, Seller shall give its best personal attention to such work and/or services, and perform same with the utmost skill and expeditiousness, comply with all applicable laws, maintain such insurance against such risks (including, without limitation, comprehensive general liability insurance, property damage insurance, comprehensive automobile liability insurance providing coverage for bodily injury and property damage, statutory workers’ compensation insurance and employers’ general liability insurance) in such amounts, on such terms and conditions, and with such carriers, as Buyer in its sole judgment shall deem advisable, said insurance to name Buyer as a named insured if requested by Buyer. Each such policy shall provide that the insurer waives all rights of subrogation against Buyer and its employees for any claim which may arise by reason of any payment under such policy. Seller shall provide thirty (30) business days’ written notice to Buyer prior to cancellation of or reduction of any kind in any such insurance. Prior to the start of any work or services or payment in connection with this Purchase Order, and in form and substance satisfactory to Buyer, Seller shall deliver to Buyer upon Buyer’s request evidence of such insurance and a surety bond indemnifying Buyer against any claims in connection with performance or non-performance of this Purchase Order and furnish to Buyer, on Buyer’s request, a waiver of liens and/or release of liens in form and substance satisfactory to Buyer. Before any payment under this Purchase Order shall be come due, Buyer, at its option, may require Seller to furnish satisfactory evidence of the payment of all accounts for labor and materials pertaining to this Purchase Order. Seller shall maintain adequate safety precautions and on completion shall leave the site “broom clean”. All warranties and remedies (including, without limitation, all indemnities) for the breach thereof contained herein shall apply to all work and/or services provided under this paragraph, whether or not such work and/or services are covered by the applicable Uniform Commercial Code.
- Default. Each of the following shall, at Buyer’s option, be an event of default hereof: (a) Seller fails to make delivery of the exact quantity of Articles or fails to perform the exact work or services at the exact time specified hereon; (b) Seller breaches or fails to perform (whether material or not) any of the warranties or other terms or conditions of this Purchase Order; or (c) Buyer reasonably deems itself insecure. On default by Seller, Buyer, in addition to all other remedies given at law and in equity, may at no cost or liability cancel its obligations under all or any part hereof and (whether or not Buyer cancels) may require Seller to indemnify, defend and hold harmless Buyer from all Losses, including, without limitation, all direct, indirect, special, incidental and consequential damages, costs of reprocurerment of Articles (including transportation and insurance charges) and all attorney’s fees and expenses and court costs, arising directly or indirectly from Seller’s default. Seller shall continue performance of any part hereof which is not cancelled.
- Force Majeure. Buyer may at any time suspend performance (including, without limitation, acceptance of Articles) and payment for a reasonable time, or terminate all or a portion of this Purchase Order because of a force majeure, including, without limitation, war, acts of God or the public enemy, fire, explosion, labor disputes, strikes, riot, flood, epidemics, quarantine restrictions, freight embargoes, severe weather, interruptions of Buyer’s operations, governmental action, or any other event or condition of like or different character beyond buyer’s reasonable control. Buyer shall not be subject to any liability direct, indirect, special, incidental or consequential, to Seller because of the foregoing. Seller shall continue performance of any portion hereof which is not so suspended or terminated and such suspension or termination shall not in any way curtail Buyer’s rights to pursue any remedies for Seller’s default.
- Purchase Order Changes.
(a) Buyer shall have the right by written order to suspend work or to make changes from time to time in the services to be rendered or the materials to be furnished by Seller hereunder or the delivery date. If such suspension or changes cause an increase or decrease in the cost of performance of this Purchase Order or in the time required for its performance, an equitable adjustment shall be negotiated promptly and the Purchase Order shall be modified in writing accordingly. Any claim by Seller for adjustment under this Section 20(a) must be asserted in writing within twenty (20) days from the date of receipt by Seller of notification of the change or suspension and shall be followed as soon as practicable with specification of the amount claimed and supporting cost figures. However, nothing herein shall excuse Seller from proceeding with this Purchase Order as changed pending resolution of the claim.
(b) Information, advice, approvals or instructions given by Buyer’s technical personnel or other representatives shall be deemed expressions of personal opinion only and shall not affect Buyer’s and Seller’s rights and obligations hereunder unless set forth in a writing which is signed by Buyer’s purchasing representative and which states it constitutes an amendment or change to this Purchase Order.
- Special Tooling. All special tooling (including, without limitation, all designs, tools, jigs, dies, molds, fixtures, templates, patterns and drawings) furnished to the Seller by the Buyer, or specifically paid for in full or in part by the Buyer, for use in the performance of this Purchase Order shall be and remain the property of the Buyer, shall be subject to removal upon the Buyer’s instruction and shall be used only in filling Buyer’s orders. All of such special tooling shall be held at the Seller’s risk, and unless Buyer has notified Seller to the contrary, shall be kept in first-class condition, shall be replaced by Seller when necessary at Seller’s sole cost and shall be kept insured by the Seller at the Seller’s expense while in its custody in an amount equal to the replacement cost thereof, with loss payable to the Buyer. Copies of policies or certificates of such insurance shall be furnished to Buyer on demand.
- Government Contracts. If this Purchase Order is for material to be used by Buyer in performance of a federal government contract, Seller shall comply with all laws and regulations applicable to it as a subcontractor or supplier under a federal government contract. If requested, Buyer will provide Seller with copies of the applicable government requirements.
- Equal Opportunity Clause. Unless this Purchase Order is otherwise exempt, Seller shall comply with the provisions of Executive Order 11246 and FAR 52.222-26 (Equal Opportunity); Executive Order 11701 and FAR 52.222-35 (Affirmative Action for Disabled Veterans and Veterans of the Vietnam Era); Executive Order 11758 and FAR 52.222-36 (Affirmative Action for Workers with Disabilities); and Executive Order 13201.
- Export/Import Controls.
(a) Seller shall control the disclosure of and access to technical data, information and other items received under this Purchase Order in accordance with U.S. export control laws and regulations, including but not limited to the International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations (EAR). Seller agrees that no technical data, information or other items provided by Buyer in connection with this Purchase Order shall be provided to any foreign persons or to a foreign entity, including without limitation, a foreign subsidiary of Seller, without the express written authorization of Buyer and Seller’s obtaining of the appropriate export license, technical assistance agreement or other requisite documentation for ITAR-controlled technical data or items. Seller shall indemnify Buyer for all liabilities, penalties, losses, damages, costs or expenses that may be imposed on or incurred by Buyer in connection with any violations of such laws and regulations by Seller.
- Seller shall immediately notify Buyer if it is or becomes listed on any Excluded or Denied Party List of an agency of the U.S. Government or its export privileges are denied, suspended or revoked.
- Should Seller’s products or services originate from a foreign location, those products may also be subject to the export control laws and regulations of the country in which the articles or services originate. Seller agrees to abide by all applicable export control laws and regulations of that originating country. Seller shall indemnify Buyer for all liabilities, penalties, losses, damages, costs or expenses that may be imposed on or incurred by Buyer in connection with any violations of such laws and regulations by Seller. Buyer shall be responsible for complying with any laws or regulations governing the importation of the articles into the United States of America.
(d) Buyer may be required to obtain information concerning citizenship or export status of Seller’s personnel. Seller agrees to provide such information as necessary and certifies the information to be true and correct.
- Conflict Minerals. For Purchase Orders of Goods or Services for which the Seller manufactures or contracts to manufacture products/services that contain Conflict Minerals, Seller warrants, in addition to all other warranties provided under this Purchase Order, that the Goods/ Services delivered hereunder are free from Conflict Materials that originated in the DRC.
- “Conflict Minerals” as used above, is defined herein as Gold, Tungsten (Wolframite), Tantalum (Columbit-Tantalite) and Tin (Cassiterite).
- The “DRC” as used above, is defined herein as the Democratic Republic of Congo, Central African Republic, Angola, Burundi, Rwanda, South Sudan, Tanzania, Uganda or Zambia.
For Purchase Orders of Goods/Services for which Conflict Minerals are necessary to the functionality or production of the Goods/Services, the Seller shall determine the country of origin of the Conflict Mineral(s) (where the materials were originally mined and processed) or whether the minerals originated from scrap or recycled sources. Seller must provide the following prior to shipment of the items upon request of Buyer:
- Country of Origin Inquiry (17 CFR 250 and 249B) documentation certifying that items are free of Conflict Minerals that have originated in the DRC.
- Traceability information on raw material sub-tier suppliers.
- To the extent an audit has been performed, results from any independent private-sector audit; certifying that such an audit was obtained, including the audit report as part of the Country of Origin Inguiry and identifying the auditor.
- Miscellaneous. Buyer’s purchase order number must appear on all invoices, correspondence, packages and bills of lading. Seller will mail bills of lading and shipping notice directly to destination on the day of shipment. Seller shall provide to Buyer, prior to the delivery of any Articles, appropriate Material Safety Data Sheets and/or Hazardous Material Data Sheets where applicable. Seller’s obligations hereunder shall be severable or divisible, notwithstanding the acceptance of, or payment for partial delivery or any authorization for installment deliveries. No delay in exercising or failure to exercise, any right or remedy by Buyer under this Purchase Order shall constitute a waiver of such right or remedy or of any other right or remedy (including without limitation, Buyer’s rights of cancellation). If any term of this Purchase Order shall be unenforceable, the remainder shall continue in full force and effect if not terminated by Buyer. All rights and remedies of Buyer hereunder shall be cumulative and not exclusive. Buyer shall not be liable to Seller for indirect, incidental, special or consequential damages of any sort in any conflict between the printed, typed, written and/or stamped provisions of this Purchase Order. Buyer shall have the right to make changes to this Purchase Order. Such changes shall include but not be limited to changes in Buyer’s drawings and specifications upon which the Purchase Order is based. Should any changes affect any prices contained herein or delivery time, Seller shall, before proceeding, notify Buyer of price changes and receive Buyer’s agreement thereto. No modification, amendment, recission, discharge, abandonment or waiver of this Purchase Order in whole or part (collectively, referred to as “Changes”) shall be binding on Buyer unless signed by an authorized representative of buyer. Any Changes not so authorized shall not be paid. This Purchase Order shall be governed by the laws of the State of Pennsylvania, USA and constitutes the entire understanding of the parties. No prior course of dealing between the parties and no usage of the trade shall be relevant to supplement or construe against Buyer any of the terms hereof. Seller consents to the exclusive jurisdiction of the Court of Common Pleas in Bucks County, Pennsylvania, USA and/or the United States District Court for the Eastern District of Pennsylvania, USA in any and all actions and proceedings arising hereunder and irrevocably agrees to service of process by certified mail, return receipt requested, at Seller’s principal place of business. Seller waives the right to a jury trial. Seller may not assign, subcontract, or delegate all or any part of this Purchase Order without the express prior written approval of Buyer. All works shall be construed to be of such number and gender as the circumstances require. No action may be brought by Seller after one (1) year of the date of accrual. Time is of the essence. Buyer shall be entitled at any time to set of any sums owing by Seller to Buyer against sums payable by Buyer or Buyer’s affiliates to Seller.
FM-PU-04 Rev 05