Purchase Order Terms & Conditions

Revision 002 October 30, 2014
  1. OFFER TO BUY. This order is an offer on the part of Buyer to purchase the supplies and/or services enumerated on the face hereof. This offer to buy shall remain open for a period of thirty (30) days only from date and must be accepted by Seller within that period to be binding on Buyer.
  2. ACCEPTANCE. This order shall be the exclusive agreement between the parties for the suppliers and/or services described subject to the following terms and conditions, when accepted (A) by acknowledgment, or (B) by commencement of performance, together with reasonable notice thereof. Additional or different terms proposed by Seller shall not be applicable, unless accepted in writing by Buyer. No change in, modification of, or revision of this order shall be valid unless in writing and signed by Buyer. Buyer shall not be responsible for Seller’s anticipation of Buyer’s requirements.
  3. CHANGES. Buyer shall have the right to make changes within the general scope of this order in any one or more of the following: drawings, designs or specifications where the supplies to be furnished are to be specifically manufactured for Buyer in accordance herewith; method of shipment or packaging; and/or place of delivery. If such change results in an increase or decrease in the cost or time required for the performance hereunder, adjustment shall be made in the purchase order price, delivery schedule, or both. Any claim for such adjustment shall be deemed waived by Seller unless asserted in writing within thirty (30) days after notice of the change. Nothing in this clause shall relieve Seller from proceeding without delay in the performance of this order as changed.
  4. LAWS AND REGULATIONS. Seller shall comply with all applicable federal, State of California and local laws and regulations. On invoices rendered against this order Seller shall certify that the supplies were produced in accordance with all applicable laws and orders issued there under.
  5. BUYER FURNISHED OR OWNED PROPERTY. Title to and the right of immediate possession of all tooling, materials or equipment furnished by Buyer under this order remains in Buyer. All such items shall be used only for the purpose of fulfilling Buyer’s order. Such items shall be kept in good condition and repair by Seller at its expense and disposed of only as Buyer shall direct. Seller shall be liable for the safekeeping and the preservation of all Buyer’s property in Seller’s possession.
  6. RESPONSIBILITY FOR SUPPLIES. Except as otherwise provided herein, title to supplies purchased under this order passes from Seller to Buyer at the destination point designated on the face of this order, regardless of the point of inspection. However, regardless of the passage of title, loss or damage discovered after transfer of title determined to be a result of faulty packaging or handling by Seller shall be Seller’s responsibility. Acceptance by Buyer shall be final only after completion of inspection. Seller shall bear all risks for rejected articles after notice of rejection except for damage or loss resulting from gross negligence of Buyer; and nothing herein shall limit any of Buyer’s rights under the warranty clause of this order. Seller shall be responsible for the supplies to be furnished hereunder until delivery and acceptance by Buyer.
  7. TIME AND DELIVERY. The supplies and/or services described on the face hereof shall be delivered pursuant to the delivery schedule set forth on the face hereof; or, in the even no delivery schedule has been, or is in the future, mutually agreed upon, the supplies and/or services described on the face hereof shall be delivered to Buyer within a reasonable time, as that term is defined by custom and practice.
  8. PACKING AND SHIPPING. Seller shall prepare all supplies for safe transportation and in conformance with common carrier classification requirements. Unless otherwise specified on the face of this order, all purchases are F.O.B. destination. Seller shall make no charge for boxing, coating or carting unless otherwise agreed to in writing by Buyer.
  9. TENDER OF DELIVERY OF SUPPLIES AND/OR SERVICES. Unless otherwise specified in this order, Seller shall tender delivery of supplies and/or services as specified herein at the point of destination specified on the face hereof. The time for tender of delivery must be at a reasonable hour, and if supplies, they must be kept available for a reasonable period of time to enable Buyer to take possession thereof.
  10. PAYMENT. Seller’s right to payment shall be contingent upon Buyer’s approval and acceptance of supplies delivered or services rendered. Payment of the stipulated price shall not be evidence of Buyer’s final acceptance of such supplies or services. Discount terms and payment of invoices will be based upon the date specified on this order for delivery of supplies or services or the actual delivery date of such supplies or services, whichever date is later. If no discount is offered, payment of invoices will be made within thirty (30) days after receipt and acceptance of supplies or completion and acceptance of services or thirty (30) days after the delivery date specified on the order, whichever is later.
  11. INSPECTION. The Articles may be inspected by Buyer and/or the Government or PneuDraulics customer 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. Buyer may base acceptance or rejection of any or all Articles on inspection by sampling. If, upon inspection, any of the Articles shall be found to be defective in material or workmanship, or otherwise not in conformity with the requirement of this order. Buyer may, in addition to its other rights, (a) require prompt correction or replacement thereof at Seller’s expense, including transportation charges, or (b) rework, or have reworked, any such Articles at Seller’s expense, for the purpose of conforming the Articles to contractual requirements, or (c) reject any such Articles and require the immediate removal thereof. Buyer to be repaid or credited the full invoice price therefore, plus transportation charges, or (d) cancel the contract in whole or in part under Section 17, hereof. From the time of notice of rejection of defective Articles upon inspection, or for a breach of warranty, risk of loss thereof shall be upon Seller until redelivery, if any, to Buyer.
  12. USE OF DESIGNS, DATA, ETC. Any patterns, designs, drawings, engineering data or technical or propriety information furnished and originated by Buyer is the property of Buyer and no other use, disclosure or reproduction of any part thereof may be made. Upon the completion or termination of this order or when requested by Buyer, Seller shall return all such items to Buyer or make such other disposition thereof as Buyer may direct or approve.
  13. INFRINGEMENT, INDEMNITY. For all supplies not manufactured in accordance with Buyer’s designs. Seller shall indemnify Buyer, its successors, assigns, agents and users of its products against loss, damage or liability, including costs and expenses which may be incurred on account of any suit, claim, judgment or demand involving infringement of any patent, trademark, trade name, rights or copyrights in the manufacture, use or disposition of any article or material supplied hereunder. Buyer shall give notice to Seller of any such suit, claim, judgment or demand within a reasonable time after Buyer has actual knowledge thereof.
  14. PRICES. Seller represents that the prices specified in this order are based on current pricing data and do not exceed the current selling price for the same or substantially similar supplies to any other purchaser, taking into account the quantity and schedule under consideration and that such prices include all applicable federal, state and local taxes in effect on the date of this order, except any sales or use tax payable at source.
  15. NOTICE OF LABOR DISPUTE OR OTHER SUPERVENING EVENT. Whenever an actual or potential labor dispute or any other supervening event or occurrence is delaying or threatens to delay the timely performance of this order, Seller shall immediately give notice thereof to Buyer. Upon the receipt of such notice, Buyer shall have the option either (a) to terminate and thereby discharge any unexecuted portion to this order, or (b) to modify this order by agreeing to take the quantity of supplies and/or services then available from Seller. Seller agrees to insert the substance of this clause including this sentence in any subcontract hereunder.
  16. ASSIGNMENT AND SUBCONTRACTING. Seller’s obligations, duties and performance hereunder may not be assigned, delegated or subcontracted in whole or in part nor may any assignment of any money due or to become due hereunder be made by Seller without, in each case, prior written consent of Buyer.
    1. For Default
      1. Buyer may terminate this purchase order, or any part thereof, by written notice of default to Seller under any of the following circumstances:
        1. If Seller fails to perform within the time specified.
        2. If Seller fails to comply with other provisions of this order and does not cure any such failure within a period of ten (10) days after receipt of notice from Buyer specifying such failure.
        3. If Seller becomes insolvent or makes a general assignment for the benefit of creditors or files or has filed against it a petition of bankruptcy or for reorganization, or pursues any other remedy under any other law relating to the relief for debtors or in the event a receiver is appointed for Seller’s property or business.
      2. In the event of such termination, Buyer may purchase or manufacture similar supplies and/or require Seller to transfer title and deliver to Buyer any and all property produced or procured by Seller under this order and Seller shall be liable to Buyer for any excess cost to Buyer.
    2. Buyer may terminate this order in whole or in part at any time by notice to Seller in writing. On receipt by Seller of such notice, Seller shall, to the extent specified therein, stop work hereunder and the placement of subcontracts, terminate work under subcontracts outstanding hereunder, and take any necessary action to protect property in Seller’s possession in which Buyer has or may acquire an interest. In such event, Buyer shall pay to Seller, without duplication the (1) amounts due for supplies delivered and accepted or services completed in accordance herewith prior to the effective date of termination; plus (2) actual costs incurred by Seller if property allocable or apportionable under recognized commercial accounting practices to the terminated portion of the contract, including liabilities to the subcontractors which are so allocable and excluding any charges for interest or material or parts which may be delivered to others; plus (3) a reasonable profit on work actually done by Seller prior to such termination; plus (4) the reasonable costs of settlement, provided that the total settlement shall not exceed the contract price and, provided further, that if it appears that Seller would have sustained a loss on the entire contract had it been completed, no profit shall be included or allowed and an appropriate adjustment shall be made reducing the amount of the settlement to reflect the indicated rate of loss. Such termination claim shall be submitted to Buyer within sixty (60) days after the effective date of the termination and any suit to enforce such a termination claim must be commenced within one year of Buyer giving written notice of termination. The remedies provided herein to Seller in the event Buyer unilaterally terminates this order by notice are the exclusive remedies of the Seller.
    3. Any termination by Buyer, whether for default or otherwise, shall be without prejudice to any claims for damages or other rights of Buyer against Seller.
    4. Buyer shall have the right to audit all elements of any termination claim and Seller shall make available to Buyer on request all books, records and paper relating thereto.
    5. Seller shall continue performance of this order to the extent not terminated. Any provisions for delivery or acceptance of the supplies in installments shall not make severable the obligations of Seller.
  18. WARRANTY. In addition to all other warranties expressed or implied in law, Seller warrants that the items delivered hereunder will conform to all applicable specifications, drawings, samples, symbols or other descriptions furnished by Buyer and will be merchantable, of good material and workmanship and free from defects for a minimum period of twenty-four (24) months after acceptance. In case any such item shall be defective or otherwise not in conformity herewith, Seller shall, at Buyer’s option and in addition to all other remedies of Buyer, either credit Buyer for any such nonconformity or defect or at Seller’s expense replace, repair, or correct any such article. Seller agrees to make all corrections to the satisfaction of Buyer. Should Buyer elect to accept items which do not conform to all specifications or other descriptions, payment shall be made at an equitable reduction in price. This warranty shall survive acceptance and run to Buyer, its successors, assigns, customers and users of its products.
  19. SUSPENSION. Seller shall suspend work hereunder for a period of up to ninety (90) days in accordance with notice thereof from Buyer and shall take all reasonable steps to minimize costs during the period of work stoppage. Equitable adjustment shall be made to the price, delivery schedule or other provisions affected by the suspension, provided that the claim for equitable adjustment is made within thirty (30) days after continuation.
  20. INDEMNITY AND INSURANCE. Seller shall indemnify and hold Buyer and its employees harmless from any property damage, personal injuries, or death arising out of Seller’s or its subcontractor’s work or performance hereunder, and shall procure and maintain insurance against such risks as Buyer shall request.
  21. NONWAIVER. No waiver of any provision or waiver of any failure to perform any provision of this order shall be effective unless consented to by Buyer in writing, nor shall such waiver constitute a waiver of any other provision or failure to perform.
  22. FEDERAL CONTRACT COMPLIANCE. All implementing rules and regulations of the Office of Federal Contract Compliance are incorporated herein by specific reference.
  23. EQUAL OPPORTUNITY EMPLOYER. Buyer is an equal opportunity employer. All federal EEO and affirmative action requirements in race, sex, religion, national origin, handicap and Veteran status, veterans or disabled veterans status as found in 41 CFR 60-1.4, 60-250.4 and 60-741.4 are herein incorporated by reference."
  24. EXPORT / ITAR REGULATIONS. Performance of this order may require access to export controlled information that is subject to export controls under 22 U.S.C 2751-2799 (Arms Export Control Act) and C.F.R. 120-130 (ITAR) or 50 U.S.C. 2401-2420 (Export Administration Act of 1979, as amended) and 15 C.F.R. 730-774 (EAR) and their successor and supplemental laws and regulations or regulations and orders administered by the Treasury Department’s Office of Foreign Assets Control (OFAC) (collectively, herein referred to as the "Export Regulations").
    1. Supplier hereby certifies it understands its obligations to comply with the International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations (EAR). Supplier, further certifies that if it engages in the selling or manufacturing (whether exporting or not) of defense articles or providing a defense service that it is registered with the U. S. Department of State, Directorate of Defense Trade Controls, as defined in 22 C.F.R. Part 122, Registration of Manufacturers and Exporters and that it maintains an effective compliance program.
    2. Supplier shall not re-transfer export-controlled information to any other non-U.S. person or entity (including Suppliers dual/3rd country national employees) without first complying with all the requirements of the applicable Export Regulations.
    3. Supplier is required to notify Buyer in writing prior to any re-transfer of controlled information or controlled hardware. No consent provided by the Buyer regarding the re-transfer relieves the Supplier of its obligations under the Export Regulations.
    4. Supplier 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 by the United States Government or the government of the Seller.
    5. Supplier agrees that no goods supplied under this purchase order are sourced from or originate with:
      1. a country or government subject to U.S. economic sanctions administered by the U.S. Department of Treasury or U.S. Department of State (hereinafter "Restricted Country");
      2. a Specially Designated National identified on the U.S. Department of Treasury's Specially Designated Nationals List, or any other U.S. government list restricting the acquisition of items from an entity or person located outside or inside the United States
      3. an entity or person that is owned or controlled by a Restricted Country or Restricted National; or
      4. a Restricted Country or Debarred Party under the International Traffic in Arms Regulations.

    The U.S. Government requirements and additional background, including lists of restricted or denied persons referenced in this clause are available at the following web links: www.treasury.gov/ofac; www.pmddtc.state.gov; www.state.gov/t/isn/c15231.htm

    Import Compliance

    Seller shall comply with all U.S. Customs laws and regulations (e.g., 19 C.F.R.) and all other U.S. regulations pertaining to the importation of goods into the U.S. for domestic orders issued to entities incorporated in the U.S. Seller will be responsible for the importation of goods into the U.S. including:

    • Act as the U.S. Importer of Record
    • Facilitate U.S. Customs Clearance
    • Payment of duty, taxes, and fees associated with the imported items

    Buyer assumes no responsibility for importation of goods procured outside the U.S. unless agreed to in writing.

    In accordance with section 304 of the Tariff Act of 1930, as amended, along with certain marking provisions of the Harmonized Tariff Schedule of the United States and as identified in the U.S. Code of Federal Regulations, 19 CFR §134.11, every article of foreign origin (or its container) imported into the United States shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or container) will permit, in such manner as to indicate to an ultimate purchaser in the United States the English name of the country of origin of the article, at the time of importation into the Customs territory of the United States. Goods imported into the United States must be marked unless any of the following apply:

    1. The goods are physically incapable of being marked or would be damaged by marking
    2. The imported goods are worth less than $200 U.S. dollars
    3. Identified in the "J-list" exceptions that covers a broad list of products, including cigars, buttons, nuts, bolts, and bearings, etc.
    4. Imported for use by the importer and not intended for sale in their imported form

    Articles not properly marked, may be subject to additional duties upon importation into the United States.

  25. CONFLICT MINERALS EXPECTATION. Suppliers are expected to ensure that parts and products supplied to Buyer are Democratic Republic of the Congo or an adjoining country (DRC) conflict-free (do not contain metals derived from "conflict minerals"; columbite-tantalite (tantalum), cassiterite (tin), gold, wolframite (tungsten), or their derivatives such that they directly or indirectly finance or benefit armed groups through mining or mineral trading in the DRC). Suppliers are to establish policies, due diligence frameworks, and management systems consistent with the Organization of Economic Cooperation and Development (OECD) Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas that are designed to accomplish this goal.
  26. COUNTERFEIT MATERIAL DISPOSITION. Any materials submitted to PneuDraulics against this order by the supplier that are determined by PneuDraulics to be counterfeit shall be forfeited by the supplier (rather than being returned to the supplier) at no cost to PneuDraulics. PneuDraulics shall be the sole judge of counterfeit status, and the supplier’s knowledge or lack of knowledge of the counterfeit status shall be irrelevant to the forfeiture. Intent or lack of intent on the part of the supplier to submit such materials shall likewise be irrelevant.