1. DEFINITIONS. As used herein, (i) “Buyer” means Eldex Corporation or an affiliate thereof; (ii) “Seller” means the entity identified on the Order for the Products and/or Services; (iii) “Products” means Seller’s products, materials, and equipment listed in an Order; (iv) “Services” means Seller’s services purchased performed by Seller listed in an Order; (v) “Quote” means any quotation, bid, or proposal for Products and/or Services made by Seller to Buyer; (vi) “Statement of Work” means the specification(s), requirements, and details related to the Products and/or Services issued by Buyer to Seller or otherwise agreed in writing between the Parties; and (vii) “Offer” means Buyer’s purchase order, or similar procurement instrument; (viii) “Order” is the accepted Offer that incorporate these Terms and Conditions. Buyer and Seller are sometimes referred to herein individually as a “Party” and collectively as the “Parties”.
2. ORDER. These terms and conditions apply to all Offers issued by Buyer to Seller. Upon Seller’s acceptance of Buyer’s Offer it becomes an Order, without change or amendment to the Offer. Buyer objects to and is not bound by any terms or conditions that differ from, add to, or modify the Offer or these Terms and Conditions, including in any form or in posted in any location. If Seller does not provide a written acceptance (email is sufficient), the Offer becomes an Order and shall be binding upon the Parties upon the earlier of Seller (i) commencing performance of the Order; or (ii) delivering any of the Products or performing any Services under Order. Seller is responsible for delivery of Products and/or performance of Services under Order. If Order includes a Statement of Work, Seller is responsible for meeting all requirements specified therein.
3. PRICES. All prices stated in an Order are firm and stated in United States Dollars. Seller shall not increase the invoiced amount more than what is stated in an Order and will only invoice for Product delivered or Services performed. Seller warrants that the prices in the Quote are the lowest prices charged by Seller to any other customer for substantially similar Products and Services under similar conditions. Seller shall apply the lower price to the Products and Services under an Order if the same is offered at a lower price pursuant to this Section.
4. INVOICES AND PAYMENT. Seller will issue invoices upon delivery of Products or completion of Services. Seller invoices shall identify Order number, item number(s), part number(s), description(s), and quantity invoiced. All other charges Buyer is to pay pursuant to the Order, will be itemized on the invoice, such as applicable taxes or any other charges. Buyer shall make payment to Seller within 30 days of receipt of a correct invoice for Products delivered to and accepted by Buyer.
5. TAXES. Buyer shall pay all applicable federal, state and local sales, use, excise, or other taxes that may be levied upon any of the Products and/or Services, provided Buyer shall not pay such taxes upon presentation of a reseller certificate. All taxes will be specifically identified and itemized separately in the invoice. Any amount of tax paid by Buyer that is subsequently refunded to Seller will be paid to Buyer no later than 30 days from receipt of such refund.
6. PACKAGING AND MARKING. Seller shall package and mark all Products in accordance with best industry practices and sufficiently protect Products against damage during transit. If Buyer requires special packaging and marking requirements it will be include in the Order. Prices are inclusive of the cost of packaging. Seller’s packing list must include, at a minimum, Order number, line item number(s), part number(s), description(s), and quantity shipped.
7. DELIVERY. Time of performance and delivery is of the essence. Seller will comply with the delivery date set forth in the Order. Seller shall be responsible for all damages of any kind incurred by Buyer that result from any delay of the delivery date. Seller will promptly notify Buyer if Seller is cannot or is reasonably like not to comply with the Order’s delivery date, including the reasons for the delay, actions take or to be taken to mitigate the delay and expected date for delivery. Seller will ship delayed Products via expedited or fastest means at Seller’s cost. Buyer retains all rights and remedies related to missed delivery dates and resulting default in law and in equity.
8. SHIPPING TERMS; TITLE AND RISK OF LOSS. All domestic shipments shall be delivered F.O.B. (all international shipments shall be delivered D.A.P) at the point of delivery stated in the Order. Seller shall bear risk of loss or damage to Products during transit, and title to Products shall not pass to Buyer until received at Buyer’s designated location in accordance with Order and accepted by Buyer. Delivery is complete upon acceptance of Products by Buyer. Shipments of Product in greater quantities than stated in the Order may be returned by Buyer, in its sole discretion, at Seller’s sole risk and expense.
9. INSPECTION. Buyer reserves the right to inspect all Products prior to shipment by Seller. Seller shall permit employees and/or representatives of Buyer and Buyer’s customer and regulatory authorities to have access to Seller’s facilities at all reasonable hours with reasonable space and assistance from Seller, or its authorized subcontractors if applicable. This inspection right includes the right for Buyer to inspect, test, and review work at any approved subcontractor’s premises. At the time of inspection, Seller shall make available to such representatives copies of all specifications, drawings, and other technical data applicable to the Products ordered. Notwithstanding such inspection, all Products shall be subject to final inspection and acceptance by Buyer upon receipt. Buyer’s inspection, or its lack of inspection, shall not affect any express or implied warranties or other rights or remedies hereunder. Seller shall provide a Certificate of Conformity with all deliveries certifying that Products delivered and/or Services performed meet all requirements of the Order and any Statement of Work thereunder. All nonconforming Products and materials designated as scrap shall be permanently marked and controlled as such until physically rendered unusable.
10. ACCEPTANCE. Payment for any Products and Services under the Order shall not constitute acceptance thereof. Buyer reserves the right to reject and refuse acceptance of Products that do not conform to the requirements, instructions, specifications, drawings, data, or warranties stated or referenced in the Order. Nonconforming Products shall be returned to Seller for full credit, repair, or replacement at Seller’s sole risk and expense, including transportation charges and Buyer will suspend payment of any invoice relating such nonconforming Products. Buyer’ acceptance of Products is not a waiver of Buyer’s right to reject and/or return Products which are subsequently found to not conform to the Order, or by reason of patent or latent defect, or other breach of warranty, or to make a claim for damages, including manufacturing costs, damage to material or articles caused by improper boxing, crating, or packing, or other damages. Such rights and remedies shall be in addition to any other remedies provided by law.
11. FORCE MAJEURE. Any delay or failure of either Party to perform its obligations under the Order shall be excused if such delay or failure is the result of an unforeseeable event or occurrence beyond the reasonable control of such Party, and without such Party’s fault or negligence including, but not limited to, acts of God, acts of government, terrorism, fires, floods, windstorms, explosions, riots, natural disasters, wars, sabotage, or court injunction (each a “Force Majeure Event”). If the Force Majeure Event is greater than 30 calendar days, Buyer may, in its sole discretion, terminate the Order without further liability except for Products already delivered and accepted by Buyer prior to the date of such termination.
12. WARRANTIES. All warranties of Seller, whether created expressly by law or in fact, are incorporated herein by reference, apply to the Order, and are supplemented by the following express warranties. For a period of 12 months from Buyer’s acceptance, or such other period as may be agreed
by the Parties in writing or specified in The Order (the “Warranty Period”), all Products and/or Services shall (i) strictly conform with any and all specifications, drawings, samples, or other descriptions referenced in and/or furnished with the Order; (ii) be merchantable, of Product design, material, and workmanship; (iii) be new and not contain used or reconditioned material; (iv) be free from defects; (v) be suitable for their intended purpose; (vi) not infringe upon or violate the legal or equitable rights of any third party or out of any license, franchise, patent, trademark, or other proprietary right, now or hereafter in effect; (vii) be free and clear of any security interests, liens or other encumbrances; and (viii) comply with all applicable laws and regulations. If Buyer determines there is a defect in the Products during the Warranty Period, Seller shall, at its sole expense and without delay, repair or replace the defective Products or, at Buyer’s sole option, refund to Buyer the price of the defective Products. Any and all repaired or replaced Products shall be covered by this warranty for a new period equal to the original Warranty Period. The forgoing warranties, and all other warranties, express or implied, shall survive delivery, inspection, acceptance and payment and shall extend to Buyer’s customers. The rights and remedies granted to Buyer under this Section are in addition to any other rights or remedies provided elsewhere in the Order or under law or in equity.
13. CHANGES. Buyer may at any time, by a written change order or similar instrument issued by Buyer, make changes within the general scope of the Order. Such changes may include changes to specifications, drawings, designs, or description of Services; method of shipment or packaging; reasonable adjustments in quantities or delivery schedules or both; and place of delivery. Seller shall comply promptly with such direction. If Buyer’s change order causes an increase or decrease in the cost of performance or in the time required for performance, an equitable adjustment may be made to the Order price and/or delivery schedule and the Order shall be modified in writing accordingly; provided Seller make such claim for adjustment at the time of the modification to the Order.
14. PRODUCT SUPPORT OBLIGATIONS. Seller shall maintain the ability to provide, and shall provide, product support for the Products which shall include, without limitation; (i) assuring that subcomponents and materials are available; (ii) maintaining tooling and other production capability; and (iii) reengineering components or systems to address obsolescence for a period at least 5 years after the last delivery under the Order. If Seller discontinues the production of any Products ordered by Buyer previously, Seller shall give Buyer at least 180 days’ prior written notice of such discontinuance. Seller shall accept last time buy Orders from Buyer without restriction on the quantity at no more than the price offered prior to the last time buy announcement. If required by Buyer, Seller will provide Buyer (or its appointed third party) free access rights to the intellectual property in the Products.
15. TERMINATION FOR CONVENIENCE. Buyer may cancel or terminate performance or work under the Order in whole or in part for any reason by providing written notice to Seller. Upon receipt of such notice, Seller shall stop work on the date of the notice and promptly advise Buyer of the quantities of completed Products as of the termination notice date. Buyer shall have the right to inspect and audit the records, facilities, work-in-process, and materials of Seller relating to The Order. Buyer shall pay the Order price for completed Products accepted by Buyer.
16. TERMINATION FOR DEFAULT. Buyer may, by written notice to Seller, terminate the Order for default in whole or in part (i) breach or default of the Order or these Terms and Conditions if not cured within 30 days of written notice thereof; (ii) Seller experiences any refusal, suspension, withdrawal, or revocation of a relevant quality or manufacturing approvals or certifications or changes the production process or materials in a manner that could create an inferior Product; or (iii) Seller is adjudicated bankrupt, files a petition for bankruptcy, makes an assignment for the benefit of creditors, or if an action under any law for the relief of debtors is taken. Seller shall be liable to Buyer for any excess costs for Buyer to acquire Products or Services from a third party for those Products or Services.
17. TOOLS, DIES, JIGS, FIXTURES, PATTERNS AND WORK PRODUCT. Seller shall to transfer title and deliver to Buyer, as directed by Buyer, any completed Products, partially completed Products, and materials, parts, tools, dies, jigs, fixtures, patterns, plans, drawing, information, work product, and contract rights (collectively referred to as “Product Materials” in this Section) that Seller has specifically produced or acquired for the terminated portion of the Order. All trade secrets and Confidential
Information conveyed by Buyer to Seller to enable Seller to perform the Order, and all Product Materials prepared or developed by Seller pursuant to the performance of the Order will, whether or not specified on the face hereof, be and become the property of Buyer, and shall not otherwise be used by Seller without Buyer’s express written consent. If Buyer furnishes material or equipment including, but not limited to, tools, jigs, designs, dies, molds, fixtures, test equipment, or other property owned or paid for or agreed to be paid for by Buyer (“Buyer Owned Property”), title thereto shall remain or vest in Buyer, and Seller shall label and identify all Buyer Owned Property as Buyer’s property. Buyer Owned Materials will be used only for performance of the Order. Seller shall assume all risk of loss or damage to Buyer Owned Materials while they are in the custody of Seller. Seller shall be responsible for any loss, damage, or destruction to such Buyer Owned Property.
18. SOFTWARE. Seller grants to Buyer, and all others acting on its behalf, a paid-up, non-exclusive, irrevocable worldwide license to any data or software (of any kind) delivered or provided under an Order, including a right to sublicense to its subcontractors, customers and their end-users, of all such data, including copyrighted data, to reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly, by or on behalf of Buyer for Buyer, its subcontractors’, customers’ or their end-users’ use or performance. To the extent there is software, firmware or middleware (“Licensed Material”) embedded in any Product either owned by Seller or a third party, Seller grants to Buyer, and has the right to grant to Buyer, and all others acting on its behalf, a paid-up, non- exclusive, irrevocable worldwide license to use the Licensed Material as part of the Product, including a right to sublicense to its subcontractors, customers and their end-users, of all such data, including copyrighted data, to distribute copies to the public, and perform publicly and display publicly, by or on behalf of Buyer for Buyer, its subcontractors’, customers’ or their end-users’ use or performance of the Product.
19. PROPRIETARY RIGHTS. All tangible and intangible property including, but not limited to, information or data of any description, drawings, computer software, know-how, documents, trademarks, or copyrights (“Buyer’s Intellectual Property”) provided by Buyer to Seller, or paid for by Buyer under the Order, shall be and remain the property of Buyer. Buyer hereby grants a limited, non-transferable, non-assignable, revocable license to Seller to use any such Buyer’s Intellectual Property solely for the purposes of performing the Order. Seller agrees to assign to Buyer any invention, improvement, discovery, ideas, works of authorship, or data, whether or not patentable, conceived or reduced to practice in the performance the Order by any person employed by or working under the direction of Seller, and Buyer shall own exclusively all rights thereto. All such intellectual property that is protectable by copyright shall be considered work(s) made for hire for Buyer where Buyer is deemed “first owner” status related to the work(s) under local copyright law where the work(s) was created. Seller agrees to grant to Buyer an exclusive, perpetual, royalty-free, irrevocable, transferable license for such intellectual property if necessary.
20. CONFIDENTIALITY. Buyer may disclose to Seller certain Confidential Information, as defined herein, to facilitate Seller’s performance of the Order. All Confidential Information and any other technical information provided by Buyer to Seller shall at all times be and remain the property of Buyer and shall only be used by Seller in connection with Seller’s performance of the Order. Seller shall return all copies of Confidential Information provided by Buyer upon completion of the Order. “Confidential Information”, as used herein, includes, but is not limited to, specifications, drawings, designs, technical data, data sheets, schematics, diagrams, configurations, business, financial, statistical, and commercial information, formulae, analyses, trade secrets, ideas, methods, processes, know-how, software, and computer programs. Seller hereby agrees that any Confidential Information disclosed by Buyer (i) shall be maintained in a secure location; (ii) shall not be copied without the prior written approval of Buyer; (iii) shall be used by Seller solely to facilitate performance of the Order; and (iv) shall only be disclosed to Seller’s employees on a need-to-know basis. Seller shall not disclose Buyer’s Confidential Information to any third parties including, but not limited to, Seller’s agents, consultants, vendors, suppliers, or subcontractors, without the prior written approval of Buyer. In the event Buyer provides Seller with written approval to disclose Confidential Information to a third party, Seller shall ensure all third parties
are bound by terms and conditions consistent with this Section prior to receiving such information. If it becomes necessary for Seller to disclose Buyer’s Confidential Information to a third party as a result of a requirement of law or regulation, Seller will provide prompt written notice to Buyer, if legally permissible, and will use its best efforts to assist Buyer in seeking a protective order or another appropriate remedy, and in all cases, Seller will furnish only that portion of the Confidential Information that is legally required to be disclosed. Seller shall return all copies of Confidential Information provided by Buyer upon completion of the Order or at any time upon Buyer’s request. The obligations of confidentiality and restrictions on the use and disclosure of Confidential Information specified in these terms and conditions do not apply to any information that (i) is lawfully and rightfully already in the possession of Seller without obligation of confidentiality at the time of receipt from Buyer; (ii) is independently developed by Seller without use or reference to the Confidential Information as evidenced by tangible evidence; (iii) appears in any printed publication or patent, or is in the public domain, except as a result of a breach of these terms and conditions by Seller; or (iv) is lawfully and rightfully received, free of restrictions, by Seller from a third party not known by Seller to be under any nondisclosure or confidentiality obligation or to have misappropriated or otherwise unlawfully obtained such information.
21. CYBER SECURITY. The Seller and each of its subsidiaries have taken all technical and organizational measures necessary to protect the information technology systems and data used in connection with the operation of the Seller’s business, including, without limitation, using reasonable efforts to establish, maintain, implement and comply with reasonable information technology, information security, cyber security and data protection controls, policies and procedures, including oversight, access controls, encryption, technological and physical safeguards and business continuity/disaster recovery and security plans that are designed to protect against and prevent breach, destruction, loss, unauthorized distribution, use, access, disablement, misappropriation or modification, or misuse of or relating to any information technology system or data used in connection with the operation of the Seller’s businesses.
22. PATENT. Seller agrees to indemnify Buyer against any and all losses and damages, including court costs and attorney’s fees, resulting from the bringing of a suit or proceeding, including any settlement or decree of judgment entered into, against Buyer, its parent, subsidiaries or affiliates, constituent companies, agents, customers, subcontractors, or suppliers for alleged infringement of any United States or foreign patent, copyright, or trademark, as well as for the alleged unfair competition resulting from similarity in design, trademark, or appearance of Products, by reason of the use or sale of any Products or processes furnished under the Order, except for Products manufactured or processes developed entirely from Buyer’s design. Seller agrees, upon receipt of notification, to promptly assume full responsibility for the defense of any such suit or proceeding. Buyer may be represented by and actively participate through its own counsel in any such suit or proceeding, if it so desires, at its own cost. Seller’s obligation hereunder shall survive acceptance of the Products or processes and payment by Buyer and expiration or completion of the Order.
23. GENERAL INDEMNIFICATION. Seller agrees to indemnify, defend, and hold harmless Buyer, its officers, directors, employees, and representatives (the “Buyer Parties”) from and against any and all liabilities, losses, expenses, liens, claims, demands, and causes of action (i) for death, personal injury, or property damage arising from any negligent act or omission of Seller in the performance of the Order and (ii) arising out of or due to a material breach of the Order or these Terms and Conditions.
25. COMPLIANCE WITH LAW. Seller warrants and represents that the provision and shipment of Products and/or the provision of Services or work to be performed by Seller under the Order are in compliance with all applicable federal, state, and local laws, orders, rules, ordinances, and regulations including. Sellers that furnish any materials identified on any governmental agency’s list of hazardous substances must furnish a Material Safety Data Sheet (MSDS) with the delivery of the material in a form and manner that conforms with the requirements of such governmental agency. Seller warrants and represents that it has and shall maintain all registrations, licenses and permits required for the performance of the Order. Seller warrants and represents that it has not made or solicited, and shall not make or solicit, kickbacks in violation of anti-kickback (including, without limitation United States Foreign Corrupt Practices Act (FCPA)) and anticorruption laws, regulations and policies of the home country of Seller, and/or the anti-kickback and anticorruption laws, regulations and policies of any other country with jurisdiction over the activities in the performance of the Order.
26. EXPORT COMPLIANCE. Seller represents and warrants Seller will comply with all decrees, statutes, laws, legislation, rules, and regulations which govern export, re- export, or otherwise pertain to the export controls of the United States and any other country in which the Products are manufactured, transferred, sold, shipped, or exported in the shipment of Products, provision of Services, and delivery and use of technical information under the Order. Seller hereby agrees to 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.
27. INSURANCE. Seller will maintain insurance of the type and amount that is industry standard for a party providing similar Products and Services. Upon request, Seller will provide Buyer with certificates of insurance demonstrating such insurance coverage.
28. GOVERNING LAW. The Order, including these Terms and Conditions, is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or related to the Order or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of California, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Neither (i) the United Nations Convention on Contracts for the International Sale of Products; (ii) the 1974 Convention on the Limitation Period in Contracts for the International Sale of Products (hereinafter referred to as the “1974 Convention”); nor (iii) the Protocol Amending the 1974 Convention held at Vienna, Austria, on April 11, 1980, apply in any manner to the interpretation or enforcement of the Order.
29. NOTICES. All notices, permissions, and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, or (iii) the first business day after sending by email (provided email shall not be sufficient for notices for legal claims and indemnifiable claims). Notices to each Party shall be addressed to addresses set forth in the Order or as otherwise provided by written notice from one Party to the other Party. Email addresses may be designated on the Order.
30. ASSIGNMENT AND SUBCONTRACTING.r any of its obligations thereunder without Buyer’s written consent, and any violation of this requirement shall be void and of no effect. Seller shall not subcontract any portion of the Order or the performance thereof to any third party without Buyer’s written consent. In the event Buyer provides such authorization, the subcontractor will be bound by all obligations herein, including adherence to all export control requirements and Seller will remain liable for all acts or omissions of such subcontractor.
31. REMEDIES. All remedies hereunder shall be cumulative and in addition to any other or further remedies provided by law or equity. Seller shall pay all Buyer’s costs and expenses, including attorney’s fees, incurred by Buyer in exercising any of its rights or remedies hereunder or enforcing any of the terms or conditions hereof. Seller shall indemnify and hold Buyer harmless from and against all liability, loss, consequential and incidental damages,
and expenses resulting from the breach of any warranty, or resulting from any other act or omission by Seller, its agents, or employees, while in the performance hereof.
32. WAIVER. The failure by Buyer to enforce any provision of the Order, including these Terms and Conditions, will not constitute a waiver of future enforcement of that or any other provision.
33. SEVERABILITY. If any term, condition, or provision herein is invalid, ineffective, or unenforceable under present or future laws, then the remainder of the terms, conditions, and provisions shall remain in full force and effect, and shall in no way be affected, impaired, or invalidated.
34. HEADINGS. The headings used herein are for reference purposes only and shall not affect the meaning or interpretation of any term, condition, or provision herein.
35. SURVIVAL. All obligations of Seller hereunder shall survive acceptance of and/or payment for the Products. Further, any Section or provision herein which contemplates performance or observance subsequent to any termination or expiration of an Order, or which by its nature should survive, shall survive any termination or expiration of the Order and continue in full force and effect.
36. RELATIONSHIP OF THE PARTIES. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
37. NO THIRD PARTY BENEFICIARIES. There are no third party beneficiaries for any Order or related to these Terms and Conditions.
38. ORDER OF PRECEDENCE. The following order of precedence shall apply in the event of an inconsistency within the Order and its related documents, as applicable: (i) the Order; (ii) these Terms and Conditions; and (iii) the Statement of Work. Any inconsistencies between any documents must be clarified and agreed with Buyer.
39. ENTIRE AGREEMENT. The Order, which includes these Terms and Conditions, contain the complete understanding and agreement of the Parties and supersedes all prior or contemporaneous agreements or understandings, oral or written, relating to the subject matter herein. Any waiver, modification or amendment of any provision of an Order, including these Terms and Conditions, will be effective only if in writing and signed by duly authorized representatives of the Parties.