All supplier-initiated obsolescence changes require 365 day or 1 year notification prior to implementation. RoHS compliance required for all products ordered. It is the suppliers responsibility to verify latest revision of all specifications identified on this PO. Any questions should be directed to the buyer noted on this PO.
This purchase order is expressly limited to the terms and conditions set forth herein. No proposal, acknowledgment, delivery receipt or other document forwarded by Seller to FM INDUSTRIES® (hereinafter called Buyer) containing terms or conditions other than those specified herein will be binding on Buyer and no contract shall exist except as herein provided. This purchase order shall become a binding contract upon Seller’s acceptance by any lawful means, including but not limited to Seller’s (i) written acceptance, (ii) delivery of any conforming goods or services, (iii) beginning of requested performance, or (iv) acceptance of any payment under this purchase order. This purchase order constitutes the entire agreement between the parties and shall not be affected in any way for any reason (including, without limitation, trade usage, past practice or prior agreement or dealings) not expressly set forth herein. Seller may not perform under reservation.
PRICE AND PAYMENT
Seller shall furnish the goods or services ordered in accordance with the prices stated on the face hereof.
Payment terms will be computed from the date of final acceptance of the goods or services purchased hereunder or from the date of receipt by Buyer of a correct invoice or voucher, whichever is later. Payment shall be deemed to be made, including for the purpose of earning any discount, on the mailing or delivery date, whichever comes first, of Buyer’s payment.
Time is of the essence. Delivery shall be strictly in accordance with the schedule set forth in this order. Seller shall notify Buyer immediately when Seller has knowledge of any real or potential delay in delivery, but no such notice shall affect the rights of Buyer hereunder. Seller agrees to absorb the cost of premium transportation resulting from delayed performance. Buyer reserves the right to cancel this order in whole or in part if Seller fails to make deliveries in accordance with the terms hereof. Furthermore, Seller agrees to pay to Buyer any penalty and damages imposed upon or incurred by Buyer for failure of Seller to deliver goods or services on such delivery date. Seller shall be liable for all excess transportation charges or costs resulting from failure or neglect to follow and meet Buyer’s routing instructions or delivery schedules. Unless otherwise agreed in writing, Seller shall not make commitments for material or production in excess of the amount or in advance of the time necessary to meet Buyer’s delivery schedule. It is Seller’s responsibility to comply with this schedule, but not to anticipate Buyer’s requirements. No delivery shall be made prior to the date(s) shown unless Buyer has given prior written consent. Goods shipped to Buyer in advance of schedule may be returned to Seller at Seller’s expense.
Buyer will pay only for maximum quantities ordered. Overshipments will be held at Seller’s risk and expense for a reasonable time awaiting shipping instructions. Return shipping charges for over shipped quantities will be at Seller’s expense.
PACKING AND SHIPMENT
Unless otherwise specified, all goods shall be boxed, crated or stored, packed or packaged, marked and otherwise prepared for shipment in a manner which is (1) in compliance to the written requirements provided by the Buyer (2) in accordance with good commercial practice, (3) acceptable to common carriers for shipment at the lowest applicable rate and in accordance with I.C.C. regulations and (4) adequate to ensure safe arrival of the goods at the designated destination. Seller shall mark each and every package with necessary lifting, handling, bill of lading and other shipping information, purchase order number(s), contents of package by item number or Buyer’s part number(s), date of shipment and the names of the consignee and consignor. Loss of, or damage to any goods not protected by the aforementioned manner shall be borne by Seller. No charges will be paid by Buyer for any purpose, including, without limitation, for packaging, boxing or cartage unless specified on the face hereof.
Seller warrants that all goods or services delivered hereunder (a) will conform to the design and specifications and to drawings, samples and or data as set forth or referred to herein or other descriptions referred to in this order, (b) will conform strictly to the requirements of the order, (c) will be merchantable and free from defects in material and workmanship, (d) will be fit for the use and purposes intended by Buyer if such use and purpose is disclosed by Buyer to Seller, and (e) will be free from all liens and title encumbrances. Such warranties shall survive any inspection, delivery, acceptance or payment by Buyer of or for the goods or services, for a period of one year following the date of inspection, delivery, acceptance or payment, whichever occurs last. All warranties referred to herein shall be in addition to warranties provided or implied by law or any warranty which Seller offers to any other of its customers, including the U.S. Government, for the same type or kind and similar quantity of goods or services purchased hereunder, which benefit Buyer. All warranties of Seller herein shall extend to and include Buyer’s customer(s). Seller’s obligation upon breach of warranty shall include, at the option of Buyer, (i) refunding the purchase price of the defective good or service, (ii) replacing, repairing or correcting any defective good or service, (iii) reimbursing Buyer for any incidental, special or consequential damages sustained by Buyer as a result of any breach of warranty, and (iv) any other legal remedies available to Buyer. Seller shall promptly reimburse Buyer for all costs and expenses of handling, inspection and return of defective goods or goods that do not otherwise comply with the warranties contained herein. Seller expressly assumes all risk of loss or damage to goods returned by Buyer while the same are in transit.
Buyer shall have the right to inspect and test the goods either at Seller’s place of manufacture or distribution destination or any combination thereof. Notwithstanding prior payment or inspection by Buyer, all shipments of goods or services rendered hereunder shall be subject to inspection by and approval of Buyer after arrival of such goods at the destination specified on the face hereof or after such services have been rendered. Acceptance of goods or services shall not occur until final inspection by Buyer has been completed.
REJECTED SHIPMENTS AND PURCHASER’S REMEDIES
If the goods shipped or to be shipped or services rendered hereunder are rejected, in whole or in part, by Buyer by reason of defect in material or workmanship or Seller’s failure to comply with any of the terms, conditions, requirements or specifications contained herein, Buyer, after so notifying Seller in writing, may either (a) reject them without correction, (b) require their correction, (c) accept them with an adjustment in price, (d) return the entire shipment or the rejected portion of such goods or services to Seller at Seller’s expense for full credit and replacement, (e) hold the entire shipment or the rejected portion of such goods or services for such disposal as Seller shall indicate, without invalidating the remainder of this purchase order, or (f) return the entire shipment or the rejected portion of such goods or services to Seller at Seller’s expense for full credit and cancel this purchase order for any undelivered balance(s) of such goods or services.
Defective goods to be returned to Seller shall be returned freight collect. Replacement goods shall be sent freight prepaid from Seller, who will absorb the burden of premium transportation, when the defective or replacement goods place critical time or delivery schedule constraints on Buyer. If goods shipped or to be shipped or services rendered are rejected, as herein above provided, Buyer may, as it deems commercially practicable, purchase like goods elsewhere and charge Seller with any loss or damage, either direct or indirect, sustained by Buyer (including, but not limited to, any difference between the price paid by Buyer for such like goods or services and the price specified on the face hereof) plus all costs of collecting the same (including, but not limited to, attorney’s fees and court costs).
By written order, signed by Buyer’s authorized representative, and only by such written order, Buyer may order work suspension or make changes in quantities, drawings, designs, specifications, place of delivery or delivery schedules, methods of shipment or packaging, and goods and services specified hereunder. If any such change causes an increase or decrease in the price of the work to be completed, goods to be furnished or services to be rendered or the time of performance thereof, Seller shall make a written claim within 15 days from the date of Buyer’s notification and the amount of any price adjustment shall be equitably adjusted in writing by Buyer within 30 days after the date of the change order. Nothing in this section shall excuse Seller from proceeding immediately under terms of this purchase order as changed. Seller shall not substitute other materials or revise specifications without the prior written consent of Buyer. Changes made by Seller without a properly authorized change notice to this order shall be at the sole risk of the Seller.
Buyer may terminate, cancel or suspend the work to be performed hereunder, in whole or in part at any time without cause by written notice to Seller. Such notice shall state the extent and effective date of such termination, cancellation or suspension and, upon the receipt of such notice, Seller shall comply with the directions pertaining to work stoppage hereunder and the placement of further orders or subcontracts hereunder. The parties shall thereupon employ their best efforts to agree by negotiation, within three months, upon the amounts of reimbursement, if any, to be paid to Seller for each termination, cancellation or suspension. Termination, cancellation or suspension under this provision shall not be deemed a breach of contract. The provisions of this paragraph shall not limit or affect the right of Buyer to terminate this order for cause and shall not apply to a termination with cause. Seller shall mitigate its claims arising from termination, cancellation or suspension to the maximum extent, and in any event Buyer’s liability for such claims shall not exceed the lesser of fair market value or actual costs of raw materials, work in progress materials and finished goods materials where Seller can demonstrate were necessary to meet specified delivery schedules based on Seller’s standard, published or normal lead time and cannot be diverted to other uses. No claims against Buyer shall be asserted or honored for loss of expected profits, or for any consequential or incidental damages due to termination, cancellation or suspension.
RESPONSIBILITY AND INDEMNIFICATION
All work to be performed by Seller hereunder and all goods or services to be furnished or rendered shall be performed or rendered entirely at the risk of the Seller and Seller shall defend, indemnify and hold harmless Buyer, its affiliates, including its parent corporation, their divisions, officers, directors, agents, servants, representatives and employees, respectively, from and against any and all loss (including, without limitation, loss of use), liability, damage, claims, demands, actions or proceedings and all costs and expenses (including, without limitation, attorneys fees of whatever nature on account of any and all damages to or loss or destruction of any property (including property of Buyer), or injury or death of any person (including, without limitation, employees of Buyer)) arising directly or indirectly out of or in connection with the performance of work, furnishing of goods or rendering of services by Seller hereunder. Without limiting the generality of the foregoing, Seller agrees to indemnify and hold Buyer harmless from and against all claims and liens of any and all persons based upon the furnishings of labor or materials in connection with the goods sold or services rendered by Seller hereunder. Seller shall maintain insurance coverage satisfactory to Buyer to cover the above and upon request shall furnish appropriate evidence of such insurance. Notwithstanding any prior inspections, and irrespective of the F.O.B. point named herein, Seller shall bear all risk of loss, damage, or destruction to the goods called for hereunder until final acceptance by Buyer. Further, Seller shall also bear the same risks with respect to any goods rejected by Buyer provided, however, that in either case, Buyer shall be responsible for any loss occasioned by the gross negligence or intentional misconduct of its employees acting within the scope of their employment.
Any and all jigs, fixtures, molds, patterns, special gauges, special tapes, special test equipment, manufacturing aids, or other special equipment, or any replacements thereof, or any materials affixed or attached thereto (hereinafter called special tooling) at any time furnished to Seller or paid for by Buyer, or the cost of which or any charge or allowance to cover any depreciation or amortization thereof that is included in providing the price specified in this order, or paid for separately by Buyer, or which is based upon any design or process confidential or proprietary to Buyer, shall be and remain the sole property of Buyer. Each item of special tooling shall be plainly marked and adequately identified by Seller as property of FM INDUSTRIES®, and shall be safely stored apart from Seller’s property. Special tooling, while in Seller’s custody, possession or control shall be kept in good physical condition and shall be replaced by Seller and Seller shall bear all risk of loss thereof and damage thereto, normal wear and tear expected. Special tooling shall be insured by and at the expense of Seller against all risk of loss or damage in an amount equal to the full replacement value with loss payable to Buyer, and Seller will forward proper evidence of such insurance to Buyer upon request. Buyer shall be entitled to sole and exclusive possession of any and all special tooling upon demand, if and when Buyer requests possession. Seller shall prepare such special tooling for shipment and shall deliver same to Buyer at Buyer’s expense. Seller shall not directly or indirectly use any special tooling paid for by Buyer to or for the benefit of a third party, nor shall Seller ever permit the use of any such tooling so that it accrues to the benefit of any competitor of Buyer or to the detriment of Buyer in any way. Seller agrees not to mortgage, pledge, sell, lease or otherwise encumber, dispose of or subject to a lien or security interest, any special tooling which is the subject of or covered by this order.
SUBCONTRACTING AND ASSIGNMENT
No subcontracting shall be made by Seller with any other party for furnishing any of the completed or substantially completed articles, spare parts, or work herein contracted for without Buyer’s prior written approval. No right or obligation under this order (including the right to receive monies due hereunder) shall be assigned (including, but not limited to, assignment by operation of law) by Seller without the prior written consent of Buyer, and any purported assignment without such consent shall be void. Buyer may assign this order at any time if such assignment is considered necessary to Buyer in connection with a sale of Buyer’s assets or a transfer of its obligations or to the Government.
Seller (a) warrants that the goods furnished hereunder do not infringe any United States or foreign patent, trademark, copyright or other intellectual property right, (b) will defend any suit that may arise in respect thereof, and (c) will defend, indemnify and hold Buyer and its customers harmless from and against all loss which Buyer may incur (including, but not limited to, attorney’s fees and court costs) by reason of the assertion by any party of infringement or violation of such party’s patent, trademark, copyright or other rights with respect to the goods furnished hereunder, whether by reason of Buyer’s purchase, use, sale or otherwise. The foregoing is in addition to any remedies Buyer has for damages caused by the infringement.
DEFAULT OF SELLER
- Buyer may, by giving notice of default to Seller, cancel or terminate the whole or any part of this purchase order
- If Seller fails to make delivery of the goods or to perform the work or services within the time specified herein or any extension thereof granted by Buyer, or
- If Seller fails to perform or comply with any other provision of this purchase order, or so fails to make progress or to prosecute the work as to endanger the timely performance of this purchase order, and in either of these two circumstances does not cure such failure or provide adequate assurance of due performance within a period of 10 days after receipt of notice from Buyer specifying such failure, or
- If Seller otherwise fails to comply with this purchase order, or
- If any petition in bankruptcy is filed by or against the Seller; in the event Seller is ordered or adjudged bankrupt, upon the insolvency or commencement of the liquidation of Seller, upon the appointment of a receive for all or a substantial part of Seller’s assets; upon the admission of Seller to the benefit of any procedure for the settlement of its debts, or upon the seizure of attachment of all or a substantial part of the assets of Seller by any judicial or governmental procedure.
- In the event that Buyer terminates this purchase order in whole or in part for Seller’s default and whether or not Buyer has in fact terminated all or only a part of this order, Buyer, in addition to recovering so much of the price as has been paid, may procure, upon such terms and in such manner as Buyer may deem appropriate, goods, work or services similar to those so terminated, and Seller shall be liable to Buyer for any costs in excess of the purchase price for such similar items, work of services, and Seller shall, in addition, be liable to Buyer for any costs in excess of the purchase price for such similar items, work or services, and Seller shall, in addition, be liable to Buyer for any incidental and consequential damages sustained or incurred by Buyer as a result thereof (but less any costs or expenses saved by Buyer in consequence of the Seller’s breach). If Buyer terminates this purchase order as provided in this clause, Buyer may require Seller to transfer title and deliver to Buyer (a) any completed supplies and (b) such partially completed supplies and other materials as seller has specifically produced or acquired for such part of this purchase order as has been terminated. In all events the Seller shall continue the performance of this purchase order to extent not terminated under the provision of this paragraph. In addition to, and not limited by, any other rights of Buyer hereunder, upon any rightful rejection, Buyer shall have a security interest in any goods in its possession or control to secure any payment obligations of Seller hereunder. No cancellation charges or other damages shall be payable by Buyer for goods or services terminated hereunder which are not delivered within the time specified herein or within any extension thereof granted by Buyer.
- In the event of any breach or default by Seller hereunder, Seller shall, on demand by Buyer, pay Buyer’s costs (including, without limitation, attorney’s fees) incurred in enforcing its rights and remedies as provided for herein, in addition to any other amounts due hereunder. ADVERTISING Seller shall not, without first obtaining the written consent of Buyer, in any manner advertise, publish or disclose the fact that Seller has contracted to sell Buyer the goods purchased hereunder.
Seller hereby agrees that all information contained in documents, drawings, publications, specifications, schedules and the like received from Buyer for the performance of this purchase order is received in confidence and is the proprietary property of Buyer and that such information will not be transmitted, reproduced, used or disclosed to any person or organization by Seller (except as may be necessary for the performance of work required to be done under this order) without the express written approval of Buyer. Such information shall promptly be returned to Buyer at Buyer’s request upon completion of this purchase order.
COMPLIANCE WITH LAWS AND REGULATIONS
Seller warrants that it will comply with all Federal, state and local laws and regulations, and all orders and regulations of the Executive and other departments, agencies or instrumentalities of the United States Government applicable to the work to be performed, the goods to be furnished or the services to be rendered hereunder. Award of this purchase order is specifically subject to Seller’s compliance with (a) Section 202 of Executive Order No. 11246, as amended; (b) the Occupational Safety and Health Act of 1970; (c) Robinson Patman Act of 1936, as amended, 15 U.S.C. Section 13; (d) the Walsh Healy Public Contracts Act, and (e) Section 12 of the Fair Labor Standards Act, as amended, whenever applicable.
No change or modification of the terms hereof shall have force or effect unless made by a member of Buyer’s Purchasing Department in writing specifically referencing this purchase order. Failure of Buyer to require Seller’s strict performance of or authorization by Buyer permitting Seller to deviate from any term, condition or specification set forth in this purchase order, or exercise any election or option provided herein, shall not be construed as a waiver of Buyer’s rights to require strict performance of the same or any other item condition, or specification in the future, nor in any way affect the validity of this agreement or any part thereof.
This purchase order shall be governed by, subject to, construed and all disputes hereunder shall be settled in accordance with the laws of the State of California.
RIGHTS OF BUYER
Buyer retains the right to renegotiate prices and adjust shipping schedules and specifications
If, by reason of fire, earthquake, flood, explosion, accident, labor strike, act of God, war or terrorism, voluntary or involuntary compliance with any law, order, regulation, or demand of any governmental agency or authority, buyer is unable to perform its obligations hereunder, or performance by Buyer hereunder has been made commercially impracticable by the occurrence of a contingency the nonoccurrence of which was a basic assumption on which this purchase order was issued, Buyer may, by giving written notice to Seller:
- Cancel this purchase order in whole or in part as to any undelivered portion of such goods or unrendered portion of such services, or
- Suspend, in whole or in part, deliveries of goods or the rendering of services during the continuance of and to the extent of such cause, Seller’s remedies for Force Majeure shall be specified in Section 2615 of the Uniform Commercial Code. The Supplier acknowledges that FM Industries Product is of U.S. origin technology and is governed by the U.S. Department of Commerce, Bureau of Industry and Security, subject to the Export Administration Regulations and that the Supplier will not export, re-export, divert, or disclose, directly or indirectly, FM Industries Products without complying strictly with the export control laws of the U.S. Department of Commerce, Bureau of Industry and Security, subject to the Export Administration Regulations including, without limitation, obtaining prior approval, as applicable. The Supplier further acknowledges and agrees that this includes ensuring that any subcontracted suppliers, if applicable, are not listed in any U.S. Government restricted party lists. The Supplier further acknowledges and agrees to indemnify FM INDUSTRIES® against, and hold it harmless from, any cost, loss, damage, or liability (including reasonable attorney’s fees) arising from or related to the failure of the Supplier to comply with its obligations with these terms.