Acceptance of Offer:
In no event may an Order be construed as an acceptance by Buyer of any offer to sell, quotation. or proposal. Any reference herein to Seller’s offer to sell, quotation, or proposal is solely for the goods or services contained therein to the extent that such description or specifications do not conflict with the description and specifications contained herein. An Order shall be deemed accepted by the Seller’s acknowledging receipt of the Order, by Seller’s commencement of services or work on the goods, or by Seller’s shipment of goods; whichever occurs first. However, if Buyer does not receive written acknowledgement of acceptance within fourteen (14) days after the date of the Order, Buyer may terminate this Order whether or not performance has commenced without any cost by mailing notice of termination to Seller within twenty-one (21) days after the date of the Order. In no event shall any separate acknowledgment and/or acceptance signed by Seller constitute acceptance hereof. Seller acknowledges and agrees that any provision printed or otherwise contained in any acknowledgment, acceptance, invoice, shipper, or other document from Seller inconsistent with or in addition to the terms and conditions herein stated, and/or any alteration to this Order, shall have no force or effect, and Seller acknowledges and agrees that any such additional or different provision in any document or any such alteration to an Order shall not constitute any part of the contract of purchase and sale, but shall be deemed rejected by Buyer without need of further notice of rejection. Any terms and conditions on the face of the Order shall prevail in the event of any inconsistency between them and the terms and conditions set forth below. Acceptance or rejection by Buyer of any additional or different terms or conditions .shall not constitute an acceptance of any other additional term or condition unless expressly agreed to in writing by Buyer.
In the event of any conflict among the provisions of this order, the following order of precedence shall apply in interpreting this order. (1) Provisions on the face of this order, (2) Buyers Special Conditions, (3) These General Terms and Conditions, (4) other documents ( such as specifications and drawings ) that are incorporated by reference in the order.
Terms Comprising Agreement:
The terms and conditions contained herein shall be binding upon Seller. The contract documents collectively comprising the Order Include the Order, all terms appearing herein and all things specifically incorporated by reference or physically attached thereto. Any specifications, drawings, notes, instructions, engineering notices, or technical data referred to in the order shall be deemed to be incorporated herein by reference as if fully set forth. If any discrepancies or questions arise, the Seller shall refer to Buyer for a decision, instructions and/or interpretation. The Order supersedes and cancels any written or verbal agreements hereto made and constitutes the entire agreement between the parties. An Order may not be modified except in writing signed by both parties hereto. Failure of either party to enforce any of its rights hereunder shall not constitute a waiver of such rights or any other rights hereunder.
Prices recorded in the order are not subject to increase unless otherwise agreed to by the parties in writing. No additional amounts shall be chargeable to Buyer because of taxes or excises, presently or hereafter levied on Seller. If the price is not recorded on the face of an Order, the Seller’s price shall not be higher than last quoted or last charged to Buyer, unless otherwise agreed in writing. Payment terms are net forty-five (45) days from the date of receipt of Seller’s invoice unless indicated otherwise on the face of this order.
Delivery / Freight Charges:
Seller acknowledges that Buyer’s production schedules are based upon its agreement that goods or services will be delivered by Seller to Buyer by the date specified on the face of the Order. The acceptance of late or defective deliveries shall not be deemed a waiver by Buyer of its right to subsequently cancel all or a part of an Order, or to refuse to accept further deliveries and to hold the Seller liable for breach. Unless otherwise stipulated on the face of the order, goods covered by an order shall be shipped “F.O.B. Destination” and title to such goods shall pass to Buyer upon receipt of such. Any unauthorized shipment, which will result in excess transportation charges, must be fully paid by Seller. Time is of the essence of an order, and if delivery of goods or rendering of services is not completed by the time promised, Buyer reserves the right, without liability and in addition to its other rights and remedies to terminate the Order by notice effective when received by Seller as to goods or services not yet rendered and to purchase substitute goods or services elsewhere and charge Seller with any loss incurred. The goods must be delivered, if necessary, by premium expedited, pre-paid and at Seller’s expense to meet schedule deadlines stated herein. There shall be no delay or change in delivery time without a written amendment to the Order. Sellers failure to meet delivery schedules without the prior written consent of Buyer shall be grounds for termination of the order.
Inspection/Acceptance of Goods and Services:
Goods and Services delivered (whether paid for or not) are subject to inspection, testing, and approval by Buyer before final acceptance. Signature on a shipper or similar documents acknowledging receipt does not constitute acceptance of goods or services. Regarding goods or services that are a component of or are to be incorporated into, or related to any machine, tooling, product, or other materials of Buyer, acceptance of Sellers goods or services does not occur until final inspection, testing and acceptance of quality.
Buyer shall have the right to make, from time to time, changes to one or more of the following: (1) quantities; (2) drawings, designs or specifications; (3) method of shipment or packing; (4) place of delivery, inspection, or acceptance; (5) delivery schedules; (6) amount of Buyer and/or Government furnished property. Immediately upon learning of any modifications, Seller shall notify Buyer of any proposed increases or decreases in costs or time required for performance as a result of such changes. If Buyer and Seller agree that an equitable adjustment in price or other terms is appropriate as a result of a modification, the adjustment shall be agreed upon in a written amendment to the Order. No price increase will be enforceable unless agreed to in writing by Buyer. Any claim by Seller for adjustment this clause must be asserted by the Seller within thirty (30) days from the date of receipt by Seller of such notification of change. Failure of the parties to agree upon any adjustment to be made under this clause shall not excuse Seller from proceeding with this Order as changed.
A. Seller warrants to Buyer, its successors, assigns, customers, and users of goods sold by Buyer that all goods provided hereunder shall be (1) merchantable; (2) free from defects in material and workmanship; (3) with regard to goods designed by Seller, free from defects in design; (4) free from liens or encumbrances on title; and (5) fit for Buyer’s particular purpose. Delivery, inspection, test, acceptance or use of or payment for the goods furnished hereunder shall not affect Seller’s obligation under this warranty and all other warranties, express or implied, shall survive delivery, inspection, test, acceptance, payment, and use. When notified of such nonconformity by Buyer, Seller agrees to correct defects in or replace any goods not conforming to the foregoing warranty promptly and within the time indicated by Buyer in such notice, without expense to Buyer, provided Buyer elects to provide Seller with the opportunity to do so. Deliveries of corrected or replaced goods shall be accompanied by a written notice specifying that such goods are corrections or replacements. Seller shall reimburse Buyer for any direct and/or consequential expenses or damages incurred by Buyer regardless of the nature of such expenses or damages as a result of or relating to Seller’s failure to comply with (1)-(5) above including but not limited to rework, removal and reinstallation costs, withholds, and field service costs. In the event that Seller fails to correct defects in or replace nonconforming goods promptly, Buyer, after reasonable notice to Seller. shall have the right to correct or replace such goods and charge Seller for the costs incurred by Buyer in doing so. Such rights shall include, without limitation, Buyers right to deduct or set-off. B. If services are to be provided by Seller hereunder, Seller warrants to Buyer that such services have been performed or prepared in a professional and workmanlike manner and in compliance with Buyer’s instructions or other requirements of the Order.
Title to Drawings and Specifications:
Buyer shall at all times have title to all drawings, samples, models, specifications, and proprietary information furnished by Buyer to Seller and intended for use in connection with an Order; it being understood that such information is being disclosed in confidence upon the condition that it is not to be reproduced or copied or used for furnishing information or equipment to others, or for any other purpose other than the performance of Seller’s obligations under the Order. Seller shall use such drawings, proto-types, models, samples, specifications and proprietary information only in connection with the Order and shall not disclose such drawings, proto-types, samples, specifications and proprietary information to any person, firm, entity or corporation other than Buyer or Seller’s employees, subcontractors (with written approval in advance by Buyer), or government inspectors. Upon Buyer’s request at the completion of the order (or sooner if the Order is terminated or canceled in whole or in part), Seller shall promptly return all drawings, samples, specifications and proprietary information to Buyer.
Seller shall keep confidential drawings, specifications, technical information and data furnished by Buyer and shall not disclose such information except as required for the efficient performance of this Order. Seller shall return all such information and all copies thereof to Buyer upon Buyer’s request.
Assignment and Subcontracting:
A. Seller shall not delegate or assign this Order or any interest therein without Buyer’s written consent, and any attempted delegation or assignment in violation of this provision shall be void.
B. Notwithstanding the foregoing, any amounts due or to become due thereunder may be assigned by Seller, provided that such assignment shall not be binding upon the Buyer unless and until the assignment agreement is received by Buyer.
C. Seller shall not procure or contract for the procurement of any item covered by this Order in completed or substantially completed form without first securing the written approval of the Buyer,
A. Seller shall indemnify, hold harmless and defend Buyer of, from and against any and all damages, claims, losses, expenses (Including attorney’s fees) and liabilities, including, but not limited to, property damage and bodily Injury, including death, arising out of, related to or incident to the performance of an Order or any act or omission of Seller, its agents, employees or subcontractors with respect to the Order, unless any liability was due to the sole negligence of Buyer. Seller and all subcontractors shall protect, indemnify, defend, and hold harmless Buyer from and against any and all loss, cost, damage, expense, claims, or legal actions, whether valid or otherwise, arising out of the bodily injury, sickness, or disease (including death resulting at any time there from) which may be sustained or claimed by any person or persons and the damage or destruction of any property, Including the loss of use thereof, arising out of or related to a performance of any work in connection with an Order, including any extra work assigned to Seller and its subcontractors in connection therewith, based upon any act or omission, negligent, or otherwise, of Seller, or any of its employees, agents, servants, or subcontractors, and their respective employees, agents, or servants. Seller and its subcontractors shall at their own cost and expense, defend any such claims and any suit, action, or proceeding which may be commenced as described above, and Seller and its subcontractors shall pay any and all expense, Including but not limited to, costs, attorney fees, and settlement expenses which may be incurred therein,
B. Seller and all subcontractors shall, during the continuance of the work in connection with an Order, including any extra work, maintain the following insurance coverage: (1) Workers’ Compensation, Employer’s Liability Insurance, and any insurance required by any employee benefit acts or other statutes applicable where the work is to be performed. All such insurance shall be in an amount sufficient, in the opinion of Buyer, to protect Seller and subcontractors from any liability for bodily injury, sickness, or disease (including death resulting at any time there from) or any of their employees, including any liability or damage which may arise by virtue of any statute or any law enforced or which may hereinafter be enacted, (2) Comprehensive General Liability and Property Damage Insurance in such amounts as may be reasonably required by Buyer, but not less than $1 million dollars combined single limit, bodily injury, and property damage as protection against all risks of damage to or destruction of property or bodily injury, sickness, or disease, (including death resulting at any time there from) of persons wherever located, resulting from any action, omission, or operation in connection with the work performed pursuant to the Order, (3) Comprehensive Automobile Liability Insurance, including property damaged, covering all owned or rented equipment used in connection with the work in the minimum amounts of $1 million dollars per person, $1 million dollars per occurrence for bodily injury (including death resulting at any time there from) and $1 million dollars per occurrence for property damage. Insurance policies required hereunder shall be issued by companies licensed to do business in the State in which the work will be performed. Such policies shall name Buyer as an additional insured and shall contain endorsements stating they are primary and not excess or contributory with any other valid, applicable, and collectible insurance in force for Buyer. Such policies shall further contain appropriate endorsements extending the coverage to include the liability assumed by contractor under the Order. Buyer may require Seller to furnish evidence of such insurance at Buyers option, but Seller’s failure to comply with such insurance requirements shall not relieve Seller of its liability and obligations and Buyer’s action or inaction shall not act as a waiver of any of Buyer’s rights as described herein.
Termination for Default:
In addition to any rights or remedies Buyer may have In law, equity or hereunder, Buyer may terminate this order in whole or in part upon written notice to Seller In the event of Sellers (1) actual or anticipated breach of or default under any provision hereunder and failure to cure such breach or default within ten days of written notice from Buyer, (2) failure to make progress in Buyers reasonable discretion so as to impair Sellers performance hereunder, (3) bankruptcy, reorganization, receivership, insolvency or making an assignment for the benefit of creditors; or (4) other evidence of financial or organizational instability. Upon the effective date of termination specified in such written notice Seller shall (1) cease all work and place no further orders or subcontracts, (2) terminate work orders and subcontracts, and (3) take any necessary action to protect property in Sellers possession in which Buyer has or may acquire an Interest. Any such termination will be without liability to Buyer except for completed Items delivered and accepted by Buyer, payment for which may be set off against damages to Buyer. Upon such termination, Seller shall be liable to and will Immediately reimburse Buyer for an costs of any nature in excess of the purchase price hereunder that may be incurred by Buyer to complete performance of the services or production contemplated hereby. At Buyers option in the event of such termination, Seller shall transfer title and property to Buyer any or all property produced or procured by Seller for performance of the work terminated and Seller shall be credited there for.
Buyer’s failure to insist on performance of any of the terms or conditions herein or to exercise any right or privilege hereunder shall not thereafter waive any such terms, conditions, or privileges or any other terms, conditions, or privileges, whether of the same or similar type.
All material, including tools, models and prototypes, furnished or specifically paid for by Buyer Shall be subject to removal upon demand by Buyer, from Sellers place of business at any time, without additional cost, shall be used only in filling orders from Buyer, shall be kept separate from other materials or tools, and shall be clearly identified as the property of Buyer. Seller assumes all liability for loss or damage of Buyer’s property, with the exception of normal wear and tear, and agrees to supply detailed statements of inventory and stage of completion at monthly intervals or as otherwise agreed upon. Seller hereby grants to Buyer, its successors and assigns, a continuing security interest in all of Buyer’s Property and shall execute such financing statements and other such instruments to secure Buyers security interest in all such property.
Set-Off and Counterclaims:
All claims for moneys due or to become due from Buyer shall be subject to deduction by Buyer for any set-off or counterclaim arising out of this or any other of Buyers dealings with the Seller, whether such set-off or counterclaim arose before or after any amounts became due under an order.
Compliance with Applicable Law and Regulations:
Goods and Services covered by an Order shall be produced, sold and provided in accordance with all applicable state and federal statutes and/or regulations including but not limited to the following: (1) Fair Labor standards Act of 1938; (2) Occupational Safety and Health Act of 1970; (3) Equal Employment Opportunity, as defined by the Non-Discrimination Provisions of Section 202 of Executive Order Number 11246, as amended by Executive Order Number 11375 and amendments thereto and rules and regulations thereunder, except as exempted by provisions of Section 204 of Executive Order Number 11246 or amendments thereto; Equal Employment Opportunity Clauses of38 USC 2012, the Vietnam Veterans Readjustment Assistance Act of 1974, as amended, and the Rehabilitation Act of 1973; (4) Small Business Act, cited at 15 USC et. Seq.; (5) Anti-Kickback Enforcement Act of 1986, (6) all applicable State and Federal Worker’s Compensation Disability statutes, (7) any and all applicable Export Control or International Traffic in Arms Regulations (EAR or ITAR); and (8) any and all applicable Federal Acquisition Regulations (FARS or DFARS) that flow down from a government agency or prime contractor. If this is a DX or DO rated Order certified for national defense use, you are required to follow all provisions of the Defense Priorities and Allocations System regulations (15 CFR part 700). Buyer may terminate this Order, which will constitute a termination for cause, if Seller fails to provide to Buyer any of the necessary documentation to certify compliance herein, which certifications shall be promptly provided upon Buyers request.
Construction, Venue and Severability:
Buyer and Seller agree that an Order shall be governed by and interpreted in accordance with the laws of the State of California, without regard to its conflicts of law principals, The parties shall use their best efforts to reach an amicable settlement of any disputes. Failing such an amicable settlement, the courts of the United States shall have exclusive jurisdiction over any judicial proceedings related to or arising out of this Order. If any provision shall be found by a court or tribunal of competent jurisdiction to be invalid or unenforceable in part or in whole for any reason whatsoever, the validity of the remaining provisions or portions thereof shall not be affected thereby, and this Order shall be enforced consistent with the terms hereof to the greatest extent allowable. One or more waivers of any default or breach committed by Seller shall not operate as a waiver of any future or continuing default or breach. Both parties acknowledge and agree to venue for all actions within the state courts located in Riverside, California and federal courts located in the Southern District of California, respectively, as the exclusive venue for all actions and proceedings arising out of or related to the Order and shall be conducted in English.
In the event Buyer should bring an action for enforcement of the terms and conditions of this Order, Seller agrees that Buyer shall be entitled to an award of its reasonable attorney’s fees and court costs associated with such enforcement proceedings.
Either party may litigate any dispute arising or under or relating to an Order before any court of competent Jurisdiction. Pending resolution of any such dispute by settlement or by final judgment, the parties shall proceed diligently with performance, Seller’s performance shall be in accordance with Buyers written instruction, All references to dispute procedures in Government clauses incorporated by reference shall be deemed to be superseded by this clause.