ACCEPTANCE. This Purchase Order constitutes Buyer’s offer to Seller and commencement of performance pursuant to this Order shall constitute acceptance by Seller. Conditions stated by Seller in acknowledging receipt of this Order shall not affect Buyer’s offer as represented by this Order, and shall not be binding on Buyer if in conflict with or in addition to any of the provisions of this Order (including delivery schedule, price, quantity, specifications and terms and conditions) unless expressly agreed to in writing by Buyer or unless provided otherwise by the terms of this Order.
DELIVERY. Time is of the essence in this Order. If deliveries are not made at the time agreed upon, Buyer reserves the right without liability, in addition to its other rights and remedies, to terminate this Order by notice effective when received by Seller as to stated items not yet shipped or services not yet rendered, and to purchase substitute items or services elsewhere and charge Seller with any loss incurred. Any provisions herein for delivery of articles or the rendering of services by installments shall not be construed as making the obligations of Seller severable. Shipments sent C.O.D. without Buyer’s written consent will not be accepted and will be at Seller’s risk.
PRICE. Buyer shall not be billed at prices higher than stated on this Order, or in the absence of a stated price, at a higher price than previously quoted or charged, unless authorized in writing by Buyer. Seller represents that the price charged for the items or services covered by this Order, is the lowest price charged by Seller to buyers of a class similar to Buyer under conditions similar to those specified in this Order and the prices comply with applicable government regulations in effect at the time of quotation, sale or delivery. Seller agrees that any price reduction made in merchandise covered by this Order subsequent to the placement of this Order will be applicable to this Order.
CHANGES. Buyer reserves the right at any time to make changes in any one or more of the following: (a) specification, drawings and data incorporated in this Order where the items to be furnished are to be specially manufactured for Buyer; (b) methods of shipment or packing; (c) place of delivery; and (d) time of delivery. If any such change causes an increase or decrease in the cost of or the time required for performance of this Order, an equitable adjustment shall be made in price or delivery schedule, or both. Any claim by Seller for an adjustment under this clause shall be deemed waived unless asserted in writing within ten (10) days from receipt by Seller of the change. Price increases or extensions of time for delivery shall not be binding on Buyer unless evidenced by written authorization from Buyer.
QUALITY. Seller warrants that all products and/or services provided to Buyer under this Order meet all print requirements, specifications, plans, and instructions, samples furnished by either Buyer or Seller. Products shall be of acceptable material and workmanship, free from defects, either hidden or obvious. Seller is responsible for the development, implementation and maintenance of sufficient manufacturing controls, inspections, and tests to assure that the parts comply with the requirements of this specification on a continuing basis.
Buyer shall have the right, at any reasonable time to inspect materials, work in process, finished items and components, and records relating thereto, at any Seller facilities at which product is manufactured or records are kept. Buyer assumes no responsibility and waives no rights as a result of any such inspections.
Seller shall comply with other specific performance requirements as confirmed in writing by Buyer. Seller shall not modify existing manufacturing processes, packaging, design or product specifications without prior notification and consent of Buyer. Seller shall give Buyer not less than sixty (60) days written notice prior to any specification, design, obsolescence, part number or other identification changes, or any major changes in process or procedure or changes in the location of the manufacturing plant or place where Seller performs any of its obligations under this Order if any such changes affect the products and/or services purchased. Seller will document and validate approved changes using standard production part approval processes.
WARRANTY. Seller warrants products and/or services furnished will be in full conformity with Buyer’s requirements. If nonconformities are discovered, Seller may be debited for recovery of the labor and material costs incurred by Buyer.
In addition to any express or implied warranties of additional scope given to Buyer by Seller or implied by law, Seller hereby warrants products and/or services furnished by Seller will be in full conformity with Buyer’s instructions, specifications, drawings, design and data. Seller’s samples or representations will be free from defects in design (to the extent Seller is responsible for the design), materials and workmanship. Seller warrants product meets governmental and/or customary industry association standards and is provided with care and competence. Seller agrees this warranty shall survive acceptance of the product. Seller shall be responsible for every claim of failure, damage or injury that is based on a breach of the foregoing warranty. At Buyer’s option, Seller shall handle any such claims or shall provide all reasonable assistance to Buyer in handling the claim.
Seller shall warrant the product for a period of three (3) years from Seller’s manufacturing date code.
If any products and/or services provided by Seller fail to meet the requirements as outlined in Quality section, Seller shall, upon notice from Buyer, promptly correct or replace those materials at Seller’s expense. If Seller shall fail to adequately address the non-conformance, then Seller shall reimburse Buyer for all costs to correct or replace the non-conforming product. If Seller fails to do so, Buyer may cancel this Order as to all such product, and may additionally cancel the remaining balance of this Order. Such product will be held at Seller’s risk. Buyer may, and at Seller’s direction shall, return such product to Seller, at Seller’s risk and all transportation charges, both to and from the original destination, shall be paid by Seller. Any payment for such products and/or services shall be refunded by Seller unless Seller promptly corrects or replaces the same at its expense. If any field problem occurs as a result of a nonconformance and is sufficiently serious and widespread to threaten Buyer’s marketing of its end product or Buyer’s reputation or poses a previously unforeseen safety hazard or causes any governmental agency, including without limitation a governmental consumer product safety agency, to require a change in Buyer’s end product such that a recall or customer notification is required, Seller shall pay Buyer all costs and expenses incurred by Buyer in taking such corrective action.
CONFLICT MINERALS. Conflict minerals are defined as gold, tin, tantalum, and tungsten, regardless of where they are sourced, processed or sold. Seller shall not use conflict minerals originating from the Democratic Republic of Congo or surrounding countries in any product it manufactures or contracts to manufacture. Seller shall conduct a reasonable country of origin of all conflict minerals in the Seller’s product, and disclose the conflict mineral smelter data to the Buyer annually.
INDEMNIFICATION. Seller shall protect, defend, hold harmless and indemnify Buyer, its subsidiaries, affiliates, authorized dealers and distributors, and their officers, directors, employees, agents, successors, assigns, and customers, from and against any and all claims, suits, allegations, judgments, actions, liabilities, losses, damages, costs and expenses (including, but not limited to, attorneys’ fees and expenses) arising out of, resulting from, related to or associated with:
- Injury, loss or damage of any nature or kind claimed by a third party, and caused by or arising from, or alleged to have been caused by or arising from any infringement or alleged infringement of any patent or copyright, or wrongful use of any third party trade secret or proprietary information, for or on account of the manufacture, sale, offer for sale or use of any products, except in the case where Seller’s compliance with specifications prescribed by and originating with Buyer constitutes the sole basis of such infringement, alleged infringement or wrongful use. If the use or sale of any products and/or services, furnished under the terms of this Order is enjoined as a result of such suit, Seller at its option and at no expense to Buyer shall obtain for the party to be indemnified (including, but not limited to, Buyer’s customers) the right to use and/or sell the products or substitute acceptable equivalent products and/or services and extend this indemnity thereto.
- Seller’s negligence, strict liability or other claim involving the design, manufacture, material and/or workmanship of the products and/or services or the warnings or lack thereof.
- Seller’s breach of this Order or Seller’s possession, use, repair or maintenance of the products and/or services.
PATENTS. Seller undertakes and agrees to defend at Seller’s own expense all suits, actions, and proceedings in which Buyer, any of Buyer’s distributors or dealers, or the users of any of Buyer’s products are made defendants for actual or alleged infringement of any U.S. or foreign letters patent resulting from the use or sale of the items purchased hereunder (except infringement necessarily resulting from adherence to specifications or drawings, other than those of Seller’s design or selection, originally submitted to Seller by Buyer) and further agrees to pay and discharge any and all judgments and decrees which may be rendered in any such suit, action or proceedings against such defendants therein.
TITLE TO DRAWINGS AND SPECIFICATIONS. Buyer shall at all times have title to all drawings and specifications furnished by Buyer to Seller and intended for use in connection with this Order. Seller shall use such drawings and specifications only in connection with this Order, and shall not disclose such drawings and specifications to any person or entity other than Buyer’s or Seller’s employees, sub-contractors, or government inspectors. Seller shall, upon Buyer’s request, or upon completion of this Order, promptly return all drawings and specifications to Buyer. Any and all specifications, drawings, notes, instructions, engineering notices, or technical data referred to in this Order shall be deemed to be incorporated herein by reference as if fully set forth. In case of any discrepancies or questions, Seller shall refer to Buyer for decision or instructions or for interpretation.
CONTRACT INTERPRETATION. This Order and the acceptance thereof shall be a contract the interpretation and validity of which shall be determined and governed by the laws of the State of Oklahoma.
COMPLIANCE WITH LAWS. In accepting this Order, Seller represents that it has and will continue during the performance of this Order to comply with the provisions of all Federal, State and local laws and regulations from which liability may accrue to Buyer for any violation thereof. By acceptance hereof, Seller certifies its compliance with the Fair Labor Standards Act of 1938, as amended, Executive Order 11246, and Title Vii of the Civil Rights Act of 1964. Seller agrees to comply with all applicable customs regulations including providing Buyer with information needed to complete accurate timely Importer Security Filing (ISF) requirements.
PROPERTY FURNISHED TO SELLER BY BUYER. Unless otherwise agreed in writing, all special dies, molds, patterns, jigs, fixtures, and other property furnished to Seller by Buyer, or specifically paid for by Buyer, for use in performance of this Order, shall be and remain the property of Buyer, shall by subject to removal upon Buyer’s instruction, shall by used only in filling orders from Buyer, shall by held at Seller’s risk, and shall by kept insured by Seller at Seller’s expense while in its custody or control in an amount equal to the replacement cost thereof, with loss payable to Buyer. Copies of policies or certificates of such insurance will be furnished to Buyer on demand.
TOOLING. Unless otherwise agreed, Seller, at its own expense, shall furnish, keep in good condition and replace when necessary all dies, tools, gauges, fixtures, patterns, and similar items (herein collectively called “tooling”) necessary for the production of the products ordered. The cost of changes in tooling necessary to effect design or specification changes, hereafter ordered by Buyer, shall by paid by Buyer. Buyer has the option, however, to take possession and title to any tooling that is special for the production of the products covered by this Order and, in such event, shall pay to Seller, the unamortized cost thereof; provided, however, that this option shall not apply if the products hereby ordered are the standard products of Seller or if a substantial quantity of like material is being sold by Seller to others. Any material, property or tooling furnished to Seller by Buyer or for which Buyer reimburses Seller in the piece price or otherwise shall be deemed to be held by Seller under a bailment for the benefit of Seller and shall be returned on demand, whether oral or written, of Buyer. Seller shall be responsible for the value of any such material, property or tooling which is lost, destroyed, altered or damaged, except destruction or alteration thereof approved by Buyer in writing.