1. Complete Agreement
This order, which includes any supplementary sheets, schedules, exhibits, and attachments annexed hereto by Buyer, contains the complete and entire agreement between the parties with respect to the subject matter of this order, when accepted by acknowledgement or commencement of performance. It supersedes any other communications, representations or agreements whether verbal or written. The order may be accepted only on all the terms and conditions herein stated. Additional or different terms proposed by the Seller shall not be applicable, unless accepted in writing by an authorized employee of the Buyer and made a part of this order. No acceptance by Buyer of or payment for goods ordered hereunder shall be deemed a waiver of the foregoing or an acceptance of any additional or different terms contained in any acknowledgement, invoice or other form sent or delivered by Seller to Buyer. No usage or trade or course of dealing shall serve to alter or supplement the terms and conditions herein stated.
Buyer shall have the right to make, from time to time, changes as to packing, testing, destination, specifications, designs, quantity and delivery schedule of goods covered by this order. Seller shall promptly notify Buyer when such changes affect price or other terms and shall request Buyer’s written authorization to modify this order accordingly. Claims for adjustments under this clause must be asserted within thirty (30) days from the date of receipt of notification of the change(s).
The price of goods covered by this order shall be as set forth on the face hereof and shall not be subject to increase without Buyer’s prior written consent. Notwithstanding the above, the Seller agrees that the price of such goods shall not be less favorable than that extended to any other customer of Seller for same or like goods in equal quantities, and that if the price of such same or like goods is reduced prior to the delivery of goods hereunder, the price hereunder shall be reduced correspondingly. Unless otherwise set forth on the face hereof, the price of goods covered by this order shall include all extra charges, including charges for packing, containers, insurance and transportation. All taxes based upon and measured by the sales, use or manufacture and imposed on this sale shall be shown separately on Seller’s invoice.
Time of delivery as set forth on the face hereof is of the essence. If Seller for any reason does not complete delivery of all goods covered by this order within the time set forth on the face hereof, Buyer may, at its option, either approve the revised delivery schedule, reduce the total quantity of goods covered by this order by the amount of omitted shipments, reduce the price pro rata, or terminate this order by notice to Seller as to stated items not yet shipped or services not yet rendered and purchase substitute items or services elsewhere and charge Seller with any loss sustained, without incurring any liability whatsoever for any such revision, reduction or termination. Deliveries of goods covered by this order in advance of the time set forth on the face hereof are prohibited without Buyer’s prior written consent.
Title to and risk of loss on all goods shipped by Seller to Buyer hereunder shall pass to Buyer upon Buyer’s inspection and acceptance of such goods at Buyer’s plant. All delivered goods shall be packed and shipped in accordance with instructions or specifications of this order. In the absence of any such instructions, Seller shall comply with best commercial practice to ensure safe arrival at destination at the lowest transportation cost. If in order to comply with Buyer’s required delivery date it becomes necessary for Seller to ship by a more expensive method than specified in this order, Seller shall pay any increased transportation costs, unless the necessity for such rerouting or expedited handling is due to the fault of Buyer. Numbered packing slips, bearing the order number, must be placed in each container. Seller must list the packing slip number on its invoice.
Seller expressly warrants that all goods or services provided under this order shall: (i) be wholly new and contain entirely new components and parts; (ii) be merchantable; (iii) be free from defects in material, workmanship and packaging; (iv) be fit and sufficient for the purpose for which they are intended; (v) conform to all applicable specifications and appropriate standards; (vi) be equivalent in materials, quality, fit finish, workmanship, performance and design to any samples submitted to and approved by Buyer; and (vii) have been produced in compliance with all applicable federal, state and local laws, orders, rules and regulations. Seller further warrants that it has good warrantable title to the goods, and that it owns all patents, trademarks, trade names, trade dress, copyrights, trade secrets and other proprietary rights (other than proprietary rights owned by Buyer) used by Seller in connection with the goods and services or has been properly authorized by the owner of such proprietary rights. Seller shall indemnify and hold Buyer harmless for all damages arising out of any breach of these warranties. Seller shall extend all warranties it receives from its vendors and suppliers to Buyer, and to Buyer’s customers, and Seller’s warranties herein shall survive the delivery of goods to Buyer and any resale of goods by Buyer. Breach of these warranties, or any other term of this order, shall entitle Buyer to all available remedies, including those under the Uniform Commercial Code.
All goods covered by this order shall be subject to Buyer’s inspection and acceptance at Buyer’s plant or at any other place that Buyer may reasonably designate. Buyer expressly reserves the right, without any liability hereunder or otherwise, to reject and refuse acceptance of goods covered by this order that do not conform in all respects to any instructions of Buyer contained on the face hereof or Buyer’s specifications, drawings, blueprints and data. Neither Buyer’s payment of nor its inspection of goods covered by this order prior to their delivery to Buyer’s plant shall in any way waive Buyer’s right to make final inspection and acceptance of such goods at its plant.
In case any goods delivered hereunder are defective in material or workmanship or otherwise not in conformity with the drawings, specifications, samples and/or other descriptions, such goods shall be returned to Seller for credit or refund and shall not be replaced or repaired by Seller except upon written instructions from Buyer, excepting however, those goods which Buyer and Seller agree in writing shall be repaired by Buyer at Seller's expense. Any returns shall be F.O.B. Buyer's plant, transportation collect (declared at full value, unless Seller advises otherwise), and Seller shall have all risk of loss from and after the time of shipment. The inspection rights set forth herein are in addition to and not in limitation of any other rights and remedies and the failure to Buyer to exercise its right to reject any goods shall not by implication or otherwise cause a waiver of any such rights or remedies. Any goods returned to Seller for credit or refund, not repaired by Seller, pursuant to written instructions, shall be destroyed and not resold or disposed of to any other party or parties.
Buyer may terminate all or any part of this order at any time or times, for convenience, by written notice to the Seller. Seller shall submit its termination claim to Buyer within thirty (30) days from the effective date of termination. The provisions of this paragraph shall not limit or affect the right of the Buyer to terminate this order for default.
Buyer shall have the right to terminate this order or any part thereof without further cost or liability to Buyer in the event of the happening of any of the following: filing of a voluntary petition in bankruptcy by Seller; filing of an involuntary petition to have Seller declared bankrupt, if such petition is not vacated within thirty (30) days from the date of filing; the appointment of a receiver or trustee for Seller, if such appointment is not vacated within thirty (30) days from the date thereof; the execution by Seller of an assignment of the benefit of creditors; Seller’s failure to make or delay in making deliveries hereunder or any other failure of Seller to perform in accordance with this order, without excluding any other remedies available to Buyer. In the event Buyer terminates this order, in whole or in part as provided in this paragraph, Buyer may procure, upon such terms and in such manner as Buyer may deem appropriate, supplies and services similar to those so terminated, and Seller shall be liable to Buyer for any excess costs for such similar suppliers and services. Seller must furnish Buyer with written notice of any cause of failure which is beyond it’s control and without fault or negligence, within thirty (30) days of the occurrence.
Upon any default or breach of this order by Seller, Buyer in addition to other remedies, may at its option, require Seller to immediately transfer to Buyer all materials, work in process, completed goods, tooling, plans, and specifications allocable to the canceled portion of this order.
Unless otherwise set forth on the face hereof, net invoices relating to goods purchased hereunder shall be paid within ninety (90) days after the date of invoice or ninety (90) days after the date of acceptance of such goods, whichever is later. Payment for goods and/or services covered by this order will be made in currency set forth on the face of this order. Upon reasonable notification to Seller, Buyer may withhold and deduct from any part of the purchase price due under this order all or any part of the damages including consequential damages, resulting from any breach of terms and conditions contained herein, or any other amount which Seller owes Buyer or any of Buyer’s associated companies.
Cash discount period shall be computed either from date of acceptance of goods purchased hereunder, or date of receipt of correct and proper invoices relating to such goods, whichever date is later. Buyer shall be deemed to have paid for goods purchased hereunder on the date on which payment is mailed to Seller.
12. Intellectual Property Indemnity
Seller warrants the goods purchased hereunder and the use of such goods by Buyer or its customers shall not infringe or misappropriate any intellectual property rights, including, without limitation, any copyright, trademark, trade secret, patent, or other intellectual property right. Seller shall defend, indemnify, and hold Buyer and its customers harmless from any liability, or claim of liability, for such infringement or misappropriation, including damages, costs, expense, attorney’s fees and lost profits arising from any claim or suit brought against Buyer or its customer alleging such infringement or misappropriation, provided, however, that Seller is notified of such suit. In the event an injunction shall issue against Buyer in any such suit which prohibits or limits Buyer’s use of goods purchased hereunder, Seller shall, at no cost to Buyer, at Buyer’s request, furnish Buyer with non-infringing and/or non-misappropriated replacement goods of a similar kind and quantity or procure for Buyer the right to continue using the original goods.
13. Indemnification For Defects
Seller shall defend, indemnify and hold Buyer harmless against all damages, claims or liabilities and expenses (including attorneys’ fees) arising out of or resulting in any way from any patent or latent defect in the goods or services purchased under this order, or from any act or omission of Seller, it agents, employees or subcontractors. This indemnification shall be in addition to the other obligations of Seller.
14. Indemnification/Hold Harmless
Seller assumes entire responsibility and liability for any and all damage and/or injury of any kind or nature whatsoever, (including death resulting there from) to all persons, and to all property caused by, resulting from, arising out of or occurring in connection with Seller's goods sold hereunder. Except to the extent, if any, expressly prohibited by statute, should any claims, actions and/or lawsuits for such damage, injury and/or death be made or asserted, Seller agrees to defend, indemnify, save and keep harmless Buyer, its officers, agents, customers, directors and employees from and against any and all such claims, actions and/or lawsuits and further from and against any and all loss, cost, expense, judgment, settlement liability, damage or injury, including legal fees and disbursements, that Buyer, its officers, agents, customers, directors and employees may directly or indirectly sustain, suffer or incur as a result thereof and the defense of any action at law which may be brought against Buyer, its officers, agents, customers, directors and employees upon or by reason of any such claim, actions, and/or lawsuits and to pay on behalf of Buyer, its officers, agents, directors and employees upon demand, the amount of any judgment and/or settlement that may be entered against Buyer, its officers, agents, directors and employees in any such claim, action and/or lawsuit.
15. Inspection of Records
Seller agrees that all reasonable records pertaining to this order by Seller, shall at all reasonable times be subject to audit and inspection by any authorized representative of Buyer. Seller agrees to allow Buyer or his representative to inspect Seller’s facilities as required to insure order compliance.
During the delivery of goods and during five year period following such delivery, and during the period of any work to be performed by Seller on Buyer’s premises, Seller shall maintain and pay for liability insurance relating to such goods in amounts no less than the following: (a) with respect to bodily injury liability, One Million Dollars ($1,000,000) for each occurrence and Five Million Dollars ($5,000,000) aggregate per policy per year; (b) with respect to property damage liability, One Million Dollars ($1,000,000) for each occurrence and Five Million Dollars ($5,000,000) aggregate per policy per year. The insurance shall (a) be extended to include “Vendor’s Coverage”, (b) name Buyer as an additional insured with respect to such “ Vendor’s Coverage”; and (c) be written with insurance companies and contain such provisions as shall be satisfactory to Buyer. Seller shall furnish Buyer with certificates of insurance confirming the existence of such insurance. All such policies shall provide that the coverage thereunder shall not be terminated without at least thirty (30) days prior written notice to Buyer.
17. Restricted Use
Seller agrees that in consideration of its receipt from Buyer of Buyer’s property, Seller shall not at any time: (a) Engage either directly or indirectly (whether as principal, agent or otherwise) in the sale of goods utilizing Buyer’s property, or (b) Engage either directly or indirectly (whether as principal, agent or otherwise) in the sale of goods so resembling goods ordered by Buyer hereunder as to cause, absent a trademark thereon, customer deception as to the source of such goods, or (c) Register Buyer’s property or any part or item thereof in Seller’s name or take any other action inconsistent with Buyer’s proprietary rights thereto.
18. Buyer's Property
Unless otherwise provided in writing, property of every description, including all tools, equipment and materials furnished or made available to Seller, title to which is in Buyer, and any replacement thereof, shall be and remain the property of Buyer. Property other than materials shall not be modified without the written consent of the Buyer. Such property shall be plainly marked or otherwise adequately identified by Seller as property of Buyer (by name) and shall be safely stored separately and apart from Seller's property. Seller shall not use such property except for performance of work hereunder or as authorized in writing by Buyer. Such property while in Seller's possession or control shall be kept in good condition, shall be held at Seller's risk, and shall be kept insured by Seller, at its expense, in an amount equal to the replacement cost with loss payable to Buyer. To the extent such property is not materially consumed in the performance of the order, it shall be subject to inspection and removal by Buyer and Buyer shall have the right of entry for such purposes without any additional liability whatsoever to Seller. As and when directed by Buyer, Seller shall disclose the location of such property and/or prepare it for shipment and ship F.O.B. its plant to Buyer in as good condition as originally received by Seller, reasonable wear and tear accepted.
19. Confidentiality Of Information And Materials
All information and materials including, without limitation, drawings, artwork, data, customers’ names, or the like furnished by Buyer in connection with this order, shall remain property of the Buyer and shall be used by Seller only for work being done for Buyer and shall be held in strict confidence by Seller. All materials, equipment, and other suppliers furnished by the Buyer on consignment for processing, repairs or other reason shall remain the property of Buyer. Seller shall return all such items to Buyer at the conclusion of the work in good condition or otherwise dispose thereof on Buyer’s instructions.
20. Goods, Methods, And Processes
Any knowledge or information which the Seller shall have disclosed or may hereafter disclose to the Buyer incident to the placing and filing of this order shall not, unless otherwise specifically agreed upon in writing by the Buyer, be deemed to be confidential or proprietary information, and accordingly shall be acquired free form any restrictions (other than restrictions which may derive form a valid patent).
21. Compliance With Laws, Regulations and Supplier Code of Conduct
Seller agrees that it will comply with all federal, state and local laws and regulations applicable to the goods, sale and delivery of the goods or the furnishing of any labor or services called for by the order and any provisions required thereby to be included herein shall be deemed to be incorporated herein by reference. In addition, Seller agrees that it will comply in all respects with Supplier Code of Conduct that may be found at http://www.fortive.com/suppliers. Such Code of Conduct may be amended from time to time and Seller is advised to review Buyer’s website from time to time when it receives a new purchase order from Buyer.
Seller shall not assign this order or any contract resulting here from, or any rights hereunder, without first obtaining the written consent of Buyer. Any such assignment without the written consent of Buyer shall, at Buyer’s option, be void.
No course of dealing between Buyer and Seller or any delay on the part of Buyer in exercising any rights hereunder or under any contract resulting here from shall operate as a waiver of any of Buyer’s rights, except to the extent expressly waived in writing by Buyer.
Unless otherwise herein agreed, special tools, dies, jigs, fixtures, patterns, gauges, molds and test equipment (hereinafter collectively referred to as “Special Tooling”) to be used in the manufacture of goods ordered hereby shall be furnished by and at the expense of Seller, shall be kept in good condition and, when necessary, shall be replaced by Seller, without expense to Buyer.
If the price stated on the face hereof identifies the cost of any Special Tooling or special equipment to be fabricated or acquired by Seller for the purpose of filling this order, such Special Tooling and Special equipment and any process sheets related thereto shall become the property of Buyer and to the extent feasible shall be identified by Seller as such. Seller shall at its own expense maintain such Special Tooling and special equipment in proper working order and shall be responsible for all loss thereof or damage thereto while in its possession and shall use the same facilities, equipment or Special Tooling. Unless specifically provided to the contrary in this order, Seller warrants that the price set forth herein does not include any amount representing rent for the use of Government-owned facilities, equipment or Special Tooling.
Seller shall not subcontract any work or any goods to be supplied under this order without the prior written approval of Buyer.
26. Government Subcontract
If a government contract number appears on the face of this order, Seller agrees to comply with all terms and conditions of that government contract.
27. Independent Contractor
Seller shall perform the work necessary for performance of this contract with Seller's employees and agents under the control of Seller.
Buyer shall be entitled at all times to set-off any amount owing at any time from Seller to Buyer.
29. Use Of Buyer's Name
(a) Seller shall not, without first prior obtaining the written consent of Buyer, in any manner publish the fact that Seller has furnished or contracted to furnish Buyer the goods herein mentioned, or use the name of Buyer or any of its customers in Sellers advertising or other publication; (b) if the goods specified in the order are peculiar to Buyer's design, either as an assembly or component part of an assembly, or if the material bears Buyer's trademark and/or any other identifying mark, it shall not bear the trademark or other designation of the maker or Seller and similar material shall not be sold or otherwise disposed of to anyone other than Buyer.
The captions used herein are for convenience of reference only and shall not be deemed as in any way limiting or extending the terms of the provisions to which such captions refer.
31. Force Majeure
Neither Buyer or Seller shall be liable for delay or failure of performance due to changes in government priorities or control of materials or other necessary compliance with changes in government regulations, or strikes, fires, accidents, acts of God, or other causes beyond such party’s control and affecting its operations. Notwithstanding the foregoing, Buyer may terminate all or any portion of this order without liability to Seller if such delay or failure to perform by Seller or on the part of Seller extends beyond thirty (30) days after Buyer’s requested delivery date. Whenever an actual or potential labor dispute is delaying or threatens to delay the timely performance of this order, Seller shall immediately give notice thereof to Buyer.
32. Material Safety Data Sheets
All chemical purchase under the terms and conditions of this order shall be accompanied with a Material Safety Data Sheet provided by the chemical supplier/manufacturer. All chemical suppliers certify by acceptance of this order that the chemicals purchased are on the Toxic Substances Control Act, 15 U.S.C.S. Section 2601, et. seq., chemical inventory or are subject to an exemption and that such exemption is specified in the Material Safety Data Sheet.
33. Process Control
Seller shall make no change in material used, construction or fabrication techniques or test methods used without prior written approval of Buyer. Any such changes desired by the Seller shall be requested in writing indicating reason for such change and including effect on cost and performance.
34. Cumulative Remedies
The rights and remedies herein reserved to Buyer shall be cumulative and additional any other of further rights and remedies available at law or in equity.
If any one or more of the conditions of this order shall be invalid, illegal, or unenforceable in any respect under any applicable law, the validity, legality and enforceability of the remaining conditions contained herein shall not be affected or impaired in any way.
Nothing is this order shall be claimed or deemed to limit or exclude those remedies otherwise available to Buyer at law or in equity, and no disclaimers or modifications or attempted disclaimers or modifications of any express or implied warranties relating to the goods by Seller shall be valid or effective.
37. Applicable Law
This order and any contract resulting here from shall be construed and enforced in accordance with and governed by the laws of the jurisdiction where the Buyer is located, without reference to any choice-of-law rules that would otherwise require the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sales of Goods shall not apply to this order.