General Terms & Conditions of PurchaseThese terms and conditions govern the sale of Products (“Products”) and the provision of services (“Services”) by Simcona Electronics Corporation and its affiliates (“Seller”) as well as by third party vendors and/or service providers of Seller. These terms and conditions (“Agreement”) take precedence over Buyer’s supplemental or conflicting terms and conditions to which notice of objection is hereby given. Acceptance by Buyer is limited to and conditioned upon Buyer’s assent to these terms and conditions. Neither Seller’s commencement of performance or delivery shall be deemed or constituted as acceptance of Buyer’s supplemental or conflicting terms and conditions. Buyer’s acceptance of the Products and/or Services from Seller shall be deemed to constitute acceptance of the terms and conditions contained herein. THESE TERMS AND CONDITIONS MAY ONLY BE WAIVED OR MODIFIED IN A WRITTEN AGREEMENT SIGNED BY AN AUTHORIZED REPRESENTATIVE OF SELLER.
1. Acceptance-Order of Precedence-Modification This Purchase Order is for the purchase of goods, services, or goods and services described on the face of this document (collectively, “Goods”) and is issued by Simcona Electronics Corporation (“Purchaser”) to the entity providing the Goods identified on the face of this document (“Supplier”). This Purchase Order is deemed accepted upon the earlier of the return of the acknowledgment copy of this Purchase Order or the commencement of performance by Supplier. Purchaser rejects any additional or inconsistent terms and conditions offered by Supplier at any time, whether or not such terms or conditions materially alter this Purchase Order and irrespective of Purchaser’s acceptance of or payment for Supplier’s Goods. Any reference to Supplier’s quotation, bid or proposal will not be deemed acceptance of any term, condition, or instruction contained in that document. No course of prior dealing or usage of the trade will be used to modify, supplement or explain any term herein. These terms and conditions together with the specifications, drawings, or other documents referred to on the face of this Purchase Order, or attached, or any documents incorporated by reference, supersede any prior or contemporaneous communications, representations, promises, or negotiations, whether oral or written, with respect to the subject matter of this Purchase Order. All contract documents related to this Purchase Order are to be interpreted together as one agreement. However, if there is an irreconcilable conflict among the provisions of those contract documents, the following order of precedence applies: a) any master purchase agreement between the parties; then (b) any consignment agreement; then (c) any contract for labor services; then d) the face of this Purchase Order and any supplemental terms included or incorporated by reference; and finally e) other contract documents agreed to in writing by the parties. No change to or modification of this Purchase Order will be binding upon Purchaser unless in writing, specifically identifying that it is amending this Purchase Order, and signed, or approved electronically, by an authorized procurement representative of Purchaser. If Supplier becomes aware of any ambiguities, issues or discrepancies between this Purchase Order and any specification, design or other technical requirement applicable to this Purchase Order, Supplier will immediately submit the matter to Purchaser for resolution. This Agreement applies to Purchaser’s acquisition of Goods both from Suppliers a) whose principal place of business is located within the United States or whose Goods are sourced within the United States (“Domestic Transactions”) and b) whose principal place of business is located outside the United States (“International Transactions”).
2. Delivery, Shipment and Packaging2.1. Supplier will deliver Goods in accordance with the quantities and date(s) specified on this Purchase Order or the Purchase Order schedule releases. If delivery dates are not stated, Supplier will offer its best delivery date(s), which will be subject to acceptance by Purchaser. Unless otherwise directed, all Goods shipped in one day from and to a single location must be consolidated on one bill of lading or air waybill, as appropriate.
3. Notice of DelayWhenever anything delays or threatens to delay the timely performance of this Purchase Order, Supplier must immediately notify Purchaser in writing of all relevant information with respect to such delay.
4. Excusable Delay (Force Majeure)Any delay or failure of either party to perform its obligations shall be excused if and to the extent that the party is unable to perform due to: Acts of God; restrictions, prohibitions, priorities or allocations imposed or actions taken by a governmental authority; or acts of war. Supplier’s ability to sell Goods at a more advantageous price or Supplier’s economic hardship in buying materials or processing necessary for manufacture of the Goods will not constitute an excusable delay event. The party affected by an excusable delay will promptly provide written notice to the other, explaining in detail the full particulars and expected duration of the excusable delay, and will use its best efforts to remedy the delay if it is capable of being remedied. If Supplier’s delivery is delayed, Purchaser may, at Purchaser’s sole option, cancel deliveries that had been scheduled during the excusable delay period or elect to extend the period of performance commensurate with the period of delay caused by the excusable delay. If an excusable delay occurs that affects delivery of Goods to Purchaser, Supplier will allocate its available supply of Goods in a manner that assures Purchaser of at least the same proportion of Supplier’s total output of Goods as was allocated to Purchaser prior to the excusable delay event. If delivery of any Goods is delayed for more than 30 days, Purchaser may, without liability, cancel all or any part of this Purchase Order.
5. Performance Assurance PlanIf Purchaser, in its sole discretion, determines there is a significant risk that Supplier will fail to meet its performance or delivery requirements under this Purchase Order, Purchaser may require Supplier to perform under a Purchaser Performance Assurance Plan. The Performance Assurance Plan may include specific reporting and performance requirements reasonably tailored to ensure Supplier’s adequate performance under identified provisions of this Purchase Order. Any failure by Supplier to satisfy the terms of the Performance Assurance Plan is a material breach of this Purchase Order.
6. Shipping Terms, Title and Risk of Loss6.1. If the Goods will be transported from Supplier’s location in the U.S. to Purchaser’s location in the U.S., unless otherwise specified on the face of this Purchase Order or in a separate agreement, the point of delivery, as defined in Incoterms®2017, is the Purchaser’s location and Incoterm DAP will apply. When the point of delivery, as defined in Incoterms®2017, is Supplier’s location, Supplier bears all risk of loss or damage to the Goods and title passes to Purchaser upon delivery of the Goods to the carrier designated or approved by Purchaser; Incoterm FCA will apply. When the point of delivery, as defined in Incoterms®2017, is Purchaser’s location, Supplier bears all risk of loss or damage to the Goods and title passes to Purchaser upon delivery of the Goods at Purchaser’s location.
7. Import/Customs ComplianceSupplier assumes all responsibility and liability for any shipments covered by this Purchase Order requiring any government import clearance. If government authorities declare or otherwise impose countervailing duties, antidumping duties, or retaliatory duties on the Goods imported under this Purchase Order, Purchaser reserves the right to terminate this Purchase Order in accordance with the Termination provisions of this Purchase Order. Supplier will be debited for any duties, fees, or freight incurred by Purchaser due to Supplier’s failure to comply with the terms and conditions of this Purchase Order.
8. OffsetIf Supplier is a non-U.S. entity, Supplier will assist Purchaser in obtaining credit from Supplier’s government for the value of relevant Goods purchased hereunder to meet any present or future contractual offer or industrial benefit requirements imposed upon Purchaser or its subsidiaries or affiliates. Such assistance includes, but is not limited to, providing upon Purchaser’s request evidence of the existence, value, content and other pertinent information relating to such purchases. Purchaser reserves the right to claim these credits for itself or third parties. If Supplier is a U.S. entity which awards any portion of the work hereunder to lower tier non-U.S. suppliers, Supplier will assign to Purchaser any credits obtained from the non-U.S. sub-tier supplier’s government relating to this transaction and assist Purchaser in obtaining any such credits.
9. PriceSupplier will furnish the Goods at the lower of the prices stated on the face of this Purchase Order or the price of Supplier in effect on the date of delivery to customers in the same class as Purchaser for like quantities of Goods of like grade and quality. If prices are not stated on the face of this Purchase Order, Supplier will offer its lowest prices subject to written acceptance by Purchaser, which acceptance incorporates all of the terms and conditions of this Purchase Order. Unless otherwise provided on the face of this Purchase Order, the prices include all packaging, applicable taxes and other government charges including, but not limited to, all sales, use or excise taxes; and all customs duties, fees or charges. To the extent that value added tax (or any equivalent tax) is properly chargeable on the supply to Purchaser of any Goods, Purchaser shall pay such tax as an addition to payments otherwise due Supplier under this Purchase Order, provided that Supplier provides to Purchaser a value added tax (or equivalent tax) invoice.
10. Invoicing and PaymentAfter each shipment made or service provided, Supplier will submit an invoice listing a description of the Goods provided and, as applicable, part numbers, quantity, unit of measure, and the unit and total prices. Any incidental charges such as royalties, selling commissions, non-recurring engineering, or other incidental charges must be separately itemized and identified on the invoice. The invoice must also include the following information in English, or in the destination country’s official language if required: (a) name and address of Supplier and the Purchaser entity purchasing the Goods; (b) name of shipper (if different from Supplier); (c) Purchaser’s Purchase Order number(s); (d) country of export; (e) detailed description of the Goods; (f) Harmonized Tariff Schedule number; (g) country of origin (manufacture) of the Goods, or if multiple countries of origin, the country of origin of each part shipped; (h) weights of the Goods shipped; (i) currency in which the sale was made; (j) payment terms; (k) shipment terms used; and (l) all rebates or discounts. The invoice will be accompanied (if applicable) by a signed bill of lading or express receipt evidencing shipment. Payment of an invoice does not constitute acceptance of the Goods and is subject to appropriate adjustment should Supplier fail to meet the requirements of this Purchase Order. Payment terms are net 45 days from receipt of invoice and conforming Goods unless otherwise stated on the face of this Purchase Order or other written agreement executed by both parties. Payment will be scheduled for the first payment cycle following the net terms for the Purchase Order.
11. SetoffPurchaser may deduct any amount owing from Supplier to Purchaser as a setoff against any amount due or owing to Supplier under this Purchase Order.
12. Quality Assurance Supplier agrees to allow Purchaser, during normal business hours, to make reasonable inspections of the facilities where Supplier and its sub-tier suppliers manufacture or process the Goods.
13. Inspection13.1. All Goods may be inspected and tested by Purchaser; its customers; higher tier contractors; and end user at all reasonable times and places. If such inspection or testing is made on Supplier’s premises, Supplier will provide, without additional charge, all reasonable facilities and assistance required for such inspections and tests. In its standard inspection and testing of the Goods, Supplier will use an inspection system accepted by Purchaser in writing. All inspection records, including sub-tier supplier records relating to the Goods, will be maintained and made available to Purchaser during the performance of this Purchase Order, and for such longer periods as may be specified by Purchaser.
14. Warranty14.1. Supplier warrants to Purchaser, its successors, assigns, customers and end users that, all Goods furnished (including all replacement or corrected Goods or components thereof, which are also subject to warranty under this Section 14), regardless of whether such Goods are manufactured by Supplier or a third-party, will (a) be free from defects in material, workmanship, and design, even if the design has been approved by Purchaser, (b) strictly conform to applicable drawings, designs, quality control plans, specifications and samples and other descriptions furnished or specified by Purchaser, (c) be merchantable, (d) be fit for the intended purposes to the extent the Goods are not of a detailed design furnished by Purchaser and operate as intended, (e) comply will all applicable national and local laws, (f) be free and clear of any and all liens, restrictions, reservations, security interests or encumbrances, and (g) not infringe any patent, published patent application, or other intellectual property rights of any third party existing as of the date of delivery, and not utilize misappropriated third party trade secret information. Services will be performed in accordance with the highest standards in the industry. These warranties will survive any delivery, inspection, acceptance or payment by Purchaser. Claims for breach of warranty do not accrue until discovery of noncompliance, even if the Goods were previously inspected. The warranties provided are cumulative and in addition to any warranty provided by law or equity. Any applicable statute of limitations runs from the date of discovery of noncompliance or nonconformity. If conforming Goods are not furnished within the time specified by Purchaser, then Purchaser may, at its election and in addition to any other rights or remedies it may have at law or in equity, have the nonconforming Goods repaired, replaced or corrected at Supplier’s expense. In addition to the costs of repairing, replacing or correcting nonconforming Goods, Supplier is responsible for all related costs, expenses and damages including, but not limited to, the costs of removal, disassembly, failure analysis, fault isolation, reinstallation, re-inspection and retrofit of the nonconforming Goods or of Purchaser’s affected end-product; all freight charges; all customer charges; and all corrective action costs (i.e., costs of additional inspection or quality control systems). Unless setoff by Purchaser, Supplier will reimburse Purchaser for all such costs upon receipt of Purchaser’s invoice.
15. RecallSupplier is liable for all costs or damages associated with any voluntary or involuntary recall of defective or potentially defective Goods or any products containing or incorporating such Goods including, but not limited to, recalls by a customer, regulatory agency or in accordance with applicable laws or regulations. Supplier will be solely responsible for administering any recall or will fully participate in the administration of any recall conducted by Purchaser or its customer in relation to Supplier’s Goods as Purchaser may so direct. Each party will cooperate in making available records and other information reasonably required by the other party in connection with any recall. This Article will survive any termination or expiration of this Purchase Order and apply for at least the same duration as Purchaser’s obligation to its customer(s). In addition to any other indemnification obligation under this Purchase Order, Supplier will defend, indemnify and hold harmless Purchaser from any and all loss, damages, cost or expense, including attorneys’ fees, incurred as result of a recall. Such indemnification obligation shall include Purchaser’s attorneys’ fees incurred in enforcing the indemnification obligation under this Section 15.
16. ChangesPurchaser may, by written or electronic notification, direct changes to specifications, method of shipment or packing, quantity, or time or place of delivery of the Goods; reschedule the services; or require additional or diminished services. If any change causes an increase or decrease in the cost of, or the time required for, performing this Purchase Order, an equitable adjustment for reasonable costs will be made in the Purchase Order price, delivery dates or both. If the cost of property made obsolete or excess as a result of a change is paid by Purchaser, Purchaser may prescribe the manner of disposition of the property. Notwithstanding any disagreement between the parties regarding the impact of a change, Supplier will proceed diligently with its performance under this Purchase Order pending resolution of the disagreement. Purchaser may cancel this Purchase Order at any time prior to shipment of the Goods and will not be subject to any charges or fees for such cancellation.
18. General Indemnification and No Exclusivity or Non-Compete Arrangement18.1 Supplier will, at its expense, defend, indemnify and hold harmless Purchaser and its subsidiaries, affiliates and agents, and their respective officers, directors, shareholders, and employees, and Purchaser’s customers (collectively “Indemnitees”) from and against any and all loss, cost, expense, damage, claim, demand or liability, including attorney and professional fees and costs, arising out of, resulting from or occurring in connection with Supplier’s negligence, willful misconduct, breach of express or implied warranty, or breach of the terms of this Purchase Order. Supplier shall be solely responsible, and shall indemnify Indemnities, for all attorneys’ fees, costs and expenses incurred by Purchaser arising out of, relating to, or in connection with claims against Supplier for enforcement of the indemnification provisions of this Purchase Order, breach of any provision of this Purchase Order, and breach of any implied warranty. To the extent Supplier defends a third-party claim against Purchaser, prior to service or filing of any significant pleading, motion, brief, discovery response or other document on behalf of Purchaser, Supplier will provide such documents to Purchaser for review and approval, which will not be unreasonably withheld. In no event will Supplier enter into any settlement without Purchaser’s prior written consent.
19. Intellectual Property IndemnificationWith respect to the Goods provided hereunder, Supplier will, at its expense, indemnify and hold harmless Indemnitees from and against any and all loss, cost, expense, damage, claim, demand or liability, including reasonable attorney and professional fees and costs and the cost of settlement, compromise, judgment or verdict incurred by or demanded from Indemnitees arising out of, resulting from, or occurring in connection with any alleged: (a) patent, copyright or trademark infringement; (b) unlawful disclosure, use or misappropriation of a trade secret; or (c) violation of any other third party intellectual property right, and from expenses incurred by Indemnitees in defense of such suit, claim or proceeding. Supplier will have the right to conduct the defense of any such claim or action and, consistent with Indemnitees’ rights hereunder, all negotiations for its settlement; provided, however, in no event will Supplier enter into any settlement without Purchaser’s prior written consent, which will not be unreasonably withheld. Indemnitee may participate in such defense or negotiations to protect its interests. If any injunction or restraining order is issued, Supplier will, at its expense, obtain for Indemnitee either the right to continue to make, use, offer to sell, sell or import the Goods or replace or modify the Goods to make them noninfringing.
20. InsuranceSupplier will maintain insurance with a carrier rated a minimum AM Best rated “A”, covering at least the following insurance: commercial general liability (including product liability, and for services to be performed, completed operations liability) in a sum no less than $5 million, automobile liability in a sum no less than $5 million, worker’s compensation in an amount no less than the applicable statutory minimum requirement, employer’s liability in an amount of no less than $1 million, and manufacturer’s errors and omissions, including product recall coverage, in an amount no less than $1 million. Prior to the delivery of any Goods, Supplier will provide to Purchaser certificates of insurance evidencing that Supplier maintains the foregoing insurance, which will provide that such coverage will not be changed without 30 days advance written notification to Purchaser from the carrier(s). Except where prohibited by law, Supplier waives its rights of recovery and will require its insurers to waive their rights of recovery or subrogation against Purchaser, its subsidiaries and affiliated companies, and its and their respective officers, directors, shareholders, employees and agents. The amount of insurance carried in compliance with the above requirements is not to be construed as either a limitation on or satisfaction of the indemnification obligations in this Purchase Order.
21. Compliance with Laws and Integrity21.1. Supplier will comply with all applicable national, EU, state/provincial and local laws, regulations, ordinances and directives including without limitation those related to the environment, health and safety, and Purchaser’s Code of Business Conduct (“Code”) in performing this Purchase Order. In addition, and to the extent Purchaser and its suppliers are required to comply with codes of conduct of Purchaser’s customers (“Customer Codes”), Supplier will also comply with these Customer Codes. Supplier will maintain an integrity and compliance program acceptable to Purchaser and its customers and effective in preventing and correcting ethical violations and in maintaining compliance with laws.
22. Applicable Law and ForumThe construction, interpretation and performance of this Purchase Order and all transactions hereunder shall be governed by the laws of the State of New York, U.S.A. without regard to or application of its principles or laws regarding conflicts of laws, and excluding the United Nations Convention on the International Sale of Goods of 1980 (and any amendments or successors thereto). Any dispute, controversy, proceeding or claim arising out of or relating to this Purchase Order or any transaction hereunder, including without limitation the breach, termination, enforcement, interpretation or validity of this Purchase Order shall be brought exclusively in either the United States District Court for the Western District of New York or the Supreme Court of the State of New York. Supplier irrevocably submits to the exclusive venue and jurisdiction of the Designated Courts and waives any defense, counterclaim or other right to assert that it is not subject to the jurisdiction of the Designated Courts, that the Designated Court is not a convenient forum, or that venue is improper in the Designated Court.
23. Remedies All Purchaser remedies set forth in this Purchase Order are in addition to, and will in no way limit, any other rights and remedies that may be available to Purchaser at law or in equity.
24. NoticesAll Notices relating to this Purchase Order must be in writing. Notices to the parties will be sent to their respective addresses appearing on the face of this Purchase Order. Notices must be delivered personally; or delivered by recognized overnight courier; or mailed certified first class mail, postage prepaid; or sent by facsimile transmission to the facsimile number provided by Purchaser or Supplier respectively; or sent by electronic transmission (email) with proof of delivery. Any Notice will be deemed given on the date delivered if delivered personally; three business days after being placed in the mail as specified; or upon confirmation receipt that it was transmitted satisfactorily if transmitted by facsimile or electronic transmission.
25. Publicity Any news release, public announcement, advertisement, publicity or any other disclosure concerning this Purchase Order to any third party except as may be necessary to comply with other obligations stated in this Purchase Order requires prior written approval of Purchaser.
26. Headings and CaptionsHeadings and captions are for convenience of reference only and do not alter the meaning or interpretation of any provision of this Purchase Order.
27. WaiverThe failure of Purchaser to enforce at any time any of the provisions of this Purchase Order will not be construed to be a waiver of any provisions hereunder, nor will any such failure prejudice the right of Purchaser to take any action in the future to enforce any provisions hereunder.
28. SeverabilityIf any provision of this Purchase Order is held to be illegal, invalid, or unenforceable by applicable law, that provision will be severed from this Purchase Order; the remaining provisions will remain in full force and effect; and a similar legal, valid and enforceable provision will be substituted in lieu of the severed provision.
29. Supply Chain SecuritySupplier will implement the Business Partner Criteria of any Supply Chain Security Program that the country of import for the Goods may adopt such as the U.S. Customs-Trade Partnership Against Terrorism (C-TPAT) or the Canadian Partners in Protection (PIP) Program.30. SurvivalAll provisions of this Purchase Order which by their nature should apply beyond its term will remain in force after any termination or expiration of this Purchase Order including, but not limited to, those addressing the following subjects: Import/Customs Compliance, Price, and Meet or Release, Invoicing and Payment, Setoff, Warranty, Recall, General Indemnification, Indemnification, Insurance, Confidentiality, Applicable Law and Forum, Publicity, and Survival.
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