Purchase Order General Terms And Conditions
Introduction Unless this Purchase Order expressly states otherwise, it is subject to the terms and conditions specified herein. Buyer hereby objects to any additional or differing terms and conditions proposed by Seller in any proposal, quotation, acknowledgment, or other document. Any such additional or differing terms and conditions proposed by Seller will be null and void, and the terms and conditions herein will constitute the complete and exclusive statement of the contract terms between the parties.
Definitions
“Contract” refers to the established terms and conditions under which Seller provides Goods and Services to Buyer.
“Day” is defined as a calendar day.
“Delivery Address” represents the specified location in the Purchase Order where the Goods are to be delivered. If no address is detailed, the default Delivery Address shall be Buyer’s main office address, which 5030 Kraft Ave. Suite A, Grand Rapids, MI 49512.
“Goods” denote all goods, equipment, materials, articles, or other property or parts to be supplied to Buyer by Seller under the Purchase Order. This includes, without limitation, all related activities such as design, manufacture, inspection, testing, expediting, quality assurance and control, painting, and delivery as specified or required under the Purchase Order.
“Buyer” refers to TACK Electronics, LLC.
“Purchase Order” is the requisition form and supporting documents issued by Buyer to Seller, identifying Seller and including but not limited to a brief description of the Services and/or Goods and a list of the documents that make up the Purchase Order.
“Purchase Order Price” is the fixed price stated in the Purchase Order Form, not subject to escalation. This is the full amount that Buyer will pay to Seller as complete consideration for its obligations under the Purchase Order.
“Seller” is the party identified in the Purchase Order who is tasked with performing the Services and/or providing the Goods.
“Services” are the specific services detailed in the Purchase Order.
“Parties” refers to Buyer and Seller collectively. When referred individually, they may be referred to as a “Party.”
“Confidential Information” includes, but is not limited to, all data, technology, know-how, designs, trade secrets, proprietary information, and other information related to the Purchase Order or disclosed by one Party to another during the execution of the Purchase Order, which is designated as confidential or, due to its nature or the circumstances surrounding its disclosure, reasonably should be considered as confidential.
“Subcontractor” means any person or firm appointed by Seller to perform or to provide any part of the Services and/or Goods under the Purchase Order.
“Effective Date” refers to the date when the Purchase Order is accepted by Seller, indicated by the first to occur of Seller’s signing, Seller’s performance of any initial work on the Purchase Order, or any other conduct by Seller that recognizes the existence of a contract with respect to the subject matter of the Purchase Order.
“Termination” means the cessation or ending of the Purchase Order prior to completion of all obligations specified, through either the natural expiration of the Purchase Order or by act of one or both of the Parties.
“Intellectual Property Rights” refers to all patents, copyrights, design rights, trademarks, service marks, trade secrets, know-how, database rights, and other rights in the nature of intellectual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world.
“Force Majeure” means an event beyond the reasonable control of the Parties, which prevents a Party from complying with any of its obligations under the Purchase Order, including but not limited to acts of God, natural disasters, war, civil unrest, or industrial disputes.
“Warranty Period” refers to the specific duration, as mentioned in the Purchase Order, during which the goods provided by Seller are guaranteed to perform as specified.
Acceptance and Modifications
The Purchase Order and any amendments to it are considered accepted by Seller unless Buyer receives a written notification of rejection, which must be acknowledged and accepted by Buyer.
Any terms and/or conditions proposed by Seller either in a quotation, or during acceptance or acknowledgment of the Purchase Order, regardless of when they were provided, that aim to exclude any or all of the terms and conditions contained herein and/or in the Purchase Order, will have no legal or equitable effect against Buyer. These terms and conditions and the terms of the Purchase Order will in all cases apply to the exclusion of any such terms and/or conditions proposed by Buyer unless otherwise agreed to by Buyer in writing. ANY ATTEMPTED ACKNOWLEDGMENT OF THIS PURCHASE ORDER CONTAINING TERMS AND CONDITIONS INCONSISTENT WITH OR IN ADDITION TO THE TERMS AND CONDITIONS OF THIS PURCHASE ORDER IS NOT BINDING UPON BUYER UNLESS SPECIFICALLY ACCEPTED BY BUYER IN WRITING.
Seller may not subcontract or assign all or any part of the Purchase Order without Buyer’s prior written consent. Approval by Buyer of any subcontract will not relieve Seller of any of its obligations under the Purchase Order.
Any variations to the terms and conditions of the Purchase Order must be made in writing and signed by both Seller and Buyer.
Seller must maintain a complete and accurate record of all aspects of the Purchase Order, including the performance thereof by Seller. To verify that all transactions between Buyer and Seller satisfy the terms and conditions of the Purchase Order, Buyer has the right to inspect those records of Seller pertaining to the Purchase Order within a period of four (4) years from the provision of Goods and/or Services.
Time is of the essence for the Purchase Order, and Seller must deliver the Goods or perform the Services by the due date specified in the Purchase Order.
Pricing and Payment
Unless otherwise stated in the Purchase Order, prices are fixed and payable in US dollars (USD). Seller warrants that the prices set forth in this Order are complete, and that no additional charge of any type will be added without Buyer’s prior express written consent.
Unless otherwise stated, the prices do not include sales, use, excise, and similar taxes applicable to the Goods and/or Services or the materials used in their manufacture. All such taxes and charges must be shown separately on Seller’s invoices.
Seller will be paid upon submission of properly prepared invoices in accordance with Buyer’s invoicing instructions for materials and supplies delivered to and accepted by Buyer. Any adjustment in Seller’s invoice due to shortages, rejections, or other failure to comply with the provisions of this Purchase Order, or under any other order or contract between Buyer and Seller, may be made by Buyer before payment. Discount periods will commence from the later of the scheduled delivery date, actual delivery date, or receipt of the invoice. No charges will be honored unless specified in this Purchase Order. Invoices must be accompanied by a transportation receipt if transportation is payable as a separate item.
Unless otherwise stated in this Purchase Order, invoices for Goods and/or Services will be paid on the agreed-upon net terms stated in the original Purchase Order. The date of receipt of the invoice or receipt of the Goods and/or Services, whichever is later, will be the date used to determine the the “Payment Due Date” in accordance with the agreed-upon net terms. Discounts offered by Seller to Buyer will be allowed if payment is made on or before the Payment Due Date.
Contract Formation
The Purchase Order, when properly signed and bearing the order number, shall be the only authority from Buyer for charging Goods to its account. Together with these terms and conditions, it constitutes the entire terms and conditions of the Contract.
Termination
Buyer may terminate this Purchase Order at its discretion, in whole or in part, via written or electronic notice at any time. If this Purchase Order is terminated for convenience, any claim from the Seller will be settled based on the reasonable costs incurred by Seller during the performance of this Purchase Order. Materials for which Seller is reimbursed shall become the property of Buyer.
Shipping and Delivery
Seller must strictly adhere to the delivery schedule outlined in this Purchase Order, delivering the specified Goods and/or Services in the requested quantities at the times and locations designated by Buyer. Should Seller fail to meet these delivery dates and Buyer subsequently requests expedited shipping, Seller will cover the cost difference between the initially specified shipping method and the actual expedited rate. Seller will also bear responsibility for any additional charges arising from deviations from Buyer’s shipping instructions.
If Seller does not maintain prompt and regular delivery as per the stipulations of this Purchase Order, Buyer reserves the right to terminate this Purchase Order after issuing a notice to Seller. Should Seller be incapable of delivering as per the commitments made in the Purchase Order, it may result in incurred costs, penalties, fines, or other damages due to production halts and delayed shipments to Buyer’s customers. Seller will be accountable for and will reimburse Buyer for all such costs, penalties, fines, or other damages.
Title and risk of loss to all Goods will remain with Seller until the Goods are delivered to the F.O.B. point specified in the Purchase Order. If Seller encounters or anticipates difficulties in meeting the delivery schedule, Seller must promptly notify Buyer in writing, providing pertinent details. However, this information will be provided for informational purposes only and will not be interpreted as a waiver by Buyer of any delivery schedule or date, or any rights or remedies provided by law or this Purchase Order.
Goods manufactured exceeding the quantities stipulated in Buyer’s purchase order will be at Seller’s risk. Buyer reserves the right, without forfeiting discount privileges, to pay invoices for Goods shipped ahead of schedule on the normal maturity after the specified delivery date.
Unless otherwise stated in this Purchase Order, no charges for packing, packaging, containers, or transportation will be permitted.
Oversupply or Shortages
Except at the sole discretion of Buyer, overages or shortages of Goods specified in this Purchase Order will not be accepted and will be held at Seller’s risk. Buyer may return these Goods at Seller’s risk, with all transportation charges to and from the original destination paid by Seller.
Handling of Dangerous Goods
Seller is responsible (including cost) for ensuring that all personnel involved in the transportation of dangerous and/or hazardous Goods according to the Purchase Order have proper training, supervision, and personal protective equipment in compliance with all applicable laws, codes, guidelines, government requirements, and authorizations, plus all requirements of Buyer and Seller.
Material Safety Data Sheets (MSDS)
Seller must prepare Material Safety Data Sheets (MSDS) in accordance with the “National Code of Practice for the Preparation of Material Safety Data Sheets.” Each MSDS must be submitted to Buyer and made accessible to all personnel providing Services when such chemicals or hazardous materials are utilized during the provision of Services.
Defective Goods
Final inspection and acceptance of Goods shall occur after delivery to the Buyer-designated point. The Buyer may reject all Goods supplied under this Purchase Order found to be defective within a reasonable timeframe following delivery. In the event of a failure of any Goods to meet the warranties contained in this form (a “Nonconformity”), Seller must promptly correct or replace those Goods at their expense upon receiving notice from Buyer. If Seller fails to adequately address the Nonconformity, Seller shall reimburse Buyer for all costs incurred to correct or replace the Nonconformity. If Seller fails to do this, Buyer may cancel this Purchase Order for all such Goods and may also cancel the remaining balance of this Purchase Order.
After notifying Seller, all such Goods will be held at Seller’s risk. Upon Seller’s instruction, Buyer may return such Goods to Seller at Seller’s risk, and all transportation charges, both to and from the original destination, will be paid by Seller. Seller must refund any payment for such Goods unless they promptly correct or replace them at their expense.
If a field problem arises due to a Nonconformity in the Goods that is serious and widespread enough to threaten Buyer’s end product marketing, reputation, or safety, or causes a governmental agency to require a change in Buyer’s end product, leading to a recall or Product Improvement Program (a “PIP”), Seller must immediately cover all costs and expenses incurred by Buyer in taking corrective action. If the corrective action is necessitated partly due to a Nonconformity in the Goods and partly due to an act or omission of Buyer, the costs and expenses will be allocated between the parties proportionally according to their respective fault percentages.
Seller must provide Buyer with a minimum of sixty (60) days prior written notice for any specification, design, part number, or other identification changes, or for any significant changes in process or procedure, or changes in the location of the manufacturing plant or where Seller fulfills any of its obligations under this Purchase Order if any such changes may affect the Goods.
Product Warranty
Seller guarantees that the Goods will be new and made to the specified quality (unless otherwise stated), free from liens, charges, encumbrances, mortgages, or other defects in title; and that Seller holds good title to the Goods. Seller further warrants that the Services and Goods will be free from defects in design, materials, and workmanship, will conform to its description and the conditions and specifications of the Purchase Order, will conform to all applicable laws and regulations, and will be performed according to any performance standards specified in the Purchase Order.
Seller also guarantees adherence to any of Buyer’s policies as provided by Buyer to Seller from time to time, including but not limited to any of Buyer’s privacy policies.
The warranties mentioned above are in addition to any statutory warranties applicable to the Services and/or Goods.
Unless otherwise stated, the warranty period for the Goods will expire twelve (12) months after the Goods are first placed into service or twenty-four (24) months after the delivery of the Goods, whichever comes first.
Data Protection and Confidentiality
All drawings, specifications, reports, documents, or other records furnished or paid for by Buyer are the property of Buyer and shall be used solely for fulfilling orders from Buyer. They are to be kept separate from other drawings and specifications and identified as the property of Buyer. The information contained therein, unless already in the public domain, shall not be disclosed to others without Buyer’s written consent. This does not preclude disclosure to subcontractors approved by Buyer as necessary for the completion of this Purchase Order, provided such subcontractors are bound by the same obligations of confidentiality as contained herein.
Upon the completion, termination, or cancellation of this Purchase Order, all such drawings and specifications shall be returned to Buyer within thirty (30) days, unless Buyer requests an earlier return of any such items. Any data of Buyer retained by Seller shall remain subject to these restrictions on use, reproduction, and disclosure for as long as they are retained by Seller.
In the event of termination of this Purchase Order, whether for cause or convenience, Buyer may, at its discretion, use all related drawings, documents, or other records, regardless of whether they were created by Buyer or Seller, on a non-exclusive basis without further compensation to Seller.
Seller may not disclose the existence of this Purchase Order or the goods to be supplied hereunder without Buyer’s written consent, except to subcontractors approved by Buyer, who shall be bound by the same obligations. Any violation of this provision may lead to immediate termination of this Purchase Order and potential legal action for breach of contract.
Intellectual Property Rights
When payment is made for experimental, developmental, or research work performed under this Purchase Order, the Seller shall disclose and hereby assign to Buyer all inventions and intellectual property rights resulting from such work. Seller also grants Buyer the right to use for any purpose all data specified to be delivered under this Purchase Order.
Assignment
Seller may not assign any contract resulting from this Purchase Order or any portion thereof, without the prior express written consent of Buyer.
Notices
All notices required or permitted to be given under this Purchase Order shall be deemed properly given if delivered personally or sent by certified or registered mail in the United States, addressed to Seller or Buyer as appropriate, at the addresses specified in this Purchase Order, with full postage prepaid. The effective time of notice shall be the time of mailing.
Waiver
No waiver by Buyer of any breach of this Purchase Order or the granting of an extension for performance shall be deemed a waiver of any other or subsequent breach.
Disputes
Pending resolution of any dispute under this Purchase Order, Seller shall proceed diligently with the performance of work, including the delivery of Goods, as directed by Buyer. Upon resolution of the dispute, this Purchase Order shall be adjusted equitably, if necessary, to reflect such resolution.
Order of Precedence
This order and all documents incorporated by reference constitute the entire agreement between the Parties on this subject matter. In the event of any inconsistency among the documents, the inconsistency shall be resolved by giving precedence in the following order: (I) the Purchase Order to which these terms and conditions are attached; (II) Quality Assurance Clauses specified on the Purchase Order; (III) these terms and conditions; (IV) the drawings; (V) the specifications; and (VI) the other documents incorporated by reference.
Applicable Law
The validity, performance, and construction of the contract arising from the acceptance of this order shall be governed by and construed in accordance with the laws of the state of Michigan, excluding its choice of law rules. Jurisdiction and venue for any suit between the parties arising out of or connected with this order, or the goods furnished hereunder, shall lie exclusively in the county and state in which Buyer is located, and Seller waives any objection to such jurisdiction.
Configuration Control
Seller shall not make any changes in design, manufacturing, or assembly processes or source of supply, after the approval of the first production test item or after acceptance of the first completed end item, without the written approval of Buyer.
U.S. Export Control Laws (ITAR and/or EAR Compliance)
Technical data, as defined in 22 CFR 120.10 and the Export Administration Regulation 799.1 Supplement 3, which may be acquired or generated under this Purchase Order, is subject to either the International Traffic in Arms Regulations (ITAR) or Export Administration Regulations and may require appropriate authorization from the Department of State, Directorate of Defense Trade Controls or Department of Commerce, Bureau of Industry and Security (BIS) to a foreign person.
Therefore, Seller understands that, if it is a foreign entity, it shall not re-export or, if it is a U.S. entity, it shall not disclose to any foreign person, any technical data acquired under this Purchase Order until after notifying Buyer and written authorization from the appropriate U.S. Government agency is obtained.
Seller hereby agrees to:
Limit the use of the technical data to the manufacture of the defense articles required by the contract or Purchase Order only.
Prohibit the disclosure of the technical data to any other person except subcontractors within Seller’s country.
Prohibit the acquisition of any rights in the technical data by any foreign person.
Assure that any subcontracts issued by Seller to subcontractors within Seller’s country, in order to facilitate Seller’s execution of this Purchase Order, include all six (6) limitations contained in this clause.
Assure that the foreign person, including subcontractors, destroy or return to Buyer all the technical data exported by Buyer pursuant to the execution of the Purchase Order and upon fulfillment of its terms.
Assure delivery of the defense articles manufactured by Seller under the terms of the Purchase Order only to Buyer in the U.S. or to an agency of the U.S. Government.
Counterfeit Risk Mitigation
Seller shall adhere to the requirements of the SAE AS5553, Aerospace Standard, Counterfeit Electronic Parts; Avoidance, Detection, Mitigation, & Disposition, issued 2009-04 and AS6174: Counterfeit Material; Assuring Acquisition of Authentic and Conforming Material. This includes the following stipulations:
Product Traceability
Seller must maintain a traceability method that guarantees tracking of the supply chain back to the original manufacturer for all Electrical, Electronic, and Electromechanical (EEE) parts in assemblies and subassemblies being delivered per this Purchase Order. This method should clearly identify the name and location of every supply chain intermediary from the manufacturer to the direct source of the product for the seller. It should also include the manufacturer’s batch identification for the item(s), such as date codes, lot codes, serializations, or other batch identifications.
Tests and Inspections
Seller is responsible for performing all tests and inspections necessary to assure product authenticity, including establishing accept/reject criteria and qualifying test/inspection personnel.
Quality Management System
Seller must be compliant with and/or certified to a suitable quality standard such as AS9100, AS9120, ISO 9001, and AS9003, unless otherwise approved in writing by Buyer.
Financial Responsibility & Product Impound
Seller may be held liable for costs associated with the provision of counterfeit product. Counterfeit parts supplied under this agreement will be impounded. shall promptly replace such items with acceptable equivalents and shall be liable for all costs related to impoundment, removal, and replacement. The counterfeit items may be turned over to U.S. Government authorities for investigation and Buyer reserves the right to withhold payment pending the outcome of the investigation.
Length of Obligation
Seller is responsible for Goods deemed to be counterfeit for the entire product life cycle or three years post-delivery, whichever is longer.
Required Documentation
Seller should provide deliverable documentation as specified in the Purchase Order and applicable Quality Clauses. This includes certificates of conformance, test/inspection data, manufacturer’s labels, etc.
Fraud Penalties
The activities and the Purchase Order under this agreement fall within the jurisdiction of the United States Government. Any deliberate act to falsify, conceal, or alter a material fact, or any false, fraudulent, or fictitious statement or representation in connection with the performance of work under this purchase order could be punishable according to applicable Federal statutes.
Material Content/Authenticity
Seller shall ensure that only new and authentic materials are used in Goods delivered to Buyer. Seller may only purchase parts directly from Original Component Manufacturers (OCMs), OCM franchised distributors, or authorized aftermarket manufacturers. Use of products not provided by these sources is not authorized unless first approved in writing by Buyer. Seller must provide compelling support for its request (such as OCM documentation authenticating traceability of the parts to the OCM) and include in its request all actions taken to ensure the parts procured are authentic and conforming.
Conflict Minerals
Seller shall ensure that all Goods provided to Buyer are DRC (Democratic Republic of Congo) conflict-free, in accordance with Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, overseen by the Security & Exchange Commission.
Due Diligence
Seller must implement due diligence practices to mitigate the risk of DRC conflict minerals entering the supply chain. This process should include a good faith, reasonable inquiry to determine the country of origin.
Mitigation Products
Goods suspected of containing DRC conflict minerals may be subject to rejection and return. Buyer may also disqualify Seller to ensure that suspect products do not enter the supply chain.
Force Majeure
Neither party shall be held liable or responsible to the other party nor be deemed to have defaulted under or breached this Agreement for failure or delay in fulfilling or performing any term of this Agreement when such failure or delay is caused by or results from causes beyond the reasonable control of the affected party, including but not limited to fire, floods, embargoes, war, acts of war (whether war be declared or not), insurrections, riots, civil commotions, strikes, lockouts or other labor disturbances, acts of God or acts, omissions or delays in acting by any governmental authority or the other party.
Indemnity
To the fullest extent permitted by law, Seller agrees to indemnify, hold harmless, and defend Buyer and its affiliated companies, their respective directors, officers, employees, agents, and Buyer’s customers (“Indemnitees”) from and against any loss, liabilities, costs, expenses, suits, actions, claims, and all other obligations and proceedings, including, without limitation, all judgments rendered against, and all fines and penalties imposed upon, Indemnitees and all Indemnitee attorneys’ fees and any other costs of litigation (collectively, “Liabilities”) that are in any way related to Seller’s performance or obligations under the Purchase Order, including claims arising out of a breach hereof or thereof, warranty claims, product recall claims, product liability claims, injuries to persons (including death), or damage to property caused by Seller, its employees, agents, subcontractors, or in any way attributable to the performance of Seller, including, without limitation, breach of contract, breach of warranty, or product liability. Seller’s obligation to defend and indemnify under this section will apply regardless of whether the claim arises in tort, negligence, contract, warranty, strict liability, or otherwise, except for claims that arise as a result of the sole negligence of Buyer. Seller further agrees to indemnify, hold harmless, and defend Indemnitees from and against all Liabilities arising out of actual or alleged infringement, including infringement of any patent, trademark, or copyright relative to Goods or Services.
Confidentiality
Each party undertakes that it shall not at any time during this Agreement, and for a period of five years after termination of this Agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by the following clause. Each party may disclose the other party’s confidential information to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations under this Agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause.
Dispute Resolution
In the event of any dispute arising out of or in connection with this Agreement, the parties shall first attempt to resolve the matter through good faith negotiations. If the dispute cannot be resolved through negotiation, the parties agree to attempt to resolve the dispute through mediation, before resorting to litigation.
Insurance
Seller shall maintain in force, with a reputable insurance company, professional indemnity insurance, and public liability insurance to cover the liabilities that may arise under or in connection with this Purchase Order, and shall, on Buyer’s request, provide Buyer with both the insurance certificate giving details of cover and the receipt for the current year’s premium.
Obsolescence/End of Life
Seller shall make the best efforts to secure availability guarantees for critical and single-sourced parts incorporated in Goods supplied under this agreement and must provide written notice to Buyer of any impending obsolescence of such parts. Seller shall not allow any last-time buy opportunity to pass without giving Buyer the opportunity to arrange such purchase.
By accepting a Purchase Order, Seller agrees to the terms and conditions stated above.
MJ_DMS 36620309v1
