1.
PRICE. This is a firm price order. &n=
bsp;
2.
TERMS OF PAYMENT. Invoices shall be dated no earlier than date of shipment =
or
delivery of service. The discount period begins upon receipt of invoice,
required delivery date, or date any applicable discrepancy is resolved,
whichever date is later. Buye=
r will
pay non-discountable invoices thirty (30) days after receipt of invoice,
required delivery date, acceptance, or the date any applicable discrepancy =
is
resolved, whichever date is later.
3.
ATTACHMENTS. Documents designated by Buyer in the body of the Purchase Orde=
r,
including supplemental terms and conditions, if any, are incorporated by
reference the same as if set out in full therein.
4.
CHANGES. The Buyer reserves the right at any time to issue a written change
order or amendment to the Purchase Order concerning any of the following: (=
a)
specifications, drawings, and data incorporated in the Purchase Order where=
the
items to be furnished are to be specially manufactured for the Buyer; (b)
quantity; (c) methods of shipment or packaging, (d) place of delivery, (e) =
time
of delivery; or (f) any other matters affecting this Purchase Order.
5.
TERMINATION. Buyer may terminate the Purchase Order for its convenience, in
whole or in part, at any time prior to shipment by (written or electronic) =
notice
to Seller. Upon receipt of such termination notice, Seller shall promptly
comply with the directions contained in such notice and shall, as required,=
(a)
take action necessary to terminate the work as provided in the notice,
minimizing costs and liabilities for the terminated work, and (b) continue =
the
performance of any part of the work not terminated by Buyer.
6.
ASSIGNMENT. Seller may not as=
sign,
transfer, or subcontract this Purchase Order or any right or obligation
hereunder without Buyer’s written consent.
7.
EXCUSABLE DELAY. Fires, flood=
s,
strikes, accidents, shortages, or other causes beyond the reasonable contro=
l of
the parties, which prevent Seller from delivering, or Buyer from receiving,=
any
of the goods and services covered by this Purchase Order, shall suspend
deliveries until the cause is removed, subject, however, to Buyer’s r=
ight
of termination for convenience under Paragraph 5.
9.
PACKAGING, PACKING LIST, AND BILL OF LADING. Seller shall be responsible for
proper packaging, loading, and tie-down to prevent damage during
transportation. Buyer's
weight and/or count will be accepted as final and conclusive on all shipmen=
ts
not accompanied by a packing list. <=
/span>
10. INSPECTION. All goods and services furnished hereunder will be subject to inspection and test by Buyer at all times and places and will be subject to Buyer's final inspection and approval within a reasonable time after delive= ry. Buyer may reject goods and services not in accordance with Buyer’s instructions, specifications, drawings, data, or Seller’s warranty (expressed or implied), or for untimely delivery. Buyer may return rejected goods to Seller at Seller's expense and Buyer shall have no further obligat= ion for such goods. Payment for any goods or services shall not be deemed acceptance and in no event shall Buyer incur any liability for payment for rejected goods or services. <= o:p>
11.
WARRANTIES. By accepting this Purchase Order, Seller warrants that the goods
and services furnished will be free from defects in materials and workmansh=
ip,
merchantable and in full conformity with Buyer’s specifications,
drawings, and data, and Seller’s descriptions, promises, or samples, =
and
that such goods will be fit for the Buyer's intended use, provided Seller h=
as
reason to know of such use, and that Seller will convey good title to the
goods, free and clear from all liens, claims, and encumbrances. Upon Buyer’s request, =
Seller
shall furnish Buyer with a formal waiver or release of all liens by Buyer
and/or Buyer’s suppliers.
Seller
warrants that goods or services covered by this Purchase Order shall not
infringe any patent, design, mask work, copyright or trademark, of any third
party, either directly or contributorily. Seller agrees to indemnify Buyer a=
nd
hold Buyer harmless from and against all liability, loss, damage and expens=
e,
including reasonable counsel fees and costs of litigation, resulting from a=
ny
claim of infringement and any litigation relating thereto. In the case where goods or a part
thereof are held to constitute infringement and the use of the goods or a p=
art
thereof is enjoined, Seller shall, at the expense of Seller, either (a) pro=
cure
for the Buyer the rights to continue to using the goods, (b) replace the go=
ods
so that the goods become non-infringing, or (c) retake the goods and refund=
the
purchase price and transportation and installation cost of the goods to
Buyer. Such obligations shall
survive acceptance of the goods or services and payment therefore by Buyer.=
Where
applicable, the Seller warrants that the goods covered by this Purchase Ord=
er
are in compliance with all laws, regulations, rules, and orders relating to=
the
importation of goods into the United States, the exportation of goods out of
the country of origin, the transit of goods through intermediate countries =
and
the sale and use or foreign made goods in the United States. Seller further warrants that it has
obtained all permits, licenses, and certifications necessary for the goods =
to
be exported out of the country of origin, imported in the United States,
delivered to Buyer and used or sold within the United States.
12.
TITLE; RISK OF LOSS. Title shall pass to Buyer upon Buyer’s receipt of
goods at destination. Risk of loss of all goods shall remain in Seller until
receipt by Buyer at destination, unless otherwise specified in this Purchase
Order, except for loss occasioned by gross negligence or willful neglect of
Buyer or its customer. =
13.
CONFIDENTIALITY; LIMITED USE. Unless otherwise agreed by Buyer in writing,
Seller shall keep confidential and not disclose to any third party, any
confidential and/or proprietary materials provided by Buyer to Seller in
connection with Seller’s performance of this Purchase Order or prepar=
ed
by Seller specifically for Buyer pursuant to this Purchase Order, including=
but
not limited to any drawings, masters, software, specifications, raw materia=
ls,
components, data, business information or plans, customer lists or other
customer information (“Confidential Information”). Seller shall not make any copies of
Confidential Information except as specifically authorized by Buyer in writ=
ing. At the completion of this Purchase
Order, or upon Buyer’s request, Seller shall promptly return to Buyer=
all
Confidential Information not consumed in the performance of this Purchase
Order, together with any copies in Seller’s possession. Seller shall =
use
Confidential Information solely for Sellers performance of this Purchase Or=
der
for Buyer, and Seller shall not, without Buyer’s written consent,
directly or indirectly use Confidential Information or information derived =
therefrom in performing services or providing goods f=
or any
other customer of Seller, or any other person or entity.
14.
RESOLUTION OF CONFLICTS OR INCONSISTENCIES OCCURRING IN THE ORDER. It is
Seller's responsibility to comply with this Purchase Order and all referenc=
ed
documents, and to clarify with Buyer any inconsistencies or conflicts in any
parts of the Purchase order or referenced documents. Should Seller fail to
contact Buyer to resolve conflicts or inconsistencies, Seller will be solely
responsible for errors resulting from said conflicts or inconsistencies. Wh=
ere
documents are referenced, the version in effect at the time of order placem=
ent
shall apply.
15.
BUYER'S TERMS AND CONDITIONS APPLY. Acknowledgment of the Purchase Order,
shipment of any goods, or commencement of work pursuant to the Purchase Ord=
er
shall be deemed an acceptance of these General Terms and Conditions. No
modification of or release from this Purchase Order shall be binding unless
agreed to in writing by the parties and specifically labeled as a modificat=
ion
or release. Unless
specifically agreed to otherwise by Buyer and Seller, these terms and
conditions supersede any submitted by Seller in any proposal or acknowledgm=
ent.
16.
EXTRA CHARGES. No charges for extras or for cartage or boxing or storage wi=
ll
be allowed unless the same has been agreed upon in writing by Buyer. All go=
ods
must be forwarded in accordance with Buyer's shipping instructions; otherwi=
se
the difference in freight rate will be charged to Seller.
17.
SUBSTITUTIONS. No substitution of materials or accessories may be made with=
out
written permission from Buyer.
18.
WORK PERFORMED ON BUYER'S OR BUYER’S CUSTOMER’S PREMISES. If
Seller’s work under the Purchase Order involves operations by Seller =
on
the premises of Buyer or one of Buyer’s customers, Seller shall take =
all
necessary precautions and such additional precautions as Buyer or BuyerR=
17;s
customer may prescribe to prevent the occurrence of any injury to persons or
property during the progress of such work and, except to the extent that any
such injury is due solely and directly to Buyer’s or Buyer’s cu=
stomer’s
negligence, shall indemnify Buyer against all claims, liability, damage, or
loss (including expenses and attorneys' fees) which may result in any way f=
rom
any act or omission of the Seller, or Seller’s agents, employees, or
contractors; and shall maintain such public liability, property damage, and
employer's liability and compensation insurance as will protect Buyer and
Buyer’s customer from said risks and from any claims under any applic=
able
worker compensation and occupational disease acts.
19. =
RoHS Directive 2002/95/EC. =
All
components, materials and their surface finishes supplied to Buyer must be compliant with this=
RoHS Directive. The Seller may not substitute a compl=
iant
component or material with a non-compliant component or material without
written authorization from Buyer. The Seller is to obtain and hold RoHS
certification for all components, materials and any sub-contracted processes
and make such certification available on request.
20.
INDEMNIFICATION. Seller agrees to indemnify, defend, and hold Buyer harmless
from and against all losses, damages, liability, actions, judgments, costs,=
and
expenses (including, but not limited to, reasonable attorneys’ fees a=
nd
other expenses of litigation), suffered, incurred, or asserted by or against
Buyer (a) by reason of Seller’s breach of a warranty, (b) by reason of
Seller’s breach of any term of this Purchase Order, or (c) by reason =
of
personal injury, including death, or property damage sustained by a third
party, resulting from or arising out of an act or omission of Seller, or
Seller’s agents, employees, or contractors in fulfillment of this
Purchase Order.
21.
CUMULATIVE REMEDIES; WAIVERS; SURVIVAL OF WARRANTIES. The remedies herein
reserved to Buyer shall be cumulative, and additional to any other or furth=
er
remedies provided in law or equity.
No waiver by Buyer of any term or condition of this Purchase Order s=
hall
be construed as a permanent waiver of such term or condition or of any other
term or condition. SellerR=
17;s
warranties shall survive the completion or cancellation of this Purchase Or=
der.
22.
GOVERNING LAW. This Purchase Order shall be governed by the laws of the
Commonwealth of Massachusetts, U.S.A, except for its provisions regarding
principles of conflicts of laws, and except to the extent that federal
communications law shall apply. Any
court action arising under this order shall be venued<=
/span>
in Worcester County, Massachusetts, U.S.A., in either federal or state cour=
t,
as is appropriate.
23.
"GOODS” AND “SERVICES”. The term "goods" as
used herein means any and all materials, parts, products, machines, tooling,
test equipment, technical data, computer software, computer software
documentation, and other tangible items or documentary information furnishe=
d or
required to be furnished by Seller under this order. The term
"services" means any and all technical assistance, support,
maintenance, consultation, construction work, and other effort furnished or
required to be furnished by Seller under this order other than labor furnis=
hed
in connection with the production of goods.
24. ENTIRE AGREEMENT. Unless superseded by a specific signed agreement between Buyer and Seller, this agreement shall include the Purchase Order, these General Terms and Conditions, and all attachments referred to in the Purcha= se Order or in the General Terms and Conditions, and it shall constitute the entire agreement of the parties with regard to the subject matter contained herein. All other prior or contemporaneous representations, warranties, cov= enants, or agreements between Seller and Buyer, or their representatives, with resp= ect to the subject matter are hereby superseded. The term “Purchase Order” as used herein means the first and continuation pages of Swissturn’s completed Purchase Order form, incl= uding any special provisions contained therein.&= nbsp; This agreement may not be modified except by mutual written agreemen= t of the parties.