1. Acceptance. Commencement of performance pursuant to this Purchase Order constitutes acceptance thereof by Seller subject to these terms and conditions. Any terms or conditions proposed by Seller inconsistent with or in addition to the terms and conditions of purchase herein contained shall be void and of no effect unless specifically agreed to by Buyer in writing. Modifications hereof or additions hereto, to be effective, must be made in writing and be signed by Buyer’s purchasing representative.
2. Prices Terms and Invoices. The prices charged for goods ordered shall not be higher than those last quoted or charged by the Seller unless the price is specified on the face of this Purchase Order. Payment is contingent upon approval of the goods by Buyer. Time and material invoices are payable only after audit by Buyer. Subject to the foregoing, invoices will be paid according to the payment terms set forth on the face of this Purchase Order. A statement of account must be sent to the following address as soon as possible after the first of each month to address specified on the face of the Purchase Order, or such other address as indicated by the Buyer in writing. Delays in receiving a statement or invoice or any errors or omissions within a statement or invoice will be considered just cause for withholding settlement without losing any privileges, including but not limited to discount privilege.
3. Extra Charges; Taxes. No charges will be allowed or shall be made for cartons, wrapping, packing, boxing, crating, delivery, drayage, returnable containers or federal, state or local taxes, customs duties, sales tax, turnover taxes, and other applicable taxes, social insurance contributions, or fees unless authority for any such charges and the price therefore has been expressly authorized in writing by the Buyer, and such charges shall be itemized and stated separately in Seller’s invoice.
4. Packing, Marking and Shipping.
4.1 All goods shall be properly packed, marked, and shipped in accordance with the requirements of the common carrier transporting such goods and of this Purchase Order and in a manner which will permit the securing of the lowest transportation rates. Seller shall route shipments in accordance with Buyer’s instructions. Seller shall reimburse Buyer for all expenses incurred by Buyer as a result of improper packing, marking or routing.
4.2 Any transportation charges paid by Seller with respect to which Seller is entitled to reimbursement shall be added to Seller’s invoice as a separate item and the receipted freight bill shall be attached thereto.
5. Packing Slips and Bills of Lading. Each packing slip, bill of lading and invoice shall bear the applicable Purchase Order number. A numbered master packing slip shall accompany each shipment. The packing slip shall be included in one of the packages which shall be marked “Packing Slip Inside”.
6. Premium Shipments. If, because of failure of Seller to meet the delivery requirements of this Purchase Order, Buyer finds it necessary to require shipment of any of the goods covered by this Purchase Order by a method of transportation other than the method originally specified by Buyer, Seller shall reimburse Buyer the amount, if any, by which the cost of the more expeditious method of transportation exceeds the cost of the method of transportation originally specified unless such failure is determined by Buyer to be due to causes beyond the control and without the fault or negligence of Seller.
7. Delivery and Shipping Releases.
7.1 Time is of the essence and failure to deliver in accordance with the delivery schedule under this Purchase Order, if unexcused by Buyer, shall be considered a material breach of this Purchase Order. No acts of Buyer, including without limitation modifications of this Purchase Order or acceptance of late deliveries, shall constitute waiver of this provision. Buyer also reserves the right to refuse or return at Seller’s risk and expense shipments made in excess of Buyer’s orders or in advance of required schedules, or to defer payment on the advance deliveries until their scheduled delivery dates.
7.2 Seller shall notify Buyer in writing immediately of any actual or potential delay to the performance of this Purchase Order. Such notice shall include a proposed revised schedule but such notice and proposal or Buyer’s receipt or acceptance thereof shall not constitute a waiver to Buyer’s rights and remedies hereunder.
8. Inspection. All goods supplied hereunder shall be subject to inspection and testing at the times and places reasonably selected by Buyer, including the period and place of manufacture; and if any such inspection or test is made on Seller's premises, Seller shall furnish without additional charge all reasonable facilities and assistance for the safety and convenience of such persons as are conducting such inspection or test. In the event Buyer determines any goods to be defective in material or in workmanship, or otherwise not in conformity with the requirements of this Purchase Order, Buyer shall have the right at its discretion to (i) reject such goods; (ii) retain and correct them at Seller's expense; or (iii) require their correction by Seller within a reasonable period as shall be specified by Buyer. Rejected goods will be returned to Seller, at Seller's risk, for credit and Seller shall pay Buyer for all packing, handling, sorting and transportation expenses incurred in connection with the rejected goods. Complete records of all inspection work by Seller shall be kept by Seller and made available for review during the performance of this Purchase Order and for such additional period as is specified by the Buyer or governmental regulation.
9. Warranty. Seller warrants that the goods supplied under this Purchase Order will conform to the specifications, drawings, samples, or other descriptions furnished or specified by Buyer, and will be fit and sufficient for the purpose intended, merchantable, of good materials and workmanship, and free from defect. The warranties and remedies provided for in this Purchase Order shall be in addition to those implied by law and shall exist notwithstanding the acceptance by Buyer of all or a part of the goods with respect to which such warranties and remedies are applicable.
10. Liens. All items to be delivered hereunder and all property to be returned to Buyer shall be free and clear of any and all liens and encumbrances whatsoever.
11. Compliance with Laws. Seller shall comply with all applicable federal, state and local laws, government orders and regulations in performing this Purchase Order. On request Seller shall furnish Buyer with certificates of compliance with all such laws, orders and regulations.
12. Advertising. Seller shall not, without first obtaining the written consent of Buyer, in any manner advertise or publish the fact that Seller has furnished or contracted to furnish Buyer with the goods that are the subject of this Purchase Order, or disclose any of the details connected with this Purchase Order to any third party except as herein mentioned and except as may be required by law or as is necessary to perform this Purchase Order.
13. Specifications. All goods ordered to Buyer’s or government specifications must comply with such specifications unless otherwise specified by Buyer in writing. Any change to specifications, products/goods, processes, materials, suppliers or Seller’s manufacturing location must be approved by Buyer in writing signed by Buyer’s purchasing representative.
14. Use. The goods contracted for herein are to be for the use of the Buyer, its affiliated companies or its or their customers. All goods contracted for may be subjected to further processes of manufacture, combined with any goods, or put to any use whatsoever by the Buyer, its affiliated companies or its or their customers. In no event shall any claim for royalty or other additional compensation be made by the Seller by reason of such manufacture, combination or use.
15. Drawings, Specifications and Technical Information, Sales Information, Customer Information, Volumes and Pricing; Confidentiality. Drawings, data, designs, inventions, sales information, customer information, volumes, pricing and all other information supplied by Buyer shall remain Buyer’s property and shall be held in confidence by Seller. Such information shall not be reproduced, used or disclosed to others by Seller without Buyer’s prior written consent, and shall be returned to Buyer upon completion of this Purchase Order or upon demand. Any information which Seller may disclose to Buyer with respect to the design, manufacture, sale or use of the items covered by this Purchase Order shall be deemed to have been disclosed as part of the consideration for this Purchase Order, and Seller shall not assert any claim (other than a claim for a patent infringement) against Buyer by reason of Buyer’s use thereof. The purchase price of this Purchase Order is, in part, consideration for any design work performed by Seller in connection with this Purchase Order and incorporated in the goods to be delivered hereunder, and Seller therefore shall not supply such goods to others without Buyer’s written permission.
16. Buyer’s Property. All property used by Seller but owned, furnished, charged to or paid for by the Buyer, including but not limited to materials, tools, dies, jigs, patterns, fixtures, equipment and any replacement thereof, shall be the property of Buyer subject to removal and inspection by Buyer at any time without cost or expense. All such property shall be identified and marked as Buyer’s property, used only for this Purchase Order and adequately insured for Buyer’s protection. Seller shall assume all liability for and maintain and repair such property and return the same to Buyer in good condition, reasonable wear and tear excepted and except for the utilization of the property in accordance with Buyer’s written instructions and this Purchase Order. Any property owned by the government and declared by Seller for use on this Purchase Order shall be returned by Seller in as good condition as when received except for reasonable wear and tear or for utilization of the property in accordance with the provisions of the prime or subcontract.
17. Excusable Delays. Neither Buyer nor Seller shall be liable for a failure to perform hereunder arising from cause or events beyond the control and without the fault or negligence of the party failing to perform hereunder.
18. Changes. Buyer may at any time, by written change order, make changes in (1) the drawings, designs, and/or specifications applicable to the goods and/or services covered by this Purchase Order, (2) the method of shipment and packing and/or (3) the place of delivery. If any such changes affect the time for performance, the cost of manufacturing such goods, or the cost of furnishing such services, Buyer shall make an equitable adjustment in the purchase price or the delivery schedule or both. Seller shall not make any changes in the design or composition of any goods ordered hereunder without the prior written approval of Buyer. Any claim by the Seller for adjustment under this clause must be submitted in writing to the Buyer within thirty (30) days from the date of receipt by the Buyer of the notification of changes.
19. Cancellation. In the event that Seller breaches any material provision of this Purchase Order and such breach remains uncured for a period of fifteen (15) days after Seller’s receipt of written notice thereof, or if Seller becomes insolvent or commits any act of bankruptcy, Buyer shall have the right to declare Seller to be in default and to cancel all or part of any order for goods or services hereunder that are undelivered as of the date of such notice of default. Such right of cancellation is separate and distinct from the rights of Buyer set forth in section 20 below and any other remedies Buyer may have at law or in equity.
20.1 This Agreement may be terminated for convenience in whole or in part by Buyer at any time in accordance with this provision. Termination hereunder shall be effected by the delivery to Seller of a "Notice of Termination" specifying the date upon which such termination becomes effective. Such right of termination is separate and distinct from the rights of Buyer as set forth in Section 19 above. In the event of partial termination, Seller is not excused from performance of the non-terminated balance of work under the Purchase Order.
20.2 In the event of termination pursuant to Section 20.1 above, any termination settlement proposal shall be submitted to the Buyer promptly, but in no event later than 90 days following the effective date of the termination. If the parties cannot agree within a reasonable time upon the amount of fair compensation to the Seller for such termination, Buyer’s liability shall be limited to: (a) Buyer will pay the contract price for all items reasonably completed in accordance with this Purchase Order and not previously paid for unless said item(s) is part of Seller’s standard commercial items, and (b) Buyer will pay a fair and proper proportion of the contract price for items in process and for materials acquired or contracted for the purpose of fulfilling this Purchase Order which Seller is unable to cancel, return or otherwise use in Seller’s operations. Should Buyer so desire, cancellation charges shall be subject to Buyer’s audit. Buyer shall be entitled to take immediate possession of the foregoing items upon termination.
20.3 Under no circumstances shall Seller be entitled to payment for anticipated profits, unabsorbed overhead, or interest on borrowing by reason of such termination.
21. Severability. In case one or more of the provisions contained in this Purchase Order shall for any reason be held to be invalid, illegal, or unenforceable in any respect, shall be curtailed and limited only to the extent necessary to bring such provision within the requirements of the law, and such finding and curtailment shall not affect the validity or enforceability of any other provision of this Purchase Order.
22. Remedies; Non Waiver of Defaults. The remedies herein reserved shall be cumulative and additional to any other remedies in law or equity. Failure of Buyer to declare any default by Seller immediately upon occurrence thereof, or delay by Buyer in taking any action in connection therewith, shall not waive such default. Buyer shall have the right to declare any such default at any time and take such action as might be lawful or authorized, either at law or in equity.
23. Subcontracting. No contract shall be made by the Seller with any other party for furnishing any of the completed or substantially completed goods, spare parts, or work herein contracted for without the written approval of Buyer.
24. Liability for Injury. If Seller is required by the terms of this Purchase Order to perform, or does perform, any work on Buyer’s premises, Seller agrees that Seller shall be responsible for any damages or injuries to persons or property, including Buyer’s employees and property, that occur as a result of the fault or negligence of Seller, its agents, servants, or employees, in connection with the performance of such work, and that Seller shall hold harmless, defend and indemnify Buyer from and against any liability for such damages or injuries. Before commencing any such work, Seller shall furnish to Buyer a certificate of insurance showing that Seller carries adequate commercial general liability and property damage insurance with insurers, in amounts acceptable to Buyer and Workmen’s Compensation Insurance or its equivalent (or evidence of authority to self-insure). The failure by Seller to furnish to Buyer, or the failure of Buyer to obtain such a certificate of insurance, will not constitute a waiver of the requirement for such certificate or of any other provision on this Purchase Order.
25. Assignment of Purchase Order. Seller shall not delegate the performance of any work or the supplying of any goods or services under this Purchase Order. Seller may assign monies due and to become due under this Purchase Order, provided, however, that Buyer shall be entitled to assert against the assignee thereof all rights, claims, and defenses of every type (including without limitation rights of setoff, recoupment, and counterclaim), which Buyer could assert against Seller whether acquired prior or subsequent to such assignment.
26. Notice of Labor Disputes. Whenever Seller has knowledge that any actual or potential labor dispute is delaying or threatens to delay the timely performance of this Purchase Order, Seller shall immediately give notice thereof, including all relevant information with respect thereto, to Buyer.
27. Export/Import Controls. Seller shall control the disclosure of and access to technical data, information and other items received under this Purchase Order in accordance with all applicable U.S. and foreign export control laws and regulations, including but not limited to the International Traffic in Arms Regulations (“ITAR”) and the Export Administration Regulations (“EAR”).
28. U.S. Government Contracts/ AS9100 Orders. For Purchase Orders placed in support of a U.S. Government prime contract or subcontract, this Purchase Order shall be subject to all applicable current clauses and provisions set forth in the Federal Acquisition Regulation (FAR), the Defense Federal Acquisition Regulation Supplement (DFARS), and the Defense Priorities and Allocation System (DPAS) that are mandatory flow down clauses pursuant to applicable law and regulations, or that Buyer is required to flow down to Seller pursuant to such prime contract or subcontract, all of which are incorporated herein by reference. As appropriate under the circumstances, in such clauses "Government" and "Contractor" shall be revised to identify properly the contracting parties under this Purchase Order. For Purchase Orders placed in support of a U.S. Government prime contract or subcontract or for which Buyer otherwise requires compliance with AS9100 standards, (i) the Seller agrees that its plant, books and records shall be subject to inspection and audit at all reasonable times by any authorized representative Buyer, its customer or the government agency with which the prime contract or subcontract of the Buyer is made (ii) Seller shall keep process records on critical processes per applicable standards or customer or government requirements, and (ii) Seller shall flow down all requirements of this Purchase Order or other Buyer purchasing documents to its sub-tier suppliers.
29. Conflict Minerals.
29.1 Supplier acknowledges and understands that Buyer or its parent is a public company that files reports with the United States Securities and Exchange Commission (“SEC”) and, is subject to Section 1502 of the United States Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 and the rules and regulations of the SEC there under (together, the “Conflict Minerals Law”). Under the Conflict Minerals Law, Buyer or its parent will be required to submit reports and disclose on its website (a) whether any Conflict Minerals necessary to the functionality or production of its products originated from the Democratic Republic of the Congo (“DRC”) or any adjoining country and (b) if any Conflict Minerals did originate in the DRC or an adjoining country, the due diligence measures taken by Buyer and its parent to identify the source of the Conflict Minerals used in its products.
29.2 Supplier hereby represents and warrants to Buyer that no Conflict Minerals will be contained in or necessary to the functionality or production of any of the products or materials delivered to Buyer under this Agreement. Supplier agrees to immediately inform Buyer in writing if it learns or has reason to believe that the foregoing sentence is untrue with respect to any products or materials that have been delivered to Buyer hereunder.
29.3 As used in this section and in the Conflicts Minerals Law, the term “Conflict Minerals” means: (1) columbite-tantalite (coltan), cassiterite, gold, wolframite, and their derivatives (which derivatives are currently limited to tantalum, tin, and tungsten); and (2) any other mineral or its derivatives, the exploitation and trade of which is determined by the U.S. Secretary of State to be financing conflict in the DRC or an adjoining country.
30. Entire Agreement. This Purchase Order, together with any written instructions issued hereunder, constitutes the entire agreement between the parties hereto and supersedes any prior understandings, written or oral, between the parties with respect to the goods contracted for hereunder. No modification, alteration or waiver of this Purchase Order or any provision hereof shall be effective unless in writing and signed by both parties. No course of prior dealings, no usage of trade, and no course of performance shall be used to modify, supplement or explain any terms used in this Purchase Order.
31. Indemnification. Seller agrees to indemnify, defend and hold Buyer, its officers, agents and employees harmless against any claims for loss, damage or expense, including attorneys fees and costs of litigation, appeal or settlement (“Claims”) arising out of any occurrence relating to the acts or omission (including negligence) of Seller, its employees, agents and/or assigns or its performance hereunder, except to the extent that such Claims are caused by the negligence or willful misconduct of Buyer, its officers, agents or employees.
32. Infringement Indemnity.
32.1 Seller warrants that the goods specified herein, and their sale or use, alone or in combination according to Seller's specifications or recommendations, if any, will not infringe any United States or foreign patents, and agrees to indemnify , defend and hold harmless Buyer and anyone selling or using any of Buyer' s products against all Claims resulting from any alleged infringement, and agrees that Seller shall, upon request of Buyer and at Seller's own expense, defend or assist in the defense of any action which may be brought against Buyer or those selling or using any of Buyer' products by reason of any such alleged infringement.
32.2 Seller hereby grants to Buyer a license to repair, rebuild and relocate and to have repaired, rebuilt, and relocated the goods purchased by Buyer under this Purchase Order.
33. Notices. Any notice required or permitted to be sent under this Purchase Order shall be delivered by hand or mailed by registered or certified mail, return receipt requested, to Seller at the address set forth in this Purchase Order or such other address as the Buyer may indicate in writing. Notice so mailed shall be deemed effective on the fourth day following the date of deposit into the mail.
34. Governing Law and Dispute Resolution. This Purchase Order shall be construed in accordance with and governed by the laws of the Republic of Singapore, without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the laws of the Republic of Singapore to the rights and duties of the parties. This Purchase Order shall not be governed by the U.N. Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Except for matters of injunctive relief, for which either party may initiate proceedings in any court of competent jurisdiction, any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be finally and exclusively determined by binding arbitration. The number of arbitrators shall be one and the language of arbitration shall be English. The place of the arbitration shall be Singapore. The arbitration shall be administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules. Within  days after the commencement of arbitration, the parties shall appoint a person to serve as an arbitrator. If an arbitrator is not selected within the time period, the International Centre for Dispute Resolution shall, at the written request of any party, appoint the relevant arbitrator. Judgment on the award rendered by the arbitration proceeding may be entered in any court of competent jurisdiction, provided the relevant local legal procedure for enforcement is adhered to. Except as may be required by law, neither a party nor its representatives may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.
35. No Third Party Beneficiaries. It is not the intention of the parties to confer a third party beneficiary right of action upon any third party or entity whatsoever, and nothing in this Agreement will be construed to confer upon any third party other than the parties hereto a right of action under this Agreement or in any manner whatsoever.
End of Terms and Conditions.