2.1. If delivery of goods is not made in the quantities and/or at the time(s) specified in the relevant Purchase Order, Buyer reserves the right, without liability to take either or both of the following actions: (a) direct expedited routings of goods (the difference in cost between the expedited routing and the order routing costs shall be paid by Seller); (b) cancel this order or balance by notice effective when delivered to Seller; to purchase substitute goods elsewhere and charge Seller with any loss incurred, including the difference between the cost of substitute goods and the goods that would have been provided by Seller.
2.2. Seller shall use the means of delivery and the carrier specified and set forth by Buyer in the relevant Purchase Order. All deliveries of goods ordered by Buyer shall be F.O.B. delivery point designated by Buyer, with all title and risk of loss passing to Buyer upon delivery of the goods at the F.O.B. delivery specified by Buyer.
2.3. Each shipment of goods shall include separate packing slips showing: (a) Buyers’ Purchase Order number; (b) packing list number; (c) quantity of parts per container; (d) total number of containers shipped; (e) Buyer’s part number and revision level for each goods shipped, if applicable; (f) a description of the goods; (g) individual serial numbers of the goods, if applicable; (h) date of shipment; and (i) the total quantity of goods shipped.
2.4. Buyer will have no liability for payment or damages for goods delivered to Buyer in excess of quantities specified in the relevant Purchase Order or prior to the delivery schedule specified. Such goods may be subject to rejection and returned at Seller’s expense, including transportation charges both ways. Buyer will not be liable for any material or production costs incurred in excess of the amount or in advance of the time necessary to meet Buyer’s delivery schedules.
2.5. Seller shall package the goods in a manner that will prevent damage during shipping and ship the goods in accordance with Buyer’s instructions. Seller shall be liable for any loss or damage incurred as a result of improper packaging, crating and/or routing, including additional transportation costs due to improper routing.
4.1 UNLESS OTHERWISE AGREED BY BUYER, THE WARRANTY PERIOD SHALL BE FOR A PERIOD OF 36 MONTHS FROM THE DATE OF ACCEPTANCE THE GOODS.
4.2. AN EXPRESS WARRANTY FROM SELLER IS CREATED BY ANY AFFIRMATION OF FACT OR PROMISE MADE BY SELLER WHICH BECOMES PART OF THE BASIS BY WHICH THE AGREEMENT RELATING TO THE GOODS WAS MADE. ANY SAMPLE OR MODEL PROVIDED BY SELLER AS A BASIS FOR AN AGREEMENT BETWEEN THE PARTIES CREATES AN EXPRESS WARRANTY THAT THE GOODS SHALL CONFORM TO THE PROVIDED SAMPLE OR MODEL. AN IMPLIED WARRANTY THAT THE GOODS SHALL BE FIT FOR A PARTICULAR PURPOSE EXISTS WHERE SELLER HAS REASON TO KNOW OF SUCH PARTICULAR PURPOSE AND HAS ASSIGNED IN SELECTION AND/OR APPROVAL OF ITS USE FOR A PARTICULAR PURPOSE.
4.3. WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE EXIST BETWEEN THE TWO PARTIES, WITHOUT LIMITATIONS, AS SET FORTH AND DESCRIBED IN SECTION 5 BELOW. ANY EXPENSES, CHARGES OR LIABILITY ASSOCIATED WITH DEFECTIVE PRODUCT IN CASES OF ABOVE STATED WARRANTIES WILL BE BORNE BY SELLER. IN CASES WHERE A DESIGN CHANGE IS MADE TO AN EXISTING APPROVED PRODUCT WITHOUT KNOWLEDGE AND CONSENT BY BUYER, SELLER WILL BE ACCOUNTABLE FOR ANY INCREMENTAL CHARGES INCURRED. SELLER ABIDES BY THE WARRANTY OF MERCHANTABILITY, WHEREBY SELLER HAS OBLIGATION TO RELAY KNOWLEDGE AND SAMPLE OF REVISED PRODUCT FOR LAB TESTING TO BUYER FOR APPROVAL(S), AS APPLICABLE. WHERE PERFORMANCE SPECIFICATIONS HAVE BEEN THE BASIS FOR PRODUCT DEVELOPMENT, SELLER IS LIABLE FOR ANY AND ALL WARRANTY ISSUES REGARDING FITNESS FOR USE IN BUYER’S PRODUCT.
4.4. SELLER WILL BEAR RISK OF INCIDENTAL AND CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR LOSS OF MARKET SHARE RESULTING FROM SELLER’S BREACH OF PERFORMANCE. BUYER MAY RECOVER FROM SELLER THE DIFFERENCE BETWEEN THE COST OF COVER OR CHARGES INCURRED FOR SUBSTITUTE GOODS AND THE CONTRACT PRICE.
4.5. SELLER AGREES TO INDEMNIFY, DEFEND (AT BUYER’S REQUEST), PROTECT AND HOLD HARMLESS BUYER FROM AND AGAINST ALL (A) CLAIMS AND LIABILITIES OF THIRD PARTIES INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES AND EXPENSES, ARISING IN CONNECTION WITH OR RESULTING FROM A MATERIAL BREACH BY SELLER, OR ITS EMPLOYEES, REPRESENTATIVES OR OTHER AGENTS, OF SELLER’S OBLIGATIONS OR REPRESENTATIONS SET FORTH HEREIN; (B) PERSONAL INJURIES, PROPERTY DAMAGES, COMMERCIAL OR ECONOMIC LOSSES, INCLUDING, WITHOUT LIMITATION, ALL INCIDENTAL AND CONSEQUENTIAL DAMAGES, ARISING IN CONNECTION WITH SELLER’S PERFORMANCE HEREUNDER OR UNDER THE PURCHASE ORDER, OR CONTRIBUTED TO BY GOODS OR ITEMS FURNISHED BY SELLER TO BUYER IN CONNECTION HEREWITH OR WITH THE PURCHASE ORDER; AND (C) CLAIMS (INCLUDING DIRECT AND THIRD PARTY CLAIMS) AND LIABILITIES RESULTING FROM THE ACTS or OMISSIONS OF SELLER, ITS AGENTS, OR EMPLOYEES IN CONNECTION WITH ITS PERFORMANCE HEREUNDER OR UNDER THE PURCHASE ORDER.
8.1. Buyer may, by notice in writing to Seller, terminate the relevant Purchase Order or work thereunder, in whole or in part, at any time and such termination shall not constitute default. In such event, Buyer will pay Seller contract price for finished goods covered by this agreement held in Seller’s inventory provided product is completed to specifications and accepted by Buyer. Buyer will reimburse Seller verifiable costs associated with components in manufacture of incomplete Buyer’s proprietary products covered by this agreement.
8.2. Buyer shall have the right to cancel for default all or any part of the relevant Purchase Order upon the occurrence of any of the following events: (a) Seller does not make deliveries or furnish services according to the terms specified, (b) Seller repudiates such or any other Purchase Order or these Standard Terms, (c) Buyer rightfully rejects or revokes acceptance, (d) Seller breaches any of the terms hereof including warranties of Seller, (e) Seller makes an arrangement, extension or assignment for the benefit of creditors, (f) Seller dissolves or otherwise ceases to exist or liquidates all or substantially all of its assets, (g) Seller becomes insolvent or generally does not pay its debts as they become due or (h) Seller is adjudicated as bankrupt or files a voluntary petition in bankruptcy. Buyer may, at its option, request that Seller provide adequate written assurance of future performance pursuant to the Uniform Commercial Code as enacted in the State of New York. In such a case, Seller must provide said written assurance of performance within 10 days of Buyer’s written request (excluding the date of mailing). This right of cancellation and the right to request an adequate written assurance of future performance are in addition to and not in lieu of any other remedies which Buyer may have in law or equity.
17.1. Arbitration. Any controversy or claim arising out of or relating to these Standard Terms or the relevant Purchase Order, or the making, performance or interpretation thereof, including without limitation alleged fraudulent inducement thereof, shall be settled by binding arbitration in New York, New York by one arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Judgment upon any arbitration award may be entered in any court having jurisdiction thereof.
17.2. Notices. Notices and communications under the relevant Purchase Order or these Standard Terms shall be deemed given to either party at the address set forth on the relevant Purchase Order (includes any electronic address, if so provided on the relevant Purchase Order): (a) upon the expiration of 5 business days after the date of deposit in the U.S. mail if sent by registered mail, return receipt requested; (b) upon the next business day if sent by recognized overnight supplemental delivery service; (c) the same business date if notice is delivered personally; or (d) upon electronic confirmation of transmission if sent by facsimile or electronic mail.
17.3. Assignment. Seller may not assign, transfer or subcontract these Standard Terms or the relevant Purchase Order or any interest herein or any rights or duties hereunder without the prior written consent of Buyer.
17.4. Force Majeure. Neither party shall be liable in damages for any failure due to unforeseeable causes beyond its control and without its fault or negligence, including, but not restricted to acts of God or of the public enemy, acts of the Government, fires, floods, epidemics, quarantine restrictions, strikes, or freight embargoes.
17.5. Governing Law. These Standard Terms and each Purchase Order shall be interpreted and construed in accordance with the laws of the State of New York.
17.6. Affiliates. Any right, cause of action claim for relief or remedy granted to Buyer herein shall extend without exception to any entity that controls, is controlled by, or is under common control with Buyer.
17.7. Entire Agreement and Priority. These Standard Terms, together with each Purchase Order of which they are a part and any specifications set forth herein and therein, constitute the complete and final agreement between the parties and supersede all prior negotiations and agreements between the parties concerning the subject matter hereof and thereof; provide that (i) to the extent of any conflict between these Standard Terms and the terms of the relevant Purchase Order, the terms of the relevant Purchase Order will control and (ii) if at the time of delivery of a Purchase Order the parties are also party to an in effect Master Supply Agreement, additional terms in the Master Supply Agreement shall also apply, but in the case of conflict between any thereof the order of priority is (a) the relevant Purchase Order will control except that the price for any goods shall in any event be determined as set forth in an applicable Appendix to the Master Supply Agreement, (b) the terms of such Master Supply Agreement will control except as described in (a), and (c) these Standard Terms shall apply except in the case of conflict with the relevant Purchase Order or such Master Supply Agreement. The relevant Purchase Order, any Master Supply Agreement and these Standard Terms shall govern and control the respective rights and obligations of all Products purchased under such Purchase Order submitted by Buyer or its affiliates, to the exclusion of any additional delivery or purchase terms or conditions, whether set out in any acceptance or acknowledgment or otherwise, unless expressly agreed to in a writing signed by both parties.
In addition to these Standard Terms, the Purchase Order of which they are a part and any specifications set forth herein and therein, the parties hereto may also be party to a Confidentiality Agreement, a Tooling Agreement and/or an eKANBAN Agreement. The parties agree that: (y) any Confidentiality Agreement, Tooling Agreement and/or eKANBAN Agreement executed before the date hereof will survive the issuance of the Purchase Order and the effects of these Standard Terms and continue in full force in accordance with its terms; and (z) these Standard Terms, the Purchase Order of which they are a part and any specifications set forth herein and therein will survive the execution hereafter of any Confidentiality Agreement, Tooling Agreement and/or eKANBAN Agreement and continue in full force in accordance with its terms except to the extent such Confidentiality Agreement, Tooling Agreement and/or eKANBAN Agreement expressly amends them.
17.8. Amendment. Subject to Section 18.7, in no event will Buyer be deemed to have agreed to have changed, enlarged or modified its liabilities or obligations as fixed by these Standard Terms, by virtue of terms set forth in Seller’s acceptance, confirmation or otherwise, except by a writing signed by an officer of Buyer expressly amending these Standard Terms. Without limiting the foregoing, no mere acceptance of goods delivered will constitute acceptance of such a change, enlargement or modification.
17.9. Fair Labor Standards Act. Seller agrees that all goods purchased hereunder will be produced in compliance with the Fair Labor Standards Act.
17.10. Compliance with Applicable Law and Buyer Code of Responsible Business. Seller represents that the goods purchased hereunder were manufactured and priced and are being sold in compliance with all applicable federal, state, and local laws, rules and regulations. Seller acknowledges that Buyer has a code of responsible business (the “Code”), which is available upon request. Seller shall, at all times, conduct, and cause its officers, directors, employees and/or agents to conduct, business ethically and in accordance with the provisions of the Code. This Section shall apply whether or not Seller is acting pursuant to a Purchase Order or otherwise in its relationship with Buyer. Seller agrees that it must be able to demonstrate its compliance with the requirements referred to in this Section at the request of and to the satisfaction of Buyer which includes, but is not limited to, Buyer having the right to inspect any site involved in work for Buyer. If Seller fails to comply with this Section, Buyer shall be entitled, in its sole discretion, to terminate the relevant Purchase Order or other agreements between Seller and Buyer without penalty to Buyer, but with obligations for Seller to remedy any damages suffered by Buyer as a result of such termination or as a result of the breach of the relevant Purchase Order by Seller.
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