Purchase Order Terms and Conditions
Acceptance
Agreement Seller’s commencement of work on the goods subject to this purchase order or shipment of such goods, whichever occurs first shall be deemed an effective mode of acceptance of this purchase order. Any acceptance of this purchase order is limited to acceptance of the express terms contained on the face and back hereof. Any proposal for additional or different terms or any attempt by seller to vary in any degree any of the terms of this offer in Seller’s acceptance is hereby objected to and rejected, but such proposals shall not operate as a rejection of this offer unless such variances are in the terms of this offer in Seller’s acceptance is hereby objected to and of this offer unless such variances are in the terms of the description, quantity, price or delivery schedule of the goods, but shall be deemed a material alteration thereof, and this offer shall be deemed accepted by Seller without said additional or different terms. If this purchase order shall be deemed an acceptance of a prior offer by Seller, such acceptance is limited to the express terms contained on the face and on the back hereof. Additional or different terms of this purchase order shall be deemed material and are objected to and rejected, but this purchase order shall not operate as a rejection of the Seller’s offer unless it contains variances in the terms of the description, quantity, price, or delivery schedule of the goods.
Termination for Convenience of Purchaser
Purchaser reserves the right to terminate this order or any part hereof for its sole convenience. In the event of such termination, Seller shall immediately stop all work hereunder, and shall immediately cause any of its suppliers or subcontractors to cease such work. Seller shall be paid a reasonable termination charge consisting of a percentage of the order price reflecting the percentage of the work performed prior to the notice of termination, plus actual direct costs resulting from termination. Seller shall not be paid for any work done after receipt of the notice of termination, or for any costs incurred by Seller’s suppliers or subcontractors which Seller could reasonably have avoided.
Termination for Cause
Purchaser may also terminate this order or any part hereof for cause in the event of any default by their vendor, or if the vendor fails to comply with any of the terms and conditions of this offer. Late deliveries, deliveries of products which are detective or which do not conform to this order, and failure to provide Purchaser, upon request, of reasonable assurances of future performance shall all be causes allowing Purchaser to terminate this order for cause. In the event of termination for cause, Purchaser shall not be liable to Seller for any amount, and Seller shall be liable to Purchaser for any and all damages sustained by reason of the default which gave rise to the termination.
Proprietary Information
Confidentiality – Advertising – Seller shall consider all information furnished by Purchaser to be confidential and shall not disclose any such information to any other person, or use such information itself for any purpose other than performing this contract, unless Seller obtains written permission from Purchaser to do so. This paragraph shall apply to drawings, specifications, or other documents prepared by Seller for Purchaser in connection with this order. Seller shall not advertise or publish the fact that Purchaser has contracted to purchase goods from Seller, nor shall any information relating to the order be disclosed without Purchaser’s written permission. Unless otherwise agreed in writing, no commercial, financial or technical information disclosed in any manner or at any time by Seller to Purchaser shall be deemed secret or confidential and Seller shall have no rights against Purchaser with respect thereto except such rights as may exist under patent laws.
Warranty
Seller expressly warrants that all goods or services furnished under this agreement shall conform to all specifications and appropriate standards, will be new, and will be free from defects in material or workmanship. Seller warrants that all such goods or services will conform to any statements made on the containers or labels or advertisements for such goods, or services, and that any goods will be adequately contained, packaged, marked and labeled. Seller warrants that all goods or services furnished hereunder will be merchantable, and will be safe an appropriate for the purpose for which goods or services of that kind are normally used. If Seller knows or has reason to know the particular purpose for which Purchaser intends to use the goods or services, Seller warrants that such goods or services will be fit for such particular purpose. Seller warrants that goods or services furnished will conform in all respects to samples. Inspection, test, acceptance or use of the goods or services furnished hereunder shall not affect the Seller’s obligation under this warranty, and such warranties shall survive inspection, test, acceptance and use. Seller’s warranty shall run to Purchaser, its successors, assigns and customers, and users of products sold by Purchaser. Seller agrees to replace or correct defects of any goods or services not conforming to the foregoing warranty promptly, without expense to Purchaser, when notified of such nonconformity by Purchaser, provided Purchaser elects to provide Seller with the opportunity to do so. In the event of failure of Seller to correct defects in or replace nonconforming goods or services promptly, Purchaser, after reasonable notice to Seller, may make such corrections or replace such goods and services and charge Seller for the cost incurred by Purchaser in doing so.
Price Warranty
Seller warrants that the prices for the articles sold Purchaser hereunder are not less favorable than those currently extended to any other customer for the same or similar articles in similar quantities. In the event Seller reduces its price for such article during the term of this order. Seller agrees to reduce the prices hereof correspondingly. Seller warrants that prices shown on this purchase order shall be complete, and no additional charges of any type shall be added without Purchaser’s express written consent. Such additional charges include, but are not limited to, shipping, packaging, labeling, custom duties, taxes, storage, insurance, boxing, crating.
Force Majeure
Purchaser may delay delivery or acceptance occasioned by causes beyond its control. Seller shall hold such goods at the direction of the Purchaser and shall deliver them when the cause affecting the delay has been removed. Purchaser shall be responsible only for Seller’s direct additional costs in holding the goods or delaying performance of this agreement at Purchaser’s request. Causes beyond Purchaser’s control shall include governmental action or failure of the government to act where such action is required, strike or other labor trouble, fire, or unusually severe weather.
Patents
Seller agrees upon receipt of notification to promptly assume full responsibility for defense of any suit or proceeding which may be brought against Purchaser or its agents, customers, or other vendors for alleged patent infringement, as well as for any alleged unfair competition resulting from similarity in design, trademark or appearance of goods or services furnished hereunder, and Seller further agrees to indemnity Purchaser, its agents and customers against any and all expenses, losses, royalties, profits and damages including court costs and attorney’s fees resulting from any such suit or proceeding , including any settlement. Purchaser may be represented by and actively participate through its own counsel in any such suit or proceeding if it so desires, and the costs of such representation shall be paid by Seller.
Insurance
In the event that Seller’s objections hereunder require or contemplate performance of services by Seller’s employees, or persons under contract to Seller, to be done on Purchaser’s property, or property of Purchaser’s customers, the Seller agrees that all such work shall be done as an independent contractor and that the persons doing such work shall be considered employees of Purchaser. Seller shall maintain all necessary insurance coverage’s, including public liability and Workman’s Compensation insurance. Seller shall indemnify and save harmless and defend Purchaser from any and all claims or liabilities arising out of the work covered by this paragraph.
Indemnification
Seller shall defend, indemnify and hold harmless Purchaser against all damages, claims or liabilities and expenses (including attorney’s fees) arising out of or resulting in any way from any defect in the goods or services purchased hereunder, or from any act or omission of Seller, its agents, employees or subcontractors. This indemnification shall be in addition to the warranty obligations of Seller.
Changes
Purchaser shall have the right at any time to make changes in drawings, designs, specifications, materials, packaging, time and place of delivery and method of transportation. If any such changes cause an increase or decrease in the cost, or the time required for the performance, an equitable adjustment shall be made and this agreement shall be modified in writing accordingly. Seller agrees to accept any such changes subject to this paragraph.
Inspection/Testing
Payment for the goods delivered hereunder shall not constitute acceptance thereof. Purchaser shall have the right to inspect such goods and to reject any or all of said goods which are in Purchaser’s
judgment defective or nonconforming. Goods rejected and goods supplied in excess of quantities called for herein may be returned to Seller at its expense and, in addition to Purchaser’s other rights, Purchaser may charge Seller all expenses of unpacking, examining, repacking, and reshipping, such goods. In the event Purchaser receives goods whose defects or nonconformity is not apparent on examination, Purchaser reserves the right to require replacement, as well as payment of damages. Nothing contained in this purchase order shall relieve in any way the Seller from the obligation of testing, inspection and quality control.
Entire Agreement
This purchase order and any documents referred to on the face hereof, constitute the entire agreement between the parties.
Assignments and Subcontracting
No part of this order may be assigned or subcontracted without the prior written approval of Purchaser.
Set off
All claims for money due or to become due from Purchaser shall be subject to deduction or set off by the Purchaser by reason of any counterclaim arising out of this or any other transaction with Seller.
Shipment
If in order to comply with Purchaser’s required delivery date it becomes necessary for Seller to ship by a more expensive way than specified in this purchase order, any increased transportation costs resulting therefrom shall be paid for by Seller unless the necessity for such rerouting or expedited handling has been caused by Purchaser.
Waiver
Purchaser’s failure to insist on performance of any of the terms or conditions herein or to exercise any right or privilege or Purchaser’s waiver of any breach hereunder shall not thereafter waive any other terms, conditions, or privileges whether of the same or similar type.
Limit on Purchaser’s Liability
Status of Limitations – In no event shall Purchaser be liable for anticipated profits or for incidental or consequential damages. Purchaser’s liability on any claim of any kind for any loss or damage arising out of or in connection with or resulting from this agreement or from the performance or breach thereof shall in no case exceed the price allocable to the goods or services or unit thereof which gives rise to the claim. Purchaser shall not be liable for penalties of any description. Any action resulting from any breach on the part of Purchaser as to the goods or services delivered hereunder must be commenced within one year after the cause of action has accrued.
Compliance with Laws
Seller agrees that all goods shipped to the Purchaser under this agreement will be produced in full compliance with all applicable laws including, but not limited to, the Fair Labor Standards Act.
Choice of Law
This purchase order and any contract formed hereunder, shall be governed by, and construed under the internal laws of the State of California, without regard to principles of conflict of law, as the same may be from time to time in effect, including, without limitation, the Uniform Commercial Code as in effect in the State of California.
Seller Compliance
The Seller agrees to comply with the following:
A) Executive order 11246 as amended and all regulations promulgated pursuant to that Executive Order including but not limited to the provisions of paragraphs (1) through (7) of the “Equal opportunity Clause” and the “Certification of Non-segregated Facilities” each of which is incorporated herein by reference.
B) Section 503 of the Rehabilitation Act of 1973 including the applicable parts of the affirmative action clause entitled “Affirmative Action for Handicapped Workers” (41 CFR 50-741.4) incorporated herein by reference, and
C) The Vietnam Era Veterans Readjustment Assistance Act (30 USC 2012) including the applicable parts of the affirmative action clause entitled “Affirmative Action for Disabled Veterans and Veterans of the Vietnam Era” (41 CFR 60-250.4) also incorporated herein by reference
Supplier Quality Assurance Provisions:
QUALITY MANAGEMENT SYSTEMS: –Seller is required to maintain a quality system that complies with the requirements of ISO 9001 Quality Management Systems Requirements. Buyer reserves the right to conduct surveillance at Seller's facility to verify the existence, adequacy, and effectiveness of the quality system, along with Seller’s awareness of contribution to product conformity.
Subtier Flow-Down: The Supplier will flow down to their sub-tier Suppliers all applicable requirements of this purchase order, to include drawings, current specifications and key characteristics, and Government Furnished Property.
Record Retention: Seller shall maintain records of inspections, tests, and process controls called for by this contract. Unless extended record retention requirements are specified elsewhere in this contract or attachments, (e.g. drawings, management reports, etc.) these documents shall be on file and available to Buyer for four (7) years following the end of the calendar year in which the final entry was made or three (6) years after the final payment under this contract, whichever expires first. At any time during the retention period, at Buyer’s request, Seller will deliver said records, or any part thereof, to Buyer, at no additional cost to Buyer.
RECEIVING INSPECTION: Items supplied on this Purchase Order are subject to sampling inspection in accordance with an acceptable C=0 Sampling Plan.
Should the inspection lot fail the sampling plan, the entire lot will be rejected and may be returned for 100% screening at the Supplier's facility. Should the inspection sample indicate that there are acceptable units in the lot, and it is determined that they are urgently needed to meet Sel-Tech's schedule commitments, the 100% screening may be accomplished by Sel-Tech.
Consumables: SHELF LIFE - Any material subject to reliability and/or quality degradation with age, shall be marked in such a manner as to indicate the date on which shelf life was initiated and/or when useful life is expended (expiration date). Unless authorized by the Buyer, no material which has less than 80% of the shelf life remaining will be accepted.
SAFETY DATA SHEETS (SDS) - All chemical materials, solutions, mixtures, compounds and formulations including proprietary products must be supplied with Safety Data Sheet (SDS) in accordance with 29 CFR 1910.1200, Appendix D, listing all toxic and hazardous components and required information for a SDS. This requirement applies only to the initial shipment of supplies and thereafter, only when required to update the Safety Data Sheet information, or when a material composition change occurs.
WIRE AND CABLES - All wire and cable must be delivered as a single run WIRE with no knots or splices.
CERTIFICATE OF CONFORMANCE: Seller shall include a Certificate of Conformance (C of C) with each shipment for items identified on the shipping document. This document shall certify that all supplied material meets or exceeds all of the processing, inspection, test and analysis requirements of the Purchase Order and any other referenced or sub tier documents. The C of C shall also certify that all of the required tests, inspections and analyses have been successfully completed and that the resulting data has been retained on file and is available for review upon request for a minimum of 7 years. At a minimum, Seller's C of C shall include:
1.) Seller's name and address and reference to Buyer's contract number and line item number.
2.) Part number and dash number (as applicable) of the PO line along with quantity for each item. (Include type, grade, class and/or value, as applicable)
3.) Batch identification for the item(s) such as date codes, lot codes, serializations, or other batch identifications.
4.) When multiple item manufacturers (or service providers) and/or multiple lots are included in one shipment, Seller shall separate and identify respective manufacturer’s (or service provider’s) lots, and indicate each lot quantity.
5.) Revision level / version (as applicable) to which the Goods were manufactured (or serviced).
6.) If seller is not the Original Equipment Manufacturer (OEM), as part of the C of C, they must provide a statement proving they are an authorized reseller, along with the manufacturer name, address, and country of origin. The seller shall retain the manufacturer’s C of C at its facility for 7 years from completion of this contract, or such other period as required elsewhere in this Contract, and make such documentation available to Buyer at its request.
7.) Signed or stamped and dated statement attesting that Goods provided under this contract conform to all purchase order requirements. Note: Seller's C of C information may be included as part of Seller's established shipping document.
REPORTING AND SHIPMENT OF NONCONFORMING GOODS: Seller shall maintain a documented process that identifies and controls nonconforming goods. Shipment of goods containing nonconformities is not allowed until all disposition actions have been properly completed. When nonconforming material is identified, Seller shall notify Buyer of any proposed "Repair" or "Use-As-Is" dispositions. Seller must submit proposed "Repair" or "Use-As-Is" dispositions for Buyer/Customer disposition prior to shipment. If Seller is uncertain as to the effect of the nonconformity on customer-specified requirements, contact the Buyer's Authorized Procurement Representative. Nonconformities, including those that occur at Seller's subcontractors which do not affect customer-specified requirements may be dispositioned by Seller. Seller shall take prompt and effective action to correct and prevent recurrence of all nonconformities, inclusive of those that occur at Seller's subcontractors. Seller shall submit a copy of Seller's internal nonconformance report to the Buyer.
ELECTROSTATIC DISCHARGE SENSITIVE (ESD): Note: This clause applies to Electrostatic Sensitive Devices (ESD) ONLY To contribute to product preservation, Seller shall have an ESD control program in effect to protect semi-conductors and sensitive parts that can be affected by an ESD event, during manufacturing, inspection/test, packaging, shipping, rework, and/or failure analysis. The ESD Control Program shall conform to ANSI/ESD S20.20. ESD parts/assemblies must be marked with MIL-STD-129 sensitive electronic device symbol. Packaging must be marked with the MIL-STD-129 ESD caution label. "CAUTION-OBSERVE PRECAUTIONS FOR HANDLING ELECTROSTATIC SENSITIVE ITEMS.
Awareness: The organization shall plan, implement, and control the processes needed to assure product safety during the entire product life cycle, as appropriate to the organization and the product.
The seller’s organization shall plan, implement, and control the processes needed to ensure that persons are aware of their contribution to product or service conformity, product safety and the importance of ethical behavior.
COUNTERFEIT GOODS - ELECTRONIC PARTS: With regard to any Electrical, Electronic, and Electromechanical (EEE) Part procured by or on behalf of Seller for the Goods, Seller shall have a counterfeit electronic parts control plan that meets the intent of SAE standard AS5553A or AS6496 (Fraudulent/Counterfeit Electronic Parts: Avoidance, Detection, Mitigation, and Disposition, adopted by Department of Defense (DoD) March 28, 2017) and the minimum system criteria listed in DFARS 252.246-7007(c). Seller must also meet the following additional requirements:
• If Buyer or Seller suspects that Seller has procured counterfeit electronic parts, Seller shall quarantine such parts and make them available for investigation by appropriate U.S. Government authorities. Seller shall also notify buyer in writing within 5 days if a counterfeit part(s) has been detected within sellers inventory or incoming inspection.
• Seller shall procure electronic parts from the Original Component Manufacturer (OCM) or its authorized (or franchised) distributor. In the event that Seller cannot procure electronic parts from the OCM or its authorized (or franchised) distributor, Seller shall meet the minimum documentation requirements of Sel-Tech and obtain Buyer's written approval prior to procuring electronic parts or prior to the utilization of any parts from any party other than the OCM or its authorized (or franchised) distributors. Buyer approval in writing will be provided within 5 days. With such request, Seller shall provide a plan for inspecting and testing such parts to ensure that they do not constitute Counterfeit Goods.
• Seller shall maintain all traceability and OCM-compliance documentation for electronic parts at its facility for 7 years from completion of this contract, or such other period as required elsewhere in this Contract, and make such documentation available to Buyer at its request.
• Seller shall include the substance of this article, including this flowdown requirement, in all subcontracts awarded by Seller for work under this Contract.
CALIBRATION SYSTEM AND NOTICE OF SIGNIFICANT OUT-OF-TOLERANCE CONDITIONS: The following requirements are applicable to this contract and are in addition to any other measurement and test equipment control requirements imposed by this contract:
1. Adequacy of the Calibration System: The Seller shall maintain a system that complies with the requirements of a Quality Management Systems which evaluates the adequacy of their calibration system based on out-of-tolerance data as a result of calibrating the measuring and test equipment. This system shall include, but not be limited to, adjustment of calibration frequency, adequacy of the measuring or test equipment, calibration procedures and measuring or test procedures. The Seller's system shall specifically identify, and prevent the use of any measuring and test equipment that does not perform satisfactorily.
2. Notification of significant out-of-tolerance conditions: Seller’s system shall define a significant out-of-tolerance condition as any condition beyond 2 times the required accuracy. Seller’s system shall include the requirement for notification of measurement and test equipment users, or other appropriate Seller elements, of significant out-of-tolerance conditions so appropriate actions can be taken to correct possible nonconforming goods.
CONTROL OF CHANGES: (This clause does not apply to distributors of COTS items.) Seller, the manufacturer agrees not to make any changes in materials or design details that would affect the part with regard to (A) part number identification, (B) physical or functional interchangeability, (C) repair and overhaul procedures and processes and material changes that affect these procedures, without notification of the Buyer, and without revising the part number and the originals of all drawings or data affected by the change. Copies of the revised drawings or data shall be forwarded to Buyer upon request. Seller further agrees to insert this clause in Seller’s subcontracts for Seller purchased equipment whether such equipment is supplied to Seller as an end item or as a component part of an end item.
OBSOLESCENCE: (This clause does not apply to distributors of COTS items.) Obsolescence is defined as occurring when an indentured electronic component is no longer in production by the original manufacturer. Diminishing Manufacturing Sources (DMS) is defined as an item out of production other than an indentured electronic component and is outside this flow down. If an obsolescence issue occurs, the Seller shall notify the Buyer of this condition upon identification. Seller assumes responsibility for identification, notification, and resolution of obsolescence issues to Buyer. The Seller shall immediately define the shortage by providing the Buyer with the indentured electronic component manufacturer part number (OEM), affected end item part number, affected end item nomenclature, and components per end item. The Seller shall provide satisfactory evidence that a prudent effort was made to identify and implement an alternate part (i.e. parts that are technically and physically compatible with hardware design.). If an alternate part was implemented, the Seller shall provide the alternate manufacturer part number (OEM). If an alternate part was not identified and implemented, the Seller shall determine whether there is an opportunity for a last time buy. The Seller shall provide the last time buy date and notification, attrition rate of indentured electronic component, replacements to date of indentured electronic component, and SPEC mean time between failures of indentured electronic component to Buyer.
PACKAGING INSTRUCTIONS: General Instructions: Packaging specified or referenced in this contract must be adhered to unless written deviation is authorized by Buyer. Non-conforming packaging is subject to rejection or repackaging at Seller's expense. Questions concerning these packaging instructions are to be directed to the Buyer Procurement Agent.
Part Packaging Instructions:
1. Commercial packaging is normally acceptable for shipment to buyer. Seller is responsible for selecting packaging methods and materials which provide adequate protection at minimum cost and meet the requirements specified herein. Seller should select packaging methods and materials that consider, as a minimum, fragility, part composition, surface finish, size, weight, and transportation mode. It is acceptable for parts being procured under multiple contract line items to be packed in the same shipping container if they are being delivered to the same building address with the same dock number address. However, each contract line item's parts must be packaged and identified separately. All hazardous materials and/or dangerous goods shipments shall comply with all packaging, marking and labeling requirements contained in 49 CFR and international modal regulations, as required.
2. Two or more shipping containers and/or a total weight exceeding 150 pounds must be combined into a unitized load. The limit size of unitized loads is 50" overall height, 42" x 48" pallet (double deck construction) and a maximum 4" overhang on any side. Unit loads must be properly stacked and bound (i.e., efficient stacking pattern) and bound by stretch wrap. Containers over 150 lbs. and/or 60" or greater foot print, must integrate 4-way entry skid permitting the use of standard material handling equipment. Also, each contract line item's parts that exceed 27 cubic inches in volume shall be packaged individually. Some containers are subject to receiving inspection. Therefore, all shipping containers shall provide a recloseable feature.
3. Primary packaging of parts shall consist of the following unless a more specific requirement is incorporated in this contract by another special condition:
a) Pack each contract line item's part(s) in a four (4) mil or greater clear plastic bag or vacuum-packed bag so that the part number is visible and quantity can be verified.
b) Cushioning between bags of parts, when required, shall be of sufficient density and thickness to adequately protect the part, and shall be positioned outside of the plastic bag so that the part number is still visible.
c) Interleaving between parts, or reusable cushioned bags is preferred. For painted parts, interleaving with foam or paper wrap is acceptable and encouraged where possible. If interleaving is not possible, cushioning shall be secured in such a manner as to minimize damage to the package if opened for inspection or use at Buyer's facility.
d) In all cases, care should be taken to prevent damage to parts.
e) When wooden containers are used the preferred method of closure, in order, is: KLIMP fasteners with banding; container construction and banding to prevent opening; screws; and nailing. Note, when using screws or nailing, spacing should be no closer than six (6) inches. The number of fasteners and distance should be adequate enough to prevent accidental opening. Additionally, the use of staples for closure of wooden containers is prohibited.
4. For housekeeping reasons the following items are prohibited: staples used for closing bagged parts; loose fill packaging material, i.e. plastic peanuts, unless contained in a polyethylene bag or similar method.
Packaging Identification Instructions: Seller shall provide adequate and proper identification for all packaged contract items and shipping containers. This identification shall be provided by packing sheets. Packing sheets shall be supplied for each shipping container and contain the following information: Shipping address to include building number; shipping container's total weight; number of boxes; date shipped; shipper number; each contract number and contract line item number; each part number; and each part name; each quantity shipped. When applicable, the packing sheet must also include the appropriate control numbers, (i.e., serial, lot, batch, roll, heat lot, heat treat, etc.) and cure/manufacturing date. All other associated paperwork, (i.e., certifications, test reports, MRD's etc.) must be located within the shipping containers. Seller shall submit two copies of the packing sheet as follows: one copy loose packed in the shipping container and one copy of the packing sheet attached to the exterior of the shipping container in such a way to permit easy removal. Packaging variances for
Parts Delivered by a Local Conveyance: This variance applies to packaging and identification for those parts that are delivered by Seller-owned conveyance or by a local cartage company. The above requirements shall be followed except as noted in this section.
1. A recloseable feature for shipping containers is optional.
2. Containers are permitted to be open, but parts must be secured to prevent damage or loss during transit.
3. Each contract line item's parts that exceed 64 cubic inches in volume or one (1) pound in weight shall be packaged individually. If such part is less than 64 cubic inches and less than 1 pound they may be packaged in multiples in one plastic bag or shipping container.
