1) ACCEPTANCE. Upon acknowledgement or commencement of performance by Seller, this Purchase Order (“Order”) becomes the exclusive agreement and supersedes any and all prior or contemporaneous communications or agreements between ZincFive, Inc. and its subsidiaries (Buyer) and the Seller listed on the PO pertaining to its subject matter, except to the extent inconsistent with another written agreement signed by both parties, if any. This Order is expressly conditional upon Seller’s assent to the terms and conditions of this Order, and any additional or different terms proposed by Seller are rejected unless expressly agreed to in writing by Buyer.
2) PACKING / SHIPPING / DELIVERY DOCUMENTS. Unless otherwise specified or agreed to by Buyer in writing:
a) All packing and crating by Seller shall be in compliance with carrier’s tariffs and in containers suitable for protection in shipment and storage, from exposure and in handling with a mechanical device.
b) Seller will externally mark each container with necessary lifting, loading, and shipping information, including the Order number, date of shipment, name and address of Buyer and Seller, and other packing slip information and, if required, bar coding.
c) Each shipment must include a complete packing list specifying applicable Order number, Line-item number, Buyer’s Part number, Revision number, Manufacturer’s Part number (if any), date of shipment, requester’s name, and quantity of goods shipped.
d) All invoices and bills of lading must include Buyer’s Order number.
e) The price(s) include all charges for Seller’s packing and crating. Seller will bear the expense of any premium transportation charges.
f) All shipments shall be F.O.B. (or, in the case of international shipments, DDP (Delivered Duty Paid – Incoterms 2020)) Buyer’s location designated on the face of this Order. Title and risk of loss or damage shall not pass to Buyer until receipt by Buyer of the goods at the applicable delivery point. If applicable, Seller will assign duty drawback rights to Buyer.
g) Seller will timely provide Buyer with material safety data sheets and other documentation reasonably necessary to enable Buyer to comply with applicable laws and regulations. Upon Buyer’s request, Seller will promptly provide Buyer with a statement of origin for all items and with applicable customs documentation for items wholly or partially manufactured outside of the country of import.
h) Any losses accruing from deviation from Buyer’s routing instructions, shall be charged to Seller’s account. Upon Buyer’s request Seller shall forward to Buyer, with the invoice, the express receipt or bill of lading, signed by the carrier, evidencing the fact that shipment was made.
3) PRICE; PAYMENT.
a) This Order shall not be filled at higher prices than specified herein. If price terms are omitted from the face hereof, the price of the goods / services shall be lower of i) the price last quoted to or paid by Buyer (whichever is later), or ii) the prevailing market price at the time of shipment.
b) Further, Seller warrants that the prices specified in this Order do not exceed prices charged for like quantities of the same or substantially similar goods to any other purchaser. If Seller sells goods covered by this Order to other customers at prices less than those set forth herein, Seller shall accordingly lower the price of any goods sold to the Buyer and provide Buyer with a credit for any such goods sold to Buyer (for the difference between the price sold to Buyer and the lowest price the goods were sold to others) during the period in which Seller was selling such goods at the lower price.
c) Unless otherwise provided herein, the price(s) include all applicable federal, state and local taxes, duties, tariffs and other governmental charges in effect on the date of this Order. In case of the repeal of taxes or the reduction of rates, prices shall be adjusted accordingly.
d) Unless otherwise agreed in writing by Buyer, invoices shall be sent no earlier than the date on which each delivery is made, or services are provided.
e) Payment terms are printed on the face of this Order.
f) Buyer shall have the right at any time to set-off any amount owing by Seller to Buyer against any amount due and owing to Seller under this Order.
4) QUALITY CONTROL AND INSPECTION. Seller shall provide and maintain a quality control system acceptable to Buyer. All goods may be subject to inspection or verification during manufacture or otherwise prior to shipment, and final inspection and acceptance at destination, notwithstanding any prior payment or inspection and acceptance. If the goods are defective or otherwise not in conformity with the requirements of this Order, Buyer may (i) rescind this Order in whole or in part; (ii) accept such goods at an equitable reduction in price; or (iii) reject such goods and require the delivery of replacements. If goods are rejected, the Seller will provide the Buyer with a return material authorization (RMA) number upon notification of rejection, and Buyer will return such goods at Seller’s risk and expense (including transportation both ways). Rights granted under this Section to Buyer are in addition to any other rights or remedies provided elsewhere in this Order or by law.
5) DELIVERIES AND RESCHEDULES.
a) Buyer’s production schedules are based upon Seller’s understanding and agreement that goods and/or services will be delivered to Buyer on the date specified on the face of this Order, and therefore TIME IS OF THE ESSENCE with respect to Seller’s obligations pursuant to this Order. Seller shall promptly notify Buyer if Seller is unable to make any scheduled delivery and state the reason why. If any delivery of goods or performance of services is not made at the specified time, Buyer may cancel all or part of the Order, purchase the goods or services elsewhere, and hold Seller accountable for costs incurred with respect thereto.
b) Upon fifteen (15) days written notice to Seller, Buyer may reschedule any shipment in whole or in part at no additional charge to Buyer.
c) Any goods delivered in advance of the delivery schedule may, at Buyer’s option, either be returned to Seller (collect) for proper delivery or be accepted with payment in accordance with Section 3(d) above. Seller must notify Buyer of any early delivery in advance.
6. WARRANTY. Seller warrants and represents that all goods furnished under this Order are and will (a) be free from defects in material and workmanship, (b) be free from design defects (except to the extent such goods comply with detailed designs provided by Buyer), (c) comply with applicable specifications, drawings, samples, and descriptions, (d) unless otherwise specified in this Order, be new and not used or reconditioned (date coded components shall
not be greater than one (1) year old from Seller’s scheduled delivery date), (e) be merchantable, (f) be suitable for the particular purpose or use for which they are purchased by Buyer (if Seller knows or has reason to know of Buyer’s intended purpose or use therefor), (g) not infringe on intellectual property rights of any third party, and (h) not contain or be manufactured with any substances that are prohibited by law or in amounts not permitted by regulation. Buyer’s approval of Seller’s designs and/or selections shall not relieve Seller of its obligations herein. All warranties of Seller shall survive inspection and acceptance and shall run to Buyer and its customers. Seller shall indemnify and hold harmless Buyer from and against any and all damages, losses, demands, costs and expenses incurred by Buyer or Buyer’s customers arising out of or relating to Seller’s breach of its warranties hereunder.
7) CHANGES. Buyer may, from time to time, make changes in any one or more of the following: (a) specifications, designs, drawings, and data, where the items to be furnished are to be manufactured in accordance with Buyer’s designs; (b) quantity or type of goods or services; (c) methods of shipment or packing; (d) testing; and (e) place of delivery. If any such change causes an increase or decrease in the costs of or the time required for Seller’s performance, Seller shall immediately notify Buyer (and in any event within thirty (30) days of the change order or be forever waived), and the parties will agree upon an equitable adjustment in prices or other terms, which shall be set forth in a written amendment to this Order. No such adjustment shall be binding on Buyer unless agreed to in writing by Buyer. After Buyer’s approval or acceptance of the initial qualification prototypes of the goods, Seller shall not make any changes in the design, material or processes that may affect the form, fit, function, interchangeability, quality, or reliability of the goods without prior written consent of Buyer’s Commodity Manager.
8) RESPONSIBILITY FOR PROPERTY AND TOOLING.
a) Seller shall be liable for any loss or destruction of, or damage to, property of Buyer caused by the negligence or wrongful acts or omissions of Seller or Seller’s representatives, agents, or employees.
b) Title to property furnished to Seller by Buyer or paid for by Buyer either directly or indirectly as part of the unit price of the goods, shall remain with Buyer. Seller shall not alter or use such property for any purpose other than in performing an Order for Buyer without the express written consent of Buyer. Seller agrees to store, protect, preserve, repair, and maintain such property in accordance with sound commercial practice. Seller shall insure Buyer’s interest in such property against loss or damage to an amount equal to the full replacement cost. Seller shall provide Buyer with Seller’s Certificate of Insurance stipulating Buyer as an additional loss payee under the Seller’s insurance policy.
9) INDEMNIFICATION.
a) If Seller, its employees, agents, subcontractors, or representatives enter premises occupied by or under the control of Buyer or third parties in the performance of this Order, Seller shall indemnify and hold harmless Buyer from any and all costs, damages, expenses, or liabilities by reason of property damage or personal injury to any person, including Seller’s employees, of whatsoever nature or kind arising out of, as a result of, or in connection with such performance occasioned in whole or in part by the actions or omissions of Seller, its employees, agents, subcontractors, or representatives. If requested by Buyer, Seller shall also defend Buyer against any claims, suits or proceedings relating thereto. Without in any way limiting the foregoing,
Seller and its subcontractors shall maintain commercial general liability and property damage insurance in reasonable limits covering the obligations set forth above and shall maintain proper Workman’s Compensation insurance covering all employees performing this Order.
b) Seller shall fully comply with all applicable federal, state, and local laws, regulations and ordinances in its manufacture and sale of goods and performance of services. Seller shall indemnify and hold harmless Buyer from any loss, claim, damage, liability, expense, or cost arising out of or relating to Seller’s non-compliance or any other negligence or wrongful acts or omissions by Seller or those acting on Seller’s behalf. If requested by Buyer, Seller shall also defend Buyer against any claims, suits or proceedings relating thereto.
10) CONFIDENTIALITY OF BUYER’S DATA; PUBLICITY.
a) Seller shall not use or disclose to third parties any data, designs, or other information belonging to or supplied by or on behalf of Buyer (“Buyer Information”), without first obtaining the prior written authorization of Buyer. Upon Buyer’s request, all Buyer Information, including all copies thereof, shall be returned to Buyer. If any Buyer Information is furnished to Seller’s suppliers for procurement of goods by Seller for use in the performance of Buyer’s Orders, Seller must first obtain binding commitments from such suppliers to protect Buyer’s rights in, and to maintain the confidentiality of, such Buyer Information, consistent with this Order.
b) Seller may not use Buyer’s name, logo, trademarks or service marks in advertisements or other marketing materials nor otherwise disclose the existence or content of this Order without the Buyer’s prior written consent.
11) ASSIGNMENT.
a) Seller shall not delegate or subcontract any duties, nor assign this Order or any rights or claims under this Order, whether by operation or law or otherwise, without prior written consent of Buyer, and any such attempted delegation or assignment shall be null and void.
b) This Order shall be binding upon and inure to the benefit of each party and its successors and permitted assigns.
12) NON-INFRINGEMENT; IP RIGHTS. Seller warrants and represents to Buyer that the manufacture, sale, distribution or use of goods furnished hereunder do not and will not infringe any United States or foreign patents, trademarks, trade names, copyrights, trade secrets or other intellectual property and proprietary rights (“IP Rights”), and Seller shall indemnify and hold Buyer and its customers harmless from any expenses, loss, cost, damage, or liability which may be incurred arising out or of relating to such infringement or alleged infringement of IP Rights with respect to such goods. Seller shall defend, at its own expense, any action or claim in which such infringement is alleged, provided Seller is notified within a reasonable time of such action or claim against Buyer. Indemnification shall not apply to infringements arising from (a) use of the good supplied by Seller in combination with other goods not supplied by Seller where infringement would not have occurred from the normal use for which the good was designed, or (b) Seller’s compliance with detailed designs originated and furnished by Buyer. Buyer shall have a non-exclusive, royalty-free license under Seller’s IP Rights to use and resell the goods furnish hereunder, and to use and reproduce Seller’s applicable literature, such as operating and maintenance manuals, technical publications, and other similar support documentation and sales literature. If this Order includes experimental development or research effort and such work is paid for in whole or in part by Buyer, Seller agrees to disclose to Buyer all confidential processes, know how, trade secrets, inventions and other work product relating
thereto. Upon request, Buyer agrees to assign, and hereby does irrevocably assign, to Buyer any and all IP Rights in and to such work product.
13) LIMITATION OF LIABILITY. Buyer’s liability shall be limited to the unpaid balance of amounts due under this Order. IN NO EVENT SHALL BUYER BE LIABLE TO SELLER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR SPECIAL DAMAGES.
14) GOVERNING LAW; DISPUTES. This Order shall be governed by and interpreted in accordance with the laws of the State of Oregon, excluding its conflict of laws provisions. Exclusive venue for any dispute arising under or relating to this Order shall be in the state and local courts located in and serving Portland, Oregon, USA. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. Any dispute under this Order which is not disposed of by agreement of the parties shall be decided by a court of competent jurisdiction. Pending settlement of final decision of any such dispute, Seller shall proceed diligently with the performance of this Order in accordance with Buyer’s direction.
15) TERMINATION. In addition to Buyer’s right to rescind or cancel this Order as provided herein, Buyer may terminate this Order (i) for Seller’s breach that is not cured within ten (10) days after written notice thereof; (ii) immediately in the event of any proceedings in bankruptcy or insolvency by or against Seller, or in the event of any assignment for the benefit of creditors or the appointment of a receiver, in either case with or without Seller’s consent; or (iii) at any time for Buyer’s convenience and without cause.
a) Seller shall cease work immediately upon receipt of notice of termination, and Seller shall use its best efforts to mitigate any termination charges, including selling such goods to other customers.
b) All claims for termination charges shall be made in writing within thirty (30) days of Seller’s receipt of notice of termination. Buyer’s liability for any such termination charges shall not exceed the actual cost of unique raw materials (RM), work in process (WIP) or finished goods (FG).
c) Buyer shall only be responsible for any termination charges if Buyer terminated this Agreement, or portion thereof, for its convenience pursuant to clause (iii) above. Notwithstanding the foregoing, in no event shall Buyer be liable for termination charges (y) for standard goods and / or materials or (z) if Buyer gave prior written notice of termination for the lesser of thirty (30) calendar days or agreed upon lead-time prior to scheduled delivery date(s).
d) Buyer shall have the right to audit all material inventory and relevant documents relating to any termination charges. Upon payment of termination charges, and upon Buyer’s request, Seller shall deliver to Buyer, and shall transfer to Buyer title in and to, all RM, WIP and FG.
16) COMPLIANCE WITH LAWS
If this Order is placed under a U.S. Government contract / subcontract, at any tier, all provisions of the Federal Acquisition Regulations (FAR) and other Government agency regulations contained or incorporated by reference in Buyer’s Government contract / subcontract hereby apply to and are incorporated by reference in this Order. Seller shall comply, at its sole expense, with all applicable statutes, regulations, rules, ordinances, codes and standards (Laws) governing the manufacture, transportation, import, export or sale of Items or the performance of Services covered by this Order anywhere in the world. Without limiting the foregoing, in the United States (U.S.) this includes all applicable commerce, environmental, occupational safety,
transportation and securities laws and all employment, labor, and immigration laws governing Seller’s personnel providing Services to Buyer. Neither Seller nor any of its subsidiaries will export/re-export any technical data, process, product, or service, directly or indirectly, to any country for which the U.S. government or any agency thereof requires an export license or other government approval without first obtaining such license. For services in the U.S., Seller agrees not to provide foreign nationals (non-U.S. citizens or U.S. permanent residents) from controlled countries as employees or contractors for work on any Buyer site. Seller shall obtain all such approvals, authorizations, permits and licenses and shall indemnify and hold Buyer harmless from any failure to comply with such requirement. For purposes of this section of the terms and conditions, “Anti-Corruption Laws” means, both collectively and separately, any anti-corruption, anti-bribery or similar governmental ethics and transparency laws that have particular jurisdiction or that govern the Order in any general manner. Although Seller and Buyer are each responsible for determining the extent and applicability of Anti-Corruption Laws, the US Foreign Corrupt Practices Act of 1977 (the “FCPA”) and the UK Bribery Act 2010 are both expressly included in the scope of “Anti-Corruption Laws” regardless of Buyer’s or Seller’s actual residency or the actual location that services are performed and received or that goods are made, delivered, and received under the Agreement. Seller and Buyer each represent to the other that, with respect to the products and services in this Order and Seller’s and Buyer’s respected business that are involved in it, they have not violated, and will not violate, any Anti-Corruption Laws.
17) GENERAL. If any provision of this Order is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, all other provisions remain in full force and effect. All waivers must be in writing, and no waiver of any rights shall be deemed to be a waiver of the same or other right on any other occasion. The provisions of sections 4, 6, and 8 through 17 shall survive expiration or termination of this Order.
Rev: May 2022
ZincFive, Inc. ©2022