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Purchase Order Terms and Conditions
Seller and Cal Amp Corp. or any affiliate of Cal Amp Corp. (“Buyer”) agree to be bound by all terms and conditions contained herein, all of which are a part of each purchase order issued to Seller by Buyer (“Order”) and should be carefully read. Seller agrees to follow the shipping, invoicing and billing instructions issued by the Buyer. Any provisions in Seller’s quotation forms, sales forms or the like which are inconsistent with the provisions of this Order shall be of no force or effect. The cost price set forth in each Order includes the cost of manufacturing, packaging, labeling and shipping unless otherwise specified in the Order.
ACCEPTANCE: This Order may be accepted by Seller returning to Buyer a signed copy hereof otherwise acknowledging Seller’s acceptance in writing and in accordance with the terms and conditions contained on the Order. Seller’s commencement of or promise of shipment of the goods and services in accordance with the terms and conditions of this Order. Acceptance of this offer to purchase by acknowledgment, shipment, or other performance shall be unqualified, unconditional and subject to and expressly limited to the terms and conditions of this agreement. All previous offers by Seller are hereby rejected. Buyer shall not be bound by terms additional to or different from those in this Order that may appear in Seller’s quotations, acknowledgment, invoices or in any other communications from Seller, unless such terms are expressly agreed to in writing, signed by Buyer. Acceptance of materials, work or services, payment or any inaction by Buyer’s consent to or acceptance of any such terms, additional or different terms inserted in this Agreement by seller, or deletions thereto, whether by alteration, addenda, or otherwise, shall be of no force and effect, unless expressly consented to by Buyer in writing. Estimates or forecasts furnished by Buyer shall not constitute commitments. Upon acceptances, the terms contained in this Order shall constitute the entire agreement between Seller and Buyer with respect to the subject matter of this Order, superseding all contemporaneous oral agreements and prior oral and written quotations, communications, agreements and understanding of the parties, and may not be modified or rescinded except by a writing signed by Seller and Buyer.
TERMINATION FOR CAUSE: Buyer reserves the right to cancel this Order or any part hereof for cause in the event of any default by the Seller at any time prior to completion or in the event Seller breaches or fails to perform any of its obligations in any material respect, or in the event Seller becomes insolvent or proceedings are instituted by or against Seller under any federal or state bankruptcy or insolvency law or Seller ceases to operate in the normal course of business. Seller agrees not to charge or assess any form of cancellation charges or restocking fees upon Buyer due to the cancellation of this Order. Seller agrees not to require Buyer to purchase any cancelled items not completed and/or items ready to be delivered at the time written notice of cancellation is mailed to Seller. Further, no claims shall be made for anticipatory profits or other damages resulting from cancellation of this Order. Where such cancellation is through the fault of Seller, Buyer, at its option, and without waiving any of its rights to recover damages or losses sustained, may accept the completed portion of this Order and pay for the same at the contract price, or may place the entire Order elsewhere and charge Seller the difference in the cost thereof to Buyer. Seller further agrees not to demand or access any cancellation charges of any form and to reimburse Buyer for any shipping or freight expenses billed or paid by Buyer if goods are not acceptable and must be returned to Seller. If it should be determined that Buyer has improperly terminated this contract for default such termination shall be deemed for convenience.
TERMINATION FOR CONVENIENCE OF BUYER: Buyer 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 not be paid for any work done after receipt of the notice of the termination, nor, for any costs incurred by Seller’s suppliers or subcontractors which Seller could reasonably have avoided. Seller shall not unreasonably anticipate the requirements of this Order.
ADVERTISING: Seller should consider all information furnished by Buyer 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 without first obtaining the written consent of Buyer. Seller shall not in any manner advertise or publish the fact that Seller has furnished or contracted to furnish to Buyer the goods or services herein mentioned, nor shall any information relating to the Order be disclosed without Buyer’s written permission. Seller shall make no use of any identification of Buyer, or their affiliated companies in its advertising or promotional efforts in reference to activities undertaken by Seller under this Agreement without Buyer’s prior written consent. The term “identification” includes any trade name, trademark, service mark, insignia, symbol, or any simulation thereof, and any code, drawing, specification, or evidence of Buyer's inspection. Seller agrees to remove any such identification prior to any sale, use or disposition of material or equipment rejected or not purchased by Buyer, and shall indemnify Buyer and their affiliated companies against any claim arising out of Seller’s failure to do so.
USE OF INFORMATION: Any specifications, drawings, sketches, models, samples, tools, computer or other apparatus, programs, technical or business information or data, written, oral or otherwise, owned or controlled by Seller (“Information”) furnished to or acquired by Seller under this Order, or in contemplation of this Order, shall remain Buyer’s property. All copies of such Information in written, graphic or other tangible form shall be returned to Buyer at its request. Unless such Information was previously known to Seller free of any obligation to keep it confidential, or has been or is subsequently made public by Buyer or a third party, it shall be kept confidential by Seller, shall be used only in performing under this, Agreement, and may not be used for other purposes except upon such terms as may be agreed upon between Seller and Buyer in writing.
ASSIGNMENT AND SUBCONTRACTING: Seller may not assign this Order, or any portion thereof, except that Seller may, upon the prior written consent of Buyer, assign claims for monies due or to become due hereunder provided in such event Seller shall supply Buyer promptly with two copies of any such assignment, and provided further, that payment to any claim shall be subject to set off or recoupment for any present or future claim or claims where Buyer may have against Seller. Seller agrees to obtain Buyer’s approval before subcontracting this Order or any portion thereof; provided however that this limitation shall not apply to the purchase of standard commercial supplies or raw materials. Any attempted assignment or delegation in contravention of the above provisions shall be void and ineffective.
BUYER OWNED OR FURNISHED MATERIAL: Seller assumes complete liability for any Buyer-owned or Buyer-owed or Buyer-furnished tooling, articles and materials, unless furnished to Seller on a charge basis, in connection with this Order and Seller agrees to pay for all such tooling, articles and materials spoiled by it or not otherwise satisfactorily accounted for. Title to the aforesaid Buyer-owned or Buyer-furnished tooling, articles or materials shall at all times remain with Buyer. Seller is and shall be an Express Trustee for the benefit of Buyer of all such tooling, articles and materials.
BREACH OF CONTRACT: Seller shall be in breach of the terms of this Order if Seller fails to make delivery as called for herein, or Seller fails to perform any of Seller’s covenants and obligations set forth herein or should any warranty of Seller prove to be false or in the event of any of the following: insolvency of Seller, Seller’s filling of a voluntary petition in bankruptcy; filing of an involuntary petition to have Seller declared bankrupt; the appointment of a receiver or trustee for Seller’s assets; the execution by Seller of an assignment for the benefit of creditors of Buyer. The remedies provided in this section shall be in addition to any other remedies provided in this section shall be in addition to any other remedies provided in law or equity.
ATTORNEY’S FEES: By the acceptance of this Order, Seller agrees that in the event that Buyer be a part of any action arising out of, from or as the result of or predicated upon this Order, Seller shall pay to Buyer its reasonable attorney’s fees and court costs incurred in connection therewith.
CALIFORNIA CONTRACT AND JUISDICTION: The contract created by this Order shall be construed and enforced under the law of the State of California, county of Ventura. It is agreed the Seller hereby consents to the exclusive jurisdiction of the State of California courts in Ventura County.
COMPLIANCE WITH APPLICABLE LAWS, FAIR LABOR STANDARDS ACT, ETC.: Seller and all persons furnished by Seller shall comply at their own expense with all applicable federal, state, local and foreign law, ordinances, regulations and codes, including the identification and procurement of required permits, certificates, licenses, insurance, approvals and inspections in performance under this Agreement. Seller agrees to indemnify Buyer and its customers for any loss or damage that may be sustained by reason of any failure to do so. By acceptance this Order, Seller certifies that the materials and articles ordered hereunder will be produced in compliance with all applicable requirements of section 6, 7, and 12 of the Fair Labor Standards Act of 1938 as amended, and lawful regulations and orders of the Administration of the Wage and Hour Division issued under Section 14 thereof and the Labor Management Relations Act.
DEDUCTION AND SETOFF: Any sums payable to Seller shall be subject to all claims and defenses of Buyer, whether arising from this or any other transportation or occurrence, and Buyer may setoff and deduct against any such sums, all present and future indebtedness of Seller to Buyer. Buyer shall provide a copy of the deduction taken by Buyer against Seller’s account as a result of any returns or adjustments. Seller shall be deemed to have accepted each such deduction unless Seller, within ninety (90) days following receipt of the deduction voucher, notifies Buyer in writing as to why deductions should not be made and provides documentation for the reason given.
FORCE MAJEURE: Neither party shall be liable to the other party for any delay or non-performance by reason of act of God, fire, explosion, flood, windstorm, earthquake, trade embargoes, governmental regulations, war, civil unrest, or any other cause beyond such party’s reasonable control (a “Force Majeure Event”). The party whose performance is affected will use commercially reasonable efforts to develop a mutually acceptable work around plan in an attempt to minimize the impact of a Force Majeure Event. If any force majeure condition occurs, the party delayed or unable to form shall give immediate notice to the other party, stating the nature of the force majeure condition and any action being taken to avoid or minimize its effect, and the party affected by the other’s delay or inability to perform may elect to: (1) suspend this agreement for the duration of the force majeure condition and (1) at its option buy, sell, obtain or furnish elsewhere material or services to be bought, sold, obtained or furnished under the Agreement (unless such sale or furnishing is prohibited under this Agreement) and deduct from any commitment the quantity bought, sold, obtained or furnished for which commitments have been made elsewhere and (ii) once the force majeure condition ceases, resume performance under this Agreement with an option in the affected party to extend the period of this Agreement up to the length of time the force majeure condition endured and/or (2) when the delay or non-performance continues for a period of at least fifteen (15) days, terminate, at no charge, this Agreement or the part of it relating to material not already shipped, or services not already performed. Unless written notice is given within forty-five (45) days after the affected party is notified of the force majeure condition, (1) shall be deemed selected.
IMPLEADER: Seller shall not implead or bring an action against Buyer or its customers or the employees of either based on any claim by any person for personal injury or death to an employee of Buyer or its customers occurring in the course or scope of employment and that arises out of material or services furnished under this Order.
INFRINGEMENT: The following terms apply to any infringement or claim of infringement, of any patent, trademark, copyright, trade secret or other proprietary interest based on the manufacture, installation, normal use, lease or sale of any equipment, program, documentation, service or material (“material”) furnished to Buyer under this Order or in contemplation of this Order. Seller shall indemnify Buyer and its customers for any loss, damage, expense or liability that may result by reason of such infringement or claim, except where such infringement or claim arises solely from Seller’s adherence to Buyer’s written instructions or directions which involve the use of material other than (1) commercial material which is available on the open market or is the same as such material, or (2) material of Seller’s origin, design or selection: and Buyer shall so indemnify Seller in such excepted cases. Each party shall defend or settle, at its own expense, any action or suit against the other for which it is responsible under this clause. Each party shall notify the other promptly of any claim of infringement for which the other is responsible, and shall cooperate with the other in every reasonable way to facilitate the defense of any such claim.
INVOICING: Seller shall (1) render single invoices, or as otherwise specified in this Order, showing Order number, through routing and weight, (2) render separate invoices for each shipment within (24) hours after shipment and (3) mail invoices to the address shown on this Agreement or Order. Copies of bills of lading and shipping notice are to accompany all product/materials. If prepayment of transportation charges is authorized, Seller shall include the transportation charges from the F.O.B. point to the destination as a separate item on the invoice stating the name of the carrier used. No minimum billing charges are permitted unless expressly authorized in this Order.
INSURANCE: If and when requested by Buyer, Seller agrees to procure, at Seller’s sole cost and expense, a policy or policies of insurance in form satisfactory to the Buyer wherein Buyer shall be named insure, insuring all property on Seller’s premises owned by Buyer against loss or damage resulting from fire (including extended coverage), malicious mischief and vandalism. Satisfactory evidence of procurement and existence in full force and effect of such insurance shall be submitted to Buyer prior to the first shipment of goods and thereafter, upon request by Buyer. Seller shall obtain adequate insurance to cover its liability under each Order and shall provide copies of the applicable certificate(s) of insurance naming Buyer as an additional insured, prior to the first shipment of goods and thereafter, upon request of Buyer.
INSURANCE: Seller shall maintain and cause Seller’s subcontractors to maintain during the term of this Agreement (1) Worker’s Compensation Insurance as prescribed by the law of the state or nation in which the work is performed; (2) employer’s liability insurance with limit of at least $300,000 for each occurrence; (3) comprehensive automobile liability insurances if the use of motor vehicle is required, with limits of at least $1,000,000 combined single limit for bodily injury and property damage for each occurrence; (4) Comprehensive General Liability (“CGL”) insurance, including Blanket Contractual Liability and Broad Form Property damage, with limits of at least $1,000,000 combined single limit for personal injury and property damage for each occurrence; and (5) if the furnishing to Buyer (by sale or otherwise) of products or material is involved, CGL insurance endorsed to include products liability and completed operations coverage in the amount of $5,000,000 for each occurrence. All CGL insurance shall designate Cal Amp Corp., its affiliates, and their officers, directors and employees (all hereinafter referred to in this clause as “Buyer”) as an additional insured. All such insurance must be primary and required to respond and pay prior to any other available coverage.
Seller agrees that Seller, Seller’s insurance(s) and anyone claimed by, under or in Seller’s behalf shall have no claim, right of action or right of subrogation against Buyer and its customers based on any loss or liability insured against under the foregoing insurance. Seller and Seller’s subcontractors shall furnish prior to the start of work certificates or adequate proof of the foregoing insurance including, if specifically requested by Buyer, copies of the endorsements and insurance policies. Buyer shall be notified in writing at least thirty (30) days prior to cancellation of or any change in the policy.
PACKAGING AND TRANSPORTATION: Unless otherwise specified, goods are purchased F.O.B. destination. Deliveries shall be made as specified, without charge for boxing, crating, storage or any other charges unless otherwise specified. Material shall be suitably packed to assure against damage from transportation and weather and to secure lowest transportation costs in accordance with requirements of common carriers.
Buyer’s order numbers and symbols must be plainly marked on all invoices, packages, bills of lading and shipping orders. Packing list shall accompany each box or package shipped showing Buyer’s Order number, item number and description of materials. Buyer’s count or weight shall be final and conclusive on shipments not accompanied by packing list. Shipping receipts or bills of lading shall be sent to Buyer on date material is shipped. Invoices shall be mailed in original only to the attention of Buyer’s Accounting Department immediately after each shipment. Extra freight and/or cartage charges resulting from routing differing from Buyer’s instruction will be charged to Seller’s account. No substitutions of goods or services shall be made without authorization of Buyer. Seller shall make no package quantity change on any Order without written authorization of Buyer.
PATENT INDEMNITY: Seller on behalf of itself, its successors and assignees, warrants that the material and goods ordered hereunder, unless made pursuant to specifications furnished by Buyer, do not and will not infringe any patents granted by the United States of America or any country foreign thereto, nor any trademark, or trade name, and covenants and agrees to indemnify and save harmless Buyer, its affiliates, its successors, assignees, customers and users of its products against any and all claims, demands, expenses and liabilities arising from or attributable to such infringement, and Seller agrees to defend, at its own expense, and at no expense to Buyer, any such claims whether justified or unjustified or at the option of Buyer to permit and assist Buyer in the defense thereof, and to pay all reasonable attorney’s fees, court costs and other expenses sustained by Buyer or its customers in defense thereof.
PATENT RIGHTS: When payment is made for experimental, development, or research work, as such, to be performed in accordance with special requirements of the Buyer, Seller agrees to disclose and on request to assign to Buyer, each invention resulting therefrom. All proprietary rights embodied in design, tools, patterns, drawings, information, equipment, and schematics supplied by Buyer under this Order are reserved and their use is restricted to the work to be performed hereunder. Seller shall not disclose any details connected with this Order to any third party except as may be required to insure performance, without first obtaining the written consent of Buyer.
PRICES: This Order must not be filled at higher prices than shown on this Order. Seller warrants prices herein are as low as any (net) price given by Seller to any other customer for like material. Seller will give Buyer benefit of any price declines prior to date of shipment.
RISK AND LOSS: Buyer shall not be liable nor obligated to pay for goods shipped until received at the “Ship To” location of Buyer indicated on the face hereof and in good condition. Buyer shall have the right to determine the “good” condition of the merchandise or parts by reserving the right to inspect the goods at the time and place of delivery before accepting them.
SELLER’S GENERAL INDEMNIFICATION OF BUYER: Seller shall forever reimburse, indemnify, defend, and hold harmless, Buyer, its affiliates, its successors and assignees from and against any and all obligations, liabilities, actions, causes of action, losses, damages, penalties, including, but not limited to, claims of infringement of patents, copyrights, trademarks, unfair competition, bodily injury, property or other damages, arising out of any use, possession, consumption or sale of said goods or arising out of any breach of warranty, express or implied, on the part of the Seller. If any goods or services are defective, unsuitable, misshipped, do not conform to all terms of the Order and all warranties implied by law, Buyer may, at its option, return the goods to Seller for full credit or refund of the purchase price and may charge Seller such price and the cost of any incurred inbound and outbound freight and any reasonable handling, storage and inspection charge.
STATEMENT OF ACCOUNT AND TERMS: A statement of account must be sent to Buyer’s Accounting Department as soon as possible after the first of each month. Delays in receiving statement or invoices, and also errors and omissions on statement will be considered just cause for withholding settlement without losing any applicable discount privileges. Payment will be made in accordance with the terms on the face hereof, however if payment terms are left blank then Buyer shall have (60) days from receipt of goods and services to make payment. Notwithstanding the foregoing, payment will be due only upon Seller’s full and faithful performance in accordance with the terms and conditions of this Order. Payment may be made by business check, unless otherwise specified. See INVOICING.
TIME OF ESSENCE: Time is of the essence in this Order. The goods and services shall be delivered on or before the close of business on the day specified on the Order or according to the schedule thereon stated. Buyer shall have the right to demand all of the goods or services at one time during the schedule period or in portions, as directed by Buyer, from time to time during that period. Seller’s failure to meet any arrival date shall constitute a material breach of the Order, as a result of which Buyer may terminate the Order.
VARIATION IN QUANTITY: Buyer assumes no liability for material produced, processed or shipped in excess of the amount specified in this Order.
CHANGES: The goods to be furnished hereunder are to be specifically manufactured in accordance with Buyer’s specifications; Buyer may by written request make changes to specifications. Any difference in price or time for performance resulting from such change will be equitably adjusted and the request modified in writing accordingly.
WARRANTY: Seller warrants and represents that the goods shipped shall (a) be free of defects in design, workmanship and materials, including, without limitations, such defects as could create a hazard to life or property; (b) conform in all respects with all applicable federal, state and local laws, orders and regulations, including, but not limited to, those regarding occupational safety and health; (c) not infringe or encroach upon Buyer’s or any third party’s personal contractual or proprietary rights, including patents, trademarks, copyrights, rights of privacy or trade secrets; (d) conform to all of Buyer’s specifications, if any, delivered to Seller, which may change from time to time. If Buyer was shown any sample of the goods, Seller warrants that the goods shipped will be of equal or superior quality thereto. Seller shall within three (3) business days of Seller’s receipt of notice concerning nonconformance to the warranties provided in this Order in the goods, associated equipment or materials, commence corrective action to make good the defect or nonconformance, or if the corrective action is unknown, commence an investigation of the nonconformity, whether such defect or nonconformance is discovered before or after inspection and acceptance by Buyer of such goods or associated equipment or materials. In the event of a failure by a part or goods during the period it is under warranty, Buyer shall return the non-performing part or goods to Seller at Seller’s cost and expense and Seller shall, at Buyer’s option either repair and return such non-conforming part or goods or replace such non-performing part or goods with a new part or goods. Removal and reinstallation of the part or goods shall be at the sole expense of Seller.
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