Legacy Electronics, Inc. Terms and Conditions of Purchase
TERMS AND CONDITIONS: These terms and conditions control the purchase of the goods and services set forth in this Purchase Order and constitute the full and complete agreement between Buyer and Seller with respect thereto. Any prior offer made by Seller to Buyer regarding the subject matter hereof is rejected. In the event of any conflict between any typed or handwritten provisions that are part of this Purchase Order, including any exhibits attached hereto, and the pre-printed terms and conditions set forth herein, the typed or handwritten provisions shall control. These terms and conditions may not be waived or modified except in writing by Buyer.
ACKNOWLEDGMENT AND ACCEPTANCE: The issuance of this Purchase Order to Seller constitutes an offer expressly limited to the terms contained herein. Seller’s acceptance is expressly made conditional on assent to the terms hereof. Any addition, change or deletion in these terms by Seller in Seller’s acknowledgment form or otherwise communicated to Buyer shall be deemed a material alteration and is expressly objected to and rejected by Buyer. Buyer reserves the right to revoke this offer at any time prior to acceptance, which acceptance shall take place only by (i) the return of an executed and unmodified copy of this Purchase Order, or (ii) Seller’s delivery of conforming goods to Buyer and Buyer’s acceptance thereof. Unless acceptance of this offer is made within twenty (20) days of issue, Buyer reserves the right to revoke this offer and/or reject any acceptance by Seller of the offer to purchase contained in this Purchase Order.
TECHNICAL INFORMATION AND EQUIPMENT: All technical specifications, drawings, notes, instructions or information referred to on the face of this Purchase Order or contained in attachments or exhibits hereto are deemed to be incorporated by reference. Seller expressly acknowledges that it has received and read said referenced information. All such materials, together with all tools, equipment and parts furnished by Buyer, shall remain the property of Buyer and shall be used only for work performed for Buyer. Seller, at Buyer’s request, shall return to Buyer (i) all written materials delivered to Seller, (ii) any copies thereof, (iii) all written materials generated by Seller pursuant to the performance of this Purchase Order, and (iv) all tools, equipment and parts furnished by Buyer.
PRICE AND DELIVERY: Seller shall furnish the goods or services in accordance with the price and delivery terms stated therein. TIME AND RATE OF DELIVERY ARE OF THE ESSENCE. Unless otherwise stated, the price terms contained therein include all costs or charges of any kind that will be paid by Buyer, and Buyer shall not be liable for any other costs or charges, all of which shall be borne by Seller, including, without limitation, charges for inspection, packaging and freight, all federal, state and municipal sales, use and excise taxes, and any customs duties. The price terms shall remain fixed until completion of the deliveries contemplated hereunder. Buyer may return or store at Seller’s expense any goods delivered more than one (1) week in advance of the delivery date. Delivery of any goods over and above the actual quantity specified herein will be at the risk of the Seller and payment will not be made for such excess goods unless Seller obtains Buyer’s prior written consent. Seller warrants that the prices charged for goods or services covered by this Purchase Order will be as low as lowest prices charged by Seller to customers purchasing goods or services of like kind and quality. Seller shall notify Buyer immediately at such time as Seller has knowledge of any impending material shortage, governmental regulation, labor dispute or other event or impediment which could result in a delay in the delivery.
PACKAGING AND FREIGHT: Seller shall be responsible for packaging, marking and shipping the goods in accordance with the terms hereof, good commercial practices and all applicable laws. Each package shall be marked with handling instructions, shipping information, Purchase Order number and part or item number. An itemized packing list shall accompany each shipment. Buyer reserves the right to reject any shipment not meeting these requirements.
F.O.B., RISK OF LOSS: F.O.B. point shall be Buyer’s location unless otherwise stated in writing by Buyer. Notwithstanding any prior inspection and F.O.B. point, Seller shall bear all risk of loss until final inspection and acceptance of the goods by Buyer at Buyer’s location, and title shall pass upon delivery to destination and acceptance of the goods by Buyer. Seller shall also bear all risk of loss with respect to any goods rejected by Buyer.
PAYMENT: Seller shall issue invoices only upon delivery of the goods or completion of services ordered by Buyer hereunder. Unless different payment terms are specified on the face hereof, Buyer shall issue payment within sixty (60) days of its receipt of correct and conforming Seller invoice, or sixty (60) days after acceptance and qualification by Buyer, whichever is later. Payment by Buyer is contingent upon delivery by Seller of conforming goods or satisfactory completion of services. Payment made for rejected goods or services shall be refunded by Seller to Buyer within five business days of Buyer’s request or, at Buyer’s option, deducted from any other payments then or thereafter due Seller from Buyer. In no event shall Buyer be obligated to pay interest or penalties on any amounts due under Seller’s invoices. Any attempt by Seller to create a security interest in goods delivered hereunder in its favor is expressly rejected by Buyer and shall be without effect.
SET-OFFS: Buyer shall have the right at any time to set off any amount owing from Seller to Buyer, or Buyer’s subsidiaries or affiliates, against any amount due and owing to Seller or any of Seller’s subsidiaries or affiliates, pursuant to this Purchase Order or any other contractual agreement between Buyer and Seller or their respective subsidiaries or affiliates.
INSPECTION: Seller shall inspect all goods prior to shipment to Buyer. Non-conforming goods may be rejected by Buyer and returned to Seller at Seller’s risk and expense for credit, rebate of paid purchase price, or replacement, at Buyer’s option. In addition, Buyer reserves the right to reject and return at the risk and expense of the Seller such portion of any shipment under this Purchase Order which fails to comply with the warranty herein or Buyer’s specifications without invalidating the remainder of such shipment or any other shipment under this Purchase Order. Payment before inspection shall not be deemed acceptance of non-conforming goods or services.
WARRANTY: SELLER’S DELIVERY OF GOODS AND PERFORMANCE OF SERVICES HEREUNDER SHALL CONSTITUTE A WARRANTY AT SUCH TIME FOR A PERIOD OF ONE (1) YEAR: (1) THAT ALL GOODS ARE FREE FROM DEFECTS IN DESIGN, MATERIAL AND IN WORKMANSHIP; (2) THAT ALL SERVICES ARE PERFORMED IN A GOOD AND WORKMANLIKE MANNER; (3) THAT SELLER HAS GOOD TITLE TO THE GOODS AND HAS CONVEYED SUCH TITLE TO BUYER FREE AND CLEAR OF ALL LIENS, CHARGES AND ENCUMBRANCES; (4) THAT THE GOODS OR SERVICES CONFORM TO APPLICABLE SPECIFICATIONS, DRAWINGS, SAMPLES OR OTHER DESCRIPTIONS REFERENCED HEREIN; AND (5) THAT THE GOODS ARE MERCHANTABLE AND FIT FOR THE PURPOSES INTENDED.
SELLER’S ATTEMPTED LIMITATION OF LIABILITY: Any attempt by Seller to disclaim any theory or grounds upon which Buyer, or successive purchasers of the goods and services covered hereby, might recover against Seller is expressly rejected and is ineffective. Any attempt by Seller to limit its liability by means of a “Force Majeure” or similar argument or terms is expressly rejected and is ineffective. Any attempt by Seller to disclaim any kind or class of damages which Buyer, or successive purchasers of the goods and services covered hereby, might recover against Seller is expressly rejected and is ineffective. Any attempt by Seller to establish by contract time limitations periods within which Buyer, or successive purchasers of the goods and services covered hereby, are obligated to assert claims against Seller is expressly rejected and is ineffective. Buyer and any successive purchasers of the goods and services covered hereby retain and shall be entitled to assert all rights and claims available to them at law or equity against Seller in respect of the transactions subject to this Purchase Order.
INDEMNITY AGAINST LOSS: Seller shall indemnify and hold Buyer, its affiliates and licensees, and their directors, officers, employees and agents, harmless from and against all demands, claims, losses, and liabilities of whatever kind or nature, including attorneys’ fees and costs, asserted against or suffered by Buyer, its affiliates and licensees, and their directors, officers, employees and agents, by reason of, arising out of, or in any way related to, in whole or in part, the goods and services covered by the preparation, processing manufacture, construction, completion, delivery and/or use thereof. Without limitation, such obligation to indemnify shall exist with respect to claims and demands relating to accidents, occurrences, injuries or losses, including, without limitation, injuries to persons or property and economic losses, by reason of, arising out of, or in any way related to, in whole or in part, the goods and services covered by this Purchase Order or the preparation, processing, manufacture, construction, completion, delivery and/or use thereof. Seller will defend Buyer, at Seller’s expense, in any legal actions implicating its indemnity obligations and will pay costs and damages awarded in any such actions.
CANCELLATION: Unless otherwise provided in this Purchase Order, Buyer may cancel this Purchase Order in whole or in part upon notice at any time. Notwithstanding any provision to the contrary and in addition to any other remedy, Buyer may cancel this Purchase Order in whole or in part upon notice in the event that: (1) Seller fails to make delivery at the time provided; (2) Seller fails to comply with any other term or condition of this Purchase Order or any other outstanding Purchase Order from Buyer within ten (10) days of demand thereof; (3) a receiver or other similar officer is appointed over any or all of Seller’s property or assets; (4) Seller files a voluntary petition in bankruptcy, or an involuntary petition in bankruptcy is filed against Seller; (5) Seller merges with or is acquired by a third party; or (6) Seller assigns, delegates or subcontracts this Purchase Order or any of its rights or obligations hereunder without the prior written consent of Buyer. Upon Buyer’s cancellation, Seller shall deliver to Buyer such work in process or completed goods as may be requested by Buyer. Buyer shall have no liability to Seller beyond payment of any balance owing for goods or services delivered to and accepted by Buyer prior to Seller’s receipt of the notice of termination, and for work in process and completed goods requested by, delivered to, and accepted by Buyer after Seller’s receipt of notice of termination. In no event shall Buyer be liable for consequential or incidental damages. Any attempt by Seller to take an action described in subsection (6) hereof shall be void and of no force or effect.
CONFIDENTIAL INFORMATION AND ADVERTISING: Without prior written consent of Buyer, Seller shall neither disclose any person outside its employ, nor use for purposes other than performance of this Purchase Order, any information pertaining to the existence or terms of this Purchase Order including, but not limited to, the identity, price, or volume of the goods or services purchased hereunder, and the drawings, blueprints, descriptions, or specifications which are a part of or related to this Purchase Order. Seller agrees that Buyer shall be entitled to enforce this section against Seller by means of injunctive relief without the necessity of proving irreparable harm.
SELLER’S INTELLECTUAL PROPERTY INDEMNITY: Seller shall indemnify and hold Buyer, its affiliates and licensees, and their directors, officers, employees and agents harmless from and against all demands, claims, losses, and liabilities of whatever kind or nature, including attorneys’ fees and costs, asserted against or suffered by Buyer, its affiliates and licensees, and their directors, officers, employees and agents, arising from or related to any claim or allegation, whether rightful or otherwise, that goods o services provided hereunder, or any component thereof, infringe any patent, trademark, copyright, mask work, or other intellectual property rights of a third party. Seller will defend Buyer in such actions at Seller’s expense and will pay costs and damages awarded in any such action. In the event that any injunction shall be obtained against Buyer’s use of the goods or services, or any component thereof, Seller shall, as its sole expense, either procure for Buyer the right to continue using the goods or services or replace or modify the same to become non-infringing but equivalent in form, fit and function. The indemnity set forth in this section shall apply notwithstanding that the goods sold hereunder may have been produced by seller in compliance with specifications furnished by Buyer. Buyer does not have any obligation to hold Seller harmless from any claim against Seller, its directors, officers, employees or agents, arising out of compliance with Buyer’s specifications.
TECHNOLOGY RIGHTS: All products, information and technology produced, conceived or otherwise developed by Seller in connection with this Purchase Order shall be deemed works made for Buyer and shall vest exclusively in Buyer. Seller shall assign to Buyer all right, title and interest in all inventions, trade secrets, patents, mask works, copyrights, trademarks and other intellectual property developed by Seller in connection with this Purchase Order. Seller shall provide Buyer any assistance required to perfect such rights.
LICENSE FOR ALL PURPOSES: In addition to any other licenses, express or implied, in favor of Buyer, Seller’s delivery of goods under this Purchase Orders confers upon Buyer a license under any intellectual property rights of Seller to use, make or have made, the goods for all purposes, including modifying such goods, whether by combining such goods with any other product available to Buyer (including products purchased from Seller) or otherwise, and to sell the same.
COMPLIANCE WITH LAWS: Seller warrants that in performance of this Purchase Order it has complied with or will comply with all applicable international, national, state and local laws, regulations and ordinances. Seller agrees to defend, indemnify and hold Buyer, its directors, officers, agents and employees, harmless from all claims, liabilities, losses, damage and expenses, including reasonable attorneys fees, sustained or incurred because of Seller’s failure to comply with the provisions of this section. International laws, ordinances and regulations shall include, but are not limited to, the European Union’s Directive 2002/95/EC. Restriction on Use of Hazardous Substances (“RoHS”), and the implementing legislation and regulations of the European Union member states thereunder. Notwithstanding the delivery destination identified by Buyer, Seller shall be obligated to provide Buyer with ROHS compliant product(s) if Buyer has so ordered ROHS compliant product(s). The parties agree that Buyer will request ROHS compliant product(s) by submitting specifications for ROHS compliant product(s). Such specifications may be communicated to Seller by Buyer in a variety of ways, including, but not limited to: (i) on a drawing; (ii) in this Purchase Order; or (iii) by ordering product(s) with a part number that identifies it as RoHS compliant, or which part number is generally known to identify a ROHS compliant product. In furtherance of Seller’s obligation to comply with RoHS on product(s) with RoHS compliant specifications and to assist Buyer or its customers in complying with RoHS, Seller will, as requested by Buyer, (i) provide written and executed certifications to Buyer of RoHS compliance, in the form requested by Buyer, (ii) assign RoHS specific part numbers for RoHS compliant products(s); (iii) make available to Buyer a list of Seller’s RoHS compliant raw materials and the suppliers thereof, (iv) conspicuously label product(s) that are RoHS compliant and otherwise maintain an effective system to distinguish between RoHS compliant product(s) and non-RoHS compliant product(s), (v) allow Buyer or its customers, at reasonable times and with reasonable advance notice, to audit Seller’s facilities and records for RoHS compliance; and (vi) perform any other acts as reasonably requested by Buyer or Buyers’ customers to confirm product RoHS compliance. Furthermore, Seller shall immediately inform Buyer in writing if any banned substances, as identified in the RoHS Directive, have been used in product(s) previously identified as RoHS compliant.
INSURANCE: Seller shall carry Comprehensive General Liability insurance, including contractual, products liability, completed operations, and vendors’ endorsement with limits of either (US) $3,000,000 combined single limit per occurrence for bodily injury and property damage of (US) $2,000,000 bodily injury per occurrence and (US) $1,000,000 property damage per occurrence. This coverage shall include insurance to cover sublet work, if any. In addition, Seller shall be responsible for insuring any consigned goods located at Buyer’s premises against loss and/or damage. Said insurance shall be placed with companies satisfactory to Buyer. Seller shall submit certificates of insurance covering all required insurance to Buyer upon request. In case of failure to furnish said certificates of insurance, as aforesaid, Buyer may terminate this Purchase Order. Seller shall also carry insurance covering claims by its employees, agents, and subcontractors in amounts of not less than (US) $250,000 per occurrence or the minimum statutory required limit, whichever is greater.
GOVERNMENT CONTRACTS: Seller warrants that in the performance of this Purchase Order, it has complied with or will comply with all applicable requirements of governmental agencies and statutory bodies which are applicable to the goods or services purchased hereunder. Upon request, Seller shall certify compliance with any of such laws or regulations deemed applicable by Buyer.
RELATIONSHIP TO OTHER AGREEMENTS: Notwithstanding anything else contained herein, the terms hereof shall be subject to any written agreement between Buyer and Seller which is signed by each of them and expressly provides that the terms of any particular invoice, acknowledgment, purchase order or transaction shall be subject to the terms of such agreement.
RELATIONSHIP BETWEEN PARTIES: The transaction entered into between the parties pursuant to this Purchase Order does not create any partnership, joint venture, or agency between the Parties, and nothing in this Purchase Order shall be construed as creating any such relationship.
APPLICABLE LAW: This Purchase Order shall be governed by the laws of the State of South Dakota, United States of America. To the extent such laws are not enforceable to settle or adjudicate any dispute between the parties hereunder, both parties expressly submit to the applicable commercial laws and the jurisdiction of the Federal court in Minnehaha County, within the State of South Dakota, waiving to any other jurisdiction that may be applicable to either of them because of their present or future domiciles or any other reason whatsoever. The sale of product(s) hereunder shall not be governed by, or subject to, the United Nations Convention on Contracts for the International Sale of Goods.
NOTICES: All notices shall be in writing and delivered either by hand, facsimile, or certified mail, return receipt requested at the addresses set forth herein. Notice shall be deemed to have been given upon receipt if delivered by hand; upon receipt if given by facsimile but only if such receipt is confirmed by written confirmation produced by the transmitting machine; and upon expiration of seven (7) days after mailing, if given by certified mail.
REMEDIES: Rights and remedies provided to Buyer herein shall be in addition to, and not exclusive of, any other rights or remedies that Buyer may have at law or equity. Failure by either party to enforce any term will not be deemed a waiver of future enforcement of that or any other term. The terms and conditions stated herein are severable. If any clause herein shall be held unenforceable by any court of competent jurisdiction, such clause shall be deemed reduced in scope to the maximum extent enforceable, and all other clauses herein shall remain binding on the parties.
TITLES: The section titles herein are used for reference purposes only and shall not be referred to or relied upon in interpreting the meaning of the language contained in such section.
GOVERNING LANGUAGE: Buyer and Seller acknowledge and agree that the language of this Purchase Order is the English language as used in the United States of America. In the event that the terms of this Purchase Order are translated into one or more languages, the English language version of this Purchase Order, as the language is used in the United States, shall be the governing version for purposes of interpreting and enforcing this Purchase Order.