Cirrascale Purchase Order Terms and Conditions

The following terms and conditions govern Cirrascale Corporation ("Cirrascale") Purchase Orders.

1. Entire Agreement

    1. The terms and conditions set forth below together with those appearing on the face of this Purchase Order or on any attachments hereto (collectively the “Order”) constitute the complete and exclusive agreement between Cirrascale Corporation (“Buyer”) and the Seller identified on the face of this Order (“Seller”).
    2. This Order may be accepted only by the Seller: (1) signing and returning an acknowledgement prior to the specified delivery date; or (2) delivering the goods or services ordered by the specified delivery date. THIS ORDER IS LIMITED TO THE TERMS AND CONDITIONS SPECIFIED ON THE FACE AND REVERSE OF THIS DOCUMENT AND ANY ATTACHMENTS HERETO. BUYER DOES NOT AGREE TO ANY PROPOSED ADDITION, ALTERATION, OR DELETION BY SELLER. THESE TERMS AND CONDITIONS CAN ONLY BE MODIFIED IN WRITING AND ONLY IF SIGNED BY AN AUTHORIZED REPRESENTATIVE OF EACH PARTY. ANY FAILURE TO RETURN AN ACKNOWLEDGEMENT OF THIS ORDER OR ANY OTHER STATEMENT OR WRITING OF SELLER SHALL NOT ALTER, ADD TO, OR OTHERWISE AFFECT THESE TERMS AND CONDITONS.

2. Prices and Invoice

    1. Seller shall sell to Buyer the goods (“Goods”) and / or services (“Services”) shown on the face of this Order at the prices specified. Except as otherwise provided in this Order, such prices are exclusive of applicable freight charges and duties. Seller warrants that such prices are not in excess of the lowest prices charged by Seller to other similarly situated customers for similar quantities of goods and / or services of the like kind and quality. In the event that the Seller reduces its price for such Goods and / or Services, Seller agrees to reduce the prices hereof accordingly.
    2. Payment for Goods and / or Services by Buyer to Seller shall be net thirty (30) days after the later of receipt by Buyer of (i) an appropriate invoice from seller, or (ii) the corresponding Goods and / or Services. Seller hereby agrees that Buyer may deduct from Seller’s invoices any monies owed to Buyer by Seller.

3. Shipments and Delivery

    1. Unless otherwise specified in the order, shipments of Goods shall be F.O.B. destination. Title and risk of loss or damage shall pass from the Seller to Buyer upon Seller’s delivery of the Goods to the “Ship To” location specified by the Buyer, subject to sections 3.2 and 3.3 below.
    2. Seller shall preserve, package, handle and pack the Goods so as to protect the Goods from loss or damage in conformance with good commercial practices, Buyer’s specifications, government regulations, and any other applicable requirements. Seller shall be responsible for any loss or damage due to its failure to properly preserve, package, handle or pack the Goods. Buyer shall not be required to assert any claims against the common carrier involved due to Seller’s loss or damage.
    3. If applicable, all Goods shall be shipped in conformance with government or transportation regulations applicable to chemicals or other materials, which are hazardous to the environment.
    4. Each delivery of Goods to Buyer shall include a packing list which contains at least (i) this Order number, (ii) the Buyer’s part number as specified in this Order, (iii) the quantity shipped and (iv) the date of the shipment.
    5. Seller shall give Buyer notice of any prospective failure to ship Goods and / or provide Services in time to meet the date on which such Goods and / or Services must be received by Buyer (the delivery date). Such notice shall be provided as soon as Seller becomes aware of delay or difficulty in meeting the delivery date and shall specify what Goods or Services are being delayed, the anticipated duration of the delay and a proposed new delivery date. If Buyer does not agree to the proposed new delivery date and if the delay is greater than 20 days, Buyer shall have the right to terminate the Order without any liability to the Seller. If only a portion of the Goods are available for shipment to meet the delivery date, Seller shall ship the available Goods unless directed by Buyer to reschedule shipment. If Seller ships Goods by a method other than specified in this Order, Seller shall pay any resulting increase in the cost of freight incurred over that which would have been incurred had Seller complied with Buyer’s shipping instructions. If Buyer has not granted Seller an extension as provided above and / or exercised its termination right, then Buyer may apply liquidated damages calculated on the basis of the cost for the delayed Goods or Services at a rate of 2% of the cost for each week (or portion thereof) of delay.
    6. If due to Seller’s failure to timely ship Goods, the specified method of transportation would not permit Seller to meet the delivery date, the Goods affected shall be shipped by air transportation or other expedient means acceptable to Buyer. Seller shall pay for any resulting increase in cost of freight incurred over that which would have been incurred by the specified method of transportation.
    7. If Seller makes any delivery more than three (3) work days prior to the date required, Buyer may either return the goods or delay processing the corresponding invoice until the scheduled delivery date.
    8. All non-complying products (as defined in section 7.1 below), over shipments, and early shipments returned by Buyer to Seller and all replacement or reworked products shipped by Seller to Buyer to replace noncomplying products shall be at Seller’s risk and expense including all transportation charges, and round trip charges in the event of replacement or reworked Goods.

4. Changes & Cancellations

    1. Buyer may, without charge, change or cancel any portion of this Order if Buyer gives Seller notice (i) for custom Goods and / or Services (i.e supplied exclusively in accordance with Buyer’s designs or specifications), at least fifteen (15) calendar days prior to the delivery date, and (ii) for standard Goods and / or Services (i.e. all Goods and / or Services other than custom), at least five (5) days prior to the delivery date.
    2. If Buyer changes or cancels any portion of this Order after the time periods specified in section 4.1 above, Buyer shall be responsible for actual costs incurred by Seller as a direct result of such change or cancellation which are not recoverable by either (i) the shipment of the Goods and / or provision of the Services affected to other parties within a responsible time, or (ii) the exercise by Seller, in a commercially reasonable manner of other mitigation measure. The foregoing states Buyer’s entire liability and Seller’s exclusive remedy for any change and / or cancellation or suspension of all or any part of this Order. Any claims under this paragraph must be asserted in writing within thirty (30) days after the change, cancellation, or suspension as ordered and the amount of such claim must be stated in detail in writing within thirty (30) days thereafter.
    3. Buyer may, effective upon notice to Seller, change Buyer’s designs or specifications at any time prior to shipment of Goods or rendering of corresponding Services. If any such change directly affects the prices or delivery schedules of Goods and / or Services, an equitable adjustment shall be made provided that Seller makes a written claim for an adjustment prior to shipment of the Goods and / or provision of the Services. If the parties are unable to agree upon the amount of the adjustment, acting reasonable and in good faith, Buyer may without any liability terminate this Order as to all goods and / or Services affected.
    4. Seller shall not, without prior written consent of Buyer, make any process or design changes affecting the Goods.

5. Quality & Warranty

    1. Seller represents that it is a merchant in the Goods and / or Services of the kind being sold and agrees that it shall be considered as such a merchant for all purposes under this Order.
    2. Seller warrants that any Goods furnished by Seller have undergone or have been subject to quality control activities and procedures, including performance measurements, testing, quality process reviews or inspections. Seller shall maintain an objective quality program (the “Program”) for all Goods and / or Services. Seller shall, upon Buyer’s request, provide to Buyer copies of Seller’s Program and supporting test documentation and certificate of compliance with the specification control document or drawing (SCD) for the particular Good.
    3. Seller warrants that all Goods and / or Services shall (i) conform strictly to the design criteria, specifications (including general specifications and quality requirements), descriptions, drawings, samples, and other requirements referred to in this Order or provided by Seller, (ii) be free from defects (either intent or patent) in design, material and workmanship, (iii) be fit and sufficient for the purpose intended, merchantable, of good material and workmanship; (iv) be free of all liens, encumbrances, and other claims against title; and (v) in the case of Services be performed in a professional workman like manner.
    4. All warranties specified in this section 5 shall (i) survive any inspection, delivery, test, acceptance, use of payment by Buyer: (ii) run to Buyer, its successors, assigns customers and the users of its products made from the Goods and / or Services supplied by Seller: and (iii) be in affect for the longer of Seller’s normal warranty period, the one (1) year period following the date of acceptance of the Goods and / or Services by Buyer or Buyer’s standard warranty provided to its customers (including extended warranty, repair or retrofit periods).

6. Inspection & Testing

    1. All Goods ordered hereunder will be subject to inspection and test by Buyer to the extent practicable at all times and places, including the period of manufacture and in any event prior to acceptance. Seller agrees to permit access to Seller’s facilities at all reasonable times for inspection of Goods by Buyer’s agents or employees and will provide assistance reasonably necessary for such inspection at no additional cost to Buyer. Such Goods will be subject to final inspection and acceptance by Buyer after delivery to Buyer. It is expressly agreed that inspections and / or payments prior to delivery will not constitute final acceptance. If the Goods delivered do not meet the specifications or otherwise do not conform to the requirements of this Order, Buyer shall have the rights as specified in section 7.1 below.
    2. Buyer reserves the right during regular business hours and following reasonable notice to Seller, to inspect Seller’s physical facilities or quality control procedures, both prior to the first delivery of the Goods and periodically thereafter, in order to verify compliance with its specifications, quality requirements, and other standard industry practices and procedures.

7. Noncomplying Products

    1. If any Good and / or Service is defective or otherwise not in conformity with the requirements of this Order (“Non-complying Product”), Buyer may (i) return the noncomplying product for replacement or reworking at Seller’s expense, or (ii) repair the non-complying product and recover Buyer’s reasonable expenses of repair.
    2. Seller shall, if Buyer selects the alternative in paragraph 7.1 (i) above, return the replacement or reworked product no later than five (5) workdays after receipt of the non-complying product from Buyer. The cure period specified in section 12.1 below shall apply only once to any breach of this section 7.2. If Buyer rejects any non-complying product, Buyer may procure, upon such terms and in such manner as Buyer reasonably deems appropriate, a similar product in substitution for the noncomplying product. Seller shall reimburse Buyer upon demand for all additional costs incurred by Buyer in purchasing any such product. All non-complying products that are returned to Seller and all replacements or reworked products shipped by Seller to replace non-complying products shall be at Seller’s risk and expense, including round trip transportation charges.

8. Indemnity

    1. Seller shall defend, indemnify, and hold Buyer, its affiliates, subsidiaries, successors, assigns, officers, directors, employees, customers, subcontractors and users of the Goods and / or Services harmless with respect to all claims, liability, fees, cost damage, loss and expenses including attorney’s fees, incurred, relenting to, or caused by:
        1. actual or alleged patent, copyright, trademark, service mark, trade secret, or mask work rights infringement or violation of other proprietary rights, arising out of the purchase, sale, or use of the Goods and / or Services covered by this Order:
        2. actual or alleged defects (either intent or patent) in Services or in the design, manufacture, or material of the Goods:
        3. actual or alleged breach of warranty:
        4. failure of Seller to deliver the Goods and / or Services on a timely basis:
        5. failure of the Goods and / or Services to meet the requirements of applicable law, including without limitation the following statutes, as applicable: Federal Food, Drug and Cosmetic Act, Biological Products section of the Public Health Service Act; Federal Insecticide, Fungicide, and Rodenticide Act; Federal Hazardous Substances Act; Federal Caustic Poison Act; Toxic Substance Control Act; Flammable Fabrics Act; Fair Packaging and Labeling Act; Wood Products Labeling Act; Magnuson-Moss Warranty Federal Trade Commission Improvement Act; and Occupational Safety and Health Act of 1970; or
        6. Seller’s failure to comply with the requirements of section 9.2 below.
      In the event of a claim under this section, Buyer may at its option terminate this Order or defer acceptance of the balance of the Goods and / or Services ordered until the claim is resolved. If Buyer is enjoined from the use of all the Goods, Seller shall, at Buyer’s option, either procure for Buyer the right to continue using the Goods, replace the Goods with substantially equivalent Goods, modify the Goods so as to be usable by Buyer, or repurchase the Goods at the price / cost set forth in this Order. This section shall not be construed to indemnify Buyer for any loss to the extent it is attributable to Buyer’s design, specification, or negligence. Seller acknowledges that the Goods may be incorporated as components into finished goods sold to Buyer’s customers and that Buyer has extended warranty, repair replacement and retrofitting obligations to certain of its customers. In certain cases these obligations may extend for up to fifteen (15) years beyond delivery of products to Buyer customers. As the result the indemnification obligations, this section 8 shall survive for so long as Buyer has warranty, repair, replacement or retrofitting obligations to its customers.

9. Intellectual Property and Confidential

      9.1 Without limiting the generality of section 8 above, if the use by Buyer or its affiliates, subsidiaries, assigns, subcontractors, or customers of any Good and / or Service is enjoined (“Infringing Product”), Seller shall, at its expense, procure the right to continue using the infringing product. If Seller is unable to do so, Seller shall at its expense (i) replace the infringing product with a noninfringing product that performs the same function, (ii) modify the infringing product to be noninfringing without materially altering is functionality or performance, or (iii) if unable to replace or modify the infringing product, refund in full all costs paid by Buyer for the infringing product.

      9.2 Seller shall remove from all Goods rejected, returned or not purchased by Buyer, Buyer’s name and any of Buyer’s trademarks, trade names, insignia, part numbers, symbols, or decorative designs, prior to any other sale, use, or disposition of such Goods by Seller.

      9.3 Except as required by this agreement, Seller shall not use or disclose any confidential information of Buyer, which is obtained from Buyer or otherwise prepared or discovered. “Confidential Information” includes, without limitation, all information designated by Buyer as confidential, all information or data concerning Buyer’s products (including costs, forecasts, profits, pricing methods, designs and processes), information obtained through access to any Information Assets / Systems (IA/S) (e.g., computers, networks, voice mail, etc.) and any information which, if not otherwise described above, is of such a nature that a reasonable person would believe it to be confidential.

      9.4 Access is limited to those specific IA/S, time periods, and personnel authorized by Buyer and is subject to Buyer’s information protection policies. Use of any other IA/S or during other time periods or by unauthorized individuals is expressly prohibited, even if an IA/S which seller is authorized to access serves as a gateway to other IA/S. Buyer may audit Seller to very compliance. Seller warrants that each employee, agent of subcontractor who performs work under this agreement has been informed of the obligations contained herein and has agreed to be bound by them.

      9.5 All supplies, materials, tools, jigs, dies, gauges, fixtures, molds, patterns, equipment and other items furnished by Buyer either directly or indirectly to Seller to perform this agreement, or which Seller has been reimbursed by Buyer, shall be and remain the property of Buyer. Seller shall bear the risk of loss of and damage to Buyer’s property. Buyer’s property shall at all times be properly housed and maintained by Seller and shall not be used by Seller for any purposes other than the performance of this agreement.

10. Insurance

Seller shall furnish Buyer with certificates of insurance evidencing insurance for the types and in the amounts required by Buyer before the commencement of any work on Buyer’s premises. All such insurance certificates shall provide that they shall not be cancelled or amended without thirty (30) days prior written notice to Buyer and shall be with insurance companies reasonably satisfactory to Buyer. Insurance shall be maintained for the period specified by Buyer or so long as work on the premises is ongoing, if no period is specified.

11. Governmental Compliances

    1. Seller shall (i) comply with all federal, state, local, and foreign laws, rules and regulations applicable to its obligations under this Order, and (ii) furnish to Buyer any information required to enable Buyer to comply with such laws, rules and regulations in its use of the Goods and / or Services.
    2. If the Goods and / or Services are incorporated by Buyer into products and services sold under a federal contract or subcontract, those applicable procurement regulations that are required by federal statute or regulations to be inserted in contracts or subcontracts shall be deemed to apply to this Order.
    3. Without limiting the generality of section 11.1 above, Seller warrants that (i) each chemical substance contained in Goods is on the inventory of chemical substances compiled and published by the Environmental Protection Agency pursuant to the Toxic Substances Control Act, and (ii) all Material Safety Data Sheets (MSDS) required to be provided by Seller for Goods shall be provided to Buyer prior to shipment of the Goods and shall be complete and accurate.
    4. Seller shall comply with the requirements of Executive Order 11246, the Vocational Rehabilitation Act, and the Vietnam Era Veterans’ Readjustment Act.
    5. Seller hereby warrants, certifies, represents and agrees that neither any of the Goods nor any component of any of the Goods (as defined in this Order): a) contains any “class I substance,” as the term is defined in 42 U.S.C. & 7671(3) as now in existence or hereafter amended, or b) has been “manufactured with a process that uses” any “class I substance” within the meaning of 42 U.S.C. & 7671j(d)(2) as now in existence or hereafter amended.
    6. When and if requested by Buyer, as a condition precedent to payment thereof, Seller shall separately certify each invoice as follows: “We certify that the contract deliverables listed hereon were produced in compliance with all applicable requirements of sections 6, 7 and 12 of the Fair Labor Standards Act, as amended, and of regulations and orders of the U.S. Department of Labor issued under section 14 thereof. We further certify that any and all additional contract deliverables will be produced in compliance the same.”

12. Default

      12.1 If Seller breaches any provision of this Order, Buyer may, except as otherwise prohibited by the United States Bankruptcy laws, terminate the whole or any part of this Order, unless Seller cures the breach within ten (10) business days after receipt of Buyer’s notice of breach.
      12.2 For purposes of section 12.1 above, the term “breach” shall include without limitation any (i) proceeding, whether voluntary or involuntary, in bankruptcy or insolvency by or against Seller, (ii) appointment, with or without Seller’s consent, of a receiver or an assignee for the benefit of creditors, (iii) failure to provide Buyer, upon Request, with reasonable assurances of performance or (iv) any other failure to comply with this Order.
      12.3 In the event that Buyer terminates this Order in whole or in part as provided in section 12.1 above, Buyer may procure, upon such terms and in such manner as Buyer reasonably deems appropriate, products similar to the Goods and / or Services as to which this Order is terminated. Seller shall reimburse Buyer upon demand for all additional costs incurred by Buyer in purchasing the similar products.
      12.4 The rights and remedies granted to Buyer pursuant to the Order are in addition to, and shall not limit or affect, any other rights or remedies available at law or in inquiry.
13. Import Requirements
      13.1 Upon Buyer’s request, Seller shall provide Buyer with an appropriate certification stating the country of origin for Goods, sufficient to satisfy the requirements of (i) the customs authorities of the country of receipt, and (ii) any applicable export licensing regulations, including those of the United States.
      13.2 Seller shall remark every Good (or the Good’s container if there is no room of the Good itself) with the country of origin. Seller shall, in re-marking the goods, comply with the requirements of the customs authorities of the country of receipt.
      13.3 If any Goods are imported, Seller shall, when possible, name Buyer to be the importer of record. If Buyer is not the importer of record and Seller obtains duty drawback rights of the Goods, Seller shall, upon Buyer’s request, provide Buyer with documents required by the customs authorities of the country of receipt of prove importation and to transfer duty drawback rights to Buyer.
14. Product Stewardship
      14.1 Seller shall accept back, free of charge, any material included in the products and packaging returned freight prepaid by Buyer from any country that legally requires product take back from the user at the end of product life.
15. Procurement Quality
      15.1 Attached to this Order and these terms and conditions is a procurement quality checklist (option of Buyer). If attached, any item that is marked on the checklist shall apply to the Goods or Services ordered pursuant to this Order and Seller must comply with such additional terms.
16. Miscellaneous
      16.1 A waiver of a breach of any term of this Order will not be construed as a waiver of any succeeding breach of that term or as a waiver of the term itself. A party’s performance after the other’s breach shall not be construed as a waiver of that breach. No failure or delay by either party to enforce or take advantage of any provision or right under this Order shall constitute a subsequent waiver of that provision or right, nor shall it be a waiver of any of the other terms and conditions of this Order.
      16.2 This Order, with such documents as are expressly incorporated herein by reference, contains the final and entire agreement between the Seller and Buyer. No waiver, consent, modification, amendment or change of the terms of this Order shall be binding unless in writing and signed by an authorized representative of Buyer and Seller. In the case of a confliction between the terms and conditions on the face of this Order and the terms and conditions on the reverse side of this Order, the terms and conditions on the face of this Order shall control.
      16.3 In the event of any litigation relating to or arising out of this Order, the prevailing party shall be entitled to recover its actual, reasonable attorney’s fees and costs.
      16.4 This Order, shall be deemed to have been executed and delivered in San Diego, California, and shall be construed and interpreted under the laws of the state of California. Jurisdiction and venue with respect to any suit in connection with this Purchase Order shall reside in the courts of San Diego County, California.
      16.5 Seller agrees to obtain Buyer’s approval before subcontracting this Order or any substantial portion, provided however, that this limitation shall not apply to the purchase of standard commercial supplies or raw materials.
      16.6 Seller represents that is has not received nor given gifts or gratuities in connection with the Order received from Buyer. If at any time Buyer determines that Seller is in violation of the foregoing representation, Buyer may, without charge, terminate this Order upon written notice to Seller.
      16.7 Seller shall not assign this Order in whole or in part without Buyer’s prior written consent.

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