Calmax Technology Inc.
Purchase Order Terms & Conditions
ACCEPTANCE - THE TERMS AND CONDITIONS HEREOF BECOME THE EXCLUSIVE AND BINDING AGREEMENT BETWEEN THE PARTIES COVERING THE PURCHASE OF THE GOODS OR SERVICES ORDERED HEREIN WHEN THIS ORDER IS ACCEPTED BY ACKNOWLEDGEMENT OR COMMENCEMENT OF PERFORMANCE. THIS ORDER CAN BE ACCEPTED ONLY ON THESE TERMS AND CONDITIONS, ADDITIONAL OR DIFFERENT TERMS PROPOSED BY SELLER WILL NOT BE APPLICABLE UNLESS ACCEPTED IN WRITING BY THE BUYER. NO CHANGE, MODIFICATION, OR REVISION OF THIS ORDER SHALL BE EFFECTIVE UNLESS IN WRITING AND SIGNED BY BUYER.
PRICE AND DELIVERY. Seller shall furnish the goods covered by this Order (the "Goods") or the services covered by this Order (the "Services") in accordance with the prices and delivery schedule stated on the face of this Order. If prices and/or delivery dates are not stated, Seller shall offer its lowest prices or best delivery dates both of which shall be subjected to written acceptance by Buyer. All prices include all applicable taxes, except sales taxes which are separately shown where applicable. Seller warrants that the prices charged for the Goods or Services Ordered will be as low as the lowest prices charged by the Seller to any customers purchasing similar goods or services in the same or smaller quantities and under like circumstances. Buyer may return, or store at Seller's expense, any Goods delivered more than three (3) days in advance of the delivery date specified for any Goods.
PACKING AND SHIPPING. Unless otherwise specified, when the price of this Order is based on the weight of the Goods, such price is to cover net weight of material Ordered only, and no charges will be allowed for boxing, crating, handling damage, carting, drayage, storage, or other packing requirements. Unless otherwise specified, all supplies shall be packed, packaged, marked, and otherwise prepared for shipment in a manner which is (i) in accordance with good commercial practice, (ii) acceptable to commercial carriers for shipment at the lowest rate of the particular supplier and in accordance with I.C.C. regulations, and (iii) adequate to insure safe arrival of the supplies at the location designated by Buyer. To obtain lowest shipping rates, Seller shall mark on containers handling and loading instructions, shipping information, Order number, item and account number, shipment date, and names and addresses of Seller and Buyer. An itemized packing list shall accompany each shipment.
NONCONFORMING PRODUCT. All suppliers shall notify Calmax Technology Inc. of any potentially nonconforming product prior to shipment and await approval of Calmax Technology Inc. before product is shipped. Upon approval, nonconforming product must be clearly identified and packaged separately from any other product in ths shipment.
F.O.B., TITLE AND RISK OF LOSS. Unless otherwise specified on the face of this Order, the F.O.B. point shall be Buyer's location designated on the face of this Order. If transportation is F.O.B. Seller's location. Seller shall bear all risk of loss or damage to the Goods, and title shall not shift to Buyer until delivery of the Goods to Buyer's location.
INVOICING. After each shipment made or service provided under this Order, Seller shall send a separate invoice, specifying item numbers, accompanied by a bill of lading or express receipt. Payment of invoice shall not constitute acceptance of the Goods or Services and shall be subject to appropriate adjustment for failure of Seller to meet the requirements of this Order. Buyer may offset any amount owed by Seller or any of its affiliated companies to Buyer against any amount owed by Buyer to Seller under this Order.
NOTICE OF LABOR DISPUTES. Whenever an actual or potential labor dispute delays, or threatens to delay, the timely performance of this Order, Seller shall immediately notify Buyer in writing of all relevant information with respect to such dispute.
NOTICE OF CHANGES BY SELLER. Seller shall not make any modification, revisions, engineering changes or other alteration of the Goods or Services, including but not limited to, size, shape, color, function, electrical requirements, cooling, maintainability, compatibility or interchangeability without the prior written authorization of Buyer.
CESSATION OF PRODUCTION. If production of any Goods are to be permanently discontinued at any time within one (1) year after final deliver of such Goods under this Order, Seller shall give Buyer at least one hundred eighty (180) days prior written notice of such discontinuance, during which time Seller shall accept Orders from Buyer for a reasonable quantity of such Goods.
PUBLICITY. Seller shall not make or authorize any news release, advertisement, or other disclosure which shall deny or confirm the existence of this Order without the prior written consent of Buyer, except as may be requested per the terms of this Order.
CHANGES BY BUYER. Buyer may from time to time, by written change Order, suspend performance of this Order in whole or in part, make changes in the drawings, designs, specifications, method of shipment or packing or time or place of delivery of the Goods, reschedule the Services or require additional or diminished Services. If any such change causes an increase or decrease in the cost of or the time required for, performance of this Order, an equitable adjustment shall be made in this contract price or delivery dates or both and this Order shall be modified in writing accordingly. Any claim of adjustment under this Section may at Buyer's option be deemed to be absolutely and unconditionally waived unless asserted in writing (including the amount of the claim) and delivered to Buyer within thirty (30) days from the date of receipt by Seller of the change Order. If the cost of property made obsolete or excess as a result of a change is paid by Buyer, Buyer may prescribe the manner of disposition of such property.
Buyer's, or their end users, engineering and technical personnel are not authorized to change the Goods or Services Ordered or any other provision of this Order. No change Order shall be binding on Buyer unless signed by an authorized representative of Buyer, who shall be designated on the face of this Order and if no such designation is made, then by the President of Buyer.
Nothing in this section shall excuse Seller from performing on the Order as changed.
TERMINATION. a. Without Cause, Buyer may terminate for its convenience, all or any part of this Order at any time by written notice to Seller. Upon such termination, settlement shall be made in accordance with the principles contained in Federal Acquisition Regulations (FAR) 52.249-2 as in effect as of the date of this Order, except that Seller must submit a written termination claim to Buyer within ninety (90) days after the effective date of termination or such claim shall be absolutely and unconditionally waived.
b. If Seller fails to make delivery of the Goods, or fails to perform the Services in accordance with the delivery dates specified in this Order, or fails to make progress as to endanger performance of this Order in accordance with the terms of this Order, and does not cure such failure within ten (10) days after notice from Buyer, Buyer may (in addition to any other right or remedy provided by this Order or by law) terminate all or any part of this Order by written notice to Seller without liability and purchase substitute goods elsewhere, and Seller shall be liable to Buyer for any excess cost occasioned Buyer thereby. Seller shall continue performance of this Order to the extent not terminated pursuant to this Section.
Except with respect to defaults of subcontractors at any tier, Seller shall not be liable to Buyer if the failure to perform this Order arises out of causes beyond the control and without the fault or negligence of the Seller. If the failure to perform is caused by the default of a subcontractor at any tier, and if such default arises out of causes beyond the control of both the Seller and subcontractor, and without the fault or negligence of either of them the Seller shall not be liable to Buyer unless the Goods or Services to be furnished by the subcontractor could be obtained from other sources in sufficient time to permit the Seller to meet the requirement of this Order, regardless of cost to Seller.
If this Order is terminated as provided under this Section, the Buyer, in addition to any other rights provided herein, may require the Seller to transfer title and deliver to the Buyer (i) any completed Goods and (ii) such partially completed Goods and materials, parts, tools, dies, jigs, fixtures, plans, drawings, information, and contract rights as the Seller has specifically produced or specifically acquired for the performance of this Order.
CASH DISCOUNTS. Time in connection with any discount offered will be computed from (i) the scheduled delivery date, (ii) the date of actual delivery, or (iii) the date an acceptable invoice is received, whichever is later. Payment is determined to be made for the purpose of application of the discount as of the date of mailing of the Buyer's check.
OVERSHIPMENTS. Buyer will pay only for maximum quantities Ordered. Overshipments may be held at Sellers risk and expense for a reasonable time awaiting shipping instructions. Return shipping charges for excess quantities will be at Seller's expense.
WARRANTY. a. Seller warrants that all supplies delivered hereunder shall be free from defects in workmanship, material, and manufacture, shall comply with the requirements of this contract, including any drawings or specifications incorporated herein or samples furnished by Seller, and, where design is Seller's responsibility, be free from defects in design. Seller further warrants all supplies purchased hereunder shall be of merchantable quality and shall be fit and suitable for the purposes intended by Buyer. The foregoing warranties shall constitute conditions and are in addition to all other warranties, whether expressed or implied, and shall survive any delivery, inspections, acceptance, or payment by Buyer.
b. If any Goods delivered hereunder do not meet the warranties specified herein or otherwise applicable, Buyer may, at its option, (i) require the Seller to correct at no cost to Buyer any defective or nonconforming supplies by repair or replacement; or (ii) return such defective or nonconforming supplies at Seller's expense to the Seller and recover from the Seller the Order price thereof, or (iii) correct the defective or non-conformant Goods itself and charge Seller with the cost of such correction. The foregoing remedies are in addition to all other remedies at law or in equity or under this Order and shall not be considered to be inclusive. All warranties shall run to the Buyer and to its customers.
c. Buyer's approval of the Seller's material or design shall not relieve Seller of the warranties set forth in this clause, nor shall waiver by Buyer of any drawing or specification requirement for one or more of the items constitute a waiver of such requirements for the remaining items to be delivered herein unless so waived by Buyer in writing. The provisions of this clause shall not limit or affect the rights of Buyer under the clause entitled "INSPECTION."
INSPECTION. a. All Goods purchased hereunder shall 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 final acceptance. If inspection or test is made by Buyer on Seller's premises, Seller, without additional charge, shall provide all reasonable facilities and assistance for the safety and convenience of Buyer's inspectors. No inspection or test made prior to final inspection and acceptance shall relieve the Seller from responsibility for defects or other failure to meet requirements of this Order.
b. In case any item is defective in material or workmanship, or otherwise not in conformity with the requirements of this Order, Buyer shall have the right either to reject it, require its correction, or accept it with an adjustment in price. Any item which has been rejected or required to be corrected shall be replaced or corrected by and at the expense of the Seller promptly after notice. If, after being requested by Buyer, the Seller fails to promptly replace or correct any defective item within the delivery schedule, Buyer may (i) replace or correct such item and charge the Seller the cost occasioned thereby, (ii) without further notice, terminate this Order for defaults in accordance with the "TERMINATION" provisions herein or, (iii) require an appropriate reduction in price.
c. Notwithstanding any prior inspections or payments hereunder, all items shall also be subject to final inspection and acceptance at Buyer's plant within a reasonable time after delivery. The Seller shall provide and maintain an inspection systems which is acceptable to Buyer. Records of all inspection work shall be kept complete and available to Buyer during the performance of this Order and for such further period of at least one year.
d. Seller shall meet requirements in the Calmax Supplier Requirements Manual.
INSOLVENCY, LOSS OF PROFITS, DAMAGE. The insolvency or adjudication of bankruptcy, the filing of a voluntary petition in bankruptcy, or the making an assignment for the benefit of creditors, by either party, shall be a material breach hereof. In no event shall Seller be entitled to anticipatory profit or special or consequential damages.
PATENTS, ROYALTIES, AND ENCUMBRANCES. All Goods supplied must be free from liability of royalties, patent rights, and mechanics' liens or other encumbrances, and Seller agrees to indemnify Buyer against all claims, demands, costs and actions (including attorney fees) for actual or alleged infringement of rights in the use, sale, or re-sale of the Goods or components thereof.
COMPLIANCE WITH LAWS. The Seller warrants that no law, rule, or ordinance of the United States or state, or any other governmental agency has been violated in the manufacture or sale of the Goods or Services covered in this Order, and will indemnify and defend and hold Buyer harmless from loss, cost, or damage as result of any such actual or alleged violation.
GRATUITIES. Seller warrants that it has not offered or given and will not offer or give to any employee, agent, or representative of Buyer any gratuity with a view toward accruing any business from Buyer or influencing such persons with respect to the terms, conditions or performance of any contract with or Order from Buyer. Any breach of this warranty shall be a material breach of each and every contract between Buyer and Seller.
BUYER-FURNISHED PROPERTY. All tools or other materials furnished by the Buyer for use in the performance on this Order shall remain the property of the Buyer, shall be used by the Seller in the performance of this Order only, in accordance with the requirements of the Order relating to such use, and shall be returned to the Buyer when requested upon the completion or termination of the Order to the extent not previously delivered to the Buyer.
PATENT LICENSE. The Seller as part consideration for the purchase Order without further cost to the Buyer hereby grants and agrees to grant to the Buyer and, to the extent requested by Buyer, to a third party, an irrevocable, non-exclusive royalty-free right and license to use, sell, manufacture and cause to be manufactured products embodying all inventions and discoveries made, conceived, or actually reduced to practice in connection with the performance of this Order. Any unpatented knowledge or information concerning Seller's products, methods, or processes which Seller may disclose to Buyer incident to this Order shall, unless otherwise specifically agreed in writing, be deemed to have been disclosed as a part of the consideration for this Order and Seller agrees not to assert any claim by reason of use thereof. Unless otherwise agreed in writing, special dies, tool, patterns, and drawings used in the manufacture of the Goods or Services shall be furnished by and at the expense of Seller. Buyer may at any time reimburse Seller for the cost of the whole or any part of special dies, tools, patterns, and/or drawings and become the owner and entitled to possession thereof.
TOOLING AND DOCUMENTS. All specifications, drawings, or other documents and data furnished by Buyer and all tools, dies, molds, jigs, fixtures, patterns, machinery, special text equipment, special programs and gauges which have been furnished, paid for, or charged against Buyer, or which have had their cost amortized into the cost of the Goods or Services shall be deemed Buyer's property, treated as confidential information and delivered in good condition, normal wear and tear excepted by Seller to Buyer F.O.B. the Seller's plant immediately upon request. Seller warrants that sold items and information will not be used for any work or for the production of any material or parts other than for Buyer without Buyer's written permission.
WAIVER. The failure of Buyer to insist upon the performance of any provision of this Order, or to exercise any right or privilege granted to the Buyer under this Order, shall not be construed as waiving such provision or any other provision of this Order, and the same shall continue in full force and effect. If any provision of this Order is found to be illegal or otherwise unenforceable by any court or other judicial or administrative body, the other provisions of this Order shall not be affected thereby, and shall remain in full force and affect.
LAWS OF THE STATE OF CALIFORNIA. The validity, performance and construction of this Order shall be governed by the laws of the state of California.
DISPUTES. Any dispute arising under this Order which is not disposed of by agreement of the parties shall be decided by a court of component jurisdiction. The parties agree to the jurisdiction of all federal and state courts in California and agree that venue lies exclusively in Santa Clara County California. 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.
COMPLETE AGREEMENT. This Order and any supplemental sheets and changes hereto by Buyer contains the complete and entire Agreement between the parties as to the subject matter hereof, and replaces and supersedes any prior or contemporaneous communications, representations, or agreements, whether written or oral, with respect to the subject matter of this Order.
NOTICE. Notices may be served by mail, facsimile, or courier at the addresses sent forth in this Order, or at any other location subsequently designated. Notice is deemed effective upon the earliest of the following: personal receipt by either party or their agent; written acknowledgement of notice; or 5 days after mailing notice to such location by first class mail, postage pre-paid.
NOTICE. Calmax shall require right of access to supplier facilities involved in the order and to all applicable records for our customer and regulatory authorities. Calmax requires supplier notification and Calmax approval where appropriate for changes in product and/or process definition. Calmax requires our suppliers to flow down to sub-tier suppliers the applicable requirements in the purchasing documents, including key characteristics where required.
NOTICE. To comply with the conflict minerals regulations (http://www.sec.gov/rules/final/2012/34-67716.pdf), called the "Dodd-Frank Act" or "Conflict Minerals" we require all our direct suppliers to be DRC (Democratic Republic of the Congo) conflict-free. Additional materials including a video and links to other support information are available at http://www.conflictfreesmelter.org.