Purchase Order Terms & Conditions
1. Acceptance of Purchase Order: Buyer shall not be bound by this Purchase Order until Seller executes and returns to Buyer the acknowledgment copy of this Purchase Order. Seller shall be bound by this Purchase Order and its terms and conditions when it executes and returns the acknowledgment copy, when it otherwise indicates its acceptance of this Purchase Order, when it delivers to Buyer any of the items ordered herein or when it renders for Buyer any of the services ordered herein. This Purchase Order expressly limits acceptance to the terms and conditions stated herein, and any additional or different terms or conditions proposed by Seller are rejected unless expressly assented to in writing by Buyer. No contract shall exist except for the Agreement and this Purchase Order as executed as provided above.
2. Amendments: The parties agree that this Purchase Order, including the terms and conditions together with any documents attached hereto or incorporated herein by reference contains the complete and final contract between Buyer and Seller; that no agreement or understanding to modify this Purchase Order shall be binding upon Buyer unless in writing and signed by Buyer’s authorized representative. All specifications, drawings, and data submitted to Seller with this Purchase Order or referred to by this Purchase Order are hereby incorporated herein and made a part of this Purchase Order.
3. Changes: Buyer reserves the right at any time to make written changes to any one or more of the following: (a) Specifications, drawings and data incorporated in this Purchase Order; (b) methods of shipment or packing; (c) place of delivery; (d) time of delivery; (e) manner of delivery; and (f) quantities. If any such change causes an increase or decrease in the cost of or the time required for performance of this Purchase Order, Seller shall be entitled to claim an equitable adjustment in the price consistent with original pricing. Any adjustments/requests will be accompanied by written evidence and subject to audit by Buyer. Any claim for adjustment under this Article shall be deemed waived unless asserted within twenty (20) days from the date of receipt by Seller of the change order; provided, however, that Buyer, if it decides in its sole discretion that the facts justify such action, may receive and act upon any such claim submitted at any time prior to final payment under this Purchase Order. Any claim by Seller for adjustment under this Article must be approved by Buyer in writing before Seller proceeds with the claimed adjustment. Price increases shall not be binding on Buyer unless evidenced by an amendment to the Agreement signed by Buyer’s authorized representative.
4. Delivery: Time is of the essence in the performance of this Purchase Order, and if delivery of items is not made in the quantities and at the times specified, or rendering of services is not completed at the times specified, Buyer reserves the right without liability, and in addition to its other rights and remedies, to take either or all of the following actions: (a) direct expedited routings of items (the cost of expedited routing shall be paid by Seller); (b) terminate this Purchase Order by notice to Seller as to items which were not received by Buyer or services which were not rendered at the time notice is sent to Buyer and to purchase substitute items or services elsewhere and charge Seller with any loss incurred; or (c) in the event that the delivery for reasons imputable to the seller creates a stock out situation, the Buyer shall be entitled to claim penalty to the Seller; the penalty shall be two percent (2%) of the portion of the purchase price due on the delayed items for each day of the delay. The total amount of the penalty under clause (c) shall not exceed twenty percent (20%) of the total purchase price.
Seller shall be liable for transportation charges, delays or claims resulting from Seller’s deviation from Buyer’s routing instructions. Seller shall not be liable for excess costs of deliveries or defaults due to causes beyond its control and without its fault or negligence; provided, however, that when Seller has reason to believe that deliveries will not be made as scheduled, written notice setting forth the cause of the anticipated delay will be given immediately to Buyer. If Seller’s delay or default is caused by the delay or default of a subcontractor, such delay or default shall be excusable only if it arose out of causes beyond the control of both Seller and subcontractor and without the fault or negligence of either of them and the items to be furnished or services to be rendered were not obtainable from other sources in sufficient time to permit Seller to meet the required delivery or performance schedule.
Buyer will have no liability for payment for items delivered to Buyer, which are in excess of quantities specified in this Purchase Order and delivery schedules. Such items shall be subject to rejection and return at Seller’s expense, including transportation charges both ways. Buyer will not be liable for any material or production costs incurred by Seller in excess of the amount or in advance of the time necessary to meet Buyer’s delivery schedules.
5. Delivery Instructions: Seller shall only make deliveries during Buyer’s normal business hours and to Buyer’s receiving dock at the appropriate address listed below, or as otherwise notified by Buyer. (for ship from suppliers). This may include international deliveries. The Seller would be required to have all applicable licenses.
456 Creamery Way
Exton, PA 19341
6. Inspection and Acceptance: Payment is due 45 days after the later of the date when Buyer receives a correct invoice or the date when Buyer receives conforming items. All items purchased hereunder are subject to inspection at Buyer’s destination either before or after payment at Buyer’s option. Payment for any items under this Purchase Order shall not constitute acceptance thereof. Buyer reserves the right to reject and refuse acceptance of items which are not in accordance with the instructions, specifications, drawings, and data or Seller’s warranties (express or implied) or which fail to conform to this Purchase Order (whether due to Seller’s failure to perform, Acts of God or otherwise), or which contain other defects, whether latent or obvious. Acts of God are any cause beyond the control of Buyer, which include fires, floods, other environmental issues, strikes and differences with employees. Buyer retains the right to reject items with latent defects that are not discovered until after acceptance of such items, provided such rejection is made within a reasonable period of time after the discovery of the defect.
Goods not accepted will be returned to Seller for full refund or credit or replacement at Buyer’s option and Seller’s risk and expense, including transportation charges both ways. No replacement of rejected items shall be made unless specified by Buyer in writing. In addition, Buyer may make a claim for damages, including manufacturing costs, damage to materials, or articles caused by improper boxing, crating or packing, and loss of profits or other special damages incurred by Buyer. Such right shall be in addition to any other remedies provided by law. Acceptance of all or any part of the items shall not be deemed to be a waiver of Buyer’s right to reject other items or other orders. Acceptance of any of the items shall not bind Buyer to accept future shipments.
7. Packing, Labeling and Containers: No charges for packing or containers may be billed to Buyer unless specified on the face of this Purchase Order. Seller shall prepare labels for the boxes and shipping containers containing such information, if any, as Buyer may specify. Seller shall be liable for damage to materials or articles described herein caused by improper boxing, crating, or packing.
8. Seller¹s Warranties: Seller hereby warrants that the items furnished hereunder shall be free from defects in material, workmanship, and design, of merchantable quality and fit for Buyer’s purposes and that they shall conform with Buyer¹s instructions, specifications, drawings, and data. Seller hereby further warrants that the items furnished hereunder shall conform to all representations, affirmations, promises, descriptions, samples or models forming the basis of this Purchase Order, Seller agrees that these warranties shall survive acceptance of the items. All of the foregoing warranties shall be in addition to any warranties of additional scope given by Seller to Buyer. None of said warranties and no other implied or express warranties shall be deemed disclaimed or excluded unless evidenced by a purchase order change notice or revision issued and signed by Buyer¹s authorized representative. In the event of a breach of warranty, Buyer shall be entitled to all remedies under the Uniform Commercial Code or other applicable law arising from such breach.
9. Interchangeability: All items purchased hereunder (or part hereof) are to be completely interchangeable with like items (or parts thereof) purchased from Seller previously by Buyer or Buyer’s customer. To this end, all designs, processes or procedures used by Seller in supplying like items (or parts thereof) previously are to be used by Seller in supplying the items (or parts thereof) purchased herein. Any deviation to any of Seller’s designs, processes or procedures requires Buyer¹s prior written approval. Seller shall be liable for all of Buyer’s costs associated with the discovery and retrofit of non-interchangeable items (or parts thereof) resulting from Seller’s failure to comply with the requirements of this Article.
10. Property of Buyer: Unless otherwise provided in this Purchase Order or agreed to in writing, property of every description including but not limited to all tooling, tools, equipment, and materials furnished or made available to Seller, title to which is in Buyer, and any replacement thereof shall be and remain the property of Buyer. Such property, other than material intended to be modified shall not be modified without the written consent of Buyer. Such property shall be plainly marked or otherwise adequately identified by Seller as “Property of Neutronics, Inc.” and shall be safely stored separately and apart from Seller¹s property. Seller shall not use such property except for performance of work hereunder or as authorized in writing by Buyer. Such property, while in Seller’s possession or control, shall be kept in safe and good condition, shall be held at Seller’s risk, and shall be kept insured by Seller, at its expense, in an amount equal to the replacement cost with loss payable to Buyer. To the extent such property is not material consumed in the performance of this Purchase Order, it shall be subject to inspection and removal by Buyer, and Buyer shall have the right of entry for such purposes without any liability to Seller. As and when directed by Buyer, Seller shall disclose the location of such property, prepare it for shipment, and ship it to Buyer in as good condition as originally received by Seller, reasonable wear and tear excepted.
11. Special Tooling: The term “special tooling” as used in this Article shall be deemed to include all jigs, dies, fixtures, molds, patterns, special cutting tools, special gauges, special test equipment, other special equipment and manufacturing aids, and drawings and any replacements of the foregoing, acquired or manufactured or used in the performance of this Purchase Order which are of such a specialized nature that without substantial modification or alteration, their use is limited to the production of the items or parts thereof or performance of the services of the type required by this Purchase Order. The term does not include (a) items of tooling or equipment heretofore acquired by Seller, or replacement thereof, whether or not altered or adopted for use in the performance of this Purchase Order, (b) consumable small tools, (c) general or special machine tools or similar capital items, or (d) tooling, title to which is in Buyer.
Seller agrees that special tooling shall be retained and not used or reworked except for performance of work hereunder or as authorized in writing by Buyer. While in Seller’s possession or control, Seller warrants that it will keep the special tooling in good condition fully covered by insurance, and will replace it when lost, destroyed, or necessary for performance of work hereunder. Upon cessation or termination of the work under this Purchase Order for which the special tooling is required, Seller shall furnish Buyer a list of the items, parts, or services for the manufacture or performance of which such special tooling was used or designed and a list indicating where each item of the special tooling is located, and shall transfer title to and possession of the special tooling to Buyer [for an amount equal to the reversed amortized cost thereof], or dispose thereof as Buyer may direct in writing. In addition, Buyer shall have the right to take possession of any special tooling at any time, title to which Buyer acquires hereunder, [upon payment of Seller’s reversed amortized cost], and Seller grants Buyer the right of entry for such purposes which right may be exercised by Buyer without any liability to Seller.
12. Press Releases: The Seller agrees that no acknowledgement or other information concerning this order and the goods or services provided hereunder will be made public by Seller without the prior written agreement of buyer.
13. Confidentiality, Inventions: All information furnished or made available by Buyer to Seller or to Seller’s employees or subcontractors in connection with the items or services covered by this Purchase Order shall be treated as confidential and shall not be disclosed by Seller, its employees, and subcontractors to any third party either in whole or in part without Buyer’s prior written consent. Seller agrees not to assert any claim against Buyer with respect to any information which Seller shall have disclosed or may hereafter disclose to Buyer in connection with the items or services covered by this Purchase Order. Seller agrees that all designs, drawings, processes, compositions of material, specifications, software, mask works or other technical information made or furnished by Seller or provided by Buyer in connection with the items or services covered by this Purchase Order, including all rights thereto, shall be the sole and exclusive property of Buyer, free from any restriction, and Seller shall protect same against unauthorized disclosure to or use by any third party.
Seller agrees that, as to all inventions and improvements in such designs, drawings, processes, compositions of material, specifications, software, mask works or other technical information made or furnished by Seller in connection with the items or services covered by this Purchase Order, Seller will promptly identify and disclose such inventions or improvements to Buyer and execute or obtain the execution of any papers and take such actions as may be necessary to perfect ownership of the inventions or improvements in Buyer or as may be necessary in the procurement, maintenance, or enforcement by Buyer of any patent, trademark, copyright, trade secret, mask work right or other proprietary right pertaining to the inventions or improvements. Seller hereby appoints Buyer as Seller’s attorney-in-fact to execute such papers or take such actions. The confidentiality and assignment of inventions obligations of this Article shall survive termination or completion of this Purchase Order.
The Seller agrees to exclusively manufacture the items covered by this Agreement for the Buyer. The Seller shall not sell any item covered by this Agreement directly or indirectly to any of Buyer’s customers or any third party operations.
14. Intellectual Property Indemnification: Seller agrees (a) to defend, indemnify and hold harmless Buyer, its successors and customers against all claims, demands, losses, suits, damages, liability and expenses (including reasonable attorney¹s fees) arising out of any suit, claim or action for actual or alleged direct or contributory infringement of or inducement to infringe, any United States or foreign patent, trademark, copyright, mask work or other proprietary right by reason of the manufacture, use or sale of the items or services covered by this Purchase Order, including infringement arising out of compliance with specifications furnished by Buyer, or for actual or alleged misuse or misappropriation of a trade secret resulting directly or indirectly from Seller’s actions, (b) to waive any claim against Buyer under the Uniform Commercial Code or otherwise, including any hold harmless or similar claim, in any way related to a claim asserted against Seller or Buyer for patent, trademark, copyright or mask work right infringement or the like, including claims arising out of compliance with specifications furnished by Buyer, and (c) that Buyer shall have a worldwide, nonexclusive, royalty free, irrevocable license to use, sell and have sold, repair and have repaired, and reconstruct and have reconstructed the items covered by this Purchase Order. Seller assigns to Buyer all right, title and interest in and to all trademarks, copyrights, and mask work rights in any material created for Buyer in connection with this Purchase Order. The obligations of this Article shall survive termination or completion of this Purchase Order.
15. Indemnification: Seller further agrees to indemnify and hold Buyer harmless from any and all losses, liabilities, damages, claims, demands, suits, actions, proceedings, subrogation’s and expenses, including court costs and reasonable attorneys fees, related in any way to this Purchase Order, or the services performed or items delivered under this Purchase Order, except for items manufactured entirely to Buyer’s specifications, which are claimed or made by any person, firm, association or corporation, including employees, workers, servants or agents of Seller and its subcontractors arising from any cause or for any reason whatsoever. Seller further agrees upon receipt of notification to promptly assume full responsibility for the defense of any and all such suits, actions, or proceedings which may be brought against Seller or against Buyer. In the event Buyer’s machinery or equipment is used by Seller in the performance of any work that might be required under this Purchase Order, such machinery or equipment shall be considered as being under the sole custody and control of Seller during the period of such use by Seller.
16. Insurance: If this Purchase Order covers the performance of labor for Buyer, Seller agrees to indemnify and protect Buyer against all liability, claims or demands for injuries or damages to any person or property growing out of the performance of this Purchase Order. Seller further agrees to furnish an Insurance Carrier’s Certificate showing that Seller has adequate insurance coverage in the following minimum amounts:
(a) Worker’s Compensation; Statutory limits for state(s) in which the work is to be performed.
(b) Comprehensive General Liability, including Contractual Liability; Completed Operations/Products; Broad Form Property Damage; and Contractor’s Protective Liability, if subcontractors are used. Minimum limits Personal injury, including death and Property Damages $250,000 each occurrence, $1,000,000 aggregate.
(c) Automobile Liability, including Owned, Hired and Non-owned vehicles. Minimum limits-Bodily injury $250,000 each person, $500,000 each occurrence and Property Damage $250,000 each occurrence.
Said Certificate must set forth the name of insurer, policy number, expiration date, limits of liability and a provision providing for at least ten (10) days written notice of cancellation. If Seller is a self-insurer, the Certificate of the Department of Labor and industry of the State in which said labor is to be performed must be furnished by such Department directly to Buyer. Compliance by Seller with insurance requirements does not in any way affect Seller’s indemnification of Buyer under Article 13 above.
17. Cancellation for Default: Buyer shall have the right to cancel for default all or any part of the undelivered portion of this Purchase Order if Seller fails to make reasonable progress towards completion of the Purchase Order at the times specified, if Seller does not make deliveries as specified in the delivery schedule, if Seller breaches any of the terms hereof including warranties of Seller, if Seller makes an arrangement, extension or assignment for the benefit of creditors, if Seller dissolves or otherwise ceases to exist or conduct business in the ordinary course, or liquidates all or substantially all of its assets, if Seller becomes insolvent or if Seller generally does not pay its debts as they become due. If this Purchase Order is canceled for default, Buyer may require Seller to transfer title and deliver to Buyer, any (a) completed items, and (b) partially completed items and materials, parts, tools, dies, jigs, fixtures, plans, drawings, information, and contract rights that Seller has specifically produced or acquired for the terminated portion of this Purchase Order. Seller shall also protect and preserve property in its possession in which Buyer has an interest. The rights and remedies of Buyer set forth in this Article are in addition to, and not in lieu of, any other remedies which Buyer may have in law or equity or pursuant to other Articles of this Purchase Order. If, after cancellation pursuant to this Article, it is determined by a court of competent jurisdiction, or otherwise, that the Seller was not in default, or that the default was excusable, the rights and obligations of the parties shall be the same as if the termination had been issued pursuant to Article 16 hereof. Prior to Buyer exercising its right to cancel for default, Buyer may elect to provide Seller an opportunity to cure Seller’s default. If Buyer elects to provide Seller an opportunity to cure its default, Buyer shall first provide Seller written notice of Seller¹s default. Seller must then outline in a writing postmarked within ten (10) days of receiving Buyer’s notice of default how Seller intends to cure Seller’s default. Buyer shall evaluate Seller’s written response and determine whether to grant Seller a period of time within which Seller may cure its default. Any time period granted to Seller to cure a default will vary, depending on the circumstances surrounding the default.
18. Termination for Convenience: Buyer may terminate performance of work under this Purchase Order in whole or from time to time in part by written notice of termination, whereupon Seller will stop work on the date and to the extent specified in the notice and terminate all orders and subcontracts to the extent they relate to the terminated work. Seller will promptly advise Buyer of the quantities of applicable work and material on hand or purchased prior to termination and the most favorable disposition that Seller can make thereof, Seller will comply with Buyer’s instructions regarding transfer and disposition of title to the possession of such work and material. Within 60 days after receipt of such notice of termination, Seller will submit all its claims for payment as specified in this Section 16 resulting from such termination. Buyer will have the right to check such claims at any reasonable time or times by inspecting and auditing the records, facilities, work or materials of Seller relating to this Purchase Order. Buyer will pay Seller without duplication the Purchase Order price for finished work accepted by Buyer and the cost to Seller of work in process and raw materials allocable to the terminated work, based on any audit Buyer may conduct and generally accepted accounting principles, less, however (a) the value or cost (whichever is higher) of any items used or sold by Seller without Buyer’s consent; (b) the agreed value of any items used or sold by Seller with Buyer’s consent; and (c) the cost of any defective, damaged or destroyed work or material. Buyer will make no payments for finished work, work in process or raw material fabricated or procured by Seller in excess of the aggregate price specified in this Purchase Order, less payments otherwise made or to be made, and adjustments shall be made reducing the payments hereunder for cost of work in process and raw material to reflect on a pro rata basis any indicated loss on the entire Purchase Order had it been completed. Payment made under this Article constitutes, Buyer’s only liability in the event this Purchase Order is terminated pursuant to this Article. Except as otherwise provided in this Purchase Order, the provisions of this Article will not apply to any cancellation by Buyer for default by Seller or for any other cause allowed by law or under this Purchase Order. Except as otherwise provided in Article 15, the provisions of this Article will not apply to any cancellation by Buyer for default by Seller. In no event shall Seller be entitled to anticipatory profits or to special or consequential damages under this Purchase Order.
19. Compliance with Applicable Laws: Seller agrees that, in the performance of this Purchase Order, it will comply with all applicable laws, statues, rules, regulations or orders of the United States government or of any state or political subdivision thereof. Without limiting the generality of the foregoing, Seller agrees that in order to be approved for payment it must include on all invoices the following statement:
“Seller represents that, with respect to the production of the items covered by this invoice, it has fully complied with all provisions of the Fair Labor Standards Act of 1938, as amended.”
20. Executive Orders: Seller agrees that the representations and provisions required by Executive Order 11246, as amended by Executive Order 11375 (Equal Opportunity), Executive Order 11625 (Minority Business Enterprises), Executive Order 11701 (Affirmative Action for Disabled Veterans and Veterans of the Vietnam Era), and Executive Order 11758 (Employment of the Handicapped) are hereby incorporated into and made a part of this Purchase Order.
21. Waiver: The failure of Buyer to insist, in any one or more instances upon the performance of any of the terms, covenants or conditions of this Purchase Order or to exercise any right hereunder, shall not be construed as a waiver or relinquishment of the future performance of any such terms, covenants or conditions or the future exercise of such right, but the obligation of Seller with respect to such future performances shall continue in full-force and effect.
22. Assignment: None of the sums due or to become due nor any of the work to be performed under this Purchase Order shall be assigned by the Seller nor shall Seller subcontract for completed or substantially completed materials called for by this Purchase Order without Buyer’s prior written consent, which consent may be withheld for any reason in Buyer’s sole discretion.
23. Remedies: The remedies provided for herein shall be cumulative and in addition to any other or further remedies provided by law or equity. Buyer shall have the right to set off against any amounts payable by Buyer to Seller under this Purchase Order or otherwise. In the event of any disputes arising under this Purchase Order, Buyer and Seller shall proceed diligently with the performance required hereunder pending resolution of any such dispute. If any portion of this Purchase Order is invalid or unenforceable, the remaining portions of this Purchase Order shall remain valid and enforceable.
24. Dispute Resolution: In the event of a dispute between the parties arising out of or related to this Purchase Order which solely concerns monetary damages or money due, the parties agree that a meeting shall be held promptly attended by representatives of each party having decision-making authority regarding the dispute to attempt in good faith to negotiate a resolution of the dispute. If within thirty (30) days after such meeting the parties have not succeeded in negotiating a resolution of the dispute, the parties shall use their best efforts to select an alternative dispute resolution procedure (“ADR”), such as a arbitration or mediation, to resolve the dispute. If the parties are unable to agree upon a form of ADR within fifteen (15) days after the thirty (30) day negotiation period, then either party may pursue other available remedies upon seven (7) days written notice to the other party of its intent to do so. If the parties are able to agree upon a form of ADR, they shall pursue its implementation in good faith and in a timely manner. In the event the ADR does not result in a resolution of the dispute after a reasonable period of time, then either party may pursue other available remedies upon seven (7) days written notice to the other party specifying its intended course of action.
25. Governing Law: This Purchase Order shall be governed, interpreted and construed by, and in accordance with, the laws of the Commonwealth of Pennsylvania.