Purchase Order Terms & Conditions

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1. ACCEPTANCE – This order is Buyer’s offer to purchase the goods and/or services described on the reverse hereof from Seller, or separately if order electronically transmitted. Buyer’s placement of this order with Seller is expressly conditioned upon Seller’s acceptance of all the terms and conditions of purchase contained on or attached to this order. Any additional or different terms or conditions which may appear in any communication from Seller are hereby expressly objected to and shall not be effective or binding unless specifically agreed to in writing by Buyer, and no such additional or different terms or conditions in any printed form from Seller shall be come part of this contract despite Buyer’s acceptance of goods or services, unless such acceptance specifically recognizes and assents to their inclusions. Any objection by Seller to the terms and conditions hereof shall be ineffective unless Buyer is advised in writing thereof within ten days of the date of this order.

3. SHIPPING INSTRUCTIONS – All goods are to be shipped freight prepaid, F.O.B. destination, unless otherwise stated. Where Buyer has so authorized in writing, goods may be shipped F.O.B. shipping point, but Seller shall prepay all shipping charges, route the goods by the common carrier, or the carrier specified, and list said charges as separate item on Seller’s invoice. Each invoice for shipping charges shall be accompanied by the original or a copy of the bill indicating that such charges have been paid. Buyer reserves the right to reject C.O.D. shipments. Seller shall not insure the goods for Buyer’s account during shipment except upon Buyer’s written request.

5. DELIVERY – Time is of the essence, and this order may be terminated if delivery is not made or services are not performed by the date specified on the Buyer’s purchase order. No change in the scheduled delivery date or performance will be permitted without Buyer’s prior written consent. No acceptance of goods or services after the scheduled delivery date will waive Buyer’s rights with respect to such late delivery nor shall it be deemed a waiver of future compliance with the terms hereof.

8. CASH DISCOUNT – If Buyer is entitled to a cash discount, the period of computation thereof will commence on the date of acceptance or receipt of a correctly completed invoice, whichever is later. If an adjustment in payment is necessary due to damage, the cash discount period shall commence on the date on which an agreed adjustment of price is reached. If a cash discount is made part of the contract, but the invoice does not reflect the existence thereof, Buyer is entitled to a cash discount with the period commencing on the date Buyer determines that a cash discount applies.

12. DEFAULT – Buyer may, subject to the provisions of paragraph “13”, by written notice of default to Seller, cancel the whole or any part of this order or exercise any other remedy provided Buyers of goods by law or in equity including any remedy under the Uniform Commercial Code & CISG (Contracts for the International Sale of Goods), in any of the following circumstances: If Seller fails to make delivery of the goods or to perform the services within the time specified herein or any extension thereof; If, in Buyer’s good faith judgment, the Seller fails to perform any of the other provisions of this order or fails to make progress as to endanger performance of this order in accordance with its terms and does not cure such failure within a period of ten days, or such longer period as Buyer may authorize in writing, after receipt of notice from Buyer specifying such failure; Seller is in breach of any of the terms or conditions of this order; or If Seller becomes insolvent or makes an assignment fo the benefit of creditors, or if there shall be instituted by or against Seller any processing under any bankruptcy, reorganization, arrangement, readjustment of debt or insolvency law of any jurisdiction or for the appointment of a receiver or trustee in respect to any of Seller’s property and such proceeding is not dismissed or cured within 60 days.

13. REMEDIES – Not by the way of limitation, the remedies of the parties include: If Buyer cancels this order in whole or part as provide in paragraph “12”. Buyer may procure upon such terms and in such manner as Buyer may deem appropriate goods or services similar to those canceled and Seller shall be liable to Buyer for any excess costs for such similar supplies or services, provided that Seller shall continue the performance of this order to the extent not canceled under the provisions of this order. The rights and remedies of Buyer provided in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law or under this order. The failure of the Buyer to insist upon strict performance of any of the terms of this order or to exercise any rights hereunder shall not be construed as a waiver of Buyer’s rights. The Seller may be excused from performance under this order provided the Seller notifies the Buyer within ten days of discovery of any of the below named events. (a) Such events are, but not limited to, acts of God, or public enemy, acts of Buyer, acts of the government with lawful jurisdiction over Seller in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather. (b) The Sellers’s failure to perform is caused by default of a supplier or subcontractor and if such default arises out of causes beyond the control of both the Seller and the supplier or subcontractor and without the fault or negligence of either of them. (c) The Seller agrees to make a concerted effort to obtain supplies or services from other sources in time to meet required delivery schedule(s). If such events or cases named above cause a supplier default.

14. WARRANTIES – Seller warrants goods supplied and work or services performed under this order conform to specifications herein and are MERCHANTABLE and fit for the particular purposes for which goods are ordinarily employed. Seller further warrants to the Buyer and to any third party ultimately using any item whether such third party is a customer of Buyer or not, that all items delivered under this order will be free from defects in material and workmanship and will conform to applicable specifications, drawings, samples, and descriptions. If Seller is responsible for design of items, Seller warrants that all items delivered under this order will be suitable for use by Buyer, including installation by Buyer in its ultimate products. Buyer’s written approval of designs furnished by Seller shall not relieve Seller of its obligations under this warranty. Seller shall be liable for all damages both to Buyer and its customers incurred as a results of any defect or breach of warranty in any item covered by this order. The foregoing express warranties shall be in addition to any warranty customarily made by Seller of its product and any implied warranties and shall be construed as conditions as well as warranties. The warranties represented and covenants of parties hereto shall survive the delivery of the goods or completion of the work or services provide and be fully enforceable thereafter. Seller’s warranty hereunder is part of consideration fo this order; any payment by Buyer hereunder is conditional upon this warranty remaining in effect; and no modification or other change of this warranty shall be valid unless evidenced by buyer’s written change order.

15. CHANGES – Buyer may at any time by written or electronic notice make changes within the general scope of this order in any one or more of the following: (1) Drawings, designs, or specifications; (2) Method of shipment or packing, (3) Quantities; (4) Delivery schedules, (5) Place of delivery; and (6) Instructions with respect to the rendition of services. If any such change increases or decreases the cost of, or the time required for the performance of the order, an equitable adjustment in the price and/or delivery schedule will be made and set forth in a written modification to this order. Any claim for adjustment by Seller under this cause must be made within five(5) days from the date of receipt of the written notification of the change.

16. QUALITY STANDARDS – If a special brand is listed in this order, the goods being purchased must meet the standard for quality, performance and use of such brand. If Seller is willing to supply a product equivalent to the designated special brand, it must first provide Buyer with descriptive literature identifying its brand, including the quality, performance, and specifications therefor. If Buyer elects to accept goods purported to be equal to the special brand, the goods may be rejected and dealt with as provided in paragraph 12 hereof, if later it is determined to be Non-comforming.

17. INSPECTION AND QUALITY CONTROL – All terms furnished under this order by Seller to Buyer shall be subject to inspection and tests by Buyer, or representatives of third party purchasing Buyer’s product in which items will be used (User’s Representative). To the extent practicable inspection may be made at all times and places, including the period of manufacture and prior to acceptance. If inspections or test are made by Buyer or User’s representative on the premises of Seller, or Seller’s supplier or subcontractor, Seller without additional charge shall provide all reasonable facilities and assistance for the safety and convenience of such inspectors in the performance of their duties. If inspection or test is made at a point other than the premises of Seller, or Seller’s supplier or subcontractor, it shall be at the expense of Buyer except as otherwise provided in this order. In case of rejection Buyer, shall not be liable for any reduction in value of samples used in connection with such inspection or test. All inspections and tests by Buyer shall be performed in such manner as to not unduly delay the work. Buyer reserves the right to charge Seller any additional cost to inspect and test when supplies are not ready at the time such inspection and test is requested by Seller or when reinspection or retest in necessitated by prior rejection. Inspection and acceptance or rejection of the supplies shall be made as promptly as practicable after delivery as may be specified herein, regardless of prior payment. Failure to inspect, accept or reject goods shall neither relieve Seller for responsibility for such supplies as are not in accordance with the order requirements nor impose liability on Buyer. Seller shall provide and maintain inspection and quality control systems acceptable to Buyer covering the items furnished hereunder. Records of all inspection work by both Buyer and Seller shall be kept intact and made available upon request to the other party during the performance of this order and for six years following delivery under this order. The Seller agrees if a special production run is made, the first item produced on this order is subject to first article acceptance prior to further fabrication. If the first piece submitted fails to meet the inspection acceptance requirements, a new first piece will be submitted for approval. This procedure shall be continued until an acceptable first article has been approved. First article acceptance shall be based on the requirements of the drawings, specifications, and purchase documents, as applicable. Acceptance of the first article shall not be considered acceptance of subsequent part production. The submission of a first article shall be accompanied by the physical data found by the supplier, the tool number used to produce the part(s) and, in the case of parts produced in molds, dies, etc., with more than one cavity, the Seller shall submit a first article from each cavity and identify the first article to indicate the cavity it represents. Seller shall provide Buyer appropriate material certifications as described on the reverse hereof, including but not limited to, material, physical, and/or chemical analysis certifications, and OSHA Safety Data Sheets.

18. INFRINGEMENTS – Seller warrants that Buyer’s purchase, installation, and/or use of the goods covered hereby will not result in any claim of Infringement, or actual infringement of any patent, trademark, copyright, franchise, or other intellectual property right. Seller shall indemnify and hold Buyer harmless from and against all claims, losses, expenses, damages, causes of action and liabilities or every kind and nature, including without limitation reasonable attorney’s fees (without waiver of Seller’s obligation to indemnify Buyer hereunder), arising from or out of any breach of the foregoing warranty.

19. INDEMNIFICATION: HOLD HARMLESS – Seller shall indemnify and hold Buyer harmless from and against all claims, losses, expenses, damages, causes of actions and liabilities of every kind and nature including without limitation reasonable attorney’s fees, without waiver of Seller’s obligation to indemnify Buyer hereunder, arising from or out of any alleged breach of any of Seller’s obligations or warranties hereunder or from other acts or omissions of Seller ,its officers, agents, employees, subcontractors and guests, howsoever caused, instituted by persons who purchase from Buyer or use product purchased from Seller.

20. TOOLING – In the case of any tools, dies, jigs, fixtures, patterns, equipment o other facilities of Buyer which may be in the possession of Seller in connection with this order. Seller agrees that his responsibility shall be that of a bailee and that he shall indemnify and hold harmless Buyer from any loss or damage thereto which is caused by or as a result of negligence, act or omission on the part of Seller or its agents, employees or others until such time as such facilities are delivered into the possession of Buyer. With respect to such facilities, Seller will: (1) Make and affix such markings thereon as Buyer may direct; (2) Make no change, modification or alteration thereto without Buyer’s written consent; (3) Make no use thereof, except in the production of material ordered by Buyer; (4) Store the same without charge to Buyer in separated racks or in a designated area of Seller’s plant, in either case, clearly marked “Property of ASAI”; (5) Maintain the same in good condition excepting only ordinary wear and tear. If Seller acquires tools or manufactures them in connection with this order and charges Buyer for the use thereof or a tool service charge in connection therewith, Buyer may, at its option, upon completion or termination of this Purchase Order, elect to take title to such tools and upon receiving notice of such election Seller will deliver such tools to Buyer upon payment by Buyer to Seller of that portion of the cost of such tools which was incurred by Seller at its expense.

23. ENTIRE AGREEMENT – This Purchase Order is intended by the parties as a final expression of their agreement and also is a complete and exclusive statement of the terms thereof, any prior oral or written agreements as to the same subject matter notwithstanding. This contract may not be modified or terminated orally, and no modification nor any claimed waiver of any of the provisions hereof shall be binding unless in writing and signed by the party against whom such modifications or waiver is sought to be enforced.

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