Purchase Order Terms and Conditions

1. Agreement:

This order is Buyer’s offer to Seller and becomes a binding contract, subject to the terms hereof, when accepted by acknowledgement or commencement of performance by Seller. Buyer objects to all additions, exceptions, or changes to these terms, whether contained in any printed form of Seller or elsewhere, unless approved by Buyer in writing. To the extent there are any inconsistencies between these terms and those written on the order, the latter will control. Notwithstanding the foregoing, any separate warranty or promise set forth in any instrument provided by Seller that provides greater warranty protection than contained herein shall be binding on Seller. If this order is cannot be fulfilled as agreed it shall become void automatically unless this period of time is extended by Buyer, in writing.

2. Price:

Unless otherwise specified, the prices stated on this order include all charges for packing, hauling, storage, transportation to point of delivery, and taxes. Sales and use taxes not subject to exemption shall be stated separately in Seller’s invoice.

3. Delivery:

Shipments shall be made to arrive no later than the required delivery date shown. Buyer reserves the right to accept or reject later shipments. If this Purchase Order calls for delivery in installments and Seller fails to deliver an installment on the designated delivery date, Buyer may decline to accept subsequent installments and terminate the balance of this Order. Packing slips, with correct Purchase Order number referenced, shall accompany all shipments. Shipments shall be routed via carrier notes. All orders shall be acknowledged promptly with a definite shipping date shown. Seller shall ensure that all items are correctly classified on the bill of lading to obtain minimum freight rates. Seller shall bear the risk of loss or damage to the goods covered by this order until they are delivered to and accepted by Buyer.

4. Acceptance / Inspection

All Goods shall be received subject to Buyer’s inspection, testing, approval, and acceptance notwithstanding any prior payment for such Goods. Goods rejected by Buyer as non-conforming to this Purchase Order or Goods specifications, whether provided by Seller or the manufacturer, may be returned to Seller at Seller’s risk and expense and, at Buyer’s request, shall immediately be replaced, purchase price refunded or credit given, at the option of Buyer. No substitutions or changes in Goods ordered shall be permitted.

5. Warranty:

Seller makes the following warranties to Buyer, its affiliates and customers regarding Goods furnished hereunder, which warranties shall survive any delivery, inspection, acceptance, payment, or resale of the Goods:

• Goods will not infringe any party’s intellectual property rights;
• Seller has the necessary right, title, and interest to provide the Goods to Buyer, and the Goods will be free of liens and encumbrances;
• Goods are genuine, new, unpulled, unprogrammed, solderable, without bent or formed leads, test dot or other 3rd party markings, are contained in the original manufacturer’s packaging, marked with part number(s) as specified on this Purchase Order, and of the grade and quality specified, unless the Purchase Order expressly provides otherwise;
• Seller expressly warrants that the goods or services ordered shall be merchantable; shall conform to this order, to specifications, drawings, and other descriptions referenced in this order, and to any accepted samples; shall be free from defects in materials and workmanship; shall be free from defects in design unless the design was supplied by Buyer; and shall be fit and safe for the intended purposes.
• Seller expressly warrants that the goods conform to any agreed-to specifications, including, without limitation, compliance with substance prohibitions and restrictions set out in EU Directive 2002/95/EC, Restriction on Hazardous Substances (RoHS) and any other related, implementing laws, rules, regulations, standards and restrictions within the United States, the European Community or other countries.
• Except for the warranties set forth in Sections 5 a) and b), above (IP and title etc.) and compliance with environmental regulations, all of which shall have the maximum warranty period allowed by law, the warranties herein shall extend for a period of One Hundred Twenty (120) days from Buyer’s receipt of the Goods. If Seller breaches any of the foregoing warranties, or the Goods are otherwise defective or nonconforming, during the warranty period Seller shall, at Buyer’s option, promptly replace such Goods, refund or credit Buyer the amount paid for such Goods. Such remedies, however, shall not affect or limit Seller’s indemnification obligations set out below.

6. Indemnification

Except as otherwise expressly limited herein, Seller agrees to indemnify, defend and hold Buyer, its officers, directors, employees, representatives, affiliates, and its customers harmless from and against any and all claims, actions, losses, costs, damages (including reasonable attorney’s fees), penalties and fines they may suffer or incur arising from or as a result of (a) infringement of the intellectual property or proprietary rights of others; (b) personal injury or property damage caused by the Goods; (c) breach of Seller’s warranties and representations herein as relating to the Goods, including, without limitation, defects, conformance or environmental compliance.

7. Setoff:

Any counterclaim against Seller or any of its related entities by Buyer or any of its related entities which arise out of this or any other transaction may be set off against any money due seller under this order.

8. Assignment:

No assignment of this order or of any moneys due or to become due there under shall be binding upon Buyer until its written consent thereto is obtained. Payment to assignee of any claim under this order shall be subject to set-off or recoupment for any present or future claim or claims which Buyer may have against Seller.

9. Confidential:

The Seller shall not disclose any detail connected with this order (except for the benefit of Buyer) to any third party without first obtaining the written consent of Buyer.

10. Breach:

If Seller fails to perform or comply with any provisions of this order, Buyer may cancel this order in whole or in part and may consider such failure or non-compliance as a breach of this contract. Buyer expressly retains all its rights and remedies provided by law in the case of such breach, and no action by Buyer shall constitute a wavier of any such right or remedy.

11. Insolvency:

In the event of the institution of any proceedings by or against either party in bankruptcy or insolvency or under any provisions of the Bankruptcy Act or for the appointment of a receiver or trustee or an assignment for the benefit of creditors of either party, the other party may terminate this order without further cost or liability.

12. Entire Agreement:

This Purchase Order contains the entire understanding between Buyer and Seller with respect to the subject matter hereof and merges and supersedes all prior agreements. No waiver of any breach hereof shall be held to be a waiver of any other or subsequent breach. No modification or amendment shall be effective unless made in writing, dated and signed by duly authorized representatives of both parties. Buyer’s rights and remedies herein are in addition to any other rights and remedies provided by law or in equity.

13. Controlling Law:

This Purchase Order is to be construed and interpreted according to the laws of the State of New York, excluding its conflict of law provisions. The federal and state courts within New York and the County of Suffolk shall have exclusive jurisdiction to adjudicate any dispute arising out of this Agreement. The provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Purchase Order. The prevailing party in any legal action or arbitration brought to enforce this Purchase Order or any of its terms shall be entitled to reasonable attorney’s fees, court costs, fees and expenses.