Terms and Conditions
1. REVOCATION AND EFFECT OF ORDER
This Order may be revoked at any time prior to ABCC’s receipt of written acceptance by Seller. To the extent that this Order might be treated as an acceptance of Seller’s prior offer, such acceptance is expressly made on condition of assent by Seller to the terms hereof, and the shipment of the products covered by this Order (“Goods”) by Seller shall constitute such assent.
Time is of the essence in this Order. Delivery of the Goods shall be made pursuant to the schedule, via the carrier, and to the place specified on the face hereof unless changed by written instructions from ABCC prior to shipment. Seller shall promptly inform ABCC of any anticipated delay in shipment. ABCC reserves the right to return, shipping charges collect, all Goods received more than three (3) business days in advance of the specified delivery date or after the specified delivery date. If this Order calls for delivery in installments and Seller fails to deliver an installment on the designated delivery date, ABCC may decline to accept subsequent installments and terminate the balance of this Order.
3. SHIPPING INSTRUCTIONS
Unless otherwise specified on the face hereof, all Goods shall be packaged by Seller in suitable containers to permit safe transportation and handling. Each delivered container must be labeled and marked to identify contents without opening, and all boxes and packages must contain packing sheets listing contents. ABCC’s purchase order number, as well as ABCC’s part number(s), must appear on all shipping containers, packing sheets, delivery tickets, and bills of lading. All Goods shall be shipped on carriers certified compliant with C-TPAT (Customs-Trade Partnership Against Terrorism).
4. TITLE AND RISK OF LOSS
Unless otherwise specified on this Order, Goods shall be delivered to ABCC’s location designated on the face of the purchase order, at which time title and risk of loss on the Goods shall pass to ABCC. If any of the ordered Goods are destroyed prior to the time risk of loss passes to ABCC, ABCC may cancel this Order as to the destroyed Goods or require the prompt delivery of substitute Goods of equal quantity and quality.
5. PRICE AND PAYMENT
(a) Unless otherwise provided in Buyer’s Order, Seller shall not issue invoices and Buyer shall make no payment prior to physical delivery of Goods or completion of Services. Seller shall issue individual invoices showing Buyer’s Order number, line item number(s), part number(s), description(s), and quantity invoiced. Shipping charges and all applicable taxes, or charges for which Buyer has agreed to pay and has not furnished an exemption certificate, shall be separately itemized on Seller’s invoices. Unless such charges are itemized, Buyer may take the applicable discount on the full amount of each invoice.
(b) Buyer shall make payment to Seller in accordance with the payment terms delineated on the face Buyer’s Order upon receipt of correct invoices for Goods and/or Services delivered to and accepted by Buyer. Any payment discount offered by Seller shall be computed from the later of (a) the date of delivery, or (b) the date a correct invoice is received by Buyer. For purposes of earning the discount, payment shall be deemed to have been made on the date Buyer’s check is mailed, or the date funds are electronically transferred to Seller’s account.
6. IN-PROCESS INSPECTION, AUDITS, AND SYSTEM SURVEILLANCE
Buyer shall have right to perform in-process inspection, audits, and system surveillance at Seller and Seller’s subcontractors’ facilities as part of verification of conformance to the requirements of this PO. Work under this PO is subject to Buyer’s periodic audit of Seller’s compliance with Seller’s internal procedures and other documents applicable to this PO. Seller shall provide, at no cost to Buyer, Government and or appropriate regulatory agencies, suitable facilities at Seller and Seller’s subcontractors’ manufacturing locations for Buyer, Government, and regulatory agency representatives to perform compliance verification. Seller shall include the provisions of this paragraph (6) in each purchase order, if any, with each of its subcontractors where work is being performed or is scheduled to be performed in connection with this PO, and shall require that this paragraph (6) is inserted in all subcontracts at every tier. Seller shall maintain complete records of all manufacturing, inspecting and testing in connection with the Items. At Buyer’s election, such records shall be made available to the Buyer, Buyer’s Customers and/or appropriate regulatory agencies during the performance of this PO and for at least three (3) years after completion of this PO or for such longer periods, if any, as may be specified elsewhere in this PO. Upon Buyer’s request therefore, Seller shall forward such records to Buyer at no cost to Buyer.
Seller warrants to ABCC and its customers that the Goods shall be free of liens, new and unused, and perform in accordance with their published specifications and be free from defects in materials, workmanship and design for a period of one year from ABCC’s receipt of such Goods. Goods not meeting this warranty may be returned to Seller for credit or replacement, and Seller will be responsible for governmental fines levied for failure to meet Seller’s environmental specifications. Should Goods shipped in any 90-day period to ABCC or should all Goods received by ABCC experience a failure rate of more than 3% from the same defect or more than 5% from cumulative defects during the warranty period, Seller will be responsible for all reasonable costs incurred in rectifying such failures, including testing and field-recovery costs. Seller is responsible for immediately notifying ABCC of any non-conformances that may affect the product that are discovered after delivery of the product to the Buyer. Items failing to conform to all applicable drawings, specifications, and/or other Purchase Order requirements shall not be delivered to ABCC without documented written approval from ABCC Quality Assurance. ABCC reserves right of entry to Supplier’s facility and any applicable sub-tier supplier facilities for the purpose of verifying compliance with all requirements of this order. ABCC and any customer or their representative shall have the right to perform in-process inspections, audits and system surveillance as part of the verification process. Supplier shall provide suitable facilities to perform these verifications to ABCC and any customer or their representative at no cost to ABCC.
8. ITEMS FURNISHED BY ABCC
Unless otherwise specified by ABCC in writing, all designs, tools, patterns, drawings, data, materials, and equipment supplied or paid for by ABCC to Seller shall remain the property of ABCC, shall be used only for making the Goods for ABCC, shall be insured by Seller at replacement value, and shall be returned to ABCC in good condition upon completion of this Order. Seller assumes all responsibility for the accuracy of tooling used in the production of the Goods, whether such tooling is fabricated by Seller or furnished by ABCC.
Seller agrees to indemnify, defend and hold ABCC and its customers harmless from all costs, losses, penalties, fines, liabilities and damages arising from third-party claims alleging (a) infringement by the Goods of intellectual property or proprietary rights, (b) personal injury or property damage caused by the Goods, (c) defects in the Goods which amount to a breach of Seller’s warranties in Section 7, or (d) breach of Section 15.
ABCC may, by purchase order amendment issued to Seller, change (a) the method of shipment or packing, (b) the drawings, designs, or specifications, (c) the place of delivery, or (d) the shipment date. Seller shall promptly inform ABCC of any modifications to the delivery schedule necessitated by the changes. Within 3 days from receipt of a purchase order amendment, Seller shall notify ABCC in writing of any increase or decrease in the cost of performance caused by a purchase order amendment and provide supporting documentation. ABCC shall make an equitable adjustment in the Order to reflect valid cost variances by the requested ABCC changes. Seller shall advise ABCC in writing of any foreseeable part shortages, and shall advise ABCC in writing 6 months in advance of obsolescence and/or end-of-life situations that could prevent Seller from supporting ABCC ability to order Goods.
Supplier must notify ABCC of:
– Non-conforming product and obtain organizational approval for nonconforming product disposition
– changes in product and/or process, changes of suppliers, changes of manufacturing facility location and, where required, obtain organizational approval.
11. TERMINATION AND REMEDIES
ABCC may terminate this Order in whole or in part at any time by written notice to Seller, even Goods designated as non-cancelable/non-returnable, unless ABCC signed an NCNR Acknowledgement form . Seller will thereupon immediately (a) stop work on the cancelled Goods (b) notify its subcontractors to do likewise, (c) cancel orders for components for the cancelled Goods, (d) return unneeded components for cancelled Goods to their suppliers or divert such components to jobs for other customers, and (e) broker un-returnable, un-needed components for cancelled Goods. Seller shall not be entitled to compensation for cancelled non-custom Goods. Except for termination due to default or delay of Seller, Seller shall be entitled to compensation for cancelled custom Goods and custom components thereof on hand at the termination date as follows. ABCC will purchase finished Goods at the Order price, work-in-process at a reasonable pro-rata percentage of the finished Goods Order price based on the percentage of completion, and custom components for the cancelled Goods, which Seller properly ordered and was not able to cancel, sell, or broker using diligent efforts within 90 days after cancellation, at Seller’s cost for such custom components. ABCC shall also pay any cancellation or restocking fees incurred in the return of components for the cancelled Goods. The total paid by ABCC for such cancellation shall not exceed the price on the Order for the cancelled Goods. In the event that ABCC breaches its obligations under this Order, including without limitation wrongful rejection of Goods, Seller’s exclusive remedy shall be to receive damages for the Goods in question as if such Goods were cancelled, computed in the manner set forth in this section. In no event shall Seller be entitled to incidental, consequential, special, or punitive STANDARD TERMS AND CONDITIONS OF PURCHASE Rev. 0 damages for ABCC’s breach of the terms and conditions of this Order.
No claim or right arising out of the breach of this Order by Seller can be discharged by a waiver of the claim or right by ABCC unless the waiver is supported by consideration and is in writing signed by ABCC.
Seller shall not assign its rights or obligations under this Order without the advance written permission of ABCC. ABCC may assign its rights under this Order to a subsidiary or affiliate upon written notice to Seller.
Seller shall not, without first obtaining ABCC’s written permission, advertise, publish, or disclose the terms, details, or specifications of this Order, the amount of revenue generated or to be generated from this Order, or the fact that is has furnished or has contracted to furnish ABCC with the Goods.
15. COMPLIANCE WITH LAWS
Seller shall comply with all applicable laws concerning the manufacture and distribution of Goods, and shall ensure that its activities in performance of this agreement shall not cause ABCC to be in violation of any laws, including without limitation import or export laws, security requirements, materials content, packaging regulations, Social Responsibility code of conduct requirements, environmental regulations, and any applicable Supply Chain security guidelines such as C-TPAT, of the countries in which ABCC conducts business.
Seller shall comply with packaging regulations of destination countries including, but not limited to, ISPM 15 “Requirements of Wood Packaging Materials.”
Seller expressly warrants that, unless otherwise specifically noted by ABCC, all Goods shall comply with all applicable hazardous substance content regulations including, but not limited to, the EU directive on the restriction of the use of certain hazardous substances in electrical and electronics equipment, Directive 2002/95/EC (“RoHS”). Seller shall deliver a certificate of compliance for such regulations prior to initiation of product shipments and Seller may be required, at ABCC discretion, to deliver a certificate of compliance with each product shipment. If requested by ABCC, Seller agrees to provide evidence of compliance, which may include but is not limited to test results, test verification and lab reports. Such evidence shall be retained by Seller to be made available to ABCC on request, for a minimum of four (4) years from date of test. Seller shall defend, indemnify and hold ABCC harmless from and against the payment of damages, costs, expenses, liabilities and settlement amounts incurred in conjunction with any suit, claim or action by any third party arising from any breach of supplier’s obligations or performance to compliance thereof.
16. DISPUTE RESOLUTION
Any dispute arising out of or relating to this Order shall be settled by binding arbitration under the applicable rules and procedures of the arbitration bodies listed as follows. For any ABCC buying entity incorporated in the United States, California laws apply and disputes will be settled before the Judicial Arbiter Group, Inc. (“JAG”), with mandatory venue in the state of California. For any ABCC buying entity incorporated in the European Union, the laws of England apply and disputes will be settled before the London Court of International Arbitration (“LCIA”), with mandatory venue in London. For any ABCC buying entity incorporated in China, the laws of the People’s Republic of China apply and disputes will be settled before the China International Economic and Trade Arbitration Commission (“CIETAC”), with mandatory venue in Beijing. For any ABCC buying entity incorporated in North Asia (excluding China), the laws of the Special Administrative Region of Hong Kong apply and disputes will be settled before The Hong Kong International Arbitration Centre (“HKIAC”), with mandatory venue in Hong Kong. For any ABCC buying entity incorporated in South Asia or South East Asia, Singapore laws apply and disputes will be settled before The Singapore International Arbitration Centre (“SIAC”), with mandatory venue in Singapore. The parties hereby knowingly and voluntarily, and having had an opportunity to consult with counsel, waive all rights to trial by jury.
17. INTENDED BENEFICIARIES
Seller agrees that ABCC customers are intended beneficiaries of Sections 7 (WARRANTIES), 9 (INDEMNITY), 15 (COMPLIANCE WITH LAW). Seller further agrees that any intended beneficiaries identified in this Agreement are creditor beneficiaries.
This Order, including the provisions on its face and these terms and conditions, contains the entire agreement between the parties concerning the purchase and sale of the Goods. Except to the extent ABCC has relied upon statements and writings of Seller and Seller’s agents, there are no oral understandings, representations, or agreements relative to this Order which are not fully expressed herein. Subject to the provisions hereof, this Order shall be construed and governed by the laws of the State of Colorado, excluding those portions relating to conflicts of laws. The United National Convention on Contracts for the International Sale of Goods shall not apply. Unless a general business agreement (or other similar written agreement) is in place between Buyer and Seller, by accepting this purchase order, Seller warrants that Seller is familiar with and agrees to be bound by the above ABCC’s standard terms and conditions of sale, which can also be found at the following website: http://abcc-usa.com/
19. REQUIREMENT FOR SUPPLIER PERSONNEL AWARENESS
1-Their contribution to product or service conformity 2-Their contribution to product safety 3-The Importance of ethical behavior.
20. RIGHT OF ENTRY
ABCC, our customers, Government and Regulatory Agencies, shall have Right of Entry to verify the quality of work, records and or materials at any time as deemed necessary.
21. All information in the contract must be held in confidence by the supplier and no third party request for information will be authorized unless instructed in writing by customer or its representative. All documents to be retained for 10-year minimum; unless an extended retention period is requested by customer quality requirement. After the retention period the supplier agrees to either return or destroy any and all related documents.