FCC (INDIANA), INC.
FCC (ADAMS), INC.
FCC (NORTH CAROLINA), INC.
PURCHASE ORDER TERMS AND CONDITIONS
Any purchase of Materials by Buyer from Seller is subject to all terms and conditions listed below and on the face of the purchase order, in FCC's Quality Manual, and in all specifications, drawings, samples or other documents referred to herein or therein ("Terms").
- General :
The term "Buyer" means A, B or C as indicated on the face of the purchase order. The term "Seller" means the person or entity selling Materials hereunder. The term "Materials" means the production materials and/or services designated on the purchase order (including without limitation raw materials, components, parts, assemblies, intermediate assemblies, technical data, equipment, materials, tooling, dies, molds, gauges, drawings, services or any other item) to be provided hereunder to Buyer by Seller. All Materials should comply with the provisions of the Buyer's Supplier Quality Manual, which is available from Buyer's Quality Department.
- Acceptance :
Seller's written acceptance or commencement of any performance or service under this order shall constitute Seller's acceptance of these Terms. BUYER OBJECTS TO, AND REJECTS, ALL TERMS OR CONDITIONS PROPOSED BY SELLER IN ITS QUOTATION, ACKNOWLEDGMENT, INVOICE, PACKAGING OR OTHERWISE WHICH CONFLICT WITH OR ARE IN ADDITION TO ANY OF THE PROVISIONS HEREOF, AND SUCH TERMS SHALL NOT BECOME A PART OF THIS ORDER. If this order is deemed to be an acceptance of a prior offer by Seller, such acceptance is conditional on Seller's assent to all additional or different terms and conditions contained herein. No modification of this order shall be binding upon Buyer unless made in writing and signed by Buyer's authorized representative.
- Shipment; Charges :
Notice of shipment shall be provided by Seller to Buyer electronically at the time of shipment. The notice shall be provided in a format approved by Buyer, and shall contain the purchase order number, the quantity and description of Materials, and the method of transportation used. A packing slip must be enclosed with all shipments showing purchase order number and exact quantity and description of materials shipped. No charges will be allowed for boxing, crating, demurrage or storage unless expressly specified on the face hereof. Buyer will not accept or pay any premium delivery charge unless such charge is authorized in writing by Buyer's authorized representative prior to shipment.
- Delivery; Risk of Loss :
TIME IS OF THE ESSENCE. Seller acknowledges that Buyer has strict requirements as to scheduled delivery dates for Materials which are essential to the operation of Buyer's business. Deliveries must be made in accordance with the requirements of the Terms. Buyer is not obligated to accept early deliveries, late deliveries, partial deliveries or excess deliveries. The risk of loss or damage to Materials shall not pass to Buyer until on or after the scheduled delivery date and after Buyer has inspected and accepted the Materials at the location designated for delivery by Buyer.
- Inspection; Rejection :
All Materials delivered to Buyer are subject to Buyer's rights of inspection and rejection. Buyer may at its option retain all or some part of such Materials. Any rejected Materials may be returned within a reasonable time after notice thereof to Seller and at Seller's expense, including storage, transportation, labor and other charges and expenses paid by Buyer in connection therewith. All rejected Materials shall be subject to Seller's risk and liability. No replacement of rejected Materials may be made without Buyer's prior written consent. Seller shall refund to Buyer all monies paid to Seller for rejected Materials. Payment for nonconforming Materials shall not constitute an acceptance thereof, limit or impair Buyer's right to assert any legal or equitable remedy, or relieve Seller's responsibility for latent defects.
- Price; Taxes :
If Seller's quoted prices for Materials covered by this order are reduced (whether in the form of a price reduction, close-out, rebate, allowances, or additional discounts offered to anyone at any time prior to shipment), Seller agrees that the price to Buyer for such Materials will be reduced accordingly, and that Buyer will be billed at such reduced prices. Seller certifies that the prices herein are not higher than prices being charged to other purchasers of similar materials and services at this particular time and do not discriminate against Buyer. Except as otherwise expressly provided in this order, any and all taxes, fees, imposts or stamps required by state, federal or municipal governments are to be paid and assumed by Seller, and Seller shall indemnify Buyer against liability therefor. Seller shall accept any valid sales or use tax exemption certificates.
- Invoices; Payment :
No invoice shall be issued by any party other than Seller. Time for payment shall not begin until thirty (30) to forty-five (45) days after correct and complete invoices or Materials are received by Buyer, whichever is later.
- Changes :
Buyer reserves the right to change quantities, specifications and delivery dates. Price differences resulting from such changes shall be equitably adjusted in writing after Buyer's receipt of documentation in such form and detail as Buyer may direct. Seller shall not ship excess quantities without written permission. Any significant changes to this purchase order must be made in writing by Buyer in the form of a change order and signed by Buyer's authorized representative. Nothing herein shall relieve Seller from proceeding without delay in the performance of this order as changed.
- Cancellation; Termination :
Buyer may cancel all or any part of this order and any or all other contracts or purchase orders between Buyer and Seller, or reduce the quantity of Materials to be delivered hereunder, without liability to Seller, if Seller (a) fails to timely perform services or deliver Materials as required in this order, (b) repudiates or breaches any term or condition of this order, including Seller's warranties, and fails to cure such breach within ten (10) days (or such shorter period as commercially reasonable under the circumstances) after receipt of written notice from Buyer specifying such breach, or (c) becomes insolvent, makes an assignment for the benefit of creditors, is the subject of a proceeding for the appointment of a receiver or trustee, or files a voluntary petition in bankruptcy or is the subject of an involuntary petition in bankruptcy that is not vacated within thirty (30) days from the date of filing. Buyer reserves the right to terminate this order or any part thereof for the sole convenience of Buyer at any time prior to shipment upon written notice to Seller in which event Seller shall be entitled to actual incurred costs.
- Intellectual Property :
Seller as part of the consideration for this order, and without further cost to Buyer, hereby grants to Buyer a worldwide, irrevocable, royalty-free, non-exclusive right and license (a) to use, sell, manufacture and cause to be manufactured products embodying any and all inventions made, conceived or actually reduced to practice in connection with Seller's performance of this order, and (b) to repair, rebuild or relocate and to have repaired, rebuilt or relocated the Materials covered by this order. Seller hereby represents and warrants to Buyer that neither the manufacture and sale nor the use of Materials provided to Buyer will, in any way infringe any patent, patent application, trademark, trademark application, service mark, service mark application, copyright, trade secret, trade name, proprietary writing, invention, improvement, discovery, process, formula or other intellectual property right of any third party.
- Insurance :
Seller agrees to obtain and maintain, at its expense, a policy or policies of liability insurance, with Seller's endorsement naming Buyer as an additional insured, in an amount not less than US $2 million and with such companies and containing such other provisions which shall be satisfactory to Buyer, covering Materials sold to Buyer hereunder. All such policies shall provide that the coverage thereunder shall not be terminated without at least thirty (30) days prior written notice to Buyer. Seller must furnish to Buyer a certificate of insurance at or prior to delivery; provided, however failure of Seller to present such a certificate to Buyer prior to delivery of Materials shall not constitute, or be evidence of, a waiver by Buyer of the requirement that Seller obtain such insurance.
- Representations and Warranties :
Seller warrants that all Materials covered by this order (a) conform to any plans, specifications, drawings, samples or other descriptions furnished or approved by Buyer, (b) are free and clear of liens, claims and encumbrances, (c) are merchantable and free from defect of title or materials or workmanship, and (d) do not infringe on any patent or copyright. Seller knows of Buyer's intended use and expressly warrants that all Materials covered by this order have been selected, designed, manufactured or assembled by Seller, based upon Buyer's stated use, and will be fit and sufficient for the purposes intended by Buyer. Statements of Seller or its sales agents, in its advertising, and in its promotional material as to quality, grade, performance and use of the Materials shall be considered express warranties. These representations and warranties shall survive inspection, acceptance or payment for the Materials delivered hereunder and shall run to Buyer, its successors and assigns, and shall not be deemed exclusive of any other warranties, express or implied.
- Indemnification by Seller :
Seller hereby does RELEASE and shall INDEMNIFY and HOLD HARMLESS Buyer, its owners, divisions, affiliated or related companies, and their successors, assigns, directors, officers, employees, representatives and agents ("Indemnitees"), and at any Indemnitee's option, DEFEND, from and against any and all claims, actions, damages and expenses, including reasonable attorney fees and incidental, special and consequential damages ("Claims"), arising or alleged to arise from (a) any actual or alleged infringement of any patent, trademark, copyright or similar intellectual property interest with respect to any Materials sold to Buyer hereunder, (b) any actual or alleged deficiencies or defects in the Materials, whether latent or patent, (c) violation by Seller, the Materials or the manufacture, possession, use or sale thereof, of any law, rule, regulation or governmental or administrative order, (d) Seller's breach of any Terms, or (e) the act or omission of Seller; irrespective of whether such Claim is caused, or alleged to be caused, in whole or in part by the negligence, breach of contract or warranty, or any other breach of duty by Buyer, or whether such Claim is asserted under a strict or other product liability theory or any other legal theory, or whether it is alleged that Buyer or agents of Buyer, in any way contributed to the alleged wrongdoing or is liable due to a nondelegable duty, incurred or sustained by Indemnitees or any of them as a result of injury to persons or damage to or loss of property. THIS INDEMNITY SHALL BE BROADLY CONSTRUED, SHALL APPLY TO THE FULLEST EXTENT ALLOWED BY LAW, AND SHALL APPLY REGARDLESS OF WHETHER IT IS ALLEGED THAT THE INDEMNITEES WERE SOLELY NEGLIGENT, THAT SELLER WAS SOLELY NEGLIGENT, THAT THE INDEMNITEES AND SELLER WERE JOINTLY NEGLIGENT, OR OTHERWISE; provided, however Seller may not be obligated to indemnify Indemnitees for sole negligence or willful misconduct where such indemnification is contrary to law. In the event any suits or other proceedings, including any alternative dispute resolution proceedings, shall be brought against any one or more of Indemnitees on account of any such injury, damage or violation of law, Seller or its applicable insurer will pay any and all damages incurred by, and all judgment(s) and/or award(s) rendered against, Indemnitees therein and will pay on behalf of such Indemnitees any and all reasonable attorney fees incurred by Indemnitees as a result thereof. The rights of indemnity contained herein shall survive termination of this contract.
- Remedies; Setoff; Waiver :
Buyer's exercise of or failure to insist upon or exercise any right or remedy herein provided shall be without prejudice to the right to exercise or insist upon any other right or remedy provided herein or by law, on the same or any subsequent shipment. All rights and remedies of Buyer shall be nonexclusive and cumulative and may be exercised singly or concurrently by Buyer in its sole discretion. If Buyer has any claim against Seller, it may set off the amount of such claim against any amounts due or becoming due hereunder. No waiver by Buyer of any breach of these Terms shall be held to be a waiver of any other or subsequent breach.
- Limitation of Buyer's Liability; Statute of Limitation :
In no event shall Buyer be liable for anticipated profits, business interruption or incidental or consequential damages. Buyer's liability for any claim arising out of or relating to this order shall be limited to the price allocable to the Materials or unit thereof which gives rise to the claim. Any action by Seller arising out of or relating to this order must be commenced by Seller within one (1) year after the cause of action has accrued.
- Tooling :
Unless otherwise agreed in writing by Buyer, Seller at its own expense shall furnish, keep in good condition, and replace when necessary all tools, jigs, dies, gauges, fixtures, molds and patterns ("Tooling") necessary for the production of the Materials. The cost of changes to the Tooling necessary to make design and specification changes authorized by Buyer shall be paid for, where agreed, by Buyer. Seller shall insure the Tooling with full fire and extended coverage insurance for the replacement value thereof. Seller grants Buyer an irrevocable option to take possession of and title to the Tooling that is special for the production of the Materials upon payment to Seller of the book value thereof less any amounts which Buyer has previously paid to Seller for the cost of such Tooling; provided, however this option shall not apply if such Tooling is used to produce materials that are the standard stock of Seller or if a substantial quantity of like materials are being sold by Seller to others.
- Force Majeure :
Notwithstanding any provision hereof to the contrary, in the event of strikes, slowdowns, lockouts or similar labor problems, riots, wars, insurrections, civil commotions, terrorist acts, any governmental action or inaction (whether valid or invalid), fires, accidents, explosions, floods, or other similar occurrences or causes ("Occurrences") beyond Buyer's control or occurring without Buyer's fault or negligence which affect Buyer's ability to receive and/or use materials or services covered hereby, Buyer, at its option, without penalty or liability to Seller, may (a) suspend or cancel shipment, (b) purchase materials and services from other sources and reduce its schedules to Seller by such quantity, or (c) have Seller provide the materials and services from other sources in quantities and at times requested by Buyer and at the price set forth in this order. Any delay or failure of Seller to perform its obligations hereunder shall be excused if and to the extent such delay or failure results from any Occurrence without Seller's fault or negligence, provided that Seller notifies Buyer in writing of the existence of such Occurrence and the anticipated duration of the delay within ten (10) days from the beginning of the Occurrence.
- Applicable Laws :
This order incorporates by reference, and Seller warrants full compliance with, all applicable laws, rules, regulations, ordinances and executive orders of any competent governmental authority covering the production, sale and delivery of Materials supplied hereunder including, but not limited to, the provisions of the Fair Labor Standards Act of 1938, as amended, and the Occupational Safety and Health Act of 1970, as amended, and the rules and regulations adopted thereunder. Buyer requests that Seller adopt and implement a policy to extend employment opportunities to qualified applicants and employees on an equal basis, regardless of an individual's age, race, color, sex, religion, national origin, disability or other protected status.
- Choice of Law and Forum; Jurisdiction :
This order shall be a contract made and entered into in the State of Indiana and shall be governed by the laws of the State of Indiana, notwithstanding any state's choice of law rules to the contrary. Any dispute arising under or related to this order shall be brought only in a state or federal court of competent jurisdiction sitting in the State of Indiana. The parties hereto agree to waive trial by jury in all proceedings. SELLER CONSENTS IRREVOCABLY TO THE JURISDICTION OF THE INDIANA COURTS OVER ITS PERSON IN THE EVENT THAT FCC(INDIANA), INC. or FCC(ADAMS), INC., ELECTS TO INSTITUTE LITIGATION AGAINST SELLER IN INDIANA PERTAINING TO ANY TRANSACTIONS BETWEEN OR BUSINESS RELATIONSHIP OF THE PARTIES. Service of process may be made upon Seller as provided by Indiana law, or shall be considered effective if served by certified mail, return receipt requested, or air courier. When the Buyer is FCC(NORTH CAROLINA), INC. the SELLER CONSENTS IRREVOCABLY TO THE JURISDICTION OF THE NORTH CAROLINA COURTS OVER ITS PERSON IN THE EVENT THAT FCC(NORTH CAROLINA), INC. ELECTS TO INSTITUTE LITIGATION AGAINST SELLER IN NORTH CAROLINA PERTAINING TO ANY TRANSACTIONS BETWEEN OR BUSINES RELATIONSHIP OF THE PARTIES. Service of process may be made upon Seller as provided by North Carolina law, or shall be considered effective if served by certified mail, return receipt requested, or air courier.
- Entire Agreement; Severability :
The Terms constitute the entire agreement between Seller and Buyer relating to the sale and purchase of Materials covered hereby. If any clause, sentence or provision hereof shall be determined to be invalid, void or unenforceable, such determination shall not in any way affect, impair, or invalidate any other clause, sentence or provision hereof.