The following Terms and Conditions govern the purchase order and its attachments, all of which are incorporated by reference(“Order”).
1.0 Acceptance.This Order by One Theory Microsystems or one of its affiliates identified in theOrder ("Buyer" or “OTM”) is an offer which shall become a binding contract, subject to the expressterms and conditions hereof, when accepted by acknowledgment and/or commencement ofperformance. If there is a conflict between this document and another, the following order ofprecedence shall apply (unless otherwise expressly agreed to by both parties in writing):
(1)a Master Purchasing Agreement and/or Quality Agreement between the parties relating to the subject matter of this Order;
(2)any additional terms added to the face of the Order and initialed by both parties;
(3)the terms herein.
The Terms and Conditions for Suppliers represent a legally binding agreement between you, and OTM regarding your acceptance of an OTM Purchase Order. Any references to any other terms and conditions, includingbut not limited to attachment of Supplier's terms and conditions, over stamping on theacknowledgment, or any terms on an invoice to this Order, shall not alter the terms andconditions of this Order, nor shall they constitute a counteroffer or rejection of the Order, evenif expressly and conspicuously stated
This Order is the total understanding between the partiesas related to the subject matter herein. No change, modification or revision to this Order shallbe valid unless in writing and signed by an authorized representative of Buyer's PurchasingDepartment.
2.0 Delivery & Performance.Time is of the essence for Supplier’s obligations. No deviation from delivery or performance schedules in this Order shall be allowed without the written authorization of Buyer. Buyer reserves the right, at Buyer’s sole discretion, to cancel outstanding orders that are not shipped timely or will deviate from the original delivery schedulewithout any liability.
Supplier shall notify Buyer immediately if Supplier expects delivery of goods or performance of services will not occur on time, or not conform to any other requirement of the Order. If Supplier’s deliveries will fail to meet the schedule in the Order, Buyer may require Supplier to expedite shipments and Supplier will pay for the difference between the cost of any premium/expedited transportation rates being used and the shipping method specified in this Order. If Supplier’s performance of services fails to meet the schedule in the Order, Buyer may require Supplier to expedite performance and Supplier will pay for the difference between the cost of expedited performance and the original performance in this Order. Any request for expedited shipping or performance shall not act as a waiver of any other remedies available to Buyer pursuant to this Order or at law.
Overshipments, regardless of cause, are not accepted, and may be returned or retained, at Supplier’s sole expense. Undershipments that result in excess handling fees shall be reimbursed by Supplier. Early delivery or performance shall not result in earlier payment or loss of any early payment discount rates.
3.0 Packing and Shipment.All goods will be properly classified, described, packaged, marked and labeled by Supplier for shipment and in proper condition for transportation in accordance with the Order, specifications and applicable laws or regulations. All goods shall be delivered packed in suitable containers for shipping protection and storage. An itemized packing slip must accompany each delivery. At a minimum, Buyer’s Order number and part number shall be conspicuously marked on each packing slip and on each container. Some specifications may require additional information which shall be included. Deliveries must be routed according to Buyer’s instructions. When the freight terms are collect, Buyer will select the carrier. Buyer’s count will be accepted as conclusive on shipments without a packing slip.
Supplier assumes (i) all risks of loss or damages to all goods until the delivery to Buyer as provided in this Order, and (ii) all risks of loss or damages to any goods or parts rejected by Buyer or as to which Buyer has revoked its acceptance from the time of such rejection or revocation.
Inspection & Acceptance.Supplier shall inspect (i) all performed services; and (ii) goods prior to shipment; to ensure conformance with all requirements of this Order. Supplier shall be responsible for inspecting, testing and maintaining all materials, supplies, tools, manufacturing equipment and processes involved in the manufacturing process (collectively, “Manufacturing Items”), and such an inspection system must be satisfactory to Buyer. Buyer may, at any time, with reasonable notice, perform an inspection or audit of the goods, Manufacturing Items, services performed or deliverables, at Supplier’s manufacturing facility, shipping facility or place of performance. All goods, services and deliverables will be subject to (i) final inspection and acceptance by Buyer at destination; and (ii) inspection or rejection by any federal, state or municipal government or agency that Buyer may require or desire. Any Buyer inspection or audit will not relieve Supplier of its responsibility to inspect and audit. Buyer may accept or reject in whole or in part (i) any delivery containing defective or nonconforming goods or service deliverables; or (ii) performance of any nonconforming services.
Rejected Goods or Services.Buyer may, at Buyer’s option, either return defective/nonconforming goods to Supplier for: (i) replacement or correction; or ii) full reimbursement. In either event, Buyer shall be entitled to reimbursement for Buyer’s incurred expenses relating to the rejected goods including, but not limited to transportation, handling, and packaging. Rejected services, at Buyer’s option, shall be: (i) re-performed at Supplier’s expense, or (ii) fully reimbursed by Supplier. In either event, Buyer shall be entitled to reimbursement for all of Buyer’s incurred expenses relating to the rejected services. If Supplier fails to promptly replace or correct rejected goods or services to Buyer’s satisfaction, or re- perform services to Buyer’s satisfaction, within a commercially reasonable time, Buyer may purchase or otherwise replace or correct such goods or services, and Supplier shall be liable to Buyer for any excess costs incurred thereby. Supplier will reimburse Buyer for all losses and expenses (including good corrections, rework, service re-performance and Recalls (as defined below)) and indemnify and hold Buyer harmless from any third party claims arising out of the defect/nonconformity in the goods or services. Any inspection or acceptance of goods or services under this Order by Buyer shall not operate as a waiver of any rights or obligations under this Order or release Supplier from its warranties, obligations or liabilities under this Order. Payment by Buyer for any goods or services provided under this Order shall not be deemed an acceptance of such goods or services.
Counterfeit Avoidance (Electronic Component Procurement)OT Microsystems has a zero-tolerance policy for counterfeiting. Suppliers must provide only authentic, unused product. Supporting traceability documentation to an authorized source is required to be submitted to support this authenticity with each shipment and order. Where traceability is not complete, rigorous testing to AS6081 requirements is always required.
Fraudulent/counterfeit parts have no value. Any warranty provision contained in the Supplier’s Terms and Conditions will be declared null and void if it is later determined that fraudulent/counterfeit parts or suspect fraudulent/counterfeit parts were received.
In the event that a Suspect Counterfeit Electronic Part or a confirmed counterfeit Electronic Part is identified, OT Microsystems will quarantine the parts to prevent assembly into deliverable products. These parts shall immediately be collected and tagged for quarantine, evaluation, and disposition. After conclusion of appropriate analysis if the item is confirmed to be a counterfeit Electronic Part or remains a Suspect Counterfeit Electronic Part, then the supplier will be notified for response; relevant facts will be provided to GIDEP; and parts will be held in quarantine. Under no circumstance will such parts be returned to the supplier. OT Microsystems will require a full credit without offset for the amount paid (or cancellation of invoice). Depending on the nature of the facts, OT Microsystems may also contact the manufacturer and the Intellectual Property Section of the Department of Justice.
Recall.In the event that any good (or any finished good incorporating a good that is the subject of this Oder) is recalled, withdrawn or field corrected, Supplier shall fully cooperate with Buyer in connection with such recall, withdrawal or field correction (collectively, “Recall”). In the event that a Recall of the goods is necessitated by a defect, a failure to conform to the specifications, a violation of applicable laws, a breach of Supplier’s warranties or any other term or condition set forth in this Order or any other reason within the Supplier's control, Supplier shall bear all costs and expenses of such Recall, including without limitation, costs of notifying customers, customer refunds for the goods and/or the finished goods that contains Supplier’s defective goods, costs of returning goods, lost profits, and other expenses incurred to meet obligations to third parties incurred in connection with such Recall. Supplier shall abide by all decisions of Buyer to initiate a Recall of goods (or any finished good incorporating a good that is the subject of this Order). Supplier shall not voluntarily initiate any Recall of the goods without Buyer’s prior written consent.
4.0 Change Notices.Any changes made to an Order must be agreed to in writing and signed by an authorized representative of Buyer (“Change Notice”). Supplier shall immediately notify Buyer if the Change Notice will impact Supplier’s cost, time of delivery or time of performance. If so, the parties will equitably adjust costs and schedules, in writing. Ninety (90) days’ notice and Buyer’s written approval is required prior to any changes in the design, specifications, performance, manufacturing or materials for goods or services supplied by Supplier. Such changes include, but are not limited to relocation of manufacturing site; change in ownership of Supplier; new, additional, modified tooling or other equipment; modified manufacturing processes; material changes; or other design and/or specification modifications. End of Life (EOL) notification shall be submitted at a minimum of 180 days prior written notice.
Price.Supplier represents that the price or prices specified in this Order do not exceed Supplier's current selling prices for the same or substantially similar items whether to the government or to any other Buyer, taking into account the quantity under consideration.
No charges of any kind, including charges for boxing or cartage will be allowed unless specifically agreed to by Buyer in writing. Federal or local taxes and tariffs of any nature billed to Buyer shall be stated as a separate line item on Supplier’s invoices. Supplier shall not bill taxes subject to Buyer’s tax exemption certificates.
All claims for moneys due, or to become due, from Buyer shall be subject to deduction by Buyer for any setoff or counter claim, past, present or future, arising out of this, any other of Buyer's Orders with Supplier or any amount payable by Buyer to Supplier.
Invoices.Supplier's invoices and original bills of lading or express receipts shall be mailed no later than the day after each shipment is made and must be dated as of the date of mailing. Individual invoices shall be issued against each Order and need to reference a valid Supplier purchase order number. Buyer reserves the right to take advantage of cash discounts in cases where delayed receipt of invoices caused by Supplier's failure to comply with invoicing instructions causes delay in orderly processing.
Payment Terms.Unless otherwise specified by Buyer, payment terms shall be net 60 days after the later of: (i) Buyer’s receipt of the applicable invoice issued in accordance with the applicable Order; (ii) Buyer’s receipt of the goods; or (iii) complete performance of the services. Final payment shall not be made until the goods or services provided meet the requirements specified in this Order. Buyer may withhold payment of any invoiced amounts that it disputes in good faith and the parties shall work in good faith to resolve any such billing disputes.
Force Majeure.Neither party shall be liable for damages as a result of a delay in delivery due to any causes beyond its control and without its fault or negligence, including without limitations, acts of God, the public enemy, or the government, fires, floods, unusually severe weather, epidemics, quarantine restrictions, strikes or freight embargoes. If the failure to perform is caused by the default of a subcontractor, and if such default arises: (i) out of causes beyond the control of both Supplier and such subcontractor; and (ii) without the fault or negligence of either of them, then Supplier shall not be liable for the failure to perform, unless goods and services to be furnished by such subcontractor were obtainable from other sources in sufficient time to permit Supplier to meet the required schedule. Supplier will notify Buyer in writing of such causes within 10 days after Supplier first learns of it. If the condition causing the delay exists for more than 30 days, Buyer may cancel this Order without any liability.
Confidential Information.Supplier shall not disclose to anyone the existence of this Order, its contents, that there exists a contractual relationship between the parties, or the fact that Confidential Information (as defined below) has been made available to Supplier. Supplier agrees that certain information, including but not limited to devices, drawings, data, designs, gauges, Property (as defined below), reports, trade secrets and other customer, business, financial, or technical information, supplied by Buyer and relating to this Order is the proprietary property of Buyer (“Confidential Information”). Such Confidential Information shall be held in confidence by Supplier and protected against disclosure to third parties. In addition, Supplier agrees not to use, directly or indirectly, any such Confidential Information for any other purpose than performing the obligations of this Order. The Confidential Information may not be reproduced, used or disclosed to others without Buyer’s prior written consent, and then only if such a party has a need to know to complete the Order and is bound by nondisclosure obligations substantially similar to those herein. Supplier shall not be liable for the disclosure or use of Confidential Information, which is: (i) already in the public domain; (ii) placed in the public domain by a third party after the date of this Order; or (iii) rightfully in the possession of Supplier or disclosed to Supplier on a non-confidential basis by a third party that is lawfully in possession of such Confidential Information. Any information Supplier has or may disclose to Buyer in connection with the Order shall be deemed non-confidential and non-proprietary and Supplier agrees not to assert any claims against Buyer by reason of its use, duplication or disclosure.
At Buyer’s option, Supplier agrees to return or destroy all Confidential Information at the completion of this Order, at the termination of any contract regarding this Order, or upon written request of Buyer. At Buyer’s request, any Confidential Information destroyed pursuant to the preceding sentence shall be certified in writing by an authorized representative of Supplier.
Buyer’s Property.Title to and the right of immediate possession of all property furnished by Buyer to Supplier for use hereunder, including but not restricted to tooling, designs, patterns, drawings and materials (collectively, “Property”), shall be and remain the property of Buyer during all stages of production. Supplier shall only use Property in the production of goods under this Order. Property shall not be used in the production, manufacture or design: (i) of any other articles for Supplier; (ii) for any other Buyer; or (iii) for manufacture or production of larger quantities than those specified herein; except with the express written consent of Buyer. Supplier shall segregate Property in Supplier’s plant and, wherever possible, clearly mark the Property so it is easily identified as Buyer’s Property. Upon delivery to Supplier, Supplier shall be fully responsible for Property until it is returned to Buyer. While Property is in Supplier’s possession, Supplier shall (i) protect, preserve and maintain Property in accordance with sound industrial practices; (ii) keep an inventory of the Property; and (iii) upon Buyer’s request, furnish copies of the inventories. At the completion or termination of this Order, all Property, together with all excess materials, shall be returned to Buyer, or disposed of, at Buyer’s direction. In the event Property is damaged, made unfit for its intended use (except for reasonable wear and tear) or used for an unauthorized purpose, Supplier shall be liable to Buyer for the cost of replacement.
IP Protections.Supplier agrees to assign and hereby does assign to Buyer all right, title and interest including all patent, trademark, copyright, trade secret and other proprietary and intellectual property rights (collectively, “Intellectual Property Rights”) in and to all works of authorship, designs, models, drawings, photographs, design inventions, processes, and other inventions (collectively, “Works”) made or conceived by Supplier in the course of performing the services rendered herein or created pursuant to this Order. Supplier agrees to promptly disclose to Buyer all Works made or conceived by Supplier in the course of the performance of this Order and all such Works shall be deemed to be “works made for hire” exclusively for Buyer. Buyer shall have sole ownership of such Works and the sole right to obtain and to hold in its own name any Intellectual Property Rights to such Works. Supplier agrees to sign, execute, and acknowledge or cause to be signed, executed and acknowledged, without cost, any and all documents and to perform such acts as may be necessary, useful or convenient for the purpose of securing to Buyer or its nominees Intellectual Property Rights throughout the world upon all such Works, title to which Buyer shall have acquired in accordance with the provisions of this Order.
Supplier Warranty.Supplier warrants that all goods and services delivered under this Order will (i) be authentic and not counterfeit (ii) free from defects in material, design and workmanship (including damage due to unsatisfactory packaging by Supplier); (iii) be strictly in accordance with Buyer's specifications, performance specifications, drawings, and approved samples; (iv) be suitable for their intended purposes; (v) consist of only new materials; and (vi) not be adulterated or misbranded within the meaning of any state food and drug laws or the United States Food, Drug and Cosmetic Act. Buyer’s approval of formulas or designs furnished by Supplier shall not relieve Supplier of its obligations under this warranty.
Supplier further warrants that all services performed hereunder will be carried out in a diligent, workmanlike and professional manner in accordance with industry standards by fully qualified personnel. Supplier represents and warrants that it complies, and will at all times comply, with all applicable relevant laws and regulations, both domestic and international, including, but not limited to those pertaining specifically to the goods and services ordered hereunder. The warranties of Supplier shall not be deemed to be exclusive, and together with any service warranties and guarantees, if any, shall survive acceptance and payment, and shall run to Buyer, its successors, assigns, customers and the users of the goods or services. Supplier will promptly reimburse Buyer for any loss incurred by Buyer due to any defects in such goods or services and will hold Buyer harmless from any third party claims due to defects in such goods or services.
Infringement.Supplier shall defend, indemnify and hold Buyer and their respective employees, contractors, directors, officers, principals (partners, shareholders or holders of an ownership interest, as the case may be), service providers and agents (collectively, “Buyer Indemnified Parties”) harmless from and against all damages, liabilities, judgments, losses, costs and expenses (including attorneys’ fees and court costs) (collectively, “Losses”) resulting from any claim, suit, demand or cause of action (each a “Claim”) arising from or related to allegations of infringement or violation of any Intellectual Property Right or privacy or proprietary right of any kind whatsoever, arising out of this Order. In addition to the indemnity above, if any allegation of infringement becomes the subject of a Claim, or in either party’s opinion is likely to become the subject of such a Claim, then Supplier shall, at Buyer’s option, either (i) replace or modify the infringing item to make it non-infringing, while maintaining equivalent functionality and performance; (ii) procure for Buyer the right to continue using the infringing item; or (iii) refund to Buyer all amounts paid for or in connection with such infringing item and any affected services. Any costs associated with any of the above alternatives shall be borne by Supplier. The foregoing indemnity shall not apply where the alleged infringement results from Supplier’s compliance with specific written instructions from Buyer directing use by Supplier of a feature not customarily used by Supplier. Supplier waives any rights to be held harmless by Buyer against any claims for infringement.
INDEMNITY:Supplier shall indemnify and hold Buyer Indemnified Parties harmless from and against all Losses resulting from a Claim arising from or related to: (i) Supplier's breach of any term or condition in this Order; (ii) any alleged failure of any good or service to conform to the warranties in this Order; (iii) Supplier’s negligence, willful misconduct or fraud; (iv) the acts or omissions of Supplier in connection with the provision of the services or goods under this Order; (v) Supplier’s violation of any applicable law in connection with the manufacture, assembly, design, handling, labeling, packaging, storage or shipment of a good or service; or (vi) a Recall involving the goods or services arising out of or relating to a defect, a failure to conform to the specifications, a violation of applicable laws, a breach of Supplier’s warranties or any other term or condition of this Order or any other reason within the Supplier's control. In furtherance of the foregoing indemnity and not in limitation thereof, Supplier agrees that:
(a) Buyer shall be entitled to all incidental damages resulting from a breach by Supplier, including, but not limited to all expenses reasonably incurred in inspection, receipt, transportation, and care and custody of goods rightfully rejected, and any commercially reasonable charges, expenses, or commissions incurred in effecting cover for rejected goods or services, and any other reasonable expense incident to a delay or breach by Supplier.If the required insurance is written on a claims-made basis, then the policy(ies) shall be maintained for a period of 5 years following the termination or expiration of this Order. Supplier shall provide Buyer with a certificate of insurance evidencing such insurance. The endorsement on each policy shall: (i) name Becton Dickenson and Company and its subsidiaries as additional insured; (ii) provide that such insurance is primary (with respect to any insurance issued to Buyer or any self-insurance amount) and non-contributory; and (iii) waive subrogation against Buyer for any claim arising out of this Order. Such waiver of subrogation may be achieved by a “Waiver of Rights of Recovery” endorsement (National Council on Compensation Insurance (“NCCI”) form WC 00 03 13). Certificates of insurance shall be filed with Buyer and shall provide for 30 days prior written notice of cancellation or a material change in insurance coverage. The liability insurance limits shall in no way be construed as a limit on Buyer's right to recover damages of any kind. TERMINATION: In addition to its other rights hereunder, Buyer reserves the right to cancel this Order, in whole or in part for: (i) Supplier’s breach of any of the provisions of this Order; (ii) Supplier’s bankruptcy or insolvency; or (iii) the sole convenience of Buyer. Upon notice of termination to Supplier, Supplier and its subcontractors will stop work immediately and protect all of Buyer’s property or property in which Buyer has acquired an interest. In the event of a termination for default, any exercise of Buyers rights contained herein shall not constitute a limit or waiver of any rights or claims Buyer might otherwise have at law, including but not limited to damages, loss of anticipated profits and recovery of reasonable attorney’s fees. If the termination is for Buyer’s convenience, Buyer shall reimburse Supplier for all work completed up to the time of termination. For clarification, Buyer shall be able to terminate for bankruptcy in the event of (i) any suspension of payment or the institution of any proceedings by or against Supplier, voluntary or involuntary, in bankruptcy or insolvency, or under any provisions of any insolvency or reorganization statute; (ii) the appointment of a receiver or trustee or an assignee for the benefit of creditors; or (iii) a determination that Supplier has become unable to pay debts as they become due. If so terminated, Buyer may cancel this Order with no further liability.
RECORDS:Supplier agrees to maintain all records, books and any other documents evidencing goods supplied and services rendered pursuant to this Order for 4 years from this Order’s expiration date. Prior to the destruction of any such documents, Supplier shall provide 30 days prior written notice to Buyer for instructions on destruction or return of such documents to Buyer.
ASSIGNMENTS AND SUBCONTRACTING: No rights or obligations under this Order, including payment or assignment of moneys due, may be subcontracted, assigned or transferred, in whole or in part, without: (i) prior written approval by Buyer; and (ii) the assignee’s or subcontractor’s agreement to be bound by this Order. INVALIDITY, WAIVERS, REMEDIES: The invalidity in whole or in part of any condition of this Order shall not impact the validity of other conditions. The remedies herein shall be cumulative and additional to any other remedies in law or in equity. No waiver of any provision of this Order shall constitute a continuing waiver of such provision or a waiver of such provision in other instances.
CONSTRUCTION: Unless otherwise required by law, this Order shall be construed in accordance with the laws of the state of New Jersey without application of its conflict of laws provisions. The exclusive venue for any dispute shall be the federal or state courts of New Jersey. The parties agree that the United Nations Convention for the International Sale of Goods shall not apply.
ENTIRE AGREEMENT: This Order represents the entire agreement and understanding between the parties with respect to the subject matter herein. Any terms and conditions in addition to or in conflict with the terms and conditions of this Order, such as the order acknowledgment or other documentation of Supplier, including any on-line or click-through agreements are null and void.