Unless the purchase order (“PO”) into which these Terms and Conditions are incorporated is issued under a written purchasing agreement between Supplier and VEXOS, Inc. or any of its affiliates (as applicable, “Buyer”), the PO, together with these Terms and Conditions, and any specifications referenced in the PO and any attachments thereto (together, the “Agreement”) are the entire agreement between Buyer and Supplier with respect to the products or services specified in the PO (the “Products” and the “Services”). Supplier’s acknowledgement of the PO or commencement of performance hereunder shall constitute Supplier’s acceptance of all the terms and conditions herein, whether written, typed, stamped or printed hereof, as fully as if signed by the Supplier, any local custom or privilege to the contrary notwithstanding. No other document, including the Supplier’s proposal, quotation, or acknowledgment form, will be part of the PO, unless specifically agreed to in writing by Buyer, and all additional or different terms are rejected. No right that Buyer has regarding the PO may be waived or modified except by Buyer in writing and the waiver of any right on in any instance shall not be a waiver of such right for other instances.
- Shipment and Delivery. Time is of the essence of the PO. Supplier shall use diligent efforts to deliver the Products and/or Services ordered by Buyer no later than the delivery date specified in the PO. Unless otherwise expressly provided herein, all Products delivered to Buyer shall be Incoterms DDP Buyer’s location at the address set forth in the PO. Title and risk of loss to the Products delivered hereunder shall pass to Buyer at the designated delivery point. All customs, duties, costs, taxes, insurance premiums and other expenses relating to such transportation and delivery to the delivery point shall be at Supplier’s sole cost and expense. Buyer may reschedule deliveries in advance of agreed delivery dates provided thirty (30) days advance written notice is given to Supplier and provided the rescheduled date(s) are within one hundred and twenty (120) days of the previously agreed delivery date(s). Shipments in quantities greater than ordered shall not be accepted except as authorized in writing by Buyer and may be returned at Supplier’s expense.
- Price and Payment. If price is not stated in the PO or a purchasing agreement, the price will be the lower of Supplier’s prior price to Buyer or any of its Affiliates or Supplier’s lowest prevailing market price. Unless the PO states otherwise, the terms of payment are net sixty (60) days from date of Supplier’s valid invoice. Invoices shall not be dated earlier that the date of final shipment of the Products to Buyer. Payment of invoices will not be deemed acceptance of Products or Services. Supplier’s invoices shall show Buyer’s Order number and Supplier’s item code if applicable. All shipments must be accompanied by packing lists showing Buyer’s Order number, description of material and quantity. Containers owned by Supplier to be returned must bear Supplier’s name. Goods received by Buyer not covered by any invoices may be held at Supplier’s risk and expense or returned to Supplier at Supplier’s expense.
- Cancellation; Suspension. (a) This PO may be terminated by Buyer with or without cause. In the event Buyer terminates without cause, Buyer will compensate Supplier for the actual and reasonable expenses incurred by Supplier for work in process up to and including the date of termination, provided such expenses do not exceed the agreed upon prices and subject to presentation of cost documentation reasonably acceptable to Buyer. (b) Buyer reserves the right to suspend work or shipments of all or any part of the Products or Services without cause or default on the part of Supplier. In the event of such termination by Buyer or suspension, Supplier shall immediately stop all work under the PO, cause any of its sub-suppliers to cease such work, minimize charges related to the Products and Services, including diverting materials to other uses, comply with any instructions from Buyer as to work in progress and take such actions as may be necessary to protect Buyer's property in the possession or control of Supplier or its sub-suppliers. If such termination and/or suspension hereunder causes additional cost to Supplier, not due to Supplier’s fault or neglect, a mutually agreeable adjustment may be made provided that a written claim (with adequate supporting documentation) by Supplier is asserted within thirty (30) days from the date of termination or, in the case of a suspension, from the date of a start order for resumption of work. In no event shall Buyer's obligation hereunder exceed that which Buyer would have had to Supplier in the absence of a suspension. Buyer shall not be obligated to purchase any Supplier raw materials or to pay any Supplier termination charges. Buyer shall not be liable for any work done after notice of termination or suspension is given or for costs that reasonably could have been avoided by Supplier or its sub-suppliers.
- Inspection and Acceptance. Buyer shall be entitled to inspect, at any time upon prior notice to Supplier, Supplier’s manufacture of the Products, including the facilities and equipment used to manufacture the Products. No inspection or test made prior to final acceptance shall relieve Supplier from responsibility for defects or other failure to meet the requirements of the PO. Supplier shall carefully inspect all Products prior to shipment to Buyer. Buyer may reject any portion or all of any shipment of Products that does not conform to the applicable specifications or descriptions of the Products within sixty (60) days of receipt of such Products and may at its option, return such rejected Products to Supplier for replacement, refund or credit.
- Quality. (a) Supplier agrees to manufacture the Products in accordance with the IPC-A-610-Rev.D Class 2 standard and to comply with the applicable quality procedures, testing and inspection standards. Mechanical, plastic and interface Products shall be fully compliant with the Buyer’s specifications or drawings as required in the PO. In the event Buyer does not provide any Specifications, the term “specifications” shall be deemed to mean Supplier’s samples approved by Buyer in writing prior to placement of the PO and the IPC 600C Class 2 standards for PCB’s or, as applicable, similar industry standards for other Products. Supplier will use its best efforts to implement a “PPM” manufacturing program. It is the intent of both parties to commit to continuous process improvement. Supplier shall provide test data collection and quality control records and reports to Buyer. Buyer may request that formal corrective and preventive actions be taken by Supplier to correct discrepancies and/or trends. (b) Products supplied by Supplier hereunder shall be identified by means of symbols or labels compliant with the guidelines of IPC 1066. Where the physical Product cannot be marked, the packaging and packing slip shall record equivalent information. Products supplied by Supplier hereunder shall be accompanied with a Declaration compliant with the guidelines of IPC 1752.
- Changes. (a) Buyer shall have the right at any time to make changes of any kind (including quantity and Buyer's specifications) to this Contract. If Supplier believes that such change affects the price or delivery date for such Products, Supplier shall so notify Buyer in writing (with adequate supporting documentation) within five (5) working days after receipt of Buyer's change notice and an equitable adjustment may be considered by Buyer. Supplier's request for any adjustments shall be waived unless submitted within such five (5) day period. If directed in writing by Buyer, Supplier shall comply with and perform such change during the time Supplier and Buyer require to mutually agree upon an equitable adjustment, if any. (b) Supplier shall notify Buyer in writing in advance of any and all changes to the Product or its specifications or composition, and of all process changes, plant moves, equipment changes or moves, or sub-supplier changes, and no such change shall occur until Buyer has been given prior notice of such change and has conducted such audits, surveys and testing as necessary to determine the impact of such change on the Product. No such change shall occur without Buyer's written consent. All such changes shall be documented by Supplier by following change procedures issued by Buyer from time to time. It shall be the responsibility of Supplier to obtain, complete and submit proper documentation regarding any and all changes. Any such change made without the explicit consent of Buyer shall constitute a material breach, and Buyer shall have the right to terminate this Contract immediately and without prior notice to Supplier.
- Warranties. (a) Supplier warrants to Buyer that for one (1) year following the date of Buyer’s acceptance of the Products and/or Services that (i) the Products shall be free from defects, whether latent or patent, in design, materials, workmanship and manufacture; (ii) the Products and/or Services will conform to the documentation therefore and to the applicable specifications, drawings, samples or to other descriptions set forth in the PO; (iii) the Services will be performed in a professional and workmanlike manner; (iv) Supplier has good, unencumbered title to the Products and has conveyed such good, unencumbered title to Buyer; (v) all Products are new and unused; (vi) the Products and Services do not violate the intellectual property rights of any person; (vii) the Products and Services, and Supplier’s conduct in connection therewith, conform to all applicable laws, rules and regulations. (b) If any of the Products or Services delivered by Supplier do not meet the warranties or conditions specified herein, Buyer may, at its option, require Supplier to correct any defective or non-conforming Products or Services, as applicable, by repair or replacement, at no charge to Buyer. At its discretion, Buyer may choose to charge Supplier reasonable costs associated with identifying, testing, sorting, reworking and any other activities associated with dealing with the non-conformance. (c) The foregoing remedies are in addition to all other remedies at law or in equity or under this Agreement, for damages or otherwise, and shall not be deemed to be exclusive. (d) Supplier warrants all Products and their manufacturing process meet to the extent applicable the latest requirements of the European environmental directives 2011/65/EU on the restriction of the use of certain hazardous substances in electric and electronic equipment (RoHS 2 Directive 2011/65/EU as amended by EU Directive 2015/863, “RoHS 3”) and 2002/96/EC on waste electrical and electronic equipment (WEEE) and 94/62/EC on Packaging and Packaging Waste regulation (EC) 1907/2006 on the registration, evaluation, authorization and restriction of chemical substances (REACH). (d) Upon request, Supplier shall certify its compliance by signing a Supplier Declaration of Conformity in form and substance acceptable to Buyer. (e) If any of the Products contain a substance meeting the criteria in Article 57 and identified in accordance with Article 59(1) in a concentration above 0.1 % weight by weight (w/w) as defined in the regulation (EC) 1907/2006 (REACH), upon request Supplier shall provide Buyer sufficient information as to allow safe use of the article by the ultimate consumer including, as a minimum, the name of any substance. The relevant information shall be provided to Buyer free of charge, within thirty (30) days of receipt of the request. (e) Supplier warrants all documents and statements provided by Supplier under this Agreement, including, but not limited to, the Supplier Declaration of Conformity and Certificate of Insurance, are true and correct and may be relied upon by Buyer and its customers.
- Tooling. Tools or equipment which Supplier constructs or acquires specifically and solely for use for a PO are deemed to be Buyer’s property. Supplier shall retain custody of such tools and equipment unless and until Buyer directs Supplier to deliver such tools or equipment to Buyer at Buyer’s sole expense. Supplier shall maintain and repair such items at its own expense, pay the replacement costs should any item become lost or unusable, and without Buyer’s prior written consent shall not use or allow any such item to be used for any purpose other than the manufacture of goods for Buyer.
- Patents and Copyrights. Supplier shall defend, indemnify and hold harmless Buyer and its affiliates and its and their officers, director, agents, employees and successors from any and all claim, liabilities, losses, damages, settlements, costs and expenses (including reasonable attorneys’ fees) made against Buyer that Supplier’s Product or Service infringes any patent, copyright, trademark, trade secret and any other intellectual property or proprietary right of any third party. If a claim of infringement is made, Supplier will, at its own expense, exercise the first of the following remedies that is practicable: (a) obtain for Buyer the rights granted under this Agreement; (b) modify the Products or Services so they are non-infringing and in compliance with this Agreement; (c) replace the Products or Services with non-infringing ones that comply with this Agreement; or (d) accept the return of infringing Products and the cancellation of infringing Services and refund any amount paid. Nothing in this Agreement shall be deemed to transfer any of Buyer’s intellectual property rights to Supplier except to the extent required to deliver the Products and Services, for which purpose Buyer grants to Seller a non-exclusive, limited and non-transferable license.
- Limitation of Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BUYER BY LIABLE FOR ANY LOST REVENUES, LOST PROFITS, INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY BREACH THEREOF, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN AN ACTION FOR CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT BUYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Confidentiality. All information Buyer provides in connection with the PO, such as but not limited to, design, specification, technical and/or commercial data, is confidential and proprietary to Buyer and shall remain Buyer’s sole property. Supplier agrees not to reproduce any of Buyer’s proprietary data without Buyer’s written permission. If the Buyer and Supplier (or their affiliates) are party to a separate confidentiality agreement, the terms and conditions thereof shall be deemed applicable to this Agreement for the duration hereof and for a period of three (3) years following delivery of the Products or Services or termination of the PO, if earlier.
- Default and Remedies. Should Supplier breach this Agreement, in whole or in part, Buyer shall have the right immediately to terminate the PO, in whole or in part, without further obligation or liability and shall have all remedies available to it at law or in equity.
- Indemnification. Supplier shall defend, indemnify and hold harmless Buyer and its affiliates and its and their officers, director, agents, employees and successors from any and all claim, liabilities, losses, damages, settlements, costs and expenses (including reasonable attorneys’ fees) arising in connection with (a) Supplier’s breach of this Agreement, except to the extent caused by the gross negligence of such indemnitee; (b) any failure of any Product (and materials contained therein) sold by Supplier hereunder to comply with any safety standards and/or environmental regulations; (c) any actual or threatened injury or damage to any person, property or the environment caused, or alleged to be caused, by a Product; (c) any infringement of the intellectual property rights of any third person in connection with any Product or Service; or (d) any unlawful export of the specifications by or through Supplier or a breach of the representations or warranties of Supplier herein. Supplier’s obligations under this Section shall survive termination of the PO.
- Insurance. Supplier will maintain, and provide evidence of, General Liability, Property Damage, and Employer's Liability and Comprehensive Insurance as Buyer from time to time determines to be adequate. Supplier shall maintain at its own expense product liability insurance in the amount of at least U.S. $1,000,000 for injury or death of one person in any accident, and an additional U.S. $2,000,000 for injury or death of more than one person in any accident, and property damage coverage of at least U.S. $1,000,000 thereunder, naming Buyer as an additional insured and providing that the coverage shall be primary. Satisfactory evidence by copy of a certificate of insurance shall be submitted annually to Buyer. The policy obtained must be occurrence based and shall cover the actions of any subcontractor that Supplier may utilize under this Agreement. Such insurance shall require the underwriters to provide Buyer thirty (30) days advance written notice of any cancellation or adverse material change with respect to any of the policies. It is understood and agreed that the insurance provided by Supplier hereunder shall operate independent and apart from any obligations imposed on Supplier under the indemnity provisions in this Agreement.
- Conflict Materials. Supplier represents and warrants that none of the Products delivered pursuant to the PO contain any so called conflict minerals, including without limitation, tantalum, tin, tungsten and gold, which are used in many electronic components and Products, sourced from mines in the Democratic Republic of the Congo (DRC) or adjoining countries. Upon request, Supplier will provide such certifications and other documentation as Buyer may reasonably request.
- Counterfeit Parts Avoidance. Suppliers of Electrical, Electronic, and Electromechanical (EEE) components to Vexos shall, at a minimum, have a defined counterfeit parts prevention plan in accordance with industry recognized standards.
The seller and its sub-tier suppliers, shall ensure that only new non-counterfeit parts and products are delivered to VEXOS. The seller further warrants that acquisition documentation authenticating traceability of the parts to the OEM/OCM shall be retained and made available to VEXOS upon request.
- FCPA/Bribery Act. In performing its obligations in connection with the PO, Supplier shall, and shall cause its agents and representatives, to comply with the Foreign Corrupt Practices Act, the UK Bribery Act and similar laws, rules and regulations. Supplier represents and warrants that it has not engaged in any sharing or exchange of prices, costs or other competitive information or undertaken any other collusive conduct with any third party supplier or bidder in connection with the preparation of any bid or proposal to Buyer or negotiation of the PO.
- Records and Audits. Buyer may at any reasonable time and upon reasonable notice to verify any data Supplier has prepared or submitted under a PO, including financial information of Supplier, its sub-suppliers and its affiliates. Supplier shall supply financial information reasonably requested by Buyer.
- Security. Supplier shall be responsible for factory and container/packaging security until such time as the Product is delivered to the applicable carrier. Supplier represents and warrants that it and its subcontractors who either ship directly or package Product for shipment to or for the benefit of Buyer will either (i) be certified under the Local Security Program, or (ii) demonstrate to Buyer’s satisfaction that it meets the security requirements of the Local Security Program. Upon request Supplier shall either provide Buyer with documentation that it and such subcontractors are certified or provide documentation and evidence satisfactory to Buyer to demonstrate compliance with the Local Security Program requirements. “Local Security Program” means, with respect to a Buyer located in the U.S., the C-TPAT program of the U.S. Bureau of Customs and Border Protection; with respect to a Buyer located in Canada, the Canadian Partners in Protection program of the Canada Border Services Agency; and with respect to a Buyer located in Europe, the EU Authorized Economic Operator program.
- General. (a) This PO is governed by the laws of the jurisdiction in which Buyer is located, excluding the conflict of laws provisions. Any disputes arising in connection with this PO shall be settled in courts located in Buyer’s jurisdiction, which courts shall have exclusive jurisdiction. The UN Convention on Contracts for the International Sale of Goods shall not apply. The parties expressly waive any right to a jury trial regarding disputes related to this Agreement. (b) Supplier shall provide (i) all information necessary for Buyer to comply with all applicable laws, regulations and any related legal reporting obligations in the country(ies) of destination; (ii) all documentation and/or electronic transaction records to allow Buyer to meet customs related obligations, any local content/origin requirements, and to obtain all tariff and trade program duty avoidance(s) and/or refund benefits, where applicable; and (iii) an accurate and valid Certificate(s) of Origin. Supplier shall immediately communicate in writing all additions or deletions to such Certificate(s) of Origin. Supplier shall comply with destination country customs obligations, including cooperation with customs audit or investigation procedures and shall maintain documentation supporting the Certificate(s) of Origin. Supplier takes sole responsibility and liability for the accuracy of such Certificate(s). These programs require Buyer to record and review all domestic and foreign suppliers’ adherence to these programs or equivalent security initiatives. Supplier agrees to provide Buyer with confirmation of enrollment in the aforementioned programs, commitment to adhere to these programs, or equivalent security guidelines satisfactory to Buyer. (c) If Supplier is a U.S. company, Supplier agrees to comply with all Federal State and local laws respecting discrimination in employment and non-segregation of facilities and Executive Order 11246, and implementing regulations of the U.S. Department of Labor, which embody governmental policy on equal employment opportunity. (d) No right or obligation under this Agreement may be assigned or subcontracted, in part or in whole, by Supplier without the prior written consent of Buyer, and any assignment or subcontracting in violation hereof shall be deemed void. (e) A change in control of Supplier shall be deemed an assignment for the purposes of this Agreement. (f) Supplier’s representations and warranties shall survive Buyer's inspection, acceptance, sale and use of the Products and Services and shall be in addition to, and shall not be construed as restricting or limiting, any warranties or remedies of Buyer, express or implied, which are provided by contract or law. (g) The order of precedence for resolution of conflicts is: (i) the PO; (ii) Buyer’s specifications; (iii) these Terms and Conditions; and (iv) Buyer’s quality standards and instructions.