The purchase order referencing these terms and conditions (the ”Order”) is an offer by LSI SOLUTIONS® (“Buyer”) to purchase the goods and/or services identified in the Order from the Vendor (“Seller”) named in the Order. Buyer’s offer to purchase such goods and/or services from Seller is expressly conditioned upon Seller’s acceptance of all of the terms and conditions set forth herein together with any additional terms set forth in the Order. Seller may accept Buyer’s offer to purchase such goods and/or services by delivering a written acceptance or acknowledgment of the Order to the Buyer or by commencing performance or shipment of any part of the Order. Seller agrees that a written acceptance or acknowledgment of the Order shall be deemed an acceptance of Buyer’s offer notwithstanding any different or additional terms set forth in such written acceptance or acknowledgment and agrees that any such different or additional terms are expressly rejected and are not a part of the Order. Buyer may, at any time prior to Seller’s acceptance, revoke its offer upon written notice to Seller. If at any time Seller asserts that any different or additional terms apply to the Order, then Buyer shall be under no obligation to purchase any goods or services from Seller and may return any goods previously purchased from Seller for a full refund. The Order and its terms may only be modified by a new purchase order or new terms issued by Buyer. Buyer and Seller agree that these terms and conditions, the Order, and any documents or other items attached to the Order or incorporated therein or herein by reference contain the complete and final agreement between Buyer and Seller.
Time is of the essence in the performance of the Order, and any delay in delivery is a material breach. All conforming goods shall be shipped on a first in, first out basis. Delivery is on time if delivery is five (5) days or less prior to the delivery date listed on the Order and zero (0) days after such delivery date. Unless otherwise specified in the Order, shipment of the goods is FOB [place of destination], Freight Collect (to a destination dock indicated by Buyer) and shall be shipped via a mode and carrier designated or approved by Buyer. Seller shall be solely responsible for the costs of any expedited shipping. Unless otherwise indicated in the Order, Seller shall retain the risk of loss until Buyer accepts the Products. If Buyer rightfully rejects the goods, receives a non-conforming tender, or revokes its acceptance, risk of loss and title shall be deemed to have remained with Seller. Buyer is entitled to inspect the goods (including the performance of tests) before or after receipt and reject some or all of the goods for failure to conform to the Order, regardless of whether any payment has been made by Buyer, whether the nonconformity substantially impairs the value of the goods, or whether the nonconformity may be cured by Seller. Buyer may return all non-conforming goods to Seller, at Seller’s expense, for repair, replacement, or a refund at the election of Buyer. Seller shall not tender any Products to Buyer that have previously been rejected without first informing Buyer of such prior rejection. No charges for unauthorized transportation will be allowed. If requested by Buyer, Seller will agree to declare value of shipment for protection purposes. Without limiting any of Buyer’s rights hereunder or under applicable law, Buyer shall have the right to terminate the Order without liability at any time if Seller has failed to deliver in accordance with the delivery schedule established in the Order. If Seller fails to deliver any goods or services on the delivery date set forth in the Order, Seller shall be liable to Buyer for any costs incurred by Buyer as a result of such failure including, without limitation, any amounts owed to Buyer’s customer, any expedited shipping costs incurred by Buyer to deliver the final product to Buyer’s customer, and any internal costs incurred by Buyer as a result of any line downtime.
Buyer shall have the right to change specifications and/or delivery dates for the goods and/or services or any other matters relating to performance of the Order at any time. Price will be equitably adjusted as required by such changes, but no price adjustments shall be made without Buyer’s prior written authorization. Seller shall not make any change to the goods or deviate from the services covered by the Order, without Buyer's prior written consent. Upon approval by Buyer of the initial design, any process changes, design changes or deviations considered by Seller must be submitted to Buyer in writing for review and approval. If changes are submitted for approval, the information submitted must include a complete description of the change and the effect the change will have on all characteristics of the goods and/or services. Upon request, Seller shall submit samples of the goods for evaluation and approval by Buyer.
Seller warrants that all goods supplied pursuant to the Order (i) will conform to all specifications, drawings, samples, or other descriptions furnished by or to Buyer; (ii) will conform to all representations, affirmations, promises, descriptions, samples or models forming the basis of the Order; (iii) will be of merchantable quality and fit for the purpose intended; (iv) will perform as specified in the Order and herein; (v) will be free from defects in material, design, and workmanship; and (vi) do not infringe upon any third party’s intellectual property rights that are provided by patents, copyrights, trademarks, and/or trade secrets. Seller further warrants that all services performed for or on behalf of Buyer will be performed in a competent, workmanlike manner and shall be free from faults and defects. Seller warrants that the prices for the goods and/or services sold to Buyer in the Order are not less favorable than those currently extended to any other customer for the same or similar goods and/or services in equal or lesser quantities. Seller warrants that Buyer shall receive good and clear title to the goods, free from any lien or other encumbrance. The warranties provided herein shall be in addition to any warranties given by Seller to Buyer. None of said warranties and no other implied or express warranties shall be deemed disclaimed or excluded unless evidenced by a purchase order change notice or revision issued and signed by Buyer’s authorized representative. Without limitation of any of its rights with respect to latent defects or fraud, or any of its other rights at law, Buyer may, within twelve months (a) from acceptance by Buyer in the case of goods not transmitted to its customer or (b) from the date of shipment from Buyer’s factory in the case of goods transmitted to its customers, return goods which are not as warranted to Seller, at Seller’s expense, for credit, repair or replacement as Buyer may direct.
Unless otherwise specified, prices provided in the Order are FOB [place of destination], Freight Collect) to the destination appearing in the Order. The price for goods or services shall be the price indicated on the face of the Order or as quoted on date of shipment, whichever is lower. The price will include all applicable export duties and excise, retailer’s occupation, and other taxes and charges payable by reason of transaction cover by the Order. Any change in price without Buyer's prior written consent and issuance of an amended PO is expressly rejected. No additional charges of any kind will be allowed except with Buyer's prior written consent. Where required, Seller shall obtain from Buyer any necessary sales tax exemption or direct pay documentation. No price will exceed any maximum price lawfully established by any governmental authority. The specific quantity ordered must be delivered in full and not be changed without Buyer's prior written consent. Any different quantity without such consent is subject to Buyer's rejection and return at Seller's expense and Buyer shall have no obligation for payment of any excess quantity. If Seller has received a deposit from Buyer, Buyer shall have, and Seller hereby grants, a security interest in the goods (including all work in process, accessories, and attachments comprising the goods). As security for any obligation of Seller to return the deposit to Buyer, Buyer shall have all of the rights and remedies of a secured party under the Uniform Commercial Code (the “UCC”). Seller authorizes Buyer and its agents to prepare and file UCC financing statements and continuation statements (including amendments thereto) to perfect its security interest in the goods (including all work in process, accessories, and attachments comprising the goods). Buyer’s security interest in the goods shall terminate upon transfer of title to the goods to Buyer or return of the deposit to Buyer.
Invoices should be rendered for payment for each shipment within 24 hours after shipment. Payment terms on the face of the Order are measured from the invoice date. Unless otherwise agreed, payment of an undisputed invoice shall be made via check or electronic funds transfer net 30 days from the date of receipt of an acceptable invoice. If Buyer disputes all or a portion of an invoice, Buyer may withhold such disputed amounts, and will promptly notify Seller of the amount and reason for the dispute. All invoices must include the purchase order number and a detailed description of the goods and/or services provided, as well as any other information specified on the Order or herein. Buyer reserves the right not to pay any invoice issued more than 180 calendar days from the date originally required hereunder.
All items shall be suitably packed in containers for protection in accordance with the requirements of common carriers and in a manner to secure lowest transportation costs. Seller shall ensure that packaging and shipping containers are of adequate design and construction to protect goods from damage, deterioration, or alteration during handling, storage, and distribution. No additional charges shall be made to Buyer unless otherwise stated on the Order. No charge shall be made for drayage or storage unless agreed upon in writing by Buyer. Unless otherwise specified in the Order, Seller shall properly mark each package with Buyer's purchase order numbers and where multiple packages comprise a single shipment, each package shall also be consecutively numbered. Packing Slips must accompany each shipment. All packing slips and bills of lading must show Buyer’s purchase order number, package numbers, part number, quantity of parts (in units of measure ordered), and part description (i.e., material part number, lot number, etc.). Failure to include this information may result in goods being rejected and returned to Seller at Seller’s cost. Expiration dates and any required storage conditions shall be clearly indicated on the labelling, packaging, and shipping documents. Seller shall create and store labels and perform labelling operations in a way that prevents an incorrect label from being used. Seller shall have systems in place to control shipment of goods so that only goods approved for release are shipped. Seller shall ensure that no obsolete, rejected, expired, or deteriorated goods are shipped.
If the Order includes the purchase of any materials that are toxic or hazardous to human health (or that include any toxic or hazardous substances, as defined by or in the Registry of Toxic Effects of Chemical Substances), Seller must provide Buyer with Safety Data Sheets that identify the material and include full information concerning health hazards and toxic effect of the material and precautions to be taken in the use of the material. Goods and services supplied to Buyer shall meet all applicable requirements of country, federal, state, and local environmental regulations.
Seller agrees to defend, indemnify and hold harmless Buyer and its directors, employees, agents, customers, end users, successors and assigns from and against all claims, demands, liabilities, suits, actions, damages, costs, losses, and expenses (including attorney fees and legal costs) arising from (i) any personal injury, death, property loss, or damage caused in whole or part by Seller’s negligence, acts, or omissions in performing or failing to perform under the Order; (ii) any negligent, fraudulent, or willful conduct by Seller or its personnel; (iii) Seller’s breach of any warranty or covenant contained in the Order or herein; (iv) Seller’s breach of the Order, failure to perform all or part of the Order, or default under the Order; (v) any claim that the goods or services or Buyer’s use thereof infringes upon the intellectual property rights of any third party; and/or (vi) any compensation owed to any employee of Seller or any personnel for services performed under the Order and for any tax, levy or other amount imposed with respect to such compensation and for any claims, damages, or liability for injury or death to Seller's personnel incurred in the performance of their duties.
All drawings, sketches, specifications, samples, models, tooling, technical information, methods, processes, techniques, shop practices, formulas, compounds, compositions, research data, marketing and sales information, customer lists, plans, know-how, trade secrets, or data, written, oral or otherwise (“Confidential Information”) provided by Buyer to Seller in connection with the Order shall at all times remain the property of Buyer and shall be returned upon completion of the Order or upon written request by Buyer. All such Confidential Information shall be kept confidential by Seller and Seller shall use any such Confidential Information for purposes of performing its obligations under the Order only and may not disclose any such Confidential Information to any third party. The above obligations of use and confidentiality shall remain in effect for five (5) years from the date of the Order. However, the above obligations related to Confidential Information that is a trade secret of Buyer shall remain in effect until such Confidential Information is no longer a trade secret. To the extent that these terms and conditions conflict with any terms, conditions, or provisions of a separate agreement regarding Confidential Information that is signed by Buyer and Seller, the terms and provisions of the separate Agreement regarding Confidential Information shall control.
All ideas, inventions, documents, works in progress, computer or other electronic data files, drawings, tooling, source code, and other items specifically prepared by Seller in connection with the Order ("Deliverables"), and all items furnished by or on behalf of Buyer, shall be the property of Buyer and no reproductions or property interest shall be retained by Seller. To the extent allowed by law, copyrightable subject matter created by Seller shall be deemed "work made for hire." Seller agrees to assign and hereby assigns its rights in all Deliverables to Buyer and Seller shall execute and cause its personnel to execute any such documentation as may be reasonably necessary to evidence such assignment. Seller shall not use or display Buyer's name, logo or symbol, or other registrations, trademarks, or service marks without the prior written permission of Buyer.
Seller warrants that all goods called for in the Order have been produced in compliance with all applicable federal and state laws and regulations including, without limitation, those pertaining to hiring practices, working conditions and payment of labor, and the manufacture, branding, labeling, registration, and shipment of goods. All purchased materials used to manufacture parts shall satisfy current governmental and safety constraints applicable to the country of manufacture and sale.
Any machinery or equipment delivered hereunder shall include such safety-related design features as are necessary for Buyer’s compliance with governmental and industrial standards for workplace safety when such machinery or equipment is used for its intended purposes by Buyer or its customers or other end users.
The remedies provided for herein shall be cumulative and in addition to any other or further remedies provided by law or in equity.
The Order shall be construed in accordance with the laws of the State of New York, without regard to its conflicts of laws principles. The United Nations Convention on Contracts for the International Sale of Goods, as amended to date, will not apply. Any action or claim relating to or arising under the Order shall be brought in the appropriate court in Rochester, New York, and each party hereby irrevocably consents to the personal jurisdiction and venue in such courts.
Seller shall not assign, delegate or subcontract any or all of its rights, responsibilities or obligations under this Order without Buyer’s prior written approval. Any such assignment, delegation or subcontracting by Seller of its rights, responsibilities or obligations hereunder, without Buyer’s prior written consent, shall be void. In the event Seller changes its name, Seller shall inform Buyer of such name change within ten (10) business days.
Buyer may terminate this Order at any time without cause upon five (5) days written notice to Seller. Either party may terminate the Order immediately if the other party materially breaches the Order (which is not cured within 30 days) or upon receipt of written notice of the other party's intent to terminate. In the event of termination, Buyer's liability shall be limited to the price of, and Seller shall deliver to Buyer, goods and/or services scheduled for delivery and/or performance during the period ending on the date notice of termination is received.
Except as to any supplies or components that any specifications contained in the Order specifically provide need not be new, Seller represents that all supplies and components to be provided under the Order are new, not used or reconditioned, and not of such age or so deteriorated as to impair their use, usefulness, efficiency, or safety.
In the event Seller determines that it shall no longer produce and supply a good covered by the Order, sufficient notice shall be given by Seller to Buyer, providing a minimum of twelve (12) months lead time prior to the discontinuation of such good. In such case, Buyer may desire to purchase additional inventory quantities to sustain its manufacturing requirements and Seller will use commercially reasonable efforts to fill such orders. Nothing herein will affect Seller’s obligation to fill the Order.
Notwithstanding anything to the contrary herein or in the Order, Buyer shall not be obligated to take delivery of any goods and shall not be responsible for any resulting damages if Buyer is prevented from taking delivery as a result of an event beyond Buyer’s reasonable control, including without limitation, the cancellation of any order by Buyer’s customer.
Seller shall promptly notify Buyer in writing in the event goods or services provided become subject to a recall initiated by the Seller or by any government, notified body, commission, board, regulatory agency, court, or other instrumentality having any jurisdiction over aspects of the design, manufacturing, and distribution of the goods. Seller shall cooperate with Buyer’s requests for information related to the recall. Buyer has the sole authority for decisions related to any of its products in the field, including any field corrective action. Seller shall be responsible for the costs of any such recall except to the extent such recall arises from the acts or omissions of Buyer.
Seller shall have a process and procedures in place for the control of non- conforming goods or services at all stages of Seller’s operations, which includes identification, documentation, evaluation, segregation, and disposition of the non-conforming goods or services. Seller shall have procedures that govern rework of non-conforming goods. In the event Seller discovers a non-conformance that affects goods already shipped or services performed, Seller shall promptly notify Buyer. Seller shall fully cooperate with all investigation and containment actions. Seller shall reimburse all costs and expenses incurred by Buyer in connection with use of non-conforming goods. Buyer shall have the right to inspect Seller’s facilities, or any other location where the Products are manufactured, to review Seller’s production of the Products and performance of this Agreement. Seller shall fully cooperate with Buyer with respect to any such inspection. Should Buyer find any deficiencies in such facilities or in the production of the Products during any inspection, Seller will promptly take all commercially reasonable steps as are necessary to rectify each such material deficiency. If any noted material deficiency is not corrected within 30 days, Buyer will have the right to terminate this Agreement. If Seller has entered into a Supplier Quality Agreement with Buyer, the terms of such Supplier Quality Agreement are hereby incorporated by reference.
Seller shall provide assistance and information requested by Buyer in relation to the investigation of complaints Buyer receives from its customers, and to fulfil its regulatory reporting obligations.
Upon request, Seller shall provide information necessary for Buyer to obtain regulatory approval for the marketing, sale, and distribution of Buyer’s products into which the Seller's goods or services are incorporated. Such information may include specific details relating to raw materials, composition, ingredients, etc.
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