THIS ORDER IS SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS:
1. PRICE - The articles shipped or work performed against this Order must not be invoiced at a higher price than shown without written consent. Except as otherwise provided in this Order, the price does not include all applicable federal, state and local taxes in effect on the date hereof.
2. PURCHASE ORDER NUMBER - Buyer’s Order Number, including any amendment designation of controlling blanket order number, must appear on all of Seller’s invoices, packing lists, bill of lading, packages, containers, or correspondence processed under this Order.
3. INVOICES - Invoices shall be submitted in duplicate and shall include the following information: purchase order number, product number, description of products, sizes, quantities, unit prices, and extended totals in addition to any other information specified elsewhere herein. Bills of Lading or express/ receipt shall accompany each invoice. Payment of invoice shall not constitute to acceptance of products and shall be subject to adjustment for errors, shortages, defects in the products or other failure of Seller to meet the requirements of the order. Buyer may anytime set off any amount owed by Buyer to Seller against any amount owed by Seller or any of its affiliated companies to Buyer.
4. PACKING AND SHIPPING - All items shall be prepared and packed for shipment in a manner that will prevent damage in transit. Buyer is not liable for extra charges for packing, cartage, or any other like activity unless stated in this Order. Packing list is to accompany each shipment of goods and if such shipment completes the order, the following notation must appear thereon: “This shipment completes this order”. No charge for insurance will be allowed unless specifically noted herein. Goods must be packaged to assure safe arrival at destination and described to conform with Carrier’s Classification rules so as to obtain lowest transportation cost. Dot not insure or declare value on shipments beyond F.O.B. point.
5. DELIVERY - Deliveries are to be made both in quantities, in conformance to product/work specifications, and at times specified herein. If Seller’s delivery shall fail to meet schedule or fail to conform to product/work specifications, Buyer, without limiting its other rights or remedies, may direct expedited routing and any excess costs incurred thereby shall be debited to Seller’s account. Buyer may, at Buyer’s sole discretion without regard to Paragraph 10 “Default-Cancellation” hereof, immediately cancel all or part of this Order in the event Seller fails to deliver goods in conformance to product/work specifications or as scheduled herein. Buyer shall not be liable for Seller'’ commitments or production arrangements in excess of the amount or in advance of the time, necessary to meet Buyer’s delivery schedule. Goods which are delivered in advance of schedule may, at Buyer’s option, either (I) be returned at Seller’s expense for proper delivery, (ii) have payment therefore withheld by Buyer until the date that the goods are actually scheduled for delivery, or (iii) place goods in storage for Seller’s account until delivery date specified herein.
6. ACCEPTANCE - This order expressly limits acceptance to the terms stated herein and any additional or different terms proposed by the seller are rejected. This order becomes a contract subject to the terms and conditions set forth and incorporated herein by reference, when accepted by acknowledgment by Seller or commencement of performance by Seller. No change in modification of or revision of this order shall be valid unless agreed to in writing by Buyer.
7. INSPECTION AND TESTS - All goods ordered hereunder will be subject to inspection and tests by Buyer to the extent practicable at all times and places, including the period of manufacture and in any event prior to acceptance. Such goods will be subject to final inspection and acceptance by Buyer after delivery to Buyer. It is expressly agreed that inspections and/ or payments prior to delivery will not constitute final acceptance. It the goods ordered herein do not meet the specifications or otherwise do not conform with the requirements of this Order. Buyer shall have the right to reject such goods. Goods which have been delivered and rejected may be returned to Seller for reimbursement, credit, replacement or corrections as Buyer may direct. If, after notice, Seller fails promptly to replace or correct such rejected items, same may be corrected (without thereby exercising wrongful ownership) and or replaced by Buyer with cost of correction or replacement at the expense of Seller. Any goods rejected by Buyer shall be at Seller’s risk and expense and handling expense incidental thereto, and the applicable transportation cost will be charged to Seller’s account. Upon the non-acceptance repudiation, or rejection of any goods, Buyer shall not be liable for any profit Seller would have made or for incidental damage.
8. PAYMENT - As full consideration for Seller's satisfactory provision of the goods or performance of the services, VLSIP Technologies, Inc. will pay Seller's invoice not later than sixty (60) days following VLSIP Technologies, Inc.'s receipt of said invoice, or as per contract payment terms. VLSIP Technologies, Inc.'s payment of any such invoice shall constitute full and complete satisfaction of any and all actual and potential fees for the billing period covered by the invoice. Partial payments will not be made, unless VLSIP Technologies, Inc. agrees otherwise in writing. All payment terms will be calculated based upon date of invoice receipt by VLSIP Technologies, Inc. and payment terms will be considered satisfied based upon date of postmark of payment, or if EFT payment, date of transmission.
9. CHANGES - Buyer may at any time, by a written order and without notice to the sureties, make changes within the general scope of this Order, in any one or more of the following: (I) Drawings, designs or specifications, where the supplies to be furnished are to be specially manufactured by Buyer in accordance therewith; (II) Method of shipment or packing; (III) Place of delivery; and (IV) the period of performance of work. Seller shall comply with items (I) through (IV).
If any change causes an increase or decrease in the cost of, or the time required for the performance of any part of the work under this Order, and equitable adjustment shall be made in the order price or delivery schedule, or both, and the Order shall be modified in writing accordingly. Any claim by Seller for adjustment under this clause must be asserted with ten (10) days from the date of receipt by Seller of the notification of change; provided, however, that Buyer, if it decides that the facts justify such action, may receive and act upon any such claim asserted at any timer prior to final payment under this Order. Where the cost of property made obsolete or excess as a result of changes is included in Seller’s claim for adjustment, Buyer shall have the right to prescribe the manner of disposition of such property. Failure to agree on any claim for equitable adjustment under this clause shall be a dispute and the Seller may thereupon pursue any remedy which it may have in any court of competent jurisdiction. Pending the resolution of any such dispute, the seller shall diligently pursue the performance of the Order as changed. Seller may not make any change whatsoever in the manufacturing process, materials, drawings, designs or specs without the prior written consent of Buyer.
10. DEFAULT-CANCELLATION –
a. Buyer may terminate work under this purchase order in whole, or from time to time in part, by giving written notice to Seller specifying the extent to which performance of work is terminated and the time at which such termination becomes effective.
b. Buyer may, without charge, change or cancel any portion of this purchase order if Buyer gives Seller notice at least thirty calendar days prior to the Delivery Date.
c. After receipt of such notice and except as otherwise directed by Buyer, Seller shall stop work under this purchase order to the extent specified in the notice of termination.
d. Within thirty (30) days after receipt of the notice of termination, the Seller shall submit to Buyer its written termination claim. Failure of Seller to timely submit its termination claim shall constitute an unconditional and absolute waiver by the Seller of any claim arising from the Buyer's notice of termination.
e. Seller shall reasonably assess costs of raw materials, work in process and sub- assemblies as may be included within its termination claim to determine whether or not such items may be used by Seller for the manufacture of associated products or diverted for any other purpose, and to correspondingly reduce its termination claim by the value of such items. When settlement has been made, title to any such items determined not usable by Seller and charged to Buyer in the termination claim shall vest in Buyer upon payment of the claim and shall forthwith be delivered to Buyer.
f. Seller's termination claim shall consist solely of the following: (1) Completed products accepted by Buyer and not theretofore paid for, the sum determined by multiplying the number of such products by the unit price as specified in this order, and (2) the total of (i) the cost of work in process not to exceed the average unit cost multiplied by the number of units in process, provided however, that such number of units in process shall not exceed that amount which has been previously placed on firm release by Buyer (such amounts shall not include any costs attributable to Seller's products paid or to be paid under F)(1)) and (ii) a sum as profit on (F)(2), (i) at a rate not to exceed the rate used in establishing the original purchase price, provided however, if it appears that Seller would have sustained a loss on the purchase order had it been completed, no profit shall be included or allowed, and an appropriate adjustment shall be made reducing the amount of settlement to reflect the indicated rate of loss. The total sum to be paid to the Seller under(F)(1) and (2) above shall not exceed the total order price reduced by the amount of payments otherwise made and as further reduced by the price of work not terminated under the order.
g. In no event shall Seller be entitled to incidental or consequential damages, anticipated or projected profits (except as provided in (F)(2), costs of prepaid claims, attorney's fees, costs of tooling or equipment or sales or agents commissions on the terminated quantity.
h. Buyer reserves the right to verify claims hereunder and the Seller shall make available to Buyer upon its request all relevant books, records, inventories and facilities for its inspection in the event Seller fails reasonably to afford Buyer its rights hereunder. Seller shall be deemed to have relinquished its claim asserted under the provisions of this clause.
11. WARRANTIES AND INDEMNITIES - Seller expressly warrants that all items delivered hereunder will be free from defects of good material and workmanship, and will conform to applicable specifications, drawings, samples, and performance specifications whether set forth in this order or in Seller’s sales literature. In the event of a conflict between the terms of this order and such sales literature, the terms of the order shall prevail. The foregoing warranties shall survive inspection and acceptance of any payment for the items delivered hereunder and shall run to Buyer. It’s successors, assigns and customers. Said warranties shall not be deemed to limit any obligations under any other provision of this order, at low or in equity. No warranties are waived by the buyer supplying plans, specifications, or data, or inspecting or accepting the goods. When Buyer furnishes specifications to the Seller, Seller shall immediately notify Buyer of any infringement claim and Buyer may defend or negotiate the disposition of any such claims. Seller agrees to indemnify and hold Buyer harmless from any and all claims, demands, damages, costs, expenses (including attorney’s fees) and all liability of buyer arising out of or in any way connected with the breach of this warranty or the negligence of the seller in the manufacture for design of the items set forth in this order. Seller also agrees to indemnify Buyer for any and all injury, death, damage, and loss to persons or property caused by items furnished or services performed by Seller pursuant to this order, whether performed on the premises of Seller or Buyer to cover the foregoing indemnities, and upon Buyer’s written request, shall furnish to buyer appropriate evidence of such insurance.
12. RISK OF LOSS - Seller shall bear all risk of loss of any merchandise covered by this Order until physically delivered at the carrier’s F.O.B. point and shall also bear all risk of loss on rejected merchandise.
13. INFORMATION DISCLOSED BY BUYER - Seller shall keep confidential all information, drawings, specifications or date of whatsoever nature and kind and return upon request, all documents furnished by Buyer and marked proprietary to Buyer, and shall not divulge or use such information, drawings, specifications or data for the benefit of any other party Except as required for the efficient performance of this Order. Seller shall not make copies or permit copies to be made without the prior written consent of Buyer. Seller shall thereafter make no further use, either directly or indirectly, of any such data or any information derived therefrom without obtaining Buyer’s written consent, provided , however, the foregoing information shall not apply to items produced for direct sale to the United States Government in the event that the United States Government has an unlimited license to use Buyer’s information, drawings, specifications or data for such purpose.
14. INFORMATION DISCLOSED BY SELLER - Unless otherwise agreed to in writing by Buyer, any information disclosed to Buyer by Seller connection with the purchase covered by this Order shall not be deemed to be confidential or proprietary information and shall be acquired without any restrictions (other than any claim or patent infringement) as part of the consideration of this Order.
15. DISCLOSURE OF INFORMATION - Seller shall not in any manner advertise or publish the fact that it has furnished, or contracted to furnish, Buyer the goods or services herein mentioned without prior written consent of Buyer. Seller shall not disclose any detail s in connection with this Order to any party except as may be agreed to in writing by Buyer.
16. MATERIAL, TOOLS AND EQUIPMENT PAID FOR OR FURNISHED BY BUYER - Any materials, tools, equipment or facilities furnished by Buyer on other than a charge basis in connection with this Order will be deemed bailed to the Seller for mutual benefit and title thereto shall a all times remain in Buyer. Seller agrees to pay for all such materials, tools, equipment or facilities spoiled or damage by it or not otherwise satisfactorily accounted for. Tools, facilities and equipment paid for or furnished by Buyer shall be covered by a Buyer consignment invoice, the term of which are incorporated herein by reference Seller shall keep all materials, tools, facilities and equipment in which Buyer has any interest insured against risk of loss or damage for their value at Seller’s expense during such times they remain in Seller’s possession. Such property and wherever practical each individual item thereof shall be plainly marked or otherwise adequately identified by Seller as property of Buyer and shall be safely stored separate and apart from Seller’s property. Seller shall not substitute any property for Buyer’s property and shall not use such property except in filing Buyer’s orders.
17. TOOLING - Unless otherwise specified in this Order, all tooling and/ or all other articles required for the performance hereof shall be furnished by Seller, shall be maintained in good condition and replaced when necessary at Seller’s expense. If Buyer agrees to pay Seller for “special tooling” and/or other such articles, either separately or as a stated par of the unit price of goods purchased herein, title to same shall pass to Buyer upon payment therefor.
18. PATENT INDEMNITY - By acceptance of this Order, Seller agrees to indemnify Buyer against all claims, judgments, decrees, costs and expenses and attorney’s fees incidental to any infringement or to any claimed infringement of any patent or patents arising out of the use or sale by Buyer, its successor assigns, and customers of articles or materials covered by this Order unless the articles and material are of Buyer’s design or formula, and Seller agrees that it will, upon request of Buyer and at Seller ‘s own expense, defend or assist in the defense of any action which may be brought against Buyer, its successors, assigns or customers for such infringement or claimed infringement Buyer agrees to notify Seller promptly upon receipt of notice of infringement or information of such a suite having been filed.
19. REMEDIES ON WAIVER - The remedies provided by Buyer herein shall be cumulative in addition to any other remedies provided by law or equity. Failure or delay on the part of Buyer to exercise any right, power or privilege hereunder shall not operate as a waiver thereof.
20. ASSIGNMENT - This Order or any interest therein, including any claims for monies due or to become due with respect thereof may only be assigned upon the written consent of Buyer. Any payment to any assignee of any claim under this Order, in consequence of such consent shall be subject to the set-off, recoupment or other reduction for any claim which Buyer may have against Seller.
21. NOTICE OF LABOR DISPUTES - Whenever Seller has knowledge that any actual or potential labor dispute is delaying, or threatens to delay, the timely performance of the Order, Seller shall immediately give written notice thereof, including all relevant information with respect thereof, to Buyer. Seller agrees to insert the substance of this clause, including this sentence in any subcontract hereunder.
22. COMPLIANCE WITH LAWS - Seller represents and warrants that the performance of this Order and the furnishing of goods and/or services called for shall be in accordance with the applicable standards, provisions and stipulations of all pertinent federal, state or local law, rules and regulations.
23. EQUAL EMPLOYMENT OPPORTUNITY - Seller agrees to submit the reports and information and comply with the government’s policy on equal employment.
24. TSCA - Notwithstanding anything to the contrary heretofore or hereafter represented by either party to the other, Seller warrants that each and every chemical substance sold or otherwise transferred by Seller to Buyer as of the time of such sale or transfer that is required or permitted to be reported for inventory of chemical substance, has been reported to the Environmental Protection Agency either by the Seller or by others or will be reported to the Environmental Protection Agency by Seller as a processor of the substance during the revised inventory reporting period, for incorporation in inventory of chemical substance compiled and published by the Administrator of the Environmental Protection agency pursuant to the Federal Toxic Substances Control Act (PL 94-469)
25. APPLICABLE LAW - The construction, interpretation and performance of this Order and all transaction under it shall be governed by the laws of the State of Texas
26. COMPLETE AGREEMENT - The conditions of purchase stated herein and all statements on the reverse side hereof, including all insertions thereon by Buyer, constitute the complete agreement between the Buyer and Seller concerning this purchase and any prior negotiations between the Buyer and Seller or terms or conditions of sale set forth in the Seller’s quotation or order or sale acknowledgment shall not constitute a part of the agreement between the Buyer and Seller concerning this purchase