Facet Technologies,
LLC
Terms and Conditions
of Purchase
These Terms and Conditions apply to purchase orders (“Orders”) between Facet Technologies, LLC, under the control of a common parent (Buyer”) and the supplier whose name appears on the face of this Order (Seller). By acceptance of this Order and/or performance hereunder, Seller agrees to comply fully with the Terms and Conditions set forth herein.
Acceptance of this Order
is expressly limited to the Terms and Conditions of this Order, and
none of the Seller’s Terms and Conditions used in acknowledging this
Order, in the acceptance of the Order or otherwise used by Seller shall
be of any force or effect unless specifically agreed to in writing by
Buyer. Acceptance by Buyer of goods, services or work including
but not limited to technical assistance, software or other forms of
deliverable technology data (“Products”) delivered under this Order
shall not constitute acceptance of Seller’s Terms and Conditions.
The Terms and Conditions hereof are intended as final, complete and
exclusive statement of agreement between the parties, and no change
in, modification of, or revision of this Order shall be valid unless
in writing and signed by Buyer.
Time is and shall remain
a material element of this Order and no acts of Buyer, including modifications
of this Order or acceptance of later deliveries, shall constitute a
waiver of this provision. Seller shall immediately notify Buyer,
in writing, of any actual or potential delay in the performance of this
Order. Such notice shall include a plan for corrective action
and recovery schedule and shall not be construed as a waiver of Buyer’s
rights and remedies hereunder.
Seller shall at all
times comply with Buyer’s shipping instructions. The Order number
must appear on all shipping documents including bills of lading, bills,
and invoices.
All products shall
be packed by Seller in suitable containers of sufficient protection
during shipment and storage. When products are packed to avoid
contamination, a notice to this effect must be prominently placed on
the bill of lading, packing list and packages. No charges will
be allowed for handling, packaging, storage, transportation and insurance
in transit unless expressly stated herein.
Unless otherwise specifically
agreed to in writing by Buyer, Seller shall not make material commitments
or production arrangements in excess of the amount or in advance of
the time necessary to meet Buyer’s delivery schedule. Buyer
reserves the right to refuse or return at Seller’s risk and expense,
shipments made in excess of Buyer’s Orders or in advance of required
schedules. Shipments of the products hereunder shall be made in
accordance with all applicable laws and regulations.
Payment will be in United
States dollars unless otherwise stated in the Order.
Seller expressly warrants
that all products furnished hereunder will conform to the specifications,
drawing, samples and other descriptions furnished or adopted by Buyer
and will be fit and sufficient for the purpose intended, new,
clean and in good repair, of first class material and workmanship and
free from defects. This warranty extends to Buyer and Buyer’s
customer. Seller shall be liable for and deem Buyer harmless from
any loss, damage, or expense that Buyer may suffer from breach of any
of these warranties. Remedies include repair, replacement or reimbursement
of the purchase price of nonconforming products at Buyer’s election.
Seller further warrants
that it has and will transfer to Buyer clear and unencumbered title
to the products. The shipment of products shall constitute a certification
by Seller that it holds available for review by Buyer documentary evidence,
in the form of physical reports with respect to related materials and/or
processes, indicating conformance to applicable specifications.
Seller also warrants that the prices specified in this Order do and
will not on the date of delivery of the products exceed Seller’s prices
to any other customer for like products and quantities, whether such
customers are other commercial customers, or the Government.
All rights and remedies
of Buyer set forth in this Order or available at law shall be cumulative
and not alternative, and shall not be exhausted by any one or more uses
thereof.
When specified in purchasing
documents, Buyer, Buyer’s Customer and/or any regulatory agencies
shall have the right to perform verification of Product (Verification
Personnel) on Seller’s or Seller’s supplier’s premises, prior
to shipment. Such product verification shall include, but not
be limited to, inspection of product, to the extent practicable, at
all places and times including during the manufacturing or fabrication
at Seller’s facilities or elsewhere. Seller and Seller’s suppliers
will furnish, without additional charge, all reasonable facilities and
assistance for the safety and convenience of the Verification Personnel
performing their duties on Seller or Seller’s supplier’s premises.
Verification Personnel may reject and return all products which are
found to be defective for repair or replacement at Seller’s expense.
Failure to inspect products, failure to discover defects in products,
or payment for products shall not constitute acceptance, waiver of warranty
rights, or limitation of any Buyer’s other rights and remedies hereunder
or at law. Final inspection and acceptance shall occur at Buyer’s
facility.
The purchase price
is fixed as stated in the Order and shall constitute the entire consideration
paid to Seller for the products and includes product boxing, crating,
packaging and other services normally supplied in the trade. All
present or future import duties, taxes and inspections etc. shall be
paid by the Supplier. The Supplier is responsible for obtaining
import licenses and all other permits required for the deliveries to
the country of destination. Invoices shall not bear a date prior
to the date of complete shipment of performance. The Supplier
is responsible to notify Facet Technologies in writing for any surcharges
fixed or variable and must be approved by Facet Technologies prior to
implementation.
Notwithstanding the specifications,
drawings, samples and other descriptions furnished by Buyer, Seller
warrants that products and the sale or use thereof by Buyer or any transferee
will not infringe any U.S. or foreign Letters of Patent, copyrights,
trade secrets or other intellectual property rights. Seller at
its own expense shall defend, protect and hold harmless Buyer, its successors
and assigns, customers and users of the products, against all claims,
demands, actions, or suits at law of in equity alleging or arising from,
actual or alleged infringement. Seller shall indemnify the aforesaid
named persons and entities against all damages, costs, and expenses,
including all legal expenses arising therefrom. Further, seller
shall replace or modify infringing products with comparable products
acceptable to Buyer of substantially same form, fit, and function so
as to remove the source of infringement, and shall extend this provision
thereto. If the use or sale of any of the above products is enjoined
as a result of such claim, suit or action, Seller at no expense to Buyer,
shall obtain for Buyer and its customers the right to use and sell said
product.
Title and risk of loss
of damage to the products shall remain with Seller until the products
are received at Buyer’s facility.
The waiver by Buyer of
any breach of any term or condition of this order shall not be deemed
a waiver of any subsequent breach of the same or any other term or condition.
In the event that Seller,
its employees, agents or subcontractors enter Buyer’s or its’ Customer’s
premises for any reason in connection with this order, Seller, its subcontractors
and lower-tier subcontractors, shall produce and maintain worker’s
compensation, comprehensive general liability, bodily injury and property
damage insurance as defined by Facet Technologies, and such other insurance
as Buyer may require and shall comply with all site requirements.
Seller shall indemnify and hold harmless Buyer, its officers, employees
and agents from any losses, costs, claims, causes of action, damages,
liabilities, and expenses, including attorneys’ fees all expenses
of litigation and/or settlement, and account costs by reason of property
damage or personal injury to any person caused in whole or in part by
the action or omissions of Seller, its officers, employees, agents,
suppliers, or subcontractors at any tier. If requested, Seller
shall send “Certificate of Insurance” showing Seller’s compliance
with these requirements.
All information furnished
by Buyer or any other person acting on behalf of Buyer and all information
learned or observed about Buyer or its operations through performing
this Order is confidential; and Seller shall not disclose any such information
to any other person, or use such information for any purpose other than
performing this Order without Buyer’s express written consent.
All information in tangible form, including drawings, samples, models,
specifications, or other documents provided by Buyer or prepared by
Seller for Buyer shall be returned to Buyer promptly upon request.
Seller shall not publicize the fact that Buyer has contracted to purchase
goods or services from Seller, nor shall any information relating to
this Order be disclosed without Buyer’s written consent. Unless
otherwise agreed in writing, no information disclosed by Seller to Buyer
shall be deemed confidential and Seller shall right against Buyer with
respect Buyer’s use therof.
Buyer shall have the right
by written Order to suspend work, or to make changes from time to time
to any Order for services to be rendered or the products to be furnished
by Seller hereunder, including with regard to quantities, drawings,
designs, specifications, place of delivery, delivery schedules and methods
of shipment and packaging. If such suspension or change causes
an increase or decrease in the cost of performance of this Order or
in the time required for its performance, an equitable adjustment shall
be negotiated promptly and the order shall be modified in writing accordingly.
IF Seller has a claim for any adjustment under this paragraph, it must
be asserted in writing to Buyer within seven (7) days of receipt of
notice of change and must include the amount claimed with support cost
figures. Any such claim must be agreed to in writing by Buyer
to be effective.
Buyer shall have the right
to terminate this Order at any time and from time to time in whole or
in part for the convenience of Buyer. Such termination can be
effected at any time effective immediately upon written notice from
Buyer to Seller. In the event of any such termination, Buyer shall
equitably determine the amount owed to Seller for work done prior to
such termination.
Buyer may at any time,
by written notice to Seller, require Seller to stop all or any part
of the work called for by this Order for a period of up to ninety (90)
days after the notice is delivered to Seller (“Stop Work Order”).
Upon receipt of the Stop Work Order, Seller shall comply with its terms
and take all reasonable steps to minimize the incurrence of costs allocable
to the work covered by the Stop Work Order during the period of work
stoppage. Within (90) days after a Stop Work Order is delivered
to Seller, or within any extension of that period which the parties
have agreed, Buyer shall either cancel the Stop Work Order, or terminate
the work covered by this order as provided in the “Termination for
Convenience” sections of this Order, whichever may be appropriate.
Seller shall resume work upon cancellation or expiration of any Stop
Work Order. If the Stop Work Order results in an increase in the
time required for the performance of this Order or in Seller’s costs
properly allocable thereto, an equitable adjustment shall be made in
the delivery schedule or prices hereunder, or both and this Order shall
be modified in writing accordingly.
All information, drawings,
plus all tools, jugs, dies, fixtures, materials and other items furnished
or paid for by Buyer shall be, and remain the property of Buyer, and
shall be 1) subject to removal at any time without additional
cost upon demand by Buyer, and 2) used only in filling orders
from Buyer. Seller shall have the obligation to maintain any and
all property furnished by Buyer to Seller and Seller shall be responsible
for all loss or damage to said property except for normal wear and tear.
The Order and all documents
incorporated by reference constitute the entire agreement of the parties
as to the subject matter hereof. In the event of any inconsistency
among the foregoing, the inconsistency shall be resolved by giving precedence
in the following Order: 1) provisions set forth in this Order,
2) the specifications, 3) the drawings, 4) these Terms and Conditions,
and 5) the other documents incorporated by reference.
Neither party shall be
liable in damages for any delay or default in performing hereunder if
such delay or default is caused by conditions beyond its control including,
but not limited to Acts of God, Government restrictions, wars, insurrections
and/or any other cause beyond the reasonable control of the party whose
performance is affected. The party invoking Force Majeure shall
provide the other party confirmation of the existence of the circumstance
constituting the Force Majeure.