This Purchase Order is an offer by TARGAN Inc., a Delaware corporation (“Buyer”) for the purchase from the seller (“Seller”) listed on the face of Buyer’s Purchase Order of the goods or services specified on the face of the Purchase Order in accordance with and subject to these terms and conditions (these “Terms”, and, together with the Purchase Order, this “Contract”). This Contract supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of this order. This Contract expressly limits Seller’s acceptance to the terms of this Contract. These Terms prevail over any terms or conditions contained in any other documentation provided by Seller and expressly exclude any of Seller’s general terms and conditions of sale. In the event of any conflict or inconsistency between (a) the face of the Purchase Order and (b) these Terms, the face of the Purchase Order shall control. These Terms apply to any repaired or replacement goods provided by Seller hereunder. Buyer is not obligated to any minimum purchase or future purchase obligations under this Contract.
DELIVERY DATE; TIME IS OF THE ESSENCE. Seller shall deliver the goods in the quantities and on the date(s) specified in the Purchase Order or as otherwise agreed in writing by the parties. Time is of the essence for delivery of goods and services under this Contract. In the event of delay, or anticipated delay, from any cause, Seller will immediately notify Buyer in writing of the delay or anticipated delay, and its approximate duration, and Seller agrees to take all reasonable commercial efforts to mitigate, shorten or make up the delay by all reasonable and expeditious means. If Seller fails to deliver goods or services in full by the applicable delivery date, Seller shall indemnify Buyer against any Losses (as hereinafter defined) resulting from Seller’s failure to deliver the goods by the applicable delivery date. If Seller delivers more or less than the quantity of goods ordered, Buyer may reject all or any excess goods. Any such rejected goods shall be returned to Seller at Seller’s risk and expense. If Buyer does not reject the goods and instead accepts the delivery of goods at the increased or reduced quantity, the price for the goods shall be adjusted on a pro-rata basis.
All goods shall be packed for shipment according to Buyer’s instructions or, if there are no instructions, in a manner sufficient to ensure that the goods are delivered in undamaged condition. Seller must provide Buyer prior written notice if it requires Buyer to return any packaging material. Any return of such packaging material shall be made at Seller’s risk and expense.
Delivery Terms. Delivery shall be made in accordance with the delivery terms on the face of the Purchase Order. If no delivery terms are specified on the face, the delivery terms shall be FOB Buyer’s facility in Raleigh, NC. Seller shall give written notice of shipment to Buyer when the goods are delivered to a carrier for transportation. Unless otherwise agreed, Seller must prepay all transportation costs and Seller must also pay the costs of any unauthorized shipment. Seller shall not declare any value on such materials shipped via United Parcel Service, Rail Express, Air Express, Air Freight or Parcel Post or otherwise. Seller shall release rail or truck shipments at the lowest release valuation permitted in the governing tariff or classification. No extra charges of any kind will be allowed for transportation unless specifically agreed to in writing by Buyer. No charges will be allowed Seller for insurance, packing, breaking, freight, express, or cartage unless otherwise stated on the face of the Purchase Order.
Title and Risk of Loss. Title passes to Buyer upon delivery of the goods to the delivery location. Seller bears all risk of loss or damage to the goods until delivery of the goods to the delivery location.
Seller shall provide Buyer all shipping documents, including the commercial invoice, packing list, air waybill/bill of lading and any other similar documents. Seller shall include the Purchase Order number and buyer part number (where applicable) on all such shipping documents, invoices, correspondence and any other documents pertaining to this Contract.
All goods and services provided under this Contract are subject to inspection and test by Buyer and its customer at any and all times, including during manufacture, and Buyer shall at all times have the right to witness all tests by Seller involved in performance of this Contract. Regardless of when payment is made and without prejudice arising from any prior performance, delivery or acceptance under this Contract, Buyer, in addition to its other rights, reserves the right to reject any part of the goods, services or work which does not conform to this Contract with an adjustment in purchase price, or to require prompt correction or replacement thereof at Seller’s expense, including transportation charges and labor costs for receipt or return of rejected goods or services. Buyer’s failure to inspect and accept or reject goods or services shall neither relieve Seller from responsibility for such goods or services nor impose liabilities on Buyer for them. Buyer reserves all rights to reject any goods, in whole or in part, at a later time upon discovery of a latent defect or non-compliance not apparent by normal visual inspection. If any goods are rejected by Buyer, Seller will not ship any replacement goods without the prior written approval of and in accordance with the instructions provided by Buyer.
The price of the goods and services is the price stated on the face of the Purchase Order. If no price is included in on the face of the Purchase Order, the price shall be the price set out in Buyer’s quotation. If no price is included on the face of the Purchase Order or in Buyer’s quotation, the price shall be Seller’s published price list in force as of the date of the Purchase Order. Unless otherwise specified in the Purchase Order, the price includes all packaging costs, transportation costs (as described in Section 4), and taxes (as described in Section 9). No increase in the price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Buyer. Prices will only be reviewed for increases once each calendar year and any pricing increases will go into effect 30 days from Seller’s review and consent.
Unless otherwise provided for in the Purchase Order, Seller is responsible for payment of, and the price set forth in the Purchase Order includes, all sales, use, excise, value-added, goods and services, business (franchise or privilege), and other such taxes, tariffs, duties, fees, levies, charges or other assessments of whatever nature imposed by governing authorities or any jurisdiction applicable in connection with performance under this Contract.
PAYMENT TERMS. Payment shall be made in US dollars on net 60-day terms.
Seller warrants to Buyer that all goods will for the Warranty Period (as hereinafter defined): (a) be free from any defects in workmanship, material and design; (b) be fit for their intended purpose and operate as intended; (c) be merchantable; (d) conform to the descriptions, data, drawings, plans, specifications, any performance criteria, and other requirements specified herein or provided by Buyer to Seller; (e) be free and clear of all liens, security interests or other encumbrances; and (f) not infringe or misappropriate any third party’s patent or other intellectual property rights. Any services to be provided by Seller shall be provided in good and workmanlike manner, in accordance with applicable laws and industry standards. All warranties described in this paragraph survive any delivery, inspection, acceptance or payment of or for the goods or services by Buyer. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Buyer’s discovery of the noncompliance of the goods or services with the foregoing warranties. Buyer’s approval of Seller’s design, material, process, drawing, specifications or the like shall not be construed to relieve Seller of the warranties set forth herein, nor shall a waiver by Buyer of any drawing or specification request for one or more articles constitute a waiver of any such requirements for the remaining articles to be delivered hereunder unless so stated by Buyer in writing. For purposes of this Contract, “Warranty Period” shall mean the longer of the following time periods: (i) 18 months from the day of first use of the goods by Buyer or acceptance by Buyer, whichever occurs later; (ii) if the goods are incorporated, in whole or in part, into goods sold by Buyer to third parties, 18 months after acceptance by such third parties or the time period of warranty that Buyer gives to such third parties, whichever occurs later.
If Buyer experiences any defect, failure or non-conformity during the Warranty Period, Buyer shall have the right to take the following actions, at Buyer’s option: (a) retain the defective goods in whole or in part with an appropriate adjustment in the price for the goods; (b) require Seller to repair or replace the defective goods in whole or in part at Seller’s sole expense, including all shipping, transportation and installation costs (wish such repair or replacement re-warranted for 12 months following delivery of the repaired or replacement goods to Buyer); and (c) correct or replace the defective items with similar items and recover the total cost from Seller, including the cost of product recalls. Notwithstanding the foregoing, Seller agrees to waive the expiration of the Warranty Period in the event there are failures or defects discovered after the Warranty Period of a significant nature or in a significant portion of the goods, or a defect is discovered which, in Buyer’s opinion, constitutes a threat of damage to property or to the health and safety of any person.
All non-public, confidential or proprietary information of Buyer disclosed by Buyer to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with this Contract is confidential and may not be disclosed or copied unless authorized by Buyer in writing. Upon Buyer’s request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this paragraph.
INTELLECTUAL PROPERTY RIGHTS. Seller grants to Buyer an irrevocable, non-exclusive, worldwide, perpetual, royalty-free license to Seller’s intellectual property needed to resale or use the goods in Buyer’s operations. Nothing in this Contact shall restrict Buyer’s freedom to operate.
Set-off. Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off at any time any amount owing to it by Seller or any affiliate of Seller against any amount payable by Buyer to Seller under this Contract.
Seller shall defend, indemnify and hold harmless Buyer and its directors, officers, shareholders and employees and Buyer’s customers against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with (a) any goods or services that do not conform to the warranties set forth in this Contract, (b) Seller’s negligence, intentional omission, willful misconduct, or breach of this Contract, (c) any claim or allegation that Buyer’s use or possession of the goods infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party, or (d) any personal injury, property damage, or death caused by Seller’s goods or services. Seller shall not enter into any settlement of any claim for which it is required to indemnify Buyer under this paragraph without Buyer’s prior written consent.
Seller agrees to maintain commercially reasonable and industry standard insurance coverages and to provide to Buyer a certificate of such insurance upon request.
COMPLIANCE WITH LAWS AND RULES. Seller represents, warrants, covenants, and agrees that it is, and the goods and services are, in compliance with and shall comply with all applicable laws, regulations and ordinances. Seller has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Contract.
If Seller will be providing services on Buyer’s premises, Seller must comply with all safety instructions and policies of Buyer (which may include requirements regarding insurance coverage), which Buyer will provide to Seller on request.
APPLICABLE LAW. This Contract shall be governed by, and construed in accordance with, the laws of the State of Delaware and the laws of the United States of America applicable therein. Any legal suit, action or proceeding arising out of or relating to this Contract shall be instituted in the federal courts of the United States of America or the courts of the State of North Carolina in each case located in the City of Raleigh and County of Wake, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. APPLICATION OF THE UN CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS (“CISG”) IS EXPRESSLY EXCLUDED.
Buyer may terminate this Contract with immediate effect upon written notice to Seller, either before or after the acceptance of goods or services, if Seller has not performed or complied with any of these Terms, in whole or in part. If Seller becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then Buyer may terminate this Contract upon written notice to Seller. If Buyer terminates this Contract for any reason, Seller’s sole and exclusive remedy is payment for the goods and services received and accepted by Buyer prior to the termination. Seller may not charge Buyer any termination, cancellation, return, or restocking fees.
HAZARDOUS GOODS. Seller is solely responsible for examining, inspecting, identifying, and determining whether any goods provided hereunder (in whole or in part) constitute hazardous or dangerous goods, and to notify Buyer of such prior to shipment of the goods. Unless expressly exempted by Buyer in writing in the Purchase Order, Seller is responsible to determine if a Material Safety Data Sheet (MSDS) is required for the goods, and if so, to supply with the goods all such required MSDS documentation and information. Seller shall ensure that all hazardous goods are properly handled, labeled, documented, packaged, transported, and shipped in full compliance with any applicable legal requirements, to the point of delivery to Buyer. Seller shall inform Buyer in writing prior to shipment of any precautionary measures that need to be taken with the goods.
IMPORT AND EXPORT COMPLIANCE. Seller agrees that it is solely responsible in its performance under this Contract or required compliance with the import and export laws and regulations of the United States of America, and to the extent applicable to this Contract, the import and export laws and regulations of any other jurisdiction or country. Seller understands and acknowledges that (a) Buyer will rely on the information provided by Seller, including making a determination whether any U.S. or foreign export or import license is required for the export of the supplied materials to the country of destination; (b) Seller is responsible for compliance with local import and export control laws of any jurisdiction, and is responsible for compliance with applicable U.S. re-export laws; and (c) Seller will be fully responsible for the accuracy and completeness of import and export documentation prepared or executed by Seller as part of Seller’s performance of this Contract.
MODIFICATION; WAIVER; ASSIGNMENT. No modification, termination, or any claimed waiver of any of the provisions of this Contract shall be binding unless in writing and signed by the party against whom such modification or waiver is sought to be enforced. Any failure of Buyer to exercise its rights or remedies with respect to any installment or part performance shall not be deemed a waiver of remedies as to subsequent performance or installments. This Contract may be assigned only by Buyer and any attempted assignment by Seller without the prior written consent of Buyer shall be void or voidable at the election of Buyer.
RIGHT TO AUDIT. Seller will maintain for a minimum period of five (5) years after final payment has been made to Seller under this Contract all records and accounts pertaining to goods sold or services provided hereunder. Seller agrees that Buyer will have the right to audit, copy and inspect, or cause to have audited, copied and inspected, Seller’s records and accounts pertaining to performance under this Contract at all reasonable times during the course of performance hereunder and for a minimum period of five (5) years after final payment has been made to Seller.
MISCELLANEOUS. (a) If any term or provision of this Contract is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Contract or invalidate or render unenforceable such term or provision in any other jurisdiction. (b) No ambiguity in any provision contained herein shall be construed against a party by reason of the fact it was drafted by such party or counsel. (c) The relationship between the parties is that of independent contracting parties. No agency, partnership, or relationship of exclusivity shall be construed from this Contract. (d) Provisions of this Contract which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Contract including, but not limited to, the following provisions: Set-off, Warranties, Indemnification, Confidentiality, Applicable Law.
