FLAME SPRAY INC. Purchase Order Terms and Conditions
AGREEMENT. These Standard Purchase
Order Terms and Conditions shall apply to any Purchase Order (a
"P.O.") issued to seller by CompuCraft Industries hereinafter referred
to as "Buyer." Unless otherwise provided in a written agreement
expressly by Seller and Buyer, each P.O. accepted by Seller, together with all
documents expressly referenced in such P.O., the Representation and
Certifications form executed by Seller (if any) and these Terms and Conditions,
shall constitute the entire agreement (the "Agreement") between Buyer
and Seller with respect to the purchase, sale and delivery of the product(s)
described in such P.O. (the "Products") and the performance of any
work described in the P.O. and shall supersede all prior agreements,
understandings and representations between Seller and Buyer with respect
thereto. Any additional or different terms stated by Seller in any proposal,
quotation, confirmation, acknowledgment, invoice or otherwise shall be of no
force and effect, and no course of dealing, usage of trade, or course of
performance shall be relevant to explain or supplement any term expressed in the
Agreement.
DELIVERY. Unless otherwise expressly specified in the P.O., all
deliveries of Products shall be made FOB origin. Seller shall deliver the
Products and/or complete the work specified in the P.O. on or before the
applicable "Due Date" indicated in the P.O.; provided, however, that
Buyer, in its sole discretion, may refuse to accept Products delivered outside
of our Delivery Terms of 5 days Early | 0 days Late. Time is of the essence in
the performance of Seller’s obligations under the Agreement.
TITLE AND RISK OF LOSS. Seller warrants that it has good and clear
title, free from any security interest, lien, or other encumbrance, to all
Products to be delivered to Buyer. Title and risk of loss or damage to the
Products shall pass to Buyer upon delivery to the FOB point, subject to Buyer’s
right to reject non-conforming Products or deliveries shall remain with Seller
unless and until Buyer finally accepts such Products or deliveries.
INSPECTION; ACCEPTANCE. Final inspection of Products delivered shall be
made at Buyer’s premises unless otherwise specified in writing signed by both
parties. Buyer shall either accept or reject Products or work within the later
of (a) sixty (60) days after the Due Date specified in the P.O. or (b) sixty
(60) days after receiving such Products or work. Any non-conformity in any
Products or work shall entitle Buyer to reject such Products or work or to
revoke its acceptance thereof. At Buyer’s option, Buyer may return
non-conforming Products or work to Seller, freight collect, or Buyer may modify
or adapt non-conforming Products to work or render it acceptable. If Buyer
elects to return such non-conforming Products or work, Seller shall issue a
return authorization number (RMA) for all non-conforming Products within 24
hours after Buyer’s request, and such non-conforming Products or work shall be
the property of the Seller. If Buyer elects to modify or adapt non-conforming
Products or work, Buyer may offset all costs incurred in performing any such
modifications and adaptations against any and all amounts otherwise due to
Seller or, at Buyer’s option, may bill Seller directly for such costs.
CUSTOMER VERIFICATION OF
SUBCONTRACTED PRODUCT, RIGHT OF ENTRY. Parts subcontracted to a supplier's facility may be reviewed at the
supplier's facility by the subcontractor's customer as well as regulatory
representatives. Verification by the subcontractor's customer or regulatory
authority does not absolve the supplier of the responsibility to provide
acceptable product, nor shall it preclude subsequent rejection by the customer
or regulatory agency.
PRICE AND PAYMENT TERMS. The prices of Products delivered and work
performed shall be as specified in the Buyers purchase price therefor. The P.O.
will specify whether items listed therein are taxable, and Seller shall invoice
Buyer accordingly. Buyer shall pay for Products and work accepted within the
later of (a) forty-five (45) days after Buyer’s acceptance of such Products or
work or (b) forty-five (45) days after receipt of Seller’s invoice therefor.
Buyer shall have no obligation to pay for any Products or work that is rejected
or as to which acceptance is revoked in accordance with Paragraph 4 above.
(Unless otherwise agreed upon and new payment terms stated on purchase order).
WARRANTIES. Seller warrants that all Products delivered and work
performed under the Agreement shall be free from defects in workmanship and
material and fit for the purposes for which such Products or work is intended.
Further, all Products delivered and work performed shall contain all new
materials, shall strictly conform to the requirements, specifications,
certifications and conditions as stated in the P.O. and all other specifications
furnished by Buyer therefor, and shall conform to Seller’s specifications to
the extent such specifications are consistent with those provided by Buyer; in
the event Seller’s specifications, certifications and conditions supersede
those as stated in the P.O., it is the responsibility of the Seller to provide
documentation authenticating that said specifications, certifications and
conditions are current requirements for those specifications, certifications and
conditions as stated in the P.O. Failure to provide said authentication
documents might hinder the payment of Seller’s invoice as stated in Paragraph
5.
INFRINGEMENT. In addition to the warranties set forth in Paragraph 6,
Seller warrants that all Products delivered and worked performed shall be
delivered free of any claim that such Products or work infringes any patent,
copyright, trade secret, or other intellectual property right of any third
party, except insofar as such claims are based solely on Seller’s literal
compliance with Buyer’s written specifications for such Products or work.
Seller shall indemnify, defend and hold Buyer and its customers harmless against
any losses, damages liabilities, costs and expenses (including reasonable
attorneys’ fees) arising out of or resulting from any claim alleging facts
that, if true, would constitute a breech of the warranty stated in this
Paragraph 7. Buyer will notify Seller of any such claim and permit Seller, at
Seller’s sole expense, to defend or settle such claim. In the event that any
Product or work is determined to infringe any intellectual property of any third
party, Seller shall, at Buyer’s option, either: (i) obtain from such third
party, at Seller’s sole expense, the right for Buyer and Buyer’s customers
to continue using the infringing Products and/or work, (ii) modify the Products
and/or work at Seller’s sole expense so as to render them non-infringing,
while maintaining substantially identical fit, form and function, or (iii)
refund to Buyer the aggregate purchase prices paid for all infringing Products
and work (which may include the costs associated with replacement Products
and/or work having to be expended to make up for any and all schedule variances
caused by said infringing Products and/or work).
BUYER PROPERTY. All property used by Seller in connection with its
performance under the Agreement which is owned, furnished or consigned by Buyer,
or is charged to or paid for by Buyer, including but not limited to materials,
tools, dies, jigs, molds, patterns, fixtures, equipment, drawings,
specifications and other documentation (the "Property") shall be and
remain the property of Buyer. Unless already so marked by Buyer, Seller shall
identify and conspicuously mark all Property, as belonging to Buyer and, upon
request, shall furnish Buyer a list of all Property being held by Seller. All
Property shall be used only for Seller’s performance under the Agreement and
held at Seller’s risk and insured at Seller’s sole expense in an amount
equal to its replacement cost, with loss payable to Buyer. Buyer may inspect
and/or remove any Property at any time at no charge to Buyer, and Buyer shall
have reasonable access to Seller’s premises for such purpose. Seller shall
return such Property to Buyer upon Buyer’s demand at Seller’s sole expense.
PATENT AND DATA RIGHTS. Seller agrees to promptly disclose to Buyer and
upon request to assign to Buyer, each invention conceived or first actually
reduced to practice during the performance of the Agreement. Further, Seller
hereby grants to Buyer a royalty-free, non-exclusive, unrestricted, irrevocable,
world-wide license to use, duplicate, or disclose for any purpose whatsoever and
to authorize others to do so, all data and information (including but not
limited to writings, recordings, pictorial reproductions, drawings, computer
programs and/or files, other graphic representations and works of any similar
nature) required to be furnished and/or actually furnished to Buyer under the
Agreement.
CONFIDENTIALITY; PUBLICITY. Except as necessary for its performance
under the Agreement, Seller shall not disclose to any person (including but not
limited to any company affiliated with Seller and any consultant or independent
contractor of Seller), reproduce, or use any information furnished by Buyer
under the Agreement (whether or not marked as confidential or proprietary), and,
at Buyer’s request, Seller shall return all such information to Buyer.
Further, Seller shall not issue any news release, advertisement, publicity, or
promotional material regarding the Agreement or Seller’s relationship with
Buyer without Buyer’s prior written consent. The provisions of this Paragraph
10 shall survive the termination or cancellation of any or all P.O.’s under
the Agreement.
CHANGES. Buyer may at any time instruct Seller to make changes within
the general scope of the Agreement in any of the following: (I) Buyer’s
drawings, designs, or specifications furnished to Seller; (ii) Seller’s method
of shipment or packing; (iii) the quantities of Products ordered; (iv) the place
of delivery, and/or (v) the delivery schedule. If any such change causes an
increase or decrease in the cost of, or time required for, performance under the
Agreement, Seller shall have thirty (30) days to request adjustments in the
price and/or delivery schedule for Products directly affected by the Buyer’s
changes. To the extent that Buyer agrees to such adjustments, Buyer shall revise
the P.O. accordingly. Any requests by Seller for adjustments under this
Paragraph 11 shall be deemed waived if not asserted within such 30-day period,
and failure to agree to an adjustment shall not excuse Seller from performance
in accordance with the revised P.O. in the event that Seller makes changes in
its design, manufacturing process, or specifications that affect Products to be
delivered or work to be performed under the Agreement, even if such changes do
not materially alter the form, fit or function of such Products or work. Seller
shall inform Buyer of such changes not less than thirty (3) days before the Due
Date in the P.O. specified for such Products or work.
REPRESENTATIONS. By acceptance of Buyer’s P.O., Seller is certifying
that Seller is in full compliance with the Fair Labor Standards Act of 1938, as
amended, and regulations issued there under. Upon request, Seller shall furnish
Buyer with satisfactory evidence of its compliance with the representations in
this Paragraph 12.
TERMINATION; CANCELLATION. Unless otherwise provided in a written
agreement executed by Seller and Buyer, Buyer may terminate any P.O. or any
portion thereof upon giving notice to Seller of such termination not less than
two (2) business days prior to the earliest applicable Due Date set forth in the
original P.O., and Buyer will revise or revoke the P.O. accordingly. Within ten
(10) business days after receiving notice of such termination, Seller shall
advise Buyer in writing of any cancellation charges it desires to impose as a
direct result of such termination. To the extent such charges are deemed
reasonable in the Buyer’s sole discretion, Buyer will pay such cancellation
charges within forty-five (45) days after the date of the Seller’s written
request therefor. Any request by Seller for cancellation charges shall be deemed
waived if not asserted within ten (10) business days after Buyer’s termination
notice. Notwithstanding the foregoing, Buyer may cancel any P.O. or portion
thereof without charge at any time upon notice to Seller if: (a) Seller fails to
timely perform any of its obligations under the Agreement and such failure is
not cured within ten (10) days after written notice of such failure is delivered
to Seller, and/or (b) there is or comes to be any material misstatement or
omission in the Representation and Certification submitted to Buyer by Seller
(if any) or in any of Seller’s representations in Paragraph 12.
ASSIGNMENT. Seller shall not assign any of its rights or delegate any of
its obligations under the Agreement without the prior written consent of the
Buyer, and any assignment in violation of this provision shall be null and void.
Notwithstanding the foregoing, Seller may assign claims for monies due or to
become due under the Agreement without the Buyer’s consent provided that
Seller promptly furnishes Buyer with two (2) signed copies of all documentation
evidencing such assignment and further provided that payment to any assignee
shall be subject to setoff or retrieval of any present of future claim(s) that
Buyer may have against Seller. Regardless of any such assignment, Buyer shall
continue to deal directly with Seller with respect to all matters other than
payment of monies due under the Agreement.
APPLICABLE LAW. The Agreement shall be governed by the laws of the State
of California. All disputes arising in connection therewith shall be heard only
by a court of competent jurisdiction in San Diego County, California, and the
prevailing party in any legal proceeding shall be entitled to recover its
reasonable attorneys’ fees incurred in connection therewith. The U.N.
Convention on Contracts for the International Sale of Goods shall not apply to
the purchase of Products or services by Buyer.
EQUAL OPPORTUNITY. The Agreement is subject to Executive Order 11246 and
Labor Department Order No. 4, including revision of December 4, 1971, OFCCP
order number 14, January 14, 1972, section 503 of the Rehabilitation Act of
1973, section 402 of the Vietnam Era Veterans Readjustment and Assistance Act of
1974, the Americans with Disabilities Act of 1990, and all rules and regulations
promulgated pursuant thereto, as any of such laws or regulations may be amended
at any time, all of which are incorporated herein by the reference.
MISCELLANEOUS PROVISIONS. No addition or modification of the Agreement
shall be effective unless made in writing and signed by the representatives of
Seller and Buyer. Any delay of failure to enforce at any time any provision of
the Agreement is determined to be invalid, illegal, or otherwise unenforceable,
the remaining provisions shall remain in full force and effect. The rights and
remedies expressly provided to Buyer herein are not exclusive, but cumulative
and in addition to any other rights and remedies available at low or in equity.
CORRESPONDENCE. Seller shall place Buyer’s applicable P.O. number on
all notices, correspondence, invoices, packing slips and packages pertaining
thereto. All written correspondence other than invoices shall be sent to the
attention of the person identified as the "Buyer" on the P.O.,
addressed to: FLAME SPRAY INC. 4674 Alvarado Cyn Rd, San Diego, CA 92120
All Invoices shall be sent to the attention of the Accounts Payable Department
at the same address.
SUPPLIER DAMAGED HARDWARE:
Where Parts are damaged at the supplier's facility resulting in a
replacement requirement, cost of processing said damaged parts would be
debited at 3 times the value of the process.