A. THESE PURCHASE ORDER TERMS AND CONDITIONS (“TERMS”) CONSTITUTE THE ENTIRE CONTRACT APPLICABLE TO THE PURCHASE ORDER (“ORDER”) SUBMITTED BY THE APPLICABLE BUYER SET FORTH ON THE ORDER (TECHNOLGY SOLUTIONS (UK) LTD) (“BUYER”) TO THE SELLER (“SELLER”) NAMED ON THE ORDER OR TO SELLER TO WHOM THE ORDER IS SUBMITTED COVERING THE GOODS (“GOODS”) DESCRIBED HEREIN. ANY PROVISIONS IN ANY ACKNOWLEDGMENT FORM OR OTHER DOCUMENT PREPARED BY SELLER WHICH VARY FROM OR ARE
ADDITIONAL TO THE PROVISIONS OF THESE TERMS SHALL NOT BIND BUYER AND ARE EXPRESSLY REJECTED UNLESS SET FORTH ON THE ORDER IN WRITING.
B. SELLER WILL BE DEEMED TO HAVE ACCEPTED THE ORDER UNLESS SELLER ACKNOWLEDGES EXCEPTIONS IN WRITING WITHIN TWO (2) BUSINESS DAYS AFTER THE DATE OF THE ORDER. ANY SHIPMENT OR PARTIAL SHIPMENT OF THE GOODS BY SELLER SHALL BE DEEMED TO BE AN ACCEPTANCE OF THE ORDER. IN THE EVENT OF ANY INCONSISTENCY BETWEEN THE TERMS OF THESE TERMS AND ANY PURPORTED ACCEPTANCE OR ACKNOWLEDGMENT FORM OR INVOICE BY SELLER OR ANY PREVIOUS COURSE OF DEALINGS, THE TERMS OF THESE TERMS SHALL PREVAIL. To the extent the Order is deemed an acceptance of a previous offer by Seller, any such acceptance is expressly conditioned on assent by Seller to the terms of these Terms and shipment of the Goods or beginning performance of any Services by Seller shall constitute such assent.
All invoices, packages, shipping notices, instruction manuals and other written documents regarding the Order shall contain the applicable Order number, Packing list shall be enclosed in each box or package shipped pursuant to the Order, indicting the contents therein. Invoices will not be processed for payment until all Goods invoiced are received.
3. Shipping Instructions
All Goods are to be shipped freight prepaid, D.D.P. (Incoterms 2000) destination, unless otherwise stated in writing on the Order. Where Buyer has so authorized in writing, Goods may be shipped D.D.P.. shipping point, but Seller shall prepay all shipping charges, route the Goods by the cheapest common carrier, or carrier specified, and list said charges as a separate item on Seller’s invoice. Risk of loss shall pass to Buyer on delivery of the Goods to Buyer at the named destination. Each invoice for shipping charges shall be accompanied by the original or a copy of the bill indicating that such charges have been paid. No C.O.D. shipments will be accepted without prior approval. At Seller’s expense, Seller will insure the Goods for Buyer’s account during shipment.
4. Special Charges
Seller shall be responsible for the payment of all charges for handling, packaging, wrapping bags, containers and related matters, unless Buyer has assumed an express obligation therefore by notation on the Order.
Time is of the essence, and the Order may be terminated if delivery is not made or services are not performed by the date specified on the reverse side hereof. No change in this scheduled delivery date or performance will be permitted without Buyer’s prior written consent. No acceptance of Goods or services after the scheduled delivery date will waive Buyer’s rights with respect to such late delivery nor shall it be deemed a waiver of future compliance with the terms hereof. The specific quantities ordered must be delivered in full and may not be changed without Buyer’s written consent. Any unauthorized quantity is subject to rejection and return at Seller’s expense. Buyer will pay only for quantities ordered. Overshipments will be held at Seller’s risk and expense for a reasonable time awaiting shipping instructions. Return shipping charges for over-shipped quantities will be at Seller’s expense. Buyer may at any time make changes in the delivery schedules, shipment methods, place of delivery, designs, quantities, and specifications for the Goods ordered hereunder. Buyer may terminate the Order in whole or in part at any time and for any reason upon written notice to Seller at least five (5) days before the scheduled delivery date set forth in the Order and Seller shall immediately stop work and terminate all orders and subcontracts to the extent that they relate to the terminated work and Order upon receipt of such notice. There shall be no charges for canceling Orders in accordance with this provision.
The Order must not be filled at prices higher than quoted to Buyer or shown on the Order. Any time pricing is unsatisfactory due to a deviation from the parameters described in the foregoing sentence; Buyer may cancel the Order on written notice. All prices set forth herein are subject to immediate change in accordance with any government price control regulations and/or orders.Invoices submitted at variance with the Order or for material shipped at variance with instructions on the Order will not be paid until approved by Buyer. Unless otherwise specified on the Order, Buyer shall pay the invoiced amount within forty-five (45) days after receipt of a correct invoice. Invoices shall not be sent to Buyer until shipment of the Goods has occurred.
7. Cash Discount
If Buyer is entitled to a cash discount, the period of computation thereof will commence on the date of acceptance or receipt of a correctly complete invoice, whichever is later. If an adjustment in payment is necessary due to damage, the cash discount period shall commence on the date on which an agreed adjustment of price is reached. If a cash discount is made part of the Order, but the invoice does not reflect the existence thereof, Buyer is entitled to a cash discount applies.
To the extent Seller is required by law to collect sales, use, excise or similar taxes, such taxes shall be a separate line item on invoices and shall be paid in full by Buyer, unless Buyer is exempt from such taxes and furnishes Seller with an appropriate certificate of exemption issued by the relevant governmental authority. Seller shall be responsible for the payment of all applicable value added, use, excise, income or other similar taxes pertaining to the sale of the Goods to Buyer, unless the parties otherwise agree in writing.
Seller shall not assign the Order or the right to payment due hereunder, without Buyer’s prior written consent.
10. Liens, Claims and Encumbrances
Seller warrants and represents that all the Goods will, when delivered hereunder, be free and clear of all liens, claims and encumbrances of every kind.
Buyer may (without limitation to any other remedies), by written notice of default to Seller, cancel the whole or any part of the Order, in any of the following circumstances:
A. If Seller fails to make delivery of the Goods or to perform the services within the time specified herein or any extension thereof.
B. If, in Buyer’s good faith judgment, the Seller fails to perform any of the other provisions of these Terms or fails to make progress as to endanger performance of the Order in accordance with its terms and does not cure such failure within a period of ten (10) days, or such longer period as Buyer may authorize in writing, after receipt of notice from Buyer specifying such failure.
C. Seller is in breach of any of the terms or conditions of these Terms; or
D. If Seller becomes insolvent or makes an assignment for the benefit of creditors, or if there shall be instituted by or against Seller any proceeding under any bankruptcy reorganization, arrangement, readjustment of debt or insolvency law or for the appointment of a receiver or trustee in respect to any of Seller’s property and such proceeding is not dismissed or cured within 30 days, or any equivalent event, appointment or proceeding occurs in relation to the seller in any jurisdiction.
A. If Seller breaches any terms or conditions of these Terms, Buyer may exercise, singly or in any combination and in any order, all rights and remedies available to the Buyer at law or in equity, as well as any other rights provided for under these Terms, including, without limitation, the right to, at Buyer’s option:
(1) In the case of defective or nonconforming Goods, require Seller to promptly repair or replace the Goods or any component thereof, and upon Seller’s failure to or refusal to do so, to repair or replace the same at Seller’s expense;
(ii) Require Seller to refund the purchase price and cost of shipment to Buyer;
(iii) In the case of defective or nonconforming Goods, to reject any shipment or delivery or part thereof;
(iv) Cancel any outstanding deliveries under the Order and treat the breach by Seller as Seller’s repudiation of the Order;
(v) Hold Seller liable for all delays or other failures to timely deliver conforming Goods in the quantities specified herein regardless of whether such delays or failures arise or result from actions or inactions of Seller, third parties or from any other actual or proximate cause, whatever its nature and such liability shall include, without limitation, all consequential, special and contingent damages including losses sustained or anticipated to be sustained by Buyer as a result of Buyer’s inability to meet its contractual obligations to third parties or to enter into contracts with third parties;
(vi) In the case where conforming Goods fail to arrive at the destination and within the time specified by the Order, Buyer may, but need not, immediately purchase substitutes therefor and Seller shall be liable for all damages and expenses resulting from such failure; and
(vii) Hold Seller liable to Buyer for all consequential and incidental damages and expenses (including reasonable attorneys’ fees) actually or proximately arising from an breach of Seller’s warranties and representations.
B. This failure of the Buyer to insist upon performance of any of the terms of these Terms or to exercise any rights hereunder shall not be construed as a waiver of Buyer’s rights and nothing in these Terms shall exclude or waive any remedies or rights available to the Buyer provided under any law or otherwise.
C. The Seller may be excused from performance under these Terms provided the Seller notifies the Buyer within one (1) business day of discovery of any of the below-named events.
1. Such events are, but not limited to, Acts of God, or of public enemy, acts of Buyer, acts of the government with lawful jurisdiction obey Seller in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes and unusually severe weather; or
2. The Seller’s failure to perform is caused by default of a supplier or sub-contractor and if such default arises out of causes beyond the control of both the Seller and the supplier or sub-contractor and without the fault or negligence of either of them, provided always that the Seller shall use all reasonable endeavors to obtain supplies or services from other sources in time to meet required delivery schedule(s), if such events or causes named above cause a supplier to default.
Seller warrants that all Goods delivered under these Terms shall conform to the requirements of these Terms that were or are provided to Buyer or are published by Seller including without limitation all technical descriptions, performance criteria, specifications and drawings, shall be of satisfactory quality, shall be free from defects in material and workmanship and shall be free from defects in design and fit for the intended purposes as Buyer has relied upon Seller’s ability, expertise and awareness of such intended purpose, all for a period of ten (10) years from delivery to Buyer. Buyer’s approval of designs furnished by Seller or any approval of Seller’s samples shall not relieve Seller of its obligations under this warranty. All of Seller’s warranty set forth in these Terms shall be enforceable by Buyer’s customers and any subsequent owner or operator of the Goods, as well as by Buyer. Any inspection or acceptance of the Goods by Buyer shall not be deemed to alter or affect the obligations of Seller or the rights of Buyer and its customers under these warranties. If Buyer identifies a warranty problem with the Goods during the warranty period, Buyer shall be entitled to seek any of the remedies set forth in Section 12 above. Any replacement or repaired Goods shall be warranted for the remainder of the warranty period or five (5) years, whichever is longer.
14.Quality and Inspection
Seller warrants that material furnished on these Terms will comply with the applicable specifications, and is subject to Buyer’s inspection upon receipt or upon use. Changes in material or configurations from those supplied on accompanying drawings will be at the Seller’s risk. If the Goods tendered do not wholly conform with the provisions hereof, Buyer shall have the right to reject such Goods. Nonconforming Goods will be returned to Seller freight collect and risk of loss will pass to Seller upon Buyer’s delivery to the common carrier.
Seller shall indemnify, defend and hold harmless, at its expense Buyer and its customers from and against any claim that any Goods furnished under these Terms or the normal use or sale thereof infringes any patent, trademark, copyright, or any other intellectual property right of any nature, or misappropriates any trade secret right and shall pay costs and damages finally awarded in any such suit, provided that Seller is notified in writing of the suit and given authority, information, and assistance at Seller’s expense for the defense of same. If the use or sale of said Good is enjoined as a result of such suit, Seller, at no expense to Buyer, shall obtain for Buyer and its customers the right to use and sell said Good or shall substitute an equivalent Good acceptable to Buyer and extend this indemnity thereto.
The Seller shall procure and maintain at all times adequate insurance against fire and other casualties covering all tools, fixtures, and material supplied by the Buyer to the Seller, and the Seller’s insurance shall include a clause providing that loss, if any, shall be payable to the Buyer as Buyer’s interest may appear.
17.Compliance with Laws
The Seller warrants that Seller will comply with the requirements of all applicable laws, regulations, and directives, including, but not limited to, all laws relative to prices, price discrimination, wages and hours, safety, and compensation., and that the Goods will comply with all laws and regulations applicable to such goods.
These Terms and any non-contractual dispute or obligation arising out of or in connection with it shall be governed in all respects by and construed in accordance with the law of England and Wales, and the parties hereby submit to the exclusive jurisdiction of the courts of England and Wales. The parties exclude in its entirety the application to these Terms of the United Nations Convention on Contracts for the International Sale of Goods.
Seller shall keep confidential and otherwise protect from disclosure all designs, processes, drawings, specifications, reports, data and other technical or proprietary information and the features of all parts, equipment, tools, gauges, patterns and other items furnished or disclosed to Seller by Buyer. Unless otherwise provided herein or authorized by Buyer in writing, Seller shall use such information and items, and the features thereof, only in the performance of these Terms. Thus, Seller shall not sell or otherwise dispose of as scrap or otherwise any completed or partially completed or defective Goods without defacing or rendering such Goods unsuitable for use. Upon completion, termination or cancellation of the Order, Seller shall, at Seller’s expense, return to Buyer all such information; items and Goods as herein required or as may be subsequently directed by Buyer. Seller is responsible to ensure that all its suppliers shall comply with this provision.
20.Limitation of Liability.
IN NO EVENT SHALL BUYER BE LIABLE TO SELLER OR SELLER’S ASSISTANTS, OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THESE TERMS OR THE ORDER, WHETHER OR NOT BUYER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
The obligations and duties set forth in the following sections of these Terms shall survive the expiration or termination of these Terms or the Order: Sections 12 (Remedies), 13 (Warranties), 15 (Infringement Indemnity) and 17 (Compliance with Laws) through 24 (Import/Export Documentation Indemnification).
Seller acknowledges and agrees that the obligations and promises of Seller under these Terms are of a unique, intellectual nature giving them particular value. Seller’s breach of any of the promises contained in these Terms will result in irreparable and continuing damage to Buyer for which there will be no adequate remedy at law and, in the event of such breach, Buyer will be entitled to seek injunctive relief, or a decree of specific performance.
If any provision of these Terms is or becomes illegal, invalid or unenforceable in any respect, that shall not affect the legality, validity or enforceability of the rest of these Terms, and if any such provision would be legal, valid or enforceable if some part of it were deleted, such provision shall apply with the minimum mollification necessary.
24.Import/Export Documentation Indemnification
A. To the extent Goods furnished hereunder are to be exported, Seller warrants that all import-export documentation, including but not limited to all licenses, copies or packing sheets, invoices (commercial and Customs), and special customs documentation, are accurate and correspond to the actual Goods shipped. Seller shall indemnify and hold Buyer harmless against any and all losses, claims, seizures, forfeitures, fines, penalties, assessments and damages of any kind whatsoever arising out of any violation by Seller of the Applicable Customs Regulations due to Seller’s errors in import/export documentation.
B. Seller also agrees that upon notification by Buyer of a violation, Seller shall immediately provide Buyer with assistance and documentation to rectify Seller’s errors and settle matters related thereto with the Customs authorities. In the event of actual monetary losses by Buyer as a result of the foregoing circumstances, Buyer may elect, at its option, to request direct payment or affect an offset against any amount, due to that time or in the future, by Buyer to Seller.