Precision Graphics – Sales Order Terms and Conditions
1. Acceptance: This Sales Order constitutes Buyer’s (Customer) offer to purchase from Seller (PGI). THE SELLER EXPRESSLY OBJECTS TO AND EXPRESSLY REJECTS ANY PROVISIONS ADDITIONAL TO OR DIFFERENT THAN THE TERMS HEREOF THAT MAY APPEAR IN BUYER’S PURCHASE ORDER, ACKNOWLEDGMENT, CONFIRMATION, INVOICE OR IN ANY OTHER PRIOR OR LATER COMMUNICATION FROM BUYER TO SELLER UNLESS SUCH PROVISION IS EXPRESSLY AGREED TO BY THE SELLER IN WRITING SIGNED BY THE SELLER
2. Sales Order: The Sales Order shall supersede all prior negotiations, discussions, and dealings and shall constitute the entire agreement between Buyer and Seller. No change, modification, rescission, discharge, abandonment, or waiver of these terms and conditions shall be binding unless made in writing and signed on its behalf by a duly authorized representative of Seller and specifically references this Sales Order. No conditions, custom, usage of trade, course of dealing or performance, understanding or agreement purporting to modify, vary, explain, or supplement these terms and conditions shall be binding unless hereafter made in writing and signed by the party to be bound. Mistakes in prices, discounts, specifications, delivery schedules or other terms and any noticeable discrepancies in quantities or sizes are to be reported immediately by Buyer to the Seller and Seller shall immediately remedy such mistakes by refunding incorrect charges to Buyer or correcting such other discrepancies, unless otherwise directed by Buyer.
3. Changes: Buyer reserves the right to change any specifications, versions and or drawings associated with the product on this Sales Order. If such change would materially affect the price or delivery date, Buyer and Seller shall mutually agree upon an equitable adjustment in the price and/or delivery date to reflect the effect of such change. The Buyer is responsible for any material and labor cost the Seller has occurred up to this point. Buyer will suspend performance of this Sales Order while Buyer and Seller are in the process of making such changes and any related adjustments thus having a direct reflection on the delivery date. The Seller will do everything possible to meet the original agreed upon delivery date. Seller agrees that it will not make any process or manufacturing changes which might affect the performance, characteristics, reliability or life of the Products, or substitute any materials without prior written approval of Buyer.
4. Delivery; Inspection; Rejected Products: If a delivery is not expected to be made on-time, Seller will notify Buyer and will take all reasonable steps at Seller’s own cost to expedite delivery. For all shipments (domestic or international), Buyer will own the Products from Sellers manufacturing facility to Buyer’s named place of delivery. All risk of loss during carriage/transportation shall be the responsibility of Buyer, and the Products will be considered delivered only upon receipt at Buyer’s named place of delivery in conformance with the terms and conditions of the Sales Order. Buyer has no obligation to obtain insurance while the Product is in transit from Seller’s facility to Buyer’s named place of delivery. Seller will use Buyer’s preferred carrier for transporting the Products from Seller’s facility to Buyer’s named place of delivery. Domestic shipments will be freight collect unless otherwise agreed to by Buyer’s corporate logistics department. For international shipments, Seller shall make the Products available for export fully cleared from customs and shall arrange for delivery of the Products to the consolidating hub or to Buyer’s specified carrier’s container yard at the port of shipment. Seller shall obtain all necessary export licenses and authorizations, and shall assume responsibility for all fees and costs associated therewith and with getting the Products ready for loading, including but not limited to export customs clearance and associated documentation fees. Buyer shall pay for the costs of preshipment inspection except when such inspections are required by the country of export. Seller shall obtain all necessary import licenses and authorizations. The Buyer shall assume responsibility for all fees and costs associated with import customs formalities with exceptions of (i) getting Products ready for loading, (i) checking operations, packaging and appropriate marking of the Products and (iii) loading of Products at Seller’s dock, Buyer is responsible for all costs for carriage/transportation from Seller’s facility to Buyer’s named place of delivery. At Buyer’s option and request, Seller will prepay the carriage/transportation costs from Seller’s facility to port of export and add such costs to Buyer’s invoice. Otherwise, all carriage/transportation costs from Seller’s facility to Buyer’s named place of delivery are freight collect.
5. Packaging: All materials shall be suitably packed, marked, loaded and shipped in accordance with the requirements of common carriers. Damage to any material not so packed will be charged to the Seller. No charge shall be made by Seller for packing, boxing, drayage, loading or storage unless otherwise stated on the Purchase order. The Buyer will notify the Seller if the products are rejected due visible damage caused by transportation to the Buyer’s facility. Acceptance of the damaged package can be determined upon further inspection. Evidence of the damage box will be documented prior to the package being opened. 6
6. Material: The Buyer is responsible for all the material associated with this Purchase Order. The Bill of Materials (BOM) provided by the Buyer dictates what part numbers and associated Manufacturers are purchased and used in the assembly of the product. The Seller takes no responsibility for the design or components listed on the products BOM. The Buyer will not deviate from the BOM or an approved substitution list provide by the Buyer. Any excess inventory needed to assembly the Seller’s product will be the responsibility of the Seller. This material will be listed as part of the Sales Order. Any excess inventory that has not been used in six (6) months after final delivery of the product will be shipped to the Buyer and the Buyer will invoiced for the value of the material.
7. Inspection: The Products shall be subject to inspection and testing by the Seller after receipt. Seller shall allow authorized representatives of Buyer (i) to inspect Seller’s facilities at any time during normal business hours, and (ii) to make finished Products or raw material audits and prepare analytical data for quality control purposes with the assistance of Seller’s personnel.
8. Discounts: Any negotiated discounts provided by Seller will be listed on the Sales Order.
9. Terms of Payment: Terms of payment shall be noted on the Sales Order. Normal payment terms are Net30 but can be negotiated on individual Sales Orders. The terms will clearly be specified on the Sales Order. If the terms granted herein contain any discount, the time for earning any such discount shall be computed from the later of the scheduled delivery date. 10
10. Warranty: Seller warrants that, for a period of one (1) year from the date a Product is delivered to Buyer, such Product will be free from any defects in material and workmanship, such Product will be in conformity with any applicable drawings and specifications, and title to such Products shall be unencumbered. Payment for Products will not constitute approval or acceptance of goods or services by Buyer; Buyer’s right of inspection will survive payment. Buyer reserves the right to return, at Seller’s expense, any defective or nonconforming Products or shipments received contrary to this Purchase Order. Seller will have the right to correct or replace the rejected items in a reasonable amount of time. All costs in connection with or as a result of such defective or nonconforming Products, including, without limitation, cost to transport the Products from Buyer to Seller and return shipment to Buyer, will be borne by Seller. This warranty will then continue as to the corrected or replaced Products for one (1) year after the date of delivery of the corrected or replaced Products to Buyer. If Seller fails to repair or replace the Product within the reasonable time period herein, Buyer may then repair or replace the defective or nonconforming goods at Seller’s expense. Rejected or nonconforming Products will not be deemed delivered on-time unless corrected or replaced Products are delivered within the on-time period applicable to this Sales Order.
11. Compliance with Applicable Laws: Buyer represents, warrants and covenants that all of the Products, merchandise, and materials delivered and/or services rendered hereunder will be and will have been produced and/or provided in compliance with all applicable laws, rules, regulations, orders, treaties and other requirements of federal, state and local governments and agencies thereof, and that Seller, Seller’s business and all property used therein do and will comply with all applicable laws, rules, regulations, orders, treaties and other requirements of federal, state and local governments and agencies. If any of the Products are purchased for incorporation into products sold under a government contract or subcontract, the terms required to be inserted by that contract or subcontract shall be deemed to apply to this Sales Order. All rating or certification requirements specified in such government contract or subcontract or of which Seller has knowledge shall be complied with. Seller agrees to furnish Buyer a certificate of compliance with any such laws and certification requirements in such form as may be requested by Buyer. Seller shall, at its sole cost, secure and maintain all necessary licenses, permits, authorizations or other approvals required for the operation of Seller’s business or any property used therein, or as necessary for Seller’s performance hereunder. Seller shall immediately notify Buyer in the event that Seller is not in compliance with any provision of this Section.
12. Intellectual Property: Seller warrants that the Products and the sale and use of them will not infringe any United States or foreign patents, trademarks, copyrights, trade secrets or any other form of intellectual property, and Seller acknowledges that Buyer’s patents, trademarks, copyrights, trade secrets or any other form of intellectual property that Buyer provides to Seller are Buyer’s exclusive property and Seller disclaims all rights in same. Where payment is made for experimental, developmental, or research work, as such, to be performed in accordance with special requirements of Buyer, Seller agrees to disclose and on request to assign to Buyer each invention, property right, confidential process or know-how, and trade secret resulting therefrom or other form of intellectual property and Seller shall disclaim all rights in same. All drawings, art work, special products, materials, information or data furnished by Buyer and all intellectual property resulting from this Sales Order (as referenced in the foregoing sentence) are Buyer’s exclusive property, shall be used by Seller only for Buyer’s work, shall be deemed Buyer’s Proprietary Information as defined in Section 11 below, and shall be kept confidential, pursuant to the terms of Section 11 below, and shall be returned promptly at Buyer’s request. Buyer will market, distribute and/or sell the Products under its own trademark and trade name.
13. Proprietary Information: Seller agrees that Seller will keep confidential all information disclosed to Seller by Buyer or any of Buyer’s affiliates in connection with this Purchase Order (“Proprietary Information”) and will disclose Proprietary Information only to those of its employees as will be directly concerned with performance under this Purchase Order. Seller agrees that it will not disclose Proprietary Information to any other person or entity without the express, prior written consent of Buyer. Seller agrees that it will protect the confidentiality of Proprietary Information with the same degree of care with which it protects its own proprietary information, but with no less than reasonable care, and will return all copies (in any medium recorded) of Proprietary Information to Buyer immediately upon written request. The parties agree that Proprietary Information shall be considered commercial secrets qualified for protection under applicable law. Notwithstanding the foregoing, Seller may disclose Proprietary Information that must be disclosed to any government, any agency or department thereof, or any stock exchange to the extent required by law, provided Seller shall immediately notify Buyer of such requirement and the terms thereof prior to such disclosure so that Buyer may seek an appropriate protective agreement or order prior to the disclosure. The foregoing obligations will survive termination of this Sales Order and will remain binding on Seller, its respective affiliates, successors and assigns forever. This Sales Order is designated as Proprietary Information subject to this Section.
14. Indemnity: Buyer will indemnify and hold harmless the Seller and its successors and assigns against any and all suits, losses, damages, liabilities, costs and expenses (including reasonable attorneys’ fees and other costs of defending any action) (“Losses”) which such parties may sustain or incur (a) in connection with a breach of any representation, warranty, or undertaking made by Buyer in this Sales Order or such parties’ enforcement of this Sales Order, or (b) in connection with the design, development, manufacture, distribution, sale, use, or repair of the Products, whether the claim be based upon a theory of breach of contract or warranty, negligence, strict liability, other tort, infringement, misappropriation or any other legal theory or (c) as a result of any suit, claim, or demand under any environmental, health, safety or other laws, rules, regulations or requirements in connection with the manufacture, distribution, transportation, storage, use or disposal of the Products or of raw materials by Buyer. If Buyer’s performance requires Seller, its employees, agents or representatives to perform services or labor in the plants or on the premises of Seller, its agents, customers, or users, Buyer agrees to indemnify and hold harmless Seller against all suits, losses, claims, damages, liabilities, costs and expenses for injury or damage to person or property arising out of such performance. Buyer agrees that it will, when requested and given reasonable notice of the pendency of any such suits, claims or demands, assume the defense of Seller and their respective successors and assigns against any such suits, claims or demands. Additionally, Seller expressly and specifically waives all immunity that may be afforded Seller under the workers’ compensation laws of any state or jurisdiction.
15. Financial Information: Should Seller have concerns about Buyers financial condition and/or ability to pay against open Sales Orders the Buyer will request and obtain information necessary to address said concerns.
16. Cancellation, Termination and Suspension: Buyer reserves the right to cancel all or any part of the undelivered portion of this Purchase Order. Upon the termination of this agreement by the Buyer, the Buyer is financially responsible for all labor and material cost associated with this Sales Order. Seller will not be responsible for any specific cancellation fees or charges. Notwithstanding anything to the contrary in this Sales Order, upon termination, cancellation or expiration of this Sales Order, Seller shall immediately cease use of any of Buyer’s intellectual property and or trade secrets and shall have no further right to use the same.