PURCHASE ORDER TERMS AND CONDITIONS | IMPORTANT – READ CAREFULLY
ACCEPTANCE: PURCHASE ORDER CONSTITUTES ENTIRE AGREEMENT – the purchase order (“Order”) constitutes an offer by Armstrong AccuSpec, LLC (“AccuSpec”) and may be accepted by Seller (or Contractor where applicable) only in accordance with the terms hereof. Any acceptance herein of an offer of Seller, or any confirmation herein of a prior agreement between AccuSpec and Seller, is expressly made conditional on Seller’s assent to the additional or different terms contained herein. This Order may be accepted by Seller by commencement of work, shipment of goods, or furnishing of services hereunder. Dispatch of Seller’s acknowledgement form or other written document will also act as an acceptance if it agrees with this Order with respect to the description, amount, price and time of delivery of the goods or services ordered. Notwithstanding any waiver in any instance, or any oral agreement, or any instructions, terms and conditions that may be contained in any quotation, acknowledgement, invoice or other written document of Seller, no addition to, waiver for the future or modification of, any of the provisions herein contained shall be of any force or effect unless made in writing and executed by AccuSpec. AccuSpec requires only new, unused material be supplied pursuant to any Order. NCNR products must be identified and acknowledged at time of order. The date shown in the "Due Date" column of the Order is the required dock date. “NCNR” means non-cancellable and non-returnable. For the avoidance of doubt, NCNR materials include, but are not limited to, any component or other material which Seller has ordered but which AccuSpec has not yet taken delivery of, and any component or other material in Seller’s inventory which cannot be returned to the vendor.
CHANGES – AccuSpec shall have the right at any time to make changes in this Order by written notice to Seller, and Seller agrees to comply with such changes. If such changes cause a material increase or decrease in Seller’s costs or time of performance of this Order, Seller shall notify AccuSpec immediately and negotiate an adjustment. Seller is required to notify AccuSpec immediately of changes in quantity, EOL product/material and/or process, change of suppliers or manufacturing facility location. Permission to sub-contract shall be permitted only upon written authorization from AccuSpec and Seller shall be obligated to flow down all requirements of the Order and the terms and conditions described herein to any subcontractor. Seller shall not substitute or utilize alternative manufacturers without written authorization from AccuSpec’s purchasing dept.
PRICE – If this Order is not priced it shall not be filled at prices higher than those last quoted and charged AccuSpec for the same articles. Charges for boxing, packaging or cartage will not be allowed or paid by AccuSpec unless otherwise expressly stated on this Order. Goods are purchased on a delivered basis. An element of freight is included in the purchase price of the materials. All freight charges are to be paid by the supplier to the carrier without further liability to Armstrong AccuSpec, LLC, its divisions, parents, subsidiaries or affiliates, or its customer and/or consignee.
SHIPPING – AccuSpec reserves the right to route all shipments. Delays in shipment shall be reported immediately by Seller to AccuSpec. Every package or other shipping unit, bill of lading, shipping memorandum and invoice must be marked with AccuSpec’s Purchase Order Number. Seller’s serial numbers must be shown on all shipping papers and invoices where applicable. Seller must notify AccuSpec of any known quality defect or nonconformance prior to shipment. All shipments shall be delivered not more than 5 days early and 0 days late.
TIME OF THE ESSENCE – Time of shipment and of other aspects of performance hereunder is of the essence of this agreement
DELIVERY/TITLE – Unless otherwise agreed, delivery shall be f.o.b. point of destination and title shall pass to AccuSpec upon acceptance at the final delivery point. Risk of damages or loss following shipment and prior to acceptance by AccuSpec shall be the responsibility of Seller.
RIGHT OF INSPECTION AND REJECTION – Material and equipment supplied by Seller shall be received subject to AccuSpec’s inspection and approval within a reasonable time after delivery, notwithstanding prior payment. If specifications or warranties are not met, material and equipment may be returned at Seller’s expense. No material or equipment returned to Seller as defective shall be replaced except upon AccuSpec’s formal authorization. Acceptance of this order certifies that the Seller and its premises meet all applicable governmental and safety constraints and Seller consents and grants permission to conduct on-site inspection, upon reasonable notice, by AccuSpec, its customers, regulatory authorities or representatives. This inspection does not and will not constitute evidence of effective control of quality by Seller or its subcontractors and verification by AccuSpec, its customers or representatives shall not absolve Seller of the responsibility to provide products acceptable to AccuSpec nor shall it preclude subsequent rejection by AccuSpec. If any materials on this purchase order are found to be counterfeit or defective in material, workmanship, or do not conform to the requirements of this purchase order AccuSpec reserves the right to reject and/or impound any material and request a return material authorization (RMA). If an RMA is not provided to AccuSpec within 48 hours of request the AccuSpec has the option of returning the material without an RMA. Upon return of material a credit against the original received material on the purchase order will be taken by AccuSpec. Seller shall not replace rejected materials without prior consent from AccuSpec.
ASSIGNMENT – Neither this Order nor any interest therein nor any claim arising hereunder shall be transferred or assigned by Seller without the prior written consent of AccuSpec. AccuSpec may transfer or assign the benefits of this agreement, in whole or in part, including without limitation the Seller’s warranty, without the approval of Seller.
GOVERNING LAW – This Order, and the rights and obligations of the parties thereto, shall be determined in accordance with the laws of the State wherein the equipment or material shall be installed, or wherein the work shall be performed herein.
WARRANTY – Seller warrants that all goods or services furnished pursuant to this Order will be free from defects in material and workmanship and will be in conformity with the requirements of the Order, including drawings and specifications, if any, and reasonably fit for the purpose disclosed in this Order or in such drawings and specifications, and Seller further warrants that such goods or services will be merchantable and fit for the purpose for which they are sold, and where design is Seller’s responsibility, will be free from defects in design. AccuSpec’s approval of Seller’s design or material shall not be construed to relieve Seller of the warranties set forth herein. Without limitation of any rights which AccuSpec may have at law by reason of any breach of warranty, goods which are not as warranted may at any time within twelve (12) months after delivery be returned at Seller’s expense. AccuSpec at its option may require Seller either to replace such goods at no increase in price (Seller must pay all repacking, transportation and handling charges both ways) or to refund the purchase price and any charges in connection therewith.
INVOICES – All invoices shall be mailed or emailed to the Accounts Payable Department at its office or email address as indicated on the face of this Order and will state AccuSpec’s Purchase Order Number clearly on the invoice. Invoice and duplicates shall be rendered for each order or for each shipment if more than one is made on an order. No invoice shall be delivered by Seller to any employee or AccuSpec. An itemized delivery ticket, bearing AccuSpec’s Purchase Order Number as shown hereon, must be left with the goods to insure their receipt. If delivery is made by carrier, an itemized delivery ticket must be attached to the package or other shipping unit. The payment discount period will date from receipt of the invoice and not from the date of the invoice. In case of errors on an invoice, the payment discount period will date from the receipt of corrected invoices. Seller shall use the lowest published freight rates and any excess transportation charges incurred. Any transportation charges that deviate from the published tariff rates are to be borne by the Seller.
PATENT INDEMNITY – Seller agrees to indemnify, save harmless and defend AccuSpec from and against any and all suits, claims, damages, costs, and attorney’s fees arising out of or in connection with an infringement or claimed infringement of any United States patent, trademark or copyright in the manufacture, use or sale of the equipment or materials furnished under this Order. In case said equipment or material is in such suit, or in final adjudication elsewhere, held to constitute infringement, and the use thereof is enjoined, Seller shall, at its own expense, either procure for AccuSpec the right to continue using said equipment or material, or at the option of AccuSpec either replace same with equally efficient non-infringing equipment or material, or modify it without impairing its efficiency so it becomes non-infringing, or remove said equipment or material and refund the purchase price and the transportation and installation costs thereof.
INDEMNITY AND INSURANCE – Seller shall defend, indemnify and hold harmless AccuSpec from any claims, suits, judgments, fees and costs (including attorney’s fees) based on or arising out of the resale or use of the products purchased hereunder or death, personal injury, or damage to property caused by the products purchased under this Order. Seller agrees to name AccuSpec as an additional insured on products liability insurance with limits per occurrence of at least $1,000,000 personal injury and $1,000,000 for property damage. Evidence of such coverage, in the form of a Certificate of Insurance containing a Broad Form of Vendor’s Coverage and providing for thirty (30) days notice to International Paper prior to cancellation, shall be sent to AccuSpec not later than seven (7) days following Seller’s acceptance of this Order.
COMPLIANCE WITH LAWS – Seller, in the performance of this Order, shall comply with the provisions of the Fair Labor Standards Act, as amended, as well as the Regulations and Orders of the Department of Labor issued thereunder, Executive Order No. 11246 as amended, 29 CFR 470, 41 CFR 60-1, 60-250, 60-741, the provisions of the Occupational Safety and Health Act of 1970, and all other applicable Federal, state, and local laws, regulations, rules and ordinances, including but not limited to those dealing with the protection of the environment. AccuSpec reserves the right to require any Seller to be ISO9000 certified and AccuSpec shall be entitled to terminate any Order without any further liability to Seller in the event that any Seller that is required to be ISO9000 certified is not in compliance with or has lost such certification.
CHEMICAL SUBSTANCE IDENTIFICATION – By acceptance of this Order, Seller certifies that any chemical substance(s), e.g., material safety data sheets have been provided to AccuSpec, pursuant to all federal, state or local laws and regulations.
GOVERNMENT CONTRACTS – In the event that the goods ordered herein are to be used in whole or in part for the performance of government contracts and where the dollar value of said goods exceeds, or may in any one year exceed $50,000, the Seller further agrees that in connection with the performance of work, under this contract, Seller (subcontractor) agrees not to discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin or disability. The aforesaid provision shall include, but not be limited to, the following: Employment, upgrading, demotion, or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. Seller (subcontractor) agrees to post hereafter in conspicuous places, available to employees and applicants for employment and notices setting forth the provisions of this nondiscrimination clause.
CONFLICT MINERALS - THE CONFLICT MINERALS RULE REQUIRES COMPANIES THAT ARE PUBLICLY TRADED ON THE U.S. SECURITIES (STOCK) EXCHANGES AND THAT MANUFACTURE PRODUCT WHICH CONTAINS TIN, TANTALUM, TUNGSTEN AND OR GOLD TO DISCLOSE THE COMPANIES' USE OF THESE MINERALS, WHICH ARE ALSO REFERRED TO AS CONFLICT MINERALS. IN ADDITION THESE COMPANIES MUST CONDUCT DUE DILIGENCE ON THE ORIGIN OF THE CONFLICT MINERALS AND IMPLEMENT MEASURES TO MINIMIZE THE RISK OF THE MINERALS ORIGINATING FROM A SOURCE IN THE DEMOCRATIC REPUBLIC OF THE CONGO (DRC) OR AN ADJOINING COUNTRY THAT HAS CONTRIBUTED TO THE FUNDING FOR ARMED GROUPS THAT ARE COMMITTING HUMAN RIGHTS ABUSES IN THE EASTERN DRC. By acceptance of this Order, Seller represents that it has in place procedures reasonably designed to determine whether Conflict Minerals contained in the products, goods and services described in the Order originated in the DRC or adjoining countries, or are from recycled or scrap sources. Seller warrants that, except for Conflict Minerals that are from recycled or scrap sources, the products described in the Order either (a) do not contain Conflict Minerals, (b) do not contain Conflict Minerals that originated from the DRC or adjoining countries; or (c) do not contain Conflict Minerals that directly or indirectly benefit or finance armed groups in the DRC or adjoining countries. Conflict Minerals has the same meaning as defined in Section 1502(e)(4) of the Dodd-Frank Wall Street Reform and Consumer Protection Act and generally includes columbite-tantalite, also known as coltan (the metal ore from which tantalum is extracted); cassiterite (the metal ore from which tin is extracted); wolframite (the metal ore from which tungsten is extracted); and gold.
TERMINATION – AccuSpec, by written notice, may terminate this order, in whole or in part without any further liability or obligation to Seller. In the event this order is terminated as a result of Seller’s default, the Seller shall be liable for all damages allowed in law or equity, including the excess cost of re-procuring similar items. If this order is terminated for the convenience of AccuSpec, Seller will be compensated to the extent that items have been accepted by AccuSpec prior to the effective date of termination. Other than to this extent, AccuSpec shall not be liable to Seller for any damages on account of its failure to accept all of the items ordered. Sellers are required to retain all records related to such Orders for a minimum of 15 years, including without limitation all PO's, COC's, manufacturer's data and date codes.
CONFIDENTIALITY/TRADE SECRETS – All specifications, data and other information furnished by AccuSpec or its agents, to Seller in connection with this order remain the exclusive intellectual property of AccuSpec and shall be treated by the seller as proprietary and shall not be disclosed or used, outside the limitation of this order, without prior written approval of the Material Manager. In addition, the purchase of the Seller’s product does not authorize the Seller to use the name of or make reference to AccuSpec for any purpose in any releases for public or private dissemination, nor shall the Seller divulge or use in any advertisement or publication any specifications, data, or other information pertaining to or relating to this usage without prior written approval of the Material Manager or other authorized Director of the Company.
All required documentation and documentation flow-down from AccuSpec Electronics will be provided by Seller.
All suppliers will submit a Certificate of Conformance (C of C) with each shipment.
All International Shipments will have a Commercial Invoice sent with each shipment, along with a packing list and C of C.
Supplier will retain all records of transactions, purchases to manufacturer’s on AccuSpec’s behalf, and associated records for a period not less than seven (7) years, or as required by law.
For any ITAR required purchases, Seller guarantees that proper security and restrictions on access to documentation is applied to all facets of this transaction.
Seller shall grant AccuSpec and AccuSpec’s agents all Right of Access in any event in which the Organization may deem necessary.
Seller shall immediately notify AccuSpec and organization of any changes to product, process, manufacturing site, recall, or other non-conformances which may affect product integrity in any way.
***ADDITIONAL PURCHASE ORDER TERMS AND CONDITIONS FOR FABRICATED CIRCUIT BOARDS***
THE COUNTRY OF ORIGIN MUST APPEAR ON ALL PAPERWORK.
UPON ACCEPTANCE OF A PURCHASE ORDER ALL WORKING FILES WILL BECOME THE PROPERTY OF ACCUSPEC.
A SOLDER SAMPLE IS REQUIRED FOR ALL DATE CODES.
ALL DATES REFERENCED ARE "IN HOUSE" DATES.
NO BOARDS WILL BE ACCEPTED HAVING A DATE CODE OLDER THAN 1 YEAR FROM DATE OF MANUFACTURE. BOARDS OLDER THAN 1 YEAR MUST BE APPROVED BY ACCUSPEC IN WRITING.
PARTS WILL BE ACCEPTED ONLY AFTER FULL INSPECTION AND APPROVAL BY ACCUSPEC.
ALL PARTS MUST MEET THE SPECIFICATIONS AND TOLERANCES SET FORTH IN THE CURRENT SPECIFICATIONS, INCLUDING WITHOUT LIMITATION ALL ITEM PRINTS AND DRAWINGS. ANY DEVIATIONS MUST HAVE WRITTEN PRIOR APPROVAL FROM ACCUSPEC.
BOARDS ARE TO BE ELECTRICALLY TESTED AND STAMPED WITH AN "ET" STAMP (LOCATION TO BE DETERMINED BY THE BOARD HOUSE) BUT SUCH STAMP WILL NOT COVER ANY PADS OR PLATED AREAS. IF NECESSARY, THE “ET “ STAMP MAY BE PLACED ON ONE OF THE RAILS OF THE PCB ARRAY.
TESTING SHOULD BE BASED ON THE CUSTOMER SUPPLIED NET LIST. IF ONE WAS NOT PROVIDED THEN THE BOARD HOUSE IS TO GENERATE A NET LIST FROM THE GERBER FILES AND SEND A COPY TO ACCUSPEC.
MICRO-SECTIONS AND NEW LOT CODES ARE REQUIRED ON ALL FIRST BUILDS. TEST COUPONS ON CONTROLLED IMPEDENCE ARE ALSO REQUIRED.
ALL PCB'S MUST HAVE A DATE/LOT CODE STAMPED OR SILKSCREENED ON EACH PC BOARD.
THE WORKING GERBERS MUST BE SUPPLIED FOR NEW PCB'S AND PCB'S WITH A REVISION LEVEL CHANGE PRIOR TO DELIVERY OF THE BOARDS TO ACCUSPEC.
A CERTIFICATE OF COMPLIANCE MUST BE INCLIDED WITH ALL SHIPMENTS TO ACCUSPEC.
ALL STATIS SENSITIVE PARTS MUST BE PACKAGED IN ANTISTATIC PACKAGING.
PACKAGING MUST INCLUDE DESICCANT AND MOISTURE INDICATOR CARD.
Purchaser Terms and Conditions.
TERMS AND CONDITIONS APPLICABLE TO ACCUSPEC’S PROVISION OF MANUFACTURING SERVICES AND PRODUCTS TO CUSTOMER
Supply Chain Commitment
Turnkey Materials: CUSTOMER’s submission of purchase orders to AccuSpec will result in AccuSpec purchasing, on behalf of the CUSTOMER, raw materials and components for the manufacture of the Product(s) ordered. While turnkey materials will reside in AccuSpec inventory, the CUSTOMER is ultimately financially liable for the turnkey materials purchased on Customers behalf. CUSTOMER agrees to purchase such materials from AccuSpec when the following condition(s) apply:
Cancellation of products(s) ordered. See Section C
Turnkey materials in AccuSpec inventory for CUSTOMER that no longer are associated with the manufacture of any product.
Turnkey materials in AccuSpec inventory for CUSTOMER that are in excess of current demand due to MOQ, NCNR, and LLTC.
Armstrong AccuSpec, LLC ("AccuSpec") will assume the liability for storing these components in an ESD safe environment in accordance with generally acceptable industry practices. AccuSpec will present, and CUSTOMER will purchase inventories from AccuSpec, on a quarterly basis, those inventories as described above in A, B, and C above.
Consigned Materials: Upon reasonable notice to AccuSpec and the execution of an appropriate agreement, CUSTOMER may supply consigned materials to AccuSpec. CUSTOMER agrees that all consigned materials will be delivered to AccuSpec in sufficient time and in sufficient quantities, taking into account customary attrition levels, and standard production set-up practices, to allow AccuSpec to meet scheduled delivery dates for the applicable Product(s). In the event CUSTOMER is not able to provide consigned materials in sufficient time and in sufficient quantities, CUSTOMER shall, at its discretion, either allow AccuSpec to procure such materials on a turnkey basis in order to meet delivery dates or allow AccuSpec to ship Product without the inclusion of such materials. CUSTOMER agrees that all consigned materials shall be in good condition, meet Product(s) specifications, be packaged in a readily usable format, does not result in additional setup or production time, and will be free of any defects or deficiencies.
NCNR: CUSTOMER commits to pay AccuSpec for all non-cancelable/non-returnable (“NCNR”) components purchased by AccuSpec to support CUSTOMER orders or forecast. This payment would be due and payable with invoice terms of net thirty (30) days. AccuSpec will provide NCNR Inventory Purchase Authorization to the CUSTOMER for approval prior to placing an order for any NCNR component or should any component become an NCNR component during the order fulfillment process. This payment will be for the AccuSpec’s cost of the components plus a five (5%) percent material handling charge.
Excess Inventory: CUSTOMER commits to pay AccuSpec for all minimum material requirements, excess inventory and residual materials (collectively “minimum buy” or “minimum buys”) of components procured to fulfill the CUSTOMER’s purchase orders.
Inventory: Upon CUSTOMER’s written request, AccuSpec shall, within forty-eight (48) hours of such request, provide the CUSTOMER with a detailed report of the total value of components both in the AccuSpec’s inventory and on order with AccuSpec’s suppliers.
SBR: CUSTOMER and AccuSpec will meet for supplier business reviews (“QBR”), twice annually, to discuss delivery, quality issues, inventory levels and any other matters that are materially related to the fulfillment of the immediate Agreement. As part of the SBR, AccuSpec shall provide CUSTOMER with a summary of excess inventory levels.
Engineering Changes: Engineering changes can impact several key areas of contract manufacturing including material, labor and lost opportunity. In the case of a design/engineering change, CUSTOMER is responsible for payment to AccuSpec for: (i) the full cost of all work-in-process and finished goods if the product is deemed to be unusable; (ii) the cost to rework all work-in-process and finished goods if modifications to the product can be performed; (iii) all excess/obsolete inventory resulting from the change.
Costs for Changes: CUSTOMER will be billed at the cost of components plus a five (5%) percent material handling charge. AccuSpec will take all reasonable commercial efforts to return components and minimize its financial obligation. AccuSpec reserves the right to re-quote any affected product in work in process and/or future backlog which may be affected by delivery dates, and increases or decreases in material and/or labor costs associated with design and engineering changes.
Order Cancellation: Should CUSTOMER cancel any portion of an order placed with AccuSpec, CUSTOMER commits to purchase from and pay AccuSpec for: (i) all product(s) delivered to CUSTOMER and/or in transit, plus and product(s) in AccuSpec’ finished goods inventory prior to, and including, the effective date of cancellation, at the unit prices applicable to such Product(s); (ii) all “work-in-process” as of the effective date of cancellation based upon the percentage of completion multiplied by the applicable unit price of the product; (iii) for the cost plus profit associated with AccuSpec material inventory and materials on the order which cannot be canceled or returned; (iv) any restocking charges, “bill-backs”, cancellation charges and other charges incurred by AccuSpec for components and materials, plus a five percent (5%) handling fee.
Stock and On Hand Finished Goods: AccuSpec and CUSTOMER mutually agree to an adequate stocking of inventory or KanBan size (“Minimum Stocking Inventory”) of designated Products (“Designated Products”) that are on hand and available for shipment to Customer.
Minimum Stock: In the event that (i) CUSTOMER does not purchase an amount of Designated Products equivalent to the Minimum Stocking Inventory of the Designated Products within sixty (60) days of production of such Products by AccuSpec, and (ii) provided, AccuSpec has on hand and available for shipment to CUSTOMER an amount greater than the Minimum Stocking Inventory level of the Designated Products, then on the sixty first (61st) day or later, CUSTOMER will, at AccuSpec’s request, issue a purchase order for the amount of the Designated Products necessary to reduce AccuSpec’s remaining inventory that is on hand of the Designated Products to a level of the Minimum Stocking Inventory.
Forecasting: CUSTOMER will provide AccuSpec with a twelve (12) month rolling forecast of CUSTOMER’s purchase requirements broken down to a monthly purchase amount. The forecast shall be considered a binding commitment to purchase Product(s) on the part of CUSTOMER. Liability for material and components needed to support any forecast is set forth above in Section A of this Agreement.
Shipping Terms: Except for Products that are expressly priced FCA Destination, ACCUSPEC shall ship Products to CUSTOMER FCA ACCUSPEC’s shipping dock, collect, using account numbers furnished by CUSTOMER.
Price: Unless otherwise stated in the bid or quotation delivered by AccuSpec, prices are FCA AccuSpec shipping dock (Incoterms 2010) and exclusive of freight costs, taxes and duties, and are subject to periodic review. Any freight costs, taxes or duties applicable to the sale of the Product(s) by AccuSpec to CUSTOMER shall be paid by Customer. CUSTOMER shall make all payments due to AccuSpec not later than 30 days following the date of the invoice. Late payments shall be subject to a late payment charge equal to 5.00% of the past due amount, which will be charged and shall accrue monthly until paid in full.
Purchase Price Variances (“PPV”): If PPV is incurred by AccuSpec due to supplier price increases, long lead-time challenges, approved “broker buys” or any other causes, CUSTOMER will be responsible to pay AccuSpec on an individual occurrence basis or agree to have the cost increases rolled into the cost of the product(s). CUSTOMER may request prior approval of all PPV’s prior to AccuSpec making a commitment to a supplier in respect of the products being manufactured for CUSTOMER.
Rescheduling or Quantity Changes: In the event CUSTOMER desires to make changes to quantity or shipment date for any order outside of the thirty day period beginning on the date CUSTOMER’s order is accepted by AccuSpec, CUSTOMER shall obtain AccuSpec’s consent, which shall not be unreasonably withheld, conditioned or delayed. If AccuSpec agrees to make any or all of the changes requested by CUSTOMER, CUSTOMER agrees that it may be subject to an inventory carrying charge for both work in process and on hand inventory. CUSTOMER may also be liable for any extra costs to meet reschedules, including, but not limited to, expedited component procurement. AccuSpec agrees that it shall inform CUSTOMER in writing regarding its acceptance of the changes and any foreseeable costs known at the time of the acceptance.
Warranty: AccuSpec warrants that, for a period of 360 days from the date of manufacture of a product, the product will be free from defects in workmanship. AccuSpec shall, at its option and at its expense (and as Customers’ sole and exclusive remedy for breach of any warranty), repair, replace or issue a credit for a product found defective during the warranty period. In addition, AccuSpec will pass on to CUSTOMER all third party vendors’ and manufacturers’ component warranties to the extent that they are transferable but will not independently warrant any such components. All warranty obligations will cease upon the expiration of the warranty period set forth above. ALL CLAIMS FOR BREACH OF WARRANTY MUST BE RECEIVED BY ACCUSPEC NO LATER THAN TEN (10) CALENDAR DAYS AFTER THE EXPIRATION OF THE 360 DAY WARRANTY PERIOD. For all such Claims, Customer must promptly notify AccuSpec of any defects and, after receipt of prior written authorization from AccuSpec, returns such Product to the place requested by AccuSpec, freight prepaid, and thereupon AccuSpec finds such Product to be defective. Customer must pay all related costs of repair or replacement, including removal, installation and reinstallation costs. AccuSpecs' personnel must be granted access to inspect the Products claimed to be defective at the site of their installation or use.
Exclusions from Warranty: This warranty does not include products that have defects or failures resulting from (a) Customer's design of products including, but not limited to, design functionality failures, specification inadequacies, failures relating to the functioning of products in the manner for the intended purpose or in any the specific environment; (b) accident, disaster, neglect, abuse, misuse, improper handling, testing, storage or installation including improper handling in accordance with static sensitive electronic device handling requirements (other than improper handling, testing or storage by AccuSpec); (c) alterations, modifications or repairs by CUSTOMER or third parties or (d) defective test equipment or test software provided by CUSTOMER. CUSTOMER bears all design responsibility for the product, including any alleged violation of any parties’ intellectual property or confidentiality.
Remedy: THE SOLE AND EXCLUSIVE REMEDY UNDER THIS WARRANTY SHALL BE THE REPAIR, REPLACEMENT OR CREDIT FOR DEFECTS AS STATED ABOVE. THIS WARRANTY IS THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY ACCUSPEC AND IS IN LIEU OF ANY OTHER WARRANTIES EITHER EXPRESS OR IMPLIED. ACCUSPEC DOES NOT MAKE ANY WARRANTIES REGARDING MERCHANTABILITY, NON-INFRINGEMENT, COMPLIANCE WITH RESTRICTION ON THE USE OF CERTAIN HAZARDOUS SUBSTANCES (“ROHS”) (OR SIMILAR LEGISLATION), OR FITNESS FOR A PARTICULAR PURPOSE, AND SPECIFICALLY DISCLAIMS ANY SUCH WARRANTY, EXPRESS OR IMPLIED. In no event shall AccuSpec be liable on any Claim including, but not limited to, any claim of negligence, breach of performance, breach of terms or conditions, defective design, defective manufacture, strict liability arising from the sale, use, delivery, installation, repair or technical direction or advice concerning AccuSpecs' products except as to the repair or replacement of defective products pursuant to exclusive limited warranty as provided herein.
AccuSpec’s Indemnification: AccuSpec shall indemnify, defend, and hold CUSTOMER and CUSTOMER’s affiliates, shareholders, directors, officers, employees, contractors, agents and other representatives (the “Customer-Indemnified Parties”) harmless from all third party demands, claims, actions, causes of action, proceedings, suits, assessments, losses, damages, liabilities, settlements, judgments, fines, penalties, interest, costs and expenses (including fees and disbursements of counsel) to the extent any of the foregoing is caused by a defective product (each a “Claim,” and, collectively “Claims”) based upon personal injury or death or injury to property (other than damage to the product itself, which is handled in accordance with Section G) to the extent any of the foregoing is caused by the gross negligence or willful misconduct of AccuSpec or its officers, employees, subcontractors or agents, and/or arising from or relating to any defective workmanship solely arising from or in connection with AccuSpec’s manufacture of the Product.
CUSTOMER’s Indemnification: CUSTOMER shall indemnify, defend, and hold AccuSpec and AccuSpec’s affiliates, shareholders, directors, officers, employees, contractors, agents and other representatives (the “AccuSpec-Indemnified Parties”) harmless from all third party Claims, of every kind, based upon personal injury or death or injury to property, by the negligent or willful acts or omissions of CUSTOMER or its officers, employees, subcontractors or agents, and/or arising from or relating to any actual, threatened or alleged infringement or misappropriation of any patent, trademark, mask work, copyright, trade secret or any actual, threatened or alleged violation of any other intellectual property rights arising from or in connection with the products.
Indemnification Procedure: A Party entitled to indemnification pursuant to this Section (the "Indemnitee") shall promptly notify the other Party (the "Indemnitor") in writing of any Claims covered by this indemnity. Promptly after receipt of such notice, the Indemnitor shall assume the defense of such Claim with counsel reasonably satisfactory to the Indemnitee. If the Indemnitor fails, within a reasonable time after receipt of such notice, to assume the defense with counsel reasonably satisfactory to the Indemnitee or, if in the reasonable judgment of the Indemnitee, a direct or indirect conflict of interest exists between the Parties with respect to the Claim, the Indemnitee shall have the right to undertake the defense, compromise and settlement of such Claim for the account and at the expense of the Indemnitor. Notwithstanding the foregoing, if the Indemnitee in its sole judgment so elects, the Indemnitee may also participate in the defense of such action by employing counsel at its expense, without waiving the Indemnitor's obligation to indemnify and defend. The Indemnitor shall not compromise any Claim (or portions thereof) or consent to the entry of any judgment without an unconditional release of all liability of the Indemnitee as to each claimant or plaintiff.
Limitation of Liability: IN NO EVENT SHALL ACCUSPEC BE LIABLE TO THE CUSTOMER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES, OR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA OR PROFITS, PRODUCTION DOWNTIME OR PLANT SHUT DOWNS, LOSS OF RAW MATERIALS, ENERGY, UTILITY, LABOR, CAPITAL LOSSES OR DAMAGE TO PROPERTY, CLAIMS OF THIRD PARTIES, INCLUDING PERSONAL INJURY OR DEATH ON ACCOUNT OF USE OF THE PRODUCTS OR FAILURE OF ACCUSPEC TO WARN AGAINST OR INSTRUCT ON, OR ADEQUATELY WARN AGAINST OR INSTRUCT ON EVEN IF SUCH OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FOR THE PURPOSE OF THIS SECTION, BOTH LOST PROFITS AND DAMAGES RESULTING FROM VALUE ADDED TO THE PRODUCT BY CUSTOMER SHALL BE CONSIDERED CONSEQUENTIAL DAMAGES. Notwithstanding the foregoing, the provisions of this Section shall not apply to limit (i) Customer’s obligation for termination payments in accordance with Section 10, (ii) a Party’s obligation to indemnify the other Party against any third party Claim for personal injury or property damage, or (iii) actual damages required to be paid to any third party as a result of any infringement claim. In the event that Customer successfully asserts a Claim for monetary damages or payment, then whatever the legal or equitable basis for the Customer's Claim, AccuSpec's total liability from any cause whatsoever (except liability from personal injury caused by AccuSpecs' gross negligence), whether arising under contract, warranty, tort (including negligence), strict liability, products liability or any other theory of liability, will be limited to the lesser of Customer's actual direct damages or the price actually paid by Customer to AccuSpec for the Products that are the subject of Customer's claim. All claims against AccuSpec must be brought within one year after the cause of action arises, and Customer expressly waives any longer statute of limitations.
Termination for Cause: Either Party may terminate this Agreement for default if the other Party materially breaches this Agreement; provided, however, no termination right shall accrue until thirty (30) days after the defaulting Party is notified in writing of the material breach and has failed to cure or give adequate assurances of performance within the thirty (30) day period after notice of material breach. Notwithstanding the foregoing, there shall be no cure period for payment-related breaches.
Termination by Operation of Law: This Agreement shall immediately and automatically terminate should either Party (a) become insolvent; (b) enter into or file a petition, arraignment or proceeding seeking an order for relief under the bankruptcy laws of its respective jurisdiction; (c) enter into a receivership of any of its assets or (d) enter into a dissolution or liquidation of its assets or an assignment for the benefit of its creditors.
Definitions: For the purpose of this Agreement, "Confidential Information" means information (in any form or media) regarding a Party’s customers, prospective customers (including lists of customers and prospective customers), methods of operation, engineering methods and processes (include any information which may be obtained by a Party by reverse engineering, decompiling or examining any software or hardware provided by the other Party under this Agreement), programs and databases, patents and designs, billing rates, billing procedures, vendors and AccuSpec’s, business methods, finances, management, or any other business information relating to such Party (whether constituting a trade secret or proprietary or otherwise) which has value to such Party and is treated by such Party as being confidential; provided, however, that Confidential Information does not include information that (i) is known to the other Party prior to receipt from the Disclosing Party hereunder, which knowledge shall be evidenced by written records, (ii) is independently developed as evidenced by written records, (iii) is or becomes in the public domain through no breach of this Agreement, or (iv) is received from a third party without breach of any obligation of confidentiality; and provided further, that Confidential Information does not include any information provided by CUSTOMER to AccuSpec regarding the manufacturing process.
"Person" shall mean and include any individual, partner¬ship, association, corporation, trust, unincor¬porated organization, limited liability company or any other business entity or enterprise.
“Representative” shall mean a Party’s employees, agents, or representatives, including, without limitation, financial advisors, attorneys, accountants, experts, and consultants.
In connection with this Agreement, each Party (the “Disclosing Party”) may furnish to the other Party (the “Receiving Party”) or its Representatives certain Confidential Information. For a period of three (3) years from the date of the last disclosure under this Agreement, the Receiving Party (a) shall maintain as confidential all Confidential Information disclosed to it by the Disclosing Party, (b) shall not, directly or indirectly, disclose any such Confidential Information to any Person other than (i) those Representatives of the Receiving Party whose duties justify the need to know such Confidential Information and then only after each Representative has agreed to be bound by this Confidentiality Agreement and clearly understands his or her obligation to protect the confidentiality of such Confidential Information and to restrict the use of such Confidential Information or (ii) if AccuSpec is the Receiving Party, a third party Vendor to the extent necessary for the purpose of obtaining price quotations and (c) shall treat such Confidential Information with the same degree of care as it treats its own Confidential Information (but in no case with less than a reasonable degree of care).
The disclosure of any Confidential Information is solely for the purpose of enabling each Party to perform under this Agreement, and the Receiving Party shall not use any Confidential Information disclosed by the Disclosing Party for any other purpose.
Except as otherwise set forth in this Agreement, all Confidential Information supplied by the Disclosing Party shall remain the property of the Disclosing Party, and will be promptly returned by the Receiving Party upon receipt of written request therefore.
If the Receiving Party or its Representative is requested or becomes legally compelled to disclose any of the Confidential Information, it will provide the Disclosing Party with prompt written notice. If a protective order or other remedy is not obtained, then only that part of the Confidential Information that is legally required to be furnished will be furnished, and reasonable efforts will be made to obtain reliable assurances of confidentiality.
Any material breach of this Section by a Party or its Representatives may cause irreparable injury and the non-breaching Party may be entitled to equitable relief, including injunctive relief and specific performance, in the event of a breach. The above will not be construed to limit the remedies available to a Party. In addition, the prevailing Party will be entitled to be reimbursed for all of its reasonable attorneys' fees and expenses at all levels of proceedings and for investigations, from the non-prevailing Party.
Each Party agrees not to publicize or disclose the existence or terms of this Agreement to any third party without the prior consent of the other Party except as required by law (in which case, the Party seeking to disclose the information shall give reasonable notice to the other Party of its intent to make such a disclosure). Neither Party shall make any press release or similar public statement without the prior consent of the other Party.
Insurance: AccuSpec agrees to maintain during the term of this Agreement (a) workers’ compensation insurance as prescribed by the law of the state in which AccuSpec’s services are performed; (b) employer’s liability insurance with limits of at least $500,000 per occurrence; (c) commercial automobile liability insurance if the use of motor vehicles is required, with limits of at least $1,000,000 for bodily injury and property damage for each occurrence; (d) commercial general liability insurance, including blanket contractual liability and broad form property damage, with limits of at least $1,000,000 combined single limit for personal injury and property damage for each occurrence; and (e) commercial general liability insurance endorsed to include products liability and completed operations coverage in the amount of $1,000,000 for each occurrence. AccuSpec shall furnish to CUSTOMER upon request certificates or evidence of the foregoing insurance indicating the amount and nature of such coverage and the expiration date of each policy.
Survival of Obligations: The following provisions shall survive the termination of this Agreement: Section A (Supply Chain Commitment), Section C (Order Cancellation), Section G (Warranty), Section H (Indemnification), Section J (Confidentiality) and Section L (Miscellaneous).
Severability: In the event any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be enforced to the maximum extent permissible under applicable law, and the other provisions of this Agreement will remain in full force and effect in accordance with their terms.
Compliance with Laws: Each party shall comply with all applicable laws, rules, and regulations in its performance of this Agreement. In particular, CUSTOMER acknowledges that products are subject to U.S. export controls, and CUSTOMER shall not export, re-export, divert, transfer, or disclose, either directly or indirectly, any product, information, or data, or any portion thereof, to any country outside of the United States or to the nationals of any such country, except as permitted by this Agreement and in strict compliance with relevant U.S. laws and regulations, including but not limited to U.S. export laws and regulations, and shall cooperate fully with AccuSpec in any official or unofficial audit or inspection that relates to these controls. CUSTOMER represents and warrants that (i) it is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) it is not listed on any U.S. Government list of prohibited or restricted parties.
Force Majeure: Neither party shall be responsible for any delay or failure in its performance of any obligation hereunder (other than payment obligations) due to causes beyond its reasonable control, provided that the party invoking this Section L.4 (i) provides prompt notice to the other party, and (ii) resumes performance promptly when conditions allow it to do so.