AIR TECHNIQUES INC.
TERMS AND CONDITIONS OF PURCHASE
1. GENERAL: This form contains Air Techniques Inc. (abbreviated hereafter as ATI) complete terms and conditions of purchase. All our orders and purchases are subject to these terms and conditions. This is the document referred to on our purchase order(s) and is part and parcel of each order. ATI shall not be bound by seller's terms and conditions unless expressly agreed to in writing. The purchase order along with these terms and conditions is the complete and final agreement between both parties. Revisions to this purchase order are not valid unless expressly approved, in writing, and signed by ATI's purchasing departments Buyer. If any term or condition of this purchase order or its application shall be illegal, such illegality shall not affect any other term or condition. In case of conflict between these printed provisions and any written, typed or stamped provisions, the latter shall govern. If any discrepancies, differences, or conflict exists between the terms of this purchase order, drawings or specifications, the Seller shall immediately bring those to the attention of the Buyer. Pending Buyer's decision, Seller shall not proceed except at own risk.
Buyer: Buyer is ATI. ATI is represented by its officers, purchasing agents, and purchasing department buyers who are the only ones who can make commitments to Seller or make changes to this purchase order.
Seller: (Vendor, Supplier, Contractor) is the individual, company, corporation, or representative as specified in the purchase order. Contract: contract, order and purchase order are synonymous. On time: are deliveries arriving at ATI within the week prior to and up to the date specified, but not later.
3. ACCEPTANCE: This purchase order constitutes Buyers offer to Seller. Buyer expressly limits acceptance to the terms of this offer. Sellers acceptance may be by return of signed acknowledgment or by Seller's commencement of work or deliveries. By accepting this order, Seller agrees to comply with all applicable specifications, assures and warrants that the items delivered or services rendered conform thereto.
A. Per Buyers quality procedures, Buyer maintains the right to a source/vendor inspection with a minimum 24 hours advance notice.
B. Acceptance of this purchase order shall constitute an agreement between Buyer (ATI) and Seller (vendor) that Seller will notify Buyer of any pending changes in part, process, procedure, material, equipment used in manufacture, location of manufacture, Tier 2 supplier, or any other variable that may affect the quality of the purchased part or service and our product. Buyer must approve IN WRITING any changes prior to becoming effective. Buyer reserves the right to cancel with impunity any open orders/contracts should changes not meet our requirements.
5. INSPECTION: All the articles and parts thereof including raw materials, may be inspected, tested or otherwise evaluated by Buyer at any time or place including Seller's plant. Buyer may charge Seller for the cost of re-inspecting any rejected articles or service. All materials or articles will be subject to final inspection and approval at destination by Buyer. Should Buyer receive items not in conformance with specifications, the Seller shall have the opportunity to sort out the damaged parts and either repair or replace these at the Buyers discretion. If the Seller does not immediately effect sorting out, repair or replacement, the Buyer shall be entitled to return the entire consignment at the Seller's expense and to claim subsequent performance or compensation, at his discretion or may cancel this contract as in paragraph 6. All transportation charges (including handling costs) for the return of Sellers defective or rejected articles shall be borne by Seller. At Buyer's option, Seller shall either replace or credit any and all charges incurred by Buyer. Should this order require a first piece inspection and such first pieces don't conform to specification or acceptable standards of workmanship, Buyer may at its sole option permit re-manufacture and re-submission of the first piece or cancel this purchase order under the provision of paragraph 6.
6. ADVANCE MANUFACTURE AND SHIPMENTS: Seller shall not make material commitment or manufacture in advance of Sellers normal time to meet Buyers delivery schedule as in the purchase order. Buyer reserves the right to return any and all items delivered ahead of schedule or in excess of PO release quantities. Seller will credit all handling and transportation charges incurred with the return of such items.
7. TIME, DEFAULT AND DELAY:
A. Buyers production schedule and/or commitments are based upon Seller's agreement to on time delivery of quality products and/or services specified on the purchase order. TIME IS THEREFORE THE ESSENCE OF THIS CONTRACT. If any anticipated or actual delays arise, Seller shall immediately notify Buyer of the delay, cause and solution. Notwithstanding such notifications, if deliveries of acceptable items or services are not in conformance with specifications herein or are not delivered at the time agreed upon, or if Seller fails to comply strictly with any provision of or repudiates this purchase order, Buyer reserves the right to terminate the contract for default, purchase elsewhere and hold Seller accountable for additional costs incurred. Payment delinquency or dispute by Buyer, are not an excusable cause for delay. Delinquent delivery, at Buyers option, may require shipment by premium transportation and such portion shall be at Seller's expense. Buyer shall also have the right to cancel this contract for default and in addition to other remedies it may have at law, purchase elsewhere and hold Seller accountable for any additional costs Buyer may incur in the event that:
Seller shall default in any other way in the performance of this contract:
Seller shall so fail to make progress in the performance of this contract as to endanger its timely completion;
Seller shall cease to conduct operations in the normal course of business; or if any proceeding under bankruptcy or insolvency laws is brought by or against Seller; or a receiver for Seller is appointed or applied for; or an assignment for the benefit of creditors is made by Seller. In the event of such termination for the foregoing causes: Upon Buyer's written demand, Seller shall deliver in the manner and to the extent required by Buyer, materials and contract rights such as any completed items and such partially completed supplies and materials, parts, tools, dies, molds, jigs, fixtures, plans, drawings, information, and contract rights (hereinafter contract materials) as Seller has specifically produced or specifically acquired for the performance of this purchase order and Buyer shall be obligated to Seller in an amount equal to the reasonable value of such materials after crediting Buyer with all claims, damages, advance payments or other moneys due from Seller to Buyer.
B. Seller agrees forthwith to repay to Buyer any sums advanced Seller on account of this purchase order. This paragraph is applicable to this purchase order whether or not the purchase order requires Seller to manufacture items to Buyer's drawings, designs or specifications.
8. ASSIGNMENT AND SUBCONTRACTING: The performance of this contract may not be assigned or materially subcontracted in whole or in part by Seller without Buyer's prior written consent.
9. SHIPPING, MARKING, & PACKING INSTRUCTIONS:
A. Shipping instructions: Carriers set forth in this purchase order remain in effect unless Seller requests and receives written authorization to deviate. Seller shall consolidate all shipments to be forwarded on any one day. All shipments will be classified in accordance with the National Motor Freight (NFMC) or Uniform Freight (UFC) Classifications. All classifications are to be complete so as to enable carriers to apply proper ratings. All bills of lading are to contain the NFMC or UFC item number and Buyer's purchase order number. Original bills of lading will be attached to Seller's invoice. Destination of shipment is specifically set forth in the schedule of this purchase order. Buyer reserves the right to debit Seller for excessive freight and handling charges incurred for failure to comply with these instructions.
B. Marking instructions: All packages will be labeled. Master carton labels will include the following: a. shipper's (Seller's) name, b. consignee name, address, ZIP code, c. Buyer's Purchase order number, d. case or box number, e. weight. Individual packages will be labeled with Buyers part number and quantity. Packing list will list contents of each package; one copy will be affixed to package number one and conspicuously noted. Second copy of packing list will accompany Seller's invoice. Fragile/Sensitive/Magnetic/Caustic/flammable, Etc. materials must be clearly marked to indicate nature of contents and the degree of care required.
C. Packing instructions: Seller will assure proper care is taken in packing item to ensure against damage during shipment. Shipments received with in transit damage due to insufficient or inadequate packing can be rejected and returned at Seller's expense; claims and liability for damage will rest upon the Seller.
D. Original bill of lading will reference the purchase order number and shall be retained by Seller for one year, surrendered to Buyer if requested in writing.
10. PRICE, PAYMENT AND INVOICES:
A. Seller represents the prices are the lowest prices for which these items are sold, considering differences in quantities, schedule, or other such terms, and Buyer shall be entitled to receive from Seller any price reductions which Seller shall make to others in its selling prices for comparable items. No additional charge whatsoever, including Seller handling charges, will be recognized and paid by Buyer unless having obtained prior written approval from Buyer submitted in accordance with Paragraph 16 hereof.
B. Terms of payment, unless otherwise specifically agreed herein shall be two percent cash discount if payment is made within ten days; net forty five days. Dating commences upon receipt of invoices or of material, whichever is later.
C. Payment to Seller shall be made upon delivery, inspection and acceptance of items in this purchase order. Pursuant to properly prepared invoices accompanied by specified certifications of conformance to the requirements hereunder provided. Partial payments can be made, if specifically authorized in the purchase order.
D. Returns are subject to a restocking fee of 25% of dealer prices.
11. PROPERTY: Buyer shall retain title to any designs, sketches, drawings, artwork, artistic rights, blueprints, patterns, dies, models, molds, plates, cuts, special appliances, and materials furnished by or paid for by Buyer in connection with this purchase order. They shall be recorded and prominently identified as property of Buyer and retained by Seller on consignment subject to examination by Buyer. They shall be maintained in good conditions and held at Seller's risk, replaced by Seller if lost, damaged, or destroyed. Such property shall be used exclusively in production of articles required by purchase orders and shall not be used for larger quantities than specified herein, or for use by any other party besides Buyer without explicit prior written consent. Such property shall be subject to disposition by Buyer at any and all times and, upon demand, will be returned to Buyer including any unused material furnished by Buyer and all spoiled or defective materials or products which contain any proprietary device, unless Buyer shall otherwise direct in writing. Nothing in this paragraph shall be construed as imposing obligation on Buyer to furnish such property.
12. PATENT PROTECTION: To the extent articles or materials delivered hereunder are not manufactured pursuant to drawings or design specifications originated by the Buyer, Seller guarantees sale and/or use of any or all items delivered hereunder will not infringe on any domestic or foreign patents. Seller agrees to save and hold Buyer and/or its customers harmless from any loss, damage, or liability which may be incurred due to infringement or alleged infringement of patent rights with respect to such items. Seller will at its own expense defend any action, suit or claim in which such infringement is alleged, provided Seller is duly notified as to suits or claims against Buyer.
13. CANCELLATION: Termination for default is set forth in Paragraph 6 hereof. Terms relating to termination for convenience: Buyer may, whenever it deems necessary, terminate this purchase order in whole or in part by written or facsimile notice to Seller. Upon such notification Seller will promptly stop work, notify suppliers to stop work and protect property in the Seller's possession for which Buyer has or may require an interest. In event of such termination Seller shall be paid actual costs incurred up to the time of termination which are properly allocable to, or apportionment herewith including costs to suppliers which are so allocable, plus reasonable costs of settling and paying claims arising directly from this termination and a reasonable allowance for profit earned thereon; provided, recognized accounting practices and principles are used and consistently applied. Seller shall not be entitled to any anticipatory profits with respect to the terminated portion. In no event shall termination charges exceed the price agreed upon as set forth herein for the terminated items nor shall Buyer be liable for incidental or consequential liabilities. Seller shall submit termination claim to Buyer within two months after effective date of termination.
14. INSURANCE: Property of Buyer in Seller's possession shall at all times be insured by Seller to its full value against loss or damage.
15. PROPRIETARY INFORMATION:
A. Non Disclosure- Seller will not disclose to its customers, suppliers, or the general public any information related to this Purchase order and items contained within, without prior written consent of Buyer. The duty of confidentiality also applies to use in advertising, public relations and any other commercial purpose.
B. Buyers drawings and designs: Seller acknowledges and agrees that all drawings, specifications, technical information and data furnished to Seller hereunder are submitted confidentially, remain property of Buyer at all times, may not be directly or indirectly used, retained, copied or reproduced by Seller except in manufacture of items furnished to Buyer, and may not be divulged without prior written approval of Buyer.
A. Seller hereby warrants its items sold hereunder for a minimum of one year from shipment by Buyer to its customer. If installation or start up is provided, the warranty will commence upon successful completion of installation and acceptance. Should Seller's standard warranty extend for a period longer than one year, the Seller's standard warranty applies.
B. Notwithstanding inspection and acceptance by Buyer of the items furnished hereunder, Seller expressly warrants that all of the articles, assemblies, materials, and services furnished hereunder will be free of defects in design, material and workmanship, merchantable, conform and perform to applicable specifications, drawings, samples, fit, or other descriptions given within the purchase order including knowledge of performance in the final product. These warranties shall survive acceptance and payment. These warranties shall not be deemed to be exclusive; they will apply to the Buyer, its customers, and users. Seller agrees all warranties implied by law and all other legal remedies apply herein with full force and effect. Seller further agrees to save Buyer harmless from any loss, damage or expense whatsoever, including attorney's fees that may be suffered as a result of Seller's breach of warranty.
17. CHANGES: Buyer by written notice shall have the right from time to time and without notice to make changes within this purchase order. Changes, clarifications, and other matters which may be decided upon by others working for Buyer and Seller will not be binding upon each other until such time Buyer elects to notify Seller's sales representative in writing. Minor changes or clarifications to scope, which have no effect on item pricing, delivery time or quantity, will be achieved by written notice by Seller to Buyer which when accepted by Buyer will be incorporated into this purchase order. Major changes to scope, which affect a decrease, increase, additions in or to any line item and affect pricing in any manner will be made through a bilateral written amendment to this purchase order by Buyer prior to Seller taking action. Reduction in quantity or scope is addressed in paragraph 12.
18. LAWS AND REGULATIONS:
A. Seller agrees to comply with all Federal, State and local laws, ordinances, and regulation and with all orders and regulations of the Executive and other departments, agencies, and instrumentality's of Federal, State and local Governments. Without limiting the foregoing Seller agrees to comply with all Federal and State labor laws, including but not limited to, non -discrimination in employment, working conditions, wages andhours, such as the Fair Labor Standards Act of 1938 as amended, Seller further holds Buyer harmless from any liability resulting from failure of such compliance.
B. APPLICABLE LAW: The substantive law of the State of New York is applicable to this Purchase Order. Where the procure or substance of the law of State of New York would require the Federal common law of contracts, the Federal Government Contract Law shall apply.
C. DISPUTES: Any dispute, controversy or claim arising out of, in connection with or in relation to this purchase order, its interpretation, construction, formation, performance or breach shall be submitted to and determined by the appropriate court of original jurisdiction of Suffolk County, state of New York.
D. EEOC: The Equal Employment Opportunity Clause Section 202 paragraphs 1 through 7 of Executive Order 11246, as amended, 38 USC 4212 of the Vietnam ERA Readjustment Assistance Act of 1974 and Section 503 of the Rehabilitation Act of 1973 relative to equal employment opportunity and implementing rules of the Office of Federal Contract compliance programs are incorporated herein by specific reference.
19. WAIVER: The failure of either the Buyer or the Seller, in any one or more instances, upon the performance of any of the terms, convents or conditions of this purchase order to exercise any right hereunder shall not be construed as a waiver or relinquishment of the future performance of any such term, convent or condition by the other party hereto or the future exercise of such right, and the obligation of such other party with respect to such future performance shall continue in full force and effect.