Subcontractors & Purchase Order 60-741.5(d)
Compliance with Applicable Laws: Seller 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/national, state/provincial and local governments and agencies thereof, including, without limitation, those relating to labor (including, if applicable, all provisions of the U.S. Fair Labor Standards Act of 1938, as amended), health, safety and the environment. 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, including any applicable non-discrimination and affirmative action requirements, shall be deemed to apply to this Purchase Order. In particular, if that contract or subcontract is with the U.S. federal government, with respect to any employment activity within the U.S.
“Non-Discrimination and Affirmative Action Requirements: Seller agrees not to discriminate against any employee or applicant for employment on the basis of sex, race, color, religion, national origin, age, marital status, political affiliation or sexual orientation, gender identity, genetic information, disability, status as a disabled veteran, a veteran of the Vietnam era, Active Duty Wartime or Campaign Badge Veterans or any other protected group status. Unless exempted, the Equal Opportunity clauses set forth in 41 CFR § 60-1.4(a) and 41 CFR § 60-741.5(a) are incorporated into this agreement by reference. Unless exempted, Seller agrees to comply with the requirements of these Equal Opportunity clauses and also agrees to comply with the provisions of 41 CFR § 60-300.5(a) (listing job openings with the state workforce agency), 41 CFR 61-250.10 and/or 41 CFR 61-300.10 (annual reporting of covered veterans), and 29 CFR Part 471, Appendix A to Subpart A (posting of employee notice).”
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.
Terms and Conditions
Unless superseded by a previously executed Cinch Purchasing Agreement, in which event that agreement along with these terms and conditions apply; the terms and conditions below together with those appearing on the face of this purchase order or on any attachments to this purchase order (collectively the “Purchase Order”) constitute the complete and exclusive agreement between Buyer and Seller. The acceptance of this Purchase Order, by acknowledgement, shipment of products, performance of services, or commencement of work on supplies shall constitute acceptance of the terms and conditions set forth below and on the face of this Purchase Order. The delivery date stated in the Purchase Order shall be deemed accepted by Seller unless Seller objects in writing to Buyer within two (2) business days of its receipt of this Purchase Order. Buyer shall not be bound by any acknowledgement or acceptance of this Purchase Order which modifies, supersedes, or otherwise alters these terms and conditions. These terms and conditions may only be modified with Buyer’s express written consent.
Time is of the essence for delivery and all other obligations arising herein. “Delivery Date” and/or Dock Date shall mean the date the Purchase Order line item is required to arrive at Buyer’s facility. If Seller fails to meet the scheduled Delivery Dates, Buyer may, at its option, cancel this Purchase Order, or any part of this order, without incurring any liability. If Buyer requests expedited shipment of any late deliveries, Seller shall pay any additional cost of expedited shipment. Seller shall not ship ahead of the scheduled Delivery Date unless authorized by Buyer in writing. Buyer may return, at its option, all unauthorized early shipments to Seller at Seller’s expense. Payments for early shipments shall be postponed until normal maturity after the scheduled delivery date. Seller, when it has reason to believe that deliveries will not be made as scheduled, shall provide immediate written notice to Buyer, setting forth the cause of such anticipated delay. Seller shall be, in addition to any other remedy available to Buyer, liable for Buyers documented additional expenses due to its failure to deliver in the event that it fails to provide such notice. Notwithstanding the above, neither Buyer nor Seller shall be liable for delays or defaults due to fires, floods, earthquakes, riots, storms or acts of civil or military authority and without their fault or negligence. In the event that any such condition exists as to Seller, Buyer may at its option, exercise its rights under Section titled CANCELLATION and be treated as Item (ii) Insolvency of Seller. Unless otherwise specified in this order, shipments of products shall be Free on Board/Delivery Duty Prepaid to the place shown on the face of this Purchase Order. The quantity covered by this Purchase Order is expressed as an “Estimated Order Quantity”. Buyer shall not have any obligation to
purchase the total Estimated Order Quantity nor shall Buyer be liable for any expense resulting there from.
PACKING AND SHIPPING:
Shipments must be preserved, packaged, handled and packed to permit efficient handling, provide protection from loss or damage, and comply with Buyer specifications, government regulations, industry standards and carrier requirements. Seller shall be liable for any loss or damage due to its failure to properly preserve, package, handle or pack any shipment. No charges shall be allowed for handling, packing, crating, returnable containers, import duties, transportation, documentation or media unless previously agreed to in writing and such agreement is referenced on the face of this Purchase Order. All containers, packing lists, bill of lading and invoices must list the Purchase Order number.
1) A Certification of Compliance to Cinch PO Requirements is required for all Purchased Material and Components.
2) Raw Material Certifications are required for all Raw Materials and shall be traceable to Original Material Manufacturer.
3) Test Reports are required for all Raw Material and Plating Services.
All products will be subject to inspection and approval by Buyer. Buyer shall have the right to inspect the products at any time during the manufacturing process at Seller’s facilities or elsewhere provided Buyer gives reasonable advance notice of each visit, and such visit does not disrupt the manufacturing capability of Seller, or violate Seller’s safety or clean room procedures. Seller must notify the Buyer of any nonconforming product produced and make arrangements for Buyer approval before sending any nonconforming material. Seller is required to flow down applicable requirements to sub-tier suppliers including key characteristics where required. Buyer may, at its option, reject and return any products which contain defective material or workmanship or which do not conform to this Purchase Order, applicable drawings, specifications, or samples. Rejected products which Buyer returns to Seller and replacement or repaired products which are returned to Buyer shall be returned at Seller’s risk and expense. Buyer may at its option use either a sampling plan or 100% inspection. Lots which fail to pass such sampling plans may, at Buyers option, be inspected 100% at Seller’s cost. Buyer may return any defective or nonconforming articles or lots to Seller at Seller’s risk and expense. Exercise of these remedies shall not be exclusive of or without prejudice to any other remedies provided in law or equity which are available to Buyer. Payment for any products or services shall not constitute final acceptance. All products supplied under this Purchase Order shall have a one (1) year date code limitation, unless otherwise specified in writing by Buyer. Seller shall retain all documentation including but not limited to Quotes, Inspection Records, Purchase Orders, Drawings, Certificates of Conformances, etc for a minimum of ten years or unless otherwise specified.
PRICING, INVOICES AND PAYMENT:
Seller shall sell to Buyer the products or services shown on the face of this Purchase Order at the price specified. All prices are exclusive of applicable freight charges and duties unless otherwise agreed to by Buyer. Seller warrants that the prices charged for the products or services are not higher than those charged to any other customer or Buyer site for products of like grade and quality in similar quantities or for similar services performed. If Seller fails to extend Buyer such pricing, Buyer many, in addition to any other remedies available at law or equity, invoice Seller for the difference between Buyer’s price and such lower price for all products already received and immediately change the price on this Purchase Order to reflect such lower price. Seller shall pay such invoice within thirty (30) days from the date of the invoice. An invoice must be issued by Seller for each separate shipment made against this Purchase Order. Each invoice shall reference this Purchase Order number. All invoices shall be issued and payment shall be made in the currency stated on the face of this Purchase Order. Buyer shall not be liable for any federal, state or local taxes unless Buyer can not supply an appropriate tax exemption certificate. Any applicable taxes shall be separately stated on the face of this Purchase Order and separately invoiced. Payment terms are set forth on the face of this Purchase Order and are payable from the date Buyer receives a correct and conforming invoice or receipt of products, whichever occurs last. Buyer may deduct from Seller’s invoice any moneys owed to Buyer by Seller.
Seller warrants that it has title to the products, and that the products are free of all liens. These warranties shall be perpetual. Seller warrants that it is authorized to sell the product to Buyer. Seller further warrants all product furnished under this Purchase Order are free from defects in material and workmanship and conform to applicable specifications, drawings, samples or other descriptions provided by Buyer; will fit the purpose intended; will be new and of merchantable quality and all services will be rendered in a good and workmanlike manner. These warranties shall survive inspection, test, acceptance and payment and shall accrue to Buyer, its successors, assigns and customers. All warranties (except for title) shall extend for 3 years after delivery of products or completion of services. Warranty failures may be returned to Seller for replacement or credit at Buyer’s option and at Seller’s risk and expense. Replacement products shall be in “like new condition” and subject to full original warranty. If Seller breaches any warranty specified in this order or afforded by law, Buyer shall be entitled to avail itself cumulatively of all remedies in law or in equity.
Buyer reserves the right, at any time, to make changes in the specifications, drawings, samples or other description to which the products or services are to conform, the quantity and method of shipment and packaging, or in the time or place of delivery. If any such change directly affects the price or delivery schedule of products or services, a reasonable adjustment will be made, provided that, Seller must make a written claim within thirty (30) days following Seller’s receipt of such changes. If the parties are unable to agree upon the amount of the adjustment, acting reasonably and in good faith, Buyer may without any liability cancel this Purchase Order as to all products and services affected. Unless otherwise stated on the face of this Purchase Order or in an attachment to this Purchase Order, Buyer may reschedule any delivery due at Buyer’s facility more than seven (7) calendar days from original delivery date without incurring any rescheduling charges or other expense. Seller shall confirm, within 2 days, any changes or reschedules in writing, via mail, facsimile or electronic data transmission. Seller shall not, without the prior written consent of Buyer, make any process, design or other changes to the products. This Purchase Order shall not be deemed or construed to be modified, amended, rescinded, canceled or waived in whole or in part, except in writing by Buyer.
Any tools, equipment, programs or materials furnished to Seller by Buyer for performance of this Purchase Order or tooling specifically paid for by Buyer as part of this Purchase Order, whether itemized or included in the price of any products, shall remain Buyer’s property. Seller agrees to maintain Buyer’s tools and use them only to fill this and any future orders for Buyer. While in Seller’s custody and control, Buyer’s property shall be insured by Seller at Seller’s expense in an amount equal to its replacement cost and Sellers shall supply, at Buyer’s request, evidence of the same. Buyer’s property shall be subject to repossession and/or removal by Buyer at any time.
INTELLECTUAL PROPERTY INDEMNITY:
Seller shall defend, indemnify, and hold harmless Buyer and its affiliates, subsidiaries, assigns, and its customers against all claims, losses, demands, fees, damages or liability incurred of any kind or nature arising from any actual or claimed infringement of any patents, trademarks, service marks, trade secrets, mask work rights, or copyrights with respect to any products or services furnished under this Purchase Order. If the use by Buyer or its affiliates, subsidiaries, assigns or customers of any product or service furnished under this Purchase Order in enjoined (‘Infringing Product”), Seller shall, at its own expense, procure for Buyer the right to continue using the infringing Product. If Seller is unable to do so, Seller shall at its own expense, either replace the infringing Product with a non-infringing product, or modify the Infringing Product so that it becomes non-infringing. If Seller is unable to replace or modify the Infringing Product, Seller shall promptly refund in full all costs paid by Buyer for the Infringing Product. If the use of such products is enjoined, temporarily or permanently, Buyer may return such products to Seller for full credit and cancel any remaining portion of the Purchase Order.
Buyer may cancel this Purchase Order in whole or in part at any time in the manner specified in this section, upon the occurrence of certain events, including but not limited to: (i) Default by Seller with respect to delivery, quality, or other obligation under this Purchase Order, or (ii) Insolvency of Seller, filing by Seller of a voluntary petition in bankruptcy, filing of an involuntary petition to have Seller declared bankrupt, provided the same is not vacated within thirty (30) days from the date of such filing, or the execution by Seller of any assignment for the benefit of creditors. In the case of (i) or (ii) above, Buyer shall incur no liability after giving written notice of the cancellation. Buyer shall have the option to cancel this order, without cause, at its discretion. In such event, Buyer’s liability shall not exceed the full price of products already manufactured to meet scheduled delivery dates. Such liability is limited to deliveries that Buyer has ordered with Dock Dates of no more than thirty (30) calendar days from the date of notification of such cancellation. If Buyer notifies Seller of the cancellation of this Purchase Order, Seller shall immediately stop all work on this Purchase Order. Buyer shall not be liable for Sellers excess material ordered or manufactured that is attributable to Sellers poor material management practices. Buyer may cancel this Purchase Order orally or in writing. If Buyer provides oral notice of cancellation, Buyer will confirm such oral cancellation in writing within 24 hours.
Seller shall be liable for the cost of manufactured or partially manufactured assemblies where Buyer has incorporated Seller’s defective products provided that: (i) Buyer did not cause the defect in the products, (ii) Buyer used reasonable efforts to inspect the products for defects, and (iii) Buyer stopped production with the suspect products after becoming aware of the problem. Notwithstanding the above, Buyer shall retain the right to avail itself of any remedy available at law or in equity.
Seller agrees to keep confidential from any third party all information obtained from Buyer while performing obligations pursuant to this Purchase Order, including but not limited to Buyer’s specifications, drawings, pricing, usage/schedules, verbal understandings, or site observations. Seller shall use at least the same care in protecting Buyers confidential information as Seller uses in protecting its own confidential information. Seller further agrees that such information shall be distributed internally on a need to know basis and shall not be used, except to perform obligations pursuant to this Purchase Order, without prior written permission of Buyer. Seller shall not disclose the existence of this Purchase Order to any third party, including the products or services supplied prices, pictures, descriptions, or samples without prior written approval from Buyer.
COMPLIANCE WITH APPLICABLE LAWS:
Seller certifies that all of the products or services to be furnished to Buyer to fulfill this Purchase Order will be manufactured or supplied by Seller in accordance with all currently applicable federal, state, and local laws, rules, regulations and orders, including without limitation environmental laws, rules, regulations, orders, and permits. Upon request, Seller shall furnish Buyer with specific certifications of legal compliance. Seller agrees specifically to comply with all Federal, State and local laws, statutes, ordinances, rules, regulations and relevant orders of the Secretary of Labor relating to equal employment opportunity.
Unless otherwise stated on the face of this Purchase Order, Seller hereby warrants to Buyer that all products provided to Buyer are safe for their foreseeable use, are not defined as hazardous or toxic substances under applicable Federal, State or local law and present no hazard to persons or the environment. Seller agrees to defend, indemnify and hold Buyer harmless for any expenses incurred by reason of Seller’s delivery to Buyer of hazardous or toxic substances.
Any notice to Buyer shall be directed to Buyers authorized representative whose name appears on the face of this Purchase Order. Any notice required pursuant to this Purchase Order shall be in writing and shall be deemed received as of the date of actual receipt of written notice.
Seller shall not delegate any duties or assign any rights under this Purchase Order. Any attempted delegation or assignment shall be void. Failure by Buyer to insist upon strict compliance to the terms and conditions of this Purchase Order is not a waiver of the term or condition. The waiver of any term or condition of this Purchase Order must be in writing. No such waiver shall be construed as a waiver of any other term or condition nor as a waiver of any subsequent breach of the same term or condition. If any provisions herein shall be held to be invalid or unenforceable for any reason, such provisions shall, to the extent of such invalidity or unenforceability, be reformed or, if necessary, severed to the minimum extent necessary to render the remainder of this Purchase Order to be valid or enforceable, but without in any way affecting the remainder of such provision or any other provision contained herein, all of which shall continue in full force and effect. This Purchase Order shall be construed in accordance with, and governed by, the laws of the state of Florida. Seller hereby consents to submit any disputes arising hereunder to Florida courts with jurisdiction over Miami Dade County, Florida. Seller represents, to the best of its knowledge and belief, that the Seller and any of its Principles (as defined in 48 C.F.R. 52.209-5) are not presently debarred, suspended, proposed for debarment, or declared ineligible for the award of contracts by any Federal agency. Seller represents that it has not within a three-year period preceding this agreement, been convicted of or had a civil judgment rendered against them for: commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, state or local) contract or subcontract; violation of Federal or state antitrust statutes relating to the submission of offers; or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, or receiving stolen property; and are not presently indicted for, or otherwise criminally or civilly charged by a governmental entity with, commission of any of the offenses enumerated in this paragraph.
TERMS AND CONDITIONS
GENERAL-The terms and conditions set forth below, together with those appearing on the quotation and sales order acknowledgement constitute the complete and extensive agreement between Cinch Connectivity Solutions and the buyer identified on the face of the quotation or order acknowledgement. This quotation/sales order acknowledgement takes precedence over any additional or different terms and conditions of the buyer, to which objection is hereby made by Cinch. No right or interest in this contract may be assigned by either buyer or seller without written permission of the other party and no delegation of any obligation by either buyer or seller may be made without the written permission of the other party. Any attempted or delegation shall be wholly and totally ineffective for all purposes unless in conformity with this paragraph.
QUOTATIONS-Quotations by Cinch are valid for 30 days after the date thereof. No binding contract shall be created and accepted by Cinch until notice of the acceptance of the order, by order confirmation given to the purchaser in writing or electronically; unless otherwise noted. Minimum Order requirements are 250 units per line item per release or $1500.00, whichever is greater. A schedule change must be requested in writing at least 60 days in advance. Schedule and quantity changes will result in price adjustments to delivered quantities and will be invoiced accordingly, including the cost of materials and work in process.
QUANTITIES-By accepting Cinch’s quotation and sales order acknowledgement, it is understood that the buyer agrees to accept over/under runs not to exceed 3% or ordered quantity on each line item.
CANCELLATIONS- All items contained in this Purchase Order Acknowledgement are NCNR, Non-Cancellable and Non-Returnable.
DELIVERY-Orders shall be shipped FCA Cinch’s premises in accordance with the “Incoterms 2000” of the International Chamber of Commerce. Cinch shall not be liable for damages for default or delay in production or delivery for causes beyond its control including but not limited to flood, earthquake, storm, fire, lightning, epidemic, war, explosion, riot, civil disturbance, sabotage, act of terrorism, strike, act of God or the public enemy, peril of the sea, expropriation or confiscation of properties, failure of or delays by carriers, change in law, interference by civil or military authorities.
PRICES-Cinch reserves the right to alter prices without notice to cover variations in the cost of raw materials, gold, labor, change in design or for any other reason whether similar to the preceding causes or not. If any change in Cinch’s price occurs during the production of an order, the price of the unshipped portion of the order outstanding at the date of such change in price shall be adjusted accordingly. All sale and/or use taxes and Custom duties imposed by Federal, State, County or municipal authority upon Cinch’s transfer and delivery of merchandise hereunder shall be paid by the buyer.
RETURN MATERIAL AUTHORIZATION (RMA)-All RMAs must have prior approval to be honored. RMAs for shortages must be requested by the customer within 5 days of receipt of shipment. ALL other RMAs must be requested within 60 days of receipt of shipment. RMAs can not be honored on parts processed resulting in change of dimensions or characteristics in ANYWAY from parts ordered. Cinch reserves the right and at its sole discretion issue credits or replacements for approved RMAs.
TOOLS & DIES-Tools, dies, gages and fixtures are an integral part of the manufacturing process and included in engineering charges on the job. As a proprietary item, payment by the buyer, whether separately quoted or not, conveys neither ownership nor the right of removal from Cinch’s plant.
PATENTS-The products hereunder are manufactured in accordance with buyer’s specifications and design. Accordingly, buyer shall defend and save harmless Cinch from all damages, claims, actions or suits based upon actual or alleged infringement of any patent in the U.S. or elsewhere. Indemnity shall include attorney’s fees and other costs in defending such claim.
WARRANTY-Cinch warrants that goods manufactured by Cinch will confirm to the drawings and specifications furnished by the buyer. Where products are used and combined with other equipment or components not furnished by Cinch, buyer agrees to indemnify Cinch for all claims and expenses resulting from the use or incorporation into buyer’s products. No express or implied warranty of merchantability or fitness for use is made except as provided herein.
LIMITED LIABILITY-Cinch’s liability shall be limited to the amount of the contract. Any action for breach of this contract must be commenced within six months after cause of action has occurred. The foregoing states Cinch’s entire and exclusive liability, in no event will Cinch be liable for consequential or special damages arising from any defect or use of its products.
DEFAULT-Should the buyer fail to pay any sum due to Cinch under any contract as and when it becomes due, or should the buyer be in breach in any respect of the contract entered into with Cinch, then Cinch shall have the right, at its sole option, either to suspend, with or without notice to the buyer, any or all further deliveries to or on behalf of buyer until the default has been cured or to terminate, effective upon notice to buyer, any contract between Cinch and the buyer so far as any further goods remain to be delivered, without prejudice to any claim or right Array might otherwise make or exercise. Array reserves the right to charge the buyer a late fee of 1.5% each month on any unpaid balance. Any money we receive will first be applied to the late fee, and the balance will be applied to other charges.
PURCHASER’S BANKRUPTCY-If any distress or execution shall be levied upon the buyer or, if the buyer shall offer to make any arrangement with creditors or commit any act of bankruptcy or, if any petition in bankruptcy shall be filed against it or, if the purchaser is a corporation, any resolution to conclude such corporation’s affairs (other than for the purpose of merger or reorganization) shall be adopted by its shareholders or board of directors, Cinch shall have the right forthwith to terminate effective upon written notice to the buyer any contract then subsisting without prejudice to any claim or right Cinch might otherwise make or exercise.
ENFORCEMENT-The construction, validity, and performance of the contract shall be governed by laws of the State of Florida, and any question, dispute or difference which may arise under, out of, or in relation to the order of contract or touching the meaning and construction of the same shall be submitted to a court of competent jurisdiction in Miami, Florida. All parties consent to both personal jurisdiction, subject matter jurisdiction and venue being only in the courts of competent jurisdiction in Miami, Florida and any objection to same is waived. All parties waive their right to trial by jury. The party prevailing in such litigation shall be entitled, in addition to such other relief as may be granted, to recover from the non-prevailing party a reasonable sum as and for its attorney’s fees and costs in such litigation.
GOVERNMENT CONTRACTS-If the buyer’s order contains a U.S. Government contract number and the products ordered are for use in the performance of said contract, those clauses of applicable U.S. Government procurement regulation specifically listed in said order and mandatorily required by U.S. statute to be included in such order shall automatically be incorporated herein.
U.S. EXPORT REGULATIONS- It is Cinch Connectivity Solutions’s policy that all customers, foreign or domestic, comply with U.S. export regulations. Under no circumstances shall Cinch Connectivity Solutions or our customers participate in any export activity, which is in violation of any US Export Regulations. Exports or re-exports to embargoed countries are prohibited without an export license.
Exports and re-exports to parties who have been denied export privileges or debarred from an export transaction are prohibited. No activities will be undertaken that violate U.S. export policies which seek to control nuclear proliferation, missile technology, chemical and biological weapons, as they relate to nations known to support international terrorism. Exports and re-exports of defense articles as prior to export. Failure to do so is a violation of ITAR and Cinch Connectivity Solutions’s policy. Violations against US Export laws and regulations, including EAR and ITAR, can result in termination of an order and/or future business relations.