Terms & Conditions

2.1 Acknowledgment

Unless this Purchase Order is immediately rejected, it will be deemed accepted. Seller’s rejection of this Purchase Order must be in writing.

2.2 Prices and Taxes

Prices include all previously agreed-upon costs, charges, and reimbursements to be paid to Seller by Buyer. Any Purchase Order issued by Buyer without a price is not valid. If the sale is specified as “Taxable” on the Purchase Order but the amount of applicable sales or comparable tax is not specified, Seller will be entitled to charge Buyer separately for such amount. Seller warrants compliance with all applicable tax laws. Any charge not included in the Product price must be agreed to in writing by Buyer and billed as a separate item on Seller’s invoice.

2.3 Shipments

As specified on the corresponding Purchase Order, shipping terms are defined using INCOTERMS 2000 as published by the International Chamber of Commerce. Transfer of title will coincide with the transfer of risk in accordance with the shipping terms in the Purchase Order. The original bill of lading or a comparable document will accompany each shipment. If the Products are not delivered in the quantities and at the times specified, time being of the essence, Buyer reserves the right, without liability and in addition to its other rights and remedies, to: (A) direct expedited routing of the Products to Buyer, with the extra cost paid by Seller; and/or (B) cancel all or part of the Purchase Order and purchase substitute goods or services without further obligation to Seller. Products are subject to Buyer’s inspection and acceptance within a reasonable time after delivery. Buyer’s inspection and acceptance shall not be deemed a waiver of any rights under these Terms and Conditions or applicable law.

2.4 Payments

Buyer will have no obligation to pay for any Product until a correct invoice for the Product is received at the “bill to” address specified by Buyer. Unless otherwise noted on the Purchase Order or any other written agreement, payment terms commence upon the later of the Product’s delivery, inspection and acceptance, or Buyer’s receipt of a correct invoice.

2.5 Changes and Assignments

Buyer shall have the right at any time to make changes in Product specifications, delivery terms, or other provisions of its order hereunder. If any such change causes a material increase in the cost of, or time required for, Seller’s performance, Seller shall immediately notify Buyer of such increase and the parties shall agree on revised pricing or time for performance, if any. Any change to, or assignment of, the Purchase Order by Seller will be void without Buyer’s written consent.

2.6 Seller’s Warranties

Seller represents, warrants, and covenants to Buyer as follows:

• a. Products. Each Product delivered to Buyer will be: (i) free from defects in design, except to the extent the design is provided to Seller by Buyer; (ii) of merchantable quality; (iii) in conformity with samples, models, drawings, designs, and specifications provided or approved by Buyer, and with any representations, affirmations, or promises made by Seller or its agents, whether or not in writing; (iv) free from any security interest or other adverse claim against title; (v) non-infringing of any U.S. or other patent, copyright, trade secret, trademark, or other proprietary right of a third party, except to the extent the Products are manufactured or designed pursuant to Buyer’s specifications; and (vi) accompanied by services performed in a good and workmanlike manner.
• b. Legal Requirements. The Products will be manufactured, sold, and delivered to Buyer in compliance with all applicable laws, rules, and regulations, including without limitation U.S. import and export laws and regulations if the Products are to be delivered to the United States.
• c. No indemnification, warranty, or obligation of Seller hereunder, nor any other express or implied warranty by Seller relating to this order, will be deemed disclaimed, excluded, limited, or waived unless evidenced by a specific written amendment to this order signed by Buyer.

2.7 Buyer’s Remedies

If any Product does not conform to Seller’s representations, warranties, and covenants, Buyer, at its option, may return the Product to Seller at Seller’s expense and risk or may hold the Product pending receipt of Seller’s instructions. At Buyer’s election, and upon request by Buyer, Seller shall immediately replace the Product with a conforming Product, repair the Product, or return any related payments made by Buyer. Buyer’s remedies are not exclusive and are in addition to any other rights or remedies available under applicable law, including the right to have a third party repair or replace nonconforming or defective Products or perform nonconforming services and to seek damages from Seller. Buyer shall have no duty to inspect any Product prior to its use or resale, and neither Buyer’s inspection, testing, failure to inspect or test, payment for, possession of, or use of any nonconforming Product will be deemed a waiver or release of Seller’s warranties and obligations hereunder. Seller’s representations, warranties, covenants, and obligations will extend to and be enforceable by Buyer’s customers and any subsequent owners of the Products. Buyer reserves the right to reject and return, at Seller’s expense, all materials or Products in excess of the quantity ordered.

2.8 Indemnity and Assurances

Seller agrees to indemnify, defend, and hold harmless Buyer and each of Buyer’s affiliates, and each of their officers, directors, employees, agents, subcontractors, distributors, and customers, against and from any claims, damages, losses, liabilities, and expenses, including attorneys’ fees, incurred as a result of: (i) Seller’s breach of its representations, warranties, covenants, or obligations hereunder; (ii) defects in the Products, or the design thereof to the extent the Products are manufactured to Seller’s design; (iii) Seller’s negligence or violation of any law or governmental rule or regulation; and (iv) third-party claims relating to the Products to the extent caused by Seller’s acts or omissions. Buyer reserves the right to require from Seller, at any time, satisfactory assurance of performance of Seller’s indemnity and other obligations, including evidence of appropriate insurance coverage. Seller’s refusal or failure to promptly furnish such assurance will constitute a breach entitling Buyer to suspend or cancel further Product deliveries. In the event of an infringement claim involving proprietary rights of the Products, Seller shall indemnify, defend, and hold harmless Buyer, its affiliates, officers, directors, employees, and agents from and against such claims and reimburse Buyer for related expenses, including attorneys’ fees.

2.9 Buyer’s Property Used by Seller

Any items used by Seller in the design, production, or delivery of the Products will be Buyer’s property if the price to be paid by Buyer for any Products specifically includes the costs of such items or if such items are otherwise paid for or provided by Buyer. While any such “Buyer Property” is in Seller’s possession, it will be stored and kept in good condition by Seller at Seller’s expense. Seller will replace any such property that is damaged or destroyed, or reimburse Buyer for any damage to or loss of such property. Seller shall not allow any liens or encumbrances against Buyer Property. No Buyer Property shall be used in the production or design of any articles other than the Products, nor shall Products made using such items be furnished or quoted to any party other than Buyer without Buyer’s written consent. Upon completion or termination of the Purchase Order, Buyer Property will be delivered or disposed of as Buyer directs.

2.10 Cancellation

Seller’s uncured breach of any representation, warranty, covenant, or obligation hereunder will, in addition to Buyer’s other rights and remedies, entitle Buyer to suspend or cancel further Product deliveries or services without penalty or liability. Buyer also reserves the right to cancel further Product deliveries at any time by written notice to Seller, in which event Seller shall cease work and hold all completed and partially completed Products, and any materials acquired specifically for production, subject to Buyer’s instructions. In that event, Buyer’s sole obligation shall be to remove such Products and materials from Seller’s facility at Buyer’s expense and risk and to purchase such items from Seller for cash payments equal to: (A) the prices stipulated for completed Products that have been inspected and accepted by Buyer; and (B) Seller’s cost, including a reasonable overhead allocation, for each uncompleted Product or item of such materials, determined in accordance with generally accepted accounting principles and not exceeding the contract price. If any cancellation or suspension occurs under this paragraph, Seller’s representations, warranties, and covenants shall continue to apply to all previously delivered Products.

2.11 Confidentiality and Intellectual Property

In addition to Seller’s obligations under any non-disclosure agreement with Buyer, Seller shall be responsible for safeguarding all secret, confidential, or restricted information disclosed by Buyer or developed in connection with the Purchase Order. If there is any conflict between the confidentiality obligations herein and the non-disclosure agreement, the non-disclosure agreement takes precedence. If Seller conceives, through Buyer participation or contribution, any design changes or design completions that constitute improvements on the subject matter of the Purchase Order, such improvements shall belong solely to Buyer. Seller may not manufacture or sell to any party other than Buyer Products designed by Buyer or Products containing features designed by Buyer.

2.12 Other Provisions

The Purchase Order and these terms and conditions, and any claims or disputes related thereto, will be governed by the laws of the state or jurisdiction in which the Buyer’s facility issuing the Purchase Order is located, excluding conflict of law provisions and the U.N. Convention on Contracts for the International Sale of Goods. All actions or proceedings relating to the Purchase Order shall be resolved in the District Courts of Harris County, Texas, or the Federal Courts of the Southern District of Texas; provided, however, that at Buyer’s discretion such action may be heard in another place designated by Buyer if necessary to obtain jurisdiction over third parties so that the dispute can be resolved in one action. Seller agrees to appear in any such action, consents to the jurisdiction of such courts, and waives any objection as to venue. If either party institutes voluntary bankruptcy or insolvency proceedings, or if such proceedings are initiated against either party and not dismissed within 60 days, or if Seller is unable to perform its required functions hereunder, the other party may cancel the Purchase Order by written notice. If any provision of this document or the Purchase Order is held invalid, such invalidity shall not affect any other provision. Seller acknowledges and agrees that time is of the essence.

2.13 Exclusive Terms and Conditions

The provisions of this agreement cannot be changed or modified except by a written document signed by Buyer. The Purchase Order and this document contain the entire and only agreement between the parties with respect to the sale of the Products or provision of the services covered hereby and any related services. Any response to or confirmation of these terms by Seller stating different or additional terms will operate as an acceptance of these terms, but such different or additional terms are hereby rejected unless specifically agreed to in writing by Buyer. Notwithstanding any different or additional terms or conditions contained in Seller’s quotation, acknowledgement, invoice, or other communication, any offer of Seller is accepted only on the condition that Seller assents to the terms and conditions contained herein. Buyer’s failure to object to provisions contained in any communication from Seller will not be deemed a waiver of the provisions contained herein. Under no circumstances shall Buyer be liable to Seller for any consequential or incidental damages related to this order.