Purchase Orders

TERMS AND CONDITIONS OF PURCHASE

1. Applicability. This purchase order is an offer by Tecovas, Inc., a Delaware corporation (the “Buyer”), for the purchase of the products specified on the face of the purchase order (the “Products”) from the party to whom the purchase order is addressed (the “Seller”) in accordance with and subject to these terms and conditions (these “Terms”; together with the terms and conditions on the face of the purchase order, the “Order”). The Order, together with any documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the Order, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the Order unless otherwise agreed to by the parties. The Order expressly limits Seller’s acceptance to the terms of the Order. These Terms prevail over any terms or conditions contained in any other documentation and expressly exclude any of Seller’s general terms and conditions of sale or any other document issued by Seller in connection with the Order.
2. Acceptance by Buyer. The Order is not binding on Buyer until Seller accepts the Order in writing. Buyer may withdraw the Order at any time before it is accepted by Seller.
3. Delivery Date. Seller shall deliver the Products in the quantities and on the date(s) specified in the Order or as otherwise agreed in writing by the parties (the “Delivery Date”). If no delivery date is specified, Seller shall deliver the Products within thirty (30) days of Seller’s receipt of the Order. Time, quantity, and delivery of the Products is of the essence. Without limiting Buyer’s other rights and remedies hereunder, if Seller does not comply with any of its delivery obligations under this Agreement, Buyer may, in Buyer’s sole discretion and at Seller’s sole cost and expense: (a) approve a revised Delivery Date, (b) require expedited or premium shipment, or (c) cancel the applicable Order pursuant to the terms herein and obtain similar products from other sources (and all such products will be deemed to have been purchased under these Terms and any applicable Order(s) for purposes of satisfying Buyer’s quantity requirements hereunder, if any).
4. Quantity. If Seller delivers more or less than 100% of the quantity of Products ordered, Buyer may reject all or any excess Products. Any such rejected Products shall be returned to Seller at Seller’s risk and expense. If Buyer does not reject the Products and instead accepts the delivery of Products at the increased or reduced quantity, the Price for the Products shall be adjusted on a pro-rata basis.
5. Delivery Location. All Products shall be delivered to the address specified in the Order (the “Delivery Location”) during Buyer’s normal business hours or as otherwise instructed by Buyer.
6. Shipping Terms. Delivery shall be made in accordance with the terms on the face of the Order. Seller shall give written notice of shipment to Buyer when the Products are delivered to a carrier for transportation. Seller shall provide Buyer all shipping documents, including the commercial invoice, packing list, bill of lading and any other documents necessary to release the Products to Buyer within one (1) business day after Seller delivers the Products to the transportation carrier. The Order number must appear on all shipping documents, shipping labels, bills of lading, invoices, correspondence and any other documents pertaining to the Order.
7. Title and Risk of Loss. Title passes to Buyer upon delivery of the Products to the Delivery Location. Seller bears all risk of loss or damage to the Products until delivery of the Products to the Delivery Location.
8. Packaging. All Products shall be packed for shipment according to Buyer’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Products are delivered in undamaged condition.
9. Amendment and Modification. No change to the Order is binding upon Buyer unless it is in writing, specifically states that it amends the Order and is signed by an authorized representative of Buyer. If there is an effective Manufacturing Agreement in place between the Buyer and Seller when this Order is issued, then the terms of the Manufacturing Agreement shall control in the event of a conflict.
10. Inspection and Rejection of Nonconforming Products; Access Rights. Buyer has the right to inspect the Products on or after the Delivery Date. Buyer, at its sole option, may inspect all or a sample of the Products, and may reject all or any portion of the Products if it determines in its reasonable discretion that the Products are nonconforming or defective. If Buyer rejects any portion of the Products, Buyer has the right, effective upon written notice to Seller, to: (a) rescind the Order in its entirety; (b) accept the Products at a reasonably reduced price; or (c) reject the Products and require replacement of the rejected Products. If Buyer requires replacement of the Products, Seller shall, at its expense, promptly replace the nonconforming Products and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective Products and the delivery of replacement Products. If Seller fails to timely deliver replacement Products, Buyer may replace them with products from a third party and charge Seller the cost thereof and terminate the Order for cause pursuant to the terms herein.
11. Price. The price of the Products is the price stated in the Order (the “Price”). If no price is included in the Order, the Price shall be the price set out in Seller’s published price list in force as of the date of the Order.
12. Payment Terms. Seller shall issue an invoice to Buyer on or any time after the completion of delivery and only in accordance with these Terms. Buyer shall pay all properly invoiced amounts due to Seller within thirty (30) days after Buyer’s receipt of such invoice, except for any amounts disputed by Buyer in good faith.
13. Setoff. Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Buyer to Seller.
14. Warranties. Seller warrants to Buyer that all Products will: (a) be free from any defects in workmanship, material and design; (b) conform to applicable specifications, drawings, designs, samples and other requirements specified by Buyer; (c) be fit for their intended purpose and operate as intended; (d) be merchantable; (e) be free and clear of all liens, security interests or other encumbrances; and (f) not infringe or misappropriate any third party’s patent or other intellectual property rights. These warranties survive any delivery, inspection, acceptance or payment of or for the Products by Buyer.
15. General Indemnification. Seller shall defend, indemnify and hold harmless Buyer and Buyer’s subsidiaries, affiliates, successors or assigns and its/their respective directors, officers, shareholders and employees and Buyer’s customers (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with Seller’s negligence, willful misconduct or breach of the Order or these Terms.
16. Compliance with Law. Seller is in compliance with and shall comply with all applicable laws, regulations and ordinances of all governmental entities including local, state, federal or international, now or hereafter enacted, including any laws applicable to labor standards and environmental concerns. Seller has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under the Order. Seller shall ensure all Products are not mined, produced, or manufactured wholly or in part, with prohibited forms of labor, i.e., slave, convict, indentured, or forced or indentured child labor. Seller shall promptly, upon becoming aware thereof, notify Buyer if it, or any of its subsidiaries, becomes the target of any governmental entity imposing economic sanctions or trade embargoes, or the country or territory where any of them is located, organized, or a resident becomes the target of sanctions imposed by the United States Department of the Treasury’s Office of Foreign Assets Control or any other governmental entity.
17. Import and Export. Seller shall provide all information under its control which is necessary or useful for Buyer to obtain any export or import licenses required for Buyer to receive Products, including, but not limited to, certificates of origin, (NAFTA, CITES, etc.), manufacturer’s affidavits, Buy America qualifications, and U.S. Federal Communications Commission’s identifier, if applicable. This information is to be provided within ten (10) business days of Buyer’s request.
18. Termination. Buyer may terminate the Order, in whole or in part, at any time with or without cause on thirty (30) days’ prior written notice to Seller. In addition to any remedies that may be provided under these Terms, Buyer may terminate the Order with immediate effect upon written notice to the Seller, either before or after the acceptance of the Products, if Seller has not performed or complied with any of these Terms, in whole or in part. Without limiting the generality of the foregoing, if Seller fails to deliver the Products in full on the Delivery Date, or if Buyer reasonably believes that Seller is or will be unable to deliver the Products in full on the Delivery Date, Buyer may terminate the Order immediately by providing written notice to Seller and Seller shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses directly attributable to Seller’s failure to deliver the Products on the Delivery Date. If the Seller becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then the Buyer may terminate the Order upon written notice to Seller. If Buyer terminates the Order for any reason, Seller’s sole and exclusive remedy is payment for the Products received and accepted by Buyer prior to the termination.
19. Survival. Any provision that, by its terms, is intended to survive the expiration or termination of this Agreement shall survive such expiration or termination.
20. Confidential Information. All non-public, confidential or proprietary information of the Buyer, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Buyer to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the Order is confidential (“Confidential Information”), solely for the use of performing the Order and may not be disclosed unless authorized by Buyer in writing. Seller shall not use the Confidential Information in any manner that is in competition with or to the detriment of Buyer. Seller shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. Neither party shall disclose the existence of any terms of this Agreement to any third party without the prior written consent of the other party, except as required by applicable laws or to such party’s accountants, attorneys and other professional advisors, provided such parties are acting under a duty of confidentiality. Upon Buyer’s request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to the Seller at the time of disclosure; or (c) rightfully obtained by the Seller on a non-confidential basis from a third party.
21. Assignment. Seller may not assign this Agreement, or assign or delegate any right or obligation hereunder, by operation of law or otherwise, without the prior written consent of Buyer. Without limiting the generality of the foregoing, Seller may not subcontract any of its rights or obligations under this Agreement to any third party without Buyer’s prior written consent. In the event that Buyer consents to any assignment or subcontracting of Seller’s obligations, Seller shall remain fully responsible for the performance of those obligations. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
22. Relationship of the Parties. The relationship between the parties under this Agreement is that of independent contractors. Nothing contained in the Order shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from the Order.
23. Governing Law. All matters arising out of or relating to the Order shall be governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Texas.
24. Arbitration. Any dispute or claim arising out of or related to this Agreement, or the interpretation, making, performance, breach or termination thereof, shall be finally settled by binding arbitration in Austin, Texas under the Rules of Arbitration of the International Chamber of Commerce Court of Arbitration, by three arbitrators appointed in accordance with said Rules. Judgement on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. The arbitral proceedings and all pleadings and written evidence shall be in the English language. Any written evidence originally in another language shall be submitted in English translation accompanied by the original or true copy thereof. The parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, without breach of this Section and without any abridgement of the powers of the arbitrators.
25. Equitable Relief. In any claim for equitable relief, each party acknowledges that a breach by the other party of this Agreement may cause the non-breaching party irreparable harm, for which an award of damages would not be adequate compensation and, in the event of such a breach or threatened breach, the non-breaching party shall be entitled to equitable relief, including orders for preliminary or permanent injunctions, specific performance, and any other relief that may be available from any court, and the parties hereby waive any requirement for the securing or posting of any bond or the showing of actual monetary damages in connections with such relief. These remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available under this Agreement at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.
26. Notices. Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be: (a) delivered in person; (b) sent by certified mail, return receipt requested; or (c) emailed to such address as provided for in the Order. Either party may change its address for notice by notice to the other party given in accordance with this Section. All notices shall be deemed given when received or if mailed as provided for above, no later than three (3) business days following the date of such mailing.
27. Severability. If any term or provision of the Order is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of the Order or invalidate or render unenforceable such term or provision in any other jurisdiction.