Multilink Supplier/Vendor Standard Terms and Conditions
The following are Multilink's standard terms and conditions, which shall apply to all future Purchase Orders, unless Multilink and Supplier have entered into a separate written agreement. Please retain a copy for your files, unless otherwise notified to the contrary. These terms and conditions do not take precedence over any existing Multilink contract.
Multilink requires a Purchase Order to be issued to commit and pay for delivery of Goods or Services. Invoices submitted to Multilink without a Purchase Order number referenced will be returned to Supplier unpaid by Multilink.
As used herein, "Supplier" includes Supplier, its subsidiaries, and affiliates; "Multilink" includes Multilink, Inc. and its subsidiaries and affiliates. Supplier and Multilink hereby agree as follows:
SERVICES & DELIVERABLES
Supplier agrees to perform the services ("Services") and/or provide the goods or Service deliverables (collectively referred to as "Goods"), described in any purchase order, in accordance with the applicable purchase order, scope of work and with these Terms and Conditions ("Agreement"). Upon acceptance of a purchase order, shipment of Goods or commencement of a Service, Supplier shall be bound by the provisions of this Agreement, including all provisions set forth on the face of any applicable purchase order, whether Supplier acknowledges or otherwise signs this Agreement or the purchase order, unless Supplier objects to such terms in writing prior to shipping Goods or commencing Services.
This writing does not constitute a firm offer within the meaning of Section 1302.08 of the Ohio Revised Code (UCC 2-205) and may be revoked at any time prior to acceptance. This Agreement may not be added to, modified, superseded, or otherwise altered, except by writing signed by an authorized Multilink representative. Any terms or conditions contained in any acknowledgment, invoice, or other communication of Supplier, which are inconsistent with the terms and conditions herein, are hereby rejected. To the extent that this Agreement might be treated as an acceptance of Supplier's prior offer, such acceptance is expressly made on condition of assent by Supplier to the terms hereof and shipment of the Goods or beginning performance of any Services by Supplier shall constitute such assent. Multilink hereby reserves the right to reschedule any delivery or cancel any purchase order issued at any time prior to shipment of the Goods or prior to commencement of any Services. Multilink shall not be subject to any charges or other fees as a result of such cancellation.
Time is of the essence. Delivery of Goods shall be made pursuant to the schedule, via the carrier and to the place specified on the face of the applicable purchase order. Multilink reserves the right to return, shipping charges collect, all Goods received in advance of the delivery schedule. If no delivery schedule is specified, the order shall be filled promptly, and delivery will be made in accordance with the Multilink Routing Guide. If no method of shipment is specified in the purchase order, Supplier shall use the Multilink Routing Guide. In the event Supplier fails to deliver the Goods within the time specified, Multilink may, at its option, decline to accept the Goods and terminate the Agreement or may demand its allocable fair share of Supplier's available Goods and terminate the balance of the Agreement. Supplier shall package all items in suitable containers to permit safe transportation and handling. Each delivered container must be labeled and marked to identify contents without opening and all boxes and packages must contain packing sheets listing contents. Multilink's purchase order number must appear on all shipping containers, packing sheets, delivery tickets and bills of lading.
IDENTIFICATION, RISK OF LOSS & DESTRUCTION 0F GOODS
Identification of the Goods shall occur in accordance with Section 1302.45 of the Ohio Revised Code (UCC 2a501). Supplier assumes all risk of loss until receipt by Multilink. Title to the Goods shall pass to Multilink upon Multilink's receipt of the Goods at the designated destination. If the Goods ordered are destroyed prior to title passing to Multilink, Multilink may at its option cancel the Agreement or require delivery of substitute Goods of equal quantity and quality. Such delivery will be made as soon as commercially practicable. If loss of Goods is partial, Multilink shall have the right to require delivery of the Goods not destroyed.
As full consideration for the performance of the Services, delivery of the Goods and the assignment of rights to Multilink as provided herein, Multilink shall pay Supplier (i) the amount agreed upon and specified in the applicable purchase order, or (ii) Supplier's quoted price on date of shipment (for Goods), or the date Services were started (for Services), whichever is lower. Applicable taxes and other charges such as shipping costs, duties, customs, tariffs, imposts, and government-imposed surcharges shall be stated separately on Supplier's invoice. Payment is made when Multilink's check is mailed to Supplier. Payment shall not constitute acceptance. All personal property taxes assessable upon the Goods prior to receipt by Multilink of Goods conforming to the purchase order shall be borne by Supplier. Supplier shall invoice Multilink for all Goods delivered and all Services performed. Each invoice submitted by Supplier must be provided to Multilink within ninety (90) days of completion of the Services or delivery of Goods and must reference the applicable purchase order, and Multilink reserves the right to return all incorrect invoices. Multilink will receive a 2% discount of the invoiced amount for all invoices that are submitted more than ninety (90) days after completion of the Services or delivery of the Goods. Unless otherwise specified on the face of a purchase order, Multilink shall pay the invoiced amount within sixty (60) days after receipt of a correct invoice. Supplier will receive no royalty or other remuneration on the production or distribution of any products developed by Multilink or Supplier in connection with or based on the Goods or Services provided.
Multilink shall have a reasonable time after receipt of Goods or Service deliverables and before payment to inspect them for conformity hereto, and Goods received prior to inspection shall not be deemed accepted until Multilink has run an adequate test to determine whether the Goods conform to the specifications hereof, use of a portion of the Goods for the purpose of testing shall not constitute an acceptance of the Goods. If Goods tendered do not wholly conform with the provisions hereof, Multilink shall have the right to reject such Goods. Nonconforming Goods will be returned to Supplier freight collect and risk of loss will pass to Supplier upon Multilink's delivery to the common carrier.
Multilink is interested only in the Goods or Services obtained under this Agreement. The manner and means of providing the Goods or Services are subject to Supplier's sole control. Supplier is an independent contractor for all purposes, without express or implied authority to bind Multilink by contract or otherwise. Neither Supplier nor its employees, agents, or subcontractors ("Supplier's Assistants") are agents or employees of Multilink, and therefore are not entitled to any employee benefits of Multilink, including but not limited to, any type of insurance. Supplier shall be responsible for all costs and expenses incident to performing its obligations under this Agreement and shall provide Supplier's own supplies and equipment.
Services: Supplier represents and warrants that all Services shall be completed in a professional, workmanlike manner, with the degree of skill and care that is required by current, good, and sound professional procedures. Further, Supplier represents and warrants that the Services shall be completed in accordance with applicable specifications and shall be correct and appropriate for the purposes contemplated in this Agreement. Supplier represents and warrants that the performance of Services under this Agreement will not conflict with, or be prohibited in any way by, any other agreement or statutory restriction to which Supplier is bound.
Goods: Supplier warrants that all Goods provided will be new and will not be used or refurbished. Supplier warrants that all Goods delivered shall be free from defects in materials and workmanship and shall conform to all applicable specifications for a period of fifteen (15) months from the date of delivery to Multilink or for the period provided in Supplier's standard warranty covering the Goods, whichever is longer. Supplier hereby agrees that it will make spare parts available to Multilink for a period of five (5) years from the date of shipment at Suppliers then current price, less applicable discounts. Additionally, Goods purchased shall be subject to all written and oral express warranties made by Supplier's agents, and to all warranties provided for by the Ohio Revised Code. All warranties shall be construed as conditions as well as warranties and shall not be exclusive. Supplier shall furnish to Multilink Supplier's standard warranty and service guaranty applicable to the Goods. All warranties and Service guaranties shall run both to Multilink and to its customers.
If Multilink identifies a warranty problem with the Goods during the warranty period, Multilink will promptly notify Supplier of such problems and will return the Goods to Supplier, at Supplier's expense. Within five (5) business days of receipt of the returned Goods, Supplier shall, at Multilink's option, either repair or replace such Goods, or credit Multilink's account for the same. Replacement and repaired Goods shall be warranted for the remainder of the warranty period or six (6) months, whichever is longer.
Multilink is interested only in the Goods or Services obtained under this Agreement. The manner and means of providing the Goods or Services are subject to Supplier's sole control. Supplier is an independent contractor for all purposes, without express or implied authority to bind Multilink by contract or otherwise. Neither Supplier nor its employees, agents, or subcontractors ("Supplier's Assistants") are agents or employees of Multilink, and therefore not entitled to any employee benefits of Multilink, including but not limited to, any type of insurance. Supplier shall be responsible for all costs and expenses incident to performing its obligations under this Agreement and shall provide Supplier's own supplies and equipment.
SUPPLIER RESPONSIBLE FOR TAXES AND RECORDS
Supplier shall be solely responsible for filing the appropriate federal, state, and local tax forms, including, without limitation, a Schedule C, or a Form 1020, and paying all such taxes or fees, including estimated taxes and employment taxes, due with respect to Supplier's receipt of payment under this Agreement. Supplier further agrees to provide Multilink: with reasonable assistance in the event of a government audit. Multilink shall have no responsibility to pay or withhold from any payment to Supplier under this Agreement, any federal, state, or local taxes or fees. Multilink will regularly report amounts paid to Supplier by filing Form 1099-MISC with the Internal Revenue Service.
Supplier shall be solely responsible for maintaining and requiring Supplier's Assistants to maintain such adequate health, auto, workers' compensation, unemployment compensation, disability, liability, and other insurance, as is required by law or as is the common practice in Supplier's and Supplier's Assistants' trades or businesses, whichever affords greater coverage. Upon request, Supplier shall provide Multilink with certificates of insurance or evidence of coverage before commencing performance under this Agreement. Supplier shall provide adequate coverage for any Multilink property under the care, custody or control of Supplier or Supplier's Assistants.
Supplier shall indemnify, hold harmless, and at Multilink's request, defend Multilink, its officers, directors, customers, agents and employees, against all claims, liabilities, damages, losses and expenses, including attorneys' fees and cost of suit arising out of or in any way connected with the Goods or Services provided under this Agreement, including, without limitation, (i) any claim based on the death or bodily injury to any person, destruction or damage to property, or contamination of the environment and any associated cleanup costs, (ii) Supplier failing to satisfy the Internal Revenue Service's guidelines for an independent contractor, (iii) any claim based on the negligence, omissions or willful misconduct of Supplier or any Supplier's Assistants, and (iv) any claim by a third party against Multilink alleging that the Goods or Services, the results of such Services, or any other products or processes provided under this Agreement, infringe a patent, copyright, trademark, trade secret or other proprietary right of a third party, whether such are provided alone or in combination with other products, software or processes. Supplier shall not settle any such suit or claim without Multilink's prior written approval. Supplier agrees to pay or reimburse all costs that may be incurred by Multilink in enforcing this indemnity, including attorneys' fees.
Should Multilink's use, or use by its distributors, subcontractors or customers, of any Goods or Services purchased from Supplier be enjoined, be threatened by injunction, or be the subject of any legal proceeding, Supplier shall, at is sole cost and expense, either (a) substitute fully equivalent non-infringing Goods or Services; (b) modify the Goods or Services so that they no longer infringe but remain fully equivalent in functionality; (c) obtain for Multilink, its distributors, subcontractors or customers the right to continue using the Goods or Services; or (d) if none of the foregoing is possible, refund all amounts paid for the infringing Goods or Services.
Supplier will acquire knowledge of Multilink Confidential Information (as defined below) in connection with its performance hereunder and agrees to keep such Multilink Confidential Information in confidence during and following termination or expiration of this Agreement. "Multilink Confidential Information" includes but is not limited to all information, whether written or oral, in any form, including without limitation, information relating to the research, development, products, methods of manufacture, trade secrets, business plans, customers, vendors, finances, personnel data, Work Product (as defined herein) and other material or information considered proprietary by Multilink relating to the current or anticipated business or affairs of Multilink which is disclosed directly or indirectly to Supplier. In addition, Multilink Confidential Information means any third party's proprietary or confidential information disclosed to Supplier in the course of providing Services or Goods to Multilink. Multilink Confidential Information does not include any information (i) which Supplier lawfully knew without restriction on disclosure before Multilink disclosed it to Supplier, (ii) which is now or becomes publicly known through no wrongful act or failure to act of Supplier, (iii) which Supplier developed independently without use of the Multilink Confidential Information, as evidenced by appropriate documentation, or (iv) which is hereafter lawfully furnished to Supplier by a third party as a matter of right and without restriction on disclosure. In addition, Supplier may disclose Confidential Information which is required to be disclosed pursuant to a requirement of a government agency or law so long as Supplier provides prompt notice to Multilink of such requirement prior to disclosure.
Supplier agrees not to copy, alter, or directly or indirectly disclose any Multilink Confidential Information. Additionally, Supplier agrees to limit its internal distribution of Multilink Confidential Information to Supplier's Assistants who have a need to know, and to take steps to ensure that the dissemination is so limited, including the execution by Supplier's Assistants of nondisclosure agreements with provisions substantially similar to those set forth herein. ln no event will Supplier use less than the degree of care and means that it uses to protect its own information of like kind, but in any event not less than reasonable care to prevent the unauthorized use of Multilink Confidential Information.
Supplier further agrees not to use the Multilink Confidential Information except in the course of performing hereunder and will not use such Multilink Confidential Information for its own benefit or for the benefit of any third party. The mingling of the Multilink Confidential Information with information of Supplier shall not affect the confidential nature or ownership of the same as stated hereunder. Supplier agrees not to design or manufacture any products which incorporate Multilink Confidential Information. All Multilink Confidential Information is and shall remain the property of Multilink. Upon Multilink’s written request or the termination of this Agreement, Supplier shall return, transfer, or assign to Multilink all Multilink Confidential Information, including all Work Product, as defined herein, and all copies thereof.
OWNERSHIP OF WORK PRODUCT
For purposes of this Agreement, "Work Product" shall include, without limitation, all designs, discoveries, creations, works, devices, masks, models, work in progress, Service deliverables, inventions, products, computer programs, procedures, improvements, developments, drawings, notes, documents, business processes, information and materials made, conceived, or developed by Supplier alone or with others which result from or relate to the Services performed hereunder. Standard Goods manufactured by Supplier and sold to Multilink without having been designed, customized, or modified for Multilink do not constitute Work Product. All Work Product shall always be and remain the sole and exclusive property of Multilink. Supplier hereby agrees to irrevocably assign and transfer to Multilink and does hereby assign and transfer to Multilink all its worldwide right, title, and interest in and to the Work Product including all associated intellectual property rights. Multilink will have the sole right to determine the treatment of any Work Product, including the right to keep it as trade secret, execute and file patent applications on it, to use and disclose it without prior patent application, to file registrations for copyright or trademark in its own name or to follow any other procedure that Multilink deems appropriate. Supplier agrees: (a) to disclose promptly in writing to Multilink all Work Product in its possession; (b) to assist Multilink in every reasonable way, at Multilink's expense, to secure, perfect, register, apply for, maintain, and defend for Multilink's benefit all copyrights, patent rights, mask work rights, trade secret rights, and all other proprietary rights or statutory protections in and to the Work Product in Multilink's name as it deems appropriate; and (c) to otherwise treat all Work Product as Multilink Confidential Information as described above. These obligations to disclose, assist, execute, and keep confidential survive the expiration or termination of this Agreement. All tools and equipment supplied by Multilink to Supplier shall remain the sole property of Multilink.
Supplier will ensure that Supplier's Assistants appropriately waive all claims and assign to Multilink any and all rights or any interests in any Work Product or original works created in connection with this Agreement. Supplier irrevocably agrees not to assert against Multilink or its direct or indirect customers, assignees, or licensees any claim of any intellectual property rights of Supplier affecting the Work Product.
Multilink will not have rights to any works conceived or reduced to practice by Supplier which were developed entirely on Supplier's own time without using equipment, supplies, facilities or trade secret or Multilink Confidential Information, unless (i) such works relate to Multilink's business, or Multilink's actual or demonstrably anticipated research or development, or (ii) such works result from any Services performed by Supplier for Multilink.
NONINTERFERENCE WITH BUSINESS
During and after the termination or expiration of this Agreement, Supplier agrees not to interfere with the business of Multilink in any manner, and further agrees not to solicit or induce any employee or independent contractor to terminate or breach an employment, contractual or other relationship with Multilink.
Multilink may terminate this Agreement upon written notice to Supplier if Supplier fails to perform or otherwise breaches this Agreement, files a petition in bankruptcy, becomes insolvent, or dissolves. In the event of such termination, Multilink shall pay Supplier for the portion of the Services satisfactorily performed and those conforming Goods delivered to Multilink through the date of termination, less appropriate offsets, including any additional costs to be incurred by Multilink.
Multilink may terminate this Agreement, or any Services, for any other reason upon thirty (30) days' written notice to Supplier. Supplier shall cease to perform Services and/or provide Goods under this Agreement on the date of termination specified in such notice. In the event of such termination, Multilink shall be liable to Supplier only for those Services satisfactorily performed and those conforming Goods delivered to Multilink through the date of termination, less appropriate offsets.
Supplier may terminate this Agreement upon written notice to Multilink, if Multilink fails to pay Supplier within sixty (60) days after Supplier notifies Multilink in writing that payment is past due.
Upon the expiration or termination of this Agreement for any reason: (a) each party will be released from all obligations to the other arising after the date of expiration or termination, except for those which by their terms survive such termination or expiration; and (b) Supplier will promptly notify Multilink of all Multilink Confidential Information or any Work Product in Supplier's possession and, at the expense of Supplier and in accordance with Multilink's instructions, will promptly deliver to Multilink all such Multilink Confidential Information and/or Work Product.
Without limiting any right of cancellation for the Seller’s breach or default, the Buyer reserves the right to cancel this order or any portion of the same if for any reason delivery is not made or cannot be made when and as specified, time being of the essence hereof and to charge the Seller for any loss entailed. Immediate notice of any possible or actual delay in delivery at variance with that specified on the face of the order must be communicated to the Buyer well in advance of the due date. The Buyer’s right of cancellation includes without limitation the right to cancel future installments in the event of failure or delay in delivery, or non-conformity, of any installment if deemed by the Buyer to substantially impair the value of the whole contract.
If Supplier breaches this Agreement, Multilink shall have all remedies available by law and at equity. For the purchase of Goods, Supplier's sole remedy in the event of breach of this Agreement by Multilink shall be the right to recover damages in the amount equal to the difference between market price at the time of breach and the purchase price specified in the Agreement. No alternate method of measuring damages shall apply to this transaction. Supplier shall have no right to resell Goods for Multilink's account in the event of wrongful rejection, revocation of acceptance, failure to make payment or repudiation by Multilink and any resale so made shall be for the account of Supplier.
Multilink shall not be liable for any failure to perform including failure to (i) accept performance of Services or, (ii) take delivery of the Goods as provided caused by circumstances beyond its control which make such performance commercially impractical including, but not limited to, acts of God, fire, flood, acts of war, government action, accident, labor difficulties or shortage, inability to obtain materials, equipment, or transportation. In the event Multilink is so excused, either party may terminate the Agreement and Multilink shall at its expense and risk, return any Goods received to the place of shipment.
If any provision of this Agreement shall be deemed to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
LIMITATION OF LIABILITY
In no event shall Multilink be liable to supplier or supplier’s assistants, or any third party for any incidental, indirect, special, or consequential damages arising out of, or in connection with this agreement, whether or not Multilink was advised of the possibility of such damage.
Supplier may not assign this Agreement or any of its rights or obligations under this Agreement without the prior written consent of Multilink. Any assignment or transfer without such written consent shall be null and void. This Agreement shall insure to the benefit of, and be binding upon, the successors and assigns of Multilink without restriction. A waiver of any default hereunder or of any term or condition of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or any other term or condition.
This is not an exclusive agreement. Multilink is free to engage others to perform Services or provide Goods the same as or similar to Supplier's.
Except for Purchase Orders, which may be sent by regular mail, facsimile transmission, or electronically transmitted, all notices, and other communications hereunder shall be in writing, and shall be addressed to Supplier or to an authorized Multilink representative, and shall be considered given when (a) delivered personally, (b) sent by confirmed telex or facsimile, (c) sent by commercial overnight courier with written verification receipt, or (d) three (3) days after having been sent, postage prepaid, by first class or certified mail.
SURVIVAL OF OBLIGATIONS
Any obligations and duties which by their nature extend beyond the expiration or termination of this Agreement shall survive the expiration or termination of this Agreement.
This Agreement shall be construed in accordance with, and disputes shall be governed by, the laws of the State of Ohio, excluding its conflict of law rules. The Lorain County Court of Common Pleas or the United States District Court for the Northern District of Ohio shall have jurisdiction and venue over all controversies arising out of, or relating to, this Agreement. The applicability of the UN Convention on Contracts for the International Sale of Goods is hereby expressly waived by the parties and it shall not apply to the terms and conditions of this Agreement.
ENTIRE AGREEMENT MODIFICATION
This Agreement is the complete, final, and exclusive statement of the terms of the agreement between the parties and supersedes all other prior and contemporaneous negotiations and agreements, whether oral or written, between them relating to the subject matter hereof. This Agreement may not be varied, modified, altered, or amended except in writing, including a purchase order or a change order issued by Multilink, signed by the parties. The terms and conditions of this Agreement shall prevail notwithstanding any variance with the terms and conditions of any acknowledgment or other document submitted by Supplier. Notwithstanding the foregoing, this Agreement will not supersede or take the place of any written agreement which is signed by both parties and covers the same subject matter as this Agreement or its related purchase orders.
COMPLIANCE WITH LAWS
Supplier shall comply fully with all applicable federal, state, and local laws in the performance of this Agreement including, but not limited to, all applicable employment, tax, export control and environmental laws.
If Goods include hazardous materials, Supplier represents and warrants that Supplier understands the nature of any hazards associated with the manufacture, handling, and transportation of such hazardous materials.
Upon Multilink's request, Supplier will promptly provide Multilink with a statement of origin for all Goods and United States Customs documentation for Goods wholly or partially manufactured outside of the United States.
Supplier acknowledges and agrees that the obligations and promises of Supplier under this Agreement are of a unique, intellectual nature giving them value. Supplier's breach of any of the promises contained in this Agreement will result in irreparable and continuing damage to Multilink for which there will be no adequate remedy at law and, in the event of such breach, Multilink will be entitled to seek injunctive relief, or a decree of specific performance.
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