MULTILINK, INC.
TERMS AND CONDITIONS OF PURCHASE
- ORDER AND ACCEPTANCE. These terms and conditions apply to and are incorporated into the purchase order issued by Multilink, Inc. (“Buyer”) to Seller (collectively, with any other documents referenced or incorporated herein or therein by reference, the “Order”). For purposes of the Order, “Seller” means the person or entity to whom the Order is issued, “Goods” means the materials, products, supplies, equipment, and other goods that are described in the Order, including any related design, assembly, and manufacturing services reasonably inferable therefrom as being required to produce the intended result. This Order expressly includes and incorporates by reference all specifications, schedules, and other documents attached hereto or referenced herein. If there is a conflict within or among any of the documents comprising the Order, the provision imposing the higher quality, greater quantity, or greater duty or obligation on Seller, or granting greater rights or remedies to Buyer, shall govern. Seller’s execution of the Order, commencement of work on the Goods, or shipment or provision of any part of the Goods, whichever occurs first, shall constitute Seller’s unconditional acceptance of the Order, including these terms, without any additional or different terms. Any reference in the Order to Seller’s offer, quotation, or proposal is solely for the purpose of incorporating the description and specifications of the Goods described therein and only to the extent they do not conflict with the Order. The Order is expressly limited to, and expressly conditional on, Seller’s acceptance of these terms and conditions of purchase. Buyer expressly objects to Seller’s terms and conditions of sale and any additional or different terms Seller proposes. Any additional or different terms in Seller’s documents are deemed to be material alterations, and Buyer’s issuance of the Order constitutes Buyer’s express objection to and rejection of such terms without need for further notice.
- Seller shall furnish all Goods in accordance with the Order and any schedules included therein. Time is of the essence of Seller’s performance of this Order. Should any event delay or threaten to delay Seller’s timely delivery of the Goods, Seller shall immediately give Buyer written notice thereof. Seller shall hold harmless and indemnify Buyer for any damages, costs, or liabilities incurred by Buyer resulting from Seller’s failure to deliver the Goods within the time required. Seller will be responsible to Buyer for the acts and omissions of Seller’s employees and subcontractor(s).
- Unless otherwise specified in the Order, shipping terms shall be F.O.B. origin. Delivery must be made in accordance with the delivery schedule(s) specified in the Order. Buyer may reject or return at Seller’s expense any Goods shipped in excess of the ordered amount or before the time specified in the Order or defer payment for advance deliveries until the specified delivery date.
- Prices set forth on the Order shall remain fixed for the duration of the Order unless expressly noted otherwise. If Buyer is prohibited by law from remitting payments to Seller unless Buyer deducts or withholds taxes therefrom on behalf of the local taxing jurisdiction, then Buyer shall duly withhold such taxes and shall remit the remaining net invoice amount to Seller. Any costs not described on the Order will not be paid or reimbursed without Buyer’s prior written approval. Buyer reserves the right to inspect and audit Seller’s records to ensure compliance with the Order. If Seller is found to be noncompliant in any way with any provision of the Order, Seller shall reimburse Buyer for all costs associated with the audit, along with any overcharges discovered, within thirty (30) days of Buyer’s demand therefor.
- INVOICING AND PAYMENT. Seller shall invoice Buyer upon complete delivery of the Goods or in accordance with any invoicing schedule set forth in the Order. Seller shall invoice Buyer no later than sixty (60) days after shipment of Goods and waives its right to payment of any invoices submitted after such period. Buyer shall pay undisputed amounts invoiced within thirty (30) days of Buyer’s receipt of Seller’s complete and accurate invoice. Buyer may offset any amount that Seller owes to Buyer under the Order against any amount that Buyer owes to Seller.
- Buyer may inspect and test all Goods at all reasonable times in such manner as shall not unreasonably hinder or delay Seller’s performance. All Goods shall be subject to Buyer’s inspection, testing, approval, and acceptance notwithstanding any prior payment for such Goods. Goods rejected by Buyer as defective or not conforming to the Order may be returned to Seller at Seller’s risk of loss and expense and, at Buyer’s request, shall immediately be repaired or replaced.
- Seller warrants that title to the Goods, free and clear of all liens and encumbrances, shall pass to Buyer upon delivery to the specified location. Seller further warrants that the Goods shall (a) be merchantable and fit for the purpose for which the Goods are intended, (b) not infringe on any third party’s personal, contractual, or proprietary rights, (c) be new and of the grade and quality required, (d) comply with the Order and all applicable Laws, (e) conform to all applicable samples, drawings, descriptions, and specifications furnished or published by Seller and to any other agreed specifications, and (f) be free from defects in workmanship and material. If the Goods are covered by any manufacturers’ warranties, Seller shall transfer such warranties to Buyer. If, within one (1) year of Buyer’s acceptance of the Goods, Buyer notifies Seller that any of the Goods do not conform to the foregoing warranties, Seller shall at its own cost, and at Buyer’s option, promptly repair, replace, or refund the amount paid for the non-conforming Goods and shall pay to Buyer all costs and damages of any kind incurred by Buyer and arising from Seller’s breach of the foregoing warranties.
- DEFAULT; TERMINATION. Seller shall be in default if it: (a) fails to furnish the Goods in strict compliance with the Order, (b) breaches any provision of the Order, (c) becomes insolvent or proceedings are instituted by or against it under any provisions of any federal or state bankruptcy or insolvency laws, or (d) knowingly furnishes any materially false or misleading statement, representation, warranty, or certification in connection with the Order. If Seller fails to cure such default or provide assurance reasonably acceptable to Buyer of such cure within three (3) days of receiving notice thereof from Buyer, Buyer may, without prejudice to any other right or remedy it may have, (i) procure the Goods from another seller and deduct the cost thereof from any amounts then or thereafter due to Seller and/or, at Buyer’s option, (ii) terminate the Order; provided, however, that if Seller’s default is incapable of cure, Buyer may exercise the foregoing rights immediately upon written notice without providing Seller an opportunity to cure. If the costs incurred by Buyer in exercising the foregoing rights exceed the unpaid balance otherwise due Seller, Seller shall promptly pay the difference to Buyer. Buyer shall be entitled to recover from Seller any actual damages, costs, expenses, or losses, including but not limited to loss of profits and reasonable attorneys’ fees, incurred by Buyer due to Seller’s default.
Buyer shall have the right at any time, upon written notice to Seller, to terminate this Order or any part hereof, or to delay or suspend the provision of all or any part of the Goods, without cause or for any reason or no reason. Upon such termination or suspension, Seller may recover, as its sole remedy, payment for Goods properly furnished prior to the termination.
Upon receipt of notice of termination or suspension for any reason, Seller shall (1) discontinue provision of the terminated or suspended Goods in accordance with Buyer’s instructions, (2) thereafter furnish only such portion of the Goods not terminated, and (3) terminate all existing orders and subcontracts and not place further orders or enter into further subcontracts for Goods. Subcontractor shall not be entitled to payment for any Goods furnished after the date of termination unless otherwise directed by Buyer. Under no circumstances shall Seller be entitled to anticipated profits, lost profits, or overhead for Goods that remain to be furnished, or for storage charges, indirect expenses, or other termination costs or expenses, or for any consequential, incidental, or special damages arising from such termination or suspension.
- To the fullest extent permitted by law, Seller shall indemnify, defend, and hold harmless Buyer and its employees, officers, agents, representatives, and customers for, against, and from any and all claims, demands, liens, penalties, causes of action of whatever nature, damages of whatever kind or description (including any special, incidental, and consequential damages), costs, and expenses (including reasonable attorneys’ fees, whether incurred in defending claims or in enforcing the Order) (the foregoing, collectively, “Losses”) to the extent arising from or relating to the Goods, Seller’s negligence or intentional misconduct, Seller’s default or breach of the Order, any actual or alleged infringement of any third party intellectual property right arising out of the use or sale of the Goods, or Seller’s breach of any warranty or representation. The scope of this obligation applies to the acts or omissions of Seller and its agents, employees, subcontractors, suppliers, and anyone for whom Seller is legally responsible. The scope of Seller’s obligations under this paragraph shall not be limited in any manner whatsoever by any immunity or limitations of liability afforded to Seller under workers’ compensation laws, constitutions, or any employee benefit acts.
- Seller shall secure and maintain for the duration of its performance under this Order, at its sole cost and expense, Commercial General Liability Insurance covering itself and its employees and agents with minimum limits of not less than $1,000,000 per occurrence and $2,000,000 annual aggregate or such higher coverage limits as may be required by the Order. Should this Order require the delivery of a service, even if implied, the General Liability Coverage requirement is broadened and Seller must maintain coverage which includes (a) workers’ compensation and employer’s liability insurance to the full extent required by applicable Laws; (b) automobile liability insurance covering owned, non-owned, and leased vehicles with limits not less than $1,000,000 combined single limit; and (c) excess or umbrella liability of $1,000,000 per occurrence and $2,000,000 aggregate. Upon Buyer’s request, Seller shall provide Buyer with certificates of insurance evidencing the coverages and amounts set forth in this paragraph. The commercial general liability policy shall name Buyer as an additional insured and shall be primary and non-contributory to any liability insurance carried by Buyer. Seller’s certificate(s) of insurance shall contain a provision that the coverage afforded under the policy(ies) will not be canceled without at least thirty (30) days’ prior written notice to Buyer. All policies shall be endorsed to provide a waiver of subrogation in favor of Buyer. No policy of insurance naming Buyer as an additional insured shall contain any exclusion or prohibition against first party claims or claims by any party named as an additional insured. Seller’s provision of insurance shall in no event relieve Seller of liability or limit any such liability for defective or non-conforming Goods or damage resulting therefrom, Seller’s warranty or indemnity obligations, or any other of Seller’s obligations under the Order.
- OWNERSHIP. All data, documents, designs, samples, tooling, and molds developed, fabricated, or prepared by Seller, either solely or jointly with others, in connection with Seller’s performance under the Order (any of the foregoing, “Work Product”) shall be and remain the sole and exclusive property of Buyer. Seller shall deliver to Buyer all Work Product upon completion of the Order or at any time requested by Buyer. If Buyer furnishes or discloses to Seller any specifications, drawings, information, samples, goods, or designs in connection with the Order (any of the foregoing, “Buyer’s Property”), Seller hereby acknowledges that Buyer retains any and all rights, including intellectual property rights, in such Buyer’s Property and that its disclosure to Seller does not constitute a transfer or assignment of any such rights, except that Buyer grants to Seller a limited license to use such Buyer’s Property solely and exclusively for purposes of performing Seller’s obligations under the Order. Except as specifically agreed in writing by Buyer, Seller shall treat as confidential and not disclose any Buyer’s Property or any other data or information that is disclosed to Seller in connection with, or that is developed or acquired as a result of, Seller’s performance under the Order. Seller shall not use any Buyer’s Property except for purposes of performing the Order. Seller shall be responsible for any breach of this provision by any of its officers, directors, shareholders, employees, consultants, agents, and subcontractors. Seller acknowledges and agrees that its breach of any provision of this Section 11 (Ownership) will cause serious and irreparable injury to Buyer and that Buyer’s remedies at law will be inadequate. As such, if Seller breaches or threatens to breach any such provision, Buyer shall be entitled to seek injunctive relief to enforce the terms hereof without proof of actual damages, and Seller waives any requirement for the securing or posting of any bond in connection with such remedy. Such injunctive relief shall be in addition to and in no way in limitation of any remedies or rights to recover damages that Buyer may have at law, in equity, or under the Order. Seller further agrees to pay all costs and expenses, including without limitation, attorneys’ fees, court costs, and any other related fees and/or costs, incurred by Buyer in enforcing this Agreement.
- COMPLIANCE WITH LAWS. Seller shall comply with, and shall ensure that the Goods and Services comply with, all applicable laws, ordinances, codes, rules, and regulations of federal, state, county, and/or municipal governmental entities having jurisdiction over Seller, the Goods, or the Services, and any other standards, rules, and regulations that are incorporated by reference into the Order (collectively, “Laws”), including but not limited to those relating to the manufacture, sale, or transportation of the Goods, occupational health and safety, discrimination in employment, the environment, wage and hour compliance, and applicable building codes. Seller shall establish appropriate procedures and controls to ensure that no Goods or Services will be manufactured or furnished by any worker who is not legally eligible to perform such services or employment. Seller shall maintain, for the duration of the Order, all valid licenses and certificates required for its performance under the Order.
- The relationship of Buyer and Seller is that of independent contractors, and Seller is not an agent or employee of Buyer. The Order contains the entire understanding between Buyer and Seller and supersedes all prior and contemporaneous agreements with respect to the subject matter thereof. No modification of the Order shall be effective unless made by a writing signed by Buyer. Seller agrees to execute such further instruments and documents as may be reasonably necessary or proper to effectuate the terms of the Order. All rights granted to Buyer hereunder shall be in addition to, and not in lieu of, any other rights and remedies arising by operation of law or in equity. If any provision of the Order is held to be invalid or unenforceable by an adjudicator of competent jurisdiction, then such provision will be severed or modified to the minimum extent necessary to comport with applicable Law, and all remaining provisions shall remain in full force and effect. The Order shall be governed, construed, and enforced according to the laws of the State of Ohio, without regard to any choice or conflict of law provision or rule (whether of the State of Ohio or any other jurisdiction) that would cause the application of laws of any jurisdiction other than the State of Ohio. Any action arising under the Order will be brought in the state or federal courts located in Cuyahoga County, Ohio, and Seller hereby submits and consents to the exclusive jurisdiction of such courts. Seller may not assign the Order or any rights therein, in whole or in part, without Buyer’s prior written consent. Buyer’s failure to enforce at any time any provision hereof shall not be construed to be a waiver of such provision or of the right of Buyer at any time to enforce such provision. The Order shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.
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