TERMS AND CONDITIONS: These terms and conditions control the purchase
of goods, software and services set forth in this Purchase Order ("Order") and constitute
the full and complete agreement between Buyer and Seller with respect thereto. Any
prior offer made by Seller to Buyer regarding the subject matter hereof is rejected.
In the event of any conflict between any typed or handwritten provisions that are
part of this Order, including any exhibits attached hereto, and the pre-printed
terms and conditions set forth herein, the typed or handwritten provisions shall
control. These Terms and Conditions may not be waived or modified except in writing
ACKNOWLEDGMENT AND ACCEPTANCE: The issuance of this Order to Seller
constitutes an offer expressly limited to the terms contained herein. Seller's acceptance
is expressly made conditional on assent to the terms hereof. Any addition, change
or deletion in these terms by Seller in Seller's acknowledgment form or otherwise
communicated to Buyer shall be deemed a material alteration and is expressly objected
to and rejected by Buyer. Buyer reserves the right to revoke this offer at any time
prior to acceptance, which acceptance shall take place only by (i) the return of
an executed and unmodified copy of this Order, or (ii) Seller's delivery of conforming
goods to Buyer and Buyer's acceptance thereof. Unless Seller accepts this offer
within twenty (20) days of issue, Buyer reserves the right to revoke this offer
and/or reject any acceptance by Seller.
TECHNICAL INFORMATION AND EQUIPMENT: All technical specifications,
drawings, notes, instructions or information referred to on the face of this Order
or contained in attachments or exhibits hereto are deemed to be incorporated by
reference. Seller expressly acknowledges that it has received and read said referenced
information. All such materials, together with all tools, equipment and parts furnished
by Buyer, shall remain the property of Buyer and shall be used only for work performed
for Buyer. Seller, at Buyer's request, shall return to Buyer (i) all written materials
delivered to Seller, (ii) any copies thereof, (iii) all written materials generated
by Seller pursuant to the performance of this Order, and (iv) all tools, equipment
and parts furnished by Buyer.
PRICE AND DELIVERY: Seller shall furnish the goods or services
in accordance with the price and delivery terms stated herein. TIME AND RATE OF
DELIVERY ARE OF THE ESSENCE. Unless otherwise stated, the price terms contained
herein include all costs or charges of any kind that will by paid by Buyer, and
Buyer shall not be liable for any other costs or charges, all of which shall be
borne by Seller, including, without limitation, charges for inspection, packaging
and shipping; all federal, state and municipal sales, use and excise taxes and any
customs duties. Buyer may return or store at Seller's expense any goods delivered
more than one (1) week in advance of the delivery date. Seller warrants that the
prices charged for goods or services covered by this Order will be as low as the
lowest prices charged by Seller to customers purchasing goods or services of like
kind and quality. Seller shall notify Buyer immediately at such time as Seller has
knowledge of any impending material shortage, governmental regulation, labor dispute
or other event or impediment which could result in a delay in the delivery.
PACKAGING AND SHIPPING: Seller shall be responsible for packaging,
marking and shipping the goods in accordance with the terms hereof, good commercial
practices and all applicable laws. Each package shall be marked with handling instructions,
shipping information, Order number and part or item number. An itemized packing
list shall accompany each shipment. Buyer reserves the right to reject any shipment
not meeting these requirements.
F.O.B., RISK OF LOSS: F.O.B. point shall be Buyer's location unless
otherwise stated in writing by Buyer. Notwithstanding any prior inspection and F.O.B.
point, Seller shall bear all risk of loss until final inspection and acceptance
of the goods by Buyer at Buyer's location. Seller shall also bear all risk of loss
with respect to any goods rejected by Buyer.
PAYMENT: Seller shall issue invoices only upon delivery of the
goods or completion of services ordered by Buyer hereunder. Unless different payment
terms are specified on the face hereof, Buyer shall issue payment within forty-five
(45) days of its receipt of correct and conforming Seller invoice. Payment by Buyer
is contingent upon delivery by Seller of conforming goods or satisfactory completion
of services. Payment made for rejected goods or services shall be refunded by Seller
to Buyer within five business days of Buyer's request or, at Buyer's option, deducted
from any other payments then or thereafter due Seller from Buyer. In no event shall
Buyer be obligated to pay interest or penalties on any amounts due. Any attempt
by Seller to create a security interest in goods delivered hereunder in its favor
is expressly rejected by Buyer and shall be without effect.
SET-OFFS: Buyer shall have the right at any time to set off any
amount owing from Seller to Buyer, or Buyer's subsidiaries, against any amount due
and owing to Seller or any of Seller's subsidiaries, pursuant to this Order or any
other contractual agreement between Buyer and Seller or their respective subsidiaries
INSPECTION: Seller shall inspect all goods prior to shipment to
Buyer. Nonconforming goods may be rejected by Buyer and returned to Seller at Seller's
risk and expense for credit, rebate of paid purchase price, or replacement, at Buyer's
option. Payment before inspection shall not be deemed acceptance of nonconforming
goods or services.
WARRANTY: SELLER'S DELIVERY OF GOODS AND PERFORMANCE OF SERVICES
HEREUNDER SHALL CONSTITUTE A WARRANTY AT SUCH TIME: (1) THAT ALL GOODS ARE FREE
FROM DEFECTS IN DESIGN, MATERIAL AND IN WORKMANSHIP; (2) THAT ALL SERVICES ARE PERFORMED
IN A GOOD AND WORKMANLIKE MANNER; (3) THAT SELLER HAS GOOD TITLE TO THE GOODS AND
HAS CONVEYED SUCH TITLE TO BUYER FREE AND CLEAR OF ALL LIENS, CHARGES AND ENCUMBRANCES;
(4) THAT THE GOODS OR SERVICES CONFORM TO APPLICABLE SPECIFICATIONS, DRAWINGS, SAMPLES
OR OTHER DESCRIPTIONS REFERENCED HEREIN; (5) THAT THE GOODS OR SERVICES WILL FUNCTION
ACCURATELY AND WITHOUT INTERRUPTION BEFORE, DURING AND AFTER JANUARY 1, 2000, WITHOUT
ANY CHANGE ASSOCIATED WITH THE ADVENT OF A NEW CENTURY ; AND (6) THAT THE GOODS
ARE MERCHANTABLE AND FIT FOR THE PURPOSES INTENDED . Seller acknowledges that Buyer
has previously disclosed to Seller the purposes for which the goods are intended,
and that Buyer is relying on Seller to furnish suitable goods. All warranties shall
survive any inspection, delivery, acceptance, payment, expiration or earlier termination
of this Order and such warranties shall run to Buyer, its successors, assigns, customers
or users of its products.
SELLER'S ATTEMPTED LIMITATION OF LIABILITY: Any attempt by Seller
to disclaim any theory or grounds upon which Buyer, or successive purchasers of
the goods and services covered hereby (collectively, the "Purchasers"), might recover
against Seller is expressly rejected and is ineffective. Any attempt by Seller to
limit its liability by means of a "Force Majeure" or similar argument or term is
expressly rejected and is ineffective. Any attempt by Seller to disclaim any kind
or class of damages which the Purchasers might recover against Seller is expressly
rejected and is ineffective. Any attempt by Seller to establish by contract time
limitations periods within which the Purchasers are obligated to assert claims against
Seller is expressly rejected and is ineffective. Buyer and any successive purchasers
of the goods and services covered hereby retain and shall be entitled to assert
all rights and claims available to them at law or equity against Seller in respect
of the transactions subject to this Order.
INDEMNIFICATION: Seller shall indemnify, defend and hold Buyer,
its affiliates and licensees, and their respective directors, officers, employees
and agents (as applicable, the "Indemnitees"), harmless from and against any and
all demands, claims, losses, and liabilities of whatever kind or nature, including
attorneys' fees and costs, asserted against or suffered by an Indemnitee by reason
of, arising out of, or in any way related to, in whole or in part, the goods and
services covered by this Order, the preparation, processing, manufacture, construction,
completion, delivery and/or use thereof, or Seller's acts, omissions or negligence.
Without limitation, such obligation to indemnify shall exist with respect to claims
and demands relating to accidents, occurrences, injuries or losses, including, without
limitation, injuries to persons or property and economic losses, by reason of, arising
out of, or in any way related to, in whole or in part, the goods and services covered
by this Order or the preparation, processing, manufacture, construction, completion,
delivery and/or use thereof. Without limitation, such obligation to indemnify shall
exist with respect to claims and demands that: (1) any goods; (2) any part of such
goods; or (3) any combination of such goods, other hardware, and/or other software
wherein such infringement would not occur but for such goods being a part of such
combination, infringes on any patent, trademark, copyright, trade secret or other
intellectual property right, foreign or domestic. If, as the result of an action
as set forth above, the sale or use of any goods, or part thereof, is enjoined by
court order, Seller shall, at its expense, (a) procure for Buyer the right to continue
selling and/or using the goods, (b) replace or modify the goods with functionally-equivalent,
noninfringing goods (subject to Buyer's approval and satisfaction), or (c) return
the purchase price of each unit of goods in Buyer's inventory that Buyer is unable
to ship due to the injunction. The indemnity set forth in this paragraph shall apply
notwithstanding that the goods sold hereunder may have been produced by Seller in
compliance with specifications furnished by Buyer unless the goods cannot be furnished
in accordance with the specifications without infringing the intellectual property
as asserted in the action. Buyer does not have any obligation to hold Seller harmless
from any claim against Seller, its directors, officers, employees or agents, arising
out of compliance with Buyer's specifications.
CANCELLATION: Unless otherwise provided, Buyer may cancel this
Order in whole or in part upon notice at any time before scheduled shipping date.
Notwithstanding any provision to the contrary and in addition to any other remedy,
Buyer may cancel this Order in whole or in part upon notice in the event that: (1)
Seller fails to make delivery at the time provided; (2) Seller fails to comply with
any other term or condition of this Order or any other outstanding Order from Buyer
within ten (10) days of demand thereof; (3) a receiver or other similar officer
is appointed over any or all of Seller's property or assets; (4) Seller files a
voluntary petition in bankruptcy, or an involuntary petition in bankruptcy is filed
against Seller; (5) Seller merges with or is acquired by a third party; or (6) Seller
assigns, delegates or subcontracts this Order or any of its rights or obligations
hereunder without the prior written consent of Buyer. Upon Buyer's cancellation,
Seller shall deliver to Buyer such work in process or completed goods as Buyer may
request. Buyer shall have no liability to Seller beyond payment of any balance owing
for goods or services delivered to and accepted by Buyer prior to Seller's receipt
of the notice of termination, and for work in process and completed goods requested
by, delivered to, and accepted by, Buyer after Seller's receipt of notice of termination.
In no event shall Buyer be liable for consequential or incidental damages. Any attempt
by Seller to take an action listed in section (6) hereof shall be void and of no
force or effect.
CONFIDENTIAL INFORMATION AND ADVERTISING: Without prior written
consent of Buyer, Seller shall neither disclose to any person outside its employ,
nor use for purposes other than performance of this Order, any information pertaining
to the existence or terms of this Order including, but not limited to, the identity,
price, or volume of the goods or services purchased hereunder, and the drawings,
blueprints, descriptions or specifications which are part of or related to this
Order. Seller agrees that Buyer shall be entitled to enforce this section against
Seller by means of injunctive relief without the necessity of proving irreparable
TECHNOLOGY RIGHTS: Seller hereby assigns to Buyer all right, title
and interest in all inventions, trade secrets, patents, mask works, copyrights,
trademarks and other intellectual property developed by Seller pursuant to this
Order. Seller shall provide Buyer any assistance required to perfect such rights,
including any documents reasonably requested by Buyer.
LICENSE FOR ALL PURPOSES: In addition to any other licenses, express
or implied, in favor of Buyer, Seller's delivery of goods, software or services
under this Order confers upon Buyer a license under any intellectual property rights
of Seller to use the goods, software or services for all purposes, whether by combining
such goods with any other product available to Buyer (including products purchased
from Seller) or otherwise, and to sell the same.
DUTY DRAWBACK: Upon request of Buyer, Seller shall cooperate with
Buyer in seeking any duty drawback available to Buyer in connection with export
by Buyer of goods (1) imported by Seller and provided to Buyer under this Order,
or (2) incorporating or manufactured by Buyer from such goods. Without limitation,
Seller shall (1) provide all the information on the imported goods necessary to
complete the drawback claims to be filed by Buyer, including the U.S. Customs Service
entry numbers, dates of entry, quantities and description of goods, customs values,
and rates and amounts of customs duties paid by Seller, and (2) execute applicable
certificates of delivery and other documents as are necessary in connection with
Buyer's drawback claims.
COMPLIANCE WITH LAWS: Seller warrants that in performance of this
Order it has complied with or will comply with all applicable federal, state and
local laws and ordinances including, but not limited to, the Occupational Safety
and Health Act, the Fair Labor Standards Act, as amended, and Executive Order 11246,
as amended. In addition, Seller shall secure and maintain adequate workers' compensation
coverage. Upon request, Seller shall certify compliance with any laws or regulations
deemed applicable by Buyer.
GOVERNMENT CONTRACTS: Seller warrants that in the performance of
this Order it has complied with or will comply with all Federal Acquisition Regulations
or their counterpart for other governmental agencies which are applicable to the
goods or services purchased hereunder. Seller warrants that it shall, as a minimum,
comply with each of the following clauses at all times during its performance of
this Order: (a) the Federal Acquisition Regulation ("FAR") clause 52.222-26, "Equal
Opportunity" (E.O. 11246); (b) FAR clause 52.222-35, "Affirmative Action for Special
Disabled and Vietnam Era Veterans (38 U.S.C. § 4212(a)); (c) FAR clause 52.222-36,
"Affirmative Action for Handicapped Workers" (29 U.S.C. § 793); (d) FAR clause 52.219-8,
"Utilization of Small, Small Disadvantaged, and Women-Owned Small Business Concerns;"
and (e) FAR clause 52.219-9, "Small, Small Disadvantaged, and Women-Owned Small
Business Subcontracting Plan." Upon request, Seller shall certify compliance with
any of such laws or regulations deemed applicable by Buyer.
RELATIONSHIP TO OTHER AGREEMENTS: Notwithstanding anything else
contained herein, the terms hereof may be subject to a written agreement between
Buyer and Seller which is signed by each of them and expressly provides that the
terms of any particular invoice, acknowledgment, Order or transaction shall be subject
to the terms of such agreement.
RELATIONSHIP BETWEEN PARTIES: The transaction entered into between
the parties pursuant to this Order does not create any partnership, joint venture,
or agency between the Parties, and nothing in this Order shall be construed as creating
any such relationship.
CONSENT TO JURISDICTION: Each party agrees that any dispute between
the parties arising out of this Agreement or in any manner relating to the subject
matter of this Agreement and having an amount in controversy of one hundred thousand
dollars ($100,000) or less must be submitted by the parties to arbitration in accordance
the Commercial Arbitration Rules of the American Arbitration Association and judgment
upon the award may be entered in any court having jurisdiction thereof. Any such
arbitration will be held in Atlanta, Georgia under the auspices of Resolution Resource
Corp. or such other nationally recognized arbitration provider as the parties may
agree in writing. Any action filed by either party in any court in violation of
this Section should be dismissed pursuant to this Section.
APPLICABLE LAW: This Order is governed by the laws of the State
of Georgia without regard to its conflict of laws provisions.
NOTICES: All notices shall be in writing and delivered either by
hand, facsimile, or certified mail, return receipt requested at the addresses set
forth herein. Notice shall be deemed to have been given upon receipt if delivered
by hand; upon receipt if given by facsimile but only if such receipt is confirmed
by written confirmation produced by the transmitting machine; and upon expiration
of seven (7) days after mailing, if given by certified mail.
REMEDIES: Rights and remedies provided to Buyer herein shall be
in addition to, and not exclusive of, any other rights or remedies that Buyer may
have at law or equity. Failure by either party to enforce any term will not be deemed
a waiver of future enforcement of that or any other term. The terms and conditions
stated herein are severable. If any clause herein shall be held unenforceable by
any court of competent jurisdiction, such clause shall be deemed reduced in scope
to the maximum extent enforceable, and all other clauses herein shall remain binding
on the parties.
TITLES: The section titles herein are used for reference purposes
only and shall not be referred to or relied upon in interpreting the meaning of
the language contained in such section.
AUDIT COMPLIANCE: If Buyer purchases more than $100,000 of Seller's
services in any twelve month period, the, for the purpose of facilitating Buyer's
compliance with its own internal audit requirements, upon Buyer's request, Seller
will either (i) allow Buyer's representatives to review and audit Seller's internal
controls, to the extent applicable to the goods or services purchased by Buyer from
Seller, or (ii) provide Buyer with a Type II report of Seller's external auditors
consistent with SAS 70 sufficient to provide Buyer with reasonable comfort as to
the effectiveness of Seller's internal controls (to the extent applicable to the
goods or services purchased by Buyer from Seller).