Terms and Conditions of Purchase and Shipping Instructions

Shipping Instructions
  1. Tariff Provisions:  All shipments shall be made in strict conformity with governing tariff rules and regulations and packaging specifications, except where otherwise specifically required by provisions of this Order.
  2. Routing Instructions:
    1. Freight shipments are to be routed via Order instructions or as authorized by Buyer.  Seller will request prior routing instructions for delicate equipment or emergency shipments.
    2. Freight Charges: Shipments are to be made “Freight Collect” on FOB source shipments, unless otherwise specified herein.  AIRBORNE shipments are to have freight charges prepaid and added to the goods invoice.  Attach copies of paid freight bills to any invoice that includes transportation charges.
    3. Insurance: Do not declare any value for carriage or insurance.  Shipments shall be released to minimum value of governing classification or tariff, or insured for minimum value for traceability. No shipment exceeding $10,000 shall be sent Parcel Post. No shipment exceeding $50,000 shall be sent via courier service. Seller will provide advance notice to Buyer of shipments exceeding $1,000,000.00.
    4. Consolidation: Except where limited by Clause 2(c), above, consolidate all shipments to the delivery point specified herein, for any one day, on one bill of lading.
    5. Purchase Order Number(s) must appear on all correspondence; shipping labels; invoices; and shipping documents, including packing sheets, bills of lading, and airbills.
  3. Hazardous Material Packaging, Labeling, and Shipping: Seller shall comply with provision 10 below.
Purchase Order General Provisions
  1. Warranties: Seller expressly warrants that all items furnished to Buyer hereunder will be fit and safe for the purpose for which manufactured and for any particular purpose recommended to Buyer by Seller, will be free from defects in material and workmanship, will conform to applicable specifications, drawings, samples and descriptions and, if of Seller’s design, will be free of design defects. These warranties are in addition to any other express or implied warranties of Seller with respect to the items, and shall survive acceptance by Buyer of items and any payment by Buyer with respect to items. Neither Seller’s shipment of any items ordered hereby nor payment by Buyer of any invoice from Seller to Buyer therefore shall constitute Buyer’s acceptance of items ordered hereby or waiver of Seller’s warranties hereunder.  If in Buyer’s reasonable opinion any item delivered by Seller hereunder is unmerchantable, unfit for its intended use, or for any particular purpose recommended to Buyer by Seller, or otherwise defective; then, at any time within ninety (90) days from the date when such items are received by Buyer, Seller shall at the Seller’s cost, including, without limitation reasonable field and shutdown costs and any and all packing, shipment, delivery, and installation costs, promptly repair, modify, or replace any items.
  2. Changes:  By written order, Buyer may from time to time order work suspension or make changes in drawings, designs, specifications, quantity, place of delivery, methods of shipment and packaging, property and services furnished by Buyer. If such change causes an increase or decrease in the price of this Order or in the time required for its performance, Seller shall promptly notify Buyer thereof and assert its claim for adjustment within 20 days after the change is ordered, and an equitable adjustment shall be made. However, nothing in this provision shall excuse Seller from proceeding immediately with the Order as changed.  Whether made pursuant to this provision or by mutual agreement changes shall not be binding upon Buyer except when specifically confirmed in writing by a member of Buyer’s Purchasing Department. Information, advice, approvals, or instructions given by Buyer’s technical personnel or other representatives shall be deemed expressions of personal opinions only and shall not affect Buyer’s and Seller’s right and obligations hereunder unless set forth in a writing which is signed by a member of Buyer’s Purchasing Department and which expressly states that is constitutes an amendment to this Order.
  3. Infringement Indemnity: Seller warrants that items furnished hereunder will not and do not infringe any third party patent, copyright, trademark, or trade secret. If any claim, action, suit or other proceeding is brought against Buyer based upon copyright, trademark, patent or proprietary rights of a third party under the laws of any governmental authority relating to the items, Buyer will give timely written notice to such claim, action, suit or other proceeding to Seller.  Seller will defend any such claim, action, suit or other proceeding on behalf of and without expense to Buyer or Buyer may conduct its own defense which shall be at Seller’s expense and Seller will indemnify and save Buyer harmless from all losses, costs or damages, including without limitations reasonable fees for attorneys suffered by Buyer as a result of any such claim, action, suit or other proceeding. Seller will, at Seller’s expense (a) use Seller’s best efforts to procure for Buyer or Buyer’s customers the right to continue selling or using any items or parts thereof that may be affected by such claim of infringement, or (b) replace the allegedly infringing items or parts thereof with non-infringing items or modify such items or parts thereof so that they become non-infringing; provided however, that such modification shall not materially alter the characteristics, or affect or increase the cost of use, operation or maintenance of such items.
  4. Proprietary Information, Duplication and Disclosure:
    1. Seller shall not use for any purpose, other than fulfilling Buyer’s Orders, or disclose, without Buyer’s prior written consent, any tools or other items or any drawings, specifications, technical information or other data which have been specifically designed for Buyer in connection with this Order or furnished by Buyer.
    2. Seller agrees that it will not publicize this Order or disclose, confirm, or deny any details thereof to third parties, or use Buyer’s name in connection with Seller’s sales promotion or publicity without prior written approval from Buyer.
  5. Default: Buyer may terminate this Order for Seller’s default, if Seller becomes insolvent, fails to pay its debts as they become due, or makes or proposes an assignment for the benefit of creditors. Buyer shall have such additional remedies for default as may be available at law or in equity whether or not it terminates this Order.
  6. Force Majeure: Neither Buyer nor Seller shall be liable in damages for, nor shall this Purchase Order be terminable or cancelable by reason of, any delay or default in either party’s performance hereunder if such default or delay is caused by events beyond such party’s reasonable control including but not limited to, acts of God, action of any government or agency thereof, war or insurrection, civil commotion, destruction of facilities or materials by earthquake, fire, flood or storm, labor disturbances, epidemic, or failure of suppliers, public utilities or common carriers. The party so affected shall give prompt notice to the other party of such cause and shall take whatever reasonable steps are necessary to relieve the effect of such cause as rapidly as possible. Both parties agree to endeavor to resume performance of all obligations under this Purchase Order as soon as practical if such performance is delayed or interrupted by reason of force majeure.
  7. Assignments and Subcontracting:
    1. Neither this Order nor any interest herein nor claim hereunder may be assigned or delegated by Seller; nor may all or substantially all of this Order be further subcontracted by Seller without the prior written consent of Buyer. Buyer’s consent shall not be deemed to relieve Seller of its obligations to comply fully with the requirements hereof.
    2. Notwithstanding the above, Seller may without Buyer’s consent assign monies due and to become due hereunder provided Buyer shall continue to have the right to exercise and all of its rights under, settle any and all claims arising out of and enter into amendments to this Order, without notice to or consent of the assignee. Buyer shall be given notice of the assignment; all invoices shall refer to the assignment.
  8. Invoices:
    1. Invoices in duplicate shall be mailed to Buyer’s Accounts Payable Department when items are shipped. The time for payment shall not commence before Buyer’s actual or scheduled receipt, whichever is later of items at their destination or before performance by Seller in accordance with the requirements of this Order. Without limiting Buyer’s other remedies, if data is deficient or is not furnished when scheduled. Buyer may withhold remaining payments (or such portion thereof as Buyer may deem equitable) until such deficiency or delinquency is cured. All shipping costs and all federal manufacturers’ and retailers’ excise and state or local sales or use taxes, when applicable, must be billed as separate items on Seller’s invoices. And all tax exemption certificates shall be accepted by Seller.
    2. In addition to any other remedies that may be available in law or in equity, Buyer shall have the right to recover from Seller by offset or otherwise the price of any items returned to Seller under the terms of this Order.
  9. Buyer’s Representatives: Buyer’s employees are functioning in a representative capacity for Buyer with respect to any actions taken in connection with this Purchase Order and may not be held personally liable by Seller for such actions.
  10. Hazardous Material Packaging, Labeling, and Shipping: Seller shall package label, transport, and ship hazardous materials or items containing hazardous materials in accordance with all applicable Federal, State and Local laws and regulations, including but not limited to current published issues of tariffs and regulations reflecting 49 Code of Federal Regulation Articles 100-199, the Explosive Safety Manual AFM 127-100 and Federal Aviation Regulation 103, as amended (e.g., the current Hazardous materials Regulations of the Department of Transportation; the Official Air Transport Restricted Articles Tariff; and subsequent reissues thereof) and furnish appropriate Material Safety Data Sheets in accordance with California Hazardous Substances Information and Training Act. Seller prior to each hazardous material shipment, shall notify Buyer of its nature and shipment data by such means of communication as will allow for proper preparation for acceptance of delivery by the carrier of the material and shall identify same on all shipping documents.
  11. Cancellation: Buyer may cancel this Purchase Order with 60 days written notice to Seller. Buyer and Seller will negotiate a reasonable cancellation fee to be paid by Buyer, such fee including such Seller expenses as costs for specialty raw materials procured in advance by Seller for Buyer for this Purchase Order, goods in progress and finished goods on hand. Such cancellation fee will not include any penalty for cancellations.
  12. Disputes: Irrespective of the place of performance, this Order will be construed and interpreted according to the laws of the state of California without resort to California’s Conflicts of Laws rules. Pending final resolution of a dispute hereunder, the seller shall proceed diligently with the performance of this Order and in accordance with the Buyer’s decision. Venue for any legal proceedings between Buyer and Seller shall be in the state or federal judicial district closest to Mountain View, California.
  13. General: This order and the attachments and documents incorporated herein constitute the complete and exclusive statements of the terms of this agreement between Buyer and Seller and supersede all prior representations, understandings, and communications relating hereto. The invalidity in whole or in part of any provision of this Order shall not affect the validity of other provisions. Buyer’s failure to insist, in any one or more instances, upon the performance of any term of Order shall not be construed as a waiver or relinquishment of Buyer’s right to such performance or to future performance of such a term or terms and Seller’s obligation in respect thereto shall continue in full force and effect. Time shall be of the essence hereunder. Seller shall perform work and make deliveries no earlier than and only to the minimum extent consistent with delivery schedules and other requirements.
  14. Precedence: Conflicting provisions hereof, if any shall prevail in the following descending order of precedence: (1) typed provision set forth on this Order, (2) Buyer’s Purchase Order Attachments, (3) the preprinted portion of this Order, including these Purchase Order General Provisions, 4) statement of work, and (5) specifications attached or incorporated by reference.