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(B&K Corp Terms and Conditions, B&K Corp is now KUKA
Assembly and Test Corp.)
Terms and Conditions
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Purchase
Order Terms & Conditions
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KUKA
ASSEMBLY AND TEST CORPORATION PURCHASE ORDER TERMS AND
CONDITIONS
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| 1. |
ACCEPTANCE/AGREEMENT:
This Purchase Order (“Order”) shall be accepted by
Seller by shipment of goods (the term “goods” throughout
this Order includes, without limitation, raw materials,
components, intermediate assemblies, and end goods),
performance of services, commencement of work on goods,
written acknowledgement, or any other conduct of Seller
which recognizes the existence of a contract pertaining
to the subject matter hereof. NOTWITHSTANDING KUKA
ASSEMBLY AND TEST’S ACCEPTANCE OR PAYMENT FOR ANY
SHIPMENT OF GOODS OR SIMILAR ACT OF KUKA ASSEMBLY AND
TEST, NO PURPORTED ACCEPTANCE OF THIS ORDER ON TERMS AND
CONDITIONS WHICH MODIFY, SUPERSEDE, OR OTHERWISE ALTER
THESE TERMS AND CONDITIONS SHALL BE BINDING UPON KUKA
ASSEMBLY AND TEST UNLESS THEY ARE ACCEPTED IN WRITING BY
AN AUTHORIZED PURCHASING REPRESENTATIVE OF KUKA ASSEMBLY
AND TEST. ACCEPTANCE OF ANY ORDER IS EXPRESSLY LIMITED
TO THE TERMS HEREOF AND ANY ADDITIONAL OR DIFFERENT
TERMS ARE REJECTED WITHOUT FURTHER APPROVAL BY KUKA
ASSEMBLY AND TEST. Unless otherwise stated on the face
of this Order, this Order is KUKA ASSEMBLY AND TEST’s
offer to Seller and does not constitute an acceptance by
KUKA ASSEMBLY AND TEST of any offer to sell or proposal
by Seller. Any reference herein to any such offer or
proposal by Seller is solely for the purpose of
incorporating the description and specification of the
subject matter thereof into this Order and then only to
the extent that such description and specifications are
on the face of the Order.
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| 2. |
DELIVERY:
Seller acknowledges that all terms as to quantity,
quality, specifications, and time of delivery are
material elements of this Order and must be strictly
complied with. Time is of the essence with respect to
delivery of goods covered by this Order. Delivery must
be in strict compliance with the schedule contained in
this Order and shall be made by Seller at such times and
places and of such items and quantities as may be
specified by KUKA ASSEMBLY AND TEST. KUKA ASSEMBLY AND
TEST shall have no liability to Seller for goods
delivered to KUKA ASSEMBLY AND TEST either later than
the time, or in excess of the quantities, specified
which goods may be returned by KUKA ASSEMBLY AND TEST to
Seller at Seller's cost. Goods fabricated in excess or
in advance of KUKA ASSEMBLY AND TEST’s release are at
Seller’s sole risk. If Seller encounters or anticipates
difficulty in meeting the delivery schedule, Seller must
immediately notify KUKA ASSEMBLY AND TEST in writing,
giving pertinent details; provided, however, that the
receipt of such data shall be for information purposes
only and shall not be construed as a waiver by KUKA
ASSEMBLY AND TEST of any scheduled delivery date or of
any other rights or remedies provided by law or this
Order. If Seller fails to make timely delivery of all or
any portion of the goods covered by any Purchase Order,
or if any of the goods delivered to KUKA ASSEMBLY AND
TEST are defective or not in conformity with any
Purchase Order, then KUKA ASSEMBLY AND TEST may retain
all or any portion of the goods delivered and return, at
Seller’s sole cost and expense, those goods not retained
– all without waiver of any claim KUKA ASSEMBLY AND TEST
may have against Seller for Seller’s breach including,
without limitation, the right to damages and the right
to cancel any Purchase Order. A breach of either these
Terms and Conditions or any Purchase Order by Seller
will also constitute a breach by Seller of any other
Purchase Order between Seller and KUKA ASSEMBLY AND TEST
entitling KUKA ASSEMBLY AND TEST, in addition to any
other remedies it may have, at law or in equity, to
cancel such other Purchase Orders.
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| 3. |
SHIPPING INSTRUCTIONS:
Seller agrees to prepare and properly box or crate goods
for shipment so as to prevent damage in transit, to
comply with KUKA ASSEMBLY AND TEST’s shipping
instructions and/or routings, and to describe the goods
on the bill of lading in conformity with appropriate
freight classifications. No charge will be allowed for
packing, boxing or cartage, unless agreed upon at the
time of purchase, but damage of any goods not packed to
insure protection will be the sole responsibility of
Seller. Packing lists and certifications, when
applicable, must accompany each shipment and must have
only one (1) Order per Seller packing sheet. The
location of the packing list must be clearly marked on
the container. When multiple containers are used, the
packing list will show the items in each container.
Multiple containers will be numbered consecutively, for
example, 1 of 4, 2 of 4, etc. KUKA ASSEMBLY AND TEST’s
Order number and plant location must appear on all
invoices, packing sheets, delivery tickets, shipping
orders, and bills of lading. KUKA ASSEMBLY AND TEST
assumes no obligation for materials shipped in excess of
quantity as shown on this Order. When prepaid
transportation charges are for KUKA ASSEMBLY AND TEST's
account, the invoice must be supported by a prepaid
receipted transportation bill. All such prepaid
transportation charges must be separately itemized. KUKA
ASSEMBLY AND TEST may, in its sole discretion, change
delivery schedules or direct temporary suspension of
scheduled shipments.
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| 4. |
PRICING, INVOICING AND PAYMENT:
Seller represents and warrants that the prices charged
for the goods are not higher than those charged to any
other customer for goods of like grade and quality in
similar or less quantities. No additional charges of any
type may be added by Seller without KUKA ASSEMBLY AND
TEST’s prior written consent. All prices set forth in
any Order accepted by Seller will remain firm for the
goods ordered under such Order and may not be increased
for any reason whatsoever, including, without
limitation, any changes in currency rates, revenue laws,
treasury regulations or tariffs or increases in the
appraisal of the value of the goods by the customs
authorities of any country. Except as otherwise required
by law, Seller will not include as a portion of the
price of the goods, or otherwise charge KUKA ASSEMBLY
AND TEST, any sales, use, excise, import or other local
or foreign taxes, duties or assessments of federal,
state or local jurisdictions on the goods or the sale
thereof. If Seller is required by law to include any
such taxes in the price, Seller will separately detail
such taxes on Seller’s invoices. Seller and KUKA
ASSEMBLY AND TEST will provide each other with any and
all necessary certificates or other documentation
evidencing the inapplicability of, or exemption from,
any sales, excise, use or other taxes to which either
KUKA ASSEMBLY AND TEST or Seller may be entitled.
Individual invoices showing Purchase Order number and
Purchase Order item number must be issued for each
shipment applying against the Order. One (1) copy of
each invoice must be rendered with prices and extensions
to appear on all copies. Rejections, delays in delivery
or delivery in advance of required delivery date, errors
and/or omissions will be considered just cause for
withholding payment without loss of cash discount
privileges.
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| 5. |
INSPECTION:
Seller will inspect and test all goods furnished in
performance of this Order to ensure compliance with
warranty provisions, the specifications, and other
requirements of the Order. Test reports and/or
certifications shall be retained by Seller. Seller
agrees to permit inspections and testing by KUKA
ASSEMBLY AND TEST, KUKA ASSEMBLY AND TEST’s third party
agents and/or by KUKA ASSEMBLY AND TEST’s customer, of
all goods furnished in performance of this Order during
manufacturing, where practical and at any reasonable
time and place. The goods covered by this Order shall be
subject to inspection and acceptance or rejection by
KUKA ASSEMBLY AND TEST after delivery, notwithstanding
prior payment, it being understood and agreed that
payment by KUKA ASSEMBLY AND TEST shall not constitute
acceptance by KUKA ASSEMBLY AND TEST. KUKA ASSEMBLY AND
TEST may charge Seller the expense of unpacking,
examining, repacking, storing and reshipping any goods
found defective or not in conformity with the warranty
provisions of these Terms & Conditions, specifications
or any other requirements of this Order. If such goods
are rejected, KUKA ASSEMBLY AND TEST shall in writing so
notify Seller and KUKA ASSEMBLY AND TEST, at its sole
option and at the expense and risk of Seller, may
either, in addition to any other rights under these
Terms and Conditions including, without limitation, any
right to damages: (a) require Seller to replace any item
which KUKA ASSEMBLY AND TEST is entitled to reject or
grant a full refund or credit to KUKA ASSEMBLY AND TEST
in lieu thereof; or (b) return such rejected goods to
Seller or hold them for such disposal as Seller shall
indicate; or (c) have the defective or non-conforming
item corrected or replaced at Seller's expense and
deduct the cost thereof from any monies due Seller. Any
payments made on such rejected goods shall be
immediately refunded to KUKA ASSEMBLY AND TEST.
Acceptance of any goods by KUKA ASSEMBLY AND TEST does
not relieve Seller of liability for latent defects,
fraud, or such gross errors or defects as amount to
fraud. KUKA ASSEMBLY AND TEST shall have the right, at
any time, to reject any goods found not to be in
compliance with the warranty provisions, the
specifications, or other requirements of this Order.
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| 6. |
WARRANTY:
Seller warrants that the goods will: (i) strictly
conform with the Order and all specifications, drawings,
descriptions or samples furnished, specified or adopted
by KUKA ASSEMBLY AND TEST; (ii) be new and otherwise of
merchantable quality; (iii) be free from liens,
encumbrances or any defects in title; (iv) be free from
defects in material and workmanship; (v) be fit and
sufficient for the usual and ordinary purposes for which
they are intended; (vi) comply with all applicable
federal, state and local laws, rules, regulations,
agency standards, orders and ordinances including, but
not limited to OSHA; and (vii) be free from defects in
design. Seller, will, if requested by KUKA ASSEMBLY AND
TEST, at its sole expense, execute and furnish KUKA
ASSEMBLY AND TEST with appropriate written certificates
of compliance with such laws, rules, regulations, orders
and ordinances. Seller further warrants that it will
perform all work specified in any Purchase Order in a
competent and workmanlike manner, in accordance with
sound practice and state of the art in the industry and
with professional standards of skill, care and
diligence. All of the aforementioned warranties shall
remain in effect for a period of eighteen (18) months
from acceptance of goods by KUKA ASSEMBLY AND TEST.
Seller also warrants that: (i) on delivery KUKA ASSEMBLY
AND TEST will receive good title to the goods, free and
clear of any and all liens and encumbrances of any kind;
(ii) will be free from any actual or claimed patent,
copyright or trademark infringement; (iii) the
execution, delivery, and performance of any Order by
Seller has been duly authorized by all necessary
corporate action and is enforceable in accordance with
its terms; and (iv) the execution and delivery of any
Order by Seller does not, and the consummation of the
transactions contemplated will not, except as otherwise
noted in these Terms and Conditions, any Order or its
schedules: (a) result in a material breach of any
provision of, or constitute a material default under,
the articles of incorporation or bylaws of Seller, or
any agreement or instrument to which Seller is a party
or by which it is bound; or (b) require the consent or
approval of any other person or governmental agency or
authority. All warranties set forth in this Paragraph 6
given by Seller shall be non-exclusive and are in
addition to any other warranties implied by law or
otherwise made by Seller. Such warranties shall survive
inspection, testing, acceptance of, and payment for the
goods and shall run to KUKA ASSEMBLY AND TEST, its
successors, assigns, customers at any tier, and ultimate
user and joint users of the goods.
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| 7. |
PATENTS:
Seller warrants that the goods do not infringe on any
United States or Foreign Letters patent and do not,
otherwise, infringe on the intellectual property rights
of any third party. Seller agrees that it will, at its
own expense, including payment of court costs and
attorney fees, defend any claims or lawsuits instituted
by any party against KUKA ASSEMBLY AND TEST or KUKA
ASSEMBLY AND TEST’s customer for alleged infringement of
any patent, trademark, or similar right related to goods
manufactured by or for Seller and furnished to KUKA
ASSEMBLY AND TEST in the performance of this Order, or
relating to the use of such goods in combination with
other articles of its manufacture as is recommended by
Seller, except where such goods are furnished by Seller
pursuant to KUKA ASSEMBLY AND TEST’s drawings or
designs, provided KUKA ASSEMBLY AND TEST gives Seller
prompt notice in writing of any such charges, and of the
institution of any such suit of which it has knowledge
Seller further agrees that in case of a final award of
damages (or settlement) in any such suit, it will pay
such award (or settlement) and will, to the fullest
extent permitted by law, indemnify and hold harmless
KUKA ASSEMBLY AND TEST and its customers, from and
against any such award, court costs, attorney fees., and
expenses incurred by reason thereof. Seller shall
promptly notify KUKA ASSEMBLY AND TEST in writing of
each such notice or claim of which Seller has knowledge.
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| 8. |
FORCE MAJEURE.
Neither party shall be responsible for failure to
perform under a Purchase Order as a result of any cause
beyond its reasonable control, including but not limited
to acts of God, fires, civil disobedience, war, riots,
acts of terrorism, acts of terrorism, floods,
unavailability of suitable transport, changes in laws or
other governmental requirements, unforeseeable local
conditions, or inadequate site preparation. Subject to
KUKA ASSEMBLY AND TEST's absolute right to terminate all
or any part of the affected Purchase Order, in the event
of delay lasting more than thirty (30) days due to any
such cause, the time for performance will be extended by
a period of time equal to the time lost by reason of
such delay and other affected contract provisions shall
be equitably adjusted.
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| 9. |
COMPLIANCE WITH LAWS:
Seller agrees in accepting this Order it shall comply
with all applicable local, state, and federal laws,
orders, directives, and regulations heretofore or
hereafter promulgated with respect to the goods covered
by the Order. If Seller fails to comply with the
provisions of this Paragraph 9, KUKA ASSEMBLY AND TEST
may, by written notice to Seller, terminate any Order it
has with Seller, without any further obligation to
Seller. All materials used in goods manufactured by
Seller shall satisfy current governmental and safety
regulations regarding restricted, toxic, and hazardous
materials; as well as environmental, electrical, and
electromagnetic considerations applicable to the country
of manufacture or sale.
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| 10 |
TERMINATION
AND SETTLEMENT
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a) |
In the
event of the institution of any proceedings by or
against Seller in bankruptcy or insolvency or under any
provision of any applicable bankruptcy legislation or
the appointment of a receiver or trustee or an
assignment of the benefit of creditors of Seller, or the
institution of any similar proceedings, KUKA ASSEMBLY
AND TEST may terminate this Order or any other Order it
has with Seller.
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b) |
KUKA
ASSEMBLY AND TEST may, at any time by written notice,
terminate all or any part of this Order for KUKA
ASSEMBLY AND TEST’s convenience, in which event Seller
agrees to immediately stop work on the Order and to
immediately notify subcontractor(s) to stop work, and to
protect and preserve property in its possession. If this
Order is terminated, in whole or in part for KUKA
ASSEMBLY AND TEST’s convenience, Seller shall be paid an
amount, in KUKA ASSEMBLY AND TEST’s reasonable
discretion, which shall be adequate to cover the
reasonable cost of Seller’s actual performance of work
under this Order to the effective date of termination
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c) |
If an Order
is terminated as provided in either Paragraph 10 (a) or
(b) above, KUKA ASSEMBLY AND TEST, in addition to any
other rights or remedies provided in this Order, or at
law or in equity, may require Seller to transfer title
and deliver to KUKA ASSEMBLY AND TEST, in the manner and
to the extent directed by the KUKA ASSEMBLY AND TEST:
(1) any completed goods; and (2) such partially
completed goods and materials, parts, tools, dies, jigs,
fixtures, drawings, information, and contract rights
(“Manufacturing Materials”) as Seller has specifically
produced or specifically acquired for the performance of
such part of this Order as has been terminated. Seller
shall also protect and preserve property in its
possession in which KUKA ASSEMBLY AND TEST has any
interest. Payment for Manufacturing Materials delivered
to and accepted by KUKA ASSEMBLY AND TEST, and for the
protection and preservation of property, shall be in the
amount mutually agreed to by KUKA ASSEMBLY AND TEST and
Seller. KUKA ASSEMBLY AND TEST may withhold from amounts
otherwise due Seller for such completed goods or
manufacturing materials, such sum as KUKA ASSEMBLY AND
TEST determines, in its sole discretion, necessary to
protect KUKA ASSEMBLY AND TEST against loss because of
outstanding liens or claims of former lien holders.
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d) |
KUKA
ASSEMBLY AND TEST may, at any time, for any reason,
whether or not Seller is in default, cancel an Order in
whole or in part by written or electronically issued
notice to Seller. Upon receipt of such cancellation
notice, Seller will immediately stop work on the date,
and to the extent, specified in such notice and cancel
all orders and subcontracts that relate to the cancelled
Order. KUKA ASSEMBLY AND TEST will pay Seller for all
finished goods accepted by KUKA ASSEMBLY AND TEST, as
well as for the verified, documented costs to Seller of
work in process and material allocated to the cancelled
order that is not in excess of any prior authorization
by KUKA ASSEMBLY AND TEST. This provision shall not
apply to items that are otherwise saleable, standard
items. Except as provided in this Paragraph 10 d, KUKA
ASSEMBLY AND TEST shall not be liable for and shall not
be required to make payments to Seller, directly or on
account of claims by Seller’s subcontractors, for loss
of anticipated profit, unabsorbed overhead, interest on
claims, product development and engineering costs,
facilities and equipment rearrangement costs or rental,
unamortized depreciation costs, or general and
administrative burden charges from termination of any
Order. Within 60 days from the effective date of any
termination, Seller shall submit a comprehensive
termination claim to KUKA ASSEMBLY AND TEST, with
sufficient supporting data to permit KUKA ASSEMBLY AND
TEST’s audit, and shall thereafter promptly furnish such
supplemental and supporting information as KUKA ASSEMBLY
AND TEST shall request. KUKA ASSEMBLY AND TEST or its
agents shall have the right to audit and examine all
books, records, facilities, work, material, inventories
and other items relating to any termination claim of
Seller. Payment made under this paragraph shall
constitute KUKA ASSEMBLY AND TEST’s only liability to
Seller for cancellation of a Order with title and right
of possession to all delivered goods vesting in KUKA
ASSEMBLY AND TEST immediately upon KUKA ASSEMBLY AND
TEST’s tender of such payment. The provisions of this
paragraph will not apply to any cancellation by KUKA
ASSEMBLY AND TEST based upon Seller’s default, or in the
event Seller becomes insolvent or makes a transfer for
the benefit of creditors or if bankruptcy or any other
insolvency proceedings are instituted by or against
Seller. In such cases, KUKA ASSEMBLY AND TEST shall have
the right to immediately terminate any Order, with no
obligation to Seller. KUKA ASSEMBLY AND TEST shall also
retain the right to proceed against Seller under any
other cause recognized by law, in equity, or specified
in any Order.
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| 11. |
KUKA ASSEMBLY AND TEST RIGHT OF
SETOFF. KUKA ASSEMBLY AND
TEST may, at its option, set off any and all sums which
Seller owes to KUKA ASSEMBLY AND TEST under any Order or
otherwise against any and all sums which KUKA ASSEMBLY
AND TEST owes to Seller under any other Order. In
addition, to secure Seller’s obligation to KUKA ASSEMBLY
AND TEST under any Order, including, without limitation,
damages for breach, KUKA ASSEMBLY AND TEST shall have,
and Seller hereby grants to KUKA ASSEMBLY AND TEST, a
security interest in any goods rejected by KUKA ASSEMBLY
AND TEST.
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| 12. |
INDEMNIFICATION / INSURANCE:
If the accomplishment of this Order requires Seller to
sell goods, perform services, or provide labor on the
premise of KUKA ASSEMBLY AND TEST:
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a) |
Seller
agrees to take all precautions necessary to prevent the
occurrence of any accident, injury, death, or loss to
any persons or property. Seller further agrees to be
solely responsible for any accident, injuries, death, or
loss to any persons or property which arise out of its
performance under this Order. Seller further agrees
that:
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(i) |
Seller will keep the
premises and work area safe and free and clear of all
hazards.
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(ii) |
The work will remain at
Seller's sole risk prior to written acceptance by KUKA
ASSEMBLY AND TEST and Seller will replace at its own
expense all work damaged or destroyed as a result of the
acts, omissions or negligence of Seller.
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(iii) |
Seller will, to the
fullest extent permitted by law, indemnify, save
harmless and defend KUKA ASSEMBLY AND TEST from and
against any and all claims, demands or suits made or
brought against Seller or KUKA ASSEMBLY AND TEST on
account of any of the terms or provisions of any
applicable worker's compensation law and/or unemployment
insurance law, or other breach of an Order or these
Terms and Conditions.
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(iv) |
Seller shall maintain
public liability insurance with limits that are at least
the equivalent of a combined bodily injury and property
damage single limit of $1,500,000 per occurrence,
including contractual coverage with respect to the
indemnity provisions of these Terms and Conditions, and
shall have KUKA ASSEMBLY AND TEST named as an additional
insured thereon. Such insurance shall be deemed to be
the primary liability coverage and Seller shall furnish
KUKA ASSEMBLY AND TEST acceptable evidence of such
insurance before commencing work
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b) |
Seller
will, to the fullest extent permitted by law, indemnify,
defend, and hold harmless KUKA ASSEMBLY AND TEST from
and against any liability, lawsuit, claim or action
(regardless of the merits thereof) ("Claim"), and pay
any loss, damage, judgment, cost or expense associated
therewith (including, without limitation, attorneys
fees) arising out of any death or injury to any person,
or damage to or destruction of any property, or any
other actual or alleged damage or loss whatsoever, of
whatever kind or nature, foreseeable or unforeseeable,
suffered by any individual or entity, resulting or
alleged to result in whole or in part from: (a) any
actual or alleged defect in any goods covered by any
Order, whether latent or patent, including, without
limitation, any actual or alleged failure by such goods
or the manufacture, possession, use or sale thereof to
comply with any law, rule, regulation, ordinance or
order, unless such death, injury or damages were caused,
in their entirety, by the sole negligence of KUKA
ASSEMBLY AND TEST; (b) Seller's failure to comply with
any provision of these Terms and Conditions or any Order
or the act or omission of either Seller, Seller’s
vendors, subcontractors or anyone acting directly or
indirectly under Seller’s direction, control or on
Seller’s behalf; (c) any misrepresentation or breach of
any representation, agreement or covenant by Seller; or
(d) alleged infringement of any patent, copyright,
trademark or other intellectual property rights of a
third party. KUKA ASSEMBLY AND TEST’s indemnification
damages will include, without limitation, the cost to
replace the goods covered by the Order and any
consequential damages, including, but not limited to,
loss of profits and any other claims made by KUKA
ASSEMBLY AND TEST, its employees, agents or customers.
To the extent that these Terms and Conditions provide
that Seller will indemnify, save harmless and defend
KUKA ASSEMBLY AND TEST from liability, claims, demands
or suits, it is the intention of Seller that such
indemnity shall apply, to the fullest extent permitted
by law, unless the Claim was caused by the sole
negligence of KUKA ASSEMBLY AND TEST.
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c) |
Seller
shall maintain such liability insurance, including
product liability, completed operations, contractor’s
liability, automobile liability, comprehensive general
liability, and workers’ compensation and employer’s
liability as will adequately protect Seller and KUKA
ASSEMBLY AND TEST against such Claims and all other
claims, losses, damages, liabilities, fines, and
expenses but not less than $1,000,0000 per occurrence.
All such insurance shall be placed with reputable
companies acceptable to KUKA ASSEMBLY AND TEST, with
policy language in form and content acceptable to KUKA
ASSEMBLY AND TEST, and naming KUKA ASSEMBLY AND TEST as
an additional insured in all such policies. Seller shall
furnish KUKA ASSEMBLY AND TEST Certificates of Insurance
evidencing all such coverage.
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| 13. |
GRATUITIES, POLICIES, AND
PROCEDURES: If it is found
that the gratuities (in the form of entertainment,
gifts, or otherwise) are offered by Seller, or any
employees, agents or representative of Seller, to any
employee of KUKA ASSEMBLY AND TEST with a view toward
securing favorable treatment with respect to the
awarding or performing of any Order, KUKA ASSEMBLY AND
TEST may, by written notice to Seller, terminate this
Order.
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| 14. |
APPLICABLE LAW:
This Order shall be deemed to be a contract entered into
in the State of Michigan, U.S.A., and shall be construed
and governed in all respects, and the legal
relationships between the parties shall be determined in
accordance with applicable commercial law of the State
of Michigan, U.S.A., including but not limited to, the
Uniform Commercial Code, as the same may be enacted and
in force from time to time in that jurisdiction. The
parties agree that the United States Convention for the
International Sale of goods (CISG) shall not apply to
the sale of goods hereunder and expressly waive same
with respect to any Order.
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| 15. |
AMENDMENT BY LAW:
This Order shall be deemed to contain all provisions
required to be included any applicable local, state, and
federal laws, order, regulations, or directives
heretofore or hereafter promulgated without the
subsequent amendment of this Order specifically
incorporating such provisions. This Order may not be
subcontracted by the Seller without prior written
consent of KUKA ASSEMBLY AND TEST.
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| 16. |
ASSIGNMENT:
Seller shall not assign the performance, or any part, of
this Order without the prior written consent of KUKA
ASSEMBLY AND TEST. Proceeds due or to become due under
this Order may be assigned by Seller only with the prior
written consent of KUKA ASSEMBLY AND TEST and provided
that payment to an assignee of any claim related to this
Order shall be subject to all applicable defenses,
reductions, and setoffs.
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| 17. |
NOTICES:
All notices required or permitted to be given hereunder
shall be deemed to be properly given if delivered in
writing personally, or sent by United States certified
or registered mail, or sent by private overnight
delivery service and by the United States first class
mail, addressed to Seller or KUKA ASSEMBLY AND TEST, as
the case may be, at the addresses set forth on the face
of this Order, with postage thereon fully prepaid.
Releases, estimates, changes in specifications, and
shipments notifications may be sent by confirming telex,
facsimile, or e-mail, and shall be confirmed by mail as
described above. The effective time notice shall be at
the time of such sending, mailing, or personal delivery.
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| 18. |
AUTHORIZATIONS:
All authorizations of KUKA ASSEMBLY AND TEST required or
permitted to be given herein shall be deemed properly
given only if given in writing by two (2) authorized
representatives of KUKA ASSEMBLY AND TEST.
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| 19. |
DISPUTES:
Pending resolution of any dispute hereunder, Seller
shall proceed diligently with the performance of work,
including the delivery of goods in accordance with KUKA
ASSEMBLY AND TEST’s direction.
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| 20. |
WAIVER:
Any waiver of strict compliance with any of these Terms
and Conditions or any Order by KUKA ASSEMBLY AND TEST
must be in writing and signed by KUKA ASSEMBLY AND TEST,
and any such waiver shall not constitute a waiver of
KUKA ASSEMBLY AND TEST’s rights under any other
provision of these Terms and Conditions, any Order, or
any subsequent breach by Seller. Any patentable idea
developed or produced by Seller in the performance of
any Order will be the exclusive property of KUKA
ASSEMBLY AND TEST. Seller shall fully cooperate with
KUKA ASSEMBLY AND TEST with regard to filing appropriate
applications for patents for such items developed or
produced by Seller during performance of any Order.
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| 21. |
DATA:
All purchasing documents, i.e. Orders and any other
documents referenced in the Order, shall completely and
uniquely identify the goods and quantities specified, as
well as any applicable standard and specifications.
These documents are subject to review and approval by
KUKA ASSEMBLY AND TEST for adequacy. All drawings and
specifications furnished or paid for by KUKA ASSEMBLY
AND TEST shall be the property of KUKA ASSEMBLY AND
TEST, subject to removal at any time upon demand by KUKA
ASSEMBLY AND TEST (without additional cost) shall be
used only in filling orders from KUKA ASSEMBLY AND TEST,
shall be kept separate from other drawing and
specifications, and shall be identified as the property
of the KUKA ASSEMBLY AND TEST.
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| 22. |
CONFIDENTIALITY AND DISCLOSURE:
Any unpatented knowledge or information concerning
Seller's goods, methods or manufacturing processes which
Seller may disclose to KUKA ASSEMBLY AND TEST incident
to the manufacture or purchase of the goods covered by
this Purchase shall, unless otherwise specifically
agreed in writing, be deemed to have been disclosed as a
part of the consideration for a Purchase, and Seller
agrees not to assert any claim against KUKA ASSEMBLY AND
TEST by reason of KUKA ASSEMBLY AND TEST's use or
alleged use thereof. The information contained in
reports, drawings, documents, or other records which are
furnished to Seller by KUKA ASSEMBLY AND TEST relative
to this Order shall be considered the exclusive property
of KUKA ASSEMBLY AND TEST to the extent that such
information is not in the public domain. Seller will
not, without KUKA ASSEMBLY AND TEST’s prior written
consent, disclose, divulge or otherwise make available
to any other person, or use, either directly or
indirectly, except during the performance of a Order,
any information relating to KUKA ASSEMBLY AND TEST or
its business, operations, goods, or any other
intellectual property, including but not limited to
patents, trademarks, copyrights, processes, techniques,
procedures, designs, writings, documents, models, films,
blocks, die-cuts, drawings, plans, specifications, blue
prints, equipment, systems, know-how, trade secrets,
project information, policies or agreements, including
these Terms and Conditions or any Order (“Confidential
Information”). Seller will take all steps which may be
necessary or appropriate in order to assure that
Seller’s employees and Seller’s subcontractors and the
employees of such subcontractors’ adhere to this
Paragraph 22. All subcontracts, purchase orders, and
other agreements that Seller enters into pursuant to the
performance of any Order shall include appropriate
clauses to carry out the purpose and intent of this
provision. Seller shall not use any such Confidential
Information for its own use or for any purpose
whatsoever except in the performance of an Order. Upon
completion, termination, or cancellation of this Order,
Seller shall return all drawings and specifications
(including copies) to KUKA ASSEMBLY AND TEST, in the
event KUKA ASSEMBLY AND TEST requests returns of any
such items , within thirty (30) days after the effective
date of completion, termination, or cancellation. Any
such data of KUKA ASSEMBLY AND TEST retained by Seller
shall remain subject to the restrictions on use,
reproduction, and disclosure contained within this Order
which shall survive the cancellation, termination, or
completion of this Order. Upon termination of this
Order, KUKA ASSEMBLY AND TEST may, at KUKA ASSEMBLY AND
TEST’s option, use on a nonexclusive basis, all
drawings, documents, or other records related to this
Order whether created by KUKA ASSEMBLY AND TEST or
Seller without further compensation to Seller. Seller
may not disclose the existence of this Order or the
items to be supplied hereunder without KUKA ASSEMBLY AND
TEST’s prior consent except to permitted subcontractors
who shall have the same responsibility.
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| 23. |
SALE OF PARTS:
Seller is prohibited from using KUKA ASSEMBLY AND TEST’s
data, as identified in Paragraph 22, in the
manufacturing, distribution, sale or otherwise disposing
of any part(s) which are subject of this Order, to any
third party without the express written consent of KUKA
ASSEMBLY AND TEST. The restriction on Seller in the
manufacturing, distribution, sale, or otherwise
disposing of any part(s) shall survive the cancellation,
termination, or completion of this Order. Where an Order
specifies that goods shall bear KUKA ASSEMBLY AND TEST's
trade name, trademark or other KUKA ASSEMBLY AND TEST
identification, and Seller produces any goods bearing
KUKA ASSEMBLY AND TEST's trade name, trademarks or other
KUKA ASSEMBLY AND TEST identification in excess of the
quantity indicated on the Purchase Order and KUKA
ASSEMBLY AND TEST does not accept such excess, Seller
agrees that the use by Seller or the sale or disposition
to third parties of any such excess goods bearing KUKA
ASSEMBLY AND TEST's trade name, trademark or other KUKA
ASSEMBLY AND TEST identification will result in an
infringement of KUKA ASSEMBLY AND TEST's property rights
and Seller agrees to pay KUKA ASSEMBLY AND TEST
liquidated damages calculated at three times the "vendor
unit price" of any such item used, sold or disposed of
(such liquidated damages being a reasonable estimate of
damages to be sustained by KUKA ASSEMBLY AND TEST in
such a case). Seller agrees that any returned or
rejected Product bearing KUKA ASSEMBLY AND TEST's trade
name, trademark or other KUKA ASSEMBLY AND TEST
identification will be destroyed or alternatively said
trade name, trademark or other KUKA ASSEMBLY AND TEST
identification will be so completely obliterated as to
be unrecognizable as KUKA ASSEMBLY AND TEST's trade
name, trademark or other identification before Seller
makes any disposition whatsoever of the rejected goods
other than total destruction. Seller further agrees not
to advertise or hold out to the public that any such
rejected goods are rejected goods of KUKA ASSEMBLY AND
TEST or are second line goods or any such similar
terminology that would reflect such goods were connected
in any manner with KUKA ASSEMBLY AND TEST.
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| 24. |
INCORPORATED DOCUMENTS:
All documents attached to this Order are incorporated
herein by reference and made a part of this Order as if
fully set forth herein.
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| 25. |
ENTIRE AGREEMENT, AMENDMENTS:
The Order and these Terms and Conditions and any
additional terms on the face of the Order or in any
attachments thereto and incorporated therein, constitute
the entire understanding and agreement between KUKA
ASSEMBLY AND TEST and Seller and their respective heirs,
devises, administrators, executors, successors, and
permitted assigns. No change to the Order, the Terms and
Conditions, or any attachments hereto and incorporated
herein shall be valid and binding on either party unless
reduced to writing and signed by authorized
representatives of both parties. In the event of any
inconsistency between these Terms and Conditions and the
provisions on the face of any Order or supplement
attached hereto, the provision contained on the Order or
on the supplement shall control.
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| 26. |
DEFAULT.
Unless excused under Paragraph 8 (Force Majeure), the
failure of Seller to perform any term, condition, or
covenant made or undertaken by it, or the violation of
any warranty or representation in any Order or these
Terms and Conditions, shall be deemed a default by
Seller. If a default occurs, KUKA ASSEMBLY AND TEST
shall provide a notice of default to Seller, and KUKA
ASSEMBLY AND TEST shall then have the right to: (a)
terminate any Order with Seller; or (b) enforce specific
performance; or (c) charge Seller for any damages or
losses KUKA ASSEMBLY AND TEST sustains as a result of
Seller's default. These rights shall be cumulative and
in addition to any and all other rights and remedies
available to KUKA ASSEMBLY AND TEST either in equity or
law.
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| 27. |
RETURN OF MATERIALS.
If the goods to be manufactured for KUKA ASSEMBLY AND
TEST by Seller hereunder are to be made pursuant to
specifications, designs, drawings, plans, or blue prints
(including all electronic copies of same) furnished by
KUKA ASSEMBLY AND TEST, Seller shall return the same to
KUKA ASSEMBLY AND TEST immediately upon KUKA ASSEMBLY
AND TEST's request upon completion, termination, or
cancellation of an Order, and Seller shall not, without
the express written consent of KUKA ASSEMBLY AND TEST,
use the same in the production of any goods or material
for any party other than KUKA ASSEMBLY AND TEST.
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| 28. |
EQUIPMENT.
Seller shall be responsible for all materials,
equipment, tools, dies, and other property of KUKA
ASSEMBLY AND TEST while the same are in the possession,
control or custody of Seller. Seller shall use such
property at its own risk, shall be responsible for all
loss of or damage to same, shall, at its own cost,
maintain such property in the same condition as
supplied, ordinary wear and tear excepted, and shall
return or otherwise dispose of same in accordance with
the instructions of KUKA ASSEMBLY AND TEST. Seller shall
not, without the express written consent of KUKA
ASSEMBLY AND TEST, use any such materials, equipment,
tools, dies or other property of KUKA ASSEMBLY AND TEST
in the manufacture of any goods or material for any
party other than KUKA ASSEMBLY AND TEST.
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| 29. |
TITLE, HEADINGS AND INVALIDITY.
Whenever possible, each pronoun used in these Terms and
Conditions and any Order shall be interpreted in such a
way to be effective and valid under applicable law. The
invalidity or unenforceability of any provision of these
Terms and Conditions and any Order under any present or
future law, rule, regulation or ordinance will not
affect any other provision of these Terms and Conditions
or any Order, and the remaining provisions of these
Terms and Conditions and any Order shall continue with
the same force and effect as if such invalid or
unenforceable provision had not been inserted in these
Terms and Conditions or any Order. Titles and headings
to articles, sections, or paragraphs in these Terms and
Conditions are inserted for convenience of reference
only and are not intended to affect the interpretation
or construction of these Terms and Conditions.
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| 30. |
BENEFIT.
These Terms and Conditions will be binding upon and
inure to the benefit of the parties hereto and their
successors and permitted assigns. The Parties do not
intend to confer any benefits on any person, firm, or
corporation other than Seller and KUKA ASSEMBLY AND
TEST, as a result of any Order.
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| 31. |
RELATIONSHIP/STATUS.
Seller agrees that all services are to be rendered by
Seller as an independent contractor. KUKA ASSEMBLY AND
TEST and Seller are neither partners nor joint venturers.
There is no agency relationship between the parties,
therefore, neither party has any authority to legally
bind the other party. Under no circumstance will any
individual performing services under a Purchase Order be
considered a KUKA ASSEMBLY AND TEST employee or agent.
No contractual relationship will exist between KUKA
ASSEMBLY AND TEST and any subcontractor or vendor of
Seller. Seller will be responsible for the management
of any subcontractor in the performance of its work
under any Purchase Order.
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| 32. |
REMEDIES.
The rights, remedies and warranties set forth in these
Terms and Conditions are non-exclusive as KUKA ASSEMBLY
AND TEST shall have the right to enforce against Seller
any and all other rights, remedies and warranties
available to a KUKA ASSEMBLY AND TEST of goods, either
in law or in equity.
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| 33. |
OEM REQUIREMENTS.
Where the goods under this order are or will be sold, or
incorporated into goods or services that are or will be
sold, by KUKA ASSEMBLY AND TEST to a third party (“OEM
Customer”) in respect of an OEM Customer’s program,
Seller shall take such steps, provide such disclosure,
comply with such requirements and do all other things as
may be reasonably necessary and within its control to
enable KUKA ASSEMBLY AND TEST to meet KUKA ASSEMBLY AND
TEST’s obligations under the terms and conditions of any
purchase order or other document that may be applicable
to KUKA ASSEMBLY AND TEST from time to time in respect
of its supply of such goods or services to OEM Customer
in respect of the program, including without limitation:
delivery, packaging and labeling requirements;
intellectual property rights and confidentiality; access
to facilities and records.
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| 34. |
PAYMENT.
Unless otherwise agreed or otherwise stated on the face
of this Order, net invoices (subject to applicable
withholding taxes, if any) shall be paid within
forty-five (45) days of receipt of the invoice by KUKA
ASSEMBLY AND TEST.
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| 35. |
CERTIFICATE OF ORIGIN, ETC.
Upon request, Seller shall furnish immediately to KUKA
ASSEMBLY AND TEST certificates of origin or domestic
value-added and all other information relating to the
costs and places of origin of goods and the materials
contained therein or used in the performance thereof, as
may be required by KUKA ASSEMBLY AND TEST to comply
fully with all customs, tariff or other applicable
governmental regulations. Seller shall comply with all
such regulations. Seller shall indemnify KUKA ASSEMBLY
AND TEST affiliates and its customers against all
losses, costs or damages (including any fines or
penalties) resulting directly or indirectly from
Seller’s delay in furnishing such certificates or other
information to KUKA ASSEMBLY AND TEST and from any
errors or omissions contained therein and from any
non-compliance by Seller with the aforesaid regulations.
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| 36. |
RIGHT OF BUYER TO PERFORM.
If Seller fails to perform any of its obligations under
this Order, and Seller has not remedied such failure to
perform within ten (10) days (or such shorter period of
time as KUKA ASSEMBLY AND TEST may determine, if
commercially reasonable under the circumstances) of
written notice from KUKA ASSEMBLY AND TEST (except in
the event of a delay in the delivery date or the final
acceptance date, in which case such notice and cure
period shall not apply), then KUKA ASSEMBLY AND TEST and
its agents may without limiting or affecting its other
rights and remedies hereunder or at law (but shall not
be obligated to) perform the obligation without waiving
or releasing Seller from the obligation. Where
applicable, KUKA ASSEMBLY AND TEST and its agents shall
be entitled to enter upon Seller’s premises to perform
or remove the goods and related tooling and materials
necessary to perform such obligations. All costs,
damages and expenses incurred directly or indirectly by
KUKA ASSEMBLY AND TEST in connection with the foregoing
shall be paid by Seller to KUKA ASSEMBLY AND TEST on
demand or, at KUKA ASSEMBLY AND TEST’s sole option, may
be set off against and deducted from any amounts then
owing by KUKA ASSEMBLY AND TEST to Seller.
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| 37. |
RIGHT TO AUDIT.
Seller grants to KUKA ASSEMBLY AND TEST and to KUKA
ASSEMBLY AND TEST’s authorized agents and
representatives reasonable access to all pertinent
information, including, but not limited to, books,
records, payroll data, receipts, correspondence and
other documents for the purpose of auditing Seller’s
charges under this Order. Seller will preserve these
documents for a period of two (2) years after the final
payment under this Order. In addition, all work,
materials, inventories and other items provided for
under this Order must be accessible to KUKA ASSEMBLY AND
TEST and to KUKA ASSEMBLY AND TEST’s authorized agents
and representatives, including, but not limited to,
parts, tools, fixtures, gauges and models, at all times.
Seller will segregate its records and otherwise
co-operate with KUKA ASSEMBLY AND TEST so as to
facilitate any audit pursuant to this paragraph.
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| 38. |
SEVERABILITY.
If any term of this Order is invalid or unenforceable
under any statute, regulation, ordinance, executive
order or other rule of law, such term shall be deemed
reformed or deleted, as the case may be, but only to the
extent necessary to comply with such statute,
regulation, ordinance, order or rule, and the remaining
provisions of this Order shall remain in full force and
effect.
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