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Purchase Order Terms and Conditions

1. ACCEPTANCE OF ORDER

The parties shall be bound by this order and its terms and conditions when Seller (a) delivers to Buyer any of the goods order, or (b) renders for Buyer any of the services ordered herein. No contract shall exist except as herein above provided.

2. AMENDMENTS

No agreement or understanding to modify this contract shall be binding upon Buyer unless in writing and signed by Buyer’s authorized agent. All instructions, specifications and drawings submitted to Seller in connection with this order are hereby incorporated and made a part hereof.

3. BUYER CHANGES

Buyers reserves the right at any time to make a change in any one or more of the following:
a) Instructions, specifications and drawings incorporated in this order where the goods to be furnished are to be specifically manufactured for Buyer, in whole or in part. b) Method of shipment or packing. c) Place of delivery. d) Time of delivery. If any such change causes an increase or decrease in the cost of, or the time required for performance of this contract, an equitable adjustment shall be made in the contract price or delivery schedule or both. Any claim by Seller for adjustment under this clause shall be deemed waived unless asserted in writing and received by Buyer within ten days from receipt by Seller of the change. Price increases or extensions of time for delivery shall not be binding on Buyer unless evidenced in a writing signed by Buyer.

4. DELIVERY

Time is of the essence of this order. If the delivery of goods or rendering of services is not completed by the time promised, Buyer reserves the right, without liability, and in addition to its other rights and remedies, to terminate this order by written notice, effective when mailed to Seller as to goods not yet received or services not yet rendered. Buyer may then purchase substitute goods or services elsewhere. Any provisions herein for delivery of goods or the rendering of services by installment shall not be construed as making any obligation of Seller severable. Buyer shall have no obligation to accept goods shipped C.O.D. without Buyer’s written consent, and Seller shall bear all risk with respect to said goods.

5. INSPECTION

Goods purchased hereunder are subject to inspection and approval after receipt by Buyer. Buyer reserves the right to reject and refuse acceptance of goods not in strict accordance with Buyer’s instructions, specifications and drawings, and Seller’s warranty, express or implied. Goods not accepted shall be returned to Seller at Seller’s expense. Buyer’s right to reject any goods hereunder and to return said goods to Seller shall not be limited to any specific time period. Payment for any goods hereunder shall not constitute acceptance thereof.

6. WARRANTY

By accepting this order, Seller hereby warrants that each and every item of goods and services to be furnished hereunder shall be free from defects in material and workmanship, merchantable, and in strict accordance with Buyer’s instructions, specifications and drawings. Seller’s warranty, and any sample of Seller, and that items furnished hereunder will be fit for the use intended by Buyer. Seller agrees that this warranty shall survive Buyer’s acceptance of said goods. Said warranties shall be in addition to any other warranties given to Buyer by Seller. No implied warranties of Seller shall be excluded.

7. PROPERTY FURNISHED TO SELLER BY BUYER

Unless otherwise agreed to in writing, all special dies, molds, patterns, jigs, fixtures, and any other property furnished to Seller by Buyer or specifically paid for by Buyer for use in the performance of this contract shall be and remain the property of Buyer, shall be immediately delivered to Buyer at Seller’s expense upon Buyer’s written demand therefore, shall be used only in filling orders from Buyer, shall be held at Seller’s risk, shall not be pledged or hypothecated by Seller for any reason whatsoever, and shall be kept insured by Seller at Seller’s expense while in its custody, or control, in an amount equal to the replacement cost thereof with loss payable to Buyer. Copies of policies or certificates of such insurance shall be furnished to Buyer upon demand.

8. PATENTS

Seller agrees to indemnify, and forever save Buyer free and harmless of all costs and expenses including reasonable attorney’s fees, and undertakes and agrees to defend at Seller’s expense all suits, actions, or proceedings in which Buyer, any of Buyer’s distributors or dealers, or the users of any of Buyer’s products, are made defendants for actual or alleged infringement of any U.S. or foreign letters patent resulting from the use or sale of the items purchased hereunder, except infringement necessarily resulting from adherence to Buyer’s specifications or drawings, and Seller further agrees to pay and discharge any and all judgments or decrees which may be rendered in any such suit, action or proceedings against such defendants therein.

9. PRICE

Buyer shall not be billed at prices higher than stated on this purchase order unless authorized in writing signed by Buyer. Seller represents that the price charged for the goods or services covered by this order comply with applicable government regulations in effect at the time of quotation, sale, and delivery.

10. TERMS

All invoices must be dated no earlier than date of shipment. Buyer’s payment obligation for tooling shall not commence until parts produced from such tooling are received and approved by Buyer.

11. COMPLIANCE WITH LAW

In accepting this order, Seller represents that it has, and will continue during the performance of this order to comply with the provisions of all Federal, State and local laws and regulations from which liability may accrue to Buyer from any violation thereof. By acceptance hereof, Seller certifies compliance with the Fair Labor Standards Act of 1938 as amended, and with Executive Order Number 11246 in the performance of this contract.

12. TERMINATION BY BUYER

Buyer shall have the right to terminate this order in whole or in part by giving written notice thereof to Seller. Upon receipt of such notice, Seller shall, unless the notice directs otherwise, immediately discontinue its work pertaining to this order and the placing of orders for materials, facilities, and supplies, and shall make every reasonable effort to obtain cancellation of all such existing orders or contracts upon terms satisfactory to Buyer. Seller shall thereafter do only such work as may be necessary to preserve and protect work already in progress and to protect materials, plant and equipment on such work or in transit thereto. In case of such termination, it is agreed that Seller shall be entitled to prorate compensation for the unpaid portion of the contract already performed, including materials for which firm contracts have been made and to which Buyer shall be entitled. The foregoing shall be the sole remedy available to Seller in the event of termination of Buyer.

13. PASSAGE OF TITLE

Title to the goods purchased hereunder shall pass to Buyer upon Buyer’s actual, in hand receipt thereof.

14. INTEREST, FINANCE AND OTHER CHARGES

Buyer specifically disclaims, and shall not be liable to Seller for any interest, finance, or service charge, or any other such charge with respect to the goods or services which are the subject of this order.

15. INDEMNITY

Seller agrees to defend, indemnify, and forever save Buyer free and harmless of all claims, demands, liability, suits, judgments, costs and expenses, including reasonable attorney’s fees, arising out of or connected with this order or the goods which are subject thereof.

16. CONFLICTING PROVISIONS

Any terms, conditions or provisions of any instrument issued by Seller in connection with the subject matter or this order, which are in addition to or inconsistent with the terms and conditions expressed herein, shall not be binding on Buyer in any manner whatsoever unless Buyer specifically accepts them by signing the instrument in which they are contained.

17. CONFIDENTIALITY

Vendor agrees to treat as secret and confidential matter all specifications, drawings, inventions, engineering data, processed, know-how and other information or materials furnished by mageba USA to Vendor. Vendor agrees to use such confidential matter solely and exclusively in the manufacture of the mageba USA products which are subject to this confidentiality restriction. Upon request by mageba USA, Vendor shall immediately deliver to mageba USA all such confidential matter.

Vendor will enforce this confidentiality restriction with respect to its officers and employees having access to this confidential matter.

If Vendor constructs any apparatus for production of mageba USA’s products, all such apparatus will be deemed confidential matter under this confidential restriction.

If Vendor breaches any provision of this confidentiality restriction, it agrees to indemnify and hold mageba USA harmless from and against any damage or loss that may result, including but not limited to, loss of profits, and without prejudice to any other or remedies which mageba USA might have.

The provisions of this confidentiality restriction shall survive beyond the termination of all business between mageba USA and Vendor.

The Purchase Order Terms and Conditions can also be downloaded here (as pdf file):

mageba USA Purchase Order Terms and Conditions (PDF, 249 kb)