For Buyer
Acceptance and Terms and Conditions. The purchase of goods identified on purchase orders submitted in conjunction with these Master Terms and Conditions ("Products") hereunder is conditioned upon the terms and conditions of this Master Terms and Conditions agreement (“Terms”). These Terms shall apply and are incorporated into every subsequent purchase order until superseded by later terms and conditions issued by TPP (“Buyer”). No other terms or conditions including, without limitation, Supplier’s standard printed terms and conditions on Supplier’s proposal, order acknowledgment, invoice or otherwise, will have any application to any purchase between Buyer and Supplier unless specifically accepted in writing by Buyer.
Buyer's Commitment. Unless otherwise specifically agreed to in writing by Buyer, Buyer shall not be responsible for any of Supplier’s material commitments or production arrangements. Supplier shall be solely responsible for managing its’ own inventory with respect to Products purchased and sold hereunder.
Pricing. (a) Product Pricing is based on the currency of the Buyer’s invoice and in accordance with the exchange rate of the date of payment. (b) Prices are not subject to increase for the duration of the purchase order. No charges or price increases of any kind shall be allowed unless specifically agreed to by Buyer in writing. (c) Supplier warrants that it is selling Products to Buyer at the lowest or most favorable prices that it offers substantially similar products to other buyers. (d) If during the term of the purchase order, Buyer receives a bona fide offer from another supplier to supply any Product at a price below that in effect for the Products purchased under the purchase order and Buyer presents reasonable evidence to Supplier then Supplier will meet the price for the Product for the duration of purchase order or if Supplier fails to meet such price, then Buyer, shall have the right to purchase the Product from the other supplier, as well as the right, but not the obligation, to terminate the purchase order without liability. (e) The prices set forth on this purchase order include all applicable national and local taxes, if any, whether or not such taxes are set forth separately on invoices to Buyer. If any manufacturer’s excise or other similar or different tax is included in or added to prices paid to Supplier for the goods sold to Buyer hereunder and if such tax, or any part hereof, is hereafter refunded to Supplier, then Supplier shall immediately reimburse Buyer the amount as such.
Termination Without Cause. In addition to any rights under these Terms, Buyer reserves the right to cancel all or any part of the purchase order without cause by written notice to Supplier. Upon such termination, Buyer shall not incur any further cost or liability to Supplier except for Products delivered previously pursuant to the purchase order. 5) Termination for Cause. Should Supplier (i) become unable to pay its debts as they mature, or become in any way the subject of a bankruptcy petition, (ii) have a change in ownership or management that Buyer deems to be adverse to Buyer, and/or (iii) materially default in the performance of any provision of the purchase order, Buyer may in its discretion terminate the purchase order for "cause" by giving Supplier written notice thereof. If Supplier corrects the cause giving rise to the notice to the satisfaction of Buyer within five (5) business days after notice, Buyer may void the termination. In the event Buyer terminates the purchase order pursuant to this Section
Buyer shall have all rights and remedies available under law and equity.
Inspections. Buyer shall have the right to reject any nonconforming Products and Supplier shall assume title and risk of loss of all nonconforming Product and shall promptly reimburse Buyer for all costs incurred by Buyer as a result of such rejection of nonconforming Products. Payment for Products delivered or inspection by Buyer shall not constitute acceptance of the Products and shall not relieve Supplier of its warranty or other obligations hereunder. If required, Buyer reserves the right for on-site verification of the Supplier’s Product and/or processes. Failure of Buyer to inspect any Product shall not be construed as a waiver of the Buyer’s right to reject any such Product as nonconforming goods.
Warranties. Supplier warrants that all Products sold to Buyer will be (i) free of any claim of any nature by any third person and that Supplier shall convey clear title to Products to Buyer, (ii) of merchantable quality free from all defects in design, workmanship and materials, and shall be fit for the particular purposes for which they are purchased, (iii) in compliance with all applicable laws, rules and regulations, and (iv) manufactured and provided in strict accordance with the specifications, designs, drawings, or other requirements including performance specifications. The warranties set forth in this Section 7 shall extend for a time period equal to timeframe extended by Buyer to its customers for units in which the Products are used (“Buyer’s Units”). The warranties contained in this Section are in addition to and are not be construed as restricting or limiting any warranties or remedies of Buyer, express or implied, which are provided by these Terms or law. Any attempt by Supplier to limit, disclaim or restrict any such warranties or remedies of Buyer, in any manner whatsoever shall be null, void, and ineffective. Inspection, test, acceptance, or use of the Products in Buyer’s Units shall not affect the Supplier’s obligation under this warranty, and shall survive such inspection, test, acceptance, and use. Upon notice from Buyer that a good supplied hereunder failed within the warranty timeframe, in addition to any rights or remedies Buyer may have under these Terms or at law, Supplier shall reimburse Buyer for all direct or indirect costs incurred by Buyer as result of such failure including all repair and replacement costs and Supplier shall replace such defective good at no cost to Buyer. Warranty failures shall be returned to Supplier at Supplier’s expense and at Buyer’s discretion. This provision shall survive termination or expiration of any purchase order or supply agreement.
Supplier Changes. Supplier shall not make any changes in the specifications, physical composition of, suppliers or subcontractors of, or processes used to manufacture the Products hereunder without Buyer's prior written consent. If any portion of the Products are provided by, or treated by, third parties prior to Supplier delivering such Products to Buyer, then any change in such third parties used by Supplier shall require Buyer’s approval.
Assignment. Unless Buyer has provided prior written consent, any partial or complete assignment by Supplier of right(s) or delegation of obligation(s), including subcontracting, shall be void. Notwithstanding any permitted assignment, such assignment shall not relieve Supplier of its obligations and liabilities hereunder.
Confidentiality. In connection with supplying the Product to Buyer, the Supplier may be presented with trade secret and other confidential information relating to the Buyer or its processes, products or operations which the Buyer has not authorized to be released to the public, including, without limitation, drawings, designs, specifications, financial information relating to the Buyer and the purchase price being paid by Buyer for Products (“Confidential Information”). Supplier will keep all Buyer Confidential Information confidential and will not disclose such Confidential Information to any third party or use such Confidential Information for any purpose other than providing Products to Buyer in accordance with these Terms and Conditions without the Buyer’s prior written consent. This provision shall survive termination or expiration of the purchase relationship.
Delivery and Delays. Specific requirements regarding delivery and packaging of Products shall be detailed in a purchase order or supply agreement. Delivery is not complete until Products have been actually received and accepted by Buyer as set forth herein. TIME IS OF THE ESSENCE WITH RESPECT TO DELIVERY UNDER THESE TERMS. If, for any reason, Supplier anticipates difficulty in complying with a required delivery date or meeting any other requirements of a purchase order or supply agreement, Supplier shall immediately notify Buyer. If Supplier does not comply with Buyer’s delivery requirements, in addition to such other rights and remedies it may have, Buyer may, in its sole discretion, (i) require delivery by the fastest way to meet the delivery dates in any purchase order or release at the sole expense of Supplier, (ii) submit a revised purchase order or release or (iii) terminate any purchase order or release without liability to Supplier. Supplier shall be liable to Buyer for all reasonable costs incurred by Buyer. This provision shall survive termination or expiration of any purchase order or supply agreement.
Indemnification. Supplier shall indemnify, defend and hold Buyer, and its officers, directors, employees and agents (collectively the "Indemnities") harmless from and against any and all damages, claims, losses, expenses, costs, obligations, liabilities, including without limiting the generality of the foregoing, liabilities for attorney's fees suffered directly or indirectly by an Indemnitee (including amounts paid by Indemnitee to settle any such claims) by reason of, or arising out of (i) any breach of any representation or warranty made by Supplier, (ii) any failure by Supplier to perform or fulfill any of its covenants or agreements or (iii) any litigation, proceeding or claim by any third party relating in any way to the obligations of Supplier. Supplier shall not consummate any settlement without an Indemnitee’s prior written consent. Supplier’s covenants of indemnity herein will continue in full force and effect notwithstanding the termination or expiration of any purchase order or supply agreement. In any claim against an Indemnitee by an employee of Supplier or any subcontractor or anyone directly or indirectly employed by any of them or anyone whose acts they may be liable, the indemnification obligations set forth in this Section shall not be limited in any way by or for Supplier or any subcontractor under any applicable worker’s compensation laws, disability or other employee benefit laws. This provision shall survive termination or expiration of any purchase order or supply agreement.
Patents. Supplier warrants that all Products sold hereunder do not infringe any patents or intellectual property rights of any third party.
Use of Name; Advertising. Supplier shall not use Buyer’s name, logo, trademark or any other proprietary information for any purpose whatsoever, including but not limited to any advertising, without the express prior written approval of Buyer.
Liens. Supplier shall pay for all labor, services, materials, equipment, parts, and other expenses incurred by it in connection with meeting Supplier’s obligations, and shall indemnify and defend and hold Buyer harmless against all claims and liens arising out of Supplier’s unpaid accounts. This provision shall survive termination or expiration of any purchase order or supply agreement.
Freight Terms. Unless otherwise agreed to by the parties, freight terms shall be F.O.B. Destination.
Export/Import. For each international shipment, Supplier shall include a priced invoice with the master packing slip and upon request shall furnish all other required export/import documents. Export credits shall belong to Buyer. Supplier, upon request, shall furnish all documents required to obtain export credits and custom drawbacks and shall identify the country of origin of the material used in these goods and the value added thereto in each country.
Invoices. Supplier agrees that all invoices or receiving documentation supplied by Supplier must contain the following information: Control number, PO number, good or item number, description of each good or item, sizes, quantities, and unit prices, a statement that the invoice is subject to the Buyer’s Master Terms and Conditions and any other information as requested by Buyer.
Buyer's Property. All tools, gauges, dies, fixtures, and patterns furnished by Buyer, or which Buyer specifically authorizes Supplier to acquire for work on this order, shall be the property of Buyer. They shall be marked in such a manner as to clearly and conspicuously document that they are property of the Buyer. They shall be listed and maintained in suitable condition to do the work by and at the expense of the Supplier, and returned to Buyer at any time upon request, F.O.B. Supplier's plant. Supplier shall maintain adequate insurance on the above and furnish a certificate of insurance to Buyer if Buyer so requests.
Set-Off. Buyer shall have the right at all times to set off any amount owing from Supplier to Buyer.
Quality Improvement. Supplier agrees to participate in Buyer’s quality initiatives, as reasonably requested by Buyer, and to devote sufficient resources thereto.
Buyer’s Changes. Buyer shall have the right to request changes of any kind to any purchase order or release. If such requested change causes a material increase or decrease in Supplier’s costs required to perform Buyer's requested change, Supplier shall immediately notify Buyer in writing and an agreed upon equitable adjustment shall be made. Supplier shall not implement such change request until such time as resolution of any adjustment occurs.
Waiver. These Terms cannot be rescinded, modified or waived except in writing, signed by an authorized representative of Buyer.
Governing Law. These terms and any purchase between Buyer and Supplier shall be construed and enforced according the laws of the P.R.C. Any claims arising as a result of or with respect to these Master Term and Conditions or the Purchase Order(s) to which they apply shall be brought exclusively in a court of competent jurisdiction in Beijing, P.R.C.
Entire Agreement. These Terms, along with any accompanying purchase order, release or supply agreement set forth the entire and only agreement between the parties regarding the subject matter and supersede any and all prior or contemporaneous agreements, understandings, or proposals whether written or oral, between the parties.
Payment Terms. Unless otherwise agreed upon by both parties, Payment terms shall be Net 60 from date of invoice.
Design, Manufacturing and Intellectual Property Rights. Supplier agrees that where Supplier undertakes activity of a research, development and/or design nature using information provided by Buyer, Buyer shall own all rights in any resulting work product, including without limitation all know-how, trade secrets, copyrights and other forms of intellectual property and Supplier shall take all necessary steps to ensure that Buyer obtains full legal title in and to said rights.
Tooling Design and Development Rights. If this purchase order is for the design and production of dies or tooling, Supplier shall disclose and does hereby assign (and shall take all actions necessary to evidence such assignment), to the Buyer, on a royalty-free basis, any and all inventions, improvements or developments, each whether patentable or not, which Supplier may make or assist in making in the course of such development. Supplier assigns to the Buyer, all patents and applications for patents in connection with any such invention, improvement or development and to cause every appropriate person employed by or associated with it to enter into an agreement under which such person shall disclose and assign to Supplier or Buyer all inventions and execute all papers and do all acts deemed necessary by Supplier or Buyer relative to assignment and patent protection of such inventions. In addition, all information, ideas, results and data developed by Supplier as a result of developmental work contemplated by this purchase order shall be transmitted by Supplier to Buyer and shall become the exclusive property of Buyer, and shall be regarded by Supplier as confidential and not be divulged to any third party or employee by Supplier otherwise than in connection with this order. Supplier hereby warrants that it is free to enter into this agreement and has no obligations or requirements under any other agreement contrary to any of the terms and conditions contained herein.
Tooling Warranty. If this purchase is for the design and/or production of dies or tooling, Supplier agrees to cooperate with Buyer or its agents to determine the maximum capability that the tooling or dies are capable of running. In addition to the other warranties set forth in these Terms and Conditions, Supplier warrants that the tooling or dies delivered pursuant to this purchase order shall be capable of running.
For Supplier
The sale of goods described on the face side hereof (“Goods”) is made on the express condition that Buyer assents to the promises, terms, and conditions set forth below, whether or not they are additional to or different from any terms and conditions proposed by Buyer. TPP (“Supplier”) expressly objects to Buyer’s additional, different or conflicting terms.
Deliveries. The Goods will be delivered FOB place of shipment unless otherwise specified on Buyer’s order, shipment may be made by the method or carrier deemed most feasible by Supplier. Freight allowances, if any, are based on rates prevailing on the date of price quotation. Buyer shall pay increases due upon due date for payment of Goods. The Goods furnished hereunder shall be produced and their amounts determined in accordance with Supplier’s standard practices. Orders of bulk tube and random lengths shall be provided within fifteen percent (15%) (plus or minus) of ordered quantity unless otherwise specified on the work order. Orders of fabricated produced parts, other than random length, will be provided within ten percent (10%) (plus or minus) of ordered quantity unless specified on the work orders. Buyer agrees that among Supplier’s standard practices are included the measurement of tubing by weight and converting the weight to footage or pieces, in addition to direct counting. All Goods, however, including those produced to meet exact specifications, shall be subject to trade practices, tolerances and variations.
Cancellations. Buyer may not cancel any order for Goods unless agreed to in writing by Supplier. Supplier reserves the right to cancel any order for Goods owing to (a) its inability to perform due a Nonliability Event (as defined below); (b) a change in the identity of the Buyer; (c) a failure on the part of the Buyer to pay its account when due; or (d) for any other reason that Supplier finds it impossible, despite its best efforts, to perform hereunder.
Risk of Loss. After delivery of the Goods to the carrier, and in other circumstances as provided by law, Buyer shall bear all risks of loss, whether or not the products so delivered are conforming or non-conforming, whether or not a right of rejection exists in Buyer’s favor, and whether or not Buyer rightfully revokes acceptance. The occurrence of any such risk shall not release Buyer from its obligations hereunder.
Warranties. Supplier warrants only that the Goods conform to Supplier’s published specifications, if any, and the description on the face hereof. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INLUDING ANY WARRANTY WITH RESPECT TO NON-INFRINGEMENT OF THE PATENT RIGHTS OF OTHERS OR ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR USE.
Credit. Any credit is subject to final approval by an authorized officer of Supplier at its main office.
Payment Terms. Payment is immediately after invoice and before shipment, unless otherwise stated.
Modification. No modification of any promise, term or condition of sale shall be of any force or effect unless signed by an officer of Supplier.
Claims of Buyer. As a condition precedent to recovery of any claim of any kind, Buyer must comply with the following. All claims of any kind, except nonreceipt, must be made to Supplier within five days after receipt of shipment. Claims for non-receipt must be made in writing delivered to Supplier within twenty days after receipt of an invoice. Supplier’s liability for breach of warranty or contract shall arise only upon prompt return of the products claimed to be defective at Buyer’s expense and after due notice to Supplier of the claimed breach, as set forth in this paragraph 8.
Buyer’s Exclusive Remedies: Exclusion of Remedies. Any claim for nonreceipt of all or part of Buyer’s order or any other claim of any kind except breach of warranty shall be limited to the purchase price of the goods affected, as shown on the invoice, Supplier’s liability for breach of warranty shall be limited to the furnishing of a like quantity of the same products free from defects or, at Supplier’s option, to the refunding of the purchase price of the defective product. The foregoing shall constitute Buyer’s exclusive remedies. IN NO EVENT SHALL SUPPLIER BY LIABLE, WHETHER IN CONTRACT, TORT, WARRANTY, OR UNDER ANY STATUTE OR ON ANY OTHER BASIS FOR SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, MULTIPLE OR CONSEQUENTIAL DAMAGES SUSTAINED BY BUYER OR ANY OTHER PERSON OR ENTITY ARISING OUT OF SUPPLIER’S PERFORMANCE OR FAILURE TO PERFORM ITS OBLIGATIONS RELATING TO THE PURCHASE OF GOODS OR PERFORMANCE OF SERVICES, THE POSSESSION OR USE OF ANY PRODUCT, OR THE PERFORMANCE BY SUPPLIER OF ANY SERVICES, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT SUPPLIER IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM OR RELATED TO DOWNTIME, LOSS OF REVENUE, LOST PROFITS, LOST GOODWILL, LOST BUSINESS OR ANY OTHER FINANCIAL LOSS. Buyer waives all right of offset for any alleged obligation of breach of contract and breach of warranty (except as set forth herein), negligence, strict liability in tort, and/or other tort. The waiver, agreement and release in the foregoing sentence is binding upon Buyer’s successors in title and assigns.
Risk of Supplier’s Nonperformance. The following shall be hereinafter known as the “Nonliability Events”: action by governmental authority, public enemy, insurrection, rebellion, or riot; fire; explosion; flood; severe weather conditions; accidents; labor trouble or strikes; shortage of inventory, raw material, power or fuel; difficulties with equipment or transportation; or any other cause or events beyond Supplier’s control. In the event of delays in delivery or nondelivery of the goods which, directly or indirectly, were caused by a Nonliability Event or to which a Nonliability Event contributed, Supplier shall not be liable for damages, whether direct, incidental, or consequential, and (a) the time for performance shall, at Supplier’s option, be extended in whole or in part until the termination of the Nonliability Event and for an additional period thereafter reasonably necessary to cure the effects thereof, or (b) at Supplier’s option, a part or all of the Goods affected may be eliminated from the contract of sale, without any liability to Supplier; and the contract price shall be appropriately reduced.
Prices, Taxes and Other Additional Charges. Prices on material covered may be adjusted at Supplier’s option. Supplier may adjust prices (a) to those Supplier has in effect at the time of shipment; (b) in the event that Supplier cancels, to cover labor expended, material procured, processed or partly processed, and reasonable overhead expenses applicable thereto; and in the event of (c) delays acceptable to Supplier or (d) Supplier’s specific consent to delivery material beyond a twelve month period from the initial contract date, to cover the additional charges involved through (c) or (d). In addition to the price for the Goods, Buyer will pay Supplier the amount of any excise, sales, use, or similar tax relating to the Goods or their sale, and any freight (unless there is an express freight allowance) stop-over charge, lot loading charge, demurrage charge or the like relating to the transportation or storage of the Goods, which Supplier is legally obligated to pay, within ten days after the date of an invoice for the charge.
Assignment. The contract for sale of the Goods is not assignable in whole or in part by Buyer without the written approval of Supplier, and any attempted assignment shall be void.
Supplier’s Non-Exclusive Remedies. Upon any breach by Buyer of any promise, term, and/or condition contained herein, including, but not limited to, the nonpayment by Buyer of any amount due hereunder, or if Supplier deems itself insecure, Supplier may, at its option, and without prejudice to or limitation of any other legal remedy hereunder, by law, or otherwise, resort to one or more of the following remedies: (a) suspend further deliveries, even though partial payment for undelivered Goods has been received; (b) demand adequate assurance of due performance, including but not limited to, the delivery to Supplier of a third-party bond satisfactory to Supplier; (c) declare the unpaid balance of the contract immediately due and payable; (d) collect from Buyer all costs of collection, including but not limited to, reasonable attorneys’ fees incurred in enforcing any right or remedy hereunder or in law, pertaining in whole or in part to the goods; and (e) reposes and/or reclaim the Goods or any part thereof. Buyer hereby agrees, upon demand, to assemble the Goods or any part thereof to Supplier, at Buyer’s expense, all in accordance with Supplier’s instructions. Buyer hereby grants Supplier a security interest in the Goods and any and all proceeds thereof and accessions thereto to secure all of Buyer’s obligations hereunder under this or any other agreement. Buyer hereby irrevocably appoints Supplier as Buyer’s lawful attorney-in-fact to execute and file all documents necessary to desirable to effectuate the purposes of this paragraph, including but not limited to, appropriate financing statement. A photo static copy of this document may be filed as a financing statement.
No Implied Waiver. The failure of one party to require performance by the other party of any provision of these Terms and Conditions shall not affect the right to require performance at a later time. The waiver by one party to a breach by the other of any provision of these Terms and Conditions shall not be a waiver of any later breach of the provision.
Statement of Responsibilities. Each customer or user of Supplier materials is solely responsible for determining the suitability of the material(s) selected for the intended application. Each customer or user must conduct its own studies and gain all necessary approvals and certifications as required for the intended finished product.
Integration Clause. These Terms and Conditions constitute the entire agreement between the parties with respect to the subject matter hereof and there are no agreements, understandings, representatives or warranties, except as expressly set forth herein. These Terms and Conditions supersede all previous and contemporaneous communications, representations, understandings and agreements. Any purchase orders submitted by Buyer shall be for administrative purposes only. These Terms and Conditions shall supersede any different, conflicting or additional terms used by Buyer in the ordering, shipment and receiving of Goods. Notwithstanding anything to the contrary herein, Supplier reserves the right to correct all stenographic or arithmetical errors which appear on the front of this Agreement, or any invoice relating hereto. |