Terms and Conditions of Purchase
These Terms and Conditions of Purchase (“Terms”) are hereby attached to and incorporated in that certain Purchase Order attached hereto as of the date of the Purchase Order (the “Effective Date”) and entered into between Ascent, Inc. (“Buyer”) and the seller set forth in the Purchase Order (“Seller”). To the extent that any terms hereof conflict with any terms set forth in the Purchase Order, the terms of the Purchase Order shall govern. Any proposal, acknowledgment, or document from Seller that includes different or additional terms that vary from any of the terms set forth herein or in the Purchase Order are objected to and disallowed. Capitalized terms used and not defined herein shall have the meaning ascribed to them in the Purchase Order.
- Warranty. Seller represents and warrants that with respect to all materials, supplies and equipment (collectively referred to herein as “Materials”) delivered and services furnished hereunder: (i) title shall be good, merchantable, rightful, and the Materials shall be free of any security interest, lien, or encumbrance; (ii) that all Materials will be new, free from defects in material and workmanship, be of quality, size, description and dimension required by Buyer, be fit for the purpose for which they are purchased, and meet the specifications provided by Buyer, if any, and that Seller’s services will be performed in a skillful and workmanlike manner; and (iii) the Materials, the process by which they are made, the use for which they are designed by Seller, and Buyer’s use of the Materials will not infringe any patent, trademark, copyright or other rights of any third parties (“Intellectual Property Rights”). This express warranty shall not be deemed waived by reason of either or both the receipt of the Materials and payment therefor by Buyer. The foregoing is in addition to any and all other express or implied warranties applicable to the Materials purchased hereunder. All applicable warranties may be assigned by Buyer to the ultimate purchaser.
- Compliance with Laws; Standards and Testing. Seller represents and warrants that all Materials furnished hereunder, and Seller’s manufacturing thereof, complies with all applicable laws, ordinances, rules and regulations (“Laws”).
- Indemnity. Seller will defend, indemnify and hold harmless Buyer, its affiliates, vendors, and their officers, directors, shareholders, employees, and agents from and against any and all loss, liability and expense by reason of: (i) any actual or alleged violation of Laws; (ii) any actual or alleged infringement of Intellectual Property Rights; (iii) injury, death or property damage resulting, in whole or in part, from any negligent act or omission on the part of the Seller or which may result from the installation, operation or use of the Materials furnished hereunder, (iv) a defect in the manufacture or design of the Materials supplied hereunder; or (v) any breach or alleged breach by Seller of any representation, warranty, or other provision of these Terms (as well as the Purchase Order in which they are incorporated). Upon notification, Seller shall promptly assume full responsibility for the defense of any suit or proceeding which may be brought against Buyer or any of its subsidiaries, affiliated companies, agents and vendors in connection with the above for alleged unfair competition resulting from similarity in design, trademarks, or appearance of the Materials or equipment. Seller shall further indemnify and hold Buyer, its subsidiaries, affiliated companies, agents and vendors harmless from any and all expenses, losses, claims, royalties, profits, and damages, including court costs and reasonable outside attorneys’ fees, resulting from the bringing of such suits or proceedings or the threat thereof and from any settlement, decree or judgment therein. Buyer reserves the right to control any such suit or proceeding.
- Cover; Delivery; Time is of the Essence. In case of default by Seller, Buyer may obtain the Materials and services from other sources and hold Seller responsible for any damages occasioned thereby. The dates of delivery and quantities specified herein are of the essence for this order and delivery must be effected within the specified time period. If deliveries are not made on time and in the quantities specified, Buyer reserves the right to cancel and to purchase the Materials and/or services elsewhere and hold Seller accountable therefor. Seller shall cooperate with Buyer in respect to all customs formalities applicable to the import or export of the Materials, shall be responsible for determining proper import or export classifications, and shall provide Buyer documentation to Buyer’s satisfaction for such classifications.
- Prices. Orders shall not be filled at prices higher than those quoted or charged to Buyer or specified herein. Unless otherwise agreed in writing, prices include packaging, labeling, crating, taxes, duties, shipping, and delivery.
- Delivery. Time is of the essence for any Purchase Order. Failure by Seller to meet delivery dates specified in Buyer’s Purchase Order (or the final delivery dates provided by Seller to Buyer prior to the Purchase Order if the delivery dates are not specified in the Purchase Order) may result in substantial damages to Buyer due to commitments to its customers and will constitute a material breach of the Purchase Order. Any extension of the delivery dates must be agreed to in a writing signed by both Seller and Buyer and embodied in an amended Purchase Order. Seller shall not ship Materials earlier than the delivery date specified in Purchase Order and shall provide Buyer’s contact listed on the Purchase Order a minimum of 48 hour notice advance notice of delivery.
- Inspection and Rejection. Materials are subject to inspection, testing, and acceptance by Buyer and the ultimate purchaser. Buyer shall have a reasonable number of days from the date of arrival to inspect the Materials and notify Seller of any non-conformity to the order specifications (including quality, quantity and delivery dates). Such inspection may not occur until final sale, installation and operation of the Materials to Buyer’s customers. Buyer reserves the right to reject any Materials, even after delivery and inspection at customer’s site, which do not fulfill the specifications of the order or time of delivery and: (i) return rejected Materials to Seller at Seller’s risk and expense for full credit at the order price without prejudice to any right to other damages for such breach, (ii) require Seller at Seller’s expense to replace rejected Materials at the unit price of this order, (iii) consider the order breached as to the rejected quantity and cancelled as to any unfulfilled portion of this order, and to hold Seller liable for such breach and cancellation, or repair or have repaired the rejected Materials and services and hold Seller responsible for any damages occasioned thereby. Seller is not relieved of the responsibility imposed by this clause, either as to proper packaging, quality, quantity of Materials or specifications, by reason of acceptance by Buyer.
- Choice of Law; Venue. The Purchase Order (including these Terms) between Buyer and Seller shall be construed, and the respective rights and duties of Buyer and Seller shall be determined, according to the laws of the State of California, without giving effect to its principles of conflicts of laws. The parties hereby agree that any action arising out of this Purchase Order will be brought solely in the Superior Court of California for the County of Contra Costa and the United States District Court for the Northern District of California, as applicable. Both parties hereby submit to the exclusive jurisdiction and venue of any such court. The UN Convention on Contracts for the International Sale of Goods shall not apply to this Purchase Order.
- Payment and Invoicing. Invoices and bills of lading showing full routing should be dated and mailed at the time of shipment and a separate invoice must be made for each destination showing point of shipment and how shipped. Invoices bearing transportation charges must be supported with attached original receipted transportation bills and, in the case of consolidated carload shipments, must show weight and rate. The discount period, if any, stated in the face of the purchase order shall be calculated from the date of receipt by Buyer of a proper invoice from Seller.
- Force Majeure. If the manufacture, transfer, receipt, or use by either party of any Materials covered hereby is prevented, restricted, or interfered with by reason of any event beyond the reasonable control of the party so affected, including labor disputes, civil commotion, war, fires, floods, inclement weather, governmental regulations or controls, casualty, government authority, strikes, or acts of God, pandemics, epidemics, local disease outbreaks, public health emergencies, government imposed quarantines, such party, upon prompt written notice to the other party (and in the case of Buyer, prior to actual shipment), shall be excused from making or taking deliveries hereunder to the extent of such prevention, restriction, or interference but, at Buyer’s option, deliveries so omitted shall be made upon notice thereof to Seller, upon cessation of such contingency.
- Assignment. Seller may not assign the Purchase Order (including these Terms), or any of Seller’s obligations hereunder without Buyer’s prior written consent in each instance. Any assignment in violation of this clause shall be null and void.
- Insurance. Seller shall maintain at its own expense at all times while performing hereunder occurrence-based liability insurance and product-liability insurance with a reputable and financially responsible carrier(s) satisfactory to Buyer for coverage in amounts not less than $1,000,000 million per occurrence, $2,000,000 million in aggregate, and all other insurance required by applicable law. Seller shall furnish insurance certificates as directed by Buyer, satisfactory in form and substance to Buyer, showing the above coverages, and providing for at least 10 days prior written notice to Buyer by the insurance company of cancellation or material modification. Buyer shall be added as an additionally insured party on all such policies.
- Seller’s Representatives. If Seller’s employees, subcontractors, consultants, or other representatives under Seller’s control perform any services at Buyer’s premises or at Buyer’s direction at the premises of others: (i) such persons shall comply with all rules and regulations of such premises; and (ii) Seller shall keep materials and the premises on which the work is performed free and clear of all liens for material and labor incident to the performance of Seller’s services hereunder.
- Termination. In the event of: (i) any proceeding voluntary or involuntary in bankruptcy or insolvency by or against Seller, or in the event of an appointment of a receiver or assignee for the benefit of creditors, with or without Seller’s consent; or (ii) any change in control and/or ownership of Buyer, Buyer may cancel any unfilled part of this order without any liability whatsoever on Buyer’s part.
- Buyer’s Property. All tools, dies, patterns, designs, molds, drawings, specifications, and other data or papers, and the like furnished by Buyer to Seller in connection herewith by Buyer remains the property of Buyer. In the event Materials furnished by Buyer to Seller include any intellectual property of Buyer, Seller is granted a non-exclusive, non-transferable, non-sub-licensable and non-assignable license required only for the production of Materials under this Purchase Order and shall use Buyer’s intellectual property only for that purpose. Except for this license, no right, interest, ownership or privilege of use of Buyer’s intellectual property shall inure to the benefit of Seller and Seller shall not disclose Buyer’s intellectual property to any third-party.
- Applicable Law, Jurisdiction/Venue And Attorneys’ Fees. This Agreement shall be delivered in, and shall in all respects be governed by, subject to, enforced and construed in accordance with the laws of the State of California including all matters of construction, validity, performance and enforcement. The Parties agree that the exclusive jurisdiction and venue of any action between the Parties arising out of, or in any way connected with the provisions of this Agreement, the subject matter hereof, the Parties mutual rights and obligations arising heretofore or hereafter or the performance of any of the terms and conditions hereof by either of the Parties hereto including any disputes that may arise following the expiration or termination of this Agreement, shall be the Superior Court of California for the County of Contra Costa and the United
- Complete Agreement. These Terms, any purchase order issued by Seller and any plans and specifications for the products (collectively, the “Agreement”) constitute the entire and exclusive agreement between Buyer and Seller, and no additional or different terms or conditions stated by Buyer shall be binding unless agreed to by Seller in writing. The Agreement supersedes all other prior agreements and discussions, oral or written between Seller and Buyer. Neither course of dealings, nor usage of trade, shall be relevant to supplement or explain any terms used in this Agreement, and this Agreement may be modified only by a writing signed by both Seller and Buyer. The failure of Seller to insist upon strict performance of any of the terms and conditions stated herein shall not be considered a waiver of any other terms or conditions or any of Seller’s other rights.