Purchase Order General Terms and Conditions - Carl Zeiss

Purchase Order General Terms and Conditions
1. BUYER
Buyer as used herein shall mean Carl Zeiss NTS LLC., any corporation
which is a subsidiary or affiliate of Carl Zeiss IMT Corp., and any
authorized agent of Carl Zeiss IMT Corp.
2. ACCEPTANCE
Seller’s acceptance of this purchase order is limited to acceptance of
the express terms of the offer contained in the purchase order. Any
proposal for additional or different terms, or any attempt by seller to
vary in any respect any of the terms of the purchase order, in seller’s
acceptance shall not be affective and this purchase order shall be
deemed accepted by seller without such additional or different terms.
Buyer hereby notifies seller of buyer’s objection on any such additional
or different terms. If this purchase order shall be deemed an
acceptance of a prior offer by seller, such acceptance is expressly
conditioned on seller’s assent to any additional or different terms
contained herein. Shipment of materials pursuant to this purchase
order shall be deemed to constitute acceptance by seller of the terms
set forth in this purchase order.
3. SELLER’S PERFORMANCE
Seller shall perform strictly in accordance with this purchase order. Any
failure of buyer to require seller’s strict performance shall not be
construed as a waiver of buyer’s right to require strict performance
hereunder. Any waiver of strict performance to be valid must be agreed
to in writing by buyer. Acceptance of all or part of the materials
purchased hereunder shall not constitute a waiver of any claims that
buyer may have as a result of seller’s failure to perform strictly in
accordance with this purchase order.
4. DELIVERY
Time is of the essence with respect to all delivery dates specified
herein. In the event seller fails to deliver any materials of the quantity
and quality or within the time or times specified herein, buyer may
reject any materials and cancel all or any part of this purchase order,
without prejudice to buyer’s right to claim damages or to enforce any
other remedy provided by law.
5. CHANGES IN ORDER
The specifications, instructions, terms and conditions of this purchase
order cannot be changed, modified or varied by seller except by
agreement in writing signed by buyer. Buyer reserves the right to
make changes in specifications, quantity, and delivery schedules or
defer shipment of this purchase order or any part hereof, or cancel any
part of this purchase order at any time. Buyer shall not be responsible
for costs incurred by seller in connection with this purchase order after
the date of seller’s receipt of the change or cancellation notice.
6. SHIPPING
Each shipment made by seller under this purchase order is to be in
accordance with the freight terms and other shipping instructions
specified on the purchase order. Seller shall incur transportation
charges at the lowest published rail or motor carrier rate and all
charges in excess of such lowest published rail or motor carrier shall
be charged back to seller.
7. PACKING
No additional charges shall be paid by buyer for packing, packaging,
reels, boxes, crating, handling, cartage, storage or other extras except
upon the written agreement by buyer. Seller shall clearly mark each
package or shipment with buyer’s name and address, buyer’s part
number if applicable, description of contents, and purchase order
number. Loss of, or damage to, any materials not packaged or packed
in such a manner by seller as to ensure proper protection during
shipment shall be borne by seller regardless of the FOB point specified
on the purchase order.
8. TITLE AND RISK OF LOSS
Unless otherwise specified herein, title to, and risk of loss of materials
purchased hereunder shall remain with seller until such materials are
delivered to and accepted by buyer. Seller shall adequately insure the
materials until delivered to and accepted by buyer.
9. PRICE
The price specified on the purchase order is agreed to by the parties.
In the event that the price term is not fixed on the purchase order, the
parties agree that the price will be the prevailing market price for such
materials at the time of delivery, or the price last charged or quoted for
the same materials by seller to buyer, whichever is lower. By
acceptance of this purchase order, seller represents and warrants that
the prices to be charged for the materials hereunder will not violate and
applicable federal, state or local laws and regulations.
10. DISCOUNTS
Cash discounts will be measured from the date of receipt by buyer of
goods conforming to this purchase order or invoice, whichever is later.
11. INSPECTION OF MATERIAL
Materials are subject to buyer’s inspection and approval. Buyer shall
have the right to inspect the materials and to reject those materials
which do not strictly conform to this purchase order. Such inspection
by buyer may be made at the time of delivery of the materials or at
such time that the buyer commences to utilize the materials. All
materials are subject to buyer’s inspection and rejection
notwithstanding payments by buyer of all or any part of the purchase
price.
12. REJECTION OF MATERIAL
If any materials do not conform with this purchase order in any respect,
buyer reserves the right to reject such materials and if buyer so elects,
buyer may treat the failure to conform as a material breach of this
purchase order by seller and cancel any outstanding materials
hereunder, without prejudice to buyer’s right to claim damages or to
enforce any other remedy provided by law. All costs incurred and
damages sustained by buyer as a result of any rejections of nonconforming
materials, including, without limitation, transportation costs
and the expenses of unpacking, inspection, storing and reshipping,
shall be at seller’s expense. Seller shall not sell any materials made
according to buyer’s exclusive design to any other person or entity.
Buyer may elect to retain non-conforming materials in order to modify
or rework the non-conforming materials so as to permit buyer to meet
its schedules. The cost of making the materials conform to this
purchase order shall be borne by seller.
13. WARRANTY
In addition to all other warranties and conditions established by law,
seller hereby warrants that the materials (a) conform to the
specifications, drawings, samples or other descriptions furnished or
adopted by buyer, (b) are of merchantable quality, (c) are suitable for
the purpose intended by buyer, and (d) are of the best quality and
workmanship and free from defects in title, labor, material and
fabrication. Seller shall, when notified by buyer, promptly repair or
replace, without expense to buyer, any materials not conforming to the
requirements contained herein. In the event of failure of seller to repair
or replace, without expense to buyer, any materials not conforming to
the requirements contained herein. In the event of failure of seller to
repair or replace the materials as required herein, buyer may repair or
replace such material and charge seller the costs thereof. This
warranty shall run to buyer, its successors, assigns, customers and
users of its products.
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Purchase Order General Terms and Conditions
14. INDEMNIFCATION
Seller shall defend, indemnify and hold buyer harmless from and
against any and all loss, cost or damage of any nature whatsoever,
including attorney’s fees and disbursements, arising out of or in any
way related to any actual or alleged defects in design, quality and
workmanship of the materials sold hereunder.
15. PATENTS AND TRADEMARKS
Seller represents and warrants to buyer that the use or sale of any
materials delivered hereunder, or any part thereof, does not infringe
upon any valid existing patent, copyright, trademark, or trade secret of
another. Seller shall defend, indemnify and hold harmless buyer, its
successors, assigns, customers, and users of its products from any
loss, cost or damage, including attorney’s fees and disbursements,
arising out of or in any way related to any claims, suits or actions for
actual or alleged infringement of any such patent, copyright, trademark
or trade secret with respect to the use or sale of the materials
purchased hereunder.
16. CONFIDENTIAL INFORMATION
This purchase order is confidential between seller and buyer. Except
as required by law, no disclosure, description or other communication
of any sort shall be made by seller to any third person of the fact of
buyer’s purchase of materials hereunder or of the details and
characteristics thereof without buyer’s prior written consent. Seller
shall take such steps as may be necessary to preserve in confidence
and secrecy all information, documents and things received from buyer
in connection with the performance of this purchase order. All
improvements or inventions arising out of this purchase order are the
property of buyer and are to be assigned to buyer. Anything furnished
to seller by buyer pursuant to this purchase order, including without
limitation, samples, drawings, patterns and materials shall remain the
property of buyer, shall be held at seller’s risk and shall be return in
good order at buyer’s request, and except as required by law, no
disclosure or reproduction thereof in any form shall be made without
buyer’s prior written consent.
17. COMPLIANCE WITH APPLICABLE LAW
All materials sold hereunder have been produced, sold and delivered
to buyer in compliance with all applicable laws, rules, regulations and
standards, including, without limitation, the Fair Labor Standards Act.
18. TOOLS
Special tools, jigs, fixtures and test equipment acquired specifically for
performance of this purchase order, and the cost of which has been
included in computing the price specified on the purchase order or for
which buyer is to pay seller as a separate item as indicated on the
purchase order, shall, upon such payment, become the property of
buyer and shall be marked and held accordingly and shall not be used
in the manufacture of any articles for others. Unless otherwise agreed
upon, seller will bear all cost for special tools, jigs, fixtures and test
equipment.
19. INDEPENDENT CONTRACTOR
Seller acknowledges that in performing under this purchase order,
seller is operating as an independent contractor having the sole
responsibility to all persons employed by it including, without limitation,
exclusive liability for the payment of all federal, state, and municipal
unemployment and disability insurance, social security and any other
taxes and contributions incurred by reason of this purchase order.
Seller shall defend, indemnify and hold buyer harmless from and
against any and all loss, cost or damage of any nature whatsoever,
including attorney’s fees and disbursements, arising out of or in any
way related to any act or failure to act by seller or by any person
employed in connection with any labor supplied hereunder.
20. NOTICES
All notices, consents, requests, instructions, approvals and other
communications hereunder shall be in writing and given by personal
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delivery, registered or certified mail, return receipt requested, or by
Federal Express or like courier service to the address of buyer or seller
as shown on this purchase order or to such other address as any party
hereto may, from time to time designate in writing. Notices shall be
deemed to be effective on the date personally delivered, or three (3)
days after deposited in the United States mails as registered or
certified mail, or one (1) day after deposited with Federal Express or a
like courier service, as the case may be.
21. APPLICABLE LAW
This purchase order shall be governed by and construed under the
laws of the State of New York applicable to contracts made and to be
performed wholly within the State of New York. The parties hereby
submit to the jurisdiction of the courts of the State of New York. Venue
for any action arising under this purchase order will be proper only in
the Supreme Court of the State of New York, County of Westchester.
22. ENTIRE AGREEMENT
This purchase order is intended by the parties as a final expression of
their agreement as a complete and exclusive statement of its terms.
This purchase order supersedes any previous communications,
representations or agreements by either party whether verbal or
written. No representations, understandings or agreements have been
relied upon in making this purchase order other than as specifically set
forth herein. This purchase order can only be modified in writing signed
by the parties hereto. No usage of trade shall be effective to modify the
terms hereof.
23. NO WAIVER
Failure by buyer to enforce any term or condition hereof at one time
shall not constitute a waiver of the right to enforce such term or
condition in the future.
24. SEVERABILITY OF PROVISIONS
In the event that any one or more of the provisions contained in this
purchase order should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
25. ASSIGNMENT
Seller shall not assign or subcontract this purchase order or any part
thereof without the prior written consent of buyer. Such consents shall
not release seller from its obligations and liabilities hereunder. Any
assignment or subcontract of this purchase order without buyer’s
consent shall be void.
26. TAXES
Seller shall pay all local, state, and federal taxes that may be imposed
by law upon or on account of the sale of the materials shown on the
purchase order, unless otherwise agreed to in writing. Any tax that is
not included in the price shown on the purchase order shall be brought
to buyer’s attention and if acceptable to buyer, such tax shall be shown
separately on seller’s invoices. Any tax not separately shown shall be
deemed included in the purchase price shown on the purchase order.
27. EQUAL OPPORTUNITY
The Equal Employment Opportunity provisions in section 202,
paragraphs 1 through 7 of Executive Order 11246, as amended,
Executive Order 11701 relative to equal employment opportunity and
the employment of veterans, the Rehabilitation Act of 1973, as
amended, relative to equal employment of handicapped individuals,
and the Vietnam Era Veterans Readjustment Assistance Act of 1974,
as amended, relative to equal employment of disabled veterans,
special disabled veterans, veterans of the Vietnam Era, recently
separated veterans, and other protected veterans, and the
implementing rules and regulations there under are incorporated
herein by specific reference and Seller shall comply with the provisions
as applicable to this Order. During the performance of this order, the
seller agrees to comply with all federal, state and local laws respecting
discrimination in employment and non segregation of facilities
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Purchase Order General Terms and Conditions
including, but not limiting to, requirements set out at 41 CFR 60-1.4,
60-250.5 and 60-741.5, which equal opportunity clauses are
incorporated herein by reference. Seller shall comply with all
applicable provisions of Executive Order 13201 and related rules,
regulations, and orders of the Secretary of Labor, requiring nonexempt
federal contractors and subcontractors to post notices
informing their employees that they have certain rights related to union
membership and use of union dues and fees, which provisions are
incorporated herein by reference.
28. INSOLVENCY
If seller shall become insolvent or shall make an assignment for benefit
of creditors, or if a receiver or trustee shall be appointed of or for any of
seller’s property or business, this purchase order may be cancelled at
buyer’s option without liability.
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