Purchase Order Terms and Conditions
MBL International Corporation Purchase Order Terms and Conditions
Last Updated: 7/20/2017
These terms and conditions (these “Terms and Conditions”) shall be applicable to any purchase order and to all subsequent purchase orders received by Provider from Purchaser, whether received by mail, by telephone, or by electronic means, and that references or includes a link to these Terms and Conditions (each, a “Purchase Order“), until such time as Provider receives a revised edition of these Terms and Conditions. These Terms and Conditions shall apply to all transactions between Purchaser and Provider until such further notice. Please re-read the terms and conditions referenced in each subsequently issued Purchase Order that Provider receives because, by accepting such Purchase Order after a revised version of the terms and conditions has been posted, Provider shall be deemed to have accepted the revised version.
These Terms and Conditions, together with the Purchase Order, constitute and are referred to as the “Purchase Agreement.” “Purchaser” means MBL International Corporation and its divisions, subsidiaries and affiliates, its successors and permitted assigns, or such other related entity as specified in the applicable Purchase Order. “Provider” means the person or entity that provides goods or services to or on behalf of Purchaser, as specified in the applicable Purchase Order. Every Provider must submit a completed W- 9 form (Request for Taxpayer Identification Number and Certification) to the Purchaser prior to processing any Purchase Order. After a Provider is set up in the Purchaser’s purchasing system, future purchase orders will not require a W-9 submission, unless the Provider’s name or Tax ID number has changed.
Notwithstanding anything to the contrary contained herein, if Purchaser and Provider have executed an agreement which governs the purchase and sale of the Products or Services at issue, the terms of such agreement shall be controlling and shall take precedence over these Terms and Conditions and any additional or different terms contained in any document generated by Provider.
Purchaser hereby retains Provider to supply and perform, and Provider shall supply and perform, the materials, supplies, items or equipment (the “Products”) and/or the services (the “Services”), as the case may be, described in the Purchase Order. Nothing in the Purchase Agreement shall be interpreted to prevent Purchaser from obtaining from any other third party, or providing to itself, any or all such Products or Services or from ceasing to use Provider to provide such Products or Services.
1. ACCEPTANCE. A Purchase Order issued by Purchaser becomes a binding contract, together with and subject to these Terms and Conditions, when accepted by acknowledgment by Provider and/or commencement of performance by Provider thereon. Acceptance of a Purchase Order is expressly subject and limited to these Terms and Conditions and the terms and conditions on the face of the applicable Purchase Order as issued by Purchaser. Any additional or different terms and conditions set forth in a proposal, quotation, invoice or acknowledgment of Provider are hereby rejected and shall not constitute a part of the contract resulting from Provider’s acceptance of the Purchase Order, unless such terms and conditions are specifically and expressly incorporated in the Purchase Order by Purchaser. No change, modification, rescission or revision to the Purchase Agreement by Provider shall be valid unless in writing and signed by an authorized representative of Purchaser’s Purchasing Department. In case of any conflict between these Terms and Conditions and any terms and conditions on the face of a Purchase Order issued by Purchaser, the terms and conditions on the face of such Purchase Order shall control.
2. DELIVERY. Purchaser is entering into the Purchase Agreement in consideration of and in reliance upon the talent, skill, expertise and experience of Provider in providing the Products and Services. Provider shall ensure and shall perform delivery in accordance with the delivery schedule in the Purchase Order. No deviation from delivery schedules in a Purchase Order shall be allowed without the written authorization of Purchaser. All or any part of a Purchase Order may be canceled by Purchaser if shipment or delivery is not made by the date specified on the Purchase Order. Further, all or any portion of a Purchase Order may be canceled or suspended by Purchaser without liability, if such cancellation or suspension is caused by compliance with any law, order, regulation, request or imminent action of any government entity. Overshipments, regardless of cause, may be rejected, in Purchaser’s sole discretion. In all cases of overshipment, any excess not accepted may be returned at Provider’s expense. Likewise, when undershipments result in excess handling costs, such costs may be charged to, and shall be reimbursed by, Provider. The time of delivery of the Products and Services shall be of the essence of the Purchase Agreement.
3. PRICE. Provider represents that the price or prices specified in the Purchase Order do not exceed Provider’s current selling prices for the same or substantially similar items, whether to the government or to any other purchaser, taking into account the quantity under consideration. If during the term of a Purchase Order, Purchaser is able to purchase products of the quality and in the quantities herein specified and upon like terms and conditions at a price lower than the price stated herein, Provider, upon receipt of satisfactory written evidence of same, shall, at its option, meet such lower price or permit Purchaser to purchase the undelivered portion hereunder at such lower price. The quantity so purchased by Purchaser from others shall be deducted from the quantity covered by the applicable Purchase Order.
4. CHANGES. Purchaser shall have the right at any time, by written change order, to make changes in any one or more of the following: (i) quantity of Products to be delivered; (ii) method of shipping or packing; (iii) drawings, designs or specifications; (iv) place of delivery; and (v) delivery/completion schedules for Products or Services. If any such change order causes an increase or decrease in the cost of or the time required for the performance of the work under a Purchase Order, an adjustment as approved by Purchaser shall be made in price and/or delivery schedule, and the Purchase Order shall be modified accordingly. Any claim by Provider for adjustment under this clause shall be deemed waived unless asserted in writing within 10 days from receipt by Provider of notice of change. Price increases, extensions of time for delivery, and quantity change shall not be binding on Purchaser unless memorialized in a written change order issued and signed by Purchaser. Provider shall not make any changes affecting the Products, including changes to the form, fit, function, properties, purity or any other characteristics of the Products, unless Provider obtains the prior written approval of Purchaser.
5. INVOICES. Provider’s invoices and original bills of lading or express receipts shall be mailed or e-mailed to email@example.com no later than the day after each shipment is made and must be as of the date of mailing. Individual invoices shall be issued for shipments applying against each Purchase Order. Purchaser reserves the right to take advantage of cash discounts in cases where delayed receipt of invoices due to Provider’s failure to comply with invoicing instructions causes delay in orderly processing. If transportation is F.O.B. or EXWORKS origin and transportation charges are for Purchaser’s account, ship at released value rates that shall produce lowest transportation cost via Purchaser’s designated carrier. When Purchaser’s carrier is not used and that results in higher transportation charges for Purchaser, the excess charges shall be deducted from Provider’s invoice prior to payment.
6. EXTRAS. No charges of any kind, including charges for boxing or cartage, shall be allowed unless specifically agreed to by Purchaser and specified on the applicable Purchase Order. In the event travel and other out-of-pocket expenses are included in a Purchase Order, Purchaser shall reimburse Provider only for Provider’s actual, reasonable, proper, out-of-pocket expenses, with no additional overhead, profit margin, administrative charges, handling fees, or other markup, directly attributable to the Purchase Order in accordance with Purchaser’s Travel Policy. Purchaser shall provide Provider with a copy of Purchaser’s Travel Policy upon request.
7. ASSIGNMENT. No right or obligation under the Purchase Agreement, including and any payments to be made thereunder, may be assigned, transferred, delegated or subcontracted by Provider, without prior written approval by Purchaser. No invoices may be rendered other than by the Provider named in the Purchase Order, without prior written approval by Purchaser. Subject to the foregoing, if Provider should use a subcontractor (as approved by Purchaser), Provider shall be fully responsible for goods provided and services performed by the subcontractor to the same extent as if the goods were provided or services were performed directly by Provider.
8. PROVISIONS APPLICABLE TO ONSITE PERSONNEL. Provider shall comply with all Purchaser’s policies for onsite guests. Provider shall not assign an individual to provide Products or Services, and shall remove any such individual from providing Products or Services, if the individual does not meet the requirements set forth in such policies. Provider shall comply with additional credentialing requirements (i.e., proof of immunizations and/or tests for immunity for certain diseases, and proof of training documentation) as requested by Purchaser.
9. VENDOR PERSONNEL. The relationship between Purchaser and Provider is one of independent contractor and nothing herein shall create or imply any relationship or agreement of joint venture, partnership, franchise, or hire. Provider and its employees and permitted agents (“Provider Personnel”) providing Products or performing Services hereunder are and shall at all times remain qualified and appropriately licensed under all laws, rules and regulations to perform their obligations under the Purchase Agreement and are otherwise suitable to perform under the Purchase Agreement in accordance with good industry practice. Purchaser shall have the right to request the removal and replacement of any Provider Personnel providing Products or Services at any time for a lawful reason.
10. PRODUCTS. If samples are requested by Purchaser, Provider shall not forward quantity shipments until Purchaser has approved in writing Provider’s samples processed or fabricated by means of the tooling and process methods to be used in such quantity production. Provider shall maintain an inspection system satisfactory to Purchaser covering all manufacturing equipment, materials and supplies, all of which shall be subject to inspection and testing by Purchaser at all times and places during or after manufacture. All Products are subject to inspection and acceptance by Purchaser, notwithstanding inspection and/or testing of the source by Purchaser or any prior payments. Any rejected Products shall be returned at Provider’s expense or destroyed per Provider’s request and no replacements of such defective supplies shall be made unless specified by Purchaser. Purchaser reserves the right to reject all defective Products and return same to Provider for full reimbursement or at Purchaser’s option for replacement or correction, in either of which events Purchaser shall be entitled to reimbursement for all expenses incurred by Purchaser for transportation, handling, boxing and packing, and for materials in connection therewith. If Provider fails to promptly replace and correct rejected Products to Purchaser’s satisfaction, Purchaser may purchase or otherwise replace or correct such supplies and Provider shall be liable to and promptly reimburse Purchaser for any excess costs incurred thereby.
11. CONFIDENTIALITY; PROPRIETARY RIGHTS. Provider agrees to protect and keep confidential trade secrets and other data and information of Purchaser or its affiliates, personnel and third parties that is disclosed to or accessed by or on behalf of Provider (“Confidential Information”), including the features of any devices, tools, patterns, designs, drawings, engineering data or other technical or proprietary information furnished by Purchaser. Provider further agrees to (i) protect Confidential Information against disclosure to unauthorized persons, (ii) use Confidential Information solely for the purposes set forth in the Purchase Order and (iii) not use, directly or indirectly, any Confidential Information for its own benefit or for the benefit of any other person, firm or corporation. Confidential Information shall not include information which is in the public domain other than by disclosure by Provider or Provider Personnel or due to any failure to comply with the confidentiality obligations hereunder. Provider agrees to return or destroy all Confidential Information or otherwise dispose of same as requested by Purchaser at the termination or completion of the Purchase Order or upon Purchaser’s request. Provider hereby irrevocably and absolutely assigns, transfers and conveys (and shall cause all Provider Personnel to so assign, transfer and convey) to Purchaser (or, at Purchaser’s request, to any other designee specified by Purchaser in writing) all rights, title and interests for the entire world, in and to all deliverables (both as individual items and/or as a combination of components and whether or not the Products and/or Services are completed), work product, designs, models, drawings, photographs, design inventions, processes, and other inventions made, conceived or provided by or on behalf of Provider under or in the course of performing under the Purchase Agreement (the “Work Product”). Provider shall promptly disclose to Purchaser all designs, models, photographs, drawings, design inventions, processes, and other inventions made or conceived by Provider in the course of the performance under the Purchase Agreement. Provider agrees to sign, execute, and acknowledge or cause to be signed, executed and acknowledged, without cost, any and all documents and to perform such acts as may be necessary, useful or convenient for the purpose of securing to Purchaser or its nominees patent, trademark, copyright, or other proprietary protection throughout the world upon all Work Product. Ownership of Work Product (other than the Products themselves where title shall pass as set forth below) shall vest in Purchaser (or such designee) immediately upon creation of the same, with full title guarantee and free from all encumbrances and other rights of whatever nature exercisable by any third party, together with the right to take action for any past, present and/or future infringement and claim damages and other remedies in respect of any infringement or alleged infringement. Provider hereby irrevocably and unconditionally waives and shall procure that all Provider Personnel irrevocably and unconditionally waive any moral rights in or relating to any Work Product and shall on request provide Purchaser with written evidence of such waiver. Provider shall, immediately upon Purchaser’s request, or on the termination, cancellation or expiration of the Purchase Agreement, turn over to Purchaser all Work Product held by or on behalf of Provider, together with all copies thereof.
12. WARRANTIES. Provider hereby makes the following representations and warranties: (i) all Products delivered under the Purchase Order shall be merchantable, safe, and free from defects in material, design and workmanship (including damage due to unsatisfactory packaging by Provider), and all Products and Services delivered shall be strictly in accordance with Purchaser’s specifications, drawings, and approved samples, if any, and suitable for the intended purposes; (ii) all Services are performed in accordance with industry standards and in a professional, workmanlike manner, and all Products (including elements, components and the method of manufacture thereof), Services and the use of any Products or Services do not infringe or violate any patent, trademark, copyright or other proprietary right of a third party; (iii) Provider is not debarred and Provider has not, to its knowledge, used in any capacity in connection with the filling of the Purchase Agreement the services of any individual or person debarred by the United States Food and Drug Administration (or similar agency outside of the United States); (iv) all Products and Services and the manufacture and provision thereof shall comply with all applicable laws, regulations, rules or orders (“Laws”), including all safety and health regulations; (b) all Products shall be shipped in full compliance with packaging, labeling, shipping, and documentation requirements, including requirements concerning hazardous materials, substances, and waste of all governmental agencies or authorities regulating any segments or modes of transportation employed to effect delivery of such Products to Purchaser (or its designee); and (c) all hazardous materials, substances, and waste shall be packaged, marked, and labeled in accordance with the applicable Laws. The warranties of Provider shall not be deemed to be exclusive, and together with any service warranties and guarantees, if any, shall survive acceptance and payment, and shall run to Purchaser, its successors, assigns, customers and the users of Products and Services.
13. RISK OF LOSS; TITLE. Provider assumes (i) all risks of loss or damages to all Products until the delivery thereof as herein provided, and (ii) all risks of loss or damage to any Products or elements or components thereof, rejected by Purchaser or as to which Purchaser has revoked its acceptance from the time of such rejection or revocation. Title in the Products shall pass to Purchaser (or its designee) upon the delivery of Products to Purchaser (or its designee), free from any third party rights or interests (including liens, charges and options), unless payment for the Products is made prior to delivery in accordance with the Purchase Agreement, in which case title to the Products shall pass to Purchaser (or its designee) once payment has been made for the Products by Purchaser. Provider shall, at its sole expense until delivery of the Products, insure the Products against all risks to their full replacement value. Provider agrees that in any case where freight regulations covering goods transported by common carrier establish a maximum limit on the carrier’s liability for loss or damage suffered in transit, Provider shall be liable to Purchaser for any loss or damage in excess of such maximum limit up to the full price of the Products.
14. INDEMNITY. Provider shall indemnify and hold Purchaser and its affiliates, directors, officers and assigns harmless against all expense, claims, damages, demands or liabilities arising out of (i) breach by Provider or Provider Personnel of any of the terms of the Purchase Agreement and Provider or Provider Personnel performance under the Purchase Agreement; (ii) the use of negligent services or defective materials; (iii) injury to Provider Personnel; and (iv) personal injury or property damage in connection with Provider’s provision of the Products and Services. In furtherance of the foregoing indemnity and not in limitation thereof, Provider agrees that Purchaser shall be entitled to all incidental damages resulting from a breach by Provider, including all expenses reasonably incurred in inspection, receipt, transportation, and care and custody of goods or services rightfully rejected; any commercially reasonable charges, expenses, or commissions incurred in effecting cover; and any other reasonable expense incident to a delay or breach by Provider.
15. INSURANCE. Provider shall maintain the following insurance with an insurance company or companies authorized to do business under the Law of the state in which the work is to be done or materials furnished: Workers’ Compensation Insurance covering its obligations under the applicable Law or Laws and Comprehensive General Liability Insurance (including Contractual and Completed Operations liability for the obligations assumed hereunder) with a minimum combined single limit of $500,000 per occurrence. Upon Purchaser’s request, certificates of said insurance shall be filed with Purchaser and shall provide for 30 days prior written notice of cancellation or of material change in said insurance. The liability insurance limits shall in no way be construed as a limit on Purchaser’s right of indemnity hereunder.
16. TERMINATION. In addition to its other rights hereunder, Purchaser may terminate for cause the Purchase Agreement order or any part thereof if Provider breaches any of the provisions of the Purchase Agreement or if Provider becomes insolvent or the subject of any processing under the Law relating to bankruptcy or the relief of debtors. Purchaser may terminate the Purchase Agreement or any part thereof at any time for convenience. Upon Provider’s receipt of such notice from Purchaser, Provider shall discontinue providing the Products and Services in accordance with Purchaser’s instructions and shall not incur any further fees or expenses, except as authorized in writing by Purchaser. Upon expiration or termination of the Purchase Agreement, Provider shall deliver to Purchaser (or its designee) all Tools, Work Product and inventory that are finished works or works in progress, and all Confidential Information. The expiration or the termination of the Purchase Agreement does not affect any assignments granted or ownership rights regarding the Work Product.
17. GOVERNING LAW. The Purchase Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, excluding any conflict-of-law provisions. The venue for any dispute hereunder shall be a court of competent jurisdiction located in Massachusetts, except that either party may seek temporary injunctive relief in any venue of its choosing. The parties acknowledge and agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to the Purchase Agreement.
18. TAXES. Each party is responsible for its own taxes, including property taxes it owns or leases, income taxes on its business and any other taxes incurred by such party in connection with its business and the performance of its obligations hereunder. Purchaser shall be responsible for any transaction taxes properly collectible from Purchaser under applicable law, and Provider shall be responsible for payment of any transactions taxes properly borne by Provider under applicable law, including all export and import taxes. The calculation of taxes shall not include any taxes related to intra-corporate transfers or intermediate supplies of the services between Provider and its affiliates or between Provider’s affiliates and related entities.
19. PUBLICITY. Provider shall not use Purchaser’s name in any press release, advertising or materials distributed to prospective or existing customers, or in any other public disclosure except as required by law or agreed to by Purchaser in writing. In no event shall Provider represent that any goods or services provided by Provider have been recommended, approved, certified or endorsed by Purchaser, or use Purchaser’s logos or other trademarks without Purchaser’s prior written consent.
20. SECURITY INTEREST. Provider hereby grants Purchaser a security interest in any Products, any work in process related thereto and all materials that are to be incorporated into such Products (collectively, the “Collateral”) for which Provider has received whole or partial payment. Provider hereby appoints Purchaser or its agents as Provider’s limited attorney-in-fact to execute and record all documents (including UCC financing statements) reasonably necessary to perfect or maintain the perfection of Purchaser’s security interest in the Collateral. Provider agrees to pay the bills of its suppliers promptly and to comply with a reasonable request for evidence of payment. Provider agrees to protect the interest of Purchaser as defined in this section by not permitting any attachments to the Collateral of liens, encumbrances or claims for labor or material and to protect and hold Purchaser harmless from all such claims, liens and encumbrances growing out of the design, manufacture, assembly, transit and installation of the Collateral.
21. SAFETY AND SECURITY. Provider shall use industry standard measures to ensure the safety, integrity and security of Confidential Information and the Products. Provider shall take appropriate steps to adequately protect Products (including elements and components thereof) and Purchaser’s data and property in Provider’s possession, including backup processes and procedures, and disaster recovery plans.
22. LIABILITY; STATUTE OF LIMITATIONS. In no event shall Purchaser be liable for anticipated profits or for incidental or consequential damages. Purchaser’s liability on any claim of any kind for any loss or damage arising out of or in connection with or resulting from the Purchase Agreement or from the performance or breach thereof shall in no case exceed the price allocable to the goods and/or services or unit thereof which gives rise to the claim. Purchaser shall not be liable for penalties of any description. Any action resulting from any breach on the part of Purchaser as to the Products and/or Services delivered hereunder must be commenced within one year after the cause of action has accrued. All rights and remedies are cumulative and are in addition to any other or future rights and remedies available under the Purchase Agreement, at law or in equity.
23. INVALIDITY, WAIVERS. The invalidity in whole or in part of any condition of this order shall not affect the validity of other conditions. No waiver of a breach of any provision of this order shall constitute a waiver of any other breach, or of such provision.
24. DELAYS. Neither party shall be liable for damages resulting from delay to the extent such delay is due to acts of God, acts of war, acts of terrorism, riot or epidemics, and not due to the fault or negligence of such party (excluding, for the avoidance of doubt, labor disputes or strikes) (each, a “Force Majeure Event”), and if such delay could not have been prevented by reasonable precautions, then such party shall be excused for such delay of those obligations affected by the Force Majeure Event for as long as such Force Majeure Event continues and so long as such party continues to use all commercially reasonable efforts to recommence performance whenever and to whatever extent reasonably possible without delay, including through the use of alternate sources, workaround plans or other means. The use of such alternate sources, workaround plans or other means shall cease upon the cessation of the Force Majeure Event. Provider shall promptly notify Purchaser if Provider decides or is forced to cease its operations or to discontinue the manufacture or supply of the materials ordered hereunder. In such event, Purchaser may, to the extent possible, purchase additional materials from Provider under the Purchase Order in order to meet Purchaser’s needs for such materials. Whenever any actual or potential labor dispute is delaying or threatens to delay the timely performance of this order, Provider shall immediately provide written notice thereof, including all relevant information with respect thereto, to Purchaser. If Provider fails to provide the Services, the fees under the Purchase Agreement shall be adjusted in a manner such that Purchaser is not responsible for the payment of fees (or other charges) for Products or Services that Provider fails to provide. Any interruption or delay, regardless of the reason, shall not give rise to any additional compensation obligations of Purchaser.
25. ENTIRE AGREEMENT. These terms and conditions shall survive the fulfillment of the Purchase Order. This Agreement constitutes the entire agreement between the parties relating to the subject matter hereof.