Terms & Conditions Regarding Purchase Order

1. DEFINITIONS. "Buyer" means ACPT, Inc., its departments, its division, its subsidiary entities, its parent entities, and any other entity acting upon its behalf.  "Seller" means the party with whom Buyer is contracting.
"Order" means the instrument of contracting including this purchase order and all referenced documents, exhibits, and attachments.  "Products" means those goods, supplies, materials, articles, items, parts, components or assemblies described in the Order.

2. ORDER.  This order is Buyer’s offer to Seller.  All parties expressly agree that time is of the essence in the performance of this order.

3. ACCEPTANCE.  Seller’s Acceptance is expressly limited to the written terms of this order. No additional or different terms shall be binding.  Buyer hereby objects to any additional of different terms contained in Seller’s acceptance.  Any of the following acts by the Seller shall constitute acceptance: signing and returning a copy of this order; commencement of performance, or informing Buyer of commencement.

4. COMPLETE AGREEMENT.  This order is the complete and exclusive statement of all terms and conditions of agreement.  Buyer does not accept Seller’s terms and conditions offered either orally, or by Seller’s contract.

5. MODIFICATION.  No modification of this order (including any additional or different terms in Seller’s acceptance in what ever form) shall be binding on Buyer unless agreed to in writing and executed by Buyer’s purchasing representative and an Officer and/or Director of Buyer.

6. PACKING AND SHIPPING.  Seller shall, unless otherwise stated in this order: (a) Prepare all products for shipment to prevent damage or deterioration, comply with Buyer’s packaging requirements, secure the lowest lawful transportation rates, and comply with carrier’s classifications, tariffs, and packaging instructions; (b) Pay all charges for preparations, packaging, crating, cartage, and shipping (except forward freight collect when F.O.B. place of shipment); (c) Number and mark each container consecutively with applicable Order and part number; (d) Indicate the container and Order numbers on the applicable bill of lading; (e) Place on copy of the packing sheet showing the Order number(s) inside the first container and attach one copy to the outside of the container.; (f) Instruct the Shipper to include the Order number on his invoice; (g) Do not declare the value of the shipment unless specified by Buyer.  Seller will notify Buyer, before shipping, of any conflict between Buyer’s and carrier’s packaging requirements.  Damage resulting from improper packaging will be charged to the Seller.

  Delivery shall be strictly in accordance with the specified quantities and schedule.  If at any time it appears Seller may not meet the schedule, Seller shall immediately notify Buyer of the reason and length of the delay.  Seller shall make every effort to avoid or minimize the delay to the maximum extent possible, including expenditures of premium time and most expeditious transportation.  Any and all additional cost, expense, or fees, incurred as a result in the delay shall be paid by the Seller.  Seller shall not make any delivery more than 5 days ahead of the date agreed to by the Buyer and Seller without written consent of Buyer.

8. F.O.B., TITLE AND RISK OF LOSS.  Unless otherwise specified, F.O.B. shall be Buyer’s designated location.  Risk of loss and title shall pass to Buyer upon acceptance.  Passing of title shall not constitute acceptance or relieve Seller of any other obligation.

  Seller shall send a separate invoice for each shipment.  No invoice shall be issued prior to shipment of products.  Payment due dates, including discount periods, will be calculated from the date of acceptance of products or correct invoice, whichever is later.  Unless freight and other charges are itemized, any discount will be taken on the full amount of invoice.  Buyer has the right, without loss of discount privileges, to pay invoices covering products shipped in advance of the schedule on the normal maturity after the date specified for delivery.  Payment shall not constitute acceptance of the products.

10. PRICE AND WARRANTY.  Seller warrants that the product’s price does not exceed the price charged by Seller to any other customer purchasing in like or smaller quantities under similar conditions.

11. QUALITY CONTROL.  Seller shall provide a quality control system acceptable to Buyer.  Manufacturing, certifications, inspection and testing records shall be kept complete and available to Buyer at Seller’s facility. Buyer may inspect these records and manufacturing plans and test the products at Seller’s plant at all reasonable times.  Buyer shall be entitled, at Buyer’s option to station representatives at Seller’s and its subcontractors and suppliers plant.  Seller shall furnish, free of charge, all reasonable office space, other facilities, and assistance required by Buyer’s representative at Seller’s plant.  Buyer’s personnel shall at all time observe Seller’s rules of conduct and security.  A like provision giving Buyer the rights set forth above shall be included in Seller’s subcontracts and purchase orders.

12. NON-CONFORMING GOODS.  If the Seller fails to deliver or delivers defective or nonconforming products, Buyer may: (a) Rescind this Order: (b) Accept such product at an equitable price reduction: (c) Reject such products: (d) Demand specific performance: or (e) Rework or replace products and Seller will be responsible for all costs, expenses and fees incurred as a result for said reworking or replacement of product.

13. INSPECTION & ACCEPTANCE.  Buyer, its customer, higher tier contractors, and the U.S. Government may inspect the products at all reasonable times and places including during manufacture and before shipment.  Seller shall provide all information, facilities and assistance necessary for inspection and acceptance shall be at destination in accordance with Buyer’s procedures.  If rejection of a shipment would result from Buyer’s normal inspection level under such procedures, Buyer may, at its option, conduct an above-normal level of inspection, up to 100% inspection, and charge the Seller the reasonable costs thereof.

14. WARRANTIES.  Seller warrants that all products delivered shall conform to all requirements of this Order, be free from defects in material, workmanship, design (unless Buyer provided the design) and fit for the intended purpose.  Buyer’s approval of designs furnished by Seller or any approval OF Seller’s "First Article" shall not relieve Seller of any obligations under this Warranty.  Seller’s warranties shall be enforceable by Buyer, Buyer’s customers and any subsequent owner, user or operator of the products.

15. CHANGES.  Buyer may, at any time, issue a written change order to: suspend performance of this Order, in whole or in part, make changes to the drawings, designs, specification, quantities, shipping, packing, delivery, the amount of Buyer Furnished Property, or reschedule performance.  If the change order causes an increase or decrease in the cost or time required to perform this Order, whether or not changed by the Order, an equitable adjustment shall be made in the purchase price and/or delivery schedule.  Any claim shall be unconditionally waived unless it is in writing and delivered to Buyer within 30 days of the date of the written change order.  If Seller claims the cost of any property made obsolete.  Buyer shall have the rights to acquire that property for the cost claimed.  Buyer has the right to examine any of Seller’s pertinent books and records fore the purpose of verifying Seller’s claims.  Nothing in this clause shall excuse Seller from proceeding with this Order as changed, including the failure of the parties to agree on any equitable adjustment to be made under this clause.

16. TERMINATION FOR CAUSE.  Buyer may terminate this Order, in whole or in part, for Seller’s default (including, but not limited to, insolvency; bankruptcy; reorganization; suspension of business; liquidation proceedings; appointment of any trustee or receiver for Seller’s property or business; assignment; failure to make progress under this order to the satisfaction of Buyer; or failure to provide assurances in accordance with Uniform commercial code section 2-609).  Upon termination under this clause, Seller may reserve the right to transfer title and deliver to Buyer all completed products and all partially completed products produced or specifically acquired for performance of this Order.

17. TERMINATION FOR CONVENIENCE.  Buyer may terminate, for its convenience, all or any part of this Order at any time by written notice to Seller.  Seller may submit any claim for equitable adjustment to Buyer within (30) days and submit Seller’s final termination settlement proposal within (45) days after receipt of notice of termination or such claim shall be absolutely and unconditionally waived.

18. DISPUTES.  Any dispute arising out of this Order shall be submitted to binding arbitration before a competent arbitrator having knowledge concerning Buyer’s and Seller’s respective trades.  Said arbitration will be held in Orange County, California, and in accordance with the rules of the American Arbitration Association.  Any decision arising therefrom shall be enforceable in any court of competent jurisdiction.  Such arbitration will by governed by substantive laws of the State of California.  The prevailing party shall be entitled to recover its reasonable attorney’s fees and costs, including the administration costs and fees associated with the arbitration process.  The only matter in which this provision may be waived is by the mutual written consent of Buyer and Seller.

19. SELLER’S DATA.  Any knowledge, information, drawings, designs, data or computer programs (herein called "Data") which Seller discloses to Buyer for this order that Seller has not marked with a limited rights legend shall not be considered proprietary to Seller or any way restrict Buyer’s use of such Data.

20. DISCLOSURE OR DISPOSAL.  Seller shall safeguard and keep secure all designs, processes, drawings, specifications, reports, data and other technical or proprietary information and features of all parts, equipment, tools, gauges, patterns and other items furnished or disclosed to Seller by Buyer.  Unless otherwise provided herein, or authorized by Buyer in writing, Seller shall use such information and items, and features thereof, only in performance of this Order, Seller shall not sell, or otherwise dispose of as scrap or otherwise, any completed or partially completed or defective Products without defacing or rendering such Products unsuitable for use.  Upon completion or termination of this Order, Seller shall, at Seller’s expense, dispose of all information, items and Products as required or directed by Buyer.

21. BUYER’S PROPERTY.  Buyer shall retain title to all property furnished to Seller.  Seller shall label, maintain and dispose of Buyer’s property, including but not limited to scrap, according to Buyer’s direction and Seller shall be responsible for all loss or damage to Buyer’s property.

22. SCRAP ALLOEANCE.  If in the performance of this contract Buyer agrees to supply Seller raw material(s), Buyer can hold Seller responsible for the reimbursement cost of any scrapped material(s).

23. RESPONSIBILITY FOR CLAIMS/INDEMNITY.  Seller shall at its own expense defend, indemnify and hold harmless Buyer from any claims, injury, or liability arising out of or related to this Order including attorney’s fees and costs.  In the event that Seller fails to defend, hold harmless, and indemnify Buyer, than Seller shall pay for any damages, attorneys fees, and any other fees, costs, and expenses that may be incurred by Buyer in the defense of any action related to the Order and/or in the prosecution of any action to enforce the provisions of the clause.

24. DELEGATION OR ASSIGNMENT of this Order is not permitted without Buyer’s prior written approval.

25. SUBCONTRACTING of this Order is not permitted without Buyer’s prior written approval.

26. COMPLIANCE WITH LAWS.  Seller warrants that it shall comply with all applicable Federal, State and local laws.  Seller shall submit certification that the product was produced in compliance with Fair Labor Standard Act. (29 U.S.C. 201-219) when requested.

27. NONWAIVER.  Any failure at any time of Buyer to enforce any provision of this Order shall not constitute a waiver of such provision or prejudice the right of Buyer to enforce such provision at any subsequent time.

28. PARTIAL INVALIDITY.  If any provision of this Order is or becomes void or unenforceable by force or operation of law, all other provisions shall remain valid and enforceable.

29. PATENT AND COPYRIGHT INDEMNITY.  Seller shall defend and indemnify Buyer, Buyer’s customers, and any subsequent seller or user of the Products against all claims and proceedings alleging infringement of any patent or copyright of any Products delivered under this Order, and Seller shall hold Buyer, Buyer’s customers and subsequent sellers or users, harmless from any resulting liability and loss.  Seller’s obligation shall not apply to Products manufactured pursuant to designs developed and furnished by Buyer not to infringement arising from the use or sale of Products solely for the purpose for which they were designed or sold to Buyer.

30. INSURANCE REQUIREMENTS.  Seller and its subcontractors shall procure and maintain worker’s compensation, comprehensive general liability, bodily injury, property damage insurance and advertising injury coverage, in an amount no less the five hundred thousand dollars ($500,000.00), and such other insurance as directed by the Buyer.  Seller shall instruct its insurance carrier(s) to provide Buyer’s Risk Management department thirty (30) days advance written notice prior to the effective date of any cancellations or change in the term or coverage of any Seller’s required insurance.  When requested, Seller shall send a "Certificate of Insurance" evidencing Seller’s compliance with this provision.  Seller shall name Buyer as an "additional insured" under any policy of insurance required herein, throughout the duration of any performance pursuant to this Order.

31. LABOR DISPUTES.  Whenever Seller has knowledge that any present or potential labor dispute is delaying or threatens to delay the timely performance of this Subcontract, Seller shall immediately give notice to the Buyer including all relevant information.  Seller agrees to insert the substance of this clause, including this sentence, in any lower-tier subcontract where a labor dispute might delay timely performance of this subcontract.

32. ORDER OF PRECEDENCE.  In the event of any inconsistency between any parts of this Order, the inconsistency shall be resolved by giving precedence in the following order:
  1. Typed Purchase Order  
  2. Purchase Order Terms and Conditions
  3. Statement of Work
  4. Procurement Specifications/Drawing
  5. Other Referenced Documents


Terms & Conditions