General Terms and Conditions of Purchase
1. DEFINITIONS “Buyer” means Positech Corporation “Purchase Order” means Buyer’s purchase order delivered to Seller. “Seller” means the party identified as Seller on the face of the Purchase Order. “Contract” means the Purchase Order, all documents incorporated by reference under the Purchase Order, these terms and conditions themselves with any confidentiality or secrecy agreement executed by Buyer and Seller, and all exhibits and amendments to all such documents. “Items” means any goods, leasehold interests or services to be provided or performed by Seller under the Contract. “Price” means the amount to be paid by Buyer to Seller under the Contract for the Items, which shall include any freight charges or sales, use or other similar taxes, and no such charges or taxes shall be paid by Buyer.
2. CONTROLLING PROVISIONS This Contract constitutes an offer by Buyer to buy the Items from Seller in accordance with the terms herein. If this Contract is deemed an acceptance of a prior offer by Seller, such acceptance is limited to the express terms and conditions contained herein. Seller’s acceptance of this offer is limited to the terms, covenants and conditions herein. Buyer hereby objects to and rejects any additional, different or varying terms proposed by Seller, except additional warranties by Seller, regardless of whether such terms would materially alter these terms and conditions. Seller’s proposal of additional or different terms shall not operate as a rejection of Buyer’s terms unless such variances are in the description, quantity, price, or place or date of delivery of the Items, and Buyer’s terms shall be deemed accepted without said additional or different terms.
3. ACCEPTANCE Seller shall be deemed to have made an unqualified acceptance of this Contract on the earliest of the following to occur: (a) Buyer’s receipt of a copy of this Contract, signed by Seller; (b) Seller’s acknowledgment of these terms and conditions or any purchase order submitted by Buyer from time to time; (c) Seller’s commencement of manufacture or delivery of the Items; (d) Seller’s acceptance of any payment from Buyer; (e) Seller’s failure to object to these terms and conditions within ten days of receipt; or (f) any other event constituting acceptance under applicable law.
4. BLANKET ORDER If the Purchase Order is designated by Buyer as a blanket order, Buyer shall be obligated to purchase only those quantities of the Items which it specifically requests under separate subsequent orders issued by Buyer to Seller.
5. PRICE The Price for the Items shall be that stated in the Purchase Order, unless such price exceeds the lowest price at which Seller is selling the Items or similar items to its other customers as of the date of delivery to Buyer, in which case the lower price shall control. If there is no price stated in the Purchase Order, the Price shall not be higher than that last charged or quoted Buyer for such Items by Seller. If there has been no charge or quotation by Seller to Buyer for the Items previously and if no price is set forth in the Purchase Order, Buyer shall have the right to return the Items with Seller paying the cost of transportation if Seller charges a price which is in excess of the lowest price at which Seller is selling such Items to its other customers as of the date of delivery to Buyer. If prior to delivery of the Items, Buyer is able to purchase a portion or all of the Items, or similar items of like quality, at a price which is less than the Price, Buyer shall notify Seller. Should Seller fail to meet such lower price, Buyer may, at its option, purchase from the other source at the lower price, in which event Buyer and Seller shall be relieved of their obligations under the Contract in respect of that portion of the Items or similar items purchased from the other source. Prices for Items ordered hereunder shall not increase prior to delivery without Buyer’s prior written consent, which Buyer may withhold in its sole discretion.
6. BUYER’S INTELLECTUAL PROPERTY (a) Drawings and Specifications. Any specifications, drawings, notes, instructions, engineering information, or technical data furnished by either Buyer or Seller to the other, or referred to in the Contract shall be incorporated herein by reference. Seller shall be fully and solely responsible for obtaining product data adequate to design, manufacture, fabricate, construct and deliver the Items in compliance with all requirements of the Contract. Buyer shall retain title to all such documents which it provides or causes to be given to Seller, and Seller shall not use any of such documents or the information contained therein for any purpose other than in performance of the Contract. Seller shall not disclose such documents or information to any party other than Buyer or a party duly authorized by Buyer. Upon Buyer’s request, Seller shall promptly return to Buyer all such documents and copies thereof. (b) Other Intellectual Property. Whenever requested by Buyer to do so, Seller will place on the Items, in the manner specified by Buyer, such trademarks or other identifying marks as Buyer may specify. Seller warrants and agrees that Buyer’s identifying marks shall be used only on products supplied to Buyer and in the manner and subject to the restrictions imposed by Buyer. All of Buyer’s Intellectual Property Rights are and shall remain Buyer’s sole property and Seller agrees not to take or permit any action contradicting Buyer’s rights thereto. “Intellectual Property Rights” include, without limitation, any copyright, patent, registered or unregistered design, logo, trademark, trade dress, trade name or other designation, translation of trade name into another language, specifications, drawings, notes, instructions, engineering information, or technical data and any similar rights or applications for rights in any of the foregoing in any part of the world owned or used by Buyer or any of its affiliates, and any goodwill relating thereto. Buyer’s rights shall be enforceable by injunctive relief and/or a decree of specific performance. Seller does not acquire any rights, title or interest in any of the trademarks or trade names of Buyer by virtue of this Contract, and Seller shall not use or in any way refer to Buyer’s trademarks or trade names without Buyer’s prior written permission. Nothing herein shall limit the statutory or common law of torts or trade secrets where it provides Buyer with broader rights.
7. DELIVERY Seller shall deliver the Items to Buyer on the date(s) indicated in the Purchase Order. If Seller fails to make delivery of any part of the Items on the date(s) indicated, Buyer may terminate the Contract and pursue other remedies. All shipments shall be delivered F.O.B. (as defined under the Iowa Uniform Commercial Code) to the destination designated by Buyer in the Purchase Order, and risk of loss shall remain with Seller until the Items in a completed state are received by Buyer, its agent or consignee regardless of whether or not Buyer has made full payment for the Items. A packing slip, or such other documents as Seller may require, must accompany each such shipment, and if a shipment is to a consignee or agent of Buyer, a copy of the packing slip shall be forwarded concurrently to Buyer. If no such packing slip is sent, the count or weight by Buyer or its agent or consignee is agreed to be final and binding. Seller, or the carrier it uses to transport the Items, whichever is applicable, shall (a) maintain a “satisfactory” safety rating from the U.S. Department of Transportation and shall provide Buyer with written proof of such rating on request if the carrier is a motor carrier, and (b) shall maintain comprehensive general liability Bodily Injury and Property Damage insurance in the amount required by Section 16, unless a larger amount is required by any federal, state, or local regulatory agency, in which event such larger amount shall be maintained.
8. WARRANTIES Seller expressly warrants to Buyer, Buyer’s customer and to the ultimate user that (a) the Items will (i) conform to the quality standards, drawings, specifications, samples or other descriptions furnished or adopted by Buyer, (ii) be merchantable, fit for Buyer’s particular purposes, of high quality and free from defects in material and workmanship, (iii) conform to all of Seller’s specifications, performance guarantees and representations, and (iv) comply with all applicable nationally recognized codes and established industry standards; (b) the use and/or sale, alone or in combination, of the Items will not infringe or violate any United States or foreign letters patent, or any right in or to any patented invention or idea, or a trademark or copyright; (c) the Items and their production, storage, pricing, delivery and sale here under are in compliance with applicable foreign, federal, state and local laws applicable thereto including, without limitation, all packaging and labeling laws and any applicable laws, regulations, rules and standards of the Federal Consumer Safety Act; and (d) Seller is conveying good title to the Items, free and clear of any liens or encumbrances. Seller acknowledges that it has knowledge of Buyer’s intended use and warrants that all Items that have been manufactured by Seller based on Buyer’s use and will be fit and sufficient for the particular purposes intended by Buyer. Seller shall pass on to Buyer the benefit of any manufacturer’s warranties. Any Items not in accordance with the foregoing warranties or any special warranty shall be deemed to be defective and may be rejected by Buyer. Buyer’s approval of Seller’s specifications shall not relieve Seller of any of its warranty obligations. Seller will maintain a quality assurance system which is adequate in Buyer’s judgment to detect and prevent shipment of nonconforming Items. In the event of any recall affecting the Items, Seller shall indemnify Buyer and Buyer’s Parties in accordance with Section 15. Buyer shall have the right to control the recall process and Seller shall fully cooperate with Buyer in connection with the recall. Seller’s warranties and guarantees shall survive inspection, delivery and acceptance of the Items and/or payment by Buyer.
9. BREACH OF WARRANTY (a) If Seller breaches any of its warranties, Seller shall be liable for and shall indemnify Buyer and its affiliated corporations, employees, customers, accessories and assigns from and against all damages incurred by them, including, but not limited to, actual damages such as the purchase price of the Items, delivery costs, replacements and cover costs, incidental and consequential damages. Seller acknowledges that, if Seller’s breach causes Buyer to deliver products to its customers either late or below Buyer’s standards, Buyer will incur actual, consequential and other damages for which Seller is liable. Without limiting the foregoing, Seller shall promptly and at its sole cost replace any Products failing to conform with the warranties set forth in this Contract. Replacement Items shall be subject to the same warranty as provided above. Buyer’s remedies specified herein are cumulative and not exclusive of any other remedies available to Buyer. (b) If Items are held to constitute an infringement of a third party right, Seller shall, at its expense, either procure for Buyer the right to use said Product or replace same with a substantially equal but not infringing Product, or modify it so that it becomes substantially equal but not infringing.
10. CHANGES Buyer shall have the right to make changes (including additions and/or omissions) from time to time in the Items, any specifications and/or drawings which are a part of the Contract, method of shipment or packing and/or the time and/or place of delivery. Buyer shall give Seller written notice of any such change which notice may include any increase or decrease in the cost of or the time required for performance of the Contract determined by Buyer to be appropriate. If Seller does not agree with such adjustments, or if the notice does not contain any such adjustments, Seller shall still be obligated to proceed immediately with all of the changes directed by Buyer without waiting to reach an agreement on any such adjustments. Any claims by Seller for adjustments after its receipt of Buyer’s change order must be asserted in writing to Buyer not more than ten (10) days after such receipt by Seller or such claim shall be null and void.
11. PAYMENTS AND INVOICES The specific terms of payment for all Items are stated in the Purchase Order. Unless otherwise specified there or in a separate written instrument signed by Buyer, no invoice shall be issued by Seller prior to the shipment or performance of the Items covered thereby, and no payment shall be made prior to receipt of such Items and of a proper invoice for such Items. Buyer may withhold any payment otherwise due under the Contract to such extent as may be necessary to protect Buyer from loss because of: (a) evidence of financial difficulty of Seller which might prevent complete performance of the Contract by Seller; or (b) a breach by Seller of any provision of the Contract.
12. INSPECTION AND DEFECTS Buyer may inspect any Items ordered hereunder during their manufacture, construction or preparation at reasonable times and shall have the right to inspect such Items at the time of their delivery and/or completion. Items furnished hereunder may at any time be rejected for defects revealed by inspection or analysis even though such Items may have previously been inspected and accepted. Such rejected Items may, at Buyer’s option, be returned to Seller for full refund to Buyer, including removal, shipping and transportation charges.
13. EQUAL EMPLOYMENT OPPORTUNITY AND OTHER NONDISCRIMINATION CLAUSES When applicable, the contractor and subcontractor shall abide by the requirements of 41 CFR 60-1.4(a) as amended by Executive Order 13665, 60-300.5(a), 60-741.5(a), Appendix A of Subpart A of 29 CFR 471. These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, national origin, sexual orientation and gender identity. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability.
14. LIENS To the maximum extent permitted by applicable law, Seller hereby waives its rights to any mechanics lien or other lien under any applicable statutes or otherwise for all Items furnished in connection with the Contract. Prior to Seller’s receipt of each payment under the Contract, Seller shall deliver to Buyer all affidavits, lien releases, materialmen’s certificates and other documents necessary fully to protect Buyer under the applicable lien laws. If at any time there shall be evidence of the existence of any such lien or claim for work done or materials, services or equipment furnished by Seller or any other party in connection with the Contract, Buyer may use money then due or to become due under the Contract to discharge such lien or satisfy such claim and may credit such amounts against the amounts due or to become due to Seller.
15. INDEMNITY Seller shall indemnify and hold buyer and its agents, consignees, employees and representatives harmless from and against all expenses, costs, charges, damages, claims, suits, losses, fines, penalties or liabilities (including attorneys’ fees) of every kind whatsoever by reason of, arising out of, or in any way connected with accidents, occurrences, injuries or losses to or of any person or property including, without limitation thereto, loss of use of property, which may occur before or after delivery of the completed items to buyer, upon or about or in any way due to or resulting from, in whole or in part, (a) the sale, design, preparation, manufacture, fabrication, construction, completion, transportation, delivery, failure to deliver, and/or installation of the items, and/or (b) any and all. Claims for infringement of any patent, copyright or trademark by reason of the design, manufacture, purchase, use or sale of the items (excluding buyer’s intellectual property rights used in connection with the products); however, seller shall not be liable for damages caused solely by the negligence of buyer, excluding situations where the buyer’s negligence consists of failure to discover a condition caused or permitted to exist by the seller or any of its subcontractors. If buyer is responsible for any installation or services or supervision related to installation under the contract, seller shall have no liability under this section 15 for things resulting entirely from buyer’s acts or omissions in the performance of such installation, however, seller shall remain liable for its own acts, the acts of its employees/agents, consignees and representatives, and the acts of its subcontractors related to installation under this contract. Seller, in any indemnification claim hereunder, hereby expressly and without reservation waives any defense or immunity it may have under any applicable worker’s compensation laws or any other statute or judicial decision, disallowing or limiting such indemnification where an employee of seller makes a claim against any indemnitee herein, and seller consents to a cause of action for indemnity.
16. INSURANCE Seller shall take out and maintain with a carrier or carriers having a Best rating of not less than B+ at least the following minimum insurance, or such other coverages and amounts as reasonably requested by Buyer in writing from time to time, at Seller’s expense for the duration of the Contract covering all of Seller’s obligations under the Contract: (a) Workers Compensation, Statutory; (b) Employer’s Liability – Bodily Injury by Accident – $1,000,000 each accident; Bodily Injury by Disease – $1,000,000 each employee; Bodily Injury by Disease – $1,000,000 policy limit; (c) Commercial General Liability (Bodily Injury, including premises, contractual, products liability or completed operations coverage) $1,000,000 in the aggregate; $1,000,000 each occurrence in the aggregate with a single excess umbrella coverage of not less than $5,000,000 for combined bodily injury and property damage; (d) Commercial General Liability (Property Damage, including premises, contractual, products liability or completed operations coverage with the explosion, collapse and underground damage exclusions deleted.) $1,000,000 each occurrence; $1,000,000 in the aggregate; (e) Business Automobile Liability – Bodily and Property Damage, $1,000,000 combined single injury limit and each occurrence; (f) Errors and Omissions Liability, Not less than $2,000,000 per year covering Seller’s obligations under the Contract with a per claim deductible satisfactory to Buyer. The completed operations coverage or the products liability coverage described above under the commercial general liability insurance shall be kept in effect for the longer of two years from the date of Buyer’s initial commercial use of the Items or the period stated in the first sentence of this Section 16. None of the above insurance coverage shall be cancelable except upon thirty (30) days prior written notice to Buyer and to all other insured parties, and Seller shall provide Buyer with a copy of any such cancellation notice immediately after Seller’s receipt of it. Seller shall include Buyer as an additional insured on all liability insurance. If Seller is subject to any no fault insurance requirements, it shall adhere to all applicable laws and regulations pertaining to such no fault insurance. On Buyer’s request, Seller shall provide certificates of insurance and renewals evidencing insurance. Seller’s compliance with these insurance requirements shall not relieve Seller from liability under the Indemnification provisions.
17. TERMINATION, SUSPENSION OR DELAY Buyer shall have the right at any time to terminate, suspend, or delay the Contract in whole or in part by prior written notice to Seller. Immediately after receipt of such notice, Seller shall stop all performance hereunder except as may otherwise be directed by Buyer. In the case of termination of the Contract, Seller shall then transfer to Buyer, in accordance with Buyer’s directions, and whether located on the job site, in a vendor’s or manufacturer’s facility or elsewhere, all materials and all information accumulated, specifically prepared or acquired by Seller for use in relation to the design, development, manufacture, assembly, shipment, installation, operation, maintenance or repair of the Items and all supplies, shop drawings, work in process, equipment, machinery or parts prepared, acquired or used by Seller in connection with such items and for which Seller is to be reimbursed hereunder, and all working drawings, sketches, specifications, and other information accumulated, prepared or acquired by Seller with respect to such Items. Seller shall, if directed by Buyer and to the extent stated in the notice of termination, suspension or delay, make all efforts necessary to preserve the work in progress and to protect the Items whether still at Seller’s manufacturing facilities or in transit to Buyer’s facilities. If Seller is not then in default in the performance of any of its obligations hereunder, and if Seller has taken reasonable steps to mitigate its damages resulting from such termination, Buyer shall pay to Seller, as Seller’s sole and exclusive remedy for termination under this Section 17, to the extent not already paid to Seller, an amount equal to: (a) reasonable and documented costs incurred by Seller in accordance with the Contract prior to Sellers’ receipt of notice of termination, plus (b) reasonable and documented costs and charges incurred by Seller in winding up its activities under the Contract prior to the effective termination date; provided, however, that the amounts listed in clauses (a) and (b) of this Section 17 plus prior payments to Seller shall in no event exceed the Price. If the suspension or delay is not followed by a termination of the Contract, Buyer shall have no obligation to make any payments to Seller after the effective date of the suspension or delay other than, to the extent not already paid to Seller, Seller’s reasonable and documented costs incurred in accordance with the Contract prior to such effective date which are not reduced or eliminated by appropriate mitigative action by Seller. Before Buyer resumes performance under the Contract following such suspension or delay, Seller and Buyer shall negotiate in good faith on the adjustments, if any, which may be required in payments to Seller or in the Contract Price to avoid inequities either to Seller or Buyer. IN NO EVENT SHALL SELLER BE ENTITLED TO ANY PROSPECTIVE PROFITS OR ANY DAMAGES DUE TO TERMINATION, SUSPENSION OR WITHDRAWALS OF SUSPENSION.
18. DEFAULT If Seller: (a) is insolvent, enters (voluntarily or involuntarily) a bankruptcy proceeding, or makes a general assignment for the benefit of its creditors; (b) fails to comply with any of its obligations under the Contract then Buyer may, in addition to its other rights and remedies herein, at its option either cure the default at Seller’s expense or terminate the Contract after first giving Seller three (3) days written notice to cure such default, if Seller has failed to cure such default within such three (3) day period. Immediately after such termination, Buyer may: (i) take possession of the Items wherever they may be located and in whatever state of completion they may be together with all drawings and other information necessary to enable Buyer to have the Items completed, installed, operated, maintained and/or repaired; (ii) pay to Seller any amount then due under the Contract after taking full credit for any offsets to which Buyer may be entitled; (iii) contract with or employ any other party or parties to finish the Items; and (iv) collect from Seller any additional expense, losses or damage which Buyer may suffer.
19. WORK ON PREMISES Before Seller provides any services or work on Buyer’s premises, Seller will examine the premises and any specifications or other documents furnished in connection with the Items and satisfy itself as to the condition of the premises and site. No allowance shall be made in respect of any error as to any of the foregoing on the part of Seller. Seller shall at all times keep the premises free from accumulations of waste material or rubbish. At the completion of installation of the Items, Seller shall leave the premises and the Items broom-clean. Seller assumes all risks and shall indemnify and hold Buyer and its employees harmless from and against all damages, claims, suits or liabilities arising out of, or in any way connected with damages to vehicles or other personal property of Seller, its employees and subcontractors caused by accidents or occurrences on Buyer’s premises, even if Seller has been negligent.
20. INDEPENDENT CONTRACTOR Seller is and shall remain an independent contractor and neither Seller nor any of its employees or agents shall be considered an employee of Buyer. Neither Seller nor any of its employees or agents are authorized to incur any obligations or make any promises or representations on Buyer’s behalf.
21. ASSIGNMENT Seller may not assign the Contract or any right thereunder without the prior written consent of Buyer. Buyer may assign, without Seller’s consent, this Contract and its interest herein to any affiliate or to any entity succeeding to Buyer’s business. Subject to the foregoing, these terms and conditions shall be binding on and inure to the benefit of the parties and their successors and assigns.
22. ENTIRE AGREEMENT The Contract constitutes the final written expression of the terms between Seller and Buyer on the subjects covered herein, and no terms, conditions, understanding or agreement purporting to modify or vary the terms of the Contract shall be binding unless made in writing and signed by Seller and Buyer. Any terms and conditions printed on any other purchase order, release order, acknowledgment, invoice or other form issued by either Seller or Buyer which conflicts in any way with the terms and conditions of this Contract are superseded by this Contract.
23. SEVERABILITY; WAIVER The invalidity or unenforceability of any term or condition of this Contract shall not affect the validity or enforceability of the remainder of this Contract. Buyer reserves the right to correct clerical or similar errors relating to any terms of this Contract. The failure of either party to insist, in any one or more instances, upon performance of any term, covenant or condition of this Contract shall not be construed as a waiver or relinquishment of any right granted here under or of the future performance of such term, covenant or condition.
24. FORCE MAJEURE Buyer shall not be responsible for default hereunder where such has been caused by an act of God, war, major disaster, terrorism, third–party criminal acts, insurrection, riot, flood, earthquake, fire, labor disturbance, operation of statutes, laws, rules or rulings of any court or government, or any other cause beyond Buyer’s control.
25. GOVERNING LAW This Contract shall be governed by and construed according to the internal laws of the State of Iowa, including, without limitation, the Uniform Commercial Code as adopted in Iowa. This Contract shall not be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods. Any cause of action, claim, suit or demand allegedly arising from or related to the terms of this Contract or the relationship of the parties shall be brought in a Court situated in the State of Iowa. Both parties hereby irrevocably admit themselves to and consent to the jurisdiction of said Court.
26. SURVIVAL The provisions of Sections 2, 3, 8, 9, and 15 and any other provision, the performance of effectiveness of which naturally survives, shall survive expiration or termination of this Contract for any reason.
27. ALLOCATION In the event of a partial failure of Seller’s sources of supply, Seller will meet all of Buyer’s requirements hereunder prior to any allocation among other customers.
28. Ownership of Property Rights All intellectual property rights and all other property and other rights in relation to Contract Information are owned by Buyer. To the extent that Contract Information is discovered, developed or created by Seller or other members of Sellers Group and copyright or other intellectual property or other rights arise in relation to that Contract Information, those works and rights are work made for hire under this Contract and are the exclusive property of Buyer. If buyer cannot be considered as author or owner of those works or rights for any reason, then those works or rights are automatically assigned to Buyer at their creation by this Contract, and moral rights in those works or rights, if any, are waived, without any further act being required. Seller shall promptly disclose and assign and does assign (and shall ensure that any other member of Sellers Group having rights to Contract Information assigns) all rights to any concepts, inventions, improvements, discoveries or other Contract Information to Buyer. Seller shall assist Buyer in obtaining or enforcing intellectual property protection for or perfecting any available rights to the Contract Information, including the signing of any affidavits, patent or other applications and assignment documents. The cost of obtaining or enforcing intellectual property or other rights in relation to Contract Information will be borne by Buyer. Buyer and its Affiliates shall have an irrevocable, royalty-free, perpetual, worldwide right and license, with the right to sublicense, to use Sellers Background Technology to the extent necessary to exploit the Contract Information or the Products delivered under this Contract.