General Terms and Conditions of Purchase
1: ACCEPTANCE; PURCHASE ORDER CONSTITUTES ENTIRE AGREEMENT
These General Terms and Conditions (“Terms and Conditions”) are incorporated into any purchase order in which they are referenced (each an “Order”) that is issued by Cambrian Innovation, LLC (“Buyer”), to the entity to which the Order is addressed (“Seller”) and shall govern such Order, subject to any terms and conditions set forth therein. All Orders constitute Buyer's offer and may be accepted by Seller only in accordance with the terms hereof. Any acceptance herein of an offer of Seller, or any confirmation herein of a prior agreement between Buyer and Seller, is expressly made conditional on Seller's assent to the additional or different terms contained herein. This Order may be accepted by Seller by any expression of acceptance, orcommencement of work, shipment of goods, or furnishing of services hereunder, whichever comes first. Buyer objects in advance to the inclusion of additionalor different terms proposed by Seller unless such terms are accepted in writingby an authorized officer of Buyer and acceptance of the goods shall not be deemed an acceptance of such terms. No change in, modification of, or revision to any Order shall be valid and no conditions imposed by Seller in acknowledging the Order shall be binding on Buyer unless accepted in writing and signed by an authorized officer of Buyer.
2: CHANGES
Buyer may at any time, by written notice to Seller, make changes in the Order, including without limitation, changes in the specification of the goods, quantities, method of shipping or packing, place of inspection, acceptance point of delivery schedule, or other terms of the Order. If any such change increases or decreases the cost of goods or the time required to perform such order, Seller shall notify Buyer within five (5) days after receipt by Seller of the request for change and, if such change is acceptable to Buyer, then Buyer and Seller shall execute a change order approving the same. No such change shall be effective without an executed change order.
3: PRICE
Unit prices are not subject to escalation. If this Order is not priced it shall not be filled at prices higher than those last quoted and charged Buyer for the same articles. All applicable taxes, shipping, handling packing, licenses, and royalty fees shall be included and itemized separately.
4: PACKAGING AND SHIPPING
Deliveries shall be made as specified in this Order without charge for packaging or storage unless otherwise agreed to in writing by Buyer. Deliverables shall be suitably packed to secure the lowest transportation costs and in accordance with good commercial practice, the requirements of the carriers of the releases or orders subject to this Order. Seller shall use the carrier(s) selected by Buyer, if Buyer so requests. Buyer's order numbers must be plainly marked on all packages, bills of lading and shipping orders. Buyer's count or weight shall be conclusive. Seller shall not ship in advance of schedule or make partial shipment unless otherwise agreed in writing by Buyer.
5: TIME OF THE ESSENCE:
Time of shipment and of other aspects of performance hereunder is of the essence of this agreement.
6: DELIVERY/TITLE
Unless otherwise agreed, delivery shall be FOB point of destination and title shall pass to Buyer upon acceptance at the final delivery point. Risk of damages or loss following shipment and prior to acceptance by Buyer shall be the responsibility of Seller.
7: RIGHT OF INSPECTION AND REJECTION
(a) Buyer, at Buyer’s option, may refuse or return at Seller’s expense all or any part of (i) shipments which do not conform to the shipping or delivery dates specified by Buyer (whether early or late); (ii) shipments in excess of the quantities ordered or in lesser quantifies than ordered; (iii) shipments which contain defective goods or which fail to conform to the Order, or (iv) goods which are not as represented or warranted. Any storage or warehouse charges or other costs incurred by Buyer due to Seller’s failure to comply with the terms specified in this Order will be at Seller’s expense. (b) At Buyer’s option, Buyer may (i) approve any plans and specifications for the goods prepared by Seller prior to Seller commencing manufacture, assembly and/or production of the goods and (ii) inspect the goods during manufacture, assembly and/or production. All goods are subject to final inspection and approval by Buyer as to quality of material and workmanship; conformance to specifications, drawings, notes, instructions, engineering notes, technical data and/or samples supplied by Buyer (“Data”); and general acceptability of goods. Final inspection shall be at the specified delivery site unless otherwise agreed to in writing. (c) Without limiting any other rights it may have Buyer, at Buyer’s option, may (i) hold, at Seller’s expense subject to Seller’s disposal all rejected goods, (ii) return all rejected goods to Seller at Seller’s expense, including transportation and handling costs, (iii) require Seller to repair or replace at Seller’s expense any rejected goods, (iv) require Seller to refund the price of any rejected goods, or (v) repair defects and deduct the cost of replacement or rejection that would otherwise result in cancellation of the order. Acceptance of any portion of the goods ordered shall not obligate Buyer to accept future shipments nor be deemed a waiver of Buyer’s rights hereunder or under law. Neither acceptance of any shipment nor payment of any contract price by Buyer shall constitute a waiver of damages or other remedies for any defects in any goods ordered hereby, failure to conform to Data, failure to meet any scheduled date, or other breach of the Order.
8: ASSIGNMENT
Neither this Order nor any interest therein shall be transferred or assigned by Seller without the prior written consent of Buyer. Buyer may transfer or assign the benefits of this agreement, in whole or in part, including without limitation the Seller’s warranty, without the approval of Seller.
9: THIRD-PARTY FABRICATION
Third-party fabrication is strictly prohibited without prior written approval from Buyer.
10: WARRANTY
Seller warrants that all goods or services furnished pursuant to this Order will (a) be new and of first quality, (b) be free from defects in materials and workmanship, (c) conform to the requirements of this Order, including any specifications, (d) be free from design and specification defects whether or not manufactured to Seller’s specifications, (e) be fit for the purpose for which intended, (f) be of merchantable quality and fit and safe for consumer use, and (g) be free and clear of all liens and encumbrances at the time of shipment. Buyer's approval of Seller's design or material shall not be construed to relieve Seller of the warranties set forth herein. Without limitation of any rights which Buyer may have at law by reason of any breach of warranty, goods which are not as warranted may at any time within twelve (12) months after delivery be returned at Seller's expense. Buyer at its option may require Seller either to replace such goods at no increase in price (Seller must pay all repacking, transportation and handling charges both ways) or to refund the purchase price and any charges in connection therewith.
11: INVOICES
Seller shall invoice Buyer for the goods at the time of final shipment unless otherwise provided in the Order. Invoices shall be rendered in duplicate and shall show the Order number for each separate Order and the code number for each item purchased. Buyer may return for revision any invoice that is not in proper form and the discount period and payment term will be extended until the revised invoice is received. All invoices shall be mailed to Buyer at its office as indicated on the face of this Order and will state Buyer's Order number clearly on the invoice. Invoice and duplicates shall be rendered for each order or for each shipment if more than one is made on an order. Unless different payment terms are expressly stated in this Order, payment terms shall be thirty (30) days from Buyer's receipt of Seller's correctly presented invoice. Seller shall use the lowest published freight rates and any excess transportation charges incurred, including any that deviate from the published tariff rates, are to be borne by the Seller.
12: TAXES
Except for state sales or use taxes that apply to this purchase, the prices set forth on the Order are inclusive of any and all taxes, fees, excises, and charges which are now or hereafter imposed with respect to the goods or services being purchased and Buyer shall not be required or obligated to reimburse Seller for any taxes or similar expenses which may arise or be incurred in connection with delivery of the goods or service. The invoice shall separately list taxable and nontaxable charges where applicable.
13: INTELLECTUAL PROPERTY
Seller agrees to indemnify, save harmless and defend Buyer from and against any and all suits, claims damages, costs, and attorney's fees arising out of or in connection with any infringement or claimed infringement of any United States patent, trademark or copyright in the manufacture, use or sale of the equipment or materials furnished under this Order. In case said equipment or material is in such suit, or in final adjudication elsewhere, held to constitute infringement, and the use thereof is enjoined, Seller shall, at its own expense, either procure for Buyer the right to continue using said equipment or material, or at the option of Buyer either replace same with equally efficient non-infringing equipment or material, or modify it without impairing its efficiency so it becomes non-infringing, or remove said equipment or material and refund the purchase price and the transportation and installation costs thereof.
14: INDEMNITY/INSURANCE
(a) SELLER AGREES TO INDEMNIFY AND DEFEND BUYER, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS FOR AND AGAINST ANY AND ALL CLAIMS, ACTIONS, OBLIGATIONS, LIABILITIES, FINES, PENALTIES, DAMAGES, LOSSES, COSTS, EXPENSES AND ATTORNEY’S FEES ARISING FROM OR CONNECTED WITH THE GOODS PURCHASED AND SERVICES RENDERED HEREUNDER INCLUDING, WITHOUT LIMITATION, ANY OF THE FOLLOWING: (i) BREACH OF EXPRESS OR IMPLIED WARRANTY, STRICT LIABILITY, OR OTHER LIABILITY ARISING FROM ANY DEFECT IN THE GOODS PURCHASED OR THE METHODS UTILIZED IN PERFORMING THE ORDER, (ii) THE ACTS OR OMISSIONS OF SELLER OR ANY PARTY UNDER SELLER’S CONTROL, (iii) ANY CLAIM FOR ROYALTIES, UNFAIR COMPETITION, OR THE LIKE ARISING FROM ANY LICENSE OR LIKE AGREEMENT OR ARRANGEMENT BETWEEN SELLER AND THIRD PARTIES REGARDING SUCH GOODS, OR (iv) THE DELIVERY AND/OR INSTALLATION OF ANY GOODS BY SELLER OR ANY PARTY UNDER SELLER’S CONTROL ON PROPERTY OWNED, LEASED, OCCUPIED, OR CONTROLLED BY BUYER. (b) Seller shall maintain and provide Buyer with proof that it maintains primary and non-contributing products liability insurance with minimum limits of $1,000,000/2,000,000.00 for bodily injury and for property damage and blanket broad form vendor’s coverage (or such other limits as may be specified by Buyer), designating prior written notice to Buyer in the event of cancellation or material reduction of coverage. Seller shall also maintain worker’s compensation insurance in the form and amount required by applicable law covering any employees or agents of Seller performing services hereunder or employed by Seller.
15: HAZARDOUS MATERIALS
By acceptance of this Order, Seller certifies that any chemical substance(s) furnished pursuant to this Order have been properly labeled, and that proper information on the substance(s), e.g., material safety data sheets, have been provided to Buyer, pursuant to all federal, state or local laws and regulations.
16: TERMINATION
Buyer, by written notice, may terminate this order, in whole or in part. In the event this order is terminated as a result of Seller's default, the Seller shall be liable for all damages allowed in law or equity, including the excess cost of re-purchasing similar items. If this order is terminated for the convenience of Buyer, Seller will be compensated to the extent that items have been accepted by Buyer prior to the effective date of termination. Other than to this extent, Buyer shall not be liable to Seller for any damages on account of its failure to accept all of the items ordered.
17: LIMITATION OF LIABILITY
BUYER SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, WHETHER IN AN ACTION IN CONTRACT OR TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) RESULTING FROM ITS PERFORMANCE OR ANY FAILURE TO PERFORM HEREUNDER INCLUDING, BUT NOT LIMITED TO, LOSS OF ANTICIPATED PROFITS OR BENEFITS, EVEN IF BUYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Any action resulting from any breach on the part of Buyer must commence within one year of the date the cause of action has accrued. Buyer’s aggregate liability for any claim of any kind for loss or damage arising out of, in connection with or resulting from the Order shall in no event exceed the price of the particular products giving rise to the claim.
18: COMPLIANCE WITH LAWS
Seller represents and warrants that it is in compliance with and all goods and/or services supplied hereunder have been produced or provided in compliance with the applicable provisions of all federal, state, or local laws or ordinances and all related lawful orders, rules and regulations. Seller will also comply with any provisions, representations or agreements, or contractual clauses required to be included or incorporated by reference or operation of law in any Order. Seller shall indemnify Buyer from any damages, liabilities, claims, losses, penalties and expenses (including attorneys' fees) paid or incurred by Buyer as a result of any breach by Seller of these warranties. Seller shall be required to obtain and pay for any license, permit, inspection or listing by any public body or certification organization required in connection with the manufacture, performance, completion or delivery of any good and/or service.
19: BUYER'S PROPERTY
Tangible or intangible property of any nature furnished to Seller by Buyer or specifically paid for in whole or in part by Buyer, and any replacements or attachments, are the property of Buyer and, unless otherwise agreed in writing by Buyer, will be used only by Seller solely to render services or provide goods to Buyer. Seller will not substitute any property or take any action inconsistent with Buyer's ownership of such property. While in Seller's custody or control such property will be held at Seller's risk, will be kept insured by Seller at its expense for its replacement cost with loss payable to Buyer and will be subject to removal at Buyer's written request, in which event Seller will prepare such property for shipment and redelivery to Buyer in the same condition as originally received by Seller, reasonable wear and tear excepted, all at Seller's expense.
20: CONFIDENTIAL OR PROPRIETARY INFORMATION
Notwithstanding any document marking to the contrary, any knowledge or information which the Seller will have disclosed or may later disclose to Buyer, and which in any way relates to the goods or services covered by this Order will not, unless otherwise specifically agreed to in writing by Buyer, be deemed to be confidential or proprietary information, and will be acquired by Buyer, free from any restrictions. Seller will keep confidential any technical, process, economic, or other information derived from drawings, specifications and other data furnished by Buyer in connection with this Order (in whatever form or format) and will not divulge, export, or use, directly or indirectly, such information for the benefit of any other party without obtaining Buyer's prior written consent. Seller will not use such information or make copies or permit copies to be made of such drawings, specifications, or other data without the prior written consent of Buyer. If any reproduction is made with prior consent, this notice will be provided. Upon completion or termination of this Order, Seller will promptly return to Buyer all materials incorporating any such information and any copies, except for one record copy. Seller agrees that no acknowledgment or other information concerning this Order and the goods or services provided will be made public by Seller without the prior written agreement of Buyer.
21: FORCE MAJEURE
Neither party shall be liable for any delay or failure to perform due to a Force Majeure Event. “Force Majeure Event” shall mean any cause or condition beyond its reasonable control, including, without limitation, Acts of God, war, riot, fire, explosion, accident, flood or sabotage; compliance with governmental requests, laws, regulations, orders, action or national defense requirements; embargoes or acts of civil or military authorities; or in the event of labor trouble (excluding strikes or labor disputes involving Seller’s own employees or facilities), strike, lockout or injunction,. Seller shall give prompt written notice to Buyer of any Force Majeure Event, and any affected Orders shall be suspended for the duration of the delay. Seller shall take all reasonable steps to avoid or remove the cause of such delay and mitigate the harm of such delay to Buyer and will resume performance (if suspended) as soon as the cause of delay is removed. Either party may by prior written notice terminate an Order if delivery is delayed more than 30 days due to a Force Majeure Event.
22: GOVERNING LAW
This purchase order shall be governed by the laws of the State of Texas, U.S.A., without giving effect to conflicts of law principles. Seller and Buyer consent to the exclusive jurisdiction of, and venue in, the state and federal courts within Houston, Texas, U.S.A.
23: ENTIRE AGREEMENT
The terms, together with, any exhibits or attachments specifically referenced herein and Orders issued pursuant to these terms, sets forth the entire agreement and understanding among the parties as to the subject matter hereof, and merges and supersedes all prior discussions, agreements, and understandings of every and any nature among them. This Agreement may not be amended, supplemented, changed, or modified, except by agreement in writing signed by the parties. The terms and conditions of any quotation, order acceptance or other document issued by Seller shall have no force or effect. In the event of any conflict or inconsistency between the terms of any Order and these terms, these terms and conditions shall prevail. If any provision of this Order is held to be illegal, invalid or unenforceable by a court of competent jurisdiction, all other provisions shall remain in full force and effect.
24: REMEDIES
Each of the rights and remedies reserved to Buyer in this Order shall be cumulative and additional to any other remedies provided in law or equity. No delay or failure by Buyer in the exercise of any right or remedy shall affect any such right or remedy and no action taken or omitted by Buyer shall be deemed to be a waiver of any such right or remedy.
25: RELATIONSHIP OF PARTIES
Seller will, at all times, be an independent contractor. Neither party will have any right, power or authority to enter into any agreement for or on behalf of, or to assume or incur any obligation or liabilities, express or implied, on behalf of or in the name of, the other party. This Order will not be interpreted or construed to create an association, joint venture or partnership between the parties or to impose any partnership obligation or liability upon either party. Each party’s employees, methods, facilities and equipment will at all times be under its exclusive direction and consent.
26: WAIVER
Any failure or delay by either party in exercising any right or remedy will not constitute a waiver.
27: NOTICES
All notices, consents, waivers and other communications required or permitted to be given pursuant to this Order, shall be in writing and shall be deemed to have been delivered either (a) on the delivery date, if personally delivered, or if delivered by confirmed facsimile or confirmed e-mail receipt, (b) one (1) business day after delivery to any national overnight courier directing delivery on the next business day, receipt requested, or (c) three (3) business days after deposit in the United States mail, registered or certified mail, return receipt requested, with adequate postage affixed thereto. All notices shall be sent to the addresses as set forth in this Order, or at such other address as either party may designate in writing to the other party.
CURRENT VERSION: 260727v.3