PCS COMPANY PURCHASE TERMS AND CONDITIONS
1. Applicability. These terms and conditions of purchase (these "Terms") are the only terms which govern the purchase of the goods ("Goods") and/or services ("Services") by PCS Company ("Buyer") from the seller named in any purchase order ("Seller"). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods and Services, the terms and conditions of said contract shall prevail to the extent inconsistent with these Terms. Any related purchase order (the "Purchase Order") and these Terms (collectively, this "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Seller's terms and conditions of sale regardless whether or when Seller submitted such terms. This Agreement expressly limits Seller's acceptance to the terms of this Agreement. Fulfillment of any related Purchase Order constitutes acceptance of these Terms. These Terms shall survive any expiration or termination of such Purchase Order.
2. Order/Delivery of Goods and Performance of Services. Buyer may issue forecasts, which are for informative purposes only. Any product quantities cited in such forecasts are preliminary and non-binding. Buyer makes no representation or warranty as to the quantity of Goods or Services that it will purchase, if any. Notwithstanding any forecasts, Buyer is not obligated to purchase any minimum quantities from Seller under this Agreement. Seller shall deliver the Goods or Services in the quantities and on the date(s) specified in the Purchase Order (the "Delivery Date(s)"). If Seller fails to confirm a Purchase Order within one (1) business day, or otherwise commences performance on such Purchase Order, Seller will be deemed to have accepted the Purchase Order. If Seller fails to deliver the Goods or Services in full on the Delivery Date, Buyer may terminate this Agreement immediately by providing written notice to Seller, and Seller shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses directly attributable to Seller's failure to deliver the Goods or Services on the Delivery Date. Seller shall deliver all Goods or Services to the address specified in the Purchase Order (the "Delivery Point") during Buyer's normal business hours or as otherwise instructed by Buyer. Seller shall pack all Goods or Services for shipment according to Buyer's instructions, Buyer’s Supplier Guidelines (if provided to Seller), or, if there are no instructions, in a manner sufficient to ensure that the Goods or Services are delivered in undamaged condition. Seller shall provide the Services to Buyer as described and in accordance with any schedule set forth in the Agreement. Seller acknowledges that time is of the essence with respect to Seller's obligations hereunder, including timely delivery of the Goods and Services, all performance dates, timetables, project milestones, and other requirements in this Agreement. On Buyer's request Seller shall promptly provide all information necessary to export and import Goods under this Agreement. For each shipment of Goods, Seller shall provide Buyer, in writing, sufficient advance warning and notice (in addition to including appropriate labels on Goods, containers, and packing) of any hazardous or restricted material that is an ingredient in or a part of the shipment, together with such special handling instructions as may be necessary to advise logistics providers, handlers of the Goods, and personnel of how to exercise appropriate care and precaution and to comply with any applicable Laws and to prevent bodily injury or property damage in the handling, transportation, processing, use, or disposal of the Goods, Services, containers, and packaging. Buyer may return Goods purchased under this Agreement to Seller for any or no reason for a full refund of the Price; provided that: (a) Buyer returns the Goods unused, undamaged, in their original packaging; (b) Returns are made at Buyer's expense and risk of loss; (c) Buyer provides Seller with an itemized inventory of all Goods returned under this Section; and (d) the Goods are not obsolete or discontinued. Delivery shall be made FOB Shipping Point. Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point.
3. Quantity. If Seller delivers more or less than the quantity of Goods ordered, Buyer may reject all or any of the Goods. Any such rejected Goods shall be returned to Seller at Seller's sole risk and expense. If Buyer does not reject the Goods and instead accepts the delivery of Goods at the increased or reduced quantity, the Price for the Goods shall be adjusted on a pro-rata basis. Seller shall not make any partial shipments to Buyer unless expressly approved in writing by Buyer.
4. Inspection and Rejection of Nonconforming Goods. Buyer has the right to inspect the Goods on or after the Delivery Date. Buyer, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines the Goods are nonconforming or defective. If Buyer rejects any portion of the Goods, Buyer has the right, effective upon written notice to Seller, to: (a) rescind this Agreement in its entirety; (b) accept the Goods at a reasonably reduced price; or (c) reject the Goods and require replacement of the rejected Goods. If Buyer requires replacement of the Goods, Seller shall, at its expense, promptly replace the nonconforming or defective Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective goods and the delivery of replacement Goods. If Seller fails to timely deliver replacement Goods, Buyer may replace them with goods from a third party and charge Seller the cost thereof and terminate this Agreement. Any inspection or other action by Buyer under this Section shall not reduce or otherwise affect Seller's obligations under the Agreement, and Buyer shall have the right to conduct further inspections after Seller has carried out its remedial actions.
5. Price. The price of the Goods and Services is the price stated in the Purchase Order (the "Price"). If no price is included in the Purchase Order, the Price shall be the price provided to Buyer or set out in Seller's published price list in force as of the date of the Purchase Order. Unless otherwise specified in the Purchase Order, the Price includes all packaging, transportation costs, insurance, customs duties and fees, and applicable taxes, including, but not limited to, all sales, use or excise taxes. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Buyer. Seller represents and warrants that the Price is at least as low as the price charged by Seller to other buyers for similar volumes of the same Goods or Services or similar goods or services.
6. Payment Terms. Seller shall issue an invoice to Buyer on or any time after the completion of delivery and only in accordance with these Terms. Seller’s invoice must include Buyer’s purchase order number. Buyer shall not be obligated to pay any invoice which does not properly include Buyer’s invoice number. Buyer shall pay properly invoiced amounts due to Seller within forty-five (45) days after Buyer's receipt of such invoice, except for any amounts disputed by Buyer in good faith. Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off any amount owed to it by Seller against any amount payable by Buyer to Seller. The parties shall seek to resolve all disputes expeditiously and in good faith. Seller shall continue performing its obligations under this Agreement notwithstanding any such dispute.
7. Seller's Obligations. Seller shall: (a) before shipping any Goods or the date on which the Services are to start, obtain, and at all times during the term of this Agreement, maintain, all necessary licenses and consents and comply with all relevant laws; (b) comply with all rules, regulations and policies of Buyer, including security procedures concerning systems and data and remote access thereto, building security procedures, including the restriction of access by Buyer to certain areas of its premises or systems for security reasons, Buyer’s Supplier Guidelines, and general health and safety practices and procedures; (c) maintain complete and accurate records relating to the provision of the Goods or Services under this Agreement, including records of the time spent and materials used by Seller in providing the Goods or Services in such form as Buyer shall approve; (d) during the term of this Agreement and for a period of two years thereafter, upon Buyer's written request, Seller shall allow Buyer to inspect and make copies of such records and interview Seller personnel in connection with the provision of the Goods or Services; and (e) obtain Buyer's written consent, which may be given or withheld in Buyer's sole discretion, prior to entering into agreements with or otherwise engaging any person or entity, including all subcontractors and affiliates of Seller, other than Seller's employees, to provide any Goods or Services to Buyer (each such approved subcontractor or other third party, a "Permitted Subcontractor"). Buyer's approval shall not relieve Seller of its obligations under the Agreement, and Seller shall remain fully responsible for the performance of each such Permitted Subcontractor and its employees and for their compliance with all of the terms and conditions of this Agreement as if they were Seller's own employees. Nothing contained in this Agreement shall create any contractual relationship between Buyer and any Seller subcontractor or supplier. Seller shall notify Buyer of any plans to discontinue any Product at least twelve (12) months prior to such discontinuation. Buyer shall have the option to submit Purchase Orders for the Product during the period prior to its discontinuation. If necessary, the Parties will negotiate continued supply of the Product as necessary. Seller shall notify Buyer of any Change to the Products at least ninety (90) days prior to implementation of such Change. “Change” is defined as any variation to the materials, country of origin, Specifications, packaging, measurements, or other alteration or modification to the Product. Buyer shall have the option to submit Purchase Orders for additional Product prior to implementation of the Change.
8. Change Orders. Buyer may at any time, by written instructions and/or drawings issued to Seller (each a "Change Order"), order changes to the Goods or Services. Seller shall within five (5) days of receipt of a Change Order submit to Buyer a firm cost proposal for the Change Order. If Buyer accepts such cost proposal, Seller shall proceed with the changed services subject to the cost proposal and the terms and conditions of this Agreement. Seller acknowledges that a Change Order may or may not entitle Seller to an adjustment in the Seller's compensation or the performance deadlines under this Agreement.
9. Warranties. Seller warrants to Buyer that for a period of one (1) year from the Delivery Date, all Goods will be free from any defects in workmanship, material and design; conform to applicable specifications, drawings, designs, samples and other requirements; be fit for their intended purpose and operate as intended; be merchantable; be free and clear of all liens, security interests or other encumbrances; and not infringe or misappropriate any third party's patent or other intellectual property rights. These warranties survive any delivery, inspection, acceptance or payment of or for the Goods by Buyer. Seller also warrants that (a) it is duly organized, validly existing and in good standing in the jurisdiction of its formation; (b) it is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required for purposes of this Agreement; (c) it has the full right, power and authority to enter into this Agreement, to grant the rights and licenses granted under this Agreement and to perform its obligations under this Agreement; and (d) it shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement. The warranties set forth in this Agreement are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Buyer's discovery of the noncompliance of the Goods or Services with the foregoing warranties. If Buyer gives Seller notice of noncompliance pursuant to this Section, Seller shall, at its own cost and expense, promptly (i) replace or repair the defective or nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods to Seller and the delivery of repaired or replacement Goods to Buyer, and, if applicable, (ii) repair or re-perform the applicable Services. If Buyer, any of Buyer's customers, Seller, or any governmental authority determines that any Goods sold to Buyer are defective and a
recall campaign is necessary, either Party may implement such recall campaign. Buyer may return any defective Goods to Seller or destroy such Goods, as determined by Buyer, at Seller's sole cost and risk. Without prejudice to any other rights hereunder, if a recall campaign is implemented, at Buyer's option and Seller's sole cost, Seller shall promptly either repair or replace, or credit or issue refunds for, all such returned or destroyed Goods. The foregoing will apply even if the product warranties in this Agreement or any other product warranty applicable to the Goods have expired. Seller is liable for all of Buyer's costs associated with any recall campaign if such recall campaign is based on a reasonable determination that either: (a) the Goods fail to conform to either the warranties under this Agreement or applicable Law; or (b) the basis for the recall arose from Seller's negligence or willful misconduct.
10. General Indemnification. Seller shall defend, indemnify, and hold harmless Buyer, Buyer's parent company, subsidiaries, affiliates, successors, and assigns and their respective directors, officers, shareholders, and employees (collectively, "Indemnitees") against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost, expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, "Losses") arising out of or occurring in connection with the Goods and Services purchased from Seller or Seller's negligence, willful misconduct, or breach of the Terms. Seller shall not enter into any settlement without Buyer's prior written consent.
11. Intellectual Property; Indemnification. Seller hereby grants authorization to Buyer to utilize Seller’s trademarks (and all third-party trademarks on Goods supplied by Seller) in connection with the labeling, advertising, promotion, and resale of the Goods and for Buyer to refer to itself as an authorized reseller or distributor of the Goods. Seller may use Buyer’s trademarks only upon written permission. Seller shall, at its expense, defend, indemnify, and hold harmless Buyer and any Indemnitee against any and all Losses arising out of or in connection with any claim that Buyer's or Indemnitee's purchase, use, resale, advertisement, or other action in accordance with these Terms infringes or misappropriates the patent, copyright, trademark, trade secret, or other intellectual property right of any third party. In no event shall Seller enter into any settlement without Buyer's or Indemnitee's prior written consent.
12. Limitation of Liability. Nothing in this Agreement shall exclude or limit Seller's liability under any provision in this Agreement. Buyer shall not be liable for any consequential, indirect, incidental, special, exemplary, punitive, or enhanced damages, arising out of or relating to this Agreement, whether or not such damages were foreseeable, or Buyer was advised of the possibility of such damages, and regardless of the legal or equitable theory (contract, tort, or otherwise) upon which the claim is based.
13. Insurance. During the term of this Agreement and for three (3) years thereafter, Seller shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than $2,000,000 with financially sound and reputable insurers. Upon Buyer's request, Seller shall provide Buyer with a certificate of insurance from Seller's insurer evidencing the insurance coverage. The certificate of insurance shall name Buyer as an additional insured. Except where prohibited by law, Seller shall require its insurer to waive all rights of subrogation against Seller's insurers and Seller.
14. Compliance with Law. Seller shall comply with all applicable laws, regulations, and ordinances. Seller shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Seller shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer. Seller assumes all responsibility for shipments of Goods requiring any government import clearance. Buyer may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on the Goods. Seller agrees that all Goods purchased by Buyer will comply with California Proposition 65 labelling requirements. Seller and Buyer agree to each conduct their businesses in material compliance with the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, and other similar anti-corruption legislation in other jurisdictions and have instituted and maintained policies and procedures designed to promote and achieve compliance with such laws.
15. Termination. In addition to any remedies that may be provided under these Terms, Buyer may terminate this Agreement with immediate effect upon written notice to the Seller, either before or after the acceptance of the Goods or the seller's delivery of the Services. If the Seller becomes insolvent, files a petition for bankruptcy or commences (or has commenced against it) proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then the Buyer may terminate this Agreement upon written notice to Seller. If Buyer terminates the Agreement for any reason, Seller's sole and exclusive remedy is payment for the Goods received and accepted and Services accepted by Buyer prior to the termination. If either Party terminates the Agreement prior to completion and full shipment of the Goods, Seller shall refund pro rata any amount pre-paid by Buyer.
16. Waiver. No waiver by Buyer of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Buyer. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
17. Confidential Information. All non-public, confidential or proprietary information of Buyer, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Buyer to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" in connection with this Agreement is confidential, is disclosed solely for the purpose of performing this Agreement, and may not be disclosed or copied unless authorized in advance by Buyer in writing. Upon Buyer's request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Seller at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
18. Force Majeure. Neither party shall be liable to the other for any delay or failure in performing its obligations under this Agreement to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party's fault or negligence, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable ("Force Majeure Event"). Force Majeure Events include, but are not limited to, acts of God or the public enemy, government restrictions, floods, fire, earthquakes, explosion, epidemic, war, invasion, hostilities, terrorist acts, riots, strike, embargoes or industrial disturbances. Seller's economic hardship or changes in market conditions are not considered Force Majeure Events. Seller shall use all diligent efforts to end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized, and resume performance under this Agreement. If a Force Majeure Event prevents Seller from carrying out its obligations under this Agreement for a continuous period of more than five (5) business days, Buyer may terminate this Agreement immediately by giving written notice to Seller.
19. Assignment. Seller shall not assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement without the prior written consent of Buyer. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Seller of any of its obligations hereunder. Buyer may at any time assign or transfer any or all of its rights or obligations under this Agreement without Seller's prior written consent to any affiliate or to any person acquiring all or substantially all of Buyer's assets.
20. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
21. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever.
22. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Michigan without giving effect to any choice or conflict of law provision or rule.
23. Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Michigan and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
24. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
25. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
26. Survival. Provisions of these Terms which by their nature should survive the term of this Agreement will survive the termination or expiration of this Agreement.
27. Amendment and Modification. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.