I. General Terms and Conditions
A. Agreement or Order. All terms and conditions which form this “Agreement” or “order,” shall apply to all sales of goods or services by Seller to Midwest Printed Circuit Services, Inc. (“Buyer”) and to any quotation by the Seller for sales. Buyer agrees to buy and Seller agrees to sell those goods or services set forth on the face of this Agreement subject to the terms and conditions designate and on the face of this Agreement, as well as to, any terms or conditions which are otherwise expressly incorporated herein by reference including specifications, drawings, notes, instructions, samples, engineering notices or technical data referred to in this agreement.
B. Acceptance. Seller is deemed to have accepted this offer when Seller signs or returns the written acknowledgment copy of this Agreement to Buyer which must bear the price thereon, definite delivery date and proper signature. A written acknowledgment copy may be communicated by electronic means for purposes of offer acceptance. Signing of an acknowledgment, or holding this order five (5) days or more shall also constitutes acceptance of the same. Moreover, seller’s acceptance is solely limited to the acceptance of Buyer’s terms expressly set forth in this Agreement and is not subject to cancellation, price change, or reduction in amount of delivery, except with Buyer’s written consent and upon the terms contained herein.
II. Prices and Setoff
A. Contract Price. Buyer is responsible for the contract price which includes all charges for taxes of any kind, transportation, cartage, delivery, boxing, packaging, crating and returnable containers, unless otherwise provided for in this Agreement. Any expenses incurred by Buyer due to deviation from above instructions are to be charged to Seller.
B. Taxes. The price stated on the face hereof includes all applicable local, state and federal excise, sales and use taxes. In case of new taxes or increased tax rates, or the repeal of taxes, or the reduction of rates of taxes, the contract price shall be adjusted accordingly.
C. Contract Price Increases. Seller expressly agrees that prices specified in this order are not subject to any increase whatsoever for adjustments for taxes as herein provided and that increased costs due to increased wages, shorter hours of labor, and increased prices of merchandise and materials will be borne solely by Seller.
D. Prices in Excess of Regulation. Seller warrants that the prices charged herein are not in excess of the prices provided by any price regulation as may be in effect and applicable hereto, if any. In the event it is subsequently determined that the prices charged herein are in excess of the prices provided in such regulation, Seller agrees to refund such excess.
E. Additional Charges Required for Fabrication of Goods. No charge shall be made to Buyer for tools, dies, patterns, drawings, etc. required for the fabrication of parts unless so stated on this order. In the instance, Buyer and Seller agree to a charge for tools, dies, patterns, drawings, etc. under this Agreement and Seller provides a price quote, the price quote shall be the final and complete cost and no additional cost will be allowed, unless a regular purchase order of Buyer is issued stating the nature of the additional charge.
III. Standards, Legal Compliance and Quality Specifications
A. General Compliance Issues. Seller agrees to satisfy any and all specifications attached to or set forth in this Agreement, including, buy not limited to any engineering drawings, specifications, samples, or sketches provided to Seller. In addition, Seller expressly warrants that the goods and/or services provided satisfy or exceed: (1) all applicable legal requirements established by federal or state law and/or (2) applicable engineering or material standards, including, but not limited to, any ASTM, ANSI, NEC or other recognized standards with respect to quality and fitness and/or (3) any drawings, specifications, samples and data which are part of this Order or which were provided to Seller by Buyer or Buyer’s customer. Failure to comply with provisions herein will constitute a material breach of this Order and grounds for cancellation by Buyer.
B. Changes in Specifications by Buyer. If the goods hereunder are to be manufactured in accordance with specification, drawings or designs, Buyer may, at any time, by written change order, make changes in the specification, drawings, samples and designs and Seller shall comply therewith without delay. If such changes cause an increase or decrease in the amount due under this order or in the time required for its performance, an equitable adjustment shall be made by mutual agreement between the parties thereto.
C. Changes in Specifications by Seller. Seller will not make any change to the design, materials, processes and/or production facility used in providing goods to Buyer without complying with this paragraph. If the proposed change is to a Buyer proprietary product, Seller must first obtain Buyer’s written permission to make the change. If the proposed change is not to a Buyer proprietary product, change without complying with this paragraph, any goods received by Buyer may, at its sole discretion, be treated as non-conforming goods in accordance with paragraph IV D below in addition to any other remedies that may be available.
IV. Inspection and Acceptance of Goods
A. Inspection of Goods. Buyer may, but is not required to, inspect any and all goods at Seller’s facility during and/or after manufacture and/or upon delivery to Buyer. All materials will be subject to Buyer’s inspection and approval and the final inspection and count will be made after receipt of same at Buyer’s designated destination. If rejected, the goods will be held for disposition at Seller’s risk and expense. Any payment on account thereof will be promptly refunded by Seller.
B. Rejection of Defective or Reworked Goods. Seller warrants all materials or services delivered hereunder to be free from defect of materials or workmanship and to conform to the specifications, drawings or sample specified or furnished. This warranty shall survive any inspection, delivery acceptance or payment by Buyer of the materials or services. Buyer may reject any goods that do not meet the specifications, warranties or other requirements of this Agreement, or are otherwise defective in whole or part, at any time after delivery notwithstanding prior inspections. Any goods rejected by Buyer will be at Seller’s risk and expense and Seller will not thereafter tender such goods for acceptance unless the former rejection or requirement of correction is disclosed and fully repaired and remedied. If rejected, the goods will be held for disposition at Seller’s risk and expense. Any payment on account thereof will be promptly refunded by Seller. Buyer, at its discretion, reserves the right to reject reworked goods or products that are re-delivered for its acceptance. Seller will reimburse Buyer for any packaging, handling and transportation costs incurred with respect to rejected goods.
C. Revocation of Acceptance Due to Later Discovered Defect. Buyer may revoke its acceptance of goods at any time, whether or not a substantial modification in the goods has been made, if a defect in the goods which could not have been discovered during Buyer’s normal inspection procedure (or which is not normally discoverable until the goods are used or assembled) impairs the value of the goods to Buyer. Neither Buyer’s exercise of, nor its failure to exercise, any rights provided hereunder, will relieve the Seller from responsibility for producing conforming goods. Any and all defective goods may be returned by Buyer at Seller’s expense.
D. Non-conforming Goods. Buyer reserves the right to reject or return at any time, at Seller’s expense, all or any part of shipments made to it without or contrary to confirmation, or shipped different than represented, or shipped different from the Agreement or samples on which this order is placed; and the acceptance of any prior shipment so made shall not be considered a waiver of Buyer’s right to return or reject at any time all or any part of any subsequent shipment so made. Payment for material on this order shall not constitute an acceptance thereof, but all material shall be received subject to Buyer’s inspection and rejection, defective material or material not in accordance with Buyer’s specifications will be held for Seller’s instruction and at his risk. No goods returned as defective shall be replaced without an order.
E. Failure Epidemic. In the event of a “failure epidemic” (as defined below) with respect to any part of the merchandise or goods which may occur at any time during the period commencing with the date of first deliveries hereunder and ending with the last deliveries hereunder (“the failure epidemic period”), the following provisions shall pertain: A “failure epidemic” is defined as occurring when ten percent (10%) of any single “lot” of goods or merchandise (a “lot” comprising units scheduled for delivery on or about the same date”) exhibit substantially the same failure within ninety (90) days from the date of shipment, provided, however, that Buyer shall have complied with any and all routine preventive maintenance and periodic parts replacement requirements defined by the Seller as per goods specification. In the event that a failure epidemic prevents the beneficial use of a unit, responsible purchasing personnel shall notify Seller and shall endeavor to diagnose the cause of such failures, assisted by the Seller if needed. If Buyer determines that such a failure epidemic is due to a deficiency, mistake or omission in Seller’s design, manufacture, or material selection with respect to such goods assembly, Seller will at its own expense:
1. Apply the necessary engineering quality assurance and/or other personnel required to verify the diagnosis and to use its best efforts to find the most immediate solution including redesign if necessary to correct the problem;
2. Use its best efforts to deliver to Buyer all replacement parts, sub-assemblies, assemblies, fix kits, and/or materials required to implement the solution, within thirty (30) days following said notification;
3. Provide on-site labor and assistance if necessary for the correction of such deficiencies or replacement of defective assemblies;
4. At the end of the first two (2) years after Buyer’s first use, if failure rates cause mean time between failure to be decremented by twenty percent (20%) or more due to defective parts, workmanship, or design, Seller shall repair or replace the defective units in accordance with the procedure specified for failure epidemics.
VI. Proprietary Rights and Tooling
Unless otherwise specified by Buyer, Seller shall furnish all necessary tools, dies, gauges, fixtures, drawing and patterns at its sole expense. Any and all rights, title and interest in all tools, dies, patterns, drawings, etc., which Buyer has ordered and paid for, shall be the property of Buyer and shall be returned to Buyer in good condition with ordinary wear and tear excepted upon demand. No additional cost will be permitted should Buyer, at any time, demand the return of same. Seller expressly understands that all tooling, blueprints, sketches, trade secrets or other information or tangible items received from Buyer shall be treated as bailed property of the Buyer which shall remain confidential and not be disclosed to any third-parties for any reason or use, unless Buyer gives written consent.
A. Timing of Delivery. Seller shall make deliveries in the quantities and at the time specified in this Agreement. No act of Buyer, including, without limitation, modification of this Order or acceptance of late deliveries, shall constitute a waiver of this provision.
B. Modification of Delivery Terms. Buyer reserves the right to change delivery specifications in writing in accordance with its requirements within a reasonable time frame before delivery.
C. Delay of Delivery. Seller shall notify Buyer immediately of any circumstance which is delaying or which threatens to delay the timely performance of this Agreement, but such notice shall not excuse performance by Seller nor affect Seller’s liability for performance hereunder. If seller fails to deliver any or all of the material or merchandise or fail to render any services covered by this order within the time agreed, Buyer reserves the right to (1) purchase elsewhere and charge Seller with any loss incurred as a result thereof, (2) request Seller to supply all necessary documentation, licenses, tools, materials etc. in order to make or have made the goods, or (3) at Buyer’s option, to cancel or reject this order as to any materials or merchandise not delivered and any services not rendered, and Buyer shall be under no obligation to accept or pay for the same or compensate Seller for any expense which may have incurred. Nothing in this clause shall affect any other right conferred on Buyer by law.
D. Goods Delivered Contrary to Agreement Schedule. Buyer reserves the right to reject or return at Seller’s risk and expense all nonconforming goods, shipments made in excess of Buyer’s Order, or shipments made in advance of delivery schedules. Acceptance of an advance delivery by Buyer does not waive Buyer’s right to defer payment on this advance delivery according to previously scheduled and agreed payment dates.
E. Protection of Goods for Delivery. Seller shall insure all shipments for full value for the benefit of Buyer. Seller shall use all commercially reasonable shipping, packing and delivery methods to insure on-time deliveries and to protect the goods in transit.
F. Title and Risk of Loss. Shipment shall be F.O.B. Buyer’s dock. Seller warrants that, upon delivery, it has transferred free and clear title of the goods to Buyer and that there are no liens upon the goods or services provided hereunder. Title and risk of loss or destruction of the goods shall pass from Seller to Buyer upon written acceptance of the goods at Buyer’s receiving dock.
A. Option to Cancel. The Buyer reserves the right to terminate, cancel, or suspend this order in whole or, from time to time, in part even though Seller is not in breach hereunder. In such event, there will be made an equitable adjustment of the terms of this order mutually satisfactory to Buyer and Seller. The amount claimed shall not exceed the price set forth herein, less the cost of Seller’s performance to complete and any other cost savings realized as a result of termination, cancellation or suspension. Upon receipt of any notice of such termination, Seller shall, unless such notice otherwise directs, immediately discontinue all work on the order and deliver, if and as directed, to the Buyer all completed and partially completed articles, work in progress and materials purchased or acquired for the performance of this order. This provision does not limit or affect the Buyer’s right to terminate or cancel this Agreement in the event of a material breach of this Agreement by Seller or under any of the terms of the Agreement.
B. Bankruptcy or Insolvency. In the event any proceedings, voluntary or involuntary, in bankruptcy or insolvency by or against Seller, including any proceeding under the Chandler Act or in the event of the appointment, with or without Seller’s consent, of an assignee for the benefit of creditors, or of a receiver, then the Buyer shall be entitled to cancel any unfilled part of this order without any liability whatsoever.
VII. Warranties & Remedies
A. Express Warranty. In addition to any warranties (express or implied) or remedies afforded Buyer at law or equity, Seller expressly warrants that the goods and services provided under this Agreement conform to the description, specifications and provisions herein. The goods and services are free from defects in design, manufacture, material and workmanship, are merchantable, and are fully fit for their intended purpose, including the purpose for which they will be used by Buyer or Buyer’s customer.
B. Indemnification. The Seller agrees to defend and indemnify Buyer and save it harmless from all claims, liabilities, suits and actions which may be made or brought against it by virtue of any claims or demands of every kind which any buyer of such merchandise from Buyer (including Buyer’s officers, customers, agents, employees, representatives, and affiliated companies), may make against Buyer arising from the use of such merchandise, or from any patent or hidden defects in the quality of said merchandise, or from the dangerous conditions thereof, and agrees to repay the amount paid by Buyer to settle any of said claims or liabilities, and to pay any judgment rendered against Buyer in any such action or suit and to reimburse Buyer for all costs, attorney’s fees and other expenses incurred by it in the defense of any such suit or suits.
C. Patent and Trademark Indemnification. Seller agrees to defend, indemnify and hold Buyer harmless from any and all claims, causes of action, demands, or disputes which allege, in whole or in part, any United States or foreign patent, trademark or copyright infringement with respect to the sale, use, distribution or application of the goods or services provided by Seller. Said protection and indemnification shall include indemnification for Buyer’s expenses of litigation, court costs, expert expenses and attorney’s fees made or recovered against Buyer by any person or persons whomsoever, on account of the use or sale of such article by Buyer in violation of any right(s) claimed under any such patent or copyright and to repurchase from Buyer at the price said herein any of said merchandise then resold, in the event any infringement action is instituted against Buyer concerning said merchandise.
D. Attorney’s Fees. In the event it is necessary for Buyer to enforce the terms and conditions of this Agreement, or to defend or prosecute any litigation arising out of or as a result of this Agreement, or in connection with the sale of goods and/or services to Buyer by Seller, Buyer shall be entitled to recover from Seller, in addition to any other relief granted, reasonable attorneys’ fees, expert fees, costs and expenses of litigation to the extent Buyer is the substantially prevailing part.
E. Consequential Damages. Buyer may recover consequential damages for any breach of this agreement to the extent consequential damages are reasonably foreseeable.
F. Additional Remedies. The rights and remedies hereunder are cumulative and additional to any other or further rights and remedies at law or equity. No waiver or breach of any provision hereof shall constitute a waiver of any other breach, or of such provision.
A. Completely and Fully Integrated Agreement. This Agreement is the complete, entire and exclusive statement of the terms of the understanding between the parties concerning the sale of goods or services under this Agreement, merging and superseding all prior negotiations or agreements of the parties, either written or oral, made wither prior to or contemporaneous with this Agreement. Where a conflict exists between the language of the Agreement’s terms and Seller’s terms of acceptance, the terms of this order shall prevail.
B. Modification or Alteration. Seller agrees that no statement, condition or agreement by any agent, employee, or officer of Buyer creating any alteration or modification of the Agreement may in any way affect any terms or conditions of this Agreement, unless given in writing by the Buyer.
C. Discrimination. Seller shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, handicaps unrelated to ability, or disabled or Vietnam era veteran status.
D. Regulatory Compliance. Seller represents by acceptance of this purchase order that they will comply with the provisions of Section 202 of Executive Order #11248 and the rules and regulations issued pursuant to Section 201 and the provisions of Section 503/Handicapped and 402/Veterans regulations, hereby incorporated by reference, and amendments thereto. Furthermore, Seller warrants that with respect to the articles furnished or the services performed hereunder, or both of them, that it has fully complied with the requirements of the Fair Labor Standards Act, as amended, all laws restraining the use of convict labor, any regulations issued under the foregoing and all other applicable federal, state and local laws, rules, regulations and executive orders.
E. Force Majeure. Buyer will have no liability or obligation to Seller of any kind, including but not limited to any obligation to accept products or goods, arising from any delay or failure to perform all or part of this Agreement as a result of causes, conduct, or occurrences beyond Buyer'’ reasonable control, including, but not limited to, strikes, floods, riots, war, rebellion and all other contingencies unavoidable or beyond its control which makes it impossible to or creates an undue hardship to accept delivery of the material listed herein.
F. Assignment/Waiver. There shall be no assignment, sublet, or transferred pledge without the prior written consent of Buyer. No claim or right arising out of a breach of this Agreement can be discharged in whole or part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party.
G. Governing Law/Forum Selection. This Agreement shall be governed by the internal laws (exclusive of the conflicts of law principles) of the State of Illinois. The parties consent to the exclusive and sole jurisdiction of the federal court located in Chicago, Illinois or the state court located in Lake County, Illinois with respect to all litigation, claims, causes of action, demands, controversies or disputes among the parties.