Applicability. This purchase order is an offer by AMMEX Corporation (“Buyer”) for the purchase of the goods or services specified on the face of this purchase order from the party to whom the purchase order is addressed (“Seller”) in accordance with and subject to these terms and conditions (the “Terms”; together with the terms and conditions on the face of the purchase order, this “Order”). This Order, together with any documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to Buyer’s purchase order, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter hereof. Seller’s acceptance is expressly limited to the terms of this Order. These Terms prevail over any terms or conditions contained in any other documentation and expressly exclude any of Seller’s general terms and conditions of sale or any other document issued by Seller in connection with this Order.If this Order has been issued by Buyer in response to an offer, the terms of which are additional to or different from any of the provisions hereof, then the issuance of this Order by Buyer is subject to the express condition that Seller assent that this Order constitutes the entire agreement between Buyer and Seller with respect to the subject matter hereof and thereof. These Terms apply to any repaired or replacement goods provided by Seller hereunder. Seller agrees that it will never assert that it is not bound to the Terms; Seller acknowledges that if it performs under the subject purchase order it is agreeing to be bound to the Terms regardless of any argument to the contrary.
Acceptance. Seller’s acceptance of the Order shall be the earliest of: a) Seller’s written acceptance of the Order; b) Seller’s commencement of performance of this Order; or c) ten (10) days from Seller’s receipt of this Order. Buyer may withdraw this Order any time before Seller’s acceptance.
Delivery Date. Seller shall deliver the goods in the ordered quantities or perform the services, each on the date(s) specified in this Order or as otherwise agreed in writing by the parties (the “Delivery Date”). Timely delivery of the goods or services is of the essence. If Seller fails to deliver the goods or perform the services in full on the Delivery Date, Buyer may terminate this Order immediately by written notice to Seller and Seller shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses attributable to Seller’s failure to deliver the goods or perform the services on the Delivery Date. Alternatively, if Seller fails to meet the Delivery Date, Buyer, without limiting its other rights or remedies, may direct expedited routing; any excess costs incurred thereby shall be debited to Seller’s account. Buyer may return any goods delivered prior to the Delivery Date at Seller’s expense and Seller shall redeliver such goods on the Delivery Date.
Delivery Location. All goods shall be delivered to the address specified in this Order (the “Delivery Location”) or as otherwise instructed by Buyer.
Shipping. Delivery shall be as stated on the face of the Order, but if not so stated, then delivery of goods shall be FOB Port of Origin (Incoterms 2010). Seller shall give written notice of shipment to Buyer when the goods are delivered to a commercial carrier. Seller shall provide Buyer all shipping documents, including the proforma invoice, commercial invoice, packing list, air waybill/bill of lading and any other documents necessary to release the goods to Buyer promptly after Seller delivers the goods to the transportation carrier. This Order number must appear on all shipping documents, shipping labels, air waybill/bill of lading, invoices, correspondence, and any other documents pertaining to this Order. Quantity of goods delivered shall not exceed 10% over or under the quantity ordered by Buyer unless otherwise noted on the face of the Purchase Order. If the quantity of goods delivered exceed the 10% over or under, Seller agrees to pay as liquidated damages a charge of ten percent (10%) of the total order, which Seller acknowledges is a reasonable estimation of the damages Buyer will sustain as a result of Seller’s error.
Title /Risk of Loss. Title and risk of loss in all goods sold hereunder shall pass to Buyer upon Seller’s delivery to carrier or vessel at shipping point of origin. Seller bears all risk of loss or damage to the goods until delivery of the goods to the carrier or vessel at shipping point of origin.
Packaging. Goods must be packed for shipment according to Buyer’s instructions or, if none, in a manner sufficient to ensure that the goods are delivered in undamaged condition. Goods shall be marked and labeled in compliance with all applicable laws, standards, and regulations. Seller must provide Buyer prior written notice if it requires Buyer to return any packaging material. Any return of packaging material shall be at Seller’s expense.
Amendment. No change to this Order is binding upon Buyer unless it is in writing, specifically states that it amends this Order and is signed by a designated manager of Buyer.
Nonconforming Goods. Buyer may inspect all or a sample of the goods on or after the Delivery Date. Buyer, at its sole option, may reject all or any portion of the goods if it determines they are nonconforming or defective. If Buyer rejects any portion of the goods, Buyer may, upon written notice to Seller: (a) rescind this Order in its entirety; (b) accept the goods at a reasonably reduced price; or (c) reject the goods and require replacement thereof. If Buyer requires replacement of the goods, Seller shall, at its expense, promptly replace the nonconforming goods and pay for all related expenses, including, but not limited to, transportation charges for return of the defective goods and delivery of replacement goods. If Seller fails to timely (not more than sixty (60) days) deliver replacement goods, Buyer may replace them with goods from a third party and charge Seller the cost thereof and terminate this Order for default. Any inspection or other action by Buyer hereunder will not reduce or otherwise affect Seller’s obligations under this Order. Buyer may conduct further inspections after Seller has carried out its remedial actions. If the Seller identifies nonconforming goods prior to or following shipment to Buyer, Seller shall notify Buyer immediately. Buyer will evaluate the nonconformance and determine appropriate disposition.
Price. The price of the goods or services is the price stated in this Order. If no price is included in this Order, the price shall be the price set out in Seller’s published price list in force as of the date of this Order. Unless otherwise specified in this Order, the price includes all packaging, transportation costs to the Delivery Location, insurance, customs duties and fees and applicable taxes, including, but not limited to, all value- added taxes, sales, use or excise taxes. No increase in the price is effective, whether due to increased material, labor, or transportation costs or otherwise, without Buyer’s prior written consent.
Payment Terms. Seller shall issue an invoice to Buyer on or after the delivery and only in accordance with this Order. Except as otherwise set forth on the face of the Order, Buyer shall pay all properly invoiced amounts due to Seller NET 30 days after Buyer’s receipt of such invoice, except for any amounts disputed by Buyer in good faith. All payments hereunder will be in US dollars and made by company check or as may otherwise be agreed between Buyer and Seller. In the event of a payment dispute, Buyer shall deliver a written notice to Seller reasonably describing each disputed item. The parties shall seek to resolve all such disputes expeditiously and in good faith. Seller shall continue performing its obligations under this Order notwithstanding any such dispute.
Changes by Buyer. Buyer may, at any time, in writing, make changes within the general scope of this Order, in any one or more of the following: (a) applicable drawings, designs or specifications; (b) method of shipment or packing; (c) place or timing of delivery; (d) materials, methods or manner of production; or (e) quantity. If any such change causes an increase or decrease in the cost of or the time required for performance of this Order, an equitable adjustment shall be made in the price or delivery schedule or both, and this Order shall be modified accordingly. Any claim by Seller for adjustment hereunder must be asserted within 20 days from Seller’s receipt of the change notice, but such period may be extended upon Buyer’s written approval. However, nothing in this clause will excuse Seller from proceeding with this Order as changed or modified.
Changes by Seller. Seller shall notify Buyer 365 days in advance of obsolescence or discontinuation of any materials, processes, or products. Changes by Seller to the goods, manufacturing processes, location of manufacturing facility, sub-suppliers and raw materials or construction thereof, will not be made without prior written approval from Buyer.
Set-off. Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Buyer to Seller.
Warranties. Seller warrants to Buyer that all goods or services will conform to applicable specifications, drawings, designs, samples, and other requirements specified by Buyer and will be merchantable; free from any defects in workmanship, material, and design; fit for their intended purpose and operate as intended; merchantable; and free and clear of all liens, security interests, or other encumbrances. Goods and services provided hereunder will not infringe or misappropriate any third party’s patent or other intellectual property rights. These warranties survive any delivery, inspection, acceptance of, or payment for the goods or services by Buyer. These warranties are cumulative and in addition to any other warranty provided by law or equity and shall survive acceptance of and payment for the goods ordered or services provided hereunder. 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, Seller shall, at its own expense, promptly replace or repair the defective or nonconforming goods or services and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods or services to Seller and the delivery of repaired or replacement goods or services to Buyer.
Termination for Default. In addition to any remedies that may be provided under these Terms, Buyer may terminate this Order with immediate effect upon written notice to Seller, either before or after the acceptance of the goods or services, if Seller has not performed or complied with any of these Terms, in whole or in part, if Seller fails to make progress so as to endanger performance of the Order as reasonably determined by Buyer, or if 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. If Buyer terminates this Order pursuant hereto, Seller’s sole and exclusive remedy is payment for the goods or services received and accepted by Buyer prior to termination.
Termination for Convenience. Buyer may at any time (notwithstanding the existence of any of the causes or events specified in Section 16 or any other condition of default) cancel in whole or in part, the undelivered portion of the goods or services by written notice to Seller, who shall immediately upon receipt of such notice discontinue all work in respect to the cancelled portion of this Order except as may be necessary to preserve and protect the work and materials then in process. Seller shall use its best efforts to cancel and terminate all then existing orders placed by Buyer which are chargeable to the cancelled portion of this Order. In the event of such termination and if Seller is not in default hereunder, Buyer shall pay Seller, in addition to the price for all conforming goods and services previously delivered to and accepted by Buyer in accordance with the terms of this Order and not previously paid for, all reasonable direct costs necessarily incurred by Seller in connection with the cancelled portion of this Order, which payment(s) shall be in full settlement of all claims by Seller arising out of such cancellation, provided that Seller delivers to Buyer all goods, services and raw materials paid for by Buyer.
Indemnity. Seller shall defend, indemnify, and hold harmless Buyer and Buyer’s parent company and their subsidiaries, affiliates, successors or assigns and their respective directors, officers, and employees and Buyer’s customers (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any rights hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with the goods purchased or services received from Seller or Seller’s negligence, willful misconduct, or breach of this Order. Seller shall not enter into any settlement without Buyer’s or Indemnitee’s prior written consent.
Intellectual Property Indemnity. Seller shall, at its expense, defend, indemnify, and hold harmless Indemnitees against any and all Losses arising out of or in connection with any claim that such Indemnitee’s use or possession of the goods or receipt of the services infringes or misappropriates the patent, copyright, trade secret, or other intellectual property right of any third party. Seller shall not enter into any settlement without Indemnitee’s prior written consent.
Subcontractors. If Seller uses subcontractors for any part of the manufacture of the goods or performance of the services hereunder, Seller shall be responsible and liable for all acts or omissions of its subcontractors. Seller must obtain prior written authorization from Buyer to use subcontractors for any activity relating to the goods or services provided hereunder occurring on Buyer’s premises. These Terms shall be applicable to all subcontractors and Seller is responsible for enforcement. Seller will maintain a contractor management program to ensure that subcontractors comply with the safety requirements of these Terms and the Order. The Seller is responsible to flow down to its sub-suppliers all applicable Buyer requirements, including regulatory requirements where required.
Compliance with Law. Seller warrants that it is in compliance withand shall comply with all applicable laws, regulations, and ordinances, including but not limited to, all laws prohibiting engagement in corrupt practices, such as the U.S. Foreign Corrupt Practice Act. Seller has, and shall maintain in effect, all licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Order.
Export Control. Seller shall comply with all export control and sanctions laws, regulations, and orders applicable at the time of export, re-export, transfer, disclosure or provision of goods, software, technology, or services including, without limitation, the (i) Export Administration Regulations (EAR); (ii) Foreign Assets Control Regulations and associated Executive Orders; (iii) U.S. Food and Drug Administration; and (iv) laws and regulations of other countries (collectively, “Export Control Laws”). Unless this Order is for goods to be supplied on a “build to print” basis by Seller, Seller shall provide Buyer with (i) the applicable Harmonized Tariff Schedule Number; and (ii) the Export Control Classification Number (ECCN) of such goods, software, or technology that are controlled by the EAR; and (iii) any analogous classification under any other applicable law. Any subcontracts between foreign persons in the approved country for manufacture of goods or provision of services shall contain all the limitations of this Section. Upon Buyer’s request, Seller shall demonstrate to Buyer’s reasonable satisfaction Seller’s subcontractors’ compliance with this Section and all Export Control Laws. Upon completion of its performance under this Order, Seller and its subcontractors shall destroy or return to Buyer all Technical Data.
Code of Business Conduct and Ethics. Buyer has adopted ISM Principles of Sustainability and Social Responsibility, which includes the Code of Business Conduct and Ethics (the “Code”). The Code can be found at https://www.ismworld.org/globalassets/pub/docs/526-prinsussocres_5_20.pdf.Seller shall comply with the Code. Any knowingly material violation of the Code may be the grounds for Buyer to cancel any future order and/or terminate its relationship with Seller.
Government Contracts. If this Order is issued under any U.S. Government agency contract or subcontract thereunder, then Seller shall comply with all of the applicable provisions of Title 48 of the Code of Federal Regulations (“CFR”) relating to procurement by U.S. Governmental agencies, as the same may be amended, superseded, or modified. Seller is charged with knowing and complying with any and all such provisions in said Government Contract, which provisions are incorporated herein.
Record Retention, Inspection, and Audit Rights. Seller shall maintain complete books and records, including inspection records, with respect to all goods and services, which records shall be in English and be available to Buyer during performance of this Order and until the latest of: a) four years after final payment; b) final resolution of any dispute involving the goods or services delivered hereunder; or c) the latest time required by applicable law or regulation. Seller shall at any time, and after reasonable notice by Buyer, (i) grant to Buyer, Buyer’s customers, and/or to any applicable regulatory authority, unrestricted access to (or if Buyer so requests, provide to Buyer copies of) such books and records, wherever such books and records may be located (including third-party repositories); and (ii) provide Buyer, Buyer’s customers and/or any such authority the right to access, and to perform any type of inspection, test, audit, or investigation at Seller’s premises, including manufacturing and test locations, for the purpose of enabling Buyer to verify compliance with the requirements of this Order or for any other purpose indicated by Buyer’s customers or said authority in certification, manufacture, use, and/or connection with the design, development, or support of the goods or services. Seller and its subcontractors shall furnish all reasonable facilities and assistance for the safe performance of the inspection, test, audit, and/or investigation.
No Waiver. No waiver by any party of any of the provisions of this Order will be effective unless in writing and signed by the party so waiving. Except as otherwise set forth in this Order, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Order will operate or be construed as a waiver thereof, nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
Confidential Information. All 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, whether disclosed orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with this Order is confidential, solely for the use of performing this Order and may not be disclosed or copied unless Buyer agrees 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 without notice and without the necessity of posting a bond or other undertaking. This Section shall 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 Seller on a non-confidential basis from a third party who was not under any obligation of confidentiality.
Force Majeure. Neither party shall be liable to the other for any delay or failure in performing its obligations under this Order to the extent such delay or failure is caused by an event or circumstance that is beyond that party’s reasonable control, 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 (a “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, strikes, embargoes, or industrial disturbances. Seller’s economic hardship, labor difficulties, or changes in market conditions are not considered Force Majeure Events. Seller shall use all diligent efforts to immediately notify Buyer in writing of any actual or potential Force Majeure Event, and the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized, and resume performance under this Order. If a Force Majeure Event prevents Seller from carrying out its obligations under this Order for a continuous period of more than ten (10) business days, Buyer may terminate this Order immediately by written notice.
Assignment. Seller shall not assign, transfer, delegate, or subcontract any of its rights or obligations under this Order without Buyer’s prior written consent. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve Seller of any of its obligations hereunder. Buyer may at any time assign, transfer, or subcontract any or all of its rights or obligations under this Order without Seller’s prior written consent.
Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Order 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. No relationship of exclusivity shall be construed from this Order.
No Third-Party Beneficiaries. This Order 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 under or by reason of these Terms.
Governing Law. All matters arising out of or relating to this Order shall be governed by and construed in accordance with the laws of the state of Washington without giving effect to any choice or conflict of law rule that would cause the application of the laws of any other jurisdiction. The United Nations Convention on the International Sale of Goods shall not apply to any matter arising out of or relating to this Order.
Arbitration. Subject to the provisions of this Order, any dispute, controversy, claim or difference which may arise between the Buyer and the Seller at any time hereafter whether during the continuance in force of this Order or upon or after its termination, in relation to any matter or thing herein contained or the operation or construction of this Order or any matter or thing in any way connected with, arising from or in relation to this Order or the rights, duties, and liabilities of the parties under this Order shall be submitted to arbitration. The arbitration may be held in either: a) King County, Washington conducted under the Rules of the American Arbitration Association (AAA), or b) alternatively in the country where the subject goods were purchased and conducted in accordance with the International Chamber of Commerce (ICC) Rules for the time being in force. The choice of the location for the arbitration shall be determined solely by Buyer. The Parties agree that in the arbitration:
the number of arbitrators shall be one, to be jointly appointed by the parties, and if the parties fail to agree on an arbitrator within the period of ten (10) working days from the first notice of dispute/claim issued by any party to the other party, the arbitrator shall be appointed by either the Seattle office of the AAA if the arbitration is conducted in Seattle, Washington (USA) under the AAA rules or the Director of the ICC if the arbitration is conducted in the country where the subject goods were purchased;
the language to be used in the arbitral proceedings shall be English; and
the arbitration agreement contained in this clause shall be governed by the laws of the state of Washington if conducted by the AAA in Seattle, Washington (USA) or in the country where the subject goods were purchased if conducted in accordance with the ICC Rules;
the decision of the arbitrator shall be final and binding, without any appeal rights; and
the non-prevailing party’s consent for the entry of the arbitration award to be domesticated in the country of its principal place of business shall be deemed granted by virtue of its signature on this Order (and no other consent will be needed by it).
Submission to Jurisdiction. In the event that Buyer determines that it is entitled to seek injunctive relief pursuant to Section 27 above then Seller consents to the exclusive jurisdiction and venue in the federal courts of the United States of America (Western District of Washington) or the courts of the state of Washington (King County Superior Court/Kent Division).
Cumulative Remedies. The rights and remedies under this Order are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
Notices. All notices, request, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of this Order and to Buyer’s address in Kent, Washington with separate copies being sent to Buyer’s Vice President of Logistics and Chief Financial Officer. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified mail (return receipt requested, postage prepaid). Except as otherwise provided in this Order, a Notice is effective only upon receipt of the receiving party and if the party giving the Notice has complied with the requirements of this Section.
Severability. If any term or provision of this Order is invalid, illegal, or unenforceable according to the Governing Law (Section 32), such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Order or invalidate or render unenforceable such term or provision in any other jurisdiction.
Survival. Provisions of this Order which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Order including, but not limited to, the following provisions: Set-off, Warranties, Indemnification, Intellectual Property, Compliance with Laws, Confidentiality, Governing Law, Submission to Jurisdiction and Survival.
