Antex Electronics Corporation
Standard Purchase Order Terms and Conditions
(A) “Antex Electronics
Corporation” shall mean those entities controlled by, or under common control
of Antex for as long as such relationship remains in effect. All Affiliates of Antex may order goods and
Services. “Affiliates,” means all
current or future corporations that, directly or indirectly, through one or
more intermediaries, control or are controlled by, or are under common control
with, Antex or that are successors (whether by change of name, dissolution,
merger, consolidation, reorganization or otherwise) to any such corporation or
their businesses and assets.
“Control” means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of an entity through the majority ownership of voting
securities. It is the intention of the
parties (i) that such Affiliates shall be bound by the terms and conditions of
this Agreement (ii) that all of the goods and services provided under this
Agreement be made available to the Affiliates, (iii) that the Affiliates be
entitled to enforce this Agreement against Company and that (iv) the Affiliates
be third party beneficiaries to this Agreement.
(B)
Goods- shall be defined as the items described
on the face of the Purchase Order
(C)
Seller – shall be defined as
the company to whom this Purchase Order Agreement is directed as specified on
the Purchase Order.
(D) Services – shall be defined
as the tasks to be performed by Seller as specified herein.
2.
Formation of Contract
The Purchase Order shall constitute Antex’s offer to
buy from Seller and Seller’s offer to sell to Antex the Goods or Services
specified in the Purchase Order.
Seller’s acceptance of this Purchase Order shall be by prompt written
acknowledgment or by commencement of performance, and shall be strictly limited
to the terms stated herein.
(A) The obligation of Seller to meet the delivery dates, specifications, and quantities as set forth on the Purchase Order and herein shall be a basic assumption of the transaction as contemplated hereby, and time is of the essence of the Purchase Order. Seller will strictly adhere to the delivery and completion schedules specified in the Purchase Order. If, at any time, Seller believes it may be unable to comply with the delivery or completion schedules, Seller shall immediately notify Antex in writing of the probable length of any anticipated delay and the reasons for same, and shall provide Antex with an acceptable written recovery schedule. Seller will continue to notify Antex of any material change in Seller’s ability to comply with its obligations hereby on an on-going basis. If Seller fails to deliver Goods within any delivery schedule provided hereby, Antex may require Seller to ship Goods, at Seller’s expense, by airfreight or expedited routing.
(B)
Seller shall deliver all
Goods specified in the Purchase Order to Antex at the delivery address set
forth on the face hereof.
(C)
Antex may, at its option,
either retain (and store at Seller’s expense) any Goods received in excess of
fifteen (15) calendar days in advance of the specified Purchase Order delivery
schedule(s) or return them to Seller at Seller’s risk and expense. If such Goods are retained, time for payment
and discount shall be calculated on the basis of scheduled delivery dates.
(D) Unless specified by Antex,
Seller shall be responsible for selecting packaging methods and materials to
provide adequate protection at minimum cost.
Commercial packaging is normally acceptable for shipment to Antex. Packaging methods and material selected
should consider, as a minimum, fragility, part composition, surface finish,
size, weight and transportation mode. Any packaging specified or referenced in
the Purchase Order must be adhered to unless written deviation is authorized by
Antex. Nonconforming packaging is
subject to rejection by Antex or repackaging by Seller at Seller’s expense.
(E)
A packing memorandum must
accompany each shipment arising under the Purchase Order, and the package containing
such memorandum must be clearly indicated.
The Purchase Order number shall be identified on all packages, shipping
papers, and other subordinate documents.
(F)
Except as specifically
authorized by the Purchase Order, Antex shall not be responsible for payment of
Goods delivered by Seller, which are not in conformance to quantities, or
specifications of the Purchase Order.
Upon receipt of any nonconforming Goods, Antex will notify Seller of
same and allow forty-eight (48) hours for Seller’s determination of whether
Seller will:
(i)
Take possession of such nonconforming Goods at Antex; or
(ii)
Authorize packing and return shipment at Seller’s sole expense
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Antex Electronics Corporation
Standard Purchase Order Terms and Conditions
Antex may inspect and test all Goods
and Services under the Purchase Order.
Such inspections and tests, to the extent practicable, may occur at all
times and places, including the period and place of manufacture or performance,
and in any event, before acceptance.
Antex will perform any inspections and tests in a manner that will not
unduly delay any tasks necessary for fulfillment of the Purchase Order.
5.
Acceptance and
Rejection
(A) Antex will
have thirty (30) days from receipt of Goods or Services to accept or reject
such Goods Delivered or Services performed by Seller. Any rejection of Goods or Services shall be
communicated by written notice of rejection delivered by Antex to Seller within
said thirty (30) day period.
(B)
If Seller
tenders Goods to Antex that fail to conform in any respect with said Good’s
published specifications, documentation, or other written representations,
Antex, in its sole discretion, may require Seller to replace or correct such
Goods, at no increase in Purchase Order price.
If Seller is unable to correct or replace nonconforming Goods within the
delivery schedule specified herein, Antex may continue to require their
delivery and make an equitable price reduction.
(C)
If Services
fail to conform to the requirements of the Purchase Order, Antex may require
Seller to perform the Services again in conformity with Purchase Order
requirements, at no increase in Purchase Order price. When defects in Services
cannot be corrected by re-performance, Antex may reduce the Purchase Order
price to reflect the reduced value of the Services performed.
6.
Title and Risk
of Loss
Seller shall accept all risk of loss
until Antex receives Goods ordered hereunder.
Title to Goods ordered hereunder shall pass to Antex upon Antex’s
receipt thereof.
Unless otherwise provided herein, payment terms for all invoices under the Purchase Order will be net forty-five (45) days from the date of the invoice.
The fees set forth in the Purchase Order d not include any amount for taxes. If any sales, use, excise or other taxes (except for taxes based upon Seller’s net income) are assessed against or required to be collected in connection with the Purchase Order, Seller shall itemize such taxes on all invoices issued in connection with the Purchase Order. Antex agrees to pay an amount equal to any and all such taxes to the jurisdictions collecting same. Notwithstanding the foregoing, Seller shall contest any such taxes if requested to do so by Antex; provided that Antex agrees to protect, indemnify, save and hold Seller harmless against all liabilities, fines, penalties and expenses (including reasonable attorney’s fees) arising out of such contest.
(A) Antex may, at any time, upon issuance of a written change order, make changes within the general scope of the Purchase Order, which affect the:
(i)
drawings,
designs or specifications;
(ii)
method of
shipment or packing;
(iii)
place of
inspection, delivery or acceptance;
(iv)
quantities and
delivery schedule
(v)
description of
time or place of performance of Services;
(B)
If any such
change causes an increase or decrease in the cost of or the time required for
performance of the Purchase Order, an equitable adjustment shall be made in the
Purchase Order price or delivery schedule or both, and the Purchase Order shall
be modified in writing accordingly. Any
claim by Seller for adjustment under this provision must be asserted in writing
to Antex not later than thirty (30) calendar days after the date of receipt by
Seller of the written change authorization or within such extension as Antex
may grant in writing. Antex may, in its
sole discretion, consider any claim received from Seller regardless of then
asserted. Such claim shall be in the form of a complete change proposal fully
supported by factual information.
(C)
Pending any
such adjustment, Seller will diligently proceed with Purchase Order as
modified. If the cost of property made
excess or obsolete as a result of change in included in Seller’s claim for
adjustment, Antex shall have the right to direct the manner of disposition of
such property. Antex shall have the
right to examine any of Seller’s pertinent books and records for the purpose of
verifying Seller’s claims.
(D)
Notwithstanding
any dispute under this Article, Seller will proceed with performance of the
Agreement as changed.
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Antex Electronics Corporation
Standard Purchase Order Terms and Conditions
(A) Seller warrants that all Goods, when and
as delivered to Antex, will conform to their specifications, and will be free
from defects in materials and workmanship.
(B)
Seller warrants that Services
performed under the Purchase Order will be performed with professional
diligence and skill and will conform to the requirements of the Purchase Order
in all material respects.
(C)
Seller warrants that its
performance as called for hereunder does not and shall not violate (i) any
applicable law, rule, or regulation now or hereafter imposed; (ii) any
contracts with third parties; or (iii) any third-party rights in any patent,
trademark, copyright, trade secret, or similar right.
(D) Seller warrants that the
title conveyed to Antex shall be good and merchantable and its transfer
rightful, and that all Goods shall be delivered free from any security interest
or other lien or encumbrance.
(E)
Seller warrants that the
price of Goods delivered or Services performed under the Purchase Order do not
exceed the price charged by Seller to any other customer purchasing the same
Goods or Services in like or lesser quantities and under the same or similar
circumstances.
(F)
If Seller breaches the
warranties as set forth herein, Antex may, at no increase in Purchase Order
price (i) require Seller to promptly repair or replace, At Seller’s election,
defective or nonconforming Goods; (ii) require Seller to promptly furnish
materials or parts and installation instructions required to successfully
accomplish the correction of defective or nonconforming Goods, and equitably
reduce the Purchase Order price to account for the cost of removal and
installation; (iii) require Seller to promptly redesign defective or nonconforming
Goods not manufactured pursuant to designs furnished by Antex and require
Seller to promptly repair or replace Goods manufactured in accordance with such
defective design; (iv) require Seller to promptly correct or re-perform at Seller’s election, defective or nonconforming
Services; or (v) equitably reduce the Purchase Order price.
Seller will promptly disclose to Antex in writing and invention, works of authorship, improvement, development, discovery or mask work (herein collectively “Intellectual Property”) conceived or reduced to practice by Seller, either solely or in collaboration with others, using funds paid by Antex under the Purchase Order. For all such Intellectual Property, Seller agrees to assign, and upon creation of each such piece of Intellectual Property hereby automatically assigns, to Antex, and its successors and assigns, all right, title, and interest in and to any and all United States and international copyrights in each and every such piece of Intellectual Property. Upon Antex’s request, Seller shall confirm such assignment by execution and delivery of such assignments, conformations, or other written instruments as Antex may reasonably request. Antex shall have the right to obtain and hold in its own name all copyright registrations and other evidence of rights that may be available for such Intellectual Property.
12.
Indemnification
Seller hereby agrees to defend, settle, and hold Antex harmless from and against any and all claims, demands, and actions, and any liabilities, damages, or expenses resulting therefrom, including court costs and reasonable attorney fees, arising out of or relating to (i) Seller’s provision of Goods to Antex, (ii) the Services performed by Seller hereunder, (iii) Seller’s breach of section 10 (C) or (iv) Seller’s failure to comply with the terms of this Agreement or the Purchase Order. Seller’s indemnification obligations hereunder shall be contingent upon (i) Antex’s prompt notification of any such claim, demand, or action asserted against Antex and (ii) Antex’s cooperation with Seller in defense and settlement of said claim, demand or action and (iii) Antex’s grant to Seller of the sole control of the defense or settlement of any such claim, demand, or action. Antex, may, however, at its sole expense, elect to participate in such defense or settlement; however, expenses incurred by Antex with respect to such participation shall not be reimbursable by Seller.
Seller
agrees that it shall not, without the written consent of Antex, use or disclose
any of Antex’s information, data, material or exhibit created, developed,
produced or otherwise obtained in the course of the work required hereunder for
any purpose except as necessary to implement or perform the Purchase Order and
this Agreement and shall protect same using the same standard of care as it
uses to protect its own confidential information. Seller further agrees that it will not
divulge any matter known to it, the disclosure of which would be detrimental to
the interests of Antex as determined by Antex.
The foregoing obligations of confidence shall not apply to (i)
information in the public domain through no fault of Seller (ii) information
previously and lawfully known by Seller prior to disclosure by Antex (iii)
information rightfully learned from a third party not under restriction of
disclosure, or (iv) information disclosed pursuant to court order, judicial
subpoena or requirement of government authority with reasonable prior notice
given to Antex by Seller.
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Antex Electronics Corporation
Standard Purchase Order Terms and Conditions
(A) All tools, dies, patterns, etc., which Antex has ordered and paid for shall be the property of Antex and must be returned to Antex upon demand. No additional cost will be allowed should Antex, at any time demand the return of same. Seller shall use the tools, dies, patterns, etc., furnished by it solely for the manufacture and supply of products to Antex and shall at its own expense maintain such tools, dies, patterns, etc., in good and effective working order.
(B) The price quoted to Antex for tools, dies, patterns, etc., shall be the final and complete cost.
(C) Seller shall be responsible for all of Antexs’s tools, dies, patterns, etc., in its possession and shall protect Antex against fire loss of same by means of proper insurance coverage.
(D) All tools, dies, patterns, etc., belonging to Antex and in Seller’s possession shall not be used by third persons unless Antex gives written consent.
(A) Antex in its sole discretion may
terminate performance of work under the Purchase Order in whole or in part, by
delivering to Sellers written Notice of Termination specifying the extent of
termination and the effective date thereof.
Upon termination as provided for herein, Seller shall be entitled to
reasonable payment for (i) any Goods delivered and accepted but previously
unpaid for or (ii) effort expended prior to the date of termination.
(B)
In the event of termination
for convenience as provided herein, Seller will submit to Antex a fully
supported written claim for any amounts due within (10) business days after
receipt of Notice of Termination. All
amounts so claimed must accompanied by supporting material reasonably
sufficient to permit Antex to substantiate the amounts thereof. If Seller fails to timely submit a fully
supported claim, Antex will determine the amount due, if any, and Seller will
be bound by Antex’s determination.
(A) Antex may, by written notice of default to Seller, terminate the Purchase Order in whole or in part (i) if Seller fails to deliver Goods or to perform Services within the time specified by the Purchase Order or any written extension; (ii) If Seller fails to perform any other provision of the Purchase Order or fails to make progress, so as to endanger performance of the Purchase Order, and, in either of these two circumstances, does not cure the failure within ten (10) calendar days after receipt of this notice from Antex specifying the failure; or (iii) in the event of Seller’s suspension of business, insolvency, institution of bankruptcy, liquidation proceedings by or against Seller appointment of a trustee or receiver for Seller’s property or business, or any assignment, reorganization or arrangement by Seller for the benefit of its creditors.
(B)
If Antex terminates the
Purchase Order in whole or in part, in addition to remedies provided by law,
Antex may require Seller to transfer title and deliver to Antex, as directed by
Antex, any (i) completed Goods, and (ii) any partially completed Goods and
materials, parts, fixtures, plans, drawings, information, and contract rights
(collectively, “Manufacturing Materials”) that Seller has specifically produced
or acquired for the terminated portion of the Purchase Order. Upon direction from Antex, Seller will also
protect and preserve property in its possession in which Antex has an interest.
(C)
Antex will pay the price
stated herein for Goods or Services accepted.
Payment for Manufacturing Materials accepted by Antex and for the
protection and preservation of property will be at a price determined in
accordance with Section 15 (Termination for Convenience). Antex may withhold from any amount due under
the Purchase Order any sum Antex determines to be necessary to protect Antex
against loss because of outstanding liens or claims of former lien holders.
(D) If, after termination, its is
determined that Seller was not in default, the rights and remedies of the
parties would be as if the Purchase Order had been terminated in accordance
with Section 15 (Termination for Convenience).
A court
of competent jurisdiction located in Los Angeles County, California will decide
any dispute that arises under or is related to the Purchase Order. Pending final resolution of any dispute
arising under or related to the Purchase Order, Seller will proceed with
performance of the Purchase Order in accordance with Antex’s instructions.
The laws of the State of California shall govern
this Agreement.
8.
No Waiver
The failure by either party to enforce any right or to insist upon strict compliance with the terms and conditions of this Purchase Order shall not at any time constitute a waiver of such right or any other right, and will not modify the rights and obligations of either party under this Agreement.
9.
Rights and Remedies
The rights and remedies of the parties set forth in this Agreement are cumulative and in addition to any other rights or remedies that the parties may have at law or in equity.
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Antex Electronics Corporation
Standard Purchase Order Terms and Conditions
Seller shall procure all necessary licenses or permits and shall abide by all applicable statutes, laws, regulations, and ordinances of the United States and the state, territory, and political subdivision in which any work under the Purchase Order is performed.
Neither the Purchase Order, this Agreement nor any interest therein, nor claim thereunder may be assigned or transferred by Seller except as expressly authorized in writing by Antex.
Neither party is liable hereunder for any failure or delay in its performance under the Purchase Order arising from any cause beyond the defaulting party’s reasonable control, including acts of God, such as fires and floods, earthquakes, epidemics, wars, governmental actions, civil disturbances, strikes and riots. Provided the defaulting party has used every available and reasonable means to remedy or mitigate its failure to perform, the time for performance will be extended by the amount of the delay.
The Purchase Order and this Agreement state the entire agreement between Antex and Seller with respect to the subject matter hereof and supersedes all prior understandings, both written and oral. This Agreement may not be amended in any material form unless authorized in writing by Antex.
Seller’s
warranties under Section 12, (Indemnification), Section 13, (Confidentiality)
and Section 27, (Privacy) shall survive
any expiration or termination of this Agreement.
In the event of any conflict or inconsistency between the terms of this Agreement and any inconsistent supplemental terms specified by Seller, the terms and conditions of this Agreement shall govern.
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