PRECISION FLUOROCARBON, INC.
PURCHASE ORDER TERMS & CONDITIONS
THE FOLLOWING STANDARD TERMS AND CONDITIONS (“TERMS OF PURCHASE”) APPLY TO ALL PURCHASE ORDERS OF PRECISION FLUOROCARBON, INC. (“PFI”) TO ANY SUPPLIER OF GOODS AND/OR SERVICES (“SUPPLIER”). SUPPLIER’S ACCEPTANCE OF ANY OFFER OR PROPOSAL BY PFI IS EXPRESSLY LIMITED TO THESE TERMS OF PURCHASE. THESE TERMS OF PURCHASE SHALL SUPERCEDE ALL PRIOR REPRESENTATIONS, QUOTATIONS, PROPOSALS, ORDERS, AGREEMENTS OR UNDERSTANDINGS. ANY PURCHASE ORDER, OFFER, OR COUNTER-OFFER MADE BY SUPPLIER WITH VARYING TERMS IS/ARE DEEMED MATERIAL ALTERATIONS OF PFI’S PURCHASE ORDER AND ARE EXPRESSLY REJECTED BY PFI. NEITHER PFI’S FAILURE TO OBJECT TO SUPPLIER’S ACKNOWLEDGMENT, CONFIRMATION, INVOICES, OR OTHER COMMUNICATIONS THAT MODIFY, ADD TO, OR ARE INCONSISTENT WITH THESE TERMS NOR THE ACCEPTANCE OF GOODS OR SERVICES BY PFI HEREUNDER SHALL BE DEEMED AN ACCEPTANCE BY PFI OF ANY TERMS, WARRANTIES, OR CONDITIONS THAT ARE ADDITIONAL TO, DIFFERENT FROM, OR CONFLICTING WITH THESE TERMS OF PURCHASE.
- Acceptance and Entire Agreement. The sole manner of acceptance by Supplier of PFI’s purchase order (“Purchase Order”) shall be performance. PFI is not bound by any provisions at variance with these Terms of Purchase that may appear on any acknowledgment, confirmation, invoice or other communication used by Supplier, unless expressly accepted in writing by a duly authorized representative of PFI.
- Prices. All prices are in U.S. dollars unless otherwise stated. Prices quoted by Supplier shall by F.O.B. PFI’s facility unless otherwise noted by PFI and shall include: (a) all services, labor, boxing, crating, packaging, shipping and handling, freight, duty drawback rights and warranties transferrable from Supplier to PFI; and (b) all U.S. and non-U.S. international, Federal, state, provincial and local taxes and customs duties, the amount of which taxes and duties shall be itemized separately on Supplier’s invoice. All taxes and other governmental charges upon the production, manufacturer, distribution, sale or use of the goods, to the extent required or not forbidden by law to be paid by Supplier, shall be paid by Supplier. Supplier shall inform PFI of any duty drawback rights transferable from Supplier to PFI and supply any documents necessary for PFI to acquire such rights. Supplier shall reimburse PFI or apply credit against the price of the goods for any custom duties owed or paid by Supplier for which drawback rights exist and which are not validly and promptly transferred to PFI.
- Changes to Order. PFI shall have the right at any time to make written modifications to a Purchase Order. Should any change affect prices (or delivery time) contained in the Purchase Order, Supplier shall, before proceeding, notify PFI of any price change (or changes in delivery time). No modification to PFI’s Purchase Order shall be effective unless in a written change order signed by PFI and acknowledged by Supplier. Any charge for changes not so authorized by PFI is invalid and unenforceable.
- Cancellation/Termination. PFI may cancel all or any part of PFI’s Purchase Order without charge, cost, obligation or penalty: (a) if Supplier fails to deliver the goods in accordance with any delivery or performance dates specified in PFI=s Purchase Order; (b) if Supplier fails to comply with any other provision of these Terms of Purchase and does not cure such failure within a period of ten (10) business days after notification by PFI or such longer period as PFI may authorize in writing; or (c) if Supplier becomes insolvent, is subject to the Bankruptcy courts, enters into an arrangement with its creditors, is put into liquidation or has a receiver appointed. PFI shall not be liable for any direct, indirect, special, incidental, punitive or consequential damages or payment resulting from its cancellation of all or any party of PFI’s Purchase Order. PFI also reserves the right to cancel this Purchase Order in whole or in part at any time, for its convenience, by written notice to Supplier. Immediately upon receipt of such notice, Supplier shall stop all performance hereunder except as otherwise directed by PFI. If Supplier is not in default of any of its obligations hereunder at the time of such termination, PFI shall pay to Supplier as its sole and exclusive remedy, an amount equal to those reasonable and documented costs incurred by Supplier prior to termination; provided, however, that the above amount, plus any prior payments, shall in no event exceed the purchase price of the goods.
- Assignment/Substitution. Supplier shall not assign its rights, or delegate or subcontract its performance under this Purchase Order in whole or in part without prior written consent from PFI. Any attempted assignment, delegation, or subcontracting without PFI’s prior written consent or any substitution by Supplier of goods which are alternatives to the goods which PFI has ordered shall be void and shall constitute a material breach by Supplier of PFI’s Purchase Order and these Terms and Conditions.
- Warranty. In addition to all warranties implied by fact or law and all other express warranties made by Supplier, Supplier warrants that the goods shall: (i) be new unless otherwise specified; (ii) conform as to quantity, quality and description with the specifications contained in PFI’s Purchase Order; (iii) be free of all defects in design, materials and workmanship; (iv) conform to any specifications, drawings, samples, or other descriptions furnished or provided to PFI by Supplier; (v) be merchantable and free from any defects in design, workmanship, and materials; (vi) be delivered free of any encumbrance, lien or security interest of a third party; (vii) be delivered free of the rightful claim of any third person by way of infringement of copyright, patent or trademark; (viii) be adequately contained, packaged, and labeled, and conform to the promises and affirmation of fact made on the container and label, if any; (ix) comply with all statutory requirements and relations relating to the goods; and (x) if the purpose for which the goods are required is indicated in PFI’s Purchase Order or known by Supplier, either expressly or by implication, be fit for that purpose. Supplier hereby affirms any and all express and implied warranties that may arise from course of dealing or usage of trade. These warranties are cumulative and shall extend eighteen (18) months from the date of delivery. All warranties shall survive any inspection, delivery, acceptance, or payment. Any replacement or repair of materials or correction to workmanship shall be additionally covered by a Supplier warranty for a period of one (1) year from the date the defect is remedied.
- Non-Conforming Goods. All goods furnished pursuant to PFI’s Purchase Order are subject to final inspection and approval by PFI. Any goods not in compliance with any specifications or other requirements of PFI=s Purchase Order or these Terms and Conditions, including the warranties above, are subject to rejection by PFI, and any or all of such goods may be returned to Supplier at Supplier’s expense. No goods returned as non-conforming shall be replaced unless authorized by PFI. Upon PFI’s election, Supplier shall replace or repair the defective or nonconforming goods and pay for all related expenses, including without limitation transportation charges for the return of the defective or nonconforming goods to Supplier and the delivery of repaired or replacement goods to PFI. Otherwise, Supplier shall return to PFI any payments paid to Supplier for non-conforming goods that have been returned to Supplier but not replaced. Any payments for goods made prior to PFI’s inspection shall not constitute an acceptance of said goods or impair the remedies of PFI hereunder or as provided by law.
- Title and Risk of Loss. Unless otherwise specified in PFI’s Purchase Oder, all goods shall be shipped F.O.B. PFI’s facility in Tomball, Texas (or such other destination as expressly designated by PFI). All title and risk of loss for the goods shall remain with Supplier until the goods are delivered to PFI at PFI’s facility in Tomball, Texas (or such other destination designated in PFI’s Purchase Order). All goods must be suitably packed, marked, and shipped in accordance with the requirements of applicable common carriers in a manner to secure the lowest transportation cost. No charge shall be made by Supplier for packing, boxing, drayage, or storage unless otherwise stated in PFI’s Purchase Order or these Terms and Conditions.
- Indemnification. SUPPLIER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS PFI AND ITS AGENTS, OFFICERS, DIRECTORS, OWNERS, EMPLOYEES, AND ASSIGNS FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, SUITS, ACTIONS, LOSSES, DAMAGES, PENALTIES, COSTS, OR EXPENSES (INCLUDING WITHOUT LIMITATION COURT COSTS, ALL ATTORNEY’S FEES, ALL OTHER COSTS OF INVESTIGATION AND LITIGATION AND REASONABLE LOST PROFITS) RESULTING DIRECTLY OR INDIRECTLY: (A) FROM ANY BREACH OF ANY WARRANTY, WHETHER EXPRESSED OR IMPLIED INCLUDING WITHOUT LIMITATION, DEATH OR INJURIES TO PERSONS AND/OR PROPERTY DAMAGE CAUSED BY DEFECTIVE MATERIALS OR WORKMANSHIP; (B) FROM INFRINGEMENT OF PATENTS, COPYRIGHTS OR TRADEMARKS RESULTING FROM THE USE, POSSESSION OR OWNERSHIP OF GOODS BY PFI; (C) AND FOR DAMAGE TO PROPERTY OF PFI OR OTHERS OF WHATSOEVER KIND OR NATURE, OR INJURIES TO PERSONS (INCLUDING BUT NOT LIMITED TO DEATH) ARISING DIRECTLY OR INDIRECTLY FROM THE NEGLIGENCE OR WILLFUL AND WANTON ACTS OR OMISSIONS OF SUPPLIER, ITS AGENTS, INDEPENDENT CONTRACTORS, SUBCONTRACTORS, OFFICERS, OR EMPLOYEES AND WHETHER OR NOT CAUSED OR CONTRIBUTED TO, IN WHOLE OR IN PART, BY THE NEGLIGENT ACTS OR OMISSIONS OF PFI OR ANY OF ITS AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, AND ASSIGNS, OR ANY OTHER PERSON OR ENTITY.
- Payment. Supplier shall issue an invoice to PFI on or after delivery. PFI shall pay all properly invoiced amounts due to Supplier within thirty (30) days after PFI’s receipt of such invoice, except for any amounts disputed buy PFI in good faith. In the event of a payment dispute, PFI shall provide a reasonably detailed description of each disputed item. The parties shall seek to resolve any disputes expeditiously and in good faith. Supplier shall continue performing its obligations under PFI’s Purchase Order notwithstanding any dispute.
- Safety Requirements. Supplier shall provide to PFI, prior to the delivery of any goods, appropriate Material Safety Data Sheets and/or Hazardous Material Data Sheets where applicable. Supplier warrants that the quality of the goods supplied to PFI comply in all respects with all safety and other requirements by any statute or other instrument having the force of law, as well as all environmental laws and regulations that apply to the goods at the time delivered to PFI pursuant to PFI’s Purchase Order.
- Special Tooling. All special tooling, molds, dies, forms, jigs, fixtures, programs, gages, patterns and other equipment furnished by PFI to Supplier shall remain property of PFI, shall be subject to removal upon PFI=s instruction and shall be used only in filling PFI=s orders. All such special tooling shall be held at Supplier’s risk and Supplier shall maintain all such items in good order and condition and insure them against all risks while in Supplier’s custody in an amount equal to the replacement cost, with loss payable to PFI, and upon completion of PFI’s Purchase Order, or as otherwise directed by PFI, return them to PFI in good order and condition. Copies of policies or certificate of such insurance shall be furnished to PFI on demand. Supplier must have systems in place to ensure that PFI’s property is clearly identifiable.
- Confidentiality. Any Confidential Information of PFI disclosed to Supplier in connection with PFI’s Purchase Order is confidential, solely for the use of performing PFI’s Purchase Order, and may not be disclosed or copied unless authorized in advance by PFI in writing. For purposes of these Terms of Purchase, “Confidential Information” includes any non-public, proprietary information that is not known to Supplier at the time of disclosure, including but not limited to trade secrets, intellectual property, specifications, technical data, inventions, discoveries, client information, customers information, or any other confidential mater acquired by Supplier by reason of PFI’s Purchase Order.
- Non-Waiver of Remedies. The remedies of PFI provided for herein shall be cumulative and shall be in addition to any other or further remedies provided in law or equity. No delay in the exercise of or the failure to exercise any right, remedy, or power of PFI shall be construed to be a waiver thereof, and such right, remedy, or power may be exercised from time to time as often as may be deemed expedient by PFI.
- Governing Law and Severability. These Terms of Purchase shall be construed and interpreted under, and all respective rights and duties of the parties shall be governed by, the laws of the State of Texas. All actions commenced pursuant hereto shall be brought in a court of competent jurisdiction in Harris County, Texas. If any provision of these Terms of Purchase is held to be prohibited or invalid, then such provision or term will be ineffective only to the extent of such prohibition or invalidity, without invalidating or affecting the remainder of such provision or the remainder of this Purchase Order.