PURCHASE TERMS & CONDITIONS
1. OFFER, ACCEPTANCE AND DEFINITIONS – Seller’s performance under any Buyer purchase order constitutes Seller’s acceptance of these terms and conditions. Any additional, ambiguous or conflicting terms of Seller are expressly rejected from the interpretation and enforcement of these terms. For purposes of these Terms and Conditions, the following definitions apply. ANA shall be referred to as the “Buyer”. The party supplying the goods or services to Buyer shall be referred to as the “Seller”. The term “Goods” is defined as the services, products or components that Buyer is purchasing from Seller pursuant to the terms of the corresponding purchase order.
By fulfilling this order, Seller represents and warrants that the Goods conform to Buyer’s specifications. Non-Conforming Goods: Any and all non-conforming material will be returned immediately for replacement or credit issued to Buyer and proper disposition determined. A Seller issued RMA number to return all material will be requested for any ANA non-conforming materials notification. Upon notification of non-conformity, Seller must reply within a 24 hour period.
2. CHANGES – Buyer may, at any time, by written change order modify the design (including drawings, materials, and specification(s)), processing, method of packing and shipping, and the place of delivery, of the Goods. If any such change affects cost or delivery timing, Buyer shall adjust the purchase price and delivery schedules equitably. Seller shall not make any changes in the design, processing, packing, shipping, or place of delivery of the Goods without Buyer’s prior written approval.
3. TRANSPORTATION – All Goods shall be shipped F.O.B. Seller’s facility. Seller is responsible for loss or damage to Goods until acceptance by Buyer. Buyer may, upon reasonable notice, enter Seller’s premises at reasonable times to inspect such Goods and Seller’s records pertaining thereto. Upon Buyer’s request, Seller shall deliver such Goods to a carrier selected by Buyer, at Buyer’s option F.O.B., Seller’s facility or freight collect to a location selected by the Buyer, properly packed and marked in accordance with the requirements of the carrier and Buyer.
In the event that Buyer has certain inventory shipped to Seller that it acquired from a third party, or directly from Buyer, on consignment or otherwise, for Seller to affix or incorporate into a final product that Buyer is or will purchase from Seller (“Buyer Inventory”), and enters into a written agreement with the Seller for the Buyer Inventory on consignment or otherwise, that agreement shall be deemed to be incorporated into the terms and conditions of Buyer’s corresponding Purchase Order. In the absence of a written agreement, Sellers obligations regarding the possession, use and control of Buyer Inventory shall be treated the same as bailed property, on the same terms and conditions as set forth in the first paragraph of this section.
In addition, Seller shall advise Buyer upon receipt of the Buyer Inventory of the quantity of items received, the quantity of items already in inventory at the time of receipt of the shipment, and if the Seller receives any defective or damaged Buyer Inventory. Seller must document the damaged or defective Buyer Inventory with paperwork and pictures and notify the Buyer of the defect or damage within five (5) business days of receipt to determine the disposition of the damaged or defective Buyer Inventory. The Seller shall maintain insurance for the Buyer Inventory while in its possession against any damage, theft or loss that may occur. ANA shall be named as the insured/ loss payee for the Buyer Inventory.
In the event of any loss by damage, theft, disappearance, shortage or failure to account for all Buyer Inventory (“Loss”), Seller shall promptly pay to Buyer within seven (7) days after a Loss, the replacement cost of the Loss, plus incidental damages deriving from such Loss. Buyer shall maintain title to the Buyer Inventory, and Seller may only use Buyer Inventory for incorporation into products that Buyer is purchasing from Seller. Seller must account to Buyer for all Buyer Inventory, including Buyer Inventory on hand, as well as Buyer inventory used.
4. BLANKET PURCHASE ORDERS – A Purchase Order without quantities and delivery dates is defined as a “Blanket Purchase Order”. If delivery dates are not specified in the purchase order, Seller shall procure materials and fabricate, assemble, and ship Goods only as authorized in shipment releases issued to the Seller by the Buyer. Buyer may return over shipments to Seller at Seller’s expense for all required packing, handling, sorting, and transportation for the return. Buyer, from time to time and with reasonable notice, may change or temporarily suspend shipping schedules specified in the purchase order, or such shipment releases.
In the event that Seller fails to deliver Goods in accordance with the release schedule, and without prejudice to the rights Buyer has as set forth in these Terms and Conditions, Buyer may, at its option, cancel, revoke and terminate the release, partially or in its entirety, and the quantity of Goods set forth in the purchase order shall be reduced by the quantity of Goods set forth in the notice of partial termination, without cost to Buyer.
5. TERM TERMINATION – The Initial Term of the contract begins on the Effective Date shown on the Blanket Purchase Order and shall continue for a period of twelve (12) months following which the term shall automatically renew on an annual basis. Either party may terminate this contract upon written notice if the other party breaches this contract which breach remains uncured for a period of thirty (30) days. Buyer may terminate this contract, at any time and without cause, upon sixty (60) days prior written notice.
6. FINISHED GOODS – Seller shall maintain at least two (2) weeks of finished Goods (based on releases from the preceding month) on-hand, ready to ship to Buyer if operating under a Blanket Purchase Order. Volume projections are not a commitment by Buyer to purchase the quantities referenced in the volume projections.
7. PACKING, MARKING, AND SHIPPING – All Goods shall be delivered in containers that properly protect them, do not cause damage or corrosion, adhere to Buyer guidelines when applicable and do not cause safety concerns to material handlers or transportation companies. Seller shall pack, mark, and ship the Goods in accordance with the requirements of Buyer and the requirements of carrier transporting such Goods to the Buyer. Seller shall mark each package in accordance with Buyer’s requirements, and Seller shall route shipments in accordance with Buyer’s instructions. Seller shall reimburse Buyer for all expenses incurred by Buyer as a result of improper packing, marking, routing, or shipping. Seller shall advise Buyer with regard to packing, marking, routing and shipping that will enable Buyer to secure the most economical transportation rates.
Seller shall not charge separately for packing, marking and shipping, including materials used therein unless Buyer specifies in writing that Buyer separately will reimburse Seller for such charges. Seller will advise Buyer of Seller’s packing and shipping plans. Buyer may require shipment of any of the Goods by a more expeditious method of transportation in the event of Seller’s failure to meet the shipping requirements of the purchase order or shipping releases issue hereunder for which Seller shall bear the cost difference of such transportation unless such failure is due to an excusable delay as provided herein. Seller shall be responsible for any loss, damage or injury which results from or occurs during shipment of goods F.O.B. Seller’s facility.
8. PACKING SLIP AND BILLS OF LADING – Seller shall obtain a bill of lading from the transportation carrier of the Goods and shall include on each packing slip and bill of lading, the number of this purchase order and the location of the destination facility. Seller shall include a numbered master packing slip with each shipment. Seller shall retain the original bill of lading for three (3) years from the date of shipment unless otherwise directed by Buyer.
9. WARRANTY AND QUALITY – Seller warrants and represents that the Goods shall conform in all respects to Buyer’s drawings, specifications, statements of work, government requirements and shall be free from defects in design, materials, workmanship and suitable for their intended use by the Buyer. The warranty term for the Goods shall be one (1) year or the manufacturer’s standard warranty period, whichever period is longer. Seller’s warranty term for alternators is two (2) years. Buyer is not required to inspect the Goods prior to their use. The Seller waives any right to require the Buyer to conduct an inspection.
The Buyer is entitled to reject nonconforming Goods or retain them and either repair them itself or request the Seller to do so, on or offsite. In any event the Seller will bear the risk and expense of the remedial action undertaken by the Buyer or the Seller. The Seller is liable for all direct, incidental and consequential damages, losses, cost, and expenses incurred by the Buyer resulting from the failure of the Seller to deliver conforming Goods or to comply with the shipping and delivery of other requirements of the Buyer, even if Seller has cured the failure.
The Seller shall, at its expense, comply with the quality assurance processes, inspections and standards specified by the Buyer for the Goods. Seller will actively promote continuous quality improvement in manufacture, production and distribution of the Goods.
10. PROPRIETARY RIGHTS – (a) Seller at its expense will investigate and defend or otherwise handle, or at Buyer’s option, provide all reasonable assistance to Buyer in Buyer’s investigation, defense or handling of every claim that may be brought against Buyer or against those selling or using the Goods, for any alleged infringement of any present or future patent, copyright, industrial design right or other proprietary right based on the sale or use of the Goods hereof (i) alone, (ii) in combination by reason of their content, design or structure, or (iii) in combination in accordance with Seller’s recommendations.
Seller’s obligation shall apply even though Buyer furnishes all or any portions of the design and specifics all or any portion of the processing, Seller will pay all expenses and damages that Buyer and those using or selling the Goods may sustain by reason of each such claim. Seller grants to Buyer and its Associate Companies a nonexclusive, royalty free, irrevocable license to rebuild and have rebuilt the Goods purchased by Buyer. Seller will neither assert nor transfer to another right to assert against Buyer and/or its affiliates, or dealers or customers thereof, any copyright of Seller that is applicable to any works of authorship furnished to Buyer or any of Buyer’s related companies in the course of Seller’s activity hereunder.
All technical information disclosed heretofore and hereafter by Seller to Buyer in connection with these Goods is disclosed on the non-confidential basis.
11. ASSIGNMENT – Seller shall not assign or delegate any of its duties herein without Buyer’s prior written approval.
12. SUBSTANCE AND MATERIALS REPORTING AND COMPLIANCE – Upon the request of the Buyer the Seller will provide it with access to and copies of any data, materials or other information, including any formulas or analyses, that: (1) Relates to the Goods, their composition, any component or part of the Goods, or any materials or substances used in the Goods or in connection with their production; and (2) Is needed, as determined by the requestor, to enable compliance with any requirement of a Government (either mandated or voluntarily agreed upon by the Buyer) relating to the hazardous, toxic or other content or nature of the Goods, or the ability to recycle the Goods or any component, part or materials in the Goods.
The Seller will comply with the Buyer’s requirements relating to the use (or prohibition on use) of certain materials and substances in the Goods, and utilize and comply with the Buyer’s reporting processes and requirements relating to any data, materials or other information (such as the International Material Data System (IMDS) and the Responsible Minerals Initiative (RMI) (formerly known as Conflict Minerals Declaration)).
13. COMPLIANCE WITH LAWS –Seller shall comply with all local, state and federal laws, rules and regulations.. Goods must conform to all United States government safety and environmental regulations. The Seller will comply with all United States requirements that may apply to the design, production, sale, or distribution of the Goods.
14. EXCUSABLE DELAYS – Neither the Buyer nor the Seller will be liable for a delay or failure to perform directly due to an Excusable Event. An Excusable Event is a cause or event beyond the reasonable control of a party that is not attributable to its fault or negligence. Excusable Events include, but are not limited to, pandemics, fire, flood, earthquake, and other extreme natural events, acts of God, riots, civil disorders, labor problems (including strikes, lockouts, and slowdowns regardless of their lawfulness), and war or acts of terrorism whether or not declared as such by a Government.
In the event of a delay in performance, Buyer at its option may acquire possession of all finished good, work in process, Buyer owned equipment/tooling used to produce work in process, and materials produced or acquired for the work hereof, and Seller shall deliver such Goods to Buyer, at Buyer’s option F.O.B. Seller’s plant or freight collect to a location designated by Buyer.
15. SALES, USE AND FEDERAL EXCISE TAXES – Unless otherwise specified, Seller shall not include in its price nor otherwise charge to Buyer U.S. excise taxes, state or local sales tax, or use taxes on the Goods. Buyer will use the supplies for resale or in industrial processing or manufacturing.
16. SETOFF – The Buyer will administer, on a Net Settlement Basis, all of the accounts of the Seller arising from the purchase orders and other agreements the Seller has with the Buyer. “Net Settlement Basis” means, that unless prohibited by law the Buyer may set off and recoup against the Buyer’s accounts payable to the Seller any amounts for which the Buyer determines in good faith the Seller is liable to it under any purchase order or other agreements with the Seller. The Buyer may do so without notice to the Seller.
17. Basis of Debit – Buyer will be presumed to have acted in good faith if it has a commercially reasonable basis for believing that the Seller or one of its related companies is liable for the amount of debit. A debit may include the actual professional fees and all other administrative costs incurred by the Buyer or any associated company.
18. GOVERNING LAW – These terms shall be governed and construed under the laws of the State of Nevada. Venue for any and all actions shall be in the state or federal courts located in Clark County, Nevada.
19. DISPUTE RESOLUTION – In the event the event of disagreement with respect to any provision of these terms between Buyer and Seller or any other controversy, claim or breach herof, the management of each party shall meet in good faith, as quickly as reasonably possible, to reach an amicable resolution.
If such efforts are unsuccessful within thirty (30) days after commencement of management discussions, then any controversy, dispute or claim (regardless of legal theory) arising out of or relating to these terms or the relationship between Buyer and Seller, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules (the “Rules”) in Clark County, Nevada. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
20. SERVICE PARTS – If requested by Buyer, the Seller will supply the service/component parts to Buyer (or its customer(s)) to meet their current model year and past model year/s needs. Prices for such parts will be no greater than the price specified in the production purchase order for the Goods used in production plus the actual net cost differential for required unique packaging, shipping and handling.
If requested by Buyer, the Seller will supply past model year/s service/component parts for at least fifteen (15) years following the end of the production of the current model year for the Goods. If Buyer or its customer have a legal obligation to make the service/component parts available for a longer period, Buyer will advise the Seller. The Seller, unless otherwise notified, shall maintain the equipment used to produce the Goods or a simile thereof, in order to sustain service part requirements for the specified period.
21. LIMITATION OF BUYER’S LIABILITY – BUYER’S ENTIRE LIABILITY TO SELLER OR ANY THIRD PARTY, IF ANY, FOR ANY CLAIMS, DEMANDS, CAUSES OF ACTION, ARISING IN TORT, CONTRACT, OR OTHERWISE, INCLUDING WITH RESPECT TO ANY STATUTORY CLAIM, IS LIMITED SOLELY TO THE PRICE ACTUALLY PAID BY BUYER DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO SUCH CLAIM. BUYER SHALL NOT BE LIABLE TO SELLER FOR SPECIAL, INDIRECT, ECONOMIC, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING UNDER THESE TERMS, OR OTHERWISE, WITH RESPECT TO THE SALE, PURCHASE, OR USE OF THE GOODS, INCLUDING ANY LOST REVENUE OR PROFITS, BUSINESS INTERRUPTION OR DAMAGE TO BUSINESS REPUTATION, REGARDLESS OF THE THEORY UPON WHICH ANY CLAIM MAY BE BASED, INCLUDING, WITHOUT LIMITATION, TORT, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, PRODUCT LIABILITY OR ANY STATUTORY CAUSE OF ACTION.
22. CONFIDENTIALITY – A properly signed and fully executed Non-Disclosure Agreement (NDA) must be on file unless otherwise agreed upon for RFQ issuance and ongoing supply. Upon acceptance of the NDA, a signed confirmation must be scanned and sent to Buyer via email. The confidentiality terms of such NDA are by this reference incorporated herein.