1. AGREEMENT. This agreement is the Purchaser’s offer and Seller’s acceptance to purchase the good and/or services described on the face hereof. The terms and conditions stated in the Agreement expressly limit the Acceptance of the Purchaser’s offer. Additional or inconsistent terms contained in any form are rejected and shall not become part of this Agreement unless embodied in writing signed by the Seller. The terms of any purchase order referred to here are incorporated in and made a part of this Agreement only to the extent of specifying the price, the nature and description of goods or services ordered, the terms as to payment, and time of delivery, and then only to the extent that such items are consistent with the terms and conditions stated on both side of this Agreement.
2. PRICES, PAYMENT & SET-OFF. The Seller may adjust prices up until the time of shipment. Terms are net 30 days from the date of the invoice unless otherwise specified by the Seller. The Seller may decline to deliver the goods or services except for cash on demand (C.O.D.) or stop goods in transit whenever the Purchaser fails to make timely payment or for any reason if the Seller has doubts as to the Purchaser’s financial stability. Such rights are extended to the Seller and any of its affiliates with respect to the Purchaser or its affiliates. Pro-rata payments shall become due with respect to any shipments. The Purchaser shall not be entitled at any time to set-off any time by the Seller or any of its affiliate companies against any amount payable to the Seller at any time by the Purchaser.
3. TAXES. The Purchaser will be responsible for all charges, assessments or taxes, including but not limited to local, state, federal or foreign taxes incurred as a result of the execution of this Agreement or the consummation of transactions required here in unless separately stated on this Agreement. Upon occasion the Seller may bill any tax expense as a separate item.
4. INSPECTION, RIGHT OF REJECTION & ACCEPTANCE. The Seller shall pre-approve in writing all final inspection methods (by sample or other means) to be used by the Purchaser. Inspection of products by the Purchaser at the Seller’s plant will be permitted only in so far as it does not unduly interfere with the Seller’s production schedules and on condition that the Purchaser submits in advance complete details of the inspection it desires and the Seller grants inspection. Rejection notice must be served upon the Seller within five (5) business days after such goods have been delivered. The Purchaser may not return any goods delivered without the Seller’s prior written consent. The Purchaser agrees to cooperate with the Seller and strictly follow the Seller’s instructions as to non-conforming goods. Further. the Seller reserves the right to scrap, replace or repair the non-conforming goods, the Seller (only upon prior written consent) may accept a back charge (in the form of a credit to the Purchaser’s account) for the Purchaser’s repair of the goods. Any and all back charge amount(s) (including the actual price, time and work to be performed) must be mutually agreed upon in writing prior the commencement of any repair. The Seller shall be credited for any machining and shall be deemed to have been made no later than five (5) business days after such goods and/or services have been delivered to the Purchaser (or at its discretion).
5. RISK OF LOSS, TITTLE. Unless otherwise mutually agreed upon in writing, all sales shall be F.O.B. the Seller’s shipping point of origin. The Purchaser is responsible for securing proof of delivery from its carrier. Any claims for loss or damage in transit must be entered and prosecuted by the Purchaser. Title for goods covered by this order shall pass to the Purchaser upon delivery to carrier. The Seller warrants that Title to all goods and/or services transferred here under shall be free and clear of all lines, claims, security interests or other encumbrances.
6. CANCELATIONS, CHANGES. The Purchaser must put in writing any and all cancellations or changes and such are subject to the Seller’s consent. However, in no case shall the Purchaser be relieved of its payment obligations for goods or services in process.
7. PACKING AND SHIPMENT. Unless the Purchaser specifies otherwise in writing, products will be packed as the Seller may deem proper for protection against normal handling, and extra charge will be made for preservation, waterproofing, and similar added protection of goods.
8. TOOLS AND EQUIPMENT. All patters, tools, equipment or material, if any, furnished the Seller by the Purchaser shall be adequate and in good working order and will be sorted by the Seller with reasonable care without liability for their loss caused by theft, fire, flood, acts of God, or other causes beyond its reasonable control. The Seller shall not be required to insure said patters and tools. The Purchaser shall be responsible for all maintenance and repair costs.
9. CONFIDENTIAL INFORMATION. The Purchaser shall not use or disclose to any person, firm, corporation, association or other third part any materials, information or knowledge the Seller or its employees may have, at the Seller’s option, disclose to the Purchaser concerning the Seller’s proprietary and confidential information including but not limited to product, methods or manufacturing processes, or other information communicated to the Purchaser as proprietary and confidential, unless the Purchaser is authorized to do so in writing by an officer of the Seller. The Purchaser ensures that each of its employees who are involved in the performance of the Purchaser’s obligations under this Agreement will abide by the non-use and confidentially obligations as set forth in this paragraph.
10. TERMINATION. The Seller may terminate this Agreement in whole or in part at any time upon the Seller’s written notice to the Purchaser (a) for any reason in the Seller’s sole discretion, (b) for any default by the Purchaser involving (i) the Purchaser’s failure to pay for goods or services within the time specified by this Agreement or (ii) in the event the Purchaser is insolvent, files for, or is adjudicated bankrupt. The Seller does not waive any legal or equitable remedies it may have against the Purchaser because of the exercise of such right to terminate. On termination by the Seller, the Seller shall stop work here under and the placement of subcontracts, terminate work under subcontracts outstanding hereunder, and take any necessary action to protect property in the Seller’s possessions in which the Purchaser has or may acquire an interest. The Seller shall use reasonable effort to diligently secure other purchaser(s) for all goods or services. In the event of a termination, the Purchaser shall immediately pay for all goods and/or services already provided and shall reimburse the Seller for expenses incurred in the production of goods or services as at the date of the Seller’s termination.
11. FORCE MAJEURE. In event of the occurrence of war, invasion, fire, explosion, riot, strikes, work stoppage, acts of God, delays of carriers, energy shortage, shortages or failure in the supply of materials from third party suppliers, acts of government or governmental agencies or instrumentalities, or other contingences or causes beyond the control of the Seller, such performance shall be suspended as a result of such contingencies or causes for a period of sixty (60) days or longer. The Seller shall have the right to cancel this Agreement upon written notice to the Purchaser to that effect at any time thereafter, in no case shall the Purchaser’s obligation to pay for goods or services already provided be terminated.
12. INDEMNIFICATION. With respect to articles manufactured by the Seller in accordance with the Purchaser’s (or its customer’s) designs, blueprints, drawings, specifications, patterns, tooling or equipment, the Purchaser shall defend, indemnify and hold the Seller, its subsidiaries, affiliates, agents, employees and customers harmless against any and all liability, damage, loss, cost or expenses, including, but not limited to those arising from or based upon (i) intellectual property disputes, or (ii) error, omission or negligent act by the Purchaser in the completion of such designs, blueprints, drawings, samples or specifications. The Purchaser further agrees to indemnify the Seller for any error, omission or negligent act of the Purchaser with regard to the misuse, misapplication or incorrect installation of any product sold to the Purchaser by the Seller.
13. WARRANTIES. The Seller warrants that the goods (except those units and accessories manufactured or designed by others or free issued by the Purchaser) shall be free from defects in material and workmanship under normal used and service. Unless otherwise expressly stated herein, The Seller’s warranty expires twelve (12) months from original date of shipment. The Seller’s instructions and warnings supplied in connection with, or affixed to, equipment relating to the proper operation, use or maintenance thereof are consistent with the Seller’s warranty and are incorporated herein by reference as a part of and a condition of this Agreement. This warranty shall not apply to any goods or equipment which are based upon the Purchaser’s (or its customer’s) design, pattern or tooling and/or, in the Seller’s judgment, have been repaired or altered in any way so as to affect their reliability, nor to any equipment which has been subject to misuse, abuse and negligent handling or accident, improper application in regard to size and loading, use in excess of product’s capabilities or of the Seller’s specifications or industry ratings of lack of periodic inspections.The Sellers obligation under this warranty shall be limited exclusively to furnishing or repairing goods, equipment or parts (whichever the case) in replacement for those items manufacturing by the Seller and determined to be defective on inspections by an authorized representative of the Seller and which are returned to the Seller. In any case if the Seller agrees to replace or repair a defective part, the Purchaser shall be responsible and bear the cost of procuring and providing all necessary dismantling, reassembling, handling and transporting costs to return the goods. The determination by the Seller’s representative shall be final and control. If in any case, the Seller’s authorized representative determines that the nature of defect precludes remedy by repair or replacement of parts, the Seller reserves the right to satisfy its warranty obligation in full by refunding the purchase price upon return to the Seller of such defective products. In no event shall the Seller’s liability under this warranty exceed the purchase price paid. The Seller shall have no liability whatsoever in any event for incidental or consequential damages whether such damages are alleged to have arisen or resulting from breach of warranty, strict liability in tort or warranty contract or negligence, including, but not limited to damages, losses, loss of profits or expenses of the Purchaser arising from personal injury or from the operation of, compliance with, or enforcement of any Federal State or local law, code or regulation. Any action for breach of warranty or other action under this Agreement must be commenced by the Purchaser within one year after such time the cause of action arises.
NOTWITHSTANDING ANY PROVISION TO THE CONTRARY, THE WARRANTY STATED HERIN IS IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES ARISING FROM TRADE USAGE OR COURSE OF DEALING. THE WARRANTY IS LIMITED AND ONLY EXTENDS TO THE PURCHASER NOT TO ANY SUCCESSORS, OTHER PURCHASERS, USER OR THIRD PARTIES.
14. MISCELLANEOUS PROVISIONS.
A) This agreement shall not constitute the Seller as the agent, partner or legal representative of the Purchaser. B) The terms and conditions stated in this Agreement shall be construed in accordance with the internal laws (as opposed to conflicts of law provisions) of the State of Jalisco, Mexico. The Purchaser consents to the exclusive jurisdiction of the courts of Guadalajara, Jalisco, Mexico.
C) The Seller may assign, delegate or subcontract all or any part of this order without the prior written approval of the Purchaser
D) The terms and conditions stated on the front and back side of this order constitutes the entire Agreement between the Seller and the Purchaser regarding the furnishing of goods or services specified herein and shall not be modified except by way of writing, signed by authorized representatives of both parties.
E) All rights granted to the Seller under this Agreement shall be in addition to and not in lieu of the Seller’s rights arising by operation of law. Should any provision of this Agreement be declared by a court of competent jurisdiction to be invalid, such decision shall not affected the validity of any of the remaining provisions.
F) Waiver by the Seller of breach by the Purchaser of any provisions of this Agreement shall not be deemed a waiver of future compliance therewith, and such provision, as well as other provisions hereunder shall remain in full force and effect.