PURCHASE ORDER GENERAL TERMS AND CONDITIONS
Unless specifically stated otherwise in the applicable purchase order, the below Terms and Conditions (the “Agreement”) shall apply to all purchases made by MicroRam from any seller (“Seller”) pursuant to a MicroRam issued purchase order that references or incorporates these terms and conditions.
1. Acceptance of Order Subject to this Agreement: Seller acknowledges that MicroRam’s purchase and acceptance of Seller’s product is subject to and expressly limited to the terms and conditions in this Agreement and in the applicable MicroRam issued purchase order (the “Purchase Order”) and all terms of purchase shall be governed exclusively by the provisions of this Agreement and the Purchase Order notwithstanding any preprinted terms and conditions on any order acceptance, invoice, packing list or order tracking document issued by Seller. Any additional, conflicting or different terms in any Seller document are hereby deemed to be material modifications of this Agreement and notice of objection to and rejection of such terms is hereby given.
2. Delivery of Product: Seller is responsible for ensuring shipments of product are scheduled to arrive no later than the due date specified in the Purchase Order and Seller shall confirm the definite shipping date of the product to MicroRam in writing. MicroRam, in its sole discretion, and without liability to Seller, may reject any product received subsequent to the applicable due date. If the Purchase Order requires delivery in installments and Seller fails to deliver an installment on the designated due date, MicroRam, in its sole discretion, and without liability to Seller may terminate the Purchase Order and refuse to accept subsequent installments.
3. Product Documentation: Packing slips, with correct Purchase Order number referenced, shall accompany all shipments. Shipments shall be routed via carrier notes. Seller shall ensure that all items are correctly classified on the bill of lading to obtain minimum freight rates. A packing list and Certificate of Conformance must accompany each shipment, unless otherwise agreed to in writing by both parties. Seller’s name must be shown on the packing list in addition to Buyer’s Purchase Order number, part number, lot number and date code (if applicable), quantity of goods shipped and date of shipment.
4. Authenticity, Traceability and Inspection of Product: Seller shall take reasonable and prudent measures in accordance with established industry standards and best practices to detect and avoid the supply of counterfeit parts to Buyer. To the extent available to Seller, traceability documentation (including any manufacturer’s CoC) shall be furnsihed to MicroRam. Parts are guaranteed to be new, unused and in original packaging and all date codes must match unless otherwise agreed to in writing by both parties. Acceptance of product received is subject to MicroRam’s inspection, testing and approval notwithstanding any advance payment MicroRam may have made for such product. No substitutions or modification of the product ordered shall be permitted without MicroRam’s prior written approval. Refurbished, reconditioned, repaired, used, or modified product is unacceptable and will be rejected. MicroRam reserves the right to independently test the product. If Seller becomes aware or suspects that a part it has furnished to MicroRam is a suspect/counterfeit, Seller shall immediately notify MicroRam, which may impound such parts. In the event the product is suspected of being counterfeit, MicroRam may provide the product and Seller’s information to any government and non-governmental agencies as MicroRam deems appropriate. Seller shall be liable for all costs related to impoundment, replacement, investigation and damages resulting from the use or non-use of the suspected counterfeit product. Product rejected by MicroRam as non-conforming may be returned to Seller, at Seller’s risk and expense, and Seller shall immediately, at MicroRam’s sole discretion, either: (i) replace the product with conforming product; (ii) refund all payments made by MicroRam with regard to the product; or (iii) issue a credit to MicroRam in the amount of all payments made for the product. MicroRam may condition return of any suspect/counterfeit part to Seller upon MicroRam’s acceptance of Seller’s proposed plan of disposition.
5. Risk of Loss and Compliance with Applicable Laws: Title and risk of loss with regard to any product shipped by Seller shall not pass to MicroRam until such product has been delivered to and accepted by MicroRam. Seller is responsible for ensuring shipment of the product complies with all applicable international, federal, state, county, municipal or other laws and regulations. MicroRam shall not be responsible or liable for any discharge, spill, damage, or other incident involving any product prior to MicroRam’s receipt and acceptance of such product. Seller shall indemnify and save harmless MicroRam for and from any and all liabilities, expenses, costs, and damages which MicroRam may incur or suffer as a result of Seller’s failure or omission to comply with applicable laws and regulations.
6. Seller’s Warranty: Seller hereby makes the following warranties and representations to MicroRam, and MicroRam’s affiliates and customers with regard to all product furnished pursuant to the Purchase Order.
(i) Seller has good and valid title to the product and the product is free from any liens, encumbrances or claims of any third parties;
(ii) The product does not infringe or violate any third party’s intellectual property rights or other ownership rights;
(iii) The product is genuine, new, not previously used, unpulled, un-programmed, solderable, without bent or formed leads, test dot or other third party markings, and the product is contained in the original manufacturer’s packaging, marked with part number(s) as specified on the Purchase Order, and is of the grade and quality specified in the Purchase Order;
(iv) The markings on the product including the lot and date codes are original as made by the manufacturer, unaltered or changed, and the product complies with all other requirements specified in the Purchase Order;
(v) The product shall be merchantable, is free from defects in workmanship and material, conforms to all samples, descriptions, and specifications furnished or published by Seller and/or the product’s manufacturer, and to any other agreed-to specifications, including, without limitation, compliance with substance prohibitions and restrictions set out in EU Directive 2002/95/EC, Restriction on Hazardous Substances (RoHS) and any other related, implementing laws, rules, regulations, standards and restrictions within the European Community or other countries.
(vi) The product will function as intended in accordance with the product’s manufacturer’s specifications for at least one (1) year from MicroRam’s receipt and acceptance of the Product (the “Warranty Period”). Notwithstanding the foregoing, in the event Seller’s or the product’s manufacturer’s warranty provides greater warranty protection than provided for in this Section 6(vi), then such warranty shall continue to be in effect.
If Seller breaches any of the foregoing warranties and/or the product fails to function as intended in accordance with the manufacturer’s specifications during the Warranty Period, Seller shall, at MicroRam’s sole discretion either: (i) replace the product with conforming product; (ii) refund all payments made by MicroRam with regard to the product; or (iii) issue a credit to MicroRam in the amount of all payments made for the product; provided, however, such actions by Seller shall not negate or limit Seller’s indemnification obligations set out in this Agreement and MicroRam’s rights and remedies herein are in addition to any other rights and remedies provided by law or in equity.
7. Indemnification: Seller agrees to indemnify, defend and hold harmless MicroRam and its officers, directors, employees, representatives, agents, and customers and their respective successors and assigns, from, against and in respect of, any claims, actions, liability, loss, cost, damage, expense, penalty, fine, or payment, including reasonable attorneys’ fees and expenses, incurred or suffered with respect to any and all claims, controversies, legal actions and proceedings arising from: (i) any breach of this Agreement and/or the terms of the Purchase Order by Seller; (ii) any personal injury or property damage caused by the product; (iii) any claim or allegation that the product violates any applicable law or regulation; (iv) any claim or allegation that the product infringes on the intellectual property rights, or any other rights, of a third party.
8. Confidentiality: Seller acknowledges and agrees that the Purchase Order constitutes and contains proprietary and confidential information of MicroRam and, in the course of fulfilling the Purchase Order, Seller may have access to other information concerning pricing, designs, customers, vendors, marketing materials, research, and other information concerning MicroRam’s business (collectively the “Confidential Information”). Seller agrees to maintain the confidentially of all Confidential Information that Seller receives and not use such Confidential Information for any purpose other than for performing Seller’s obligations pursuant to the Purchase Order.
9. Termination: Execept as may be otherwise agreed to the parties in writing, MicroRam may terminate the Purchase Order at any time for any reason prior to the delivery and acceptance of the product by MicroRam without any liability (including any liability for cancellation or restocking fees) to Seller. In the event that the Purchase Order contemplates multiple shipments of product, MicroRam may terminate the unfulfilled portion of the Purchase Order at any time for any reason prior to the delivery and acceptance of the final shipment of product by MicroRam without any liability (including any liability for cancellation or restocking fees) to Seller.
10. Limitation of Liability: MicroRam’s entire liability to Seller for any damages or claims arising from or related to the Purchase Order or MicroRam’s receipt of product from the Seller shall be limited to the actual purchase price of the product specified in the Purchase Order. In no event shall MicroRam be liable to Seller for any special, punitive, incidental, indirect, or consequential damages.
11. Choice of Law: The laws of the State of Florida (without giving effect to its conflict of law principles) shall govern all matters arising out of or relating to this Agreement and/or the Purchase Order including, without limitation, the validity, interpretation, construction, performance and enforcement of this Agreement. The provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement or the Purchase Order.
12. Designation of Forum: Any legal action or proceeding arising out of or relating to this Agreement and/or the Purchase Order shall be brought in either the United States District Court for the Middle District of Florida or in any court of the State of Florida sitting in Hillsborough County, Florida (the “Designated Courts”). Seller consents to the exclusive personal jurisdiction of the Designated Courts for the purpose of all legal actions and proceedings arising out of or relating to this Agreement and/or the Purchase Order. Seller further agrees that the exclusive choice of forum set forth in this Section does not prohibit the enforcement of any judgment obtained in the Designated Courts or any other appropriate forum. In any litigation to enforce a party’s obligations or rights under this Agreement and/or the Purchase Order, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs incurred in such litigation and any appeals.
13. Amendment: The parties may not amend this Agreement or the Purchase Order orally. This Agreement and/or the Purchase Order may only by amended by a written agreement signed by MicroRam.
14. No Waiver: No waiver of any provision of this Agreement, and no consent to any departure by MicroRam from the terms and conditions of this Agreement, shall be effective unless such waiver or consent is given in writing by MicroRam (in which case the waiver or consent shall be effective only in the specific instance, and only for the specific purpose, for which it was given). No failure or delay by MicroRam in exercising any right or remedy, or requiring the satisfaction of any condition under this Agreement, and no course of dealing between the parties, shall operate as a waiver or estoppel of any right or remedy of MicroRam hereunder, or limit or prevent the subsequent enforcement of any provision of this Agreement by MicroRam.
15. Integration: This Agreement and the Purchase Order constitute the final agreement between the parties. It is the complete and exclusive expression of the parties’ agreement on the matters contained in this Agreement and in the Purchase Order. All prior and contemporaneous negotiations and agreements between the parties on the matters contained in this Agreement and the Purchase Order are expressly merged into and superseded by this Agreement and the Purchase Order. The provisions of this Agreement may not be explained, supplemented, or qualified through evidence of trade usage or a prior course of dealings.
16. Severability: If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall remain in full force.
17. Assignment: Seller may not assign any of its rights, or delegate any of its duties, under this Agreement or the Purchase Order. This Agreement shall inure to the benefit of the successors and assignees of MicroRam.
18. Updated Version: MicroRam may update the terms of this Agreement at any time. Such updates will be effective upon MicroRam posting the Agreement containing the updated terms on its website. Seller’s and MicroRam’s obligations and rights with regard to any Purchase Order shall be governed by the version of the Agreement that is posted on MicroRam’s website at the time the last party to the Purchase Order executes the Purchase Order.
19. Retention of Records: Unless a longer period is specified in this Order or by law or regulation, Seller shall retain all records related to this Contract for seven (7) years from the date of final payment received by Seller. Records related to this Order include, but are not limited to, financial, proposal, procurement, specifications, production, inspection, test, quality, shipping and export, and certification records. At no additional cost, Seller shall timely provide access to such records in the U.S. Government and/or Buyer upon request.
EXTERNAL PROVIDER / SUPPLIER FLOW DOWN REQUIREMENTS AS APPLICABLE
MicroRam shall ensure the adequacy of requirements prior to their communication to the external provider.
Microram shall communicate to external providers its requirements for:
A. The processes, products, and services to be provided including the identification of relevant technical data (e.g., specifications, drawings, process requirements, work instructions);
B. The approval of:
1. Products and services;
2. Methods, processes and services;
3. The release of products and services;
C. Competence, including any required qualifications of persons;
D. The external providers’ interactions with the organization;
E. Control and monitoring of the external providers’ performance to be applied by the organization;
F. Verification or validation activities that the organization, or its customer, intends to perform at the external providers’ premises;
G. Test, inspection, and verification (including production process validation);
H. The use of statistical techniques for product acceptance and related instructions for acceptance by the organization;
I. The need to:
1. Implement a quality management system;
2. Use customer-designated or approved external providers, including process sources (e.g., special processes)
3. Notify the organization of nonconforming processes, products, or services and obtain approval for their disposition;
4. Prevent the use of suspect unapproved, unapproved and counterfeit parts;
5. Notify the organization of changes to processes, products, or services, including changes of their external providers or location of manufacture, and obtain the organization’s approval;
6. Flow down to external providers applicable requirements including customer requirements;
7. Provide test specimens for design approval, inspection/verification, investigation, or auditing;
8. Retain documented information, including retention periods and disposition requirements;
J. The right of access by the organization, their customer, and regulatory authorities to the applicable areas of facilities and to applicable documented information, at any level of the supply chain;
K. Ensuring that persons are aware of:
1. Their contribution to product or service conformity;
2. Their contribution to product safety;
3. The importance of ethical behavior.