THIS ORDER CONSTITUTES AN OFFER BY NPI SERVICES, INC. (NPI) TO PURCHASE FROM SELLER THE ITEMS AND/OR SERVICES SPECIFIED IN THIS ORDER, SUBJECT TO THE TERMS AND CONDITIONS HEREOF. THIS ORDER IN NOT INTENDED AND SHALL NOT OPERATE AS (l) AN ACCEPTANCE OF ANY PRICE QUOTATION OR OTHER ORAL OR WRITTEN OFFER BY SELLER, OR (2) A CONFIRMATION OF ANY PREVIOUS COMMUNICATION OR AGREEMENT, WHETHER ORAL OR WRITTEN, BETWEEN THE PARTIES HERETO.
1. Acceptance. Seller’s acceptance of this order will be indicated by: (a) shipment of any part of this order, or the furnishing of services required; (b) signing and returning the acknowledgment copy of this order; or (c) any other act or expression of acceptance. Prior to acceptance hereof, this order shall remain revocable in whole or in part by NPI for any reason whatsoever. Acceptance of this order is expressly limited to the terms and conditions contained herein, and any term, condition, quotation or proposal hereafter submitted by Seller that is inconsistent with or in addition to the terms and conditions proposed herein is objected to and is hereby rejected.
2. Entire Agreement. This order, including any pertinent drawings, specifications, or the like, shall upon acceptance by Seller constitute the final, complete, and exclusive agreement between the parties hereto and shall supersede all prior offers, negotiations, and agreements relating to the subject matter hereof. It is expressly agreed that no prior or contemporaneous agreement or understanding, whether written or oral, shall contradict, modify, supplement, or explain the terms and conditions contained herein.
3. Shipment. Unless otherwise specified, Seller shall package all items to be delivered hereunder at no additional charge to (a) assure safe arrival at their ultimate destination; (b) permit efficient handling and secure the lowest transportation costs; (c) comply with all applicable Interstate Commerce Commission regulations. Damage to any items resulting from improper packaging will be charged to Seller; and (d) each shipment shall be accompanied by a legible and reproducible, Certificate of Conformance. The C of C may be incorporated into the packing slip. As a minimum, the following information shall be included: NPI purchase order number, purchased part number and authorized signature.
4. Delivery. Seller’s deliveries are to be made both in the quantities and at the time specified in this order or a contractual modification hereof. Time is agreed to be of the essence. If Seller has reason to believe that deliveries will not be made as specified, written notice concerning the cause of delay and estimated delivery date shall immediately be given to NPI. If delivery is not made at the required time, NPI reserves the right to cancel this order, purchase elsewhere, and hold Seller accountable for any damages. If NPI believes that Seller will not meet the specified delivery schedule or if Seller fails to meet the schedule, Seller shall, at NPI’s request, ship via expedited routing at Seller’s sole cost.
5. Advance Manufacture and Shipment. Without NPI’s prior written consent, Seller shall not manufacture items for this order in advance of Seller’s normal lead time for delivery in accordance with the delivery schedule established herein. NPI will not be responsible for materials delivered or work performed on NPI’s behalf without a written order. If any item is received by NPI in advance of the delivery schedule, NPI may, at its option, either retain such items or return them to Seller at Seller’s risk and expense. If retained, the time for payment and any discount shall be based on scheduled delivery dates.
6. Payment. Unless otherwise expressly stated on the reverse side hereof, the prices set forth in this order include all charges for packaging and transportation to the FOB point. Invoices in duplicate shall be mailed to NPI’s accounting department when items are shipped. The time for payment of Seller’s invoices shall commence on the later of (a) the date set by the delivery schedule herein for receipt of items or services purchased; (b) the date of actual receipt by NPI of items or services purchased; or (c) the date of receipt by NPI of a proper invoice for items or services purchased; provided, however, that such items or services fully comply with the requirements of this order. Any payments made by NPI for part or all of the items or services ordered are advances subject to return in the event of rejection of the item or service by NPI. Any adjustments in Seller’s invoices due to shortage, late delivery, rejection, or other failure to comply with the requirements of this order may be made by NPI before payment. NPI may withhold funds otherwise due to Seller hereunder if Seller is in default of any of the terms and conditions contained herein so long as such default exists.
7. Inspection and Acceptance. Unless otherwise specified on the face hereof, all items or services ordered are subject to inspection and test by NPI prior to shipment at Seller’s plant and at all other times and places where practical, and are subject to final inspection and acceptance at NPI’s plant or other destination point designated by NPI notwithstanding any prior payment or prior inspection. If any inspection or test is made on Seller’s premises, Seller, without additional charge, shall (a) provide all reasonable facilities and assistance for the safety and convenience of NPI and its designated inspectors; (b) make available to the inspectors copies of all drawings, specifications and processes applicable to the items ordered; and (c) promptly furnish NPI with any and all resulting inspection certificates. Acceptance by NPI of any goods or services shall occur only when NPI notifies Seller that such goods or services conform to the requirements of this order. Inspection or test of, or payment for any goods or services shall not constitute an acceptance thereof.
8. Warranties. Seller warrants that all items, articles, materials and services supplied by Seller will strictly conform to the designs, specifications, drawings, samples or other descriptions furnished or adopted by NPI and will be merchantable, of good materials and workmanship, free from defects and fit for their intended use, and shall be free and clear of any and all liens. Seller assumes all risk that Seller will be able to comply with such designs, specification, drawings, samples or other descriptions or services covered by this order. Such warranties shall be effective for a period of one year after delivery or such longer period described by law or additional agreement. Such warranties, however, shall not be deemed to limit any express or implied warranties of additional scope given by Seller to NPI. All warranties, both express and implied, shall be construed as conditions as well as promises. Such warranties, together with all other warranties of Seller, shall run in favor of NPI, its successors, assigns, customers and users. Corrected or replacement items shall be subject to the provisions of this paragraph in the manner and to the same extent as items originally delivered under this order. Acceptance of any items or services by NPI shall not be deemed to alter or affect the obligations of Seller or the rights of NPI, its successors, assigns or customers, under Seller’s warranties, or to waive any such rights with respect to any latent defects. Seller agrees to indemnify and hold harmless NPI, its successors, assigns and customers against and in respect of all claims, actions, demands, losses, cost, expenses, liabilities, and damages resulting from any breach of any of the foregoing warranties or any other warranties, express or implied.
9. Risk of Loss. Notwithstanding any agreement to pay freight or other transportation charges, the risk of loss, deterioration or damage, as well as the obligation to insure, shall be borne by Seller until the goods have been delivered to NPI at the FOB point specified on the purchase order. Shipment and other costs of all items returned to Seller for whatever reason shall be borne by Seller, with the risk of loss passing to Seller upon the earlier of (a) notice of rejection is given to Seller by NPI; or (b) the time that the items are delivered to a carrier for return to Seller.
10. Modifications. NPI shall have the right at any time before completion of this order to make changes in quantities, drawings, designs, specification, place or time of delivery, and method of shipment upon giving written notice to Seller of such changes. If, as a result of any such change, NPI shall claim a decrease or Seller shall claim an increase in the total purchase price of this order, or if Seller shall claim an extension of time for its performance hereunder, the party so claiming shall notify the other in writing of its claim for adjustment within thirty days after the change in this order, and Seller and NPI shall attempt to agree on an equitable adjustment. Where the cost of property made obsolete or excess as a result of a change is included in Seller’s claim for adjustment, such cost must be supported by inventory schedules and submitted within three months from the date of change. NPI may prescribe the manner of disposition of such obsolete or excess property. Seller shall immediately proceed with NPI’s change order and shall not withhold deliveries of any items of work pending such equitable adjustment. Seller shall notify NPI immediately, in writing, of any changes in product and/or process definition which might affect Seller’s ability to deliver according to the terms of this purchase order. When required, supplier shall obtain written approval of changes from NPI. NO CHANGE IN QUANTITIES, PRICE OR DELIVERY DATES, SHALL BE BINDING UPON NPI UNLESS FIRST APPROVED IN WRITING BY AN AUTHORIZED REPRESENTATIVE OF NPI.
11. Taxes. Except as otherwise specifically provided herein, the prices set forth on the purchase order include all liability of NPI for payment or reimbursement of any and all taxes or similar charges now or hereafter imposed by any governmental authority in connection with this order. Any such liability not included in the prices set forth herein shall be paid or reimbursed by Seller.
12. Prices. Seller represents and warrants that the prices charged in this order and the terms hereof are no less favorable than the prices charged and terms thereof provided by Seller to other customers in transactions involving similar items in comparable quantities and delivery schedules.
13. Indemnity. Seller agrees to indemnify and hold harmless NPI, its successors, assigns and customers, against and in respect of all claims, actions, demands, losses, costs, expenses, liabilities and damages, including reasonable attorneys’ fees, resulting from (a) any actual or claimed trademark, trade name, patent or copyright, or other intellectual property infringement, or any litigation or proceeding based thereon, with respect to any of the items covered by this order, and (b) any act or omission of Seller, its employees, agents, or subcontractors.
14. Property Furnished by NPI. All designs, documents, drawings, plans, materials, tools, equipment, specifications, and other items and all information contained therein, furnished or specifically paid for by NPI, and all reproductions thereof, shall at all times (a) be the sole property of NPI and shall be clearly identified as such by Seller and segregated by Seller from property of Seller or Seller’s other customers; (b) be regarded and preserved as confidential and used by Seller only in the design, development or production of items or work called for herein and for no other purpose; (c) not be transmitted, reproduced, used or disclosed to any third party by Seller (except its own employees as may be necessary for the performance of this order) without prior written approval by NPI; and (d) be returned to NPI upon request or in any event no later than completion of this order, at Seller’s expense, in as good condition as when received by Seller, ordinary wear and tear excepted. Seller shall pay NPI the replacement cost of NPI’s property damaged while in Seller’s possession. Seller agrees to supply detailed statements of inventory with respect to such property when requested
by NPI. NPI does not warrant the accuracy of any information, designs, specifications, drawings, tools, equipment, or fixtures that it furnishes. All items of work required by this order must strictly conform with the specifications of this order.
15. Use by NPI. NPI, its successors, assigns and customers, may subject all items or services to further manufacture, may combine them with other articles or put the item to any use whatsoever, and no royalties or additional compensation shall be payable by NPI as a result. All unpatented or uncopyrighted ideas, information, designs, devices, prints, drawings and technical data concerning Seller’s products, methods or manufacturing processes shall be deemed to have been disclosed or furnished as part of the consideration of this order, and NPI shall be free to use and disclose the same without any liability or payment therefore.
16. Insurance. Seller will carry fire and extended coverage insurance against risk of damage to any NPI property in the possession of Seller. With respect to property of NPI that is in Seller’s possession or control, any insurance proceeds shall be payable directly to NPI.
17. Price Reductions. If, prior to the termination of this order, Seller makes a general price reduction, at stated quantities, of any of the products or services being purchased under this order, an equivalent price reduction shall apply to this order for similar quantities placed under this order and unshipped or unperformed at the time of such general price reduction. Such reduced prices shall apply for the duration of this order or until such prices are further reduced.
18. Confidentiality of Order. Seller acknowledges that NPI’s use of the items and/or services to be provided pursuant to this order and NPI’s use of Seller as a source for such items and/or services constitute important trade secret information of NPI and Seller agrees that it will not disclose to any third party (except to the extent that disclosure to employees of Seller is necessary for the performance of this order) the fact that Seller furnished or will furnish NPI with the items and/or services specified herein, unless Seller first obtains written consent thereto from NPI.
19. Demand for Reasonable Assurances. When reasonable grounds for insecurity arise with respect to Seller’s performance, NPI may in writing demand assurance of due performance, and NPI may suspend its obligations hereunder until such assurance is received. If Seller fails to provide such assurance within 15 days following receipt of such written demand, such failure shall constitute an anticipatory repudiation of this contract.
20. Remedies. NPI shall have the right to reject any items or services found to be defective in material or workmanship or otherwise not in compliance with the requirements of this order. NPI may, at its option and without affecting its rights to recover damages for Seller’s breach of contract, (a) hold any rejected items at Seller’s risk and expense pending receipt of Seller’s instructions regarding disposition of the items; (b) return any rejected items to Seller at Seller’s expense for credit at full invoice price; (c) retain and correct any rejected items with an appropriate reduction to be made in the purchase price to reflect such costs of correction; (d) resell any rejected items forthwith without awaiting instructions from Seller regarding the disposition of such goods; (e) require replacement or correction by Seller, if any goods fabricated by Seller from material furnished by NPI are rejected due to Seller’s fault or failure to meet the requirements of this order. Seller shall pay NPI the replacement cost of the material so furnished. All transportation charges on returned items shall be paid by Seller. In addition to the foregoing, in the event of a breach of any obligation hereunder by Seller, NPI shall have all rights and remedies provided by Division 2 of the California Uniform Commercial Code and all other remedies available at law or in equity. In the event of breach or any obligation hereunder by NPI, Seller shall have all rights and
remedies provided by Division 2 of the California Uniform Commercial Code unless modified by this order, except that the measure of Seller’s damages for NPI’s wrongful rejection by repudiation of terms shall be limited to the lesser of the difference between the market price at the time and place of delivery and the unpaid contract price, less expenses saved in consequence of NPI’s rejection, with due allowance for cost incurred and due credit for payments or proceeds of resale; or (f) Seller shall notify NPI immediately, in writing, of any nonconformance of the product to specifications set forth in the purchase order and accompanying documents. Seller shall receive, in writing and prior to delivery, approval from NPI to deliver any nonconforming product.
21. Prime or Other Contracts by NPI. It is expressly understood and agreed that (a) this order is issued for the purpose of enabling NPI to perform its prime or other contract or contracts, and (b) any default hereunder by Seller may cause a default by NPI in the performance of such contracts. Seller shall be liable to NPI for any and all damages or losses NPI suffers or incurs as a result of Seller’s default.
22. Compliance with Laws. All obligations hereunder shall be performed in accordance with all applicable laws, rules, regulations or orders, including without limitation, those relating to non-discrimination and equal opportunity in employment, workplace safety, and environmental protection. Seller agrees to indemnify and hold NPI harmless from any loss, damage, liability, claim, fine, penalty, or expense which directly or indirectly results from Seller’s failure to comply with any such law, rule, regulation, or order.
23. Assignment. Seller may not assign or otherwise transfer or cause to be transferred in whole or part any of its rights or obligations hereunder without the prior written approval of NPI. Seller shall not contract any portion of the work to be performed under this order without NPI’s prior written approval. Any such approval given shall not be deemed to waive or prejudice NPI’s rights to recovery or set-off of claims arising out of this or any other transaction and to settle or adjust matters with Seller without notice to any such assignee. Seller shall flow down all applicable purchase order requirements to sub-tier suppliers including any key data.
24. Termination. NPI may terminate work under this order in whole or in part at any time upon giving written notice thereof to Seller. Upon such termination by NPI, Seller shall stop work immediately, notify subcontractors to stop work, and protect any property in Seller’s possession in which NPI has or may acquire an interest. Except where such termination is occasioned by the occurrence of a contingency the non-occurrence of which is a basic assumption on which this contract is made, or by default or delay of Seller, Seller may claim reimbursement on forms which NPI will furnish on request for (a) Seller’s actual costs incurred up to and including the date of termination which are properly allocable under recognized accounting practices to the terminated portion of this order, including liabilities to permitted subcontractors previously billed or paid for, but excluding any charge for interest or any materials that Seller may be able to divert to other orders; and (b) reasonable profit on work actually done by Seller prior to such termination, the rate of which shall not exceed the rate used in establishing the original purchase price. The total amount of such reimbursement shall not exceed the purchase price for items covered hereby which are subject to such termination. Seller may terminate work under this order only if NPI consents thereto in writing or if such termination results from NPI’s material breach of this contract.
The occurrence of any contingency that might make Seller’s performance under this order impracticable or impossible, or the destruction of any items ordered herein, shall not relieve Seller of its obligations under this order.
25. Insolvency of Seller. If during the term of this contract, Seller shall become bankrupt, insolvent or makes an assignment for the benefits of creditors, this contract shall be deemed breached by Seller and NPI shall have the right to terminate this contract by serving written notice of termination. Such termination shall not affect any claim for damages available to NPI.
26. Allocations. In the event that Seller’s deliveries required hereunder are made impracticable in whole or in part by the occurrence of a contingency, the non-occurrence of which was a basic assumption on which this agreement is made, or by compliance in good faith with any applicable foreign or domestic governmental regulation or order (whether or not it later proves to be invalid), Seller will first meet all of NPI’s requirements hereunder prior to any allocation of deliveries among Seller’s customers. The occurrence or non-occurrence of such an event shall not affect NPI’s rights to terminate this order as provided herein.
27. Miscellaneous. No failure or delay by NPI in exercising any right, power or privilege hereunder shall operate as a waiver thereof, and no single or partial exercise thereof shall preclude any other exercise of any other right, power or privilege. NPI’s failure to object to any provision contained in any communication from Seller shall not be deemed an acceptance of such provision or a waiver of the provisions hereof. The laws of the state of California, U.S.A., except its rules regarding choice of law, shall govern the validity of this agreement, the construction of its terms and the interpretation of the rights and duties of the parties. NPI may at its option at any time apply any monies or indebtedness owed to Seller against indebtedness, actual or claimed, owed by Seller to NPI. If any one or more of the provisions contained in these Terms and Conditions shall for any reason be held to be invalid, illegal or unenforceable, the same shall not affect any other provisions herein, but these Terms and Conditions shall be construed as if such invalid, illegal or unenforceable provisions had never been contained herein. In the event of any dispute regarding the obligations of the parties under this order, the prevailing party shall recover from the other party all reasonable attorneys’ fees, costs and other expenses (including without limitation such fees, costs and expenses of litigation and appeal(s) incurred by such prevailing party in enforcing any term or provision hereof).
28. Quality Management System. Seller shall maintain a quality system conforming to ISO 9001:2000, ISO 9001:2008 or AS9100 requirements. If Seller is not currently certified then Seller shall submit an NPI Services supplier evaluation form. The Seller’s quality system shall assure that all applicable processes affecting the final quality of the product in the purchase order were rendered by qualified personnel.
29. FOD. Seller shall maintain procedures regarding the prevention of Foreign Object Damage.
30. ESD. Seller shall maintain procedures regarding precautionary and proper handling of Electrostatic Devices.
31. Right of Access. Seller shall provide the right of access to the applicable areas of all facilities, at any level of the supply chain, involved in the order and to all applicable records to NPI, their customer and regulatory authorities.
32. Record Retention. The Seller shall retain all records for a minimum of ten years unless otherwise stated on the purchase order.
NPI Services, Inc. Purchase Order Terms and Conditions
QD122 Rev. 1.2