The sale of goods (the “Order”) to Buyer is subject to the following terms and conditions (the Order together with these Sales Contract Terms and Conditions are hereinafter referred to as the “Contract”). THE CONTRACT EMBODIES THE TERMS AND CONDITIONS APPLICABLE TO THE SALE OF THE GOODS NOTWITHSTANDING ANY TERMS AND CONDITIONS PROPOSED BY BUYER AND SELLER’S AGREEMENT TO SELL AND DELIVER THE GOODS TO THE BUYER IS EXPRESSLY MADE CONDITIONAL ON BUYER’S ACCEPTANCE OF THE CONTRACT. ACCEPTANCE OF THE GOODS OR PAYMENT FOR THE GOODS BY BUYER SHALL BE DEEMED CONFIRMATION OF BUYER’S AGREEMENT TO AND ACCEPTANCE OF THE TERMS OF THE CONTRACT AS STATED HEREIN:
1. PRICE
Unless otherwise expressly provided in the Order, the stated prices do not include duties or sales, use, gross receipts, excise or similar taxes and, the amount of any such present or future taxes or duties or increases therein applicable to the goods covered by this Contract and any such amounts or the sale thereof, shall be added to the price and paid by the Buyer. At Seller’s request, Buyer shall provide Seller with tax-exemption certificates acceptable to the relevant taxing authorities. Unless otherwise expressly provided on the invoice hereof, the prices stated are FCA (Free Carrier per latest Incoterms®) Seller’s factory.
2. PAYMENT
Unless otherwise agreed or mandated, all payments are to be made net 30 days after date of invoice. Seller may at any time require full or partial payment in advance of delivery, or satisfactory assurances or security from Buyer that invoices will be paid when due if in Seller’s judgment the same at any time becomes necessary. If payment is not made when due, interest at the lower of 1 1/2 % per month or the highest rate permitted by applicable law will be charged thereon and paid by Buyer from the due date thereof until paid. In the event Buyer does not pay within the terms of this Contract, all collection costs incurred by Seller, including attorneys’ fees, will be paid by Buyer. Time and terms of payment are of the essence and if any default therein be made by Buyer, Seller shall have the right to terminate this Contract or to defer or to discontinue further shipments hereunder until past due payments are made or satisfactory assurances of Buyer’s financial responsibility are received by Seller (without prejudice, however, to any rights or claims which Seller may have in law or in equity) and such right shall continue irrespective of any prior failure on the part of Seller to exercise such right. Each shipment is to be considered a separate sale.
3. WARRANTY
IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, SELLER WARRANTS ONLY THAT THE GOODS COVERED HEREBY WILL CONFORM TO THE DESCRIPTION ON THE ORDER, THAT SELLER WILL CONVEY GOOD TITLE THERETO, FREE FROM ANY LIEN OR ENCUMBRANCE UPON PAYMENT IN FULL OF THE PRICE DUE FOR THE GOODS, AND THAT THE GOODS WILL BE FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP UNDER NORMAL USE FOR A PERIOD FROM THE DATE OF PURCHASE AS DESCRIBED IN THE WARRANTY SET FORTH AT https://www.galvion.com/pages/warranty/ (THE “PRODUCT WARRANTY’). ADDITIONAL TERMS AND CONDITIONS OF THE FOREGOING WARRANTY (INCLUDING THOSE APPLICABLE TO RETURNS OF GOODS) ARE ALSO STATED IN THE PRODUCT WARRANTY. THE FOREGOING WARRANTY SUPERSEDES ANY ORAL OR WRITTEN WARRANTIES OR REPRESENTATIONS, MADE OR IMPLIED IN ANY MANUAL, LITERATURE, ADVERTISING OR OTHER MATERIALS.
ALL WARRANTIES IMPLIED BY STATE LAW, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY LIMITED TO THE DURATION OF THE PRODUCT WARRANTY. SELLER WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL OR SPECIAL DAMAGES. SELLER’S LIABILITY AND BUYER’S EXCLUSIVE REMEDY SHALL BE EXPRESSLY LIMITED TO THE REPAIR OR REPLACEMENT OF DEFECTIVE GOODS, OR THE REPAYMENT OF THE PURCHASE PRICE OR THE GRANTING OF A REASONABLE ALLOWANCE ON ACCOUNT OF ANY DEFECTS, AS SELLER IN ITS SOLE DISCRETION MAY ELECT.
4. DELAYS
The scheduled dates for shipment of the products are estimated based on current and anticipated supplies and manufacturing capacity at the time of quotation and may be quoted as weeks after receipt of order. All delivery dates are estimates only, and Seller shall not be liable for any damages relating to failure to ship the products as of a certain date. Seller shall not be liable for any delay in fulfillment of or failure to fulfill this Contract arising from any factory or labor conditions, fire, failure or delay in Seller’s usual sources of supply by the acts or omissions of Buyer, its agents, subcontractors or material suppliers, or any other cause not reasonably within the control of Seller. In the event of any delay in delivery due to a cause beyond Seller’s control, unless otherwise agreed, the time for delivery shall be deemed extended for a period equal to the period of delay.
5. TRANSPORTATION AND DELIVERY
Unless otherwise provided on the invoice hereof, all deliveries of goods are FCA Seller’s factory and Seller assumes no liability for loss or damage to the goods after delivery, and risk of loss with respect to the goods passes to Buyer at the delivery point. Seller reserves the right to ship and bill 10% more or less in quantity of the products than the quantity specified on the face hereof.
6. INSPECTION
Buyer shall inspect the products immediately on its receipt, and shall within fourteen (14) days after arrival give written notice to Seller of any matter by reason whereof it may allege that the products are not in accordance with the agreement. If Buyer shall fail to give such notice, the products shall be deemed to be in all respects in accordance with the agreement terms. All products made to special specifications are deemed to be inspected and accepted before shipment is made, and may not be canceled.
7. CHANGES
No changes or modifications to the Contract shall be binding on Seller or Buyer without the written consent of both Seller and Buyer.
8. CANCELLATION
This contract is not subject to cancellation by the Buyer except with Seller’s prior written agreement and after full payment by Buyer of Seller’s cancellation charges which shall be equal to all amounts incurred by Seller for materials, labor and overhead in respect of the canceled goods plus reasonable contract profits.
9. INDEMNITY
Buyer shall indemnify and hold the Seller harmless from and against any and all claims, demands, liabilities, costs and expenses (including attorneys’ fees) that Seller may incur because of any action brought by a third party based on any related to express or implied warranties as to Seller’s products based on representations made by Buyer, except to the extent such claims arise out of a breach by Seller of the warranties set forth in the Contract.
10. EXPORT COMPLIANCE
Galvion products including hardware, software, technology or services transferred are subject to U.S., Canada, U.K. and other countries’ export control restrictions including the International Traffic in Arms Regulations (ITAR). Galvion products must only be exported, re-exported, transferred (including in-country transfers) or otherwise disposed of in compliance with the regulations, licensing and other applicable requirements of all the appropriate U.S. or other export regulations. Diversion contrary to US law is expressly prohibited.
11. MISCELLANEOUS
(a) The waiver by Seller of any term, provision or condition hereunder shall not be construed to be a waiver of any other terms, provisions or conditions hereof, nor shall such waiver be deemed a waiver of a subsequent breach of the same term, condition or provision.
(b) This Contract and all questions of validity, interpretation, performance and nonperformance shall be governed by the laws of the Seller’s address without reference to its principles of conflict of laws.
(c) Buyer is hereby notified of Seller’s objection to any of Buyer’s terms inconsistent herewith and to any additional terms proposed by Buyer in accepting this Contract and such inconsistent or additional terms shall not become a part of this Contract unless expressly accepted in writing by Seller. Neither Seller’s subsequent lack of objection to any such terms, nor the delivery of goods covered hereby, shall constitute or be deemed an agreement by Seller to any such terms.
(d) This Contract supersedes all prior negotiations and understandings of the parties and contains the complete and final agreement between Seller and Buyer concerning the subject matter hereof and no other agreement in any way modifying any of the said terms and conditions will be binding upon Seller unless made in a writing specifically referring to this Contract and signed by Seller.
1. GENERAL
This purchase order (“Order”) and the Blanket Purchase Agreement (“Blanket Agreement”), where applicable, contain the entire agreement between the Supplier (“Supplier”) and Galvion (“Galvion”) regarding the purchase and sale of the products covered by this Order (“Products”). Supplier shall issue to Galvion a written acknowledgment of this Order within three (3) business days of receipt thereof.
2. PRICE AND PAYMENT
(a) This Order shall be filled at the prices shown on the front side hereof or, if the parties have entered into a Blanket Agreement, the lower of the prices shown on this Order and those shown in Exhibit A of the Blanket Agreement shall apply.
(b) If Supplier decreases prices for any items to be furnished hereunder, the price of all unshipped items shall be adjusted to the lower prices.
(c) Supplier shall issue to Galvion a separate invoice for each Order bearing the Galvion purchase order number. Supplier shall invoice no earlier than the day of shipment. Payment of invoices by Galvion shall be Net Sixty (60) days from Galvion’s receipt of an invoice consistent with the terms of this Order or, if applicable, the Blanket Agreement, unless other terms are mandated by law, statute, regulation, public sector ‘flow down’ requirements, or other agreement. If payment is made within ten (10) days of Galvion’s receipt of such invoice, Galvion may, where allowed by law, elect to deduct two percent (2%) from the amount due as a prompt payment discount. Unless shipping and other charges are itemized, any discount will be taken on the full amount of invoices. Supplier shall issue credit within three (3) business days, for any agreed upon shortage or rejection of goods. Supplier shall issue a revised invoice to Galvion that clearly shows all credits applied. Supplier is entitled to request samples as a part of such adjudication.
(d) Unless otherwise provided herein, prices shown on this Order are inclusive of all taxes with respect to the sale to Galvion of Products. Galvion shall not be liable for any tax unless the amount of such tax is separately stated in the written acknowledgment of this Order required by Paragraph 1 hereof. Supplier shall not add any taxes to the price of Products which Galvion is entitled to purchase on an exempt basis, provided that Galvion provides Supplier with such exemption certificates or similar documents as required by law to effect exempt purchases. Supplier will provide Galvion with such documentation as Galvion requires in order to claim tax credits, refunds, rebates or similar relief for taxes charged to Galvion.
3. DELIVERY AND SHIPPING
(a) A delivery schedule is specified in this Order. In the event the specified delivery schedule is judged by Supplier to be unreasonable, Supplier may reject this Order by delivering written notice of its rejection to Galvion within three (3) business days from Supplier’s receipt of such Order; provided, however, that Supplier shall work with Galvion in good faith to mutually agree upon a reasonable delivery schedule. Any Order not rejected in accordance with the foregoing sentence shall be deemed accepted by Supplier.
(b) Supplier shall use a carrier that has been designated by Galvion to ship the Products under this Order. The Products are to be suitably packed or otherwise prepared by Supplier for shipment so as to secure the lowest transportation rates and to meet the carrier’s requirements. No charges will be allowed for such packing or preparation unless otherwise stated on this Order. Supplier shall deliver or arrange for the delivery of the Products as per Galvion’s instructions to Galvion's facility in Newport, Vermont or to such other address as shall be specified by Galvion in this Order. In the absence of delivery terms on the front side of this document to the contrary, delivery shall be DDP (Delivered Duty Paid per latest Incoterms®) to Galvion's facility in Newport, Vermont.
4. TITLE AND RISK OF LOSS
Title to the Products shall pass to Galvion once the delivery of the Products is effected in accordance with the terms hereof and, if applicable, the terms of a Blanket Agreement, except if the Products are rejected by Galvion under this Order.
5. ACCEPTANCE
(a) All Products shall be subject to final inspection and acceptance by Galvion.
(b) If Galvion determines that any Products are defective or do not meet specifications (either before acceptance or under the terms of paragraph 5 hereof), Galvion shall have the right, at its sole option, to (i) reject such Products and obtain a refund of the purchase price and any shipping charges, or (ii) require repair or replacement of the Products by and at the Supplier’s expense and risk. If Supplier fails to repair or replace defective Products within sixty (60) days after Galvion’s request thereof, Galvion may, at its sole option (i) without further notice, terminate this Order for default in accordance with Paragraph 6 hereof, or (ii) require an appropriate reduction in the purchase price.
(c) Payment for any Products hereunder shall not be deemed acceptance thereof. Failure to inspect the Products shall not be deemed to constitute (i) acceptance of any defective or nonconforming Products, or (ii) a waiver of Galvion’s rights or remedies arising by virtue of any defect or nonconformity with the requirements of this Order.
6. CANCELLATION FOR DEFAULT
(a) This Order may be terminated by Galvion at any time if Supplier breaches any material obligation provided hereunder or under the Blanket Agreement, if applicable, and Supplier fails to cure such breach within fifteen (15) days of receipt of a written or electronic notice of such breach.
(b) If Supplier, at any time, determines that it will be or will likely be unable to fulfill this Order for any reason, Supplier shall immediately notify Galvion in writing and specify a proposed completion date and reason for inability to meet agreed upon delivery date(s). In the event the proposed completion date is unacceptable to Galvion, Galvion may cancel this Order without penalty or charge to Galvion.
7. CANCELLATION WITHOUT CAUSE
Galvion may, without liability, by notice to Supplier, no more than ten (10) days after date of order, cancel the whole or any part of this Order. Where notice of cancellation is given more than ten (10) days after date of order, Galvion agrees in such instance to pay Supplier all verified, reasonable, non recoverable out-of-pocket costs for Galvion unique raw materials and works in process incurred by Supplier for the ordered Products under the cancelled Order, but only to the extent that (a) such raw materials unique to Galvion and works in process cannot be reasonably used by Supplier in fulfilling subsequent Galvion Orders and (b) provided that the Supplier is not at fault pursuant to the Order. If Galvion cancels an Order, in no event shall the amount paid to the Supplier exceed 50% of the total amount listed on the relevant Order.
8. WARRANTY
Supplier warrants that all Products delivered pursuant to this Order shall (i) be free from defects in material and workmanship, and (ii) conform to specifications in the Blanket Agreement, or, in absence of same, applicable samples or other descriptions furnished or adopted by Supplier or requirements furnished by Galvion. To the extent the Products are not manufactured pursuant to designs and specifications furnished by Galvion, the Products shall be free from design and specification defects. The foregoing warranties are in addition to all other express warranties given by Supplier to Galvion or imposed by law. All warranties of Supplier shall run to Galvion and its customers.
9. INDEMNITY
Supplier shall, at its own expense, defend and hold harmless Galvion, its affiliates, directors, officers, representatives and customers from any loss or damage (including, without limitation, attorney fees) with respect to any action, claim or proceeding: (i) in connection with Supplier’s breach of the terms and conditions of this Order; (ii) that charges infringement of any patent, trademark, copyright or other proprietary right of any third party by reason of the sale or use of any Products; or (iii) to recover for personal injury or death, property damage or economic loss caused by any Products (regardless of whether such claim or demand arises under tort, negligence, contract, warranty, strict liability or any other legal theories), except to the extent such injury, damage or loss directly results from adherence to Galvion’s specifications. Supplier’s obligations under this Paragraph 9 shall survive any termination of this Order.
10. CONFIDENTIALITY
Supplier will (i) keep all Galvion Information (as defined below) confidential and disclose it only to its employees who need to know such Galvion Information in order for Supplier to supply the Products to Galvion under this Order, and (ii) use Galvion Information solely for the purpose of supplying the Products to Galvion. Products manufactured based on Galvion Information may not be used for Supplier’s own use nor sold by Supplier to third parties without Galvion’s express prior written consent. “Galvion Information” means all information provided to Supplier by Galvion, its affiliates or their representatives in connection with the business, programs, goods and/or ancillary services covered by this Order, including, without limitation, proprietary or confidential information, pricing and other terms of this Order, specifications, formulas, compositions, designs, photographs, samples, prototypes or manufacturing methods. Galvion Information also includes any materials or information that contain, or are based on, any Galvion Information, whether prepared by Galvion, Supplier or any other person and includes all items labeled “confidential” or “proprietary” or which Supplier should reasonably understand include confidential or proprietary content. Galvion Information (or any portion thereof) will not be made accessible to third parties by or through Supplier without Galvion’s prior written consent. Galvion Information will be returned by Supplier to Galvion upon request.
11. INTELLECTUAL PROPERTY
(a) Nothing in this Order will constitute nor be construed by Supplier as a grant of any express or implied license or any other right to use, for any purpose, patents, trademarks, copyrights or other intellectual property of Galvion, its affiliates or its customers except as required in order for Supplier to perform its obligations hereunder. Supplier will not, with respect to any specifications or intellectual property delivered, directly or indirectly, under this Order, apply or submit to the U.S. Patent and Trademark Office or any other national or international patent or trademark office, for any property right protection for intellectual property supplied by Galvion its affiliates or its customers.
(b) Galvion and its licensors retain full ownership of all specifications, designs, calculations, pictures, drawings, plans, test results, samples and other Galvion Information furnished to Supplier by or on behalf of Galvion in connection with the negotiation or the performance of this Order.
12. FOR THE PURCHASE OF COMMERCIAL ITEMS AND SERVICES UNDER A U.S. GOVERNMENT CONTRACT
If the purchase order references a U.S. Government contract, please see the contractural flow downs
13. MISCELLANEOUS
(a) Supplier may not assign this Order or any interest or right herein voluntarily or by operation of law without Galvion’s prior written consent.
(b) The validity, performance, and construction of this Order shall be governed by the laws of the State of New Hampshire without regard to its conflict of laws provisions. The parties agree to exclude the application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement.
(c) If the parties hereto have entered into a Blanket Agreement, any dispute, controversy or claim arising out of or in connection with, or relating to, this Order or any breach or alleged breach hereof shall be resolved in accordance with the terms of the Blanket Agreement. In the absence of a Blanket Agreement, such a dispute shall be resolved in the courts of Portsmouth, New Hampshire, and each party hereby consents to such venue and jurisdiction.
(d) The rights and remedies of Galvion herein shall be cumulative and in addition to any other rights and remedies provided by law or equity or those provided under the Uniform Commercial Code.
(e) This Order may not be amended, waived or discharged except by an instrument in writing executed by the party against whom such amendment, waiver or discharge is to be enforced. Galvion objects to and shall not be bound by any additional or different terms, whether printed or otherwise, in any purchase order or other communication from Supplier to Galvion, unless specifically agreed to in writing signed by the parties and only with respect to those Products intended to be covered by that executed document. Any preprinted terms and conditions commonly known as “boilerplate” text from documents exchanged by the parties during the normal course of business shall be void and of no force or effect.
(f) The failure of either party to enforce any rights resulting from breach of any provisions of this Order by the other party shall not be deemed a waiver of any rights relating to a subsequent breach of such provision or of any other right hereunder.
(g) If any part of this Order is found invalid or unenforceable, the remainder of the provisions of this Order shall continue in full force and effect as if this Order had been executed with the invalid portion thereof eliminated.
(h) All notices or other communication to be given under this Order must be in writing (by delivery by hand, mail, email or fax) and will be deemed given when (1) delivered personally, (2) sent by confirmed email or facsimile, (3) received by commercial overnight courier with written verification of receipt, or (4) sent by registered or certified mail, return receipt requested, postage prepaid.
(i) Unless otherwise agreed, the Country of Origin for all goods supplied shall not change from specification or initial delivery without the prior agreement in writing by Galvion. Specifically, NO Made in USA goods will be sourced elsewhere without the express prior written agreement of Galvion.
(j) Supplier will comply with all laws and regulations applicable to the performance of its obligations hereunder, including applicable export control laws and applicable procurement rules and regulations, and Supplier will defend and hold Galvion harmless from loss, costs or damage, including attorneys’ fees resulting from any such violation.
(k) The parties do hereby agree that this Order be drawn up in the English language only.
(l) This Order may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which taken together shall constitute one and the same instrument.
