Supplier P.O. Terms and Conditions of Sale

Micro-Trak Systems, Inc.
PO TERMS & CONDITIONS

AGREEMENT AND ACCEPTANCE

This duly authorized order, including the terms and conditions herein, is the complete and final agreement between the Buyer and Seller.  Immediate acknowledgement is required with full delivery information.  Buyer’s purchase order (or release against a blanket purchase order) is an offer to Seller by Buyer to enter into the purchase and supply agreement it describes. Seller’s acknowledgement or commencement of performance shall constitute acceptance by the Seller.  No term or condition stated by the Seller in acknowledging or otherwise accepting this order shall be binding upon Buyer unless accepted in writing, nor shall any other agreement or quotation modify the terms of this order unless agreed upon in writing by the Buyer’s authorized representative.

Price and Delivery

Seller shall be required to furnish the materials and services called for by this order in accordance with the prices and delivery date or schedule stated herein.  Higher than specified prices cannot be invoiced without written permission.  Invoice must include transportation and taxes as separate items.  If prices are not stated on the order, Seller agrees to invoice at its lowest prevailing market price and in no event is the order to be filled at higher prices than last quoted or charged to Buyer without written consent by the Buyer.  Prices stated, or agreed upon, shall be binding to the extent of the contract term unless Seller’s net prices to others similarly situated for materials similar to those furnished under this order are reduced below those stipulated herein.  Seller shall thereon offer Buyer benefit of any reductions while they are in effect and is required to notify Buyer of any reductions offered.  If delivery is not specified, offered delivery shall be subject to approval and written acceptance by Buyer.  Buyer reserves the right to cancel, without obligation, this order if shipment is not made as promised. Buyer reserves the right to return, at Seller’s expense, articles shipped more than 10 days in advance of schedule.

DISCOUNTS AND INVOICING 

Discounts shall be calculated from date acceptable invoice is received by Buyer at applicable address. Discount shall not include freight or similar charges.  Render separate invoice for each shipment within twenty-four hours.  Bill of lading or express receipt must accompany each invoice.  Payment of invoice shall not constitute acceptance of material or service or other failure of Seller to meet any provision of order.  Buyer reserves right to set off at any time any amount owed by Buyer to Seller against any amount owed to Seller, or any of its affiliated companies.

QUANTITY

Buyer is under no obligation to accept any shipment exceeding the quantity specified herein unless agreed to in writing, and reserves the right to return at Seller’s expense part or all of any amount so shipped.

CHANGES

Buyer may at any time by written change order, suspend performance in whole or in part, make changes in drawings, designs, specifications, methods of shipment or packing, or time or place of delivery, require additional work or direct the omission of work.  If any such change causes an increase in the cost of the time required for the performance of this order, an equitable adjustment shall be made in the contract price or delivery date or schedule, or both, and this order shall be modified in writing accordingly.  Any claim for adjustment under this paragraph shall conclusively be deemed waived unless asserted in writing within thirty (30) days from the date of receipt by the Seller of the change order.  The amount of the claim shall be stated when it is submitted.  Where the cost of property made obsolete or excess as a result of a change is included in Seller’s claim for adjustment, the Buyer shall have the right to prescribe the manner of disposition of such property.  Any change order issued hereunder will not be binding on Buyer unless by an authorized purchasing agent of Buyer.  Nothing in this paragraph shall excuse Seller from proceeding with the purchase order as changed.  Buyer’s engineering and technical personnel may from time to time render assistance or give technical advice to, or effect an exchange of information with, Seller’s personnel in a liaison effort concerning the suppliers or services to be furnished hereunder, such exchange of information or advise shall not vest Seller with authority to change the supplies or services hereunder or the provisions of this order.

PACKAGING AND SHIPPING

Unless otherwise provided herein, no change shall be made by Seller to containers, crating, boxing, bundling, dunnage, drayage, storage or other packing requirements.  All supplies shall be packed, packaged, marked and otherwise prepared for shipment in accordance with sound commercial practices to meet requirements for obtaining lowest transportation rates, or as otherwise specified therein.  Seller shall mark containers or packages with necessary lifting, loading and shipping information. An itemized packing sheet must accompany each shipment unless otherwise specified.  Damage to any article resulting from improper packaging will be charged to seller.

COMPLIANCE

Seller warrants and agrees to observe and comply with, in the performance of this order, all applicable federal, state and local laws, rules and regulations and to indemnify and save harmless Buyer for and from any and all liabilities, expenses, costs and damages which the Buyer may be put to or incur or suffer as a result of Seller’s failure or omission so to do. Seller warrants that the supplies or services furnished under this order have been or will be provided in compliance with all applicable requirements of the Fair Labor Standards Act and requirements from Workmen’s Compensation Insurance as my be in force at Seller’s location.  Seller shall agree to furnish certification of compliance at Buyer’s request.

ASSIGNMENT AND SUBCONTRACTS

Seller shall not assign the accounts receivable or subcontract the order or any right or obligation thereunder without the written consent of the Buyer.  Purchases of parts and materials normally purchased by Seller or required by this order shall not be construed as assignments or subcontracts.

PROPRIETY

Seller agrees that all information disclosed, obtained, or discovered by Seller or its representatives from, but not limited to, drawings, prints, publications, specifications, processes, manufacturing techniques, verbal explanations, schedules and the like, as a result of this order, are received in confidence and are the propriety property of Buyer and that such information shall not be reproduced or used by Seller or transmitted or disclosed to any person or organization by Seller, without prior written consent of Buyer.  Upon termination of this Purchase Order, Seller shall return to the Buyer upon request all drawings, blue prints, descriptions or other paper which embody proprietary information.

SPECIAL EQUIPMENT

Such items, and any similar items, furnished Seller by Buyer are hereinafter referred to as “Special Equipment” or “Tooling”.  Special equipment shall be kept in good condition, and from time to time replaced by Seller, without expense to Buyer, except that the cost of changes due to Buyer’s change of design or specification shall be paid for by Buyer if such changes are made prior to the exhaustion of useful life thereof.  Seller shall not, except with written consent by Buyer, disclose any information to other persons with regard to special equipment, except as may be required to carry out its obligations hereunder.  Special equipment shall not, except with written consent of Buyer, be used in the production, manufacture or design of any articles other than those called for by this order.  Buyer does not require that Seller carry any insurance on any such property furnished by Buyer, and Seller shall not include any insurance cost therefor in the price under this order.  If the cost of special dies, molds, jigs or tools involved in the manufacture of supplies covered by this order is amortized or included in the price hereunder, the same shall become the property of Buyer upon completion or termination of this order and shall be disposed of as Buyer may direct.

RISK OF LOSS

Seller shall bear all risk of loss on supplies called for by this order until final acceptance by Buyer, or its customer, at destination, unless otherwise specified in this order, except for loss occasioned by gross negligence of Buyer of its customer.

LIABILITY FOR INJURY

Seller agrees to be responsible for, and to indemnify and save harmless the Buyer and its employees and customers from, any and all injury, death, damage and loss to persons or property arising out of or incident to the work to be performed by Seller pursuant to the order, whether performed on the premises of Seller, of Buyer or elsewhere.  Seller agrees to carry and maintain insurance coverage’s satisfactory to Buyer to cover the above, and upon Buyer’s request to furnish to Buyer certificates or other appropriate evidence of such insurance. Supplier reserves the right to self-insure.

LIEN WAIVERS

If the furnishings of any labor or material pursuant to this order could give rise to any liens or lien rights against any premises of Buyer or its customers, Seller agrees to furnish upon Buyer’s request at any time or times good and sufficient lien waivers by Seller and all other persons furnishing any such labor or material at Seller’s instance or request.

WAIVER

The failure of Buyer in any one or more instances to insist upon performance of any of the terms or conditions of this order, or to exercise any right or privilege in this order contact, or the waiver of any breach of the terms and conditions of this order shall not be construed as thereafter waiving such terms, conditions, rights or privileges, and the same shall continue and remain in force and effect as if no waiver had occurred.

ADVERTISING

The Seller shall not, without first obtaining the written consent of the buyer, in any manner advertise or publish the fact that Seller has furnished to Buyer, the material and/or services ordered hereunder.

NOTICE LABOR DISPUTES

Whenever an actual or potential labor dispute is delaying or threatens to delay the timely performance of this order, Seller shall immediately give notice thereof to Buyer.  Such notice shall include all relevant information with respect to such dispute: (b) Seller agrees to insert the substance of this clause, including this paragraph (b), in any sub-contract hereunder, as to which a labor dispute may delay the timely performance of this order; except that each sub-contract shall provide that in the event its timely performance is delayed or threatened by delay by any actual or potential labor dispute, the sub-contractor shall immediately notify the Seller of all relevant information with respect to such disputes.

TERMINATION

  1.      Without Cause – Buyer may terminate all or any part of this order at any time or times without cause by telegraphic or other written notice to Seller.  Armed Service Procurement Regulation (ASPR) 8-706 as in effect at the date of this orders incorporated herein by reference and made a part hereof and shall govern the rights, obligations and liabilities of Buyer and Seller in case of any termination by Buyer of all or any part of this order without cause, except that any termination claim by Buyer of all or any part of this order without cause, except that an termination claim must be submitted to Buyer within 90 days after effective date of termination, and except that if this order is not for the purpose of aiding directly or indirectly in the performance of a contract with the U.S. Government the references if ASPR 8-706 to the Government shall not apply.  The provisions of this subparagraph shall not limit or affect the right of Buyer to terminate this order for cause and shall not apply to a termination with cause.
  2.      With Cause – Time is of the essence of this order.  If seller fails to make any delivery in accordance with the agreed delivery date or schedule or otherwise fails to observe or comply with any of the other instructions, terms, conditions or warranties applicable to this order or fails to make progress so as to endanger performance of this order or in the event of any proceeding by or against Seller in bankruptcy or insolvency or for appointment of a receiver or trustee or an assignment for the benefit of creditors, Buyer may (in addition to any other right or remedy provided by this order or by law) terminate all or any part of this order by telegraphic or other written notice to Seller without any liability by Buyer to Seller on account thereof in event of termination for cause.  Buyer may purchase similar supplies or services elsewhere on such terms and such manner as Buyer may deem appropriate and Seller shall be liable to Buyer for any excess cost occasioned Buyer thereby.

INDEMNIFICATION

Seller shall assume the defense of any indemnify and hold harmless the Buyer against any claim, including without limitation claims based on strict liability in tort, negligence, or breach of express or implied warranty, where it is alleged that personal injury, death, or property damage was caused by a defect in material, design or workmanship of the product or part supplied the Buyer under the terms of this purchase order.  Buyer shall promptly notify Seller in writing of any claim as to which it tenders defense and seeks indemnification as set forth herein.

PATENTS

The Seller  agrees to defend any suit or proceeding brought against the Buyer so far as it is based on a claim that any apparatus, or nay part thereof, furnished under this contract or order constitutes on infringement of any patent of the United States or Canada if notified promptly in writing and given authority, information and assistance at the Seller’s expense for the defense of the same, and given authority, information and assistance at the Seller’s expense for the defense of the same, and Seller shall pay all damages and costs awarded therein.  In case said apparatus or part thereof is in such suit held to constitute infringement and the use of said apparatus or part is enjoined, the Seller shall, at its expense, either procure for the Buyer the right to continue using the apparatus or part, replace same with non-infringing apparatus, or modify it so it becomes non-infringing, or remove the apparatus and refund the purchase price and the transportation and installation cost hereof.

SERVICE PARTS

If this order covers accessories, assemblies, equipment units, machinery, motors, or sub-assemblies of any kind, which are to be used in or with products of Buyer’s manufacture, Seller agrees to furnish service parts necessary to the repair, maintenance and operations of said items at any and all times, as ordered during the period of years in which it is customary practice in this industry to furnish service parts, or in which Buyer may be required to supply said parts to conform to present or future statutes in any of the states or countries in which Buyer’s products with or including said items are sold and Seller further agrees to permit Buyer or other parties designated by Buyer to repair, maintain, service and restore to like new operation said items.

PROVISIONS OF EXECUTIVE ORDER 11246

SECTION 14 – EQUAL OPPORTUNITY CLAUSE

  1.      The supplier will not discriminate against any employee or applicant for employment because of race, creed, color or national origin.  The supplier will take affirmative action to insure that applications are employed and that employees are treated during employment without regard to their race, creed, color or national origin.  Such action shall include but not be limited to the following Employment, upgrading, demotion, or transfer recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training, including apprenticeship.  The supplier agrees to post in conspicuous places, available to employees, and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this non-discrimination clause.
  2.      The supplier will, in all solicitations or advertisements for employees placed by or on behalf of the supplier, state that all qualified applicants will receive consideration for employment without regard to race, creed, color or national origin.
  3.      The supplier will send to each labor union or representative of workers with which he has collective bargaining agreement or other contract or understanding, a notice to be provided by the agency contracting officer, advising the labor union or workers representative of the supplier’s commitments under section 202 of Executive Order 11246 of October 23. 1965, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
  4.      The supplier will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor.
  5.      The supplier will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant hereto, and will permit access to his books, records and accounts by the contracting agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
  6.      In the event of the supplier’s noncompliance with the nondiscrimination clauses of this contract or with any of such rules, regulations, or orders this contract may be cancelled, terminated or suspended in whole, or in part and the supplier may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, or by rule, regulation or order of the Secretary of Labor, or as otherwise provided by law.
  7.      The supplier will include the provisions of paragraphs (1) through (7) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24,  1965, so that such provisions will be binding upon each subcontractor or vender.  The supplier will take such action with respect to any subcontract or purchase order as the contracting agency may direct as a means of enforcing such provisions including sanctions for non-compliance provided however, that in the event the supplier becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the contracting agency, the supplier may request that the United States enter into such litigation to protect the interest of the United States.

QUALITY CRITERIA/WARRANTY

(a) Seller shall maintain quality and delivery standards for all products ordered that are consistent with acceptable industry practices. If Seller does not meet such levels, the Buyer may terminate this Agreement immediately without any further obligations to Seller. At Buyer’s request, Seller will furnish Buyer test samples of products as may be reasonably required by Buyer to determine if their manufacture is in accordance with the specifications furnished by Buyer and these quality standards. These samples will be provided at no cost to the Buyer.

(b) Seller warrants to Buyer, Buyer’s customers and their customers that all products and materials supplied or sold under this Agreement will: (i) be merchantable; (ii) be fit and sufficient for the purposes intended; (iii) comply with all specifications, drawings, descriptions and samples delivered to Seller by Buyer; (iv) be free from defects in design, materials, and workmanship; (v) comply with all applicable laws, ordinances, rules, codes, and regulations; and (vi) be manufactured in accordance with the quality standards identified above.

(c) Seller agrees to notify Buyer immediately in writing in the event Seller becomes aware that Seller may be incapable of delivering products which conform to this Section.

(d) Seller agrees that all warranties will survive inspection, installation, assembly, acceptance, and payment by Buyer.

(e) Seller shall transfer and assign to Buyer all of its rights (but not any obligations) under all warranties from equipment or material manufacturers or suppliers, permitted subcontractors, or other third parties.

 (f) In addition to any other rights and remedies available to Buyer under the terms of this

Agreement, Buyer shall have the right to set off amounts equal to costs or damages incurred by Buyer as a result Seller’s breach of the terms set forth in this Section against any amounts due and owing from Buyer to Seller.

In no event shall either party be liable to the other party for any indirect, special, consequential or punitive damages or lost profits arising out of or related to this agreement, except when (a) caused by a party’s gross negligence or willful misconduct; or (b) when injury to person or property has occurred as a result of a breach of warranty.

(g) In the event (a) Buyer, any of Buyer’s customers’ determine that a recall campaign or owner notification program is necessary to comply with a law, regulation, order, or other government requirement, or (b) within Buyer’s reasonable exercise of its business judgment, such recall campaign or owner notification program is necessary for business purposes, costs for such activity shall be apportioned on the basis of the causal fault respectively attributable to Buyer and Seller. For the purposes of this contract, a recall campaign is defined as a systematic effort to locate product that is in breach of Buyer’s or Buyer’s customers’ manufacturer’s warranties or otherwise required to be recalled to inspect and correct or replace such product or parts of product as necessary. Seller agrees that in the event of any disagreement between Buyer and Seller regarding apportionment of causal fault that such dispute shall be referred to final and binding arbitration in Minneapolis, MN under the CPR Rules and the Federal Arbitration Act by a single arbitrator chosen by the CPR whose decision shall be final and binding. The arbitrator shall have authority to determine how fault shall be apportioned and the costs, including attorneys’ fees, which may be recovered by Buyer.

(h) The responsibilities of the Buyer set forth in this (and other sections) of these terms survives termination of any purchase order or contract.

INSPECTION

All articles shall be subject to inspection and at all times and places, including the period of manufacture, by Buyer and, if this order is placed under government contract, the Government.  If any inspection or test is made on Seller’s premises, Seller, without additional charge, shall provide all reasonable facilities and assistance for the safety and convenience of Buyer and Government inspectors.  Such inspections and tests shall be performed in such a manner as not unduly to delay the work.  All articles are also subject to final inspection and acceptance at Buyer’s plant notwithstanding any payments or other prior inspections.  Such final inspection shall be made within a reasonable time after delivery.

GRATUITOUS

Seller warrants that neither it nor any of its employees, agents or representatives has offered or given any gratuitous to Buyer’s employees, agents or representatives with a view toward security his order or securing favorable treatment with respect thereto.

EFFECT OF INVALIDITY

The invalidity in whole or in part of any provision hereof, shall not affect the validity of any other provision.

FORCE MAJEURE

The obligations of either party to perform under this agreement will be excused during each period of delay caused by major accidents, Acts of God, acts of war (including terrorist’s acts), strikes or labor disputes, laws, rules, regulations of any government agency, fires, floods, delays, or failures in delivery of carriers or suppliers, shortages of energy or materials and any other cause which are beyond the reasonable control of the party obligated to perform (hereinafter “Event of Force Majeure”). In the event that either party ceases to perform its obligations under this agreement due to the occurrence of a Force Majeure Event, such party shall: (1) immediately notify the other party in writing within 24 hours after the beginning of the event and its expected duration; and (2) take all reasonable steps to recommence performance of its obligations under this agreement as soon as possible. In the event that any Force Majeure Event delays Supplier’s performance for more than sixty (60) days following notice by Supplier pursuant to this Agreement, buyer may terminate this Agreement immediately upon written notice to supplier.

                                                                  DATED:  9/4/2014