MIME-Version: 1.0 Content-Location: file:///C:/E8550EA5/TCOFPURCHASE.htm Content-Transfer-Encoding: quoted-printable Content-Type: text/html; charset="us-ascii" ENGINEERED SOLUTIONS TERMS AND CONDITIONS OF PURCHASE



1.  Scope and Acceptance.  Unless Supplier and Engineered Solutions, Inc. ("ES") have entered into a separate written agreement (e.g., a Global Supply Agreement), signed by both parties, that governs the purchase by ES and sale by Supplier of goods and services, then ES’ offer to purchase goods and/or services from Suppl= ier (collectively, "Items") can only be accepted by Supplier upon the= se Terms and Conditions of Purchase, which become the agreement ("Agreement") between Supplier and ES for the purchase of such Items.  Supplier may accept these Terms and Conditions of Purchase by indicating acceptance, in writing or electronically, of ES’ order to Supplier for Item(s); OR by the commencement of performance.  No chang= e, additional or modified term, or revision to this Agreement will be effective unless set forth in writing and signed by a duly authorized representative = of ES.

2.  Proprietary Informatio= n and Prohibited Activities. A. GeneralES= 217; “Proprietary Information” means all information obtained by, disclosed to, or developed by Supplier and that is based on, incorporates, constitutes, or is derived from any of the following: (i) samples, schematics, drawings, designs, specifications, manuals, forecasts = and other technical, business, financial or trade secret information obtained f= rom or through ES, and (ii) all other proprietary and confidential information (including the terms and existence of this Agreement) provided to Supplier = by ES or obtained by Supplier from ES’ databases or systems during the t= erm of, or in connection with the performance of, this Agreement.  ES gran= ts to Supplier the right to use the Proprietary Information solely for the pur= pose of providing Items to ES.  Supplier will not disclose, discuss or use = any Proprietary Information for any other purpose including, without limitation: (1) reverse engineering the Items; (2) issuing any press releases, advertis= ing, making public statements or in any way engage in any other form of public disclosure; (3) developing, designing, manufacturing, engineering, refurbishing, selling or offering for sale, any Items, or parts or componen= ts of Items, including derivatives, improvements or equivalents thereof; or (4) assisting any third party in any manner to perform such activity.  Proprietary Information shall be clearly marked by Supplier as Engineered Solutions Confidential.  Supplier shall use reasonable care to protect confidentiality of the Proprietary Information, and in any event, Supplier shall use at least that degree of care that Supplier uses to protect its own similar information. If Supplier determines that it must consult thi= rd parties for the purposes of providing Items to ES, then Supplier shall ensu= re that such third parties have entered into an agreement with Supplier that protects ES’ interests in the same manner as set forth in this Agreem= ent, and Supplier shall be responsible and liable for such third parties’ = compliance with the terms of this Agreement.  Upon request, Supplier shall make s= uch agreements available to ES.

B.  = Further Information.  On request, and in any event, upon termination of th= is Agreement, Supplier will return all Proprietary Information to ES, and will= in addition, provide to ES current and complete specifications, designs and drawings for each Item produced for ES, and any other information that is b= ased on or incorporates ES’ Proprietary Information or its patents, copyri= ghts or trade or service marks.  All such information shall be the sole property of ES.

C.  Prohibited Activiti= es.  Except for delivery of Items to ES, Supplier will not reverse engineer, develop, design, manufacture, refurbish, sell or offer for sale any Items about which Supplier has received or obtai= ned Proprietary Information or assist any third party to perform any of such activities.

D.  = Equitable Relief.  Supplier agrees that ES would suffer irreparable harm for which monetary damages are an inadequate remedy, and that equitable relief = is appropriate, if Supplier were to breach or threaten to breach any obligatio= ns in this Section.

3. &= nbsp;Warranty.  A.=   General.  Supplier warrants that, for a period of 24 mon= ths after delivery to ES, all Items shall be free from defects in design, workm= anship, material, and manufacture; shall be of merchantable quality and be fit and suitable for the purpose intended by ES; all Items shall comply with the requirements of this Agreement, including any of ES’ specifications, drawings or samples; all Items shall consist of new (not used or recycled) material; ES shall acquire good and marketable title to all Items, free and clear of all liens, claims and encumbrances; and all services shal= l be performed in a workmanlike and professional manner in accordance with the highest industry standards.  The foregoing warranties are in additio= n to all other warranties, express or implied, and survive delivery, inspection, acceptance, or payment by ES.

B.  = Infringement.  Supplier warrants that all Items, the sale of Items by Supplier, and the use and sale of Items by ES are and will be free from liability for infringement of, or claim of royalties for, patent rights, copyright, trademark, trade secrets or confidential or proprietary intellectual property rights, mechan= ic’s liens and other encumbrances of any person or entity (collectively “Rights and Encumbrances”).

C.  = Remedies.  If an Item does not meet its warranty requirements, then in addition to remedies available under applicable law, ES may, at its option, require Supplier to replace the Item or repair the Item; return the Item to Supplier and recover the purchase price; correct the Item itself and charge Supplier= the reasonable cost of correction; or return the Item to Supplier, purchase a comparable Item in the open market, and charge Supplier with any reasonable cost differential (including expedited manufacturing and delivery charges, = if applicable).

4.  Inspection.  Items are subject to inspection and test by ES at all times and places, including during the period of manufacture, and in any ev= ent, at any time prior to final acceptance.  Items are not accepted by reas= on of any preliminary inspection or payment of any invoice.  If rejected = or required to be corrected, Items shall be either replaced or corrected by an= d at the expense of Supplier as directed by ES

5. Product Obsolesce.  As soon as Supplier becomes aw= are of product obsolescence, the supplier shall inform ES Purchasing department. Stability of ongoing supply based on minimum 180 days future supply is requ= ired.

6.  Disclaimer and Limitation of Liability for Damages.  In no event shall ES be liable TO SUPPLI= ER OR TO ANY OTHER PERSON OR ENTITY UNDER any equity, COMMON LAW, tort, CONTRACT,= ESTOPPEL, negligence, STRICT LIABILITY, OR OTHER THEORY, for any special, indirect, incidental, PUNITIVE, consequential or contingent damages, or any damages resulting from LOSS OF SALE, BUSINESS, PROFITS, DATA, OPPORTUNITY OR GOODWI= LL, EVEN IF THE REMEDIES PROVIDED FOR IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE, and even if ES has been advised of the possibility of such Damages= . 

7.     Intellect= ual Property Rights and Licenses.  A.  Transfer to ES.  As partial consideration for this Agreement, any rights arising under patent, copyrigh= t, trade secret, trademark, mask works, moral rights, or other intellectual property rights in any jurisdiction (collectively, “IP Rights”), that are created, conceived, made or reduced to practice by or for Supplier= and that are related to Items, are hereby irrevocably assigned and transferred = to ES by Supplier, and Supplier shall cause its employees, agents, contractors= and sub-tier suppliers (regardless whether they sell directly to Supplier) to a= lso assign and transfer all such IP Rights to ES unless such IP Rights (a) were developed independent of, and do not contain or reflect the assistance (financial or otherwise), collaboration, input, involvement, development efforts, or creative or inventive contribution of ES or ES employees, consultants, contractors or other suppliers, and (b) do not reflect or rely upon ES’ Proprietary Information, and are not an improvement, enhancement, modification, or derivative work of any IP Right belonging to = ES or transferred to ES by this Section.

B.  License to ES.&= nbsp; If any Item incorporates or relies upon any IP Rights created, conceived, m= ade or reduced to practice by or for Supp= lier that are not transferred to ES by this Section (collectively “Supplie= r IP Rights”), then Supplier, as partial consideration for this Agreement, grants to ES an irrevocable, non-exclusive, paid-up, world-wide right and license, with rights of sublicense, to use, distribute, import, improve, se= ll and have sold such Supplier IP Rights as is necessary for ES to fully explo= it the Items.  ES shall also be entitled to grant licenses to its custome= rs to use such Supplier IP Rights as related to the operation of ES’ products. 

C.  = No Unauthorized Modification of ES IP Rights.  Supplier shall not (and shall cause its employees, agents, contractors and sub-tier suppliers not t= o) improve, enhance, or modify IP Rights of ES without ES’ prior written consent; if such an improvement, enhancement, or modification is nevertheless made, Supplier hereby irrevocably assigns and transfers to ES, and Supplier shall cause its employees, agents, contractors, and sub-tier suppliers (regardless whether they sell directly to Supplier) to also assign and transfer to ES, = all IP Rights in each such improvement, enhancement, or modification.  If = any of the foregoing transfers and assignments are to any extent ineffective, Supplier shall grant to ES an irrevocable, non-exclusive, paid-up world-wide right and license with rights of sublicense, to use, distribute, import, improve, sell and have sold, and make and have made such modifications to ES’ IP Rights.

8.  Responsibility for Goo= ds; Risk of Loss.&= nbsp; Notwithstanding any prior inspections, Supp= lier bears all risks of loss, damage, or destruction to Items until final accept= ance by ES at ES’ delivery destination.  Supplier bears all such risks with respect to any Items: (a) rejected by ES; or (b) required to be correc= ted; provided, however, that ES shall be responsible for loss occasioned solely = by the gross negligence of ES’ employees acting within the scope of their employment.  Items shall be shipped to ES by Supplier in accordance wi= th the terms of this Agreement.

9.  Duty Drawback.  <= /span>Supplier = will provide ES with U.S. Customs entry data and information and receipts for du= ties paid as ES determines necessary for ES to qualify for duty drawback.  = At the time of delivery of the Items, but in no event later than thirty (30) d= ays after each calendar quarter, Supplier will provide said documents accompani= ed by a completed Certificate of Delivery of Imported Merchandise or Certifica= te of Manufacture and Delivery of Imported Merchandise (Customs Form 331) as promulgated pursuant to 19 CFR 191, or successor  regulations.<= /p>

10. Cancellation. A. General.  ES may cancel this Agreement in whole or in= part by written or electronic notice, if Supplier: (1) fails to deliver Items in accordance with specified delivery times, Item requirements or other specifications; (2) fails to replace or correct defective Items as ES requi= res; (3) fails to comply strictly with any provision of or repudiates or anticipatorily repudiates this Agreement; (4) becomes insolvent, files a petition for relief under any bankruptcy, insolvency or similar law, makes = an assignment for the benefit of its creditors, or takes any action for (or in anticipation of) any of the foregoing or (5) there is a material change in control or ownership of Supplier’s business.

B. Upon Cancellation.  Upon cancellation pursuant to this Section, Supplier shall: (1) supply any portion of the Items for which this Agreement is not cancelled; (2) be liable for additional costs, if any, for the purchase of similar goods and services to cover such default; and (3) at ES’ requ= est, transfer title and deliver to ES: (a) any completed Items, (b) any partially completed Items and (c) all unique materials and tooling.  Prices for partially completed Items and unique materials shall be negotiated, but in = no event shall they exceed the price set forth herein.  ES’ rights = and remedies as described herein are in addition to any other rights and remedi= es provided at law or in equity.

11.  Indemnity by Supplier.  Supplier shall defend, indemnify and hold harmless ES (and its officers, directors, agents and representatives) from = and against any and all claims, suits, losses, penalties, damages (whether actu= al, punitive, consequential or otherwise) and associated costs and expenses (including attorney's fees, expert's fees, and costs of investigation) and = all liabilities that are caused in whole or in part by: (a) any actual or alleg= ed infringement of any Rights and Encumbrances; (b) any breach by Supplier of = this Agreement; (c) any negligent, grossly negligent or intentional act, error or omission by Supplier, its employees, officers, agents or representatives in= the performance of this Agreement; or (d) any claims that are for, in the nature of, or that arise under warranty, strict liability or products liability wi= th respect to or in connection with the Items.

12.  Force Majeure.=   A failure by either party to perform due to causes beyond the contr= ol of and without the fault or negligence of such party is deemed excusable du= ring the period in which such cause of failure continues.  Such causes may include acts of God, or the public enemy, acts of Government (in sovereign = or contractual capacity), fire, flood, epidemic, strike, freight embargo and unusually severe weather.  When Supplier becomes aware of any actual or potential force majeure condition, Supplier shall immediately notify ES of = the condition. 

13.  Shipping and Delivery.  Time is of the essence. No partial delivery or delivery of added quantities shall be made unless ES has given prior written consent.  All prices for Items shown in this Agreement s= hall be deemed to include any fees or costs related to handling, packaging, crat= ing, export , shipping or other related delivery expenses unless otherwise set f= orth in this Agreement. For shipments designated Prepaid in this Agreement, all delivery costs and expenses = (other than insurance) shall be specified as “Freight – Third Party Bill” on bills of lading or shipping receipts, to be paid by ES.  Unless specifically approved by ES in advance in writing, ES shall not be responsible for delivery costs and expenses (i)= for a service level (ground, air, second-day, next-day= ) that exceeds the authorized shipping service level; (ii) incurred in connec= tion with the transportation of Items between Supplier and a sub-tier supplier or any other supplier.  ES may recover and offset or adjust payment for t= hose delivery costs and expenses that ES incurs, and for which ES is not respons= ible under this Section.

14.  Termination for Convenience.  ES may terminate this Agreem= ent for its convenience in whole or in part at any time by written or electronic notice.  Upon such termination, Supplier shall, to the extent practica= ble and at the time specified by ES, stop work and terminate outstanding orders under the Agreement, protect all property in which ES has or may acquire an interest, and transfer title and make delivery to ES of all Items, material= s or other property held or acquired by Supplier in connection with the terminat= ed portion of this Agreement.  ES’ maximum liability for Items rela= ted to such termination shall be a pro-rata amount of the total Agreement price, less advances or other payments, based upon the price for Items delivered or completed prior to termination, and the actual costs (including a reasonable profit) for work in process incurred by Supplier which are allocable to the terminated portion of this Agreement. ES shall have no liability at law or = in equity under this Section unless Supplier submits a detailed claim to ES wi= thin six months after ES’ notice of termination.  

15.  Change Orders.=   By written notice, ES may suspend performance under this Agreement, change the quantities of Items, extend or shorten delivery requirements or make other changes within the general scope of this Agreement, including without limitation: (a) applicab= le specifications, drawings, and other documents; (b) method of shipment or packing; and (c) place or date of delivery, inspection or acceptance. = If such a change causes an increase in the cost of or time required for Suppli= er's performance, an equitable adjustment shall be made in the price or other te= rms of this Agreement if requested by Supplier prior to change implementation.  Supplier shall continue with performance of this Agreement in accordance with the notice of change or amendment.  A cha= nge by ES pursuant to this Section shall not constitute a breach or default by = ES.

16.  Invoices; Payment Ter= ms.  Invoices shall contain purchase order number, a description of Item= s, quantities, unit prices, extended totals, applicable taxes and any other information specified by ES.  Payment of an invoice shall not constitu= te acceptance of Items and shall be subject to adjustment for errors, shortage= s, defects, or other causes.  ES may set off any amount owed by ES against any amount owed by Supplier or any of its affiliated companies to ES.  Payment in connection with any discount term will be calculated from: (a) scheduled delivery date, (b) actual delivery date, or (c) the date an acceptable invoice is received, whichever is latest; payment under a discou= nt term is deemed made on the date of mailing of ES’ check.  If pay= ment is made electronically, payment shall be deemed made when the Supplier̵= 7;s depository institution receives or has control of the payment.

17.  Miscellaneous.  A. Assignments.  No right or obligation under this Agreement may be assigned by Supplier without the pri= or written consent of ES.  ES may assign the rights or obligations or bot= h of this Agreement in whole or part at any time.

B.  Waiver.  If ES fails to insist on performance of any term or condition, or fails to exercise any right or privilege hereunder, such failure shall not constitute a waiver of such ter= m, condition, right or privilege.

C.  = Survival of Obligations; Severability.  The obligations of the following sections shall survive the cancellation, termination or expiration of this Agreement: 1, 2, 3, 5, 6, 7, 8, 9b, 10, 12, 13, 15, and 16.  Any provi= sion of this Agreement that is held unenforceable or invalid for any reason shal= l be severed and the remainder of the Agreement shall continue in effect.  =

D. Com= pliance with Laws.  Supplier warrants and represents that no law, rule, regulation, order or ordinance of the United States, a state, any governmental agency or authority of any country has been violated in supply= ing the Items ordered herein.  Further, Supplier represents and warrants t= hat it is in compliance with Executive Order 11246, any amending or supplementi= ng Executive Order and implementing regulations, unless exempted, and that the Items were produced in compliance with the Fair Labor Standards Act of 1938= , as amended. CE training has been deployed to sub-suppliers and periodic CE compliance audits are performed.

E.  Governing Law, Exclusive Forum= .  T= he Agreement shall be interpreted, enforced and governed by the laws of the St= ate of California, excluding its choice of law rules.  The exclusive forum for any dispute related in any way to this Agreement or the Parties' relationship shall lie= in the courts, state or federal, of California, and venue shall lie in the courts of Santa Clara County.  Items shall be deemed and shall qualify as goods under the Uniform Commerci= al Code as adopted in California= .  Each Party consents to personal jurisdiction in the above courts.

F.  CISG.  With respect to transactions to which the 1= 980 United Nations Convention on Contracts for the International Sale of Goods (“CISG”) would otherwise apply, the rights and obligations of t= he parties under the Agreement shall not be governed by the provisions of the CISG.      

G. All contractors must comply = with local, state, and federal environmental, health, and safety (EHS) regulatio= ns and Engineered Solutions’ EHS policies and procedures.

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(Rev.04-2= 008)

Once these Terms and Conditions are accepted, they shall apply to all transactions for Items.

You may want to print t= his Agreement for your reference.

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