Purchase Order Terms and Conditions
1. Definitions:
“Order” means these Purchase Order Terms and Conditions (these “T&Cs”), together with the Purchase Order to which they are physically or electronically attached and any other document incorporated by reference or attached to such Purchase Order. “Goods” means any goods described on the face of this Order.
2. Acceptance; No Additional Terms:
This Order forms a contract between E-Circuit Motors, Inc. as the purchaser of the Goods (“ECM” or “Purchaser”) and the entity identified on the face of this Order as the seller of the Goods (“Seller”) for the sale of the Goods, subject to the provisions of this Order. These T&Cs govern this Order. Unless accepted earlier, shipment of any Goods constitutes Seller’s acceptance of this Order (including these T&Cs), regardless of whether Seller has signed or acknowledged this Order. No other terms in any document given by Seller shall in any way govern this Order, modify or supersede any of the terms of or otherwise have any effect on this Order, or be binding on Purchaser. ECM hereby expressly rejects all such other terms and the absence of any objection by ECM to any such terms after receiving them will not constitute consent or agreement to any such term on the part of ECM. If this Order is issued pursuant to an existing agreement between ECM and Seller (the “Existing Agreement”), then the provisions in the Existing Agreement will prevail over these T&Cs where expressly indicated. The terms on the face of this Order will govern over these T&Cs, in the event of a conflict between such terms.
3. Quantities:
Quantities will be as set forth on the face of this Order.
4. Schedule:
Seller shall deliver the Goods in accordance with the schedule set forth on the face of this Order (the “Schedule”) or as otherwise agreed between Seller and Purchaser in writing. Timely delivery of all Goods under this Order is of the essence. ECM has the right to reject any early delivery of Goods. ECM shall have the right to reschedule and/or cancel all Orders. The failure or delay of either party to perform any obligation under this Order by reason of earthquake, flood, fire, acts of God, riots, wars, terrorist incidents, or acts of government, each of which are beyond such party’s reasonable control (“Force Majeure”), shall not be deemed to be a breach of this Order, provided the party so prevented from complying herewith shall (a) have provided notice of such event to the other party as soon as practicable (including an explanation of the Force Majeure and its cause and status), (b) have used reasonable diligence to avoid such Force Majeure or ameliorate its effects, and (c) continue to take commercially reasonable actions to comply as fully as possible with the provisions of this Order. ECM may terminate or modify this Order in the event of any Force Majeure affecting either party’s performance under this Order. In the event of any delay in the Schedule not caused by Force Majeure, Seller will notify Purchaser immediately of such delay and of a new proposed schedule, which will be subject to Purchaser’s acceptance. If ECM does not accept the new proposed schedule, the initial Schedule will remain binding on Seller, and ECM may (a) require Seller to expedite the shipment of the Goods by means selected by ECM or (b) terminate this Order, in whole or in part, and obtain replacement goods or services from alternative suppliers. Seller will be solely responsible for the cost of the expedited shipment of the Goods and any costs or damages incurred by ECM in connection with the delayed Goods or Services, including the difference between the cost of replacement goods or services from alternative suppliers and the Price of the delayed Goods or Services and for any other cost or damages incurred by ECM in connection with the delay. Seller shall allocate any shortage of Goods proportionately among Seller’s obligations to ECM under this Order and to Seller’s other regular customers then under contract.
5. Price:
The unit price on this Order (the “Price”) constitutes the entire compensation for the Goods, unless specifically stated otherwise on the face of the Order, and includes any charges for labor, technical and professional services, materials, overhead, profit, packaging and preparation for shipment, loading, freight, insurance, transportation and all federal, state and local fees, tariffs, duties, levies, and taxes (exclusive only of any U.S. sales or use taxes). Unless otherwise provided for in the Delivery Term (as defined in Section 9), ECM will not be responsible to Seller for any charges other than the Price and any U.S. sales or use taxes.
6. Invoices:
Seller shall issue an invoice to ECM with each shipment of Goods. Seller shall not invoice, and ECM shall not be responsible for the payment of, any amounts that are invoiced more than 30 days past the date of delivery of the Goods to which such amounts apply. Each invoice shall be accompanied by all required documentation necessary to support all charges. Seller shall include any freight cost as a separate line item on, and shall attach a copy of the freight bill to, the invoice. Seller shall identify sales and use taxes, applicable rebates and discounts separately on each invoice. Seller shall separately state charges for any services from charges for Goods on each invoice. Any invoice submitted to ECM in an improper format or without the required documentation will be returned unpaid to Seller for correction and resubmission.
7. Payment:
ECM will pay all undisputed and properly documented invoices in accordance with the payment terms set forth on the face of this Order. If no payment terms are designated on the Order, payment terms shall be net sixty (60) days from date of delivery of Goods. ECM may withhold payment of any amounts it disputes in good faith. No payment by ECM of any invoice will be deemed ECM’s acceptance of the Goods described on the invoice.
8. Packing and Marking:
Seller shall package all Goods shipped under this Order in accordance with the requirements in this Order, or, if requirements are not specified, in accordance with standard commercial practices customary for similar shipments. In each master carton or container in which Goods are shipped, Seller shall include a bill of lading, and packing list indicating the Order number, description, quantity, ECM item numbers, and other identifying information corresponding to the information in this Order. Seller shall clearly mark all packages in accordance with all applicable laws and shall label each unit of the Goods with the country of origin, weight, and name of manufacturer. Seller shall ensure that a receiving document/proof-of-delivery is issued to ECM for any shipment made to a third-party location. All costs, fines or penalties incurred or assessed due to improper packing or marking will be Seller’s responsibility, and, if paid by ECM, will be deducted from amounts owed to Seller.
9. Delivery:
Without ECM’s prior written consent, the Goods may not be manufactured, packaged, stored, sampled, tested at or shipped from any location other than Seller’s facility identified on the face of this Order or in the Specifications. Seller will deliver the Goods at the place of delivery stated on the face of this Order in accordance with the applicable Incoterms® 2020 delivery term and any other stipulated delivery terms stated on the face of this Order (the “Delivery Term”). Risk of loss of the Products will transfer from Seller to ECM in accordance with the Delivery Term. Title to the Goods will transfer from Seller to ECM at the time that risk of loss of the Goods transfers pursuant to the preceding sentence. If no terms are identified, Goods will be shipped FOB delivery point (if within US) or FCA delivery point (if from outside US) with risk of loss transferring at delivery point.
10. Inspection:
Seller shall make the Goods and the place of manufacture of the Goods available for audit, review, inspection and testing by ECM and its designees at reasonable times either before or after acceptance of the Goods. ECM shall have the right, but not the obligation, to inspect all Goods at the final destination, and all Goods will be subject to acceptance by ECM. ECM’s acceptance of any Goods will not be deemed evidence that such Goods conform to this Order, including the Specifications, and will not be conclusive as to latent defects, fraud or any other similar issue. Inspections will not relieve Seller of its obligation to provide Goods that comply in all respects with the requirements of this Order, including the Specifications. Acknowledgment of receipt will not constitute acceptance. ECM may inspect Goods that are delivered in quantity by sampling; except that such sampling will not constitute acceptance of all such Goods as a unit. If ECM determines, in its sole discretion, that any Goods are Nonconforming Goods or otherwise fail to conform to this Order, ECM may, in its sole option, reject all or part of any shipment that contains such Goods.
11. Manufacturing Requirements:
For any Goods sold by Seller to ECM, Seller certifies and agrees to the following:
a) Compliance. All Goods are manufactured, labeled, packaged, shipped, and delivered in compliance with all applicable federal, state, local and foreign laws, rules, regulations, standards, orders and directives of all locations in which the Goods are manufactured, delivered and sold
(including the location of the sale to Purchaser).
b) Human Rights Standards. No Goods are manufactured or produced wholly or in part by (i) prison labor or forced labor under threat of penalty for nonperformance; (ii) the work environment complies with all applicable laws and requirements of local laws pertaining to child labor and the wage and hour laws of the country of manufacture.
12. Change Orders:
No change orders will be accepted to the Purchase Order without prior approval by ECM. Change orders requests shall be provided in writing to ECM for review and acceptance. Work should not begin on additional scope until approval has been received in the form of a revised Purchase Order.
13. Warranties:
Seller represents, warrants and covenants that (a) all Goods delivered under this Order will (i) conform strictly to the technical descriptions, guidelines, specifications, the applicable specifications for raw materials or packaging and co-manufacturing, and other requirements communicated by ECM to Seller (the “Specifications”), (ii) be free from defects in materials, workmanship, and design, (iii) be fit for their intended purpose, (iv) be of first quality and made of new materials and components, and (v) be manufactured and shipped in accordance, and will conform in all respects, with all applicable Laws, (b) title to all Goods will be good, and its transfer rightful, and that the Goods will be free from all security interests, claims, demands, liens and other encumbrances, and (c) any services performed under this Order will (i) be performed in a good, prompt and diligent manner and in strict accordance with all conditions and requirements contained in this Order and (ii) reflect the level of skill, knowledge and judgment required or reasonably expected of suppliers performing comparable services. If ECM discovers that any Good or Service fails to conform to any the above warranties (as applicable, a “Nonconforming Good” or “Nonconforming Service”), ECM shall give Seller written notice of the nonconformity within a reasonable time after discovery. Seller, at ECM’s option and at Seller’s sole expense, shall promptly retrieve Nonconforming Goods and (y) repair, replace (by expedited shipment, upon ECM’s request) or otherwise remedy any Nonconforming Good or re-perform any Nonconforming Service, so that it conforms to the above warranties, or (z) refund to ECM the Price of the Nonconforming Good or Nonconforming Service. If Seller is unable to remedy such nonconformity during a time period consistent with ECM’s reasonable requirements, ECM may undertake to remedy the nonconformity, and in such case, Seller shall reimburse ECM for any reasonable costs ECM incurs in excess of the Prices for such Good or Service that would have been due Seller under this Order and may terminate this Order for cause under Section 23. Seller shall assign to ECM all applicable warranties extended to Seller with respect to all Goods, or portions thereof, not manufactured by Seller; provided, however, that Seller’s extension of such warranties shall not relieve Seller of its obligation to repair or replace any Nonconforming Good.
14. Non-Infringement:
Seller represents, warrants and covenants that neither the Goods or the manufacture (including any manufacturing method), use, importation, sale or offer for sale of the Goods will infringe or misappropriate any proprietary, intellectual property or other rights of any third party. If any Goods, or ECM’s use of any Goods, is held to constitute any such infringement or misappropriation and its use by ECM is enjoined, Seller, at no cost to ECM, shall procure for ECM the right to continue using the Good or Service, as applicable, or provide ECM with a substitute Good or Service conforming to this Order.
15. Compliance:
Seller warrants that it is and will remain in full compliance with all applicable laws, regulations, codes, sanctions, orders, rules and ordinances of federal, state, provincial and municipal government bodies and agencies (“Laws”) and Seller has not and will not engage in any activity, practice, or conduct that would constitute an offense under those Laws. Without limiting the generality of the foregoing, Seller also warrants that it is and will remain in full compliance with all applicable Laws relating to anti-bribery and anti-corruption in the jurisdictions in which it operates. Seller acknowledges that it has in place procedures adequate to ensure compliance with these Laws by its officers, employees, agents and any other third party or person associated with Seller in the performance of this Order. In relation to this Order, Seller further agrees that it shall not make, offer, or promise to make any payment or transfer anything of value, directly or indirectly, to any third party knowing, or suspecting, that such third party will give the payment, or a portion of it, to any entity or individual for any improper benefit.
16. Confidentiality:
(A) CONFIDENTIAL INFORMATION: Each party (the “Receiving Party”) must keep strictly confidential and must not disclose, or use for any purpose other than the fulfillment of its obligations under this Order, any of the other party’s or its Affiliates’ (the “Disclosing Party”) Confidential Information. “Confidential Information” means the terms and existence of this Order, any and all technical and commercial information and research, customer and vendor lists, data, financial information, and any other proprietary or non-public information whether or not marked as
“Confidential” as well as any information that is developed based on that information. “Affiliate” means any present or future company that, directly or indirectly, controls, is controlled by or is under common control with a party. In the event of conflict between this Section 16 and an existing non-disclosure agreement between the parties, this Section 16 shall control.
(B) EXCEPTIONS: Confidential Information does not include information that: (a) is public, so long as it did not become public due to a breach of this Order or any obligation of confidentiality; (b) is known by the Receiving Party prior to its disclosure by the Disclosing Party; (c) is independently developed by the Receiving Party; or (d) it was disclosed by a source who does not have an obligation to treat the information as confidential. The Receiving Party must prove the existence of any of the foregoing exceptions. Personally identifiable information remains Confidential Information, even if it qualifies as one of these exceptions. If the Receiving Party is required by law to disclose any Confidential Information, it agrees to provide the Disclosing Party with notice of the request(s) at least ten days prior to disclosure of any Confidential Information.
(C) REPRESENTATIVES: Any person to whom the Receiving Party discloses Confidential Information must be subject to confidentiality obligations similar to the obligations in this Order. Receiving Party will be liable for any breach of this Order by any person to whom it discloses Disclosing Party’s Confidential Information.
(D) PROTECTION OF CONFIDENTIAL INFORMATION: The Receiving Party will use the same measures to protect Disclosing Party’s Confidential Information as it uses to protect its own information of a similar nature. Receiving Party will use at least a reasonable standard of care.
(E) NOTICE OF DISCLOSURE: The Receiving Party will notify the Disclosing Party immediately if it discovers any inadvertent disclosure or unauthorized use of the Disclosing Party’s Confidential Information, and will promptly take reasonable steps to prevent any further disclosure or unauthorized use.
(F) DESTRUCTION OF INFORMATION: Upon Disclosing Party’s request, the Receiving Party will promptly return or destroy all Confidential Information (in all forms) of the Disclosing Party and certify in writing that it has destroyed everything.
(G) PUBLICITY: Seller will not use ECM’s name or trademarks, nor the fact that Seller is performing services for ECM, in any press release, media statement, annual report, product packaging, stationary, print literature, advertising, websites, or other public communication without ECM’s prior written consent. Additionally, neither party will use the name or trademarks of the other party or its Affiliates in a manner that disparages or portrays the other party, or its Affiliates, or their products or services in a false, competitively adverse or poor light.
17. ECM Property:
Seller agrees that nothing in this Order, nor in the disclosure of ECM Confidential Information, will convey to Seller or any third party any right, title or interest in or to any proprietary or intellectual property right of ECM, including trade secrets, inventions and patent rights. Seller shall respect all such rights and shall not make, use or sell any materials reflecting any such rights for any purpose other than to fulfill this Order, without ECM’s express written permission. All drawings, blueprints, photographs, sketches, software (in source code and object code format), Specifications, plates, cylinders, electrotypes, models and other materials (the “Materials”) developed or prepared by Seller for the purpose of, or in the course of fulfilling, this Order shall belong to ECM (the “Developed Materials”) and all Developed Materials that are works of authorship will be deemed
“works made for hire” within the meaning of the copyright laws of the U.S. and similar laws of other jurisdictions. ECM will own all right, title and interest in and to all such Developed Materials, including any “works made for hire.” Seller hereby irrevocably assigns to ECM, and shall require its employees, subcontractors and agents to assign to ECM, all rights, title and interest, including any intellectual property rights, in and to any of the Developed Materials. To the extent ECM or its agents provide to Seller any Materials, such Materials shall remain ECM’s property (all such materials, together with the Developed Materials, the “ECM Materials”). ECM Materials may not be used for or disclosed to any non-party without ECM’s prior written consent. Seller agrees to execute, and shall cause Seller personnel to execute, any documents or take any other actions as may reasonably be necessary, or as ECM may reasonably request, to evidence, perfect, maintain and enforce ECM’s ownership of any Materials. Upon ECM’s request, Seller shall provide, or return to, ECM all ECM Materials, including any copies made. Seller may, however, retain one copy of such ECM Materials for record purposes.
18. Indemnification:
Seller will indemnify, hold harmless and, upon ECM’s request, defend ECM, its Affiliates and their respective employees, officers, directors, agents, successors and assigns from and against all liens, encumbrances, claims, demands, losses, damages, liabilities and expenses (including reasonable attorneys’ fees) to the extent arising out of or relating to (a) Seller’s breach of any provision of this Order, (b) the negligence, willful misconduct or dishonest or fraudulent acts or omissions of Seller or its employees, agents or subcontractors, and (c) any allegation by a third party that any portion of the Goods or the manufacture (including any manufacturing method), use, importation, sale or offer for sale of the Goods infringes, misappropriates or otherwise violates such third party’s proprietary, intellectual property rights or other rights of such third party.
19. Recall:
ECM will have the sole right, exercisable in its discretion, to initiate and direct the scope, breadth and depth of any recall, market withdrawal, product correction or advisory safety communication, and any and all communications or public statements concerning such an action, including communications with government regulators that involve the Goods (once title in the Goods passes to ECM) or any further finished products that are made from or otherwise incorporate the Goods (a “Recall”). At ECM’s option, ECM may direct Seller to, and upon such direction Seller will, conduct any Recall. Seller, at its expense, shall fully cooperate and take all such steps as ECM reasonably requests to implement any Recall in a timely and complete manner. All actions taken by Seller in connection with any Recall shall comply fully with applicable laws. Seller will bear all costs and losses associated with any Recall unless and to the extent the Recall is caused by ECM’s negligence, in which case Seller will bear only its applicable portion of such costs.
20. Insurance:
Unless otherwise noted within this Order, Seller shall maintain at its sole expense insurance sufficient to cover the risks set forth herein. Seller shall furnish to ECM certificates of insurance evidencing that all required insurance coverage is in effect and otherwise complies with the requirements of this Order.
21. Records and Audits:
Seller shall maintain complete financial records and accurate documentation relating to the performance of this Order during the performance of, and for three years after final payment under, this Order or longer if otherwise required by governmental authorities with jurisdiction over Seller. ECM or its designee has the right (but not the obligation) to audit and inspect Seller’s records with respect to amounts invoiced to ECM and Seller’s compliance with the provisions of this Order. This right extends for three years after final payment under this Order. If an audit or inspection reveals an error in the amounts charged to ECM or paid to Seller, then an appropriate adjustment shall be made within 30 days by either Seller or ECM, as applicable. ECM shall pay for any audit or inspection unless such audit or inspection is conducted subsequent to Seller’s default or overcharge, in which case Seller shall pay for all audit or inspection costs incurred by ECM. Seller shall pay all expenses incurred by Seller in supporting the audit and inspection.
22. Termination for Convenience:
ECM may terminate this Order, in whole or in part, at any time, effective immediately upon written notice to Seller or upon such later date as set forth in such notice. Seller shall discontinue work under this Order immediately upon the effectiveness of such termination and shall take all steps necessary to protect the work completed. At ECM’s election, Seller shall deliver all or any portion of the Goods completed, with all warranties, or dispose of such Goods as ECM may reasonably direct. Upon such termination, Seller will be entitled to (a) the Price for all conforming Goods delivered and Services performed prior to such termination and (b) reimbursement of all reasonable, documented costs actually incurred by Seller prior to such termination in connection with the Services and Goods (except with respect to any Goods that are in Seller’s standard stock). Seller will not be entitled to any unabsorbed overhead or lost profits with respect to any Services not performed or Goods not completed or completed but not delivered to ECM.
23. Termination for Cause:
ECM may terminate this Order, in whole or in part, effective immediately upon written notice to Seller or upon such later date as set forth in such notice, if Seller (a) fails to cure a breach of this Order within 10 business days of Seller’s receipt of notice of such breach from ECM (with no cure period if such breach is incapable of cure); (b) gives ECM reasonable cause to doubt Seller’s ability to deliver the Goods in accordance with the Schedule; (c) notwithstanding clause (a) of this Section 23, fails to deliver any Goods in accordance with the Schedule (unless excused as Force Majeure); or (d) suspends or ceases a material portion of its business activities, fails, or admits its inability, to pay its debts as they become due, files a voluntary petition in bankruptcy, is declared bankrupt, makes an assignment for the benefit of its creditors or suffers the appointment of a receiver or a trustee of its assets. Upon any such termination, ECM will have no further liability under this Order except (i) with respect to any non-termination portion and (ii) to pay for conforming Goods delivered and conforming Services performed prior to such termination.
24. Effect of Termination:
Upon any termination of this Order, ECM shall have the right, but not the obligation, to purchase all or any portion of Seller’s materials, work in process, finished Goods and tooling allocated to this Order (or terminated portion thereof) at the lesser of Seller’s costs, or the fair market value, of such items.
25. Miscellaneous:
This Order will be governed by and subject to the laws of the state of Massachusetts without regard to conflict of laws principles. The 1980 United Nations Convention on Contracts for the International Sale of Goods or any version thereafter shall not apply to this Order. No course of performance, course of dealing, or usage of trade shall be applicable to this Order. Any legal action arising under this Order or relating hereto shall be resolved exclusively in the state or federal courts located in Middlesex County, Massachusetts, as applicable, and both parties hereby irrevocably consent to the exclusive jurisdiction of such courts for such actions. The word “including” and words of similar import as used in this Order shall mean “including, without limitation.” Unless otherwise stated on the face of this Order, all invoices and payment obligations under this Order will be in United States Dollars. All representations, warranties, indemnities, confidentiality obligations, rights and remedies of ECM and any other provision hereof that by its express terms or by implication is to survive will survive the termination or completion of this Order. Seller shall not assign, subcontract or otherwise delegate any of its rights or obligations under this Order without ECM’s prior written consent. Any such purported assignment, subcontracting or delegation in violation of the foregoing shall be void, and in such event, ECM may immediately terminate this Order without payment or other penalty. Seller is an independent contractor for all purposes hereof, and nothing herein shall be deemed to constitute a partnership or joint venture between the parties. The contract evidenced by this Order is not intended to be one of hiring under the provisions of any workers’ compensation or other laws and shall not be so construed. Each provision of this Order is severable and if any provision is found to be invalid, illegal or unenforceable for any reason, the rest of this Order will remain valid and enforceable. ECM’s rights and remedies under this Order are cumulative and in addition to all other rights and remedies that may be available to ECM under this Order, at law and in equity. ECM’s failure to enforce any provision of this Order will not prevent ECM from later enforcing such provision. If ECM waives Seller’s breach of any provision of this Order, such waiver will not be deemed a waiver of a later breach of such provision. This Order binds the parties, as well as their legal representatives, successors and permitted assigns. Amendments to this Order shall be in writing and either signed by both parties or agreed to by both parties through the electronic system used by ECM. This Order and any Existing Agreement constitute the entire agreement of the parties concerning the subject matter of this Order and supersede any prior or contemporaneous agreements or understandings between the parties concerning the same subject matter.
26. Deterioration:
The Seller shall protect all Goods supplied from deterioration or contamination during transportation or storage. The Seller shall consult with the Purchaser on the most appropriate storage conditions for the Goods supplied.
27. Purchaser-Issued Material:
When the Purchaser for purpose of the Contract furnishes any materials to the Seller for use in manufacture of the Goods, title to any such material shall remain with the Purchaser. Any risk regarding such material is borne to the Seller. The Seller shall store any such material safely and separately from its own and other persons material. The Seller shall maintain all such material in good condition, without taking into account normal wear in the case of samples and the like. Any such material shall be used only for the purpose of the Order. Any excess material is disposed of at the Purchaser’s discretion. Excessive use of such material due to poor performance or negligence of the Seller is covered by the Seller, without prejudice to any other right of the Purchaser. Upon completion or termination of the Order, the Seller shall immediately return to the Purchaser all unused material.
28. Anti-corruption Clause:
The Purchaser and Seller undertake to strictly respect the zero tolerance level of corruption in their interaction. If in the process of conclusion or implementation of the Order, a breach of this clause shall occur, it will be considered a material breach of the Order and, without prejudice to its other rights and remedies in respect of such breach, the Purchaser shall be entitled to abrogate or terminate the Order as a result of such breach immediately.
29. No Third Party Benefit:
The provisions stated herein are for the sole and exclusive benefit of the parties hereto, and confer no rights, third party benefits or claims upon any person or entities not a direct party hereto.
30. Non-Solicitation:
During the term of this Order and for a period of one (1) year after termination or expiration, Seller shall not, directly or indirectly, solicit for employment or hire or contract with an employee of ECM or any ECM customer who becomes known to Seller in connection with performance under this Order and is being hired for the same or similar position or in a capacity to oversee or manage or ECM’s customer.
