TOPCON POSITIONING SYSTEMS, INC.
PURCHASE ORDER TERMS AND CONDITIONS
1. The Parties. “TPS” means Topcon Positioning Systems, Inc. and those subsidiary and affiliated entities which may be designated at any time by TPS. “Seller” means the entity to whom the applicable purchase order is addressed, or who performs pursuant to the purchase order and ships TPS components or finished goods (including raw materials) (the “Goods”).
2. Purchase Order. TPS may issue to Seller a purchase order in any form acceptable to TPS, which form TPS may change from time to time (the “PO”).
3. Acceptance of these Terms. Any acknowledgement and/or commencement of performance by Seller under the PO constitutes a complete acceptance of these terms and conditions (the “Terms”). Seller must perform in accordance with these Terms. TPS OBJECTS TO ANY ADDITIONAL OR DIFFERENT TERMS PROPOSED BY SELLER IN ANY MANNER AND AT ANY TIME.
4. Packing and Shipment.
a. Unless otherwise specified by TPS in writing, all Goods shall be packed, packaged, marked, and otherwise prepared for shipment in a manner which is: (i) in accordance with good commercial practice and ISTA 1G/H standards; (ii) acceptable to common carriers for shipment at the lowest rate for the particular Goods and in accordance with all tariffs, governmental laws and regulations; and (iii) adequate to insure safe arrival of the Goods at the destination designated and for storage and protection against weather. Seller shall mark all containers with necessary lifting, handling and shipping information and also PO numbers, date of shipment and the names of the consignee and consignor. An itemized packaging sheet must accompany each shipment.
b. TPS, at its option, may refuse or return (at Seller's expense) any shipments in excess of the amount ordered, or in advance of the schedule, in the PO. Any such shipments which TPS elects not to take will be held at Seller's risk and expense while awaiting Seller's shipping instructions.
5. Warranties. (a) Seller warrants that all Goods delivered to TPS, as well as Goods corrected under this warranty: (i) shall be free from defects in workmanship, materials and manufacture; (ii) comply with and conform to (1) the requirements of these Terms, (2) any drawings or specifications incorporated herein or submitted to, or approved by, TPS, (3) any samples furnished by Seller, (4) documentation and specifications published by Seller, and (5) any response by Seller to a request for proposal or similar inquiry by TPS; (iii) comply with all applicable laws and regulations and generally recognized standards and codes; (iv) are new and not counterfeit, and (v) where design is Seller's responsibility, be free from defects in design. Seller also warrants that all services shall be provided at the highest professional standards. The foregoing warranties are in addition to all other warranties, whether expressed or implied, and all warranties shall survive any inspection, acceptance, and payment by TPS. All warranties shall benefit and be enforceable by TPS, its distributors and end users of the Goods. Seller warrants that, if applicable to the PO, the software and all related software Goods and services will: (i) be free from defects in design, workmanship and materials which prevent them from being used for their intended purpose; (ii) perform in accordance with the documentation and specifications supplied to TPS; (iii) be free of all computer viruses and have undergone virus checking procedures in accordance consistent with industry standards; and (iv) will perform error free and without interruption. This warranty shall include any releases, revisions or enhancements. Seller warrants that it has the full power, title, right and authority enter into, and abide by, these Terms. Seller warrants that neither the Goods nor their content, promotion, advertisement, sale, distribution, use or other disposition, nor any service, will infringe or violate any copyright, patent, trade secret, trademark, right of publicity or privacy or other personal proprietary or intellectual property right of any third party or contain any defamatory, libelous or obscene matters. Seller warrants that all Goods delivered to TPS shall be free and clear of all liens and encumbrances and that TPS shall have the quiet enjoyment and free and clear title thereof. Seller warrants that it complies with all applicable local, national, and international standards and regulations for environment, health, and safety in the workplace, including the minimum recommended standards of basic labor rights of the United Nations International Labor Organization (“ILO”), including freedom of association, right to organize, abolition of forced labor, elimination of child labor, and equality and anti-discrimination rights, as found at www.ilo.org. (b) If TPS requires repairs for the Goods either after the expiration of the warranty period, or during the warranty period for reasons not attributable to Seller defect(s) or breach of warranty, Seller will provide such repairs at its current service hourly rates and will sell to TPS any spare parts required for such repair. Any warranty provided by Seller which is not inconsistent with these Terms shall commence upon delivery of the Goods to the end user of such Goods and in any event, shall at a minimum, extend for 3 months beyond the warranty provided by Seller as a reasonable estimate of the time TPS needs to sell such Goods to its end user. (c) Seller shall execute and comply with the TPS Supplier Quality Agreement (QAF-004). (d) If applicable, Supplier shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, gender identity, sexual orientation, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability. (e) Seller shall comply with the Topcon Supplier Code of Conduct available at https://www.topconpositioning.com/sites/default/files/topcon_supplier_code_of_conduct_v5.pdf.
6. Inspection. (a) Seller shall provide and maintain an inspection system acceptable to TPS. All Goods shall be subject to inspection and test by TPS at all times and places during and after the period of manufacture and prior to acceptance. If inspection or test is made by TPS at Seller's premises, Seller, without additional charge, shall provide reasonable facilities and assistance for the safety and convenience of TPS’S inspectors. No inspection or test shall relieve the Seller from responsibility for defects or other warranties in these Terms. (b) Notwithstanding any prior inspections or payments, all Goods shall also be subject to inspection and acceptance at TPS’S plant within a reasonable time after delivery. Seller shall maintain complete and accurate records of all inspection work, which records shall be available to TPS during the performance of this PO and for 5 years thereafter. (c) TPS may accept or reject shipments in accordance with its established lot inspection procedures. Where rejection of a shipment is based on TPS’S normal inspection level, then TPS at its option, and at Seller's cost, may inspect up to 100% of such shipment. Seller will maintain a quality system that will allow no more than 2% defective Goods within the warranty period. TPS will have the right to inspect the Seller’s facility to insure compliance with quality requirements.
7. Changes. TPS may at any time by written notice to Seller and without notice to any third party, terminate or suspend performance hereunder and under the PO, increase or decrease the ordered quantities, or make changes in any one or more of the following: (a) applicable drawings, designs or specifications; (b) method of shipment or packing; (c) place of delivery; and/or (d) schedules, including time of delivery. If any such change causes a decrease in the cost of, or the time required for performance of this PO, an equitable adjustment shall be made in the order price or delivery schedule, or both, as reasonably determined by TPS. Upon receipt of such notice from TPS, Seller shall take such action as TPS may direct and TPS agrees to accept an equitable settlement for any such termination, cancellation, or suspension as reasonably determined by TPS, which settlement shall in no event exceed the remainder of the purchase price stated in this PO. Unless specifically authorized by TPS, TPS shall have not obligation or liability for Seller’s inventory or work-in-process under any circumstances.
8. Changes in Process or Method of Manufacturing. Seller will not invoke any changes in process or method of manufacturing during the term hereof without TPS’s written consent. Any contemplated changes in process or method of manufacturing will be submitted to TPS so TPS has reasonable opportunity to evaluate such changes.
9. Delivery. Time is of the essence in regard to the performance by Seller. Seller shall be liable for all excess transportation or other charges or costs resulting from failure to follow TPS’s shipping instructions and delivery schedules. No partial or complete delivery shall be made unless TPS has given prior written approval.
10. Shipment. For all deliveries within the U.S., Goods shall be shipped FOB TPS’s Dock (UCC). For all deliveries outside the U.S., Goods shall be shipped Free Carrier (FCA) TPS’s Dock (INCOTERMS 2020). Seller shall contact TPS for method of shipment and routing instructions if no instructions have been provided with the PO. Title to and risk of loss of Goods shall pass to TPS upon receipt of the order by TPS’s authorized carrier or agent at the named delivery point.
11. Packaging. Packaging must be in accordance to TPS’s packaging specifications QAP-042.
12. Invoices. Seller must deliver written invoices to TPS including, at a minimum, the following information: TPS PO number, model number, description of Goods, sizes, quantities, unit prices, extended totals and manufacturing country of origin. Bill of Lading or other shipping documentation shall accompany each invoice. Payment of any invoice does not constitute acceptance or other waiver by TPS regarding the requirements of the PO. TPS may at any time set off any amount it owes to Seller against any amount owed by Seller to TPS. TPS may pay in United States dollars.
13. Taxes and Expenses. The prices in the PO shall include all applicable foreign, federal, state and local taxes and miscellaneous charges including but not limited to sales, gross receipts and use taxes, ad valorem (property) taxes, duties, customs, tariffs, forwarding agent's fees, imposts and surcharges (collectively, “Taxes”). All such Taxes shall be stated separately on the invoice. TPS shall have no obligation or liability for payment of such Taxes and Seller shall indemnify TPS against any liability for Taxes, including, collection, withholding, penalties and interest.
14. Cash Discounts. If Seller offers a discount for prompt payment, discounts will be computed from the latest of: (a) the scheduled delivery date; (b) the date of actual delivery; or (c) the date a properly filled out original invoice and packing list is received by TPS. Payment is deemed to be made, for the purpose of earning the discount, on the date of mailing of TPS’s check.
15. Default of Seller. If any Goods or services delivered hereunder do not fully meet the requirements of this PO or these Terms, TPS may in its sole discretion exercise one or more of the following remedies: (i) require the Seller to promptly correct, at no cost to TPS, any defective or nonconforming Goods and services by repair or replacement or re-performance, at the locations and times specified by TPS; or (ii) exercise any other remedies provided in sections 2-711 through 2-717 of the California Uniform Commercial Code. The foregoing remedies are in addition to all other remedies of law or in equity or under these Terms, for damages or otherwise. Claims by TPS under these Terms may be exercised at any time within the later of: (i) 5 years after final acceptance; or (ii) the latest time allowed by law.
16. Indemnity. Seller shall, defend, indemnify and hold TPS and its directors, officers, employees, agents and affiliates harmless from all claims, losses, demands, costs, judgments, damages, and expenses (including attorneys fees) which may be asserted against or be incurred by TPS whether direct or indirect, foreseeable or unforeseeable, resulting from any and all of the following: (i) injuries to any person or damage to any property, caused by the breach of Seller’s warranties or obligations under these Terms in connection with the furnishing of Goods covered by this PO, or because of any imperfection or defect in said Goods, or based upon any claim of product liability or strict liability in tort, or because of the failure or such Goods to be in accordance with the description of such Goods furnished or utilized by TPS, or because of the failure of such goods to be produced in compliance with the requirements of this PO or these Terms; (ii) any claimed infringement or violation of any copyright, patent, trade mark or other intellectual property right with respect to the Goods; (iii) any claimed breach of the warranties in Section 5; and/or (iv) from any act, omission or service of Seller or any of Seller's employees or agents. TPS agrees to reasonably notify Seller of a claim covered by this Section and to reasonably cooperate at Seller's expense in the defense thereof. This indemnification shall survive the termination of these Terms.
17. Limitation of Lability. TPS SHALL NOT BE LIABLE TO SELLER OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS, WHETHER ANY OF THE FOREGOING ARISE FROM CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, TORT OR STRICT LIABILITY, EVEN IF TPS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL TPS’S LIABILITY TO SELLER OR ANY THIRD PARTY EXCEED THE AMOUNT OF THE PURCHASE PRICE STATED ON THE ACCOMPANYING PO FOR THE GOODS IN DISPUTE. SELLER AGREES THAT THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION REPRESENTS A DELIBERATE ALLOCATION OF RISK.
18. Non-Disclosure of Confidential Matter, Publicity, TPS’s Equipment. Goods and services provided by Seller pursuant to TPS’s specifications or drawings shall not be offered or disclosed to others without TPS’s prior written authorization. The following items constitute confidential information of TPS: specifications, drawing, samples, and other data furnished by TPS; software and software-related Goods; all information on TPS’s method of doing business, its customers and business plans; the existence of these Terms, the PO and quantities and pricing hereunder; and all information marked “confidential,” “proprietary” or which should reasonably be considered confidential. All such confidential information shall remain TPS’s property, not be disclosed, be used only for purposes of this PO and be promptly returned to TPS upon request or immediately . upon termination of the business relationship between TPS and Seller. Any publicity regarding this PO (including pictures, descriptions or samples thereof) is prohibited except with TPS’s prior written approval. These confidentiality restrictions do not apply to information which has been discovered by Seller through no wrongful act or to information which is in the public domain at the time of disclosure to Seller or later becomes public domain information through no fault of Seller. If Seller is in possession of any equipment belonging to TPS (including test equipment), Seller must immediately return such equipment to TPS upon TPS’s request, even if TPS has not fully satisfied all payments due and owing to Seller. If Seller breaches this clause, TPS shall be entitled to liquidated damages of $10,000 per day for each day such equipment is held by Seller after TPS’s request for the return of the equipment.
19. INSURANCE. Without limiting Seller’s obligations or indemnities in these Terms, Seller shall maintain insurance policies covering Commercial General Liability, Auto, Workman’s Compensation and Professional Liability, at its sole cost and expense, written by companies with an A.M. Best’s Insurance Guide rating of not less than A VII in the most recent issue or similar publication. The Commercial General Liability and the auto policies shall each have limits of liability not less than $1,000,000 per occurrence (without any deductible and not be on a claims made basis). The General Liability policy shall include liability coverage for bodily injury or property damage (a) assumed in a contract or agreement pertaining to Seller’s business; and (b) arising out of Seller’s goods, services or work. The Auto insurance shall include coverage for all owned, non-owned and hired autos. Seller’s insurance shall be primary, and any applicable insurance maintained by TPS shall be excess and non-contributing. The above coverages, other than workman’s compensation, shall name TPS as an additional insured, and shall contain a severability of interest clause.
20. Miscellaneous.
a. Entire Agreement. These Terms are the exclusive and binding agreement between TPS and Seller. No modification of these Terms shall be effective unless in writing and signed by an officer of TPS. The PO and these Terms represent the entire agreement between the parties and supersede all prior representations, discussions, negotiations and agreements, whether written or oral. If TPS and Seller enter into a separately executed agreement modifying or superseding these Terms, the executed agreement shall control and supersede or modify any conflicting provisions in these Terms.
b. Waiver. The failure of TPS to enforce at any time any of the provisions of this PO, or to exercise any election or option provided in these Terms, or to require at any time performance by the Seller of any provision thereof, shall in no way be construed to be a waiver of such provisions, nor in any way affect the validity of these Terms or the PO or any part thereof, or the right of TPS thereafter to enforce each and every such provision. No acceptance, payment, inspection or failure to inspect, or approval of Seller's Goods or design or services, shall excuse Seller from any obligation or warranty, even if a defect, non-conformity or other deficiency could or should have been observed or detected. A waiver by TPS of any drawing or specification required for one or more of the Goods or a portion of the services shall not constitute a waiver of such requirements for the remaining Goods or services.
c. Notices. All notices to be given or served hereunder to Seller shall be effective upon receipt at the address appearing on the face of this PO, provided that notices to TPS specify TPS’s authorized buying agent and TPS’s PO number and are delivered via reputable overnight carrier with proof of delivery and a copy via e-mail.
d. Choice of Law. These Terms will be governed by and construed in accordance with the laws of the State of California, excluding California's conflicts of law provisions.
e. Choice of Forum; Attorney’s Fees. TPS and Seller hereby submit to the jurisdiction of, and waive any venue objections against, the Courts of the State of California, located in Alameda County, in any litigation arising out of this PO or these Terms. In any action or proceeding related to or arising out of this PO or these Terms, the prevailing party shall be entitled to its reasonable attorney's fees and costs.
f. Severability. If any part of these Terms is found invalid or unenforceable, that part will be amended to achieve as nearly as possible the same economic effect as the original provision and the remainder of these Terms will remain in full force.
g. Assignment. TPS may freely assign the PO or these Terms or any right or obligation hereunder. Seller may not assign the PO or these Terms or any right or obligation hereunder except upon the prior written consent of TPS.
h. Export. Seller agrees to comply with all relevant Export Control laws. Seller shall notify TPS in writing, before delivery of any Goods whether such Goods requires a license or are subject to any license in order to export the Goods from the U.S. or from any country where the Goods are delivered. Seller shall provide TPS all information that TPS needs to obtain such export licenses. Seller shall provide TPS with the export control classification number of any Goods provided pursuant to the PO other than Goods with classification number EAR99.