InSpire Holdings, Inc
STANDARD PURCHASE ORDER TERMS AND CONDITIONS
These Standard Purchase Order Terms and Conditions (“Agreement” or “Terms”) govern the purchase and sale of all products manufactured and sold to InSpire Holdings, Inc, a California corporation (“Buyer”) by a manufacturer (“Seller”). These Terms may only be waived or modified as provided herein.
- Acceptance and Terms and Conditions. The purchase of goods (“Goods”) hereunder is conditioned upon the terms and conditions of this purchase order (“PO”). These terms and conditions shall apply and are incorporated into every subsequent purchase PO from Buyer to Seller until superseded by later terms and conditions issued by Buyer. Acceptance by Seller shall be limited to the terms hereof and Buyer expressly rejects any additional or different terms stated by Seller in any prior or future offer, quotation or other expression in relation to the subject matter hereof. No other terms or conditions including, without limitation, Seller’s standard printed terms and conditions, on Seller’s proposal, PO acknowledgment, invoice or otherwise, will have any application to this PO or any transactions occurring pursuant hereto, unless specifically accepted in writing by Buyer. Seller shall comply with this PO and the terms and conditions set forth herein unless Seller takes written exception within three business days of receipt of this PO.
- Pricing. No extra charges of any kind will be allowed unless specifically agreed to in writing by the Buyer. All applicable taxes arising out of transactions contemplated by the PO will be borne by Seller except as otherwise specified by the parties in writing. If Seller reduces its prices for such Goods during the term of this PO, Seller shall correspondingly reduce the prices of Goods sold thereafter to Buyer under this PO. Seller warrants that it is selling at the lowest or most favorable prices that it offers to other Buyers for Goods of the same quality to that herein. Buyer will be entitled at all times to set off any amount owed at any time by Seller or any of its affiliates to Buyer or any of its affiliates against any amount payable at any time by Buyer in connection with this PO.
- Invoices, Payment Terms.
- Invoices. All invoices or receiving documentation must contain the following information: PO number, good or item number, description of each good or item, sizes, quantities, and unit prices and any other information as requested by Buyer. Each invoice must refer to one, and only one, PO.
- Payment Terms. Payment terms shall be Net 45 days from date of invoice with individual shipment billing by location. Buyer may, at Buyer’s option, make payment by bank transfer payable to a designated EFT or wire address.
- Delivery Terms. Delivery is not complete until Goods have been actually received and accepted by Buyer as set forth herein. Except for delays caused by Buyer or a force majeure (as defined herein), time is of the essence with respect to delivery under these terms. If, for any reason, Seller anticipates difficulty in complying with a required delivery date or meeting any other requirements in this PO, Seller shall immediately notify Buyer in writing, providing details of the anticipated difficulty in complying. If Seller does not comply with Buyer’s delivery requirements, in addition to such other rights and remedies it may have, Buyer may, in its sole discretion, (a) require delivery by the fastest way to meet the delivery dates in the PO at the sole expense of Seller, (b) submit a revised PO or (c) terminate this PO without liability to Buyer. Seller shall be liable to Buyer for all reasonable costs incurred by Buyer. This provision shall survive termination or expiration of this PO.
- Packaging: All Goods must be packaged in the manner specified by Buyer and shipped in the manner and by the route and carrier designated by Buyer. If Buyer does not specify the manner in which the Goods must be packaged, Seller shall package the Goods so as to avoid any damage in transit. If Buyer does not specify the manner of shipment, route, or carrier, Seller shall ship the Goods at the lowest possible transportation rates, consistent with Seller’s obligation to meet the delivery schedule set forth in this PO.
- Inspection. All Goods will be subject to inspection and test by Buyer at all times and places, including the period of manufacture and in any event prior to final acceptance. Final acceptance or rejection of the Goods will be made as promptly as practical after delivery except as otherwise provided in this PO, but failure to inspect and accept or reject Goods or failure to detect defects by inspection, will neither relieve Seller from responsibility for such Goods as are not in accordance with this PO nor impose liabilities on Buyer for them. Buyer’s payment for the Goods shall not constitute its acceptance of the Goods. Goods rejected and Goods supplied in excess of quantities ordered may be returned to the Seller at Seller’s expense. Payment, if any, made for any Goods rejected hereunder shall be promptly refunded by Seller. Seller will provide and maintain an inspection and process control system acceptable to Buyer covering the Goods ordered. Records of all inspection work by Seller will be kept complete and available to Buyer during the performance of this PO and for seven (7) years after Seller’s completion of this PO. If any of the Goods are found at any time to be defective in material or workmanship, or otherwise not in conformity with the requirements of this PO, including any applicable drawings and specifications, then Buyer, in addition to such other rights and remedies it may have by contract or by law or equity, at its sole discretion may reject and return such Goods at Seller’s expense, require Seller to inspect the Goods and remove nonconforming Goods and/or require Seller to replace nonconforming Goods with conforming Goods. If Seller fails to make the necessary inspection, removal, and replacement in a time and manner satisfactory to Buyer, Buyer may at its option inspect and sort the Goods; Seller will pay any related costs.
- Warranties. Seller warrants that all Goods supplied to Buyer under this PO shall be (a) free of any claim of any nature by any third person and that Seller shall convey clear title to Goods to Buyer, (b) of merchantable quality free from all defects in design, workmanship and materials, and shall be fit for the particular purposes for which they are purchased, (c) in compliance with all applicable laws, rules and regulations, and (d) manufactured and provided in strict accordance with the specifications, designs, drawings, or other requirements including performance specifications. Seller’s warranties shall extend for a time period equal to the timeframe extended by Buyer to its customers, but in no event less than twelve (12) months from Buyer’s receipt of conforming Goods or such greater period of time specified on the face of this PO. The warranties contained in this section are in addition to and are not be construed as restricting or limiting any warranties or remedies of Buyer, express or implied, which are provided by this PO or law. Any attempt by Seller to limit, disclaim or restrict any such warranties or remedies of Buyer, in any manner whatsoever shall be null, void, and ineffective. Inspection, test, acceptance, or use of the Goods in Buyer’s Units shall not affect the Seller’s obligation under Seller’s warranty, and shall survive such inspection, test, acceptance, and use. Upon notice from Buyer that Goods failed within the warranty timeframe, in addition to any rights or remedies Buyer may have under this PO or law, Seller shall reimburse Buyer for all direct or indirect costs incurred by Buyer as result of such failure including all repair and replacement costs and Seller shall replace such defective Goods at no cost to Buyer. Warranty failures shall be returned to Seller at Seller’s expense and at Buyer’s discretion. This provision shall survive termination or expiration of this PO.
- Default. Should Seller (a) (i) become insolvent, (ii) become unable to pay its debts as they mature, (iii) make a general assignment for the benefit of creditors, (iv) come under a suspension of payments, (v) have a receiver appointed for the whole or any substantial part of its assets or (vi) become in any way the subject of a bankruptcy petition, (b) have a change in ownership or management such that a competitor of Buyer gains an ownership or controlling interest in Seller, and/or (c) materially default in the performance of any provision of the PO, Buyer may terminate all or any part of this PO on written notice of default from Buyer specifying such failure. Seller will continue performance of this PO to the extent not terminated and will be liable to Buyer for any excess costs for such similar Goods. As an alternate remedy, and in lieu of termination for default, Buyer, at its sole discretion, may elect to waive deficiencies in Seller’s performance, in which case an equitable reduction in the PO price will be negotiated. The rights and remedies of Buyer provided in this section will not be exclusive and are in addition to any other rights and remedies provided by the Uniform Commercial Code, by law, at equity or under this PO.
- Indemnification. Seller shall indemnify and hold Buyer and its affiliates harmless and, on Buyer’s request, shall defend each of them from and against any or all third party claims, demands, litigation, or proceedings of whatever kind, whether based upon negligence, breach of express or implied warranty, strict liability, infringement of intellectual property rights, or any other theory, and from and against all direct, indirect, special, exemplary, incidental or consequential damages of every kind whatsoever, arising out of, by reason of, or in any way connected with the Goods, the design, manner of preparation, manufacture, construction, completion, or delivery or non-delivery of any Goods by Seller, any breach by Seller of any of its obligations hereunder, or any other act, omission or negligence of Seller or any of Seller’s employees, workers, servants, agents, subcontractors, or suppliers. Seller shall, on request, pay or reimburse Buyer or any other party entitled to indemnification hereunder for all costs and expenses, including attorneys’ fees, as incurred by Buyer or such other party in connection with any such claim, demand, litigation, proceeding, loss, or damage. In addition, for infringement claims, Seller will, at its own expense and at Buyer’s option, either procure for Buyer the right to continue using the allegedly infringing item, replace it with a non-infringing equivalent, or remove it and refund the purchase price and the transportation and installation costs thereof. This provision shall survive termination or expiration of this PO.
- Buyer’s Property. Tangible or intangible property of any nature furnished to Seller by Buyer or specifically paid for in whole or in part by Buyer, and any replacements or attachments, are the property of Buyer and, unless otherwise agreed in writing by Buyer, will be used by Seller solely to provide Goods to Buyer. Seller will not substitute any property or take any action inconsistent with Buyer’s ownership of such property. While in Seller’s custody or control such property will be held at Seller’s risk, will be kept insured by Seller at its expense for its replacement cost with loss payable to Buyer, and will be subject to removal at Buyer’s written request, in which event Seller will prepare such property for shipment and redelivery to Buyer in the same condition as originally received by Seller, reasonable wear and tear excepted, all at Seller’s expense.
- Buyer Changes. At all times Buyer will have the right to make changes to this PO, including changes to drawings, designs, configurations, specifications, quantities, methods of shipment or packing and delivery schedules or location of delivery. If any such changes cause an increase or decrease in the cost of or the time required for the performance of any work under this PO, an equitable adjustment will be made in the contract price or delivery schedule, or both, and this PO will be modified in writing accordingly. Nothing in this section, including any disagreement with Buyer as to any claimed adjustment, will excuse Seller from proceeding with this PO as changed. Any claim by the Seller for adjustment under this section must be in a detailed writing and delivered to Buyer within five (5) days after the date Seller receives notification of change. Any change will be authorized only by a duly executed amendment to this PO. Information, such as technical information or guidance provided to Seller by representatives of Buyer, will not be construed as a change within the meaning of this section.
- Seller Changes. Seller shall not make any changes in the specifications, physical composition of, or processes used to manufacture the Goods hereunder without Buyer’s prior written consent.
- Compliance with Laws. Seller represents and warrants that the Goods shall comply with all applicable laws, rules and regulations. Seller warrants that all Goods supplied to Buyer shall comply with, and Seller agrees to be bound by, all applicable foreign, United States federal, state and local laws, orders, rules, regulations, guidelines, standards, limitations, controls, prohibitions, or other requirements which are contained in, issued under, or otherwise adopted pursuant to such laws. From time to time, at Buyer’s request, Seller shall provide certificates to Buyer relating to any applicable legal requirements, in each case in form and substance satisfactory to Buyer.
- Confidential or Proprietary Information. Notwithstanding any document marking to the contrary, any knowledge or information that the Seller has disclosed or may later disclose to Buyer, and which in any way relates to the Goods covered by this PO will not, unless otherwise specifically agreed to in writing by Buyer, be deemed to be confidential or proprietary information, and will be acquired by Buyer, free from any restrictions. Seller will not transmit to Buyer any sensitive personal information, including, but not limited to, identified health information, financial information, social security numbers, biometrics or other personally identified or identifiable information of like sensitivity. Seller will keep confidential any technical, process, economic, or other information derived from drawings, specifications and other data furnished by Buyer in connection with this PO (in whatever form or format) and will not divulge, export, or use, directly or indirectly, such information for the benefit of any other party without obtaining Buyer’s prior written consent. Except as required for the efficient performance of this PO, Seller will not use such information or make copies or permit copies to be made of such drawings, specifications, or other data without the prior written consent of Buyer. If any reproduction is made with prior consent, this notice will be provided. Upon completion or termination of this PO, Seller will promptly return to Buyer all materials incorporating any such information and any copies, except for one record copy. Seller agrees that no acknowledgment or other information concerning this PO and the Goods provided will be made public by Seller without the prior written agreement of Buyer.
- Insurance. Seller will maintain Comprehensive General Liability (including Contractual Liability coverage insuring the liabilities assumed in these Terms), Automobile Liability and Employers’ Liability insurance with the following limits: (a) Worker’s compensation: Statutory in accordance with the state in which the services are being performed, (b) Employer’s Liability: in the amount of $1,000,000 each occurrence, (c) Commercial General Liability: with limits of $1,000,000 each occurrence and $1,000,000 aggregate, for bodily injury and property damage combined. The Policy will include the following coverage features: (i) blanket contractual liability, (ii) Products, (iii) completed operations, and (iv) independent contractors coverage, and (d) Umbrella or Excess Liability with limits of $5,000,000 each occurrence and aggregate for bodily injury and property damage limits as reasonably required by Buyer, as well as appropriate Workers’ Compensation insurance as will protect Seller from all claims under any applicable workers’ compensation and occupational disease acts. At Buyer’s request, Seller will furnish to Buyer a Certificate of Insurance completed by its insurance carrier(s) certifying that the required insurance coverage is in effect, with waiver of subrogation, naming Buyer as an additional insured, and containing a covenant that such coverage and will not be canceled or materially changed until ten (10) days after prior written notice has been delivered to the Buyer.
- Termination. Buyer may terminate all or any part of this PO for convenience at any time by written notice to Seller. Upon such termination, Buyer’s liability will be limited to reasonable termination charges mutually agreed by Seller and Buyer, provided that Seller must specify any proposed charges in writing within fifteen (15) days after termination.
- Assignment. Unless Buyer has provided prior written consent, any partial or complete assignment by Seller of right(s) or delegation of obligation(s), shall be void. Notwithstanding any permitted assignment, such assignment shall not relieve Seller of its obligations and liabilities hereunder.
- Use of Name; Advertising. Seller shall not use Buyer’s name, logo, trademark or any other proprietary information for any purpose whatsoever, including but not limited to any advertising and press releases, without the express prior written approval of Buyer. This provision shall survive termination or expiration of this PO.
- Liens. Seller shall pay for all labor, services, materials, equipment, parts, and other expenses incurred by it in connection with meeting Seller’s obligations, and shall indemnify and defend and hold Buyer harmless against all claims and liens arising out of Seller’s unpaid accounts. This provision shall survive termination or expiration of this PO.
- Seller’s Inventory. Buyer will have no obligation to request quotations or place POs with Seller, both of which will be in Buyer’s sole discretion. Buyer acting in its sole discretion will determine the actual quantity of Goods to be purchased. The quantity of Goods specified in forecasts supplied by Buyer from time to time, or otherwise, is an estimate only. Seller bears sole responsibility for managing Seller’s raw material, work in process, and inventory, and Buyer will have no liability with respect thereto (whether upon termination of this PO or otherwise) other than in connection with termination as provided herein.
- Ethical Business Conduct. Buyer is committed to a policy of fair, honest and ethical business practices and conduct, and to full compliance with all applicable laws and government regulations, and Seller hereby agrees to and accepts the foregoing policy as a governing principle of the purchase relationship. Buyer prohibits its employees from using their positions for personal financial gain, or from accepting any personal advantage from anyone under circumstances which might reasonably be interpreted as an attempt to influence the recipients in the conduct of their official duties. Seller and its employees shall not, under circumstances which might reasonably be interpreted as an attempt to influence the recipients in the conduct of their duties, extend any gratuity or special favor to employees of Buyer.
- Freight Terms. All shipments of Goods by Seller are FOB Seller and/or point of origin, freight prepaid by Buyer as part of Buyer’s PO. Delivery of the Goods to the carrier at the point of origin shall constitute delivery to Buyer and title and risk of loss shall thereupon pass to Buyer.
- Foreign Purchases. Seller agrees that Buyer will not be a party to the importation of the Goods, that the transaction(s) represented by this PO will be consummated subsequent to importation, and that Seller will neither cause nor permit Buyer’s name to be shown as ”importer of record” on any customs declaration and that Seller will comply with all applicable laws, rules and regulations governing foreign purchases and importation.
- Force Majeure. Delay or non-performance of any obligation herein shall be excused if the cause of the delay is beyond the control of the party seeking to be excused from performance, is not attributable to such party’s negligence, and could not have been avoided or overcome. The non-performing party will notify the other party as soon as possible and will use its best efforts to remedy the non-performance. Seller’s ability to sell the Goods at a more advantageous price or an increase in Seller’s procurement or production costs shall not constitute an event of Force Majeure.
- Waiver. The terms of this PO cannot be rescinded, modified or waived except in writing, signed by an authorized representative of the party to be charged.
- Governing Law. These terms and any purchase between Buyer and Seller shall be construed and enforced according to the laws of the State of California.
- Design and Manufacturing Rights. Seller agrees that, where Seller undertakes activity of a research, development and/or design nature using information provided by Buyer, Buyer shall own all rights in any resulting work product, including without limitation all know-how, trade secrets and copyrights, and Seller shall take all necessary steps to ensure that Buyer obtains full legal title in and to said rights, including executing an assignment of rights document prepared by Buyer.
- Spare Parts. Seller agrees to furnish functional components for a period of ten (10) years from end of the term of the PO at the lowest price at which Seller sells such parts.
- Neutral Interpretation. The form of this PO has been prepared initially by Buyer. However, the parties acknowledge that this is a negotiated agreement and, in the event of any dispute over its meaning or application, this PO shall be interpreted fairly and reasonably and neither more strongly for, nor more strongly against, either party.
- Signatures in Counterpart. This PO may be executed in several counterparts, each of which when executed shall be deemed to be an original, but all together shall constitute but one and the same agreement. A facsimile copy hereof shall suffice as an original.
- Entire Agreement. This PO sets forth the entire and only agreement between the parties regarding the subject matter and supersedes any and all prior or contemporaneous agreements, understandings, or proposals whether written or oral, between the parties.
- Notices and Change of Addres All notices or other communications under this PO shall be in writing and may be delivered in person, or may be sent by receipted courier, facsimile transmission, express mail, email, or postage prepaid certified or registered mail, addressed to the party for whom it is intended, at the addresses set forth in this PO. Either party may change its address for notice by giving written notice to the other party of the change. Any notice or other communication shall be deemed given no later than the date actually received. Notice by courier, express mail, certified mail, or registered mail shall be deemed given on the date it is officially recorded as delivered by return receipt or equivalent and, in the absence of such record of delivery, it shall be rebuttably presumed to have been delivered on the third business day after it was deposited, first-class postage prepaid, in the mails. Notices sent by fax or e-mail require tangible confirmation of receipt from the addressee.
- Remedies. Each of the rights and remedies reserved to Buyer in this PO shall be cumulative and additional to any other remedies provided in law or equity. No delay or failure by Buyer in the exercise of any right or remedy shall affect any such right or remedy and no action taken or omitted by Buyer shall be deemed to be a waiver of any such right or remedy.
- Severability. If any provision of this PO shall be held or deemed to be or shall, in fact, be illegal, inoperative or unenforceable, this provision shall not affect any other provision or provisions contained in this PO.
- Entire Agreement. Provided that there is no written agreement, duly executed by both parties, applying to the transaction, this PO, with such documents as are expressly incorporated by reference, is intended by the parties as a final expression of their agreement with respect to such terms as are included in it, and is intended also as a complete and exclusive statement of the terms of their agreement. No course of prior dealings between the parties and no usage of the trade will be relevant to determine the meaning of this agreement even though the accepting or acquiescing party has knowledge of the nature of the performance and opportunity for objection.
- Buyer’s Commitment. Unless otherwise specifically agreed to in writing by Buyer, Seller shall not make material commitments or production arrangements in excess of the amount or in advance of the time necessary to meet Buyer’s PO. It is Seller’s sole responsibility to comply in all respects with the PO by causing timely shipment of the proper quantity of Goods and Buyer shall have no liability with respect thereto. Seller shall be solely responsible for managing its own inventory with respect to Goods purchased and sold hereunder.