PMW Purchase Order Terms and Conditions
1. DEFINITIONS – Buyer is the legal entity known as Precision Machine Works, Inc. (PMW) issuing this Purchase Order. Seller is the legal entity that is contracting with the Buyer by accepting this Purchase Order. When executed, this Purchase Order is a contract that expresses the agreement of Buyer and the Seller and includes any other documents, specifications and any changes that are expressly incorporated into this Purchase Order by reference.
2. ACCEPTANCE – Seller’s acceptance of this Purchase Order means that Seller is contractually obligated to perform in accordance with the terms and conditions of this Purchase Order. Any additions, deletions or differences in the terms proposed by Seller are objected to and hereby rejected unless Buyer agrees to such changes in writing. Commencement of work under this Purchase Order constitutes acceptance of Buyer’s Purchase Order and the terms and conditions contained herein.
3. PRICING – By accepting this Purchase Order, Seller warrants to Buyer that the prices set forth in this Purchase Order do not exceed those charged by Seller to any other customers purchasing the same or similar items or services in like or smaller quantities, under similar conditions of purchase.
4. TAXES – Except as may be otherwise provided in this Purchase Order, the prices shall include all applicable Federal, State or local taxes in effect on the Purchase Order date. Taxes which are invoiced to Buyer shall be stated separately in Seller’s invoices. Tax exemption certificates submitted by Buyer shall be accepted by Seller.
5. INVOICES – To ensure payment, the PURCHASE ORDER NUMBER MUST APPEAR ON SELLER’S INVOICE, and the invoice must be submitted to firstname.lastname@example.org. Seller must submit its final invoice within sixty (60) days of delivery or order.
6. PACKING, MARKING AND SHIPPING – Seller shall pack, mark and ship all goods in accordance with the requirements of this Purchase Order, applicable transportation regulations and good commercial practice. No separate or additional charges shall be payable by Buyer for containers, crating, boxing, bundling, dunnage, drayage or storage unless expressly permitted by this Purchase Order.
7. DELIVERY – Time is of the essence. Delivery shall be strictly in accordance with the schedule set forth in this Purchase Order. Delays in shipment shall be reported immediately by the Seller to the Buyer. Buyer reserves the right to cancel this Purchase Order in whole or in part, if Seller fails to make deliveries in accordance with the terms of this Purchase Order.
8. NEW MATERIAL – NO COUNTERFEIT MATERIAL
a. DEFINITIONS: The term Material, as used in this clause, includes, but is not limited to raw material, parts, components, assemblies and end items. The term New, as used in this clause, means Original Equipment Manufacturer (OEM) or Original Component Manufacturer (OCM) Material previously unused or composed exclusively of previously unused Material, allowing for conventional use including, but not limited to integration, installation, assembly, test, burn-in, training, troubleshooting, and rework as required. The term Counterfeit Material means Material salvaged, produced or altered to resemble a product without authority or right to do so, with the intent to mislead or defraud by presenting the imitation as New Material.
b. Unless Buyer specifies in writing otherwise, Seller shall deliver New Material under this Agreement that is fully warranted.
c. Seller shall not deliver Counterfeit Material to Buyer under this Agreement.
d. Seller represents and warrants that all electronic parts delivered under this Agreement are obtained from OEMs, OCMs, or their authorized dealers. If electronic parts cannot be obtained from OEMs, OCMs, or their authorized dealers and must be procured from alternative source(s), Seller shall obtain Buyer’s written approval
before making such procurements. Seller shall employ, or cause to be employed, inspection, testing and authentication processes reasonably designed to detect and avoid Counterfeit Material and shall provide written description of Seller’s detection and avoidance processes and a certification of Seller’s use of such processes to Buyer on or before delivery.
e. Seller shall immediately notify Buyer when Material is found or suspected to be Counterfeit Material. Notice must be in writing and must be provided to Buyer within 24 hours of discovery.
f. Upon request, Seller shall provide OEM/OCM documentation that enables traceability of the affected Material to the applicable OEM/OCM.
g. Should any Material delivered under this Agreement be found to constitute or include Counterfeit Material, Seller shall, at its expense, promptly replace such Counterfeit Material with genuine parts conforming to the requirements of this Agreement. Notwithstanding any other provision in this Agreement, Seller shall be liable for all costs relating to the removal and replacement of Counterfeit Material, including, without limitation, Buyer’s costs of removing Counterfeit Material, of installing replacement New Material and of any testing/corrective action necessitated by the replacement of Counterfeit Material with New Material. The remedies contained in this paragraph are in addition to any remedies Buyer may have at law, equity or under other provisions of this Agreement.
h. Seller shall include this clause or equivalent provisions in any Agreements that Seller issues for the delivery of New Material that will be included in or furnished to Buyer.
9. TITLE AND RISK OF LOSS – Unless otherwise specified, all shipments shall be FOB destination. Title and risk of loss shall pass to the Buyer at the FOB point, provided however, that the risk of loss shall remain with Seller as to goods which are not accepted by Buyer or which are rejected by Buyer.
10. PAYMENT/DISCOUNT TERMS – Payment terms shall be net 30 days unless otherwise stated on the face of this Purchase Order. Discounts, if applicable, shall be calculated from the date materials are received by the Buyer at Buyer’s designated destination. In the event that Seller is overpaid for any reason, Seller shall promptly refund or credit the overpayment back to Buyer.
11. OVERSHIPMENTS/OVERWORK – Buyer will be liable for payment only for quantities of materials and services specified in this Purchase Order. Over-shipments will be held at Seller’s risk and expense for a reasonable time, until return shipping instructions are received from Seller. Shipping charges for such returns shall be at Seller’s expense. Buyer shall have no obligation to pay for Seller’s performance of any services in excess of those specified in this Purchase Order.
12. REPRODUCTION RIGHTS – Buyer does not grant Seller (a) any reproduction rights to the articles ordered or (b) any right to use designs, drawings or other information belonging to or supplied by the Buyer in the manufacture or design of articles or materials for anyone other than the Buyer.
13. TITLE TO SPECIFICATIONS – Buyer claims and holds title to all drawings and specifications furnished to the Seller for use in connection with this Purchase Order. Seller shall not disclose such drawings and specifications to any person, firm or corporation other than Buyer or Seller’s employees. The Seller shall, upon Buyer’s request, promptly return all such drawings and specifications to the Buyer.
14. DEFECTS/NON-CONFORMANCE – If any of the materials or services are defective or otherwise not in conformity with the requirements of this Purchase Order, Buyer shall have the right to either reject them or to require correction at Seller’s expense. Buyer may return defective goods to Seller at Seller’s risk and expense, including shipping charges.
15. WARRANTY – The Seller warrants that all materials or services delivered hereunder conform strictly to the design, specifications, drawings, samples or other descriptions referenced in this Purchase Order, and that such deliverables will
be free from defects in material and workmanship. Such warranties shall survive any inspection, delivery, acceptance or payment by the Buyer for a period of 12 months.
16. FORCE MAJEURE — Any loss, damage, or delay in, or failure of, performance by the Seller shall not constitute a default under the Agreement or give rise to any claim for damage if such loss, damage, delay, or failure is attributable in whole or in part to any cause or causes beyond the reasonable control of the Seller. These causes may include, without limitation, any act of God or the public enemy; compliance with any order, decree, or request of any governmental authority; act of declared or undeclared war; public disorder; rebellion; sabotage; fire; flood; explosion; accident; riot; strike; labor difficulty or other concerted act of workmen, whether direct or indirect; declaration of national emergency; mobilization of industry whereby material and labor required for manufacture of the Product are allocated or controlled; or any other cause not within the control of the Seller or which the Seller is unable to avoid by exercise of reasonable care. Upon any such occurrence, the estimated time for delivery of the Equipment shall be extended for a time which is reasonable in relation to the cause of such event.
17. PATENT, TRADEMARK, COPYRIGHT INDEMNITY – Seller agrees to indemnify and hold harmless Buyer, its successors, assigns and customers from and against any and all expenses, liabilities or other losses arising from or caused by any actual or claimed infringement of patents, trademarks, or copyrights, and to defend any suits based thereon, with respect to any materials or services furnished hereunder by the Seller, except where the claimed infringement is caused by the equipment, materials designs or drawings furnished to Seller hereunder by Buyer.
18. CHANGES – Buyer’s contractual representative may authorize changes, in writing, to the delivery schedules, drawings, quantities, designs and specifications. Seller is not authorized to follow any other changes requested orally or by any other employee of Buyer, and Buyer shall not be liable to Seller for any additional costs incurred if Seller does so. If any properly requested change affects the cost or delivery schedules of this Purchase Order, an equitable adjustment shall be made, provided Seller notifies Buyer, in writing, and before proceeding with the change, that the requested change will affect the cost or delivery schedule, and makes a written claim for an equitable adjustment within 15 days from the date of Buyer’s written notification.
19. PUBLICITY – Seller shall not, without first obtaining written consent of Buyer, in any manner advertise or publish the fact that Seller has supplied or contracted to supply the Buyer the materials or services mentioned herein.
20. ASSIGNMENT – Seller shall not delegate any duties or assign any rights or claims under this Purchase Order without the prior written consent of Buyer.
21. SETOFF – All claims for monies due or to become due from Buyer shall be subject to deduction by Buyer for any setoff or counterclaim arising out of this or any other transaction with Seller.
22. TERMINATION – Buyer may terminate this Purchase Order, with or without cause, in whole or in part at any time by written notice stating the extent and effective date of such termination. In the event of such a termination, Buyer shall be liable to pay Seller only for acceptable goods delivered or services performed before the effective date of termination. In the event of a termination for default by Buyer, Buyer may acquire supplies or services similar to those terminated, and the Seller will be liable to the Buyer for any excess costs for those supplies or services.
23. ORDER OF PRECEDENCE – In the event of any inconsistency among the provisions of this Purchase Order, such inconsistency shall be resolved using the following order of precedence: (i) any specifications, terms and conditions mutually agreed to in writing on the Purchase Order, excluding any documents expressly incorporated by reference; (ii) the terms and conditions set forth in this document; and (iii) any other documents expressly incorporated by reference on the Purchase Order.
24. BUYER’S REMEDIES – All rights and remedies of Buyer set out in this Purchase Order are cumulative and in addition to any remedies provided by law or equity.
25. WAIVER – The failure of the Buyer to enforce at any time any of the provisions hereof shall neither be construed to be a waiver of such provisions nor of the right of the Buyer thereafter to enforce each and every such provision.
26. COMPLIANCE WITH LAWS – Seller shall comply with all applicable Federal, State and municipal laws, ordinances, rules and regulations.
27. DISPUTES – Irrespective of the place of performance, this Purchase Order will be construed and interpreted according to the laws of the Commonwealth of Virginia, without regard to its conflict of law’s provisions. All disputes arising out of or related to this Purchase Order will be subject to the exclusive jurisdiction and venue of the Virginia state and Federal courts located in Richmond, Virginia, and the parties hereby consent to such jurisdiction and venue. The parties hereby waive trial by jury with respect to any dispute relating to this agreement. In the event of any litigation arising under or related to this Agreement, the prevailing party shall be entitled to recover its costs and reasonable attorneys’ fees incurred in such litigation from the non-prevailing party.
28. INDEMNIFICATION – Seller shall indemnify, defend and hold Buyer and Buyer’s customers harmless from and against any and all damages, losses, liabilities and expenses (including reasonable attorneys’ fees) arising out of or relating to any claims, causes of action, lawsuits or other proceedings, regardless of legal theory, that result, in whole or in part, from the allegation or fact that Seller’s (or any of Seller’s subcontractors, suppliers, employees, agents or representatives):
(i) engaged in intentional misconduct, negligence, or fraud,
(ii) breached any representation, warranty or covenant made herein, or
(iii) products or services are/were unfit, defective, incomplete or harmful.
a. Buyer shall promptly notify Seller of any claim against Buyer that is covered by this indemnification provision, provided, however, that Buyer’s failure to promptly notify Seller about any claim shall not relieve Seller from its obligations hereunder unless such failure prejudiced Seller’s ability to adequately defend such claim.
b. Seller shall defend any claim against Buyer that is covered by this indemnification provision, at Seller’s own expense, unless Buyer chooses to defend or respond to any such claim (which defense or response shall be at Seller’s expense). Buyer shall have the right, at the Buyer’s expense, to monitor Seller’s defense of any such claim. Buyer shall cooperate, at Seller’s expense, in Seller’s defense of any indemnified claim.
29. INSURANCE – The Seller shall procure and maintain such insurance as is required by law or regulation as of the date of execution of this Purchase Order. Without prejudice to Seller’s liability to indemnify Buyer as stated in the indemnification provisions of this Purchase Order, Seller shall procure, at its expense, and maintain for the duration of the Purchase Order, the insurance policies described below with financially responsible insurance companies of at least an A rating, reasonably acceptable to Buyer, with policy limits not less than those indicated below. Notwithstanding any provision contained herein, the Seller, and its employees, agents, representatives, consultants and lower-tier subcontractors and suppliers, are not insured by Buyer, and are not covered under any policy of insurance that Buyer has obtained or has in place.
30. AUTHORITY – Each party represents that the person signing this Purchase Order on the party’s behalf has been duly authorized to execute this Purchase Order on behalf of such party, and each of the signatories hereto signing in a representative capacity warrants and represents that he or she has been duly authorized by and on behalf of his or her respective principal to execute this Purchase Order.
31. EXPORT CONTROL – Seller understands and agrees that technical data, whether or not proprietary, furnished to it by PMW shall not be disclosed to any foreign national, firm, country, including foreign nationals employed by or associated with Seller. Further, Seller understands and agrees that no technical data shall be exported from the United States without first obtaining the written consent of PMW to export any such technical data and complying with all requirements of the International Traffic in Arms Regulations and the Export Administration Regulations, including the requirement for obtaining any export license. Subcontractor agrees that it shall indemnify and hold PMW harmless from
all claims, demands, damages, costs, fines, penalties, attorneys’ fees, and all other expenses arising from the failure of Subcontractor to comply with this clause or the International Traffic in Arms Regulations and the Export Administration Regulations. Seller agrees that it will contact PMW for clarification if it is unsure whether or not such technical data is export controlled.
32. INVALID TERMS – Each provision of this Purchase Order shall be held valid and enforceable to the fullest extent permitted by law. If any term, provision, covenant, and/or condition of this Purchase Order is held by a court or regulatory body of competent jurisdiction to be invalid, void, and/or unenforceable, the rest of the Purchase Order shall remain in full force and effect and shall in no way be affected, impaired, or invalidated. In the event such determination prevents the accomplishment of the purpose of this Purchase Order, the invalid provision shall be restated to conform to applicable law and to reflect as nearly as possible the original intent of the Parties.
33. ENTIRE AGREEMENT – This is the entire agreement between the parties relative to this Purchase Order. It supersedes and replaces any and all previous understandings, commitments or agreements, oral or written, related to this Purchase Order unless they are expressly incorporated by reference in this Purchase Order.
34. CONFLICT OF INTEREST – Seller represents and warrants that its fulfillment of the obligations under the Purchase Order and all modifications thereto, and its performance as a supplier of Buyer, will not breach any agreement or other obligation that Seller may have to any third party, including, but not limited to prior buyers. Seller agrees that during its performance as a supplier of Buyer, Seller will not improperly use or disclose any proprietary information or trade secrets belonging to any non-Buyer person or business and that Seller will not bring onto Buyer’s premises any unpublished document or proprietary information belonging to any such person or business unless consented to in writing by such person or business.
AS9100 PURCHASE ORDER TERMS & CONDITIONS
As a supplier to PMW, it is understood that your organization agrees to meet the following stipulations/AS9100 requirements whenever a PMW purchase order specifies that the order is for an AS9100 application, or contains some similar aerospace/AS9100 reference. The following additional terms and conditions apply to AS9100-covered purchased orders.
(a) PMW reserves the right of final approval of product, procedures, processes, and equipment.
(b) All special processes required by this purchase order must be performed by qualified personnel.
(c) PMW reserves the right to review and approve the Supplier’s Quality Management System. Standard QMS requirements include:
• Suppliers providing a special processing must maintain a system for validating processes similar to that of a NADCAP program, or other systems as required by this purchase order.
• Customer directed sources must operate in accordance with the approved specifications and standards as dictated and controlled by the customer in question.
• Suppliers initially approved for use via certification (e.g., ISO, AS9100, ISO 17025, AS9120) must notify our organization of any changes to that certification.
(d) The supplier shall maintain the proper identification and revision status of specifications, drawings, process requirements, inspection/verification instructions and other relevant technical data.
(e) PMW reserves the right to approve or specify any designs, test, inspection plans, verifications, use of statistical techniques for product acceptance, and any applicable critical items, including key characteristics
(f) PMW reserves the right to designate requirements for test specimens for design approval, inspection/verification, investigation auditing.
(g) The Supplier is required to:
• Notify PMW of nonconforming product immediately upon discovery.
• Obtain PMW approval for nonconforming product disposition.
• Notify PMW on nonconforming product and/or process, changes of suppliers, and changes to manufacturing facility locations
• Flow down to the supply chain applicable requirements, including customer requirements.
(h) Supplier shall maintain on file all quality data/records such as: certificates of material and/or processes, acceptance test reports, inspection records, and other applicable quality control data, for a minimum of 7 years for government orders and 2 years from completion of purchase order.
(i) PMW reserves the right of access by our representatives, our customers, and any regulatory authorities to the applicable areas of all facilities, at any level of the supply chain, involved in the order and to all applicable records
(j) Supplier shall ensure that personnel are aware of:
• their contribution to product or service conformity;
• their contribution to product safety;
• the importance of ethical behavior.