1. PAYMENT
Terms of payment are net thirty (30) days after the date of the Cole invoice. Amounts not paid when due shall bear interest at the lesser of one and one-half (1.5%) percent per month or the highest legal rate, and may result in the imposition by Cole of modified credit terms.
2. PRICES AND TAXES
Prices are exclusive of all federal, state, municipal, or other government excise, sales, use, occupational, or like taxes or duties now in force or enacted in the future. Any such tax, fee, or charge of any nature whatsoever imposed by any governmental authority on or measured by the transaction between Cole and Customer shall be paid by the Customer in addition to the prices quoted or invoiced. In the event Cole is required to pay any such tax, fee, or a charge, at the time of sale or thereafter, Customer shall reimburse Cole thereof.
3. SHIPMENT AND DELIVERY
All shipments herein shall be F.O.B. Cole facility via a commercial service of our choice, unless otherwise requested by the Customer. The time of delivery is the time the Product to be delivered is picked up by the carrier. All shipping charges shall be the obligation of the Customer and paid freight collect upon receipt by it or, if paid by Cole, set forth as a separate item on the Cole invoice.
4. TITLE AND RISK OF LOSS
Title to the Product shall pass to Customer upon delivery thereof by Cole to carrier (F.O.B. 2650 S. Croddy Way, Santa Ana California) and upon delivery Customer shall be responsible for and bear all risk of loss or damage to the Products. Cole shall retain a purchase money security interest in the Products until payment in full and Customer agrees to execute any documents necessary to perfect such security interest.
5. NON-RECURRING ENGINEERING (NRE) CHARGES
When Cole designs a new Product to a Customer’s performance specifications, Cole may require the Customer to pay an NRE charge to cover Cole’s costs of design engineering and the subsequent production of any drawings, documents, certifications, tooling, molds, fixtures and any other materials (“materials”) that are unique to the new Product and that are required before the new Product can be released for commercial production. All such materials will remain the sole property of Cole. Cole shall not be limited regarding the future use of such materials and Customer shall have no claim on the future use of such materials.
6. CONFIDENTIAL AND PROPRIETARY INFORMATION
Customer shall keep confidential all information provided by Cole in connection with the Purchase Order, including, but not limited to, trade secrets, any technical, process, proprietary or economic information derived from drawings, models, specifications and other data and shall not divulge, directly or indirectly, such information for the benefit of any party other than Cole without Cole’s prior written consent. Except as required for the efficient performance of the Purchase Order, Customer shall not use such information or make or permit copies to be made of such drawings, models, proprietary information, specifications or other data without Cole’s prior written consent. If any reproduction is made with prior written consent, notice referring to the requirements of this paragraph shall be inscribed thereon. Upon completion or termination of the Purchase Order, Customer shall promptly return to Cole all materials incorporating any such information and any copies thereof. Any knowledge or information which Customer shall have disclosed or may hereafter disclose to Cole, and which in any way relates to the goods or services related to the Purchase Order, shall not, unless otherwise specifically agreed to in writing by Cole, be deemed to be confidential or proprietary, and shall be acquired by Cole free from any restrictions, as part of the consideration for the Purchase Order. Customer shall not make any announcement, take or release any photographs (except for its internal operation purposes for manufacture and assembly of goods), or release any information concerning the Purchase Order or any part thereof or with respect to its business relationship with Cole, to any third party, member of the public, press, or any official body except as required by applicable law, without Cole’s prior written consent.
7. LIMITED WARRANTY - CUSTOM PRODUCTS
It is mutually understood and agreed that the Products that are the subject this sale are produced pursuant to Customer’s own custom performance specifications and Customer’s own design specifications. No warranty is made with respect to these custom Products that are manufactured and produced pursuant Customer’s own performance specifications and own design specifications.
The liability of Cole hereunder shall be limited to replacing or repairing, at its option, any Products defective for material and workmanship for a period of 12 months from the date shipped which are returned F. O. B., Cole’s facility, Santa Ana, California (or at Cole’s option, refunding the purchase price of such Products). In no case are Products to be returned, without first obtaining permission and a Return Materials Authorization (RMA) Customer return order number from Cole.
In no event shall Cole be liable for any loss of use, revenue, profit, or for any direct, indirect, incidental, special or consequential damages arising out of, connected with, or resulting from the sale and use of the Products for all causes and events inclusive of but not limited to latent defects, intermittent event defects, or root cause defects. This exclusion also includes any liability that may arise out of third-party claims against Customer.
The warranties set forth in this paragraph are given in lieu of and expressly disclaim any and all other warranties, express, implied or statutory, including, but not limited to, any implied warranties of merchantability or fitness for a particular purpose.
This warranty is the only warranty made by Cole with respect to the Products delivered hereunder, and may be modified or amended only by a written instrument signed by a duly authorized Officer of Cole and accepted by Customer.
The Customer understands that Cole is under no obligation to accept liability if the Customer fails to sign the Order Acknowledgment and accept Cole’s Terms and Conditions.
8. WARRANTY ADJUSTMENT
No product will be accepted by Cole for repair or replacement without the written authorization of Cole. Upon such authorization, and in accordance with instructions issued by Cole, the product shall be returned to Cole. Shipping charges shall be prepaid by Customer. Upon examination of the product(s), and verification of the claim by Cole, repair or replacement will be carried out in accordance with the above warranty. If the failure is not verified, and the returned product(s) are still within the warranty requirements, Customer shall be subjected to a retest and handling charge of no less than fifty ($50.00) dollars per unit.
9. INTELLECTUAL PROPERTY
Cole warrants the use of the Products and documentation furnished to Customer that are of Cole’ standard manufacture, design, and composition and used as contemplated by Cole shall be free and clear of infringement of any United States patent or registered copyright covering the structure of such articles or documentation. In the event of a claim, suit or action against Customer alleging such infringement, Cole shall defend and save Customer harmless from liability, as finally determined by a court of competent jurisdiction, for such infringement, provided that Customer shall have made timely payment of all amounts due for the article involved in the claim, suit or action, that Customer shall have notified Cole promptly in writing of such claim, suit or action, that Customer shall have given Cole all proper information and assistance requested by Cole and full and exclusive control of the defense thereof, and that Cole shall have the sole right to settle or compromise such claim, suit or action. In the event that a final injunction is obtained in such action against the use of the Products or any part thereof by reason of infringement of a United States patent or otherwise within the scope of this Paragraph, Cole will, at its option either:
(a) Procure for Customer, at Cole’ expense, the right to continue using the Products;
(b) Replace or modify the same so that it shall be non-infringing; or
(c) Direct Customer to return such Products to Cole, and refund to Customer the purchase price originally paid less a use credit equal to the applicable Cole lease charges for the period use.
Cole shall only resort to option (c) after having exerted reasonable effort to remedy the situation by first utilizing option (a) or (b). Cole has no liability for any claim, suit or action pursuant to this Paragraph based upon or arising out of (1) the combination, operation or use of the Products with Products or items not furnished by Cole; (2) a Product provided to comply with designs, requirements, or specifications modified by Customer; (3) Customer’s failure to use a Product in accordance with instructions provided by Cole, if the infringement or misappropriation would not have occurred but for such failure; or (4) any modification of a Product not made or authorized in writing by Cole where such infringement or misappropriation would not have occurred absent such modification. The foregoing states Cole’s entire liability and obligations and Customer’s exclusive remedy with respect to any claim, suit or action alleging infringement of any intellectual property rights.
10. LIMITATION OF LIABILITY
Cole shall not be liable for any loss, damages, or penalty resulting from delay in delivery when such delay is due to causes beyond the reasonable control of Cole, including but not limited to supplier delay, force majeure, act of God, labor unrest, fire, explosion, or earthquake. In any such event, the delivery date shall be deemed extended for a period equal to the delay.
Cole’s liability under, for breach of, or arising out of this agreement and/or sale shall be limited to refund of the purchase price. In no event shall Cole be liable for costs of procurement of substitute goods by the Customer. In no event shall Cole be liable for any special, consequential, incidental, or other damages (including without limitation loss of profit) whether or not Cole has been advised of the possibility of such loss, however caused, whether for breach or repudiation of agreement, breach of warranty, negligence, or otherwise. This exclusion also includes any liability that may arise out of third-party claims against Customer. The essential purpose of this provision is to limit the potential liability of Cole arising out of this agreement and/or sale.
11. ACCEPTANCE BY CUSTOMER – ENTIRE AGREEMENT
The terms and conditions as set forth herein shall constitute the entire agreement between Cole and the Customer. Cole shall not be bound by any terms of Customer’s order which are inconsistent with the terms herein set forth. Acceptance by Customer of these terms may be made either by written acceptance, or by receipt by Customer of delivery of any products described on the face of this document and failure of such Products as herein provided.
This agreement shall not be modified, supplemented, qualified, or interpreted by any trade usage or prior course of dealing not made a part of the agreement by its express terms.
The failure by Cole to enforce at any time any of the provisions of this agreement, or to exercise any election or potion provided herein, shall in no way be construed as a waiver of such provisions or options, nor in any way to affect the validity of this agreement or any part thereof, or the right of Cole thereafter to enforce each and every such provision.
Customer hereby acknowledges that he has not entered into this agreement in reliance upon any warranty or representation by any person or entity except for the warranties or representations specifically set forth herein.
12. CANCELLATION AFTER ACCEPTANCE
A Purchase Order may be cancelled by Customer only upon the payment of a cancellation charge equal to at least 25% of the original Purchase Order value or expenses already incurred by Cole including, but not limited to, labor and material costs, overhead, commitments made by Cole, and a reasonable profit. Upon cancellation Customer shall have no rights to partially completed products.
13. SUBSTITUTIONS AND MODIFICATIONS
Cole shall have the right to make substitutions and modifications in the specifications of Products sold by Cole provided that such substitutions or modifications will not materially affect overall Product performance.
14. ASSIGNMENT
Neither Party may assign its right, duties, or obligations under this Agreement without the other Party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that Cole may assign this Agreement to an affiliate or a successor (including a successor by way of Change of Control or operation of law), or in connection with the sale of all of the assets or business to which this Agreement relates. A Change of Control shall be deemed to cause an assignment of this Agreement. “Change of Control” means a merger, acquisition, divestiture, sale of assets or equity, or similar transaction.
15. BANKRUPTCY
If Customer shall become bankrupt or insolvent or compounds with its creditors or commences to be wound up or suffers a receiver to be appointed, Cole shall be at liberty by notice in writing to cancel this agreement without judicial intervention or declaration of default of Customer and without prejudice to any remedy which shall have accrued or shall accrue thereafter to Cole.
16. MISCELLANEOUS
Paragraph headings are provided for convenience of reference only and shall not limit or modify any term hereof. Stenographic and clerical errors are subject to corrections.
The agreement between the parties is made, governed by, and shall be construed in accordance with the laws of the State of California.
The California state courts of Orange County, California (or, if there is exclusive federal jurisdiction, the United States District Court for the Southern District of California) shall have exclusive jurisdiction and venue over any dispute arising out of this agreement and sale, and Customer hereby consents to the jurisdiction of such courts.
Reasonable attorney’s fees and costs shall be awarded to the prevailing party in the event of litigation involving the enforcement or interpretation of this agreement or any request for shipment release issued and accepted under terms and conditions of this agreement.
Terms of payment are net thirty (30) days after the date of the Cole invoice. Amounts not paid when due shall bear interest at the lesser of one and one-half (1.5%) percent per month or the highest legal rate, and may result in the imposition by Cole of modified credit terms.
2. PRICES AND TAXES
Prices are exclusive of all federal, state, municipal, or other government excise, sales, use, occupational, or like taxes or duties now in force or enacted in the future. Any such tax, fee, or charge of any nature whatsoever imposed by any governmental authority on or measured by the transaction between Cole and Customer shall be paid by the Customer in addition to the prices quoted or invoiced. In the event Cole is required to pay any such tax, fee, or a charge, at the time of sale or thereafter, Customer shall reimburse Cole thereof.
3. SHIPMENT AND DELIVERY
All shipments herein shall be F.O.B. Cole facility via a commercial service of our choice, unless otherwise requested by the Customer. The time of delivery is the time the Product to be delivered is picked up by the carrier. All shipping charges shall be the obligation of the Customer and paid freight collect upon receipt by it or, if paid by Cole, set forth as a separate item on the Cole invoice.
4. TITLE AND RISK OF LOSS
Title to the Product shall pass to Customer upon delivery thereof by Cole to carrier (F.O.B. 2650 S. Croddy Way, Santa Ana California) and upon delivery Customer shall be responsible for and bear all risk of loss or damage to the Products. Cole shall retain a purchase money security interest in the Products until payment in full and Customer agrees to execute any documents necessary to perfect such security interest.
5. NON-RECURRING ENGINEERING (NRE) CHARGES
When Cole designs a new Product to a Customer’s performance specifications, Cole may require the Customer to pay an NRE charge to cover Cole’s costs of design engineering and the subsequent production of any drawings, documents, certifications, tooling, molds, fixtures and any other materials (“materials”) that are unique to the new Product and that are required before the new Product can be released for commercial production. All such materials will remain the sole property of Cole. Cole shall not be limited regarding the future use of such materials and Customer shall have no claim on the future use of such materials.
6. CONFIDENTIAL AND PROPRIETARY INFORMATION
Customer shall keep confidential all information provided by Cole in connection with the Purchase Order, including, but not limited to, trade secrets, any technical, process, proprietary or economic information derived from drawings, models, specifications and other data and shall not divulge, directly or indirectly, such information for the benefit of any party other than Cole without Cole’s prior written consent. Except as required for the efficient performance of the Purchase Order, Customer shall not use such information or make or permit copies to be made of such drawings, models, proprietary information, specifications or other data without Cole’s prior written consent. If any reproduction is made with prior written consent, notice referring to the requirements of this paragraph shall be inscribed thereon. Upon completion or termination of the Purchase Order, Customer shall promptly return to Cole all materials incorporating any such information and any copies thereof. Any knowledge or information which Customer shall have disclosed or may hereafter disclose to Cole, and which in any way relates to the goods or services related to the Purchase Order, shall not, unless otherwise specifically agreed to in writing by Cole, be deemed to be confidential or proprietary, and shall be acquired by Cole free from any restrictions, as part of the consideration for the Purchase Order. Customer shall not make any announcement, take or release any photographs (except for its internal operation purposes for manufacture and assembly of goods), or release any information concerning the Purchase Order or any part thereof or with respect to its business relationship with Cole, to any third party, member of the public, press, or any official body except as required by applicable law, without Cole’s prior written consent.
7. LIMITED WARRANTY - CUSTOM PRODUCTS
It is mutually understood and agreed that the Products that are the subject this sale are produced pursuant to Customer’s own custom performance specifications and Customer’s own design specifications. No warranty is made with respect to these custom Products that are manufactured and produced pursuant Customer’s own performance specifications and own design specifications.
The liability of Cole hereunder shall be limited to replacing or repairing, at its option, any Products defective for material and workmanship for a period of 12 months from the date shipped which are returned F. O. B., Cole’s facility, Santa Ana, California (or at Cole’s option, refunding the purchase price of such Products). In no case are Products to be returned, without first obtaining permission and a Return Materials Authorization (RMA) Customer return order number from Cole.
In no event shall Cole be liable for any loss of use, revenue, profit, or for any direct, indirect, incidental, special or consequential damages arising out of, connected with, or resulting from the sale and use of the Products for all causes and events inclusive of but not limited to latent defects, intermittent event defects, or root cause defects. This exclusion also includes any liability that may arise out of third-party claims against Customer.
The warranties set forth in this paragraph are given in lieu of and expressly disclaim any and all other warranties, express, implied or statutory, including, but not limited to, any implied warranties of merchantability or fitness for a particular purpose.
This warranty is the only warranty made by Cole with respect to the Products delivered hereunder, and may be modified or amended only by a written instrument signed by a duly authorized Officer of Cole and accepted by Customer.
The Customer understands that Cole is under no obligation to accept liability if the Customer fails to sign the Order Acknowledgment and accept Cole’s Terms and Conditions.
8. WARRANTY ADJUSTMENT
No product will be accepted by Cole for repair or replacement without the written authorization of Cole. Upon such authorization, and in accordance with instructions issued by Cole, the product shall be returned to Cole. Shipping charges shall be prepaid by Customer. Upon examination of the product(s), and verification of the claim by Cole, repair or replacement will be carried out in accordance with the above warranty. If the failure is not verified, and the returned product(s) are still within the warranty requirements, Customer shall be subjected to a retest and handling charge of no less than fifty ($50.00) dollars per unit.
9. INTELLECTUAL PROPERTY
Cole warrants the use of the Products and documentation furnished to Customer that are of Cole’ standard manufacture, design, and composition and used as contemplated by Cole shall be free and clear of infringement of any United States patent or registered copyright covering the structure of such articles or documentation. In the event of a claim, suit or action against Customer alleging such infringement, Cole shall defend and save Customer harmless from liability, as finally determined by a court of competent jurisdiction, for such infringement, provided that Customer shall have made timely payment of all amounts due for the article involved in the claim, suit or action, that Customer shall have notified Cole promptly in writing of such claim, suit or action, that Customer shall have given Cole all proper information and assistance requested by Cole and full and exclusive control of the defense thereof, and that Cole shall have the sole right to settle or compromise such claim, suit or action. In the event that a final injunction is obtained in such action against the use of the Products or any part thereof by reason of infringement of a United States patent or otherwise within the scope of this Paragraph, Cole will, at its option either:
(a) Procure for Customer, at Cole’ expense, the right to continue using the Products;
(b) Replace or modify the same so that it shall be non-infringing; or
(c) Direct Customer to return such Products to Cole, and refund to Customer the purchase price originally paid less a use credit equal to the applicable Cole lease charges for the period use.
Cole shall only resort to option (c) after having exerted reasonable effort to remedy the situation by first utilizing option (a) or (b). Cole has no liability for any claim, suit or action pursuant to this Paragraph based upon or arising out of (1) the combination, operation or use of the Products with Products or items not furnished by Cole; (2) a Product provided to comply with designs, requirements, or specifications modified by Customer; (3) Customer’s failure to use a Product in accordance with instructions provided by Cole, if the infringement or misappropriation would not have occurred but for such failure; or (4) any modification of a Product not made or authorized in writing by Cole where such infringement or misappropriation would not have occurred absent such modification. The foregoing states Cole’s entire liability and obligations and Customer’s exclusive remedy with respect to any claim, suit or action alleging infringement of any intellectual property rights.
10. LIMITATION OF LIABILITY
Cole shall not be liable for any loss, damages, or penalty resulting from delay in delivery when such delay is due to causes beyond the reasonable control of Cole, including but not limited to supplier delay, force majeure, act of God, labor unrest, fire, explosion, or earthquake. In any such event, the delivery date shall be deemed extended for a period equal to the delay.
Cole’s liability under, for breach of, or arising out of this agreement and/or sale shall be limited to refund of the purchase price. In no event shall Cole be liable for costs of procurement of substitute goods by the Customer. In no event shall Cole be liable for any special, consequential, incidental, or other damages (including without limitation loss of profit) whether or not Cole has been advised of the possibility of such loss, however caused, whether for breach or repudiation of agreement, breach of warranty, negligence, or otherwise. This exclusion also includes any liability that may arise out of third-party claims against Customer. The essential purpose of this provision is to limit the potential liability of Cole arising out of this agreement and/or sale.
11. ACCEPTANCE BY CUSTOMER – ENTIRE AGREEMENT
The terms and conditions as set forth herein shall constitute the entire agreement between Cole and the Customer. Cole shall not be bound by any terms of Customer’s order which are inconsistent with the terms herein set forth. Acceptance by Customer of these terms may be made either by written acceptance, or by receipt by Customer of delivery of any products described on the face of this document and failure of such Products as herein provided.
This agreement shall not be modified, supplemented, qualified, or interpreted by any trade usage or prior course of dealing not made a part of the agreement by its express terms.
The failure by Cole to enforce at any time any of the provisions of this agreement, or to exercise any election or potion provided herein, shall in no way be construed as a waiver of such provisions or options, nor in any way to affect the validity of this agreement or any part thereof, or the right of Cole thereafter to enforce each and every such provision.
Customer hereby acknowledges that he has not entered into this agreement in reliance upon any warranty or representation by any person or entity except for the warranties or representations specifically set forth herein.
12. CANCELLATION AFTER ACCEPTANCE
A Purchase Order may be cancelled by Customer only upon the payment of a cancellation charge equal to at least 25% of the original Purchase Order value or expenses already incurred by Cole including, but not limited to, labor and material costs, overhead, commitments made by Cole, and a reasonable profit. Upon cancellation Customer shall have no rights to partially completed products.
13. SUBSTITUTIONS AND MODIFICATIONS
Cole shall have the right to make substitutions and modifications in the specifications of Products sold by Cole provided that such substitutions or modifications will not materially affect overall Product performance.
14. ASSIGNMENT
Neither Party may assign its right, duties, or obligations under this Agreement without the other Party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that Cole may assign this Agreement to an affiliate or a successor (including a successor by way of Change of Control or operation of law), or in connection with the sale of all of the assets or business to which this Agreement relates. A Change of Control shall be deemed to cause an assignment of this Agreement. “Change of Control” means a merger, acquisition, divestiture, sale of assets or equity, or similar transaction.
15. BANKRUPTCY
If Customer shall become bankrupt or insolvent or compounds with its creditors or commences to be wound up or suffers a receiver to be appointed, Cole shall be at liberty by notice in writing to cancel this agreement without judicial intervention or declaration of default of Customer and without prejudice to any remedy which shall have accrued or shall accrue thereafter to Cole.
16. MISCELLANEOUS
Paragraph headings are provided for convenience of reference only and shall not limit or modify any term hereof. Stenographic and clerical errors are subject to corrections.
The agreement between the parties is made, governed by, and shall be construed in accordance with the laws of the State of California.
The California state courts of Orange County, California (or, if there is exclusive federal jurisdiction, the United States District Court for the Southern District of California) shall have exclusive jurisdiction and venue over any dispute arising out of this agreement and sale, and Customer hereby consents to the jurisdiction of such courts.
Reasonable attorney’s fees and costs shall be awarded to the prevailing party in the event of litigation involving the enforcement or interpretation of this agreement or any request for shipment release issued and accepted under terms and conditions of this agreement.
Cole’s Supplemental Terms & Conditions
- PRICE. This is a firm price order.
- TERMS OF PAYMENT. Invoices shall be dated no earlier than date of shipment or delivery of service. Buyer will pay invoices forty-five (45) days after receipt of invoice, required delivery date, acceptance, or the date any applicable non-conformity is resolved, whichever date is later.
- ATTACHMENTS. Documents designated by Buyer in the body of the Purchase Order, including supplemental terms and conditions, if any, are incorporated by reference the same as if set out in full therein.
- CHANGES. The Buyer reserves the right at any time to issue a written change order or amendment to the Purchase Order concerning any of the following: (a) specifications, drawings, and data incorporated in the Purchase Order where the items to be furnished are to be specially manufactured for the Buyer; (b) quantity; (c) methods of shipment or packaging, (d) place of delivery, (ies) time of delivery; or (f) any other matters affecting this Purchase Order.
- TERMINATION. Buyer may terminate the Purchase Order for its convenience, in whole or in part, at any time prior to shipment by (written or electronic) notice to Seller. Upon receipt of such termination notice, Seller shall promptly comply with the directions contained in such notice and shall, as required, (a) take action necessary to terminate the work as provided in the notice, minimizing costs and liabilities for the terminated work, and (b) continue the performance of any part of the work not terminated by Buyer.
- ASSIGNMENT. Seller may not assign, transfer, or subcontract this Purchase Order or any right or obligation hereunder without Buyer’s written consent.
- EXCUSABLE DELAY. Fires, floods, strikes, accidents, shortages, or other causes beyond the reasonable control of the parties, which prevent Seller from delivering, or Buyer from receiving, any of the goods and services covered by this Purchase Order, shall suspend deliveries until the cause is removed, subject, however, to Buyer’s right of termination for convenience under Paragraph 5.
- PACKAGING, PACKING LIST, AND BILL OF LADING AND DELIVERY. Seller shall be responsible for proper packaging, loading, and tie-down to prevent damage during transportation. Buyer’s weight and/or count will be accepted as final and conclusive on all shipments not accompanied by a packing list. Delivery to Buyer shall be interpreted as the on dock date at Buyers facility (required date) as noted on PO. Buyer will not accept shipments prior to two weeks in advance of the required dock date unless otherwise authorized in writing.
- INSPECTION. All goods and services furnished hereunder will be subject to inspection and test by Buyer at all times and places and will be subject to Buyer’s final inspection and approval within a reasonable time after delivery. It is the supplier’s responsibility to ensure that all product, assembly, material and process specifications reflect the latest revision levels. If Seller delivers non-conforming goods, Buyer may at its option and at Seller’s expense: (i) reject and return the goods for credit or refund; (ii) require Seller to promptly correct or replace the goods; (iii) correct the goods; or (iv) obtain replacement goods from another source. Seller shall not redeliver corrected or rejected goods without disclosing the former rejection or requirement for correction. Seller shall disclose any corrective action taken. Repair, replacement and other correction and re-delivery shall be completed within the original delivery schedule or such later time as Buyer may reasonably direct. All costs, expenses and loss of value incurred as a result of or in connection with non-conformance and repair, replacement or other correction may be recovered from Seller by equitable price reduction or credit against any amounts that may be owed to Seller under this purchase order or another. Payment for any goods or services shall not be deemed acceptance and in no event shall Buyer incur any liability for payment for rejected goods or services.
- RAW MATERIAL REQUIREMENT (S) It is Sellers responsibility to provide conforming materials as per Cole’s drawings specifications. Cole at its sole discretion would conduct random chemical analysis on parts to validate raw material conformity and shall reject any non-conformance and any expenses incurred would become Seller’s responsibility
- WARRANTIES. By accepting this Purchase Order, Seller warrants that the goods and services furnished will be free from defects in materials and workmanship, merchantable and in full conformity with Buyer’s specifications, drawings, and data, and Seller’s descriptions, promises, or samples, and that such goods will be fit for the Buyer’s intended use. Where applicable, the Seller warrants that the goods covered by this Purchase Order are in compliance with all laws, regulations, rules, and orders relating to the importation of goods into the United States, the exportation of goods out of the country of origin, the transit of goods through intermediate countries and the sale and use or foreign made goods in the United States. Seller further warrants that it has obtained all permits, licenses, and certifications necessary for the goods to be exported out of the country of origin, imported in the United States, delivered to Buyer and used or sold within the United States.
- TITLE; RISK OF LOSS. Title shall pass to Buyer upon Buyer’s receipt of goods at destination. Risk of loss of all goods shall remain in Seller until receipt by Buyer at destination, unless otherwise specified in this Purchase Order, except for loss occasioned by gross negligence or willful neglect of Buyer
- CONFIDENTIALITY; LIMITED USE. Unless otherwise agreed by Buyer in writing, Seller shall keep confidential and not disclose to any third party, any confidential and/or proprietary materials provided by Buyer to Seller in connection with Seller’s performance of this Purchase Order or prepared by Seller specifically for Buyer pursuant to this Purchase Order, including but not limited to any drawings, specifications, raw materials, components, data, business information or plans, customer lists or other customer information (“Confidential Information”). Seller shall not make any copies of Confidential Information except as specifically authorized by Buyer in writing. At the completion of this Purchase Order, or upon Buyer’s request, Seller shall promptly return to Buyer all Confidential Information not consumed in the performance of this Purchase Order, together with any copies in Seller’s Possession. Seller shall use Confidential Information solely for Sellers performance of this Purchase Order for Buyer, and Seller shall not, without Buyer’s written consent, directly or indirectly use Confidential Information or information derived there from in performing services or providing goods for any other customer of Seller, or any other person or entity.
- RESOLUTION OF CONFLICTS OR INCONSISTENCIES OCCURRING IN THE ORDER. It is Seller’s responsibility to comply with this Purchase Order and all referenced documents, and to clarify with Buyer any inconsistencies or conflicts in any parts of the Purchase order or referenced documents. Should Seller fail to contact Buyer to resolve conflicts or inconsistencies, Seller will be solely responsible for errors resulting from said conflicts or inconsistencies. Where documents are referenced, the latest part revision on Cole’s drawing at the time of order placement shall apply.
- BUYER’S TERMS AND CONDITIONS APPLY. Acknowledgment of the Purchase Order, shipment of any goods, or commencement of work pursuant to the Purchase Order shall be deemed an acceptance of these General Terms and Conditions. No modification of or release from this Purchase Order shall be binding unless agreed to in writing by the parties and specifically labeled as a modification or release. Unless specifically agreed to otherwise by Buyer and Seller, these terms and conditions supersede any submitted by Seller in any proposal or acknowledgment.
- EXTRA CHARGES. No charges for extras or for cartage or boxing or storage will be allowed unless the same has been agreed upon in writing by Buyer. All goods must be forwarded in accordance with Buyer’s shipping instructions, otherwise the difference in freight rate will be charged to Seller.
- SUBSTITUTIONS. No substitution of materials or accessories may be made without written permission from Buyer.
- CUMULATIVE REMEDIES; WAIVERS; SURVIVAL OF WARRANTIES. The remedies herein reserved to Buyer shall be cumulative, and additional to any other or further remedies provided in law or equity. No waiver by Buyer of any term or condition of this Purchase Order shall be construed as a permanent waiver of such term or condition or of any other term or condition. Seller’s warranties shall survive the completion or cancellation of this Purchase Order.
- GOVERNING LAW. This Purchase Order shall be governed by the laws of the State of California, U.S.A, except for its provisions regarding principles of conflicts of laws, and except to the extent that federal communications law shall apply. Any court action arising under this order shall be venued in Orange County, California, U.S.A., in either federal or state court, as is appropriate.
- “GOODS” AND “SERVICES”. The term “goods” as used herein means any and all materials, parts, products, machines, tooling, test equipment, technical data, computer software, computer software documentation, and other tangible items or documentary information furnished or required to be furnished by Seller under this order. The term “services” means any and all technical assistance, support, maintenance, consultation, construction work, chemical processing (plating) and other effort furnished or required to be furnished by Seller under this order other than labor furnished in connection with the production of goods.
- ENTIRE AGREEMENT. Unless superseded by a specific signed agreement between Buyer and Seller, this agreement shall include the Purchase Order, these General Terms and Conditions, and all attachments referred to in the Purchase Order or in the General Terms and Conditions, and it shall constitute the entire agreement of the parties with regard to the subject matter contained herein. All other prior or contemporaneous representations, warranties, covenants, or agreements between Seller and Buyer, or their representatives, with respect to the subject matter are hereby superseded. The term “Purchase Order” as used herein means the first and continuation pages of Cole’s completed Purchase Order form, including any special provisions contained therein. This agreement may not be modified except by mutual written agreement of the parties.
- NEW MATERIALS. The work to be delivered hereunder shall consist of new materials, no used, or reconditioned, or of such age as to impair its usefulness of safety.
- REACH COMPLIANCE. Cole Instrument is committed to compliance with the European Union’s Registration, Evaluation, and Authorization of Chemicals Directive (REACH) that came into force on June 1, 2007. The objective of REACH is to improve the protection of human health and the environment by placing greater responsibility on industry to identify and manage the risks from certain substances and to provide safety information on those materials. Its scope covers goods imported to or produced within the European Union (EU). In particular, REACH requires registration when certain materials, whether used alone or within an article, are imported into or produced within the EU to the extent that the amount of any such material exceeds 1 metric ton per year and the material is present in concentrations above 0.1% wt/wt per article. At present, the materials subject to this directive are those that were identified by the European Chemical Agency (ECHA), on their list of substances considered “Substances of Very High Concern” (SVHC). Cole Instrument has completed a preliminary evaluation and believes that none of our products contain any of the identified SVHCs in amounts that exceed those thresholds, thus NO REGISTRATION IS REQUIRED. However, as a responsible supplier we will continue to monitor our products, processes and vendors for compliance on an ongoing basis, and are committed to meeting the spirit of this regulation for shipments worldwide, including shipments to countries beyond the EU. Should you be aware of any of your products having registration or other reporting requirements specified in REACH please contact the Cole’s Instrument purchasing agent with details. Otherwise we are taking the position your products are unaffected. If you require further information on the REACH directive and how it may affect our products, please contact us.
- CONFLICT MINERALS COMPLIANCE. Generally, Conflict Minerals collectively refers to cassiterite, columbite, tantalite, gold, wolframite, or their derivatives, including tantalum, tin and tungsten, which originate from the Democratic Republic of the Congo or specified adjoining countries. Cole Instrument as a privately held corporation, is not subject to the Conflict Minerals rules and reporting requirements. However, we understand that our customers may be, and we are committed to helping our customers comply with their reporting requirements. In order to determine if our manufactured products contain Conflict Minerals, we have conducted a survey of our key suppliers to ascertain their use of any Conflict Minerals in the materials they supply to us. The results of that survey demonstrate that our key suppliers do not use Conflict Minerals in the materials they supply to us. Consequently, we can in turn represent that, to the best of our knowledge, our products do not contain Conflict Minerals. We will continue to work with our key suppliers to ensure that we are able to identify the use of Conflict Minerals in our supply chain, and the representations made in this compliance statement remain accurate. To that end, we reserve the right to amend this statement at any time based on subsequent developments or information. Should you become aware of any of your products having Conflict Minerals please contact the Cole’s purchasing agent(s) with details. If you have any other questions or concerns regarding this statement, please do not hesitate to contact us.
- EXTERNAL PROVIDERS AWARENESS. Providers are to ensure that they have a process in place to make persons aware of:
Their contribution to product safety
The importance of ethical behavior
- COMMUNICATIONS. Methods of communication for any means of acknowledgment, update, requesting change, correction, or addition shall be in writing. Additional criteria regarding communications is as follows:
All communications, requested documents, notifications, acknowledgments, certifications, reports shall be in English. External providers shall inform Cole Instrument within 24 hours of discovery of suspected nonconforming product or material having been shipped regardless of destination. External providers shall inform Cole Instrument of any changes in its certification, registration, or accreditation within 48 hours of receiving notification of the change.
