1. DEFINITIONS. The term “Buyer” shall refer (as applicable) to IQE PLC or the IQE affiliate issuing the purchase order which shall be governed by these Terms and Conditions of Purchase. The term “Seller” shall refer to the supplier designated on the face hereof and shall also include its subcontractors, independent contractors and all other classes of persons performing any type of work under this Agreement. The term “goods” and “services” shall refer to the materials, supplies, items, equipment, work and/or services covered by this Agreement. The term “Agreement” shall refer to the purchase order for the goods and services, together with these Terms and Conditions of Purchase.
2. ENTIRE AGREEMENT AND SEVERABILITY. This Agreement, together with any specifications, drawings, schedules or amendments, constitutes the entire agreement between Seller and Buyer. Any acceptance of the purchase order by Seller shall be expressly limited to these Terms and Conditions of Purchase and no additional or different terms contained in any acceptance or confirmation issued by Seller shall be binding upon Buyer unless otherwise expressly agreed in writing by Buyer. Furthermore, Seller agrees and acknowledges that any additional or different terms contained in any confirmation or communication delivered to Buyer shall be deemed to materially alter this Agreement, and that Buyer is hereby deemed to have objected to any such additional or different terms at any time delivered by Seller. Except as permitted herein, no amendment or modification of this purchase order shall be effective unless in writing and signed by an authorized representative of Buyer and Seller.
3. QUALITY. Seller shall meet all quality requirements of Buyer and all quality requirements of Buyer’s customers, including but not limited to, all specifications, drawings and other contract descriptions as set forth on the face of the purchase order. The quality of the goods shall be subject to the satisfaction of the Buyer, who shall be entitled to reject non-conforming product at any time.
4. DELIVERY. Seller shall make delivery to the specified destination by the due date stated on the purchase order or as otherwise agreed in writing by both parties. Any such stated due date is of the essence and the Seller shall notify buyer promptly if it anticipates that delivery will not be on time. Seller shall incur all costs related to unauthorized early delivery or any late delivery. The Seller warrants that upon acceptance of delivery at the destination, the Seller will convey to Buyer good and marketable title to all goods free and clear of any liens or encumbrances of any kind. Buyer shall not be obliged to buy or pay for, and Buyer or its designated representative may at any time after delivery reject, all or any part of a given delivery of goods and services that Buyer or its designated representative determine does not conform to the purchase order or agreed specifications. The Seller shall reacquire title to, and bear all risks of loss of such non-conforming goods and shall at its own expense be responsible for the return or disposal of such non-conforming goods and services. Seller shall incur all costs related to buyer’s receiving non-conforming goods which costs include but are not limited to handling, storing and testing. Unless otherwise expressly specified by Buyer in writing, the price to be paid for the goods or services to be furnished hereunder includes the cost of delivery F.O.B. place of destination at Buyer’s place of business specified in the purchase order. If delivery of goods or services is not completed by the due date, Buyer may, at its option, cancel the purchase order without any liability of any nature, assert such other remedies as may be available pursuant to applicable law or approve a revised delivery schedule. Buyer’s acceptance of any part of a purchase order shall not bind Buyer to accept future shipments, nor deprive Buyer of its right to return goods already accepted. Until accepted by Buyer, Seller shall bear the risk of loss to all goods and services furnished herein and shall be responsible for insuring those goods and services. Unless otherwise specified by Buyer, shipments will be packed, bundled and crated in accordance with standard commercial practice for domestic or export shipment as applicable. Unless otherwise stated in the purchase order, no charge will be permitted for packing, crating, drayage or storage.
5. WARRANTY. The Seller warrants for a period of one (1) year from the date of Buyer’s acceptance of goods and services that all goods and services: (a) strictly conform to the description contained in the purchase order, the quality and agreed specifications stated or incorporated as a schedule, by reference or otherwise; (b) are merchantable; (c) fit for the purpose intended; and (d) are free of any defects in design, materials and workmanship. If any goods or services furnished hereunder do not meet the warranties specified in these Terms and Conditions of Purchase, Buyer may, at its option, require Seller: (x) to correct at no cost to Buyer, any defective or non-conforming goods or services by repair or replacement; or (y) return such defective or non-conforming goods at Seller’s expense to Seller and recover from Seller the order price thereof, together with other changes permitted by applicable law; or (z) correct the defective or non-conforming goods or services itself and charge seller with the cost of such correction. The foregoing remedies are in addition to all other remedies at law or in equity or under this order and shall not be deemed to be exclusive.
By Seller’s acceptance of this purchase order, the Seller acknowledges its counterfeit risk mitigation obligations that the goods to be delivered hereunder shall be and only contain materials obtained directly from the Original Component Manufacturer (OCM) or the Original Equipment Manufacturer (OEM) or an Authorized Distributor, not be or contain counterfeit items, and contain only authentic, unaltered OCM/OEM labels and other markings. Further, the Seller shall notify Buyer in writing immediately in the event that any material to be delivered cannot be procured in accordance with this requirement and Seller must obtain Buyer’s prior written authorization if an alternative source is required and for any deviations from the counterfeit Risk Mitigation requirements applicable to the Purchase Order. The contents of this paragraph shall be applicable to Seller’s suppliers at all tiers. It is the Sellers responsibility to enforce this application.
6. PRICE WARRANTY. Seller warrants that the prices for the goods and services sold to Buyer hereunder are not less favorable than those currently extended to any other customer for the same or similar goods in similar quantities. In the event the Seller reduces its price for such goods or services during term of this Agreement, Seller agrees to reduce the prices for the goods and services correspondingly. Seller warrants that prices shown on the purchase order shall be complete, and no additional charges of any type shall be added without the Buyer’s express written consent. Such prohibited additional charges include but are not limited to shipping, packaging, labeling, duties and taxes, storage, insurance, boxing and crating.
7. INSPECTION. Notwithstanding any prior inspections or payments, Buyer shall have the right to reject goods that are in Buyers’ judgment defective or non-conforming. In the event the Buyer receives goods whose defects or non-conformity is not apparent on examination, Buyer reserves the right to inspect the goods by lot. In the event of any defect or non-conformity, Buyer may return the goods and reject or revoke delivery or exercise the other remedies stated herein or that are otherwise available under applicable law.
8. INTELLECTUAL PROPERTY. Seller hereby warrants and represents to Buyer that the goods and services do not infringe, either directly or indirectly, or in any way contribute to the infringement on the patents, copyrights, trademarks or any other intellectual property rights of any other person, nor do the sale and use of the goods and services by Buyer infringe upon the intellectual property rights of any person or otherwise constitute unfair competition. Seller shall and hereby covenants to protect, defend, indemnify and hold Buyer (its officers, directors, owners, affiliates, parent companies, subsidiaries, insurers, reinsurers, successors, assigns and customers) harmless from all claims, losses, suits, damages, liability and all expenses (including but not limited to court costs and reasonable attorney’s fees) arising out of or in any way related to any asserted or alleged patent, copyright, trademark or other intellectual property rights, including (without limitation) the infringement (direct or indirect) or contributory infringement thereof by reason of the manufacture, use or sale of the goods and services by Buyer and/or Buyer’s customers.
9. TAXES. Except if title has passed to Buyer or Buyer’s customers under other provisions of this Agreement, title to the Goods and Services shall pass to buyer upon delivery of the same to the F.O.B. point named the purchase order.
10. HAZARDOUS MATERIALS. Seller shall notify Buyer of every good or service ordered hereunder that contains material hazardous that may be injurious to the health or physical safety of persons even though said hazard or injury may occur due to mishandling or misuse of the goods and services. In addition, Seller shall identify the hazardous or injurious material and notify Buyer of the effects of such material on human beings and the physical manifestations that could result. For all goods and services so identified, Seller shall supply Buyer warning labels or instructional materials appropriate to warn persons coming in contact therewith of the hazard and its effects.
11. INDEMNIFICATION. Seller further agrees and covenants to protect, defend, indemnify and save Buyer (its officers, directors, owners, affiliates, parent companies, subsidiaries, insurers, reinsurers, successors, assigns and customers) harmless from and against any claims, damages, demands, losses, suits, liability, expenses and costs, including (without limitation) court costs and attorneys’ fees, arising out of injury or property damage to, or the death of, any subcontractor, employee, agent, customer, representative or invitee of Buyer or Seller, or any other person arising out of Seller’s performance of this Agreement, however such injury or death may be caused and whether caused or alleged to be caused by the negligence of Buyer or its agents. Seller shall further protect, defend, indemnify and hold Buyer (its officers, directors, owners, affiliates, parent companies, subsidiaries, insurers, reinsurers, successors, assigns and customers) harmless of, from and against all claims, costs, expenses and liability (including, without limitation, reasonable attorneys’ fees) arising out of or in any way related to personal injury, death, property loss, damage attributed to or in any way caused by the goods, services or other items supplied by Seller pursuant to this Agreement, including, without limitation, latant defects in any goods and services provided. To the extent that Seller is to provide services of any nature hereunder, Seller shall and hereby covenants (at no additional cost to Buyer) to procure and/or maintain such policies of insurance (to include, without limitation, general or commercial liability, automobile, completed operations, errors and omissions, and workers’ compensation) as are typically maintained in the performance of the services to be provided hereunder, and Seller shall, prior to commencing any services, deliver to Buyer, certificates of insurance evidencing said policies of insurance and in amounts reasonably satisfactory to Buyer. All insurance to be maintained by Seller shall name Buyer as an additional insured and give Buyer no less than thirty (30) days prior written notice of any cancellation and/or non-renewal thereof. To the extent that Seller fails or is unable to obtain or maintain insurance reasonably satisfactory to Buyer, Buyer may terminate the applicable purchase order without penalty, after which the parties shall have no further rights, duties or obligations hereunder.
12. FORCE MAJEURE. Buyer may delay delivery or acceptance occasioned by causes beyond its reasonable control. Seller shall hold such Goods at the direction of the Buyer and shall deliver them when the cause affecting the delay has been removed. Buyer shall be responsible only for Seller’s direct additional costs in holding the Goods or delaying performance of a purchase order at Buyer’s request. In addition, neither party shall be liable for damages for delay in delivery arising out of causes beyond its reasonable control and without its fault or negligence, including but not limited to acts of God or of the public enemy, acts of any Government authority, fires, floods, earthquakes, epidemics, strikes, embargoes, or unusually severe weather. If the delay is caused by the delay of a subcontractor of Seller and if such delay arises out of causes beyond the reasonable control of both Seller and the subcontractor, and without fault or negligence of either of them, Seller shall not be liable to Buyer unless the goods to be furnished by the subcontractor were obtainable from other sources in sufficient time to permit the Seller to meet the required delivery schedule. Seller will notify Buyer in writing within three (3) days after becoming aware of any cause for delayed delivery.
13. APPLICABLE LAW. This Agreement shall be governed by and construed in accordance with the internal laws of the Commonwealth of Pennsylvania without regard to any conflicts of law or choice of law rules or provisions that would necessitate the application of the laws of any other jurisdiction.
This contractor and subcontractor shall abide by the requirements of Executive Order 11246 (41 CFR 60-1 through 60), as amended, and the applicable regulations in 41 CFR §60-300.5(a) and 41 CFR §60-741.5(a). If applicable, the subcontractor agrees to comply with referenced regulations. Further, if applicable, agree to file Standard Form 100 (EEO-1) and the VETS-100A. This contractor and subcontractor shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, race, age, gender, gender identity, sexual orientation, religion, national origin, citizenship, marital status, genetic information or any other personal characteristic protected by law. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, age, gender, gender identity, sexual orientation, religion, national origin, citizenship, marital status, veteran’s status, disability, genetic information or any other personal characteristic protected by law.
The contractor will not discharge or in any other manner discriminate against employees or applicants because they have inquired about, discussed, or disclosed their own pay or the pay of another employee or applicant. However, employees who have access to the compensation information of other employees or applicants as a part of their essential job functions cannot disclose the pay of other employees or applicants to individuals who do not otherwise have access to compensation information, unless the disclosure is (a) in response to a formal complaint or charge, (b) in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or (c) consistent with the contractor’s legal duty to furnish information.
14. MEDIATION/DISPUTES. If a dispute arises out of this Agreement which Buyer and Seller cannot resolve through negotiation, the dispute will (except in cases where Buyer is entitled to equitable relief) be mediated before proceeding to litigation according to the Commercial Mediation Procedures of the American Arbitration Association (“AAA”). Mediation may be demanded by Buyer or Seller and must be held within thirty (30) days of an unsuccessful negotiation session. Buyer and Seller shall mutually agree upon a mediator. If the parties cannot agree upon a mediator within ten (10) days of either party requesting mediation, the mediator shall be selected by AAA in accordance with the Commercial Mediation Procedures. The mediation shall be conducted in Bethlehem, Pennsylvania or at another location mutually agreed to between Buyer and Seller. Any cost of the mediation, including any fee charged by the mediator and cost of using the designated location, shall be shared equally by the parties. The mediation process itself and any information or disclosures revealed by either party to the mediator or to the other party during the mediation process will be confidential and may not be referred to in any testimony evidence offered in any subsequent proceeding if the mediation is not successful. The foregoing mediation procedure shall not be a prerequisite in cases where injunctive or other equitable interim relief is sought by Buyer. If a dispute arises out of this Agreement and the parties cannot resolve the dispute through negotiation or the mediation process described above, Buyer may elect to enforce its rights in the Court specified herein below. If Buyer or Seller takes legal action to enforce its rights in a court of competent jurisdiction, each party shall be responsible for its own expenses, provided, however, that the substantially prevailing party shall be entitled to all reasonable attorneys’ fees and court costs incurred for such dispute and the resulting action. The exclusive venue of any litigation arising out of or in any way relating to this Agreement shall be the Court of Common Pleas of Northampton County, Pennsylvania or the United States District Court for the Eastern District of Pennsylvania. The Parties hereby submit to the exclusive jurisdiction of said Courts, and agree that venue in said Courts shall be proper in all respects.
15. PUBLICITY. Seller shall obtain the Buyer’s permission before disclosing by way of press release or otherwise to any third party anything which relates to the goods or the supply thereof except insofar as is necessary for the information of the Seller’s suppliers.
16. TERMINATION. Buyer shall have the right to terminate any purchase order in whole or in part at any time by written notice. In the event of termination other than for default by Seller, and only in such event, if Seller at the time of such termination shall have in stock or on firm order any raw, semi-processed or completed materials for use in fulfilling Buyer’s purchase order, then: (a) in the case of completed materials, Buyer may, at its option, either require delivery of all or part of the completed materials and make payment therefore at the agreed price, or portion of the agreed price fairly allocated for the completed items, or (without taking delivery thereof) pay Seller the excess, if any, of the agreed price over the market price at the time of termination; and (b) in the case of raw or semi-processed material, Buyer may, at its option, either require Seller to complete and deliver all or part of said materials at the agreed price, or (without taking delivery thereof) pay Seller with respect to such raw materials or semi-processed materials, which are properly applicable to Buyer’s purchase order, a portion of the agreed price based on the stage of completion of such materials and reduced by the value of such materials at such state of completion; and (c) in case of materials which Seller has on firm order hereunder, Buyer may, at its option, either take an assignment of Seller’s rights under such orders or pay the cost, if any of settling or discharging Seller’s obligation under such order. The parties hereby expressly agree and acknowledge that the provisions of Section 16(a)-(c) above shall only apply in the event that Buyer’s purchase order pertains to goods. In the event that Buyer’s purchase order is for services, and Buyer terminates Buyer’s purchase order other than for default by Seller, and only in such event, Buyer agrees to pay Seller its actual and reasonable costs for rendering the services provided hereunder up to the date of Buyer’s termination, and thereafter Buyer shall have no further obligations to Seller hereunder of any nature. The foregoing provisions shall not limit Buyer’s right to cancel Buyer’s purchase order, or any part thereof, by reason of Seller’s default in failing to comply with any or all of the terms and conditions hereof, in which event Buyer may procure the goods or services called for herein from other sources and Seller shall be liable to Buyer for any and all damages resulting from Seller’s default (including, without limitation, consequential and incidental damages) available to pursuant to applicable law and the terms of this Agreement. In the event of Seller’s default hereunder, Buyer may, by written notice to Seller, terminate Buyer’s purchase order in whole or in part. In the event of partial termination, Seller shall not be excused from performance of the non-terminated balance of goods or services to be provided pursuant to Buyer’s purchase order. Buyer may cancel all purchase orders without liability for the undelivered portion of the items ordered hereunder in the event Seller becomes insolvent, makes an assignment for the benefit of creditors or there is filed by or against Seller a petition of bankruptcy, receivership, or reorganization proceedings.