Conditions of Purchase
WE ARE AN EQUAL OPPORTUNITY EMPLOYER
1. ACCEPTANCE. (a) The order incorporating these Conditions ofPurchase becomes a binding contract when it is accepted by Vendor. Either an
acknowledgement by Vendor or the commencement of performance by Vendor
shall constitute acceptance. Acceptance may be only on the exact terms herein
set forth. No condition stated by Vendor in accepting this order shall be binding
on Purchaser if different from or in addition to the conditions set forth herein,
unless agreed to in writing by Purchaser.
(b) If this order follows an offer by Vendor setting forth Vendor’s
conditions of sale, Purchaser’s acceptance of Vendor’s offer is expressly
conditioned on Vendor’s assent to the additional or different conditions set
forth herein. Prior to or in the absence of Vendor’s assent to the Purchaser’s
conditions, there shall be no agreement in effect between Vendor andPurchaser.
2. SPECIFICATIONS. Vendor shall comply with any specifications statedon the face of this order or incorporated herein, and with any applicable UnitedStates Government specifications.
Upon request Vendor shall furnish
Purchaser with a certificate executed by an authorized representative of Vendor
confirming Vendor’s compliance with all applicable specifications.
3. PRICES. Unless otherwise specified, the prices set forth in this order
include all applicable federal, state and local taxes and all shipping costs, duties
and other charges.
4. ASSIGNMENT. Neither this order or its performance nor any interest
herein nor any monies due or to become due Vendor hereunder may be
assigned or otherwise transferred by Vendor without the prior written consent
of Purchaser.
5. SUBCONTRACTING. Vendor may not enter into a subcontract for the
procurement of any items covered by this order in completed or substantiallycompleted form without the prior written consent of Purchaser.
6. TIME OF THE ESSENCE. Time is of the essence under this order.
Failure of Vendor to make delivery of items or provide services within the time
specified on the face hereof, or within any extension specified by a written
amendment hereto, shall be a breach hereof. If no time is specified herein,
Purchaser may, by reasonable advance notification to Vendor, terminate thisorder in whole or part if Vendor fails to make delivery of items or to provide
services within a reasonable time after the date of this order.
7. EXCUSABLE DELAYS. Vendor shall not be charged with any liability
for failure or delay in performance when such failure or delay is due to any
cause beyond the control and without the fault or negligence of Vendor;
provided that Vendor shall give to Purchaser prompt notice in writing when it
appears that such delay shall cause delay in performance under this order. If
any such failure or delay shall threaten to impair Purchaser’s ability to meetdelivery requirements for its products or to meet contractual obligations,Purchaser shall have the right, at its option and without being under any
liability to Vendor, to cancel by notice in writing to Vendor the portion or
portions of this order so affected. Correspondingly, Purchaser shall be excusedfor failure or delay in its performance hereunder due to any cause beyond its
control and without its fault or negligence.
8. WARRANTIES. Vendor warrants that all items delivered and services
provided hereunder shall be free from defects in workmanship, material andmanufacture; shall comply with the requirements of this order, including any
drawings or specifications incorporated herein or samples furnished by Vendor;
shall be non-surplus goods of new manufacture and, if of Vendor’s design,
shall be free from defects in design. Vendor further warrants that all items
purchased hereunder shall be of merchantable quality and shall be fit andsuitable for the purposes intended, whether expressed or reasonably implied.
The foregoing warranties shall survive any delivery, inspection, acceptance or
payment by Purchaser, and shall run to Purchaser, its successors, assigns,
customers and any third parties injured in person or property by reason of any
breach thereof.
9. INSPECTION. (a) Purchaser shall have the right to inspect and test all
work under this order at all reasonable times, including during manufacture.
Vendor shall furnish without additional charge all reasonable facilities andassistance for safe and convenient inspections or tests.
(b) Notwithstanding any prior examination, payment or the passage of title,
all items are subject to final inspection and acceptance at Purchaser’s plant. If
the time for final inspection is not specified on the face of this order, such final
inspection shall be made within 180 days after receipt of the items at
Purchaser’s plant.
10. DEFECTIVE OR NONCONFORMING ITEMS. (a) If any items arefound to be defective or otherwise not in conformity with the requirements ofthis order, Purchaser, in addition to its other rights and remedies, may reject allor some of such items and require either their correction or their replacement at
Vendor’s expense. Purchaser may charge back to Vendor’s account the amount
paid for rejected items pending redelivery of same or replacements therefor.
Any items previously rejected shall not be resubmitted for Purchaser’s
acceptance without concurrent notice of the prior rejection.
(b) All risk of loss or damage to the items to be delivered hereunder shallbe upon Vendor until such items are delivered at the F.O.B. point specified inthis order. In addition, Vendor shall bear all risk of loss or damage to items
rejected by Purchaser after notice of rejection to Vendor until such items or
replacements therefor are redelivered, except for any loss or damage resulting
from the negligence of officers, employees, or agents of Purchaser acting
within the scope of their employment.
(c) No action taken by Purchaser under this section shall be deemed toextend any delivery dates specified on the face of this order.
11. TERMINATION FOR DEFAULT. Purchaser may terminate this orderin whole or in part for default, without further cost or liability to it, if Vendor
fails to comply with any of the order, including these Conditions of Purchase.
In the event of termination pursuant to this section, Purchaser may procure
upon such terms and in such manner as it may deem appropriate, items orservices similar or substantially similar to those so terminated, and Vendor
shall be liable to Purchaser for any excess cost, direct or indirect, resulting
therefrom. Vendor shall continue performance to the extent not terminated.
Without limiting the foregoing, Purchaser shall have the right to terminate thisorder or any part thereof in the event of the happening of any one of thefollowing: the commencement by Vendor of a voluntary case in bankruptcy;
the commencement against Vendor of an involuntary case in bankruptcy, if
such a case is not dismissed within thirty days from the date of filing; theappointment of a receiver or trustee for Vendor if such an appointment is notvacated within thirty days from the date thereof; the execution by Vendor of anassignment for the benefit of creditors; Vendor’s failure to perform or delay inperforming hereunder which failure or delay is not otherwise excusable
hereunder; and Vendor’s failure to provide adequate assurance of due
performance when Purchaser has reasonable grounds for insecurity with respect
to such performance and following a written demand by Purchaser for suchassurance.
12. TERMINATION FOR CONVENIENCE. (a) Purchaser may terminate
this order in whole or in part whenever Purchaser determines for any reason
that such termination is in its best interests. Termination hereunder shall beeffected by delivery to Vendor of a notice of termination specifying the extent
to which performance of work under this order is terminated and the date uponwhich such termination becomes effective.
(b) Vendor shall stop work under this order and terminate all orders andsubcontracts for materials, services or facilities in accordance with and as
appropriate under the termination. With respect to the termination by Vendor ofsuch related orders and sub-contracts, Vendor shall settle outstanding liabilities
and claims only with the approval of Purchaser, except to the extent that suchapproval is waived by Purchaser.
(c) Upon termination under this section, Purchaser shall not pay for goods
ordered, work in process, or labor for any item cancelled more than ninety days
prior to delivery unless otherwise previously agreed in writing.
(d) Vendor agrees to transfer title and deliver to Purchaser such informationand items which, if the order had been completed, would have been required to
be furnished to Purchaser, including completed or partially completed plans,drawings and information and materials or equipment produced, in process or
acquired in connection with performance of the order.
(e) This section in no way limits Purchaser’s right to terminate this orderfor default.
13. CHANGES (a) Purchaser may at any time by written order to Vendor
and without notice to sureties, if any, make changes within the general scope of
this order in any one or more of the following: (1) quantity of items or services
ordered; (2) drawings, designs or specifications; (3) delivery or performanceschedules; (4) shipping and billing instructions; (5) place of delivery.
(b) Vendor shall proceed promptly to make such changes in accordancewith the terms of Purchaser’s written change order. If any such change causes
an increase or decrease in the cost of performance of this order, or in the timerequired for performance, an equitable adjustment shall be made in thepurchase order price or the performance schedule or both and this order shall beamended in writing accordingly. Any claim by Vendor for adjustment under
this provision shall be asserted in writing within thirty days from the date of thewritten order effecting the change. In the absence of such notification,
Purchaser shall not be obligated to consider Vendor’s claim for an equitableadjustment resulting from the change. In no event shall Purchaser be obligatedto consider any claim for an increase in price after final payment to Vendor
hereunder. Where the cost of property made obsolete or excess as a result ofchange is included in Vendor’s claim for adjustment, Purchaser shall have theright to prescribe the manner of disposition of such property.
14. INFORMATION AND INVENTIONS. (a) All information,
specifications and drawings furnished to Vendor in connection with the ordershall be used only in the manufacture of items or the performance of services
for Purchaser, and shall be considered the property of Purchaser and shall not
be disclosed by Vendor. In the absence of a written agreement to the contrary,
all information, specifications and drawings furnished to Purchaser inconnection with this order shall be considered non-proprietary and may be usedor disclosed to third parties by Purchaser as Purchaser chooses.
(b) Any inventions, sole or joint, made by employees of Vendor and arisingout of the subject matter of this order, as amended or extended, shall be fully
disclosed and completely assigned by Vendor to Purchaser without further
compensation.
15. INDEMNIFICATION. Vendor agrees to indemnify and hold harmless
Purchaser, its successors, assigns and customers, against any and all claims,
losses, costs or damages based upon or arising out of any infringement or
alleged infringement or any letters, patent, trademarks or copyrights by reasonof the sale or use by Purchaser or its customers of any item, service or processsold or furnished under this order, unless the item, service or process is made or
furnished according to Purchaser’s drawings, designs or specifications. Vendor
further agrees to indemnify and hold harmless Purchaser, its successors andassigns from and against any and all claims, losses, costs or damages based
upon or arising out of (1) any defect in any item furnished under this order, (2)any construction, installation, services or facilities furnished under or inconnection with this order, (3) the use of any equipment or goods furnished toPurchaser on an experimental basis, or (4) any violation by Vendor of any
governmental law, ordinance, regulation or order with respect to any item,
service or process sold or furnished under this order.
16. MATERIAL, TOOLING AND EQUIPMENT FURNISHED BY
PURCHASER. (a) All material, tooling and equipment which Purchaser isrequired hereunder to furnish to Vendor shall be delivered in sufficient time toenable Vendor to meet its performance schedule. If any such material, toolingor equipment is not delivered to Vendor in sufficient time, the resultant delay or
Vendor non performance shall be excusable. If Purchaser shall terminate thisorder as a result of any such delay in performance or failure to perform byVendor, such termination shall be for the convenience of Purchaser andsettlement shall be made in accordance with section 13(b) hereof. Purchaser
shall have no liability to Vendor by reason of any delay in delivery of, or
failure to deliver, any such material, tooling or equipment.
(b) All risk of loss or damage to any material, tooling or equipment
furnished by Purchaser shall be upon Vendor. Vendor shall replace by purchasefrom Purchaser at Purchaser’s price then current any such material lost or
damaged because of spoilage, breakage or defective workmanship of Vendor inexcess of any allowance made thereof or by Purchaser. Upon completion of thisorder, any of the material furnished by Purchaser and not consumed in theperformance of this order and any tooling or equipment furnished by Purchaser
shall be returned to Purchaser or otherwise disposed of in accordance with
instructions from Purchaser.
(c) When Purchaser furnishes any material for use in furnishing the items
or services called for hereunder, Vendor shall neither substitute material fromany other source nor alter the physical or chemical properties of the material
furnished to it except in accordance with applicable Purchaser specifications orPurchaser’s written approval.
17. SERVICES SUPPLIED BY VENDOR. If this order covers theperformance of services on the premises of Purchaser, Vendor agrees to furnish
certificates from its insurance carriers showing that it carries workmen’scompensation, automobile liability, public liability, and property damage
insurance coverage with limits satisfactory to Purchaser. If Vendor is a selfinsurer it must have the appropriate state agency of the state in which theservices are to be performed furnish to Purchaser a certificate to the same
effect. Vendor will be responsible for all materials and workmanship until theitems or services are completed and accepted by Purchaser. Vendor further
agrees to keep Purchaser’s premises free and clear of all mechanic’s liens.
Purchaser may withhold any and all payments due under this order until
Vendor has furnished to its satisfactory evidence that all bills for labor andmaterial referable to this order have been paid in full by Vendor.
18. SHIPPING AND BILLING. (a) Packing. All items shall be packed in asuitable container for protection in shipping and storage, and in accordancewith any specifications of Purchaser. Vendor shall be responsible for all
packaging and packing costs unless otherwise agreed in writing by Purchaser.
(b) Marking. Vendor shall indicate plainly the number of this order on all
packages shipped pursuant hereto and the order number, the part number, andthe manufacturing order number, if there is one, must appear on all packing
lists, bills of lading, and invoices.
(c) Shipping. Unless otherwise provided in this order, all items shall bedelivered at Vendor’s expenses F.O.B. Purchaser’s receiving dock. If Purchaser
agrees to pay shipping costs, Vendor shall nevertheless pay shipping costs tothe extent that they exceed the cost of the mode of shipment specified on theface of this order or, if no mode is specified, any such costs in excess of normal
shipping costs, including additional costs, necessitated by reason of any ofdelay by Vendor in making deliveries hereunder.
(d) Value. If Purchaser agrees that the delivery point shall be F.O.B. origin,
Vendor shall make no declaration of value above $50.00 on a bill of lading.
(e) Invoice. Vendor shall render to Purchaser’s Accounts Payable
Department on the date of shipment a separate invoice in duplicate for each
shipment made pursuant to this order and shall indicate thereon the number ofthis order, the part number, and the manufacturing order number, if there is one.
Any discount period shall be calculated from the date an acceptable invoice isreceived or the date items are received by Purchaser, whichever is later.
19. COMPLIANCE WITH STATUTES AND REGULATIONS. Vendor
warrants and certifies that in the performance of this order it will comply withall applicable statutes, rules, regulations and orders, now in effect or hereafterenacted, of the United States and of any state or political subdivision of any
state, including statutes, rules, regulations and orders pertaining to labor,
wages, hours and other conditions of employment, wage and price ceilings, if
applicable, the Fair Labor Standards Act, as amended, and notification
requirements pertaining to employee rights under the federal labor laws
pursuant to 29 C.F.R. Part 471, Appendix A to Subpart A, incorporated hereinby reference. The supplier confirms they have exercised proper due diligenceto identify conflict minerals, as defined by Section 1502 of the Dodd-Frank
Wall Street Reform and Consumer Protection Act, and counterfeit components
in their supply chain, have disclosed this information to the Purchaser and will
immediately inform the Purchaser of any changes, errors or omissions.
20. EQUAL EMPLOYMENT OPPORTUNITY. To the extent applicable,
all parties agree that they will abide by the provisions 29 CFR Part 471
Appendix A to Subpart A. Additionally, 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 withdisabilities, and prohibit discrimination against all individuals based on
their race, color, religion, sex, or national origin. Moreover, theseregulations require that covered prime contractors and subcontractors
take affirmative action to employ and advance in employment individuals
without regard to race, color, religion, sex, national origin, protectedveteran status or disability.
21. UTILIZATION OF SMALL BUSINESS CONCERNS. It is the policyof the Purchaser to develop, maintain and carry-out procedures to permit small
business concerns, veteran-owned small business concerns, service-disabled
veteran-owned small business concerns, HUBZone small business concerns,
small disadvantaged business concerns and women-owned small businessconcerns to have a practicable opportunity to participate in performing
contracts led by any federal government agency and to ensure timely paymentof amounts due pursuant to its subcontracts with any of the foregoing as further
defined and set forth in the Federal Acquisition Regulations (“FAR”), clause
52.219-8. If this order relates to a federal government contract, Vendor
certifies by its acceptance of such order that it is undertaking a commitment tothe utilization of small business concerns in compliance with the FAR and allother laws, orders and regulations relating thereto and shall obligate all
subcontractors to comply with all such provisions.
22. CUMULATIVE RIGHTS AND REMEDIES. The rights and remedies
herein provided to Purchaser shall be cumulative, as to one another, and shallbe in addition to any other rights and remedies provided in law or equity.
23. WAIVERS. A waiver or any failure on Vendor’s part to carry out any
condition, term or part of this order shall not as a waiver with respect to any
recurrence of such failure or with respect to a failure to carry out any othercondition, term or part.
24. CAPTIONS. Captions used in this order are for convenience ofreference only and shall not be deemed a part of the order.
25. ENTIRE AGREEMENT: MODIFICATIONS. This order sets forth theentire agreement between the parties hereto with respect to the subject matterand supersedes all prior communications, representations or agreements,
whether oral or written. No agreements or understandings varying or extending
the provisions of this order and no consent or waiver relating hereto will bebinding on Purchasing Manager, Purchasing Agent or other duly authorized
representative of Purchaser.
26. APPLICABLE LAW. Vendor warrants and certifies that in theperformance of this order it will comply with all applicable local, state andfederal laws.

INFICON Inc.

Rev.: 05/28/14
Two Technology Place, East Syracuse, NY 13057-9714 USA
Tel: +315.434.1100 Fax: +315.437.3803
www.inficon.com E-mail: reachus@inficon.com