Terms and Conditions of Purchase Orders
The following Standard Purchase Order Terms and Conditions (“Terms”) only apply to transactions that do not have a written agreement, duly executed by both parties. If there is such an agreement, then those terms shall be the terms that govern the transaction and relationship of the parties.
In the absence of such a written agreement, duly executed by both parties, then these Terms provide you (“Seller”) with the guidelines and legal requirements of your purchase order (“Order”) with Erdos Miller, Inc. (“Buyer”) for the goods and/or services that are described on the face of the Order.
1. Acceptance and Terms and Conditions: Seller accepts this Order and any amendments by signing the acceptance copy of the Order and returning it to Buyer promptly. Even without such written acknowledgment, Seller's full or partial performance under this Order shall constitute acceptance of these Terms. By acceptance of this Order, Seller agrees to be bound by, and to comply with all these Terms, which include, without limitation, any supplements, addenda, specifications, and other documents referred to in this Order. These Terms apply to everything set forth on this Order and constitute Buyer's offer to Seller, which Buyer may revoke at any time and for any reason prior to Seller’s acceptance. Reference in this Order to any such offer to sell, quotation, or proposal will not constitute a modification of any of these Terms. Buyer hereby rejects any terms and conditions which are different from or in addition to these Terms, whether contained in any acknowledgment of this Order, or with delivery of any goods or services under this Order, or otherwise, and any such additional terms and conditions will not be binding on Buyer.
2. Breach: Time is of the essence of this Order. Buyer may by written notice of breach to Seller (a) terminate all or any part of this Order if Seller fails to perform, or so fails to make progress as to endanger performance of this Order in accordance with its terms, and does not cure such breach within a period of ten (10) days (or such longer period as Buyer may authorize in writing) after receipt of notice from Buyer specifying such failure; and (b) procure, on such terms as it will deem appropriate, goods or services similar to those so terminated. Seller will continue performance of this Order to the extent not terminated and will be liable to Buyer for any excess costs for such similar goods or services. As an alternate remedy, and in lieu of termination for default, Buyer, at its sole discretion, may elect to extend the delivery schedule and/or waive other deficiencies in Seller's performance, in which case an equitable reduction in the Order price will be negotiated. If Seller for any reason anticipates difficulty in complying with the required delivery date, or in meeting any of the other requirements of this Order, Seller will promptly notify Buyer in writing. The rights and remedies of Buyer provided in this Section 2 will not be exclusive and are in addition to any other rights and remedies provided by the Uniform Commercial Code, by law, at equity or under this Order.
3. Price: This Order must not be filled at a price higher than shown on the face of the Order. If no price is set forth on the front of the Order, the goods or services will be billed at the price last quoted or at the prevailing market price, whichever is lower, and, in any event, goods and services ordered under this Order will not be billed at a higher price than last quoted or charged without Buyer's specific written consent. Buyer will be entitled at all times to withhold, deduct, or set off any amount owed at any time by Seller or any of its affiliates to Buyer or any of its affiliates against any amount payable at any time by Buyer in connection with this Order. No extra charges of any kind will be allowed unless specifically agreed to in writing by the Buyer. All applicable taxes arising out of transactions contemplated by the Order will be borne by Seller except as otherwise specified by the parties in writing.
4. Invoices, Payment, and Taxes:
(a) Invoices shall contain the Purchase Order Number, item number, description of goods or services, quantities, unit prices, date(s) rendered and total purchase price. Each invoice must refer to one, and only one, purchase order.
(b) All claims for money due or to become due from Buyer shall be subject to withholding, deduction, or setoff by Buyer for any claims, damages, or arising out of this or any other of Seller’s obligations with Buyer.
5. Packaging: All goods must be packaged in the manner specified by Buyer and shipped in the manner and by the route and carrier designated by Buyer. If Buyer does not specify the manner in which the goods must be packaged, Seller shall package the goods with the duty of care so as to avoid any damage or loss in transit. If Buyer does not specify the manner of shipment, route, or carrier, Seller shall ship the goods at the lowest possible transportation rates, consistent with Seller's obligation to meet the delivery schedule set forth in this Order.
6. Inspection: All goods and services will be subject to inspection and testing by Buyer at all times and places, including the period of manufacture and in any event prior to final acceptance. Final acceptance or rejection of the goods or services will be made as promptly as practical after delivery, but failure to inspect and accept or reject goods or services or failure to detect defects by inspection, will neither relieve Seller from responsibility for such goods or services as are not in accordance with this Order nor impose liabilities on Buyer for them. Buyer's payment for the goods shall not constitute its acceptance of the goods. Goods rejected and goods supplied in excess of quantities ordered may be returned to the Seller at Seller’s expense. Payment, if any, made for any goods rejected hereunder shall be promptly refunded by Seller. Seller will maintain an inspection and process control system acceptable to Buyer covering the goods and services ordered. If any of the goods or services are found at any time to be defective in material or workmanship, or otherwise not in conformity with the requirements of this Order, including any applicable drawings and specifications, then Buyer, in addition to such other rights and remedies it may have by contract or by law or equity, at its sole discretion may reject and return such goods at Seller's expense, require Seller to inspect the goods and remove nonconforming goods and/or require Seller to replace nonconforming goods or services with conforming goods or services.
7. Warranties: Seller represents and warrants that (a) all goods and services are free of any claim of any nature by any third person and that Seller will convey clear title to Buyer, (b) all services are performed in a manner acceptable in the industry and in accordance with generally accepted standards, are free from all defects, are fit for the particular purposes for which they are acquired, and are provided in strict accordance with the specifications or other requirements (including performance specifications) approved or adopted by Buyer, (c) all goods sold will be of merchantable quality, free from all defects in design, workmanship and materials, and fit for the particular purposes for which they are purchased and that the goods and services are provided in strict accordance with the specifications, samples, drawings, designs or other requirements (including performance specifications) approved or adopted by Buyer, (d) the prices for the goods or services sold to Buyer under this Order are not less favorable than those currently extended to any other customer for the same or similar goods and/or services in equal or lesser quantities, and (e) Seller shall not act in any fashion or take any action that will render Buyer liable for a violation of any applicable laws. Buyer's inspection, test, acceptance, or use of the goods shall not affect Seller's obligations under these warranties. Seller shall replace, reperform or correct, at Buyer's option and at Seller's cost, defects of any goods or services not conforming to these warranties. If Seller fails to correct defects in, reperform or replace nonconforming goods or services within an agreed upon time after the Buyer notifies Seller of the defect or defects, Buyer may, at its sole discretion and after the agreed upon time has expired, revoke its acceptance of the goods in which event Seller shall be obligated to refund all payments made, including the purchase price, and make all necessary arrangements, at Seller's cost, for the return of the goods to Seller. All warranties of Seller herein or that are implied by law shall survive any inspection, delivery, acceptance, or payment by Buyer. Any attempt by Seller to limit, disclaim, or restrict these warranties or any remedies of Buyer, by acknowledgment or otherwise, in accepting or performing this Order, will be null, void, and ineffective without Buyer's written consent.
8. Indemnification: Seller shall indemnify and hold Buyer and its affiliates, representatives, directors, officers, employees, shareholders, agents and contractors harmless and, on Buyer’s request, shall defend each of them from and against any or all third party claims, demands, litigation, or proceedings of whatever kind, whether based upon negligence, breach of express or implied warranty, strict liability, infringement of intellectual property rights, or any other theory, and from and against all direct, indirect, special, exemplary, incidental or consequential damages of every kind whatsoever, arising out of, by reason of, or in any way connected with the goods and/or services, the design, manner of preparation, manufacture, construction, completion, or delivery or non-delivery of any goods and/or services by Seller, any breach by Seller of any of its obligations hereunder, or any other act, omission or negligence of Seller or any of Seller's employees, workers, servants, agents, subcontractors, or suppliers. Seller shall, on request, pay or reimburse Buyer or any other party entitled to indemnification hereunder for all costs and expenses, including attorneys' fees, as incurred by Buyer or such other party in connection with any such claim, demand, litigation, proceeding, loss, or damage. In addition, for infringement claims, Seller will, at its own expense and at Buyer’s option, either procure for Buyer the right to continue using the allegedly infringing item, replace it with a non-infringing equivalent, or remove it and refund the purchase price and the transportation and installation costs thereof.
9. Limitation of Liability: Buyer's total aggregate liability arising from or relating to this order is limited to the amount paid by Buyer for the goods and/or services. To the maximum extent allowable under applicable law, Buyer shall not be liable under this order for any special, incidental, consequential, indirect, or punitive damages including, without limitation, lost revenues even if Buyer has been advised of the possibility of such damages.
10. Buyer's Property: Tangible or intangible property of any nature furnished to Seller by Buyer or specifically paid for in whole or in part by Buyer, and any replacements or attachments, are the property of Buyer and, unless otherwise agreed in writing by Buyer, will be used by Seller solely to render services or provide goods to Buyer. Seller will not substitute any property or take any action inconsistent with Buyer's ownership of such property. While in Seller's custody or control such property will be held at Seller's risk, will be kept insured by Seller at its expense for its replacement cost with loss payable to Buyer, and will be subject to removal at Buyer's written request, in which event Seller will prepare such property for shipment and redelivery to Buyer in the same condition as originally received by Seller, reasonable wear and tear excepted, all at Seller's expense.
11. Changes: Seller shall not change the delivery schedule without the Buyer’s prior written consent. If any such changes cause an increase or decrease in the cost of or the time required for the performance of any work under this Order, an equitable adjustment will be made in the contract price or delivery schedule, or both, and this Order will be modified in writing accordingly. Any claim by the Seller for adjustment under this Section 11 must be in a detailed writing and delivered to Buyer within five (5) days after the date Seller receives notification of change. Any change will be authorized only by a duly executed amendment to this Order. Information, such as technical information or guidance provided to Seller by representatives of Buyer, will not be construed as a change within the meaning of this Section. If Seller considers that the conduct of any of Buyer's employees has constituted a change under this Order, Seller will immediately notify Buyer, in writing, as to the nature of the change and any proposed adjustment, which will then be subject to this Section 11. SUBSTITUTIONS OR CHANGES IN QUANTITIES, SPECIFICATIONS, TYPE OF SERVICES OR TYPE OF GOODS BY SELLER, INCLUDING BUT NOT LIMITED TO CHANGES IN PART OR OTHER NUMBERS, MAY NOT BE MADE WITHOUT BUYER’S PRIOR WRITTEN APPROVAL.
12. Compliance with Laws: Seller represents and warrants that it is in compliance with and all goods and/or services supplied hereunder have been produced or provided in compliance with the applicable provisions of all federal, state, or local laws or ordinances and all related lawful orders, rules and regulations. Seller shall comply with any provisions, representations, or agreements, or contractual clauses required to be included or incorporated by reference or operation of law in any Order. Seller shall be required to obtain and pay for any license, permit, inspection or listing by any public body or certification organization required in connection with the manufacture, performance, completion or delivery of any good and/or service.
13. Confidential or Proprietary Information: Notwithstanding any document marking to the contrary, any knowledge or information that the Seller has disclosed or may later disclose to Buyer, and which in any way relates to the goods or services covered by this Order will not, unless otherwise specifically agreed to in writing by Buyer, be deemed to be confidential or proprietary information, and will be acquired by Buyer, free from any restrictions. Seller will keep confidential any technical, process, economic, or other information derived from drawings, specifications and other data furnished by Buyer in connection with this Order (in whatever form or format) and will not divulge, export, or use, directly or indirectly, such information for the benefit of any other party without obtaining Buyer's prior written consent. Except as required for the efficient performance of this Order, Seller will not use such information or make copies or permit copies to be made of such drawings, specifications, or other data without the prior written consent of Buyer. If any reproduction is made with prior consent, this notice will be provided. Upon completion or termination of this Order, Seller will promptly return to Buyer all materials incorporating any such information and any copies, except for one record copy. Seller agrees that no acknowledgment or other information concerning this Order and the goods or services provided will be made public by Seller without the prior written consent of Buyer. Seller will not disclose the existence of this Order or any of its respective terms to any third party without Buyer's prior written consent.
14. Work on Buyer's Premises: If Seller's work under this Order requires Seller to be on the premises of Buyer or at Buyer’s direction, Seller will take all necessary precautions to prevent any injury to persons or damage to property, including following any rules, procedures, policies or other requirements of Buyer. Seller shall indemnify, defend and hold Buyer and its affiliates, representatives, directors, officers, employees, shareholders, agents and contractors harmless from any and all liabilities, loss, costs, or damages arising from Seller’s breach of this provision.
15. Insurance: At Buyer's request, Seller will furnish to Buyer a Certificate of Insurance completed by its insurance carrier(s) certifying that the required insurance coverage is in effect, with waiver of subrogation, naming Buyer as an additional insured, and containing a covenant that such coverage and will not be canceled or materially changed until ten (10) days after prior written notice has been delivered to the Buyer. All such insurance policies shall be of a form and content satisfactory to Buyer. All insurance policies shall be with companies licensed to do business in the State of Texas, with financial ratings not lower than VII in Best’s Insurance Guide.
16. Termination: An Order shall terminate automatically, without notice, if Seller becomes insolvent or the subject of any proceeding under the laws relating to bankruptcy or the relief of debtors.
17. Government Contracts: If this Order bears a government contract number on the face of this Order, Seller shall comply with all pertinent provisions of said government contract and pertinent executive orders and directives to the extent that they apply to the subject matter of this Order and all such pertinent contract provisions, orders and directives are hereby incorporated by reference into this Order. A copy of the government contract's pertinent terms and conditions will be given to Seller on request.
18. Independent Contractor. Seller is an independent contractor with respect to the goods or services supplied hereunder and neither Seller nor anyone engaged or employed by Seller shall be deemed for any purpose to be the agent or employee of Buyer in the supply of such goods or services. Buyer shall have no direction or control of Seller or its employees; Buyer being solely interested in the results to be obtained.
19. General Workmanship Standards for Vendors: This procedure is intended to provide general information regarding workmanship standards and is to be used to establish minimum quality requirements by which product should be built, inspected, or tested.
a) Terms and Definitions:
a1) WS = Workmanship Standards
a2) IPA = Isopropyl Alcohol
b1) General Workmanship Requirement
b1.1) Perform a visual inspection to verify part identification is in accordance with the applicable engineering drawing and/or purchase order requirement
b1.2) Perform a visual inspection to verify that there are no signs of damage to the exterior/interior of the part
b1.3) Where there is any uncertainty, vendor is to contact Erdos Miller engineering or purchasing department for clarification
b2) Mechanical Components Requirement
b2.1) Clean parts to ensure that there is no debris or foreign substances present on surfaces, threads, etc.
b3) Soldered Components Requirement
b3.1) Vendor to ensure that any flux used is properly cleaned with flux remover, then with IPA, then with deionized water
b3.1.1) Vendor to contact Erdos Miller if materials are unavailable
b3.2) All solder used should be lead-free
c1) All material supplied by vendor should be accompanied with a signed Certificate of Compliance, indicating that the goods or services meet the required standards of the purchase order
(a) Non-assignment: Seller shall not assign or transfer this Order or any interest in it or any payment due or to become due under it without the prior written consent of the Buyer. Any such assignment by Seller will be void. An assignment will be deemed to include not only a transfer of this Order or such interest or payment to another party but also a change in control of Seller, whether by transfer of stock or assets, merger, consolidation, or otherwise.
(b) Transportation: All the prices are established as F.O.B. Seller and/or Origin Dock, Freight Prepaid, unless otherwise specifically provided on the front of this Order. Title and risk of loss shall not pass to Buyer until delivery of the goods to the location designated on the face of this Order and acceptance by Buyer. If Buyer rightfully rejects the goods, receives a non-conforming tender, or revokes its acceptance, risk of loss and title shall be deemed to have remained with Seller. The responsibility for freight damaged merchandise will be assumed by Seller. No charges for unauthorized transportation will be allowed. Any unauthorized shipment, which will result in excess transportation charges, must be fully prepaid by the Seller. Seller will not declare any value on such materials shipped via United Parcel Service, Rail Express, Air Express, Air Freight or Parcel Post. Seller will release rail or truck shipments at the lowest released valuation permitted in the governing tariff or classification.
(c) Anticipation of delivery schedule: Unless otherwise agreed in writing, Seller will not make material commitments or production arrangements in excess of the amount or in advance of the time necessary to meet Buyer's delivery schedule. Goods shipped to Buyer in advance of schedule may be returned to Seller at Seller's expense.
(d) Seller's inventory: Buyer will have no obligation to request quotations or place Orders with Seller, both of which will be in Buyer's sole discretion. Buyer acting in its sole discretion will determine the actual quantity of goods or services to be purchased. The quantity of goods or services, if any, specified in forecasts supplied by Buyer from time to time, or otherwise, is an estimate only. Seller bears sole responsibility for managing Seller's raw material, work in process, and inventory, and Buyer will have no liability with respect thereto (whether upon termination of this Order or otherwise) other than in connection with termination as provided in Section 16.
(e) Force majeure: Buyer may delay delivery and/or acceptance occasioned by causes beyond its control.
(f) Remedies: Each of the rights and remedies reserved to Buyer in this Order shall be cumulative and additional to any other remedies provided in law or equity. No delay or failure by Buyer in the exercise of any right or remedy shall affect any such right or remedy and no action taken or omitted by Buyer shall be deemed to be a waiver of any such right or remedy.
(g) Publicity: Seller will not use Buyer's name or logo in publicity, advertising, or similar activity, except with Buyer's prior written consent.
(h) Documentation: It is agreed that all technical documentation and other literature necessary for the proper use of the goods or services will be provided to Buyer with the goods or services, unless otherwise directed by Buyer, and its cost is included in the price.
(i) Governing law: This Order, these Terms, and all related transactions, will be interpreted under and governed by the laws of the State of Texas without regard to its conflict of law principles.
(j) Dispute resolution: Disputes arising under this Agreement will be resolved by the parties through good faith negotiations in the ordinary course of business. The amount and responsibility for payment of arbitration costs will be one of the issues decided by the arbitrator, whose decision will be in accordance with the terms and conditions of this Agreement. No damages excluded by or in excess of the damage limitations set forth in this Agreement shall be awarded. During any such arbitration, the parties will continue diligent performance of this Agreement. The arbitrator will render a written decision stating reasons therefore in reasonable detail within ninety (90) days after the respondent receives the Commencement Letter. The provisions of this section, and any award issued by an arbitrator, may be enforced by either party in any court of competent jurisdiction. Arbitration is the exclusive remedy for disputes arising under this Agreement; the parties hereby waive their rights to bring a lawsuit to resolve a dispute arising under this Agreement.
(k) Survival: Seller’s obligations under Sections 6, 7, 8, 9, 10, 12, 13, and 19 (f), (i), (j), (k), (l), (n), and (p) will survive any termination of this Order.
(l) Waiver; modification: No claim or right arising out of a breach of this Order can be discharged in whole or in part by a waiver or renunciation of the claim or right unless supported by consideration and in a writing signed by the aggrieved party. The failure of Buyer to enforce at any time or for any period of time any of the provisions hereof will not be construed to be a waiver of such provisions or of the right of Buyer thereafter to enforce each and every such provision.
(m) Notices: All notices, consents, waivers, and other communications required or permitted to be given pursuant to this Order, shall be in writing and shall be deemed to have been delivered either (i) on the delivery date, if personally delivered, or if delivered by confirmed facsimile or e-mail, (ii) one (1) business day after delivery to any national overnight courier directing delivery on the next business day, receipt requested, or (iii) three (3) business days after deposit in the United States mail, registered or certified mail, return receipt requested, with adequate postage affixed thereto. All notices to Buyer shall be sent to Erdos Miller, Inc. at 15120 Northwest Fwy STE 100, Houston, TX 77040, and to Seller at its address as set forth in this Order, or at such other address as either party may designate in writing to the other party.
(n) Severability: If any provision of this Order shall be held or deemed to be or shall, in fact, be illegal, inoperative or unenforceable, this provision shall not affect any other provision or provisions contained in this Order.
(o) Paragraph titles: The paragraph titles are solely for convenience of reference and shall not affect the meaning or construction of any provision of this Order.
(p) Entire agreement: Provided that there is no written agreement, duly executed by both parties, applying to the transaction, this Order, with such documents as are expressly incorporated by reference, is intended by the parties as a final expression of their agreement with respect to such terms as are included in it, and is intended also as a complete and exclusive statement of the terms of their agreement. No course of prior dealings between the parties and no usage of the trade will be relevant to determine the meaning of this agreement even though the accepting or acquiescing party has knowledge of the nature of the performance and opportunity for objection.