TERMS AND CONDITIONS OF PURCHASE
In the terms and conditions below, Quartus Engineering Incorporated shall be referred to as "Quartus" or “Buyer”, the company supplying goods or services under this purchase order (the "Purchase Order") shall be referred to as the "Seller," and the goods and services described in and provided pursuant to this Purchase Order are referred to as "Goods" or "Services," as the case may be. If a formal written agreement exists between Quartus and the Seller for the purchase of such Goods and Services, then the terms of such written agreement shall supersede any contrary terms contained in this Purchase Order.
1. ACKNOWLEDGEMENT AND ACCEPTANCE
Acceptance of this Purchase Order by Seller constitutes acceptance of all of the terms and conditions stated herein. To the extent that any quotation, order acceptance, confirmation, invoice or other document of Seller contains conflicting, differing or additional terms from these terms and conditions, these terms and conditions will control and all such conflicting, differing or additional terms are rejected by Quartus and shall have no effect unless expressly agreed to in writing by Quartus. Seller's signed acknowledgement of the Purchase Order, or Seller's shipment of, or acceptance of payment for, Products or Services shall conclusively affirm Seller's assent to these terms and conditions. If this Purchase Order is not signed and returned to Quartus, either by mail or fax, within ten (10) days from the date hereof, Quartus, at its option, may cancel this Purchase Order.
2. FOB; DAMAGE DURING DELIVERY
Delivery of Goods under this Purchase Order shall be by FOB: Quartus, San Diego, California, and, unless otherwise agreed and / or stated in this Purchase Order, the risk of loss or damage shall remain with the Seller until actual delivery to Quartus. Seller shall be responsible for damages sustained during delivery. Any resulting claims against carriers shall be the responsibility of the Seller. Replacement of any damaged Goods shall be the sole responsibility of Seller.
3. TERMS
Terms of payment shall be as outlined in this Purchase Order. All invoices for payment shall include the Purchase Order number, and shall include a summary of the total Purchase Order value, total value of Goods provided or Services performed to date of the invoice, total value of invoicing to date and value of the current invoice. Invoices for payment not including such information will be returned to the Seller without payment.
4. PACKAGING
All packages, cases, crates, etc., are to be marked with the Seller’s name and the applicable Quartus Purchase Order number. A packing list must accompany each shipment of Goods. Quartus shall not be liable for any packaging charges, unless otherwise agreed to in advance.
5. DELIVERY
The delivery and performance requirements and specified dates of this Purchase Order shall be strictly adhered to and shall not be changed or modified without the prior written acceptance of Quartus. In the event of failure to deliver or perform by the dates specified in a Purchase Order, Quartus reserves the right to cancel such Purchase Order in total or any unexecuted part of such Purchase Order. Goods not shipped in time to meet the delivery requirements and dates under a Purchase Order, at Quartus's option, shall be delivered at the fastest means available, at the sole expense of the Seller.
6. CHANGES
Except as otherwise provided herein, this Purchase Order may not be amended, modified, supplemented, cancelled or discharged, except in writing signed by Quartus and Seller.
7. DELAY IN SUPPLY
In the event of failure by the Seller to deliver any Goods or perform any Services contained in this Purchase Order, other than as a result of Acts of God, force majeure, civil commotions, fire, war, perils of the sea, delay in transit and other causes beyond the Seller's control, Quartus shall have the right to cancel all or any remaining part of this Purchase Order, without payment of compensation, and obtain delivery or performance from other sources. Any and all increased costs and expenses thereby incurred by Quartus in obtaining such delivery or performance shall be set off against any moneys due or to become due to the Seller or shall be recoverable as damages hereunder.
8. INDEMNITY
Seller shall indemnify, defend and hold Quartus harmless from any claim, cause of action, or liability incurred by Quartus arising from third party claims for personal injury, death, or damage to tangible property. Seller may not settle any indemnified claim without the written consent of Quartus. This indemnification shall survive delivery of the Products or Services to Quartus and any subsequent sale or other transfer of the Products or Services to a third party.
9. LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO: LOST PROFITS, ANTICIPATED OR LOST REVENUE, LOSS OF PRODUCT, LOSS OF USE OF ANY SYSTEMS, NETWORKS, RENTAL EXPENSES, INCOME, FINANCING, BUSINESS AND REPUTATION, OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS OR ANY THIRD PARTY CLAIM), WHETHER ARISING IN NEGLIGENCE, TORT, STATUTE, EQUITY OR COMMON LAW, OR ANY OTHER CAUSE OF ACTION OR LEGAL THEORY EVEN IF THE PARTY HAS BEEN ADVISED OF THOSE POSSIBILITY OF THOSE DAMAGES.
10. QUALITY REQUIREMENTS
The Seller shall provide and maintain an inspection system acceptable to Quartus covering the inspection of Goods provided under this Purchase Order, and Seller shall tender to Quartus for acceptance only such Goods that have been inspected in accordance with such inspection system and that have been determined by the Seller to conform with the Purchase Order requirements. However, all Goods provided under this Purchase Order are subject to final inspection and acceptance within a reasonable time after actual delivery and Quartus shall have the right to reject any defective or non-conforming Goods despite any prior inspection by the Seller.
11. RETURN OF DEFECTIVE GOODS
All Goods supplied under this Purchase Order that do not meet with the approval of Quartus's Quality Assurance Department, that are shipped contrary to Purchase Order instructions or that are in excess of the quantity or quantities ordered under this Purchase Order, will be returned to Seller or held pending a mutual agreement between Quartus and Seller regarding their disposition, subject to the Seller's risk of loss and sole expense.
12. TOOLING AND MATERIALS
Unless otherwise agreed to by Quartus, all special purpose tooling or materials used by Seller to fulfill this Purchase Order shall be the property of Quartus, shall be removable at any time without additional cost upon demand by Quartus, shall be used only in filling orders from Quartus, shall be kept separate from other tools and materials, and shall be clearly identified as the property of Quartus.
13. PURCHASE ORDER
Purchase orders sent via fax serves as an official intent of purchase by Quartus. Only authorized personnel of Quartus will be able to issue purchase orders.
14. BANKRUPTCY
In the event of any proceedings, voluntary or involuntary, in bankruptcy by or against Seller, the inability of Seller to meet its debts as they become due, or in the event of the appointment, with or without Seller's consent, of an assignee for the benefit of creditors or of a receiver, then Quartus shall be entitled, at its sole option, to cancel any unfilled part of this Purchase Order without any liability whatsoever.
15. CHEMICALS & HAZARDOUS SUBSTANCES
A Material Safety Data Sheet (MSDS), as prescribed by Quartus ("Data Sheet"), addressed to the attention of the Quartus Quality Assurance Department, shall accompany all chemicals & hazardous substances provided under a Purchase Order. The Sellers shall maintain a catalog of any and all applicable Data Sheets that are provided in connection with the Seller's performance of work under a Quartus Purchase Order.
16. GOVERNMENT REGULATIONS
Seller is on notice that Quartus may utilize Goods or Services purchased under this Purchase Order in the transaction of business with the United States Government. The Seller, therefore, represents and warrants that in the performance of this order he has complied with all applicable State and Federal laws, including all the applicable provisions of the Fair Labor Standards Act of 1938, as amended. The Affirmative action clauses prescribed in Sections 60-250.4 (Vietnam Era Veterans) and 60-741.4 (Handicapped Persons) of the Rules and Regulations of the U.S. Secretary of Labor are incorporated herein by this reference. The equal opportunity clause and the regulations contained in Section 60.1 of the Rules and Regulations of the U.S. Secretary of Labor are incorporated herein by this reference. Upon request, the Seller shall supply Quartus with copies of compliance reports and any other information necessary to demonstrate compliance therewith.
17. WARRANTY, SPECIFICATIONS
The seller expressly warrants that any merchandise delivered pursuant to this order will conform to the specifications, drawings, samples or other description furnished or specified by the Buyer and will be free from defects in material and workmanship and shall be merchantable and fit for its intended use. Such warranty shall survive delivery and inspection, and shall not be deemed waived either by reason of Buyers acceptance of such merchandise or by payment for it. Any deviations from this order of specifications furnished hereunder, or any other exceptions or alterations must be approved in writing by the Buyer. Warranty period shall be a minimum of one year from the date the material is accepted by Quartus. Seller expressly warrants that all material covered by this order which is the product of Seller, or is in accordance with Seller's specifications, will be fit and sufficient for the purposes intended. This warranty shall survive delivery and run to Buyer's successors, assigns, customers and users of Buyer's finished product. This warranty shall not be deemed waived by reason of Buyer's inspection, acceptance or payment of said materials and work. Seller shall also relieve and hold Buyer harmless from liability for any loss, injury, claim and expense, including attorney's fees, which result from materials or work provided by it in connection with this purchase order. All warranties set forth herein shall be in addition to any statutory or implied warranty provided for by the Uniform Commercial Code.
18. ASSIGNMENT
Seller shall not delegate any duties, nor assign any rights or claims under this Purchase Order, or for the breach hereof, without the prior written consent of Quartus, and any such attempted delegation or assignment shall be void.
19. SET-OFF AND COUNTERCLAIMS
All claims for moneys due or to become due from Quartus shall be subject to deduction by Quartus for any setoff or counterclaim arising out of this or any other of Quartus's purchase orders with Seller.
20. CALIFORNIA LAW
This Purchase Order and the acceptance of it shall be a contract made in the State of California and governed by the laws thereof, without giving effect to conflicts of law principles, and excluding the application of the United Nations Convention on Contracts for the International Sale of Goods.
21. INTELLECTUAL PROPERTY INFRINGEMENT
With respect to the Goods or Services provided under this Purchase Agreement, Seller shall defend, indemnify and hold harmless Quartus, its directors, officers, employees, agents and affiliates for and against any and all liabilities, claims, damages, expenses and costs (including legal fees and expenses) arising from or related in any way to a violation or infringement of any patent, copyright, trademark, trade dress, and trade secret, or any other contractual right, proprietary right or intellectual property right, of any third party.
22. ADVERTISING, ANNOUNCEMENTS, AND NEWS RELEASES
Seller shall not, at any time without first obtaining written consent of Quartus, in any manner advertise or publish or issue any news releases or make any public announcements or denial or confirmation of same concerning the fact that Seller has furnished or contracted to furnish to Quartus the articles herein mentioned or concerning work done by Seller hereunder. If Seller fails to observe this provision, Quartus shall have the right to cancel and/or terminate the order without obligation and to make payments for completed articles delivered prior to cancellation or termination.
23. CANCELLATION FOR QUARTUS CONVENIENCE
In addition to any other rights that Quartus may have, Quartus reserves the right to cancel this order or any part of it and Quartus's sole responsibility to Seller shall be to pay for any such services expended and/or reports as have been delivered as of the time such cancellation is effective, and to reimburse to Seller its actual costs of materials and direct labor expended by it (at the standard billing rate) in reasonable anticipation of its fulfillment of this order which are not recoverable by Seller, provided that no allowance shall be made to Seller for any anticipated effort not already expended. In no event shall the amount paid by Quartus to Seller exceed the total amount of Purchase Order.
24. CANCELLATION FOR CAUSE
Quartus may terminate this contract, or any part hereof, for cause in the event of any default by the Seller, or if the Seller fails to comply with any contract terms and conditions, or fails to provide Quartus, upon request, with adequate assurances of future performance. In the event of termination for cause, Quartus shall not be liable to the Seller for any amount for supplies or services not accepted, and the Seller shall be liable to Quartus for any and all rights and remedies provided by law.
24. CANCELLATION FOR CAUSE
Quartus may terminate this contract, or any part hereof, for cause in the event of any default by the Seller, or if the Seller fails to comply with any contract terms and conditions, or fails to provide Quartus, upon request, with adequate assurances of future performance. In the event of termination for cause, Quartus shall not be liable to the Seller for any amount for supplies or services not accepted, and the Seller shall be liable to Quartus for any and all rights and remedies provided by law.
25. RIGHT OF ACCESS
Seller shall allow the right of access to Quartus, Quartus's representative or any of Quartus’s customers or customer's representative to verify at the Seller's and or sub tier supplier's premises that subcontracted product conforms to specified requirements.
26. REMEDIES
The remedies reserved in this purchase order shall be cumulative and in addition to any other or further remedies provided in law or equity. No waiver of a breach of any provision of this purchase order shall be effective unless the waiver is supported by consideration and given in writing, and in no event shall such waiver discharge any claim or right arising out of any other breach of the terms and conditions of this purchase order.
27. WORK ON BUYER'S OR CUSTOMER'S PREMISES
If Seller's work under this order involves operations by the Seller on the premises of Buyer or one of its customers, Seller shall take all necessary precautions to prevent the occurrence of any injury to person or property during the progress of such work. Except to the extent of any such injury is due solely or directly to Buyer's or its customer's negligence, as the case may be. Seller shall indemnify Buyer against all loss, which may result in any way from any act or omission of the Seller, its agents, employees or subcontractors. Seller shall maintain such Public Liability Property Damage and Employee's Liability and Compensation Insurance, or show evidence of such financial responsibility, as will protect Buyer from said risks and from any claims under any applicable Workmen's Compensation and Occupational Disease Acts.
28. CONFIDENTIAL OR PROPRIETARY INFORMATION AND PROPERTY
Seller shall keep confidential and otherwise protect from disclosure all information and property obtained from Quartus in connection with this Purchase Order and identified as confidential or proprietary. Unless otherwise expressly authorized herein or by Quartus, Seller shall use such information and property, and the features thereof, only in the performance and for the purpose of this Purchase Order. Upon Quartus request, and in any event upon the completion, termination or cancellation of this Purchase Order, Seller shall return all such information and property to Quartus or make such other disposition thereof as directed by Quartus. Seller shall not sell or dispose of as scrap otherwise any completed or partially completed or defective proprietary property before receiving written authorization from Quartus and before rendering such property unsuitable for use. In all subcontracts and Purchase Orders issued by Seller for performance of work related to this Purchase Order, Seller shall provide to Quartus the same rights and protection as contained in this clause.
29. INSURANCE
Supplier will obtain and maintain, at its expense, Commercial General Liability Insurance that is primary to any carried by Purchaser, covering liabilities relating to Goods, including but not limited to products and completed operations, and that meets the following requirements: (a) contains a broad form Supplier's Endorsement; (b) has limits of $1,000,000 per occurrence and $2,000,000 general aggregate combined single limit for bodily injury and property damage (unless a different limit is Specified); (c) is issued by a reputable and financially sound carrier; (d) names Quartus Engineering Incorporated and its affiliates as additional insured's; and (e) is endorsed to provide that it will not be terminated, cancelled, materially altered or allowed to expire without 30 days prior written notice to Purchaser. Supplier will keep this insurance in effect for at least five years after the last sale of Goods to Purchaser, and will furnish Purchaser certificates of insurance evidencing such coverage promptly upon Purchaser's request. Further, if Supplier's employees will enter Purchaser's premises, Supplier will maintain Workers'; Compensation insurance in the statutory mandated amounts and Employer's Liability insurance with limits of liability of not less than $1,000,000 aggregate, with a waiver of subrogation in favor of "Quartus Engineering Incorporated and its affiliates" (where permitted by law), in all states where Supplier will enter Purchaser's premises. Purchaser's approval of any of Supplier's insurance does not relieve Supplier of any obligations in this Purchase Order, including but not limited to its defense and indemnity, even for claims over Supplier's policy limits.