Terms and Conditions

tec5USA, INC.

TERMS AND CONDITIONS OF PURCHASE

1. ACCEPTANCE: Acceptance by the persons to whom this Order is addressed (“Vendor”) must be in exact compliance with the terms specified herein. This Order shall be effective only: (i) upon receipt by tec5USA of the acknowledgment portion of this Order Form signed by Vendor; (ii) upon commencement of performance by Vendor pursuant to this Order; or (iii) by written acknowledgement sent by the Vendor to tec5USA confirming that the order has been received and accepted (“Vendor Order Confirmation”). If there is any inconsistency in a current Master Purchasing Agreement between the parties and this agreement, the Master Purchasing Agreement controls the conditions. Any terms and conditions stated by the Vendor in acknowledging receipt of this Order which attempts to modify, contradict, or add to its provisions shall be void unless expressly agreed to in writing by tec5USA.

2. PACKING AND TRANSPORTATION: Unless otherwise specified, all shipments will be packed to prevent damage in transit, assure lowest transportation cost for the particular deliverables and meet carriers’ tariff requirements. Vendor shall mark all packages with necessary lifting, handling and shipping information. An itemized Pick List or Packaging Sheet must accompany each shipment and shall reference tec5USA’s purchase order number. No charge to tec5USA shall be made for boxing, crating, or storage without tec5USA’s prior written authorization.

3. SHIPPING / DELIVERY / RISK OF LOSS: Delivery schedules provided in connection with this Order shall be binding upon Vendor. Time shall be of the essence with respect to any delivery or work schedule hereunder. If, without authorization from tec5USA, Vendor ships goods so as to arrive more than five (5) days in advance of schedule, then tec5USA may either return the goods or store them at Vendor’s expense and risk. In this event, receipt of goods shall not be considered acceptance by tec5USA.
A. Any anticipated or actual delays in shipments shall be reported immediately to tec5USA. Upon receiving such a report, tec5USA may at its sole discretion either approve a revised schedule or, by written notice, terminate this Order in whole or in part without further liability to Vendor except for goods or service accepted prior to the date on which notice of termination is given to Vendor.
B. Vendor shall be liable for any damages resulting to tec5USA as a result of any revision in schedule or termination, except as specifically provided for herein, unless the delay is due to causes beyond Vendor’s control and without its fault or negligence.
C. If a delay is deemed excusable by tec5USA under Paragraph B above, any termination of this Order, in whole or in part, by tec5USA shall be in accordance with Section 5 below entitled “CHANGES”.
D. It is the Vendor’s responsibility to furnish the exact quantities called for on this Order, and no variation will be accepted as compliance, unless authorized in advance and in writing by tec5USA. tec5USA may return excess shipments (or make other dispositions at Vendor’s direction) at Vendor’s expense.
E. If the parties hereto agree that any shipment is “F.O.B. tec5USA,” then Vendor shall retain title to the goods, pay shipping costs and bear the risk of loss or damage until delivery is made to and accepted by tec5USA at the place designated on this Order.
F. If the parties hereto agree that any shipment is to be “F.O.B. Vendor’s Plant,” then Vendor shall bear the cost of delivery of goods to a carrier of the type specified by tec5USA. Title to the goods shall pass upon their delivery to the carrier and receipt of the necessary documentation by tec5USA. tec5USA shall pay all shipping costs and bear the risk of loss or damage to the goods in transit. Notwithstanding the foregoing, Vendor shall be liable for any loss or damage discovered after transfer of title which is determined by tec5USA to be a result of faulty packaging or handling by Vendor.

4. INSPECTION / TESTING / REJECTIONS: Acceptance by tec5USA of the items supplied under this Order shall occur upon final inspection and testing by tec5USA notwithstanding any payment or other prior inspections or design approvals issued by tec5USA. If any of the goods or services provided hereunder are found to be defective in material or workmanship, or otherwise do not conform with the requirements of this Order, at any time within one (1) year after delivery, tec5USA shall have the right to: (i) reject and return such goods or services at Vendor’s expense (which shall include tec5USA’s handing charges) or (ii) require that such defects be corrected or such goods be replaced promptly with satisfactory goods, materials or workmanship. Any adjustments shall include an equitable reduction in the price of this Order for rejected items. Vendor shall bear all risk of loss or damage in connection with rejected goods or services after receiving notice of rejection from tec5USA. If tec5USA rejects goods or if Vendor, when required by tec5USA, fails to proceed promptly with the replacement or correction thereof, tec5USA may either terminate this Order for default or may replace or correct such goods, using other sources and, in either event, may charge Vendor the cost of damage occasioned thereby.
Vendor shall not resubmit rejected items to tec5USA without prior written approval by and instructions from tec5USA. Vendor shall identify resubmitted items as previously rejected. tec5USA may witness final tests and inspect quality assurance records at Vendor’s plant prior to delivery of units and items purchased under this Order. Inspection by tec5USA shall not relieve Vendor from responsibility for quality control, specification conformance, and inspection. Nothing in this Section 4 shall limit any of tec5USA’s rights under any warranty or otherwise available at law or in equity.

5. CHANGES:
A. tec5USA may at any time, by written order, make changes to the general scope of this Order, as follows:
(i) the drawings, designs, or specifications for goods which are to be specially manufactured in accordance herewith;
(ii) the method of shipment or packing; and/or
(iii) the place of delivery, inspection, and acceptance.
B. tec5USA may change its schedule of delivery dates and the qualities of items specified therein, including the cancellation of the items, at any time. The price and payment schedule shall be automatically modified proportionately to reflect such changes.
C. tec5USA’s technical personnel may exchange technical information with Vendor’s technical personnel concerning goods to be furnished hereunder, pay shipping cost and bear the risk of the loss or damage until delivery is made to tec5USA at the place designated on this Order. tec5USA shall not be bound by any change or adjustments by Vendor unless authorized by tec5USA as provided for herein. Subject to the qualifications of paragraph 5.B. above, if any such change causes an increase or decrease of: (i) in costs; (ii) the time required to perform hereunder; or (iii) otherwise affects any other provision of this Order, an equitable adjustment of price, delivery schedules, and/or modification of such other provisions of this Order as may be so affected shall be negotiated and, in each such case, adjustment shall be accomplished by a written amendment of this Order signed by tec5USA.

6. UNAUTHORIZED CHANGES IN APPROVED DESIGNS, PARTS OR PROCESSES: Vendor specifically agrees that it shall make no changes in any design, configurations, material, part or manufacturing process which is applicable to this order and has been approved by tec5USA without the prior written notification to and written approval by tec5USA. Vendor’s failure to comply with this obligation shall be construed as a material breach of contract.

7. COMPLIANCE WITH LAWS: Vendor represents that the goods to be furnished hereunder were or will be produced in compliance with all applicable federal, state, and local laws, rules, codes, and regulations.

8. TAXES: Except as may be otherwise provided in this Order, the price includes all applicable federal, state, or local taxes and duties.

9. DEFAULT: Vendor shall be in default in its performance of this Order for any act or omission constituting breach of contract or violation of law, including but not limited to: (a) Vendor’s failure to deliver the goods in compliance with the delivery schedules; (b) Vendor’s failure to comply within ten (10) days of having received written notice from tec5USA of any provision of this agreement; (c) Vendor’s failure to make progress so as to endanger performance; or (d) Vendor’s breach of the warranties set forth in Section 10 below. Written notice of default will be given by tec5USA to Vendor if Vendor is in default, and tec5USA may terminate this Order or any part thereof invoking all rights and remedies provided by law or in equity, including but not limited to the procurement of similar goods from other suppliers on such terms and conditions as tec5USA determines to be appropriate. tec5USA may charge Vendor for any excess costs thereby incurred, in addition to any other damages it suffers as a result Vendor’s default.

10. WARRANTIES:
A. Vendor’s acceptance of the Order constitutes its affirmation that goods to be delivered hereunder are warranted against defects in materials or workmanship for a period of one (1) year, commencing with the transfer of ownership of the products, and will conform with the specifications, model, or other description/specifications contained in this Order. These warranties shall extend to the future performance of the goods provided pursuant to this Order. Such warranties, together with Vendor’s service warranties and guarantees, if any, shall survive inspection, testing, acceptance, and payment for the items provided hereunder and shall run to tec5USA, its successors, assigns, and customers.
B. Except for latent defects and defects which may not be reasonably discovered until the later performance of the goods sold under this Order, notice of any defect or nonconformity shall be given by tec5USA to the Vendor within one (1) year after acceptance. Notice of an excepted defect shall be given promptly upon its discovery. tec5USA may, at its option, return for credit or require prompt correction or replacement of the defective or nonconforming items at Vendor’s expense including, but not limited to, shipping and handling expenses. However, Vendor shall not replace or correct defective items except under tec5USA’s written authorization. Items required to be corrected or replaced shall be subject to the applicable provisions of Section 4 hereof in the same manner and to the same extent as an item rejected after initial inspection and testing.

11. CONFIDENTIAL INFORMATION:
A. “Confidential Information” shall mean all documents and all information provided by tec5USA and/or its affiliates to Vendor and other information designated as confidential if such documents contain trade secrets, proprietary business information, competitively sensitive information, or other information the disclosure of which would, in tec5USA’s good-faith judgment, be detrimental to its business or the business of any of its affiliates, customers, clients or end-users.
B. Goods made in accordance with tec5USA’s specifications, drawings, or samples, shall not be furnished or quoted for any other person or firm nor shall they be copied, sold, offered, or advertised for sale by Vendor without the written consent of tec5USA. All specifications, drawings, technical, data, tools, jigs, dyes, fixtures, materials and other items either furnished by tec5USA or the cost of which is charged to tec5USA shall be deemed the property of and returned to tec5USA without additional cost immediately upon request. Vendor agrees to protect all materials subject to such confidences against unauthorized disclosure, to mark all such items with the legend ” Property of tec5USA”, and to use such items only in filling orders from tec5USA. Vendor shall be liable for any loss or damage to any item covered by this Section.
C. Any knowledge, data or information that Vendor has disclosed or shall hereafter disclose to tec5USA in connection with the goods or services covered by this Order shall not, unless otherwise specifically agreed upon in writing by tec5USA, be deemed to be confidential or proprietary information and shall be acquired free from any restrictions (other than a claim or patent infringement) as a part of the consideration for this Order.
D. Vendor shall not, without first obtaining tec5USA’s written consent, in any manner disclose Confidential Information or advertise or publish that the goods ordered hereunder have been contracted for or furnished to tec5USA. Details of this Order shall not be disclosed to any third party, nor shall goods made pursuant to tec5USA’ designs or specifications be supplied to any third party without tec5USA’s prior written consent.

12. INDEMNIFICATION: Vendor shall, to fullest extent permitted by law, indemnify and hold tec5USA, its officers, directors, employees and customers harmless from any claim, loss, cost, damage, expense (including reasonable attorney’s fees) or liability of any nature or kind whatsoever arising out of or resulting from Vendor’s performance, act, or omission, in whole or in part, which might arise in connection with this agreement or Order and from any claims, suits or liabilities that might arise as a result of transporting, handling, depositing, staging and/or storing of goods provided by Vendor.

13. PATENT INDEMNITY:
A. tec5USA, to the fullest extent permitted by law, shall hold Vendor harmless against any claim, expense, or loss resulting from infringement of any patent or trademark caused by Vendor’s compliance with tec5USA designs, specifications or instructions.
B. Vendor warrants and guarantees that items delivered under this Order do not and will not infringe upon any valid patent, trademark or copyright owned or controlled by any other corporation, firm or person. Except as otherwise provided in subparagraph 13.A. above, Vendor shall defend and indemnify tec5USA in any suit or proceeding brought against tec5USA, its successors or assigns, so far as the same is based on a claim that any product, or any part thereof, furnished under this Order constitutes an infringement of any trademark or patent valid in the United States or any foreign country or jurisdiction. Vendor shall be notified promptly in writing and given authority, information, and assistance for the defense of the same by tec5USA (at Vendor’s expense). Vendor shall pay all damages and costs awarded therein against tec5USA, its successors or assigns. In the event a court of competent jurisdiction determines or declares an infringement and the use of said product or any part is enjoined, Vendor shall, at it its own expense, either procure for tec5USA, its successors or assigns, the right to continue using said product or part, replace the same with non-infringing products, or modify the item so it becomes non-infringing.

14. NON-ASSIGNMENT: Any assignment by Vendor of this Order, any interest herein, or any payment due hereunder, or any delegation of Vendor’s obligations hereunder, without the prior written consent of tec5USA shall be void. All claims for monies due or to become due from tec5USA shall be subject to setoff or counterclaim arising out of this Order or any other tec5USA contract with Vendor whether entered into before or after the date of this Order.

15. TERMINATION: If: (a) Vendor ceases to conduct its operations in the normal course of business (including inability to meet its obligations as they mature); (b) any proceeding under any bankruptcy or insolvency laws is brought by or against Vendor; (c) a receiver for Vendor is appointed or applied for; or (d) an assignment for the benefit of creditors is made by Vendor, then tec5USA may terminate this Order without liability except for deliveries previously or subsequently made for goods that were accepted by tec5USA in accordance with the terms of this Order.

16. NON-WAIVER: Failure by tec5USA to enforce at any time or for any period of time any of the provisions hereof shall not be construed as a waiver of such provisions or the right of tec5USA thereafter to enforce each and every provision herein contained.

17. ENTIRE AGREEMENT: This agreement/Order and its related schedules, which are incorporated as though fully stated herein, constitutes the entire understanding between the parties with respect to goods and services specified herein and supersedes all previous negotiations, contemporaneous agreements and understandings, commitments and writings with respect thereto. Any alteration, modification, or amendment to this agreement shall be void unless in writing and signed by duly authorized representatives of both parties.

18. GOVERNING LAW: This agreement and/or Order shall be governed in all respects and interpreted in accordance with the laws of the state of New York without regard to conflict of law principles.

19. SEVERABILITY; BLUE PENCIL: This agreement shall be valid and binding, enforceable to the fullest extent permitted by law in accordance with its terms. In the event that any one or more of the provisions of this agreement shall be deemed invalid, illegal or unenforceable by a court of competent jurisdiction, the validity, legality and enforceability of the remaining provisions contained herein shall not be affected thereby. Vendor and tec5USA acknowledge and agree that each clause and covenant set forth herein constitutes a separate agreement independently supported by good and adequate consideration, the sufficiency of which is hereby acknowledged, and that each such clause and covenant shall be severable from the other provisions of this agreement and shall survive this agreement. If a court of competent jurisdiction determines that any provision contained herein is too broad to be enforced as written, such court shall have the right, power and authority to excise or modify such provision or provisions of these obligations as to the court shall appear unreasonable or unenforceable and to enforce the remainder of these obligations as so modified provided, however, that such reformation applies only with respect to the operation of such provision in the particular jurisdiction with respect to which such determination was made.

20. This agreement may be executed in one or more counterparts, each of which shall be deemed an original, including facsimile, email, and Portable Document Format (.PDF) copies, but all of which together shall constitute one and the same instrument.

21. MISCELLANEOUS:
Acceptance Criteria for Fabricated Parts
1. Drawing(s)/specification(s) accepted by both tec5USA and Vendor.
The terms and conditions of this Order are acknowledged and agreed by Vendor’s performance or rendering of services pursuant to this Order, for which no signature is required.