Standard Purchase Order Terms & Conditions
Worldwide Solutions Group Inc. dba Visiontech Solutions Group Standard Purchase Order
1. Definitions. As used herein, the following terms have the meanings indicated:
a. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the Buyer. “Control”, for the purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
b. “Buyer” means Worldwide Solutions Group Inc. dba Visiontech Solutions Group Inc., or any of its Subsidiaries or Affiliates, as applicable, as indicated as purchaser on the Order.
c. “Items” means goods and/or services provided or sold to Buyer from Seller pursuant to an Order.
d. “Order” means a transmission of a purchase order; purchase order release specifying specific quantities, shipping dates or delivery dates; or purchase order revision by Buyer to Seller electronically through a computer network or otherwise, by mail of hard copy, or by such other means as may be agreed by Buyer and Seller in writing, containing information evidencing a commitment by Buyer to purchase Items from Seller.
e. “Seller” means the entity, or any of its Subsidiaries or Affiliates, as applicable, as indicated as supplier on the Order.
f. “Subsidiary” means any entity in which Buyer owns 50% or more of the voting interests of the subject entity.
g. “Terms and Conditions” mean these Standard Purchase Order Terms and Conditions.
2. Acceptance of Order by Seller. Any Order referencing these Terms and Conditions is an offer by Buyer to Seller to enter into the purchase agreement described by such Order. Seller shall be deemed to have agreed to and accepted the Order (including any specifications or requirements stated therein) and these Terms and Conditions when Seller:
a. executes and returns a signed writing indicating its intent to be bound by the Order; or
b. delivers to Buyer any of the Items ordered; or
c. renders for Buyer any of the services ordered (where Items ordered are, or include, services).
d. Any Items received by Buyer shall only be purchased upon the terms of the Order (including these Terms and Conditions), notwithstanding any terms contained in any quotation, acknowledgment, invoice, or other document issued by Seller, or Buyer’s act of accepting or paying for any shipment or any other act. Seller’s acceptance of any Order is unqualified, unconditional, and subject only to these Terms and Conditions and any of Buyer’s terms specifically set forth on the Order or any signed documents referenced in Buyer’s Order. Buyer waives any right to contest the validity of these Terms and Conditions, or assert that they are void for any reason, upon Seller’s acceptance of the Order(s) referencing these Terms and Conditions. Seller reserves the right to update or modify these Terms and Conditions, at its sole discretion, from time to time, without prior notice to Buyer. Buyer hereby assumes an affirmative obligation to request and review Seller’s then-current terms and conditions. Each Order shall be subject to the terms and conditions in effect on the date of the Order.
3. Change Orders. Buyer may, at any time, by a written order, suspend performance hereunder, increase or decrease the ordered quantities, change the scheduled delivery date, or make changes in applicable drawings, designs, or specifications, method of shipment or packing, and/or place of delivery of any Items in an Order. If Buyer’s changes cause an increase in the cost or the time required by Seller for performance of the Order, Seller will notify Buyer immediately in writing and propose an equitable adjustment. However, Seller will proceed diligently to supply the Items contracted for under an Order as so changed. No claim by Seller for equitable adjustment will be valid unless submitted to Buyer in writing within twenty (20) days of the date on which an Order is changed and accompanied by an estimate of charges resulting from such change. Nothing in this Section is intended to excuse Seller from proceeding with this Order as changed or amended pending resolution of any equitable adjustment.
4. Amendment; Governing Law. No agreement or understanding to modify or supplement any Order or these Terms and Conditions shall be binding upon the Buyer and Seller unless in writing and signed by authorized agents of the Buyer and Seller, which writing must specifically acknowledge that these Terms and Conditions are superseded by such agreement or understanding. These Terms and Conditions and any Order shall be governed by and construed under the laws of the jurisdiction where the office of Buyer issuing such Order is located, with the exception of its choice of law provisions.
5. Acceptance by Buyer. Notwithstanding a prior payment, Buyer will have thirty (30) days after delivery of Items to accept Seller's Items. Acceptance of Items ordered pursuant to a particular Order will occur at the earlier of: (i) the date Buyer provides Seller with written notice of its acceptance of delivered Items; or (ii) expiration of the acceptance period.
6. Termination. Buyer may terminate or suspend any Order and/or any agreement governing or relating to an Order, in whole or in part, without cause, for Buyer’s convenience by providing written notice to Seller (“Notice of Termination”). Upon receipt of a Notice of Termination, and except as otherwise directed by Buyer, Seller shall (i) immediately stop work under the Order on the date and to the extent specified in the Notice of Termination, and (ii) complete performance of only the part of the Order that has not been terminated by the Notice of Termination. Buyer will pay for the Items delivered under a modified or partially terminated Order and for services properly performed through the date of any termination for convenience.
If Buyer believes Seller has failed to fully to perform its obligations under an Order (a “Breach”), Buyer will provide written notice to Seller, that in Buyer’s good faith opinion Seller has (i) failed to make delivery of the Items within the specified time, or any extension thereof; (ii) failed to replace or correct defective Items as directed by Buyer; (iii) failed to perform any of the provisions of the Order; or (iv) failed to make progress under the Order so as to endanger performance in accordance with its terms. Upon receipt of such written notice of a Breach, Seller shall have (10) calendar days after receiving such written notice to cure the Breach.
If an Order is canceled for Seller’s Breach or default, Buyer may procure, upon such terms and in such manner as Buyer may deem appropriate and substitute Items similar or substantially similar to those canceled. Without limiting Buyer’s remedies, Seller shall be liable for, and shall hold Buyer harmless and indemnify Buyer from, any damages occasioned by Seller’s breach or default, including any difference in the cost of obtaining substitute Items. Seller agrees to proceed with any portion of this Order not canceled. If it is determined by a court of law or similar judicial body that Buyer has improperly terminated this contract for breach or default, such termination shall be deemed to be for Buyer’s convenience.
7. Shipping Instructions.
a. Freight. Unless otherwise specified in an Order, all Items purchased from Seller will be delivered F.O.B. at Buyer's place of business in strict accordance with the shipping instructions specified on the Order.
b. Packaging; Classification; Labeling. Seller shall ensure that all Items are properly described, classified, packaged, marked, and labeled and are in proper condition for transportation according to applicable regulations and industry standards.
c. Early Shipments; Overshipments. On shipments made earlier than the period specified on the Order, Buyer, at its option, may withhold payment until the otherwise applicable payment date. Buyer may return overshipments to Seller at Seller’s expense. If Buyer returns Items, Seller’s account shall be debited for the total amount of any invoices (including, but not limited to, shipping expenses and taxes) paid thereon.
8. Warranty. Seller warrants the Items to be of good quality and to be free from defects in materials, workmanship, and design under normal use and service for the longer of: (i) one (1) year; or (ii) the term of any applicable manufacturer’s warranty or extended warranty, which Seller will be obligated to pass on to Buyer. Seller warrants that it will perform all services required under the Order in a highly professional and workmanlike manner. Seller further warrants that the Items are new and not previously used (unless specifically designated on the face of the Order as refurbished, rebuilt, or used).
9. Specifications. Seller warrants that the Items sold pursuant to an Order will be appropriate for the use(s) and purpose(s) contemplated by the parties, and will conform to the specifications, descriptions, samples/models, and applicable standards, that Buyer has specified to Seller or that Seller has advertised, documented, or otherwise conveyed to Buyer and accepted by Buyer.
10. Indemnities. Seller agrees to indemnify, defend and hold harmless Buyer and its officers, directors, employees, and agents, against all demands, damages, liabilities, costs and expenses arising out of or in connection with any of the following: (i) third party claims that result from the fault or negligence of Seller; (ii) failure by Seller to comply with applicable laws; (iii) breach of any obligation by Seller; and (iv) damage to any real or tangible personal property caused by Seller's conduct.
11. Infringement. If any Items provided by Seller become, or in Seller's opinion are reasonably likely to become, the subject of an infringement or misappropriation claim, Seller will promptly at Seller's expense take the following action: (i) secure the right to continue using any allegedly infringing item, but if that is not reasonably possible; then (ii) modify the allegedly infringing item, without loss of functionality, to make it non-infringing, but if not reasonably possible; then (iii) replace the allegedly infringing item with a functionally equivalent non-infringing item.
12. Inspection/Rejection by Buyer. Items are subject to Buyer’s inspection, testing, and approval. Buyer, at its option, may reject or refuse acceptance of Items that do not meet the requirements of the Order or any applicable warranty. Buyer may reject nonconforming Items by providing Seller with written notice (“Notice of Rejection”). Upon receipt of a Notice of Rejection from Buyer, Seller will have five (5) business days to cure all defects in the Items. If Seller is unable to cure all defects and redeliver conforming Items within the five (5) business day period, Buyer may cancel the Order. Buyer shall have the right, without waiving or prejudicing any of its other remedies, to return rejected Items or hold them at Seller's entire risk and expense. Items rejected or not accepted by Buyer shall be kept by or returned to Seller, at Seller’s expense and with Seller bearing any risk of loss in transit, and Seller agrees to refund to Buyer any payments (including, but not limited to, shipping expenses and taxes) made by Buyer for such Items. Payment by Buyer for any Items shall not be deemed an acceptance thereof.
13. Documentation. For each Item, Seller will supply Buyer with one set of all documentation that Seller normally furnishes with that Item. Buyer may make copies of all documentation for Buyer's internal use as limited by law.
14. Most Favored Customer, Payment Terms, and Invoices. Seller represents that the price charged to Buyer for Items is at least as low as the price charged by Seller to buyers of a class similar to Buyer under conditions similar to those specified in the Order, and that prices comply with applicable government laws and regulations in effect at the time of quotation, sale, and delivery. If Seller enters into any subsequent agreement or accepts an order, during the Term of this Agreement, which provides prices, benefits or terms for Items more favorable to the customer than those contained in this Agreement or any outstanding Order, then the Order will be deemed modified to immediately provide Buyer with those more favorable prices, benefits and terms. Seller will notify Buyer promptly of the existence of such more favorable prices, benefits or terms.
15. Invoices. Seller will submit all invoices to Buyer at the address designated on the applicable Order. Each invoice must identify the Order and contain an itemized description of the Items. Seller will invoice Buyer for Items at the prices and rates listed on the applicable Order. If no price is specified on an Order, the Items provided by Seller will be billed at the lower of: (i) the price last quoted (or billed) by Seller to Buyer, or (ii) the prevailing market price. Unless otherwise stated in the Order, Buyer shall pay Seller all undisputed amounts within the time frame set forth on the face of the Order after Buyer receives a correct invoice. Unless otherwise specified thereon, prices quoted on any Order include any and all charges for the Items ordered (including, but not limited to, any charges for boxing, packing, crating, cartage, taxes, or other additional charges).
16. Insurance. Unless specified otherwise on an Order, Seller will at all times during the term of the Order, at its own cost and expense, carry and maintain the insurance coverage listed in this Section, in the specified minimum amounts, with insurers acceptable to Buyer acting reasonably. Seller will not begin delivery of any Items to Buyer until Seller has fulfilled all insurance requirements of this Section: (1) Workers Compensation and Employers Liability Insurance in compliance with the statutory requirements of all applicable state, provincial and federal laws - $100,000 per occurrence; (2) Comprehensive General Liability Insurance (CGL) for bodily injury, death, or property damage - combined single limit of $1,000,000 per occurrence/aggregate, including blanket contractual, contractor protective, products, and completed operations liability, and broad form CGL endorsements; (3) Comprehensive Automobile Liability for bodily injury and property damage - combined single limit of $1,000,000; and (4) Excess Liability - $1,000,000 excess of above coverages. At Buyer's request, Seller will provide Buyer a certificate of insurance that certifies that the above policies are in full force and effect. Seller agrees that such policies will not be canceled nor materially changed without Buyer's prior written consent
17. Confidential Information; Proprietary Rights. Seller shall take all necessary steps to protect Buyer Confidential Information (as defined below) with at least the same degree of care that Seller uses to protect its own confidential and proprietary information of like kind, but in no event less than reasonable care. “Buyer Confidential Information” means all information relating to Buyer’s products or operations that is disclosed to Seller or created during the performance of any Order. Buyer Confidential Information includes all business or technical information that is disclosed to Seller, directly or indirectly, in writing, orally or visually, but does not include information that (a) was already in Seller’s possession before its receipt from Buyer without restriction on its use or disclosure, (b) is or becomes available to the general public through no act or fault of Seller, or (c) is rightfully disclosed to Seller by a third party without restriction on its use or disclosure. Except as otherwise expressly agreed to in writing by Buyer, Seller shall not (i) use any Buyer Confidential Information except to conduct business with or on behalf of Buyer or (ii) disclose to any third party any Buyer Confidential Information, except to conduct business with or on behalf of Buyer, in which event Seller shall (A) first ensure that such third party has signed a written confidentiality agreement having terms at least as restrictive as the terms of this Section 17 and (B) Buyer has consented in writing to such disclosure. At any time, upon Buyer’s request, Seller shall promptly return or destroy any media containing any Buyer Confidential Information.
Seller shall not disclose any confidential or proprietary information to Buyer. However, should Seller disclose any confidential or proprietary information about Seller (“Seller’s Confidential Information”), then Buyer shall hold and safeguard such Seller’s Confidential Information by using the same degree of care it uses to protect its own Buyer’s Confidential Information
NOTWITHSTANDING ANYTHING ELSE IN AN ORDER OR OTHERWISE, NEITHER OF THE PARTIES HERETO WILL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF AN ORDER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR (I) ANY EXEMPLARY, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR LOST DATA OR LOST PROFITS, EVEN IF ADVISED OR AWARE SUCH ARE POSSIBLE OR LIKELY OR (II) ANY MATTER BEYOND THE REASONABLE CONTROL OF A PARTY HERETO.
18. Compliance with Laws. Seller represents that Seller will comply with the provisions of all applicable laws, rules, regulations, directives, ordinances, orders, or statutes (collectively, the “Laws”) in performing any Order, including but not limited to all laws, rules and regulations with respect to equal employment opportunities, fair labor standards, workman's compensation and occupational health and safety regulations.
19. Assignment and Third-Party Beneficiary. Neither party may assign or otherwise transfer any right or obligation set forth in an Order without the prior written consent of the other party, except that either party will have the right to assign any right or obligation set forth in the Order, without consent, to an Affiliate or to a successor to such party in the event of a merger, consolidation or sale of such party's business or substantially all of such party's stock or assets, provided the assignee agrees in writing to assume all of the assignor's obligations and liabilities under the Order and provided that the assignor provides prompt written notice of such assignment to the other party herein. Any purported assignment in violation of the preceding sentence will be null and void. It is understood and agreed that these Terms and Conditions shall be binding upon and inure to the benefit of the parties and their respective parent(s), subsidiaries, affiliates, representatives, attorneys, agents, successors, and permitted assigns. There are no third-party beneficiaries to this Order. This Order shall not confer any rights or remedies upon any person other than the Buyer and Seller, and to the extent expressly set forth herein, their subsidiaries, affiliates, and their respective successors, and permitted assigns.
20. Set Off. In addition to any right of setoff or recoupment provided by law, Buyer may at any time and without notice recoup, deduct, or set-off claims by Seller or Seller’s subsidiaries or affiliates (or its assignee or financing institution) for amounts due or to become due from Buyer against any claims that Buyer or any Buyer subsidiary or affiliate has or may have arising out of this or any other transaction between Buyer or Buyer’s subsidiaries or affiliates and Seller or Seller’s subsidiaries or affiliates.
21. Disputes. Buyer and Seller agree to first enter into negotiations to resolve any controversy, claim or dispute (“Dispute”) arising under or relating to this Order. The parties agree to negotiate in good faith to reach a mutually agreeable resolution of such Dispute within a reasonable period of time. If good faith negotiations are unsuccessful, Buyer and Seller agree to resolve the Dispute by binding and final arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect. The arbitration shall take place in the City of Charlottesville, Commonwealth of Virginia. The arbitrator(s) shall be bound to follow the provisions of this Order in resolving the Dispute, and may not award punitive damages. The decision of the arbitrator(s) shall be final and binding on the parties, and any award of the arbitrator(s) may be entered or enforced in any court of competent jurisdiction
22. Change in Ownership and Control. During the term of the applicable Order(s), if there is a change in the ownership or control of Seller or a parent company of Seller, Buyer shall have the option of terminating the Order(s) immediately by giving written notice thereof. For purposes of this Section 22, a change in the ownership and control of Seller or a parent company of Seller, as appropriate, shall be deemed to have occurred if and when any one or more persons acting individually or jointly purchases substantially all of the assets of Seller or a parent company of Seller or is or becomes a beneficial owner, directly or indirectly, of securities representing fifty percent (50%) or more of the combined voting power of the then outstanding securities of Seller or the parent company of Seller.
23. Bankruptcy. If (i) Seller becomes bankrupt, or makes or files a proposal, a notice of intention to make a proposal or an assignment for the benefit of creditors under any bankruptcy and/or insolvency laws a petition in bankruptcy is filed against the Seller or a receiver, trustee, custodian or other similar official is appointed in respect of Seller or of any of its assets; or (ii) Seller becomes insolvent, is generally not paying its debts as they become due, discontinues its usual business, dies, or if proceedings are initiated under any legislation by or against Seller to dissolve, wind-up or liquidate Seller or in respect of the reorganization, arrangement or compromise of its debts, Buyer may, at its option, in addition to any other remedies available to Buyer, cancel the Order without any liability.
24. Time is of the Essence. Time is of the essence in performance of all Orders. Seller will promptly notify Buyer of any expected delay, including its anticipated duration, causes, and Seller's remedial actions, and likewise will promptly notify Buyer of the end of the delay and its actual duration.
25. Severability; No Waiver. Invalidation of any of the provisions contained in these Terms and Conditions, or the application of such invalidation thereof to any person, by legislation, judgment, or court order shall in no way affect any of the other provisions hereof or the application thereof to any other person, and the same shall remain in full force and effect, unless enforcement as so modified would be unreasonable or grossly inequitable under all the circumstances or would frustrate the purposes hereof. No failure of either party to enforce at any time any of the provisions of any Order or these Terms and Conditions, or any rights or remedies with respect thereto, or to exercise any election herein provided, shall constitute a waiver of any such provision, right, remedy, or election or in any way affect the validity thereof or of these Terms and Conditions. The exercise by either party of any of its rights, remedies, or elections under an Order or these Terms and Conditions shall not preclude or prejudice such party's right to exercise at any other time the same or any other right, remedy, or election it may have.
26. Force Majeure. Any failure or omission by Seller or Buyer in performance of its obligation under this Order shall not be deemed a breach or create any liability for damages or other relief if it arises from any cause or causes beyond the reasonable control of such party, including, without limitation, acts of God, floods, fires, explosions, storms, earthquakes, acts of public enemy, war, terrorism, rebellion, insurrection, riot, sabotage, invasion, epidemic or quarantine (collectively, a “Force Majeure Event”). In the event a party hereunder shall be delayed or hindered in or prevented from performance of any act required hereunder by reason of a Force Majeure event, then performance of such act shall be excused for the period of delay and the period for the performance of such act shall be excused for the period of delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. If such failure or omission cannot be remedied within a reasonable period of time, the party awaiting performance shall have the right to terminate the Order.
27. UN Convention on Contracts for International Sale of Goods. The United Nations Convention on Contracts for the International Sale of Goods, the United Nations Convention on the Limitation Period in the International Sale of Goods of 1974, and Protocol of 1988 (amending the Limitation Period Convention) shall not be applicable to any transaction pursuant to these Terms and Conditions.
28. Independent Contractor. To the extent this Order calls for the provision of services, Buyer and Seller intend that an independent contractor relationship be created by this Order and nothing herein or done pursuant hereto shall be construed as creating an employer/employee relationship, partnership, joint venture, or other business group or concerted action. Seller shall pay for the services of all of its directors, officers, employees, agents, subcontractors, and/or representatives (including, without limitation, all salaries, taxes, insurance, fringe benefits, or other costs and expenses of any kind), and shall be solely responsible for the means and methods used by such directors, officers, employees, agents, subcontractors, or representatives and for maintaining control, direction and supervision of same in the performance of any services hereunder.
29. Survival. These Terms and Conditions which expressly or by their nature continue to apply after the Order shall survive the termination or expiration of the Order.
30. Entire Agreement. These Terms and Conditions along with the applicable Order and any other specifications or requirements transmitted by Buyer to Seller in writing in connection therewith which specifically references the applicable Order constitutes the entire agreement between the Seller and Buyer with respect to the matters contained therein and supersedes all prior oral or written representations and agreements. No amendment or modification to the Order will be binding on either party until it is agreed to in writing by both parties. The provisions of these Terms and Conditions shall control in the event of a conflict between the Order and these Terms and Conditions.