Standard Sales Order Terms & Conditions
Visiontech Standard Sales 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 Buyer or Seller, as applicable. “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 the entity, 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 Visiontech Solutions Group Inc., or any of its Subsidiaries or Affiliates, as applicable, as indicated as supplier on the Order.
f. “Subsidiary” means any entity in which Buyer or Seller, as applicable, 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. 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 or services ordered; or
c. initiates its processes for fulfilling the Order.
Products are deemed accepted by Buyer unless Buyer notifies Seller in writing within ten (10) days of delivery of Items for Item shortages, damage or defect. Buyer shall make no return of any Items for any reason without a Return Material Authorization (“RMA”) issued by Seller. If Buyer refuses to accept tender or delivery of any Items or returns any Items without the proper RMA, such Items will be held by Seller awaiting Buyer’s instruction for twenty (20) days. After this waiting period, Seller may deem the Items abandoned and dispose of them as Seller sees fit, without crediting Buyer’s account.
These Terms and Conditions, and not any Order or other Buyer document (which, if construed to be an offer is hereby rejected), will be deemed an offer or counter offer and is a rejection of any other terms or conditions. Buyer, by accepting any Items, making any payments or ordering any Items having previously received these Terms and Conditions, will be deemed to have assented to these Terms and Conditions, notwithstanding any terms contained in any prior or later communication from Buyer and whether or not Seller will specifically or expressly object to any of Buyer’s terms. Seller’s failure to object to any document, communication or act of Buyer will not be deemed a waiver of any of these Terms and Conditions.
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 not alter the Order (including a change to the ordered quantities, a change the scheduled delivery date, or a change in applicable drawings, designs, or specifications, method of shipment or packing, and/or place of delivery) without obtaining the written acknowledgement of Seller. 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 Buyer will be responsible for any increase in cost.
4. Amendment; Governing Law. Seller reserves the right to modify terms prior to shipment, require payment in advance, or delay or cancel any shipment or Order by reason of Buyer’s creditworthiness or should Buyer fail to fulfill any obligation when due. No agreement or understanding to modify or supplement these Terms and Conditions shall be binding upon Seller unless in writing and signed by an authorized agent of 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 Commonwealth of Virginia, and any disputes shall be resolved in accordance with Section 18 hereof.
5. 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) stop work under the Order on the effective 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 such termination.
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 ten (10) days after receiving such written notice to cure the Breach.
Seller may terminate or suspend any Order upon a breach by Buyer of its agreements with Seller by providing written notice of such breach. Buyer shall have five (5) days after receiving such written notice to cure the breach.
6. Shipping. In the absence of a prior written agreement as to shipping, Seller may select a carrier. Seller’s responsibility for any loss or damage ends, and title passes, when products are delivered to the carrier, to Buyer, or to Buyer’s agent (including, without limitation, any test house or value added service provider), whichever occurs first. Buyer will pay for storage charges if Seller holds products at Buyer’s request pending instructions or rescheduled delivery. Freight charges may be constructed on the basis of standard carrier tariffs and may not reflect actual transportation costs.
7. Warranty. Within thirty (30) days after receipt of each shipment of Items, Buyer shall have the right to examine and test the Items to determine if there is any damage, defect, or shortage. All claims for any damage, defect, or shortage, or for any cause whatsoever (whether the claim is based in contract, negligence, strict liability, other tort, or otherwise) shall be deemed waived unless made in writing and received by Seller within thirty (30) days after Buyer’s receipt of the Items, or, if the claim is for non-delivery of Items, within thirty (30) days after the date the Items were to be delivered; provided, however, that any claim not reasonably discoverable within that thirty (30) day period (including a claim discoverable only in processing, further manufacture, other use, or resale) must be made in writing and received by the Seller within sixty (60) days after Buyer’s receipt of the Items, or within thirty (30) days after Buyer learns of the facts giving rise to the claim, whichever occurs first. Failure of Seller to receive written notice of any such claim within the applicable time period shall be deemed an absolute and unconditional waiver by Buyer of the claim regardless of whether the facts giving rise to the claim shall have been discovered or whether processing, further manufacture, other use, or resale of goods shall have taken place.
Any software or other intellectual property included in or relating to products is supplied by its manufacturer or licensor. Seller makes no representation or warranty with respect thereto and will have no liability in connection therewith. Buyer agrees to comply with all requirements with regard to proprietary and similar rights in and to any intellectual property (including any requirement to enter into a separate license agreement and prohibitions against duplicating or disclosing the same), even if Seller has broken the seal on any “shrink wrapped” software. If Buyer provides Seller with any intellectual property, Buyer warrants that it has all necessary legal rights to such property. Buyer will indemnify Seller against and hold it harmless from any and all liability, cost or expense arising from a breach or purported breach of the requirements described in this Section.
Except for the warranty coverage as set forth above, NEITHER SELLER NOR ITS SUPPLIERS WILL HAVE ANY LIABILITY OR OBLIGATION TO BUYER OR ANY OTHER PERSON FOR ANY CLAIM, LOSS, DAMAGE, OR EXPENSE CAUSED IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, BY THE INADEQUACY OF ANY ITEMS FOR ANY PURPOSE, BY ANY DEFICIENCY OR DEFECT IN ANY ITEM (WHETHER OR NOT COVERED BY ANY WARRANTY), BY THE USE OR PERFORMANCE OF ANY ITEMS OR BY ANY FAILURE OR DELAY IN SELLER’S PERFORMANCE HEREUNDER, OR FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED, INCLUDING, WITHOUT LIMITATION, PERSONAL INJURY OR LOSS OF BUSINESS OR PROFIT, WHETHER OR NOT BUYER WILL HAVE INFORMED SELLER OF THE POSSIBILITY OR LIKELIHOOD OF ANY SUCH DAMAGES.
8. Specifications. The performance of any value-added service may void any manufacturer’s warranty and render products non-returnable. Orders incorporating such services are, accordingly, non-cancelable and the products are non-returnable. Any third party value added service provider is deemed to be an agent of Buyer.
9. Indemnities. Unless specifically otherwise agreed in writing by Seller, Buyer acknowledges that Items sold by Seller are not intended for, authorized, and will not be used in life support systems, human implantation, nuclear facilities or systems or any other application where product failure could lead to loss of life, personal injury, or catastrophic property damage. Buyer will indemnify and hold Seller harmless from any loss, cost or damage resulting from Buyer’s breach of the provisions of this Section.
10. Infringement. If any Items to be 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 take the following action: (i) secure the right to continue using any allegedly infringing item, but if that is not reasonably possible; then at Seller’s election (ii) modify the allegedly infringing item, without loss of functionality, to make it non-infringing; or (iii) replace the allegedly infringing item with a functionally equivalent non-infringing item.
11. Payment Terms and Invoices. Seller will submit all invoices to Buyer at the address designated on the applicable Order. Except as otherwise set forth on the front of an invoice or acknowledgment, terms of payment are net thirty (30) days from invoice date; prices are FOB Seller’s facility (as defined in the Uniform Commercial Code); and prices do not include any taxes, freight, handling, duty or other similar charges, payment of which will be the sole responsibility of Buyer. Prices are conditioned upon timely payment and any past due balance will accrue interest at the monthly rate of one and one-half percent.
Prices are subject to change in response to supplier price increases or if a price has been quoted in error, whereupon, Buyer may cancel the undelivered portion of any affected order by delivering written notice to Seller prior to the shipment thereof and within ten (10) days of its receipt of notice of the price change. In order to defray the cost of Buyer account administration, any credit balance or other sum owed to Buyer which remains unclaimed by Buyer for a period of twelve (12) months will become the property of Seller.
12. Seller’s Security Interest. Seller retains a purchase money security interest in all Items sold by Seller to Buyer, and in the proceeds of any resale of such Items, until the purchase price and any other charges due to Seller have been paid in full. Upon any breach by Buyer of these Terms and Conditions, Seller will have all rights and remedies of a secured party under applicable law, which rights and remedies will be cumulative and not exclusive. Buyer is responsible for all costs and expenses incurred by Seller in collecting any sums owing by Buyer (which may include, but are not limited to, collection agency and reasonable attorneys’ fees).
13. 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 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.
14. Confidential Information. Buyer shall not disclose any confidential or proprietary information to Seller. However, should Buyer disclose any confidential or proprietary information about Buyer (“Buyer Confidential Information”), then Seller shall hold and safeguard such Buyer Confidential Information by using the same degree of care it uses to protect its own 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.
15. Compliance with Laws. Seller represents that Seller complies with all applicable requirements of Sections 6, 7 and 15 of the Fair Labor Standards Act, as amended, and of regulations and orders of the United States Department of Labor issued under Section 14 thereof.
16. Assignment. Seller may assign its accounts receivable to its Subsidiaries and Affiliates. No Order or Buyer obligation may be cancelled, rescheduled, reconfigured, or assigned without Seller’s prior written authorization and, in such event, Buyer will be liable to Seller for any additional costs and expenses incurred by Seller. Any purported assignment in violation of the preceding sentence will be null and void. Seller may assign any right or obligation set forth in the Order, without consent, to an Affiliate, a Subsidiary or to a successor entity in the event of a merger, consolidation or sale of Seller's business or substantially all of its assets, provided the assignee agrees in writing to assume all of Seller's obligations and liabilities under the Order and provided that Seller provides written notice of such assignment to Buyer.
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.
17. Resale Restriction. Products may be subject to export or resale restriction or regulation, and Buyer acknowledges that it will comply with such restrictions and regulations. Any statement as to product country of origin, Export Control Classification Number, or compliance with applicable law (including, without limitation, that products are lead-free or RoHS compliant) is as provided to Seller by its suppliers, and Seller does not warrant its accuracy and will not be liable for any error with regard to same. Buyer uses such information at its own risk.
18. 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.
19. Buyer’s Remedy. BUYER’S EXCLUSIVE REMEDY SHALL BE FOR DAMAGES AND SELLER’S TOTAL LIABILITY FOR ANY AND ALL LOSSES AND DAMAGES ARISING OUT OF ANY CLAIM WHATSOEVER (WHETHER THE CLAIM IS BASED ON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY) SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE ITEMS IN RESPECT TO WHICH THE CLAIM ARISES OR, AT SELLER’S OPTION, THE REPAIR OR REPLACEMENT OF THE GOODS. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES RESULTING FROM ANY CLAIM (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, BUSINESS LOSSES, DAMAGE TO PROPERTY, OR ANY LIABILITY OF BUYER TO THIRD PARTIES).
In no event is Seller liable to Buyer or any third party for any liability, claims, obligations, damages, costs, or expenses, including without limitation, any direct, indirect, special, incidental, or consequential damages (including lost profits, business losses, personal property damage, personal injury, and death) arising out of or relating to the sale of Items by Seller to Buyer or any related services provided to Buyer. Seller is not liable for, and Buyer assumes liability for, all personal injury and property damage connected with the handling, transportation, possession, processing, repackaging, further manufacture, or other use or resale of Items, whether the Items are used along or in combination with any other material.
20. Change in Ownership and Control. During the term of the applicable Order(s), if there is a change in the ownership or control of Buyer or a parent company of Buyer, Seller shall have the option of terminating the Order(s) immediately by giving written notice thereof. For purposes of this Section, a change in the ownership and control of Buyer or a parent company of Buyer, 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 Buyer or a parent company of Buyer 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 Buyer or the parent company of Buyer.
21. 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, Seller may, at its option, cancel any Order without any liability.
22. Time is of the Essence. Time is of the essence in performance of all obligations created by the Order and by these Terms and Conditions.
23. 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.
24. Force Majeure. Any failure or omission by Seller 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 Seller, including, without limitation, acts of God, floods, fires, severe weather, explosions, earthquakes, acts of public enemy, war, terrorism, rebellion, insurrection, strike, riot, sabotage, invasion, governmental interference or embargo, accident, epidemic or quarantine, fuel shortage, power, materials or supplies, delay in delivery by Seller’s suppliers or any other cause or causes beyond Seller’s reasonable control (collectively, a “Force Majeure Event”). In the event Seller 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. Seller reserves the right to cancel without liability any Order, the shipment of which is or may be delayed for more than sixty (60) days by reason of any Force Majeure Event. Seller reserves the right to allocate in its sole discretion among its customers, or defer or delay the shipment of, any Item which is in short supply.
25. License Restriction. All rights in technical data and software owned or licensed by Seller or the manufacturer are hereby reserved and deemed restricted or limited.
26. Agreement with the United States Government. If an Order is placed under a contract with the United States Government, Seller agrees to comply only with those contract provisions and regulations with which, pursuant to law, it must comply and of which Buyer has, at the time of the Order, placed Seller on written notice. In no event will United States Government Cost Accounting Standards apply.
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. The provisions of these Terms and Conditions shall control in the event of a conflict between the Order and these Terms and Conditions.