The purchase order and the terms and conditions contained herein constitute the sole and entire agreement of the parties with respect to the purchase of the goods, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of this order. The Shamrock Companies, Inc. or any of its subsidiaries (“Shamrock”) hereby rejects any and all terms or conditions proposed by the seller of the goods (“Seller”), whether or not contained in any of Seller’s business forms (including any order acknowledgement). This order expressly limits Seller’s acceptance to the terms and conditions contained herein. Seller’s shipment of the goods will be considered Seller’s acceptance to the terms and conditions contained herein.
PACKAGING AND SHIPMENT
Goods shall be suitably packed to secure lowest transportation costs and to conform with the requirements of common carriers and any applicable specifications. Shamrock’s order numbers and symbols must be plainly marked on all invoices. Shamrock’s count or weight shall be final and conclusive on shipments not accompanied by packing lists.
Seller represents and warrants that the price for the goods is the lowest price charged by Seller to any of its external buyers for similar volumes of similar goods. If Seller charges any other buyer a lower price, Seller must apply that price to all products sold to Shamrock hereunder.
Seller warrants to Shamrock and any end user that:
(a) All goods and work covered by this order will conform to the specifications, drawings, samples, symbols or other description specified by Shamrock and will be merchantable, of good material and workmanship and free from defect.
(b) All goods and work covered by this order which is in accord with Seller’s design, drawings or specifications will be fit and sufficient for the purpose intended.
(c) All goods are merchantable, of good material and free of defects (both latent and patent)
(d) it owns or has the right to use the intellectual property appearing in connection with the goods and neither the goods, nor the sale or use thereof, will infringe any US or foreign patent or intellectual property right of any third party.
All goods and work will be subject to final inspection and approval by Shamrock after delivery, notwithstanding prior payment, it being expressly agreed that payment will not constitute final acceptance. Shamrock at its option may either reject any goods or work not in conformity with the requirements or terms of this order, or re-work the same at Seller’s expense. Shamrock may reject the entire shipment where it consists of a quantity of similar goods and sample inspection discloses that ten (10%) percent of the goods inspected are defective, unless Seller agrees to reimburse Shamrock for the cost of a complete inspection of the goods included in such shipment. Rejected goods may be returned at Seller’s risk and expense at the full invoice price plus applicable incoming transportation charges, if any. No replacement of defective goods or work shall be made unless specified by Shamrock.
Delivery shall be in accordance with Shamrock’s delivery schedule. Material fabricated beyond Shamrock’s releases is at Seller’s risk. Seller shall not make material commitments or production arrangements in excess of the amount or in advance of the time necessary to meet Shamrock’s delivery schedule, and, unless otherwise specified herein, no deliveries shall be made in advance of Shamrock’s delivery schedule. Neither party shall be liable for excess cost of deliveries or defaults due to causes beyond its control and without its fault or negligence, provided, however, that when the Seller has reason to believe that deliveries will not be made as scheduled, written notice setting forth the cause of the anticipated delay will be given immediately to Shamrock. If Seller’s delay or default is caused by the delay or default of a subcontractor, such delay or default shall be excusable only if it arose out of causes beyond the control of both Seller and subcontractor and without the default or negligence of either of them and the supplies or services to be furnished were not obtainable from other sources in sufficient time to permit Seller to meet the required delivery schedule. Except for an event of god, if Seller fails to comply with the delivery schedule, Shamrock shall have the right to cancel this order and purchase the goods elsewhere and hold Seller liable for any additional cost and expenses suffered by reason thereof, including any consequential damages.
STATEMENT OF ACCOUNT
An itemized statement of account must be promptly sent to Shamrock’s Accounting Department to meet terms of payment particularly if a discount is involved. Delays in receiving statement or invoice and also errors and omissions on statement, will be considered just cause for withholding settlement without losing discount privilege.
(a) Unless otherwise herein agreed, special tools, dies, jigs, fixtures and patterns (hereinafter collectively referred to as “Special Tooling”) used in the manufacture of said goods shall be furnished by and as the expense of Seller, shall be kept in good condition and when necessary shall be replaced by Seller without expense to Shamrock. Shamrock may at any time and at its sole discretion reimburse Seller for the cost of any of the Special Tooling and/or replacements and become the owner and entitled to the possession of same.
(b) If the price stated on the face hereof includes the cost of any Special Tooling or special equipment fabricated or acquired by Seller for the purpose of filling the order, such Special Tooling and equipment and any process sheets related thereto shall become the property of buyer and to the extent feasible shall be identified by Seller as such. Unless otherwise specified herein, Shamrock shall make payment therefore only upon acceptance of the first run of parts fabricated therewith, Seller shall at its own expense maintain such Special Tooling and equipment in proper working order and shall be responsible for all loss of or damage thereto while in its possession and shall use the same only for the production of goods for Shamrock, unless otherwise authorized in writing. Seller shall follow its normal industrial practice in maintaining property control records on such Special Tooling and equipment and when this order has been completed, such Special Tooling and equipment shall be disposed of as Shamrock may direct.
BUYER’S PROPERTY IN SELLER’S POSSESSION
Title to any property furnished by Shamrock hereunder on other than a charge basis shall, at all times, remain in Shamrock, but Seller assumes the risk of and shall be responsible for any loss thereof or damage thereto however caused.
Shamrock shall not be liable for any loss, damage or expense resulting directly or indirectly from any delay in delivery or non-delivery of such property to be furnished by Shamrock or from the use of such property furnished by Shamrock which is defective. Shamrock’s liability being expressly limited to the replacement of defective property upon return thereof to Shamrock within two (2) months from receipt thereof by Seller.
Seller agrees that unless otherwise indicated in this order, (a) the prices herein do not include any state or local sales, use, or other tax from which an exemption is available for purposes of this order, and (b) the prices herein include all other applicable federal, state and local taxes in effect at the date of this order. Seller agrees to accept and use tax certificates when supplied by Shamrock if acceptable to the taxing authorities, in case it shall be determined that any tax included in the prices herein was not required to be paid by Seller. Seller agrees to notify Shamrock and to make prompt application for the refund thereof, to take proper steps to procure the same and when received, to pay the same to Shamrock.
Shamrock, with Seller’s consent, may make written changes, if any, within the general scope of this order, in any one or more of the following: (a)drawings, designs or specifications, where the supplies to be furnished are to be specially manufactured for the Shamrock in accordance therewith;
(b)method of shipment or packing;
(c)place or time of delivery, and;
(d)property to be furnished by Shamrock, if any such change causes an increase or decrease in the cost of, or the time required for, performance of this order, an equitable adjustment shall be made in the price or delivery schedule, or both, and the order shall be modified in writing accordingly. Any claims by the Seller for adjustment under this article must be asserted within twenty (20) days from the date of notification of the change. Provided, however, that Shamrock, if it decides that the facts justify such action, may receive and act upon any such claim asserted at any time prior to final payment under this order. Where the cost of goods made obsolete or excess as a result of a change is included in Seller’s claim for adjustment, Shamrock shall have the right to prescribe the manner of disposition of such property.
No change to this order is binding upon Shamrock unless it is in writing, specifically states that it amends this order and is signed by an authorized representative of Shamrock.
PATENT INDEMNITY CLAUSE
Seller guarantees that the sale or use of the Seller’s products will not infringe any U.S. or foreign patent and Seller shall save Shamrock harmless from all judgements and decrees that may be entered against Shamrock or Shamrock’s vendees, mediate or immediate and against all costs and expenses that Shamrock shall incur by reason of any infringement of claim therefore whether such infringement be direct or indirect, by use of Seller’s products with Seller’s knowledge of its intended use. Seller covenants that it will, upon Shamrock’s request, and Seller’s expense, defend or assist in the defense of any suit or action that may be brought against Shamrock or Shamrock’s vendees, mediate or immediate, or against those selling or using Seller’s products by reason of any infringement or claim thereof predicated upon the sale of Seller’s products or use thereof as above provided.
All drawings, specifications and data furnished by Shamrock to Seller hereunder shall remain the property of Shamrock and shall not be disclosed by Seller and shall be used by Seller only as and to the extent required for the performance of this order, unless the Shamrock shall otherwise approve in writing. Upon completion of work by Seller under this order and upon Shamrock’s request, Seller shall promptly return to Shamrock all drawings, specifications and other data furnished by Shamrock in connection therewith, together with all copies or reprints then in Seller’s possession or control, and Seller shall thereafter make no further use either directly or indirectly of any such drawings, specifications or data or any information derived therefrom, without Shamrock’s prior written consent.
All non-public, confidential or proprietary information of the Shamrock, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Shamrock to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the order is confidential, solely for the use of performing the order and may not be disclosed or copied unless authorized by Shamrock in writing. Upon Shamrock’s request, Seller shall promptly return all documents and other materials received from Shamrock. Shamrock shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to the Seller at the time of disclosure; or (c) rightfully obtained by the Seller on a non-confidential basis from a third party.
COMPLIANCE WITH APPLICABLE LAWS
Seller agrees that in the performance hereof, it will comply with all applicable laws, statutes, rules, regulations or orders of the United States Government or of any state or political subdivision thereof, and same shall be deemed incorporated herein by reference. Without limiting the generality of the foregoing, Seller agrees that it will include on all invoices issued by the Seller hereunder the following statement: “The Seller represents that all equipment and/or services furnished under this contract shall meet current safety requirements of the Occupational Safety and Health Act and Seller agrees to indemnify Shamrock against any and all liability on account of noncompliance therewith.”
Shamrock shall have the right to cancel for default all or any part of the undelivered portion of this order if Seller does not make deliveries as specified in the delivery schedule or if Seller breaches any of the terms hereof including warranties of Seller or if Seller’s failure to perform this order is due to unforeseeable causes beyond the control and without the fault and negligence of Seller (other than insolvency or an act of bankruptcy) such cancellation shall be deemed to have been made pursuant to Article 19 herein of entitled, “Termination”, provided that such causes shall include delays and defaults or subcontractors only to the extent set forth in the last sentence of Article 6 hereof. Such right of cancellation is in addition to and not in lieu of any other remedies which Shamrock may have in law or equity.
None of the sums due or to become due nor any of the work to be performed under this order shall be assigned nor shall Seller subcontract for completed or substantially completed goods called for by this order without Shamrock’s prior written consent.
Seller agrees that Shamrock shall have the right to set-off against any amounts which may become payable by Shamrock to Seller under this order or otherwise, any amounts which Seller may owe to Shamrock whether arising under this order or otherwise.
The failure of Shamrock to insist, in any one or more instances, upon the performance of any of the terms, covenants, or conditions of this order or to exercise any right hereunder, shall not be construed as a waiver or relinquishment of the future performance of any such term, covenant or condition or the future exercise of such right, but the obligation of Seller with respect to such future performance shall continue in full force and effect.
The performance of work under this order may be terminated, in whole or from time to time in part, by the Shamrock in accordance with this Article. Termination of work hereunder shall be effected by delivery to the Seller of a notice of termination specifying the extent to which performance of work under the order is terminated and the date upon which such termination becomes effective. Such right of termination is in addition to and not in lieu of the rights of Shamrock set forth in Article 15 hereof.
Seller agrees to indemnify and save Shamrock harmless from claims for death or injury to Seller or any of Seller’s personnel arising while such personnel are on premises owned or controlled by Shamrock in connection with a performance of this order and Seller shall maintain Workman’s compensation insurance and Employee’s Liability insurance.
EQUAL OPPORTUNITY CLAUSE Seller and its subcontractors shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability.
RIGHT OF ENTRY
Seller shall permit Shamrock, its customers, and/or applicable regulatory agencies to enter Seller’s premises for the purpose of ensuring Seller’s compliance with the terms and conditions of any order, including but not limited to inspection of work, records and materials.
Conflict Mineral Statement:
Products and materials provided shall be free of conflict minerals. If Seller has reason to believe that products or materials provided contain conflict minerals, supplier shall notify Horizons in writing.
All products and materials provided shall be in compliance with the 2011/65/EU directive on the Restriction of Hazardous Substances in Electrical and Electronic Equipment (ROHS) as well as other applicable state, local and national laws related to health, safety and the environment.
NO THIRD-PARTY BENEFICIARIES
This order is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
All matters arising out of or relating to this order shall be governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule (whether of the State of Ohio or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Ohio.
The rights and remedies under this order are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
If any term or provision of this order is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Provisions of this order which by their nature should apply beyond their terms will remain in force and effect after termination or delivery of the goods subject to this order, including but not limited to, the following provisions, Prices, Set-off, Warranties, Patent Indemnity Clause, Compliance with Laws, Drawings/Confidential Information, Governing Law and Survival.