This purchase order is not binding upon the Buyer and no payment will be made hereunder until the acknowledgement copy is duly signed and is returned to KATO CABLE or if seller provides confirmation by e-mail. If the Seller ships product prior to sending confirmation, the Seller agrees that this contract shall constitute the whole contract between the parties. If Seller shall, for its own convenience, in addition to such acceptance desire its own form of acknowledgement and provisions thereof which would otherwise modify, conflict with, or contradict the provisions of this order, such provisions shall be deemed to be waived, and the provisions of this order, upon such acceptance, shall constitute the whole contract between the parties.
1. THE UNIFORM COMMERCIAL CODE ENACTED IN MINNESOTA APPLIES TO THIS TRANSACTION.
2. ALL SHIPMENTS MUST BE INSURED FOR MINIMUM VALUE ONLY.
3. ACCEPTANCE OF THIS ORDER IS EXPRESSLY LIMITED TO THOSE TERMS AND CONDITIONS SHOWN ON THIS PURCHASE ORDER. ANY OTHERS
ARE REJECTED, EXCEPT FOR THOSE EXPLICITLY ACCEPTED BY KATO CABLE IN WRITING.
4. MAIL INVOICES AND DUPLICATE BILL OF LADING OR EXPRESS RECEIPT PROMPTLY AFTER SHIPMENT.
5. UNLESS OTHERWISE PROVIDED HEREIN, NO CHARGE SHALL BE MADE BY SELLER FOR PACKAGING CONTAINERS, CRATING, TRANSPORTATION, OR STORAGE.
6. ALL GOODS NOT FULL Y COMPL YING WITH SPECIFICA TIONS OR WITH COMMERICAL TOLERANCES IN THE ABSENCE OF OTHER SPECIFICATIONS WILL BE SUBJECT TO RETURN FOR CREDIT OR REPLACEMENT AT OUR OPTION.
7. SELLER AGREES TO PROTECT, DEFEND, HOLD HARMLESS AND INDEMNIFY KATO CABLE AND ITS CUSTOMERS FROM AND AGAINST ANY AND ALL LIABILITY AND EXPENSE ARISING OUT OF THE ALLEGED INFRINGMENT BECAUSE OF A PURCHASE, SALE, OR USE OF THE ARTICLE HEREIN MENTIONED, OR ANY PATENT, TRADEMARK, COPYRIGHT OR CLAIM, THEREFORE OR BECAUSE OF ANY INJURY TO PERSON OR PROPERTY RESULTING TO ANY KATO CABLE CUSTOMER OR TO ANY PERSON WHATSOEVER FROM THE GOODS HEREIN PURCHASED.
1. DELIVERY AND ADVANCE COMMITMENTS: Seller shall place all orders for the scheduled deliveries of materials and parts necessary for its performance under this order at such times as will enable Seller to meet, but not unreasonably anticipate, the schedule of deliveries set forth herein, in the event of termination of or changes to this order. Buyer shall not be liable for any changes to costs arising out of commitments by Seller for the acquisition of said materials and parts, or for work performed hereunder. In advance of the time necessary to meet the delivery schedules hereunder, unless Buyer has given its prior written consent to such advance commitments of work. Items received more than 10 days before schedule may at KATO CABLE’S option, be returned at Seller’s expense, or be accepted and payment be based upon schedule delivery dates.
2. SHIPMENTS AND PACKAGING: Each container, and accompanying packing list, must show its order number. No charge will be allowed for packing, boxing, or cartage unless fully and separately itemized on the face hereof. All items shall be suitably prepared for shipment to secure the lowest transportation and insurance rates and to meet carrier’s requirements. All shipments to be packaged in strict conformity with Rule 41 Consolidated Freight Classification and all ICC Regulations, except where otherwise provided in Government Directives. Dangerous or explosive material must be packaged and labeled to conform with ICC Regulations. Only shipments of dangerous or explosive material should be insured for maximum value.
3. PAYMENT: Invoices shall be submitted in triplicate to Buyer when items are shipped. The time for payment of Seller’s invoices shall commence with date of actual receipt of items in complete accordance with the requirements of this order. Any adjustments in Seller’s invoices due to shortage, late delivery, rejection, or other failures to comply with the requirements of this order may be made by Buyer before payment.
4. DESIGN TOOLS, ETC: Any design, pattern, tool, die, jig, fixture, drawing, or test equipment hereto or hereafter furnished by KATO CABLE in connection with this order shall remain KATO CABLE’S property to be delivered to KATO CABLE upon request, and shall not be used in the manufacture of any article for any one other than KATO CABLE. Tools, dies, jigs, fixtures, and test equipment, the cost of which has been included in computing the price specified on the face hereof and for which KATO CABLE is to pay Seller as a separate item as indicated on the face hereof, shall, upon such payment, become the property of KATO CABLE and shall be marked as directed, held for delivery to KATO CABLE and shall not be used in the manufacture of any articles for any one other than KATO CABLE. Unless otherwise stated on the face hereof KATO CABLE SHALL HAVE NO OBLIGATION to furnish or pay for tools, dies, jigs, or equipment of any kind required for Seller’s performance of this order.
5. CHANGES: Buyer reserves the right, by written notice issued hereunder to make changes in quantities, in drawings and specifications, in delivery schedules, and in methods of shipment and packaging. If such changes cause an increase or decrease in price or in the time required for performance, Seller shall immediately notify Buyer thereof, and an equitable adjustment shall be made. Changes shall not be binding upon Buyer unless evidenced by a purchase order change notice issued and signed by Buyer. 6. WARRANTY AND INSPECTION: Seller expressly warrants that at the time of delivery thereof all items delivered hereunder will be in deformity with the applicable specifications, drawings and samples, that they will be free from defects, including latent defects, which warranty shall survive inspection, delivery, and payment (In material and workmanship, and they will be fit for their intended use.) Said warranties, however, shall not be deemed to limit any warranties of additional scope given to Buyer by Seller. Unless otherwise specified, all items will be subject to final inspection and acceptance at Buyer’s plant. Buyer may, at its option, either hold rejected items for Seller’s instructions and at Seller’s risk, or return them to Seller at Seller’s expense, and Seller shall promptly reimburse Buyer for any and all damages sustained by Buyer as a result of Seller’s breach of warranty. No replacement of rejected items shall be made unless otherwise specified on Buyer’s returned material order. Inspection and tests may be made by KATO CABLE (or the Government when articles are being procured for Government contract) at any time before, during, or after manufacture.
7. PATENTS: Seller shall, with respect to any device or composition of design submitted by Seller or of Seller’s standard manufacture, indemnify and save harmless KATO CABLE and its customers and agents against all loss, damage, and expenses which they may sustain as a result of infringement of any U.S. Patent in the normal use or sale of the items delivered hereunder, or arising out of or in connection with, the defense of any such claim or infringement.
8. BUYER’S USE: Buyer, its successors, and assigns, may subject all items to further manufacture, may combine them with other articles, or sell or put them to any use whatsoever, and no claim for royalties or additional compensation may be made by Seller by reason of such manufacture, combination, sale, or use.
9. TAXES: The price herein stated excludes all Federal taxes imposed on items furnished hereunder and Seller shall set forth all applicable taxes as separate items on invoices to be paid by KATO CABLE unless Buyer shall furnish Seller with tax exemption certificates.
10. PERFORMANCE OF WORK NOT ASSIGNABLE: Seller will not assign or sublet the work to be done hereunder without the written consent of KATO CABLE, but this provision shall not restrict Seller in the procurement of materials of component parts or special services. If Seller is not a manufacturer, Seller agrees to require compliance with all of the provisions of this order by its manufacturer the same as though such manufacturer was the Seller hereunder, and, if this order is terminated under Sections 14 and 15(1), KATO CABLE liability to Seller shall in no event exceed the same amount for which Seller would be liable to its manufacturer if such liability was determined on the basis of Sections 14 and 15(1).
11. FAIR LABOR STANDARDS ACT: Seller shall comply with provisions of the Fair Labor Standards Act in the manufacture of articles hereunder and Seller shall accompany all invoices with appropriate certification of compliance.
12. TIME: Time shall be of the essence hereunder.
13. CONFIDENTIAL: Seller shall not without first obtaining Buyer’s written consent, disseminate the fact that Seller has furnished or has contracted to furnish Buyer the items covered hereby, nor except as is necessary for performance of this order, shall Seller disclose any of the details connected with this order to third parties.
14. TERMINATION: (A) KATO CABLE may terminate, for its convenience, work under this order, in whole or in part, at any time by written notice. Upon any such termination, seller shall, to the extent and at the times specified by KATO CABLE, stop all work on this order, place no further orders hereunder, terminate work under orders outstanding hereunder, assign to KATO CABLE all Sellers interest under terminated subcontracts and orders, settle all claims thereunder after obtaining KATO CABLE approval, protect all property in which KATO CABLE has or may acquire an interest, and transfer title and make delivery to KATO CABLE all articles, materials, work in process, or other things held or acquired by Seller in connection with terminated portion of this order. Seller shall proceed promptly with KATO CABLE’S direction respecting each of the foregoing without awaiting settlement of payment of its termination claim. (B) Within six (6) months from such termination, Seller may submit to KATO CABLE its written claim for termination charges, in the form and with the certification prescribed by KATO CABLE. Failure to submit each claim within such time shall constitute a waiver of all claims and a release of all KATO CABLE liability arising out of such termination. (C) The parties may agree upon the amount to be paid Seller for such termination. If they fail to agree, KATO CABLE shall pay Seller the amount due for articles delivered prior to termination and in addition thereto, but without duplication, shall pay the following amounts: (1) The contract price for all articles completed in accordance with this order and not previously paid for. (2) (a) The actual costs incurred by the Seller, which are properly allocable or apportionable under recognized commercial accounting practices to the terminated portion of this order, including the cost of discharging liabilities which are so allocable or apportionable, and (b) a sum equal to 2% of the part of such costs representing the costs of articles of materials not processed by the Seller, plus a sum equal to 8% of the remainder of such costs shall exclude any charge for interest on borrowings and shall exclude the cost of discharging liabilities for parts, materials, and services not received by the Seller before the effective date of termination. If it appears Seller would have sustained a loss on the order, no profit shall be allowed under subdivision (b) and an adjustment shall be made reducing the amount of the settlement to reflect the indicated rate of loss. (3) The reasonable costs of the Seller in making settlement hereunder and in protecting property in which KATO CABLE has or may acquire an interest. (D) Payments made under paragraph 14 (C) exclusive of payments under subparagraph (3), shall not exceed the aggregate price specified from any amounts payable to Seller under this Section 14 all amounts payable in respect of property lost, damaged, stolen or destroyed prior to delivery to KATO CABLE. (E) The foregoing paragraphs (a) to (d), inclusive, shall be applicable only to termination for KATO CABLE convenience and shall not affect or impair any right of KATO CABLE to terminate this order for Seller’s default in the performance hereof.
15. CONDITIONS APPLICABLE TO ORDERS PLACED UNDER U.S. GOVERNMENT CONTRACTS OR SUBCONTRACTS: The condition of this Article 15 shall apply as a part of the terms and conditions of this order if U.S. Government contract number is noted to the face of this order. (A) AUDIT AND INSPECTION: Seller shall provide an inspection system and for inspection of premises satisfactory to the U.S. Government. If any inspection or test is made by the Government on the premises of the Seller, Seller shall provide all reasonable facilities and assistance for the safety and convenience of the inspectors in the performance of their duties. Seller agrees that, for a period of three (3) years following final payment to Seller hereunder any duly authorized representative of the U.S. Government shall have access to and the right to examine any directly pertinent books, papers, documents, and records of Seller involving transactions related to this order. (B) MILITARY SECURITY REQUIREMENTS: The military security requirements clause contained in Paragraph 7-104-12 of the Armed Service Procurement Regulation, as in effect on the date of this order is made a part hereof by this reference provided, however, that whenever the word “Government” appears in said clause it shall be deemed to read “Government or Buyer”, and whenever the work “Contractor” appears therein it shall be deemed to read “Seller”. (C) EMPLOYMENT OF ALIENS: Seller agrees that it will not permit any aliens to have access to plans, specifications, drawings, or accompanying enclosures, or the work under this order, or to participate in trials or inspections unless written consent of the Government is obtained. (D) LABOR PROVISIONS (1) Goods supplied under this order shall be manufactured in accordance with provisions of the Walsh-Healey Public Contracts Act. (2) In performing work under this order, Seller will not discriminate against any employee or applicant for employment because of race, religion, color or national origin. The foregoing includes but is not limited to employment, transfer, upgrading, or demotion; recruitment or recruitment advertising: layoff or termination; rates of pay or other forms compensation; and selection for training, including apprenticeship. Seller will post in conspicuous places, available for employees and applicants for employment, notices setting forth nondiscriminating provisions. (3) Whenever an actual or potential labor dispute is delaying or threatens to delay the timely performance of this contract, Seller will immediately give notice thereof to KATO CABLE. Said notice shall include all relevant information with respect to such dispute. (E) TOOL CLAUSE: Title to all tools, jigs, dies, fixtures, test equipment and other similar items specified on the face hereof or the cost of which is charged against this contract shall vest in KATO CABLE for the benefit of the Government upon delivery thereof to Seller or upon completion of manufacture of such tools, jigs, dies fixture, or test equipment by Seller. Seller shall have the right to use said items in the performance of this order only, and upon the completion of termination thereof, Seller shall comply at KATO CABLE’S expense, with all instruction received from KATO CABLE with respect to the delivery or disposition thereof. Until so delivered or disposed of, Seller shall at its own expense preserve, protect, maintain, and repair said items in accordance with good industrial practice and indemnify KATO CABLE and/or the Government against all loss or damage of such items, ordinary use, wear, and tear excepted. (F) LAW: Seller agrees that the items will be manufactured or furnished in compliance with all applicable provisions of the Federal laws, as heretofore or hereafter amended, known as the Fair Labor Standards Act, Walsh-Healey Act, Eight Hour Law, Buy American Act, Vinson Trammel Act, Royalty Adjustment Act, and the Espionage Act (and status relative thereto) and all applicable regulations, rulings and interpretations issued thereunder. (G)RENEGOTIATION ACT: this order is subject to the Renegotiation Act of 1951 (P.L. 9, 82nd Congress), as amended, and shall be deemed to contain all the provisions required by Section 104 of said Act, Seller agrees to insert all the provisions of this subparagraph, including this sentence, in all subcontracts as required by Section 104 of the Renegotiation Act of 1951, provided that Seller shall not be required to insert said provisions in any subcontract of a class or type described in Section 106(A) of said Act. (H) LICENSE: To the extent required by contract between KATO CABLE and the Government and/or Prime under which this order is placed, Seller will secure for and grant to the Government and/or Prime a non-exclusive, irrevocable, nontransferable, royalty-free license to make, have made and use for Governmental purposes and to sell or otherwise dispose of in accordance with law, material embodying any and all inventions made, conceived for actually reduced to practice for the purpose of fulfilling this order which are now or hereafter may be covered by United States patents which are now or hereafter may be owned or controlled by Seller or under which Seller now has or hereafter may have the right to grant licenses. (I) TERMINATION Cost Principles and Records: In the event of termination under the provision of Paragraph 14 above, costs shall be determined in accordance with cost principles applicable to the referenced Government contract, and Seller shall make available to KATO CABLE and the Government its book, records and documents pertaining to cost and termination hereunder for six (6) years after final settlement.