Terms & Conditions
Seller agrees to the following terms and conditions, and Seller further agrees that the provisions of the Purchase Order, including these terms and condition and all documents incorporated herein by reference, shall constitute the entire agreement by and between the parties hereto and shall supersede all prior agreements (oral or written) and negotiations relating to the subject matter hereof.
Warranty: Seller warrants that all items ordered hereunder shall be merchantable and free from defects in workmanship and materials and shall strictly conform to all applicable specifications, drawings, and approved samples, if any, including any specifications provided and shall be suitable for their intended purpose. These warranties shall be in addition to any other warranties, whether express, implied, or statutory. All warranties shall survive inspections, acceptance, and final payment by SemiLink. All warranties shall extend to SemiLink, its customers and subsequent purchasers or owners of the items or end products which they relate. Seller agrees, at its expense, to hold harmless SemiLink, its customers and subsequent owners or purchasers (“Indemnitees”) from and against any third-party claim or action against Indemnitees insofar as such claim or action is based upon a breach of the foregoing warranties or any acts or omissions of Seller. Seller agrees to indemnify Indemnitees from and against any and all liability, loss, costs and expenses, including costs of tests performed by SemiLink, attorneys’ fees and costs of litigation, resulting from any breach of Seller’s obligations or any acts or omissions of Seller. All warranties shall be construed as conditions as well as warranties and shall not be deemed to be exclusive.
Packing, Shipping and Risk of Loss: No charges will be allowed for boxing, wrapping or cartage or storage unless so specified in the Purchase Order. Seller shall pack or otherwise prepare all articles for shipment to secure the lowest transportation rates consistent with timely delivery, meeting carriers’ requirements and safeguarding against damages from weather, transportation, and storage. Risk of loss on all property shipped by Seller to SemiLink shall pass to SemiLink at the point of destination.
Delivery: Time is of the essence in the performance of the Purchase Order. If the delivery is delayed, the Seller shall pay SemiLink liquidated damages.
Inspection: Seller shall permit SemiLink’s inspectors and/or customers to have access to Seller’s plant at all reasonable hours for the purpose of inspection of any items or work in progress covered by the Purchase Order. Seller, without additional cost to SemiLink, shall provide all reasonable facilities and assistance for the safety and convenience of such inspectors. At the time of the inspections, Seller shall make available to the inspectors, samples of all drawings, specifications in process, preservation and packing data applicable to the items ordered hereunder. If requested, Seller shall promptly furnish to SemiLink an inspection certificate. All items shall be subject to final inspection and acceptance at the destination point, notwithstanding any prior payment, inspection, and acceptance. SemiLink may, at its option, (1) hold the rejected items for Seller’s instruction at Seller’s risk or (2) return them to the Seller, at Seller’s expense, or (3) terminate this order in accordance with the Termination for Cause provision, below. Seller shall promptly reimburse SemiLink for any and all costs of inspection and tests when items offered for final inspection and acceptance do not comply with the requirements of this Purchase Order. No replacement or correction of rejected items shall be made unless otherwise specified on SemiLink’s return material orders. Seller shall credit SemiLink’s account for the value of the items rejected plus the cost of packaging, inbound freight, and handling.
Confidential Information: Seller acknowledges that, in order to comply with the terms, it will be necessary for SemiLink to disclose to Seller certain Confidential Information of SemiLink or its customers. Seller agrees it shall not use for its own or any third party’s account or disclose to any third party any such Confidential Information, or copy, retain, or transfer any Confidential Information and will keep forever secret all Confidential Information of SemiLink. As used herein, the term “Confidential Information” means any trade secret, know-how or other manner of proprietary information of SemiLink or its customers, including specifically, financial data and projections, business plans and concepts and any sales, scientific, manufacturing or technical data, information, design, process, procedure, formula, improvement, blueprints, drawings, schematics or any other information that is retained by SemiLink and is not generally known in the industry.
Termination Without Cause: SemiLink may terminate this Purchase Order and work to be performed hereunder without cause, in whole or in part, at any time, by written notice to Seller. Such notice shall state the extent and date of such termination and, upon receipt thereof, Seller shall comply with SemiLink’s directions pertaining to such termination. The payments from SemiLink to the Seller prior to Termination Without Cause will belong to the Seller. Any materials provided by SemiLink to the Seller will belong to SemiLink.
Default: 1. In addition to termination without Cause, SemiLink shall be entitled to terminate this Purchase Order in the event the Seller: (i) defaults in or commits any breach of its obligations to SemiLink; or (ii) commits any act of bankruptcy; or (ii) files a petition in bankruptcy or has a petition in bankruptcy (filed against it); or (iv) has a receiver, trustee or custodian appointed or takes possession of any Seller’s assets; or (v) fails to deliver the items in accordance with the delivery schedule specified herein or any written extension thereof; or (vi) fails to replace, repair or otherwise correct any defects with respect to items in accordance with the provision of these terms and conditions. In the event of termination by SemiLink pursuant to an event of Default by Seller, SemiLink, in addition to its right of termination as set forth above, may (i) purchase similar items elsewhere on such terms and in such manner as SemiLink may deem reasonable in its sole and absolute discretion, and Seller shall be liable to SemiLink for any excess costs occasioned by SemiLink thereby; and/or (ii) provide such materials, supplies, equipment and labor as may be necessary to complete said work, pay for same and be reimbursed by Seller for same; and/or (iii) order all work under this Purchase Order stopped immediately and enter upon the premises and take possession, for use in completing the work, of all materials, regardless of stage of completion, supplies, tools, equipment and appliances of the Seller thereon and complete the work, or have same completed by others, and be liable to Seller for no further payment under this Purchase Order, until final payment is due, and then only to the extent that the unpaid balance of the amount to be paid under this Purchase Order exceeds the damages and expenses of SemiLink in finishing the work, and/or (iv) require the Seller to transfer title and deliver to SemiLink, as directed by SemiLink, all (x) completed supplies and (y) partially completed supplies and materials, parts, tools, dies, jigs, fixtures, plans, drawings, information and contract rights (collectively referred to as “manufacturing materials”) that the Seller has produced or acquired for the terminated portion of this Purchase Order. Upon direction of SemiLink, the Seller shall also protect and preserve property in its possession in which SemiLink, or SemiLink customers, have an interest. Failure of SemiLink to enforce any right under this clause shall not be deemed as a waiver of any right hereunder. The rights and remedies of SemiLink under this clause shall not be exclusive and are in addition to other rights and remedies provided by law or equity or under the terms of this Purchase Order.
Changes: SemiLink shall have the right at any time to make changes in the drawings, designs, specifications, quantities, delivery schedules, shipments, or packaging of any items under this Purchase Order. No change shall be effective unless authorized in writing by SemiLink. In the event such changes result in the delay or increase or decrease in expense to Seller, Seller shall notify SemiLink immediately and negotiate an equitable adjustment provided, however, that Seller shall, in all events, proceed diligently to perform the work or services or supply the items contracted for under this Purchase Order as so changed. No charge by Seller for such adjustment shall be valid unless submitted to and accepted by SemiLink within twenty (20) days from the date of the written notice of such proposed charge. SemiLink shall have the right to review or audit Seller’s records in the event of such a request.
Change of Materials or Processing: The Seller agrees to promptly notify the SemiLink in writing of any changes to the raw materials, products, manufacturing processes, or any other alterations that may affect the quality, composition, functionality, or performance of the products supplied under this agreement or change the products in any way. Such notification must be made as soon as reasonably possible, but in no event shall notification take place less than seven (7) days prior to shipment.
Upon receipt of such notification, the SemiLink shall have the sole discretion to evaluate the change and determine its acceptability. If the SemiLink, in its sole discretion, deems the change to be unacceptable, the SemiLink reserves the right to terminate the Purchase Order, in whole or in part, without penalty, upon written notice to the Seller. Any costs or liabilities incurred as a result of the change shall be borne solely by the Seller.
Indemnity for Infringement: The Seller shall, at its expense, indemnify and hold harmless SemiLink, its customers and all persons claiming under SemiLink, against any suit or suits for infringement of any patent, copyright or trademark or any misappropriation of trade secrets, and shall defend and indemnify the aforesaid parties against all damages, costs, and expenses, including all legal expense, incurred by any of them.
Indemnification: Seller agrees to defend, hold harmless and indemnify SemiLink from and against any third-party claim arising out of Seller’s acts or omissions, including Seller’s performance of this Purchase Order. Seller shall maintain, in amounts deemed acceptable to SemiLink, such insurance as will protect SemiLink from said risks and from any indemnified claim. Upon request of SemiLink, Seller shall furnish SemiLink with a certificate of such insurance providing that at least ten (10) days prior written notice in writing shall be given to SemiLink of cancellation or reduction of coverage.
Assignment: Seller shall not assign any rights or claims under this Purchase Order without the prior written consent of SemiLink and, absent SemiLink’s prior written consent, any such attempted assignment shall be void and of no force or effect. All claims for money due or to become due or to become due from SemiLink shall be subject to deduction by SemiLink for any setoff or claims which SemiLink may have against Seller arising out of this or any other of the SemiLink agreement with Seller.
Independent Contractor: The Seller is, and shall be deemed to be, an independent contractor at all times during the performance of the work specified in the Purchase Order.
Remedies and Non-Waivers: Except as otherwise expressly provided, the remedies provided hereunder shall be cumulative and in addition to the rights and remedies in law or equity available to the party. No waiver of a breach or any provision of this Purchase Order shall constitute a waiver of any other breach of any such provision.
Governing Law: This Agreement and any claim, controversy or dispute arising under or related to this Agreement, the relationship of the Parties to this Agreement, and/or the interpretation and enforcement of the rights and duties of the parties to this agreement, unless stated otherwise in those respective agreements as the case may be, shall be governed by and construed in accordance with the internal laws and decisions of the state of New York, without regard to the choice of law rules thereof. The parties hereto intend that the provisions of section 5-1401 of the New York General Obligations Law shall apply to this Agreement.
Jurisdiction: The parties irrevocably and unconditionally submit to the jurisdiction of the United States District Court for the Southern District of New York and New York state courts located in New York City and waive any objection to transferring any action, suit or proceeding arising out of this Agreement to such court. Each Party hereby irrevocably waives, and agrees not to assert, by way of motion, as a defense, counterclaim or otherwise, in any action or proceeding with respect to this Agreement, (a) any claim that it is not personally subject to the jurisdiction of the above-named court for any reason other than the failure to lawfully serve process, (b) that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such court (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise), and (c) to the fullest extent permitted by applicable law, that (i) the suit, action or proceeding in any such court is brought in an inconvenient forum, (ii) the venue of such suit, action or proceeding is improper, and (iii) this agreement, or the subject matter hereof, may not be enforced in or by such courts.
Governing Language: This Purchase Order was written in English, and this will be the language used for legal interpretation.
Injunctive Relief, Specific Performance: The parties hereto acknowledge and agree that any breach of the terms of this Purchase Order could give rise to irreparable harm for which money damages would not be an adequate remedy and accordingly the parties agree that, in addition to any other remedies, each party shall be entitled to obtain interim or injective relief and to enforce the terms of the Purchase Order by a decree of specific performance.
Force Majeure: Except for the obligation to pay amounts when due under this Purchase Order, neither party shall be liable to the other for damages due to a failure to carry out its obligations under this Purchase Order when that failure is in whole or part caused by fire, hurricane, flood, earthquake, lightning, or other natural event or disaster; epidemic, freight embargo; governmental or administrative action or prohibition; riot; strike (other than at the affected party’s operations or that of its suppliers); acts of public enemies or terrorists; sabotage; or other events beyond that party’s reasonable control (a “force majeure event”). A party whose performance is affected by a force majeure event immediately shall notify the other, describing the event and estimating its duration, and bears the burden of proving that the event qualifies as a force majeure event. The parties shall cooperate in good faith to mitigate the effects of the force majeure event; Provided, however, that, if Seller is unable to perform in a timely fashion, SemiLink may purchase replacement Goods or obtain substitute Services from another vendor without penalty, and those replacement Goods and substitute Services shall count towards any volume requirements in this Purchase Order. Alternatively, SemiLink may elect to terminate this Purchase Order. Unless Seller is excused from performing due to a force majeure event, if SemiLink elects to acquire replacement Goods and substitute Services from another supplier because Seller is unable to timely perform on the agreed schedule, Seller shall reimburse SemiLink for all commercially reasonable additional costs and expenses incurred to obtain the replacement Goods and substitute Services.
Survival: All representations, warranties, covenants, agreements, and indemnities set forth in or otherwise made pursuant to this Purchase Order shall survive and remain in effect following the expiration or termination of this Purchase Order, Provided, however, that nothing herein is intended to extend the survival beyond any applicable statute of limitations periods.
Electronic Signatures: An electronic signature or electronic record of this Purchase Order or any other ancillary agreement has the same legal effect as delivery of an original executed copy of this Purchase Order or such other ancillary agreement for all purposes.
No Subcontractors, Unless Authorized: Seller shall not utilize subcontractors to provide goods or perform services under this Purchase Order without first notifying Purchaser in writing as soon as reasonably practical and obtaining Purchaser’s written consent.