Intelligent Optical Systems, Inc.
PURCHASE ORDER TERMS AND CONDITIONS
Offer/Acceptance. The terms and conditions of this purchase order set forth the entire agreement between the parties hereto and supersede all previous communication, representation or agreements, whether oral or written, between the parties hereto with respect to the subject matter hereof. This purchase order is an OFFER TO BUY, subject to your acceptance, which must be demonstrated by either your performance of the purchase order or by a formal acknowledgment in writing. Any COUNTER-OFFER TO SELL is automatically construed as a CANCELLATION of this purchase order unless a change order is issued accepting a counter-offer. In the event Vendor form(s) or part(s) of forms are included in, or as an attachment to, any bid, proposal, offer, acknowledgment, or otherwise, Vendor agrees that, in the event of inconsistencies or contradictions, the terms and conditions of the solicitation document and this purchase order shall supersede and control over those contained in the Vendor’s form(s) regardless of any statement to the contrary in a Vendor form(s). Unless the Purchasing Agent specifically agrees in writing through overt reference or other express written indication of assent, terms and conditions on Vendor forms regarding choice of law, venue, warranty disclaimer or exclusion, indemnification or limitation of liability shall be of no effect.
Safety Information. All chemicals, equipment and materials proposed and/or used in the performance of this purchase order must conform to the current state and federal standards including those standards required by the Occupational Safety and Health Act of 1970. Bidders must furnish all Material Safety Data Sheets (MSDS) for any regulated chemicals, equipment or hazardous materials at the time of delivery.
Changes. The Vendor agrees to furnish the products and/or services in strict accordance with the specifications, and at the price set forth for each item. Nothing in the purchase order may be added to, modified, superseded or otherwise altered except in writing signed by an authorized representative of Intelligent Optical Systems, Inc., (the “Company”) and acknowledged by the Vendor. Each shipment received or service performed shall be only upon the terms contained in the purchase order, notwithstanding any terms that may be contained in any invoice or other act of Vendor other than acknowledgment of a written change order to the purchase order.
Delivery. Unless otherwise specified, in the solicitation or in this order, delivery shall be F.O.B. destination. In its acceptance of any quotation offer, the Company is relying on the promised delivery date, installation, or service performance as material and basic to its acceptance. In the event of Vendor’s failure to deliver or perform as and when promised, the Company reserves the right to cancel its order, or any part thereof, without prejudice to its other rights, and Vendor agrees that the Company may return all or part of any shipment so made, and may charge Vendor with any loss or expense sustained as a result of such failure to deliver or perform as promised. Time is of the essence.
Payment. Payment is contingent upon Company’s approval of articles delivered or services rendered in accordance with this purchase order. Payments will be made approximately 30 days after acceptance of an invoice issued in conformity with this purchase order. Payment is not evidence of Company’s final acceptance of such articles or services.
Rights In Data, Documents, and Computer Software or Other Intellectual Property (Company Ownership). Unless otherwise agreed in writing, any software, research, reports, studies, data, photographs, negatives or other documents, drawings or materials delivered by Vendor in the performance of its obligations under this purchase order shall be the exclusive property of the Company. The ownership rights described herein shall include, but not be limited to, the right to copy, publish, display, transfer, prepare derivative works, or otherwise use the works.
Quality. The Company will be the sole judge in determining “equals” with regard to quality, price and performance. All products delivered shall be newly manufactured and of the manufacturer’s current model, design or specification unless otherwise specified.
Warranties. All provisions and remedies of the Uniform Commercial Code relating to both implied and expressed warranties are herewith referred to and made a part of these Terms and Conditions and are in addition to any warranties stipulated in the specifications.
Inspection and Acceptance. Final acceptance is dependent upon completion of all applicable inspection procedures. Should the products or services fail to meet any inspection requirements the Company may exercise all of its rights, including those provided in the Uniform Commercial Code. In the case of services, the Company reserves the right to inspect services provided under this contract at all reasonable times and places. “Services” as used in this clause includes services performed or tangible material produced or delivered in the performance of services. If any of the services do not conform with purchase order requirements, the Company may require the Vendor to perform the services again in conformity with purchase order requirements, with no additional payment. When defects in the quality or quantity of service cannot be corrected by re-performance, the Company may (1) require the Vendor to take necessary action to ensure that the future performance conforms to purchase order requirements and (2) equitably reduce the payment due the Vendor to reflect the reduced value of the services performed. These remedies in no way limit the remedies available to the Company in the termination provisions of this purchase order, or remedies otherwise available at law.
Sub-Contracts. Should Vendor utilize a sub-contractor in fulfilling its obligation under this purchase order, Vendor will be solely responsible for the performance of such sub-contractor whether or not the sub-contractor was referred or recommended by the Company. Vendor will provide sub-contractor with a copy of these terms and conditions and secure the agreement of the sub-contractor to adhere thereto.
Assignment and Successors; Antitrust Claims. The Vendor shall not assign rights or delegate duties under this purchase order, or subcontract any part of the performance required under the purchase order, without the prior knowledge and express, written consent of the Company, which shall not be unreasonably withheld. This purchase order shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. Assignment of accounts receivable may be made only with written notice furnished to the Company.
Indemnification. In the event any article sold or delivered under this purchase order is covered by any patent, copyright, trademark, or application therefor, the Vendor will indemnify and hold harmless the Company from any and all loss, liability, cost, expenses and legal fees incurred on account of any claims, legal actions, or judgments arising out of manufacture, sale or use of such article in violation, infringement or the like of rights under such patent, copyright, trademark or application. If this purchase order is for services, to the extent authorized by law, the Vendor shall indemnify, save, and hold harmless the Company, its employees and agents, against any and all claims, damages, liability and court awards including costs, expenses, and attorney fees incurred as a result of any act or omission by the Vendor, or its employees, agents, subcontractors or assignees arising out of or in connection with performance of services ordered by this purchase order.
INDEPENDENT CONTRACTOR. The vendor shall perform its duties hereunder as an independent contractor and not as an employee. Neither the vendor nor any agent or employee of the vendor shall be or shall be deemed to be an agent or employee of the company. Vendor shall pay when due all required employment taxes and income tax withholding including all federal and company income tax and local head tax on any monies paid pursuant to this contract. Vendor acknowledges that the vendor and its employees are not entitled to unemployment insurance benefits unless the vendor or a third party provides such coverage and that the company does not pay for or otherwise provide such coverage. Vendor shall have no authorization express or implied to bind the company to any agreements, liability, or understanding except as expressly set forth herein. Vendor shall provide and keep in force, workers’ compensation (and show proof of such insurance upon request) and unemployment compensation insurance in the amounts required by law, and shall be solely responsible for the acts of vendor, its employees, and agents.
Communication. All communications, including reports, notices, and advice of any nature, concerning administration of this purchase order, prepared by Vendor for the Company’s use, must be furnished solely to the Purchasing Agent within the Company’s purchasing office.
Compliance with Laws. Vendor agrees to comply with all applicable federal and state laws, regulations and policies, as amended, including those regarding discrimination, unfair labor practices, anti-kick-back and collusion.
Insurance. The Vendor shall obtain, and maintain at all times during the term of this purchase order, insurance as specified in the solicitation or order, and shall provide proof of such coverage.
Termination For Default/Cause. Except as otherwise agreed, the Uniform Commercial Code shall govern in the case of transactions in goods. In the case of services, if the Vendor refuses or fails to timely perform any of the provisions of this purchase order, including but not limited to, compliance with specifications stated on the purchase order or in any attachment thereto, with such diligence as will ensure its completion within the time specified in this purchase order, the Purchasing Agent may notify the Vendor in writing of the non-performance, and if not promptly corrected within the time specified, such officer may terminate the Vendor’s right to proceed with the purchase order or such part of the purchase order as to which there has been delay or a failure to properly perform. The Vendor shall continue performance of the purchase order to the extent it is not terminated and shall be liable for excess costs incurred in procuring similar goods or services elsewhere. Payment for completed services performed and accepted shall be at the purchase order price.
In the case of remedies exercised under this paragraph for services, or analogous remedies exercised under the Uniform Commercial Code for transactions in goods, the Purchasing Agent may withhold amounts due to the Vendor as the Purchasing Agent deems to be necessary to reimburse the Company for the excess costs incurred in curing, completing or procuring similar goods and services. In the case of either transactions in goods or services, the Vendor shall not be in default by reason of any failure in performance of this purchase order in accordance with its terms if such failure arises out of acts of God; acts of the public enemy; acts of the Company and any governmental entity in its sovereign capacity; fires; floods; epidemics; quarantine restrictions; strikes or other labor disputes; freight embargoes; or unusually severe weather.
If after rejection, revocation, or other termination of the Vendor’s right to proceed under the provisions of the Uniform Commercial Code (in the case of transactions in goods) or this clause (in the case of services), it is determined for any reason that the Vendor was not in default under the provisions of this clause, or that the delay was excusable, the rights and obligations of the parties shall be the same as if the notice of termination had been issued pursuant to the termination after contract formation clause.
Cancellation Prior to Contract Formation. When this purchase order is not accepted by written acknowledgment, this purchase order may be canceled by written or oral notice to the Vendor prior to shipment of goods or beginning of performance of services.
Termination After Contract Formation. Unless otherwise agreed in writing, in addition to the rights and remedies governing transactions in goods in the Uniform Commercial Code, the Purchasing Agent may, when the interests of the Company so require, terminate this purchase order in whole or in part, for the convenience of the Company. The Purchasing Agent shall give written notice of the termination to the Vendor specifying the part of the purchase order terminated and when termination becomes effective. Upon receipt of the notice of termination, the Vendor shall incur no further obligations except to the extent necessary to mitigate costs of performance. In the case of services or specially manufactured goods, the Company shall pay reasonable settlement expenses, the contract price or rate for supplies and services delivered and accepted, the reasonable costs of performance on unaccepted supplies and services, and a reasonable profit for that unaccepted work, in accordance with the generally accepted accounting principles. In the case of existing goods, the Company shall pay reasonable settlement expenses, the contract price for goods delivered and accepted, reasonable costs incurred in preparation for delivery of the undelivered goods, and a reasonable profit for that preparatory work. The amount of the termination liability under this paragraph shall not exceed the amount of the purchase order price plus a reasonable cost for settlement expenses. The Vendor agrees to submit a termination proposal as well as reasonable supporting documentation, cost and pricing data upon request of the Purchasing Agent.
Purchase Order Approval. This purchase order shall not be deemed valid unless it is executed by the Purchasing Agent for the Company. The Company shall have no responsibility or liability for products or services delivered or performed prior to proper execution hereof.
Flow Down Provisions. Vendor acknowledges that this Agreement may be a subcontract under an agreement between IOS® and the United States Government, and agrees to any-flow down provisions of that contract; a copy of which will be provided by IOS® to Vendor, upon request, to the extent necessary for Vendor to be advised of the flow-down provisions.
Fund Availability; Federal Funds Contingency. Financial obligations of the Company are contingent upon funds for that purpose being appropriated, budgeted and otherwise made available. If this purchase order is funded in whole or in part with federal funds, this purchase order is subject to and contingent upon the continuing availability of federal funds for the purposes hereof. If this purchase order contemplates the purchase of goods to be delivered in a single installment, the Company represents that it has set aside sufficient funds to make payment under this purchase order in accordance with its terms.
Choice of Law. This purchase order is made in the State of California. The laws of the State of California shall govern in connection with the formation, performance and the legal enforcement of this purchase order. Unless otherwise specified in the solicitation of this order, venue for any judicial action arising out of or in connection with this purchase order shall be in the Superior Court in the County of Los Angeles. Vendor shall exhaust administrative remedies set forth in California law prior to commencing any judicial action against the Company.
Uniform Commercial Code. All references in this purchase order to the Uniform Commercial Code shall mean the Uniform Commercial Code as adopted by the State of California.
Non-discrimination. The Vendor agrees to comply with the letter and spirit of all applicable state and federal laws respecting discrimination and unfair employment practices. Ownership Of Intellectual Property. (a) Technical Work Product. All technical work product, including, but not limited to, ideas, information, data, documents, drawings, software, software documentation, designs, specifications and processes produced by or for Vendor, either alone or with others, in the course of or as a result of any work performed by or for Vendor which is covered by this contract using funds paid by Company under this contract will be the exclusive property of Company and be delivered to Company promptly upon request. (b) Inventions and Patents. All inventions conceived, developed, or first reduced to practice by or for Vendor, either alone or with others, in the course of or as a result of any work performed by or for Vendor which is covered by this contract using funds paid by Company under this contract, and any patents based on any such inventions (both domestic and foreign), will be the exclusive property of Company. Vendor will (i) promptly disclose all such inventions to Company in written detail and (ii) execute all papers, cooperate with Company and perform all acts necessary or appropriate in connection with the filing, prosecution, maintenance or assignment of related patents or patent applications on behalf of Company.
Confidential, Proprietary And Trade Secret Information And Materials. Company and Vendor shall each keep confidential and protect from unauthorized use and disclosure all (a) confidential, proprietary, and/or trade secret information; (b) tangible items containing, conveying or embodying such information; and (c) tooling identified as being subject to this article and obtained, directly or indirectly, from the other in connection with this contract or other agreement referencing this contract (collectively referred to as a “Proprietary Information and Materials”). Company and Vendor shall each use Proprietary Information and Materials of the other only in the performance of and for the purpose of this contract and/or any other agreement referencing this contract. However, despite any other obligations or restrictions imposed by this article, Company shall have the right to use, disclose and reproduce Vendor’s Proprietary Information and Materials, and make derivative works thereof, for the purposes of testing, certification, use, sale or support of any product delivered under this contract or any other agreement referencing this contract. Any such use, disclosure, reproduction or derivative work by Company shall, whenever appropriate, include a restrictive legend suitable to the particular circumstances. The restrictions on disclosure or use of Proprietary Information and Materials by Vendor shall apply to all materials derived by Vendor or others from Company’s Proprietary Information and Materials. Upon Company’s request at any time, and in any event upon the completion, termination or cancellation of this contract, Vendor shall return to Company all of Company’s Proprietary Information and Materials and all materials derived therefrom, unless specifically directed otherwise in writing by Company. Vendor shall not, without the prior written authorization of Company, sell or otherwise dispose of (as scrap or otherwise) any parts or other materials containing, conveying, embodying or made in accordance with or by reference to any Proprietary Information and Materials of Company. Prior to disposing of such parts or other materials as scrap, Vendor shall render them unusable. Company shall have the right to audit Vendor’s compliance with this article. Vendor may disclose Proprietary Information and Materials of Company to its subcontractors as required for the performance of this contract, provided that each such subcontractor first agrees in writing to the same obligations imposed upon Vendor under this article relating to Proprietary Information and Material. Vendor shall be liable to Company for any breach of such obligation by such subcontractor. The provisions of this article are effective in lieu of any restrictive legends or notices applied to Proprietary Information and Materials. The provisions of this article shall survive the performance, completion, termination or cancellation of this contract.