1. DEFINITIONS:
Buyer means PLX Inc. as specified in the Purchase Order (as defined below).
Confidential Information shall have the meaning as specified in clause 14 below.
Delivery Date means the date when the goods are delivered to PLX pursuant to clause 6 below.
Purchase Order means an order for goods and/or services to be provided by the Supplier and the corresponding fees to be paid by PLX, issued by PLX subject to these terms and conditions.
Supplier means the company as specified in the Purchase Order.
Warranty Period means the period of twelve months from the later of either the Delivery Date or acceptance.
2. APPLICATION OF TERMS:
2.1 Supplier agrees to deliver goods and/or perform the services as described in the Purchase Order and in accordance with the terms and conditions stated in this Purchase Order.
2.2 Additional or different terms in the Supplier’s acknowledgement or any other Supplier documents are hereby rejected.
2.3 This Purchase Order is non-exclusive. PLX is free to engage others to provide goods the same as or similar to Supplier's.
3. CANCELLATION OR CHANGE OF PURCHASE ORDERS:
PLX reserves the right to cancel the Purchase Order at any time prior to shipment of the goods and shall be subject to a maximum charge of ten (10%) percent of the total charges set forth in the Purchase Order. This cancellation fee shall only be available to the supplier in the event that the supplier has incurred costs, and PLX does not inform the supplier within 5 working days of the order being placed. Where Supplier is unable to deliver the Product in a timely manner as set forth in the Purchase Order, PLX retains the right to cancel the Purchase Order without penalty. PLX reserves the right to cancel the Purchase Order where the quality of the Product fails to meet the reasonable standards expected by PLX at the time the Purchase Order was submitted. PLX may by written communication cancel or make changes to any Purchase Order subject to an equitable adjustment in the price, delivery schedule, or both, where appropriate.
4. PRICING
4.1 Supplier warrants that the prices for the goods sold and/or services performed hereunder are not less favorable than those currently extended to any other customer for the same or similar products similar quantities and/or services. In the event Supplier reduces its prices for such goods and/or services prior to accepting PLX’s Purchase Order or during the term of performance of any Purchase Order for services, Supplier agrees to reduce the prices hereof accordingly. Supplier warrants that the prices shown in the Purchase Order shall be complete and no additional charges shall be added without PLX’s express written consent. Such additional charges include, but are not limited to, shipping, packaging, labeling, custom duties, taxes, insurance, storage, boxing and crating.
5. PAYMENT TERMS AND INVOICES:
5.1 As full consideration for the delivery of goods and/or performance of the services and the assignment of rights to PLX as provided herein, PLX shall pay Supplier the amount specified in the applicable Purchase Order. Supplier shall submit invoices in compliance with the tax legislation in the local jurisdiction and showing applicable Purchase Order number, description of goods, quantity, unit prices, extended totals, completion date of services (if any), shipping date, product serial numbers and any other information requested by PLX.
5.2 All properly submitted and undisputed invoices will be paid within sixty (60) days of the receipt of the invoice by PLX. Payment of any invoice shall not constitute acceptance of any goods. PLX reserves the right to: (i) make adjustment(s) for errors, shortages, defects in goods or other failure of Supplier to meet any Purchase Order requirements; and (ii) set off any amount owed by PLX to Supplier against any amount owed to Supplier by Supplier.
6. SHIPPING, DELIVERY AND ACCEPTANCE:
6.1 Supplier shall deliver the goods and/or perform the services as specified in the applicable Purchase Order.
6.2 Supplier shall package and ship all goods in accordance with such industry standards as may be applicable to ensure that the goods are received by PLX in good condition and in compliance with the Purchase Order. The applicable Purchase Order number must appear on all shipping containers packing lists delivery tickets and bills of lading. Title and risk of loss shall pass to PLX upon delivery at the destination nominated by PLX or upon final acceptance by PLX whichever is later.
6.3 Where delivery by Supplier is delayed by four (4) weeks or more beyond the date of delivery as set forth in the Purchase Order, PLX reserves the right to: (i) reduce the purchase price as set forth in the Purchase Order by ten (10%) percent as a delay penalty for each four (4) period; or (ii) refuse shipments and/or performance of services made after the date set forth in the Purchase Order. If goods ordered are destroyed prior to the title passing to PLX, or if the delivery of the goods (and/or performance of services) is not completed on time, PLX may, at its option: (a) require delivery of substitute goods of equal quantity and quality; (a) terminate the Purchase Order as to items not yet shipped or services not yet rendered; (c) purchase substitute items or services elsewhere; or (d) direct Supplier to ship by the most expeditious means available, all at Supplier’s risk and expense. Supplier assumes all risk of loss, damage or destruction to any goods rejected by PLX. Time for delivery shall be of the essence.
6.4 Acceptance of deliveries not in conformance with the Purchase Order or the terms of this Agreement shall not be deemed a waiver of PLX’s right to hold Supplier liable for any loss or damage to PLX or modify Supplier’s obligation to make future deliveries in conformance with the terms herein. Shipments which do not conform with the terms of this Agreement may be returned to Supplier and Supplier shall pay for all handling and transportation costs incurred. Supplier shall bear all costs of shipping, transportation and packing unless otherwise agreed to in writing by PLX.
6.5 PLX reserves the right to change the delivery date set forth in the Purchase Order to reasonably advance, and/or delay, the delivery date as it deems necessary, and Supplier agrees to comply with the change without any additional cost or charges.
7. REPRESENTATIONS AND WARRANTIES:
7.1 Supplier hereby represents and warrants that (i) it is authorized to sell the goods and/or performance the services set out in the Purchase Order;(ii) all goods provided and/or services performed will comply with the descriptions and specifications as set out in the Purchase Order; (iii) all goods provided are of genuine and authentic manufacture, new and unused, and will throughout the Warranty Period be free from defects in design, materials, workmanship and manufacture, be of satisfactory quality and fit for the purposes communicated by PLX or if not communicated by PLX fit for the purposes as can be reasonably deemed; and (iv) all services will be performed in a workmanlike and professional manner by employees or subcontractors of Supplier having a level of skill commensurate with the requirements of the agreed upon scope of work and that its performance of services do not and will not infringe any patent, copyright, trademark, trade secret or other proprietary right of any third party.
7.2 The foregoing warranties are in addition to all other warranties, express or implied, and shall survive the delivery, performance, inspection, acceptance or payment by PLX. PLX’s inspection, test, approval, acceptance or use of any goods will not relieve Supplier of any warranties specified herein or otherwise applicable. If PLX identifies a warranty problem during the Warranty Period, PLX will notify Supplier and may, at its sole option, and at Supplier’s expense: (i) require Supplier to correct any defect or nonconformance; (ii) return deficient or nonconforming goods to Supplier for a full refund of amounts paid or those deficient or non-conforming goods; (iii) correct the deficient or nonconforming goods itself, or (iv) re-perform the services for any part thereof which fails to conform to PLX’s specifications. Replacement or repaired goods shall be warranted for the remainder of the warranty period or six (6) months, whichever is longer.
8. TERMINATION:
8.1 PLX may terminate any Purchase Order upon written notice to Supplier if Supplier: (i) fails to perform or otherwise materially breaches any term of this Purchase Order and such failure or breach is not remedied within seven (7) days of PLX’s notice to do so; (ii) files a petition in bankruptcy, becomes insolvent, or dissolves;(iii) breaches any confidentiality obligations; or (iii) assigns or attempts to assign this Purchase Order in whole or in part to a third party without prior written consent of PLX;
8.2 PLX may terminate any Purchase Order in whole or in part at its discretion and without any liability to Supplier for damages or loss (whether direct or indirect) upon thirty (30) days written notice to Supplier, except for payment of the price of the goods supplied and services performed and accepted by PLX prior to the date of termination specified in such notice. Supplier shall cease to provide goods under the applicable Purchase Order on the date of termination specified in such notice.
8.3 Upon the termination of the Purchase Order for any reason, Supplier will promptly deliver at the expense of Supplier and in accordance with PLX's instructions all work product (whether in process or completed) created by Supplier pursuant to such Purchase Order prior to the date of termination and all PLX’s Confidential Information.
8.4 The termination of any Purchase Order shall not affect any obligation of the parties incurred before the termination date. Notwithstanding the termination or expiration of the Purchase Order, the terms of this Agreement which by their context, intent and meaning are intended to survive the termination or expiration of the Purchase Order shall survive any termination or expiration of the Purchase Order.
9. INDEPENDENT CONTRACTOR SERVICES:
The parties agree that Supplier is an independent contractor for all purposes, without express or implied authority to bind PLX by contract or otherwise. Supplier is responsible for all costs and expenses incident to performing its obligations under any Purchase Order and shall provide its own supplies and equipment.
10. OWNERSHIP:
10.1 All work product and goods (including without limitation all documentation, user manuals, training materials, guides, specifications and other information relating thereto whether in writing, electronic format or otherwise created or delivered by Supplier pursuant to a Purchase Order) shall be and remain the sole and exclusive property of PLX. Supplier hereby agrees to irrevocably assign and transfer to PLX and does hereby assign and transfer to PLX all of its worldwide rights, title and interest in and to the work product and/or the goods including all associated intellectual property rights. All tools and equipment supplied by PLX to Supplier shall remain the sole property of PLX.
10.2 Supplier warrants that it has all right and authority necessary to confer clear title and ownership to the PLX in accordance with this Purchase Order. Supplier irrevocably agrees not to assert against PLX, any affiliate or holding or parent company of the PLX, or its direct or indirect customers, assignees or licensees any claim of any intellectual property rights of Supplier affecting the work product and/or goods and/or the services.
11. INDEMNITY:
11.1 Supplier shall indemnify, defend, and hold harmless PLX and PLX’s officers, directors, employees, successors, assigns, agents, and customers from and against any, and all claims, actions, liabilities, damages, losses, costs, and expenses (including legal fees) arising out of or in any way connected with the goods provided and/or the services performed under any Purchase Order including without limitation:
(i) defective workmanship, quality of material or service (ii) any claim by a third party alleging that goods or services, the results of such services, or any other products or processes provided under any Purchase Order infringe a patent, copyright, trademark, trade secret or other proprietary right of a third party, whether such are provided alone or in combination with other products, software or processes; (iii) Supplier’s failure to comply with any applicable law, statute, rule or regulation, including without limitation, related to privacy and publicity; (iv) the negligence or willful misconduct of the Supplier, its agents or employees; (v) death or bodily injury to any person; or (vi) damage or destruction to property, caused by, arising out of, connected or resulting from the goods and/or the acts or omissions of the Supplier, its agents, subcontractors.
11.2 Should PLX’s use, or use by its employees, contractors, subcontractors or customers, of any goods or services purchased from Supplier be threatened by injunction or any legal proceeding, Supplier shall, at is sole cost and expense, either: (i) substitute fully equivalent non-infringing goods; (ii)modify such goods so that they no longer infringe but remain fully equivalent in functionality; (iii)obtain for PLX, its employees, contractors, subcontractors or customers the right to continue using such goods; or (iv) if none of the foregoing is possible, refund all amounts paid for the infringing goods.
12. FORCE MAJEURE:
In the event that either party is unable to perform any of its obligations under the Purchase Order, or to enjoy any of its benefits because of (or if loss of the goods is caused by) natural disaster, actions or decrees of governmental bodies or communications line failure not the fault of, or that could not reasonably have been prevented or avoided by, the affected party (hereinafter referred to as a “Force Majeure Event” or “Event”), the party who has been so affected shall immediately give notice to the other party and shall do everything possible to resume performance. Upon receipt of such notice, all obligations under the Purchase Order shall be immediately suspended. If the period of nonperformance exceeds fifteen (15) days from the receipt of notice of the Force Majeure Event, the Party whose ability to perform has not been so affected may give written notice to terminate the Purchase Order. Except as provided herein, delays in delivery due to Force Majeure Events shall automatically extend the delivery date for a period equal to the duration of such Events; any warranty period affected by a Force Majeure Event shall likewise be extended for a period equal to the duration of such Event.
13. CONFIDENTIALITY:
Unless expressly provided herein, Supplier agrees not to use, copy, alter or directly or indirectly disclose any of PLX’s proprietary or confidential information whether written or verbal (“Confidential Information”), except in the course of performing its obligations under this Purchase Order. Additionally, Supplier agrees to limit its distribution of Confidential Information to Supplier's employees who have a need to know, and to take reasonable steps to ensure that the dissemination is limited. In no event will Supplier use less than the degree of care and means that it uses to protect its own information of like kind, but in any event not less than reasonable care to prevent the unauthorized use of Confidential Information.
14. LIMITATION OF LIABILITY:
14.1 In no event shall PLX be liable to Supplier for anticipated or actual lost profits, loss of business, loss of savings, loss of data or for any indirect, special, incidental or consequential loss or damage however arising (in contract tort or otherwise), even if PLX has been advised of the possibility of such damage.
14.2 PLX's liability in contract tort (including negligence) or otherwise arising under this Purchase Order shall not exceed the amount equal to the fees paid for the good that gives rise to the claim.
14.3 Nothing in this Purchase Order shall exclude the parties’ liability for death or personal injury caused by their negligence.
15. COMPLIANCE WITH LAWS:
15.1 General: Supplier shall comply fully with all applicable laws and regulations in the performance of this Purchase Order including without limitation all applicable import or export laws and regulations. Supplier will otherwise comply in any and all respects with all applicable laws, ordinances, rules and regulations and other legal requirements that apply to this Agreement.
15.2 Customs: Upon PLX's request, Supplier will promptly provide PLX with a statement of origin for all goods.
15.3 Supplier will at all times refrain from engaging in any illegal, unfair or deceptive trade practices or unethical business practices. Supplier shall at its expense obtain any and all permits, licenses, authorizations, and/or certificates that may be required in any jurisdiction or by any regulatory or administrative agency in connection with its activities hereunder.
16. GENERAL:
16.1 If any provision of this Purchase Order shall be deemed to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired hereby.
16.2 Any party’s delay or failure to exercise any of its rights under the Purchase Order and/or the terms set out herein shall not be deemed or construed to operate as that party’s waiver of any such rights.
16.3 All notices, and other communications hereunder shall be in writing, and shall be addressed to Supplier’s address for payment or to an authorized PLX representative, and shall be considered given when (a) delivered personally, (b) sent by confirmed facsimile, (c) sent by commercial overnight courier with written verification receipt, or (d) three (3) days after having been sent, postage prepaid, by first class or certified mail.
16.4 The Purchase Order and the terms set out herein contains the whole agreement between the parties and supersedes all previous written or oral agreements relating to the subject matter.
16.5 The parties acknowledge and agree that: (a) they have not been induced to enter into this Purchase Order by any representation warranty or other assurance not expressly incorporated into it; and (b) in connection with this Purchase Order their only rights and remedies in relation to any representation warranty or other assurance are for breach of this Purchase Order and that all other rights and remedies are excluded.
16.6 The provisions of clause 16.4 and 16.5 shall not affect the parties’ rights or remedies in relation to any fraud or fraudulent misrepresentation.
16.7 This Purchase Order does not and is not intended to confer any benefit on nor create any right exercisable or enforceable by any third party.
16.8 This Purchase Order may not be varied, modified, altered, or amended except in writing, signed by both parties. The terms and conditions of this Purchase Order shall prevail notwithstanding any variance with the terms and conditions of any acknowledgment or other document submitted by Supplier.
16.9 During the term of the Purchase Order, Supplier will, and will be responsible for ensuring that its employees, servants, and agents will, whenever on the PLX’s premises, obey all reasonable instructions and directions issued by PLX.
16.10 Supplier shall keep complete and accurate records of all costs of performance under the Purchase Order, which shall be subject to inspection and audit by PLX in the event of termination or equitable adjustment or with respect to any Purchase Order for which the price is based on time and cost of materials.
16.11 Supplier shall not assign or subcontract its obligations under the Purchase Order, in whole or in part, or any interest therein, without PLX’s written consent. If PLX consents to any assignment or subcontract, Supplier shall remain liable and responsible for all of its obligations hereunder, and shall guarantee performance by its assignee or subcontractor.
17. GOVERNING LAW AND JURISDICTION:
The Purchase Order shall be governed by the laws of the State of New York, County of Suffolk. Any dispute or cause of action which arises in connection with the Purchase Order shall be brought before a court of competent jurisdiction in the State of New York, County of Suffolk.
