TERMS AND CONDITIONS
A. OFFER AND ACCEPTANCE: This Purchase Order (hereinafter referred to as the “Order”) is considered to be an offer by BREG, the buyer, to enter into a contract to purchase the items referenced on the face of this document, (hereinafter referred to as the “Specified Items”) from Seller. The contract is considered accepted upon Sellers receipt if no notice of non-acceptance is received within five working days or when performance is commenced by Seller. Upon acceptance, this Order becomes a binding contract for the purchase of the Specified Items, at the price indicated, for delivery to BREG, on the specified date and subject to the terms contained herein.
B. PRICES AND PACKING: Unless otherwise specified, the prices stated on the front of this Order include all charges for packing, hauling, storage, and transportation to point of delivery. Seller guarantees that the prices quoted are no greater than pricing currently charged any other buyer for similar quantities of goods or services. Any price reduction extended to others by Seller prior to delivery shall also be extended to BREG. In the event Seller breaches this guarantee, the prices of the Specified Items shall be reduced accordingly retroactively to the date of the breach.
C. QUANTITIES AND DELIVERIES: Seller will deliver quantities within 10% of specified quantities. Shipments of excess of 10% may either be rejected with the Seller bearing the cost of the return or accepted at BREG’s discretion and at negotiated reduction in cost for overage.
D. FAILURE TO DELIVER: Penalties for failure of Seller to deliver on time may include (but not limited to) the right to cancel without penalty, the right to recover expenses for purchasing of Specified Items from alternate sources, administrative costs and/or the return of any deposits paid to the Seller. The Seller may be held liable for any documented losses incurred by BREG as a result of lost sales resulting from Sellers failure to perform to the contracted terms of delivery. It is the sole responsibility of the Seller to notify BREG of delayed deliveries as soon as possible. Whenever an actual or potential labor dispute is delaying or threatens to delay the timely performance of this contract, Seller shall immediately give written notice thereof.
E. INSPECTION AND TESTING: Payment for any Specified Items pursuant to this Order shall not be deemed acceptance of the Specified Items. Specified Items purchased pursuant to this Order are subject to BREG’s reasonable inspection, testing and approval at BREG’s destination. BREG reserves the right to reject and refuse acceptance of Specified Items not in accordance with this Order or Seller’s representations or warranties, expressed or implied. BREG will charge Seller for the cost of inspecting rejected Items and such Items will be returned to Seller, or held by BREG, at Seller’s risk and expense. In the event BREG receives Specified Items whose defects or non-conformity is not apparent on examination, BREG reserves the right to require replacement, as well as payment of damages. Nothing in this Order shall relieve Seller from the obligations of testing, inspection and quality control. In the event of an alleged breach, BREG may retain the Specified Items in its possession to preserve the evidence and damages may be deducted from any part of the price still due on the contract.
F. TITLE AND RISK OF LOSS: Risk of Loss or damage to the Specified Items shall be on Seller until the Specified Items have been delivered to and accepted by BREG. All Specified Items will be received by BREG subject to its right of inspection and rejection. BREG shall be allowed a reasonable period of time to inspect.
G. COMPLIANCE WITH LAWS: In performing this contract, Seller agrees to be bound by all applicable Federal, State, Regional, County and Local laws, ordinances, regulations, orders, rules and guidelines. In addition to and without limiting the above obligation, Seller expressly warrants that no Specified Item sold pursuant to this Order is adulterated or misbranded within the meaning of the Federal Food, Drug, and Cosmetic Act (hereinafter the “FDCA”) as amended (21U.S.C section 201 et seq.), or within the meaning of any applicable state or municipal law in which the definitions of “adulteration” and “misbranding” are substantially identical with those contained in the FDCA; Seller warrants that the specified Items are not goods which may not under the provisions of the FDCA be introduced into interstate commerce, or which may not under substantially similar provisions of any state or municipal law be introduced into commerce; and Seller warrants that the Specified Items are in compliance with Sections 510, 513, 514, 515, 518 and 519 of the FDCA. Supplier certifies that it complies with all applicable laws, including eradication of forced, bonded, indentured, involuntary convict or compulsory labor or illegal child labor in its facilities as well as certifying that its supply chain and materials incorporated into its products comply with the laws prohibiting slavery and human trafficking. Supplier further agrees that it has adopted sound human rights practices, it treats its workers fairly and with dignity and respect, provides a safe and healthy work environment for their workers, conducts business in compliance with applicable environmental and employment laws, maintains accurate books and records as it relates to any labor or services for BREG, refrains from corrupt practices and complies with all other applicable laws and regulations. Supplier understands and agrees that these terms are material to the contract with BREG and as such Supplier agrees that it may be audited by BREG or its designated auditors in an unannounced fashion and that failure to abide by the terms of the Purchase Order may result in immediate termination of contracts or other remedy as BREG deems appropriate and as consistent with applicable law. This contractor and subcontractor 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.
H. WARRANTY: Seller expressly warrants that the Specified Items ordered by BREG pursuant to this contract shall conform to all specifications and appropriate standards; shall be merchantable; shall conform to this Order, to specifications, drawings, and other descriptions referenced in this Order, and to any accepted samples; shall be free from defects in materials and workmanship; shall be free from defects in design except to the extent the Specified Items are manufacturer pursuant to a design supplied by BREG; shall be fit and safe for the intended purposes; shall conform to any description or statements made on the containers or labels or advertisements for such Specified Items or services and that such Specified Items will be properly contained, packaged, marked and labeled; if Seller knows or has reason to know the particular purpose for which BREG intends to use the Specified Items or services, they shall be fit for such particular purpose.
All above warranties and warranties prescribed by law shall extend to BREG, its successors, assigns, customers and to users of the Specified Items and shall run through any expiration date stated on the Specified Items, or, if no expiration date is stated, then for a period of one (1) year after delivery. Claims under these warranties must be made within the applicable period per statute. These warranties shall survive inspection, tests, acceptance and use by BREG.
I. RECALL: Seller shall notify BREG within 24 hours of any recall of Specified Items that were delivered to BREG, providing lot information or other means of identifying such Specified Items. In the event a recall of the Specified Items or other corrective action is necessitated by a defect, a failure to conform to the specifications, applicable laws, or any other reason within Sellers control, Seller shall bear all costs and expenses of such recall or corrective action including without limitation, costs of notifying customers, customer refunds, costs of returning Specified Items, lost profits, and other expenses incurred to meet obligations to third parties.
J. INDEMNIFICATION: Seller shall defend, indemnify and hold BREG, its successors, assigns, officers, directors, employees, agents, customers, and users of the Specified Items harmless with respect to all claims, liability, bodily injury (including death,) damage, loss of use, or any other loss or expenses, including attorneys’ fees, incurred relating to or caused by, or arising from,
- actual or alleged patent, copyright, or trademark, infringement or violation of other proprietary rights, arising out of the purchase, sale, or use of the Items covered by this Order;
- actual or alleged defects in the design, manufacture or material of the Specified Items or services;
- actual or alleged breach of Seller’s Warranties or Compliance with Laws as described herein;
- failure of Seller to deliver the Specified Items on a timely basis, including damages and costs to recover;
- the recall of Specified Items;
- Seller’s storage, shipment, alteration, labeling, packaging, etc. which caused the Specified Items to be mislabeled or misbranded within the meaning of the FDCA.
K. INSURANCE: Seller shall, at its sole expense, obtain and keep in force, for three years after the last delivery under this Order, the following insurance covering the Seller and the Seller’s agents, employees, representative and subcontractors:
- Comprehensive or Commercial General Liability in an amount not less than $3 Million each occurrence combined single limit for bodily injury and property damage for: (1) Premises-Operations, (2) Products/Completed Operations Liability, (3) Blanket Contractual Liability, (4) Personal Injury, (5) Independent Contractor’s Protective Liability (if subcontractors are employed to perform portions of the services.) If services are to be performed pursuant to this Order on BREG’s premises, the insurance obligations of Seller shall also include:
- Comprehensive Automobile Liability for owned, hired and non-owned motor vehicles in an amount not less than $3 Million each occurrence combined single limit for bodily injury and property damage;
- Workers’ Compensation in accordance with applicable statutory requirements and Employer’s Liability in an amount of not less than $1 Million; (d) Fidelity Bond in an amount not less than $1 Million, with an acceptable surety company, for all of the Seller’s employees.
- Seller shall furnish BREG with certificates of insurance evidencing the required insurance, shall name BREG as an additional insured in regards to paragraph (a) and shall give at least thirty (30) days written notice to BREG before cancellation, nonrenewal or a material change in coverage.
L. PROPRIETARY INFORMATION: Seller shall consider all information furnished by BREG to be confidential and shall not disclose any such information to any other person, or use such information itself for any purpose other than performing this contract, unless written permission is obtained by BREG.
M. TERMINATION OF ORDER: BREG may terminate this Order:
- In whole or in part, without liability to BREG if BREG anticipates Seller’s breach of this Order and Seller does not provide adequate assurances of its performance within ten (10) days of Buyer’s request; if deliveries are not made at the time or in the quantities specified; or in the event of a breach or failure by Seller to meet other terms of this Order which remains uncured within ten (10) days following BREG’s request. This right shall be in addition to any other remedies provided BREG by law; or
- In whole or in part, at any time for its convenience by notice to Seller in writing. Upon receipt of such notice, Seller shall, to the extent specified in such notice, stop work under this Order (by itself and permitted subcontractors). Cancellations issued prior to sixty (60) days from delivery will be accepted by the Seller at no cost or penalty to BREG. For cancellations issued sixty (60) days or less from delivery, Seller shall be paid a percentage of the total Order price corresponding to the percentage of work completed prior to BREG’S notice, plus any reasonable expenses incurred by Seller in terminating orders and work in progress. Seller must submit a claim to BREG within thirty (30) days of the termination date and shall be subject to audit via Seller’s books, records, and papers upon request by BREG.
N. SETOFF: All claims for money due or to become due from BREG shall be subject to deduction or setoff by BREG by reason of any counterclaim arising out of this or any other transaction with Seller.
O. LIMIT ON BREG’S LIABILITY: In no event shall BREG be liable for anticipated profits or for incidental or consequential damages. BREG’s liability on any claim for loss or damage arising out of, in connection with or resulting from this contract, the performance or breach thereof, shall not exceed the price of the Specified Items.
P. CONTROLLING LAW / CHOICE OF FORUM: This contract and performance pursuant to it shall be controlled, construed and enforced in accordance with the laws of the State of California. All disputes which arise in connection with, or related to, this contract or any claimed breach thereof, shall be resolved, if not settled, by litigation only in the State of California, San Diego County, or the Federal Court having territorial jurisdiction over San Diego County and subject matter jurisdiction over the dispute. Seller waives any right it may have had to insist that litigation to which it is a party be in any venue other than the above courts, and covenants not to sue BREG anywhere other than the above courts with respect to any Contract-related dispute.
Q. SEVERABILITY / WAIVER: If a court of competent jurisdiction finds any provision of this contract void, invalid or unenforceable, such provision shall not affect the remainder of this contract, which shall remain in full force and effect and to be read and construed as if the void, invalid or unenforceable provision were originally deleted. No term or provision herein shall be deemed waived and no breach excused unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether expressed or implied, shall not constitute a consent to, or waiver of, or excuse for any other different or subsequent breach.
R. ASSIGNMENT; SUBCONTRACTING: Seller shall not assign this Order or subcontract any part of the performance of it without BREG’s written consent. If any goods are made to BREG’s design, all subcontracting by Seller shall be subject to BREG’s prior written consent. Seller will not change materials or methods of production without prior written consent of BREG.
S. ENTIRE AGREEMENT: This Order constitutes the entire contract between Seller and BREG unless otherwise negotiated and stated in writing by an authorized agent of BREG. No modifications, additional terms and/or conditions set by the Seller will be recognized if they do not conform to this contract.
November 12, 2015