Seller agrees to provide the Goods or Services in accordance with the applicable purchase and with these Terms and Conditions ("Agreement"). Upon acceptance of a purchase order, shipment of Goods or Services, or services rendered, Seller shall be bound by the provisions of this Agreement, including all provisions set forth, unless Seller objects to such terms in writing prior to shipping Goods or Services. This Agreement may not be added to, modified, superseded or otherwise altered, except by writing signed by an authorized CMC representative.
Any of the following acts by Seller shall constitute acceptance of this order: signing and returning a copy of the order; delivery of any of the Goods or Services ordered; or returning Seller's own form of acknowledgment. Any additional or different term or condition on Seller's acknowledgment form, or otherwise communicated by Seller in accepting this order, shall be deemed to be a material alteration of this order and is hereby objected to by Buyer. Any such term or condition shall be totally inapplicable to this order unless specifically agreed to in writing signed by an authorized representative of CMC.
CMC hereby reserves the right to reschedule any delivery or cancel any purchase order issued at any time prior to shipment of the Goods or Services. CMC shall not be subject to any charges or other fees as a result of such cancellation, or any restocking fees or charges for excess inventories or materials built or purchased by Seller unless approved in writing by an authorized CMC representative.
Delivery of Goods or Services shall be made pursuant to the applicable purchase order. In the event Seller fails to deliver the Goods or Services within the time specified, CMC may, at its option, decline to accept the Goods or Services and terminate the Agreement.
Seller shall package all items in suitable containers to permit safe transportation and handling. CMC's purchase order number and part number must appear on all shipping containers, packing sheets, delivery tickets and bills of lading. Country of Origin, applicable specifications, certifications, and compliance to standards shall be clearly marked on the smallest unit of measure.
Risk of Loss
Title to the Goods or Services shipped under this Purchase Order shall pass to CMC in accordance with the shipping terms specified on the face of the Purchase Order. In the event shipping instructions are not provided, the applicable shipping terms shall be FOB, Origin, Freight Collect, using CMC specified carriers.
CMC shall pay Seller the amount agreed upon and specified in the applicable purchase order. Payment shall not constitute acceptance. Seller shall invoice CMC for all Goods or Services delivered within ninety (90) days of delivery and must reference the applicable purchase order. CMC reserves the right to refuse all incorrect invoices. Unless otherwise specified on the face of a purchase order, CMC shall pay the invoiced amount within thirty (30) days after receipt of a correct invoice.
Seller warrants that all Goods or Services provided will be new and not used or refurbished. Seller warrants that all Goods or Services delivered shall be free from defects in materials and workmanship and shall conform to all applicable specifications. Seller shall furnish to CMC Seller's standard warranty and service guaranty applicable to the Goods or Services. If CMC identifies a warranty problem with the Goods or Services during the warranty period, CMC will promptly notify Seller of such problems and will return the Goods or Services to Seller, at Seller's expense. Seller shall, at CMC's option, either repair or replace such Goods or Services, or credit CMC's account for the same. Replacement and repaired Goods or Services shall be warranted for the remainder of the warranty period.
CMC shall have a reasonable time after receipt of Goods or Services and before payment to inspect them for conformity. Goods or Services received prior to inspection shall not be deemed accepted until CMC has run an adequate test to determine whether the Goods or Services conform to the applicable specifications. Use of a portion of the Goods or Services for the purpose of testing shall not constitute an acceptance of the Goods or Services. If the Goods or Services tendered do not wholly conform to the provisions hereof, CMC shall have the right to reject such Goods or Services. Nonconforming Goods or Services will be returned to Seller freight collect and risk of loss will pass to Seller upon CMC's delivery to the carrier.
CMC will honor all restocking fees deemed resonable and sign Non Cancelable and Non Returnable agreements when presented prior to order acceptance by supplier. Any action to access or enforce these conditions after order acceptance will be deemed as an unauthorized alteration of this agreement and are subject to the terms in the Acceptance clause of this agreement.
Seller is an independent contractor for all purposes, without express or implied authority to bind CMC by contract or otherwise.
Taxes and Records
The prices stated in the purchase order include all applicable taxes and duties, except state and local sales and use taxes. Such sales and use taxes shall be separately itemized in Seller's invoice
Seller shall be solely responsible for maintaining adequate health, auto, workers' compensation, unemployment compensation, disability, liability, and other insurance, as is required by law or as is the common practice in Seller's trades or businesses. Upon request, Seller shall provide CMC with certificates of insurance or evidence of coverage before commencing performance under this Agreement.
Seller agrees at its expense to indemnify, defend, and hold harmless Buyer, its directors, officers, employees, affiliates, subsidiaries, agents, customers and end users from any and all loss, claims and liability, including, without limitation, reasonable legal fees and costs, for death, injury or disability of any person or damage to or destruction of property (including, without limitation, the loss of use of any property or the presence of hazardous substances at any property) caused by or resulting from the acts or omissions of Seller, its agents, suppliers or employees in connection with the performance of this purchase order, including, without limitation, any claim by a third party against CMC alleging that the Goods or Services, or any other products or processes provided under this Agreement, 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.
Seller will acquire knowledge of CMC confidential information in connection with its relationship with CMC and agrees to keep such information in confidence during and following the termination or expiration of this Agreement. Seller agrees to limit its internal distribution of CMC confidential information to Seller's Assistants who have a need to know, and further agrees not to use such information except in the course of providing the Goods or Services in accordance with the applicable Purchase Order and will not use such information for its own benefit or for the benefit of any third party. CMC may require at its sole discretion a signed Non-Disclosure agreement in which the terms and conditions supersede the general and limited scope listed here.
CMC may terminate this Agreement upon notice to Seller if Seller fails to perform or otherwise breaches this Agreement, files a petition in bankruptcy, becomes insolvent, or dissolves. In the event of such termination, CMC shall pay Seller for those conforming Goods or Services delivered to CMC through the date of termination, less appropriate offsets. CMC may terminate this Agreement for any other reason with sufficient notice to Seller. Seller shall cease to provide Goods or Services under this Agreement on the date of termination specified in such notice. In the event of such termination, CMC shall be liable to Seller only for those conforming Goods or Services delivered to CMC through the date of termination, less appropriate offsets.
CMC shall not be liable for any failure to perform including failure to take delivery of the Goods or Services as provided caused by circumstances beyond its control which make such performance commercially impractical including, but not limited to, acts of God, fire, flood, acts of war, government action and accident. In the event CMC is so excused, either party may terminate the Agreement and CMC shall at its expense and risk, return any Goods or Services received to the place of shipment.
If any provision of this Agreement 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 thereby.
Limitation of Liability
In no event shall CMC be liable for any incidental, indirect, special, consequential or punitive damages, Whether or not CMC was advised or could foresee the possibility of such damage.
Seller may not assign this Agreement or any of its rights or obligations under this Agreement, without the prior written consent of CMC. Any assignment or transfer without such written consent shall be null and void. This Agreement shall inure to the benefit of, and be binding upon, the successors and assigns of CMC without restriction. A waiver of any default hereunder or of any term or condition of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or any other term or condition.
This Agreement shall be construed in accordance with, and disputes shall be governed by, the laws of the State of California, excluding its conflict of law rules. The state and federal courts in Orange County, California shall have jurisdiction and venue over all controversies arising out of, or relating to, this Agreement.
This Agreement is the complete, final and exclusive statement of the terms of the agreement between the parties and supersedes any and all other prior and contemporaneous negotiations and agreements, whether oral or written, between them relating to the subject matter hereof. The terms and conditions of this Agreement shall prevail notwithstanding any variance with the terms and conditions of any acknowledgment or other document submitted by Seller.
Last Updated 10/07
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