TENERE PURCHASE ORDER STANDARD TERMS AND CONDITIONS
Tenere, Inc. is referred to as "Buyer", the Seller, identified on the face of this Purchase Order (the “Order”) is referred to as "Seller". These Purchase Order Standard Terms and Conditions (“Terms”) are attached to and provide and govern the terms and conditions applicable to the Buyer and Seller related to the goods and materials (collectively the “Goods”) identified on the Order.
1. DELIVERY AND ACCEPTANCE
The time of delivery stated on the Order is of the essence. The date specified for delivery on the Order is the required delivery date that the Seller must have the Goods properly delivered and in accordance with these Terms and all specifications attached to, provided in or referenced in the Order and in no way limiting the foregoing, in all circumstances complying with no less than industry standards for quality, design, performance and workmanship (collectively the “Specifications”) to the Buyer's facility identified on the Order, unless specifically noted otherwise on the Order. Buyer reserves the right to refuse any Goods and to cancel all or any part of the Order if (i) Seller fails to properly or timely deliver all or any part of any Goods in full compliance with the Specifications and these Terms or (ii) Seller fails to properly and timely perform all or any part of any services identified on the Order or that are required or necessary to ensure Buyer’s ability to fully utilize the Goods, in accordance with these Terms. If Seller's breaches subpart (i) or (ii), Buyer may require Seller to do one or more of any of the following (a) promptly ship (using expedited delivery) replacement Goods and/or provide replacement services at Seller’s sole cost, (b) promptly refund to Buyer any amounts that Buyer had prepaid for the Goods and/or services, (c) promptly pay to Buyer any extra amounts that Buyer paid to a third party to provide the replacement Goods and/or services above the cost for such identified on the Order, (d) pay damages to Buyer equal to the complete cost and any loss that Buyer incurred based on Sellers breach. Notwithstanding the prior sentence, Buyer’s rights in the prior sentence shall be in addition to any other rights and remedies available to the Buyer. Buyer’s receipt or acceptance of any part of the Goods and/or services shall not bind Buyer to accept future Goods shipments or services nor deprive Buyer of the right to require Seller to retrieve (at Seller’s sole cost) any Goods already accepted and/or paid for and shall not be deemed to be a waiver of Buyer's rights to cancel or require Seller to retrieve (at Seller’s sole cost) all or any Goods because of Seller’s failure to conform to the Order and/or these Terms, or prevent or restrict in any manner Buyer’s right to make a claim for damages, including manufacturing costs, loss of profits, injury to reputation or other special, consequential and incidental damages. Such rights shall be in addition to any other remedies provided hereunder or provided by law, equity or otherwise. Delivery shall not be deemed to be complete until all Goods identified in the Order have been actually received and accepted by Buyer.
2. ACCEPT / MODIFICATION OF TERMS
This Order may be accepted only by Seller's agreement to all of the terms and conditions of the Order and these Terms. Acceptance by the Seller of the Order and these Terms shall be deemed to have occurred upon the earlier of Seller signing the Order or performing any part, and any such acceptance shall constitute an unqualified agreement to these Terms, unless otherwise modified in writing by the parties. Acceptance of this Order is limited to the Terms. Any additions, deletions or differences in any terms proposed by Seller are objected to and hereby rejected by Buyer, unless Buyer agrees otherwise in a writing signed by an Officer of Buyer. No additional or different terms and conditions proposed by the Seller in accepting this Order shall be binding upon Buyer unless accepted in a writing signed by an Officer of Buyer. No waiver of any of the provisions herein shall be valid unless made in a writing that is executed by an Officer of Buyer.
3. PACKING AND SHIPPING
The Goods must be properly packed, prepared, labeled for shipment, transported and delivered in compliance with the Specifications, including any specific transportation specifications of Buyer identified on the Order or provided to Seller, and in all cases must comply with all applicable laws and regulations. All charges for packing, preparing, crating, labeling and transportation are included in the price of the Goods set forth on the Order and will be paid by Seller, except as otherwise specifically stated on the Order. A packing list shall accompany each box or package shipment showing the Order number, a description of the Goods and any other information requested by Buyer. Buyer shall not be obligated to accept or pay for any Goods shipped in excess of the ordered quantity and any excess or advance shipments may be returned to Seller at Seller's expense. In the event that specific packaging requirements are not identified by the Buyer, Seller shall ensure that all Goods are properly packaged to ensure they are completely protected and secured through all transportation until Seller makes final delivery to Buyer.
Seller shall invoice to receive payments. Invoices shall be emailed to AccountsPayable@Tenere.com and contain the following information: Order number, description of the Goods and quantity of the Goods, prices for each Good/part, packing slip, bill of lading number and any other information reasonably requested by Buyer. Invoices submitted hereunder will be paid by Buyer within sixty (60) days after receipt of the invoice or acceptance of delivered Goods by the Buyer, whichever occurs later, unless otherwise specified on the face of this Order. Invoices shall be submitted to Buyer within ten (10) days of delivery date. Failure to invoice within the given period will jeopardize payment of the invoice. Any adjustment in Seller's invoices due to Seller’s failure to comply with the requirements of the Order and Terms may be made by Buyer before payment. Payment shall not constitute final acceptance. Buyer may offset against any payment hereunder any amount owed to Buyer by Seller.
Seller accepts and acknowledges that Buyer will be providing Seller with information, data, know-how and materials (hereinafter collectively “Confidential Information") that Seller must protect from authorized disclosure using no less than industry standard processes and security and only use in accordance with the permitted uses identified herein. Confidential Information shall also include all information, data, know-how and materials related to Buyer’s and its affiliates technology, designs, customers, vendors, strategy, employees, financial results, computer programs, products, marketing and business plans and any other information or data that should reasonably be assumed by the Seller to be confidential. Confidential Information will not deemed to include information which (a) Seller can show was in Seller’s possession before receipt from Buyer; (b) is or becomes a matter of public knowledge through no fault of Seller; or (c) is rightfully received by Seller from a third party who Seller was not aware, after reasonable inquiry, that the third party had a duty of confidentially to the Buyer. Seller may use the Confidential Information only for the permitted purpose of performing for the Buyer under the Order and agrees to hold the Confidential Information in confidence and not to disclose it to any third party (other than to its employees or agents who are specifically involved in the performance under the Order) without the prior written consent of the Buyer. At any time, upon request by Buyer, Seller shall promptly return or certify the destruction of all copies of the Confidential Information. To the extent that the Buyer and Seller have a non-disclosure or similar agreement in effect at the time of this Order, Seller accepts that any terms and conditions related to Seller’s confidentiality obligations identified in such agreement shall be in addition to Seller’s obligations identified in this Section 5.
Seller represents and warrants to Buyer:
(1) that the price charged for the Goods and/or services provided pursuant to this Order shall be no higher than Seller's current price to any other customer for the similar quantity of such Goods or services;
(2) that all Goods delivered pursuant hereto will be new, unless otherwise specified, and free from defects in material and workmanship;
(3) that all Goods will conform to all applicable Specifications and that all Goods will be suitable for their intended purpose;
(4) that the Goods and related services covered by this Order will be provided, produced, packaged, labeled and transported in accordance with all applicable laws and regulations;
(5) that it will be prompt, diligent and responsive to any questions or assistance requested by Buyer;
(6) that the Goods and related services and their use by Buyer or its customers will not infringe upon the rights, including intellectual property rights, of any entity or individual; and
(7) that the pricing for any of the Goods identified in any quote or similar document supporting or underlying the Order shall not be increased by the Seller for subsequent Orders that Buyer may choose to submit for the some or all of the same Goods unless the Seller provides the Buyer with at least sixty (60) days advanced written notice of a price increase.
All the representations and warranties of Seller together with any other warranties or guarantees that Seller has provided to Buyer in connection with the Order, if any, shall run to Buyer and Buyer's customers. The foregoing representations and warranties shall survive any inspection or acceptance by Buyer or payment by Buyer.
Seller shall satisfy all inspections, tests, quality management systems and quality assurance requirements that are identified in the Specifications or these Terms or that are appropriate for Seller to perform or provide according to industry standards to ensure that the Goods conform to the requirements of this Order. If requested, the Seller shall also submit to the Buyer, Seller’s quality manuals, program plans, procedures and inspection and testing results. All Goods supplied and services performed pursuant hereto shall be subject to inspection and test by Buyer and/or its agents and by Buyer’s customers at all times and places, whether during or after manufacture of the Goods. Buyer's approval of designs furnished by Seller shall not relieve Seller of its obligations herein. All rights and remedies of Buyer hereunder shall be in addition to any other remedies provided by law.
8. CHANGES AND SUSPENSION
Buyer may, by written (email is acceptable) notice to Seller at any time before complete delivery of the Goods is made under this Order, make changes within the general scope of this Order in any one or more of the following:
(b) quantity of Goods;
(c) delivery timing;
(d) method of shipment or routing; and
(e) make changes in the amount of Buyer furnished property
Buyer for any reason may direct Seller to suspend, in whole or in part, delivery of Goods or performance of services hereunder to such period of time as may be determined by Buyer to be necessary or desirable. If any such change or suspension causes a material increase or decrease in the cost of, or the time required for the performance of any part of the work under this Order, an equitable adjustment shall be made in the Order price or delivery schedule, or both, provided Seller shall have notified Buyer in writing of any claim for such adjustment within two (2) business days from the date of such notice from Buyer. No such adjustment or any other notification of the terms of this Order will be allowed unless authorized by Buyer by means of a written revision to this Order.
Except as may be otherwise provided in this Order, the price(s) set forth herein include all applicable Federal, State and local taxes and duties.
In the case of any tools, dies, jigs, fixtures, patterns, equipment or other facilities or property of Buyer or its customers (collectively the “Tooling”) which may be in possession of Seller in connection with this Order, Seller agrees that Seller shall be responsible for any loss or damage thereto which is caused by or as a result of any negligent act of omission on the part of Seller or its agents or employees or breach of these Terms. With respect to such Tooling, Seller will
(a) make no change, modification or alteration thereto without Buyer's written consent;
(b) make no use thereof, except in the production of Goods ordered by Buyer and;
(c) store the same without charge to Buyer in separated racks or in sections of Seller's plant in either case, clearly marked to show that it is the property of Buyer. If Seller acquires tools or manufactures them in connection with the Order and charges Buyer for the use thereof (such charges only to occur if agreed to by Buyer in writing), Buyer may at its option upon the completion or termination of this Order, elect to take title to such Tooling and upon receiving notice of such election, Seller will deliver such Tooling to Buyer.
11. RESPONSIBILITY FOR PROPERTY
Any Tooling in the possession or control of Seller or Seller's subcontractors, vendors or agents, shall be promptly (and in no case more than ten days later) returned to Buyer at Seller’s cost in the condition in which it was received by Seller upon request by Buyer and Seller assumes and retains all risk of loss of all such Tooling until such Tooling is delivered to Buyer.
Sellers agrees to procure policies of insurance during the term of this Order and for one year thereafter that (i) satisfy all legal requirements, (ii) comply with all industry standard minimum coverage amounts and (iii) satisfy any and all insurance obligations identified to Seller by Buyer prior to Seller’s start of Goods production. Satisfactory evidence of such insurance shall be submitted to Buyer promptly upon request.
13. ASSIGNMENT AND SUBCONTRACTS
This Order is not assignable and shall not be assigned by Seller without the prior written consent of Buyer. Further, Seller agrees to obtain Buyer's approval before subcontracting this Order or any substantial portion thereof; provided, however, that this limitation shall not apply to the purchase of standard commercial supplies or raw materials. If all or substantially all of Seller’s assets or equity is being acquired by one or more third parties, Seller shall notify Buyer of such in writing in advance of such acquisition.
14. USE OF DESIGN, DATA, ETC.
Seller agrees that it will keep confidential the features of any equipment tools, gauges, patterns, designs, drawings, engineering data or other technical or proprietary information furnished by Buyer and use such items only in the production of Goods under this Order, unless Buyer's written consent is first obtained. Upon completion or termination of this Order, Seller shall promptly return all such items to Buyer or make such other disposition thereof as may be directed or approved by Buyer.
15. RESPONSIBILITY FOR SUPPLIES
Except as otherwise provided in the Order, Seller shall bear the risk of loss of, or damage to, the Goods covered by this Order until delivered to Buyer's facility identified in this Order and accepted by Buyer. Buyer shall have a reasonable time after receipt of Goods to inspect and to accept or reject.
16. NOTICE OF DELAYS
Whenever the Seller has knowledge that any actual or potential delay in the timely performance of this Order, the Seller shall immediately give written notice thereof, including all relevant information with respect thereto, to the Buyer, although such notice shall not limit or extinguish any rights of Buyer under these Terms for such delay.
(a) Buyer may, by written notice of default to Seller, terminate the whole or any part of this Order in any one of the following circumstances:
(i) Seller breaches and term or condition of this Order or the Terms; or
(ii) Seller becomes insolvent or the subject of proceedings under any law relating to bankruptcy or the relief of debtors or admits in writing its inability to pay its debts as they become due.
(b) If this Order is so terminated, Buyer may procure or otherwise obtain, upon such terms and in such manner as Buyer may deem appropriate, supplies or services similar to those terminated. Seller shall be liable to Buyer for any excess costs of such similar supplies or services although such payment by Seller shall not be an exclusive remedy of Buyer.
(c) Seller shall continue performance of this Order to the extent not terminated.
18. RELEASE OF INFORMATION
Seller agrees that prior to the issuance of any publicity or publication of any advertising which in either case makes reference to this Order, or to Buyer, Seller will first obtain the written permission of an officer of Buyer with respect thereto.
Seller shall at its expense indemnify, defend and hold harmless Buyer and its affiliates and their respective officers, directors, employees, successors and assigns (“Buyer Indemnities”) from all claims, liability, loss, damage costs (including reasonable attorneys fees) and expense including special, consequential and incidental damages incurred or sustained by any Buyer Indemnities by reason of any breach by Seller or any of its employees or agents of any Seller representation or warranty identified in these Terms.
20. INTELLECTUAL PROPERTY
Seller agrees that any invention, improvement or discovery (whether or not patentable) that Seller conceives or first actually reduces to practice in the performance of this Order shall be owned by Buyer.
21. GOVERNING LAW
This Order and these Terms shall be subject to, and construed in accordance with, the laws of the State of Wisconsin, without giving effect to the principles of conflict of laws thereof. The parties agree that any and all causes of action, whether or not arising under this Order, between the parties shall be brought exclusively in the state or federal courts located in Wisconsin and each party hereby waives any objection to the laying of venue of any such litigation in the aforementioned courts and agrees not to plead or claim in any such court that such litigation brought therein has been brought in an inconvenient forum.
22. NON-WAIVER OF RIGHTS
The failure of Buyer to insist upon strict performance of any of the terms and conditions in this Order and the Terms or to execute any rights or remedies shall not be construed as a waiver of its rights to assert any of same or rely on any such terms or conditions at any time thereafter. The invalidity in whole or in part of any term or condition of this Order shall not affect the validity of other parts hereof.
23. ENTIRE AGREEMENT
The parties hereby agree that this Order, including all documents incorporated herein by reference including these Terms, shall constitute the entire agreement and understanding between the parties hereto and shall supersede and replace any and all prior or contemporaneous representations, agreements or understandings of any kind, whether written or oral, relating to the subject matter hereof.
These Terms last updated on March 25, 2019