These terms and conditions are the exclusive binding agreement between the
parties covering the purchase of the products and services ordered and are
accepted by acknowledgment and/or commencement of performance. THIS ORDER
CAN BE ACCEPTED ONLY ON THESE TERMS AND CONDITIONS. ADDITIONAL OR
DIFFERENT TERMS PROPOSED BY SELLER ACKNOWLEDGMENT HEREOF WILL NOT BE
APPLICABLE UNLESS ACCEPTED IN WRITING BY THE BUYER. ACCEPTANCE OF THE
PRODUCTS OR SERVICES DELIVERED UNDER ESCO PURCHASE ORDER SHALL NOT
CONSTITUTE ACCEPTANCE OF SELLER TERMS AND CONDITIONS. No change,
modification, or revision of Purchase Order shall be effective unless in
writing and signed by the buyer's daily authorized purchasing
representative, or officer. Additional terms and conditions specifically
provided herein, the terms and conditions provided on the Purchase Order
shall prevail.
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Seller shall sell to Esco Aster the goods ("Goods") or services
("Services") shown on the face of Purchase Order at the prices
specified. Any forecasts provided by Esco Aster were provided as an
accommodation to the Seller and shall not constitute a commitment of
any type by Esco Aster. Except as otherwise provided in this Order,
prices are exclusive of applicable freight charges and duties.
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Esco Aster shall be responsible for any applicable sales taxes,
provided Seller has submitted appropriate information or documentation
to allow Esco Aster to recover such taxes as appropriate. Esco Aster
shall include such taxes with the payment or provide Seller with the
appropriate information or documentation to support exemption from
such taxes. Esco Aster has no other or further liability to Seller
with respect to any tax, duty, and levy or like imposition for which
Seller may be liable as a result of supply of Goods and Services.
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Payment by Esco Aster shall neither constitute acceptance of the Goods
and Services nor impair Esco Aster's right to inspect such Goods or
Services or invoke any available remedies.
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Seller shall ship goods in the method identified by Esco Aster to
permit Seller to meet the delivery date(s) identified by Esco Aster on
the face of Purchase Order ("Delivery Date"). If Seller ships by any
other method, Seller shall pay any resulting increase in the cost of
freight. Except as specified below, shipments of Goods shall be FCA
(as that term is defined in the Incoterms 2000 handbook) Seller's
place of shipment/export, and title and risk of loss or damage, shall
pass from Seller to Esco Aster upon Seller's delivery of the goods
designated carrier at the place of shipment/export. If Esco Aster
agrees to pay for the applicable freight charges and duties as part of
the purchase price, shipment shall be DDP, and title and risk of loss
or damage shall pass from Seller to Esco Aster upon Seller's delivery
of Goods to the "Ship To" address identified by Esco Aster on the face
of Purchase Order.
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Seller shall handle, pack, and package the Goods so as to protect the
Goods from loss or damage, in conformance with good commercial
practice, Esco Aster specifications, government regulations (including
those applicable to chemicals and hazardous materials) and other
applicable requirements. Without limiting the generality of the
foregoing sentence, Seller shall use packaging materials, including
pallets, that are free of pests and comply with all applicable
regulations regarding Solid Wood Packing Materials; Seller shall use
recycled or reusable packaging materials and minimize the number of
different types of packaging materials whenever possible; and Seller
shall comply with all applicable regarding packaging, recycling re-use
and return, and furnish to Esco Aster, upon request, information or
documentation of Seller's compliance. Seller shall be responsible for
any such loss or damage due to its failure to handle, pack and package
the Goods in a proper and lawful manner; Esco Aster shall not be
required to assert any claims for such loss or damage against carrier
involved. In each shipment, Seller shall include a packing list that
contains the following: (a) this Order number; (b) the Esco part
number; (c) the quantity shipped; and (d) the date of shipment. The
information on the packing list must agree with the information on the
Seller's invoice.
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Failure to meet the Delivery Date specified on the face of Purchase
Order shall constitute a breach of this Order. Seller shall give Esco
Aster notice of any prospective failure to ship Goods or provide
Services in time to meet Delivery date. If only a portion of Goods is
available for shipment to meet Delivery Date, Seller shall ship the
available Goods unless directed by Esco Aster to reschedule the
shipment. If only a portion of the Services can be performed on the
Delivery Date, Seller shall perform such Services unless directed by
Esco Aster to reschedule performance. Partial deliveries shall be
deemed late shipments and considered complete only when all Goods and
Services have been shipped. Notwithstanding the above, upon Seller's
notice of any prospective failure to ship Goods or provide Services in
time to meet the Delivery Date, Esco Aster reserves the right to
terminate the Order and any subsequent Orders without any charge or
liability.
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If, due to Seller's failure to ship Goods in a timely manner, the
identified method of transportation would not permit Seller to meet
the Delivery Date, Seller shall ship the Goods by air transportation
or other means acceptable to Esco Aster and shall pay for any
resulting increase in cost of freight.
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If Esco Aster receives any shipment more than three working days prior
to the Delivery Date, Esco Aster may return the Goods or delay
processing the corresponding invoice until the Delivery date.
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Seller shall be responsible for all risk and expenses, including
transportation charges, associated with (a) the return of all
Non-complying Goods, over shipments and early shipments returned by
Esco Aster to seller; and (b) the shipment to Esco Aster by Seller of
all repaired, replacement and reworked Goods.
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Esco Aster may, without charge or liability, change or cancel any
portion of this Order, provided Esco Aster gives Seller notice (a) for
customized Goods or Services (i.e., supplied exclusively in accordance
with Esco Aster's designs or specifications), at least thirty (30)
calendar days prior to Delivery Date; and (b) for all other Goods or
Services at any time prior to shipment.
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Esco Aster may, without any change, effective upon notice to the
Seller, Esco Aster's designs or specifications at any time prior to
shipment of corresponding Goods or receipt of corresponding Services.
If any such change directly affects the prices or delivery schedules
of Goods or Services, an equitable adjustment may be made, if Seller
makes a written claim for an adjustment within 30 days of Esco Aster's
notice prior to the shipment of the Goods or provision of Services and
provided that such equitable adjustment is documented in writing
signed by authorized representatives of both parties. If, after
reasonable and good-faith efforts, the parties are unable to agree
upon the amount of the adjustment, Esco Aster may terminate, without
any change or liability, this Order as to all Goods and Services
affected.
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Seller shall not, with any prior to written consent of Esco Aster,
make any process or design changes affecting the Goods.
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Seller warrants that all Goods and Services shall (a) conform strictly
to the specifications, design criteria, descriptions, drawings,
samples, and other requirements described or referenced in this Order
or provided by Seller; (b) be free from defects in design, materials,
and workmanship; and (c) be free if all liens, encumbrances and other
claims against title.
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Seller warrants that all Goods and Services shall not infringe any
patent, trademark, copyright, trade secret or other intellectual
property right of a third party.
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Seller warrants that (a) Goods are new and do not contain any used or
reconditioned parts or materials, unless otherwise specified or
approved by Esco Aster; and (b) all Services shall be performed in a
professional manner.
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Seller's warranties of conformance, defects and liens shall be in
effect for the longer of either (i) Seller's normal warranty period,
or (ii) one year following the date of acceptance of the Goods or
Services by Esco Aster. All other warranties provided by Seller under
Esco Aster Purchase Order shall be in effect perpetually.
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Seller should ensure that all materials supplied should be accompanied
with the appropriate Quality Documents (Certificate of Analysis,
Certificate of Conformance, Certificate of Quality).
- Drawing requirements of the product supply to Esco Aster.
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Quality requirements which issue to the Seller by Esco Aster (ex: visual
inspection criteria, products quality requirements etc.) After First
Article approval, Seller must not make any changes in their process and
materials without prior written approval from Esco Aster. Changes such
as:
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Process Changes (such as plating method, process control parameter,
environment, etc.)
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Material Changes (direct and or any indirect or process additive
substance materials which may or may not specify in the drawing)
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Location Changes (change of manufacturing location which includes
sub-contractors process).
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Seller must not supply or used any counterfeit components or recycled
components or materials on any products or materials supplied to Esco
Aster. Sellers are fully responsible for the source of the components
are from the proper materials and authorized channel, and all the
transaction documents are required to be file as proof of purchase from
the proper and authorized channel at Seller premises.
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Seller must take the initiative in improving the product qualities DPPM
(Defect Part Per Million) towards zero DPPM.
- Government penalties and fines.
- Losses claim by Esco Aster’s customer to Esco Aster.
- Customer complaints handling and administration fees.
- Defect verification cost.
- Sorting and rework cost.
- Freight handling cost.
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All products purchased hereunder shall be subjected to inspection and
test by Esco Aster to the extent practicable at all times and places
during and after the period of manufacture and, in any event prior to
final acceptance. If inspection or test is made by Esco Aster on
Seller's premises. Seller, without additional charge, shall provide all
reasonable facilities and assistance for the safety and convenience of
Esco Aster's inspectors. No inspection or test made prior to final
acceptance shall relieve the Seller from responsibility for defects or
other failures to meet the requirements of this order.
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In case any product is defective in material of workmanship, or
otherwise not in conformity with the requirements of this order, Esco
Aster shall have the right either to reject it, require its correction,
or conditionally accept it. Esco Aster reserves the right to return such
conditionally accepted products for credit, within a reasonable period
after receipt, if Esco Aster determines that such products are
unsuitable for its purpose. Any product which has been rejected or
required to be corrected shall be replaced or corrected by and at the
expense of the Seller promptly after notice. If, after been requested by
Esco Aster, Seller fails to promptly replace or correct any defective
product within the delivery schedule, Esco Aster may:
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at its option, by contract or otherwise replace or correct such
product and charge the Seller the cost occasioned thereby.
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without further notice terminate this order for default in
accordance with the clause herein entitled "Termination for default"
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utilize the defective product and require an appropriate reduction
in price.
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Notwithstanding any prior inspection or payment hereunder, all products
shall also be subjected to final inspection and acceptance at Esco
Aster's premises within a reasonable time after delivery. The Seller
shall provide and maintain an inspection system which is acceptable to
Esco Aster. Records of all inspection work shall be kept complete and
available to Esco Aster during the performance of Purchase Order and for
such further period as Esco Aster may determine.
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If Goods include software, Seller grants to Esco Aster a
non-exclusive, royalty-free, worldwide license to use, import,
reproduce and distribute the software in object code form for internal
use directly or as integrated into Esco Aster products. Seller also
grants to Esco Aster a non-exclusive, royalty-free, worldwide license
to use, import, reproduce and distribute and offers for sale any
copies of the software purchased that remain in the original
shrink-wrapped packaging. If Goods include documentation, Seller
grants Esco Aster a non-exclusive, royalty-free, worldwide license to
use, import, are in addition to, and shall not limit or prepare
derivative works in Esco Aster's name all documentation furnished by
Seller. Esco Aster may reproduce such documentation without Seller's
logo or other identification of source, subject to affixing copyright
notices to all copies of documentation, and Seller hereby waives and
shall cause to be waived all applicable moral rights with respect to
such documentation. These rights with respect to software and
documentation shall extend to (a) third parties to use and reproduce
the Goods for Esco Aster's internal use; (b) third-party channels of
distribution.
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If Seller breaches any provision of this Order, Esco Aster may
terminate the whole part or any part of this Order, unless Seller
cures the breach within ten (10) working days after receipt of Esco
Aster's notice of breach.
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"Breach" shall, without limitation, include (a) any proceeding,
whether voluntary or involuntary, in bankruptcy or insolvency by or
against Seller; (b) the appointment, with or without Seller's consent,
of a receiver or an assignee for the benefit of creditors; (c)
Seller's failure to provide Esco Aster, upon request, with reasonable
assurances of performance; or (d) any other failure by Seller to
comply with the Order.
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If Esco Aster terminates Purchase Order in whole or in part as
provided, Esco Aster may procure, upon such terms and in such manner
as Esco Aster deems appropriate, replacement goods or services, and
Seller shall reimburse Esco Aster upon demand for all additional costs
incurred by Esco Aster in purchasing such replacement goods or
services.
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The rights and remedies granted to Esco Aster pertaining to the
Purchase Order are in addition to, and shall not limit or affect, any
other rights, or remedies available at law or in equity.
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Seller shall comply with all applicable import and export
requirements, and shall furnish to Esco Aster, upon request,
information, or documentation of Seller's compliance, as well as any
other information or documentation required to enable Esco Aster to
comply with such requirements applicable to its receipt of any Goods.
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Upon Esco Aster's request, Seller shall provide Esco Aster an
appropriate certification stating the country of origin for Goods,
sufficient to satisfy the requirements of (a) the customs authorities
of the country of receipt; and (b) any applicable export regulations.
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All Goods shall be marked (or container shall be marked if there is no
room on the Goods themselves or unless exempted from marking) with the
country of origin.
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Seller shall issue a commercial invoice, containing, without
limitation, the following information: invoice number, invoice date,
name and address of shipper, name and address of Seller (if different
from the shipper), name and address of the consignee, name and address
of the buyer (if different from the consignee), a detailed description
of the Goods, model number, serial number of Goods (if goods are
serialized), Esco Aster assigned Harmonized Tariff Schedule (HTS)
number for the destination country, order number, box number, total
number of boxes, total box weight (in kilograms), country of origin,
quantities in weight and measure of the country to which Goods are
shipped, unit price of each Good, value of any customs assists, total
invoice value, currency of the invoice, invoice type, Incoterms 2000
terms of sale, carrier name and bill of lading number. The invoice
must be issued in the language required by the country to which Goods
are shipped.
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If any Goods are imported, Seller shall when possible allow Esco Aster
to be the importer of record, unless otherwise specified or approved
by Esco Aster. If Esco Aster is not the importer of record and Seller
obtains duty drawback rights to the Goods. Seller shall furnish to
Esco Aster, upon request, information and documentation required by
the customs authorities of country of receipt to prove importation and
to transfer drawback rights to Esco Aster.
All payments are made conditional upon acceptance by the Buyer of the
articles called for the under Esco Aster Purchase Order. Invoice for tools
will not be honored until production pieces are approved by Esco Aster's
inspection Department.
All payments are made conditional upon acceptance by the Buyer of the
articles called for the under Esco Aster Purchase Order. Invoice for tools
will not be honored until production pieces are approved by Esco Aster's
inspection Department.
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Seller shall not assign its rights to obligations without Esco Aster's
prior written consent. Any attempted delegation of assignment shall be
void.
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The waiver of any term of condition of this Order must be in writing.
No such waiver shall be constructed as a waiver of any other term or
condition, nor as a waiver of any subsequent breach of the same term
or condition.
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The validity, interpretation, and performance of the Order is governed
by and shall be construed in accordance with the laws of the place
where the contracting Esco Aster office is registered, without giving
effect to any choice of law or conflict of law provision or rule, and
specifically excludes the UN Convention on the International Sale of
Goods. Any dispute arising out of or in connection with the Order
shall be submitted to the exclusive jurisdiction of the courts of the
country in which the contracting Esco Aster office is registered.
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TO THE FULLEST EXTENT PERMITTED BY LAW, UNLESS EXPRESSLY PROVIDE
OTHERWISE, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT,
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES BASED ON CONTRACT, TORT
OR OTHER LEGAL THEORY. ON WITHSTANDING THE FOREGOING, SELLER SHALL BE
RESPONSIBLE FOR ANY DAMAGES OF ANY KIND.
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Nothing in this Order shall be construed to preclude Esco Aster from
producing, distributing or marketing the same or similar goods or
services as the Goods or Services provided under this Order or
purchasing such same or similar goods or services from other third
parties.
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If a body of competent jurisdiction holds any term or provision of
this Order to be invalid or unenforceable, such term or provision will
be construed, limited or ,if necessary, severed to the extent
necessary to eliminate such invalidity or unenforceability, and the
other provisions of this Order will remain in full force and effect.
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Esco Aster sources for materials from all over the world to find the
best and most suitable materials for production. Esco Aster seller
selection process is purely based on the best combination of price,
performance, quality and service. Our company policy prohibits
individuals from accepting any favors of any kind and therefore
influencing the decision-making process. We would like to make below
agreements with sellers:
- Seller must not violate any Applicable Anti-Bribery Law.
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Seller has and must always implement adequate procedures designed to
prevent it or any Associated Person from engaging in any activity
which would constitute an offense under the Bribery Act or violate
any Applicable Anti-Bribery Law.
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Seller represents that, no improper financial or other advantage has
been, will be or is agreed to be given to any person (whether
working for or engaged by Esco Aster or any third party) by or on
behalf of Seller or its Associated Persons.
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Breach of any of the provisions in this agreement or of any
Applicable Anti-Bribery Law is a material breach of seller
cooperation Agreement, without prejudice to any other right, relief
or remedy, entitles Esco Aster to terminate the cooperation
immediately.
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Seller agrees to fully cooperate with Esco Aster in its efforts to
implement its internal policies against bribery and corruption.
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Seller confirms that it has not, and covenants that it will not, in
connection with the conduct of its business activities with or
involving Esco Aster, promise, authorize, ratify or offer to make,
or take any act in furtherance of any payment, contribution, gift,
reimbursement or other transfer of anything of value, or any
solicitation, directly or indirectly: (i) to any individual
including government officials; or (ii) to an intermediary for
payment to any individual including government officials; or (iii)
to any political party; or (iv) to Esco Aster and any of its
officers, employees, contractors, and other representatives, for the
purpose or effect of public or commercial bribery, acceptance of or
acquiescence in extortion, kickbacks, fraud, collusion, nepotism,
and other forms of corruption.
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Seller undertakes to immediately report to Esco Aster’s director or
officer any actual or threatened violation of any of the provisions
under this clause.
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Esco Aster and the Seller shall each retain responsibility for its
compliance with all applicable Sanctions. The Seller hereby
acknowledges that: (i) Esco Aster shall not be required by the terms
of the relevant contract, to be directly or indirectly involved in any
activities that may be prohibited by applicable Sanctions; (ii) Esco
Aster’s intent is to comply with all U.S., EU, UN, Australia, the UK,
Singapore, and other Sanctions that might be applicable to Esco Aster
or any of its Group Companies (the “Group”)]; and (iii) Esco Aster may
take any actions that it deems appropriate for it to confirm
compliance with applicable Sanctions and (iv) the Seller will not take
any actions that would cause the Group or the Seller to violate any
applicable Sanctions.
“Sanctions” means economic or financial sanctions, requirements or
trade embargoes imposed, administered or enforced from time to time by
U.S. government authorities (including, but not limited to, the
Treasury Department’s Office of Foreign Assets Control (OFAC), the
U.S. Department of State and the U.S. Department of Commerce), the UN
Security Council, the EU, Australia or the UK government, including
Her Majesty’s Treasury.