Terms & Conditions of Purchase

1. PURCHASE ORDER
   All shipping papers, invoices and bills of lading must show the number of the Purchase Order (the "Purchase Order") to which these Terms and Conditions of Purchase are attached and into which these Terms and Conditions of Purchase are incorporated. All shipments, containers, etc. must be identified with the Purchase Order Number and must be shipped direct to Buyer at destination.
   
   The Purchase Order is expressly limited to and made conditional upon the terms and conditions contained herein. If and to the extent Buyer designates additional documents or terms as being supplemental hereto, the terms and conditions of such supplemental documents will be automatically incorporated herein as a result of such designation. Any of Seller's terms and conditions that are in addition to or different from those contained herein and that are not separately agreed to in writing by Buyer are of no force or effect and hereby rejected by Buyer. Seller shall be deemed to have assented to all terms and conditions contained herein if any part of the products described in the Purchase Order is shipped. 
    
2. TERMS OF PAYMENT
   Unless otherwise stipulated, invoices shall be paid on delivered and accepted goods in accordance with the terms in the Purchase Order; due dates for payment shall be computed from the later of the date on which (i) Buyer receives a correct invoice or (ii) Buyer receives the goods described in such invoice. Payment shall be deemed made (for the purpose of earning any discount offered by Seller or otherwise) on the date Buyer's check is mailed to Seller. Payment of the invoice shall not constitute acceptance of the product and shall be subject to an appropriate adjustment for failure of Seller to meet the requirements of the Purchase Order.
    
3. TOOLS
   Buyer retains full ownership of and title to all dies, tools, gauges, fixtures, patterns, masks, master artwork and other miscellaneous items (collectively the "Buyer's Tools") that are developed for Buyer in conjunction with the Purchase Order. Seller shall, at its own expense, keep in good condition all dies, tools, gauges, fixtures, patterns, etc. that are applicable to the materials and products provided under the Purchase Order. Seller will safeguard the Buyer's Tools and will pay the cost of repair or replacement thereof, if such repair or replacement is necessitated by Seller's negligent or willful misuse of the Buyer's Tools. Buyer shall pay the cost of specification changes in Buyer's Tools only if Buyer has authorized such changes in writing.
    
4. CHANGES
   Buyer reserves the right at any time to change, by written notification, any of the following: (a) specifications, drawings and data related to the Purchase Order where the items to be furnished are to be specially manufactured for Buyer; (b) quantity; (c) methods of shipment or packaging; (d) place of delivery; (e) time of delivery; or (f) any other matters affecting the Purchase Order.
   
   If any change by Buyer causes an increase or decrease in the cost or the delivery schedule for the Purchase Order, Buyer shall make, in writing, an equitable adjustment in the price or delivery schedule, or both. Any claim by Seller for adjustment under this clause shall be deemed waived unless asserted in writing within ten (10) days after Seller's receipt of notice of such change.
    
5. TERMINATION
   Buyer may terminate the Purchase Order for its convenience, in whole or in part, at any time upon five (5) days prior written or electronic (e.g., e-mail or facsimile transmission) notice to Seller. Upon receipt of such termination notice, Seller shall promptly comply with the directions contained in such notice and shall, as required, (a) take action necessary to terminate the work as provided in the notice, minimizing costs and liabilities for the terminated work; (b) protect, preserve and deliver in accordance with Buyer's instructions any property related to the order in Seller's possession; and (c) continue the performance of any part of the work not terminated by Buyer. 
   
   Payment to Seller under this paragraph 5.3 shall be the sole remedy available to Seller in the event of a termination by Buyer pursuant paragraph 5. In no event shall Buyer’s obligation to Seller hereunder exceed 20% of order.
    
   1. Buyer's rights and remedies under this entire Paragraph 5 and its subsections shall not be exclusive and are in addition to any other rights and remedies provided by law or under these Terms and Conditions.  Buyer may also, by written or electronic (e.g., e-mail or facsimile transmission) notice to Seller, terminate the whole or any part of this order for cause immediately and without further notice: (a) if Seller fails to deliver the goods or to perform the services, all as called for in the Purchase Order; (b) the goods are defective; or (c) if, at any time, reasonable grounds for insecurity arise as to Seller's expected performance (including timely performance) within ten (10) days after Buyer's written demand for adequate assurance of such performance. Buyer may also terminate for cause if Seller becomes insolvent or makes an assignment for the benefit of creditors or has filed against it a petition in bankruptcy or reorganization proceedings.
       
   2. If Buyer terminates all or part of this order for cause under paragraph 5.1, Buyer may procure, upon  terms and in a manner it deems appropriate, goods and services similar to those terminated. Seller shall be liable for additional costs, if any, for Buyer's purchase of such similar goods and services to cover Seller's default.
       
   3. On termination for Buyer's convenience pursuant to paragraph 5, Seller, at the time of termination, may have in stock or on firm order, completed or uncompleted items or raw, semi-processed or completed  materials for use in fulfilling this order for Buyer.  
       
      1. For completed items or materials: Buyer shall either require delivery of all or part of the completed goods and make payment at the order price, or (without taking delivery) pay Seller the difference, if any, between the order price and the market price, if lower, at the time of termination. 
          
      2. For uncompleted items or raw or semi-processed materials: Buyer shall either require Seller to deliver all or part of such goods at the portion of the order price representing the stage of completion, or (without taking delivery) pay Seller for such goods which are properly allocable to the Purchase Order a portion of the order price representing the stage of completion, reduced by the higher of the market or scrap value of the goods at that stage of completion.  
          
      3. For goods that Seller has on firm order:  Buyer may at its option either take an assignment of Seller's right under the order or pay the cost, if any, of settling or discharging Seller's obligation under the order.
          
6. SELLER CHANGES PROHIBITED
   Seller may make no changes to Buyer's Tools or the manufacturing process related to production of the goods to be delivered pursuant to the Purchase Order without Buyer's prior written consent.
    
7. ASSIGNMENT AND DELEGATION
   Seller may not delegate, assign, transfer or subcontract this order or any right or obligation hereunder without Buyer's prior written consent. Any purported assignment, transfer or subcontract shall be void and ineffective and grounds for Buyer's termination of the Purchase Order.
    
8. DELIVERY
   Time is of the essence in the performance of the Purchase Order. Seller shall furnish sufficient labor and management forces, plant, and equipment and shall work such hours (including night shift, overtime, weekend and holiday work) as may be required to assure timely delivery.
   
   Goods that are delivered in advance of schedule may, at Buyer's option, either (i) be returned at Seller's expense for proper delivery; (ii) have payment terms therefore delayed by Buyer until the date goods are actually scheduled for delivery; (iii) be placed in storage for Seller's account until delivery date specified herein; or (iv) be canceled in whole or in part and returned at Seller's expense. Acceptance by Buyer of a late delivery of either a whole or a portion of the Purchase Order shall not constitute a waiver of Buyer's claim for damage caused by the late delivery nor Buyer's right to cancel the remaining portion of the Purchase Order.  If delivery is behind schedule, Buyer may request Seller to ship by express shipment.  In such event, such delivery shall be made by express, and Seller shall pay the difference between the freight and the express shipment rates.
   
   Regardless of delivery or performance in installments, Seller's obligation is not severable. Buyer need not accept shipments sent C.O.D. without its consent and may return them at Seller's risk and expense.
    
9. EXCUSABLE DELAY
   Fires, floods, strikes, lockouts, epidemics, accidents, shortages or other causes beyond the reasonable control of the parties, which prevent Seller from delivering, or Buyer from receiving, any of the goods and services covered by the Purchase Order shall suspend Seller's delivery obligations until the cause is removed, subject however, to Buyer's right of termination for convenience under Paragraph 5.
    
10. TAXES
    If the goods furnished under the Purchase Order are for resale, Buyer will pay any sales or use taxes imposed on such goods after delivery. Seller will pay all other taxes imposed before delivery to the destination point, including property taxes imposed on goods for which title has passed to Buyer.
     
11. COMPLIANCE OF LAWS
    Seller warrants and agrees that it has complied and will comply with all applicable Federal, State and local laws, codes and regulations.
     
12. PACKAGING, PACKAGING LISTS AND BILL OF LADING
    Seller shall be responsible for proper packaging, loading and tie-down damage during transportation. Seller must bill all returnable containers on a separate memo invoice; return transportation charges will be sent collect, FOB Buyer's point of shipment, and for Seller's account. Buyer's weight and/or count will be accepted as final and conclusive on all shipments not accompanied by a packing list.
     
13. INSPECTION
    All goods furnished hereunder will be subject to Buyer's final inspection and approval within a reasonable time after delivery irrespective of payment date. Buyer may, at its option, (a) reject goods not in accordance with the instructions, specifications, drawings, data or Seller's express or implied warranties ("Non-Conforming Goods") or (b) accept some and reject other Non-Conforming Goods. Buyer may at its option, in addition to all other rights and remedies available to it under applicable law, return Non-Conforming Goods to Seller, at Seller's expense, for credit or replacement, as selected by Buyer. Alternatively, Buyer may retain Non-Conforming Goods and Seller shall pay Buyer its damages due to them. Payment for any goods shall not be deemed acceptance of such goods, and in no event shall Buyer incur any liability to pay for rejected Non-Conforming Goods.
    
    Buyer shall have a reasonable time (not less than ten (10) days from receipt) to submit claims of  count, weight, quantity, loss or damage to delivered goods. Buyer will calculate damages on claims and deduct the amount from Seller's invoice. If the invoice was previously paid, Seller will reimburse the amount of  damages to Buyer. 
    
    Seller shall assume responsibility for and will pay any and all loss, cost, damage, or expense,  including attorney fees and cost of replacement, incurred by Buyer as a result of Buyer's rejection of Non- Conforming Goods or to Seller's untimely delivery. 
     
14. INDEMNITY AND THIRD PARTY RIGHTS
    SELLER AGREES TO DEFEND, INDEMNIFY AND HOLD BUYER HARMLESS AGAINST ALL LIABILITIES, CLAIMS OR DEMANDS, WHETHER ARISING IN TORT OR IN CONTRACT, FOR INJURIES OR DAMAGES TO ANY PERSON OR PROPERTY ARISING OUT OF SELLER'S ACTS OR OMISSIONS IN THE PERFORMANCE OF ITS DUTIES UNDER THIS CONTRACT.
    
    Seller shall, at its expense, defend any action, claim or demand, whether groundless or otherwise, made against Buyer, its successors and assigns, based on any claim that any goods or any component part delivered or furnished hereunder infringes the rights of any third party, including any U.S. or foreign letters patent or trademark (excepting infringement or the like necessarily resulting from adherence to specifications furnished by Buyer). Buyer agrees to notify Seller in writing of any such claim and to provide such assistance, at Seller's expense, as may be reasonably required in defending the suit or proceeding. Seller shall pay all damages, costs and attorney fees awarded in any suit or proceeding.
    
    If the goods or any component part furnished hereunder are determined to infringe rights of any third party and their use by Buyer is enjoined, Seller shall, at its option and its own expense: (a) procure for Buyer and its successors and assigns, the right to continue using such goods; (b) replace them with substantially equivalent non-infringing goods acceptable to Buyer; or (c) modify them so they become non-infringing with substantially equivalent performance acceptable to Buyer. Notwithstanding clauses (a), (b) and (c) of this paragraph, Buyer reserves its rights at law, and, at its option, may return the infringing goods to Seller, at Seller's expense, and Seller shall promptly refund the purchase price to Buyer. 
     
15. SELLER WARRANTIES
    By accepting the Purchase Order, Seller warrants that the goods and services furnished (a) will be free from contaminants, defects in materials, design and workmanship, (b) are new and merchantable, (c) are in full conformity with Buyer's specifications, drawings and data, and Seller's descriptions, promises or samples, (d) will be fit for Buyer's intended use, provided Seller has reason to know of such use, and (e) title thereto that is conveyed to Buyer will be free and clear from all liens, claims and encumbrances.
    
    Seller further warrants that the sale, resale, or use of the materials furnished hereunder, and the method of manufacture will not infringe any patents (except insofar as such infringement necessarily arises solely from the specific design and specifications furnished by Buyer) and Seller agrees to defend, protect and hold harmless Buyer, its successors, assigns, customers and users of its materials of products from all damages and expenses (including, without limitation, all legal fees and expenses) resulting from any and all claims based on any such actual or alleged infringement. 
    
    These warranties shall survive acceptance of the goods delivered hereunder, and are in addition to any  warranties of additional scope given to Buyer by Seller. No implied warranties by Seller are excluded. All warranties run to both Buyer and its customers.
    
    Seller, without cost to Buyer, shall promptly do all things necessary to correct any breach of the above  warranties in a manner satisfactory to Buyer. If Seller fails to repair or replace as Buyer may require, Buyer  may contract or otherwise repair or replace such defective goods and back-charge Seller for the cost of such repair or replacement.  
     
16. TITLE AND RISK OF LOSS
    Notwithstanding any other term of the Purchase Order to the contrary, damage to or loss of the materials or products covered hereby shall be at Seller's risk until such materials or products are received by Buyer from the last carrier or shipper, unless otherwise acknowledged in writing by Buyer.
    
    Unless otherwise agreed in writing by Buyer, delivery of materials and products hereunder shall be made FOB Buyer's designated delivery point. If Buyer makes progress payments, title to the goods shall be transferred to Buyer as payments are made, and in the same proportions as the cumulative payments bear to the order price.  Seller shall also identify such goods as the property of Buyer, unless Buyer waives identification. 
     
17. NON-DISCLOSURES
    If Buyer discloses or grants Seller access to any research, development, technical, economic or other business information or know-how of a confidential nature, whether reduced to writing or not, Seller agrees, as a condition of receiving such information or know-how, that it will not use or disclose any such information to any other person at any time, except as may be necessary in the performance of this order, without Buyer's prior written consent. Seller will use such information only to perform its obligations under the Purchase Order and it will only disclose such information to those of its officers, directors and responsible employees to whom it will be essential to make such disclosure in order to accomplish the purpose of the Purchase Order.
     
18. PROPERTY FURNISHED TO SELLER BY BUYER
    All special dies, molds, patterns, jigs, fixtures and any other property which Buyer furnished to Seller or specifically paid for, for use in the performance of this contract shall be and remain Buyer's property, shall be subject to removal upon Buyer's instruction, shall be for Buyer's exclusive use, shall be held at Seller's risk, and shall be kept insured by Seller at Seller's expense while in its custody or control in an amount equal to the replacement cost, with loss payable to Buyer, Seller will furnish copies of policies or certificates of insurance on Buyer's demand.
     
19. RESOLUTION OF CONFLICTS OR INCONSISTENCIES OCCURRING IN THE ORDER
    It is Seller's responsibility to comply with this and all referenced documents and to clarify with Buyer any inconsistencies or conflicts in any parts of the order, such as the provisions contained in this document, additional terms and conditions, general specifications, detailed specifications, etc. If Seller fails to resolve these conflicts or inconsistencies, Seller will be solely responsible for errors resulting from such conflicts or inconsistencies. Where documents are referenced herein, the version in effect at the time of order placement shall apply.
    
    Acknowledgment of this order, shipment of any goods or rendering of any services pursuant to this order shall be deemed an acceptance of these terms and conditions. Other then as provided in paragraphs 6 through 10 no modification of or release from the Purchase Order shall be binding unless agreed to in writing and specifically labeled as a modification or release. These terms and conditions supersede any submitted by Seller in any proposal or acknowledgment and Buyer hereby objects to any additional terms contained in such acceptance, proposal or acknowledgment.  
     
20. WAIVER
    Buyer's failure to insist on Seller's strict performance of the terms and conditions of the Purchase Order at any time shall not be construed as a waiver by Buyer for performance in the future.
     
21. DESIGN RIGHTS
    Buyer shall at all times have and retain title to all designs, drawings and specifications furnished by Buyer to Seller and intended for use with the Purchase Order.  Seller agrees to use such designs, drawings and specifications only in connection with the Purchase Order and shall keep said designs, drawings and specifications confidential and proprietary and shall not disclose them to any other persons, firms, corporations, or government officials without obtaining the prior written consent of Buyer signed by an officer of Buyer.
    
    Notwithstanding restrictive legends to the contrary, title to plans, drawings and specifications for goods  delivered hereunder, whether or not furnished by Buyer, shall be vested and remain with Buyer and may be used by Buyer for any purpose. 
     
22. MODIFICATION, WAIVER, REMEDIES
    No change, modification, rescission, discharge, abandonment or waiver of these Terms and Conditions of Purchase shall be binding upon Buyer unless made in writing and signed by an officer of Buyer.  A waiver of any right or obligation set forth herein on one occasion shall not be deemed to be a waiver of any right or obligation or of the same right or obligation on any other occasion.  Remedies herein provided shall be cumulative and additional to any other remedies provided under applicable law.
     
23. APPLICABLE LAW
    The Purchase Order and matters connected with the performance thereof shall be construed, interpreted, applied and governed in all respects by the laws of the State of Arizona.
    
    Each party hereby irrevocably submits to the jurisdiction, process and venue of any Arizona State or Federal court sitting in Tucson, Arizona, and hereby irrevocably waives, to the fullest extent it may effectively do so, the defenses of lack of jurisdiction over any person, inconvenient forum or improper venue, to the maintenance of any action in such jurisdiction. 
     
24. ENTIRE AGREEMENT
    The Purchase Order and these Terms and Conditions of Purchase contain the entire and only agreement between the parties hereto relating to the subject matter hereof, and any representation, affirmation of fact, and course of prior dealings, promise or condition in connection therewith or usage of the trade not incorporated herein shall not be binding on either party.  The rights and obligations contained herein shall inure to and be binding upon the parties, their legal representatives, successors, and permitted assigns.