Tempest Telecom Solutions, LLC’ purchase order is subject to the following terms and conditions:
Seller’s commencement of work on the goods subject to this purchase order or shipment of such goods, whichever occurs first, shall be deemed an effective mode of acceptance of this purchase order. Any acceptance of this purchase order is limited to acceptance of the express terms contained on the face and reverse side of this purchase order. Any proposal for additional or different terms or any attempt by Seller to vary in any degree any of the terms of this offer in Seller’s acceptance is hereby objected to and rejected, but such proposal shall not operate as a rejection of this purchase order unless such variances are in the terms of the description, quantity, price or delivery schedule of the goods, but shall be deemed a material alteration thereof, and this offer shall be deemed accepted by Seller without said additional or different terms. If this purchase order shall be deemed an acceptance of a prior offer by Seller, such acceptance is limited to the express terms contained on the face and reverse side of this purchase order. Additional or different terms or any attempt by Seller to vary in any degree any of the terms of this purchase order shall be deemed material and are objected to and rejected, but this purchase order shall not operate as a rejection of Seller’s offer unless it contains variances in the terms of the description, quantity, price or delivery schedule of the goods.
Unless otherwise specified all goods ordered will be subject to final inspection and approval at the warehouse of Tempest, notwithstanding any payments or any inspection at source. Tempest may reject or require the prompt correction in place or otherwise of any goods which are defective in material or workmanship or otherwise fail to meet the requirements of this purchase order. Tempest may, in addition to any other rights it may have by law, prepare for shipment and ship the goods to Seller, require Seller to remove them, or direct their correction in place, and the expense of any such action, including transportation both ways, if any, shall be borne by Seller. If Seller fails promptly to remove such goods or to proceed promptly to replace or correct them, Tempest may replace or correct such goods at the expense of Seller, including any excess costs. Seller shall not again tender rejected or corrected goods unless Seller discloses the former tender and rejection or requirement of correction. All work under this purchase order is subject to source and surveillance inspection by Tempest, agencies of the U.S. Government and Tempest’s customer. Seller, without additional cost, shall provide all reasonable facilities and assistance for the safety and convenience of such inspectors. At the time of inspections Seller shall make available to the inspectors copies of all drawings, specifications and process, preservation and packaging data applicable to the goods ordered herein.
All goods ordered to Tempest’s specifications must comply with specifications current as of the date of this order, unless otherwise specified by Tempest.
This purchase order may not be assigned in whole or in part without the written consent of Tempest. No subcontract shall be made by the Seller with any other party for furnishing any of the completed or substantially completed goods, spare parts, or work required by this purchase order without the prior written approval of Tempest.
EFFECT OF INVALIDITY
The invalidity in whole or part of any terms or conditions of this purchase order shall not affect the validity of any other terms or conditions.
The remedies herein reserved shall be cumulative and additional to any other remedies in law or equity. No waiver of a breach of any provision of this purchase order shall constitute a waiver of any other breach, or of such provision. Any waiver must be in writing and signed by an authorized representative of Tempest.
Seller shall not, without the prior written consent of Tempest, in any manner advertise or publish the fact that Tempest has placed this order
PATENT INDEMNITY AND USE OF PRODUCTS
(a) Seller agrees to indemnify and hold harmless Tempest, its successors, assigns and users of its goods against loss, damage or liability, including costs and expenses (including attorneys’ fees), which may be incurred on account of any suit, claim, judgment, or demand involving infringement or alleged infringement of any patent rights in the manufacture, use or disposition of any article or material hereunder, provided Tempest shall notify Seller of any suit instituted against it and to the full extent of its ability to do so, shall permit Seller to defend the same or make settlement in respect thereof. (b) Seller hereby grants to Tempest the right and license without further consideration to utilize any of Seller’s patents, inventions or information, embodied in, which form a part of or involves the use of the goods and/or services which are the subject matter of this order.
DEFAULTS & EXCUSABLE DELAYS
(a) Time is of the essence with respect to this purchase order, and Tempest reserves the right to cancel all or any part of the undelivered portion of this purchase order in the event Seller fails to perform any of the provisions of this purchase order, or fails to make progress so as to endanger performance of this purchase order in accordance with its terms, or if deliveries are not made within specified times. Tempest shall also have the right to cancel this purchase order or any part thereof if Seller becomes insolvent or if a bankruptcy petition is filed which is not vacated within thirty (30) days from the date of filing. Except with respect to defaults of its subcontractors (including lower-tier subcontractors), Seller shall not be liable for damages if the delay or failure to perform this purchase order arises out of causes beyond the control and without the fault or negligence of Seller, such as acts of God or the public enemy, fires, floods, strikes, freight embargoes, or acts of the Government in either its sovereign or contractual capacity; but in every case the failure to perform must be beyond the control and without the fault or negligence of Seller. If the failure to perform is caused by the default of a subcontractor, and if such default arises out of causes beyond the control of both Seller and the subcontractor, and without fault or negligence of either of them, Seller shall not be liable for damages suffered by Tempest. Seller must notify Tempest in writing within ten (10) days after the beginning of any such cause that may delay performance under the purchase order. (b) In the event Tempest terminates this order in whole or in part as provided in this paragraph, Tempest, in addition to any other rights it may have by law, may procure, upon such terms and in such a manner as Tempest may deem appropriate, goods or services similar to those so terminated, and Seller shall be liable to Tempest for any excess costs for such similar goods or services; provided, however, that Seller shall continue the performance of this order to the extent not terminated under the provisions of the preceding subparagraph. (c) If after notice of termination of this order under the provisions of this paragraph, it is determined that Seller’s failure to perform this order is due to causes beyond the control and without the fault or negligence of Seller or its subcontractors, such notice of default shall be deemed to have been issued pursuant to paragraph 9 of this order entitled “Termination for Convenience,” and the rights and obligations of the parties hereto shall in such event to be governed by said paragraph.
RISK OF LOSS; IDENTIFICATION OF GOODS; INSURANCE
The risk of loss for all goods ordered hereunder shall be borne by Seller until such goods are delivered to and received and inspected by Tempest at the place specified on the face of the purchase order. Goods ordered hereunder shall be deemed identified as goods to which this purchase order refers at the time such goods are actually in existence and in the possession of Seller, its successors, assigns or agents. Seller agrees to carry fire insurance and all other insurance necessary to protect Tempest from loss of goods in which Tempest has an interest or title while the same are in the custody or possession of Seller. Copies of policies or certificates of such insurance will be furnished to Tempest on request.
Seller shall indemnify and hold Tempest harmless against all expenses (including attorneys’ fees), claims, damages, demands, losses or liabilities arising out of Seller’s breach in the performance of this purchase order. In furtherance of the foregoing indemnity and not in limitation thereof, Seller agrees that: (a) Tempest shall be entitled to all incidental damages resulting from a breach by Seller, including, but not limited to, all expenses reasonably incurred in inspection, receipt, transportation, care and custody of goods rightfully rejected, any commercially reasonable charges, expenses or commissions incurred in effecting cover, and any other reasonable expense incident to a delay or breach by Seller; and (b) Tempest shall also be entitled to consequential damages resulting from a breach by Seller for any loss resulting from general or particular requirements and needs of Tempest of which Seller is aware at the time of executing this purchase order, and which reasonably cannot be prevented by cover or otherwise, and damages sustained by Tempest from any injury to person or property proximately resulting from any breach of warranty by Seller. This indemnification shall be in addition to the warranty obligations of Seller. Seller shall maintain such general liability insurance, including products liability, completed operations, contractors liability and protective liability, automobile liability insurance (including non-owned automobile liability), workers’ compensation and employer liability insurance as will adequately protect Tempest against such damage, liabilities, claims, losses, demands and expenses (including attorneys’ fees). Seller agrees to submit to Tempest certificates of insurance evidencing such insurance coverage when requested by Tempest.
APPLICABLE LAW; DISPUTES
This purchase order and the rights and obligations of the parties hereunder or arising out of the purchase and sale of the goods pursuant hereto shall be governed and construed in accordance with the laws of the State of California, excluding conflict of law provisions. Any controversy or claim arising out of or relating to this purchase order or a breach thereof shall be settled by arbitration in Santa Barbara, California, in accordance with the Rules of the Judicial Arbitration Mediation Service (“JAMS”). Any award or decision obtained from any such arbitration proceeding shall be final and binding on the parties, and judgment on any award thus obtained may be entered in any court having jurisdiction thereof. The arbitrator(s) shall have the right to award any form of relief; provided, however, that the arbitrator(s) shall not have authority to award punitive damages. The cost of the arbitration shall be borne equally by the parties and each party shall be responsible for payment of its own attorneys’ fees, expert witness fees and other expenses incurred in connection with the arbitration. In the event JAMS is not available to conduct the arbitration, the arbitration shall be conducted by the Tempest Arbitration Association in accordance with its Rules for Commercial Arbitration then in effect. In the event any action is instituted to enforce or interpret this purchase order or arising out of this purchase order, the prevailing party shall be entitled to all costs and legal expenses including, without limitation, reasonable attorneys’ fees, expert witness fees, accountants’ fees and court costs.
TERMINATION FOR CONVENIENCE
Tempest reserves the right to terminate this purchase order or any part thereof for its sole convenience. In the event of such termination, Seller shall immediately stop all work hereunder, and shall immediately cause any of its suppliers or subcontractors to cease such work. Seller shall be paid a reasonable termination charge consisting of a percentage of the order price reflecting the percentage of the work performed prior to the notice of termination, plus the actual direct costs of Seller resulting from termination. Seller shall not be paid for any work done after receipt of the notice of termination, nor for any costs incurred by Seller’s suppliers or subcontractors which Seller could reasonably have avoided. Nothing in this provision shall limit Tempest’s rights to terminate this purchase order for default of Seller.
LIMITATION ON TEMPEST’S LIABILITY
In no event shall Tempest be liable for anticipated profits or for incidental or consequential damages. Tempest’s liability on any claim of any kind for loss or damage arising out of or in connection with or resulting from this purchase order or for the performance or breach thereof by Tempest shall in no case exceed the price allocable to the goods or unit thereof which gives rise to the claim. Tempest shall not be liable for penalties of any description. Any action resulting from any breach on the part of Tempest hereunder must be commenced within one (1) year after the cause of action has accrued.
Warranty will last for the duration that has been specified on the face of the PO and will commence on the date Buyer receives the equipment, Seller warrants the goods delivered hereunder to be of merchantable quality, fit for the purpose intended, free from defects in labor, material and manufacture, and in compliance with any specifications incorporated or referenced herein. Seller warrants that it has free and clear title of the equipment and that there are no encumbrances of any type regarding the sale of this equipment. Without Tempest’s written consent, no materials may be substituted in lieu of those specified. All warranties shall run to Tempest, its successors, assigns, and customers and to the users of its products. Seller agrees that this warranty shall survive acceptance of the goods. Said warranties shall be in addition to any warranties of additional scope given to Tempest by Seller and those implied by law.
Taxes -All sales, use, excise or similar taxes applicable to this transaction shall be paid by Seller, except as specifically provided in this purchase order. All sales, use, excise or similar taxes to be paid by Tempest must be itemized separately in this purchase order and on invoices. Shipment – Seller shall enclose a packing slip with each shipment. The packing slip shall indicate the contents of each container, excluding prices. On shipments without a packing slip, Tempest’s count or weight shall be conclusive. Tempest’s order number, Seller’s name, packing slip number, piece number and other identification as Tempest shall require shall appear on all containers, invoices, correspondence, bills of lading and other shipping papers, and where Seller and shipper are not the same, the names of both shall be shown thereon. Seller shall not make any COD shipments unless requested by Tempest or issue drafts against this purchase order. Unless provided herein, no charge shall be made for boxing, crating, handling, carting, drayage, storage or other packing requirements. All goods shall be packed, marked and prepared for shipment in the manner which is (a) in accordance with good commercial practice, (b) acceptable to common carriers for shipment at the lowest rate for the particular goods and in accordance with the applicable delivery requirements, and (c) adequate to insure safe arrival of the goods at the named destination. Seller shall mark all containers with the necessary lifting, handling and shipping information. No partial or complete delivery shall be made prior to the delivery date shown on this purchase order, unless Tempest has given its prior written consent thereto, nor shall deliveries exceed the quantities specified. Unless provided otherwise in this purchase order, goods ordered shall be delivered on an FOB destination basis to Tempest’s designated plant or plants. If, in order to comply with Tempest’s required delivery date, it becomes necessary for Seller to ship by a more expensive method than specified in this purchase order, any increased transportation costs resulting there from shall be paid by Seller, unless the necessity for such rerouting or expedited handling has been caused by Tempest. Extras – Goods in excess of, or different from, those ordered by Tempest and unauthorized advanced shipments may be rejected by Tempest and returned, or held subject to Seller’s disposal at Seller’s risk and expense. When part of an order is rejected, the acceptance or rejection of the remainder of the order is a matter within Tempest’s sole determination.
This purchase order, and any documents referred to on the face hereof, constitute the entire agreement between Tempest and Seller with respect to the subject matter hereof. This purchase order may be amended only in a writing signed by authorized representatives of the parties. No course of prior dealings between Tempest and Seller and no usage of trade shall be relevant to supplement any term used in this purchase order. Acceptance or acquiescence in a course of performance rendered under this purchase order shall not be relevant to determine the meaning of this purchase order, even though the acquiescing party has knowledge of the nature of the performance and opportunity for objection.