PO Terms

Terms and Conditions of Purchase Fireye ("Buyer")   I Acceptance of Contract I Buyer shall not be bound by any order until Seller executes and returns to Buyer an acknowledgement copy of Buyer's order or when Seller delivers to Buyer any of the goods ordered therein or renders for Buyer any of the services ordered therein. Seller shall be bound by Buyer's order and these terms and conditions when it executes and returns the order acknowledgement copy, when it otherwise indicates its acceptance of Buyer's order, or when it delivers to Buyer any of the goods ordered therein or renders for Buyer any of the services ordered therein. BUYER'S ORDER EXPRESSLY LIMITS ACCEPTANCE TO THE TERMS AND CONDITIONS STATED HEREIN AND ON THE FACE SIDE OF BUYER'S ORDER, AND ANY ADDITIONAL OR DIFFERENT TERMS PROPOSED BY SELLER ARE REJECTED UNLESS EXPRESSLY ASSENTED TO IN WRITING BY BUYER, NO CONTRACT SHALL EXIST EXCEPT AS HEREINABOVE PROVIDED. I Amendments I The parties agree that Buyer's purchase order, including the terms and conditions thereof and hereof together with any documents attached to such order or incorporated therein by reference, contains the complete and final contract between Buyer and Seller, that no agreement or understanding to modify such contract shall be binding upon Buyer unless in writing and signed by Buyer's authorized representatives. All specifications, drawings and data submitted to Seller with Buyer's order or referred to by Buyer's order are hereby incorporated to Buyer's order and made a part of such contract. I Changes I The Buyer reserves the right at any time to make written changes in any one or more of the following: (a) specifications, drawings and data incorporated in it's order where the items to be furnished are to be specially manufactured for the Buyer; (b) methods in shipment or packing; (c) place of delivery; (d) time of delivery; (e) manner of delivery and (f) quantities. If any such change causes an increase or decrease in the cost of, or in the time required for performance of such order, an equitable adjustment shall be made in the contract price, or delivery schedule, or both. Any claim by Seller for adjustment under this clause must approved by Buyer in writing before Seller proceeds with such change. Price increases shall not be binding on Buyer unless evidenced by a purchase order, change notice, or revision issued and signed by Buyer. I Delivery I Unless otherwise indicated on the face of Buyer's order, delivery of the goods ordered by Buyer shall be F.O.B. buyers place of business. Title and risk of loss with respect to such goods shall not, however, pass to Buyer unless and until Buyer has accepted the goods and inspected them to Buyer's satisfaction. All freight charges must be supported with the original receipted freight bill. Time is of the essence in Buyer's contract with Seller, and if delivery of goods is not made in the quantities and at the times specified, or rendering of services is not completed at the times specified, Buyer reserves the right without liability, and in addition to its other rights and remedies, to take either or both of the following actions: (a) direct expedited routings of goods (in which case any excess costs incurred by reason of the expedited routing shall be paid by the Seller) and (b) terminate such contract by notice effective when received by Seller as to stated goods not yet shipped or services not yet rendered (in which case Buyer may purchase substitute goods or services elsewhere and charge Seller for the excess cost of such substitute goods and services and for any other losses buyer may incur). Seller shall be liable for excess transportation charges, delays or claims resulting from Seller's deviation from Buyer's routing instructions. Neither party shall be liable for excess costs of deliveries or defaults due to causes beyond its control and without its fault or negligence; provided, however, that when Seller has reason to believe that deliveries may not be made as scheduled (specifically including any actual or potential labor disputes), Seller shall give written notice immediately to Buyer setting forth the cause of the anticipated delay. If Seller's delay or default is caused by the delay or default of a subcontractor, such delay or default shall be excusable only if (a) it arose out of causes beyond the control of both Seller and subcontractor and without the fault or negligence of either of them and (b) the goods to be furnished or service to be rendered under the subcontract were not obtainable from other sources in sufficient time to permit Seller the required delivery or performance schedule. Buyer shall have no liability for goods delivered to Buyer which are in excess of quantities specified in its order and delivery schedules. Such goods shall be subject to rejection and return at Seller's expense, including transportation charges both ways. Buyer will not be liable for any material or production cost incurred in excess of the amount or in advance of the time necessary to meet Buyer's delivery schedules. With respect to any goods (or components within such goods) that may be hazardous, Seller shall clearly identify such danger on the external packaging for such goods (and list any appropriate special shipping requirements) and shall provide Buyer (along with the goods) with warning and instruction materials appropriate to warn of the hazard, explain its potential effects and specify the proper manner for handling and using the material. Invoices should be mailed to Buyer in duplicate, showing the purchase order number and with bill of lading, to FIREYE Inc., 3 Manchester road, Derry, NH 0308. All other correspondences from Seller to Buyer should be sent as provided in Article 27. I Inspection and Acceptance I Payment for any goods under Buyer's order shall not constitute acceptance thereof. All goods purchased thereunder are subject to inspection at buyer's destination either before or after payment and either before or after acceptance in each case in Buyer's option. In addition, Buyer shall have the right to inspect and test the materials, workmanship and performance of all ordered goods during its manufacture, and if any such inspection or test is made upon the premises of Seller or its suppliers, then Seller or its suppliers shall furnish Buyer, without additional charge, reasonable facilities and assistance to allow a safe and convenient inspection and test. Buyer reserves the right to reject and refuse acceptance of goods which are not in accordance with the instruction, specifications, drawings and data or Seller's warranties (express or implied). Buyer may reject an entire shipment if a sample inspection discloses that the goods inspected are not in accordance with the instructions, specifications, drawings, data or warranties, unless Seller agrees to reimburse Buyer for the cost of a complete inspection of such shipment. Goods not accepted will be returned to Seller for full refund, credit or replacement at Buyer's option and at Seller's risk and expense, including transportation charges both ways. No replacement of rejected goods shall be made unless specified by Buyer in writing. Buyer shall not be liable for failure to accept any part of the goods, if such failure is the result of any cause beyond the control of the Buyer. Among such causes, but not definitive thereof, are fires, floods, acts of God, strikes, differences with employees, casualties, delays in transportation, shortages of cars, inability to obtain necessary materials or machinery or total or partial shutdown of Buyer's plant for any cause. Acceptance of any part of the goods shall not be bind to Buyer to accept futures shipments, nor derive it of the right to return goods already accepted. None of the provisions hereof dealing with the acceptance or inspection shall result in a waiver of Buyer's right either to cancel or to return all or any portion of the goods because of failure to conform to Buyer's contract with Seller, or by reason of defects, latent or patent, or other breach of warranty. In addition to Buyer's right to cancel or return such defective goods, Buyer may make any claim for damages, including manufacturing costs, damage to materials, or articles caused by improper boxing, crating, or packing and loss of profits or other damages occasioned the Buyer. Furthermore, Buyer specifically reserves the right to rework any such defective goods at its own facilities and to charge the costs of such reworking against Seller. Such rights shall be in addition to any other remedies provided by law. I Packing, Drayage, and Containers I No charges for packing, drayage or containers will be allowed unless specified on the face of Buyer's order, or specifically listed as an additional and separate charge on Seller's quotation and acceptance of Buyer's order. Seller shall be liable for damage to materials or articles described therein caused by improper boxing, crating or packing. I Seller's Price Warranty I Except as otherwise indicated through quotation or other discount, prices for goods or services purchased under Buyer's order shall be such prices of Seller which are in effect at the time Buyer submits its order and not at the time of delivery or any other time in the future. Seller warrants (both at the time of order and the time of delivery or performance) that the prices for the goods or services sold to Buyer hereunder are no less favorable than Seller currently extends to any other customer for the same or similar goods or services in similar quantities. If Seller reduces its prices to others for such goods or services at any time prior to delivery or performance, Seller will reduce the prices to Buyer for such goods or services correspondingly. Seller warrants that no additional charges of any type will be added without Buyer's express written consent. I Seller's Warranties I Seller warrants that it has all right, title and interest in and to all goods to be sold to Buyer, free and clear of all liens, encumbrances and interests of any other party, and that such goods shall be sold to Buyer free and clear of all liens, encumbrances and interests of any other party. Buyer may withhold payment pending receipt of evidence reasonably satisfactory to Buyer of the absence of any such liens, encumbrances and interests. Seller hereby further warrants that the whole of the goods furnished to Buyer shall be of merchantable quality, that they shall conform with Buyer's instructions, specifications, drawings, and data and that they do not infringe any rights of any third parties relating to patents, trademarks, design or appearance. When Seller has knowledge of the particular purpose for which such goods are purchased, Seller also warrants that they will be fit for such purposes. Seller hereby further warrants that the whole of the goods furnished hereunder shall conform to all representations, affirmations, promises, descriptions, samples or models forming the basis of its contract with Buyer. Seller agrees that these warranties shall survive acceptance of the goods. Seller further warrants that all services performed for or on behalf of Buyer will be performed in a competent, workmanlike manner, shall be free from faults and defects, and shall conform to all of Buyer's instructions, specifications and directions. Upon any breach of warranty, in addition to any rights granted to Buyer hereunder as a result of any goods sold by Seller not conforming to these terms, Buyer may require Seller to, at Buyer's election but at Seller's expense, repair or replace any such defective goods. Said warranties shall be in addition to any warranties of additional scope given by Seller to Buyer. All such warranties shall run to Buyer, its successors and assigns, its customers and the end users of an of the goods sold to Buyer. Seller agrees that, in connection with installation and commencement of operation of the goods sold to Buyer, Buyer (or its designee) may repair or replace any defective part of such goods without thereby voiding any of the Seller's warranties. NONE OF SAID WARRANTIES AND NO OTHER IMPLIED OR EXPRESS WARRANTIES SHALL BE DEEMED DISCLAIMED OR EXCLUDED UNLESS EVIDENCED BY A PURCHASE ORDER CHANGE NOTICE OR REVISION ISSUED AND SIGNED BY BUYER. I Property of Buyer I Unless otherwise provided in Buyer's order or agreement to in writing, Buyer shall retain title to property (and replacement thereof) of every description, including but not limited to all tooling, tools and equipment, which are furnished or made available to Seller by Buyer, or paid for by Buyer. All such property (other than materials) shall not be modified without the written consent of Buyer. Such property shall be plainly marked or otherwise adequately identified by Seller as "Property of FIREYE Inc." and shall be safely stored separately and apart from Seller's property. Seller shall not use such property except for performance of work hereunder or as authorized in writing by Buyer. Such property while in Seller's possession or control shall be kept insured by Seller, at its expense in an amount equal to the replacement cost with loss payable to Buyer. To the extent such property is not material consumed in the performance of Buyer's order, it shall be subject to inspection and removal by Buyer and Buyer shall have the right to entry for such purposes without incurring any additional liability whatsoever to Seller. As and when directed by Buyer, Seller shall disclose the location of such property and/or prepare it for shipment and ship it to Buyer in as good condition as originally received by Seller, reasonable wear and tear excepted. I Special Tooling I The term "special tooling" as used in this clause shall be deemed to include all jigs, dies, fixtures, molds, patterns, special cutting tools, special gauges, special test equipment, other special equipment and manufacturing aids and drawings and any replacements of the foregoing, acquired or manufactured or used in the performance of Buyer's order, which are of such a specialized nature that, without substantial modification or alteration, their use is limited to the production of the supplies ordered thereunder or parts thereof or to the performance of the services of the type required by such order. The term does not include (a) items of tooling or equipment thereafter acquired by Seller, or replacement thereof, whether or not altered or adopted for the use in the performance of such order, (b) consumable small tools, (c) general or special machine tools or similar capital items, or (d) tooling, title to which is in Buyer. I Proprietary Rights I Buyer specifically reserves the right to review and approve any and all designs, blueprints, specifications and engineering data used by Seller in manufacturing the products to be purchased hereunder. Seller agrees to provide Buyer, at Buyer's request, with copies of any such designs, blueprints, specifications and engineering data. All technical information the nature of designs, blueprints, specifications and engineering data for production or product know-how, which is supplied to Seller by Buyer to facilitate or assist in the performance of the contract between Seller and Buyer, shall unless otherwise agreed, be considered and kept confidential by Seller, and Seller will use and cause its employees and agents to use extreme caution not to disclose any such information in any way or to use it in manufacturing products for others. Additionally, Seller agrees to assign Buyer and not otherwise to make use of any invention, improvement or discovery (whether or not patentable), conceived or reduced to practice in the performance of such contract by any employee of Seller or other person working under Seller's direction, and such assignment shall be considered as additional consideration for the making of such contract. Upon completion of performance of such contract, Seller shall deliver to Buyer any and all information relating to any such invention, improvement or discovery, and shall cause employees or others subject to Seller's instructions to sign as appropriate all documents necessary or convenient to enable Buyer to file applications for patents throughout the world and to obtain title thereto. Seller will not, without the prior written consent of Buyer, in any manner publish the fact that Seller has furnished or contracted to furnish Buyer goods and/or services, or use the name or trademarks of Buyer or its products in Seller's advertising or other publications. If Seller places on the goods a trademark or a trade name for the Buyer, Seller acknowledges that all brand names, trade names and trademarks incorporated onto or associated with the products (collectively, the "Marks") purchased by Buyer are the exclusive property of Buyer and that Seller will not acquire any rights in any of the Marks by manufacturing and selling the products for Buyer. Seller shall not make any use of the Marks at any time except as otherwise authorized in writing by Buyer. Any knowledge or information Seller discloses to Buyer in connection with any purchases hereunder shall not, unless otherwise specifically agreed to in writing by Buyer, be deemed to be confidential or proprietary information, and shall be acquired by Buyer free from any restrictions as to the use thereof (other than a claim for patent infringement) as part of the consideration for the contract between Buyer and Seller. I Patent Indemnity Clause I Seller agrees, upon receipt of notification to promptly assume full responsibility for the defense of any suit or proceeding which may be brought against Buyer or any of its parents, subsidiaries, constituent companies, agents or vendees for alleged patent infringement, us well as for the alleged unfair competition resulting from similarity in design, trademark, or appearance of goods, by reason of the use or sale of any goods furnished by Seller, except for goods manufactured entirely to Buyer's specifications: and Seller further agrees to indemnify and hold Buyer harmless against any and all expense, loss, royalties, profits and damages, including court costs and attorneys' fees, resulting from the bringing of such suit or proceedings, including any settlement or decree or judgement entered therein. Buyer may be represented by and actively participate through its own counsel in any such suit or proceedings, if it so desires. Seller's obligations hereunder shall survive acceptance of the goods and payment therefor by Buyer. I Indemnification I Seller further agrees to indemnify and hold Buyer harmless from any and all losses, liabilities, damages, claims, demands, suits, actions, proceedings, subrogations and expenses, including court costs and attorneys' fees, growing out of or related in any way to the contract between Seller and Buyer (or the performance thereof) or the services performed or goods delivered under such contract, including without limitation claims for injuries or damages to any person or property, except for claims made with respect to the design of goods manufactured entirely to Buyer's specifications. Seller further agrees upon receipt of notification to promptly assume full responsibility for the defense of any and all such suits, actions, or proceedings which may be brought against Seller or against Buyer. In the event Buyer's machinery or equipment is used by Seller in the performance of any work that might be required under such contract, such machinery or equipment shall be considered as being under the sole custody and control of Seller during the period of such use by Seller. I Insurance I Seller will furnish Buyer with an Insurance Carrier's Certificate showing that Seller has adequate insurance coverage in the following minimum amounts: Product Liability - $ 2 million. $ 5 million aggregate General Public Liability - $ 2 million per person and $ 5 million per occurrence and - $ 5 million for properly damage Workmen's Compensation - Statutory limits for slate or states in which services, if any, are to be performed All such policies (and all certificates provided to Buyer evidencing such policies) shall list Buyer as an additional insured and shall provide that the insurer will give Buyer at least thirty (30) days prior written notice before such insurance is altered or cancelled. Said certificate must also set forth the amount of coverage, number of policy and date of expiration. If Seller is a self-insurer, the Certificate of the Department of Labor and Industry of the state of which such services, if any, are to be performed must be furnished by such Department directly to Buyer. Compliance by Seller with these insurance requirements does not in any way affect Seller's indemnification of Buyer under Article 13 above. I Cancellation at Buyer's Option I Buyer may terminate its contract with Seller at any time without cause in whole or in part by written notice to Seller, whereupon Seller will stop. work on the date and to the extent specified in such notice and terminate all orders that relate to the terminated order. Within thirty (30) days after receipt of a termination order, Seller will submit all claims resulting from such termination and Buyer will have the right to verify such claims by auditing the relevant records, facilities, work or materials of Seller. Buyer will pay Seller for finished work accepted by Buyer as well as for the documented cost to Seller of work in progress and raw material allocable to the terminated work which is not in excess of any prior authorizations of Buyer. Payment made under this Article 15 will constitute Buyer's only liability for termination hereunder, and title and right of possession to all delivered goods and services shall vest in Buyer immediately upon Buyer's tender of such payment. The provisions of this Article 15 will not apply to any cancellations by Buyer for default by Seller or for any other cause recognized by law or specified hereunder. I Cancellation Upon Seller's Default I If Seller (i) fails to deliver goods or perform services at the time specified by Buyer, (ii) fails to perform any other provisions hereof and does not cure such failure within a period of ten (10) days after receipt of written notice from Buyer specifying such failure or (iii) becomes insolvent, makes an assignment in favor of creditors or subject to proceedings relating to bankruptcy, insolvency, relief of debtors or dissolution proceedings. Buyer may cancel the whole or any part of its contract with Seller without any liability, except for payment due for goods and services delivered to and accepted by Buyer. Upon such termination, Buyer shall, upon notice to Seller, have the right to take title to and possession of all or any part of such work performed by Seller under such contract. I Remedies upon Seller's Default I If Buyer cancels its contract with Seller under Article 16. then Buyer shall be entitled to payment from Seller for any and all damages (both consequential and special), including without limitation lost profits and any additional expenses incurred by Buyer in procuring substitute goods, resulting from such cancellation for default. Buyer's rights herein are in addition to and not in lieu of any other remedies which Buyer may have under such contract or in law or equity. I Right of Setoff I Buyer specifically reserve the right, in its sole discretion, to setoff against amounts to be paid by Buyer to Seller under its contract with Seller, any amounts which Seller may owe to Buyer, whether by way of credit, indemnification or otherwise, and whether pursuant to such contract or any other agreement between Buyer and Seller. I Limitation of Buyer's Liability I In the event of a breach by Buyer of any provision of its contract with Seller by reason of failure to make payment when due or to accept delivery of the goods or otherwise, Buyer shall be liable only for the direct and documented costs actually incurred by Seller. IN NO EVENT SHALL BUYER'S LIABILITY EXCEED THE PURCHASE PRICE OF THE GOODS TO BE PURCHASED THEREUNDER, AND IN NO EVENT SHALL BUYER BE LIABLE FOR CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND WHATSOEVER. I Notice to Buyer I Seller agrees that, if, within three years of delivery of the goods ordered by Buyer, Seller agrees to either (i) discontinue production of such goods or (ii) destroy or transfer to a third party any of the tooling or equipment owned by Seller that is necessary for the production of such goods. Seller will give Buyer at least 180 days prior written notice of such decision during which time Seller will accept orders from Buyer for a reasonable quantity of such goods. I Compliance with Applicable Laws I Seller agrees that, in the performance of its contract with Buyer, it will comply with all applicable laws, statutes, rules, regulations or orders of the United States government or of any stat or political subdivision thereof. Without limiting the generality of the foregoing, Seller agrees that it will include on all invoices, and that all invoices in order to be approved for payment must include the following statement: "Seller represents that, with respect to the production of the goods covered by this invoice, it has Fully complied with all provisions of the Fair Labor Standards Act of 1938, as amended." I Waiver I The failure of Buyer to insist, in any one or more instances upon the performance of any of the terms, covenants or conditions of its contract with Seller or to exercise any right thereunder, shall not be construed as a waiver or relinquishment of the future performance of any such terms, covenants or conditions of or the future exercise of such right, but the obligation of Seller with respect to such future performance shall continue in full force and effect. I Assignment I None of the sums due or to become due nor any of the work to be performed under the contract between Seller and Buyer shall be assigned nor shall Seller subcontract any of the work o be performed under such contract (other than the purchase of standard commercial supplies or raw materials) without Buyer's prior written consent. I Severability I In the event any provision herein should be held unenforceable by a court of competent jurisdiction, such court is hereby authorized to amend such provision so that it will be enforceable to the fullest extent permitted by law, and all remaining provisions shall continue in full force without being affected, impaired or invalidated thereby in any way. I Jurisdiction I Seller hereby consents to the jurisdiction of any local, state or federal court located in the state of New Hampshire, for the purposes of enforcing an arbitration award or otherwise under its contract with Buyer, and hereby waives personal service of process and agrees that all such service of process may be made by registered or certified mail directed to the address set forth on the face of Seller's invoice. Such local, state or federal court located in the state of New Hampshire shall have exclusive jurisdiction under such contract. I Governing Law I The contact between Seller and Buyer shall be governed and interpreted in accordance with the laws of the state of New Hampshire, without giving effect to the choice of law provisions of such jurisdiction. The provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply to such contract. I Notices I Any and all notices required under the contract between Seller and Buyer shall be in writing, shall include the purchase order number and shall be deemed given on (i) the date on which the same is hand delivered, (ii) one business day after either deposit with a nationally recognized overnight courier service or transmission by telecopy (with a printer confirmation of transmission) or (iii) three business days after deposit in the Uniter States mail, first class postage prepaid, addressed, in any case, to such party at the address (or telecopy number) set forth in Buyer's order, or at such other address (or telecopy number) as may be given in such manner.