AMPG is only willing to purchase product under the terms set forth herein. Accordingly, these Purchase Order Terms and Conditions (“Agreement”) supersede all previous agreements between the Seller and AMPG. This Agreement does not constitute an acceptance of any offer or quote from Seller. Instead, Seller agrees to provide the products, services, warranties, scope of work, and product support, hereinafter collectively referred to as “Goods” in accordance with the terms of this Agreement.
Upon acceptance of this Purchase Order, Seller shall be bound by this Agreement, including all provisions set forth in the Purchase Order, whether Seller acknowledges or otherwise signs this Agreement or the Purchase Order, unless Seller and AMPG agree in writing to the contrary prior to Seller’s shipment of Goods. In the event there is a conflict between this Agreement and AMPG’s Purchase Order, the terms and conditions of this Agreement control.
This Agreement may not be added to, amended, modified, superseded, or otherwise altered, except if agreed to in writing by an authorized representative of AMPG. Any of the following acts shall constitute acceptance of this Purchase Order and Agreement: signing and returning a copy of the Purchase Order; delivery of any of the Goods ordered; or returning Seller’s own version of an Order Acknowledgement. Any additional term, provision, warranty, or condition in Seller’s Order Acknowledgement which is in addition to or different from the terms of this Agreement or Purchase Order shall be deemed to be a material alteration of the Agreement and Purchase Order and is hereby objected to and rejected by AMPG. Any such term, provision, or condition shall be totally inapplicable to this Purchase Order and Agreement unless specifically agreed to in writing by an authorized representative of AMPG.
Delivery – Delivery of Goods shall be made pursuant to the provisions set forth in the Purchase Order. In the event that Seller fails to deliver the Goods within the time specified, AMPG may, at its sole option, decline to accept the Goods and terminate the Purchase Order and this Agreement.
Packaging – Seller shall package all items in suitable containers to permit safe transportation and handling, and to insure that Goods arrive at AMPG’s facility in good and resalable condition. Seller shall legibly and prominently place the AMPG purchase order number on all shipping containers, packing sheets, bills of lading, and delivery tickets. Seller shall legibly and prominently place its lot number for each production lot on each shipping container, and individual lots shall be segregated from one another in a manner that prevents co-mingling of lots during transportation.
Title – Title of the Goods shipped under this Purchase Order shall pass to AMPG in accordance with the shipping terms specified in the Purchase Order. In the event shipping instructions are not provided in the Purchase Order, please contact AMPG Purchasing Department for proper instruction.
Payment- AMPG shall pay Seller the amount agreed upon and specified in the Purchase Order. Payment shall not constitute acceptance of the Goods. Unless otherwise specified in the Purchase Order, AMPG shall pay the invoiced amount within forty-five (45) days of receipt of a correct invoice.
Warranties- Seller warrants that all Goods provided will be new and not be used or refurbished. Seller warrants that all Goods shall be free from defects in materials and workmanship and shall conform to all applicable specifications. All warranties shall be construed as conditions as well as warranties and shall not be exclusive. Seller shall furnish to AMPG Seller’s standard warranty and service guarantee applicable to the Goods. If AMPG identifies a defect or warranty problem during the warranty period, AMPG will promptly notify the Seller of such problem and will return the Goods to Seller, at Seller’s expense. Seller shall be responsible to reimburse AMPG for any and all costs associated with defects, including but not limited to inspection; sorting; storage; testing; transportation of defective parts between AMPG and its customers; transportation of defective parts between AMPG and Seller; and/or transportation of replacement parts between AMPG and its customers. Furthermore, Seller shall be liable for all costs of recalls, reworking fines, penalties, notices, advertisements or any and all other costs associated with the shipment, release, use, assembly, or rework of defective products from Seller. In addition, Seller shall be liable for all fees, liabilities, damages, and other amounts assessed by customers of AMPG related to defective Goods or breaches of the warranties contained herein. Seller hereby acknowledges and agrees and hereby grants AMPG a right of offset to set off any claims or costs associated with defective products as described herein, against amounts due from AMPG to Seller for non-defective products, even if purchased under different purchase orders. Seller shall, at AMPG’s option, either repair or replace defective Goods, or credit AMPG’s account for the same. Replacement and repaired Goods shall be warranted for the remainder of the warranty period, or six months, whichever is longer.
Inspection- AMPG shall have a reasonable time after receipt of Goods, and before payment to inspect them for conformity, and Goods received prior to inspection shall not be deemed accepted until AMPG has inspected goods to determine whether the Goods conform to the specifications hereof. Use of a portion of the Goods for the purpose of testing shall not constitute an acceptance of the Goods. If Goods tendered by Seller do not wholly conform to the provisions hereof, AMPG shall have the right to reject such Goods. Non-conforming Goods will be returned to Seller freight collect and risk of loss shall pass to Seller upon AMPG’s delivery to the common carrier.
Compliance- Seller warrants, and upon request shall certify, that (i) it and the Goods furnished hereunder comply with all applicable United States, federal, state, and local laws, executive orders, and rules and regulations (including without limitation environmental laws) and (ii) the Goods were produced and delivered in accordance with the Fair Labor Standards Act 1938, as amended, and all regulations and orders issued thereunder or relating thereto (including without limitation relative to equal employment opportunity).
Environmental and Safety- Seller warrants that Goods conform to the Federal Hazardous Substances Act as amended, and the Toxic Substances Control Act of the U.S. Environmental Protection Agency, as amended. Seller further agrees to provide Material Safety Data Sheets (“MSDS”) as required by law with each shipment of the Goods, or to have available at the time of shipment on Seller’s website. Unless otherwise noted, Seller hereby warrants and acknowledges and agrees that the Goods conform to European Directive for the Restriction of Hazardous Substances, otherwise known as “RoHS”.
Indemnity- Seller shall indemnify and hold harmless, and at AMPG’s request, defend AMPG, its officers, directors, customers (including customer’s customers), agents and employees, against all claims, liabilities, damages, losses and expenses, including attorney’s fees and cost of suit arising out of or in any way connected with this Agreement, or the Goods provided under this Agreement, including without limitation, any claim by a third party against AMPG alleging (i) any defect in the Goods; (ii) a breach of any of the warranties contained in this Agreement; or (iii) that the Goods or any other products or processes provided under this Agreement , infringe a patent, a copyright, trademark, trade secret or any other proprietary right of a third party, whether provided alone or in combination with other products, software, or processes.
Confidentiality- Seller will acquire knowledge of AMPG confidential information in connection with its performance hereunder and agrees to keep such information in confidence during and following termination or expiration of this Agreement. Seller agrees to limit its internal distribution of AMPG confidential information to Seller’s Assistants who have a need to know, and further agrees not to disclose or use such information except in the course of performing hereunder and will not use such information to its own benefit or for the benefit of any third party. The Seller shall not disclose the existence of or any information concerning the Seller’s business relationship with AMPG unless required by law.
Termination- AMPG may terminate this Agreement and Purchase Order upon written notice to Seller: (i) in the event the Seller fails to perform or otherwise breaches this Agreement; or (ii) Seller files a petition for bankruptcy, becomes insolvent, or dissolves. In the event of such termination, AMPG shall pay Seller for those conforming Goods delivered to AMPG through the date of termination, less appropriate offsets.
AMPG may terminate this Agreement for any other reason upon thirty (30) days’ notice to Seller. Seller shall cease to provide Goods under this Agreement on the date of termination specified in such notice. In the event of such termination, AMPG shall be liable to Seller only for those conforming Goods delivered to AMPG through the date of termination, including unburdened cost of labor and materials in process completed prior to such cancellation notice, less appropriate offsets.
Force Majeure- AMPG shall not be liable for any failure to perform including failure to take delivery of the Goods as provided caused by circumstances beyond its control, which make such performance commercially impractical, including but not limited to acts of God, fire, flood, acts of war, government action and accident. In the event AMPG is so excused, either party may terminate the Agreement, and AMPG at its expense and risk, may return any Goods received to the place of shipment.
Severability- If any provision of this Agreement is deemed invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Limitation of Liability- IN NO EVENT SHALL AMPG BE LIABLE TO SELLER OR SELLER’S ASSISTANTS, OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH, THIS AGREEMENT WHETHER OR NOT AMPG WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AS SELLER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE FULL EXTENT OF AMPG’S LIABILITY UNDER THIS AGREEMENT AND PURCHASE ORDER IS THE AMOUNT LISTED ON THE PURCHASE ORDER FOR THE GOODS SUPPLIED BY SELLER.
Assignment, Waiver, Cumulative Rights- Seller may not assign this Agreement or any of its rights or obligations under this Agreement, without the proper written consent of AMPG. Any assignment or transfer without such written consent shall be null and void. This Agreement shall inure to the benefit of, and be binding upon, the successors and assigns of AMPG without restriction. A waiver of any default hereunder or any term or condition of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or other term or condition. The rights and remedies herein provided to AMPG shall be cumulative, as to one another, and shall be in addition to any other rights and remedies provided by law or equity.
Governing Law- This Agreement and Purchase Order and any contemporaneous or subsequent agreement and any claims between the parties arising under contact, tort, equity, fraud, statute, or otherwise shall be governed by the substantive laws of the State of Indiana without regard to its choice or conflicts of law provisions. Seller agrees that AMPG may bring any claims, actions, or proceedings against Seller in the state courts of the State of Indiana in Marion County; the federal courts located in the Southern District of Indiana (such state and federal courts, collectively, the “Indiana Courts”); or, at AMPG’s sole discretion, any other court where jurisdiction and venue is proper. Seller hereby (i) agrees to bring any claims, actions, or proceedings against AMPG only in the Indiana Courts, and (ii) submits to the jurisdiction of the Indiana Courts, and, at AMPG’s sole discretion, any other court where jurisdiction and venue is proper. Seller hereby irrevocably and unconditionally waives any objection that Seller may now or hereafter have to the venue of any such claims, actions, or proceedings, including any claim that such court is an inconvenient forum, and consents to service of process provided the same is in accordance with the terms hereof. Final judgment in any such action or proceeding may be enforced in other jurisdictions by suit on the judgment or as otherwise permitted by law. AMPG and Seller (by its acceptance hereof) hereby voluntarily, knowingly, irrevocably, and unconditionally waive any right to have a jury participate in resolving any dispute between Seller and AMPG arising out of or related to this Agreement. This provision is a material inducement to AMPG to purchase Goods from Seller
Entire Agreement- This Agreement is the complete, final, and exclusive statement of the agreement between the parties and supersedes any and all other prior and contemporaneous negotiations and agreements, whether oral or written, between them relating to the subject matter hereof. The terms and conditions of this Agreement shall prevail notwithstanding any variance with the terms and conditions of any acknowledgement or other document submitted by Seller.