USAAny offer by FUJIFILM (“Buyer”) for goods, materials, and/or equipment (the “Goods”) and/or services, maintenance and/or repair (the “Services”), whether in hard copy, or by electronic transmission, telephone or other means, (the “Offer”), not otherwise subject to a specific written purchase agreement between Buyer and Vendor, shall be subject to and incorporate the following terms and conditions (together with the Offer, the “Purchase Order”). In the event Goods are shipped domestically and there is an inconsistency between Sections 1 through 17 and Sections 18 through 28, the terms and conditions of Sections 1 through 17 shall govern. If any section of this Purchase Order is held to be invalid, the remaining provisions of this Purchase Order shall not be impaired or affected in any way.
1. ACCEPTANCE: Vendor’s promise of shipment or shipment of the Goods or Vendor’s promise of performance or undertaking of performance of the Services, as applicable, shall constitute Vendor’s agreement that it will deliver the Goods and/or the Services, in accordance with the Purchase Order and at the price mutually agreed upon by Buyer and Vendor. Vendor agrees to follow the shipping and invoicing instructions issued by Buyer, which instructions are incorporated by reference into the Purchase Order. Acceptance is limited to the terms and conditions hereof and any different or additional terms and conditions, whether or not in Vendor’s acknowledgement or in other documents, are hereby rejected and shall be of no force or effect. THE PURCHASE ORDER AND ANY RELATED CONFIDENTIALITY AGREEMENT EXECUTED BY THE PARTIES SHALL CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE PARTIES. NO AMENDMENTS OR MODIFICATIONS SHALL BE MADE EXCEPT IN WRITING SIGNED BY BUYER AND VENDOR.
2. INSPECTION AND REJECTION: (a) Final inspection of the Goods shall be made by Buyer at the place designated by Buyer. If the Goods or the tender of delivery fails in any respect to conform to specifications or the terms and conditions of the Purchase Order or if the Goods are defective or unsuitable, or do not conform to all warranties implied by law, Buyer at its option may reject all the Goods, accept all of them, or accept any commercial unit and reject the remainder, and Vendor shall either give to Buyer a full credit or refund of the purchase price of the rejected whole or portion of the Goods or Vendor, at its expense, shall repair or replace the nonconforming Goods in accordance with Buyer’s instructions. Buyer’s expenses for inspection of the Goods found to be nonconforming shall be charged to Vendor or deducted from amounts due Vendor. Buyer’s failure to detect nonconformities in the Goods shall not affect Buyer’s remedies as to such nonconformities. Regardless of its actions, Buyer will retain all of its rights against Vendor as to such nonconformities.
(b) If the Services or the tender of delivery fail in any respect to conform to specifications, the terms and conditions of the Purchase Order or applicable industry standards or if the Services are deficient, at Buyer’s option, Vendor shall either give to Buyer a full credit or refund of the purchase price of the rejected nonconforming or deficient Services or, at its expense, shall remedy or perform the Services again in accordance with Buyer’s instructions. Buyer’s expenses for inspection of the Services found to be nonconforming or deficient shall be charged to Vendor or deducted from amounts due Vendor. Buyer’s failure to detect nonconformities or deficiencies in the Services shall not affect Buyer’s remedies as to such nonconformities and/or deficiencies. Regardless of its actions, Buyer will retain all of its rights against Vendor as to such nonconformities and/or deficiencies.
3. TITLE AND RISK OF LOSS: Unless otherwise provided to the contrary in writing by Buyer in the Offer, title to the Goods and risk of loss shall pass to Buyer from Vendor upon acceptance of the Goods by Buyer, subject to paragraph 2(a).
4. EXCESS OR PARTIAL SHIPMENTS OR PARTIAL PERFORMANCE: (a) Buyer may, but is not obligated to, accept shipments that are in excess of or less than the quantity ordered. Such shipment may be returned at Buyer’s option to Vendor at Vendor’s expense and risk. (Buyer shall have the option to call for delivery of the Goods in two or more lots, on 15 days prior written notice thereof, which shall include a schedule of deliveries.)
(b) Buyer may, but is not obligated to, accept or pay for partial performance of any of the Services.
5. WARRANTIES: Vendor warrants that all the Goods are of merchantable quality and fit for the ordinary purposes for which such Goods are used and Buyer’s intended use thereof. Vendor expressly warrants, in addition to all warranties implied by law, that the Goods and/or the Services covered hereunder, together with all related packaging, labeling and other material furnished by Vendor: (a) shall be free from defects in workmanship or materials (and from spoilage, in the case of perishable Goods), including, without limitation, such defects as could create a hazard to life or property; (b) shall strictly conform to applicable specifications, instructions, drawings, data, samples and federal, state and local laws, orders and regulations, including, but not limited to, those regarding occupational safety and health; and (c) shall not infringe or encroach upon Buyer’s or third parties’ personal, contractual, or proprietary rights. This Warranty shall survive any inspection, delivery, acceptance or payment by Buyer.
6. PATENT, TRADEMARK, TRADE NAME AND COPYRIGHT: Vendor warrants and agrees that the purchase, sale or use of the Goods or any part thereof and/or the purchase, sale, receipt or performance of the Services will not infringe on any United States or foreign patent, trademark, service mark, trade name or copyright, and Vendor undertakes to indemnify and hold Buyer and any of Buyer’s customers buying, selling, using or receiving the Goods and/or the Services harmless against and from all claims, judgments, decrees, costs and expenses, including reasonable attorney’s fees, arising with respect to any and all alleged and actual infringements. Vendor covenants that, upon Buyer’s request and at Vendor’s expense, it will defend any suit or action which may be brought against Buyer or those buying, selling, using or receiving any of the Goods and/or the Services supplied by Vendor claiming infringement of any patent, trademark, service mark, trade name, or copyright. In case the purchase, sale or use of the Goods or any part thereof and/or the purchase, sale, receipt or performance of the Services, are enjoined, Vendor, at its own expense, shall elect, with the approval of Buyer (which approval shall not be unreasonably withheld), either to: (a) procure for Buyer and its assigns and customers the right to continue to purchase, sell, use and receive said Goods or part thereof and/or the Services; (b) modify said Goods or part thereof and/or the Services so that the purchase, sale, use, receipt and/or performance, as the case may be, are no longer enjoined; or (c) refund the purchase price and transportation and installation cost, if any, of the Goods and/or the Services.
7. TERMINATION: (a) Buyer, subject to the provisions of paragraph 7(c), by written notice to Vendor, may terminate immediately all or any part of the Purchase Order in any one of the following circumstances:
i. If Vendor fails to perform any of its obligations under the Purchase Order and does not cure such failure within a period of 10 days (or such longer period as Buyer may authorize in writing) after Buyer gives Vendor notice specifying such failure; or
ii. If a petition is filed by or against Vendor under the bankruptcy laws applicable to Vendor, Vendor makes a general assignment for the benefit of its creditors, or a receiver is appointed for any property of Vendor.
Vendor also expressly agrees that time is of the essence to the Purchase Order and Vendor’s failure to meet any delivery date in the quantity or quantities specified or failure to timely perform any of the Services shall constitute material breach of the Purchase Order for which Buyer may terminate immediately all or any part of the Purchase Order.
(b) In the event that Buyer terminates the Purchase Order in whole or in part, as provided in paragraph 7(a), Buyer may procure replacements for the Goods or the Services from other sources upon such terms and in such manner as Buyer may consider appropriate. Vendor shall remit to Buyer upon demand any amounts exceeding the contract price of, and charges included in, the Purchase Order incurred by the exercise of Buyer’s rights under this paragraph, and Vendor shall continue the performance of the Purchase Order to the extent not terminated.
(c) If the Purchase Order is terminated as provided in paragraph 7(a), Buyer, in addition to any other rights provided herein, may require Vendor to transfer title and deliver to Buyer in the manner and to the extent directed by Buyer any completed Goods and such partially completed Goods and materials acquired for the performance of such part of the Purchase Order as has been terminated, and Vendor, upon Buyer’s direction, shall protect and preserve property in the possession of Vendor in which Buyer has an interest. Payment for completed Goods delivered to and accepted by Buyer shall be at the applicable contract price.
8. INDEMNIFICATION: In addition to the provisions of paragraph 6, Vendor shall indemnify and hold Buyer and any of Buyer’s customers buying or using the Goods and/or receiving the Services harmless against and from all claims, liabilities, costs, damages and assessments, including reasonable attorney’s fees, caused by or arising out of or incident to the failure of Vendor to perform its obligations imposed by the Purchase Order or by any applicable law, regulation, or order, or arising out of any use, possession, consumption, or sale of the Goods and/or any performance of the Services, including in each case, but not limited to, claims of unfair competition, bodily injury, property, or other damage, regardless of whether such claims, liabilities, costs, damages or assessments arise out of, relate to or are imposed by reason of negligence, strict liability, tort, contract, statute, ordinance, regulation, code, principle of equity or common law, or any other theory or remedy. Vendor shall obtain and maintain adequate insurance to cover its liability under the Purchase Order and shall provide copies of the applicable certificate(s) of insurance upon request of Buyer.
9. PERMITS, LICENSES, TARIFFS AND TAXES: Unless otherwise expressly agreed in writing, Vendor shall be responsible for and shall pay any and all applicable tariffs or duties imposed upon the Goods or the Services by any governmental entity and shall obtain and pay for any and all export and import licenses or permits necessary for performance of the Purchase Order. If by law, regulation, or other official rule which first becomes effective subsequent to the date of the Purchase Order there shall be any increase in any tax, duty, surcharge, import fee, or any exaction on the Goods hereunder, resale of the Goods, any component thereof, any process or labor involved therein, or any of the Services to be rendered by Vendor, Buyer, at its option, may cancel the Purchase Order as to any and all undelivered Goods or unperformed Services unless Vendor shall reimburse Buyer for the amount of the increase in any such tax, duty, surcharge, import fee, or other exaction.
10. NOTICES: Any notice, request, consent, or demand on Buyer shall be given in writing by overnight courier service, or by facsimile or e-mail, promptly confirmed by overnight courier service, to the street address designated by Buyer.
11. ASSIGNMENT: Neither the Purchase Order nor any rights or obligations hereunder shall be assigned or delegated by Vendor without the prior written consent of Buyer and any attempted assignment or delegation without such consent shall in no event relieve Vendor in whole or in part of its obligations hereunder.
12. FORCE MAJEURE: Buyer shall have the right to terminate the Purchase Order, without any liability of any kind to Vendor, at any time upon written notice to Vendor in the event that the Purchase Order is suspended for more than 30 days by reason of force majeure.
13. APPLICABLE LAW AND JURISDICTION: The Purchase Order and the rights of the parties hereunder shall be governed by and construed under the laws of the State of New York.
14. NONWAIVER: A failure by either party to enforce at any time any provision hereof shall not constitute a waiver of such provision or of the right of such party thereafter to enforce such provision.
15. DEDUCTION AND SET-OFF: Any sums payable to Vendor arising from any transaction or occurrence hereunder shall be subject to all claims and defenses of Buyer and Buyer may set-off and deduct against any such sums all present and future indebtedness of Vendor to Buyer. Buyer shall provide a copy of the deduction voucher(s) for debits taken by Buyer against Vendor’s account as a result of any returns or adjustments. Vendor shall be deemed to have accepted each such deduction unless Vendor, within 30 days following receipt of the deduction voucher, notifies Buyer in writing as to why a deduction should not be made and provides documentation of the reasons given.
16. MISCELLANEOUS: All rights granted to Buyer under the Purchase Order shall be in addition to and not in lieu of Buyer’s rights arising by operation of law. Any provisions of the Purchase Order which are typewritten or handwritten by Buyer shall supersede any contrary or inconsistent printed provisions. All the terms of the Purchase Order shall apply to additional quantities of the Goods and/or additional Services ordered by Buyer except to the extent covered by a new written agreement. The price set forth in the Purchase Order includes the cost of manufacturing, packaging, labeling, storage, cartage and shipping, unless otherwise specified therein. (Buyer specifically rejects any interest, service or late charges.)
17. VENDOR’S EQUAL OPPORTUNITY COMPLIANCE CERTIFICATE: In accepting the Purchase Order, Vendor certifies its compliance with all relevant EEO/AA laws, orders and regulations, the pertinent language of which is hereby incorporated by reference. Vendor certifies specific compliance with E. O. 11246; Section 503 of the Rehabilitation Act of 1973; and Section 402 of the Vietnam Era Veterans’ Readjustment Assistance Act of 1974.
THE FOLLOWING PURCHASE ORDER TERMS AND CONDITIONS ARE MEANT TO BE READ ALONG WITH SECTIONS 1 THROUGH 17. IN THE EVENT GOODS ARE SHIPPED FROM OUTSIDE THE U.S. AND THERE IS AN INCONSISTENCY BETWEEN SECTIONS 1 THROUGH 17 and SECTIONS 18 THROUGH 28, the TERMS AND CONDITIONS OF SECTIONS 18 THROUGH 28 SHALL GOVERN.
18. ROUTING RATES: All Goods shipped, at the cost and risk of FUJIFILM, must be forwarded by a FUJIFILM International Freight Forwarder as designated by FUJIFILM Corporation. Any difference in freight rates and extra costs of cartage resulting from the failure to use the designated FUJIFILM International Freight Forwarder shall be deemed deductible from the invoice price and will be charged to Seller's account.
19. PACKING: A packing slip showing order number must accompany each shipment. Packages must bear Buyer's order number and show country of origin, gross, tare, and net weights, or quantity as required. No charge for packaging will be allowed by Buyer unless otherwise indicated on the Purchase Orders or Scheduling agreement. In the event specialized packaging is requested for safety reasons, the Buyer, in writing, must approve packaging. Where Seller receives any additional payment for special packing which payment is not included in the unit price for the Goods, the amount of that payment shall appear on the invoice accompanying Goods and be separately identified as follows: “A separate packing charge of US$ ____ per unit has been paid by FUJIFILM and is not included in the invoice price.”
20. PRICE: Unless otherwise stated, all prices are to be stated in United States dollars. If prices are specified herein, Seller may not increase the price of ordered Goods before shipment without a revised signed purchase order. If price is omitted, it is agreed that the Goods shall be billed at the price last quoted or paid, or the prevailing market price at time of shipment, for the Goods, whichever is lower.
21. INVOICES: Seller’s invoices shall be in English and contain a complete description of the Goods, (including, but not limited to, commercial designation, material composition and, if part of another item, identification of the item to which a part), quantity shipped, unit and total price paid or payable for the Goods, terms of purchase and any additional statements as provided by these Terms and Conditions. Seller’s invoices shall be accompanied by a signed (1) original bill of lading, or (2) express "shipper's collect receipt," or (3) in case of prepaid shipments, original paid transportation bill showing the full amount of all freight and related charges paid. A separate invoice must cover each shipment. Amounts due and owing on invoices shall be for the quantity of the Goods received on the accompanying signed receiving documents, at the price set forth in this Purchase Order, unless modified by Buyer in writing.
22. PAYMENT FOR SPECIAL TOOLS, DIES, MOLDS AND ENGINEERING DESIGNS: Payment for special tools, dies, molds and engineering designs will not be made until such time as Buyer approves samples of produced Goods. If a payment for a special die or mold is made and not included in the unit costs of the produced Goods, the invoice for the produced Goods must state: “A separate payment of US$ ________ was received by us from FUJIFILM in connection with tools/dies/molds used in the production of this merchandise. See Purchase Order _______.” If tools, dies, molds or engineering designs are supplied to the Seller free of charge by the Buyer, the invoice must state: ”Molds/Tools/Dies/ Engineering designs were supplied free of charge by FUJIFILM, Inc and not included in the unit costs above.”
23. COMPLIANCE: If Seller is a subcontractor described in 41 CFR Section 61‑250.1 then the contract clause set forth in 41 CFR Section 61-250.10 shall be deemed incorporated herein by reference. Buyer requires and Seller further warrants and certifies that it will not obtain merchandise from manufacturers/sellers where it has knowledge or has reason to believe that said manufacturers/sellers utilize forced, prison or child labor. Child labor is defined under local law but in no case shall Goods be secured where there is the employment of children under age [15] in the production of the Goods. “Forced or indentured child labor” shall means all work or service (1) exacted from any person under the age of [15] under the menace of any penalty for its nonperformance and for which the worker does not offer himself voluntarily; or (2) performed by any person under the age of [15] pursuant to a contract the enforcement of which can be accomplished by process or penalties. Additionally, Buyer requires that its suppliers and contractors comply with all applicable executive orders, federal laws, state laws and related regulations relating to the parties’ general business, customs clearance, marking and employment practices (collectively “Regulations”).
24. BUYER'S PROPERTY: The Seller acknowledges that all materials, including tools, dies, molds or engineering designs furnished or specifically paid for by the Buyer (a) shall be and remain the property of the Buyer, (b) shall be subject to removal at any time without additional cost upon demand by the Buyer, (c) shall be used only in filling this order for the Buyer, (d) shall be kept separate from other materials or tools, and (e) shall be clearly identified as the property of the Buyer. The Seller assumes all liability for loss, or damage to Buyer’s property, with the exception, in the case of molds, tools, dies, or engineering designs, of normal wear and tear.
25. CONFIDENTIAL INFORMATION: Seller agrees not to disclose to any person outside of its employ, nor to use for any purpose other than to fulfill its obligations under this Purchase Order, any information which is received by Seller from Buyer and which relates to this Purchase Order, or which is developed hereunder, until such information is made publicly available by Buyer. Upon completion or termination of this Purchase Order, Seller agrees to return to Buyer upon request (a) all drawings, blueprints, software, hardware, tools, dies molds or engineering supplied, descriptions, customer identification and lists, and other material received from Buyer and (b) all materials containing said information, all of which Seller acknowledges are the property of Buyer. Seller further agrees not to disclose to Buyer any information of Seller or any other third party that is confidential or otherwise restricted. It is understood that any information received by Buyer may be used by Buyer as Buyer sees fit and without legal liability.
26. ASSIGNMENT AND SUBCONTRACTS: Seller shall not assign or transfer its accounts receivable, or assign or subcontract this Purchase Order or any right or obligation hereunder, without Buyer's prior written consent. Purchases of parts and materials normally purchased by Seller in the ordinary course of its business required by this Purchase Order shall not be construed as an assignment or subcontract.
27. TITLE AND RISK OF LOSS: In accordance with the terms of sale stated on the face of the Purchase Order, Seller warrants it shall pass clear, unrestricted, and unencumbered title to, and risk of loss for the Goods to Buyer upon Buyer’s receipt and acceptance of the Goods. All terms of sale are to be in conformity with INCOTERMS 2000. If no INCOTERMS category of international commercial terms of sale is stated on the face of the Purchase Order, the applicable category is assumed to be Cost, Insurance and Freight (“CIF”). Notwithstanding the forgoing, if Seller is an affiliate of Buyer, the INCOTERMS category selected by Seller shall govern.
28. CISG/ INCOTERMS: The parties agree that the Purchase Order will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. THIS CONTRACT SHALL BE GOVERNED BY INCOTERMS 2000.
