Pana Pacific Corporation
Purchase Order Terms and Conditions
1. Complete Agreement, no Modification: Acceptance by Supplier of this Purchase Order is expressly limited to the terms and conditions below. Buyer hereby rejects any additional or different terms and conditions, proposals, quotations or acknowledgements that differ from the terms below unless specifically agreed to in writing by the Buyer and Supplier in writing. This Purchase Order, together with any supply agreement, exhibits, supplements, warranties given by Supplier, and any documents referenced in this Purchase Order and Buyer’s written instructions shall constitute the final and complete agreement between Buyer and Supplier.
2. Assignment of Order: Assignment of this Purchase Order or any interest therein, shall be void unless written permission is given by Buyer. No waiver of any provision of this Purchase Order shall constitute a waiver of any other provision.
3. Changes: Buyer reserves the right to modify the Technical Specifications of a Part. Any change in price or other conditions resulting from changes to Technical Specifications, shall be agreed up on writing prior to any shipment. Supplier is responsible for submission of Production Part Approval Process (PPAP) documents and must notify Buyer of the completion date to Buyer’s appropriate contact. Furthermore, Buyer shall reserve the right to test any design, development, product installation, or service prior to shipment. The Supplier shall always strive to improve the production process. Buyer shall be entitled, after reasonable notification, to inspect the Suppliers production of a Part, perform tests, and make other necessary examinations at the Supplier’s premises, including evaluating any risks for interruption in the supply of Parts as well as safety related issues.
4. Confidential Information: Supplier agrees not to make any use of data, designs, drawings, specifications and other information furnished to it by Buyer, except for the performance of this Purchase Order. Supplier further agrees not to disclose such data, designs, drawings, renderings, specifications, and other information to others except for the performance of this Purchase Order under similar restrictions against use and disclosure. Upon completion or termination of this Purchase Order, Supplier shall return to Buyer all such data, designs, drawings, renderings, specifications, and other information including copies made by the Supplier.
5. Warranty: All Parts and Services furnished from Supplier to Buyer, and any services or installation relating thereto pursuant to this Purchase Order shall be warranted to the best quality of their respective kinds and shall be free of defects in design, workmanship, or material abnormalities. In the event of breach, the Supplier shall take all necessary action, at Supplier’s expense, to correct such breach in the most expeditious manner possible. Should the Supplier fail to correct any such breach in a timely manner, Buyer may proceed, at Supplier’s expense to perform the necessary corrective work. This warranty shall also inure to the benefit of Buyer’s customer or the user of the Parts and Services. Supplier accepts and agrees to the provision and requirements contained in Buyer’s Supplier Guide.
6. Intellectual Property: Supplier warrants that the goods or services sold will not infringe on any U.S. or foreign patent and/or any third party intellectual property right, and Supplier will, at its expense, defend, indemnify and hold Buyer harmless from any loss, damage, expense or liability, including attorneys’ fees and costs, that result from any infringement or alleged infringement. Supplier expressly waives any claim against Buyer that an infringement arose out of compliance with Buyer’s specification. If any of the products or services furnished to Buyer become the subject of an alleged infringement of a patent or third party intellectual property right, Supplier shall, at its own expense, either procure for Buyer the right to continue using the goods or services; replace or modify them so that they are no longer infringing, or refund Buyer the full purchase price. Supplier agrees that Buyer or its subcontractors have the right to repair, reconstruct, or rebuild goods delivered under these Terms and Conditions without payment of royalty to Buyer. Supplier agrees that Parts manufactured based on Buyer’s drawings or specifications may not be used for Supplier’s own use or sold to third parties without Buyers express written consent.
7. Indemnification: Supplier shall indemnify, defend, and hold harmless Buyer, including its affiliates, subsidiaries, parent company, and their respective officers, directors, employees from any and all damages, fines, penalties, and other liabilities (including attorneys’ fees and costs) arising out of or in connection with Suppliers Parts or Services.
8. Tooling Information: All patterns, tools, dies, or other material furnished by Buyer to Supplier or which are specifically paid for by Buyer, and replaced thereof, or anything affixed or attached thereto, shall be and remain Buyer’s personal property. Such personal property, if it can reasonably be done, shall be plainly marked or otherwise adequately identified by Supplier as property of Buyer, and shall be safely stored separate and apart from Supplier’s property. While in Supplier’s custody, Supplier shall be responsible for, and shall promptly notify Buyer of any loss or damage. All personal property shall be covered by appropriate insurance and shall be kept free from liens. Buyer shall have the right to enter Supplier’s premises at all reasonable times to inspect such personal property.
9. Claims Adjustment: In addition to any right of setoff or recoupment provided by law, Buyer may, at any time and without notice, deduct or setoff claims for additional expenses attributed to actions by Supplier.
10. Export Compliance: Performance of this Purchase Order may involve the use of or access to articles, technical data, or software that is subject to export controls under United States Code and Asset Control Regulations. Supplier shall comply with any and all applicable Export Laws and Regulations and any licenses issued thereunder. Supplier shall not give any Foreign Persons (as that term is defined in the Export Laws and Regulations) access to technical data or software as those terms are defined in the applicable Export Laws and Regulations without prior written consent of Buyer. Supplier shall indemnify, and hold harmless Buyer from any and all damages, liabilities, penalties, fines, costs, and expenses including attorney’s fees in connection with the provisions of the Export Laws and Regulations. Failure to comply with these requirements shall constitute a material breach of this agreement.
11. Import Security Filings: Buyer requires that importer security filings be filed for all shipments traveling to the U.S. via Ocean Carrier. Supplier must provide all ISF filing data elements to Buyer’s ISF trade compliance department at least 48 hours prior to the vessel’s loading at Origin by emailing: email@example.com. Failure to do so may result in a no load order and/or substantial penalties per occurrence. If the ISF information is not supplied within the timeframe required, or is not supplied accurately and correctly, then additional expenses incurred due to fines and/or no load mandates and delays in the Supply Chain, will be at Suppliers Expense. Penalties and additional costs resulting from changes in mode of transportation, storage charges due to Suppliers failure to timely and accurately provide ISF data elements, will also be at Suppliers expense. Buyer expects that all ocean shipments will arrive on schedule and that there will be no cause for production or service delays as a result of failure to comply with ISF regulations.
12. Compliance with Laws: Supplier agrees to comply with all applicable Federal, State and Local laws, statutes and ordinances and shall indemnify and hold harmless Buyer from any claim, loss, or damage arising from Supplier’s violation or alleged violation. Supplier will comply with the requirements of I.S. Executive Order 11246, 41 C.F.R. § 60-25-.4, 41 C.F.R. § 60-741.4, and other applicable equal employment opportunity laws. Supplier certifies that it complies with all applicable laws concerning minimum employment age, working condition, compensation, and does not engage in slavery or human trafficking.
13. Trade Law: Supplier agrees to deliver, as a separate line item, a NAFTA Certificate of Origin for all goods that meet the NAFTA Rules of Origin and an appropriate Certificate of Origin for all other goods. Buyer reserves the right to withhold all payments to the Supplier until such time as a completed NAFTA Certificate or other appropriate certificate is delivered. A NAFTA Certificate is mandatory for all goods which are labeled “Made in the USA.”
14. Trade Partnership against Terrorism: Buyer supports the U.S. Customs and Border Protection Customer-Trade Partnership Against Terrorism program (C-TPAT). Buyer requires that shipments through U.S. importers, from manufactures in foreign countries, and through U.S. brokers, freight forwarders, and carriers should be certified C-TPAT transportation companies unless otherwise approved by Buyer.
15. Anti-Corruption: Supplier shall comply and require its subcontractors and suppliers to comply with all applicable Laws in force from time to time in every jurisdiction in which Supplier manufactures, delivers, or performs services related to the subject matter of this Purchase Order. Supplier represents and warrants that it has not and will not, in connection with the transactions involving Buyer or any other business transaction, make, offer or promise to make, any payment or transfer anything of value, directly or indirectly, to any government official or employee owned, government controlled corporations and public international organizations, political parties, candidates or any other person that would violate any Laws.
16. Governing Law and Jurisdiction: These Purchase Order Terms and Conditions shall be governed by and construed in accordance with the laws of Fresno, California.
17. Enforceability and Severability: Any term or condition contained in these Terms and Conditions that is declared unlawful or unenforceable by a court of competent jurisdiction shall not apply, and the unenforceability of any such term or condition shall not affect the enforceability of any other term or condition.
18. Packaging and Shipping: Supplier shall furnish a list of contents with each package bearing this Purchase Order Number. No charge will be allowed by Buyer for packing unless agreed upon in writing prior to shipment. All expenses incurred by Supplier’s failure to furnish necessary shipping documents shall be charged to Supplier. Supplier shall undertake steps to comply with the Production Parts Packaging and Shipping Guidelines pertaining to, but not limited to, container selection, sizes, sealing, labeling, Supplier shall refer to Buyer’s Supplier Guide for details regarding Packaging and Shipping.
19. Shipping Performance and Delays: Supplier understands that timely delivery is essential. Buyer may change the rate of scheduled shipments or direct temporary suspension of scheduled shipments, neither of which shall entitle Supplier to a modification of the price for goods or services covered by this agreement. In the event of delay or failure to perform by the Supplier, Buyer may give written notice to Supplier of either termination of the Purchase Order or rejection of any partial or future shipment. All damages suffered by Buyer including premium transportation or other costs required to meet the specified delivery schedule will be the expense of the Supplier. Neither party shall be responsible to each other for any delay or failure to perform where such delay of failure is caused by events beyond the reasonable control of the affected party.
20. Quality Inspection: Buyer shall have the right to expedite, inspect, and test any of the Parts or Services covered by this Purchase Order prior to shipment. All Parts and Services are subject to Buyer’s inspection and approval on arrival. If rejected, Parts will be held for disposal at Supplier’s risk. Such inspection, or the waiver thereof, shall not relieve the Supplier from full responsibility for furnishing Parts and Services conforming to the requirements of the Purchase Order, nor prejudice any claim, right, or privilege Buyer may have because of the use of defective or unsatisfactory Parts or Services.
21. Invoicing: Supplier shall furnish to Buyer invoices containing, PO#, part number, quantity and will be in U.S. dollars. Invoices shall be submitted to firstname.lastname@example.org
22. Payment Terms: Unless otherwise stated in the Purchase Order or in separate written agreement, Buyer will pay for Parts and Services within ninety (90) days of the later of Buyer’s receipt of an invoice from the Supplier for such Parts and Services, and receipt of thereof. In no event shall Buyer be required to pay late fees or interest on any invoices.
23. Surplus or Obsolete Material: Supplier shall be responsible for addressing the reduction of or elimination of any surplus or obsolete inventories of Parts on a quarterly basis with the appropriate Buyer Materials Director. Any surplus or obsolete material not addressed within one hundred twenty (120) days will automatically be Suppliers responsibility.
24. Aftermarket Service Parts: Supplier shall, at commercially reasonable prices, maintain availability of the Parts or Services purchased under this Purchase Order for a minimum of 7 years.
25. Recall Cause: If the Products or Services furnished from Supplier to Buyer contribute to a vehicle recall due to a motor vehicle safety defect or noncompliance within the Unite States National Motor Vehicle Traffic Safety Act or the Canadian Motor Vehicle Safety Act, as amended, Supplier shall pay the costs and expense of recall and correction.
26. Environmental Obligation: Supplier shall establish controls to ensure that environmental requirements have been addressed in the design, development, and production process during the Parts or Services entire lifecycle. At Buyer’s request, Supplier shall show environmental concern processes and performance. Supplier shall undertake steps to comply with the Buyer’s Environmental Requirements as listed in the Buyer Supplier Guide.
27. Hazardous Materials Notification: Upon request from Buyer, Supplier agrees to promptly provide Buyer with information relating to the materials in the Products that Buyer may be required to obtain in order to meet its legal obligations. In addition, Supplier shall promptly furnish to Buyer in such form and detail as Buyer may direct: (a) a list if all materials in the good; (b) the amount of one or more materials; (c) submission to buyer through International Material Data System and (d) information concerning any changes in or additions to such materials. Prior to, and with the shipment of goods, Supplier shall furnish sufficient written warnings such as a Material Safety Data Sheet (MSDS) and notice (including labels on goods, containers, and packing) of any hazardous material which is an materials or component of the Parts, together with special handling instructions necessary to advise carriers, Buyer, and their respective employees of how to exercise that measure of care and precaution which will prevent bodily injury or property damage in the handling , transportation, processing, use, or disposal of the good, containers and/or packing.
28. Taxes: Supplier shall collect, be responsible for and shall remit to the appropriate government agency all domestic and foreign, including but not limited to, state and local sales, use, or ad valorem taxes (collectively referred to as “Taxes”) due with respect of the purchase and Parts or Services. If Buyer qualifies for an exemption from Taxes or a reduced rate of Taxes, then no Taxes or the reduced amount of Taxes, whichever the case, shall be collected. In addition, in jurisdictions in which Buyer holds a direct payment permit with respect to Taxes or is permitted or required to self –assess or remit any Taxes, Buyer may supply a copy of the permit to Supplier and no Taxes shall be collected by Supplier on the purchase of Parts or Services.
29. Relationship: Neither Supplier or its subcontractors, or the employees or agents of any of them, shall be deemed to be Buyer’s employees or agents. Supplier and its subcontractors are independent contractors and Supplier shall be wholly responsible for withholding or payment of all federal, state and local income and other payroll taxes with respect to its employees, including contributions from them as required by law. Furthermore, nothing contained in this Purchase Order shall create any agency, fiduciary, joint venture, or partnership between Buyer and Supplier.
30. Code of Conduct: Supplier shall maintain high ethical standards and business practices for all officers, directors and employees.
31. Use of Marks for Publicity: The Buyer and Supplier may use their business relationship for advertising purposes only with the prior written consent of the other party. Supplier will not place its or any third party trademark on a Part if it bears a trademark of Buyer or any of its affiliates.
32. General Liability Insurance: Supplier shall carry comprehensive general liability insurance and name Pana Pacific as an additional named insured. This policy will include contractual and product liability coverage, with minimum limits acceptable to Buyer but no less than $1,000,000 Each Occurrence and $2,000,000 Annual Aggregate.
33. Force Majeure: Neither party shall be responsible for a delay or failure to perform due to an event of force majeure, which shall include acts of god, governmental action, war, civil disturbance, riot, lockout, sabotage, embargo, natural disaster, or any other unforeseen condition beyond the control of either Party, and not due to its negligence or willful misconduct. The Party suffering an event of force majeure shall provide the other Party with prompt written notice and shall be excused from performing its obligations under the Purchase Order for so long as such condition persists. Neither party shall be excused from tendering partial performance if possible. In the case of an event of force majeure, Buyer, at its option, may acquire possession of all finished Parts and Services at the then current price and work-in-progress. If a force majeure event lasts for a period of thirty (30) days or more, Buyer may elect to terminate the Purchase Order upon written notice to Supplier.
34. Termination for Default: Buyer may terminate all or any Part of this Purchase Order by giving notice of default to Supplier if Supplier refuses or fails to deliver the goods within the time specified, fails to comply with any of the provisions of this Purchase Order, or so fails to make progress as to endanger performance hereunder, or becomes insolvent or subject to the proceedings under any law relating to bankruptcy, insolvency or the relief of debtors. In the event of default, Buyer’s liability shall be limited to the payment for goods and services delivered and accepted under this Purchase Order.
35. Termination for Convenience: Buyer may terminate this Purchase Order at any time for its convenience, in whole or in Part, in which event, Buyer’s sole obligation shall be to reimburse Supplier for goods actually shipped and accepted, costs incurred by Supplier for unfinished goods which are specifically manufactured for Buyer and are not standard products, and as of the date of termination. In no event shall Buyer be responsible for loss of anticipated profit nor shall reimbursement exceed the order value of the actual quantity of goods that are on firm release by Buyer.
36. Remedies and Waivers: The rights and remedies reserved in this Purchase Order to Buyer are cumulative and in addition to any other or further rights and remedies available at law or equity. Without limiting the foregoing, if any Parts or Services fail to conform to the warranties provided by Supplier, Buyer shall notify Supplier and Supplier shall, if requested, reimburse Buyer for any administrative, incidental and consequential damages caused by the nonconforming Parts or Services, including costs, expenses, and losses incurred by Buyer for inspecting, sorting, repairing or replacing nonconforming Parts and Services. Buyer reserves the right to charge Supplier for generating Supplier Corrective Action Request (SCAR) and late response to SCAR. No waiver of any section of this agreement shall constitute a waiver of any other section. Supplier acknowledges that its Parts or Services are unique and not readily available to Buyer from any other source. Any interruption in supply to Buyer will diminish the value of Buyer’s business, disrupt its relationship with its customers, and cause irreparable harm. Accordingly, Supplier agrees that if Supplier breaches its obligations hereunder, Buyer shall be entitled to all available equitable and legal remedies including without limitation immediate injunctive relief.