This Purchase Order forms a Contract and integrates, merges, and supersedes any prior offers, negotiations, and agreements concerning the items subject to this Purchase Order and constitutes the entire agreement between the parties. This Purchase Order may only be amended in writing. Seller's acknowledgment, acceptance of payment, or commencement of performance, shall constitute Seller’s unqualified acceptance of this Purchase Order. Unless expressly accepted in writing by ASAP Semiconductor, additional or differing terms or conditions proposed by Seller or included in Seller's acknowledgment are objected to by ASAP Semiconductor and have no effect.
For purposes of these Terms and Conditions, the following definitions apply:
“Article” means any material, part, component, process, assembly, or appliance sold or provided to ASAP Semiconductor.
“ASAP Semiconductor” means ASAP Semiconductor and all its business names, affiliates, divisions, and subsidiaries; including, but not limited to, the following sales sites: Aviation Sourcing Solutions, Just NSN Parts, Just Connectors, ASAP Memory, Just IT Hardware, AFR Enterprises, ASAP NSN Parts, ASAP Purchasing, ASAP Aerospace, and ASAP Fasteners.
“CEO” means Chief Executive Officer
“CLO” means Chief Legal Officer
“Contract” means the instrument of contracting, such as "Purchase Order", "PO", "Subcontract", or other such type designation, including these terms and conditions, and all referenced documents and attachments, whether attached to this Contract document, the underlying documents (e.g., Purchase Order or PO), or incorporated by reference.
“Seller” means the party identified on the face of this Contract with whom ASAP Semiconductor is contracting.
“Terms and Conditions” shall mean this document and any terms incorporated by reference.
Seller agrees to furnish the Articles hereby ordered under this Purchase Order. Signing and returning a copy of the Purchase Order, commencement of performance, shipment of goods, or acceptance of any payment, shall constitute Seller’s unqualified acceptance of this Purchase Order subject to these terms and conditions and the formation of a binding Contract. Any terms or conditions proposed by Seller inconsistent with or in addition to the terms and conditions contained herein shall be void and of no effect unless specifically agreed to by ASAP Semiconductor in writing.
ASAP Semiconductor may, at any time and by written notice, make changes within the scope of this Contract in the following: delivery schedule, place of acceptance or point of delivery, and/or method of shipping and packing requirements. If any such change causes an increase or decrease in the cost of, or the time required for, performance of any part of this Contract, ASAP Semiconductor shall make a commensurate adjustment to the price and/or delivery schedule and this Contract shall be considered modified accordingly.
Only the ASAP Semiconductor point of contact for this Contract has the authority to make changes to this Contract. All amendments must be presented in writing and accepted in writing by the receiving party. Any other representative of ASAP Semiconductor proposing to amend this Contract must present to Seller written authorization from ASAP Semiconductor President, CEO, or CLO to make such amendment and failure to do so shall render any such amendment void. The President, CEO, and CLO shall each have the individual authority to amend the Contract in writing in accordance with the requirements of this section.
INVOICE AND PAYMENT
An original invoice shall be submitted to accounts receivable for each delivery of Articles and contain the following information: purchase order number; unique invoice number, invoice date, remit to address, line-item number, description of Articles, part number, size, quantity, unit price, extended line item total and total invoice price. Any invoice submitted hereunder will be paid Net 30 days after receipt of proper invoice and acceptance of the delivered goods by ASAP Semiconductor. Prior to payment, ASAP Semiconductor may make any adjustments to Seller’s invoice to accommodate shortages, late delivery, rejections, or other failure to comply with the requirements of this Contract. Payment discounts will be taken from the date of an acceptable invoice. Payment shall not constitute final acceptance. ASAP Semiconductor may offset against any payment hereunder for any amount owed to ASAP Semiconductor by Seller. In the event of an overpayment, Seller shall promptly repay ASAP Semiconductor any amount paid in excess of amounts due to Seller.
TAXES AND DUTIES
All taxes, including but not limited to, federal, state and local income taxes; franchise taxes; federal, state and local sales and use taxes (except sales or use taxes imposed on account of a transaction made under this Contract); gross receipts taxes; property taxes; and import or export duties and tariffs; and all such similar fees imposed by any government are deemed to be included in the price of the goods and all of which must be listed separately on the invoice.
PACKING AND SHIPPING
Unless otherwise specified, all goods shall be suitably packed in accordance with good commercial practices and comply with carrier’s regulations. All charges for packing, crating and transportation are included in the price for the Articles set forth in this Contract and will be paid by Seller.
A packing list shall accompany each shipment showing the purchase order number as well as the item number, description of Articles, and quantity. If no such Packing List accompanies any shipment, the count, weight or other measure of ASAP Semiconductor will be deemed final and conclusive. ASAP Semiconductor is not obligated to accept any shipments in excess of the ordered quantity, which may be returned to Seller at Seller’s expense.
Unless otherwise stated herein, all deliveries under this Contract shall be F.O.B. destination (UCC). Title and risk of loss of all goods shall pass to ASAP Semiconductor or its customer as ASAP Semiconductor may so designate in writing, when goods are received and ASAP Semiconductor or its duly designated customer takes possession of goods.
Time is of the essence of this Purchase Order and failure to deliver in accordance with the delivery schedule under this Contract, if unexcused, will be considered a material breach of the Contract. No acts of Buyer, including without limitation modifications of this Contract or acceptance of late deliveries, shall constitute waiver of this provision. Delivery shall not be deemed to be complete until goods have been received and accepted by ASAP Semiconductor.
Seller shall notify ASAP Semiconductor in writing immediately of any actual or potential delivery delays under this Contract. Such notice must include a proposed revised schedule but such notice and proposal or ASAP Semiconductor’s receipt or acceptance thereof shall not constitute a waiver of ASAP Semiconductor’s rights and remedies under this Contract.
INSPECTION AND ACCEPTANCE
All goods and services are subject to inspection by ASAP Semiconductor at no additional cost to ASAP Semiconductor or its customer at reasonable times and places, including at Seller’s location or at Seller’s lower-tier supplier/subcontractor’s location.
If Seller delivers non-conforming Articles, ASAP Semiconductor may, in addition to any other remedies available at law or at equity: (i) accept all or part of such goods at an equitable price reduction; (ii) reject non-conforming goods; or (iii) require Seller, at Seller’s expense, to make all repairs, modifications, or replacements at the direction of ASAP Semiconductor necessary to enable such good to comply in all respects with this Contract. In this instance, Seller shall not redeliver corrected Articles without disclosing the corrective action taken to ASAP Semiconductor in writing.
Any assignment of Seller's Contract rights or delegation of Seller's duties under this Contract is void, unless prior written consent is given by ASAP Semiconductor.
CHANGE IN CONTROL OF SELLER
In the event of a change in control of Seller that will take effect prior to the completion of this Contract, Seller will promptly notify ASAP Semiconductor in writing thereof, and provide, at ASAP Semiconductor’s request, written assurance of the full completion of this Contract. If the Contract cannot be completed, Seller shall provide to ASAP Semiconductor a written plan to mitigate and indemnify ASAP Semiconductor against any damages arising from Seller’s failure to complete the Contract. This mitigation and indemnity shall be in addition to, and not in lieu of, any other damages provided for by this Contract.
TERMINATION FOR CONVENIENCE
ASAP Semiconductor may terminate this Contract for its convenience, in whole or in part, by providing written notice of such termination to Seller. In the event of such a termination, Seller must: (i) stop work immediately and direct all of its suppliers and subcontractors to stop work immediately on the terminated portion of the Contract; (ii) promptly deliver to ASAP Semiconductor all fully completed goods; and (iii) continue all work that was not terminated.
Seller will be entitled to an Equitable Adjustment to the Contract price but will not be paid for any worked performed or costs incurred that could have been reasonably avoided. Seller must submit its proposal to Buyer for costs relating to the termination within thirty (30) days after the effective date of the termination. In no event will ASAP Semiconductor be liable for lost or anticipated profits, unabsorbed indirect costs or overhead, or for any sum in excess of the total Contract price. Seller hereby waives, releases, and renounces any claim for compensation not made within the aforementioned time period.
TERMINATION FOR DEFAULT
The Articles to be delivered under this contract must consist of new materials, not used, reconditioned, remanufactured, or of such age as to impair the usefulness or safety of the Articles, unless otherwise approved in writing by ASAP Semiconductor.
This section applies to all Contracts. If DFARS 252.246-7007 or DFARS 252.246-7008 are also applicable to this Contract, the provisions of paragraphs (a) – (e) of DFARS 252.246-7007, including its definition of “electronic parts,” are incorporated in this paragraph by reference and “Contracting Officer” shall mean “ASAP Semiconductor”. Seller will establish and maintain a counterfeit prevention process that ensures the requirements of these clauses or other authenticity requirements in this Contract are met. Seller’s obligation to confirm and provide genuine, non-counterfeit Articles shall survive Acceptance of and payment for Articles delivered under this Contract.
Seller shall not furnish suspect counterfeit or counterfeit Articles to ASAP Semiconductor under this Contract. All Articles delivered under this Contract must be authentic, genuine, and traceable to the original manufacturer. Seller must provide authenticity and traceability records to ASAP Semiconductor upon request.
Electronic parts must not be acquired from brokers or surplus parts sellers unless approved in advance in writing by ASAP Semiconductor. Seller shall immediately notify Buyer if Seller cannot provide electronic Articles traceable to the original component manufacturer, the original equipment manufacturer, or an authorized distributor thereof. ASAP Semiconductor reserves the right to terminate this Contract at no cost or to require specific material validation test and inspection protocol requirements to Seller in the event of such notice to ASAP Semiconductor.
If suspect counterfeit or counterfeit Articles are furnished under this Contract and are found in any of the Articles delivered hereunder, such items will be quarantined by ASAP Semiconductor. Seller shall promptly replace such suspect/counterfeit Articles with Articles acceptable to ASAP Semiconductor. Seller shall be liable for all costs relating to the removal and replacement of such Articles, including without limitation ASAP Semiconductor’s direct and consequential costs of removing such suspect/counterfeit Articles, of reinserting replacement Articles and of any testing or validation necessitated by the reinstallation after suspect/counterfeit Articles have been replaced. ASAP Semiconductor’s remedies described in this section shall not be limited by any other clause or section agreed upon between ASAP Semiconductor and Seller in this Contract and are in addition to any remedies Buyer may have at law, equity or otherwise under this terms of this Contract.
Seller must insert the substance of this clause, including this sentence, in any lower tier subcontract.
QUALITY CONTROL SYSTEM
Seller shall provide and maintain a quality control system to an industry recognized Quality Standard and in compliance with any other specific quality requirements identified in this Contract. Records of all quality control inspection work by Seller shall be kept complete and available to ASAP Semiconductors and its customers upon request.
Seller warrants that all Articles furnished pursuant to this Contract strictly conform to applicable specifications, drawings, samples, descriptions, and other requirements of this Contract and are free from defects in design, material, and workmanship. This warranty shall begin upon final acceptance and extend for a period of one (1) year.
Seller warrants any hardware, software and firmware goods delivered hereunder shall not contain any viruses, malicious code, Trojan horse, worm, time bomb, self-help code, back door, or other software code or routine designed to (i) damage, destroy or alter any software or hardware; (ii) reveal, damage, destroy or alter any data; (iii) shall not contain any third party software that may require any software to be published, accessed or otherwise made available without ASAP Semiconductor’s consent or may require distribution, copying or modification of any software free of charge; and (iv) shall not infringe any patent, copyright, trademark or other proprietary right of any third party or misappropriate any trade secret of any third party.
If any nonconforming Articles are identified within the warranty period, Seller, at ASAP Semiconductor’s option, shall promptly repair or replace the Articles. Transportation of replacement Articles and return of nonconforming Articles shall be at Seller’s expense. If repair or replacement of Articles is not timely, ASAP Semiconductor may elect to return, repair, replace, or reprocure the non-conforming Articles at Seller's expense. All warranties shall run to ASAP Semiconductor and its customers and shall survive inspection, delivery, acceptance, or payment by ASAP Semiconductor.
Articles must not be supplied in excess of the quantities specified in this Contract. Seller agrees to be held liable for handling charges and return shipment costs for any excess quantities, and agrees to hold harmless ASAP Semiconductor for any damage or loss occurring to returned Articles shipped in excess of the contracted quantities.
PLACE OF PERFORMANCE
If Seller intends to change the place of performance of this Contract from the place(s) identified in Seller’s offer, Seller shall provide prior written notice to ASAP Semiconductor at least three months in advance of such change.
Seller agrees to comply with all applicable U.S. export control laws and regulations, specifically including, but not limited to, the requirements of the Arms Export Control Act, 22 U.S.C. 2751-2794, including the International Traffic in Arms Regulation (ITAR), 22 C.F.R. §§ 120-130; the Export Administration Regulations, 15 C.F.R. §§ 730-774; and the Foreign Assets Control Regulations, 31 C.F.R. §§ 500-598, including the requirement for obtaining any export license or agreement, if applicable. Without limiting the foregoing, Seller agrees that it will not transfer any export-controlled item, data, or service without the authority of an export license, agreement, or applicable exemption or exception.
Seller agrees to immediately notify ASAP Semiconductor if any deliverable under this Contract is restricted by export control laws or regulations and shall provide to ASAP Semiconductor accurate United States Munitions List (USML) category information or Export Control Classification Number (ECCN) for the controlled item, data, or service.
Seller shall immediately notify ASAP Semiconductor if Seller is, or becomes, listed in any restricted party list, including but not limited to the Specially Designated Nationals List (OFAC), Denied Parties List, Unverified List, or Entity List (BIS), or List of Statutorily Debarred Parties (DDTC), or if Seller’s export privileges are otherwise denied, suspended or revoked in whole or in part by any U.S. Government entity or agency.
If Seller is engaged in the business of either exporting or manufacturing defense articles or furnishing defense services, Seller represents that it is registered with the Directorate of Defense Trade Controls, as required by the ITAR, and it maintains an effective export/import compliance program in accordance with the ITAR.
Where Seller is a signatory under an ASAP Semiconductor export license or export agreement (e.g., Technical Assistance Agreement (TAA), Manufacturing License Agreement (MLA)), Seller shall provide prompt notification to ASAP Semiconductor in the event of changed circumstances including, but not limited to, ineligibility, a violation or potential violation of the ITAR or EAR, and the initiation or existence of a U.S. Government investigation, that could affect the Seller’s performance under this Contract.
Seller shall be responsible for all losses, costs, claims, causes of action, damages, liabilities and expenses, including attorneys’ fees, all expense of litigation and/or settlement, and court costs, arising from any act or omission of Seller, its officers, employees, agents, suppliers or subcontractors at any tier, in the performance of any of its obligations under this section.
Seller shall comply with all U.S. Customs and Border Protection laws and regulations (e.g., 19 C.F.R. et seq.) and all other applicable U.S. Government regulations pertaining to importation of Articles into the United States under this Contract. Seller shall assume all U.S. import responsibilities, including designation as U.S. Importer of Record, Customs clearance, duty, permits, licenses, taxes, and fees for Articles entering into the United States under this Contract. Unless otherwise agreed in writing, ASAP Semiconductor will not assume any import liabilities for Articles procured under this Contract. Seller shall obtain the written consent of ASAP Semiconductor prior to causing Articles to be shipped directly (i.e., “drop shipped”) from the premises of any non-U.S. supplier to ASAP Semiconductor’s facility.
GRATUITIES AND KICKBACKS
Seller shall not offer or give a kickback or gratuity (in the form of entertainment, gifts, or otherwise) for the purpose of obtaining or rewarding favorable treatment as a supplier or subcontractor of ASAP Semiconductor. By agreeing to this Contract, Seller certifies and represents that it has not made or solicited, and will not make or solicit, kickbacks in violation of FAR 52.203-7 or the Anti-Kickback Act of 1986 (41 U.S.C. §§ 51-58), both of which are hereby incorporated by reference.
INFORMATION RIGHTS AND SECURITY
Paragraph (a) is not applicable for commercial off-the-shelf (COTS) Articles unless such Articles are modified or redesigned pursuant to this Contract.
Seller shall indemnify, defend, and hold harmless Buyer, including its officers, directors, employees, consultants, agents, affiliates, successors, and permitted assigns, and Buyer’s customers from and against any and all damages, losses, liabilities, claims, demands, subrogation, suits, actions, proceedings, cost and expenses (including reasonable attorneys’ fees and cost of litigation) arising out of or relating to any claims, causes of action, lawsuits or other proceedings, regardless of legal theory, that result, in whole or in part, from Seller’s (or any of Seller’s suppliers/subcontractors, employees, agents or representatives): (i) intentional misconduct, negligence, or fraud; (ii) breach of any representation, warranty or covenant made herein; (iii) breach of the confidentiality or disclosure provisions herein; (iv) infringement of any patent, trademark, copyright, trade secret, or any other intellectual property right; or (v) violation of any law or regulation.
Notwithstanding anything else to the contrary herein, Seller agrees that the maximum liability of ASAP Semiconductor under this Contract (whether by reason of breach of contract, tort, or otherwise, including under all indemnification and warranty provisions (if any)), shall be limited to the aggregate amount of payments made to Seller as of the date the claim arises, and in no event shall ASAP Semiconductor be liable for indirect, special, consequential, punitive, exemplary, or incidental damages, regardless of whether ASAP Semiconductor (a) has been informed of the possibility of such damages or (b) is negligent.
(b) Seller shall have its insurers name ASAP Semiconductor as an additional insured on the commercial general liability and automobile liability policies for the duration of this Contract. If requested, Seller shall provide a "Certificate of Insurance" evidencing its compliance with these requirements. Insurance maintained pursuant to this clause shall be considered primary as respects the interest of ASAP Semiconductor and is not contributory with any insurance that ASAP Semiconductor may carry.
ORDER OF PRECEDENCE
Any inconsistencies in this Contract will be resolved in the following order of precedence: (1) the face of the Purchase Order including any continuation sheets and information listed thereon; and (2) these Terms & Conditions.
All agreements made by ASAP Semiconductor are made in California and shall be interpreted under the laws of California, not including the state’s conflict of laws provisions. Both parties agree that any suit brought in relation to this agreement, or to enforce any clause of this agreement, shall be brought in a trial court in closest proximity to ASAP Semiconductor’s headquarters. Both parties agree to be subject to the personal jurisdiction and venue of that court.
Seller is an independent contractor in all respects with regards to this Contract. The employees used by Seller to perform under this Contract shall be Seller's employees exclusively and without any relation whatsoever to ASAP Semiconductor. Nothing contained in this Contract shall be deemed to create a partnership, joint venture, agency or other relationship other than that of a contractor and customer.
Unless a longer period is specified in this Contract or by law or regulation, Seller must retain all records related to this Contract for ten (10) years from the date of final payment received by Seller. Records related to this Contract include, but are not limited to, financial, proposal, procurement, specifications, production, inspection, test, quality, shipping and export, and certification records. At no additional cost, Seller shall timely provide access to such records to the U.S. Government and/or ASAP Semiconductor upon request.
COMPLIANCE WITH LAWS
The parties to this Contract shall comply with all applicable laws, rules, regulations and public policies that prohibit unethical conduct, including bribery, corruption, fraud, money-laundering, and human trafficking, among other things (“Laws”). For the purposes of this Contract, applicable Laws include those of the United States and any other jurisdiction that may exercise jurisdiction over the parties in the performance of this Contract. The parties shall not directly or indirectly give, offer, promise, authorize, or allow to be given, offered, , or promised, anything of value to an official or employee of any government, state-owned enterprise, international organization including subdivisions thereof, or entities acting on behalf of a government, state-owned enterprise, international organization, or subdivision thereof (any such employee or official referred to collectively as “Official”), while knowing or having reason to know that such thing of value is to be given, offered, or promised to an Official (including political parties or officials thereof or candidates for foreign office) in order to: (i) influence any official act or decision of such Official, or (ii) induce such Official to use his/her influence to affect or influence any act or decision of any government (or any subdivision thereof), or (iii) assist the parties in obtaining or retaining business, or in directing business to any person or obtain an unfair advantage for the parties in any respect.
Should either party violate any of the Laws then: (i) the other party shall have the right to immediately terminate the Contract for default; (ii) the other party shall have a right of action against the offending party for the recovery of any monetary payment(s) or thing(s) of value made or given by the offending party in breach of such Laws; and (iii) the offending party shall indemnify the other party for any penalty, loss or expenses incurred by the other party as a result of the offending party's breach of any of its obligations under this section.
If this Contract involves delivery of any hazardous material, packaging and shipment of such material must be made in accordance with Hazardous Goods Regulations Title 49 C.F.R. and any other regulations and standards applicable to the shipment and handling of such hazardous material. Seller must provide via mail or email in advance of shipment the most recent version of the Material Safety Data Sheet (MSDS) or Safety Data Sheet (SDS) applicable to the hazardous material. By agreeing to this Contract, the Seller certifies: (1) Compliance with this section; (2) an up to date MSDS/SDS will be submitted prior to delivery of any hazardous material; or (3) that no hazardous material will be delivered, as applicable.
INCLUSION OF FAR/DFARS CLAUSES
If a government contract number is referenced on the face of the Purchase Order, whether or not ASAP Semiconductor is the prime contractor or a subcontractor at any tier, Seller agrees to the incorporation of all applicable FAR and DFARS clauses flowed down by ASAP Semiconductor in its Federal Acquisition Regulation (FAR) and Defense Federal Acquisition Regulation Supplement (DFARS) Flowdown Clauses document, available at https://www.asapsemi.com/far-and-dfar-flow-downs.pdf, which are hereby incorporated by reference as if fully set forth herein.
DEFENSE PRIORITIES AND ALLOCATIONS SYSTEMS (DPAS)
If so identified on the face of the Purchase Order, this Contract is a “rated order” certified for national defense, emergency preparedness, and energy program use, and the Seller shall follow all the requirements of the Defense Priorities and Allocations Systems (DPAS) regulation (15 C.F.R. part 700).
DEBARRED, SUSPENDED, OR PROPOSED FOR DEBARMENT
Except for COTS items, Seller represents and warrants that it is not currently debarred, suspended, or proposed for debarment or suspension by any federal or state agency.
Seller will use commercial reasonable efforts to: (i) identify whether the Articles delivered under this Contract contain tin, tantalum, gold, or tungsten; (ii) determine whether any such minerals originated in covered countries as defined in Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Act”); and (iii) perform appropriate due diligence on its supply chain in support of ASAP Semiconductor’s obligations under the Act.
In addition, Seller shall, as soon as reasonably practicable following the completion of the calendar year, provide a completed Conflict Minerals Reporting Template, using the form found at https://www.responsiblemineralsinitiative.org/reporting-templates/cmrt/. If requested, Seller will promptly provide information or representations that ASAP Semiconductor reasonably believes are required to meet its conflict minerals compliance obligations.
EQUAL EMPLOYMENT OPPORTUNITY
The parties shall comply with all Federal equal employment opportunity obligations under 41 CFR 60-1.4(a), 60-300.5(a), 60-741.5(a) and federal labor law obligations under 29 CFR part 471, appendix A and subpart A.
The Seller and its subcontractors at any tier shall abide by the requirements of 41 CFR 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on race, color, religion, sex, national origin, sexual orientation and gender identify. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability.
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