Purchase Order Terms and Conditions

Terms and Conditions

Acceptance – Issuance of this Purchase Order is acceptance by EPS US, LLC or any of its subsidiaries and affiliates (“ePS”) of the Seller’s offer.

By making delivery under this Purchase Order, Seller acknowledges each and every term and condition set forth herein as binding on Seller and any additional term and condition is not binding on ePS unless specifically accepted by ePS in a separately signed written acceptance.

Price – Seller agrees that: (a) the per unit price or total price set forth on the face of this Purchase Order is firm, not subject to increase and includes all applicable taxes; (b) if the price is omitted from this Purchase Order, the price to ePS is not higher than Seller’s lowest prevailing price for items of like quality and quantity in effect on the date of this Purchase Order, and (c) ePS will receive full benefit of any reduction in the price of any items covered by this Purchase Order if that reduction is made subsequent to Seller’s receipt of the Purchase Order.

Payment Terms – Unless otherwise agreed upon in writing or specified on the face of the Purchase Order, payment terms are 60 days from the receipt of goods.

Extra Charges – No extra charges of any kind, including charges for packing or transportation will be paid unless specified in writing by ePS in advance. Seller is required to use applicable ePS packaging specifications, as provided for shipment/deliveries.

Delivery – Time is of the essence in this Purchase Order. If delivery is not completed within the time specified herein, ePS reserves the right, without liability, in addition to its other rights and remedies, (a) to terminate this Purchase Order by notice effective when received by Seller as to stated items not yet shipped and (b) to purchase substitute items elsewhere and Seller shall reimburse ePS for all losses and additional costs and expenses incurred. Items shipped to ePS in advance of any schedule herein may in ePS’s sole discretion, be returned to the Seller at Seller’s expense. Any provision herein for delivery of items by installment will not be construed as rendering the obligation of the Seller severable.

Title and risk of loss for all items purchased by ePS under this Purchase Order transfers to ePS upon ePS’s receipt of the items at: (i) ePS’s designated manufacturing facility for domestic shipments (including intra-EU shipments), and (ii) at the port of destination for international shipments. Unless otherwise designated in this Purchase Order, ePS shall act as agent for Supplier and procure insurance against risk of loss and select a transportation company and procure and pay for the shipment for any items purchased under this Purchase Order.

Warranties –

A. By acceptance of this Purchase Order, Seller warrants that ePS is relying on Seller’s expertise to design, manufacture, install and, where contracted for, to maintain the equipment covered hereunder in a safe manner, and the items to be furnished hereunder will be: (1) in full compliance with ePS’s specifications, blueprints, drawings and data or Seller’s sample, if any; (2) fit for the use intended by ePS; and (3) free from any actual or claimed patent, copyright or trademark infringement. Seller warrants title to the items.

B. The warranties herein are in addition to any warranties: (1) expressly provided under the Uniform Commercial Code as adopted by the State of California; (2) implied under the Uniform Commercial Code as adopted by the State of California; (3) expressly made by the Seller; and (4) will survive for a reasonable period following acceptance and payment by ePS.

Invoicing – Each invoice issued as a result of the Purchase Order must conform to the following:

  1. be rendered separately for each delivery;
  2. not cover more than one Purchase Order;
  3. contain the Purchase Order number under which it is issued;
  4. be rendered to the proper Accounts Payable area as set forth on this Purchase Order.

Each invoice payment term will be calculated from the date the invoice is received by the proper Accounts Payable area.

Inspection – Each and every item purchased hereunder is subject to ePS’s inspection and approval at any place that ePS may reasonably designate. ePS expressly reserves the right, without liability to reject and refuse acceptance of items which do not conform in all aspects to: (a) any instructions contained herein; (b) ePS’s specifications, drawings, blueprints and data: and (c) Seller’s warranties, whether such warranties be expressed or implied. With respect to any items which do not so conform, ePS may, in ePS’s sole discretion hold such items for Seller’s instructions at Seller’s risk upon notification to Seller or return such items to Seller at Seller’s expense. Payment for any item will not be deemed as acceptance.

Changes – ePS reserves the right at any time to change any one or more of the following: (a) specifications, drawings, blueprints and data incorporated in this Purchase Order where the items to be purchased are to be specifically manufactured for ePS; (b) method of packaging, packing or shipment; and (c) place and/or time of delivery. If any such change causes an increase or decrease in the cost of or the time required for the performance thereunder, an equitable adjustment will be made in the price or delivery schedule, or both. Any claim for adjustment by the Seller will be deemed waived unless asserted in writing within thirty (30) days from the receipt by Seller of the change. Nothing contained in this clause relieves Seller from proceeding without delay in the performance of this Purchase Order as changed.

Indemnification – Seller shall indemnify, defend and hold harmless ePS from and against any and all losses, causes of action, damages, liabilities and assessments that may arise pursuant to or in connection with Seller’s performance under the Purchase Order, or the items or services provided hereunder.

Patents – Seller shall indemnify and hold ePS harmless, at Seller’s own expense, against all suits, actions or proceedings in which ePS, any of ePS’s distributees or dealer(s), or the users, lessees or customers of any of ePS’s products, are made defendants for actual or alleged infringement of any copyright, trademark or U.S. or foreign patent resulting from the use or sale of the items purchased hereunder.

In addition to any indemnification as provided herein, if by virtue of a patent infringement suit an injunction is issued against Seller or ePS which prohibits or limits the use of any items purchased hereunder, Seller, at ePS’s request, shall supply ePS with non-infringing replacement items of a similar kind and quality at no additional cost or shall obtain a license for ePS to use infringing items at no additional cost to ePS.

ePS’s Property – Unless otherwise agreed in writing, all tooling, equipment or material of every description furnished to Seller by ePS or specifically paid for by ePS and any replacement thereof, or any materials affixed thereto, remains the property of ePS. Such property, and whenever practical, such individual items thereof, must be plainly marked or otherwise adequately identified as property of eProductivity Software, and must be safely stored separately and apart from Seller’s property.

Seller shall not substitute any property for ePS’s property and shall not use such property except in filling ePS’s orders. Such property, while in Seller’s custody or control, is held at Seller’s sole risk, must be kept insured by Seller at Seller’s expense in an amount equal to the replacement cost with loss payable to ePS. Such property must be prepared for shipment and delivered in good condition, normal wear and tear excepted, to ePS’s plant or at ePS’s option, F.O.B Seller’s plant immediately upon request by ePS. ePS has absolute right to immediate possession of ePS’s property upon demand.

Compliance with the Law – Upon acceptance of this Purchase Order, Seller warrants and represents that is has and will continue during the performance hereunder to comply with all relevant provisions of Federal, State and local laws and regulations. Without limiting the generality of the foregoing, Seller in accepting this Purchase Order represents that the goods to be furnished or the services to be rendered hereunder were or will be produced or performed in compliance with all applicable requirements of Sections 6, 7 and 12 of the Fair Labor Standards Act, as amended, and all valid and applicable regulations and orders of the Administrator of the Wage and Hour Division issued under Section 14 thereof. Seller also warrants and represents that every chemical substance is on the list of chemical substances, or has been submitted for inclusion on such list, as compiled by the Administrator, Environmental Protection Agency, pursuant to the Toxic Substances Control Act. Seller further warrants and represents that the prices charged by ePS are also available to any other customer of Seller who may desire to contract with Seller for the same of similar quantity and quality of goods.

Compliance with Code of Business Conduct and Ethics – Upon acceptance of this Purchase Order, Seller warrants and represents that it has and will continue during the performance hereunder to comply with all applicable anti-human trafficking, anti-slavery, anti-bribery and anticorruption laws, including, but not limited to, the US Foreign Corrupt Practices Act 1977 and the UK Bribery Act 2010, and will also comply with ePS’s Code of Business Conduct and Ethics, available at https://eproductivitysoftware.com/code-of-conduct/.

Confidential Relationship – Seller shall treat as confidential all specifications, drawings, blueprints and data supplied by ePS. Seller shall not disclose any information relating to this Purchase Order to any third person not entitled to receive it.

Nonpublicity – Seller shall not, without the prior written consent of ePS: (a) make any news release, public announcement, denial or confirmation of this Purchase Order or its subject matter, nor (b) in any manner advertise or publish the fact that ePS has placed this Purchase Order.

Termination – Not later than ninety (90) days after termination, Seller shall submit a termination claim, (herein, the ‘Claim’) to ePS, in the form prescribed by ePS, setting forth the proposed amounts due Seller as a consequence of the termination. If Seller fails to submit the Claim within such time, ePS may independently determine the amount due Seller, if any, and such a determination will be final. ePS’s liability for material, completed work, work in progress and terminated work will be limited to those materials, completed work, work in progress and terminated work encumbered by Seller to satisfy Purchase Order delivery dates within ninety (90) days of the effective date of the termination. Seller’s Claim must include costs actually incurred by Seller prior to notification of termination and in anticipation of performing the ordered work to the extent such costs relate to preparation of finished goods due for delivery within ninety (90) days of the termination notice. The Claim must be reduced by: (1) all payments, if any, made to Seller on account of the Purchase Order prior to the effective date of termination; (2) any claim which ePS may have against Seller in connection with the Purchase Order; and (3) the agreed upon price of proceeds of sale of any material applicable to the terminated work or sum equal to the cost to Seller of all materials retained by Seller.

The parties recognize that, in some instances, Seller may purchase raw materials or components and perform work thereon, when no binding purchase order has been issued by ePS. Therefore, unless the parties otherwise agree in writing, ePS willin no event, or under any circumstances whatever, be liable for any work in progress, raw materials, components or any other expenses or damages of any kind or nature beyond those necessary to satisfy ePS’s purchase orders and/or releases previously issued pursuant hereto.

Equal Employment Opportunity – Seller shall comply with all provisions of Executive Order 11246 of September 24, 1965, and all rules, regulations and relevant orders of the Secretary of Labor related to equality of employment opportunity which Executive Order, all regulations and orders are incorporated herein by this reference. Seller shall, upon request by ePS, promptly comply with all requests by ePS to execute all certifications required under Executive Order 11246.

General –

(a) if this Purchase Order is given pursuant to an existing contract it is also subject to the terms of such contract. In the event of any conflict with the provisions hereof, the terms of the contract control. 
(b) Seller shall not assign this Purchase Order nor delegate its performance hereunder without the written consent of ePS. 
(c) Waiver by either party of any default by the other hereunder will not be deemed a waiver by such party of any other default. 
(d) Seller shall not change this Purchase Order nor ship nonconforming items without first obtaining the written consent of ePS. Any material received that is not exactly to specification will be rejected as a breach of warranty of Purchase Order, unless a valid deviation from ePS to the specification exists on the file prior to material receipt. 
(e) If, at ePS’s request, any research and development is performed with respect to any of the items sold hereunder or in anticipation hereof, which results in any patents, trademarks or copyrights, title thereto will vest in ePS. 
(f) If Seller fails to honor any of the above paragraphs, ePS may cancel this Purchase Order without any obligation whatsoever except for shipments which have already been accepted by ePS. 
(g) This Purchase Order is governed by and construed under the laws of the State of California, without reference to conflicts of laws principles. With respect to any disputes arising out of this Purchase Order, each party consents to the personal and exclusive jurisdiction and venue of the state courts in San Mateo County, California or the federal court for the Northern District of California. 
(h) Each provision of this Purchase Order is considered to be on its own. If any provision is found to be unlawful or invalid by a Court of ultimate jurisdiction, then that provision will be considered null and void. All remaining provisions of the Purchase Order will survive in full force and effect. 
(i) The Purchase Order is a full expression of all terms of the agreement and is a complete and exclusive statement of those terms. Any and all representations, promises, warranties or statements by ePS’s agents that differ in any way from the terms of this written Agreement will be given no force or effect. 
(j) These terms and conditions have been drafted in the English language and any translation is furnished solely for the Seller’s convenience. The original English text is binding and will control and prevail in case of any variance or conflict between the English version and any translation.

Effective Date: February 1, 2022