Purchase Order Terms & Conditions

For the purpose hereof, the term “Buyer” shall mean Caliente llc, and the term “Supplier” shall refer to the party from whom Buyer is purchasing such goods or services on the applicable Purchase Order (the “PO”).

No Oral Statements. Neither party has relied upon any oral representations, warranties, or provisions, and no oral statements has been made by either Party that alters the Terms or Conditions of any PO.
Jurisdiction and Venue. All disputes between the parties hereto including any and all disputes arising out of this Agreement shall be governed in all respects, whether as to validity, construction, capacity, performance or otherwise, by the substantive and procedural laws and rules of the State of Indiana. Any dispute arising under or out of this Agreement or between the parties hereto shall be heard by either the state (circuit or superior) court located in Fort Wayne, Indiana or the United States District Court for the Northern District of Indiana, Fort Wayne Division. Each party hereby irrevocably waives all claims of immunity from jurisdiction and any right to object on the basis that any dispute, action, suit or proceeding has been brought in an improper or inconvenient forum or venue. Should suit be filed in a venue or forum other than as provided herein, the filing party shall pay to the other all costs, including, without limitation, attorneys’ fees, travel costs and local counsel fees, associated with dismissing the improperly filed matter or otherwise related to transferring said action to the proper court/venue.
Government Contracts. If this order is issued for any purpose which is either directly or indirectly connected with the performance of a prime contract with the government or a subcontract thereunder, each of the named clauses, as set forth in the Armed Services Procurement regulation in effect on the date of this order, is incorporated herein by reference if such clause (or any earlier edition thereof) is in said prime contract or subcontract, the clauses so incorporated herein applying to Supplier as though Supplier were a prime contractor and in such manner as will enable the Buyer to meet its obligation arising out of the government prime or subcontract.
Force Majeure. In the event of an actual or potential delay or failure of performance the following events, and only the following events, shall constitute force majeure under the PO: (a) acts of God or of a public enemy; (b) acts of Government; (c) fires; (d) floods; (e) epidemics; (f) quarantine restrictions; (g) labor strikes; (h) freight embargoes; (i) unusually severe weather. Neither Buyer nor Supplier shall be liable to the other for any delay or non-performance obligations hereunder in the event and to the extent that such delay or non-performance is due to an event of Force Majeure, provided (i) the Party shall inform the other in writing without delay of its occurrence, probably duration and cessation; and (ii) The Party shall immediately take any necessary measures in order to minimize the effect of such an event on the performance of its obligations under an PO. If the event that caused the delay/non-performance continues for a period of over 30 days, then the Buyer shall have the right to terminate any PO without incurring any liability hereunder.
Survivability. If any section or part of these terms and conditions were to be abjudicated as not valid, or not binding or null and void, the remaining sections and parts would remain in full effect and would continue to be valid and binding upon the parties hereto. Provisions that by their nature should apply beyond the terms will remain in force after any termination or expiration of any purchase order.
Packaging and Shipment. Unless otherwise specified, all goods shall be packaged and otherwise prepared for shipment in a manner which is (i) in accordance with good commercial practices; (ii) acceptable to common carriers for shipment and (iii) adequate to maximize the potential of insuring safe arrival. No delivery shall be made hereunder prior to the date or dates shown unless Buyer has given prior written consent.
Confidentiality and Intellectual Property. All information, including without limitation specifications, samples, drawings, materials, know-how, designs, processes, and other technical, business, or financial information, that: (a) has been or will be supplied to Supplier by on or on behalf of Buyer; or (b) Supplier will design, develop, or create in connection with the PO; as to individual items or a combination of components or both, and whether or not completed, and all derivatives of (a) and (b) that Supplier has or will design, develop or create are deemed to be “Confidential Information” of Buyer. All Confidential Information is work made for hire and made in the course of services rendered. All rights to it belong exclusively to Buyer, with Buyer having the sole right to obtain, hold, and renew, in its own name or for its own benefit, patents, copyrights, registrations, or other appropriate protection. To the extent that exclusive title or ownership rights in Confidential Information may not originally vest in Buyer, Supplier irrevocably assigns transfers and conveys to Buyer all right, title, and interest therein. For a period of (5) years after termination or expiration of the PO, Supplier shall not disclose and shall, to the extent within its control, prevent the disclosure by others of the Confidential Information to any third party without the prior written consent of Buyer. Supplier agrees not to use, or make copies, of the Confidential Information except as required for the performance of it obligations under the PO, and agrees to limit access to the Confidential Information to its own employees, agents and consultants strictly on a “need to know” basis; provided, however, that such agents and consultants have executed an agreement with Supplier with confidentiality provisions at least as restrictive as those contained herein. Upon expiration or termination of the PO and if requested by Buyer, Supplier shall promptly return all of the Confidential Information. Each party acknowledges that the disclosure of confidential information or proprietary information of the other may give rise to irreparable injury that may be inadequately compensable in damages. To the extent Supplier breaches, or Buyer could reasonably believe Supplier may breach, its confidentiality obligations stated herein, Supplier consents to Buyer obtaining injunctive relief to prevent, or otherwise limit the damages of, any such breach or threatened breach. If the parties have signed a separate non-disclosure or confidentiality agreement, the terms of that agreement shall take precedence over the terms of this section provided separate agreement is still in force at time of issuance of a PO.
Indemnification. Supplier shall indemnify, defend and hold harmless Buyer, its shareholders, subsidiaries, affiliates, officers, directors, attorneys, employees, agents, successors and assigns from and against any and all losses, obligations, liabilities, claims, suits, judgments, damages (whether incidental, consequential, or otherwise), penalties, fines, costs and expenses (including, without limitation reasonable attorney’s fees) arising out of, or in connection with (a) the violation or alleged violation of any law, ordinance, regulation, or rights of third parties by reason of performance or nonperformance by Supplier of any PO; (b) breach of any term, condition, covenant, agreement, representation or warranty by Supplier; (c) any infringement or alleged infringement of any patent, copyright, trademark, or other intellectual property relating to the use or design of any equipment, materials, goods or services furnished by Supplier under any PO or the processes or actions employed by or on behalf of Supplier in connection with any PO; (d) injury or death to persons or any real or personal property damage, arising from or relating to the goods or services provided by Supplier under any PO or acts or omissions of Supplier or its officers, directors, employees, agents, contractors or subcontractors; (e) claims arising from or relating to injuries to or death of Supplier’s employees, including but not limited to claims based upon allegations of negligence of Buyer; or (f) any recall, product correction, seizure, or similar action resulting from the Products / Services offered by Supplier under this Purchase Order.
Insurance. Supplier agrees to maintain commercial general liability insurance in an amount not less than $1,000,000 per occurrence and $4,000,000 aggregate, and statutory workers compensation and employer’s liability insurance in an amount not less than $1,000,000 each accident and $1,000,000 each employee. Supplier shall name Buyer as an additional insured and provide certificates of insurance evidencing such coverage. All such insurance shall (a) cover all products provided by Supplier to Buyer in connection with this Purchase Order, whether at the premises of Supplier or Buyer or an of Buyer’s customers, (b) provide waiver of subrogation in favor of Buyer, and (c) be primary over any other insurance available to Buyer or any self-insurance program of Buyer. In the event that this Purchase Order requires Supplier to perform labor or services on any property of Buyer, Supplier shall be responsible for any damages or injuries to persons or property, including Buyer’s employees and property that occur as a result of the fault or negligence of Supplier, its agents, servants, or employees in connection with the performance of such work, and Supplier shall defend, indemnify, and save Buyer harmless from and against any liability for such damages or injuries, including all costs and expenses.
Acceptance. Buyer’s payment of the purchase price, or any part thereof, does not constitute acceptance of the goods or services. Goods and services are subject to inspection and rejection by Buyer within a reasonable time following receipt by Buyer. Risk of loss does not pass to Buyer until acceptance of the goods or services. To the extent practicable, defective or nonconforming goods will be returned to supplier at Supplier’s sole cost and expense, and the risk of loss with respect to such defective or nonconforming good shall never pass to Buyer and shall remain with Supplier. Any additional terms proposed in Supplier’s acceptance of Buyer’s offer, which add to, vary from, or conflict with the terms herein are hereby objected to by Buyer. Any such proposed terms shall be void and the terms herein shall constitute the complete and exclusive statement of terms and conditions of the contract between the parties and may hereafter be modified only by written instrument executed by authorized representatives of both parties. Any of the following shall constitute Supplier’s unqualified acceptance of the PO and these terms and conditions: (a) acknowledgement; (b) furnishing of any part of the goods, services or products; (c) acceptance of any payment for the goods, services or products: or (d) commencement of performance.
Cancellation. Buyer may cancel or terminate any PO, or any portion thereof, at any time, for any reason, including for the convenience of the Buyer without being liable for any termination fee or any other penalty or charge. Enumeration of certain rights does not exclude others given by law. In the event that Buyer cancels or terminates any PO, Buyer shall pay to supplier, as liquidated damages, an amount equal to the actual direct costs incurred by Supplier in performing under such PO up to the date of cancellation or termination less any amounts previously paid by Buyer for conforming goods or services properly performed under such PO; provided, however, that Buyer shall not be obligated to pay Supplier any costs incurred by Supplier to the extent Supplier can use or incorporate the goods, services or products for or into other purchase orders of Buyer, or for purchase orders, or for the benefit, of any other customer of Supplier.
Prices and Payments. All prices specified herein are firm and shall not be subject to change unless evidenced by a written amendment to this agreement signed by Buyer and Supplier. Supplier’s total price shall be deemed to include all national, federal, state and local sales, use, excise, value added, privilege, payroll, occupational and any other taxes, fees or duties applicable to the goods and/or services furnished to Buyer. No charges of any kind, including, without limitation, crating, boxing, packing, transporting, unloading, assembling or installing any goods, will be allowed unless specifically agreed to in writing by Buyer. Buyer shall be entitled at all times to off-set any amount owing at any time from Supplier to Buyer against any amount payable at any time by Buyer in connection with this agreement or its amendments and ay subsequent purchase orders between Buyer and Supplier.
Export Control. This provision applies to any Supplier supplying goods or services which are intended for items controlled by the International Traffic in Arms (ITAR) 22 CFR 120-130. If not specified on the PO it is the Suppliers responsibility to confirm the requirements from the Buyer regarding ITAR restrictions. Information furnished to the Supplier under any Request for Quote or Purchase Contract may contain technical data as defined in the International Traffic in Arms Regulation (ITAR) at 22 CFR 120.10. Supplier is advised and hereby acknowledges that such technical data may not be exported, disclosed or transferred to any foreign person, as defined in the ITAR at 22 CFR 120.16, without first complying with all requirements of the ITAR 22 CFR 120-13- including requirements for obtaining any required export authority. Supplier shall indemnify and hold Buyer harmless from and against any and all claims, liabilities and expenses resulting from Seller’s failure to comply with export laws and regulations of the United States.
Supplier hereby confirms that it is a registered manufacturer with the Department of State. Supplier is prohibited from allowing any of its employees who are foreign persons, as defined in the ITAR at 22 CFR 120.16, to perform work in support of any Purchase Contract without first obtaining Buyer’s approval.
Supplier certifies, to the best of their knowledge and belief, that:
1. Supplier and/or any of its Principals:
  1. Are not presently debarred, suspended, proposed for debarment, or declared ineligible for the award of contracts by any Federal Agency
  2. Have not, within a five-year period preceding any Contract, been convicted of or had a civil judgment rendered against them for: commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State, or Local) contract or subcontract; violation of Federal or State antitrust statutes relating to the submission of offers; or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, violating Federal criminal tax laws, or receiving stolen property
  3. Are not presently indicted for, or otherwise criminally or civilly charged by a governmental entity with, commission of any of the offenses enumerated in (1)(b) of this provision and Supplier has not, within a three year period preceding this offer, had one or more contracts terminated for default by any Federal Agency
Limited Life and Age Control Items. Products on this Purchase Order require submittal of date of manufacture when shelf life is based on date of manufacture, or date of shipment from the manufacturer when shelf life is based on date of shipment, as appropriate, based on specified method of shelf life determination. Upon shipment, shelf life shall meet the minimum shelf life specified on the order. If no shelf life is specified, 80 percent of the shelf life shall be remaining on products on this order.
Changes. Supplier agrees that it will not invoke any changes, method or location of manufacturing during the terms of this order without Buyer’s written consent. Supplier further agrees that any contemplated changes in process, method or location will be submitted to Buyer, in writing, in sufficient time to enable Buyer a reasonable opportunity in which to evaluate such changes.
Foreign Object Debris (FOD) Control. Supplier shall maintain a Foreign Object Control program to assure work is accomplished in a manner that prevents foreign objects, material or residue from entering and remaining in deliverable parts. Maintenance of the work area and control of tools, parts and materials shall preclude the risk of FOD incidents. Tooling, jigs, fixtures, and test or handling equipment shall be maintained in a state of cleanliness and repair to prevent FOD damage. The supplier shall document and investigate all FOD incidents, assuring elimination of the root cause. Buyer shall have the right to perform inspections, verification and FOD control program at Supplier’s facility to assure program documentation and effectiveness.
Record Retention. Supplier (and sub-tier sources) involved in this purchase order, shall retain pertinent quality records for a period of Twenty (20) years, or longer as specified by customers. Companies discontinuing or suspending business activities within that period will notify Buyer and seek their instruction for the disposition of those records.
Warranty. Supplier expressly warrants that all products shipped pursuant to any purchase order shall be new; shall conform to applicable specifications, drawings, other data and descriptions furnished, and samples; shall be merchantable; shall be free of defects in design, material and workmanship; and shall be fit for the purpose intended. These warranties shall run to Buyer, its successors, assigns, customers, and user of the products. Without limiting these warranties or the remedies to which Buyer may be entitled, supplier shall, at Buyer’s option, replace or refund the invoice price of any products that do not conform to Supplier’s warranties. All transportation charges and other costs for the return and, if applicable, the replacement of products shall be paid by Supplier. Supplier warrants all products against Epidemic Failure. An “Epidemic Failure” means a products failure exhibiting the same root cause symptoms as reasonably determined by Buyer. In the event of an epidemic failure, Supplier shall promptly establish, in a manner fully satisfactory to and agreed upon by Buyer, a procedure to resolve and replace all defective products, the full of which procedure shall be borne by Supplier.
Traceability and Labeling. If applicable, Suppler warrants that traceability information, such as date, lot number, code number, package markings, and the like will be provided to facilitate tracing. Supplier shall develop and maintain a reliable system of identifying and labeling products to assure that if a defect or non-conformation is found, Supplier will be able, to at a minimum, (i) determine what other products may have a common defect/non-conformance or otherwise be affected by the defect/non-conformance, (ii) to identify the time of and the location of the manufacture of the defective/non-conforming products, and (iii) to identify the specific shipments that contain defective/non-conforming products to Buyers as well as the time and place of delivery of such shipments.
Tooling, Equipment and Documentation. All specifications, drawings, or other documents and data furnished by Buyer, and all tools, dies, molds, jigs, fixtures, patterns, hobs, electrodes, punches, artwork, screens, tapes, templates, machinery, special test equipment and gauges which have been furnished, paid for, or charged against Buyer, or which have had their cost amortized shall be deemed Buyer’s property, treated as confidential information and delivered and maintained in good condition, normal wear and tear expected, by Supplier to Buyer, Ex Works Supplier plant, immediately upon demand. Supplier warrants that said tooling, equipment and documentation will not be used for any work to the production or development of any material or part other than for Buyer without Buyer’s written permission. Buyer shall have the right to enter onto Supplier’s premises at all reasonable times to inspect such property and Supplier’s records with respect thereto.
Quality. Supplier shall maintain a quality system that is at all times acceptable to Buyer. Supplier will at a minimum conform to internally recognized quality control standards and inspection systems, as well as related standards and systems that are directed by Buyers. Supplier also agrees to participate in supplier quality and development programs of Buyer as directed by Buyer. Supplier and its sub-tier are subject to quality assurance audits and source surveillance by Buyer and shall be capable of providing valid evidence of compliance with all provisions of any purchase order. All goods may be inspected and tested by Buyer at all reasonable times and places. If inspection is made on Supplier’s premises, Supplier will provide, without charge, all reasonable facilities and assistance required for the inspection and tests. Supplier’s standard inspection, quality testing system and quality control plan must be made available and approved by Buyer in writing. All inspection, testing, and quality records, including sub-tier records relating to the purchase order, will be maintained by supplier and during the performance of the PO, and for such longer periods if specified by Buyer.
Delivery. Supplier shall maintain production and delivery capacity so the deliveries can be made in accordance with Buyer’s purchase orders. Supplier shall immediately inform Buyer if there is any risk of variation from the schedule and shall take all available measures to avoid such variations. Buyer and Supplier are aware that actual need for the item(s) covered under the purchase order are driven by the requirements of Buyer’s customers and that both parties must adopt a flexible approach in order to adjust to those requirements. If the Supplier fails to meet ship dates as required, the supplier shall expedite the freight at no additional expense to Buyer. Buyer reserves the option to return at Supplier’s expense any shipment of products or services either in excess of the amount stated on the face of this purchase order, or in advance of the agreed upon schedule. Such shipments will be held at Supplier’s risk and expense, including reasonable storage charges, while awaiting shipping instructions. Return shipping charges for excess quantities will be at Supplier’s expense. Items for which return shipping instructions are not received within a reasonable time may be destroyed or sold by Buyer at a public or private sale and the proceeds, if any, applied toward storage charges.
Compliance. Supplier, and any goods or services supplied by Supplier, will comply with all applicable laws, including rules, regulations, orders, conventions, ordinances and standards, that relate to the manufacture, labeling, transport, import, export, licensing, approval or certification, including laws relating to environmental matters, hazardous materials, hiring, wages, hours and conditions of employment, subcontractor selection, discrimination, occupational health or safety and motor vehicle safety. The PO incorporates by reference all clauses required by these laws. All materials used by supplier will satisfy current governmental and safety constraints on restricted, toxic and hazardous materials as well as environmental, electrical and electromagnetic considerations that apply to the country of manufacture, sale or destination. Supplier certifies, warrants, and guarantees to Buyer that its product(s) are in full compliance with all applicable laws and regulations, including but not limited to:
1. Supplier, in the performance of the PO, shall comply with all applicable local, state and federal laws, orders, rules, regulations, ordinances, guidelines, directives, FAA, and other transportation regulations, and shall procure all licenses or permits, pay all fees, and other required charges. Supplier further represents, where applicable, that each chemical substance constituting or contained in products sold or other transferred to Buyer hereunder is on the list of chemical substances compiled and published by the Administrator of the Environmental Protection pursuant to the Toxic Substances Control Act (15 U.S.C. Sec 2601 et seq) as amended. Upon receipt by Buyer of any information, which would reasonably lead to the conclusion that a chemical substance or any other toxic substance, which is the subject of an PO, was manufactured, processed, transported or distributed in commerce in violation of The Toxic Substance Control Act, Buyer may suspend or terminate such PO.
2. Supplier shall: (i) comply with the requirements of Foreign Corrupt Practices Act, as amended, (FCPA) (15 U.S.C. §§78dd-1 et. Seq.), regardless of whether Supplier is within the jurisdiction of the United States: (ii) neither directly nor indirectly, pay, offer, give or promise to pay or give, any portion of monies or anything of value to a non-U.S. public official or any person in violation of the FCPA and/or in violation of any applicable country laws relating to anti-corruption or anti-bribery; and, (iii) Supplier hereby agrees not to interact with any government official, political party or public international organization on behalf of Buyer without the prior written permission of the Buyer.
3. Supplier, where applicable, agrees to meet its compliance obligations with regards to European Regulation (EC) No. 1907/2006 (“REACH”) and Article 4.1 of the European Parliament Directive 2002/95/EC (“RoHS Directive”).
4. Supplier shall ensure that parts and products supplied to Buyer do not contain “Conflict Minerals” (gold, tin, tantalum and tungsten) or their derivatives that are sourced from the Democratic Republic of Congo (“DRC”) or adjoining countries. Suppliers are expected to establish policies and perform due diligence consistent with the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas.
5. Supplier is in material compliance with, and requires its sub-tier suppliers and any person(s) under its control to comply with, all applicable local, national, and international laws, rules and regulations relating to supply chain transparency concerning modern slavery and human trafficking, including the California Transparency in Supply Chains Act of 2010 and the U.K. Modern Slavery Act of 2015, which require businesses to provide disclosures and take other actions concerning their efforts, to address the issues of slavery and human trafficking in their supply chains. Supplier represents and warrants that it shall abide by and comply with the requirements of these laws and shall require its employees, agents, contract labor and subcontractors to abide by and comply with the requirements.
6. Supplier shall comply, and shall verify compliance by all subcontractors, with the provisions of the Equal Employment Opportunity Clause contained in Section 202 of Executive Order 11246 of September 24, 1965, as amended.
Advertising and Use of Name. Supplier shall not, without first obtaining written consent of an authorized representative of Buyer, in any manner advertise or publish the fact that Supplier has furnished or contracted to furnish to Buyer the articles or services provided for in the PO. Supplier agrees that it shall not use the Buyer’s name or logo, nor any adaptation or variation thereof, in any manner whatsoever (including but not limited to, website(s), press releases, reference lists, or similar public announcements), without the Buyer’s prior written consent in each instance.
Sellers warrants that all items provided to Buyer under any Purchase Order(s) are genuine, new and authentic. Seller also warrants that all parts are sourced directly from the Original Equipment Manufacturer (OEM), Original Component Manufacturer (OCM) or authorized distributors. Nothing provided under any Purchase Order(s) shall be “suspect counterfeit” or “counterfeit) parts. Seller shall maintain a method of traceability that ensures the authenticity of all parts, including documentation from the OEM/OCM/authorized distributor for a minimum of 7 years and be made available upon Buyer’s request. If seller, for any purpose, intends to use an independent distributor or broker they must obtain prior written approval from the Buyer and provide a documented inspection/testing plan. Seller is liable for all costs associated with the removal, replacement and testing of counterfeit parts, including any damage to end systems. The Buyer reserves the right to withhold payment for any suspect parts until they are proven authentic. Seller shall include this clause (or a substantially similar clause) in all subcontracts for parts that will be delivered to the Buyer.
Non-Assignment. This Agreement and the rights and obligations hereunder may not be assigned by Supplier without the written prior consent of Buyer