Terms & Conditions

These Standard Terms and Conditions shall apply to all offers made by COTSWORKS (hereinafter referred to as the “Seller”), and all contracts (each hereinafter referred to as a “Contract”) made between the Seller and any person, firm, or entity (hereinafter referred to as the “Buyer”) purchasing products, material, parts, and services (hereinafter “Products”) from the Seller. These Standard Terms and Conditions, together with the terms of any quotation, confirmation, or invoice given by the Seller shall constitute the entire agreement between the Seller and the Buyer with respect to the sale and delivery of the Products and the performance of any work by the Seller, and no variation or waiver or addition to these Standard Terms and Conditions shall be binding unless expressly confirmed by the Seller in writing. These Standard Terms and Conditions shall have precedence over and be preferred to any conditions appearing on the Buyer’s purchase order document or other documents emanating from the Buyer and any such Buyer’s conditions shall be of no force and effect unless expressly accepted in writing by the Seller. No person has authority to make any representations on the Seller’s behalf and the Buyer shall not rely on any representation unless made or confirmed in writing by the Seller.

Unless previously withdrawn, Seller’s offer is open for acceptance within the period stated therein, or when no period is stated, within thirty (30) days from the date thereof. Any purchase order received by the Seller, whether in response or not to such offer, and any agreement and contractual change shall only be binding on the Seller at such time as the Seller gives to the Buyer its written acceptance thereof. All price lists, brochures, and other literature are as accurate as possible. They shall only be binding on the Seller if they are expressly confirmed in writing. In the event of any variations in the order requested by the Buyer and accepted by the Seller, the Seller shall be entitled to charge the Buyer all additional costs and expenses incurred by the Seller in connection therewith and the Seller may set a new delivery date, all subject to payment by the Buyer for the work already performed by the Seller. No order for the Products may be cancelled by the Buyer without the written consent of the Seller. The Buyer shall indemnify the Seller against all costs incurred by the Seller in connection therewith.

Prices shall be quoted for delivery of the Products to the agreed location in US Dollars. The price shall include Seller’s standard packing and any special packing shall be charged to the Buyer. Prices quoted relate to the stipulated quantity only.

 

The quoted prices are based on the costs of materials and labor prevailing on the date of quotation. Unless otherwise agreed in writing, if before the date of actual delivery variations occur in the above mentioned costs, the Seller shall be entitled to revise the prices quoted to provide for such variations. In the event of a change or an introduction by any governmental regulations of any taxes, levies, or import duties, the Seller shall be entitled to pass on to the Buyer the price increase resulting thereof. All prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided that Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income.

Unless otherwise agreed in writing, all accounts are strictly NET and are due for payment within thirty (30) days following dispatch of the Products or, where applicable, the date on which the Products are available for collection. Interest on late payment will be charged to the Buyer at a rate of one and one-half percent (1.5%) per month (or part month) on the amount still outstanding. In addition, all costs and expenses, legal, judicial, or otherwise, incurred by the Seller in recovering the sums due shall be fully borne by the Buyer.

 

If the Buyer fails to effect payment on the due date, the Seller reserves the right, in addition to any other legal rights and remedies available to it, to suspend further deliveries of Products until such time as payment is received from the Buyer or to terminate the Contract. Should the Contract be terminated by the Seller, the Buyer will be liable to the Seller for the cost of all Products actually delivered or completed and ready for delivery. The Seller further reserves the right to claim the fair and reasonable price for partly completed Products based on manufacturing costs up to the date of termination.

 

If the Buyer fails to take delivery of the Products under any Contract within eight (8) days of the date of notification that they are ready for delivery, the Seller shall have the right to invoice for payment at any time after the expiry of said period and payment shall be due thereon as if delivery had been made.

 

The Seller reserves the right at any time, even in the course of performance of the Contract, to require the Buyer to furnish a guarantee of payment whose terms shall be agreed upon in writing by the Seller. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller.

 

If the event that Buyer makes an assignment for the benefit of creditors, files a petition in bankruptcy, or is adjudicated bankrupt or insolvent, or has a receiver or trustee in bankruptcy appointed to all or part of its assets, or if any action is taken to dissolve, liquidate, or wind up the Buyer, the Seller shall have the right to terminate upon written notice and with immediate effect the Contract, without prejudice to its rights to claim compensation for all costs and damages incurred by the Seller in connection therewith.

Title to any Products sold under any contract shall not pass to the Buyer until the Seller has received payment in full of all sums invoiced together with any interests accrued thereon and other charges. Until that time, the Seller shall remain the full legal and beneficial owner of the Products and the Buyer shall hold any proceeds of sale of the Products as trustee or as bail for the Seller free from any charge, lien, or other encumbrance. The Buyer agrees that it will assign to the Seller (upon the Seller’s request) all of its rights under a contract of sale against any subsequent buyer of the Products, or any of them or of the equipment in which the Products have been incorporated. Until such time as title to the Products passes to the Buyer or until such time as the Products are sold, the Buyer shall keep the Products fully insured with a reputable insurer and shall store them in such a way that they can be readily identified as being the Seller’s property. The Seller has the right to recover possession of all or any of the Products or to seize any of the Products at any time and is entitled to enter upon any of the premises of the Buyer for the purpose of doing so. If the Buyer makes an assignment for the benefit of creditors, is adjudicated bankrupt or insolvent, has any proceedings commenced against it for reorganization, readjustment of debt, dissolution or liquidation, or has its business wound up, the Seller shall be entitled to claim back as its property any Products delivered but not yet paid for, or not paid for in full, without prejudice to its rights to demand compensation for any losses or damage resulting thereof.

Unless otherwise agreed in writing, all deliveries of Products shall be made Ex Works of Seller’s factory. All risks of loss or damage to the Products shall pass from the Seller to the Buyer when the Products are delivered to the Buyer in accordance with the agreed trade term as defined. The Seller may make deliveries in installments which will be invoiced individually. The Buyer will make payment in accordance with clause 4 of these Standard Terms and Conditions.

 

Times specified for delivery of the Products are given and intended as estimates only unless otherwise agreed in writing. Where a firm time for delivery has been expressly agreed upon, no delivery shall be considered overdue until the Buyer has made a written request for delivery and given the Seller a reasonable opportunity to comply therewith. The Buyer shall have the right to cancel the Contract by serving written notice to the Seller if the Seller is unable, due to circumstances for which it is fully responsible, to comply with the extended or postponed delivery time and the Buyer has stated in writing when agreeing to the new delivery time that it will refuse to take delivery if the new delivery date is not met. In no event shall the Seller be liable for indirect, special, consequential, or punitive damages arising out of or in connection with the late delivery of the Products.

 

The Buyer shall inspect or have inspected the Products delivered and shall notify the Seller in writing of any discrepancy regarding the quantity, specification, or quality of the Products to the order within fourteen (14) days of receipt of the Products. Once this time period has elapsed, the Buyer shall be deemed to have accepted the Products. If Buyer timely notifies Seller of any nonconforming Products, the Seller shall replace incorrect Products and deliver additional Products to meet the ordered quantity. The foregoing shall be Buyer’s exclusive remedy with respect to nonconforming Products. The Buyer shall not return any Products without the prior written permission of the Seller. Submitting a claim shall at no time release the Buyer from its obligations under the Contract.

Buyer acknowledges that unless it is purchasing a Seller Product described in the immediate preceding paragraph, only the warranties offered by the manufacturer are available. In purchasing such a product from Seller, Buyer agrees to rely upon the manufacturer’s specifications and warranties and is not relying upon any statements, specifications, illustrations, photographs, or other document provided by the Seller. Buyer has familiarized itself with the manufacturer’s warranty prior to purchasing the product from Seller and understands that warranty claims must be presented directly to the manufacturer and not to the Seller.

All tools, molds, and fixtures which are developed by the Seller under the Contract or made by the Seller under any purchase order from the Buyer shall remain at all times the exclusive property of the Seller.

 All parties to the Contract shall maintain in strict confidence and shall not, without the other party’s prior written authorization, disclose to third parties any documents and confidential information designated by the furnishing party as confidential and furnished to the other party pursuant to the Contract. The receiving party shall not use the other party’s confidential information for any other purpose than the performance of the Contract. Neither party shall be liable for disclosing any confidential information if it is known or becomes known to the general public other than through an act of negligence by the Receiving Party. Upon termination of the Contract either party shall return to the other party all confidential information which is in its possession. TheBuyer shall not make any advertisement, publicity, or communication regarding the Contract or the Seller’s relationship with the Buyer without the Seller’s prior written consent. The parties’ obligations under this Clause shall survive the termination of the Contract.

Any waiver of any provision of these Standard Terms and Conditions of Sale, or a delay by either party in the enforcement of any right hereunder, shall neither be construed as a continuing waiver nor create an exception of non-enforcement of that or any other provision or right. If any provision of these Standard Terms andConditions of Sale is determined illegal or unenforceable by any court of competent jurisdiction, such provision shall be deemed separable from the remaining provisions of these Terms and Conditions and shall not affect or impair the validity or enforceability of the remaining provisions.

Any notice required to be given under these Terms and Conditions must be in writing and is effective upon delivery by certified mail or confirmed facsimile transmission to the other party at the address identified in the Order.

Products and technical data acquired under these Terms and Conditions are subject to U.S. and other government export control laws and regulations, including but not limited to the Arms ExportControl Act (22, U.S.C., Sec 2751, et seq.) and the associated International Traffic in Arms Regulation (22 CFR 120-130), the Export Administration Regulations, 15 CFR 730-774, and sanction programs administered by the U.S. Treasury Department’s Office of Foreign Assets Control, each as amended from time to time (collectively, the “Export Control Laws and Regulations”). Buyer agrees that it will comply with the Export Control Laws andRegulations in their handling, use, and disposition of the products and related technical data, including in connection with any retransfer or re-export of the products and information obtained from the Seller pursuant to these Terms and Conditions. The products and associated information transferred in accordance with these Terms and Conditions are authorized for export only to the country of ultimate destination for use by the ultimate consignee or end-user(s) herein identified. They may not be resold, transferred, or otherwise disposed of, to any other country or to any person, entity, or organization other than the authorized ultimate consignee or end-user(s), either in their original form or after being incorporated into other items, without first obtaining approval as required under the Export Control Laws and Regulations and any other applicable U.S. laws and regulations.

Neither party shall be liable for the failure to perform any of its obligations under these Terms and Conditions if such failure is caused by the occurrence of any act of force majeure or any other contingency beyond its reasonable control. The Seller shall promptly notify the Buyer of the occurrence of the force majeure event with the indication of the scope and effect. The performance of the Seller’s obligations shall be suspended for the term of the force majeure event. Should the force majeure event last for more than sixty (60) days from the date of the excused performance due date, the Buyer shall be entitled to terminate the Contract with fifteen (15) days prior written notice.

The Buyer shall not assign the Contract in whole or in part to any third party.

This Contract shall be governed by and construed in accordance with the laws of the State of Ohio. Each party agrees that any dispute between the parties will first be submitted in writing to the designated senior executives of the Seller and the Buyer who will meet in an effort to resolve such dispute within thirty (30) days. In the event the executives are unable to resolve the dispute and if both parties are in agreement, the dispute may be arbitrated in accordance with the rules and procedures set forth in a mutually agreed arbitration agreement. Except as contemplated by this Section 16, any legal suit, action, or proceeding relating hereto shall be instituted in the federal courts of the United States of America or the courts of the State of Ohio in each case located in the City of Cleveland and County of Cuyahoga; and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding

The Buyer shall indemnify and hold the Seller harmless from any liabilities, claims, costs (including reasonable attorney’s fees), expenses, and damages in connection with the infringement by the Seller of a third party’s patent, copyright, or other intellectual property right which arises from the Seller’s compliance with the Buyer’s design or specifications.

EXCEPT AS EXPRESSLY PROVIDED HEREIN, ALL WARRANTIES, CONDITIONS,REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THE EQUIPMENT(WHETHER EXPRESS OR IMPLIED) ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY THE SELLER, ITS LICENSORS OR REPRESENTATIVES, OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE AND CONFORMITY TO MODELS OR SAMPLES, OR WARRANTY OF NON-INFRINGEMENT) ARE HEREBY OVERRIDDEN,EXCLUDED, AND DISCLAIMED.

 

THIS DISCLAIMER DOES NOT APPLY TO THE MANUFACTURER’S WARRANTY, IF ANY.

THE SELLER DOES NOT WARRANT THAT THE PRODUCTS IT SELLS WILL WORK IN ALL COMBINATIONS OF HARDWARE AND SOFTWARE SELECTED FOR USE BY THE BUYER AND THE SELLER MAKES NO WARRANTY FOR THE DESIGN, FUNCTIONALITY, OR PERFORMANCE OFANY INTEGRATED SYSTEM CREATED USING THE SELLER’S PRODUCT.

 

COTSWORKS CURRENTLY PROVIDES TRACEABILITY TO THE FINAL ASSEMBLY LEVEL.

WITH THE EXCEPTION OF CLAIMS FOR DEATH OR PERSONAL INJURY, IN EACH CASE WHERE AND TO THE EXTENT THAT APPLICABLE LAW REQUIRES SUCH LIABILITY, UNDER NO CIRCUMSTANCES WILL THE SELLER BE LIABLE FOR ANY CONSEQUENTIAL,INDIRECT, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON THE BUYER’S CLAIMS OR THOSE OF ANY THIRD PARTIES (INCLUDING,BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, LOSS OF PRODUCTION, GOODWILL, LOST PROFITS,USE OF MONEY OR USE OF THE PRODUCTS, INTERRUPTION IN USE OR AVAILABILITY OF DATA,STOPPAGE OF OTHER WORK, OR IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION,NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE. IN NO EVENT WILL THE AGGREGATE LIABILITY WHICH THE SELLER MAY INCUR IN ANY ACTION OR PROCEEDING EXCEED THE GREATER OF THE TOTAL AMOUNT ACTUALLY PAID BY BUYER FOR THE SPECIFIC PRODUCT THAT DIRECTLY CAUSED THE DAMAGE OR $25,000.

The parties acknowledge and agree that neither of them has made any representation with respect to the subject matter of this Agreement or any representations inducing the execution and delivery hereof except as specifically set forth herein, and each of the parties hereto acknowledges that he or it has relied on his or its own judgment in entering into the same.

(a) This Purchase Order (“Order) is placed subject only to the terms and conditions included in this Order. Reference to any proposal from SELLER is only for the purpose of specifying basic information concerning price, description of the item(s), quantities, terms of payment, and delivery. (b) Any of SELLER’s Terms and Conditions which are in addition to or are inconsistent with these Terms and Conditions will be construed as proposals for addition to this order and will not be binding unless agreed to in writing by the BUYER. Commencement of performance by the SELLER in the absence of BUYER’s agreement to the proposals will constitute SELLER’s acceptance of these “COTSWORKS, LLC Purchase Order Terms and Conditions”.

SELLER shall furnish the supplies and services called for by this order at the price stated in this Order. Any increases or decreases in any stated price will only be reflected through an amendment to this Order. If this Order is placed on an open price basis, and in absence of subsequent agreement, then the price to BUYER shall not be higher than SELLER’s lowest prevailing price for the same or substantially similar supplies or services of comparable quantity in effect on the date of this Order.

(a) Vendor should observe the “Ship Via” instruction on face of order. Should the “Ship Via” instruction not be followed, Vendor is liable for extra charges over those which would have been incurred if specified routing had been followed. (b) All shipments are to be made “Not insured”. Vendor is liable for charges incurred as consequence of not observing this instruction.

SELLER may not assign its rights or obligations under this order without the prior written consent of BUYER. Notwithstanding this, the SELLER may assign the claims for monies due or to become due under this Order. Should such an assignment of monies be made, SELLER shall immediately notify BUYER and supply BUYER promptly with two copies of any such assignment. Payment to an assignee of any such claim shall be subject to setoff of recoupment against any claim(s), which BUYER may have against SELLER and a provision setting forth this right of the BUYER shall be included in each such assignment. BUYER reserves the right to make direct settlements and/or adjustments in the price with SELLER under the terms of this Order, notwithstanding any assignment of claims for monies due or to become due hereunder and without notice to the assignee.

Except for supplies proprietary to SELLER, none of the contemplated work to be performed hereunder may be subcontracted without BUYER’s prior written consent and approval. However, SELLER’s acts in obtaining parts and materials normally purchased by SELLER and required in fulfilling this Order shall not be construed as a subcontract.

The SELLER represents that it now has, or can readily procure without assistance of the BUYER or the Canadian or U.S. Government as the case may be, all facilities necessary for the timely performance of the Order. Unless Sections 6 is applicable to certain SELLER-acquired items, special tools and equipment (e.g. dies, patterns, jig, molds, fixtures, etc.) used in the manufacture of the articles herein ordered shall be furnished by, and at the expense of, SELLER and shall be kept in good condition for follow-on order, and when necessary, shall be replaced by SELLER without expense to BUYER.

(a) All materials (e.g. raw stock, components, etc.), including but not limited to special tools and equipment furnished by BUYER to SELLER in connection with this Order shall remain BUYER’s property. In addition, all special tools and equipment either: (i) identified as a reimbursable item in the Order, or (ii) specifically acquired for performance of this Order with the cost being fully amortized or otherwise recovered in the price of the supplies to be delivered hereunder, shall, upon such payment, become BUYER’s property. All of BUYER’s property shall be: (i)used only in filling orders for BUYER, (ii)kept segregated and clearly marked as BUYER’s property, (iii)maintained in good condition, normal wear and tear being accepted, and surrendered to BUYER upon demand. SELLER shall not be responsible for replacing bailed materials satisfactorily accounted for in the manufacturing and assembly process. (b) While BUYER-owned property of whatever kind is in SELLER’s possession or control. SELLER shall be responsible for all loss or damage and shall, at its own expense, secure, or maintain extended insurance coverage in an amount sufficient to cover replacement cost.

The SELLER agrees and undertakes that it shall not produce for or quote prices to any other party those items which are governed by specifications considered proprietary by the BUYER. Such items would be those for which the SELLER provides to the BUYER wholly or in part a design to be made to the BUYER’s specifications and are not part of the SELLER’s standard product offering.

All supplies and services ordered will be subject to final inspection and approval by BUYER after delivery, notwithstanding prior payment, it being expressly agreed that payment shall not constitute final acceptance. BUYER may reject and return any item, which contains defective material or workmanship or otherwise does not conform, to this Order, applicable drawing, specifications or samples. In the event the products do not comply with the applicable specifications, BUYER reserves the right to charge SELLER for any costs incurred to correct the non-conformity. SELLER shall have a reasonable opportunity to correct any such noncompliance; however BUYER reserves the right to make the final decision. SELLER must notify BUYER of any non-conforming product prior to shipment to BUYER. SELLER must obtain written approval from BUYER prior to shipping any non-conforming product to BUYER. SELLER must notify BUYER of any non-conforming product if determined during or after shipment.

(a) By written Change Order BUYER may at any time unilaterally: (i) suspend the work in whole or in part for a stated time period; and (ii) make changes in one or more of the following elements: designs, drawings of specifications, method of shipment or packing; place or time of delivery, or quantities to be furnished. Any acceleration in the delivery rate requires SELLER’s advance consent. If any suspension or change directed by BUYER causes an increase or decrease in the cost or delivery schedule of the work to be performed, (whether supplies or services), an equitable adjustment shall be made in the Order price, delivery schedule, or both. If the price and/or schedule adjustment is not included in the Issued Change Order, no increase in price or delay in delivery will be allowed unless SELLER asserts such a claim in writing within 30 days from the date of the Change Order to be followed as soon as possible with a specification of the claim along with supporting data. Nothing contained in this section shall relieve or excuse SELLER from proceeding without delay in performing this Order as modified by a Change Order. (b) The BUYER’s engineering, technical and other personnel may, on occasion, render assistance, exchange information, or advice to SELLER’s personnel concerning the supplies or services furnished hereunder. Such assistance, exchange, or advice shall not constitute a change under this section or a waiver of the SELLER’s existing obligations. In order to be valid and binding upon BUYER any change, waiver, or amendment of this Order must be in writing and signed by an authorized representative of the BUYER’s purchasing department.

SELLER shall maintain lot traceability for all product supplied on each Order and Contract as specified by Buyer. Any correspondences, including certifications, packing slips shall reference Current PO, Work Order, Part Number, Drawing Revision, traceability number, batch number, etc

The Work to be delivered hereunder shall consist of new materials, not used, or reconditioned, remanufactured, or of such age as to impair its usefulness or safety.

SELLER agrees to deliver to BUYER the articles covered by this Order free and clear of all liens, claims, and encumbrances.

BUYER supports the U.S. Custom and Border Protection (CBP) Customs-Trade Partnership Against Terrorism (C-TPAT) program. The CTPAT program is a joint effort between CBP and the trade community to reduce the threat of terrorism by means of protecting the integrity of cargo imported into the United States. As a SELLER to BUYER, your support of CTPAT is critical to the realization of Buyer’s objectives and to the cooperative endeavor between U.S. importers and CBP. BUYER requires foreign suppliers of imported goods to scrutinize and, where necessary, develop sufficient security measures within their own supply chain. To the extent that SELLER is a foreign supplier of imported goods, it agrees to scrutinize, based on risk, appropriate security measures to be implemented and maintained throughout the supply chain, including out-sources or contracted elements of the supply chain, such as transportation, conveyance, warehouse, broker, consolidator or other elements. The SELLER agrees to work with these business partners to ensure that pertinent security measures are in place and adhered to and, where necessary, develop sufficient security measures with its own supply chain. More information about CTPAT can be found at www.cbp.gov.

This Order is subject to compliance with U.S. and other national export, import, customs and trade‐related laws and regulations and SELLER understands that it is responsible for implementing procedures to ensure its material compliance with all such guidelines. The SELLER acknowledges that it is knowledgeable about all such law agree to comply with the same as applicable. SELLER is responsible for determining the appropriate country of origin (“CO”) for the product(s) it manufactures or assembles for BUYER and for marking these products in English accordance with the requirements in accordance with U.S. Customs Regulations, 19 CFR Part 177. Further, SELLER will cooperate fully with BUYER in supplying data to facilitate BUYER’s origin reporting requirements and qualification for preferential origin programs such as NAFTA, IFTA, FMF, EXIM and the like. The following trade data elements must be able to be printed out or be capable of being transferred electronically on each commercial invoice prior to shipment of Product: Country of Origin; Import Country HTS Classification; ECCN; License; Destination Control Statement; BUYER Part Number; Appropriate INCOTERM. Further, SELLER must maintain, and reproduce upon demand, all documentation relating to the international transport of BUYER goods for a period of not less than one year from the date of each shipment. All such record keeping system will comport with the legal requirements of the U.S. and other nations including, but not limited to, requirements set out in Parts 762 and 772, U.S. Department of Commerce, Export Administration Regulations and the U.S. Customs Record‐Keeping Regulations, 19 C.F.R. 163. SELLER will provide written notice to BUYER in the event of an action by the U.S. or other national government customs/export authorities that relates specifically to goods or services provided to BUYER by SELLER’s sites.

(a) For Cause: BUYER reserves the right to terminate this Order, or any part hereof, and to cancel all or any part of the undelivered portion of this order if SELLER: (i) fails to deliver the supplies or perform the services by the time specified in this Order (ii) fails to deliver supplies or perform services that meet the required specifications, or otherwise breaches any of the other terms of this Order or any part thereof. (iii) SELLER becomes insolvent, a filling of a voluntary petition to have SELLER declared bankrupt provided it is not vacated within thirty days from the date of such filling, or the execution by SELLER of any assignment for the benefit of creditors. In the event of an order cancellation, BUYER shall have no obligation to SELLER with respect to the cancelled portion of this Order and BUYER’s liability shall be limited to payment for the delivered portion of this Order at the rate specified on the face hereof (reflecting quantity prices as though this Order had gone to full completion). If, as result of default in performance by the SELLER, this Order is terminated in whole or in part and it is necessary to procure any of the specified supplies of services elsewhere, then SELLER will be liable for any re‐procurement charges which exceed the amount which would have been due to the SELLER had SELLER satisfactorily completed this Order. These remedies shall be cumulative and additional to any other remedies available to BUYER in law or equity. (b) For Convenience: BUYER may terminate work under this Order in whole or in part at any time by giving notice to SELLER in writing. SELLER shall be entitled to: (i) reimbursement for its actual costs incurred up to and including the data to termination, such cost to be determined in accordance with current industry practices, and (ii) a reasonable profit on the work done up to notice of termination at a rate not exceeding the rate used in establishing the original purchase price, provided however, if it appears SELLER would have sustained a loss on the order, no profit shall be allowed and reimbursement of cost shall be adjusted to reflect the indicated rate of loss. In no event shall BUYER’s obligations, as a consequence of the termination, exceed the Order price of the items terminated. (c) After termination for cause or convenience, at its election, BUYER shall have the right to direct the disposition of any or all work‐in‐process, parts and materials included. The SELLER will comply with and be responsible for reasonable expenses incurred in effecting BUYER’s directions. Prior to settlement of SELLER’s termination claim, SELLER shall make available for inspection: (i) all inventory included in the claim and (ii) all directly pertinent books records and documents relating to claimed cost, (d) If, after this Order has been totally or partially terminated for cause, it is determined that SELLER’s failure is excused pursuant to Section 13 below then such termination notice shall be deemed to have been issued “for convenience” and the right of the parties shall be governed by paragraph (b) above.

(a) SELLER agrees to save BUYER, its customers and agents harmless from any loss, damage, or liability incurred on account of any alleged infringement of any patent with respect to all supplies furnished under this Order, provided that such supplies are not manufactured pursuant to BUYER’s design. SELLER also agrees that it will, at its own expense, defend any action, suit, or claim in which infringement is alleged, provided SELLER is duly notified as to such suit. In case a delivered item or any part thereof, is held to constitute an infringement and the use of the item, or any part thereof, is enjoined, SELLER shall, at its own expense, either procure for BUYER the right to continue using the same, or replace same with non‐infringing items; in the event of the impossibility of the foregoing options SELLER shall grant BUYER a credit for the purchase price of such item If any patent infringement or claim thereof is based upon the use of the item in combination with other materials, where such infringement or claim thereof would not have occurred from the normal use for which the item was designed. (b) Where performance under Order includes an experimental, developmental, or research effort and such work is paid for in whole or in part by BUYER, SELLER agrees to disclose to BUYER all confidential process, know‐how, or trade secrets resulting therefrom and, on request, to assign to BUYER each invention and property right resulting therefrom.

SELLER warrants that all supplies furnished under this order will: (i)be free from defects in materials and workmanship, (ii)conform to the specifications, drawings, samples or other descriptions (iii)be free from defects in design except to the extent that such supplies are manufactured to BUYER’s design (iv)be suitable for the intended purpose, if the purpose is made known to SELLER and BUYER relies on SELLER’s judgment and selection, and (v)be free from defects in title. SELLER further expressly warrants that all services performed under this Order will be free from defects in workmanship. These warranties shall remain in effect, as to each item furnished, serviced and/or repaired hereunder for a period of time consistent with the warranty life normally offered by the SELLER. All warranties shall be construed as conditions as well and the warranties and shall not be deemed to be exclusive. The benefits of this warranty shall accrue to BUYER’s customers and assigns to the same extent they shall accrue to BUYER. Articles ordered to Government specifications shall comply with such specifications as are current at the date of this Order unless otherwise particularly specified by the BUYER. Under circumstances of Breach of Warranty, BUYER shall be entitled to avail itself cumulatively of all remedies provided in law or in equity. SELLER shall make timely responses to BUYER’s notifications of Breach of Warranty and shall respond with the understanding (and SELLER agrees) that time will be of the essence in all instances.

(a) Expect with respect to defaults by subcontractors, SELLER shall not be liable for failures or delays that arise out of causes beyond its control and without its fault or negligence. If the failure or delay is caused by the default of subcontractor at any tier and it arises out of causes beyond the control of both SELLER and the Subcontractor, and without the fault or negligence of either, then SELLER shall not be liable to BUYER unless supplies or services to be furnished by the subcontractor are obtainable from other sources in sufficient time to permit SELLER to meet the Order requirements. In either circumstance, as a pre‐condition to being excused, SELLER shall give immediate written notice BUYER, setting forth the cause, when SELLER has reason to believe that deliveries will not meet the schedule. (b) BUYER shall be excused for failures or delays due to causes beyond its control and without its fault or negligence.

SELLER shall indemnify and hold BUYER harmless against all loss and liability on account of claims of personal injury, death and property damage resulting from any act or omission of SELLER (including its agents, employees and subcontractor(s) in the course of performing this order, including the supplies delivered or service performed hereunder. SELLER shall maintain such Public Liability, Property damage, Employer’s Liability and Compensation Insurance, which will protect SELLER and BUYER from the aforementioned risk and from claims under applicable Workmen’s Compensation statutes. Upon request SELLER shall provide BUYER with certificates of insurance and evidence of registration under any applicable Workman’s Compensation statute.

Any advertising of this Order (including the supplies or services hereunder and pictures, descriptions or samples thereof) by SELLER is prohibited except with BUYER’s written approval.

In the execution of a purchase order, the Supplier must be aware of their contribution to product conformity by meeting the specification and drawing requirements of the component(s) defined in the purchase order and associated documents. Should there be a discrepancy between the purchase order documents and any documents on file with the Supplier, it is the Supplier’s responsibility to reconcile these differences with COTSWORKS before proceeding with an order.

 

Likewise, the Supplier is responsible for ensuring that the component(s) furnished on a COTSWORKS purchase order meet all applicable safety laws, codes (local, national and international) and directives in accordance with ISO9000 and AS9100. Supplier will support product safety by ensuring robust management of special requirements, critical items and key characteristics. If there are concerns with respect to product safety, supplier will communicate them to COTSWORKS. If there is a concern at the Supplier's premises with respect to safety during the manufacture of the product, Supplier will notify its own employees of the concern and whenever possible, mitigate the concern.

 

COTSWORKS conducts business to the highest ethical standards and practices. Similarly, COTSWORKS requires that Suppliers conduct business to these same high ethical standards and practices. Supplier must be committed to the highest standards of ethics and business conduct. Supplier must comply with the law, honor commitments, act in good faith, and be accountable. Supplier must strive to maintain full compliance with all laws and regulations applicable to the operation of the business and customer relationships. Supplier must not offer, promise, authorize, or provide, directly or indirectly, anything of value (including business gifts or courtesies) with the intent or effect of inducing anyone to engage in unfair business practices. Supplier will avoid involvement in activities that may be perceived as a conflict-of-interest. Supplier will respect the legitimate proprietary rights and intellectual property rights of customers and Suppliers and take proper care to protect sensitive information, including confidential, proprietary and personal information.

With the exception of Orders issued by COTSWORKS, this Order shall be construed in accordance with and governed by the laws of the State of Ohio, USA, and constitutes the entire agreement between BUYER and SELLER respect to goods and/or services covered by this Order.

The order of precedence for this contract shall be (in order): (i)COTSWORKS, LLC PURCHASE ORDER TERMS AND CONDITIONS and applicable Quality Clauses (ii)Purchase Order (iii)BUYER drawings or specifications. (iv)SELLER drawings or Specifications.

as agreed upon in Seller’s specification, SELLER shall not make any changes in the manufacture of items to be delivered pursuant to Orders issued hereunder in manufacturing processes, materials, design, form, fit or function or in any other way without prior written notification to BUYER and BUYER reserves the right to terminate this Order if any changes by SELLER do not meet BUYER’s approval.

The SELLER shall flow‐down the provisions of this Order and its appendices to its suppliers through the SELLER’s purchase orders to the extent necessary.

SELLER shall maintain Quality records associated with this Order for a minimum period of seven (7) years unless the Order indicates a longer retention period.

During performance of this order, SELLER’s quality control or inspection system and manufacturing processes are subject to review, verification and analysis by BUYER or applicable regulatory authorities.

All such suppliers should maintain a calibration system in accordance with the requirements of ISO 17025, ISO 10012; ANSI Z-540-1, ANSI Z540-3, as appropriate. All Inspection Measuring & Test Equipment (M&TE) used by the Supplier during in-process and final inspection to make a compliance evaluation shall be calibrated against measurement Standards traceable to NIST or an equivalent National Measurement Institute (NMI).

Where drawings and/or POs indicate Export Controls apply, any related information (aka Technical Data) shall be handled as per controls enumerated through the Export Administration Regulations (EAR), implemented by the Department of Commerce for items that have both a commercial and potential military use, and the International Traffic in Arms Regulations (ITAR), implemented by the Department of State. Failure to secure such data may be subject to both criminal and administrative penalties. Fines for export violations, including antiboycott violations, can reach up to $1,000,000 per violation in criminal cases, and $250,000 per violation in most administrative cases.

Any purchase made referencing Defense Priorities Allocation System (DPAS) DO or DX Ratings shall be handled per 15 CFR Part 700 in accordance with the Department of Defense (DoD) property management system to assure these orders are scheduled and processed ahead of any commercial jobs so as to assure their timely delivery.

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