These Purchase Terms and Conditions (“T&C’s”) form a part of each and every order or other contract for Goods or Services (“Agreement”), executed by and between providers of electronic components (“Supplier”) and CHIP 1 EXCHANGE USA, INC. (“Company”). BY PROCEEDING WITH A TRANSACTION FOR THE PROVISION OF GOODS TO, AND/OR SERVICES FROM, THE COMPANY, SUPPLIER EXPRESSLY AGREES TO THESE T&C’s. NO INCONSISTENT OR ADDITIONAL TERMS OR CONDITIONS OF ANY PURCHASE ORDER, ACCEPTANCE, SHIPPING INSTRUCTIONS OR OTHER DOCUMENT SUBMITTED BY SUPPLIER SHALL APPLY, AND SHALL BE NULL AND UNENFORCEABLE UNDER THESE T&C’S AND THE AGREEMENT.
1. Supplier Obligations
1.1) Power and Authority. Supplier has all requisite power and authority to execute and perform its obligations under its Agreement with the Company, which has been duly executed and delivered by Supplier and constitutes the valid and binding obligation of Supplier, enforceable against Supplier in accordance with its terms. If Supplier is an entity, Supplier shall be duly organized, validly existing and in good standing under the laws of its state of formation, and authorized to do business in the state(s) where Supplier conducts business.
1.2) Lawful Possession. Supplier represents, warrants and covenants that Supplier is lawfully possessed of the Goods and has the right and authority to tender such Goods to Company for purchase and/or for the provision of Services related thereto by Company. Supplier shall cause all Goods to be tendered to Company (or Company’s carrier) properly marked and packaged for storage, handling and transportation. Supplier shall furnish at or prior to such tender to Company, in writing, a list showing the quantity, part description and/or article number (if applicable) of the Goods to be kept and accounted for separately, and any specific storage, handling or other Services desired therefor.
1.3) No Counterfeit, Inaccurately Marked or Misrepresented Goods. To the best of Seller’s knowledge, all Goods provided by Supplier hereunder, including any that are provided by Supplier’s subcontractors on behalf of Supplier, are new, original and genuine, and in full compliance with all requirements, specifications, certifications and any supporting data with respect to the Goods provided by Supplier to Company. Supplier shall have in place a process for the prevention of counterfeit, inaccurately marked, or misrepresented Goods. Company shall have no obligation to provide any Services for, nor to purchase, any Goods which are counterfeit, inaccurately marked or misrepresented. All Goods must be tendered to Company in factory-sealed packaging, and in new and unused condition.
1.3.1) Supplier agrees that Goods which are suspect, fraudulent, counterfeit and/or otherwise non-conforming have no value and any contract documents establishing a transaction involving Goods which are suspect, fraudulent, counterfeit and/or otherwise non-conforming may be declared “null and void.”
1.3.2) Supplier and Company hereby agrees that if Company or a third party testing laboratory chosen by Company determines that the Goods supplied are suspect, fraudulent, counterfeit and/or otherwise non-conforming, then Supplier may either agree with Company’s findings and the transaction(s) will be voided, or elect to verify Company’s findings within thirty (30) days of notification thereof by a third party testing laboratory reasonably approved by both Company and Supplier (the “Lab”) .
a) If Supplier accepts Company’s findings and chooses to void the transaction(s), Supplier must issue an immediate refund of all monies paid by Company with respect to such transaction(s), and Supplier shall promptly instruct the Company as to whether or not the Goods at issue will be returned to Supplier or otherwise properly disposed, in each instance at Supplier’s cost and subject to any applicable law, rule, order or other regulation of appropriate authority(ies) having jurisdiction.
b) If Supplier elects to submit the Goods at issue for testing with the Lab, and the Lab verifies the findings that the Goods at issue are either are suspect, fraudulent, counterfeit and/or otherwise non-conforming, then Supplier must issue an immediate refund of all monies paid by Company with respect to such transaction(s). Supplier agrees that in all instances and regardless whether or not Supplier refunds all monies paid by Company with respect to such transaction(s), Company shall have the right with respect to such Goods at issue, to act in accordance with applicable law, rule, order or other regulation of appropriate authority(ies) having jurisdiction, including without limitation: to remain in possession of the Goods at issue, to turn over the goods to the appropriate authority(ies) having jurisdiction, and/or prevent the further sale or offering for sale of the Goods at issue in any of Company’s channels of distribution. Notwithstanding the foregoing, Supplier shall not be prohibited from pursuing its supplier of the Goods at issue, either in civil or criminal proceedings.
1.3.3) In the event of dispute between Company and Supplier related to any suspect, fraudulent, counterfeit and/or otherwise non-conforming, the party with the burden of proof whether in a court of law or in an arbitration, shall be required to establish such fact in accordance with the applicable evidentiary standard of proof.
1.3.4) Company, its customer as well as any pertinent governmental and/or regulatory authority reserves the right of access to facilities and any applicable documentation throughout the entire supply chain with respect to any Goods to research and identify any and all areas that do not meet Company’s approval and these T&C’s.
1.4) Disclosure of Health, Safety and/or Environmental Hazards. Supplier represents, warrants and covenants to Company that there are no known health, safety and/or environmental hazards associated with the storage, handling and transportation of the Goods that have not been disclosed in writing to Company prior to their tender to the Company hereunder. Without limiting the foregoing, Supplier shall provide Company with information concerning the Goods which is accurate, complete and sufficient to allow Company to comply with all applicable laws and regulations concerning the Company’s purchase of the Goods and/or Services provided therefor.
1.5) Indemnification. Supplier shall defend, indemnify and hold Company and Company’s affiliates, and their respective directors, officers, members, employees, representatives, advisors and agents harmless from and against any and all obligations, losses, demands, judgments, actions, suits, causes of action, claims, proceedings, investigations, citations, matters, damages, penalties, sanctions, costs, expenses, and disbursements, including without limitation, reasonable attorneys’ and consultants’ fees and expenses, whether or not subject to litigation, of any kind or character imposed upon, arising out of, in connection with, incurred or in any way attributable or relating to: (a) any breach, non-performance, or default by Supplier of any representation, warranty, covenant, or obligation of Supplier under these T&C’s, or contained in any other Agreement, certificate, or document entered into by Supplier in connection with these T&C’s, and/or (b) the failure of Supplier to comply with any applicable law.
2. Time is of the Essence.
All orders for Goods and/or Services are placed with the understanding that time is of the essence with respect to Supplier’s performance. In the event Supplier is unable to supply the complete order by the date specified, Supplier must notify Company within ten (10) days following the date of the affected order. Supplier’s failure to provide said notice to Company within the ten (10)-day period will cause Supplier to be subject to any and all damages suffered by Company arising from Company’s failure to receive the ordered parts in a timely fashion. Without limiting the generality of the foregoing or anything under these T&C’s or in any Agreement to the contrary, Company may cancel any shipments of Goods that are short, late or otherwise non-conforming from Supplier, without responsibility therefor.
3. Disclaimer.
TO THE FULLEST EXTENT PERMITTED BY LAW, AND UNLESS OTHERWISE SPECIFIED IN WRITING, COMPANY EXPRESSLY DISCLAIMS, AND SUPPLIER HEREBY EXPRESSLY WAIVES, ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE USEFUL OR RESULT IN ANY SPECIFIC OUTCOME OR ADDITIONAL BUSINESS FOR SUPPLIER.
4. Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL COMPANY BE LIABLE FOR ANY LOSS OR PROFIT OR REVENUE, OR INCIDENTAL, PUNITIVE, EXEMPLARY, MULTIPLE, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF NOTICE WAS GIVEN OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES WERE REASONABLY FORESEEABLE. TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY’S LIABILITY IN ALL EVENTS IS LIMITED TO THE PURCHASE PRICE PAID FOR THE GOODS OR SERVICES THAT GIVES RISE TO THE LIABILITY.
5.Confidential Information.
5.1) Definition of Confidential Information. “Confidential Information” will mean any and all information or know-how disclosed by Company (“Disclosing Party”) to Supplier (“Receiving Party”) in connection with its Agreement, which due its nature or the circumstances of its disclosure Receiving Party knew or reasonably should have known to be confidential to Disclosing Party, regardless whether such information is designated as “confidential” at the time of disclosure, including without limitation: (a) information, whether past, present or future, regarding any of Disclosing Party’s customers and their representatives, and/or the existence, contents and/or party(ies) to any contract to which Disclosing Party is party or is bound; (b) information with respect to Disclosing Party’s business plans, methods of doing business, purchasing and cost information, operations, and internal personnel and financial information; and (c) marketing and development plans, price and cost data, price and fee amounts, pricing and billing policies, quoting procedures, implementation processes, concepts, plans, procedures, techniques and strategies of Disclosing Party.
5.2) Treatment of Confidential Information. The parties hereby acknowledge and agree that all Confidential Information is and will, as between the parties, at all times remain the exclusive property of the Disclosing Party. In furtherance of these T&C’s and in order to assure adequate protection against the wrongful use of disclosure of Confidential Information, Receiving Party agrees that it will: (a) hold all Confidential Information in strict confidence and safeguard the Confidential Information not less than the standard of care Receiving Party uses to protect its own confidential information, but in no event less than a reasonable standard of care; (b) not disclose Confidential Information to any of its own employees, agents, contractors or representatives, except those with a “need-to-know” such Confidential Information in order to perform his/her respective duties and are bound by confidentiality obligations at least as restrictive as the obligations hereunder; and (c) not use any of the Confidential Information for any purpose other than in connection with the performance of its obligations its Agreement, and/or in connection with the defense or prosecution of any claim relating to the Goods and/or Services provided thereunder.
5.3) Right to Injunctive Relief. Receiving Party recognizes that any breach or threatened breach of this Section 5 may cause irreparable injury to Disclosing Party. Accordingly, in addition to any other legal or equitable remedies that may be available to Disclosing Party, Receiving Party agrees that Disclosing Party may seek and obtain immediate injunctive relief in the form of a temporary restraining order without being required to post a bond or prove monetary damages would be inadequate, against Receiving Party to enforce this Section 5.
5.4) Exclusions. The restrictions on the use and disclosure of Confidential Information will not apply to information which Receiving Party can demonstrate: (a) is required to be disclosed in response to a valid order, law or regulation of a court of competent jurisdiction or other governmental body, but only to the extent of and for the purposes of such order; provided that Receiving Party (to the extent legally permissible) will first promptly notify Disclosing Party in writing of the order and allow Disclosing Party to avoid, protect and/or minimize the extent of such disclosure, at Disclosing Party’s cost; (b) is independently developed without access to or use of the Confidential Information; (c) is or has become generally available to the public without breach of these T&C’s or any other confidentiality restrictions by Receiving Party; (d) at the time of disclosure to Receiving Party, was known to Receiving Party free of restriction; or (e) is approved for release by Disclosing Party’s written authorization, but only to the extent of and subject to such conditions as may be imposed in Disclosing Party’s written authorization.
6. Quality.
6.1) Supplier Quality Requirements. Supplier shall implement a quality management system; use customer-designated or approved external providers, including process sources (e.g., special processes); immediately notify the Company of nonconforming processes, products, or services and obtain approval for disposition of nonconforming Goods; prevent the use of suspected unapproved, unapproved, and counterfeit parts; immediately notify the Company of changes to processes, products, or services, including changes of external providers or location of manufacture; flow down to external providers applicable requirements including customer requirements; provide a certificate of conformity, test reports, or authorized release certificate, as applicable; and retain documented information, including retention periods and disposition requirements for a period of ten (10) years, or if a longer period is required by applicable law such longer period.
6.2) In accepting the Agreement and these T&Cs, Supplier agrees it shall ensure that Supplier and its affiliates, and their respective directors, officers, members, employees, representatives, advisors, contracted parties and agents, are aware of their respective contribution to process, product or service conformity, including their respective contribution to product safety and the importance of ethical behavior.
7. Records.
Company requires Supplier to retain documented information on all transactions for a period of ten (10) years, or if a longer period is required by applicable law such longer period, following the date of Goods shipped to or Services ordered from Company. After the required retention period expires, Supplier shall dispose of the documentation in a highly secure manner.
8. Arbitration.
The parties will attempt to promptly resolve any dispute or controversy arising out of or relating to the formation, performance or termination of these T&C’s and/or its Agreement; provided, however, if the parties are unable to reach a settlement amicably, such dispute will be submitted to binding arbitration before a single arbitrator to be held in JAMS’ offices located in Dallas, Texas, in accordance with the rules then in effect of JAMS. Any negotiations pursuant to this paragraph are confidential and will be treated as compromise and settlement negotiations for all purposes. The arbitrator may grant injunctions or other relief in such dispute or controversy. It is expressly agreed that the arbitrator, as part of its award, can award attorneys’ fees to the prevailing party. The decision of the arbitrator will be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator's decision in any court of competent jurisdiction. The Company and Supplier shall each pay one-half (½) of the costs and expenses of such arbitration, and each shall separately pay its respective attorneys' fees and related expenses. Notwithstanding the foregoing, the Company may pursue any remedies at law or in equity in the event Supplier fails to fully perform all of the covenants and agreements under these T&C’s and/or its Agreement. In the event the Company seeks injunctive relief or specific performance, Supplier agrees that no bond or other security will be required in obtaining such equitable relief and the Supplier hereby consents to the issuance of an injunction and to the ordering of specific performance.
9. Miscellaneous.
9.1) No Waiver. No waiver of any term or condition is valid unless it is in writing and signed by a duly authorized person of the party charged with the waiver. A valid waiver is limited to the specific situation for which it was given. Except as expressly set forth otherwise, nothing herein will be deemed or construed as either party having waived, suspended, or otherwise limited any rights or remedies available at law or in equity.
9.2) No Assignment. These T&C’s and the Agreement may not be assigned or otherwise transferred in whole or in part, by either party without the prior written consent of the other party, not to be unreasonably withheld, conditioned or delayed. Any attempted assignment in violation of the foregoing will be void. Notwithstanding the foregoing, Company may assign its rights and obligations to any affiliated entity controlling, controlled by or under common control with Company.
9.3) Force Majeure. Neither party shall be liable to the other party for delays in performance which are caused by natural disasters, strikes, war, terrorism, utility outages, communication outages, or any other circumstance which could not have been reasonably foreseen and avoided by commercially reasonable action, or are beyond the reasonable control of such party, except that this provision shall not excuse the failure of Supplier to timely meet its payment obligations.
9.4) Governing Law. These T&C’s together with the Agreement and any claim, controversy or dispute arising under or related thereto, the relationship of the parties, and/or the interpretation and enforcement of the rights and duties of the parties will be governed by and construed in accordance with the laws of the State of Texas, without regard to its conflict or choice of law rules. Each party hereby irrevocably consents to the exclusive jurisdiction of the state and federal courts situated in Dallas County or Tarrant County, Texas, in connection with any action brought by either party to enforce the provisions of this Agreement, to recover damages or other relief for breach or default under this Agreement, or otherwise arising under or by reason of this Agreement; provided however, that either party may apply to any court of competent jurisdiction for injunctive or equitable relief, or to enforce debt collection claims arising hereunder. The parties expressly agree that the UN Convention on the International Sale of Goods shall not apply to this Agreement.
9.5) Attorneys’ Fees. The prevailing party in any dispute or controversy under or in connection with this Agreement shall be entitled to collect its reasonable attorneys’ fees and costs from the other party.
9.6) No Offsets. Supplier will have no right to offset or deduct any disputed claims against any past, present or future invoices from Company.
9.7) Headings. The headings contained in this Agreement are for the purposes of convenience only and are not intended to define or limit the contents herein.
9.8) Severability. Should any provision hereunder be determined to be void, invalid, unenforceable or illegal for whatever reason, only that particular offending provision or part so found, will be null and void; provided however, that the remaining provisions shall be unaffected thereby and shall continue to be valid and enforceable.
(REV 2.1, 4/2023)