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1. Terms and Conditions. (a) This Purchase Order is an offer by Foresight Sports (“Buyer”) for the purchase of the goods specified on the face of the Purchase Order (the "Goods") from the party to whom the Purchase Order is addressed (the "Supplier") in accordance with and subject to these terms and conditions (the "Terms", which, together with the terms and conditions on the face of the Purchase Order, comprise the "Order"). The Order, together with any documents incorporated herein by reference, constitutes the sole and entire agreement between the parties with respect to the Goods, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the Order. The Order expressly limits Supplier's acceptance to the terms of the Order. These Terms prevail over any terms or conditions contained in any other documentation and expressly exclude any of Supplier's general terms and conditions of sale or any other document issued by Supplier in connection with this Order. (b) These Terms apply to any repaired or replacement Goods provided by Supplier hereunder.
2. Assignment. Neither this Order nor any right or obligation hereunder shall be transferred or assigned by the Supplier without the express written approval of the Buyer.
3. Change Orders. No change, modification or extension of this Order shall be effective against Buyer unless it is made in writing in the form of a Purchase Order Change Order signed by an authorized representative of the Buyer and accepted by Supplier.
4. Compliance with Applicable Federal, State and Local Laws. Supplier shall, at its own expense, comply with and assume all obligations imposed by any one or more of any Federal, State, and Local laws and regulations that may be applicable to this Order, including but not limited to all statutes, applicable standards, required permits, licenses, and taxes. In addition, Supplier shall provide certifications of such compliance and sufficient data to support such certifications, either generally or specifically, upon request of Buyer.
5. Confidentiality and Disclosure of Information. Except to the extent required by the Open Records Act, Supplier shall not disclose information concerning work under this Order to any third party, unless such disclosure is necessary for the performance of work under this effort. Information disclosed by Buyer to Supplier marked as “Proprietary” shall be treated as such by Supplier and returned to Buyer upon request. To the extent that information disclosed by Buyer: (a) is or becomes part of the public domain, (b) is known to Supplier prior to any disclosure by Buyer, its associates, customer, or (c) is subsequently rightfully received by Supplier from a third party as non‐proprietary information, the obligation(s) contained herein will not be operative. No news releases, public announcement, denial or confirmation of any part of the subject matter of this Order or any phase of any program hereunder shall be made without prior written consent of Buyer. The confidentiality restrictions shall continue in effect until expressly revoked in writing by Buyer. Failure to comply with the provisions of this clause may be cause for termination under this Agreement.
6. Controlling Law. This Order is to be governed by the laws of the State of California.
7. Correction of Defects. If any of Supplier's original deliverables under this Order do not meet Buyer’s specification(s), by mutual agreement between Buyer and Supplier, Supplier shall provide Buyer with revised deliverable(s) which corrects the defect(s) at no additional cost to Buyer.
8. Counterfeits. (a) For purposes of this clause, “Work” consists of those parts delivered under this Order that are the lowest level of separately identifiable items (e.g., articles, components, goods, and assemblies). “Counterfeit Work” means (a) Work that is or contains items misrepresented as having been designed and/or produced under an approved system or other acceptable method; (ii) approved Work that has reached a design life limit or has been damaged beyond possible repair but is altered and misrepresented as acceptable; (iii) Work that contains or consists of items which the Supplier did not acquire by lawful means. (b) Supplier shall not deliver Counterfeit Work to Buyer under this Order. (c) Supplier shall only purchase products to be delivered or incorporated as Work to Buyer directly from the original manufacturer or through an authorized distributor chain.
9. Disputes. Any controversy, claim or litigation under this Order, if commenced by Supplier, shall be brought only in a court of competent jurisdiction located in the County of San Diego, California, and shall be governed exclusively by the laws of the State of California. Pending the resolution of any dispute under this Contract, the Supplier shall proceed as directed by the Buyer.
10. Excusable Failure or Delay. Neither Buyer nor Supplier shall be responsible for the failure or delay in delivery or acceptance of services and/or goods sold hereunder where such failure or delays are due to any act of God, or the public enemy, war, compliance with laws, governmental acts or regulations, fire, flood, quarantine, embargo, epidemic, strikes and labor interruption, accident, unusually severe weather or other causes similar to the forgoing (collectively, “Force Majeure”) beyond their reasonable control, but the party seeking to avail itself of any foregoing excuses shall promptly notify the other party of the reasons for any failure or delay in delivery or acceptance and shall exert its best efforts in avoiding further delay.
11. Export Control. (a) Supplier hereby acknowledges that some of the articles, services, components, information, data, or other material provided or exchanged pursuant to this Purchase Order may be controlled for export under U.S. export laws and regulations. Supplier agrees to comply with (as applicable) the U.S. Department of State International Traffic In Arms Regulations (Title 22, CFR Parts 120‐130), the U.S. Department of Commerce Export Administration Regulations (Title 15, CFR 730‐774), and any and all other U.S. Government trade regulation. (b) Supplier agrees to immediately notify Buyer if any deliverable under this Purchase Order is restricted by export control laws or regulations. (c) Supplier shall immediately notify Buyer if Supplier is, or becomes, listed in any Denied Parties List or if Supplier’s export privileges are otherwise denied, suspended or revoked in whole or in part by any U.S. Government entity or agency. (d) Supplier’s failure to comply with the terms of this clause may be deemed a material failure to perform under the Purchase Order and shall subject Supplier to termination. (e) Supplier shall indemnify and hold Buyer harmless from and against any claim, proceeding, action, fine, loss, cost and damages arising out of or relating to any Supplier’s noncompliance with export control regulations.
12. Fair Labor Standards. Supplier certifies that in the production of the goods and/or performance of the services covered by this invoice that the Supplier has complied with all applicable requirements of the U.S. Fair Labor Standards Act, as amended, and all regulations and orders of the United States Department of Labor issued under Sections 14 thereof.
13. Federal Contract Acquisition Requirements. The following Federal Acquisition Regulations shall be applicable to all Federal Contract procurements and are hereby incorporated by reference, in addition to any attached prime contract flow down clauses to the extent applicable: 52.212‐4 ‐ Contract Terms and Conditions—Commercial Items; 52.212‐5 ‐ Contract Terms and Conditions Required To Implement Statutes or Executive Orders ‐ Commercial Items; 52.213.4 ‐ Terms and Conditions—Simplified Acquisitions (Other Than Commercial Items) DFAR 252.244‐7000 – Subcontracts for Commercial Items. The full text of the applicable clauses may be accessed electronically at http://acquisition.gov/far/index.html. Supplier shall include in each lower‐tier subcontract the appropriate flow down clauses as required by FAR, DFARS, or any other applicable agency‐specific flow down requirement.
14. Gratuities and Kickbacks. To the extent prohibited by any state, federal or local procurement regulations, Supplier affirms that it has not, and shall not, offer or give a kickback or gratuity (in the form of entertainment, gifts, or otherwise) for the purpose of obtaining or rewarding favorable treatment as a supplier to Buyer.
15. Indemnification / Infringement. (a) To the fullest extent permitted by law Supplier shall indemnify and hold harmless Buyer and Buyer’s officers, directors, shareholders, consultants, agents and employees from and against any and all claims, damages, losses, expense, including but not limited to costs of arbitration or litigation and attorney’s fees arising out of or resulting from performance under this Order or breach or default under the Order, or by acts or omissions of Supplier, including Supplier’s employees, contractors, consultants, and anyone directly or indirectly engaged by Supplier in furnishing of goods or services under this Order. Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity which would otherwise exist under this Order or by operation of law. The defense, indemnification and hold harmless obligations of Supplier shall not be limited by any worker’s compensation acts, disability benefit acts or other employee benefits acts. Supplier shall defend and hold harmless Buyer against any claim that any item furnished under this Order, or the use or sale thereof, infringes any U.S. patent or copyright, and shall pay all costs and damages finally awarded in any such suit. If Supplier has reason to believe that any design, process or product to be furnished is an infringement of a copyright or a patent, such information shall be promptly furnished to Buyer.
16. Inspection and Acceptance. All goods and services received under this Order shall be subject to inspection and acceptance by Buyer, and Buyer shall be entitled to reimbursement, credit, refund or offset with respect to any non-conforming good or services. Rejected Goods shall be sent back to Supplier for inspection and investigation, and shall be credited back to Buyer or, if requested by Buyer, replaced with conforming Goods within thirty (30) days after request by Buyer, unless otherwise agreed or if reasonable commercial circumstances require delivery at an earlier date, in which case, Supplier shall expedite such delivery, which may include using Air or Freight Prepaid for which cost will be paid by Supplier. If Buyer requests replacement Goods and any replacement Goods are defective in material or workmanship, or if such replacements do not conform to Buyer’s specifications, Buyer may, at its option, (a) afford Supplier one or more extension(s) of time to correct the non-conformances, as agreed by the parties, or (b) terminate the Order, in which case Supplier shall provide a prompt and full refund of all amounts previously paid for such Goods, along with any actual costs and expenses incurred by Buyer in addressing the issues.
17. Insurance Requirements ‐ Onsite Services. If required, Supplier certifies submission to the Buyer of a certificate of insurance attesting to the existence of Workmen's Compensation and Employer's Liability Insurance with a minimum amount of $100,000; Comprehensive General Liability Insurance with a comprehensive form of coverage for at least $1,000,000 per occurrence; Comprehensive Automobile Liability Insurance with a minimum amount of $500,000/person, $1,000,000/accident for bodily injury, and $50,000/accident for property damage. Supplier further certifies annual submission thereafter for the life of this Order. Supplier shall notify Buyer no less than 30 (thirty) days prior to cancellation of this policy. This language shall be included on the certificate that is provided to Buyer.
18. Invoice and Payment. Supplier will invoice in accordance with the requirements of the Order. Payments terms are net 30 (thirty) days after receipt of an acceptable invoice, unless otherwise stated on the Purchase Order. Invoices will reference: (a) Supplier's unique invoice number, (b) Date of invoice; (c) Supplier’s Purchase Order Number ; (d) Period of Performance for which the invoice is submitted (if applicable). Invoices will be submitted to Buyer to the address specified in this Order.
19. Limitation of Liability. In no event shall Buyer be liable for any incidental, indirect, special, and consequential or punitive damages to Supplier, even if Buyer knew or should have known of the possibility of such damages.
20. Non‐Discrimination Compliance. Buyer does not discriminate on the basis of race, religion, color, sex, national origin, age or disability in the selection and retention of subconsultants, including procurements of materials and leases of equipment. To the extent applicable, Supplier shall abide by the requirements of 41 CFR 60‐1.4(a), 60‐ 300.5(a), and 60‐741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities and prohibit discrimination against all individuals based on their race, color, religion, sex or national origin.
21. Occupational Safety and Health Act. Incorporated in this Order by reference thereto are all laws, interim and permanent standards, rules and regulations of the U.S. Occupational Safety and Health Act and all state and federal laws and regulations relating to safety and health standards and regulations. Supplier accepts any responsibility arising from the failure of such purchased supplies, articles or services to comply with such laws, standards and regulations.
22. Packing and Shipping. Unless otherwise specified, all work is to be packed in accordance with good commercial practice. A complete packing list shall be enclosed with all shipments. Supplier shall mark containers or packages with necessary lifting, loading, and shipping information, including the Buyer's Order Number, item number (if any), dates of shipment, and, if applicable, the names and addresses of consignor and consignee. Bills of lading shall include Buyer's Order Number. Unless otherwise specified, delivery shall be FOB Destination.
23. Patents and Data. Supplier shall notify Buyer immediately upon becoming aware of any invention or technical data conceived or first actually reduced to practice during the performance of this Order subject to or that may become subject to the provisions of U.S. Patents or Copyright laws. Such notification shall include sufficient information for Buyer to determine whether or not the general provisions of this order are sufficient to protect Buyer’s interest in such invention or technical data as it relates to the Goods.
24. Precedence. Upon acceptance, these Terms shall constitute a binding agreement between the Buyer and Supplier with respect to the Order. Any inconsistencies shall be resolved in accordance with the following descending order of precedence: (1) Face of the Purchase Order, including any schedules and any special terms and conditions; (2) Buyer’s Purchase Order General Terms and Conditions; (4) any quote or general terms and conditions furnished by Supplier.
25. Price. The price for the goods or services sold hereby, including cost for labor, materials, equipment, licenses, taxes, and any other related costs, shall not be higher than that appearing on the face of the Purchase Order, unless another price has been accepted in writing by Buyer prior to delivery.
26. Records Retention. Documents received/generated shall remain on file at Supplier's facility for at least four (4) years from the conclusion of the Order to aid in answering any future questions that might develop.
27. Termination. Buyer may terminate this Order at any time and for any reason by written notice to Supplier. Any termination by Buyer shall be without prejudice to any claims for damages or other rights of Buyer against Supplier. Buyer shall have the right to audit all elements of any termination claim and Supplier shall make available to Buyer on request all books, records and documents relating thereto. (a) Termination for Buyer's Convenience. In the event termination is not for cause, then Supplier shall be entitled to receive only reasonable costs and expense incurred in performance of this purchase order to the date of termination, provided Supplier submits notice of the costs and expense incurred to Buyer within 30 (thirty) days after the date of termination. The reimbursement to Supplier will be costs of materials and direct labor expended by it in reasonable anticipation of its fulfillment of this order which are not recoverable by Supplier, provided that no allowance shall be made to Supplier for any anticipated effort or fee not already expended or earned. Any unused deposits or advanced payments will be refunded immediately, or, if applicable, will be deducted from the final payment to the Supplier. (b) Termination for Cause. In the event of termination for cause, Buyer shall have no liability whatsoever to Supplier. Buyer may, by written notice of default to the Supplier, terminate the whole or any then remaining part of this effort if Supplier fails to make delivery of the supplies or to perform the services within the time specified herein or any extension thereof; or if Supplier fails to perform any of the other provisions of this Agreement in accordance with its terms, and in either of these two circumstances does not cure such failure within a period of 10 (ten) days (or such longer period as Buyer may authorize in writing) after receipt of notice from Buyer specifying such failure; or Supplier becomes insolvent or the subject of proceedings under any law relating to bankruptcy or the relief of debtors or admits in writing its inability to pay its debts as they become due. Any unused deposits or advanced payments will be refunded immediately, or, if applicable, will be deducted from the final payment to Supplier.
28. Time and Delivery. Time shall be of the essence. Supplier shall deliver the Goods according to the schedule set forth in the Purchase Order unless other delivery times are agreed in writing. Any agreed extension of delivery date must be approved in writing by Buyer.
29. Waiver. The failure of Buyer to insist in any one or more instances upon the strict compliance or full performance by Supplier of any of the terms, covenants, or provisions of this Order, or to exercise any rights hereunder, shall not be construed as a waiver of any legal rights Buyer has with respect to such nonperformance, nor shall it be construed as Buyer's condoning further nonperformance of such terms, covenants or conditions.
30. Warranty. All services and/or goods sold and delivered by Supplier to Buyer shall be in full conformity with Buyer's specifications set forth or referred to on the face of the Purchase Order, or if none are set forth or referred to, shall be in conformity with Supplier's published specifications or proposal provided to the Buyer and will be fit and sufficient for the use intended by Buyer and will be of good quality and workmanship and free from defects. Supplier shall fully defend, indemnify and hold Buyer harmless from and against any and all claims, losses, damages and obligations of any nature arising from or relating to any defects in any Goods provided to Buyer. The foregoing warranty shall survive any acceptance of the services and/or Goods. If a non‐conformity is presented to Supplier by Buyer, Supplier will promptly replace or correct the non-conformity at the earliest a mutually agreeable schedule.