Purchase Order Terms and Conditions
Terms and Conditions
Acceptance – issuance of this Purchase Order is acceptance by Electronics for Imaging, Inc. or any of its subsidiaries and affiliates (“EFI”) of the Seller’s offer.
By making delivery under this Purchase Order, Seller acknowledges each and every Term and Condition set forth herein as binding on Seller and any additional Term and Condition shall not be binding on EFI unless specifically accepted by EFI in a separately signed written acceptance.
Price – Seller agrees that: (a) the per unit price or total price set forth on the face of this Purchase Order is firm, not subject to increase and includes all applicable taxes on items covered herein; (b) if the price is omitted from this Purchase Order, the price to EFI shall not be higher than Seller’s lowest prevailing price for items of like quality and quantity in effect on the date of this Purchase Order, and (c) EFI shall receive full benefit of any reduction in the price of any items covered by this Purchase Order if that reduction is made subsequent to Seller’s receipt of the Purchase Order.
Terms – Unless otherwise agreed upon in writing or specified on the face of the Purchase Order, terms will be 60 days from the receipt of goods.
Extra Charges – No extra charges of any kind, including charges for packing or transportation will be paid unless specified in writing by EFI in advance. Seller is required to use applicable EFI packaging specifications, as provided for Shipment/Deliveries.
Delivery – Time is of the essence in this Purchase Order. If delivery is not completed within the time specified herein, EFI reserves the right, without liability, in addition to its other rights and remedies, (a) to terminate this Purchase Order by notice effective when received by Seller as to stated items not yet shipped and (b) to purchase substitute items, elsewhere and Seller shall reimburse EFI for all losses and additional costs and expenses incurred. Items shipped to EFI in advance of the schedule, as herein set forth, may in EFI’s sole discretion, be returned to the Seller at Seller’s expense. Any provision herein for delivery of items by installment shall not be construed as rendering the obligation of the Seller severable.
Title and risk of loss for all items purchased by EFI under this Purchase Order shall transfer to EFI upon EFI’s receipt of the items at: (i) EFI’s designated manufacturing facility for domestic shipments (including intra-EU shipments), and (ii) at the port of destination for international shipments. Unless otherwise designated in this Purchase Order, EFI shall act as agent for Supplier and procure insurance against risk of loss and select a transportation company and procure and pay for the shipment for any items purchased under this Purchase Order.
A. By acceptance of this Purchase Order, Seller warrants that EFI is relying on Seller’s expertise to design, manufacture, install and, where contracted for, to maintain the equipment covered hereunder in a safe manner, and the items to be furnished hereunder will be; (1) in full compliance with EFI’s specifications, blueprints, drawings and data or Seller’s sample, if any: (2) fit for the use intended by EFI; and (3) free from any actual or claimed patent, copyright or trademark infringement, Seller warrants title to the items.
B. Seller agrees that the warranties herein contained shall be in addition to any warranties: (1) expressly provided under the Uniform Commercial Code as adopted by the State of California; (2) implied under the Uniform Commercial Code as adopted by the State of California; (3) expressly made by the Seller; and (4) shall survive for a reasonable period following acceptance and payment by EFI.
Invoicing – Each invoice issued as a result of the Purchase Order shall conform to the following:
- shall be rendered separately for each delivery;
- shall not cover more than one Purchase Order;
- shall contain the Purchase Order number under which it is issued;
- shall be rendered to the proper Accounts Payable area as set forth on this Purchase Order.
Each invoice payment term will be calculated from the date the invoice is received by the proper Accounts Payable area.
Inspection – Each and every item purchased hereunder is subject to EFI’s inspection and approval at any place that EFI may reasonably designate. EFI expressly reserves the right, without liability hereunder or otherwise to reject and refuse acceptance of items which do not conform in all aspects to: (a) any instructions contained herein; (b) EFI’s specifications, drawings, blueprints and data: and (c) Seller’s warranties and each of them, whether such warranties be expressed or implied. With respect to any items which do not so conform, EFI may, in EFI’s sole discretion hold such items for Seller’s instructions at Seller’s risk upon notification to Seller or return such items to Seller at Seller’s expense. Payment for any item shall not be deemed an acceptance thereof.
Changes – EFI reserves the right at any time to change any one or more of the following: (a) specifications, drawings, blueprints and data incorporated in this Purchase Order where the items to be purchased are to be specifically manufactured for the EFI; (b) method of packaging, packing or shipment; and (c) place and/or time of delivery. If any such change causes an increase or decrease in the cost of or the time required for the performance there under, an equitable adjustment shall be made in the price or delivery schedule, or both. Any claim for adjustment by the Seller shall be deemed waived unless asserted in writing within thirty (30) days from the receipt by Seller of the change. Nothing contained in this clause shall relieve Seller from proceeding without delay in the performance of this Purchase Order as changed.
Indemnification – Seller shall indemnify, defend and hold EFI harmless from any claim demand, libel cause of action or damage for which EFI might become liable arising from or in connection with Seller’s performance hereunder.
In addition to any indemnification as provided hereunder if any virtue of a patent infringement suit, an injunction shall issue against Seller or EFI which prohibits or limits the use of any such items purchased hereunder, Seller at EFI’s request will supply EFI with non-infringing replacement items of a similar kind and quality at no additional cost or shall obtain a license for EFI to use infringing items at no additional cost to EFI.
Patents – Seller agrees to indemnify and hold EFI harmless, at Seller’s own expense, against all suits, actions or proceedings in which EFI, any of EFI’s distributees or dealer(s), or the users, lessees or customers of any of EFI’s products, are made defendants for actual or alleged infringement of any copyright, trademark or U.S. or foreign patent resulting from the use or sale of the items purchased hereunder.
EFI’s Property – Unless otherwise agreed in writing, all tooling, equipment or material of every description furnished to Seller by EFI or specifically paid for by EFI and any replacement thereof, or any materials affixed thereto, shall remain the property of EFI. Such property, and whenever practical , such individual items thereof, shall be plainly marked or otherwise adequately identified as Property of Electronics For Imaging, and shall be safely stored separately and apart from Seller’s property.
Seller shall not substitute any property for EFI’s property and shall not use such property except in filling EFI’s orders. Such property, while in Seller’s custody or control, shall be held at Seller’s sole risk, shall be kept insured by Seller at Seller’s expense in an amount equal to the replacement cost with loss payable to EFI. Such property shall be prepared for shipment and delivered in good condition, normal wear and tear excepted, to EFI’s Plant or at EFI’s option, F.O.B Seller’s Plant immediately upon request by EFI. EFI has absolute right to immediate possession of EFI’s property upon demand.
Compliance with the Law – Upon acceptance of this Purchase Order, Seller warrants and represents that is has and will continue during the performance hereunder to comply with all relevant provisions of Federal, State and local laws and regulations. Without limiting the generality of the foregoing, Seller in accepting this Purchase Order represents that the goods to be furnished or the services to be rendered hereunder were or will be produced or performed in compliance with all applicable requirements of Sections 6, 7 and 12 of the Fair Labor Standards Act, as amended, and all valid and applicable regulations and orders of the Administrator of the Wage and Hour Division issued under Section 14 thereof. Seller also warrants and represents that every chemical substance shall be on the list of chemical substances, or have been submitted for inclusion on such list, as compiled by the Administrator, Environmental Protection Agency, pursuant to the Toxic Substances Control Act. Seller further warrants and represents that the prices charged by EFI are also available to any other customer of Seller who may desire to contract with seller for the same of similar quantity and quality of goods.
Compliance with Code of Business Conduct and Ethics – Upon acceptance of this Purchase Order, Seller warrants and represents that it has and will continue during the performance hereunder to comply with EFI’s Code of Business Conduct and Ethics, available at Code of Business Conduct and Ethics.
Confidential Relationship – Seller shall treat as confidential all specifications, drawings, blueprints and data supplied by EFI. Seller shall not disclose any information relating to this Purchase Order to any third person not entitled to receive it.
Nonpublicity – Seller shall not, without the prior written consent of EFI: (a) make any news release, public announcement, denial or confirmation of this Purchase Order or its subject matter, nor (b) in any manner advertise or publish the fact that EFI has placed this Order.
Termination – Not later than ninety days after termination, Seller shall submit a termination claim, (herein, the ‘Claim’) to EFI, in the form prescribed by EFI, setting forth the proposed amounts due Seller as a consequence of the termination. If Seller fails to submit the claim within such time, EFI may independently determine the amount due Seller, if any, and such a determination shall be final. EFI’s liability for material, completed work, work in progress and terminated work shall be limited to those materials, completed work, work in progress and terminated work encumbered by Seller to satisfy Purchase Order delivery dates within 90 (ninety) days of the effective date of the termination. Seller’s Claim shall include costs actually incurred by Seller prior to notification of termination and in anticipation of performing the ordered work to the extent such costs relate to preparation of finished goods due for delivery within 90 (ninety) days of the termination notice. Such claim shall be reduced by: (1) all payments, if any, made to Seller on account of the Purchase Order prior to the effective date of termination; (2) any claim which EFI may have against Seller in connection with this order; and (3) the agreed upon price of proceeds of sale of any material applicable to the terminated work or sum equal to the cost to Seller of all materials retained by Seller.
The parties recognize that, in some instances, Seller may purchase raw materials or components and perform work thereon, when no binding purchase order has been issued by EFI. Therefore, unless the parties otherwise agree in writing, EFI shall in no event, or under any circumstances whatever, be liable for any work in progress, raw materials, components or any other expenses or damages of any kind or nature beyond those necessary to satisfy EFI’s purchase orders and/or releases previously issued pursuant hereto.
Equal Employment Opportunity – Seller agrees to comply with all provisions of Executive Order 11246 of September 24, 1965, and all rules, regulations and relevant orders of the Secretary of Labor related to equality of employment opportunity which Executive Order, all regulations and orders are incorporated herein by this reference. Seller further agrees, upon request by EFI, to promptly comply with all requests by EFI to execute all certifications required under Executive Order 11246.
(a) if this Order is given pursuant to an existing Contract it is also subject to the terms of such Contract. In the event of any conflict with the provisions hereof, the Contract terms shall control.
(b) Seller shall not assign this Order nor delegate its performance hereunder without the written consent of EFI.
(c) Waiver by either party of any default by the other hereunder shall not be deemed a waiver by such party of any other default.
(d) Seller shall not change this Order nor ship nonconforming items without first obtaining the written consent of EFI. Any material received that is not exactly to specification will be rejected as a breach of warranty of Purchase Order Terms and Conditions, unless a valid deviation from EFI to the specification exists on the file prior to material receipt.
(e) If, at EFI’s request, any research and development is performed with respect to any of the items sold hereunder or in anticipation hereof, which results in any patents, trademarks or copyrights, title thereto shall vest in EFI.
(f) EFI may cancel this Order without any obligation whatsoever except for shipments which have already been accepted by EFI if Seller fails to honor any of the above paragraphs.
(g) This Agreement shall be governed by and construed under the laws of the State of California, without reference to conflicts of laws principles. With respect to any disputes arising out of this Agreement, each party consents to the personal and exclusive jurisdiction and venue of the state courts in San Mateo County, California or the federal court for the Northern District of California.
(h) Each provision of the Agreement is considered to be on its own. If any provision is found to be unlawful or invalid by a Court of ultimate jurisdiction, then that provision will be considered null and void. All remaining provisions of the Agreement will survive in full force and effect.
(i) The Purchase Order is a full expression of all terms of the Agreement and is a complete and exclusive statement of those terms. Any and all representations, promises, warranties or statements by EFI’s agents that differ in any way from the terms of this written Agreement shall be given no force or effect.
(j) These Terms and Conditions have been drafted in the English language and any translation is furnished solely for the Seller’s convenience. The original English text will be binding and shall control and prevail in case of any variance or conflict between the English version and any translation.