Terms and Conditions

AFX Inc.
Terms and Conditions

1.     Acceptance of Contract.

The purchase order to which these terms and conditions are attached, together with these terms and conditions  (this  "Order"), constitute the offer of AFX Inc. ("Buyer") to Supplier (as identified on this Order) to purchase the goods referenced on the purchase order (the "Goods"), and becomes a binding contract when accepted by acknowledgment or commencement of performance by Supplier. The offer to purchase the Goods by Buyer is expressly conditioned upon Supplier's acceptance of the terms and conditions of this Order. Once accepted by Supplier, this Order will represent the entire agreement between Buyer and Supplier, and it expressly supersedes all prior and contemporaneous agreements, arrangements, representations and communications, whether oral or written, regarding its subject matter. Buyer rejects any terms of any acknowledgement, quotation or acceptance of Supplier which differ or are in addition to those contained in this Order and such terms and conditions are null and void. This Order may be modified only in a writing signed by Buyer.  If any specified term or condition of this Order is or at any time becomes unenforceable or invalid, no other tern or condition will be affected thereby and the remaining terms and conditions will continue with the same effect as if such unenforceable or invalid term or condition had not been inserted herein.

2.    Prices, Payment Terms and Taxes.

a. The prices of the Goods are as stated in this Order and all prices stated in this Order are in United States dollars. The prices for the Goods are firm and include all charges for packing, hauling, storage, transportation to the point of delivery, insurance, taxes and all other costs and charges. Supplier warrants that the prices quoted in this Order are no greater than those currently charged to any other buyer for similar quantities of the Goods.

b. Taxes, if any, shall be remitted by Supplier to the appropriate taxing authority. All invoices shall comply with the requirements of each relevant taxing authority and shall contain data and registration n umbers that will enable Buyer to obtain appropriate credit for any taxes charged. Supplier agrees that its prices do not and its invoices shall not include any taxes, duties or other governmental charges with respect to which an exemption is available or as to which Buyer has furnished Supplier with an applicable exemption certificate. 

c. Buyer will  make payment on invoices rendered by Supplier Net  60 days from the date of invoice or the date of delivery of the Goods, whichever is later. If there is a dispute regarding the invoice that is not resolved within that period, payment will be due ten (10) days after the dispute is resolved  and a corrected invoice is received. Buyer shall have the right to apply any amounts owned by Supplier to Buyer under this Order or any other order or obligation to set off or reduce any amount payable by Buyer to Supplier under this Order or any other order or obligation.

3.     Delivery; Manufacturing.

a. All shipments are made FOB Buyer's origin, unless negotiated otherwise. Title and risk of loss or damage to the Goods shall pass to Buyer at the place of delivery. Time is of the essence on this Order, and the Goods shall be delivered on the date specified in this Order, or otherwise provided or approved by Buyer. Supplier may not make deliveries in installments without Buyer's prior written consent, which may be granted or withheld in Buyer's sole discretion. Delivery delay or default of any agreed installment shall relieve Buyer of its obligation to accept and pay for remaining deliveries.

b. If Supplier does not, or it appears that Supplier will not, meet the shipment and delivery dates specified in this Order, Buyer may, in addition to any other rights or remedies provided by law or this Order, require that Supplier ship the Goods via expedited routing to meet the specified schedule or to recover the time lost, and Supplier shall pay the difference in shipping costs.

c. Supplier shall be responsible for providing adequate packaging, tagging, labeling, packing, shipping and billing, and Supplier shall comply  with all related requirements reasonably requested by Buyer or established by applicable laws, regulations, carrier tariffs and classifications. Supplier shall ship the Goods in accordance with Buyer's requirements.

d. The parties' obligations shall be temporarily suspended in the event  of  external delays beyond the obligated party's reasonable control, which shall mean an event of war, act of terrorism, riot, explosion, fire, flood, earthquake, act of God, strike, lockout, labor trouble, freight embargoes, breakage of equipment, delay by carriers, accident or act of governmental authority ("Force Majeure"), and any failure to perform by that party as a result of any such interference or interruption shall not be deemed default. Performance may be suspended for the period of any such delay. The party whose performance is suspended shall provide written notice to the other party specifying the Force Majeure event and, if known, the expected duration,  as soon  as reasonably possible and in any event within five (5) days of such suspension. If any Force Majeure event is anticipated to or does delay Supplier's performance for more than thirty (30) days, Buyer may terminate any unfulfilled portion of this Order without any further liability. If Buyer is subject to a Force Majeure event and is unable to wholly or partially perform its obligations (other than payment of money for prior performance by Supplier), Buyer may terminate this Order without any further liability to Supplier.

e. Upon at least three (3) days advance notice and during regular business hours, Buyer, its representatives and any inspectors approved by Buyer may inspect any facilities at which the Goods are being produced (including any facilities of Supplier, its subcontractors and suppliers) and any and all Goods at any stage of production.

4.    Changes.

Buyer shall have the right at any time to make changes to the scope, Specifications (as defined below) or quantity of the Goods covered by this Order, and to the other terms hereof by written notice to Supplier. Supplier agrees to comply with such changes and an equitable adjustment will be made to any price, time of performance and other provisions of this Order, if appropriate. Claims for such an adjustment must be made within fifteen ( 15) calendar days from date of receipt by Supplier of notice of the change. Substitutions or changes in quantities or specifications by Supplier shall not be made without Buyer's prior written approval.

5.    Quality and Specifications;  Inspection.

a. The Goods must comply with all drawings, data, designs, technical information and other specifications provided by Buyer to Supplier (collectively, the "Specifications"). Additionally, the Goods must meet applicable industry quality and performance standards, comply with all applicable legal and regulatory requirements and be merchantable and fit for the purposes intended by Buyer. It is Supplier's obligation to ensure that appropriate testing, inspection and quality control is performed on the Goods.

b. Buyer's payment for the Goods shall not constitute acceptance thereof. Buyer shall have the right to inspect the Goods for a period of sixty (60) days after delivery and to reject any or all Goods which are in Buyer's judgment defective or nonconforming. Goods rejected and Goods supplied in excess of quantities called for by this Order may  be returned to Supplier at Supplier's expense and, in addition to Buyer's other rights, Buyer may charge Supplier all expenses of unpacking, examining, repacking and reshipping of such Goods.

6.   Warranties.

a. Products. Supplier expressly represents and warrants that (i) the Goods are merchantable, free from defects in design, material and workmanship, of the highest quality, and conform to the Specifications and to industry standards; (i i) the Goods are free of any condition that would pose a potential safety hazard and are fit and safe for the purpose intended by Buyer; (iii) the Goods are wholly new and contain new materials throughout; (iv) Supplier has good and warrantable title to the Goods, free and clear of any liens, encumbrances or other restrictions on distribution; (v) after reasonable investigation Supplier has no knowledge that the Goods infringe, misappropriate, or otherwise make unauthorized use of any intellectual property rights of any third party; (vi) the Goods are appropriately labeled and packaged; and (vii) the performance of Supplier under this Order does not violate any provision of any governing document of Supplier and has been duly authorized by all necessary action. In addition to the foregoing warranties, Supplier provides and Buyer is entitled to all warranties that arise by implication or operation of law, and Supplier shall extend all warranties it receives from its vendors to Buyer. All warranties run to Buyer, and through Buyer, to its customers. All warranties survive any inspection, acceptance, payment or resale by Buyer. The return of any Goods shall in no way relieve Supplier from liability with respect to warranties express or implied, or for fail ure to ship satisfactory Goods under this Order. The foregoing warranties shall remain in effect and apply for 36 months from acceptance of the Goods by Buyer.


b. Legal Compliance. Supplier, on behalf of itself and its supply chain, warrants that the Goods have been produced and supplied in compliance with all applicable federal, state and local laws, orders, rules and regulations, including but not limited to applicable rules and regulations of the U.S. Federal Communication Commission, the U.S. Occupational Safety and Health Administration and all applicable jurisdictions' rules and regulation concerning freedom of association, wages and working hours, safety and health, anti-discrimination, child labor and humane treatment of workers. Supplier shall have an affirmative duty to immediately correct any non-compliance and fully defend and indemnify Buyer against any liability for damages caused by any non-compliance with this provision.

7.    Liability and Indemnification.

a. UNDER NO CIRCUMSTANCES W ILL BUYER BE LIABLE TO SUPPLIER FOR ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, INDIRECT OR INCIDENTAL LOSS OR DAMAGE OF ANY KIND IN CONNECTION WITH THIS ORDER, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS OR  REVENUE, WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT, NEGLIGENCE OR STRICT LIABI LITY.

b. IN NO EVENT WILL THE AGGREGATE LIABILITY OF BUYER UNDER OR AS A RESULT OF THIS ORDER EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY BUYER FOR THE GOODS PURCHASED HEREUNDER ON WHICH LIABILITY IS ASSERTED.

c. Supplier shall defend, indemnify and hold Buyer, its successors, assigns, employees, customers, and users of  Goods harmless with respect to all claims, liability, damage, loss, and expenses, including attorney's fees, incurred relating to or caused by: (i) actual or alleged defect in the design,  manufacture, or material of the Goods; (ii) actual or alleged breach of warranty;  (iii) failure of Supplier to deliver the Goods on a timely basis; or (iv) failure of the Goods to comply with the Specification or meet legal requirements.

8.      Intellectual Property Indemnification.

Supplier agrees to defend, at its sole cost and expense, any suit against Buyer based upon a claim that any Goods furnished by Supplier to Buyer hereunder directly infringes any intellectual property of any third party, and to pay costs and damages finally awarded in any such suit. If the use or sale of a Good furnished hereunder is enjoined as a result of such suit, Supplier, at its option and at no expense to Buyer, shall obtain for Buyer the right to use and sell the Good, or shall substitute an equivalent thereof acceptable to Buyer and extend this indemnity thereto, or shall accept the return of such Good from Buyer's inventory and reimburse Buyer the purchase price therefor.

9.     Property Furnished  to Supplier by Buyer.

Unless otherwise agreed in writing, all special dies, molds, patterns, fixtures, jogs and any other property furnished to Supplier by Buyer, or specifically paid for by Buyer, for use in the production of the Goods shall be and remain the property of Buyer, shall be subject to removal upon Buyer's instruction, shall be used only in filling orders from Buyer, shall be held at Supplier's risk and shall  be kept insured by Supplier at Supplier's expense while in its custody or control in an amount equal to the replacement cost thereof, with loss payable to Buyer. Copies of policies or certificates of such insurance will be furnished to Buyer on demand.

10.   Confidential  Information.

Confidential Information means confidential or proprietary data or information disclosed by Buyer to Supplier in connection with this Order in oral or in written, graphic, machine recognizable, electronic, sample or any other visually perceptible form, including, without limitation, the Specifications, pricing data, prototypes, drawings, designs,  data, samples, testing processes and results, customer information, manufacturing procedures and requirements and the existence of this Order. Supplier will: (i) maintain the confidentiality of Buyer's Confidential Information and not disclose it to any third party; (ii) restrict disclosure of Confidential Information to only its employees, contract employees and third party contractors who have a "need to know" in order for the party to perform its obligations and exercise its rights under this Order, and who are bound to maintain the confidentiality of the Confidential Information by terms of nondisclosure no less restrictive than those contained herein; (iii) handle Confidential Information with the highest degree of care; (iv) use Confidential Information only for the purpose of performing its obligations under this Order; and (v) promptly notify Buyer upon discovery of any unauthorized use or disclosure of the Confidential Information and take all necessary steps to regain possession of the Confidential Information and prevent further unauthorized actions. Confidential Information is and at all times will remain the property of Buyer. No use of any Confidential Information is permitted except as expressly provided herein, and no grant under any proprietary rights is hereby given or intended, including any license implied or otherwise. Upon receipt of Buyer's written request, Supplier will return to Buyer all Confidential Information disclosed by Buyer, along with all copies and portions thereof. Supplier's obligation to keep confidential and restrict the use of Buyer's Confidential Information will survive five (5) years from the termination of this Order.

11.    Cancellation.  

Buyer may cancel this Order or any part thereof by giving Supplier notice of such cancellation, which notice must be received by Supplier at least five (5) or more days prior to the scheduled shipping date of such Order, otherwise Buyer will be responsible for a cancellation charge equal to Supplier's incurred and committed costs. The terms and warranties contained herein that by their sense and context are intended to survive the performance thereof by either or both parties shall so survive the completion of performances and/or cancellation of any Order.

12.    Recall.  

If a recall of the Goods or any product incorporating the Goods is necessitated by a defect, failure to conform to the Specifications, applicable laws, or any other reason within Supplier's control, Supplier shall bear all costs and expenses of such recall, including without limitation, costs of notifying customers, customer refunds, costs of returning goods, lost profits and other expenses incurred to meet obligations to third parties.

 13.   Assignment and Subcontracting.

a. Supplier may not assign any rights or delegate any of its obligations under this Order without Buyer's prior written consent in its sole discretion. Buyer may, at its option, void any attempted assignment or delegation undertaken without Buyer's prior written consent.
 
b. Supplier may not subcontract any of its rights or obligations under this Order without Buyer's prior written consent in its sole discretion. If Buyer consents to the use of a Subcontractor, Supplier will: (i) guarantee and will remain liable for the performance of all subcontracted obligations; (ii) indemnify Buyer for all damages and costs of any kind incurred by Buyer or any third party and caused by the acts and omissions of Supplier's subcontractors; and (iii) make all payments to its subcontractors. If Supplier fails to timely pay a subcontractor for work performed, Buyer will have the right, but not the obligation, to pay the subcontractor and offset any amount due to Supplier by any amount paid to the subcontractor. Supplier will defend, indemnify and hold Buyer harmless for all damages and costs of any kind, without limitation, incurred by Buyer and caused by Supplier's failure to pay a subcontractor.

14.    Insurance.

Supplier shall obtain and keep in force for three (3) years after the last delivery under this Order, general comprehensive liability insurance covering each occurrence of bodily injury and property damage in the amount of not less than (US$1 ) Million combined single limit with special endorsements providing coverage for:

1. Products and Completed Operations Liability;
2. Blanket  Broad Form Vendor's Liability; and
3. Blanket Contractual Liability.

14.     Miscellaneous.

a. Buyer and Supplier agree that this Order is the exclusive statement of the terms of the agreement between the parties with respect to the purchase of the Goods and supersedes all other communications between the parties, oral or written, relating to the subject matter hereof.

b. No  modification  hereto  shall  be effective unless agreed  upon  in writing  by both parties.
 
c. The failure of either party to insist in any one or more instances upon the performance of any of the terms, covenants or conditions in this Order or to exercise any right under this Order shall not be construed as a waiver or relinquishment of any such right.
 
d, This Order is binding upon and shall  inure to the benefit of the parties and their respective successors.
 
e. This Order shall be governed and interpreted in accordance with the laws of the State of Illinois, without reference to principles of choice and conflicts of laws. The parties submit to the exclusive jurisdiction of the federal and state courts sitting in Chicago, Illinois for resolution of any dispute hereunder.