Tooh Dineh Industries, Incorporated
TERMS AND CONDITIONS
1. ADDITION/CHANGES
No extra work, additions, alterations, including changes in price will be paid by TDII unless agreed to and performed pursuant to and in accordance with a written revision to the order.
2. CANCELLATIONS
TDII reserves the right to cancel this Agreement without cause at any time. An equitable adjustment in price and/or delivery schedule will be negotiated for products completed or in process at the time of the cancellation, but in no event shall TDII be required to pay more than the Seller’s actual cost of labor and supplies consumed to the point of cancellation. Seller shall receive full compensation for unique items reasonably procured by the Seller which cannot be sold, used or otherwise disposed, however, Seller’s who choose to produce in advance of TDII’s scheduled delivery dates do so at their own risk. Notwithstanding the foregoing, Seller will designate certain Products as non-cancelable, non-returnable (“NC/NR”). Orders for such products may not be terminated/cancelled or rescheduled and such Products may not be returned (except for valid warranty claims) by TDII. Before any Product is designated as NC/NR, TDII will agree to such designation in writing by execution of a separate NC/NR agreement. Unless otherwise mutually agreed in writing. Seller will not be required to hold in its inventory NC/NR Products more than thirty (30) days from the date such Products were received into Seller’s inventory. In such an event, Seller will deliver and TDII will accept all such products and make payment therefore in accordance with applicable payment terms then in effect. For the purposes of this Agreement, NC/NR means Products which are ordered on behalf of TDII and which would pose a liability to Seller if not purchased by TDII within the agreed upon time frame (i.e. orders for non-stock items, limited or single customer items – low demand, last time buy items, discontinued items, etc.)
3. CONFICTING TERMS
This Agreement contains all the terms with respect to the subject matter hereof and supersedes all prior agreements, arrangements and communications whether oral or written. While this represents the entire Agreement as to the sale of Products, the terms and conditions, as contained in the Purchase Orders placed by TDII and the acknowledgements, invoices, quotations sent by Seller, both to the extent not inconsistent herewith, shall control the underlying purchase transaction in all aspects, unless it is varied in a writing and signed by duly authorized officers of both parties.
4, CERTIFICATES OF CONFORMANCE
A Distributor/Manufacturer Certificate of Conformance shall be provided with every shipment after initial first article approval. Goods that are received discrepant for any reason shall require re-approval. All components, including material undergoing testing, screening or burn-in must have a Certificate of Conformance provided with each delivery.
5. DELIVERY
Delivery must be made within the time stated and only to the destination stated on the order. If Seller fails to deliver on time, TDII reserves the right to purchase elsewhere, and may reject goods and services not delivered or furnished on the dated specified on this order.
6. GOVERNING LAW
Seller agrees that the laws of the State of Arizona shall govern the validity, construction, interpretation and effect of this order. Any and all disputes arising out of or in connection with the order shall be litigated only Coconino County, State of Arizona, and Seller hereby expressly consents to the jurisdiction of said court.
7. HAZARDOUS MATERIALS
Seller’s furnishing supplies which contain hazardous materials must label each container listing the identity of such material. Each carton or package must also be identified on the outside with the appropriate hazard warning. Seller must furnish the necessary MSDS for each chemical, substance or product listed on this order. The Purchase Order number must appear on all MSDS material pertaining thereto.
8. INDEMNIFICATION
To the extent represented and warranted by the manufacturer of the Products, Seller represents and warrants that the Products and Services delivered or performed hereunder do not infringe any United States patent, trademark or copyright. To the extent Seller receives such indemnification from the manufacturer, Seller will defend at its own expense any suit or action brought against TDII based on a claim that the Product infringe on any such patent, trademark or copyright, and will pay all costs and damages awarded there from. If use of any Product is enjoined, Seller may, at its option and own expense, either procure for TDII the right to continue to use such Product or replace it with a substantially equivalent non-infringing good, or modify such Product so it becomes non-infringing or refund the purchase price paid for the enjoined Product. TDII will defend, at its own expense, any action brought against Seller to the extent that it is based on a claim that any TDII supplied designs, processes, or documentation constitutes a direct infringement of any duly issued United States patent or infringement of any copyright, trade secret, or other proprietary rights. TDII will pay all damages and costs awarded against Seller in such action which are attributable to such action, provided that TDII is promptly informed in writing and furnished a copy of each communication, notice, or other action relating to the alleged infringement and is given authority, information, and assistance necessary to defend or settle such claim. THE FOREGOING STATES THE SOLE AND EXCLUSIVE LIABILITY OF THE PARTIES TO THIS AGREEMENT FOR PATENT, COPYRIGHT, TRADE SECRET, OR OTHER PROPRIETARY RIGHTS INFRINGEMENT AND IS IN LIEU OF ALL CONDITIONS OR WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, IN REGARD THERETO.
9. INVOICES
Submit invoice(s) as instructed on the face hereof immediately upon delivery or completion of order. The purchase order number must be referenced on the invoice.
10. NON-DISCRIMINATION
The Seller shall not employ or contact with any firm or organization that is unfit or unskilled in the work to be performed. He shall not discriminate or allow discrimination against any employee or applicant for employment because of sex, sexual orientation, religion, age, disability, race, color, creed or national origin.
11. PRICE WARRANTY
Prices charged and/or quoted shall be equal to or less than those charged and/or quoted to our most favored customers, including the U.S. Government, for like material, quality and under substantially similar terms and conditions.
12. PROMPT PAYMENT DISCOUNT
Seller’s prompt payment discount is to be calculated from the date of Seller’s invoice, or delivery of the Product, whichever is later. Terms of payment are 2% 30 net 45.
13. PURCHASE ORDER NUMBERS
TDII purchase order numbers must appear in all packing slips, shipping documents, labels, and invoices.
14. QUANTITY AND QUALITY
The quantity term stated on this order shall be complied with strictly, as stated. The Seller warrants that all goods, materials, or work furnished are of reasonable average quality and would meet such a standard of description in the trade.
15. SELLER TO PACKAGE GOODS
Seller shall package goods in accordance with good commercial practices. Each shipping container, package, all shipping papers, and invoices shall be clearly and permanently marked with the following: 1) Seller’s name and address; 2) Buyer’s name and address; 3) purchase order number; 4) Seller’s part number, OEM name, part number and; 4) Container number and total number of containers (e.g. 1 of 4).
16. SOURCE INSPECTION
Buyer, reserves the right to perform a Source Inspection prior to shipment of goods, with prior notice, and in advance of the Seller’s scheduled shipment. These inspections may be accomplished by TDII, their customer or government agencies. Seller must maintain a Quality System that is reasonably approved by TDII. Source inspection shall be limited to visual inspection at the Seller’s Distribution warehouse since Seller is unable to demonstrate operation of the devices and will be subject to additional charges.
17. SHIPPING TERMS
Unless otherwise stated on the face of this order, Seller shall ship all goods FOB Origin, normal ground freight provided by the Seller. Invoices shall be forwarded to: TOOH DINEH INDUSTRIES, INC., HC 61 Box E, Winslow, AZ 86047, Attention: Accounting.
18. STANDARDS AND REGULATIONS – FEDERAL AND STATE
In performance of the order, Seller shall comply with all federal, state and local laws, rules, ordinances and regulations, and all materials and work or services furnished hereunder shall be produced or furnished in full and complete compliance therewith.
19. TAX INFORMATIOIN
TDII’s Federal Tax ID Number is 86-80442648.
20. WARRANTY
TDII acknowledges that Seller is the distributor and not the manufacturer of the items to be furnished hereunder. Seller agrees to pass on to TDII all warranties, indemnifications, and remedies, including but not limited to product warranties and patent indemnification, subject to the terms, conditions and limitations thereof, which are provided to Seller by the manufacturer of the component part, material or provider of the service.