Vendor Terms and Conditions
1. Acceptance. The below Terms and Conditions together with the terms on the cover page hereof (the “Cover Page”) become a binding agreement (collectively, this “PO”) of MDC Vacuum Products, LLC (“MDC”) and the party identified as “Supplier” on the Cover Page (“Supplier”) when (a) Supplier delivers a signed acceptance copy of this PO to MDC, or (b) Supplier ships or provides all or any portion of the goods, items, articles, materials, apparatus or equipment covered by this PO (the “Goods”) or the labor, work or services covered by this PO (the “Services”), or (c) MDC gives Supplier written approval of the price and delivery schedule of the Goods or Services proposed by Supplier (if Supplier proposes a price, delivery schedule or an item different from that stated on the Cover Page). This PO also includes any specification and/or drawings attached hereto or referred to herein. Except as provided above, it is a condition of this PO that any provision in any acceptance or acknowledgment hereof, inconsistent with or in addition to the terms of this PO, are expressly rejected and shall have no force or effect, and that Supplier, by its acceptance of this PO, agrees that any such provisions therein or any such alteration of this PO shall not constitute any part of the agreement between the parties.
2. Packing. Each package shall be numbered and labeled with MDC’s purchase order number, part number, and shall contain an itemized packing slip. In addition, The MDC PO Number must appear on all packing slips and invoices. No charges will be allowed to Supplier for packing, freight, express, or cartage unless stated herein.
3. Shipping Terms. Shipments must equal exact amounts ordered. Unless otherwise specified on the Cover Page, all Goods are delivered DDP, destination (Incoterms 2000). If the Cover Page indicates that Goods are delivered “Collect,” then the Goods are delivered DDP, destination (Incoterms 2000), except that Supplier is not obligated to pay the shipping charges but instead shall instruct the shipper to invoice MDC directly for such charges. Notwithstanding the forgoing or any other agreed delivery terms, the risk of loss or damage to the Goods shall remain with Supplier until actual receipt of goods by MDC. Supplier also shall bear all risk of loss as to properly rejected Goods.
4. Delivery. MDC’s production schedules are based upon the agreement that the Goods and Services will be delivered to MDC by the dates specified on the Cover Page. Time is therefore of the essence of this PO. If the Goods and Services are not delivered within the time specified hereon, MDC reserves the right to cancel all or part of this PO and/or to purchase elsewhere and hold Supplier accountable therefor. Supplier shall immediately notify MDC if the performance of this PO may be delayed for any reason, including an actual or potential labor dispute.
5. Acceptance criteria.
- All product, procedures, processes, and equipment as specified on the PO are subject to inspection and may be rejected at the seller’s expense any time within 30 days after receipt.
- Objective evidence must be provided where requirements for personnel are stated.
- Objective evidence must be provided where requirements for quality management system are stated.
- Product must be manufactured to the applicable number and revision identified on the PO.
- 1st article inspection data should be provided with shipment on all 1st time built and new or revised, parts.
- Any parts identified as critical/process of record must have an approved inspection report with each shipment. No changes to the equipment, methods, or process are allowed without written approval.
- Unapproved/unauthorized changes to equipment, methods, or procedures are treated as a serious offense and can lead to business hold or supplier removal.
- Raw materials test reports are required for all raw materials and any custom-made products. Additionally, certification of conformance must be provided for all special process.
- Supplier shall notify MDC of any Nonconforming product,
- Obtain approval for disposition of nonconforming product in writing before shipping,
- Notify the organization of any changes in the manufacturing process and or product that affect form, fit or function.
- Applicable documents must be flowed down to sub-tier suppliers.
- All required records for the product will be supplied to MDC for storage unless otherwise agreed to.
- Acceptance of this PO allows MDC, its customer, and any regulatory agency right of entry to any place necessary to determine and verify the quality of subcontracted work, records, and material.
- Supplier shall maintain all QMS Related product realization records for minimum of three years or as instructed by MDC.
6. Modifications/Cancellation Without Cause. MDC may at any time before completion of this PO, with notice to Supplier, make changes in quantities, drawings, specifications, delivery schedules and/or methods of shipment and packaging or may cancel all or any part of the undelivered portion of this PO, in each case with equitable adjustments in the delivery schedules or payment. Supplier agrees to minimize any claim for such an adjustment. Supplier is not entitled to anticipated profits on any cancelled Goods or Services. Supplier shall make any such adjustment claim in writing within 20 days after receipt of MDC’s notice, or Supplier shall be deemed to have waived all right to any such adjustment. MDC may audit all relevant documents prior to paying Supplier’s claim. The forgoing states MDC’s sole obligations arising from any change or cancellation of this PO.
7. Warranties. Supplier expressly warrants that (a) the Goods are genuine, unused and not counterfeit, (b) Supplier will transfer to MDC good and marketable title to the Goods, free of all liens or encumbrances, (c) the Goods and Services conform in all respects to the applicable drawings, specifications, samples, or other descriptions given, (d) the Goods will be of merchantable quality and fit for the use intended by MDC; (d) the Goods will be free from defects in materials, workmanship and design; (e) the Services will be performed in a workmanlike manner, and (f) the Goods and Services (including any deliverables) and the use thereof, either alone, or in combination with other materials, do not and will not infringe or misappropriate any patent, copyright, trademark, trade secret or other proprietary right of any third party. Supplier agrees that the warranties herein contained shall be in addition to any warranties implied in law. These warranties shall survive any inspection, delivery or acceptance of the Goods or Services or payment by MDC. All warranties run to the benefit of MDC and its customers. Goods rejected as not conforming to this PO, or as otherwise defective, shall be returned at Supplier’s expense and risk of loss, including transportation and handling costs.
8. Title to Materials, Jigs, Fixtures and Services. As between the parties, MDC shall at all times have title to all drawings, specifications, tools, jigs and fixtures, or other materials (collectively, “MDC Materials”) (a) furnished by MDC to Supplier in connection with this PO or (b) separately charged to MDC in connection with this PO. Supplier shall use such MDC Materials only in connection with this PO and shall not disclose or supply MDC Materials to any person, firm, or corporation other than MDC’s or Supplier’s employees, subcontractors, or government inspectors. Upon MDC’s request or upon completion of this PO, Supplier shall promptly deliver all MDC Materials to MDC. Supplier hereby automatically assigns, and will ensure that its subcontractors automatically assign, to MDC (i) all intellectual property rights that Supplier or any subcontractor has in any processes, inventions, discoveries, technologies, or materials developed in connection with any Services or the performance of this PO (but expressly excluding pre-existing or independently created items) and (ii) all right, title and interest in any MDC Materials purchased by Supplier or any of its subcontractors for MDC. Supplier will execute, and will cause each subcontractor to execute, any documents reasonably necessary to affect such assignments.
9. Prices and Payment. Supplier’s price shall not be higher than last quoted or last charged to MDC. Unless otherwise specified on the Cover Page, all amounts payable under this PO are due 45 days from MDC’s receipt of the related invoice or, if later, receipt of the Goods. Except as otherwise provided on the Cover Page, the price for the Goods and Services includes all applicable federal, state, and local taxes.
10. Termination for Cause. MDC may, without any liability whatsoever, terminate all or any part of this PO and exercise, singly or in any combination and in any order, all rights and remedies available at law or in equity, including all rights under the Uniform Commercial Code, if (a) Supplier breaches this PO, or (b) Supplier (i) files or has filed against it any proceedings in bankruptcy or insolvency, (ii) is insolvent or otherwise unable to meet its debts as they become due, or (iii) has appointed, with or without consent, an assignee for the benefit or creditors or a receiver.
11. Indemnity. Supplier agrees to defend, indemnify, and hold MDC and its customers harmless from all costs, liabilities, damages or expenses, including expenses and fees of counsel, arising from or relating to (a) the failure of the Goods or Services to conform to the warranties and representations contained herein or (b) any claim by third parties for property damages, personal injury or death arising from or relating to the Goods or Services or the use thereof.
12. Governing Law; Consent to Jurisdiction; Attorney’s Fees. This PO will be governed by and construed according to the laws of the State of California, without regard to its provisions concerning the applicability of the laws of other jurisdictions. The parties exclude the application of the United Nations Convention on Contracts for the International Sale of Goods. The state and federal trial courts with jurisdiction over Alameda, California, will have exclusive (other than in connection with enforcement of a judgment) jurisdiction and venue over any suit filed in connection with this PO. The parties hereby consent to jurisdiction and venue in such courts regarding controversies in connection with this PO. In any action to enforce, or arising out of, this PO, the prevailing party will be entitled to be awarded all court costs and reasonable legal fees incurred.
13. Conflict Minerals. All product supplied to MDC must comply with the “Conflict Minerals” requirements as stated in section 1502 of the Dodd-Frank Act finalized by the SEC on August 22, 2012. Any products with Tantalum (Ta), Tungsten (W), Tin (Sn) or Gold (Au) must be traceable to a smelter that is 3rd party certified by the EICC or MDC approved equivalent. Also, an MDC approved certificate must be provided with each shipment unless otherwise agreed to by MDC’s Quality management in writing.
14. Suspect/Counterfeit Items. All materials supplied to MDC through Supplier are required to be new and not reconditioned, used, or repaired unless otherwise specified on a purchase order. The Supplier and their sub-suppliers shall have controls in place to prevent any suspect/counterfeit item being delivered to MDC. If suspect / counterfeit items are identified by MDC as having been supplied by Supplier, the Supplier shall be required to promptly replace such parts with those acceptable to MDC Vacuum Products, LLC and the Supplier shall be liable for all costs relating to, but not limited to the impoundment, removal and/or replacement of such items. MDC will not return items deemed counterfeit back to the Supplier; all units will be destroyed on-site. The Supplier will be given right to inspect defective parts within 14 days of notification. Proof of destruction will be provided to the Supplier.
15. Miscellaneous. This PO is the final, complete and exclusive statement of the agreement between Supplier and MDC with respect to the Goods and Services described or referenced herein. Without limiting the foregoing, this PO does not replace any pre-existing nondisclosure agreement between the parties. However, if the terms of any such nondisclosure agreement conflict with this PO, then the terms of this PO will control. If the terms on the Cover Page conflict with the above terms, the terms on the Cover Page will control. No terms, conditions, understanding, usages of the trade, courses of dealing or agreements purporting to modify, vary, explain or supplement this PO shall be binding unless and until made in writing and signed by Supplier and MDC. The failure of either party to enforce any of its rights hereunder shall not constitute a waiver of such rights or of any other rights hereunder. MDC reserves the right to correct clerical errors in this PO or any invoice. Supplier shall not delegate any duties, nor assign any rights or claims under this PO, without prior written consent of MDC, and any such attempted delegation or assignment without such consent shall be void. MDC is an Equal Opportunity Employer and, as such, CFR 41 60-1.4(a) is incorporated herein by this reference. If any of the provisions in this PO are held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and the affected provisions will be enforced to the fullest extent possible in accordance with the mutual intent of the parties hereto.
16. Obsolescence. In order to maintain a supply of parts, MDC require a guarantee of availability of the ordered component for a minimum of 365 days, and a minimum notice of 365 days in advance of impending obsolescence of products or components. This Purchase Order is expressly conditioned on the Seller’s assent to this term.
Sections 5-16 shall survive the termination of this PO.
Date Modified: 08/12/2021