1. Agreement; Acceptance.  The purchase order (“PO”) and these terms and conditions (the “Terms and Conditions”), together with any documents referenced in writing herein, constitute the agreement of the parties (the “Agreement”).  The Agreement governs the purchase and sale of all goods and/or services identified on the PO (the “Goods”) provided by the seller identified on the cover page of the PO (“Seller”) to the buyer identified on the cover page of the PO (“Buyer”).  The PO expressly limits acceptance to the terms of the PO and these Terms and Conditions, and Buyer hereby objects to any different, conflicting, or additional terms or conditions in any response to the PO.  The Agreement may be accepted only by either PO acceptance or by delivering the Goods ordered by the specified delivery date or a date otherwise accepted in writing by Buyer.  The Agreement shall constitute the complete and exclusive statement of the terms and conditions of the contract between the parties and may hereafter be modified only by written instrument executed by the authorized representatives of both parties.  IF THE PO HAS BEEN ISSUED BY BUYER IN RESPONSE TO AN OFFER OR IS DEEMED TO BE AN ACCEPTANCE OF AN OFFER, AND IF ANY OF THE TERMS HEREIN ARE IN ADDITION TO OR DIFFERENT FROM OR CONFLICT WITH ANY TERMS OF SUCH OFFER, THEN THE ISSUANCE OF THE PO BY BUYER SHALL CONSTITUTE AN ACCEPTANCE OF SUCH OFFER, SUBJECT TO THE EXPRESS CONDITIONS THAT SELLER ASSENT TO SUCH ADDITIONAL AND DIFFERENT TERMS HEREIN AND ACKNOWLEDGE THAT THE TERMS CONSTITUTE THE ENTIRE AGREEMENT BETWEEN BUYER AND SELLER WITH RESPECT TO THE SUBJECT MATTER HEREOF AND THE SUBJECT MATTER OF SUCH OFFER. SELLER SHALL BE DEEMED TO HAVE SO ASSENTED AND ACKNOWLEDGED UNLESS SELLER NOTIFIES BUYER TO THE CONTRARY IN WRITING WITHIN TEN (10) DAYS OF RECEIPT OF THE PO.
  2. Delivery.  Shipment of the Goods shall be made in the quantities and at the time or times specified on the PO or in supplementary documents furnished by Buyer.  Time is of the essence for this Agreement and failure to deliver the Goods within the time specified on the PO shall constitute a default.   If at any time Seller has reason to believe that deliveries will not be made as scheduled, Seller shall immediately provide Buyer with written notice setting forth the cause or causes of the anticipated delay.  Late deliveries, deliveries of Goods which are defective or which do not conform to the PO, and failure to provide Buyer, upon request, with reasonable assurances of future performance shall be causes allowing Buyer to terminate the Agreement for cause, and Seller shall be liable for all direct damages to Buyer by reason of such events that caused termination.  Should the actual delivery date be later than the delivery date specified in the PO through no fault of Buyer, Seller shall pay the difference between the cost of standard shipping and the cost of premium transportation.
  3. Inspection.  All Goods shall be received subject to Buyer’s right to inspection and rejection.  Buyer shall have a reasonable amount of time to inspect Goods, depending upon the method of packaging and the quantity purchased.  Payment for Goods delivered hereunder shall not constitute acceptance of such Goods, and all payments shall be made with a reservation of rights by Buyer for defects, including, without limitation, defects apparent on the face thereof. Acceptance of any part of a shipment shall not bind Buyer to accept the remainder of that shipment or any future shipments or constitute a waiver of Buyer’s right to return any Goods accepted for which Buyer may otherwise have a right of return, including, but not limited to, as a result of a breach of warranty. For Goods delivered more than five (5) days in advance of the delivery date specified on the PO without Buyer’s written approval, Buyer reserves the right, without loss of discount or payment term privileges, either to pay these invoices according to the original payment schedule in the PO without regard to the actual delivery date or to return such Goods at Seller’s expense.
  4. Buyer’s Right to Delay or Cancel.  Buyer may delay delivery and/or acceptance occasioned by causes beyond its control.  Buyer may terminate, in whole or in part, the PO at any time without further liability to Seller by written notice to Seller for Buyer’s convenience.  In the event of such notice of termination, Seller shall immediately cease all work which is subject to such termination.  In such case Buyer’s liability shall be limited to, in the case of non-standard Goods, to the direct actual and reasonable costs of work and materials substantiated in writing by Seller in direct connection to Goods associated specifically with the termination.  Seller must make all reasonable efforts to mitigate such costs and provide written documentation of such to Buyer.  In the case of standard Goods, in no event shall Buyer’s liability exceed the outstanding balance of the price of such Goods.  In no event shall Buyer be liable for any incidental, consequential or special damages, including but not limited to lost profits.  Any termination claim must be submitted in writing to Buyer within thirty (30) days after the effective date of the termination. Buyer will make no payments for finished work, work in progress, or raw material fabricated or procured by Seller in excess of any order.  Except as otherwise provided herein, the provisions of this clause will not apply to any cancellation by Buyer for default by Seller or for any other cause allowed by law or under these terms.  Upon payment, Buyer shall be entitled to all work and materials for which it paid.
  5. Packaging and Shipment; Title.  All Goods delivered under the PO shall be packed and packaged by Seller to ensure safe arrival at the “Ship to” address contained on the face of the PO, and shall conform to Buyer’s applicable purchase specification and/or receiving requirements, as such may be updated in writing from time to time. All Goods, wrappers, and containers shall bear all markings required by applicable laws. Unless otherwise specified in Buyer’s purchase specification or receiving requirement: (a) all outside packaging shall bear the PO number; and (b) all invoices, packing lists, bills of lading, and shipping orders shall bear the PO number, item number(s), Buyer’s part number, quantity and description. If shipping terms are not defined on the face of the PO, for sales originating in the United States, the shipping terms shall default to Freight Collect (or ExWorks), and for sales originating outside the United States, the shipping terms shall default to FCA (Port of Export) Incoterms 2010. Title passes to Buyer on receipt of the Goods at the port of origin; provided, however, that the foregoing does not relieve Seller of any responsibility for damages as set forth in this Agreement.
  6. Payment.  Unless another payment term has been expressly agreed to by Buyer or is noted by Buyer on the face of the PO, all invoices furnished hereunder by Seller, if approved by Buyer, are due and payable forty-five (45) days following the end of month during which such invoice was received.   All claims for monies owing by Seller or its affiliates to Buyer or its affiliates, whether under the PO or otherwise, shall be subject to set off by Buyer against any present or future monies owed by Buyer or its affiliates to Seller or its affiliates.
  7. Prices.  All product prices are exclusive of all taxes and duties except as otherwise expressly agreed by the parties. All such taxes and duties deemed included in the price shall be borne by Seller, and Seller shall pay such taxes and duties directly or reimburse Buyer for them.  Risk of loss after delivery (as specified in the applicable delivery term) but prior to actual receipt and/or acceptance of goods by Buyer shall be borne by Seller notwithstanding any agreement with respect to the payment of transportation charges.
  8. Warranties.  In addition to implied warranties, Seller expressly warrants that all Goods covered by the PO shall, unless otherwise expressly specified in the PO, (a) be new, (b) conform to the specifications, drawings, samples, or other description upon which the PO is based, (c) be fit and sufficient for the purpose for which they were manufactured and sold, and if Seller knows or has reason to know of any other particular purpose for which Buyer intends to use such Goods, the Goods will be fit for such particular purpose, (d) be merchantable, (e) be of good material and workmanship, (f) be free from defect, whether latent or patent, and (g) be free and clear of any and all liens, charges, or encumbrances. Inspection, test, acceptance, use, and subsequent dispossession or sale of the Goods shall not affect Seller’s obligation under any express or implied warranty, and such warranties shall survive inspection, test, acceptance, and use.  Seller hereby extends to Buyer any and all warranties received from Seller’s suppliers and agrees to enforce such warranties on Buyer’s behalf.  All Seller’s warranties shall run to Buyer, its successors, assigns, customers, and the users of its products that incorporate Goods. Seller agrees to, at Buyer’s option, replace or correct defects of any Goods not conforming to the foregoing warranty promptly, without expense to Buyer, when notified of such nonconformity by Buyer.  In the event of failure by Seller to correct defects in or replace nonconforming Goods promptly, Buyer, after reasonable notice to Seller, may, at Buyer’s option, (a) make such corrections or replace such Goods and charge Seller for the cost incurred by Buyer thereby, or (b) receive a refund from Seller of the purchase price of the Goods. In addition, Seller will compensate Buyer for any and all of Buyer’s reasonable and auditable costs and damages incurred in connection with any nonconforming Goods provided by Seller.
  9. Intellectual Property Rights.  Seller warrants that manufacture and use of the Goods and the sale or offer for sale of the Goods does not and will not infringe upon any United States or foreign patent, trademark, copyright, or other intellectual property right. In case the sale or use of the Goods shall be found to constitute patent, copyright, or trademark infringement and sale or use is enjoined, Buyer may, at its sole option, pursue any remedy or remedies available at law or in equity, including without limitation, requiring Seller to either procure for Buyer the right to continue selling and/or using such Goods, modify such Goods so they become non-infringing, or remove such Goods and refund to Buyer the total purchase price therefor.
  10. Confidentiality.
    1. Confidential Information.  “Confidential Information” means all nonpublic information relating to the Buyer or its business that is disclosed to, produced by, or otherwise obtained by the Seller including but not limited to technical information, advice, know-how, drawings, designs, improvements to a Product, sales volume, plans, forecasts, trade secrets, and information about a party’s dealers, distributors, or customers.  Confidential Information also includes the pricing and all information exchanged (whether oral, written, or electronic) relating to this Agreement, including information received from third parties that the Buyer has agreed to treat as confidential.  Confidential Information does not include information that (a) is or becomes available from other sources on a nonconfidential basis, without disclosure by the Seller, or (b) the Seller can show by convincing evidence was in the possession of or developed by the Seller before disclosure by the Buyer.  The Seller must not disclose or show Confidential Information to any third party without the Buyer’s written consent.  The Seller may use Confidential Information only for purposes of fulfilling this Agreement, and they must treat the details of this Agreement as Confidential Information.
    2. Nondisclosure and Nonuse.  The Seller will not disclose to others or use any Confidential Information, except as required to perform its obligations under this Agreement and to the extent required by a court of competent jurisdiction. If the Seller is required by judicial or administrative process to disclose Confidential Information, the Seller will promptly notify the Buyer and allow the Buyer a reasonable time to oppose such process. If disclosure is nonetheless required, the Seller will use reasonable efforts to limit the dissemination of Confidential Information that is disclosed and to obtain confidential treatment for any Confidential Information that is so disclosed. The Seller may disclose Confidential Information to its employees who need to know the information in connection with this Agreement, who are made aware of its confidential nature, and who are obligated to comply with the restrictions imposed by this Confidentiality Section.
    3. Duration.  The obligations stated in this Confidentiality Section will continue during the term of the Agreement and so long afterwards as the Seller retains or knows any Confidential Information.
    4. Return of Information.  Upon the expiration or termination of this Agreement for any reason, the Seller will promptly return or destroy, as the Buyer may direct, all tangible materials provided to the Seller by the Buyer that embody Confidential Information and will erase or delete all such Confidential Information embodied in any magnetic, optical, or similar medium or stored or maintained on any information storage or retrieval device.
  11. Compliance with Laws.
    1. Seller represents and warrants that all Goods and incorporated materials are produced or provided in compliance with, and Seller will comply with, all applicable laws, rules, regulations, orders, and conventions, including without limitation those relating to environmental, health and safety, restricted substances, data security and data processing laws, anti-discrimination, wage and hour, child and forced labor, immigration, or other workplace or product-safety requirements. Seller shall permit Buyer or its representatives to have reasonable access to the site(s) where work under this Agreement is performed to assess Seller’s compliance with its representations and warranties.
    2. Seller must ensure the traceability of Products through its supply chain and maintain an industry-standard quality-management system.  At Buyer’s request, Seller must provide Buyer with all requested information related to Seller’s supply chain.  Such information includes without limitation material complete and accurate (a) safety data sheets for all Products, (b) substance declarations for the material ingredients in the Products, (c) statements reflecting the origin of raw materials used in the Products, and (d) delivery lead-times for those materials (collectively, “Materials Data”).  Seller must notify Buyer if there are any changes to the Materials Data after they are provided to Buyer.  If Seller proposes to make any modifications to Products or Specifications, it must provide updated Materials Data to Buyer with any such proposal.
    3. Buyer and Seller each agree that it will comply, and remain in compliance, with the Foreign Corrupt Practices Act (FCPA) and all applicable export and/or import regulations of the United States or any foreign country including all applicable local or federal laws.
    4. If Seller breaches any provision of this Section 11, Buyer—without limiting other rights available to it at law or in equity—will be entitled to suspend in whole or in part its obligations under this Agreement and all POs until such time as Buyer is satisfied that such breach has been resolved.
  12. Buyer’s Property.
    1. Seller acknowledges that any specifications, drawings, information, tools, molds, jigs, dies and other materials furnished to Seller or funded or paid for (whether separate as a part of the unit price), in whole or in part, by Buyer (“Buyer Property”) is confidential and proprietary to Buyer and that use of or disclosure of Buyer Property other than as expressly provided in this Agreement will be detrimental to Buyer.  Buyer Property shall be used exclusively for the purposes of performance in accordance with the Agreement, be clearly marked as Buyer’s property and be segregated when not in use, be properly used, maintained and kept in good working condition at Seller’s expense and be delivered to Buyer promptly on Buyer’s demand.  Seller agrees to maintain the confidentiality of and use all Buyer Property (whether of a technical or commercial nature or otherwise), provided in whatever form or medium by or on behalf of Buyer, only for the purposes of performance in accordance with the Agreement and to give access to Buyer Property on a need to know basis only to its employees who have obligations to protect Buyer Property on terms no less restrictive than those set forth herein, and not to transfer, publish, disclose or otherwise make available Buyer Property or any portion thereof to any third party or persons without Buyer’s prior written consent. Seller shall return any copies or reproductions thereof immediately upon Buyer’s demand. 
    2. Seller shall not use the name, logo, trademark, or any other reference to Buyer, either direct or indirect, in publicity releases, advertising, case studies, sales literature or reference of or to Buyer nor disclose, advertise or publish the existence or the terms and conditions of the Agreement, without the prior written consent of Buyer.
    3. Seller agrees Buyer will own all materials, concepts, and inventions that Seller prepares, develops, or makes (alone or jointly with others) in the course of providing services under this Agreement (“Work Product”), and all related rights (including copyrights, trademarks, and patents). Seller further agrees that any information, photographs, artwork, drawings, know-how, specifications, ideas, designs, concepts, techniques, improvements, discoveries, developments, inventions, technologies and other Work Products generated or developed in the course of work performed under the Agreement by Seller and any intellectual property and other proprietary rights therein or thereto (together, “IP”) shall vest into Buyer and Seller agrees to assign or cause to be assigned to Buyer all right, title and interest to any and all such rights and to do all such things as are necessary to perfect such rights and to protect Buyer’s interest therein. IP will remain the property of Buyer and may not be used by Seller for any purpose other than performing under this Agreement or disclosed by Seller to any third party.  If this Section 12.c. is unenforceable in any respect under applicable law, Seller agrees to provide Buyer an exclusive royalty-free license to the IP.
  13. License.  If the Goods are or contain licensed software, Seller grants to Buyer a nonexclusive, worldwide, perpetual license to such software sufficient in scope for the intended use (including the right to transfer the license for, or the right to sublicense, the software). The license fee shall be included in the price.
  14. Assistance of Buyer’s Personnel.  Buyer’s engineering and technical personnel may from time to time render assistance or give technical advice to Seller but is under no obligation to do so.  Such personnel may change the work to be performed and/or the provisions of the PO.
  15. Indemnification by Seller. In addition to and not exclusive of any other right or remedy available under the Agreement or at law, Seller agrees that it will indemnify, defend, and hold Buyer, its affiliates and its and their successors and assigns harmless from and against all liabilities, claims, suits, proceedings, judgments, orders, fines, losses, damages, costs and expenses (including reasonable attorney fees, however incurred, including in any bankruptcy or insolvency proceeding or on appeal) to the extent arising out of or relating to:  (a) Seller’s breach of any term or condition of the PO or this Agreement; (b) the breach of any express or implied representations and warranties under the PO or this Agreement; (c) Seller’s negligence, gross negligence, or willful misconduct in connection with the PO, this Agreement, or the Goods; (d) any product liability claims with respect to the Goods, including without limitation, for defects in the design, manufacture, or other attributes of the Goods, unless such claim is solely the result of Buyer’s gross negligence or intentional acts or omissions; or (e) actual or alleged infringement of any patents, trademarks or other intellectual property related to the Goods.
  16. Insurance.  Seller will maintain product liability insurance on the Goods and general liability insurance in the minimum amount of $1,000,000.  At Buyer’s request, Seller will furnish Buyer with a certificate of such insurance and copies of relevant policies, declarations, and endorsements evidencing that the required insurance is in force.  Liability insurance limits will not be construed to limit Seller’s liability hereunder.
  17. Equal Employment Opportunity.
    1. Veterans Rule. Seller shall abide by the requirements of 41 CFR 60-300.5(a). This regulation prohibits discrimination against qualified protected veterans, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans.
    2. Disability Rule. Seller shall abide by the requirements of 41 CFR 60-741.5(a). This regulation prohibits discrimination against qualified individuals on the basis of disability, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified individuals with disabilities.
    3. Equal Employment Opportunity Clause. If applicable, Seller is aware of its responsibility under Executive Order 11246 as amended and 41 CFR § 60-1.4 and agrees to be bound by its provisions.
  18. General.
    1. Notice. All notices and communications required or permitted hereunder shall be in writing and may be given in person, by courier or other expedited delivery service, electronic transfer (e-mail or fax), or by registered or certified mail, return receipt requested, postage prepaid, addressed to the party intended as a recipient at the address of such party set forth on the face of the PO. All notices given by registered or certified mail as set forth above shall be deemed given and made on the third business day after deposit in the mail; all other notices and communications shall be deemed given and made upon receipt by the addressee.
    2. No Assignment. Seller shall not assign or subcontract any of its rights and obligations under the PO to any third party without the prior written consent of Buyer.
    3. Severability. If any provision of this Agreement is found unenforceable, that provision will be deemed to be modified to the extent necessary to make it enforceable, while preserving its intent.  If any provision of this Agreement is nonetheless held unenforceable in any jurisdiction, the provision will be severed from this Agreement as to that jurisdiction, and the enforceability of this Agreement in any other jurisdiction and of the remaining provisions in that jurisdiction will not be affected.
    4. Waiver. No waiver of any breach of any condition, covenant or term shall be effective unless it is in writing and accepted by Buyer. Buyer’s failure to insist on performance of any term or condition or to exercise any right or privilege shall not constitute a waiver or acceptance.
    5. Governing Law. This Agreement and any claim arising out of or related to this Agreement, the PO, or the Goods shall be governed by, interpreted, and enforced in accordance with the laws of the State of Oregon, U.S.A., including without limitation its Uniform Commercial Code but excluding its conflict of laws rules and the United Nations Convention on Contracts for the International Sale of Goods.
    6. Dispute Resolution. Any claim arising out of or related to this Agreement, the PO, or the Goods will be resolved, at option of the claiming party, by arbitration, which, unless the parties agree otherwise in writing, will be administered and heard by and in accordance with the rules of the American Arbitration Association, with the arbitration to take place in Portland, Oregon.  The award rendered by the arbitrator will be final and binding, and judgment may be entered on the award in any court having jurisdiction.  With respect to any claim arising out of or related to this Agreement, the PO, or the Goods, both parties irrevocably submit to the jurisdiction and venue of the state and federal courts situated in Multnomah County, Oregon, and those courts, unless arbitration is elected by the claiming party in accordance with this Section 18.f., shall have exclusive jurisdiction over such claims; provided, however, that this section shall not restrict Buyer’s right to bring an action against Seller in any jurisdiction in order to specifically enforce the provisions of this Agreement, seek injunctive relief, or obtain security for enforcement of any arbitration award or any judgment obtained.  In the event of any suit, action, or arbitration proceeding on any claim arising out of or related to this Agreement, the PO, or the Goods, the prevailing party will be entitled to recover, in addition to other costs, reasonable attorney fees in connection with such suit, action, or arbitration, in any appeal or petition for review, and in any bankruptcy proceeding.