TERMS AND CONDITIONS OF PURCHASE ORDER

Revised: 6/27/2016

INSTRUCTIONS TO SUPPLIER

This Purchase Order is subject to the Terms and Conditions incorporated herein by this reference.

1) ACCEPTANCE

Commencement of performance pursuant to this Purchase Order constitutes acceptance hereof by Seller. If specified delivery dates cannot be met, Seller shall notify Sylhan promptly of Seller’s best alternative proposed delivery date, which Sylhan may accept or reject. The terms of this Purchase Order may not be modified, superseded or amended except in writing, signed by an authorized purchasing representative of Sylhan. Each shipment received by Sylhan shall only be upon the terms of this Purchase Order, notwithstanding any terms contained in any quotation, acknowledgment, invoice or other form of Seller, or Sylhan’ s acceptance of, or payment for, any shipment or any other act.

2) ENTIRE AGREEMENT; MODIFICATIONS

This agreement is the complete, final, and exclusive statement of the terms of the agreement between the parties and supersedes any and all other prior and contemporaneous negotiations and agreements, whether oral or written, between them relating to the subject matter hereof. This agreement may not be added to, modified, superseded or otherwise altered, except by in writing signed by an authorized Sylhan purchasing representative. Acceptance of any terms or conditions other than those set forth herein is subject to negotiation and written acceptance by Sylhan. Seller’s receipt of an acknowledgement of an order containing these terms and conditions of sale shall constitute Seller’s acceptance of these terms unless Seller promptly objects to such terms in writing. Sylhan’ s failure to object to different or additional terms and conditions contained in Seller' s purchase order or other communication shall not be deemed a waiver of any term or condition set forth herein, or an acceptance of any such provision(s). The terms and conditions of this Agreement shall prevail notwithstanding any variance with the terms and conditions of any acknowledgement or other document submitted by Seller. Notwithstanding the foregoing this Agreement will not supersede or take the place of any written agreement which is signed by both parties and cover the same subject matter as the Agreement or its related purchase orders.  

3) SERVICES AND DELIVERABLES

Seller agrees to perform the services (#Services#) and/or provide the goods or Services deliverables (collectively referred to as #Goods#) describes in any purchase order, in accordance with the applicable purchase order, scope of work and with these Terms and Conditions (#Agreement#). Upon acceptance of a purchase order, shipment of Goods or commencement of a Service, Seller shall be bound by the provisions of this Agreement, including all provisions set forth on the face of any applicable purchase order, whether Seller acknowledged or otherwise signs this Agreement or the purchase order. Any terms or conditions contained in any acknowledgement, invoice, or other communication of Seller, which are inconsistent with the terms and conditions herein are hereby rejected. Sylhan Goods shall pass to Sylhan upon receipt of the Goods at the designated destination. If the Goods ordered are destroyed prior to title passing to Sylhan may at its option cancel the Agreement or require delivery of substitute Goods of equal quantity and quality. Such delivery will be made as soon as possible. If loss of Goods is partial, Sylhan shall have the right to require delivery of the Goods not destroyed.

4) PRICE AND PAYMENT

Prices or billing amounts shall not exceed the prices stated on the Purchase Order without the prior written consent of Sylhan. The prices stated include packing, crating and transportation F.O.B. point shown. Seller agrees that any price reduction applicable to the ordered Goods subsequent to the order date but prior to delivery will be applicable to this Purchase Order. As full consideration for the performance of the Services, delivery of the Goods, and the assignment of rights to Sylhan as provided herein, Sylhan shall pay Seller the amount agreed upon and specified in the applicable purchase order, or the Seller’s quoted price on the date of shipment (for Goods) or the date Services were started (for Services) whichever is lower. Applicable taxes and other charges such as shipping cost, duties, customs, tariffs, impost and government imposed surcharges shall be stated separately on Seller' s invoice. Payment shall not constitute acceptance. All personal property taxes assessable upon the Goods prior to receipt by Sylhan of Goods conforming to the purchase order shall be borne by Seller. Seller shall invoice Sylhan for all Goods delivered and all Services actually performed. Each invoice submitted by Seller must be provided to Sylhan within ninety (90) days of completion of the Services or delivery of the Goods and must reference the applicable purchase order. Sylhan reserves the right to return all incorrect invoices. Unless otherwise specified on the face of a purchase order, Sylhan shall pay the invoiced amount within sixty (60) days after receipt of a correct invoice. The cash discount period will date from Sylhan’s receipt of the ordered goods or from the date of the invoice, whichever is later. Sylhan reserves the right to refuse any shipments sent C.O.D. and to dishonor any draft, and all Goods attendant therewith are at Seller’s risk. Except for charges to taxes as provided herein below, Sylhan will not be responsible for any charge not shown on the face of this Purchase Order without Sylhan’s prior written consent to such charges in advance. Seller will receive no royalty or other remuneration on the production or distribution of any products developed by Sylhan or Seller in connection with or based on the Goods or Services provided.
FABRICATION AND MATERIAL COMMITMENT Sylhan shall not be responsible for any of Seller’s commitments for materials or fabrication in advance of the time necessary to meet delivery dates specified herein unless agreed to by Sylhan in writing in advance.

5) WARRANTIES

Services: Seller represents and warrants that all Services shall be completed in a professional manner, with the degree of skill and care that is required by current, good and sound professional procedures. Furthermore, Seller represents and warrants that the Services shall be completed in accordance with applicable specifications and shall be correct and appropriate for the purposes contemplated in this Agreement or by the applicable Purchase Order. Goods: Seller warrants that all Goods provided will be new and will not be used or refurbished, unless specified as such on the face of this Purchase Order. Seller warrants that all Goods delivered shall be of good materials and workmanship, free from defects, and shall conform to all applicable specifications, drawings or samples specified or furnished to Sylhan for a period of twelve (12) months from the date of delivery to Sylhan or for the period provided in the Seller’s standard warranty covering the Goods, whichever is longer. Seller also warrants that all Goods delivered hereunder shall be merchantable and fit for their intended purpose. Seller herby agrees that it will make spare parts available to Sylhan for a period of five (5) years from the date of shipment at Seller’s then current price, less applicable discounts. Additionally, Goods purchased shall be subject to all written and oral express warranties made by Seller’s agents and to all warranties provided for by the New York Commercial Code (Uniform Commercial Code). All warranties shall be construed as conditions as well as warranties and shall not be exclusive. Seller shall furnish to Sylhan Seller’s standard warranty and service guaranty applicable to the Goods. All warranties and Service guaranties shall run both to Sylhan and to its customers and shall survive any inspection, delivery, acceptance or payment by Sylhan. If Sylhan identifies a warranty problem with the Goods during the warranty period, Sylhan will promptly notify Seller of such problems and will return or have returned, as reasonably necessary, the Goods to the Seller, at Seller’s expense. Within five (5) days business days of receipt of the returned Goods, Seller shall at Sylhan’s option, either repair or replace such Goods, or credit Sylhan for the same. Replacement and repaired Goods shall be warranted for the remainder of the warranty period or six (6) months, whichever is longer. Intellectual Property Rights: Seller warrants that the Goods do not infringe upon or constitute an unauthorized use of any patent, trade secret, copyright or other intellectual property right, and Seller agrees to defend at Seller' s expense, all claims, suits, actions or proceedings, in law or equity, against Sylhan, its affiliates, subsidiaries, successors, assigns, customers and users of any of the Goods or actual or alleged infringement or unauthorized use of any such patent, copyright, trade secret or other intellectual property right resulting from or arising out of the sale of the Goods. Seller further agrees to pay and discharge any and all judgments, decrees, penalties and settlements which may be rendered or reached in any and all such claims, suits, actions or proceedings against Sylhan, its successors, assigns, customers and users.

6) INSPECTION

(a) Sylhan shall have a reasonable time after receipt of Goods and Services and before payment to inspect them for conformity hereto, and Goods received prior to inspection shall not be deemed accepted until Sylhan has determined whether the Goods conform to specifications hereof. Receipt of goods prior to inspection shall not constitute acceptance hereof. Sylhan may run reasonable tests to determine whether the Goods conform to the specifications hereof. Use of a portion of the Goods for testing shall not constitute an acceptance of the Goods. If Goods tendered do not wholly conform with the provisions hereof, Sylhan shall have the right to reject such Goods and shall have the right to reserve and keep a sample of the Goods for the purpose of obtaining any discount offered. Seller must notify Sylhan of any non-conforming product prior to shipping to Sylhan.  Sylhan must approve of any non-conforming product prior to shipping product to Sylhan. Such payment shall not prejudice the right of Sylhan to return goods not conforming to specifications or which fail inspection, and to receive credit or reimbursement for such returned Goods to Seller. After notice to Seller of non-conforming Goods, all such Goods will be held at Seller's risk until the discrepancy is corrected or such Goods are returned to Seller. Sylhan may, and at Seller's direction shall, return such Goods to Seller at Seller’s risk, and Seller shall pay all transportation charges, both to and from the original destination. Payment for any Goods shall not be deemed an acceptance thereof and Seller shall refund any payment made by Sylhan for returned Goods, unless Seller promptly corrects the discrepancy or replaces the Goods at Seller's expense. (b) Seller and its suppliers shall establish and maintain a quality control and inspection program as specified in the Purchase Order(minimum quality requirements will follow ISO900 guidelines). Subject to applicable national security regulations, Buyer and Buyer’s representatives shall have the right of access, on a non-interference basis, to any area of Seller or Seller’s supply chain sub-tier premises where any part of the work is being performed. Seller shall flow this requirement down to its sub tier supply chain suppliers as a condition of this contract. Seller shall, without additional costs to Buyer, provide all reasonable in-plant accommodations, facilities, and assistance for the safety and convenience of the Buyer and the Buyer’s representatives in the performance of their duties. (c) Seller shall keep and maintain inspection, test and related records, which shall be available to Buyer or Buyer’s representative. Seller shall allow copies to be made and shall furnish all information required by the Buyer or Buyer’s representative. Seller is to retain records for a minimum of three years.

7) CHANGES

(a) By written order, Buyer may from time to time direct changes for: (i) technical requirements; (ii) shipment or packing methods; (iii) place of delivery, inspection or acceptance; (iv) reasonable adjustments in quantities, delivery schedules or both; (v) amount of Buyer–furnished property; (vi) time of performance; and, (vii) place of performance. (b) If any such change causes an increase or decrease in the price or in the time required for its performance, Seller shall promptly notify Buyer thereof and assert its claim for equitable adjustment within ten (10) days after the change is ordered, and an equitable adjustment shall be made. However, nothing in this provision shall excuse Seller from proceeding immediately with the directed change(s). Changes shall not be binding upon Buyer except when specifically confirmed in a written Purchase Order or Change Order.

8) MANDATORY FLOW DOWN

Seller and its subcontractors will comply with all mandatory flow down clauses, whether pursuant to a U.S. government contract or otherwise, applicable to buyer for Goods that are subject of this Order.

9) EXCESS GOODS

Except for quantities of Goods in excess of those ordered constituting customary quantity variations common to the trade or industry, any quantity of Goods in excess of the amount ordered need not be accepted, and such excess goods may be received, held and returned to Seller by Sylhan at Seller’s risk and expense.

10) INDEPENDENT CONTRACTOR

Seller is an independent contractor for all purposes, without expressed or implied authority to bind Sylhan by contract or otherwise. Neither Seller, nor its employees, agents, or subcontractors are agents or employees of Sylhan, and therefore are not entitled to any employee benefits of Sylhan, including, but not limited to any type of insurance. Seller shall be responsible for all costs and expenses incident to performing its obligations under this Agreement and shall provide Seller's own supplies and equipment.

11) BUYER’S PROPERTY

Unless otherwise agreed in writing, all drawings, specifications, tools, dies, molds, jigs, patterns, machinery, fixtures, equipment, software and any other property furnished to Seller by Sylhan or paid for by Sylhan for use in the performance of this Purchase Order (#Buyer’s Property#) shall be and remain the sole property of Sylhan and no title will pass from Sylhan to Seller. Buyer’s Property will be subject to removal upon Sylhan’s instruction, may be used only in filling orders from Sylhan, will be held by Seller at Seller’s risk, and kept insured by Seller while in Seller’s custody or control and held free and clear of all liens and encumbrances. The insurance shall be in an amount equal to the replacement cost thereof, the loss payable to Sylhan. Seller’s failure to return Buyer’s Property will be deemed a material breach of this Agreement and will render Seller liable for incidental, special, consequential and general damages.

12) TAXES AND RECORDS

All sales, use, excise or similar taxes applicable to the sale of Goods shall be shown separately on Seller’s invoice. Seller shall be solely responsible for filing the appropriate federal, state and local tax forms, including estimated taxes and employment taxes (if any) due with respect to Seller' s receipt of payment under this Agreement. Seller further agrees to provide Sylhan with reasonable assistance in the event of a government audit. Sylhan shall have no responsibility to pay or withhold from any payment to Seller under this Agreement, any federal, state or local taxes or fees.

13) CONFIDENTIALITY

Seller may acquire knowledge of Sylhan Confidential Information (as defined below) in connection with its performance hereunder and agrees to keep Sylhan’s Confidential information in confidence during and following termination or expiration of the Agreement. #Sylhan Confidential Information# includes but is not limited to all information, whether written or oral, in any form, including without limitation, information relating to the research, development, products, methods of manufacture, trade secrets, business plans, customers, suppliers, finances, personnel data, and other material or information considered proprietary by Sylhan relating to the current or anticipated business or affairs of Sylhan which is disclosed directly or indirectly to Seller. In addition, Sylhan Confidential Information means any third party's proprietary or confidential information disclosed to Seller in the course of providing Services or Goods to Sylhan. Sylhan Confidential Information does not include any information (i) which Seller knew before Sylhan disclosed it to Seller, (ii) which becomes publicly known through no wrongful act of Seller, or (iii) which Seller developed independently, without reference to Sylhan’s Confidential Information, as evidenced by appropriate documentation. Seller agrees not to copy, alter, directly or indirectly disclose any Sylhan Confidential Information. Additionally, Seller agrees to limit its internal distribution of Sylhan Confidential Information to Sellers Agents who have a need to know, and to take steps to ensure that the dissemination is so limited, including the execution by Seller's assistants of nondisclosure agreements with provisions substantially similar to those set forth herein, before commencement of work.

14) TERMINATION

Sylhan may, at any time, terminate this Purchase Order or any Service(s) for its convenience, in whole or in part, by written notice or verbal notice confirmed in writing to Seller. Seller shall cease to perform Services and/or provide Goods under this Agreement on the date of termination specified in such notice. In the event of termination of the Purchase Order, Seller shall in no event be excused from performing in accordance with all open deliveries/commitments for Goods or Services to the extent such deliveries/commitments for Goods or Services have not been terminated. In the event of such termination, Sylhan shall pay the Seller for the portion of the Services satisfactorily performed and those conforming Goods delivered to Sylhan through the date of termination, less appropriate offsets, including any additional costs to be incurred by Sylhan.

15) PRODUCT CHANGES

Seller agrees to notify Sylhan, in writing, of any proposed changes in design affecting performance, reliability, safety, interconnectablility, interchange ability, mean time to repair, external appearance, compatibility, and form fit or function of the Goods furnished hereunder, no less than thirty (30) days prior to the incorporation to the Goods. Sylhan reserves the right to reject the incorporation of any such change, and to terminate the Purchase Order without liability.

16) ASSIGNMENTS AND SUBCONTRACTING

Seller shall not delegate or subcontract any duties, nor assign any rights under this Agreement without the prior written consent of Sylhan, but Seller may purchase goods it normally purchases to perform the work.

17) FORCE MAJEURE

Sylhan shall not be liable for any failure to perform including failure to (i) accept performance of Services or, (ii) take delivery of the Goods as provided caused by circumstances beyond its reasonable control which make such performance commercially impractical, including, but not limited to, acts of God, fire, flood, acts of war, government actions, accidents, labor difficulties or shortages, inability to obtain materials, equipment or transportation.

18) SEVERABILITY

In the event that any provision of this Agreement shall be deemed to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The parties agree to replace any invalid provision with a valid provision, which most closely approximates the intent and economic effect of the invalid provision.

19) LIMITATION OF LIABILITY

In no event shall Sylhan be liable to Seller or Seller' s Agents or any third party for any incidental, indirect, special, or consequential damages arising out of, or in connection with, this Agreement, whether or not Sylhan was advised to the possibility of such damage.

20) NON EXCLUSIVE AGREEMENT

This is not an exclusive agreement. Sylhan is free to engage with others to perform Services or provide Goods the same or similar to Seller’s.

21) COMPLIANCE

WITH General:
Seller shall comply fully with all applicable federal, state, and local laws, regulations, rules and ordinances applicable to performance of this Agreement, including without limitation, any fair labor standards or statutes and any statute or regulation regulating occupational safety and health, all applicable employment, tax, export control and environmental laws. Seller shall, following Sylhan reasonable request, certify such compliance to Sylhan in writing.

Hazardous Materials:
If Goods include hazardous materials, Seller represents and warrants that Seller understands the nature of any hazards associated with the manufacture, handling and transportation of such hazardous materials.

Customs:
Upon Sylhan’s request, Seller will promptly provide Sylhan with a statement of origin for all Goods and United States Customs documentation for Goods wholly or partially manufactured outside of the United States.

Counterfeit Materials Parts Components:
Sylhan has a responsibility to its customers and will not accept any materials, parts or goods that have been refurbished, remanufactured or in any way reproduced without the expressed authorization of the OEM.  If parts or goods have been found to be refurbished, remanufactured or in any way reproduced without the express authorization of the OEM these goods will be classified as “Counterfeit” and will be subjected to all guidelines prescribed by the Government Industry Data Exchange Program (GIDEP). Sylhan will not accept any counterfeit parts and all such parts found to be counterfeit will be returned for full credit and supplier shall bear any fees and expenses associated with supplying counterfeit parts.

22) REMEDIES

No remedy provided herein shall be deemed exclusive of any other remedy available at law or equity. All claims for monies due or to become due from Sylhan shall be subject to deduction by Sylhan for set off or counterclaim arising out of this or any other of Sylhan' s Purchase Orders to Seller.

23) GOVERNING LAW - U.S. Based Sellers

This Agreement shall be construed in accordance with, and disputes shall be governed by, the laws of the State of New York, excluding its conflict of law rules. The Superior Court of the County of Suffolk, New York or the United States District Court of the Suffolk County District of New York shall have jurisdiction and venue over all controversies arising out of, or relating to, this Agreement. The applicability of the UN Convention on Contract for the International Sale of Goods is hereby expressly waived by the parties and it shall not apply to the terms and conditions of this Agreement.

Photo Attribution

Photos included on the "Metals Page" provided by Heinrich Pniok.