Castelle Purchase Order Terms & Conditions

1. ACCEPTANCE OF TERMS AND CONDITIONS. THE FIRST TO OCCUR OF ANY OF THE FOLLOWING EVENTS WILL CONSTITUTE VENDOR’S CONCLUSIVE ACCEPTANCE OF THE PURCHASE ORDER AND THESE TERMS AND CONDITIONS:
   1. Vendor’s written acceptance;
   2. Vendor’s commencement of any work or services toward performance of the Purchase Order, or
   3. Vendor’s shipment or provision, in whole or in part, of any Products or Services ordered. Any acceptance by Vendor stating additional or different terms from those stated in the Purchase Order shall operate as an acceptance by Vendor, but the terms and conditions of the Purchase Order shall take precedence over any and all such additional or differing terms, which are deemed material alterations and, pursuant to California Commercial Code Section 2-207 as amended, Castelle hereby gives Vendor notice of Castelle’s objection to such additional or differing terms. No such differing or additional terms in Vendor’s acceptance shall be binding or effective unless Castelle expressly agrees to such different or added term in a writing signed by both parties.
2. DEFINITIONS. The terms herein shall have the following meanings:
   1. “Castelle” or “Buyer” means Castelle, a California Corporation.
   2. “Products” and “Services” means any products or services ordered from Vendor as indicated on the face of a Castelle Purchase Order.
   3. “Purchase Order” means an order from Castelle for Products or Services from the Vendor, all of which are issued under these terms and conditions and any additional terms and conditions included by Castelle on the face of a Purchase Order
   4. "Term and Conditions” means the terms and conditions in this document.
   5. “Vendor” or “Seller” means the party with whom Castelle has placed a Purchase Order.
3. PRICE. Vendor agrees to furnish the Products and/or Services called for by the Purchase Order at the price(s) stated in the Purchase Order. If Vendor decreases prices for any items to be furnished hereunder, the price of all unshipped items shall be adjusted to the lower prices. If the Purchase Order is placed on an open order basis, and in the absence of a subsequent agreement, then the price to Castelle shall not be higher than Vendor’s lowest prevailing price in effect on the date of the Purchase Order for the same or substantially similar Products or Services of comparable quality.
4. TAXES. Castelle will not be liable for any Federal, State, or Local taxes unless separately stated by Castelle on the face of the Purchase Order and billed as a separate item. No sales/use tax shall be added when an exemption has been provided to Vendor or is indicated on the face of the Purchase Order.
5. INVOICING, DISCOUNTS & PAYMENTS. Vendor will issue individual invoices for each shipment made under the Purchase Order. An acceptable invoice shall be in duplicate and shall include, without limitation, the Purchase Order number, and a description of the items, quantities and unit prices for all Products and/or Services delivered and being invoiced. Any applicable discount basis shall be computed from the latest of:
   1. the scheduled delivery date,
   2. the actual delivery date, or
   3. the date an acceptable invoice is received. Payment terms are generally thirty (30) days following receipt of an acceptable invoice, unless stated differently on the Purchase Order. However, Vendor will not assess any interest charges on payments due, whether or not payment is made before of after the anticipated payments schedule.
6. CHANGES/CANCELLATION.
   1. Castelle may at any time make changes in the delivery schedule, designs, quantities, specifications or place of delivery for Products and/or Services ordered hereunder. Castelle may cancel the Purchase Order in whole or in part at any time and for any reason upon written notice to Vendor and Vendor shall stop work immediately upon receipt of said notice.
   2. There shall be no charges for canceling orders for standard items.
   3. Any claim for cancellation charges for nonstandard items must be submitted to Castelle in writing within thirty (30) days after receipt of Castelle’s termination notice. In no event, shall any such claim for nonstandard items exceed the total price quoted for items canceled. Castelle reserves the right to inspect Vendor’s work in process and to audit all relevant documents prior to paying any portion of Vendor’s claim. Upon payment of Vendor’s claim, Castelle shall be entitled to all work and materials paid for.
7. DELIVERY AND RISK OF LOSS. TIME IS OF THE ESSENCE. Delivery shall be strictly in accordance with the schedule set forth in the Purchase Order and any anticipated or actual delays in shipment shall be reported immediately by Vendor to Castelle. Delivery in advance of the schedule set forth in the Purchase Order need not be accepted by Castelle, but if accepted, Castelle reserves the right to defer inspection and/or payment according to the original schedule. Unless otherwise specified in a Purchase Order, all shipments shall be FCA (Free Carrier) Castelle’s named place, within the meaning of INCOTERMS 2000. Export clearance shall be the responsibility of Vendor, and freight and duties shall be the responsibility of Castelle. Title and risk of loss shall pass to Castelle when Products are handed off, cleared for export, to Castelle’s designated carrier at Castelle’s named place, provided however, that the risk of loss shall remain with Vendor as to any Products which are not accepted by Castelle or which are rejected by Castelle.
8. COMPONENT PROVISION AND COMPLIANCE. In the event that Castelle seeks to acquire components through the Vendor (“Components”), the Vendor shall follow and comply with the following process:
   1. a) Production Purchases: Castelle will:
      1. reference its internal part number on the Purchase Order for a given production purchase, and
      2. specify acceptable manufacturer part numbers for components Castelle wishes to purchase, from Castelle’s approved vendor list (“AVL”).
   2. Non-production Purchases: Castelle will specify within the Purchase Order the specific part description, and manufacturer part number for a given component.
   3. Specification. A Specification will generally be provided by Castelle. Components provided and quoted must comply with the Specification.
   4. Quotations. Upon receiving the necessary information, the Vendor will, if it has the necessary expertise and knowledge and wishes to provide a quotation, provide a written quotation to Castelle. The quotation shall
      1. call out the part number it is quoting on
      2. state the manufacturer it will be acquiring the part from, and
      3. state and warrant that the Component for which the quotation is provided will meet Castelle’s specifications, and any regulatory approval requirements, and
      4. warrant that Vendor has the necessary level of knowledge and qualification to produce or source the sought component.
   5. Selection and Provision. Purchase Orders are awarded based upon the written quotations. If Vendor is selected, it shall provide Components which comply with its quotation, Castelle’s Specifications and meet regulatory requirements.
9. PACKING, SHIPMENT, SERVICES. All Products shall be suitably prepared and packed for shipment according to Castelle’s instructions and in a manner which follows good commercial practice, is acceptable to common carriers for shipment at the lowest rate, and is adequate to insure safe arrival. Vendor shall mark all containers with necessary lifting, handling and shipping information, Castelle’s Purchase Order number, date of shipment and the names of Castelle and Vendor. A packing list shall accompany each package or shipment. In the absence of a packing list, Castelle’s count of the number of units in the shipment shall be conclusive. All Services shall be performed to high industry standards by knowledgeable personnel skilled in the field.
10. ACCEPTANCE Payment for items and Services ordered hereunder shall not constitute acceptance. All items and Services are subject to Castelle’s inspection and test before final acceptance at Castelle’s premises. No item or Service shall be deemed accepted by Castelle until Castelle has given written notice of such acceptance to Vendor. If any inspection or test is made on Vendor’s premises, Vendor shall provide Castelle’s inspectors with reasonable facilities and assistance at no additional charge. In the event of rejection of Products or Services, Castelle will have the right, at its sole option, to
    1. return the Products for prompt refund of previous payments, if any,
    2. return the Products for prompt replacement with conforming Products,
    3. hold the Products for prompt correction by Vendor at Castelle’s plant,
    4. accept the Products subject to an equitable adjustment in price, or
    5. notify Vendor of nonconforming Products or Services and receive a full refund therefore. Rejected Products returned to Vendor will be returned at Vendor’s risk and expense. All corrective work will be performed at Vendor’s expense. If Vendor fails to promptly refund prior payments or to promptly replace or correct rejected Products or Services in accordance with Castelle’s instructions, Castelle will have the right to cancel the Purchase Order for breach, and, in addition to any other remedies available at law, obtain replacement Products or Services (cover) from another vendor at Vendor’s expense.
11. WARRANTIES Vendor warrants that all Products provided hereunder shall be merchantable, free from defects in workmanship and materials, and shall strictly conform to the applicable drawings and specifications for the Products. Vendor further warrants that all Services performed under the Purchase Order shall be free from defects in workmanship, shall comply with all warranties and shall be performed in accordance with the highest prevailing performance standards. At Castelle’s option, Vendor shall promptly repair, correct, replace or refund the purchase price and cost of shipment to Castelle of all defective or otherwise unacceptable Products and/or Services. Castelle shall have no liability for any returned Products and Vendor shall bear all liability, responsibility and expenses for them.
12. INDEMNITY AND INSURANCE. Vendor shall defend, indemnify and hold harmless Castelle and Castelle’s customers against any and all costs, expenses, losses, damages or liabilities (including attorneys’ fees) arising in connection with any actual or alleged
    1. personal injury or property damage caused by or arising out of the Services or use of the Products or Services,
    2. manufacturing defect in the Products,
    3. failure of the Products or Services to comply with Castelle’s specifications, and/or
    4. infringement of any patent, copyright, trade secret, trademark or other intellectual property right arising out of the use or sale by Castelle or use by Castelle’s customers of any Products or Services furnished hereunder. Castelle shall notify Vendor of any such claim or demand and Vendor shall defend any suits based thereon. If an injunction issues as a result of any such claim, Vendor agrees, at its expense, to either at Castelle’s option:
       1. procure for Castelle the right to continue using Products or Services ordered thereunder;
       2. replace such Products with non-infringing items;
       3. modify the Products so they become non-infringing;
       4. reperform the Services, or
       5. at Castelle’s option, refund to Castelle the amount paid for the Products or Services. Vendor shall have no liability to the extent that the claim or liability arises by reason of any equipment or materials furnished by Castelle to Vendor or to the extent that the claim or liability is a direct result of the Products having been manufactured pursuant to Castelle’s design or specifications. Company shall secure and maintain, at its own expense, throughout the entire term of this Agreement, the following insurance coverages:
          1. Worker’s Compensation/Employers’ Liability insurance which shall fully comply with the statutory requirements of all applicable state and federal laws and Employers’ Liability Insurance which limit shall be at least $500,000 per accident for Bodily Injury and $500,000 per employee/aggregate for disease; and
          2. Commercial General Liability. Commercial General Liability Insurance with a minimum combined single limit of liability of $1,000,000 per occurrence and $2,000,000 aggregate for bodily injury and/or death and/or property damage and/or personal injury. This shall include products/completed operations coverage, and shall also include Broad Form Contractual coverage specifically covering this Agreement.
13. CONFIDENTIALITY/USE OF NAME.
    1. In the course of Vendor’s performance under the Purchase Order, Vendor may have access to, either orally, in writing or by observation, certain valuable information of a confidential nature relating to Castelle or its business including, without limitation, information relating to Castelle’s products, technology, services, research and development, and engineering processes, computer software, inventions, intellectual property, business plans, finances, customers (and their information) and employees (the “Confidential Information”). Vendor agrees:
       1. that Castelle retains all right, title and interest in the Confidential Information,
       2. to maintain the Confidential Information in confidence,
       3. not use the Confidential Information except in accordance with the provisions of the Purchase Order, and
       4. not to disclose any Confidential Information to any third party without Castelle’s prior written consent. Vendor may disclose the Confidential Information to its employees with a need to know such information in order for Vendor to perform its obligations under a Purchase Order, provided such employees have agreed in writing, either as a condition of employment or to receive the Confidential Information, to be bound by terms and conditions substantially similar to and at least as protective as those in this provision with respect to the Confidential Information. Vendor further agrees to treat the Confidential Information in the same manner as Vendor treats its own confidential information of a similar nature, but in no event exercising less than reasonable care. The Confidential Information shall remain the sole property of Castelle or its licensors. Vendor will, on Castelle’s request or upon completion of the Purchase Order, promptly return or certify the destruction of all Confidential Information provided to Vendor.
    2. Unless otherwise specifically agreed to in writing by Castelle, all information, heretofore or hereafter disclosed by Vendor to Castelle in connection with the Purchase Order shall not be deemed to be Confidential Information.
    3. Vendor may not use Castelle’s name in disclosures to the public or advertisements of any kind, nor shall Vendor disclose the existence or content of the Purchase Order, without Castelle’s prior written consent.
14. DISCLAIMER OF CONSEQUENTIAL DAMAGES. CASTELLE SHALL NOT BE LIABLE TO SELLER OR ANY THIRD PARTY FOR ANY LOST PROFITS, CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, REVENUE OR PROFIT, INTERRUPTION OF BUSINESS OR CLAIMS AGAINST EITHER PARTY OR ITS CUSTOMERS BY ANY THIRD PARTY, WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY, EVEN IF CASTELLE IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
15. LIMITATION OF LIABILITY. IN NO EVENT WILL CASTELLE’S TOTAL LIABILITY UNDER THIS AGREEMENT FOR ALL CLAIMS BY SELLER OR ANY THIRD PARTY OF WHATEVER NATURE EXCEED MONIES RECEIVED BY SELLER FROM CASTELLE PURSUANT TO THIS AGREEMENT DURING THE SIX MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO LIABILITY. THIS LIMITATION IS CUMULATIVE FOR ALL CLAIMS HOWSOEVER ARISING, AND THIS LIMITATION SHALL APPLY EVEN IF THE REMEDIES PROVIDED IN THIS AGREEMENT SHALL FAIL OF THEIR ESSENTIAL PURPOSE.
16. FORCE MAJEURE. Neither party shall be responsible for its failure to perform due to causes beyond its reasonable control such as acts of God, fire, earthquakes, theft, war, riot, embargoes or acts of civil or military authorities. If delivery is to be delayed by such contingencies, Vendor shall immediately notify Castelle in writing and Castelle may either:
    1. extend Vendor’s time of performance; or
    2. terminate the uncompleted portion of the order at no cost to Castelle.
17. ASSIGNMENT. Vendor shall not delegate any duties nor assign any rights under the Purchase Order without the prior written consent of Castelle, and any attempted delegation or assignment lacking such consent shall be void.
18. SETOFF. All claims for monies due or to become due from Castelle hereunder shall be subject to deduction by Castelle for any set off or counterclaim arising out of this or any other of Castelle’s transactions with Vendor.
19. GOVERNMENTAL COMPLIANCE.
    1. Vendor will comply with all federal, state and local laws and regulations applicable to the performance of its obligations hereunder including, (to the extent applicable and without limitation) the Fair Labor Standard Act of 1938, as amended, the United States Foreign Corrupt Practices Act, U.S. Import and Export Regulations, the Williams Steiger Occupational Safety and Health Act as amended, and the Equal Employment Opportunity clauses prescribed by Executive Orders 11246, 11375, 11625, 11701 and 11758 regarding nondiscrimination because of race, creed, color, sex, age, national origin, physical or mental handicap, or veteran status.
    2. If the Products ordered are purchased for incorporation into products sold under a United States Government contract or subcontract, Vendor represents and Castelle acknowledges that such Products are “commercial items” as defined at 48 C.F.R. § 2.101, and the Federal Acquisition Regulation clauses required to be inserted into subcontracts for commercial items shall be deemed to apply to this order.
20. GENERAL PROVISIONS.
    1. INSOLVENCY. In the event of any proceedings, voluntary or involuntary, in bankruptcy or insolvency, by or against Vendor, including any proceedings under the applicable federal and state bankruptcy law currently in effect, or in the event of the appointment with or without the Vendor’s consent, of an assignee for the benefit of creditors or of a receiver, Castelle may, at Castelle’s option, cancel any unfilled part of this order without any liability whatsoever.
    2. REMEDIES. The rights and remedies stated herein shall be cumulative and in addition to any other rights and remedies provided by law or equity or those provided under the Uniform Commercial Code.
    3. DISPUTES. In the event of any disputes raised by Vendor associated with or arising under any Purchase Order, the Vendor shall first attempt to resolve such disputes through discussions between the executives of the companies. If such discussions are not productive after fifteen days, the Vendor may seek mediation or arbitration through JAMS/Endispute in Santa Clara County, California. This dispute resolution process shall be the exclusive process sought by the Vendor for disputes raised by the Vendor, and shall be pursued by Vendor in lieu of and instead of legal recourse sought through the courts.
    4. APPLICABLE LAW. Purchase Orders are to be construed, interpreted, enforced and performed according to the laws of the State of California, without regard to that body of law governing conflict of laws. The United Nations Convention on the International Sale of Products shall not apply to the Purchase Order. The parties hereby agree to the personal jurisdiction of the state and federal courts located in Santa Clara County, California, and Vendor waives any right to seek a change of venue to any other court.
    5. WAIVER; SEVERABILITY; SURVIVAL. The waiver by either party of a breach of any provision contained herein shall not be effective unless in writing signed on behalf of the party against whom the waiver is asserted. Any waiver shall in no way be construed as a waiver of any succeeding breach of such provision or the waiver of the provision itself. If any provision of these Terms and Conditions or the Purchase Order are held to be invalid, illegal, or unenforceable, then to the extent permitted by law, the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby. The provisions of Sections 1 (“Acceptance of Terms and Conditions”), 4 (“Taxes”), 10 (“Warranties”), 11 (“Indemnity and Insurance”), 12 (“Confidentiality; Use of Name”) 13 (“Disclaimer of Consequential Damages”), 14 (“Limitation of Liability”), 17 (“Setoff”) and 19 (“General Provisions”) shall survive expiration and any termination of the Purchase Order.
    6. LANGUAGE. All correspondence pertaining to the Purchase Order or any of its terms and conditions shall be in the English Language.
    7. ENTIRE AGREEMENT. These Terms and Conditions, together with the Purchase Order (including all attachments), constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. No modification, alteration or amendment shall be effective unless in writing and duly signed by both parties.