1. General. The Purchase Order (“Order”) and these terms and conditions contain the entire agreement between the supplier (“Supplier”) and Revision Military Ltd. (“Revision”) regarding the purchase and sale of the products covered by the Order (“Products”).
2. Price and Payment. (a) The Order shall be fulfilled at the prices provided, unless Supplier decreases prices for any items to be furnished hereunder prior to fulfilling the Order, in which case, the price of all unshipped items shall be adjusted to the lower prices; (b) Supplier shall issue to Revision a separate invoice for each Order, bearing the Revision Order number. Supplier shall invoice no earlier than the day of shipment. Payment terms are as stipulated. In the absence of payment terms hereof, Revision shall pay all invoices in full within sixty (60) calendar days of the date on which Revision receives all goods or services covered by the Order (or, if delivery is staggered, the last of the goods or services covered by the Order) and an invoice consistent with the terms of the Order. If payment is made within ten (10) days of Revision’s receipt of such goods or services and invoice, Supplier agrees that Revision may deduct two percent (2%) from the amount due as a prompt payment discount. Unless shipping and other charges are itemized, any discount will be taken on the full amount of invoices. Supplier shall issue credit within three (3) business days after the parties agree, upon a shortage or rejection of goods. Supplier shall issue a revised invoice to Revision that clearly shows all credits applied. Supplier is entitled to request that Revision return samples of nonconforming goods, at Supplier’s expense, during discussions related to the rejection of goods; and (c) Unless otherwise provided herein, prices shown on the Order are inclusive of all taxes with respect to the sale of Products to Revision. Revision shall not be liable for any tax unless the amount of such tax is separately stated in the written acknowledgment of the Order required by Paragraph 1 hereof. Supplier shall not add any taxes to the price of Products which Revision is entitled to purchase on an exempt basis, provided that Revision provides Supplier with such exemption certificates or similar documents as required by law to effect exempt purchases. Supplier will provide Revision with such documentation as Revision requires in order to claim tax credits, refunds, rebates or similar relief for taxes charged to Revision.
3. Delivery and Shipping. (a) A delivery schedule is specified in the Order. In the event that the specified delivery schedule is judged by Supplier to be unreasonable, Supplier may reject the Order by delivering written notice of its rejection to Revision within three (3) business days after Supplier’s receipt of such Order; provided, however, that Supplier shall work with Revision in good faith to mutually agree upon a reasonable delivery schedule. Any Order not rejected in accordance with the foregoing sentence shall be deemed accepted by Supplier; and (b) Supplier shall use a carrier that has been designated by Revision to ship the Products. The Products are to be suitably packed or otherwise prepared by Supplier for shipment so as to secure the lowest transportation rates and to meet the carrier’s requirements. No charges will be allowed for such packing or preparation unless otherwise stated on the Order. Supplier shall deliver or arrange for the delivery of the Products as per Revision’s instructions to Revision at 7 Corporate Drive, Essex Junction, VT 05452, or to such other address as shall be specified by Revision in the Order.
Delivery terms are
Domestic Suppliers - FOB Origin
International Suppliers - Exworks
The shipping Terms and Conditions are as above, unless otherwise specified by Revision.
4. Title and Risk of Loss. Title and risk of loss to the Products shall pass to Revision once the Products have been delivered to Revision in accordance with the terms hereof, except if the Products are rejected by Revision under the Order.
5. Acceptance. (a) All Products shall be subject to final inspection and acceptance by Revision; (b) If Revision determines that any Products are defective or do not meet specifications (either before acceptance or under the terms of paragraph 5 hereof), Revision shall have the right, at its sole option, to (i) reject such Products and obtain a full refund of the purchase price and any shipping charges, or (ii) require repair or replacement of the Products by and at the Supplier’s expense and risk. If Supplier fails to repair or replace defective Products within sixty (60) days after Revision’s request thereof, Revision may, at its sole option (A) without further notice, terminate the Order for default in accordance with Paragraph 6 hereof, or (B) require an appropriate reduction in the purchase price; and (c) Payment for any Products hereunder shall not be deemed acceptance thereof. Failure to inspect the Products shall not be deemed to constitute (i) acceptance of any defective or nonconforming Products, or (ii) a waiver of Revision’s rights or remedies arising by virtue of any defect or nonconformity with the requirements of the Order.
6. Cancellation for Default. (a) The Order may be terminated by Revision at any time if Supplier breaches any material obligation provided hereunder, and Supplier fails to cure such breach within fifteen (15) days of receipt of a written notice of such breach; (b) If Supplier, at any time, determines that it will be or will likely be unable to fulfill the Order for any reason, Supplier shall immediately notify Revision in writing identifying the new delivery date and reason for its inability to meet agreed upon delivery date(s). In the event the proposed delivery date is unacceptable to Revision, in its discretion, Revision may cancel the Order without penalty or charge.
7. Cancellation Without Cause. Revision may, without liability, by written notice to Supplier, no more than ten (10) days after the date of the Order, cancel the whole or any part of the Order. Where notice of cancellation is given more than ten (10) days after the date of the Order, Revision agrees to pay Supplier all verified, reasonable, non-recoverable out-of-pocket costs for unique raw materials and works in process incurred by Supplier for the Products under the cancelled Order, but only to the extent that: (a) such raw materials are unique to Revision and works in process cannot be reasonably used by Supplier in fulfilling subsequent Revision Orders; and (b) Supplier is not in default of its obligations under the Order. Notwithstanding the foregoing, if Revision cancels an Order, in no event shall the amount payable to Supplier under this Paragraph 7 exceed 50% of the total amount listed on the relevant Order.
8. Warranty. Supplier warrants that all Products delivered pursuant to the Order shall: (a) be free from defects in material and workmanship, and (b) conform to the specifications of applicable samples or other descriptions furnished or adopted by Supplier or requirements furnished by Revision. To the extent the Products are not manufactured pursuant to designs and specifications furnished by Revision, Supplier warrants that the Products shall be free from design and specification defects. The foregoing warranties are in addition to all other express warranties given by Supplier to Revision or imposed by law, which are hereby adopted by and incorporated into the Order. All warranties of Supplier shall run to Revision, its successors and assigns or their affiliates and customers.
9. Indemnity. Supplier shall, at its own expense, indemnify, defend and hold harmless Revision, its affiliates, directors, officers, employees, representatives and customers from any and all losses or damages (including, without limitation, attorneys’ fees) with respect to any action, claim or proceeding: (a) in connection with Supplier’s breach of the terms and conditions of the Order; (B) charges of infringement of any patent, trademark, copyright or other proprietary right or intellectual property right of any third party by reason of the sale or use of any Products; or (c) to recover for personal injury or death, property damage or economic loss caused by any Products (regardless of whether such claim or demand arises under tort, negligence, contract, warranty, strict liability or any other legal theories), except to the extent such injury, damage or loss directly results from adherence to Revision’s specifications. Supplier’s obligations under this Paragraph 9 shall survive any termination of the Order.
10. Confidentiality. Supplier will: (a) keep all Revision Information (as defined below) confidential and disclose it only to its employees who need to know such Revision Information in order for Supplier to supply the Products to Revision under the Order; and (b) use Revision Information solely for the purpose of supplying the Products to Revision. Products manufactured based on Revision Information may not be used for Supplier’s own use nor sold by Supplier to third parties without Revision’s express prior written consent. “Revision Information” means all information provided to Supplier by Revision, its successors, affiliates or their representatives in connection with the business, programs, goods and/or ancillary services covered by the Order, including, without limitation, proprietary or confidential information, pricing and other terms of the Order, specifications, formulas, compositions, designs, photographs, samples, prototypes or manufacturing methods. Revision Information also includes any materials or information that contain, or are based on, any Revision Information, whether prepared by Revision, Supplier or any other person, and includes all items labeled “confidential” or “proprietary” or which Supplier should reasonably understand include confidential or proprietary content. In the case of uncertainty as to whether certain information constitutes confidential or proprietary Revision Information, Supplier shall assume that it does unless or until Supplier contacts Revision and receives written confirmation from Revision that such information is not Revision Information. Revision Information (or any portion thereof) will not be made accessible to third parties by or through Supplier without Revision’s prior written consent. Revision Information will be returned or destroyed by Supplier promptly upon request.
11. Intellectual Property. (a) Nothing in the Order will constitute nor be construed by Supplier as a grant of an express or implied license or any other right to use, for any purpose, patents, trademarks, copyrights or other intellectual property of Revision, its affiliates or its customers except as required in order for Supplier to perform its obligations hereunder. Supplier will not, with respect to any specifications or intellectual property delivered, directly or indirectly by Revision, its successors, affiliates, or their customers, under the Order, apply or submit to the U.S. Patent and Trademark Office or any other national or international patent or trademark office, for any intellectual property right protection; and (b) Revision, its successors, assigns, affiliates and/or their licensors retain full ownership of all specifications, designs, calculations, pictures, drawings, plans, test results, samples and other Revision Information furnished to Supplier by or on behalf of Revision in connection with the negotiation or the performance of the Order.
12. Miscellaneous. (a) Supplier may not assign the Order or any interest or right herein voluntarily or by operation of law without Revision’s prior written consent. Revision may assign its rights, interest, and obligations under the Order to a successor, assign or affiliate without the consent of Supplier; (b) The validity, performance, and construction of the Order shall be governed by and construed in accordance with the laws of the State of Vermont without regard to its conflict of laws provisions that would require the application of any other law. The parties agree not to apply the United Nations Convention on Contracts for the International Sale of Goods to this Agreement; (c) Any dispute arising out of or in any way relating to the Order or the Products shall be resolved in the state or federal courts located in Burlington, Vermont, and each party hereby consents to such venue and submits to the personal jurisdiction of the aforementioned courts and agrees that the service of a summons, process or other paper in connection with such proceedings may be made by giving notice as provided in the Order. In the event that Revision is the successful party on any claim by it, counterclaim by it, or defense by it in any action or proceeding brought by or against it with respect to the Supplier, the Supplier agrees to pay, in addition to all other sums which may be due, Revisions’ reasonable attorneys’ fees, costs and disbursements attributable to such claim, counterclaim or defense, both at the trial and any appellate level; (d) The rights and remedies of Revision 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; (e) The Order may not be amended, waived or discharged except by an instrument in writing executed by the party against whom such amendment, waiver or discharge is to be enforced. Revision objects to and shall not be bound by any additional or different terms, whether printed or otherwise, in any purchase order or other communication from Supplier to Revision, unless specifically agreed to in a writing signed by both parties and only with respect to those Products intended to be covered by that executed document. Any preprinted terms and conditions, commonly known as “boilerplate” text, from documents exchanged by the parties during the normal course of business shall be void and of no force or effect, provided, however, that the terms and conditions contained herein shall not be considered boilerplate; (f) The failure of either party to enforce any rights resulting from breach of any provisions of the Order by the other party shall not be deemed a waiver of any rights relating to a subsequent breach of such provision or of any other right hereunder; (g) If any part of the Order is found invalid or unenforceable, the remainder of the provisions of the Order shall continue in full force and effect as if the Order had been executed with the invalid portion thereof eliminated; (h) All notices or other communication to be given under the Order must be in writing (by delivery by hand, mail, email or fax) and will be deemed given when (1) delivered personally, (2) sent by confirmed email or facsimile, (3) received by commercial overnight courier with written verification of receipt, or (4) sent by registered or certified mail, return receipt requested, postage prepaid;(i) Supplier will comply with all laws and regulations applicable to the performance of its obligations hereunder, including applicable export control laws and applicable procurement rules and regulations, and Supplier will defend and hold Revision harmless from loss, costs or damage, including attorneys’ fees resulting from any actual or alleged violation of the same; (j) The parties hereby agree that the Order be drawn up in the English language only; and (k) The Order may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which taken together shall constitute one and the same instrument.