Purchase order terms, conditions, warranties and specifications

Acknowledgement of Receipt of Purchase Order. Order acknowledgement must be executed by Seller and returned to Buyer immediately upon receipt of order. This Purchase Order does not constitute a contract unless this condition is complied with.

  1. General: (a) This Purchase Order is placed subject only to the Terms and Conditions included in this Purchase Order and to the terms of any master supply agreement or quality agreement in place between Buyer and Seller. Reference to any Seller's proposal is only for the purpose of specifying price, the nature and description of the item or items, the terms of payment, and time of delivery and then only as such terms are consistent with the terms and conditions herein;

    (b) Any acknowledgement which contains Terms and Conditions which are in addition to or are inconsistent with these Terms and Conditions will be considered a counter offer and will not be binding unless agreed to in writing by the Buyer; and

    (c) Performance by the Seller in absence of Buyer acceptance of the counter offer will constitute Seller's acceptance of these Purchase Order Terms and Conditions.
  2. Assignment: Seller may not assign this Purchase Order without the prior written consent of Buyer. Claims for monies due or to become due under this Purchase Order may be assigned by Seller provided that Seller shall supply Buyer promptly with two copies of any such assignment. Payment to an assignee of any such claim shall be subject to setoff or recoupment for any present or future claim or claims which Buyer may have against Seller and provision setting forth this right of the Buyer shall be included in each assignment of a claim for monies due or to become due. Buyer reserves the right to make direct settlements and/or adjustments in price with Seller under the terms of this order, notwithstanding any assignment of claims for monies due or to become due hereunder and without notice to the assignee.
  3. Subcontracts: Except for articles proprietary to Seller, no subcontracts hereunder shall be made by the Seller herein with any other party for furnishing any of the completed or substantially completed articles, spare parts or work herein contracted for, without the prior written consent of the Buyer and Buyer's approval as a source.
  4. Buyer Furnished Material, Tooling, and Test Equipment & Related Insurance: Any material, tooling, or test equipment furnished to Seller from Buyer without cost to Seller will be deemed bailed to the Seller for mutual benefit. Title to any such furnished material, tooling, or test equipment shall at all times remain with the Buyer. Seller agrees to pay for such material, tooling, or test equipment spoiled by it or not otherwise satisfactorily accounted for. Seller agrees to procure a policy or policies of insurance in form satisfactory to the Buyer, insuring all property on Seller's premises owned by Buyer against loss or damage resulting from fire (including extended coverage), malicious mischief, and vandalism.
  5. Packaging and Shipping: All articles are to be suitably packed or otherwise prepared for shipment so as to secure safe delivery, the lowest transportation rates, and to meet carriers' requirements. When possible, Seller will combine shipments with other orders to make the minimum LTL or truckload shipments, if doing so will not delay shipment. No charges will be allowed for packing, crating, or carriage unless stated in the Purchase Order. Each container must be marked to show Buyer's Purchase Order number, and a packaging sheet showing Purchase Order number must be included in each package or single unit of LTL shipment or with each truckload shipment.
  6. Invoices: Individual invoices must be issued for each shipment applying against this order. Freight and other charges must be shown if discount is not to be taken on full amount of invoice. Delays in receiving invoices, invoices on material shipped ahead of specified schedule, and errors and omissions on the invoice will be considered just cause for withholding settlement payment without losing any discount privilege. Discount privilege will apply from the date of scheduled delivery, the receipt of goods, or the date of invoice, whichever is later.
  7. Inspection and Rejections: All articles ordered will be subject to final inspection and approval by Buyer after delivery, notwithstanding prior payment, it being expressly agreed that payment shall not constitute final acceptance. The Buyer, at his discretion, may employ either 100% inspection or an approved sample plan. Lots which fail to pass such sampling plans may be 100% inspected by Buyer and Seller charged for inspection time or at Buyer's option, returned to Seller for sorting, correction, replacement, or credit, as Buyer elects. Buyer or at Buyer's option, returned to Seller for sorting, correction, replacement, or credit, as Buyer elects. Buyer may reject any article which contains defective material or workmanship or does not conform to specifications or samples. Rejected articles may be returned at Seller's risk and expense at the full invoice price plus all applicable transportation charges. No replacement of defective material shall be made unless specified by Buyer.
  8. Changes: Buyer may at any time by written Change Order to this Purchase Order make changes in drawings, designs, specifications, quantity of material or services ordered, or delivery dates. If the cost of or time required for furnishing the items ordered changes as a result of the Change Order, an equitable adjustment in the order price and/or delivery schedule will be made by issuance of a written Change Order to this Purchase Order. If the price or delivery adjustment is not included in the Change Order making the change, no increase in price or delivery will be allowed unless Seller notifies Buyer in writing, within 30 days from the date of the Change Order, of its claim for an increase in price or change in delivery schedule. No revisions to the delivery schedule, prices, quantities, specifications, or other objectives of this Purchase Order will be effective unless agreed to by written Change Order to this Purchase Order signed by Buyer.
  9. Part/Process Change: Seller will not make any changes to parts supplied to Buyer under this Purchase Order or the processes used to make such parts without written approval from Buyer. The acceptance criteria for a planned change shall be agreed upon before any change is implemented. If Buyer and Seller have executed a Quality Agreement between them, the change-control provisions of that Quality Agreement will govern any change process.
  10. Delivery: Except as hereinafter specified, delivery shall be strictly in accordance with the delivery schedule set out, or referred to, in this Purchase Order. If Seller’s deliveries fail to meet the delivery schedule, Buyer may reject the delivery per the Termination clause in this Purchase Order.
  11. Warranties: Seller expressly warrants that all articles, assemblies, materials, or products supplied under this Purchase Order: (a) will be manufactured in accordance with specifications, this Purchase Order, and Buyer’s instructions and directions; (b) will be free from defects in design, manufacture, materials (excludes consigned materials) and workmanship; (c) will be in merchantable condition and fit for the intended purpose; (d) do not infringe the intellectual rights, including but not limited to the patent rights, of any third party; (e) meet and will continue to meet all applicable laws, rules, and regulatory standards, including but not limited to FDA and other applicable requirements, and have been granted and will maintain all appropriate certifications illustrating compliance with those standards; and (f) will operate in accordance with any specifications. Seller further expressly warrants that all work and all services performed under this Purchase Order will be free from defects in workmanship. These warranties are in addition to all other warranties implied by law and will survive termination of this Purchase Order and Starkey’s inspection, delivery, or acceptance of and payment for any purchases made under this Purchase Order. The warranties in this section will: (i) run to Buyer, its affiliates, successors, and assigns, its customers, and to the users of Buyer’s products and services, and (ii) be valid for the consumer warranty period of the Seller product containing the produces purchased under this Purchase Order. Supplier also warrants that Supplier has no third-party obligations that will conflict in any way with Supplier’s obligations under this Agreement. All warranties shall be construed as conditions as well as warranties and shall not be deemed to be exclusive. Articles ordered to Government specifications shall comply with such specifications as are current at the date of this Purchase Order unless otherwise particularly specified by the Buyer and fit and sufficient for the purposes intended.
  12. Patent Indemnity: To the extent the subject articles are not manufactured pursuant to design originated by Buyer, Seller agrees it will save Buyer and its agents or customers harmless from any loss, damage, or liability which may be incurred on account of infringement of patent rights with respect to such articles or materials and that it will, at its own expense, defend any action, suit, or claim in which such infringement is alleged with respect to the sale or use of the articles or materials delivered under this Purchase Order, provided Seller is duly notified as to suits against Buyer or Buyer’s customers. Seller’s indemnity as to use shall not apply to any infringement arising from use in combination with other items where such infringement would not have occurred from the normal use for which the article was designed.
  13. Termination: (a) Buyer reserves the right to terminate this order, or any part, and to cancel all or any part of the undelivered portion of this Purchase Order if Seller does not make deliveries as provided in this contract, or, if Seller breaches any of the terms hereof, including the warranty of Seller. Buyer shall have the right to terminate this Purchase Order or any part thereof, and cancel all or any part of the undelivered portion of this Purchase Order in the event of the happening of any of the following: Insolvency of Seller, filing of a voluntary petition in bankruptcy, filing of an involuntary petition to have Seller declared bankrupt, provided it is now vacated within thirty days from the date of such appointments; the execution by Seller of assignment for the benefit of creditors. Buyer, under the terms of this clause, has no obligations to Seller in respect to the canceled portion of this Purchase Order and Buyer's liability shall be limited to payment for the delivered portion of this Purchase Order at the rate specified on the face hereof. If, as a result of default of performance by the Seller, this contract is terminated in whole or in part and it is necessary to procure this material or services elsewhere, the defaulting Seller will be liable for any re-procurement charges which exceed the amount which would have been due the Seller if the Seller had satisfactorily completed this order.

    (b) Buyer may terminate work under this Purchase Order, in whole or in part, at any time by notice to Seller in writing. Seller will thereupon immediately stop work on this Purchase Order, or the terminated portion thereof, and notify its subcontractors to do likewise. Except where such termination is caused by Seller’s. Seller shall also be entitled to a reasonable profit on the work done prior to such termination at a rate not exceeding the rate used in establishing the original purchase price. The total of such claim shall not exceed the canceled commitment value of this Purchase Order.

    (c) Termination claims shall be subject to inspection and audit by the Buyer in the event of cancellation under either of the above clauses.

    (d) The remedies provided in this section shall be cumulative and additional to any other or further remedies provided in law or in equity.
  14. Compliance with Applicable Laws: Seller agrees that, in the performance hereof, it will comply with all applicable laws, statutes, rules, regulations or orders of the United States Government, or any state or political subdivision thereof, and same shall be deemed incorporated herein by reference. The Seller also agrees that it is complying with Executive Order 10925 and 11114 (Equal Opportunity Act).
  15. Special Tools: Unless otherwise herein agreed, special dies, tools and patterns used in the manufacture of the articles herein ordered shall be furnished by and at the expense of Seller, shall be kept in good condition, and when necessary, shall be replaced by Seller without expense to Buyer.
  16. Engineering Information: Seller agrees that all designs, construction, arrangements, disclosures and devices shown or described in this Purchase Order and all drawings, specifications, and documents forming a part thereof by reference or otherwise are the property of Buyer and are submitted with the understanding and agreement by Seller that such designs, constructions, arrangements, disclosures and devices shall not be utilized in whole or in part by Seller either for Seller or on behalf of any other person, firm or corporation without written permission of Buyer.
  17. Product Methods, Manufacturing Processes, Drawings, Designs and Specifications: Any unpatented knowledge or information concerning Seller’s product, methods, or manufacturing processes which may or may not be contained in Seller's drawings, designs, or specifications that the Seller may develop, discover, or disclose to the Buyer incident to the manufacture of material or work covered by this Purchase Order will be deemed to have been disclosed as part of the consideration for the Purchase Order and the Buyer shall have full right to its use and the Seller agrees not to assert any claim against the Buyer for use or alleged use of it.
  18. Advertising: Seller shall not, without first obtaining the written consent of Buyer, in any manner advertise or publish the fact that Seller has furnished or contracted to furnish to Buyer the articles herein mentioned.
  19. Patent Rights: Where payment is made for experimental, development, or research work as such, to be performed in accordance with special requirements of the Buyer, Seller agrees to disclose and on request, to assign to Buyer each invention property right, confidential process or know-how, and trade secret resulting therefrom. All proprietary rights embodied in designs, tools, patterns, drawings, information and equipment supplied by Buyer under this Purchase Order are reserved and their use is restricted to the work to be performed hereunder.
  20. Fair Labor Standards Act: By acknowledgment of this Purchase Order Seller certifies that these goods will be produced in compliance with all applicable requirements of Sections 6, 7 and 12 of the Fair Labor Standards Act of 1938, as amended and of regulations and orders of the Administrator of the Wage and Hour Division issued under Section 14 thereof,
  21. Taxes: Buyer shall not be liable for any Federal, State or Local taxes or duties or tariffs unless separately stated and billed.
  22. This Purchase Order shall be governed by the laws of the State of Minnesota and constitutes the entire agreement between Buyer and Seller unless the parties have executed a master supply agreement or quality agreement. If the parties have executed a master supply agreement or quality agreement, the terms of those agreement supersede any terms of this Purchase Order that conflict with the terms of those superseding agreement, unless specifically agreed otherwise in this Purchase Order.
  23. Pursuant to Federal Government requirements, the Seller agrees that during the fulfillment of this order, insofar as such is required by applicable laws or regulations, the contract provisions set forth in 41 CFR 60-741.4 (a)-(f), 41 CFR 60-250.4 (a)-(M), 41 CFR 60.1.4A (1)-(7), shall be incorporated by reference in the Purchase Order.


If a Government Contract Number appears on the face hereof, Seller understands that articles covered by this Purchase Order relate to a prime contract with the U.S. Government or to a subcontract with a Government Prime Contractor and the following clauses apply. In event of inconsistency between other terms and conditions herein and any portion of this Clause, the latter shall govern and prevail.

Seller agrees that the items covered by this Purchase Order will be manufactured or furnished in compliance with all applicable provisions of all Federal laws as heretofore and hereafter amended, including but not restricted to the Fair Labor Standards Act, Walsh-Healey Act, Eight-Hour Law, Buy-American Act, Vinson-Trammel Act Royalty Adjustment Act, Espionage Act (and statutes relative thereto) and all applicable regulations, rulings and interpretations issued there under.

Further, Federal Acquisition Regulation (FAR) clause 52.219-9, Small Business Subcontracting Plan, as expressed on the date of Buyer's original contract under the Government Contract Number appearing on the face hereof are incorporated herein by reference and mutually agreed to by the parties hereto to be part of this order, whenever applicable, as fully as if set out in complete text.

The terms appearing in the FAR clauses are understood to substitute “Buyer and/or Government” wherever the term “Government” occurs and they shall be so construed as to show the proper relationship between the Seller, the Buyer, and the Government.

Copies of the relevant FAR clauses will be furnished upon request of the Seller.