PURCHASE ORDER TERMS AND CONDITIONS
1.) All parts must be in factory-sealed packaging, new and unused.
2.) SUPPLIER acknowledges that all orders are placed with the understanding that time is of the essence.
3.) Any late or short shipments are cause for cancellation by Serendipity Electronics, Inc. (“Serendipity”) without Serendipity incurring any additional costs or obligations.
4.) Suspect, Fraudulent, Unapproved, Suspect Unapproved or Counterfeit Goods.
Guarantee of Product Source(s)
- SUPPLIER shall ensure that only new and authentic products are delivered to Serendipity Electronics. SUPPLIER shall endeavor to first purchase parts directly from Original Component Manufacturers (OCMs), OCM Authorized (Franchised) Distributors, or authorized Aftermarket Manufacturers or from Suppliers who obtain such parts exclusively from the OCM or their Authorized Suppliers with OCM traceability. Supply of product that was not provided by these sources is not authorized unless first approved in writing by Serendipity Electronics.
- Authorized (Franchised) Distributor SUPPLIER covenants, warrants, and represents that it has effective contractual agreements in place with each manufacturer whose product(s) it is procuring to sell to Serendipity Electronics.
Authorized (Franchised) Distributor SUPPLIER shall:
- Only ship products to Serendipity Electronics that have been procured directly from the manufacturer.
- Not ship products to Serendipity Electronics that has been procured from any other source without prior written consent from Serendipity Electronics.
- Be considered an unapproved Independent Distributor for Products procured from other sources.
Failure to obtain Serendipity Electronics’ prior written approval constitutes a material breach under the terms of this agreement.
Authorized (Franchised) Distributor SUPPLIER will fully indemnify Serendipity Electronics from any and all claims, losses, and damages that result from said breach. Serendipity Electronics reserves the right to reject any and all requests for approval and require additional verification and testing of products.”
Supply Chain Traceability
SUPPLIER shall maintain a method of item traceability that ensures tracking
of the supply chain back to the manufacturer of all Electrical, Electronic, and Electromechanical (EEE) parts being delivered per this order. This traceability method shall clearly identify
the name and location of all supply chain intermediaries from the manufacturer
to the direct source of the product
for Serendipity Electronics and shall include the manufacturer’s batch
identification for the item(s) such
as date codes, lot codes, serializations, or other batch identifications. This
traceability requirement applies to new
purchases of material, material in inventory and material transferred from
SUPPLIER’S other business units. If this traceability
is unavailable or cannot be provided, Serendipity Electronics shall approve
this exception in writing at the time of purchase order.
Test and Inspection Requirements
SUPPLIER shall establish and implement test and inspection activities necessary to assure the verification of purchased product.
SUPPLIER shall document and provide upon request all available tests and inspections results which were performed to assess and mitigate the risk of distributing fraudulent/counterfeit parts. Accept/reject criteria and sampling criteria shall be clearly defined or approved by Serendipity Electronics.
Tests and inspections shall be performed by persons that have been trained in the product verification techniques that they perform and are formally trained based on demonstrated competency. SUPPLIER shall maintain records of training and methods used to demonstrate competency. Serendipity Electronics shall inquire as to SUPPLIER’S inspection qualifications prior to placing an order.
Certificate of Conformance (CoC)
SUPPLIER shall approve, retain, and provide copies of Electrical, Electronic, and Electromechanical (EEE) Manufacturer Certificates of Conformance (CoC) when available. In no case shall the manufacturer’s certificate be altered or show signs of alteration.
Manufacturer CoCs shall, at a minimum, include the following:
- Manufacturer name and address
- Manufacturer and/or Customer’s part number and dash number
- Batch identification for the item(s) such as date codes, lot codes, serializations, or other batch identifications
- Signature or stamp with title of <SUPPLIER’S> authorized personnel signing the certificate
Where manufacturer CoCs are not available, Serendipity Electronics shall require SUPPLIER to provide the following signed and dated CoC:
‘SUPPLIER hereby attests that the parts provided under this purchase order are unused, unaltered and authentic and have not been salvaged, reclaimed, otherwise used, or previously rejected for any reason. This statement is based on rigorous supplier selection practices, supplier assurance practices, and tests and inspections of the specific parts supplied that are designed to prevent the supply of fraudulent/counterfeit parts.’
“SUPPLIER’S” certificates shall state that the products have been handled in accordance with the requirements of this document and include as a minimum the following:
- Manufacturer’s name
- Part number and product assurance level
- Serendipity Electronics’ name and address
- Name and address of the Customer
- Quantity of the parts in the shipment
- Lot date code, as applicable
- Latest re-inspection date, if applicable
- Certification that the shipment is part of the shipment covered by the Manufacturer’s documentation
- Signature and date of transaction. An authorized signatory assigned by a corporate officer with responsibility for the product quality and reliability or their documented designee.’
SUPPLIER shall maintain copies of certificates with lot records until the lot is completely shipped. SUPPLIER shall maintain the product and shipment traceability for a minimum of five (5) years after the date of the last shipment from each lot.”
Quality Management System
SUPPLIER shall maintain a quality management system that complies with SAE International, AS9120 Quality Management Systems – Requirements for Aviation, Space and Defense Distributors, or ISO 9001, Quality Management System Requirements. Independent certification/registration is required unless specified by the Customer.
Suppliers that obtain certification/registration and subsequently change certification bodies (CBs), lose registration status, or are put on notice of losing registration status, shall notify Serendipity Electronics within three (3) days of receiving such notice from its CB.”
Product Impoundment and Financial Responsibility
- Fraudulent/counterfeit parts have no value. For example, any Limitation of Warranties provision contained in the Supplier’s Terms and Conditions will be declared null and void if it is later determined that fraudulent/counterfeit parts or suspect fraudulent/counterfeit parts were received by the Organization from the Supplier.
SUPPLIER and Serendipity Electronics hereby agree that fraudulent/counterfeit parts have no value and any contract documents establishing a transaction involving fraudulent/counterfeit parts shall be declared null and void.”
- Supplier has the right to agree with or verify the Organization’s findings.
SUPPLIER and Serendipity Electronics hereby agree that if the OCM determines the suspect parts are authentic, then the decision is “final” and SUPPLIER and Serendipity Electronics hereby agree that if Serendipity Electronics or a testing laboratory chosen by Serendipity Electronics determines that the electronic parts supplied are suspect/fraudulent/counterfeit, then SUPPLIER has the right to: (1) Agree with Serendipity Electronics’ findings and the transaction will be voided; or (2) Verify Serendipity Electronics’ findings by contracting with an Serendipity Electronics approved and SUPPLIER recognized test laboratory (hereafter referred to as “lab”) for further verification.”
- Organization’s burden of proof.
Since any dispute between Serendipity Electronics and SUPPLIER may be resolved in a civil proceeding whether in a court of law or in an arbitration, the appropriate burden of proof required for Serendipity Electronics to establish that the suspect parts are fraudulent/counterfeit shall be preponderance of the evidence, which means that
Serendipity Electronics
must establish that it is more likely than not that the suspect parts are
fraudulent/counterfeit unless Serendipity Electronics is trying to establish fraud, which would then raise Serendipity
Electronics’ burden of proof to a clear and convincing evidence
standard. However, if for whatever reason, the issue of the authenticity of the suspect
parts is raised during a criminal proceeding, then the burden of proof that the suspect parts are fraudulent/counterfeit shall be
that the suspect parts are fraudulent/counterfeit beyond a
reasonable doubt.”
- Product confiscation/destruction.
If SUPPLIER accepts Serendipity Electronics’ findings and chooses to immediately void the transaction, the suspect electronic parts will not be returned to SUPPLIER unless and/or until an independent lab agreed to by both SUPPLIER and Serendipity Electronics determines that the electronic parts are not suspect fraudulent/counterfeit or fraudulent/counterfeit. Under these circumstances, Serendipity Electronics shall retain possession of the suspect electronic parts for a time period at least as long as the applicable statute of limitations under the appropriate Authority(ies) Having Jurisdiction following the date upon which SUPPLIER received notification from Serendipity Electronics that it was choosing to immediately void the transaction between them. Once this period has expired, then Serendipity Electronics shall have the absolute right to destroy the suspect electronic parts. If SUPPLIER exercises its right to have an independent lab determine whether the suspect electronic parts are fraudulent/counterfeit and the lab verifies the findings that the subject electronic parts are either suspect fraudulent/counterfeit or fraudulent/counterfeit, then SUPPLIER must issue an immediate refund of all monies paid by Serendipity Electronics. If the suspect parts are determined to be suspect counterfeit, fraudulent or counterfeit by the independent test lab, then the SUPPLIER of those parts shall be required to pay for all charges issued by the testing lab. If, however, the suspect parts are determined not to be suspect counterfeit, fraudulent or counterfeit then Serendipity Electronics shall be required to pay all of the charges issued by the testing lab. Serendipity Electronics and SUPPLIER agree that whether or not SUPPLIER refunds all monies paid by Serendipity Electronics, Serendipity Electronics shall have the absolute right to reacquire possession of the subject electronic parts from the lab in order to prevent the subject electronic parts from being offered for sale through any channels of distribution. In the event that SUPPLIER pursues its Supplier, either in civil or criminal proceedings, SUPPLIER shall have the right upon request to receive and use a mutually agreeable sample quantity of the parts sold for the purpose of pursuing its remedies. Upon completion of testing, samples will be returned to SUPPLIER who will then return them to Serendipity Electronics. Serendipity Electronics and SUPPLIER agree that Serendipity Electronics shall have the right to destroy the suspect electronic parts after expiration of the applicable statute of limitations under the appropriate Authority(ies) Having Jurisdiction. Notwithstanding the above, if Serendipity Electronics and SUPPLIER agree in writing that the parts can be immediately destroyed, the parts will be destroyed per their agreement so long as all civil or criminal actions, in which the suspect electronic parts are the subject of the action, have been completed.”
5.) SUPPLIER and Serendipity hereby agree that if Serendipity or a testing laboratory chosen by Serendipity determines that the electronic parts supplied are suspect/fraudulent/counterfeit, then SUPPLIER has the right to: 1) agree with Serendipity’s findings and the transaction will be cancelled; or 2) verify Serendipity’s findings by contracting with a Serendipity-approved and SUPPLIER-recognized test laboratory (hereafter referred to as “lab”) for further verification.
6.) Since any dispute between Serendipity and SUPPLIER may be resolved in a civil proceeding whether in a court of law or in an arbitration, the appropriate burden of proof required for Serendipity to establish that the suspect parts are fraudulent/counterfeit shall be preponderance of the evidence, which means that Serendipity must establish that it is more likely than not that the suspect parts are fraudulent/counterfeit unless Serendipity is trying to establish fraud, which would then raise Serendipity’s burden of proof to a clear and convincing evidence standard. However, if for whatever reason, the issue of the authenticity of the suspect parts is raised during a criminal proceeding, then the burden of proof that the suspect parts are fraudulent/counterfeit shall be that the suspect parts are fraudulent/counterfeit beyond a reasonable doubt.
7.) If SUPPLIER accepts Serendipity’s findings and chooses to immediately void the transaction, the suspect electronic parts will not be returned to SUPPLIER unless and/or until an independent lab agreed to by both SUPPLIER and Serendipity determines that the electronic parts are not suspect fraudulent/counterfeit or fraudulent/counterfeit. Under these circumstances, Serendipity shall retain possession of the suspect electronic parts for a time period at least as long as the applicable statute of limitations under the appropriate authority(ies) having jurisdiction following the date upon which SUPPLIER received notification from Serendipity that it was choosing to immediately void the transaction between them. Once this period has expired, then Serendipity shall have the absolute right to destroy the suspect electronic parts. If SUPPLIER exercises its right to have an independent lab determine whether the suspect electronic parts are fraudulent/counterfeit and the lab verifies the findings that the subject electronic parts are either suspect fraudulent/counterfeit or fraudulent/counterfeit, then SUPPLIER must issue an immediate refund of all monies paid by Serendipity. Serendipity and SUPPLIER agree that whether or not SUPPLIER refunds all monies paid by Serendipity, Serendipity shall have the absolute right to reacquire possession of the subject electronic parts from the lab in order to prevent the subject electronic parts from being offered for sale through any channels of distribution. In the event that SUPPLIER pursues its supplier, either in civil or criminal proceedings, SUPPLIER shall have the right, upon request, to receive and use a mutually-agreeable sample quantity of the parts sold for the purpose of pursuing its remedies. Upon completion of testing, samples will be returned to SUPPLIER who will then return them to Serendipity. Serendipity and SUPPLIER agree that Serendipity shall have the right to destroy the suspect electronic parts after expiration of the applicable statute of limitations under the appropriate authority(ies) having jurisdiction. Notwithstanding the above, if Serendipity and SUPPLIER agree, in writing, that the parts can be immediately destroyed, the parts will be destroyed per their agreement so long as all civil or criminal actions, in which the suspect electronic parts are the subject of the action, have been completed.
8.) Notice must be provided within ten days after receipt of this purchase order that SUPPLIER is unable to supply the complete order by the date specified. Failure to provide notice within that time will cause SUPPLIER to be subject to any and all damages suffered by Serendipity due to its failure to receive the ordered parts in a timely fashion.
9.) The courts of Nassau County of the State of New York, will have exclusive jurisdiction and venue of any dispute that arises out of or relating to this purchase order.
If Serendipity is purchasing the subject parts from a supplier overseas, “Any dispute, controversy or claim arising out of or relating to this contract, including the validity, invalidity, breach, or termination thereof, shall be finally settled by binding arbitration and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction. The arbitration shall be conducted in English in New York in accordance with the United States Arbitration Act and the substantive law of the state of New York.
10.) New York law will govern any dispute that arises out of or relates to this purchase order.
11.) Before any legal action is filed concerning this purchase order, SUPPLIER and Serendipity agree to participate in mediation before a neutral mediator that will last a minimum of four hours unless the matter is resolved in less than that amount of time.
12.) If any dispute arises between SUPPLIER and Serendipity and a lawsuit is filed, the prevailing party will be entitled to recover their reasonable attorneys’ fees and costs.
13) Any terms and conditions submitted and/or offered by SUPPLIER shall be deemed additional terms and shall be considered null and void and unenforceable under this Agreement.
14) Supplier shall notify Serendipity of any nonconforming product that was shipped to Serendipity.
15) Supplier shall obtain approval from Serendipity regarding nonconforming product disposition prior to shipment.
16) Supplier shall notify Serendipity of any changes in the product or process definition, changes of supplier, changes of manufacturing facility location and, where required, obtain approval from Serendipity.
17) Supplier shall flow down to the supply chain any applicable requirements including Serendipity customer’s requirements.
18) Supplier shall retain records related to the product supplied for a minimum of seven (7) years, unless otherwise directed by the Purchase Order.
19) Supplier shall allow right of access by Serendipity, our customer and regulatory authorities to the applicable areas of facilities, at any level of the supply chain, involved in the order and to all applicable records.
20) Insurance. Seller shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) with financially sound and reputable insurers in a sum sufficient to fund its indemnification obligations hereunder. Upon Buyer’s request, Seller shall provide Buyer with a certificate of insurance from Seller’s insurer evidencing the insurance coverage specified in this Order. Except where prohibited by law, Seller shall require its insurer to waive all rights of subrogation against Buyer’s insurers and Buyer or the Indemnitees.
21) Warranties. Seller warrants to Buyer that all Goods and parts of Goods will: (a) be free from any defects in quality, workmanship, material and/or design, as applicable; (b) strictly conform to applicable descriptions, specifications, drawings, designs, samples, Seller’s promises and representations, and all requirements specified by Buyer in this Order; (c) be fit for their intended purpose and operate or be usable as intended; (d) be merchantable; (e) not constitute Suspect, Fraudulent, Unapproved or Counterfeit Goods; (f) be free and clear of all liens, security interests or other encumbrances; (g) not infringe or misappropriate any third party’s patent or other intellectual property rights; (g) carry the original manufacturer’s warranty, (i) not experience data integrity, undetected data loss, or related issues, and shall conform with any other related requirements specified in this Order; (j) to the extent the Goods include software code, contain no harmful or malicious code; (k) comply with all licensing agreements applicable to any third-party code included in the Goods (all of which Seller shall advise Buyer of in writing with its acceptance of this Order); (l) not be subject to claims by authors to moral rights in the Goods, to the extent permitted by law; and (m) meet the original manufacturer’s published specifications at the time of the original manufacturing for a minimum of sixty (60) days following the Delivery Date (or such longer period as required on the face of this Order). Seller further warrants it has full right power and authority to sell and transfer title to all Goods. Any Goods that do not meet the foregoing warranties shall be defective Goods (“Defective Goods”). These warranties survive any delivery, inspection, acceptance or payment of or for the Goods by Buyer. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Buyer’s discovery of the noncompliance of the Goods with the foregoing warranties. Notwithstanding the foregoing, there shall be no time limit on Seller’s warranty of Goods, and Seller’s warranty shall not expire, that are found to be Counterfeit Goods. If Buyer gives Seller notice of noncompliance with this Section, Buyer may, at its sole option, require Seller to: (a) immediately refund the Price paid in full or (b) replace or repair the Nonconforming Goods or Defective Goods at Seller’s own cost and expense within such time frame as specified by Buyer, and pay for all related expenses, including, but not limited to, transportation charges for the return of the Nonconforming Goods or Defective Goods to Seller and the delivery of repaired or replacement Goods to Buyer.
22) SUPPLIER shall sign and return a copy of these conditions as evidence of acknowledgement of the above-stated TERMS.
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