PGC GENERAL TERMS AND CONDITIONS OF PURCHASE

DEFINITIONS

Buyer is PGC with principal place of business at 5732 Lincoln Drive, Edina, Minnesota 55436, USA.

Seller is the provider of goods and/or services set forth under this Purchase Order.

Purchase Order (PO) is any contract (including but not limited to, a Purchase Order, Adoption Purchase Order, Release, GTA, or LTA), and of which shall incorporate by reference these General Terms and Conditions of Purchase.  These General Terms and Conditions of Purchase, as set forth herein, as incorporated into a Purchase Order, shall be collectively referred to as the “Purchase Order.”

Product includes any product or service specified in a Purchase Order to be delivered by Seller to Buyer under this General Terms and Conditions of Purchase.

Sensitive Information means any Information that is collected, processed, maintained, used, shared, or disseminated in connection with this Purchase Order that warrants protection to ensure its confidentiality, integrity and availability including, but not limited to, any PGC proprietary information and third-party proprietary information, personal information, and Controlled Unclassified Information (CUI) defined in the National Archives and Records Administration (NARA) Registry.

PURCHASE ORDER OF PRECEDENCE.  In the event of conflict between the terms and provisions set forth in these General Terms and Conditions of Purchase and the terms and provisions set forth in any other document, such as, but not limited to: purchase orders, statements of work, planning, etc., specifications or drawings applicable thereto, the order of precedence or priority shall be as follows: (1) General Terms and Conditions of Purchase; (2) purchase orders; (3) Product Specifications; and (4) Drawings.  (Should any conflict arise, Seller shall contact Buyer for specific clarification.)

GENERAL REQUIREMENTS

1. Acceptance – This Purchase Order (PO) contains the complete agreement between the Seller and Buyer and expressly limits acceptance to its terms. Buyer expressly objects to and expressly rejects any provisions additional to or different than the terms hereof that may appear in Seller’s quotation, acknowledgement, confirmation, invoice or in any other prior or later communication from Seller to Buyer unless such provision is expressly agreed to by Buyer in writing. Seller will notify Buyer within 24 hours after receipt of Buyer’s purchase order with an acknowledgement via email to Buyer or to procurement2@pgc-solutions.com.  If an acknowledgement is not possible for any reason, Seller must communicate the reason why to Buyer directly.
2. Invoices – All invoices shall be forwarded to PGC, 5732 Lincoln Drive, Edina, MN 55436 Accounts Payable Department, or emailed to ap@pgc-solutions.com. Seller shall provide invoices in English and in U.S. Dollars only. Invoices must include information from PGC’s Purchase Order including Seller’s product/part number, description, price and extended price, date of sale, Inco Terms, and Country of Origin.  Buyer may offset against any invoice the cost of any damaged, defective, or incorrect Product, unless a credit memo is forwarded to Accounts Payable Department or emailed to ap@pgc-solutions.com.
3. Prices and Discounts – The prices and discounts will be as provided in this Purchase Order, an attachment to this PO or the applicable contract.
4. Taxes – Taxes to be paid by Buyer, if any, must be itemized and separately stated as to type of tax (such as State Sales Tax, etc.)
5. Changes – Buyer may require changes to this PO at any time. Any price and/or schedule adjustments will be mutually agreed upon. Seller’s performance of such changes shall not be delayed during any negotiations for adjustments.
6. Payment Terms – Payments Terms are net forty-five (45) days, and payment due dates, including discount periods, shall be computed from the later of (1) the date of receipt of the product, or (2) the date of receipt of a correct (proper) invoice.
7. Ethics Requirements – Buyer is committed to conducting business fairly, impartially and in an ethical and proper manner. Buyer’s expectations are that Seller will also conduct business fairly, impartially and in an ethical manner, and that Seller will have (or will develop) and adhere to a code of ethical standards.
8. Business Continuity – Seller shall use commercially reasonable efforts to develop and maintain reasonable business continuity management procedures regarding contingency management to alleviate the effects of any business impacting events that may have a material and adverse impact on the Seller’s ability to perform its obligations under this PO. The Business Continuity Plan shall contain at a minimum provision for (a) a risk assessment and business impact analysis (b) a prevention/mitigation plan, and (c) a resumption of service plan, including a recovery/restoration plan. The preceding will cover, but not be limited to, (i) services documentation storage and protection (including, but not limited to, storage of deliverable technical information, specifications and other documentation, design documents, tools, processes and fixtures), (ii) information systems security and redundancy, and (iii) demonstrating Seller’s ability to rapidly recover the loss of capability to deliver services and product.
9. Information Security – Seller shall apply reasonable and appropriate administrative, technical, physical, organizational, and operational safeguards and operations to protect confidential and Sensitive Information against accidental and unlawful destruction, alteration, and unauthorized or improper disclosure or access regardless of whether such Sensitive Information is on Seller’s internal systems or a cloud environment. If Seller’s performance of the Purchase Order involves the transmission, storage, or process of Sensitive Information on an Information system, the Seller shall at a minimum apply FAR 52.204-21 Basic Safeguarding Controls, regardless of whether FAR 52.204-21 applies to the Purchase Order.
10. Force Majeure – Except for a default of Seller’s subcontractor at any tier, neither Buyer nor Seller shall be liable for any failure to perform due to any cause beyond its reasonable control and without its fault or negligence. Such causes include, but are not limited to: (1) acts of God or of the public enemy; (2) acts or failure of any government in either its sovereign or contractual capacity; (3) fires, floods, epidemics, terrorism, quarantine restrictions, strikes, freight embargoes, nuclear incident, or any other act or event beyond reasonable control and without the fault of either Party or its subcontractors. In the event that performance of this Order is hindered, delayed, threatened to be delayed, or adversely affected by causes of the type described above, then the Party whose performance is so affected shall immediately notify the other Party’s Authorized Representative in writing,
    including all relevant information with respect thereof, and shall likewise notify promptly of any subsequent change in the circumstances, and at
    Buyer’s sole option, this Order shall be completed with such adjustments to delivery schedule as are reasonably required by the existence of such
    cause or this Order may be terminated for convenience.
11. Assignment and Delegation – Seller shall notify and obtain prior written approval from Buyer prior to subcontracting any material portion of work to be performed under this PO. Seller shall include as part of its subcontracts those elements of the PO that protect Buyer’s rights. In addition, Seller shall provide to its subcontractor’s sufficient information to clearly document the work being performed by Seller’s subcontractor as to facilitate performance under the Purchase Order issued hereunder.
12. Configuration Control or Modifications – Seller is responsible to notify Buyer in writing, with at least 90 days advanced notice, about their intent to change material sources, process or process flow at existing material sources, process control plan, equipment, metrology, packaging or product specifications and request prior written approval by Buyer prior to implementing such change. Seller will place the above requirement on all its subcontracts. Unplanned changes (example sub-tier suppliers going out of business, etc.) should be notified as soon as the information is available. PGC’s expectation is that Sellers are proactively monitoring their supply chains to anticipate unplanned events as much as possible.
13. Compliance with Applicable Laws – Seller represents, warrants and covenants that all of the Products and materials delivered hereunder will be and will have been produced and/or provided in compliance with all applicable laws, rules, regulatory and statutory requirements, purchase orders, treaties and other requirements of federal/national, state/provincial and local governments and agencies thereof, including, without limitation, those relating to labor, health, safety and the environment. Seller shall indemnify and hold harmless Buyer from and against all losses, costs, fees and damages arising, directly or indirectly, from any actual or alleged failure by Seller to comply with any federal, state or local statutes or other legal obligations.
14. Compliance with Law and Disclosure of Product Restrictions and Required Warnings – Seller represents, warrants and covenants that all Products and
    materials delivered hereunder will be and will have been produced and/or provided in compliance with all applicable chemical legislations and the related national implementing legislations, each as amended, varied or otherwise restated from time to time, including but not limited to the
    Restriction of Hazardous Substances (“RoHS”) Directive 2011/65/EU, the Chinese Administrative Measures for Restriction of Hazardous Substances in Electrical and Electronic Products (July 2016), Regulation EC No 1907/2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (“REACH”), and all other applicable product-related environmental regulatory requirements of the jurisdictions in which the Products will be delivered or marketed, including all federal, national, provincial, regional, state, and local laws, statutes, regulations, ordinances, administrative rules, orders that have the effect of law, and judicial rulings and opinions (“Laws”). Seller is and remains fully responsible for compliance at its sole cost with any applicable Laws, each as amended, varied, or otherwise restated from time to time. Products shall not contain any chemicals that are banned or otherwise restricted in use or disposal under any Law or otherwise not compliant with the specifications provided in writing by Seller and Buyer. Seller is responsible for ensuring that Products are properly packaged, marked, labeled, documented, shipped, and/or registered under applicable Law. Any warnings, cautionary statements, and safety data sheets required by Law for the Products must be disclosed in writing by Seller to Buyer. At Buyer’s request, Seller shall provide the chemical composition, including proportions and weight of substance, mixture, and any other relevant information or data, including but not limited to full or partial material declarations, or declaration of conformity with applicable Law. Seller undertakes to duly and immediately inform Buyer of any changes affecting compliance with any applicable Law. Insofar as Products, parts of Products or substances are not supplied in accordance with any requirement of this Section 14, Buyer reserves the right to cancel the applicable purchase order at Buyer’s sole option, to require cure of any noncompliance, without prejudice to any other remedies Buyer may have under this agreement. Seller shall indemnify and hold harmless Buyer from and against all losses, costs, fees, and damages arising, directly or indirectly, from any actual or alleged failure by Seller to comply with any federal, state, or local statutes or other legal obligations.
15. Conflict Minerals – If Seller is providing Products to Buyer under this Order, Seller shall use commercially reasonable efforts to identify whether such Products contain tin, tantalum, gold, or tungsten; determine whether any such minerals originated in covered countries, as defined in Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Act”) and perform appropriate due diligence on its supply chain in support of Buyer’s obligations under the Act. In addition, Seller shall, as soon as reasonably practicable following the completion of the calendar year, provide a completed Conflict Minerals Reporting Template (CMRT) using the form found at http://www.responsiblemineralsinitiative.org/conflict-minerals-reporting-template/ . If requested, Seller will promptly provide information or representations that Buyer reasonably believes are required to meet Buyer’s conflict minerals compliance obligations.
16. Application of Law (Domestic U.S. Purchase Orders). Seller and Buyer agree that this Purchase Order shall be deemed to be made and executed in the State of Minnesota, regardless of where this Purchase Order was issued or accepted, and all of the terms and provisions set forth in this Purchase Order, and performance hereunder, shall be governed, interpreted and construed in accordance with the laws of the State of Minnesota (without regard to any conflict of law rules which might require or allow the application of the law of any other jurisdiction).  Any action or claim relating to or arising out of any dispute hereunder shall be brought in the appropriate State or Federal court located in Hennepin County, Minnesota, and Seller hereby irrevocably consents and submits to personal jurisdiction and venue in any such court.  Pending resolution by Purchase Order or final judgment of any dispute, action or claim relating to or arising out of this Purchase Order, Seller shall proceed diligently with performance of this Purchase Order in accordance with Buyer’s decision and direction.  If the Seller is a non-U.S. Domestic entity, then the following clause shall apply.
17. Intellectual Property/Patents – Seller warrants that the products and the sale and use of them will not infringe any United States or foreign patents, trademarks, trade dress, copyrights, trade secrets or any other form of intellectual property that Buyer provides to Seller are Buyer’s exclusive property and Seller disclaims all rights in same. Where payment is made for experimental, developmental, or research work, as such, to be performed in accordance with special requirements of 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 or other form of intellectual property and Seller shall disclaim all rights in same. All drawings, art work, special products, materials, information or data furnished by Buyer and all intellectual property resulting from this Purchase Order (as referenced in the foregoing sentence) are Buyer’s exclusive property, shall be used by Seller only for Buyer’s work, shall be deemed Buyer’s Proprietary Information. Buyer will market, distribute and/or sell the products under its own trademark and trade name.  Buyer has the right to use any of Seller’s marks, names, other trade identities, copyrighted works or other intellectual property, to the extent that Seller has incorporated such property in or used such property in the manufacture of the products supplied by Seller to Buyer.
18. Indemnity – Seller’s relationship to Buyer is that of an independent contractor and purchaser and Seller shall not be deemed to be an agent of Buyer, nor shall Seller have the right to contract on behalf of or bind Buyer. Seller agrees to indemnify and hold harmless Buyer, and its officers, directors, affiliates and employees (“Buyer Indemnified Parties”) from any and all costs, damages, expenses or other losses or liabilities incurred or paid, arising out of or on account of any claims of or suits whether in law or in equity which may be asserted or brought against any of the Buyer Indemnified Parties hereunder, for property damage or destruction, personal injury or death or any other damages of whatsoever nature or kind, including, but not limited to, claims of consequential loss and breach of contract, in any way related to Seller’s Products or services, or the actions or omissions of Seller or its employees, agents, or subcontractors, except for claims arising through the claimed sole and exclusive negligence of Buyer.  Seller agrees to pay or reimburse Buyer for any expenditures, including, but not limited to, reasonable attorney’s fees and amounts paid in settlement, that Buyer may make or become liable for in connection with the investigation, settlement, defense or otherwise by reason of such claims or suits and, if requested in writing by Buyer, will defend any such suits with counsel acceptable to Buyer at the sole cost and expense of Seller; Seller agrees to pay and to discharge any judgment, orders or decrees rendered or entered against any of the Buyer Indemnified Parties for any matter indemnified hereunder; Buyer may retain any money due or to become due to Seller sufficient to reimburse Buyer against any such claims, demands, judgments, or liability.  At all times during the term of this Purchase Order and as long thereafter as there are products in service by Buyer’s customers Seller shall effect and maintain adequate product liability insurance, comprehensive general liability insurance, workers compensation, and any other insurance required by federal, state or local law, with coverage amounts reasonably acceptable to Buyer.
19. Compliance Integrity – Seller warrants that neither it nor any of its employees or representatives have offered or given or will offer or give any gratuities to Buyer’s employees, agents or representatives for the purpose of securing this Purchase Order or securing favorable treatment under this Purchase Order.

 

DELIVERY REQUIREMENTS

 

20. Shipping – Time is of the essence. If delivery is not expected to be made on-time, Seller will notify Buyer and will take all reasonable steps at Seller’s own cost to expedite delivery, however Buyer reserves the right, without liability, in addition to its other rights and remedies, to cancel this PO by notice to Seller and arrange for completion and/or purchase of substitute items elsewhere.  All risk of loss during carriage/transportation shall be the responsibility of Seller and the products will be considered delivered only upon receipt of Buyer’s named place of delivery in conformance with the terms and conditions of this PO.  Transportation delivery is according to PO directions.  Any deviations shall be communicated and approved, in advance, by Buyer.  All materials shall be suitably packed, marked, loaded and shipped in accordance with the requirements of common carriers.  Damage to any material not suitably packed will be charged to Seller.  No charge shall be made by Seller for packing, boxing, drayage, loading or storage, unless otherwise stated herein. Buyer expects from the Seller that all products are to ship in exact quantities only. Any deviations shall be communicated and approved, in advance, by Buyer.
21. On Time Delivery – ≥ 98% on time delivery is expected. Delivery window tolerance is five (5) days early, zero (0) days late. If Seller’s deliveries fail to meet the schedule specified by Buyer with the result that Buyer is compelled to call upon Seller to ship by other designated instructions to expedite delivery, Seller shall assume the difference for the additional cost of transportation. Seller shall not manufacture or purchase materials of Seller’s required flow time or deliver any materials in advance of schedule set forth in the Purchase Order without Buyer’s written permission. Seller agrees to notify Buyer in writing of any potential delay in schedule.

QUALITY REQUIREMENTS

22. Quality Requirements – ≥ 98% lot quality is expected. Seller shall be responsible for ensuring that products furnished hereunder have undergone or have been subject to quality assurance and quality control activities and procedures, which may include performance measurements, testing, quality process reviews or inspections. The Seller needs to implement and maintain a quality management system and provide early and prompt detection of actual or potential material deficiencies, trends or conditions which could result in unsatisfactory quality, and for timely and effective corrective action. Each product will be subject to final inspection and acceptance by Buyer at destination not withstanding that title may have passed to Buyer. The inspection, review or approval by Buyer or any work, drawing, design, or other document shall not relieve Seller of any of its obligations under the Purchase Order or constitute a waiver of any defects or non-conformities in any products.
23. Flow Down of Customer Requirements – Buyer reserves the right to flow down additional requirements to satisfy specific customer and/or business requirements.
24. First Article Requirements – 100% First Article Inspection (1 piece per cavity) required for all initial build to print orders unless otherwise specified on the face of the purchase order. First Article Inspection must include bubbled drawing, inspection data of all dimensions and drawing notes and certificate of conformance.
25. Certificate of Conformance – Material supplied under the terms of this Purchase Order must be accompanied by a Certificate of Conformance signed by a responsible member of the Seller’s quality organization stating the date of manufacture, Buyer’s PO number, part number, description, material specification and lot traceability information, if applicable.
26. Personnel – Seller is expected to develop, implement, and maintain effective policies and training programs to ensure their employees are competent to perform the work assigned, aware of their relevant contribution to product conformity, product safety and the importance of ethical behavior.
27. Rejected Products – Products rejected and returned shall not be replaced by Seller without prior written authorization of Buyer. The products shall be subject to inspection and testing by Buyer before and after receipt.  If at any time any of the items are found to be defective in material or workmanship or not in conformity with the drawings, specifications, samples, or other requirements of the Purchase Order, in addition to notifying Buyer, Buyer may, in addition to any other rights it may have under the Purchase Order or otherwise (a) correct or have corrected the nonconformity at Seller’s expense or reject and return said item to Seller, and (b) recover by offset or otherwise any and all costs, expenses and damages paid, incurred or suffered by Buyer as a result of or relating to holding, return, replacement, correction or rejections of nonconforming items.  Rejected articles may be returned at Seller’s risk and expense.  The Seller shall be responsible for the cost of transportation related to the return and reshipment of any articles rejected by Buyer for failure to meet specifications.
28. Counterfeit Parts – Seller is expected to develop, implement, and maintain effective methods and processes appropriate to their products to minimize the risk of introducing counterfeit parts and materials into deliverable products. In addition, Seller shall provide notification to recipients of counterfeit product(s) when warranted. If suspect counterfeit parts are furnished under this PO or are found in any of the products delivered hereunder, such items will be impounded by Buyer. The Seller shall promptly replace the suspected counterfeit parts with parts acceptable to the Buyer. The Seller shall be liable for all costs relating to the removal and replacement of counterfeit parts, including without limitation Buyer’s external and internal costs of removing the counterfeit parts, or reinserting replacement parts and of any testing required by the reinstallation of Seller’s goods after counterfeit parts have been exchanged. Seller shall be fully liable for all cost associated with changing parts out, material handling and all other related costs.
29. Records Retention – Seller shall maintain records documenting product compliance to all applicable procurement documents, drawings, specifications, and standards for a period of seven (7) years after PO completion and shall be made available to PGC upon request prior to destruction.
30. Right of Access  Seller shall permit representatives of Buyer, its customers, or pertinent government regulatory agencies to conduct quality system and/or product audits as may be requested by Buyer to evaluate quality compliance at the Seller’s facility and/or any of Seller’s sub-tier Seller’s facilities.  Seller shall include substance of this clause in all subcontracts issued hereunder.
31. Warranties – Seller warrants that all articles, materials, work or services furnished hereunder shall be free from defects in material and workmanship and that all items furnished will conform to applicable specifications, drawings, samples and/or other descriptions. Unless manufactured pursuant to detailed design furnished by Buyer, Seller assumes design responsibility and warrants the items to be suitable for the purpose intended.  The warranties of Seller together with its service warranties and guaranties shall run to Buyer, its assigns and each successive customer.  In addition, Seller agrees to pass any warranty benefits to Buyer that Seller receives from its Sellers of any item Purchase Ordered hereunder.

EXPORT CONTROL REQUIREMENTS

32. Export Control – Seller is aware that the items being purchased hereunder may be used in military products. Seller will advise Buyer of any export controls which apply to the item and which would affect the reexport from the United States if America. (a) Seller and Buyer shall comply with the applicable export laws and regulations of the United States of America, the European Union, Canada, or any other country applicable to the Buyer, shipment and/or delivery. (b) Buyer shall obtain such license or authorization to re-export or import as may be required by such regulations. Seller shall provide all reasonable assistance in obtaining such license or authorization. (c) Seller shall, at its own cost and expense, obtain and comply with such license and authorization as may be required by such regulations to deliver the products from Seller’s country to the country of delivery. (d) Seller Shall provide Buyer with all information on the content of the products which is subject to Seller’s country export control regulations, and with other export control related information reasonably known to Seller with respect to any such shipment/delivery.
33. Priorities, Allocations, and Allotments – If a Government priority rating is shown on the face of the PO, the Seller shall follow the provisions of the Defense Priorities and Allocation System (DPAS) Regulation (15CFR700)

 

 

Version 12.13.2021 – END OF GENERAL TERMS AND CONDITIONS