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Terms of Use
Sales Order Terms and Conditions
  • 1. SERVICES & DELIVERABLES. Seller agrees to provide the Goods or deliverables (collectively referred to as "Goods"), described in any purchase order, in accordance with these Terms and Conditions ("Agreement"). Upon acceptance of a purchase order, shipment of Goods or commencement of a Service, Seller shall be bound by the provisions of these Terms and Conditions, including all provisions set forth on the face of any applicable purchase order, whether Seller acknowledges or otherwise signs this Agreement or the purchase order, unless Seller objects to such terms in writing prior to shipping Goods or commencing Services.

    This writing does not constitute a firm offer and may be revoked at any time prior to acceptance. This Agreement may not be added to, modified, superseded or otherwise altered, except by writing signed by an authorized Provo Craft representative. Any terms or conditions contained in any acknowledgment, invoice or other communication of Seller, which are inconsistent with the terms and conditions herein, are hereby rejected. If there is a conflict between the English terms and the Chinese terms, then English terms shall control. To the extent that this Agreement might be treated as an acceptance of Seller's prior offer, such acceptance is expressly made on condition of assent by Seller to the terms hereof and shipment of the Goods or beginning performance of any Services by Seller shall constitute such assent.
  • 2. DELIVERY. Time is of the essence. Delivery of Goods shall be made pursuant to the schedule, via the carrier and to the place specified on the face of the applicable purchase order and in compliance with Provo Craft’s Vendor Logistics Guide. Provo Craft reserves the right to return, shipping charges collect, all Goods received in advance of the delivery schedule. If no delivery schedule is specified, the order shall be filled promptly and delivery will be made by the most expeditious form of land transportation. If no method of shipment is specified in the purchase order, Seller shall use the least expensive carrier. In the event Seller fails to deliver the Goods within the time specified, Provo Craft may, at its option, decline to accept the Goods and terminate the Agreement or may demand its allocable fair share of Seller's available Goods and terminate the balance of the Agreement. Seller shall package all items in suitable containers to permit safe transportation and handling. Each delivered container must be labeled and marked to identify contents without opening and all boxes and packages must contain packing sheets listing contents. Provo Craft's purchase order number must appear on all shipping containers, packing sheets, delivery tickets and bills of lading.
  • 3. IDENTIFICATION, RISK OF LOSS & DESTRUCTION OF GOODS. Identification of the Goods shall occur in accordance with Provo Craft’s Vendor Logistics Guide, or as otherwise specified by Provo Craft. Seller assumes all risk of loss until receipt by Provo Craft. Title to the Goods shall pass to Provo Craft upon receipt by it of the Goods at the designated destination. If the Goods ordered are destroyed prior to title passing to Provo Craft, Provo Craft may at its option cancel the Agreement or require delivery of substitute Goods of equal quantity and quality. Such delivery will be made as soon as commercially practicable. If loss of Goods is partial, Provo Craft shall have the right to require delivery of the Goods not destroyed.
  • 4. PAYMENT. As full consideration for the delivery of the Goods and the assignment of rights to Provo Craft as provided herein, Provo Craft shall pay Seller the amount agreed upon and specified in the applicable purchase order. Applicable taxes and other charges such as shipping costs, duties, customs, tariffs, imposts and government imposed surcharges shall be stated separately on Seller's invoice. Payment is made when Provo Craft's check is mailed. Payment shall not constitute acceptance. All personal property taxes assessable upon the Goods prior to receipt by Provo Craft of Goods conforming to the purchase order shall be borne by Seller. Seller shall invoice Provo Craft for all Goods delivered and all Services actually performed. Each invoice submitted by Seller must be provided to Provo Craft within ninety (90) days of delivery of Goods and must reference the applicable purchase order, and Provo Craft reserves the right to return all incorrect invoices. Unless otherwise specified on the face of a purchase order, Provo Craft shall pay the invoiced amount within sixty (60) days after receipt of a correct invoice.
  • 5. WARRANTIES. Seller warrants that all Goods provided will be new and will not be used or refurbished. Seller warrants that all Goods delivered shall be free from defects in materials, design and workmanship and shall conform to all applicable specifications for a period of fifteen (15) months from the date of delivery to Provo Craft or for the period provided in Seller's standard warranty covering the Goods, whichever is longer. Furthermore, the Products will be free from defects and materials which could create a hazard to life or property; the Products will conform in all respects with all applicable international, federal, state, agency, and local laws, orders, and regulations, including, without limitation, those regarding: (a) safety, (b) content, (c) flammability, (d) weights, measures, and sizes, (e) processing, manufacturing, labeling, advertising, selling, shipping, and invoicing, (f) registration and declaration of responsibility, (h) occupational safety and health, and (g) noise, radio and electromagnetic emissions. If requested by Provo Craft in the Purchase Order, Seller hereby agrees that it will make spare parts available to Provo Craft for a period of five (5) years from the date of shipment at Sellers then current price. Additionally, Goods purchased shall be subject to all written express warranties made by Seller's agents. All warranties shall be construed as conditions as well as warranties and shall not be exclusive. Seller shall furnish to Provo Craft Seller's standard warranty and service guaranty applicable to the Goods. All warranties and Service guaranties shall run both to Provo Craft and to its customers.

    If Provo Craft identifies a warranty problem with the Goods during the warranty period, Provo Craft will promptly notify Seller of such problems and will return the Goods to Seller, at Seller's expense. Within five (5) business days of receipt of the returned Goods, Seller shall, at Provo Craft's option, either repair or replace such Goods, or credit Provo Craft's account for the same.

    Replacement and repaired Goods shall be warranted for the remainder of the warranty period or six (6) months, whichever is longer.
  • 6. INSPECTION. Provo Craft shall have a reasonable time after receipt of Goods or Service deliverables and before payment to inspect them for conformity hereto, and Goods received prior to inspection shall not be deemed accepted until Provo Craft has run an adequate test to determine whether the Goods conform to the specifications hereof. Use of a portion of the Goods for the purpose of testing shall not constitute an acceptance of the Goods. If Goods tendered do not wholly conform with the provisions hereof, Provo Craft shall have the right to reject such Goods. Nonconforming Goods will be returned to Seller freight collect and risk of loss will pass to Seller upon Provo Craft's delivery to the common carrier.
  • 7. INDEPENDENT CONTRACTOR. Seller is an independent contractor for all purposes, without express or implied authority to bind Provo Craft by contract or otherwise. Neither Seller nor its employees, agents or subcontractors ("Seller's Assistants") are agents or employees of Provo Craft.
  • 8. SELLER RESPONSIBLE FOR TAXES AND RECORDS. Seller shall be solely responsible for filing the appropriate federal, state and local tax forms, and paying all such taxes or fees, including estimated taxes and employment taxes, due with respect to Seller's receipt of payment under this Agreement. Seller further agrees to provide Provo Craft with reasonable assistance in the event of a government audit. Provo Craft shall have no responsibility to pay or withhold from any payment to Seller under this Agreement, any federal, state or local taxes or fees.
  • 9. INSURANCE. Seller shall be solely responsible for maintaining liability, and other insurance, as is required by law or as is the common practice in Seller's trades or businesses, whichever affords greater coverage. Upon request, Seller shall provide Provo Craft with certificates of insurance or evidence of coverage before commencing performance under this Agreement. Seller shall provide adequate coverage for any Provo Craft property under the care, custody or control of Seller.
  • 10. INDEMNITY. Seller shall indemnify, hold harmless, and at Provo Craft's request, defend Provo Craft, its officers, directors, customers, agents and employees, against all claims, liabilities, damages, losses and expenses, including attorneys' fees and cost of suit arising out of or in any way connected with the Goods or Services provided under this Agreement, including, without limitation, (i) any claim based on the death or bodily injury to any person, destruction or damage to property, or contamination of the environment and any associated clean up costs, (ii) any claim based on the negligence, omissions or willful misconduct of Seller or any Seller's Assistants, and (iii) except where a design, or specification, is provided by Provo Craft, any claim by a third party against Provo Craft alleging that the Goods or Services, the results of such Services, or any other products or processes provided under this Agreement, infringe a patent, copyright, trademark, trade secret or other proprietary right of a third party, whether such are provided alone or in combination with other products, software or processes. Seller shall not settle any such suit or claim without Provo Craft's prior written approval. Seller agrees to pay or reimburse all costs that may be incurred by Provo Craft in enforcing this indemnity, including attorneys' fees.

    Should Provo Craft's use, or use by its distributors, subcontractors or customers, of any Goods or Services purchased from Seller be enjoined, be threatened by injunction, or be the subject of any legal proceeding, Seller shall, at is sole cost and expense, either (a) substitute fully equivalent non-infringing Goods or Services; (b) modify the Goods or Services so that they no longer infringe but remain fully equivalent in functionality; (c) obtain for Provo Craft, its distributors, subcontractors or customers the right to continue using the Goods or Services; or (d) if none of the foregoing is possible, refund all amounts paid for the infringing Goods or Services.
  • 11. CONFIDENTIALITY. Seller will acquire knowledge of Provo Craft Confidential Information (as defined below) in connection with its performance hereunder and agrees to keep such Provo Craft Confidential Information in confidence during and following termination or expiration of this Agreement. "Provo Craft Confidential Information" includes but is not limited to all information, whether written or oral, in any form, including without limitation, information relating to the research, development, products, methods of manufacture, trade secrets, business plans, customers, vendors, finances, personnel data, Work Product (as defined herein) and other material or information considered proprietary by Provo Craft relating to the current or anticipated business or affairs of Provo Craft which is disclosed directly or indirectly to Seller. In addition, Provo Craft Confidential Information means any third party's proprietary or confidential information disclosed to Seller in the course of providing Services or Goods to Provo Craft. Provo Craft Confidential Information does not include any information (i) which Seller lawfully knew without restriction on disclosure before Provo Craft disclosed it to Seller, (ii) which is now or becomes publicly known through no wrongful act or failure to act of Seller, (iii) which Seller developed independently without use of the Provo Craft Confidential Information, as evidenced by appropriate documentation.
  • 12. OWNERSHIP OF WORK PRODUCT. For purposes of this Agreement, "Work Product" shall include, without limitation, all designs, discoveries, creations, works, devices, masks, models, work in progress, inventions, products, improvements, developments, drawings, notes, documents, business processes, information and materials made, conceived or developed by Seller alone or with others which result from or relate to the Goods provided hereunder. Standard Goods manufactured by Seller and sold to Provo Craft without having been designed, customized or modified for Provo Craft do not constitute Work Product. All Work Product shall at all times be and remain the sole and exclusive property of Provo Craft. Seller hereby agrees to irrevocably assign and transfer to Provo Craft and does hereby assign and transfer to Provo Craft all of its worldwide right, title and interest in and to the Work Product including all associated intellectual property rights. Seller agrees: (a) to disclose promptly in writing to Provo Craft all Work Product in its possession; (b) to assist Provo Craft in every reasonable way, at Provo Craft's expense, to secure, perfect, register, apply for, maintain, and defend for Provo Craft's benefit all copyrights, patent rights, mask work rights, trade secret rights, and all other proprietary rights or statutory protections in and to the Work Product in Provo Craft's name as it deems appropriate; and (c) to otherwise treat all Work Product as Provo Craft Confidential Information as described above. These obligations to disclose, assist, execute and keep confidential survive the expiration or termination of this Agreement. All tools and equipment supplied by Provo Craft to Seller shall remain the sole property of Provo Craft.
  • 13. TERMINATION. Provo Craft may terminate this Agreement upon written notice. In the event of such termination, Provo Craft shall pay Seller for the portion of the those conforming Goods delivered to Provo Craft through the date of termination, less appropriate offsets.

    Upon the expiration or termination of this Agreement: (a) each party will be released from all obligations to the other arising after the date of expiration or termination, except for those which by their terms survive such termination or expiration; and (b) Seller will promptly notify Provo Craft of all Provo Craft Confidential Information or any Work Product in Seller's possession and, at the expense of Seller and in accordance with Provo Craft's instructions, will promptly deliver to Provo Craft all such Provo Craft Confidential Information and/or Work Product.
  • 14. FORCE MAJEURE. Provo Craft shall not be liable for any failure to perform including failure to take delivery of the Goods as provided caused by circumstances beyond its control which make such performance commercially impractical including, but not limited to, acts of God, fire, flood, acts of war, government action, accident, labor difficulties or shortage, inability to obtain materials, equipment or transportation. In the event Provo Craft is so excused, either party may terminate the Agreement and Provo Craft shall at its expense and risk, return any Goods received to the place of shipment.
  • 15. SEVERABILITY. If any provision of this Agreement shall be deemed to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
  • 17. ASSIGNMENT; WAIVER. Seller may not assign this Agreement or any of its rights or obligations under this Agreement, without the prior written consent of Provo Craft. Any assignment or transfer without such written consent shall be null and void. This Agreement shall inure to the benefit of, and be binding upon, the successors and assigns of Provo Craft without restriction. A waiver of any default hereunder or of any term or condition of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or any other term or condition.
  • 18. NONEXCLUSIVE AGREEMENT. This is not an exclusive agreement. Provo Craft is free to engage others to perform Services or provide Goods the same as or similar to Seller's. Seller is free to, and is encouraged to, advertise, offer and provide Seller's Services and/or Goods to others; provided however, that Seller does not breach this Agreement.
  • 19. NOTICES. Except for Purchase Orders which may be sent by local mail, facsimile transmission, or electronically transmitted, all notices, and other communications hereunder shall be in writing, and shall be addressed to Seller or to an authorized Provo Craft representative, and shall be considered given when (a) delivered personally, (b) sent by confirmed telex or facsimile, (c) sent by commercial overnight courier with written verification receipt, or (d) three (3) days after having been sent, postage prepaid, by first class or certified mail.
  • 20. SURVIVAL OF OBLIGATIONS. Any obligations and duties which by their nature extend beyond the expiration or termination of this Agreement shall survive the expiration or termination of this Agreement.
  • 21. GOVERNING LAW. This Agreement shall be construed in accordance with, and disputes shall be governed by, the laws of the State of Utah, excluding its conflict of law rules. The Fourth District Court of Utah or the United States District Court for the District of Utah shall have jurisdiction and venue over all controversies arising out of, or relating to, this Agreement. The applicability of the UN Convention on Contracts for the International Sale of Goods is hereby expressly waived by the parties and it shall not apply to the terms and conditions of this Agreement.
  • 22. ENTIRE AGREEMENT; MODIFICATION. This Agreement is the complete, final and exclusive statement of the terms of the agreement between the parties and supersedes any and all other prior and contemporaneous negotiations and agreements, whether oral or written, between them relating to the subject matter hereof. This Agreement may not be varied, modified, altered, or amended except in writing, including a purchase order or a change order issued by Provo Craft, signed by the parties. The terms and conditions of this Agreement shall prevail notwithstanding any variance with the terms and conditions of any acknowledgment or other document submitted by Seller. Notwithstanding the foregoing, this Agreement will not supersede or take the place of any written agreement which is signed by both parties and covers the same subject matter as this Agreement or its related purchase orders.
  • 23. COMPLIANCE WITH LAWS. Seller shall comply fully with all applicable federal, state and local laws in the performance of this Agreement. Upon Provo Craft's request, Seller will promptly provide Provo Craft with a statement of origin for all Goods and other documents reasonably requested by Provo Craft in order to effect the import/export of the Goods to the location designated by Provo Craft.
  • 24. INJUNCTIVE RELIEF. Seller acknowledges and agrees that the obligations and promises of Seller under this Agreement are of a unique, intellectual nature giving them particular value. Seller's breach of any of the promises contained in this Agreement will result in irreparable and continuing damage to Provo Craft for which there will be no adequate remedy at law and, in the event of such breach, Provo Craft will be entitled to seek injunctive relief, or a decree of specific performance.