The parties to which these terms and conditions (“T&Cs”) are Advanced Deposition & Coating Technologies, Inc., a California corporation, dba Advanced Coating, whose principle office is located in Rancho Cucamonga, California, U.S.A.(“Advanced”); and its qualified vendors and/or suppliers of resident and non-resident materials who have engaged, or are engaging, in supplying such materials to Advanced, in order for Advanced to perform Parylene conformal coating and related services on behalf of its customers (collectively “Supplier”).
Advanced is engaged and experienced in commercial business enterprises and activities relating to the customized application of Parylene and Parylene coatings, the preparation of electronic assemblies and/or other substrates for Parylene coatings, as well as associated processes and techniques. Advanced is needing to be timely supplied with specific conforming resident materials-i.e. those materials that stay with the subject customer parts-and other essential non-resident materials, from its qualified Supplier. These materials need to be in strict conformance with various requirements, quality standards, and specifications, and need to be fit and to perform in a manner consistent with their intended uses and purposes.
Upon receipt of a request(s) for materials or supplies from Advanced, including any specifications or quality standards associated with such requests for materials or supplies, and any documents supporting those requests, Supplier shall provide Advanced a price quotation for such supplies and/or materials (“Quote”). Should Advanced find such Quote agreeable, Advanced shall then issue its purchase order to Supplier (“Purchase Order”), which shall include and incorporate, these T&Cs and any existing Purchase Order Quality Clause Requirements of Advanced, pertaining to such order(“Quality Clauses”). Said Quality Clauses are hereby incorporated by this reference. Supplier shall then acknowledge to Advanced its acceptance of the Purchase Order. The Quote shall contain all charges for packaging, containers, transportation, unless specifically stated to the contrary, on the face of the Purchase Order.
All subsequent Supplier documentation shall reference Advanced’s Purchase Order.
Advanced will only agree to proceed to procure materials and/or supplies from Supplier under its Purchase Order on the condition that Supplier agrees to these T&Cs and all of Advances’ Quality Clauses. If Supplier fails to object, in writing, to these T&Cs and any existing Quality Clauses of Advanced, either before the confirmation of Advanced’s Purchase Order to Advanced; the delivery to Advanced of the materials or supplies that were ordered by Advanced; or Supplier’s acceptance of any payment from Advanced for the material or supplies, which ever event occurs earlier, this shall constitute the Supplier’s unconditional agreement to all of the T&Cs contained herein and to all existing Quality Clauses of Advanced (collectively “Agreement”).
Supplier further acknowledges and agrees that in the event there are any conflicting terms and conditions between the provisions of any of any documents of Supplier, and those of Advanced, that the applicable provisions of Advanced’s: 1) Purchase Order; 2) Quality Clauses: 3) product drawings; 4) material and process specifications; 5) and these T&Cs, shall prevail-in that sequence.
Upon the acceptance of Advanced’s Purchase Order, Supplier agrees to punctually provide the resident and non-resident materials or supplies ordered by Advanced to enable Advanced to timely fulfill its Parylene coating obligations for the goods provided to Advanced by its customers for such coating, and any other related services. Such requirements are more fully described in the Purchase Order of Advanced and its applicable Quality Clauses.
Any returning Supplier of Advanced shall have the obligation and affirmative duty to inform Advanced of any changes in Supplier’s products and processes, changes to its own suppliers, changes in manufacturing facility locations, and/or its own terms and conditions from those which previously existed, or were used and relied upon by Advanced, in prior orders with that Supplier by Advanced. This is imperative so that Advanced may become alerted to such changes prior to attempting to procure the new materials or supplies under its current Purchase Order from Supplier. All such notifications shall be made in writing by Supplier prior to acceptance by Supplier of Advances’ current Purchase Order. Failure to do so by Supplier may result in cancellation of Advances’ current order with Supplier.
Advanced shall retain the absolute right to modify or cancel its Purchase Order with Supplier, at any time prior to Seller’s shipment of such materials or supplies, without penalty or cost. All such modifications or cancellations shall be provided in writing from Advanced to Supplier.
Supplier acknowledges and agrees that it shall comply with the Advanced Quality System requirements (including its Quality Clauses) as specified by Advanced’s Supplier Survey or Purchase Order. Supplier agrees to implement and maintain the Quality or Inspection System during the performance of this Agreement. An authorized Certificate of Conformance is required with each shipment under this Agreement. Process suppliers shall furnish a complete Certificate of Conformance with each shipment indicating the Purchase Order number, specification number and revision, name of supplier and quantities accepted and rejected. Material suppliers shall furnish chemical/physical test reports with each shipment identifying the applicable specification and revision, actual chemical composition and physical properties, melt, heat, batch, or lot. Advanced reserves the right to test materials provided by Supplier to verify that the material chemical & physical requirements have been met. Additional Advanced Quality Requirements (Quality Clauses) apply when referenced by the subject Purchase Order. However, Supplier is not authorized to perform Material Review or rework action of nonconforming materials or supplies.
Supplier shall implement a Quality System in compliance with ISO9001 or SAE AS9100 or applicable industrial standard. Supplier shall comply with the Advanced’s Special Quality Requirements (as referenced in Advanced’s Quality Clauses). Supplier shall implement and maintain a Key Characteristics (KC) control program acceptable to Advanced.
Supplier shall ensure that the organization’s personnel are aware of their contribution to product or service conformity, their contribution to product safety, and the importance of ethical behavior. Supplier shall ensure that personnel performing work on Advanced’s parts or providing services per Advanced’s purchase order(s) are competent and qualified, and that they understand their interaction with Advanced’s QMS and its requirements.
Materials supplied shall have complete traceability from the raw material stage to all subsequent operations that change the product or transfer ownership via the chain of supply through Supplier to Advanced.
Suppliers supplying materials and hardware (electronic components included) must have a Counterfeit Control program. Suspect counterfeit parts are NOT to be shipped to Advanced Coating.
Supplier acknowledges, warrants, and agrees that all materials, supplies, and parts, which are to be delivered to Advanced are absolutely authentic. Supplier agrees and acknowledges that it shall ensure that no counterfeit parts, materials, or supplies, are delivered to Advanced, and that it shall take every precaution to prevent such a possible occurrence.
Supplier and supplier’s subcontractors shall meet and maintain a Calibration System in compliance with Calibration System Requirements of ISO10012 or ANSI Z540.3-2006, ISO9001-ISO17025.
Supplier shall maintain an FOD Prevention program in accordance with NAS-412, Foreign Object Damage / Foreign Object Debris Prevention.
When required per Advanced’s Purchase Order, Supplier shall use approved suppliers and/or subcontractors to perform special processes while using Advanced’s customers’ pre-approved supplier list.
Supplier must ensure that ALL regulatory and statutory requirements are met in the performance of Advanced’s Purchase Order.
Supplier agrees that consistent with Supplier’s duty of confidentiality to Advanced, it shall ensure that their organization’s personnel are aware of their contribution to product or service conformity, their contribution to product safety, and the importance of ethical behavior. Supplier further agrees that it shall ensure that their personnel performing work on Advanced’s parts or providing materials, supplies or services, per Advanced’s Purchase Order, are competent and qualified, as required, and that they understand their interaction with Advanced’s Quality Clause requirements.
Prior to shipment, Advanced must be notified by Supplier as soon as possible of any discovered nonconforming materials, supplies, products, or processes, and then approval from Advanced to continue their shipment, must be obtained prior to shipment.
Supplier MUST also immediately notify Advanced of any nonconforming materials, supplies or products discovered after delivery to Advanced, but no later than within 48 Hrs. of discovery. Notification MUST include details of nonconformance, quantity delivered, containment, Advanced’s Purchase Order number and vendor’s certification or report number Upon
Upon acceptance of Advanced’s Purchase Order, Supplier acknowledges and agrees that Advanced is entitled to recover from Seller: reimbursement of Advanced’s labor and material costs associated with Supplier responsible non-conformances, and all other damages resulting therefrom, in addition to all other remedies stated or referenced in this Agreement.
Supplier is informed and acknowledges that Advanced uses standard coatings and sealants which are expected to be IPC-CC-830/MIL-I-46058 compliant, and when any workmanship is necessary are expected to comply with IPC-A-610 and IPC J-STD-001. Supplier agrees to provide Advanced with supplies and materials consistent with the above specifications, unless otherwise stated in the Purchase Order.
Supplier acknowledges and understands that It may become necessary for Advanced to request an exception to a stated requirement of its customers in processing a customer order. In that even Advanced will, in writing, designate the requirement to be excepted and the reasoning behind such request.
Advanced is ITAR registered, registration code M26606.
Advanced is certified to ISO 9001 and AS 9100.
Advance’s Source Inspection and/or Advanced’s customer verification may sometimes be required at Supplier’s facility prior to shipment of the materials or supplies from Supplier. If required Advanced will place an Inspection stamp on the shipment to signify Advanced’s acceptance of the material or supplies. To facilitate the above contact Advanced at least 48 hours prior to shipment from Supplier’s facility.
Likewise, Government Source Inspections may be required at Supplier’s facility prior to shipment of the materials or supplies. Supplier is advised to contact Advanced and any applicable governmental representatives to arrange for governmental acceptance in sufficient time to complete and ship the subject order of Advanced by the expected shipment date.
If required by the Purchase Order, Supplier shall perform and document a complete First Article Inspection Report(“FAIR”) per the requirements of AS9102, including all engineering and specification requirements. One copy of Supplier’s FAIR will be furnished to Advanced along with the first shipment under this Agreement.
If specified, Supplier shall provide Advanced with an Inspection Report identifying all engineering requirements and actuals. Use of AS9102 Form 3 or equivalent form of Advanced or Supplier is acceptable. At least one copy of the Inspection Report, per manufacturing lot and shipment, shall be furnished.
In either event, further details of this process may be inserted in, and governed by, the terms of the Purchase Order.
Additionally, Advanced, and any of Advanced’s customers who have had, or are having, goods ultimately coated with Supplier’s materials and/or supplies, and any applicable regulatory agencies, shall have the right to enter Supplier’s facilities at any point in time, upon reasonable notice to Supplier, in order to perform inspections to ensure current or previous compliance with the Agreement.
Packaging and Protection of the products shipped by Supplier shall be handled in accordance with the terms of Advanced’s Purchase Order to Supplier , or with the best commercial practices to protect the products from damage and/or deterioration-which ever protection methodology affords the greatest protection to the materials, supplies or products.
Shipment of the materials and/or supplies under the subject Purchase Order of Advanced shall be per the terms of said Purchase Order; and Supplier shall follow the method of shipment and other instructions on the Purchase Order. In any event, Supplier shall bear all risks and costs of damages or losses to the products shipped while in transit to Advanced.
Seller agrees to furnish the applicable material safety data sheet(s) (“MSDS”) along with each shipment, for those products designated by industry, state, or federal agencies as hazardous material.
Supplier acknowledges and agrees that it is aware that time is of the essence with respect to the expected delivery dates and times for the materials and supplies being ordered by Advanced from Supplier, so that Advanced can timely complete the underlying order(s) from Advanced’s own customers. Consequently, Supplier acknowledges and agrees that if Supplier does not strictly meet its required shipment and delivery dates to Advanced under Advanced’s Purchase Order that Advanced may cancel and terminate its order from Supplier, without any penalty, cost, expense, or liability to Advanced.
All the intellectual property rights to any inventions, improvements, modifications, or ideas made or conceived by Advanced or Supplier, shall exclusively belong to that respective party. Advanced and Supplier shall each retain all their own respective intellectual property rights. Supplier understands and agrees that any disclosure of any information to Supplier by Advanced, related to the coating process, or any modification or customization of the coating process, or materials and/or supplies used, as part of the services to Advances’ customers, will not confer any intellectual property rights to Supplier. This Agreement does not, and shall not be read or interpreted to, assign any intellectual property rights whatsoever to Supplier or Advanced. Advanced does not assign, transfer, and/or confer any intellectual property rights to Supplier as part of performing its services to customers of Advanced or ordering supplies or materials under this Agreement.
All Data (“Data” shall mean any and all data and records required to be made pursuant to the material or supplies ordered, or services being provided under, or as a result of, this Agreement, including but not limited to all reports, specifications, drawings, models, engineering work, and the like, whether in written printed, graphic, video or audio form, or maintained in any computer database or computer readable form, which are created as a direct result of the services provided, or materials or supplies ordered, by Advanced) shall be, and remain, the exclusive property of Advanced. Any copyrightable work, whether published or unpublished, created by Advanced in connection with or during the performance of any engineering work, or services by Advanced, shall belong exclusively to Advanced, and all right, title and interest therein, including, without limitation, worldwide copyrights, shall be the exclusive property of Advanced.
Please also see the Customer/Vendor Confidentiality Agreement that has been, or is being, executed by Supplier, which is hereby incorporated by this reference.
These provisions regarding ownership of intellectual property rights and confidentiality, and of the Customer/Vendor Confidentiality Agreement, shall survive the termination of this Agreement.
Supplier shall maintain documents regarding Advances’ Purchase Order for not less than 10 years from the date of shipment of the materials and/or supplies, or for longer if so stated in the Purchase Order requirements of Advanced; Supplier shall allow access to such records to Advanced and its customers, at any time, upon reasonable notice to Supplier.
In the event that it becomes necessary for Advanced to make any claims under any express or implied warranties against the manufacturer of any supplies or materials furnished by Supplier to Advanced under this Agreement or under any Purchase Order of Advanced, Supplier agrees that it will promptly assist Advanced in the filing and processing of any such express or implied warranty claims against such manufacturer(s), and agrees to provide any documents necessary to facilitate such warranty claims.
PLEASE READ THE FOLLOWING WARRANTIES CAREFULLY TO UNDERSTAND SUPPLIER’S RIGHTS AND OBLIGATIONS!
SUPPLIER HEREBY WARRANTS THAT THE SUPPLIES AND/OR MATERIALS FURNISHED BY IT TO ADVANCED UNDER THIS AGREEMENT AND ANY UNDERLYING PURCHASE ORDER(S) ARE: 1) MERCHANTABLE; AND 2) FIT FOR THE INTENDED PARTICULAR PURPOSES FOR WHICH THEY WILL BE USED.
FURTHER, NOTWITHSTANDING THE FOREGOING, NONE OF THE LIMITATIONS OF LIABILITY INFERRED IN THIS AGREEMENT EXCLUDES ANY PARTY’S LIABLITY FOR MATTERS THAT VIOLATE THE PUBLIC INTEREST, AND DO NOT APPLY TO EXEMPT EITHER PARTY FROM THEIR OWN FRAUD OR WILLFUL INJURY TO THE PERSON OR PROPERTY OF ANOTHER, OR VIOLATIONS OF LAW.
Supplier shall not be liable for any failure or delay in its performance under this Agreement due to direct, or indirect, causes (or the effects therefrom) which are beyond its reasonable control, including, but not limited to, acts of God, acts of civil or military authority, fires, epidemics, pandemics, floods, earthquakes, wind events, riots or civil unrest, insurrections, protests, wars, sabotage, labor shortages or disputes, strikes, lockouts or other labor difficulties, accidents, and/or governmental actions.
Supplier agrees to assume, and to pay all costs, attorneys’ fees, and expenses of, the defense of Advanced, and to fully indemnify and to fully hold Advanced harmless, in any threatened or actual legal proceeding naming Advanced as an actual or potential defendant, when the actual or threatened legal proceeding involves allegations of:
Within fifteen (15) days of the proper service of any summons and complaint, or of a written notice of threatened litigation, Advanced shall promptly deliver to Supplier and request in writing a defense and/or indemnification as provided herein. Advanced and Supplier agree to cooperate fully in the defense of such action, as Supplier may reasonably require. Advanced shall be entitled to retain counsel of its own choice, at the Supplier’s sole expense.
Supplier and Advanced unconditionally consent and agree that the jurisdiction and venue of any dispute between the parties regarding the construction, interpretation, performance, and rights and remedies under this Agreement, or any breach or threatened breach thereof, shall be exclusively resolved in a binding arbitration proceeding within San Bernardino County, California, U.S.A.
The Agreement shall be deemed to have been made and accepted, and is to be performed, in Rancho Cucamonga, San Bernardino County, California, U.S.A., and the construction, interpretation, performance, and rights and remedies under this Agreement shall be construed under and governed by the laws of the State of California, U.S.A., without regard to California’s internal choice of law rules.
This Agreement may be modified or amended if the modification is in writing and signed by both parties. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.
Advanced and Supplier hereby waive, to the extent permitted by law, the right to trial by jury, and instead Advanced and Supplier unconditionally consent and agree that the jurisdiction and venue of any dispute between the parties regarding the construction, interpretation, performance, and rights and remedies under this Agreement, or any breach or threatened breach thereof, shall be submitted and be subject to, the exclusive jurisdiction of the American Arbitration Association (“AAA”) for binding arbitration conducted under the AAA’s Commercial Arbitration and Mediation Rules then pertaining (available at www.adr.org), except as modified herein with respect to discovery, with a single neutral arbitrator. The arbitrator shall be selected within 30 business days from the date a party receives a demand for arbitration. The arbitration shall take place in the County of San Bernardino, State of California, U.S.A., and the arbitrator shall apply California law (enforcement of this arbitration provision shall also be governed by California law). Prior to the commencement of arbitration, emergency relief is available from any court to avoid irreparable harm.
The arbitrator shall have all of the same powers vested in a judge conducting a civil action in the Superior Courts of California. The arbitrator shall have the power to award all of the same remedies to either of the parties that would otherwise have been available to each of the parties in a civil action in such courts including the power to award provisional, injunctive, and equitable remedies.
The arbitrator shall be exclusively entitled to determine all questions and issues regarding the enforceability of this Agreement and whether any claims or controversies being asserted by any party are in fact subject to binding arbitration under the terms of this Agreement.
THE PARTIES HEREBY AGREE TO WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING, CROSS-COMPLAINT OR COUNTERCLAIM, WHETHER AT LAW OR EQUITY, REGARDLESS OF WHICH PARTY ORIGINALLY BRINGS SUIT. THIS WAIVER SHALL APPLY TO ANY MATTER WHATSOEVER BETWEEN THE PARTIES HERETO WHICH ARISES OUT OF OR IS RELATED IN ANY WAY TO THESE T&Cs OR RELATED PURCHASE ORDERS. SUPPLIER AND ADVANCED UNDERSTAND AND ACKNOWLEDGE THAT THEY ARE EACH WAIVING THEIR RESPECTIVE RIGHTS TO A JURY TRIAL AND THEY EACH UNDERSTAND THAT BY AGREEING TO FINAL AND BINDING ARBITRATION THROUGH THIS AGREEMENT THAT WE ARE EACH GIVING UP THEIR RIGHTS TO SUE EACH OTHER IN COURT FOR ANY AND ALL CLAIMS AND CONTROVERSIES WHICH ARE NOT SPECIFICALLY EXEMPTED UNDER THIS AGREEMENT.
THE PARTIES AGREE THAT EXCEPT FOR ANY POSSIBLE CLAIMS BROUGHT AS A REPRESENTATIVE ACTION BY EITHER PARTY UNDER “THE CALIFORNIA PRIVATE ATTORNEYS GENERAL ACT”(“PAGA”) ALL PROCEEDINGS ARISING OUT OF OR RELATED TO ANY ISSUE WHICH FALLS WITHIN THE SCOPE OF THIS AGREEMENT WILL BE CONDUCTED ON AN INDIVIDUAL, AND NOT ON A CLASS-WIDE, BASIS.
Each party shall be entitled to discovery of essential facts, documents, and witnesses, as determined by the arbitrator. Each party shall have the right to take depositions and to obtain additional discovery regarding the subject matter of the arbitration, and, use and exercise all of the same rights, remedies, and procedures, and be subject to all the same duties, liabilities, and obligations in said arbitration as they would otherwise be entitled to under the California Code of Civil Procedure. Each party is entitled to discovery sufficient to arbitrate their claims and defenses as determined by the arbitrator. The provisions of California Code of Civil Procedure § 1283.05 are hereby specifically incorporated into and made a part of this Agreement by this reference.
In addition to the policies provided in the above referred rules and procedures the arbitrator shall also have all the powers provided in California Code of Civil Procedure §§1282 through 1284.3 including, but not limited to the following powers:
To determine the enforceability of this Agreement and whether any issue or controversy between the parties is in fact subject to binding arbitration under the terms of this Agreement, or otherwise;
To issue subpoenas for the attendance of witnesses and subpoenas duces tecum for the production of books, records, documents, and other evidence;
To order depositions in the discovery process;
To order depositions to be used as evidence;
To enforce the rights, remedies, procedures, duties, liabilities, and obligations of discovery as if the arbitration were a civil action before a California Superior Court;
To conduct a hearing on the issues and claims which are in controversy;
To issue orders for provisional, injunctive, and equitable relief;
To consider and rule on all motions available under the Code of Civil Procedure as would be available in a normal court of law; and
To administer oaths to parties and witnesses.
This agreement to engage in binding arbitration proceedings shall be deemed self-executing, and in the event either party fails to appear at any properly noticed arbitration proceeding, an award may be entered against such party notwithstanding said party’s failure to appear.
As soon as practicable after the close of the arbitration hearing (but generally, no later than thirty (30) days thereafter) the arbitrator shall issue the arbitrator's final written decision including findings of fact and conclusions of law.
The parties agree that the arbitrator shall not award either party punitive, exemplary, INCIDENTAL, or multiplied damages.
The award of the arbitrator shall be enforced and is subject to judicial review pursuant to the provisions of California Code of Civil Procedure §§ 1283.4 through 1294.2.
Service and/or notice, for all aspects of the arbitration, including, but not limited to, the demand for arbitration, notice of hearing, notice of arbitration award, notice of ruling, the petition to confirm the arbitration award, notice of the hearing on the petition to confirm arbitration award, and notice of ruling on the hearing of the petition to confirm arbitration award, shall be deemed proper if service is made by first class mail at either the address of the parties as listed in this Agreement, or at the last known mailing address of either of the parties.
Any notice delivered to a party pursuant to this Agreement must be in writing and delivered personally or will be deemed to be delivered when deposited in the U.S. Mail, postage prepaid, registered or certified mail, return receipt requested, addressed to the Party at their last known address or at such other address that may have been specified by written notice delivered in accordance with this provision.
If to Advanced : If to Supplier
Advanced Coating to Supplier, or their agent’s,
10723 Edison Court last known address
Rancho Cucamonga, CA 91730
Attention: Steven J. Doltar
Toll free telephone:1.800.722.1444
Fax: 909.481.1427
If any legal action or any arbitration or other proceeding is brought for the enforcement or interpretation of this Agreement, or because of an alleged dispute, breach, threatened breach, default, or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing party or parties shall be entitled to recover their reasonable attorney's fees and other costs incurred in that action or proceeding, including arbitrator’s fees and arbitration fees and expenses, in addition to any other relief to which it or they may be entitled.
In the event of a breach or attempted breach of this Agreement, a party shall be entitled to all injunctive and equitable relief available to that party to enjoin the other party’s breach or possible future breach, in addition to all remedies available to the party at law. All remedies hereunder shall be cumulative.
If any provision of this Agreement is held to be illegal, invalid, or unenforceable under present or future laws, that provision will be removed from this Agreement and this Agreement will be interpreted and enforced as if the illegal, invalid, or unenforceable provision had never been a part of this Agreement and the remaining provisions will remain in effect and will not be affected by the illegal, invalid or unenforceable provision or its removal. Instead of the illegal, invalid or unenforceable provision, there will be added, as part of this Agreement, a provision as similar in terms to the illegal, invalid or unenforceable provision as may be possible and still be legal, valid and enforceable.
This Agreement shall be effective and shall be binding upon, and shall inure to the benefit of, each of the parties, and their respective affiliates, subsidiaries, successors, and assigns, and where applicable their respective heirs, executors, and administrators.
This Agreement, and any existing Advanced Quality Clauses and Customer/Vendor Confidentiality Agreements, constitute the entire understanding of the parties, and supersedes all prior agreements or understandings, whether written or oral, with respect to this subject matter. No terms, conditions, or warranties, other than those written, or referenced, in this Agreement, and no amendments or modifications of this Agreement will be binding on the parties unless in writing and signed by all the parties.
