GOODMAN NETWORKS, INC. TERMS AND CONDITIONS OF PURCHASE (Form TC2011a)
1. General. The Purchase Order, together with these terms and
conditions, and any attachments, exhibits, specifications, drawings, notes,
instructions and other information, whether physically attached or
incorporated by reference (collectively the “Purchase Order”), constitutes
the entire and exclusive statement of agreement between Goodman
Networks, Inc. (Goodman Networks) and the Supplier (“Supplier”), and
supersedes any previous written or oral communications or understandings
between the parties. Goodman Networks’ submission of the Purchase
Order is conditioned on Supplier’s agreement that any terms different from
or in addition to the terms of the Purchase Order, whether communicated
orally or contained in any purchase order confirmation, invoice,
acknowledgement, release, acceptance or other written correspondence,
irrespective of the timing, shall not form a part of the Purchase Order, even
if Supplier purports to condition its acceptance of the Purchase Order on
Goodman Networks’ agreement to such different or additional terms. As
such, any additional or different terms or conditions stated by Seller are
hereby objected to and shall be void unless expressly agreed to in writing
by Goodman Networks. Supplier’s acceptance, acknowledgement of the
Purchase Order, or commencement of performance constitutes Supplier’s
acceptance of these terms and conditions. Notwithstanding the foregoing, if
Goodman Networks and Seller have entered into a separate agreement
with respect to Goodman Networks’ purchase of the Goods and/or
Services, then the agreement shall govern Goodman Networks’ purchase
of such Goods and/or Services; in the event of any inconsistencies between
the terms of the agreement and the Goodman Networks Terms and
Conditions of Purchase or the Purchase Order, the terms of the agreement
shall prevail.
2. Rescheduling, Cancellation and Return. Upon the request of
Goodman Networks, Supplier shall use reasonable efforts to accelerate the
delivery date for any Product (the “Product”) or the performance schedule
for any Service. Goodman Networks may, at no cost, delay the delivery
date for any Product or the performance schedule for any Service by the
delivery to Supplier of notice to such effect at any time prior to the originally
scheduled delivery date. Goodman Networks may, at no cost, cancel the
sale of any quantity of any Product or the performance of any Service by
the delivery to Supplier of notice to such effect at any time prior to the
scheduled delivery date. Goodman Networks may, at no cost, return any
product, that is in new condition, for a full refund within 120 days of receipt
of such product.
3. Prices. The price of each Product and Service is set forth in the
Purchase Order. Those prices do not include any foreign, federal, state or
local sales, use or excise taxes, duties, fees or similar charges imposed
upon the sale, delivery or use of any Product provided under a Goodman
Networks Purchase Order. Supplier is responsible for any foreign, federal,
state or local sales, use or excise taxes, duties, fees or similar charges
imposed upon the sale, delivery or use of any product provided under a
Goodman Networks Purchase Order unless Goodman Networks agrees in
writing to be responsible for such taxes, duties, fees, or charges in advance
of supplier shipment in fulfillment of a Goodman Networks Purchase Order.
4. Payment. Upon delivery of any Product, Supplier shall provide to
Goodman Networks an invoice that sets forth the date, the name and
address of Supplier, the Purchase Order number, a detailed description of
the ordered Product (including Goodman Networks’ part number, the
Supplier’s part number and description and, if applicable, any marks,
numbers, symbols or trade names used by Supplier to the trade), the
Purchase Order line number of each product supplied, the quantity shipped,
the delivery destination, the method of shipment, the price), the payment
terms, the country of origin, the number of packages and the way bill
number. Upon the completion of the performance of any Service, Supplier
shall deliver to Goodman Networks an invoice that sets forth the date, the
name and address of Supplier, the Purchase Order number, a detailed
description of the ordered Service (including a description of any Product
delivered to Goodman Networks), the price (including an itemization of all
applicable other charges) and the payment terms. Goodman Networks
shall pay to Supplier the amount due under each undisputed invoice within
the payment terms set forth in the purchase order after the later of (i)
receipt of goods or services; (ii) receipt of invoice; or (iii) the delivery date
set forth in the Purchase Order for the Product.
5. Shipping, Delivery and Quality. Time and date of deliveries and
performance are of the essence on Goodman Networks’ Purchase Orders.
Supplier shall deliver the ordered quantity of each Product so that it arrives
at Goodman Network 's dock at the delivery destination set forth in the
Purchase Order no more than three business days prior to, and no later
than the delivery date set forth in the Purchase Order. Goods delivered
more than three days prior to delivery date set forth in the Purchase Order
may be rejected or returned to Supplier at Supplier’s expense. Supplier
shall ship each Product in accordance with the method of shipment set forth
in the Purchase Order and shall comply with any and all local and federal
regulations with regard to the shipment of goods. Upon the request of
Goodman Networks, Supplier shall deliver to Goodman Networks, in the
manner that Goodman Networks reasonably requests, any United States
customs and other similar documentation and information regarding any
Product delivered to Goodman Networks, including without limitation
certificates of origin and drawback documentation and information.
Supplier shall comply with Goodman Networks’ specified requirements
as well as all telecom and other industry standards applicable to the
Products. Supplier shall not deliver to Goodman Networks any Product
(other than any Product that has been repaired and returned under
Agreement with Goodman Networks) that has been used by any end
customer. Supplier shall deliver to Goodman Networks all change or
discontinuation notices relating to any Product as far in advance of the
implementation of the change or discontinuation as practicable by
electronic transmission at an address designated by Goodman Networks.
Goodman Networks reserves the right to make final inspection of the
Goods and Services after receipt by Goodman Networks and in addition to
any other right and remedies available under law, to cancel Purchase
Orders and reject Goods or Services upon any default by Supplier in
meeting or satisfying delivery/completion dates, scheduled amounts,
specifications, quality, or performance. Rejected Goods may be returned to
Supplier for correction, replacement or credit, at the option of Goodman
Networks. Supplier shall bear all risks and expenses for returns including,
but not limited to, storage, freight, insurance, and packaging.
Goodman Networks shall have the right, upon reasonable advance
notice and during normal business hours to inspect Supplier’s premises and
operations which pertain to Goods and Services ordered by Goodman
Networks Purchase Order to insure conformity with specifications,
adequate quality control and ability to meet designated delivery and
completion dates.
6. Packaging. Supplier shall package each Product in accordance
with commercial standards customarily applicable to similar goods and in a
manner suitable for providing protection for each Product in shipment and
storage. Unless otherwise agreed to in writing by the parties, no charge
shall be made for cartons, wrappings, boxing, or crating. Supplier shall
attach to the exterior of each shipment of any Product a detailed packing
list that sets forth a detailed description of the shipped Product (including
the Supplier’s part number and description), the Goodman Networks part
number, the quantity shipped, the Purchase Order number and
corresponding line item number on the Purchase Order.
7. Notification of Hazardous Product. Supplier hereby agrees to
notify Goodman Networks of any inherent hazard related to the Goods
being purchased that would expose the hazard during: handling;
transportation; storage; use; resale; disposal; or scrap. Said notice shall
specify: the product name and Goodman Networks’ and Supplier’s part
number; the nature of the hazard; proper precautions that must be
undertaken by Goodman Networks or others; and any additional
information that Goodman Networks should reasonably know to protect its
interests.
8. Transfer of Title and Risk of Loss. Supplier shall transfer to
Goodman Networks all of Supplier's right, title and interest in and to each
Product, free and clear of any security interest, lien or other encumbrance,
upon delivery of the Product in an undamaged condition to Goodman
Networks’ dock. Supplier is responsible for obtaining any insurance related
to product shipment or transportation as well as the cost of such insurance.
If Supplier elects to assert any claim against any carrier to recover any loss
to any Product, then Goodman Networks shall cooperate with Supplier in
connection therewith.
9. Performance. Supplier shall perform Services in accordance with
the performance specifications and schedule set forth in the Purchase
Order. Supplier shall perform the Services in a good and workmanlike
manner and otherwise in accordance with the generally accepted standard
of care applicable to the performance of similar services.
10. Insurance. Supplier agrees to maintain in regard to any Services
on the Purchase Order the following insurance policies through an
insurance carrier possessing at least an A.M. Best Rating of "A-": (i)
statutory Workers' Compensation insurance for its employees, including
occupational disease coverage, as required in the jurisdiction in which the
work is to be performed and Employer's Liability insurance with limits of at
least $1 million bodily injury each accident or illness; (ii) Commercial
General Liability insurance, including products and completed operations
and contractual liability coverage, written on an "occurrence" basis with a
combined single limit of at least $1 million per occurrence and in the
aggregate for bodily injury and property damage liability; (iii) Automobile
Liability insurance coverage all owned, non-owned and hired automobiles,
with a combined single limit of at least $1 million per accident for bodily
injury and property damage liability (this coverage shall be required if the
Supplier operates a vehicle to perform work under this Purchase Order on
Goodman Networks' or Goodman Networks’ customer's premises); and (iv)
Property insurance for loss or damage to property furnished by Goodman
Networks in an amount equal to the replacement value. Supplier's
insurance shall be primary and non-contributory to any insurance or selfinsurance maintained by Goodman Networks when responding to Seller's
obligation to defend and indemnify Goodman Networks. With the exception
of (i) above, Supplier shall include Goodman Networks as an additional
insured to the extent claims arise from Supplier's activities performed under
Purchase Order. After receipt of the Purchase Order, Supplier shall furnish
a certificate of insurance evidencing the insurance coverage stipulated
above and shall provide at least thirty (30) days prior written notice if the
required insurance is cancelled or materially altered.
proceeding with counsel reasonably satisfactory to Goodman Networks. In
addition, at its option, Goodman Networks may engage, at its own expense,
separate counsel to appear on its behalf in such action or proceeding
without waiver of its rights or Supplier’s obligation hereunder.
11. Warranty. Supplier warrants that the Goods provided in fulfillment
of Purchase Orders shall be (i) in full conformity with all specifications,
drawings, and/or other descriptions or samples, (ii) merchantable, (iii) fit for
their intended purposes, (iv) free from defects in design, materials and
workmanship, and (iv) free of any lien, encumbrance or other defect in title.
Supplier warrants that any Services provided hereunder shall be performed
in a good, workmanlike and professional manner in compliance with all
applicable laws and regulations, any written instructions provided by
Goodman Networks, and the highest standards in the industry for
performing services of a similar nature. Such warranties shall be in addition
to any other warranties given by Supplier or Original Equipment
Manufacturer, shall survive inspection, acceptance and payment therefor
and shall run to Goodman Networks, its successors, assigns and
customers. Goodman Networks may, at its option, either obtain a full refund
of all amounts paid to Supplier related to the Purchase Order or require
prompt correction or replacement of defective or nonconforming Services,
Goods or Products, which rights shall be in addition to such other rights as
Goodman Networks may have under applicable law.
15. Compliance with Laws. Each party shall comply with all applicable
laws and regulations in connection with the performance of its rights and
obligations under this Agreement. The Executive Order 11246 dated
September 24, 1965, the Rehabilitation Act of 1973, the Vietnam Era
Veterans Readjustment Assistance Act of 1974, and any amendments
thereto or regulations thereunder, are incorporated herein by reference.
The indemnification and hold harmless obligations of this paragraph
shall survive completion, expiration or termination of the Purchase Order.
14. Governing Law, Jurisdiction and Venue. This Agreement shall be
governed by and construed In accordance with the laws of the State of
Texas, without giving effect to the principles of conflicts of laws thereof.
Supplier hereby (i) submits to the personal jurisdiction of the federal and
state courts located in the State of Texas with respect to any legal
proceeding arising out of any dispute relating to this Agreement and
(ii) stipulates that venue for the legal proceeding may be in Dallas County
or Collin County, Texas.
16. Waiver. Failure or delay on the part of Goodman Networks to
exercise any right, power or privilege hereunder shall not operate as a
waiver thereof.
17. Attorney’s Fees. In the event that Goodman Networks brings suit
against Supplier to enforce performance of any provision hereof then
Supplier shall be liable for all of Goodman Networks costs and expenses,
including reasonable attorneys’ fees.
18. Improper, Payments, Kickbacks, Gifts, Gratuities, Etc. In fulfilling
the terms of this Purchase Order, Supplier shall not make payment of any
salary, fee, commission or compensation of any kind, or grant any gift or
gratuity of any kind, either directly or indirectly, to any officer, director,
employee, agent or representative of Goodman Networks. In the event
Supplier violates the terms of this section, then all payments due Seller
under the Purchase Order shall be forfeited and Goodman Networks shall
have the right to immediately terminate the order.
12. Seller’s Certifications. The Seller certifies that the Goods,
Services or other materials, parts and/or equipment supplied under this
Purchase Order shall fully comply with all applicable Federal, State and
local laws, regulations, rules and ordinances, including, without limitation,
the requirements of the Occupational Health and Safety Act of 1970, as
amended, the Fair Labor Standards Act of 1938, as amended, the Clean Air
Act of 1993 (CFC Labeling), as amended, and the regulations issued
pursuant to said Acts or in connections therewith. The Seller further certifies
that it follows Good Manufacturing Practices to the extent applicable.
Acceptance by the Seller of this Purchase Order shall constitute such
certification of compliance with all of the foregoing.
19. Publicity. Except as otherwise required by applicable law, neither
party shall issue or cause the issuance of any press release or other
publication of the existence of this Agreement or the transactions
contemplated hereby, without the prior consent of the other party.
20. Assignment.Neither party shall assign any of its rights, or delegate
any of its obligations, under this Agreement, without the prior consent of the
other party; provided, however, that either party may assign any of those
rights, or delegate any of those obligations, to any affiliate of that party
without the consent of the other party.
13. Infringement and Indemnification. Supplier shall defend and hold
harmless Goodman Networks, its subsidiaries and affiliates, and their
respective customers, from all expenses, liabilities and losses of any kind
(including attorneys’ fees), growing out of claims, suits or proceedings
alleging any patent, trademark, or copyright infringement arising from the
manufacture, sale or use of any Goods ordered or Services provided in
fulfillment of the Purchase Order. Supplier shall promptly assume the
defense of any such claim, suit or proceeding and shall pay all costs,
damages, royalties or profits which may be decreed or awarded against
Goodman Networks, its subsidiaries, affiliates, agents or customers in
connection therewith. Supplier shall, at its own cost and expense, either
procure for Goodman Networks the right to continue using the Goods or
Services or any part thereof, or modify the Goods or Services so that they
become non-infringing, provided that such modified Goods or Services shall
conform in every respect to the applicable specifications and terms and
conditions of the Purchase Order. If neither of these alternatives is possible,
then Supplier shall promptly refund to Goodman Networks the purchase
price paid for such Goods, Products or Services.
21. Relationship of the Parties. Supplier shall perform its obligations
under this Agreement as an independent contractor of Goodman Networks.
Nothing contained in this Agreement is intended or shall be construed to
create any partnership, joint venture or agency relationship between the
parties. Nothing contained in this Agreement is intended or shall be
construed to confer upon or give any person or entity other than the parties
any rights under or by reason of this Agreement.
22. Confidential: Unless required by law, court order or regulation, the
Purchase Order shall be kept confidential and not made known to others
without the written approval of Goodman Networks.
23. Subcontracting: Supplier may not subcontract its obligations
under the Purchase Order without written agreement of Goodman
Networks. To the extent any of its obligations are subcontracted, Supplier
shall remain responsible for the acts and omissions of its subcontractors.
24. Records Retention / Audit: Supplier shall retain all the documents
it generates and related materials for a period of four (4) years and shall
make them available for Goodman Networks or its designee for audit.
Supplier shall also cooperate with Goodman Networks or its designee in
any such audit request.
Supplier shall indemnify and hold harmless Goodman Networks, its
subsidiaries and affiliates, and their respective officers, directors,
employees, agents and customers, from all other claims, demands,
liabilities, costs and expenses (including attorneys’ fees) arising from any
actual or alleged (i) defect in the Goods or Services provided by Supplier
hereunder, (ii) failure of the Goods or Services to comply with all
specifications or with the express or implied warranties of Seller, or (iii)
Supplier’s violation of any statute, ordinance, rule or regulation in the
manufacture, sale, delivery or completion of the Goods or the provision of
the Services.
Supplier shall indemnify and hold Goodman Networks, its officers,
directors, employees and agents, harmless from and against any and all
loss, damage, liability or expense resulting from damage to property of a
third party, or injuries, including death, to third parties to the extent caused
by a negligent act or omission of the Supplier, its subcontractors, agents or
employees. Supplier, upon notice from Goodman Networks, shall resist and
defend, at Supplier’s sole cost and expense, any such action or
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