Document #: F 8.4.1.01.01
Rev. Lv: 03
Phoenix Process Owner: Supply Chain Manager
1. GOVERNING PROVISIONS. This document is an offer by SHINE TECHNOLOGIES, LLC and/or its affiliates, including Phoenix, LLC and SHINE Europe B.V., (as applicable, “Purchaser”) to purchase the goods and/or services herein described, not a confirmation or acceptance of any offer to sell; and acceptance of this offer is expressly made conditional on assent to these terms and conditions and the other provisions contained in this document. Purchaser hereby objects to any additional or different terms contained in any of Seller’s quotation, acknowledgment, invoice or other forms, or in any other correspondence from Seller. These terms and conditions, as supplemented by the identification of purchased goods/services, prices, quantities, delivery dates, acceptance criteria, and specifications set forth or referenced in the purchase order into which these terms and conditions are incorporated (collectively, the “Agreement”), shall constitute the entire agreement between the parties on the subject of purchases by Purchaser from Seller, superseding all prior written and oral communications and negotiations. If not previously accepted, this offer expires 7 business days after its date or upon prior written notification thereof to Seller. EACH SALE BY THE SELLER TO THE PURCHASER SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF WISCONSIN, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS. THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL NOT BE GOVERNED BY THE PROVISIONS OF THE 1980 U.N. CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. Seller consents to the exclusive jurisdiction of the courts in Rock County, Wisconsin, for any legal or equitable action or proceeding arising out of or in connection with the Agreement. Seller specifically waives any and all objections to venue in such courts.
2. CHANGES IN ORDERS. Purchaser reserves the right at any time to make changes in any one or more of the following: (a) specifications, drawings and data incorporated in the Agreement where the items to be furnished are to be specially manufactured for the Purchaser, (b) methods of shipment or packing, (c) place of delivery, and (d) time of delivery. If any such change causes an increase or decrease in the cost of or the time required for performance of an order, an equitable adjustment shall be made in the contract price or delivery schedule, or both, or Purchaser may, at its option, cancel the order pursuant to paragraph 12 hereof if agreement on an equitable adjustment cannot be reached. Any claim by the Seller for adjustment under this paragraph shall be deemed waived unless asserted in writing within twenty (20) days after receipt by Seller of the change order. Price increases or extensions of time for delivery shall not be binding on Purchaser unless evidenced by a purchase order change notice issued and signed by Purchaser. No substitutions, changes or modifications of any ordered item shall be made except upon Purchaser’s written authority. Seller shall provide, in writing, advance notification to Purchaser of any change(s) to tooling, facilities, materials, or processes at Seller’s or Seller’s sub-tier that could affect Purchaser’s purchased goods or service. This includes, but is not limited to, changes in key staff positions assigned to Purchaser’s account, fabrication, assembly, handling, testing, facility location, or introduction of a new sub-tier supplier
3. DELIVERY, DELAY AND ANTICIPATION. The Seller shall deliver the goods in the quantities, and shall deliver the goods and/or provide the services within the time, which is of the essence, in accordance with the specifications, drawings or approved samples, and at the prices agreed. Failure of Seller to comply with such requirements shall entitle Purchaser, in addition to any other rights or remedies, to cancel all or part of any order and be relieved of all liability for any undelivered portion. In the event that, for reasons which are beyond Purchaser’s reasonable control, shipment is delayed beyond the last date on which shipment by the method contemplated herein would result in delivery guaranteed on or before the required delivery date herein, Seller shall make shipment by the most expeditious available method of transportation. Any additional cost of such method of shipment shall be borne by Seller. If shipment is delayed for any cause, the Seller must report the same to Purchaser promptly. Failure of Purchaser to insist upon strict performance shall not constitute a waiver of any of the provisions of any order or waiver of any default. Any failure by Purchaser to exercise its remedies with respect to any installment shall not be deemed to constitute a waiver with respect to subsequent installments. Seller shall not unreasonably anticipate delivery by purchasing materials or manufacturing quantities in excess of what is reasonably required to meet Purchaser’s delivery schedule. Items received in advance of Purchaser’s delivery schedule may, at Purchaser’s option, be returned at Seller’s expense or be accepted and payment withheld until the scheduled delivery date.
4. SHIPPING, PACKING AND RISK OF LOSS. The shipping terms for all goods purchased hereunder are DDP destination (as defined in Incoterms 2020). Purchaser shall have the right to route all shipments. All goods shall be suitably packed to maintain safe handling, marked with Purchaser’s purchase order number and shipped in accordance with shipping instructions specified herein and otherwise in accordance with the requirements of common carriers so as to obtain the lowest transportation cost. Packing slips must be included with all shipments showing purchase order number, manufacturer’s part number, Purchaser’s part number(s), quantity shipped, quantity on backorder, Harmonized Tariff Schedule Code, country of manufacture, and hazmat specific information and any pertinent special provisions in accordance with UCFR49, as required ; and the last copy must state “Order Completed”. A Certificate of Conformance and/or Analysis to verify compliance with purchase order requirements must accompany each shipment at no cost to Purchaser, when specified on the purchase order. If required, a statistical technique for product acceptance will be specified on the purchase order. The order number must be shown on each item, packing slip and invoice. No charge shall be made to Purchaser for boxing, packing, crating or carting unless separately itemized on the purchase order. In specified cases, Seller will use prescribed barcode labels to facilitate accurate and timely processing. Regardless of shipping terms, all risk that the ordered goods may be lost, damaged or delayed in transit shall be upon Seller until conforming goods have been actually received, inspected and accepted by Purchaser. In the event a non-conformance is discovered by Seller prior to shipment, Seller shall inform Purchaser and wait for Purchaser’s direction. In no event shall known non-conforming goods be shipped to Purchaser without Purchaser’s approval. Seller shall be liable to Purchaser for any loss or damage resulting from Seller’s failure to act so as to provide adequate protection during shipment. Any additional expenses, charges or claims incurred as a result of deviation from the specified route, noncompliance with other shipping instructions, or improper description of the shipment in shipping documents shall be assumed by Seller.
5. INSPECTION, ACCEPTANCE AND REJECTION. All goods purchased hereunder (and work-in-progress relating thereto) shall be subject to inspection, evaluation and testing by Purchaser (or its designee) at any reasonable time and from time to time before, during and after manufacture and delivery. If any inspection, evaluation or test is to be made on the premises of the Seller, Seller without additional charge shall provide all reasonable access, facilities and assistance for the safety and convenience of the inspectors in the performance of their duties. Notwithstanding prior inspections, all goods are subject to final inspection and approval/rejection at Purchaser’s plant or other place designated by Purchaser and, notwithstanding any payment that may be made, no goods are deemed accepted until such final inspection and approval. Purchaser’s inspection, evaluation or testing before, during or after manufacture and delivery shall not constitute a waiver of the right of subsequent rejection by reason of any undiscovered or latent defect. Purchaser may withhold payment or return rejected goods at Seller’s expense. Seller shall not replace goods returned as defective unless so directed by Purchaser in writing. If one of Seller’s suppliers is holding Purchaser’s product, inventory records must be supplied to Purchaser on request.
6. WARRANTIES, REMEDIES. Seller warrants that the goods and services to be furnished hereunder shall (a) be free and clear of all liens and encumbrances, good and merchantable title thereto being in the Seller; (b) be free from any defects in design, material or workmanship (latent or otherwise) and of good and merchantable quality; (c) for applicable goods, not (i) be adulterated or misbranded within the meaning of the U.S. Food, Drug, and Cosmetic Act, as amended (hereinafter, the “Federal Act”) (or similar law of the applicable country) or within the meaning of any state statutes or other applicable laws which have adulteration and misbranding provisions similar to those found in the Federal Act, or (ii) contain articles or ingredients that may not be introduced into interstate or intrastate commerce under the Federal Act (or similar law of the applicable country) or under other federal, state or local laws; (d) for applicable goods, have been produced in accordance with any applicable good manufacturing practices established by the U.S. Food and Drug Administration (or similar body of the applicable country, state or region); (e) be new, and not used, refurbished or reconstituted; (f) conform to Purchaser’s specifications or the sample approved by Purchaser, and with representations with respect thereto previously made by Seller, to the extent any of the foregoing are applicable, as the case may be, and be fit for the use intended by Purchaser; and (g) comply and have been produced, processed, packaged, labeled, performed, delivered and sold in conformity with all applicable federal, state, local and other laws, regulations and orders of the U.S. and other applicable countries, including the Federal Act (or similar law of the applicable country), all laws and regulations prohibiting human trafficking, the use of forced labor, bonded labor, indentured labor, involuntary prison labor, slavery or trafficking in persons, and the Occupational Safety and Health Act of 1970, as amended (or similar law of the applicable country). The foregoing warranties shall survive inspection, delivery and payment, and shall run in favor of Purchaser, its successors and assigns and its customers, whether direct or indirect. Seller shall learn the particular purposes for which all goods/services purchased by Purchaser are required, and shall utilize its skill and judgment to select and furnish suitable goods/services; Seller acknowledges that Purchaser is relying on Seller to do so. If any such goods shall be found to be unsatisfactory, defective or inferior in quality, or not to conform to Purchaser’s specifications or any other requirements hereof (including Seller’s warranties), Purchaser may, at its option and in addition to its other remedies, retain such goods at an adjusted price, hold such goods at Seller’s risk and expense pending Seller’s specific instructions, or return them to the Seller for replacement, credit or refund, as Purchaser shall direct. Purchaser shall also have the right to cancel any unshipped portions of any order. Purchaser shall be reimbursed by Seller for all of its costs and expenses in connection with the inspection, storage, handling, packing and/or transporting of any such defective or otherwise nonconforming goods, and Seller shall assume all risk of loss or damage in transit to goods returned by Purchaser pursuant hereto.
7. INDEMNIFICATION BY SELLER. Seller shall indemnify Purchaser, its successors, assigns, and customers (whether direct or indirect) against any and all losses, liabilities, damages and expenses (including attorneys’ fees and other costs of defending any action) which they, or any of them, may sustain or incur as a result of any claim of negligence, breach of warranty or contract, personal injury or death, patent, copyright, trade secret or trademark infringement, strict liability in tort, or based on any other theory of law or equity, arising from or in connection with the goods/services furnished by Seller hereunder, or as a result of any claim that the goods/services furnished by Seller fail to conform to or comply with any applicable federal, state or local laws, regulations, orders or standards, or based upon or arising out of any construction, installation, services or facilities furnished by Seller under or in connection with any order.
8. PURCHASER’S DAMAGES. Seller shall be responsible for any and all losses, liabilities, damages and expenses, including incidental and consequential damages, and including attorneys’ fees and other costs of prosecuting an action for breach, which Purchaser may sustain or incur as a result of any breach of contract or warranty by Seller.
9. PATENTS, TRADEMARKS AND COPYRIGHTS. Seller warrants that the sale or use of goods or services furnished hereunder will not infringe or contribute to infringement of any patent, copyright, trademark, trade secret or other proprietary right or subject Purchaser or its customers (direct or indirect) to royalties in the United States or elsewhere, and Seller shall indemnify and save harmless Purchaser, its successors and assigns and its customers (whether direct or indirect), against any and all losses, liabilities, damages and expenses (including attorneys’ fees and other costs of defending any infringement action) which they, or any of them, may sustain or incur as the result of a breach of this warranty.
10. FAIR LABOR STANDARDS CERTIFICATE. Seller hereby certifies that all goods and services furnished hereunder shall have been produced and performed in compliance with all applicable requirements of Sections 6, 7, 12, 13, 15 and 18 of the Fair Labor Standards Act of 1938, as amended, and of regulations and orders of the U.S. Department of Labor issued under Section 14 thereof, and in accordance with all applicable local, state and federal laws, orders and regulations governing general conditions for labor employed in the production of such goods/services.
11. NON-ASSIGNABILITY. Seller shall not assign or sublet the work to be done hereunder without the prior written consent of Purchaser, but this provision shall not restrict Seller in the procurement of component parts or materials. If any order shall be cancelled by Purchaser without cause, Purchaser’s liability to the Seller with respect to such parts or materials shall not exceed the amount for which Seller would be liable to its supplier(s) if such liability were determined on the basis of paragraph 12 hereof. Seller must avoid all conflicts of interest or situations giving the appearance of a conflict of interest in Seller’s dealings with Purchaser. Seller must report to Purchaser any instances involving actual or apparent conflicts of interest between their interests and those of Purchaser, such as when one of Seller’s employees (or someone close to one of their employees) has a personal relationship with a Purchaser employee who can make decisions impacting Seller’s business, or when a Purchaser employee has an ownership or financial interest in Seller’s business.
12. CANCELLATION BY PURCHASER. Purchaser shall have the right to cancel any order without cause, and Purchaser’s liability for such cancellation shall be limited to the Seller’s out-of-pocket cost for work and materials applicable solely to the cancelled order which shall have been expended when notice of cancellation shall be received by Seller, reduced by the fair market resale value of such work-inprocess. Purchaser may, at its option, cancel any order without liability to Seller (except for conforming shipments previously accepted by Purchaser) in the event Seller shall cease to exist or become insolvent or the subject of bankruptcy, receivership or insolvency proceedings or shall commit a material breach in the performance of any part of its obligations hereunder.
13. PURCHASER’S PROPERTY; TOOLS, DESIGN WORK, DRAWINGS, SPECIFICATIONS AND TECHNICAL INFORMATION. Purchaser shall have no obligation to furnish or pay for any design work, drawings, tools or other equipment required for the performance of any order; provided, however, that Purchaser may, at its option, purchase any such items especially required by Seller for any order at the then-current value thereof on Seller’s books for income tax purposes and any item so purchased shall be deemed furnished to Purchaser hereunder. Any design, drawing, specification, photograph, tool or other equipment, material, part, or engineering or manufacturing information heretofore or hereafter furnished to Seller by Purchaser, or the cost of which shall have been paid by Purchaser or included in the aggregate price of any order, whether or not separately itemized thereon, shall be and remain Purchaser’s property, shall be conspicuously identified as such in Seller’s records and by physical marking thereon, shall be promptly delivered to Purchaser upon request, shall be treated as confidential information of Purchaser, shall not be used in processing or manufacturing goods for anyone other than Purchaser and, while in the possession of Seller, shall be Seller’s responsibility and shall be adequately insured at Seller’s expense for the benefit of Purchaser against loss or damage by fire or any other hazard. No change shall be made in any design, drawing, specification, tool or other equipment furnished by Purchaser without Purchaser’s express written consent. Any information which Seller may disclose to Purchaser with respect to the design, manufacture, sale or use of the items covered by any order shall be deemed to have been disclosed as part of the consideration for that order, and Seller shall not assert any claim (other than a claim for patent infringement, if applicable) against Purchaser by reason of Purchaser’s use thereof.
14. FORCE MAJEURE; ALLOCATION OF LIMITED SUPPLY. Purchaser shall not be liable for any damage as a result of any delay in accepting or failure to accept delivery due to any act of God, act of Seller, embargo or other governmental act, regulation or request, fire, flood, accident, strike, slowdown or other labor difficulties, war, riot, terrorist act, delay in transportation, defaults of common carriers, inability to obtain necessary labor, materials, or manufacturing facilities or, without limiting the foregoing, any other delays beyond Purchaser’s control which shall affect Purchaser’s ability to receive and use the goods or services ordered. In the event of any such delay, the date of delivery shall be extended for a period equal to the time lost because of the delay. Seller will allocate any limited supply of the goods covered by the Agreement to the fulfillment of its obligations under the Agreement before allocating any such supply to its other customers or to Seller’s use in its own operations.
15. TAXES. Purchaser shall not be liable for any federal, state or local taxes, duties, customs or assessments in connection with the sale, purchase, transportation, use, or possession of the goods/services ordered hereunder.
16. REMEDIES CUMULATIVE. The rights and remedies of Purchaser set forth herein shall be in addition to any rights or remedies which Purchaser may otherwise have.
17. COMPENSATION TO PURCHASER’S AGENTS. No employee or agent of Purchaser is permitted to solicit or accept any compensation or payment from Seller or any other supplier, however characterized, in connection with the placement of any order; and any rebate, discount, incentive or other amount offered in that connection shall be separately itemized in Seller’s invoice.
18. INGREDIENTS DISCLOSURE AND SPECIAL WARNINGS AND INSTRUCTIONS. If requested by Purchaser, Seller shall promptly furnish to Purchaser in such form and detail as Purchaser may direct, if applicable: (a) a list of all ingredients or components in the goods purchased hereunder; (b) the amount of one or more ingredients or components in such goods; and (c) information concerning any changes in or additions to such ingredients or components. Prior to and with the shipment of goods purchased hereunder, Seller agrees to furnish to Purchaser sufficient warning and notice in writing, including appropriate labels on goods, containers and packaging, of any hazardous material which is an ingredient or a part of any of the goods, together with such special handling instructions as may be necessary to advise carriers, Purchaser and their respective employees and agents of how to exercise that measure of care and precaution which will best prevent bodily injury or property damage in the handling, transportation, processing, use, sale or disposal of the goods, containers and packaging shipped to Purchaser.
19. ANTITRUST ASSIGNMENT. Purchaser and Seller recognize that in actual economic practice, overcharges resulting from antitrust violations are in fact usually borne by the purchaser. Therefore, Seller hereby assigns to the Purchaser any and all claims for such overcharges as to goods, materials or services purchased under or in connection with the Agreement.
20. GENERAL REQUIREMENTS. Seller shall adhere to the following quality assurance program clauses of Purchaser: (a) Seller shall allow access to its facilities and records for surveillance, inspection, or assessment from time to time by Purchaser, its designated representative, and others authorized by Purchaser; (b) Documentation required to be submitted for information, review, or approval by Purchaser shall be identified. Where applicable, the time of submittal shall also be established. When Purchaser requires the Seller to maintain specific records, the retention time and disposition requirements shall be prescribed; (c) Seller shall be required to report nonconformances to Purchaser; (d) Information submitted is subject to export control; (e) The procurement documents shall state that supplied documents used for or in support of NRC licensing activities shall have supporting validation documentation; (f) Seller shall validate any process for production or provision of service where the resulting output cannot be verified by subsequent monitoring or measurement and shall demonstrate the ability of such processes to achieve planned results; and (g) all work performed by Seller under the Agreement will be performed by competent and qualified personnel. Seller shall ensure personnel are aware of (1) their contribution to product or service conformity; (2) their contribution to product safety; and (3) their obligation to perform ethically at all times. Seller shall, for a period of seven (7) years following the provision of goods or services under the purchase order, retain (a) all records associated with the purchase order, (b) all records of process validation pursuant to Section 20(f) above, and (c) all manufacturing records, including (i) completion date, as well as authorization of any additions or corrections, drawings, specifications, and purchase orders; (ii) record of industry specifications referenced during manufacturing; (iii) all handwritten entries, which shall be in black or blue ink and in legible handwriting; and (iv) all corrections, which shall be indicated by a single line through the incorrect entry, so as not to obscure the original entry, and initial or stamped with the correct entry (use of pencil or correction fluid is strictly prohibited). All records and documentation shall be made available to Purchaser upon request.
21. VALIDATION. All deliverables provided to Purchaser that have been designated by Purchaser as directly supporting a Licensing Action under review by the U.S. Nuclear Regulatory Commission shall include an annotation for each verifiable statement within the deliverable which identifies the source document providing the basis for that statement.
22. NON-TRAVEL EXPENSES. Seller shall be responsible for ordinary and out-of-pocket expenses, including but not limited to office space rent, utilities, liability insurance, office supplies and all other company overhead business expenses and general and administrative expenses, unless otherwise agreed to by the parties in writing.
23. RAW MATERIALS MANAGEMENT DURING OPERATIONS (TSE AND BSE). Purchaser is responsible for management of any raw materials known to be derived from or exposed to human or animal origin materials during the final manufacturing process in relation to Transmissible Spongiform Encephalopathy (TSE) and Bovine Spongiform Encephalopathy (BSE), as applicable. TSE includes BSE and any other forms of animal or human spongiform encephalopathies, TSE-associated prion proteins, and any other material associated with TSE.
24. USAGE OF WOODEN PALLETS DURING OPERATIONS. If the material supplied by Seller to Purchaser is on wooden pallets, Seller shall ensure that the pallets are certified heat treated (HT), having each pallet stamped with the HT certification, and that the pallets were manufactured according to the International Standards for Phytosanitary Measures (ISPM) 15 “Regulation of Wood Packaging Material in International Trade”, developed by the International Plant Protection Convention (IPPC) and with no additional chemical treatments with any halogenated phenolic preservative (including Methyl Bromide). When appropriate, Seller shall ensure that no chemically treated lumber is used in the manufacture of the wood pallets used at its facilities and that materials shipped to Seller on wooden pallets meet ISPM 15 standards. Pallets must be heat treated or made of plastic. Seller shall have procedures to control the use of pesticides in its warehouses and pallet storage areas to prevent possible cross contamination with 2, 4, 6 Tribromophenol (TBP) or other chemicals used for pest fumigation and flame retardant.
25. COMPLIANCE WITH LAWS; EQUAL EMPLOYMENT OPPORTUNITY. Seller shall comply, and shall cause each of its employees, agents and subcontractors to comply, with all applicable federal, state, local and foreign laws, regulations, rules, codes, orders and standards, including the U.S. Foreign Corrupt Practices Act, as amended, and anti-bribery and anti-discrimination laws and regulations, during and in connection with the performance of the Agreement. Without limiting the generality of the preceding sentence, where applicable, Seller shall abide, and shall cause each of its subcontractors to abide, by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a), 60-741.5(a) and 29 CFR Part 471, Appendix A to Subpart A. These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender, gender identity or expression, martial status, veteran status, disability, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity or expression, national origin, protected veteran status or disability. Seller shall include this paragraph in each subcontract it issues. Seller shall also remain in compliance with all environmental, health, safety and labor laws, regulations, rules, codes, orders and standards applicable to the operation and use of the facilities at which goods and/or services covered by the Agreement are manufactured, stored or performed.
26. COUNTERFEIT PARTS PREVENTION. The Seller warrants that counterfeit materials shall not be supplied to Purchaser or installed in Purchaser’s products by the Supplier. The Seller warrants that only new, unused, authentic, genuine and legitimate Items shall form part of the materials supplied to Purchaser. Seller will be held liable for damages incurred due to the use counterfeit materials from Seller. Where applicable, suppliers to Purchaser are encouraged to maintain a counterfeit part prevention process.