Senah, Inc. & HZG Terms and Conditions of Purchases

The terms and conditions set forth herein are applicable to the Purchase Order (“PO”) issued by Senah, Inc., and by accepting the Purchase Order Supplier agrees that it has read, understand, and agrees to be bound by these terms and conditions.

Any communications transmitted electronically (e.g., via facsimile or email) (i) shall be considered a “writing” or “in writing,” (ii) shall be deemed “signed” if a signature is affixed that is valid in accordance with applicable law (including a valid electronic signature), and (iii) will constitute an “original” when printed. Communications introduced as evidence on paper will be admissible to the same extent and under the same conditions as other business records originated and maintained in documentary form and admissibility shall not be contested on the basis that the communication was not originated or maintained in documentary form.

1. Notices

All communications from Supplier to SENAH, INC. relating to the PO and these terms and conditions shall be addressed to SENAH, INC.’s representative identified on the PO.

2. Supplier Responsibilities.

Supplier shall use commercially reasonable efforts (i) to provide to SENAH, INC. the goods and services ordered in accordance with the terms stipulated in the PO and the applicable, if any, supply, service or other agreement pursuant to which the PO was issued; (ii) to keep SENAH, INC. advised of the status of the PO; (iii) to permit duly authorized representatives of SENAH, INC. to review and observe, from time to time upon reasonable notice, the delivery of the goods and services; (iv) to provide SENAH, INC. with such reports as are appropriate to the nature of the goods and services ordered and as may be reasonably requested by SENAH, INC. from time to time; and (v) to keep, for orders requiring payment based on hours worked, cost of materials used and/or expenses incurred, records of hours worked, cost of materials used, and reasonable out-of-pocket expenses incurred in fulfilling the PO, which records SENAH, INC.’s duly authorized representatives may examine from time to time upon reasonable notice.

3. Acknowledgment

The shipment of any goods or the furnishing of any services (or delivery of any deliverable arising therefrom), shall constitute acceptance by Supplier of the PO and each and all of the terms and conditions stated herein. If Supplier objects to any of the terms and conditions hereof, it shall notify SENAH, INC. in writing within two days after issuance of the PO and withhold acceptance of the PO until such objection is settled by written agreement. Failure to supply notice of objection within two days will constitute acceptance by supplier of PO.

4. Inspection

All goods and deliverables are subject to final review, inspection and acceptance by SENAH, INC. upon completion of collaborative testing, notwithstanding any payment or initial inspection. Applicable to All SENAH, INC. Purchases: Supplier acknowledges that all goods and deliverables are subject to final review, inspection and acceptance by SENAH, INC…

5. Rejections/Returns

SENAH, INC. reserves the right to refuse any goods or deliverables and to cancel all or any part of a PO for goods or deliverables not conforming to applicable specifications, drawings, samples or descriptions. Acceptance of any part of the PO shall not bind SENAH, INC. to accept future shipments of non-conforming goods or deliverables, nor deprive it of the right to return non-conforming goods or deliverables already accepted. Goods and deliverables, if rejected, may be returned to Supplier at Supplier’s expense for transportation both ways, and no replacement or substitution shall be made unless so authorized by SENAH, INC.

6. Cancellation Due to Delay of Timely Delivery

The delivery of goods, services and deliverables shall strictly comply with the delivery date or delivery schedule, if any, specified by SENAH, INC.If at any time it appears Supplier will not meet such delivery date or schedule, Supplier shall promptly notify SENAH, INC. in writing of reasons for, and the estimated duration of, the delay. If requested by SENAH, INC., Supplier will ship delayed goods by means to avoid or minimize delay to the maximum extent possible, the added cost to be borne solely by Supplier. SENAH, INC. may exercise its other remedies, such as cancellation of the PO after 30 days for non-compliance and cover.

7. Invoice

Unless otherwise specified by SENAH, INC., a separate invoice shall be issued for each shipment and only after the goods are shipped or services and deliverables delivered. No payment will be made prior to receipt of goods, services or deliverables and current invoice (if such invoice is required by SENAH, INC.). Payment due dates, including discount periods, will be computed from date of invoice to date SENAH, INC.’s check is mailed (or payment is otherwise transmitted by SENAH, INC.).

8. Payments

Unless otherwise specified by SENAH, INC., payment terms will be as specified on the PO. SENAH, INC. may withhold payment of any amounts to be paid to Supplier which are disputed in good faith by SENAH, INC.

9. Warranty

In accepting this PO, Supplier unconditionally represents and warrants, any other representation or agreement to the contrary notwithstanding, that the goods and deliverables supplied pursuant to this PO are of merchantable quality, conform to the specifications as stated on the PO and as otherwise provided by SENAH, INC. and are suitable for SENAH, INC.’s purposes in the ordinary course of its business.

Applicable to All SENAH, INC. Purchases: In accepting this PO, Supplier unconditionally represents and warrants, any other representation or agreement to the contrary notwithstanding, that the goods and deliverables supplied pursuant to the PO are of merchantable quality, conform to the specifications as stated on the PO and as otherwise provided by SENAH, INC. and are suitable for SENAH, INC.’s intended uses and purposes in the ordinary course of its business.

All warranties herein stated shall run to SENAH, INC., its customers and the users of the goods or deliverables or products into which such goods or deliverables may be incorporated. If this PO is for services then by in accepting this PO, Supplier also unconditionally represents and warrants, any other representation or agreement to the contrary notwithstanding, that: (i) its performance of the services and the deliverables arising therefrom, or any portion or function thereof, or the use of the deliverables or any portion thereof, will not violate or infringe any third-party patent, trademark, copyright, trade secret or similar rights; (ii) the services will be provided by qualified personnel reasonably skilled and trained in the performance of the services and in a workmanlike and professional manner in accordance with general industry standards; (iii) it is currently under no obligation to any third party, nor will it enter into any obligation to a third party, that could interfere with its rendering to SENAH, INC. the services or deliverables; (iv) any documentation provided to SENAH, INC. shall meet reasonable standards of clarity and detail; and (v) all deliverables will be warranted to perform according to their specifications.

10. Indemnification

Supplier agrees to indemnify and hold harmless SENAH, INC., its subsidiaries and affiliates (and its and their respective directors, employees and agents) from any losses, liabilities, damages and expenses (including without limitation reasonable attorneys’ fees) arising, directly or indirectly, from: (i) Supplier’s breach of any provision hereof, including without limitation the confidentiality obligations and the warranties made herein; (ii) any negligent or wrongful act or omission of Supplier, its employees, consultants or subcontractors; (iii) Supplier’s failure to comply with applicable laws and regulations in filling the PO; (iv) any claim charging that SENAH, INC.’s purchase of goods, services or deliverables under the PO constitutes misappropriation of trade secrets, breach of a confidential relationship, or trademark, trade secret or copyright infringement; and/or (v) any claim charging that any goods or deliverables acquired under the PO, or the use of such goods or deliverables, infringe a third-party’s patent anywhere in the world. If the goods or deliverables, or the use of such goods or deliverables, are held to constitute an infringement and their sale or use is enjoined, Supplier shall, at its expense and option, either procure for SENAH, INC. and its affiliates the right to continue to use such goods or deliverables, or replace same with an equivalent non-infringing product, or modify same so it becomes an equivalent non-infringing product. This Section will not be construed to limit or exclude any other claims or remedies that SENAH, INC. or its affiliates (and its and their respective directors, employees and agents) may assert.

11. Limitation of Liability


12. Insurance

Supplier shall, at its own expense, maintain with a reputable insurer (and provide written certificate(s) of insurance to SENAH, INC. if and when requested) for a period of at least 3 years after the fulfillment of the PO reasonable and customary insurance coverage, including, but not limited to, (i) worker’s compensation statutory coverage as required by the laws of the applicable jurisdiction, and (ii) commercial general liability insurance including coverage for product liability in the minimum amount of $2 million in respect of claims for any losses, costs and expenses arising out of or relating to Supplier furnishing the goods, deliverables and/or services under the PO. The certificate(s) of insurance will, if requested by SENAH, INC., designate SENAH, INC. as “additional insured” under the commercial general liability policy and will include the agreement for the insurer to give SENAH, INC. written notice at least 30 days prior to the effective date of any cancellation, lapse or material change in the policy, and will contain a waiver of subrogation in favor of SENAH, INC..

13. Copyrights; Rights to Inventions

SENAH, INC. will be the exclusive owner of all deliverables created by Supplier in connection with or during the performance of services provided pursuant to a PO, any works based on or derived from such deliverables (“Derivatives”), and any ideas, concepts, inventions or techniques that Supplier may conceive or first reduce to practice in connection with developing the Deliverables (“Deliverable Concepts”) (the deliverables, Derivatives, and Deliverable Concepts are collectively referred to as, “SENAH, INC. Materials”) and all intellectual property rights therein, including patents, copyrights, trade secrets, trademarks, moral rights, and similar rights of any type under the laws of any governmental authority (collectively, “Intellectual Property Rights”). All copyrightable SENAH, INC. Materials shall be prepared by Supplier as a “work made for hire” for SENAH, INC., and SENAH, INC. shall be considered the author of the SENAH, INC. Materials for purposes of copyright. To the extent that the SENAH, INC. does not acquire ownership of such copyrights as a work made for hire, and with respect to all other rights, Supplier hereby assigns and agrees to assign upon creation to SENAH, INC. all right, title and interest in and to the SENAH, INC. Materials and all Intellectual Property Rights therein. To the extent such assignment of rights and ownership is invalid or any of the foregoing rights, including so-called “moral rights” or rights of “droit moral,” may be inalienable, Supplier agrees to waive and agrees not to exercise such rights, and if such waiver and agreement are deemed invalid, to grant to SENAH, INC. and its designees the exclusive, transferable, perpetual, irrevocable, worldwide and royalty free right to make, use, market, modify, distribute, transmit, copy, sell, practice, and offer for sale and import the SENAH, INC. Materials and any process, technology, software, article, equipment, system, unit, product or component part covered by the Deliverable Concepts or a claim of any patent in any part of the Deliverable Concepts. At SENAH, INC.’s request, Supplier will obtain the execution of any instrument, including from any employee or contractor, which may be appropriate to assign these rights under this paragraph to SENAH, INC. or perfect these rights in SENAH, INC.’s name. Supplier agrees that any copyrightable material prepared for SENAH, INC. shall carry on the face thereof in legible form a copyright notice identifying SENAH, INC. and the year of publication.

14. Force Majeure

Supplier and SENAH, INC., as the case may be, shall be excused for delays in performance or failure of performance to the extent arising from causes beyond such party’s reasonable control, including without limitation strikes, wars, fires, floods, earthquakes, and acts of terror or other acts of God. In the event of any such event or condition, the party whose performance is excused hereunder shall notify the other promptly thereof and shall make diligent efforts to perform at its earliest opportunity and the other party shall be permitted to end its performance under the PO. If Supplier’s performance is excused hereunder, SENAH, INC. shall have the right, and Supplier agrees to provide to SENAH, INC. the assistance and information necessary for SENAH, INC., to make, have made, or otherwise procure replacement goods and services.

15. Shipping Terms

Unless otherwise specified by SENAH, INC., delivery of goods is to be as specified on the PO, Supplier is required to ship via the most economical method that will meet delivery date. Supplier shall provide a packing list to SENAH, INC. for all shipments referencing the appropriate order number. Bills of lading, if any, shall also reference the appropriate order number.

16. Transportation Liability

Supplier agrees that in any case where freight regulations covering goods transported by common carrier establish a maximum limit on the carrier’s liability for loss or damage suffered in transit, Supplier will be liable to SENAH, INC. for any loss or damage in excess of such maximum limit up to the full replacement cost of the goods.

17. Confidentiality; No Publicity

Supplier shall keep in confidence and shall not, without securing the prior written consent of SENAH, INC., originate any publicity (including any news release or public announcement) or disclose to any third party information relating to: the existence of the relationship with SENAH, INC.; SENAH, INC.’s purchasing systems or practices (including, without limitation, descriptions of purchased items, quantities purchased and prices paid); the nature of the services performed and deliverables and goods delivered under the PO; and any proprietary or confidential data, designs, or other information supplied by, or on behalf of, SENAH, INC.. Notwithstanding the foregoing, Supplier may disclose such confidential information (i) to Supplier’s employees having a need to know such information to process the PO or improve the services provided by Supplier to SENAH, INC. or (ii) to comply with applicable laws, court orders, or government regulations. If disclosure is permitted under clause (ii) above, Supplier shall consult with SENAH, INC. in connection with any publicity in a reasonable time prior to its release to allow SENAH, INC. to comment thereon, and to prevent its release if so permitted by law. Supplier agrees that it will take appropriate action by instruction, agreement, or otherwise with its employees and subcontractors who are permitted access to the aforementioned information to notify them of Supplier’s obligations hereunder. Upon SENAH, INC.’s request any data, designs, or other information furnished to Supplier (and copies thereof) shall be returned to SENAH, INC..

18. SENAH, INC.’s Property

All tools, equipment and materials of every description furnished to Supplier by, or specifically paid for by, SENAH, INC., and any replacement thereof, and any materials affixed or attached thereto, shall be and remain the personal property of SENAH, INC., and shall be safely stored separate and apart from Supplier’s property. Supplier shall not substitute any property for SENAH, INC.’s property and shall not use such property except in filling SENAH, INC.’s purchase orders. Such property while in Supplier’s custody or control shall be held at Supplier’s risk, shall be kept insured by Supplier at Supplier’s expense in an amount equal to the replacement cost with loss payable to SENAH, INC. and shall be subject to removal at SENAH, INC.’s written request, in which event Supplier shall prepare such property for shipment and shall redeliver to SENAH, INC. in the same condition as originally received by Supplier, reasonable wear and tear excepted.

19. Material Safety Data Sheets

An appropriate material safety data sheet (“MSDS”) and labeling, as and if required by law, will precede or accompany each shipment of Supplier. Further, Supplier shall send to SENAH, INC. updated MSDS’s and labeling as required by law.

20. Compliance with Laws

Supplier agrees to comply with the applicable provisions of any federal, national, state or local law, and all orders, rules and regulations issued thereunder, whether now or hereafter in force, and any provisions, representations or agreements required thereby to be included in the contract resulting from acceptance of the PO are hereby incorporated by reference, including, but not limited to, those prohibiting discrimination against any employee or applicant for employment because of race, color, religion, sex or national origin, or physical or mental handicap and those providing for the employment of disabled veterans.

21. Choice of Law

The laws and Courts of the State of California, County of Santa Clara, USA without regard to principles of conflict of laws, will govern these terms and conditions and the PO.Interpretation, construction, and the remedies for the enforcement or breaches of any Purchase Order, Contract or Agreement, both oral and written are to be applied pursuant to and in accordance with the laws and the courts of the State of California. The parties hereby stipulate to the jurisdiction and venue of the County of Santa Clara, California.

22. Complete Agreement

These terms and conditions and the other agreements (e.g., supply agreements, service agreements, statements of work) if any, pursuant to which this PO was issued contain the entire understanding of the parties with respect to the subject matter of the PO. No modification, amendment or waiver of any term or condition hereof shall be effective unless set forth in writing signed by SENAH, INC. and Supplier. Unless agreed to by SENAH, INC. in a writing, SENAH, INC. will not be bound to any additional or different terms or conditions hereafter transmitted by Supplier and SENAH, INC. will not be bound by its silence, course of dealing, usage of the trade or its acceptance of the goods or services.

23. Assignment

The PO and Supplier’s rights and duties hereunder shall not be assignable by Supplier without the prior written consent of SENAH, INC., which consent may be withheld in its sole discretion. SENAH, INC. may assign its rights and obligations hereunder to any one or more of its affiliates. The PO and these terms and conditions shall inure to the benefit of and be binding upon SENAH, INC. and Supplier and their respective successors and permitted assigns; nothing contained herein shall give to any other person any benefit or any legal or equitable right, remedy or claim.

24. Miscellaneous

Headings used herein are for convenience only and shall not be used for interpretive purpose. A party’s failure to act with respect to another party’s breach of any provision contained herein does not constitute a waiver. If any provision herein is held to be invalid or unenforceable, such provision shall be narrowly construed, if possible, or otherwise deemed ineffective and the remaining provisions shall not be affected. These terms and conditions will survive the fulfillment of the PO.

*these terms and conditions shall include purchases made underdba’s

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