MagnaWave, Inc. Purchase Order Terms & Conditions

Agreement. These terms, together with the purchase order that references these terms (collectively,  “Purchase Order”), contain  the entire agreement between MagnaWave, Inc. (“MagnaWave”) and the supplier indicated on the face of the Purchase Order (“Supplier”) with respect to the products (“Goods”) and services (“Services”) specified thereon, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral.

Prices and Taxes; Payment.  The price of the Goods and Services is the price stated in the Purchase Order (“Price”). If no price is included in the Purchase Order, the Price shall be the price set out in Supplier’s published price list in force as of the date of the Purchase Order. Unless otherwise specified in the Purchase Order, the Price includes all packaging, transportation costs to the Delivery Point, insurance, customs duties and fees and applicable taxes.  Prices are firm and fixed and may not be increased unless MagnaWave agrees in writing. Supplier shall issue an invoice to MagnaWave on or any time after the completion of delivery.  Unless otherwise specified in the Purchase Order, MagnaWave shall pay all properly invoiced amounts due to Supplier within thirty (30) days after MagnaWave’s receipt of such invoice, except for any amounts disputed by Buyer in good faith, and payment shall be made in U.S. Dollars.

Product Changes. Supplier agrees to notify MagnaWave in writing prior to any proposed change to any Goods or Services. Supplier will not ship any Goods or start to provide any Services incorporating such change until MagnaWave has approved the change.

Delivery. Supplier shall deliver the Goods and/or commence performing the Services at MagnaWave’s address shown on the Order or to the address specified in the Purchase Order or as otherwise instructed by MagnaWave (“Delivery Location”).    Supplier shall deliver the Goods and/or commence performing the Services by the indicated delivery date or, if no date is specified, within a reasonable time (“Delivery Date”).  Supplier shall give written notice of shipment to MagnaWave when the Goods are delivered to a carrier for transportation.  Supplier shall provide MagnaWave all shipping documents, including the commercial invoice, packing list, air waybill/bill of lading and any other documents necessary to release the Goods to MagnaWave within five (5) business days after Supplier delivers the Goods to the transportation carrier.  If, due to Supplier’s failure to ship the Goods in a timely manner, the identified method of transportation will not permit Supplier to meet the Delivery Date, Supplier shall ship the Goods by air transportation or other means acceptable to MagnaWave and shall pay for any resulting increase in shipping cost.  Time is of the essence in the delivery of the Goods and Services.

Packaging.  Supplier shall handle, pack and package the Goods so as to protect them from loss or damage, in conformance with good environmental and commercial practice, any MagnaWave specifications, government regulations (including those applicable to chemicals and hazardous materials) and other applicable requirements.  The complete Purchase Order number must appear on all shipping documents, shipping labels, invoices, correspondence and any other documents pertaining to the Order.

Inspection; Acceptance. MagnaWave shall inspect the Goods within a reasonable time after delivery and determine whether to accept the Goods. Neither receipt of delivery nor payment by MagnaWave shall constitute acceptance. MagnaWave will return any Goods that do not conform to the terms of this Purchase Order at Supplier’s expense, and Supplier shall, at MagnaWave’s option, promptly (i) replace the nonconforming Goods, or (ii) refund any amounts paid by MagnaWave for such nonconforming Goods.

Change or Cancellation. MagnaWave shall have the right to change or cancel this Purchase Order without any obligation to pay Supplier: (i) at any time before Supplier’s shipment of the Goods or the commencement of the Services; or (ii) if the Goods are not delivered by the Delivery Date.

Warranties and MagnaWave’s Remedies. Supplier warrants that: (i) it has title to the Goods free and clear of any liens, encumbrances or other claims against title; (ii) the Goods are new, of good and merchantable quality, conform with industry standards and applicable law, are fit and safe for their intended purpose, and are free from defects in design, materials and workmanship;  (iii) the Goods conform strictly to the terms of the Purchase Order, any specifications or drawings provided by MagnaWave and/or any samples provided by Supplier and Supplier’s published specifications for the Goods; (iv) the Goods do not and will not infringe on any patent, copyright, trademark, service mark, trade secret or other proprietary right of any third party (“Non-Infringement Warranty”). Supplier further warrants that any Services shall conform strictly to the terms of the Purchase Order and shall be performed in a professional and workmanlike manner and in accordance with applicable law. Supplier’s warranties shall be in effect for the longer of either: (i) Supplier’s normal warranty period, or (ii) one year following the date of MagnaWave’s acceptance of the Product or Services; provided, however, that Supplier’s Noninfringement Warranty shall be in effect perpetually.

Indemnification. Supplier shall defend, indemnify, and hold harmless MagnaWave, its directors, officers, employees, agents, successors and assigns (“MagnaWave Indemnitee(s)”) from and against all loss, expense, liability, or damage (including judgments, fines, penalties, consultants’ fees, and attorney’s fees and costs of defense) (collectively, “Losses”) resulting from any third-party claim, complaint, suit, proceeding, or cause of action brought against any MagnaWave Indemnitee arising out of or occurring in connection with the Goods and Services purchased from Seller or Seller’s negligence, willful misconduct or breach of the warranties or Terms of this Purchase Order Without limiting the foregoing remedy, Seller shall, at its expense, defend, indemnify and hold harmless MagnaWave Indemnitees against any and all Losses arising out of or in connection with any actual or alleged breach of the Non-Infringement Warranty.

Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, UNLESS EXPRESSLY PROVIDED OTHERWISE, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL OR PUNITIVE DAMAGES BASED ON CONTRACT, TORT OR OTHER LEGAL THEORY. NOTWITHSTANDING THE FOREGOING, SUPPLIER SHALL BE RESPONSIBLE FOR DAMAGES OF ANY KIND AWARDED ON A CLAIM FOR WHICH SUPPLIER HAS AN INDEMNIFICATION OBLIGATION AND FOR DAMAGES FOR BODILY INJURY OR DEATH ARISING OUT OF USE OF A PRODUCT.

Confidential Information. Except as required to supply Goods or Services pursuant to this Purchase Order, or as otherwise instructed by MagnaWave, Supplier shall not use or disclose any confidential information of MagnaWave. Confidential information includes, without limitation, all information designated by MagnaWave as confidential, all information or data concerning MagnaWave’s products (including the discovery, invention, research, improvement, development, manufacture or sale thereof) or general business operations (including costs, forecasts, profits, pricing methods and processes), and any other information that is of such a nature that a reasonable person would believe it to be confidential.

Notices. Any notice required or permitted under this Purchase Order shall be in writing, sent and effective when sent by either registered or certified mail, return receipt requested, postage prepaid; or facsimile or email, receipt confirmed.

Assignment. Supplier may not assign any of its rights or obligations under this Purchase Order by operation of law or otherwise.

Governing Law. This Purchase Order and the rights and obligation of the parties shall be governed by, construed, and enforced in accordance with the laws of the State of Kentucky, excluding any choice of law rules which would refer the matter to the laws of another jurisdiction.

Waiver.  The waiver of any term or condition of this Purchase Order must be in writing. No such waiver shall be construed as a waiver of any other term or condition, nor as a waiver of any subsequent breach of the same term or condition.

Non-Restrictive Relationship. Nothing in this Purchase Order shall be construed to preclude MagnaWave from purchasing the same or similar goods or services as the Goods or Services provided under this Purchase Order from any third party.

Severability. If a body of competent jurisdiction holds any term or provision of this Purchase Order to be invalid or unenforceable, such term or provision will be construed, limited or, if necessary, severed to the extent necessary to eliminate such invalidity or unenforceability, and the other provisions of this Purchase Order will remain in full force and effect.