The Vendor identified to the pertinent Purchase Order agrees to the following terms and conditions:
The products (“Products”) detailed on this Malmberg Engineering, Inc (“Malmberg”) Purchase Order (“Order”) are purchased on the terms and conditions set forth on the front of the Order and on the terms and conditions set forth herein, all of which terms constitute the entire agreement (“Agreement”) between Malmberg and the supplier identified on the front of this Order (“Vendor”). The within terms and conditions take precedence over any Vendor terms and conditions. Any additional or conflicting terms on Vendor’s invoice or acknowledgment are hereby rejected.
Vendor agrees to allow Malmberg, its customers, and their respective agents and representatives reasonable access to (a) all Vendor facilities involved in the manufacture and/or production of the Products, and (b) all Vendor records associated with the acquisition of materials, the production process, and the sale and delivery of the Products in order to observe, evaluate, and verify the production methods, quality control procedures, and physical environment of Vendor.
Vendor warrants that all of the Products will be manufactured in compliance with published specifications and will be delivered to Malmberg or its designee free from defects in materials and workmanship for one year from the date of purchase. The inspection of the Vendor’s facilities, and/or the verification of production and manufacturing methods, does not constitute a waiver of the express warranties set forth herein or the right to reject non‑conforming goods.
Vendor shall immediately notify Malmberg of the production or delivery of non‑conforming Product, and will arrange for disposition of any such non-conforming Product at Vendor’s sole cost and expense.
In the event that Vendor sub‑contracts all or any portion of the manufacture of the Products identified in this Order, or Vendor’s delegates any portion of Vendor’s performance under this Order, Vendor shall cause all such sub-contractors to agree in writing to terms stated in this Order, and Malmberg shall be a third‑party beneficiary of any such agreements.
Vendor shall immediately notify Malmberg of any changes in Product components, materials, specifications and/or manufacturing processes, and Vendor shall obtain Malmberg’s prior written approval to any such changes or modifications, which approval may be granted or withheld in Malmberg’s sole discretion.
This Agreement is governed by, and will be interpreted and enforced under, the internal laws of the State of California (irrespective of its choice of law principles). Any suit to enforce this Agreement may be brought only in the federal and state courts located in the County of Alameda, California, and such courts have exclusive in personam jurisdiction and venue with respect to such party. In any action to enforce or interpret this Agreement, the prevailing party is entitled to recover, as an element of the costs of suit, and not as damages, reasonable attorneys’ fees to be fixed by the court (including, without limitation, costs, expenses and fees on any appeal). If any provision of this Agreement is held to be invalid or unenforceable, it shall be enforced to the extent permissible and the remainder of the Agreement shall remain in effect. Malmberg’s failure to exercise any of its rights hereunder shall not constitute or be deemed a waiver or forfeiture of such rights.
Vendor shall be required to retain records for Malmberg Engineering. At a minimum retention period of 7 years.