The Goods shall conform to Supplier’s specifications in effect on the date of the applicable Purchase Order, plus and any additional specifications Suntsu provides in writing (the “Specifications”). The Services shall conform to any specifications or other documentation provided by Suntsu to Supplier or developed by Supplier and approved by Suntsu.


Supplier shall accept all Purchase Orders and releases against blanket Purchase Orders that are submitted in conformance with this Agreement. Suntsu may submit Purchase Orders at any time at Suntsu’s sole discretion. It shall be Supplier’s obligation to validate that a current Purchase Order, or release against a blanket Purchase Order, with accurate product descriptions, quantities, delivery destinations and delivery dates is in place before releasing shipments. Any Goods received that are not specified on a valid Purchase Order, or any quantities of Goods received that exceed those listed on a valid Purchase Order, may be returned to the Supplier’s shipping point at Supplier’s expense. In the event that Supplier ships Goods to the wrong delivery location, Supplier shall provide Suntsu with a credit for the Goods shipped to the wrong delivery location and re-ship Goods to the correct delivery location. Supplier shall also bear all costs and expenses in connection with the re-shipment of Goods to the correct delivery location. If requested by Supplier, Suntsu shall assist Supplier in having the Goods that were shipped to the wrong delivery destination returned to Supplier, at Supplier’s expense. Suntsu may, at any time by notice to Supplier, modify the time and place of delivery and/or method of transportation in any Purchase Order. If any such modification results in an increase or decrease in the cost or time required for performance, the parties shall make an equitable adjustment. Unless otherwise expressly agreed to by Suntsu and Supplier in writing, Supplier may not make partial shipments of Goods to Suntsu.


Any forecasts provided to Supplier are estimates only and shall not be binding on Suntsu. In the case of blanket Purchase Orders, Supplier agrees to furnish Suntsu’s requirements for the Goods covered by the blanket Purchase Order to the extent and according to the delivery schedules set forth in such blanket Purchase Order or as set forth in Suntsu’s releases against such blanket Purchase Order.


Time is of the essence in fulfillment of each Purchase Order. Supplier shall keep Suntsu fully informed of its progress under each Purchase Order and promptly notify Suntsu whenever there is doubt that delivery will be made on schedule. If by reason of Supplier’s progress under a Purchase Order or otherwise, there is reasonable expectation that delivery schedules will not be met, Suntsu may, at its option, and without limiting any other remedies: (a) without liability, cancel Suntsu’s obligation under the affected Purchase Order as to the Goods which have not been delivered and/or Services which have not been performed, and purchase substitute products or services elsewhere, with Supplier to pay any excess cost and expense incurred in connection therewith; or (b) require rush delivery of the Goods at Supplier’s expense. If any fees are due to a Suntsu customer or end user as the result of an inability of Suntsu to fill a customer’s or end user’s order for any Goods (or any Suntsu products in which the Goods are contained) on the requested delivery date because such Goods are not delivered to Suntsu on time, Supplier shall reimburse Suntsu for such fees. If the Goods are delivered in advance of the delivery schedule, Suntsu may, at its option, (A) return the Goods at Supplier’s expense for redelivery at the proper time, (B) withhold payment for the Goods until such time as payment would have become due had delivery been made at the time provided for in the Purchase Order, or (C) place the Goods in storage at Supplier’s expense and for Supplier’s account until the time provided for delivery.


Delivery shall be made, and title and risk of loss to the Goods shall pass, at such place or places as Suntsu may specify, in accordance with shipping instructions as to manner of shipment, shipping terms, carriers, routing, prepayment of freight, and other matters established by Suntsu in this Agreement, a Purchase Order, or in subsequent notices to Supplier.


Supplier shall sell the Goods and/or provide the Services to Suntsu at the prices set forth on the most recent applicable Purchase Order. Prices stated on a Purchase Order apply to all shipments made and Services provided thereunder and Supplier warrants that the prices charged Suntsu shall not exceed the prices Supplier charges other buyers for the same type of product or service in comparable quantities. If Supplier reduces its price for such items or services, Supplier shall reduce the prices under this Agreement accordingly. Unless otherwise expressly stated on a Purchase Order, the price set forth on the Purchase Order shall include (a) all cost of packaging and delivery consistent with the applicable shipping terms; (b) all duties, tariffs, and taxes (including sales, excise and withholding taxes) payable in any country: (c) all commissions to selling agents; and (d) all other incidental charges, whether or not such charges are itemized separately on invoices to Suntsu. Suntsu  shall have no obligation to honor invoices for Goods or Services at any increased price until such increase has been confirmed in writing by Suntsu’s authorized representative.


Supplier shall invoice charges for all Goods at the time of actual shipment and for all Services at the time of acceptance of the Services. All undisputed invoices shall be due and payable within ninety (90) days after receipt of the invoice or by such other date as set forth in the applicable Purchase Order. Suntsu shall be entitled to offset any amount owed by Suntsu under this Agreement from amounts Supplier otherwise owes Suntsu . In the event that Suntsu disputes any Supplier invoice as being inaccurate or incorrect, Suntsu will provide Supplier with prompt written notice of that dispute, along with a reasonably detailed description of the reason(s) why Suntsu believes the invoice is inaccurate or incorrect, and thereafter, the parties will negotiate in good faith to resolve the invoice dispute. Supplier shall continue performing its obligations under this Agreement notwithstanding any such dispute.


Supplier shall separately state on its invoices the amount of any tax applicable to the sale of the Goods or the performance of Services and payable by Suntsu in the absence of evidence of lawful exemption. Unless so separately stated, Supplier agrees that all excise, occupational, sales, use, and other taxes applicable to the sale or purchase of materials or articles used in the Goods, or applicable to Supplier’s work or Services or to Supplier’s receipts for the performance of the work or Services covered by a Purchase Order, shall be paid by Supplier.


In the event that either Supplier or Suntsu becomes aware of any Product Safety Issue (as defined below), or is advised of a Product Safety Issue, then such party shall promptly give notice to the other party, and each party upon receiving any such notice, or upon any such discovery, shall cease and desist from further shipments of such Goods in its possession or control until a decision has been made whether a recall or some other corrective action is necessary and shall communicate to the other party all relevant facts known to it. For purposes of this Agreement, “Product Safety Issue” means any issue relating to a potential safety hazard or unsafe condition, or any potential non-compliance with applicable law, requiring either Suntsu or Supplier to recall, replace, repair, or make refunds with respect to (a) any Goods purchased from Supplier hereunder, or (b) any Suntsu product in which the Goods are contained, and in each such case whether effected voluntarily or under a threat of, or a directive by, any governmental agency. The parties shall cooperate in communicating with the public and governmental agencies and in correcting any such Product Safety Issue that is found to exist. Supplier and Suntsu shall consult with one another prior to making any statements to the public or to any governmental agency concerning the Product Safety Issue, except in circumstances in which doing so would prevent timely notification that may be required to be given under applicable law. Expenses associated with the correction of a Product Issue shall be solely Supplier’s responsibility, including the actual cost of the Goods, as well as the costs of inspection, investigation, replacement, retrieval, storage, transportation, destruction and/or disposal, notification to customers, end users and governmental agencies, recordkeeping, and other administration, internal management time and attorneys’ fees.


Supplier shall furnish Suntsu evidence that Supplier has adequate public liability and property damage insurance, in amounts and with companies acceptable to Suntsu, and evidence that Supplier has made adequate provisions for satisfying workers’ unemployment compensation claims (including Workers’ Compensation Insurance at least meeting statutory requirements). Supplier shall submit to Suntsu certificates evidencing such coverage. Should any of the policies be cancelled before the expiration date thereof, notice will be delivered in accordance with the policy provisions.


Supplier warrants that all Goods shall, for the Warranty Period (as defined below): (a) conform to the Specifications; (b) be merchantable, of good material and workmanship, and free from defect; (c) be fit for the particular purpose for which they are manufactured and intended; (d) include reasonable security features in any Goods that are capable of collecting, receiving, or transmitting information; and (e) be manufactured, packaged, labeled, stored, loaded for shipment and shipped in strict conformity with all applicable laws relating thereto. Supplier further represents and warrants that the Goods (i) consist of all new materials and that Suntsu  will receive, at the time of delivery, good and marketable title to the Goods free of all liens, claims and encumbrances and (ii) contain no counterfeit parts or components. As used in this Agreement, “Warranty Period” means the longest of (A) five (5) years from the date of delivery of the Goods to Suntsu; (B) the warranty period provided by applicable law; or (C) the warranty period provided by Suntsu to its customers or end users for the Goods (or any Suntsu products in which the Goods are contained). Supplier warrants that the Services shall be performed in a professional and workmanlike manner. THE WARRANTIES SET FORTH IN THIS SECTION ARE IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. The warranties contained herein on the part of Supplier shall survive delivery and inspection of the Goods, performance of the Services, as well as termination of this Agreement, and shall inure to the benefit of Suntsu and its customers and end users. In addition to the foregoing warranties, Supplier shall assign and pass through to Suntsu and its customers and end users the benefit of all rights and remedies, including warranties, acceptance rights, rights of return, and rights of recovery, Supplier may have with any other party from which it receives Goods or components thereof with regard to defect, non-conformity, or any other condition that may exist or arise involving the Goods. Supplier shall use its best efforts to require any party from which it receives Goods or components thereof to consent to the terms of this Section and Supplier further warrants that no supplier of Goods or any component thereof prohibits Supplier from doing so. If customer-specified Goods purchased for resale by Suntsu: Supplier acknowledges that (1) some or all of the Goods being purchased by Suntsu under this Purchase Order are Goods that have not been manufactured for Suntsu and/or will not be branded by Suntsu as Suntsu products and (2) such Goods are being purchased by Suntsu at the request of one or more of Suntsu’s customers for re-sale by Suntsu to such customer(s). Any claims for defects in material or workmanship of such Goods, or other failure to comply with the warranties set forth above, may be made by such customer(s) directly with Supplier.


If any Goods are found to be defective in material or workmanship, or otherwise fail to comply with the warranties set forth in WARRANTIES (“Warranty Failure”), Suntsu  will notify Supplier within a reasonable time following discovery of such Warranty Failure. Within forty-eight (48) hours after receiving Suntsu’s notice, Supplier shall notify Suntsu that Suntsu is authorized to either (a) return a representative sample of the Goods subject to the Warranty Failure to Supplier, F.O.B. Suntsu’s or its customer’s or end user’s location or (b) scrap and/or dispose of the Goods at Suntsu’s or its customer’s or end user’s location. If Supplier fails to so notify Suntsu, then such Goods will be scrapped and/or disposed of at Suntsu’s or its customer’s or end user’s location. Supplier shall be responsible for the full cost of repairing or replacing such Goods, at Suntsu’s option and Supplier’s sole expense, including labor, travel and installation expenses, field scrap charges and scrap related to repairing or replacing such Goods. Supplier shall also bear all costs and expenses in connection with the shipment of Goods to or from Suntsu  or its customer or end user pursuant to the warranty provisions set forth in WARRANTIES. The replacement or repaired Goods shall be covered by the foregoing warranties commencing on the date the replacement or repaired Goods are delivered to Suntsu or its customer or end user. If Suntsu notifies Supplier, within ninety (90) days from the date any Services are furnished, that Supplier has failed to perform such Services consistent with the Services warranty in WARRANTIES, Supplier shall promptly, at no additional charge to Suntsu, reperform such Services consistent with such warranty within a reasonable period of time. If Supplier fails to correct the defects or other non-conformity within the specified period or if such Services cannot be satisfactorily reperformed, Suntsu, at its option and sole discretion, may terminate this Agreement and/or the applicable Purchase Order, in whole or in part, in which case Supplier shall refund the fees and other amounts paid by Suntsu. If Supplier fails to comply with the remedies set forth in this INDEMNIFICATION, Suntsu may exercise all rights and remedies available to it under law or at equity.


Supplier shall defend, hold harmless and indemnify Suntsu, its affiliates, directors, officers, agents, shareholders and employees (collectively, “Indemnitees”) from and against all damages (whether as the result of breach of contract, warranty, tort (including negligence), strict liability or any other theory), losses, costs (including attorneys’ fees and other expenses), civil penalties, claims, demands, lawsuits, or other actions, liabilities and/or obligations of any kind (including death of or injury to person or damage to any property (personal, real or otherwise) or environmental harm) (collectively, “Liabilities”) arising or resulting or alleged to have arisen or resulted from: (a) the failure of Supplier or the Goods or Services to comply with any of the representations, warranties, covenants, or other provisions of this Agreement; (b) any acts or omissions of the Supplier, its agents, representatives, employees or subcontractors; (c) the Goods or Services, whether due to any alleged defect or any alleged failure in the Goods or Services or otherwise; (d) any counterfeit parts or components in the Goods; and (e) any mechanics liens or other claims by subcontractors, and vendors of labor, materials and services related to the Goods sold under this Agreement.. Notwithstanding the foregoing, Supplier shall not be required to defend, indemnify, or hold harmless Suntsu to the extent that any Liabilities (A) result from the negligent act or omission of Suntsu, or (B) arise out of a product manufactured by Suntsu in which the Goods are a component but which Liabilities are not alleged to have arisen out of or resulted from the Goods. In addition to its indemnification obligations above, Supplier further agrees to defend (or at the option of Suntsu cooperate in the defense of), hold harmless and indemnify the Indemnitees from and against all Liabilities arising or alleged to have arisen from any and all claims of infringement of any patent, copyright, trade secret, or other intellectual property right, world-wide, arising from or relating to the Goods or Services, including infringement of any intellectual property used in Supplier’s design or production of the Goods or intellectual property that is embedded or embodied in the Goods or Services. If, as a result of any suit or proceeding that is the subject of Supplier’s indemnification obligations, the use or sale of any applicable Goods or Services purchased by Suntsu from Supplier hereunder is enjoined, then Supplier shall authorize Suntsu to return said enjoined Goods or discontinue said enjoined Services and refund to Suntsu the full purchase price and any expenses of Suntsu associated with such return.  In the event any Indemnitee is named as a party to a claim, demand, lawsuit, or other action, Supplier will, at Suntsu ’ option, defend such matters with counsel acceptable to Suntsu or reimburse Suntsu for its cost of defense. After taking over the defense of a matter, Supplier shall not, without the written consent of Suntsu, settle or compromise any Liabilities or consent to the entry of any judgment against Suntsu.


Suntsu may, at any time and without cause, terminate this Agreement and/or any Purchase Order in whole or in part by notice to Supplier. In the event Suntsu terminates without cause this Agreement and/or any Purchase Order in whole or in part (a) Supplier shall forthwith cease all Services and terminate work to the extent specified and, for the benefit of Suntsu, dispose of finished Goods and work-in-progress on the Goods as Suntsu  may direct in writing, (b) Supplier will use its reasonable commercial efforts to mitigate any costs associated with such termination, including seeking to use raw materials and components for other customers or applying them to future orders, and (c) subject to Supplier meeting its obligations set forth in the preceding clauses (a) and (b), Suntsu shall pay Supplier for Services properly completed prior to the effective date of termination and an amount, if any, not in excess of the unpaid aggregate price specified in the affected Purchase Order(s) equal to the sum of (i) the purchase price under this Agreement for Goods finished as of the date of termination, not previously paid for, that conform to the requirements of this Agreement and were produced pursuant to this Agreement, except for any such Goods that are in Supplier’s standard stock (i.e., “off-theshelf”) or are otherwise readily marketable, less amounts received or that could have been received by Supplier for the disposition or sale of any finished Goods not delivered to Suntsu, plus (ii) Supplier’s actual cost (as determined by Suntsu in accordance with U.S. generally accepted accounting principles) incurred prior to the effective date of termination for work-in-progress, raw materials and components related to such affected Purchase Order(s), provided they were ordered by Supplier in reliance on the affected Purchase Order(s) and no earlier than any documented lead-time for such raw materials and components. In addition, with respect to raw materials and components, Suntsu’s purchase obligation under this Section shall be limited to raw materials and components (A) that are used by Supplier solely or primarily in producing Goods hereunder and (B) which cannot be sold to other customers, or otherwise utilized by Supplier, within a reasonable period of time. Payments to Supplier under this Section  are the sole remedy of Supplier for any termination of this Agreement and/or any Purchase Order without cause. Except as expressly provided in this Section, Suntsu will not be liable for and will not be required to make payments to Supplier, directly or on account of claims by Supplier’s subcontractors or suppliers, for loss of anticipated profit, unabsorbed overhead, interest on claims, product development and engineering costs, facilities and equipment rearrangement costs or rental, unamortized depreciation costs, or general and administrative burden charges. In addition to any other rights set forth herein, in the event Supplier breaches any of its obligations hereunder, Suntsu  may immediately terminate this Agreement or any Purchase Order by notifying Supplier thereof, and thereafter Suntsu shall have no further obligations hereunder except to pay the undisputed amounts for any Goods or Services received by Suntsu prior to the date of said termination.


In the event Suntsu reasonably concludes that (a) by reason of an event of force majeure beyond Suntsu’s reasonable control and arising subsequent to the date of a Purchase Order but before delivery, the Goods or Service or any part thereof cannot be used by Suntsu for the purpose Suntsu intended as of the date of the Purchase Order, or (b) for any reason, including the financial condition of Supplier, Supplier’s prior performance under a Purchase Order or any similar occurrence (including failure to meet reasonable delivery schedules or repeated failure to meet quality and specifications standards), or accidents or differences with workers at Supplier’s plants, Supplier’s timely performance under the Purchase Order is doubtful, then Suntsu may, at its election, by notice to Supplier without indemnity to Supplier or other liability on the part of Suntsu: (i) suspend shipment of the Goods or the performance of Services or any part thereof for a period or periods in the aggregate not exceeding ninety (90) days, (ii) cancel the Purchase Order as to undelivered Goods or unperformed Services or any part thereof, or (iii) so suspend shipment and performance and, thereafter, during the period of suspension, cancel the Purchase Order.


Supplier agrees to hold all of Suntsu’s confidential information and trade secrets, as defined by California law, including designs and manufacturing information, in strict confidence and to not disclose said confidential information and trade secrets to any third party at any time or to use such information for any purpose except to fulfill its obligations to Suntsu under the Purchase Order. Said obligation with respect to confidential information shall commence on the date of the Purchase Order and continue until two (2) years following final fulfillment of Supplier’s obligations thereunder. With respect to trade secret information, Supplier’s duties shall survive for so long as such information remains a trade secret.


To the extent that Supplier creates any works of authorship for Suntsu in connection with any Purchase Order (the “Work Product”), the Work Product shall be deemed a work made for hire pursuant to the provisions of the U.S. Copyright Act, and Suntsu shall be deemed the author and owner of such Work Product. To the extent that the Work Product fails to qualify as a work made for hire, Supplier, by commencing performance under the Purchase Order, hereby irrevocably assigns to Suntsu any and all right, title and interest that it has in the Work Product. Supplier’s assignment hereunder shall be deemed a continuing assignment, effective for all Work Product created by Supplier hereunder. By commencing performance under a Purchase Order, Supplier warrants that it has the full and complete authority to make the grants and agreements contained herein and that no other party has or shall ever have any right or license in the Work Product, including any subcontractor, employee, or other party claiming by or through Supplier.


Supplier shall comply with all applicable federal, state, and local statutes, laws, ordinances, codes, and regulations relating to the sale of Goods and/or the performance of the Services and its other obligations hereunder, and shall procure all licenses and permits and pay all fees and other charges required thereby.


As of the time of the issuance of any Purchase Order, Supplier represents that: (a) the Goods do not contain any conflict minerals, which are defined as (i) gold or (ii) tantalum, tin, or tungsten (derivatives of columbite tantalite (coltan), cassiterite, and wolframite); or (b) if the Goods contain conflict minerals, Supplier has submitted to Suntsu the most recent version of the Conflict Minerals Reporting Template (“CMRT”) (available at http://www.responsiblemineralsinitiative.org/), which is incorporated herein by reference. If a CMRT was submitted to Suntsu as described in clause (b) above, Supplier certifies that the representations and certifications in such CMRT are current, accurate and complete as of the date of the issuance of any Purchase Order. If the status of any Goods changes so that the representations and certifications contained in clause (a) above or in such CMRT are no longer accurate, then Supplier must complete and submit to Suntsu  a revised CMRT. If Suntsu determines that any representation or certification made by Supplier pursuant to this provision is inaccurate or incomplete in any respect, then Suntsu may terminate this Agreement for breach by Supplier.


Supplier must be aware of their contribution to product and service conformity, as well as product safety.  It is vital that Supplier understands the importance of ethical behavior in support of Suntsu as an AS9120 certified organization.  All requirements communicated to suppliers any Purchase Order shall be met, or Supplier must explicitly request and receive an exemption in writing from Suntsu.  All requirements must also be communicated to any external providers utilized by Supplier to support Suntsu’s requirements, and appropriate controls must be applied to ensure that requirements are met.  Supplier must: implement a quality management system; use designated or approved external providers, including process sources (e.g., special processes); notify Suntsu of nonconforming processes, products, or services that affect stated requirements, and obtain approval for their disposition; prevent the use of suspected unapproved, unapproved, and counterfeit parts; notify Suntsu of changes to processes, products, or services, including changes of their external providers or location of manufacture; flow down to external providers applicable requirements including customer requirements; provide upon request any certificate of conformity, test reports, or authorized release certificate; and retain documented information for a period of 10 years.  In addition, the supplier must grant Suntsu, Suntsu’s customers, and applicable regulatory authorities, the right of access to the applicable areas of facilities and to applicable documented information, at any level of the supply chain.  Acceptance of this purchase order represents the acknowledgement and acceptance of these requirements, as well as the full purchase order terms and conditions, and the supplier’s willingness and ability to flow these requirements down to its external providers.


If Supplier’s place of business is within the United States, then any dispute relating to the interpretation, enforcement, performance, or termination of this Agreement that the parties are unable to resolve following good faith discussions between themselves shall be resolved in the federal courts of the State of California. In the event of any litigation involving this Agreement, the prevailing party shall be entitled to recover from the other party its reasonable attorney fees and costs associated with such litigation. If Supplier’s place of business is outside of the United States, then any dispute relating to the interpretation, enforcement, performance, or termination of this Agreement that the parties are unable to resolve following good faith discussions between themselves shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Claims shall be heard by a single arbitrator. The arbitrator shall be experienced in the industry and/or Goods governed under this Agreement. The place of arbitration shall be Irvine, California. The prevailing party shall be entitled to an award of reasonable attorney fees. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.


Any notices shall be in writing by prepaid certified or registered mail, return receipt requested, by private international courier, or by nationally recognized overnight delivery service for next business day delivery, given to the parties at their respective addresses set forth on the Purchase Order. This Agreement is governed by and construed in accordance with the laws of the State of California (without regard to the choice of law principles thereof), specifically including the provisions of the Uniform Commercial Code, as adopted by that state, and the federal laws of the United States of America applicable therein. Suntsu’s remedies herein are cumulative and additional to any other rights and remedies provided in law or equity. Suntsu and Supplier, in the performance of their obligations hereunder, are acting as independent contractors. No agency, partnership, joint venture or other employer-employee relationship, express or implied, is intended or created. The provisions of this Agreement which by their nature are intended to survive this Agreement shall survive the termination or expiration of this Agreement. This Agreement may be amended, and any provision hereof waived, but only in writing signed by the party against whom such amendment or waiver is sought to be enforced. Waiver by Suntsu of any provision hereof shall not be deemed a waiver of future compliance therewith. Unless the context of this Agreement clearly requires otherwise, the words “include,” “includes” and “including” do not limit the preceding terms or words and shall be deemed to be followed by the words “without limitation.” The Section captions herein are for reference only and shall in no way limit or define the meaning of the provisions hereof. Supplier shall not assign or delegate any of its rights or the performance of any of its obligations under this Agreement (by contract, merger, consolidation, operation of law, or otherwise) without written consent of Suntsu. Any change of more than 50% in interest in the direct or indirect ownership of Supplier (determined on a cumulative basis) and whether as a result of a sale of stock or other ownership interests and whether voluntarily or involuntarily will be deemed an assignment within the meaning of the foregoing.


Last updated: June 06, 2024