“Customer” means the entity identified in and executing the Order as the customer.
“Products” and “Services” means, respectively, any products and services described in the Order.
“Order” means a purchase order signed by Customer and referring to, incorporating or attaching to these terms and conditions, for the delivery of Products and/or provision of Services to Customer.
“Price” means the price of Products and/or Services as set out in the Order; and
“Supplier” means the person, firm or company named as such in the Order as responsible for supplying Products and/or Services.
“Terms” means these Purchase Order Terms and Conditions.
2. ACCEPTANCE OF ORDER
The Order will be deemed to be accepted by Supplier upon: (a) Supplier’s execution and return of an acknowledgement copy of the Order, (b) Supplier’s failure to respond to the Order within five (5) days after receipt thereof, or (c) execution or commencement of performance or delivery of the Services and/or Products, as applicable, pursuant to the Order. Additional or different terms proposed in any other document created by Supplier are hereby rejected, and will apply only if and insofar as those terms have been expressly accepted in writing by Customer.
3. PRODUCTS AND SERVICES
It is a condition of the Order that: (a) all Products meet the specifications referred to in the Order as to quantity, quality, and description, any other information or instructions specified or made known to Supplier in writing, and all applicable safety and performance standards, and (b) the Services are provided in accordance with the terms of the Order and are executed with professional care, skill and diligence by properly qualified and experienced personnel.
The Prices will be fixed, not to exceed prices, and will include all royalties, license fees, taxes, excises,duties and costs, both direct and indirect, of supplying all Productsand/or Services except that, where Products and/or Services aresubject to Value Added Tax, the amount legally due will bespecified as a separate item of account on any invoice for theProducts and/or Services.
5. DELIVERY OF PRODUCTS / PROVISION OF SERVICES
Time is of the essence under this Order. The time and place of delivery of Products are as specified in the Order. If Products are not delivered in accordance with the Order, Customer reserves the right, without liability, in addition to its other rights and remedies, to cancel that part of the Order not delivered. Supplier will be responsible for any additional expenses necessary to deliver Products in an expedited manner or in a manner requested by Customer if Products are not delivered in accordance with the Order. The terms of delivery will be “DDP” (Delivered Duty Paid) unless otherwise agreed in writing by Customer. Supplier will package and label all Products in a manner suitable for safe transit and storage, at Supplier’s expense (unless otherwise agreed to in writing by Customer) and in accordance with the Order. Supplier will immediately notify Customer of any delay or potential delay in the performance or delivery of the Products and/or Services, and will state the events causing such delay.
6. CHANGES AND CANCELLATIONS
Subject to Supplier’s prior written consent, (1) Customer may suspend, without any charge, any delivery or any acceptance of delivery covered by these Conditions, to the extent and for such period as Customer considers necessary; and (2) Customer may make other changes (including in designs and specifications) with respect to the Order, in whole or in part, by notice to Supplier. If Customer terminates the Order at least ninety (90) days prior to the delivery date (the “Modification Date”), Customer will have no liability to Supplier with respect to such termination. If the Order is terminated after the Modification Date, such termination will not constitute a default by Customer, and Customer’s sole liability to Supplier with respect to the Order will be: (a) for standard Products, a restocking charge equal to two and a half percent (2.5%) of the purchase price for the Products canceled, and (b) for non-standard Products, the actual, reasonable and substantiated costs incurred by Supplier for raw materials and work in process (excluding any anticipatory profit or cover of fixed costs on the work terminated). The total amount of any payments owed by Customer pursuant to the foregoing will not exceed the total Order Price as reduced by the amount previously paid.
7. ACCEPTANCE OF PRODUCTS AND SERVICES
All Products and Services are subject to inspection and testing by Customer. In any case where Products or Services (whether or not inspected or tested by Customer) do not comply with the requirements of the Order or applicable specifications and standards, Customer has the right to have Supplier repair, replace or re-perform such Products or Services at the expense of Supplier or to reject such Products or Services. When rejecting Products or Services, Customer will give notice of rejection to Supplier specifying the reasons for the rejection, and will return any rejected Products to Supplier at Supplier’s risk and expense. Supplier will, without being granted an extension of the delivery period, replace or repair (at the discretion of Customer) any rejected Products and re-provide any rejected Services, with such replacement Products and Services being in all respects in accordance with the Order and applicable specifications and standards.
8. OWNERSHIP, TITLE AND RISK OF LOSS
Unless otherwise agreed to in writing by Customer and Supplier, title to and risk of loss of all Products will pass to Customer upon delivery of such Products to Customer in accordance with the Order and applicable Product specifications and standards, without prejudice to any right of Customer to reject such Products under these Terms or otherwise. All items and information that are provided by Customer to Supplier for the performance of an Order will remain the property of Customer. Supplier will not use such items on behalf of third parties, nor will Supplier allow third parties to use such items in connection with any purpose other than the performance and/or delivery of an Order for Customer on Supplier’s behalf.
Customer will only be obligated to pay the Prices for Products and/or Services specified in the Order. If Products and/or Services have been accepted by Customer in accordance with the Order or Customer’s requirements, Customer will, unless otherwise shown on the Order, pay undisputed invoice amounts within thirty (30) days from the end of the month during which the invoice relating to the Order is received by Customer.
10. INTELLECTUAL PROPERTY
With respect to any Products or Services that consist of, contain, or are furnished with software or documentation, Supplier hereby grants to Customer a non-exclusive, transferable, license under all of Supplier’s intellectual property rights in and to such software, solely to the extent necessary for Customer to use and/or distribute such Products and enjoy the full benefits of such Services in connection with Customer’s business. If Supplier manufactures Products or provides Services pursuant to specific instructions of Customer, Supplier hereby assigns and will assign and transfer to Customer, all rights, title and interest in and to any and all intellectual property rights related to such Products and/or Services (including ancillary rights to software, inventions, drawings, designs, other copyrightable materials, feasibility studies, improvements, developments and discoveries, etc.) made, conceived, reduced to practice, or originated as a result of Customer ordering any Products and/or Services from Supplier (collectively, the “Inventions”). The Inventions will be the sole property of Customer, and Supplier will cooperate in the execution of any formalities necessary to effectuate the transfer of the ownership of such intellectual property rights and to enable Customer to obtain, perfect, defend and enforce its rights in and to all such Inventions. If, pursuant to the Order, any Products which are protected by one or more intellectual property rights owned by Customer are provided by Customer to Supplier, Supplier will be licensed to use these intellectual property rights for the execution of the concerned Order only, and Supplier will not in any way, by implication or otherwise, claim title or any other rights to such intellectual property rights.
The existence and terms of the Order (including these Terms),along with any data, specifications, drawings, technology or otherinformation or materials that are provided by Customer inconnection with the Order, any information or materials that arerelated to Customer’s business, technology, prospects, or financialcondition, and any other proprietary or confidential information ofCustomer which Supplier may obtain from Customer, including allSupplier information derived from or incorporating any of theforegoing, will be deemed to be Customer’s confidentialinformation, and will be maintained by Supplier as confidentialusing at least the same degree of care that Supplier uses to protectits own confidential information, and not less than reasonable care.Supplier will not disclose any such information or materials to thirdparties or use or copy such information or materials other than as isnecessary to satisfy the requirements of the Order. Supplier will promptly return or destroy, when and as requested by Customer, allof the foregoing information and materials. Supplier will not,without the prior written consent of Customer, advertise or publish in any way the fact that Supplier has contracted to supply Productsand/or Services to Customer.
12. LIMITATIONS OF LIABILITY
IN NO EVENT WILL CUSTOMER BE LIABLE FOR ANTICIPATED OR LOST PROFITS OR FOR SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT OF THESE TERMS OR AN ORDER. CUSTOMER’S TOTAL AGGREGATE LIABILITY ARISING OUT OF ALL CLAIMS OF ANY KIND FOR ANY LOSS OR DAMAGE ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT OF THESE TERMS OR AN ORDER, OR FROM THE PERFORMANCE OR BREACH THEREOF, WILL NOT EXCEED THAT PORTION OF THE TOTAL ORDER PRICE ALLOCABLE TO THE PRODUCTS, THE SERVICES, OR THE UNIT(S) THEREOF WHICH GAVE RISE TO THE CLAIM. CUSTOMER SPECIFICALLY REJECTS, AND WILL NOT BE LIABLE FOR, ANY CANCELLATION CHARGES, LATE FEES, PENALTIES, OR LIQUIDATED DAMAGES.
Supplier will defend, indemnify and hold harmless Customer, its agents, employees, officers, customers, successors, and assigns from and against any and all third party claims, demands, actions, suits, damages, losses, liabilities and costs (including settlement costs and attorneys’ fees) (“Claims”) arising from or with respect to: (a) any violation or alleged violation by Supplier of any laws or regulations, (b) any infringement or alleged infringement of intellectual property rights in connection with the Order or the Products or Services, (c) any actual or alleged loss, damage to, or destruction of property and/or death, illness or injury to any person arising out of any defects or hazards in Products, or Supplier’s performance of, or failure to perform, any of Supplier’s obligations, including any Services, or (d) any act or omission by Supplier in the performance of or in connection with Supplier’s obligations pursuant to the Order. The foregoing obligations will apply regardless of whether the loss in question arises in part from any negligent act or omission of Customer or whether Customer is deemed to be strictly liable. Supplier will defend or settle all Claims utilizing counsel approved by Customer. Customer may participate in the defense without relieving Supplier of its obligations hereunder and Supplier will at all times consult with and keep Customer apprised of the status of any Claims. Supplier will not settle any Claim without the written consent of Customer. In the event of an infringement Claim, Supplier, at its own expense, will promptly: (a) obtain the right for Customer to continue to sell, use and distribute Products or the Services, or (b) modify Products or the Services so as to eliminate the purported infringement while still complying with all the requirements of the Order.
Supplier and any permitted subcontractors engaged by Supplier will at all times maintain insurance policies with reputable insurance companies against all insurable liability under the Order and in respect of the Products and/or the Services including, without limitation, against all of Supplier’s liabilities under Section 13 (Indemnification). Such insurance policies will name Customer as an additional insured.
Notwithstanding any contrary provisions of these Terms or the Order, Customer may terminate the Order at any time, in whole or in part, with no liability or obligation to Supplier, by written notice to Supplier, if : (a) Supplier fails to comply with any of the terms and conditions of the Order (including these Terms), (b) Supplier submits a voluntary bankruptcy petition, becomes subject to involuntary bankruptcy proceedings, or otherwise becomes insolvent, dissolves, ceases to conduct its business in the ordinary course, or a receiver in bankruptcy is appointed, or takes possession of or sells an asset of Supplier, or (c) Supplier, directly or indirectly, is acquired by or merged with any third party. If any of the events described in subsections (a)-(c) above occurs or is about to occur, Supplier will notify Customer immediately, and Customer may, at its discretion and in addition to any of its other rights, return at Supplier’s risk and expense any Products delivered which are no longer usable, and claim a refund of the payments made for these Products, or, after a written notification to Supplier, complete the Order itself or engage a third party to do so. Sections 1, 10-14 and 16-18 will survive any termination or expiration of the Order and these Terms.
Supplier represents and warrants: (a) at delivery, the Products and Services will be new and free from defects in workmanship, materials, manufacture, and design, and will be free and clear of any liens, claims, encumbrances and other restrictions; (b) all Products and Services will conform to any applicable specifications, quality, performance and other Customer requirements; (c) the Products and Services will be merchantable, fit for Customer’s particular purposes, and sufficient for the uses intended by Customer; (d) the Products and Services, and Supplier’s performance under the Order and these Terms, will comply in all respects with any applicable statutes, laws, rules or regulations; (e) the purchase, sale, use, and license of Products and Services provided hereunder will in no way infringe or violate any copyright, trade secret, trademark, patent or other proprietary rights of any third party, and (f) Supplier will not export, re-export, sell, resell or transfer any Products, Customer confidential information or any other export-controlled commodity, technical data or software (i) in violation of any law, regulation, order, policy or other limitation imposed by the United States (including the United States Export Administration Regulations) or any other government authority with jurisdiction; or (ii) to any country for which an export license or other governmental approval is required at the time of export, without first obtaining all necessary licenses or equivalent and without obtaining Customer’s prior written consent. Additionally, prior to Supplier providing any Products, or any export-controlled commodity, technical data or software to Customer that is subject to the United States Export Administration Regulation, Supplier will notify Customer of this fact and not provide any such items to Customer without Customer’s prior written consent. Supplier will notify Customer of changes, if any, to classifications, export licenses, and any other determinations related to the Deliverables, Products, technical data and software previously supplied to Customer in written format with supporting information and reason for such change. The foregoing warranties are in addition to all other warranties of Supplier, express or implied, and will survive any delivery, inspection, acceptance and payment by Customer. Customer’s approval of Supplier’s materials or designs will not relieve Supplier of the warranties set forth herein. The foregoing warranties will be effective for a period of twelve (12) months after the applicable Product is commissioned. The warranty period will be extended by the amount of time the Products cannot be used due to a defect covered by these warranties. If any Product or Service does not conform to the foregoing warranties or the other requirements of the Order, Customer may, at its sole discretion, (i) require Supplier to deliver a replacement, repair the Product, or provide a conforming Service to Customer no later than ten (10) days after Customer’s notice of non-compliance (unless another time period is agreed to by the parties), (ii) repair or replace the non-conforming Product itself and recover its reasonable expenses related thereto from Supplier, or (iii) return such non-conforming Product to Supplier, at Supplier’s expense, and recover from Supplier the Price thereof. The foregoing remedies are in addition to all other remedies at law or in equity or under this Order, for damages or otherwise.
17. GOVERNING LAW; ENTIRE AGREEMENT
The Order and these Terms are governed by and will be construed in accordance with the laws of the State of California, without regard to conflict of laws provisions. The parties agree that the UN Convention on Contracts for the International Sale of Goods will not apply to the Order or these Terms. Customer and Supplier irrevocably consent to the exclusive jurisdiction of the state and federal courts situated in City and County of San Francisco, California in connection with any action brought by either party to enforce the provisions of this Order, to recover damages or other relief for breach or default under this Order, or otherwise arising under or by reason of this Order. The Order (including these Terms) constitutes the entire agreement between Supplier and Customer for Products and/or Services purchased hereunder and supersedes all prior written or oral understandings or agreements relating to the same. No modification of this Order will be binding on Customer unless set forth in an agreement specifically referencing this Order and signed by an authorized agent of Customer.
Supplier may not assign, transfer, or subcontract any of its rights or obligations under the Order without the prior written consent of Customer. Such consent will not release Supplier from any obligations or liability arising from an Order. Customer may assign or transfer any Order, including these Terms, without Supplier’s consent. The rights and remedies afforded to Customer under these Terms are in addition to, and not exclusive of, any and all statutory and common law rights available to Customer. A failure or delay of Customer to exercise any right or remedy provided by these Terms or by law will not constitute a waiver of that right or remedy, or a waiver of any other rights or remedies. Supplier and Customer are independent contractors; neither is an agent or employee of the other or has any authority to assume or create any obligation or liability of any kind on behalf of the other. Any provision of the Order that is invalid or unenforceable under applicable laws with respect to a particular party or circumstance will be severed from this Order with respect to such party or circumstances, without invalidating the remainder of this Order or the application of such provision to other persons or circumstances.