PURCHASE ORDER TERMS AND CONDITIONS
These Purchase Order Terms and Conditions (these “Terms”) govern the accompanying purchase order issued by Antheia, Inc. (“Buyer”) to the entity designated as vendor in the purchase order (“Vendor”) for the purchase of any products and services identified therein (respectively, the “Products” and the “Services”).
Any written acknowledgment of acceptance of the purchase order by Vendor or any fulfilment or partial fulfilment (e.g., shipment or delivery of the Products or provision of the Services) under the purchase order shall constitute acceptance of these Terms and such purchase order by Vendor (once accepted, the “Purchase Order”).
The Purchase Order incorporates by reference these Terms and all Specifications (as defined herein) applicable to the Products and Services identified in the Purchase Order; together, they constitute the final, complete, and exclusive agreement between Buyer and Vendor with respect to the ordering and purchase of such Products and Services, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, relating to the subject matter hereof.
BUYER HEREBY OBJECTS TO AND REJECTS ALL ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS PROPOSED BY VENDOR BY QUOTATION, INVOICE, ACKNOWLEDGEMENT OR OTHERWISE, WHETHER PREVIOUS, CONCURRENT OR SUBSEQUENT HERETO. PAYMENT FOR OR ACCEPTANCE OF PRODUCTS OR SERVICES SHALL NOT CONSTITUTE ACCEPTANCE OF VENDOR’S TERMS AND CONDITIONS IF THEY DIFFER FROM THESE TERMS.
If, on the date the Purchase Order is accepted, Buyer and Vendor are parties to a separate mutually executed agreement that contemplates Buyer’s purchase of Products or Services from Vendor ordered with the Purchase Order (a “Separate Agreement”), then the provisions of such Separate Agreement are incorporated herein by reference. If a conflict arises between the Purchase Order and these Terms, on the one hand, and such Separate Agreement, on the other, the terms of the Separate Agreement will apply; provided, however, that in no event will any separate terms of Vendor, including terms on any quote or invoice of Vendor, or similar document, or online terms or agreements that Buyer accepts to login or access Vendor’s services, such as a software as a service or platform, constitute a Separate Agreement or be deemed to replace, supplement or amend the Purchase Order and these Terms in any way.
2. Supply of Products and Services.
(a) Specifications. Vendor shall deliver the Products and perform the Services in accordance with the Purchase Order, including these Terms and the specifications, drawings, designs, and other requirements applicable to such Products and Services that Vendor makes available to Buyer or Buyer provides to Vendor (the “Specifications”), and with the skill, care, prudence and foresight of a diligent Vendor of such Products and Services. Any items, services, functions or responsibilities not specifically described in the Purchase Order that are reasonably necessary for the proper supply of the Products and Services are deemed to be included within the scope of the Products and Services to be delivered for the Price (as defined herein). Vendor acknowledges that time, quantity, and location are of the essence with respect to Vendor’s obligations hereunder, including with respect to the timely delivery of the Products and performance of the Services.
(b) Services. If Buyer procures any Services (e.g., engineering design services, or research and development) under the Purchase Order, whether alone or in connection with the purchase of Products from Vendor, the Purchase Order shall describe such Services, either on the face of the Purchase Order or in statements of work/work orders that are attached to and referenced in the Purchase Order. For the avoidance of doubt, any such statements of work/work orders or other attachments shall be incorporated and made part of the Purchase Order.
(c) No Changes. Vendor shall not, without Buyer’s prior written consent (i) change the Specifications, the manufacturing process, any ingredients or components used to produce the Products, or the approved plant or agreed delivery method, or (ii) implement any changes that would materially alter the Products.
The price for the applicable Products or Services payable by Buyer to Vendor (“Price”) shall be as set forth on the face of the Purchase Order and includes all applicable sales, use, consumption, transfer, excise, stamp, customs, value-added or similar taxes, duties, and charges, including but not limited to, all packaging and transportation costs of such Products and tangible deliverables of the Services to the Delivery Point(s). The price for the Products and Services ordered hereunder shall be the lower of: (i) the price stated on the accompanying Purchase Order, or (ii) the standard price charged by Vendor to similarly situated customers at the time of shipment of Products or provision of Services, of the same kind and quality, and taking into account quantity discounts. If Vendor sells any Product or Service to any similarly situated customer at a net price less than the Price set forth in the Purchase Order (of the same kind and quality, and taking into account quantity discounts), Vendor shall adjust the Price to the lower price for any un-invoiced Products and Services and for all future invoices for such Products and Services. Vendor shall issue a separate invoice for each separate shipment. Each invoice shall include: (a) the Purchase Order number; (b) Buyer’s part numbers or SKUs; and (c) quantities shipped. Undisputed amounts shall be paid within thirty (30) days of receipt and acceptance of Products or Services and a correct invoice. Buyer may withhold payment of any invoiced amounts that it disputes in good faith and the parties shall work in good faith to resolve any such billing disputes. Any such billing disputes shall not be cause for Vendor’s nonperformance of Services and/or non-delivery of Products, as the case may be, under these Terms or a Purchase Order. Payment by Buyer shall not result in a waiver of its rights under these Terms or any Purchase Order. Delays in receipt of Products or Services, acceptance of Products or Services, or a correct invoice will be just cause for Buyer to withhold payment and shall not affect discount privileges. Early payment discounts, if any, shall be computed as commencing with receipt of the invoice or Products or Services, whichever is later. Buyer may at any time, without notice to the Vendor, deduct from or set off against any sums due by it to Vendor any sum which is payable by Vendor to Buyer under the Purchase Order or any other agreement.
(a) Delivery Requirements. For each Purchase Order, Vendor shall deliver the quantity/quantities of Products specified in such Purchase Order to the address/es specified in the Purchase Order (“Delivery Point(s)”) and on the date(s) specified therein (“Delivery Date(s)”). Delivery times will be measured to the time that the Products are actually received at the Delivery Point. Vendor will be solely responsible for all shipping costs. If Vendor does not comply with any of its delivery obligations under this Section 4, Buyer may, in Buyer’s sole discretion and at Vendor’s sole cost and expense, (i) approve a revised Delivery Date, (ii) require expedited or premium shipment, or (iii) cancel the Purchase Order. Unless otherwise expressly agreed to by the parties in writing, Vendor may not make partial shipments of Products to Buyer. Quantities of Products ordered may not be changed by Vendor without the prior written approval of Buyer. If the total or any portion of the Products received either exceeds or falls below the quantities ordered,
Buyer shall have the option to reject and return any such shipments or portions thereof at Vendor’s expense for transportation both ways and all related labor and packing costs. If Buyer does not reject the Products and instead accepts the delivery of Products at the increased or reduced quantity, the Price for the Products shall be adjusted on a pro-rata basis.
(b) Customs Clearance. For shipment of Products imported into the commerce of the United States from a foreign jurisdiction, Vendor shall promptly provide Buyer with a commercial invoice that includes the information required by 19 CFR 141.86, as supplemented and/or amended from time to time. Vendor shall remain fully responsible for its compliance obligations under these Terms and each Purchase Order.
5. Packing and Labelling. Unless otherwise specified by Buyer in writing, all Products shall be packed, packaged, marked, and otherwise prepared for shipment according to Buyer’s instructions, if any, and otherwise in a manner which is (i) in accordance with good commercial practice, (ii) acceptable to common carriers for shipment at the lowest rate for the particular Products, (iii) in accordance with all applicable laws, ordinances, rules and regulations, applicable tariffs, governmental laws and regulations, and (iv) adequate to ensure safe arrival at the designated Delivery Point(s). Vendor will not charge Buyer for packaging or pre-shipping costs, such as boxing, crating, handling damage, drayage, or storage. Vendor shall mark all containers with necessary lifting, handling and shipping information, Purchase Order numbers, and date of shipment. Vendor shall provide Buyer with an itemized packing list documenting the Purchase Order number, Vendor’s identification number for the shipped Products, the quantity of pieces in the shipment, the number of cartons or containers in the shipment, Vendor’s name, the bill of lading number, and the country of origin.
6. Title; Risk of Loss. Title to the Products shipped hereunder passes to Buyer upon the earliest to occur of (i) delivery of the Products to Buyer at the Delivery Point, (ii) payment of any portion of the Price for such Products by Buyer, (iii) Buyer’s acceptance of the Products, and (iv) Vendor’s tender of the Products to the carrier. Title will transfer to Buyer even if Vendor has not been paid for such Products, provided that Buyer will not be relieved of its obligation to pay for Products in accordance with the terms hereof. Not withstanding any agreement between Buyer and Vendor concerning the transfer of title or responsibility for shipping costs, and unless designated otherwise:
(a) For domestic orders: all deliveries are F.O.B. Destination to Delivery Point on the accompanying Purchase Order and
(b) For international orders: all deliveries are Delivered Duty Paid as defined by Incoterms and updated from time to time. The Products and Services shall be delivered free and clear of any lien, security interest, claim or encumbrance whatsoever.
7. Order Changes, Rescheduling, and Cancellations.
(a) Changes. Buyer may at any time upon written notice to Vendor request changes in the designs, quantities, Specifications, packaging, Delivery Time(s), Delivery Point(s), or method of transportation for any Products ordered or Services to be performed hereunder. If any such changes cause an increase or decrease in the Price, or the time required for performance, Vendor shall send, prior to delivery or performance, a written claim for any adjustment in Price due to the change. If a claim for adjustment is not received prior to delivery or performance, Vendor waives any such right to make such a claim.
(b) Rescheduling for Later Delivery. Notwithstanding anything to the contrary contained herein, Buyer may, upon written notice to Vendor and at no additional charge, reschedule or put “on hold” the Purchase Order, in whole or in part, prior to the scheduled Delivery Date. Any “on hold” portion of the Purchase Order will be rescheduled within a reasonable time.
(c) Cancellations. (i) Buyer may cancel the Purchase Order, in whole or in part, at any time for any reason upon written notice to Vendor; provided that Buyer pays for (i) all Products, including Products manufactured to Buyer’s Specifications solely for Buyer and its customers, and not offered or sold by Vendor to other customers (“Custom Items”) and Services that are delivered prior to the date of cancellation and are accepted by Buyer in accordance with Section 8; and (ii) subject to the terms of Section 7(c) (ii), the net cost of any Custom Items that are in process on the date of cancellation. Upon Vendor’s receipt of a cancellation notice, Vendor shall, unless otherwise specified in such notice, immediately cease all cancelled Services and deliver all associated works in process. (ii) Within thirty (30) days after Vendor’s receipt of Buyer’s cancellation notice, if Vendor has any Custom Item in process as of the date of cancellation, Vendor shall submit to Buyer a written claim for the net cost of the cancelled Custom Item already in process, along with a summary of all of its mitigation efforts. Vendor shall, wherever possible, place such Custom Item in its inventory and sell it to other customers. In no event shall any claim for in-process Custom Items exceed the total Price for the Custom Items cancelled. Upon payment of Vendor’s claim, Buyer shall be entitled to all work and materials paid for in respect of such cancelled Custom Items. Before assuming any payment obligation under this Section, Buyer may inspect Vendor’s works in process and audit all relevant documents prior to paying Vendor’s invoice.
(d) Exclusive Remedies. Payment made under this Section 7 will constitute Buyer’s only liability in the event of changes or cancellations of the Purchase Order. Vendor’s acceptance of such payment will constitute an acknowledgement that Buyer has been fully discharged of any further liability.
8. Acceptance; Inspection.
Buyer shall have the right to inspect and test the Products (or a sample set of such Products) and/or Services (including any deliverables provided in connection therewith) on or after the Delivery Date, or at any other time, including during the manufacture and construction, or preparation, upon reasonable request. If upon inspection, Buyer determines that the Products and/or Services are defective or nonconforming (e.g., they fail to meet Buyer’s Specifications or standards, or are not of professional, technical, and general quality consistent with industry and applicable regulatory standards, or are missing parts), Buyer may, effective upon written notice to Vendor, elect any of the following remedies (without limiting any other rights it may have): at Vendor’s expense, Buyer may (i) reject the nonconforming or defective Products and Services only and cancel only the affected portion of the Purchase Order, in which case Buyer shall return the nonconforming or defective Products and deliverables to Vendor and Vendor will refund to Buyer any and all fees previously paid to Vendor for such Products or Services, but otherwise perform under the Purchase Order;
(ii) reject all delivered Products and Services and cancel the Purchase Order in its entirety, in which case Buyer shall return all delivered Products and deliverables associated with Services performed to Vendor and Vendor will refund to Buyer the fees paid for any or all rejected Products and/or Services, and the parties will have no further obligations to perform under the Purchase Order; or
(iii) reject the nonconforming or defective Products or Services and require replacement or re-performance, as applicable. If Buyer requires replacement and/or re-performance, Vendor shall, at no additional cost to Buyer, promptly replace the nonconforming or defective Products or deliverables and/or re-perform the Services, and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective Products and deliverables, and the delivery of replacement Products and deliverables. If Vendor fails to timely deliver replacement Products or deliverables or re-perform the Services, as appropriate, Buyer may procure replacement products or services from a third party and charge Vendor the cost thereof and cancel the affected Purchase Order.
All rejected Products will be held for Vendor’s prompt instruction and at Vendor’s risk. Rejected Products will be transported for return to Vendor or destroyed at Vendor’s cost. Nothing contained herein shall relieve in any way Vendor from the obligation of testing, inspection, and quality control. Payment for Products or Services prior to inspection shall not constitute acceptance 4 thereof and is without prejudice to any and all claims Buyer may have against Vendor or any other party.
Acceptance of all or part of the Products or Services shall not (a) bind Buyer to accept future shipments of goods or services; or (b) preclude Buyer from making any claim for damages or breach of warranty. No Products returned as defective by Buyer shall be replaced by Vendor without written permission of an authorized agent of Buyer.
(a) Buyer Intellectual Property. Unless otherwise expressly agreed to in the Purchase Order or in a separate writing that references the Purchase Order and is signed by duly authorized representatives of the parties, all Specifications, information, data, drawings, software and other items that are supplied to Vendor by or on behalf of Buyer (“Buyer Materials”) or obtained or developed by Vendor in the performance of the Purchase Order or paid for by Buyer shall be proprietary to Buyer, shall be used only for purposes of providing Products and Services to Buyer pursuant to the Purchase Order, and shall not be disclosed to any third party without Buyer’s express written consent. All Buyer Materials and items obtained or developed by Vendor in performance of the Purchase Order or paid for by Buyer shall be promptly provided to Buyer on request or upon completion of the Purchase Order. Without limiting the foregoing, (i) any invention or intellectual property first made or conceived by Vendor in the performance of the Purchase Order or which is derived from or based on the use of Buyer Materials shall be considered to be the property of Buyer; and Vendor shall execute such documents necessary to perfect Buyer’s title thereto; and (ii) subject to Section 9(b), any work performed pursuant to the Purchase Order which includes any custom development work shall be considered a “work made for hire” and Vendor hereby assigns to Buyer all its patent, copyright, and other intellectual property rights in and to such works effective immediately upon creation.
(b) Vendor Background Intellectual Property. Each party will own and retain all right, title and interest, including all copyrights, patents, trademarks, trade secrets, and other intellectual property and proprietary rights in and to any tangible or intangible property that it first created, conceived or fixed in tangible medium of expression, in whole or in part, prior to the execution of the Purchase Order, or it first creates, conceives or fixes in tangible medium of expression, in whole or in part, prior to the execution of the Purchase Order, or it first creates, conceives or fixes in tangible medium of expression, in whole or in part, outside the scope of the Purchase Order (“Background IP”).
Except for the licenses expressly granted in this Section 9(b), no party acquires any right, title or interest in the other party’s Background IP. Vendor hereby grants to Buyer a worldwide, irrevocable, non-exclusive, perpetual, paid-up and royalty free license for any Products or deliverables provided as part of the Services that include software or other intellectual property, including any Vendor Background IP incorporated therein, for Buyer’s business purposes. Vendor assigns and passes through to Buyer all of the third-party manufacturers’ and licensors’ warranties and indemnities for the Products and any such deliverables.
(a)General Warranty. Vendor represents and warrants to Buyer that: (i) it has full rights and authority to enter into and perform according to the Purchase Order, and its performance hereunder will not violate any agreement or obligation between it and any third party; (ii) the Products and the Services will conform to the description and applicable requirements, drawings, manufacturing data, data sheets, and standards stated or referenced in the Purchase Order and the applicable Specifications; (iii) it will perform the Services under the Purchase Order with the degree of high professional skill and sound practice and judgment which is normally exercised by recognized professionals with respect to services of a similar nature in accordance with generally recognized industry standards; (iv) neither the Products nor any tangible or intangible items delivered as a result of the Services do or will infringe or misappropriate any third party’s patent or other intellectual property rights; (v) neither the Products nor any tangible or intangible items delivered as a result of the Services do or will contain any virus or other contaminant, or disabling devices including, but not limited to, codes, commands or instructions that may be used to access, alter, delete, damage or disable the Items, or any hardware, software, devices, networks, systems, or other property of Buyer or its customers; and (vi) it has the rights and all necessary licenses and consents to deliver the Products and Services (including any associated tangible or intangible items provided in connection therewith), as contemplated herein.
(b)Product Warranty. Without limiting the generality of Section 10(a), Vendor warrants that for the Warranty Period (as defined herein), all Products will: (i) be free from any defects in workmanship, material and design; (ii) conform to the applicable Specifications; (iii) be fit for their intended purpose and operate as intended; (iv) be merchantable; and (v) be free and clear of all liens, security interests or other encumbrances (“Product Warranty”). Unless otherwise defined in the Purchase Order, the “Warranty Period” for Products shall be a period of one (1) year from the Delivery Date or installation date of such Products, whichever occurs later. These warranties survive any delivery, inspection, acceptance or payment of or for the Products by Buyer.
If, during the Warranty Period, Buyer gives Vendor notice of noncompliance pursuant to this Section 10(b), Vendor shall, at its own cost and expense, and at Buyer’s option, promptly replace or repair the defective or nonconforming Products (or parts thereof) to Vendorand the delivery of repaired or replacement Products (or parts thereof) to Buyer. Buyer will have no liability for any Products (or parts thereof) returned hereunder, and Vendor will bear all liability, responsibility, and expenses for them. If Vendor fails to correct defects in or replace nonconforming Products (or parts thereof) promptly, Buyer, after reasonable notice to Vendor, may make such corrections or replace such Products (or parts thereof) and charge Vendor for the cost incurred.
(c) Compliance Warranties. (i) Vendor represents, warrants, and agrees that it has complied, and will comply, with all laws, rules, regulations, and ordinances, proclamations, demands, directives, executive orders, or other requirements of the municipal, state, and federal governments and all subdivisions thereof which now govern or may hereafter govern the manufacture, sale, or delivery of the Products or performance of the Services contemplated by the Purchase Order, including, but not limited to environmental, health and safety laws, including laws restricting heavy metal content; employment and labor laws, including laws regarding child labor and human trafficking (and all reporting requirements of employment and labor laws, which reports Vendor will make available to Buyer on request); the U.S. Export Administration Regulations, the U.S. Department of Treasury’s Office of Foreign Assets Control sanctions programs, and end-user, end-use and destination restrictions by the U.S. and other governments as they apply to the Products and Services ordered hereunder; and any other applicable laws.
(ii) Vendor shall at all times comply with Buyer’s quality assurance requirements and shall remain responsible for quality assurance with respect to all Products and Services. Without limiting the foregoing, to the extent the Purchase Order relates to the purchase of any food, drug, cosmetic, medical device, or pesticide, or substance the intended use of which results or may reasonably be expected to result, directly or indirectly, in its becoming a component or otherwise affecting the characteristics of any food (including substances intended for use in producing, manufacturing, packing, processing, preparing, treating, packaging, transporting, or holding food), drug, cosmetic, medical device, or pesticide, Vendor hereby represents and warrants that: (i) the Products comprising each shipment made by Vendor to or on the order of Buyer, (a) are not adulterated or misbranded within the meaning of the Federal Food, Drug, and Cosmetic Act (the “FDCA”), and (b) do not contain an article that is prohibited, under the applicable provisions of the FDCA, from being introduced into interstate commerce; (ii) each chemical substance contained in the Products is on the inventory of chemical substances compiled and published by the Environmental Protection Agency (“EPA”) pursuant to the Toxic Substances Control Act (“TSCA”); (iii) the Products are in conformance with the requirements of all applicable laws and regulations including, but not limited to, the laws administered or issued by the Drug Enforcement Agency (e.g., the Controlled Substance Act), the U.S. Food and Drug Administration (“FDA”) (e.g., the FDCA and the Fair Packaging and Labeling Act), the Federal Insecticide, Fungicide, and Rodenticide Act, and all similar federal, state, or local codes, regulations, rules, and orders relevant to Buyer’s resale, re-packaging, manufacturing, or use of such Products; and (iv) it shall obtain all necessary approvals from the FDA, EPA,
Department of Agriculture and any similar governmental authorities of foreign jurisdictions with respect to the manufacture, sale, or delivery of the Products or performance of the Services contemplated hereunder.
The warranties set forth in this Section 10 are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Buyer’s discovery of the noncompliance of the Products or Services with the foregoing warranties.
11. Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY LAW: (I) IN NO EVENT WILL BUYER’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS PURCHASE ORDER (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, MISREPRESENTATION, INFRINGEMENT OR OTHER CONTRACT OR TORT CLAIMS) EXCEED THE TOTAL FEES PAID BY BUYER TO VENDOR DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; AND (II) IN NO EVENT SHALL BUYER BE LIABLE FOR INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS PURCHASE ORDER EVEN IF INFORMED OF THE POSSIBILITY THEREOF IN ADVANCE.
The Parties agree that the limitations of liability set forth in this Section 11 will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The Parties acknowledge that the prices have been set and these Terms and the Purchase Order have been entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
12. Confidential Information.
(a) Confidentiality. Vendor shall not, without first obtaining the written consent of Buyer, in any manner disclose or publish the fact that Vendor has contracted to furnish Buyer the Products or Services herein ordered. In connection with these Terms or a Purchase Order, Buyer may disclose to Vendor, through observation or otherwise, Confidential Information (as defined below). During the term of these Terms and thereafter, until all such Confidential Information becomes publicly known or made generally available through no action or inaction of Vendor, Vendor (i) may not disclose Confidential Information to any third party without the prior written approval of Buyer; (ii) must restrict its use of Confidential Information to the intended purpose of the Purchase Order; and (iii) must limit dissemination of Confidential Information within its own organization to only those individuals who require disclosure for performance of their duties and who are bound to confidentiality obligations at least as protective as those contained herein. Vendor shall exercise the same degree of care for the Confidential Information of Buyer as it uses to protect its own confidential information, but in any event, not less than reasonable care. The phrase “Confidential Information” shall mean all information concerning Buyer unless specifically identified as “non-confidential,” including, but not limited to, all of Buyer’s confidential or proprietary information, trade secrets, data, know-how, formulas, designs, drawings, photographs, documentation, forms of software or electronic media, equipment, processes, ideas, methods, concepts, facilities, construction plans and specifications, research, development, and business and financial information. At Buyer’s request, all tangible Confidential Information possessed by Vendor, including, but not limited to, all copies, translations, interpretations and adaptations thereof must be returned immediately to Buyer. Notwithstanding the restrictions set forth above, if Vendor is required by law to disclose any Confidential Information, Vendor may make the required disclosure, provided that prior to making any such disclosure, Vendor shall provide Buyer with: (i) written notice of the proposed disclosure in order to provide Buyer with sufficient opportunity to seek a protective order or other similar order preventing or limiting the proposed disclosure; and (ii) reasonable assistance in seeking such protective order or other similar order.
(b) Security. Vendor represents and warrants that it has adequate and appropriate technical, physical, and organizational controls to ensure the confidentiality, privacy, security and integrity, availability and resilience of Buyer Confidential Information and to protect against unauthorized access to or use of Buyer Confidential Information (including, without limitation, where such information is transmitted over a network) that could result in the loss, corruption, destruction, unauthorized use, modification, or disclosure of or interference with Confidential Information, or the substantial harm or inconvenience to Buyer (each a “Security Incident”). Such technical and organizational controls shall also prevent, detect, respond and mitigate a Security Incident. Vendor shall have and maintain industry standard or better certifications and audits procedures. Vendor acknowledges and agrees that Buyer shall have the right to require additional reasonable protections related to the confidentiality, privacy and security of Confidential Information in connection with the Purchase Order or any renewal or amendment thereof, and Vendor shall agree to such additional reasonable protections as Buyer may reasonably require.
(a) Term. Each Purchase Order shall commence upon Vendor’s acceptance of the Purchase Order and shall continue through Buyer’s acceptance of such Services or Products, as may be further specified in the Purchase Order. These Terms shall remain in effect for so long as any Purchase Order is in effect.
(b) Termination. (i) By Vendor. Vendor may terminate these Terms or any Purchase Order, in whole or in part, immediately upon notice to Buyer if: (i) Buyer materially breaches these Terms or the terms and conditions set forth in a Purchase Order, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach; or (ii) Buyer becomes insolvent or otherwise makes an assignment for the benefit of creditors, commits an act of bankruptcy or files or has filed against it a petition in bankruptcy or reorganization proceedings. (ii) By Buyer. In addition to Buyer’s termination rights set forth elsewhere herein, Buyer may terminate these Terms or any Purchase Order, in whole or in part, in its sole discretion: (i) upon fifteen (15) days prior written notice to Vendor for any reason; (ii) immediately upon written notice to Vendor if Vendor breaches these Terms or any Purchase Order; (iii) if reasonable grounds for insecurity arise with respect to Vendor’s performance and Vendor fails to furnish adequate assurances within five (5) days after written demand by Buyer for such assurance; or (iv) immediately upon written notice to Vendor if Vendor becomes insolvent or otherwise makes an assignment for the benefit of creditors, commits an act of bankruptcy or files or has filed against it a petition in bankruptcy or reorganization proceedings. During any notice period, Vendor shall cease to provide the cancelled Services or Products, as the case may be, to Buyer as soon as commercially practicable after receiving such notice.
(c) Effect of Termination/Expiration. Upon termination or expiration of these Terms or any Purchase Order: (i) Buyer shall be entitled to the ownership, possession, use and license of any and all work in process under any Purchase Order to which it is entitled pursuant to Section 9; (ii) Vendor shall invoice Buyer for all outstanding fees and expenses incurred for Services satisfactorily performed and/or Products delivered under each Purchase Order through and including the date of any such termination or expiration; and (iii) Vendor shall return all Confidential Information to Buyer, or destroy all Confidential Information and certify to Buyer its compliance with this obligation. In addition, the following Sections shall survive any termination or expiration of a Purchase Order or these Terms: 1, 6, 9-12, 13(c), and 14-23.
Vendor shall ensure that it has, and shall maintain in place for a period of time not less than two (2) years after the date of the last sale of Products or Services covered by the Purchase Order, adequate general liability insurance and as relevant, professional liability, product liability and/or other insurance and shall provide satisfactory evidence at Buyer’s request.
(a) Indemnity. To the fullest extent permitted by applicable laws, Vendor hereby agrees to defend, indemnify, and hold harmless Buyer, its affiliates (and their respective directors, officers, employees, agents, successors and assigns) (each, an “Indemnified Party”) from and against any and all claims, liabilities of every kind, including liability based on contributory, vicarious, or any other doctrine of secondary liability, or character, (collectively, “Losses”) arising out of or relating to any and all claims, liabilities, liens, demands, obligations, actions, proceedings, suits, causes of action of every kind (regardless of whether or not such Losses are caused in part by a party indemnified hereunder) arising out of or related to: demands, damages, judgments, awards, settlements, expenses, or losses, including costs of litigation and reasonable attorneys’ fees, arising, directly or indirectly, from: (i) a breach by Vendor of the representations, warranties, covenants, and any other provisions set forth in these Terms or a Purchase Order Terms and Conditions, including, but not limited to, any confidentiality, privacy and/or security obligation stated in Section 12 and the obligations to comply with laws; (ii) any claim charging that Vendor’s provision or Buyer’s purchase or use of the Products or Services provided under these Terms or a Purchase Order constitutes misappropriation or infringement of any intellectual property rights or breach of a confidential relationship; (iii) injury to or death of any person or damage to any property resulting from and/or caused by Vendor or its personnel in connection with the Vendor’s performance or nonperformance of Vendor’s obligations under these Terms or a Purchase Order; or (iv) the negligence or willful misconduct of Vendor or its personnel. If the Products or Services, or the use of such Products or Services, are held to constitute an infringement or misappropriation and their sale or use is enjoined, Vendor shall, at Vendor’s expense and option, either procure for Buyer the right to continue to use such Products or Services, or replace the same with equivalent non-infringing Products or Services, or modify the same so they become equivalent non-infringing Products or Services; except that if the foregoing is not commercially practicable or upon request by Buyer, Vendor shall refund to Buyer all fees paid by Buyer under the applicable Purchase Order for such Products or Services and those Products or Services that are dependent thereon.
(b) Process. Vendor shall keep the applicable Indemnified Party fully informed concerning the status of any litigation, negotiations or settlements of any claim, demand or action for which the Indemnified Party seeks indemnification hereunder. The Indemnified Party shall be entitled, at its own expense, to participate in any such litigation, negotiations and settlements with counsel of its own choosing. Vendor shall not have the right to settle any claim without the prior written consent of the Indemnified Party. This Section 15 shall not be construed to limit or exclude any other claims or remedies at law or in equity that an Indemnified Party may assert.
16. Force Majeure. Neither party shall be responsible for its failure to perform due to causes beyond its reasonable control such as acts of God, fire, theft, war, riot, embargoes or acts of civil or military authorities. If delivery is to be delayed by such contingencies, Vendor shall immediately notify Buyer in writing and Buyer may either (i) extend time of performance, or (ii) cancel the uncompleted portion of the Purchase Order at no cost to Buyer.
17. Trademarks and Press Releases.
Vendor will not in any way use or reference Buyer’s name or any trademark, including without limitation, as part of Vendor’s company or business name or any domain name, or any trade dress of Buyer except with the prior written permission of Buyer, which may be withheld in Buyer’s sole and absolute discretion. No news release, advertisement, public announcement, denial or confirmation of same, of any kind regarding any part of the subject matter of the Purchase Order shall be made without the prior written approval of Buyer, which may be withheld in Buyer’s sole and absolute discretion.
18. Governing Law.
The Purchase Order, including, for the avoidance of doubt, these Terms and all exhibits and/or attachments hereto and thereto, will be governed by, and interpreted and enforced in accordance with, the laws of the State of California without reference to the principles of conflicts of laws. The parties expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods or any other international convention governing sales of goods.
Any dispute or claim arising out of or in connection with a Purchase Order or these Terms will be finally settled by confidential binding arbitration, conducted in English, held in San Mateo County, California, in accordance with the rules of the American Arbitration Association by one arbitrator appointed in accordance with said rules. The arbitrator shall apply California law, without reference to rules of conflicts of law or rules of statutory arbitration, to the resolution of any dispute. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The decision of the arbitrator will be final and binding upon the parties, and may not be appealed. Notwithstanding the foregoing, the parties may apply to any court of competent jurisdiction for preliminary or interim equitable relief, or to compel arbitration in accordance with this paragraph, without breach of this arbitration provision. The fees and expenses of the arbitrator will be divided equally between the parties unless otherwise ordered by the arbitrator.
20. Assignment; Subcontracting.
Vendor shall not delegate any of its obligations hereunder and may not transfer or assign any right or interest under the Purchase Order, including these Terms, without Buyer’s prior written consent; any such attempted assignment or delegation will be void. Without limiting the generality of the foregoing, Vendor shall not subcontract any performance of the Services without Buyer’s prior written consent. Buyer may freely assign these Terms or any Purchase Order; provided that Buyer will provide Vendor with notice of any such assignment.
Vendor shall keep appropriate records (including in respect of ingredients, components and quality control of Products) for no less than five (5) years; or seven (7) years for financial information. Vendor shall at all times upon reasonable notice, allow Buyer to enter, access, inspect and audit all information, documentation and records related to the Products and Services.
All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and addressed to the parties at the addresses set forth on the face of the Purchase Order, or to such other address that may be designated by the receiving party in writing. All notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email (with specific reference to this Section) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided elsewhere in the Purchase Order, a notice is effective only (i) upon receipt of the receiving party, and (ii) if the party giving the Notice has complied with the requirements of this Section.
The relationship between the parties is that of independent contractors. Nothing contained herein shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
The Purchase Order, including these Terms, is for the sole benefit of the parties hereto and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of the Purchase Order.
In the event of an inconsistency in the face of the Purchase Order, any statements of work/work orders or Specifications that are attached to and/or referenced in the Purchase Order, and these Terms, unless otherwise provided herein, the inconsistency will be resolved by giving precedence in the following order: (i) these Terms, (ii) the Purchase Order face sheet; (iii) the applicable statement of work/work order, and (iv) the applicable Specifications.
The parties have expressly required that the Purchase Order, and all documents and notices relating thereto, including these Terms, be drafted in English. If where Vendor is based the official language is not English, the parties may agree to append to these Terms a translation of the Terms in the local language. In the event of any conflict between the English and the local language version of these Terms (or part hereof), the parties agree that the English version shall prevail.
If any term or provision of these Terms or a Purchase Order is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of the Terms or Purchase Order, or invalidate or render unenforceable such term or provision in any other jurisdiction.
No waiver by Buyer of any of the provisions of these Terms or a Purchase Order is effective unless explicitly set forth in writing and signed by Buyer. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from these Terms or a Purchase Order operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
No change, modification, or revision to the Purchase Order, including these Terms, shall be effective unless in writing and signed by Buyer’s duly authorized purchasing representative or officer.
The Purchase Order may be executed in counterparts, including execution by facsimile, pdf, or other electronic transmission, which, when taken together, will be deemed to constitute one and the same agreement.