SKYDIO PURCHASE ORDER TERMS AND CONDITIONS
These Skydio Purchase Order Terms and Conditions are applicable to all Purchase Orders with suppliers that, as of the date of the Purchase Order, do not have an executed Master Development and Supply Agreement or similar written agreement on file with Skydio, Inc. (“Skydio”).
- DEFINITIONS. The following definitions apply unless otherwise indicated:
- “Affiliate” means, with respect to any entity, any other entity that controls, is controlled by or is under common control with such entity, for so long as such control exists. For the purposes of this definition, the word “control” (including, with correlative meaning, the terms “controlled by” or “under the common control with”) means the actual power, either directly or indirectly through one or more intermediaries, to direct or cause the direction of the management and policies of such entity, whether by the ownership of more than fifty percent (50%) of the voting stock of such entity, or by contract or other means.
- “Authorized Purchaser”means any third party authorized by Skydio to order, test, purchase, take delivery of, inspect, accept, reject, return and otherwise act with respect to the Goods and/or Services on behalf of Skydio under a Purchase Order.
- “Buyer”means Skydio, Inc., a Delaware corporation located at 3000 Clearview Way, San Mateo, CA 94402 (“Skydio”), any Affiliates, and any Authorized Purchasers.
- “Seller” means the legal entity and any Affiliates of the supplier contracting with Buyer.
- “Purchase Order” or “PO” means any attached or separately issued applicable PO, these Skydio Purchase Order Terms and Conditions, and any written changes thereto, including special provisions, drawings, technical data, specifications, quality clauses, and all other documents incorporated herein.
- “Goods and/or Services” means separately (a) the goods, supplies, parts, assemblies, technical data, drawings, or other items to be furnished by Seller to Buyer including raw materials, components, and intermediate assemblies of such items, as applicable and (b) the services (if any) to be performed by Seller to Buyer.
- ACCEPTANCE AND TERMS. Seller accepts Buyer’s PO, and all terms and conditions contained therein including but not limited to these Skydio Purchase Order Terms and Conditions and all terms and conditions sent to the Seller by the Buyer via written communications (e.g., email) (collectively, the “PO Terms”), by: (a) executing and returning to the Buyer the PO, an acknowledgement form, or another written communication (e.g., email); (b) starting performance; (c) delivering any Goods and/or performing any Services; or (d) accepting payment. Any terms and conditions in Seller’s offers or counteroffers that are in addition to or that conflict with the PO Terms are expressly objected to and rejected by Buyer unless otherwise assented to in writing by Buyer. If the PO is in response to Seller’s offer, the PO shall be deemed an acceptance of such offer expressly limited to the PO Terms and only on the condition of Seller’s assent to the additional or different terms contained therein. Seller’s assent to the additional or different terms contained therein shall be granted by: (i) executing and returning to the Buyer the PO, an acknowledgement form, or another written communication (e.g., email); (ii) starting performance; (iii) delivering any Goods and/or performing any Services; or (iv) accepting payment. Upon acceptance, the terms and conditions governing the agreement between the parties are expressly limited to the PO Terms including but not limited to these Skydio Purchase Order Terms and Conditions incorporated therein.
- PRICE. Seller shall furnish the Goods and/or Services covered by the PO in accordance with the prices stated on the face of the PO or otherwise provided to Seller by Buyer in writing. Unless otherwise expressly specified in writing, the prices stated in the PO are firm fixed prices and are stated in U.S. dollars. All prices include applicable taxes and duties. Seller warrants that such prices do not exceed those charged by Seller to any other customers purchasing on substantially similar terms. Seller waives any lien rights relating to the performance of the PO and Seller shall obtain waivers from all persons entitled to assert any lien rights in connection with the PO and shall furnish such waivers to Buyer at Buyer’s request.
- DELIVERY. Seller shall furnish the Goods and/or Services covered by the PO in accordance with the delivery schedule stated on the face of the PO or otherwise agreed to in writing by Buyer. Unless otherwise agreed to in writing by Buyer, Seller shall not make material commitments or production arrangements in excess of the amount or in advance of the time reasonably required to meet Buyer’s delivery schedule. Goods and/or Services delivered to Buyer more than ten (10) days in advance of the delivery date specified in the delivery schedule of the PO for such Goods and/or Services may be returned or stored by Buyer at Seller’s expense. Goods and/or Services delivered to Buyer after the delivery date specified in the delivery schedule of the PO for such Goods and/or Services may be rejected and returned, and the PO considered in material breach and terminated for default by Buyer in accordance with Section 17 or Buyer may retain the Goods and/or Services at a reduced price, which shall be at the sole discretion of Buyer. Any expense, costs or damages incurred by Buyer as a result of or arising out of the default may, at the sole discretion of Buyer, be offset against any sum owing under this or any other PO between Buyer and Seller or charged back to Seller. Nothing herein shall limit any other remedy Buyer may have at law or in equity. Delivery of Goods and/or Services shall be F.O.B. Supplier’s location as stated on the face of the PO or otherwise agreed to in writing by Buyer. Title and risk of loss or damage to Goods and/or Services furnished under the PO shall pass to Buyer upon formal acceptance of the Goods and/or Services, regardless of when or where Buyer takes physical possession, as stated on the face of the PO or otherwise agreed to in writing by Buyer. Seller shall follow all instructions of Buyer and cooperate with Buyer’s customs broker as directed by Buyer (including by providing requested shipping documentation) with respect to all Goods and/or Services that originate from sources or suppliers based outside the United States of America.
- NOTICE OF DELAYS. Whenever Seller has knowledge of an actual or potential delay to the timely performance of the PO, Seller shall immediately notify Buyer in writing of all relevant information with respect to such delay. Such notice is for informational purposes only and shall not relieve Seller of Seller’s obligation to comply with Seller’s delivery requirements including but not limited to the delivery schedule stated on the face of the PO or otherwise agreed to in writing by Buyer.
- PACKAGING AND SHIPPING. Seller shall package, mark, and otherwise prepare Goods shipped under the PO in strict conformance with all requirements stated on the face of the PO or as otherwise agreed to in writing by Buyer and, if no requirements are stated on the face of the PO or otherwise agreed to in writing by Buyer, in accordance with good commercial practices and with all applicable laws to obtain the lowest shipping rates and to prevent damage during shipping. Unless stated on the face of the PO or otherwise agreed to in writing by Buyer, no separate charge shall be allowed for freight, transportation, insurance, shipping, storage, handling, demurrage, cartage, packaging, containers, boxing, bundling, dunnage, drayage, or any other similar charges. Seller shall pay all insurance and freight costs until delivery to Buyer. On containers, Seller shall mark handling and loading instructions, shipping information, PO number, item and account number, shipment date, and names and addresses of Buyer and Seller. Each shipment of Goods shall also include a separate packing list in a waterproof envelope or wrapper.
- BUYER PROPERTY. If Buyer furnishes Seller materials, specifications, drawings, tooling or equipment (“Buyer Property”), or pays for such Buyer Property as a line item in the PO, title thereto shall remain or immediately vest in Buyer. Title to Buyer Property shall not be affected by the incorporation or attachment thereof to any other property, nor shall such Buyer Property or any part thereof be or become a fixture or lose its identity as Buyer Property by reason of affixation to any realty. Seller shall identify, maintain and preserve such Buyer Property and shall dispose of it (including scrap) only in accordance with Buyer’s written instructions. Such Buyer Property, and whenever practical each individual item thereof, shall be plainly labeled, marked or otherwise adequately identified by Seller as Buyer Property and shall be safely stored separate and apart from Seller’s property. Seller shall not substitute any property for Buyer Property. Unless otherwise stated on the face of the PO, all Buyer Property provided shall be provided “AS IS” and Buyer hereby DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED. Buyer Property furnished to the Seller shall be used by the Seller only for the performance of the PO. Buyer shall have access at all reasonable times to the premises on which Buyer Property is located for the purpose of inspecting Buyer Property or retrieving Buyer Property when deemed necessary by Buyer. Buyer periodically may request Seller to submit, in acceptable form, inventory schedules covering all items of Buyer Property pertaining to the PO. Buyer Property, while in Seller’s custody or control, shall be held at Seller’s risk and Seller shall be responsible for any loss, damage or destruction thereof except for reasonable wear and tear, and except to the extent that such Buyer Property is reasonably consumed in the performance of the PO.
- INVOICING. Seller shall issue a separate invoice for each delivery of Goods and/or Services under the PO and shall not issue any invoice prior to the delivery date stated in the PO or the actual delivery date of the Goods and/or Services. Each invoice shall accurately describe in the English language all of the merchandise contained in the shipment, and shall list all payments, whether direct or indirect, to be made for the merchandise, including but not limited to assists, selling commissions and royalty payments. Each invoice, including item numbers, shall be submitted in duplicate and accompanied (if applicable) by a bill of lading or express receipt. Seller shall submit invoices to the Buyer’s mailing and/or email address stated on the face of the PO or otherwise agreed to in writing by Buyer. Unless otherwise stated on the face of the PO, the terms of payment shall be Net sixty (60) days from Buyer’s receipt of a proper invoice or receipt of the Goods and/or Services, whichever is later. Buyer’s payment of an invoice shall not constitute acceptance of the Goods and/or Services and shall be subject to appropriate adjustment for Seller’s failure to meet the requirements of the PO. Seller shall promptly repay to Buyer any amounts paid in excess of amounts due to Seller. Buyer may offset any amount owed by Seller or its Affiliates against any amount owed by Buyer to Seller under the PO.
- INSPECTION. All Goods and/or Services furnished by the Seller shall be subject to a right of inspection and/or testing by Buyer, its customers, contractors, and (in the case of Goods and/or Services purchased for a U.S. Government contract or subcontract) the U.S. Government at all reasonable times and places, including but not limited to the facilities of the Seller or its Affiliates. If such inspection or testing is made on Seller’s premises, Seller shall provide, without additional charge, all reasonable facilities and assistance for such inspections and tests. No inspection (including source inspection), test, approval (including design approval), or acceptance of the Goods and/or Services shall relieve Seller from responsibility for any defects in the Goods and/or Services or other failure to meet the requirements of the PO, or for latent defects, fraud, such gross mistakes that amount to fraud, or Seller’s warranty obligations. Final inspection and acceptance by Buyer shall be at destination unless otherwise stated on the face of the PO or otherwise agreed to in writing by the Buyer. By default, Buyer shall have sixty (60) days following the receipt of the Goods and/or Services to undertake such final inspection and either accept or reject the Goods and/or Services. Transfer of title to Buyer of Goods shall not constitute Buyer’s acceptance of those Goods. Buyer shall have the right to reject any Goods and/or Services that are (a) delivered in excess of the quantity ordered; (b) are damaged; (c) are defective; (d) are not in strict conformance with specifications provided to Seller by Buyer; (e) are not in strict conformance with the requirements of the PO; or (f) are not in strict conformance with the requirements of another written communication (e.g., email) sent to the Seller by the Buyer. Such final inspection shall be in accordance with the customary established inspection procedures of the location of Buyer where the Goods and/or Services are received. If the Buyer rejects any of the Goods and/or Services, Buyer shall have the right to either (a) return the rejected Goods to Seller at Seller’s expense and risk of loss for, either (i) full credit or refund of all amounts paid by Buyer to Seller for the rejected Goods, or (ii) replacement Goods to be received within the time period specified by Buyer; (b) require its correction (at Seller’s cost including transportation); or (c) accept it with an equitable adjustment in price or such other condition. Title to rejected Goods that are returned to Seller shall transfer to Seller upon such delivery and such Goods shall not be replaced by Seller except upon written instructions from Buyer. Seller shall not deliver Goods that were previously rejected unless delivery of such Goods is approved in writing and in advance by Buyer. Buyer’s acceptance of nonconforming Goods and/or Services shall not relieve Seller of its other obligations including but not limited to warranty or indemnification.
- QUALITY CONTROL. Unless otherwise stated on the face of the PO or otherwise agreed to in writing by the Buyer, Seller shall provide and maintain a quality control system to an industry-recognized and commercially reasonable quality standard for the Goods and/or Services covered by the PO. Seller shall keep complete records of all quality control inspection work and make such records available to Buyer and its customers during the performance of the PO and up to six (6) years after final payment. Seller’s quality control, inspection system and manufacturing processes are subject to review by Buyer during reasonable business hours.
- REPRESENTATIONS, WARRANTIES AND GUARANTEES.By acceptance of the PO, Seller warrants that all Goods and/or Services (including materials incorporated into the Goods): (a) shall be new, suitable for the uses intended for a minimum period of twelve (12) months (or, if otherwise agreed to in writing by the Buyer, for another commercially reasonable time period) after the date of acceptance, of the grade and quality specified and free from all defects in design, materials and workmanship; (b) shall strictly conform to all requirements of the PO, any written communications (e.g., email) sent to Seller by the Buyer, any specifications, drawings and samples furnished or any warranties provided, express or implied; (c) shall be adequately and safely packaged and labeled; (d) shall not infringe any patent, trademark, trade secret or copyright, or any other intellectual property, contract or other third party right; (e) shall be of good and merchantable title, free of liens and encumbrances; (f) are not in violation of any laws, ordinances, statutes, rules or regulations of the United States, any state or local government or any subdivision or agency thereof, or any originating country; (g) comply with any country of origin requirements stated on the face of the PO or previous certification by Seller; (h) do not contain gold or the underlying metal ores for tin, tungsten or tantalum originating from the Democratic Republic of Congo or adjoining countries; (i) are free from California Proposition 65-listed chemicals and Chemicals of Concern unless communicated in writing to Buyer; and (j) are manufactured in compliance with the laws regarding human trafficking and slavery in the country or countries in which they are made. The foregoing warranties are in addition to all other warranties, expressed or implied, and shall survive delivery, inspection, acceptance and payment by Buyer. If Goods and/or Services delivered under the PO are resold to any customer or are to be incorporated into any end item to be delivered to customers, then customers are third party beneficiaries of Seller’s warranties under this clause. If the Goods and/or Services are found not to meet the representations, warranties and guarantees specified, Buyer may, within its sole discretion, return such Goods and/or Services to Seller at Seller’s expense, for correction, replacement, reperformance or credit plus transportation charges. Any Goods and/or Services corrected, replaced, or reperformed shall be subject to the provisions of this clause to the same extent as the Goods and/or Services initially furnished. The rights granted to Buyer under this clause are in addition to any rights or remedies provided elsewhere in the PO or in law or equity and shall not be deemed to be exclusive.
- INTELLECTUAL PROPERTY. All ideas, information, data, documents, drawings, hardware, firmware, software, software documentation, designs, specifications, and processes produced by or for Seller, either alone or with others, in the course of or as a result of any work performed by or for Seller which is covered by the PO shall be the exclusive property of Buyer and shall be delivered to Buyer promptly upon request. All inventions conceived, developed, or first produced by or for Seller, either alone or with others, in the course of or as a result of any work performed by or for Seller which is covered by the PO, and any patents based on any such inventions (both domestic and foreign), shall be the exclusive property of Buyer. Seller shall promptly disclose all such inventions to Buyer in written detail, and execute all papers, cooperate with Buyer, and perform all acts necessary or appropriate in connection with the filing, prosecution, maintenance, or assignment of related patents or patent applications to Buyer. All works of authorship including but not limited to documents, drawings, software, software documentation, photographs, video tapes, sound recordings, and images, created by or for Seller, either alone or with others, in the course of or as a result of any work performed by or for Seller which is covered by the PO, together with all copyrights subsisting therein, shall be the sole property of Buyer. To the extent permitted under United States copyright law, all such works shall be works made for hire, with the copyrights therein vesting in Buyer. The copyrights of all other such works, including all of the exclusive rights therein, shall be promptly transferred and formally assigned free of charge to Buyer. To the extent that any Goods contain any intellectual property of Seller, Seller hereby grants to Buyer a worldwide, royalty-free, non-exclusive, perpetual license to use, copy, modify and distribute such intellectual property as part of the Goods. Seller agrees to provide to Buyer all assistance reasonably requested by Buyer to perfect the rights described herein, including obtaining all assignments and waivers of moral rights necessary or appropriate to vest the entire right, title and interest in such materials in Buyer and its successors and assigns.
- INDEMNIFICATION. Seller shall protect, defend, hold harmless and indemnify Buyer, its officers, directors, employees, parent(s), Affiliates, agents, representatives, dealers, distributors and customers from and against any and all fines, penalties, lawsuits, claims, actions, liabilities, judgments, losses, damages, cost and expenses (including reasonable attorney fees and costs) arising out of, resulting from, or related to: (a) any breach of any of Seller’s warranties, representations and guarantees under Section 11; (b) any breach of any other term of the PO Terms; (c) any product liability claims relating to the Goods and/or Services; (d) any death, bodily injury, personal injury, property damage, or loss or damage to real or tangible personal property resulting from the use of or any actual or alleged defect in the Goods and/or Services provided by or performed by Seller or Seller’s employees or agents, whether such Goods and/or Services were provided or performed on the premises of Seller or Buyer or elsewhere; (e) any alleged or actual infringement of any third party intellectual property rights, including but not limited to patents, copyrights, mask works, trademarks and trade secrets, under the laws of any country by reason of the sale, manufacture, export or use of the Goods and/or Services in the business or operations of Buyer or any of Buyer’s customers; (f) any intention, wrongful or negligent act or omission of Seller or any of its Affiliates or subcontractors; or (g) any liens or encumbrances relating to any Goods and/or Services.
- CONFIDENTIAL OR PROPRIETARY INFORMATION. All information obtained by Seller from Buyer related to the performance, acceptance or existence of the PO shall be received in strict confidence and shall remain the sole property of Buyer (“Proprietary Information”). Seller shall: (a) protect such Proprietary Information from disclosure to third parties with the same degree of care it exercises in protecting its own proprietary information, which shall not be less than reasonable care; and (b) use, copy and disclose such Proprietary Information only to the extent necessary for performance of the PO. If a non-disclosure agreement with the Buyer has been executed by the Seller, the terms and conditions of that non-disclosure agreement are also applicable to all information obtained by Seller from Buyer.
- CHANGES. Buyer may at any time, by written change to the PO, suspend performance of the PO in whole or in part, make changes to the drawings, designs, specifications, method of shipment or packing applicable to the PO, reschedule the time or place of delivery of the Goods and/or Services, and/or require additional or diminished Goods and/or Services. Seller shall immediately perform the PO as changed. If any such change causes an increase or decrease in the cost of, or time required for performance of the PO, an equitable adjustment shall be made in the PO price or delivery dates, or both, if agreed to in writing by Buyer. Seller must assert its right to an adjustment under the clause within ten (10) days from the date of Seller’s receipt of the written change to the PO. No change to the PO will be binding on Buyer unless issued in writing and signed by authorized representatives of both parties.
- TERMINATION FOR CONVENIENCE. Buyer may terminate the PO for its convenience in whole or in part at any time by written notice to Seller. Immediately on receipt of such notice, Seller shall, and shall cause its suppliers and subcontractors to, cease work as specified in Buyer’s written notice, place no further subcontracts or orders except as necessary to complete the non-terminated portion of the PO, and comply with instructions in Buyer’s written notice and any subsequent written notices. Buyer shall (a) reimburse Seller for Seller’s actual and reasonable costs incurred up to the date of termination including for raw materials, other than those costs which supplier reasonably could have avoided, and (b) pay Seller a reasonable profit on the work performed prior to such termination, not to exceed the aggregate price to be paid for the remaining Goods and/or Services. In no instance shall Buyer be obligated to pay Seller for Seller’s anticipatory profits or unabsorbed overhead on those portions of the PO that are terminated. Nothing in the clause shall excuse Seller from proceeding with the non-terminated portion of the PO.
- TERMINATION FOR DEFAULT. Buyer may terminate the PO for default in whole or in part by written notice to Seller due to: (a) Seller’s breach of, or failure to strictly comply with, any of the PO Terms; (b) Seller’s failure to make progress so as to endanger performance of the PO; or (c) Seller filing a petition of any type as to its bankruptcy, being declared bankrupt, becoming insolvent, making an assignment for the benefit of creditors or going into liquidation or receivership. Buyer’s right to terminate the PO for default may be exercised if Seller does not cure its breach or failure within ten (10) days after receipt of notice from Buyer specifying the failure. Seller shall continue the work not terminated. On such termination for default, Buyer shall not be liable to Seller for any amount owed for the terminated portion of the PO. Seller shall be liable to Buyer for all damages, costs and expenses sustained due to the default plus any re-procurement charges, except Seller shall not be liable to Buyer for re-procurement charges if the cause of default is wholly beyond the control of and without the fault of Seller such as caused by acts of God, pandemics, war or terrorism.
- LIMITATION OF LIABILITY. Buyer shall not be liable for any punitive, special, incidental or consequential damages of any kind (including but not limited to loss of profits, business revenues, and business interruption) under or arising out of the PO or its termination or cancellation, without regard to whether the claim under which such damages are sought is based upon breach of warranty, breach of contract, negligence, tort, strict liability, statute, regulation or any other legal theory or law. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BUYER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO A PO EXCEED THE TOTAL AMOUNT ACTUALLY PAID OR PAYABLE BY BUYER TO SELLER FOR THE APPLICABLE GOODS AND/OR SERVICES PROVIDED UNDER THE PO NOR WILL BUYER OR ITS AFFILIATES OR ITS RELATED LEGAL ENTITIES BE LIABLE FOR ANY LOST REVENUES, LOST PROFITS, INCIDENTAL, DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF.
- EXPORT COMPLIANCE. Seller represents and warrants that it shall comply with all U.S. export and import laws and regulations relating to the performance of the PO and any originating country’s export and import regulations. Further, by acceptance of the PO, Seller certifies that they are and will remain registered in accordance with the U.S. Department of State as required by the International Traffic in Arms Regulations (“ITAR”) (22 C.F.R. Parts 120-130), if required. Any controlled commodities, technical data or services provided by Buyer to Seller in connection with the PO, as well as any controlled commodities, technical data or services developed or produced therefrom by Seller may be subject to the requirements of the ITAR or the Export Administration Regulations (“EAR”), 15 C.F.R. Part 730, et seq. Seller represents and warrants that none of the controlled documents, information or goods provided by Buyer will be exported, transferred or disclosed outside of the United States or to any foreign person as defined under the ITAR and the EAR, unless prior written permission has been obtained from Buyer’s representative and any necessary United States Government export license or other authorization has been obtained. Seller represents and warrants that it is not listed on any Excluded or Denied Party List of any agency of the US Government and shall immediately notify Buyer should this fact change. Seller shall indemnify and hold Buyer harmless for all claims, demands, damages, costs, fines, penalties, attorneys’ fees, and all other expenses arising from Seller’s failure to comply with the clause.
- SELLER’S COMPLIANCE WITH APPLICABLE LAWS. Seller warrants and certifies it has complied with all applicable federal, state and local laws, statutes, ordinances, rules, regulations, programs, plans and orders (“Laws”) in its performance of the PO and that all Goods and/or Services delivered hereunder comply with all applicable Laws. Without limiting the foregoing, Seller warrants where applicable that it is in compliance with all federal, state and local laws pertaining to the Goods and/or Services. Seller also warrants that it will accurately label products consistent with the requirements of 40 CFR Part 82 “Protection of Stratospheric Ozone; Labeling,” as applicable. Seller further warrants and certifies that all Goods and/or Services supplied and the manufacture of the Goods or the performance of the Services are in compliance with all local, state, federal and originating country’s environmental, health, safety, and occupational Laws, including but not limited to all applicable federal, state, local and originating country’s labor and employment laws, regulations and executive orders including, in the US, Form 1-9 requirements and use of E-Verify where applicable. Seller shall pay all wages due its employees and all related employment taxes, worker’s compensation and unemployment insurance amounts. Seller agrees, at its expense, to repair, modify, replace, or re-perform any Goods and/or Services not in compliance with any Laws. Seller acknowledges that Buyer is an equal opportunity and affirmative action employer and agrees that Seller will assign personnel without regard to race, color, creed, religion, sex, national origin, disability, age, status as a covered veteran, or any other legally protected characteristic. Seller and its subcontractors may be subject to the provisions of 41 C.F.R. §§ 60-1.40, 60-250.4 and 60-741.4 with respect to affirmative action requirements. Seller will defend and hold Buyer harmless for any loss, damages, or costs arising from or caused in any way by any actual or alleged violation of any Laws including any federal, state, or local law, statute, ordinance, rule, regulation, program, plan or order in Seller’s performance of the PO.
- ASSIGNMENT AND SUBCONTRACTING. Seller shall not assign the PO or any rights or obligations under the PO without the prior written consent of Buyer. Any prohibited assignment under the PO shall be immediately null and void. None of the Goods and/or Services subject to the PO shall be acquired by Seller from a subcontractor or other third party in completed or substantially completed form without the prior written consent of Buyer.
- CONTROLLING LAW AND FORUM.Irrespective of the place of performance, the PO and all disputes arising hereunder or relating hereto shall be governed by and construed in accordance with the laws of California without regard for that state’s conflicts of law provisions. The parties expressly reject the application of the United Nations Convention of Contracts for the International Sale of Goods to the PO. Any action at law, suit in equity, or judicial proceeding of any kind arising directly, indirectly, otherwise in connection with, out of, related to or from the PO or the relationship between the parties shall be litigated only in the state or federal courts located in California and the parties waive any right they may have to challenge the jurisdiction of the court or seek to bring any action in any other forum, whether originally or by transfer, removal, or change of venue. Buyer and Seller shall make every effort to avoid litigation through reasonable and diligent negotiations. In the event that litigation is pursued, the prevailing party shall be entitled to recover its reasonable costs and expenses relating thereto including without limitation its reasonable attorney’s fees and costs.
- WAIVERS/APPROVALS. No waiver, alteration, or modification of any of the provisions of the PO shall be binding on Buyer unless evidenced by a written amendment signed by an authorized representative of Buyer. Buyer’s failure or delay to insist on performance of any of the terms and conditions herein or Buyer’s failure or delay in the exercise of any right or privilege or Buyer’s waiver of any breach hereunder shall not thereafter waive any other terms, conditions, rights, privileges, or breaches whether they are of the same or similar type.
- RELEASE OF INFORMATION AND USE OF NAME. Seller shall not make or authorize any news release, advertisement, or other disclosure which shall confirm or deny the existence of the business relationship between the parties, the Goods and/or Services, or the PO without the prior written approval of Buyer, except as may be required to perform the PO. Seller shall not refer to Buyer, its subsidiaries, parent or Affiliates in publication form without the prior written approval of Buyer. Seller shall not use, or allow to be used, Buyer’s name, logo, trademarks, or other intellectual property without the prior written approval of Buyer.
- SOCIAL RESPONSIBILITY. Seller agrees to comply with the Responsible Business Alliance (“RBA”) Code of Conduct (the “RBA Code”), which may be found at www.responsiblebusiness.org/standards/code-of- conduct/. Upon request, Seller shall submit proof of compliance to the RBA Code requirement through submission of a Self-Assessment Questionnaire administered by either a third party affiliated with the RBA organization or Buyer.
- ENVIRONMENTAL COMPLIANCE. Seller warrants to Buyer and its distribution partners that the Goods comply with all applicable hazardous substance content regulations including, but not limited to: (a) the restriction of the use of certain hazardous substances in electrical and electronics equipment, Directive 2002/95/EC; (b) the Waste Electrical and Electronic Equipment Directive(2012/19/EU); (c) the Packaging Waste Directive (94/62/EC); and (d) the Batteries Directive (2006/66/EC), all as amended and all related national implementing measures in force from time to time. Seller shall deliver a certificate of compliance for such regulations prior to shipping any Goods, and Seller may be required, at Buyer’s discretion, to deliver a certificate of compliance with each shipment of Goods. If requested by Buyer, Seller agrees to provide evidence of compliance, which may include, but is not limited to, test results, test verification and lab reports. Such evidence shall be retained by Seller to be made available to Buyer on request, for a minimum of four (4) years from date of test.
- HAZARDOUS MATERIALS. Prior to shipment of any hazardous material or chemical (as determined by OSHA regulation at 29 CFR §1910.1200(d) or Federal Standard No. 313) onto Buyer’s premises, Seller shall provide to Buyer one copy of OSHA Form 20 or 174, Safety Data Sheet or equivalent, for each such material or chemical. The form shall include the stock number or the material specification number as defined in the PO and all of the information required by 29 CFR § 1910.1200(g). The packaging, labeling, marking, handling, and shipping of all hazardous items must conform to all current federal, state, and local laws and regulations, including carrier regulations. In addition to the application of the proper shipping labels on the outside container, each individual container of hazardous items shall be marked with the appropriate precautionary label according to the Code of Federal Regulations and any applicable state or international regulation. Any failure to comply with the above submission requirement shall be grounds for Buyer withholding payments due to Seller. In accordance with Public Law 102-484, Seller shall not use or allow others to use a Class I ozone-depleting substance in the performance of the PO unless such use is specifically authorized in writing by Buyer. On Buyer’s premises, Seller shall use reasonable efforts to reduce the generation and discharge of hazardous waste. Hazardous waste generated on Buyer’s premises in the performance of the PO will be accepted by Buyer, who will arrange for and pay for disposal, unless otherwise provided for in the PO. The hazardous waste is to be correctly identified and delivered to defined sites during regular business hours. Seller is expressly prohibited from taking any hazardous waste off of Buyer’s premises without specific written direction from Buyer. Nothing contained in the clause shall relieve Seller from complying with applicable federal, state, and local laws, codes, ordinances, and regulations in connection with hazardous material/hazardous waste. Seller agrees to provide, upon and as requested by Buyer, to satisfy any applicable laws governing the use of any hazardous substances either of the following: (a) all reasonably necessary documentation to verify the material composition, on a substance by substance basis, including quantity used of each substance, of any Goods, and/or of any process used to make, assemble, use, maintain or repair any Goods; or (b) all reasonably necessary documentation to verify that any Goods and/or any process used to make, assemble, use, maintain or repair any Goods, do not contain, and the Services do not require the use of, any particular hazardous substances.
- INSURANCE. Seller shall maintain in force at its expense from an insurer acceptable to Buyer comprehensive commercial liability/products liability insurance covering claims for bodily injury and property damage in the amount of no less than $3,000,000 per occurrence unless Buyer provides written notice that such insurance is not necessary. Certain Goods and/or Services may require higher liability limits which shall be communicated to Seller. Buyer shall be endorsed as an additional insured under Seller’s policy and shall provide proof of insurance upon Buyer’s request.
- AUDIT. Buyer has the right, by itself or through a nominated auditor, to audit and review all records of Seller to enable Buyer to: (a) verify the accuracy of the amounts charged for the Goods and/or Services; (b) assess Seller’s ongoing ability to perform its obligations under the PO; or (c) to verify any claim submitted to Buyer in accordance with a PO. Seller agrees to maintain all records relating to Orders for a period of four (4) years following final payment under any PO.
- LIENS. Seller agrees that no liens, security interests, encumbrances or property rights of any kind (“Liens”) shall lie or attach upon or against the Goods, Buyer Property or any part thereof, for or on account of any work performed, provided, or service furnished by Seller pursuant to the PO. If any Liens are asserted against the Goods or Buyer Property, or any part thereof, Buyer shall have the right to discharge the same by filing a bond or security, or in its discretion, by paying the amount of such claim, and in such event, Buyer shall have the right to deduct from the price the amount thus paid. If the total price has been paid, Seller shall repay to Buyer, upon demand, the amount thus paid by Buyer for the purpose of discharging such claim, plus all administrative and legal expenses incurred by Buyer.
- RELATIONSHIP OF PARTIES. Seller will perform its obligations under the PO as an independent contractor and in no way will Seller or its employees be considered employees, agents, partners, fiduciaries, or joint venturers of Buyer. Seller and its employees will have no authority to represent Buyer or its Affiliates or bind Buyer or its Affiliates in any way, and neither Seller nor its employees will hold themselves out as having authority to act for Buyer or its Affiliates.
- INJUNCTIVE RELIEF. To the extent that a PO is for Goods for use as, or fabrication into, parts, components or systems, Seller acknowledges and agrees that money damages would not be sufficient remedy for any actual, anticipatory or threatened breach of the PO by Seller and that, in addition to all other rights and remedies which Buyer may have, Buyer shall be entitled to specific performance and injunctive or other equitable relief.
- GENERAL. All remedies under the PO or PO Terms are cumulative and in addition to any other remedies at law or in equity. The official version of the PO shall be the English language version. Any invalidity, in whole or in part, of any provision of the PO shall not affect the validity of any of its other provisions. The PO and corresponding written communications sent by Buyer to Seller constitute the final, complete and entire agreement between the parties and supersedes all prior or contemporaneous negotiations, discussions, communications, course of dealing, usage of trade, representations, or agreements, written or oral, regarding the subject matter of the PO. If any provision of the PO Terms is determined to be unenforceable or invalid for any reason whatsoever, in whole or in part, such invalidity or unenforceability shall attach only to such provision or part thereof and the remaining part thereof and all other provisions shall continue in full force and effect.
- ADDITIONAL FLOWDOWN CLAUSES. Buyer may use Goods purchased under the PO for fulfillment of a U.S. Government contract. The following clauses of the Federal Acquisition Regulations (FAR) are hereby incorporated by reference as if fully set forth in the PO to the extent applicable, even if the Goods are commercial items. The full text of the FAR clauses can be found at https://acquisition.gov/far/index.html:
CONTRACTOR CODE OF BUSINESS ETHICS AND CONDUCT
WHISTLEBLOWER PROTECTIONS UNDER THE AMERICAN RECOVERY
AND REINVESTMENT ACT OF 2009
UTILIZATION OF SMALL BUSINESS CONCERNS
EQUAL OPPORTUNITY FOR SPECIAL DISABLED VETERANS, VETERANS
OF THE VIETNAM ERA, AND OTHER ELIGIBLE VETERANS
AFFIRMATIVE ACTION FOR WORKERS WITH DISABILITIES
COMBATING TRAFFICKING IN PERSONS
SUBCONTRACTS FOR COMMERCIAL ITEMS
PREFERENCE FOR PRIVATELY-OWNED U.S. FLAG COMMERCIAL