TERMS AND CONDITIONS OF PURCHASE
THESE TERMS AND CONDITIONS OF PURCHASE (“TERMS AND CONDITIONS”) AND THE RELEVANT PURCHASE ORDER ISSUED BY COMPANY (“PURCHASE ORDER”), INCLUDING ANY ADDITIONAL SPECIFICATIONS, REQUIREMENTS, DOCUMENTS, TERMS, AND CONDITIONS ATTACHED TO OR REFERENCED IN THESE TERMS AND CONDITIONS OF PURCHASE OR THE PURCHASE ORDER (COLLECTIVELY, THE “ORDER”) GOVERN THE PURCHASE BY AEVA, INC. (“COMPANY”) FROM SELLER OF GOODS OR SERVICES FURNISHED UNDER THE PURCHASE ORDER (COLLECTIVELY, THE “PRODUCTS”). COMPANY’S ORDER IS EXPRESSLY CONDITIONED ON SELLER’S ACCEPTANCE OF ALL TERMS AND CONDITIONS IN THE ORDER. THE ORDER CONSTITUTES THE SOLE OFFER BY COMPANY TO PURCHASE THE PRODUCTS, AND COMPANY HEREBY OBJECTS TO ANY DIFFERENT OR ADDITIONAL TERMS OR CONDITIONS WHETHER INCLUDED IN SELLER’S ACCEPTANCE OF THE ORDER OR OTHERWISE PRESENTED BY SELLER. THE ORDER MAY ONLY BE MODIFIED BY COMPANY’S ISSUANCE OF AN AMENDED ORDER TO SELLER. SELLER AND COMPANY ARE EACH REFERRED TO AS A “PARTY” AND COLLECTIVELY AS THE “PARTIES.”
1. ORDER ACCEPTANCE
The Order constitutes Company’s offer to Seller and is not binding on Company until accepted by Seller. At Company’s sole election, Seller will supply Products in such quantities as Company specifies in the Order (including releases against blanket purchase orders). No estimates, forecasts or projections of anticipated future quantity requirements for Products constitute binding commitments by Company, but rather are provided for informational purposes only. Seller must accept or reject Orders within fourteen (14) days of issuance by Company. Seller will not unreasonably withhold acceptance of any Order. Seller will be deemed to have accepted the Order if Seller: (a) acknowledges in writing (including through electronic communication) its acceptance of the Order; (b) performs any work or renders any services related to Products to be provided pursuant to the Order after Seller’s receipt of the Purchase Order; or (c) delivers any of the ordered Products. Seller waives any requirement for a signed acceptance of the Order. Each of Seller and Company waive any defense to the enforceability or validity of the Order due to electronic submission of the Order to Seller and Seller’s acceptance of the Order as set forth herein.
2. CHANGES, CANCELLATION, AND RESCHEDULING
Except as otherwise provided in the Order, Company may, by written notice to Seller, and without any liability: (a) change the amounts ordered; (b) cancel a Purchase Order; or (c) reschedule delivery of Products, in each case without restriction up to five (5) days prior to the shipment date.
3. PRICES; TAXES
(a) Prices for Products set forth in the Order are not subject to adjustment, including for changes in volume, price of raw materials or labor, currency valuation or for any other reason, unless a provision is incorporated into the Purchase Order (expressly approved by Company in writing) that expressly provides the circumstances under which prices for Products may be adjusted. Unless otherwise expressly provided in the Order, all prices will be in U.S. dollars, and all charges and costs relating to handling, packaging, storage, and transportation, as well as all transactional taxes, including any sales, use, excise, services, value added tax, goods and services tax, or similar tax, are included in the price of the Products and no additional charges, surcharges or premiums of any type will apply. The acceptance of the Order constitutes a warranty by Seller to Company that the prices charged for Products do not exceed the lowest prices charged by Seller to any other customer for similar quantities Products and under similar delivery requirements.
(b) Credits or benefits resulting or arising from the Order, including trade credits, export credits or the refund of duties, taxes or fees, will belong to Company. Seller will promptly provide to Company all information necessary (including written documentation and electronic transaction records) to permit Company to receive such benefits or credits, as well as to fulfill its import and, where required by the Order, export-related obligations, including those set forth in Section 9 below. Seller will undertake such arrangements as necessary for the Products to be covered by any duty deferral or free trade zone program(s) of the country of import.
4. INVOICES; PAYMENT
Seller will submit invoices electronically to Company’s accounts payable department in the manner specified by Company promptly after delivery of the Product shipment. Invoices will conform to Company’s invoice requirements and include, without limitation, the following information together with any other information required under laws, regulations, rules, orders, conventions, ordinances, and standards applicable to a Party or to one or more Products (“Applicable Law”): Seller’s full corporate name and full address and tax number or value-added tax number, purchase order number, item number, description of item, size of item, quantity of item, unit prices, country of origin of the item, date of invoice, date of delivery or performance, each applicable tax, and any other information specified elsewhere herein. A bill of lading or express receipt must accompany each invoice. Payment of invoice will not constitute acceptance of Products and such payment will be subject to adjustment for errors, shortages, defects in the Products or other failure of Seller to meet the requirements of the Order. Unless the Company expressly agrees otherwise in the Order, payment of correct and undisputed invoices is due within sixty (60) days of Company’s receipt of the invoice and remittance fees will be shared equally. Seller must present any billing or invoice inquiries or disputes within one hundred eighty (180) days of Company’s receipt of the invoice to which the inquiry or dispute pertains. Company may at any time set off any amount owed by Company to Seller against any amount owed by Seller or any of its Affiliates to Company. “Affiliate” of a Party means a corporation, partnership or other entity Controlling, Controlled by or under common Control with such Party, but only so long as such control continues to exist. For purposes of the definition of “Affiliate,” “Control” means ownership, directly or indirectly, of at least fifty percent (50%) of the equity or other interests entitled to vote in the election of directors (or, in the case of a noncorporate entity, the corresponding managing authority); provided that if the percentage allowed under Applicable Law is less than fifty percent (50%), then the maximum percentage allowed under Applicable Law.
(a) Unless otherwise specifically provided in the Purchase Order, the Products will be delivered FCA (Incoterms) named point of destination. Seller will comply with all of Company’s delivery and logistics requirements, as updated from time to time, which requirements are incorporated into the Order by reference. Time is of the essence. Delivery must be made in accordance with the delivery schedule in the Order, or in accordance with Company’s releases or other instructions, and must conform to the quantities ordered. If Seller cannot comply with the foregoing or any other delivery or logistics requirements of the Order for any reason, then, without limiting any other rights or remedies of Company, Seller will immediately notify Company and take all necessary steps, at Seller’s cost and expense, to bring its deliveries into conformity with the Order. Seller will reimburse Company for all losses, costs, expenses and damages incurred by Company that arise out of Seller’s noncompliance with the Order delivery and logistics requirements, including all losses, costs, expenses and damages owed by Company to third parties (including end customers of the products into which the Products are incorporated or Company’s customers) as a result of such noncompliance. “Customers” means, collectively and individually, end customers of the Products or the products into which the Products are incorporated and Company customers.
(b) Seller will conduct all supply chain communications using the method(s) specified by Company. Company may change the rate of scheduled shipments, the quantity of shipments or direct temporary suspension of scheduled shipments by notifying Seller of such change. Company will pay only for maximum quantities ordered. Company will hold any overshipment of Products at Seller’s risk and expense for a reasonable time awaiting shipping instructions to return the excess Products. Return shipping charges for excess Products will be at Seller’s expense. Title to the Products will transfer to Company free and clear of any liens, claims, encumbrances, interests or other rights at the moment the risk of loss transfers from Seller to Company with respect to the Products in accordance with the Incoterm or alternative delivery term set forth in Section 5(a) above, unless otherwise expressly provided for in the Purchase Order.
6. PACKING AND SHIPMENT
Unless otherwise specified by Company, Seller will package and pack all Products in a manner that is: (i) in accordance with good commercial practice for Products of the type supplied; (ii) acceptable to common carriers for shipment at the lowest rate for the particular Products; (iii) in accordance with I.C.C. regulations and Applicable Law; and (iv) adequate to ensure safe arrival of the Products at the named destination. Seller will mark all containers with necessary lifting, handling, and shipping information and with purchase order numbers, date of shipment, and any other markings specified by Company. An itemized packing list must accompany each shipment. No partial or complete delivery will be made prior to the due date or dates shown unless Company has given prior written consent.
7. WARRANTIES; EPIDEMIC FAILURE
(a) Seller and Company each represents and warrants that: (i) it has and will have the full power and authority, and has obtained and will obtained all necessary approvals, consents, and authorizations, to enter into the Order and to perform its obligations under the Order; (b) the person accepting the Order on its behalf has the express authority to do so; and (c) any services furnished hereunder will be performed in a professional and competent manner.
(b) Seller warrants that all Products will: (i) be brand-new, intact and genuine products; (ii) be free from defects in workmanship, material, and manufacture; (iii) be of merchantable quality and fit for the purposes intended by Company to the extent disclosed to Seller; (iv) comply with the requirements of the Order, including all specifications, drawings, samples, descriptions and quality standards referenced in the Order; (v) when design is Seller’s responsibility, be free from defects in design; and (vi) be (and with respect to Products comprised of services, will be performed) in compliance with all Applicable Law. Without limiting the foregoing, Products comprised of services will be performed in a professional and workmanlike manner. Unless otherwise set forth in the Order, the duration of the warranty provided by Seller to Company for the Products will begin on the date of delivery of the Products and end on the later of (a) the date of expiration of any warranty period provided under Applicable Law for the Products, (b) expiration of any warranty applicable to the Products provided by Company to Customers, or (c) the expiration of any specific warranty period or performance standard provided in any document incorporated by reference into the Order, including in Company’s specifications or quality standards. The foregoing warranties constitute conditions to the Order, are in addition to all other warranties whether express or implied, and will survive any delivery, inspection, acceptance or payment by Company. All warranties run to the benefit of Company and its resellers and Customers. Company’s approval of Seller’s materials or design will not relieve Seller of any warranties.
(c) If any Products do not meet the warranties specified herein or that are otherwise applicable under Applicable Law, Company may, at its option and at Seller’s cost and expense: (i) require Seller to correct any defective or nonconforming Products by repair or replacement; (ii) return such defective or nonconforming Products to Seller and recover from Seller the purchase price therefor; or (iii) correct or replace the defective or nonconforming Products and charge Seller with the cost of such correction or replacement. In addition, if any Products do not meet the warranties specified herein or otherwise applicable, if any Products are defective or nonconforming, or if Seller otherwise breaches any of its obligations under the Order with respect to the Products, Company will be entitled to recover from Seller all losses, costs, expenses and damages incurred by Company, including all direct, indirect, incidental and consequential damages and all legal and other professional fees and costs, as a result of such failure, defect, nonconformance, or breach, including, without limitation, costs, expenses, and losses incurred by Company: (A) in inspecting, sorting, or testing the defective or nonconforming Products; (B) resulting from production interruptions; (C) in conducting recall campaigns or other corrective service actions; or (D) resulting from personal injury, including death, or property damage caused by the Products. If requested by Company, Seller will enter into a separate agreement for the administration and processing of warranty chargebacks for nonconforming goods. Seller will assist Company in determining the root cause of any defect or nonconformance with respect to a Product.
(d) If Products in a shipment or series of shipments are repeatedly defective or nonconforming, Company may assert its warranty rights and remedies under the Order or under Applicable Law in respect of the entirety of such shipment or series of shipments.
8. REPLACEMENT PARTS
During the 15-year period after the last date that Customers end the purchasing programs for which the Products are supplied, as such dates are communicated by Company to Seller, Seller will supply Company’s replacement and spare parts requirements at (a) the prices set forth in the Order for the first 5 years of this period, and (b) for the remainder of this period, at prices negotiated by the parties in good faith, based on circumstances such as demand, volume, and packaging and logistics costs. If the Products are systems or modules, Seller will sell the parts for that system or module at prices that will not, taken together, exceed the price of the system or module, less assembly costs.
9. CUSTOMS; EXPORTS
(a) Seller will promptly identify in writing for Company all material and components used by Seller in filling the Order that Seller purchases in a country other than the country in which the Products are delivered. Seller will furnish Company with any documentation and information necessary to establish the country of origin and comply with the destination country’s rules of origin requirements, any special trade programs, and content reporting. Seller will provide Company with all documentation and information required by Applicable Law or otherwise necessary to determine admissibility, timely release, customs clearance and entry, and the proper minimum duty to be paid upon the importation of the Products into the destination country. Seller will advise Company if the importation of the Products requires an import license and will assist Company in obtaining any such license. Seller warrants that the information regarding the import or export of the Products supplied to Company is true and correct, and that all sales covered by the Order will be made at not less than fair value under the anti-dumping laws of the countries to which the goods are exported. Seller will supply the Products in accordance with the recommendations and requirements of the international security programs (e.g. CTPAT/AEO/KC Air Cargo Security) specified by Company (“Security Programs”). Seller will ensure that: (i) the Products are manufactured, stored, treated or processed and loaded on business premises and at transshipment sites secured in accordance with the Security Programs; (ii) the Products are protected against unauthorized access during manufacture, storage, treatment or processing, loading and shipment in accordance with the Security Programs; (iii) the personnel responsible for manufacturing, storing, treating or processing, loading, shipping and taking over the Products are reliable; and (iv) persons and entities who act on behalf of Seller have been informed that they must take measures to secure the aforesaid supply chain in accordance with the Security Programs.
(b) Seller and Company recognize that export control regulations may limit or prohibit the transfer of items to foreign nationals, including foreign nationals in the United States. The Products and/or technical data (collectively, “Items”) delivered under the Order may be subject to U.S., foreign and other applicable export control laws and regulations (collectively “Export Control Laws”), including, but not limited to, the International Traffic in Arms Regulations or the Export Administration Regulations. Seller will comply with all U.S. and other countries’ applicable Export Control Laws and will not export, re-export or transfer Items without first obtaining all required licenses and approvals. Compliance with Applicable Law includes, but is not limited to, abiding by U.S. sanctions, embargoes and prohibitions on transactions with restricted parties. This includes, but is not limited to, the prohibition on the transfer of commodities, materials, software and technology subject to the Order, to U.S. sanctioned countries (e.g., Iran, Syria, North Korea, Sudan, and Cuba). Seller will promptly reimburse Company for all losses, costs, expenses and damages, including all penalties and fines incurred by Company as a result of violation(s) of U.S. or foreign export control laws and regulations, or this Section 9(b), by Seller.
Seller will not subcontract any of its obligations under the Order without Company’s prior written consent. Such consent will not release Seller from, or limit, any of Seller’s obligations under the Order. Seller warrants that any such subcontractor’s performance will satisfy all requirements applicable to Seller under the Order.
11. INSPECTION; QUALITY; RISK MANAGEMENT
(a) Notwithstanding any prior inspection or payments and without limiting Company’s auditing or other rights otherwise set forth in the Order, in Company’s sole discretion Company may inspect, evaluate and test all Products (including tooling, fixtures, equipment and material used directly or indirectly in manufacture of the Products) at locations specified by Company within a reasonable time after delivery. Company’s acceptance or inspection does not relieve Seller of any of its obligations under the Order. Nothing in the Order releases Seller from the obligation of testing, inspection and quality control.
(b) If any Product is found to be defective in material or workmanship, does not conform to Company’s specifications, or otherwise does not conform to the warranties set forth in Section 7 or to the acceptance criteria and test procedure as established by the Company and agreed to by Seller (such agreement not to be unreasonably withheld) from time to time (“Acceptance Criteria”), Company may reject such Product. Rejected Products will be replaced with conforming Products within ten (10) days after Company’s notice of rejection. If such replacement does not resolve the defect or non-conformity, Company will, at its option, (i) afford Seller one or more extensions of time to correct the defects or non-conformities for a period specified by Company; or (ii) terminate the applicable Purchase Order and be entitled to a prompt and full refund of all amounts previously paid for such Product.
(c) Seller will: (i) maintain an inspection and quality system acceptable to Company and in conformity with all drawings, specifications and data that are referred to or incorporated into the Order, and in accordance with any applicable international automotive quality standards; and (ii) comply with all other quality requirements stipulated by Company and Customers, as such requirements may be updated from time to time. Seller will: (A) maintain adequate authenticated inspection and test reports, affidavits, and certifications relating to the work performed under the Order; (B) retain such records for a period of fifteen (15) years after completion of the Order or as otherwise required under Applicable Law; and (C) make such records available to Company upon request. Seller will provide to Company, free of charge, product documentation to comply with all requirements relating to quality, Specifications, safe use, and storage conditions of the Products, as reasonably requested by Company, including without limitation relevant inspection reports and certificates of quality.
(d) Seller warrants that the quality of the Products, reliability of the Products, and delivery capability of Seller will be competitive with those of Seller’s competitors. If Seller demonstrates a lack of competitiveness with its competitors, Company may notify Seller and provide a reasonable period for Seller to increase its competitiveness, and if Seller fails to do so, Company may terminate the Order upon written notice to Seller without liability.
(e) Seller commits itself to conduct a systematic risk management process in accordance with Company and Customers’ requirements. Without limiting the foregoing, Seller will implement all changes, additions, or other adjustments to its risk management process upon Company’s reasonable request. Seller commits itself to carry out this process exercising due care, containing all required preventive actions to avoid the aforementioned risks to Company. The process must also include the Seller’s sub-suppliers. At Company’s request, Seller will provide Company with insight into Seller’s risk management process, the applied methods, actions and results and Seller commits itself to support surveys in connection with the risk evaluation and risk safeguarding. Costs in connection with the risk evaluation and risk safeguarding will be borne by the respective Party.
(f) If Company or Customer determines that the root cause of any defects occurring in the products into which the Products are incorporated is attributable to the Products, Company may take precautionary measures to mitigate against any actual or potential losses or damages resulting therefrom, including through recalls or warnings, replacement, remodeling or retrofit, or other product safety measures, serial defect campaigns or other service actions (collectively, “Precautionary Measures”). Seller will reimburse Company for all costs and expenses (including attorneys’ fees) incurred by Company in connection with Precautionary Measures initiated or carried out by Company and Customers.
12. PROPERTY; TOOLING
(a) Unless otherwise agreed in writing by Company, Seller, at its expense, will furnish, keep in good condition, and replace when necessary all machinery, equipment, tools, jigs, dies, gauges, fixtures, molds, patterns and other items (“Seller’s Property”) necessary for the production of the Products. Seller will insure Seller’s Property with coverage for all losses for its replacement value. Seller grants Company an irrevocable right to take possession of and title to Seller’s Property that is used exclusively for the production of the Products upon payment to Seller of its net book value less any amounts that Company has previously paid to Seller for the cost of such items, but less any amounts otherwise owing to Company by Seller; provided, however, that this option will not apply if Seller’s Property is used to produce Products that are the standard stock of Seller or if a substantial quantity of like goods are being sold by Seller to others.
(b) All supplies, materials, prototype and production tools, jigs, dies, gauges, fixtures, molds, patterns, equipment, related software and other items (together with any accessions, appurtenances, modifications, repairs, refurbishments and replacements thereof) furnished by Company, either directly or indirectly, to Seller to perform the Order, or for which Seller has been paid (other than through piece price amortization) by Company (“Company’s Property”), will be and remain the property of Company, and all right, title and interest in Company’s Property will remain with Company, subject only to the limited right of possession granted to Seller under this Section 12(b). Company will, at any time, have the right to immediate possession of Company’s Property, on Company’s demand. Company’s Property will: (ii) be deemed to be personalty; (iv) be conspicuously marked by Seller as the property of Company; (v) not be commingled with the property of Seller or with that of a third person; and (vi) not be moved from Seller’s premises without Company’s prior written approval. To the fullest extent permitted by Applicable Law, Seller waives any liens, claims, encumbrances, interests or other rights that Seller might otherwise have or assert on or with respect to any of Company’s Property for work performed on such property or otherwise. While in the possession or control of Seller, Seller will bear risk of loss, damage, theft, taking, destruction, confiscation or requisition with respect to the Company Property. Upon the earlier of (A) expiration or termination of this Order, or (B) Company’s written request, Seller will promptly return the Company Property to Company in substantially the same form as Seller received the Company Property, at Seller’s expense.
13. AUDIT RIGHTS; INSPECTION OF SELLER’S PREMISES
During the Term and for one (1) year after the expiration or termination of the Order, Seller grants Company or its designee (including Company’s direct and indirect customers) access to Seller’s (and Seller’s subcontractors’ and suppliers’) premises and books and records for the purpose of auditing Seller’s compliance with the terms of the Order (including, without limitation, charges under the Order), auditing Seller’s subcontractors’ compliance with the terms of the Order, or inspecting or conducting an inventory of finished goods, work-in-process, raw materials, any of Company’s Property and all work or other items to be provided pursuant to the Order located at Seller’s premises or Seller’s subcontractors’ premises. Seller will cooperate with Company or its designee so as to facilitate such audit, including, without limitation, by segregating and promptly producing such records as Company may reasonably request, and otherwise making records and other materials accessible to Company or its designee; and by obtaining Seller’s subcontractors’ and suppliers’ consent to the terms of this provision. In addition, Company or its designee has the right to visually inspect and audit any facility or process relating to the goods or services to be provided under the Order, including those relating to production quality, and further including any such Seller’s subcontractor’s or supplier’s facilities or processes relating to the goods or services to be provided under the Order. Seller will preserve all records pertinent to the Order, and Seller’s performance under the Order, for a period of not less than two (2) years after Company’s final payment to Seller under the Order. Any such audit or inspection conducted by Company designees will not constitute acceptance of any Products (whether in progress or finished), relieve Seller of any liability under the Order, or prejudice any rights or remedies available to Company.
14. CHANGE ORDERS
(a) By written notice to Seller, Company may, from time to time, make changes, or direct Seller to make changes, to drawings and specifications of the Products or to otherwise change the scope of the work covered by the Order, including, without limitation, work with respect to such matters as inspection, testing, quality control, or place of delivery. Company and Seller will promptly discuss any pricing adjustments (up or down) to be made in connection with such changes. Notwithstanding any such discussions, upon Company’s written request, Seller will promptly implement such changes as directed by Company. In the event that Company and Seller are unable to reach agreement on any pricing adjustments to be made in connection with such changes, any difference in price or time for performance resulting from such changes will be equitably adjusted by Company based on a fair cost assessment after receipt of documentation in such form and detail as Company may direct. Seller will accept any amendments issued by Company implementing such changes.
(b) Seller will not relocate the production, manufacture or assembly of the Products from the facilities approved by Company, or change the location from which the Products are shipped, without first following Company’s relocation requirements and obtaining Company’s advanced written consent. Nothing in this Section 14(b) is intended to excuse Seller from proceeding with the Order as changed or amended.
15. TERM; TERMINATION FOR CAUSE
(a) The term of these Terms and Conditions will commence on Seller’s acceptance of these Terms and Conditions (the “Effective Date”) and will continue until the last to expire of the Purchase Orders entered into hereunder, unless earlier terminated as provided in these Terms and Conditions (collectively, “Term”).
(b) Either Party may terminate the Order in the event that the other Party breaches any material provision of the Order and such breach is not cured within thirty (30) days following the receipt by the defaulting Party of notice of such breach.
(c) Company may terminate the Order if Seller becomes insolvent or generally fails to pay, or admits in writing its inability to pay, its debts as they become due, or voluntarily commences any proceeding or files any petition under any bankruptcy, insolvency or similar law or seeking dissolution, liquidation or reorganization or the appointment of a receiver, trustee, custodian, conservator or liquidator for itself or a substantial portion of its property, assets or business or takes corporate action for the purpose of effecting any of the foregoing, or an order for relief is entered in a case under the Bankruptcy Code in which Seller is a debtor, or involuntary proceedings are or an involuntary petition is commenced or filed against Seller under any bankruptcy, insolvency or similar law, unless any such petition is dismissed within forty-five (45) days.
(d) Without limiting any other right or remedy Company may have, Company may, by written notice, cancel a Purchase Order, in whole or in part if, in Company’s sole determination, if Seller: (i) fails to deliver the Products in accordance with the delivery schedule in the Purchase Order; (ii) fails to replace or correct defective or nonconforming Products in accordance with the provisions of Section 7; (iii) fails to perform any of the other provisions of the Order; (iv) states an intention not to perform or otherwise rejects its obligations under the Order; or (v) fails to make progress under the Order as to endanger performance in accordance with its terms.
(e) If all or a portion of a Purchase Order is cancelled pursuant to Sections 15(b) or 15(c), Company may procure, upon such terms and in such manner as Company may deem appropriate, goods or services similar or substantially similar to those canceled. Seller will then be liable to Company for any excess costs occasioned thereby.
(f) If all or a portion of the Purchase Order is canceled by Company or Seller for any reason, Company may require Seller to transfer title and to deliver to Company, in the manner and to the extent directed by Company: (i) all completed Products not yet delivered; and (ii) any partially completed Products that Seller has produced or acquired for the performance of the cancelled Purchase Order. Payment for such items will be in an amount agreed upon by Seller and Company, not to exceed the price set forth in the cancelled Purchase Order.
(g) Nothing in this Section 15 is intended to excuse Seller from proceeding with any uncancelled portion of the Order.
16. TERMINATION FOR CONVENIENCE
Company may cancel a Purchase Order, in whole or in part, at any time for its convenience upon ten (10) business days’ written notice to Seller. Upon such cancellation, Seller will, to the extent and at the times specified by Company, stop all work under the Purchase Order and place no further orders for materials to complete the work.
17. SURVIVAL; TRANSITION OF SUPPLY
(a) The provisions of these Terms and Conditions of Purchase that are intended by their terms to survive cancellation or expiration of the Order will survive any such cancellation or expiration of the Order, including without limitation Sections (b), 4, 6, 7, 9, 11, 12, 13, 17, 18, 19, 20, 21, 23, 24, and 26.
(b) Upon Company’s request Seller agrees to cooperate in a transition of supply of the Products as reasonably requested by Company. Seller will continue production and delivery of all Products under the Order, for such period as is reasonably required by Company to complete the transition to any alternate supplier(s), up to a maximum of twenty four (24) months from the effective date of termination of the Order (unless the Parties agree in writing to extend for a longer period).
Seller will defend (at Company’s option), indemnify, and hold Company and its Affiliates and their agents, Customers, successors, and assigns (“Company Indemnitees”) harmless from and against all claims, suits, actions or proceedings (“Claims”) and pay all liabilities, losses, damages (including without limitation judgments, amounts paid in settlement and other recoveries), fees and expenses (including without limitation fees of counsel and experts), and other costs, including all recall costs (collectively, “Expenses”) arising out of or relating to: (a) any breach or nonperformance by Seller of the Order; (b) any injury or death of any person or damage or loss of any property allegedly or actually resulting from or arising out of any act, omission or negligent work of Seller or its employees, agents, or subcontractors in connection with performing the Order, Seller’s changes to the design of the Products, or otherwise arising out of or relating to the use of the Products; (c) any alleged defect in material or workmanship of the Products, whether latent or patent, including allegedly improper construction or design or from the failure of the Products to comply with Specifications; (d) violation of Applicable Law; (e) any actual or alleged infringement, misappropriation, or violation of Intellectual Property Rights or any other rights of any third party; and (f) any negligent, willful, or reckless act or omission, or any dishonesty or fraud by Seller or its subcontractors. If any injunction is or may be issued as the result of any infringement Claim under Section 18(e), Seller will, at Company’s option, (A) refund to Company the amounts paid to Seller for the Products covered by the injunction or (B) promptly furnish Company with non-infringing Products acceptable to Company. Seller’s indemnification obligations under this Section 18 are expressly excluded from any and all limitations of liability under the Order.
(a) Seller will maintain the confidentiality of any information provided by Company or its representatives, and any materials or information that contain, or are based on, any such information. Seller may only use such information in connection with its performance under the Order and will not provide such information to any third party (including, without limitation, Seller’s subcontractors) without Company’s advance written consent. Seller will take at least the same degree of care that it uses to protect its own confidential and proprietary information of similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid the unauthorized use or disclosure of such information. The obligations of this Section 19 will not apply with respect to any information that: (i) is or becomes publicly known through no act or omission of Seller; or (ii) was rightfully known by Seller without confidential or proprietary restriction before receipt from Company, as evidenced by Seller’s contemporaneous written records. In addition, Seller may use or disclose Company’s confidential information to the extent (A) approved in writing in advance by Company or (B) Seller is legally compelled by subpoena or other legal process to disclose such information, provided, however, that prior to any such compelled disclosure, Seller will give Company reasonable advance notice of any such disclosure and will cooperate with Company in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the confidential information. All specifications, drawings, samples and other data furnished by Company will be treated by Seller as confidential information, will remain Company’s property and will be returned to Company on request. Seller will limit access to Company’s confidential information to those employees and permitted subcontractors of Seller who have a need to know such information in order to perform its obligations under the Order and who are bound by confidentiality and non-use obligations as protective of Company as Seller’s obligations to Company under the Order.
(b) Seller will not, without first obtaining the written consent of Company, in any manner: (i) advertise or publish the fact that Seller has contracted to furnish Company the goods or services covered by the Order; (ii) use Company’s trademarks, trade names or confidential information in Seller’s advertising or promotional materials; or (iii) use Company’s trademarks, trade names or confidential information in any form of electronic communication such as websites (internal or external), blogs or other types of postings.
(c) Upon any expiration or termination of this Order or upon the request of Company, Seller will return or destroy, at Company’s option, all confidential information of Company and any copies thereof. In addition, Seller will promptly destroy any electronic or otherwise non-returnable embodiments of such confidential information.
20. INTELLECTUAL PROPERTY
(a) Subject to Section 20(b), as between the parties, Seller retains all of its right, title and interest in and to all Technology developed, authored, created, conceived, discovered, made or reduced to practice by Seller separate from and not in connection with the Order, and without use of or reference to Develop Technology or Company Technology (as defined below).
(b) As between the parties, Company retains all of its right, title and interest in and to all Technology developed, authored, created, conceived, discovered, made or reduced to practice by or for or licensed to Company and all Company Data (collectively, the “Company Technology”). Unless expressly provided in the Order or otherwise agreed to in a writing signed by Company, no rights or license is granted under the Order to use Company Technology other than the right for Seller to use Company Technology as required to perform Seller’s obligations under the Order. Seller will not use or disclose Company Technology for any other purpose.
(c) All right, title and interest in and to the Technology developed, authored, created, conceived, discovered, made or reduced to practice by or on behalf of Seller in connection with the Order or through use or reference to Company Technology or Company Data (“Developed Technology”) will be owned exclusively by Company. Accordingly, Seller hereby irrevocably and perpetually assigns and agrees to assign to Company all rights, title and interest worldwide in and to Developed Technology. Seller represents and warrants that it has the right to assign the Developed Technology to Company. To the extent that any Developed Technology is not assignable or Seller retains any right, title or interest in and to any Developed Technology for any reason, Seller (i) unconditionally and irrevocably waives the enforcement of such rights, and all claims and causes of action of any kind against Company with respect to such rights, and (ii) grants to Company a perpetual, irrevocable, fully paid-up, royalty free, transferable, sublicensable (through multiple levels of sublicensees), exclusive, worldwide right and license to reproduce, prepare derivative works of, distribute, display, perform (publicly or otherwise), make, have made, import, sell, offer to sell, use, and otherwise exploit all or any portion of the Developed Technology, in any form or media (now known or later developed). Seller further irrevocably waives any “moral rights” or other rights with respect to attribution of authorship or integrity of the Developed Technology that Seller may have under any Applicable Law under any legal theory.
(d) Seller hereby assigns and agrees to assign to Company all right, title, and interest to all ideas, proposals, input or suggestions Seller provides pertaining to the Developed Technology, Company Technology, or Company Data (“Feedback”), and all Intellectual Property Rights pertaining to such Feedback.
(e) Seller will reasonably cooperate with Company and its designees, both during and after the term of the Order, at Company’s cost and expense, in applying for, obtaining, perfecting, evidencing, and enforcing Company’s ownership of the Developed Technology (including executing such written instruments as may be prepared by Company and doing such other acts as may be reasonably necessary in the opinion of Company to obtain a patent, register a copyright, or otherwise enforce Company’s rights the Developed Technology). Seller will not file or prosecute any patent applications that claims any invention within the Developed Technology related to LiDAR Technology (including its manufacture or use). Seller will not use any confidential information of Company in connection with the filing or prosecution of any patent application.
(f) For the purpose of the Order, (i) “Technology” means information, materials, know-how, knowledge, designs, drawings, specifications, schematics, software programs, applications, utilities, development tools, databases and embedded systems (including, without limitation, source and object codes), manuals and other documentation, data, processes, methods of production and other related information and materials, whether tangible or intangible, together with all Intellectual Property Rights embodied therein and/or relating thereto; (ii) “Intellectual Property Rights” means all intellectual property and proprietary rights worldwide, including rights in and to: patents and other governmental grants for the protection of inventions or industrial designs; copyrights and moral rights (including analogous rights thereto); trade secrets and know-how (including analogous rights thereto); trademarks, trade names, logos, service marks, designs, emblems, signs, insignia, slogans, other similar designations of source or origin and general intangibles of like nature; database rights; and any registrations or applications for registration for any of the foregoing, including any provisionals, divisions, continuations, continuations-in-part, renewals, reissuances, re-examinations and extensions (as applicable); and (iii) “Company Data” means (A) all information and data that Company makes available to Seller, including Customer information and data, in connection with the performance of the Order that at the time of disclosure is not generally available to the public, including without limitation performance standards, product characteristics, specifications, drawings, descriptions, samples, designs, manufacturing data and other information, and (B) any and all data (excluding Seller-provided data regarding its internal costs of producing goods or services that it provides to Company under the Order) that is entered into or processed by Seller directly or indirectly using any system that Seller owns or controls directly or indirectly for the purpose of performing Seller’s obligations under the Order. Information shall not be deemed to be available to the general public for the purposes of the above exclusions from the definition of Company Data (x) merely because it is embraced by more general information in the prior possession of Seller or of others, or (y) merely because it is expressed in public literature in general terms not specifically in accordance with the Company Data.
21. COMPLIANCE WITH LAWS
(a) Seller will ensure that Seller and the Products comply with all Applicable Law of the country(ies) of destination of the Products or products in which the Products are ultimately incorporated, or that relate to the manufacture, labeling, transportation, importation, exportation, licensing, approval or certification of goods or services, including, without limitation, those relating to environmental matters, the handling and transportation of dangerous goods or hazardous materials, data protection and privacy, wages, hours and conditions of employment, subcontractor selection, discrimination, occupational health/safety and motor vehicle safety. Seller further represents that neither it nor any of its subcontractors, vendors, agents or other associated third parties will utilize child, slave, prisoner or any other form of forced or involuntary labor, or engage in abusive employment or corrupt business practices, in the supply of goods or provision of services under the Order. Seller warrants that, in making the Products, it will act at all times in compliance with the Fair Labor Standards Act of 1938, as amended.
(b) To the extent applicable for the goods or services provided hereunder, Seller will comply with all applicable environmental requirements that apply to hazardous materials. Environmental requirements includes without limitation all global, federal, state, provincial, and local laws, rules and regulations pertaining to the protection of human health, safety, wildlife or the environment. Hazardous materials includes, without limitation, any material or substance that is regulated by an environmental requirement. Seller certifies that all Products sold to Company which are required to be registered on an official inventory maintained by the pertinent governmental jurisdiction have been registered in full compliance with Applicable Law, and Seller will provide immediate notice to Company of any use restrictions, reporting requirements, or other obligations imposed with respect to such goods. Seller will fully disclose to Company all materials and substances contained in the Products using the International Material Data System (IMDS) (www.mdsystem.com). Seller will provide Company with Safety Data Sheets (SDS) for materials and mixtures, including hazard information and safe use practices, in accordance with the United Nation’s Globally Harmonized System (GHS) of Classification and Labeling of Chemicals and the European Classification, Labeling & Packaging (CLP) regulation. Seller will economically use raw materials, energy, water and other natural resources and to seek continuous improvement in the environmental sustainability of the Products throughout their life-cycle (production, use and disposal).
(c) When acting on behalf of Company in any way, Seller shall: (i) comply with all applicable anti-bribery and anticorruption laws, including, but not limited to the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act 2010, as such acts may be amended from time to time; (ii) not make, directly or indirectly, any payments or give anything of value to (A) any government official (including employees of government departments, agencies, or instrumentalities; employees or agents of wholly or partially government-owned businesses; political parties; candidates for political office; and, employees or agents of public international organizations), political party or party candidate, for the purpose of either influencing such person in his or her official capacity or securing an improper advantage in order to obtain or retain business or an advantage in conducting such business, or (B) any other person in order to induce or reward such person for the corrupt or improper performance of a function or activity in the course of such person’s employment or when acceptance of the offer would itself constitute such corrupt or improper performance; (iii) comply with all Applicable Law in the countries where the Products are designed and manufactured regarding the treatment of employees, environmental protection and health and safety; and (iv) comply with all Applicable Law in the country of delivery related to product compliance, including but not limited to applicable product safety and environmental standards.
(d) Upon Company’s request, Seller will provide documentation demonstrating its compliance with this Section 21. At Company’s request, Seller will certify in writing its compliance with this Section 21.
Seller will obtain and continuously maintain in force during the Term (a) statutory worker’s compensation insurance, (b) employer’s liability insurance, (c) commercial general liability insurance, including contractual liability and products and completed operations liability, (d) automobile liability insurance, including owned, hired and non-owned liability, (e) crime insurance, including employee theft, and (f) all-risk property insurance covering Seller’s property and all Company property, raw materials and finished products while in Seller’s possession or in Seller’s care, custody and control, all in amounts and coverages sufficient to cover all claims hereunder. Unless Company instructs otherwise in writing, coverage for specific above-referenced categories of insurance will be not less than the following: $1,000,000 in employer’s liability insurance; $5,000,000 in commercial general liability insurance; and $5,000,000 in automobile liability insurance. Such policies will name Company as an additional insured thereunder; be primary and not excess over or contributory with any other valid, applicable, and collectible insurance in force for or maintained by Company; and provide that the insurer will give Company thirty days prior written notice of cancellation or material change in coverage. Seller waives, and Seller will cause its insurers to waive, any right of subrogation or other recovery against Company or its subsidiaries, including their respective employees, officers, directors, agents or representatives. Company may require Seller to furnish evidence of the foregoing insurance, but Company’s failure to request evidence of insurance will in no event relieve Seller of its obligation under this Section 22. Seller will be financially responsible for any of Seller’s premiums, deductibles, retentions, self-insurance, co-insurance, uninsured amounts, or any amounts in excess of policy limits.
23. REMEDIES; SPECIFIC PERFORMANCE
The rights and remedies reserved to Company in the Order are cumulative with, and additional to, all other rights and remedies of Company under Applicable Law or in equity. Seller acknowledges that money damages will not be a sufficient remedy for any actual or threatened breach of the Order by Seller and that, in addition to all other rights and remedies that Company may have, Company will be entitled to specific performance and temporary, preliminary and permanent injunctive relief in connection with any action to enforce the Order, without any requirement of a bond or other security to be provided by Company.
24. GOVERNING LAW; JURISDICTION
This Order and any claims relating to the goods or services provided under the Order will be governed by the laws of the State of California, without reference to conflicts of laws principles, and further excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980). Any dispute regarding this Order will be subject to the exclusive jurisdiction of the California state courts in and for Santa Clara County, California, U.S.A. (or, if there is federal jurisdiction, the United States District Court for the Northern District of California), and the parties agree to submit to the personal and exclusive jurisdiction and venue of these courts.
25. COMPLIANCE WITH LAWS
(a) In providing the Products under the Order, Seller shall comply with all Applicable Laws.
(b) In particular, Seller agrees to comply with, as applicable, 31 U.S.C. § 1352 relating to limitations on the use of appropriated funds to influence certain Federal contracts; 18 U.S.C. § 431 relating to officials not to benefit; 40 U.S.C. § 3701, et seq., Contract Work Hours and Safety Standards Act; 41 U.S.C. §§ 51-58, Anti-Kickback Act of 1986; 41 U.S.C. § 265 and 10 U.S.C. § 2409 relating to whistleblower protections; 49 U.S.C. § 40118, Fly American; 41 U.S.C. § 423 relating to procurement integrity; Executive Order 13658, concerning minimum wage requirements for federal contractors.
(c) Further, Seller agrees to comply with Executive Order 11246 and the provisions of 41 C.F.R. chapter 60 pertaining to equal opportunity and affirmative action, including, but not limited to, 41 C.F.R. §§ 60-1.4 and 60-1.12, pertaining to equal opportunity; 41 C.F.R. §§ 60-1.40 through 60-1.43, requiring a written affirmative action plan; 41 C.F.R. §§ 60-300.5 and 60-300.40, which prohibits discrimination against qualified protected veterans and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans; 41 C.F.R. §§ 60-741.5, 60-741.40, which prohibits discrimination against qualified individuals on the basis of disability and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified individuals with disabilities.
Any notice required or permitted to be given under the Order will be delivered (a) by hand, (b) by registered or certified mail, postage prepaid, return receipt requested, to the address of the other Party first set forth above, or to such other address as a Party may designate by written notice in accordance with this paragraph, (c) by overnight courier, or (d) by e-mail with receipt confirmed or confirming copy mailed under the conditions described in (b). Notice so given will be deemed effective when received, or if not received by reason of fault of addressee, when delivered. If any term of the Order is invalid or unenforceable under Applicable Law, such term will be deemed reformed or deleted, as the case may be, but only to the extent necessary to comply with such Applicable Law, and the remaining provisions of the Order will remain in full force and effect. The failure of Company to enforce at any time any of the provisions of the Order, to exercise any election or option provided herein or to require at any time the performance by Seller of any of the provisions herein will not in any way be construed to be a waiver of such provisions. Seller and Company are independent contracting parties and nothing in the Order will make either Party the agent or legal representative of the other for any purpose whatsoever, nor does it grant either Party any authority to assume or to create any obligation on behalf of or in the name of the other. Seller may not assign the Order or transfer any rights or obligations under the Order without the prior written consent of Company. Any purported assignment, transfer, delegation or other disposition by Seller will be null and void. Subject to the foregoing, the Order will be binding upon and will inure to the benefit of Seller and Company and their respective successors and assigns. The headings of the Sections in these Terms and Conditions are for convenience only and will not be deemed to affect, qualify, simplify, add to, or subtract from the contents of the clauses that they reference. As used in these Terms and Conditions: (i) the terms “include” and “including” are meant to be inclusive and will be deemed to mean “include without limitation” or “including without limitation,” (ii) the word “or” is disjunctive, but not necessarily exclusive; (iii) words used herein in the singular, where the context so permits, will be deemed to include the plural and vice versa; (iv) references to “dollars” or “$” will be to United States Dollars unless otherwise specified; and (v) unless otherwise specified, all references to days, months or years will be deemed to be preceded by the word “calendar.” In the event of any conflict between the provisions of these Terms and Conditions and those of any Purchase Order or any other document, the provisions of these Terms and Conditions will control unless expressly stated otherwise in such Purchase Order or document. In the event of any conflict between the provisions of any Purchase Order and any other document (other than the Terms and Conditions) that is referenced therein or in these Terms and Conditions, the provisions of the Purchase Order will control. The Order, and any documents attached hereto and incorporated by reference, constitutes the entire agreement between Seller and Company with respect to the subject matter hereof.