Table of Contents
Purchase Order Terms
TERMS AND CONDITIONS ATTACHED TO CLEARONE PURCHASE ORDERS
ClearOne or one of its subsidiaries shall be referred to as the "Buyer" and the entity supplying Materials, Goods or Services ("Product") to Buyer shall be referred to as the "Seller". These Terms & Conditions will become a binding agreement ("Agreement") between the Buyer and the Seller. The Terms & Conditions may be modified only by a written document executed by Buyer.
This Agreement shall begin when accepted by the Seller via a formal written acknowledgment to the Buyer, or by commencement by Seller of any of the work stated in any Purchase Order, or after five business days of receipt of Purchase Order if no written objection has been delivered to Buyer. The Agreement shall remain effective unless cancelled sooner by Buyer in accordance with Section 5 of this Agreement.
Seller may not assign any of its duties and responsibilities as required under this Agreement. Buyer may freely assign its duties and responsibilities under this Agreement.
If any of the provisions of the Terms & Conditions are found to be invalid or unenforceable, the remaining portions of said document shall not be affected and shall be considered valid and enforceable.
Time is of the essence in this Agreement and deliveries are to be made in quantities and at times specified in schedules as furnished by Buyer. Buyer shall have no liability for payment for Product delivered to Buyer that is in excess of quantities specified in the delivery schedule nor shall Buyer have liability for the direct temporary suspension of scheduled shipments.
Buyer makes no representations or guarantees as to the volume of Product that Buyer will require Seller to provide under this Agreement; provided, however, Seller agrees to provide such Product as Buyer reasonably requests and as necessary to ensure adequate supply for maintaining production at Buyer facilities.
Acceptance by Buyer of late delivery of either the whole or part of an order shall not constitute a waiver of any claim for damages which the Buyer may have arising from any late delivery. Any Product shipped to Buyer in advance of any delivery schedule, without express written consent of Buyer, may be returned by Buyer to Seller at Seller's expense.
No Product shall be shipped or service performed under this Agreement until a Purchase Order has been provided by Buyer to Seller and a delivery date and location noted. These Terms & Conditions shall apply to all Purchase Orders agreed to by Buyer. All Product shall be delivered via a common carrier selected and/or approved by and at such times as designated by Buyer.
Seller shall be responsible for invoicing Buyer after each shipment of Product.
All invoices and shipping notices for Product shipped pursuant to any purchase order and these Terms & Conditions must reference: the purchase order number and/or any amendment or release number; Buyer part number; Seller's part number (where applicable); quantity of pieces in shipment; number of cartons or containers in shipment; Seller's name and number; and bill of lading number, before any payment will be made for Product by Buyer. Buyer reserves the right to return all invoices or related documents submitted incorrectly and payment terms will be determined as of the date of the latest correct invoice and/or shipping notice received. Any unnecessary expense resulting from misrouted shipments shall be charged to Seller. Unless otherwise specified herein, all charges for packing and crating are included in the purchase price, inclusive of applicable taxes, excises, duties, quotation fees or any other governmental impositions on or related to the production, sale or transportation of the Product, ceiling or other limitation of price established by any governmental authority, and subject to increase only with prior written consent of Buyer.
4. TAXES; FREIGHT CHARGES.
Seller shall collect and pay all applicable sales, use, excise or other transaction-based taxes, as required by law, to the appropriate taxing authority. Seller shall be solely responsible for any and all penalties and interest assessed thereon. Any tax collected by Seller from Buyer shall be clearly indicated on all invoices including tax rate and taxing authority. To the extent Seller is not required by law to collect such taxes, Buyer shall pay the applicable tax directly to the appropriate taxing authority. Unless specified otherwise on the face of this Purchase Order or in any attachments thereto, Seller shall be responsible for and pay all shipping and freight costs for delivering the Product to Buyer.
Premium shipping expenses and/or any other related expenses necessary to meet agreed upon delivery dates shall be Seller's sole responsibility and this cost may not be passed through to Buyer.
Buyer may by written notice to Seller terminate this Purchase Order, in whole or in part, without liability to Seller, in the event of a material breach by Seller of any terms or conditions hereof. Additionally, Buyer may by written notice to Seller terminate this Purchase Order for convenience, in whole or in part, as to all or any portion to the Product then not delivered or services then not performed, subject to an equitable adjustment between Buyer and Seller to be negotiated in good faith. Any such termination shall not relieve Buyer or Seller of any of their obligations as to any Product delivered/performed hereunder. Any termination by Buyer shall be without prejudice to any claims for damages or other rights of Buyer against Seller. Buyer shall have the right to audit all elements of any termination claim, and Seller shall make available to Buyer on request all books, records and papers relating thereto.
Upon termination or cancellation of this Agreement by Buyer, all Product stored by Seller for Buyer in excess of any open Buyer orders shall remain the property of and become the sole responsibility of Seller. In the event of termination or cancellation of this Agreement by Seller, all Product purchased by Buyer shall be delivered without interruption by Seller until all open orders are complete.
6. DELIVERY AND INSPECTION.
Seller will supply the Product to Buyer at the delivery site and by the date specified on the face of the Purchase Order or, if no date is so specified, within a reasonable time after Seller receives the Purchase Order. Time is of the essence of Seller performance of this Purchase Order. Risk of loss of the Product remains with Seller and title will not pass to Buyer until the Product are delivered to and accepted by Buyer. All Product shall be received subject to Buyer inspection and approval. Product that is not in good condition, damaged by delivery or rejected by Buyer as not conforming to this Purchase Order shall, at Buyer option, be returned to Seller at Seller risk and expense and shall not be replaced by Seller without Buyer written authorization.
Seller warrants that it has the following:
(1) it has good title to the Product and the right to transfer title to the Product free and clear of any lien, hypothecate, claim or other encumbrance of any kind;
(2) all Product will conform to any specifications and standards approved by Buyer, and to any samples, drawings and descriptions furnished by Supplier;
(3) all Product will be new (unless otherwise specified on the face hereof), free from defects or faults of any kind in design, materials and workmanship, and fit for their intended uses;
(4) all Product and their use, manufacture, sale, lease, distribution, or other commercialization do not and will not infringe, misappropriate or violate the trademarks, service marks, copyrights, patents, patent rights, trade secrets and other intellectual property rights of a third party; and
(5) all Product shall be performed expeditiously, consistent with any applicable standards of skill and care, and in compliance with the requirements of this Purchase Order and all applicable local, state, provincial and federal laws and regulations. The warranties contained herein are not exclusive; Buyer shall be entitled to all other warranties and remedies available to it at law or in equity. Without limiting any other remedy available to Buyer pursuant to this Purchase Order or otherwise, if Seller is in breach of any of its warranties, Seller will (i) at the election of Buyer, and at Seller cost (including any relevant transportation and labor costs), either replace or repair (including, if applicable, reinstall) the Product or re-perform the services to Buyer satisfaction, or (ii) without limiting the foregoing, pay an amount of damages if claimed by Buyer, upon presentation of a reasonable itemization of charges. Such charges may be subject to reasonable audit or review by Seller with the limited purpose of verification of the particular claim.
Buyer reserves the right at any time to make written changes in any of the following:
(1) specifications, drawings and data incorporated in this Agreement where the terms to be furnished are to be specially manufactured for Buyer;
(2) methods of shipment or packing;
(3) place of delivery,
(4) time of delivery,
(5) manner of delivery; and
(6) requested quantities.
Any such change shall be deemed not to affect time for performance or cost unless Seller notifies Buyer in writing within ten (10) calendar days after Seller receives any such change notice. Any claim by Seller for adjustment under this Section must be approved by an authorized representative of Buyer in writing before Seller may proceed with such change. Price increases shall not be binding on Buyer unless evidenced by a purchase order change or a revision issued and signed by an authorized representative of Buyer. Seller may not make any changes to this Agreement without the express written approval of Buyer.
9. CONFIDENTIALITY AND/OR PROPRIETARY INFORMATION.
Seller acknowledges and agrees that during the term of the Agreement, Seller will have access to certain Confidential and/or Proprietary Information concerning Buyer business and employees. Seller acknowledges and agrees that it will not, without the written consent of Buyer, directly or indirectly disclose any Confidential and/or Proprietary Information to any third party, or directly or indirectly use, exploit, copy or summarize any Confidential and/or Proprietary Information in any way except as necessary in performing Seller's duties and obligations as required by this Agreement. If requested by Buyer, Seller shall require its employees to execute confidentiality agreements prohibiting use or disclosure of Confidential and/or Proprietary Information.
Confidential and/or Proprietary Information is defined as: Buyer designs, schematics, Gerbera data, software or firmware programs; documentation; design concepts, drawings, specifications, engineering data, manufacturing technology, products; reference manuals; any knowledge, data, or records concerning the operations, policies, procedures, personnel matters, finances, business and marketing plans, strategic and/or operational plans, company contracts or any other information relating to the ownership or operation of Buyer, or any and all information, knowledge, data or records concerning any officer, director, owner, shareholder, employee, agent, servant, representative, consultant, agent, client or customer in any medium which is disclosed to Seller either before, during or after the termination of the Agreement pursuant to which Seller is performing services for Buyer.
Confidential and/or Proprietary Information does not include information that: is now or subsequently becomes generally available to the public through no fault of Seller; Seller can demonstrate was rightfully in its possession prior to disclosure by Seller; is independently developed by Seller without the use of any Confidential and/or Proprietary Information provided by Buyer or any of Buyer employees; Seller rightfully obtained from a third party who had the right to disclose the information, or; is disclosed pursuant to law, regulation or any court or regulatory agency order. Confidential and/or Proprietary Information is, and shall remain, the property of Buyer. At the conclusion of Seller's duties and responsibilities as required by the Agreement, Seller shall return and/or destroy, at Buyer option, all originals and any copies of any Confidential and/or Proprietary Information in any medium.
Without limiting Seller obligations or liabilities, Seller shall, at its sole expense, purchase and maintain the following insurance:
(1) commercial general liability insurance covering all liabilities for personal injury and property damage arising from the Product, with limits of liability of $1,000,000 for each occurrence and in the aggregate;
(2) workers' compensation insurance in compliance with the applicable laws of each jurisdiction affected by the Product;
(3) if this Purchase Order requires Seller to perform services onsite on Buyer property, employers' liability insurance covering all liabilities for personal injuries of Seller employees, with limits of liability of $5,000,000 for each occurrence and in the aggregate;
(4) if this Purchase Order requires Seller to use or provide for use motor vehicles, automobile (motor vehicle) insurance covering all liabilities for personal injury and property damage arising from the use of such vehicles, with limits of liability of $1,000,000 for each occurrence and in the aggregate;
(5) if this Purchase Order requires Seller to provide professional advice or services, professional liability insurance, with limits of liability of $5,000,000 for each claim and in the aggregate;
11. COMPLIANCE WITH LAWS, ETC.
In supplying the Product, Seller will comply with and ensure the following:
(1) its employees, agents, contractors and subcontractors ("Personnel") comply with all applicable laws and regulations, all reasonable directions and orders given by Buyer representatives, and all data protection, drug and alcohol, safety, health and environment guidelines, rules and procedures provided to Seller by Buyer; and
(2) ensure that its Personnel are aware that they enter onto Buyer site at their own risk.
12. U.S. FEDERAL ACQUISITION REGULATIONS.
If Seller is furnishing the Product within the United States, Seller agrees to comply with all applicable United States Federal Acquisition Regulations ("FAR") and related laws, rules, regulations and executive orders in connection with its activities hereunder. If Seller is not furnishing the Product within the United States, the FAR clauses will not be applicable to Seller.
Seller agrees to maintain on its premises for the life of the material and design life of the equipment covered by this Agreement and make available for inspection by Buyer during standard business hours, records pertaining to inspection, certification of processes, certification of material, test reports, qualification data, purchase order records and design data applying to this Agreement and, when requested by Buyer, to furnish Buyer with copies of such documents.
Seller agrees to retain all Buyers records for a period of three (3) years after receiving final payment from Buyer.
14. BUYER'S PROPERTY.
Any and all job specific drawings, schematics, Gerbera data, specialty equipment or information created and specifically paid for by Buyer: patterns, tools, dies, jigs, fixtures, blueprints, designs, specifications, drawings, photographic negatives, positives, artwork, copy layout, consigned material for production or repair and other items furnished by Buyer, either directly or indirectly, to Seller to perform this Agreement or for which Seller has been reimbursed by Buyer, shall be used by Seller only to complete orders for Buyer under this Agreement, shall remain the property of Buyer and shall be returned by Seller to Buyer when no longer required under this Agreement or when this Agreement is completed, whichever comes first.
Seller shall bear the risk of loss of and damage to Buyer property and Seller, at its own expense, shall keep such property insured for the benefit of Buyer. Buyer property shall at all times be properly housed and maintained by Seller; shall not be used by Seller for any purpose other than the performance of this order; shall be deemed to be personality; shall be conspicuously marked by Seller to identify same as the property of Buyer and indicate the Buyer name; shall not be commingled with the property of Seller or with that of any third person and shall not be moved from Seller's premises without Buyer prior written approval. Upon the request of Buyer, such property shall be immediately released to Buyer or delivered to Buyer by Seller, either FOB transport equipment at Seller's plant, properly packaged and marked in accordance with the requirements of the carrier selected by Buyer to transport such property, or in any location designated by Buyer, in which event Buyer shall pay to the Seller the reasonable cost of delivering such property to such location. Buyer shall have the right to enter onto Seller's property and premises at all reasonable times to inspect such property and Seller's records with respect to such property.
15. USE OF NAME/ADVERTISING.
Seller shall not, without first obtaining the written consent of Buyer, in any manner advertise, publish, or convey by word of mouth that Seller has contracted with Buyer to furnish Buyer the Product covered in this Agreement.
16. FORCE MAJEURE.
Either Buyer or Seller may suspend performance during the occurrence of an excusable delay, which shall be defined as: any delay not occasioned by the fault or negligence of the delayed party and which results from public enemy, restrictions, prohibitions, or allocations imposed by governmental authority, embargoes, floods, fires, typhoons, earthquakes, epidemics, unusually severe weather, delays of similar nature or governmental causes. Excusable delays do not include lockout, strikes or labor disputes, shortage of labor, lack of or inability to obtain raw materials, fuel or supplies or any other industrial disturbance. The nonperforming party shall promptly notify the other party of the cause of any such delay. Buyer may cancel any deliveries not made as specified or procure Product from another source during any period of suspension or excusable delay.
Seller agrees to indemnify, defend and hold Buyer harmless from any and all lawsuits, claims, fines, costs, losses, liabilities and damages, including any special, consequential, punitive and exemplary damages and costs (including reasonable attorney fees) which Seller may suffer or sustain or be in any way subjected to on account of injury to, or death of, any persons, or damage to or loss of property arising out of performance of this Agreement by Seller, its employees, agents, contractors or sub-contractors or representatives, or the use or sale of any Product by Buyer or Buyer customers. Seller shall carry and maintain insurance coverage sufficient to cover the above, and, upon Buyer request, shall furnish Buyer with satisfactory evidence of such insurance.
If Seller performs any work on Buyer premises or utilizes the property of Buyer, whether on or off Buyer premises, Seller shall indemnify and hold Buyer harmless from and against any liabilities, claims, demands or expenses (including reasonable attorney fees) for damages to the property of or injuries (including death) to Seller, its employees or any other person arising from or in connection with Seller's performance of work or use of Buyer property except for such liability claim, or demands arising out of the sole negligence of Buyer.
Seller agrees to defend, hold harmless and indemnify Buyer against all claims, demands, losses, suits, damages, liability and expenses (including reasonable attorney fees) arising out of any suit, claim or action for actual or alleged direct or contributory infringement of or inducement to infringe, any United States or foreign patent, trademark, copyright or industrial design right by reason of the manufacture, use or sale of any Product, Products ordered under this Agreement, including infringement arising out of compliance with specifications furnished by Buyer or for actual or alleged misuse or misappropriation of a trade secret resulting directly or indirectly from Seller's actions. Seller agrees to waive any claim against Buyer, including claims arising out of compliance with specifications furnished by Buyer. Seller agrees to grant to Buyer a worldwide, nonexclusive royalty-free, irrevocable license to repair and have repaired, to reconstruct and have reconstructed, to make or have made the Products ordered under this Agreement. Seller assigns to Buyer all right, title and interest in and to all trademarks, copyrights and industrial design rights in any material created for Buyer under this Agreement. Seller agrees that technical information and data furnished to Buyer in connection with this Agreement are disclosed on a non-confidential basis.
18. PROPRIETARY RIGHTS.
Seller acknowledges that any Product and/or other deliverables provided to Buyer under this Agreement shall be original to Seller and shall not incorporate any intellectual property rights (including copyright, patent, trade secret or trademark rights of any third party. Any Product and/or other deliverables are owned by Buyer and not by Seller. Such Product and/or deliverables include copyrightable works of original authorship (including but not limited to computer programs, technical specifications, documentation and manuals, ideas, inventions (whether patentable, patented or not), know-how, processes, compilations of information, trademarks, and other intellectual property. Seller agrees that all works of original authorship created by Seller in connection with this Agreement are "works made for hire" as that term is used in connection with the United States Copyright Act. To the extent that, by operation of law, Seller owns any intellectual property rights in any of the Product and/or other deliverables, Seller hereby assigns to Buyer all rights, title and interest, including copyrights and patent rights in such Product and/or deliverables.
Seller agrees to ensure that any subcontractors to Seller shall have contracts or agreements with Seller in writing consistent with the terms of this subsection.
19. Applicable Law and Forum.
This Agreement shall be governed and construed in accordance with by the laws of the State of Utah, United States All disputes arising under this Agreement shall be brought only before the Third Judicial District Court for Salt Lake County, State of Utah. The prevailing party shall be entitled to all costs incurred in obtaining such award, including reasonable attorney fees, together with all costs incurred in the collection process including attorney fees relating thereto.
Buyer may immediately cancel this Agreement and any order placed hereunder without any liability to Seller in the event of the happening of any of the following or any other comparable event: the insolvency of Seller; the filing of a voluntary petition in bankruptcy by Seller; the filing of an involuntary petition in bankruptcy against Seller; the appointment of a receiver or trustee for Seller; the execution of an assignment for the benefit of creditors of Seller, provided that such petition, appointment or assignment if made or filed involuntarily against Seller is not vacated or nullified within fifteen (15) calendar days of such an event.
Seller shall not assign this Purchase Order or any interest herein, including any performance or any amount that may be due hereunder, without Buyer prior written consent. This Purchase Order constitutes the entire agreement relating to the subject matter hereof and supercedes all prior and contemporaneous understandings or statements unless expressly contained herein. No modification or alteration of the terms hereof shall be binding unless such modification or alteration is in writing and signed by both Buyer and Seller. Either party's waiver of any breach, or failure to enforce any of the terms and conditions hereof, at any time, shall not in any way affect, limit or waive such party's right thereafter to enforce and compel strict compliance with every term and condition hereof. The Seller and Buyer have agreed that these terms and conditions be drafted in English.