Vendor and The Solaria Corporation, 6200 Paseo Padre Parkway, Fremont, California 94555 ("Buyer") agree, to the fullest extent permitted by law, to be bound by all terms and conditions contained herein, all of which are a part of each Purchase Order ("PO") issued to Vendor by Buyer. Any provisions in Vendor's documents, including but not limited to invoices, billing statements, acknowledgment forms, "shrink wrap" licenses or similar documents that are inconsistent with the provisions of these PO terms and conditions are of no force or effect, unless separately agreed to in writing by both parties.
The cost price set forth in each PO is inclusive of the cost of development, manufacturing, packaging, labeling, and shipping, unless otherwise specified in the PO.
Buyer PO can be transmitted to Vendor through Buyer's affirmative written, electronic, or verbal communication, or through Buyer's affirmative written, electronic, or verbal communication approving a Vendor Quote. Simultaneous with Buyer's communication, Vendor accepts these PO Terms and Conditions, unless within 24 hours of Buyer's communication, Vendor affirmatively brings in writing to the immediate attention of Buyer's purchase agent any PO Terms and Conditions it seeks to modify: the PO will be maintained and the PO Terms and Conditions maintained extant unless Buyer communicates in writing its acceptance of some or all of Vendor's sought modifications.
Vendor Representations and Warranties.
Vendor represents and warrants to Buyer, in addition to all warranties implied by law, that each item of goods, services, software, or other product described in the PO, together with all related packaging and labeling and other material furnished by Vendor ("Equipment"), must
(a) be free from defects in design, workmanship, and materials including, without limitation, such defects as could create a hazard to life or property; (b) conform in all respects with all applicable federal, state, and local laws, orders and regulations, including, without limitation, those regarding (i) safety, (ii) content, (iii) flammability, (iv) weights, measures, and sizes, (v) special use, care, handling, cleaning, or laundering instructions or warnings, (vi) processing, manufacturing, labeling, advertising, selling, shipping, and invoicing, (vii) registration and declaration of responsibility, and (viii) occupational safety and health; (c) not infringe or encroach upon Buyer's or any third party's personal, contractual or proprietary rights, including, without limitation, patents, trademarks, trade names, copyrights, rights of privacy, or trade secrets; (d) conform to all of Buyer's expressed specifications and to all articles shown to Buyer as Equipment samples; (e) conform to the documentation therefore and to the applicable specifications, drawings, samples, or to other descriptions set forth in the PO, (f) have good, unencumbered title held by Vendor and, through the PO, pass good and unencumbered title to Buyer, and (g) if the PO includes maintenance/support of Equipment, include such maintenance and support as is reasonably necessary for Buyer to make effective use of the Equipment. Vendor's published specifications for Equipment are hereby incorporated into the applicable PO; if such specifications conflict with a PO, the latter supersedes
Time is of the essence in the performance of the PO. Buyer reserves the right to cancel the PO in accordance with the termination section below and to charge the Vendor with any damages incurred as a result of the Vendor's failure to make delivery within the time specified in the PO, which failure is a material breach of the terms of the PO. Vendor agrees to follow the invoicing instructions issued by and available from Buyer's Accounting Department, which instructions are incorporated by reference into the PO. Vendor agrees to follow the shipping instructions issued by and available from Buyer's Transportation Department, which instructions are incorporated by reference into the PO. Vendor shall use the carrier(s) selected by the Buyer if Buyer so requests. Buyer's PO number shall be plainly marked on all packages, bills of lading, and shipping orders. Buyer's count and weight shall be conclusive. Vendor shall not ship far in advance of schedule or make partial shipment unless otherwise agreed in writing by Buyer.
Drawings, Patterns, Etc.
All designs, patterns, drawings, tracings, materials molds, tooling, and other items that the Buyer makes available, prepares, or furnishes to the Vendor pursuant to a PO shall be and/or remain the property of the Buyer, and such items shall be delivered by the Vendor to the Buyer upon completion or termination of the PO. No reproductions of such items shall be retained by the Vendor except as authorized in writing by the Buyer. Such items shall not be used or disclosed to third parties by the Vendor or anyone under its control without the prior written consent of the Buyer.
Vendor acknowledges that it has in its possession all applicable specifications, drawings, and documents (including, without limitation, statements of work) necessary to perform its obligations under the PO at the price and scheduling stated. Each party shall comply with all applicable laws, including without limitation, government export control, privacy, and data protection laws. At all times, Vendor shall privately maintain all aspect of Buyer's information, and shall not divulge any information regarding Buyer or the PO without prior written permission of Buyer unless under court order.
Vendor Indemnification of Buyer.
Vendor agrees to reimburse, indemnify, hold harmless, and defend, at Vendor's expense, and to pay any attorney's fees incurred by Buyer, Buyer subsidiary, or Buyer affiliate companies, against all damage, loss, expense, claim, liability, fine, settlement, or penalty, including, without limitation, claims of infringement of patents, copyrights, or trademarks, or of unfair competition, or of bodily injury, property damage, or other damage, arising out of any use, possession, or sale of the Equipment or from any failure of Vendor to properly perform under a PO. Vendor is not relieved of the forgoing indemnity and related obligations by allegations or any claim of negligence on the part of Buyer; provided, however, Vendor is not liable hereunder to the extent any injury or damage is finally judicially determined to have been proximately caused by the sole negligence of Buyer. Vendor must obtain adequate insurance to cover such liability under each PO and must provide copies of the applicable certificate(s) of insurance upon request of Buyer.
Defective or Non-Conforming Equipment.
If any Equipment is or becomes defective, unsuitable, or does not conform to all terms hereof, to the PO, and to all actual warranties or warranties implied by law, then Buyer may, at its option, return it to Vendor for full refund of the purchase price, or may require Vendor or Vendor-certified Buyer-approved third party repair or replacement of it at Vendor's expense, or may charge Vendor such price for expense of repair or replacement and the cost of any incurred inbound and outbound freight as Buyer actually incurs.
Buyer Right to Cancel.
Buyer may, without notice and in addition to all other rights and remedies, cancel, terminate, and/or rescind all or part of a PO (and other
affected or related POs) in the event Vendor breaches or fails to perform any of its obligations in any material respect, Vendor becomes insolvent or proceedings are instituted by or against Vendor under any provision of any federal or state bankruptcy or insolvency laws, or Vendor ceases its operation. Vendor agrees to inform Buyer immediately in writing of any failure to timely ship all or any part of a PO, and Buyer's acceptance of any Equipment after the applicable delivery date does not constitute a waiver of, or otherwise limit, any of Buyer's rights resulting from the late delivery, nor obligate Buyer to accept delivery of additional Equipment under the PO.
Inspection, Deductions and Set Off.
All Equipment shall be received subject to Buyer's right to inspection and rejection within a reasonable period of time after receipt. Buyer shall have the right to perform adequate tests to determine whether the Equipment conforms to the PO and all the representations and warranties
thereby incorporated. Any sums payable to Vendor are subject to all claims and defenses of Buyer, whether arising from this or any other transaction, and Buyer may set off and deduct against any such sums all present and future indebtedness. Buyer will reasonably provide a copy of the deduction voucher(s) for debits taken by Buyer against Vendor's account as a result of any returns or adjustments. Vendor accepts and agrees to each such deduction unless Vendor, within 15 days after receipt of the deduction voucher, notifies Buyer in writing as to why a deduction should not be made and provides documentation supporting the reason(s) given. Such written notice must be directed to Buyer's Vendor Accounting Department. Buyer is not liable to Vendor for interest or late charges with regard to disputed amounts.
California Contract and Jurisdiction.
EACH PO, AND ALL OTHER ASPECTS OF THE BUSINESS RELATIONSHIP BETWEEN BUYER AND VENDOR, MUST BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO CONFLICTS OF LAWS PROVISIONS THEREOF, AND WITHOUT REGARD TO THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE SALE OF GOODS. VENDOR AGREES, WITH RESPECT TO ANY LITIGATION VENDOR CONTEMPLATES WHICH RELATES TO ANY PO OR WHICH OTHERWISE ARISES DIRECTLY OR INDIRECTLY OUT OF OR IN CONNECTION WITH SAID BUSINESS RELATIONSHIP OR ANY TRANSACTION OF ANY NATURE BETWEEN BUYER AND VENDOR, TO COMMENCE SAME: (I) EXCLUSIVELY IN (AND VENDOR HEREBY CONSENTS TO THE JURISDICTION OF) THE STATE OF CALIFORNIA COURTS OF ALAMEDA COUNTY, CALIFORNIA OR THE UNITED STATES DISTRICT COURT IN SAN FRANCISCO, CALIFORNIA, AND (II) WITHIN 18 MONTHS FROM THE DATE OF BUYER'S LAST PO TO VENDOR OR THE PERIOD PRESCRIBED BY THE APPLICABLE STATUTE OF LIMITATIONS, WHICHEVER IS
Limitation of Liability.
In no event shall Buyer be liable for any incidental, indirect, special, and consequential or punitive damages, even if Buyer knew or should have known of the possibility of such damages.
Vendor shall not, without the prior written consent of Buyer, in any manner advertise or publish the fact that Vendor has contracted to furnish Buyer with the Equipment provided under the PO.
Hazardous Chemicals and Hazardous Materials.
Prior to shipment or transfer of any hazardous chemical(s), as defined by regulations promulgated pursuant to the Occupational Health and Safety Act ("OSHA"), Vendor shall provide Buyer with a complete, up-to-date Material Safety Data Sheet and shall properly mark such hazardous chemical(s) with a label satisfying the requirements of OSHA's Hazard Communication Standard (29 CFR Part 1910.1200 et seq.). Any shipment or transfer by Vendor of any hazardous material(s) (as defined by regulations promulgated by the U.S. Department of Transportation ("DOT") and Appendix A of Federal Standard number 313A), shall be conducted consistent with the requirements of DOT regulations promulgated at 40 CFR Part 171 et seq.
Neither a PO nor any right, duty, or obligation thereunder is assignable by Vendor without the prior written consent of Buyer, to be given or not at Buyer's sole option. Buyer may assign a PO or any right, duty, or obligation thereunder to a subsidiary or affiliate upon notice to Vendor. Any prohibited assignment is void.
Title and Risk of Loss.
Except as otherwise expressly provided herein, title to and risk of loss on all Equipment shipped by Vendor to Buyer shall pass to Buyer only upon final acceptance of the Equipment by Buyer.
Taxes and Duties.
The price stated in the PO includes all applicable taxes and duties, except state and local sales and use taxes, which by statute may be passed on to Buyer. Such sales and use taxes shall be separately itemized in Vendor's invoice. The PO shall include all related customs duty and import drawback rights, if any, including rights developed by substitution and rights, which may be acquired from Vendor's suppliers and which Vendor shall transfer to Buyer: Vendor agrees to inform Buyer of the existence of all such rights, and to supply such documents as may be required to obtain such drawbacks, unless waived in writing by Buyer. Vendor agrees to certify to Buyer the country of origin for Equipment delivered under the PO.
Buyer may terminate all or any part of the PO at any time without cause by so notifying Vendor in writing. In the event of termination by Buyer without cause, Buyer shall be responsible for termination charges for parts manufactured to date but not in excess of sixty (60) days in advance of the PO schedule, provided however, that Vendor must submit its termination claim to Buyer within thirty (30) days after the effective date of termination. Vendor hereby waives any right that it may have to specific performance under this contract. Buyer may terminate all or any part of the PO without incurring any liability upon the occurrence of any of the following causes:
a) A material breach of any term of the PO by Vendor, including, but without limitation, untimely shipments or shipments of Equipment which do not conform to the contract.
b) Assignment or attempted assignment of the PO in whole or in part by Vendor without the written consent of the Buyer.
c) The filing by or against Vendor of any insolvency or bankruptcy proceedings or proceedings for reorganization, receivership, or dissolution.
d) Any material adverse change in the financial condition of Vendor which Buyer in good faith believes will impair the likelihood that Buyer will receive timely and full performance of the contract.
Buyer may, at its option, provide Vendor with certain confidential or proprietary information relating to Buyer's purchase of Vendor's Equipment. Vendor acknowledges that such information, together with any other information of or pertaining to Buyer provided to Vendor by Buyer or learned by Vendor as a consequence of the business relationship between Buyer and Vendor (the "Buyer Information"), is provided and received in confidence, and Vendor must at all times preserve and protect the confidentiality thereof. Vendor agrees to take all necessary steps to ensure that the Buyer Information is not disclosed to, or used by, any person, association or entity, except Vendor's own employees having a need to know. BUYER MAKES NO WARRANTY WITH RESPECT TO THE BUYER INFORMATION OR THE ACCURACY OR COMPLETENESS THEREOF, AND IS PROVIDING SAME ON AN "AS IS" BASIS; ALL IMPLIED WARRANTIES WITH RESPECT TO THE BUYER INFORMATION, INCLUDING THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXCLUDED. Vendor acknowledges and agrees that any sales forecasts, quantity purchase estimates, or similar projections received from Buyer are not purchase commitments of Buyer, but rather represent estimates for planning purposes only, and that the Buyer has no obligation to purchase or otherwise compensate Vendor for any of Vendor's finished products, or unfinished raw materials, not covered by a PO.
(a) All rights granted to Buyer hereunder are in addition to and not in lieu of Buyer's rights arising by operation of law. (b) Any provisions of a hard copy PO which are typewritten or handwritten by Buyer supersede any contrary or inconsistent printed provisions therein. (c) No modification of terms of
a PO including, without limitation, any price increase, is valid without the written authorization of Buyer. (d) Should any of the provisions of a PO be declared by a court of competent jurisdiction to be invalid, such decision does not affect the validity of any remaining provisions. (e) All of the terms and conditions herein apply to additional quantities of Equipment obtained from Vendor by Buyer, except to the extent covered by a new written Agreement.
Unless another agreement expressly references and incorporates the PO into such agreement (or otherwise makes the PO supplementary to such agreement) and such agreement provides for an order of precedence, the PO constitutes the entire agreement and exclusive statement of the terms between the parties with respect to the purchase and sale of the Equipment under the PO and terminates and supersedes all previous negotiations, communications, representations, or agreements between the parties. No alteration, modification or amendment of any of the provisions in the PO shall be binding unless in writing and signed by Buyer's authorized procurement representative(s).