Purchase Order Terms & Conditions
The following Purchase Order ("PO") Terms and Conditions ("Agreement") apply to all purchases of goods and services purchased by means of a PO, by Pearl Automation Inc. (“Buyer”) from the entity identified on the face of the PO (the “Seller”).
This Agreement will prevail in the event of a conflict with any prior offer, order acknowledgement or other document submitted by the Seller. Notwithstanding the foregoing, if there is an existing written agreement between the parties governing the purchase of goods and services, then the terms in the written agreement will supersede any conflicting terms in this Agreement in accordance with such written agreement’s terms.
1. GOODS, SERVICES AND DELIVERABLES
Seller will perform the services (“Services”) and/or provide the goods or deliverables (“Goods” and “Deliverables”) described in a PO in accordance with this Agreement.
2. DELIVERY AND RISK OF LOSS
Delivery of Goods shall be made pursuant to the details on the face of the applicable PO. Seller assumes all risk of loss until title passes to Buyer. Title to Goods passes to Buyer upon receipt of the Goods at the destination designated in a PO.
Buyer shall pay Seller the amount stated in the applicable PO. Unless otherwise stated in a PO, the price includes all costs, charges or taxes of any kind that will be paid by Buyer, and Buyer shall not be liable for any other costs, charges or taxes, including, without limitation, charges for inspection, packaging and shipping, all applicable sales, use and excise taxes, and any customs duties. Seller shall issue invoices to Buyer only upon delivery of the Goods or Deliverables or upon completion of applicable Services ordered by Buyer. All invoices should be submitted to: firstname.lastname@example.org, or such other address as Buyer designates from time to time. Unless different payment terms are specified on the face of the applicable PO, Buyer shall issue payment within 30 days of its receipt of a correct and conforming invoice. Any invoices not received within 6 months of the delivery of the Goods or Deliverables or completion of applicable Services shall be deemed forgiven by Seller. Payment is contingent upon delivery by Seller of conforming Goods or Deliverables or satisfactory completion of Services at Buyer’s discretion.
a. Warranties for Goods and/or Deliverables: Seller warrants that all Goods and Deliverables will:
Be new and conform to the specifications provided by Buyer;
Be fit for the purpose intended by Buyer;
Be free from defects;
Be free from security interests or any other lien, claim or other encumbrance; and
Not violate applicable law or the intellectual property rights of any third parties.
b. Warranties for Services and/or Deliverables: Seller warrants that all Services and Deliverables will:
- Be performed with reasonable skill and care, in a professional manner and in accordance with the description for such Services in the applicable PO;
- Be free from security interests or any other lien, claim or other encumbrance; and
- Not violate applicable law or the intellectual property rights of any third parties.
c. Warranty Period: All warranties under this Agreement continue for three years after the date of delivery to Buyer, unless a different warranty period is stated on the face of the PO.
d. Warranty Remedies: In the event of a breach or threatened breach of warranties by Seller, and in addition to any other remedies to which Buyer may be entitled under this Agreement or by operation of law, Seller shall, at no additional cost to Buyer and at Buyer’s discretion, replace or modify the Goods and/or re-perform the Services until the warranty is met or provide a full refund.
Seller will maintain commercial general liability insurance in the minimum amount of U.S. $1,000,000 combined single limit for personal injury and property damage. If Seller has employees, Seller will maintain employer's liability in a minimum amount of U.S. $1,000,000 per occurrence and workers' compensation insurance in accordance with law. All such insurance must include a waiver of the insurer's subrogation rights against Buyer, unless prohibited by law.
Seller will defend and indemnify Buyer and its directors, officers, employees, agents and affiliates from and against any and all liabilities, losses, damages, costs and expenses (including without limitation reasonable attorneys’ fees) related to any third party claim, suit, action or proceeding alleging that the Goods, Deliverables and/or Services infringe upon, misappropriate or otherwise violates any third party patent, copyright, trademark, trade secret or other intellectual property right of such party. Seller may not settle or compromise a claim in a manner that does not unconditionally release Buyer (and its directors, officers, employees, agents and affiliates) from liability or that materially alters Buyer’s rights under this Agreement without obtaining Buyer’s prior written consent.
7. LIMITATION OF LIABILITY
a. Limitation of Type of Liability: To the maximum extent permitted by applicable law, in no event shall Buyer be liable to Seller for any consequential, incidental, special or indirect damages of any kind, and regardless of whether Buyer has been notified of the possibility of such damages.
b. Limitation of Amount of Liability: To the maximum extent permitted by applicable law, Buyer’s maximum aggregate liability relating to this Agreement shall not exceed the amounts paid by Buyer to Seller hereunder during the 12 months preceding the event or other basis for such claim.
c. Purpose: Each party agrees that the foregoing limitations of liability are an essential element of the agreement between the parties and that in their absence the economic terms of this agreement would be substantially different.
a. Confidential Information. “Confidential Information” means confidential or other non-public proprietary information whether in graphic, written, electronic or oral form, identified at the time of disclosure as confidential, or which by its context would reasonably be deemed to be confidential, that is disclosed by either party (the “Discloser”) to the other (the “Recipient”) under this Agreement. Confidential Information shall not include information which: (i) is or becomes public knowledge without any action by, or involvement of, the Recipient; (ii) is independently developed by the Recipient without use of the Discloser’s Confidential Information; or (iii) is rightfully received by from a third party without a duty of confidentiality to the Discloser.
b. Restrictions on Use and Disclosure. Except for trade secret information which shall remain subject to all of the confidentiality obligations hereunder until such information ceases to qualify as trade secret information through no fault of Recipient, the parties agree that notwithstanding any termination of the Agreement, for a period of five (5) years from the date of disclosure, the Recipient shall not disclose, transfer or disseminate Confidential Information to any third parties except as expressly permitted in this Agreement. Recipient shall not use Confidential Information of the Discloser for any purpose other than to perform Recipient’s obligations and exercise its rights under this Agreement (the “Purpose”). All Confidential Information (including all copies) shall at all times remain the property of Discloser. Notwithstanding the foregoing, Recipient shall be permitted to disclose Confidential Information of the Discloser to the extent required by a judicial order or other legal proceeding, provided that in such event, Recipient shall promptly notify the Discloser in sufficient time to allow the Discloser to intervene, notify the requesting entity of the confidentiality of the materials, and cooperate with Discloser to contest or minimize the scope of the disclosure (including applying for an appropriate protective order).
c. Return of Confidential Information. Upon any termination or expiration of this agreement, or upon the request of the Discloser, copies of the Discloser’s Confidential Information shall be promptly returned to the Discloser or at the Discloser option, destroyed, unless such copies are required to support existing customers of the products and services of Buyer.
9. DATA SECURITY
Seller agrees that it will keep and maintain all Confidential Information, including personal information, in strict confidence, using such degree of care as it uses to protect its own sensitive information, and in no event less than a commercially reasonable degree of care, to avoid unauthorized access, use, or disclosure; and Seller will use and disclose Confidential Information solely and exclusively for the purposes for which such information, or access to it, is provided by Seller.
Seller shall maintain and enforce commercially reasonable safety and security procedures that are no less rigorous than accepted industry practices to ensure Confidential Information, including personal information, is secured at all times. Seller agrees that its collection, access, use, storage, transmission, disposal, and disclosure of personal information shall comply with federal and state privacy and data security laws.
10. INTELLECTUAL PROPERTY RIGHTS
a. Preexisting Intellectual Property: Each party’s intellectual property existing prior to the date of this Agreement (“Pre-Existing IP”) remains the sole and exclusive property of that party. Seller grants to Buyer a non-exclusive, royalty-free, fully-paid, perpetual, irrevocable, worldwide, non-transferable (except in accordance with Section 14) right and license, with right of sublicense through multiple tiers, under and to Seller’s Pre-Existing IP for the purpose of developing, marketing, selling and supporting products and services of Buyer or its affiliates or subsidiaries.
b. Developed Intellectual Property: Except for any Seller Pre-Existing IP, all rights and interest in and to all ideas, inventions, works of authorship, work product, materials, and other deliverables (i) that Seller conceives, makes, develops or works on in the course of delivering the Goods and Deliverables or providing the Services to Buyer following execution of this Agreement, and (ii) all patent, copyright, trademark, trade secret and other intellectual property rights in any of the foregoing, whether now known or hereafter recognized in any jurisdiction (collectively, “Developed IP”) shall be owned solely by buyer. Seller hereby assigns to Buyer all right, title and interest in and to any such Developed IP. Seller hereby waives any applicable moral rights in the Developed IP.
c. Assistance: Seller agrees to execute all papers, including patent applications, invention assignments and copyright assignments, and otherwise agrees to assist Buyer as reasonably required at Buyer’s reasonable expense to perfect in Buyer the right, title and other interest in the Developed IP expressly granted to Buyer under this Agreement. If Buyer is unable for any reason, after reasonable effort, to secure Seller’s signature on any document needed in connection with the actions specified above, Seller hereby irrevocably designates and appoints Buyer as Seller’s agent and attorney-in-fact, which appointment is coupled with an interest, to act for and, on Seller’s behalf, to execute, verify and file any such documents and to do all other lawfully permitted acts to further the purposes of the preceding paragraph with the same legal force and effect as if executed by Seller.
11. CANCELLATION AND RESCHEDULING
a. Cancellation for Convenience: Buyer may cancel an order for Goods for convenience without incurring any cancellation charges by providing at least 30 days’ notice prior to Seller’s scheduled shipment date. Buyer may also reschedule any PO deliveries for Goods by up to 90 days after Seller’s scheduled shipment date upon written notice to Seller. Buyer may cancel an order for Services or Deliverables for convenience by providing at least 30 days’ prior notice to Seller.
b. Effect of Services or Deliverables Cancellation: Upon any cancellation by Buyer of Services or Deliverables, Buyer will pay for all Deliverables ordered and accepted and Services provided and accepted up to the date of cancellation.
12. GOVERNING LAW
The rights and obligations of the parties under this Agreement shall be governed in all respects by the laws of the State of California without regard to conflict of law principles.
13. FORCE MAJEURE
Neither party shall be liable to the other for any failure or delay in performance of any of the obligations under this Agreement, arising out of the effects of any event or circumstance beyond the reasonable control of such Party (including war, rebellion, civil commotion, terrorist attack; earthquake or other acts of God; or act or order by any government department, council or other constituted body).
Seller may not assign this Agreement or any of its rights or delegate any of its duties under this Agreement to any third party without prior written consent from the Buyer. Buyer may freely assign this Agreement, and Seller expressly agrees that any intellectual property rights licensed to Buyer, including any rights to Seller’s Pre-Existing IP, are transferable to Buyer’s assignee without Seller’s consent. Any purported assignment not in accordance with this Section 14 shall be null and void. The parties’ rights and obligations under this Agreement will bind and inure to the benefit of their respective successors, heirs, executors, administrators and permitted assigns.
15. COMPLIANCE WITH LAWS
In performing its duties under this Agreement, each party shall at all times comply with all applicable international, federal, state and local laws and regulations, including all applicable export control laws. Seller shall maintain all licenses and permits required to provide the Goods, Services and Deliverables. Seller shall notify Buyer immediately if any license or permit terminates or is revoked for any reason.
16. DISPUTE RESOLUTION
Upon notice from an initiating party, the parties will first attempt to resolve any dispute relating to this Agreement through good faith negotiation. Any dispute the parties are unable to resolve between themselves within 30 days of such notice will be submitted to mediation before a mutually agreed mediator of Judicial Arbitration and Mediation Services (JAMS) to be scheduled within 15 business days. Mediation will be conducted at a JAMS facility in Santa Clara County, California. The parties are each responsible for their own costs and fees. Notwithstanding the foregoing, each Party shall have the right to seek injunctive relief in an applicable court of law or equity pending resolution of the dispute in accordance with the foregoing.
17. SEVERABILITY AND SURVIVAL
If any provision of this Agreement is deemed invalid or unenforceable, the remaining provisions will remain in effect. Any obligations that by their nature extend beyond the expiration or cancellation of this Agreement shall survive such expiration or cancellation.
All notices shall be given in writing, and shall be deemed to have been duly given when delivered by hand, posted by registered first class mail (airmail if international) or sent via recognized overnight couriers (e.g., Federal Express) to the party to which such notice is required to be given at the business address stated on the face of the applicable PO or to such other address as such party may have specified to the other in writing. Notices shall be deemed received on the earlier of the following: (i) notices delivered by hand shall be deemed received the first business day following such delivery or sending; and (ii) notices which have been posted or sent via overnight courier shall be deemed received on the second business day following posting (third if international).
19. WAIVER AND AMENDMENT
Failure or neglect by either party to enforce at any time any of the Agreement provisions shall not be construed nor shall be deemed to be a waiver of such party’s rights, nor in any way affect the validity of the whole or any part of this Agreement nor prejudice such party’s rights to take subsequent action. Except as otherwise provided, no addition, amendment to or modification of this Agreement shall be effective unless it is in writing and signed by both parties.
Last modified on June 21, 2016.