Intellore Standard Purchase Order Terms and Conditions for Goods and Services
- Acceptance – Order of Precedence – Modification
This Purchase Order is for the purchase of goods, services, or both as described on the face of this document (collectively, “Goods”) and is issued by Intellore’s authorized representative. This Purchase Order is deemed accepted when Supplier returns the acknowledgment copy of this Purchase Order or begins performing, whichever is earlier. Intellore rejects any additional or inconsistent terms and conditions offered by Supplier at any time. Any reference to Supplier’s quotation, bid, or proposal does not imply acceptance of any term, condition, or instruction contained in that document. No course of prior dealing or usage of the trade may modify, supplement, or explain any terms used in this Purchase Order. These terms and conditions together with any previously executed non-disclosure agreement (the obligations of which remain in effect) and with the exhibits, schedules, specifications, drawings, or other documents referred to on the face of the Purchase Order, or attached, or any documents incorporated by reference, supersede any prior or contemporaneous communications, representations, promises, or negotiations, whether oral or written, respecting the subject matter of this Purchase Order. All contract documents related to this Purchase Order are interpreted together as one agreement; provided, however, that in the event of any conflict among the provisions of one or more of such contract documents as are validly in effect at the time of such conflict, the following order of precedence applies: (a) any consignment, stocking or other replenishment agreement; then (b) any supply agreement; then (c) any contract for labor services; then (d) the face of the Purchase Order and any supplemental terms included or incorporated by reference; then (e) these general Purchase Order provisions; and finally (f) other contract documents agreed to in writing by the parties. No change to or modification of this Purchase Order will be binding upon Intellore unless in writing, specifically identifying that it amends this Purchase Order, and signed by an authorized procurement representative of Intellore. If Supplier becomes aware of any ambiguities, issues, or discrepancies between this Purchase Order and any specification, design, or other technical requirement applicable to this Purchase Order, Supplier will immediately submit the matter to Intellore for resolution. No course of dealing, prior dealings, usage of trade or course of performance will be used to modify, supplement or explain any terms used in, or incorporated by reference into, this Purchase Order. - Delivery, Shipment and Packaging
2.1.Supplier will deliver Goods in the quantities and on the date(s) specified on the Purchase Order or Purchase Order schedule releases. If delivery dates are not stated, Supplier will offer its best delivery date(s), which will be subject to acceptance or rejection by Intellore. Unless otherwise directed, all Goods shipped in one day from and to a single location must be consolidated on one bill of lading or air waybill, as appropriate.
2.2.If the delivery schedule is endangered for any reason other than Intellore’s fault then Supplier will, at its expense, deliver Goods by the most expeditious shipping method required to fulfill the Purchase Order delivery requirements. Intellore reserves the right to reject, at no expense to Intellore, all or any part of any delivery that varies from the quantity authorized by Intellore for shipment. Intellore reserves the right to pursue additional remedies caused by late delivery, including but not limited to: (a) incremental freight expenses incurred by Intellore for shipments of Goods to Intellore and for shipments of Goods or finished product containing or incorporating the Goods from Intellore to any customer of Intellore, and (b) all liquidated damages payable by Intellore as a result of any such late delivery. Supplier will not make any substitutions without Intellore’s prior written approval. All items will be packaged according to Intellore’s instructions or, if none, according to good commercial practice in a manner sufficient to ensure receipt in an undamaged condition. Intellore will not be liable for any discharge, spill or other environmental incident or condition (including clean-up costs) involving any Goods shipped under the Purchase Order unless caused by Intellore and in no event until delivery to the destination designated by Intellore. All containers will be properly marked for identification as instructed on Intellore’s Purchase Order and contain a packing slip that details, at a minimum, the Intellore Purchase Order number(s), product part number, detailed product description, country of origin, total number of boxes in shipment, quantity of product shipped, and final delivery address. Items shipped in advance of Intellore’s delivery schedule may be returned at Supplier’s expense. For domestic shipments, if requested by Intellore, and for all international shipments, Supplier will give notice of shipment to Intellore when the Goods are delivered to a carrier for transportation. The Purchase Order number(s) must appear on all correspondence, shipping labels, and shipping documents, including all packing sheets, bills of lading, and air waybills.
2.3. All Goods, unless specifically exempted by the destination country’s governing authorities, must be marked with the country of origin (manufacture) of the Goods in a conspicuous place as legibly, indelibly, and permanently as the nature of the article or container permits.
2.4.Supplier will provide Intellore with (a) the Harmonized Tariff Schedule number, country of origin information or certificates, manufacturer’s affidavits, applicable free trade agreement (“FTA”) certificates, and any other documents or information Intellore may require to comply with international trade regulations or to lawfully minimize duties, taxes, and fees, and (b) FTA certificates for all Goods that qualify under one or more FTAs. Supplier will provide Intellore all documents, records, and other supporting information necessary to substantiate the Goods’ qualification under an FTA. Supplier will exert reasonable efforts to qualify the Goods under FTAs.
2.5.Within one business day after Supplier delivers the Goods to the carrier or at such earlier time as Intellore may request, Supplier will send Intellore a complete set of shipping documents including but not limited to the commercial invoice, packing list, and air waybill, or three original parts of the combined through-bill of lading, clean without notation, necessary to release the Goods to Intellore’s custody. - Notice of Delay.
Supplier must immediately notify Intellore in writing with all relevant information relating to any delay or threatened delay or the timely performance of this PO. - Excusable Delay (Force Majeure)
Neither party will be in default for any delay or failure to perform due to causes beyond its control and without its fault or negligence, but any delay or failure to perform caused by the default of a sub tier supplier of Supplier will be excused only if (a) it is beyond the control of both Supplier and its sub-tier supplier(s) and without the fault or negligence of any of them, and (b) the Goods to be furnished cannot be obtained from other sources in sufficient time to permit Supplier to meet the delivery schedule. Supplier’s ability to sell Goods at a more advantageous price or Supplier’s economic hardship in buying materials or processing necessary for manufacture of the Goods will not constitute an excusable delay event. The party affected by an excusable delay will promptly provide written notice to the other, explaining in detail the full particulars and expected duration of the excusable delay, and will use its best efforts to remedy the delay if it can be remedied. If Supplier’s delivery is delayed, Intellore may cancel deliveries scheduled during the excusable delay period or elect to extend the period of performance to cover the period of delay caused by the excusable delay. If an excusable delay occurs that affects delivery of Goods to Intellore, Supplier will allocate its available supply of Goods in a manner that assures Intellore of at least the same proportion of Supplier’s total output of Goods as was allocated to Intellore before the excusable delay event. If delivery of any Goods is delayed for more than 30 days, Intellore may, without liability, cancel all or any part of this Purchase Order. - Shipping Terms, Title and Risk of Loss
5.1.Unless otherwise specified on the face of the Purchase Order or in a separate signed agreement, the F.O.B. point is Intellore’s designated delivery location. When the F.O.B. point is Supplier’s location, Supplier bears all risk of loss or damage to the Goods and title passes to Intellore upon delivery of the Goods by Supplier to the carrier designated or approved by Intellore. When the F.O.B. point is Intellore’s location, Supplier bears all risk of loss or damage to the Goods and title passes to Intellore upon delivery of the Goods by Supplier at Intellore’s designated delivery location.
5.2.In all other cases, unless otherwise specified on the face of the Purchase Order or in a separate signed agreement, (a) Supplier will deliver the Goods DAP (INCOTERMS 2010) at Intellore’s designated delivery location, and (b) title to Goods passes to Intellore upon receipt at Intellore’s designated delivery location.
5.3. The foregoing does not relieve Supplier of any responsibility for hidden damages discovered after acceptance of the Goods. Notwithstanding the foregoing, title and risk of loss to Goods subject to a consignment, stocking or other replenishment agreement pass upon release of the Goods from consigned inventory or at such other time set forth in such consignment, stocking or other replenishment agreement. Intellore may direct Supplier to ship the Goods to Intellore or to any third party designated by Intellore. - Import/Customs Compliance
Supplier assumes all responsibility and liability for any shipments covered by this Purchase Order requiring any government import clearance. If government authorities declare or otherwise impose countervailing duties, antidumping duties, or retaliatory duties on the Goods imported under this Purchase Order, Intellore reserves the right to terminate this Purchase Order under the Termination provisions of this Purchase Order. Supplier will be debited for any duties, fees, or freight incurred by Intellore due to Supplier’s failure to comply with the terms and conditions of this Purchase Order. - Drawback
To the extent applicable to any shipment of Goods to Intellore or Intellore’s designee, all drawback of duties, and rights thereto, related to duties paid by Supplier or Intellore when the Goods are imported or any materials or components used in manufacturing of the Goods will accrue to the exclusive benefit of Intellore. Duty drawback rights include rights developed by substitution and duty drawback rights obtained from sub-tier suppliers related to the Goods. Supplier will provide Intellore with all documents, records, and other supporting information necessary to obtain any duty drawback, and will reasonably cooperate with Intellore to obtain payment. - Intellore-Supplied Materials, Tooling, Equipment and Technical Data
8.1.Title to any material, components, tooling, equipment, or technical data that Intellore pays for or provides to Supplier or is responsible for providing to Supplier, including replacements (“Intellore Property”), will remain or vest with Intellore. Supplier will conspicuously label Intellore Property as such, maintain it in good condition, keep written records of the Intellore Property in its possession and the location of the property, not allow any liens to be placed upon it, and not change its location without prior written approval from Intellore. Supplier is responsible for inspecting and determining that the Intellore Property is in useable and acceptable condition.
8.2.Supplier will use Intellore Property exclusively to fulfill Intellore Purchase Orders unless otherwise authorized in writing by Intellore’s procurement representative. Intellore Property is intended for use at the Supplier’s site only or as otherwise authorized in writing by Intellore’s procurement representative and, to the extent applicable, is subject to government export or re-export requirements. Supplier is responsible for any loss, damage, or destruction of Intellore Property and any loss, bodily injury, damage or destruction resulting from Supplier’s use of Intellore Property. Supplier will not include the cost of any insurance for Intellore Property in the prices charged under this Purchase Order and, to the extent that any Goods contain any Intellore Property, will not include in the price of any such Good any mark-up or fee with respect to such Intellore Property. Supplier will return Intellore Property or dispose of it as Intellore directs in writing. Intellore makes no representations and disclaims all warranties (express or implied) with respect to Intellore Property. - Price
Supplier will furnish the Goods at the prices stated on the face of the Purchase Order. If prices are not stated on the face of the Purchase Order, Supplier will offer its lowest prices subject to written acceptance by Intellore. Unless otherwise provided on the face of the Purchase Order, the prices include all packaging and freight to the specified delivery point; applicable taxes and other government charges including, but not limited to, all sales, use, or excise taxes; and all customs duties, fees, or charges. To the extent that value added tax (or any equivalent tax) is properly chargeable on the supply to Intellore of any Goods, Intellore will pay the tax as an addition to payments otherwise due Supplier under this Purchase Order, if Supplier provides to Intellore a value-added tax (or equivalent tax) invoice. To the extent Intellore has not received from Supplier all applicable forms regarding compliance with applicable tax law, Intellore reserves the right to deduct from any payment to Supplier pursuant to this Purchase Order those amounts that Intellore, in its sole discretion, deems to be required to be withheld in order to comply with the tax laws of any applicable jurisdiction. Upon the agreement of the parties to reduced pricing for the Goods, such pricing shall immediately apply to all Goods in consignment, stocking or replenishment arrangement with Supplier, all undelivered Goods, all open and unfilled Purchase Orders, all future Purchase Orders and all unconsumed inventory owned by Intellore. - Price: Most Favored Customer and Meet or Release
Supplier warrants that the prices charged for the Goods delivered under this Purchase Order are the lowest prices charged by Supplier for similar goods. If Supplier charges a lower price for similar goods, Supplier must notify Intellore and apply that price to all Goods ordered under this Purchase Order by immediately paying Intellore the price difference and applying the lower price to all Purchase Orders. If at any time before full performance of this Purchase Order Intellore notifies Supplier in writing that Intellore has received a written offer from another supplier for similar goods at a price lower than the price set forth in this Purchase Order, Supplier must immediately meet the lower price for any undelivered Goods. If Supplier fails to meet the lower price, in addition to other rights or remedies, Intellore, at its option, may immediately terminate the balance of the Purchase Order without liability. - Invoicing and Payment
After each shipment made or service provided, Supplier will submit to the address indicated on the Purchase Order an invoice listing a description of the Goods provided and, as applicable, part numbers, quantity, unit of measure, hours, and the unit and total prices. This invoice must match the corresponding Purchase Order pricing, quantities, and terms, and must be sent to the invoice address listed on the Purchase Order. All applicable taxes and other Government charges including, but not limited to, sales, use, or excise taxes; value added tax, customs duties, fees and all incidental charges including but not limited to royalties, selling commissions, nonrecurring engineering, or other incidental charges must be separately itemized and identified on the invoice. The invoice must also include the following information in English, or in the destination country’s official language if required: (a) name and address of Supplier; (b) name of shipper (if different from Supplier); (c) Intellore’s Purchase Order number(s); (d) country of export; (e) detailed description of the Goods; (f) Harmonized Tariff Schedule number; (g) country of origin (manufacture) of the Goods, or if multiple countries of origin, the country of origin of each part shipped; (h) weights of the Goods shipped; (i) currency in which the sale was made; (j) payment terms; (k) shipment terms used; and (l) all rebates or discounts. The invoice will be accompanied (if applicable) by a signed bill of lading or express receipt evidencing shipment. Payment of an invoice does not constitute acceptance of the Goods and is subject to appropriate adjustment should Supplier fail to meet the requirements of the Purchase Order. Payment terms are net 45 days from receipt of a Intellore-approved compliant invoice unless otherwise stated on the face of the Purchase Order or other written agreement executed by both parties; provided, however, that in the event that applicable law requires a payment terms period of shorter duration, payment terms shall be the maximum period allowed by applicable law. Invoices will not be approved unless they accurately reference conforming Goods received by Intellore or services satisfactorily performed for Intellore, as well as a valid Purchase Order number, supplier name and address, line description, quantity at line level, price at line level, withholding rates and/or amounts for applicable taxes. Payment will be scheduled for the next payment cycle following the net terms for the Purchase Order. - Set Off.
Intellore may deduct any amount owing from Supplier to Intellore as a set off against any amount owing to Supplier under this Purchase Order. - Inspection
13.1. All Goods may be inspected and tested by Intellore at all reasonable times and places. If inspection or testing is made on Supplier’s premises, Supplier will provide, without charge, all reasonable facilities and assistance required for the inspection and tests. Supplier’s standard inspection and testing system must be approved by Intellore in writing. All inspection and testing records, including sub-tier supplier records relating to the Goods, will be maintained by Supplier and made available to Intellore during the performance of this Purchase Order, and for such longer periods if specified by Intellore.
13.2. Final inspection and acceptance by Intellore will be at destination unless otherwise specified in this Purchase Order. Intellore may inspect all or a sample of Goods, at its option, and may reject all or any portion of the Goods if Intellore determines them to be defective or nonconforming within 90 days of delivery. If Intellore performs any inspection (other than the standard inspection) after discovering defective or nonconforming Goods, any additional inspection costs will be paid by Supplier. No inspection, tests, approval, design approval, or acceptance of the Goods relieves Supplier from responsibility for warranty or any latent or patent defects, fraud, or negligence. Intellore reserves the absolute right to refuse acceptance of, or reject and return to Supplier at Supplier’s sole cost and expense any material, Goods or Services that fail to conform to any applicable laws or regulations, or for which Supplier fails to package, ship, label or provide proper notice to Intellore as required by any applicable law or regulation. If Goods are defective or nonconforming, Intellore may by written notice to Supplier: (a) rescind this Purchase Order as to the Goods; (b)accept the Goods at an equitable reduction in price; price; or (c) reject the Goods and require the delivery of replacements. Delivery of replacements will be accompanied by a written notice specifying that the Goods are replacements. If Supplier fails to deliver required replacements promptly, Intellore may correct any retained defective or nonconforming Goods at Supplier’s expense; replace them with Goods from another supplier and charge the Supplier the cost thereof, including cover, and any incidental costs; or terminate this Purchase Order for cause. - Warranty
14.1.Supplier warrants to Intellore, its successors, assigns, customers, and end users that during the entire Warranty Period specified below, all Goods furnished (including all replacement or corrected Goods or components and regardless of whether all or any part of such furnished Goods or any replacement or corrected Goods was manufactured, distributed or otherwise commercialized by a third party prior to delivery by or on behalf of Supplier to Intellore) will (a) be free from defects in material, workmanship, and design, even if the design has been approved by Intellore, (b) conform to applicable drawings, designs, quality control plans, specifications and samples and other descriptions furnished or specified by Intellore, (c) be merchantable, (d) be fit for the intended purposes and operate as intended, (e) comply with all laws and regulations, (f) be free and clear of any and all liens or other encumbrances, and (g) not infringe any patent, published patent application, or other intellectual property rights of any third party and not utilize misappropriated third party trade secret information. Goods that fail to meet the preceding standards are collectively called “non-conforming Goods.” Supplier must obtain third party warranties consistent with Section 16 for all raw materials, components, and services required by Supplier to perform under this Agreement (“Components”) and Supplier is solely responsible for ensuring that all Components meet these requirements. Any Component that fails to meet these requirements will be deemed to be a non-conforming Good.
14.2. As to services, in addition to any express or implied warranties, Supplier warrants that (a) it possesses the requisite expertise, facilities and equipment necessary and appropriate to perform the services, (b) the services will be performed in a safe and workmanlike manner, and (c) the services will be performed in accordance with the highest standards in the industry.
14.3. The Warranty Period is 36 months from the date of delivery to the end user or such longer period of time mandated by any longer government requirement covering the Goods. In addition to the warranties described above, Supplier also warrants all Goods to the same extent and for the same time period (if extending beyond 36 months) as the warranties provided by Intellore to Intellore’s customers relating to such Goods. These warranties are for the benefit of Intellore, Intellore’s customers, and any other person claiming by or through Intellore. These warranties will survive any delivery, inspection, acceptance, or payment by Intellore. Claims for breach of warranty do not accrue until discovery of nonconformance, even if the Goods were previously inspected. Any applicable statute of limitations runs from the date of discovery. If conforming Goods are not furnished within the time specified by Intellore then Intellore may, at its election, have the nonconforming Goods repaired, replaced, or corrected at Supplier’s expense or credited to Intellore. Supplier is responsible for the costs of repairing, replacing or correcting nonconforming Goods or crediting them to Intellore, and for all related costs, expenses and damages including, but not limited to, the costs of removal, disassembly, failure analysis, fault isolation, reinstallation, re-inspection, and retrofit of the nonconforming Goods or of Intellore’s affected end-product; all freight charges, including but not limited to incremental freight expenses incurred by Intellore for shipments of repaired, replaced, or corrected Goods to Intellore and for shipments of repaired, replaced, or corrected Goods or finished product containing or incorporating repaired, replaced, or corrected Goods from Intellore to any customer of Intellore; all customer charges; and all corrective action costs. Unless set off by Intellore, Supplier will reimburse Intellore for all such costs upon receipt of Intellore’s invoice. Any replacement Goods are warranted for the same period as the original Goods. Additionally, if any services are found not to be performed as warranted within a period of 36 months after the conclusion of the performance of the services by Supplier, Intellore may direct Supplier to either refund to Intellore the amount paid for the services, or perform the services again in a proper manner to the extent necessary to provide Intellore with the result originally contemplated by Intellore. The warranties and rights provided are cumulative and in addition to any warranty provided by law or equity.
14.4. If, following delivery, Goods exhibit a substantially similar repetitive root cause, failure mode or defect indicating a common or systemic failure (“Epidemic Failure”), then, without prejudice to Intellore’s rights under Section 22: (a) the party discovering the failure will promptly notify the other and Supplier will provide to Intellore a preliminary plan for problem diagnosis within one business day of such notification, which plan Supplier will revise at Intellore’s request; (b) Supplier and Intellore will diagnose the problem, plan an initial work-around and effect a permanent solution; and (d) Supplier is responsible for all costs and damages associated with any Epidemic Failure. Intellore and Supplier will work together in good faith to establish and expeditiously implement an Epidemic Failure action plan. If Supplier or any of its Component suppliers initiate any Product or Component recalls, retrofits, or service bulletins that affect Product quality, Supplier will immediately communicate this information to Intellore.
14.5. No part of any software or other deliverables delivered by Supplier under this Purchase Order shall contain any software or component licensed or obtained under any Open Source licensing program. “Open Source” shall mean any software or other material that is distributed as “free software”, “open source software” or under a similar licensing or distribution model (including but not limited to the GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), and the Apache License) If Supplier uses Open Source in any software or deliverable, Supplier must first seek written approval from Intellore and if approved, Supplier must identify each Open Source item along with the applicable license terms. For any such approved Open Source, Supplier represents that (a) Supplier is in compliance with the terms and conditions of all applicable licenses for Open Source and (b) Intellore’s use of such Open Source (i) will not adversely impact Intellore’s proprietary software (ii) will not require Intellore to make available the source code for any Intellore propriety software (iii) will not prohibit or limit Intellore from charging a fee in connection with sublicensing or distributing the software.
14.6. Goods and Services covered by this Purchase Order will comply with all applicable treaties, laws, regulations of the place of manufacture and Canadian, European Union and U.S. state and federal laws, regulations and standards (a) concerning the importation, sale, design, manufacture, packaging and labeling of its Goods, (b) regulating the sale of Goods, and (c) relating to the environment and/or the toxic or hazardous nature of Goods or their constituents, including (without limitation) the U.S. Toxic Substances Act, the U.S. Occupational Safety and Health Act, the U.S. Hazardous Communication Standard, the Federal Hazardous Substances Act, the California Proposition 65, European ROHS standards, and other current and subsequently applicable requirements; and Supplier agrees that it shall furnish promptly on request and provide all information and certifications evidencing compliance with such laws, regulations, standards and requirements. - Changes
Intellore may, by written or electronic notification, direct changes in the drawings, designs, specifications, method of shipment or packing, quantity, or time or place of delivery of the Goods; reschedule the services; or require additional or diminished services. Only authorized Intellore procurement representatives may issue changes to the Purchase Order. If any change causes an increase or decrease in the cost of, or the time required for, performing this Purchase Order, an equitable adjustment will be made in the Purchase Order price, delivery dates or both, and this Purchase Order will be modified in writing or electronically accordingly. Any claim by Supplier for adjustment under this provision may be deemed to be waived unless asserted in writing (including the amount of the claim) and delivered to Intellore within 30 days from the date of the receipt by Supplier of the Intellore-directed change to the Purchase Order. If the cost of property made obsolete or excess as a result of a change is paid by Intellore, Intellore may prescribe the manner of disposition of the property. Notwithstanding any disagreement between the parties regarding the impact of a change, Supplier will proceed diligently with its performance under this Purchase Order pending resolution of the disagreement. - Design and Process Changes
Supplier will make no changes in the design, materials, manufacturing location, manufacturing equipment, production process, changes between a manual and automated process, or any other processes related to the Goods specified in the Purchase Order or documents referenced in it, or if none, those in place when the Purchase Order is issued, without the advance written approval of Intellore’s procurement representative. This requirement applies whether or not the change affects costs and regardless of the type of change, including product improvements. - Stop Work
At any time by written notice and at no cost, Intellore may require Supplier to stop all or any part of the work under this Purchase Order for up to 120 days (“Stop Work Order”), and for any further period as mutually agreed. Immediately upon receipt of a Stop Work Order, Supplier will comply with its terms. At any time Intellore may, in whole or in part, either cancel the Stop Work Order or terminate the work under the Termination section of this Purchase Order. To the extent, the Stop Work Order is canceled or expires, Supplier must immediately resume work. - Termination
18.1.The non-breaching party may terminate this Purchase Order if the other party commits a material breach and fails to remedy the breach within 10 calendar days following receipt of written notice specifying the grounds for the breach, except in the case of breach related to safety, health, or security, Intellore will have the right to immediately terminate the Order. A material breach includes, but is not limited to, late delivery or delivery of nonconforming Goods. If Supplier breaches its obligations to Intellore and Intellore terminates this Purchase Order in whole or in part, Intellore may charge Supplier for any additional cost it incurs in performing Supplier’s obligations or in having such obligations performed by a third party. The solvent party may terminate this Purchase Order upon written notice if the other party becomes insolvent or if any petition is filed or proceedings commenced by or against that party relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors. If a termination by Intellore for breach by Supplier is determined to have lacked cause, such termination will be treated as a termination without cause under Section 20.2.
18.2.Notwithstanding any firm time period or quantity on the face of the Purchase Order, Intellore may terminate this Purchase Order in whole or in part at any time with or without cause for undelivered Goods or unperformed services upon 10 days’ prior written notice.
18.3. If Intellore terminates this Purchase Order under either 20.1 or 20.2, Intellore’s sole liability to Supplier, and Supplier’s sole and exclusive remedy, is payment for Goods received and accepted by Intellore before the date of termination. The payment can be set off against any damages to Intellore. Upon termination, Intellore may require Supplier to transfer title and deliver to Intellore any completed Goods and Intellore will pay the Purchase Order price for those Goods subject to set off against any damages to Intellore. Intellore may also require Supplier to transfer title and deliver to Intellore any or all property produced or procured by Supplier to perform this Purchase Order. Intellore will credit Supplier with the reasonable value of the property, but not more than Supplier’s actual cost or the Purchase Order value, whichever is less.
18.4. To the extent that any portion of this Purchase Order is not terminated under 20.1 or 20.2 above, Supplier will continue performing that portion. - General Indemnification
Supplier will, at its expense, defend, hold harmless and indemnify Intellore and its customers, subsidiaries, affiliates, and agents, and their respective officers, directors, shareholders, and employees, (collectively “Indemnitees”) from and against any and all loss, cost, damage, claim, demand, penalty or liability, including reasonable attorney and professional fees and costs, and the cost of settlement, compromise, judgment, or verdict incurred by or demanded from the Indemnitee (“Loss”) arising out of, resulting from or occurring in connection with Supplier’s Goods or the performance of the Services by Supplier or its personnel (including any employment-related Loss arising out of, resulting from or occurring in connection with the performance), the acts, omissions, negligence or willful misconduct of Supplier or its personnel, Supplier’s breach of the terms of this Agreement, or any theft or other misappropriation of Intellore’s or its personnel’s information, property or funds by Supplier or its personnel. Supplier will not enter into any settlement or compromise without Intellore’s prior written consent, which will not be unreasonably withheld. If Intellore is obligated to pay any Loss or any damages pursuant to its contract with a customer, then Supplier will be liable for such Loss any damages to the extent Supplier causes or contributes to such Loss or any damages. Furthermore, in the event a recall or other corrective action relating to Supplier’s Goods or Services is necessitated by a defect or a failure to conform to any laws, regulations or specifications, Supplier shall bear all costs and expenses of such recall or other corrective action, including without limitation, costs of notifying customers, customer refunds, cost of returning goods, and other expenses incurred to meet obligations to third parties. Nothing in this Section limits Intellore’s right to claim all actual damages sustained by Intellore as a result of Supplier-caused delays. - Intellectual Property Indemnification
For Goods provided under this Purchase Order, Supplier will, at its expense, defend and indemnify Intellore and its customers (Indemnitee) from and against any and all loss, cost, damage, claim, or liability, including reasonable attorney and professional fees and costs, and the cost of settlement, compromise, judgment, or verdict incurred by or demanded from Indemnitee arising out of, or relating to any alleged or actual: (a) patent, copyright, or trademark infringement; (b) unlawful disclosure, use, or misappropriation of a trade secret; or (c) violation of any other third-party intellectual property right, and from expenses incurred by Indemnitee in defense of such suit, claim, or proceeding if Supplier does not undertake the defense thereof. Supplier will not enter into any settlement without Intellore’s prior written consent, which will not be unreasonably withheld. Indemnitee may participate in the defense or negotiations to protect its interests. If any injunction or restraining order is issued, Supplier will, at Intellore’s option and Supplier’s expense, obtain for Indemnitee either the right to continue using and selling the Goods or replace or modify the Goods to make them non-infringing; without any loss of functionality. - Lien Waivers
Supplier will furnish, upon Intellore’s request, waivers by Supplier and all other persons entitled to assert any lien rights in connection with the performance of this Purchase Order and will indemnify Intellore against all costs, loss or liability incurred by Intellore as a result of any failure by Supplier or any other person to comply with this provision. - Confidentiality; Intellectual Property; Data Protection
22.1. All information, including without limitation specifications, samples, drawings, materials, know-how, designs, processes, and other technical, business, or financial information, that: (a) has been or will be supplied to Supplier by or on behalf of Intellore; or (b) Supplier will design, develop, or create in connection with this Purchase Order; as to individual items or a combination of components or both, and whether or not completed, and all derivatives of (a) and (b) that Supplier has or will design, develop or create are deemed to be “Confidential Information” of Intellore. All Confidential Information is work made for hire and made in the course of services rendered. All rights to it belong exclusively to Intellore, with Intellore having the sole right to obtain, hold, and renew, in its own name or for its own benefit, patents, copyrights, registrations, or other appropriate protection. To the extent that exclusive title or ownership rights in Confidential Information may not originally vest in Intellore, Seller irrevocably assigns transfers and conveys to Intellore all right, title, and interest therein.
22.2. Intellore’s Confidential Information will remain the property of Intellore. It may not be used by Supplier for any purpose other than for performing this Purchase Order, may not be disclosed to any third party, and will be returned to Intellore upon the earlier of Intellore’s written request or completion of the Purchase Order. If, with Intellore’s prior written approval, Supplier furnishes Confidential Information to a sub-tier supplier, Supplier will bind the sub-tier supplier to confidentiality requirements substantially identical to this provision and Supplier will remain responsible to Intellore for any breach of this provision by its sub-tier suppliers. No disclosure, description or other communication of any sort will be made by Supplier to any third person of the fact of Intellore’s purchase of Goods hereunder, the terms of this Purchase Order, the substance of any discussions or negotiations concerning this Purchase Order, or either party’s performance under this Purchase Order.
22.3. “Personal Data” means any information relating to an identified or identifiable natural person; an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity. Supplier will treat any Personal Data of all Intellore officers, directors, employees, agents, contractors, customers, and suppliers as Confidential Information. The Parties agree that the Supplier will be the Data Processor (as defined in the EU Data Protection Directive 95/46/EC or any successor Directive) for the purposes of processing Personal Data pursuant to this Purchase Order. Supplier will: (a) take appropriate technical and organizational security measures as are reasonably required by Intellore to protect Personal Data; (b) use and permit employees and third parties to use Personal Data pursuant to Intellore’s instructions only for purposes directly related to the provision of Goods or performance of services or related obligations under this Purchase Order; (c) refrain from transferring Personal Data out of the European Union unless Intellore has given its prior written consent to the transfer and Supplier has satisfied any further requirements reasonably imposed by Intellore. If with Intellore’s prior permission Supplier will process Personal Data that Intellore transfers from any of its affiliates in the European Union to any of its affiliates in the U.S. pursuant to the U.S. – EU Safe Harbor Framework (“Safe Harbor Personal Data”), Supplier warrants that either Supplier self-certifies to the U.S. – EU Safe Harbor Framework with respect to the processing of the Safe Harbor Personal Data and will notify Intellore immediately if its self-certification terminates for any reason, or Supplier must provide at least the same level of privacy protection as required by the U.S. – EU Safe Harbor Framework; (d) indemnify Intellore against all losses, costs, expenses, damages, liabilities, demands, claims, actions or proceedings which Intellore may suffer or incur arising out of any breach of this Section; and (e) promptly notify Intellore about: any legally binding request for disclosure of Personal Data by a law enforcement agency (unless otherwise prohibited); any accidental or unauthorized processing of Personal Data; and any requests received from individuals to whom Personal Data relates, without responding to that request unless it has been otherwise authorized to do so by Intellore. With the exception of Personal Data, this Agreement imposes no obligation upon Supplier if Supplier can demonstrate that the Confidential Information: (a) was rightfully in Supplier’s possession before receipt from Intellore and was not accompanied by a duty of confidentiality; (b) is or becomes a matter of public knowledge through no fault of Supplier; (c) is rightfully received by Supplier from a third party and is not accompanied by a duty of confidentiality; (d) is disclosed by Intellore to a third party without a duty of confidentiality on the third party; (e) is independently developed by Supplier without use of Intellore’s Confidential Information; or (f) is disclosed under operation of law, provided Supplier notifies Intellore and upon Intellore’s request and at Intellore’s cost cooperates in all reasonable respects to contest the disclosure or obtain a protective order or other remedy. - Audit
23.1.Supplier will maintain detailed records reflecting Supplier’s compliance with this Purchase Order for at least 10 years from the date of last delivery. Supplier will provide, and will cause each of its sub-tier suppliers to provide, access for Intellore’s personnel, auditors, all regulatory authorities and Intellore’s customers to have access at all reasonable times to facilities, books and other pertinent records and any other information as requested by Intellore or Intellore’s auditors. Supplier will require each of its sub-tier suppliers to do likewise with respect to their records and materials. 23.2. If any invoice submitted by Supplier is found to be in error, an appropriate adjustment will be made to the invoice or the next succeeding invoice following the discovery of the error and the resulting payment/credit will be issued promptly. Supplier will, and will cause its sub-tier suppliers to, promptly correct any other Supplier deficiencies discovered as a result of the audit. - Limitation of Liability
INTELLORE IS NOT LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING ANY DAMAGES FROM BUSINESS INTERRUPTION, LOSS OF PROFITS OR REVENUE, COST OF CAPITAL, OR LOSS OF USE OF ANY PROPERTY OR CAPITAL) EVEN IF ADVISED, OR OTHERWISE AWARE, OF THE POSSIBILITY OF ANY SUCH DAMAGES. THE EXCLUSION OF SUCH DAMAGES IS INDEPENDENT OF, AND WILL SURVIVE, ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY UNDER THESE TERMS AND CONDITIONS. - Assignment and Subcontracting
This Purchase Order will be binding on the parties and their respective permitted successors and assigns. Supplier will not assign this Purchase Order or any rights or obligations under this Purchase Order or subcontract the manufacture of the Goods or performance of any related services without the prior written approval of Intellore. Any transfer of this Purchase Order by Supplier by merger, consolidation, or dissolution, or any change in ownership or power to vote a controlling share of the voting stock in Supplier, will constitute an assignment for the purpose of this Agreement. Any assignment or subcontract without Intellore’s written approval will be voidable at the option of Intellore. Intellore may assign this Purchase Order or any rights or obligations under this Purchase Order to any of its subsidiaries or affiliates or to any purchaser or successor to all or substantially all of the assets of Intellore without Supplier’s consent and upon written notice to Supplier. To the extent, Supplier assigns or subcontracts all or part of the manufacture of the Goods or performance of any related services as permitted under this Purchase Order, Supplier will be responsible for its assignees and subcontractors (including but not limited to its affiliates) and their personnel to the same extent as if the acts or omissions were performed by Supplier and its employees, agents and personnel. - Relationship of Parties/Independent Contractor Nothing in this Purchase Order will be construed to place Supplier and Intellore in an agency, employment, franchise, joint venture, or partnership relationship. Neither party has the authority to obligate or bind the other in any manner, and nothing contained in this Purchase Order will give rise or is intended to give rise to rights of any kind to any third parties. Neither party will make any representation to the contrary. The parties agree that Supplier will perform its obligations under this Purchase Order as an independent contractor. Supplier will be solely responsible for all Employer Obligations with respect to Supplier personnel, even if a court or other body deems the personnel to be Intellore employees. “Employer Obligations” means all obligations of any kind imposed customarily or by law or agreement on persons acting in the capacity of an employer, including, without limitation, responsibility for (a) hiring, assigning, compensating, and terminating personnel; (b) withholding and paying taxes; (c) verification of employment eligibility, including compliance with work authorization and immigration laws and export licensing and control requirements; (d) compliance with all federal, state, and local laws (both common and statutory) and regulations related to employment and the rights of personnel. Supplier represents and warrants that it and all its subcontractors, if any, comply and will continue to comply with all applicable employment laws and regulations related to personnel working on Intellore matters, that all personnel working on Intellore matters are authorized to work in the relevant jurisdiction, and that it does not employ child or forced labor.
- Compliance with Laws and Integrity
27.1. Upon request, in form and substance satisfactory to enable Intellore to meet its compliance obligations with regard to Regulation (EC) No 1907/2006 (“REACH”), Supplier will provide Intellore with complete information regarding the chemical composition of any Goods supplied under this Purchase Order, including all safety information required under REACH and information regarding the registration or pre-registration status of any Deliverables pursuant to REACH promptly but no later than 30 days of receiving such request. Supplier agrees that it will include any Intellore “Identified Use” in its REACH registrations or applications for authorization, unless Supplier notifies Intellore that it rejects the Identified Use in order to protect human health or the environment and specifies the reason for the rejection. In this case Intellore will have the right to terminate this Purchase Order without incurring any damages.
27.2. Absent Intellore’s prior written consent, no Goods will contain any of the substances identified in (a) Article 4(1) of the European Parliament Directive 2011/65/EU (the “RoHS Directive”) as the RoHS Directive may be updated from time to time and as such Directive is implemented in any country, but only to the extent that the Directive applies to the commercialization, sale or use of such Goods, or (b) similar applicable laws or regulations, (including, without limitation, the United States Department of Transportation and California Proposition 65), restricting the use of hazardous materials in such other jurisdictions to the extent that any such law or regulation applies to the commercialization, sale or use of such Goods. If such prior written consent is given, then Supplier shall inform Intellore in writing of same, and properly warn, label, package and ship such hazardous materials in accordance with all applicable laws and regulations. Further, prior to shipment and upon request, Supplier shall identify and provide to Intellore compliant material safety data sheet information and RoHS Directive information for covered Goods.
27.3. Goods will comply with the restrictions set forth in the Montreal Protocol on ozone-depleting substances.
27.4. Supplier will be responsible for all costs and liabilities for or relating to the recycling of Goods pursuant to the most current version of European Parliament Directive 2012/19/EU (the “WEEE Directive”) as the WEEE Directive may be updated from time to time and as such Directive is implemented in any country.
27.5. In accordance with applicable “Conflict Minerals” laws, Intellore must determine whether its products contain tin, tantalum, tungsten or gold (“3TG”) originating in the Democratic Republic of the Congo and adjoining countries (“Conflict Minerals”). To the extent, Supplier supplies Goods containing 3TG to Intellore under any Purchase Order, Supplier commits to have a supply chain process to ensure and document a reasonable inquiry into the country of origin of the 3TG minerals incorporated into such Goods. If requested, Supplier will promptly provide information or representations that Intellore reasonably believes are required to meet its conflict minerals compliance obligations. - Remedies
All Intellore remedies set forth in this Purchase Order are in addition to, and will in no way limit, any other rights and remedies that may be available to Intellore at law or in equity. - Notices
Notices relating to this Purchase Order must be in writing and may be delivered personally, by overnight courier, or by certified first class mail, postage prepaid (each to the respective addresses appearing on the face of this Purchase Order; or sent by fax to the respective fax number provided by Intellore or Supplier. Notice will be deemed given on the date delivered if delivered personally; three business days after being placed in the mail as specified above; or upon confirmation receipt that it was transmitted satisfactorily if transmitted by fax. - Publicity
Any news release, public announcement, advertisement, publicity or any other disclosure concerning this Purchase Order to any third party except as may be necessary to comply with other obligations stated in this Purchase Order requires prior written approval of Intellore. Supplier will not use Intellore’s name or marks or refer to or identify Intellore in any advertising or publicity releases or promotional or marketing materials without Intellore’s prior written approval. Furthermore, Supplier will not claim or suggest, implicitly or explicitly, that Intellore’s purchase of its Goods use of its services or deliverables constitutes Intellore’s endorsement of its Goods, services or deliverables. - Headings and Captions
Headings and captions are for convenience of reference only and do not alter the meaning or interpretation of any provision of this Purchase Order. - Waiver
The failure or delay of either party to enforce at any time any of the provisions of this Purchase Order will not be construed to be a continuing waiver of those provisions, nor will any such failure or delay prejudice the right of the party to take any action in the future to enforce any provision. - Severability
If any provision of this Purchase Order (or portion thereof) is held to be illegal, invalid, or unenforceable by a court of competent jurisdiction, the parties agree that the court will construe the provision in a manner that renders the provision valid and enforceable to the fullest extent possible under the law of the applicable jurisdiction and that the remaining provisions will remain in full force and effect. - Survival
All provisions of this Purchase Order which by their nature should apply beyond its term will remain in force after any termination or expiration of this Purchase Order including, but not limited to, those addressing the following subjects: Import/Customs Compliance, Drawback, Offset, Intellore-Supplied Materials, Tooling, Equipment and Technical Data, Price, Price: Most Favored Customer and Meet or Release, Invoicing and Payment, Set Off, Warranty, Cessation of Production, General Indemnification, Intellectual Property Indemnification, Insurance, Lien Waivers; Confidentiality/Data Privacy and Intellectual Property, Audit, Relationship Between the Parties/Independent Contractor, Applicable Law and Forum, Publicity, Waiver, and Survival.