Each purchase order (“PO”) issued by SF Motors, Inc. doing business as SERES (“Buyer”) for the sale of equipment, materials or supplies (“Goods”) and/or services (“Services”) is an offer to the supplier identified on the PO (“Supplier”) and is governed by these terms and conditions of purchase and any other documents expressly agreed to in writing and signed by the parties, including but not limited to specifications or quality requirements provided to Supplier by Buyer (collectively “Contract”). Buyer and Supplier will individually be referred to as a “Party” and collectively as “Parties”. Written acceptance or shipment of all or any portion of the Goods, or the performance of all or any portion of the Services, covered by this Contract, will constitute Supplier’s unqualified acceptance of all of this Contract’s terms and conditions. Upon acceptance, the terms of this Contract supersede all prior and contemporaneous negotiation, agreements and other communications between the Parties. The terms contained in quotation, proposal, acknowledgement, invoice or any other documents tendered by Supplier (“Proposal”) will be incorporated to this Contract only to the extent such Proposal specifies or describes the Goods and/or Services procured and only to the extent that the specifications or description do not conflict with the terms of this Contract and the applicable PO. For avoidance of doubt, any additional or different terms contained in the Proposal shall be deemed a material alteration of the Contract terms and are hereby objected to and rejected by Buyer. “Written” or “in writing”, as used in this Contract, include e-mails and facsimiles.
2. Shipment and Delivery
Time is of essence for this Contract. For Goods, Supplier shall comply with shipping date, loading, and routing instructions provided in this Contract and/or in the applicable PO. Responsibilities of shipping are subject to the shipping terms specified and agreed. For Services, Supplier shall comply with the specified completion time.
3. Acceptance and Return
Buyer shall have a reasonable time after receipt of the Goods and Services (collectively, “Deliverables”) and before payment to inspect them for conformity to this Contract. Deliverables received prior to inspection shall not be deemed accepted until Buyer has run adequate tests to determine whether the Deliverables conform to the terms of this Contract. Use of a portion of the Deliverables for the purposes of testing shall not constitute acceptance. If the Deliverables tendered do not conform in any aspect with the specifications provided in this Contract, Buyer, at its option, shall have the right to reject and return the Deliverables or to request Supplier to correct the Deliverables at no extra costs to Buyer. Supplier will bear all risks as to the rejected Deliverables and, in addition to any costs for which Supplier may become liable to Buyer under other provisions of this Contract, Supplier shall be solely responsible for all costs of transportation and other related costs incurred, including but not limited to reimbursing transportation charges paid by Buyer. Failure to inspect the Deliverables shall not relieve Supplier of any warranties expressed or implied, including but not limited to warranty of fitness for the use intended. Buyer’s acceptance of the Deliverables shall not be construed to void Buyer’s rights in the event that latent defects, fraud, or misrepresentation on the part of the Supplier exists.
Buyer may, from time to time, make changes within the general scope of an applicable PO by providing Supplier a written notice detailing the scope of the proposed changes (“Change Order”). If a Change Order causes an increase or decrease in the cost of or time required for performance of the PO, Supplier may (or Buyer may request Supplier to) submit within ten (10) days after receiving the Change Order a written claim, supported by factual information, an estimate of the equitable adjustment resulting from the Change Order. Notwithstanding any pending adjustment claims, Supplier shall diligently proceed with the performance under the Change Order.
Supplier may cancel the PO with at least 15 working days cancellation notice due to shortage of materials, engineering design change, or other rational reason, such cancellation or modification should be promptly discussed with Buyer and agreed by both parties in written.
5. Termination for Convenience
Buyer may cancel or terminate any PO in whole or in part for convenience upon written notice to Supplier. Upon receipt of such notice, Supplier will (a) stop work on the date and to the extent specified in the notice; (b) cancel or terminate purchase orders and subcontracts to the extent they relate to the terminated PO(s); (c) stop issue further purchase orders related to the terminated PO(s); and (d) use commercially reasonable effort to mitigate any additional costs or expenses to Buyer. Supplier shall have thirty (30) days to provide Buyer in writing the claims resulting from such termination. Buyer will have the rights to verify the claims at any reasonable time by inspecting and auditing the records, facilities, work-in-process and materials of Supplier and/or its subcontractor or supplier. Buyer will pay Supplier the contract price for finished Goods or Services accepted by Buyer and any actual costs incurred by Supplier allocable to the terminated PO. Such payment shall constitute Buyer’s only liability for termination hereunder with title and right of possession to all delivered Goods, Services, work in process and raw materials vesting in Buyer immediately upon Buyer’s tender of such payment. Notwithstanding anything to the contrary herein, Buyer shall not be required to pay for any Goods or materials that are in Supplier’s standard stock or that are readily marketable. In no event shall payment made to Supplier under this clause exceed the aggregate price specified in the applicable PO.
6. Termination for Default
Buyer may terminate this Contract or an applicable PO(s) in whole or in part for default if (a) Supplier fails to deliver the Goods or to perform the Services within the time specified in the PO or any extension authorized by Buyer; (b) Supplier fails to make progress so as to endanger performance of Buyer’s PO; (c) Supplier otherwise breaches any of its obligations under this Contract; or (d) Supplier files petition in bankruptcy or is adjudicated a bankrupt or insolvent, or make an assignment for the benefit of creditors or an arrangement pursuant to any bankruptcy law, or discontinues or dissolves its business. Buyer’s may not terminate this Contract and/or the applicable PO under clause 6(a) if (i) such nonperformance or underperformance by Supplier results solely from Buyer’s failure to perform its obligations under this Contract; (ii) Supplier is otherwise in full compliance with all of its obligations under this Contract; and (iii) Supplier provided Buyer with reasonable advance notice specifying the obligations Buyer failed to perform under this Contract. Buyer’s right to terminate this Contract and/or the applicable PO under clause 6(b) and 6(c) herein may be exercised if Supplier does not cure such failure within seven (7) days after receipt of Buyer’s notice specifying such failure. If a PO is terminated pursuant to clause 6(a) – (c), Buyer may acquire Goods or Services similar to those terminated and Supplier shall be liable to Buyer for any excess costs and expenses related to or arising from the terminated PO, whether in whole or in part. The rights and remedies of Buyer under this clause are in addition to any other rights and remedies provided by law or under this Contract.
Supplier agrees that the Deliverables furnished to Buyer under this Contract will be covered by Supplier’s warranties provides to its customer for the same or substantially similar goods or services, whether created expressly by law or in fact (“Supplier Warranties”). If Supplier Warranties are stipulated in the Proposal, such warranties are incorporated herein by reference. In addition, Supplier Warranties shall be supplemented by the following expressed warranties: (a) Supplier warrants that all Deliverables furnished and work provided under this Contract will be free from defects in materials and workmanship for a period of twelve (12) months from Buyer’s acceptance or other period provided under Supplier’s Warranties, whichever is longer; (b) if software is provided as part of the purchase of goods, Supplier warrants that the software it provides to Buyer will be free from manufacturing defects (which shall include any code typically described as a virus, trojan horse, worm, back door or other type of harmful codes) and, when installed in accordance with Supplier’s instruction, would not prevent an equipment or a system from meeting the specification provided in this Contract. Supplier further warrants that the Deliverables furnished hereunder will be (c) suitable for their intended purposes; (d) not infringing upon or violate the intellectual property rights, including without limitation, patent, copyright, trademark, trade secret or other proprietary right, of any third party; and (e) be free and clear of any liens, encumbrances, interest or other rights upon the risk of loss passes from Supplier to Buyer in accordance with the delivery term set forth in the PO or other documentation agreed in writing by the Parties. If Buyer determines the Deliverables or work provided under this Contract breaches the warranties set forth herein, Buyer may, at its sole option, request Supplier to replace or repair the defective Goods and/or reperform any non-conforming Services at Suppliers own costs within a commercially reasonable time mutually agreed in writing by the Parties (“Remedy Period”). If the Goods cannot be repaired or replaced or the Services cannot be reperformed, or if Supplier fails to remedy the defective and/or non-conforming Deliverables within the Remedy Period, Supplier shall refund the amount paid for such defective Goods or nonconforming Services. The rights and remedies of Buyer under this clause are in addition to any other rights and remedies provided by law or under this Contract.
8. Invoice and Payment
Buyer requires receipts and invoices for each payment. Where payment term is not specified in this PO, the standard term is NET30. In no event shall the prices specified in the PO be exceeded unless agreed in writing by both Parties. If Buyer disputes the accuracy of an invoice, Buyer will notify Supplier in writing no later than fifteen (15) days following the date of receipt of such invoice. Buyer may withhold payment of the disputed amount and such withholding will not be considered past due until the conclusion of investigation of the dispute by the Parties.
Supplier will hold all Confidential Information relating to Buyer in confidence during and following termination or expiration of this Contract. Except as otherwise permitted by the terms of this Contract, Supplier will not disclose, duplicate, publish, release, transfer or otherwise make available Confidential Information of Buyer in any form to, or for the use or benefit of, any person or entity without Buyer’s written consent. Supplier will, however, be permitted to disclose relevant aspects of Buyer’s Confidential Information to its affiliates, officers, agents, permitted subcontractors and employees to the extent that such disclosure is necessary for the performance of its duties and obligations under this Contract. The obligations of said affiliates, officers, agents, permitted subcontractors and employees to protect Buyer’s Confidential Information will be, at a minimum, at least as restrictive as the obligations contained herein, and Supplier will be primarily liable to Buyer as a result of any breach of such obligations by any of Supplier’s affiliates, officers, agents, permitted subcontractors or employees. “Confidential Information” means information of Buyer that is subject to patent, copyright, trademark, trade name or service mark protection, or is described as confidential by Buyer, or is not otherwise in the public domain and is related to the business and operations of Buyer, including without limitation, operations, pricing information, proprietary software, policies and procedures, manuals, eligibility data, supplier lists, reimbursement rates, methods, systems, practices or plans of Buyer and all similar information that is known only to persons having a confidential relationship with Buyer; provided, however, that Confidential Information shall not include any information that: (a) Supplier can demonstrate by written records was known to Supplier prior to the effective date of this Contract; (b) is or becomes available to the public other than the result of Supplier’s breach of the terms of this Contract; (c) is obtained lawfully from a third party without breaching the obligation under this clause, or (d) Supplier can demonstrate by written records was independently developed by Supplier without reference to the Confidential Information. If required by a court of competent jurisdiction or an administrative body to disclose Confidential Information, Supplier will promptly notify Buyer in writing and to the extent permitted by law, provide Buyer an opportunity to oppose or otherwise respond to such disclosure before making such disclosure.
10. Compliance with Law
Supplier warrants that the provision of Goods and/or Services, including Goods and Services provided by Supplier’s subcontractors (which shall include Supplier’s affiliates), are in compliance with all applicable federal, state, and local laws, orders, rules, ordinances, and regulations of (a) the United States and (b) other countries of destination relate to the manufacture, labeling, transportation, importation, exportation, licensing, approval or certification of the Goods or Services, including without limitation, those relating to wages, hours and conditions of employment, discrimination, occupational health and safety, international prohibition on child, forced or slave labor, data protection and privacy, transportation of hazardous materials, motor vehicle safety and environmental matters. Supplier covenants that neither it nor its subcontractors will take any action that may render Buyer liable for a violation of the U.S. Foreign Corrupt Practices Act (FCPA). Upon Buyer’s written request, Supplier shall promptly certify in writing its compliance with the foregoing.
Supplier agrees to indemnify, defend and hold Buyer harmless from all claims, liabilities, damages, losses and expenses, including reasonable attorneys’ fees, expert fees and costs of suit arising out of, or in connection with the Goods and/or Services furnished pursuant to this Contract, including but not limited to (a) any claim based on the death or bodily injury to any person, destruction or damage to property, or contamination of the environment, (b) any claim based on the negligence, omissions, or willful misconduct of Supplier, (c) failure of Supplier to satisfy its obligations’ with regard to the protection of confidential information as described in clause 9 above, and (d) Supplier’s breach of any of the warranties or covenants set forth in clauses 7 and 10 under this Contract or as required by law. Buyer retains the right to participate in the defense against any such claim or action, and the right to consent to any settlement, which consent will not be unreasonably withheld.
The rights and remedies under this Contract are cumulative and are in addition to any other rights and remedies available at law or in equity or otherwise.
Supplier will obtain and maintain, at its sole costs and from insurance companies acceptable to Buyer, the following insurance coverage and such other insurance as Buyer may require from time to time in writing. Supplier shall name Buyer or its affiliate as additional insured(s) and upon request, promptly furnish to Buyer the proof of insurance. Nothing in this clause shall be construed as to release Supplier from its obligations or liabilities under this Contract. Minimum required coverage is as follows:
Subject to Buyer’s prior written consent, Supplier may subcontract its obligations under an applicable PO to a third party, provided that (a) Supplier guarantees the subcontractor’s performance; (b) Supplier remains obligated under this Contract for the performance of the subcontracted work, notwithstanding Buyer’s consent to the use of a subcontractor; and (c) Buyer will have no obligation or liability to the subcontractor under this Contract or otherwise and the subcontractor will have no rights or remedies against Buyer under this Contract or otherwise.
Any assignment of Supplier’s obligations under this Contract, in whole or in part, will be void if made without Buyer’s prior written consent.
16. Parties’ Relationship
Supplier is an independent contractor of Buyer. Nothing under this Contract shall be deemed to constitute a partnership or joint venture between the Parties or constitute any Party to be the agent of the other Party for any purpose.
Unless otherwise stated in this Contract or in the PO issued to Supplier, the price shall include all applicable federal, state, provincial and local taxes other than sales, VAT or similar turnover taxes or charges. Supplier will specifically identify and itemize separately in the invoice issued to Buyer any sales, VAT, or similar turnover taxes or charges that Supplier is required by law to pay or collect from Buyer. If Buyer is exempt from sales, VAT or similar turnover taxes or charges, Buyer will provide Supplier valid resale certificate, certificate of exemption or other similar forms.
Buyer’s failure to insist on performance of any of the terms or conditions herein or waiver of any breach hereunder shall not constitute a waiver of any other terms and conditions provided herein.
19. Force Majeure
Nonperformance by either Party of any of its obligations under this Contract, other than the obligation to pay money, will be excused to the extent and only for so long as: (a) such performance is rendered impossible or delayed by actions of or interference by governmental or other regulatory authorities, acts of God (including floods, hurricanes and other acts of nature), act of terrorism, fire, wars, or riots (without nonperforming Party’s negligence or fault) (“Force Majeure Event”); and (b) the nonperforming Party continues to use commercially reasonable effort to resume performance as soon as practical. The nonperforming Party must provide notice to the other Party within seven (7) days after the Force Majeure Event. Upon written request from Buyer, Supplier shall provide within three (3) business days adequate assurance to Buyer that delay caused by the Force Majeure Event will not exceed thirty (30) days. Buyer shall have the right to terminate this Contract without further liability to Supplier if (c) the delay caused by the Force Majeure Event lasts for more than thirty (30) days or (d) Supplier fails to provide adequate assurance to Buyer that the delay will not exceed thirty (30) days. During the period of delay caused by the Force Majeure Event, Buyer shall have the option to cancel applicable PO or any part thereof without further liability to Supplier.
20. Governing Law, Jurisdiction, Jury Waiver
The validity, performance, and construction of this Contract shall be governed by the laws of the state of California and such state shall be the only jurisdiction in which any suit may be brought against Buyer regarding any dispute arising from this transaction. The parties hereby irrevocably submit to the jurisdiction of such courts and waive the application of reasonable attorney’s fee incurred in connection with such litigation. The Parties expressly disclaim the United Nations Convention on Contracts for the International Sale of Good, as amended. The Parties hereby expressly waive any rights to a jury trial regarding any dispute related to this Contract.
If any provision or application of this Contract is held illegal or unenforceable in any respect, such illegality or unenforceability shall not affect other provisions or applications which can be given effect, and this Contract shall be construed as if the illegal or unenforceable provision had never contained herein or prescribed hereby.
Notices must be in writing. All notices and requests to Supplier in connection with this Contract will be deemed given as of the day they are received either by messenger, delivery service, electronic-mail, or in the United States of America mails, postage prepaid, certified or registered, return receipt requested, and addressed to the contact person and address provided in this Contract or the Proposal, or to such other address as the Party to receive the notice or request so designates by written notice to the other.
23. Entire Agreement
This Contract embodies the entire agreement and understanding between the parties hereto and may not be amended unless in writing and signed by both Parties’ authorized representatives.