1. PURCHASE ORDER TERMS AND CONDITIONS. These terms and conditions (“Terms”) and a Joyent, Inc. (“Joyent”) issued purchase order (“PO”) together with any attachments incorporated therein (collectively, the “Agreement”), govern the purchase and sale of goods specified in the PO (“Goods”) or services specified in the PO (“Services”) (Goods and Services collectively constituting “Deliverables”) by Joyent. The PO constitutes the entire agreement between Joyent and the person or entity named on the PO (“Seller”) as to the Deliverables described therein and supersedes all prior understandings or agreements, oral or written, with respect to their subject matter, except that if another written agreement governing the purchase of such Deliverables exists as between Joyent and the Seller (“Existing Agreement”), then the terms of such Existing Agreement will prevail over any inconsistent terms herein. Seller’s agreement to comply with these Terms is a condition of doing business with Joyent, and Seller’s acceptance of any PO of Joyent, or commencement of performance or undertaking of any obligation to Joyent shall be deemed an acceptance of these Terms and the Agreement. Joyent hereby reserves the right to reschedule any delivery or cancel any PO issued at any time prior to commencement of any Services or shipment of any Goods. Joyent shall not be subject to any fees or other charges incurred by Seller as a consequence of such cancellation.
2. DELIVERY. Time and quantity is of the essence. Delivery of the goods shall be made pursuant to Joyent’s delivery schedule and to the place and through the carrier as specified in the applicable PO. If Seller does not comply with Joyent’s delivery schedule, Joyent, at its option, may, in addition to any other right or remedy available to it, terminate this order, in whole or in part without any further liability to Seller. Seller represents and warrants that the Goods will be adequately contained, packaged and labeled, and will be suitably packed to assure safe transit and the lowest transportation and insurance rates. Title and risk of loss shall pass to Joyent upon completion of Joyent’s inspection & Joyent’s acceptance of the Goods. Joyent reserves the right to return at Seller’s expense Goods received in advance of the delivery date or in excess of the quantity ordered.
3. PRICE & PAYMENT. The prices for the Deliverables hereunder shall be listed on the PO. Seller warrants that the prices for the Deliverables are not less favorable than those currently extended to any other customer of Seller for the same or like goods in equal or lesser quantities. The prices shall include any applicable federal, state and local taxes, and taxes must be shown separately on Seller’s invoice. Joyent will not be liable for any sales, use, excise, value added, ad valorem or other taxes unless otherwise specified in the Agreement.
If any price is omitted in this order, the Deliverables shall be billed at the price last quoted or paid by Joyent for such Deliverables, or the prevailing market price, whichever is lower. In no event shall the prices specified in this order be exceeded. Additional charges under this order will not be permitted except on specific written agreement by a Joyent authorized representative. No allowances will be made for packing, crating or cartage charges, unless specifically authorized in writing by Joyent. Joyent’s count will be final on all shipments not accompanied by a complete packing list. Unless specified otherwise on the face of a PO, Joyent shall pay the invoiced amounts within thirty (30) days after receipt by Joyent of a correct and undisputed invoice. Joyent may at all times set off any amount owing at any time from Seller to Joyent against the amount payable by Joyent to Seller. Payment shall not constitute acceptance of the Goods or Services.
4. INSPECTION. All Goods shall be the best of their respective kind and shall be subject to Joyent’s inspection, at any reasonable time, before or during manufacture, and after delivery to destination. Use by Joyent of a portion of the Goods for purposes of testing their conformity with the specifications shall not constitute acceptance of the Goods. Goods other than those specified shall not be supplied without Joyent’s prior written approval. Without prejudice to any of its other rights and remedies, non-conforming Goods may be returned by Joyent, at Seller’s expense, including all transportation charges. Joyent shall not be required to accept replacements without its prior written consent.
5. CHANGES. Joyent reserves the right to make changes at any time to this order. In the event Joyent elects to make any changes in material, quality, quantities, drawings, specifications or methods of shipment or destination that cause an increase in the cost or time required for delivery, an equitable adjustment may be made to the price or delivery schedule, Seller must request any such adjustments within ten (10) days from Joyent’s notification of such change.
6. WARRANTIES. In addition to any implied warranties, Seller represents and warrants that: (i) all Services shall be completed in a professional, workmanlike quality and/or performed in a manner consistent with generally accepted prevailing industry standards; (ii) the Services shall be completed in conformity with the applicable specifications; (ii) the Goods are free from defects in design, workmanship and material, are of merchantable quality, conform to the order and applicable specifications, drawings and samples, if any, free and clear of all liens, security interests or other encumbrances, and are fit and sufficient for the intended uses specified by Joyent or otherwise known to Seller; (iv) the Goods and materials (except for any trademarks or other intellectual property of Joyent) and the use thereof do not infringe any patent, trademark, copyright, trade secret, or other intellectual property right of any third parties; (v) the Goods, including their advertising, labeling, packaging, manufacture, delivery, use and sale, conform to all applicable laws and regulations and/or requirements; and (vi) Seller’s performance under this Agreement does not require the breach of any agreement with any other party by Seller, and does not conflict with or is otherwise prohibited by any other agreement or statutory restriction under which Seller is bound. All warranties of Seller shall inure to the benefit of Joyent, its successors, assigns and customers and shall survive any inspection or testing by Joyent and any payment to Seller. If the event of any breach of any warranty, Joyent, in addition to all its other rights and remedies, may, at its option, either return the Goods for credit or refund, at Seller’s expense, or require prompt correction or replacement of the non-conforming Goods. Acceptance of any replacement Goods shall not relieve Seller of liability for damages for breach.
7. CONFIDENTIAL INFORMATION. Seller agrees that all information, data, material is obtains from Joyent in connection with its performance under this Agreement will be “Confidential Information” and shall remain the property of Joyent. Confidential Information includes but is not limited to, all information disclosed in writing or other tangible form and that is plainly marked as confidential or “proprietary” or other similar wording, including, without limitation, all customer data and information, trade secrets, patents, specifications, know-how, designs, drawings, sketches, models, notes, documents, samples, reports, plans, forecasts, methods of doing business, current or historical data, computer software and programs, codes, other information which by its nature would be considered confidential or proprietary, and all other technical, financial or business information all or other confidential or proprietary information supplied or communicated by Joyent and such information, and any information derived therefrom, shall be regarded by Seller as confidential and shall not, without the prior written consent of Joyent, be disclosed to any third party, or used by Seller, except to the extent authorized by Joyent in connection with the performance of this order by Seller. No license, express or implied, in the Confidential Information is granted to Seller other than to use the information in the manner and to the extent authorized herein. Confidential Information shall not any include information that: (i) is or (through no fault of Seller) becomes publicly available; (ii) was rightfully received on a non-confidential basis from a third party having a lawful right to disclose such information; (iii) Seller knew of without restriction before receipt from Joyent; and (iv) Seller independently develops without reference to or use of any Confidential Information. Seller shall use at least the same degree of care to safeguard and to prevent disclosure to third parties of Confidential Information as it employs to safeguard its own information of a similar nature, but in no event less than reasonable care. Upon the termination of this Agreement, or Joyent’s written request, Seller shall either shall either promptly return or promptly destroy all Confidential Information and shall keep confidential all Confidential Information. The provisions of this Section shall survive termination of this Agreement.
8. FORCE MAJEURE. Neither Joyent nor Seller shall be liable to the other for default or delay in performing its obligations, if caused by an event beyond its reasonable control, provided that the affected party gives prompt written notice of any such inability to perform to the other party. If necessitated in Joyent’s opinion by any such event, Joyent shall have the option, exercisable by written notice to Seller, to extend the shipping date until a reasonable time after the removal of the cause of such delay, or to cancel this order.
9. NOTICES. All notices hereunder shall be in writing and shall be deemed duly given if personally delivered or mailed (by certified or registered mail, or reputable courier service) to the party concerned at its address set forth in this order (or as subsequently changed in a notice given in accordance herewith).
10. OWNERSHIP. All rights, title and interest worldwide in and to all Service deliverables or portions thereof developed as a result of the Services provided under this Agreement, and work product and all proprietary rights in any form and of any type or description whatsoever which result from the Services performed hereunder are, from the moment of inception or creation, hereby assigned and transferred by Seller exclusively to Joyent (and the successors, licensees, affiliates and assigns of Joyent), including, without limitation, all copyrights, trademarks, patent applications, patents, licensing rights, trade secret rights, and all related claims and causes of action, whether now known or hereafter arising. Seller shall retain ownership of all intellectual property rights in standard Goods that are not designed, customized or modified by Seller at Joyent’s request. All Service deliverables and such work product and proprietary rights shall be the property of Joyent and shall not be used by Seller except in furtherance of this Agreement. Seller hereby agrees to irrevocably assign and transfer to Joyent a nonexclusive, worldwide, royalty free, irrevocable, perpetual, assignable, sublicensable license to all third party intellectual property rights delivered with, incorporated into, or necessary to use the Service deliverables as contemplated by this Agreement.
11. INDEMNIFICATION. Seller will indemnify, defend and hold Joyent, its parents, subsidiaries, affiliates, successors or assigns, their respective directors, officers, shareholders and employees and Joyent’s customers harmless from and against any and all claims, demands, losses, liabilities, suits, causes of action, legal proceedings, damages, costs, and expenses (including reasonable attorney’s fees), arising out of or related to: (i) any patent, trademark, copyright, trade secret or other intellectual property infringement claim relating to the names, Goods, materials, or packaging, supplied by Seller; (ii) any breach of any provision of this Agreement by Seller or of any representation or warranty made by Seller herein; or (iii) any injuries to or the death of any person(s), including employees of Joyent or Seller, or the loss of or damage to the property of any person(s), caused by or resulting from the negligence of Seller or any of its employees, or from improper or defective Goods or materials, except that Seller shall not be liable for any such claims resulting from the sole negligence of Joyent . Such indemnification obligations shall survive termination or expiration of this Agreement. Joyent may participate in such defense to such extent as Joyent in its discretion may determine. Seller may not settle any such claim without Joyent’s prior written approval.
12. LIMITATION OF LIABILITY. EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS, ANY DAMAGES RESULTING FROM ANY BREACH OF EITHER PARTY’S CONFIDENTIALITY OBLIGATIONS HEREIN, ANY DAMAGES RESULTING FROM A PARTY’S FRAUD, WILLFUL ACTS, INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE, AND/OR ANY DAMAGES RESULTING FROM PERSONAL INJURY OR PROPERTY DAMAGE, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, FOR SUCH DAMAGES ARISING FROM OR RELATED TO LOSS OF OR DAMAGE TO DATA OR PROGRAMMING, LOSS OF REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS OR OTHER BENEFITS, DAMAGE TO EQUIPMENT, EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR THE PARTIES’ INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREUNDER, EACH PARTY’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT ACTUALLY PAID OR PAYABLE BY JOYENT TO SUPPLIER UNDER THIS AGREEMENT.
13. COMPLIANCE WITH LAWS. Seller represents and warrants that it will comply, and will ensure that its subcontractors comply, with all applicable laws, rules, regulations, or other requirements of governmental authorities applicable to the manufacture and sale of the Goods. Seller agrees that no Goods will be (i) manufactured, assembled, or packaged by forced, prison, or child (defined as age 14 or the minimum working age within the applicable jurisdiction, whichever is older) labor, or (ii) transshipped for the purpose of mislabeling, evading quota or country or origin restrictions, avoiding paying higher duties, or otherwise avoiding compliance with relevant laws. All Goods shall be accurately marked or labeled with its country of origin. Seller’s commercial invoice shall accurately describe all Goods and quantity contained in the shipment, identify the country of origin of each article in the shipment, and shall list all payments, direct or indirect, to be made for the Goods, including, but not limited to, any assists or selling commissions. To the extent required by applicable laws, rules or regulations, Seller will provide Joyent material safety data sheets on all of the Goods.
14. NO CORRUPTION. Seller represents, warrants and covenants that it is fully aware of and will comply with, and in the performance of its obligations to Joyent will not take any action or omit to take any action that would cause either party to be in violation of, (i) U.S. Foreign Corrupt Practices Act, U.K. Anti-Bribery Act, or the India Prevention of Corruption Act of 1988, or, (ii) any other applicable anti-corruption laws, or (iii) any regulations promulgated under any such laws. Seller represents, warrants and covenants that neither it nor any of Seller’s employees or agents is an official or employee of any government (or any department, agency or instrumentality of any government), political party, state owned enterprise or a public international organization such as the United Nations, or a representative or any such person (each, an “Official”). Seller further represents, warrants and covenants that, to its knowledge, neither it nor any of its employees has offered, promised, made or authorized to be made, or provided any contribution, thing of value or gift, or any other type of payment to, or for the private use of, directly or indirectly, any Official for the purpose of influencing or inducing any act or decision of the Official to secure an improper advantage in connection with, or in any way relating to, (i) any government authorization or approval involving Samsung, or (ii) the obtaining or retention of business by Samsung. Seller further represents, warrants and covenants that it will not in the future offer, promise, make or otherwise allow to be made or provide any such payment and that it will take all lawful and necessary actions to ensure that no such payment is promised, made or provided in the future by any employee of Seller.
15. INSURANCE. Seller shall be solely responsible for maintaining and securing adequate insurance providing coverage against general liability, auto, bodily injury (personal injury), damage to property and other insurance as is required by law or otherwise customarily required in Seller’s industry, in amounts sufficient to protect Joyent in the event of such injury or damage in Joyent’s sole determination. Seller will also maintain workers compensation insurance as required by law in the state where Services will be provided, including employer’s liability coverage. Seller shall provide Joyent with certificates of insurance or evidence of coverage upon Joyent’s request, naming Joyent as an additional insured.
16. AUDIT. Seller shall keep and maintain complete and accurate books and records in connection with its performance under this Agreement. Joyent shall have the right to examine and audit those books and records that are necessary for Joyent to verify Seller’s compliance with this Agreement.
17. CUSTOMS/SECURITY. Seller agrees to provide timely all documents and information required for Customs clearance including without limitation all information required under the Importer Security Filing Rule and shall ensure that all such documents and information are accurate and complete. Seller understands that any late, incomplete or inaccurate documents (including, but not limited to, invoices, packing lists and Interim Footwear Invoices, if required) may affect payment to Seller for the Goods shipped. Seller agrees to be responsible to Joyent for any fines, penalties or other monetary assessments that Joyent incurs as a result of any late, inaccurate or missing or incomplete information or document provided by Seller. Seller shall provide adequate security for the Goods and shall maintain a documented program of security procedures throughout production and delivery consistent with the Customs-Trade Partnership Against Terrorism (C-TPAT) minimum security criteria guidelines, and shall require the same of its subcontractors. Seller shall seal any containers bound for the U.S. with a high security seal that meets PAS/ISO 17712 standards, and the seal number must be specified on the shipping documents. Joyent or a third party designated by Joyent may conduct announced or unannounced on-site inspections of Seller’s facilities to monitor compliance with these terms and conditions. If Joyent is entitled to apply for duty drawback for the Goods, Seller will provide Joyent the necessary information and documentation.
18. TERMINATION. Where Seller is in breach of this Agreement or any other contract with Joyent, or in the event of Seller’s bankruptcy, insolvency, liquidation, appointment of receiver (or analogous occurrence), without prejudice to its other rights and remedies, Joyent shall have the right to cancel this order, in whole or in part, without liability or further obligation. Joyent may also terminate this order at any time for convenience, in whole or part upon written notice. Seller shall cease to perform Services and/or provide Goods under this Agreement on the date of termination specified in such notice. If an order is terminated for convenience and Seller is in full compliance with this agreement, any claim by Seller (which must be made within 10 days of receipt of notice of termination) will be settled based on Seller’s reasonable costs incurred up until the effective termination date in performance of the order. Upon the expiration or termination of this Agreement for any reason, each party will be released from all obligations to the other arising after the date of such expiration or termination, except for those obligations which by their terms survive such expiration or termination.
19. GOVERNING LAW/JURISDICTION. The laws of the State of New York, without regard to its conflicts of law principles, govern all matters arising under or relating to this Agreement. All trade terms used herein shall be interpreted in accordance with the latest Incoterms. The U.N. Convention on Contracts for the International Sale of Goods shall not apply to this order. Any disputes arising out of or relating to this Agreement shall be exclusively filed and resolved in the appropriate state or federal court in New York County, New York. The parties hereto consent to the exclusive venue and jurisdiction of such courts and waive any claims of improper venue or forum non conveniens. Both parties hereto waive their right to trial by jury in connection with any proceedings arising out of the Agreement.
20. PUBLICITY/ADVERTISING. Seller shall not advertise, promote or otherwise publicize matters relating to this Agreement, including the existence of any relationship between the parties hereunder, without the prior written consent of the other party. Seller shall not use any trade name, trademark, service mark, insignia, symbol or other identification of Joyent, without Joyent’s prior written consent in each instance.
21. MISCELLANEOUS. Any assignment or subcontracting of rights or delegation or performance of this Agreement without the prior written consent of Joyent shall be void. In the event any one or more of the provisions of this Agreement shall be held to be void, illegal or unenforceable in any respect, such voidance, illegality or unenforceability shall not affect any other provisions hereof. The rights and remedies set forth herein are not exclusive and are in addition to any other rights and remedies available. No failure or delay in exercising any right or remedy under this Agreement operates as a waiver or estoppel of any right, remedy or condition. The headings in this Agreement are for convenience only and do not affect this Agreement’s construction or interpretation. No modification or waiver of this Agreement shall bind either party unless signed by its authorized representative. This is a non-exclusive Agreement, and nothing herein is intended as limiting Joyent’s ability to engage others to procure the same or similar Goods or Services from others.