(a) This purchase order is an offer by Canary, LLC (“Canary”) for the purchase of the goods or products (“Products”) and services provided by Supplier (“Services”) specified on the face of this purchase order from the party to whom the purchase order is addressed (the “Supplier”) in accordance with and subject to these terms and conditions (the “Terms”; together with the terms and conditions on the face of the purchase order, the “Order”). This Order, together with any documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the Order, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the Order. The Order expressly limits Supplier’s acceptance to the terms of the Order. These Terms prevail over any terms or conditions contained in any other documentation and expressly exclude any of Supplier’s general terms and conditions of sale or any other document issued by Supplier in connection with this Order.
(b) Canary is not obligated to any minimum purchase or future purchase obligations under this Order.
2. ACCEPTANCE. This Order is not binding on Canary until Supplier accepts the Order in writing or starts to perform in accordance with the Order. Canary may withdraw the Order at any time before it is accepted by Supplier.
3. DELIVERY OF PRODUCTS AND PERFORMANCE OF SERVICES.
(a) Product Shipping. Delivery will be made in accordance with the terms on the face of this Order. Supplier will give written notice of shipment to Canary when the Products are delivered to a carrier for transportation. Supplier will provide Canary all shipping documents, including the commercial invoice, packing list, and any other documents necessary to release the Products to Canary within two (2) business days after Supplier delivers the Products to the transportation carrier. The Order number must appear on all shipping documents, shipping labels, invoices, correspondence, and any other documents pertaining to the Order.
(b) Title and Risk of Loss. Title passes to Canary upon delivery of the Products to the Delivery Location. Supplier bears all risk of loss or damage to the Products until delivery of the Products to the Delivery Location.
(c) Delivery Date. Supplier will deliver the Products in the quantities and on the date(s) specified in this Order or as otherwise agreed in writing by the parties (the “Delivery Date”). Timely delivery of the Products is of the essence. If Supplier fails to deliver the Products in full on the Delivery Date, Canary may terminate the Order immediately by providing written notice to Supplier and Supplier will indemnify Canary against any losses, claims, damages, and reasonable costs and expenses directly attributable to Supplier’s failure to deliver the Products on the Delivery Date.
(d) Quantity. If Supplier delivers more than 5% or less than the quantity of Products ordered, Canary may reject all or any excess Products. Any such rejected Products will be returned to Supplier at Supplier’s risk and expense. If Canary does not reject the Products and instead accepts the delivery of Products at the increased or reduced quantity, the Price for the Products will be adjusted on a pro-rata basis.
(e) Delivery Location. All Products will be delivered to the address specified in this Order (the “Delivery Location”) during Canary’s normal business hours or as otherwise instructed by Canary.
(f) Product Packaging. All Products will be packed for shipment according to Canary’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Products are delivered in undamaged condition. Supplier must provide Canary prior written notice if it requires Canary to return any packaging material. Any return of such packaging material will be made at Supplier’s expense.
4. INSPECTION AND REJECTION OF NONCONFORMING PRODUCTS.
(a) Inspection and Acceptance. Canary has the right to inspect the Products on or after the Delivery Date. Canary, at its sole option, may inspect all or a sample of the Products, and may reject all or any portion of the Products if it determines the Products are nonconforming or defective.
(b) Rejected Product. If Canary rejects any portion of the Products, Canary has the right, effective upon written notice to Supplier, to: (i) rescind the Order in its entirety; (ii) accept the Products at a reasonably reduced price; or (iii) reject the Products and require replacement of the rejected Products. If Canary requires replacement of the Products, Supplier will, at its expense, promptly replace the nonconforming Products and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective Products and the delivery of replacement Products. If Supplier fails to timely deliver replacement Products, Canary may replace them with Products from a third party and charge Supplier the cost thereof and terminate this Order for cause pursuant to Section 12 (Termination). Any inspection or other action by Canary under this Section will not reduce or otherwise affect Supplier’s obligations under the Order, and Canary will have the right to conduct further inspections after Supplier has carried out its remedial actions.
5. PRICE; PAYMENT TERMS.
(a) Price. The price of the Products and Services is the price stated in the Order (the “Price”). If no price is included in the Order, the Price will be the price set out in Supplier’s published price list in force as of the date of the Order. Unless otherwise specified in the Order, the Price includes all packaging, transportation costs to the Delivery Location, insurance, customs duties and fees and applicable taxes, including, but not limited to, all sales, use or excise taxes. No increase in the Price is effective, whether due to increased material, labor, or transportation costs or otherwise, without the prior written consent of Canary.
(b) Payment Terms. Supplier will issue an invoice to Canary on or any time after the completion of delivery and only in accordance with the Terms. Canary will pay all properly invoiced amounts due to Supplier within thirty (30) days after Canary’s receipt of such invoice, except for any amounts disputed by Canary in good faith. In the event of a payment dispute, Canary will deliver a written statement to Supplier prior to the date payment is due on the disputed invoice listing all disputed items and providing a reasonably detailed description of each disputed item. Amounts not so disputed are deemed accepted and must be paid, notwithstanding disputes on other items, within the period set forth in this Section. The parties will seek to resolve all such disputes expeditiously and in good faith. Supplier will continue performing its obligations under the Order notwithstanding any such dispute.
(c) Setoff. Without prejudice to any other rights and remedies it may have, Canary reserves the right to set off at any time any amount owing to it by Supplier against any amount payable by Canary to Supplier under the Order.
6. SERVICES. To the extent that Supplier provides Services to Canary, this Section 6 will also apply.
(a) Supplier’s Obligations Regarding Services. Supplier shall:
(i) before the date on which the Services are to start, obtain, and at all times during the term of this Agreement, maintain, all necessary licenses and consents and comply with all relevant laws applicable to the provision of the Services;
(ii) obtain Canary’s written consent, prior to entering into agreements with or otherwise engaging any person or entity, including all subcontractors and affiliates of Supplier, other than Supplier’s employees, to provide any Services to Canary (each such approved subcontractor or other third party, a “Permitted Subcontractor”). Canary’s approval shall not relieve Supplier of its obligations under the Agreement, and Supplier shall remain fully responsible for the performance of each such Permitted Subcontractor and its employees and for their compliance with all of the terms and conditions of this Agreement as if they were Supplier’s own employees. Nothing contained in this Agreement shall create any contractual relationship between Canary and any Supplier subcontractor or supplier;
(b) Trademark Ownership and Protection. Supplier acknowledges that Canary and/or its clients (collectively “Clients”) are the sole and exclusive owners of their trademarks, service marks, trade names and logos (together, the “Marks”). Any Marks provided by Canary under this Agreement or otherwise and any derivative works relating thereto, shall at all times remain the property of Canary and/or its licensors. Supplier agrees and acknowledges that is shall not acquire any interest in the Marks or the goodwill associated with the Marks by virtue of this Agreement or Supplier’s approved use of the Marks.
(c) Change Orders. Canary may at any time, by written instructions and/or drawings issued to Supplier (each a “Change Order”), order changes to the Services. Supplier will promptly submit to Canary a firm cost proposal for the Change Order. If Canary accepts such cost proposal, Supplier shall proceed with the changed services subject to the cost proposal and the terms and conditions of this Agreement. Supplier acknowledges that a Change Order may or may not entitle Supplier to an adjustment in the Supplier’s compensation or the performance deadlines under this Agreement.
7. REPRESENTATIONS AND WARRANTIES.
(a) Supplier represents and warrants to Canary that:
(i) Rights. Supplier has good and marketable title to the Products that are subject to this Agreement, and that the Products are not subject to any liens, mortgages, security interests, pledges, judgments, encumbrances, or charges of any kind.
(ii) Products and Specifications. For a period of twelve (12) months from the Delivery Date (the “Warranty Period”), all Products will: (a) be free from any defects in workmanship, material, and design; (b) conform to applicable specifications, drawings, designs, samples, and other requirements specified by Canary; (c) be fit for their intended purpose and operate as intended; (d) be merchantable; and (e) be free and clear of all liens, security interests or other encumbrances; and (e) not infringe or misappropriate any third party’s trademark or other intellectual property rights. These warranties survive any delivery, inspection, acceptance, or payment of or for the Products by Canary.
(iii) No Claims. Supplier has no knowledge of unresolved claims, demands, or pending litigation alleging that the Products or Services infringe or misappropriate any patent rights, copyrights, trademark rights, rights in trade secrets, database rights, moral rights, and any other intellectual rights (registered or unregistered) throughout the world (the “Intellectual Property Rights”) of any third party.
(iv) Quality. Supplier will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.
(b) These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Canary’s discovery of the noncompliance of the Products or Services with the foregoing warranties. If Canary gives Supplier notice of noncompliance with this Section, Supplier will, at its own cost and expense, promptly (i) replace or repair the defective or nonconforming Products and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming Products to Supplier and the delivery of repaired or replacement Products to Canary, and, if applicable, (ii) repair or re-preform the applicable Services.
(a) Supplier will defend, indemnify and hold harmless Canary, Canary’s Clients, and the respective shareholders, directors, officers, employees, and agents of the foregoing (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with:
(i) Supplier’s breach of this Agreement;
(ii) Supplier’s negligence, willfull misconduct, fraud, misrepresentation, or violation of law;
(iii) Any property damage, bodily injury, or death related to Supplier’s performance under this Agreement or use of a Product or Service; or
(iv) Any claim that Canary’s or Indemnitee’s use, possession, or sale of the Products or use of the Services violates, infringes, or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party.
(b) In no event will Supplier enter into any settlement without Canary’s or Indemnitee’s prior written consent.
9. CONFIDENTIAL INFORMATION. All non-public, confidential or proprietary information of Canary or Canary’s clients, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Canary to Supplier, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the Order is confidential, solely for the use of performing the Order and may not be disclosed or copied unless authorized by Canary in writing. Upon Canary’s request, Supplier will promptly return all documents and other materials received from Canary. Canary will be entitled to injunctive relief for any violation of this Section. This Section will not apply to information that is: (i) in the public domain; (ii) known to the Supplier at the time of disclosure; or (iii) rightfully obtained by the Supplier on a non-confidential basis from a third party.
10. COMPLIANCE WITH LAWS.
(a) Compliance with Laws. In connection with this Agreement, Supplier shall be in compliance with and shall comply with all applicable laws, regulations, directives, and ordinances, including but not limited to, anti-bribery laws, conflict mineral laws, employment laws, import and export laws, and data protection/ privacy laws. Supplier has and will maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under the Order. Supplier assumes all responsibility for shipments of Products requiring any government import clearance. Canary may terminate this Order if any government authority imposes antidumping duties, countervailing duties or any retaliatory duties on the Products.
11. RELATIONSHIP OF THE PARTIES. The relationship between the parties is that of independent contractors. Nothing contained in the Order will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity will be construed from this Order.
(a) Termination for Convenience. Canary may terminate this Order, in whole or in part, at any time with or without cause for undelivered Products on ten (10) days’ prior written notice to Supplier.
(b) Termination for Cause. In addition to any remedies that may be provided under these Terms, Canary may terminate this Order with immediate effect upon written notice to the Supplier, either before or after the acceptance of the Products or the Supplier’s delivery of the Services, if Supplier has not performed or complied with any of these Terms, in whole or in part. If the Supplier becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then Canary may terminate this Order upon written notice to Supplier.
(c) Effects of Termination. If Canary terminates the Order for any reason, Supplier’s sole and exclusive remedy is payment for the Products received and accepted and Services accepted by Canary prior to the termination.
13. LIMITATION OF LIABILITY. Nothing in this Order will exclude or limit Supplier’s liability under the following Sections: 7 (Representations and Warranties), 8 (Indemnification), 9 (Confidential Information), and 10 (Compliance With Laws and Code of Conduct) hereof. Nothing in this Order will exclude or limit Supplier’s liability under Supplier’s liability for fraud, personal injury or death caused by its negligence or willful misconduct.
14. INSURANCE. During the Term and for a period of one (1) year thereafter, Supplier will, at its own expense, maintain, and carry insurance in full force and effect that includes, but is not limited to, commercial general liability (including product liability) with limits no less than $1,000,000 for each occurrence and $2,000,000 in the aggregate with financially sound and reputable insurers. Upon Canary’s request, Supplier will provide Canary with a certificate of insurance and policy endorsements for all insurance coverage required by this Section, and will not do anything to invalidate such insurance. The certificate of insurance will name Canary as an additional insured. Supplier will provide Canary with thirty (30) days’ advance written notice in the event of a cancellation or material change in Supplier’s insurance policy. Except where prohibited by law, Supplier will require its insurer to waive all rights of subrogation against Canary’s insurers and Canary or the Indemnified Parties.
(a) Force Majeure. Neither party will be liable to the other for any delay or failure in performing its obligations under the Order to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party’s fault or negligence, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable (“Force Majeure Event”). Force Majeure Events include, but are not limited to, acts of God or the public enemy, government restrictions, floods, fire, earthquakes, explosion, epidemic, war, invasion, hostilities, terrorist acts, riots, strike, embargoes or industrial disturbances. Supplier’s economic hardship or changes in market conditions are not considered Force Majeure Events. Supplier will use all diligent efforts to end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized and resume performance under the Order. If a Force Majeure Event prevents Supplier from carrying out its obligations under the Order for a continuous period of more than ten (10) business days, Canary may terminate this Order immediately by giving written notice to Supplier.
(b) Assignment. Supplier will not assign, transfer, delegate, or subcontract any of its rights or obligations under the Order without the prior written consent of Canary. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the Supplier of any of its obligations hereunder.
(c) Waiver. No waiver by any party of any of the provisions of the Order will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the Order, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the Order will operate or be construed as a waiver thereof, nor will any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
(d) Governing Law; Submission to Jurisdiction. All matters arising out of or relating to this Order will be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action or proceeding arising out of or relating to this Order will be instituted in the federal courts of the United States of America or the courts of the State of California in each case located in the City of San Ramon and County of Contra Costa, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
(e) Cumulative Remedies. The rights and remedies under this Order are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
(f) Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) will be in writing and addressed to the parties at the addresses set forth on the face of this Order or to such other address that may be designated by the receiving party in writing. All Notices will be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Order, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
(g) Severability. If any term or provision of this Order is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
(h) Survival. Provisions of this Order which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Order including, but not limited to, the following provisions / sections: 7 (Representations and Warranties), 8 (Indemnification), 14 (Insurance), 10 (Compliance with Laws and Code of Conduct), 9 (Confidential Information), 15(d) (Governing Law; Submission to Jurisdiction), and 15(h) (Survival).
(i) Amendment and Modification. No change to this Order is binding upon Canary unless it is in writing, specifically states that it amends this Order and is signed by an authorized representative of Canary.