GENERAL PURCHASE ORDER TERMS AND CONDITIONS
(a) This purchase order is an offer by Canary, LLC (“Canary”) for the purchase of the goods specified on the face of this purchase order (the “Goods”) from the party to whom the purchase order is addressed (the “Seller”) 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 Seller’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 Seller’s general terms and conditions of sale or any other document issued by Seller 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 Seller 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 Seller.
3. Delivery Date. Seller shall deliver the Goods 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 Goods is of the essence. If Seller fails to deliver the Goods in full on the Delivery Date, Canary may terminate the Order immediately by providing written notice to Seller and Seller shall indemnify Canary against any losses, claims, damages, and reasonable costs and expenses directly attributable to Seller’s failure to deliver the Goods on the Delivery Date.
4. Quantity. If Seller delivers more than 5% or less than the quantity of Goods ordered, Canary may reject all or any excess Goods. Any such rejected Goods shall be returned to Seller at Seller’s risk and expense. If Canary does not reject the Goods and instead accepts the delivery of Goods at the increased or reduced quantity, the Price for the Goods shall be adjusted on a pro-rata basis.
5. Delivery Location. All Goods shall be delivered to the address specified in this Order (the “Delivery Location”) during Canary’s normal business hours or as otherwise instructed by Canary.
6. Shipping Terms. Delivery shall be made in accordance with the terms on the face of this Order. Seller shall give written notice of shipment to Canary when the Goods are delivered to a carrier for transportation. Seller shall provide Canary all shipping documents, including the commercial invoice, packing list, and any other documents necessary to release the Goods to Canary within two (2) business days after Seller delivers the Goods 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.
7. Title and Risk of Loss. Title passes to Canary upon delivery of the Goods to the Delivery Location. Seller bears all risk of loss or damage to the Goods until delivery of the Goods to the Delivery Location.
8. Packaging. All goods shall be packed for shipment according to Canary’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. Seller must provide Canary prior written notice if it requires Canary to return any packaging material. Any return of such packaging material shall be made at Seller’s expense.
9. 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.
10. Inspection and Rejection of Nonconforming Goods. Canary has the right to inspect the Goods on or after the Delivery Date. Canary, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines the Goods are nonconforming or defective. If Canary rejects any portion of the Goods, Canary has the right, effective upon written notice to Seller, to: (a) rescind the Order in its entirety; (b) accept the Goods at a reasonably reduced price; or (c) reject the Goods and require replacement of the rejected Goods. If Canary requires replacement of the Goods, Seller shall, at its expense, promptly replace the nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective goods and the delivery of replacement Goods. If Seller fails to timely deliver replacement Goods, Canary may replace them with goods from a third party and charge Seller the cost thereof and terminate this Order for cause pursuant to Section 18. Any inspection or other action by Canary under this Section shall not reduce or otherwise affect Seller’s obligations under the Order, and Canary shall have the right to conduct further inspections after Seller has carried out its remedial actions.
11. Price. The price of the Goods is the price stated in the Order (the “Price”). If no price is included in the Order, the Price shall be the price set out in Seller’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.
12. Payment Terms. Seller shall issue an invoice to Canary on or any time after the completion of delivery and only in accordance with the Terms. Canary shall pay all properly invoiced amounts due to Seller within thirty (30) days after Canary’s receipt of such invoice, except for any amounts disputed by Canary in good faith. All payments hereunder must be in US dollars and made by check or wire transfer. In the event of a payment dispute, Canary shall deliver a written statement to Seller no later than one (1) day 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 shall seek to resolve all such disputes expeditiously and in good faith. Seller shall continue performing its obligations under the Order notwithstanding any such dispute.
13. Setoff. Without prejudice to any other right or remedy it may have, Canary reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Canary to Seller under the Order.
14. Warranties. Seller warrants to Canary that for a period of six (6) months from the Delivery Date, all Goods 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. Seller warrants to Canary that all Goods will 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 Goods by Canary. 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 Goods with the foregoing warranties. If Canary gives Seller notice of noncompliance with this Section, Seller shall, at its own cost and expense, promptly replace or repair the defective or nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods to Seller and the delivery of repaired or replacement Goods to Canary.
15. General Indemnification. Seller shall defend, indemnify and hold harmless Canary and its respective members and employees and Canary’s customers (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 the products purchased from Seller or Seller’s negligence, willful misconduct or breach of the Terms. Seller shall not enter into any settlement without Canary’s or Indemnitee’s prior written consent.
16. Intellectual Property Indemnification. Seller shall, at its expense, defend, indemnify and hold harmless Canary and any Indemnitee against any and all Losses arising out of or in connection with any claim that Canary’s or Indemnitee’s use or possession of the Goods infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. In no event shall Seller enter into any settlement without Canary’s or Indemnitee’s prior written consent.
17. Compliance with Law. Seller is in compliance with and shall comply with all applicable laws, regulations and ordinances. Seller has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under the Order. Seller shall comply with all export and import laws of all countries involved in the sale of Goods under this Order. Seller assumes all responsibility for shipments of Goods 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 Goods.
18. Termination. Canary may terminate this Order, in whole or in part, at any time with or without cause for undelivered Goods on ten (10) days’ prior written notice to Seller. 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 Seller, either before or after the acceptance of the Goods, if Seller has not performed or complied with any of these Terms, in whole or in part. If the Seller 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 Seller. If Canary terminates the Order for any reason, Seller’s sole and exclusive remedy is payment for the Goods received and accepted by Canary prior to the termination.
19. Limitation of Liability. Nothing in this Order shall exclude or limit (a) Seller’s liability under Sections 14, 15, 16, and 21 hereof, or (b) Seller’s liability for fraud, personal injury or death caused by its negligence or willful misconduct.
20. Waiver. No waiver by any party of any of the provisions of the Order shall 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 shall operate or be construed as a waiver thereof, nor shall 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.
21. Confidential Information. All non-public, confidential or proprietary information of Canary, 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 Seller, 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, Seller shall promptly return all documents and other materials received from Canary. Canary shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to the Seller at the time of disclosure; or (c) rightfully obtained by the Seller on a non-confidential basis from a third party.
22. Force Majeure. Neither party shall 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. Seller’s economic hardship or changes in market conditions are not considered Force Majeure Events. Seller shall 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 Seller 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 Seller.
23. Assignment. Seller shall 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 shall be null and void. No assignment or delegation shall relieve the Seller of any of its obligations hereunder.
24. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in the Order shall 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 shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from this Order.
25. Governing Law. All matters arising out of or relating to this Order shall 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.
26. Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or relating to this Order shall 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.
27. 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.
28. Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall 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 shall 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.
29. Severability. If any term or provision of this Order is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
30. 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: Setoff, Warranties, General Indemnification, Intellectual Property, Indemnification, Compliance with Laws, Confidentiality, Governing Law, Submission to Jurisdiction and Survival.