Overview
These Standard Purchase Order Terms and Conditions (these “Terms”) only apply to transactions that do not have a written signed agreement that is duly executed between the parties. If there is such an agreement, then those terms and conditions shall govern the parties’ transactions. In the absence of such an agreement, then these Terms provide you (“Seller”) with the terms and conditions of your purchase order (“PO”) with Applied Intuition, Inc. (“Applied Intuition”) for the goods and/or services that are described in the applicable PO.
Seller’s full or partial performance under the applicable PO shall constitute acceptance of these Terms. Any terms and conditions which differ from these Terms, whether contained in any acknowledgement of the applicable PO, or with delivery of any goods or services under the PO or otherwise, will not be binding on Applied Intuition, whether or not they would materially alter the applicable PO or these Terms, and Applied Intuition hereby rejects them. Applied Intuition reserves the right to amend or modify these Terms at its sole discretion at any time, and Seller’s continued fulfillment of the PO shall constitute acceptance of any amended terms.
Goods and Services; Payments and Taxes
Seller agrees to deliver the goods and/or perform the services in accordance with the schedule and performance criteria specified in the applicable PO. Upon Applied Intuition’s acceptance of the goods and/or services, Seller shall render invoices to Applied Intuition that contain the applicable PO number(s), item number(s), description of goods and/or services furnished, quantities, unit prices, date(s) rendered, and total purchase prices. Each invoice must refer to one, and only one, PO. As the only consideration due to Seller regarding the subject matter of the applicable PO, and unless otherwise stated in the applicable PO, Applied Intuition will pay Seller within thirty (30) days of Applied Intuition’s receipt of an undisputed invoice. The prices listed in the applicable PO shall include all royalties, license fees, taxes, excises, duties, and costs, both direct and indirect, except that, where products and/or services are subject to Value Added Tax, the amount legally due shall be specified as a separate item of account on any invoice. All claims for monies owed or to become due shall be subject to deduction(s) for any setoff(s) or counterclaim(s) arising out of this or any of Applied Intuition’s orders with Seller.
2. Delivery; Inspection; Acceptance
TIME IS OF THE ESSENCE UNDER THE PO. Title and risk of loss shall not pass to Applied Intuition until delivery of the goods to the location designated on the face of the PO and acceptance by Applied Intuition. If Applied Intuition rightfully rejects the goods, receives a non-conforming tender, or revokes its acceptance, risk of loss and title shall be deemed to have remained with Seller. The responsibility for freight damaged merchandise will be assumed by Seller. No charges for unauthorized transportation will be allowed. Any unauthorized shipment, which will result in excess transportation charges, must be fully prepaid by the Seller. All goods and services will be subject to Applied Intuition’s inspection and testing prior to final acceptance. Rejection of any goods and/or services will be made as promptly as practical after delivery, except as otherwise stated in the applicable PO. Goods supplied in excess of quantities ordered may be returned to Seller at Seller’s sole expense. Applied Intuition’s failure to inspect and/or accept or reject the goods or services or its failure to detect defects by inspection, will neither relieve Seller from responsibility for such goods and/or services that do not conform to the requirements stated in the applicable PO nor constitute Applied Intuition’s acceptance of the goods or services. In the event Applied Intuition finds the goods or services to be defective in material or workmanship, or otherwise not in conformity with the requirements of the applicable PO, then Applied Intuition, in its sole discretion and in addition to any other rights or remedies it may have by contract, law, or equity, may: a) reject and return such goods to Seller at Seller’s sole expense; or b) require Seller to replace non-conforming goods or services with conforming goods or services in an expeditious manner and at Seller’s sole expense. If Seller fails to provide the necessary replacements in a timely or satisfactory manner, Applied Intuition may secure replacement goods and/or services at its option and require Seller to promptly refund payments Applied Intuition already made for any rejected Seller goods and/or services.
3. Default; Termination
Applied Intuition may, by written notice of default to Seller: (a) terminate all or any part of a PO if Seller fails to perform, or fails to make sufficient progress so as to endanger performance of the PO in accordance with these Terms, and does not cure such failure within a period of five (5) days (or such longer period as Applied Intuition may authorize in writing) after receipt of notice from Applied Intuition specifying such failure; and (b) procure, on such terms as it will deem appropriate in its sole discretion, goods or services similar to those so terminated. In the event of a partial termination, Seller will continue to perform under the PO and will remain liable to Applied Intuition for any excess costs incurred for such similar goods or services, including premium transportation costs. This PO shall terminate automatically, without notice, if Seller becomes insolvent or becomes the subject of any bankruptcy proceedings. Alternatively, in lieu of termination for default, Applied Intuition may, at its sole discretion, elect to extend the delivery schedule and/or waive other deficiencies in Seller’s performance, in which case, an equitable reduction in the PO price will be negotiated between the parties. Applied Intuition’s rights and remedies under this Section 3 are not exclusive and are in addition to any other rights or remedies provided by the Uniform Commercial Code, by law, or at equity.
4. Warranties
Seller represents and warrants that: a) all Seller goods and/or services will be free of any claim of any nature by any third person and that Seller will convey clear title to Applied Intuition; b) all Seller services, if any, are performed in a manner consistent with generally accepted standards in the industry, free from all defects, fit for the particular purpose(s) for which they are acquired, and are provided in strict accordance with the specifications or other requirements (including technical specifications) provided by Applied Intuition; c) all goods sold will be of merchantable quality, free from all defects in design, workmanship, and materials, and fit for the particular purposes for which they are purchased and that the goods and services are provided in strict accordance with the specifications, samples, drawings, designs or other requirements (including technical specifications) approved or adopted by Applied Intuition; d) the prices for the goods and/or services sold to Applied Intuition under this PO are not less favorable than those currently extended to Seller’s other customers for the same or similar goods and/or services in equal or lesser quantities; e) Seller’s goods and/or services, and Seller’s performance under the PO and these Terms, will comply in all respects with any applicable statutes, laws, rules or regulations; and f) Seller shall not act in any manner that would render Applied Intuition liable for a violation of any applicable anti-bribery legislation (including, but not limited to the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Art 2010). All of Seller’s warranties herein or that are implied by law shall survive any inspection, delivery, acceptance, or payment by Applied Intuition. Any attempts by Seller to limit, disclaim, or restrict these warranties or any remedies of Applied Intuition, by acknowledgement or otherwise, in accepting or performing this PO, will be null, void, and ineffective without Applied Intuition’s written consent.
5. Property Rights
Unless otherwise noted in the applicable PO, all tangible and intangible property, paid for in whole or in part by Applied Intuition, and any replacements or attachments, are the sole property of Applied Intuition and, unless otherwise agreed in writing by Applied Intuition, will be used by Seller solely to render services or provide goods to Applied Intuition. Seller will not substitute any property to take any action inconsistent with Applied Intuition’s ownership of such property. While in Seller’s custody or control, such property will be held at Seller’s risk, will be kept insured by Seller at its expense for its replacement cost with loss payable to Applied Intuition, and will be subject to removal at Applied Intuition’s written request, in which event Seller will prepare such property for shipment and redelivery to Applied Intuition in the same condition as originally received by Seller, reasonable wear and tear excepted, all at Seller’s expense.
6. Intellectual Property
Any pre-existing intellectual property owned by either party prior to the date on the PO shall remain the sole property of that party. Any work product, designs, inventions, or materials created or developed specifically for Applied Intuition under the PO shall be considered “work made for hire,” and Applied Intuition shall own all right, title, and interest in such work product, including any copyrights, patents, trade secrets, and other proprietary rights, upon payment to Seller. To the extent that any pre-existing Seller intellectual property is incorporated into the deliverables provided to Applied Intuition, including any embedded software and/or documentation, Seller hereby grants Applied Intuition a perpetual, worldwide, non-exclusive, royalty-free license to use, modify, and distribute such pre-existing intellectual property, solely for the purpose of utilizing the deliverables as intended. In accepting these Terms, Seller represents and warrants that the deliverables do not infringe on any third-party intellectual property rights and agrees to defend, indemnify, and hold Applied Intuition harmless from any claims or damages arising from any alleged intellectual property infringement.
7. Order Changes
Applied Intuition will have the right at all times to make changes to any PO, including changes to the quantities, specifications, methods of shipment or packing and delivery schedules or location of delivery. If any such changes cause an increase or decrease in the cost of or the time required for the performance of any work under the PO, an equitable adjustment will be made in the contract price or delivery schedule, or both, and the PO will be modified in writing accordingly. Nothing in this Section, including any disagreement with Applied Intuition as to any claimed adjustment, will excuse Seller from proceeding with the PO as modified. Any claim by Seller for adjustment under this Section 7 must be in a detailed writing and delivered to Applied Intuition within five (5) days after the date Seller receives notification of the change. Any change will be authorized only by a duly executed amendment to the PO.
8. Confidentiality
Notwithstanding anything to the contrary, any knowledge or information that Seller has disclosed or may later disclose to Applied Intuition, and which is any way relates to the goods or services covered by the PO will not, unless otherwise specifically agreed to in writing by Applied Intuition, be deemed to be confidential or proprietary information, and will be acquired by Applied Intuition, free from any restrictions. Seller will not transmit to Applied Intuition any sensitive personal information, including, but not limited to, identified health or financial information, social security numbers, biometrics or other personally identified or identifiable information of similar sensitivity. Seller will keep confidential any technical, process, economic, or other information derived from any data furnished by Applied Intuition in connection with the PO (in whatever form or format) and will not divulge, export, or use, directly or indirectly, such information for the benefit of any other party without obtaining Applied Intuition’s prior written consent. Except as required for the efficient performance of the PO, Seller will not disclose or use such information or make copies or permit copies to be made of such drawings, specifications, or other data without the prior written consent of Applied Intuition. Upon completion or termination of the PO, Seller will promptly destroy or return to Applied Intuition all materials incorporating any such information and any copies and shall provide written certification of Seller’s compliance with this Section 8. Seller agrees that no acknowledgement or other information concerning the PO or the goods or services provided will be made public by Seller without Applied Intuition’s prior written consent.
9. Insurance
Seller will maintain its own comprehensive insurance policies, including but not limited to, General Liability, Automobile Liability, Cybersecurity Liability, and Excess Liability, with limits as reasonably required by Applied Intuition, as well as sufficient Workers’ Compensation insurance to protect Seller from any claims under an applicable workers’ compensation and occupational disease act. At Applied Intuition’s request, Seller will furnish Certificate of Insurances completed by Seller’s insurance carrier(s) certifying that the required insurance coverage is in effect, with waiver of subrogation riders, naming Applied Intuition and its affiliates as additional insureds, and containing a covenant that such coverage will not be canceled or materially changed until thirty (30) days after prior written notice has been delivered to Applied Intuition.
10. Indemnification
Seller shall indemnify and hold Applied Intuition and its affiliates, officers, employees, contractors, consultants, agents, and representatives harmless and shall defend each of them from and against any and all third party claims, demands, losses, or damages of any kind, whether based upon negligence, breach of express of implied warranty, strict liability, infringement of intellectual property rights, or any other theory, and from and against: a) any and all direct, indirect, special, incidental, or consequential damages of any kind, arising out of or in connect with the goods and/or services provided by Seller; b) any breach by Seller of any of its obligations hereunder; c) any claims of personal injury or property damage arising from or related to Seller’s goods or services; d) any alleged or actual infringement of any intellectual property rights related to Seller’s goods or services; or e) any other act, omission or negligence of Seller or any of Seller’s employees, contractors, consultants, agents, subcontractors, representatives, or suppliers. Seller shall pay or reimburse Applied Intuition, or any other party entitled to indemnification hereunder, for all costs and expenses incurred by Applied Intuition or such other party, including attorneys’ fees and costs, with any such claim, demand, loss, or damage. Additionally, in the event of an infringement claim, Seller will, at its own expense and at Applied Intuition’s option, either procure for Applied Intuition the right to: a) continue using the allegedly infringing item; b) replace the allegedly infringing item with a non-infringing equivalent; or c) remove the infringing item and refund the purchase price and the transportation and installation costs thereof in full.
11. Limitation of Liability
IN NO EVENT WILL APPLIED INTUITION’S AGGREGATE LIABILITY ARISING FROM OR RELATING TO THE PO EXCEED THE TOTAL AMOUNTS PAID BY APPLIED INTUITION TO SELLER WITHIN THE IMMEDIATE TWELVE (12) MONTHS PRECEDING THE LOSS, DAMAGE, OR CLAIM. TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, APPLIED INTUITION SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOST REVENUES OR REPUTATION, EVEN IF APPLIED INTUITION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. Government Contracts
If the applicable PO is for goods and/or services purchased under a government contract or subcontract, Seller shall comply with all pertinent provisions of said government contract or subcontract, including applicable executive orders and directives, to the extent they apply to the subject matter of the PO, in addition to any contract provisions, orders, and directives incorporated by reference into the PO.
13. Compliance with Laws
Seller represents and warrants that it will provide its goods and/or services in compliance with Applied Intuition’s Supplier Code of Conduct as well as all applicable federal, state, and local laws or ordinances. Seller shall comply with any provisions, representations, agreements, or contractual clauses required to be included or incorporated by reference in the PO. Seller shall be required to obtain and pay for any license, permit, inspection or listing by any public body or certification organization required in connection with the manufacture, performance, completion, or delivery of any good and/or service.
14. Miscellaneous
a. Non-Assignment. Assignment of this PO or any interest in it or any payment due or to become due under it, will be void without the prior written consent of Applied Intuition.
b. Force Majeure. Neither party shall be liable for any failure to perform or delay in performance of its obligations under the PO due to circumstances beyond its reasonable control, including but not limited to acts of God, natural disasters, strikes, labor disputes, war, acts of terrorism, governmental actions, pandemics, or other events that are unforeseeable and unavoidable (“Force Majeure Event”). In the event of a Force Majeure Event, the affected party shall promptly notify the other party in writing, detailing the nature of the event and the expected duration. The performance of the affected obligations shall be suspended for the duration of the Force Majeure Event, and the time for performance shall be extended accordingly or as otherwise agreed between the parties. If the Force Majeure Event continues for a period exceeding ten (10) days, either party may terminate the PO without liability, upon written notice to the other party.
c. Remedies. Each of the rights and remedies reserved to Applied Intuition under this PO shall be cumulative and additional to any other remedies provided in law or equity. No delay or failure by Applied Intuition in the exercise of any right or remedy shall affect any such right or remedy, and no action taken or omitted by Applied Intuition shall be deemed to be a waiver of any such right or remedy.
d. Publicity. Seller will not use Applied Intuition’s name, logo, trademarks, or any other identifying marks in any of its publicity, advertising, press releases, or other marketing activities, except with Applied Intuition’s prior written consent. Seller will not disclose the existence of the PO or any of its respective terms to any third party without Applied Intuition’s prior written consent, unless such disclosure is required for legal or regulatory purposes.
e. Waiver. No claim or right arising out of a breach of this PO can be discharged in whole or in part by a waiver or renunciation of the claim or right unless supported by consideration and in a writing signed by the aggrieved party. Applied Intuition’s failure, if any, to enforce any of the provisions hereof, at any time or for any period of time, will not be construed as a waiver of such provisions or of Applied Intuition’s right to enforce each and every such provision.
f. Notices. All notices, consents, waivers, and other communications required or permitted to be given pursuant to the PO, shall be in writing and shall be deemed to have been delivered either: i) on the delivery date, if personally delivered; ii) one (1) business day after delivery, if delivered by facsimile or electronic mail; or iii) three (3) business days after deposit in the United States mail, registered or certified mail, if sent by courier. All notices to Applied Intuition shall be sent to 145 E Dana Street, Mountain View, CA 94041 USA or legal@applied.co (mailto:legal@applied.co). All notices to Seller shall be sent to its address as set forth in the PO, or at such other address as Seller may designate in writing.
g. Severability. If any provision of the PO or these Terms shall be held or deemed to be invalid or unenforceable, this provision shall not affect any other provision(s) contained in the PO or Terms.
h. Governing Law. The PO and these Terms will be interpreted and governed by the laws of California in the United States of America without regard to any conflict of law principles.
i. Survival. Seller’s obligations under Sections 4, 5, 6, 8, 9, 10, 11, 12, 13 and 14 will survive any termination of this PO.
j. Entire Agreement. The PO and these Terms, with such documents as are expressly incorporated by reference, is intended by the parties as a final expression of their agreement with respect to such terms as are included in it, and is intended also as a complete and exclusive statement of the terms of their agreement. The PO can be modified only by a writing signed by authorized representatives from both parties.
