These Purchase Order “Terms and Conditions” are incorporated into and made a part of the purchase order (“PO”) between the parties. As used herein, “Buyer” means Linear Labs, Inc. (including its affiliates) and “Seller” means the seller (including its affiliates) identified in the PO. In the event any term of any agreement, including any Seller invoice or quotation, between Seller and Buyer conflicts with these Terms and Conditions, these Terms and Conditions shall govern.
Seller and Buyer hereby agree as follows:
- SERVICES & DELIVERABLES. Seller agrees to perform the services (“Services”) and/or provide the goods and deliverables (collectively referred to as “Goods”), described in the PO, in accordance with the PO and these Terms and Conditions. Upon acceptance of the PO, shipment of Goods, or commencement of a Service, Seller shall be bound by the provisions of these Terms and Conditions. Any term or condition in any Seller purchase order, confirmation or other document furnished by Seller which is in any way inconsistent with, or in addition to, the Terms and Conditions is hereby expressly rejected, and shall be superseded by these and Conditions. The PO and these Terms and Conditions are expressly limited to, and expressly made conditional on, Seller’s acceptance of the PO and these Terms and Conditions. Seller shall grant Buyer reasonable access to Seller’s facilities and records (and, as applicable, to facilities and records of Seller’s sub-contractors) to representatives of Buyer, as well as government and/or regulatory agencies, for purposes of assessing Seller’s compliance with all relevant legal, regulatory and contractual requirements, including those speciﬁed in a PO. Any proposed changes to Goods, manufacturing process, materials, packaging, delivery, or sub-contractor(s) employed by Seller in connection with a PO must be approved in advance, in writing by Buyer. Any drawings, designs, patterns, tools, dies, jigs, machinery, equipment or similar materials provided to Seller by Buyer shall; (i) remain the sole and exclusive property of Buyer, and (ii) be used solely by Seller to perform Services or manufacture Goods for Buyer, and (iii) upon Buyer’s request, be returned promptly to Buyer or otherwise satisfactorily accounted for, and Seller, at its expense, shall insure all such items for the reasonable value thereof against loss or damage of any kind.
- DELIVERY & ACCEPTANCE. Seller’s delivery of Goods shall be made pursuant to the schedule or dates identified in the PO, or as agreed to by the parties in writing, via the carrier and to the place or destination specified in the PO. Buyer shall have a reasonable period of time after receipt of the Goods and before payment to inspect the Goods for conformity hereto. Goods shall not be deemed accepted until Buyer has run an adequate test to determine whether the Goods conform to the specifications hereof. If Goods tendered do not wholly conform to the provisions hereof, Buyer shall have the right to reject such Goods.
- PAYMENT. As full consideration for the performance of Services and delivery of Goods as provided herein, Buyer shall pay Seller the amount (in the currency) specified in the PO and any required sales tax on such purchase pursuant to Seller’s monthly invoice. Buyer’s payment shall be due within forty-five (45) days of each such invoice. Seller will pay all bank charges, or transfer or miscellaneous taxes, duties, levies and other costs and commissions associated with nonstandard methods of invoicing and payment. Seller is solely responsible for paying all required taxes, (including, but not limited to, property or excise taxes with respect to the provision of Goods) except for any sales tax or income tax assessed upon Buyer. Where Buyer is required by law to pay withholding tax, Buyer will make payment to Seller less such withholding tax and account to the relevant tax authority. Seller warrants that the prices for all Goods sold to Buyer are no less favorable than those then extended to any other party for the same or like goods or services. In the event Seller establishes or offers a lower price for the sale of such Goods to any other party, from the date of acceptance of a PO to the date of the invoice for such similar product is sent to Buyer, Seller agrees to reduce such price(s) to Buyer to a price no less favorable.
- Goods. Seller warrants that all Goods provided will be new and will not be used or refurbished. Seller warrants that all Goods delivered shall be free from defects in materials and workmanship and shall conform to all applicable specifications for a period of the later of: (i) (1) year from the date of delivery to Buyer, or (ii) Seller’s standard warranty. In the event that any of the Goods are unique or custom Goods Seller warrants that it shall not sell such Goods to any third party.
- Services. Seller warrants that all Services shall be completed in a professional, workmanlike manner, with the degree of skill and care that is required by others of similar quality to Seller’s business. Further, Seller represents and warrants that the Services shall be completed in accordance with applicable specifications and shall be correct and appropriate for the purposes contemplated in these Terms and Conditions. Seller represents and warrants that the performance of Services under these Terms and Conditions will not conflict with, or be prohibited in any way by, any other agreement or statutory restriction to which Seller is bound.
- Insurance. Seller agrees to keep in full force and effect) comprehensive general liability insurance with a combined single limit in an amount not less than $1,000,000 per occurrence, and $2,000,000 aggregate (or equivalent coverage under an “umbrella” policy), including comprehensive form premises and operations, independent contractors, products and completed operations, personal injury, contractual, and broad form property damage liability coverage. Seller agrees that upon request by Buyer, it will deliver to Buyer the applicable certificates of insurance naming Buyer as an additional insured and will notify Buyer prior to any termination, expiration or change in coverage provided thereunder.
- INDEMNITY. Seller shall indemnify, hold harmless, and at Buyer’s request, defend Buyer (including its affiliates) and their respective officers, directors, agents and employees, against all claims, liabilities, damages, losses and expenses, including reasonable attorneys’ fees and costs arising out of any claim based on: (a) the negligence, omissions or willful misconduct of Seller; (b) a violation of applicable law; or (c) a third party alleging that the Goods or Services, the results of such Services, or any other products or processes provided under these Terms and Conditions, infringe a patent, copyright, trademark, trade secret or other proprietary right of a third party. Seller shall not settle any such suit or claim without Buyer’s prior written approval.
- CONFIDENTIALITY. Seller may acquire Buyer Confidential Information (defined below) in connection with its performance hereunder and agrees to keep such Buyer Confidential Information in confidence during and following termination or expiration of these Terms and Conditions. “Buyer Confidential Information” means all proprietary and non-public information, and information that by its nature is reasonably expected to be confidential and that is disclosed to Seller by Buyer, whether in written, oral, electronic, or other form including, but not limited to, inventions, prototypes, computer programs, ideas, data, designs, sketches, product concepts, benchmark and business and financial information, and any summaries or portion thereof. Buyer Confidential Information does not include information which: (a) is publicly available prior to the time of disclosure; (b) becomes publicly available to Seller after disclosure through no fault of, or breach of these Terms and Conditions by, Seller; (c) is in the possession of Seller at the time of disclosure; (d) is obtained by Seller from a third party who is not bound by a confidentiality restriction; or (e) is independently developed by Seller without use of or reference to Buyer Confidential Information.
Seller agrees not to copy, alter or directly or indirectly disclose any Buyer Confidential Information to any third party; provided, Seller may disclose Confidential Information which is required to be disclosed pursuant to a requirement of a government agency or law so long as Seller provides prompt notice to Buyer of such requirement prior to disclosure. Seller agrees to limit its internal distribution of Buyer Confidential Information to Seller’s employees or contractors who have a need to know and are obligated to Seller to maintain Buyer Confidential Information under confidentiality terms no less protective than those contained herein. In no event will Seller use less than the degree of care and means that it uses to protect its own information of like kind, but in any event not less than reasonable care to prevent the unauthorized use or disclosure of Buyer Confidential Information. Seller will not use Buyer Confidential Information except in the course of performing hereunder and will not use Buyer Confidential Information for its own benefit or for the benefit of any third party. All Buyer Confidential Information is and shall remain the property of Buyer. Upon Buyer’s written request or the termination of these Terms and Conditions, Seller shall return to Buyer all Buyer Confidential Information and all copies thereof.
- EXPORT CONTROL. In connection with the PO and these Terms and Conditions, each party agrees to comply with all applicable U.S. export control laws and regulations, including, without limitation, the Export Administration Regulations (the “EAR”) administered by the Bureau of Industry and Security of the U.S. Department of Commerce (“BIS”) (collectively, “U.S. Export Controls”). Prior to disclosing any Buyer Confidential Information or providing any data or information of Buyer that is subject to the jurisdiction of U.S. Export Controls, Buyer shall mark such Buyer Confidential Information, data or information with a legend that provides details regarding the classification of such Buyer Confidential Information, data or information under U.S. Export Controls. Seller receiving such Buyer Confidential Information, data or information that is marked with a U.S. Export Controls-related legend agrees not to disclose, transfer, export or re-export such Buyer Confidential Information, data or information to any third party, including non-U.S. individuals or entities whether or not related to or affiliated with Seller, without obtaining the prior written consent of Buyer and, as required by the EAR, an export license or other authorization from BIS.
- TERM AND TERMINATION. Unless specified otherwise in the PO, these Terms and Conditions will be in effect from the date of delivery of the Goods or start of the Services (whether in part or whole) and continue for a period of one (1) year. Buyer hereby reserves the right to reschedule any delivery or cancel the PO with respect to standard Goods (i.e., not “custom” product), at any time prior to shipment of the Goods or prior to commencement of any Services. Buyer shall not be subject to any charges or other fees as a result of such cancellation. In the event Seller fails to deliver the Goods within the time specified, if any, Buyer may, at its option, decline to accept the Goods and terminate these Terms and Conditions or may demand its allocable fair share of Seller’s available Goods and terminate the balance of these Terms and Conditions. Buyer may terminate these Terms and Conditions immediately upon written notice to Seller if Seller fails to perform or otherwise breaches these Terms and Conditions, files a petition in bankruptcy, becomes insolvent, or dissolves. Buyer may terminate these Terms and Conditions, or any Service(s), for any other reason upon thirty (30) days’ written notice to Seller.
- LIMITATION OF LIABILITY. EXCEPT FOR SELLER’S OBLIGATIONS UNDER SECTION 5 OR BREACH OF SECTION 6, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY, OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THESE TERMS AND CONDITIONS, or be liable in the aggregate for any amount in excess of the amounts paid or payable BY Buyer under THESE TERMS AND CONDITIONS whether based on breach of contract, tort (including negligence) or otherwise, regardless of whether such damage was foreseeable and whether or not the party seeking a remedy has been advised of the possibility of such damage.
- FORCE MAJEURE. Buyer shall not be liable for any failure to perform including failure to (a) accept performance of Services or, (b) take delivery of the Goods as provided caused by circumstances beyond its control which make such performance commercially impractical including, but not limited to, acts of God, fire, flood, acts of war, government action, accident, labor difficulties or shortage, inability to obtain materials, equipment or transportation. In the event Buyer is so excused, either party may terminate these Terms and Conditions and Buyer shall at its expense and risk, return any Goods received to the place of shipment.
- Independent Contractors. Seller will not be an employee of Buyer but, rather, will have the status of an independent contractor and nothing herein will be deemed to place the parties in the relationship of employer-employee, principal-agent, partners or joint venturers. Seller will be responsible for the payment of any and all federal, state and local taxes of any kind incurred by Seller resulting from the services performed hereunder, including income and FICA tax. Seller will have no power to contractually bind or incur any debt or liability on behalf of Buyer for any obligations or contracts of any kind or nature without the prior written consent of Buyer. Seller is solely responsible for ensuring that all required tax withholdings are made.
- No Assignments. Seller may not assign these Terms and Conditions or any of its rights or obligations under these Terms and Conditions, without the prior written consent of Buyer. Any assignment or transfer without such written consent shall be null and void. These Terms and Conditions shall inure to the benefit of, and be binding upon, the successors and assigns of Buyer without restriction. A waiver of any default hereunder or of any term or condition of these Terms and Conditions shall not be deemed to be a continuing waiver or a waiver of any other default or any other term or condition.
- Modifications. All additions or modifications to these Terms and Conditions must be made in writing and must be signed by the Parties.
- No Waiver. Any failure of a party to enforce any provision of these Terms and Conditions shall not be deemed a waiver of that or any other provision of these Terms and Conditions.
- Construction. If any provision contained in these Terms and Conditions is determined to be invalid or unenforceable as a whole or in part, the remaining provisions and any partially enforceable provision will be binding and enforceable, and the parties agree to substitute for the invalid provision a valid provision which most closely approximates the intent and economic effect of such invalid provision.
- Applicable Law. These Terms and Conditions shall be construed and interpreted in accordance with the laws of the state of Texas, USA, excluding its rules for choice of law. The state and federal courts located in Tarrant County Texas shall have exclusive jurisdiction and venue of all matters that related to or arise from the subject matter of these Terms and Conditions. Notwithstanding the foregoing, nothing herein prevents Buyer from applying to the courts of any country for injunctive or other equitable relief to prevent or curtail any breach of these Terms and Conditions.
- Anti-Corruption. Seller represents that it shall not (and shall not permit any of its subsidiaries or affiliates or any of its or their respective directors, officers, managers, employees, independent contractors, representatives or agents to) promise, authorize or make any payment to, or otherwise contribute any item of value to, directly or indirectly, to any third party, including any Non-U.S. Official (as (as such term is defined in the U.S. Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”)), in each case, in violation of the FCPA, the U.K. Bribery Act, or any other applicable anti-bribery or anti-corruption law. Seller further represents that it shall (and shall cause each of its subsidiaries and affiliates to) cease all of its or their respective activities, as well as remediate any actions taken by the Seller, its subsidiaries or affiliates, or any of their respective directors, officers, managers, employees, independent contractors, representatives or agents in violation of the FCPA, the U.K. Bribery Act, or any other applicable anti-bribery or anti-corruption law. Seller further represents that it shall (and shall cause each of its subsidiaries and affiliates to) maintain systems of internal controls (including, but not limited to, accounting systems, purchasing systems and billing systems) to ensure compliance with the FCPA, the U.K. Bribery Act, or any other applicable anti-bribery or anti-corruption law. Upon request, the Seller agrees to provide responsive information and/or certifications concerning its compliance with applicable anti-corruption laws.
- Survival. Sections 4, 5, 6, 7, 9 and 11 (as applicable) shall survive the expiration or termination of these Terms and Conditions.
- Counterparts. These Terms and Conditions may be signed in counterparts, including by electronic signature, each of which shall be considered an original.
- Notices. All notices, demands or consents required or permitted hereunder shall be delivered in writing to the addresses set forth in the PO (or other address provided in writing to the other side), and, to Buyer, to the attention of the General Counsel.