These Purchase Order Terms and Conditions (“Terms”) are incorporated into and made part of the purchase order (“PO”) between the parties. “Buyer” means Linear Labs, Inc. and its affiliates, and “Seller” means the seller identified in the PO. If 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 prevail.
Seller and Buyer hereby agree as follows.
- SERVICES & DELIVERABLES Seller shall render the services (“Services”) and/or provide the goods and deliverables (collectively “Goods”), described in the PO as specified by the PO and these Terms. Seller shall be bound by these Terms upon its acceptance of the PO, shipment of Goods, or commencement of Service. Any term or condition in any Seller purchase order, confirmation or other document from Seller which is inconsistent with or in addition to these Terms is hereby rejected and shall be superseded by these Terms. The PO and these Terms are expressly limited to and made conditional on Seller’s acceptance of the PO and these Terms. Seller shall grant Buyer reasonable access to Seller’s facilities and records (and, as applicable, to those of Seller’s sub-contractors) and to government and/or regulatory agencies to assess Seller’s compliance with all applicable legal, regulatory, and contractual requirements, including those stated in a PO. Buyer must approve by advance writing any proposed changes to Goods, manufacturing process, materials, packaging, delivery, or sub-contractor(s) employed by Seller in connection with a PO. Any drawings, designs, patterns, tools, dies, jigs, machinery, equipment, or similar materials Buyer provides to Seller shall (i) remain Buyer’s sole property, and (ii) be used by Seller only to render Services or manufacture Goods for Buyer; (iii) upon Buyer’s request, be returned promptly to Buyer or otherwise satisfactorily accounted for; and (iv) be insured by Seller at its expense for its reasonable value against loss or damage of any kind.
- DELIVERY & ACCEPTANCE Seller shall deliver Goods per schedule or dates stated in the PO or as the parties otherwise agree in writing, by the carrier and to the destination stated in the PO. Buyer shall have a reasonable period of time after receipt and before payment to inspect and test the Goods for compliance with these Terms, and Goods shall not be deemed accepted until Buyer has completed such procedures to its satisfaction. Buyer has the right to reject tendered Goods which do not wholly conform to these Terms.
- PAYMENT As full consideration for rendition of Services and delivery of Goods as provided herein, Buyer shall pay Seller the amount stated in the PO plus any applicable taxes pursuant to Seller’s monthly invoice. Buyer’s payment shall be due within sixty (60) days of each such invoice. Seller will pay all bank charges, 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 on provision of Goods) except sales or income tax imposed on Buyer. If Buyer is required by law to withhold tax from payments to Seller, it will remit 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 given to any other party for the same or like goods or services. If Seller establishes or offers a lower price for the sale of Goods to any other party between the date of accepting Buyer’s PO to the date Seller sends its invoice to Buyer, Seller shall reduce its pricing to Buyer to a price no less favorable.
- Goods Seller warrants that all Goods will (a) be new and not used or refurbished; (b) be delivered free from defects in design, materials, and workmanship; (c) conform to all applicable specifications for a period of the later of (i) one year from the date of delivery to Buyer, or (ii) Seller’s standard warranty. If any Goods are based on or incorporate any Linear Labs design(s) or features, Seller warrants that it shall not sell such Goods or any copies or replications of such Goods to any third party.
- Services Seller represents and warrants that Services (a) will be completed in a professional, workmanlike manner with a degree of skill and care commensurate with highest prevailing standards for Seller’s type of business; (b) will be completed according to applicable specifications and shall be correct and appropriate for the purposes contemplated in these Terms and Conditions; (c) rendition will not conflict with or be prohibited by any other agreement or statutory restriction to which Seller is bound.
- Insurance Seller shall maintain comprehensive general liability insurance with a combined single limit of 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. On Buyer request Seller shall deliver to Buyer applicable certificates of insurance naming Buyer as an additional insured and will notify Buyer before 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) Seller’s negligence, omissions or willful misconduct; (b) Seller’s 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 advance written approval.
- CONFIDENTIALITY Seller may acquire Buyer Confidential Information (defined below) in connection with its performance hereunder and shall keep such Buyer Confidential Information in confidence in perpetuity. “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 before disclosure to Seller; (b) becomes publicly available to Seller after disclosure through no fault of, or breach of these Terms and Conditions by, Seller; (c) is in Seller’s possession at the time of disclosure; (d) is obtained by Seller from a third party not bound by a confidentiality restriction; or (e) is independently developed by Seller without use of or reference to Buyer Confidential Information. Seller shall not copy, alter, or directly or indirectly disclose any Buyer Confidential Information to any third party; provided however that Seller may disclose Confidential Information required to be disclosed by law or government order so long as Seller gives Buyer reasonable advance notice of the requirement before disclosure. Seller agrees to limit its internal distribution of Buyer Confidential Information to Seller’s employees or contractors with a need to know and who are obligated to Seller to maintain Buyer Confidential Information under confidentiality terms no less protective than those herein. Seller will not use less than the degree of care and means 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 shall comply with 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”). Before 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 shall not disclose, transfer, export or re-export such Buyer Confidential Information, data or information marked with a U.S. Export Controls-related legend to any third party, including non-U.S. individuals or entities whether or not related to or affiliated with Seller, without obtaining Buyer’s prior written consent 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 take effect on the date of delivery of Goods or start of Services (whether in part or whole) and continue for one (1) year. Buyer reserves the right to reschedule any delivery or cancel the PO with respect to standard Goods (i.e., not “custom” product), at any time before shipment of Goods or commencement of Services. Buyer shall not be subject to any charges or other fees as a result of such cancellation. If Seller fails to deliver 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, pandemic, 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.
- GENERAL PROVISIONS
- Independent Contractors Seller is an independent contractor and not an employee of Buyer. Nothing herein places the parties in the relationship of employer-employee, principal-agent, partners or joint venturers. Seller will be responsible to pay all federal, state, and local taxes incurred by Seller resulting from Services rendered 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 Buyer’s prior written consent. 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 hereunder without Buyer’s prior written consent. Any assignment or transfer without such written consent shall be null and void. These Terms and Conditions shall inure to the benefit of and shall bind Buyer’s successors and assigns, without restriction. A waiver of any default hereunder or of any provision of these Terms and Conditions shall not be deemed a continuing waiver or a waiver of any other default or any other provision.
- Modifications Any 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 in these Terms and Conditions is determined to be invalid or unenforceable as a whole or in part, all other provisions and any partially enforceable provision will remain 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 the 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 related to or arising from the subject matter of these Terms and Conditions. Notwithstanding the foregoing, nothing herein prevents Buyer from applying to the courts of any state or 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 defined in the U.S. Foreign Corrupt Practices Act (“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) stop 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 shall survive 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 stated in the PO (or other address provided in writing to the other side), and, to Buyer, to the attention of the General Counsel.