Velo3D Supplier Terms and Conditions
Updated April 25, 2018
THE TERMS SET FORTH ON BOTH SIDES OF THIS PURCHASE ORDER CONSTITUTE THE ENTIRE AGREEMENT BETWEEN COMPANY AND SELLER REGARDING THE IDENTIFIED GOODS AND SERVICES, AND COMPANY’S PURCHASE IS CONDITIONED UPON SELLER’S UNQUALIFIED ASSENT TO THE TERMS SET FORTH HEREIN, IN LIEU OF ANY TERMS IN SELLER’S QUOTATION, ACKNOWLEDGMENT, ACCEPTANCE, OR OTHER DOCUMENTS. COMPANY WILL NOT BE BOUND BY ANY TERMS OF SELLER’S DOCUMENTS THAT ARE IN CONFLICT WITH, OR WHICH PURPORT TO ADD TO OR MODIFY THESE TERMS. ACCEPTANCE BY SELLER OF THESE TERMS MAY BE MADE EITHER BY WRITTEN ACCEPTANCE OR SHIPMENT OF ANY OF THE GOODS, OR PERFORMANCE OF ANY OF THE SERVICES, SUBJECT TO THIS ORDER.
Price and Payment Terms
Seller’s prices to Company shall not exceed those identified on this order, and shall not be greater than the price charged to other buyers of similar quantities of similar goods or services. Unless otherwise stated in writing signed by Company, all prices include any applicable taxes, shipping or installation charges. Company will pay Seller’s invoices in accordance with the terms on the reverse side of this purchase order; or, if no terms are indicated, net 45 days after Company’s acceptance of the materials and/or services subject to this order and receipt of Seller’s invoice. All payments due to Seller shall be subject to a deduction by Company for amounts due to Company from Seller.
Shipping and Delivery
Unless otherwise agreed to in writing signed by Company, all shipments shall be DAP (Incoterms) the place of destination as designated by Company pursuant to this order. Seller shall properly package and mark all containers and deliver to Company all documents that Company needs to receive possession of the goods. Time is of the essence under this order. Seller shall promptly notify Company of any possible delivery delays. Company reserves the right to terminate this order, in whole or in part, without any liability if Seller fails to deliver the goods or services as required by this order.
Inspection and Acceptance
Notwithstanding any prior inspection or payments, all items will be subject to final inspection and acceptance at Company’s plant within a reasonable time after delivery. Company may reject any item that does not conform to the requirements of this order, and may, at its option: (i) require Seller to repair or replace such items at no cost to Company, (ii) return such items to Seller at Seller’s expense and risk and recover from Seller the order price thereof, or (iii) correct such items and charge Seller the cost of correction.
Company reserves the right to change the delivery dates, destination, or specifications provided for in this order. Seller shall promptly notify Company if such changes will result in changes in Seller’s cost or time of performance.
Termination of Order
Company may terminate this order in whole or in part with or without cause prior to delivery. If Company terminates this order for cause Company shall have no liability beyond payment of any balance owing for goods and/or services delivered to and accepted by Company prior to notice of termination. If Company terminates this order for its convenience it shall have no liability beyond payment of any balance owing for goods and/or services delivered to and accepted by Company prior to notice of termination and for work in progress that is requested for delivery and accepted by Company.
Seller warrants that all goods (i) will be free from defects in materials, workmanship and design, (ii) conform to all applicable specifications, samples, and descriptions, and (iii) will be safe for normal use, are non-toxic, present no abnormal hazards to persons or their environment, and may be disposed of as normal refuse without special precautions. Seller also warrants that any services subject to this order will be performed in a good and workmanlike manner consistent with applicable industry standards. Seller further agrees to comply with all applicable laws and regulations relating to the manufacture, sale and export of the goods or provision of the services. The foregoing warranties are in addition to all other express or implied warranties, and survive any delivery, inspection, acceptance, or payment by Company. In the event of any breach of warranty, Seller shall, at Company’s option, promptly replace or repair non-conforming goods or refund the purchase price. Seller will be liable in addition for any damages, including cost of cover, caused by Seller’s breach.
At Company’s option, Seller will defend at its own expense any claim, suit, or proceeding against Company to the extent based upon (i) Seller’s breach of this agreement, or (ii) a claim that goods or services provided by Seller infringe, misappropriate or contribute to infringement of any patent, copyright, trademark or trade secret of any third party. Seller will pay all damages, costs and expenses finally paid or awarded to such third party. In addition, if as a result of such suit an injunction is issued against Company that limits the use or sale of any goods or services purchased hereunder, Seller at Company’s request shall supply Company with non-infringing replacement items conforming to Company’s requirements.
Limitation of Company’s Liability
IN NO EVENT WILL COMPANY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT AND/OR CONSEQUENTIAL DAMAGES INCLUDING LOST PROFITS, ARISING OUT OF OR RELATING TO THIS ORDER OR ITS TERMINATION, WHETHER OR NOT IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Company’s liability, regardless of the form of action, may not exceed the purchase price stated on this order.
All equipment, tooling, plans or other objects and information obtained by Seller from Company shall remain the property of Company and shall be returned to Company upon request. Seller shall not disclose or use for any purposes other than that contemplated by this order any Company equipment, tooling, processes, techniques, designs, know-how, or other trade secret or confidential information.
This Agreement shall be governed by California law, without regard to its conflicts of law principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply. Any action arising out of or relating to this order will be brought in Santa Clara County, California or the U.S. District Court for the Northern District of California, as applicable, and Seller hereby agrees and submits to the personal jurisdiction and venue thereof.
Any modifications of this purchase order must be in writing and signed by both parties. The waiver by Company of any default will not waive subsequent defaults by Seller. Seller shall not assign or delegate any of its rights or duties under this agreement without Company’s written consent. Company may assign this order upon written notice.