Terms and Conditions of Purchase
- PURPOSE.
These Terms and Conditions of Purchase (“Terms” or “Agreement”) apply to the purchase of products and/or services (collectively the “Products”), by Turntide Technologies Inc. (“Buyer”) from the seller (“Seller”) which is identified in the accompanying Buyer’s purchase order (the “Order”). These Terms supersede conflicting terms in any other agreement between the parties unless such other agreement specifically references these Terms, states it amends them, and is signed by both parties hereto. Buyer shall have no obligation hereunder to purchase Products from Seller, except as expressly set forth in an Order duly executed on behalf of Buyer and accepted by Seller.
2. PRICE; INSPECTION.
All stated prices shall include any taxes, fees, duties, and levies, however designated or imposed, including but not limited to value-added and withholding taxes that are levied or based upon the amounts paid under this Agreement (collectively, “Taxes”). Seller will bill Taxes as a separate item on the invoice presented to Buyer. All Products received by Buyer, will be subject to Buyer’s incoming inspection, acceptance or rejection. Rejected Products shall be returned at Seller’s expense, plus one hundred percent (100%) refund of transportation charges previously paid by Buyer with respect to the rejected Products. No replacement of defective material returned will be made unless so specified on Buyer’s return order.
3. PAYMENT; SHIPPING.
Buyer will pay all invoiced amounts within forty-five (45) days following receipt of Seller’s invoice. Unless otherwise specified explicitly on the Order, shipping and/or delivery terms and charges shall be DDP (Incoterms® 2020).
4. CHANGES; TERM; TERMINATION.
Buyer reserves the right to make changes in drawings, designs, specifications, materials, packaging, testing requirements, shipping date, and place of delivery and/or method of transportation (“Changes”). Seller agrees to accept such Changes as though the Changes were included in the Order. If any Change causes an increase or decrease in the cost, or the time required for performance, Seller shall notify Buyer in writing within two (2) working days, and the parties shall agree on an equitable adjustment in the price and/or delivery date(s) and shall modify the Order in writing. No claim by Seller for such an adjustment will be valid unless asserted in writing within seven (7) working days after the date on which the change is agreed by both parties. Except in the event of a Change, Seller shall not make any changes to the form, fit, or function of any ordered products or any changes to the drawings, designs, specifications, materials, process, packaging, time and place of delivery or method of transportation without Buyer’s written consent.
Either party may terminate an Order for cause at any time upon written notice if the other party fails to cure, within thirty (30) calendar days of its receipt of written notice thereof, its breach of any material term or condition contained in these Terms or the applicable Order. Buyer may terminate an Order without cause, at any time, by written notice to the Seller not less than thirty (30) calendar days prior to the requested date of termination. All unperformed and/or undelivered Products pending as of such notice of termination shall be deemed cancelled and Seller hereby waives all claims against Buyer in connection with the cancellation of such orders.
5. COMPLIANCE WITH LAWS.
Seller agrees to comply with all applicable Federal, State and local laws and regulations, and provide Turntide with all required and/or requested information and documentation, including but not limited to, the country of origin, the applicable Harmonized System Code and the Export Control Classification Number. In the event of any change in the above-mentioned information, Supplier shall immediately notify Turntide of such change in writing and provide Turntide with revised and updated information and documentation.
Seller hereby certifies that neither it nor any of its affiliates, officers, directors, or employees, have been previously or are currently, included in any list of sanctioned or restricted entities, groups, organizations or individuals, as such lists may be maintained and updated by any “Governmental Authority” (including without limitation any agency or department of the United States government, the European Union, any member state of the European Union and the United Nations, and any other jurisdiction where Turntide is currently established and/or engaged in business operations).
Seller shall comply with relevant statutes, regulations and other legal requirements including those relevant to the regulation of health, safety, environment, welfare, production, storing, handling and delivery, inclusive of but not limited to, regulations and directives, e.g., REACH, RoHS, Conflict Minerals regulations, labor laws, environmental laws, the Federal Occupational Safety and Health Act of 1970, the Federal Hazardous Substances Act, the Transportation Safety Act of 1974, the Hazardous Materials Transportation Act, the Clean Air Act, the Toxic Substances Control Act, the Clean Water Act, the Resource Conservation and Recovery Act, Sections 6,7, and 12 of the Fair Labor Standards Act, the U.S. Foreign Corrupt Practices Act (“FCPA”), the Customs-Trade Partnership Against Terrorism (“C-TPAT”)
Seller shall comply with Buyer’s Supplier Code of Conduct which can be found at the following address and which Buyer can update at any time at its sole discretion: https://turntide.com/supplier-code-of-conduct/
Seller shall not supply to Turntide any products, materials, components, assemblies, or other items that originate in or have been imported, directly or indirectly, from those countries under trade embargo, presently: Cuba, Iran, Syria, Sudan, North Korea, and Burma/Myanmar, as maintained, enforced, and periodically updated by the United States government and/or the European Union and its member states.
6. INDEMNIFICATION.
Seller shall defend, indemnify and hold harmless Buyer, its subsidiaries, affiliates, customers and other designated parties from and against any and all losses, expenses, liens, claims, demands and causes of action of every kind and character (including those of the parties, their agents and employees) for death, personal injury, property damage or any other liability, damages, fines or penalties (except where reimbursement of fines or penalties is prohibited by applicable law), including, without limitation, costs, attorney’s fees and settlements arising out of in connection with the ordered Products, or which arise out of, result from or are contributed to by (i) the acts, omissions, fault or negligence in any form of Seller, its subcontractors or any other parties for which Seller may be responsible, or any of their respective agents, employees, representatives or contractors (ii) any alleged or actual claim that the ordered Products infringe any patent, copyright, trademark, trade secret or other form of intellectual property right of any third party or (iii) any violation of law. If the use of the Product is permanently enjoined, Seller shall, at its expense and option (i) procure the right to continue using the Product, (ii) replace the infringing Product with a non-infringing Product of similar performance, or (iii) modify the Product to make it non-infringing.
7. CONFIDENTIALITY.
Notwithstanding anything to the contrary herein, in the event that the parties have previously entered into a written contract which contains terms of nondisclosure and confidentiality, such terms of nondisclosure and confidentiality shall take precedence over the terms of nondisclosure and confidentiality found in this Agreement only to the extent that they are more protective than the terms found herein; otherwise, the terms of this Agreement shall govern exchanges of Confidential Information made in connection with this Agreement.
The parties acknowledge that they will have access to certain trade secrets, information and materials concerning each other’s business and products, including the terms and conditions of these Terms and the Order, that are confidential and of substantial value to the other (the “Confidential Information”), which would be impaired if such Confidential Information was disclosed to third parties. The parties each agree that they will not use such Confidential Information except in performance of these Terms and the Order or disclose such Confidential Information to third parties except as required by applicable law and provided the receiving party uses reasonable efforts to give the disclosing party reasonable notice of such required disclosure. Each party will also take every reasonable precaution to protect the Confidential Information. For purposes of the foregoing obligations, Confidential Information does not include information that (i) was rightfully known to the receiving party prior to its receipt, (ii) is or becomes publicly available without breach of this Agreement or wrongful act of the receiving party, (iii) is received by receiving party without an obligation of confidentiality and without breach of this Agreement, or (iv) is developed independently by the receiving party without using Confidential Information.
8. INTELLECTUAL PROPERTY RIGHTS; OTHER PROPERTY.
The following rules apply with respect to Orders for custom products: (a) Seller agrees to make prompt and complete disclosure to Buyer of all inventions and disclosures made or conceived as a result of the development and manufacture performed under the Order. Seller agrees to keep necessary records supporting such inventions and discoveries and will furnish to Buyer upon request all such record. (b) Any invention, discovery, proprietary information, software, system, data, drawings, designs, specifications or reports, patents, copyrights, trade secrets, trademarks or other intellectual property (collectively, “Intellectual Property”) resulting from or related to the manufacture or development of the custom product that is funded by Buyer, or any improvement to any designs, drawings, schematics or other intellectual property, of Buyer shall be solely owned by Buyer. In the event any such Intellectual Property is commingled with Seller’s Intellectual Property; Buyer shall have the exclusive rights to use Seller’s Intellectual Property in Buyer’s field of business. Buyer shall have the full right to use such property in any manner without any claim on the part of Seller and without any duty to account to Seller for such use. Seller agrees to assign to Buyer any patent or patent application resulting from the work described in this Section, and to provide reasonable support for Buyer’s prosecution of such patent application. (c) The Parties agree that any original work of authorship created under the Order is a work made for hire for purposes of copyright ownership for which Buyer may apply copyright or other form of intellectual property protection in its own name and may be used by Buyer for any purpose, whatsoever, irrespective of any statement to the contrary appearing on such date, drawing, designs, software and specifications. Unless otherwise approved by Buyer in writing, and without additional cost to Buyer, it is the sole responsibility of Seller to obtain any and all licenses and right necessary to afford Buyer the foregoing rights. To whatever extent Seller has any interest in any original work of authorship created under the Order, Seller hereby grants Buyer a non-exclusive license to use, reproduce, copy, sell and distribute such work, including any derivative works. (d) Seller agrees to grant Buyer permission to include Seller’s (including Seller’s sellers and subcontractors of any tier) copyrighted proprietary and other documents in manuals and instruction books for use by Buyer, its co-ventures and its customers. These documents include, but are not limited to, drawings, sketches, specifications, operating instructions, installation instructions, maintenance and “troubleshooting” procedures, literature and marketing brochures furnished to Buyer by Seller. (e) The Order does not confer or grant, in any manner whatsoever, any license or right under any Intellectual Property held by Buyer, unless specifically set forth in the body of the Order.
Unless otherwise agreed in writing, all tooling, jigs, dies, gauges, fixtures, molds and other equipment including testing equipment, designs, drawings, schematics, supplies, materials or other items of any description furnished to Seller by Buyer or specifically paid for by Buyer (in whole or in part), and any replacements thereof, improvements thereto or any materials affixed or attached thereto, shall be and remains the property of Buyer. Seller shall not use such property except in filling Buyer’s Orders. Such property while in Seller’s custody or control shall be held at Seller’s risk, shall be maintained in operable condition, kept insured by Seller at Seller’s expense in an amount equal to the replacement cost with loss payable to Buyer and will be subject to removal at Buyer’s written request. Seller will at its expense maintain all tooling in good condition and repair, normal wear and tear. Seller shall provide Buyer notice of unusual wear of Buyer tooling and shall notify Buyer in advance of the lead time required to replace such Buyer tooling, if the tooling is likely to wear out prior to such lead time
9. WARRANTY.
Seller warrants that the Products shall: (i) correspond with their description set out in the Order and/or any applicable specification; (ii) comply with any standard of performance specified in the Order; (iii) be of satisfactory quality and of merchantable quality and fit for any purpose held out by the Seller or made known to the Seller by Buyer, expressly or by implication, and in this respect Buyer relies on the Seller’s skill and judgment; (iv) be free from any nonconformance and/or defects in design, materials and workmanship and, unless otherwise agreed by the parties, remain so for 12 months after delivery; and (v) comply with all standards, applicable statutory and regulatory requirements relating to the manufacture, engineering, labelling, packaging, storage, handling and delivery of the Products and/or such international statutory and/or regulatory requirements, as set out in the Order. The Seller shall ensure that at all times it has and maintains all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under the Order in respect of the Products. Before delivering the Products, the Seller shall carefully inspect and test them for compliance with the Order.
10. FORCE MAJEURE.
“Force Majeure” shall mean any act of God, fire, natural disaster, earthquake, accident, act of government, or an act that is beyond the reasonable control of either party. Neither party will be deemed in default of these Terms or an Order to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of a Force Majeure, provided that such party gives the other party written notice thereof promptly and, in any event, within fifteen (15) days after discovery thereof and uses its best efforts continue to so perform or cure. In the event of such a Force Majeure, the time for performance or cure will be for a period equal to the duration of the Force Majeure. Buyer may, at its option, cancel the Order upon notice of a Force Majeure and obtain the Products from an alternate source without liability to Seller.
11. GOVERNING LAW
This Agreement shall be governed by and construed under the laws of the State of California without regard to conflicts of laws provisions thereof. The parties hereby consent to the exclusive jurisdiction of and venue in the federal and/or state courts located in Santa Clara County, California.
12. NOTICES.
Any required or permitted notices hereunder must be given in writing at the address of each party set forth below, or to such other address as either party may substitute by written notice to the other in the manner contemplated herein, by one of the following methods: hand delivery; registered, express, or certified mail, return receipt requested, postage prepaid; nationally-recognized private express courier; or facsimile. Notices will be deemed given on the date received.
Buyer: Turntide Technologies Inc. Seller: To the name and address listed on
1295 Forgewood Ave., Sunnyvale, CA, 94089 Seller’s purchase order
With a copy to: Turntide Legal
Email: [email protected]
13. INSURANCE.
(a) During the Term and at its own expense, Seller will maintain the following insurance coverage in connection with the Products provided to Buyer with insurance carriers rated A-, VII or better by A.M. Best Company:
(i) Required Coverage. Seller may use any combination of the following insurance to meet the total limit requirements.
(ii) Commercial General Liability insurance, including Turntide Technologies Inc. as an Additional Insured, on an occurrence basis for bodily injury, property damage, products and completed operations, and personal and advertising injury, with coverage limits of not less than US $2,000,000 per occurrence.
(iii) Workers’ Compensation insurance as required by law in the state where the services will be provided, including employer’s liability coverage for injury, disease and death, with coverage limits of not less than US $1,000,000 per accident and employee.
(iv) Umbrella (Excess) Liability insurance on an occurrence form, with coverage limits of not less than US $3,000,000 per occurrence.
(v) Professional Liability/Cyber Liability insurance with coverage limits of not less than US $1,000,000 per claim.
(b) Seller Responsible for Own Insurance Coverage; Seller’s Activities at Own Risk. All of Seller’s activities under this Agreement will be at Seller’s own risk.
(c) Certificates of Insurance; Evidence of Insurance Coverage. Upon request, Seller will provide evidence of required insurance coverage to Buyer in the form of an ACORD Certificate of Insurance.
If Seller is not located in the United States, then in lieu of the foregoing requirements in this Section 13, Seller agrees that at a minimum, during the Term and at its own expense, it will maintain insurance coverage at levels customary in its industry and which will allow it to ensure its performance under this Agreement.
14. MISCELLANEOUS.
(a) These Terms and the Order constitute the entire agreement of the parties and supersede all existing agreements and all other oral or written communications between them concerning its subject matter. Any order acknowledgement or other form submitted by Seller is only an acceptance of Buyer’s Order, not an offer or counter-offer by Seller to sell to Buyer under Seller’s terms. Buyer’s willingness and offer to buy products from Seller is expressly conditioned upon Seller’s acceptance of these Terms and the Order. Buyer objects to any additional or different terms contained in any order acknowledgement, quotation or other communication provided by Seller to Buyer. Order fulfillment by Seller constitutes Seller’s acceptance of these Terms and the Order.
(b) None of the Terms may be added to, modified, amended, superseded, or otherwise altered, except by a written document signed by an authorized representative of Buyer and Seller that specifically references these Terms and states that it modifies them.
(c) No waiver of any of the provisions of these Terms is effective unless explicitly set forth in writing that specifically references these Terms and is signed by the other party hereto. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms operates or may be construed as a waiver thereof.
(d) The Section headings contained in these Terms are for convenience only and will not affect the interpretation of any provision.
(e) If any provision of this Agreement is held to be prohibited or unenforceable, the provision will be changed and interpreted to accomplish the objectives of the provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
(f) Neither party may assign, delegate, or transfer the Agreement or any of its rights or duties hereunder, without the prior written consent of the other party. Any attempted assignment or delegation in violation of this section shall be void. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties, their successors, and permitted assigns.
(g) In performing their respective duties under this Agreement, each of the parties will be operating as an independent contractor. Nothing contained herein will in any way constitute any association, partnership, or joint venture between the parties, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the power to bind the other party or incur obligations on the other party’s behalf without the other party’s prior written consent.
(h) Seller shall not subcontract any of its obligations under this Agreement without the advance written consent of Buyer. Seller shall provide a list of subcontractors to Buyer, the list should include subcontractor name, location, job scopes to be contracting from Seller, and capacity; upon Buyer factory audit and approval, Seller will be able to use those subcontractors to fulfill Buyer’s Order.
15. SURVIVAL.
Those provisions dealing with IP, confidentiality, indemnification, warranty, applicable law and those other provisions which by their nature or terms are intended to survive the termination of this Agreement will remain in full force and effect as between the parties hereto regardless of the termination of this Agreement.
Last updated August 22, 2022