Shapesim – PURCHASE ORDER TERMS AND CONDITIONS
1. Entire Agreement. This purchase order (including all attachments) (“Order”) becomes the complete agreement between Shapesim, Inc. (“Shapesim”) and you (“Seller”) with respect to the subject matter of this order upon Seller’s acknowledgement or commencement of performance. Any acceptance by Seller stating additional or different terms from those stated in this Order shall operate as an acceptance by Seller, provided that all such additional or differing terms are hereby deemed material alterations and are hence null and void. No modification, alteration or amendment shall be effective unless in writing and signed by authorized representatives of both parties.
- This order shall not be filled at prices higher than those shown herein unless such increased prices have been authorized in writing by Shapesim.
- If Seller decreases prices for any items to be furnished, the price of all unshipped items shall be adjusted to the lower prices.
- Applicable taxes shall be stated separately on Seller’s invoice. Any and all and other charges such as insurance, duties, customs, tariffs, and imposed or government-imposed surcharges are the responsibility of Seller.
3. Invoicing and Discounts. Any applicable discount basis shall be computed from the latest of: (i) the scheduled delivery date, (ii) the actual delivery, or (iii) the date an acceptable invoice is received. An acceptable invoice shall be in duplicate and include, without limitation, the purchase order number, a description of the items, quantities, and unit prices for all goods invoiced. Payment by Shapesim’ check will be deemed to have been made on the date of mailing. If payment is made electronically, payment shall be deemed made when Seller’s depository institution receives or has control of the payment.
4. Delivery and Shipping.
- Time is of the essence. Delivery shall be strictly in accordance with the schedule set forth in this Order and any delays in shipment shall be reported immediately by Seller to Shapesim. No partial deliveries or deliveries of additional items shall be made without Shapesim’ express prior written consent. Shapesim reserves the right to cancel this Order in whole or in part if Seller fails to make deliveries in accordance with its terms (including but not limited to missing any delivery dates).
- All goods shall be prepared for shipment according to Shapesim’ instructions, if any, and otherwise in a manner that follows good commercial practice, is acceptable to common carriers, and is adequate to ensure safe arrival. Seller shall mark all containers with necessary lifting, handling and shipping information, purchase order number, date of shipment and the names of Shapesim and Seller.
- Unless otherwise specified herein, all shipments shall be DDP (Incoterms 2000). Notwithstanding any prior inspections, Seller bears all risk of loss, damage, or destruction until final acceptance by Shapesim.
5. Acceptance. Payment for items ordered hereunder shall not constitute acceptance. All items are subject to Shapesim’ inspection and test before final acceptance at Shapesim’ premises. If any inspection or test is made on Seller’s premises, Seller shall provide Shapesim’ inspectors with reasonable facilities and assistance at no additional charge. No item shall be deemed accepted by Shapesim until Shapesim has given written notice of such acceptance to Seller. Shapesim shall have the right to reject or require the correction of any item found to be defective, which item shall be promptly replaced or corrected by Seller. Shapesim may reject any order in full that is partially defective.
- Shapesim may at any time make changes in the delivery schedules, designs, quantities, and specifications for goods ordered hereunder. Shapesim may terminate this Order in whole or in part at any time for any reason on written notice to Seller and Seller shall stop work immediately upon receipt of said notice.
- There shall be no charges for canceling Orders for standard items. Any claim for cancellation charges for nonstandard items must be submitted to Shapesim in writing within thirty (30) days after receipt of Shapesim’ termination notice.
- Seller’s claim may include: (i) the cost of unique work in process, and (ii) the cost of paying claims to Seller’s vendors for work directly allocable to items cancelled and which cannot be diverted to other customers of Seller’s vendors. Seller shall, whenever possible, place such work in process in inventory and sell it to other customers. In no event shall any such claim for nonstandard items exceed the total price for items cancelled. Upon payment of Seller’s claim, Shapesim shall be entitled to all work and materials paidfor. Shapesim reserves the right to inspect Seller’s work in process and to audit all relevant documents prior to paying Seller’s claim.
7. Warranty. Seller warrants that all items provided hereunder shall be merchantable, free from defects in design, workmanship and materials, and conform to the agreed-upon specifications for the items. At Shapesim’ option, Seller shall promptly repair, replace or refund the purchase price and cost of shipment to Shapesim of all defective or otherwise unacceptable items. Shapesim shall have no liability for any such returned items and Seller shall bear all liability, responsibility and expenses for them. Seller warrants that the Work Product will be an original work of Seller and that the Work Product will not infringe or misappropriate the Intellectual Property Rights of any third party. The foregoing warranties are in addition to all other warranties, express, implied, or statutory, and survive delivery, inspection, acceptance, or payment by Shapesim.
8. Indemnity. Seller shall indemnify Shapesim and Shapesim’ customers and hold them harmless against any costs, expenses, losses, damages or liabilities (including attorneys’ fees) (a) incurred because of actual or alleged infringement of any Intellectual Property Right of any third party arising out of the use or sale by Shapesim or use by Shapesim’ customers of any items furnished hereunder (except to the extent arising from compliance with Shapesim’ specification); (b) which result from a breach or alleged breach of any representation or warranty of Seller in this Agreement or any intentional misconduct or negligence by Seller or any of its subcontractors, employees, or agents in performing services under this Agreement.; or (c) cause any personal injury or death to Shapesim and its employees, contractors, agents, and customers. Shapesim shall notify Seller of any such claim or demand and Seller shall defend any suits based thereon. If an injunction issues as a result of any such claim, Seller agrees at its expense and at Shapesim’ option to:
(i) procure for Shapesim the right to continue using items ordered hereunder; (ii) replace such goodsith noninfringing items; (iii) modify the goods so they become noninfringing; or (iv) refund to Shapesim the amount paid for the items and bear all liabilities, costs and expenses related to discarding them or returning them to Seller.
9. Force Majeure. Neither party shall be responsible for its failure to perform due to causes beyond its reasonable control such as acts of God, fire, theft, war, riot, embargoes or acts of civil or military authorities. If delivery is to be delayed by such contingencies, Seller shall immediately notify Shapesim in writing and Shapesim may either: (i) extend Seller’s time of performance; or (ii) terminate the uncompleted portion of the Order at no cost to Shapesim.
10. Intellectual Property Rights.
- Definitions. As used in this Order, the term “Invention” means any ideas, concepts, information, materials, processes, data, programs, know-how, improvements, discoveries, developments, designs, artwork, formulae, other copyrightable works, and techniques and all Intellectual Property Rights therein. The term “Intellectual Property Rights” means all trade secrets, copyrights, trademarks, mask work rights, patents and other intellectual property rights recognized by the laws of any country.
- Shapesim Materials. Any Inventions provided, or paid for, by Shapesim, including but not limited to specifications, tooling, materials, custom product manufacturing and design, data, etc. (“Shapesim Materials”) shall remain the sole and exclusive property of Shapesim. For the avoidance of doubt, Shapesim owns all tooling paid for by Shapesim, even if purchased by Seller.
- Work Product
- Work Product. The term “Work Product” means any Invention that is solely or jointly conceived, made, reduced to practice, or learned by Seller (1) in the course of any services performed for Shapesim and relating to the items ordered by Shapesim (other than Inventions relating to Seller’s manufacturing process) or (2) with the use of Shapesim Materials (other than Inventions relating to Seller’s manufacturing process). Seller agrees to disclose promptly in writing to Shapesim all Work Product. Seller agrees that any and all Work Product shall be the sole and exclusive property of Shapesim. If Seller has any rights to the Work Product that are not owned by Shapesim upon creation or embodiment, Seller irrevocably assigns to Shapesim all right, title and interest worldwide in and to such Work Product.
- License to or Waiver of Other Rights. If Seller has any right to the Work Product that cannot be assigned to Shapesim by Seller, Seller unconditionally and irrevocably grants to Shapesim during the term of such rights, an exclusive, even as to Seller, irrevocable, perpetual, worldwide, fully paid and royalty-free license, with rights to sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, distribute, publicly perform and publicly display in any form or medium, whether now known or later developed, make, use, sell, import, offer for sale and exercise any and all such rights. If Seller has any rights to the Work Product that cannot be assigned or licensed to Shapesim, Seller unconditionally and irrevocably waives the enforcement of such rights, and all claims and causes of action of any kind against Shapesim or related to Shapesim’ customers, with respect to such rights, and agrees, at Shapesim’ request and expense, to consent to and join in any action to enforce such rights.
- Assistance. Seller agrees to assist Shapesim in every way, both during and after the term of this Order, to obtain and enforce United States and foreign Intellectual Property Rights relating to Work Product in all countries. In the event Shapesim is unable to secure Seller’s signature on any document needed in connection with such purposes, Seller hereby irrevocably designates and appoints Shapesim and its duly authorized officers and agents as its agent and attorney in fact, which appointment is coupled with an interest, to act on its behalf to execute and file any such documents and to do all other lawfully permitted acts to further such purposes with the same legal force and effect as if executed by Seller.
- All Shapesim Materials and Work Product shall (i) be kept confidential by Seller; (ii) be used by Seller exclusively to manufacture goods for Shapesim; (iii) be clearly marked as Shapesim’ property and be segregated from Seller’s other tooling, materials and data when not in use;(iv) be kept in good working condition at Seller’s expense; (v) be shipped to Shapesim promptly on demand; (vi) not be moved, relocated, or transferred to any third party; (vii) not be modified without Green Toy’s prior written consent, and (viii) not be subject to any liens, security interests or other encumbrances by Seller. Seller shall be responsible for the maintenance and operation of the Shapesim Materials and will pay for all repairs of the Shapesim Materials.
- Confidential Information. Seller will not disclose and will not use any of Shapesim’ confidential or proprietary information (“Confidential Information”) for any purpose other than performance of this Order and will protect Shapesim’ Confidential Information with the highest degree of care. Seller will only disclose Shapesim’ Confidential Information to its employees with a strict need-to-know basis. Confidential Information may be disclosed in any form and includes any information that is not generally publically available.
- Insurance. Seller shall insure Shapesim Materials and Work Product and be liable for any loss or damage while Shapesim Materials and Work Product is in Seller’s possession or control, ordinary wear and tear excepted. A Certificate of Insurance indicating such coverage shall be delivered to Shapesim upon request. The Certificate shall indicate that the policy will
not be changed or terminated without at least thirty (30) days’ prior notice to Shapesim, shall name Shapesim as an additional named insured and shall also indicate that the insurer has waived its subrogation rights against Shapesim.
- Publicity. Seller may not use Shapesim’ name in advertisements nor otherwise disclose the existence or content of this Order without Shapesim’ prior written consent.
- Limitations. IN NO EVENT SHALL Shapesim’ AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE FEES PAID BY Shapesim TO SELLER FOR THE ORDER UNDER WHICH THE CLAIM ACCRUED. IN NO EVENT SHALL Shapesim HAVE ANY LIABILITY TO SELLER FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT Shapesim HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
- Assignment. Seller shall not delegate any duties nor assign any rights under this Order without the prior written consent of Shapesim, and any such attempted delegation or assignment shall be void without Shapesim’ consent.
- Setoff. All claims for money due or to become due from Shapesim hereunder shall be subject to deduction by Shapesim for any setoff or counterclaim arising out of this or any other of Shapesim’ transactions with Seller.
- Governmental Compliance. Seller will comply with all federal, state, and local laws and regulations applicable to the performance of its obligations hereunder.
- Remedies. The rights and remedies provided by Shapesim herein shall be cumulative and in addition to any other rights and remedies provided by law or equity or those provided under the Uniform Commercial Code.
- Applicable Law. This Order and any action related thereto will be State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different state. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods and any jurisdiction’s adoption of the Uniform Computer Information Transactions Act (or any similar law) will not apply to this Order. Any action or proceeding arising from or relating to this Order may be brought in a federal court in the Northern District of California or in state court in San Francisco County, California, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.
- Notices. All notices, consents and approvals under this Order must be delivered in writing by courier, by electronic facsimile (fax), or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth on the purchase order, and will be effective upon receipt or when delivery is refused. Either party may change its address by giving notice of the new address to the other party.
- Interpretation. Failure by Shapesim or Shapesim to exercise any of its rights hereunder shall not constitute or be deemed a waiver or forfeiture of such rights. In the event that any provision contained in this Order is determined to be invalid or unenforceable, in whole or in part, such provision will be enforced to the maximum extent permissible and the remaining provisions will remain in full force and effect. The headings of sections of this Order are for convenience and are not to be used in interpreting this Order. As used in this Order, the word “including” means “including but not limited to.”
- Entire Order. This Order set forth herein represent the entire agreement between Shapesim and Shapesim with respect to the subject matter hereof and Shapesim agrees that all prior quotations, purchase orders, invoices, negotiations, understandings, representations and/or agreements of the parties relating to the subject matter hereof, whether oral or written, are merged herein and superseded in their entirety.