1. General. This purchase order (“Order”) and the Blanket Purchase Agreement (“Blanket Agreement”), where applicable, contain the entire agreement between the Supplier (“Supplier”) and Teobyte Inc. (“Teobyte”) regarding the purchase and sale of the products covered by this Order (“Products”). Supplier shall issue to Teobyte a written acknowledgment of this Order within three (3) business days of receipt thereof.
2. Price and Payment. (a) This Order shall be filled at the prices shown on the front side hereof or, if the parties have entered into a Blanket Agreement, the lower of the prices shown on this Order and those shown in Exhibit A of the Blanket Agreement shall apply. (b) If Supplier decreases prices for any items to be furnished hereunder, the price of all unshipped items shall be adjusted to the lower prices. (c) Supplier shall issue to Teobyte a separate invoice for each Order bearing the Teobyte purchase order number. Supplier shall invoice no earlier than the day of shipment. Payment terms are as stipulated on the front side hereof. In the absence of payment terms stated on the front side of this Order, payment of invoices by Teobyte shall be Net Sixty (60) days from Teobyte’s receipt of an invoice consistent with the terms of this Order or, if applicable, the Blanket Agreement. If payment is made within ten (10) days of Teobyte’s receipt of such invoice, Teobyte may deduct two percent (2%) from the amount due as a prompt payment discount. Unless shipping and other charges are itemized, any discount will be taken on the full amount of invoices. Supplier shall issue credit within three (3) business days, for any agreed upon shortage or rejection of goods. Supplier shall issue a revised invoice to v that clearly shows all credits applied. Supplier is entitled to request samples as a part of such adjudication. (d) Unless otherwise provided herein, prices shown on this Order are inclusive of all taxes with respect to the sale to Teobyte of Products. Teobyte shall not be liable for any tax unless the amount of such tax is separately stated in the written acknowledgment of this Order required by Paragraph 1 hereof. Supplier shall not add any taxes to the price of Products which Teobyte is entitled to purchase on an exempt basis, provided that Teobyte provides Supplier with such exemption certificates or similar documents as required by law to effect exempt purchases. Supplier will provide Teobyte with such documentation as Teobyte requires in order to claim tax credits, refunds, rebates or similar relief for taxes charged to Teobyte.
3. Delivery and Shipping. (a) A delivery schedule is specified in this Order. In the event the specified delivery schedule is judged by Supplier to be unreasonable, Supplier may reject this Order by delivering written notice of its rejection to Teobyte within three (3) business days from Supplier’s receipt of such Order; provided, however, that Supplier shall work with Teobyte in good faith to mutually agree upon a reasonable delivery schedule. Any Order not rejected in accordance with the foregoing sentence shall be deemed accepted by Supplier. (b) Supplier shall use a carrier that has been designated by Teobyte to ship the Products under this Order. The Products are to be suitably packed or otherwise prepared by Supplier for shipment so as to secure the lowest transportation rates and to meet the carrier’s requirements. No charges will be allowed for such packing or preparation unless otherwise stated on this Order. Supplier shall deliver or arrange for the delivery of the Products as per Teobyte’s instructions to Teobyte's facility in Vancouver, WA or to such other address as shall be specified by Teobyte in this Order. In the absence of delivery terms on the front side of this document to the contrary, delivery shall be FCA (Free Carrier Incoterms 2010) to Teobyte's facility in Vancouver, WA.
4. Title and Risk of Loss. Title to the Products shall pass to Teobyte once the delivery of the Products is effected in accordance with the terms hereof and, if applicable, the terms of a Blanket Agreement, except if the Products are rejected by Teobyte under this Order.
5. Acceptance. (a) All Products shall be subject to final inspection and acceptance by Teobyte. (b) If Teobyte determines that any Products are defective or do not meet specifications (either before acceptance or under the terms of paragraph 5 hereof), Teobyte shall have the right, at its sole option, to (i) reject such Products and obtain a refund of the purchase price and any shipping charges, or (ii) require repair or replacement of the Products by and at the Supplier’s expense and risk. If Supplier fails to repair or replace defective Products within sixty (60) days after Teobyte’s request thereof, Teobyte may, at its sole option (i) without further notice, terminate this Order for default in accordance with Paragraph 6 hereof, or (ii) require an appropriate reduction in the purchase price. (c) Payment for any Products hereunder shall not be deemed acceptance thereof. Failure to inspect the Products shall not be deemed to constitute (i) acceptance of any defective or nonconforming Products, or (ii) a waiver of Teobyte’s rights or remedies arising by virtue of any defect or nonconformity with the requirements of this Order.
6. Cancellation for Default. (a) This Order may be terminated by Teobyte at any time if Supplier breaches any material obligation provided hereunder or under the Blanket Agreement, if applicable, and Supplier fails to cure such breach within fifteen (15) days of receipt of a written or electronic notice of such breach. (b) If Supplier, at any time, determines that it will be or will likely be unable to fulfill this Order for any reason, Supplier shall immediately notify Teobyte in writing and specify a proposed completion date and reason for inability to meet agreed upon delivery date(s). In the event the proposed completion date is unacceptable to Teobyte, Teobyte may cancel this Order without penalty or charge to Teobyte.
7. Cancellation Without Cause. Teobyte may, without liability, by notice to Supplier, no more than ten (10) days after date of order, cancel the whole or any part of this Order. Where notice of cancellation is given more than ten (10) days after date of order, Teobyte agrees in such instance to pay Supplier all verified, reasonable, non‑recoverable out-of-pocket costs for Teobyte unique raw materials and works in process incurred by Supplier for the ordered Products under the cancelled Order, but only to the extent that (a) such raw materials unique to Teobyte and works in process cannot be reasonably used by Supplier in fulfilling subsequent Teobyte Orders and (b) provided that the Supplier is not at fault pursuant to the Order. If Teobyte cancels an Order, in no event shall the amount paid to the Supplier exceed 50% of the total amount listed on the relevant Order.
8. Warranty. Supplier warrants that all Products delivered pursuant to this Order shall (i) be free from defects in material and workmanship, and (ii) conform to specifications in the Blanket Agreement, or, in absence of same, applicable samples or other descriptions furnished or adopted by Supplier or requirements furnished by Teobytev. To the extent the Products are not manufactured pursuant to designs and specifications furnished by Teobyte, the Products shall be free from design and specification defects. The foregoing warranties are in addition to all other express warranties given by Supplier to Teobyte or imposed by law. All warranties of Supplier shall run to Teobyte and its customers.
9. Indemnity. Supplier shall, at its own expense, defend and hold harmless Teobyte, its affiliates, directors, officers, representatives and customers from any loss or damage (including, without limitation, attorney fees) with respect to any action, claim or proceeding: (i) in connection with Supplier’s breach of the terms and conditions of this Order; (ii) that charges infringement of any patent, trademark, copyright or other proprietary right of any third party by reason of the sale or use of any Products; or (iii) to recover for personal injury or death, property damage or economic loss caused by any Products (regardless of whether such claim or demand arises under tort, negligence, contract, warranty, strict liability or any other legal theories), except to the extent such injury, damage or loss directly results from adherence to Teobyte’s specifications. Supplier’s obligations under this Paragraph 9 shall survive any termination of this Order.
10. Confidentiality. Supplier will (i) keep all Teobyte Information (as defined below) confidential and disclose it only to its employees who need to know such Teobyte Information in order for Supplier to supply the Products to Teobyte under this Order, and (ii) use Teobyte Information solely for the purpose of supplying the Products to Teobyte. Products manufactured based on Teobyte Information may not be used for Supplier’s own use nor sold by Supplier to third parties without Teobyte’s express prior written consent. “Teobyte Information” means all information provided to Supplier by Teobyte, its affiliates or their representatives in connection with the business, programs, goods and/or ancillary services covered by this Order, including, without limitation, proprietary or confidential information, pricing and other terms of this Order, specifications, formulas, compositions, designs, photographs, samples, prototypes or manufacturing methods. Teobyte Information also includes any materials or information that contain, or are based on, any Teobyte Information, whether prepared by Teobyte, Supplier or any other person and includes all items labeled “confidential” or “proprietary” or which Supplier should reasonably understand include confidential or proprietary content. Teobyte Information (or any portion thereof) will not be made accessible to third parties by or through Supplier without Teobyte’s prior written consent. Teobyte Information will be returned by Supplier to Teobyte upon request.
11. Intellectual Property. (a) Nothing in this Order will constitute nor be construed by Supplier as a grant of any express or implied license or any other right to use, for any purpose, patents, trademarks, copyrights or other intellectual property of Teobyte, its affiliates or its customers except as required in order for Supplier to perform its obligations hereunder. Supplier will not, with respect to any specifications or intellectual property delivered, directly or indirectly, under this Order, apply or submit to the U.S. Patent and Trademark Office or any other national or international patent or trademark office, for any property right protection for intellectual property supplied by Teobyte its affiliates or its customers. (b) Teobyte and its licensors retain full ownership of all specifications, designs, calculations, pictures, drawings, plans, test results, samples and other Teobyte Information furnished to Supplier by or on behalf of Teobyte in connection with the negotiation or the performance of this Order.
12. Miscellaneous. (a) Supplier may not assign this Order or any interest or right herein voluntarily or by operation of law without Teobyte’s prior written consent. (b) The validity, performance, and construction of this Order shall be governed by the laws of the State of Washington without regard to its conflict of laws provisions. The parties agree to exclude the application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement. (c)If the parties hereto have entered into a Blanket Agreement, any dispute, controversy or claim arising out of or in connection with, or relating to, this Order or any breach or alleged breach hereof shall be resolved in accordance with the terms of the Blanket Agreement. In the absence of a Blanket Agreement, such a dispute shall be resolved in the courts of Burlington, Washington, and each party hereby consents to such venue and jurisdiction. (d) The rights and remedies of Teobyte 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. (e) This Order may not be amended, waived or discharged except by an instrument in writing executed by the party against whom such amendment, waiver or discharge is to be enforced. Teobyte objects to and shall not be bound by any additional or different terms, whether printed or otherwise, in any purchase order or other communication from Supplier to Teobyte, unless specifically agreed to in writing signed by the parties and only with respect to those Products intended to be covered by that executed document. Any preprinted terms and conditions commonly known as “boilerplate” text from documents exchanged by the parties during the normal course of business shall be void and of no force or effect. (g) The failure of either party to enforce any rights resulting from breach of any provisions of this Order by the other party shall not be deemed a waiver of any rights relating to a subsequent breach of such provision or of any other right hereunder. (h) If any part of this Order is found invalid or unenforceable, the remainder of the provisions of this Order shall continue in full force and effect as if this Order had been executed with the invalid portion thereof eliminated. (i) All notices or other communication to be given under this Order must be in writing (by delivery by hand, mail, email or fax) and will be deemed given when (1) delivered personally, (2) sent by confirmed email or facsimile, (3) received by commercial overnight courier with written verification of receipt, or (4) sent by registered or certified mail, return receipt requested, postage prepaid. (j) Supplier will comply with all laws and regulations applicable to the performance of its obligations hereunder, including applicable export control laws and applicable procurement rules and regulations, and Supplier will defend and hold Teobyte harmless from loss, costs or damage, including attorneys’ fees resulting from any such violation. (k) The parties do hereby agree that this Order be drawn up in the English language only. (l) This Order may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which taken together shall constitute one and the same instrument.