(a) Subject to the first sentence of Section 1(b), these General Terms and Conditions for the Purchase and Sale of Goods and Services (these “Terms”) are the only terms which govern the purchase of goods (“Goods”) and/or services (“Services”) by Span.IO, Inc. (“Company”) from any entity or person (“Vendor”) that receives an Order (as defined below) from Company or is named on an Order. Notwithstanding anything herein to the contrary, if a binding written contract signed by both parties is in existence covering the purchase by Company of Goods and/or Services, the terms and conditions of said contract shall take precedence over these Terms and be controlling with respect to the purchase of the Goods and/or Services covered thereby.
(b) The purchase order or any order (collectively an “Order”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties with respect to the subject matter contained herein. SUBJECT TO THE LAST SENTENCE OF SECTION 1(a), THIS AGREEMENT PREVAILS OVER ANY PROPOSAL, ACKNOWLEDGMENT, VENDOR INVOICE, VENDOR QUOTE OR OTHER WRITINGS WITH RESPECT TO THE SUBJECT MATTER CONTAINED HEREIN. ANY ADDITIONAL TERMS FROM SUCH OTHER PROPOSAL, ACKNOWLEDGMENT, VENDOR INVOICE, VENDOR QUOTE OR OTHER WRITING WILL NOT BECOME A PART OF THIS AGREEMENT UNLESS BOTH PARTIES SO AGREE IN WRITING. VENDOR’S FULFILLMENT OF OR OTHER PERFORMANCE UNDER ANY ORDER CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.
2. Delivery of Goods and Performance of Services.
(a) Vendor shall deliver the Goods in the quantities and on the date(s) specified in the applicable Order or as otherwise agreed in writing by the parties (the “Delivery Date”). Vendor shall notify Company immediately of any situation that may delay or threaten to delay the timely delivery of any Order. All or any portion of any Order may, at Company’s option, be canceled without liability to Company if delivery is not made as or when specified in the Order and these Terms.
(b) Vendor shall deliver all Goods to the address specified in the Order (the “Delivery Point”) during Company’s normal business hours or as otherwise instructed by Company. Vendor shall pack all goods for shipment according to Company’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. Vendor must provide Company prior written notice if it requires Company to return any packaging material. Any return of such packaging material shall be made at Vendor’s sole risk and expense.
(c) Vendor shall provide the Services to Company as described and in accordance with the dates or schedule set forth on the Order and in accordance with the terms and conditions set forth in these Terms.
(d) Vendor acknowledges that time is of the essence with respect to the performance of Vendor’s obligations hereunder, including the delivery of the Goods and performance of the Services.
Company may reject all or any excess Goods or partial delivery of Goods. Any such rejected Goods shall be returned to Vendor at Vendor’s sole risk and expense. If Company elects to accept the delivery of Goods at the increased or reduced quantity, the Price (as defined below) for the Goods shall be adjusted on a pro-rata basis.
4. Shipping Terms.
Delivery of Goods shall be made FCA (Incoterms® 2022) the Delivery Point. The Order number must appear on all shipping documents, shipping labels, invoices, correspondence, and any other documents pertaining to the Order.
5. Title and Risk of Loss.
Title and risk of loss passes to Company upon delivery of the Goods to the Delivery Point.
6. Inspection and Rejection of Nonconforming Goods.
Company has the right to inspect the Goods on or after the Delivery Date. Company, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines that all or any portion of the Goods are nonconforming or defective. If Company rejects any portion of the Goods, Company has the right, effective upon written notice to Vendor, to: (a) rescind this Agreement in its entirety; (b) accept the Goods at a reasonably reduced price; or (c) reject the Goods and require replacement of the rejected Goods. If Company requires replacement of the Goods, Vendor shall, at its expense, promptly replace the nonconforming or defective Goods and pay for all related expenses, including transportation charges for the return of the defective Goods and the delivery of replacement Goods. If Vendor fails to timely deliver replacement Goods, Company may (i) replace them with comparable goods from a third party, and (ii) charge Vendor the cost thereof. In addition to the remedies set forth in this Section and available to Company under applicable law, Company may terminate this Agreement for cause pursuant to Section 16. Any inspection or other action by Company under this Section shall not reduce or otherwise affect Vendor’s obligations under this Agreement, and Company shall have the right to conduct further inspections after Vendor has carried out its remedial actions.
The price of the Goods or Services is the price stated in the Order (the “Price”). If no price is included in the Order, the Price shall be the price set out in Vendor’s published price list in force as of the date of the Order. Unless otherwise specified in the Order, the Price includes all packaging, transportation costs to the Delivery Point, insurance, customs duties and fees, and applicable taxes, including all sales, use or excise taxes. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Company.
8. Payment Terms.
Vendor shall issue an invoice to Company within sixty (60) days of the completion of delivery of Goods or Services to Company and only in accordance with these Terms. Company shall have no obligation to pay any invoice that was not initially submitted within the aforesaid timeframe. Vendor may only invoice Company for the cost of expenses or materials that Company pre-approved in writing (email shall suffice). Each invoice submitted by Vendor must (i) break-out all taxes in the invoice from the Price, (ii) reference the correct Company’s purchase order number, (iii) invoices for Services provided on a time and/or material basis shall contain detailed time entries with hours worked, personnel performing the work, cost of materials or goods used to perform the work, and nature of the work performed. Company shall pay all correctly invoiced amounts due to Vendor within sixty (60) days from Company’s receipt of such correctly issued invoice, except for any amounts disputed by Company in good faith. All payments hereunder shall be made in US dollars and made by ACH or check, unless otherwise approved by Company. Without prejudice to any other right or remedy it may have, Company reserves the right to set off, at any time, any amount owing to it by Vendor against any amount payable by Company to Vendor.
9. Vendor’s Obligations Regarding Services.
(a) on or before the date on which performance of the Services is to start, obtain, and at all times during the term of this Agreement, maintain in effect, all necessary licenses and, and comply with all laws, applicable to the provision of the Services;
(b) comply with all rules, regulations, and policies of Company, including security procedures concerning systems and data and remote access thereto, building security procedures, including the restriction of access by Company to certain areas of its premises or systems for security reasons, and general health and safety practices and procedures;
(c) maintain complete and accurate records relating to the provision of the Services under this Agreement, including records of the time spent and materials used by Vendor in providing the Services in such form as Company shall approve and make such records available to Company upon request;
(d) obtain Company’s written consent, which shall not be unreasonably withheld or delayed, prior to entering into agreements with or otherwise engaging any person or entity, excluding Vendor’s employees but including all subcontractors and affiliates of Vendor, to provide any Services to Company (each such approved subcontractor or other third party, a “Permitted Subcontractor”). Company’s approval shall not relieve Vendor of its obligations under this Agreement, and Vendor shall remain primarily liable for the performance of each such Permitted Subcontractor and for its compliance with all of the terms and conditions of this Agreement as if it was Vendor’s own employee. Nothing contained in this Agreement shall create any contractual relationship between Company and any Vendor subcontractor or supplier, including any Permitted Subcontractor;
(e) require each Permitted Subcontractor, prior to the performance of any Services, to be bound in writing by the confidentiality provisions of this Agreement, and, upon Company’s written request, to enter into a non-disclosure or intellectual property assignment or license agreement in form and substance reasonably satisfactory to Company;
(f) be responsible for the acts and omissions of its employees and Permitted Subcontractors, and indemnify Company for any cause of action threatened or brought against Company by or against Vendor’s employees and/or Permitted Subcontractors;
(g) ensure that all of its equipment used in the provision of the Services is in good working order and suitable for the purposes for which it is used, and conforms to all relevant legal standards and standards specified by Company; and
(h) keep and maintain any Company equipment in its possession in good working order and shall not dispose of or use such equipment other than in accordance with Company’s written instructions or authorization.
10. Change Orders.
Company may at any time, by written instructions and/or drawings issued to Vendor (each, a “Change Order”), order changes to the Services. Unless otherwise agreed upon by the parties, Vendor shall within ten (10) days of receipt of a Change Order submit to Company a firm cost proposal for the Change Order. If Company accepts such cost proposal, Vendor shall proceed with the changed Services subject to the cost proposal and the terms and conditions of this Agreement. Vendor acknowledges that a Change Order may or may not entitle Vendor to an adjustment in Vendor’s compensation or the performance deadlines under this Agreement.
(a) Unless otherwise agreed upon by the parties or if Vendor’s standard terms are more favorable, Vendor warrants to Company that for a period of twelve (12) months from the Delivery Date, all Goods will: (i) be free from any defects in workmanship, materials, and design; (ii) conform to all applicable specifications, drawings, designs, samples, and other requirements; and (iii) be free and clear of all liens, security interests or other encumbrances. Vendor further warrants to Company that for a period of twelve (12) months from the Delivery Date, (A) all software supplied by Vendor shall not contain any harmful code nor be intentionally designed to disrupt, disable, harm, or impede operation, or impair operation based on the lapse of time, including viruses, worms, time bombs, time locks, drop-dead devices, access codes, security keys, back doors or trap door devices; and (B) all Goods and Services provided by Vendor will comply with all applicable federal, state and local laws and regulations. These warranties survive any delivery, inspection, acceptance or payment of or for the Goods or Services by Company.
(b) Vendor warrants to Company that it shall perform the Services (i) using personnel having suitable skill, experience and qualifications and who are licensed, certified, and accredited as required by applicable law; and (ii) in a professional and workmanlike manner in accordance with best industry standards for similar services.
(c) The warranties set forth in this Section 11 are cumulative and in addition to any other warranty provided at law or in equity. Any applicable statute of limitations runs from the date of Company’s discovery of the noncompliance of the Goods or Services with the foregoing warranties. If Company gives Vendor notice of any such noncompliance, Vendor shall, at its own cost and expense, promptly, as applicable, (i) replace or repair the defective or nonconforming Goods and pay for all related expenses, including transportation charges for the return of the defective or nonconforming goods to Vendor and the delivery of repaired or replacement Goods to Company; and (ii) repair or re-perform the affected Services.
12. General Indemnification.
Vendor shall, at its expense, defend, indemnify and hold harmless Company and its affiliates, and its and their respective officers, directors, agents, representatives, successors, and assigns (each individually or collectively, “Indemnitee”), from and against any and all actions, causes of action, suits, claims, demands, damages, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees and disbursements and court costs, the cost of enforcing any right to indemnification hereunder, and the cost of pursuing any insurance providers) (collectively, “Losses”) arising out of or occurring in connection with the Goods and/or Services purchased from Vendor or Vendor’s negligence, willful misconduct or breach of this Agreement. Vendor shall not enter into any settlement for a cause of action or potential cause of action related to the Indemnitees without Company’s prior written consent.
13. Intellectual Property Indemnification.
Vendor shall, at its expense, defend, indemnify and hold harmless Company and any Indemnitee against any and all Losses arising out of or occurring in connection with any claim that Company’s or Indemnitee’s use or possession of the Goods or use of the Services infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. Notwithstanding anything herein to the contrary, Vendor shall have no obligation or liability with respect to any claim under this Section to the extent caused by (i) the combination by or at the direction of Company, without the consent of Vendor, of any Good furnished hereunder with any article not furnished by Vendor if the claim would not have arisen but for such combination; or (ii) the modification of any Good furnished hereunder by or at the direction of Company, without the consent of Vendor, if such claim would not have arisen but for such modification. In no event shall Vendor enter into any settlement without Company’s or Indemnitee’s prior written consent.
Vendor will secure and maintain insurance providing coverage for liabilities to third parties for bodily injury (personal injury) and damage to property in amounts sufficient to protect Company in the event of such injury or damage, which coverage will comply with any and all applicable laws, regulations or orders. Vendor further will maintain such additional types and limits of insurance as are customary for a company of similar size and similar operations to Vendor in the jurisdiction or jurisdictions in which Vendor’s operations take place.
15. Compliance with Law.
Vendor shall comply with all applicable laws, regulations and ordinances. Without in any way limiting the foregoing, Vendor shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. Vendor shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Vendor. Vendor assumes all responsibility for shipments of Goods requiring any government import clearance. Company may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on any of the Goods.
In addition to any remedies that may be provided under these Terms, Company may terminate this Agreement with immediate effect upon written notice to the Vendor, either before or after the acceptance of the Goods or the Vendor’s delivery of the Services, if Vendor has not performed or complied with any of these Terms, in whole or in part. If the Vendor becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then Company may terminate this Agreement upon written notice to Vendor. If Company terminates this Agreement for any reason, Vendor’s sole and exclusive remedy is payment for the Goods received and accepted and Services accepted by Company prior to the termination.
No waiver, omission or delay on the part of Company in requiring performance by Vendor or in exercising any right hereunder shall operate as a waiver of any provision hereof or of any right hereunder, and the waiver, omission or delay in requiring performance or exercising any right hereunder on one occasion shall not be construed as a bar to or waiver of such performance or right on any future occasion.
18. Confidential Information.
(a) If Company and Vendor have entered into a non-disclosure agreement (the “NDA”), then the NDA will cover any disclosure of confidential information under an Order. If the term of the NDA expires before the expiration or termination of the Order, then the term of the NDA will be automatically extended to match the term of the Order, but only for such Order. In the absence of an NDA between Company and Vendor, the parties agree that the following Section 18(b) will apply to the treatment of Confidential Information under an Order.
(b) For purposes of this Agreement, “Confidential Information” means information in written, electronic or oral form, regardless of medium, disclosed by Company to Vendor, including the following: inventions, models, software, products, methods, techniques, formulas, projects, developments, plans, research data, financial data, pricing data, personnel data, manufacturing and distributorship lists, customer and supplier lists, and any other materials or information relating to the business or activities of Company. The failure of Company to identify or mark Confidential Information as “confidential” or by some similar term shall not affect its status as the Confidential Information of Company. Confidential Information will not include any information that Vendor can demonstrate: (a) is or becomes part of the public domain through no breach by Vendor of this Section; (b) was rightfully in Vendor’s possession at the time of disclosure, without restriction as to use or disclosure; (c) Vendor rightfully receives from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; or (d) is independently developed by Vendor without access to or reliance upon any Confidential Information of Company. Vendor agrees to hold all Confidential Information in strict confidence, not to disclose it to others or use it in any way, commercially or otherwise, except as required to fulfill an Order. Vendor’s obligations with respect to non-disclosure of Confidential Information shall survive expiration or termination of the Order for five (5) years except that a trade secret shall remain confidential and subject to the terms of this Section for so long as the trade secret remains a trade secret under applicable law. Upon Company’s request, Vendor shall promptly return all documents and other materials received from Company. Vendor acknowledges that Company’s Confidential Information is valuable and unique and that disclosure in violation of this Section would result in irreparable injury to Company. In the event of a breach or threatened breach of this Section, Company shall be entitled to equitable relief, including injunctive relief, without having to post any bond or other form of security and without having to prove that money damages would be an inadequate remedy. Any such relief will be in addition to and not in lieu of appropriate relief in money damages.
19. Force Majeure.
Neither party shall be responsible or liable to the other party for any failure or delay in such party’s (the “Impacted Party”) performance under this Agreement due to a Force Majeure Event. A “Force Majeure Event” shall mean the reasonably demonstrated occurrence of any act or event beyond the reasonable control of, and not the result of the fault or negligence of, the Impacted Party that prevents the Impacted Party from performing its obligations under this Agreement, in full or part, and the Impacted Party is unable to avoid or overcome with the exercise of due diligence (including the expenditure of commercially reasonable sums). So long as the foregoing conditions are satisfied, a Force Majeure Event may include storms, nuclear emergency, natural disasters, acts of God, drought, flood, earthquake, fire, explosion, lightning, epidemic, war, riot, sabotage, terrorism or threat of terrorism, strike, lockout, epidemic or pandemic. During any such Force Majeure Event by Vendor, Company may elect to purchase any Goods or Services under an Order elsewhere and, at Company’s sole option, to reduce the quantity of Goods or Services deliverable under an Order.
Vendor shall not assign, transfer, delegate or subcontract any of its rights or obligations under this Agreement without the prior written consent of Company. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve Vendor of any of its obligations hereunder. Notwithstanding anything herein to the contrary, Company shall have the right to assign this Agreement, without the consent of Vendor, to (i) any entity controlling, controlled by or under common control with Company; (ii) any entity acquiring all or substantially all of the assets of Company; or (iii) any entity with which or into which Company may consolidate or merge; provided that any such assignee shall assume in writing all of the rights and obligations of Company under this Agreement arising from and after the effective date of such assignment.
21. Relationship of the Parties.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
22. No Third-Party Beneficiaries.
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
23. Governing Law.
All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of California, without giving effect to its principles of conflict of laws.
24. Submission to Jurisdiction.
Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of California in each case located in the City of San Francisco and County of San Francisco, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
Whenever, by the terms of this Agreement, notice, demand or other communication shall or may be given to either party, the same shall be in writing, shall reference this Agreement, and shall be addressed to the other party at its address first set forth herein, or to such other address or addresses as shall from time to time be designated by written notice by either party to the other in accordance with this Section. All notices shall be sent by registered or certified mail, return receipt requested, or by delivery by Federal Express or other comparable courier service providing proof of delivery, and shall be deemed duly given upon the date of actual receipt (or, if such date is not a business day, on the next succeeding business day).
If any term or provision of this Agreement or the application thereof to any person or circumstance shall to any extent be held invalid or unenforceable, the remainder of this Agreement or the application thereof to any person or circumstance shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
Provisions of these Terms which by their nature should apply beyond the expiration or earlier termination of this Agreement will remain in force after any such expiration or earlier termination, including the following provisions: Section 11 (Warranties), Section 12 (General Indemnification), Section 13 (Intellectual Property Indemnification), Section 14 (Insurance), Section 15 (Compliance with Laws), Section 17 (Waiver), Section 18 (Confidential Information), Section 20 (Assignment), Section 21 (Relationship of the Parties), Section 22 (No Third-Party Beneficiaries), Section 23 (Governing Law), Section 24 (Submission to Jurisdiction), Section 27 (Survival), and Section 29 (Limitation of Liability).
28. Amendment and Modification.
These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.
29. Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR MULTIPLE DAMAGES (INCLUDING DAMAGES FOR LOSS OF REVENUE, LOSS OF PROFITS OR LOSS OF GOODWILL), REGARDLESS OF THE FORM OF ACTION AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF THE FORM OF ACTION, COMPANY’S LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE VALUE OF THE ORDER GIVING RISE TO SUCH LIABILITY.
The words including and includes are not intended to be limiting and will mean “including without limitation” or “includes without limitation” as the case may be. The headings contained in these Terms are for convenience of reference only and will not affect the construction or interpretation of these Terms.
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