PURCHASE ORDER TERMS AND CONDITIONS
REV: NOVEMBER 26, 2018
1. ENTIRE AGREEMENT
These purchase order terms and conditions (Terms and Conditions) apply to all purchases by Ouster, Inc. from any entity or person (Seller) that receives an order from Ouster to buy goods and/or services, regardless of how the order was given to Seller (Order); however, if Ouster and Seller have any other signed agreement or agreements (Agreement) related to Ouster’s purchase from Seller, the terms of that written Agreement will control.
EXCEPT FOR ANY SIGNED AGREEMENT AS PROVIDED FOR IN SECTION 1, THESE TERMS AND CONDITIONS PREVAIL OVER ANY CONTRARY PROPOSAL, ACKNOWLEDGMENT, SELLER INVOICE, OR OTHER WRITING. ANY ADDITIONAL TERMS FROM SUCH OTHER PROPOSAL, ACKNOWLEDGMENT, SELLER INVOICE OR WRITING WILL NOT BECOME PART OF THESE TERMS AND CONDITIONS OR THE AGREEMENT BETWEEN OUSTER AND SELLER. SELLER’S ACCEPTANCE OR ACKNOWLEDGEMENT OF OUSTER’S ORDER, SELLER’S SHIPMENT OF GOODS OR ITS PROVISION OF SERVICES CONSTITUTES ACCEPTANCE OF THESE TERMS AND CONDITIONS. NOTWITHSTANDING ANY CUSTOM, PRACTICE OR COURSE OF DEALING, OUSTER MAY INSIST ON STRICT ADHERENCE TO THESE TERMS AND CONDITIONS.
Seller will not assign or subcontract its rights or obligations under an Order or any part thereof, including any payments due or to become due under an Order, without the written consent of Ouster. A change of control of more than 50% of the assets of Seller will be deemed an assignment and will require Ouster’s prior approval before Seller may assign an Order or any part thereof. If Ouster consents to an assignment or the use of a subcontractor, Seller will: (i) guarantee and will remain liable for the performance of all subcontracted obligations; (ii) indemnify Ouster for all damages and costs of any kind, subject to the limitations in Section 6 (Indemnification), incurred by Ouster or any third party and caused by the acts or omissions of Seller’s subcontractor; and (iii) make all payments to its subcontractors. If Seller fails to timely pay a subcontractor for work performed, Ouster will have the right, but not the obligation, to pay the subcontractor and offset any amount due to Seller by any amount paid to the subcontractor. Seller will defend, indemnify and hold Ouster harmless for all damages and costs of any kind, without limitation, incurred by Ouster and caused by Seller’s failure to pay a subcontractor. To the extent allowed by applicable law, no person who is not a party to an Order will be entitled to enforce or take the benefit of any of its terms whether as a result of applicable legislation, custom or otherwise.
4. FORCE MAJEURE
Neither Ouster nor Seller will be liable for delay or default in the fulfillment of an Order due to matters beyond the reasonable control of the party charged with performance, including an act of nature, accident, riot, war, act of terrorism, embargo or government interference. During any such delay or default by Seller, Ouster may elect to purchase the described goods or services in an Order elsewhere and, at Ouster’s sole option, apply such purchases to reduce the quantity of goods or services deliverable under an Order.
5. PRESENCE ON OUSTER'S PREMISES
If Seller's performance under an Order requires the presence of Seller, its agents, employees or subcontractors upon Ouster’s premises, Seller will comply with Ouster’s safety rules and all applicable laws and regulations including, but not limited to, the Federal Occupational Safety and Health Act and all regulations issued there-under and otherwise will take all necessary precautions to prevent the occurrence of any injury to person or property during the performance of providing such goods and/or services. Except to the extent that any such injury is due solely and directly to Ouster’s negligence, Seller will pay Ouster for any loss which may result in any way from any act or omission of Seller, its agents, employees or subcontractors, and Seller will maintain such Public Liability, Property Damage, and Employee's Liability and Compensation Insurance as will protect Ouster from said risks and from any and all claims under any applicable Worker's Compensation and Occupational Disease Acts.
6.1 Seller agrees to indemnify, defend and hold Ouster harmless from and against all loss, damages, liability, actions, judgments, costs and expenses, including reasonable attorney fees and costs, suffered, incurred or asserted, by or against Ouster, by reason of: (i) Seller's breach of a warranty; (ii) Seller's breach of any term or condition of an Order; (iii) a personal injury (including death) or property damage sustained by Ouster or a third party as a result of an act or omission of Seller, its agents or employees in fulfillment of an Order; or (iv) any claim by a third party that the goods provided by Seller to Ouster under an Order infringe a third party’s intellectual property rights, right of publicity or privacy, or any other proprietary rights.
6.2 Ouster will indemnify and hold Seller harmless from and against any and all claims as incurred, arising out of or in connection with: (i) Seller’s use of Ouster’s products or services in connection with Seller’s fulfillment of an Order; (ii) Seller’s use of information or materials provided to Seller by Ouster; (iii) infringement of a third party’s intellectual property rights or any other rights resulting from Seller’s adherence to Ouster’s written instructions; or (iv) personal injury (including death) or property damage sustained by Seller or a third party, as a result of an act or omission of Ouster, its agents or employees in fulfillment of an Order.
6.3 The indemnified party will provide the indemnifying party with prompt written notice of the claim and permit the indemnifying party to control the defense, settlement, adjustment, or compromise of any claim. The indemnified party may employ counsel at its own expense to assist it with respect to any claim. The indemnified party will have no authority to settle any claim on the indemnifying party’s behalf.
6.4 If a third party enjoins or interferes with Ouster’s use of any goods, then in addition to Seller’s obligations hereunder, Seller will use its best efforts to (i) obtain any licenses necessary to permit Ouster to continue to use the goods; (ii) replace or modify the goods as necessary to permit Ouster to continue use of the goods; or if (i) and (ii) are not commercially reasonable, then (iii) promptly refund to Ouster the amount paid for any goods for which a third party enjoins or interferes with Ouster’s use of the goods.
7. PROPRIETARY MATERIALS; PUBLICITY
7.1 If Ouster and Seller have entered into a Non-Disclosure Agreement (NDA) it will cover any disclosure of confidential information under an Order. If the term of the NDA expires before the expiration or termination of any Order, then the term of the NDA will be automatically extended to match the term of the Order. The parties will treat the terms and conditions and the existence of the Order as confidential information as defined in the NDA. In the absence of an NDA between Ouster and Seller, the parties agree that the following Sections 7.2 through 7.6 will apply to treatment of confidential information under an Order:
7.2 Confidential or proprietary information of any type, including but not limited to blueprints, drawings, specifications, dies, patterns, tools, business plans, processes and formulations furnished or paid for by Ouster pursuant to an Order, or acquired by Seller from Ouster in any manner while fulfilling an Order, will be and remain Ouster property, and will not be reproduced, used for the benefit of or disclosed by Seller to others without Ouster’s prior written consent. Seller will not use any confidential information of Ouster for any purpose not expressly permitted for purpose of fulfillment of Orders, and will disclose the confidential information of Ouster only to employees or subcontractors of Seller who have a need to know such confidential information for purposes of the Orders and who are under a duty of confidentiality no less restrictive than Seller’s duty hereunder. Seller will protect Ouster’s confidential information from unauthorized use, access, or disclosure in the same manner as Seller protects its own confidential or proprietary information of a similar nature and with no less than reasonable care. Seller agrees to take all reasonable precautions to prevent any unauthorized disclosure of such confidential information. Seller will not use confidential or proprietary information acquired during its fulfillment of Orders other than for fulfillment of Orders.
7.3 Seller will not disclose any terms of an Order to anyone other than its affiliates, attorneys, accountants, and other professional advisors under a duty of confidentiality except (a) as required by law, (b) pursuant to a mutually agreeable press release, or (c) in connection with a proposed merger, financing, or sale of its business (provided that any third party to whom the terms of the Order are to be disclosed is under a duty of confidentiality).
7.4 Seller will obtain Ouster’s written consent prior to any publication, presentation, public announcement, or press release concerning its relationship as a Seller to Ouster.
7.5 Seller agrees that it will not improperly use or disclose any proprietary information or trade secrets of any former or current client or other person, organization or entity with which Seller has a duty to keep in confidence information acquired by Seller, and that Seller will not bring onto the premises of Ouster any proprietary information belonging to such client, person, organization or entity unless consented to in writing by such client, person, organization or entity. Seller will indemnify Ouster and hold it harmless from and against all claims, liabilities, damages and expenses, including reasonable attorneys’ fees and costs of suit, arising out of or in connection with any violation or claimed violation of a third party’s rights resulting in whole or in part from Ouster’s use of Seller’s work product under an Order.
7.6 Upon Ouster’s request, termination of an Order or at the termination of Ouster’s relationship with Seller, Seller will deliver to Ouster (and will not recreate or deliver to anyone else) all of Ouster’s property or confidential information that Seller may have in its possession or control. At Ouster’s request or at the termination of Ouster’s relationship with Seller, unless Seller is advised by Ouster to the contrary in writing.
8.1 Ouster and Seller each warrant it has the full power to enter into the Order and to perform its obligations under the Order.
8.2 Seller warrants, if applicable to the good and/or service being purchased under the Order, that:
A) the goods delivered pursuant to an Order have been manufactured in accordance with the Fair Labor Standards Act of 1938, as amended, and with all regulations adopted pursuant to said Act;
B) the described goods in an Order do not infringe any right of publicity or privacy, or any intellectual property rights including patent, design, trade secret, copyright or trademark, either direct or contributory;
C) the described goods in an Order will comply with all applicable federal, state and local laws and regulations;
D) all finished goods delivered pursuant to an Order comply at their time of delivery to Ouster with the Federal Occupational Safety and Health Act and all applicable provisions thereunder;
E) software supplied by Seller does not contain any harmful code nor is it intentionally designed to (i) disrupt, disable, harm, or impede operation, or (ii) impair operation based on the lapse of time, including but not limited to viruses, worms, time bombs, time locks, drop-dead devices, access codes, security keys, back doors, or trap door devices;
F) the goods delivered pursuant to an Order will be: free and clear of all liens, encumbrances and security interests; free from defects in material and workmanship; in compliance with Ouster Supplier Quality Assurance Manual, Ouster Supplier Quality System Assessment process (QSA) and Production Part Approval Process (PPAP); of merchantable quality; and will otherwise conform to specifications furnished by Ouster, Seller’s quotation or proposal, Seller’s brochures or catalogs, and if none of the foregoing is applicable, then such goods are suitable for the intended use;
G) the goods delivered pursuant to an Order are fit for the particular purposes to which Ouster is to apply them as disclosed to Seller;
H) it has good title to the goods. If the goods or services are found to be defective in material or workmanship for a period of twelve (12) months from the date of delivery of the goods (hereafter Warranty Period), then Seller will, at its option and expense, repair or replace such defective goods or services;
I) except as otherwise provided herein, Ouster sole and exclusive remedy for breach of warranty or any other defect in the good or service is the repair or replacement, at Seller’s option and expense, of the defective goods or services or else at Seller’s election, return thereof and refund of the purchase price for those goods or services for which Seller received prompt written notice from Ouster during the Warranty Period. Ouster will hold any goods rejected at Seller’s risk and expense, including storage charges, while awaiting Seller’s return shipping instructions. Seller will bear all return shipping charges, including without limitation, insurance charges Ouster incurs on Seller’s behalf. Ouster may, in its sole discretion, destroy or sell at a public or private sale any rejected goods for which Ouster does not receive return shipping instructions within a reasonable time, and apply the proceeds, if any, first toward any storage charges; and
J) the above warranties are inapplicable to and exclude any defect, damage, or malfunction resulting from (i) normal wear and tear, (ii) misuse, negligence, or modification of the goods or services by Ouster or its agents, (iii) repair service provided by third parties, (iv) failure by Ouster to follow installation/operating manuals or instructions, (v) failure of parts or components or services not provided by Seller, or (vi) any other cause outside Seller’s reasonable control. THE WARRANTIES SET FORTH ABOVE ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
9. EQUAL OPPORTUNITY
The provisions of Executive Order 11246 as amended by Executive Order 11375 and all orders, statutes, rules and regulations, together with amendments thereto are hereby incorporated by reference and as well as those pertaining to Nonsegregated Facilities, 32 Fed. Reg. 7439; Handicapped Workers, 41 CFR 60-471.4 and .5; Disabled Veterans and Veterans of the Vietnam Era, 41 CFR 60-250.4 and .5; Minority Business Enterprises, 41 CFR 1-1.1310.2 (a) and (b) Subcontracting; Small Business Concern, Fed Reg. Vol. 95 No. 92; and Women-owned Business, Fed. Reg. No. 92, and Seller represents by acceptance of an Order that it will comply with same to the extent that they are applicable to the manufacture and/or sale of goods under an Order.
10. PRICE; TAXES; QUANTITY; QUALITY
Unless otherwise specified in an Order, the price for goods includes all charges such as shipping and delivery charges, duties, customs, tariffs, imposts and government-imposed surcharges. Seller’s invoice will break-out from the price all such charges. No price changes from those shown on an Order will be accepted unless authorized in writing by Ouster prior to shipment. Unless otherwise stated on an Order, the prices stated include all federal taxes or duties and exclude all state and local taxes applicable to an Order on the date of the Order. If Ouster provides Seller a resale tax ID, then Seller will not charge Ouster tax on an Order. Seller’s invoice will break-out from the price all taxes. Seller will use best efforts to assist Ouster in all legal efforts to minimize taxes resulting from the performance of each Order. Neither the quantity nor quality of the goods delivered by Seller to Ouster will differ from those specified on an Order (or specified in any specifications incorporated into an Order), nor will any other modifications of an Order be effective unless such modification is first authorized or accepted by Ouster. Seller will make no shipment of nonconforming goods, whether as an accommodation or otherwise, unless first authorized in writing by Ouster.
11. SHIPPING/ARRIVAL DATE; TITLE; DELIVERY; INSPECTION; ACCEPTANCE
11.1 The shipping and/or arrival date specified in an Order is critical. Orders will be shipped and work completed within the time specified in an Order, failing which Ouster reserves the right, upon notice to Seller, to cancel an Order or to purchase the described goods or services from a vendor of Ouster’s choice and charge Seller with all loss or damage occasioned thereby, unless deferred shipment or services have been authorized by Ouster’s authorized representative. Seller will deliver all goods and services to Ouster F.C.A. (Incoterms 2010) Ouster’s plant or shipping point designated by Ouster, at which point the following will pass from Seller to Ouster: (i) title to the goods and (ii) risk of loss. Seller will pay, or reimburse Ouster, for all shipping and delivery charges including, without limitation, customs, duties, costs, taxes and insurance against loss or damage. Acceptance of goods will be in accordance with Section 11.3 herein, and not via of physical delivery of such goods.
11.2 No charges will be allowed for containers, coating, boxing or other packaging unless expressly stated in an Order. In the absence of any specifications Ouster may provide, Seller will preserve, pack, package and handle the goods so as to protect the goods from loss or damage and in accordance with best commercial practices. Any damage to goods not packed to ensure proper protection of said goods will be charged to Seller. A complete packing list must accompany each shipment.
11.3 All goods and services are received subject to Ouster acceptance or rejection. Ouster may reject any or all goods or services that do not conform to the applicable requirements within ten (10) business days of Seller’s delivery. If rejected, at Ouster’s option, Ouster may (i) return the non-conforming goods to Seller for a refund or credit at Seller’s risk, and all handling and transportation charges will be assumed by Seller; (ii) require Seller to replace the non-conforming goods or services at Seller’s cost; or (iii) require Seller to repair the non-conforming goods or services to meet the requirements at Seller’s cost. As an alternative to (i) through (iii), Ouster may accept the non-conforming goods or services conditioned on Seller providing a refund or credit in an amount Ouster reasonably determines to represent the diminished value of the non-conforming goods or services. Ouster’s payment to Seller for goods or services prior to Ouster’s timely rejection of such goods or services will not be deemed as acceptance by Ouster.
Ouster will pay Seller the price in accordance with the payment terms set forth in the Order. Seller’s invoice will include Seller’s name, the Order number, details of the Order and, if required in the Order, Seller’s certification of conformance of the goods and services to the requirements. Payment will be in the currency of the country in which the Ouster entity or affiliate identified in the Order is located, and if the price set forth in the Order is not in the local currency, then Ouster will determine the local currency equivalent of the price as of date of payment. Ouster may, at any time, set-off any amounts Seller owes Ouster against any amounts Ouster owes to Seller or any of its affiliated companies. Payment for goods specified in an Order will not constitute an acceptance of such goods; acceptance will be in accordance with Section 11.3.
13. OWNERSHIP; LICENSE
13.1 Unless otherwise agreed in an Agreement provided for in Section 1, and except as provided in Section 13.2, Ouster is the sole and exclusive owner of all goods supplied under an Order, and Seller hereby irrevocably assigns and transfers to Ouster all of its worldwide right and title to, and interest in, the goods, including all associated intellectual property rights.
13.2 Unless otherwise specified in a statement of work, each party owns all right, title, and interest in and to any of its pre-existing materials and intellectual property. Seller hereby grants Ouster a perpetual, irrevocable, worldwide, transferable, royalty-free, nonexclusive license, with the right to sublicense and authorizes the granting of sublicenses, to use and reproduce Seller's preexisting materials in the goods to the extent necessary for Ouster’s exercise and exploitation of its rights in the goods.
13.3 Unless otherwise specified in a statement of work, Seller will obtain and assign to Ouster a non-exclusive, royalty-free, worldwide, perpetual, irrevocable, transferable, sub-licensable license to use all third-party intellectual property rights incorporated into, required to use, or delivered with the goods. Seller will deliver copies of the above releases and licenses to Ouster upon Ouster’s request.
14.1 In addition to and without prejudice to Ouster’s right to cancel for any delivery failure, Ouster may terminate an Order at any time prior to delivery of goods or services covered by an Order. Ouster will have no obligation for cancellation charges for standard stock merchandise. For goods manufactured to Ouster’s unique specifications, upon receipt of notice of cancellation, Seller will inform Ouster of the extent to which it has completed performance as of the date of the notice, and Seller will deliver to Ouster whatever goods then exist. Ouster will pay Seller for all work performed and accepted through the effective date of cancellation. Ouster’s sole liability for cancellations relating to goods manufactured to Ouster unique specifications will be limited to Seller’s actual direct out-of-pocket costs through the date notice of cancellation is received by Seller. In no event will Ouster’s liability to Seller be more than the total price of a cancelled Order.
14.2 Ouster reserves the right to immediately cancel an Order in whole or in part if Seller breaches any of the warranties herein.
14.3 Either party may terminate the Order immediately by delivering written notice to the other party upon the occurrence of any of the following events: (i) a receiver is appointed for either party or its property; (ii) either party makes a general assignment for the benefit of its creditors; (iii) either party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor's relief law, if such proceedings are not dismissed within 60 days; or (iv) either party is liquidating, dissolving, or ceasing to do business in the ordinary course.
14.4 Either party may terminate the Order immediately by delivering written notice to the other party for any material breach not cured within 30 days of receipt of notice of the breach. Ouster will have no further payment obligation to Seller under any terminated Order if Ouster terminates the Order under this Section 14.4.
14.5 Any obligations or duties which, by their nature, extend beyond the expiration or termination of the Order will survive the expiration or termination of the Order.
15.1 NOTWITHSTANDING ANYTHING ELSE IN THE ORDER OR OTHERWISE, OUSTER WILL NOT BE LIABLE TO SELLER WITH RESPECT TO THE SUBJECT MATTER OF THE ORDER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS OF THE AMOUNT OUSTER PAID TO SELLER IN THE TWO MONTHS PRECEDING THE EVENT OR CIRCUMSTANCE GIVING RISE TO SUCH LIABILITY.
15.2 IN NO EVENT WILL OUSTER BE LIABLE TO SELLER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS ARISING OUT OF, OR IN CONNECTION WITH, THE ORDER, WHETHER OR NOT OUSTER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
15.3 THE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. NOTHING IN THE ORDER LIMITS EITHER PARTY'S LIABILITY FOR BODILY INJURY OF A PERSON, DEATH, OR PHYSICAL DAMAGE TO PROPERTY OR ANY LIABILITY WHICH CANNOT BE LIMITED UNDER APPLICABLE LAW.
Seller 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 Ouster in the event of such injury or damage, and will be in compliance with any and all laws, regulations or orders addressing the liabilities of an employer to its employees for injuries and disease suffered in connection with employment. Seller further will maintain such additional types and limits of insurance as is customary for a company of similar size and similar operations to Seller in the jurisdiction or jurisdictions in which Seller’s operations take place.
17. COMPLIANCE WITH LAWS
Seller represents and warrants that it will comply with all applicable local and national laws and regulations pertaining to its performance of its obligations under the Order. In particular and without limitation, Seller will not act in any fashion or take any action that will render Ouster liable for a violation of any applicable anti-bribery legislation (including without limitation, the U.S. Foreign Corrupt Practices Act and the UK Bribery Act 2010), which prohibits the offering, giving or promising to offer or give, or receiving, directly or indirectly, money or anything of value to any third party to assist it, them, or Ouster in retaining or obtaining business or performance hereunder. Seller’s failure to comply with this provision will constitute a material breach of the Order.
18. GOVERNING LAW; VENUE AND ATTORNEYS' FEES AND COSTS
All disputes related to an Order will be governed by and construed in accordance with the laws of the State of California without regard to any contrary conflicts of law principles. All legal actions arising under an Order will be initiated and maintained in the state or federal courts in San Francisco, California. Seller and Ouster irrevocably consent to such jurisdiction and venue. The parties specifically waive application of the UN Convention on Contracts for the International Sale of goods. The prevailing party in any legal proceeding or arbitration relating to an Order will be entitled to recover its reasonable attorneys’ fees and costs incurred in connection with such proceeding, and any appeal, as part of the same proceeding.
19.1 Any notice to be given under the Order will be in writing and addressed to the party at the address stated in the front of the Order. Notices will be deemed given and effective (i) if personally delivered, upon delivery, (ii) if sent by an overnight service with tracking capabilities, upon receipt; (iii) if sent by fax or electronic mail, at such time as the party which sent the notice receives confirmation of receipt by the applicable method of transmittal; or (iv) if sent by certified or registered mail, within five days of deposit in the mail.
19.2 If any court of competent jurisdiction holds that any provision of the Order is illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining provisions of the Order will not be affected or impaired, and all remaining terms of this Order remain in full force and effect, provided that this provision will not be applied to defeat the intent of the parties.
19.3 A party’s election not to insist on strict performance of any requirement of the Order will not operate or be construed to waive any future omission or breach, or any other provision of the Order. Any waiver by Ouster of any term, condition or provision will not be construed to be a waiver of any other term, condition or provision hereof nor will such waiver be deemed a waiver of any subsequent breach of the same term, condition or provision.