These terms and conditions and associated documents (collectively the “Terms”) are issued on behalf of Airgain, Inc. or by its affiliate in each case identified on the face of the applicable purchase order (“Purchase Order” or “P.O.”) as the “Buyer” and will apply to all orders issued to you as the Seller of goods (“Goods”) and services (“Services”) as “Seller.” The term “Supplies” includes both Goods and Services. Purchase Orders and other associated purchasing documents will be valid without signature if issued by Buyer through its computer system or other electronic means. The reference to Purchase Order herein shall include a blanket Purchase Order, release, or similar documents issued by Buyer to Seller.
1. OFFER & ACCEPTANCE
(a) A Purchase Order (or release against a blanket Purchase Order) is an offer to Seller by Buyer to enter into the purchase and supply agreement for the Supplies it describes.
(b) Seller has read and understands the Purchase Order and agrees that Seller’s written acceptance, provision of goods or commencement of any work, service or other action in furtherance of performance under the Purchase Order, whichever may occur first, shall constitute Seller’s acceptance of the Purchase Order. Acceptance is expressly limited to the terms of Buyer’s offer; any proposal for additional or otherwise different terms or any attempt by Seller to vary in any degree any of the terms of the Purchase Order is hereby rejected in the absence of Buyer’s written acceptance and such different terms shall not become a part of the Purchase Order or any contract between Buyer and Seller. Any such proposal shall not operate as a rejection of this offer unless the variances are in the terms of the description, quantity, price or delivery schedule of the Goods or Services, but shall be deemed a material alteration and accordingly, this offer shall be deemed accepted by Seller without such additional or different terms. Once accepted, such Purchase Order together with these terms and conditions will be the complete and exclusive statement of the purchase agreement.
If the Parties have executed a separate written agreement signed by both Parties governing Seller’s provision of such Supplies to Buyer (the “Existing Agreement”), the Existing Agreement will govern Seller’s provision of such Supplies to Buyer and these Terms and Conditions shall only be applicable when referenced or otherwise incorporated into such Existing Agreement.
(a) Buyer, at any time, by way of written notice to Seller, may change the design (including drawings, materials and specifications), processing, method of packing and shipping, and the date or place of delivery of the Supplies.
(b) If any such change affects cost or timing, Buyer will adjust the purchase price and delivery schedules equitably.
(c) Seller will not make any change in the design, processing, packing, shipping or date or place of delivery of the Supplies unless done pursuant to Buyer’s instructions or with Buyer’s written approval.
3. DELIVERY DATES, RELEASES
Delivery of the Goods and performance of the Services shall be in accordance with the dates set forth in the P.O. (“Delivery Date”). For domestic deliveries, title to the Goods shall transfer to Buyer upon delivery, notwithstanding the acceptance period set forth above in Section 1 (Offer & Acceptance). If delivery dates are not specified in a Purchase Order, Seller will procure materials and fabricate, assemble, and ship Supplies or provide services only as authorized in shipment releases issued to Seller by Buyer. All items provided on a Purchase Order that are to be delivered on the same date shall be delivered together. No partial shipments or deliveries are permitted, and all orders must be fulfilled in full in accordance with the terms of the applicable Purchase Order, unless prior written approval has been provided by Buyer (which may be by email or other electronic notice). Buyer may return over-shipments to Seller at Seller’s risk and expense for all packing, handling, sorting, and transportation. Buyer, at any time may change or temporarily suspend shipping schedules specified in a Purchase Order or shipment release or other written instructions issued by Buyer pursuant to this Section. Time and quantity are of the essence in any Purchase Order. Unless otherwise agreed, delivery times specified are the times of delivery of the Supplies at Buyer’s designated place of delivery or destination.
For all software, including without limitation device drivers, firmware and any necessary software for the proper operation and support of the Goods (collectively “Software”), Buyer and its affiliates are granted a perpetual, non-exclusive, transferable, irrevocable, royalty-free, worldwide right and license to use, reproduce, prepare derivative works of and distribute the Software in connection with Buyer’s distribution and support of the Goods including without limitation distribution in electronic form (e.g. via Buyer’s website) irrespective of whether or not Buyer exercises its rights to such license hereunder. Seller understands and agrees that any terms contained in any click-through, click-wrap, EULA, online terms, or other purported agreement delivered or made available (whether electronically or otherwise) with the Software (including any updates, upgrades, bug fixes, or other related deliveries) licensed under the Agreement shall not apply, regardless of any electronic or deemed acceptance by Buyer. Seller agrees to provide all updates and modifications to the Software to Buyer during the term of the Agreement without additional charges. Any license fees for Software shall be included in the purchase price or any other amounts payable under the Agreement.
Buyer at its option may reject and return at Seller’s risk and expense, or retain and correct, Supplies that fail to conform to the requirements of a Purchase Order even if the nonconformity does not become apparent until it is utilized or implemented by Buyer. If Buyer elects to correct the Supplies, it will consult with Seller on the method of correction. Seller will reimburse Buyer for all reasonable expenses resulting from rejection or correction.
5. PRICE, CURRENCY, INVOICES
Buyer shall pay for the Goods and/or Services within the time frame specified in in the P.O. following both Buyer’s acceptance of the Goods and/or Services and receipt of Seller’s properly submitted, undisputed invoice, whichever is later.Unless a Purchase Order specifically states otherwise, all payments for Goods and Services shall be made in the local currency of the Seller’s location for the Goods or in the case of Services, in the local currency of the Seller’s location from which the Services are provided.
All invoices must comply with applicable laws and include the following in order to ensure proper tax treatment and avoid unnecessary processing delays:
(a) Buyer’s applicable P.O. number
(b) A unique invoice number
(c) Seller’s contact information (including phone and email address)
(d) Description of Goods and/or Services, project name and/or items purchased. Descriptions must match the P.O. line item as closely as possible including, as appropriate size, unit price, quality, and extended totals. For the avoidance of doubt, if a P.O. contains multiple lines, all invoices must indicate the appropriate line Seller is billing against.
(e) When Value Added Tax, goods and services tax or other equivalent local tax (VAT) is applicable, all VAT amounts must be broken out and clearly identified.
(f) Invoice date
(g) If applicable, shipping date and ship to location(s)
(h) Appropriate payment information (EFT, ACH, Wire).
“Taxes” or “Tax” include all forms of taxation including but not limited to, withholdings, income tax, capital gains tax, duties, imposts, contributions (including social security contributions), rates and levies, sales tax, services tax, business tax, goods and services tax and any other form of value-added tax imposed by any governmental authority, whenever imposed and whether chargeable directly, indirectly or primarily against or attributable directly, indirectly or primarily to such company or any other person and all penalties, charges, fines, costs and interest relating thereto.
The total price specified for Supplies on a Purchase Order will include all elements of freight, duty and tax as specified in the relevant delivery term with the exception of value added tax (VAT), if applicable, which will be shown separately on Seller’s invoice.
(a) SELLER WARRANTY FOR GOODS: The Seller warrants that during the applicable Warranty Period (as defined in this Section 7(b)) the Goods will:
(i) Conform precisely to the Purchase Order and in all respects to the drawings, specifications, Statements of Work, samples and other descriptions and requirements relating to the Goods that have been furnished, specified or approved by the Buyer;
(ii) Comply with all laws and regulations in force in the countries in which the Goods are to be provided;
(iii) Be merchantable and of good material and workmanship;
(iv) Be free from defects in design to the extent furnished by the Seller, its related companies or their subcontractors, even if the design or specification has been approved by the Buyer;
(v) Be free from defects in materials and workmanship; and
(vi) Be suitable for their intended use by the Buyer, including the specified performance in the facility or equipment specified by the Buyer and the environment in which the Goods are or reasonably may be expected to perform.
(b) The warranty period for Supplies shall be the greater of two years after final acceptance by Buyer, one year after sale to the final customer of Buyer, or the period specified on Buyer’s Purchase Order. Seller assigns to Buyer all warranties from manufacturers and Sellers of any goods, services or materials incorporated into the Supplies and from any subcontractors who perform work on the Goods or assist in performance of the Services.
(c) SELLER WARRANTY FOR SERVICES. The Seller warrants that the Services will:
(i) Conform precisely to the Purchase Order and in all respects to the specifications, statements of work, and other descriptions and requirements relating to the Services that have been furnished, specified or approved by the Buyer;
(ii) Comply with all laws and regulations in force in the countries in which the Services are to be provided;
(iii) Be suitable for their intended use by the Buyer, including the specified performance in the facility or equipment specified by the Buyer and the environment in which the Services are or reasonably may be expected to perform; and
(iv) Be provided by appropriately qualified and trained personnel, with due care and diligence and to such high standard of quality as it is reasonable for the Buyer to expect in the circumstances
(d) CLAIM FOR BREACH OF WARRANTY. The Seller’s Warranty and any rights of the Buyer to make a claim under it will be effective even if the Buyer has accepted all or a portion of the Goods and/or Services.
8. DEFENSE AND INDEMNITY
(a) To the full extent permitted by applicable law, Seller will indemnify Buyer, its directors, officers and employees and those of its Related Companies for all expenses (including attorney fees, settlements, and judgments) incurred by Buyer in connection with all claims (including lawsuits, administrative claims, regulatory actions, and other proceedings to recover for personal injury or death, property damage, or economic losses) that are related in any way to Seller’s representations, performance or obligations under a Purchase Order, including claims based on Seller’s breach of warranty and claims for any related violations of any applicable law, ordinance or regulation or government authorization or order. Seller’s obligation to indemnify under this Section will apply regardless of whether the claim arises in tort, negligence, contract, warranty, strict liability or otherwise except to the extent of the negligence or willful misconduct of Buyer.
(b) If Seller provides services to Buyer on Buyer’s premises, Seller will examine the premises to determine whether they are safe for such services and will advise Buyer promptly of any situation it deems to be unsafe. Seller’s employees, contractors and agents will not possess, use, sell or transfer illegal drugs, medically unauthorized drugs or controlled substances, or unauthorized alcohol, and will not be under the influence of alcohol or drugs on Buyer’s premises. Seller shall be exclusively responsible for, shall bear, and shall relieve Buyer from liability for all loss, expense, damage or claims resulting from bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person or persons, or on account of damage to or destruction of property, including that of Buyer, arising out of, or in connection with the performance of work on Buyer’s premises except that Seller shall not be responsible for or relieve Buyer from liability for claims arising from the willful misconduct or the sole negligence of Buyer.
9. DISCLAIMER AND LIMITATION OF LIABILITY
(a) LIMITATION ON TYPES OF DAMAGE. Subject to section 9(c), Buyer shall not be liable to Seller for any special, incidental, indirect, exemplary or consequential loss or damage, arising out of the agreement or any resulting obligations, under any theory of liability, whether in an action for or arising out of breach of contract, tort (including negligence), breach of statutory duty, or any other theory or cause of action, regardless of whether the loss or damage was foreseeable and regardless of whether Buyer was advised of or was aware of the possibility of such loss or damage.
(b) GENERAL CAP ON LIABILITY. Subject to section 9(c), the entire liability of Buyer to Seller (or any third party claiming through Seller), and the sole and exclusive remedy of Seller, for any claim or cause of action arising out of or related to the agreement or any resulting obligation (whether in contract, tort (including negligence), breach of statutory duty, or otherwise) shall not exceed the purchase price specified in the P.O. (less any payments made by Buyer against said P.O.) for the goods or services which are the subject of such claim or cause of action.
(c) APPLICABILITY AND ALLOCATION OF RISK. Nothing in the agreement excludes or limits either party’s liability for personal injury or death to the extent caused by such party’s negligence or intentional misconduct, for fraud or fraudulent misrepresentations, or matters for which liability cannot be excluded or limited under applicable law. Limitations set forth above in this section 8 (disclaimer and limitation of liability) shall be deemed to apply to the maximum extent permitted by applicable law and notwithstanding the failure of the essential purpose of any limited remedies set forth in the agreement. The parties acknowledge and agree that they have fully considered the foregoing allocation of risk set forth in this section 9 and find it reasonable, and that the foregoing limitations are an essential basis of the bargain between the parties.
10. INFRINGEMENT AND PROPRIETARY RIGHTS
(a) Seller at its expense will indemnify and hold Buyer harmless with respect to every claim that may be brought against Buyer or others that use the Supplies of a Purchase Order, for any alleged infringement of any present or future patent, copyright, industrial design right or other proprietary right based on Seller’s activity under a Purchase Order on the one hand, or, on the other hand, the manufacture, sale, or use of the Supplies (i) alone, (ii) in combination by reason of their content, design or structure, or (iii) in combination in accordance with Seller’s recommendations. Seller will investigate and defend or otherwise handle every such claim, and at Buyer’s request, assist Buyer in Buyer’s investigation, defense, or handling of any such claim. Seller will pay all reasonably related expenses and damages or settlement amounts that Buyer and others selling Buyer’s products or using the Supplies of a Purchase Order may sustain by reason of each such indemnified claim. Seller’s obligations will apply even though Buyer furnishes all or any portion of the design and specifies all or any portion of the processing used by Seller.
(b) Seller grants to Buyer a nonexclusive, royalty free, permanent, paid-up, irrevocable license with a right to grant a sublicense to any of its Related Companies to rebuild and have rebuilt the Supplies of a Purchase Order.
(c) Seller will not sell or otherwise dispose or transfer any product, that is supplied to Buyer under a Purchase Order and that infringes any intellectual property right of Buyer or any of its Related Companies, to any party other than Buyer, except where specifically authorized by Buyer in writing.
11. INFORMATION AND DATA
(a) In the course of performing the services, Seller may receive, gain access to, or otherwise become exposed to certain confidential or proprietary information, including, but not limited to, trade secrets, customer information, business and/or technical information, business plans, products, services and/or intellectual property of Buyer, its affiliates or its customers (the “Information”). Seller shall treat all Information as confidential, whether or not such Information was identified or marked as confidential or proprietary at the time of the disclosure, and Seller shall not disclose, or permit the disclosure of, any Information to any person (including but not limited to any company affiliated with Seller and any subcontractor of Seller), without the prior written consent of Buyer. Seller shall limit the use, reproduction and disclosure of the Information within its organization to only those of Seller’s employees or Buyer-approved subcontractors with a strict need to know for the limited purpose of performing its obligations under the Agreement. Seller shall ensure that any of its Personnel to whom it gives access to the Information under the terms of the Agreement have executed a written agreement with Seller obligating such individuals to comply with the obligations of confidentiality set forth in this Section 11.
(b) At Buyer’s request, Seller will furnish to Buyer all other information and data of Seller which Buyer deems necessary to understand the operation and to maintain the goods delivered under a Purchase Order, and to understand and apply the information and data of Section 11(a)
(c) Unless otherwise indicated in writing by Buyer, Seller will use reasonable care to prevent disclosing to others and will use only for the benefit of Buyer, (i) the technical information and data furnished by Buyer or developed or acquired by Seller in its work under a Purchase Order, prior development agreement or early sourcing agreement for Supplies related to or using such technical information or data, and (ii) information relating to any portion of Buyer’s business that Seller may acquire in the course of Seller’s activities under a Purchase Order, prior development agreement or early sourcing agreement. This obligation shall continue so long as any Purchase Order for Supplies related to or using such technical information or data is in effect and for a period of two years thereafter. This obligation will not apply to information that is or becomes publicly known through no fault of Seller. Nevertheless, Seller may disclose the information and data of subsections (f)(i) and (f)(ii) hereof to third parties if this is required for Seller to fulfill its duties under a Purchase Order and such third parties have agreed to conditions at least as stringent as those contained herein.
(d) Any violation of this Section 11 shall be deemed a material breach. Seller agrees that the remedies at law for a breach by it or its Personnel of the terms of this Section 11 may be inadequate and that monetary damages resulting from such breach may not be readily measured. Accordingly, in the event of a breach or threatened breach by Seller of the terms of this Section 11, Buyer shall be entitled to immediate injunctive relief without the requirement of posting a bond. Nothing herein shall prohibit Buyer from pursuing any other remedies that may be available to it for breach of this Section 11 or any incident related thereto and therefore Buyer shall have the right to an injunction or other equitable relief without prejudice to any other rights permitted by law.
Prior to the utilization of subcontractors, Seller shall first obtain prior written consent from Buyer and ensure that all subcontractors execute written agreements with Seller containing provisions necessary to comply with the terms of the Agreement.
Seller may not make any reference to Buyer or any of its Related Companies or use of Buyer’s trademarks or logos in Seller’s advertising or publicity materials without prior written permission of Buyer’s marketing or legal department.
14. RIGHT TO AUDIT
Seller and its subcontractors shall keep accurate records and books of accounting showing all charges and related expenses incurred in performance of Services hereunder. Said records shall be maintained in conformance with generally accepted accounting principles and procedures. Buyer shall have the right to inspect such records including any books, ledgers, financial statements, correspondence, documents and other materials and perform audits for three (3) years from the completion of the Services or delivery of the Goods (whichever is later) on Seller’s or subcontractor’s premises during normal business hours, or assign said audits to outside parties. Seller agrees to fully reimburse any recoveries plus reasonable audit costs in the event financial irregularities are discovered resulting from an audit. Buyer shall maintain the right to extend payment terms until such time as corrections have been made. The substance of this paragraph shall appear in all of Seller’s subcontracts.
(a) Unless prohibited by applicable law, Buyer may terminate the Agreement or any portion thereof at any time prior to completion, with or without cause, effective immediately upon written notice to Seller. In the event that applicable law prohibits termination by Buyer upon notice, termination under this Section 15(a) shall be effective ten (10) calendar days following Seller’s receipt of such notice (or such other period as prescribed by applicable law under the circumstances).
(b) Either Party may terminate the Agreement upon written notice to the other Party if the other Party materially breaches any provisions of the Agreement and fails to remedy that breach within thirty (30) calendar days after written notice specifying the nature of the breach.
(c) Upon receipt of a termination notice, for any reason, Seller shall mitigate its damages and stop incurring any additional costs and expenses. Within two (2) weeks of the termination or expiration of the Agreement, Seller shall: (i) return to Buyer all equipment and other properties owned by Buyer or its affiliates, and (ii) in Buyer’s sole discretion, either return all documents and other materials containing any Buyer confidential information, all Work Product, and all copies thereof made by Seller or certify destruction of the same. Buyer’s sole obligation shall be to pay Seller the fees due for Services completed and/or Goods delivered before such expiration or termination and shall also be entitled to a full refund of any and all pre-payments made to Seller prior to the date of termination or expiration.
Neither the Agreement, nor any rights, obligations, and other interests of Seller may be assigned by Seller, in whole or in part, by operation or law, in connection with a change in control, or otherwise, without the prior written consent of Buyer, and any purported assignment of same shall be void. Notwithstanding the foregoing, Buyer may freely assign all or part of the Agreement, and its rights, obligations and interests under the Agreement without the prior written consent of Seller. The Agreement shall be binding upon and inure to the benefit of the Parties and their successors and permitted assigns.
17. REMEDIES, WAIVER
The individual remedies reserved in a Purchase Order will be in addition to any remedies provided by law. No waiver of any breach of any provision of a Purchase Order will constitute a waiver of any other breach of such or any other provisions
To the extent any provision (or portion of a provision) of the Agreement is held by governing authority to be illegal, otherwise invalid, or incapable of being enforced, such provision (or such portion of such provision) shall be excluded to the extent of such invalidity or unenforceability; all other provisions (and the remaining portion of the applicable provision) of the Agreement shall remain in full force and effect; and, to the extent permitted and possible, the invalid or unenforceable provision (or portion of such provision) shall be deemed replaced by a term that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable provision.
Seller agrees that it will comply, and that all Goods delivered and Services performed hereunder will comply, with all applicable laws, regulations, and permit requirements including but not limited to labor, safety and environmental laws. Seller agrees to provide to Buyer upon request, any documentation or certification as may be reasonably required for Buyer to demonstrate its compliance with such applicable laws, regulations, and permit requirements.
20. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflicts of law provisions thereof and the parties consent to the exclusive jurisdiction and venue of the state and federal courts located in the State of California. The prevailing party in any action to enforce this Agreement shall be entitled to costs and fees (including reasonable attorneys’ fees and expert witness fees) incurred in connection with such action.
All notices, consents, waivers, and other communications intended to have legal effect under the Agreement (each a “Notice”) must be in writing and must be in English. Notices to Seller shall be sent to Seller represented on the P.O by email or to Seller’s address on the P.O. Notices sent to Buyer shall be sent to the attention of “Legal Department” at Buyer’s address on the P.O. with a copy to Airgain, Inc., 3611 Valley Centre Drive, Suite 150, San Diego, CA 92130 and a copy by email to email@example.com. Either Party may change its address for receipt of notices by giving notice of the new address to the other Party in accordance with this Section. Notices will be effective upon receipt or when delivery is refused.
22. ENTIRE AGREEMENT
The Agreement along with the applicable P.O., and any Existing Agreement, states all the terms agreed between the Parties and supersedes all other agreements (oral or written) between the Parties relating to its subject matter (whether entered into prior to or after the date of the applicable P.O.). Except as expressly stated herein otherwise, any amendment or modification to the Agreement must be in writing, signed by both Parties, and expressly state that it is amending the Agreement. In entering into the Agreement, Seller has not relied on, and Seller will not have any right or remedy based on, any statement, representation, or warranty (whether made negligently or innocently), except those expressly stated in the Agreement. The section headings appearing in the Agreement are inserted only as a matter of convenience and in no way define, limit, construe, or describe the scope or extent of such section or in any way affect the Agreement.