Unless otherwise agreed to in writing and signed by both parties, these terms and conditions are the exclusive and binding agreement between Kateeva, Inc. (“Kateeva”) and the entity to whom this order is addressed, or who performs pursuant to this order (“Seller”) relating to the purchase of the products or services ordered. Any acknowledgement and/or commencement of performance by Seller shall be deemed acceptance of these terms and conditions in full. KATEEVA HEREBY OBJECTS TO ALL ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS PROPOSED BY SELLER BY QUOTATION, ACKNOWLEDGEMENT OR OTHERWISE, WHETHER PREVIOUS, CONCURRENT OR SUBSEQUENT HERETO. PAYMENT FOR OR ACCEPTANCE OF PRODUCTS OR SERVICES DELIVERED HEREUNDER SHALL NOT BE DEEMED AN ACCEPTANCE OF SELLER’S TERMS AND CONDITIONS. No change, modification or revision of this order shall be effective unless in writing and signed by Kateeva’s duly authorized purchasing representative or officer. This order represents the entire agreement between the parties relating to its subject matter and supersedes all prior representations, discussions, negotiations and agreements, whether written or oral.
Seller shall deliver written invoices to Kateeva in duplicate and shall include the following information: Kateeva’s purchase order number, product model number, description of products and/or services (to the extent ordered by Kateeva), sizes, quantities, unit prices, and extended totals in addition to any other information specified elsewhere herein. Bill of Lading or other shipping documentation shall accompany each invoice. Payment of any invoice shall not constitute acceptance or rejection of any products or services or other acknowledgement by Kateeva that Seller has met the requirements of the order. Kateeva may at any time set off any amount owed by Kateeva or its affiliated companies to Seller against any amount owed by Seller or any of its affiliated companies to Kateeva. Kateeva reserves the right to pay in United States dollars.
If Seller offers a discount for prompt payment, discounts will be computed from the latest of: (a) the scheduled Delivery date; (b) the date of actual Delivery; or (c) the date a properly filled out original invoice and packing list is received by Kateeva. Payment is deemed to be made, for the purpose of earning the discount, on the date of Kateeva’s issuance of payment.
The prices set forth in this order do not include any applicable foreign, federal, state and local taxes and/or miscellaneous charges including but not limited to sales, use taxes, ad valorem (property) taxes, duties, customs, tariffs, forwarding agent’s fees, imposts and surcharges (together, “Taxes”). Any applicable Taxes shall be stated separately on Seller’s invoice. Kateeva shall have no obligation or liability for, and Seller agrees to indemnify, defend, and hold Kateeva harmless from and against any liability for Taxes assessed in error, irrespective of when the tax is assessed, as well as the collection or withholding thereof, including all penalties and interest.
Kateeva reserves the option to refuse or to return at Seller’s expense any shipments of products either in excess of the amount, or in advance of the schedule, stated on the face of this order. Any such shipments which Kateeva elects not to take will be held at Seller’s risk and expense including reasonable storage and other charges while awaiting Seller’s shipping instructions.
Unless otherwise specified by Kateeva in writing, all products shall be packed, packaged, marked, and otherwise prepared for shipment in a manner which is (i) in accordance with good commercial practice and ISTA 1G/1H standards, (ii) acceptable to common carriers for shipment at the lowest rate for the particular products and in accordance with all tariffs, governmental laws and regulations and (iii) adequate to ensure safe arrival of the products at the destination designated in this order and for storage and protection against weather. Seller shall mark all containers with necessary lifting, handling and shipping information and also purchase order numbers, date of shipment and the names of the consignee and consignor. An itemized packaging sheet must accompany each shipment unless otherwise specified by Kateeva in writing.
Kateeva may at any time by a written order to Seller and without notice to sureties or assignees, suspend performance hereunder, increase or decrease the ordered quantities of products or services, or make changes in any one or more of the following:
If any such change causes a decrease in the cost of, or the time required for performance of this order, an equitable adjustment shall be made in the order price or delivery schedule, or both, as reasonably determined by Kateeva.
The ordered products shall be delivered DDP, Incoterms 2010. Time is expressly made of the essence in regard to the performance by Seller thereunder. Seller shall be liable for all excess transportation or other charges or costs resulting from failure to follow and meet Kateeva’s routing instructions and delivery schedules. No partial or complete delivery shall be made thereunder prior to the date or dates designated on this order unless Kateeva has given prior written record.
Kateeva, in his sole discretion, may terminate or suspend the performance of work under these terms and conditions in whole or in part at any time by written notice to Seller. Upon receipt of such notice from Kateeva, Seller shall take such action as Kateeva may direct.
The failure of Kateeva to enforce at any time any of the provisions of this order, or to exercise any election or option provided herein, or to require at any time performance by the Seller of the provisions thereof, shall in no way be construed to be a waiver of such provisions, nor in any way to affect the validity of this order or any part thereof, or the right of Kateeva thereafter to enforce each and every such provision. No acceptance, payment, inspection or failure to inspect, or approval of Seller’s product or design or services or resulting work product, shall excuse Seller from any obligation or warranty under this order, even if a defect, non?conformity or other deficiency could or should have been observed or detected. A waiver by Kateeva of any drawing or specification required for one or more of the products or a portion of the services shall not constitute a waiver of such requirements for the remaining products or services.
Seller shall indemnify, defend and hold Kateeva and its directors, officers, employees and agents harmless from any claims, demands, liabilities, losses, damages, judgments and settlements, including all reasonable costs and expenses related thereto, including attorney’s fees, directly or indirectly, arising from any claimed infringement or violation of any copyright, patent, trade mark or other intellectual property right with respect to the products and/or service work products purchased hereunder or any claimed breach of the warranty in Section 7(b), or from any act, omission or service of Seller or any of Seller’s employees or agents. Kateeva agrees to reasonably notify Seller of a claim covered by this Section 14 and to cooperate at Seller’s expense in the defense thereof.
Confidential Information” means all tangible and intangible information disclosed by Kateeva hereunder or otherwise made available or accessible to Seller whether intentionally or inadvertently regardless of the manner or medium of disclosure or access, that is described as proprietary or confidential or would be considered as confidential or proprietary to a reasonable person under the circumstances of the disclosure, and shall include but is not limited to: purchase information, such as prices, products and services ordered, quantities ordered, shipment details, all information on Kateeva’s method of doing business, its customers, Kateeva’s intellectual property, specifications, data, software, drawings, samples, ideas, concepts, prototypes, materials and equipment, capacities, inventions, processes, financial information, business plans, marketing and development plans. Products and services provided by Seller pursuant to Kateeva’s specifications or drawings shall not be offered or disclosed to others without the Kateeva’s prior written authorization. Seller agrees that all such confidential information shall remain Kateeva’s property, shall not be disclosed, shall be used only for purposes of this order and shall be promptly returned to Kateeva upon request. Any publicity regarding this order (including pictures, descriptions or samples thereof) is prohibited except with Kateeva’s prior written approval.
Seller agrees that it will not invoke any changes in process or method of manufacturing during the term of this order without Kateeva’s written consent. Seller further agrees that any contemplated changes in process or method of manufacturing will be submitted to Kateeva in sufficient time to provide Kateeva a reasonable opportunity in which to evaluate such changes.
All notices to be given or served hereunder shall be effective upon receipt at the address appearing on the face of this order, provided that notices to Kateeva specify Kateeva’s authorized buying agent and Kateeva’s purchase order number.
This order will be governed by and construed in accordance with the laws of the United States and the laws of the State of California, excluding California’s conflicts of law provisions. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this agreement.
Kateeva and Seller hereby submit to the jurisdiction of, and waive any venue objections against, the United States District Court for the Northern District of California and the Superior and Municipal Courts of the State of California, Santa Clara County, in any litigation arising out of this order. In any action or proceeding related to or arising out of this order, the prevailing party shall be entitled to its reasonable attorney’s fees and costs.
If any part of this order is found invalid or unenforceable, that part will be amended to achieve as nearly as possible the same economic effect as the original provision and the remainder of this order will remain in full force.
Kateeva may assign this order or any right or obligation thereunder upon written notice to Seller. Seller may not assign this order or any right or obligation, including by operation of law, hereunder except upon the prior written consent of Kateeva. For purposes of these terms and conditions, a change of control of Seller shall be deemed to be an attempted assignment in violation of the foregoing prohibition.
Seller shall notify Kateeva in writing, before delivery of any products whether such product requires a license from the U.S. or any foreign government in order to export the product from the U.S. or from any country where the product is delivered. Seller shall provide Kateeva all information that Kateeva needs to obtain such export licenses.