KATEEVA TERMS AND CONDITIONS OF PURCHASE ORDER

 

1.   AGREEMENT OF THE PARTIES.

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.

2.   INVOICES.

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.

3.   CASH DISCOUNTS.

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.

4.   TAXES AND EXPENSE.

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.

5.   OVERSHIPMENTS.

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.

6.   PACKING AND SHIPMENT.

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.

7.   WARRANTY.

  • Seller warrants that all products delivered to Kateeva, including all components and raw materials incorporated herein, as well as products corrected under this warranty (i) shall be free from defects in workmanship, materials and manufacture; and (ii) shall comply with and conform to (A) the requirements of these terms and conditions, (B) any drawings or specifications incorporated herein or submitted to Kateeva, (C) any samples furnished by Seller, (D) documentation and specifications published by Seller, and (E) any response by Seller to a request for proposal or similar inquire by Kateeva; and (iii) comply with all applicable laws and regulations and generally recognized standards and codes; (iv) are new and not counterfeit, and (v) where design is Seller’s responsibility, be free from defects in design. Seller also warrants that all services shall be provided at the highest professional standards. The foregoing warranties are in addition to all other warranties, whether expressed or implied, and shall survive any inspection, acceptance, and payment by Kateeva. All warranties shall benefit and be enforceable by Kateeva and its
  • Seller represents and warrants that it has the full power and authority to grant the rights granted thereunder. Seller further represents and warrants that neither the products nor their content, promotion, advertisement, use, sale, offer for sale, importation, distribution, and/or other disposition, nor any service and/or the work product derived therefrom, will infringe or violate any copyright, patent, trade secret, trademark, right of publicity or privacy or other personal proprietary right of any third party or contain any defamatory, libelous or obscene matters. Seller further warrants that all products delivered to Kateeva shall be free and clear of all liens and encumbrances and that Kateeva shall have the quiet enjoyment
  • Seller represents and warrants that it complies with all applicable laws and regulations, including eradication of forced, bonded, indentured, involuntary convict or compulsory labor, as well as illegal child labor in its facilities, and requires their suppliers, including labor agencies, to do the same. Seller warrants that its supply chain and materials incorporated into its products comply with the laws prohibiting slavery and human trafficking. Seller agrees to adopt sound human rights practices, to treat workers fairly and with dignity and respect, provide a safe and healthy work environment for their workers, conduct business in compliance with applicable environmental and employment laws, and refrain from corrupt practices. This order (if in excess of $10,000) is subject to the provisions of (i) Executive Order 11246 (41 CFR 60?4); (ii) section 503 of the Rehabilitation Act of 1973 (41 CFR 60?741.5(a)); and (iii) section 4212 of the Vietnam Era Veterans Readjustment Act of 1974 (41 CFR 60?300.5(a)).  Seller shall comply with the applicable standards of the Electronic Industry Citizenship Coalition Code of Conduct (EICC), which can be found at www.eicc.info, and will maintain accurate books and records as it relates to any labor or services provided for Kateeva.
  • Seller represents and warrants that it complies with all applicable governmental, legal and regulatory requirements, including, but not limited to, anti?bribery and anti?corruption laws, such as the US Foreign Corrupt Practices Act (FCPA). Kateeva has the right to conduct or have a third party conduct an independent audit to assure compliance with this provision, as well as require that Seller sign a compliance certificate on an annual
  • Seller represents and warrants that the Seller’s products and service work product comply and will continue to comply with any directive or specific law, rule or regulation related to RoHS, WEEE, REACH or other environmental requirements applicable to Seller, including, without limitation, the EU Packaging Directive (EU 94/62/EC), EU Timber Regulation (No 995/2010), the US Lacey Act, the Stockholm Convention of 1998 on Persistent Organic Pollutants, the Montreal Protocol of September 1987 on Substances Depleting the Ozone Layer and the Basel Convention of 1989 on the Control of Transboundary Movements of Hazardous Wastes and their Disposal. In addition, Seller warrants and covenants that Seller’s products comply with the RoHS Directive 2011/65/EU (“RoHS”) , the WEEE Directive 2012/19/EU (“WEEE”) and the REACH Directive EC/1907/206 (“REACH”) and that Seller is fully aware of its obligations under these Directives, including, but not restricted to the following: Not to violate the substance bans under RoHS; to demonstrate compliance with the requirements listed in Module A of Decision 768/2008/EC; to keep the Technical Documentation for ten (10) years after the last sale of the respective product to the Kateeva; to affix, where applicable, the CE marking to the product; to make available required EU Declarations of Conformity; to provide Kateeva, upon request and free of charge, with information about preparation for re-use and treatment; to maintain traceability records indicating part number, quantity and revision status of products for no less than seven (7) years. At Kateeva’s request, Seller will certify its compliance with any specific law, rule or regulation with which it must comply hereunder.

8.   INSPECTION AND ACCEPTANCE.

  • All products purchased thereunder shall be subject to inspection and test by Kateeva to the extent practicable at all times and places during and after the period of manufacture and in any event, prior to acceptance. If inspection or test is made by Kateeva at Seller’s premises, Seller, without additional charge, shall provide all reasonable facilities and assistance for the safety and convenience of Kateeva’s inspectors. No inspection or test shall relieve the Seller from responsibility for defects or other failure to meet the requirements of this
  • Notwithstanding any prior inspections or payments thereunder, all products and service work products shall also be subject to inspection and acceptance at Kateeva’s facility within a reasonable time after delivery. Seller shall provide and maintain an inspection system which is acceptable to Kateeva. Seller shall keep and maintain complete and accurate records of all inspection work, which records shall be available to Kateeva during the performance of this order and for five years thereafter or such longer period as specified by
  • If Kateeva rejects any product and/or service work product, in whole or part, in accordance with the above, Seller shall, at Kateeva’s sole discretion, repair or replace the rejected product or work product such that it is acceptable to Kateeva or, in Kateeva’s sole discretion and as its nonexclusive remedy for such rejection, refund to Kateeva the amounts paid by Kateeva for the rejected product or service, plus interest at a rate equal to one percent (1.0%) per month or the maximum rate permitted by applicable usury law, whichever is lower.

9.   CHANGES.

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:

  • applicable drawings, designs or specifications;
  • method of shipment or packing;
  • place of delivery and/or
  • schedules, including time of delivery

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.

10.   DELIVERY.

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.

11.   TERMINATION OR SUSPENSION FOR CONVENIENCE.

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.

12.   DEFAULT OF SELLER.

  • If any products or services delivered thereunder do not fully meet the requirements of this order, Kateeva may (i) require the Seller to promptly correct, at no cost to Kateeva, any defective or nonconforming products and services by repair or replacement or re-performance, at the locations specified by Kateeva, or (ii) exercise any other remedy or remedies provided in sections 2711 through 2717 of the California Uniform Commercial
  • The foregoing remedies are in addition to all other remedies of law or in equity or under this order, for damages or otherwise, and shall not be deemed to be exclusive. Claims by Kateeva under this order may be exercised at any time within the later of (i) five years after final acceptance or (ii) the latest time allowed by applicable

13.   WAIVER.

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.

14.  INDEMNITY.

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.

15.  NON-DISCLOSURE OF CONFIDENTIAL MATTER AND PUBLICITY.

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.

16.   CHANGES IN PROCESS OR METHOD OF MANUFACTURING.

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.

17.   LIMITATION OF LIABILITY.

  • KATEEVA SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS, WHETHER ANY OF THE FOREGOING ARISE FROM CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, TORT OR STRICT LIABILITY, EVEN IF KATEEVA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
  • IN NO EVENT SHALL KATEEVA’S LIABILITY TO SELLER EXCEED THE AMOUNT OF THE PURCHASE PRICE STATED ON THIS ORDER FOR THE PRODUCTS OR SERVICES IN
  • SELLER AGREES THAT THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION 17 REPRESENTS A REASONABLE AND DELIBERATE ALLOCATION OF

18.   NOTICES.

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.

19.   CHOICE OF LAW.

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.

20.   CHOICE OF FORUM; ATTORNEY’S FEES.

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.

21.   SEVERABILITY.

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.

22.   ASSIGNMENT.

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.

23.   EXPORT.

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.

Close

Share this Page

Copy link to clipboard Link Copied
Close

News Sign-Up