Purchase Order Terms and Conditions
The Apricorn Purchase Order (PO) and these terms and conditions set forth the agreement between the Vendor named in the PO and Apricorn regarding Apricorn’s purchase and Vendor’s sale of the goods and/or services described in the PO.
- ENTIRE AGREEMENT. The PO and these terms and conditions constitute the complete agreement between the parties and supersede all prior or contemporaneous understandings, agreements, negotiations, representations, warranties, and communications, both written and oral. Any additional terms or conditions contained in Vendor's order acknowledgment, quote, confirmation, invoice or in any other Vendor document, regardless of when submitted, shall be deemed objected to by Apricorn without the need for further notice of objection and shall not be binding upon Apricorn nor of any force or effect. Vendor’s acceptance of the PO is expressly limited to these terms and conditions.DELIVERY, PRICES. Vendor shall deliver the goods and/or services in the quantities, at the prices and within the time specified in the PO. Failure of Vendor to comply with such requirements shall entitle Apricorn to cancel the PO without liability for any undelivered portion, in addition to Apricorn’s other rights and remedies.
- CANCELLATION BY APRICORN. Except as otherwise specified in the PO, Apricorn shall have the right to cancel the PO at any time without cause and Apricorn's liability for such cancellation shall be limited, as applicable, to the goods and services delivered prior to cancellation or to Vendor's actual cost for work and materials in the performance of the PO as of the date upon which Apricorn's notice of cancellation is received by Vendor.
- Apricorn may at any time make changes to its order set forth in the PO, including without limitation, the quantities, specifications, drawings, instructions, or delivery schedule. Any change which has a significant impact on Vendor's time or cost of performance shall entitle Vendor to request an equitable adjustment. However, no additional charge will be allowed unless requested by Vendor within twenty (20) days after the change is ordered, and such additional charge is agreed to by Apricorn in writing.
- FREIGHT, TITLE AND RISK OF LOSS. Unless otherwise specified in the PO, Vendor shall be responsible for freight and delivery to the destination specified in the PO and for all freight and delivery charges. Vendor shall bear all risks of loss and damage to the goods until final acceptance by Apricorn at the “ship to” destination specified in the PO. Vendor warrants that it will deliver full, unrestricted title to all goods and services furnished hereunder.
- INVOICES AND PAYMENT. Apricorn's PO Number(s) appearing in the PO must be shown on all packing lists, invoices and correspondence relating to the PO. After delivery and acceptance of the goods and services by Apricorn, the invoice shall be sent to Apricorn, itemizing taxes, transportation and other charges separately, if applicable. Unless otherwise stated on the PO, Apricorn shall pay Vendor within sixty (60) days of Apricorn’s receipt of a correct invoice.
- Vendor warrants that all goods supplied hereunder shall (a) be free and clear of all liens and encumbrances, (b) be free from any defects in design, material or workmanship, and (c) conform to Apricorn's specifications or the sample approved by Apricorn. Vendor represents and warrants that all services provided herein shall be performed in a timely and professional manner and in accordance with Apricorn specifications and accepted industry standards. In fulfilling the PO, Vendor warrants that it will comply with all applicable laws, rules, regulations, licenses, permits, ordinances, codes and/or standards. The foregoing warranties will survive inspection, delivery and payment and shall inure to the benefit of Apricorn, its employees, successors, assigns and Apricorn customers.
- Apricorn will have a reasonable period after delivery or performance within which to inspect and accept the goods or services subject to the PO. Apricorn has the right to (a) reject nonconforming goods or services, (b) recover damages and/or (c) exercise any other remedies to which Apricorn may be entitled at law or in equity. Rejected goods may be returned to Vendor or otherwise disposed of at Vendor’s cost and expense. At Apricorn's option, Vendor shall (i) replace such rejected goods in the manner and within the time specified by Apricorn, (ii) refund or credit Apricorn's account for the purchase price of such rejected goods, (iii) re-perform the services until they meet the warranties, or (iv) reimburse Apricorn for the costs incurred in engaging a third-party to provide substitute goods and/or services, and in each case Apricorn may terminate the PO for default.
- WORK PRODUCT. Vendor agrees all writings, drawings, designs, copyrightable material, inventions (whether or not patentable), improvements, discoveries, developments, and all works of authorship created by Vendor in the performance of services hereunder based on Apricorn’s requests, specifications or information, including all worldwide intellectual property rights therein (collectively “Work Product"), are the sole property of Apricorn. Vendor assigns to Apricorn all right, title and interest in and to all such Work Product, and shall perform such acts needed to transfer, perfect, and defend Apricorn’s ownership of the Work Product, including requiring Vendor’s subcontractors to execute written assignments of Work Product. To the extent Vendor or third parties retain ownership rights in materials delivered with the goods, or upon which the Work Product is based, Vendor hereby grants to Apricorn an irrevocable, worldwide, non-exclusive, royalty-free right and license to make, have made, modify, use, distribute, publicly perform or display, sell, offer to sell, and import such materials. Vendor warrants it owns or has acquired rights in all such intellectual property necessary to assign the rights and grant the licenses set forth in this section.
- Except for goods made in accordance with Apricorn's design, Vendor warrants that the sale or use of goods furnished hereunder will not infringe any patent, copyright, trademark or other intellectual property right of a third party (“intellectual property rights”). Vendor shall indemnify and defend Apricorn, its successors and assigns from and against any third-party claim alleging that Apricorn’s purchase or use of the goods in accordance with the terms of the PO infringes any intellectual property rights, and for all losses, damages and expenses (including reasonable attorney's fees and costs) incurred by Apricorn as a result of such third-party claims.
- To the fullest extent permitted by law, Vendor agrees to defend, indemnify, and hold Apricorn and its agents, representatives, employees, officers, directors, affiliates, successors, assigns, and customers harmless from and against any and all claims, demands, actions, damages, costs, losses and liabilities (including reasonable attorneys’ fees and costs) caused by, arising from, or in any way connected with (a) defective goods or services provided to Apricorn under the PO, (b) any wrongful/negligent act or omission of Vendor, its agents, employees, or subcontractors, or (c) Vendor’s breach of any of the terms and conditions contained herein. Such indemnification obligations shall survive the fulfillment, expiration or cancellation of the PO.
- LIMITATION OF LIABILITY. IN NO EVENT SHALL APRICORN HAVE ANY LIABILITY FROM OR RELATING TO THE PO FOR PUNITIVE, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF APRICORN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Apricorn’s liability on any claim of any kind for any loss or damage arising out of or in connection with the PO or from the performance or breach thereof shall in no case exceed the price allocable to the goods and services ordered and delivered under it.
- GOVERNING LAW; VENUE. The PO, these terms and conditions, and all disputes hereunder shall be governed by the laws of the State of California, without regard to any of its conflict-of-law rules. The parties expressly consent to the exclusive jurisdiction and venue of the courts (whether federal or state) in San Diego, California, and the parties hereby further waive any objections based on venue or forum non conveniens. The parties agree the UN Convention on Contracts for the International Sale of Goods shall not apply to the sale of goods hereunder.
- Vendor shall obtain and keep until completion of the PO, worker's compensation and general comprehensive liability insurance covering each occurrence of bodily injury and property damage in the amount of not less than $1,000,000 combined single limit with special endorsements providing coverage for: (i) Products and Completed Operations Liability; (ii) Blanket Broad Form Vendor's Liability; and (iii) Blanket Contractual Liability. Upon request, Vendor shall furnish Apricorn with a certificate evidencing the required insurance.
- OWNERSHIP; CONFIDENTIALITY. Drawings, specifications and other engineering and manufacturing information supplied by Apricorn are Apricorn’s confidential information and shall remain Apricorn's property and be returned to Apricorn upon completion of the PO or otherwise upon demand by Apricorn. Vendor agrees to keep confidential the terms and conditions of the PO and all confidential information disclosed by Apricorn or otherwise obtained by Vendor in connection with the PO. Vendor will not use any of this information other than in connection with the performance of the PO and will not disclose any of this information except to the extent required by law and then only after prior notice to Apricorn.
- INDEPENDENT CONTRACTOR. Vendor shall perform the PO as an independent contractor, and Vendor is not an employee, agent, partner or representative of Apricorn. Any person employed by Vendor to perform hereunder shall not be deemed to be an employee of Apricorn, and Vendor and Vendor’s employees, contractors, subcontractors, agents or representatives shall not be, or represent themselves to be, officers, employees, agents or representatives of Apricorn and shall not bind, or attempt to bind, Apricorn to any agreement, liability or obligation of any nature. Vendor agrees to pay, and hereby accepts full and exclusive liability for the payment of, any and all contributions and taxes for unemployment compensation, disability insurance, or pensions, and all similar provisions now or hereafter imposed by any federal or state governmental authority, which are imposed with respect to or measured by wages, salaries, or other compensation paid by Vendor to persons employed by Vendor; and Vendor further agrees to indemnify and save Apricorn harmless from and against any and all such liability or claims related thereto.
- No waiver, or failure by either party at any time to enforce any of its rights hereunder, shall constitute a continuing waiver for any particular breach or a waiver for any subsequent or different breach. Vendor shall not assign (by change in control or otherwise) the PO or subcontract any portion of its performance without Apricorn's prior written consent. In the event that any provision contained in the PO is held to be invalid or unenforceable by a court of competent jurisdiction, then the remaining terms will not be affected and will continue to be valid and enforceable to the fullest extent permitted by law.