1. DEFINITIONS: “SOE” means the buyer of goods or services, Second Order Effects, Inc. “Seller” means the party identified on the face of a purchase order (“PO”). “Products” means all goods, including materials or products, or services to be furnished to SOE pursuant to a PO. These Purchase Terms are subject to change; the terms in effect are those available on our website as of the date of the PO.
2. ACCEPTANCE: These Purchase Terms are the agreement between SOE and Seller for the purchase of Products. Unless the PO is subject to a valid, executed agreement between SOE and Seller, in which case such agreement governs, Seller agrees to be bound by these Purchase Terms. The PO is an offer to purchase Products under these Purchase Terms, and when accepted by Seller, becomes the exclusive agreement between the parties relating to Products. Any of the following constitutes Seller’s unqualified acceptance of a PO: (i) written acknowledgement; (ii) furnishing of any Products pursuant to a PO; (iii) acceptance of any payment for Products; or (iv) commencement of performance pursuant to a PO. Notwithstanding the foregoing, a PO is not a rejection of any offer by Seller (but merely of the terms and conditions contained within such offer) unless such offer contains variances in the description, quantity, price or delivery schedule of the Products. No terms stated by Seller in accepting or acknowledging a PO is binding upon SOE if inconsistent with or in addition to the terms stated herein, unless accepted by SOE in a signed writing.
3. PRICE: If no price is stated herein, the price charged SOE for the Products is the lowest of: (i) the price last quoted to SOE by Seller or last paid by SOE to Seller; or (ii) Seller’s lowest price charged any customer for the Products, regardless of any special terms or conditions.
4. INSPECTION: All Products are received subject to SOE’s right of inspection & rejection. Defective Products or Products not in strict conformance with a PO or SOE’s or Seller’s description or specifications, will be held until receipt of written instructions from Seller, at Seller’s risk, and if Seller so directs, will be returned, at Seller’s expense. If SOE does not receive such written instructions within 30 days of SOE’s request, SOE may, without liability to Seller, dispose of the Products, as it deems appropriate, in its sole discretion. SOE may, by written notice to Seller, and in addition to other remedies provided by law, require replacement or correction of rejected Products. Payment for Products on a PO prior to inspection does not constitute acceptance or a waiver of a breach of warranty and is without prejudice to any claim(s) of SOE. Seller must inspect all Products prior to shipment to ensure conformance with all requirements of a PO.
5. PACKING AND SHIPPING: All items must be packaged, marked and otherwise prepared in accordance with good commercial practices & SOE’s instructions, if any. Each package must be numbered & labeled with SOE’s PO number, stock number (if applicable), contents, & weight. An itemized packing list must be included in each shipment & the package containing the packing list must be clearly marked as such. Each packing list must bear the SOE’s PO number & an accurate description of the Products and quantities in the shipment. Products shipped in excess of SOE’s PO may be returned at Seller’s expense. SOE will not be responsible for any Products furnished without a written PO.
6. DELIVERY: Delivery of goods is DDP (named place of destination). Seller must deliver the goods to SOE, cleared for import, and not unloaded at the named place of destination. Notwithstanding any agreement to pay freight, the risk of loss or damage in transit is upon the Seller.
7. TAXES: SOE will pay sales or use tax, if any is due, of the state in which the PO originates. Seller must pay any other federal, state, local or foreign taxes or other governmental charges upon the production, transportation or sale of the goods supplied hereunder. Unless otherwise stated, the prices do not include sales or use taxes applicable to the goods. All such taxes and charges must be shown separately on Seller’s invoice.
8. WARRANTY: Seller warrants that all Products, for the later of a period of 15 months from the date SOE receives the Product or 12 months from the date the Product becomes usable by the end user, must: (i) be of good quality & workmanship and free from defects, latent or patent, in material or workmanship; (ii) conform in all respects to the specifications, performance standards, drawings, samples or descriptions of Seller and SOE; (iii) be free of any claim of any third party; and (iv) be manufactured in accordance with generally accepted good manufacturing (including, but not limited to cGMP, if applicable) and quality practices. These warranties are in addition to all other express warranties and legal rights. No remedy available to SOE for the breach of any warranties is limited except to the extent and in the manner expressly agreed upon by SOE in a signed writing. SOE’s approval of any sample or acceptance of any Products does not relieve Seller from responsibility to deliver Products and to perform services conforming, in all respects, to the sample. These warranties are not deemed waived either by reason of SOE’s acceptance of Products or by payment for them and survive delivery. In the event of a breach of warranty, SOE may return such Products, at Seller’s expense, for correction, replacement or credit as SOE may direct. This warranty applies to replacement Products & parts. Seller must effectuate corrections or replacements within 10 days of receipt of Products. Sellers providing maintenance Products must receive EHS training before commencing, and if on-site at SOE’s locations, must follow SOE’s rules, regulations, and policies for conduct in the workplace and fitness for duty requirements, as such may be updated by SOE from time to time. Seller must not make any modification to the Products, raw materials used to make Products, or the specifications without SOE’s prior written consent.
9. CONFIDENTIAL INFORMATION: Seller agrees to keep secret & confidential all confidential, proprietary or non-public information of SOE and the existence, terms and conditions of a PO, including any Flow-Down Provisions (defined in Section 15 below) (“confidential information”). In addition, the Seller agrees to: (i) disclose the confidential information only to its employees who need to know for purposes of fulfilling a PO; and (ii) use the confidential information only for the purpose of fulfilling a PO. It is understood that no license (expressed or implied) is hereby granted by the SOE under any confidential information.
10. NOTIFICATION REQUIREMENT: TIME IS OF THE ESSENCE. If, for any reason, at any time, Seller refuses or is unable, or should reasonably anticipate being unable to deliver any part or all of the Products in accordance with the terms hereof, Seller must notify SOE of such refusal or inability at the earliest possible time and by the most practical means under the circumstances. Such notification is not deemed to operate as a release of Seller from its obligations under a PO. SOE has the right to replace, modify and/or cancel any delayed open POs without any liability to Seller. In the event of such a replacement or modification, Seller must pay to SOE (or at SOE’s option, it may offset such amount from any amount owed to Seller) promptly upon demand, an amount equal to the cost of such replacement or modification, less the amount which would have been payable to Seller for an equal quantity and quality of Products, plus any amount incurred by SOE to effectuate such replacement or modification. Such amount is agreed to be damages for Seller’s non- performance and must not, in any event, be construed to be a penalty. Price increases or extensions of time for delivery are not binding upon SOE unless evidenced by a change PO issued by its authorized representative.
11. INTELLECTUAL PROPERTY: Seller hereby grants a perpetual, paid-up license relating to any Software or other embodiment of intellectual property embedded in the Products, as necessary for SOE’s purchase, use, maintenance and/or sale of Products. Seller expressly warrants that all copyrightable works of original authorship (including but not limited to computer programs, technical specifications, documentation and manuals), ideas, inventions (whether patentable, patented or not), know-how, processes, compilations of information, trademarks and other intellectual property (collectively, “Deliverables”) must be original to Seller or be licensed to Seller by a third party and must not incorporate any intellectual property (including copyright, patent, trade secret, mask work, or trademark rights) of any third party which could result in an actual or alleged infringement of any rights of a third party by the purchase, use, maintenance, or sale of Products by SOE. All Deliverables that are created in the course of performing any PO (separately or as part of any Products), and all intellectual property rights in Deliverables, are hereby owned by SOE and not by Seller. Seller agrees that all works of original authorship created by Seller in connection with each PO are “works made for hire” as that term is used in connection with the U.S. Copyright Act. To the extent that, by operation of law, Seller owns any intellectual property rights in the Deliverables, Seller hereby assigns to SOE all rights, title and interest, including copyrights and patent rights, in such Deliverables.
12. SOE’S PROPERTY: All material, compounds, tooling, dies, parts, schedules, protocol, specifications, and all derivatives or reproductions thereof, and any other property furnished to Seller by SOE, or paid for by SOE, are or will be: (i) the property of SOE; (ii) clearly identified as SOE’s property by Seller; (iii) subject to removal at any time upon SOE’s demand; and (iv) used only in filling POs from SOE or its nominee. Seller assumes all liability for loss of, and damage to, such property and Seller will, unless otherwise directed in writing by SOE, insure at Seller’s expense such property in an amount equal to the replacement cost thereof with loss payable to SOE.
13. INDEMNIFICATION AND INSURANCE: Seller will defend, indemnify, and hold harmless SOE, its officers, employees, agents, representatives, customers or affiliates (“SOE’s Affiliates”) from any claim, suit, loss, cost, damage, expense (including, without limitation, the costs and expense incurred in defending suits or actions alleging liability) to any person of whatsoever nature of any kind arising out of, as a result of, or in connection with: (i) Seller’s performance of a PO; (ii) omissions or negligence of Seller or its officers, employees, agents, representatives, affiliates or subcontractors; (iii) the Products; or (iv) a claim for infringement of rights in, to or under patents, trademarks, copyrights or other IP rights by the manufacture, design, use, maintenance, support or sale of any Products. Without in any way limiting the foregoing, Seller and any person or entity performing work for or on behalf of Seller under a PO must maintain liability and property damage insurance covering Seller’s obligations hereunder and the Products and must maintain, in accordance with applicable law, workers’ compensation insurance covering all employees performing work with respect to a PO. This provision survives expiration or termination of a PO.
14. TERMINATION: SOE has the right, without any liability or costs to Seller, to cancel any unshipped portion of a PO: (i) which is not in strict conformance with a PO or SOE’s or Seller’s description or specification; (ii) in the event Seller has breached a PO, any warranty or its obligations to SOE; (iii) in the event SOE’s business is interrupted because of strikes, labor disturbances, riot, fire or Acts of God or any other cause beyond the control of SOE; or (iv) if the Seller makes an assignment for the benefit of creditors, a receiver or trustee is appointed with respect to the Seller’s business, the Seller is adjudicated insolvent or if the Seller files or there is filed against Seller a petition for bankruptcy or other relief under the Bankruptcy Code or any successor statute. SOE has the right to cancel any unshipped portion of a PO, in whole or in part, at any time, for a reason other than that set forth above, in which event SOE will be liable to Seller for the actual amount of Seller’s costs reasonably incurred in contemplation of performance of the canceled portion, less any amount saved by Seller as a result of such cancellation and less any amounts which could have reasonably been mitigated by Seller. Seller is cautioned not to ship, fabricate or build inventories of raw or finished stock at a rate faster than is required to meet delivery requirements of SOE’s PO.
15. COMPLIANCE WITH LAWS, SOE POLICIES, AND FLOW-DOWN PROVISIONS: Seller warrants that the Products, including all packaging thereof, shipped pursuant to a PO has produced in compliance with and meet the minimum standards of all applicable U.S. and foreign federal, state, provincial, and local laws, regulations, rules, guides, ordinances and/or standards (“Laws”), SOE’s policies, and any provisions, terms, or other requirements that SOE may provide to Seller in writing, including terms or other requirements that are flowed down from SOE’s clients (“Flow-Down Provisions”). Seller will perform its obligations under this Agreement in a manner consistent with the requirements of all applicable U.S. and foreign Laws, SOE policies, and Flow-Down Provisions. Upon request by SOE, Seller will furnish SOE with a certificate of compliance with any Laws, SOE policies, or Flow-Down Provisions. Additionally, Seller will provide SOE any and all information or material required for either SOE or SOE’s clients to comply with all Laws or Flow-Down Provisions. Seller acknowledges that Products provided under this Agreement may be subject to applicable U.S. and foreign export Laws and will perform its obligations under this Agreement in a manner consistent with the requirements of such applicable Laws, including the Foreign Corrupt Practices Act. Seller agrees that the shipment or provision of Products, and any related technical data or information, must not violate U.S. export laws or regulations or the import laws and regulations of applicable foreign states. Seller will be responsible for obtaining, recording, filing and maintaining all export and import documentation including all licenses and permits, as well as for the payment of associated fees. Seller must appropriately label containers of all Products which are known to constitute a health, poison, fire, environmental, safety or explosion hazard.
16. ASSIGNMENT: Seller agrees that Seller will neither assign its rights nor delegate its obligations under a PO without the prior written consent of SOE. Any attempted assignment that violates this paragraph is invalid.
17. GOVERNING LAW: Irrespective of the place of performance of a PO, a PO is interpreted in accordance with the laws of the State of California, without reference to choice of law provisions. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the state & federal courts located in Los Angeles County, California, in any action arising out of or relating to this Agreement and waives any other venue to which it may be entitled by domicile or otherwise.
18. AMENDMENT, MODIFICATION, WAIVER AND REMEDIES: Performance of a PO must be strictly in accordance with its stated terms and conditions. No change, modification, revision or waiver is binding unless accepted by SOE in a signed writing. No waiver of or failure to perform any or all of these terms/conditions constitutes a waiver of or an excuse for non-performance as to any other part of this or any other PO. No remedy herein provided is deemed exclusive of any other remedy allowed by law or in equity. Under no circumstances will SOE be obligated for consequential damages, loss of revenue or profit, or any amount in excess of the total amount stated on the face of any PO. Seller must bear all expenses, including reasonable attorneys’ fees, SOE incurs to enforce its rights under a PO.
LAST UPDATED: September 5, 2023