Last Edit: 9/21/21
By accepting this Purchase Order, and/or performing hereunder, Seller agrees to comply fully with the terms and conditions set forth herein (the Purchase Order and terms and conditions collectively the “Agreement”). Acceptance of this Agreement is expressly limited to the terms and conditions set forth herein and none of Seller's terms and conditions shall apply in acknowledging this order or in the acceptance of this order. Acceptance by Owlet (including its subsidiaries and affiliates, “OWLET”) of the goods, services, materials or work delivered pursuant to this Agreement shall not constitute agreement to Seller's terms or conditions. Seller may not ship in reservation.
Changes, modifications, waivers, additions or amendments to this Agreement shall be binding on OWLET only if such changes, modifications, waivers, additions or amendments are in writing and signed by a duly authorized representative of OWLET.
2. Applicable Law
The validity, interpretation, and performance of these terms and conditions and any purchase made hereunder shall be governed by, enforced under and constructed in accordance with the laws of the State of Utah, the United States of America and any related trade regulations.
3. Compliance with Laws
Seller agrees that at all times it will comply with all applicable federal, state, municipal and local laws, orders and regulations, including but not limited to those affecting or limiting prices, production, purchase, sale and use of material. If requested by OWLET, Seller agrees to promptly certify compliance with such laws in such forms as OWLET may request.
4. Release of Information
Goods or services purchased hereunder which include OWLET specifications or drawings shall not be quoted for sale to others without OWLET's written authorization. Such specifications, drawings, samples, or other data furnished by OWLET shall be treated as confidential information by Seller and shall remain OWLET's property, and shall be promptly returned to OWLET at OWLET's request. In addition, any knowledge or information which Seller may disclose to OWLET shall not be deemed to be confidential or proprietary information and shall be acquired by OWLET free from any restrictions as to use or disclosure thereof.
Seller shall indemnify, hold harmless, and at OWLET's request, defend OWLET, its officers, directors, customers, agents, representatives and employees, against all actions, claims, liabilities, damages, losses and expenses, including attorneys' fees and cost of suit arising out of or in any way connected with the goods or services provided under this Agreement, including, without limitation, (i) any claim based on the death or bodily injury to any person, destruction or damage to property, (ii) any claim based on the negligence, omissions or willful misconduct of Seller, and (iii) any claim by a third party against OWLET alleging that the goods or services, or any other products or processes provided under this Agreement, infringe a patent, copyright, trademark, trade secret or another proprietary right of a third party, whether such are provided alone or in combination with other products or processes. Seller shall not settle any such suit or claim without OWLET's prior written approval. Seller agrees to pay or reimburse all costs that may be incurred by OWLET in enforcing this indemnity, including attorneys' fees.
Seller agrees to indemnify, defend, and to hold OWLET, its officers, directors, agents, customers, representatives and employees harmless from and against any and all loss, expense, damage, liability, claims, actions or demands either at law or in equity for actual or alleged infringement of any patent, trademark, copyright, or trade secret arising from the purchase, use or sale of materials or articles required by this Agreement, except where such infringement or alleged infringement arises by reason of specifications for such materials or articles originally furnished to Seller by OWLET. Should OWLET's use, or use by its distributors, or customers, of any goods purchased or services rendered from Seller be enjoined, be threatened by injunction, or be the subject of any legal proceeding, Seller shall, at is sole cost and expense, either (a) substitute fully equivalent non-infringing goods or services; (b) modify the goods or services so that they no longer infringe but remain fully equivalent in functionality; (c) obtain for OWLET, its distributors, or customers the right to continue using the goods or services; or (d) if none of the foregoing is possible, refund all amounts paid for the infringing goods or services.
Failure of OWLET to enforce at any time any of the provisions of this Agreement, or to exercise any election or option provided herein, or to require at any time performance by Seller of any of the provisions hereof shall in no way be construed to be a waiver of such provisions, nor in any way to affect the validity of the Agreement or any part thereof, or the right of OWLET thereafter to enforce each and every such provision.
All goods purchased or services rendered hereunder shall be subject to acceptance. No acceptance made prior to final acceptance shall relieve Seller from responsibility for defects or other failure to meet the requirements of this Agreement. In case any item is defective in material or workmanship, or otherwise not in conformity with the requirements of this Agreement, OWLET shall have the right either to reject it without correction, require its correction, or accept it with an adjustment in price. Any item which has been rejected or required to be corrected shall be replaced or corrected by and at the expense of Seller promptly after notice. If, after being requested by OWLET, Seller fails to promptly replace or correct any defective item within the delivery schedule, OWLET may (i) by contract or otherwise, replace or correct such item and charge to Seller the costs occasioned thereby; (ii) without further notice, terminate any order for default; and (iii) require an appropriate reduction in price. Notwithstanding any prior inspections or payments hereunder, all items shall also be subject to final inspection and acceptance by OWLET within a reasonable time after delivery. Seller shall provide and maintain an acceptance system which is acceptable to OWLET.
Seller warrants that all materials delivered and services rendered hereunder shall be free from defects in workmanship, material, manufacture, and performance, shall comply with the requirements of the Agreement and any order hereunder. Seller further warrants that all materials and services purchased hereunder shall be of a good and merchantable quality and shall be fit and suitable for the purposes intended by OWLET. The foregoing warranties shall constitute conditions and are in addition to all other warranties, whether expressed or implied, and shall survive any delivery, inspection, acceptance, or payment by OWLET. If any materials delivered or services rendered hereunder do not meet the warranties specified herein or otherwise applicable, OWLET may, at its option, (i) require Seller to correct at no cost to OWLET any defective or non-conforming supplies or services rendered by repair or replacement, or (ii) return such defective or non-conforming goods at Seller's expanse to Seller and recover from Seller the order price thereof, or (iii) correct the defective or nonconforming materials or services rendered itself and charge Seller with the cost of such correction. The foregoing remedies are in addition to all other available remedies at law, in equity or under this Agreement and shall not be deemed to be inclusive. All warranties shall run to OWLET's and to its customers. OWLET's acceptance of Seller's goods, services, materials or designs shall not relieve Seller of the warranties set forth in this clause, nor shall waiver by OWLET of any specification requirement for one or more of the items constitute a waiver of such requirements for the remaining items to be delivered hereunder unless so stated by OWLET in writing.
No right or obligation under this Agreement (including the right to receive monies due hereunder) shall be assigned by Seller without the prior written consent of OWLET, and any purported assignment without such consent shall be void. Seller shall not subcontract any substantial portion of the work to be performed by it under this order without the prior written consent of OWLET.
If either party defaults in the performance of a material obligation under this Agreement and fails to cure such default within a reasonable time period, not exceeding ten (10) days after receipt of a written notice given by the other party demanding that the default be cured, the non-defaulting party may terminate this Agreement immediately upon giving a written notice of termination. Upon termination Seller shall, to the extent and at the times specified by OWLET, stop all work on any order, place no further orders hereunder, terminate work under orders outstanding hereunder, assign to OWLET all Seller's interests under terminated subcontracts and orders, settle all claims thereunder after obtaining OWLET's approval, protect all property in which OWLET has or may acquire an interest, and transfer title and make delivery to OWLET of all articles, materials, work in process, or other things held or acquired by Seller in connection with the terminated portion of any order. Seller shall proceed promptly to comply with OWLET's directions respecting any of the foregoing without awaiting settlement or payment of its termination claim.
11. Price Adjustment
OWLET will not accept shipment at any change in price above that indicated on this order, unless otherwise agreed upon in writing by OWLET. Any general price decrease announced by Seller in classification of materials and/or services similar to the items described in this order shall automatically reduce the price thereof by a comparable percentage. Seller's acceptance of this Agreement constitutes a guarantee that the prices to be charged for materials or services ordered hereunder are not in excess of prices charged to other customers for similar materials and/or services.
12. Notice of Labor Disputes
Whenever an actual or potential labor dispute is delaying or threatens to delay the timely performance of any order, Seller will immediately notify OWLET and any representative designated by OWLET of such dispute and furnish all relevant details. Seller will include a provision identical to the above in each subcontract hereunder and immediately upon receipt of any such notice, communicate it to OWLET.
The following payment terms shall apply to this Agreement: If OWLET receives the invoice prior to such shipment or receipt of goods or services, the foregoing terms on this order shall be measured from date of such receipt by OWLET of shipment of goods rather than date of receipt of invoice. All invoices from Seller will contain the following information: purchase order number, item number, description of items, sizes, quantities, unit prices, and extended totals in addition to any other information specified elsewhere herein or required by OWLET.
14. Extra Charges
No charges of any kind including charges for boxing or cartage will be allowed unless specifically agreed to by OWLET in writing.
15. Time of Delivery
Seller acknowledges and agrees that the requested delivery date indicated by OWLET for the goods, services, materials or work to be supplied under this Agreement is of the essence. Failure to
meet the requested delivery dates as set forth on the purchase orders shall be considered a material breach of the Agreement. Seller agrees to pay OWLET any penalties or damages imposed upon or incurred by OWLET for failure of Seller to deliver goods, services, materials or work by such requested delivery dates.
16. Late Delivery Concessions
In the event that Supplier fails to deliver Product by the delivery dates specified in the Purchase Order, at Owlet's discretion and direction, all shipments made after said dates will be made via air freight at Supplier's expense until such time as Supplier is able to resume delivery according to the requirements of the Purchase Order.
OWLET may at any time set off any amount owed by OWLET to Seller against any amount owed by Seller or any of its affiliated companies to OWLET.
Unless agreed to by OWLET in writing, the prices set forth in this Agreement include all applicable federal, state and local taxes. All such taxes shall be itemized on Seller's invoice.
19. Reservation of Rights
OWLET expressly reserves all rights and remedies which are available to it at law or equity, including but not limited to rights and remedies set forth in the Uniform Commercial Code.
OWLET will pay only for maximum quantities ordered plus five percent (5%) by SKU unless otherwise agreed upon in writing by OWLET. Over shipments will be held at Seller's risk and
expense for a reasonable time awaiting shipping instructions. Return shipping charges for excess quantities will be at Seller's sole expense. Seller agrees to accept any such shipment without dispute.
21. Packing & Shipping
Unless otherwise specified, all goods shall be packed, packaged, marked, and otherwise prepared for shipment in a manner which is: (i) in accordance with the Vendor Guide and product specification; (ii) in accordance with standard commercial practice; (iii) acceptable to common carriers for shipment at the lowest rate for the particular commodity and in accordance with I. C. C. regulations; and (iv) adequate to ensure safe arrival of the goods at the named destination. Seller shall mark all containers with necessary lifting, handling, and shipping information and shall include the order number(s), date of shipment, and the names of the consignee and consignor. An itemized packaging list must accompany each shipment.
Defective material shall be returned freight collect to Seller. Replacement material shall be sent freight prepaid from Seller. Seller shall be solely responsible for any and all costs associated with premium transportation (including but not limited to air freight costs) in the event that defective or replacement material places critical time or delivery schedule constraints on OWLET.
Any such item or any materials or any engineering data or other technical or proprietary information furnished by or paid for by OWLET shall: (i) become and shall be identified as property of OWLET; (ii) be held by Seller on consignment at Seller's risk; (iii) be used exclusively in the production for OWLET of items required by this order; and (iv) be subject to disposition by OWLET at any and all times and upon demand shall be returned to OWLET. Seller shall establish procedures for the adequate storage, maintenance and inspection of the goods and/or materials and shall maintain inspection records available to OWLET upon request.
24. Title & Risk Loss
Seller shall bear the risk of loss and damage to all items to be supplied hereunder until final acceptance by OWLET.
Seller warrants that it has not offered or given and will not offer or give to any employee, agent, or representative of OWLET any gratuity with a view toward securing any business from
OWLET or influencing such person with respect to the form, conditions, or performance of any order from OWLET. Any breach of this warranty shall be a material breach of this Agreement.
Paragraphs 2, 4, 5, 6, 8, 16, 18, 22 and 25-28 shall survive the termination, expiration, satisfaction or performance of this Agreement.
27. Dispute Resolution
Any dispute regarding and/or arising from this Agreement shall be submitted to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall take place in Salt Lake City, Utah, U.S.A. This Agreement will not be governed by the United Nations Convention for the International Sale of Goods. THE PARTIES TO THIS AGREEMENT UNDERSTAND THIS SECTION 26 CONTAINS AN AGREEMENT TO ARBITRATE. AFTER SIGNING THIS AGREEMENT, EACH PARTY UNDERSTANDS IT WILL NOT BE ABLE TO BRING A LAWSUIT CONCERNING ANY DISPUTE THAT MAY ARISE WHICH IS COVERED BY THIS SECTION 26, UNLESS IT INVOLVES A QUESTION OF CONSTITUTIONAL OR CIVIL RIGHTS. INSTEAD, EACH PARTY AGREES TO SUBMIT SUCH DISPUTE TO IMPARTIAL ARBITRATORS IN ACCORDANCE WITH THIS SECTION 26.
If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions will remain in full force and effect and in no will be affected, impaired or invalidated.
29. Entire Agreement
This Agreement, including the Purchase Order, Manufacturing Agreement, and Vendor Guide constitutes the entire agreement between the parties and supersedes any previous agreement between the parties. This Agreement may not be altered, modified, amended, or changes in whole or in part, except in writing and executed by both parties.
Owlet may request access for inspection of a product shipment at the supplier facility at any time prior to a scheduled shipment. The Owlet representative will transmit a copy of the completed inspection report to indicate approval of the shipment.
The supplier must notify Owlet prior to implementation of any changes that may affect the ability of the purchased product to meet specified requirements.
If the supplier manufactures finished devices, any production specification documents must be reviewed and approved by both the contract manufacturer and by Owlet before use. Only approved specifications may be used to manufacture production devices.
31. Change Notification
Suppliers shall notify Owlet Baby Care, of any change to the materials or to the process for manufacturing the materials by providing a written notice ("Change Notification") at least 90 days prior to the date the change will take affect. In the case of materials discontinuation , at least 180 days advanced notification is required.