Eridu Corporation

Terms and Conditions of Purchase

1. TERMS OF PURCHASE: The purchase order, together with any non-disclosure agreement, these terms and conditions, and any attachments and exhibits, specifications, drawings, notes, instructions, and other information, whether physically attached or incorporated by reference (collectively the “Purchase Order”), constitutes the entire and exclusive agreement between ERIDU Corporation (the “Buyer” or “Eridu”) and you (the “Supplier”) for the supply of certain good and/or services (“Goods and/or Services”). Terms contained in Supplier’s purchase order confirmation, acknowledgement, acceptance, release, invoice or other written correspondence that are additional to or different from, the terms set forth herein, are specifically rejected by Buyer.
2. PRICES: The acceptance of this Purchase Order constitutes a guarantee by Supplier that the prices to be charged for Goods and/or Services do not exceed the lowest price charged to any customer within the last 12 months for similar or lesser quantities.
3. LEAD TIME AND DELIVERY: Supplier is responsible for conforming to lead-time and delivery requirement as stated on purchase orders. Supplier will immediately notify Buyer if timely performance under the Purchase Order is delayed or is likely to be delayed. Goods and/or Services will be received from 8:00 AM to 4:00 PM (Pacific time), Monday through Friday. Arrivals after 4:30 PM (Pacific time) may be refused by Buyer. All refused shipments shall be delivered the next working day within appropriate hours at Supplier’s expense. If Supplier deliver products and services after the delivery date, Buyer may reject such goods and services. Supplier shall advise Buyer sufficiently in advance of delivery of the Goods and/or Services if mechanical unloading device will be required for unloading. Detention or redelivery charges resulting from Supplier’s failure to conform to these requirements will be for Supplier’s account.
4. INVOICES: Supplier will submit invoices showing the following information: Purchase Order number, item number: description of item; size of item; unit prices; each applicable tax; extended totals; and any other information specified elsewhere herein. Payment of invoice will not constitute acceptance of products and will be subject to adjustment for errors, shortages, defects in the products or other failure of Supplier to meet the requirements of this Purchase Order. Buyer may at any time set off any amount owed to Supplier against any amount owed by Supplier or any of its affiliated companies to Buyer. Invoices submitted more than 30 days after receipt of goods and/or services by Buyer will be subject to a ten percent (10%) discount off the invoiced amount plus an additional ten percent (10%) for each month thereafter.
5. TERMS OF PAYMENT/ RETURNS: The terms of payment are net forty-five (45) days after the receipt of Supplier invoice or receipt of complete delivery of the Goods and/or Services, whichever is later. Buyer will pay only against a properly prepared invoice by Supplier. Buyer may at any time set off any amount owed by Buyer to Supplier against any amount owed to Supplier or any of its affiliates to Buyer. Buyer may return to Supplier, at Supplier’s own risk and expense, including, without limitation, transportation and insurance charges: (i) products that do not meet the warranties specified herein; (ii) products which are not accepted pursuant to Section 9; and (iii) products which constitute over-shipments or early shipments by Supplier.
6. PACKING AND SHIPMENT: Time is of the essence. Supplier shall immediately notify Buyer in the event that Supplier’s timely performance under this Purchase Order is or is likely to be delayed, in whole or in part, and Supplier shall provide Buyer with all available information regarding the reasons for such delay. Such notice shall not constitute a waiver by Buyer of any of Supplier’s obligations hereunder. Unless otherwise specified, when the price of this Purchase Order is based on the weight of the ordered goods, such price is to cover only the net weight of material ordered, and no charges will be allowed for packing, handling, transportation, storage or other packing requirements. Unless otherwise specified, Supplier will package and pack all goods in a manner which is (i) in accordance with good commercial practice, (ii) acceptable to common carriers for shipment at the lowest rate for the particular goods, (iii) in accordance with I.C.C. regulations, and (iv) adequate to insure safe arrival of goods at the named destination and (v) certificate of analysis. Supplier will mark all containers with necessary lifting, handling, and shipping information and with Purchase Order numbers, date of shipment, and the names of the consignee and consignor. An itemized packing list must accompany each shipment. No partial or complete delivery will be made prior to the due dates shown unless Buyer has given prior written consent. If the specified mode of transportation would not permit Supplier to meet the Delivery Date, Supplier shall ship such products by air freight or other expedient means acceptable to Buyer, and Supplier shall pay the difference in cost of freight.
7. INCOTERMS/ EXPORT REGULATIONS: Unless otherwise specifically provided on the face of the order, the products ordered hereunder will be delivered on an F.O.B. destination basis. For international shipments, the terms will be DDP (Delivered Duty Paid), with all customs, duties, costs, taxes, insurance premiums, and other expenses relating to such transportation and delivery to be paid by Supplier. The Supplier must provide all information required to comply with any applicable import and export laws and regulations, including but not limited to import classification (such as Harmonized Tariff Schedule), export classification (such as Export Control Classification Number), and country of origin of all items supplied to Buyer.
8. WARRANTY AND QUALITY: Supplier warrants that all goods delivered under this Purchase Order: (i) will be free from defects in workmanship, material and manufacture; (ii) will be new and unused and will comply with the requirements of this Purchase Order, including any drawings or specifications incorporated herein or samples furnished by Supplier; and (iii) where design is Supplier’s responsibility, will be free from defects in design. Supplier must notify the Buyer of changes in the Goods and/or Services prior to implementation of any changes that affect the ability of the Goods and/or Services to meet specified purchase requirements. Supplier will work with the Buyer to resolve quality issues that arise. Supplier further warrants that it has good unencumbered title to the Goods and/or Services, and that all Goods and/or Services will be of merchantable quality, will be fit for the purposes intended by Buyer and will conform to industry safety standard requirements. The foregoing warranties constitute conditions to this Purchase Order and are in addition to any standard factory, manufacture or extended warranties provided by Supplier, whether expressed or implied. All warranties shall run to Buyer and to its customers.
9. INSPECTION AND ACCEPTANCE: Notwithstanding any prior inspection or payments, all goods will be subject to final inspection and acceptance at Buyer’s plant within a reasonable time after delivery. In case any item is defective in material or workmanship, or otherwise not in conformity with the requirements of this order, Buyer will have the right to reject it, to require correction or to accept it with an adjustment in price. Any item that has been rejected or required to be corrected must be replaced or corrected by and at the expense of Supplier, promptly after notice. If after being requested by the Buyer, Supplier fails to promptly replace or correct any defective item, then Buyer (i) may, by contract or otherwise, replace or correct such item and charge to Supplier the cost occasioned thereby, (ii) may, without further notice, cancel this Purchase Order for default in accordance with item 10 below, or (iii) may require an appropriate reduction in price. If any of the products or services delivered by Supplier do not meet the warranties specified herein or otherwise applicable, Buyer may, at its option, (i) require Supplier to correct any defective or non-conforming products by repair or replacement at no charge to Buyer, or (ii) return such defective or non-conforming products to Supplier at Supplier’s expense and recover from Supplier all amounts paid heretofore, (iii) correct the defective or non-conforming products itself and charge Supplier the cost of such correction, (iv) obtain a refund from Supplier for all amounts paid for any defective or non-conforming services, or (v) utilize the defective product and require an appropriate reduction in price. The foregoing remedies are in addition to all other remedies at law or in equity or under this Purchase Order, for damages or otherwise, and shall not be deemed to be exclusive.
10. TAXES: Supplier is responsible for invoicing all applicable taxes, charges, fees, levies and other assessments imposed or collected by any government entity worldwide on sales or products and services pursuant to this Purchase Order. If Buyer provides a direct pay certificate, certification of exemption or reduced rate of tax by an applicable tax authority, then Supplier agrees not to invoice any such taxes. Buyer shall withhold taxes as required under applicable law on payments made to Supplier herein and shall be required to remit to Supplier the net proceeds thereof.
11. CHANGE ORDERS: The Buyer may at any time, by a written order, suspend performance hereunder, increase or decrease the ordered quantities, change the due date or make changes in any one or more of: drawings, designs or specifications; method of shipment or packing; and place of delivery. If the change causes an increase in cost or the time required by Supplier for performance of this Purchaser Order and Supplier so notifies Buyer, then an equitable adjustment will be made in the order price or delivery schedule or both, and the Purchase Order will be modified accordingly in writing. No claim by Supplier for such an adjustment will be valid unless asserted within twenty (15) days from the date of receipt by Supplier of the notification of change; provided, however, that such period may be extended upon the written approval of Buyer.
12. TERM AND TERMINATION: The Purchase Order may be cancelled or terminated by Buyer with or without cause, upon 15 day written notice to Supplier. Upon receipt of such termination, Supplier will inform Buyer of the extent in which it has completed performance as of the date of the notice and Supplier will deliver to Buyer whatever the product then exists. Buyer will pay Supplier actual and reasonable costs for all work performed and accepted through the effective date of the termination, but in no event such reimbursement will exceed the agreed upon prices.
13. RISK OF LOSS OR DAMAGE: Notwithstanding any prior inspections and irrespective of the F.O.B. point name herein, Supplier will bear all risk of loss, damage or destruction to the ordered goods until final acceptance of the goods by Buyer at destination. Supplier will bear the same risk with respect to any goods rejected by Buyer. Buyer, however, will be responsible for any loss occasioned by the gross negligence of its employees acting within the scope of their employment.
14. IMPORTS AND EXPORTS: Supplier is the importer and exporter of record and will comply with all imports and export laws and administrative requirements, including payment of all duties, taxes and fees associated with the import and export of Supplier’s products including but not limited to product safety and environmental requirements. Upon Buyer’s request, Supplier will promptly provide all information necessary to export and import products, including, as applicable the Export Control Classification Numbers (ECCN) and will notify Buyer in writing of any changes to the information provided by Supplier to export and import products.
15. PROPRIETARY INFORMATION/CONFIDENTIALITY: Supplier agrees that any data, designs, materials, specifications and all other business, product, technical and financial information it obtains from Buyer, including information relating to any Purchase Order, shall be “Confidential Information” and is the sole property of Buyer. No Confidential Information may be used by Supplier to compete or assist any person to compete in the business of Buyer or its affiliates. To the extent that the Goods and/or Services, services and/or deliverables provide by Supplier (i) improves Buyer’s intellectual property, (ii) is co-developed by Buyer and/or (iii) results from feedback provided by Buyer, Buyer shall own all intellectual property rights in any such Goods and/or Services, services and/or deliverables provided in connection with Goods and/or Services, services and/or deliverables provided. Any copyrightable material shall be “work for hire” to the extent permitted by law; and if for any reason such material is not “work for hire,” Supplier hereby does assign all right, title and interest in such materials to Buyer and agrees to assist Buyer, at Buyer’s expense, to perfect such interest. Supplier will hold in confidence and will not use or disclose any Confidential Information without Buyer’s prior written consent and shall similarly bind its affiliates, employees, consultants and subcontractors in writing. Supplier shall not disclose any Confidential Information to any person or entity other than those employees, consultants or subcontractors of Supplier who have a legitimate need to know.

    Supplier’s nondisclosure obligation hereunder shall not apply to information it can document is generally available to the public or was rightfully disclosed to Supplier by a third party without restriction. Upon Buyer’s request, or upon termination of this Purchase Order, Supplier shall promptly return all Confidential Information and any copies thereof to Buyer. To the extent that Supplier owns or controls (presently or in the future) any patent rights, copyright rights, mask work rights, trade secret rights, or any other intellectual property or proprietary rights that may block or interfere with, or may otherwise be required for, the exercise by Buyer of the rights assigned to Buyer under this Purchase Order (collectively, “Related Rights”), Supplier hereby grants or will cause to be granted to Buyer a non-exclusive, royalty-free, irrevocable, perpetual, transferable, worldwide license (with the right to sublicense) to make, have made, use, offer to sell, sell, import, copy, modify, create derivative works based upon, distribute, sublicense, display, perform and transmit any products, software, hardware, methods or materials of any kind that are covered by such Related Rights, to the extent necessary to enable Buyer to exercise all of the rights assigned to Buyer under this Purchase Order.

16. INDEMNIFICATION: Suppler agrees to indemnify Buyer, its agents, customers, successors and assigns against any loss, damage and liability (including costs and expenses) for actual or alleged infringement of any patent, copyright or trademark arising out of the use or sale of the goods by Buyer, its agents or customers-provided, however, that Buyer must notify Suppler of any suit, claim or demand involving such infringement, and permit Supplier to defend against or settle the same. If any injunction is issued as the result of any such infringement, Supplier agrees, at Buyer’s option, to (i) refund to Buyer amounts paid to Supplier for the goods covered by the injunction, or (ii) furnish Buyer with acceptable and non-infringing goods. Supplier agrees to indemnify Buyer against any and all liabilities and expenses resulting from any alleged defect in goods, whether latent or patent, including allegedly improper construction and design, or from failure of the goods to comply with specifications. Supplier warrants that there are no liabilities for royalties, mechanics liens or other encumbrances on the goods supplied and agrees to indemnify Buyer against any such liabilities. In addition, Supplier shall not permit any mechanic’s, materialmen’s or other lien to be placed upon or against Buyer’s assets or real estate, Buyer’s customer’s assets or real estate or Buyer’s customer’s or landlord’s assets or real estate or any portion thereof. If any such lien is filed, Supplier, within fifteen (15) days after written demand by Buyer or customer of Buyer, shall cause the lien to be paid and removed or, if Buyer has elected to pay and remove such lien, Supplier shall reimburse Buyer for such sums plus interest or penalties incurred by Buyer or customer of Buyer with respect thereto within ten (10) business days of such written demand. The representations and indemnifications of this section are in addition to all other rights or indemnification of Buyer against Supplier.
17. TERMS AND CONDITIONS SPECIFIC TO PROVIDING SERVICES.  In addition to the other terms and conditions contained herein, which are applicable to Supplier’s providing services to Eridu, the following terms and conditions also apply:
    1. INTELLECTUAL PROPERTY OWNERSHIP.  All intellectual property rights throughout the world, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works and all other moral or intangible rights, in each case whether registered or unregistered, and all applications for registration thereof (collectively, “Intellectual Property Rights”) in and to all documents, (including without limitation any deliverables), work product, and other materials or disclosures that are delivered to Eridu under this Purchase Order or prepared by or on behalf of Supplier in the course of performing the services (collectively, the “Work Product”) shall be owned exclusively by Eridu. Supplier agrees that the Work Product is specially ordered or commissioned by Eridu and constitutes work made for hire authored by Supplier under 17 U.S.C. §101. On behalf of itself and its employees, contractor and agents, Supplier hereby forever conveys, transfers, assigns, and otherwise quitclaims to Eridu all right and title to the Work Product.  Supplier shall cooperate with Eridu to execute and file legally appropriate documents to record Eridu’s ownership of such Intellectual Property Rights at Eridu’s request and expense.  To the extent any pre-existing Intellectual Property Rights are contained in the Services provided and/or deliverables, Supplier grants Eridu an irrevocable, perpetual, fully paid-up, royalty-free, assignable, worldwide license to use, perform, display, execute, reproduce, distribute, transmit, modify (including to create derivative works), import, make, have made, sell, offer to sell, and otherwise exploit any pre-existing Intellectual Property Rights to the extent incorporated in, combined with or otherwise necessary for the use of any deliverables. All other rights in and to the pre-existing Intellectual Property Rights are expressly reserved by Supplier.
    2. THIRD PARTY INFRINGEMENT CLAIMS.  Supplier agrees to defend, or at its option settle, any action brought against Eridu, and pay any final award or damages assessed against Eridu (or agreed to be paid by Supplier in settlement) resulting from such action, insofar as that action is attributable to any patent to be infringed by the subject Services and/or deliverable.  The foregoing indemnification obligation is subject to Eridu: (i) providing prompt written notice of any claim for which defense is sought; (ii) tendering control of such defense to Supplier; and (iii) providing reasonable assistance and information at Supplier’s cost and expense.  Nothing herein shall restrict Eridu’s right to participate in any such defense.  If such an action is brought, or Supplier reasonably determines in its discretion that such a claim is likely to be made, Supplier shall have the option to (i) replace or modify the services and/or deliverables so they are no longer infringing but functionally equivalent, or (ii) obtain the right for Eridu to continue using the services and/or deliverables.
    3. INDEPENDENT CONTRACTORS.  The relationship created between the parties hereto is that of independent contractors.  Nothing herein creates a relationship of employer and employee, principal and agent, partnership or the like between Eridu, Supplier, or any of their affiliates or personnel.  Neither party will have authority to enter into any contract on behalf of the other.
18. ASSIGNMENTS: No right or obligation under this Purchase Order (including the right to receive monies due) may be assigned by Supplier without prior written consent of Buyer, and any purported assignment without such consent will be void. Buyer may assign this Purchase Order at any time if such assignment is considered necessary by Buyer in connection with a sale of Buyer’s assets or a transfer of its obligations.
19. LANGUAGE/APPLICABLE LAW: All documents shall be in the English language, and all measurements shall be expressed in U.S. units. This Purchase Order will be governed by the laws of the State of California, without regards to the choice of law provisions thereof. The United Nations Convention on Contracts for the International Sale of Goods and/or Services and the Uniform Computer Information Transactions Act do not apply. The exclusive jurisdiction and venue of any action relating to this Purchase Order shall be the County of Santa Clara, California or the United States District Court for the Northern District of California and each of the parties hereto submits itself to the exclusive jurisdiction of such courts and waives any argument relating to the convenience of forum. This Purchase Order shall be construed as if jointly drafted by both parties.
20. ARBITRATION: If disagreements arise under this Purchase Order or the execution thereof, including any claim whether in contract, tort (including negligence), strict product liability or otherwise, the senior management of both parties shall meet to attempt to resolve such disagreements. If the disagreements cannot be resolved by the senior management, an informal binding arbitration shall be initiated with JAMS and administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures (unless the parties mutually agree to select another set of governing arbitration rules). The parties understand that they are waiving their rights to a jury trial. As a minimum set of rules in the informal arbitration, the parties agree as follows: (i) A party will serve on the other party (a) a written notice of claim, specifying the exact amount claimed and the provision of the Purchase Order or this terms and conditions or other authority for the claim and (b) a copy of the supporting documents; (ii) within ten (10) business days after the service mentioned above, the responding party will serve upon the serving party (a) a written response, setting out its position and specifying the contract or other provisions relied upon and (b) a copy of all supporting documents (it being understood that the written claim notice and response and the documents produced, but not the discussions mentioned in the first paragraph of this subsection (d), are admissible in the arbitration proceedings); (iii) the arbitration shall be held in San Jose CA by a single arbitrator mutually acceptable to both parties; provided, however, if the parties cannot agree on a single arbitrator, each party shall select one independent individual who shall meet to appoint a single arbitrator; (iv) the decision of the arbitrator shall be considered as a final and binding resolution of the disagreement which may be entered as judgment by any court of competent jurisdiction; (v) no court of law shall have jurisdiction over this agreement or this arbitration except to enforce the result, and neither party shall sue the other where the basis of the suit arises under or involves the interpretation of this agreement, except for enforcement of the arbitrator’s decision in the event that a party is not performing in accordance therewith; and (vi) each party shall bear its own costs and shall share the arbitrator’s costs equally. Any arbitration of any disagreement or controversy must be brought initiated with JAMS within one (1) year after the cause of action for the disagreement or controversy accrues.