Purchase Order Terms and Conditions

Entire Agreement.

These terms and conditions (“Terms”), together with those stated on the attached purchase order and any addenda or other documents incorporated herein by reference, constitute the sole and entire agreement of the parties (the “Order”) and supersedes all other written or oral understandings, agreements, contracts and communications with respect to the products or services covered by this Order. This Order apply to any repaired or replacement products provided by Seller hereunder. Buyer is not obligated to any minimum purchase or future purchase obligations under this Order.

Acceptance.

This Order may be revoked at any time prior to acceptance by Seller. Upon written acceptance of this Order, or upon shipment of products or commencement of services, Seller shall be bound by the provisions of this Order. Any terms or conditions not consistent with this Order are rejected and the terms of this Order prevail over all other terms or conditions contained in any of Seller’s invoices, general terms and conditions of sale or any other document provided by Seller.

Invoicing; Payment.

Invoices will be provided in duplicate, along with Buyer’s return copy, showing Order number, through-routing and weight, within 24 hours after shipment or same day if overnight shipment. Separate invoices will be provided for each shipment. Bills of lading and shipping notices must be forwarded with each invoice. Applicable taxes and other charges such as shipping costs, duties, customs, tariffs, imposts and government imposed surcharges shall be stated separately on Seller’s invoice. Each invoice submitted by Seller must reference this Order, and Buyer reserves the right to return all incorrect invoices. Unless otherwise specified on the face of a purchase order, Buyer shall pay the invoiced amount within sixty (60) days after receipt of a correct invoice. Buyer shall pay Seller the lower of (i) the amount agreed upon and specified in the this Order, or (ii) Seller’s quoted price on date of shipment (for products), or the date services were started (for services). Payment by Buyer shall not constitute acceptance. Seller represents and warrants that the price for the products or services is the lowest price charged by Seller to any of its external buyers for similar volumes of similar products or services. If Seller charges any other buyer a lower price, Seller must apply that price to all products or services under this Order. If Seller fails to meet the lower price, Buyer, at its option, may terminate this Order without liability.

Shipping and Delivery.

Time is of the essence. Delivery shall be made pursuant to the schedule, via the carrier to the place and on the delivery date (“Delivery Date”) specified on the face of this Order. Shipments must conform to the quantity ordered unless otherwise agreed in writing by Buyer. Delivery must be 100% completed by the Delivery Date and if Seller fails to do so, Buyer may terminate this Order or require Seller to make shipment by air freight at Seller’s expense. Buyer reserves the right to return, shipping charges collect, all products received in advance of the delivery schedule. If no delivery schedule is specified, delivery will be made by using standard ground transportation. If no method of shipment is specified in the purchase order, Seller shall use the least expensive carrier. Seller shall package all items in suitable containers to permit safe transportation and handling. Buyer’s Order number must appear on all shipping containers, packing sheets, delivery tickets and bills of lading. Adequate protective packing and opaque wrap for pallets will be furnished at no additional charge. A packing memorandum/packing list will be enclosed with each shipment; and when more than one package is shipped, the package containing the memorandum will be conspicuously identified. Seller must provide a complete IMEI/ESN list with unlock codes (if applicable) sent via email in Excel format separated per make, model and color at time of shipment. All products and services shall be delivered to the address specified in this Order (the “Delivery Location”) during Buyer’s normal business hours or as otherwise instructed by Buyer.

Title and Risk of Loss.

Identification of products under § 2-501 of the Florida Uniform Commercial Code occurs at the moment this Order is accepted by Seller. Title to products and risk of loss will remain with Seller until Buyer actually inspects and accepts the goods at its place of business. Acceptance by Buyer of a partial shipment will not be deemed to constitute acceptance of the entire Order.

Inspection and Rejection of Products.

Buyer has the right to inspect the products on or after the Delivery Date. Buyer, at its sole option, may inspect all or a sample of the products, and may reject all or any portion of the products if it determines the products are nonconforming or defective. If Buyer rejects any portion of the products, Buyer has the right to: (a) rescind this Order in its entirety; (b) accept the products at a reasonably reduced price; or (c) reject the products and require replacement of the rejected products. If Buyer requires replacement of the products, Seller shall, at its expense, promptly replace the nonconforming products and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective products and the delivery of replacement products. If Seller fails to timely deliver replacement products, Buyer may replace them with products from a third party and charge Seller the cost thereof and terminate this Order. Any inspection or other action by Buyer under this Section shall not reduce or otherwise affect Seller’s obligations under this Order, and Buyer shall have the right to conduct further inspections after Seller has carried out its remedial actions.

Use of Information.

Any specifications, drawings, sketches, models, samples, tools, technical information or data, written, oral or otherwise furnished to Seller by Buyer will remain Buyer’s property. All copies of such information in written, graphic or other tangible form will be returned to Buyer upon Buyer’s request unless such information was already known to Seller free of any obligation to keep it confidential, or has been or is subsequently made public by Buyer or a third party. Seller will keep such information confidential and use it only for purposes of this Agreement. No information furnished by Seller to Buyer will be considered by Buyer to be confidential unless Seller so notifies Buyer in writing at the time furnished.

Insignias; Advertising.

Products or services rejected or not accepted by Buyer which utilize any of Buyer’s names, trade names, trademarks, insignia, symbols, decorative designs or evidences of its inspection (“Insignia”) will have all Insignia removed prior to any sale, use or disposition thereof. Seller will not utilize any of Buyer’s Insignias, symbols or decorative designs in any of Seller’s advertising, promotional material or reference material without the prior written consent of Buyer.

Set-off.

Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Buyer to Seller.

Warranties.

Seller warrants to Buyer that for a period of fifteen (15) months from the actual Delivery Date or for the period provided in Seller’s standard warranty covering the Goods, whichever is longer, all products will: (a) be free from any defects in workmanship, material and design; (b) conform to applicable specifications, drawings, designs, samples and other requirements specified by Buyer; (c) be fit for their intended purpose and operate as intended; (d) be merchantable; (e) be free and clear of all liens, security interests or other encumbrances; and (f) not infringe or misappropriate any third party’s patent or other intellectual property rights. These warranties survive any delivery, inspection, acceptance or payment of or for the products by Buyer. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Buyer’s discovery of the noncompliance of the products with the foregoing warranties.

Seller Indemnification.

Seller shall at its expense defend, indemnify and hold harmless Buyer its subsidiaries, affiliates, successors or assigns and their respective directors, officers, shareholders and employees and Buyer’s customers (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with; (a) the products or services purchased from Seller; (b) Seller’s negligence or willful misconduct; (c) Seller’s breach or nonperformance of any of the terms of this Order; and (d) any claim that Buyer’s or Indemnitee’s use or possession of the products infringes or misappropriates the U.S. or foreign patent, copyright, trade secret or other intellectual property right of any third party. In no event shall Seller enter into any settlement without the Indemnitee’s prior written consent.

Insurance.

Seller shall be solely responsible for maintaining such adequate general liability, product liability, health, auto, workers’ compensation, unemployment compensation, disability, liability, and other insurance, as is required by law or as is the common practice in Seller’s trade or business, whichever affords greater coverage. Upon request, Seller shall provide Buyer with certificates of insurance or evidence of coverage before commencing performance under this Order. Seller shall provide adequate coverage for any Buyer property under the care, custody or control of Seller. Except where prohibited by law, Seller shall require its insurer to waive all rights of subrogation against Buyer’s insurers and Buyer or the Indemnitees.

Compliance with Law.

Seller is in compliance with and shall comply with all applicable laws, regulations and ordinances. Seller has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Order. Seller shall comply with all export and import laws of all countries involved in the sale of products or services under this Order. Seller assumes all responsibility for shipments of products or services requiring any government import clearance. Buyer may terminate this Order if any government authority imposes antidumping duties, countervailing duties or any retaliatory duties on the products or services.

Termination.

Buyer may terminate this Order, in whole or in part, at any time with or without cause for undelivered or unshipped products or unperformed services on ten (10) business days’ prior written notice to Seller. In addition to any remedies that may be provided under these Terms, Buyer may terminate this Order with immediate effect upon written notice to the Seller, either before or after the acceptance of the products, if Seller has not performed or complied with any of these Terms, in whole or in part. If the Seller becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then the Buyer may terminate this Order upon written notice to Seller. If Buyer terminates this Order for any reason, Seller’s sole and exclusive remedy is payment for the products received and accepted by Buyer prior to the termination.

Limitation of Liability.

IN NO EVENT SHALL BUYER BE LIABLE TO SELLER OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT, WHETHER OR NOT BUYER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

Amendment, Waiver, Etc.

No amendment or other modification of the terms of this Order, or waiver by any party of any of the provisions of this Order, shall be effective unless explicitly set forth in writing and signed by Buyer and Seller. Except as otherwise set forth in this Order, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Order shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

Confidential Information.

All non-public, confidential or proprietary information of the Buyer, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Buyer to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with this Order is confidential, solely for the use of performing this Order and may not be disclosed or copied unless authorized by Buyer in writing. Upon Buyer’s request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to the Seller at the time of disclosure; or (c) rightfully obtained by the Seller on a non-confidential basis from a third party.

Force Majeure.

Neither party shall be liable to the other for any delay or failure in performing its obligations under this Order to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party’s fault or negligence, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable (“Force Majeure Event”). Force Majeure Events include, but are not limited to, acts of God or the public enemy, government restrictions, floods, fire, earthquakes, explosion, epidemic, war, invasion, hostilities, terrorist acts, riots, strike, embargoes or industrial disturbances. Seller’s economic hardship or changes in market conditions are not considered Force Majeure Events. Seller shall use all diligent efforts to end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized and resume performance under this Order. If a Force Majeure Event prevents Seller from carrying out its obligations under this Order for a continuous period of more than fifteen (15) business days, Buyer may terminate this Order immediately by giving written notice to Seller.

Assignment.

Seller shall not assign, transfer, delegate or subcontract any of its rights or obligations under this Order without the prior written consent of Buyer. Buyer may at any time assign, transfer or subcontract any or all of its rights or obligations under this Order without Seller’s prior written consent.

Relationship of the Parties.

The relationship between the parties is that of independent contractors. Nothing contained in this Order shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from this Order.

Governing Law; Jurisdiction.

All matters arising out of or relating to this Order shall be governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision. Any proceeding arising out of or relating to this Order shall be instituted in the federal courts of the United States of America or the courts of the State of Florida in each case located in the City of Orlando and County of Orange, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.

Notices.

All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of this Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Order, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.

Severability.

If any term or provision of this Order is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Order or invalidate or render unenforceable such term or provision in any other jurisdiction.

Charge Back.

A 1% chargeback penalty will be assessed to Supplier if EDF files are not received from Supplier before the Product on this PO is physically delivered to Q1.

Last Updated November 15, 2023

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