PURCHASE ORDER TERMS AND CONDITIONS
- Terms and Conditions. The terms and conditions set forth below, together with those appearing on the face of this Purchase Order, and any attachments hereto (collectively, the “Order”), constitute the complete and exclusive agreement between ThinkGeek, Inc. (“ThinkGeek”) and the party identified on the face of the Order (“Seller”). In the event of conflict between the terms and conditions governing this Order and those contained in a written and fully executed purchase agreement, license agreement or services agreement (“Agreement”), the subject of which is the goods and/or services being purchased or licensed under this Order respectively, the terms and conditions contained in such Agreement shall supersede the terms and conditions governing this Order.
- No modification of this Order shall be binding on either party unless in writing and signed by an authorized representative of each party.
PRICES AND INVOICES.
- Price. Seller shall sell (or license, as applicable) to ThinkGeek the goods (“Goods”) and/or services (“Services”) shown on the face of this Order at the prices specified. Except as otherwise provided in this Order, such prices are exclusive of applicable taxes (if any), freight charges, and duties.
- Taxes. ThinkGeek shall be responsible for all applicable taxes with respect to payments made under this Order, except for taxes measured by Seller’s net income or assets, business and occupation taxes, and legally required withholding taxes. Where applicable, Seller will invoice ThinkGeek for such taxes, which will be set forth in a separate manner within the invoice. ThinkGeek shall include such taxes with the payment or provide Seller with the appropriate documentation to support exemption from such tax.
- Payment. Unless otherwise specified in this Order, payment for Goods and/or Services by ThinkGeek shall be thirty (30) days from the later of ThinkGeek’s receipt of the goods or an appropriate invoice from Seller.
- No Acceptance. Payment by ThinkGeek will not constitute acceptance of Goods and/or Services, nor impair ThinkGeek’s right to inspect Goods and/or Services, or invoke any of ThinkGeek’s remedies.
SHIPMENT AND DELIVERY.
- Shipment Terms; Title; Risk of Loss. Unless otherwise specified in this Order, shipment of Goods shall be F.O.B. Seller’s place of shipment/export. ThinkGeek reserves the right to specify a specific delivery location. All Goods must be forwarded by the route taking lowest reasonable transportation rate or in accordance with any special shipping instructions. Otherwise the difference in freight rate and extra cost of transportation will be Seller’s. Title and risk of loss or damage shall pass from Seller to ThinkGeek upon Seller’s delivery of Goods to the carrier. ThinkGeek will bear all shipping and transport expenses. Seller shall bear all expenses related to packing, loading, and delivery of Goods to the designated carrier, and loading of Goods onto carrier’s conveyance.
- Protection of Goods. Seller shall preserve, package, handle and pack Goods so as to protect Goods from loss or damage, in conformance with good commercial practice. Seller shall be responsible for any loss or damage due to its failure to properly preserve, package, handle or pack Goods. ThinkGeek shall not be required to assert any claims for such loss or damage against the carrier involved.
- Packing List. Each delivery of Goods to ThinkGeek shall include a packing list that contains at least (i) the Order number, (ii) the quantity shipped, and (iii) the date of shipment. The information on the packing list must agree with the information on the commercial invoice.
- Timely delivery. Unless otherwise specified in this Order, time is of the essence for this Order. Seller shall give ThinkGeek written notice of any prospective failure to ship Goods and/or provide Services on the delivery date specified by ThinkGeek in this Order (“Delivery Date”).
- Early Shipment. If Seller schedules any shipment to arrive more than three (3) working days prior to the Delivery Date, ThinkGeek may delay processing the corresponding invoice until the Delivery Date.
- Portion of Goods Available. If only a portion of Goods is available for shipment to meet the Delivery Date, Seller shall ship the available Goods unless directed by ThinkGeek to reschedule shipment. If Seller ships Goods by a method other than as specified in this Order, Seller shall pay any resulting increase in the cost of freight incurred over that which would have been incurred had Seller shipped Goods in a timely fashion by the method of transportation specified by ThinkGeek.
- Over shipment of Goods. Unless otherwise specified in this Order, if Seller makes any shipment in excess of the ordered quantity of Goods under this Order, ThinkGeek will make commercially reasonable efforts to return such excess quantity at the expense of Seller; however, in no event will ThinkGeek be obligated to pay Seller for such excess quantity of Goods without ThinkGeek’s written confirmation that it agrees to do so.
- Untimely Shipment. If, due to Seller’s failure to timely ship Goods, the specified method of transportation would not permit Seller to meet the Delivery Date, the Goods affected shall be shipped by air transportation or other expedient means acceptable to ThinkGeek. Seller shall pay for any resulting increase in the cost of freight incurred over that which would have been incurred had Seller shipped Goods in a timely fashion by the method of transportation specified by ThinkGeek.
- Termination. This Order may be terminated if delivery of Goods is not made or Services are not performed by the date specified in the face of this Order. No change in scheduled delivery date or performance will be permitted without ThinkGeek’s prior written consent. No acceptance of Goods and/or Services after the scheduled delivery date will waive ThinkGeek’s rights with respect to such late delivery, nor shall it be deemed a waiver of future compliance with the terms hereof.
- Inspections. ThinkGeek has the right to inspect Goods prior to delivery.
- LICENSE. If Goods include software and/or related documentation (“Software”), Seller grants to ThinkGeek a license in accordance with ThinkGeek’s standard software license terms and conditions, as may be mutually agreed by ThinkGeek and Seller, or, at a minimum, a non-exclusive, royalty-free, worldwide license to use, reproduce, display and distribute such Software for ThinkGeek’s internal use.
WARRANTIES; SURVIVAL OF WARRANTY.
- Seller warrants that it has the right and authority to enter into this Order and, if Goods include Software, to license the Software to ThinkGeek in accordance with the terms hereof as of the effective date of this Order.
- Seller warrants that all Goods and/or Services shall (i) be free from defects in design, materials, workmanship, production, instruction manuals, labeling, health and safety warnings, instructions and the like, (ii) do not infringe any patent, trademark, copyright or other intellectual property right of a third party, (iii) be free of all liens, encumbrances, and other claims against title, and, as it relates to Services, be performed in a professional and workmanlike manner consistent with industry standards, (iv) strictly conform to all legal requirements, governmental regulations and applicable health, hygiene, safety and environmental standards in the United States and in China; (v) be of merchantable quality and fit for the ordinary purposes for which they are used and for the intended use of ThinkGeek and ThinkGeek’s customers in accordance with applicable instructions and marketing materials, and (vi) be suitable and fit for human use (as the case may be). All specified warranties shall survive and shall not be deemed waived by delivery, acceptance or payment for the Goods and/or Services by ThinkGeek, and shall be in effect from the Delivery Date for the longer of (a) Seller’s normal warranty period or (b) a one (1) year period from such Delivery Date. If at any time during such period the Goods do not function as warranted, ThinkGeek may return it, and Seller will repair or replace it without charge, or if Services, re-perform the Services. Goods and/or Services required to be so repaired, replaced or re-performed shall be subject to the provisions of this section.
INDEMNITY; INTELLECTUAL PROPERTY; CONFIDENTIAL INFORMATION.
- Indemnification. Seller agrees to defend, indemnify, and hold harmless ThinkGeek and its affiliates, subsidiaries, parent corporations, assigns, subcontractors, and customers from and against all claims, losses, demands, fees, damages, liabilities, costs, expenses, obligations, causes of action, suits, or injuries, of any kind or nature, which arises out of (i) this Order, including without limitation the actual or alleged breach by Seller of any warranty or representation herein, (ii) any defect or unsafety in the design, materials, production or workmanship of the Goods and/or Services regardless of whether such defect is caused by the negligence of Seller, (iii) any sickness, injury to or death of any person or property damage or any other loss suffered or allegedly suffered by any person or entity arising out of or otherwise in connection with the Goods and/or Services sold or provided by Seller, and (iv) the use, possession or ownership of the Goods or performance of Services related thereto, including any actual or claimed infringement of patents, trademarks, service marks, trade secrets, mask work rights, copyrights, or any other intellectual property rights of a third party, with respect to Goods and Services, except to the extent that the infringement arises solely and directly out of compliance with ThinkGeek’s written specifications.
- Infringing Goods or Services. Without limiting the generality of Section 6.1 above, if the use by ThinkGeek, or its affiliates, subsidiaries, parent corporations, assigns, subcontractors, or customers of any Good or receipt by ThinkGeek, or its affiliates, subsidiaries, assigns, subcontractors, or customers of any Service is enjoined (collectively, “Infringing Goods”), Seller shall at its expense use its commercially reasonable efforts to procure the right for ThinkGeek to continue using or receiving the Infringing Goods. If Seller is unable to do so, Seller shall at its expense: (i) replace the Infringing Goods with a non-infringing Goods without loss of functionality; (ii) modify the Infringing Goods to be non-infringing; or (iii) if unable to so replace or modify the Infringing Goods, refund in full all costs paid by ThinkGeek for the Infringing Goods and pay all reasonable costs incurred by ThinkGeek in replacing the Infringing Goods.
- Confidential Information, Privacy and Security. Seller and ThinkGeek may also exchange business or technical information and, if such information is identified and/or marked at the time as proprietary or confidential, the receiving party will guard its confidentiality as well as that party guards the confidentiality of its own proprietary information, but at least using reasonable care. Seller will not share or transfer the personally identifiable information of ThinkGeek customers, without the express consent of ThinkGeek and ThinkGeek customers. To prevent unauthorized access or disclosure, seller will implement physical, electronic and managerial procedures to safeguard and secure ThinkGeek confidential information and the personally identifiable information of ThinkGeek customers. This obligation will continue for two (2) years after receiving the information.
- LIMITATION OF LIABILITY. IN NO EVENT UNLESS REQUIRED BY APPLICABLE LAW WILL THINKGEEK BE LIABLE TO SELLER FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS ORDER.
DEFAULT AND TERMINATION.
- Definition. For purposes of this Order, the term “breach” shall include, without limitation, any: (i) proceeding, whether voluntary or involuntary, in bankruptcy or insolvency by or against Seller; (ii) appointment, with or without Seller’s consent, of a receiver or an assignee for the benefit of creditors; (iii) failure to provide ThinkGeek, upon request, with reasonable assurances of performance; or (iv) other failure to comply with this Order.
- Breach by Seller. If Seller breaches any provision of this Order, ThinkGeek may terminate the whole or any part of this Order, unless Seller cures the breach within ten (10) business days after receipt of ThinkGeek’s written notice of breach.
- Termination. In the event that ThinkGeek terminates this Order in whole or in part as provided in Section 8.2 above, ThinkGeek may procure, upon such terms and in such manner as ThinkGeek reasonably deems appropriate, goods or services similar to the Goods or Services as to which this Order is terminated. Seller shall reimburse ThinkGeek upon demand for all additional costs incurred by ThinkGeek in purchasing such similar goods or service.
- Rights and Remedies. The rights and remedies granted toThinkGeek pursuant to this Order are in addition to, and shall not limit or affect, any other rights or remedies available at law or in equity. ThinkGeek reserves the right to audit Seller to confirm compliance with this Order up to three (3) years after termination hereof.
- Certification. Upon ThinkGeek’s request, Seller shall provide ThinkGeek with an appropriate certification stating the country of origin of Goods, sufficient to satisfy the requirements of (i) the customs authorities of the country of receipt, and (ii) any applicable export licensing regulations, including those of the United States.
- Commercial Invoice. Seller shall issue a commercial invoice containing, but not limited to, the following information: (i) invoice number; invoice date; name and address of the Seller; name and address of ThinkGeek; a detailed description of the Goods; model numbers, serial numbers (if Goods are serialized; quantities in the weight and measure of the country to which the Goods are shipped); unit price of each Good; any taxes as may be applicable; total invoice value; and carrier name. The invoice must be issued in the language required by the country to which the Goods are shipped.
- Seller shall, upon ThinkGeek’s request, assist ThinkGeek in connection with the recall of any and all Goods in the event such recall is required by law or for safety reasons or is considered necessary or prudent at ThinkGeek’s sole discretion.
- Seller shall, upon ThinkGeek’s request, assist ThinkGeek in preparing any claim against any manufacturer of Goods for the recovery of compensation, damages, fines or penalties paid by ThinkGeek to third parties in connection with such Goods, including without limitation the provision of any information, documents and materials related to such manufacturer.
- Choice of Law. This Order shall be interpreted and governed by the laws of the Commonwealth of Virginia without reference to conflict of law principles. Venue for any dispute shall be the state courts in Fairfax County, Virginia or the federal courts in Alexandria County, Virginia.
- Resolution of Disputes. In the event of any dispute with respect to the construction and performance of this Order, the parties shall first resolve the dispute through friendly negotiations. In the event the parties fail to reach an agreement on the dispute within thirty (30) days after either party's request to the other party for resolution of the dispute through negotiations, either party may submit the relevant dispute to court of competent jurisdiction.
- Government Contracts. If Goods or Services acquired hereunder are for supply to the U.S. Government under either a prime or lower tier subcontract, clauses contained in the current issue of the Federal Procurement Regulations (FPR), Federal Acquisition Regulations (FAR) or Defense Acquisition Regulations (DAR) as applicable, which the government makes mandatory for a contractor under a government contract to include in its related contracts or subcontracts shall apply to this Order.
- No Assignment. Seller shall not assign its rights, duties or obligations hereunder without ThinkGeek’s prior written consent. Any attempt delegation or assignment shall null and void.
- Force Majeure. Neither party will be liable for any delays or failures in performance due to circumstances beyond such party’s reasonable control.
- Compliance. Seller will at all times comply with all applicable laws, rules and regulations, including without limitation the US Foreign Corrupt Practices Act. Seller shall furnish to ThinkGeek any information required to enable ThinkGeek to comply with such laws, rules and regulations in its use of the Goods and Services.
- Headings. The section headings used herein are for convenience of reference only and do not form a part of these terms and conditions, and no construction or inference shall be derived therefrom.
- Severability. If any term, condition, or provision in this Order is adjudicated to be invalid, unlawful or unenforceable to any extent, the parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Order. If the parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
- No joint venture. Nothing in this Order will be deemed to create a joint venture, partnership, or agency relationship between or empower one party to assume or create any obligation on behalf of the other.
- Attorneys Fees. If one party to this Order brings an action against the other party to enforce its rights under this Order, the prevailing party shall be entitled to recover its costs and expenses, including, without limitation, reasonable attorneys’ fees and costs incurred in connection with such action, including any appeal of such action.
- Waiver. Any waivers related or amendments to this Agreement, to be effective, must be in writing, signed by an authorized representative of each party.