1. Applicability. These purchase order terms and conditions (“Terms”) are applicable to and incorporated into any purchase order (“PO”) issued to a seller (“Seller”) by Habana Labs Ltd. or any of its subsidiaries and/or affiliates (in each instance, “Buyer”). The Terms will constitute the complete and exclusive statement of the agreement between Buyer and Seller with respect to the goods and/or services (collectively, the “Goods”) identified in the PO, except that (a) to the extent that any terms and conditions included directly on/in a PO directly contradict any of the Terms, the terms and conditions directly on/in the PO shall govern and control; and (b) the Terms will not supersede any prior formal written agreement (e.g., Product Purchase and Services Agreement) between the parties under which POs are contemplated or issued and where such agreement by its terms expressly supersedes the Terms of a later issued PO. Seller’s shipment or provision of any portion of the Goods will be Seller’s unqualified acceptance of all of the Terms. Seller agrees that any terms and conditions contained in any acknowledgement hereof, or in Seller’s invoice or other documentation that are inconsistent with or in addition to the Terms will have no effect and will not constitute any part of the PO or Terms.
2. Price, Payment Terms. Buyer will pay the purchase price for the Goods set forth on the PO, adjusted if appropriate based on Goods actually delivered and accepted at the prices defined. Seller shall deliver to Buyer an invoice for Goods ordered pursuant to a PO on or after the date that Seller delivers the Goods to Buyer. Each invoice shall contain the following information: Buyer’s PO number, a description of the Goods, quantities and unit prices, applicable model, part and/or serial numbers, and any additional detail reasonably needed to review the invoice for approval. Correct invoices shall be due and payable within Net terms printed on the PO, after receipt of both the Goods and the invoice. Invoices will not be accepted or paid if received more than 90 days after delivery of Products or Services. Charges not specifically identified on an applicable PO, with the exception of appropriate taxes, will not be allowed (or paid by Buyer) without prior written consent of Buyer. Buyer is entitled to adjust any payments for rejection, or any setoff or counterclaim arising out of this PO or any other of Buyer’s POs with Seller.
3. Taxes. Any taxes to be paid by Buyer shall be separately identified on the Seller’s invoice and, if not shown, shall be deemed included in the purchase price identified in the PO. In no event will Buyer be responsible for taxes based on Seller’s net income, gross revenue or employment obligations.
4. F.O.B. Point. Goods shall be shipped FOB the Buyer site set forth on the PO, with shipping costs and insurance prepaid by Seller. Seller shall be responsible for obtaining adequate insurance covering the Goods while the Goods are being transported and until risk of the loss thereof has passed to Buyer. Such insurance will be placed with reputable underwriters and will name Buyer as a loss payee, with all losses payable to Seller and Buyer as their interests may appear, and will contain a waiver of subrogation rights against Buyer.
5. Delivery Schedule. Seller shall deliver to Buyer the Goods identified on the PO on or five days before the delivery date specified in the PO. If Seller fails, for any reason, to deliver Goods by the specified delivery date, Buyer may cancel and terminate the affected PO without penalty and receive a full refund for any amounts that may have been prepaid for the Goods subject to the PO. Seller shall be responsible for any loss or damage due to its failure to properly preserve, package, handle, or otherwise secure the Goods for shipping. Partial shipments of Goods may only be sent by Seller if Buyer has approved such partial shipments in writing and in advance. All shipments must be accompanied by a packing slip which identifies all Goods included with the shipment, Buyer’s PO number, the applicable model name or number, part number, and serial number, and any other information reasonably requested by Buyer. Buyer may defer the delivery of any item up to ninety (90) days by written notice to Seller at any time prior to shipment, and in such event, Seller shall store the same at Seller’s risk and expense. Buyer may require delivery in installments within said ninety (90) day period and may specify the dates of delivery in the quantity of each installment.
6. Title and Risk of Loss. Title to the Goods shall pass from Seller to Buyer upon acceptance (as described in Section 8 below). Seller shall bear all risk of loss, damage or destruction of any Goods, in whole or in part, which occurs prior to delivery. Such loss, damage or destruction shall not release Seller from any obligation hereunder. Risk of loss shall pass to Buyer as follows: If Seller is delivering the Goods to Buyer and is not providing any installation, implementation or other Services in connection with the Goods, then risk of loss shall pass to Buyer upon delivery. If Seller is providing implementation, installation and/or other services in connection with the Goods, then risk of loss shall pass to Buyer upon the successful completion of such services. If any Goods are lost or damaged in transit, Seller shall supply a replacement within the shortest possible time, at the same price and terms as the original PO.
7. Variations. If Seller is unable to deliver all or any part of the Goods in accordance with the PO, Seller agrees to notify Buyer immediately. Buyer may refuse delivery of Goods or return Goods that (a) are shipped more than five (5) days before, or at any time after, the specified delivery date; (b) are shipped with less than or more than the quantities identified in the PO; (c) do not comply with the representations and warranties set forth herein; (d) are shipped in a manner inconsistent with any instructions specified on the PO; (e) for any reason, except payment of applicable duties and tariffs, are not cleared for entry or exit by customs; and (g) otherwise do not comply with the PO. If Buyer accepts Goods delivered more than five (5) business days prior to any specified delivery date, the time period for payment and discounts shall not commence for those Goods until the later of Buyer’s receipt of Seller’s invoice for such Goods or the specified delivery date.
8. Inspection, Acceptance. Notwithstanding payment for the Goods, Buyer retains the right to inspect the Goods within a reasonable time after delivery (which shall be no more than 90 days), and to reject, return and/or hold, at Seller’s expense and risk, any Goods not fully in compliance with the PO and Buyer’s standard test procedures for such Goods. If Buyer rejects any Goods for non-conformance with the PO (a) Buyer will be relieved of its payment obligations for such Goods; (b) Seller will pay Buyer’s expenses for repacking, storing, and reshipping the Goods; (c) Seller will immediately return any consideration previously paid by Buyer for the Goods unless Buyer agrees in writing to the application of such consideration to other or future POs; and (d) Buyer, at its sole option, may require that Seller provide replacement Goods that comply with the PO. Buyer, at its sole option, may elect to accept defective Goods, subject to a mutually agreeable reduction in price or other consideration. Failure of Buyer to inspect the Goods within a reasonable time period after delivery and to notify Seller of Buyer’s rejection thereof shall be deemed accepted, except that such acceptance shall not be binding with respect to latent defects, fraud, and mis-ships (e.g., quantity, etc.).
9. Warranties. Seller represents and warrants (with respect to Goods, including replacement Goods) that (a) the Goods shall at all times be of merchantable quality, of good material and workmanship, and free from defects in design, material, and workmanship; (b) the Goods shall conform in all respects to their respective documentation and specifications; (c) Seller has full authority and sufficient right, title, and interest in and to the Goods to grant the rights granted to Buyer hereunder; (d) all Goods will be new and Buyer will obtain title to all Goods free and clear of all liens, security interests, and other encumbrances; and (e) Seller shall comply with all laws, including without limitation import and export laws, in connection with its provision of Goods hereunder.
10. Indemnity. Seller will indemnify, defend and hold harmless Buyer and its parent, subsidiaries and affiliates and their respective directors, employees and agents from and against any and all damages, liabilities, penalties, fines, losses, costs and expenses including reasonable attorneys’ fees arising from or relating to any claim or allegation that (a) the Goods infringe any patent, copyright, trademark or other proprietary right, or misappropriate any trade secret, of any third party; (b) any acts or omissions by Seller or its employees, agents, or any defects or errors in the Goods that result in any personal injury, death, or damage to any tangible or intangible property, or loss of use thereof. Seller shall at its own expense defend all such claims, suits or actions against Buyer, Buyer’s agents and customers, provided Seller is notified of such claims suits or actions; provided that Buyer’s failure to notify Seller shall not affect Seller’s obligations hereunder except to the extent that Buyer’s failure to notify prejudices Seller. Seller shall have the right to defend against any such claim with counsel of its own choosing and to settle such claim as Seller deems appropriate, provided that Seller will not enter into any settlement involving Buyer without Buyer’s prior written consent. Buyer agrees to reasonably cooperate with Seller in the defense and settlement of any claim subject to indemnification, at Seller’s expense.
11. Cancellation. Buyer may cancel, in whole or in part, any PO (a) upon written notice to Seller at least thirty (30) days prior to the specified delivery date, which notice specifically references the PO, at no charge to Buyer; and/or (b) at any time within thirty (30) days prior to the specified delivery date so long as Buyer pays to Seller the Seller’s direct costs reasonably incurred, and documented, prior to receipt of the notice, with appropriate allowance for mitigation (e.g., sale to others) and/or salvage. Any Goods delivered to Buyer pursuant to such canceled PO will be returned to Seller at Seller’s risk and expense.
12. Force Majeure. If the performance of any obligations hereunder by either party is prevented or delayed by acts of God, acts of government, strike, civil or military authority, terrorism, flood, fire, epidemic, natural event, war, or any other cause not within the reasonable control of either party (a “Force Majeure Event”), the party so affected shall immediately notify the other party, and upon receipt of such notice shall be excused from further performance during the continuance of any such event. Notwithstanding the foregoing, the party not affected by a Force Majeure Event may terminate this Agreement immediately upon written notice if the Force Majeure Event continues for more than thirty (30) consecutive days or an aggregate of sixty (60) days whether consecutive or not.
13. Notice. Notice to be given to either party shall be in writing and shall be effective upon personal delivery or, if mailed, three (3) days after sending by registered or certified mail, postage prepaid, return receipt requested.
14. Miscellaneous. The invalidity in whole or in part of any provision hereof shall not affect the validity of the remainder of such provision or any other provision. The validity, construction and interpretation of any PO and/or the Terms shall be governed by the laws of The State of Israel, and the exclusive venue for all disputes arising out of a PO and/or the Terms shall be the courts of Israel located in Tel-Aviv, Israel unless otherwise mutually agreed by the parties. A PO and its Terms shall not be assignable by either party without the prior written consent of the other party. No failure or delay on the part of either hereto in exercising any right or remedy under a PO and/or the Terms shall operate as a waiver thereof; nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or of any other right or remedy. No provision of the Terms may be waived except in writing by the party granting such waiver. In the event Seller breaches the Terms, Seller shall pay to Buyer the amount of all damages sustained by Buyer as a result of Seller’s breach, as well as all reasonable costs and expenses incurred in connection with the enforcement of Buyer’s rights hereunder, including reasonable attorney’s fees and costs. All remedies of Buyer for Seller’s breach of any obligations shall be cumulative and not alternative.