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The following Terms and Conditions (the “Terms”) together with the attached Purchase Order (collectively, this “Agreement”) set forth the terms and conditions on which Lynn Electronics LLC has agreed to purchase, and Supplier has agreed to supply certain products and services. All capitalized but undefined terms in these Terms will have the meanings ascribed to them in the Purchase Order. Supplier’s acceptance or acknowledgement of the Purchase Order or commencement of performance thereunder, constitutes Supplier’s acceptance of this Agreement.
1. Products; Services; Deliverables
For purposes of this
Agreement, the following terms shall have the following definitions: (i) ”Products”
means any products, software, equipment and/or hardware which were created or
developed prior to or independent of Services performed hereunder and which shall be
sold or licensed by Supplier to Lynn Electronics LLC as described in the Purchase
Order; (ii) “Services” means the services, functions and responsibilities performed by
Supplier for Lynn Electronics LLC as described in the Purchase Order; and (iii)
“Deliverable” means a milestone requirement or work product to be created or
developed by Supplier for Lynn Electronics LLC as described in the Purchase Order or
as a result of the Services performed hereunder as described in the Purchase Order.
2. Payment Terms; Changes
All fees include all charges for packing,
hauling, storage, transportation to point of delivery, and taxes, including, but not
limited to, VAT, withholding, local taxes and other governmental levies or charges.
Lynn Electronics LLC will not be obligated to pay Supplier any amounts for the
Products, Deliverables, and Services, or reimburse Supplier for any expenses, other
than those expressly described in the Purchase Order. This Agreement may not be
modified or amended except in writing signed by the parties. Without limiting the
foregoing, Lynn Electronics LLC may, at any time, request changes within the general
scope of the Purchase Order. If any such change causes an increase or decrease in the
cost of or the time required for performance of the Purchase Order, an equitable
adjustment will be made in writing to the Purchase Order price or delivery schedule or
both. All invoices issued pursuant to the Purchase Order will reference the Purchase
Order number provided by Lynn Electronics LLC Supplier represents and warrants that
the rates and prices charged for each of the Products, Deliverables and Services under
this Agreement will be at least as low as the rates and prices charged by Supplier to
buyers of similar value, volume and geographic location as Lynn Electronics LLC
under substantially similar conditions.
3. Delivery
Time is of the essence with respect to the delivery of all Products,
Services, and Deliverables. Shipment and delivery must be completed within the
delivery schedule specified on the Purchase Order. Lynn Electronics LLC, without
limiting any of its rights or remedies in law or equity, reserves the right to cancel the
Purchase Order without liability and to charge Supplier with any loss incurred as a
result of Supplier’s failure to make the delivery within the delivery schedule specified.
Except as otherwise expressly set forth in the Purchase Order, all Products and
Deliverables will be delivered DDP Lynn Electronics LLC 1 site (ICC Incoterms 2010)
to the address specified in the Purchase Order during Lynn Electronics LLC’s normal
business hours or as otherwise instructed by Lynn Electronics LLC and title to the
Products and Deliverables shall pass to Lynn Electronics LLC at the same time as the
risk passes to Lynn Electronics LLC on the said DDP term. Supplier must provide
proper and adequate packaging in accordance with best commercial practice, to ensure
that the Products and Deliverables being shipped to Lynn Electronics LLC will be free
of damage. Packaging must be adequate to allow for rough handling during transit,
exposure to extreme temperatures, salt and precipitation during transit and open
storage, with consideration for the type of Products and Deliverables and transportation
mode. Lynn Electronics LLC reserves the right to reject any shipment that is deemed
not to have been packaged adequately.
4. Inspection; Acceptance
Within 30 days of Lynn Electronics LLC’s
receipt of the Products or Deliverables Lynn Electronics LLC may reject any or all of
the Products and Deliverables that do not conform to Lynn Electronics LLC’s
requirements. At Lynn Electronics LLC’s option, Lynn Electronics LLC may, at
Supplier’s risk and expense, (i) return the non-conforming Products or Deliverables to
Supplier for a refund or credit; (ii) require Supplier to replace the non-conforming
Products or Deliverables; (iii) require Supplier to repair the non-conforming Products
or Deliverables so that they meet the requirements; or (iv) accept the non-conforming
Products or Deliverables conditioned on Supplier providing a refund or credit in an
amount Lynn Electronics LLC reasonably determines to represent the diminished value
of the non-conforming Products or Deliverables. Lynn Electronics LLC’s payment to
Supplier for Products or Deliverables prior to Lynn Electronics LLC’s timely rejection
of such Products or Deliverables as non-conforming will not be deemed as acceptance by Lynn Electronics LLC.
5. Warranties; Disclaimers
Supplier represents, warrants and
covenants to Lynn Electronics LLC that: (i) the Services will be performed by qualified
personnel in a timely, professional, and workmanlike manner, consistent with the
prevailing industry standards; (ii) each Product and Deliverable will operate and
conform to the performance capabilities, functions, specifications, and other relevant
descriptions and standards set forth in the Purchase Order, and in the user manuals,
technical reference manuals, and other similar documentation provided by Supplier
related to any such Products and Deliverables for a period of twenty four (24) months
following Lynn Electronics LLC’s date of receipt of the applicable Product or
Deliverables (“Warranty Period”) and Supplier will, at its sole cost and expense, repair
or replace any defective or non-conforming Products or Deliverables during the
Warranty Period; (iii) the Products, Services and Deliverables, and TCS’s receipt or
use thereof, do not and will not infringe, misappropriate, or otherwise violate any
patent, copyright, trademark, service mark, trade secret or other intellectual property or
proprietary right of any third party; and (iv) Supplier has complied and will comply
with all laws and regulations applicable to Supplier, and will obtain and maintain all
permits and licenses required of Supplier in connection with its obligations under the
Purchase Order.
6. Confidentiality
The term “Confidential Information” for the purposes
of this Agreement shall mean all confidential and proprietary information and trade
secrets (whether or not in writing and whether or not patentable or copyrightable),
owned or possessed by either party (the “Disclosing Party”) and disclosed by such party
to the other party (the “Receiving Party”), including without limitation any data
processes, computer or software products or programs, data, analytical methods and
procedures, hardware design, technology, manufacturing information and procedures;
provided, that Confidential Information shall not include information supplied to the
Receiving Party that (i) is or becomes available to the public other than as a result of
disclosure by the Receiving Party in violation of this Agreement; (ii) was known to the
Receiving Party prior to disclosure pursuant to this Agreement and was not otherwise
restricted by contract or law; (iii) becomes available to the Receiving Party on a nonconfidential
basis from a third party not restricted by contract or law regarding such
information; (iv) is disclosed with the prior written consent of the Disclosing Party. If
the Receiving Party is directed to disclose Confidential Information pursuant to a
judicial order or decree, it shall first use reasonable efforts to provide the Disclosing
Party with advance notice to permit the Disclosing Party to seek a protective order and
otherwise restrict the disclosure of Confidential Information. Receiving Party will take
commercially reasonable means to secure the Confidential Information of Disclosing
Party, which will include procedures at least as stringent as those Receiving Party uses
to protect its own Confidential Information but no less than reasonable procedures.
Receiving Party will not use or disclose Disclosing Party’s Confidential Information,
except as necessary to perform its obligations under this Agreement or as otherwise
agreed in writing. At any time upon reasonable written request, Receiving Party will
promptly return to disclosing party all Confidential Information it has in its possession.
The parties expressly acknowledge that damages alone will be an inadequate remedy
for any breach or violation of the provisions of this Section and in view of the
difficulties of placing a monetary value on any such breach, the Disclosing Party will
be entitled to a preliminary and final injunction to prevent any breach or further breach
of this Section. This remedy is separate and apart from any other remedy the Disclosing
Party may have at law or in equity. The party who has breached this Section will not
raise the defense of an adequate remedy at law.
7. Proprietary Rights
Unless otherwise stated in this Agreement, all rights,
title and interest in and to the Deliverables shall vest exclusively in Lynn Electronics
LLC. To the extent that Supplier is creating or developing all or any of the Deliverables,
all rights, including all intellectual property rights, in all copyrightable works of original
authorship (including but not limited to computer programs, technical specifications,
manuals, and business plans), ideas, inventions (whether patentable or not), know-how,
processes, compilations of information, patented property, trademarks, service marks,
trade secrets and other intellectual property (collectively, “Proprietary Materials”)
relating to the Deliverables will belong to Lynn Electronics LLC. Supplier agrees that all Deliverables and Proprietary Materials created in connection with this Agreement are
“works made for hire” as that term is used in connection with the U.S. Copyright Act.
To the extent that, by operation of law, Supplier owns any intellectual property rights in
such Deliverables or Proprietary Materials, Supplier hereby irrevocably assigns and
transfers to Lynn Electronics LLC all rights, title and interest in such Deliverables or
Proprietary Materials. To the extent that, by operation of law, any Supplier personnel
owns any intellectual property rights in such Deliverables or Proprietary Materials,
Supplier shall obtain all such rights and, immediately upon obtaining them, hereby
irrevocably assigns and transfers to Lynn Electronics LLC all rights, title and interest in
such Deliverables or Proprietary Materials. Unless as otherwise stated in this
Agreement, Supplier acknowledges and agrees it will not use the Deliverables in
connection with providing services or products to parties other than Lynn Electronics
LLC, and will not disclose any details concerning the Deliverables to third parties,
without Lynn Electronics LLC’s express written consent.
8. Indemnification
Supplier agrees that, at its expense, it shall indemnify,
defend, and hold Lynn Electronics LLC and its affiliates and their respective officers,
directors, employees, agents, successors and assigns, harmless from all costs, expenses,
damages, liabilities, losses and judgments, including attorneys’ fees and legal expenses
(collectively, “Losses”), and threatened Losses arising from, in connection with, or based
on any of the following; (a) Supplier’s breach of its representations, warranties and/or
obligations under this Agreement, (b) death or bodily or personal injury caused by the
negligence, gross negligence, or willful misconduct of Supplier, (c) damage, loss or
destruction of any real or personal property caused by the negligence, gross negligence,
or willful misconduct of Supplier, and (d) any claim or action for actual or alleged
infringement of any patent, copyright, trade secret or other intellectual property right
based upon Lynn Electronics LLC’s or its customers’ use of any Products, Deliverables,
or any component thereof. If a Product or the Deliverables become subject to a claim
of infringement, Supplier may, in its sole discretion, but without limiting Lynn
Electronics LLC’s other rights or remedies under this Agreement: (a) procure for Lynn
Electronics LLC the right to continue using the infringing Product, Deliverable or
component; (b) provide a substitute, non-infringing Product, Deliverable, or component
(meeting all requirements and specifications of the infringing Product, Deliverable or
component) at no cost to Lynn Electronics LLC.
9. Limitation of Liability
EXCEPT WITH RESPECT TO LIABILITY
ARISING OUT OF A BREACH OF SUPPLIER’S CONFIDENTIALITY
OBLIGATIONS SET FORTH IN THIS AGREEMENT, ITS INDEMNIFICATION
OBLIGATIONS SET FORTH IN THIS AGREEMENT, OR FOR LIABILITY
DERIVING FROM SUPPLIER’S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT, TO WHICH THE FOLLOWING LIMITATIONS DO NOT APPLY,
IN NO EVENT SHALL EITHER PARTY BE LIABLE ONE TO THE OTHER FOR
ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
DAMAGES IN CONNECTION WITH THIS AGREEMENT.
10. Termination
Lynn Electronics LLC may, at its option and without cause,
in addition to its other termination rights, terminate (without penalty or termination fee)
this Agreement or any Purchase Order upon written notice to Supplier of the effective
date of such termination. Upon the effective date of termination under this Section, Lynn
Electronics LLC shall remain responsible for paying Supplier the outstanding fees for
Products, Deliverables or Services rendered and accepted by Lynn Electronics LLC and
Supplier shall immediately refund all monies paid in advance by Lynn Electronics LLC
for Products, Deliverables, or Services cancelled or rejected. Upon the termination of
this Agreement, Supplier agrees to return to Lynn Electronics LLC or destroy, as directed
by Lynn Electronics LLC, all molds used in the production of any Deliverables and
certify its compliance with the terms of this Section.
11. Record Retention; Audit
Until the later of (a) all pending matters
relating to the Purchase Order (e.g., disputes) are closed, or (b) four (4) years after the
termination or expiration of the Purchase Order (as such period may be extended due to
adjustments in regulatory requirements or Lynn Electronics LLC’s records retention
policy), Supplier will maintain, and, upon Lynn Electronics LLC’s request, provide
access to all of Supplier’s records and documentation related to the Purchase Order to
Lynn Electronics LLC (“Records”). Supplier will maintain a complete audit trail of all
transactions resulting from the Purchase Order. During the term of the Purchase Order
and for a period of four (4) years following the expiration or termination of such Purchase
Order, Supplier will provide to Lynn Electronics LLC and its auditors, inspectors,
regulators, and other representatives of Lynn Electronics LLC access at all reasonable
times to Supplier’s facilities, personnel, data and Records for the purpose of performing
audits and inspections of Lynn Electronics LLC and its business, and to examine
Supplier’s performance of its obligations under the Purchase Order, including: (i) to
permit evaluation and verification of any invoices, payments, or claims submitted by
Supplier; (ii) to secure tax, expense, depreciation, and similar information; (iii) to
evaluate Lynn Electronics LLC’s compliance with the terms of this Agreement; and (iv)
to examine any matters necessary to enable Lynn Electronics LLC to meet regulatory
requirements.
12. Publicity
Neither party will use the other party’s name, trademarks or service
marks or refer to the other party directly or indirectly in any media release, public
announcement or public disclosure relating to this Agreement or its subject matter to the
extent the materials in such media release, announcement or disclosure have not
previously been made publicly available, without the other party’s prior written consent.
13. Notice
All notices, requests, demands and other communications that are
required or permitted to be given under this Agreement shall be in writing and shall be
deemed to have been duly given (i) upon receipt if delivered in person, or (ii) within
three (3) business days after mailing if mailed, first class certified, registered mail, return
receipt requested and postage prepaid, or (iii) the following business day if sent by
recognized courier, with proof of delivery requested and charges prepaid to the addresses
set forth in the Purchase Order, or to such other address as a party may specify by written
notice to the other party.
14. Dispute Resolution
All disputes arising out of or in connection with this
Agreement shall be finally settled under the Rules of Arbitration of the International
Chamber of Commerce (the “Rules”) by one or more arbitrators appointed in accordance
with the said Rules. The seat of the arbitration shall be New York, New York, United
States of America. The language of the arbitration shall be English.
The arbitral tribunal shall have the exclusive power to rule on its own jurisdiction, including any objections with respect to the existence, validity, or effectiveness of the arbitration agreement. The arbitral tribunal may make such a ruling in a preliminary decision on jurisdiction or in an award on the merits, as it considers appropriate.
The arbitral tribunal may include in its award an allocation to any party of such costs and expenses, including lawyers’ fees and costs and expenses of management, in-house counsel, experts, and witnesses, as the arbitral tribunal shall deem reasonable.
The arbitral tribunal shall have the exclusive power to rule on its own jurisdiction, including any objections with respect to the existence, validity, or effectiveness of the arbitration agreement. The arbitral tribunal may make such a ruling in a preliminary decision on jurisdiction or in an award on the merits, as it considers appropriate.
The arbitral tribunal may include in its award an allocation to any party of such costs and expenses, including lawyers’ fees and costs and expenses of management, in-house counsel, experts, and witnesses, as the arbitral tribunal shall deem reasonable.
15. Governing Law
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to conflict of law
principles. If injunctive relief or a restraining order is sought by either party, the parties
irrevocably consent to the jurisdiction and venue of the appropriate courts in New York,
New York.
16. Waiver; Serverability
No waiver of any breach of any provision of this
Agreement by either party or the failure of either party to insist on the exact performance
of any provision of this Agreement shall constitute a waiver of any prior, concurrent or
subsequent breach of performance of the same or any other provisions hereof, and no
waiver shall be effective unless made in writing. The parties desire and intend that all of
the provisions of this Agreement be enforceable to the fullest extent permitted by law. If
any of the provisions of this Agreement shall be deemed to be or become invalid or contrary
to public policy or unenforceable under applicable law, the provision shall be deemed
removed from this Agreement and neither party shall be bound by the provision. Such
removal, however, shall not invalidate or render unenforceable the remaining provisions
of this Agreement. Instead, this entire Agreement shall be construed as though it never
contained the particular invalid or unenforceable provision or provisions, and the rights
and obligations of the parties shall be construed and enforced accordingly.
Miscellaneous
The relationship of Supplier to Lynn Electronics LLC will be that
of an independent contractor. This Agreement is being entered into among competent
parties represented by counsel or having an opportunity to be represented by counsel.
Therefore, the language in this Agreement shall not be construed against any particular
party as the drafter of such language. As used in this Agreement, “shall” and “will” mean
“must” and have equal force and effect and express an obligation. The headings contained
in this Agreement are for ease of reference only, and shall not affect the meaning or
interpretation of this Agreement. This Agreement (including the Purchase Order and any
documents delivered by Lynn Electronics LLC pursuant to this Agreement) constitutes the
entire agreement of the parties, and supersedes all prior discussions, negotiations,
agreements and understandings between the parties with respect to the subject matter of
this Agreement. The remedies provided for in this Agreement are in all cases cumulative
and not exclusive. In the event of a breach of this Agreement, the non-breaching party
shall be entitled to all rights and remedies provided by this Agreement and by applicable
law. Delivery of an executed copy of this Agreement by any party by electronic
transmission (including facsimile, email, text, or photograph) will be as effective as
delivery of a manually executed copy of this Agreement by such party and shall be deemed
an original.