EXCEPT TO THE EXTENT AGREED IN A SEPARATE WRITTEN AGREEMENT BETWEEN SUPPLIER AND SILVER PEAK, THE TERMS SET FORTH BELOW, TOGETHER WITH THE PURCHASE ORDER, ANY RELATED STATEMENT(S) OF WORK, OR ANY OTHER DOCUMENTS SPECIFICALLY INCORPORATING THE TERMS HEREIN CONSTITUTE THE ENTIRE AGREEMENT BETWEEN SILVER PEAK AND SUPPLIER REGARDING THE IDENTIFIED GOODS AND SERVICES, AND SILVER PEAK’S PURCHASE IS CONDITIONED UPON SUPPLIER’S UNQUALIFIED ASSENT TO THE TERMS SET FORTH HEREIN, IN LIEU OF ANY TERMS IN SUPPLIER’S QUOTATION, ACKNOWLEDGMENT, OR ACCEPTANCE. SILVER PEAK WILL NOT BE BOUND BY ANY TERMS OF SUPPLIER’S DOCUMENTS THAT CONFLICT WITH, OR WHICH PURPORT TO ADD TO OR MODIFY THESE TERMS. THIS ORDER CONSTITUTES SILVER PEAK’S OFFER TO SUPPLIER AND IS NOT AN ACCEPTANCE OR CONFIRMATION. THIS ORDER BECOMES A BINDING CONTRACT ON THE TERMS SET FORTH HEREIN WHEN IT IS ACCEPTED BY SUPPLIER BY EITHER SUPPLIER’S WRITTEN ACCEPTANCE, SHIPMENT OF ANY OF THE GOODS, OR PERFORMANCE OF ANY OF THE SERVICES, SUBJECT TO THIS PURCHASE ORDER.
Price and Payment Terms. Supplier’s prices to Silver Peak shall not exceed those identified on this order, and shall not be greater than the price charged to other buyers of similar quantities of similar goods or services. Unless otherwise stated in a writing signed by Silver Peak, all prices include any applicable taxes, shipping or installation charges. Silver Peak will pay Supplier’s invoices in accordance with the terms on the face of this purchase order; or, if no terms are indicated, net 45 days after the later of Silver Peak’s acceptance of the materials and/or services subject to this order or the receipt of Supplier’s invoice.
Shipping and Delivery. Unless otherwise agreed to in writing signed by Silver Peak, all shipments shall be DAP (Incoterms 2010) the place of destination as designated by Silver Peak pursuant to this order. Supplier shall properly package and mark all containers and deliver to Silver Peak all documents that Silver Peak needs to receive possession of the goods. Time is of the essence under this order. Supplier shall promptly notify Silver Peak of any possible delivery delays. Silver Peak reserves the right to terminate this order, in whole or in part, without any liability if Supplier fails to deliver the goods or services as required by this order.
Inspection and Acceptance. Notwithstanding any prior inspection or payments, all items will be subject to final inspection and acceptance by Silver Peak within a reasonable time after delivery. Silver Peak may reject items or services that do not conform to the requirements of this order, and may, at its option: (i) require Supplier to repair or replace such items or re-perform such services at no cost to Silver Peak, (ii) return such items to Supplier at Supplier's expense and risk and recover from Supplier the order price thereof, or (iii) correct such items or service(s) and charge Supplier the cost of correction.
Changes. Silver Peak reserves the right to change the delivery dates, destination, or specifications provided for in this order. Supplier shall promptly notify Silver Peak if such changes will result in changes in Supplier’s cost or time of performance.
Warranty. Supplier warrants that all goods will be free from defects in materials, workmanship and design, and conform to all applicable specifications, samples, and descriptions. Supplier also warrants that any services subject to this order will be performed in a good and workmanlike manner consistent with applicable industry standards. Supplier further agrees to comply with all applicable laws and regulations relating to the manufacture, sale and export of the goods or provision of the services. The foregoing warranties are in addition to all other express or implied warranties, and survive any delivery, inspection, acceptance, or payment by Silver Peak. In the event of any breach of warranty, Supplier shall, at Silver Peak’s option, promptly replace or repair non-conforming goods, re-perform services, or refund the purchase price. Supplier will be liable in addition for any damages, including cost of cover, caused by Supplier’s breach.
Termination of Order. Silver Peak may terminate this order in whole or in part with or without cause prior to delivery. If Silver Peak terminates this order for cause, Silver Peak shall have no liability beyond payment of any balance owing for goods and/or services delivered to and accepted by Silver Peak prior to notice of termination. If Silver Peak terminates this order for its convenience it shall have no liability beyond payment of any balance owing for goods and/or services delivered to and accepted by Silver Peak prior to notice of termination and for work in progress that is requested for delivery and accepted by Silver Peak.
Confidential Information. “Silver Peak Confidential Information” means any information that under the relevant circumstances a reasonable person should know as being confidential. Supplier agrees to use Silver Peak Confidential Information solely for the purpose of performing its obligations hereunder. Supplier will protect any Silver Peak Confidential Information by using the same degree of care, but no less than a reasonable degree of care, as Supplier uses to protect its own confidential information. All rights to Silver Peak Confidential Information are reserved by Silver Peak, and Supplier will not disclose any Silver Peak Confidential Information to anyone unless such disclosure has been authorized by Silver Peak. Upon Silver Peak’s request, all Silver Peak Confidential Information, in whatever form, shall be returned to Silver Peak or certified destroyed by Supplier at Silver Peak's election. Silver Peak shall be entitled to injunctive relief for any actual or threatened violation of this section.
Insurance. Supplier shall, at its own expense, obtain and maintain, and carry in full force and effect insurance of a type and in amounts which a prudent entity engaged in Supplier’s business would obtain and maintain from financially sound and reputable insurers. Supplier shall provide Silver Peak with a certificate of insurance evidencing the insurance coverage specified in this purchase order upon request. The certificate of insurance shall name Silver Peak as an additional insured.
Indemnity. At Silver Peak’s option, Supplier will defend at its own expense any claim, suit, or proceeding against Silver Peak to the extent based upon (i) Supplier’s breach of this Agreement, or (ii) a claim that goods or services provided by Supplier infringe, misappropriate or contribute to infringement of any patent, copyright, trademark or trade secret of any third party. Supplier will pay all damages, costs and expenses arising from such claims or awarded to such third party. In addition, if as a result of such suit an injunction is issued against Silver Peak that limits the use or sale of any goods or services purchased hereunder, Supplier at Silver Peak’s request shall supply Silver Peak with non-infringing replacement items conforming to Silver Peak’s requirements.
Limitation of Silver Peak’s Liability. IN NO EVENT WILL SILVER PEAK BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT AND/OR CONSEQUENTIAL DAMAGES INCLUDING LOST PROFITS, ARISING OUT OF OR RELATING TO THIS ORDER OR ITS TERMINATION, WHETHER OR NOT IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. Silver Peak’s liability, regardless of the form of action, may not exceed the purchase price stated on this order.
Silver Peak Property. All equipment, tooling, plans or other objects and information obtained by Supplier from Silver Peak shall remain the property of Silver Peak and shall be returned to Silver Peak upon request. Supplier shall not disclose or use for any purposes other than that contemplated by this order any Silver Peak equipment, tooling, processes, techniques, designs, know-how, or other trade secret or confidential information.
Work Product. Supplier agrees to promptly disclose in writing and provide to Silver Peak all inventions, products, designs, documentation, specifications, computer programs, CAD files, parts lists, bills-of-materials and other materials or innovations of any kind created by or on behalf of Supplier in the course of performing services under this purchase order (“Work Product”). Supplier hereby assigns and agrees to assign to Silver Peak all right, title and interest in and the Work Product, including all intellectual property rights therein. Supplier will take such further acts reasonably requested by Silver Peak to enable Silver Peak to maintain, perfect and enforce its rights in the Work Product.
Applicable Law. This Agreement and all claims relating to or arising out of this Agreement, or the breach thereof, whether arising in contract, tort or otherwise shall be governed by and construed in accordance with California law, without regard to its conflicts of law principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply. Any action arising out of or relating to this order will be brought in Santa Clara County, California or the U.S. District Court for the Northern District of California, as applicable, and Supplier hereby agrees and submits to the personal jurisdiction and venue thereof.
Miscellaneous. Any modifications of this purchase order must be in writing and signed by both parties. The waiver by Silver Peak of any default will not waive subsequent defaults by Supplier. Supplier shall not assign or delegate any of its rights or duties under this agreement without Silver Peak’s written consent. Silver Peak may assign this order upon written notice.