VIA Motors, Inc. Terms and Conditions
January 30, 2013
The terms and conditions stated in this purchase order constitutes the entire agreement of the parties as to the subject matter herein covered and governs the transaction if this order is filled by Seller, notwithstanding any conflicting term or condition of Seller’s acknowledgment or any other document or communication to the contrary, except when issued to place an order pursuant to a written agreement between the parties. The provisions of this purchase order and any contract or agreement arising from it shall be governed by the laws of the state of New York.
- Definitions. The term “Buyer,” except as otherwise defined herein, means VIA Motors, Inc., a Delaware corporation, acting through its officers, directors or designated agents. The term “Seller” refers to the company or person(s) listed on the face of this purchase order and to whom this offer is extended. The word “articles” means goods, products, materials, equipment, supplies, parts, technical data, intellectual property, drawings, art work, dies, designs, engravings, services, or other items covered by this purchase order. The term “purchase order” shall include change notices and any attachments.
- Acceptance of Purchase Order. This purchase order constitutes Buyer’s offer to Seller and shall become a binding contract upon Seller’s acceptance of its terms and conditions. Acceptance of the terms and conditions of this purchase order will occur by Seller sending an acknowledgment to Buyer confirming the purchase order, by Seller’s commencement of work on the goods, by Seller’s commencement to furnish services, or by Seller’s shipment of such goods or delivery of services, whichever occurs first. Any acceptance of this purchase order is expressly limited to acceptance of the terms contained on its face and back. Any effort by Seller to vary the terms of this purchase order, including any additional or different terms, material or nonmaterial, shall be deemed proposals for alteration and are hereby objected to and rejected by Buyer. If this purchase order is sent in response to an offer by Seller and there are any material differences in terms, the terms of this purchase order constitute a rejection and counteroffer to Seller’s offer.
- Nonconforming Goods and Services. Buyer shall not be deemed to have accepted or be held responsible for any articles delivered to Buyer without a written purchase order or for any articles which, upon delivery, are found to be defective, or for any reason do not conform to Buyer’s qualitative, quantitative, or other specifications. In all the above cases, Buyer shall have the right, at its option, to return all or any part of the articles to Seller, who shall bear any risk of loss and pay all consequential costs incurred in connection with shipment and return of such articles. Seller’s warranties, and service guarantees shall extend to Buyer and users of articles in any location or change of location of Buyer as determined by Buyer.
- Prices. Seller represents that prices quoted to or paid by Buyer shall not exceed current prices charged to any other customer of Seller for items which are the same or substantially similar to articles covered by this purchase order, taking into account the quantity ordered and any other consideration relevant to cost. Buyer shall be entitled at all times to set off or deduct any amount owing at any time from Seller to Buyer against any amount payable at any time to Seller by Buyer.
- Additions, Changes, and Substitutions. Each of the terms and conditions of sale contained in this purchase order is an essential, integral part of Buyer’s offer or counteroffer to purchase. No additions, deletions, substitutions or other changes to this purchase order shall be made except by, or with the express written consent of, an authorized officer or purchasing agent of Buyer located at the address given on the face of this purchase order. Under no circumstances shall Buyer’s receipt of Seller’s goods be deemed to constitute consent to any unauthorized modification of the purchase order. In the event Seller fills the order without obtaining Buyer’s prior written consent to proposed modifications, Seller shall be deemed to have accepted the original terms and conditions contained in the purchase order and the same shall be given precedence over any and all conflicting terms or conditions not expressly approved in writing by Buyer, whether such conflicting terms or conditions are contained in a modification of this purchase order, in Seller’s acknowledgment, or in any other document or communication.
- Correspondence and Acknowledgments. All correspondence and acknowledgments should be directed to Buyer at the address listed on the face of this purchase order or at Buyer’s email address.
- Termination of Purchase Order. In the event of Seller’s failure to timely deliver as specified, Buyer reserves the right to cancel this order, or any part of it, without prejudice to any other rights it may have. Seller also agrees that Buyer may return part or all of any shipment in the event of Seller’s failure to deliver as specified and may charge Seller with any expense sustained by Buyer, including the additional cost of purchasing the articles elsewhere. It is understood that time is of the essence.
- Acceptable Invoices. Buyer shall be under no legal obligation to pay principal or interest to Seller for articles covered by this purchase order until Buyer is in receipt of an acceptable invoice. In order to be acceptable, Seller’s invoice must comply with the following minimum requirements: 1) Invoice from Seller must be received by Buyer’s Accounts Payable Department by email at email@example.com; 2) Seller shall submit only invoices covering this purchase order, or any part of it; and 3) Purchase order number, quantity, description, and unit price must appear on all invoices referring to this order, or any part of it, in the same form and description as contained in it. Invoices not in compliance with minimum requirements may be returned to Seller by Buyer and may not be paid until a conforming invoice is received.
- Payment Terms. Payment terms associated with this purchase order are 2%-10 net 60 from the later of receipt of conforming invoice or acceptance of conforming goods, unless otherwise stated on the face of the purchase order.
- Cash Discounts. It is understood that the cash discount period available to Buyer will date from the date of receipt of the articles at the “Ship To” address listed on the face of the purchase order or the date of receipt of the acceptable invoice, whichever is later, and not from the date of the invoice. Invoices lacking terms will be discounted on a 2%-10 Days, Net 60 Days basis. Payment is deemed to be made for the purpose of earning the discount on the date of mailing Buyer’s check.
- Packing and Shipping. Delivery shall be made and articles shipped as specified without charge for boxing, crating, carting or storage, unless otherwise specified, and articles shall be suitably packed to secure lowest transportation costs, and in accordance with the current National Motor Freight Classification. Articles shall be described on bills of lading in accordance with current rail or motor freight classification, whichever is applicable. Buyer’s purchase order number, quantity, and description must be plainly marked on all packages, bills of lading, shipping orders, and correspondence. Packing lists shall accompany each box or package shipment. Buyer shall not be responsible for any articles not delivered to the Buyer’s “Ship To” address listed on this purchase order or without Buyer’s purchase order number, and may return such articles to Seller at Seller’s expense. Except as consented to by Buyer, Seller shall not ship in advance of schedule and shall ship exact quantities ordered.
- Warranty. Seller warrants that all articles will conform to applicable specifications, drawings, descriptions, and samples, will comply with all government regulations, including without limitation regulations relating to hazardous materials, and will be merchantable, of good workmanship and materials, fit for the particular purpose or purposes for which intended, and free from defect, claim, encumbrance, or lien. Unless manufactured pursuant to detailed design furnished by Buyer, Seller assumes design responsibility and warrants articles to be free from design defect and suitable for the purpose intended by Buyer. If articles delivered or services furnished by Seller do not meet the warranties specified or otherwise applicable, Buyer may, at its option, return at Seller’s expense the defective or nonconforming articles for credit or refund, or require Seller to correct, at no cost to Buyer, any defective or nonconforming articles or services. Time is of the essence. Defective or nonconforming articles shall not be corrected or replaced without Buyer’s consent or express permission. Seller’s warranties, together with its service guaranties, shall extend to Buyer and users of articles in any location or change of location as determined by Buyer and shall not be deemed to be exclusive. Buyer’s inspection, approval, acceptance, use of or payment for all or part of articles shall in no way affect its warranty rights whether or not breach of warranty has become evident at the time.
- Assignment and Subcontract. Neither this order nor any resulting duty or right shall be delegated or assigned by Seller without the prior written consent of Buyer, except that claims for monies due or to become due under this order may be assigned by Seller without such consent provided that Seller notifies Buyer in writing of any and all such assignments made. Seller agrees that it will not subcontract articles or related major components thereof without Buyer’s prior written consent. Any assignment not made in accordance with the terms and conditions of this paragraph is void and will have no effect.
- Indemnity. Seller agrees to indemnify and hold Buyer harmless from any and all claims and liability, including, but not limited to, legal fees and court costs for injuries or death to persons or damage to or destruction of property caused by or resulting from the acts or omissions of Seller, its agents, suppliers or employees in the performance of this order and at Buyer’s option to defend at Seller’s expense all suits or proceedings arising out of the foregoing.
- Patents and Copyrights. In the event any articles sold and delivered shall be the subject of any application for or any patent or a copyright, Seller shall indemnify and save harmless Buyer from any and all loss, costs, or expenses on account of any and all claims, suits, or judgments as a result of the use or sale of such articles in violation of rights under such patent, copyright, or application.
- Exclusive Right of Ownership. Seller agrees that titles to and the right of immediate possession of all technical data, intellectual property, drawings, art work, dies, designs, engravings, plans, or any other materials furnished or paid for by Buyer directly or indirectly shall be and remain with Buyer. Buyer shall retain title at all times to such articles, all of which, including copies, upon request or upon completion of this order, shall be promptly returned to Buyer by Seller.
- Advertising and Endorsements. Seller shall not advertise, disclose, claim, or imply endorsement in any way to any third party nor use any information whatever concerning this purchase order or any attachments. Seller shall not circularize, solicit, or advertise to units or divisions of Buyer.
- Compliance. Buyer may at any time insist upon strict compliance with these terms and conditions, notwithstanding previous custom, practice, or course of dealing to the contrary.
- Shipping and Freight. Unless otherwise specified by Buyer on the face of this purchase order, delivery will be made and title passed DDP point of shipment to location specified by Buyer.