Barefoot Networks, Inc. Standard Terms And Conditions Of Purchase
These standard terms and conditions of purchase, together with the relevant purchase order and any attachments and exhibits, specifications, statement of work and/or other terms included thereto or incorporated by reference (collectively the "Purchase Order" or "PO") issued by the Barefoot entity identified in the Purchase Order, including any applicable subsidiaries and affiliates ("Barefoot") constitute the entire and exclusive agreement between Barefoot and the supplier (the "Supplier") identified in the Purchase Order.
1. Formation of Agreement
When Supplier accepts Barefoot’s offer, either by electronic acceptance, acknowledgement of this Purchase Order, delivery of any Goods and/or commencement of performance of any Services, a binding contract shall be formed. Barefoot does not agree to any proposed amendment, alteration, or addition by Supplier. The Agreement can be varied only in writing signed by Barefoot. Any other statement or writing of Supplier shall not alter, add to, or otherwise affect the Agreement. The Purchase Order does not constitute a firm offer within the meaning of Section 2205 of the California Commercial Code, and may be revoked at any time prior to acceptance. Notwithstanding the foregoing, if a master agreement covering procurement of the Good or Services described in the Purchase Order exists between Barefoot and Supplier, the terms of such master agreement shall prevail over any inconsistent terms herein.
Time is of the essence in Supplier's performance of its obligations set forth in the Purchase Order and all dates referred to in the Purchase Order shall be firm. If goods are not delivered by the date specified on the Purchase Order (the “Delivery Date”), Barefoot will be entitled, in addition to its other rights and remedies, to terminate, without liability, this Purchase Order as to items not yet shipped, by written notice effective upon receipt by Supplier. In this instance, Barefoot may purchase substitute goods elsewhere and charge Supplier for any loss incurred. If it appears that Supplier will not meet the Delivery Date, Supplier will (i) immediately notify Barefoot and (ii) ship by air freight or other expedited routing, at Supplier's expense, if and in the manner requested by Barefoot. If only a portion of the goods are available for shipment to meet the Delivery Date, Supplier will notify Barefoot and ship the available goods unless otherwise directed by Barefoot. Barefoot may return any unauthorized under-shipment or any over-shipment at Supplier’s risk and expense. Barefoot's acceptance of Supplier's notice will not constitute Barefoot's waiver of Supplier's obligations.
All goods shall be delivered Delivery Duty Paid ("DDP", Incoterms 2010) and risk and title to the goods (free and clear of any encumbrances) shall pass to Barefoot on delivery, unless expressly otherwise agreed in writing by Barefoot. Supplier shall make no deliveries before the agreed delivery date(s) and Barefoot shall not be liable for any costs caused by or related to production, installation, assembly, commissioning or any other work related to such goods prior to delivery, except as explicitly agreed to by Barefoot.
3. Packaging and Shipment
Supplier shall pack, mark and ship the goods in accordance with sound commercial practices and Barefoot’s specifications in such manner as to prevent damage during transport and to facilitate efficient unloading, handling and storage, and all goods shall be clearly marked as destined for Barefoot. Supplier will mark all containers with necessary lifting, handling, and shipping information and with purchase order numbers, date of shipment, and the names of the consignee and consignor. An itemized packing list must accompany each shipment. Unless otherwise specified, when the price of this Purchase Order is based on the weight of the ordered goods, such price is to cover only the net weight of material ordered, and no charges will be allowed for packing, handling, transportation, storage or other packing requirements. Notwithstanding the provisions of the applicable Incoterms, Supplier shall be responsible for any loss or damage due to its failure to properly preserve, package, handle (before delivery as per the applicable Incoterm) or pack the goods; Barefoot shall not be required to assert any claims for such loss or damage against the common carrier involved.
4. Inspection and Acceptance
Notwithstanding any prior inspection or payments, all goods will be subject to final inspection and acceptance at Barefoot's premises within a reasonable time after delivery. In case any item is defective in material or workmanship, or otherwise not in conformity with the requirements of this Purchase Order, Barefoot will have the right to reject it, to require its correction or to accept it with an adjustment in price. Any item that has been rejected or required to be corrected must be replaced or corrected by and at the expense of Supplier promptly after notice. If, as a result of sampling inspection, any portion of a lot or shipment of like or similar items is found not to conform to the Agreement, Barefoot may reject and return the entire shipment or lot without further inspection or, at its option, complete inspection of all items in the shipment or lot, reject and return any or all nonconforming units (or accept them at a reduced price) and charge Supplier the cost of such inspection. Goods not accepted but already paid by Barefoot shall be reimbursed by Supplier to Barefoot and Barefoot shall have no payment obligation for any good not accepted by Barefoot. If, after being requested by Barefoot, Supplier fails to promptly replace or correct any defective good, then Barefoot (i) may, by contract or otherwise, replace or correct such good and charge to Supplier the cost occasioned thereby, (ii) may, without further notice, cancel this Purchase Order for default, or (iii) may require an appropriate reduction in price.
5. Change Order
The Barefoot may at any time, by a written order, suspend performance hereunder, increase or decrease the ordered quantities, change the due date or make changes in any one or more of the following: (i) applicable drawings, designs or specifications; (ii) method of shipment or packing; and/or (iii) place of delivery. If the change causes an increase in the cost or the time required by Supplier for performance of this Purchase Order and Supplier so notifies Barefoot, then an equitable adjustment will be made in the order price or delivery schedule or both, and the Purchase Order will be modified accordingly in writing. No claim by Supplier for such an adjustment will be valid unless asserted within twenty (20) days from the date of receipt by Supplier of the notification of change; provided, however, that such period may be extended upon the written approval of Barefoot. Nothing in this section is intended to excuse Supplier from proceeding with this Purchase Order as changed or amended.
6. Performance of Services
Where the Purchase Order provides for installation, commissioning or any other work or services ("Services") to be carried out by Supplier such work shall be executed pursuant to the applicable Purchase Order and any accompanying statement of work or specification and in any event, with good workmanship and using proper materials. As a minimum requirement, such Services shall comply with all applicable quality and certification standards. Supplier shall be fully liable for the acts and omissions of any and all third parties with which it has contracted in connection with the Services. Only written confirmation by Barefoot shall constitute acceptance of the Services performed. If Barefoot does not accept the Service and/or resulting work product, Barefoot shall promptly notify Supplier of such rejection, and Supplier will, at its own expense, promptly carry out the necessary corrections, additions and modifications reasonably requested by Barefoot in writing within of such notification.
7. Prices and Taxes
The acceptance of this Purchase Order constitutes a warranty that the prices to be charged for goods or services ordered do not exceed the lowest price charged to any other customer for similar quantities and delivery requirements. Unless otherwise specified, the prices set forth in this Purchase Order include all applicable federal, state, and local taxes. All fees and amounts payable by Barefoot to Supplier are exclusive of any value added tax, goods and service tax, sales tax, use tax, consumption tax or any other similar tax only (collectively referred to as “VAT”). If the transactions as described in this Purchase Order are subject to any applicable VAT, Supplier shall provide Barefoot with an invoice which specifically states this VAT and which also complies with the applicable tax regulations (“valid invoice”). Provided Supplier has stated VAT (as identified above) on a valid invoice Barefoot will pay to Supplier the VAT properly chargeable in respect of that payment. Barefoot reserves the right to withhold payments to Supplier until Supplier has provided Barefoot with a valid invoice. If Supplier has incorrectly determined the amount of VAT chargeable to Barefoot, then the invoice shall be corrected and (i) when Barefoot has overpaid any amount of VAT, Supplier will repay this amount of VAT plus interest to Barefoot; or (ii) when Barefoot has paid less than the correct amount of VAT, Barefoot shall pay the outstanding amount of VAT to Supplier upon receipt of a valid invoice. Barefoot reserves the right to claim compensation for damages in case a VAT deduction is denied or VAT refund is rejected due to Suppliers failure to issue a valid invoice.
In the event that any applicable law requires Barefoot to withhold taxes or similar deductions (including interest, penalties, and additions thereto) imposed on payments made or to be made by Barefoot to Supplier, Barefoot may deduct such taxes from such payments provided that such taxes are paid to the appropriate tax authorities. In such event Barefoot shall furnish Supplier with tax receipts issued by the appropriate tax authorities to enable Supplier to support (if applicable) a claim for credit against income taxes as well as to enable Supplier to document (if necessary) Supplier’s compliance with tax obligations in any jurisdiction outside Supplier’s home country.
Supplier will submit invoices in duplicate showing the following information: Purchase Order number; item number; description of item; size of item; quantity of item; unit prices; each applicable tax; extended totals; and any other information specified elsewhere herein. A Bill of Lading or express receipt must accompany each invoice. Payment of invoice will not constitute acceptance of goods and will be subject to adjustment for errors, shortages, defects in the goods or other failure of Supplier to meet the requirements of this Purchase Order. Barefoot may at any time set off any amount owed by Barefoot to Supplier against any amount owed by Supplier or any of its affiliated companies to Barefoot.
Supplier warrants that all goods delivered (i) will be free from defects in workmanship, material, and manufacture, (ii) will comply with the requirements of this Purchase Order, including any drawings or specifications incorporated herein or samples furnished by Supplier, and (iii) where design is Supplier's responsibility, will be free from defects in design. Supplier further warrants that all goods purchased hereunder will be of merchantable quality and will be fit for the purposes intended by Barefoot. The foregoing warranties constitute conditions to this Purchase Order. They are in addition to all other warranties, whether express or implied, and will survive any delivery, inspection, acceptance or payment by Barefoot. All warranties run to the benefit of Barefoot and its customers.
Barefoot's approval of Supplier's materials or design will not relieve Supplier of any warranties.
If any goods delivered do not meet the warranties specified herein or otherwise applicable, Barefoot may, at its option, (i) require Supplier to correct any defective or nonconforming goods by repair or replacement at no cost to Barefoot, or (ii) return such defective or nonconforming goods to Supplier at Supplier's expense and recover from Supplier the order price thereof, or (iii) correct the defective or nonconforming goods itself and charge Supplier with the cost of such correction.
Supplier warrants and represents to Barefoot that any services to be provided under this Purchase Order will be provided in accordance with sound professional practices and using a standard of skill and care that is no less than that ordinarily exercised by experienced and competent contractors performing services of a similar nature to the services to be provided under this Purchase Order. Further, Supplier warrants that the services will be proper and sufficient for the purposes contemplated by this Purchase Order
10. Changes to Goods
Supplier shall not, without prior written consent of Barefoot, make any changes affecting goods, including process or design changes, changes to manufacturing processes (including geographic location) changes affecting electrical performance, mechanical form or fit, function, environmental compatibility, chemical characteristics, life, reliability or quality of goods or changes that could have significant impact upon Supplier’s quality system.
11. Cancellation and Defaults
Barefoot may, by written notice, cancel this order in whole or in part if, in Barefoot's goodfaith opinion, Supplier (i) has failed to make delivery of the items or to perform the services within the time specified herein, or any extension thereof by written change order or amendment; or (ii) has failed to replace or correct defective items in accordance with the provisions of section 9 above; or (iii) has failed to perform any of the other provisions of this Purchase Order; or (iv) has so failed to make progress under this Purchase Order as to endanger performance in accordance with its terms.
If this Purchase Order is canceled for Supplier's default, Barefoot may procure, upon such terms and in such manner as Barefoot may deem appropriate, goods or services similar or substantially similar to those canceled. Supplier will then be liable to Barefoot for any excess costs occasioned thereby.
If all or a portion of this Purchase Order is canceled for Supplier's default, Barefoot may require Supplier to transfer title and to deliver to Barefoot, in the manner and to the extent directed by Barefoot, (i) all completed items not yet delivered and (ii) any partially completed items and materials that Supplier has produced or acquired for the performance of the terminated portion. Supplier will, upon direction of Barefoot, protect and preserve the property listed in this section that is in the possession of Supplier. Payment for completed items delivered to and accepted by Barefoot under this section will be in an amount (not to exceed the contract price) agreed upon by Supplier and Barefoot; however, Supplier's obligation to carry out Barefoot's direction as to delivery, protection, and preservation of the property will not be contingent upon prior agreement as to such amount.
Nothing in this section 11 is intended to excuse Supplier from proceeding with any uncancelled portion of this Purchase Order.
12. Termination for Convenience
At any time for convenience, Barefoot may terminate work under this Purchase Order, in whole or in part, by written notice.
Upon such termination, Supplier will, to the extent and at the times specified by Barefoot, stop all work under this Purchase Order, place no further orders for materials to complete the work, assign to Barefoot all Supplier's interests under terminated subcontracts and orders, settle all claims thereunder after obtaining Barefoot's approval, protect all property in which Barefoot has or may acquire an interest, and transfer title and make delivety to Barefoot of all articles, materials, work in process, and other things held or acquired by Supplier in connection with the terminated portion of this Purchase Order. Supplier will proceed promptly to comply with Barefoot's instructions respecting each of the foregoing without awaiting settlement or payment of its termination claim.
Within six (6) months after such termination, Supplier may submit to Barefoot its written claim for termination charges, in the form and with the certifications prescribed by Barefoot. Failure to submit the claim within six months will constitute a waiver of all claims and a release of all Barefoot's liability arising out of the termination.
The parties may agree upon the amount to be paid Supplier for such termination. If they fail to agree, Barefoot will pay Supplier the following amounts:
The contract price for all items completed or services rendered in accordance with this Purchase Order and not previously paid for.
The actual costs incurred by Supplier which are properly allocable under recognized commercial accounting practices to the terminated portion of this Purchase Order, plus a fair and reasonable profit on such costs. If it appears that Supplier would have sustained a loss on the order, no profit will be allowed, and an adjustment will be made reducing the amount of the settlement to reflect the indicated rate of loss.
The reasonable costs incurred by Supplier in making settlement hereunder and in protecting property in which Barefoot has or may acquire an interest.
Payments made under this section 12 may not exceed the aggregate price specified in this Purchase Order less payments otherwise made or to be made. Any amounts payable for property lost, damaged, stolen or destroyed prior to delivery to Barefoot will be excluded from amounts otherwise payable to Supplier under this section.
The failure of Barefoot to enforce at any time any of the provisions of this Purchase Order, to exercise any election or option provided herein, or to require at any time the performance by Supplier of any of the provisions herein will not in any way be construed to be a waiver of such provisions.
The remedies stated herein are in addition to all other remedies at law or in equity.
Supplier agrees to indemnify Barefoot, its agents, customers, successors, and assigns against any loss, damage, and liability (including costs and expenses) for actual or alleged infringement of any patent, copyright or trademark arising out of the use or sale of the goods by Barefoot, its agents or customers -- provided, however, that Barefoot must notify Supplier of any suit, claim or demand involving such infringement and permit Supplier to defend against or settle the same. If any injunction is issued as the result of any such infringement, Supplier agrees, at Barefoot's option, to (i) refund to Barefoot the amounts paid to Supplier for the goods covered by the injunction, or (ii) furnish Barefoot with acceptable and non-infringing goods.
Supplier agrees to indemnify Barefoot against any and all liability and expense resulting from any alleged defect in the goods, whether latent or patent, including allegedly improper construction and design, or from the failure of the goods to comply with specifications.
Supplier warrants that there are no liabilities for royalties, mechanics liens or other encumbrances on the goods supplied and agrees to indemnify Barefoot against any such liabilities.
The above indemnifications are in addition to all other rights of indemnification of Barefoot against Supplier.
16. Limitation of Liability
IN NO EVENT SHALL BAREFOOT BE LIABLE TO SUPPLIER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS PURCHASE ORDER, EVEN IF BAREFOOT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event shall Barefoot’s liability to Supplier for any breach of any provision of this Purchase Order exceed the purchase price for goods or services delivered and accepted hereunder.
17. Non-Disclosure of Confidential Matters
Supplier will not quote for sale to others, without Barefoot's written authorization, any goods purchased under Barefoot's specifications or drawings. All specifications, drawings, samples, and other data furnished by Barefoot will be treated by Supplier as confidential information, will remain Barefoot's property, and will be returned to Barefoot on request.
No right or obligation under this Purchase Order (including the right to receive monies due) may be assigned by Supplier without the prior written consent of Barefoot, and any purported assignment without such consent will be void. Barefoot may assign this Purchase Order at any time if such assignment is considered necessary by Barefoot in connection with a sale of Barefoot's assets or a transfer of its obligations.
19. Notice of Delays
Whenever any event delays or threatens to delay the timely performance of this Purchase Order, Supplier will immediately notify Barefoot of such event and furnish all relevant details. Receipt by Barefoot of such notice will not constitute a waiver of the due dates hereunder.
Supplier, as part consideration for this Purchase Order and without further cost to Barefoot, hereby grants to Barefoot (and, to the extent requested by Barefoot, to the government) an irrevocable, non-exclusive, royalty-free license to use, sell, manufacture, and cause to be manufactured products embodying any inventions and discoveries made, conceived or actually reduced to practice in connection with the performance of this Purchase Order.
21. Government Contracts
If this Purchase Order is issued for any purpose that is either directly or indirectly connected with the performance of a prime contract with the government or a subcontract thereunder, the terms that the Federal Acquisition Regulation or other appropriate regulations require to be inserted in contracts or subcontracts will be deemed to apply to this Purchase Order.
22. Conflict Minerals
Supplier will promptly provide information to Barefoot, in the format reasonably requested by Barefoot, to assist Barefoot in meeting its obligations or responding to third-party requests relating conflict minerals, such as gold, tungsten, tin, and tantalum and their derivatives, (“Conflict Minerals”) as such minerals are defined pursuant to Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act and its implementing regulations as amended periodically or other rules of a similar nature (collectively, the “Conflict Minerals Rules”). The foregoing includes but is not limited to providing Barefoot with information relating to Supplier's process for determining the source of any Conflict Minerals supplied to Barefoot or used in Supplier’s products supplied to Barefoot. Supplier will adopt policies and establish systems to procure conflict minerals from sources that have been third-party verified as conflict free.
23. Applicable Law
The validity, interpretation and performance of these terms and conditions and any purchase made hereunder shall be governed by the laws of the state of California, without reference to conflict of law principles. Where not modified by the terms herein, the provisions of California’s enactment of Article 2 of the Uniform Commercial Code shall apply to this transaction. The United Nations Convention on Contracts for the International Sale of Goods (the Vienna Convention) is deemed waived and shall not apply. In the event of any dispute arising hereunder, the parties hereby submit to the jurisdiction of the state and federal courts located in Santa Clara, California.