(a) This purchase order is an offer by Ferrari Importing Company d/b/a Gamma Sports, a Michigan corporation (the “Buyer”) for the purchase of the goods specified on the face of this purchase order (the “Goods”) from the party to whom the purchase order is addressed (the “Seller”) in accordance with and subject to these terms and conditions (the “Terms”; together with the terms and conditions on the face of the purchase order, the “Order”). This Order, together with any documents incorporated herein by reference and any sample(s) or model(s) of the Goods provided by or on behalf Seller to Buyer (which shall be deemed to create an express warranty that the Goods conform to such sample(s) or model(s)), constitutes the sole and entire agreement of the parties with respect to the Order, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the Order. The Order expressly limits Seller’s acceptance to the terms of the Order. These Terms prevail over any terms or conditions contained in any other documentation and expressly exclude any of Seller’s general terms and conditions of sale or any other document issued by Seller in connection with this Order.
(b) These Terms apply to any repaired or replacement Goods provided by Seller hereunder.
(c) Buyer is not obligated to any minimum purchase or future purchase obligations under this Order.
2. Acceptance. This Order is not binding on Buyer until Seller accepts the Order in writing. If Seller does not accept the Order in writing within 20 days of Seller’s receipt of the Order, this Order will lapse. Buyer may withdraw the Order at any time before it is accepted by Seller.
3. Delivery Date. Seller shall cause the Goods to be delivered to Delivery Location (defined below) in the quantities and on the date(s) specified in this Order or as otherwise agreed in writing by the parties (the “Delivery Date”). If no Delivery Date is specified, Seller shall deliver the Goods within 30 days of Seller’s receipt of the Order. Timely delivery of the Goods is of the essence. If Seller fails to deliver the Goods in full on the Delivery Date:
(a) Buyer may terminate the Order immediately by providing written notice to Seller;
(b) Seller shall pay to Buyer a late
delivery charge of 0.5% of the total value of the Order for every 7 days that the delivery is delayed; and
(c) Seller shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses directly attributable to Seller’s failure to deliver the Goods on the Delivery Date. 4. Quantity. If Seller delivers more or less than the quantity of Goods ordered, Buyer may reject all or any excess Goods. Any such rejected Goods shall be returned to Seller at Seller’s risk and expense. If Buyer does not reject the Goods and instead accepts the delivery of Goods at the increased or reduced quantity, the Price (defined below) for the Goods shall be adjusted on a pro-rata basis.
5. Delivery Location. All Goods shall be delivered to the address specified in this Order (the “Delivery Location”) during Buyer’s normal business hours or as otherwise instructed by Buyer.
6. Shipping Terms. Delivery shall be made FOB Port of Origin, Incoterms® 2020. Seller shall give written notice of shipment to Buyer when the Goods are delivered to a carrier for transportation. Upon delivery of the Goods to the transportation carrier, Seller shall promptly provide Buyer all shipping documents, including the commercial invoice, packing list, air waybill, bill of lading, and any other documents necessary to release the Goods to Buyer. The Order number must appear on all shipping documents, shipping labels, bills of lading, air waybills, invoices, correspondence and any other documents pertaining to the Order.
7. Title and Risk of Loss. Title passes to Buyer upon delivery of the Goods to the port of origin. Seller bears all risk of loss or damage to the Goods until delivery of the Goods to the port of origin.
8. Packaging. All Goods shall be packed for shipment according to Buyer’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition.
9. Amendment and Modification. No change to this Order is binding upon Buyer unless it is in writing, specifically states that it amends this Order and is signed by an authorized representative of Buyer.
10. Inspection and Rejection of Nonconforming Goods. The Buyer has the right to inspect the Goods on or after the Delivery Date. Buyer, at its sole option, may reject all or any portion of the Goods if it determines the Goods are nonconforming or defective. If Buyer rejects any portion of the Goods, Buyer has the right, effective upon written notice to Seller, to: (a) rescind the Order in its entirety;
(b) accept the nonconforming or defective Goods at a reasonably reduced price; or
(c) reject the Goods and require replacement of the rejected Goods at Seller’s expense. If Buyer requires replacement of the Goods, Seller shall promptly replace the nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective goods and the delivery of replacement Goods. If Seller fails to timely deliver replacement Goods, Buyer may replace them with goods from a third party and charge Seller the cost thereof and terminate this Order for cause pursuant to Section 21. Any inspection or other action by Buyer under this Section 10 shall not reduce or otherwise affect Seller’s obligations under the Order, and Buyer shall have the right to conduct further inspections after Seller has carried out its remedial actions.
11. Price. The price of the Goods is the price stated in the Order, which shall comport with the price list the parties have mutually approved, if any (the “Price”). If no price is included in the Order, subject to Section 12, the Price shall be the price stated in the last purchase order between the parties for goods that are the same or substantially the same as the Goods, and if none, Seller’s published price list in force as of the date of the Order. Unless otherwise specified in the Order, the Price includes all packaging, transportation costs to the port of origin, insurance, customs duties, and fees and applicable taxes, including, but not limited to, all sales, use or excise taxes. Seller shall notify Buyer of any change in Price at least 30 days before the effective date of such price change. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Buyer. Price changes received without proper notice shall be subject to a USD$500 price support charge.
12. Most Favored Customer. Seller represents and warrants that the Price is the lowest price charged by Seller to any of its external buyers for similar Goods. If Seller charges any other buyer a lower price, Seller must apply that price to all Goods under this Order. If Seller fails to meet the lower price, Buyer, at its option, may terminate this Order without liability pursuant to Section 21.
13. Payment Terms. Seller shall issue an invoice to Buyer on or after the completion of delivery in accordance with the Terms. Buyer shall pay all properly invoiced amounts due to Seller within 60 days after Buyer’s receipt of such invoice, except for any amounts disputed by Buyer in good faith. All payments hereunder must be in US dollars. If applicable, the invoice shall set forth the Price in its original, non-US currency together with its US dollar equivalent, calculated using the official rate of exchange of such non-US currency as quoted by the Wall Street Journal, New York edition, for the last business day of the calendar quarter for which the payment is made. In the event of a payment dispute, Buyer shall deliver a written statement to Seller listing all disputed items and providing a description of each disputed item. The parties shall seek to resolve all such disputes expeditiously and in good faith. Seller shall continue performing its obligations under the Order notwithstanding any such dispute.
14. Setoff. Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Buyer to Seller.
15. Warranties. Seller warrants to Buyer that for a period beginning on the Delivery Date and ending 12 months from receipt of the Goods by a consumer who purchased the Goods, all Goods will:
(a) be free from any defects in workmanship, material and design;
(b) conform to applicable specifications, drawings, designs, samples, models and other requirements specified by Buyer; (c) be fit for their intended purpose and operate as intended;
(d) be merchantable;
(e) be free and clear of all liens, security interests or other encumbrances; and
(f) not infringe or misappropriate any third party’s patent or other intellectual property rights. These warranties survive any delivery, inspection, acceptance or payment of or for the Goods by Buyer. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of discovery of the noncompliance of the Goods with the foregoing warranties. If Seller receives notice of noncompliance with this Section 15, Seller shall, at its own cost and expense, promptly replace or repair the defective or nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods to Seller and the delivery of repaired or replacement Goods to Buyer or consumer, as applicable.
16. Work Made for Hire; Assignment; License.
(a) All Goods, products, parts, attachments, formulas, materials, samples, models, drawings, documentation, designs, inventions, specifications, improvements, and prototypes (including any subject matter protected under patent, copyright, proprietary database, trademark, trade secret, rights of publicity, moral rights, artist’s rights or other property rights, including, without limitation, all worldwide rights therein), provided under an Order or created or improved using Buyer’s ideas, data or resources (“Work Product”) shall constitute work made for hire and shall be property of Buyer; provided, however, that Work Product shall not include any pre-existing technology, tools, methodologies or processes (collectively, “Pre-existing Technology”) owned by Seller or any third party. Seller represents that Seller has the full right and authority to use such Pre-existing Technology, including any modifications or enhancements developed thereto, and hereby grants to Buyer, a non-exclusive, transferable, royalty-free, perpetual, irrevocable, worldwide license to fully exploit the Pre-existing Technology as part of the Seller’s Work Product. If: (i) any of the Work Product is not considered work made for hire; or (ii) ownership of all right, title and interest in and to the Work Product does not vest exclusively in Buyer, then, without further consideration, the Seller hereby assigns all Work Product to Buyer immediately upon its creation, automatically and without further consideration or action by any party. The Buyer will have the right to obtain and hold in its or its designee’s name copyrights, patents, design registrations and continuations thereof, proprietary database rights, trademarks, rights of publicity and any other protection available in the Work Product. At the Buyer’s request, at no cost to Seller, Seller agrees to perform any acts to transfer, perfect and defend the Buyer’s or its designee’s ownership of the Work Product.
(b) To the extent any Work Product are unable to be assigned to Buyer as described above in this Section 16: (i) Seller hereby grants, and will grant, to Buyer a perpetual, irrevocable, exclusive, fully paid-up and royalty-free, transferable, sublicensable, worldwide right and license to use, reproduce, distribute, create derivative works of, display, modify, sell, make, import and export, and exploit all or any portion of such Work Product, in any form; and (ii) Seller unconditionally and irrevocably waives all claims and causes of action of any kind against Buyer in connection with Work Product licensed, or to be licensed, in accordance with this Section 16(b).
17. General Indemnification. Seller shall defend, indemnify and hold harmless Buyer and Buyer’s affiliates, successors or assigns and its respective directors, officers, shareholders, employees and customers (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with the products purchased from Seller or Seller’s negligence, willful misconduct or breach of the Terms. Seller shall not enter into any settlement without Buyer’s or Indemnitee’s prior written consent.
18. Intellectual Property Indemnification. Seller shall, at its expense, defend, indemnify and hold harmless Buyer and any Indemnitee against any and all Losses arising out of or in connection with any claim that Buyer’s or Indemnitee’s use or possession of the Goods infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. In no event shall Seller enter into any settlement without Buyer’s or Indemnitee’s prior written consent.
19. Insurance. During the term of the Order and for a period of 6 months thereafter, Seller shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than $1,000,000 with financially sound and reputable insurers. Upon Buyer’s request, Seller shall provide Buyer with a certificate of insurance from Seller’s insurer evidencing the insurance coverage specified in this Order. The certificate of insurance shall name Buyer as an additional insured. Seller shall provide Buyer with 30 days’ advance written notice in the event of a cancellation or material change in Seller’s insurance policy. Except where prohibited by law, Seller shall require its insurer to waive all rights of subrogation against Buyer’s insurers and Buyer or the Indemnitees.
20. Compliance with Law. Seller is in compliance with and shall comply with all applicable foreign, federal, state, local, provincial, and other laws, regulations and ordinances. Seller has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under the Order. Seller shall comply with all applicable export and import laws of all countries involved in the sale of Goods under this Order. Seller assumes all responsibility for shipments of Goods requiring any government import clearance. Buyer may terminate this Order if any government authority imposes antidumping duties, countervailing duties, or any retaliatory duties on the Goods.
21. Termination. Buyer may terminate this Order, in whole or in part, at any time with or without cause for undelivered Goods on 7 days’ prior written notice to Seller. In addition to any remedies that may be provided under these Terms, Buyer may terminate this Order with immediate effect upon written notice to the Seller, either before or after the acceptance of the Goods, if Seller has not performed or complied with any of these Terms, in whole or in part. If the Seller becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then the Buyer may terminate this Order upon written notice to Seller. If Buyer terminates the Order for any reason, Seller’s sole and exclusive remedy is payment for the Goods received and accepted by Buyer prior to the termination.
22. Limitation of Liability. Nothing in this Order shall exclude or limit:
(a) Seller’s liability under Sections 15, 17, 18, and 24 hereof; or
(b) Seller’s liability for fraud, personal injury or death caused by its negligence or willful misconduct.
23. Waiver. No waiver by any party of any of the provisions of the Order shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the Order, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from the Order shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. 24. Confidential Information. All non-public, confidential or proprietary information of the Buyer, including, but not limited to, specifications, samples, models, patterns, designs, plans, drawings, documents, data, business operations, customer lists or other customer data, pricing, discounts or rebates, disclosed by or on behalf of Buyer to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the Order is confidential, solely for the use of performing the Order and may not be disclosed or copied unless authorized by Buyer in writing. Upon Buyer’s request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is:
(a) in the public domain;
(b) known to the Seller at the time of disclosure; or
(c) rightfully obtained by the Seller on a non-confidential basis from a third party.
25. Assignment. Seller shall not assign, transfer, delegate or subcontract any of its rights or obligations under the Order without the prior written consent of Buyer. Any purported assignment or delegation in violation of this Section 25 shall be null and void. No assignment or delegation shall relieve the Seller of any of its obligations hereunder.
26. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in the Order shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from this Order.
27. No Third-Party Beneficiaries. This Order is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
28. Governing Law. All matters arising out of or relating to this Order shall be governed by and construed in accordance with the internal laws of the Commonwealth of Pennsylvania without giving effect to any choice or conflict of law provision or rule (whether of the Commonwealth of Pennsylvania or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Commonwealth of Pennsylvania.
29. Arbitration. Any dispute, controversy or claim arising out of or relating to this Order, including the formation, interpretation, breach or termination thereof, including whether the claims asserted are arbitrable, will be referred to and finally determined by arbitration in accordance with the JAMS or AAA International Arbitration Rules, as determined by Buyer, in its sole discretion. Time is of the essence for any arbitration under this Order and arbitration hearings shall take place within 90 days of filing and awards rendered within 120 days. The arbitrator shall agree to these limits prior to accepting appointment. The place of arbitration shall be Pittsburgh, Pennsylvania. The language to be used in the arbitral proceedings will be English. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator shall award to the prevailing party, if any, as determined by the arbitrator, all of their costs and fees. “Costs and fees” mean all reasonable pre-award expenses of the arbitration, including the arbitrators’ fees, administrative fees, travel expenses, out-of-pocket expenses such as copying and telephone, court costs, witness fees, and attorneys’ fees. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of Buyer.
30. Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of this Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Order, a Notice is effective only
(a) upon receipt of the receiving party, and
(b) if the party giving the Notice has complied with the requirements of this Section 30. 31. Severability. If any term or provision of this Order is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Order or invalidate or render unenforceable such term or provision in any other jurisdiction.
32. Survival. Provisions of this Order which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Order including, but not limited to, the following provisions: Setoff, Warranties, Work Made for Hire; Assignment; License, General Indemnification, Intellectual Property Indemnification, Insurance, Compliance with Law, Confidential Information, Governing Law, Arbitration, and Survival.